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IBM Subpoenas JP Morgan Securities and McGraw-Hill
Wednesday, March 01 2006 @ 05:25 AM EST

IBM continues its court-scheduled defense discovery. It has subpoenaed documents from JP Morgan Securites, Inc. and McGraw-Hill Companies, Inc. [PDF]. Here's Defendant/Counterclaim Plaintiff IBM's Notice of Service of Subpoenas Duces Tecum [PDF]. That is the kind that asks for documents only. There is no deposition scheduled.

Looking at what IBM is asking them to provide I gather IBM would like to demonstrate what Santa Cruz bought from Novell, what its UNIX assets were, what they were really worth when they bought them and when they transferred them to Caldera, and what Caldera actually bought from Santa Cruz, specifically and including what intellectual property transferred and what didn't. Regarding both transfers, Novell to Santa Cruz in 1995 and then Santa Cruz to Caldera in 2001, it would like documents that speak to how a purchase price was arrived at.

I phrase it that way -- "court-scheduled discovery" -- because I saw Rob Enderle opine that IBM's discovery is untimely. He's factually wrong about that. He also accused IBM of having ulterior motives for doing it now, but having gotten the time issue wrong, obviously the slur can't be right, since it's founded on inaccurate information. This is still the appropriate time the court ordered IBM to do exactly what it is now doing. And don't forget, it wasn't until IBM recently deposed Darl McBride that it found out there were numerous emails between Darl and Microsoft on the subject of Linux. Naturally, it wishes to follow that lead. It couldn't do that before, because it had no fact-based string to pull, because SCO hadn't turned over those missing emails until IBM found out about them during the deposition and then asked for them pointedly.

Here's how it works. SCO has accused IBM of allegedly misusing its material, and so this is the time for fact discovery as to defenses to those claims. SCO didn't provide a list of allegedly misused material until December 22nd. That is the reason why IBM is doing this type of discovery after that and not earlier. Duh.

How could an analyst not know something as basic as that? Or more pointedly, how can an analyst express an opinion without checking the facts first to make sure his opinion is valid? A year ago, I jokingly wrote I wanted to be a tech analyst when I grew up:

I have decided what I want to be when I grow up. I want to be a tech analyst.

No, don't bother to try to talk me out of it. My mind is made up. It's the only job I have ever heard of where you can have huge gaps in your knowledge, get random but truly vital facts utterly wrong, say the opposite of what is observably true, and nobody sues you. They don't even fire you. They don't even notice. No one says a word. In fact, they actually pay you good money, and the next time they want to know something, they forget you got it all wrong the last time and ask you for your opinion all over again.

Being a fortune teller might be just as easy. In fact, I met one once, by chance, and she confided in me what she did for a living and confessed, just between us girls, that she just made stuff up. But I think analysts get paid more, and I believe they get retirement benefits too. And of course it's steadier work.

That's got to beat being a journalist, where you have to do time-consuming actual work that's really hard, like research for hours to dig up proof for the facts you write about.

Here's the truth. IBM is supposed to do defense discovery right now and up until March 17th, and that is why it is doing it now.

Here's what the order said would happen at exactly this moment in time:

III. REVISED SCHEDULING ORDER

Having considered the parties’ proposed Amended Scheduling Orders and the briefing related to the proposed Orders, the court sets forth the following deadlines: . . .

EVENT

DEADLINE

Final Deadline for Parties to
Identify with Specificity All
Allegedly Misused Material

December 22, 2005

Close of All Fact Discovery
Except As to Defenses to
Claims Relating to Allegedly
Misused Material

January 27, 2006

Close of All Remaining
Discovery (i.e., Fact Discovery
As to Defenses to Any Claim
Relating to Allegedly Misused
Material)

March 17, 2006

As you can see, until March 17, 2006, it's time for defense discovery. Just so he knows. That way he can avoid falsely accusing folks in the future, as he did in his article when he wrote that IBM was asking for discovery it should have asked for long ago and was doing it to suggest wrongdoing (presumably on Microsoft's part? Could that be Enderle's worry? You think?).

