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SCO's Memo in Support of Motion for Reconsideration of Spoliation Order - Updated
Monday, April 16 2007 @ 11:05 AM EDT

Here is SCO's Redacted Memorandum in Support of Its Motion for Reconsideration of the Order Denying SCO's Motion for Relief for IBM's Spoliation of Evidence, as text, thanks to Groklaw member caecer. And this is the Order SCO would like Magistrate Judge Brooke Wells to reconsider, where she ruled that IBM did *not* spoliate evidence.

SCO asserts that Wells misapprehended the facts, so it lays them out at length again. What it says sounds to me very much like what it told her the first time, so I'm not clear why they think this will work any better. More cases. More detail. You never know. But you're not supposed to reargue a motion, unless there really is some mistake on the part of the judge.

What came to my mind as I read it is Americans who shout at people who don't speak English and thus didn't understand them the first time. It misses a basic truth. The truth here is that you are not supposed to file motions for reconsideration unless you have a foundation for doing so, and it can't just be that you don't like the result you got the first time. This one is borderline, I'd say, at best.

So here's its motion for reconsideration. What it wants is a default judgment, that IBM be essentially inferred guilty of infringement as a sanction. I think we can agree that SCO probably can't prove significant copyright infringement, if any, using the evidence it has put on the table. SCO's trying to get IBM sanctioned, so that it wins via a back door. Again with a back door. In essence, it's arguing that maybe it could have found more evidence of specific lines of code proving methods and concepts were infringed, if only this evidence were still available to it. Therefore, the court should punish IBM and declare SCO the winner after all on a technicality. One of SCO's problems is that according to IBM, the evidence is, in fact, still available. Another is that SCO hasn't got any specific lines of code listed, that I know about, proving methods and concepts in the case. That's the other back door, also being reargued, where SCO is trying to introduce an entirely new theory of the case after discovery ended, via experts reports.

We've been through all of this before at the end of last year. SCO filed a spoliation motion back then, with media fanfare -- remember the Dan Lyons Forbes piece that ended up used as evidence, his interview with SCO lawyer Brent Hatch? (Here's IBM's memo in opposition to that motion, and SCO's reply, if you enjoy repetition.)

When I reread the Lyons reference, I realized that this event is perhaps why SCO came up with the false allegations about IBM feeding me documents and the Kevin Bacon 3-degrees-of-separation-ibiblio story, to defend themselves against the very clear example of one of SCO's lawyers speaking directly to Lyons about the case after Judge Wells told the parties to tone it down. It was, as I recall, Lyons who first brought up the issue of ibiblio and the documents allegation. And then *he* ends up an exhibit. From their standpoint, it maybe didn't feel so right. So they came up with a "you're another" defense. If it causes me some headaches and some expense, who cares about that? Certainly not SCO.

Here's how IBM used that Forbes interview in a discussion as to whether Wells's order was dispositive:

Despite Judge Wells' admonition about discussing this case in the press, SCO is quoted in the press criticizing Judge Wells' decision and discussing its effect. (Ex. 25.) Of particular relevance here, counsel for SCO is quoted in Forbes Magazine only a week after filing its objections as stating that, despite the Order, all SCO's claims and damages remain intact:
Hatch concedes the Wells ruling represented a setback for SCO. But he says SCO still has a strong case.

* * *

"If the judge had thrown out the case, that would be a real downer. But the claims are still there. The damages are still there," Hatch says.

(Ex. 12.) If, as SCO says, its claims and damages remain in the case after the Order, then it could not possibly be considered dispositive.

That was in IBM's Memo in Opposition to SCO's Objections to another order SCO didn't like, the Wells June 28, 2006 order. I guess it stung them, and being SCO, they decided to attack IBM unjustly to "even" the score. I'm just the drive-by victim, then, in such a scenario. On the other hand wasn't it Lyons who wrote that corporations should attack bloggers?

BASH BACK. If you get attacked, dig up dirt on your assailant and feed it to sympathetic bloggers. Discredit him.

ATTACK THE HOST. Find some copyrighted text that a blogger has lifted from your Web site and threaten to sue his Internet service provider under the Digital Millennium Copyright Act. That may prompt the ISP to shut him down. Or threaten to drag the host into a defamation suit against the blogger. The host isn't liable but may skip the hassle and cut off the blogger's access anyway. Also:Subpoena the host company, demanding the blogger's name or Internet address.

SUE THE BLOGGER. If all else fails, you can sue your attacker for defamation, at the risk of getting mocked. You will have to chase him for years to collect damages. Settle for a court order forcing him to take down his material.

Say, isn't that pretty much what has been happening to me? You think? Except instead of feeding alleged dirt to bloggers, it's been fed to mainstream media. That would seem to indicate that I am precisely the target, I'd have to conclude. Now, if I were SCO, I would call a press conference and tell them there's a conspiracy to unjustly bash me. Well. Actually, I think there is. And on that copyright DMCA "legal" advice from Lyons, I believed Diebold tried that trick and ended up paying $125,000 in damages. You probably don't want to follow legal advice from a journalist on how great it would be to file false accusations. And stop and think in a First Amendment context for a second. Suppose a journalist, say one at Forbes, wrote a piece about, say, HP. HP, let's say, didn't like it, so it hired detectives to try to dig up some dirt on the journalist to feed it to the media and/or threatened Forbes with a DMCA takedown. Starting to see the implications? Don't these people have any respect for the Constitution? The press? Human dignity? Fair play? I could go on, but I think you catch my drift.

Update: It seems Mr. Lyons has abandoned Floating Point, his attack-PJ-and-Groklaw blog, at least on WordPress, as he relates in this Forbes piece:

I've also operated a blog on a third system called WordPress. WordPress is an open-source program, meaning it's created by volunteers and anyone can read, copy and hack at the program's underlying source code. WordPress is free, and it's fairly easy to get started. But it is not so easy to figure out how to use the software. Techie types love WordPress because supposedly you can make it do whatever you want, if you know what you're doing. Which I, um, don't. Even posting photos--which in every other program is a brainless procedure--could be a pain in the neck on WordPress.

