IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
-----------------------------
)
SCO GROUP, INC., )
)
Plaintiff/Counterclaim-Defendant,)
)
-vs- ) 2:03-CV-294 DAK
)
INTERNATIONAL BUSINESS MACHINES, )
CORPORATION, )
)
Defendant/Counterclaim-Plaintiff.)
)
BEFORE THE HONORABLE BROOKE C. WELLS
DATE: APRIL 14, 2006
REPORTER'S TRANSCRIPT OF PROCEEDINGS
ARGUMENT ON MOTION
Reporter: REBECCA JANKE, CSR, RMR
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A P P E A R A N C E S
FOR PLAINTIFF SCO: HATCH, JAMES & DODGE
BY: BRENT O. HATCH, ESQ.
10 WEST BROADWAY, SUITE 400
SALT LAKE CITY, UTAH 84101
BOIES, SCHILLER & FLEXNER
BY: STUART H. SINGER, ESQ.
DANIEL P. FILOR, ESQ.
333 MAIN STREET
ARMONK, NEW YORK 10504
FOR DEFENDANT IBM: SNELL & WILMER
BY: AMY F. SORENSON
15 WEST SOUTH TEMPLE, SUITE 1200
SALT LAKE CITY, UTAH 84101
CRAVATH, SWAINE & MOORE
BY: DAVID R. MARRIOTT, ESQ.
MICHAEL P. BURKE, ESQ.
WORLDWIDE PLAZA
825 EIGHTH AVENUE
NEW YORK, NEW YORK 10019
2
APRIL 14, 2006 SALT LAKE CITY, UTAH
P R O C E E D I N G S
* * *
THE COURT: Good morning, ladies and gentlemen.
MR. HATCH: Good morning, Your Honor.
MR. SINGER: Good morning, Your Honor.
THE COURT: We are here in SCO vs. IBM And I
have reviewed your submissions. We're here on IBM's
motion.
And, counsel, I see some new faces, so perhaps I
could ask counsel to make their appearances.
MR. SINGER: Good morning, Your Honor. Stewart
Singer from Boies, Schiller & Flexner on behalf of SCO
Group. With me Brent Hatch and Dan Filor.
MR. MARRIOTT: Good morning, Your Honor. David
Marriott for IBM. With me, Mike Burke and my associate Amy
Sorenson.
THE COURT: Okay. Mr. Shaughnessy is not going
to be here?
MR. MARRIOTT: Mr. Shaughnessy couldn't be talked
out of going to Costa Rica, Your Honor.
THE COURT: Well, Mr. Marriott, do you want to
proceed?
MR. MARRIOTT: I do, Your Honor. Thank you.
There is at least, I think, one preliminary question, Your
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Honor, which is whether the Court will be considering or
not considering the proposed declaration of plaintiffs,
what I consider a surrebuttal declaration. And the Court's
direction on that perhaps might be helpful at the outset.
THE COURT: Well, there obviously is some concern
about it because it was not raised until this point in
time. I understand that SCO may have a response and be
arguing that IBM should have included its experts at,
maybe, in its original motion. I'd like to hear it. I
would like to hear some argument on that.
MR. MARRIOTT: Would you like to hear argument
with respect to whether it should be permitted, Your Honor,
or on the merits?
THE COURT: Of the motion?
MR. MARRIOTT: Yes.
THE COURT: I think that we need to hear it --
MR. MARRIOTT: Well, let me start with --
THE COURT: -- on both.
MR. MARRIOTT: The motion is actually SCO's
motion, then, Your Honor, so I think I should yield the
podium to SCO with respect to the motion to receive the
declaration of their proposed expert.
THE COURT: All right. If you want to start
there, that's fine.
MR. SINGER: Good morning, Your Honor.
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THE COURT: Good morning.
MR. SINGER: I will be very brief. IBM elected
not to file an expert declaration with their initial
motion. It could have done so, which then would have
obligated us to file a response in our responsive phase.
Instead they elected to wait until their reply brief, and
the only opportunity, then, to respond to what that expert
says is in doing exactly what we did, very quickly filing a
motion for leave to file a rebuttal declaration, which we
have submitted, at the same time, which clearly, in
fairness, should be considered. IBM argues that we should
IBM argues that we should have anticipated that they would
file an expert declaration.
On what basis can they say that we should
anticipate that they would file that in reply, when they
did not file it in their initial papers?
THE COURT: Let me ask this question, though:
Were they required to initially?
MR. SINGER: I wouldn't think they were required
to anymore than we would have been required to. I think we
can make this argument with or without the aid of
supporting declarations. They apparently decided that they
needed to do so in their reply papers, and, at that time,
they filed Professor Davis' declaration. My argument is
simply that if expert testimony is to be considered, it's
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only fair that both sides have an opportunity to present
that testimony. And here they are the moving party. They
had the obligation, as part of being the moving party, to
put forth what they thought was needed in their case.
In fact, a number of Federal Courts, as noted in
our reply papers, have criticized parties that wait until a
reply motion to add an expert's testimony and if that was
the intent, then, to deprive the other side of a chance of
putting on its own expert testimony.
Mr. Rockein's testimony directly relates to what
Mr. Davis said in his declaration, and we submit it is
perfectly proper.
THE COURT: Mr. Marriott?
MR. MARRIOTT: Thank you, Your Honor. We
received the Rockein declaration, Your Honor, less than 24
hours ago, despite what the certificate of service
suggests, and I have no reason why that's the case, except
that that's when we received it. We objected to the
submission of the declaration without even having read the
document because, as I say, we hadn't received it until
less than 24 hours ago.
The only reason that IBM submitted a declaration
from Professor Davis in connection with IBM's reply papers
is that SCO said something in its opposition papers which
we think simply isn't true. In IBM's opening papers, Your
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Honor, we said that SCO had failed to identify versions,
files and lines with respect to certain operating systems.
In their opposition papers SCO shot back and sort of, in
broad, general language, said they fully complied,
suggesting that IBM's assertions in its opening papers were
wrong.
Professor Davis does nothing in his declaration
except set out a chart, Your Honor, which shows you, based
upon review of the documents, where versions, files and
lines are identified or not identified. The declaration
that's proposed from Mr. Rockein is a declaration that
doesn't even meet directly the assertions of Professor
Davis. They pass in the night. Mr. Rockein is addressing
a different set of questions.
On the highest level, he says, of course, SCO has
provided specificity with respect to the final disclosures,
but with respect to the specific questions that Professor
Davis answered, which were responses to what was said in
the opposition brief of the SCO Group, those two
declarations simply don't meet. And I would submit that
the declaration is little more than an effort to get the
last word in an untimely way, and it not ought not to be
allowed.
If SCO thought that it needed a declaration to
refute the assertions made in our opening brief, for which
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I think no declaration is required, Mr. Davis -- Dr. Davis
says little other, Judge, than: "There is not a version
there. There is not a file there. There is not a line
there."
Your Honor, if Your Honor wished to take the time
to plow through the SCO final disclosures, could reach the
very same conclusion. So, the idea that they weren't on
notice at the time of their opposition as to IBM's
assertion, and if they wanted to submit a declaration of
support thereof at that time, they full well could have
done that. To give us 24 hours' notice to respond to a
declaration that is, itself, improper in any case, is, I
think, simply not necessary.
Mr. Singer suggests, Judge, that the cases he
cites in his papers somehow stand for the proposition that
what IBM has done here is incorrect, and I respectfully
don't think that's right. I think what those cases say is
that it is not proper to raise a new issue in a reply
brief. IBM's reply brief doesn't raise any new issues. It
simply responds to the issue raised by SCO in its
opposition papers, that they in fact provided the requisite
specifications.
THE COURT: Then how does it hurt you,
Mr. Marriott, the existence of it, the acceptance of it, if
you say that it really doesn't address your expert's
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declaration anyway?
MR. MARRIOTT: That's an excellent question, Your
Honor. I don't think it hurts us in any way. I would ask
only that, if Your Honor is to allow the submission of
Mr. Rockein's report, that we be given an opportunity to
respond to it by way of a declaration from Professor Davis.
Other than that, it doesn't hurt us in the slightest way,
Judge.
It is, however, an attempt to change the issues
and to raise new issues, really a justification of a
failure to comply in a surrebuttal declaration that I think
is inappropriate. So, as long as we have an opportunity to
respond, Your Honor, I don't think it hurts us in any way.
THE COURT: All right.
Mr. Silver, let me ask you this question: Why --
well, I guess the question goes to Mr. Marriott first.
Mr. Marriott, why did you not submit an expert
report in your initial submission?
MR. MARRIOTT: Sure, Your Honor. The answer is
very simple. The SCO -- the premise of this motion is that
SCO has failed to provide the specificity required by Your
Honor's orders, which were very particular as to what was
to be provided. We asserted, because I think it's just
simply true, in our opening papers that the specificity
wasn't there, and references made to the documents
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themselves, which, as I say, of course the Court can look
at and divine for itself whether or not there is a version,
file and line of code there.
We didn't submit an expert report in the opening
papers because it wasn't required. It was only when we had
a denial of what we had asserted that we didn't want the
Court left with a situation of: Gee, he says this and she
says that. What are we supposed to make of this?
It was only for that reason, Your Honor, that we
submitted it. It was purely as a response to what was said
in the opposition papers of SCO.
THE COURT: And, Mr. Silver, the next question,
and to you, is: Why did you not respond with this in your
reply?
MR. SINGER: First of all, Your Honor, I'm Stuart
Singer. We have a lawyer on our case, Bob Silver.
THE COURT: I'm sorry. Excuse me. I do get
those confused. I'm sorry.
MR. SINGER: Your Honor, the issue which is
framed in the initial papers is, is our description of
technology, the misuse of the material, made with
specificity? If they were going use expert testimony on
that, we would have responded in our opposition paper.
They did not. Our response to that was that we have
provided specificity, as I'm sure the Court will hear about
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when we turn to the merits of that motion.
For them -- for IBM to say they didn't expect an
issue on whether or not we complied with the order, I mean,
I don't know what they would have anticipated. That we
would not dispute their motion? Clearly we dispute their
motion. The issue is not whether or not we cite line,
version, file for the methods and concepts, and nor is
Professor Davis' declaration limited to observing that
fact.
The question is whether or not the parties have
complied with the order of providing specificity, and
Mr. Rockein's declaration goes directly to that. It
contradicts Mr. Davis -- or Professor Davis. Professor
Davis says it's not specific enough for us, and Mr. Rockein
explains that, for methods and concepts, this is plenty
specific and quotes examples, deals with the example they
raised. So, it was only when we saw the Davis declaration,
that they were going to rely on expert testimony at the
reply stage, that, at that time, we apprehended the need to
file a responsive declaration.
THE COURT: Upon what rule or case did you rely
that allows you to raise this in a surrebuttal fashion?
MR. SINGER: Well, we don't believe it's a
surrebuttal. We haven't made an argument. We think that
the Court had -- if a reply declaration is being raised,
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then that is something you do in reply and that the Court
has discretion, just like in accepting any papers, to grant
leave to accept the declaration from our side in response
to that. It would be fundamentally unfair, we would
submit, for the Court to consider only one side's expert
testimony and not consider the other's when the first side
raises it in reply.
It would be one thing if they had raised it in
their initial brief and we didn't say anything, and then,
later, after all the briefing was done, we said: "Judge,
we want you to consider this."
But that's not what's happened here.
THE COURT: Thank you, Mr. Singer.
Anything in response, Mr. Marriott?
MR. MARRIOTT: Well, Your Honor, they don't cite
any cases or any rules in support of the application, and I
think it is certainly not one contemplated by the rules.
What I would say, again, Your Honor, is that I'm not
concerned in the least about the content of the
declaration. However, we are the movant, and I think, in
fairness, if it's to be considered, we ought to have an
opportunity to respond, which we can do promptly after the
hearing.
