|
|
| SCO Harrasses IBM Further - Petitions Court to Let Them Depose its CEO |
 |
|
Friday, January 14 2005 @ 08:33 AM EST
|
SCO has filed a motion seeking to depose IBM's CEO Sam Palmisano. Here is the motion and here is the memorandum in support. IBM has refused to produce him, on the grounds that he doesn't have any specific information relevant to the lawsuit or any knowledge that can't be obtained by deposing others at IBM. He likely is not a coder and can't find the missing "mountain of code" SCO claimed it knew about and now can't find. He probably has more important things to do with his time, too, I'm guessing. But SCO refuses to accept that he has already given them all he has to offer or that anyone else will do, so they have filed the motion. Obviously, they think he *does* have information they'd like to have. A little background. SCO asked for all documents from IBM executives already, and they have already been produced. There was nothing useful to SCO in the materials produced, so they told the court that IBM must be holding out. IBM, of course, said that was not so. So the judge asked if IBM would be willing to get affidavits from the executives saying that they had produced all the documents they have that are relevant. Those affidavits have been produced. SCO isn't satisfied. They filed a Renewed Motion Re Discovery and foreshadowed that they would like to depose someone like Palmisano in that document. That is all this is. They also asked for sanctions against IBM for not producing executives the court has never ordered IBM to produce in their renewed motion re discovery. Maybe they noticed I wrote that, or just noticed, so now they are asking the court to order it. Frankly, to me, it's ridiculous. Fact discovery is supposedly wrapping up next month, so a fight over depositions would be handy if one were seeking a delay, n'est-ce pas? Why didn't SCO ask to depose him earlier? Why wait until December, 2004, which is when they first asked to depose Palmisano? He's been the CEO since SCO first filed its lawsuit back in March of 2003, after all. Darl was deposed by IBM in a timely fashion. The delay is what is so suspicious to me. Why now? Say, how is that stock doing? Anyone think a headline might help? Actually, when I read the memorandum, the impression I form is that SCO is still desperately dancing about, trying to avoid losing IBM's motions for partial summary judgment, and it's throwing everything it can think of, plus the kitchen sink, into that effort. P.S. For those who like to keep counts, this is the 1,500th article on Groklaw since we began.
|
|
|
|
| Authored by: spuluka on Friday, January 14 2005 @ 09:11 AM EST |
If the court has allowed the production of documents surrounding IBM's linux
stategy and the articles about that change, then a deposition of the CEO seems
reasonable.
Documents are only step one. And you would want to read those documents and be
sure you have them all before taking the deposition. So again, the timing would
be driven by exhausting all avenues for more documents first.
Just my thoughts.
---
Steve Puluka
Pittsburgh, PA[ Reply to This | # ]
|
| |
| Authored by: frk3 on Friday, January 14 2005 @ 09:42 AM EST |
No, SCO/TSG does not think that IBM's CEO has information that will
help them with their case.
It is just more of the same from SCO/TSG,
harrass, try to put pressure on to settle (fat chance), etc. [ Reply to This | # ]
|
| |
| Authored by: Griffin3 on Friday, January 14 2005 @ 09:50 AM EST |
| Heh. My eyes must've skipped, because I first read it as "Renewed Motion
of ReDiscovery", like they were wanting to start the whole process over
again. Hey, wait, that might not be a mistaken impression. [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, January 14 2005 @ 10:20 AM EST |
From what I've read, it seems that Sam Palmisano's affidavit only says he
shouldn't be producing any documents regardless the Court Orders.[ Reply to This | # ]
|
| |
| Authored by: jto on Friday, January 14 2005 @ 10:36 AM EST |
On Dec 2 SCO asked to depose Sam on Jan 24 for 7 hours. I suspect that IBM
would object (using the relevance issue) if for no other reason than Sam's
calendar. For any company with a Dec 31 year-end, January is an extremely busy
period for the senior execs. IBM spends much of January every year closing up
the previous year and launching the new year. I would expect that Sam's calendar
for January was completely booked up several months ago, so asking for an entire
day of his time at this late date would be a request very difficult to
meet. Normally, getting time on any senior exec's calendar, especially an
entire day, at this time of year needs a request several months in advance. Does
SCO really think that Sam is just sitting around his
office? ---
Regards, JTO [ Reply to This | # ]
|
| |
| Authored by: belzecue on Friday, January 14 2005 @ 10:47 AM EST |
SCO will show that, if IBM condidered its obligations under its
software agreements with SCO at all in deciding whether and what contributions
to make to Linux, IBM simply placed a higher priority on defeating Sun and other
competitors than on compliance with those contractual obligations, just as it
had done on previous occassions. As one IBM official then put it, if it is
necessary to breach a licensing agreement to prevent a customer from choosing
Sun over IBM, "I'm inclined to shoot first and answer questions later. It's
easier to ask for forgiveness than to ask for permission." Exhibit H (IBM email
10/11/95) at 2.
