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SCO's Motion to Compel and Memorandum in Support
Thursday, November 06 2003 @ 08:51 PM EST

UPDATE We have SCO's Motion to Compel and Memorandum in Support are now available locally, as well as being avaiable on Pacer. Here is SCO's Motion to Compel Discovery. And here is their Memorandum in Support of their Motion. A kind volunteer has already provided the Memorandum in Support as html, so I'll be putting it up shortly.

Here they are as pdfs in the docket entry on Pacer: First, the Motion to Compel and then the Memorandum in Support.

I haven't read it yet myself, so this is just a heads up. If anyone wishes to volunteer to OCR and send me the text, that would be wonderful. Meanwhile, let's take a look.


  


SCO's Motion to Compel and Memorandum in Support | 172 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
SCO's Motion to Compel and Memorandum in Support on Pacer
Authored by: rand on Thursday, November 06 2003 @ 09:05 PM EST
(Gee, whiz..I just posted this in another thread in another topic...but since this one is here now, here's an instant replay. I will appologize in andvance for the repost, but it clearly belongs here.)

I've just been reading the Motion and Memorandum.
Kevin hit it square on the head the other day.

SCOG is arguing that, since AIX and Dynix are completely derivative of UNIX and that IBM did promise not to reveal IBM's own trade secrets and proprietary methods (that is, since everything we say is true and we've won our case already) that IBM has to turn over every bit (literally) of AIX and Dynix source code along with all their notes, logs, etc., etc. They don't want the SVr4 code contributed to Linux, they want the AIX and Dynix code! And they specifically say they want it to they can comb through it to look for possible infractions that SCOG doesn't know about. Sounds like fishin' to me:
Plaintiff is entitled to production of all modifications and versions of AIX created over the years in order to analyze the ways in which AIX has changed and the ways its structures, nmethods, and information based on UNIX have evolved. The evidence adduced from this discovery is likely to identify evidence of infringement and/or contract violations by improper contributions of such items to Linux.[emphasis present in original]
(They weren't happy with the base code for two versions of AIX and three versions of Dynix.)
SCOG also wants not only everything IBM contributed to Linux from SVr4, but everything they contributed to Linux, or wanted to or tried to or might have or thought about contibuting to Linux.
...[IBM] should be required to indentify and produce all of its contributions and development work in Linux.[emphasis original]
SCOG also want the identities of everyone with knowlege of "the issues of this lawsuit" and are not happy that IBM has only supplied them with it's own current and former employees and anyone IBM can find out about. No, SCOG wants everybody.
This response is inadequate. The interrogatory asks for the identity of all persons with knowlege, yet Attachment A lists only IBM employees and former employees.[emphasis original]
I can't wait for Princess PJ's analysis of his one. It's bound to be a zinger!

---
#include "IANAL.h"

[ Reply to This | # ]

SCO's Motion to Compel and Memorandum in Support on Pacer
Authored by: Anonymous on Thursday, November 06 2003 @ 09:07 PM EST
Isn´t there a Groklaw poster with the theory that SCo just copies IBMs
responses, turnnig them around and uses a s their argument?. This seems to
validate that theory...

[ Reply to This | # ]

Memorandum in Support problems
Authored by: Anonymous on Thursday, November 06 2003 @ 09:08 PM EST
Is the Memorandum in Support a "final" document? There are oversights that would seem to imply that it is merely a draft, such as the footnotes on page 10:
1. Initial answers attached as Exhibit ____.
2. See page 9 of Letter dated September 15, 2003 attached as Exhibit ___.
And so on. If they only used LaTeX, it would have warned them about dangling references...

The funniest line has to be at the bottom of page 8, because we know who has the theories that don't match the facts, and it is not IBM:

IBM is not legally entitled to limit the scope of this case by producing only documents that match its own theories or defense of the case.

SCO also complains that IBM has provided a list of names without noting to which files each contributed. Funny, I seem to recall IBM complaining about being given the entire Linux code base without being told which files and lines were infringing. SCO also demands every version of AIX ever produced; that would certainly be more than the 100,000 pages IBM has already delivered.

[ Reply to This | # ]

SCO's Motion to Compel and Memorandum in Support on Pacer
Authored by: Anonymous on Thursday, November 06 2003 @ 09:13 PM EST
Is it just me or did Mr. McBride once tell us that when people want to see AIX
code they come to SCO because SCO "owns" AIX? I'll have to check
the quote database; otherwise, I hope someone could unearth that interview. If
folks come to SCO to see AIX code, then why are they so hard up for IBM to give
them a copy?

[ Reply to This | # ]

Can I request anything in discovery?
Authored by: Anonymous on Thursday, November 06 2003 @ 09:29 PM EST
This seems like a lot of information they are not entitled to. Design documents
for their proprietary code? Can I sue MS and ask for all their source code in
the discovery process? This seems a bit radical...but I don't understand law.

[ Reply to This | # ]

SCO's Motion to Compel and Memorandum in Support on Pacer
Authored by: Anonymous on Thursday, November 06 2003 @ 09:32 PM EST
My reading of SCO's request leads me to believe that, indeed, SCO's current
argument is that IBM's extensions to AIX, not part of SVr4, are what ended up
in Linux. They say that these 'derivative works' need to be treated as if
they were part of the original SVr4 -- that is -- that they cannot be
disclosed.

It would be interesting to see what IBM sent to SCO. They say that they sent
the 'base operating system' for several versions of AIX and Dynix. I wonder if
these include the extensions written by IBM and Sequent? It would seem to me
that RCU, say, would be part of the 'base operating system', but opinions may
differ.

SCO also says that not all of IBM's contributions to Linux are public, only the
ones that were accepted are public. I don't believe that this is the case -- I
would think that all submissions would have been public at least to the LKML.

As for the list of names, it would appear that IBM will have to present more
than just an alphabetic list of 7,200 names. Sounds burdensome, but probably
not overly so.

thad

[ Reply to This | # ]

SCO's strategy and problem
Authored by: Anonymous on Thursday, November 06 2003 @ 09:50 PM EST
OT: Does anybody (PJ?) have the Addendum to IBM Reply to SCO Response to IBM
Motion to Compel Discovery. I would really like to see this. Post a link if you
have one, please.


