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| Three SCO Memos-- no, Four -- including the one on spoliation, and Novell and RedHat filings too |
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Thursday, September 28 2006 @ 12:14 AM EDT
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There are twenty more documents on Pacer, including three SCO memoranda in SCO v. IBM I believe you've been hankering to read. But I'll just let you know that Novell got permission [PDF] to file its Amended Counterclaims [PDF], as we expected, and there is also a Certificate of Service, that lets us know that Novell's Second Set of Interrogatories to the SCO Group and Novell's Third Set of Requests for Production to SCO Group were served on SCO on the 27th. No moss growing on that case. And
we have the latest Red Hat letter [PDF] to the judge also. Here are the SCO memos in SCO v. IBM: SCO's Redacted Memorandum in Support of its Motion for Summary Judgment on IBM's Second, Third, Fourth and Fifth Counterclaims
SCO's Redacted Memorandum in Support of SCO's Motion for Relief for IBM's Spoliation of Evidence
Reply Memorandum in Support of SCO's Objections to Order Granting in Part IBM's Motion to Limit SCO's Claims There is a lot more to come, including exhibits. But this will get you started while I slave away.
: ) [ Update: There is a fourth. Groan. With a gazillion exhibits. I'll get it uploaded soon.] Update 2: I have now read the memo in "support" of SCO's claim of spoliation of evidence. It is a positive hoot, because SCO has carefully excised and redacted every bit of the memo that might tell us what in the world they are talking about. All we get to read in full are its legal arguments. Is that not SCO to the max? FUDsters to the end. But they forgot one detail, a footnote that gives us a strong clue that whatever was "destroyed" it wasn't done with intent. Read footnote 1 on page 8 of the PDF, 5 of the document. It reads like this: Other circuits have not required bad faith or intentional destruction of the material in imposing an adverse inference instruction...."The inference is adverse to the destroyer not because of any finding of moral culpability, but because the risk that the evidence would have been detrimental rather than favorable should fall on the party responsible for its loss." Residential Funding Corp. v. DeGeorge Fin. Corp...." When I read that, I laughed out loud, and said to myself, If they thought IBM had done something the judge would think was really deliberate, there'd be no need for that footnote. Anyway, just saying that the overall impression I get is they don't expect to win this motion. So why do it? Maybe it was to just have something folks could pay attention to, so they wouldn't notice that IBM just dumped a load of bricks on SCO's head.
Here are the exhibits that go with these memos. There are quite a few that are sealed, so if you notice the numbers are off with blanks, that is the explanation. First, here are the exhibits we have available for #819, SCO's Redacted Memorandum in Support of SCO's Motion for Relief for IBM's Spoliation of Evidence. The exhibits are 1-3 and A-J, but a number of them are sealed:
Here are the exhibits that go with #820, SCO's Redacted Memorandum in Support of its Motion for Summary Judgment on IBM's Second, Third, Fourth and Fifth Counterclaims. Again, the exhibits run A-R, but several are sealed:
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Exhibit C - Declaration of Dr. Evan Ivie (referencing his expert reports)
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Exhibit F - Declaration of Marc J. Rochkind (same)
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Exhibit J - Declaration of Dr. Thomas A. Cargill (same)
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Exhibit K - Article in Linux Planet, "$1 Billion Well Spent?" from April 24, 2003, interviewing Jim Stallings
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Exhibit L - Q & A with Jim Stallings, in Open Source News, June 28, 2004
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Exhibit M - "Open Source leader: SCO suits a boon to Linux," on ZDNET, March 11, 2005
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Exhibit N - "How SCO's Threats Rallied Linux," BusinessWeek, February 7, 2005
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Exhibit Q - Declaration of Jim Wilt, Nov. 23, 2004
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Exhibit R - Declaration of Steven Sabbath, Nov. 19, 2004
And finally, we have an IBM Notice of Conventional Filing of the following: Please take notice that Defendant/Counterclaim-Plaintiff International Business Machines
Corporation (“IBM”) has conventionally filed the original and two copies of the following
document, paper or other material:
IBM’s Memorandum in Support of its Motion for Summary Judgment on SCO’s
Unfair Competition Claim (SCO’s Sixth Cause of Action). dated September 27, 2006.
