decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


Contact PJ

Click here to email PJ. You won't find me on Facebook Donate Paypal


User Functions

Username:

Password:

Don't have an account yet? Sign up as a New User

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
A Groucho Marx Imitation in SCO v. IBM & SCO's Memo in Support of Objections to Order on Spoliation
Thursday, May 03 2007 @ 03:01 AM EDT

Some more filings in SCO v. IBM including one that has to be our winner for best Marx Brothers imitation. And as you know, there is heavy competition for that crown. But I do think we have the victorious entry. It's SCO who is requesting more time to respond to an IBM filing, to which IBM has agreed, and SCO phrases its stipulated request like this:
The parties, through their counsel of record, hereby stipulate and jointly move the Court for an Order enlarging the deadline for SCO to file its sur-surreply to IBM's Sur-Reply Memorandum in Further Opposition to SCO's Objections to the Magistrate Judge's Order on IBM's Motion to Confine and SCO's Motion to Amend its December 2005 Submission, on or before May 11, 2007.

Top that, Groucho!

Of course, as a reader reminds me, Groucho had a sanity clause, whereas -- dare I say it? -- with SCO, there ain't no sanity clause. Not that IBM isn't kicking itself now for not thinking of having a sanity clause inserted in its contract back in 1985. Well, you live and learn.

Surely these sur-sur-replies (how often does one need two hyphens in one word?) to sur-reply memoranda are at least in spirit harmonious with the famous contract scene in A Night at the Opera:

Driftwood: All right. It says the, uh, "The first part of the party of the first part shall be known in this contract as the first part of the party of the first part shall be known in this contract" - look, why should we quarrel about a thing like this? We'll take it right out, eh?

Fiorello: Yeah, it's a too long, anyhow. (They both tear off the tops of their contracts.) Now, what do we got left?

Driftwood: Well, I got about a foot and a half. Now, it says, uh, "The party of the second part shall be known in this contract as the party of the second part."

Fiorello: Well, I don't know about that...

Driftwood: Now what's the matter?

Fiorello: I no like-a the second party, either.

Driftwood: Well, you should've come to the first party. We didn't get home 'til around four in the morning... I was blind for three days!

Fiorello: Hey, look, why can'ta the first part of the second party be the second part of the first party? Then a you gotta something.

Driftwood: Well, look, uh, rather than go through all that again, what do you say?

Fiorello: Fine. (They rip out a portion of the contract.)

Driftwood: Now, uh, now I've got something you're bound to like. You'll be crazy about it.

Fiorello: No, I don't like it.

Driftwood: You don't like what?

Fiorello: Whatever it is. I don't like it.

Driftwood: Well, don't let's break up an old friendship over a thing like that. Ready?...

Fiorello: OK! (Another part is torn off.) Now the next part, I don't think you're gonna like.

Driftwood: Well, your word's good enough for me. (They rip out another part.) Now then, is my word good enough for you?

Fiorello: I should say not.

Driftwood: Well, that takes out two more clauses. (They rip out two more parts.) Now, "The party of the eighth part..."

Fiorello: No, that'sa no good. (more ripping.) No.

Driftwood: "The party of the ninth part..."

Fiorello: No, that'sa no good, too. (they rip the contracts again until there's practically nothing left.) Hey, how is it my contract is skinnier than yours?

Driftwood: Well, I don't know. You must've been out on a tear last night. But anyhow we're all set now, aren't we?

Fiorello: Oh sure.

Driftwood (offering his pen to sign the contract): Now just, uh, just you put your name right down there and then the deal is, uh, legal.

Fiorello: I forgot to tell you. I can't write.

Driftwood: Well, that's all right, there's no ink in the pen anyhow. But listen, it's a contract, isn't it?

Fiorello: Oh sure.

Driftwood: We got a contract...

Fiorello: You bet.

Driftwood: No matter how small it is...

Fiorello: Hey, wait, wait. What does this say here? This thing here.

Driftwood: Oh, that? Oh, that's the usual clause. That's in every contract. That just says uh, it says uh, "If any of the parties participating in this contract is shown not to be in their right mind, the entire agreement is automatically nullified."

Fiorello: Well, I don't know...

Driftwood: It's all right, that's, that's in every contract. That's, that's what they call a 'sanity clause'.

Fiorello: Ha ha ha ha ha! You can't fool me! There ain't no Sanity Clause!

I think SCO is up to about the party of the eighth part in its quest to overturn all of Judge Wells' recent decisions. All joking aside, SCO is fighting for its litigious life, and maybe the lawyers are fighting to avoid sanctions too. Who knows? You'll remember IBM's scathing Sur-Reply with the attached "Copyright Principles", the one that began by accusing SCO, saying that "SCO’s reply papers distort Judge Wells’ order, misstate IBM’s position and mischaracterize the applicable law and evidence." That is the one SCO would like more time to answer.

There are more filings -- two IBM motions seeking to file two overlong memoranda in opposition to another attempt by SCO to overturn another Wells decision, the spoliation one. IBM has filed both as sealed documents. These are about SCO's attempt to pin IBM with a charge of spoliation of evidence, something the court has already ruled IBM didn't do. But you know SCO. If at first you don't succeed, file lotsa motions asking the court to start all over again.

At first glance, Docket entry 1039 and 1040 appear to be identical. However, if you read them, you'll notice that first IBM asked to file 31 pages of legal argument in opposition to SCO's Motion for Reconsideration of the Order Denying SCO's Motion for Relief for IBM's Alleged Spoliation of Evidence, and after that it filed again, only this time it asks for only 16 pages of legal argument, and this is the Memorandum in Opposition to SCO's Objections to the Magistrate Judge's Order Denying SCO's Motion for Relief for IBM's Alleged Spoliation of Evidence. Whew. Just figuring out where they are in the stream of filings takes an hour to be sure you've got the right SCO motion on your desk in front of you. Part of the problem is that SCO filed two motions regarding the same order, one asking the judge to reconsider, and the other objecting to the order. And in the motion requesting more time, it got complex because SCO asked for alternative relief, and then we went into overtime, with sur-replies. So the names of the filings just get longer and longer. Like Pinocchio's nose.

Whatever made me think of that?

Even the clerk seems to have given up. Usually the clerk puts a number notation showing what a memo in opposition is opposing. Not here. But I believe 986 is SCO's motion for reconsideration, with 1009 SCO's redacted memorandum in support of its motion for reconsideration. 987 is SCO's Objections to that same Wells order, and 1002 SCO's memorandum in support of its objections. See what I mean about the party of the 8th part? If I got it wrong, don't sue me, please.

Here are the Docket entries:

1039 - Filed & Entered: 04/27/2007
Terminated: 04/30/2007
Motion for Leave to File Excess Pages
Docket Text: MOTION for Leave to File Excess Pages for Memorandum in Opposition to SCO's Motion for Reconsideration of the Order Denying SCO's Motion for Relief for IBM's Alleged Spoliation of Evidence filed by Defendant International Business Machines Corporation, Counter Claimant International Business Machines Corporation. (Attachments: # (1) Text of Proposed Order) Motions referred to Brooke C. Wells.(Sorenson, Amy)

1040 - Filed & Entered: 04/27/2007
Terminated: 04/30/2007
Motion for Leave to File Excess Pages
Docket Text: MOTION for Leave to File Excess Pages on Memorandum in Opposition to SCO's Objections to the Magistrate Judge's Order Denying SCO's Motion for Relief for IBM's Alleged Spoliation of Evidence filed by Defendant International Business Machines Corporation, Counter Claimant International Business Machines Corporation. (Attachments: # (1) Text of Proposed Order) Motions referred to Brooke C. Wells.(Sorenson, Amy)

1041 - Filed & Entered: 04/30/2007
Order on Motion for Leave to File Excess Pages
Docket Text: ORDER granting [1039] Motion for Leave to File Excess Pages. Signed by Judge Dale A. Kimball on 4/30/07. (blk)

1042 - Filed & Entered: 04/30/2007
Order on Motion for Leave to File Excess Pages
Docket Text: ORDER granting [1040] Motion for Leave to File Excess Pages. Signed by Judge Dale A. Kimball on 4/30/07. (blk)

