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To read comments to this article, go here
IBM's Squashes SCO's Bogo "Spoliation" Claim - Updated, as text
Tuesday, November 21 2006 @ 11:56 PM EST

Hey, remember SCO?

I almost forgot myself. It's hard to focus on SCO when we're now into Son of SCO. Or is it Father? Anyway, there was a filing today, and it's important. SCO, as you'll recall, did some FUDding in the media about alleged spoliation, which some SCO-supporting media types lapped up to the very last drop and made sound like a big deal. Well, here's IBM's side. You'll laugh, snort, and then perhaps get mad at SCO, if you're like me and have a sense of justice. SCO has to know that they are raising a bogus issue, I think, but they did it anyway. What do you call that? I call it a frivolous motion, personally, and I more and more suspect we may well see the court sanction both SCO and Boies Schiller before this is over.

Here's IBM's Redacted Opposition to SCO's Motion Regarding Spoliation [PDF] and Exhibit L [PDF], Todd Shaughnessy's Declaration in support. There are more exhibits, but they are sealed.

What's the bottom line? No evidence was destroyed. No IBM executives sent any directives telling folks to destroy evidence. The most that happened, as far as I can see, was SCO's attorneys asked some trick questions and got a couple of confused answers at deposition, later corrected, and the rest is the bogo part. Just one more manufactured smear against IBM that doesn't bear close examination.

What is spoliation? IBM defines it, quoting from a court ruling in Rowe v. Albertson's, Inc.: the "doctrine of spoliation refers to improper intentional destruction of evidence relevant to a case." To prevail, SCO has to show, among other things, "that his adversary destroyed or misplaced the evidence in bad faith." After it proves that, then the Court considers two factors in deciding whether there should be sanctions: 1) the degree of culpability and 2) the degree of actual prejudice to the other party. (Jordan F. Miller Corp. v. Mid-Continent Aircraft Serv., Inc.) Making a mistake or even negligence isn't enough. You have to have bad faith in the picture. IBM points out what SCO here lacks:

Here, SCO's motion should be denied because it cannot show that any evidence (let alone relevant evidence) was lost or destroyed, it cannot show that IBM acted in bad faith, and it cannot show that it has been prejudiced. In addition, SCO's motion also should be denied because it has expressly waived by stipulation any concerns with IBM's document production, including any concerns about IBM's alleged destruction of source code.

That last is referring to the stipulation where SCO stipulated on March 17, 2006, the last day of discovery, that the parties had met and reviewed each others' document productions and agreed "that ... there are no discovery disputes between them." SCO and IBM attrorneys met repeatedly before drawing up the stipulation, and SCO never said one word about any missing evidence from sandboxes, Shaughnessy relates. That stipulation is docket number 651, which you can always find on our IBM Timeline page. They said this months, in one case more than a year, after they got the testimony they used for this last minute motion. In the case of the email SCO made headlines about, they had it for 2 1/2 years before filing this motion. If SCO's concerns expressed in its motion were genuine, it should have raised them earlier, IBM says:

SCO instead chose to wait to file this motion until after both fact and expert discovery concluded, thereby limiting the options available both to the Court and IBM to address it. By failing to raise this issue at the time of the March 17, 2006, stipulation, SCO waived any and all of its current arguments, and SCO's motion should be denied for this additional reason.

SCO can't prove what it needs to, IBM says, because it didn't happen:

SCO has not, and cannot, identify a single piece of evidence that was lost or destroyed by IBM.

Well, at least SCO is consistent. No evidence is the hallmark of this peculiar litigation. IBM never told its Linux guys or anyone else to destroy evidence or source code relevant to this litigation. The email SCO relies on was sent to 8 AIX programmers who were starting a new project, involving Linux on PowerPC, not LTC guys, and the sender of the email, not an executive, sent it to folks who also are not executives, saying that the project programmers should clean their sandboxes prior to beginning the project because he wanted "to avoid any misperceptions, however ill-founded, that might be created if developers continued to have some ability to access AIX or Dynix while writing code for Linux."

It was an effort to be squeaky clean.

No AIX or Dynix code was "lost", because it is all in the IBM databases anyway and that was all turned over to SCO in discovery. And of the 8 programmers, 4 testified they didn't erase anything, and the other 4 don't remember, but they know that whatever was on there, it would only have been copies of pieces of code from the databases or at most this:

(a) an exact copy of source code that the developer created that subsequently had been incorporated into CMVC; (b) a copy of AIX source code to which the developer had not made any changes, and which would therefore be identical to the AIX source code in CMVC; or (c) a copy of AIX source code to which the developer had made or had attempted to make certain changes, but which changes did not work, or the need for which no longer existed, and whic, as a result, never became a part of AIX at all.

Here's the kicker. In Exhibit L, IBM attorney Todd Shaughnessy points out that none of the 8 developers were listed by SCO as having made improper contributions to Linux. AIX development is done on sandboxes. Sandboxes aren't used for Linux development. That's it. That's the "spoliation". As for SCO's claim that a developer admitted in a deposition that he destroyed code he'd written for Linux while referring to Dynix, that turns out to be inaccurate. SCO is referring to Paul McKenney, who didn't do that at all. Here is what happened, as IBM tells the story:

In fact, while Dr. McKenney did testify to deleting certain Dynix source code trees from his prior work in Dynix, as well as certain tests that were used strictly to validate Dynix kernel functionality (and that are not themselves Dynix source code) from his laptop, these source trees were verbatim copies of Dynix source code modules that are available in IBM's RCS database. IBM has produced the RCS database to SCO and it therefore has in its possession source code that may have been on Dr. McKenney's computer.

The tests removed weren't even Dynix source code, so they have no relevance. And in footnote 16, we find out that whatever McKenney removed from a laptop, it wasn't related in any way to any of this work in Linux. At deposition, McKenney repeatedly, IBM relates, testified that he never referred to Dynix when writing code for Linux and that he never destroyed any drafts of source code written for Linux while looking at or referring to Dynix source code.

