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SCO's Reply Memo in Support of their "New & Renewed" Motion to Compel - text |
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Thursday, December 01 2005 @ 02:16 AM EST
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Here's SCO's Reply Memorandum in Further Support of SCO's New Renewed Motion to Compel [PDF]. This has to be my all-time favorite name for a motion from SCO's never-ending supply of motions to compel. New *and* renewed. Are these dudes creative or what? Admit it. They are never boring. The text is by the wonderful Steve Martin, who never gets tired. Just like SCO. As long as they keep a-tickin', so do we.
SCO is a little on the defensive here. They try to explain why they are filing a new renewed motion when the judge told them to withdraw the prior motion and file a new one. That's a bit hard to pull off, and that section is awkward. And they are just sure, sure, sure that there have to be more emails and documents that IBM hasn't turned over. They believe it because they read a New York Times article from 2000 about an IBM 10-page report on the IBM Linux strategy, and IBM hasn't turned over any such document. They also think they know about an email from Sam Palmisano, and IBM never turned that over either. I have a word for SCO. Just because the New York Times says something, it doesn't make it necessarily so. I don't know if there are such documents or not, but I can say in all honesty, I've never yet been even peripherally involved in any news story that was reported 100% accurately. I can't figure out what in the world SCO expects the judge to do for them. IBM says they already turned over everything relevant from their executives. (IBM's opposition memo to this SCO motion is here, if you want to follow the arguments closely.) SCO thinks there must be more, but it admits it can't know: Although SCO of course does not and cannot know what responsive documents exist (except, of course, the non-produced documents SCO identified in support of its Renewed Motion), SCO submits that the near-complete absence of responsive production (especially when considered in light of the responsive documents that SCO has found and therefore knows that IBM has not produced), means that IBM has not produced many such documents and materials. But how is the judge to order more turned over based simply on SCO's belief system? Torture is out. So what is she supposed to do next? As for any email SCO thinks should exist, IBM suggests that they just ask Mr. Palmisano at his deposition all about it. SCO says that won't work. Why not? Because he will just say he turned over everything, SCO says. And of course, SCO will not believe his testimony. In fact, they disbelieve it before he even gives it. Now, that's suspicion. Are they suggesting he will lie? Or are they telepathic or have the power to predict future answers to not-yet asked deposition questions? Yes, it's offensive and rude. I don't think the judge will like it, either. SCO's problem, in my opinion, is that it views others with pathological suspicion. I have my own theory as to why that might be, based on my life's experiences. I have long observed, for example, that liars assume everyone lies. If you tell a liar the truth, they never believe you. Haven't you noticed that too? So folks who persistently view others suspiciously, in my experience, are telling you how trustworthy they themselves are. A dark heart is a terrible thing to live with, and I feel sorry for them. Truly. Lawyers can burn out, you know, especially litigators. Their significant others need to be alert to signs that it's time to stop. I'm quite serious. Thinking the way you have to as a litigator can affect you emotionally. That's partly why you often see lawyers who change careers and either write books or teach or just anything to get out of courtrooms. It's a hard profession. Very high stress. SCO had made the suggestion earlier that IBM be ordered to turn over every document that contains the word Linux, but after getting rebuked at the last hearing, I think even SCO accepts that this isn't going to be ordered, so now they just ask that the judge order IBM to turn over "documents from its high-level executives relating to its adoption and promotion of Linux." Been there, done that. The other request SCO has is to ask the court to make IBM give them somebody to testify about its discussions "concerning UNIX licensing rights, limitations, and potential liabilities, in connection with IBM's acquisition of Sequent." IBM objects on the grounds that "any such discussions would have involved IBM's attorneys and are therefore privileged." SCO argues that because Sequent was at those meetings, their presence "as a third party" destroys the privilege. Oh, say. Talk about turn on a dime. IBM bought Sequent, and so all the arguments SCO has made [PDF] to hide behind privilege regarding documents by AT&T, Novell, Santa Cruz, etc. which IBM asked for from SCO's privilege log would seem to apply quite nicely here on IBM's behalf. Or am I missing something? That isn't my favorite touch, though. My favorite is that SCO, having been publicly scolded by the judge at the last hearing for misinterpreting her prior orders, now accuses IBM of misinterpreting her October 12th order. See what I mean? *************************
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)
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.
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REPLY MEMORANDUM IN
FURTHER SUPPORT OF SCO'S NEW
RENEWED MOTION TO COMPEL
DISCOVERY
Case No. 2:03CV0294DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells
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1
Plaintiff, The SCO Group, Inc. ("SCO"), respectfully submits this Reply Memorandum in
Further Support of its New Renewed Motion to Compel Discovery.