1043 - Filed: 04/27/2007
Entered: 04/30/2007
Sealed Document
Docket Text: **SEALED DOCUMENT** MEMORANDUM IN OPPOSITION re [986] MOTION FOR RECONSIDERATION BY THE MAGISTRATE COURT OF THE ORDER DENYING SCOS MOTION FOR RELIEF FROM IBMS SPOLIATION OF EVIDENCE filed by Defendant International Business Machines Corporation. Note: No document attached. This document will be retained in the Clerk's Office sealed room for viewing by authorized persons only. (blk)

1044 - Filed: 04/27/2007
Entered: 04/30/2007
Sealed Document
Docket Text: **SEALED DOCUMENT** MEMORANDUM IN OPPOSITION re [899] Objection to Magistrate Judge Decision to District Court filed by Defendant International Business Machines Corporation. Note: No document attached. This document will be retained in the Clerk's Office sealed room for viewing by authorized persons only. (blk)

1045 - Filed & Entered: 05/02/2007
Motion for Extension of Time to File Response/Reply
Docket Text: Stipulated MOTION for Extension of Time to File Response/Reply to IBM's Sur-Reply Memorandum in Further Opposition to SCO's Objections to the Magistrate Judge's Order on IBM's Motion to Confine and SCO's Motion to Amend its December 2005 Submission filed by Plaintiff SCO Group. (Attachments: # (1) Text of Proposed Order) Motions referred to Brooke C. Wells.(Normand, Edward)

And the beat goes on. Here, to help us all keep this straight, is SCO's Memorandum in Support of its Objections, as text, thanks to caecer. You can open two browsers and put it side by side with SCO's memorandum in support of its motion for reconsideration if you wish to see SCO in the fullness of its position. The latter is all about misapprehensions of law and fact SCO thinks Judge Wells made. SCO in that motion asks Magistrate Judge Wells to reconsider after hearing all the mistakes SCO thinks she made and change her mind as to the outcome. But at the same time, SCO also filed Objections, which would be up to the presiding judge, Judge Dale Kimball, whereby if Judge Wells doesn't change her mind, SCO asks him to change it for her. Who goes first will be up to them to sort out. SCO just files 'em. It's up to the rest of us to try to keep it all straight.

I find this document particularly illogical, because SCO argues, as best I can make out, that IBM employees deleted AIX and Dynix/ptx code from their sandboxes prior to beginning work on a Linux project, and that because they did that, valuable evidence was lost, so SCO should win, even though it has failed to provide any evidence of infringement.

The illogical part is that any AIX and Dynix code would have been taken from the code repositories, and on deletion by individuals who checked it out, that identical code which is stored in the repositories would still be there, intact. That's the thing about digitalization -- you can copy without depleting the original. SCO's argument? If there had been no deleting that code, SCO could have found out "whether that code had been retained on programmers' systems when they transitioned to work on Linux, or what particular subparts or versions of the operating system had been retained."

Does that make sense? SCO claims that they did delete it, so on what basis does SCO claim that in fact they retained some or all of it? What makes them think that they did? What evidence is there for this theoretical? And if they did, wouldn't it still be available? And if they didn't, what would be the problem, since there would be nothing improper retained. See how illogical? It wants IBM punished for not figuring out that SCO might reason like this. But without any evidence that anybody did retain code (and if they did, it should still be there), SCO creates only what I would call a theoretical alleged spoliation, because spoliation is about evidence, and where is there any proof that anything SCO is imagining ever actually happened? All of SCO's cases fail on that same illogical point.

And can you imagine what SCO would have done if IBM had had its employees retain AIX code on their computers while they worked on Linux? That'd be about the end of the world in sinfulness to SCO, I think. So IBM is in a no-win circumstance with SCO claiming they are evil no matter what they did. Kind of like trial by drowning in the Middle Ages, where suspected witches were tied up and thrown into a body of water. If they floated, they were guilty and killed. If they drowned, they were innocent.

As usual with SCO, it isn't possible to be positive if they don't understand how software is written or if they are pretending not to. But IBM has already told the court that the simple truth is that SCO hasn't accused any of the engineers who allegedly were told to delete code of donating any improper code to Linux. There is no code match to any of the guys, so what difference does it make what was on their computers? And IBM has told the court that nothing was deleted anyway. So what is all this about? You tell me, folks. Maybe SCO makes stuff up?

****************************************

Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[address]
[phone]
[fax]

Stuart H. Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Attorneys for The SCO Group, Inc.



IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

THE SCO GROUP, INC.

Plaintiff/Counterclaim-Defendant,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff.
SCO'S MEMORANDUM IN SUPPORT
OF ITS OBJECTIONS TO THE
MAGISTRATE COURT'S ORDER
DENYING SCO'S MOTION FOR
RELIEF FOR IBM'S SPOLIATION OF
EVIDENCE

FILED IN REDACTED FORM
[ORIGINALLY FILED UNDER SEAL]


Case No. 2:03CV0294DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells

Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[address]
[phone]
[fax]

Stuart H. Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Attorneys for The SCO Group, Inc.



IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

THE SCO GROUP, INC.

Plaintiff/Counterclaim-Defendant,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff.
SCO'S MEMORANDUM IN SUPPORT
OF ITS OBJECTIONS TO THE
MAGISTRATE COURT'S ORDER
DENYING SCO'S MOTION FOR
RELIEF FOR IBM'S SPOLIATION OF
EVIDENCE

FILED UNDER SEAL]


Case No. 2:03CV0294DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells

TABLE OF CONTENTS

Page
PRELIMINARY STATEMENT 1
BACKGROUND 1
STANDARD OF REVIEW 4
ARGUMENT 5
I. IBM INSTRUCTED LINUX PROGRAMMERS TO "PURGE" OR "DELETE" CODE FROM THEIR SANDBOXES, AND THESE INSTRUCTIONS WERE FOLLOWED. 5
II. THE EVIDENCE DESTROYED BY IBM IS NOT AVAILABLE THROUGH CHANGE CONTROL MANAGEMENT SYSTEMS, SUCH AS CMVC OR RCS. 8
III. SCO WAS PREJUDICED BY IBM'S DESTRUCTION OF EVIDENCE. 10
IV. IBM DESTROYED THE EVIDENCE IN BAD FAITH. 11
CONCLUSION 16

i

TABLE OF AUTHORITIES

Page
Cases
Adams v. Gateway, Inc.,
No. 2:02-CV-106 TS, 2006 WL 2563418 (D. Utah 2006)
13
Brown & Williamson Tobacco Corp. v. Jacobson,
644 F. Supp. 1240 (N.D. Ill. 1986)
14
Brown & Williamson Tobacco Corp. v. Jacobson,
827 F.2d 1119 (7th Cir. 1987)
14
Cabinetware, Inc. v. Sullivan,
No. Civ. S. 90-313, LKK 1991 WL 327959 (E.D. Cal. 1991)
11
Computer Associates Int'l, Inc. v. Am. Fundware, Inc.,
133 F.R.D. 166 (D. Colo. 1990)
13, 14
Harvey by Blankenbaker v. United Transp. Union
878 F.2d 1235 (10th Cir. 1989)
5
Hollern v. Wachovia Secs.,
Nos. 05-1253, 05-1300, 2006 WL 2361627 (10th Cir. Aug. 16, 2006)
4
In re Napster, Inc. Copyright Litig.,
462 F. Supp. 2d 1060 (N.D. Cal. 2006)
13

ii

Plaintiff, The SCO Group, Inc. ("SCO"), by and through undersigned counsel, respectfully submits this Memorandum in Support of its Objections to the Magistrate Court's Order Denying SCO's Motion for Relief for IBM's Spoliation of Evidence.

PRELIMINARY STATEMENT

On September 25, 2006, SCO filed its Motion for Relief for IBM's Spoliation of Evidence. In the Motion, SCO demonstrated that, shortly after SCO filed suit against IBM, IBM executives and lawyers directed multiple IBM Linux programmers to destroy source code on their computers that would have been highly relevant to SCO's claims. SCO's motion for relief from this spoliation was referred to the Magistrate Court in this Court's November 29, 2006 Order (at 4 n.2), heard on January 18, 2007 ("January Hearing") (Ex. 1), and denied by the Magistrate Court on March 2, 2007 ("March Order") (Ex. 2). The order of reference provided that the Court would apply a de novo standard of review if the Magistrate Court's decision was appealed. SCO respectfully submits that upon such review, the Magistrate Court's denial of this Motion should be reversed. SCO is contemporaneously filing a motion for reconsideration with the Magistrate Court, addressing misapprehensions of fact and law in the Magistrate Court's March Order.