This document, paper or other material has not been filed electronically because it has
been filed under seal pursuant to the Court’s September 16, 2003 Protective Order, Docket No.
38, and because the electronic file size of the materials exceeds 2 megabytes.
This document has been conventionally served on all parties.
We are not going to get to see that one, although there could be a redacted version. It references the protective order, which is here. Update: Here's the 4th SCO Memorandum and the gazillion exhibits, actually 1-4 and A-V, but some of them are sealed, so you'll notice some blanks: SCO's Redacted Memorandum in Support of its Motion for Partial Summary Judgment on SCO's Third Cause of Action, for Breach of Contract
Exhibit 1 - Westlaw case, McDonnell v. Cardiothoracic & Vascular Surgical Associates, Inc.
Exhibit 2 - Westlaw case, Thompson v. United Transportation Union
Exhibit 3 - Westlaw case, The Millgard Corporation v. Liberty Mutual Insurance Company
Exhibit 4 - Westlaw case, McClane v. Rechberger
Exhibit A - AT&T-Sequent Licensing Agreement, signed by Otis Wilson for AT&T, April 18, 1985 and David P. Rodgers for Sequent on April 12, 1985
Exhibit B - AT&T-Sequent Sublicensing Agreement, signed by Otis Wilson for AT&T Technologies, Inc. on Jan. 28, 1986 and David P. Rodgers on January 20, 1986 for Sequent
Exhibit C - Segment of Deposition of David Frasure, June 8, 2004
Exhibit D - Segment of Deposition of David Frasure, in USL v BSDi, Dec. 8, 1992
Exhibit E - Segment of Deposition of Geoffrey Green, Nov. 15, 2004
Exhibit F - Segment of Deposition of Burton Levine, Jan. 19, 2005
Exhibit G - Segment of Deposition of Otis Wilson, Aug. 25, 2006
Exhibit H - Segment of Deposition of David P. Rodgers, June 10, 2004
Exhibit J - Segment of Deposition of Thomas L. Cronan III, Dec. 14, 2004
Exhibit K - Segment of Deposition of Jeffrey W. Mobley, Jan. 24, 2006
Exhibit M - Declaration of Ira Kistenberg, Nov. 12. 2004
Exhibit N - Segment of Deposition of Michael DiFazio, Jan. 13, 2005
Exhibit O - Declaration of Mitzi Bond, 11/4/04
Exhibit Q - Declaration of Evelyn Davis, 11/4/04
A lot of this is old stuff. But notice Exhibit G, the August 25, 2006 deposition of Otis Wilson. Yup. The very same. Why SCO decided to include it is a mystery, since he doesn't help them that I can see. Maybe they included it to be nice to us, the deeply interested, so we'd know what happened. Mr. Wilson, when asked what he would have answered if asked back in the 80s what a derivative work was, says the following: I would have responded -- my response would have been anything that you create, or modify, or change, or alter or create using the software product would be a derivative work. Our position with regard to the derivative works was that anything that contained a portion of the software product would be AT&T's. Anything else would be theirs, the licensees. And there was a lot of discussion about keeping that clear. So the reason for that was that the licensee would not have any beneficial use of the software if they couldn't use it to do something. Exactly. That's exactly what IBM says. SCO probably wishes he'd stopped after the first sentence, but he didn't. I notice that David Marriott was there. I'm sure he wouldn't have missed it for the world.
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| Authored by: ankylosaurus on Thursday, September 28 2006 @ 12:16 AM EDT |
As if PJ would make a mistake...