There is a help button, but it takes you to an almost impossible to navigate list of frequently asked questions. In frustration I ordered a manual called WordPress 2 Visual QuickStart Guide. But when the book arrived, I just sat there looking at it and then abandoned my WordPress blog.

I'd call that the alibi article, personally. Here's a Declaration of Todd Shaughnessy in support of IBM. And here's the hearing held in January. Man, it's getting so complicated to give you the context nowadays, because SCO is doing everything twice lately. It is losing, and it would rather not, I gather.

If you would like to see a more normal spoliation motion and a judge's explanation of the elements of a successful one, here you go. By normal, I mean somebody actually did something wrong. And here's part of why SCO wants to win this motion, laid out plainly.

What is SCO's purported basis for this motion? It claims the Magistrate Judge misunderstood the facts. She held that whatever evidence was erased is still available in CMVC and RCS, the code change control systems for AIX and Dynix/ptx respectively. Not so, says SCO. We wanted the early *drafts* of Linux code, the stuff that didn't make it into CMVC (Linux code doesn't go into CMVC), and we wanted to know which programmers retained some AIX and Dynix code in their sandboxes, so we could show that the programmers referred to AIX and Dynix when they transitioned to doing Linux code. (Question to SCO: Does Linux code compile in an AIX sandbox?) Yes, my friends, we are back to methods and concepts, which to date are not even in this litigation. But that's another ruling SCO is trying to get reversed. All very serpentine. If SCO had eggs, it could make ham and eggs. If it had ham. Here's what IBM's attorney Todd Shaughnessy told the court at the hearing, as related by one of Groklaw's reporters at the hearing:

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.

SCO's lawyer at that hearing argued pretty much the same thing that SCO argues here, to my eyes, that while source code is available, what SCO wanted was information on who had what code and when:

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.

SCO argued this back then, but their view is that Wells just didn't understand it properly, so it's once around the mulberry bush again.

I guess you could stretch the "misapprehension of the facts" standard as covering this. They are saying the judge just didn't get it. It's very possible she did, though, that she heard their argument, understood it perfectly, and didn't accept it. Since there is no code in this case tracing to these particular coders in the litigation, what does it have to do with the price of tea in China? And just maybe she noticed that the alleged deed was done back in the spring of 2003, and SCO apparently took no great steps to find the evidence in any way during discovery other than that Frye deposition, and then brought a motion for spoliation instead in 2007. Things that make judges go hmm. SCO does tell a tale of not really knowing about it in full or something. After a while my brain gets tired explaining SCO's thinking. I don't mean that the motion is necessarily hopeless, just that it ought to be, in a just universe.

IBM has told the court that the Linux Technology Center programmers don't use sandboxes, but AIX guys do. That is impossible, SCO argues. They all *must* use sandboxes, although there is no evidence to support that supposition offered. And IBM says they don't. That is the kind of thing that SCO could and should have pursued in discovery, but instead it has its experts opining that most people use sandboxes, as if that proves anything here. That's not evidence to me. If you are going to call someone a liar in a court of law, you do need some evidence. SCO says the special project was for Linux, and they were told to clean out their sandboxes, so they must use them. Um. OK. But they were not LTC programmers. It was a special project for PowerPC. And they were AIX guys who *would* have sandboxes, and that is what they were told to clean out, not Linux sandboxes, and anyway, most of them apparently didn't do it anyhow. So...

Then it argues that the evidence it can't now get is what a programmer on that special project might have retained. So, why didn't SCO just ask them? That is what discovery is for. Well, it did depose one of them, who testified, IBM explained at the hearing, six times that no evidence was destroyed.

One of SCO's experts compares the sandboxes to an auto body shop. Someone steals a car, strips it of various components and then repaints it, puts in new upholstery, etc., and that makes it hard to identify it as the stolen car. I gather AIX and Dynix/ptx are the stolen car, the auto body shop is the sandboxes at IBM, in SCO's mind anyway, and the new upholstered vehicle is Linux. This development fantasy of SCO's is very enduring. So much of this case is about what SCO thinks must somehow be true, like Linux couldn't happen so fast without Unix code or I must be a committeee of IBM lawyers. SCO's methods and concepts ladder theory is like that. Somewhere, in a universe far, far away, it *could* have happened like this. SCO just can't put its finger on it, so it concludes IBM must be at fault somehow.

But if SCO wanted to prove it, why didn't they just depose people, or ask for the computers and do forensics? It's puzzling. And since the only code from IBM in this litigation is JFS, which isn't what the special project guys were working on, the auto body analogy hits the wall and bursts into flames. Maybe you'll read it differently.

I know. SCO hopes its other motions for reconsideration/objections/motions to amend will somehow get all their methods and concepts material into the litigation. I doubt that will happen, so this is all kind of moot. But it must take a special kind of IBM patience to carefully answer each and every SCO allegation, which seem to be like the widow's oil that just kept pouring and pouring, without any apparent limit. It drives me bananas just reading the filings. Imagine having to answer them.

And the ultimate reason why you are not supposed to ask for reconsideration just to get another bite at the apple is because it's not fair. Think about motion practice. You follow the ABA format. SCO files the motion, IBM puts in a memo in opposition, then SCO replies. So if you do a motion for reconsideration that reargues the same points, in effect you have SCO speaking 4 times, and IBM only gets to speak twice. Also after the initial motion is argued, you find out all the arguments the other side presented, and so if you get to reargue the same points, you will do better, of course. It becomes your better version, extended from the original, and that is fundamentally unfair. In fact, SCO does a better job here than in the first motion that was denied. Naturally, it would, and that is no doubt part of the strategy. There is, as usual, no "fair and square" in this picture, not that I can discern, just another throw-it-at-the-wall-and-see-if-it-sticks motion, which requires IBM to go to the time, effort and expense of responding. And as with any motion, you can never totally guarantee that bad things won't happen. I have no doubt that IBM is taking the new cases and arguments seriously, as it must in order to answer it carefully, leaving no stone unturned.