When people are prejudiced, and they lack accurate knowledge of a subject, it can lead to low blows, because prejudiced people will tend to leap to ugly conclusions. Sometimes they do it unconsciously. Enderle strikes me as obviously prejudiced against IBM and Linux, judging from his track record of statements and articles, so anything he says needs to be viewed in that context, I think. He didn't know this was the exact time for IBM to do this type of discovery, assuming I give him every benefit of the doubt. The problem is, you can't arrive at accurate opinions and conclusions based on inaccurate facts. As the old expression goes, garbage in, garbage out.

Here's what IBM is asking for. IBM asks McGraw-Hill for "Santa Cruz intangible asset valuation documents," specifically a document entitled "Estimation of the Fair Market Value of Certain Intangible Assets of Santa Cruz Operation, Inc. as of May 4, 2001" as prepared by PricewaterhouseCoopers LLP on August 31, 2001 and sent to the then-Controller of Caldera Michael Olson. IBM also asks for all documents relied on or referred to in the report, as well as all draft versions, and all correspondence concerning it. It also wants all documents that refer, reflect or relate to the Agreement and Plan of Reorganization dated August 1, 2000 and amended on September 13, 2000 , December 12, 2000, and February 9, 2001 by and between Santa Cruz, Caldera Systems, Inc. and Caldera International, Inc. IBM wants all documents concerning the sale or transfer of Unix or Unix-related assets from Santa Cruz to Caldera, and all supporting exhibits and work papers supporting the Impairment/Valuation Analysis incorporated in Caldera's October 31, 2001 10K. It wants to know how they decided on a "purchase price of the acquisition for financial reporting purposes."

From JP Morgan Securities, IBM asks for a fairness opinion sent to the board of Santa Cruz by David G. Golden of Hambrecht & Quist in a letter dated September 19, 1995, as well as all documents relied on or referred to in the fairness opinion. IBM also asks for all documents referring to or related to the Asset Purchase Agreement dated September 19, 1995 between Novell and Santa Cruz and all documents concerning the sale or transfer of Unix or Unix-related assets from Novell to Santa Cruz, specifically including how they arrived at a purchase price. (Don't forget we have all the contracts on our permanent Contracts page, including Amendment 1, and Amendment 2 to this APA, as well as the Technology License Agrement, and the TLA's Schedules.) I note IBM asks for "notes, client interviews, discount rate support and analysis, and licensing agreements of the intellectual property or any licensing agreements".

Well, that would be refreshing, to get that spelled out with specificity. What did Novell actually transfer to Santa Cruz? After all, Santa Cruz could only later transfer to Caldera what it had earlier obtained from Novell, and it was not obligated necessarily to transfer all that it had. Specifically, did the copyrights transfer, or does Novell still hold them? All of this information is defense discovery because, for one thing, SCO Group is asking the court to award it billions in damages, and no doubt IBM would like to nail down what Unix was actually worth at the time and how much of Unix SCO Group actually owns. That's relevant because if SCO Group never owned the copyrights in the first place, it's been putting us all through a horrible experience without the right to do so, and the billions it dreamt IBM might "disgorge" to SCO, as they put it recently in a court document, go poof. Even if, in some Alice in Wonderland crazy world, SCO could get some damages for some contract "violation," IBM naturally wishes to limit any such damages to a more realistic, fact-based figure, and that is what defense discovery is for, to establish what the facts really are regarding any alleged harm done.


  


IBM Subpoenas JP Morgan Securities and McGraw-Hill | 418 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here, please
Authored by: Jude on Wednesday, March 01 2006 @ 05:26 AM EST
So PJ can find them

[ Reply to This | # ]

OT here, please
Authored by: Jude on Wednesday, March 01 2006 @ 05:28 AM EST
And please make any links clickable.

