|
|
| Exhibit 2 - Steve Mills' Deposition Excerpts - as text |
 |
|
Thursday, August 25 2005 @ 02:50 AM EDT
|
Here is Exibit 2 from document #496, SCO's Unsealed Exhibits to Reply Memo in Further Support of Renewed Motion to Compel Discovery [PDF] in SCO v. IBM. It's excerpts from the deposition of Steven Alan Mills. Note that it begins on page 26 of the deposition, in mid question. And it skips a page. What is the point of it all? SCO uses it to "prove" that there must have been more emails to and from Sam Palmisano about Linux than the few that IBM turned over to SCO. There may have been, and in fact, likely there were. But that doesn't mean they are still in existence. Corporations don't normally retain email for long periods of time. Why? Because some psycho company may sue you and try to find dirt even where there isn't any. SCO certainly tries here. In SCO's newly redacted #481, Reply Memorandum in Further Support of Renewed Motion to Compel Discovery [PDF], on page 3, it says: In the deposition of Mr. Wladawsky-Berger, for example, IBM's "Linux czar" admitted that he has sent and received emails that expressly concerned that subject matter. Mr. Wladawsky-Berger also admitted that he has corresponded via e-mail with IBM senior executive (now CEO) Samuel Palmisano. Mr. Wladawsky-Berger further testified that his assistant keeps his "e-mail files." . . . Similarly, in the deposition of IBM senior vice-president Steven Mills, Mr. Mills admitted that he has sent and received e-mails regarding Linux, and has sent and received e-mails from and to Mr. Palmisano and Mr. Wladawsky-Berger. So does that mean that Mills sent emails *about Linux* to and from Palmisano or not? We're supposed to think so, but look a little closer at this "evidence". What Mills is asked is if he talks to Palmisano, and Mills says he does. Every week. Palmisano is his boss. Did he have occasion to exchange emails with him? Yes. Then the lawyer asks him if he has ever sent or received emails regarding Linux, and Mills says yes. But the lawyer didn't ask him if the emails were to or from Palmisano. Why not? You and I both know they almost certainly had to have asked that question, no? But it's not in this excerpt. Why not? If the lawyer never asked that question, I'd get a new lawyer, personally, but that's just me. SCO chose this brief excerpt, and while their narrative is accurate as far as it goes, it appears to be intended to make us believe that the emails to and from Mills were Palmisano emails about Linux. Ergo, in the World According to SCO, there are missing emails. Ergo, IBM must be hiding them. I can't say, obviously, but this deposition doesn't, to me, prove it. For example, it doesn't tell us how long email is retained at IBM. And the key question is not included. You know when you see exhibits like this? When you don't have the goods. When you *do* have the goods, you don't need to hint.
*********************
Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[address]
[phone]
[fax]
Stuart H. Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]
Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
Sean Eskovitz (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]
Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]
Attorneys for The SCO Group, Inc.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
|
THE SCO GROUP, INC.
Plaintiff/Counterclaim-Defendant,
v.
INTERNATIONAL BUSINESS
MACHINES CORPORATION
Defendant/Counterclaim-Plaintiff
|
UNSEALED EXHIBITS TO SCO'S
REPLY MEMORANDUM IN
FURTHER SUPPORT OF RENEWED
MOTION TO COMPEL DISCOVERY
[Docket No. 409]
Case No. 2:03CV0294DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells
|
1
EXHIBIT 2
2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
------------------------------x
THE SCO GROUP, INC., a Delaware
corporation,
Plaintiff/Counterclaim Defendant,
against Civil No. 2:03CV-0294 DAK
INTERNATIONAL BUSINESS MACHINES
CORPORATION, a New York
corporation,
Defendant/Counterclaim-Plaintiff
------------------------------x
CONFIDENTIAL
STEVEN ALAN MILLS
New York, New York
Friday, January 7, 2005
Reported by: Steven Neil Cohen, RPR
Job No. 169043
3
Page 26
Mills - Confidential
your job?
A. Yes.
Q. You receive e-mails as part of your job?
A. Yes.
Q. Do you preserve the e-mails that you send?
A. I do not preserve them.
Q. Do you know if the e-mails that you send are being preserved?
A. I know IBM has an archiving process or system.
Q. Your understanding of that archiving process or system is that preserves e-mails?
A. Yes. There is a secretary in my office who takes care of that.
Q. The same holds true for e-mails that you receive?
A. It is all part of the same system.
Q. Have you spoken with anyone about the need for preserving e-mails?
A. No.
4
Page 28
the corporate staff heads as well.