Brent O. Hatch (5715)
Mark F. James (5295)

Stuart H. Singer (admitted pro hac vice)

Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)

Stephen N. Zack (admitted pro hac vice)

Attorneys for The ScO Group, Inc.








Case No. 2:03CV0294DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells


A. IBM's Representation That Sandboxes Are Only Used by AIX Developers Is False. 4
B. IBM's Representation That CMVC Contains the Same Evidence As the Sandboxes Is False. 7
C. SCO's Claims Regarding Evidence Lost in the Sandbox Purge Are Consistent with Statements Made by SCO When it Moved to Compel Production of CMVC. 11
D. IBM Has Not Followed Though on The Magistrate Court's Request to Identify Where in CMVC the Evidence SCO Contends Was Destroyed Can Be Found. 12



Adams v. Gateway, Inc.,
2006 WL 2563418 (D. Utah 2006)
Brown & Williamson Tobacco corp. v. Jacobson,
644 F. Supp. 1240 (N.D. Ill. 1986)
Brown & Williamson Tobacco Corp. v. Jacobson,
827 F.2d 1119 (7th Cir. 1987)
Cabinetware, Inc. v. Sullivan,
Civ. S. 90-313, LKK 1991 WL 327959 (E.D. Cal. 1991)
Computer Associates Int'l, Inc. v. Am. Fundware, Inc.,
133 F.R.D. 166 (D. Colo. 1990)
Hancock v. City of Oklahoma City,
857 F.2d 1394 (10th Cir. 1998)
In re Napster, Inc. Copyright Litig.,
462 F. Supp. 2d 1060 (N.D. Cal. 2006)
Mantle Ranches, Inc., v. U.S. Park Serv.,
950 F. Supp. 299 (D.Colo. 1997)
Price v. Philpot,
420 F.3d 1158 (10th Cir. 2005)
Servants of the Paraclete v. Does,
204 F.3d 1005 (10th Cir. 2000)
United States v. Maxfield,
No. 04CR00149, 2007 WL 121128, at *1


Plaintiff, The SCO Group, Inc. ("SCO"), by and through undersigned counsel, submits this Memorandum in Support of its Motion for Reconsideration of the Order Denying SCO's Motion for Relief for IBM's Spoliation of Evidence.


The Magistrate Court denied SCO's Motion for Relief for IBM's Spoliation of Evidence "for the reasons set forth by the Court at the hearing held on January 18, 2007." (March 2, 2007 Order.) At the January 18 hearing, the Magistrate Court said:

I am going to find that based upon the evidence before me, as it's put into context, reflects that SCO's motion will be denied. It cannot show that any evidence was lost or destroyed. In fact, I find that it is available and has been available through CMVC. The evidence before me, when seen in context, does not show that IBM acted in bad faith nor does the evidence show that it has been prejudiced because the evidence, as I indicated, has been and is reasonably available. So the motion regarding spoliation and the adverse inference instruction will be denied.

(1/18/07 Hrg. Tr., Ex. 1 at 56:2-11.)

SCO respectfully submits that this decision was based on a misapprehension of fact and law, and should be reconsidered on the following grounds:

First, the primary basis for the ruling that the evidence SCO contends IBM destroyed "is available and has been available through CMVC" is not correct. IBM's representations at the January 18 hearing in this regard are false. Neither CMVC (the AIX change control system referenced by the Magistrate Court) nor RCS (the Dynix/ptx change control system) contains the evidence SCO contends IBM destroyed.1 CMVC and RCS could not possibly show whether that code


had been retained on programmers' systems when they transitioned to work on Linux, or what particular subparts or versions of the operating system had been retained by the programmer. Furthermore, those systems could not possibly contain drafts of Linux code.

Second, SCO submitted substantial proof in the form of IBM executive and programmer emails and deposition testimony that IBM destroyed relevant evidence, and that evidence should be reconsidered now that SCO has shown that the destroyed evidence was not available elsewhere.

Third, the Court's finding that SCO was not prejudiced was based on the mistaken conclusion that the evidence was still available to SCO elsewhere. In reality, the evidence destroyed by IBM was not available to SCO in CMVC or RCS. In addition, the evidence destroyed is directly relevant to SCO's claim that IBM's Linux programmers referred to AIX and Dynix/ptx code while programming for Linux and to SCO's efforts to identify the AIX and Dynix/ptx source code behind IBM's disclosures to Linux, including IBM's numerous disclosures of methods and concepts.

Fourth, the Court's finding that IBM did not act in bad faith, for purposes of the adverse inference instruction requested by SCO, was also based on the mistaken conclusion that the evidence was still available to SCO elsewhere. In fact, SCO has shown that IBM directed that highly relevant and original evidence be destroyed just a month after the instant lawsuit was filed. Bad faith must be inferred from this conduct.




Reconsideration is warranted "where the court has misapprehended the facts, a party's position, or the controlling law." Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Neither a change in law nor new evidence is required. See, e.g., Mantle Ranches, Inc., v. U.S. Park Serv., 950 F. Supp. 299, 300, 302 (D. Colo. 1997) (granting in part motion to reconsider, though no change in law or new evidence existed). A district court has the discretion to reconsider any "order short of a final decree." Price v. Philpot, 420 F.3d 1158, 1167 n.9 (10th Cir. 2005). The consideration of the merits of a motion for reconsideration is squarely within that discretion. See United States v. Maxfield, No. 04CR00149, 2007 WL 121128, at *1 (Ex. A) (D. Utah Jan. 11, 2007) (citing Hancock v. City of Oklahoma City, 857 F.2d 1394,1395 (10th Cir. 1998).

