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July 21st Letter to the Bankruptcy Judge From IBM
Monday, August 10 2009 @ 01:18 PM EDT

A July 21st letter to the judge from IBM has just shown up in the docket:
08/07/2009 - 894 - Letter dated July 21, 2009 from Richard Levin, Esq. to the Honorable Kevin Gross Filed by Cravath, Swaine & Moore LLP. (TAS) (Entered: 08/10/2009)

08/09/2009 893 BNC Certificate of Mailing. (related document(s) 892 ) Service Date 08/09/2009. (Admin.) (Entered: 08/10/2009)

This is the famous letter referenced by the judge in his responsive order, where IBM tells the judge all the difficulties it was having with SCO and discovery. In it IBM tells the judge that SCO agreed that there should be no mini-trial of the external SCO litigations in bankruptcy hearing. But you know how well they stuck to that. Not so much. And interestingly, there is a list of witnesses. And when you read the list, ask yourself, was it factually true what SCO's lawyer said at the hearing that their witnesses cut and ran off when they were subpoenaed? I see only one name that didn't show up, when I compare the two lists, William Broderick.

At the hearing, Spector said this:
SPECTOR: ... We had other witnesses. They didn't show up. I won't even go into the side story about that. I got subpoenas and they disappeared. And so things had to change.
He is the master of whine. But was that true? Witnesses?

The list of witnesses in the IBM letter, as of the July 21st letter are the following six: Darl McBride, Ryan Tibbitts, Willaim Broderick, John Hunsaker, Ken Neilson, and Rene Beltran. Perhaps Mr. Spector means these folks who were subpoenaed by IBM? Rene Beltran is on the list, but he didn't run. IBM had also subpoenaed the following: Space and Naval Warfare Systems Center Norfolk and Chad Kemp. But I don't think they were SCO witnesses, but rather rebuttal witnesses if SCO called David Dickerson, the CACI contractor who had said how the military can't live without OpenServer. He was not subpoenaed, but SCO didn't list him as a witness either. The only other subpoena we know about is the one to unXis, and the newly surfaced letter indicates that it was IBM that called Norris to the hearing.

So where are all the witnesses that ran away after getting a subpoena? Yoo hoo. Mr. Broderick. Judge Kevin Gross ordered that both Ryan Tibbitts and William Broderick had to submit to depositions. And I see no mention of him at the hearing. So, by my simple calculation, he seems to be the missing link, if there actually is any truth in what Mr. Spector told the judge. Anyone see it differently?

Mr. Broderick is not unknown to us, of course. In SCO's Reponse to the three motions to convert, SCO lists him in a long narrative about how the appeal is so sure to go their righteous way because of the "strength" of SCO's claims:

Messrs. Frankenberg, Chatlos, Thompson, Mattingly, Mohan, Wilt, Michels, and Sabbath, and Ms. Madsen all testified that Article 4.16(b) was not intended to apply to Software and Sublicensing Agreements.80 William Broderick and John Maciaszek, executives in Novell's UNIX licensing group, specifically testified that Novell used the term "SVRX Licenses" to refer to other agreements that Novell and AT&T used in licensing individual SVRX products under the terms of the Software and Sublicensing Agreements.
Interesting that he didn't show up at the hearing, but couldn't it just be that he had nothing to say after the judge accepted IBM's suggestion, which IBM said SCO agreed to, that there should be no testimony about the alleged "strength" of SCO's claims in bankruptcy court?

Logical. In which case, now how much truth is left?

We can't know for sure, as there could be other witnesses that SCO had in mind that never reached paper, but it looks very odd on its face to me, I must say.

Well, in the heat of a hearing, especially one as long and significant as this one, people can misspeak. So let's be charitable. Then an alternative understanding of his words might be that Mr. Broderick, after his deposition, decided he'd prefer not to show up after all, all things considered. Personally, I doubt that. He wasn't afraid to testify at the Novell trial, after all. So perhaps another interpretation might be that Mr. Spector wanted to paint IBM as a bully, and he saw an opportunity, even though it wasn't precisely true. Did IBM know it wasn't so? Of course.

Ryan Tibbitts showed up, despite being deposed. Here's a sample of the quality of his testimony, from the audio purchased from the court. IBM's David Marriott asked him about his declaration, and asks him if it's correct that Tibbitts describes SCO's claims against IBM, but not the counterclaims, and Tibbitts says it is correct. That is what he did. But, he is asked, doesn't IBM have a number of counterclaims? Tibbitts' answer:

Well, I know at one point they had a number of counterclaims and they dropped many of those. And I don't know if they have many claims left, or one or two, sorry.
Sorry, indeed. Marriott of course pointed out that when describing the case to the court, presumably in an effort to demonstrate the alleged potency of SCO's claims, Tibbitts neglected to mention the counterclaims at all, which number six. Friends, believe it or not, SCOfolk at the hearing tried to tell the judge that IBM's counterclaims would result in no damages at all, or maybe just attorneys' fees. Here's what Spector tried to say:
IBM has a claim they say that you've heard testimony and it's been valued by their own people at zero. They don't have -- all it is is an attorney's fees claim is all it is.
Can you believe it? Of course, Mr. Marriott leaped to his feet:
MARRIOTT: Your Honor, I would object to that characterization of the value of the claim by their own people. That's absolutely untrue, and it indicates there's no evidence in the record, but have their own people, whatever that means value the plan.


SPECTOR: I thought there was evidence about an expert report saying there were no damages except for the attorney's fees.

MARRIOTT: And expert report in which Mr. Tibbitts said he didn't really have a great recollection about what it said. That's not the same thing as testimony as to what it says. And I'm happy to make a proffer as to what it says if and when the Court wishes to hear that.

SPECTOR: Well that's why I was ... I thought there was something in the record about it. I'm trying not to go out of the record.

JUDGE GROSS: I don't think there was anything. I know there's nothing in the record on that issue.

So first Tibbitts gives his interpretation, and you just saw his "interpretation" of the number of IBM's counterclaims, and then Spector tries to use it in summation as if it were something IBM's own side had acknowledged. Marriott, as you see, was not afraid to call a spade a spade. "That's absolutely untrue." And he makes an offer to introduce a proffer, showing the court what the expert report really says, as opposed to the Tibbitts version of what he recollects, or says he recollects, and offer which is not, I notice, accepted. Because it's "absolutely untrue" that there are no damages. The Lanham Act damages alone plus the GPL violations... well, it's potentially massive, I'd say.

This gives you a taste of the day's testimony from those who did show up.

Here's a general question I'll throw out there. Is it actually winning, if the only way to win in a court of law is to say things that are absolutely untrue?

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