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IBM's Greatest Hits - Ex. 15 - IBM's 5th Request for Documents
Wednesday, January 03 2007 @ 07:53 AM EST

Here's IBM's IBM's Fifth Request for the Production of Documents [PDF] as text, thanks to fredex. It's another exhibit from the list of 597 exhibits IBM filed to support its motions for summary judgment. The date on this document is May 14, 2004. It's, so far as I can make out, related to IBM's patent counterclaims that IBM eventually dropped, when it became clear SCO couldn't pay any meaningful damages and it was just delaying discovery, so this is in the way of completing our records of the history of the case. Law students will also find it useful, to study discovery methods in patent litigation. It's always helpful to watch a master at work.

With that in mind, one of the items is ReliantHA which has been mentioned before, in SCO's Objections to Notice of Deposition, IBM's First Set of Interrogatories and First Set of Document Requests, in SCO's Responses to IBM's 1st Set of Interrogatories, and in SCO's Responses to IBM's 3rd Set of Interrogatories. ReliantHA is a clustering software package, described here as the kind of thing that the enterprise can make use of:
ReliantHA for Open UNIX® 8 and UnixWare® 7 Release 7.1.1 increases the overall availability of applications and critical data by connecting multiple servers together as nodes within a single high-availability fail-over cluster....

ReliantHA is ideal for increasing the availability of business critical applications such as transaction processing, database, email, web, file and print services. Additionally Release 1.1.2 can take full advantage of the new features in Open UNIX 8, such as the ability to run Linux applications natively under LKP, to utilize large software RAID volumes spanning multiple physical disks created using ODM, and to support fault tolerant high performance Multi-Path I/O capable devices for data storage.

And as for LZW, you'll find SCO's arguments about why it wasn't in violation of IBM's patents on LWZ in SCO's Responses to IBM's 3rd Set of Interrogatories.

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

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 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,

-against-

INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Defendant/Counterclaim-Plaintiff

______________________

DEFENDANT/COUNTERCLAIM-
PLAINTIFF IBM'S FIFTH
REQUEST FOR THE 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 Fifth Request for the Production of Documents to plaintiff/counterclaim-defendant The SCO Group, Inc. ("plaintiff").

1

Plaintiff is requested to produce the documents and things in its possession, custody or control pursuant to the document requests.

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, [address] within 30 days of service of these document requests.

Document Requests

REQUEST NO. 78:

Documents sufficient to identify each and every SCO Product (by name, version and release) that provides for high availability in a clustered arrangement of computers having at least one distributed program running within the cluster through the use of configurable monitors.

REQUEST NO. 79:

Documents sufficient to identify the dates of first offering (and, where applicable, last availability) of each and every SCO Product (by name, version and release) that provides for high availability in a clustered arrangement of computers having at least one distributed program running within the cluster through the use of configurable monitors or supports or allows a user to specify an automated procedure for recovery from a failure in a clustered arrangement of computers.

REQUEST NO. 80:

Documents sufficient to identify each and every SCO Product (by name, version and release) providing a program, process, procedure, module, tool, feature or

2

function for automated recovery from a failure of a program running within a clustered arrangement of computers involving one or more configurable monitors.

REQUEST NO. 81:

Documents sufficient to identify each and every SCO Product (by name, version and release) that supports or allows a user to specify an automated procedure for recovery from a failure in a clustered arrangement of computers.

REQUEST NO. 82:

Documents sufficient to identify each and every SCO Product (by name, version and release) that supports or provides automated user-defined detection and/or recovery from failure events occurring on one or more computers in a computer network.

REQUEST NO. 83:

Summary documents individually quantifying, on a yearly, quarterly or monthly basis, the distribution and financial figures in terms of:

i)number of units created or distributed,

ii)highest and lowest per unit selling price, license or fee received,

iii) average per-unit selling price, license or fee,

iv) total revenues received,

v) gross profit, and

vi) incremental, marginal and net pretax or operating profit, for the SCO Products called "ReliantHA" and every other SCO Product that supports or provides automated user-defined detection and/or recovery from failure events occurring on one or more computers in a computer network.

3

REQUEST NO. 84:

All documents identifying or referring to all sources and developers of the ReliantHA SCO Product.

REQUEST NO. 85:

Documents sufficient to identify all authorized resellers or redistributors of the ReliantHA SCO Product.

REQUEST NO. 86:

All documents describing the function and operation of the ReliantHA SCO Product including, without limitation, specifications, manuals, tutorials, marketing materials, training materials, and developer assistance materials.

