SCO here appeals to Judge Dale Kimball, the presiding judge, to look at the matter afresh and give them a break. But their arguments are really hard to justify. IBM's attorney, David Marriott, at one point calls an argument SCO has raised "a frolic and a
detour into the irrelevant." I think that is putting it mildly. SCO uses the word "claims" instead of "evidence", as you'll see, throughout, as if Wells threw out their claims instead of just disallowing some of their evidence (if you can even call some of this evidence), and at one point SCO's attorney, Stuart Singer, even seems to be trying to argue that patent claims are the same as a claim in litigation. That is absolutely ridiculous, comedic even.
The real issue here, as Marriott points out, is what exactly is it that IBM is supposed to have done? What is missing isn't SCO's claims, and it's more than SCO not providing specificity by the cutoff deadline for putting evidence on the table -- what is missing, he points out, is SCO's *allegations*:
There is no way SCO can argue that SCO doesn't know at this late date what its allegations are or that IBM must somehow figure out what those allegations specifically are on its own. Anything SCO claims it can't know, it could have found out in discovery. Our witnesses at the hearing felt that SCO did well at the hearing and that Kimball might be disposed to grant SCO's requests. I disagree, based on this transcript, and I do so because I think some of SCO's arguments are so off-the-wall, legally, that in fact they had to know that some of what they were arguing could only fly if the judge was confused or not listening carefully. I grant that Singer's skills include the ability to make the preposterous sound plausible, even believable, and I probably shouldn't underestimate that. And predicting anything in litigation is foolish ... the best you can do is say what you think ought to happen. But the effect on me was to laugh. Important logic pieces are askew -- if I had some ham, I could have ham and eggs, if I had some eggs.
Time will tell, of course, and it's not my call but Judge Kimball's that matters, but this was in my eyes a tour de force performance by Marriott -- note how ready he is with specifics when Judge Kimball unexpectedly asks him to speak on a couple of points SCO raises -- and while Judge Kimball may throw SCO a small bone as is his wont, in any just universe, parallel or otherwise, I think IBM ought to prevail.
A big thank you to Chris Brown for picking this up from the courthouse and scanning it for us, and to feldegast who worked with him to get it from PDF to text, and to everyone who helped in the copyediting process, Laomedon, grundy, jwoolley, AlanMilnes, Griffin3, jig, AlanF, charlie_Turner, and TheCornishman (if I have forgotten anyone, email me so I can add you to the honor roll, please), and to all those whose contributions pay for hearing transcripts -- thank you all. As always, this was a huge group effort.
|IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
THE SCO GROUP, INC.
BEFORE THE HONORABLE DALE A. KIMBALL
DATE: OCTOBER 24, 2006
REPORTER'S TRANSCRIPT OF PROCEEDINGS
Reporter: REBECCA JANKE, CSR, RMR
|A P P E A R A N C E S
|FOR SCO GROUP:
HATCH, JAMES & DODGE
BY: MARK F. JAMES, ESQ.
BOIES, SCHILLER & FLEXNER
BY: STUART H. SINGER, ESQ.
SASHI BORUCHOW, ESQ.
SNELL & WILMER
BY: TODD M. SHAUGHNESSY, ESQ.
CRAVATH, SWAINE & MOORE
BY: DAVID R. MARRIOTT, ESQ.
OCTOBER 24, 2006
SALT LAKE CITY, UTAH
P R O C E E D I N G S
* * *
THE COURT: We're here this morning in the
matter of the SCO Group, Inc., vs. International Business
Machines Corporation, 2:03-29 -- 2:03-CV-294. For
plaintiff, Mr. Mark James. There you are.
MR. JAMES: Yes, Your Honor. Good morning.
THE COURT: Good morning.
Mr. Stuart Singer.
MR. SINGER: Good morning, Your Honor.
THE COURT: And Ms. Sashi Boruchow, correct?
MS. BORUCHOW: Yes. Good morning.
THE COURT: For defendant, Mr. David Marriott,
Mr. Todd Shaughnessy, Mr. Michael Burke and Mr. Wing
MR. MARRIOTT: Good morning.
MR. SHAUGHNESSY: Good morning.
MR. BURKE: Good morning.
MR. CHIU: Good morning.
THE COURT: All right. This is plaintiff's
objection to the order of Magistrate Wells. Who is going
to argue? Mr. Singer?
MR. SINGER: I will, Your Honor.
THE COURT: And, Mr. Marriott?
I will, Your Honor.
THE COURT: How long do you need?
MR. SINGER: Your Honor, if I could have up to
40 minutes for the initial argument, I would appreciate
it. I probably could get by in 30 minutes.
THE COURT: The initial argument? That means
how much are you going to need later?
MR. SINGER: I would like to reserve 15 minutes
if I could.
THE COURT: Fifty-five minutes?
MR. SINGER: Yes. There are a lot of issues in
this motion, but I think if I had 30 and 15.
THE COURT: I'll give you 35 and 15.
How much do you need?
MR. MARRIOTT: Forty minutes should be fine,
THE COURT: All right. Go ahead, Mr. Singer.
MR. SINGER: Thank you. Your Honor, we've
prepared a book with certain exhibits, if I could present
it to the Court.
THE COURT: Have you given defendants their
MR. SINGER: Yes, I have. May it please the
Court, we have looked forward to this argument on these
objections for some time. First of all, the issue before
the Court is significant. The Magistrate's order that's
under review and the issues here relate to a significant
number of the technology claims which have been dismissed
without a day in court. And we think that's wrong
for the reasons which I will spend my argument on.
But, beyond that, the order is predicated on
the view that the SCO group and its attorneys have been
derelict in following orders of this Court and have been
sandbagging, laying in wait with certain information that
we have not turned over, to spring it on IBM at some
time, presumably at trial, and that could not be further
from the truth.
We have sought, in responding to this Court's
order of July, 2005, and the interrogatories and other
discovery, to be as forthcoming and complete as possible.
And there is record evidence of that which supports it.
The nature of these items is that every last
coordinate of source code is simply not known to SCO for
each of the items, and we submit that is not a basis on
which those items are to be tossed out of Court without a
There are a number of bases for this -- these
objections. They include the fact that the order did not
have particularized findings for virtually all of the
technology items that have been struck; did not, as
required by Tenth Circuit law, consider alternatives to
striking those actions; did not result from an
evidentiary hearing, although it was based on factual
issues; did not require IBM to prove specialized,
particularized prejudice; did not, as a matter of law, we
believe, follow from the earlier orders that this Court
and the Magistrate Judge had entered; and, finally, does
not rest on any factual basis that shows that SCO has
willfully, intentionally flouted any orders of this
But, before turning to those and the standard
of review with respect to those issues, I'd like to
address how these disclosure items were prepared. As
reflected on tab 1 and tab 2 of the book which we've
presented to you and IBM's counsel, we took the
obligations of this Court's orders in July 2005 very
Before that time, as the Court is aware, there
was a lot of jockeying between the parties as to who had
to provide what discovery, what level of specificity was
needed, a lot of orders on both sides on motions to
THE COURT: That occasionally happens, doesn't
MR. SINGER: I'm sorry, Your Honor?
THE COURT: That occasionally happens?
MR. SINGER: It happens in other cases, and it
happens, as the Court is aware, a great deal in this
case. And the Magistrate Judge and the Court gave us a
substantial amount of discovery that we received in the
early part of 2005. We had experts working with that
discovery, and over principally 2005, we have had,
working with our experts, prepared a comprehensive list
of 294 items that we called the December submission
because they were submitted in December pursuant to the
Court's order, and various interrogatories were updated
at that time pursuant to the Court's orders that have
thousands of pages of supporting exhibits, and almost in
all cases the actual disclosure that is in controversy.
It doesn't just talk about, well, IBM somewhere
disclosed something but reproduces as an e-mail in the
exhibits what we're talking about. This is the
disclosure in question.
The principal -- other than the lawyers, the
principal individual who was involved in that preparation
was a gentleman named Marc Rochkind. He is an expert in
UNIX programming. He is an expert on it, and he offered,
in connection with these issues, a declaration where he
makes clear that, in almost all cases, the actual written
communication constituting the disclosure was provided.
And then, as we reproduce at tab 2, he stated, for each
of the 294 items, "I did everything I could to ensure
that everything we had was disclosed and that it was
organized in the most accessible possible manner."
Counsel to SCO made it very clear that this was
what they wanted me to do. I made sure that every tab
contained a publicly -- containing a publicly available
e-mail had the complete URL address where it could be
found on the internet. He states that he made sure that
versions, lines and files would be cited where available.
There has been no hearing, no evidentiary
hearing in this case, no basis upon which Mr. Rochkind's
sworn testimony, buttressed by the representations of
counsel in open court, that we have provided everything
we have; we are not holding back anything; that the
information that was available on these was provided.
Now, I think it's useful to consider the
information that's being requested that is at the heart
of this order along with IBM's terminology of nine
coordinates of code, even though that never appears in
any Court order that has been rendered in this case, but
it's a useful way to think about the issue.
At tab 3, the breakdown of what IBM talks about
is the nine coordinates of code that they are claiming
are missing, and they are really for each of three areas:
Versions of file systems, operating systems, files within
those operating systems, and lines of code. And the
first one of those three areas is the disclosure itself.
And where there is an item in controversy that involved
source code -- and there's a lot of items that aren't
subject to today's motion that involve source code where
we were able to provide chapter and verse; the version,
line and file. They are not the subject of IBM's motion.
THE COURT: Or of Judge Well's order, right?
MR. SINGER: Or of Judge Well's order. That
order concerns 198 of the 294 items, so there's a lot of
items there where the source code was provided, and where
there isn't a source code disclosure, when the engineer
at IBM who's telling someone in the Linux community how
to do something that we think is protected and doesn't
give them source code, we can't create that source code.
You can't cite the coordinates that don't exist, and
there is no evidence in this record that there are any
such coordinates in the disclosures themselves that have
not been provided by SCO.
The next item is where much of the debate
really centers on. It's origin information; the issue
being that SCO has not, for many of these 198 items,
provided a location of source code either in UNIX or
Dynix or AIX, the systems that we maintain are subject to
our contractual protections.
Now, it's important to note that on almost all
of those technology items, there is a written admission
in the text of the items that it comes from Dynix or AIX.
There is what we would consider an admission of liability
if our contract theories are legally correct. It is an
admission that that particular method or concept comes
out of Dynix. But the technologist did not say that it
comes out of Dynix at this file location and at this line
of code. And our position is: You cannot expect SCO,
and you certainly shouldn't sanction SCO for not being
able to tell IBM what lines of code an IBM engineer had
in his or her mind when making such a method or concept
It's information which, if there is a
particular location, it is uniquely within the mind of
the IBM technologist who's writing an e-mail to the Linux
community saying, "I want to tell you about how we did
this in Dynix," but he doesn't tell them where that's
found in Dynix. If anyone has that information, it's
that IBM technologist, and there is no evidence in this
record that IBM has ever asked its own employees for that
origin information, no position in any expert reports
that they have tried to get it from their engineers.
If those engineers told them, "We don't know
what it is," how can SCO be expected to supply that? And
if those engineers know what it is, then the information
is already in the possession of IBM.