So, is SCO just tech stupid? Desperate and so grasping at straws? Or are we watching the meanest law firm in the world? You decide. Here's what I think is the clue as to why this motion is filed at all, this section:

SCO's inability to support its spoliation claim has not been for lack of effort -- much of SCO's discovery in this case has centered around trying to show that IBM deleted or destroyed evidence. But as the foregoing demonstrates, and despite SCO's dogged efforts, it can identify nothing that has been destroyed.

My best guess is that SCO has doggedly pursued this because they already know that their case is hopeless and they wish to provide the court with a reason why they have no evidence after three and a half years of looking. I guess they figure that the only chance they have is to try to win on sanctions, so they manufacture whatever they can cobble together. Or maybe they wish to preserve some FUD for the media. And if some decent folks' reputations have to be trashed, what does SCO care? That's the part I hope the court will notice and decide to do something about at the very end of this horror show.

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

SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[Address]
[Phone]
[Fax]

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

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,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant / Counterclaim-Plaintiff.

IBM'S REDACTED MEMORANDUM IN
OPPOSITION TO SCO'S MOTION
REGARDING SPOLIATION

(ORAL ARGUMENT REQUESTED)

[ORIGINALLY FILED UNDER SEAL]

Civil No. 2:03CV-0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[Address]
[Phone]
[Fax]

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

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,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant / Counterclaim-Plaintiff.

IBM'S REDACTED MEMORANDUM IN
OPPOSITION TO SCO'S MOTION
REGARDING SPOLIATION

(ORAL ARGUMENT REQUESTED)

FILED UNDER SEAL PURSUANT TO
9/16/03 PROTECTIVE ORDER,
DOCKET #38

Civil No. 2:03CV-0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

Defendant/Counterclaim Plaintiff International Business Machines Corporation "IBM")
respectfully submits this memorandum in opposition to the motion regarding spoliation filed by
Plaintiff/Counterclaim-Defendant The SCO Group, Inc. ("SCO").

Preliminary Statement

After having hinted to the Court for months that the inadequacy of its final disclosures is
somehow attributable to IBM's alleged destruction of evidence, SCO now sets forth - in two
cursory paragraphs of a seven-page memorandum - the sum total of its spoliation allegations.
In those paragraphs, SCO relies on an email concerning a project involving a small number of
AIX developers, as well as (at best) ambiguous, out-of-context excerpts of deposition testimony
from Daniel Frye, the individual in charge of IBM's Linux Technology Center ("LTC"). SCO
claims that "IBM executives" made a deliberate decision in the wake of SCO's lawsuit to issue a
"directive", applicable to programmers throughout the LTC, to intentionally destroy documents
that allegedly would have shown IBM's improper reliance on AIX and Dynix source code in
making contributions to Linux. In attempting to tell this story, SCO misconstrues the single
email and the handful of deposition excerpts upon which it relies, none of which even approach
supporting SCO's accusation.

SCO's motion should be denied for at least four reasons:

First, there was never an IBM "directive" to destroy source code, or anything else, as the
very witness upon whom SCO relies testified repeatedly throughout his deposition. In addition,
the "evidence" SCO claims is "lost" is, in fact, in SCO's possession. IBM simply did not destroy
any evidence, let alone evidence relevant to SCO's claims.

Second, in light of the fact that no evidence was destroyed, SCO cannot show, as it must,
that IBM acted in bad faith. On the contrary, the evidence shows that IBM acted in good faith
and has produced to SCO enormous quantities of source code, including the very source code
SCO claims has been "lost".

2

Third, SCO cannot show that it has been prejudiced. IBM did not destroy the evidence
SCO claims it did, but even if it had, SCO fails to show how this evidence would be relevant to
any of its claims.

Fourth, SCO waived any claimed deficiency in IBM's document production on the last
day of fact discovery in this case. On March 17, 2006, SCO stipulated with IBM and represented
to the Court that it had reviewed IBM's document production and had "no discovery dispute"
with IBM concerning it.

In short, SCO presents nothing for the Court to remedy, and its motion regarding
spoliation should be denied in its entirety.

Factual Background

SCO accuses "IBM executives" of having directed "dozens" of Limix developers in the
LTC and "at least ten" developers outside the LTC to delete AIX and Dynix/ptx ("Dynix")
source code from their "sandboxes" or personal workstations in early April 2003.1 (SCO Br. at
3.) SCO next claims that one LTC programmer, Paul McKenney, "expressly admitted" to
destroying pre-March 2003 drafts of Linux source code that he had written "while referring to
Dynix/ptx source code on his computer at the LTC". (Id.) As explained below, each of SCO's
allegations is incorrect:

A. IBM Did Not Direct AIX Developers To Destroy Evidence in Their
"Sandboxes".

1 . In April 2003, IBM's Open Source Steering Committee ("OSSC") met as part of
the first phase of the approval process for the Linux for PowerPC Project (the "Project"). The
purpose of the Project was to improve Linux's ability to run on IBM's proprietary PowerPC

3

hardware platform, and in particular to enable Linux to take advantage of new functionality in the
PowerPC platform. (R. Swanberg Decl. 4 .).2

2. Eight developers had been selected for the Project. Each was a current AIX
developer with experience working with IBM's PowerPC platfon-n. From roughly late 2002 until
approximately July 2003, these developers worked internally on the development of newly-
written, IBM hardware-specific code that would improve Linux's ability to run on the PowerPC
platform. (Id.)

3. Randal Swanberg, Technical Staff Member in IBM's Systems and Technology
Group, attended the OSSC meeting in his role as the strategic technical lead for the Project. (Id.
4.)

4. Following the meeting, on April 8, 2003, Mr. Swanberg sent an email to a group of
IBM managers and team leads (a copy of which is attached as Exhibit G to SCO's
memorandum).3 Mr. Swanberg sought to ensure that the developers working on the Project no
longer had access to copies of old AIX source code that may have been on their workstations as
the result of their prior work with AIX for PowerPC. He did so because this old AIX source code
was not necessary for the work these developers were doing on the Project, and to avoid any
misperceptions, however misplaced, that might be created if these developers continued to have
access to AIX while writing code for Linux. (11/18/05 D. Frye Dep. at 72:1-24; R. Swanberg

4

Decl. 10 .)4 Accordingly, Mr. Swanberg's email informed the managers responsible for those
developers that the developers should not have "old AIX source" on their personal workstations,
including in their "sandboxes". (R. Swanberg Decl. 5.) Neither Mr. Swanberg nor any
individual to whom he sent the email is an IBM executive. (11/18/05 D. Frye Dep. at 68:22-68:3.)