If it's not to be considered, then I don't think
you need to consider much of what Professor Davis has to
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say either, Your Honor. I think either -- they aren't
required, either of them, because they said what they said,
and the orders say what they say at the end of the day. If
you're going to consider it, we just ask that you be --
that Professor Davis be given an opportunity to briefly
respond.
THE COURT: All right. What I am going to allow
to be submitted -- and, Mr. Marriott, I will allow you to
submit a supplemental or a responsive declaration on behalf
of Dr. Davis. How long will it take to do that?
MR. MARRIOTT: I'll need to check with him, Your
Honor. Is ten days agreeable to the Court?
THE COURT: Ten days would be fine. Now, what
effect does that have on the remainder of today's motion?
MR. MARRIOTT: In my mind, it has none, Your
Honor, because, as I say, I don't think the declaration,
taken as true, has any bearing on this motion.
THE COURT: All right.
MR. MARRIOTT: And I'll explain why.
THE COURT: And, Mr. Singer, I'm going to allow
them to respond to that, but that's where it's going to be
cut off.
MR. SINGER: I understand the Court's ruling,
Your Honor. And the only thing I would ask is -- we
haven't seen what's going to be said, and if there's new
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issues raised, we would hope the Court would entertain, at
that time --
THE COURT: Well, I'm assuming that they will
limit it, in proper surrebuttal fashion, to those issues
raised or addressed in your submission. I don't anticipate
that that will be an issue, and so, therefore, I'm going to
leave it as stated. They will respond, and that will be
it.
MR. SINGER: We understand, Your Honor. Thank
you.
MR. MARRIOTT: Thank you.
THE COURT: All right. Now let's address IBM's
motion at this time.
MR. MARRIOTT: Your Honor, at issue on this
motion is whether SCO complied with the Court's -- with the
Court's orders and IBM's requests specifically to identify
the allegedly misused material. And while we don't believe
that SCO has provided what it was required to provide with
respect to any of the 294 items at issue, it's disclosures
are, respectfully, especially egregious with respect to 198
of them. And those are the items of the disclosures that
are at issue on this motion and the ones I would like to
address today, the ones as to which we do not believe, in
fairness, that SCO should and can be allowed to proceed.
With Your Honor's permission, I would like to
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make, if I may, four points in support of IBM's motion.
The first, Your Honor, is that the Court repeatedly ordered
SCO to provide specificity with respect to SCO's final
disclosures; version, file and line information.
Point 2. Your Honor, SCO's disclosures lack the
required specificity. Point 3. The shortcomings in these
198 disclosures make it impossible, as a practical matter,
for IBM fully and fairly to defend itself. And then,
fourth, Your Honor, and finally, the only appropriate
remedy, I respectfully submit, is for SCO not to be allowed
to proceed with respect to these 198 items. It ought not
to be allowed to adduce evidence in support of them.
Now, for Your Honor's convenience and with your
permission, I would like to hand up, if I may, a book which
will have some documents and exhibits which I hope will
help with my presentation.
THE COURT: You may.
MR. MARRIOTT: The chronology of events, Judge,
relating to this motion is long. Since it is set out in
IBM's papers and including Addendum A to IBM's reply
papers, which is in this book at tab 1, I don't intend to
repeat it here except I would like to say this just briefly
by way of background. And I would refer you, please, Your
Honor, to tab 2 of the book. SCO contends, as I think you
know, Your Honor, that IBM dumped UNIX, System V, AIX and
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Dynix source code into Linux.
That's the material that IBM is alleged to have,
in one fashion or another, misused. And those are
represented at tab 2 of our book. Those are the materials,
Your Honor, as to which IBM has been requesting version,
file and line information for just about three years. And,
as you can see in the chart, Your Honor, we've been
requesting that information because each of these products
consists of a number of different versions, a number of
different -- many, many files and many more lines of code.
So, for example, UNIX System V consists of at
least 11 versions which SCO is believed to have produced.
Those versions are comprised of 112 thousand files, at
least, and 23-plus million lines of code. The same is true
with respect to AIX. IBM has produced at least nine
versions. They represent more than a million files of code
and 1.2 billion lines of code. Dynix, Your Honor, consists
of at least 37 versions of a base operating system, more
than 470 thousand files and more than 156 million lines of
code. Linux, in one form or another, has 500-and-some
versions. It consists of 3-plus million files, and lines
in excess of 1 billion.
We're talking about a lot of code, Your Honor.
More than 2 billion lines of code is implicated by SCO's
claims in this case. IBM has repeatedly asked that SCO
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provide version, file and line information with respect to
the materials that IBM is alleged to have misused, these
operating systems: System V, AIX, Dynix and Linux. A
selection, Your Honor, of IBM's requests appears at tab 3
of the binder, going back to the second month the case
started, April, 2003, when IBM began asking SCO to tell us,
with specificity, what it is this case was about. And,
Your Honor, if you wish, of course, to look for yourself,
the backup is provided.
That brings me, Your Honor, to the first of my
points, which is that Your Honor has repeatedly ordered SCO
to disclose the allegedly misused material with
specificity. In response to IBM's discovery requests, Your
Honor has entered no less than two orders, and Judge
Kimball a third, that matter to today's motion. And, by
those orders, Your Honor and Judge Kimball clearly and, I
would submit, consistently required SCO to identify what I
call the coordinates of the allegedly misused material, the
versions, the files and the lines.
The Court's orders, Your Honor, generally speak
in terms of files and lines, as opposed to versions, but
it's impossible to talk about lines and files with also not
having a sense of versions. It would be like referring to
a line of a book without mentioning what the book is that's
being referred to. Never, Your Honor, in the course of
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this case, has SCO made a request for relief from any of
the orders that I'd like to review with Your Honor. Never
has it sought clarification.
And that is, I would submit, because those orders
are crystal clear. It made arguments in opposition to the
orders, what they required, and it did not prevail in those
arguments. And Your Honor entered the orders that you
entered. And I would like to refer you, if I may, now, to
tab 4 of the book. Here, Your Honor, we've set out the
relevant text of the three orders that mattered, and you
will see that indicated along the left column: The
12/12/03 order, the 3/3/04 order, and the 7/1/05 order of
Judge Kimball. Along the top we've indicated the four
operating systems that are at issue.
I'd like to direct you, if I may, Your Honor, to
the 12/12/03 order. Not long after this case was filed,
following IBM's requests for particularity, Your Honor
entered an order in the case requiring SCO, quote, "to
identify and state with specificity with the source codes
that SCO is claiming formed the basis of their action
against IBM."
Those source codes, Judge, are System V, AIX,
Dynix and Linux. And they were ordered to disclose, with
specificity, that which they contend was misused. In the
same order Your Honor said, quote, "To respond --" "SCO is
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required to," quote, "respond fully and in detail to
interrogatory numbers 1 through 9 as stated in IBM's first
set of interrogatories."
What do IBM's first set of interrogatories say?
I've included just three of them here, Your Honor, for
purposes of illustration. Interrogatory number 1 said, and
I quote, with appropriate ellipses in the text here:
"Please identify, with specificity, by product, file and
line of code, where appropriate, all of the alleged trade
secrets and confidential or proprietary information that
plaintiff alleges or contends IBM misappropriated or
misused."
They were ordered, Your Honor, to respond as
stated in IBM's request. Interrogatory 3: "Please
describe in detail all places or locations,"
parenthetically, "including the operating systems, where
the alleged trade secret or confidential or proprietary
information may be found or accessed."
Interrogatory 4: "Please describe in detail,
with respect to any code or method plaintiff alleges or
contends that IBM misappropriated or misused, the location
of each portion of such code or method in any product, such
as AIX, in Linux in Open Source or in the public domain."
The only way, Your Honor, to tell us where in the
products the material lies we are alleged to have misused,
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whether it be code or concepts, is to tell us the file and
the lines of code. Your Honor went on in the same order to
say SCO was required, quote, "to fully respond in detail to
interrogatory numbers 12 and 13 --" again -- "as stated in
IBM's second set of interrogatories."
Interrogatory 12 says. "Please identify with
specificity, by file and line of code, all source code and
other materials in Linux to which plaintiff has rights and
how the code or other material derives from UNIX."
And then, in interrogatory 13: "Please describe
in detail how IBM is alleged to have infringed plaintiff's
rights."
It could not be more clear. Four and five times
the same thing, Your Honor, has been requested and four and
five times ordered. Following that order, SCO, Your Honor,
nevertheless it did not provide the requested information.
And we set that out in the motions that were made that
preceded the next order that the Court entered. And Your
Honor entered an order on 3/3/04 wherein you ordered SCO to
do as you ordered it to do previously.
And if you look at the blue text, Your Honor, in
the middle, you say in paragraph 2 of the order: "As
previously ordered, SCO is required to --" and then you go
on to explain what SCO is required to do. We had pointed
out, Your Honor, that SCO had not provided version, file
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and line information with respect to each of the operating
systems. Again, the allegation is we took code from AIX
and Dynix and we dumped it into Linux. And that's a
problem, they contend, because AIX and the Dynix code is a
derivative or modification of System V.
So we said, "All right. Where are the versions
and files and lines here? Where are they here? And where
they here? We didn't get it. We came back to Your Honor,
and your Honor entered the following order. We start in
the middle with respect to the AIX and Dynix, which really,
I think, is the crux of their case: "As previously
ordered, SCO is to provide and identify all specific lines
of code that IBM is alleged to have contributed to Linux
from either AIX or Dynix."
As to System V, Your Honor, it says: "SCO is to
provide and identify all specific lines of code from UNIX
System V from which IBM's contributions, whether they be
code or methods or anything else from AIX or Dynix are
alleged to be derived."
And, finally, paragraph 4 on the far right: "SCO
is to provide and identify, with specificity, all lines of
code in Linux that it claims rights to."
Again, Your Honor, it could not be more clear
they were required to provide version, file and line with
respect to that which we are said to have misused. Judge
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Kimball, in his order of 7/1/05, simply reiterates that SCO
is required to specify by certain deadlines, once and for
all, the allegedly misused material.
I would submit, Your Honor, that the orders of
this Court could not be more clear as to what SCO was
required to do. And that brings me, if I may, Your Honor,
to my second point, which is that the final disclosures
lack the requisite specificity. The indisputable fact,
Your Honor -- and I submit it is indisputable -- is that
SCO has not provided version, file and line information
with respect to 189 -- 198 items at issue here as to each
of these operating systems.
It is not there. Mr. Rockein doesn't tell you
it's there. SCO's papers don't tell you it's there. It
absolutely is not there. That's what they were required to
do. They didn't do it. And, as a result, Your Honor, they
have not complied with this Court's orders. It's as simple
as that.
By way, Your Honor, of -- and let me refer you,
if I may, to tab 5. Tab 5 is Exhibit -- or Addendum B,
rather, to IBM's reply papers and an addendum to Dr. Davis'
report. What we have done here, Your Honor, is, along the
left column, indicate the items that are challenged on this
motion. There are 198 of them. We have then taken each of
the operating systems and displayed them, System V, AIX,
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Dynix and Linux. And we have a "V," "F" or "L." "V" for
version. "F" for file, and "L" for line. And we have put,
Your Honor, an "X" in that box where SCO has provided, with
respect to that disclosure, a version of System V, a file
of System V or a line of System V.
As this chart demonstrates, Your Honor, with
respect to System V, SCO identifies a single version of
System V with respect to the entirety of these 198 items.
One of the items has a version of System V. With respect
to files of System V, one, Your Honor. One of the items
identifies a file of System V. Not a single one of the 198
items identifies lines of code of System V with respect to
it, not one of them.
The same, Your Honor, is essentially true with
respect to AIX and Dynix. A single one of these items
references a version of AIX. None of them references a
version of AIX. None of them references lines of AIX.
With respect to Dynix, roughly two of them, by my count,
identify versions of Dynix. Roughly three of them identify
files of Dynix. Not a single one of them, Your Honor,
identifies lines of Dynix.
