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| Judge Well's Order Granting IBM's Motions to Compel Discovery |
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Saturday, December 13 2003 @ 12:45 AM EST
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Here is Judge Wells' Order granting IBM's Motions to Compel for you to savor. Enjoy. Oh, and if you want to have the PDF, it's here. Thanks to mac586 and Frank for transcribing and formatting. Say, look at the list of names this Order was sent to. You think they've got enough lawyers in this case? So, 30 days from the date of this order. Let's synchronize our watches.
IN THE UNITED STATES DISTRICT COURT OF UTAH
CENTRAL DIVISION, DISTRICT OF UTAH
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THE SCO GROUP, INC.
Plaintiff,
vs.
INTERNATIONAL BUSINESS MACHINES
CORP.
Defendant.
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Case No. 2:03cv00294 DK
ORDER GRANTING
INTERNATIONAL BUSINESS
MACHINE'S MOTIONS TO COMPEL
DISCOVERY AND REQUESTS FOR
PRODUCTION OF DOCUMENTS
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Defendant/CounterClaim-Plaintiff International Business Machines Corporation's (IBM's) First and Second Motions to Compel Discovery having come before this Court, and the Court having read the corresponding memoranda submitted by both parties, and having heard oral argument on pertinent matters at a hearing on December 5, 2003, hereby enters the following Order
The Court, finding good cause shown, GRANTS IBM's First and Second Motions to Compel Discovery.
In accordance with the Court's order Plaintiff/Counterclaim-Defendant the SCO Group, Inc. (SCO) is hereby ORDERED:
1. To respond fully and in detail to Interrogatory Nos.1-9 as stated in IBM's First Set of Interrogatories.
2. To respond fully and in detail to Interrogatory Nos. 12 and 13 as stated in IBM's Second Set of Interrogatories.
3. IBM is to provide SCO a list of requested documents as stated in IBM's First and Second Requests for the Productions of Documents and SCO is to produce all requested documents.
4. To identify and state with specificity the source code(s) that SCO is
claiming form the basis of their action against IBM. This is to include
identification of all Bates numbered documents previously provided.
5. To the extent IBM's requests call for the production of documents or are met
by documents SCO has already provided, SCO is to identify with specificity the
location of responsive answers including identification of the Bates numbered
documents previously provided if applicable.
6. If SCO does not have sufficient information in its possession, custody, or
control to specifically answer any of IBM's requests that are the subject of
this order, SCO shall provide an affidavit setting forth the full nature of
its efforts, by whom they were taken, what further efforts it intends to
utilize in order to comply, and the expected date of compliance.
SCO is required to provide such answers and documents within thirty days from the date of this order.
All other discovery, including SCO's Motion to Compel is hereby STAYED until this Court determines that SCO has fully complied with this Order. The Court will hold a hearing on the foregoing issues January 23, 2004 at 10:00 a.m
DATED this 12th day of December, 2003.
BY THE COURT:
[signature of Brooke C. Wells]
BROOKE C. WELLS
United States Magistrate Judge
True and correct copies of the attached were either mailed, faxed or e-mailed by the clerk to the following:
Brent O. Hatch, Esq.
HATCH JAMES & DODGE
[address information]
EMAIL
Stephen Neal Zack, Esq.
BOIES SCHILLER & FLEXNER
[address information]
EMAIL
David K. Markarian, Esq.
BOIES SCHILLER & FLEXNER
[address information]
Evan R. Chesler, Esq.
CRAVATH SWAINE & MOORE
[address information]
Thomas G. Rafferty, Esq.
CRAVATH SWAINE & MOORE
[address information]
David R. Marriott, Esq.
CRAVATH SWAINE & MOORE
[address information]
EMAIL
Mr. Alan L Sullivan, Esq.
SNELL & WILMER LLP
[address information]
EMAIL
Todd M. Shaughnessy, Esq.
SNELL & WILMER LLP
[address information]
EMAIL
Amy F. Sorenson, Esq.
SNELL & WILMER LLP
[address information]
EMAIL
Mr. Kevin P McBride, Esq.
[address information]
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| Authored by: jam on Saturday, December 13 2003 @ 01:14 AM EST |
Well, it seems about what I expected to see. I was wondering if the judge was
going to explain any of the reasoning behind the ruling, or if this was what IBM
prepared, then there obviously wouldn't be insight into the judge's thoughts.
It doesn't seem to give SCO much room to wiggle here, either. The only option
besides producing evidence is to explain what they did to try, why they
couldn't, and when they expect to have an answer. So, they do have to produce
something. Granted, they don't have to produce tons, but that also opens them
up to damage under IBM's counterclaims.
