Let's get back to work. Here is Exhibit 32 of IBM's exhibits supporting their various motions for summary judgment in SCO v. IBM. The date is October 23, 2003. If you look on our chart of all the exhibits, you will see how IBM uses this particular exhibit: K Br. ¶186; UC. Br. ¶¶10, 11; Interference Br. ¶6; DJ Br. ¶¶137, 192 So this one supports four summary judgment motions: Note that there is a Revised Supplemental Response to IBM's First and Second Set of Interrogatories [PDF] also, dated January 15, 2004, and once we have that in text, I'll put it here also. To meaningfully follow this, you need to read or reread IBM's First Set of Interrogatories and Requests for Documents and SCO's initial Responses to First Set of Interrogatories and Request for the Production of Documents, both of which we saw long ago, when they were attached to IBM's Memorandum in Opposition to SCO's Motion to Compel. This is further, supplemental responses by SCO. I've redacted people's emails, as usual, as a kindness. I started to remove all the names too, but then I realized that this is an Honor Roll.
You are going to die laughing when you see SCO's list of methods that IBM was allegedly supposed to keep confidential, like "...ways to modify IBM's version of UNIX known as AIX and Sequent's version of UNIX known as Dynix/ptx." But the reason IBM includes this nonsense is because IBM's very first Interrogatory in this case was the following: Please identify, with specificity (by product, file and line of code, where appropriate) all of the alleged trade secrets and any confidential or proprietary information that plaintiff alleges or contends IBM misappropriated or misused, including but not limited to as alleged in ¶ 105 of the Complaint. SCO said they couldn't answer fully until they had more discovery, and then it listed methods and concepts it felt were supposed to be kept confidential: In addition to the General Objections set forth in Plaintiff's Responses, SCO notes that it still has not received responsive discovery from IBM that would allow it to fully answer this
question because part of this information is peculiarly within the knowledge of IBM. Subject to and without waiving these objections, Plaintiff supplements and revises its response to this Interrogatory No. 1 and states that the information IBM (and separately, Sequent) agreed to maintain as confidential or proprietary for SCO and/or trade secrets includes, without limitation, UNIX software design methods for creation and modification of software based on UNIX System V, including those developed in AIX and Dynix. These UNIX methods include ways to modify IBM's version of UNIX known as AIX and Sequent's version of UNIX known as Dynix/ptx. The UNIX methods include those inherent in and learned through access to the System V source code licensed to IBM and/or Sequent and those developed by IBM and/or Sequent in creating derivative works and modifications based on UNIX System V pursuant to licensing agreements with SCO's predecessors and SCO and those that IBM and/or Sequent agreed to maintain in confidence for SCO's predecessors and SCO, in addition to UnixWare code and methods provided to IBM separately. Without limitation, the methods include technical UNIX categories, such as multiprocessor locking and unlocking methods, methods for avoiding locking requirements, methods for implementing filing systems, de-bugging methods, methods for implementing and improving processor scalability, methods for implementing and improving processor reliability, methods for implementing and improving processor accessibility, methods for implementing and improving scheduling systems, methods for implementing and improving memory management, methods for implementing and improving threading and multi-threading, and methods for implementing and improving general system functionality based on UNIX technology. Source code files identified by SCO thus far which are responsive to Interrogatory No. 1 and part of which include information (including methods) that IBM was required to maintain as confidential or proprietary pursuant to
contract with SCO and/or which constitute trade secrets misused by IBM are found within Linux 2.4 and/or Linux 2.5 kernels under the following source file headings: And then it provided a list you will also enjoy, a list of files it wanted to be able to look at, so it could find the infringements, ha ha, but if you click on our Unix Books project, you'll find all the Unix methods and concepts you can eat on public display, with those beans spilled long ago. But the point is, SCO didn't say one doesn't need specific lines when it comes to methods and concepts, as one of their experts later tried to claim after the massive hunt proved fruitless, an assertion Judge Wells very appropriately, in my view, shot down. It said it needed discovery of source code so it could find the methods and concepts in the code: SCO does not contend that the entire source code in all files identified above contains proprietary and confidential information and/or trade secrets. Rather, information (including code and methods) that IBM agreed to maintain as confidential is interspersed through parts of each identified file. Discovery is required to identify the ways and extent to which IBM improperly used confidential and proprietary information and/or trade secrets in creating the source code that is contained in each of the above files. In addition, source code files identified by SCO thus far which may be further responsive to Interrogatory No. 1 and which may, on information and belief, include information (including methods) that IBM was required to maintain as confidential or proprietary pursuant to contract with SCO and/or which constitute trade secrets misused by IBM are found within Linux 2.4 and/or Linux 2.5 kernels under the following source file headings This is followed by another list. And then this telling sentence: Plaintiff needs to complete discovery of IBM to determine with particularity the specific ways in which the above-referenced files were created by IBM and its agents, contractors and partners, the methods used in creating such files, and the relationship of such methods to UNIX technology protected under confidentiality agreement with SCO. SCO will therefore provide additional supplements to this interrogatory answer as discovery progresses. So, two different stories from SCO. As usual, that was then, this is now. They got the source code in discovery, so we may assume they hunted and hunted and couldn't find what they were looking for after all. Hence, now it's "We don't need specific lines of code when it's a method." Ah, those SCO rascals. Anyway, I found this document hilarious, because it so vividly shows the change in tune. *******************************
Brent O. Hatch (5715)
HATCH, JAMES & DODGE
[address, phone, fax]
Stephen N. Zack (admitted pro hac vice)
Mark J. Heise (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]
Attorneys for Plaintiff
______________________________
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
_____________________________
THE SCO GROUP,
Plaintiff,
v.
INTERNATIONAL BUSINESS MACHINES CORPORATION,
Defendant.
_______________________________
PLAINTIFF'S SUPPLEMENTAL RESPONSE TO DEFENDANT'S FIRST SET OF
INTERROGATORIES
Case No. 2:03CV0294DAK
Judge: Dale A. Kimball
Magistrate Brooke C. Wells
_______________________________
Pursuant to Rule 33 of the Federal Rules of Civil Procedure, and the
Local Rules for the United States District Court for the District of
Utah, Plaintiff, The SCO Group, Inc. ("SCO"), hereby files this
Supplemental Response to Interrogatories No. 1 through 8 of Defendant's
First Set of Interrogatories and states as follows:
Based upon the discussions with IBM, which clarified the information
sought by IBM, SCO hereby files its revised and supplemental answers to
interrogatories.
GENERAL OBJECTIONS
SCO hereby incorporates by reference all of its General Objections
set out in Plaintiff's Responses to Defendant's First Set of
Interrogatories and First Request for the Production of Documents (the
"Plaintiff's Responses"). All of SCO's original General Objections are
incorporated into the following Specific Objections and Responses as if
fully set forth therein. Pursuant to the Federal Rules of Civil
Procedure, SCO's revised and supplemental responses to IBM's First Set
of Interrogatories are made to the best of SCO's present knowledge,
information and belief. As such, SCO reserves the right to further
supplement or amend its answers as discovery or further investigation
may reveal.