BACKGROUND

In early April 2003, shortly after the filing of SCO's lawsuit, IBM cut off its Linux programmers' access to Dynix/ptx and AIX code1 and then directed numerous Linux

1

programmers to "purge" or "delete" source code from their "sandboxes" and personal computers. An April 8, 2003 email from an IBM executive stated:

REDACTED

(Ex. 3.) A "sandbox" is a private computer workspace in which programmers can draft and test source code they are developing without impacting the entire operating system.

The destruction of evidence from these sandboxes or computer workspaces has prejudiced SCO. The evidence destroyed in the purging of the sandboxes would have provided further support for SCO's claims or led to the discovery of additional relevant evidence. Namely, it would have demonstrated that IBM's Linux programmers possessed at their fingertips the very AIX and Dynix/ptx code IBM contends those programmers did not access or use in developing Linux, and it would have shown what specific parts of those operating systems the programmers chose to retain on their computers. This evidence is highly probative and should not have been destroyed. Therefore, SCO is entitled, at minimum, to an adverse inference from this destruction of evidence that began one month after the case was filed.

The facts and context of IBM's conduct shows that IBM destroyed this evidence in bad faith. In March 2003, SCO brought a significant lawsuit against IBM, which plainly contested IBM's use of UNIX-derived operating systems in developing Linux. Following that lawsuit, IBM promptly cut off its Linux programmers' access to those operating systems and instructed them to purge code from their sandboxes and computers. In discovery in this case, an IBM witness admitted that such an order had been received and acted upon. In response to SCO's

2

spoliation motion these same witnesses changed their testimony in an attempt to deny what is clear from the foregoing facts. This is not the innocent misunderstanding that IBM would now have this Court believe.

To remedy IBM's spoliation of this highly relevant evidence, SCO requested in its Motion that the Magistrate Court (1) enter an order precluding IBM from contesting that it relied on AIX and Dynix/ptx source code in making contributions to Linux development, and (2) imposing adverse-inference instruction against IBM. Both of SCO's requests are consistent with the common-sense and well-established principle that a party who has notice that evidence is relevant to litigation and who proceeds to knowingly destroy it is more likely to have been threatened by that evidence than a party in the same position who does not destroy the evidence.

IBM opposed SCO's motion on essentially four grounds: First, IBM contested that it ever gave a directive to destroy source code, and further contended that even if source code was deleted from programmers' sandboxes, it was available and had been produced elsewhere to SCO, so no evidence was actually destroyed. Second, IBM argued that, in light of the "fact" that no evidence was destroyed, SCO cannot show that IBM acted in bad faith. Third, IBM contended that SCO was not prejudiced because no evidence was destroyed and, even if it was destroyed, it was not relevant to any of SCO's claims. Fourth, and finally, IBM contended that SCO waived any relief for IBM's spoliation of evidence in an earlier stipulation regarding discovery issues. SCO refuted each of these arguments in its reply brief.

At the January hearing on SCO's motion, the Magistrate Court announced that the "motion regarding spoliation and the adverse inference instruction will be denied," and explained the following bases for that decision:

3

  • "The evidence before me, as put into context . . . cannot show that any evidence was lost or destroyed. In fact, I find that it is available and has been available through CMVC."
  • "The evidence before me, when seen in context, does not show that IBM acted in bad faith nor does the evidence show that [SCO] has been prejudiced because the evidence, as I indicated, has been and is reasonably available."

(Ex. 1 at 56:2-9.) In addition, the Magistrate Court asked IBM to assist SCO in locating the evidence IBM contended and the Court concluded was still available in CMVC. (Id. at 58:12- 14.) In the written March Order, the Magistrate Court formally denied SCO's motion "for the reasons set forth by the Court at the hearing held on January 18, 2007." (Ex. 2.)

The Magistrate Court's order should be overturned for the following reasons: First the Magistrate Court's finding that the destroyed evidence is available in CMVC is wrong, and could not possibly relate to a substantial portion of the evidence SCO contends was destroyed. Second, SCO was clearly prejudiced by the destruction of highly probative evidence. Third, bad faith can and should be inferred from the timing and nature of IBM's destruction.

STANDARD OF REVIEW

SCO's Motion for Relief for IBM's Spoliation of Evidence this spoliation was referred to the Magistrate Court in this Court's November 29, 2006 Order (at 4 n.2). The order of reference provided that the Court would apply a de novo standard of review if the Magistrate Court's decision was appealed. This appropriately reflects that a mixed question of law and fact, as involved in this motion, is reviewed de novo if it "involves the application of legal principles to undisputed facts," Hollern v. Wachovia Secs., Nos. 05-1253, 05-1300, 2006 WL 2361627, at *6

4

(10th Cir. Aug. 16, 2006) (Ex. A), or if the issue is "[w]hether the district court failed to consider or accord proper weight or significance to relevant evidence," Harvey by Blankenbaker v. United Transp. Union, 878 F.2d 1235, 1244 (10th Cir. 1989).

ARGUMENT

I. IBM INSTRUCTED LINUX PROGRAMMERS TO "PURGE" OR "DELETE" CODE FROM THEIR SANDBOXES, AND THESE INSTRUCTIONS WERE FOLLOWED.

After SCO filed its lawsuit, IBM management decided to remove access by its Linux Technology Center ("LTC") programmers to AIX and Dynix/ptx source code. This decision shows that IBM well understood that SCO was claiming that IBM had misused Unix-derived works, and the significance of that code to SCO's claims. Daniel Frye, the head of IBM's LTC, testified:

REDACTED

(Ex. 4 at 91.)

On April 8, 2003 — one month after SCO's lawsuit was filed and shortly after the decision to restrict access to AIX and Dynix/ptx source code had been made -- Randal Swanberg, a senior IBM executive, sent the following email to IBM managers and team leaders relaying additional instructions:

5

REDACTED

(Ex. 3 (emphasis added).) In this email, Mr. Swanberg was referring to a decision in a meeting of IBM's Open Source Steering Committee (OSSC), which is an IBM organization charged with oversight of IBM's contributions to open-source software such as Linux. The OSSC includes IBM executives and lawyers. (Rule 30(b)(6) Deposition of Mark Brown (Mar. 10, 2006) at 15-16 (Ex. 5).)

This OSSC decision described in the Swanberg email was then carried out more broadly within IBM. Daniel Frye instructed programmers within IBM's Linux Technology Center to "purge" or "delete" AIX and Dynix/ptx source code from their local machines and sandboxes. As suggested in the Swanberg email, this deletion instruction was given in addition to the newly-implemented decision to restrict programmers' access to that source code. Dan Frye testified:

REDACTED

6

REDACTED

(Ex. 4 at 92-93 (emphasis added).) In short, programmers within the LTC -- who were specifically assigned to work on Linux, who had previously had access to AIX and Dynix/ptx code, and who had had that access removed in response to the lawsuit -- were then further instructed to purge or delete all such code from their machines and to purge and delete the contents of their sandboxes. Those programmers were not programming for AIX or Dynix/ptx when they were told to delete that code -- they were specifically assigned by IBM to program for Linux.

IBM Linux programmer (and former Dynix/ptx programmer) Paul McKenney confirmed that he deleted Dynix/ptx source code from his machine in response to such in instruction. He testified:

REDACTED

7

REDACTED2

Furthermore, Mr. McKenney's admission that he is not aware of IBM backing up the code is directly contrary to the main thrust of IBM's opposition to this motion -- that the destroyed code was available from CMVC or RCS.

II. THE EVIDENCE DESTROYED BY IBM IS NOT AVAILABLE THROUGH CHANGE CONTROL MANAGEMENT SYSTEMS, SUCH AS CMVC OR RCS.

Notwithstanding this compelling proof that evidence was destroyed, the Magistrate Court concluded: "The evidence, as put into context . . . cannot show that any evidence was lost or destroyed. In fact, I find that it is available and has been available through CMVC." The Magistrate Court's conclusion that this evidence is available through CMVC is incorrect and should be overturned. SCO has also moved for reconsideration by the Magistrate Court on this point.