It'll be a great month of anticipation, not even counting Christmas.
[ Reply to This | # ]
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| Authored by: Steve Martin on Saturday, December 13 2003 @ 01:23 AM EST |
All other discovery, including SCO's Motion to Compel is
hereby STAYED until this Court determines that SCO has fully complied with this
Order.
Oh, excellent!! It looks like the
judge is going to determine for herself whether SCO has "shown the code". I
certainly look forward to her evaluating SCO's compliance (or -- ahem -- lack
thereof).
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| Authored by: miss_cleo_psy4u on Saturday, December 13 2003 @ 01:28 AM EST |
The gist seems to be SCO must produce with specificity, fully
documented, the evidence which is applicable in it's charges
against IBM, or produce a calendar itemizing when they are
produce this information if not ready in 30 days.
All other motions are stayed until SCO meets this core obligation
to produce actual evidence worthy of a court trial. IBM has no
obligations until the judge sees what SCO produces and asks IBM
if this is the right stuff.
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| Authored by: Steve Martin on Saturday, December 13 2003 @ 01:29 AM EST |
Hmmm...
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Brent O. Hatch, Esq.
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Stephen Neal Zack,
Esq.
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David K. Markarian, Esq.
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Evan R. Chesler,
Esq.
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Thomas G. Rafferty, Esq.
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David R. Marriott,
Esq.
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Mr. Alan L Sullivan, Esq.
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Todd M. Shaughnessy,
Esq.
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Amy F. Sorenson, Esq.
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Mr. Kevin P McBride,
Esq.
Hold it... you mean Boies doesn't get a copy? How
rude!
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| Authored by: Steve Martin on Saturday, December 13 2003 @ 01:37 AM EST |
From Linux
Online, Michael Jordan does a great op-ed piece, with perhaps the funniest
line I've heard all week:
Motley Fool sums up the new attitude
toward SCO by calling them "the mouse that roared". Those of us who have watched
enough Bugs Bunny cartoons know that a mouse may be able to scare an elephant,
but it's only a matter of time before the elephant picks up Sylvester the cat
and uses him to beat the mouse to death.
(I don't know...
maybe it's just that, at 1:36 in the morning, everything seems
funny.)
[ Reply to This | # ]
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| Authored by: OK on Saturday, December 13 2003 @ 01:53 AM EST |
| I thought there are only three law firms involved... Did I miss anything? [ Reply to This | # ]
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| Authored by: skidrash on Saturday, December 13 2003 @ 01:54 AM EST |
What Motley Fool (should be)/(is) referring to is the classic Peter Sellers
movie.
Sellers played 5 roles in the movie.
[ Reply to This | # ]
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| Authored by: creysoft on Saturday, December 13 2003 @ 01:54 AM EST |
I'd like to wish an especially Merry Christmas to the fine lawyers at IBM,
Inc., whom we know read this forum. (At least, their paras appear to.)
These distinguished gentleman (and ladies) have done a commendable
job of representing both their company and the open source movement.
While I normally complain about lawyers being overpaid, these people
are worth every penny IBM pays them.
While most companies like to shy away from the moral and political
aspects of open source, IBM has (where appropriate) faithfully
represented Open Source and the GPL, and they've looked good doing it.
IBM's legal filings and arguments are top notch quality, and make SCO's
amateurish efforts look weak by comparison. Nobody's perfect, and IBM
hasn't always been the good guy. I understand that they're protecting
Linux because at the moment it's looking after their own self-interest.
But whatever their motivation, past and future events notwithstanding,
right now IBM and their legal team are doing a good thing.
Merry Christmas guys. And thanks.
---
Fear th3 Platypus[ Reply to This | # ]
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| Authored by: skidrash on Saturday, December 13 2003 @ 02:00 AM EST |
Hah. That was a fitting movie.
Just thinking about it now reminds me
The Dutchy of Grand Fenwick declared war on the US because California wines were
trouncing the Fenwick wines in the market.
The US state Dept loses the declaration of war (it slips behind a radiator.
Yes, a radiator. If you don't know what that is, ask your grampa, after he
puts his dentures back in).
The Fenwick army (in chain mail (!!!) , with arrows (!!!) ) lands in New York
(disembarking from a sailboat) during a Q bomb emergency drill.
The city is deserted by the drill, everyone is in the sewers.
The army stumbles upon the Q bomb's inventor and take him, his daughter, and
the bomb hostage, back to Grand Fenwick.
The Dutchy thus wins its war on the US.
Too bad for Darl that IBM's lawyers were not cowering in the sewers.
