I've just gotten back from the 01/18/07 motion hearings in the SCO v. IBM case.

IBM's Michael Burke and SCO's Sashi Boruchow argued SCO's Motion for Protective Order Regarding Dr. Jeffrey Leitzinger's Personal Financial Information.

IBM's Todd Shaughnessy and SCO's Mark James argued SCO's Motion for Relief for IBM's Spoliation of Evidence.

Judge Well's ruled from the bench on both motions, ruling in favor of SCO on Dr. Leitzinger and in favor of IBM regarding spoliation.

In her ruling regarding Dr. Leitzinger, she found that the Andrew Morton situation is clearly distinguishable from Dr. Leitzinger's, that IBM has the option of submitting a motion in limine and also exploring the issues of percentages of Dr. Lietzinger's income on cross-examination at trial. Her decision is to grant SCO's proposed order exactly as written.

In her ruling on SCO's spoliation motion, she said that based on the evidence before her, as it is placed in context, SCO's motion is denied. In fact, she finds that the evidence (that SCO contended was destroyed) is available in CMVC. She finds that there was no bad faith on IBM's part and that no evidence was destoyed as it was, and still is, available.

After Judge Well's ruled on this, SCO's Mark James asked that, since her ruling is based on representations made by IBM's Todd Shaughnessy (that the information of what IBM employee had checked out what AIX code from CMVC and when), he requested IBM tell SCO how to obtain the information. Judge Well's asked Mr. Shaughnessy what IBM would be willing to do to answer their question. Todd respecfully said that the time for that has long passed, that discovery and expert discovery is over. He said that during discovery, while SCO had CMVC, they never said that they were unable to find that information. Judge Wells asked Mr. Shaughnessy to do what he can to provide that answer. It was further clarified, at Mr. Shaughnessy's request, that this is not reopening discovery nor will the answer, regardless of what is found, necessarily make any difference. Judge Wells requested Todd Shaughnessy to prepare the order on this motion, and Sashi Boruchow to prepare the order on the protective order motion.

So much for the Forbes headlines about IBM destroying evidence. They didn't. Now, how does IBM get its good name back? Will Forbes print an equivalent headlined story: "We were so wrong, once again. IBM *didn't* destroy any evidence"?

Update 2: Some in the media are doing the right thing and reporting this story: The Inquirer, "SCO Gets Another Kick in the Teeth":

ANTI-LINUX bad-boy SCO is watching its case against IBM collapse around its ears as an attempt to get Biggish Blue to pay for wrecking its case by spoiling evidence has been chucked out....Judge Wells told SCO that rather than the evidence being spoil[iat]ed, and based on what she was looking at, it was still freely available if SCO looked hard enough.

Update 3: Let's give the Devil his due. A reader sends me the news that Forbes has indeed printed a story stating that SCO lost its spoliation motion. No mea culpa, though. It seems Brent Hatch is to blame:

Brent Hatch, an attorney who represents SCO, told Forbes last summer that one reason SCO had been unable to produce that evidence was that IBM had instructed its programmers to destroy code after SCO filed its lawsuit.

On Thursday, however, Judge Wells denied SCO's motion, claiming that any code that once existed on IBM programmers' machines should still be available in a code management database that IBM maintained.

: )

One small correction. The article says that Judge Wells threw out most of SCO's claims. She didn't. She threw out items on SCO's list of allegedly misused materials, Judge Kimball upheld her decision, and the next day she confined SCO to claims already on the table by the deadline. SCO's claims appear in its Second Amended Complaint, and they are all still there. How SCO will prove them now is at issue, obviously, but no claims have been thrown out yet. The summary judgment motions filed by IBM do hope to achieve that noble goal, but they won't be ruled on until March at the very earliest.

On a deeper level, one could say that claims were thrown out as a corollary, in that SCO hoped to and tried to introduce *new* claims after the deadline, or at least that is what IBM said and the court agreed. But all the original claims are still there. The sad thing, from SCO's point of view, is that everything they tried to introduce could have been in the case, had they met the deadline. SCO continues to ask the court to undo Judge Wells' decision. The second one too. Just thought it would be helpful to explain, so folks can get it right, if they want to.

If you've forgotten what a motion in limine is, I explained it just the other day: it's a motion at the start of trial asking the judge to exclude certain evidence from trial. So what Judge Wells told IBM is that they will have further opportunities to elicit information (or exclude it) from Dr. Leitzinger at trial. If this junk ever makes it to trial.