SPECIFIC OBJECTIONS AND REVISED
RESPONSES TO INTERROGATORIES
INTERROGATORY NO. 1:
Please identify, with specificity (by product, file and line of
code, where appropriate) all of the alleged trade secrets and any
confidential or proprietary information that plaintiff alleges or
contends IBM misappropriated or misused, including but not limited to
as alleged in ¶ 105 of the Complaint.
SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 1:
In addition to the General Objections set forth in Plaintiff's
Responses, SCO notes that it still has not received responsive
discovery from IBM that would allow it to fully answer this
2
question because part of this information is peculiarly within the
knowledge of IBM. Subject to and without waiving these objections,
Plaintiff supplements and revises its response to this Interrogatory
No. 1 and states that the information IBM (and separately,
Sequent) agreed to maintain as confidential or proprietary for SCO
and/or trade secrets includes, without limitation, UNIX software design
methods for creation and modification of software based on UNIX System
V, including those developed in AIX and Dynix. These UNIX methods
include ways to modify IBM's version of UNIX known as AIX and Sequent's
version of UNIX known as Dynix/ptx. The UNIX methods include those
inherent in and learned through access to the System V source code
licensed to IBM and/or Sequent and those developed by IBM and/or
Sequent in creating derivative works and modifications based on UNIX
System V pursuant to licensing agreements with SCO's predecessors and
SCO and those that IBM and/or Sequent agreed to maintain in confidence
for SCO's predecessors and SCO, in addition to UnixWare code and
methods provided to IBM separately. Without limitation, the
methods include technical UNIX categories, such as multiprocessor
locking and unlocking methods, methods for avoiding locking
requirements, methods for implementing filing systems, de-bugging
methods, methods for implementing and improving processor scalability,
methods for implementing and improving processor reliability, methods
for implementing and improving processor accessibility, methods for
implementing and improving scheduling systems, methods for implementing
and improving memory management, methods for implementing and improving
threading and multi-threading, and methods for implementing and
improving general system functionality based on UNIX
technology. Source code files identified by SCO thus far
which are responsive to Interrogatory No. 1 and part of which include
information (including methods) that IBM was required to maintain as
confidential or proprietary pursuant to
3
contract with SCO and/or which constitute trade secrets misused by
IBM are found within Linux 2.4 and/or Linux 2.5 kernels under the
following source file headings1:
arch.i386.kernel.i8259.c
arch.i386.kernel.timers.timer_tsc.c
arch.i386.mach-default.topology.c
arch.i386.mach-pc9800.topology.c
arch.i386.mm.discontig.c
arch.ia64.kernel.perfmon.c
arch.ppc64.kernel.htab.c
arch.ppc64.kernel.ioctl32.c
arch.ppc64.kernel.iSeries_irq.c
arch.ppc64.kernel.iSeries_setup.c
arch.ppc64.kernel.ppc_ksyms.c
arch.ppc64.kernel.prom.c
arch.ppc64.kernel.pSeries_htab.c
arch.ppc64.kernel.setup.c
arch.ppc64.kernel.signal32.c
arch.ppc64.kernel.smp.c
arch.ppc64.kernel.sys_ppc32.c
arch.ppc64.kernel.time.c
arch.ppc64.kernel.xics.c
arch.ppc64.mm.init.c
arch.ppc64.mm.numa.c
arch.ppc.platforms.4xx.oak_setup.c
arch.ppc.platforms.4xx.sycamore.c
arch.ppc.platforms.4xx.walnut.c
arch.ppc.platforms.ev64260_setup.c
arch.ppc.platforms.pmac_pic.c
arch.ppc.platforms.sandpoint_setup.c
arch.ppc.syslib.prom_init.c
arch.s390.kernel.compat_linux.c
arch.s390.kernel.compat_signal.c
arch.x86_64.kernel.e820.c
arch.x86_64.kernel.traps.c
4
fs.cifs.cifssmb.c
fs.compat.c
fs.jfs.acl.c
fs.jfs.endian24.h
fs.jfs.file.c
fs.jfs.inode.c
fs.jfs.jfs_acl.h
fs.jfs.jfs_btree.h
fs.jfs.jfs_debug.c
fs.jfs.jfs_debug.h
fs.jfs.jfs_defragfs.h
fs.jfs.jfs_dinode.h
fs.jfs.jfs_dmap.c
fs.jfs.jfs_dmap.h
fs.jfs.jfs_dtree.c
fs.jfs.jfs_dtree.h
fs.jfs.jfs_extent.c
fs.jfs.jfs_extent.h
fs.jfs.jfs_filsys.h
fs.jfs.jfs_imap.c
fs.jfs.jfs_imap.h
fs.jfs.jfs_incore.h
fs.jfs.jfs_inode.c
fs.jfs.jfs_inode.h
fs.jfs.jfs_lock.h
fs.jfs.jfs_logmgr.c
fs.jfs.jfs_logmgr.h
fs.jfs.jfs_metapage.c
fs.jfs.jfs_metapage.h
fs.jfs.jfs_mount.c
fs.jfs.jfs_superblock.h
fs.jfs.jfs_txnmgr.c
fs.jfs.jfs_txnmgr.h
fs.jfs.jfs_types.h
fs.jfs.jfs_umount.c
fs.jfs.jfs_unicode.c
fs.jfs.jfs_unicode.h
fs.jfs.jfs_uniupr.c
fs.jfs.jfs_xattr.h
fs.jfs.jfs_xtree.c
fs.jfs.jfs_xtree.h
5
fs.jfs.namei.c
fs.jfs.resize.c
fs.jfs.super.c
fs.jfs.xattr.c
include.asm-i386.mach-numaq.mach_mpparse.h
include.asm-i386.mach-summit.mach_mpparse.h
include.asm-i386.mmzone.h
include.asm-i386.mpspec.h
include.asm-ppc64.mmu.h
include.asm-ppc64.mmzone.h
include.asm-ppc64.paca.h
include.asm-ppc64.ppcdebug,h
include.asm-s390.thread_info.h
include.linux.ibmtr.h
include.linux.rcupdate.h