BACKGROUND
Considering the lengthy history at issue, SCO submits that a brief review of the
background to SCO's New Renewed Motion to Compel Discovery is in order.
During the hearing before this Court on February 6, 2004, SCO argued that IBM had
failed to identify certain individuals as potential witnesses, and SCO requested that IBM produce
documents from the files of those individuals:
What we have gotten from I.B.M. is working its way up the ladder, despite
the fact that on October 28th and other occasions I have spoken with
representatives of I.B.M. and said we want the documents and materials from
Sam Palmisano, from Irving Wladawsky-Berger, the key executives that are
intimately involved in the Linux project.
In our reply memo in support of this motion to compel we in fact provided
an article from the New York Times where Mr. Palmisano is identified as the
leader of moving I.B.M. into the Linux movement. Mr. Wladawsky-Berger is a
core, critical person and they are not mentioned in any of their interrogatory
answers and we have gotten no documents from them.
. . .
There is that New York Times article that was attached to our reply memo,
it identifies and there was a ten page report that he and Mr. Wladawsky-Berger
and a couple of others put together in deciding whether I.B.M. should shift gears
and go to Linux. We don't have that ten page report and it is a critical document.
Those are the things that we have asked for. We have had specific conversations
with Christine Arena at Cravath asking specifically for Mr. Palmisano stuff, for
Mr. Wladawsky-Berger, Paul Horn, Nick Bowen, those peoples' information. We
have not gotten it.
2/6/04 Hr'g Tr. at 22-23 (emphasis added).
In its subsequent Order dated March 3, 2004 (the "March 2004 Order"), this Court
acknowledged the requests for documents that SCO had made during the hearing:
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Although not part of SCO's official written motion, SCO raised these discovery
issues at oral argument and also alleged in its written memoranda that IBM failed
to adequately respond to interrogatories and document requests that are the
subject of these discovery items.
March 2004 Order at 5 n.1. In addressing those document requests, the Court then precisely
tracked the arguments that SCO had made during the hearing. That is, the Court ordered IBM to
respond to SCO's general request for documents from the key executives (such as Messrs.
Palmisano and Wladawsky-Berger) involved in the Linux project, and then specifically alluded
to the example of the same New York Times article to which SCO had referred:
IBM is to provide documents and materials generated by, and in possession of
employees that have been and are currently involved in the Linux project.
IBM is to include materials and documents from executives including inter alia,
Sam Palmisano and Irving Wladawsky-Berger. Such materials and documents
are to include any reports, materials or documents from IBM's "ambitious Linux
strategy." Steve Lohr, A Mainstream Giant Goes Countercultural, I.B.M.'s
Embrace of Linux Is a Bet That It Is the Software of the Future, N.Y. Times,
March 20, 2000, Business/Financial Desk. The Court finds these materials are
relevant because they may contain information regarding the use or alleged
misuse of source code by IBM in its contributions to Linux.
March 2004 Order at 4-5 (¶ 3).
In July 2004, SCO moved to compel IBM to produce such documents. SCO argued
(among other things) that it did not seem possible that IBM's senior executives and Board of
Directors — who indisputably are "involved in the Linux project" — did not have any e-e-mail's,
correspondence, or almost any other documents concerning IBM's Linux strategy. This Court
heard argument on that motion in October 2004. During the hearing, IBM promised that they
would "search again" for responsive documents from the senior executives. On October 20,
2004 (the "October 2004 Order"), the Court ordered:
IBM is [to] provide affidavits from the Board of Directors, Mr. Palmisano and
Mr. Wladawsky-Berger regarding production of all non-privileged documents
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pertaining to IBM's Linux strategy. The affidavits are to be filed within 30 days
from the entry of this order.
October 2004 Order at 1 (emphasis added). SCO filed its Renewed Motion to Compel when
IBM submitted cursory affidavits and produced very few additional documents pertaining to
IBM's Linux strategy.
In support of that Renewed Motion, SCO specifically identified, for example, an e-mail
from Mr. Palmisano discussing in detail IBM's decision to embrace Linux, which document
IBM has not produced; and cited Mr. Wladawsky-Berger's deposition testimony where he
admitted that he had sent and received e-mails pertaining to IBM's Linux strategy, which
documents IBM has not produced. IBM has never addressed its failure to produce such
documents. In its Renewed Motion, SCO proposed as a remedy — considering what SCO
regarded as IBM's efforts to exercise its discretion to construe the Court's Orders too narrowly —
that the Court simply order IBM to produce from the relevant files any document containing the
word "Linux".
At the scheduled hearing for SCO's Renewed Motion, on October 7, 2005, the Court
ordered SCO to file a new motion after SCO had considered the materials IBM had produced
since the Renewed Motion. Pursuant to those instructions, SCO compared the list of outstanding
materials cataloged in its Renewed Motion to the materials that IBM had produced in the interim.