Q. Do you speak with Samuel Palmisano?
A. Yes.
Q. Do you speak with Irving Wladawsky-Berger?
A. Yes.
Q. How often did you speak with Mr. Palmisano if you can estimate it?
A. He is my boss so I am pretty much talking to him every week.
Q. Every day?
A. No, not everyday.
Q. How about Mr. Wladawsky-Berger?
A. A few times a month perhaps; depends on what activities are taking place.
Q. Not as often as you speak with Mr. Palmisano?
A. Again, it would depend upon what is happening but generally, no.
Q. I take it you have had occasion to send e-mails to Mr. Palmisano?
A. Yes.
5
Page 29
Q. You have received e-mails from Mr. Palmisano?
A. Yes.
Q. The same holds true for Mr. Wladawsky-Berger?
A. Yes.
Q. You have had occasion during your tenure at IBM to send e-mails regarding Linux?
A. Yes.
Q. You have received e-mails regarding Linux?
A. Yes.
Q. Another very general question but what kind of documents do you review in your current capacity?
A. Tremendous variability; people prepare presentations. Most things are generally done in presentations form as opposed to paper form.
Q. What is the distinction between presentation form and paperwork?
A. Graphical charts, pictures rather than prose.
6
|
|
|
|
| Authored by: mwexler on Thursday, August 25 2005 @ 02:58 AM EDT |
In the first sentence of the post "Exibit 2" is spelled incorrectly.
[ Reply to This | # ]
|
| |
| Authored by: ankylosaurus on Thursday, August 25 2005 @ 03:05 AM EDT |
Please make links clickable as mentioned on the posting page.
---
The Dinosaur with a Club at the End of its Tail[ Reply to This | # ]
|
| |
| Authored by: ankylosaurus on Thursday, August 25 2005 @ 03:14 AM EDT |
IBM uses Lotus Notes for email. The default retention for an email is 3 months;
the maximum retention is 24 months unless you get special permissions.
Obviously, if you forward yourself an old email before it expires, it acquires a
new retention period, so by repeatedly sending yourself an important email, you
can retain it indefinitely, but it is a confounded nuisance having to do so.
The default retention policy amounts to a lobotomization process at times.
Unless you take steps to preserve the message in a separate storage facility
(typically called a Team Room, but there are other systems also mediated by
Notes for storing documents for the long term), your records are destroyed in a
period from 3 months to 2 years. And it is a nuisance - unless you are dealing
with law suits!
---
The Dinosaur with a Club at the End of its Tail[ Reply to This | # ]
|
- Retention Policy - Authored by: Anonymous on Thursday, August 25 2005 @ 04:38 AM EDT
- 60 days - Authored by: Anonymous on Thursday, August 25 2005 @ 04:54 AM EDT
- Retention Policy - Authored by: Anonymous on Thursday, August 25 2005 @ 08:18 AM EDT
| |
| Authored by: Anonymous on Thursday, August 25 2005 @ 03:34 AM EDT |
For these exhibits, this is all presumably stuff that BSF dowsed out of
discovery. They created this hack job just to give the appearance of substance,
knowing it was empty.
So if Kimball wants to get nitpicky, who is responsible? TSCOG or BSF?
This is BSF doing with discovery what Gupta did with his code comparison; taking
pieces from here and there and pretending they're single blocks of code. We've
debated before if BSF was mislead by SCO or a partner all along, but with these
documents BSF has to be a willing accomplice.
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Thursday, August 25 2005 @ 05:32 AM EDT |
Dear Steven!
I've installed Red Hat 5.2 last week, but I couldn't get the USB port working.
Would you send a technician?
Sincerely,
Sam
[ Reply to This | # ]
|
| |
| Authored by: sproggit on Thursday, August 25 2005 @ 06:11 AM EDT |
Take a look at SCO's logic in this submission to the Court:-
Firstly,
we've got their generalised claim:
In the deposition of Mr.
Wladawsky-Berger, for example, IBM's "Linux czar" admitted that he has sent and
received emails that expressly concerned that subject matter. Mr.
Wladawsky-Berger also admitted that he has corresponded via e-mail with IBM
senior executive (now CEO) Samuel Palmisano. Mr. Wladawsky-Berger further
testified that his assistant keeps his "e-mail files." . . . Similarly, in the
deposition of IBM senior vice-president Steven Mills, Mr. Mills admitted that he
has sent and received e-mails regarding Linux, and has sent and received e-mails
from and to Mr. Palmisano and Mr. Wladawsky-Berger.