IBM previously sought relief through a Motion for Reconsideration before this Court in similar circumstances (in a February 11, 2005 motion), and such relief was granted in part (in an April 20, 2005 order). Accordingly, it is well within the discretion of the Magistrate Court to reconsider the denial of SCO's Motion for Relief for IBM's Spoliation of Evidence on the grounds raised herein.


Contrary to IBM's representations at the January 18 hearing, the evidence that SCO contends IBM destroyed in programmer sandboxes is not available. At the hearing, IBM made the following representations to support its contention that, if IBM Linux Technology Center


("LTC") programmers were in fact instructed to purge their sandboxes or other computer workspaces, no evidence was actually destroyed: (1) sandboxes are only used by AIX developers, not by IBM's Linux developers; (2) the CMVC system contains the same evidence that SCO contends was destroyed in the purging of programmer sandboxes; and (3) SCO had previously said CMVC had this evidence. The Magistrate Court ultimately adopted these representations as a core element of the decision, finding that the evidence SCO contends was destroyed "is available and has been available through CMVC." Yet, each of these IBM representations is false, for the reasons set forth below.

Considering the importance of IBM's representations, moreover, the Magistrate Court directed IBM to assist SCO in identifying in CMVC where the duplicate evidence could be found that is, the evidence lost in the purging of the programmer sandboxes. IBM has not done this, and SCO contends that it cannot be done: Neither CMVC nor RCS contain the evidence that was destroyed in the purging of the programmer sandboxes. The following evidence thus underscores the reasons IBM did not follow up on the request that the Magistrate Court made.

A. IBM's Representation That Sandboxes Are Only Used by AlX Developers Is False.

Sandbox is a term used to describe private computer workspaces in which programmers can draft and test code on which they are working without impacting the entire system. At the hearing, IBM made the following representation to the Court: "Sandboxes, Your Honor, are a development tool that is used in AIX. They are not used in Linux. They are not used in the Linux Technology Center." (Ex. 1 at 37:7-9.) This IBM argument overlooks the facts that the instruction was given to Linux programmers to purge their sandboxes. This instruction would


have made no sense if, as IBM suggests, Linux programmers did not have or use sandboxes. Moreover, also contrary to IBM's representation, those sandboxes or other similar workspaces would have had to have been used by those programmers to develop their code for Linux.

Indeed, IBM's representation that its Linux programmers did not use sandboxes is contradicted by a public interview given by one of IBM's own programmers. (Ex. 2, .) IBM programmer William Lee Irwin III explained that he had been employed by Sequent and IBM since 2000, and that he worked on Dynix/ptx, then AIX, and then Linux. When asked whether he had "any tips for the aspiring kernel hacker" (Linux programmer), Mr. Irwin responded:

A more effective approach appears to be creating a sandbox where the data is disposable and the system nonessential and running the code and figuring out what went wrong when the system crashes.

(Id.) Directly contrary to IBM's representations, this IBM Linux programmer shared his experience on using sandboxes when developing for Linux and advised others to do the same.2

SCO's computer science expert Marc Rochkind has also confirmed that "IBM programmers for Dynix/ptx and Linux, as well as AIX, would have had to use sandboxes, or other similar workspaces, to draft, revise and implement computer code for those systems." (Declaration of Marc Rochkind dated 3/16/07 ("Rochkind Decl."), 8.) He explains:

[I]t would be incredibly difficult, if not impossible, to write and revise computer code without using a separate workspace, such as a sandbox, in which to implement and test those revisions. It is essential that all details of a proposed operating feature or patch be worked out in an environment separate from the online or official


copy of the source code. This separate environment, the private programmer workspace, is often called a sandbox.

(Id. 7.)

SCO's computer science expert Evan Ivie has also confirmed that "IBM programmers for Dynix/ptx and Linux, as well as AIX, used sandboxes, or other similar workspaces or programming environments, to draft, revise and implement computer software for those systems." He explains:

Any creative process requires an environment and facility where that creative process can take place. An artist creates paintings in a studio. A woodcarver creates carvings in a woodshop. Artisans, craftsmen, and skilled workers develop facilities where they can perfom their work: workbenches, body shops, bakeries, etc. Programmers are no different.
* * *
If IBM had not adopted and/or developed some type of suitable environment for their programmers, it would have taken them back to the late 1950's and early 1960's and would have made programming an incredibly inefficient and slow process. This would be like taking a tractor away from a farmer and giving him a shovel. Even if IBM had tried it, programmers would have resisted the move.

(Declaration of Dr. Evan Ivie dated 3/16/07, "Ivie Decl.", 2 and 5 respectively.)

Accordingly, IBM's argument that sandboxes are not used in Linux makes no sense and cannot not somehow amend its instruction to its Linux programmers to purge their sandboxes. That instruction would have impacted all IBM programmers working in the LTC.


B. IBM's Representation That CMVC Contains the Same Evidence As the Sandboxes Is False.

At the hearing, IBM further argued that ihe evidence that had been in the purged sandboxes was still available to SCO on the CMVC system that IBM had produced to SCO. IBM made the following representations at the hearing regarding the CMVC system it produced to SCO:

Now [SCO's] premise is, well, we may not have lost source code, but what we lost is the ability no figure out which particular programmers had looked at or had access to which particular AIX or Dynix source code. That Your Honor, is wrong. SCO has that information in spades. Precisely as you pointed out that was the purpose of producing CMVC. If SCO really cared, if SCO really wanted to know what code a particular developer had on their machine, it would be a very simple exercise to find out. SCO could have easily taken the list of individuals we provided of people who made contributions to AIX and Dynix and compared it to anyone of the other lists we provided them that identified people who made Linux contributions or who worked in the LTC and could have determined if any names were the same. Having determined that names were the same, SCO could have but chose not to turn the [CMVC] machine on and look at it. Because had they done so, they would have been able to figure out exactly what developer X looked at and when, what was checked out, when it was checked out, and what developer X did to it.