ipc.util.h
kernel.compat.c
kernel.pid.c
kernel.rcupdate.c
arch.i386.kernel.dmi_scan.c
arch.i386.kernel.mca.c
arch.i386.kernel.setup.c
arch.i386.kernel.traps.c
arch.s390.kernel.process.c
arch.s390.kernel.ptrace.c
arch.s390.kernel.setup.c
arch.s390.kernel.signal.c
arch.s390.kernel.smp.c
arch.s390.kernel.sys_s390.c
arch.s390.kernel.time.c
arch.s390.kernel.traps.c
arch.s390.1ib.delay.c
arch.s390.mm.fault.c
arch.s390.mm.init.c
fs.namei.c
include.asm-s390.atomic.h
include.asm-s390.bitops.h
include.asm-s390.1owcore.h
include.asm-s390.sigp.h
include.asm-s390.smp.h
ipc.util.c
kernel.module.c
6
SCO does not contend that the entire source code in all files
identified above contains proprietary and confidential information
and/or trade secrets. Rather, information (including code and methods)
that IBM agreed to maintain as confidential is interspersed through
parts of each identified file. Discovery is required to identify the
ways and extent to which IBM improperly used confidential and
proprietary information and/or trade secrets in creating the source
code that is contained in each of the above files. In addition, source
code files identified by SCO thus far which may be further responsive
to Interrogatory No. 1 and which may, on information and belief,
include information (including methods) that IBM was required to
maintain as confidential or proprietary pursuant to contract with SCO
and/or which constitute trade secrets misused by IBM are found within
Linux 2.4 and/or Linux 2.5 kernels under the following source file
headings:
arch.arm.mach-arc.small_page.c
arch.arm.mach-integrator.cpu.c
arch.cris.kernel.irq.c
arch.cris.kernel.process.c
arch.cris.kernel.ptrace.c
arch.cris.kernel.setup.c
arch.cris.kernel.signal.c
arch.cris.kernel.sys_cris.c
arch.cris.mm.init.c
arch.h8300.kernel.process.c
arch.h8300.kernel.ptrace.c
arch.h8300.kernel.sys_h8300.c
arch.i386.kernel.acpi.boot.c
arch.i386.kernel.acpi.sleep.c
arch.i386.kernel.apic.c
arch.i386.kernel.cpu.common.c
arch.i386.kernel.cpu.cpufreq.gx-suspmod.c
arch.i386.kernel.cpu.cpufreq.p4-clockmod.c
arch.i386.kernel.cpu.intel.c
arch.i386.kernel.cpu.mcheck.k7.c
7
arch.i386.kernel.cpu.mcheck.mce.c
arch.i386.kernel.cpu.mcheck.non-fatal.c
arch.i386.kernel.cpu.mcheck.p4.c
arch.i386.kernel.cpu.mcheck.p5.c
arch.i386.kernel.cpu.mcheck.p6.c
arch.i386.kernel.cpu.mtrr.main.c
arch.i386.kernel.cpu.proc.c
arch.i386.kernel.mpparse.c
arch.i386.kernel.nmi.c
arch.i386.kernel.reboot.c
arch.i386.kernel.smpboot.c
arch.i386.kernel.sysenter.c
arch.i386.kernel.timers.timer_pit.c
arch.i386.mach-default.setup.c
arch.i386.mach-pc9800.setup.c
arch.i386.mach-visws.rnpparse.c
arch.i386.mach-visws.reboot.c
arch.i386.mach-visws.setup.c
arch.i386.mach-visws.traps.c
arch.i386.mach-voyager.voyager_basic.c
arch.i386.mach-voyager.voyager_cat.c
arch.i386.mach-voyager.voyager_smp.c
arch.i386.mm.pgtable.c
arch.i386.oprofile.nmi_int.c
arch.i386.oprofile.op_model_p4.c
arch.i386.pci.common.c
arch.i386.pci.numa.c
arch.i386.pci.irq.c
arch.ia64.ia32.ia32_ldt.c
arch.ia64.ia32.ia32_signal.c
arch.ia64.ia32.sys_ia32.c
arch.ia64.kernel.acpi.c
arch.ia64.kernel.efivars.c
arch.ia64.kernel.ia64_ksyms.c
arch.ia64.kernel.iosapic.c
arch.ia64.kernel.irq.c
arch.ia64.kernel.irq_ia64.c
arch.ia64.kernel.mca.c
arch.ia64.kernel.palinfo.c
8
arch.ia64.kernel.process.c
arch.ia64.kernel.sal.c
arch.ia64.kernel.setup.c
arch.ia64.kernel.signal.c
arch.ia64.kernel.smpboot.c
arch.ia64.kernel.smp.c
arch.ia64.kernel.sys_ia64.c
arch.ia64.kernel.time.c
arch. ia64.kernel.unwind.c
arch.ia64.mm.numa.c
arch.ia64.mm.tlb.c
arch.ia64.pci.pci.c
arch.ia64.sn.io.alienlist.c
arch.ia64.sn.io.sgi_io_init.c
arch.ia64.sn.io.sn1.huberror.c
arch.ia64.sn.io.sn1.ml_SN_intr.c
arch.ia64.sn.io.sn2.bte_error.c
arch.ia64.sn.io.sn2.geo_op.c
arch.ia64.sn.io.sn2.ml_SN_intr.c
arch.ia64.sn.io.sn2.sgi_io_init.c
arch.ia64.sn.io.sn2.shub.c
arch.ia64.sn.io.sn2.shuberror.c
arch.ia64.sn.io.sn2.shubio.c
arch.ia64.sn.kernel.llsc4.c
arch.ia64.sn.kernel.mca.c
arch.ia64.sn.kernel.sn1.error.c
arch.ia64.sn.kernel.sn1.sn1_smp.c
arch.ia64.sn.kernel.sn1.synergy.c
arch.ia64.sn.kernel.sn2.sn2_smp.c
arch.m68knommu.kernel.process.c
arch.m68knommu.kernel.ptrace.c
arch.m68knommu.kernel.sys_m68k.c
arch.mips64.kernel.proc.c
arch.mips64.kernel.ptrace.c
arch.mips64.kernel.signal32.c
arch.mips64.kernel.signal.c
arch.mips64.kernel.smp.c
arch.mips64.kernel.syscall.c
arch.mips64.kernel.traps.c
9
arch.mips64.kernel.unaligned.c
arch.mips64.math-emu.cp1emu.c
arch.mips64.mips-boards.generic.printf.c
arch.mips64.mm.fault.c
arch.rnips64.mm.umap.c
arch.mips64.sgi-ip22.ip22-int.c
arch.mips64.sgi-ip27.ip27-init.c
arch.mips64.sgi-ip27.ip27-irq.c
arch.mips64.sgi-ip27.ip27-klnuma.c
arch.mips64.sgi-ip27.ip27-memory.c
arch.mips64.sgi-ip27.ip27-nmi.c
arch.mips64.sgi-ip27.ip27-reset.c
arch.mips64.sgi-ip27.ip27-setup.c
arch.mips.kernel.old-irq.c
arch.mips.kernel.smp.c
arch.mips.math-emu.cp1emu.c
arch.mips.mips-boards.generic.printf.c
arch.ppc64.kernel.idle.c