Compare that, Judge, to your orders, your orders,
plural, which could not have been more clear about what was
required with respect to each of these operating systems
and the allegedly misused material.
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Finally, Your Honor with respect to Linux. There
are more versions of Linux identified here. Roughly 27 of
the items offer a version. There are many more files
identified in this category from Linux. However, only
three of the items, Your Honor, offer lines of Linux code
as described in this chart. So, Judge, respectfully, each
one of these three categories: System V, AIX or Dynix and
Linux required all three coordinates for IBM to be able, as
we thought was required, as your orders made clear, to
assess SCO's claims. As to these 198 items, as opposed to
the ones we haven't moved on, that information simply isn't
here as it was required to be.
And for that reason, Your Honor, we submit that
SCO has not complied, plainly, with the Court's orders.
Now, in its opposition papers, Your Honor, to be sure, SCO
says in broad strokes that it has complied, that it has
provided specificity. What it doesn't say is that it has
provided this information. What it does is redefine
specificity in a way to its liking. It lists the things
that it's provided, and it says that lots of stuff has been
provided here, and we have certainly met our obligations.
We have gone above and beyond.
Respectfully, Your Honor, the prerogative wasn't
SCO's to redefine what it meant to provide the specificity
that the Court's orders required. They submitted a
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declaration from Mr. Rockein who, apparently, according to
the declaration, played what he described is the largest
role in compiling SCO's final disclosures. As I said at
the outset, we have had this for less -- now probably
slightly more than 24, but we have had this for about 24
hours, Your Honor, and we will respond in due course,
within the scope given by way of a declaration from
Professor Davis we opposed in principle, when we hadn't
seen it.
Having read this declaration, Your Honor, as I
said at the outset, it is absolutely no impediment to the
entry of the motion we seek here, a disposition that the
specificity required wasn't provided and SCO therefore
shouldn't be allowed to proceed with respect to these
claims. Mr. Rockein says in his declaration that he
strongly disagrees with Professor Davis, that in fact a lot
of specificity has been provided. And he reaches
conclusions to that effect.
The only reason, Your Honor, when you look
carefully at Mr. -- when you look carefully at
Mr. Rockein's declaration, the only reason that he reaches
a different conclusion from Professor Davis is because he
answered different questions. Mr. Rockein's declaration
does not say, "Oh, in fact IBM has missed it. Here are all
the versions. Here are all the files. Here are all the
25
lines of System V." He doesn't say, "Here are all the
versions. Here are all the files and here are the lines
for UNIX or for AIX or for Dynix."
What Mr. Rockein basically says, Judge, is that a
lot of work has gone into this and a lot of information has
been provided. We have summarized, he says, the alleged
disclosure. We've pointed IBM to a bunch of documents,
which they call disclosures -- e-mails, essentially. We
have given a list of the names of people we say were
involved in this, and we have pointed IBM to some source
code.
Well, Your Honor, Professor Davis doesn't say,
and IBM hasn't argued, that SCO didn't provide some
e-mails, point to some source code, list some people and
generally describe what it is they contend is at issue.
That isn't, however, the issue, Your Honor. The issue is
whether they have met the standard of specificity that was
set out in this Court's orders, that was requested for
almost three years now in IBM's discovery requests. That
information hasn't been provided, and it's in that respect,
respectfully, that Mr. Rockein's declaration supports the
relief that IBM seeks here, by silence.
It does not dispute because it can't dispute that
the information that we have requested was not provided.
And for that reason, Your Honor, I respectfully submit that
26
SCO simply hasn't complied. And lest Your Honor think that
we're seeking here to apply some different standard to SCO
than has ever been applied to IBM, I remind you that early
in the case IBM moved for summary judgment on one of its
counterclaims for copyright infringement. In support of
that motion, with no order from the Court, we submitted
line-for-line comparisons of 783 thousand lines of code,
showing exactly what they copied and exactly where they
copied it from.
We've been asking from the beginning for nothing
other, Your Honor, from them, than we gave them voluntarily
without any order of the Court. That's what we don't have,
and it's for that reason that SCO, respectfully, has not
complied with the Court's request.
That brings me, if I may, Your Honor, to the
third point, which is, Your Honor, that the shortcomings
here in SCO disclosures make it, as a practical matter,
impossible for IBM properly to defend itself. This is not
a question of a technical, harmless foul. This is a
fundamental difficulty in our ability to properly defend
ourselves and, without that information, it is not
possible, as a practical matter, fairly to be able to do
that.
The problem, Your Honor, is that we have, as
Professor Davis describes, essentially been pointed to an
27
enormous haystack of code, to some billion lines of code,
and told to go find 198 needles which, I respectfully
submit, as Professor Davis has said in his declaration,
are, in their appearance, because of the description that
has been given, without versions, files and line
information, literally, in their appearance, different from
all of the other hay. We've got an enormous haystack in
which we haven't been shown, with any particularity, what
it is we are supposed to have done.
I want to illustrate for Your Honor the prejudice
that flows out of the approach SCO has taken here, and for
that purpose it's useful to revisit their allegations.
Remember the allegation. We took AIX and Dynix code. We
dumped it into Linux. We took System V code, and we
improperly put it there, infringing the System V code by
using it.
SCO has basically two claims, Your Honor, that
represent the thrust of their case, breach of contract
claims and copyright claims. We supposedly breached
contracts by dumping this code, they say, into Linux, and
we supposedly infringed their alleged copyrights by using
Linux which contains, apparently, they say, the allegedly
misused information. Each of those causes of action, Your
Honor, requires an extensive inquiry into the particulars
of what SCO alleges. And I want to refer you, if I may,
28
Your Honor, to tab 10 in the book.
Here what we have done is simply set out the
basic copyright principles which concern principles that
really govern the prosecution of a copyright case and a
contract case, and, you know, they are: Does IBM have a
license? Who wrote this code? Is the stuff that's
supposedly infringed in Linux, is it even protectable by
copyright laws? Is it merely an idea or a method or a
process? Is it dictated by externalities, as the Tenth
Circuit says in the Gates Rubber case, like programming
practices? Is it in the public domain? Does IBM have a
license to it? When did they get the license to it?
Is it even in Linux? Did it get accepted in the patch by
which, perhaps, it was offered? Did it get accepted in the
patch in which it was offered? If it's there, is it even
important?
I mean, the basic allegation, Your Honor, is that
IBM dumped so much material into Linux that we made it a
super operating system that killed SCO's UNIX business and
that, therefore, they are entitled to billions of dollars
of damages. Surely they don't contend that we are not
entitled to understand exactly what it was that was
supposed to be put in there and determine and evaluate
whether that even matters to Linux, whether anyone is even
using Linux because of that and whether, even if they are
29
using it because of that, it has any bearing whatever on
the competition between Linux, if any, and their UNIX
products.
Those are the kinds of questions, Your Honor,
that we need to be able to answer. Those are the kinds of
questions that are practically impossible to answer without
having the coordinates that are missing here. And I want
to refer you, if I may, to tab 11 of this book. All
right. This, Your Honor, is one of the code comparisons
which SCO provided with its final disclosures. We have not
challenged this code comparison, Your Honor. It doesn't --
SCO has not provided, with respect to this, all the
information they were required to provide, and we can deal
with that at summary judgment. But they have provided the
coordinates.
We know that they are contending that there is a
substantial similarity between a certain version and a
certain file and a certain line in System V, which is on
the left, and a certain version and a certain file and a
certain line in Linux. You can see the red highlighted
language down there, Your Honor. There appear to be 14 or
so lines of codes which they have identified. With that in
hand, Your Honor, we can undertake to do the investigation
contemplated by the cases that you have to do in a case of
this kind.
30
Did IBM actually contribute that? When did we do
it? How did we do it? Is it actually even in -- is it
actually something that even, in any way, helps or hurts
Linux? Was it publicly -- was it publicly disclosed before
IBM supposedly did it in some standard? Did some third
party disclose it, for which IBM couldn't possibly be
responsible? There are a whole series of questions which
are laid out at tab 10, Your Honor, that we would want to
ask based on having this information.
Now, as to this particular item, it has been
provided with the detail, here, that we've asked, and we
have undertaken our inquiry with respect to it. Again, it
isn't in the motion. If you look at the blue sheet, Your
Honor, behind that information there is an excerpt from
Intel's 386 family binary compatibility specification.
It's a public specification with a copyright date of 1990
-- 1989, I believe. If you look at the second page, you
will see exactly that code, exactly that code which
supposedly IBM has improperly put into Linux, in an Intel
specification since 1989, long before any allegations of
misuse by IBM here.
When we are told exactly what it is we did, Your
Honor, we can ask all the right questions. We can do all
the right investigation, and we can properly defend
ourselves. When we are told, nebulously, that we did bad
31
things with respect to some generally defined technology,
we are in no position to undertake that kind of
investigation. That's the only kind of investigation --
that's the kind of investigation we believe we have a right
to do. That's why we asked for version, file and line
information from the beginning of the case.
And without that information, as SCO well knows,
it is an entirely different matter -- how are we even to
begin the exercise of answering all the questions that we
are seeking to answer without knowing particularly what it
is we are said, Your Honor, to have done?
Mr. Rockein suggests in his declaration that the
specificity provided to IBM is more than adequate. It
sounds like he's almost done with his expert report. He's
ready to submit it by, presumably, May 9th when I believe
it's SCO's obligation to submit, and therefore IBM should
have no problem figuring out precisely what it is SCO
contends.
Your Honor, first of all, Mr. Rockein is not
qualified to speak to what IBM needs to do to defend
itself. The cases make quite clear the inquiry that is
required. Moreover, Your Honor, Mr. Rockein is the author
it sounds like, of a very significant part of these final
disclosures. He assembled them. He says he played the
largest role in it, so he has a different perspective. His
32
agenda, Your Honor, and SCO's agenda is very different from
IBM's agenda.
It isn't -- it isn't their concern to demonstrate
that SCO doesn't own the code. It isn't their concern to
demonstrate that they don't have a license to the code. It
isn't their concern to demonstrate it's not copyrightable
as a matter of law. It isn't their concern to demonstrate
that it has been in the public domain for decades. Those
are the kinds of questions we have to answer. Those are
the kinds of questions we can't answer in view of what lack
of specificity we have. That's my third point, Your Honor.
Fourth, and finally, the only appropriate remedy,
here, Judge, I respectfully submit, is to limit these
claims, by which I mean an order precluding them from
offering evidence in support of them.
THE COURT: Why is it more appropriate to ask for
this remedy than to address this in a partial summary
judgment?
MR. MARRIOTT: That's an excellent question, Your
Honor. It's more appropriate because there are many
arguments that we would make at summary judgment
potentially. We are in no position to even begin to
prepare all of the arguments that we'd like to make at
summary judgment because we don't have the information
sufficient to do that. I mean, without knowing exactly
33
what we're moving against, we're going to have an awful lot
of difficulty, Judge, showing where something that hasn't
been defined is found in a standard.
The reason that SCO urges Your Honor deferral of
this question to summary judgment is because dealing with
this question on summary judgment is going to be awfully
messy, and it's ordinarily the plaintiff's perspective that
things ought to look awfully messy in summary judgment
because it tends to make it hard to get questions resolved
in summary judgment. It makes it much easier to get to
trial.
Your Honor said at a hearing in this case on the
24th of February, quote: "Obviously I don't want -- what I
don't want is either side to use information that has been
withheld in support of a summary judgment motion, in
support of their case at trial. All evidence needs to be
on the table for the other party to analyze and to take a
look at."
Your Honor, it's not on the table. We aren't in
a position to take a look at it in the way that we believe
Your Honor has repeatedly directed SCO to put us in a
position to do. And we're not because we don't have the
versions and the files and the line information. Contrary
to the suggestion made by SCO, there is ample authority,
ample authority for Courts entering orders of this kind,
34
limiting the evidence that can be submitted in support of
claims that have not been particularized in a way as
required by the Court.
