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IBM's Greatest Hits: Exhibit 12, Sept. 2003 -- What code? Exactly where?
Wednesday, January 31 2007 @ 09:05 AM EST

We have seen SCO's answers to IBM's Second Set of Interrogatories, but not the text of the interrogatories themselves [PDF], so here it is, IBM's Second Set of Interrogatories and Second Request for Production of Documents [PDF], as text. This is yet another exhibit, Exhibit 12, in IBM's list of 597 exhibits in support of its various summary judgment motions -- the motions SCO has acknowledged might mean SCO's case will never see a jury.

When you notice the date, September of 2003, and IBM's simple request -- "Please identify, with specificity (by file and line of code), (a) all source code and other materials in Linux ... to which plaintiff has rights; and (b) the nature of plaintiff's rights, including but not limited to whether and how the code or other material derives from UNIX" -- it's truly unbelievable that we still don't know the answer. For that reason alone, this document deserves to be preserved as text in our collection. This document represents the case in microcosm.

This proved to be a very useful interrogatory, and you will find it referenced in the following:

IBM's Redacted Memo in Opposition to SCO's Objections

IBM's Memo in Support of its Motion for SJ on SCO's Interference Claims

SCO's Redacted Memo in Opposition to IBM's Summary Judgment Motion on SCO's Interference Claims

IBM's Memorandum in Support of Summary Judgment Motion on SCO's Contract Claims

SCO probably would have done better to just answer. It reflects the IBM litigation style: build on a quiet but solid foundation, and then stand firmly exactly there, right on the target, from that day onward.

This interrogatory is referenced in both Judge Wells Order Granting in Part IBM's Motion to Limit SCO's Claims and her December 2003 Order Granting IBM's Motions to Compel Discovery, so IBM's solid foundation style worked.

If you really want to laugh (or cry), though, reread IBM's Memorandum in Opposition to Plaintiff's Motion for Enlargement of Time to Respond to IBM's Motion to Compel Discovery from back in October of 2003, where SCO had asked [PDF] for two more weeks to respond to this very interrogatory and IBM told the court that SCO was just stalling and should be made to provide the answers immediately. Yes, friends, back in October of 2003 SCO argued that IBM's motion to compel discovery was "premature" and said it needed two extra weeks to answer this interrogatory. It's now 2007. And IBM says it still doesn't know what it is alleged to have done. And that is SCO's litigation strategy, I'd say: Don't tell nobody nuttin'.

But here is the hilarious part: it never did answer by the new deadline, got sanctioned for it, and now it would like the court to give it another opportunity to put some theories on the table after all: "SCO seeks to amend its December 2005 Submission of 'misused material' to incorporate certain evidence and analysis from SCO’s expert reports filed in May 2006." And it continues to argue about whether the court was justified to penalize it for not responding to IBM's request for information with specificity, a request that in some particulars dates back to 2003, four long, long years ago.

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

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)
Thomas G. Rafferty (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,

against

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant.

DEFENDANT IBM'S SECOND SET
OF INTERROGATORRIES AND
SECOND REQUEST FOR
PRODUCTION OF DOCUMENTS

Case No. 2:03CV-0294 DAK

Honorable Dale A. Kimball

Pursuant to Rules 33 and 34 of the Federal Rules of Civil Procedure, defendant International Business Machines Corporation ("IBM") submits this Second Set of Interrogatories and Second Request for the Production of Documents to plaintiff The SCO Group, Inc. ("plaintiff").

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

Answers to the interrogatories, and all documents and things responsive to the document requests must be served on the undersigned attorneys for IBM at the offices of Cravath, Swain & Moore LLP,[address] within 30 days of service of these interrogatories and document requests.

Interrogatories

INTERROGATORY NO. 12:

Please identify, with specificity (by file and line of code), (a) all source code and other materials in Linux (including but not limited to the Linux kernel, any Linux operating system and any Linux distribution) to which plaintiff has rights; and (b) the nature of plaintiff's rights, including but not limited to whether and how the code or other material derives from UNIX.

INTERROGATORY NO. 13:

For each line of code and other material identified in response to Interrogatory No. 12, please state whether (a) IBM has infringed plaintiff's rights, and for any rights IBM is alleged to have infringed, describe in detail how IBM is alleged to have infringed plaintiff's rights; and (b) whether plaintiff has ever distributed the code or other material or otherwise made it available to the public, as part of a Linux distribution or otherwise, and if so, the circumstances under which it was distributed or otherwise made available, including but not limited to the product(s) in which it was distributed or made available, when it was distributed or made available, to whom it was distributed or made

2

available, and the terms under which it was distributed or made available (such as under the GPL or any other license).

Document Requests

REQUEST NO. 74:

All documents relating to SCO Forum 2003.

REQUEST NO. 75:

All documents relating to the information requested in Interrogatory Nos. 12-13.

Instructions and Definitions

Defendant 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.

DATED this 16th day of September, 2003.

SNELL & WILMER LLP

__[signature]___
Alan L. Sullivan
Todd M. Shaughnessy

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

Counsel for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

3

Of counsel:

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

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

4

SNELL & WILMER LLP
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
[Address]
[Phone]
[Fax]

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
Thomas G. Rafferty (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,

against

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant.

CERTIFICATE OF SERVICE OF
DEFENDANT IBM'S SECOND SET
OF INTERROGATORIES AND
SECOND REQUEST FOR
PRODUCTION OF DOCUMENTS

Case No. 2:03CV-0294 DAK

Honorable Dale A. Kimball

I hereby certify that on the 16th day of September, 2003, a true and correct copy of DEFENDANT IBM'S SECOND SET OF INTERROGATORIES AND SECOND

REQUEST FOR THE PRODUCTION OF DOCUMENTS was delivered 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]

By U.S. Mail, postage prepaid:

David Boies
BOIES, SCHILLER & FLEXNER LLP
[Address, phone]

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

Leonard K. Samuels, Esq.
Fred O. Goldberg, Esq.
BERGER SINGERMAN
[Address]

/S/ Todd M. Shaughnessy


2


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