Mr Palmisano's Key Role in IBM's Linux Strategy,
Before Becoming CEO. Mr Palmisano originated IBM's Linux strategy in
1999...
... so, ladies and gentlemen of the jury, because
in 1995 one IBM official (yes, not an executive or we would have used that word)
implied via email that beating Sun outweighed contractual obligations, we have
now proven that IBM practiced that policy not only during it's 'Linux strategy'
but also for the four years BEFORE Palmisano initiated IBM's 'Linux strategy' in
1999! [ Reply to This | # ]
|
| |
| Authored by: rsteinmetz70112 on Friday, January 14 2005 @ 10:58 AM EST |
Are we sure that IBM deposed Darl? I know it was noticed but recent filings
indicate that a number of those depositions did not take place. It would be just
like SCOG to play hide the Darl.
---
Rsteinmetz
"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, January 14 2005 @ 10:58 AM EST |
What I found most interesting was one of the footnotes (either 2 or 3) in which
SCO makes the claim that if Mr. Palsamo testifies during the deposition that he
*does not* know anything useful to SCO's case *THAT* can be taken as evidence
that IBM is in the wrong. Kinda like the old chestnut of "the guilty
always claim they're innocent". (Strangely enough, so do the innocent.)[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, January 14 2005 @ 11:02 AM EST |
The paper trail, code, and contracts say it all. So - SCO looking to attack the
messenger instead.
I remember that Boies had some very good stuff when he got Bill Gates to give a
deposition for the Microsoft case he was involved with. I think that he would
be looking to try to repeat this with Sam. However, the Microsoft case is not
the IBM/Caldera/SCOx case. The current case is LINUX, the GPL, the Code, the
lack of ownership of copyrights by SCOx, the lack of owning UNIX by SCOx (usl vs
bsdi), the termination clause in the Monterey case, IBM's fully paid up rights
to UNIX, AT&T's commercial UNIX license that did not restrict the use of any
code developed by license holders (unless it was code that AT&T developed,
not bsd code), the side letters, the APA(s), etc...
The case is not about IBM and any conspiracy that would fold into SCOx's dreams
of UNIX ever having some kind of Methods and Concepts protections (that the
judge seemed to think were lacking even in the USL vs BSDI ruling on the USL
request for an injunction against BSDI distribution)!
If you can't attack the message, attack the process or the messenger. SCOx is
looking to try this: in front of a jury their only course they can follow is to
show some kind of conspiracy that damaged them and to confuse the jury into
thinking that this is what the case is all about.
This is not the Microsoft case. The Microsoft case WAS about a conspiracy by
Microsoft, BIll Gates, etc to develop and maintain a monopoly. The facts of
this case are different. SCOx calling Sam is not related to the facts of this
case. The facts are already on paper. The plain and simple fact that SCOx is
running away from now is that they did not do their homework going into a case
where they thought they owned UNIX.... they, are trying to deal now with the
facts that they don't own UNIX and everything they are doing now is just SPIN.
Let's hope that the judge sees SCOx when they are spining and puts a stop to it
so that the jury is not exposed to SCO SPIN when SCO spins it.
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, January 14 2005 @ 11:19 AM EST |
When I read this title, I first thought of "depose" as in "remove
a leader from his position." I thought that was a pretty audacious request
even for SCO.[ Reply to This | # ]
|
| |
| Authored by: avdp on Friday, January 14 2005 @ 11:25 AM EST |
Sounds reasonable to me that they would want to depose Sam Palmisano considering
his prior position at IBM. The schedule may not be convenient to IBM, and maybe
IBM can argue that, but beyond that I don't see any reason why the judge should
deny's SCO's request here.[ Reply to This | # ]
|
| |
| Authored by: mitphd on Friday, January 14 2005 @ 12:14 PM EST |
We still don't know the status of IBM's noticed depositions, but that won't stop
me from wild speculation. :-)
Suppose that SCO pulled its usual tricks at the deposition of Darl McBride
(which, as noticed, should already occurred last year): SCO saying nothing until
one or two days before, and then saying that Darl would be unavailable and
deposition could not proceed. In that case, SCO would be anticipating a motion
to compel SCO to produce him for deposition.
