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IBM's Greatest Hits - Ex. 14, IBM's 4th Set of Interrogatories, RfDs
Thursday, November 16 2006 @ 09:04 AM EST

Here's Exhibit 14, IBM's 4th Set of Interrogatories and 4th Request for Production of Documents, as text. It's another of the 597 exhibits IBM has introduced to support its summary judgment motions that we are gradually putting into text.

The date is March of 2004, and as you can plainly see, IBM asked SCO to provide the following:

INTERROGATORY NO. 15:

For each line of code and other material identified in response to Interrogatory Nos. 1-13, please state or identify (a) whether it constitutes an idea, procedure, process, system, method of operation, concept, principle or discovery and, if not, why not and what it constitutes;...

So when SCO tells the judge, as it did at the last hearing regarding SCO's objections to Magistrate Judge Brooke Wells' June 28 Order, that it wasn't asked to provide lines of code with specificity, is that true?

So you can evaluate for yourself, here is part of what SCO's attorney, Stuart Singer, said at that hearing:

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 create coordinates.

To which, when it was his turn to speak, IBM's attorney, David Marriott, said:

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, 31 momentarily; version, file and line information with respect to every one of the allegedly misused operating system elements.

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 information.

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 systems.

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 of Linux.

Those are the three undisputed facts I would submit are of great consequence to this motion.

In short, SCO didn't just miss; it missed by a mile. This document, Exhibit 14, is one of several interrogatories that IBM sent to SCO, as mentioned by Marriott, and you can plainly see, as can Judge Dale Kimball, that it asks for specificity from SCO, mentioning lines of code with respect to methods and concepts.

*************************

SNELL & WILMER LLP
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
[address, phone, fax]

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

THE SCO GROUP, INC.,

Plaintiff/Counterclaim-Defendant,

-against-

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff.
DEFENDANT/COUNTERCLAIM-
PLAINTIFF IBM'S FOURTH SET
OF INTERROGATORIES AND
FOURTH REQUEST FOR
PRODUCTION OF DOCUMENTS

Civil No. 2:03CV-0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells


Pursuant to Rules 33 and 34 of the Federal Rules of Civil Procedure, defendant/counterclaim-plaintiff International Business Machines Corporation ("IBM") submits

this Fourth Set of Interrogatories and Fourth Request for the Production of Documents to plaintiff The SCO Group, Inc. ("plaintiff").

Plaintiff is directed to give answers to the written interrogatories separately, fully, in writing, under oath, and in accordance with the following definitions and instructions. Plaintiff is requested to produce the documents and things in its possession, custody or control pursuant to the document requests.

Answers to the interrogatories, and all documents and things responsive to the document requests, must be served on the undersigned attorneys for IBM at the offices of Cravath, Swaine & Moore LLP, 825 Eighth Avenue, New York, NY 10019 within 30 days of service of these interrogatories and document requests.

Interrogatories

INTERROGATORY NO. 15:

For each line of code and other material identified in response to Interrogatory Nos. 1-13, please state or identify (a) whether it constitutes an idea, procedure, process, system, method of operation, concept, principle or discovery and, if not, why not and what it constitutes; (b) whether it can be expressed in another way and, if so, how; (c) whether it is in or has ever been in the public domain and, if so, how, and if not, why not; and (d) whether and to what extent it is dictated by factors external to any operating system of which it is part (such as the mechanical specifications of the computer on which a particular program is intended to run, compatibility requirements of other programs with which a program is designed to operate in conjunction, computer manufacturers' design standards, demands of the industry being serviced,

2

and widely accepted programming practices within the computer industry) and, if so, how, and if not, why not.

INTERROGATORY NO. 16:

For each line of code and other material identified in response to Interrogatory Nos. 1-13, please state or identify (a) whether it constitutes expression protectable under copyright law and, if so, by what copyrights and in what specific respect; (b) the origin of the material, including its author(s) and the circumstances of its creation; (c) whether it has been published or distributed without a copyright notice and, if so, the circumstances of its publication or distribution, including when, to whom, to what extent, for what purpose, and with or without what rights.

Document Requests

REQUEST NO. 77:

All documents concerning SCO's responses to Interrogatory Nos. 15 and 16. Instructions and Definitions

Defendant/counterclaim-plaintiff IBM hereby incorporates by reference all instructions, definitions and rules contained in Rule 33 and Rule 34 of the Federal Rules of Civil Procedure and the local rules or individual practices of this Court and supplements them with the definitions and instructions set out in Defendant IBM's First Set of Interrogatories and First Request for the Production of Documents, which are incorporated herein by reference.

3

DATED this 29th day of March, 2004.

SNELL & WILMER LLP

Alan L. Sullivan
Todd M. Shaughnessy

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler
David R. Marriott

Counsel for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

Of counsel:

INTERNATIONAL BUSINESS MACHINES CORPORATION
Donald J. Rosenberg
Alec S. Berman
[address, phone]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

4


SNELL & WILMER LLP
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
[address, phone, fax]

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone]
Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH


THE SCO GROUP, INC.,

Plaintiff/Counterclaim-Defendant,

-against-

INTERNATIONAL BUSINESS MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff.
CERTIFICATE OF SERVICE OF DEFENDANT/COUNTERCLAIM-
PLAINTIFF IBM'S FOURTH SET
OF INTERROGATORIES AND
FOURTH REQUEST FOR
PRODUCTION OF DOCUMENTS

Civil No. 2:03CV-0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

I hereby certify that on the 29th day of March, 2004, a true and correct copy of DEFENDANT/COUNTERCLAIM-PLAINTIFF IBM'S FOURTH SET OF

INTERROGATORIES AND FOURTH REQUEST FOR PRODUCTION OF DOCUMENTS was delivered to the following:

By Hand Delivery:

Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]

By U.S. Mail, postage prepaid:

Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]


Kevin P. McBride
[address]




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