[ Reply to This | # ]

First Comment
Authored by: iceworm on Wednesday, March 01 2006 @ 05:53 AM EST

Very, very interesting. IBM again shows they know what they are doing. Good on them.

Over the years my opinion of this court case and its brethren, aunts, uncles, etc. has moved from flabbergasted outrage to the warmest or warm fuzzy feelings that delight the cockles of my heart. There were comments in the past that the neither the Linux community much less any of the greater FLOSS society could afford or even wish to mount an advertising campaign of the magnitude to which this has grown. The results are quite gratifying (warming the cockles of my heart) as the world wide computing community shifts from slavery to freedom.

Thank you PJ and all Groklawyers for your part in preventing truth decay.

iceworm (curmudgeon at large)

[ Reply to This | # ]

McGraw-Hill
Authored by: Anonymous on Wednesday, March 01 2006 @ 06:10 AM EST
My first reaction was: "Don't they publish text books?" A quick google found the following:

Corporate history

McGraw-Hill owns Standard and Poors

In 2001, "Standard & Poor's acquired Corporate Value Consulting from PricewaterhouseCooper".

[ Reply to This | # ]

  • McGraw-Hill - Authored by: Anonymous on Wednesday, March 01 2006 @ 07:24 AM EST
    • Andersen - Authored by: archanoid on Wednesday, March 01 2006 @ 09:14 AM EST
      • Thank you - Authored by: Anonymous on Wednesday, March 01 2006 @ 11:55 AM EST
  • McGraw-Hill - Authored by: rsteinmetz70112 on Wednesday, March 01 2006 @ 08:20 AM EST
IBM Subpoenas Morgan Stanley and McGraw-Hill
Authored by: Anonymous on Wednesday, March 01 2006 @ 06:14 AM EST
Novell Sco Statement

it says there that the copyrights and patents were NOT transferred to SCO.

So what legal standing does this case have again?

IANAL

Alan

[ Reply to This | # ]

the sound of inevitability?
Authored by: Anonymous on Wednesday, March 01 2006 @ 06:34 AM EST
(apologies to the Wakoski Brothers)

If you look at the level of detail in the IBM subpoena - both in the topic it
addresses as well as the kinds of documents and information requested...
does it suggest to you that this is one of many, carefully crafted requests
arriving on the desks of just about every company that's done any kind of
business with SCO?

Every one of these requests is a reminder to the circle of crones that every
mistake is remembered, every mis-step is felt and poorly-chosen allegiances
are rewarded with shame and misery...

...and we've just seen the first two volleys.

Dale's presence in court was probably the guy having to see for himself the
train wreck that he is about to come across. And unlike the Wakoski's hero
Nero, Darl doesn't have the wherewithal to jump off the tracks.

Each one of these subpoenas is a train horn sounding in Darl's ear ...train
wreck coming... train wreck coming...

Charles from Oz.

[ Reply to This | # ]

Tis shows IBM is not content to wait for Novell
Authored by: Anonymous on Wednesday, March 01 2006 @ 06:41 AM EST
SCO v. Novell, that is, where some of these questions are already in play, but
at a much earlier stage.

Instead of waiting (and giving DCOX the opportunity to delay for it) for any
rulings in SCO v. Novell on copyrights and what was actually trnsferred from
Novell -> Santa Cruz and then Santa Cruz -> Caldera, IBM is getting the
information itself.

This does not bode well for SCOX in any way.

Obviously, IBM can ask for this information as it is germane to the case at hand
and most importantly it denies SCOX the ability to say this information is to be
decided and the court should wait for those rulings (amusingly, really as the
same judge is presiding over both caes).

PeteS [not logged in]

[ Reply to This | # ]

IBM Subpoenas Morgan Stanley and McGraw-Hill
Authored by: Just_Bri_Thanks on Wednesday, March 01 2006 @ 06:52 AM EST
I don't think that untill March 17th is enough time. I potentially see all
these non-parties motioning and protesting all of IBM's discovery time right out
the window.