IANAL IMHO

The major problem with this motion is it doesn't identify what is a
"method" etc. (I have no comment on the names thing etc., at this
time).

IMHO SCO's strategy might be: They want IBM to say X added/disclosed the method
for Y, and then SCO will say ah-ha - that's our method!

IMHO IBM have already anticipated this strategy. Check their 10/1 filing
carefully for example.

IMHO, another problem for SCO, is IBM is ahead in the queue with their own
motion.

I am not sure whether even if SCO's strategy was successful, whether any
evidence that they find will be admissable, because they haven't previously
specifically identified as it as their trade secret or a trade secret
misappropriated by IBM. Check the cases IBM has already cited, IMHO, IBM knew
what they were doing.


[ Reply to This | # ]

  • People list - Authored by: Anonymous on Thursday, November 06 2003 @ 10:17 PM EST
SCO's Motion to Compel and Memorandum in Support on Pacer
Authored by: Anonymous on Thursday, November 06 2003 @ 09:51 PM EST
I think I have figured out something really important about the argument behind
SCO's Reply Memorandum in Support of IBM's Motion to Compel Disovery, SCO's
own Motion to Compel Discovery, and its whole strategy in the case.

Since back in, I think it was February, SCO has been saying, "We have a
team of MIT experts that has been looking through Linux. They have discovered a
million lines of code that belong to us or that we at least have legal control
over. IBM illegally gave that code to Linux, and so we are suing them."

So the way they presented it in public was that the case all came out of what
their code-detectives team allegedly discovered. With that in mind, you would
expect that those findings would be the heart of their case against IBM. But if
you look through their Amended Complaint, you don't find that argument. In
fact, they don't make any mention at all of the team and what they allegedly
found.

Instead they make two arguments. One is the claim that Linux could not have
gotten so good if it didn't get a ton of help from IBM. The other is they have
a bunch of quotes (paragraphs 90-97) in which IBM talks about all the things it
is contributing to Linux. By leaving out the the code-detectives team, they
pretend that SCO never did the code investigation that they keep talking about
to the media.

So what they are trying to persuade the Judge is that the only way they know
that IBM did something illegal is not that they, SCO, discovered the code in
Linux, but that IBM stated so publically. This explains their argument for
refusing IBM's discovery requests, and also explains the strange discovery
requests that SCO is making of IBM: "We know that IBM gave Linux a bunch
of our code, but we don't know specifically what code it is. All we know is
that IBM said it did it. So when IBM demands us to tell them specifically what
code in discovery, we can't answer because we don't know. The only way we can
find out is if IBM turns over to us in discovery the code that they illegally
gave to Linux."

There are, of course, several things wrong with this argument. One is pretending
they never did the code study. Secondly, the ammendment letter makes it very
dubious they have any rights over the code that IBM wrote. Also, in the
Ammended Complaint they claim that IBM gave Linux SVR4 code, but if they did,
SCO could just look for it in the Linux source code.

And of course, even if SCO could get out of revealing what it found as part of
its case against IBM, there is still the countersuit where IBM says SCO
has damaged its business through public statements about what the
code-detective team allegedly found. That alone certainly gives IBM the right
to look at it.

Still, I think this is SCO's basic position and it is how they are arguing in
their response to IBM's Motion to Compel Discovery.

[ Reply to This | # ]

The usual question?
Authored by: Anonymous on Thursday, November 06 2003 @ 09:53 PM EST
Where is Boies?

[ Reply to This | # ]

Novell-SuSE
Authored by: Anonymous on Thursday, November 06 2003 @ 09:55 PM EST
Interesting article on legal implications of the Novell purchase of SuSE: zdne t

[ Reply to This | # ]

  • Novell-SuSE - Authored by: Anonymous on Thursday, November 06 2003 @ 10:24 PM EST
    • Novell-SuSE - Authored by: J.F. on Thursday, November 06 2003 @ 11:26 PM EST
  • Novell-SuSE - Authored by: Thorsten on Friday, November 07 2003 @ 05:13 AM EST
Buy Us -- Please!
Authored by: Anonymous on Thursday, November 06 2003 @ 10:04 PM EST
It looks to me that SCO wants a detailed history of each line of AIX and Dynix code along with a work log of each of 7200 some people who came near same. Imagine doing the same with Linux; multiply by the lawyer's rate of $300/hour and you can see what SCO is asking for. Given that they have no case (still haven't identified a single line of infringing code in Linux), this is an appropriate tactic for the desperate.

[ Reply to This | # ]

These are some HORRIBLE Ints.
Authored by: rigorist on Thursday, November 06 2003 @ 10:05 PM EST
IBM has done a ton of work on Linux. IBM has done a ton of work on AIX. Thus,
the list of employees who worked on these OSes will be huge.

Further, SCO asks IBM to identify EVERYONE who had access to SVr4 source. Not
just people at IBM who had access, everyone. This is a HUGE list!

SCO deserves to get the dumptruck treatment. It is only getting answers to the
questions it asked.

[ Reply to This | # ]

Security Clearance
Authored by: Anonymous on Thursday, November 06 2003 @ 10:12 PM EST
Do SCO's attorneys have the requisite security clearance to examine the
versions of AIX running ASCI computers at LLNL and LANL?

Who's going to pay for the FBI background checks?

[ Reply to This | # ]

SCO's Motion to Delay
Authored by: gumout on Thursday, November 06 2003 @ 10:13 PM EST
This is the Tenth Circuit Court of Appeals on FRCP 37(b) in
Archibeque v. Atchison, Topeka and Sante Fe Rwy. Co.:

http://www.law.emory.edu/10circuit/nov95/94-2215.html

"This circuit has provided a framework of factors that should ordinarily
be considered by a trial court prior to dismissal. See Mobley, 40 F.3d at 340;
Ehrenhaus, 965 F.2d at 921. We have, however, recognized that these factors are
not a "rigid test," and that determining the correct sanction is a
fact specific inquiry that the district court is in the best position to make.
Ehrenhaus, 965 F.2d at 920-21.

The factors mentioned above relevant to this inquiry include"(1) the
degree of actual prejudice to the defendant; (2) the amount of interference with
the judicial process; (3) the culpability of the litigant; (4) whether the court
warned the party in advance that dismissal of the action would be a likely
sanction for non-compliance; and (5) the efficacy of lesser sanctions."
Id. at 921 (citations omitted). These factors are ordinarily evaluated on the
record. Id."

