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| IBM's Memo in Opposition to SCO's Motion to Compel |
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Friday, January 20 2006 @ 12:58 PM EST
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Some action in the SCO v. IBM litigation, as IBM files a withering reply to SCO's motion to compel. Which motion to compel, you ask? There have been so many. Why, the latest in the long string of motions to compel that seem to be designed simply to harrass IBM by asking for everything that SCO can possibly think of, so IBM is sent scurrying about, spending time and money on irrelevant make-work.
Even the court must be getting confused, because IBM titles its memorandum to indicate which motion we are currently talking about: IBM's Memorandum in Opposition to SCO's December 29, 2005 Motion to Compel Discovery [PDF]. We also have a supporting Declaration by Todd Shaughnessy [PDF]. This SCO motion to compel is the one with the memorandum in support that SCO filed under seal. We now learn some of what SCO is trying to compel.
SCO is seeking discovery related to its "damages" claims. They want documents to prove how much the court should award them if they win, ha ha. So what does SCO ask for? How much money IBM has made from Linux, for one thing. Now, as it happens, IBM doesn't sell Linux, so therein lies an issue. Shaughnessy tells the court, however, that IBM has already turned over a massive amount of documents regarding IBM's Linux-related revenue. IBM tells the court, We've gone beyond what we are required to do already, and SCO's motion should be denied as moot, irrelevant or overbroad. They don't add the word mean, but that is what they are saying in effect. SCO didn't even meet with IBM to work out their requests before filing this motion, IBM reveals. That is a big NO. The court is unlikely to look favorably on any request from SCO if they've failed to do that. Lots of you have asked, when does the court finally see what SCO is up to? I think they do already, and that is why SCO lost the last motion to compel, but it's really up to IBM to complain at each juncture, and here they do. SCO continues to pretend that IBM is being bad in discovery. Why? I have a theory of my own. I think it may be that SCO hoped to get some of IBM's evidence thrown out by means of sanctions. You've seen SCO ask for sanctions already in prior motions to compel. It's a doomed strategy, however, because IBM hasn't been bad in discovery, as the Magistrate Judge clearly told SCO in her last order. But I think that could be why there have been so many inexplicable motions to compel. One item SCO wants is
"All documents concerning customers or users who migrated" to Linux from any other operating system. Here's IBM's answer:
In other words, if a company ever migrated any part of its computer systems to Linux, SCO's requests appear to seek all documents concerning such company, whether or not the documents are even remotely connected to any subject matter in this lawsuit. Rather than meeting and conferring with IBM in an attempt to narrow the scope of its requests and provide IBM with additional particularity as to what documents it really seeks, SCO filed its motion. SCO's motion should be denied. What is it indicating to the court when it says "documents it really seeks"? That SCO is playing games in discovery, that they have something particularly in mind, but instead of asking for it, they are casting a wide net for information that isn't useful in this litigation but must be for other, unrelated purposes. And another implication is that they wish to keep IBM in the dark as to what they are seeking. Are they hoping to sue other companies, like AutoZone, someday, using this material, if they get it, or is this simply more busiwork for IBM or are they just seeking discovery in this broad way to avoid cluing IBM in to what they really plan to say at trial? No, you are not allowed to ask for unrelated documents. Then in
footnote 2, IBM lays it on the line:
SCO repeatedly contends that IBM has conceded the relevance of certain types of documents or testimony because IBM has produced documents or otherwise permitted discovery on those topics. SCO's contention flies in the face of the principle of discovery cooperation, including as urged by the COurt in its January 18, 2005 Order (p. 11). IBM has gone above and beyond what it is required to do in providing SCO with documents and information requested by SCO, even documents and information which are irrelevant. For example, SCO has propounded document requests on a wide variety of topics, and notwithstanding its objections as to relevance, IBM, in the interests of discovery cooperation, has in many cases provided SCO with documents responsive to those requests. Similarly, at depositions, IBM has not generally sought to restrict SCO from asking detailed questions on far-ranging subjects, even irrelevant subjects. SCO's attempts to take advantage of IBM's cooperation by describing such cooperation as an acquiescence on relevance is misguided. IBM has behaved more than appropriately, they are saying. The Court asked the parties to be cooperative in discovery, and IBM obeyed and complied. More than complied. For SCO now to try to get a leg up by saying that IBM has conceded certain relevance (meaning now that it is conceded, IBM has to turn over more of that type now) would be to punish IBM for obeying the Court's directive. It is inconceivable that any court would go along with that. There may be some items that the Court will decide are relevant. The same thing could have happened if SCO had approached IBM and negotiated, which is the normal procedure. But SCO is making a bad name for itself in this litigation, no way around it, and it is bound to cost them.