8

Neither CMVC (the AIX change control system referenced by the Magistrate Court) nor RCS (the Dynix/ptx change control system) contains the evidence SCO contends IBM destroyed.3 Even if all the code that was destroyed by purging Linux programmer sandboxes and workspaces could still be located somewhere in CMVC or RCS, that does not mean that no evidence was destroyed. The code that was in the sandboxes or workstations would have demonstrated that IBM'S Linux programmers, like Mr. McKenney, retained AIX or Dynix/ptx on their systems while programming for Linux (long after they ceased work on those operating systems). Further, the particular AIX or Dynix/ptx code that a Linux programmer chose to retain on his system while programming for Linux would have provided important proof in that SCO could compare that particular code to the programmers' Linux disclosures. While IBM has contended that a change management control system, such as CMVC or RCS, shows what code had been "checked out" by programmers (Ex. 1 at 46:7), CMVC and RCS could not possibly show whether that code had been retained on programmers' systems when they transitioned to work on Linux, or what particular subparts or versions of the operating system had been retained by the programmer. The fact that some code the programmer chose to retain on his system might be duplicated somewhere on a code repository entirely misses the point.

Accordingly, the Magistrate Court's conclusion that the destroyed code is available on CMVC (or even RCS) should be overturned.

9

III. SCO WAS PREJUDICED BY IBM'S DESTRUCTION OF EVIDENCE.

The Magistrate Court's decision that SCO was not prejudiced appears to have been largely based on the erroneous conclusion that the destroyed evidence was available on CMVC (or presumably, RCS, though that was not addressed). Without that finding, the Magistrate Court's conclusion regarding prejudice cannot stand. SCO therefore has also addressed this issue in detail in its Motion for Reconsideration before the Magistrate Court.

The evidence destroyed by IBM is probative to SCO's claims and its destruction prejudiced SCO. The presence of AIX and Dynix/ptx code in the sandboxes of programmers in IBM's LTC -- at their very fingertips -- would have further refuted IBM's ongoing assertion that its Linux programmers did not access or rely on Dynix/ptx and AIX source code when they were programming code for Linux. Moreover, the destroyed evidence would have enabled SCO to provide more specific identification of the AIX or Dynix/ptx code on which the programmers' Linux disclosures was based.

The prejudice to SCO from this destruction is particularly severe in light of the Magistrate Court's June 28, 2006 Order (affirmed on November 11, 2006, pending a motion for reconsideration). In its December 2005 Submission, SCO was able to identify numerous methods and concepts that IBM programmers disclosed to Linux in violation of its Dynix/ptx software license, but in many cases SCO was not able to identify the specific Dynix/ptx source code behind the methods and concepts. Those methods and concepts were stricken from SCO's case. However, the source code deleted from Linux programmer sandboxes would have substantially helped SCO identify the specific Dynix/ptx source code behind these methods and concepts.

10

The importance of the initial source code from which later drafts were developed, and the prejudice flowing from its destruction, was recognized in a similar case involving copyright infringement. In Cabinetware, Inc. v. Sullivan, No. Civ. S. 90-313 LKK 1991 WL 327959 (E.D. Cal. 1991) (Ex. B), the defendant destroyed source code after receiving a document request for such code. The magistrate judge found that "computer programs can be easily modified to disguise the copying of source codes and that a comparison of [the defendant's] initial source code with [the plaintiff's] source code is of critical importance in this case." Id. at *2. Therefore, the magistrate judge recommended that an adverse inference instruction be given. The district court agreed that the evidence that was destroyed was "essential to plaintiff's case" of copyright infringement, and entered a default judgment on the issue of liability against the defendant. Id. at *2, 4. As in the Cabinetware case, the code in IBM Linux programmers' sandboxes was important to SCO's case because computer programs can so "easily be modified to disguise the copying of source codes."

IV. IBM DESTROYED THE EVIDENCE IN BAD FAITH.

The Magistrate Court's finding that IBM did not act in bad faith appears to have been largely based on the erroneous conclusion that the destroyed evidence was available on CMVC (or RCS). Without that finding, the Magistrate Court's conclusion regarding bad faith cannot stand. This issue is also addressed in detail in SCO's motion for reconsideration before the Magistrate Court.

Bad faith can and should be inferred from the circumstances surrounding IBM's directive to purge programmer sandboxes or workspaces. As IBM became involved in Linux, IBM repeatedly and publicly boasted that its experience in and disclosures from AIX and Dynix/ptx

11

was the critical difference in evolving Linux from a hobbyist system to a commercially-hardening operating system. For example, in an interview with Linux Magazine about the state of the Linux kernel in 2001, IBM programmer Patricia Gaughen stated that Linux was "not

REDACTED

example, Dan Frye, the Director of the LTC, confirmed in an interview with the Consulting Times that the LTC "wanted skills from across IBM, and we have people from AIX, and OS2 . . . and PTX, and Research and so on." (Consulting Times, Inside IBM -- Dan Frye and the Linux Technology Center, Ex. 8.) Frye also discussed the porting of IBM's proprietary technology to Linux, stating "[IBM] just add[s] arms and legs and skills to make [projects within Linux] go faster." (Id.)

When SCO realized that IBM was improperly using these Unix-derived works in Linux, SCO confronted IBM regarding the problem without success, and then SCO filed the instant lawsuit against IBM on March 6, 2003. SCO's initial complaint against IBM made clear that the conduct of the LTC in making disclosures to Linux development was at the heart of the lawsuit.

IBM's destruction of evidence then ensued as a direct response to the lawsuit. After SCO filed its lawsuit, IBM immediately determined that access by its Linux programmers to AIX and Dynix/ptx code should be removed. This shows that there was no confusion on IBM's part as to the significance of this AIX and Dynix/ptx code to which its Linux programmers had access and the nature of the problem alleged by SCO in its complaint. However, IBM did not stop there. IBM's OSSC then decided that Linux programmers whose access had been removed should also "purge" their sandboxes or similar workspaces. That OSSC decision was then implemented in

12

IBM's Linux Technology Center -- the very organization within IBM that was tasked with developing the code for Linux that was at issue in SCO's lawsuit.

This rapid succession of events from SCO's lawsuit to the destruction of the sandbox evidence necessarily creates an inference of bad faith. IBM cannot reasonably contend that its destruction of evidence was accidental or coincidental. The destruction was an intentional act taken in response to the filing of SCO's lawsuit. This establishes willfulness and bad faith. Furthermore, IBM spent the next two years after the lawsuit resisting efforts of SCO to obtain access to the code repository systems CMVC and RCS that it now claims absolve it of any culpability for destroying evidence in 2003.

At the January hearing IBM argued that SCO has not satisfied the bad faith element because "SCO has not come forward with a shred of evidence that any member of the LTC, or Mr. Swanberg, ever entertained the thought that what they were doing by making this very simple request was destroying evidence." But this argument goes far beyond what the law requires of SCO to show bad faith. Bad faith can be inferred from circumstantial evidence, Adams v. Gateway, Inc., No. 2:02-CV-106 TS, 2006 WL 2563418, at *3 (D. Utah 2006) (Ex. C). In particular, courts have found the timing of the destruction of evidence -- whether evidence is destroyed after notice that it could be relevant in litigation -- probative to bad faith. See, e.g., In re Napster, Inc. Copyright Litig., 462 F. Supp. 2d 1060, 1070, 1072-74 (N.D. Cal. 2006) (finding duty to maintain and not destroy relevant email and other documents after notice of litigation, and that destruction after notice of litigation is relevant to determination of willfulness or bad faith); Computer Associates Int'l, Inc. v. Am. Fundware, Inc., 133 F.R.D. 166, 169-70 (D. Colo. 1990) (finding deletion of source code by computer program developer in copyright action

13

merited spoliation sanction of default because timing of destruction after notice of litigation); Brown & Williamson Tobacco Corp. v. Jacobson, 644 F. Supp. 1240, 1248-49 (N.D. Ill. 1986) (noting under a totality of the circumstances analysis that selective destruction after notice that a lawsuit is pending may serve as basis for finding bad faith spoliation); Brown & Williamson Tobacco Corp. v. Jacobson, 827 F.2d 1119, 1134-35 (7th Cir. 1987) (affirming jury finding in trial court on same).

