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Judge Kimball Gives SCO More Time and IBM Asks for Some
Friday, March 11 2005 @ 01:29 PM EST

Here is the Order from Judge Kimball, giving SCO the extra time they requested to file their response to IBM's Motion Limiting Scope of IBM's Ninth Counterclaim. IBM has filed a motion too, a Motion for 45-Day Extension of Time to Comply with 1/18/05 Order, asking the court for more time to comply with the January 18th order, for the following reasons, which I am listing in the order I believe will carry the most weight:

  • IBM has asked for reconsideration of one of the order's requirements, and that isn't likely to be ruled on by the 60-day due date;

  • SCO has now demanded more than was ordered by Judge Wells, claiming they understand the order to mean that IBM has to produce not only code, but also hardware and middleware information, and that is, IBM says, a new request that the court has to resolve. "Contrary to the Order's provisions (and contrary to the March 3, 2004 Order which precedes it), SCO contends that the Order requires IBM (1) to produce not only 'specific development and contribution information' for AIX and Dynix, but also for Linux; and (2) to produce not just AIX and Dynix operating systems materials, but also all materials in CMVC that are unrelated to AIX or its code, internal design, or methods, such as hardware system designes, firmware, manufacturing-related components, and middleware and other software designed to run on top of the AIX and Dynix operating systems, among other things." IBM doesn't believe the order says they need to do that, but even if it did, they couldn't do that in 60 days. They've tried to work it out with SCO, but they don't agree about what the order requires;

  • IBM really can't get it done in 60 days. They have, they tell the court, hundreds of employees working on this unprecedented court order, something IBM has never in its long existence ever been asked to do before, and it really is a massive task, just like they told the court during the discovery hearings.

This last is the one piece least likely to matter to this court, in my opinion, because so far we haven't seen a lot of understanding of what is involved in such an order or how unusual it is. The court seems more bent on making sure it has closed off every possible claim SCO can ever make from now until the heat death of the universe. Well, if you were the judges, would you want to see them back again?

IBM, in my view, though is also writing for the appeals court, should it prove necessary, and this last point is valuable there, if it can be substantiated. Discovery isn't supposed to shut down your company or inconvenience it to the point that you have hundreds of employees dropping their normal work just to do discovery for months. Discovery isn't supposed to impoverish a company or be so excessive that it becomes a major financial burden.

All of the points have merit, but the last one is kind of letting the judge know that the discovery order was bigger than a nontech-oriented magistrate judge maybe realized, and while they are hopping right on it, it will take some time, and it was excessive to begin with.

Let's imagine for a moment. Let's say you wanted to sue a large, big pockets company, hoping to annoy them enough that they'll settle with you and make you rich beyond your wildest dreams. Might you use discovery to annoy, do you think?

The underlying theme of IBM's motion, though unspoken, is clear. IBM intends to appeal this if necessary, because it really is burdensome and in their view excessive. They can collect the code, given enough time, and they will hand it over, and all the rest too, except for the 3,000 programmers' files, when many of them go back maybe 15 years, and their owners are no longer with the company or may even have deceased -- it's just massive and maybe not even possible without an extraordinary expense and effort, and for what?

Let SCO identify where the problem is, which programmers they are interested in, and IBM will hunt for those files. SCO will say that without all the files, how can they know which programmers are of interest? So the court may try to work out some compromise here.

I gather IBM is telling the court this: Every time this court has given SCO something in discovery, they just demand more. It's a pattern. There will be no end to this fishing expedition unless somebody finally draws a line in the sand and means it.

So, if this court doesn't provide relief, IBM will appeal, and if they lose that appeal, they will do what it takes to comply, but I hope at some point IBM will ask that SCO be required to pay for IBM's discovery expenses. I hope they do ask for this in the next hearing, frankly. Then let's see how much discovery SCO still wants done.


  


Judge Kimball Gives SCO More Time and IBM Asks for Some | 258 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
OT here, please
Authored by: overshoot on Friday, March 11 2005 @ 01:43 PM EST
And clickable links would be nice.

