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The Transcript of the April 21, 2005 SCO v. IBM Hearing
Wednesday, May 18 2005 @ 03:37 PM EDT

At last, thanks to Chris Brown, who picked it up for us at the courthouse, we have the transcript of the April 21, 2005 hearing [PDF] in SCO v. IBM. This hearing was about the SCO motion to compel the deposition of Sam Palmisano and its motion to amend their complaint and some on IBM's motion to limit its 9th Counterclaim's scope. Thanks, Chris! I haven't read it yet myself, but I couldn't wait to share it with you. Let's read it together. Note that it's a huge file, and it may take a while to resolve. Once it does, if someone has time to break it up into pieces, it'd be a kindness for our dialup users.

UPDATE: Here you go, the transcript split into 4 parts:

Part 1
Part 2
Part 3
Part 4

Or in even smaller chunks, about 10 pages each:

Part a
Part b
Part c
Part d
Part e
Part f
Part g
Part h
Part i
Part j

  


The Transcript of the April 21, 2005 SCO v. IBM Hearing | 206 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Thank You Chris.
Authored by: rsteinmetz70112 on Wednesday, May 18 2005 @ 03:47 PM EDT
For this and all of the other work you put in.

---
Rsteinmetz

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

[ Reply to This | # ]

"File is damaged and could not be repaired"
Authored by: Anonymous on Wednesday, May 18 2005 @ 03:53 PM EDT

Is anyone else getting this message when opening the PDF up? I get it under
both Adobe 6.0 and 7.0. :-/

[ Reply to This | # ]

Is the pdf damaged?
Authored by: Chris Lingard on Wednesday, May 18 2005 @ 03:53 PM EDT

Cannot read it here

Error (0): PDF file is damaged - attempting to reconstruct

xref table...

Error: Kid object (page 51) is wrong type (null)

Error: Page count in top-level pages object is incorrect

Error: Couldn't read page catalog

1441792 May 18 20:49 Hearing-2005-04-21.pdf

lincoln:~$ md5sum Hearing-2005-04-21.pdf

b565a894ef9827c6cf0cd15da40e6422 Hearing-2005-04-21.pdf

[ Reply to This | # ]

Off-Topic Posts
Authored by: overshoot on Wednesday, May 18 2005 @ 03:54 PM EDT
Please post off-topic material here. If possible, post links as <a
href="http://www.example.com/">clickable HTML</a> please.

[ Reply to This | # ]

bittorrent for large files
Authored by: kurt555gs on Wednesday, May 18 2005 @ 04:02 PM EDT
I think PJ should have a torrent server set up for these large pdf and other
archives.

This is what bittorrent was meant for. Show the RIAA and MPAA that the main
purpose IS legitimate use.

cheers

---
M$ Delenda Est!
* Kurt *

[ Reply to This | # ]

MathFox?
Authored by: overshoot on Wednesday, May 18 2005 @ 04:03 PM EDT
Most of us have BitTorrent now, so all we'd need would be a tracker at
groklaw.net -- any chance of adding trackers so PJ only needs to seed the
download?

[ Reply to This | # ]

  • Bittorrent - Authored by: Anonymous on Wednesday, May 18 2005 @ 04:28 PM EDT
  • BitTorrent - Authored by: Anonymous on Wednesday, May 18 2005 @ 04:29 PM EDT
  • Bittorrent - Authored by: MathFox on Thursday, May 19 2005 @ 07:28 AM EDT
Link to previous Groklaw story discussing this?
Authored by: Anonymous on Wednesday, May 18 2005 @ 04:27 PM EDT
Can someone please link to the previous Groklaw story discussing this hearing? I
want to read again what the deal was with "trusting our water"... I
think it was mentioned in that. TIA!

[ Reply to This | # ]

The Transcript of the April 21, 2005 SCO v. IBM Hearing
Authored by: Anonymous on Wednesday, May 18 2005 @ 04:52 PM EDT
I have the transcript split into 10 PDFs

pg1-10.pdf
pg11-20.pdf
pg21-30.pdf
pg31-40.pdf
pg41-50.pdf
pg51-60.pdf
pg61-70.pdf
pg71-80.pdf
pg81-90.pdf
pg91-97.pdf

Do you want these posted somewhere?

