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SCO's Motion to Compel Discovery
Monday, January 12 2004 @ 12:53 PM EST

Here is SCO's Motion to Compel Discovery [PDF]. This is the motion they would like the judge to address next, and which she will address after they have satisfied IBM and the judge that they have been responsive with sufficient specificity to IBM's discovery requests.

Their chief request is for "the 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" and the same for Dynix, as well as all IBM contributions to Linux. Note that SCO is saying IBM has notified SCO that they have a list of 7,200 potential witnesses.

As you will see in their supporting Memorandum, which I will post next, this refers to IBM's providing a list of names of employees and former employees who might have had access to relevant code, but IBM pointed out in its response to the SCO request that until SCO tells them what code is at issue, they can't be very specific.

SCO mentions in its Memorandum one person they feel ought to be on the IBM list but was not: Sam Palmisano. For them to mention Palmisano by name indicates to me that SCO has a reason for wanting him listed, but at this point I can't say why SCO feels he is significant, only that it looks to me like they think he is important to their case.

********************************************

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 MOTION TO COMPEL DISCOVERY AND CERTIFICATE OF COMPLIANCE WITH RULE 37(a)(2)(A)

Case No. 2: 03-CV-0294DK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells


Plaintiff The SCO Group, Inc. (“SCO”), served its First Request for Production of Documents and First Set of Interrogatories on June 24, 2003 . Many of Defendant International Business Machines Corporation's responses have been incomplete or evasive. Therefore, pursuant to Fed.R.Civ.P. 37, SCO respectfully moves this Court for an Order compelling IBM to produce all documents, and respond fully to all interrogatories, as specified in the attached memorandum.

Among other deficiencies, IBM has failed to produce: (1) the 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) the 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; and (3) all contributions by IBM to Linux. IBM also failed to properly identify the approximately 7,200 potential witnesses it named. As explained in greater detail in the attached memorandum, these requests address relevant, indeed critical, evidence, and their timely and full production is necessary for the orderly progress of discovery in this case.

IBM has responded only partially to requests for documents and information that are completely proper. Since Rule 37 provides, in relevant part, that “an evasive or incomplete disclosure, answer, or response is to be treated as a failure to disclose, answer, or respond,” Fed.R.Civ.P. 37(a)(3), this Court should treat IBM's responses to the attached requests for production and interrogatories as a failure to disclose, answer, or respond and should require IBM to respond fully and without further delay or excuse.

CERTIFICATION OF COMPLIANCE WITH RULE 37(a)(2)(A)

SCO's Counsel Mark J. Heise has tried, repeatedly and in good faith, to reach an accommodation with IBM regarding the attached requests. The parties began to discuss these issues in early September 2003, and, as set forth in greater detail in the accompanying memorandum, engaged in a course of correspondence, emails and telephonic conferences that has continued until October 28, 2003 . Those discussions included, but were not limited to, a lengthy telephone conference between Mr. Heise and Debra Goodstone on behalf of SCO and Todd Shaughnessy and Peter Ligh on behalf of IBM that began on September 18th and continued on September 22, 2003 with most of the same participants. The parties exchanged emails regarding these issues from September 24th through October 1, 2003. Counsel for IBM then wrote a letter to counsel for SCO dated October 10, 2003, defending its responses and continuing what SCO believes are inadequate responses as is more fully addressed in SCO Memorandum accompanying this Motion. Mr. Heise and Ms. Goodstone also spoke with Christine Arena and [sic] attorney for IBM regarding deficiencies related to AIX and Dynix codes and the files of critical witnesses that were not produced. IBM indicated it would supplement, but has failed to do so and SCO believes further discussion will not be fruitful. SCO only brings to this Court those issues it believes have led the parties to an impasse, regarding which no further negotiation will be useful.


DATED this 4th day of November, 2003.

Respectfully submitted,

By: [signature]

HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

BOIES, SCHILLER & FLEXNER, L.L.P.
Stephen N. Zack
Mark J. Heise

Counsel for Plaintiff/Counterclaim defendant


  


SCO's Motion to Compel Discovery | 73 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
OT: SCO Responds to OSDL
Authored by: Anonymous on Monday, January 12 2004 @ 01:59 PM EST
http://biz.yahoo.com/prnews/040112/lam085_1.html

The thing I find interesting is that "The actions of these vendors today
doesn't change the fact that SCO's intellectual property is being found in
Linux."

Not "has been found", or "is in", but rather "is
being found." What does that mean? Haven't they found anything yet?

--Pete

[ Reply to This | # ]

SCO's Motion to Compel Discovery
Authored by: Anonymous on Monday, January 12 2004 @ 02:01 PM EST
If they feel that Sam Palmisano could have any direct knowledge of these
matters, they are indeed, as Linus suggested, smoking crack.