In summary, Your Honor. We simply don't have
that which SCO has been ordered repeatedly to provide. As
a result, we are at an extreme disadvantage in preparing
our case as to these 198 items. We will deal with the
other ones at summary Judgement. Thank you, Your Honor.
THE COURT: Thank you, Mr. Marriott.
Mr. Singer.
MR. SINGER: Your Honor, we also have a book of
material. May it please the Court. Your Honor, there are
three arguments that I am essentially going to present
which -- in the course of which will respond to what
Mr. Marriott has had to say. And it's really three
independent reasons why IBM's motion should be denied.
First, we will show that SCO has complied with
the Court's order requiring that, quote, "misused
material," close quote, be identified with, quote,
"specificity." That specificity differs, whether you're
dealing with method and concept or whether you're dealing
with a donation of code. And I'll explain that when we get
to argument number 1.
Argument number 2. There is no evidence, none,
that SCO has willfully withheld any identifying information
35
in its December submission. This is a discovery sanction
which is sought. That requires proof that we are holding
back something that we have that we are not making
available, and there is zero proof of that.
And, third, even if one were to get past the
first two issues, a decision on 198 disclosures as to
whether or not those technologies are properly in the case
cannot be made without an individualized determination as
to the adequacy of the disclosure with respect to those.
It cannot be done on simply a blanket basis. And, as the
Court's question indicates, this is really a merits issue
which goes to the question of: As described, without using
more material than the voluminous material we have
provided, have we properly stated a cause of action with
respect to these disclosures, that they are protected under
our contracts? Have they been disclosed improperly? And
has that, in turn, caused damage?
Now, turning to that first issue -- and I'm now
at tab 2 in the book -- I'd like to talk a little bit about
what the December report, in compliance with the Court's
order, provided. And I can start by saying that we decided
to go above and beyond that order, not just to describe and
identify, with specificity, those disclosures, but, in a
large part, add in and tab materials, the evidence that
relates to them, to show the actual disclosures when they
36
are made in writing, and to provide an enormous amount of
information that even goes beyond the order which simply
says identify with specificity.
Now, there are 293 instances where technologies
were misused by IBM that are identified in the submission
provided to the Court and to opposing parties. Those
identify, in almost all cases, the persons making the
disclosure. It says what the improperly disclosed code,
method or concept is. Where there is code that is
specifically --
THE COURT: Where are you reading from?
MR. SINGER: I'm not reading. I'm describing
what is in the summary of the 293 methods.
THE COURT: All right. The reason I asked that
is because -- and perhaps this is just ignorance on my
part, and I will gladly, please, and urge you to educate
me, but it seems to me that the orders emphasize lines of
code, etc., and now we're switching to technologies, method
and concept, as opposed to what was included within the
order and which I thought was specific.
MR. SINGER: Your Honor, I'm very happy to
address that because that is really the heart of this
issue. IBM's position is that if it isn't a line of code,
with specificity as to version, file and line, it doesn't
count. Well, that is not this case. If you go back to the
37
Second Amended Complaint, where we talk about code being
dumped in, we also talk about disclosure of methods related
thereto. We talk about the use of other information, and
that's in paragraphs 111, 113. It's throughout the entire
Complaint.
THE COURT: But it has never been raised in terms
of argument or response until now.
MR. SINGER: Well, Your Honor, the issues which
were raised in your earlier orders was: You have an
interrogatory. It says, "Identify all the source code that
you're going to be making claims about." Now, I agree
that, to the extent there's an issue about source code that
we are making claims about, the Court's orders say identify
that. And then, to the extent we've gotten a lot of that
source code in the last year, we have made very substantial
identifications of the disclosures that relate to source
code disclosures.
Those are the ones that they are not challenging.
Those are the ones such as where charts are shown drawing
that specifically. The others are method and concept
disclosures. Now, there is no order of this Court which
has ever held that the method and concept disclosures are
not part of this case. There is no order that says that
method and concept has to be disclosed by line, version,
file, source code, and that isn't the mode of disclosure.
38
THE COURT: No. But it has never been mentioned
before, to my recollection, although I'm more than willing
to be proved wrong, that we have ever talked about methods
and concepts. We have always been talking about source
code, line, file, version; isn't that correct?
MR. SINGER: Well, because those discovery
requests were asking about that. So, to that extent, where
you're talking about discovery requests which were asking
for it, then that makes sense. For example, if you look at
their own chart, Your Honor, with interrogatory, for
example, number 1, it talks about identify with
specificity, by product line, file, line of code where
appropriate, where appropriate.
There are two separate interrogatories that talk
about identifying, with specificity, by file and line of
code, source code, and then there's one describing, in
detail, how IBM is alleged to have infringed plaintiff's
rights. They have chosen to move on source code
interrogatories.
THE COURT: But I'm looking at my orders as well.
MR. SINGER: Yes. Your orders are to order us to
comply with their interrogatories.
THE COURT: But looking at the specific wording
on those orders. And nowhere does it talk about method and
concept.
39
MR. SINGER: But, Your Honor, the -- we have
complied with those orders by identifying, to the extent
there are lines of code which are being relied upon, and
saying that, in these cases we are talking about lines of
code either from System V or from a derivative product such
as AIX or Dynix, here they are.
But, until this last disclosure obligation, which
says to identify all the misused materials, there has not
been an obligation on SCO to identify methods and concepts
that are not related to the lines of code. Moreover, a lot
those have come out of work on the materials, depositions
and other discovery that's occurred over the last six to
nine months.
So, we have, in response to the Court's order,
which is the one which deals with these disclosures, which
says, "Define, with specificity, the misused materials,"
where those misused materials have involved code, we have
provided specificity. And those are largely the ones which
they are not moving on. And, to the extent these deal with
methods and concepts, our position is that they are
provided with the specificity the material allows.
Code was not disclosed in those cases, in many of
those cases, so code cannot be identified, but that doesn't
mean that nothing valuable, nothing that isn't protected
under our contracts, wasn't disclosed. It was provided,
40
and we provided abundant detail there. We provided over 10
thousand pages of supporting material that constitutes
those disclosures in these binders, and that's in addition
to the 450 thousand lines of source code that was misused.
Now, if we turn to tab 3, we break that down. We
indicate that approximately one-third of the disclosures
are source-code based, which are largely not challenged,
and IBM's motion concerns the other two-thirds, which are
largely method and concept disclosures.
Now, Mr. Marriott, at the beginning of his
presentation, says really all of them are deficient. And I
would point the Court to what Mr. Marriott said before the
Court on February 6, 2004, at page 6 of the transcript,
where SCO, at that time, had identified 17 files which it
says were improperly contributed.
And Mr. Marriott says, quote: "Now,
specifically, SCO identifies 17 files, parts of 17 files,
which it says were improperly contributed. With respect to
many of the lines of code in those 17 files, they properly
identified which line it is they say we took from AIX or
Dynix and where it is they say we put it in the Linux
operating system. With respect to many, the disclosure is,
I think, sufficient."
And then he wanted to argue about the ones where
he didn't think they were sufficient. So I don't quite
41
understand how IBM can take the position that none of the
294 today, which provide even more information, are not
adequate when, in February of 2004, the ones available
then, were adequate. But be it as it may, those are part
of the ones not challenged. Those are within the 100. And
we are focusing on the ones which are method and concept
disclosures which, by their nature, do not relate to source
code.
Now, if we turn to tab 4, first of all, Your
Honor, the contracts between SCO and IBM required IBM to
keep confidential methods and concepts from UNIX System V
as well as derivative products. It was part of our
pleading. It's always been part of the case. IBM has
asked about all sorts of technology issues at depositions.
This case is not simply a copyright case that deals with a
code comparison. I think the Court has, itself, recognized
that this case involves contract protections that can be
broader than the copyright law provides.
Now, as Mr. Rockein explains, the identification
of a method or concept differs from identification of
source code disclosure. In many cases no source code is
discussed at all. In some cases sample source code is
disclosed. In certain cases, where there is a patch, that
is referenced in the disclosure item, and that is in the
disclosure itself.
42
Now, it would be a merits argument for IBM to
argue that, unless you have source code in a methods and
concept disclosure, that isn't actionable, and that is
really the premise of what they are asking this Court to
rule. They make a merits argument that if it isn't source
code, it is not actionable. Well, they will have an
opportunity to make that argument for summary judgment or
otherwise.
We don't think that is correct. We don't see any
law that supports that proposition, but that certainly is
not a proposition that's previously been established, but
it is the assumption under which their motion rests, that
if it's not source code; line, file, version, it doesn't
count. Now, we would submit that if these disclosures
convey sufficient information to tell the Linux developers,
who are doing the coding, how to implement the method and
concept, then, by definition, it should be sufficiently
specific to put IBM on notice of those claims, as it is IBM
that has the operating system and which made those
disclosures.
And I think, when we talk about a few examples,
we'll see that. I'd like to turn, Your Honor, to tab 7 in
the binder, if I might. Tab 7 is a summary of what
Mr. Rockein points out in the detailed charts which are at
tab 10 and in his declaration. And they talk about the 198
43
challenged disclosures. For 130 of those 198, you have the
actual disclosure item, if it was an e-mail, if it was an
article. That item, the disclosure, itself, is provided.
So IBM knows exactly what we're talking about.
For 181 of the 198 challenged items, there is an
express reference to Dynix or ptx in the disclosure, which
we submit is a prima facie case that this comes from Dynix.
The people making these disclosures were at Sequent
Developers, who had worked on Dynix. For 168 of the
challenged items, file locations in Linux were specifically
provided.
Now, I'd like to, if I might, turn to one example
that Professor Davis discussed in his declaration because I
think that, in itself, an example hand-picked by IBM's
expert, that example, itself, shows that there is
sufficient specificity here to allow IBM to understand what
we are talking about and proceed and prepare a defense. We
have included that at tab 11 in the book, Your Honor.
Now, I'm going to be fairly general in describing
the contents of these and a couple other examples because
of the confidentiality order concerning these matters, but
the matters are before the Court and can be read. And the
first page here indicates what's in item 146, which is a
method and concept that is -- also references another tab,
a paper written by an IBM employee named McKeny, and a
44
website with code which, interestingly enough, we can't
access because we don't have access to that, but which says
that these are scripts related to this method and concept
that IBM would be able to access but which we were unable
to access.
If one goes to the third page, this is a copy of
what we have in our disclosure statement with respect to
item 146. And it indicates the three IBM employees, all
former Sequent employees, who had worked on Dynix, who are
involved in the disclosure. It quotes from the e-mail in
which the disclosure was made. And the general area here
is a method and concept called differential profiling. It
discusses how -- where this is described, and that is a
reference to this article, which Mr. McKeny wrote, with
respect to differential profiling. And there is a
reference to some scripts that can help with differential
profiling found at a website where we don't have access,
but he says these scripts are set up for ptx, which is the
reference at Dynix and ptx.
It has the source to tab 156 in these books,
which then has the following pages, which is the entire
e-mail chain, which has proposed code submission to Linux
and the discussion by e-mail among these IBM'ers, one of
whom is putting together the Linux contribution and the
other who is familiar with this method and concept in
45
Dynix.
And, finally, you have the Linux files which, we
submit, relate to this improperly disclosed code, method
and concept. So, here, in the very example that Professor
Davis points to, you don't have just a nebulous description
of what we're talking about or a general description of the
method and concepts, we have the actual disclosure. You
have the precise method and concept which is at issue. You
have references to code, although we don't know what that
code says. You have the Linux files. You have the
individuals who they can talk to. They are IBM employees,
who assisted in preparing a defense.
