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More IBM-SCO Love Letters Re Discovery |
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Friday, July 30 2004 @ 07:06 AM EDT
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Here you will see lawyers handling discovery when there is not much trust left in the air. They are deep into the chess match here, in mid-game, with all the complexity that implies. SCO tries to muscle IBM and fails. And we know what eventually happened. SCO filed a motion to compel to try to muscle IBM some more, asking the court to make IBM give them what they want. At issue is, exactly what is IBM obligated to turn over? A cynical observer might add that it's really about trying to block IBM's partial summary judgment motion, by making it seem there is lots more discovery still to be done and that IBM is "stalling" on turning over what SCO needs. SCO's Renewed Motion to Compel Discovery [text], with its Memorandum in Support [text], was the outgrowth of the letters. SCO has asked the court in their motion to make IBM turn over what they asked for in the letters, and more than they asked for in these letters, which were attached by SCO as exhibits to that motion. IBM has yet to respond to that motion. The due date for that filing is August 4. Note that the June 9 letter from IBM to SCO indicates that Ransom Love and the directors of Canopy Group are among those SCO is seeking contact information for. If SCO's characterizations in the letters are accurate, and that is a big if, it would indicate that IBM intends to call them as witnesses at trial.
The PDFs of the letters are linked to at the beginning of each letter. You will notice from the dates that this is not the complete exchange of love letters between them. These are just the ones that ended up as SCO exhibits. My favorite letter is the last IBM letter, where they say in effect, "Oh, on that material you asked us to produce that we are not required to produce, we note you never gave us the equivalent. So, how about we both produce that category of material to each other at the same time? What day would be convenient for a mutual transfer?" SCO's reply is, "Um. Forget it. No more letters. We're going to the judge." Note they did *not* say, "Oh, fine. Mutual transfer it is. How about we do lunch and I'll give you our attorney work product and you can give me yours?" Attorneys don't have to turn over attorney work product in discovery, and SCO references this letter exchange in its footnote 14 in its Memorandum in Support, which makes it possible to compare their characterization of the exchange with the letters themselves: "[14] SCO's request for information on 49 of the individuals was communicated by letter from Mark Heise to Peter Ligh, dated April 20, 2004 (attached as Exhibit 'K'). At about that same time, IBM named 85 additional witnesses in IBM's Second Supplemental Responses and Objections to SCO's First Set of Interrogatories dated April 19, 2004. IBM, however, decided not to provide the contact information for the witnesses that were not current or former IBM employees, even though it possessed the information. SCO requested IBM to remedy its noncompliance and provide the contact information for these 85 additional witnesses by letter to IBM's counsel dated June 4, 2004. See letter from Mark Heise to Peter Ligh (attached as Exhibit 'L'). By letter dated June 9, 2004, IBM claimed it was excused from producing the information because none of the individuals identified are presently affiliated with IBM. See letter from Peter Ligh to Mark Heise (attached as Exhibit 'M'). In response, SCO pointed out that it was only seeking information that IBM had in its possession. Letter from Mark Heise to Peter Ligh, dated June 15, 2004 (attached as Exhibit 'N'). IBM responded by claiming the request of SCO was now 'unclear' and suggested that the contact information in its possession might be work product. Letter from Peter Ligh to Mark Heise, dated June 16, 2004 (attached as Exhibit 'O'). Not wanting to engage in further protracted discussions, which simply work to delay IBM's production of the Court-ordered information, SCO simply noticed that IBM is under orders to provide this information and SCO expects IBM to comply. Letter from Mark Heise to Peter Ligh, dated July 6, 2004 (attached as Exhibit 'P')." We see here SCO's position. We haven't yet heard IBM's side. What is at issue, though, is how to define what it is IBM is supposed to turn over. Obviously the parties don't agree. No one outside the discovery process can really know precisely what is going on and who is right and who is wrong, although it's clear to me that SCO's description of the letters doesn't match my impression. When the parties can't agree on discovery, at some point, somebody has to intervene. That's what judges are for.