arch.ppc64.kernel.irq.c
arch.ppc64.kernel.open_pic.c
arch.ppc64.kernel.process.c
arch.ppc64.kernel.ptrace32.c
arch.ppc64.kernel.ptrace.c
arch.ppc64.kernel.semaphore.c
arch.ppc64.kernel.signal.c
arch.ppc64.kernel.syscalls.c
arch.ppc64.kernel.XmPciLpEvent.c
arch.ppc64.xmon.xmon.c
arch.ppc.kernel.semaphore.c
arch.ppc.kernel.temp.c
arch.ppc.mm.4xx_mmu.c
arch.ppc.mm.cachemap.c
arch.ppc.mm.mmu_context.c
arch.ppc.mm.tlb.c
arch.ppc.platforms.4xx.ibmnp4051.c
arch.ppc.platforms.chrp_smp.c
arch.ppc.platforms.gemini_setup.c
arch.ppc.platforms.mcpn765_setup.c
arch.ppc.platforms.mvme5100_setup.c
10
arch.ppc.platforrns.pmac_feature.c
arch.ppc.platforms.pmac_setup.c
arch.ppc.platforms.pmac_smp.c
arch.ppc.syslib.gt64260_common.c
arch.ppc.syslib.open_pic.c
arch.ppc.syslib.ppc4xx_setup.c
arch.ppc.syslib.prom.c
arch.sh.kernel.irq.c
arch.sh.kernel.pci_st40.c
arch.sh.kernel.ptrace.c
arch.sh.kernel.setup.c
arch.sh.kernel.sh_ksyms.c
arch.sh.kernel.signal.c
arch.sh.kernel.sys_sh.c
arch.sh.kernel.time.c
arch.sh.kernel.traps.c
arch.sh.mm.fault.c
arch.sh.mm.init.c
arch.um.kernel.irq.c
arch.um.kernel.ksyms.c
arch.um.kernel.smp.c
arch.um.kernel.tt.process_kern.c
arch.um.kernel.tt.tracer.c
arch.um.kernel.um_arch.c
arch.um.kernel.user_util.c
arch.um.sys-i386.sysrq.c
arch.um.sys-ppc.sysrq.c
arch.v850.kernel.irq.c
arch.v850.kernel.process.c
arch.v850.kernel.signal.c
arch.v850.kernel.syscalls.c
arch.x86_64.ia32.ia32_ioctl.c
arch.x86_64.ia32.ia32_signal.c
arch.x86_64.ia32.sys_ia32.c
arch.x86_64.kernel.acpi.boot.c
arch.x86_64.kernel.acpi.c
arch.x86_64.kernel.apic.c
arch.x86_64.kernel.bluesmoke.c
arch.x86_64.kernel.cpuid.c
11
arch.x86_64.kernel.head64.c
arch.x86_64.kernel.i8259.c
arch.x86_64.kernel.io_apic.c
arch.x86_64.kernel.ioport.c
arch.x86_64.kernel.irq.c
arch.x86_64.kernel.ldt.c
arch.x86_64.kernel.mpparse.c
arch.x86_64.kernel.msr.c
arch.x86_64.kernel.nmi.c
arch.x86_64.kernel.process.c
arch.x86_64.kernel.ptrace.c
arch.x86_64.kernel.reboot.c
arch.x86_64.kernel.setup64.c
arch.x86_64.kernel.setup.c
arcb.x86_64.kernel.signal.c
arch.x86_64.kernel.smpboot.c
arch.x86_64.kernel.smp.c
arch.x86_64.kernel.sys_x86_64.c
arch.x86_64.kernel.time.c
arch.x86_64.kernel.x8664_ksyms.c
arch.x86_64.1ib.delay.c
arch.x86_64.mm.fault.c
arch.x86_64.mm.init.c
arch.x86_64.mm.k8topology.c
arch.x86_64.mm.numa.c
arch.x86_64.pci.common.c
arch.x86_64.pci.irq.c
fs.autofs4.root.c
fs.devfs.base.c
fs.hugetlbfs.inode.c
fs.intermezzo.intermezzo_fs.h
fs.jbd.journal.c
fs.jfs.symlink.c
fs.mbcache.c
fs.nfsd.nfs4xdr.c
fs.ntfs.ntfs.h
fs.proc.proc_misc.c
fs.ramfs.inode.c
fs.reiserfs.do balan.c
12
fs.reiserfs.fix_node.c
fs.xfs.support.spin.h
include.asm-arm.thread_info.h
include.asm-arm.arch-clps711x.memory.h
include.asm-arm.arch-sa1100.memory.h
include.asm-cris.delay.h
include.asm-cris.hardirq.h
include.asm-cris.pgtable.h
include.asm-cris.semaphore-helper.h
include.asm-cris.smp_lock.h
include.asm-cris.timex.h
include.asm-generic.percpu.h
include.asm-generic.tlb.h
include.asm-h8300.hardirq.h
include.asm-h8300.semaphore-helper.h
include.asm-h8300.spinlock.h
include.asm-i386.hw_irq.h
include.asm-i386.io_apic.h
include.asm-i386.mach-default.do_timer.h
include.asm-i386.mach-default.entry_arch.h
include. asm-i386.mach-default.irq_vectors.h
include.asm-i386.mach-numaq.mach_apic.h
include.asm-i386.mach-pc9800.do_timer.h
include.asm-i386.mach-pc9800.irq_vectors.h
include.asm-i386.mach-visws.do_timer.h
include.asm-i386.mach-visws.entry_arch.h
include.asm-i386.mach-visws.irq_vectors.h
include.asm-i386.thread_info.h
include.asm-i386.tlbflush.h
include.asm-ia64.acpi.h
include.asm-ia64.hw_irq.h
include.asm-ia64.mmzone.h
include.asm-ia64.nodedata.h
include.asm-ia64.numa.h
include.asm-ia64.smp.h
include.asm-ia64.sn.leds.h
include.asm-ia64.sn.nodepda.h
include.asm-ia64.sn.pda.h
include.asm-ia64.sn.sn_cpuid.h
13
include.asm-ia64.sn.types.h
include.asm-ia64.spinlock.h
include.asm-ia64.system.h
include.asm-ia64.topology.h
include.asm-m68knommu.atomic.h
include.asm-m68knommu.hardirq.h
include.asm-m68knommu.semaphore-helper.h
include.asm-mips64.hardirq.h
include.asm-mips64.mmzone.h
include.asm-mips64.processor.h
include.asm-mips64.semaphore-helper.h
include.asm-mips64.sgiarcs.h
include.asm-mips64.sn.sn0.arch.h
include.asm-mips64.sn.types.h
include.asm-mips64.spinlock.h
include.asm-mips64.timex.h
include.asm-ppc64.memory.h
include.asm-ppc64.pgtable.h
include.asm-ppc64.smp.h
include.asm-ppc.cacheflush.h
include.asm-ppc.gt64260.h
include.asm-ppc.pmac_feature.h
include.asm-s390.tlbflush.h
include.asm-sh.hardirq.h
include.asm-sh.pgtable.h
include.asm-sh.semaphore-helper.h
include.asm-sh.semaphore.h
include.asm-sh.spinlock.h
include.asm-sh.system.h
include.asm-v850.atomic.h
inciude.asm-v850.hardirq.h
include.asm-v850.percpu.h
include.asm-x86_64.e820,h
include.asm-x86_64.fixmap.h
include.asm-x86_64.hw_irq.h
include.asm-x86_64.io_apic.h
include.asm-x86_64.irq.h
include.asm-x86_64.mmzone.h
include.asm-x86_64.mpspec.h
14
include.asm-x86_64.semaphore.h
include.asm-x86_64.smp.h