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| Authored by: eamacnaghten on Saturday, December 13 2003 @ 02:48 AM EST |
SCO now has a copy of Dynix.
I think you can bet that they will be going through it looking for something -
anything - they can give to the court as evidence...[ Reply to This | # ]
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| Authored by: belzecue on Saturday, December 13 2003 @ 03:16 AM EST |
SCO will likely provide another vague, scattershot response that includes: 1)
partly answering the interrogatories, and 2) the affadavit detailing why they
cannot answer with specifity some interrogatories.
They will continue to muddy the waters as much as possible so that the judge
cannot dismiss the case outright. They will continue to act the victim despite
the fact that they both lit and fanned the flames of the controversy. And when
the time comes, when the Judge makes a ruling that halts their FUD, they will
withdraw from this case and start a fresh one. Yes, that's right. Back to
square one. Because that is their best hope for prolonging a resolution and
keeping the speculation high (and their stock price). It won't be an IBM next
time; SCO will pick on the little guy who can't afford to get dragged through
court. They've got about as much publicity and mileage as they are going to
get out of IBM, and that has given them all the 'traction' they need. If they
act now, if they withdraw and regroup before IBM has a chance to inflict
permanent major damage on them, then they still have a chance to pursue the pot
of gold -- this time from the bottom up instead of top down.
But they haven't had any *real* success with the licensing so far, right?
True. But as yet no blood has yet been spilled. It has been suggested
previously that SCO could mock sue a collaborator who suddenly settles out of
court, with much fanfare, and there you go: the appearance of first blood.
That, my friends, is the worst case scenario.
[ Reply to This | # ]
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- Will SCO retreat then open up a new front? - Authored by: Anonymous on Saturday, December 13 2003 @ 03:35 AM EST
- Will SCO retreat then open up a new front? - Authored by: Anonymous on Saturday, December 13 2003 @ 04:17 AM EST
- Will SCO retreat then open up a new front? - Authored by: belzecue on Saturday, December 13 2003 @ 04:56 AM EST
- Will SCO retreat... - Authored by: kberrien on Saturday, December 13 2003 @ 08:48 AM EST
- Will SCO retreat then open up a new front? - Authored by: koa on Saturday, December 13 2003 @ 09:33 AM EST
- Will SCO retreat then open up a new front? - Authored by: Steve Martin on Saturday, December 13 2003 @ 10:29 AM EST
- Will SCO retreat then open up a new front? - Authored by: danb35 on Saturday, December 13 2003 @ 12:04 PM EST
- Will SCO retreat then open up a new front? - Authored by: Anonymous on Saturday, December 13 2003 @ 02:52 PM EST
- Will SCO retreat then open up a new front? - Authored by: Anonymous on Saturday, December 13 2003 @ 06:18 PM EST
- Stock price ... - Authored by: Anonymous on Sunday, December 14 2003 @ 08:42 PM EST
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| Authored by: jmccorm on Saturday, December 13 2003 @ 03:22 AM EST |
Synchronize our swatches? Yes!
Parker Lewis can't lose.
Now Linus Torvalds can't lose.
Film at eleven.[ Reply to This | # ]
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| Authored by: flame on Saturday, December 13 2003 @ 04:01 AM EST |
Ok, don't laugh ... but what if SCO actually has some code to show in 30 days
?
They have a copy of Dynix now, so what if they find some Dynix code or methods
or trade secrets or voodoo or something in Linux ? What if they take this and
actually win at trial (I said don't laugh, so stop it!).
SCO says, and keeps saying, the Unix IP in Linux, the so called line by line
copying is a separate issue to the IBM case. They admit that AIX and Dynix
belong to IBM and the copyrights to AIX and Dynix belongs to IBM. So if IBM did
put AIX or Dynix stuff into Linux then IBM may have violated their contract, but
SCO has no IP claim on that code, they can not license it, they can not demand
that it be removed from Linux, all they can do is sue IBM for contract
violation. The way I see it a victory against IBM would not in any way entitle
SCO to collect licensing fees for Linux.
Am I correct in this assumption ? SCO have clearly stated that the IBM case is a
separate issue to their attempts to extort money from Linux users. They have
also turned around and tried to use the IBM case in their Linux Licensing scam,
but they have made a point at the same time of stating that the two issues are
separate.