-archanoid

[ Reply to This | # ]

They allow Segways in court now?
Authored by: whoever57 on Wednesday, May 18 2005 @ 04:53 PM EDT
"Mr. Marriott: May I have just a moment, Your Honor? I can segway easily ....."

Yes, I know, it should be segue. I just found it amusing.

[ Reply to This | # ]

    Transcription Claims Here
    Authored by: sjgibbs on Wednesday, May 18 2005 @ 04:59 PM EDT
    To keep them tidy and facilitate co-ordination.

    Please state page numbers clearly and email results in to PJ.

    Thanks, SJG


    "Efficiency is a clever form of laziness."

    [ Reply to This | # ]

    A matter of timing (humor from transcript)
    Authored by: Anonymous on Wednesday, May 18 2005 @ 04:59 PM EDT
    MR. NORMAND [for SCO]: The differences between this revised schedule and the
    schedule we submitted several weeks before the magistrate's court order relate
    to merely timing.
    THE COURT: Relate to what? [wish I had a picture of His Honor's face at that
    moment]
    MR. NORMAND: Timing. The magistrate court order gave IBM, as we understand it,
    as of yesterdday --
    THE COURT: Most schedules do relate to timing.
    MR. NORMAND: Them I'm right.
    THE COURT: You are right. You are certainly -- I'll take judicial notice of the
    correctness of your last statement.
    Excuse me. Go ahead.
    MR. NORMAND: Thank you, Your Honor, I have that going for me.
    [Bully for you, Mr. Normand.]

    [ Reply to This | # ]

    TSG claiming SCO docs not relevent
    Authored by: whoever57 on Wednesday, May 18 2005 @ 05:02 PM EDT
    Two things seem interesting to me:
  • The references to compilers. This is new AFAIK.
  • TSG is claiming that TSG should not be bound by what old-SCO knew.

    Perhaps one of the lawyers might want to comment on the latter point.

    It also appears that TSG's lawyers were caught in a huge mistake: claiming that documents were produced after the deadline for amended pleadings. Of course IBM's lawyers might be wrong about this, but reading the transcripts it looked like IBM's lawyers had facts to back up this statement, while TSG's lawyers had nothing.

    [ Reply to This | # ]

    • Mistaken identity????
    Authored by: Anonymous on Wednesday, May 18 2005 @ 05:32 PM EDT
    On Page 5, Eskovitz says 'But IBM has attempted to shield Mr. Paul Palmisano'.

    Are they trying to depose the wrong guy? Certainly he's not the CEO of IBM!!! IBM/sjp

    [ Reply to This | # ]

    Eskowitz is an IBM Stooge!
    Authored by: red floyd on Wednesday, May 18 2005 @ 05:49 PM EDT
    He works in Armonk, right by IBM's HQ!

    Obviously his law firm is a stooge for IBM, and is sabotaging SCOX's case!

    ---
    I am not merely a "consumer" or a "taxpayer". I am a *CITIZEN* of the United
    States of America.

    [ Reply to This | # ]

    IBM's discovery (non) failures
    Authored by: Anonymous on Wednesday, May 18 2005 @ 06:28 PM EDT
    I see SCO again claiming IBM withheld discovery for over a year when
    referencing the courts Jan. order near the end of the document. Is the Judge
    ever goign to get tired of hearing this? When is IBM going to start calling them
    on their mis-statements?

    I also liked the part where Mr Normand responding to IBM's inquiry about
    actually being told where the infringing material was - says they (IBM) know
    better then anyone else what they contributed to Linux - more or less wanting
    them to prove they haven't infringed.

    I saw something else there at the end where he suggests IBM should go to the
    court if they aren't satisfied with SCO's interrogatory responses. With the way
    this case has been going maybe IBM should start putting that in all their
    motions and replies - it worked for SCO and CMVC access.

    J

    [ Reply to This | # ]

    Eskovitz seems pretty together
    Authored by: error27 on Wednesday, May 18 2005 @ 07:19 PM EDT
    Eskovitz is much sharper than Darl's brother Kevin. He seems like a
    professional. I think I could get along with him... The judge is always
    ribbing him, but he's smooth... He doesn't get fazed.

    Almost everyone on SCO's side is either a complete scumbag (Yarro) or a complete
    moron (Kevin and Brent). Potentially people with brains can do much more damage
    but it's still a pleasant change.