(Ex. 1 at 45:13-46:8.) IBM further represented that destruction of evidence in a sandbox was "a bit like Your Honor having discarded a courtesy copy of a motion you ruled on a year ago knowing that Matt has a copy." (Id. at 35:23-25.)

This is simply not accurate. Fundamentally, code on CMVC or RCS is not a copy of code in programmer sandboxes. The type of evidence found in CMVC or RCS is entirely different from what would be on a programmer sandbox. While IBM has contended that a change management control system, such CMVC or RCS, shows what code had been "checked


out" by programmers, those systems could not possibly show whether that code had been retained on programmers systems when they transitioned to work on Linux, or what particular subparts or versions of the operating system had been retained by the programmer. The specific AIX or Dynix/ptx code that a Linux programmer chose to retain on his system while programming for Linux would have provided important evidence in that SCO could compare that particular code to the programmers' Linux disclosures. The fact that some code the programmer chose to retain on his system might be duplicated somewhere on a code repository entirely misses the point.

SCO's computer science experts Marc Rochkind and Evan Ivie have confirmed the impossibility of CMVC or RCS containing the evidence IBM now claims they do. Mr. Rochkind explains:

[N]either CMVC (as to AIX) nor RCS (as to Dynix/ptx) would show whether Linux programmers had retained AIX and Dynix/ptx on their systems when developing code for Linux, and if so, what parts of the AIX and Dynix/ptx operating systems they retained.
[A] sandbox is the only place where the progression of code drafts can be viewed. For AIX code, CMVC shows the initial code that was checked out, and the final code that was checked back in, but not all the steps in between. The RCS system for Dynix/ptx provides even fewer details than CMVC. Yet it is these steps, these intermediate drafts, saved only on programmers' sandboxes that would have been so important to develop further proof of IBM's copying.

(Rochkind Decl. 12-13.) Similarly, Dr. Ivie explains:

There are several fundamental flaws in the use [of] a change control system, such as CMVC or RCS, to track a software development effort. A typical change control system allows a programmer to "check out" a module, to modify and test it for


some unspecified amount of time, and then when satisfied to "check it back in" to the system. Perhaps this might be compared to trying to see what is going on in a darkened room with a strobe light. However, the strobe only illuminates a small part of the room (the code checked in and out) and the strobe is controlled by a programmer who may or may not want you to see all that is going on (visibility only at check-in time).
For example, let us assume that the programmer is developing a module for Linux, but is basing it on a module that comes from a contractually-protected operating system owned by another company. If the only visibility that we have is the module after it has been appropriately disguised, then tracing the source becomes much more difficult. Perhaps one could compare this to a body shop for processing stolen cars. It is much easier to prove auto theft if one can find the body shop being used. After a paint job, changes to upholstery, options, accessories, and careful modification of the engine and body numbers, it is much more difficult to identify the theft.

(Ivie Decl. 8-9).

Using another analogy, Mr. Rochkind explains that CMVC is like a library, and the AIX files in CMVC (or Dynix files in RCS) are like books in a library. (Rochkind Decl. 14.) Just as a library has records of which books have been checked out, when they were checked out, who checked the books out, and when they were checked back in, a change management control system like CMVC or RCS might have records of which files in AIX or Dynix/ptx were checked out, when they were checked out, who checked them out, and when they were checked back in. (Id. 14.)

What a library does not record, and could not record, is what was done with the books during the time they were checked out. The records in a library will not show: whether the pages of book were copied while the book was checked out; whether the reader retained pages he copied from the book he checked out long after checking the book back in; whether the reader


later used those pages to write another book; or what the progression of drafts of the readers' other book looked like, such as whether the first drafts were similar to the library book he had copied, and then became progressively dissimilar. (Id. 15.)

Similarly, Mr. Rochkind explains, none of this information is present in CMVC or RCS. (Id. 16.) Like a library system, CMVC and RCS do not show what the programmers did with the AIX or Dynix/ptx files on their systems (their "sandboxes") after they checked them out, or even after they checked them back into CMVC or RCS. Specifically; CMVC and RCS do not show: whether the AIX or Dynix/ptx files were copied or saved to the programmers' system after being checked out; whether the programmer retained the copied AIX or Dynix/ptx files on his system long after checking the completed files back into CMVC; whether the programmer ever referred back to those AIX or Dynix/ptx files when he was developing for another operating system, such as Linux; what the progression of drafts of the programmers' code for the other operating system, such as Linux, looked like whether the first drafts were similar to the AIX or Dynix/ptx files he had copied and retained on his system, and then became progressively dissimilar, until the final version actually bore little resemblance to the AIX or Dynix/ptx files on which it had been based; or whether other programmers made use of the checked-out code by obtaining it in already-checked-out form from the programmer who originally checked it out and saving it to their sandboxes. (Id. 16).

In contrast, Mr. Rochkind and Dr. Ivie explain, a programmers' sandbox would show all of this information. (Id. 17; Ivie Decl. 12.) It would show whether AIX and Dynix/ptx files were present and available to the programmer as he worked on Linux, and if so, which particular code the programmer retained and accessed. It would also show his initial drafts of code and the


progression of drafts after that initial draft, leading to the final version. Plainly, drafts of Linux code would not be available on CMVC or RCS.

In summary, CMVC and RCS simply would not and could not contain the evidence that would have been available on IBM Linux programmer sandboxes or other private computer work spaces.

C. SCO's Claims Regarding Evidence Lost in the Sandbox Purge Are Consistent with Statements Made by SCO When It Moved to Compel Production of CMVC.