REQUEST NO. 87:

Documents sufficient to identify the origins of the ReliantHA SCO Product including, without limitation, all persons involved in the development of such SCO Product and, if it was acquired from a third party, the entity from whom it was obtained, the means by which it was obtained, and the financial terms relating to such acquisition.

REQUEST NO. 88

All documents relating, in whole or part, to the facts and circumstances surrounding the need for, or inability of, if any, SCO to itself develop a program that supports or provides automated user-defined detection and/or recovery from failure events occurring on one or more computers in a computer network.

4

REQUEST NO. 89:

Documents sufficient to identify each and every SCO Product (by name, version and release) that incorporates, implements or uses what is commonly referred to as "modified Lempel-Ziv", "adaptive Lempel-Ziv", "Lempel-Ziv-Welch" or "LZW" coding.

REQUEST NO. 90:

Documents sufficient to identify each and every SCO Product (by name, version and release) that implements any of the UNIX-family commands or utilities -- "compress", "uncompress", "decompress", "gifclip" or "gzip".

REQUEST NO. 91:

All documents describing the function and operation of any program, process, procedure, module, tool, feature or function in a SCO Product that:

i)implements or uses what is commonly referred to as "modified Lempel-Ziv", "adaptive Lempel-Ziv", "Lempel-Ziv-Welch" or "LZW" coding;

ii) implements or uses any of the UNIX-family commands or utilities -- "compress", "uncompress", "decompress", "gifclip" or "gzip"; or

iii) supports, opens, saves or converts the file format for computer images that is commonly referred to within the computer industry as "Graphics Interchange Format" or "GIF" format or a file format commonly referred to within the computer industry as "compressed Tagged Image File Format" or "compressed TIFF" or including any computer files bearing a ".gif", ".tif" or ".tiff" file extension.

5

REQUEST NO. 92:

All documents identifying or referring to all sources and developers of any program, process, procedure, module, tool, feature or function used in a SCO Product to:

i) implement or use what is commonly referred to as "modified Lempel-Ziv", "adaptive Lempel-Ziv", "Lempel-Ziv-Welch" or "LZW" coding;

ii) implement or use any of the UNIX-family commands or utilities -- "compress", "uncompress", "decompress", "gifclip" or "gzip"; or

iii) support, open, save or convert the file format for computer images that is commonly referred to within the computer industry as "Graphics Interchange Format" or "GIF" format or a file format commonly referred to within the computer industry as "compressed Tagged Image File Fonnat" or "compressed TIFF " or including any computer files bearing a ".gif", ".tif" or ".tiff" file extension.

REQUEST NO. 93:

Documents sufficient to identify each and every SCO Product (by name, version and release) that is, or has been, distributed in a compressed format by or on behalf of SCO, the specific compression technique used to compress each such SCO Product, and the specific compression technique used to uncompress or decompress each such SCO Product.

REQUEST NO. 94:

Documents sufficient to identity the dates of first offering (and, where applicable, last availability) of each and every SCO Product (by name, version and release):

6

i) supporting the file format for computer images that is commonly referred to within the computer industry as "Graphics Interchange Format" or "GIF" format or a file format commonly referred to within the computer industry as "compressed Tagged Image File Format" or "compressed TIFF";

ii) including any computer files bearing a ".gif", "tif" or ".tiff" file extension;

that incorporates, implements or uses what is commonly referred to as "modified Lempel-Ziv", "adaptive Lempel-Ziv", "Lempel-Ziv-Welch" or "LZW" coding;

iv) that implements any of the UNIX-family commands or utilities -- "compress", "uncompress", "decompress", "gifclip or "gzip"; or

v) that is, or has been, distributed in a compressed form by or on behalf of SCO.

REQUEST NO. 95:

Documents sufficient to identify the method used to distribute each and every SCO Product (by name, version and release) that is, or has been, distributed in a compressed form by or on behalf of SCO.

REQUEST NO. 96:

For each and every SCO Product (by name, version and release) that is, or has been, distributed in a compressed form by or on behalf of SCO, all documents or things that identify, discuss, refer to, relate to or describe what is to be done to compress, uncompress or decompress each such SCO Product.

7

REQUEST NO. 97:

Documents sufficient to identify each and every SCO Product (by name, version and release) that, as distributed by or on behalf of SCO, includes or has included one or more compressed files or compressed images, and all specific compression techniques used to compress and/or uncompress or dpcompress such file(s) or image(s).

REQUEST NO. 98:

Documents sufficient to identify each and every SCO Product (by name, version and release) supporting the file format for computer images that is commonly referred to within the computer industry as "Graphics Interchange Format" or "GIF" format or a file format commonly referred to within the computer industry as "compressed Tagged Image File Format" or "compressed TIFF" or including any computer files bearing a ".gif", ".tif" or ".tiff" file extension.