The third category is destination information,
where these disclosures wound up having an impact on
Linux. For virtually every one of the items that has
been struck under this order, we have provided the file
locations where SCO contends that information has
impacted Linux. There has been no indication that we
have been derelict by failing to provide more specific
line identifications in all the lines in that file or
that IBM is prejudiced because they are told where the
file is but there is some question as to which lines in
that file were impacted by that method or concept, and
there is no finding by the Magistrate Judge with respect
Now, I'd like, if I might -- from tab 4, we
have reproduced an exhibit that Marc Rochkind prepared
that relates to each of the challenged items by IBM. A
checkmark in the respective column shows that for the
item on that row, what information was provided. Column
A indicates that the actual disclosure of code or method
and concept was actually provided. Column B indicates
where is the source code reference on those. And those
were always provided. Column C, a checkmark indicates
that somewhere in that item there is an express statement
by IBM that that in fact came from Dynix or another one
of the protected systems.
There is an admission, we contend, of liability
if our contract theories are correct.
And the final column is: "X" indicates that
there have been file locations in Linux identified in our
Now, I'd like, Your Honor, to take a few
minutes to talk about just a handful of examples. I
think the examples illustrate the thoroughness, the
specificity of the disclosures provided. Each of these
examples has expressly been raised in briefs below and in
arguments. None of these examples were expressly
addressed in the June 28 order, but yet all the claims we
have relating to these technology items have been
precluded by that order.
At tab 6 we have an item called differential
profiles. It's item number 146. This was a method and
concept where we had the entire e-mail chain in which the
code submission to Linux is proposed. We had a reference
in there to where you had scripts -- that is the source
code -- from Dynix and where those could be found in
Linux. And as Mr. Rochkind explained in his declaration,
he couldn't go behind IBM's apparent protection on the
internet to get at that source code because it's on an
internal IBM server where that source code is located and
so the most we could do is identify the reference to
where it could be found.
IBM has access to it. SCO does not. But yet
this item, without any discussion in the order, is one of
the items struck for lack of specificity. And I might
note this is an unusual item for another reason. This is
the one example that IBM pointed to in a declaration
filed with its opposition papers of where we were
lacking. So we're taking IBM's own example here and
showing on that example there's specific -- there's
At tab 7, talking about a method and concept
involving locking, and there's source code patches
identified that consist of hundreds of lines of source
code with version, file and line in there. There is an
admission by the IBM developer of that, Mr. Lindsley, who
said this his experience with this came out of things he
did at Sequent, which we believe are subject to our
So, you have specificity here, you have an
admission, but yet this was struck. You don't have
anything in the record that IBM ever went to Mr. Lindsley
and asked him, "Where in Dynix exactly in the source
code -- where were you thinking of when you came up with
this method and concept?"
But if there is such a location, Mr. Lindsley,
who works for IBM, would be the person who knew that.
At tab 8, there's another method called
semaphores, number 53. It's used in the locking
mechanism. Again, the IBM developer, a man named Tim
Wright, says that under -- these are not currently used
in Linux and that the classic coding style in Dynix/ptx
is the following. And we provide the exact source code
that he revealed to the Linux community relating to that
method and concept. He then testified under oath that
that particular code and method came from source files of
Dynix source code.
And we identified specific Linux files that
related to that method and concept and the Linux
developer, a man named Phillips, to whom the disclosure
was made. IBM has, in the briefing on this and the
argument on this said not one word about item 53. There
is no finding about item 53 in the Magistrate's order,
but it has been struck from our case.
Item 38 at tab 9 is another example of checking
for updates in memory. Item 46 at tab 10 on bug fixes is
the same thing. And, in addition to these five examples,
Your Honor, we have cited upwards of a dozen other
examples in the objections we filed together with an
appendix. And we think that it leads to the first fatal
defect in the order below, which is the failure of that
order to make particularized findings required by Tenth
Circuit law if you're going to throw out and sanction a
party in the way which has been done here.
We cite at tab 11 Tenth Circuit case law that
that requires particularized findings for a sanction
order of this type, the Proctor & Gamble case, the Gripe
vs. City of Enid case. You need detailed and specific
findings, and you don't have those here. For virtually
all of the disclosures where we've been dismissed to
present claims to a jury involving that technology, there
is no particularized finding or discussion at all. All
there is, is a Magistrate's statement that all the 198
items were reviewed but are not legally sufficient.
We are not questioning whether or not the
Magistrate reviewed those. That's not the issue. The
point is: We cannot meaningfully address, and the Court
cannot meaningfully review, as the Tenth Circuit said, a
determination that just says, "I've looked at everything,
and these 198 items just aren't sufficient in my view."
That does not meet the requirements of law established in
this Circuit and elsewhere that you have to have detailed
and specific findings.
We think that stems from a second related
failure, Your Honor, and that, as we point out at tab 12,
is the failure to hold an evidentiary hearing. Now, SCO
expressly requested an evidentiary hearing at the
argument in this case. IBM has said, well, we didn't
request it in writing earlier. Well, the first time that
they submitted any evidence their initial motion was a
ten-page motion. No declarations. And it really just
talked about the July 2005 order, not about other
discovery requests. We responded to that fully.
In the reply below is when IBM submitted its
first declaration from Mr. Davis, one of their experts.
Therefore, it was appropriate at oral argument -- and we
submitted then or got leave to submit a responding
declaration from Mr. Rochkind, but at that point you have
an evidentiary conflict, and at that point we asked for
an evidentiary hearing so that these issues could be
decided not just based on declarations or arguments of
counsel but on the facts.
Let's hear Mr. Wright and Mr. Lindsley say,
even though they are the developers from IBM who
disclosed this method and concept, that they don't know
where in Dynix it's found, but yet we should be thrown
out of court on those items because we can't tell IBM.
Some of the issues that an evidentiary hearing
would have been required for: The disputes between the
respective experts; Davis on their side, Rochkind on our
side over whether sufficient specificity was provided;
whether we in fact have but are simply not disclosing
more specific code locations, the idea that somehow we're
sandbagging IBM. And it should be noted that Courts in
many cases have recognize that if there is a concern with
sandbagging, the remedy is -- you don't throw out the
evidence and the detail that's provided. What you do is
you stop that party later at trial from introducing
evidence or disclosing an item that should have been
And IBM has full rights to object if that were
ever to occur later in this case; at the trial of this
case or otherwise, if we say, "Forget the 294 items. We
have item number 295." And they, of course, know how to
object to that. There has not been sandbagging going on,
and this is not an appropriate remedy for it. An
evidentiary hearing could have looked at the prejudice to
IBM on an item-by-item basis rather than a generalized
And it could also have dealt with an item which
is the subject of a separate motion before the Court,
which is the effect of IBM's own actions in this case
after this lawsuit was filed, and directing people in
their Linux technology center to do what's been called
cleaning their sandboxes. Their sandboxes are actually
work spaces where they are working on this. The Linux
technology center is the heart of this lawsuit. That's
where this work is being done.
After this lawsuit was filed, directions went
out, confirmed by Dan Frye, the head of the center, for
those developers to take off their system, to clean their
sandboxes of the AIX and the Dynix code. We think that
is wrong, and we have a motion dealing with that pending
before the Court. But that is also a factual matter that
relates to our ability to come up now with all those code
locations relating to those developers' work.
In addition, as pointed out in the cases on tab
13, the Court did not make any express findings about
alternative remedies. That's required under the
Ehrenhaus case, a Tenth Circuit case, which says that a
lesser sanction needs to be considered before you throw
out claims. There is nothing in this order that supports
it. As I mentioned, there are clear alternatives that
should have been considered. If there is a concern that
SCO is sandbagging someone, that is addressed at the time
of trial by excluding improperly withheld evidence.
Moreover, we argued and still argue that the
specificity and the prejudice involved here should have
been considered in light of expert reports. This order
was entered before the expert process. We have tendered
seven expert reports, IBM eleven, but for a case in which
IBM has throughout the case said our claims are totally
without merit, Your Honor, they have seen the need to
retain no fewer than eleven experts to submit reports in
These are very highly technical issues, and if
one is to make judgments about requisite specificity and
prejudice, that should be done after the expert discovery
process, which has now been done. All the reports have
been tendered, and all those experts have been deposed.
To the extent there is an issue about getting additional
time for discovery of their experts to respond, that is
an additional lesser remedy, again not considered on the
Now I'd like to say a few words, if I might,
about the scope of review. It is our position that this
ruling is dispositive. It is, on its face, a motion --
an order that grants IBM's motion -- they call it this --
to limit SCO's claims. Now, they have tried to backtrack
some in their briefs on that, but, as filed, it was a
motion to limit SCO's claims. And when it is granted, it
does exactly that. It limits our claims.
THE COURT: So your argument is that this is
subject to de novo review?
MR. SINGER: Precisely, Your Honor. And we are
supported in that by a lot of case law. We have cited
that in our briefs, and we have some at tab 15 in this
book, that when the decision has the effect of a
dispositive ruling, de novo review is required. The
Ocelot case from the Tenth Circuit says that -- that was
dealing with a discovery sanction saying it's equivalent
to an involuntary dismissal of a claim. It requires de
novo review. And the Tenth Circuit has indicated you
don't have to look at the label, although in this case
the label on IBM's motion supports our point, but even if
IBM had labeled their motion differently, the effect of
the order is dispositive.
There are 188 claims of technology disclosures
which we contend each and every one of which is a breach
of contract which will, if this order is left in place,
never see a jury, will never have their day in court.
Even less drastic orders and we provide
examples of some of those at tab 16 have been given de
novo review. And as we point out in tab 17, with Wright
and Miller's reference to the Tenth Circuit's approach,
requires the Court to consider the impact of the action
taken on the case.
Your Honor, one of the cases we've cited in
connection with this is a patent case out of New York
where in fact one claim out of a lot of patent claims was
dismissed because it wasn't appropriately -- it wasn't
timely filed. Not 188, but one. And the Court there
said, "That dismisses a claim on which liability could be
found," just like these technology claims dismiss a basis
on which liability could be found, and de novo review is
Now, I'd like to briefly note that even
deferential review is not non-review. IBM has talked
about that the review here should be something like abuse
of discretion or even a dead fish standard. It has to
smell like dead fish. And that's not found anywhere in
the Tenth Circuit case law.
THE COURT: An interesting standard, though.
MR. SINGER: It is an interesting standard.
And I can see why a party who is defending a ruling would
like to invoke it from time to time, but it's not the
law. And, in addition, regardless of the general scope
of review, Your Honor, as the Court knows, issues of law
are always reviewed de novo. The interpretation of this
Court's orders, that's a de novo issue. Whether or not
you should have an evidentiary hearing on particularized
findings, those are matters of law applying Tenth Circuit
precedent. Those are clearly issues that, regardless of
standard of review for the factual findings, have to be
reviewed de novo by this Court.
But as we point out at tab 21, even mixed
questions of fact and law, where it's predominantly
applying the legal principles, calls for de novo review,
even if there's a more limited scope of review generally.
Now, I'd like to discuss next the issue that we
have violated a Court order because we contend that, in
addition to providing tremendous specificity, that we
have not violated any Court orders in connection with
At tab 22, we reproduce what IBM had proposed
this Court include in its July order. It's July 2005
order said that the parties should disclose misuse of
materials with specificity. It didn't say anything about
line coordinates of code. IBM has proposed Language
which talks about providing, for each misused item,
version, file and line of code and origin information.