--
flame
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| Authored by: brenda banks on Saturday, December 13 2003 @ 05:51 AM EST |
gosh what a beautiful document this is
hehehehe
i know i am losing it but it really is
but at the back of my mind i keep thinking how are they going to try wiggling
around this?
just have to wait and see
Tick Tock Tick Tock
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br3n[ Reply to This | # ]
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| Authored by: lpletch on Saturday, December 13 2003 @ 05:59 AM EST |
Where are the copyright claims SCO promised within a week? Where is the suit
against another company using Linux? I know time is not up for the second but I
don't think there will be one even within the promised 90 days. That would be
somewhere around valentines day I believe.[ Reply to This | # ]
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| Authored by: pajamian on Saturday, December 13 2003 @ 07:05 AM EST |
When they finally do answer the interrogatories, will the answers be available
to the general public?[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, December 13 2003 @ 07:26 AM EST |
Current positions vacant at SCO
-Does not seem to be "down" if you use ip address!!
;)
Director of Financial Reporting - Anyone got any ideas
why the last guy left?
Director of Investor Relations
and
Executive Assistant/Investor Relations - hey look! one for
each investor!!
Internal Audit
Software Engineer -if you
have .net experience. All you M$ conspiricy theorists rejoice
[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, December 13 2003 @ 07:51 AM EST |
SCO filed their copyright claim late Friday.
Just after Judge Brooke filed the order.
So SCO was waiting for the order to be filed _before_ they
file their copyright extensions of the suit. So that the
order does not apply to those 'new' parts of the suit.
How sneaky. They even broke their promise that they'd file "in a few
days, but at most within a week".
The late Friday filing was clearly after the deadline they promised in open
court.[ Reply to This | # ]
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| Authored by: belzecue on Saturday, December 13 2003 @ 08:31 AM EST |
Oh good lord... SCO.com has hit the canvas again!
Up, down, up, down... I'm feeling woozy.[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, December 13 2003 @ 09:00 AM EST |
| Sorry for being pedantic, but are the 30 days laborable days or simply 'days'? [ Reply to This | # ]
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| Authored by: Bill The Cat on Saturday, December 13 2003 @ 09:19 AM EST |
I'm sure that SCO will release what they think is the problem code. Keeping in
mind that the trial must make the final determination. They're probably aware
that some, most, or all of the code they identify will be found not to apply
but, that code which may apply will be left for them to make their claims
against. If they supply 100 files and 99 are found not to be infringement or
breach of contract, the remaining one could still have teeth.
---
Bill Catz -
"The number of UNIX installations has grown to ten, with more
expected." -- UNIX Programmers Manual, 2nd Ed. June, 1972[ Reply to This | # ]
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| Authored by: geoff lane on Saturday, December 13 2003 @ 09:59 AM EST |
| Here is a curious thing, access to
www.sco.com is stuck at xo.net again (from the
UK) but using 216.250.128.20 access is OK.
Also netcraft is
reporting the site is unavailable.
Another attack or
could someone be
messing with the DNS servers? [ Reply to This | # ]
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| Authored by: Anonymous on Saturday, December 13 2003 @ 03:17 PM EST |
SCO is in trouble because it has to do three things:
1) turn over a big list of code that it can claim IBM misappropriated.
Now suppose it frantically does a code analysis in the next month, and comes up
with a list like that which is at least superficially persuasive. It is still
not out of hot water because it also has to:
2) turn over the original code analysis that it has been claiming publically it
did early this year. If it didn't actually do this analysis, or if it did but
it didn't come up with a million lines, then SCO is dead as far as the
countersuit goes, and IBM could likely get a summary judgement.
3) turn over the UnixWare code in machine-readable form. The fact that it has
refused to do so, and, as could be predicted, thereby angered the judge, seems
to indicate that there is something in it SCO wants to hide, like Linux code. If
that is the case, then SCO's case is dismissed on the basis of "unclear
hands."
What do you think the odds are that SCO will pass all three tests?[ Reply to This | # ]
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| Authored by: brenda banks on Saturday, December 13 2003 @ 07:57 PM EST |
http://www.eweek.com/article2/0,3959,1412424,00.asp?kc=EWRSS03119TX1K0000594
enjoy
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br3n[ Reply to This | # ]
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- No big deal - Authored by: _Arthur on Saturday, December 13 2003 @ 09:24 PM EST
- SCO's spin... - Authored by: Anonymous on Sunday, December 14 2003 @ 06:38 PM EST
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| Authored by: jaydee on Saturday, December 13 2003 @ 08:05 PM EST |
If / when SCO loses the case, and the share value falls to $0.10. What can IBM
actually get out of SCO that is of value.
IBM have as many Unix servers as they can use.
The Unix IP rights (if any) will be pretty much worthless.
The customer base could be worth something (McDonalds would be worth converting
to Linux, all those retrained sysadmins etc.)
Anybody else got any ideas?[ Reply to This | # ]
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