My reveiw of some of the "discovery war" cases in the Tenth Circuit
show delays of several years but seems to be magistrate dependant.

For example:

http://cyber.law.harvard.edu/digitaldiscovery/library/preservation/gates.html

I believe in the SCO case the scheduling of oral arguments show determination on
the part of the Court not to allow unreasonable delay.

---
"If people are violating the law by doing drugs, they ought to
be accused and they ought to be convicted and they ought to
be sent up." --- Rush Limbaugh

[ Reply to This | # ]

What's the damage?
Authored by: mflaster on Thursday, November 06 2003 @ 10:15 PM EST
I have a question. Let's say that the court rules in SCO's favor, and says that AIX, while still owned by IBM, was not allowed to be disclosed by IBM as part of their contract with SCO.

So what kind of damage claims can they make? If I make a contract with you that you won't disclose your own trade secrets, is that defensible? How am I damaged if you disclose your secrets??

Mike

[ Reply to This | # ]

IBM's plan proceeds
Authored by: rgmoore on Thursday, November 06 2003 @ 10:21 PM EST

I think that this document does a lot to reinforce the idea that IBM is pushing for an early decision on key matters of the case. In their own motion to compel, they've made it clear that they think that SCO can find any possible violations by looking at SysV code, since that's the only thing that SCO's contract protects. Now they're refusing to respond to SCO's discovery requests that involve anything beyond literal copying of SysV code. It seems clear that they want to force the judge to decide whether the AT&T side letter and Ammendment X have the plain meaning that they seem to (i.e. IBM only has to protect the original SysV code) or whether SCO's incredibly expansive view (i.e. All Your Code Are Belong To Us) is correct.

---
Behind every sleazy lawyer, there's a sleazy client.

[ Reply to This | # ]

IBM's motions
Authored by: skidrash on Thursday, November 06 2003 @ 10:27 PM EST
Why has IBM not made huge hay out of Amendment X and the side letter that
Sequent got?

If SCO is allowed to spout forth about one small part of the contracts why is
IBM not allowed to answer back with
1. the USL v bsd settlement
2. Amendment X
3. the depositions
4. Sequent's side letter

And don't Amendment X and the side letter support each other and are in turn
supported by the Bond/Wilson depositions, which added significant meaning to
X/Side letter?

[ Reply to This | # ]

My favorites
Authored by: Anonymous on Thursday, November 06 2003 @ 10:57 PM EST
"It cannot simply assert that responding to the document
request is unduly burdensome." -- didn't SCOG try this
against Red Hat???

"Plaintiff contends that IBM failed to treat AIX as required
under the Software Agreement by, among other things,
contributing source code and confidential methods for
developing UNIX/AIX to Linux. This is a central issue in the
case." -- if memory serves correctly, didn't SCOG claim
that IBM was mis-characterizing the case and that even in
the absence of IP infringment the case would still go on???
How is it now suddenly "central" to the case...

"The court should order IBM..." -- umm... is it standard to
tell the court what to do? I need to re-read IBM's motion to
compel and see if they use that line...

[ Reply to This | # ]

Can the Judge simplify this?
Authored by: arch_dude on Thursday, November 06 2003 @ 11:08 PM EST
As I see it, we are now in the following situation:

--SCO's only possible legal theory, however weak, is based on an expansive
definition of derivative works applied to the Sequent license (SOFT-000321.)

-- SCO has attempted to hide this theory in a huge smokescreen of other specious
claims.

-- SCO's business plan is based on delaying this lawsuit.

-- SCO really does have a legitimate reason to ask for certain DYNIX/ptx and AIX
code and documents relating to its development in support of the theory.

-- Because of the smokescreen, IBM has no way to know which documents are truly
relevant.

-- Because SCO is being deliberately vague, the amount of discovery data is at
least a factor of 1000 larger than what it needs to be.

BUT:
If the judge grants the motion to compell, the entire discovery process becomes
much more complex and takes a lot longer, which is exactly what SCO really
wants.

IANAL, but I think the judge needs to step in and tell SCO to expose their
theory explicitly, to reduce the discovery burden, as a matter of equity. Is
there a legal mechanism to justify a simple commonsense directive of this sort?

For example, the Judge could invoke the rule that the complaint must be plain
and simple, to remove the smokescreen.

[ Reply to This | # ]

SCO's Motion to Compel and Memorandum in Support on Pacer
Authored by: Bored Huge Krill on Thursday, November 06 2003 @ 11:11 PM EST
I'm not a lawyer, and I'd appreciate some clarification, if anybody suitably qualified would be so kind as to help me out here...

It seems that everything is as many of us had expected: TSG is asserting that the "confidential information" that they allege IBM improperly divulged is that created entirely by IBM, and which they allege is a derivative work that they further allege is now the property of TSG. Importantly, TSG appears to claim that this "confidential information" is not, and never has been, in the possession of TSG.

TSG is asserting that it can use discovery not to obtain evidence of their allegations, but to determine what their allegations actually are. This seems to be the basis of their "you first" approach to discovery. IBM is asking TSG to specify what their allegations are, and TSG is claiming that they can't until IBM provide them with all of their code, the names of anybody who has either seen it or produced it, and everything they have ever told anybody else about anything. When they have seen it, then they will produce an allegation (or maybe not).

Here's my question: can TSG do that? Do they not have to make an allegation, with reasonable specificity before initiating a lawsuit and accompanying discovery, and then use discovery only to provide evidence of those allegations? Or are they permitted to launch what they now seem to be claiming is an entirely speculative lawsuit on some as yet unstated belief that they will discover what it is they are alleging during discovery? Sounds bizarre to me.

Like I said, I'm not a lawyer. But I'd be quite disturbed if TSG is correct here. Can anybody help me out?