The Palmisano motion, therefore would be an attempt to even the score:
"See, your honor, they are hiding their CEO too, so we shouldn't be ordered
to do anything they aren't ordered to do."
As I said, this is just wild speculation, but if true, the motivation behind
SCO's latest motion would be a lot easier to understand.
[ Reply to This | # ]
|
| |
| Authored by: Paul Shirley on Friday, January 14 2005 @ 12:37 PM EST |
| Looks like my turn to add the placeholder ;) [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, January 14 2005 @ 12:42 PM EST |
...is that SCOG is trying a "last-ditch" attempt to get evidence. They don't
have anything reliable to-date and this might be a last chance considering how
close it is to the deadline. They may be hoping that Palmisano will say
something to incriminate IBM and then come back with "see, we knew there was
something".
That, of course, would not excuse them from filing a
malicious lawsuit without evidence to begin with.
Hmm... at this point,
it really does look like they filed a lawsuit on nothing more then newspaper
clippings and suspicion. Of course, that's granting them the benefit of doubt
that they didn't file the suit as a form of harassment.
RS[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, January 14 2005 @ 01:30 PM EST |
I know this is a pointless post but it
merely expresses frustration. Kimball
has by now had a ***LONG TIME*** to rule
on the PSJ.
The longer he takes the better for IBM,
do you think? Or the better for SCO? [ Reply to This | # ]
|
- Hopeful guess - Authored by: Anonymous on Friday, January 14 2005 @ 02:13 PM EST
- Hopeful guess - Authored by: Anonymous on Friday, January 14 2005 @ 02:47 PM EST
- Hopeful guess - Authored by: Anonymous on Friday, January 14 2005 @ 07:26 PM EST
- Hopeful guess - Authored by: Anonymous on Saturday, January 15 2005 @ 01:14 PM EST
- No - Authored by: Anonymous on Friday, January 14 2005 @ 03:34 PM EST
- Hopeful guess - Authored by: PJ on Friday, January 14 2005 @ 09:22 PM EST
- Novell - Authored by: Anonymous on Friday, January 14 2005 @ 09:34 PM EST
- TANJ - Authored by: Anonymous on Saturday, January 15 2005 @ 01:48 AM EST
- TANJ - Authored by: Anonymous on Saturday, January 15 2005 @ 09:57 AM EST
- TANJ - Authored by: John Hasler on Sunday, January 16 2005 @ 04:54 PM EST
| |
| Authored by: overshoot on Friday, January 14 2005 @ 02:59 PM EST |
| I'm impressed by the heavy use of one-word "quotes" by SCOX. Stuff like
"geeks," "abandon," etc. are placed in a context completely created by SCOX
divorced from even syntactic connection to the original material.
For
instance, the original could have been something like, "The developers
call themselves 'geeks' ..." and "We cannot abandon our current
customers, so we need to provide a graceful migration path ..."
Once again,
I rather doubt that these cheap tricks are going to impress the Court. It seems
much more likely that they are intended for sound-bite use. Contrary to some, I
doubt that SCOX expects any direct benefit (e.g. stock price) from these so much
as to simply hurt IBM as much as possible.
Think of the famous
cartoon, "The
last great act of defiance." [ Reply to This | # ]
|
| |
| Authored by: overshoot on Friday, January 14 2005 @ 03:04 PM EST |
| Maybe the current title isn't so bad after all! [ Reply to This | # ]
|
| |
| Authored by: jim Reiter on Friday, January 14 2005 @ 03:48 PM EST |
The matter of whether or not IBM has violated their
license is in dispute. TSG's claim has not been decided
yet.
The right for TSG to control IBM's SVRX license is in
dispute.
At this time the right for IBM to have a business plan
(strategy(ies)) should not be in question.
TSG has yet to produce the Exhibits to the Santa Cruz
Operation, Inc./Caldera Reorganization Plan/Merger
Agreement to show what TSG actually owns.