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The Dinosaur with a Club at the End of its Tail[ Reply to This | # ]
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| Authored by: Kosh Nanarek on Thursday, September 28 2006 @ 12:17 AM EDT |
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"And so, it begins."[ Reply to This | # ]
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- The Great Wall of Patents - Authored by: eric76 on Thursday, September 28 2006 @ 01:28 AM EDT
- GIF Format Patents Expiring - Authored by: Anonymous on Thursday, September 28 2006 @ 06:05 AM EDT
- OT: the Patterns of Global Terrorism Report - Authored by: jplatt39 on Thursday, September 28 2006 @ 06:43 AM EDT
- Wikis and Open Source: Is this FUD? - Authored by: jplatt39 on Thursday, September 28 2006 @ 08:06 AM EDT
- Very useful utility - dwdiff - Authored by: tiger99 on Thursday, September 28 2006 @ 09:13 AM EDT
- OT: SCOX Prices today - Authored by: Peter H. Salus on Thursday, September 28 2006 @ 10:15 AM EDT
- Patens bound to disappear? - Authored by: vadim on Thursday, September 28 2006 @ 10:24 AM EDT
- Interesting New program - Authored by: Anonymous on Thursday, September 28 2006 @ 11:09 AM EDT
- "Accenture pulls out of £12.4bn NHS IT project" - Authored by: Anonymous on Thursday, September 28 2006 @ 11:26 AM EDT
- All you need is ubuntu - Authored by: Alan(UK) on Thursday, September 28 2006 @ 12:36 PM EDT
- SCO Group's Neighbors expecting to have water-front property - Authored by: Anonymous on Thursday, September 28 2006 @ 01:36 PM EDT
- Dunn: Was Told Phone Records Were Public - Authored by: SpaceLifeForm on Thursday, September 28 2006 @ 01:44 PM EDT
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| Authored by: Anonymous on Thursday, September 28 2006 @ 12:46 AM EDT |
| "The file is damaged and cannot be repaired". [ Reply to This | # ]
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| Authored by: Anonymous on Thursday, September 28 2006 @ 12:59 AM EDT |
| The SCO motion mentions "good faith" at least half a dozen times. [ Reply to This | # ]
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| Authored by: feldegast on Thursday, September 28 2006 @ 01:00 AM EDT |
As these are scanned documents I have begum transcribing 820
I use Docmorph as my 1st step and already have basic HTML, cleaning up now.
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IANAL
My posts are ©2004-2006 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, September 28 2006 @ 01:47 AM EDT |
| Otis Wilson Deposition Transcript (8/25/06) at 120 [ Reply to This | # ]
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| Authored by: jog on Thursday, September 28 2006 @ 02:49 AM EDT |
Where the 2.5 Kernel idea came from :)
jog[ Reply to This | # ]
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- 819Exj - Authored by: Golem on Thursday, September 28 2006 @ 02:57 AM EDT
- 819Exj - Authored by: red floyd on Thursday, September 28 2006 @ 10:42 AM EDT
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| Authored by: jmc on Thursday, September 28 2006 @ 03:34 AM EDT |
I see that SCO has included David Frasure's deposition in the BSDI case but not
Otis Wilson's.
Yet wasn't all that fuss about getting another deposition from Otis Wilson
because he was supposed to have contradicted in his previous deposition in this
case what he said in the BSDI case? (Talking about a different product on
different non-commercial terms to a different party, I know).
Maybe they only included the segment of the deposition to prove that they got
it?[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, September 28 2006 @ 04:34 AM EDT |
Do you remember when Maureen O'Gara brought an action to unseal documents? IIRC
she lost, but both SCO and IBM nonetheless agreed to review and unseal documents
where possible - and did so.
I strongly suspect that the only reason for all these latest redactions is to
stop the world from seeing how little evidence SCO actually has.
Is there any way SCO could be forced to unseal some of the documents, given that
previous pledge?[ Reply to This | # ]
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| Authored by: N. on Thursday, September 28 2006 @ 04:38 AM EDT |
PJ: So why do it?
Well, bear in mind they made the claim in a hearing, which ticked off Wells no
end. Which would have been worse for SCO: backing out and forgetting about it,
or following up on it? What would the consequences have been had they just let
it slide?
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N.
