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More Filings in IBM, Red Hat and Novell
Friday, March 23 2007 @ 12:50 PM EDT

A few more filings in SCO v. IBM, most significantly SCO's Redacted Memorandum in Support of its Motion for Reconsideration of the Order Denying SCO's Motion for Relief for IBM's Spoliation of Evidence and there are exhibits [PDF] attached to a lawyer's declaration, Redacted Declaration of Mark James [PDF], including the following:
  • Transcript of the Motion Hearing January 18, 2007 before Magistrate Judge Wells (Leitzinger protective order hearing and the spoliation motion hearing, where she denied SCO's Motion)
  • Interview: Irwin Lee Williams III, March 12, 2002, located at
    http://kerneltrap.org/comment/reply/80
  • February 6, 2004 Hearing Transcript Excerpts (re AIX/Dynix discovery)
  • [sealed] September 22, 2006 Deposition Transcript Excerpts of Marc Rochkind
  • [sealed] Email from Randy Swanber dated April 8, 2003, bearing Bates number 181019724, and marked as Deposition Exhibit 682
  • [sealed]November 18, 2005 Deposition Transcript Excerpts of Daniel D. Frye
  • [sealed] December 2, 2005 Deposition Transcript Excerpts of Paul E. McKenney
  • [sealed] Email from gone@linux.ibm.com dated November 13, 2001, bearing Bates number 181524791-93, and marked as Deposition Exhibit 435
  • Consulting Times, Inside IBM - Dan Frye and the Linux Technology Center, located at www.consultingtimes.com/articles/ibm/frye/fryeinterview.html

You actually have to go here to get the Consulting Times article. And there are some additional filings in Red Hat and Novell as well. The filing mistake in Novell is now corrected, the judge signed the stipulated order [PDF] based on SCO's admission, finally, that Utah's "Yarro's Law" is indeed the one it is relying on, so SCO's complaint is amended to reflect that fact, so keep that in mind when you read that filing. That means that Novell's Motion for a More Definite Statement of SCO's Unfair Competition Cause of Action is mooted.

And Red Hat has filed its periodic letter to the judge in Delaware.

Here are the filings in SCO v. IBM:

1008 - Filed & Entered: 03/21/2007
Modification of Docket
Docket Text: Modification of Docket: Docket entry #998, SCO's Sealed Reply Memorandum was entered by the clerk in the wrong case. Correction: Clerk has modified the docket text and entered this filing in SCO v. Novell, 2:04cv139, as docket #251, re [998] Sealed Document. (blk)

1009 - Filed & Entered: 03/21/2007
Redacted Document
Docket Text: REDACTION to [990] Sealed Document, SCO's Memorandum in Support of Its Motion for Reconsideration of the Order Denying SCO's Motion for Relief for IBM's Spoliation of Evidence by Plaintiff SCO Group. (Boruchow, Sashi)

1010 - Filed & Entered: 03/21/2007
Redacted Document
Docket Text: REDACTION to [996] Sealed Document Declaration of Mark James Regarding SCO's Motion for Reconsideration of the Order Denying SCO's Motion for Relief for IBM's Spoliation of Evidence by Plaintiff SCO Group. (Attachments: # (1) Exhibit 1-9)(Boruchow, Sashi)

And here's the Novell Pacer filing:

252 - Filed & Entered: 03/22/2007
Order on Motion to Amend/Correct
Docket Text: ORDER on [250] Motion to Amend/Correct Second Amended Complaint. It is hereby ordered that Plaintiff and Counterclaim-Defendant SCO's Second Amended Complaint is deemed amended to reflect that SCO's Fifth Claim for Relief arises out of Utah statutory and/or common law and Defendant and Counterclaim-Plaintiff Novell's Motion for a More Definite Statement of SCO's Unfair Competition Cause of Action is mooted. Signed by Judge Dale A. Kimball on 3/21/07. (blk)

Finally, here's the Pacer notation in Red Hat:

66 - Filed & Entered: 03/21/2007
Letter
Docket Text: Letter to The Honorable Sue L. Robinson from Josy W. Ingersoll regarding quarterly status report. (Ingersoll, Josy)

  


More Filings in IBM, Red Hat and Novell | 333 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Off topic here
Authored by: idahoan on Friday, March 23 2007 @ 12:58 PM EDT
Post in html mode for clickez :)

[ Reply to This | # ]

Corrections here please
Authored by: Acrow Nimh on Friday, March 23 2007 @ 01:05 PM EDT
...Some context would be nice too..

---
Any horticultural action not involving a chainsaw isn't gardening...