At the January 18 hearing, the issue also arose whether SCO, in moving to compel IBM to produce the CMVC system, had previously stated that CMVC contained the same information SCO now contends was destroyed in the purging of programmer sandboxes. Specifically, at the hearing, the Magistrate Court noted that counsel for SCO had in February 2004 represented that the CMVC system would enable SCO to "get every version, every iteration [of AIX]" and that counsel further stated that a confidential IBM document regarding CMVC "gives a simplified description at the bottom saying what it boils down to is that all levels of all files are stored on a central server and are available for updating by those with proper authority." (Ex. 1 at 29:17- 20.)3

SCO correctly represented at that February 2004 hearing that CMVC contained information that was important to the development of SCO's case as to IBM's misuse of AIX technology in Linux. SCO did not represent that such information was coterminous with the information SCO now contends IBM destroyed in programmer sandboxes. SCO counsel never contended in 2004 that CMVC or RCS would show which Linux programmers retained AIX or


Dynix/ptx code on their systems when programming for Linux, or what particular code they retained. SCO counsel also plainly never contended in 2004 that CMVC or RCS would have had drafts of Linux code. Thus, SCO's prior representations regarding CMVC or RCS have no relevance to SCO's contention in the instant motion that the purging of programmer sandboxes destroyed relevant evidence.

In connection with this issue, IBM also repeatedly said at the hearing that SCO must not have even used the CMVC system that was produced implying that SCO would not know whether it contained the information SCO contends was destroyed in the purging of programmer sandboxes. IBM stated that "it appears that SCO has done absolutely nothing with CMVC," and "SCO could have but chose not to turn the [CMVC] machine on and look at it." (Ex. 1 at 34:24- 25 and 46:3-4, respectively.) These statements are baseless. SCO did use CMVC extensively. At his deposition, Marc Rochkiid clearly testified: "My analysis of AIX, as I say in my report, was based on the CMV CMVC system that was provided by IBM in the form of an actual physical computer, and all of my access to AIX source during the period when I was preparing my original report came off of that system." (Ex. 4 at 242:3-8.) Mr. Rochkind further explained in his declaration his extensive use of CMVC to identify material misused by IBM. (Rochkind Decl. 3.) Nevertheless, as set forth above, neither CMVC nor RCS is a substitute for the evidence that would have been contained in the programmer sandboxes.

D. IBM Has Not Followed Through on the Magistrate Court's Request to Identify Where in CMVC the Evidence SCO Contends Was Destroyed Can Be Found.

Considering the representations that IBM made regarding the availability of evidence on CMVC, the Magistrate Court asked IBM to assist SCO in locating the evidence in CMVC that


SCO contends was destroyed by virtue of the instruction to purge programmer sandboxes. Specifically, the Magistrate Court directed:

The standard I think is reasonably available. I am going to ask IBM, in the spirit of cooperation, Mr. Shaughnessy, to do what you can or have others do it to see if you can assist in identifying it. That doesn't mean that anything is going to change in terms of the deadlines and the scheduling order cutoffs. But if there is somebody who readily has that information, I would ask you to assist in doing that.

(Ex. 1 at 58:ll-18.) Notwithstanding this request by the Magistrate Court, and the clear importance of IBM's representations on this regard to the Magistrate Court's conclusions, IBM has not taken any steps to assist SCO in identifying in CMVC (or RCS) the evidence SCO contends was destroyed. IBM's inaction in this regard speaks volumes about the very representations that were so central to the Magistrate Court's conclusions. Moreover, SCO has submitted the clear evidence discussed above that plainly rebuts IBM's representations. CMVC and RCS while useful for many purposes simply do not show the particular AIX or Dynix/ptx files that Linux programmers' systems retained on their systems after they began programing for Linux, and do not contain intermediate drafts of Linux code.


SCO submitted substantial proof in the form of IBM executive and programmer emails and deposition testimony that IBM destroyed relevant evidence, and that evidence should be fully considered since SCO has established that the destroyed evidence was not available elsewhere:


Swanberg Email On April 8, 2003 one month after SCO's lawsuit was filed and shortly after the decision to restrict access to AIX and Dynix/ptx source code had been made Randal Swanberg, a senior IBM executive, sent the following email to IBM managers and team leaders relaying additional instructions:


(Ex. 5.)

Daniel Frye Deposition Testimony: The decision described in the Swanberg email was then carried out more broadly within IBM. Daniel Frye instructed Linux programmers within IBM's LTC to "purge" or "delete" AIX and Dynix/ptx source code from their local machines and sandboxes. Dan Frye testified:



(Ex. 6 at 92:lO-93:l (emphasis added).) In short, programmers within the LTC, who had previously had access to AIX and Dynix/ptx code, and who had had that access removed, were then further instructed to purge or delete all such code from their machines and to purge and delete the contents of their sandboxes.

Paul McKenney Testimony: Linux programmer (and former Dynix/ptx programmer) Paul McKenney confirmed that he deleted Dynix/ptx source code from his machine in response to such an instruction. He testified:




In short, Mr. McKenney confirmed that he followed the directive of the OSSC and Dan Frye, and deleted code from his computer following SCO's lawsuit.


The Magistrate Court's finding that SCO was not prejudiced was based on the mistaken conclusion that the evidence was still available to SCO. Because SCO has shown the destroyed evidence is in fact not available on CMVC or RCS, SCO asks that this conclusion be reconsidered. The evidence destroyed by IBM is highly probative to SCO's claims and its destruction creates clear prejudice.