[ Reply to This | # ]

Enderle hates IBM
Authored by: rkhalloran on Wednesday, March 01 2006 @ 07:05 AM EST
Apparently he used to work for Rolm, a PBX maker Back in the Day, which IBM
acquired. After a short period they parted ways, and he became the
opinion-for-hire we all know. As a result anything IBM does is, in his opinion,
Stupid-Wrong-and-Eeeevil. He'd pan IBM if they were taking up a collection for
Katrina orphans.

[ Reply to This | # ]

IBM Subpoenas Morgan Stanley and McGraw-Hill
Authored by: Steve Martin on Wednesday, March 01 2006 @ 07:05 AM EST

Here's how it works. SCO has accused IBM of allegedly misusing its material, and so this is the time for fact discovery as to defenses to those claims. SCO didn't provide a list of allegedly misused material until January 27th. That is the reason why IBM is doing this type of discovery after January 27th and not earlier. Duh.

Forgive my confusion, PJ, but I thought TSG was supposed to provide this list no later than December 22nd. Did they actually provide more misused material after that deadline?

---
"When I say something, I put my name next to it." -- Isaac Jaffee, "Sports Night"

[ Reply to This | # ]

The "problem" with Groklaw
Authored by: Anonymous on Wednesday, March 01 2006 @ 07:14 AM EST
"When people are prejudiced, and they lack accurate knowledge of a subject, it can lead to low blows, because prejudiced people will tend to leap to ugly conclusions."

This is the "problem" that people like Enderle have with Groklaw. It always strives to be factually accurate and provide commentary and evaluations based upon those facts. His and other analyst's commentary is based on FUD, innuendo, and spin. Why confuse the truth with facts.

PJ, while you may be great, I respectfully submit that you would never make it as tech analyst. Your refreshing, to us anyway, honesty and integrity would never pass muster with these people.

We like you right where you are!!

[ Reply to This | # ]

IBM Subpoenas Morgan Stanley and McGraw-Hill
Authored by: blacklight on Wednesday, March 01 2006 @ 07:25 AM EST
SCOG was finished as a moving target when judge Wells ordered SCOG to stop
amending its pleadings a couple of months ago. Apparently, IBM has used that
time well to work out what information IBM wants to subpoena to mount a
devastating fact-based defense.

The effectiveness of the IBM legal team shows through in the flurry of subpoenas
IBM issued within 48 hours of IBM's discovery start date. Further, every
subpoena is crafted to demand specific information, no more and no less -
Apparently, IBM doesn't believe in creating information overload for itself.
IBM's tactic is to cut to the heart of the litigation and take its heart out.

Within the context that SCOG is no longer driving discovery, SCOG is now a deer
caught in the headlights, unable to fight or run away. Unless SCOG pulls a
rabbit out of a hat, SCOG's credibility as a corporation is about to be utterly
destroyed in an American court room - with all of corporate America watching.
SCOG will be losing a lot more than just a court case.

---
Know your enemies well, because that's the only way you are going to defeat
them. And know your friends even better, just in case they become your enemies.

[ Reply to This | # ]

Birdies
Authored by: Anonymous on Wednesday, March 01 2006 @ 07:27 AM EST
Given the defense subpoena's targeting I wonder how much of the material was
already collated in a folder in somebodies desk waiting for the official request
to present it.

[ Reply to This | # ]

What's it all about, Alfie?
Authored by: overshoot on Wednesday, March 01 2006 @ 08:31 AM EST
What did Novell actually transfer to Santa Cruz? After all, Santa Cruz could only later transfer to Caldera what it had earlier obtained from Novell, and it was not obligated necessarily to transfer all that it had. Specifically, did the copyrights transfer, or does Novell still hold them? All of this information is defense discovery because, for one thing, SCO Group is asking the court to award it billions in damages, and no doubt IBM would like to nail down what Unix was actually worth at the time and how much of Unix SCO Group actually owns.

Well, perhaps in part. More to the point, it looks to me as though it's much more about "What did Caldera know and when did they know it?"