5. An AIX "sandbox" is a development environment used by AIX developers. A
sandbox allows an AIX developer to work on a copy of a portion of AIX code without importing
all of the millions of lines of AIX source code onto his or her personal workstation, usually for the
purposes of bug-fixing, testing code, or writing code with new finictionality. Some AIX
developers use their department's servers for their development work and do not use sandboxes on
their personal workstations at all. A sandbox may contain links to certain parts of the AIX source
code and, potentially, a local copy of a portion of AIX source code a developer made using those
links. Further, all code changes developed in a sandbox that are incorporated into AIX are
available in CMVC.5 (Id. 8.) Sandboxes are used only by AIX developers for development
work on AIX. Sandboxes are not used in Linux development. (Id. 9.)

6. Mr. Swanberg believed that if any of the eight developers had sandboxes on their
workstations, those sandboxes might have contained: (a) an exact copy of source code that the
developer created that subsequently had been incorporated into CMVC; (b) a copy of AIX source
code to which the developer had not made any changes, and which would therefore be identical to
the AIX source code in CMVC; or (c) a copy of AIX source code to which the developer had

5

made or had attempted to make certain changes, but which changes did not work, or the need for
which no longer existed, and which, as a result, never became a part of AIX at all. (Id. 11..)

7. The eight developers assigned to the Project were Linda Xie, Michael Strosaker,
Nathan Lynch, John Rose, David Altobelli, Matthew Fleming, Nathan Fontenot, and Jacob
Moilanen. Mr. Swanberg's statement regarding removing old copies of AIX source code in
sandboxes applied only to these eight individuals. (Id. 7.).

8. Four of the eight developers involved in the Project did not delete any code - in
sandboxes or otherwise - as a result of Mr. Swanberg's email. (L. Xie Decl. 3; N. Fontenot
Decl. 3; M. Fleming Decl. 3; M. Strosaker Decl. 3.) The four remaining developers are
unable to recall whether they may have deleted any leftover AIX code in their sandboxes, but each
has testified that, if they had, all such code would have been a copy of what is contained in IBM's
CMVC database. (D. Altobelli Decl. 3; J. Moilanen Decl. 3; J. Rose Decl. 3; N. Lynch Decl.
3 .)6 IBM produced the CMVC database to SCO in March 2005, and with it verbatim copies of
any code that may have been in any of these developers' sandboxes. (513105 T. Shaughnessy
Decl. 19.)

9. Not one of these eight developers used or relied upon any old AIX code to which
they may have had access to make any contributions to Linux. (L. Xie Decl. 4; N. Fontenot
Decl. 4; M. Fleming Decl. 4; M. Strosaker Decl. 4; N. Lynch Decl. 4; D. Altobelli Decl.
4; J. Moilanen Decl, 4; J. Rose Decl. 4.) Not one of these eight developers has been identified
by SCO as having made allegedly improper contributions to Linux. (11/10/06 T. Shaughnessy
Decl. 2 .)7

6

10. In sending the email, Mr. Swanberg had no intent whatsoever to destroy or to cause
the destruction of evidence or other material that might be relevant to the lawsuit. (R. Swanberg
Decl. 10.)

B. IBM Did Not Direct Developers in the Linux Technology Center to Des!LO-Y
Evidence.

11. Daniel Frye, IBM's Vice President, Open Systems Development - the person in
charge of the LTC - testified throughout his deposition that Mr. Swanberg's email regarding
sandboxes pertained only to the eight developers working on the Project, that these eight
developers were not part of the LTC, and that Mr. Swanberg's email did not pertain to
programmers in the LTC.8 For example:

REDACTED

(11/18/05 D. Frye Dep. at 55:7-19; see also id. at 66:7-10, 67:2-7, 68:22-69:3, 83:5-9.) He again
confirms this fact in the declaration filed with this memorandum. (D. Frye Decl. 15.)9

12. Dr. Frye repeatedly testified that IBM did not issue a directive to developers within
the LTC to delete AIX or Dynix source code from their machines:

7

REDACTED

(11/18/05 D. Frye Dep. at 56:2-7.)

* * *

REDACTED

(Id. at 83:16-24.).

13. Dr. Frye again conf=s in the declaration filed herewith that IBM never instructed
members of the LTC to delete or to destroy source code or any other evidence. (D. Frye Decl.
7.) On the contrary, EBM took steps to ensure that members of the LTC preserved documents
after this lawsuit was filed:

REDACTED

8

REDACTED

(1/12/05 D. Frye Dep. at 91:7-19; see also D. Frye Decl. 7.).

14. Dr. Frye's testimony regarding "dozens" of members of the LTC had nothing to do
with deleting or destroying documents, source code, or anything else. (D. Frye Decl. 6;
11/18/05 D. Frye Dep. at 100:13-101:18; 1/12/05 D. Frye Dep. at 90:15-91:19.). It also had
nothing to do with Mr. Swanberg's email concerning sandboxes. (D. Frye Decl. 6.) Instead, it
related only to his attempt to estimate the number of LTC developers who may have had any
remaining ability to access AIX or Dynix removed following the lawsuit:

REDACTED

REDACTED

(1/12/05 D. Frye Dep. at 90:15-91:19 (emphasis added); see also Frye Decl. 6.) Any access
that may have existed at that time was removed because AIX and Dynix source code was not
necessary, and to avoid any misperceptions, however misplaced,. that might be created if LTC

9

developers continued to have access to AIX and Dynix while writing code for Linux. (11/18/05
D. Frye Dep. at 10 1: 15-20; 102:12-19.)