SCO confirmed that IBM has failed to cure the apparent deficiencies enumerated in the Renewed
Motion, and therefore filed this New Renewed Motion.
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ARGUMENT
Upon SCO's New Renewed Motion, the question remains whether, with respect to its
senior executives and Board of Directors, IBM has produced all of the documents and materials
"generated by, and in possession of employees that have been and that are currently involved in
the Linux project," "from IBM's 'ambitious Linux strategy'," and "pertaining to IBM's Linux
strategy." Although SCO of course does not and cannot know what responsive documents exist
(except, of course, the non-produced documents SCO identified in support of its Renewed
Motion), SCO submits that the near-complete absence of responsive production (especially when
considered in light of the responsive documents that SCO has found and therefore knows that
IBM has not produced), means that IBM has not produced many such documents and materials.
IBM first argues that this Court has somehow already resolved SCO's New Renewed
Motion by limiting the scope of the Court's Orders, and then argues that certain irrelevant
"events" in 2005 have mooted SCO's Renewed Motion. SCO respectfully submits that IBM is
mistaken in both respects.
I. THIS COURT HAS NOT RESOLVED SCO'S MOTION
IBM first appears to contend that this Court's resolution of a separate motion argued on
October 7, 2005, somehow invalidates SCO's Renewed Motion. In fact, the Court declined to
consider SCO's Renewed Motion at that time, stating at the outset of the October 7 hearing that
it would defer argument until December. In its Order dated October 12, 2005, the Court
explained:
Given the possibility that some discovery provided by IBM may address concerns
raised by SCO in the pending motions, SCO shall withdraw the pending motion
and file a new motion removing any items from the motion which may have been
provided by IBM in the intervening time.
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October 12 Order at 2 (emphasis added). SCO complied with those instructions by reviewing the
materials that IBM produced this year and, because IBM failed to provide the relevant discovery,
SCO filed this motion.
IBM now misinterprets the October 12 Order. In its March 2004 Order, the Court said in
the first sentence of paragraph 3 at pages 4-5: "IBM is to provide documents and materials
generated by, and in possession of employees that have been and are currently involved in
the Linux project." On October 7, 2005, IBM argued that the foregoing language did not apply
to programmers. Now IBM maintains that the foregoing language also does not apply to IBM's
senior executives. That is, IBM now appears to contend that the first sentence is a nullity
altogether: IBM interprets its obligations as requiring "only the production of documents
concerning IBM's decision to adopt or embrace Linux as reported in the March 20, 2000 article
in the New York Times." IBM Mem. at 3.
IBM thus appears to view its discovery obligations as limited to the final decision to
embrace Linux, and then only as reported in the New York Times article. Based on this
erroneous belief, IBM has apparently withheld many other documents pertaining to IBM's Linux
strategy. IBM's argument fails for several reasons.
First, in contrast to Linux developers, the Court clearly did have in mind IBM's senior
executives when it wrote paragraph 3 at pages 4-5 of the March 2004 Order. SCO's counsel had
expressly addressed the issue in the February 2004 hearing, and the Court expressly noted that
argument in the March 2004 Order. Indeed, IBM itself has now said, in October of this year, that
it actually reads the first sentence of paragraph 3 at pages 4-5 of the March 2004 Order to mean
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that IBM was not to exclude IBM's senior executives from IBM's searches for documents
responsive to SCO's document requests. 10/7/05 Hr'g Tr. at 41, 43-44.
Second, as noted, IBM has acknowledged that it was not to exclude senior executives
from its search for documents responsive to SCO's document requests. IBM acknowledged on
October 7 that in its March 2004 Order the Court addressed two distinct issues; one, documents
from IBM's senior executives; and two, materials relating to the New York Times article.
10/7/05 Hr'g Tr. at 38. The fact is that SCO has served IBM with at least two, clear document
requests that should have prompted IBM to produce those documents from its senior executives
concerning IBM's Linux strategy:
"All documents concerning any contributions to Linux or open source
made by IBM and/or Sequent." Request No. 35.
"All documents concerning IBM's decision to adopt, embrace or
otherwise promote Linux," including documents from the files of Messrs.
Palmisano, Wladawsky-Berger, Horne and Bowen, and from IBM's Board of
Directors. Request No. 53.
SCO cited Document Request No. 53 in its Memorandum in Support of its Renewed
Motion to Compel (at iii). The fact that IBM apparently has not produced all such documents
directly undercuts its interpretation of the March 2004 Order.
Third, even accepting IBM's bald argument that the Court's reference to the New York
Times article is the only language of consequence in paragraph 3 at pages 4-5 of the March 2004
Order, IBM still reads its discovery obligations too narrowly. The order was to produce
documents "concerning IBM's decision to adopt or embrace Linux" as reported in the article.