    [ Reply to This | # ]

    Precedent
    Authored by: overshoot on Wednesday, May 18 2005 @ 07:21 PM EDT
    I love pages 62-64. Once again, Marriott cites dead-on case law. Loads from
    10th Circuit, capped by Procter & Gamble (a ruling of one Dale Kimball!)

    As the Court comments, "I'm a lot more familiar than I ever wanted to be
    with Procter & Gamble."

    [ Reply to This | # ]

    Page 7, Part 4 may explain *why* SCO want to add their new claim
    Authored by: Anonymous on Wednesday, May 18 2005 @ 07:37 PM EDT
    Is the clue why SCO wants to add their Monterey copyright claim to the case

    In this section, SCO tells us they think the issue of SVR4 code in AIX on Power,
    and whether or not it's copyright infringement, turns on the issue of waiver.
    They then also tells us waiver is a fact intensive inquiry that can't be
    resolved by summary judgement.

    In other words, they think they might get this particular claim (even if
    meritless) to a jury, rather than have Judge Kimball destroy it by summary
    judgement.

    And if you track back to the timeline:

    1. From all the quotes of SCO's and Santa Cruz' own documents, it's absolutely
    clear that SCO knew about the conduct underlying the claim (SVR4 code in AIX on
    Power), many many years ago ... but did nothing

    2. From the discovery documents date, you also see that SCO got some discovery
    from IBM about the conduct underlying the claim (SVR4 code in AIX on Power), in
    2003 - months before the deadline for amending pleadings.

    3. From the discovery documents date, you also see that SCO got the rest of
    discovery from IBM about the conduct underlying the claim (SVR4 code in AIX on
    Power), in March 2004 - after the deadline for amendment for pleadings - but
    they didn't move to change the deadline, even though they did file other
    scheduling motions (see next part)

    4. From the SCO's motion in mid 2004 to amend the schedule, they had also this
    info on the underlying conduct, they wanted the schedule amended -- but they
    didn't seek to move the deadline for amending pleadings.

    5. So suddenly in late 2004, despite all this, SCO decides they need to do a
    late amendment to pleadings. What changed? Answer: IBM started filing summary
    judgement motions, but SCO apparently thinks (as they told us in page 7 part 4)
    that a claim based on Monterey/SVR4 wouldn't be subject to summary judgement


    Quatermass
    IANAL IMHO etc

    1. In 2003, 2004, you will also discover that SCO only thought of the idea of
    adding this claim *AFTER* IBM started

    [ Reply to This | # ]

    Let's have some fun - Place your bets
    Authored by: Anonymous on Wednesday, May 18 2005 @ 07:51 PM EDT
    Okay several motions/issues up for grabs

    1. SCO's motion to compel Palmisano deposition? Granted or Denied

    2. SCO's motion to amend their complaint? Granted or Denied

    3. The scheduling. I'm not going to get into the dates, since both SCO and IBM
    agree they are somewhat up in the air because of the Reconsideration motion - so
    let's stick to: Will there be a deadline before the close of fact discovery to
    identify allegedly misused material (as IBM wants) or won't there (as SCO
    wants)?

    Place your bets, with reasons if you like

    My bets will be in a reply to this post, if you want to place your bets before
    seeing mine

    Quatermass
    IANAL IMHO etc

    [ Reply to This | # ]

    Normand runs around PJ
    Authored by: overshoot on Wednesday, May 18 2005 @ 08:11 PM EDT
    Interesting --- on pages 74-79 Normand argues that regardless of what Santa Cruz or Caldera knew about IBM's use of SVR4 code, if IBM thought they didn't have rights to use it then SCOX has a claim. Maybe after all of PJ's work they've decided to dodge the whole question of who knew what and when did they know it.

    IANAL and all that, but this seems incredibly weak.

    For one thing, they don't appear to have any basis for arguing that IBM-the-corporation "thought" any such thing, just questions from employees.

    For another, I've heard of lack of intent being extenuating when the actions were in the wrong, but I've never heard of intent itself being actionable when the actions were unobjectionable.

    Frankly, it looks like SCOX is grasping at straws in the hope of dragging the whole matter of IBM's knowledge and intent before a jury. It's the same thing with 3AC and the Palmisano deposition: they've given up on establishing that IBM did anything wrong and are going for impure motivation.