************************************
[193-K.pdf]
[Boies, Schiller Letterhead]
April 20, 2004
Via Facsimile
Peter Ligh
Cravath Swaine & Moore LLP
[address]
Re: The SCO Group v. IBM
Dear Peter:
I received your letter dated April 19, 2004, in which you enclosed some of the contact information for the witnesses listed by IBM in its Answers to Interrogatories. You, however, attempt to justify not providing contact information for many of the witnesses I requested because they were not listed on attachments B through E. This is not a valid justification for refusing to provide such information.
Please be advised that these folks are identified by IBM as witnesses from whom IBM has provided documents. It is incongruous to provide documents from persons but then claim such persons are not witnesses in the case merely because IBM has failed to list them on Attachments B through E (although they clearly should be listed on attachments B through E).
Please let me know if you are willing to provide this information or whether we need to pursue this matter further with the Court.
Very truly yours,
Mark J. Heise
MJH/vb
[193-E.pdf]
[Cravath, Swaine Letterhead]
April 26, 2004
SCO v. IBM; IBM v. SCO
Dear Mark:
I write in response to your letter of April 22, 2004.
First, the files of Irving Wladawsky-Berger were searched and reviewed, but did not contain any responsive documents. Second, responsive documents from the files of other IBM senior executives are indicated on the source logs accompanying our document production. For example, Nick Bowen's documents can be found at bates numbers 1710088236-1710088650, 181031656-181031836, 181516101-181518248, 1910016418-1910017768, 1910021192-1910021542, 1910040040-1910040989, and 1910042024-1910042025; Paul Horn's documents can be found at bates numbers 1710091268-1710091416, 181518249-181518403, and 181585414-181585435; and Steven Mills' documents can be found at bates numbers 181668093-181670566. In addition, responsive documents from the Board of Directors' files can be found at bates numbers 1710137805-1710137834.
Very truly yours,
Peter Ligh
Mark Heise, Esq.
Boies, Schiller & Flexner LLP
[address]
BY FAX
[193-L.pdf]
[Boies Schiller Letterhead]
June 4, 2004
Via Facsimile
Peter Ligh
Cravath Swaine & Moore LLP
[address]
Re: The SCO Group v. IBM
Dear Peter:
After our repeated objections about IBM's failure to properly identify witnesses, I would have thought that your April 19 response would have remedied the situation. Apparently, you have chosen not to do so in any of your filings. As a result, enclosed please find a list of additional individuals for whom IBM must provide the address, phone number and any other contact information. These individuals are from Exhibit A on IBM's supplemental production made pursuant to the Court's March 3, 2004 Order.
Very truly yours,
Mark J. Heise
MJH/vb
Encls.
[193-M.pdf]
[Cravath Swaine Letterhead]
June 9, 2004
SCO v. IBM; IBM v. SCO
Dear Mark:
I write in response to your letter of June 4, 2004.
None of the persons listed on the attachment to your letter is affiliated with IBM. Current contact information for these persons should be as accessible to SCO as to IBM (if not more accessible to SCO, since the list includes many persons affiliated with SCO, such as SCO's former CEO and directors of The Canopy Group, Inc., SCO's largest shareholder).
Very truly yours,
Peter Ligh
Mark Heise, Esq.
Boies, Schiller & Flexner LLP
[address]
BY FAX
[193-N.pdf]
[Boies, Schiller Letterhead]
June 15, 2004
Via Facsimile
Peter Ligh
Cravath Swaine & Moore LLP
[address]
Re: The SCO Group v. IBM
Dear Peter:
In response to your letter dated June 11 in which you refuse to provide contact information for witnesses identified by IBM in its April 19 disclosure, please note that we are not asking for any SCO employees. Moreover, SCO is only asking for contact information that IBM has for the identified witnesses. If IBM has in its possession this information and SCO does not, then your statement that it is just as easy for SCO to get this information is incorrect. Thus, please let me know by the end of the day on June 16 whether IBM will be providing the contact information for the people identified on my earlier attachment for whom IBM has the relevant information.
If IBM refuses to provide contact information that IBM possesses, then we will have no choice but to bring this matter before Judge Wells. We hope such action is unnecessary. Thank you for your prompt attention to this matter.
Very truly yours,
Mark J. Heise
MJH/vb
[193-O.pdf]
[Cravath, Swaine Letterhead]
June 16, 2004
SCO v. IBM; IBM v. SCO
Dear Mark:
I write in response to your letter of June 15, 2004.