Krill

[ Reply to This | # ]

Treat me like a fool...
Authored by: gumout on Thursday, November 06 2003 @ 11:46 PM EST

SCO is arguing "treated as part of the original [UNIX System V] Software
Product" means "to deal with in the same manner in which [UNIX
System V] Software Products are treated" and does not refer to combining
the work into "[UNIX System V] Software Product" in the sense of
ownership.
Were this true, then Exhibit C stipulating "ownership" would not
contradict Exhibit A. That's why they refuse to mention Exhibit C.

treat --- "to regard and deal with in a specified manner --- usu. used
with as" --- Webster's Ninth new Collegiate Dictionary.

as --- Used as an adverb, etc., means like, similar to, of the same kind, in the
same manner in which. --- Black's Law Dictionary Fifth Edition

Unfortunately for SCO "part" as legally defined refutes the
"like" comparative argument. The words "integral
portion", "belonging to" and "makes up a whole"
are not comparative constructions they are inclusive constructions. The
"like" construction compares things as "similar". The
"part" construction can only mean "inclusion into one greater
whole"

part --- An integral portion; something essentially belonging to a larger whole;
that which together with another or others makes up a whole. --- Black's Law
Dictionary Fifth Edition

Because of the word "part" there can be no mistake that the original
Exhibit A language was understood to mean "became part of" in the
sense of ownership. Exhibit C then conflicts with and hence replaces the
conflicted language in Exhibit A.

---
"If people are violating the law by doing drugs, they ought to
be accused and they ought to be convicted and they ought to
be sent up." --- Rush Limbaugh

[ Reply to This | # ]

Isn't this obvious to anyone else?
Authored by: sam on Thursday, November 06 2003 @ 11:55 PM EST
The SCO have the unix code, methods, ways etc. and they have the Linux code,
methods, ways, etc. and niether they nor anyone else can see any Unix
"stuff" in Linux, then even on the outside chance there were
infringement, by definition, isn't all of the Unix "stuff" ....
still ..... "confidential"?

[ Reply to This | # ]

Objections from third parties?
Authored by: whoever57 on Friday, November 07 2003 @ 12:03 AM EST
What if one or more of those parties that IBM is now notifying decides to step
in and object to it's code being disclosed?

---
-----
For a few laughs, see the scosource.com website

[ Reply to This | # ]

SCO's Motion to Compel and Memorandum in Support on Pacer
Authored by: Anonymous on Friday, November 07 2003 @ 12:03 AM EST
I always like SCO's:
"We have poured a lot of money into this swampland so everyone owes
us."

[ Reply to This | # ]

Thoughts after a re-read:
Authored by: sam on Friday, November 07 2003 @ 12:28 AM EST
It seems apparent that SCO is hanging their hopes on the notion that somewhere,
somehow, IBM failed in their "clean room" development of derivitive
code, that tainted code and not verbatim code has been contributed to Linux and
all they have to do is find it. (And they want IBM to help.)

[ Reply to This | # ]

SCO's Motion to Compel and Memorandum in Support [HTML FORMAT]
Authored by: the_spide on Friday, November 07 2003 @ 01:46 AM EST
Well here goes... I have a new found respect for people who OCR and format
the texts we see here.

All typos not found in the original are a mine.  Refer
to the PDF for the original text.

Any comments welcome.


Regards,
The_Spide

ps: <HR> is used to deliminate pages

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

THE SCO GROUP, INC., a Delaware corporation,
Plaintiff,

vs.

INTERNATIONAL BUSINESS MACHINES CORPORATION, a New York corporation,
Defendant.

PLAINTIFF'S MEMORANDUM IN SUPPORT OF ITS MOTION TO COMPEL

Case No. 2: 03-CV-0294DK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

Plaintiff The SCO Group, Inc. ("SCO"), submits this Memorandum in Support of its Motion to Compel. The motion to compel centers around four core categories of discovery that IBM has refused to produce or has produced inadequately: (1) source code for all of IBM's versions of UNIX (known as "AIX"), together with all notes and documentation for the software development methods used in the design and modification process; (2) source code for all of Sequent's version of UNIX (known as "Dynix"), together with all notes and documentation for the software development methods used in the design and modification processes; (3) all contributions by IBM to Linux; and (4) proper identification of the approximate 7,200 potential witnesses identified by IBM. IBM's discovery responses address only part of the information requested. Complete discovery responses should be required of IBM without further delay.

IBM also has failed to respond adequately to several additional requests for production and interrogatories not identified in this motion to compel. Plaintiff is awaiting responsive documents IBM has agreed to provide and, if not provided, will meet and confer about deficient outstanding discovery requests before moving to compel with respect to those additional discovery requests.

STANDARD OF REVIEW

Relevancy is construed more broadly during discovery than at trial. Centurion Industries, Inc. v. Warren Steurer & Associates, 665 F.2d 323, 326 (l0th Cir. 1981). During discovery, a request "should be considered relevant if there is ?any possibility' that the information sought may be relevant to the claim or defense of any party," Sheldon v. Vermonty, 204 F.R.D. 679, 690-691 (D.Kan. 2001) (internal citations and quotations omitted), and should be allowed "unless it is clear that the information sought can have no possible bearing on the claim or defense of a party." Id. In other words, if a request for discovery appears relevant, "the party resisting discovery is obligated to show the requested discovery is outside the scope of Rule 26(b)(l) or is of such marginal relevance that the liberal disclosure required by Rule 26 is outweighed by the potential harm of disclosure." City of Wichita v. Aero Holdings,192 F.R.D. 300, 302 (DJCan. 2000).

Likewise, a party claiming that a request for discovery is unduly burdensome has the obligation "to provide sufficient detail and explanation about the nature of the burden in terms of time, money and procedure which would be required to provide the requested information" to enable the Court to make an appropriate determination. Airport Systems Inti', Inc., v. Airsys ATM, Inc., 2001 WL 1718274 at *8 (D.Kan. May 16, 2001). In this regard, courts have observed that a business entity "may retain millions of documents in various locations, yet have the ability readily and economically to locate documents either about a specific topic of from which the absence of such information may be assumed." Cotracom Commodity Trading Co. v. Seaboard Corp.,1998 WL231135 (D.Kan. May 6, 1998).

Similarly, a party objecting to discovery as vague or ambiguous has the burden to show such vagueness or ambiguity. Airport Systems Inti', Inc., v. Airsys ATM, Inc.,2001 WL 1718274 at *9 (D.Kan. May 16, 2001). It may do so, for example, by describing the different meanings it perceives the term or terms to have, and how the alternative meanings may have caused its confusion. Id. It cannot simply assert that responding to the document request is unduly burdensome. Id. at *8.