Among other things, the article says the following about IBM's "Linux strategy":
I.B.M., it was decreed, would embark on a costly program to make all its
hardware and software work seamlessly with Linux. So quickly did the company
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mobilize that even now, hundreds of engineers across the company are already
engaged in the Linux campaign, and I.B.M. says its army of Linux engineers will
number in the thousands within a few years.
. . .
Even IBM, which plans eventually to use Linux as its unifying Unix
platform (shelving AIX), says Linux's true ascendance may not come for five
years or so -- until Linux is built up to become more powerful and reliable.
Lohr, supra (emphasis added). The article thus expressly concerns IBM's then-prospective
efforts to undertake a "costly program" to "build up" Linux. IBM should have produced
documents from its senior executives concerning those efforts.
Indeed, IBM has no coherent explanation for why SCO was only entitled to have, and the
Court only ordered IBM to produce, documents created during the time in which IBM made its
ultimate decision to embrace Linux. If there were such a temporal limitation on the order of
production, it would not have made sense for the Court to point out (as it did) that "these
materials are relevant because they may contain information regarding the use or alleged misuse
of source code by IBM in its contributions to Linux." IBM could have generated such materials
well prior to, and well after, IBM's ultimate decision to embrace Linux.
IBM's continuing effort to narrow the scope of what it is obligated to produce bears out
SCO's proposal — which SCO expressly identified as a request for relief, not an assertion of what
this Court had previously ordered — that the Court order IBM to produce any document from the
files of its senior executives and Board of Directors that contained the word "Linux".
II. IBM'S OTHER ARGUMENTS ARE IRRELEVANT
None of the "events" since December 2004 that IBM cites have rendered SCO's motion
moot. None of these events has cured the deficiency in IBM's production.
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First, IBM inexplicably suggests that SCO's motion is moot because IBM has produced a
million pages of documents since December 2004 in response to SCO's "other document
requests." IBM Mem. at 4. The volume of IBM's production is a red herring. IBM's recent
production concerned other SCO requests and Court orders.(1) Those materials cannot and do not
cure the deficiency of documents related to IBM's Linux strategy from the files of IBM's high
level executives. Not surprisingly, such high-level documents from IBM's executive
management do not appear in IBM's production from other sources, which is why SCO was
forced to file this separate motion specifically targeting those essential documents.
Second, IBM contends that "SCO's concerns about the production of documents from
these sources should be addressed through depositions, not another motion to compel." IBM
Mem. at 5. There is no basis for this position. IBM complains that during the deposition of Mr.
Wladawsky-Berger, SCO had the opportunity to establish whether IBM withheld documents
from his files but could not do so. IBM argues that SCO can similarly test IBM's representations
that it has produced all responsive documents of other executives by deposing IBM CEO Samuel
Palmisano and IBM's proposed 30(b)(6) witness.
IBM is wrong for two plain reasons. One, IBM has no right to dictate which discovery
tools SCO may use. SCO has a limited number of depositions through which it must develop
proof of its claims for trial. Nothing in the Federal Rules requires that SCO detract from its
allotment in order to establish IBM's non-compliance with its discovery obligations. Instead,
motion practice serves that purpose. SCO properly requested the documents it seeks; the Court
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ordered IBM to produce those documents; and IBM's continued failure to comply has forced
SCO to file a proper renewed motion to compel IBM to produce them. IBM cannot now sidestep
SCO's motion by arguing that SCO must use its depositions to address IBM's failure to produce
those documents.
Two, even if SCO sought to verify via deposition the obvious deficiency in IBM's
production, the deposition of Mr. Wladawsky-Berger reveals the difficulty. As explained in
SCO's Reply to the Renewed Motion, Mr. Wladawsky-Berger admitted in deposition that he had
sent and received many e-mails that expressly concerned IBM's decision to adopt and promote
Linux. SCO Reply Mem. at 2-3. IBM has never produced any of those emails. Mr.
Wladawsky-Berger's testimony establishes that IBM adopted a constricted view of its discovery
obligations that IBM has now openly acknowledged in its opposition brief. See IBM Mem. at 3.(2)
Presumably, Mr. Palmisano will testify that he too produced all materials responsive to IBM's
narrow interpretation of its discovery obligations. Thus, no deposition will resolve or cure
IBM's unilateral decision to disregard the Court's Orders by withholding responsive e-mails,
reports, and internal memoranda from the files of its most important executives.
