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| IBM Responds to SCO's "Renewed" Motion to Compel and Files One of Its Own |
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Tuesday, September 27 2005 @ 11:58 PM EDT
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IBM has filed four documents regarding discovery, a Memorandum in Opposition to SCO's Renewed Motion to Compel Discovery [PDF], plus a Declaration of Daniel Frye [PDF], co-founder and Vice President responsible for managing the Linux Technology Center at IBM, in support. Mr. Frye takes on the task of helping Judge Wells to understand that Linux is not developed the way SCO mistakenly imagines it is, or pretends to imagine it is. He also explains how incredibly burdensome and expensive it would be for IBM if Judge Wells were to grant SCO's latest discovery request.
Then IBM has some discovery requests of its own, in a Motion to Compel Production of Documents on SCO's Privilege Log [PDF] and a Memorandum in Support [PDF] of the motion. The preliminary statement in the opposition memorandum to SCO's "renewed" motion to compel tells the IBM side of the story: Preliminary Statement
SCO asks the Court to require IBM to produce massive amounts of information about the development history of Linux under the pretext that IBM has thumbed its nose at a prior order of the Court compelling IBM to produce the documents SCO now seeks. Not only has the Court not required IBM to produce the information SCO seeks, it has ruled repeatedly that SCO is not entitled to it. Linux is an operating system that has been , and is being, developed in the public view. More than enough information about the history of its development has been available to SCO from the beginnning of the case. SCO's "renewed" motion to compel is just another attempt -- in a long line of attempts -- to create a false pretext for an extension of the schedule by seeking discovery that is irrelevant and unduly burdensome and would require many months, to produce. We respestfully submit that SCO's motion should be denied. IBM goes on to argue the following points: 1. The court never ordered IBM to produce Linux development history, only nonpublic information, which IBM has produced already. IBM has a funny footnote 2, where it lists all 8 briefs SCO has filed in connection with prior discovery-related motions: a memorandum in support of its motion to compel, a reply memorandum in support of the motion to compel, a memorandum regarding discovery, a reply memorandum regarding discovery, a memorandum in support of its renewed motion to compel, a reply memorandum in support of its renewed motion to compel, a supplemental memorandum regarding discovery and a reply memorandum in further support of its supplemental memorandum regarding discovery, none of which, IBM says, "sought an order compelling IBM to produce the development history of IBM's Linux contributions." (This reminds me. I spent a couple of hours trying to find an IBM answer to one SCO motion to compel, #365, later filed in redacted form as #472. I simply don't see any response by IBM, unless #406 is it, although I see SCO referring to one. If anyone else can figure it out, please email me or leave a comment pointing me in the right direction. I just personally can't find IBM's response regarding the documents requested regarding the Linux strategy and the 30(b)(6) witnesses.)
2. Since the court never ordered any such production of Linux materials, there is no support for SCO's request for sanctions on the basis of IBM's alleged "continued and persistent refusal to provide such Court-ordered and plainly relevant information." Indeed, IBM states, "if anyone deserves sanctions, it is SCO -- for asking the Court to compel production of documents the Court has twice before ruled IBM need not produce." 3. It's late in discovery, and granting SCO's wish for all Linux development history might delay the litigation again.
4. IBM has repeatedly asked SCO -- and the court has ordered SCO -- to provide a detailed description of its Linux-related claims. SCO still hasn't done so. What Linux code does SCO assert rights to? Until SCO answers that question, and thus provides "an appropriate range for further discovery", IBM should not be forced to attempt to respond further to SCO's request.
5. What they are asking for is immaterial, unnecessary and irrelevant, given that SCO has unfettered access already and given the type of evidence it needs to prove its claims. Linus is developed in full public view. A wealth of information is available to SCO about the development of patches -- such as an email archive tracking the various patches submitted and the community's comments on such patches -- that is publicly available for the NUMA project, JFS, EVMS, RCU and AIO.
6. IBM has already turned over all nonpublic Linux materials. SCO has enough in hand now to fully assess the validity of its claims. It has AIX, Dynix, its own System V Unix, and IBM's actual contributions to Linux. It has yet to demonstrate the relevance of all the AIX and Dynix code to this case. And despite all the Linux information already produced to SCO, it has yet to comply with the Court's order to provide IBM with a more specific description of its claims or supplement its interrogatory responses or define the scope of permissable discovery.
7. Unlike AIX, there is no centralized repository for Linux development work at IBM. To do what SCO is now demanding would be a massively burdensome task for IBM.