(Now almost completely Windows-free)[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, September 28 2006 @ 04:53 AM EDT |
Otis Wilson said:
"Our position with regard to the derivative works was that anything that
contained a portion of the software product would be AT&T's"
Actually, that does support SCO's claim. AiX contains a portion of AT&T's
code. Therefore, according to what Wilson says here, AiX is AT&T's property
as a derivative work. The fact that IBM has contemporary written evidence to the
contrary isn't the point - SCO have got Wilson to support their claim that any
software that contains any portion of AT&T's code (however small) is
entirely AT&T's.[ Reply to This | # ]
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- Three SCO Memos-- no, Four -- including the one on spoliation, and Novell and RedHat filings too - Authored by: eskild on Thursday, September 28 2006 @ 05:07 AM EDT
- Three SCO Memos-- no, Four -- including the one on spoliation, and Novell and RedHat filings too - Authored by: Anonymous on Thursday, September 28 2006 @ 05:09 AM EDT
- Three SCO Memos-- no, Four -- including the one on spoliation, and Novell and RedHat filings too - Authored by: Anonymous on Thursday, September 28 2006 @ 06:48 AM EDT
- Doesn't require *ANY* AT&T code to be a SOFTWARE PRODUCT - Authored by: Anonymous on Thursday, September 28 2006 @ 07:58 AM EDT
- Three SCO Memos-- no, Four -- including the one on spoliation, and Novell and RedHat filings too - Authored by: Steve Martin on Thursday, September 28 2006 @ 08:39 AM EDT
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| Authored by: Anonymous on Thursday, September 28 2006 @ 06:02 AM EDT |
SCO seem to have been able to find a few people at AT&T and Dynix to support
thier view of a 'derivative' work.
Thier view may not be of import as it does not seem to coincide with the
generally accepted meaning of the word but this will need to be flagged up.
This does not raise a fact in dispute and it may be possible to deal with this
via a PSJ.
--
MadScientist[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, September 28 2006 @ 07:14 AM EDT |
Bad faith seems not even to be required to establish adverse inference,
eventhough SCO in addition asserts and proves it.[ Reply to This | # ]
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| Authored by: The Cornishman on Thursday, September 28 2006 @ 07:16 AM EDT |
I understand the footnote quoted to be saying to the Judge that these cases
indicate that SCO does *not need* to show that IBM did anything deliberately to
lose evidence, negligence is enough to uphold the remedies that SCO is asking
for. IANAL of course, but if I were writing this memorandum then I would be
making the same observation. BS&F only have to do just enough, after all.
---
(c) assigned to PJ[ Reply to This | # ]
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| Authored by: tuxi on Thursday, September 28 2006 @ 08:04 AM EDT |
SCO seem desperate with this memorandum:
Fi
rst there is no order saying, in words or substance, that "SCO must identify
nine coordinates of line, page and file for any technology, including method or
concept that SCO seeks to protect or it will be stricken from the
case."
And in this quote, they practically admit they
can't provide the proof with the specificity required to comply with the
discovery requests and the court orders (even trying to claim the court didn't
order it).
Second, even if such an order had been entered -
and it was not - SCO does not have the "nine coordinates" of information for the
disclosures that IBM made.
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tuxi [ Reply to This | # ]
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| Authored by: Anonymous on Thursday, September 28 2006 @ 08:09 AM EDT |
Don't forget that IBM submitted the Orders already granting IBM's Motions. All
that Judge Kimball is left to do is grab a pen and sign them.[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, September 28 2006 @ 08:40 AM EDT |
SCO cites case law to claim that destruction of evidence when there was the
potential for litigation rises to the level of spoilation. Since the U.S.
Supreme Court ruled in the Arthur Andersen case that there needed to be actual
litigation/subpoenas before companies had to under go the onerous task of
preserving all work products, SCO's claim clearly seems bogus. Of course that
unanimous court decision didn't help Andersen since the years of not being able
to audit any publicly traded company while the case was appealed put them out of
business, but that's not the issue at hand. Maybe SCO can take the same tack
that they used with Wells and claim the Supreme Court was confused as to what
they really meant.[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, September 28 2006 @ 09:07 AM EDT |
> All we get to read in full are its legal arguments. Is that not SCO to the
max? FUDsters to the end.
