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IBM's Memo in Opposition to SCO's Motion for Protective Order (Leitzinger)
Wednesday, November 08 2006 @ 10:19 PM EST

Pacer records more activity in SCO v. IBM. IBM has filed its opposition to SCO's Motion for a Protective Order Regarding Dr. Jeffrey Leitzinger's Personal Financial Information and the time extension flap between the parties has been resolved by stipulation and now signed order.

It turns out to be a much bigger dispute than I expected. IBM is seeking to impeach this expert witness.

From Pacer:

848 - Filed & Entered: 11/07/2006
Notice of Conventional Filing
Docket Text: NOTICE OF CONVENTIONAL FILING of IBM's Memorandum in Opposition to SCO's Motion for a Protective Order filed by Defendant International Business Machines Corporation re [845] MOTION for Protective Order Regarding Dr. Jeffrey Leitzinger's Personal Financial Information and Certificate of Compliance with Rule 37(c) FILED IN REDACTED FORM (Originally Filed Under Seal) (Shaughnessy, Todd)

849 - Filed & Entered: 11/07/2006
Terminated: 11/08/2006
Motion for Extension of Time
Docket Text: Stipulated MOTION for Extension of Time re Deadlines filed by Defendant International Business Machines Corporation. (Attachments: # (1) Text of Proposed Order)(Shaughnessy, Todd)

851 - Filed: 11/07/2006
Entered: 11/08/2006
Sealed Document
Docket Text: **SEALED DOCUMENT** MEMORANDUM IN OPPOSITION to [842]Sealed Motion & to[845] MOTION for Protective Order Regarding Dr. Jeffrey Leitzinger's Personal Financial Information and Certificate of Compliance with Rule 37(c) FILED IN REDACTED FORM (Originally Filed Under Seal) filed by Defendant International Business Machines Corporation. (blk, )

850 - Filed & Entered: 11/08/2006
Mail Returned
Docket Text: Mail Returned as Undeliverable. Mail sent to Frederick S. Frei (djs, )

852 - Filed & Entered: 11/08/2006
Memorandum in Opposition to Motion
Docket Text: MEMORANDUM in Opposition re [845] MOTION for Protective Order Regarding Dr. Jeffrey Leitzinger's Personal Financial Information and Certificate of Compliance with Rule 37(c) FILED IN REDACTED FORM (Originally Filed Under Seal) (REDACTED MEMORANDUM) filed by Defendant International Business Machines Corporation. (Attachments: # (1) Exhibit A# (2) Exhibit B# (3) Exhibit C# (4) Exhibit D # (5) Exhibit E# (6) Exhibit F# (7) Exhibit G)(Shaughnessy, Todd)

853 - Filed & Entered: 11/08/2006
Docket Text: ORDER granting [849] Motion for Extension of Time regarding deadlines. Signed by Judge Dale A. Kimball on 11/8/06.(blk, )

Most of the exhibits on 852 are sealed or cases. The stipulated time extensions, as ordered, actually give each side more time than SCO asked for in the Motion IBM fought, so your guess is as good as mine why it ended up like this. Maybe just Christmas and the scheduling conflict mentioned in IBM's opposition or maybe some factor we just don't know about, or maybe IBM just got mad and wanted the court to understand what it's like killing snakes -- for educational purposes. Dealing with SCOfolk, I believe I may say with some authority, can try the patience of a saint.

The Leitzinger issue is turning into a much bigger deal than I anticipated. The IBM memo begins like this:

Dr. Jeffrey Leitzinger is a "professional witness" who for years has made a very good thing, financially, out of his well known willingness to testify with extreme flexibility to suit the convenience of his many litigation clients.

This is a strong statement. If true, it will be highly relevant to a jury's evaluation of Dr. Leitzinger's credibility as someone supposedly bringing the scientific tools of economic analysis to bear on the complex issues the jury is called upon to decide. The law is clear: IBM is entitled to test whether the financial facts fit this picture (as indeed they will), and if so to use them in cross-examination.

Well. I guess I was wrong on this one. I thought it was probably just a man wanting some privacy, such as you typically see. Instead, this is about SCO not wanting IBM to even ask Dr. Leitzinger any questions about his financial situation, and about IBM wanting to get the facts concerning what it calls Dr. Leitzinger's "litigation-related income" in order to raise questions before the jury about his credibility. It says it is established law that the fees of a "chronic expert witness are legitimate material for impeachment." Impeachment just means to challenge his credibility. Footnote 3 explains the why of it all:

3. See, e.g., Trower v. Jones, 520 N.E.2d 297, 300 (Ill. 1988)("We have long recognized that the principal safeguard against errant expert testimony is the opportunity to probe bias, partisanship or financial interest."