[ Reply to This | # ]

One of the docs
Authored by: Anonymous on Friday, March 23 2007 @ 02:32 PM EDT
[Interview: Irwin Lee Williams III, March 12, 2002, located at
http://kerneltrap.org/comment/reply/80

I've used Linux as a userland programming environment since 1996, and my first
computing experience was on the Purdue ECN lab systems in 1993, which consisted
of a number of Visual Graphics X-19 terminals and Sun IPC's used as terminals
for a Sequent S-81. Before 2000 I had no involvement whatsoever with kernel
programming. By and large Solaris was my primary programming environment before
2000 (of course back then I had nothing to do with its or any kernel), though
there was a little IRIX in there, too.

rwh: How long have you been with IBM? How has Linux' position with IBM changed
over time?

wli: I've worked for IBM since April of 2000. When I started, I worked for
Sequent, which was being absorbed into IBM. IBM is a very large company, so at
different sites, there are different areas of specialty and focus. I can't
pretend to be very knowledgable regarding the scope or history of IBM's business
plans, but at least for me, the progression was from DYNIX/ptx to AIX and then
to Linux, while learning progressively more about systems programming.

For a while, there was not much focus on-site for Linux, but at some point a
decision was made that that would be our site's focus, and this seems to be
working out well.]

That interview has about as much relevance to this case as all the other Caldera
evidence.

[ Reply to This | # ]

SCO's Motion for Reconsideration of Spoliation
Authored by: Ian Al on Friday, March 23 2007 @ 04:06 PM EDT
I applied the 'So What?' filter, but there was nothing left to discuss. Instead, I have tried to pull out some parts in isolation and tried to make them stand up in their own right. It doesn't help.

and that evidence should be reconsidered now that SCO has shown that the destroyed evidence was not available elsewhere.

Everything that they come up with 'now' was available to them for argument at the original motion. AFAIK it is too late to introduce argument that they failed to introduce during the original motion practice, let alone additional expert reports after the expert report deadline. Apart from this, they have not shown that the 'destroyed evidence' was not available elsewhere.

In summary, CMVC and RCS simply would not and could not contain the evidence that would have been available on IBM Linux programmer sandboxes or other private computer work spaces.

Quite right, but the Linux programmers cited (who did not contribute anything to the Linux kernal which is the claim in this case) were asked to clear the Dynix/ptx sandboxes (which IBM agree did exist) and not Linux sandboxes (which IBM say were not used. RCS (as far as I know) would indicate the programmers that took copies of the Dynix/ptx (most of which is IBM's own invention and property). So IBM spoliated nothing.

Magistrate Judge Wells said at aural argument

ask IBM, in the spirit of cooperation, Mr. Shaughhnessy, to do what you can [to identify the deleted information]. That doesn't mean that anything is going to change in terms of the deadlines and the scheduling order cutoffs.

In response to this, SCO concluded

IBM's inaction in this regard speaks volumes about the very representations that were so central to the Magistrate Court's conclusions.

How does something requested 'in the spirit of cooperation' become 'central to the conclusions'? Further, if IBM offered to show SCOX experts (not SCOX, themselves, of course) how they could find out from RCV what was deleted then the 'experts' would have maintained (as they did in their untimely declarations) that, in their expert opinion, that was impossible.

Like Mr. Irwin, each of these programmers would likely have used sandboxes, or similar workspaces, in developing Linux. These sandboxes or workspaces would have confirmed (had they not been purged) whether these programmers maintained access to old ~Dynix/ptx code (as their emails and other comments suggest they did) and which parts of Dynix/ptx code (as their emails and other comments suggested they did) and which parts of Dynix/ptx they retained. The sandboxes also would have contained the drafts of these programmers' code disclosures to Linux, from which copying could more directly be proven.

The programmers were licenced to retain access to old Dynix/ptx code. There were no Linux sandboxes. IBM did not ask for Linux sandboxes or work areas to be purged. If the programmers modified code for the Linux kernal (they made no contributions to the Linux kernal. There is no evidence that they did) then the original and modified code would have been in the Linux work areas and would not have been deleted owing to IBM's instructions.

I won't deal with IBM's 'lack of good faith' as the assertions fall apart quicker than they can be addressed.

I'm beginning to see why PJ wonders about sanctions. Most of the assertions are specious. The document provides the contrary arguments, often in the same paragraph and the argument they make against themselves is stronger than those for. Of course, if you look at the 'experts' reports you find that the 'evidence' upon which they rely must be true because the experts can't believe it can be otherwise. The experts' reports come after the deadlines and after their previous untimely reports have been turned back by two different judges. Is that repeat offenders or serial offenders? They seem to be in contempt of the court. I've heard of that having serious consequences.

---
Regards
Ian Al

[ Reply to This | # ]

Sandbox argument in 1009
Authored by: Wardo on Friday, March 23 2007 @ 05:31 PM EDT
Reading 1009 got me thinking about what SCO isn't saying. I know it's more of
the same observations Groklaw posters have made before, but here goes. They are
ranting about how IBM code made it into Linux. They don't seem to have many
claims left that allege UNIX code went from UNIX -> AIX or DYNIX ->
Linux.

For the sake of argument, lets say the IBM Linux programmers used sandboxes for
their Linux programming. (A sandbox by any other name would still be a
development environment separate from the running OS...) I kinda think that
they would have, beyond the interview of the programmer mentioning it, and the
expert reports.

Even if they deleted the DYNIX and AIX code from their sandboxes, they were not
instructed to delete the Linux code from said sandboxes. Because if they did,
all the Linux work they were assigned to would have been lost. (Provided of
course they didn't check in everything and then checkout stuff once the purge
was complete.)