The Court did not include that in its order. We believe
it was reasonable for the Court not to include it in its
order because the type of specificity required and
available is going to differ depending on what the source
material has. We are being sanctioned as though this was
in the order, when in fact it isn't.
Now, with respect to the nine coordinates of
code -- and I point this out at tab 23 -- there has never
been an express order on the subject. This whole
position -- and I am not going to go into detail on all
these because I think that the briefs set these forward.
What's clear is there is no express orders on the subject
of nine coordinates of source code. That is something
which IBM seeks to glean from these discovery requests.
Until this whole proceeding on the motion to
strike our claims, there has been no consideration or
argument on the level of specificity that should be
provided for method and concept disclosures where source
code is not a part of the disclosure, and there has been
no order, following the December submissions, that tells
us that you need to provide X, Y and Z or you will have
your claims struck. Instead, the order just goes
directly to striking those claims.
Now, I'd like to point out a few things about
the discovery that is now being cited in addition to the
July 2005 order which was the basis for the original
motion. Piggybacked on top of that has been discovery
requests. At tab 25 -- this is IBM's request -- their
interrogatory, principal interrogatory that is at issue
here, does ask for identification of product, file and
line of code. But it qualifies it with the words "where
appropriate," which is an important qualification because
if you don't have a source code disclosure, you can't
Now, I'd like to turn, if I might, Your Honor,
to tab 29 and address what the Court found, what the
Magistrate Judge found to be the most important factor in
entering her order. And that was that at the beginning
of the case SCO defined -- identified in one of its
discovery requests, in a way which the Magistrate
believed would require providing these type of
coordinates for source code. And, first of all, this
issue was never briefed or argued below.
This came in on an expert witness declaration
that IBM sought leave to submit post-argument to respond
to our expert, was granted that leave, and then put into
that expert witness declaration our discovery request
that the Magistrate Judge then relied upon. Without
argument our motion to strike that declaration or to have
an opportunity to respond to that declaration was denied.
So the points here are ones that would have
come out, that those discovery requests qualified
"identify" to where that was appropriate, just like IBM
did in its interrogatory number 1. The order from the
Magistrate says that she assumes that if IBM hadn't given
us source code coordinates on all of this, there would
have been a motion to compel and that IBM must have done
that. And that, in fact, is not the case. IBM didn't do
that, but on these grounds no motion to compel was
This simply is not an appropriate basis, SCO's
discovery request at the beginning of the case and how it
defines "identify" on which any sanction order, let alone
a sanction order dismissing our claims, should be
evaluated. It shows that there is no clear order saying
nine coordinates of source information must be provided
on each technology item or it will be struck from the
case. And such an order would be inappropriate because
there is no finding that in order to make our case, in
order to prove our claims, you have to have that level of
There is an additional basis for why this order
should be reversed. And that is: There is no evidence
of willful noncompliance. At tab 30, repeat the case law
which includes U.S. Supreme Court cases, the Tenth
Circuit case involving Westinghouse, which says if you
are going impose a sanction like this, you have to have
willfulness, you have to have an intentional
Now, IBM says that, well, we voluntarily
assembled these reports, so it must have been
intentional. That would make the standard meaningless.
Our position is: You have to show that we have
information within our ability to provide that we have
withheld and that then it becomes a willful action, and
there is no such evidence. There is simply no evidence
If one turns to tab 33, the June 28 order cites
no explicit evidence of willfulness. What the
Magistrate's order says is that there is no evidence
before the Court to indicate that SCO lacked the ability
to comply, and given our public statements, it would
appear that SCO had more than enough evidence to comply.
We submit that that point is wrong. First of all, there
is evidence that we have provided everything we have.
That's Mr. Rochkind's declaration that says that
expressly. And I quote certain parts of that declaration
at that exhibit number.
And, in addition, SCO's prior public statements
do not indicate and cannot be read to indicate that SCO
has source code coordinates for disputed items. It is
true SCO said, back when it --
THE COURT: What would be the best way to read
those public statements in your view?
MR. SINGER: I think that those were statements
saying we have a lot to offer in this case, a lot has
occurred. I think it involved statements which you
might -- the Court may have observed have not been made
in recent years because we believe that these statements
should be reserved in court. Those were statements in
reaction to a lot of public inquiry and a lot of
attention to this case, which said that we have a lot of
source code, we have a lot of technology items to talk
We have defended each of those statements in an
appendix to the briefs in front of the Magistrate, and I
believe it's also in the briefing in front of this Court.
Those statements are true. Those statements were related
to source code contributions. Most of the items here are
method and concept contributions that were not unearthed
by our experts until 2005 when Mr. Rochkind and some of
our other experts, like Professor Ivey started working
with the discovery and starting drilling down on this.
And there certainly is no statement in any of
the public statements made by SCO in 2003 which says that
we have source code for these items, but, you know, we're
not going to tell you about them. Those items weren't
even identified until 2005. And, you know, we -- whether
or not those statements should have been made when they
had been made or whether or not the Court -- the case
should have been tried only in this courtroom, the fact
is that those statements do not support the finding here
of willfulness or the exclusion of 188 items of
technology disclosures that we have identified in this
case to IBM.
Now, I'd like to note that IBM's showing of
prejudice is also inadequate. They have -- it's
basically an analogy in the Magistrate's order to a
shoplifter from Neiman Marcus being caught outside the
store but not being told what he has taken. And that
clearly isn't the case here. We have provided tremendous
detail, in thousands of pages of exhibits and the types
of examples we have shown. It's more akin to that
shoplifter being told what he has taken but not being
able to, perhaps, cite the catalog number where it
appears in the Neiman Marcus catalog. That would be a
more are apt analogy, we contend.
The final point I would like to make, Your
Honor, is discussed at tab 35 in this report is that this
ruling can be vacated without undue delay to the trial
schedule. We much want this case to go to trial on the
schedule that's set, February of 2007. SCO's expert
reports are complete on these issues. Our experts have
addressed all these items. We can limit the 188 items
going forward certainly to just those set forth in the
Rochkind and Ivey reports, which are not all of those.
We submit that IBM's experts should be able to
quickly respond to these expert reports because their
reports were due only three weeks after this order came
down. And one presumes that they would have been working
on those. They couldn't count on a judge striking these
items from our case. They should get at least those
three weeks. They should even get more time than three
weeks, within reason, and that should go forward along
with the summary judgment consideration that the Court is
engaged in now.
And, if there are any issues which then, at the
time of trial, relate to whether or not a specific
technology item has been identified sufficiently, those
can be raised either in connection with the Daubert
process of experts or at a pretrial conference
at that time, where you have a chance for an evidentiary
hearing and where it can be appropriately handled on a
full record. And we submit that that process would lead
to no delay or, at most, a very short delay in the trial
as currently scheduled and that that would be a fair and
appropriate way of dealing with these issues.
Thank you very much.
THE COURT: That you, Mr. Singer.
MR. MARRIOTT: Thank you, Your Honor. SCO is,
Your Honor, nothing, if not liberal in its accusations of
error. By my count SCO accuses Magistrate Judge Wells of
somewhere on the order of 20 separate errors, and despite
the number of those objections, Your Honor, there are in
fact three simple points that dispose of SCO's
objections, and it is on those points, with Your Honor's
permission, that I would like to focus.
Magistrate Judge Wells, in her order, focused
on two provisions of Rule 37. Rule 37(b)(2) and Rule
37(b)(3), and if Your Honor looks at the book, which has
been provided, at tabs 1, 2 and 3, you will see the
language from those orders -- from those rules, rather.
Under Rule 37(c), Your Honor, a party that fails to
disclose information required in discovery by a Court is
automatically precluded from using that evidence at trial
or at a hearing unless the party failing to make the
disclosure can show either a substantial justification
for its failure to provide the ordered information or
And the three points I'd like to make, Your
Honor, flow from those -- from those rules. The first
point is that SCO failed to provide version, file and
line information as order by the Court and as required by
Rule 26(e). The second point I'd like to make is that
SCO failed to show substantial justification for its
failure to provide version, file and line information.
And finally, Your Honor, I'd like to demonstrate that SCO
failed to show that its failure to provide that
information was harmless.
Now, before I come to the first of those
points, Your Honor, if I may, I'd like to emphasize three
facts that are undisputed and say a word about the
standard of review. The first undisputed fact, Your
Honor, is that the crux of SCO's case is that IBM has
misused, in some respect, the elements of three separate
sets of operating systems, which we depicted, if I can
ask my colleague to hold the chart -- which we depict on
that chart which appears also in Your Honor's book.
IBM is alleged to have misused the elements of
UNIX System V on the one hand, AIX or Dynix on the other,
and Linux as a third set of operating systems. It is
undisputed, Judge, that those operating systems are
comprised of hundreds of versions, millions of files and
billions of lines of source codes, methods and concepts.
Second undisputed fact, Judge, is that because
of the size of the universe of potentially implicated
codes, methods and concepts, IBM propounded a series of
discovery requests which are illustrated at tab 5 of the
book in which, contrary to what Mr. Singer just argued,
IBM asked in very specific terms for. And I will walk
Your Honor through this, with the Court's permission,
momentarily; version, file and line information with
respect to every one of the allegedly misused operating
Undisputed fact number 3, Judge. In response
to IBM's discovery requests, in SCO's final disclosures
of allegedly misused information, SCO failed, as to 187
of its 294 items, to identify even the most basic
identifying information, version, file and line
And if Your Honor will look at tab 6 of the
book which we've provided, you will see there an
illustration of SCO's failings in this respect. As to
not a single one, Judge, of the 187 items did SCO provide
line information relating to System V. Not a single line
of System V code is identified with respect to any of
those 187 items. As to AIX and Dynix, which are
alternative categories, if you look at the middle two
columns, not a single line of AIX or Dynix code is
provided with respect to those two sets of operating
And finally, now, with respect to Linux, SCO
provided line information with respect to three of the
187 items of allegedly misused information. And, as to
those three, Judge, they failed to provide even version
information for the supposed improper disclosures. There
are, by rough estimation, a hundred -- 500 plus versions
Those are the three undisputed facts I would
submit are of great consequence to this motion.
Now, as to the standard of review. SCO argues
that Magistrate Judge Wells' decision is entitled to no
deference, and that is wrong for at least two reasons.
The first reason, Your Honor, is that Magistrate Judge
Wells' decision was, contrary to Mr. Singer's contention,
a non-dispositive order. Non-dispositive orders are
reviewed, as Your Honor knows, pursuant to the clearly
erroneous or clear error standard. A firm and definite
conviction of error is required.
As the Seventh Circuit puts it: The decision
must have the stench of a five-week-old dead,
unrefrigerated fish. Whether or not the Tenth Circuit
has adopted the same language, Your Honor, the fact of
the matter remains: The decision must stink under that
standard in order to be reversed.
Even if, Your Honor -- even if the standard of
review here were de novo, as I propose now to show, Judge
Wells' decision which, frankly, is proper, I would
submit, under any standard of review, should be affirmed.
Let me take you now to the question of whether
the order here was dispositive. An order is dispositive
under the rules and under the governing cases if it
disposes of a claim or a defense in an action. Claim,
for this purpose, is defined, Your Honor, as cause of
action. In SCO's operative Complaint, it asserts nine
cause of action. In its operative Answer to IBM's
Counterclaim, it asserts 14 affirmative defenses.