include.asm-x86_64.spinlock.h
include.asm-x86_64.system.h
include.asm-x86_64.thread_info.h
include.asm-x86_64.tlbflush.h
include.linux.jbd.h
include.linux.mmzoneh
include.linux.netfilter_ipv4.lockhelp.h
include.linux.percpu_counter.h
include.linux.ppp_channel.h
include.linux.reiserfs_fs.h
include.linux.seqlock.h
include.linux.threads.h
include.linux.vermagic.h
include.net.atmclip.h
kernel.cpu.c
kernel.cpufreq.c
kernel.pm.c
kernel.posix-timers.c
kernel.suspend.c
kernel.timer.c
lib.idr.c
mm.page-writeback.c
net.atm.clip.c
net.atm.pppoatm.c
netbridge.br_if.c
net.bridge.br_private.h
net.bridge.netfilter.ebtables.c
net.decnet.dn_fib.c
net.decnet.dn_route.c
net.ipv4.netfilter.ipchains_core.c
net.ipv4.netfilter.ip_conntrack_proto_icmp.c
net.ipv4.netfilter.ip_tables.c
net.ipv4.netfilter.ipt_limit.c
net.ipv6.netfilter.ip6_tables.c
net.ipv6.netfilter.ip6t_limit.c
net.sched.sch_ingress.c
15
arch.arm.kernel.irq.c
arch.arm.kernel.ptrace.c
arch.arm.kernel.signal.c
arch.arm.kernel.time.c
arch.arm.mm.init.c
arch.i386.kernel.apm.c
arch.i386.kernel.cpuid.c
arch.i386.kernel.i386_ksyms.c
arch.i386.kernel.io_apic.c
arch.i386.kernel.ioport.c
arch.i386.kernel.irq.c
arch.i386.kernel.ldtc
arch.i386.kernel.msr.c
arch.i386.kernel.process.c
arch.i386.kernel.ptrace.c
arch.i386.kernel.signal.c
arch.i386.kernel.smp.c
arch.i386.kernel.sys_i386.c
arch.i386.kernel.time.c
arch.i386.kernel.vm86.c
arch.i386.1ib.delay.c
arch.i386.mm.fault.c
arch.i386.mm.init.c
arch.m68k.kernel.process.c
arch.m68k.kernel.ptrace.c
arch.m68k.kernel.sys_m68k.c
arch.mips.kernel.ipc.c
arch.mips.kernel.irixioctl.c
arch.mips.kernel.irixsig.c
arch.mips.kernel.irq.c
arch.mips.kernel.ptrace.c
arch.mips.kernel.signal.c
arch.mips.kernel.syscall.c
arch.mips.kernel.sysirix.c
arch.mips.kernel.sysmips.c
arch.mips.kernel.time.c
arch.mips.kernel.traps.c
arch.mips.kernel.unaligned.c
arch.mips.mm.fault.c
16
arch.mips.mm.umap.c
arch.mips.sgi.kernel.indy_int.c
arch.mips.sni.io.c
arch.ppc.kernel.idle.c
arch.ppc.kernel.irq.c
arch.ppc.kernel.ppc_ksyms.c
arch.ppc.kernel.ppc-stub.c
arch.ppc.kernel.process.c
arch.ppc.kernel.ptrace.c
arch.ppc.kernel.setup.c
arch.ppc.kernel.signal.c
arch.ppc.kernel.smp.c
arch.ppc.kernel.syscalls.c
arch.ppc.kernel.time.c
arch.ppc.lib.locks.c
arch.ppc.mm.init.c
arch.ppc.xmon.xmon.c
arch.s390.kernel.s390_ksyms.c
fs.binfmt_elf.c
fs.buffer.c
fs.dcache.c
fs.dquot.c
fs.inode.c
fs.lockd.svc.c
fs.ncpfs.ioctl.c
fs.nfsd.nfssvc.c
fs.proc.array.c
fs.proc.base.c
include.asm-arm.atomic.h
include.asm-arm.smp.h
include.asm-arm.spinlock.h
include.asm-arm.system.h
include.asm-i386.bugs.h
include.asm-i386.desc.h
include.asm-i386.fixmap.h
include.asm-i386.semaphore.h
include.asm-i386.smp.h
include.asm-i386.spinlock.h
include.asm-i386.system.h
17
include.asm-i386.timex.h
include.asm-m68k.atomic.h
include.asm-m68k.semaphore-helper.h
include.asm-m68k.spinlock.h
include.asm-mips.atomic.h
include.asm-mips.bitops.h
include.asm-mips.hardirq.h
include.asm-mips.semaphore.h
include.asm-mips.semaphore-helper.h
include.asm-mips.sgiarcs.h
include.asm-mips.spinlock.h
include.asm-mips.system.h
include.asm-mips.timex.h
include.asm-ppc.bitops.h
include.asm-ppc.hardirq.h
mclude.asm-ppc.mmu_context.h
include.asm-ppc.pgtable.h
include.asm-ppc.smp.h
include.asm-ppc.timex.h
include.linux.fs.h
include.linux.genhd.h
include.linux.interrupt.h
include.linux.kernel_stat.h
include.linux.list.h
include.linux.sched.h
include.linux.smp.h
include.linux.spinlock.h
include.linux.timer.h
include.linux.wanpipe.h
include.linux.wanrouter.h
include.net.sock.h
init.main.c
ipc.sem.c
ipc.shm.c
kernel.acct.c
kernel.exit.c
kernel.itimer.c
kernel.panic.c
kernel.printk.c
18
kernel.sched.c
kernel.signal.c
kernel.sys.c
kernel.time.c
mm.filemap.c
mm.memory.c
mm.mprotect.c
mm.slab.c
mm.swap_state.c
mm.vmalloc.c
net.core.neighbour.c
net.ipv4.devinet.c
net.ipv4.icmp.c
net.ipv4.ip_fragment.c
net.ipv4.route.c
net.ipv4.tcp_ipv4.c
net.ipv6.reassembly.c
net.ipv6.tcp_ipv6.c
net.irda.af_irda.c
net.irda.irqueue.c
net.netlink.af_netlink.c
net.sched.cls_api.c
net.sched.sch_api.c
net.socket.c
net.sunrpc.sched.c
net.sunrpc.svcsock.c
netunix.af_unix.c
net.x25.af x25.c
Again, plaintiff does not contend that all of the source code
contained in all of the identified files constitutes information that
IBM was required to maintain as confidential or proprietary and/or
constitutes trade secrets. Plaintiff contends that information IBM
should have kept confidential was or may have been improperly used or
incorporated in the above files. Plaintiff needs to complete discovery
of IBM to determine with particularity the specific ways in which the
above-
19
referenced files were created by IBM and its agents, contractors and
partners, the methods used in creating such files, and the relationship
of such methods to UNIX technology protected under confidentiality
agreement with SCO. SCO will therefore provide additional
supplements to this interrogatory answer as discovery progresses.