REQUEST NO. 99:

Documents sufficient to identify each and every SCO Product (by name, version and release) capable of

i) opening and displaying a graphic in,

ii) converting a graphic to, or

iii) converting a graphic from,

either a file format commonly referred to within the computer industry as "Graphics Interchange Format" or "GIF" format or a file format commonly referred to within the computer industry as "compressed Tagged Image File Format" or "compressed TIFF" or including any computer files bearing a ".gif", ".tif" or ".tiff" file extension.

8

REQUEST NO. 100:

Summary documents quantifying (by name, version and release and on a per product yearly, quarterly or monthly basis) distribution and financial figures in terms of:

i) number of units created or distributed,

ii) highest and lowest per unit selling price, license rate or fee received,

iii) average per-unit selling price, license or fee,

iv) total revenues received,

v) gross profit, and

vi) incremental, marginal and net pretax or operating profit, for the SCO Products called "Unixware and "Openserver" and each and every other SCO Product that implements, incorporates or uses what is commonly referred to as "modified Lcmpel-Ziv", "adaptive Lempel-Ziv", "Lempel-Ziv-Welch" or "LZW" coding, or implements or executes any of the UNIX-family commands or utilities "compress", "uncompress", "decompress", "gzip" or "gifclip".

REQUEST NO. 101:

Summary documents quantifying (by name, version and release on a per product yearly, quarterly or monthly basis) distribution and financial figures in terms of:

i) number of units created or distributed,

ii) highest and lowest per unit selling price, license or fee received,

iii) average per-unit selling price, license or fee,

iv) total revenues received,

9

v) gross profit, and

vi) incremental, marginal and net pretax or operating profit, for each and every SCO Product created, imported or distributed by or on behalf of SCO either in a compressed format or including one or more compressed files or compressed images of a file of a format commonly referred to within the computer industry as "Graphics Interchange Format" or "GIF" format or commonly referred to within the computer industry as "compressed Tagged Image File Format" or "compressed TIFF" or including any computer files bearing a ".gif", ".tif" or ".tiff" file extension.

REQUEST NO. 102:

Documents sufficient to identify each and every SCO Product (by name, version and release) that is distributed in a non-executable form and that also includes a program, process, procedure, module, tool, feature or function that requires a user to, as part of the installation process, either acknowledge receipt of the software or consent to terms authorizing use of the software, before it will change that SCO Product from the non-executable form to an executable form.

REQUEST NO. 103:

Documents sufficient to identify (by name, version and release) each and every program, process, procedure, module, tool, feature or function that is part of or used with any SCO Product that will change software from a non-executable form to an executable form only after, as part of the installation process, a user either acknowledges receipt of the software or consents to terms authorizing use of the software.

10

REQUEST NO. 104:

Documents sufficient to identify each and every SCO Product (by name, version and release) that requires a receiver of the SCO Product, as part of the process of installing the SCO Product, to either acknowledge receipt of the SCO Product or consent to terms authorizing use of the SCO Product in order for the SCO Product to run.

REQUEST NO. 105:

All documents that refer to, relate to, or describe the development, function and/or operation of every installation program, process, procedure, module, tool, feature or function used in, or in connection with, any SCO Product that requires either acknowledgment of receipt of the SCO Product or consent to terms authorizing the use of the SCO Product, as part of the process of installing the SCO Product for use.

REQUEST NO. 106:

Documents sufficient to identify each and every SCO Product (by name, version and release) that can only be installed on a computer in a runnable form after, as part of the installation process, an installer either acknowledges receipt of the software or consents to terms authorizing use of the software.

REQUEST NO. 107:

Summary documents individually quantifying (by name, version and release on a per product yearly, quarterly or monthly basis) the distribution and financial figures in terms of:

i) number of units created or distributed,

ii) highest and lowest per unit selling price, license or fee received,

iii) average per-unit selling price, license or fee,

11

iv) total revenues received,

v) gross profit, and

vi) incremental, marginal and net pretax or operating profit for the SCO Products called "Webface" and "Unixware" and every other SCO Product that incorporates or uses an installation program that requires either acknowledgment of receipt of the SCO Product, or consent to terms authorizing the use of the SCO Product, as part of the installation process.

REQUEST NO. 108:

Documents sufficient to identify each and every SCO Product (by name, version and release), other than Webface and Unixware, that uses the same installation program, process, procedure, module, tool, feature or function as provided by SCO for the installation of the Webface or Unixware SCO Products.

REQUEST NO. 109:

All documents implementing, describing, referring or relating to the installation program for the SCO Products called "Webface" and "Unixware."