Second, even if they did, why didn't SCO request some of these machines for
forensic examination? Moments after discovering the incriminating email, my
first thought would be to get each and every one of those machines into a
forensic exam, looking for anything. Add them to discovery for the sake of
completeness.

Thirdly, I fully expect SCOs claim of "we control the derivative work"
to fall flat on it's face. That makes this whole argument about proving AIX and
DYNIX code was placed into Linux moot, unless that code was UNIX code to begin
with. (And not included elsewhere like BSD or OS/2).

Do these points undermine SCO's argument well enough? Is strawman the correct
term for this, since the argument would only prove AIX/DYNIX -> Linux, and
still leave the all important first part out of the equation...

Wardo

---
Wardo = new user();
Wardo.lawyer = FALSE;
Wardo.badTypist = TRUE; //don't bother to point out tyops
Wardo.badSpeller = TRUE; //or spelling misteaks

[ Reply to This | # ]

motion vs transcript (attachment)
Authored by: gvc on Saturday, March 24 2007 @ 01:56 AM EDT
In SCO's motion for reconsideration they are whining that they can't find the
modifications that the programmers made in the sandboxes, and that a chain of
these modifications could have led from AIX/Dynix to something unrecognizable
and that deleting the sandboxes erased the evidence of the transformation.

Their analogy is that you can't prove a repainted stolen car is yours unless you
can find the paint shop. Dumb analogy.

But the transcript (which is attachment A) of their oral argument simply says
over and over and over and over that they need to know what parts of AIX/Dynix
to which the programmers *had access*

I was shocked -- shocked, I tell you -- to see SCO changing its argument.

[ Reply to This | # ]

When Attack Is The Best Form Of Defense
Authored by: sproggit on Saturday, March 24 2007 @ 07:51 AM EDT
Team, with the greatest of respect to all preceding posts, I wonder if we're
making a repeat mistake here.

So The SCO Group are going to try yet another end run, yet another twisting of
the facts, yet another distortion of the truth. There may be several reasons for
this.

Firstly, if they can manage to convince the Court that there really are material
facts at dispute, then some of this material has to go to trial. I'd be
exaggerating if I said that I thought TSG/BSF really _wanted_ to be at trial;
right now I think they just want to string this out for as long as possible and
make life as uncomfortable as possible for IBM.

Secondly, there's the peanut gallery and, perhaps, a PIPE Fairy or so to
continue to please. So if they are working on the "there's no smoke without
fire" theory, then making smoke might convince the sheeple that there's
something to these claims, after all.


But these are too obvious.

So here's a question for the legal beagles out there. What does US law say about
the ability for shareholders or debtors having the right to sue directors of a
company for gross negligence? Or, more to the point, what would an individual
and former director of a company, who has been accused of gross negligence,
mis-management, mis-representation, etc, have to do to prove that they were
working in what they thought were the best interests of the company and that
company's shareholders?

This may be a moot point. I can't see anyone other than the Yarro's and
McBride's of this world continuing to hold stock at this point [thought it would
be interesting to find out who still does].

I just have this wild hunch that this is now a self-preservation strategy, and
not a win-at-all-costs strategy.



Related thought concerning BSF, The SCO Group's lawyers. Unless we're all wildly
wrong about the facts of this case, they must by now realise that they don't
really have anything much in the way of evidence to go on. If anything else were
true, they would put their cards on the table.

So at what point would someone like David Boies turn around to his client and
say, "I think this might just be a nuscience law suit. I don't see the
evidence; I don't see the validity of your claims." ?

Surely that moment has passed by now. Which leaves me wondering, ever so
slightly, about the integrity of such a high profile law firm. I wonder what
this case is going to do to their reputation?

[ Reply to This | # ]

searching for sco 507 compatible skunkware
Authored by: groklawdranem on Sunday, March 25 2007 @ 08:32 PM EDT
since sco has taken down their ISOs of skunkware; and I have misplaced my true
blue copy
can any one help me locate a 2000 or 98 version of sco' skunkware?
I thought I had my own copy .... but with all my disk shuffling lately I cannot
locate it

thanks for all you can do

I have search hi & low for a mirror but no luck so far

[ Reply to This | # ]

Why is checking out AIX or Dynix code to a sandbox evidence?
Authored by: devil's advocate on Sunday, March 25 2007 @ 09:18 PM EDT

If a Linux programmer had a checked out copy of Dynix/Ptx in his/her sandbox in what way is that evidence of wrongdoing?

  1. If there were any worthwhile alterations to that code, they would have been commited to the CMVC system and preserved.
  2. If it was used as a copy and paste source for Linux code, the similarity would show up in the Linux code, or at least in CMVC.
  3. IBM actually did the right thing to direct programmers to erase copies of AIX and Dynix from their sandboxes. According to SCO they could not refer to that material while developing for Linux. They could have done that anyway, sandboxes or no.

SCO and its experts have not shown as they contend that the evidence is not contained in the CMVC system. They have only speculated that evidence may have existed on the machines themselves, but it is hard to see what that "evidence" could have been.

[ Reply to This | # ]
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