INTERROGATORY NO. 2:
For each alleged trade secret of any confidential or proprietary
information identified in response to interrogatory No. 1, please
identify: (a) all persons who have or have had rights to the alleged
trade secret or confidential or proprietary information; (b) the nature
and source of the rights; and (c) all efforts by any person to maintain
the secrecy or confidentiality of the alleged trade secrets and any
confidential or proprietary information.
SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 2:
In addition to the General Objections set forth in Plaintiff's
Responses, SCO notes that it still has not received responsive
discovery from IBM that would allow it to fully answer this question
because part of this information is peculiarly within the knowledge of
IBM. Subject to and without waiving these objections, Plaintiff
supplements its response to this Interrogatory No.2 and states that
persons who have or have had rights to the information that IBM was
required to maintain as confidential or proprietary and/or constitutes
trade secrets, as contained in the above source files, include IBM and
Sequent and their respective employees, contractors and agents and some
customers. SCO required that such information be maintained in
confidence pursuant to the Software Agreements and Sublicensing
Agreements with IBM and Sequent, together with related agreements.
INTERROGATORY NO. 3:
20
For each alleged trade secret and any confidential or proprietary
information identified in response to Interrogatory No. 1, please
identify all persons to whom the alleged trade secret or confidential
or proprietary information is known or has been disclosed and describe,
in detail, the circumstances under which it became known or was
disclosed, including but not limited to: (a) the date on which the
alleged trade secret or confidential or proprietary information was
disclosed or became known to such persons; (b) the specific terms on
which the information was disclosed or became known, such as pursuant
to a confidentiality agreement; (c) all documents or agreements
relating to the disclosure; and (d) all places or locations where the
alleged trade secret or confidential or proprietary information may be
found or accessed,
SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 3:
In addition to the General Objections set forth in Plaintiff's
Responses, SCO notes that discovery is in preliminary stages and it has
not yet received responsive discovery from IBM that would allow it to
fully answer this question because part of this information is
peculiarly within the knowledge of IBM. Subject to and without waiving
these objections, Plaintiff supplements its response to this
Interrogatory No. 3 and states that because IBM posted the protected
materials publicly, including in the Linux 2.4 kernel and above, it is
impossible to identify all persons to whom the protected materials have
been disclosed. Nonetheless, in addition to the information provided in
SCO's revised and supplemental response to Interrogatory No. 2,
employees of SCO and its predecessors have had access to part of the
trade secrets, confidential and/or proprietary information. This would
include but not be limited to engineers, persons who were involved in
Project Gemini and persons who were involved in Project Monterey, which
are more specifically identified in SCO's revised and supplemental
response to Interrogatory No. 10 served on IBM on
21
October 10, 2003. IBM and other personnel involved in Project
Monterey, who were not employees of SCO or its predecessors, also would
have had access to part of the trade secrets, confidential and/or
proprietary information.
Despite IBM's failure to provide the necessary discovery, SCO is
currently aware of the following persons at IBM in which part of the
confidential or proprietary and/or trade secrets was known or had been
disclosed:
IBM - US Authors
Steve French (email)
Janet Morgan (email) or (email)
Badari Pulavarty (email)
David C. Hansen (email)
jshah@(email)
Greg Kroah-Hartman (email)
Takayoshi Kochi (email)
Burt Silverman (email)
Kent Yoder (email) or (email)
Mike Sullivan (email)
Burt Silverman (email)
Janice Girouard (email)
Alan Altmark (email)
Xenia Tkatschow (email)
Paul B. Schroeder (email)
Mike Anderson (email)
Patrick Mansfield (email)
Rick Lindsley (email)
David L Stevens (email)
Jon Grimm (email)
Sridhar Samudrala (email)
Daisy Chang (email)
Mingqin Liu (email)
Matthew Dobson (email)
Pat Gaughen (email)
John Stultz (email)
Ganesh Venkitachalam
Bishop Brock (email)
Paul McKenney (email)
Mingming Cao (email)
22
IBM - German Authors
Holger Smolinski (email)
Volker Sameske (email)
Cornelia Huck (email)
Martin Schwidefsky (email)
Arnd Bergmann (email)
Ingo Adlung (email)(email)
Utz Bacher (email)
Carsten Otte (email)
Michael Holzheu (email)
Tuan Ngo-Anh (email)
Martin Peschke (email)
Fritz Elfert (email)
Horst Hummel (email)
buendgen@(email)
Frank Pavlic (email)
Jochen Rohrig (email)
Dieter Wellerdiek (email)
Jochen Roehrig (email)
Stefan Hegewald (email)
Hartmut Penner (email)
Denis Joseph Barrow (email, email)
Ulrich Weigand (email)
Despina Papadopoulou (email)
Gerhard Tonn (email)
IBM - Australian Authors
Paul Mackerras (email), IBM
Anton Blanchard (email), IBM
IBM - Other
Ken Aaker (email)
Steve Kipisz, (email) or
Normunds Saumanis (email)
Masoodur Rahman (email)
(bash@email)
(uri@email)
Dirk Husemann (email)
Jon Grimm (email)
Dipankar Sarma (email)
Dirk Husemann (email)
Alfredo (email)
Yudong Yang (email)
Yi Ge (email)
23
Todd Inglett
Dave Engebretsen
(email)
IBM - Austin Office (JFS)
Steve Best
Dave Kleikamp (email)
Barry Arndt
IBM - Corporation Copyrights (May be some repetition from above)
Stephen Rothwell, IBM Corporation
Irene Zubarev, IBM Corporation
Tong Yu, IBM Corporation
Jyoti Shah, IBM Corporation
Chuck Cole, IBM Corporation
Mike Sullivan, IBM Corporation
Dan Morrison, IBM Corporation (email)
Fritz Elfert (email)
Keith Mitchell, IBM Corporation (email)
Matthew Dobson, IBM Corporation
Mike Corrigan IBM Corporation
Allan H Trautman, IBM Corporation
Kyle A. Lucke IBM Corporation
Troy D. Armstrong IBM Corporation
Dave Boutcher IBM Corporation
(Wayne G. Holm IBM Corporation)br>
Rusty Russell (email) IBM Corporation
Patricia Gaughen, IBM Corporation
Paul Dorwin, IBM Corporation
Dave Engebretsen IBM Corporation
Todd Inglett, IBM Corporation
Stephen Rothwell, IBM Corporation
The following persons likely have knowledge, although their names do
not appear in the Linux code base. Upon receipt of discovery from IBM,
SCO will be better able to definitively state whether these individuals
have the requisite knowledge
Bill Abt (email) or (email)
Bill Hartner (email)
David F Barrera (email)
Helen Pang (email)
Hollis Blanchard (email)
Hubertus Franke (email)
24
Hanna Linder (email)
James Cleverdon (email)
(khoa@email)
Kevin Cony (email)
Krishna Kumar (email)
Mala Anand (email)
(mike@email)
Suparna Bhattacharya (email)