ANALYSIS OF DEFICIENT RESPONSES

The following responses by IBM are deficient:

Request No. 2

All versions or iterations of AIX source code, modifications, methods and/or derivative works from May 1999 to the present, including but not limited to version 4.3 and above.

IBM's Response:

In addition to the foregoing objections, IBM objects specifically to this Request on the grounds that it is overbroad and unduly burdensome. IBM also objects to this Request on the grounds that it is vague, ambiguous, and unintelligible with respect to the phrase "modifications, methods, and/or derivative works". Subject to, as limited by, and without waiving the foregoing general and specific objections, IBM will produce a copy of the source code for AIX version 4.3.3 and AIX version 5.2 [emphasis added].

In addition to this formal discovery response, IBM delivered a letter to Plaintiffs counsel on October 10, 2003, attempting to further qualify its formal discovery responses. To provide a complete record and to avoid potential claims of waiver by IBM related to the subject matter of each discovery request, Plaintiff has included the relevant portions of that letter in this motion to compel. With respect to Request No. 2, IBM's October 10, 2003 letter states as follows:

IBM's Oct. 10, 2003 letter:

My e-mail to you of October 8 addressed the open issues regarding these requests. As detailed in that note, IBM will commence production of source code for the AIX and Dynix base operating systems once the process for notification of third parties (as specified in Paragraph 10 of the Stipulated Protective Order) is exhausted. Response to Requests Nos. 2 and 3.

Deficiency:

IBM has created numerous different versions of AIX during the requested time frame, but it offers to produce only the final "base operating systems" for versions 4.3.3 and 5.2. This is inadequate. IBM licensed UNIX System V from AT&T in 1985. Pursuant to license terms, it was entitled to create derivative works and modifications based on UNIX System V technology, "provided that the resulting materials are treated as part of the original [UNIX System V] Software Product." [Software Agreement §2.01.] It is undisputed that IBM created derivative works and modifications of UNIX System V known in the industry as "AIX." Plaintiff contends that IBM failed to treat AIX as required under the Software Agreement by, among other things, contributing source code and confidential methods for developing UNIX I AIX to Linux. This is a central issue


in the case. See, e.g.,¶¶ 91-97, 110-115 of Plaintiffs Amended Complaint. Plaintiff is entitled to the production of all modifications and versions of AIX created over the years in order to analyze the ways in which AIX has changed and the ways in which its structures, methods and information based on UNIX have evolved. The evidence adduced from this discovery is likely to identify evidence of infringement and/or contract violations by IBM by improper contributions of such items to Linux. IBM is apparently trying to avoid this critical discovery by purporting to produce only the "base operating systems" of AIX versions 4.3.3 and 5.2.

IBM further claims, in its October 10, 2003 letter, that a "third-party notification process" must be exhausted before it will turn over the relevant source code. It was clear to both parties, from the beginning of this case, that it would be necessary to run various source code comparisons, including AIX and Dynix code. These are lengthy and detailed processes, and need to begin as soon as possible. In IBM's response filed over two and one-half months ago on August 13, 2003, it referenced the need to obtain third party consents. On September 15, 2003, after repeated inquires by SCO, IBM again mentioned the need for "a substantial number of third-party notifications prior to production." On October 1, 2003, IBM represented that "[w]e're working on that process [of third-party notifications] now." Further prodding by SCO has revealed that IBM did not begin the process of notifying third parties until some time during the week of October 21. As a result, IBM now claims that it cannot turn over the code it promised in August until Thanksgiving. The Court should order IBM to identify and produce all versions and modifications of AIX from May 1999 to the present date, including development and design methods of AIX and notes relating thereto, without further delay.


Request No. 3

All versions or iterations of Sequent Dynix source code, derivative works, modifications, and/or methods from January 1999 to the present.

IBM's Response:

In addition to the foregoing objections, IBM objects specifically to this Request on the grounds that it is overbroad and unduly burdensome. IBM also objects to this Request on the grounds that it is vague, ambiguous, and unintelligible with respect to the phrase "modifications, methods, and/or derivative works". Subject to, as limited by, and without waiving the foregoing general and specific objections, IBM will produce a copy of the source code for the base operating system of Dynix Version 4.1.10, Dynix Version 4.5.3, and Dynix Version 4.6.1 [emphasis added].

IBM's Oct. 10, 2003 letter:

My e-mail to you of October 8 addressed the open issues regarding these requests. As detailed in that note, IBM will commence production of source code for the AIX and Dynix base operating systems once the process for notification of third parties (as specified in Paragraph 10 of the Stipulated Protective Order) is exhausted. Response to Requests Nos. 2 and 3.

Deficiency:

The same deficiencies found in IBM's response to Request No. 2 also apply here. "Dynix" is a software operating system developed by Sequent Computer Company ("Sequent") that is also a modification and derivative work based on UNIX System V. Sequent licensed UNIX System V technology from AT&T in 1986. IBM has since merged with Sequent, and became obligated under the Sequent Software Agreement with respect to its use and treatment of Dynix. Pursuant to the licensing provisions of the Software Agreement, Sequent also was entitled to make modifications and derivative works based on UNIX System V, again "provided that the resulting materials are treated as part of the original [UNIX System VJ Software Product" under the Software Agreement. Plaintiff contends that IBM failed to treat Dynix as required under the Software Agreement by, among other things, contributing source code and confidential methods for developing UNIX /


Dynix to Linux. This is a central issue in the case. See, e.g., ¶¶ 139, 141-144 of Plaintiffs Amended Complaint. Plaintiff is entitled to production of all modifications and versions of Dynix created over the years to analyze the ways in which Dynix has changed and the ways in which its structures, methods and information based on UNLX have evolved. The evidence adduced from this discovery is likely to identify evidence of infringement and/or contract violations by IBM. IBM is apparently trying to avoid this critical discovery by purporting to produce only the "base operating systems" of Dynix versions 4.1.10, 4.5.3 and 4.6.1. The Court should order IBM to identify and produce all versions and modifications of Dynix from January 1999 to the present date, including development and design methods of Dynix and notes relating thereto, without further delay.

