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A Mountain of IBM Declarations
Saturday, September 18 2004 @ 06:05 AM EDT

Here is a list of IBM's Declarations in Support of Motion for Partial Summary Judgment on Breach of Contract Claims. I like the "Volume II of II" touch. IBM is writing a book, no doubt about it. They stayed silent for a year and a half, while SCO filled the media with quotations. But now, it is time to present proof, and it isn't SCO that turns out to have the mountain of evidence.

Of course, it is difficult to come up with evidence if you haven't done any depositions, which SCO seems not to have started. Instead they are holding their breath until they turn blue, insisting on being given all the AIX code since the dawn of time before they will begin.

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

SNELL & WILMER, L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[address, phone, fax]

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone, fax]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

____________________________


IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

_____________________________

THE SCO GROUP, INC.

Plaintiff/Counterclaim-Defendant,

-against-

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff

______________________________

DEFENDANT/COUNTERCLAIM-PLAINTIFF
IBM'S DECLARATIONS IN SUPPORT OF
MOTION FOR PARTIAL SUMMARY
JUDGMENT ON BREACH OF CONTRACT CLAIMS

VOLUME II of II


Civil No. 2:03CV-0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

________________________________

Defendant/Counterclaim-Plaintiff International Business Machines Corporation ("IBM") respectfully submits the following declarations, attached hereto at Tabs F-N, in support of its Motion for Partial Summary Judgment on Plaintiff/Counterclaim Defendant The SCO Group, Inc.'s ("SCO") breach of contract claims (SCO's First, Second, Third, and Fourth Causes of Action):

F. Declaration of Geoffrey D. Green, executed June 17, 2004.
G. Declaration of Ira Kristenberg, executed June 24, 2004.
H. Declaration of Richard A. McDonough III, executed April 30, 2004.
I. Declaration of Jeffrey W. Mobley, executed July 26, 2004.
J. Declaration of Scott Nelson, executed August 4, 2004.
K. Declaration of David P. Rodgers, executed November 5, 2003.
L. Declaration of Roger C. Swanson, executed June 28, 2004.
M. Declaration of Joan Thomas, executed August 4, 2004.
N. Declaration of Steve Vuksanovich, executed August 9, 2004.
O. Declaration of Otis Wilson, executed April 26, 2004.

DATED this 13th day of August, 2004.

SNELL & WILMER L.L.P.

_____[signature]______
Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler
David R. Marriott

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

Of counsel:

INTERNATIONAL BUSINESS MACHINES CORPORATION
Donald J. Rosenberg
Alec S. Berman
[address, phone]
Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

CERTIFICATE OF SERVICE

I hereby certify that on the 13th day of August, 2004, a true and correct copy of the foregoing was hand delivered to the following:

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

and was sent by U.S. Mail, postage prepaid, to the following:

Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]

Robert Silver
BOIES, SCHILLER & FLEXNER LLP
[address]

______[signature]______
Amy F. Sorenson


  


A Mountain of IBM Declarations | 185 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
OT Here Please
Authored by: Anonymous on Saturday, September 18 2004 @ 07:20 AM EDT
No text.

[ Reply to This | # ]

A call for donations
Authored by: Drew on Saturday, September 18 2004 @ 07:22 AM EDT
A mountain of declarations will be a mountain of copies that have to be paid
for.

I just wanted to call upon people to pitch in and donate a couple of dollars
through the two links on the side (PJ once mentioned that there´s less overhead
costs with amazon than paypal btw.) There´s 5000+ registered users plus
countless unregistered visitors. If half of them donate at least two dollars PJ
won´t have to pull all-nighters to finish a paid-for article for quite some time
and can concentrate on creating content for groklaw.

Andreas (putting his wallet where his keyboard is, sending 25$)

[ Reply to This | # ]

Corrections here, if you please.
Authored by: darksepulcher on Saturday, September 18 2004 @ 07:37 AM EDT
You know, just to make life easier on PJ.

---
Had I but time--As this fell Sergeant, Death
Is strict in his arrest--O, I could tell you--
But let it be.
(Hamlet, Act V Scene 2)

[ Reply to This | # ]

Trolls, Flamers, Astroturfers, and other unsavory denizens here
Authored by: darksepulcher on Saturday, September 18 2004 @ 07:39 AM EDT
You know we love you guys and just *adore* those little chibi-flamethrowers you
try using against someone who has something worthwhile to say.