It is not clear to us what information you seek. Is it your position that the parties should exchange third-party contact information that has been discovered through the work of counsel for the parties? SCO itself does not appear to have provided such information in its answers to IBM's Interrogatory No. 10. If that is your position, what date do you propose for a simultaneous exchange of the information?
Very truly yours,
Peter Ligh
Mark Heise, esq.
Boies, Schiller & Flexner LLP
[address]
BY FAX
[193-P.pdf]
[Boies, Schiller Letterhead]
July 6, 2004
Via Facsimile
Peter Ligh
Cravath Swaine & Moore LLP
[address]
Re: The SCO Group v. IBM
Dear Peter:
I write in response to your recent letter concerning IBM's obligation to provide contact information for the witnesses listed by IBM. In response to your question about SCO's position, it is simple and straightforward. SCO wants IBM to comply with the Court's Order. Over one year ago, SCO served five interrogatories seeking basic information in this case, including the identity of pertinent witnesses. In response, IBM listed over 7,000 potential witnesses -- obviously a vastly over-inclusive list designed to effectively withhold rather than provide the information IBM was obliged to produce. At the same time, IBM failed to provide the required contact information. SCO followed up and asked for this information, but IBM again refused to provide it. As a result, in November 2003, SCO was forced to file a motion to compel seeking, among other items, the necessary contact information. IBM continued to resist production.
On March 3, 2004, the Court issued its Order on the nearly one year old discovery requests. The Court ordered IBM, among other things, to provide the contact information for prospective trial witnesses -- the exact information requested by SCO that IBM had refused to provide for nearly a year. Pursuant to that Court Order, on March 26, 2004, SCO again requested information for selected witnesses. Remarkably, IBM still refused to provide information for 49 of those witnesses and continues that practice as to a significant number of other witnesses. Likewise, again pursuant to the Court order, SCO thereafter provided another list of 85 witnesses taken from IBM's second supplemental responses to IBM's first set of interrogatories and requested the appropriate contact information. IBM again has failed to provide the required information that is needed to prepare for trial.
Given the number of requests SCO has made and IBM's refusal to respond -- even when ordered to do so by the Court -- we have come to the unavoidable conclusion that IBM is not going to provide the required contact information. SCO cannot further participate or be drawn into the kind of letter writing exchange that has only led to more than a year of refusals to produce the most basic discovery.
Very truly yours,
Mark J. Heise
MJH/vb
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Authored by: entre on Friday, July 30 2004 @ 07:16 AM EDT |
This will not be a good day for SCO longs with this quality of work from IBM. [ Reply to This | # ]
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Authored by: bbaston on Friday, July 30 2004 @ 07:27 AM EDT |
Help Pamela!
---
Ben
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IMBW, IANAL2, IMHO, IAVO,
imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold, hairysmileyface,[ Reply to This | # ]
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Authored by: bbaston on Friday, July 30 2004 @ 07:29 AM EDT |
This section's been good lately!
---
Ben
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IMBW, IANAL2, IMHO, IAVO,
imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold, hairysmileyface,[ Reply to This | # ]
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Authored by: bbaston on Friday, July 30 2004 @ 07:54 AM EDT |
Heise in last letter:
"Given the number of requests SCO has made and IBM's refusal to respond --
even when ordered to do so by the Court -- we have come to the unavoidable
conclusion that IBM is not going to provide the required contact information.
SCO cannot further participate or be drawn into the kind of letter writing
exchange that has only led to more than a year of refusals to produce the most
basic discovery."
rather ignores IBM's offer to mutually exchange further discovery. My concern is
Heise positioning the SCO side for success in being granted an appeal,
especially since I do not recall a previous "we give up on this"
exchange from SCO.
I hope the court will realize that Heise is responding to IBM's Peter Ligh
exchange offer by ignoring it:
"Is it your position that the parties should exchange third-party contact
information that has been discovered through the work of counsel for the
parties? SCO itself does not appear to have provided such information in its
answers to IBM's Interrogatory No. 10. If that is your position, what date do
you propose for a simultaneous exchange of the information?"