8. The timing of this "renewed" motion suggests it is really about delay, and taking time to gather all that SCO now requests, just 4 months before discovery is supposed to be finished, would put the schedule in doubt. IBM then brings its own Motion to Compel. What it wants is documents, hundreds of them. SCO is apparently claiming privilege on documents created "by and for third parties" AT&T, USL, Novell, and Santa Cruz Operation, including a Steve Sabbath communication regarding legal advice regarding the IBM contract negotiations. As you will remember, Sabbath was in-house counsel for Santa Cruz and later for Tarantella. SCO can't claim privilege over documents created by or for lawyers who represented those other companies, IBM points out, with cases to support their assertion. The attorney-client privilege doesn't pass with assets, only with corporate control. This goes to the heart of who The SCO Group really is, and what it actually owns. SCO has long pretended to be Santa Cruz, but IBM at last explains the whole history to the court, and describes the transfer of assets, not ownership, that we at Groklaw know so well. Significantly, in footnote 2 of its Memorandum in Support of its motion, IBM foreshadows more to come on this topic and references the Novell-SCO copyright dispute, saying "IBM reserves the right to challenge SCO's ownership claims over any and all UNIX assets, however, including the copyrights at issue in the Novell litigation." IBM also reserves the right to bring further motions. And as regards this motion, it asks the court to order SCO to turn over the documents to IBM. So, dueling discovery motions. This is beginning to look like the good old days of furious motion practice, except better, because SCO is very much on the defensive now, and going down slow. And that is true no matter what the court orders in the way of discovery.
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| Authored by: pajamian on Wednesday, September 28 2005 @ 12:29 AM EDT |
...
---
Windows is a bonfire, Linux is the sun. Linux only looks smaller if you lack
perspective.[ Reply to This | # ]
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- Corrections Here Please - Authored by: Anonymous on Wednesday, September 28 2005 @ 12:31 AM EDT
- some of 'em - Authored by: Anonymous on Wednesday, September 28 2005 @ 12:32 AM EDT
- Corrections Here Please - Authored by: Juggler9 on Wednesday, September 28 2005 @ 12:44 AM EDT
- Corrections Here Please - Authored by: Anonymous on Wednesday, September 28 2005 @ 12:49 AM EDT
- Block quote formatting error - Authored by: Anonymous on Wednesday, September 28 2005 @ 12:53 AM EDT
- Corrections Here Please - Authored by: devnull13 on Wednesday, September 28 2005 @ 01:03 AM EDT
- Corrections Here Please - Authored by: jbb on Wednesday, September 28 2005 @ 02:49 AM EDT
- S instead of X - Authored by: Anonymous on Wednesday, September 28 2005 @ 05:07 AM EDT
- Point 5. Linus is developed in full public view. - Authored by: Anonymous on Wednesday, September 28 2005 @ 05:39 AM EDT
- Memorandum in Support [PDF] - Zero Byte File? - Authored by: Anonymous on Wednesday, September 28 2005 @ 05:47 AM EDT
- Corrections Here Please - Authored by: danb35 on Wednesday, September 28 2005 @ 06:35 AM EDT
- Linus is developed in full public view - Authored by: mnuttall on Wednesday, September 28 2005 @ 08:20 AM EDT
- asseets -> assets - Authored by: talexb on Wednesday, September 28 2005 @ 08:27 AM EDT
- s/respestfully/respectfully - Authored by: SammyTheSnake on Wednesday, September 28 2005 @ 10:35 AM EDT
- Correction in item 5. - Authored by: Anonymous on Wednesday, September 28 2005 @ 10:52 AM EDT
- linus -> linux EOM - Authored by: Anonymous on Wednesday, September 28 2005 @ 03:42 PM EDT
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| Authored by: pajamian on Wednesday, September 28 2005 @ 12:30 AM EDT |
Usual stuff about clickable links, etc ...
---
Windows is a bonfire, Linux is the sun. Linux only looks smaller if you lack
perspective.[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, September 28 2005 @ 12:30 AM EDT |
| Movement at last [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, September 28 2005 @ 12:40 AM EDT |
He states "I estimate that the materials requested amount to hundreds of
thousands of documents, comprising a million pages of paper or more."
Boy, I bet that will get Darl salivating...[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, September 28 2005 @ 12:57 AM EDT |
Your fourth document link, the Memorandum in support of IBM's motion, seems to
have a problem. Acroreader tells me that it is damaged and cannot be repaired.