Request No. 11

All contributions made without confidentiality restrictions by IBM or anyone under its control including, but not limited to, source code, binary code, derivative works, methods, and modifications to Open Source Development Lab, Linus Torvalds, Red Hat or any other entity.

Response:

In addition to the foregoing general objections, IBM objects specifically to this Request on the grounds that it is overbroad, unduly burdensome, and seeks information that is irrelevant and not reasonably calculated to lead to admissible evidence. The Request seeks "contributions" unrelated to UNIX System V source code. IBM also objects to this Request on the grounds that it is vague and ambiguous in its use of the phrase "any other entity," and it is vague, ambiguous, and unintelligible in its use of the terms "derivative works, methods, and modifications." IBM further objects to this Request on the grounds and to the extent that open-source contributions made by IBM are publicly available and as accessible to plaintiff as to IBM. Subject to, as limited by, and without waiving the foregoing general and specific objections, IBM, after a search of reasonable scope, will produce non- privileged documents, if any, responsive to this Request relating to UNIX System V source code [emphasis added].


IBM's Oct. 10, 2003 letter:

Your request, even as narrowed, remains overly broad and unduly burdensome. Until SCO specifies the wrongful contributions IBM has allegedly made to Linux in violation of SCO's alleged confidentiality rights, it is very difficult to make a reasonable assessment as to the proper scope of discovery in this case. In the absence of that clarification, we have nevertheless attempted to conduct a reasonable search for documents that relate to IBM's open-source contributions to Linux. The vast majority of those contributions are made through the LTC; the OSSC is the corporate clearinghouse for those contributions. Our searches to date have thus included individuals on both of those groups, as well other potential sources of documents relating to IBM's contributions to Linux that have come to our attention. We are not limiting our searches to any particular geographic area -- indeed, they have already included individuals residing in Beaverton, OR, Austin, TX, and a variety of other IBM locations. Our efforts to identify and collect documents responsive to this request are continuing, and we believe will be facilitated by adequate answers to our interrogatories. Response to Request No. 11.

Deficiency:

This response is deficient for two reasons. First, it is not proper to withhold production of IBM's contributions to Linux on the grounds that such contributions are publicly available because only contributions actually incorporated into Linux are publicly available. All contributions made or offered by IBM to Linux, some of which are publicly available and some of which are not, need to be identified in order to properly trace IBM's Linux-related activities and the ways in which it has infringed and/or breached its obligations to Plaintiff through the Linux development process.

The second deficiency in IBM's response is far more problematic. IBM states that it will produce UNIX System V source code contributed by IBM to Linux. This is not responsive to the request and is unduly restrictive with respect to the issues in the ease. IBM is obligated under its contract to treat both AIX and Dynix as part of the original System V Software Product. Contributions to the public by IBM of AIX and Dynix source code and methods related to development thereof are violations of contract and/or infringing conduct. IBM is not legally


entitled to limit the scope of this case by producing only documents that match its own theories or defense of the case. Consistent with the allegations made against IBM, it should be required to identify and produce all of its contributions and development work in Linux.

Interrogatory No. 2

List the names and addresses of all persons who are believed or known by you, your agents, or your attorneys to have any knowledge concerning any of the issues of this lawsuit; and specify the subject matter about which the witness has knowledge.

IBM's Response:

In addition to the foregoing general objections, IBM objects specifically to this Interrogatory on the grounds that it is overbroad, unduly burdensome, and does not identify with reasonable particularity the "issues of this lawsuit." Based upon the general allegations of plaintiffs complaint, many thousands of current and former employees of plaintiff, IBM, AT&T, USL, Novell, and The Santa Cruz Operation could have knowledge about this lawsuit. Until plaintiff identifies with specificity the code or other alleged trade secrets or confidential information which it claims IBM misappropriated, IBM is unable to determine fully which persons have knowledge concerning "the issues of this lawsuit". Subject to, as limited by, and without waiving the foregoing general and specific objections, IBM provides, as Attachment A, the names of current and former IBM officers and employees who may have knowledge concerning certain issues in this lawsuit, and specifies the subject matter about which each person may have knowledge. A current business address is provided for current TBM officers and employees, and the last known home address, if available, is provided for former IBM employees. The names of current IBM officers and employees are underlined, and any communications with those persons should be made only through IBM counsel. IBM's First Supplemental Responses and Objections to SCO's First Set of Interrogatories [emphasis added].

Deficiency:

This response is inadequate. The interrogatory asks for the identity of all persons with knowledge, yet Attachment A lists only IBM employees and former employees. This effort to limit the scope of the question is contrary to IBM's original answer, particularly since the parties agreed to waive the Rule 26 disclosures of such information because each side had asked for that information in discovery. In its original answer, IBM stated, among other things, that it "will identify persons who are known by IBM to have discoverable information. . . ."1 The parties then had an extensive discussion about this interrogatory and other items, which was followed by various letters and e-mails. In that correspondence, IBM discussed that it had "undertaken to identify IBM officers and employees believed to have knowledge about the issues in this lawsuit and expect to amend our answer to this interrogatory as soon as practicable."2 It was thus believed that these persons at IBM would be contacted and a responsive answer submitted. In a follow-up letter, SCO mentioned that it was expecting the identity of each of the officers and directors that would have knowledge.3 At that point, there had been a question of whether IBM's answers would include directors, which IBM clarified that it would. From that point, however, IBM has taken the position that it need only identify current and former employees of IBM with knowledge of the case. That view is incorrect. Rather, just as SCO did when it provided its supplemental answer to a similar question, IBM needs to supplement Attachment A to include non-IBM persons.

An additional defect is that Attachment A omits persons obviously known by IBM to have knowledge of the issues of this case, for example, IBM's CEO, Sam Palmisano. Mr. Palmisano is publicly identified as one of IBM's key Linux advocates. A serious question exists as to which other IBM persons, besides Mr. Palmisano, have been improperly omitted from the designation in Attachment A 4.

1 Initial answers attached as Exhibit ________.
2 See page 9 of Letter dated September 15,2003 attached as Exhibit ________.
3 See page 6 of Letter dated September 22, 2003 attached as Exhibit ________.
4 It does not appear that IBM's supplemental answer includes any directors of IBM, the very subject of the repeated calls and correspondence.


Interrogatory No. 4

Identify all persons who have or had access to UNIX source code, AIX source code and Dynix source code, including derivative works, modifications, and methods. For each such person, set forth precisely the materials to which he or she had access.