Magistrate Judge Wells' order does not dismiss, strike or
remove from the case any one of SCO's nine claims for
relief. Nor does it dismiss, remove or strike from the
case any one of SCO's affirmative defenses.
Magistrate Judge Wells entered her order not
prusuant to Rule 12 or Rule 56, she entered her order
pursuant to Rule 37 and Rule 26. Every one of SCO's
claims is, as SCO publicly acknowledged following the
entry of Magistrate Judge Wells' order, in the case. Now
SCO offers several arguments, Judge, as to why that isn't
First. Mr. Singer said this morning that IBM
styled its motion as a motion to limit the scope of SCO's
claims. As Mr. Singer himself pointed out, Judge, the
cases are perfectly clear that it is not the relief
requested, but it is the order entered that determines
whether an issue is dispositive and, in any event, if
Mr. Singer had read the continued title of IBM's motion,
it is about limiting the scope of SCO's claims to the
items properly disclosed in SCO's final disclosures.
Second. Mr. Singer and SCO in their papers
contend that the order was dispositive because it was,
quote, plainly intended to be dispositive. And I refer
Your Honor to page 13 of SCO's reply for that argument.
That is simply not true. The motion IBM brought was
brought under Rules 1, 26, 30 and 37. The order was
decided under Rule 37 and Rule 26. Magistrate Judge
Wells issued an order. She did not issue a report and
recommendation, as one would expect of a Judge who
believed she was issuing a dispositive order.
Moreover, Your Honor's order of reference,
which you will find at page 11 of the book before you, is
quite clear that Magistrate Judge Wells was to proceed
only with respect to non-dispositive matters. And I
would respectfully submit that if SCO had believed, when
it received IBM's motion requesting the relief that it
requested and when SCO argued that motion before
Magistrate Judge Wells, if it had believed Magistrate
Judge Wells could not properly hear that motion, as SCO
now contends is the case, it would have, should have and
could have then objected. It didn't because the relief
suggested is not dispositive.
Next, Your Honor, SCO contends that the order
is dispositive because it affects what Mr. Singer calls
claims or causes of action in SCO's final disclosures.
That, Your Honor, is an interesting effort at relabeling.
SCO's final disclosures contain 294, by SCO's own words,
items. Those items represent collections of evidence to
support SCO's claims. Now, in its papers here, they are
renamed claims with the argument that any effort to touch
upon a claim causes it to represent a cause of action.
That is simply not what Magistrate Judge Wells
was doing, and I would refer you, Your Honor, to page 12
of the book before you where, in her order, Magistrate
Judge Wells, at page 2, made perfectly clear what she was
Sorry, Judge. This is tab 12 of the book.
THE COURT: All right.
MR. MARRIOTT: She says in her quote at the
outset that all evidence needs to be on the table, and,
after it's on the table, there will be a decision. Then
she says: "The current motion focuses on the
interpretation of the Court's prior orders and exactly
what evidence should have been provided. The sanction
IBM seeks --" and she describes it -- " precluding SCO
from using certain alleged misappropriated items."
And I would respectfully submit, Your Honor,
that any reasonable reading of SCO's final disclosures,
under any reasonable reading of SCO's disclosures, they
are collections of items of evidence. They are not
causes of action. If they were causes of action, Your
Honor, SCO would have been required under Rule 15 to make
an amendment to amend its Complaint to assert these new
causes of action. The deadline to make amendments to
pleadings had passed. SCO had sought leave of Court to
make an amendment to the pleading, and it wasn't
Finally, Your Honor, SCO suggests that the
cases are supportive of SCO's view that the order here at
issue was a dispositive one, and I would respectfully
submit that that is not the case. If you look at
Mr. Singer's exhibit, Your Honor, where he lays out three
cases which he says support the idea that the review here
is dispositive, he cites Ocelot, Smith and Lister.
Ocelot, Your Honor, struck a cause of action. Smith
remanded a case and effectively, in doing so, dismissed
it. And the Lister decision denied IFP status and
effectively, in so doing, dismissed the action.
None of these cases stand for the proposition
that an order limiting the scope of claims, like limiting
the scope of evidence permitted to be submitted in
support of SCO's claims is dispositive.
Now, finally, one additional point on the
standard of review. Magistrate Judge Wells' order, Your
Honor, did essentially, as I read it, four things. One.
It found that SCO violated the Court's orders in Rule
26(e). Two. It found that SCO acted willfully. Three.
It found prejudice. And, four. It entered a sanction.
It said SCO would not be allowed to proceed as to
those -- as to those items not properly disclosed.
If you think about it, Your Honor, each of the
three predicates to the actual relief order, none of them
could possibly be considered dispositive in form.
Magistrate Judge Wells construed her own orders and an
order of this Court. Magistrate Judge Wells found that
SCO acted willfully, and Magistrate Judge Wells found
that IBM would have been prejudiced. The sanction could
well have been, Judge, that SCO was to pay a hundred
thousand dollars penalty for having done that. That
alone, the penalty, would be what, under SCO's reading,
would convert the order into something that is
But under Rule 37(c), Judge, where you have a
failure to provide, supported by Magistrate Judge Wells'
other findings, the sanction of being unable to use
evidence in support of your case at trial is automatic.
Magistrate Judge Wells could have said nothing further
other than: Violation of order. Acted willfully.
Prejudice to IBM. And the sanction which now SCO claims
converts her order into a dispositive order would have
been automatic under the rules.
That brings me, Judge, if I may, to the first
of the points I'd like to make, which is that SCO failed
to provide version, file and line information as ordered
by the Court. And for this purpose, I'd like to point
you to tab 16 of the book before Your Honor. You will
see there, Judge, a fold out of an exhibit illustrating
the orders of the Court. There are three orders at issue
here, and there's Rule 26(e).
Mr. Singer said that the orders did not require
and that IBM effectively has made up this idea that SCO
is required to provide version, file and line
information, and I would like, with your permission, Your
Honor, to walk you through these orders and to show you
how it is that these orders, each of them, expressly,
unequivocally required SCO to provide version, file and
line information with respect to each of the supposedly
misused operating system elements.
In her first order of December of '03,
Magistrate Judge Wells required SCO to identify and state
with specificity the source codes underlying its case.
Then she went on, Judge, as reflected in the second
bullet, to require SCO to respond fully and in detail to
IBM's interrogatories; first as to 1 through 9, and then
second, if you look at the third bullet, to 12 and 13.
And I emphasize, SCO was ordered to respond as stated in
IBM's interrogatories define the term
"identify," to begin, Judge, and that definition is
included here in the book, and I won't walk Your Honor
through it except to emphasize that it makes perfectly
clear that what is required is a detailed -- and I
uncerscore the word "complete" description of the
allegedly misused information. It simply cannot be that
one can provide a detailed and complete description of
allegedly misused information without providing version,
file and line information. And the definition goes on to
be -- to specifically mention the provision of line
information and file information, in any event.
But put aside, if you would, Your Honor, the
definition altogether. Forget the definition exists in
IBM's discovery requests and look, if you would, simply
at the requests themselves. Let me read you, Your
Honor -- not to read all of these to you, but take you,
if I may, Your Honor, to interrogatory number 12. And
this can be done with respect to each of these
interrogatories. In the interest of time, I will do it
only with respect to number 12.
SCO is required, Judge, to identify with
specificity, by file and line of code: A. All source
code and other material in Linux.
Let me pause there. If you look at the chart,
Your Honor, by file and line of code, all source code and
other material that would include methods and concepts in
Linux. A file and line information is expressly called
out, despite what Mr. Singer said, in the order.
Now, Your Honor, it is true that the order
doesn't mention version information, but it is impossible
to provide file information and line information without
providing version information because it's as if you had
a street address. You can't give somebody -- you can't
say to somebody, "I live at number 20." You need to tell
them 20 of what street, and you need to tell them where
the street is located. Version information is
SCO has never argued to the contrary.
Magistrate Judge Wells expressly found version
information is required. That, you can contend, is at
least fairly implied. There is, looking at interrogatory
number 12 alone, therefore, an express requirement that
version, file and line information be provided with
respect to Linux. Now, to continue on in the same single
interrogatory. Now, again: Please identify with
specificity, by file and line of code, how the code and
other material derives from UNIX. This, for that
purpose, Your Honor, is UNIX. SCO contends that AIX and
Dynix are derivatives of UNIX System V, versions of
those, and that IBM has, in one respect or another,
So interrogatory 12 expressly calls for, again,
files and lines as to these operating systems. File and
line. And, in any given item, SCO would be required to
provide file and line for either AIX or Dynix. It's not
both in any given instance. So, again, file and line
with, I respectfully submit, version, being an absolute
minimum fairly implied. A single interrogatory, Your
Honor, incorporated as written, without any regard to
IBM's definition of identify, expressly required the
provision of version, file and line information.
And, again, I won't take the time to do it. It
can be done with respect to every one of these
Now, if you would, Your Honor, take a look at
the second of the orders on this list, Magistrate Judge
Wells' 3/3/04 order, March 3,'04 order. Magistrate Judge
Wells begins by requiring SCO to fully comply with her
prior order within 45 days because, as IBM pointed out to
her, SCO then had not complied. The requirements of
interrogatory 12, as incorporated into the first order,
are expressly, then, repeated and included into the
But forget that, Judge. Forget entirely the
incorporation of the prior reference and look at the
highlighted text. These are express quotes from
Magistrate Judge Wells' order of March. Let's start with
the red text. "SCO is to provide and identify all
specific lines of code from UNIX System V from which
IBM's contributions --" again, contribution is not just
code. It could be method or concept "-- from AIX or
Dynix are alleged to be derived." So, again specific
lines are required.
So, if this is the March order, if this is the
'03 order, Judge, now we have the '04 order. Lines are
expressly required as to System V. And, again, I would
argue you can't provide line information without
providing file and version information. It is simply
meaningless without that. Look at the next text, AIX and
Dynix. "As previously ordered, SCO is to provide and
identify all specific lines of code that IBM is alleged
to have contributed to Linux from either AIX or Dynix."
All specific lines. Again, lines required
expressly. Version and file fairly reasonably implied.
And finally, as to Linux: "SCO is to provide
and identify with specificity all lines of code in Linux
that it claims rights to." Again, lines, not just files,
as SCO suggests is sufficient, are expressly,
Now, two provisions there required it. Seven
provisions from the earlier order required it. Now this
Court's -- this Court's 7/1/05 order in which Your Honor
requires SCO simply, in effect, to provide specific
disclosures of the allegedly misused material and to
update its interrogatories accordingly. Again, I would
argue there is no reasonable reading of Your Honor's
order except to say that it requires disclosures at least
along the same lines of specificity as were required by
the prior orders.
Now, entirely independent of the Court's
orders, under Rule 26(e), SCO had an obligation to update
its interrogatories seasonably, which updating obligation
would have required the same information. So you have
three orders and Rule 26(e). The orders have multiple
provisions which, on their terms, without even looking at
the definition of identify, make perfectly clear that
version, file and line information was to be provided.