III. SCO PROPERLY SEEKS A RULE 30(b)(6) DEPOSITION OF IBM
IBM still refuses to produce a witness to testify about its discussions "concerning UNIX
licensing rights, limitations, and potential liabilities, in connection with IBM's acquisition of
Sequent." IBM objects on the grounds that "any such discussions would have involved IBM's
attorneys and are therefore privileged." IBM Mem. at 5-6. As detailed in SCO's Reply to the
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original motion, IBM's sweeping assertion of privilege is unreasonable on its face and
insufficient under the case law. SCO Reply Mem. at 8.
Even if IBM's attorneys were present, for example, IBM's discussions with Sequent are
not privileged, because Sequent is a third party whose presence in those discussions defeats any
privilege claim. See In re Grand Jury Subpoena, 144 F.3d 653,659 (10th Cir. 1998). Nor would
IBM disclose any "privileged" information in describing executive management's consideration
of UNIX-related issues in the context of its Sequent acquisition.
Although SCO raised the foregoing points in its Reply to the original Motion, IBM failed
to address them in its opposition brief and only reiterates its generalized privilege claim. Absent
a showing by IBM that the deposition would cause "annoyance, embarrassment, oppression, or
undue burden," Fed. R. Civ. P. 26(c) — which it would not — SCO is entitled to take the
deposition on the noticed topic.
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CONCLUSION
SCO respectfully requests that this Court order IBM (1) to produce documents from its
high-level executives relating to its adoption and promotion of Linux and (2) to produce a
witness concerning SCO's Rule 30(b)(6) topic.
DATED this 23rd day of November, 2005.
Respectfully submitted,
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James
BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Stuart H. Singer
Stephen N. Zack
Edward Normand
By (signature of Mark F. James)
Counsel for The SCO Group, Inc.
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CERTIFICATE OF SERVICE
Plaintiff, The SCO Group, Inc., hereby certifies that a true and correct copy of the
foregoing Reply Memorandum in Further Support of SCO's New Renewed Motion to Compel
Discovery was served on Defendant International Business Machines Corporation on the 23rd
day of November, 2005:
By U.S. Mail and Facsimile:
David Marriott, Esq.
Cravath, Swaine & Moore LLP
[address]
Donald J. Rosenberg, Esq.
[address]
Todd Shaughnessy, Esq.
Snell & Wilmer L.L.P.
[address]
(signature of Mark F. James)
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-
In particular, IBM's recent production centers on materials that the Court's Orders dated January 18 and
April 19, 2005, required IBM to produce relating to the complete AIX and Dynix development histories,
which had been withheld from SCO for well over a year.
(Back to the main text)
-
As shown above, IBM misinterprets the Court's Order to require "only the production of documents
concerning IBM's decision to adopt or embrace Linux as reported in the March 20, 2000 article in the
New York Times." IBM Mem. at 3.
(Back to the main text)
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Authored by: Arthur Marsh on Thursday, December 01 2005 @ 02:49 AM EST |
Corrections under this thread please.
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http://www.unix-systems.org/what_is_unix.html[ Reply to This | # ]
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Authored by: Arthur Marsh on Thursday, December 01 2005 @ 02:54 AM EST |
Please post off topic threads below this thread, and use the "HTML
formatted" post mode to make URL's selectable (since one doesn't click on a
link in lynx (-:).
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http://www.unix-systems.org/what_is_unix.html[ Reply to This | # ]
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Authored by: eibhear on Thursday, December 01 2005 @ 03:51 AM EST |
Torture is out.
rotflol
Darl should
sent a "The Ban on Torture is Unconstitutional" letter to all Members of
Congress. He might actually gain some traction there.
Éibhear [ Reply to This | # ]
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Authored by: Anonymous on Thursday, December 01 2005 @ 04:15 AM EST |
"I've never yet been even peripherally involved in any news story that was
reported 100% accurately."
(I know what you mean, really.)[ Reply to This | # ]
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Authored by: Anonymous on Thursday, December 01 2005 @ 06:29 AM EST |
The fact may be that they did exist, and may still, but not in IBM's posession.
You see most companies don't hold on to all documents forever. Things are only
retained when they are useful. A throw-away presentation from years ago stands
a good chance of not being present anymore. Plus there are document retention
policies which are pretty stringent about memos and other non-permanent records.
Of course I'm sure IBM has been keeping all relavant records since the lawsuit
was filed but that doesn't mean they have every document from the beginning of
time.
Why doesn't SCO ask for copies from the places which reported seeing them?
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, December 01 2005 @ 07:34 AM EST |
I think you missed the point in the grandparent post. The difference would be
that PJ personally cares about the subject. So she makes sure to check the
details.
As an aside: Is PJ a journalist?
In this thread where we are comparing "journalists" to
"bloggers", it is perhaps a bit debatable. If all bloggers are
classified as journalists the comparison becomes meaningless. So do we
distinguish on media type or writing skills?