There are many, many other ways that IBM could show that the plaintiff's claimed damages were de minimis at most. What this does is show that the plaintiff knew that they were filing a frivolous suit from the beginning. Reports like this are (IMNSHO, IANAL) much more telling at the summary judgment stage.

[ Reply to This | # ]

IANAL question - technicality?
Authored by: Anonymous on Wednesday, March 01 2006 @ 08:32 AM EST
I was reading through the subpoenas, and I noticed something odd. it is a small
difference in the format of the attached lists of the documents to be produced.
In the attached list of the subpoena to JP Morgan, the items are numbered
sequentially 1 through 7, even though some are under a different section heading
than others. In the attached list of the subpoena to McGraw-Hill, the numbering
of the items starts again at 1 when a new section heading begins.

I was wondering if both of these formats are acceptable, or if only one of these
formats is technically correct, and if so, can a claim be made by anyone that
either of these subpoenas is defective because of this?

[ Reply to This | # ]

IBM Subpoenas JP Morgan Securities and McGraw-Hill
Authored by: Anonymous on Wednesday, March 01 2006 @ 09:12 AM EST
Concerning analyst opinions, you know what opinions are like.
Apparently some analysts have more than one.

[ Reply to This | # ]

Time is running out.
Authored by: rsteinmetz70112 on Wednesday, March 01 2006 @ 09:16 AM EST
With the end of discovery imminent, IBM must be about to the end of their
subpoenas. I imagine they will end this week, if they haven't already.

I wonder why we haven't seen any more from SCOG?

---
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 | # ]

IBM Subpoenas JP Morgan Securities and McGraw-Hill
Authored by: webster on Wednesday, March 01 2006 @ 09:18 AM EST
Presumably SCO has all this material also. I presume IBM asked for it from
them. It is always interesting to see if what they got from SCO matches what
they get from JPM and MH. The truth is out there ready for harvest.

---
webster
-----------Free China

[ Reply to This | # ]

It WAS a curious dream
Authored by: bingotailspin on Wednesday, March 01 2006 @ 09:27 AM EST
"It WAS a curious dream, dear, certainly: but now run in to your tea; it's
getting late." - Alice's Adventures in Wonderland, Lewis Carroll

[ Reply to This | # ]

Enderle and IBM
Authored by: Anonymous on Wednesday, March 01 2006 @ 09:33 AM EST

Those two words combined in any article requires that anything mentioned in said article be taken with a gargantuan grain of salt. Enderle's had a bug up his, um, you know what ever since he got canned by IBM. People like Enderle just cannot come to grips with the fact that they're not the world beater that they think they are.

[ Reply to This | # ]

Poor Rob Enderle
Authored by: kawabago on Wednesday, March 01 2006 @ 12:07 PM EST
Isn't it sad when cousins marry?

[ Reply to This | # ]

Bob Mims and SLTrib - I am impressed
Authored by: inode_buddha on Wednesday, March 01 2006 @ 12:23 PM EST
Given his target audience, locale, and forum, I think Bob Mims has done an admirable job even though we agonize over the details here.

In short, I think his article is a fair piece of good reporting. Let's not get our context mixed up with his, because that would be prejudicial to everybody, IMHO.

---
-inode_buddha
Copyright info in bio

"When we speak of free software,
we are referring to freedom, not price"
-- Richard M. Stallman

[ Reply to This | # ]

IBM Subpoenas JP Morgan Securities and McGraw-Hill
Authored by: Anonymous on Wednesday, March 01 2006 @ 12:54 PM EST
I guess IBM wants to know what SCO paid all that money for.

(I know you are asking which SCO? Well SCO can't seem to make up it's mind
either.)

[ Reply to This | # ]

Come on guys cut Rob some some slack
Authored by: Anonymous on Wednesday, March 01 2006 @ 02:29 PM EST
I think we need to give Rob more credit.

If he is peeved about something, I would much rather have him making stuff--not
blowing it up!