[ Reply to This | # ]

Corrections
Authored by: roboteye on Friday, March 11 2005 @ 01:45 PM EST
Late on the OT thread - how about corrections

[ Reply to This | # ]

Corrections here, please
Authored by: vonbrand on Friday, March 11 2005 @ 01:46 PM EST
Man, have I wanted to write this... ;-)

[ Reply to This | # ]

  • How can? SCO - Authored by: Anonymous on Friday, March 11 2005 @ 01:51 PM EST
"Hundreds of Employees..."
Authored by: Anonymous on Friday, March 11 2005 @ 01:54 PM EST
Two hundred employees would cost $10-20,000,000 a year. I would love IBM
to ask that SCO pay for the discovery costs.

[ Reply to This | # ]

Judge Kimball Gives SCO More Time and IBM Asks for Some
Authored by: Toon Moene on Friday, March 11 2005 @ 01:57 PM EST
> Discovery isn't supposed to shut down your company or
> inconvenience it to the point that you have hundreds of
> employees dropping their normal work just to do discovery
> for months. Discovery isn't supposed to impoverish a
> company or be so excessive that it becomes a major
> financial burden.

I've said it before and I'll say it again: It makes no sense to order a
discovery for copying code that costs more than it cost to produce the code in
the first place.

We're talking about Unix System V Revision 4, a decade-and-a-half old operating
system kernel that most probably extended into not more than a few hundred
thousand lines of code.

Our Numerical Weather Prediction code is around 1.2 million lines, and we didn't
spend more than about 600 man years on it (over 20 years). That's inclusive of
all the meteorological research necessary to come up with the algorithms.

This Discovery Is Just Plain Silly.


---
Toon Moene (A GNU Fortran maintainer and physicist at large)

[ Reply to This | # ]

How can the court order so much discovery
Authored by: chrism on Friday, March 11 2005 @ 02:01 PM EST
with so little proof of wrong doing on IBM's part?

I realize the court is trying to prevent overturn on appeal, but this is, as PJ
puts it, an overly burdensome order.

Am I missing something? Is the court's initial granting of this order a ruse,
designed to provoke a response from IBM that will establish the unreasonableness
of SCO's request in a way that would be harder to appeal than if the court had
denied the request to begin with?

I hope the discovery requests IBM made of Intel and others for any and all
documents relating to SCO are likewise granted and are plenty burdensome
themselves, as they smirk carelessly from the sidelines. Somehow I doubt it.

[ Reply to This | # ]

Judge Kimball Gives SCO More Time and IBM Asks for Some
Authored by: mossc on Friday, March 11 2005 @ 02:10 PM EST
Back to January discovery order:

"Finally, the court wishes to note the importance of the code to both
parties. SCO has much to gain by showing that any so called homegrown code
allegedly within the purview of the contract ended up in Linux. In equal
respect, IBM's case will be strengthened tenfold if IBM can show that
notwithstanding possible contract protections, homegrown code provided no basis
for the code that IBM eventually contributed to Linux. . . . The production of
the code, per se, or the evidence it leads to will not only assist the trier of
fact but will help both parties adequately prepare their cases. This dual
importance is another element which contributes to the court's decision
requiring IBM to produce additional source code."

It seems that Judge Wells doesn't quite understand the case.
Is the justification for the unprecedented discovery order to determine whether
any of IBMs in house developed code was contributed to linux?

If so, that doesn't appear to be in dispute. Can IBM short-circuit the whole
extended discovery process by stipulating that they did contribute
"homegrown" code to linux.

We know that is the case. Would they lose any leverage by conceding that fact?

Then if falls back to TSG to show that "so called homegrown code allegedly
within the purview of the contract ended up in Linux" is really within the
purview of the contract.


Chuck

[ Reply to This | # ]

"would you want to see them back again?"
Authored by: Anonymous on Friday, March 11 2005 @ 02:17 PM EST
That may be true, but at this rate they will never leave.

Robert

[ Reply to This | # ]

Judge Kimball Gives SCO More Time and IBM Asks for Some
Authored by: Nick_UK on Friday, March 11 2005 @ 02:33 PM EST
All we need now is Darl to turn up in his pyjama's... or
should that be 'PJ's'.