IBM's Response:

In addition to the foregoing general objections, IBM objects specifically to this Interrogatory on the grounds that it is overbroad, unduly burdensome, and seeks information that is irrelevant and not reasonably calculated to lead to admissible evidence. IBM also objects to this Interrogatory on the grounds that the phrase "derivative works, modifications, and/or methods," as used in this Interrogatory, is vague, ambiguous, and unintelligible. IBM further objects to this Interrogatory as overbroad to the extent it seeks the identification of "all" persons who have had access to the subject source code and information. Subject to, as limited by, and without waiving the foregoing general and specific objections, IBM provides the following, based upon a reasonable search of IBM's records: a list of persons (including current and former IBM employees, IBM contractors and employees of IBM vendors) who may have or may have had access either to AIX source code or to AIX change and fix records (Attachment B); a list of persons at IBM who may have current access to Dynix code (Attachment C); and a list of persons (current and former IBM employees) who may have or may have had access to Unix System V source code (Attachment D). IBM's First Supplemental Responses and Objections to SCO's First Set of Interrogatories [emphasis added].

Deficiency:

IBM's response is inadequate because it fails to provide information sufficient to evaluate the list of names it provided. Attachment B is an alphabetical list of over seven thousand names, without more. IBM needs to provide the same level of detail, including contact information, about the persons identified in Attachment B as is contained in Attachment A to the extent such information is in IBM's possession, custody or control. Without such information, Plaintiff cannot meaningfully evaluate the identities of the approximately 7,000 persons listed in Attachment B. Attachment D suffers from the same deficiency as Attachment B -- that is, the same level of detail provided in Attachment A should also be provided in Attachment D, to the extent such information


is in IBM's possession or control. Attachment C suffers from the same deficiency as Attachments B and D, but also has an additional deficiency in that it is limited to current IBM employees. IBM merged with Sequent Computer Company in or about 1999-2000. Therefore, it has in its possession, custody or control the business records of Sequent and should be able to fully respond to this interrogatory. Plaintiff is entitled to discovery that discloses the identity of all current and former IBM / Sequent employees who had access to Dynix.

Interrogatory No. 5

Identify all IBM or Sequent personnel that work or worked on developing source code, derivative works, modifications or methods for AIX, Dynix and Linux, specifying for each person their precise contributions to each.

IBM's Response:

In addition to the forgoing general objections, IBM objects specifically to this Interrogatory on the grounds that it is overbroad, unduly burdensome, and seeks information that is irrelevant and not reasonably calculated to lead to admissible evidence. IBM also objects to this Interrogatory on the grounds that the phrase "derivative works, modifications, and/or methods," as used in this Interrogatory, is vague, ambiguous, and unintelligible. IBM further objects to this Interrogatory as overbroad to the extent it seeks the identification of "all" persons who have worked on developing the subject source code and information. Subject to, as limited by, and without waiving the foregoing general and specific objections, IBM provides the following, based upon a reasonable search of IBM records: a list of persons (including current and former IBM employees, IBM contractors and employees of IBM vendors) who may have or may have had access either to AIX source code or to AIX change and fix records (Attachment B); a list of persons at IBM who may have current access to Dynix code (Attachment C); and a list of persons (including current and former IBM employees) who may have made contributions to Linux (Attachment E). IBM's First Supplemental Responses and Objections to SCO's First Set of Interrogatories.

Deficiency:

This interrogatory did not request IBM to list persons who had access to source code, as did Interrogatory No. 4, but rather those who "work or worked on developing source code, derivative


works, modifications or methods for AIX, Dynix and Linux." The lists may overlap to the extent, for example, that someone who is developing code for AIX would necessarily have access to some AIX source code, but it does not necessarily follow that all persons who had access to AIX source code actually worked on its development. Since the lists are, by definition, not coextensive, Attachments B and C are deficient.

Attachment B is a list of approximately seven thousand names, in alphabetical order. IBM describes this list as containing the names of persons "who may or may have had access" to AIX source code. ft says nothing about the files to which they contributed, nor does it provide any contact information. Attachment C is a list of fifty-one names, in alphabetical order. IBM describes this list as containing the names of persons "who may have current access to Dynix code." It says nothing about the files to which they contributed, nor does it provide any contact information. Attachment E, although closer to the mark, is also deficient. It lists the names of approximately two hundred and sixty persons, also in alphabetical order, "who may have made contributions to Linux." (emphasis added). The list does not specify to which files these persons contributed, if any, nor does it provide any contact information.

The referenced attachments provide no other information than the names themselves. They are not responsive to the most important part of the interrogatory, and as such they are nearly useless as a starting point for further discovery.

CONCLUSION

For the foregoing reasons, SCO respectfully requests that IBM fUlly and completely respond to the identified discovery requests.


DATED this 4th day of November, 2003.

Respectfully submitted,

By: ____________

HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James
BOlES, SCHILLER & FLEXNER, L.L.P.
Stephen N. Zack
Mark J. Heise
Counsel for Plaintiff/Counterclaim defendant


CERTIFICATE OF SERVICE

Plaintiff, The SCO Group, Inc. hereby certifies that a true and correct copy of PLAINTIFF'S MEMORANDUM IN SUPPORT OF ITS MOTION TO COMPEL was served on Defendant International Business Machines Corporation on this 4th day of November, by Hand Delivery and U.S. Mail, first class, postage prepaid, on their counsel of record as indicated below:

Copies by Hand Delivery:

Alan L. Sullivan, Esq.
Todd M. Shaughnessy, Esq.
Snell & Wilmer LL.P.
15 West South Temple, Ste. 1200
Gateway Tower West
Salt Lake City, Utah 8410 1-1004

Copies by U.S. Mail:

Evan R. Chesler, Esq.
David R. Marriott, Esq.
Cravath, Swaine & Moore LLP
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019

Donald J. Rosenberg, Esq.
1133 Westchester Avenue
White Plains, New York 10604

[ Reply to This | # ]

Answers are in the questions
Authored by: Anonymous on Friday, November 07 2003 @ 02:09 AM EST
IANAL

I understood that the purpose of discovery is to find potentially admissable
evidence.