    [ Reply to This | # ]

    knowledge of the predecessor
    Authored by: codswallop on Wednesday, May 18 2005 @ 08:42 PM EDT
    SCO and IBM have completely different takes on this important issue.

    SCO

    IBM then argues the issue of whether we should be imputed to have what little knowledge Santa Cruz might have had about the subject matter of the claim. We think IBM misses the point there, as well, Your Honor. IBM cite no case for ite proposition and for purposes of rule 15 that palintiff should have knowledge of its predecesor imputed to it. These are the cases that IBM cites, cases in which the defense of laches had already barred the predecessor's claims when the predecessor purported to assign the claims to the successor. These cases make sense. If laches were to preclude the predecessor's lawsuit, he should not be permitted to escape his untimeliness by selling or giving his patent or other intellectual property rights to a successor to then try to file a timly lawsuit.

    IBM

    ...SCO states that it cannot be charged with the knowledge of Santa Cruz... That is wrong as a matter of law. The case law is clear that SCO is charged with what Santa Cruz knew or should have known. See e.g. Ory v. McDonald 68 USPQ 2d 1812, 1817 (C.D. Cal. 2003) (stating that "a successor-in-interest is charged with the knowledge and dilatory conduct of its predecessors" (internal quotation omitted)); Konstant Prods. Inc. v. Frazier Indus. Co,. Inc., No.91-4491, 1993 U.S. Dist. LEXIS 7957, at *47 (N.D. Ill. June 7,1993) (ruling that defendant was "charged with the knowledge of [its predecessor-in-interest] and the consequences of his dilatory conduct")(attached as exhibit B); MGA, Inc. v. Centri-Spray Corp., 639 F. Supp 1238, 1242 (E.D. Mich. 1986)(finding that successor-in-interest is charged with "consequences of [predecesssor-in-interest's] knowledge and dilatory conduct.")

    I find SCO's argument inconsistent. In their view if the hypothetical sale occurred a few days before the claim would have become stale, the sale would, in effect, reset the clock. Not only that, but it would actually prevent the reset clock from restarting. I can see splitting the difference and employing a reasonable man test, or the like, but I don't see Judge K. giving them a pass on this.

    As IBM says, SCO's other point, that the knowledge is a matter of fact and can't preclude the amended claim is ridiculous.

    ---
    IANAL This is not a legal opinion.
    SCO is not a party to the APA.
    Discovery relevance is to claims, not to sanity.

    [ Reply to This | # ]

    How important is the SVR-4 printing subsystem?
    Authored by: Anonymous on Wednesday, May 18 2005 @ 09:46 PM EDT
    I was noticing, in Mr. Mariott's list of documents showing that oldSCO knew (or
    should have known) about the SVR-4 code in AIX for Power, that a lot of the
    places that explicitly said "SVR-4" were talking specifically about
    the "SVR-4 printing subsystem".

    This raises a question: How important is this printing subsystem in the overall
    SVR-4 code? Is it a major part of the changes between SVR-3 and SVR-4, or is it
    a small piece in with a lot of other changes?

    (For that matter, what are the major changes from SVR-3 to SVR-4? Are there
    other noteworthy things that were added or changed, which might show up in IBM's
    press releases and advertisements from the time?)

    Mr. Mariott did seem to imply that the printing subsystem was a large part of
    SCOX's copyright-infringement list, so I'm wondering how big a part it is, and
    what else is on that list.... That's all in documents that are still sealed,
    though, right?

    [ Reply to This | # ]

    The Transcript of the April 21, 2005 SCO v. IBM Hearing
    Authored by: sk43 on Wednesday, May 18 2005 @ 10:46 PM EDT
    Or if he actually prepares. On p. 74, he states "I do not purport to have
    personal knowledge about when the documents were produced, but it is my
    understanding ..." Doh! This guy must be running from one case to the
    next with no time in between; there is no other explanation for such a waffly
    statement. Maybe this is the standard for the field, but it will not work
    against Marriott in this case.