[ Reply to This | # ]

SCO's Motion to Compel Discovery
Authored by: photocrimes on Monday, January 12 2004 @ 02:02 PM EST
I like this part:

>>>
The actions of these vendors today doesn't change the fact that SCO's
intellectual property is being found in Linux. Commercial end users of Linux
that continue to use SCO's intellectual property without authorization are in
violation of SCO's copyrights. SCO continues to publicly show evidence of this
infringement. We invite interested parties to view some of this evidence for
themselves at www.sco.com/scosource .
<<<

I went there, but I'm having trouble finding the "evidence" they
speak of. Lots of unproven claims, but no evidence.

http://biz.yahoo.com/prnews/040112/lam085_1.html

---
//A picture is worth a thousand words//

[ Reply to This | # ]

Sam Palmisano witness
Authored by: Anonymous on Monday, January 12 2004 @ 02:07 PM EST
The reason I think Sam Palmisano is wanted as a witness by SCO is that he seems
to be partly responsible for IBM to adopt Linux. Therefore one could argue he
could have autherized the copying of code into linux when he was the chief of
ibm's enterprise systems group.

As he is also the current CEO he is the person that ougth to have been informed
about any deliberate cross copying or otherwise so this man ougth to be able to
answer many of sco questions.

______________
Flame for anything untrue, inacurate or plain foolish !
bla bla bla

[ Reply to This | # ]

SCO's Motion to Compel Discovery
Authored by: Anonymous on Monday, January 12 2004 @ 02:10 PM EST
SCO's discovery is aiming to get AIX source code. Once they get this, they will
compare this with Linux and will point directly towards things like JFS as being
infringement. Essentially, the argument will be that:

1) Their contract guarantees that derivative works must stay private

2) Those derivative works are in Linux

3) Linux is infringing, and Linux users owe royalties to SCO.

It is then that they will start to sue end users, and it will be a looooooong
court battle over what exactly constitutes a derivative work and what is covered
by the contract and who is liable.

In the meantime, SCO may go bankrupt. If this happens, they will be open for
acquisition. If they are bought by anyone other than IBM or Novell, then the
battle may continue under the new owner's watch.

[ Reply to This | # ]

SCO's Motion to Compel Discovery
Authored by: meat straw on Monday, January 12 2004 @ 02:19 PM EST
I find the weepy, doe-eyed, "but your honor, we tried all that we
could" voice of the motion ridiculous. Of course SCO needs to voice it
this way, but "...deficiencies related to AIX and Dynix codes...that were
not produced" makes my vomit want to vomit. Do you think SCO will accept
pints of User's blood as payment for licenses?

[ Reply to This | # ]

SCO's Motion to Compel Discovery
Authored by: valdis on Monday, January 12 2004 @ 02:23 PM EST
Since Rule 37 provides, in relevant part, that "an evasive or incomplete disclosure, answer, or response is to be treated as a failure to disclose, answer, or respond," Fed.R.Civ.P. 37(a)(3), this Court should treat IBM's responses to the attached requests for production and interrogatories as a failure to disclose, answer, or respond and should require IBM to respond fully and without further delay or excuse.

Pot. Kettle. You know the rest.

[ Reply to This | # ]

SCO's Cash-out strategy
Authored by: mojoNYC on Monday, January 12 2004 @ 02:39 PM EST
A lot of pondering has gone on to try to suss out what SCO's strategy is to cash out on their scam, and I haven't yet read anything commenting on the amount of SCO's legal bill for 2003...remembering their SEC filings for last year, there was appx $9M in lawyers fees (i'm working off memory) --couldn't this be the way that they are laundering money out of SCO? (especially considering that Darl's other brother Darl is one of the attorneys)

I'm not familiar with litigation costs, so my question is this--are these fees really inline with legitimate costs for said litigation?

[ Reply to This | # ]

SCO's next delay
Authored by: Sunny Penguin on Monday, January 12 2004 @ 02:50 PM EST
"Note that SCO is saying IBM has notified SCO that they have a list of
7,200 potential witnesses."

Is there a limit on how many people SCO can force to tell their entire life
story on the witness stand.
Can we count on SCO to call each and everyone of these people to the stand for
at least a hour. (7,200 hours more to delay)

Is it legal to call the hot dog vendor outside the IBM building too?

---
SCO directly to jail, do not collect two hundred dollars.

[ Reply to This | # ]

Why want Sam?
Authored by: Anonymous on Monday, January 12 2004 @ 04:37 PM EST
Probably because according to his bio;

"...[Sam was also] group executive for IBM's Enterprise Systems Group,
where he led IBM?s adoption of the Linux operating environment..."

thus, he would have worked with whatever they're disputing.