---
Had I but time--As this fell Sergeant, Death
Is strict in his arrest--O, I could tell you--
But let it be.
(Hamlet, Act V Scene 2)

[ Reply to This | # ]

A Mountain of IBM Declarations
Authored by: blacklight on Saturday, September 18 2004 @ 07:59 AM EDT
"Of course, it is difficult to come up with evidence if you haven't done
any depositions, which SCO seems not to have started. Instead they are holding
their breath until they turn blue, insisting on being given all the AIX code
since the dawn of time before they will begin" PJ

SCOG already has a list the Dynix and AIX programmers. What's to prevent SCOG
from tracking these people down, and depose them as to their contributions and
the subsequently scour the Dynix, AIX, Linux, etc. codes for violations? If SCOG
uses up depositions doing that, so what? SCOG can always go back to the judge
and ask for more. To date, SCOG has given notice that is is taking one
deposition out of its 1000 allotment - one! SCOG is definitely spending a lot of
energy on being as dilatory and lackadaisical as possible.

What SCOG is basically whining about is that IBM is not handing everything on a
silver platter, and gift-wrapped to boot. SCOG is not taking ownership of its
failures in the marketplace, in the courts and probably anywhere else. And it
won't do the hard work of doing what it takes to win in the courts anymore than
it was willing to do the hard work of doing what it takes to win in the
marketplace either. Typical!

[ Reply to This | # ]

Groklaw proudly hosts SCOlaw
Authored by: Anonymous on Saturday, September 18 2004 @ 08:15 AM EDT
>>>>>>>>>
The article says that SCO will set up a version of Groklaw "so people won't
have to go to Groklaw and read its anti-SCO philippics". Ahem... aren't we
allowed to have an opinion, like you have your SCO/M$ shilling?! Where's your
evidence? Get it right.
<<<<<<<<<<<

This was on another thread, but I see an opportunity here:

GROKLAW proudly hosts Astroturf and SCO support threads in every article.

Until SCO has it's own astroturf movement on-line. Groklaw will consider it as a
community service to allow potential contributions for the future SCOlaw to post
under a specially constructed thread area.

Rob

[ Reply to This | # ]

A Mountain of IBM Declarations
Authored by: Anonymous on Saturday, September 18 2004 @ 12:27 PM EDT
SCO, welcome to Friday the 13th, nazgul style.

[ Reply to This | # ]

SCO Depositions: 1 done, out of 1000 they could have
Authored by: JamesKatt on Saturday, September 18 2004 @ 01:24 PM EDT
How on earth can SCO claim any evidence for IBM wrongdoing if they haven't
been deposing people for such evidence.

If any IBM programmer knew or participated in wrongdoing, SCO would have
been able to depose them and obtain it's smoking gun. This would then have
allowed SCO to ask rightly for the AIX and DYNIX intermediate files. But SCO
did not depose any IBM programmer.

If anyone involved in the contract between IBM and ATT knew that IBM's
recent behavior was in violation of the IBM-ATT contracts and licenses, then
SCO could have deposed them and found out early in the process. Their law
firm is a contract law firm. It should have known to do this.

What is galling is that SCO could have deposed 1000 people. It had its choice
among the list of 7000 people who participated in developing AIX and DYNIX.
The names of people involved with the contracts and licenses were listed on
the documents themselves. Yet SCO chose not to depose people involved,
using instead it's own employees or former employees.

It is clear that from the start of the lawsuit, SCO knew it did not have any
evidence NOR expected to find any evidence of IBM wrongdoing. It,
therefore, chose to NOT do any work in developing its evidence. It did not
hire any outside experts to compare the UNIX System V and LINUX code. It
did not investigate the intent of the original contracts and licenses.

There are no mountains of evidence. Its table of evidence is EMPTY.

---
I ANAL

[ Reply to This | # ]

Maureen O'Gara
Authored by: tredman on Saturday, September 18 2004 @ 01:59 PM EDT
There's just so much wrong with that piece, it would take a Groklaw comment five
times its length to explain it all. PJ, I'm filing a motion for "Leave to
File Overlength Memorandum Regarding Maureen O'Gara and Her Latest
Article". No? Okay, I'll just sum up then.