The presence of AIX and Dynix/ptx code in the sandboxes of programmers in IBM's LTC at their very fingertips would have further refuted IBM's ongoing assertion that its LTC programmers did not access or rely on Dynix/ptx and AIX source code when they were programming code for Linux. Moreover, the particular subparts and version of the Dynix/ptx or AIX operating systems that the programmer chose to retain would have enabled SCO to provide more specific identification of the AIX or Dynix/ptx code on which the programmers' Linux disclosures was based. Finally, intermediate drafts of Linux code from the sandboxes would have most clearly demonstrated the progression of code from the initial AIX or Dynix/ptx code on the sandbox to the final code that was ultimately disclosed to Linux. Mr. Rochkind has explained this prejudice: "Even by reviewing only the final contributions of code to Linux, I identified a significant instance of AIX code in Linux and multiple instances of Dynix/ptx code


in Linux. The availability of drafts from sandboxes would have shown whether even more instances of direct copying existed." (Rochkind Decl. 18.) Dr. Ivie concurred. (Ivie Decl. 15.)

The prejudice to SCO from this destruction is particularly severe in light of the fact that Dynix/ptx methods and concepts improperly disclosed to Linux were stricken from SCO's case because SCO was not able to identify the Dynix/ptx source code behind the methods and concepts with more specificity. This is because the source code deleted from Linux programmer sandboxes would have substantially helped SCO identify the specific Dynix/ptx source code behind these methods and concepts. By showing what Dynix/ptx code IBM Linux programmers had at their fingertips, the sandboxes or similar workspaces (if they had not been purged) could have substantially narrowed the scope of code that SCO had to review to determine what particular code the progmmmer had in his mind when he disclosed the method and concept to Linux. This would have made that process of identification of code underlying methods and concepts significantly more practicable. Thus, IBM's destruction of this sandbox evidence is particularly prejudicial to SCO in light of the June 28, 2006 Order striking Dynix/ptx methods and concepts from SCO's case (affirmed in November 2006, pending a motion for reconsideration).

An excellent example of this (just one example of many) is the IBM programmer Mr. Irwin. SCO identified Mr. Irwin as making improper disclosures to Linux in Item Numbers 38, 167, 171, 172, 175 of SCO's December 2005 Submission. These items were all stricken for insufficient specificity. SCO contends that Mr. Irwin's sandbox would have facilitated the


identification ofthe Dynix/ptx code behind the methods and concepts he disclosed the very information SCO was sanctioned for not providing.

SCO has identified numerous other former Dynix/ptx programmers whom IBM transferred to the LTC to program for Linux, and who, SCO contends, improperly contributed methods and concepts to Linux.6 Like Mr. Irwin, each of these programmers would likely have used sandboxes, or similar workspaces, in developing Linux. These sandboxes or workspaces would have confirmed (had they not been purged) whether these programmers maintained access to old Dynix/ptx code (as their emails and other comments suggested they did) and which parts of Dynix/ptx they retained. The sandboxes also would have contained the drafts of these programmers' code disclosures to Linux, from which copying could more directly be proven.

Accordingly, the evidence destroyed in the purging of the sandboxes is highly relevant to SCO's claims. The importance of the initial source code from which later drafts were developed, and the prejudice flowing from its destruction, was recognized in a similar case involving copyright infringement. In Cabinetware, Inc. v. Sullivan, No. Civ. S. 90-313 LKK 1991, WL 327959 (E.D. Cal. 1991) (Ex. B), the defendant destroyed source code after receiving a document request for such code. The magistrate judge found that "computer programs can be easily modified to disguise the copying of source codes and that a comparison of [the defendant's] initial source code with [the plaintiff's] source code is of critical importance in this case." Id. at *2. Therefore, the magistrate judge recommended that an adverse instruction be given. The district court agreed that the evidence that was destroyed was "essential to plaintiff's


case" of copyright infringement, and entered a default judgment on the issue of liability against the defendant. Id. at *2, 4. As in the Cabinetware case, the code in IBM Linux programmers' sandboxes was important to SCO's case, because computer programs can so "easily be modified to disguise the copying of source codes."


SCO also seeks reconsideration of the decision that SCO did not show that IBM acted in bad faith. Bad faith can and should be inferred from the circumstances surrounding IBM's directive to purge programmer sandboxes or workspaces. As IBM became involved in Linux, IBM repeatedly and publicly boasted that its experience in and disclosures from AIX and Dynix/ptx was the critical difference in evolving Linux from a hobbyist system to a commercially-hardening operating system. For example, in an interview with Linux Magazine about the state of the Linux kernel in 2001, IBM programmer Patricia Gaughen stated that Linux


another example, Dan Frye, the Director of the LTC, confirmed in an interview with the Consulting Times that the LTC "wanted skills from across IBM, and we have people from AIX, and OS2 . . . and PTX, and Research and so on." (Consulting Times, Inside IBM Dan Frye and the Linux Technology Center, Ex. 9.) Frye also discussed the porting of IBM's proprietary technology to Linux, stating "[IBM] just add[s] arms and legs and skills to make [projects within Linux] go faster." (Id.)

When SCO realized that IBM was improperly using these Unix-derived works in Linux, SCO confronted IBM regarding the problem without success, and then filed the instant lawsuit


against IBM on March 6, 2003. SCO's initial complaint against IBM made clear that the, conduct of the LTC in making disclosures to Linux development was at the heart of the lawsuit.

IBM's destruction of evidence then ensued as a direct response to the lawsuit. After SCO filed its lawsuit, IBM immediately determined that access by its Linux programmers to AIX and Dynix/ptx code should be removed. This shows that there was no confusion on IBM's part as to the significance of the AIX and Dynix/ptx code to which its Linux programmers had access and the nature of the problem alleged by SCO in its complaint. However, IBM did not stop there. IBM's OSSC then decided that Linux programmers whose access had been removed should also "purge" their sandboxes or similar workspaces. That OSSC decision was then implemented in IBM's Linux Technology Center the very organization within IBM that was tasked with developing the code for Linux that was at issue in SCO's lawsuit.