Now, what does SCO argue, Your Honor, with
respect to these orders? With respect to the early
order, the December 12, '03 order, in fact SCO says
nothing in its opening papers of consequence, if anything
at all, about interrogatories 3 and 6. And I would
submit that any complaint about those is therefore
waived. With respect to interrogatories 12 and 13 -- and
we talked about 12 -- nothing of any consequence is said,
Your Honor, about interrogatories 12 and 13. And I would
invite you to go back and look at SCO's opening papers
about interrogatory 12 and 13.
Magistrate Judge Wells issued the '03 order and
the '04 order in '03 and '04. Any complaint or
objection, any uncertainty that SCO had with respect to
the meaning of those orders is a complaint that should
have been raised within ten days of the entry of those
orders, and an effort now to end run that by arguing that
SCO was surprised to learn or apparently even today still
doesn't believe it is required to provide version, file
and line information, when it is expressly called for in
the Courts' orders.
Now, SCO argues, Judge, that the provisions
simply don't apply to methods and concepts. Mr. Singer
said that this morning, and that has been repeated in
SCO's papers. Two points in that regard: First.
Contrary to SCO's suggestion, many, many of these items
are expressly about source code, and I will come back to
that, eventually, in my second point.
In any case, IBM's requests and the Courts'
orders are plain on their face that they are not limited
to requesting information about code, they apply to all
material in these operating systems, whether you want to
call it code, method or concept. The definition of
identify is clear in that regard as are the requests.
Interrogatory number 1 calls for specificity as to
confidential or proprietary information. Interrogatory 3
talks about information. Interrogatory 4 talks code or
methods. Interrogatory 6, code or methods.
Interrogatory 12, code and other material, and so on.
The arguments raised, Your Honor, in objection
to the proposition that this order is somehow unclear are
simply untenable. And Mr. Singer finally says, with
respect to this Court's '05 order, that that couldn't
possibly require specificity along the lines that I've
just argued because IBM proposed in a proposed order to
the Court the inclusion of version, file and line
information. Therefore, he says, the fact the Court
didn't include it is the best indication that the Court
did not intend to require it.
I would submit, Your Honor, that that reads far
too much into the submission of a proposed wording for an
order and is, in any event, irrelevant. The fact of the
matter is that this Court entered its order in July,
which is only one of three pronged orders that underlie
Judge Wells' decision here at a time when the landscape
and requirements of the Court were clear.
Moreover, I don't believe the argument that the
footnote was somehow left out had some significance was
ever raised in front of Magistrate Judge Wells, and for
that reason, independently, it is not properly raised
The second point, Judge, which I'd like to make
is that SCO's failure to -- that SCO failed to
substantially justify its failure to provide version,
file and line information. In this regard, SCO provides
three arguments. And let me walk through these quickly.
First of all, Your Honor, as a predicate to this,
contrary to SCO's suggestion, it is SCO, under Rule 37(c)
that bears the burden to show substantial justification.
It is not, as he seems to suggest, IBM.
The justifications at issue here supposedly are
the following: SCO says the order is ambiguous.
Plainly, Judge, that is not true, and any contention that
it is has been waived. I won't repeat what I just said.
The second argument SCO makes is that version,
file and line information is simply not available. it
cannot be provided, they say, with respect to methods and
concepts. Well, again, as I said I would come to, not
all of the items at issue here are methods and concepts.
A substantial number of them are, by SCO's own words,
Judge, code. And I would refer Your Honor to tab 18 of
the book before you.
A full list is set out in Exhibit C to the
reply declaration of Randy Davis in support of IBM's
proclusion motion. Here are the words, SCO's words,
describing items that are at issue on this motion. Item
17. Quote, port of discontinuous memory code from ptx to
Linux, close quote. Item 22. Port of PTX NUMA code to
Linux, close quote. And so on. The list of these, Your
Honor, is fuller. It's professor Davis' declaration, and
it demonstrates with, I think, no equivocation that many,
many of the items at issue with Magistrate Judge Wells'
order concern, by their own terms, by SCO's terms, code
and not methods and concepts.
In any event, it makes no difference, Judge,
because there is absolutely no reason why SCO could not
have provided version, file and line information with
respect to methods and concepts. Professor Davis, in his
declaration, makes perfectly clear, common sense
dictates: Methods and concepts do not exist in the
ether. They exist in an operating system, insofar as
they are embodied in source code.
And I refer Your Honor to tab 19 of the book.
As Professor Davis says: "There must be lines of source
code in the program that implement the method or concept.
Methods and concepts employed in an operating system or
any computer program are in the source codes. It could
not be otherwise."
SCO's own technology officer, Your Honor, in
testifying in this case said -- Gupta, G-u-p-t-a, had
indicated in his deposition that the provision of source
code is important to understanding version and file. It
is important to understanding methods and concepts.
Mr. Rochkind, of whom Mr. Singer speaks, SCO's expert,
has written on the subject of operating systems and used
in his writing on operating systems source code to
describe methods and concepts. Whether or not it is
available in every circumstance, it is beyond debate that
methods and concepts can be and must be, if to be
understood precisely, understood in terms of the source
code that embodies them.
Now, finally, Mr. Singer says in this
connection that the problem with Magistrate Judge Wells'
order, Judge, is that it requires SCO to read IBM's mind,
that SCO has no means to figure out what it is that IBM
supposedly did wrong because IBM hasn't told them. That,
Your Honor, is, I respectfully submit, a frolick and a
detour into the irrelevant.
And that is simply because what IBM's discovery
requests ask for is SCO's allegations. What is it, after
all the billions of lines of code that have been
produced, the millions of pages of paper that have been
produced and all the depositions taken, what is it
precisely that IBM is supposed to have done, so that IBM
can prepare a defense with respect to that. That's what
was asked for. That's what was required, and that's what
the evidence, I would submit, unequivocally demonstrates
could be provided if SCO would disclose what its
That is what has been withheld, its allegations
about what IBM has supposedly done. In any event, Your
Honor, SCO raised this argument that it shouldn't be --
it couldn't possibly be required to tell IBM the
particularity of its claims in advance of IBM telling SCO
what IBM had supposedly done in 2003 and 2004.
Magistrate Judge Wells rejected the argument then. SCO
didn't appeal from the order, and it is not an argument
that can be timely raised now.
And, finally, with respect to willfulness, SCO
suggests, in an effort to justify its failure to comply,
it acted in good faith and that it didn't act willfully.
Again, here, if anyone bears the burden to demonstrate
the justification for SCO's failure, it's SCO. And the
record evidence here, I would respectfully submit, is
overwhelming that SCO acted willfully. Indeed, Your
Honor, I believe that evidence fairly can be read to
create inference of that faith.
IBM repeatedly requested the disclosure of
version, file and line information over the course of
years. IBM made motions to dismiss. This is not an item
buried somewhere in a footnote. This is not an item that
came up by surprise. From the beginning of this
litigation, we have been seeking version, file and line
information. Two motions to compel were made. Three
orders of the Court were entered. IBM, during this
period of time, communicated with SCO and indicated to
SCO that we believed SCO was not in compliance; that we
would bring this motion if SCO did not bring itself into
Magistrate Judge Wells made perfectly clear,
warning SCO in chambers at the beginning of the case and
on the record later in the case, that the evidence must
be put on the table, that evidence not put on the table
would not be allowed to be used.
SCO asked nothing less of IBM in its discovery
requests where, with respect to methods and concepts, it
defined the term "identify" to include version, file and
line information. Without the information requested,
Your Honor, it simply is not possible for IBM to be in a
position to defend itself. The mere fact, which I submit
is not supported by the record, that SCO believes that it
it subjectively thought it was in compliance is not
enough to justify SCO's failure here to comply.
There is not evidence of subjective compliance,
and, in any event, the mere subjective belief that a
person is compliant with a Court order is not, by itself,
sufficient to justify its failure to comply. It simply
cannot be that they can not comply with three orders of
the Court and then shift, on the strength of an argument
that, gee, we thought we could, the burden to IBM, the
impossible burden to IBM of having to figure out for
itself what it is SCO's case is about.
SCO asks, in effect, Judge, to be rewarded for
its failure to comply and have IBM punished by an
inability to figure out what SCO's case is about.
Last point, Judge. I'm getting close.
THE COURT REPORTER: But you don't have to
MR. MARRIOTT: Okay. Last point.
THE COURT: She says.
MR. MARRIOTT: I will hurry, but I will hurry
THE COURT REPORTER: Thank you.
MR. MARRIOTT: Point 3. SCO failed to
demonstrate that its error here was harmless. Here,
again, the burden is on SCO, and even if it weren't,
Judge, the record here amply demonstrates prejudice
following SCO's disclosures. The argument seems to be
that IBM can figure out for itself what it did because,
again, it did it, so nobody knows better than IBM.
"And, by the way," SCO says, "we've given them
a whole bunch of stuff, and it's enough stuff for them to
generally figure out what we're talking about, and if
they haven't figured it out, they can go and get their
developers to sit down in a room and talk to them about
it, and they will tell IBM what they actually did."
Your Honor, let me refer you to tab 92 of the
book. Mr. Singer talked about -- I'm sorry. It's not
tab 92, it's item 92, which appears at tab 26, item 92 of
SCO's final disclosures.
In the spirit of giving Your Honor a flavor for
SCO's allegations, this is item 92. It says that IBM
contributed Dynix/ptx code to Linux from Michael, who
appears to be a former Sequent employee. So the
allegation -- what we're told in this final set of final
disclosures, which SCO argues has all the specificity
required by Magistrate Judge Wells, all the specificity
that could reasonably be required, all that IBM needs to
defend itself, we're told what we were told in the
Complaint. IBM took code from Dynix and it put it into
Now look, if you would, Your Honor, at the next
page. Much of SCO's argument is: Judge, we have given
them the actual disclosures. What do they want from us?
They have been handed the documents.
This is one of the documents we have been
handed, not unique among the particularity provided: An
anonymous posting somewhere on the internet by a person
purported to be called Michael, purported to have been a
former employee of IBM saying that Sequent didn't get
into the business of contributing Dynix/ptx code to
Linux, IBM did. That's it.
Now, contrast that, Your Honor, with the
scope -- look at tab 24, if you would, of the book.
Again, to end where I began. The scope of code
implicated by SCO's claims is substantial. Millions of
files. Billions of lines of code. And IBM is told:
Your guys did it. Figure it out for yourself. SCO
declined to provide version, file and line information.
That is undisputed. And the table laid out in this book,
I think, makes that clear.
It is simply not possible, contrary to
Mr. Singer's suggestion, for IBM to simply figure out for
itself what is at issue. The haystack is enormous, and
while we could in theory search the haystack of this code
for the allegedly misused information, the real problem
here, Your Honor, is that the needles that we have been
sent to find are undefined needles, as defined in item 92
of SCO's final disclosures.
There are numerous additional reasons why the
complaints made here lack merit. They are set out in our
papers, Your Honor. Magistrate Judge Wells' order did
all that it could properly have done with respect to the
187 items at issue here. It granted IBM's motion. It
afforded relief that was, in any event, automatic under
Rule 37(c). Your Honor should, respectfully, overrule
SCO's objections. Thank you.
THE COURT: Thank you.
MR. SINGER: Your Honor, I'd like to start by
talking about one of the points which Mr. Marriott
mentions in quoting from the Magistrate in trying to
argue the order concerned evidence, not claims, refers to
the Magistrate saying, "I don't want either side to use
information that has been withheld. I want all the
evidence to be on the table for the other party to
analyze and take a look at."