    [ Reply to This | # ]

    • Oops! - Authored by: sk43 on Wednesday, May 18 2005 @ 11:08 PM EDT
    What is Normand admitting?
    Authored by: Anonymous on Wednesday, May 18 2005 @ 11:28 PM EDT
    Normand, page 75 lines 20 ff:
    Now, with regard to another matter, IBM spends a lot of time going through the documents, the documents that we had not seen before, internal documents from Santa Cruz. [emphasis added]

    If Santa Cruz did not sell its interest in the Monterey deal to Caldera, this is not a problem, but SCOG has problems aplenty elsewhere.

    If Santa Cruz sold its Monterey interests to Caldera, but withheld the documents about the matter, then Caldera/SCOG doesn't really have a cause of action against IBM in this. Their cause of action is against Tarantella/Sun for some misbehavior in the sale.

    If Santa Cruz sold Monterey to Caldera, and delivered all the documents, where's the beef?

    If Santa Cruz sold Monterey to Caldera, and Caldera didn't care enough about the documents to read, understand, and preserve them for possible legal action, what's their complaint against IBM? SCOG's indiligence isn't IBM's doing.

    ---
    --Bill P, not a lawyer. Question the answers, especially if I give some.

    [ Reply to This | # ]

    Joining in - Bets are ...
    Authored by: dmarker on Thursday, May 19 2005 @ 02:36 AM EDT
    SCO's motion to compel Palmisano deposition?
    Denied without predjudice. Reason: Lack of evidence of any useful connection at
    this juncture. A Palmisano delegate such as Wladasky-Berger can be deposed in
    Palmisano's place.

    2. SCO's motion to amend their complaint?
    Denied!

    3. The scheduling. Will there be a deadline before the close of fact discovery
    to identify allegedly misused material?
    I have no call on this.

    Doug M

    [ Reply to This | # ]

    The Transcript - I'm feeling lonely again
    Authored by: tbogart on Thursday, May 19 2005 @ 02:58 AM EDT
    I did a quick scan down the comments so far, and I seem to be the only one to
    blow a gasket right at page 4 - the opening statement by Eskovitz:

    "... IBM took the shortcut of misapproriating SCO's intellectual property
    in Unix and contributing Unix' eterprise strength strength features into
    Linux."

    Umm, right back to the zero evidence shown 'million lines of code' garbage,
    nevermind about Monterey.

    Maybe it is just the Gelnmorangie ....

    <thump>

    [ Reply to This | # ]

    The Transcript of the April 21, 2005 SCO v. IBM Hearing
    Authored by: Anonymous on Thursday, May 19 2005 @ 09:04 AM EDT
    I think that IBM are trying prevent the deposition of Sam Palmisano simply to
    annoy TSCOG, after all the running round that IBM have had. It will also serve
    as a big red herring for TSCOG. If IBM don't want him to talk then there must
    be something big hiding in there. As a diversionary tactic there couldn't be
    better. Expect TSCOG to waste an awful lot of time and money on getting
    nothing.

    [ Reply to This | # ]

    The Transcript of the April 21, 2005 SCO v. IBM Hearing
    Authored by: Anonymous on Thursday, May 19 2005 @ 04:36 PM EDT
    A quick ASCII version with most of the original formatting preserved.

    [ Reply to This | # ]

    Over-value of their "Intellectual Property"
    Authored by: GLJason on Thursday, May 19 2005 @ 08:21 PM EDT
    The thing that I cannot get by is that SCOX is trying to get way more money out of their software than it's worth. What exactly was the purchase price that Santa Cruz paid to Novell for the Unix Business? In SCOX's suit against Novell they claim it was stock worth over $100 million at the time. What did Caldera pay Santa Cruz for those rights? If we look at their 10-Q (do a search for 'Purchase price allocation' to find the relevant section), it's about 5.8 million for the technology (plus $28 million for the distribution channel which they've run into the ground, and $66 million for 'goodwill', which they have squandered).

    Now we have a quote from SCOX's lawyer in the transcript:

    "... which is that the corporate motive and intent of IBM in throwing its weight and billions of dollars that have been publicly reported behind Linux is the reason why IBM took the shortcuts that SCO claims it did and misappropriated SCO's code in order to upgrade Linux as quickly as it could to make it enterprise-hardened."

    So SCOX bought the technology from Santa Cruz for roughly $6 million and they are trying to say that IBM has harmed them to the tune of $5 billion? If the technology really is worth $5 billion, what did SCOX do in the 4 years since they bought it to make it worth so much?

    [ Reply to This | # ]
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