This rapid succession of events from SCO's lawsuit to the destruction of the sandbox evidence necessarily creates an inference of bad faith. IBM cannot reasonably contend that its destruction of evidence was accidental or coincidental. Rather, the destruction was an intentional act taken in response to the filing of SCO's lawsuit. This establishes willfulness and bad faith. Furthermore, IBM spent the next two years after the lawsuit resisting efforts of SCO to obtain access to the code repository systems CMVC and RCS that it now claims absolve it of any culpability for destroying evidence in 2003.

At the January hearing IBM argued that SCO has not satisfied the bad faith element because "SCO has not come forward with a shred of evidence that any member of the LTC, or Mr. Swanberg, ever entertained the thought that what they were doing by making this very simple request was destroying evidence." But this argument goes far beyond what the law


requires of SCO to show bad faith. Bad faith can be clearly inferred from circumstantial evidence. Adams v. Gateway. Inc., No. 2:02-CV-106 TS, 2006 WL 2563418, at *3 (D. Utah 2006) (Ex. C). In parlicular, courts have found the timing of the destruction of evidence whether evidence is destroyed after notice that it could be relevant in litigation probative to bad faith. See. e.g., In re Napster. Inc. Copyright Litig., 462 F. Supp. 2d 1060, 1070, 1072-74 (N.D. Cal. 2006) (finding duty to maintain and not destroy relevant email and other documents after notice of litigation, and that destruction after notice of litigation is relevant to determination of willfulness or bad faith); Computer Associates Int'l. Inc. v. Am. Fundware. Inc., 133 F.R.D. 166, 169-70 (D. Colo. 1990) (finding deletion of source code by computer program developer in copyright action merited spoliation sanction of default because timing of destruction after notice of litigation); Brown & Williamson Tobacco Corp. v. Jacobson, 644 F. Supp. 1240, 1248-49 (N.D. Ill. 1986) (noting under a totality of the circumstances analysis that selective destruction after notice that a lawsuit is pending may serve as basis for finding bad faith spoliation); see also Brown & Williamson Tobacco Corp. v. Jacobson, 827 F.2d 1119, 1134-35 (7th Cir. 1987) (affirming jury finding in trial court on same).

The decision in Computer Associates International. Inc. v. American Fundware. Inc., 133 F.R.D. 166, 169-70 (D. Colo. 1990), is particularly instructive. In that case, Computer Associates ("CA") alleged that the defendant, American Fundware ("AF"), improperly copied its software in violation of their agreement. As in the SCO case, CA brought these issues to AF's attention and, when a resolution could not be reached, filed suit against AF. Id. at 168. Before that time, AF had been destroying all previous versions of the software at issue, other than the current version, and AF continued this practice after the litigation had commenced. Id. CA


moved for sanctions based on this spoliation of evidence. The court imposed a default judgment on AF for its destruction even though the court found that the practice of deleting old versions "is commonly followed in the industry, for legitimate reasons, and is not inherently wrongful." Id. The Court persuasively explained: "It is inconceivable that after the October 1986 [pre-litigation] meeting, AF did not realize that the software in its possession would be sought through discovery. Certainly commencement of the action settles any doubts." Id. at 169 (emphasis added). Therefore, the court concluded that the destruction was willful and in bad faith, and that the destruction of source code, the "best evidence" of copying, inflicted "the ultimate prejudice." Id. at 170. In this case where IBM actually undertook the destruction of evidence in response to the litigation and with clear notice that the evidence would be relevant to SCO's claims bad faith should be inferred.



Based on the foregoing, SCO respectfully requests that the Magistrate Court reconsider the March 2, 2007 Order, and grant the relief requested by SCO.

DATED this 16th day of March, 2007.

Brent 0. Hatch
Mark F. James

Robert Silver
Stuart H. Singer
Stephen N. Zack
Edward Normand



Plaintiff/Counterclaim-Defendant, The SCO Group, Inc., hereby certifies that a true and correct copy of the foregoing REDACTED SCO'S MEMORANDUM IN SUPPORT OF ITS MOTION FOR RECONSIDERATION OF THE MARCH 2, 2007 ORDER DENYING SCO'S MOTION FOR RELIEF FOR IBM'S SPOLIATION OF EVIDENCE was served on Defendant/Counterclaim-Plaintiff, International Business Machines Corporation, on this 21st day of March, 2007, via CM/ECF to the following:

David Marriott, Esq. ([Email])
Cravath, Swaine & Moore LLP

Todd Shaughnessy, Esq. ([Email])
Snell & Wilmer LLP

1 The Magistrate Court only referenced CMVC, which is an AIX code repository. CMVC does not contain any Dynix/ptx code, so could not possibly have contained duplicates of any Dynix/ptx code that SCO contends was destroyed. Therefore, SCO also addresses herein IBM's anticipated argument that any destroyed Dynix/ptx code would have been included on the Dynix/ptx change control system, RCS, comparable to AIX's CMVC.

(Referenced here)
2 This same IBM programmer was identified in SCO's December 2005 Submission as a significant contributor of misused material to Linux.

(Referenced here)
3 The hearing referenced was a February 6, 2004 hearing. (Ex. 3 at 23:18-24:ll.)

(Referenced here)
4 The Read Copy Update (or RCU) technology is one of the major items of Dynix/ptx technology SCO contends was improperly disclosed by IBM.

(Referenced here)
5 This is remarkable testimony since Mr. McKenney was, at this time, a Linux programmer and not a Dynix programmer.

(Referenced here)
6 The group includes: Dipankar Sarma, Paul McKenney, Jack Vogel, Swaminathan Sivasubramanian, Michael Hohnbaum, Gerrit Huizenga, Patricia Gaughen, Martin Bligh, Suparna Bhattacharya, Badari Pulavarty, Hanna Linder, Tim Wright, James Cleverdon, and Dave Hansen.

(Referenced here)

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