Update:

And here's the longer version, from his notes:

*********

Judge Wells, after announcing the motions before her, made it very clear that she had reviewed ALL submissions on these motions (repeating it twice, and stressing "all") and said she was fully conversant on them. She said she'd hear SCO's Motion for Protective Order Regarding Dr. Jeffrey Leitzinger's Personal Financial Information first.

Sashi Boruchow argued for SCO that Dr. Leitzinger, during his deposition, disclosed his hourly billing rate and hours billed on this case fully. meeting the criteria established by Rule (29c?); that the requirement is only that the amount of compensation for the plaintiff is discoverable; that there is a need to protect his privacy. She said to be relevant, the fee must be disproportionate to services which IBM has not shown, or that the expert's opinion has changed over time, possibly showing the expert is influenced by the fee, which IBM also has not shown. She said the questions asked of Andrew Morton (IBM's expert) are not analogous of questions asked of Dr. Leitzinger because a portion of Andrew Morton's income was derived from IBM through OSDL.

Arguing for IBM on this was Michael (Mike) Burke. He said that case law clearly shows experts must show litigation-related income, that it is discoverable. Judge Wells interjected that the Federal rules say "may" be discoverable... Mike agreed, but said IBM contends that Dr. Leitzinger is a professional expert witness.

Judge Wells asked numerous questions about why IBM needs this information. "Why do you need the exact amount? Couldn't you ask that (at trial) in cross-examiniation?" Burke replied that there is always a danger of asking a question in cross that you don't know the answer to. Judge Wells rolling her eyes, agreed that's always a danger. He argued further, but weakly, including that IBM is only seeking the amount that Dr. Leitzinger earned from litigation-related actions.

Boruchow replied that IBM said they were seeking only litigation-related income but in fact they are asking for all of 2005, including management income, income from other customers, and EcomOne share income (which income could reflect income that other associates might have earned independantly).

Judge Wells ruled that the Andrew Morton situation is clearly distinguishable from Dr. Leitzinger's, that IBM has the option of submitting a motion in limine and also exploring the issues of percentages of Dr. Lietzinger's income on cross-examination at trial. Her decision is to grant SCO's proposed order exactly as written.

Next SCO's Mark James argued on SCO's Motion for Relief for IBM's Spoliation of Evidence. He provided a document to Judge Wells to which he referred and indicated that SCO has direct evidence of an email directing destruction of evidence, referring to a case he said that said bad faith is not required.

Judge Wells said, "We're presuming something here, that there was destruction," to which James said Yes, and he'll talk about that. He said that IBM contends that SCO cannot show anything was destroyed, that the email only applied to eight developers, that four said they didn't destroy anything. However these pure conclusory assertions were not based on any evidence. The email was from IBM's Open Source Steering Committee.

Judge Wells indicated as she was reviewing documents she noted in the transcript of a February 2004 hearing where SCO's Mark Heise handed her a document that defines CMVC, that it tracks source code versions over time and all levels of files and are available for those with proper access. She implied that all code that the developers had must be in that central CMVC repository. She asked, "Given that I accept the depositions, was there destruction?" Mark James said SCO's position is that IBM's developers relied on AIX/Dynix code in their sandbox when developing Linux. Judge Wells interjected, "But there was no destruction of code." Mark James replies that what was lost was knowledge of which developers had access to what particular source code. The code may not have been destroyed, but knowledge of how developers relied on AIX/Dynix code has been.

James then addressed the waiver issue and argued SCO's actions did not constitute a waiver.

IBM's Todd Shaugnessy replied. He said SCO has claimed IBM intentionally, and in bad faith, destroyed evidence. This is a major claim, and one that IBM takes very seriously. The claim is in the face of an IBM discovery record that can only be described as VAST. He related IBM's production and hours expended on it. He explained how much labor was used two years ago to provide CMVC access to SCO and that it seemed SCO never even used it, despite SCO's reasons they gave, that it was required to determine its use in contributing to Linux.

Shaugnessy described the IBM (management) meeting in 2003 which preceeded the cited email. IBM was starting a specific project related to Linux on PowerPC on which eight former AIX developers would be working. In that meeting a question was asked if those eight developers still had access to AIX's CMVC (which access would not be needed for the new project). It was determined that they did not, but perhaps they still had AIX sandboxes, but they didn't know. After that meeting, the email was sent.

He said that SCO has not identified any code from that project that was an improper contribution to Linux. SCO has not identified any lines of code from any of these eight developers. These developers were writing new, original, code unrelated to any of SCO's claims. The only AIX code identified as misused is JFS, completely unrelated to these developers' project.