IBM has as much right to have a "Linux Strategy" as TSG
would have to a "let's steal Unix from Novell with the
help of a unsophisticated jury strategy."
[ Reply to This | # ]
|
| |
| Authored by: garbage on Friday, January 14 2005 @ 04:50 PM EST |
| over & over & over again... [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, January 14 2005 @ 05:04 PM EST |
I am hugely interested by sco in one important respect. They appear to beleive
that press conferences and soundbites are more important then proof.
The thing is, are they right? Obviously anyone smart enough to enquire would be
visiting groklaw or some other good site for information. The question is, are
the people SCO wish to influence visiting groklaw and other sites that are anti
sco?
I've been to the sco site a few times during this court case, and I find the
contrast most amusing. I was a nurse for over decade, with most of that time
spent in psychiatry, and sco's position seems remarkably similar to patients
I've had with multiple personality disorder.
They profess (and exclaim) a distrust of foss, and yet they distribute and
recomend foss to their customers. They claim to own unix, yet produce no proof.
Then they sue their own customers (well, inherited former customers of the
previous rights owners) for failing to reply to letters sent to the wrong
address and to non existant company names.
If SCO were a person, I'd be sectioning them and asking for detailed psychiatric
reports..[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, January 14 2005 @ 05:30 PM EST |
I am willing to bet that among the first questions asked by SCO attorneys of
Palmisano are "How much is this costing IBM?" and "Wouldn't it be
cheaper to settle?"[ Reply to This | # ]
|
| |
| Authored by: Latesigner on Friday, January 14 2005 @ 06:03 PM EST |
O'Gara again : IBM, Intel, the Open Source Development Labs, and other industry
lights are planning to announce that a consortium has been created that will
rewrite the components in the Linux kernel that have been found to tread on
other people's IP - or at least the 27 Microsoft patents that Linux is supposed
to infringe. The aim? To rob Microsoft of the ability to scare customers off of
Linux by saying that the operating system is a patent infringer, informed
sources say. "Operation Open Gates" as they are calling it is
reportedly going to be unveiled on January 25.
http://www.linuxbusinessweek.com/story/47771.htm
And the state of Oregon foots the bill.
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, January 15 2005 @ 09:56 AM EST |
If SCO succeeds in winning the right to depose Sam, then perhaps we will finally
see the first active participation in the case of David Bois. I think, based on
a lot of evidence I've seen lately, that he's wildly overestimated
as a litigator and as a legal mind, but he has one great skill -- his withering
cross-examinations.
What skill he possesses is something that, in an lay person, would be considered
to be a great character flaw. It's this -- if he thinks he's found a weakness in
his opponent, NOTHING will make Bois let go -- he is relentless, to the point of
psychopathology.
Of couse, Sam will be well prepped and well represented, but the latitude
permitted in discovery would favor Bois.[ Reply to This | # ]
|
| |
| Authored by: Vaino Vaher on Saturday, January 15 2005 @ 11:34 AM EST |
The first duty of the SCO lawyers is not to win the case for SCO, but to earn a
lot of money for their employer. Thus ..
.. up until the legal fee cap agreement the lawyers served their employer best
by dragging the whole thing out, and draining SCO's funds.
.. now that there is no more money to be made that way they have two possible
scenarios to play with:
a) Win the case or force IBM to settle, thereby earning an additional x percent
of what they can extract from their victim.
b) Establish that IBM is not going to give up easily and that no more money can
be made by continuing this case.
My best guess is that Boise et al are reasoning like this:
"We will throw in our best men for a full scale shock assult. Either we
find something that we can use to move this case forward, or we will approach
IBM, suggest a settlement for, say, 100M USD, and promise them a decent
resolution of the case in exchange.
If neither of this works, we will take our 31M, run the ship ashore and go
somewhere else where there is more money to be made."
B.t.w.: I hope that I am right. It is better that the hyenas are looking after
their own best interrest than that they are looking aftere SCO's ...[ Reply to This | # ]
|
| |
| Authored by: elderlycynic on Monday, January 17 2005 @ 09:35 AM EST |
From the OED:
3. To put down from office or authority; esp. to put down from
sovereignty, to dethrone. (The earliest and still the prevailing
sense.)
Personally, I think that it is about time this case were settled
by the combat of champions. That wouldn't be much sillier than
the current progress.
[ Reply to This | # ]
|
|
|
|
|