Could these "no response to discovery" exchanges from SCO take on a
life of their own even if IBM's request for judgement is granted? Is SCO
attempting to set up IBM for a series of "we give up" responses that
may not be obviously silly to the appeals judges?
---
Ben
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IMBW, IANAL2, IMHO, IAVO,
imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold, hairysmileyface,[ Reply to This | # ]
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Authored by: CustomDesigned on Friday, July 30 2004 @ 07:56 AM EDT |
If a wise man contendeth with a foolish man, whether he rage or
laugh, there is no rest.
I was reminded of the SCO case while
reading this yesterday.[ Reply to This | # ]
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Authored by: kbwojo on Friday, July 30 2004 @ 08:46 AM EDT |
I noticed a few things reading the July 6th letter.
On March 3,
2004, the Court issued its Order on the nearly one year old discovery requests.
The Court ordered IBM, among other things, to provide the contact information
for prospective trial witnesses
As I interpret the order, IBM was
ordered to give full contact information on 1000 prospective trial witnesses
agreed upon by SCO and IBM, not just the ones SCO
wants.
Likewise, again pursuant to the Court order, SCO thereafter
provided another list of 85 witnesses taken from IBM's second supplemental
responses.
The supplemental response was filed for on April 19,
2004 and is not covered by the March 3rd order. The March 3rd order covered the
original 7200 witnesses that IBM had named. It looks like once again that SCO is
trying to play games with the court orders and hoping no one notices.
[ Reply to This | # ]
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Authored by: belzecue on Friday, July 30 2004 @ 09:02 AM EDT |
One paragraph replies from IBM. Darn. Mark, I guess you didn't get to waste
anybody's time except your own. I did enjoy your sturm und drang show, though.
Positively Shakespearean.
While you're writing these long-winded, pointless letters to your adversaries,
IBM's counsel prefers to spend its time productively... like figuring out the
next five turns in this legal chess match, since they already have twenty up
their sleeve.
Thank you, Mark, for being the blustering wind caught in IBM's sail.[ Reply to This | # ]
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Authored by: Anonymous on Friday, July 30 2004 @ 09:12 AM EDT |
Does SCO really want the contact information for these 85 people? I doubt it.
SCO wants to force IBM to comply with SCO's interpretation of the court
order, or (more likely) to paint IBM as unwilling to provide discovery. If SCO
was actually interested in the information it's requesting, it could find it
much more quickly and much more cheaply on its own. For example,
switchboard.com gave me an address for one Ransom Love living in Utah in
about 3 seconds.
If SCO really needs contact information for these 85 people, it should simply
find them itself and make a big deal to the court about how IBM was
uncooperative and how SCO had to do extra work because of it.[ Reply to This | # ]
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Authored by: Anonymous on Friday, July 30 2004 @ 09:51 AM EDT |
Compare:
(1) SCO's letter
Please be advised that
these folks are identified by IBM as witnesses from whom IBM has
provided documents. It is incongruous to provide documents from persons but
then claim
such persons are not witnesses in the case
merely because IBM has failed to list them on
Attachments B through E (although they clearly should be listed on attachments B
through
E).
To what they
asked for before:
(2)
http://www.groklaw.net/article.php?story=20031107030725166
SCO's Memo
in support of their motion to compel. Note that they seek address information
for attachments B, C, D (emphasized below)
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.
In the same document, a bit further down
Attachment E is explained:
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. It 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.
Compare
also:
(1) SCO's letter
On March 3, 2004,
the Court issued its Order on the nearly one year old discovery
requests. The Court ordered IBM, among other things, to provide the
contact information
for prospective trial witnesses --
the exact information requested by SCO that IBM had
refused
to provide for nearly a year. Pursuant to that Court Order, on March 26, 2004,
SCO again requested information for selected witnesses.
Remarkably, IBM still refused to
provide information for 49
of those witnesses and continues that practice as to a
significant number of other witnesses. Likewise, again pursuant to the Court
order, SCO
thereafter provided another list of 85 witnesses
taken from IBM's second supplemental
responses to IBM's
first set of interrogatories and requested the appropriate contact
information. IBM again has failed to provide the required information
that is needed to
prepare for trial.