Let me
re-write the above, without altering any of the facts:
Mr.
Wladawsky-Berger sends and receives emails relating to Linux.
Mr.
Wladawsky-Berger sends and receives emails to/from his Boss, Sam
Palmisano.
Secondly, let's look at the exact transcript of the
deposition of Steve Mills, where the subject of email is
covered:-
Q. I take it you have had occasion to send e-mails to
Mr. Palmisano?
A. Yes.
Q. You have received e-mails from Mr.
Palmisano?
A. Yes.
Q. The same holds true for Mr.
Wladawsky-Berger?
A. Yes.
Q. You have had occasion during your
tenure at IBM to send e-mails regarding Linux?
A. Yes.
Q. You
have received e-mails regarding Linux?
A. Yes.
Now,
where in any of the above claims by SCO does it state that the emails that were
sent and received by Mr Wladawsky-Berger or Mr Mills on the subject of Linux
were exchanged with Mr Palmisano? Answer: not at all. It doesn't say that,
because that is not what Steve Mills said. Instead, then, SCO have pulled
together unrelated statements from the Mills testimony and placed them adjacent
to eachother in the hope that the reader [the Judge] will take the inference
that SCO want him to take.
I've no doubt in my mind that if the Judge
doesn't spot this one off the bat, that IBM will spot it, will draw the Judge's
attention to it, and will dismiss it accordingly.
But it just goes to
show us...
I guess that when the stakes are this high that a legal team
will be tempted to get creative with the use of language, that this might be
expected, or part of the process. However, from the perspective of a lay-person,
of someone who has been brought up to respect the law and the rule of law,
seeing something like this can be sickening.
It is conduct like this
which undermines the reputation of the law itself. This one act might be small,
barely perceptible, but it's the thin end of the wedge. Minor transgressions
become small ones; small transgressions grow in size and number. Oddly enough, I
don't think it's the individual acts like the one observed here that are the
real damage. I think the real damage is done in the hearts and minds of the
average citizen, who looks at big and far-reaching legal cases like this one [or
DoJ vs Microsoft, or many other similar ones] and sees the obvious distortion
and corruption, then goes away with the opinion that "the legal system is
corrupt".
I resent the fact that SCO's legal team, in their desire to
prove a point or win this case, is willing to play fast and loose with the law
like this.
I resent the fact that as a result of behaviour like this,
the law and the entire legal profession [worldwide] gets devalued.
But
most of all, I resent the fact that by taking steps down this path, SCO are
leading us closer to a point where the innocent are punished, or the guilty
escape justice. By their actions in this single case, they create a precendent
that impacts the law itself, and all those who are governed by
it.
When that happens the law ceases to have meaning or
value.
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Thursday, August 25 2005 @ 08:33 AM EDT |
| So does that mean that Mills sent emails *about Linux* to and from Palmisano
or not? We're supposed to think so, but look a little closer at this "evidence".
What Mills is asked is if he talks to Palmisano, and Mills says he does. Every
week. Palmisano is his boss. Did he have occasion to exchange emails with him?
Yes. Then the lawyer asks him if he has ever sent or received emails regarding
Linux, and Mills says yes. But the lawyer didn't ask him if the emails were to
or from Palmisano. Why not? You and I both know they almost certainly had to
have asked that question, no? But it's not in this excerpt. Why not? If the
lawyer never asked that question, I'd get a new lawyer, personally, but that's
just me.
If SCOG's intent is to fire up more FUD, then this is what I
would expect. "SEE!!!? THOSE EVIL people are HIDING (slam the desk) HIDING, I
say! evidence from us! We have to have MORE DISCOVERY!".
When the law is
against you, pound on the facts
When the facts are against you, pound on the
law.
When both are against you, pound on the table. [ Reply to This | # ]
|
| |
| Authored by: rsteinmetz70112 on Thursday, August 25 2005 @ 09:28 AM EDT |
There must have been a page 27. What was on page 27 the SCOG doen't want the
Judge to see. Clearly they are withholding valuable information from the court.
---
Rsteinmetz - IANAL therefore my opinions are illegal.
"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk
[ Reply to This | # ]
|
| |
| Authored by: seanlynch on Thursday, August 25 2005 @ 09:39 AM EDT |
So basically....