The decision in Computer Associates Int'l, Inc. v. Am. Fundware, Inc., 133 F.R.D. 166, 169-70 (D. Colo. 1990), is particularly instructive. In that case, Computer Associates ("CA") alleged that the defendant, American Fundware ("AF"), improperly copied its software in violation of their agreement. As in the SCO case, CA brought these issues to AF's attention and, when a resolution could not be reached, filed suit against AF. Id. at 168. Before that time, AF had been destroying all previous versions of the software at issue, other than the current version, and AF continued this practice after the litigation had commenced. Id. CA moved for sanctions based on this spoliation of evidence. The court imposed a default judgment on AF for its destruction -- even though the court found that the practice of deleting old versions "is commonly followed in the industry, for legitimate reasons, and is not inherently wrongful." Id. The court persuasively explained: "It is inconceivable that after the October 1986 [pre-litigation] meeting, AF did not realize that the software in its possession would be sought through discovery. Certainly commencement of the action settles any doubts." at 169 (emphasis added). Therefore, the court concluded that the destruction was willful and in bad faith, and that the destruction of source code, the "best evidence" of copying, inflicted "the ultimate prejudice." Id. at 170. In this case -- where IBM actually undertook the destruction of evidence in response to

14

the litigation and with clear notice that the evidence would be relevant to SCO's claims -- bad faith should be inferred.

15

CONCLUSION

For the foregoing reasons, SCO respectfully requests that this Court overturn the Magistrate Court's Order of March 2, 2007, and grant the relief requested above for IBM's spoliation of evidence.

DATED this 16th day of March, 2007.


HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Stuart H. Singer
Stephen N. Zack
Edward Normand

By [Signature of Mark F. James]
Counsel for The SCO Group

16

CERTIFICATE OF SERVICE

Plaintiff/Counterclaim-Defendant, The SCO Group, Inc., hereby certifies that a true and correct copy of the foregoing REDACTED SCO's MEMORANDUM IN SUPPORT OF ITS OBJECTIONS TO THE MAGISTRATE JUDGE'S ORDER OF MARCH 2,2007 DENYING SCO's MOTION FOR RELIEF FOR IBM's SPOLIATION OF EVIDENCE was served on Defendant/Counterclaim-Plaintiff, International Business Machines Corporation, on this 20th day of March, 2007, CM/ECF to the following:


David Marriott, Esq. ([email])
Cravath, Swaine & Moore LLP
[address]

Todd Shaughnessy, Esq. ([email])
Snell & Wilmer LLP
[address]

By: /s/ Mark James

17


1 This clearly shows that, contrary to what it has repeatedly argued to this court, IBM understood exactly what the thrust of SCO's allegations was about IBM using AIX and Dynix technology and expertise to enhance Linux in violation of its contractual obligations.

(Referenced here)
2 The Read Copy Update (or RCU) technology is one of the major items of Dynix/ptx technology SCO contends was improperly disclosed by IBM.

(Referenced here)
3 The Magistrate Court only referenced CMVC, which is an AIX code repository. CMVC does not contain any Dynix/ptx code, so could not possibly have contained duplicates of any Dynix/ptx code that SCO contends was destroyed. Therefore, SCO also addresses herein IBM's anticipated argument that any destroyed Dynix/ptx code would have been included on the Dynix/ptx change control system, RCS, comparable to AIX'S CMVC.

(Referenced here)

  


A Groucho Marx Imitation in SCO v. IBM & SCO's Memo in Support of Objections to Order on Spoliation | 591 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Thread
Authored by: free980211 on Thursday, May 03 2007 @ 03:24 AM EDT
so they are easy to find

[ Reply to This | # ]

Off Topic Thread
Authored by: free980211 on Thursday, May 03 2007 @ 03:25 AM EDT
Please remember to make links clickable...

[ Reply to This | # ]

A Groucho Marx Imitation in SCO v. IBM & SCO's Memo in Support of Objections to Order on Spoliat
Authored by: Anonymous on Thursday, May 03 2007 @ 03:34 AM EDT
Groucho said it all, quite briefly:

"Time flies like an arrow, fruit flies like a banana"

Top that SCO

Guido
(Who forgot to log in)

[ Reply to This | # ]

A Groucho Marx Imitation in SCO v. IBM & SCO's Memo in Support of Objections to Order on Spoliat
Authored by: Anonymous on Thursday, May 03 2007 @ 03:34 AM EDT
SCOG is an anagram of COGS, cogs go round and round, therefore they are allowed
to use circular arguments. If a cog breaks then it is because of IBM's failure
to carry out due maintenance such as delete all code to prevent the cogs being
used for the wrong type of drive(OS). If they delete the code then they
haven't put all the cogs back together again correctly and it prevents SCOG from
seeing how IBM got the whole drive unit working quite so well as it does.

Andrew Ed

[ Reply to This | # ]

SCO is succeeding
Authored by: devil's advocate on Thursday, May 03 2007 @ 03:35 AM EDT
I get SCO's strategy now. It's not just delay for delay's sake. They want to
send all the Groklaw readers to sleep so they will stop following the case.
They're trying to bore us to death - and they're succeeding. I, at least, can't
read this stuff any more. My eyes just glaze over.

[ Reply to This | # ]

A Groucho Marx Imitation in SCO v. IBM & SCO's Memo in Support of Objections to Order on Spoliat
Authored by: Anonymous on Thursday, May 03 2007 @ 03:47 AM EDT
Once again we see redactions for dramatic emphasis.

Tufty

[ Reply to This | # ]

A Lewis Mettler Imitation?
Authored by: Anonymous on Thursday, May 03 2007 @ 04:05 AM EDT
I miss the legal analysis you once tried to give,PJ.

[ Reply to This | # ]

A Groucho Marx Imitation in SCO v. IBM & SCO's Memo in Support of Objections to Order on Spoliation
Authored by: muswell100 on Thursday, May 03 2007 @ 04:09 AM EDT
...and in SCO's case, there certainly "ain't no Sanity Claus"...

[ Reply to This | # ]

Good news, everyone!
Authored by: Ian Al on Thursday, May 03 2007 @ 04:11 AM EDT
SCOG have invented a new crime for us to consider. They say,

lawsuit against IBM, which plainly contested IBM's use of UNIX-derived operating systems in developing Linux.
I'm not from around here so I was not aware that it is illegal to use an operating system derived from another, licenced operating system for the programming of a third operating system.

Well, IBM are clearly guilty, for once. SCOG didn't produce any case law or quotes from the contract, so I can't work out what, exactly, it is that IBM have transgressed, but this is clearly more than just a smoking gun. There's evidence which has already been stipulated by IBM (all the contributions to Linux).

I assume that whatever it is doesn't restrict the primary OS to UNIX. It's a shame. In spite of having all those handy GNU tools to do it, we are never going to see another operating system produced in the United States of America. Fortunately, in the rest of the world we have no such laws and we also have Linux as a handy development platform.

To summarise my point---- [redacted].

---
Regards
Ian Al

[ Reply to This | # ]

A Groucho Marx Imitation in SCO v. IBM & SCO's Memo in Support of Objections to Order on Spoliat
Authored by: Anonymous on Thursday, May 03 2007 @ 04:12 AM EDT
I find this document particularly illogical, because SCO argues, as best I can make out, that IBM employees deleted AIX and Dynix/ptx code from their sandboxes prior to beginning work on a Linux project, and that because they did that, valuable evidence was lost, so SCO should win, even though it has failed to provide any evidence of infringement.
I only did a quick scan of the text but that is certainly not the impression I got. Rather, SCO is saying that IBM programmers worked on Linux while having AIX and/or Dynix code available on the same machine (or sandbox or whatever). Then after SCO filed suit, IBM management wanted the Linux programmers machines wiped clean off AIX/Dynix code.

They concede that possibly the actual code is still available in code repositories, but that the act of removing it from the development machines destroyed evidence because if it were available intact it would have helped them ascertain "disclosures" by narrowing the scope of material they needed to examine. And they say that this shows bad faith on IBM because they were attempting to cover their tracks, sort of speak.

[ Reply to This | # ]

It also begs the question
Authored by: jmc on Thursday, May 03 2007 @ 05:17 AM EDT
As to whether SCO has any control over IBM's own property and can keep or delete
its own code as it sees fit.