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- PJ cares - Authored by: Anonymous on Thursday, December 01 2005 @ 07:38 AM EST
- PJ cares - Authored by: Anonymous on Thursday, December 01 2005 @ 09:31 AM EST
- PJ cares - Authored by: akoma on Thursday, December 01 2005 @ 10:12 AM EST
- Yes, you can be wrong - Authored by: Anonymous on Thursday, December 01 2005 @ 10:41 AM EST
- PJ cares - Authored by: Anonymous on Thursday, December 01 2005 @ 12:00 PM EST
- Actually, journalist may no longer be right - Authored by: Anonymous on Friday, December 02 2005 @ 03:23 AM EST
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Authored by: om1er on Thursday, December 01 2005 @ 07:49 AM EST |
I see SCO repeatedly emphasizing that IBM has withheld discovery information,
both here and in quite a few of their other motions and arguments before the
court.
With the deadline of December 22, 2005 approaching, at which both IBM and SCO
need to put their cards on the table, it might be that SCO will soon ask for an
expedited appeal of this matter. My guess is that they will probably appeal
judge Kimball, thus forcing a delay in the case. This document appears to be
the setup for that.
Is there any way IBM can effectively block SCO from appealing this matter and
delaying the case? Or, as surely as the sun comes up in the morning, will SCO
find a way to delay this case before December 22?
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Authored by: Anonymous on Thursday, December 01 2005 @ 07:51 AM EST |
"And they are just sure, sure, sure that there have to be more emails and
documents that IBM hasn't turned over. They believe it because they read a New
York Times article from 2000 about an IBM 10-page report on the IBM Linux
strategy, and IBM hasn't turned over any such document. They also think they
know about an email from Sam Palmisano, and IBM never turned that over
either."
it speaks volumes that they have to resort to a New York times article to try to
get what they want.
IANAL but if they have such concrete proof that code has been copied why would
they resort to a 10 page report and a new york times article.
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Authored by: Anonymous on Thursday, December 01 2005 @ 08:03 AM EST |
SCO go on and on about "missing" documents relating to IBM's Linux
strategy? What does that have to do with the price of eggs? Surely the issue is
whether IBM appropriated any Unix IP and put it into Linux. What do their
(marketing) strategies have to do with this core issue? IBM should just get SCO
back on point and stop wasting the Court's time.[ Reply to This | # ]
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Authored by: TheBlueSkyRanger on Thursday, December 01 2005 @ 08:04 AM EST |
Hey, everybody!
Apparently, SCO is hoping the judge isn't familiar with the reputation of the
New York Times. ;-)
Dobre utka,
The Blue Sky Ranger[ Reply to This | # ]
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- and just what is - Authored by: Anonymous on Thursday, December 01 2005 @ 05:36 PM EST
- Judy Miller - Authored by: Anonymous on Friday, December 02 2005 @ 09:36 AM EST
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Authored by: akempo on Thursday, December 01 2005 @ 08:44 AM EST |
This is absolutely hysterical! I haven't read anything this funny in a while.
Networks needn't look any farther than Lindon, Utah for a new reality sitcom.
About the only thing funnier than this will be reading this spin: "IBM
clearly misunderstands the judge's order when he stated that he rules for the
defendant by thinking that they won they case. We are working on getting the
wording changed to read that he doesn't find in favor of the plaintiff, because
we still have a chance to win the suit and protect our valuable intellectual
property."
IANAL
akempo
---
Great minds talk about ideas, average minds talk about events, small minds talk
about each other. Eleanor Roosevelt
2b | !2b = question[ Reply to This | # ]
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Authored by: Fogey on Thursday, December 01 2005 @ 09:41 AM EST |
Is it just me, or is this filing especially poorly written? The heavy use of
personal pronouns, clumsy sentence structures, and references to "this
court," as if the judge might be unsure of which court's actions might be
in question, combine to make this look like something from one of the psycho
pro-se litigators. I took a look back through some of the earlier filings, and I
don't see this sort of "middle school" level writing in them.
Oh well, maybe I'm just a little extra picky this morning.
---
Old age and treachery ALWAYS
beats Youth and enthusiasm![ Reply to This | # ]
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Authored by: jdg on Thursday, December 01 2005 @ 09:48 AM EST |
There have been comments and concerns about tSCOg appealing a decision because
they were not granted some of the discovery they have demanded.
However, I have a queston about this notion. Specifically, tSCOg have a
"peculiar" theory about contract law and the interpretation of its
contract and similarly have "peculiar" theory of copyright law and its
application in this case. It seems to me that much of tSCOg's discovery demands
are predicated on these theories.
Assume, as seems likely, that it is ruled that these theories are incorrect.
Then it seems to me that discovery requests that are predicated on these
theories are moot and so are any appeals of those adverse discovery orders.