Nick ;)

[ Reply to This | # ]

  • Darl in pyjamas - Authored by: Anonymous on Friday, March 11 2005 @ 09:50 PM EST
    • Darl in pyjamas - Authored by: Anonymous on Saturday, March 12 2005 @ 02:08 AM EST
Judge Kimball Gives SCO More Time and IBM Asks for Some
Authored by: blacklight on Friday, March 11 2005 @ 02:37 PM EST
"The court seems more bent on making sure it has closed off every possible
claim SCO can ever make from now until the heat death of the universe. Well, if
you were the judges, would you want to see them back again?"

Right now, these two characters are in disregard of several principles of
discovery: (1) that it is proportionate to the original evidence for the
allegations; (2) that it is reasonably calculated to yield the evidence sought;
(3) that it does not create an undue burden and expense on the party who is
receiving the discovery demand; (4) that it is based on an acurate understanding
on the litigation.

If the judges are tone deaf, then it's time for IBM to appeal their discovery
order.

[ Reply to This | # ]

Appeal?
Authored by: LocoYokel on Friday, March 11 2005 @ 02:53 PM EST
Could it be that Judge Kimball and Justice Wells made this order so burdensom
because they want IBM to appeal it? Then they could SCO 'sorry you're outta
luck, the appeals court said you had to abide by the original orders' and start
working to end this charade.

[ Reply to This | # ]

The rest of the Story
Authored by: rsteinmetz70112 on Friday, March 11 2005 @ 02:55 PM EST
I noticed that IBM filed their motion on the 9th two days after the Judge
granted SCOG's order. SCOG made their request based on their work load in
discovery.

Quid Pro Quo?

---
Rsteinmetz

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

My pet theory
Authored by: eskild on Friday, March 11 2005 @ 03:05 PM EST
My pet theory is that some disgruntled former IBM employee has told somebody in
SCO that there exists a certain file somewhere in IBMs system.

(s)he think that this file has relevance to the case, and it doesn't really
matter wether (she is right or wrong.

(s)he has provided SCO with a copy of this file, but as it was not aquired in a
way that it would be considered admissible evidence, then SCO searches for that
particular file.

I have no idea of what the nature of that hypothetical file would be, but taken
out of context it might look embarassing for IBM, even if it might have an
innocent explanation.

Do I make sense or is it complete nonsense?

---
Eskild
Denmark

[ Reply to This | # ]

OTOH
Authored by: jim Reiter on Friday, March 11 2005 @ 03:06 PM EST


Maybe Kimball and Wells would like to see IBM appeal the
discovery issue since a decision from the appellate court
would be unappealable at the appellate level.

[ Reply to This | # ]

This case is ridiculous
Authored by: Anonymous on Friday, March 11 2005 @ 03:25 PM EST
Can anyone explain to me, in 100 words or less:

(1) How SCO even brought this suit without having (or showing) any evidence
whatsoever.
(2) Where the proof is that SCO owns the copyrights to the code it claims IBM
has infringed.
(3) Why the judges have ordered IBM to do spend MILLIONS OF DOLLARS worth of
employee time collecting BILLIONS OF LINES OF SOURCE CODE that, to my layman's
eye, appears to be completely unrelated to this litigation.
(4) Why IBM has allowed all this nonsense to take place? If you give SCO an
inch, they take a yard. As soon as IBM realized this, why didn't they just
start fighting SCO tooth-and-nail over every ridiculous little thing? Their
moral-high-ground stance is making them look weak.

I believe IBM did nothing whatsoever wrong, and I am disgusted that this case
has been kicking around federal court for 2 years already and so little of
significance has been accomplished. When will SCO start taking the serious
beating they richly deserve?

[ Reply to This | # ]

Judges trying to force IBM to settle?
Authored by: GLJason on Friday, March 11 2005 @ 03:42 PM EST
Judges like to have cases settle, don't they? A case this complex will almost certainly be appealed, which could lead to it being overturned as many of the issues are very complex. Think of all the mountains of paperwork that Kimball and Wells have had to sort through, most of them legal pleadings with probably hundreds of sited cases in total. Not to mention that SCO changing their story and arguments all the time makes it hard to know exactly what is going on.