Larry N.[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, September 28 2005 @ 01:09 AM EDT |
Am I the only one with this problem ?
http://www.livejournal.com/users/groklaw/438078.html [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, September 28 2005 @ 01:18 AM EDT |
| A good IBM-516.pdf can be found here. [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, September 28 2005 @ 01:38 AM EDT |
I know we have all joked that in responding the the courts order of IBM
producing "ALL non-public Linux contribution information", that IBM
would just hand SCO a blank piece of paper...
But, in IBM's Memorandum it clearly says (on page 13) that it has "fully
produced" this information "including a list, with names and contact
information, for all the current and former IBM employees thought to have made
contributions to Linux and production of all of IBM's Linux patches that might
not be publicly available."
Now just hold on a second, what in the world can they be talking about? Mr.
Frye's declaration expounds upon the fact that the Linux development happens in
full public view on the Internet. So, how can there be "...patches that
might not be publicly available"?
I'm a little confused as to how IBM can argue that everything happens in public,
yet admits in the same document that some things may not be publicly available?
Are these just the patches that may have been submitted but not accepted? But
that can be, because if they were submitted they are publicly available even if
they were not accepted.
Could someone who is smarter than I (read: most of you ;-), please explain?[ Reply to This | # ]
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- "ALL non-public Linux contribution information" - Authored by: bsm2003 on Wednesday, September 28 2005 @ 01:54 AM EDT
- "ALL non-public Linux contribution information" - Authored by: Anonymous on Wednesday, September 28 2005 @ 01:58 AM EDT
- You might have non-public submissions, but not contributions. - Authored by: Anonymous on Wednesday, September 28 2005 @ 02:26 AM EDT
- "ALL non-public Linux contribution information" - Authored by: jbb on Wednesday, September 28 2005 @ 03:12 AM EDT
- Abandoned contributions - Authored by: Anonymous on Wednesday, September 28 2005 @ 05:28 AM EDT
- "S390 non-public Linux contribution information" - Authored by: Anonymous on Wednesday, September 28 2005 @ 07:51 AM EDT
- Other possibilities - Authored by: Anonymous on Wednesday, September 28 2005 @ 08:41 AM EDT
- "Would a one-off patch direct to a customer be a non-public linux patch?" - Authored by: Anonymous on Wednesday, September 28 2005 @ 10:04 AM EDT
- The kernel mailing list can be considered non public - Authored by: Anonymous on Wednesday, September 28 2005 @ 01:02 PM EDT
- "ALL non-public Linux contribution information" - Authored by: eskild on Wednesday, September 28 2005 @ 01:34 PM EDT
- What is "Linux"? What is a "contribution"? - Authored by: arch_dude on Wednesday, September 28 2005 @ 08:26 PM EDT
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| Authored by: jmc on Wednesday, September 28 2005 @ 03:22 AM EDT |
In page 7 of the memo, SCO has "subsequently worked to create the
appearance that it and Santa Cruz are one and the same entity".
I think Judge K was onto that point but it is nice to see IBM really working it.[ Reply to This | # ]
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| Authored by: AndyC on Wednesday, September 28 2005 @ 03:54 AM EDT |
Is it me, or was teh tone of this reply more agressive/annoyed than we've seen
before?
I get the impression that IBMs lawyers are deliberately using fairly impolite
words to highlight certain points to the judge.
What does everyone else think?
Andy[ Reply to This | # ]
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| Authored by: SilverWave on Wednesday, September 28 2005 @ 05:33 AM EDT |
Oh oh :(
Anyone got a cluestick?
---
"They [each] put in one hour of work,
but because they share the end results
they get nine hours... for free"
Firstmonday 98 interview with Linus Torvalds[ Reply to This | # ]
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- Judge Wells :( - Authored by: jplatt39 on Wednesday, September 28 2005 @ 07:08 AM EDT
- Plank/Eye - Authored by: SilverWave on Wednesday, September 28 2005 @ 02:24 PM EDT
- Plank/Eye - Authored by: Anonymous on Wednesday, September 28 2005 @ 09:27 PM EDT
- Plank/Eye - Authored by: Anonymous on Wednesday, September 28 2005 @ 09:58 PM EDT
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| Authored by: Anonymous on Wednesday, September 28 2005 @ 06:54 AM EDT |
I can't help but wonder if we will see IBM try to bill SCO's attorney's for all
the unnecessary discovery work. It seems that the attorney asking for discovery
should be responsible for only asking if there is a reasonable chance of finding
something. If they can't show reasonableness in the end they should get the
bill for the cost of production.