Dave

[ Reply to This | # ]

Why is Enderle still talking?
Authored by: Jaywalk on Wednesday, March 01 2006 @ 03:36 PM EST
I saw Rob Enderle opine that IBM's discovery is untimely. He's factually wrong about that. He also accused IBM of having ulterior motives for doing it now
I would have thought that Enderle would have enough sense to avoid this subject by now. After all the times he's shown himself to be wrongheaded on this topic, it should be embarassing to be quoted on it again. In his SC OForum speech he effectively identified himself as a disgruntled former IBM employee with a pro-Microsoft bias. He also predicted a SCO victory on the interesting theory that the case wouldn't be decided on the facts. Later on, he admitted that he was wrong and that the SCO case is "all but done."

So -- to summarize -- he was completely and catastrophically wrong on all counts and admits that he knows that. So why call attention to the fact by harping on the subject? And (as an added bonus) be wrong about it again?

---
===== Murphy's Law is recursive. =====

[ Reply to This | # ]

They already have the papers
Authored by: argee on Wednesday, March 01 2006 @ 05:30 PM EST
IBM undoubtley already has copies of most if not all the
papers being asked for. The subpoena will make them legal
to present in court and allow to cross check them for
alterations.
RG


---
--
argee

[ Reply to This | # ]

Is Me Inc. a Ruse?
Authored by: mram on Wednesday, March 01 2006 @ 05:38 PM EST
SCO knows that they might have to pay millions in damages to IBM.

I predict MS (or a front) will acquire Me Inc for an obscene amount of money
when SCO is asked to put up - and Yarro / Darl and Co will make a ton of money
from this.

Thats the golden parachure for these crooks.



[ Reply to This | # ]

How will SCO object to this?
Authored by: Khym Chanur on Wednesday, March 01 2006 @ 06:29 PM EST
Assuming that SCO objects to this, what sort of justification would they use? They might try saying that its protected by client/attorney privilege, even though accountants aren't attorneys, but I vaguely recall that other companies besides SCO and other lawyers besides BSF have made that claim in the past, so that sort of objection might not be that out-there enough for the likes of SCO/BSF. Maybe they'll claim that the material isn't relevant, even though:
  1. It clearly is relevant.
  2. Even if it wasn't relevant, it would be for the accounting firms to object; SCO has no standing to object if the material is merely irrelevant.

---
Give a man a match, and he'll be warm for a minute, but set him on fire, and he'll be warm for the rest of his life. (Paraphrased from Terry Pratchett)

[ Reply to This | # ]

SCO recognizes owing Novell for 04&05 license collections
Authored by: jog on Wednesday, March 01 2006 @ 07:50 PM EST
New S-1/a filing at ref F11.
"Restricted cash and payable to Novell Inc."
jog

[ Reply to This | # ]

Tech Analysts
Authored by: mrcreosote on Thursday, March 02 2006 @ 12:44 AM EST
A couple of good articles at El Reg, regarding IDC's prognostications about
Itanic.

http://www.theregister.co.uk/2006/02/17/itanic_oracle_idc/
http://www.theregister.co.uk/2006/02/24/clabby_cured_again/

---
----------
mrcreosote

[ Reply to This | # ]

    Enough Time???
    Authored by: Anonymous on Thursday, March 02 2006 @ 10:15 AM EST
    Will Mcgraww-Hill, JP Morgan, etc be able to argue they do not have enough time
    to respond to these arguments in time to close fact discovery?

    The arguments given to intel re sco depostions, is that even if the original
    notices had been accurate, I think there would have been about 25 days to
    complete the discovery.

    The judge even agreed this was likely not enough time for intel.

    These discovery notices were sent on the 28 of Feb, leaving 17 days (13 business
    days) to provide appropriate info back to the courts.

    Is it possible the JP, McG-Hill,etc can/will argue there is not enough time to
    complete the requests, and therefor should not have to?

    [ Reply to This | # ]

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