Q: Do you receive e-mails?
A: Yes.
Q: Do you receive e-mails from Mr. Palmisano?
A: Yes.
Q: Do You receive e-mails about Linux?
A: Yes.
And the unasked question...
Q: Do you receive e-mails from Mr. Palmisano about Linux?
What do any of these questions or answers have to do with Palmisano's receiving
or sending of e-mails about Linux? Nothing whatsoever. Just because Mills gets
e-mails from Palmisano and Mills gets e-mails about Linux, it does not mean that
the Linux e-mails came from Palmisano. Do you think Mills gets e-mails from
other folks? Could it be remotely possible?
All this shows is that Steven Alan Mills gets e-mails about Linux. This fits
exactly with what IBM has already told the Court. Palmisano is concerned with
"The Big Picture", or in this case "The Big Blue Picture".
People lower in the pecking order get the details about things like Linux or
DB2, of TSO/ISPF or whatever. Palmisano gets the summary of everything from
them.
Thank you SCOX for taking the time to, once again, prove IBM has been correct
and truthful.[ Reply to This | # ]
|
| |
| Authored by: Parity on Thursday, August 25 2005 @ 09:42 AM EDT |
Actually, if they believe it's highly likely that Sam Palmisano and Steve Mills
did -not- exchange e-mails on the topic of Linux, the right thing to do would be
to -not- ask the key question. If they asked the key question, it would be in
the transcript for IBM's lawyers to highlight, a black and white fact to
contradict their hinting. (Of course, IBM's lawyers could take their own
deposition of Steve Mills... I think... but that would then be their problem to
do so.)
It comes under the heading of 'don't ask the question if you don't want (the
judge and jury) to know the answer.'
It seem to me, if there's any clever lawyering in there at all, it's in -not-
asking that question.
---
IANALATINLAIYRLAYSCWAA[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Thursday, August 25 2005 @ 09:59 AM EDT |
Why? Because some psycho company may sue you and try to find dirt
even
where there isn't any.
Kind of like Groklaw readers taking "Special
Edition: Using Caldera
OpenLinux," a book written years before Caldera even
touched SCO (1998), and
describing it as a "smoking gun?" [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Thursday, August 25 2005 @ 10:16 AM EDT |
SCO:There is a large parking lot surrounding the office you work in is there
not?
IBM: Yes, there is a parking lot.
SCO:What is the capicity of the parking lot?
IBM:What? I'm not sure...
SCO:Isn't it true that the parking lot can hold many hundreds of cars?
IBM:..I believe so, but...
SCO:And what is the acreage of the parking lot?
IBM:...huh, I don't...
SCO:Here is a photo of the entrance to the parking lot. Can you tell me what the
sign says?
IBM:Employees only.
SCO:Is the discovery produced by IBM concerning Linux absolutely every document
that can ever be found.
IBM:We have attempted to produce all...
SCO:But you are not claiming no further Linux documents will ever be found?
IBM:Of course not, if...
SCO analysis:
IBM has obviously made a great effort to hide documents by paving over them and
attempting to hide this by only allowing employees access to the area of the
crime.
SCO requests that the court order immediate excavations to begin at all
documented IBM parking lots to find the documents that IBM has been so intent to
hide.
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Thursday, August 25 2005 @ 03:00 PM EDT |
I've seperated my email out of Outlook for a number of reasons but it's
seperated by Year. The storage, compressed, of that email is between 35 and 50
Megs and growing slightly each year. Uncompressed, the smallest is 200 Megs.
If memory serves correct Outlook can handle up to about a gig of information
prior to becoming unusable.
A couple points:
- With Outlooks'
limit, the email has to be regularly removed or the software itself will cause
issues.
- If the email is seperated and compressed, 5000 employees
storing 35 Megs of disk space = 175 Terabytes
Now, let's
consider the above numbers from the perspective of someone that has to pay the
bill. What is the financial value from the emails that have been saved vs. the
cost of 175 Terabytes of space usage. The space usage increases according the
level of Raid/backup that is in place.
From a systems analyst
perspective, there's very valid reasons to be regularly deleteing emails. From
a business perspective, how much is being spent per year just to store email
copies that don't need to be stored? I'd bet it's an obscene expense.
RAS[ Reply to This | # ]
|
- Ooops, my bad - Authored by: Anonymous on Thursday, August 25 2005 @ 03:10 PM EDT
|
|
|
|