Shailabh Nagar (email)
Shirley Ma (email)
Stephanie Glass (email)
Vamsi Krishna S. (email)
Wes (wsb@email)
Alex Q Chen (email)
Andreas Herrmann (email)
Andrew Theurer (email)
(aprasad@email)
Amos Waterland (email)
Ben Rafanello (email)
(bsuparna@email)
Bruce Allan (email)
Carl D. Speare (email)
Dave McCracken (email)
(DRHAGER@email)
Douglas M Freimuth (email)
Duc Vianney (email)
Elizabeth Holland Kern (email)
(fubar@email)
Gerrit Huizenga (email)
Heiko Carstens (email)
Jeff Martin (email) also (email)
Jeff Renicker (email)
James Manning (email)
Janet Morgan (email)
Jim Sibley (email)
Joerg Pommnitz (email)
Juan Gomez (email) also (email)
Keith Mitchell
Larry Kessler (email)
Maneesh Soni (email)
Matt (email)
Martin J. Bligh (email)
Mark Peloquin (email)
Melvin Smith (email)
Michael Holzheu (email)
25
Michael Hohnbaum (email)
Mike Kravetz (email)
Mike Spreitzer (email)
Michael W Wortman (email)
Niels Christiansen (email)
Niki Rahimi (email)
Nivedita Singhvi (email) also (email)
(pcg@email)
Peter Wong (email)
Wai Yee
Richard J Moore (email)
Finally, Plaintiff cannot know the extent of all such disclosures
because they were made by virtue of IBM's improper contributions into
Linux. At such time as IBM responds to SCO's discovery requests with
respect to source code and identifies those persons to whom IBM has
delivered source code, SCO will be better able to supplement this
response, if needed
INTERROGATORY NO. 4:
For each alleged trade secret and any confidential or proprietary
information identified in response to Interrogatory No. 1, please
describe, in detail, each instance in which plaintiff alleges or
contends that IBM misappropriated or misused the alleged trade secret
or confidential or proprietary information, including but not limited
to: (a) the date of the alleged misuse or misappropriation; (b) all
persons involved in any way in the alleged misuse or misappropriation;
(c) the specific manner in which IBM is alleged to have engaged in
misuse or misappropriation; and (d) with respect to any code or method
plaintiff alleges or contends that IBM misappropriated or misused, the
location of each portion of such code or method in any product, such as
AIX, in Linux, in open source, or in the public domain.
26
SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 4:
In addition to the General Objections set forth in Plaintiff's
Responses, SCO notes that discovery is in its preliminary stages and it
has not yet received responsive discovery from IBM that would allow it
to fully answer this question because part of this information is
peculiarly within the knowledge of IBM, and or its agents, partners,
contractors and others, including Linus Torvalds and/or the Open Source
Development Laboratory ("OSDL"). Subject to and without waiving these
objections, Plaintiff supplements its response to this Interrogatory
No.4 and states that IBM misappropriated and misused the trade secrets
and/or confidential and proprietary information of Plaintiff each time
it made contributions to Linux of source code or methods based on,
derived from or developed in UNIX System V, AIX and/or Dynix. Plaintiff
does not have specific dates, persons contributing or the manner in
which contributions were made and will not have this information until
IBM produces such information. At this time, however, the persons
identified in the revised and supplemental response to Interrogatory
No. 3 likely would have been involved in the public dissemination of
this confidential material.
IBM additionally misappropriated and misused the trade secrets
and/or confidential and proprietary information of Plaintiff through
Project Monterey. Many of those involved are listed in the relevant
category on the list of witnesses provided to IBM by SCO in its
supplemental and revised response to Interrogatory No. 10 served on
October 10, 2003. The roles those individuals and others played and the
manner and dates of their involvement will be determined once IBM
provides the necessary information in discovery.
INTERROGATORY NO. 5:
27
For each alleged trade secret and any confidential or proprietary
information identified in response to Interrogatory No. l, please
identify: (a) all agreements relating to the alleged trade secret or
confidential or proprietary information including but not limited to
the parties to and the terms of the agreements; and (b) all copyrights
and patents relating to the alleged trade secret or confidential or
proprietary information including but not limited to the owners,
licensors, licensees, assignors or assignees of those copyrights or
patents.
SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 5:
In addition to the General Objections set forth in Plaintiff's
Responses, Plaintiff supplements its response to this Interrogatory
No.5 by reference to response to Interrogatories No. 2 and 3.
Additionally, reference is also made to all agreements between IBM and
Sequent and Plaintiff or its predecessors. Additionally, pursuant to
Rule 33(d), copyrights to UNIX System V and UnixWare and related
copyrights will be produced by Plaintiff in the ordinary course of the
rolling production under the pending First Request for Production of
Documents propounded by IBM to Plaintiff. Additionally, copyrights
related to the confidential and proprietary information and/or trade
secret information identified in Interrogatory No. 1 are in the
possession of IBM and Sequent, in that the authority of IBM and Sequent
to obtain copyrights in AIX, Dynix and other software products that are
based on, or are modifications of UNIX System V, was constrained by the
scope of license granted by Plaintiff.
INTERROGATORY NO. 6:
For each line of source or object code and each method identified in
response to Interrogatory No. 1, please identify: (a) the origin
of the code or method, including when, where
28
and by whom the code or method was created; and (b) all products in
which, in whole or in part, the code or method is included or on which,
in whole or in part, the code or method is based.
SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 6:
In addition to the General Objections set forth in Plaintiff's
Responses, SCO notes that discovery is in preliminary stages and SCO
has not yet received responsive discovery from IBM that would allow it
to fully answer this question because part of this information is
peculiarly within the knowledge of IBM, such as the modifications and
derivative works created by IBM that were to be treated as the original
Software Product as that term is defined in the Software Agreement or
Sublicensing Agreement. Subject to and without waiving these
objections, Plaintiff supplements its response to this Interrogatory
No. 6 and states that the origin of the code and/or method identified
in response to Interrogatory No. 1 above is one of UNIX System V,
UnixWare, AIX, Dynix or related code or code developed therein or
modifications thereof.