And we submit that that shows that that is a
sufficient amount of information for us to proceed with
this item. Now, if we turn -- and I think that that is
generally the case. This is the one example they have
picked, but the point is, is that there is specific
information here about methods and concepts which have been
part of the case since the Complaint and which are, until a
court orders otherwise on the merits, a sufficient basis
for us to say they have violated contracts that say that
methods and concepts are to be maintained as confidential.
Now, Your Honor, the second argument that I'd
like to turn to is that there is no proof of willfulness,
that would be a requisite finding for a discovery sanction
46
of the type this Court is being asked to make. We are here
under Rule 37(b)(2), and that provides that if a party
fails to obey an order to permit discovery or provide
discovery then a certain number of sanctions may be
entered. All the cases cited both by us and by IBM are
consistent in indicating that you have to have a willful
failure to make discovery. In other words, we have to have
something in our possession that we are not turning over to
them. And there is no proof of that whatsoever, that we
are holding back source code relating to these methods and
concepts and not telling them about it.
Where is the proof of any of that with any of
these 198 disclosures? What there is, is an argument
saying that they would like there to be a source code
identification for these methods and concepts. Well, there
isn't. If they think that means these legally aren't
actionable, that is a motion to make on summary judgment to
the Court.
If they think we are holding back some
information, then tell us what that is because we aren't,
and Mr. Rockein expressly indicates that in his
declaration. And his instructions were to be as
forthcoming as possible, and we have sought to do that.
And if we were to, at a later time, present
disclosures that are not in these 293 or to be shown to
47
have had in our hands information that was disclosed at
this time, IBM is certainly able to object. If we were to
oppose a motion for summary judgment by using material that
should have been disclosed here but wasn't, they know how
to object. And that's what these cases deal with.
If you look at tab 12, the cases cited by IBM
deal with situations where here a creditor failed to appear
for a deposition at all, and the Court dismissed the case.
Obviously the creditor had the ability to appear for the
deposition. You had the Nike case, where the defendants,
quote, "totally failed to provide the relevant data that
they had."
If you go to tab 13, we talk about the other
cases; the Standard Metals case, which is a Tenth Circuit
case, the defendant failed to appear for deposition. The
Kern River case, the property owner failed to produce
documents, documents which it had within its possession.
That is where discovery sanctions come into play, but there
is no basis, in any of the cases cited, on which you can
sanction SCO for not turning over information it does not
have with respect to version, file, line references to
methods and concepts where those were not used. They
weren't used by the IBM employee in making the disclosure,
and they weren't otherwise known to us.
Now, there are a couple of cases where Court's,
48
on summary judgment motions, like the Imax versus Cinema
Technology case and the Kang case have precluded a party
from using evidence at summary judgment that they haven't
produced in discovery. And that isn't, of course, what we
are talking about here. We are not at summary judgment.
We certainly haven't sought to use any evidence that hasn't
been produced in discovery. If we did try to do that, IBM
knows what to do.
So, Your Honor, with respect to the legal
requirement to enter a sanction order that IBM has asked
for here, there is simply no legal basis on which a finding
can be made that we have things in our possession that we
have willfully failed to provide. Now, I would note
further that this is especially an inappropriate motion
coming from IBM, given what has come to light as their own
actions which have made identification of source code more
difficult, if not impossible, in many cases.
If you turn to tab 16, Your Honor, I would like
to briefly discuss two aspects of that. Your Honor, one
aspect is the AIX source code, which this Court ordered to
be produced, to provide all versions and formats. And IBM
has said that many of these can't be located.
If we turn to tab 17, one of the things that has
come to light during the deposition process is that
directions were given, after these lawsuits were filed,
49
that led to the destruction of probative information.
After this lawsuit was filed, you would expect an order to
go out to everyone saying: "Don't destroy anything. Keep
everything in tact. You are required to preserve
evidence."
The record from Dan Frei, who is the head of the
Linux technology center, indicated that there was a
direction to the people there to cleanse their sand
boxes -- What are sand boxes? That's where you're working
on code. That's a colloquial term used on your desk tops,
on your computer screens that are on file to work on
code -- to cleanse their sand boxes of AIX and Dynix/ptx
source code. And one IBM Linux developer, Mr. McKeny, a
senior developer, has admitted to destroying pre-litigation
drafts of source code written for Linux while, at the same
time, he was referring to the Dynix/ptx source code. And
that's Exhibit 7 to SCO's memorandum.
So it is -- and in their response, IBM said, "We
don't think this is true, and we are not going to respond."
That's all they said about this. Here you have a party
saying we should be sanctioned and, yet, they have, in
fact, taken affirmative steps that led to the destruction
of probative information that has come to light in the
discovery of this case.
THE COURT: That may or may not be true, but that
50
isn't before me today.
MR. SINGER: Well, Your Honor, we think it
relates --
THE COURT: That issue is not before me. The
question is whether SCO is in compliance with the Court
orders and whether or not it was a willful withholding,
etc. So, I would prefer not to go into issues that are not
before the Court.
MR. SINGER: Your Honor, we will respect that and
move on to a subsequent issue. We think that it relates to
the overall environment in which the motion is made.
Your Honor, the third point of the three
arguments is that, even if you were to find, which we don't
think you can, we haven't complied with the Court order
saying, "Disclose material with specificity," which is the
Judge's order leading to these disclosures, and even if you
were to find that we were willfully withholding
information, you can't make a blanket judgment saying, "All
198 items should be excluded. You fail on all of them."
Expert testimony would be needed, and we would
need, we would submit, a lengthy hearing where you go
one-by-one and see whether or not it's specific and see
whether or not there's any information that has been
withheld on that particular item, which should have been
produced, which we have not produced, which we have not
51
provided. There is no evidence at this point, with respect
to any of the 198, that we were withholding such
information.
But, if we were to go down that process, what you
would need is a hearing where, on an item-by-item basis,
IBM comes forward and says, "Here. They could have
disclosed this," or "They had this information available.
They didn't do it."
You hear from us. You hear to the extent it
would assist the Court from expert witnesses, and you make
a decision on that item. Instead, they have tried to make
a blanket judgement with respect to the 198 disclosures.
Moreover, I would submit that the expert reports
that are coming up and the discovery of those expert
reports in depositions will be a good test as to whether,
in fact, IBM doesn't have sufficient specificity to defend
against these items. We will see whether or not IBM's
experts say: "Well, we really don't have anything to say
about these because we can't figure out what these defenses
are," or that, even though this was a specific enough
e-mail to tell the Linux community about the method and
concept, we can't use that to prepare a defense as to
whether that's already publicly known in some textbook or
some publication. That process should be allowed to run
its course and to see what that expert discovery turns up
52
with.
Now, Your Honor, I'm going to just briefly
mention, because they have only picked one example, 146,
the need for this type of individualized determination is
clearly seen when you just turn to a few of the other
examples that they are challenging but which they haven't
said anything specific about. They said something specific
about item number 2, which was RCU, and when we responded
in our opposition brief, they dropped it.
Item number 53 is at tab 20, and, again, I'm
going to be general because of the confidentiality. But
this is a method and concept which deals with improving
locking, and if you turn to the first page after our header
slide, you see the actual disclosure. It identifies who
made the disclosure, an IBM employee, Mr. Wright; the
nature of that disclosure, which is not amorphous. It's
very specific. It refers to the e-mails and quotes them,
where those were actually made to a Daniel Phillips, who
was a Linux developer, and it makes specific references
that they are getting this from Dynix/ptx.
You have references that this method, this
particular method, quote, "is not currently used in Linux."
You have another reference at the bottom of that page
saying the classic quoting style in Dynix/ptx is then and
goes on and provides source code in the context of the
53
e-mail saying that this is the right way to go about it.
You then have sources referenced on the next page in our
disclosure and you have Linux files relating to that method
and concept. And then, following that, you also have the
entire e-mail -- this was put in at tab 156 -- and
deposition testimony where, if you turn to page 154 of
Mr. Wright's deposition, you have an admission that this
particular method and concept was cut from source files in
ptx source code. That's page 154 of his deposition between
lines 1 and 8 at the top of the page.
So, it is, in our view, a completely specific
identification of a method and concept. In this case it
relates to source code. It's related to the source code
that they have drafted here. There's an admission by the
person who wrote it that it came out of Dynix/ptx. There
is no reason IBM can't sufficiently defend against that.
If you look at tab 21, we talk about item number
38. This is a disclosure of a method and concept that
actually goes back to UNIX System V. It relates to an
automatic method of checking for updates in memory. And if
you turn to the next page, you have an identification of
the IBM employee, Mr. Irwin, who made the disclosure. You
have a summary of that and a reference to a tab in the
Linux files. If you turn to the tab items, it shows the
actual e-mail of how this should be handled, an express
54
reference to SVR4, which is System V release four, which
prove that there are, and then it goes on to get into the
merits of the method and concept.
This is specific identification. If you go to
tab 22, this is another method and concept dealing with
multi processing from Dynix into AIX and from Dynix into
AIX for use in Linux. And, again, you have a specific
individual, Mr. McKeny. You have specific e-mails, which
are referenced and provided at tabbed items, which embrace
the disclosure. You have deposition testimony where, at
page 255, there is admission and there were disclosures
from ptx and AIX. And turning to near the end of this
tabbed item at pages 194 and 199, you have admissions that
certain Sequent technology, subject to contractual
protection, was contributed to the AIX kernel and used to
enhance AIX.
Item 23, which is also tab 23, is a disclosure of
negative knowhow, where they are discussing how not to do
something, to avoid a blind alley, which is part, we would
submit, of the confidential information protected by our
agreements. And you have an express discussion in e-mail
by another identified IBM employee; in this case, Martin
Bligh. It relates to the way Dynix and ptx used this
system. He states, quote, "We are trying to get for Linux
the benefits of blank --" you have that -- "without the
55
associated pain." And then you have references to
particular tabbed items that go into more details of the
nature of that discussion.
I could go on and on and on, and we don't think
it's necessary, but if this Court were going to pursue the
issue of whether or not there is sufficient specificity in
our December report, that is what would be necessary
because we have a right to defend ourself with these
disclosures and say that this is specific information.
This is all we have. This is adequate to mount a defense.
Your Honor, the motion should be denied.
THE COURT: Thank you, Mr. Singer.
Mr. Marriott -- and I'm certain you will, but I
would like you to address what IBM uses to support the
willfulness requirement.
MR. MARRIOTT: Excuse me, Your Honor, what?
THE COURT: The willfulness requirement, to
address that.
MR. MARRIOTT: Your Honor, what I heard is a
presentation that bears little relationship to the
provisions of the Court's orders that are at issue on this
motion. And let me briefly -- in fact, let me make a
series of points in that connection. Just as at the
outset, let me say this with respect to Mr. Singer's query
as to how IBM could possibly say that all 294 items were
56
insufficient:
What I said, Your Honor, is that SCO was not
providing all the information he was required to provide,
with resepct to this, pursuant to many of the orders, not
that we don't have as to all of them the coordinates that
at least allow us to figure out our defense. They are
deficient, all of them, for reasons entirely unrelated to
the present motion, and we won't deal with those here. But
it is not the case, Your Honor, that we contend that they
are deficient because of the particular reasons at issue on
this motion. They are deficient for other reasons.
Now, Your Honor, the first point I made, I
believe, when I stood last was that the Court had
repeatedly ordered SCO to provide version, file and line
information. What I heard Mr. Singer say is, "That may be
true with respect to code, but it's not true with respect
to methods and concepts. A different standard applied
there. We could kind of be as specific as we felt was
appropriate." That absolutely -- that, Your Honor, bears
no relationship to the Court's orders, and it is, I would
submit, wrong.
Lit me direct you, if I may, to tab 4 of our
book. I agree with Mr. Singer that SCO has made
allegations relating to methods and concepts, whatever
precisely that means, from the beginning of the case, and
57
it is for precisely that reason that we propounded
interrogatories that address that exact issue. And I would
refer Your Honor now to some of the language in here which
I think speaks expressly to the question which Mr. Singer
ignores, which is that the orders of the Court applied as
equally to methods and concepts as they applied to
allegations of misuse of code.