15. In his declaration, Dr. Frye notes that in the portions of his testimony cited by
SCO, he was asked questions about three different subjects: (1) Mr. Swanberg's email concerning
the Project, and the ALX sandboxes of developers involved in that Project (which was not part of
the LTC); (2) the decision to remove any remaining access LTC programmers may have had to
AIX or Dynix source code repositories; and (3) efforts by IBM to collect documents from
members of the LTC in connection with SCO's discovery requests. As a result, it was not always
clear to Dr. Frye which of these three subjects SCO was inquiring about - each of which
occurred years before his depositions were taken - and as a result some of his testimony on these
three subjects is at times imprecise. (D. Frye Decl. 4.)

C. Paul McKenney Did Not Destroy Evidence.

16. During LTC programmer Paul McKenney's deposition, he was asked whether,
since March of 2003, he had overwritten any drafts of source code that he wrote for Linux while
referring to Dynix source code. As he explains in his declaration, he misunderstood the question,
and believed that SCO's attorney had asked him whether since March of 2003 he had overwritten
drafts of Linux source code without reference to Dynix source code. 10 (P. McKenney Decl. T 5.)
As a result, Dr. McKenney answered that he had. 11

10

17 The fact that he misunderstood the question is made clear by Dr. McKenney's
answers to SCO's attorney's next questions.

REDACTED12

(Id. at 254:12-16; P. McKenney Decl. 6.) Although these pages of his
deposition immediately follow those cited by SCO, SCO chose not to attach these pages to its
motion.

REDACTED

(P. McKenney Dep. at 252:20-253:3.) Apparently dissatisfied with this answer, SCO's counsel
asked, the same question again:

REDACTED

(Id. at 253:15-17.) Dr. McKenney reasonably assumed that SCO's counsel would not be asking
him the same question twice in a row. and therefore thought SCO's counsel was asking
REDACTED (Id.
at 253;18.) As explained above, the testimony that follows this exchange clearly demonstrates,
and Dr. McKenney's declaration confirms, he misunderstood SCO's question, which had just
been asked and answered.

11

18. Contrary to SCO's claims, and as he testified at his deposition, Dr. McKenney did
not write source code for Linux while referring to or looking at Dynix source code, and he
therefore did not destroy, and could not have destroyed, any drafts of source code he wrote for
Linux while looking at or referring to Dynix source code. (P. McKenney Decl. 7.)

19. Dr. McKenney also testified that sometime around March 2003, he removed any
Dynix source code trees remaining on his personal workstation from his prior work in Dynix, as
well as certain tests that were used strictly to validate Dynix kernel functionality that are not
themselves Dynix source code. (P. McKenney Dep. at 244:20-245:3, 245:17-20, 249:8-15; P.
McKenney Decl. 4.) However, these Dynix source trees were not drafts of code that Dr.
McKenney had written; instead, they were verbatim copies of portions of Dynix source code,
which are available in IBM's RCS database. (P. McKenney Decl. 4.) Moreover, the tests
removed from his laptop were not Dynix source code at all, but unrelated software that is not at
issue in this lawsuit. IBM produced its RCS database to SCO in March 2005, and with it verbatim
copies of any code that may have been on Dr. McKenney's personal workstation. (5/3/05 T.
Shaughnessy Decl. 3, 21.)

20. Finally, Dr. McKenney did not use the Dynix source code trees and test code he
removed from his workstation at all in connection with any of his work in Linux. Instead, these
source code trees and tests were simply reninantsof long-terminated projects from his prior work
in Dynix. (P. McKenney Decl. 7.)

D. IBM Provided SCO the "Evidence" It Claims IBM Destroyed.

21. IBM has produced billions of lines of source code from AIX and Dynix, together
with huge volumes of programmer's notes, design documents, and white papers. IBM produced
to SCO the entirety of the AIX source code on its CMVC system, together with more than
300,000 programmer's notes and more than 2,500 design documents. (5/3/05 Shaughnessy Decl.

12

9-10, 14-16.) As explained above, this includes any and allAIX source code that may have
been on the workstations of the eight developers involved in the Project.

22. IBM also searched a wide variety of electronic repositories outside of CMVC for
AIX design documents, programmer's notes, white papers, source code, and responsive, non-
privileged materials were produced to SCO. (Id. 26.)

23. IBM also produced to SCO the entirety of the Dynix source code on its RCS
system, together with design documents, white papers, and programmer's notes. (Id. 21.) As
explained above, this includes any and all Dynix source code that may have been on Dr.
McKenney's personal workstation.

24. IBM also provided SCO with the names and contact information (where available)
for the more than 2,700 individuals who were identified as having made contributions or changes
to AIX or Dynix. (Id. 35-36.) The efforts described in paragraphs 21 to 24 alone involved
more than 4,700 hours of work from more than 400 IBM employees. (Id. 5.)

25. IBM also undertook a reasonable search for any non-public, proposed Linux
contributions from 20 IBM developers, selected by SCO, and produced these as well. (11/10/06
T. Shaughnessy Decl. 3.)

26. In total, IBM's in-house and outside counsel spent thousands of hours collecting
documents from more than 260 separate custodians and reviewing them for production to SCO.
Ultimately, IBM produced to SCO more than 3.3 million pages of documents. (Id. 4.)

Argument

To prevail on its motion, SCO must first show that relevant evidence was lost or
destroyed. See, e.g., Rowe v. Albertsons, Inc., 116 Fed. Appx. 171, 174 (10th Cir. 2004) (the
"doctrine of spoliation refers to improper intentional destruction of evidence relevant to a case");
Baker v. Randstad N. Am., L.P., 151 Fed. Appx. 314, 318 (5th Cir. 2005) ("spoliation is a
specific doctrine that requires the party invoking it to show, inter alia, that his adversary

13

destroyed or misplaced the evidence in bad faith"). If relevant evidence has been lost or
destroyed, the Court must then consider two factors in determining whether to sanction IBM for
"(1) the degree of culpability of the party who lost or destroyed the evidence, and (2)
the degree of actual prejudice to the other party." Jordan F. Miller Cow. v. Mid-Continent
Aircraft Serv., Inc.
, No. 97-5089, 1998 U.S. App. LEXIS 2739 at * 13 (1 Oth Cir. Feb. 20, 1998).
(Exhibit P hereto.) The Tenth Circuit is clear that "[mlere negligence in losing or destroying
records is not enough" in order to impose sanctions for spoliation. Aramburu v. Bocing,Co., 112
F.3d 1398, 1407 (10th Cir. 1997). Instead, any "adverse inference must be predicated on the bad
faith of the party destroying the records." Id.