First, Maureen has to be the most psychotic journalist I have ever read in my
life. One day, she's stomping on Linux for having the gall to infringe on
SCOX's rights. The next day she's spelling doom and gloom for SCOX because of
their weak case. Now this. Geesh. Make up your mind, Ms. O'Gara. I've never
seen one journalist flip-flop on the issues quite as much as you do. It almost
ruins your credibility more than if you were to just parrot SCOX's press
releases.

Second, send MOG back to school. Apparently she's forgotten how to write. Or
maybe she's learned to write from Brent Hatch. Either way, she's never going to
be considered for further publication in any serious media unless she starts to
learn how to construct English sentences. There were more than a couple
paragraphs where I had to reread a passage three or four times just to glean
what she was saying.

Third, there is a fundamental difference between journalism and editorialism.
This was editorialism.

Fourth, there is "SCO's suit last time we looked was a contract case
although that fact sometimes gets lost" and "...but darned if we can
remember SCO ever charging IBM with [copying code into Linux]". Maybe we
wouldn't get so lost if SCOX weren't expending so much energy trying to get
every version of AIX to prove a claim of copying code into Linux. If it's just
a contract case, put away the SysV, AIX, Dynix and Linux code and whip out the
contracts. Under that explanation, it seems that the contracts are all you
need.

Fifth, "Supposedly SCO never knew any of this before it stumbled over it in
IBM's discovery." This is precisely the reason that IBM is fighting so
hard to keep from having to give SCOX every iteration of AIX ever done. Based
on earlier filings, an accusation of fraud just doesn't hold up coming from a
company with such weakened credibility as SCOX. However, just because they
shouldn't bring forth accusations doesn't necessarily mean that they won't. A
charge of fraud may be frivolous, but it still costs money and redirects
energies away from more important things. This is simply a restatement of the
old addage "If you're not doing anything wrong, you have nothing to be
afraid of", quoted so many times by legislators and big corporations (you
know who you are). Not doing anything wrong doesn't prevent somebody from being
a thorn in your backside. Just ask Ted Kennedy how much he likes to fly these
days, and you'll see how people can be singled out without having done anything,
Ted's political views not withstanding.

Sixth, "SCO has also finally decided to set up a site of its own to house
all the myriad legal documents the suit has created so people won't have to go
to Groklaw and read its anti-SCO philippics." Good for them. If they feel
that they can tell their side in a convincing manner and vindicate themselves in
the public eye, go for it. Just remember. As they say in sports, it's not how
well or how badly you played, it's all about scoreboard, and SCOX has not really
been scoring any points on the one playing field that counts: the courtroom. It
doesn't matter if they tell the judge one thing and the public another. At the
end of the day, the only place they're required by law (barring slander, libel
and truth in advertising) to tell the truth is in court. Darl & Co. can
spout off all the opinions they want on their own astroturf bulletin board, but
when all is said and done, Judge Kimball is the one to decide who wins and who
goes home, since we can pretty much tell that most of the issues of significance
will never see a jury.

Tim

[ Reply to This | # ]

Maureen seems to be wrong.....
Authored by: Anonymous on Saturday, September 18 2004 @ 02:15 PM EDT
"See, IBM was on Unix System 3 and Sun was on System V and IBM needed to catch up"

IIRC, SysIII was in use in about 1981, and all modern Unix variants are based on SysV. Grokline confirms that my memory is about right, and even Aix 1.0 was based on SysV, so I strongly suspect that she is about as bright and/or well-informed as a certain Mr. Brown of AdTI about Unix history.

BTW SysIII was not actually very good, its predecessor Version 7 seemed more solid, and the version I worked with on a Plexus P-35 was very buggy, but it did make at least some attempt to support 16 users on a 6MHz 68000 with 1MB or RAM. The kernel was 220k. Those were the days....

[ Reply to This | # ]

A Mountain of IBM Declarations
Authored by: jccooper on Saturday, September 18 2004 @ 10:36 PM EDT
Well, if SCOX would like to produce text versions of the court documents on
their dime, I'm inclined to let 'em. It would be a valuable service.

[ Reply to This | # ]
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