Even if IBM had given such a directive (and note how SCO perpetuate the lie
about Mr Swanberg being "a senior IBM executive") they surely have the
defence that they cannot have imagined that SCO was claiming ownership of their
own property.

[ Reply to This | # ]

Magical, magical sandboxes
Authored by: Anonymous on Thursday, May 03 2007 @ 06:57 AM EDT
SCOG seems to ascribe some very magical properties to "sandboxes".
Which is sort-of easy to do, since that concept is not very precisely defined...
everybody seems to mean something else by that word.

[ Reply to This | # ]

A Groucho Marx Imitation in SCO v. IBM & SCO's Memo in Support of Objections to Order on Spoliat
Authored by: Anonymous on Thursday, May 03 2007 @ 06:57 AM EDT
This isn't Groucho Marx: this is Monty Python and the holy Grail.

Some thoughts

'[I]n its December 2005 Submission, SCO was able to identify numerous methods
and concepts that IBM programmers disclosed to Linux in violation of its
Dynix/ptx software license, but in many cases SCO was not able to identify the
specific Dynix/ptx source code behind the methods and concepts.

Those methods and concepts were stricken from SCO's case.'

Er ... run that by me again.

SCO 'owns' methods and concepts in Unix - a contested point but lets go with
that for now. Unix last time I looked was an OS written in C and assembler.
Everything in Unix is expressed in code.

EVERYTHING.

This means that if there are ANY methods and concepts in Unix owned by SCO they
MUST be expressed in code and this means that they are identifiable.

How I read this is that either [1] SCO is making up this methods and concepts
stuff (probable) or [2] they are so incompetent that even these methods and
concepts hit them over the head with a small brick they could not see them
(possible).

SCO also have to show that [1] these 'methods and concepts' are in fact
protected by law (recall that both sides have agreed that there are no trade
secrets in Unix) and [2] that SCO actually have ownership rights to them. This
might be tricky given what Novell has on file in this case and the IBM buyout.

+++++++++++++

'IBM repeatedly and publicly boasted that its experience in and disclosures from
AIX and Dynix/ptx was the critical difference in evolving Linux from a hobbyist
system to a commercially-hardening operating system.'

The facts do not bear this out. Red Hat was doing very nicely thank you before
IBM joined the party.

This is NOT to say that IBM contribution was and is not insignificant. IBM's
contribution has been and looks likely to continue to be significant. However
Red Hat floated in 1997 having been in business for some time. IBM declared its
interest in 2000. So I think the publicly known facts contradict this filing.

I know there is a thin line between incompetence and deliberately trying to
mislead the court (AKA perjury) but this filing must be at least on the boundary
if not over it.

Perjury is not something to be done lightly. Ask Lord Brown of BP about that.

(For those who might not know what this last comment means Lord Brown was the
CEO of BP a very large multinational oil company. He joined BP 41 years ago in
its oil exploration arm. He expanded BP from a smallish multinational into an
enormous one shortly after taking over as CEO.

He is a *very* smart guy and a personal friend of the British prime minister
Tony Blair. He is also on first name terms with Mr Putin of Russia and virtually
every president/prime minister etc with significant oil or gas reserves.

Among his known faults is a tendency to arrogance and distain for those he
considers beneath him.

His little problem with the law arose recently. He is or rather was a closet
homosexual. This was a well known fact among many he dealt with but one he
preferred to keep to himself. In 2002 he met an man working for an escort
agency. In short he fell in love. This didnt work out and they parted. The man
in question moved back to Canada and started sending what amounted to begging
letters and threatening exposure of Brown's sexual orientation. Not nice.

Brown tried to get a gagging order on this. Now rather stupidly Brown lied to
the court about how he met this man. He retracted this statement 2 weeks later
after overwheming evidence that he had knowing made a false statement to the
court.

The judges were NOT pleased.

The upshot: Brown has resigned forgoing a UK £12 million pay off. Two banks of
whom is a non executive director have asked him to resign. The judge in his
ruling has made it clear that he may refer the matter to the Attorney General
and a jail sentence may be forthcoming.

In short it is NOT a wise thing to lie to the court even if you are one of the
most powerful business men in the world. )

Consider the position of SCO and its lawyers after this filing. Linux was a
commercial system well before IBM committed itself to Linux.

Does this filing now amount to perjury?

That is the question before Judge K now.

--

MadScientist

[ Reply to This | # ]

Extension until April 18?
Authored by: bjnord on Thursday, May 03 2007 @ 07:21 AM EDT
I was trying to keep track of this mess, and I must have missed something. I thought IBM requested an extension until April 18 to file their memo in opposition on this issue (which the court ordered over SCO's objections). See this GL story.

Was that request for an extension for something else? If not, this memo in opp'n should already have been due; how could they then file 1039/1040 at the end of April asking to make it overlong?

[ Reply to This | # ]

A Groucho Marx Imitation in SCO v. IBM & SCO's Memo in Support of Objections to Order on Spoliat
Authored by: Anonymous on Thursday, May 03 2007 @ 07:47 AM EDT
Remarkable. You're beginning to think more like SCO every day...

Sorry, not trying to be insulting :), just couldn't help it.

Still, assuming this is SCO's tie to their claims, the only way this could
affect the case would be if the judge bought SCO's claim that, without pointing
at actual code in Linux, the UNIX related methods and concepts that the
programmers learned while writing IBM owned AIX/DYNIX code generally affected
the code they also wrote that went into Linux. And of course the judge also has
to accept that SCO owns the "copyright" on said methods and concepts
and also controls IBM's own code. Have I got the theory right?

[ Reply to This | # ]

Let Me Make Sure I've Got This Straight....
Authored by: TheBlueSkyRanger on Thursday, May 03 2007 @ 07:47 AM EDT
Hey, everybody!

SCO is saying Linux is a Unix derivative based on superficial similiarities
(after all, if it truly was Unix, you could run Unix applications on it without
tweaking). This is their conclusion. And everything hinges on accepting the
conclusion as fact instead of an accusation to be proven.

Consider the sandbox argument. There has to be missing evidence because the end
result is so similar, it didn't just work out this way (note: this is only as
far as they are showing. Anyone with tech savvy understands the differences and
how Linux evolved to this point on its own). But if you view SCO's statement
about Linux == Unix as an accusation, the sandbox argument is meaningless since
they haven't even shown why they are so sure it is a rip off. To quote the game
"Sherlock Holmes--Consulting Detective," "And on what do you base
THAT brilliant deduction?"

It takes me back to trig class, when the teachers were telling students working
on proofs, "Could you PLEASE show your work?" SCO is presenting the
Linux/Unix accusation as a given statement, not the statement that must be
proven. And things would be so much easier if the judges weren't following what
was going on or IBM wasn't as good at explaining things (or both, obviously).
It's like that old saying, "I'd agree with you if you were right."

Dobre utka,
The Blue Sky Ranger

[ Reply to This | # ]

enlarging the deadline ?
Authored by: rsteinmetz70112 on Thursday, May 03 2007 @ 08:19 AM EDT
Don't you usually extend a deadline?

Doesn't enlarge usually mean something different, like introducing new or more
extensive reasons?

IS SCO being cute, trying to pull something or is this lawyerism, I simply don't
recognize?

---
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 | # ]

Re: on what basis does SCO claim that in fact they retained some or all of it?
Authored by: Anonymous on Thursday, May 03 2007 @ 08:23 AM EDT
Maybe because they had folks contributing to LINUX that did not clean out their
lunchboxes and the crumbs were all over the place. Helwig was an employee of
theirs, and he was contributing to LINUX. What about his tainting of LINUX?

[ Reply to This | # ]

SCOG's mountain/molehill and SCOG's error - Moving AIX or Dynix code toward Linux
Authored by: Anonymous on Thursday, May 03 2007 @ 08:51 AM EDT
Moving AIX or Dynix code toward Linux would make that code non-compilable in the
AIX or Dynix environment or sandbox.

The sandbox would then be useless for both AIX or Dynix (because the compile
would break) and useless for Linux (it doesn't compile yet after one tiny change
it's miles and miles away from being Linxu code.

So the Linux code that was generated that way would have to be moved out of the
sandbox or else if copies were retained there's a good chance these would
"break the build".