But the order here does not do that. The order
takes the evidence we have put on the table, takes the
items that relate to that evidence and says we cannot
take those to trial. It takes the items we have
disclosed and excludes them from the case, and the
evidence relating to those items, none of which could be
used to support it and takes them out of the case.
It doesn't say: The things which you haven't
disclosed, you can't use. And, similarly, Rule 37(c),
which, first of all, a sanction like this is not
automatic. There is no case law or anything indicating
there is anything automatic about precluding claims, but
Rule 37(c), which Mr. Marriott points to, says that when
a party without substantial justification fails to
disclose information required by Rule 26 or to amend a
response to discovery then, unless its harmless, it shall
not be permitted to use as evidence at trial any witness
or information not so disclosed.
It doesn't say anything about putting an order
saying that your claims aren't in the case, that you can
limit and exclude all this evidence on all these claims
that are on the table, which goes directly to the point
we have made. We are not sandbagging anyone, but the
remedy for a party that sandbags in litigation is at the
time when the evidence comes out of the bag and in open
court it's excluded. It's not an order which takes all
the evidence we have presented, all the items we have
presented and says those are out of the case.
The second point we'd like to make is that, as
indicated by IBM's own chart, it is IBM that uniquely
would have origin information. And most of the dispute
here is really about origin information on methods and
concepts because IBM has never shown, and Mr. Marriott
doesn't suggest that on the methods and concepts that
have been disclosed -- there is origin information that
we simply haven't provided because we have quoted the
whole disclosure. If it's too general, if it's too
imprecise to be actionable, they can make a motion for
summary judgment on it. They can move later that it be
excluded as too general.
Perhaps the example, tab 92, which is raised by
Mr. Marriott the first time here -- it hasn't been raised
below. It hasn't been raised in briefing. This is the
first time that example comes up -- if that one is too
general, it should be excluded, but you don't throw out
all these parts of our case.
Dynix and AIX are operating systems that IBM or
Sequent, which IBM bought, developed. They developed
them under licenses that said they cannot disclose
information that comes from derivative systems. That is
our contract argument. The individuals who worked on
making these disclosures from Dynix and AIX into Linux
are people at IBM. They are the ones who, if you can say
what line of code I was thinking about in Dynix when I
was making that method and concept disclosure, it is an
Now, on that point, what does Mr. Marriott say
near the end of his presentation? He says, "Well, SCO is
the one who has to specify its allegations." We have
We have said, "It is the disclosure of this
method and concept that is wrong, and here is the whole
But we can't tell IBM what Mr. Hysega, who
works for IBM, had in his mind when he said, "This came
from Dynix, and I'm disclosing it." if he didn't put that
in writing in his disclosure. Either no one knows that
because it didn't come from a specific place in code or,
if it is known, it's known uniquely to Mr. Hysega. The
same is true for Mr. Wright and all the other developers
Mr. Marriott said nothing about what we have
said throughout this case -- or throughout this motion.
They have not addressed the fact that they even asked
their developers, "Where in Dynix or AIX did you get that
method or concept?" Where is the record saying that
those people don't know? And if they don't know, how
does SCO know that origin information?
Now, the destination information is different.
We admit that interrogatory 12 calls for destination
information in Linux. We have provided file information.
With respect to versions, they weren't expressly called
for by the order. Mr. Rochkind, in his declaration, said
that the disclosures apply to all versions of Linux after
that disclosure has been made. And there is no showing
anywhere that that is somehow unworkable for IBM to deal
with. And as to lines, we have identified the files.
That refers to all the lines in those files.
There is no showing that we had more specific
information within a given file of Linux and we didn't
disclose it. There is no showing that IBM or its experts
can't work with the file information that has been
provided and that that is a basis for throwing out these
claims relating to those disclosures.
Now, one of the points which has been made is
that de novo review, they suggest, is not required here
because we are not dealing with evidence -- we are not
dealing with claims, we are just dealing with evidence.
The fact of the matter is, is the Courts that we have
cited at tab 16, when you throw out all the evidence
relating to a claim, you have disposed of that claim.
These are claims that, if we prove they have breached 188
methods and concepts or even some subset of those that
have been excluded, that can support our contract breach,
independent of the claims that haven't been excluded,
just like the case we cite which threw out -- which said
you had to use a dispositive, de novo scope of review
when just one patent claim, of a number of patent claims,
was resolved. The cases cited at tab 16 involve
sanctions and deal with de novo review.
I'm not going to belabor the standard of review
point. I think that it's clear that there is no legal
support in this Circuit for what one Court characterizes
as a dead fish standard, but the standard is de novo
review if it has this effect. It is not denied that it's
de novo with respect to legal issues. And what is the
significance of that? Mr. Marriott does not address the
fact that you need particularized findings. It's simply
not enough to say that all of these are grouped together
and then to talk about an example here, one example out
Did Mr. Marriott address any of the five
examples that we addressed here, which have been
addressed earlier, including example 146, where the only
source code known is hiding behind an IBM fire wall that
we can't get at, but that's been struck from our case?
Has it addressed any of the other examples that are in
our papers or the appendix, dozens of examples? It
hasn't. You have to decide an issue like this on an
item-by-item basis, and that is the type of
particularized finding that the Tenth Circuit has
There should be an evidentiary hearing if you
are going to go down this path before striking these.
That also is not responded to. There needs to be a
consideration of alternatives, the Tenth Circuit says, to
the sanction of striking a claim. Here, the very
authorities that Mr. Marriott points to, Rule 37 and the
colloquy with the Magistrate, as well as Rule 26, talk
about a lesser sanction that is perfectly appropriate
for the concern they have.
If we seek to use information that hasn't been
disclosed, they can object and say that should have been
disclosed earlier. It is not, however, a basis for
preventing arguments for what has been put on the table
and the information that we have.
Now, in addition, I'd like to turn to the issue
of whether or not this order required disclosure of the
nine coordinates. First of all, I think it's clear that
the nine coordinates is something which IBM has derived
from the various interrogatory requests that was not
required. This Court's order in July talks about
specificity. IBM suggests it's irrelevant that the Court
didn't adopt its language. I ask: If that's so, why did
they propose it? If it was irrelevant, why did they ask
the Court to enter into it?
We think that -- and the briefs pars through
all of the orders and interrogatories if you look at them
closely. Our position is: While we have provided
everything, they certainly never had a requirement that
for a method and concept disclosure that SCO identifies
what was disclosed, we had to go back and say where that
is found by line in AIX or Dynix or face dismissal of our
case on those items. That never happened.
What happens is you have interrogatory 1 that
expressly used the language, "modify where appropriate."
We have interrogatories 3 and 4 which, at tab 27, we
address. They refer back to the information in
interrogatory 1, and they don't seek identification of
product file and line information. And that's true of
interrogatory 6 as well. That identifies the products in
which the code is included, and we have admissions here,
admissions we contend of liability, saying this comes
from Dynix, that is both sufficient to answer
interrogatory 6 and is as complete information as SCO
On interrogatory 12 and 13, we address that at
tab 28 as well as in our briefs. Tab 12 addresses Linux
files, where we have provided all the information in
Linux that we have as to where that is located, and there
is no denial as to the file-specific level of
information. In interrogatory 13, which says, "Describe
how IBM is alleged to have infringed plaintiff's rights,"
that interrogatory made no mention of version, file and
If you look at their own exhibit, tab 16, and
the AIX and Dynix part in blue, what is asked for? SCO
is ordered to provide and identify all specific lines of
code that IBM is alleged to have contributed to Linux
from either AIX or Dynix. And we have done that. Where
there is an allegation that code has been contributed,
that has been specific. For example, disclosures of JFS,
a whole file system, are done specifically. It's not
subject to this motion. The issue here is not where IBM
is alleged to have contributed code from AIX or Dynix,
but to have used methods and concepts, through knowledge
of those systems, to disclose confidential information,
to talk about a method and concept, like those five
examples illustrated. And that can be done without code,
as Mr. Rochkind indicated in his declaration.
There is an issue raised that we have waived
this because we didn't object to these discovery requests
in 2004 or 2003. Our objection is not to the discovery
requests, as such. It is the interpretation that is
being placed on them here and is part of the motion to
throw these claims out of Court, that if we don't have
this information, that it's our obligation with respect
to methods and concepts, that IBM shouldn't be expected
to ask its own employees, who made those disclosures:
Where did they come from?
Those items have only come up since the
December disclosures have been made, and they have come
up in this motion. There has never been any earlier
orders to deal with that. And certainly, with respect to
the issue of whether or not the sanction is appropriate,
whether or not this order is appropriate, we are on
direct review of that, and none of those issues are
Mr. Marriott says that SCO has not justified
its failure because he points to one example of an item
which he says is too generally provided, too abstractly
provided, never going through item-by-item either the
examples we give, and what he has actually proven, we
submit, Your Honor, is the need, if you're going to go
down this road, for some type of item-by-item process to
look at those. And the way in which we submit it is
appropriate to do that, if you're going down that road,
is after the expert reports are considered and after
expert discovery addresses that, which is where we are at
And then, if they want to make a motion before
trial saying that item number 92 still remains too
general for us to properly form a defense, then you deal
with that item and, if they're right, that item doesn't
come in. But it doesn't mean that all the items which
are specific and where we have provided all the
information we have, that those items are out of the
He refers to Mr. Gupta. How did Mr. Gupta's
testimony come in? It came in not in the Magistrate's
hearing or in papers filed by IBM. It comes in in the
Davis declaration submitted post-argument, appended to
it. And it's clear that Mr. Gupta, throughout his
deposition says and identifies a lot of methods and
concepts without using source code to do so. And he
says, which is true, that you can do so more accurately
when you have the source code.
It doesn't mean that there are methods and
concepts which you can't talk about and identify without
source code or that SCO has or should be expected to know
everything in IBM's mind about the source code they were
thinking about when making a method and concept
disclosure that didn't involve source code specifically.
In any event, how is it appropriate for, in a
non-evidentiary setting, in a non-adversarial setting,
since we weren't even allowed to respond to Mr. Davis'
declaration, which submitted parts of Mr. Gupta's
testimony, for now that can become the basis for
supporting a sanction order? How is it appropriate --
and Mr. Marriott doesn't even address the issue -- for
the Court to look at a discovery request SCO made in June
of 2003, which talked about identify, and which the
Magistrate Judge said was the most important factor in
her decision, when that comes in after argument in Davis'
declaration? And when you look at all the circumstances,
it's clear it didn't support that decision because it
also was modified by the terms "where appropriate" in
With respect to willfulness, there is not one
example on this record, Your Honor, of where any
information has been proven to exist with SCO which has
not been turned over. The Rochkind declaration is the
only evidence on this record that addresses that. And
that says, "I was instructed by SCO's counsel to provide
everything we had, and we provided everything we had."
Faced with that, how is there support for finding that we
were willfully withholding information? The two sources
of support that the Magistrate refers to don't support
There is the reference to the public
statements, which don't relate to that, and there is the
reference to the fact that you have certain source code
disclosures and for source code disclosures, you make
that. There is no proof of anything we are withholding,
and we don't know what more we can do, other than an
evidentiary hearing, put our witnesses on to say that.