IBM's argument is based on the Econ One business. IBM states that Leitzinger and his family together are the majority shareholders, so "a large portion -- even the majority -- of his personal enrichment from any particular engagement results from time spent on the matter by other Econ One staff, and flows to Dr. Leitzinger (or his family) by virtue of his equity ownership, not in fees or salary." And here is the kicker:

As indicated, Dr. Leitzinger and his family are the majority shareholders of a company which he has built up, arguably based on his willingness and ability to provide the testimony that clients desire. If Dr. Leitzinger were to damage that reputation by failing to testify congenially to SCO in the present case, there is little doubt that this would be a "business development" problem not just for him, but for his company.

SCO will, of course, have the opportunity to respond to this. But IBM has raised an issue regarding this expert witness and his credibility. They have the right, they argue, to explore the facts, to see if there is evidence that will be meaningful to a jury that Leitzinger can't be independent, and isn't independent. Hint to IBM: think Alaskan salmon fishing. I hear there's a lot of money in it.

It turns out that SCO has misrepresented Andrew Morton's financial information. Remember when SCO alleged that OSDL pays his salary? That turns out to be inaccurate, and since they asked Morton at his deposition detailed questions about his salary for some years, they had to know it was false, as IBM tells the court. Here are the facts that IBM presents, and you can feel IBM's indignant anger, which I share, behind the words:

  • Mr. Morton became an employee of Rearden Steel (a fanciful name for a technology company) in 2000. He did Linux-related work there. (Id at 79:14-21.) There is no evidence in the record that any other company bore any part of the cost of his salary.

  • Mr. Morton became an employee of Digeo Interactive ("Digeo") when Digeo acquired Rearden Steel in 2001. Digeo paid his salary from that time through August, 2006, and he did not receive income from any other entity. (See id. at 82:18-24; 85:15-87:13; 90:3-20.)

  • In 2003 Digeo entered into a contract with the Open Source Development Laboratory ("OSDL") under which OSDL paid Digeo some sum unknown to Mr. Morton for "kernel services" performed by Mr. Morton upon the Linux kernel... This contractual relationship between Digeo and the OSDL continued until Mr. Morton left Digeo in August, 2006. Mr. Morton never received any income from the OSDL....

  • In August, 2006, Mr. Morton left Digeo and became an employee of Google Inc.... His salary is paid by Google, and SCO cites no evidence (and we are aware of none) that any other entity pays or reimburses Google for any portion of his salary, directly or indirectly.

Doesn't it make your blood boil? SCO wrote that OSDL "pays Mr. Morton's salary" as if that put him on a plane with Dr. Leitzinger, a professional witness:

8. The sole justification IBM gives for seeking such information -- that SCO sought such information from IBM expert Andrew Morton -- has no applicability here. Mr. Morton's income is relevant for reasons that are entirely inapplicable to Dr. Leitzinger: IBM co-founded, funds, and largely manages and controls the OSDL, which pays Mr. Morton's salary. The payment of salary to Mr. Morton under these circumstances, as well as the amount of that salary, is highly pertinent to the partiality of his opinions in this case.

Aside from it being factually not true (and IBM also attaches an Exhibit D [PDF], showing that there are 70 members of OSDL, and that one of them used to be Caldera), even if it had been, there is no comparison. Morton doesn't make a living from testifying as an expert at trials, and I am sure I may state with confidence that he has no such ambition. SCO has that deterrent effect on us all, I suspect. Once one sees just how mean and lowdown it can get, a bit of the dew is off the rose, shall we say.

SCO did the deposition only two days before Dr. Leitzinger's. They asked Morton detailed questions about his financial affairs, including asking what his salary is at Google and they even asked about his stock options. IBM points out the difference between the two experts, and then it sums up: since SCO got to ask, IBM should too -- "the time-honored principle of 'sauce for the goose' should carry the day."

And speaking of geese, here's a hint for SCO, just to be even-handed: I believe that if SCO tries this kind of denigration of an honorable man at trial, should there even be a trial, they will find the jury will not like it one bit and that SCO's goose will end up cooked. There are a lot of decent, down-to-earth people in Utah, and they are very unlikely to respond well to what will look to them like city slicker slippery half-truth-telling sharpy lawyers trying to besmirch a good man's name. Not saying that is what this is, you understand, just saying that is how it will look to a jury of decent folks. Trust me on this one.

Not that they will pay any attention to my advice. If they had, they wouldn't be in this pickle. I surely tried and tried to warn them about the GPL. But would they listen?


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