INTERROGATORY NO. 7:
Please describe, in detail, each instance in which plaintiff alleges
that IBM engaged in unfair competition, including but not limited to:
(a) the dates on which IBM allegedly engaged in any unfair competition;
(b) all persons involved in the alleged unfair competition; and (c) the
specific manner in which IBM is alleged to have engaged in unfair
competition including but not limited to as alleged in ¶ 118 of the
Complaint.
SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 7:
In addition to the General Objections set forth in Plaintiff's
Responses, SCO notes that discovery is in preliminary stages and SCO
has not yet received responsive discovery from IBM
29
that would allow it to fully answer this question because part of
this information is peculiarly within the knowledge of IBM. Subject to
and without waiving these objections, Plaintiff supplements its
response to this Interrogatory No. 7 and states that:
Plaintiff wrongfully and with the intent of improperly competing
with and influencing competition in the market for UNIX software on
Intel-based processors induced Plaintiff to postpone final steps of
development and marketing of 32-bit UNIX software for Intel processors.
This was done at a time when Plaintiff held dominant market power for
UNIX-based software on Intel processors. IBM made and continued to make
investments in development of Linux, and secretly advanced and promoted
development of Linux without disclosing such activities to SCO, during
and at a time when IBM was under a duty to deal fairly with and
disclose such competing activities to SCO pursuant to its contractual
obligations to SCO under Project Monterey and otherwise.
In addition, IBM, through Karen Smith and others has induced or
attempted to induce others in the software industry, including but not
limited to Hewlett Packard and Intel, from doing business with SCO from
and after the LinuxWorld trade show held during January 2003.
In addition, IBM has unfairly competed with SCO by acts that
include, but are not limited to, improper use of the Software Products
and modifications and derivative works of the Software Products in a
manner exceeding the scope of the license. Such acts include, but are
not limited to, contributions of the modifications and derivative works
to Linus Torvalds and/or others in the open source community.
In addition, IBM has unfairly competed with SCO by acts that
include, but are not limited to, entering a conspiracy and combination
in restraint of trade with others in the Linux development and
distribution business, pursuant to the GPL, to artificially restrain
prices below
30
natural levels for the purposes of destroying competition in the
operating systems market for UNIX software on Intel machines, and to
improperly gain advantage and extract profits from customers through
inducing customers to unnecessarily switch operating systems from UNIX
to Linux, without any technological benefit for customers, solely to
gain additional services work for IBM and license middleware to
customers in lieu of operating system software. In other words, Linux
adds no technology advantage to customers --its only advantage is that it
is purportedly "free" for customers. If Linux is not distributed at a
zero price point, customers will not switch to Linux and therefore will
not purchase related IBM services or middleware. By artificially
restraining the price of Linux to zero, which price is very
substantially below the actual development cost contributed by IBM and
others, IBM induces customers to switch to Linux. This is, among other
things, unfair competition.
INTERROGATORY NO. 8:
Please identify all agreements with which plaintiff alleges IBM
interfered and describe, in detail, each instance in which plaintiff
alleges or contends that IBM interfered with those agreements,
including but not limited to: (a) the date of the alleged interference;
(b) all persons involved in the alleged interference; (c) the specific
manner in which IBM is alleged to have interfered with the agreement;
(d) the specific actions, if any, that IBM induced or encouraged
plaintiff's customers or licensees to take; (e) the specific action, if
any, that plaintiff's customer or licensee took as a result of the
actions allegedly induced or encouraged by IBM; and (f) the specific
trade secret or confidential or proprietary information, if any,
involved in the alleged interference.
31
SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 8:
In addition to the General Objections set forth in Plaintiff's
Responses, SCO notes that discovery is in preliminary stages and SCO
has not yet received responsive discovery from IBM that would allow it
to fully answer this question because part of this information is
peculiarly within the knowledge of IBM. Subject to and without waiving
these objections, Plaintiff supplements and revises its response to
this Interrogatory No. 8 and states, on information and belief, at
various times from 2000 to the present, IBM has induced or attempted to
induce breach of agreements between SCO and some of its customers by
assisting and/or performing services in switch from UnixWare to Linux
that involved or would involve breach of SCO's software agreements
through improper use of shared libraries for use on Linux of various
applications designed for UnixWare. Customers that IBM has contacted
for such improper purposes include Sherwin Williams, Auto Zone, Target,
Krogers, Advanced Auto, Shaw's Supermarkets, State of Maine (Department
of Labor), Eckerds, and Safeway.
In addition, IBM, through Karen Smith and Daniel Frye and possibly
others, approached certain of SCO's partners during LinuxWorld in
January 2003 to induce such partners to stop doing business with SCO,
including Hewlett Packard, Intel and Computer Associates. SCO's own
investigation into this matter is continuing, and additional
information will be provided as it becomes available, including upon
receiving such information from IBM.
32
DATED this 23rd day of October, 2003.
As to Objections:
By:
Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
Brent O. Hatch
Mark F. James
HATCH. JAMES & DODGE
As to Responses:
Christopher S. Sontag
Sr. Vice President
Operating Systems Division
The SCO Group, Inc.
STATE OF UTAH )
County of Utah____)
The above signed Christopher S. Sontag, being duly sworn upon oath,
deposes and says that he has read the above responses to discovery
requests and that the responses contained therein are true to the best
of his knowledge, information and belief.
Notary Public
(Seal)
33
Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE, P.C.
[address, phone, fax]
Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]
Attorneys for Plaintiff The SCO Group, Inc.
____________________________
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL
DIVISION
___________________________
THE SCO GROUP, INC.
a Delaware corporation,
Plaintiff,
vs.
INTERNATIONAL BUSINESS MACHINES CORPORATION,
a New York corporation,
Defendant.
_______________________________
CERTIFICATE OF SERVICE OF PLAINTIFF'S SUPPLEMENTAL RESPONSES TO
DEFENDANT'S FIRST SET OF INTERROGATORIES
Case No. 2:03cv0294DAK
Honorable Dale A. Kimball
Magistrate Brooke C. Wells
_________________________________
I hereby certify that the foregoing PLAINTIFF'S SUPPLEMENTAL
RESPONSES TO DEFENDANT'S FIRST SET OF INTERROGATORIES was served by
Hand Delivery or by
34
depositing a copy of same in the United States mail, first class,
postage prepaid, this 23rd day of October, 2003 to the following:
By Hand Delivery:
Alan L. Sullivan, Esq.
Snell & Wilmer L.L.P.
[address]
By U.S. Mail:
Evan R. Chesler, Esq.
Cravath, Swaine & Moore LLP
[address]
Donald J. Rosenberg, Esq.
[address]
By:
Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE
1 Please note that the "flattened" file listings
identified below use
periods (.) instead of slashes (/) to define sub-directories.
Therefore, a listing such as net.socket.c translates into net/socket.c
wherever the source for Linux resides. Note also that the last ".c" or
".h" is not replaced by a slash.
35
|