There is no case which we're aware of, and there is no
example IBM has provided where a sanction striking claims
has been ordered where a party has provided the type of
information we have provided, saying what our allegations
are, identifying these are the method and concept
disclosures that we are talking about, none others, but
where the party, because it hasn't been able to go back
and relate those to a particular underlying program with
the specificity that one would in an ideal world perhaps
have, where that results in those claims being struck.
There is no precedent for a Draconian sanction like that.
So, procedurally, there is no basis for it.
Substantively, there isn't a record to support that, and
the decision would be without precedent. Your Honor,
these claims should be resolved on their merits at trial.
THE COURT: Thank you.
Mr. Marriott, let me ask you about a couple of
Mr. Singer's complaints. He complains that Judge Wells
did not make particularized findings. I'd like you to
briefly talk to me about that. He complains that SCO
requested an evidentiary hearing and didn't get one.
Could you talk to me briefly about that. And, also, it's
clear from his argument that he believes that claims have
been stricken, and it's clear from yours that you don't
believe claims have been. Talk to me briefly about that.
MR. MARRIOTT: Sure, Your Honor. Thank you
for the opportunity. First, with respect to
particularized findings. Particularized findings are not
required, and I would refer Your Honor to the Penn
decision from the Tenth Circuit, 528 F.2d 1181, 1975.
Magistrate Judge Wells issued -- and additional cases,
Your Honor, I believe are in our papers. Magistrate
Judge Wells issued a 39-page opinion which makes
abundantly clear that she looked at the items in
question. The only findings that matter as to
particularity are whether or not SCO provided that which
was required and which was put at issue in IBM's motion.
What was that? We asked for version, file and
line information. It's undisputed they didn't provide
precisely what we asked for, Your Honor. There is not
any debate about that. If you look at Exhibit 6 to the
book, is there a single line of System V code provided
for any of the 187 items? No. Undisputed. Magistrate
Judge Wells acknowledged that. What more particularized
finding could there be? With respect to AIX and Dynix,
were there any lines of AIX and Dynix code provided?
None. Zero. Nil. Not a single one was provided. What
more particular finding could one enter?
With respect to Linux, as to the 187 items,
Your Honor, three of the items identified lines of code.
Three. And as to those three items, there were no
versions provided. So there was no need, Your Honor,
for a particularized set of findings here. It is not
required in the cases, only that level of findings
necessary to permit this Court to undertake review. But,
in any event, Magistrate Judge Wells did do precisely the
type of particularized finding that one could do. She
could have done no more. She found there was no version,
file and line information.
THE COURT: What about the request for an
MR. MARRIOTT: Yes, Your Honor. As to the
request for an evidentiary hearing; again, to begin,
there was no request for an evidentiary hearing made
until SCO's reply papers. Having failed to request an
evidentiary hearing until then, Your Honor, the request
was waived. There is no need here for an evidentiary
hearing anymore than there is for particularized findings
different from what Magistrate Judge Wells did because
those findings are not in dispute. And I would refer
Your Honor, for cases for the proposition that a hearing
is not required, to page 55 of IBM's opposition brief.
An evidentiary hearing was not required.
Now, finally, Your Honor, you asked about
claims. Mr. Singer cited again, in his rebuttal remarks,
the Mopex case from the Southern District of New York.
And he says that what's so dramatically different here is
that Judge Wells has taken SCO's claims, ripped them from
the final disclosures and thrown them from the case, and
they will never be seen again. That's absolutely not
what happened. The claims are in the Complaint. The
theories of liability exist in the Complaint. In its
Complaint, SCO says IBM breached the agreement, this
agreement or that agreement, by violating Version 7.06 of
the IBM and Sequent agreements with AT&T, by violating
Section 2.01 and so on. Specific provisions are
identified as having been breached by IBM.
Magistrate Judge Wells didn't touch any of
those provisions. SCO can proceed with its case with
respect to any theory of liability that it has that is
laid out in the Complaint, notwithstanding what
Magistrate Judge Wells did in her order.
Now, the Mopex case, this case from the
Southern District of New York, Judge Shindler, the Mopex
case supports IBM's view, not SCO's, as to whether the
relief here is dispositive. Why is that the case? Mopex
was a patent case. It involved at least 34 independent
claims of a patent. The Magistrate Judge in the case
found that one of the claims should not be permitted and,
pursuant to Report and Recommendation, said the plaintiff
in the case shouldn't be allowed to proceed as to that
claim. But the patent claim, Judge, is comparable, if
anything, to the provision of the IBM agreements that IBM
is said to have breached. Did we breach Section 7.06?
Did we breach Section 2.01? Magistrate Judge Wells
didn't touch those. Those remain in the case, and the
other remaining items that SCO has in support of its case
can be used to the extent they apply to support those
theories of recovery.
SCO has not lost any claims, however many times
it wants to call its evidence claims, Judge. The
Complaint is intact. The claims are intact. The
theories of liability are intact. And Mopex does not
support that view. In fact, if anything, Your Honor, if
you look carefully at Mopex, you will see that under
circumstances far less severe than these, where the
violations were far less significant than those of SCO,
the Magistrate Judge in that case found the preclusion
should be entered on a far lesser showing, where the
Court more readily than ever would be required here,
found a basis for the relief and request.
Now, if I may make just two additional points
while I'm here, Your Honor. It was suggested that I
failed to describe in detail all of the items laid out by
Mr. Singer. As you well know, time doesn't permit that,
but one of them deserves at least some mention because it
has now been mentioned twice. SCO contends IBM -- it
couldn't provide any additional information because,
again, it's in the minds of the IBM developers. "Who
knows better than IBM," says Mr. Singer, "about the
coordinates within AIX and Dynix?"
Your Honor may remember something called CMVC,
the many billions of lines of code which it was insistent
that IBM produce to put SCO in the position to tell IBM
exactly where it is the code is found. The argument to
get that code at that expense and that effort was so SCO
could be in a position to tell IBM what IBM had been
requesting. We gave the information, Your Honor, as the
court ordered us to do. We, nevertheless, don't have a
single line of code from either AIX or Dynix.
As to the minds of these developers, that's
what depositions are for. The one example Mr. Singer
mentioned, Mr. Hysega, is the only developer I believe
SCO deposed. It was as free as IBM to ask Mr. Hysega
whatever it wanted about what it relied upon or didn't
rely upon. At the end of the day, SCO has to stand up
for any claims that survive the Court's order and be able
to explain and put IBM in a position to respond to what
it is that IBM supposedly did to injure SCO. To simply
say that you took code from here and you put it there
tells us nothing about what that code's value might be,
what impact it could potentially have and so on.
Moreover, Judge, the supposed fire wall, the
document that can't be found? IBM produced the document
to SCO at SCO -- at Bates range 1910678798 through
1910678885, and so far as we have any idea what they are
talking about, this appears to be the document. There is
no reason they couldn't have discovered what's been asked
for in discovery, and notably, at no point, never,
despite IBM's repeated requests about what was required,
did SCO come to Magistrate Judge Wells and say, "We can't
do this. You have ordered version, file and line
information, but it can't be done. It's not possible,
That never happened, Your Honor,
notwithstanding IBM's assertions that SCO was in
violation and that it would bring this motion.
THE COURT: Thank you.
Mr. Singer, you get the last word. This is
MR. SINGER: Thank you, Your Honor. I'd like
to address the particular issues that the Court asked
Mr. Marriott about. Particularized findings.
Mr. Marriott said, "Well, what is it that the Court could
be expected to say?".
Well, first of all, the Court could be expected
to address the other items in the way in which it
addressed a handful of items near the end of her order
and actually left a number of those in the case. The
Court could be expected to address the prejudice to IBM,
whether or not on a specific item it has enough
specificity or not to go forward and defend that item.
The Court could be expected to address whether there's
any evidence in the record that we had the ability to
provide more specific information on that item. There is
no holding by this Court or anywhere else that in order
to prove our case we have to have the file, line and
version relating to these items. And if it's in the CMV
system regarding AIX and Dynix, IBM has it already.
Our -- a factual finding would deal with why it
is that we should be expected to know, on a given item,
what's in Mr. Hysega's mind on that if he works for IBM.
But IBM doesn't know it? There has never been a ruling
saying that a party's claims are thrown out of Court
because they didn't ask in deposition questions,
something of the other side's witness which the other
side already knows. There is no basis for that. So,
there's plenty of factual issues that particularized
findings would be appropriate for her.
The evidentiary hearing. Mr. Marriott is
suggesting that we requested it too late in our reply
brief. Well, first of all, it didn't come in a reply
brief. We never got a reply brief. He was the moving
party on the motion. He got a reply brief. It came in
the argument where in their reply brief, for the first
time, some evidentiary matters were introduced into the
motion. IBM filed a ten-page motion without any
supporting materials. That's what set this process in
place. We responded.
In IBM's reply, they offered Mr. Davis'
declaration, which was evidence. At that point, we moved
for leave to supply the Court with Mr. Rochkind's counter
declaration. And then, at our first opportunity, which
was the argument before the Magistrate, we expressly
called for an evidentiary hearing, which we are entitled
to before all of these type of factual findings that we
have information, that we haven't disclosed it, and the
like, are being made.
The third question that's being asked: Are
claims being stricken or just evidence being precluded?
Well, you have a motion here which says, "Limit SCO's
claims." You have a ruling here that grants that motion.
You have the effect of the ruling that on 188 items, any
one of which would show a disclosure that a jury could
find, if we're right, breached a contract and could
support certain findings. We can't bring those to the
jury now. We are left with the others. Those are, we
think, exactly analogous to the Mopex case, when the
Court is dealing with claims, many claims in a patent,
and a new claim comes along, number 34, that the Court
finds is untimely or the Magistrate found is untimely and
says, "That one you can't proceed on. You have other
claims of breach of infringement of the patent," just
like we have other claims for breach of copyright. They
fall within the same cause of action. But because this
would have independently supported liability of patent
infringement, just like these 188 items could
individually or collectively support findings of breach
of contract, a ruling that excludes those is a
This is not a ruling saying certain categories
of evidence in support of those items can't be used. It
is not a ruling saying things you haven't told us about
in support of these items can't be used. It's saying
those claims are out of the case. That is a dispositive
ruling which this Court is required to review de novo.
I'd like to briefly address the last two items
that Mr. Marriott addressed at the end of the questions.
THE COURT: Go ahead.
MR. SINGER: He said that the CMVC system was
produced. And we have used that, and our experts, as
they have testified, including Mr. Rochkind in his
declaration, used that a great deal to identify code
disclosures. IBM has not pointed to anything in CMVC or
anywhere else that would allow us to say that when these
method or concept disclosures have been made from Dynix
to Linux, we know what their developers had in their mind
as the origins in Dynix.
And they are not being asked to just search for
needles in a haystack. They have the disclosure of the
actual disclosures of the method and concept to the Linux
world. If it was complete and detailed enough to be
valuable, they have the entire disclosure to work with;
to argue it wasn't valuable, to argue the information was
available from other sources. They have as much there as
the Linux world relied on and which we argue was
sufficient to create liability.
The last point which was suggested is that
there is an example of item 146, where we could find that
at some page. All I can say, Your Honor, is that we have
been arguing about Exhibit 146 back since they first
raised it in the Davis declaration. And this is the
first time now, in what everyone calls that, a
sur-rebuttal reply, that that has been referenced. And,
if anything, it shows that if you're going make decisions
on these types of issues, they have to be made on an
item-by-item basis on an evidentiary record.