Shaughnessy provided a copy of the deposition of Dr. Frye to Judge Wells and referred to it. He indicates that during his deposition Dr. Frye stated six seperate times that nothing was destroyed. Even SCO's deposition lawyer characterized Dr. Frye's testimony as that nothing was destroyed. He said that SCO has to demonstrate bad faith and SCO's briefs offer nothing to demonstrate it.

Shaughnessy said SCO's original claim in this motion was that IBM destroyed code. We see, and SCO now concedes, none was destroyed. Now SCO's theory is that they don't know what code the developers had access to. If SCO *really* wanted to know what code the developers had, they could have looked up the names of people in the LTC (provided by IBM) turned on the CMVC machine they've had for over two years in their office and see what code they checked out. But they didn't.

James replied for SCO and cited Judge Steward, Adams v. Gateway case, that "bad faith is not generally required... in order to find spoliation" (other than bad inference). Here we have an email talking about destruction of evidence, he said. It's clear from the deposition that the instruction was given. James reiterated his opening comments and claimed that CMVC does not provide information on who had what code and when, that it only shows the source code.

Ruling on SCO's spoliation motion, Judge Wells said that based on the evidence before her, as it is placed in context, SCO's motion is denied. In fact, she finds that the evidence (that SCO contended was destroyed) is available in CMVC. She finds that there was no bad faith on IBM's part and that no evidence was destoyed as it was, and still is, available.

After Judge Wells ruled on this, SCO's Mark James asked that, since her ruling is based on representations made by IBM's Todd Shaughnessy (that the information of what IBM employee had checked out what AIX code from CMVC and when), he requested IBM tell SCO how to obtain the information. Judge Wells asked Mr. Shaughnessy what IBM would be willing to do to answer their question. Todd respecfully said that the time for that has long passed, that discovery and expert discovery is over. He said that during discovery, while SCO had CMVC, they never said that they were unable to find that information. Judge Wells asked Mr. Shaughnessy to do what he can to provide that answer. It was further clarified, at Mr. Shaughnessy's request, that this is not reopening discovery nor will the answer, regardless of what is found, necessarily make any difference. Judge Wells requested Todd Shaughnessy to prepare the order on this motion, and Sashi Boruchow to prepare the order on the protective order motion.

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

A second witness sent me some notes, which clarify one point in particular, why IBM wanted the information regarding Dr. Leitzinger, namely that IBM sought to demonstrate a track record of tailoring testimony to favor clients. He also mentioned that Judge Wells told IBM it can protect Morton, which explains to me the suggestion regarding a motion in limine, at a later time and IBM can explore during cross (of Leitzinger).

On the spoliation motion, the clarification from the notes is that SCO used the case Chris mentioned to show that bad faith isn't required, but Judge Wells noted that the case applies to situations where there was destruction of evidence, and here that was SCO's assumption, not proven. Was material destroyed or just transferred? CMVC has everything. IBM then said that what SCO is really interested in is a ruling that will take them farther than evidence can. There was nothing destroyed, there is no prejudice. As for Wells' request that IBM help SCO figure out how to find things in CMVC, he reports that when SCO asked for the judge to tell IBM to show them now she said, "You should know," and then said, "I'm going to ask IBM in the spirit of cooperation to help SCO." I have to admit, that part puzzles me. What purpose would it serve, now that both discovery and expert discovery is over? The only thing I can think of is that it might help them at trial. When we get the transcript later, we'll perhaps get a deeper understanding.

Note that the new Cravath attorney, just added to the team, Michael Burke, argued for IBM, his maiden voyage. Nothing like being thrown into the pool.

As for the spoliation arguments, Groklaw member SpaceLifeForm reminds us that when IBM turned over all the CMVC materials in May of 2005, it also turned over a server and instructions, including even a script it wrote to help SCO find things, which you can see for yourself on the page linked to, Exhibit B. At the time, I wrote, "It tells them how to do everything but plug the server in to the electric outlet." Why SCO can't find things now is... unexplainable, particularly when Chris Sontag gave the court a declaration in which he said, "I have had experience in source control and source control management systems, similar to IBM's CMVC system."

Why doesn't SCO just ask him, the expert on source control and source control management systems? He went on to declare how easy it is, rudimentary even, to get out of such a system the materials SCO was asking the court for and then got. Now that was years ago. IBM pointedly told Judge Wells at the hearing, I'm told, that there is no evidence that SCO ever even looked at the CMVC materials. Actually, on reflection, what IBM should do is point to the instructions they already provided and say, There you go. And here's how to plug it in.

Honestly, these SCOfolk are so fun to watch, aren't they? It's like their memories get periodically wiped, zeros are written over all data, and we all start from scratch.

Well, not all of us. Groklaw is like an elephant. Groklaw never forgets.