That is, by moving the case along and getting a ruling on the novel theories
tSCOg is relying on makes that whole portion of the case and appeals of
decisions (other than of the decision that tSCOg's theory is wrong) finished.
My question for the attorney-types is:
Am I correct in the conclusion that a ruling on tSCOg's novel positions obviates
appeal of the issues predicated on those novel positions even if an appeal would
be successful of the novel positions either were upheld or not yet ruled on?
(Another ruling that could kill these appeals would be one on the ownership of
copyrights in tSCOg vs Novell.)
[IANAL etc]
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SCO is trying to appropriate the "commons"; don't let them [IANAL][ Reply to This | # ]
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Authored by: Anonymous on Thursday, December 01 2005 @ 10:41 AM EST |
Here is a cut-N-paste of a post from another thread - hopefully somebody can
attend and give us a report.
----------------------
Darl Speaking on Thursday
Authored by: Silicon Whisper on Tuesday, November 29 2005 @ 06:44 PM EST
For those in Utah with some available time on Thursday afternoon:
---
Darl McBride, CEO of SCO (formerly Caldera) will present this Thursday as part
of UVSC's Executive Lecture Series.
<a
href="http://www.uvsc.edu/schools/business/executiveLecture/">UVSC
Executive Lectures</a>
The presentation will go from 12:00 to 12:50 PM and will be held in the Regan
theater.
Presentations are free and open to the public, and there is usually a question
and answer period.
The Regan Theater is upstairs in the Student Center. Visitor paid parking is
available in lot L across from the institute building. Free visitor parking is
available in lot U, but it's somewhat of a walk.
<a
href="http://www.uvsc.edu/parking/images/buildings.jpg">Building<
;
;/a>
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Authored by: unixgeezer on Thursday, December 01 2005 @ 10:42 AM EST |
Re: "they are just sure, sure"
I think you could boil down the exchange between SCO and the court to this:
SCO: Where there's smoke, there's fire, Your Honor.
Judge: There's no smoke here, counsel (coming from
defendant, at least).
SCO: That simply means that the fire is well hidden.
===
If ignorance and credulity were combustible, OPEC would wither and die.
---
Unix Geezer[ Reply to This | # ]
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Authored by: billyskank on Thursday, December 01 2005 @ 10:45 AM EST |
I am quite bored of hearing about ever newer renewed, re-renewed and
re-re-renewed motions to compel IBM to produce any and all documents relating to
Linux and any and all contributions to Linux both public and non-public. We've
heard it all before, too many times. I feel sorry for the Magistrate.
---
It's not the software that's free; it's you.[ Reply to This | # ]
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Authored by: rsmith on Thursday, December 01 2005 @ 12:24 PM EST |
Discovery isn't done until the case is won.
or,
Give us enough rope to hang you with.
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Intellectual Property is an oxymoron.[ Reply to This | # ]
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Authored by: webster on Thursday, December 01 2005 @ 12:52 PM EST |
1. Deja vu, new, renewed, and old. SCO has to do something so they do their
best. This is it. Discovery and more Discovery, maybe they'll get lucky. No
harm in fishing. If they had some ironclad evidence, they would be pushing and
preparing with depositions for a prompt trial.
2. I'll tell you a little secret. IBM has given all this stuff, including the
ten page NYT Memo, to SCO but they don't know where to look. They want IBM to
push the mouse for them. IBM just say they have complied. Everyone believes
them except SCO. Or SCO knows it too, but they have nothing else to do and are
too embarassed to ask IBM where it is.
3. Companies deliberately don't create documents because it is inefficient and
they might become discovery targets or indeed be used against them.
Companies deliberately destroy documents because it is efficient and they
might become discovery targets or indeed be used against them.
Any such documents from senior executives are well above code level and of
doubtful relevance. Sam was not discussing SCO header files.
4. Did they raise new issues? I'm too lazy to check. If so, will IBM thus
feel the need to oppose the reply in writing? Is this worth a hearing?
---
webster
>>>>>>> LN 3.0 >>>>>>>>>[ Reply to This | # ]
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Authored by: Anonymous on Thursday, December 01 2005 @ 01:03 PM EST |
SCO: "We have not gotten it."
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Authored by: Anonymous on Thursday, December 01 2005 @ 01:49 PM EST |
"My favorite is that SCO, having been publicly scolded by the judge at the
last hearing for misinterpreting her prior orders, now accuses IBM of
misinterpreting her October 12th order."
Ah, but they "respectfully request" and "respectivly
submit". They do everything very respectfully.
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Authored by: Anonymous on Thursday, December 01 2005 @ 02:03 PM EST |
Sounds like "new and improved" to me... which usually means that it
isn't...