Moreover, in undertaking this analysis, "fflhe burden is on the aggrieved party to
establish a reasonable possibility, based on concrete evidence rather than a fertile imagination
that access to the [lost material] would have produced evidence favorable to his cause". Gates
Rubber Co. v, Bando Chem. Indus.
, 167 F.R.D. 90,104 (D. Colo. 1996) (internal citations
omitted).

Here, SCO's motion should be denied because it cannot show that any evidence (let alone
relevant evidence) was lost or destroyed, it cannot show that IBM acted in bad faith, and it
cannot show that it has been prejudiced. In addition, SCO's motion also should be denied
because it has expressly waived, by stipulation, any concerns with IBM's document production,
including any concerns about IBM's alleged destruction of source code.

I. SCO CANNOT SHOW THAT IBM DESTROYED ANYTHING.

SCO has not, and cannot, identify a single piece of evidence that was lost or destroyed by
IBM. In its misplaced attempt to do so, SCO conflates the Swanberg email, which was
applicable only to an eight-member group of non-LTC programmers, with IBM's decision
following the inception of this lawsuit to ensure that programmers in the LTC no longer had the
ability to access stored repositories of AIX and Dynix source code - which decision was made

14

both because LTC programmers had no need to access such source code in order to work in
Linux and to avoid any misperceptions, however ill-founded, that might be created if developers
continued to have some ability to access AIX or Dynix while writing code for Linux. 13 ( 14.)
Mr. Swanberg's email did not pertain to the LTC or its programmers, and was not
intended to - and did not result in - the destruction of any documents at all. IBM simply
never issued a directive or any other communication to the LTC to destroy documents of any
kind. And finally, Dr. McKenney did not write Linux code while referring to Dynix code, and
therefore did not destroy, and could not have destroyed, drafts of such code either.

First, contrary to SCO's claims, Mr. Swanberg's email concerning certain AIX
developers' sandboxes pertained only to eight, not ten, and certainly not "dozens" of developers.
( 7, 11.) Four of the eight developers have submitted sworn testimony that they did not delete
anything in response to the Swanberg email. ( 8.) The four remaining developers cannot recall
whether they may have deleted any leftover AIX code in their sandboxes more than three years
ago, but each has testified that, if they had, all such code would have been a copy of what is
otherwise available in IBM's CMVC database. (Id.) And, as the Court is aware, IBM produced
the CMVC database to SCO in March 2005, a year before the close of fact discovery. (Id.)
Thus, the net outcome of the Swanberg'email - the centerpiece of SCO's motion - is either
that the developers in question deleted nothing whatsoever, or, at worst, that perhaps four
developers may have deleted copies of code that is present in identical form in IBM's CMVC
database, and which has been in SCO's possession for over a year and a half.

Second, SCO contends that "IBM executives" issued a "directive" to "dozens" of its
developers in the LTC to delete any AIX or Dynix code on their personal workstations. 14 (SCO

15

Br. at 3.) In order to make this claim, SCO stitches together a handful of out-of-context excerpts
of deposition testimony from Dr. Frye taken on three different dates over the course of a year. In
the cited portions of his testimony, counsel for SCO asked Dr. Frye questions about three
different subjects: (1) Mr. Swanberg's email concerning the Project and the AIX sandboxes of
the eight developers involved in the Project; (2) the decision to remove any remaining access
LTC programmers may have had to AIX or Dynix source code repositories; and (3) efforts by
EBM to collect documents from members of the LTC in connection with SCO's discovery
requests. In his declaration submitted herewith, Dr. Frye explains that during these depositions,
it was not always clear to him which of these three subjects SCO was inquiring about - each of
which occurred years before the depositions were taken - and as a result some of his testimony
on these three subjects is at times imprecise. ( 15.)

Nevertheless, and despite SCO's claims to the contrary, Dr. Frye repeatedly testified
during his depositions that Mr. Swanberg's email regarding sandboxes pertained pAly to the
small group of developers working on the Project, who were not then part of the LTC. ( 11.)
Dr. Frye was further clear that the number of developers working on the Project was "on the
order of ten" - in fact, there were eight. ( 7, 11.) Finally, and most important, Dr. Frye
testified that IBM did not issue a "directive" (or any other communication) to developers within
the LTC to delete AIX and/or Dynix source code from their machines. ( 11- 13.) As set forth
in detail above, the testimony he provided regarding "dozens" of members of the LTC reflected
only his attempt to estimate the number- of LTC developers who may have had any ability to
access AIX or Dynix source code repositories removed following the inception of SCO's
lawsuit. ( 14.) Dr. Frye's reference to "dozens" of members of the LTC had nothing to do with
the Swanberg email, and it had nothing to do with destroying or deleting documents, source
code, or anything else. (Id.)

16

Dr. Frye also testified about efforts directed by IBM's counsel to collect documents from
members of the LTC. This involved collecting both electronic and hard copy documents and
turning them over to counsel. It did not involve deleting AIX or Dynix source code. ( 11-14.)
In short, there was no "directive" - from "IBM executives" or anyone else - to delete code or
documents within the LTC.

Finally, as "evidence" of this nonexistent directive, SCO incorrectly contends that one
LTC developer, Paul McKenney, "expressly admitted to destroying pre-March 2003 drafts of
source code he had written for Linux while referring to Dynix/ptx source code on his computer at
the LTC ... as well as Dynix/ptx source code and tests from his computer". (SCO Br. at 3.) In
fact, while Dr. McKenney did testify to deleting certain Dynix source code trees from his prior
work in Dynix, as well as certain tests that were used strictly to validate Dynix kernel
functionality (and that are not themselves Dynix source code) from his laptop, these source trees
were verbatim copies of Dynix source code modules that are available in IBM's RCS database.
( 19.) IBM has produced the RCS database to SCO, and it therefore has in its possession any
source code that may have been on Dr. McKenney's computer. 15 (Id.)