IOW, if the sandboxes and CMVC did what Rochkind/Ivie allege and fictionally
suppose, keeping versions of Linux code in the AIX and Dynix sandboxes, Linux
development would corrupt the AIX and Dynix CMVC and all sandboxes made after
the Linux versions were checked in. You would have a flood of emails demanding


"WHO'S THE IDIOT THAT BROKE THE BUILD" and the Linux code in CMVC
would stick out like a sore thumb.

A sandbox, after all, is useful only to the extent that it helps you generate
code.

An AIX or Dynix sandbox, would be set up for AIX or Dynix compilation and
development. Compilers. Make utilities. Indexing utilities. test coverage
tools. Environment variables. All set up over the last 20 years for AIX or
Dynix specifically.

Almost all probably useless for Linux.

And once that first alleged move toward Linux happens, the Sandbox is useless -
the code would have to be moved out of the AIX or Dynix sandbox into a Linux
development environment (and it would break that too, because after one change
it'll break the Linux build too).

Sandboxes don't work the way SCOG would have you believe, and any experienced
developer would never go about things the way Rochkind/Ivie allege. It would
actually be much harder to work that way, as opposed to writing new code for
Linux, and having compilable kernels from day one.

[ Reply to This | # ]

A coherent spoilation theory
Authored by: swmcd on Thursday, May 03 2007 @ 08:54 AM EDT
I think you can construct a coherent spoilation theory out of SCO's filings. I don't know if it has any legal validity, but it is at least coherent. Here's an analogy.

Company A has a big warehouse full of guns. In the course of their duties, employees routinely remove and return guns from the warehouse. Someone gets shot. Investigators want to know which employees had guns from the warehouse at the time of the shooting. And then it turns out that just after the shooting, management issued a memo directing employees to return all guns to the warehouse.

See the problem? True, no guns were destroyed, but the evidence is more than just the guns. The evidence is the fact that some employees had guns from the warehouse prior to the shooting. And once the guns are back in the warehouse (with no record of who removed or returned them) those facts are lost.

I think what SCO would like is some kind of record (like a videotape) that would show an IBM employee looking at some SCO code in one window on their screen, and looking at some Linux code in another window, and the employee copying code from the SCO window to the Linux window. And then SCO could get up in front of a jury and say, "Look! They copied our code. You can see it happening, right before your eyes."

My understanding is that copyright law looks at the end result, not the process, so unless the resulting Linux code actually resembles some SCO code, there isn't any infringement. And so far, SCO hasn't been able to demonstrate any substantial similarity.

Which may be why they're pursuing this spoilation thing so tenaciously. They're hoping to find evidence of some copying process that they can use to bamboozle a jury, or at least milk for FUD.

If not videotapes, SCO would like a complete record of everything that every programmer did on their computer: keystroke-by-keystroke, mouse click-by-mouse click, video frame-by-video frame. (Estimating the data storage requirements for this is left as an exercise for the reader).

And lacking that, SCO would like a complete record of every file that ever moved on or off of each programmer's computer.

All version control systems record checkins, with timestamps and programmer identification. But not all record checkouts, and few keep a record of checkouts that were abandoned (i.e. never checked in). Files that programmers had in their sandboxes are still in version control, yes, but when the sandboxes were deleted, the facts of which programmers had which files were lost.

Which is why SCO is so aggrieved by this sandbox memo. They think that if they had the contents of those sandboxes, they would be able to show

  • that their code
  • was on the computer
  • of a programmer
  • who later
  • worked on Linux
And from that, make a case for some kind of copying process, regardless of whether there was any actual copyright infringement.

[ Reply to This | # ]

Ummmm
Authored by: rjamestaylor on Thursday, May 03 2007 @ 09:33 AM EDT
Does that make sense? SCO claims that they did delete it, so on what basis does SCO claim that in fact they retained some or all of it? What makes them think that they did? What evidence is there for this theoretical? And if they did, wouldn't it still be available? And if they didn't, what would be the problem, since there would be nothing improper retained. See how illogical? It wants IBM punished for not figuring out that SCO might reason like this. But without any evidence that anybody did retain code (and if they did, it should still be there), SCO creates only what I would call a theoretical alleged spoliation, because spoliation is about evidence, and where is there any proof that anything SCO is imagining ever actually happened? All of SCO's cases fail on that same illogical point.
I read this three times. I recognize the effort by PJ to explain the illogical rhetoric of SCO/Caldera but I still found this paragraph impenetrable.

---
SCO delenda est! Salt their fields!

[ Reply to This | # ]

  • Ummmm - Authored by: Anonymous on Thursday, May 03 2007 @ 11:49 AM EDT
    • Really? - Authored by: Dark on Thursday, May 03 2007 @ 12:22 PM EDT
      • Really? - Authored by: Anonymous on Thursday, May 03 2007 @ 12:51 PM EDT
    • Ummmm - Authored by: Christian on Thursday, May 03 2007 @ 01:44 PM EDT
  • Ummmm - Authored by: Toon Moene on Thursday, May 03 2007 @ 02:56 PM EDT
The sandboxes wouldn't prove what SCOG's claiming anyway
Authored by: Anonymous on Thursday, May 03 2007 @ 10:31 AM EDT
whether anyone kept AIX or Dynix.

did SCOG subpoena copies of all hard drives?

That would be the way to establish whether there were copies - sandboxes after
all are only one way out of many of keeping copies.

And they signed the discovery stipulation.

So how many sandbagging attempts is that from SCOG? And we don't have the full
count yet.

It's a pattern with these people

[ Reply to This | # ]

Best use of the evidence
Authored by: Wardo on Thursday, May 03 2007 @ 10:54 AM EDT

There is no doubt that the programmers in question deleted some files. IBM doesn't deny it, they have every reason to say the evidence is still there (because it is). It was (IMHO of course) a wise decision to limit liability at that point in time, but perhaps not. (Hindsight etc.)

I think the only use SCO has for this evidence is to bridge any gaps in their theory of code transmission between SVRx and Linux through IBM.

I recall that SCO hasn't connected their copyrighted code with Linux code to begin with. Their arguments about the totality of AIX/Dynix needing the same protection as the SCO code is a farce, and should be decided sometime before trial. Most of the contested code goes away at that point, because it's home-grown by IBM, and shouldn't be subject to that sort of confidentiality.

Remaining code appears to have lineage into Linux from other OS codebases in IBM's possession (OS2), or otherwise available (BSD).

If there is anything leftover after those two issues are decided, then I think IBM has lost the ability to claim that they haven't copied from AIX/Dynix to Linux, and could not raise the issue of third parties with access to that code, who may have copied it to Linux. (I hope that made sense.) Provided of course that some third party did have access to source code for AIX/Dynix...

And lets not forget the most important lynchpin in the SCO case...

IF ( SVRx.CopyrightOwner != SCOg ) THEN ( CheckPSJDependencies() );

Wardo

---
caveat lector...
Wardo = new user(lawyer = FALSE,badTypist = TRUE,badSpeller = TRUE);

[ Reply to This | # ]

More like the play "Waiting for Godot"
Authored by: vruz on Thursday, May 03 2007 @ 10:56 AM EDT
More of a tragicomic, game-changing, desperate, kind of play.

Wikipedia: Waiting for Godot by Samuel Beckett

It's interesting Beckett loosely borrowed elements from the Marx Brothers, Buster Keaton and Laurel & Hardy, but certainly "Godot" has the tragic element added.


---
--- the vruz

[ Reply to This | # ]

I'm scared I almost understand the argument they try to make...
Authored by: Anonymous on Thursday, May 03 2007 @ 10:58 AM EDT
Being a programmer myself and knowing what a sandbox is and how they are
used...

SCO claims that programmers had access to AIX/Dynix and had it on there machines
while working on Linux... OK, that would be sorta wrong....

However the end result is still...

if they did put code from AIX/Dynix into Linux then the code would be there....
and you should be able to show that code in the VCS and the linux source... and
they haven't be able to show us...

Darl please show us the code....