Here are the most recent entries from PACER:
01/11/2006 599 **RESTRICTED DOCUMENT** RETURN OF SERVICE/Acceptance of
Service Executed for Subpoena served on PricewaterhouseCoopers LLC, Ivan
P. Stolze on 1/4/06, filed by Defendant International Business Machines
Corporation. (blk, ) (Entered: 01/12/2006)
01/17/2006 600 MEMORANDUM in Opposition re 592 MOTION to Compel
Discovery filed by Defendant International Business Machines
Corporation. (blk, ) (Entered: 01/19/2006)
01/17/2006 601 DECLARATION of Todd M. Shaughnessy filed by International
Business Machines Corporation. (blk, ) (Entered: 01/19/2006)
01/19/2006 602 Minute Entry for proceedings held before Judge Brooke C.
Wells : Telephone Conference held on 1/19/2006 re: Interpretation of
order 184 as to production of affidavits or delcarations to be used at
deposition. Parties to prepare order. Attorney for Plaintiff: Ted
Normand, Attorney for Defendant David Marriott. (alp, ) (Entered:
01/19/2006)
Another conference on how to interpret an order. SCO just can't seem to accept that they are losing now and that the last Order was a sign, but from all I can see, I believe they are losing. Certainly, if my theory that SCO had a strategy to seek sanctions against IBM is correct, that strategy has failed. Hopefully that means we won't have to read any more SCO motions to compel.
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| Authored by: Kosh Nanarek on Friday, January 20 2006 @ 01:03 PM EST |
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"And so, it begins."[ Reply to This | # ]
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| Authored by: Kosh Nanarek on Friday, January 20 2006 @ 01:04 PM EST |
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"And so, it begins."[ Reply to This | # ]
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| Authored by: capt.Hij on Friday, January 20 2006 @ 01:22 PM EST |
So... what happens if a higher court decides that the judges decision on just
one of the motions was not right. What sort of dominos would then fall? How
could a higher court untangle this mess if there is an appeal based on a small
subset of the rulings?
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, January 20 2006 @ 01:23 PM EST |
In the near future, SCO will file a Motion to Compel IBM to stop refuting their
Motion's to Compel.[ Reply to This | # ]
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| Authored by: Anonymous on Friday, January 20 2006 @ 01:35 PM EST |
"Hopefully that means we won't have to read any more SCO motions to
compel."
Sorry, PJ, your hope is in vain. SCO will continue to file motions to compel
until the judges tell them to stop (not hint, not suggest, but order). Even
then, SCO will file at least one more to find out if the judges are serious.
This farce will go on until some SCO attorneys get sanctioned, until SCO has
lost the case and exhausted all avenues of appeal, or until SCO is bankrupt.
Until one of those occurs, I'm afraid the motions to compel discovery will
continue.
I'd even bet that the end of discovery doesn't end the motions to compel.
MSS2[ Reply to This | # ]
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| Authored by: ThrPilgrim on Friday, January 20 2006 @ 01:40 PM EST |
I think I've worked out SCO's logic behined the multiple filings.
1) File a motion for Discovery.
2) Wait for it to be granted in part.
3) Before the end of the time limit on the defendent to compleate discovery,
file a motion to compell on the bits you did not get.
4) Wait for defendents motion to deny.
5) Repeat parts 3 and 4 ad nausiam
6) Infinate delay = SUCCESS[ Reply to This | # ]
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| Authored by: kawabago on Friday, January 20 2006 @ 01:46 PM EST |
Throughout UNIX white space is used to separate words, variables and programming
lines. This white space consists of spaces, new lines, form feed and tab
characters. Linux also uses exactly the same white space, if you go through the
Linux kernel source you find white space everywhere. Every bit of this white
space is identical to that contained in UNIX. It is inconceivable that this is
cooincidence. It is impossible to believe that Linux coders could have used
white space in exactly the same manner as SCO without having copied SCO's white
space and methods and concepts contained therein.
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TTFN[ Reply to This | # ]
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| Authored by: Steve Martin on Friday, January 20 2006 @ 03:02 PM EST |
I've already done about half the memorandum, and hopefully will get to finish it
tomorrow sometime, but I haven't started yet on the Declaration; anybody wanna
claim it?
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"When I say something, I put my name next to it." -- Isaac Jaffee, "Sports
Night"[ Reply to This | # ]
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| Authored by: Anonymous on Friday, January 20 2006 @ 03:34 PM EST |
Hate to burst anybody's bubble, but I can't find the requirement in Sarbanes
Oxley itself ( http://news.findlaw.com/hdocs/docs/gwbush/sarbanesoxley072302.pdf
). I searched for "property," "intellectual,"
"copyrights," "trademarks," and "patents."[ Reply to This | # ]
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| Authored by: rht on Friday, January 20 2006 @ 05:15 PM EST |
Why doesn't IBM start asking for Costs of the Day? or have they been
doing so?