During his deposition, Dr. McKenney also was asked

REDACTED

asked Dr.
McKenney the same question again. Dr. McKenney misunderstood the question, and instead
believed that SCO's attorney had asked REDACTED
- a fact that the questions and
answers immediately following the portion of his deposition testimony on which SCO relies
make abundantly clear - and which resulted in Dr. McKenney's answering the question

17

affirmatively. ( 16, 17.) For example, when asked

REDACTED

SCO's counsel further
asked Dr. McKenney whether REDACTED

Far from showing that an IBM engineer "expressly admitted to destroying pre-March
2003 drafts of source code he had written for Linux while referring to DynWptx source code",
Dr. McKenney's deposition testimony makes perfectly clear that he never wrote source code for
Linux while referring to or looking at Dynix source code in the first place, and that he never
destroyed any drafts of source code written for Linux while looking at or referring to Dynix
source code. (Id. 18.)

SCO's inability to support its spoliation claim has not been for lack of effort - much of
SCO's discovery in this case has centered around trying to show that IBM deleted or destroyed
evidence. But as the foregoing demonstrates, and despite SCO's dogged efforts, it can identify
nothing that has been destroyed. Indeed, the very evidence SCO claims has been "lost" has been
in SCO's possession for over a year and a half SCO's motion should be denied for this reason
alone.

II. SCO CANNOT SHOW THAT IBM ACTED IN BAD FAITH.

The relief SCO seeks - an adverse inference instruction - "must be predicated on the
bad faith of the party destroying the records". Aramburu. v. Boeing Co., 112 F.3d 1398, 1407
(10th Cir. 1997). Because no evidence was lost or destroyed, SCO obviously cannot show that
IBM has acted in bad faith, or that it is in any way culpable. Indeed, far from acting in bad faith,

18

IBM took appropriate steps to preserve documents, and it has made a comprehensive and
complete production of source code and documents to SCO.

IBM did not, as SCO claims, direct employees to destroy evidence. On the contrary,
after this lawsuit was filed, IBM instructed its employees to preserve documents, including
electronic documents, that otherwise might have been deleted in the ordinary course of business.
( 13.) Thereafter, IBM's in-house and outside counsel spent thousands of hours collecting
documents from more than 260 separate custodians and reviewing them for production to SCO.
Ultimately, IBM produced to SCO more than 3.3 million pages of documents. ( 26.)
With respect to source code - the "evidence" SCO wrongly claims has been destroyed
- IBM's contributions to Linux are, of course, publicly available. But IBM also undertook a
reasonable search for any non-public, proposed contributions that 20 IBM developers, selected
by SCO, may have made to Linux and produced these as well. ( 25.) IBM also produced
billions of lines of source code from AIX and Dynix, together with huge volumes of
programmer's notes, design documents, and white papers. IBM produced to SCO the entirety of
the AIX source code on its CMVC system, together with more than 300,000 programmer's notes
and more than 2,500 design documents. ( 21.) IBM also searched a wide variety of electronic
repositories outside of CMVC for AIX design documents, programmer's notes, white papers and
source code, and responsive, non-privileged materials were produced to SCO. ( 22.) IBM also
produced to SCO the entirety of the Dynix source code on its RCS system, together with design
documents, white papers, and programmer's notes. (123.) IBM also provided SCO with the
names and contact information (where available) for the more than 2,700 individuals who were
identified as having made contributions or changes to AIX or Dynix. ( 24.) This effort alone
involved more than 4,700 hours of work from more than 400 IBM employees. ( 24.)

Additionally, the Swanberg email itself is not evidence of bad faith. On the contrary, Mr.
Swanberg sent the email not in an effort to destroy evidence, but because any old AIX source

19

code that may have been on these eight developers' workstations was not necessary for the
Project. (14.) It also was sent in an effort to avoid the very misperception that SCO now seeks
to attribute to a developer having access to AIX source code while writing code for Linux. (Id.)
And finally, as Mr. Swanberg testifies in his declaration, he never intended to destroy evidence
that might be relevant to this lawsuit. ( 10.) In the face of this, SCO offers no evidence
whatsoever of bad faith on the part of IBM.

In short, far from acting in bad faith, IBM has spent enormous amounts of time and
money to ensure that its production of source code to SCO in this case is complete and thorough.
SCO's motion should be denied for this additional reason.

III. SCO CANNOT SHOW THAT IT SUFFERED ANY PREJUDICE.

To prevail, SCO must demonstrate the existence of "a reasonable possibility, based on
concrete evidence rather than a fertile imagination that access to the [lost material] would have
produced evidence favorable to [its] cause". Gates Rubber Co. v. Bando Chem. Indus., 167
F.R.D. 90~ 104 (D. Colo. 1996) (internal citations omitted). But, even SCO admits that it can
only "speculate" on this point (SCO Br. at 6); speculation that is driven, no doubt, by a "fertile
imagination". SCO merely asserts that evidence helpful to its case must have been lost in the
face of an alleged directive to "dozens" of developers to destroy code. As SCO puts it, "[flhe
Court will never know how much additional probative evidence existed but has been destroyed
showing that developers were relying on AIX and [Dynix] source code in making their
contributions to Linux development". (Id. at 7.) But even if SCO could show (contrary to fact)
that IBM lost or destroyed evidence, and even if SCO could show (contrary to fact) that IBM
somehow acted in bad faith, it cannot show that it has been in any way prejudiced.
SCO makes no effort to show that the allegedly deleted AIX or Dynix code had anything
to do with Linux, or with IBM's contributions to Linux, because in reality they did not.

20

First, as to the Swanberg email, four of the eight developers to whom the email applied
have testified that they did not destroy code at all, and the other four do not recall doing so, but if
they did, they did not delete anything that is not currently in SCO's possession. ( 8.) Even if
none of the foregoing were true, however, each of the eight developers confirm that he or she
REDACTED ( 9.) As a result, that
information could never have shown what SCO insists it must - reliance on AIX or Dynix in
making Linux contributions.