SCO would like to win their $5 billion, but Kimball made it pretty clear most of their case would be thrown out at the end of discovery and that their legal pleadings were shoddy. ("Viewed against the backdrop of SCO's plethora of public statements concerning IBM's and others' infringement of SCO's purported copyrights to the UNIX software, it is astonishing that SCO has not offered any competent evidence to create a disputed fact regarding whether IBM has infringed SCO's alleged copyrights through IBM's Linux activities.4 Further, SCO, in its briefing, chose to cavalierly ignore IBM's claims that SCO could not create a disputed fact regarding whether it even owned the relevant copyrights.", also mentioning that they filed 160 pages of briefs to basically say that they needed more discovery and changed their story more than once)

IBM has "hundreds" of employeed working on producing the discovery. SCO doesn't even have "hundreds" of employees total. Going through the discovery would certainly take much, much longer (and more money) than simply producing it. And, I believe, SCO can't even have their own employees go through the materials (isn't this right?). Therefore, they will have to hire outside people to go through the software over probably a period of years, and they won't even be able to pay their own employees for that long before they run out of money.

So could this be the Judges' way of telling IBM "Come on, you have plenty of money, throw some SCO's way to shut them up."? I would hate for that to happeen as it would be rewarding them for their outrageous claims and lies...

[ Reply to This | # ]

The Judges are human -- they goofed
Authored by: jbb on Friday, March 11 2005 @ 04:17 PM EST
I realize the absurdity of the Jan 18th discovery order to anyone that understands the size of two billion lines of code. Faced with such absurdity, it is easy for us to draw all sorts of absurd conclusions, such as the judges are working for SCO or they are trying to get IBM to settle a case where there has been no evidence presented against them.

The discovery order appears even more absurd once you realize that the time and cost to analyze (or even just look at) all of this discovery will be ten or a hundred times greater than the time and cost to produce it. It is certain that vast majority of the effort and money IBM is expending to produce this discovery will be wasted.

Nonetheless, the simplest and most logical explanation is that the judges did not have a good feeling for the qualitative difference between 20 million lines of code (a Linux kernel) and 2 billion lines of code (the Jan. 18th discovery order). It is the same as the difference between 1 month and 8 years.

ISIBAIWSIA (I've said it before and I will say it again), the judges will eventually catch on, and then they will eventually realize that they will have to reverse their decision saying that all possible intermediate code is relevant. The longer they put this off the more embarassing it will be.

---
SCO cannot violate the covenants that led to and underlie Linux without forfeiting the benefits those covenants confer.

[ Reply to This | # ]

Yarro gets SCOX to get lost?
Authored by: Latesigner on Friday, March 11 2005 @ 04:31 PM EST

http://linuxbusinessweek.com/story/48581.htm

If this is true the irony is priceless and having it reported by O'Gara, well,
words fail me.

[ Reply to This | # ]

Either SCO appeals, or IBM appeals . . .
Authored by: Anonymous on Friday, March 11 2005 @ 07:20 PM EST

. . . What difference does it make which one? It's
unavoidable.

[ Reply to This | # ]

If Yarro did get all the SCO Stock
Authored by: mark on Friday, March 11 2005 @ 08:03 PM EST
It would fit in whth my theory, that the stuff is going to hit the fan in the
fiaSCO, civil, criminal or both. IBM and /or the authorities are giving canopy
and the Noordas a chance to get out, on the theory that they didn't know what
was going on. While this kind of a move probably would not prevent either IBM or
any government authorities from going after them, it would not be necessary to
go after the Noordas or Canopy. If they are actually innocent of wrong doing in
the fiaSCO, which I think is likely, a deal like this would be very just. Why
should anyone go after Canopy or the Noordas if the whole thing was planned and
executed by Yarro et al?