To begin, Your Honor, in the first line, Your
Honor asks for -- requires, even, that SCO identify and
state, with specificity, the source codes that SCO is
claiming form the basis of their action. Your Honor,
contrary to what Mr. Singer suggests, methods and concepts,
whatever they are, do not exist, as they relate to
operating systems, independent of the code that implements
them. They don't exist somewhere in the ether. They exist
as they are implemented in operating systems by source
code, which source code is organized in files and appears
in versions of products.
Take a look, if you would, at interrogatory
number 3. There Your Honor ordered SCO to respond, as
requested, by IBM. What did IBM request? That SCO
describe in detail all places or locations where the
alleged trade secret or confidential or proprietary
information may be found. We are talking there, Your
Honor, not about just code, but information. That
58
includes, however you define it, methods and concepts. And
the order is for them to describe, in detail, where those
methods and concepts are found.
That means, when you are talking about operating
systems, not saying "Dynix," which is essentially what
their argument is. Mr. Singer points to a bunch of e-mails
and says, "See. There's a mention of the word 'Dynix.'"
Well, okay. But, so what? That doesn't tell us, with any
particularity, what method and concept we are talking
about. The Court's orders contemplated the provision of
specifics. That's what IBM asked for. That's what Your
Honor indicated should be provided.
Look, if you would, please, at interrogatory
number 4. "Please describe in detail, with respect to any
code or method plaintiff alleges or contends that IBM
misappropriated or misused, the location of each portion of
such code or method in any product."
The order was to disclose the location of the
method in the product with -- in detail. The only way to
do that, Judge, is not to say it's in Dynix, which is
essentially what they are saying, but to tell us where it
is in Dynix. We produced, as Your Honor knows, enormous
amounts of information from IBM concerning version and
control. CMVC Your Honor will remember well, and though
their expert has claimed to have referenced CMVC in
59
preparing the final disclosures, which CMVC was produced at
enormous expense, which information would allow SCO to tell
us where in AIX the versions, files and lines are that were
supposedly misused, we don't have that information.
The Court's orders contemplated for methods, as
well as code, a location. A location, to be done with any
particularity, means files and lines.
The next item, Your Honor, interrogatory number
12: "Please identify, with specificity, by file and line
of code, all source code and other material, methods, in
Linux to which plaintiff has rights."
Don't tell us it's in Linux, which is essentially
what they have done, or there is a bunch of files in which
you can probably find it. The order was to tell us, in
detail, where it's found. And as you made clear in other
of the orders below, Your Honor, by way of lines and code,
just look at one more, if you would. Look at the red text
with respect to System V, Judge. SCO was to provide and
identify all specific lines of code from UNIX System V from
which IBM's contributions from AIX or Dynix are alleged to
be derived.
Contributions isn't limited to code. It's about
code and methods and concepts and whatever else you want to
throw in under it. From the beginning, Judge, we have
been seeking simply to understand what the allegations are.
60
What SCO has come back and said is: "We have given you a
bunch of disclosures, and that tells you enough."
That doesn't tell us what their allegations are. And
when I come to your willfulness question, Your Honor, I
will explain why that's easily satisfied here. So, with
respect to what the Court's orders say, Your Honor, I have
heard nothing from Mr. Singer about this language. The
Court's orders couldn't be more clear. They are not just
limited, as has been suggested, to code. They are about
whatever SCO contends is misused.
Now, it is true that one of them says, where
appropriate, by file, version, line and code. That's not
where we're talking about methods and concepts. That's for
something like the use of a patent, to which there is no
file with respect to a patent. That's: Tell us what lines
of the patent are at issue.
So, there is no file to be talked about when you
are talking about a disclosure from a patent, as they do.
The orders are clear, Your Honor, and I've heard
nothing to suggest that this language means anything other
than what it says on its face. And, frankly, if you were
to look at the history, Judge, behind these, as we have set
out in tab 3, we aren't singing a different tune. I have
been saying, from the beginning of this case that, for all
four of these operating systems, we want version, files and
61
lines of code with respect to whatever they say we did
wrong.
And what we are hearing today is that, well, all
that didn't really count if you were talking about methods
and concepts, and, by the way, we are talking almost all,
they say, about methods and concepts. I would submit that
that's not true either, Your Honor. A number of the items
that are challenged in this motion are not just about
methods and concepts, they are about code.
And under the standard that Mr. Singer would
apply, they plainly fail because, as you see in Addendum B
to our reply brief and Dr. Davis' report, there is no
versions, files and lines with respect to each of those
operating systems for the code they say has been misused.
And there is not that order for the methods and concepts
and, as a result, Your Honor, the Court's orders have not
been complied with.
Now, with respect to the second point I made when
I stood before you, Judge, which is that they haven't
complied, Mr. Singer didn't refer -- SCO nowhere refers to
this table wherein -- and I submit, again, as I said, it is
indisputable that information is not provided; version,
files and lines of code. So, what do we hear instead? We
hear a different story. Instead of hearing about where the
versions and files and lines are, we hear: Well, gee, we
62
can't tell you about those because the e-mail didn't
mention it.
We are not asking to be told, Your Honor, what
it says in an e-mail that we produced to them and then that
they threw back at us. What we are asking is: What is it
that they contend? What is it in Linux that you say we did
wrong? Where's the version and the file and the line of
code of the method which is somehow supposedly there and
supposedly entitles you to billions of dollars?
We are asking them for their allegations. No one
knows their allegations but them. No one. I could read
the e-mails for myself and see that they say Dynix. That
isn't what we've been asking for since the beginning of the
case, Your Honor, and, respectfully, that is not what the
Court required. Now, what Mr. Singer says is: "Judge, we
provided 10 thousand pages of paper. Come on. Give us a
break. This is really specific stuff."
I haven't counted the pages. I take him at his
word that there are 10 thousand there. But, Your Honor, as
I said in the opening, what we've been given is our own
documents back. We produced a bunch of e-mails, and they
hand them back and say: "See, there? You know what you
did. Figure it out for yourselves. There is a reference
in there that says Dynix. You know what you did. Go talk
to the developer, McKeny. He worked for you, you know, go
63
find out for yourself."
Well, Your Honor, that argument was made two plus
years ago, and it lost when SCO endeavored not to provide
this information in the first place and when Your Honor
said they were to provide it, and it was their burden, as
the plaintiff, to tell us what is in dispute. And what we
have been done -- what has happened is, we've been pointed
to a bunch of documents which, sure, if I were to stand
here and read to you from an e-mail, it sounds kind of --
it sounds kind of particular. It may well be particular,
but it doesn't answer the questions and provide the
particularity that we asked for and that the Court ordered
to be provided.
IBM has produced millions of pages of paper, and
I could stand here for days and read to you from the
documents, and it would sound a lot -- it would probably be
pretty boring, but that isn't what we asked for. That
isn't what was required. Now, Mr. Singer points to a
couple of examples, and I want to come to a few of those,
but the suggestion, Your Honor, that the examples that he
pointed to is somehow representative of what is in these
final disclosures is, I think, mistaken.
And I would refer you, if you would, please, to
tab 17 of the book -- I'm sorry, of the IBM book. And
there are four of SCO's disclosures here at 17, Judge.
64
This first one, I don't think I'm revealing anything of any
consequence here because there is nothing of any
consequence here. This says that IBM used ptx -- you
should read it there Dynix -- used Dynix. It says
absolutely nothing about what we did or about what part of
Dynix we supposedly used. We are told that we used our own
operating system.
There is no Linux files, no Linux versions, no
Linux lines. There's no System V versions, files and
lines. There is no versions, files and lines of Dynix.
Look at the next page, Judge, on the back. That's the
e-mail. That's what appears at tab 30. So, what we're
told is that, look, this shows that you guys were doing
funny stuff with Dynix or with ptx.
That doesn't answer the questions that we asked,
which is: What is it you say we did? You have had three
years. You have deposed this guy Martin Bleigh. What is
it we did? Where, particularly, is it you say we took the
code from Dynix, and what exactly did we do with it? Where
is it, so we can answer the questions that I took Your
Honor through before? It's not there.
If you look at 92, Your Honor, you see the same
thing right after the blue sheet. They say basically the
same thing: "You've misused Dynix/ptx."
Okay. In other words, you've misused an entire
65
operating system. If you look back at tab 3 -- I'm sorry,
tab 2, Dynix has 37 base versions, 472 thousand files, 156
million lines of code. So, what is it we did? When are we
going to find this out, Judge? In response to their
summary judgment papers at trial when we have no ability to
prepare a defense to answer all the kinds of questions that
we want answered because they won't tell us what they
claim?
This isn't about telling us what's in documents
we gave them and saying that it's not there, so how can we
tell the Judge? We've been asking from the beginning for
their allegations. These interrogatories are, in a sense,
contention linked. What is it you are saying that we did?
Only you know that. Only you can provide that. That we
don't have.
The same can be said, Your Honor, with respect to
number 93, with respect to 112. I won't bore Your Honor
with it, but, as you can see, and if you look at Professor
Davis' report, the detail that we have requested just isn't
there. There's no versions. There's no files, and there's
no lines of the operating systems that were required to be
provided. It says IBM made NUMA contributions. NUMA, Your
Honor, is a type of -- specialized type of hardware. So,
saying IBM made NUMA contributions is like saying IBM
made contributions that relate to a super computer.
66
They told us, in one of the Complaints, that we
used NUMA. We've been asking what exactly that means. So,
the idea that telling us that we used NUMA is telling us
something we didn't already know, tells us nothing. We are
asking for their allegations, in substantial part here,
that we don't have.
Now, again, reference is made -- not directly to
the affidavit but in the book that SCO provided Your Honor,
reference is made to the Rockein declaration and to the
questions that he answers and some of which are submitted
at one of SCO's tabs. And what I would say to you about
that, Your Honor, is, again, the Rockein declaration
supports the relief that we seek in this case. And I would
refer you to Mr. Rockein's Exhibit B. This is in his
report where he tells us why SCO has been specific.
All you have to do is compare the questions that
he answered to the questions in the Court's order to see
there is little to no relationship. One of the questions
here is: Did IBM provide an actual -- has SCO provided an
actual disclosure of code? Translated, that means: Did
SCO give IBM back some of the e-mails IBM produced to SCO?
Probably, in a bunch of those categories.
We didn't ask for that, Your Honor. We asked to
know exactly what we done. And what the Court's orders
said were: Not just identify, but provide.
67
So take a look at the next item over, column B in
the Rockein declaration. This is entitled Source Code
Identified in Disclosure. Reference Document, URL or
Related Item. And what you will see is, when talking about
source code identified here, Mr. Rockein, for the 198
items, says that source code was identified with respect to
16 of them. What he doesn't tell you is that his
definition up here, even to get to 16, means that he's
borrowing source code from other disclosures.
He says source code identified in these items or
in related items, so he's not just looking at the items
that are challenged. He's pulling source code from related
items. Whatever precisely that means isn't said. The
point, in any event, is: Even in his own document, there's
only 16 of them for the 198 items. The Court's orders said
identify and provide with respect to these three
categories: System V, AIX, Dynix and Linux. And it isn't
there, and he has illustrated that it isn't there.
And if you look at his next column, Column C, A
Link To Protected Materials. And there's a check or an "X"
in most of these boxes. What that means is that they've
got an e-mail, an e-mail that makes reference to somehow
IBM using AIX and Dynix, it's operating system. Maybe the
check is appropriate, but it isn't the right question. The
question is: Is there some link? Does IBM acknowledge
68
that it used Dynix in some way?
We know we used Dynix. There's not any question
about that. The question is: Did they tell us
particularly which portions of Dynix we supposedly misused,
and, if so, what relationship does it bear to System V,
where Your Honor said they had to provide version, files
and lines of code, and where in Linux is it? Where is the
version, file and line of code, so we can figure out:
Could this possibly have hurt these guys?