[ Reply to This | # ]

Why Palmisano might be important
Authored by: Anonymous on Monday, January 12 2004 @ 05:20 PM EST
When I remember it correctly, Palmisano was once in charge of IBM's OS/2
business. As such, he might have been involved with making JFS on OS/2 GA some
time ago. Since SCO states that the JFS code also contains parts that infringe
their copyrights, this might be the reason. Could mean btw. that there might be
some side effect on OS/2 users (like me, as I must admit) on the horizon. Well,
according to Darl McBride and his gang almost every OS after System V was a
derivative work from System V, so why should I wonder...

[ Reply to This | # ]

Sam Palmisano
Authored by: Stefan on Monday, January 12 2004 @ 07:36 PM EST
I think that it might be a combination of being responsible for the
LINUX-strategy and maybe some involvment in "Project Monterey". He
is responsible for bringing in LINUX, if he also had a part in axing
"Monterey" I suppose he don't get many x-mas greetings from Utah.

Here are some quotes from the past.Especially this one must make for a lot of
fond memories in the SCO headquarters..."IBM says it is not abandoning its
AIX efforts or Project Monterey, but believes that the markets are
different."
Aah, those were the days...

"IBM unveiled a reorganization that places responsibility for its Linux
strategy under senior VP Sam Palmisano, who reports directly to CEO Lou
Gerstner. In a memo sent to Gerstner on Jan. 7, Palmisano wrote that Linux will
"play a pivotal role" in meeting customers' demand for
interoperable systems and heralds "another important shift in the
technology world.""

http://www.informationweek.com/769/linux.htm


"In making the announcement, Sam Palmisano, senior VP of IBM's
enterprise group, made it clear that IBM intends to work closely with the Linux
community as well as to make its own technology available to the Linux and open
software communities, stressing it is not confining its efforts to Linux, but to
open source software generally. The collaborations with Caldera, Red Hat, SuSE
and TurboLinux will continue. To this end, Irving Wladawsky-Berger is heading a
new IBM unit within the enterprise group. IBM says it is not abandoning its AIX
efforts or Project Monterey, but believes that the markets are
different."

http://www.linuxplace.com.br/sqush_place/957385110/addPostingForm

[ Reply to This | # ]

SCO's Motion to Compel Discovery
Authored by: skuggi on Monday, January 12 2004 @ 07:43 PM EST
"Commercial end users of Linux that continue to use SCO's
intellectual property without authorization are in
violation of SCO's copyrights."

Is this possible? Violating copyright by use, I always
thought it had to be something about copying.
And "Commercial end user" What is that?

-Skuggi.

[ Reply to This | # ]

Why should Sam be listed?
Authored by: mobrien_12 on Monday, January 12 2004 @ 07:51 PM EST
If they think Sam should be on the list doesn't that mean that he didn't NEED
to be on the list? Or is the list itself evidence that SCO lawyers think they
need to use in court?

[ Reply to This | # ]

SCO's Motion to Compel Discovery
Authored by: Greebo on Tuesday, January 13 2004 @ 02:04 AM EST
I looked on SCOsource web site, and read the FAQ :

http://www.sco.com/scosource/Final_SCOsource_QandA.html

Since i am not a UNIX programmer, and only know a bit about the History of UNIX
and Linux, maybe someone could comment on SCO's claims in this FAQ?

I found these parts to be particularly interesting :


Two weeks ago an industry publication headlined a story saying SCO was
threatening to sue Linux vendors.

The story was wrong. SCOsource is now one day old. We haven’t made any plans to
sue Linux vendors, and we certainly haven’t threatened any vendors. This story
was damaging to the Linux community and made assumptions that were incorrect.

But isn’t hiring Boies, Schiller and Flexner a clear signal that SCO is getting
ready to sue people?

Not at all. SCO is working with BSF for their expertise at dealing with complex
legal problems. Resolving intellectual property issues does not automatically
mean litigation.

If SCO requires Linux customers to license SCO’s UNIX shared libraries, won’t
this damage the Linux market by driving up the costs of implementing Linux?

By purchasing this license, customers will have the ability to run thousands of
UNIX applications on Linux, which they would otherwise have to obtain in a
native Linux format. A license to SCO’s shared libraries will actually save many
customers thousands of dollars.

[ Reply to This | # ]

Sam was Head of Linux Strategy...
Authored by: Anonymous on Tuesday, January 13 2004 @ 06:02 AM EST
I was working at IBM at the time of the "Big Gamble" on
Linux, and it was samp@ibm.com who threw the dice, hence
why sco@hell.go want to put him on the stand@court.gov.
While Sam was heir-apparent to loug@ibm.com for a long
time, it is said that the success of the Linux move was
what sealed the top job for him.

John.
(formerly johnX@ibm.com)

[ Reply to This | # ]

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