REQUEST NO. 110:

All documents identifying or referring to all sources and developers of the program provided by SCO for the installation of the Webface and Unixware SCO Products.

REQUEST NO. 111: Source code for each of:

12

i) the specific program, process, procedure, module, tool, feature or function provided by SCO for installation of the Webface and Unixware SCO Products on a user's computer; and

ii) every installation program incorporated into or for use in installing any SCO Products other than Webface and Unixware that, as part of the installation process, requires either a) acknowledgement of receipt of the SCO Product, or b) consent to terms authorizing use of the SCO Product.

REQUEST NO. 112:

Documents sufficient to identify the origins of the program provided by SCO for the installation of the Webface and Unixware SCO Products including, without limitation, all persons involved in the development of such program(s) and, if any such program was acquired, purchased or licensed from a third party, the entity from whom such installation program was obtained, the means by which such installation program was obtained, and the financial terms relating to such transaction.

REQUEST NO. 113:

All documents relating, in whole or part, to the facts and circumstances surrounding the need for, or inability, if any, of SCO to itself develop, an installation program, process or procedure such as provided by SCO for the installation of the Webface and Unixware SCO Products.

REQUEST NO. 114:

All documents that, in whole or part, factually relate to or form a basis for SCO's allegations or contentions that one or more of United States Patent Nos. 4,814,746, 4,953,209 and 5,805,785 are unenforceable.

13

REQUEST NO. 115:

All documents relating to facts and circumstances that support or refute any SCO allegations or contentions that any of United States Patent Nos. 4,814,746, 4,953,209 and 5,805,735 are unenforceable.

REQUEST NO. 116:

All documents that, in whole or part, relate to, form the basis of, tend to support or tend to refute SCO's allegations or contentions that one or more of United States Patent Nos. 4,814,746, 4,953,209 and 5,805,735 are not infringed or are invalid for failure to satisfy one or more sections of 35 U.S.C. §§ 12, 102 or 103.

REQUEST NO. 117:

All documents that, in whole or part, relate to, form the basis of, tend to support or tend to refute each and every defense asserted by SCO with respect to any of United States Patent Nos. 4,814,746, 4,953,209 and 5,805,785.

REQUEST NO. 118:

All documents relating to the existence of any opinion prepared by, for, or on behalf of SCO or a predecessor in interest thereto relating to any of United States Patent Nos. 4,814,746, 4,953,209 and 5,805,785.

REQUEST No. 119:

All opinions prepared by, for, or on behalf of SCO or a predecessor in interest thereto referring or relating to any of United States Patent Nos. 4,814,746, 4,953,209 and 5,805,785.

14

REQUEST NO. 120:

All documents relating to knowledge of each of United States Patent Nos. 4,814,746, 4,953,209 and 5,805,785 by SCO, or a predecessor in interest thereto, at any time prior to the March 6, 2003 date that SCO initiated the instant action against IBM.

REQUEST NO. 121:

All documents referring or relating to SCO's first knowledge of United States Patent Nos. 4,814,746, 4,953,209 and 5,805,785 and all actions taken by SCO as a result of its knowledge that would tend to support or refute any allegation by SCO that it is not a willful infringer of each such patent.

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. IBM additionally supplements the definitions as follows:

As used herein, the terms "SCO Product" or "SCO Products" include any and all products that are or were created by, for, or on behalf of SCO, or licensed, distributed (in any fashion), sold or offered by or on behalf of SCO or any predecessor in interest thereof in any form (whether or not for a fee), from six years prior to the March 6, 2003 date that SCO initiated the instant action against IBM through to the present date.

15

DATED this 14th day of May, 2004.

SNELL & WILMER LLP
_____[signature]___
Alan L. Sullivan
Todd M. Shaughnessy

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

Counsel for Defendant/Counterclaim-Plaitiff
International Business Machines Corporation

Of counsel:

MORGAN & FINNEGAN LLP
Christopher A. Hughes
Richard Straussman
[address, phone]

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

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

16

SNELL & WILMER, L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Nathan E. Wheatley (9454)
[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,

vs.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim-
Plaintiff

_________________________

CERTIFICATE OF SERVICE

Civil No. 2:03CV0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke Wells

I hereby certify that on the 14th day of May, 2004, a true and correct copy of DEFENDANT/COUNTERCLAIM-PLAINTIFF IBM'S FIFTH REQUEST FOR THE PRODUCTION OF DOCUMENTS was hand delivered to the following:

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

and was sent by U.S. Mail, postage prepaid, to the following:
Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]

Kevin P. McBride
[address]

_______[signature]_______


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