What if it came into Linux, Your Honor, in 2005,
and their UNIX business is shown to have -- to have
essentially died in 2001? How can IBM be held to be
responsible for that? We have a right, Your Honor, and it
only makes sense that we know what it is, particularly, is
being alleged here.
Now, I won't address, Your Honor, the suggestion
that IBM has improperly put up road blocks except to say
that I don't think that's right, and it's not properly used
in this motion.
Finally, Mr. Singer says, with respect to SCO's
compliance here, Judge, that -- that what you've got to do
is hold a hearing, and we've got to get experts on the
stand, and we've got to funnel these documents up to them
and let them read the documents and tell us how much
specificity is there. There is no dispute. The question
69
-- the simple question is: Did you require them to give
version, files and lines of code?
If the answer is yes, they lose because there is
no question they didn't do it. And I would submit, you
need nothing more than to look at this chart -- this is
actually their chart -- look at our chart, that looks like
this, Professor Davis' chart, look at what's not said here,
not submitted, and look at the orders. What was required
to be provided isn't provided. And that, Your Honor, ought
to be the end of the inquiry.
Now, does this -- does this injure IBM?
Absolutely it injures IBM. Your Honor, the suggestion is
made that this will all sort itself out, that it will be
really interesting to see what IBM, as Mr. Singer says,
puts in its expert reports when we get those expert
reports.
The difficulty is, Your Honor, how are we
supposed to prepare the kind of expert reports that we
ought to be able to prepare without knowing precisely what
it is that they are even alleging? How are we supposed to
send an expert down the road to show that a certain set of
concepts is in the public domain when all we know is it has
something to do with Dynix? One of the disclosures here,
Judge, is that IBM misused the internals of System V
Release 4. The internals. There are books some place, and
70
my colleague probably has it -- there are books written on
the subject of internals of System V Release 4. This has
been public for a very long time, Judge.
According to the copyright, which is not
immediately leaping out at me, it has been available for
probably a decade, Your Honor. 1994. So, when we're told
that we misused the internals of System V, that's not
telling us anything of any consequence. We are in no
position, Your Honor, on the schedules set, to be providing
the kind of expert reports that we need to provide to
defend ourselves with respect to these items because we
don't know, with any particularity, what is being talked
about.
Now, finally, Your Honor, is this the appropriate
remedy? It is the appropriate remedy. Your Honor entered
orders. We have been asking for a very long time to get
this information. The orders are repeated, and they are
consistent, in their tone and in their message, that this
information was to be provided so that IBM could prepare
itself for trial.
The issue isn't: Do we have some general idea of
what the technology is? The issue is: What are we all
really talking about here so we can go out and answer the
kind of questions that we need to answer? Deferring this
to summary judgment is not an adequate solution to the
71
problem because it puts us in no position to properly
prepare for summary Judgement.
Your Honor asked about willfulness. Willfulness
isn't bad faith. Willfulness means: Did they
inadvertently provide these disclosures or did they
knowingly provide what they provided? There is not any
question they acted with willfulness. They know what they
did. Mr. Rockein said he spent a substantial amount of
time working on this. I don't have any reason to think
that he didn't. What they provided is not -- is not done
inadvertently, Your Honor.
They had those Court's orders. Your Honor
admonished the parties in December -- December of 2003, I
think, Your Honor, when we first argued that SCO hadn't
complied, in chambers, that if anybody had any problem with
any one of SCO's orders, that they should make the Court --
any of your orders, that they should make the Court aware.
This is when IBM complained that SCO hadn't complied with
the order the first time around. That never happened.
And, in fact, Your Honor, what happened here is
that when we received SCO's interim disclosures, we brought
to SCO's attention that we believed that it had not
properly complied. Mr. Shaughnessy sent a letter to SCO,
and I believe, Your Honor, it's at tab 17 -- that's not
right. It's at tab 14, Judge. And what we said here is
72
that we've done a preliminary analysis of your interim
disclosures, and, in effect, these come nowhere close, so
please fix this problem or you're going to leave us no
choice but to seek the very remedy that we are seeking
here.
We got no response, Judge. What we got is the
final disclosures on the 20-something of December with 198
items that aren't properly disclosed. There is ample
authority for this Court entering an order indicating that
SCO failed to do what the orders plainly required it to do,
ample authority. The Tenth Circuit's decision in Kern
River; the decision from the Southern District of New York
in the Nike case; the Ninth Circuit's decision in Imax.
There is not any question that what happened here
was intentional in the sense that they didn't provide the
information they were requested. This motion doesn't turn,
as has been suggested, on the idea that SCO is sitting on
an e-mail some place that tells IBM -- that has all the
information that IBM wants and just failing to provide it.
The disclosure -- the interrogatories, Your
Honor, and the Court's orders require the disclosure of
that which they contend was misused. The issue isn't
whether there is something in a document some place that
they have withheld. The issue is: What are they really
saying? What are we really going to present to a jury in
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this case? What is it really about? What should the
experts be talking about so that we don't have a situation
like we have here, where Professor Davis is saying, "Gee,
there's no versions, files and lines there."
And Mr. Rockein is saying, "Gee, it seems pretty
specific to me, and I worked pretty hard on this and gave
them an awful lot of documents. They should know what's
going on."
Well, what's required, Your Honor, hasn't been
provided, and, respectfully, the Court ought to enter an
order indicating that the Court's orders haven't been
complied with and SCO ought not be allowed to produce -- to
proceed with respect to these 198 items. It can proceed
with its 90-some other items. That is not an extraordinary
remedy, and we are not asking for a dismissal of the claim
in its entirety. We are asking it to be limited to those
items that have been properly disclosed.
The Court's orders were clear. They sought no
clarification. We are severely prejudiced in even
preparing for summary judgment, let alone expert reports,
without that information. We ask that Your Honor enter an
appropriate order. Thank you.
THE COURT: Thank you, Mr. Marriott.
Go ahead, Mr. Singer.
MR. SINGER: I will be brief, since we are in
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rebuttal. First of all, we have provided, compliant with
the December order that says specifically identify the
misused material. That is the order that led to these
submissions.
The assumption IBM continues to make is that for
a method and concept there is always a source code to be
identified. And where does that assumption come from? It
is not a prior order of this Court. It's not a
determination of fact or law that the District Court has
made. It's an assumption because they would like to get
rid of these 198 items without having to defend against
them. These 198 items, to the extent they didn't have
source code, were, never the less, disclosures where the
IBM people, without the use of a source code, were able to
communicate protected information to Linux that we contend
was valuable and in violation of our rights.
And if they didn't need to include source code
in the disclosure, Mr. Marriott cannot explain how we can
be expected to provide or be obligated to provide source
code beyond what the disclosure itself contained.
THE COURT: Let me ask you this: Is SCO in
possession of -- can SCO provide additional specificity
with regard to any of these items?
MR. SINGER: We have had a couple months of
additional work since December 22. It may be that on a
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handful of these items something has come up during that
time period which would allow a more specific reference in
one place or another. But, in general, with what we're
talking about here on methods and concepts, no.
THE COURT: Well, I guess what I'm asking you,
basically: Is this all you've got?
MR. SINGER: Well, what we -- we have continued
to have our experts work, but if the issue is: Do we have
today, version, file and line, which Mr. Marriott expects,
on methods and concept, where IBM did not used those in its
disclosure, the answer is no. We don't have that because
it's not part of the method and concept. It is a
disclosure of something which might be implemented in
source code when the method and concept is implemented.
But if that implementation was not disclosed then we don't
have, in our possession, where that specific code is coming
from.
It could be implemented a number of different
ways in different source code. That is the very difference
between a method and concept and a source code disclosure,
so the very premise of IBM's argument, that methods and
concepts inherently must be identified with associated
source code, is without support. They would like that to
be the case, but that has not been so held. They can make
an argument to that effect in front of the District Court,
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that they should be granted a summary judgement because the
method and concept that we haven't disclosed source code is
not actionable.
THE COURT: But you are talking more conceptually
here, again. Is there source code that relates to these
method and concept items?
MR. SINGER: On 16 of them, we have, and those
are 16 of the 198, there is source code ether imbedded in
the item or in a related URL file where you go to a
website. It is possible that a few more may come up, you
know, with additional work, but we have given, at the time
of this submission, everything we have. And we are happy
to continue providing everything we -- if there is anything
new we get.
THE COURT: But you are referring to a website;
is that correct? You are not providing it yourself.
You're saying it's imbedded somewhere else?
MR. SINGER: Well, for instance, the one example
that they choose, 146, the source code that's referenced
there in search of scripts is on a website we don't have
access to, so we provide the reference to that website that
is an IBM password-protected website. Now, with regard to
the methods and concepts, generally, there will be some
sample code that's in the e-mail disclosure saying, "Here
is one way you can implement it."
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That goes beyond those 16. Some of the examples
I have mentioned to you have that. But the more general
point is, these are not just saying: "Here's the general
method and concept," or "We want you to defend everything
in Dynix." These are very specific items, culled from
thousands and thousands, coupled with thousands and
thousands of hours of work from millions of pages from the
much broader universe. Now, some of them relate to one
another, like there's 40 related to NUMA. You can't just
pick out one related to NUMA in isolation and say that this
is not specific enough.
The point is, is that we cannot be expected to
provide a greater level of specificity on method and
concept disclosures than IBM's engineers used when they
were making the disclosure. We are not going to present
more in terms of at trial. We are talking about
disclosures that are not in these 293, where they need to
be concerned that something new is coming up, and, if we
did that, they could raise that issue.
If they move, either here or at trial, on the
grounds that we should have disclosed something that we had
now, and we didn't disclose it, they are able to make that
motion. That's what most of these cases deal with.
THE COURT: But that's not really the issue. The
issue is not: Will you be allowed to present at trial,
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but, do you have it and should you have presented it so
that they can determine how to deal with it in terms of
their motions for summary judgment or at trial?
MR. SINGER: We gave them everything we had, so
we don't have anything more. I mean, we think we have
complied fully with the Court's order, but, in any event,
we certainly have not withheld information. And I listened
very closely to what Mr. Marriott said about willfulness
and that we willfully filed these. He did not say anything
that indicated that we have any information that we have
not provided, that somehow we are sitting on top of source
code, line, file and versions relating to where -- let's
say any particular one of these 198 items relates to a file
in Dynix, and we just haven't returned it over or that we
have or it or that we should have it and haven't provided
it.
We have given them everything we have related to
these, and their argument is that they would rather not
have to defend against these disclosures, but they are --
we submit, they fall into one of two categories; either the
disclosure, as made by IBM, with the information here, is
specific enough to defend against. It tells you it isn't
just Dynix, generally. You can see these are talking about
very specific items, with the individuals who are involved
in making them, what they do, where they went to Linux.
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They know what we are talking about.
They can mount a defense on any number of
grounds. They can say it's not really a method and
concept. They can say it came from somewhere else, that
Mr. McKeny came up with 146. It wasn't from Dynix. It
came from some other source. They can say it is out in the
public domain because we have exactly what was disclosed.
It is specious to suggest that they cannot defend against
these items.
These are items that were sufficient to
communicate this knowledge to Linux, and if they weren't
sufficient to communicate that method and concept to Linux,
either because there wasn't enough information in them or
the information was too general to really be protectable,
well, then, that's their summary judgment motion on that
item, and they are fully able to make it from what they
have been given, and we will oppose it with what we've been
provided with.
And that's a merits issue, to be considered with
respect to whether or not this truly was a disclosure of
protected methods and concepts. But, whatever it is, it's
not a discovery sanction issue. We have given them what we
have. And where is the evidence that we are holding back
anything? Where is the evidence that we should have been
able to provide source, line and code on disclosures where
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the disclosures themselves do not relate back to source,
line, code and file -- excuse me -- version, file and line
of source code with respect to that particular method and
concept?