Second, as he repeatedly testified at deposition, Dr. McKenney simply did not write draft
source code for Linux while referring to or looking at Dynix source code. ( 17, 18.) As a
result, he never des troyed any drafts of source code he wrote for Linux while looking at or
referring to Dynix source code, contrary to SCO's claim. (Id.) Dr. McKenney also did not use
the Dynix source code trees and test code he removed from his workstation at all in connection
with any of his work in Linux these were simply all that remained of long-terminated projects
from his prior work in Dynix. ( 20.) But even if the information did somehow relate to Dr.
McKenney's Linux contributions, it has been in SCO's possession for over a year and a half.
In short, even assuming - incorrectly - that the destruction of unique code took place,
none of the nine developers (eight Project developers plus Dr. McKenney) to whom SCO's -
motion applies destroyed anything that related to any of their work in Linux. Because there was
no directive within the LTC to destroy code (or anything else), as SCO contends, SCO's alleged
prejudice begins (and ends) with these nine developers alone. 16 As SCO's invitation to the Court
to "speculate" about potential evidence it may have lost makes clear, SCO cannot show any

21

prejudice at all, and it certainly cannot show that IBM destroyed material that would have
"produced evidence favorable to [its] cause." Gates Rubber Co., 167 F.R.D. at 104. For this
additional reason, SCO's motion should be denied.

IV. SCO HAS WAIVED ANY ARGUMENT CONCERNING T14E SUFFICIENCY OF
IBM'S DOCUMENT PRODUCTION.

On March 17, 2006, the last day for the parties to conduct fact discovery in this case,
SCO expressly stipulated that "[flhe parties have reviewed one another's document productions,
met and conferred, and agree that ... there are no discovery disputes between them". 17
(Stipulation re Discovery, Docket # 651) SCO executed this stipulation months - and, in at
least one case, more than a year - after obtaining the testimony on which it relies in its motion,
and almost two and a half years after receiving the Swanberg email from EBM in discovery. (See
SCO Br. at 3.)

Moreover, in the days and weeks preceding the execution of this stipulation, the parties
met and conferred repeatedly in an attempt to identify and, where possible, resolve, any
outstanding issues between them relating to discovery, including document retention and
production. (11/10106 Shaughnessy Decl. 5.) At no time during this lengthy meet and confer
process did counsel for SCO raise any concern about IBM's document production as now
articulated in SCO's motion, much less attempt to preserve any ability to do so in the parties'
stipulation. (Id.) Waiver is "the intentional relinquishment of a known right", Barnes v. Wood,
750 P.2d 1226, 1230 (Utah Ct. App. 1988), and it applies equally to agreements and stipulations
made by a party through counsel in the course of pending litigation. See FMC Corp. v.-Aero
Indus., Inc.
, 998 F.2d 842, 845 (1 Oth Cir. 1993) (defendant waived right to jury trial where
counsel signed a pretrial order stating that the case was to be tried to the judge and participated in

22

the bench trial); McCarthy v. Wynne, 126 F.2d 620, 623 (1 Oth Cir. 1942) (parties' stipulation to
the withdrawal of certain claims and defenses was "binding upon the parties throughout the
proceeding" and finding no reason that the agreement "should not have been enforced"). SCO,
despite having long since taken the depositions on which it relies, despite having received the
email on which its motion is based years earlier, and despite having made spoliation an issue
throughout discovery, made no attempt to raise any alleged concern regarding IBM's retention of
documents before the close of fact discovery on March 17, 2006. To the contrary, SCO elected
to execute a stipulation on that date which expressly provides that "[t]he parties have reviewed
one another's document productions
. . . and agree that ... there are no discovery disputes
between them". (28 (emphasis added).)

If SCO genuinely holds the belief that IBM's document production is inadequate due to
the alleged destruction of documents, it should have expressly contended as much as of March
17, 2006, the date the parties signed the stipulation. SCO instead chose to wait to file this
motion until after both fact and expert discovery concluded, thereby limiting the options
available both to the Court and IBM to address it. By failing to raise this issue at the time of the
March 17, 2006, stipulation, SCO waived any and all of its current arguments, and SCO's
motion should be denied for this additional reason.

Conclusion

For the foregoing reasons, IBM respectfally submits that the Court should deny SCO's
motion regarding spoliation.

23

DATED this 10th day of November, 2006.

SNELL & WILMER L.L.P.

[signed Todd M. Shaughnessy]
Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson

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

Of Counsel:

INTERNATIONAL BUSINESS MACHINES CORPORATION
Alec S. Berman
[Address]
[Phone]

Attorneys for DefendantICounterclaim-Plaintiff
International Business Machines Corporation

24

CERTIFICATE OF SERVICE

I hereby certify that on the 11th day of November, 2006, a true and correct copy of the
foregoing was served by electronic mail, pursuant to agreement of the parties, on the following:

Brent O. Hatch
HATCH, JAMES & DODGE, P.C.
[Address]
[Email]

Edward Normand
BOIES, SCHILLER & FLEXNER LLP
[Address]
[Email]

25

CERTIFICATE OF SERVICE

I hereby certify that on the 2lst day of November, 2006, a true and correct copy of
the foregoing was electronically filed with the Clerk of the Court and delivered by
CM/ECF system to the following:

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

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

/s/ Todd M. Shaughnessy

26

Index to Exhibits

Exhibit A: Declaration of Randal Swanberg

Exhibit B: Deposition of Dan Frye dated 11/18/05

Exhibit C: Deposition of Dan Frye dated 1/12/05

Exhibit D: Declaration of Linda Xie

Exhibit E: Declaration of Nathan Fontenot

Exhibit F: Declaration of Matthew Fleming

Exhibit G: Declaration of Michael Strosaker

Exhibit H: Declaration of Nathan Lynch

Exhibit I: Declaration of David Altobelli

Exhibit J: Declaration of Jacob Moilanen

Exhibit K: Declaration of John Rose

Exhibit L: Declaration of Todd M. Shaughnessy

Exhibit M: Declaration of Daniel Frye

Exhibit N: Declaration of Paul McKenney

Exhibit O: Deposition of Paul McKenney dated 12/2/05

Exhibit P: Unpublished opinion

27

1 References to SCO's Memorandum in Support of SCO's Motion Regarding Spoliation are
cited as "SCO Br. ___".

2 A copy of the Swanberg Declaration is appended hereto as Exhibit A.

3 The individuals to whom the email was sent - Amir Simon, Tom Mathews, Kaena
Freitas, Randy Greenberg, Kumar Nallapati, Robert Ruyle, Rakesh Sharma, and Michael Lyons
- were managers or team leads and not developers. Of those to whom it was sent, Mr. Swanberg
intended only Mr. Simon, the Project's business manager, Mr. Greenberg, manager of the eight
developers at issue, and Mr. Lyons, the Project's Team Lead, to communicate information
regarding access to copies of old AIX source and "sandboxes." Neither Mr. Swanberg nor any
of the individuals who received the email worked on or developed any code for the Project, (R.
Swanberg Decl. 6), and SCO does not (and cannot) claim that any of these individuals deleted
any source code in response to, the email.

4 Copies of the cited portions of the 11/18/05 and 1/12/05 depositions of Daniel Frye are
appended hereto as Exhibits B and C respectively.

5 CMVC (or Configuration Management Version Control) is,the source code revision
system utilized by IBM's AIX development organization. It provides shared access to source
code files used in the development of AIX, tracks changes to the source code files, and ensures
that only those with proper authorization are allowed to access or update the material in the
database. (513105 T. Shaughnessy Decl. 7-8 (Docket # 441).)

6 The declarations of Xie, Fontenot, Fleming, Strosaker, Lynch, Altobelli, Moilanen, and
Rose are appended hereto as Exhibits D through K.

7 The 11/10/06 Declaration of T. Shaughnessy is appended hereto as Exhibit L.

8 In his deposition, Dr. Frye testified that the number of developers working on the Project
was "on the order of ten"; in fact, there were eight. (D. Frye Decl. 5.)

9 A copy of the Frye Declaration is appended hereto as Exhibit M.

10 A copy of the McKenney Declaration is appended hereto as Exhibit N.

11 The fact that Dr. McKenney misunderstood the question is understandable given the
manner in which SCO's counsel inquired on this topic. immediately before the exchange upon
which SCO relies, Dr. McKenney was asked almost the identical question, and correctly
answered that he did not write Linux code while referring to Dynix:

12 A copy of the cited portions of Dr. McKenney's deposition are appended hereto as
Exhibit O.

13 References to Factual Background are cited as

14 As Dr. Frye explained in his deposition, neither Mr. Swanberg nor any of individual to
whom he sent the email in question are IBM executives, and SCO offers no evidence whatsoever
to support its claim that "IBM executives" directed developers to delete source code. ( 4.)

15 Moreover, the tests removed from his laptop we're not Dynix source code at all, but
unrelated software that is not at issue in this lawsuit. ( 19.)

16 In its motion, SCO asserts that "[flhe individuals receiving the instruction to delete the
AIX and PTX code from their workspaces are precisely the same engineers involved in the
Linux technology contributions at issue". (SCO Br. at 5, 6.) However, of the nine developers to
whom the motion conceivably pertains, SCO identified only one, Dr. McKermey, in its
disclosures. None of the information Dr. McKenney removed from his workstation, however,
related to any of his work in Linux. ( 19-20.)

17 Although the stipulation carves out a limited number of open discovery issues between
the parties, none of the exceptions relate to SCO's motion.

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

SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (665 1)
Amy F. Sorenson (8947)
[Address]
[Phone]
[Fax]

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

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,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant / Counterclaim-Plaintiff.

DECLARATION OF
TODD M. SHAUGHNESSY
IN SUPPORT OF IBM'S
OPPOSITION TO SCOIS MOTION
REGARDING SPOLIATION

Civil No. 2:03CV-0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

1

I, Todd M. Shaughnessy, declare as follows:

1. I represent Defendant/Counterelaim-Plaintiff International Business Machines
Corporation ("IBM") in the lawsuit brought by The SCO Group, Inc. C'SCO") against IBM,
entitled The SCO Group, Inc. v. International Business Machines Corporation, Civil No.
2:03CV-0294 DAK (D. Utah 2003). This declaration is submitted in support of IBM's
Opposition to SCO's Motion for Relief for IBM's Spoliation of Evidence.

2. Counsel for IBM has carefully reviewed SCO's Final Disclosures and has
determined that SCO has not identified in its disclosures any of the eight developers involved in
the Linux for PowerPC Project as an individual who made an allegedly improper contribution to
Linux.

3. IBM offered, and Magistrate Judge Wells thereafter ordered, that IBM "undertake
a reasonable search for and produce non-privileged and non-public Linux programmer's notes,
design documents, white papers, and interim or draft versions of Linux contributions from the
files of 20 of the IBM Linux developers who SCO identifies as potential deponents and whose
files it would like IBM to search." (10/12/05 Order at 3-4.) After receiving the names of the
developers that SCO selected, IBM conducted a reasonable search for and produced to SCO non-
privileged, responsive documents.

4, IBM's in-house and outside counsel spent thousands of hours collecting
documents from more than 260 separate custodians and reviewing them for production to SCO.
Ultimately, IBM produced to SCO more than 3.3 million pages of documents.

2

5. On March 17, 2006, counsel for the parties signed a Stipulation Re Discovery. In
the days and weeks that preceded March 17, 2006, 1 met and conferred repeatedly with counsel
for SCO in an attempt to identify and, where possible, resolve, any outstanding issues between
the parties relating to discovery, including document retention and production. During that time,
SCO never raised as an issue IBM's alleged destruction of evidence, as now articulated by SCO
in its Motion for Relief for IBM's Spoliation of Evidence.

6. I declare under penalty of perjury that the foregoing is true and correct.

Executed: November 10, 2006.

Salt Lake City, Utah

_____[Signature]____
Todd M. Shaughnessy

3


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