;-)[ Reply to This | # ]
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| Authored by: pfusco on Wednesday, September 28 2005 @ 08:54 AM EDT |
| Why is it that IBM never introduced a motion asking that The SCO Group be
identified as Caldera that during the course of this trial given that there are
two corporate entities quite gemaine to the litigation that are or have used the
"SCO" brand. Given the history of the allegations and the way Unix has
intertwined itself with those to organisations I dont see how the judge could
have refused to allow that in order to avoid any confusion.
Of course the
SCO Group would pitched a real hissy fit about it, but I believe we wouldnt have
seen half as many motions from them if that were so ordered by the
court. ---
only the soul matters in the end [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, September 28 2005 @ 09:43 AM EDT |
... in the Novell case:
"SCO's claims of privilege over Novell documents is particularly striking
given that SCO and Novell are adverse parties in litigation pending before this
Court - litigation concerning ownership of the UNIX assets that SCO apparently
believes permit it to assert privilege over communications between Novell and
Novell's lawyers."
Your honor, since Novell once owned UNIX all work done by their lawyers in this
case, including motions and depositions, belongs to us and we do not consent to
their being submitted in this case.
In the meantime, here are are initial 55 motions to compel discovery ...
[ Reply to This | # ]
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| Authored by: turambar386 on Wednesday, September 28 2005 @ 12:35 PM EDT |
My prediction == Brooke grants both motions.
She has a history of saying "yes" over and over again to SCO and I see
no reason she is going to stop. However, she can't very well say yes to SCO
again without also granting IBM's motion.
[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, September 28 2005 @ 04:39 PM EDT |
Frankly, I doubt very much that Judge Wells doesn't understand the situation wrt
IBM's "non-public" contributions to Linux. The very fact that IBM has
submitted (non-blank) documents in response to that request shows that the whole
concept is not so silly as it may sound to us geeks.
However, if there is some further clue application required, ISTM that there is
a direct analogy that might help, in that OSS development is just like our legal
system in this respect.
What would the judge say if someone brought a complaint based on a
"non-public" statute? Sure there are discussions behind closed doors,
but the essential parts of the whole procedure, from introduction, to committee,
to passage and signing, is right out in the open, fully documented in publically
accessible archives. And if it ain't in the public record, legally speaking, it
doesn't exist. Just like the "non-public" parts of Linux.
[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, September 28 2005 @ 05:06 PM EDT |
In the memorandum in opposition (513), on page two, the first footnote, IBM
refers to a "September 26, 2005 Declaration of Todd M. Shaughnessy".
Is that something I just missed, or I'm confused about? From 513, it seems to be
another declaration beyond the daniel frye one, found above.[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, September 28 2005 @ 05:47 PM EDT |
All contributions by IBM are made by IBM employees (mostly) but are all
contributions by IBM employees made by IBM? In reading the IBM filings it is not
clear which catagory the lawyers are talking about, or even if they are
recognizing a distinction. It is clear that there are some contributions to
Linux prepared by IBM employees in the course of their employment (Contribution
Type A). Presumably, given the kind and quality of people employed by IBM there
are contributions to Linux prepared by people in their personal capacity, who
just happen to also work for IBM (Contribution Type B). Unless IBM has an
employment policy that either prohibits that, or requires disclosure thereof,
those personal Linux contributions are not within IBM's control or even
knowledge, yet we all know the noise and histeria we will hear from NewSCO about
them.
So should we read the recent filings as referring to both types of
contributions, or just Type A? I couldn't tell.
JG
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| Authored by: Anonymous on Wednesday, September 28 2005 @ 06:03 PM EDT |
IBM provided them with a workstation to access IBM's code, perhaps SCO should
request a computer with internet access since they don't appear to have one
themselves to access the very Linux information they seek -- with plenty of
instructions of course.
Hook up computer
Turn it on
Bring up web browser
go to google, yahoo, etc.
search for Linux history......
[ Reply to This | # ]
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| Authored by: journeyman on Thursday, September 29 2005 @ 08:24 PM EDT |
Showing off how goddamn committed they are, and have been, to Linux.
If I were a Linux contributor, I'd be so proud. Of IBM. Of myself, maybe. But
mostly I'd be proud of what I had helped to create.[ Reply to This | # ]
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