(2) To what the court
ordered
6. SCO seeks the proper indentification of
approximately 7,200 potential witness[es]
identified by
IBM. IBM in its memoranda suggested that the parties might be able to reach
some sort of agreement as to the most important prospective
trial witnesses and then IBM
would provide the full contact
information for these individuals. The Court orders IBM to
properly identify a representative sample of the potential witnesses that is to
include a
1000 of the most important prospective trial
witnesses as agreed upon by SCO and IBM.
Following the
production of this information, the Court will consider the need for the
proper identification of additional
witnesses.
Quatermass
IANAL IMHO etc[ Reply to This | # ]
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Authored by: sphealey on Friday, July 30 2004 @ 10:03 AM EDT |
Could someone familar with discovery disputes comment on how this will appear to
the judges? I am told that judges in general despise arguments over discovery
and come down hard on any party they see as obstructing.
From a layman's point of view, it appears that IBM is the obstructing party
here. Is there some key language or rule of civil procedure that makes it
evident that that is not the case?
sPh[ Reply to This | # ]
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Authored by: Anonymous on Friday, July 30 2004 @ 10:08 AM EDT |
Yes SCO desparately needs this information
Look at the dates....
IBM says they are willing to provide the information on June 16th, and wants to
arrange a swap
So, SCO, desparately needing the information as it does, does what you would
expect: wait three weeks, ignore IBM's offer, and file a renewed motion to
compel discovery.
</sarcasm>
And by one of those bizarre coincidences, SCO's renewed motion to compel
discovery coincides with SCO's rule 56f opposition to IBM's PSJ motion, and is
referenced therein.
[ Reply to This | # ]
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Authored by: Anonymous on Friday, July 30 2004 @ 11:51 AM EDT |
If you have evidence, you don't need more discovery.
I think IBM just agreed to another delay so that their
attorneys could have a vacation with their wives and
kids before school starts.
Maybe Novell will file for summary judgment next week.[ Reply to This | # ]
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Authored by: Anonymous on Friday, July 30 2004 @ 12:29 PM EDT |
Okay SCO tried to register USL as a trademark, and Stowell hinted they may
change their company name.
Imagine the effect on interpreting the depositions (that have already occurred)
e.g. Witness X might have said something like "USL may have those rights,
but they gave them away."
or
e.g. Witness Y might have said "USL agreed to settle the BSD case because
of...."
or
e.g. Witness Z might say "I don't think USL objected to the ELF
standard."
etc (not to mention any USL copyright notices in BSD etc)
Now SCO will retrospectively re-interpret Witness X's or Y's statement to be
about them (even though the statement was intended to be about the real USL).
And thus will claim, either superior knowledge to witness X or Y or Z's
statement.
Or perhaps some witness conceded that USL had certain rights, and now SCO want
to claim the witness meant that they had these rights, (whereas the witness
meant the real USL)[ Reply to This | # ]
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Authored by: Anonymous on Friday, July 30 2004 @ 12:59 PM EDT |
<tinfoil-hat>
If SCO knows which of the SCO/Canopy associates that IBM has contact info for,
It knows only these ones need to dodge a subpoena, and the rest need not worry
</tinfoil-hat>[ Reply to This | # ]
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- Scary - Authored by: Adam B on Friday, July 30 2004 @ 02:48 PM EDT
- Scary - Authored by: stuart_b on Friday, July 30 2004 @ 07:02 PM EDT
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Authored by: Anonymous on Friday, July 30 2004 @ 02:56 PM EDT |
"Over one year ago, SCO served five interrogatories seeking basic information
in this case, including the identity of pertinent witnesses. In response, IBM
listed over 7,000 potential witnesses -- obviously a vastly over-inclusive list
designed to effectively withhold rather than provide the information IBM was
obliged to produce."
Interesting logic... IBM produces an
"over-inclusive" list that is designed to withhold information.
Is it
me, or does this sound contradictory? [ Reply to This | # ]
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Authored by: Adam B on Friday, July 30 2004 @ 03:50 PM EDT |
It's kind of hollow words that we are not showing code,
because
we have shown examples and if we keep showing it, they'll just take
that out
and say 'no harm no foul.' That doesn't solve the problem. --
Chris
Sontag
Here's an interesting line of reasoning...suppose SCO is
found to own the
copyrights they allege. Suppose IBM did dump this code into
linux. Is Chris
even right?