[ Reply to This | # ]

Judge Kimball Gives SCO More Time and IBM Asks for Some
Authored by: kh on Friday, March 11 2005 @ 08:10 PM EST
I don't understand why SCOXE doesn't have to argue the contract issues first
like: that SCOXE owns all code that has ever touched the software it pays
Novell to license to others. It's even not clear that SCOXE has any rights over

the code, it alleges it has inherited from other SCO like companies that
contracted with Novell.

Once that has been established then this discovery might make sense. Before
that it seems very burdensome.

[ Reply to This | # ]

Effort > Value of SCO
Authored by: capn_buzzcut on Friday, March 11 2005 @ 09:03 PM EST
I just don't get it. Let's say that IBM goes through all of this discovery.
Won't IBM's cost of litigation + the cost of discovery be far more than SCO is
even worth? How does IBM expect this to pay off?

Surely IBM weighed the potential cost against the potential gain before ever
deciding not to just buy SCO out. What is it? We're seeing the costs mount up,
but where is the return on their investment?

As fantastic as we all seem to think IBM is right now, I don't believe for one
minute that they're going to all this expense just for the sake of open source
ideals.

One way or another, it's all about the Benjamins. I just can't see how ...
yet.

[ Reply to This | # ]

Is it just me?
Authored by: XORisOK on Friday, March 11 2005 @ 09:10 PM EST
*SCO has now demanded more than was ordered by Judge Wells, claiming they
understand the order to mean that IBM has to produce not only code, but also
hardware and middleware information*

We have seen this before. Did anyone see "Groundhog day"?

As to the PSJ - Have we seen any evidence? AT ALL?

How on earth can you file a suit with no evidence at all, and then demand
discovery? Should not a judge say "Why do you think this?"

The plainiff says "Because of this evidence"

THEN you get discovery.

Apparently, IANAL

---
Cogito Ergo ZOOM - "I think, Therefore I drive fast!"

[ Reply to This | # ]

new on the agreement Yarrow owns SCO
Authored by: Anonymous on Friday, March 11 2005 @ 09:14 PM EST
This is a SCO press release from a link on Yahoo
Dennis

"SCO is pleased that the final settlement between The Canopy Group and its
former management has removed any uncertainty regarding The SCO Group and SCO
shares that Canopy has owned. As SCO's largest shareholder, we look forward to
Ralph Yarro's continued leadership and guidance as chairman of the SCO board. We
also look forward to Darcy Mott's continued participation as a SCO board member.
We believe that SCO will benefit from their long-term view of SCO's shareholder
value."

[ Reply to This | # ]

Eye of the Beholder
Authored by: Anonymous on Friday, March 11 2005 @ 09:23 PM EST
Ralph Yarrow no doubt thinks that SCOXE stock is worth far more valuable than Mr
Mustard thinks, but then he was not going to spoil Ralphs wonderful illusion,
but saw the opportunity to get rid of a turkey and its attendant problems.

[ Reply to This | # ]

IMO: it's not even a fishing expedition
Authored by: Anonymous on Friday, March 11 2005 @ 10:40 PM EST

Scoxe, and the Utah judges, are simply trying to delay, and put pressure on IBM
to settle with scoxe.

The scoxe shills (so-called "journalists") cheer when scoxe gets more
discovery, not because they expect scoxe to find anything; but because it puts
pressure on IBM to settle. The shills have said as much. Scoxe isn't looking for
anything, this has been a scam from the beginning. And everybody knows it,
including the judges.

IMO: the Utah judges will keep helping scoxe in this regard.

Maybe the case will be seen as moot when scoxe goes bankrupt.

[ Reply to This | # ]

Judge Kimball Gives SCO More Time and IBM Asks for Some
Authored by: Anonymous on Saturday, March 12 2005 @ 10:01 AM EST
This may be a dumb question but anyway:
I recall at some point reading that all this discovery information (software)
was not to be seen by sco employees but by an independent auditor. If this is
the case what measures/insurance does IBM have that SCO is using all this
discovery to gleam as much information from IBM for their own future use. I
guess what I am asking is how does IBM or the courts insure that SCO is not
directly benfiting from the discovery?

[ Reply to This | # ]
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