The evidence spoiled is apparently some Aix/Dynix code, owned by SCO, that ended
up in Linux.
Well, if SCO was the owner of the code, they still have it.If it ended up in
Linux, it still can be identified. Thus
no evidence whatsoever was spoiled.
[ Reply to This | # ]
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- no evidence spoiled - Authored by: Anonymous on Thursday, September 28 2006 @ 10:01 AM EDT
- no evidence spoiled - Authored by: Anonymous on Thursday, September 28 2006 @ 11:02 AM EDT
- no evidence spoiled - Authored by: Anonymous on Thursday, September 28 2006 @ 11:09 AM EDT
- Possibly - Authored by: Anonymous on Thursday, September 28 2006 @ 11:23 AM EDT
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| Authored by: Anonymous on Thursday, September 28 2006 @ 10:48 AM EDT |
No doubt spoilation is lame and dead in the water. What I think is amazing is
that sco acutally got some at$t people to support SCO's meaning of the contract.
Seems like they copied and pasted a lot and had the employees sign off on it.
Question how can it be that their are 2 interpretations of the contract. Does
the judge ultimately decide what the interpretation is? Of course both sides
have witnesses interpretting the contract to their advantage. So seems like a
empass?[ Reply to This | # ]
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| Authored by: Stephen on Thursday, September 28 2006 @ 12:10 PM EDT |
This footnote in IBM-820 caught my eye:
4
...the negotiators for Novell's counter-party Santa Cruz (not the same company
as SCO)... (p. 12)
Is the dithering about SCO's history
finally over? The complaint, you may recall, referred to both corporations
interchangeably as "SCO", permitting SCO to downplay their Caldera history.
[ Reply to This | # ]
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| Authored by: Jaywalk on Thursday, September 28 2006 @ 12:10 PM EDT |
IBM knew or reasonably should have known that in discovery SCO
would ask IBM to produce the material within the LTC programmers' control with
respect to the
contributions they had made to Linux
development. So it sounds like their "spoliation" claims deal
with data from the Linux Technology Center. But, IIRC, the way the case worked
out, SCO originally didn't ask for data about Linux, just AIX. When Wells gave
them all the AIX data they could wish for, they then said they wanted some Linux
data as well. IBM gave them some of that, but not everything that they wanted,
so they went back to Wells. That was when they told her that she had ordered
IBM to give them all sorts of Linux stuff. She said that not only did she not
order those things but, going back to the original request, SCO didn't even ask
for those things. She shot the new request down.It's hard to tell with all
the redactions, but it sounds like SCO is asking the judge to impose some
draconian penalties because IBM accidently did not keep some information
SCO might have asked for but IBM would have never have had to turn
over. ---
===== Murphy's Law is recursive. ===== [ Reply to This | # ]
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| Authored by: Glenn on Thursday, September 28 2006 @ 05:14 PM EDT |
The 829 filing, "Exhibit F - portion of deposition of Jay Vosburgh,
November 17, 2005" inclusion is odd because it does not seem to support any
of the SCOG's contentions either.
Jay is member of the IBM LTC and is asked if any of the computers at his home
have or have ever had any Dynix/ptx, AIX, or System V source code files on them,
or if he has ever accessed any remote computers using SSH, SCP, etc. Jay answers
in the negative each time.
This would would not support any claim that the LTC workers had been tainted
by exposure to SYS V, AIX, Or Dynix source code.
Glenn[ Reply to This | # ]
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| Authored by: Anonymous on Friday, September 29 2006 @ 03:49 PM EDT |
What an incredibly weak memo. You know a contract case is in trouble when a
motion fails to even mention the clauses in a contract that the lawyers should
expect their opponents will rely on.
Specifically, the part of the Sequent contract that says that once info becomes
public through no fault of Sequent's, Sequent is free to share it with anybody.
It's hilarious, because SCO actually points to the "merger clause" -
standard "this is the entire agreement" language- to try to imply that
they've covered all the exits. The only way this SJ motion could possibly
succeed is if nobody involved in this case bothered to read the contract.
[ Reply to This | # ]
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