My opinions are based on what I have seen, which is limited. There is obviously
extensive correspondance, which further affects these questions.

A obvious issue "modications, methods, and derivative works",
"issues of this lawsuit", etc. in SCO's questions are undefined.

Anyway, I would have thought that the questions that SCO asked can only generate
admissible evidence to the extent that they are supposed to be about stuff that
SCO alleges is misappropriated. As SCO don't seem precisely sure about what
they think was misappropriated into Linux, there's a problem there.

In others, I think "Identify everything and everybody, and we'll figure
out which might pertain to our claims - which we will tell you later" is
way over broad as compared to a more specific "Give us all the info
relating to what we claim was misappropriated"

[ Reply to This | # ]

They didn't request oral arguments?
Authored by: Anonymous on Friday, November 07 2003 @ 02:16 AM EST
I notice that they didn't seem to request oral arguments

What does this tell us?

Could they be too embarrassed to go in front of the judge with SCO's definition
of derivative works and/or interpretation of the contracts?

Can IBM ask for them in their reply brief?

[ Reply to This | # ]

We can keep this up longer than you can stand it
Authored by: Anonymous on Friday, November 07 2003 @ 02:23 AM EST
A cynic would look at the request to compile pointless lists of contributors to
Linux, and wonder if the true name of the game for SCO's lawyers was to spin
this lawsuit out to maximize the pain to IBM, and so maximize the chance of IBM
buying SCO to "make it stop".... which the lawyers will handsomely
profit from by their dubious agreement with SCO.

[ Reply to This | # ]

And then give us a few years to digest it all...
Authored by: Khym Chanur on Friday, November 07 2003 @ 03:01 AM EST
Plaintiff The SCO Group, Inc. ("SCO"), submits this Memorandum in Support of its Motion to Compel. The motion to compel centers around four core categories of discovery that IBM has refused to produce or has produced inadequately: (1) source code for all of IBM's versions of UNIX (known as "AIX"), together with all notes and documentation for the software development methods used in the design and modification process; (2) source code for all of Sequent's version of UNIX (known as "Dynix"), together with all notes and documentation for the software development methods used in the design and modification processes; (3) all contributions by IBM to Linux; and (4) proper identification of the approximate 7,200 potential witnesses identified by IBM. IBM's discovery responses address only part of the information requested. Complete discovery responses should be required of IBM without further delay.
Good Lord! Millions and millions of lines of code, metric tons of documentation and notes, plus 7,000 people to interview? It'd take them years to go through all that (which is probably the point). Is there any sort of time limit on the time one side gets to "digest" the information gained from discovery? What's the record for the longest amount of time taken to digest discovery info (without the case being thrown out)?

[ Reply to This | # ]

SCO's Motion to Compel and Memorandum in Support on Pacer
Authored by: Anonymous on Friday, November 07 2003 @ 04:51 AM EST
Looks like TSG's lawyers had a cup of coffie before writing this one. Yes,
they copied most of it from IBM, but what can you expect. They at least make
generally coherant comments. I do get a kick out of the "all people
....." thing. One asked for people who had knowlege on the case, no
associatons are put as restrictions. I can't wait to see IBM say, ok... and
then throw Darl and company on the list, as well as Judge Kimball.

Over all, I think that IBM really cannot fully respond til this derivative works
issue is settled.

Thanks for the daily fix PJ.

[ Reply to This | # ]

The Last Word
Authored by: jobsagoodun on Friday, November 07 2003 @ 04:59 AM EST
Isn't this just SCO wanting the last word before the oral hearing?

IBM: Motion to compel
SCO: Reply to motion to compel
IBM: Reply to reply to motion to compel
SCO: Motion to compel!!
IBM: Reply to motion to compel (pretty soon?)
SCO: Reply to reply to motion to compel (just before oral argument?)

So they sneakily get the last word in. Not that I think that will make a great
deal of difference, as the Judge will probably find them in contempt, and
hopefully sentence them to 1000 lashes.

[ Reply to This | # ]

  • Exactly - Authored by: Anonymous on Friday, November 07 2003 @ 07:29 AM EST
Memorandum pages 7-8
Authored by: chep on Friday, November 07 2003 @ 05:06 AM EST
Page 7:
IBM's Response...Subject to, as limite by, and without waiving the foregoing general ans specific objects, IBM, after a search of reasonable scope, will produce non-privileged documents, if any, responsive to this Request relating to UNIX System V source code[emphasis added by SCO]
Deficiency : [says SCO] ...The second deficiency in IBM's response is far more problematic. IBM states that it will produce UNIX System V source code contributed by IBM to Linux. [my emphasis added]...
Is it me mis-decoding legalese again, or is it SCO trying to misrepresent what IBM said about what it's going to do with it Linux activities as they might relate to SysV?

[ Reply to This | # ]

All persons with knowledge...
Authored by: Newsome on Friday, November 07 2003 @ 05:09 AM EST

In Interrogatory 2, SCO asked for all persons with any knowledge concerning any of the issues of the lawsuit, so IBM gave them a list with IBM employees and former employees. SCO didn't think that was sufficient, and asks for non-IBM persons.

Of course... How could IBM have forgotten PJ? :)
...and everyone who reads Groklaw.

Wouldn't it just be easier to identify people _without_ a clue? Like Deutsche Bank, RBC, ...

---
Frank Sorenson

[ Reply to This | # ]

Impact of this Memorandum on the RHAT vs SCOX suit?
Authored by: chep on Friday, November 07 2003 @ 05:10 AM EST
Didn't Red Hat demand that SCO provides source code for all versions of all its UNIX and Linux-related products?

If that is the case, I can see a problem here: if SCO's motion to compel is granted, IBM will have to produce perhaps far more documents that they intended to (though apparently shipping 100Kpages of paper doesn't seem to make them overly suffer, and later I don't see how SCO could claim that IBM drowned them under paper). On the other hand, if SCO's motion to compel is denied, and IBM's restrictions in the amount of versions actually delivered upheld, couldn't SCO use that in Delaware to avoid delivering all versions of UnixWare and the LKP in particular?

[ Reply to This | # ]

Sheldon v. Vermonty
Authored by: Anonymous on Friday, November 07 2003 @ 05:43 AM EST
does sco even read these support cases they use?
br3n

[ Reply to This | # ]

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