Well, yes and no. Yes he is right that
Everyone Who Uses Linux in the
Whole Wide World is liable. Yes, even though
they did not know they were
infringing.
But how much? Well, in SCOs
(and I mean the actual SCO here) heyday,
their profits
hovered around $5
million. So, four years of around $5 mil, throw in a 100%
growth over 4
years (25% per year is awesome for a company that size), and
you get $25
million. But 92% of that was attributable to the OpenServer
revenue, which Tarantella retained
the rights to, so we are down to
$2 million dollars.
Well, two
million dollars is still a lot, though, recoverable from every
person in the
whole world. But a clever reader of the court notes surrounding the US copyright
code will
note that:
4. Where the infringements of one work were
committed by a
single infringer acting individually, a single award of
statutory
damages would be made. Similarly, where the work was infringed
by two or more joint tortfeasors, the bill would make them
jointly
and severally liable for an amount in the $250 to $10,000
range.
However, where separate infringements for which two or
more defendants are
not jointly liable are joined in the same
action, separate awards of
statutory damages would be
appropriate.
Well, it's pretty
clear that Everyone in the Whole Wide World who uses
Linux, since they're all
using the same product distributed from the same
source by the same people, are
jointly liable. Now, ignore the part about the
monetary amounts -- those are
statutory damages which SCO would certainly
not seek, as innocence of intent
can reduce those to $100 or so per incident
of infringement (and yes, the
code specifically states that infringements of
multiple elements in a
compilation, such as UNIX Sys V, do not count as
multiple incidents of
infringement). They would be seeking loss of profits,
and gains by the
infringers (which, due to the language of the statute, would
be
zero).
So, by my math, they are entitled to have everyone who uses Linux
to get
together and pay them a total of $2M. Innocence of intent easily
gets us out
of paying their court costs (thank goodness), and they might be
entitled to an
injunction against using or distributing Linux until their code
is ripped out.
Where is the hole in my logic / casework?! I know
it has to be
there, or we wouldn't be sweating bullets even at the beginning of
this whole
thing. We would have just chipped in a nickel, done some coding,
and gone
home. Where is that $5B per minute or whatever coming from?
Someone
help me understand our enemy. [ Reply to This | # ]
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Authored by: Anonymous on Friday, July 30 2004 @ 06:14 PM EDT |
Wow, SCO actually has the cheek to claim they need time to get contact info for
Canopy Group execs. [ Reply to This | # ]
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Authored by: Anonymous on Saturday, July 31 2004 @ 12:00 AM EDT |
TSG is making a big deal of contact information. Meanwhile, TSG hopes
people forget that TSG provided no proof of copyright violations in Linux.
Maybe the judge will weigh IBM's refusal to do TSG's lawyers' work as
equivalent to TSG having no evidence. Nah!
The TSG lawyers are paid BIG bucks to do this whiny kind of legal work.
McBride will pocket his many millions. The TSG lawyers will split up even
more millions than McBride grabs. And McBride's friends will get their
percent of the action.
Do they care about software when they're raking in money?[ Reply to This | # ]
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Authored by: jog on Saturday, July 31 2004 @ 01:31 AM EDT |
SCO referes to itself as "(USL)"!
Use the search function at sco.com for "usl"
Okay so it's only parenthetically but it
may be a hint.[ Reply to This | # ]
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Authored by: mobrien_12 on Saturday, July 31 2004 @ 01:54 AM EDT |
I read the letters and I start to think, "ok so what's so wrong with
Heisie's request?" If IBM already had the contact information for the 7000
witnesses, it doens't really cost much to give it to SCOG, even if they could
get it themselves.
It goes on and on and on and I'm starting to think Heisie's right.
But then IBM finally says that they will do it, but expect the same in return.
Heisie replys with a temper tantrum and says he'll go to the Magistrate and ask
her to compel the information, rather than play nice and give the same kind of
discovery he asks for.
This doesn't make sense to me. Am I missing something?
[ Reply to This | # ]
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