As I understand it: in the Westminster system costs of court
appearances in ancilliary matters are usually covered by the order (often
implied) that "Costs of the day be costs in the cause" meaning that whoever gets
the award for costs at the conclusion of the trial also gets court costs related
to ancilliary matters.
However, that is not immutable. In the Westminster
system if the Court is satisfied (on its own motion, or on the motion of one of
the parties) that a day in court has been unnecessary (for example, if one party
has been only wasting time or if the whole day has been spent on a motion that
is frivolous or without merit) then the Court can award that day's costs to the
aggrieved party or, simply, against the transgressor. Such awards of costs,
effectively, stand as independant verdicts -- regardless of the final outcome of
the trial (unless subsumed within the final award).
To my mind, if IBM
sought these Costs of the Day then, whether or not it were successful
in obtaing favourable decisions, the clearest possible message would be sent to
SCO and the World at large that IBM now has its big guns firmly trained on SCO.
Of course, if IBM got up on any such motion that would send a message
of even greater import. [ Reply to This | # ]
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- Costs of the Day - Authored by: Anonymous on Friday, January 20 2006 @ 05:40 PM EST
- Costs of the Day - Authored by: Anonymous on Saturday, January 21 2006 @ 03:49 AM EST
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| Authored by: Anonymous on Friday, January 20 2006 @ 05:53 PM EST |
This reply is of itself interesting. Very interesting.
Consider the value of this sort of information to a competitor - no names
please. Who has switched from OS XXX to Linux? Who is considering a switch?
Where and from whom does IBM derive its revenue?
The list goes on.
To a competing multinational who provides an OS and other related services this
data would be better than gold dust. Sure every one has a fairly decent idea
about the broad picture. But to a well honed marketing team with a lot of cash
to spend this would simply be a blue print for the next year or so.
SCO are not capable of using this information and now never will be able to.
There are others who might.
--
MadScientist[ Reply to This | # ]
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| Authored by: dkpatrick on Friday, January 20 2006 @ 09:08 PM EST |
It seems to me that the cart is before the horse. Trying to determine how much
money you should get in damages before it's been adjudicated seems out of place.
It makes sense if you consider the SCO is running out of discovery requests.
This starts a whole new round of discovery requests.
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"Keep your friends close but your enemies closer!" -- Sun Tzu[ Reply to This | # ]
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| Authored by: Anonymous on Friday, January 20 2006 @ 11:11 PM EST |
PJ comments,
But SCO is making a bad name for itself in this litigation, no way around it,
and it is bound to cost them.
I suggest that SCO doesn't care. They do not plan on surviving these lawsuits.
They have put all their money into lawsuits, including suing their customers for
non-sensical reasons. Most other customers will not ignor this fact. And they
will not continue their relationship with SCO. Moreover, SCO knows that they do
not own any Unix IP, so the have nothing of value when customers stop buying
because they do not want to be sued tomorrow, or in two to three years. SCO
knew this going in. Boise knew this coming on. SCO is being hollowed out by
funding their lawsuits. Penalties will greatly exceed any residue left. SCO's
business is all but gone, the company will follow shortly.
In my mind, the *only* question of interest left is "why did SCO knowingly
choose to self-destruct?" I am not convinced that they (SCO) believed IBM
would throw millions (billions?) at them because they (IBM) felt Linux would
crumble otherwise and that they (IBM) believed that their business was at
serious risk if they did not "save" Linux.
So, SCO knew going in that their company would be destroyed before all the
lawsuits finished. Yet they attacked anyway. Why? What would motivate
intelligent (ok, this is a bit exaggerated) people, with a clear fiduciary
responsibility, to ruin a moderately successful business pursuing a patently
obvious fantasy?
just askin'[ Reply to This | # ]
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| Authored by: Anonymous on Friday, January 20 2006 @ 11:49 PM EST |
The court system isn't working out for SCO so they'll be sending out more
threatening letters to Linux users in the meantime. Mailing list courtesy of
IBM. Would think that using discovery info for one's own gain or other
alternative purpose would be illegal -- evidently not.[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, January 22 2006 @ 04:08 AM EST |
...for the next mass mailing of our SCOsource initiative?
This adress list would be of immense value to any company competing in the OS
business. SCO isn't of much relevance anymore. Microsoft comes to mind. How
secure would such an abundant source of information be?
[ Reply to This | # ]
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