We have supported our position with an expert's
declaration explaining that methods and concepts, even if
many textbooks, Mr. Rockein says, are not discussed with
respect to actual source code. They may be discussed with
some sample source code. They are often not discussed with
actual source code. That is in the nature of a method and
concept.
Now, I fully understand that Mr. Marriott might
be -- would rather not have to deal with these 198
disclosures because you have a lot of evidence. IBM
disclosed things, from what we contend are protected
systems against disclosure, to the Linux community. But he
has to deal with these. And the fact they come from IBM's
own files means it should be easier -- not more difficult,
but easier for Mr. Marriott and the IBM team to defend
against.
So, we have supplied specificity here. There is
absolutely no showing of any willful failure to make
discovery. And with respect to the third issue, of having
to go example-by-example, we hear in this rebuttal argument
three or four new examples that aren't mentioned in any of
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their briefs. They didn't say anything about example 146,
which was the one example that was mentioned by Mr. Davis.
And all I think that highlights is that if the
Court was going to go down this path, we would have to go
item-by-item and look at those and deal with the issue of
whether or not it is sufficiently specific so that IBM can
defend, to deal with the issue of: Do we have more
information, for some reason that we are not turning over,
that we would willfully be withholding something?
To be sanctioned for discovery, you have to be --
have within your capacity the ability to comply. You have
to have something you are not turning over. You have to
produce a witness for deposition. You have to turn over a
set of documents that you're withholding. They have made
no showing of that -- of that, whatsoever. But, if they
were going to go down that road, that would have to be done
item-by-item with respect to these disclosures.
Your Honor, the motion should be denied.
MR. MARRIOTT: May I just briefly respond, Your
Honor?
MR. SINGER: Your Honor, there was one point I
omitted to make before Mr. Marriott responds. May I just
go to that?
THE COURT: You may.
MR. SINGER: With respect to your earlier orders,
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the Court is aware March 3, 2004, it indicated, in light of
what the Court considered SCO's good faith efforts to
comply with the Court's prior orders, the Court lifts the
discovery stay previously imposed. In February of '05,
there was an order which provided us a lot of information,
and we have been digesting that information and working
with that information, and the depositions, some of which
we had as a matter of course, some of the which came out as
a result of one of the hearings we had before Your Honor
with more developers.
And it is that information which leads to this
material. Some of it comes from IBM. Some of it comes
from discovery. Some comes from third sources. But there
has never been a finding by this Court that we have not
acted in good faith, that we have withheld any information
or anything that Mr. Marriott suggests, other than the fact
that we've been trying to produce as much information as
possible on a complex matter.
MR. MARRIOTT: Your Honor, Mr. Singer suggests
that what was required in the December submission was just
disclosures of the allegedly misused information, as if
somehow that had no meaning independent of all the Court's
prior orders, that it meant disclose, and it meant disclose
with specificity, so they could basically do what they
wanted in disclosing in the orders. What he doesn't --
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what he overlooks, however, is the language of Judge
Kimball's order and his own statement to this Court in a
subsequent hearing.
Judge Kimball's order says, "The interim deadline
for parties to disclose, with specificity, all allegedly
misused material identified to date and to update
interrogatory responses accordingly, to provide the
information ordered by the Court previously and requested
by IBM."
There is -- in any event, even if that language
didn't exist there, there is an obligation under the
Federal Rules to seasonably update your disclosures. IBM's
discovery requests didn't go away. Neither did the Court's
orders, and if SCO acquired additional information, and
certainly by that final deadline it had an obligation to
provide it. Now, Mr. Singer, at a hearing, Your Honor, the
date of which I don't recall, but on one of SCO's motions,
was asked by you about interrogatory number 13 and
indicated that that particular interrogatory would be
updated as of the date of the final disclosures.
So, the Court's order expressly makes reference
to it as to the interim. It was plainly contemplated by --
by both -- both dates, and Mr. Singer acknowledged that at
that earlier hearing. Now the question is: Do the e-mails
make reference to a line or file in the concept? They may
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or they may not.
The issue, Your Honor, is whether the methods and
concepts, that they contend we mis -- we misused in some
respect, are implemented in code, whether they have an
address in Dynix, in System V, in Linux and AIX. And the
answer which I think he gave is yes. You implement methods
and concepts in code. They don't exist somehow ephemerally
above the code. They are in the code. They do not exist,
as a practical matter, in an operating system independent
of the code. And that's why we asked for that information.
Mr. Singer makes reference to item 146 and
suggests I failed to make reference to -- to how that item
is somehow not adequate. Your Honor, Mr. Rockein --
Mr. Singer suggested 146 is somehow an example of why SCO
has properly complied. Reference is made to a patch. The
patch referenced in item 146 bears seemingly no
relationship to the paper which is provided. The
connection -- there is no connection between the paper
given and the method that is mentioned.
The indication of Linux files that they have
referenced don't seem to have anything to do with the
method. What we've been given is a bunch of dots and said,
as I think Mr. Singer essentially just conceded, asked to
figure it out for ourselves. We are in the best position,
he says, to figure out what's going on.
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Now, the question is: Did we sit on -- did they
sit on something? Is there something they have held back
that they haven't provided? The answer to that question
is: Absolutely they have.
Is it a document from IBM's files which
references a disclosure? Perhaps not. What it is, is
their allegations. And I refer you back to tab 4 in our
book where you will find the Court's orders. The Court
ordered them to provide information relating to what they
allege and what they contend. This is in interrogatory
number 1. That's what we asked for, their allegations and
their contentions. How do they contend some code was
misused by IBM? Where, in Linux, is it that it supposedly
is such that it's killing their UNIX business? Where, from
AIX, does it come from?
The theory of their case is that we can't
contribute our own code. They admit we own AIX. They
admit we own Dynix. They assert that they, nevertheless,
have a right, pursuant to contract, to control what we do
with our own code. What is the basis of this argument?
They say, "Well, AIX and Dynix are, in some sense,
derivatives or modifications of System V and, so, again,
the contributions you have made are modifications and --
and derivative works of System V."
So we say, "All right. Tell us where the
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connection is between System V, between AIX and Dynix."
There is nothing, Your Honor, in these final
disclosure that make that connection, nothing. There is no
version, file or line of System V provided with respect to
all of those 180 -- 198 items. What SCO is essentially
seeking to do here, Your Honor, is to deny IBM the right to
pursue its defenses. They say we can raise all these
issues at summary judgment, but they know, full well, that
without knowingly particularly what's being said to be
misused, we are limited significantly in the number of
defenses we can raise.
There are probably defenses that could be made.
In fact, I have no doubt there are defenses that could --
that could be asserted. But we have -- we have -- we are
entitled, Your Honor, to pursue all of the legal defenses
available to us. That's why we asked the questions. The
answer -- the question here isn't just: What isn't being
provided in disclosure? It's: What, exactly, are you guys
alleging?
And that's what our interrogatory number 1 asks
for, allegations, and that's, if you look carefully at,
what the other items ask for as well. So, what are they
sitting on? They are sitting on their allegations,
allegations which, if they are not provided to us now --
frankly, now is too late. If they -- if the -- because
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they weren't provided to us, Your Honor, we are now -- we
are now not capable of doing the kind of work that we would
provide -- that we would have done if the allegations had
been provided to us. So, they are sitting on their
allegations.
That they have. That they are willfully doing.
And they are completely free to say at summary judgment,
when we say, "Gee, we didn't contribute that to Linux,"
they'll say, "Oh, yeah, it's over here. It's in that file
there. We didn't point those lines out to you before, but
it's right there."
We show a certain method is in the public domain.
Oh, we're not talking about that part of the System V
internals. We are not talking about that portion of NUMA.
We are talking about something else.
They are the master of their allegations, Your
Honor. We asked them for what their allegations were.
They sat on the allegations because they contend the
information is in Linux, but they won't tell us precisely
where. They contend that it derives from System V, but
they won't show us exactly where. They are effectively
throwing back to IBM the burden to figure out what it is
exactly they contend.
That, Your Honor, is improper. There is ample
authority, again, for the Court to enter the order we have
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requested, to indicate that the Court's orders required the
disclosure of this information and that it hasn't been
provided. No hearing is required. It is undisputed that
they haven't provided the information we say is required.
Thank you, Your Honor.
THE COURT: Mr. Singer, let me just ask you --
and then we are going to cut this off at 1:00 o'clock --
but how do you address Mr. Marriott's argument that without
this information that you maintain custody of, the
allegation, that they are forced to figure it out, in
contravention of the Court's orders?
MR. SINGER: I strongly disagree with it, Your
Honor. If we were to introduce a new technology not
embraced by the 293, 198 they challenge, they object. It's
out of the case. If we try do come up with specific source
code that we should have produced now to buttress a
connection that we didn't disclose that we should have,
they could object to it at that time saying we should have
put it in the December submission. If there is something
which is so general in the 293, and they say this one is
too general, that we should get a summary judgment on it
because it is so general, it really doesn't describe a
method and concept, it isn't anything that isn't widely
known in the industry or that our people have communicated,
that's a summary judgment merits argument.
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They haven't shown at all, other than repeatedly
asserting we can't defend, we can't defend, why, when you
look at these materials, they cannot defend. It describes
a method and concept specifically. It provides, usually,
an actual disclosure, the way in which the IBM employee
took that and gave it to the world, which we contend
violated our rights.
THE COURT: But doesn't that go directly to his
point, that you haven't identified that it was taken and
implemented?
MR. SINGER: No, but we have, Your Honor. That
goes to -- one of the lines in the chart that we presented
is where there has been an express reference, express, in a
written document in the disclosure item, that this comes
from Dynix or another system where we have protected rights
because they are derivatives of System V. And in 161 of
those 198, there is an express reference. In some of the
examples I mentioned to you, which they are objecting to,
you have a witness, an IBM employee, who says, "Yes. I
copied this out of ptx Dynix."
That's an admission. It came right out of that
system. Our argument is that that operating system is a
derivative work and, as such, they could not take
technologies from Dynix and ptx and disclose them to Linux.
And we prove that with this information. They are
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entitled, and they have enough here, clearly, to say:
"Here's this technology. It came from some somewhere other
than Dynix."
They can prove that. They know specifically what
we're talking about, and if there is one that's so general
where they don't know, then the issue isn't that we don't
describe it with source code, line, file, version; the
issue is that the method and concept, as a method and
concept, is too general to be protected or was describing
something generally known. And those are merits arguments.
Those are summary judgment arguments. Those are arguments
for experts. They are ultimately the arguments for trial.
We have provided this tremendous specificity.
There is no basis to conclude they can't defend on that
basis. There is no order of this Court or anywhere that
says methods and concepts have to be identified with source
code when there is no source code that accompanies a lot of
these methods and concepts. There is no showing that there
is anything in our possession or capability of doing it
that we have not done to comply with this order. And a
determination as to which of these are specific enough has
to be made on an itemized basis.
Thank you, Your Honor.
THE COURT: Thank you. The matter will be taken
under advisement. Counsel, thank you for your arguments
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today.
MR. SINGER: Thank you.
MR. MARRIOTT: Thank you, Your Honor.
(Whereupon the proceedings were concluded.)
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REPORTER'S CERTIFICATE
STATE OF UTAH )
) ss.
COUNTY OF SALT LAKE)
I, REBECCA JANKE, do hereby certify that I
am a Certified Court Reporter for the State of Utah;
That as such Reporter I attended the hearing
of the foregoing matter on April 14, 2006, and
thereat reported in Stenotype all of the testimony
and proceedings had, and caused said notes to be
transcribed into typewriting, and the foregoing pages
numbered 1 through 92 constitute a full, true and
correct record of the proceedings transcribed.
That I am not of kin to any of the parties
and have no interest in the outcome of the matter;
And hereby set my hand and seal this 5th
day of May, 2006.
REBECCA JANKE, CSR, RMR