My translation: Bring in another truck of lipstick for this pig!
...D[ Reply to This | # ]
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Authored by: Anonymous on Thursday, December 01 2005 @ 03:15 PM EST |
Following the recent overruling of Judge Kimball's discovery decisions in
another case which I can't find just at this moment.Are they making a play to
influence his thinking at a time when he may feel somewhat less certain of his
position following the criticism contained in the appeal court ruling? Brian
S. [ Reply to This | # ]
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Authored by: Anonymous on Thursday, December 01 2005 @ 03:42 PM EST |
My experience been that most high-level executives do not use email. I
suspect IBM really doesn't any of his emails regarding Linux. There are
probably no (or very, very few) emails of any kind.
Hasn't it been revealed
that David Boies doesn't use email? So it's not exactly strange for busy people
to eschew the time sink that email often turns out to be.
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Authored by: Anonymous on Thursday, December 01 2005 @ 05:19 PM EST |
pardon my boundless ignorance, but what if SCO "knows" that IBM has
withheld email(s) because they, somehow, already have copies of email(s) that
weren't in the piles turned over by IBM? for instance, maybe someone that knows
someone knows someone and got a forwarded copy of some Silver Bullet email from
Palermo. and maybe that found it's way to SCO. so maybe they know the email
should've been turned over but wasn't.
could SCO use such an email (or any other internal IBM docs) if it didn't come
from IBM as part of this case? [ Reply to This | # ]
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Authored by: Anonymous on Thursday, December 01 2005 @ 07:11 PM EST |
As for any email SCO thinks should exist, IBM suggests that they
just ask Mr. Palmisano at his deposition all about it. SCO says that won't work.
Why not? Because he will just say he turned over everything, SCO says. And of
course, SCO will not believe his testimony. In fact, they disbelieve it before
he even gives it. Now, that's suspicion. Are they suggesting he will lie? Or are
they telepathic or have the power to predict future answers to not-yet asked
deposition questions? Yes, it's offensive and rude. I don't think the judge will
like it, either.
I believe this excerpt provides an
interesting insight into the minds of the SCOX executives. They seem to believe
that just because they lie, the rest of the world lies too.
I'm
referring in particular to Ralph Yarro. Almost one year ago, he was accused by
the Canopy owners of fraud and embezzlement through a series of dishonest,
backroom deals. Yarro seemingly justified his behaviour by believing that
everyone lies and cheats. Indeed, he made sure as many people as possible
participated in the Canopy fraud in an effort to deflect blame.
People
like Yarro can't be taught morals. After all, if no one else has them, he
reasons, why should he?
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Authored by: Anonymous on Thursday, December 01 2005 @ 09:30 PM EST |
She has to fine them, heavily. VERY heavily. Think Judge Ito, times 100.
If she gets upset, they'll appeal. If she ignores them she'll never hear the
end of the morons. So she has to quietly make it so uncomfortable for them,
they stop their antics and get on with the alleged case.
$1 million per day could do it, and SCOG probably hopes she'll do it so they
won't have to give cash to Microsoft competitors Novell or IBM. She could do
herself, us, and SCOG a favor.[ Reply to This | # ]
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Authored by: swmcd on Friday, December 02 2005 @ 12:27 AM EST |
Friends of my sister.
Husband and wife.
Both lawyers.
The wife was saying that she was thinking of not working any more. She said the
unpredictabiliy of the job was difficult to deal with. I asked what made the job
unpredictable. The husband looked at me:
"opposing counsel"
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Authored by: MalFal on Friday, December 02 2005 @ 01:45 AM EST |
to be using items found in newspapers, especially 3rd party reporting, as cause
to compel motions in this case. If they REALLY believe that, then IBM should
start to trot out all the pathetic direct quotes from SCO top brass strewn over
the press the last few years to advance their case even further. Something
about people who live in glass houses... :)[ Reply to This | # ]
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Authored by: GLJason on Friday, December 02 2005 @ 07:17 PM EST |
Oh, say. Talk about turn on a dime. IBM bought Sequent, and so
all the arguments SCO has made [PDF] to hide behind privilege regarding
documents by AT&T, Novell, Santa Cruz, etc. which IBM asked for from SCO's
privilege log would seem to apply quite nicely here on IBM's behalf. Or am I
missing something?
I think you are missing something. If I
have a conversation with you about something, it doesn't automatically become
privileged if I have a lawyer present. I think that is well settled, otherwise
rich people and companies could have ALL information privileged just by having
lawyers attend every meeting they have. If I'm having a discussion with you and
my lawyer pulls me to the side and we have a private discussion, that is
privileged. Any discussions between two separate parties (like Sequent and IBM
in their pre-merger discussions) would not be privileged, would it?[ Reply to This | # ]
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