Thank you very much.
THE COURT: Thank you. Well, I'll take this
happy matter under advisement.
Let me ask you briefly about a couple of other
things. We currently have a trial beginning February 26.
Originally, in the July 1, 2005 scheduling order, I set a
dispositive motion deadline for July 28 of 2006 and, with
that deadline, all the motions would have been briefed by
September 29. They would already be briefed, which was
five months before trial. Now, through several
stipulated extensions, which were taken from you folks,
although I suppose I approved them, so I suppose I'm
partly at fault here, the dispositive motion deadline is
the 25th of September -- was the 25th of September. And
the motions won't be briefed until December 8.
Now, there are ten motions at this point, which
will be briefed by December 8, I assume, but first they
have to be heard and then they have to be decided.
That's not a lot of time to get them heard and decided
before we're all in full scale trial prep.
Any quick thoughts about that? So now, instead
of five months, we have, what, two-and-a-half months
between fully-briefed dispositive motions and a trial
date? And we have ten motions. It's not like it's one
MR. SINGER: Your Honor, we would not minimize
the burden that's on the Court. We've filed four of
those motions. They are each supported by memos of -- I
don't know an exact length, but 20 -- I think 30 pages.
One might be longer, but in that range. IBM has filed
six motions which have over 400 pages of briefing and
over 40,000 pages of exhibits supporting. Faced with
that, we asked for one additional week beyond with what
we had previously agreed to deal with that.
And the reason we only asked for a week is
because we understand the Court needs as much time as
possible to review that before trial, and it is important
to SCO -- we want to get to trial as quickly as possible.
I don't have a specific solution in mind on
that, other than preceding to have an argument, and
perhaps if there are particular issues that come out of
the argument after that, the parties could be directed to
file very short, two to three-page summary briefs that
extract from this larger material what would be relevant
to those particular issues that might help focus the
Court then on being able to extract from this mountain of
paper those items that may be relevant in deciding
whether, in a case of this dimension, there really are no
disputed material facts. We would hate very much to lose
that February trial date.
THE COURT: Thank you.
MR. MARRIOTT: With respect, Your Honor, I
think the last thing we need is more briefs. I, like
Mr. Singer, am eager to have this matter resolved. That
said, candidly, I don't know how realistic it is, in view
of the filing of those ten motions and the current
schedule, to expect that the Court would have time to
hold the hearing and to resolve it and that the parties
would then have the time to deal with that.
THE COURT: In that connection, how long do you
think it would -- how long would it take to hear argument
on ten dispositive motions?
MR. MARRIOTT: Well, I suppose that depends on
how much time Your Honor alots per argument.
THE COURT: How much would you folks want, if
you had your wishes granted?
MR. MARRIOTT: Well, that's an excellent
question, one that I, candidly, haven't spent a lot of
time thinking about. off the top of my head, Your Honor,
what I would say is that it would vary quite a bit. My
motion -- some of these motions are much more involved
than others. I think, at the end of the day, there will
be truly very few facts that are in dispute as to these
motions, and I would like to believe that the issues the
Court would actually hear are relatively straightforward.
I would think any one of these motions, Your Honor, could
be and should be argued in no more than an hour and a
THE COURT: Total?
MR. MARRIOTT: Correct. Both sides.
THE COURT: What do you say to that?
MR. SINGER: Your Honor, my estimate would not
be much different than that. I think if the Court would
set aside a day for arguing SCO's motions for summary
judgment, equally divided time between the parties that
would be available, I think that would be a reasonable
amount of time. It might be a little bit less than an
hour per motion, but some of these motions don't require
an hour. Some of them probably do.
THE COURT: So we might be talking about,
basically, two full days to argue the motions, right?
MR. SINGER: I was suggesting one full day,
THE COURT: Ten motions. I thought you said
one day for SCO's motions.
MR. SINGER: I was thinking one day for both
sets of motions.
THE COURT: Well, if Mr. Marriott is right with
his estimate, that would be 15 hours of argument, and
people might want to eat and go to the bathroom.
MR. SINGER: We have been known to want to do
that occasionally. I agree with Mr. Marriott that on
some of these motions, like there is a contract motion
and others, an hour, hour and a half of argument divided
between the parties makes sense. I think on some of
these, I'm not sure that much time is required, given it
is a much more focused motion.
THE COURT: And one could -- the most brilliant
jurist on earth, I would think, could hardly be expected
to say, on December 9 and 10, when all the briefing is
done by the 8th -- did you say you were asking for
MR. SINGER: That's already accounted for in
THE COURT: In the 8th. All right. -- could
be properly prepared to hear the arguments. There's got
to be some reasonable period of time between the 8th and
the arguments, doesn't there?
MR. MARRIOTT: As eager as I am to have it
resolved, Your Honor, I don't, candidly, think it's
realistic to expect that the trial date can hold, and I
really think it's not feasible, if there is to be any
meaningful opportunity for the Court to prepare, for the
parties to argue, and for the Court to have some time to
consider the motions.
THE COURT: And decide them.
MR. MARRIOTT: And then decide them. And then
whatever is decided is decided, and there may be well be
actions the parties need to take as a result of those.
So, if your bottom-line question is, Judge: Should the
trial date slip?
I think the answer is: Yes, it should.
And, as to the scheduling of oral argument, we
are available to do it at the Court's leisure. It may
well be that counsel can collaborate and coordinate as to
what we believe by way of proposal each side would
require by way of arguments on each motion and propose
that to Your Honor for your consideration.
THE COURT: Why don't you do that. Apparently
you're still talking with each other. This is good. Why
don't you talk to each other before you get away from
town here and send me a proposal about how long you think
it would take to argue these ten motions, and that will
help me find the time necessary to do it, and a
reasonable period of time that I can get ready after the
8th of December.
MR. SINGER: Your Honor, in connection with
that, would your office be able to tell us if there --
what your trial schedule looks like? I mean, we hate to
lose February 26.
THE COURT: But it sounds to me like -- I
think you're going -- I think we're going to lose it. I
don't think we have any choice about that if we want to
give any intelligent consideration to these motions, and
we do. But I'm not prepared to -- I need to think about
how far out it needs to go, and you maybe should suggest
that also in whatever you give to me.
MR. SINGER: I think that the parties, if we
knew for example that there would be -- three months out
on the Court's schedule, there would be time for a
five-week jury trial, we could work back from that.
84 THE COURT:
There's always a whole bunch of
trials set, and who knows what's going to go and what
isn't. We'll just have to figure out the time we're
going to have to do this and plunk it down in there and
work around it. All right.
MR. MARRIOTT: If it makes you feel any
better, Your Honor, we have at least committed with one
another that there will be no extensions of the
opposition dates for responding to the motions.
THE COURT: So December 8?
MR. MARRIOTT: The 8th is fixed, so those
dates are not moving, so that at least is one fixed mark
in this whole affair.
THE COURT: I wonder if I could get ready to
hear these motions on December 23 and 24? No. I'm
I've asked Judge Wells to hear IBM's motion to
strike the allegations in excess of the final
Here's another thing I want to get your quick
reaction to. Novell isn't here, but you both know
there's another case. Is there an argument that that
case ought to be tried first, at least from you two
folks? I'm not asking Novell that. They are not here --
or it is not here. Do you have a reaction to that
MR. SINGER: My immediate reaction would be
that the IBM case should come first, that the contract
claims shouldn't be affected by the issues there. The
copyright claim on which IBM is seeking a declaratory
judgment, and we simply have a similar copyright claim,
that is affected by the question of whether or not those
copyrights were transferred from Novell to SCO. That
issue is one which is -- if that was decided adversely to
us would moot out that aspect of this case.
THE COURT: Do you have a comment?
MR. MARRIOTT: I do, Your Honor. There is, I
think, an excellent argument that the trial of that
matter should come first because there are issues, as
Your Honor well knows, there that would dispose entirely
of causes of action and claims in the IBM case. Just by
way of example: The ownership of the copyrights is an
issue in those cases. If it's found in that case that
Novell, not SCO, owns the copyrights, that cleans up -- a
lot of IBM's motion for declaration of non-infringement
of Linux, for example disappears.
THE COURT: "Cleans up" is your phrase, not
MR. MARRIOTT: I suspect that's right, Judge.
MR. SINGER: Absolutely.
A second issue is that in IBM's
motion for summary judgment on its contract claims, we
have argued and believe that Novell has, by way of the
rights it has under its asset purchase agreement with
Santa Cruse, the predecessor of the Park Corporation of
SCO, has the right to waive the alleged violations of the
contract, and that issue is another issue raised in the
Novell matter and, if decided in favor of Novell, would
preclude relief sought here.
MR. SINGER: Well, that's an issue that we
think is relevant to the IBM matter but not really to the
Novell matter. That is being litigated -- it concerns
Novell, but it is being litigated in the IBM case because
the claims Novell has purported to exercise the right to
waive are claims against IBM that are relevant here.
They are not relevant to the claims between SCO and
MR. MARRIOTT: I agree it's an issue here. I
think it's also an issue there.
THE COURT: All right. Thank you both.
Thank you all. We'll be in recess on this matter.
MR. SINGER: Thank you, Your Honor.
THE COURT: I'll hear from the two of you in a
MR. SINGER: Your Honor, may I, before we
leave, just hold out one item Mr. Marriott raised. We
worked -- we asked for only one week to December 1
because we were trying our best to hold the trial
schedule for February 26. There are over 400 pages of
IBM motions. There are 40,000 pages of exhibits, over a
hundred declarations. If, as part of this
consultation -- and we're looking at a schedule that
pushes this out further, as it looks like now is going to
happen, we would like to ask the Court for at least the
opportunity, if we think we need it, to ask for an
additional week in responding to these motions if this
whole schedule is going to require this additional time.
MR. MARRIOTT: Well, if it's an additional
week, Your Honor, I think I could live with that. I
wouldn't want it to be much more than that because, of
course, then it runs into the holidays on our reply, but
an additional week is fine by me.
MR. SINGER: Thank you.
THE COURT: All right. The 15th? But that
means we are going to get replies when?
MR. MARRIOTT: We could endeavor to do our
replies a week earlier than the schedule and so we could
make the proposal to the Court.
THE COURT: All right.
MR. MARRIOTT: I don't know what I'm getting,
which is the challenge in committing to the time schedule
for the replies, but I think so long as we can work
together to have them briefed by the holidays, that would
probably be fine. That would hopefully meet everyone's
THE COURT: All right. Fine. Thank you.
We'll be in recess.
MR. SINGER: Thank you.
(Whereupon the proceedings were concluded.)
STATE OF UTAH
COUNTY OF SALT LAKE
I, REBECCA JANKE, do hereby certify that I am a
Certified Court Reporter for the State of Utah;
That as such Reporter I attended the hearing of
the foregoing matter on October 24, 2006, and thereat
reported in Stenotype all of the testimony and
proceedings had, and caused said notes to be transcribed
into typewriting, and the foregoing pages numbered 1
through 89; constitute a full, true and correct record of
the proceedings transcribed.
That I am not of kin to any of the parties and
have no interests in the outcome of the matter;
And hereby set my hand and seal this 30th day
of October, 2006.
REBECCA JANKE, CSR, RPR, RMR