[ Reply to This | # ]

translation ..
Authored by: Anonymous on Thursday, May 03 2007 @ 11:24 AM EDT
The pawtief, fwough feiw counfew of wecowd, heweby ftipuwate and jointwy move fe
Couwt fow an Owdew enwawging fe deadwine fow SCO to fiwe itf fuw-fuwwepwy to
IBM'f Suw-Repwy Memowandum in Fuwfew Oppofition to SCO'f Objectionf to fe
Magiftwate Judge'f Owdew on IBM'f Motion to Confine and SCO'f Motion to Amend
itf Decembew 2005 Submiffion, on ow befowe May 11, 2007

[ Reply to This | # ]

Want To Buy An Argument
Authored by: sonicfrog on Thursday, May 03 2007 @ 12:19 PM EDT
This is much more like the Monty Python "I Want To Buy An Argument" sketch, except this real-life version is longer than five minutes and costs a bit more than 1 pence.

[ Reply to This | # ]

One thing that now one has said yet
Authored by: Anonymous on Thursday, May 03 2007 @ 01:04 PM EDT
In all of the pleadings that I've read, there's one thing that no one has come out and said,

There is a reason why it's called a sandbox.

A sandbox is a place where you play with temporary structures. When there isn't any room to build a new castle, you knock down some of the oder ones. Other times you step on it without meaning too, but that's OK because it's just a sandbox.

[ Reply to This | # ]

SANITY CLAUSE v. SANTA CLAUS
Authored by: Anonymous on Thursday, May 03 2007 @ 01:18 PM EDT
In SCO's case they need a SANTA CLAUS

[ Reply to This | # ]

Schrödinger's sandbox
Authored by: Anonymous on Thursday, May 03 2007 @ 01:27 PM EDT
So, the right thing to IBM to have done in SCOs world is to clean out the AIX
code from the sandbox before Linux was put in the sandbox to be worked on.

The most efficient way to clean out the sandbox is to delete it.

But if the sandbox is deleted, that provides evidence for two things
simultaneously:

1) The AIX code was deleted prior to Linux being used. Because if it is not
there, it is not there.

2) The evidence was spoiled because the evidence is not there. The evidence of
an empty sandbox is not there because the sandbox is not there.

Now the judge will look at the evidence and the cat who used the sandbox will
either be alive or dead. We won't know until a decision is made. So, right
now, the cat is both alive and dead.

/No cats were harmed in the making of this analogy.

[ Reply to This | # ]

The sur-sur-reply
Authored by: Anonymous on Thursday, May 03 2007 @ 01:42 PM EDT
Normal motion practice is ABA - SCO moves, IBM responds, SCO replies. But SCO
in their reply brought in some new stuff that wasn't in their motion, and which
therefore IBM hadn't had a chance to reply to. So IBM filed a sur-reply to get
a chance to respond to that new stuff.

Now SCO is replying to IBM's sur-reply. If I understand correctly, this is
perfectly normal when there has been a sur-reply - the moving party always gets
the last word. It will be ABABA rather than ABA, but since SCO was the one who
made the original motion, they get the last reply.

But I've got this nagging suspicion that doesn't want the last word. I expect
SCO to put something new in their sur-sur-reply. This will put IBM in the
position of having to do this yet again (file a sur-sur-sur-reply), or else let
SCO say something unchallenged. And I expect IBM to refuse to play, asking the
court to reject SCO's motion or strike part of it or something similar.

If SCO really does what I suspect they will, it will be a demonstration of
extreme desperation.

Why would SCO do such a thing? Delay. Expecially if they can delay the PSJs by
having this spoliation nonsense cluttering up the landscape. Can Kimball rule
on the PSJs before he gets this out of the way? It would be "an issue of
material fact", or at least an assumption of material fact that would be
against IBM's position...

MSS2

[ Reply to This | # ]

sur-surreply
Authored by: lordshipmayhem on Thursday, May 03 2007 @ 01:49 PM EDT
Every time I think this case can't get any stranger, it does.

It's a case of sur-surreality.

I keep wanting the judge to say to SCOX and BSF, "No, you've talked enough,
now sit down and shaddup." I know such an attitude would result in
SCOX/BSF launching an immediate appeal to a higher court, but still I'd like to
see the look on their faces.

C'mon. I've got some New Zealand Cat Pee on a Gooseberry Bush wine sitting in
the fridge chilling, waiting for the end of this mess.

[ Reply to This | # ]

Spoliation
Authored by: Anonymous on Thursday, May 03 2007 @ 01:55 PM EDT
Let's see if I have this correct:
SCO claims that IBM's programmers had Dynix on their machines while developing
Linux, to use for reference.
SCO then claims that those same IBM programmers deleted Dynix before starting
work on Linux, and this is where the spoliation comes in? Kind of like saying
your neighbor didn't steal your car, thereby destroying evidence of it's theft?
Yes, No?

[ Reply to This | # ]

  • Spoliation - Authored by: Anonymous on Thursday, May 03 2007 @ 02:49 PM EDT
    • Spoliation - Authored by: Steve Martin on Thursday, May 03 2007 @ 05:42 PM EDT
    • SCOGs claims - Authored by: Anonymous on Thursday, May 03 2007 @ 06:52 PM EDT
      • SCOGs claims - Authored by: Anonymous on Thursday, May 03 2007 @ 07:02 PM EDT
A Groucho Marx Imitation in SCO v. IBM & SCO's Memo in Support of Objections to Order on Spoliat
Authored by: Anonymous on Thursday, May 03 2007 @ 02:26 PM EDT
Can the judge remand the SCOx lawyers to have a Psycho Exam?

[ Reply to This | # ]

To Sur, With Love
Authored by: Anonymous on Thursday, May 03 2007 @ 02:29 PM EDT
...D

[ Reply to This | # ]

Copyright question
Authored by: MadTom1999 on Thursday, May 03 2007 @ 02:44 PM EDT
The Marx Bro quote: What heppens with copyright on that?
If its out of copyright can anyone tell me where I can download the films?
Just playing devils advocate but if theres a whole load of early films out of
copyright then I wont ever have to pay to see a film again!

[ Reply to This | # ]

  • Public domain - Authored by: Anonymous on Thursday, May 03 2007 @ 04:38 PM EDT
A Groucho Marx Imitation in SCO v. IBM & SCO's Memo in Support of Objections to Order on Spoliat
Authored by: Anonymous on Thursday, May 03 2007 @ 05:26 PM EDT
I find this document particularly illogical, because SCO argues, as best I can make out, that IBM employees deleted AIX and Dynix/ptx code from their sandboxes prior to beginning work on a Linux project, and that because they did that, valuable evidence was lost, so SCO should win, even though it has failed to provide any evidence of infringement.


Actually the explanation is simple.

If IBM had left the code on the development machines, it would have been there for the programmers to refer to as they worked on Linux.

Because it was deleted, it was NOT there to be referenced.

This spoliated the dickens out of what would have made great evidence if it had been there while IBM developers were working on Linux.
This is especially prejudicial since if it was not available to reference, the AIX or Dynix code that actually could have made it into Linux is reduced to an infintesimal amount. This makes it impossible to find and thus show to the court.

Because IBM deleted what would have been evidence if it had been left, SCO's case is decimated.
Ya gotta give us some relief, judge.
;-) cbc

[ Reply to This | # ]

A Groucho Marx Imitation in SCO v. IBM & SCO's Memo in Support of Objections to Order on Spoliat
Authored by: Anonymous on Thursday, May 03 2007 @ 05:43 PM EDT
Lovely, the Marx' sketch, lovely!
It's so nice between all this serious business to be
able to laugh your belly sore for a minute.
We need more of this!

bj

[ Reply to This | # ]

Instant lawsuit?
Authored by: Anonymous on Thursday, May 03 2007 @ 05:54 PM EDT
I've searched Groklaw and the Law Dictionary, but I can't find an explanation of
this term. What make a lawsuit non-instant?

[ Reply to This | # ]

SCO should partially win this
Authored by: Anonymous on Thursday, May 03 2007 @ 06:41 PM EDT
Evidence was destroyed. While the information about who checked out what when
seems to have been retained, some or all of the AIX and Dynix (Unix) files on
each developer's system may have been destroyed before the removal email was
sent. This harms SCO in two ways:

1. If just a part of the Unix files was deleted, that could reduce the SCO's
search for the source of any violation. However, since

--a. It is much easier to keep or delete all the files rather than just some of
them, so partial deletions are unlikely.

--b. The potential effort that could have been saved by SCO does not look
significant.

the harm done was de minimis, and deserves no sanction.

2. IBM could claim that the files may have been deleted before the order for
deletion was made, reducing opportunity for infringing use by the programmers.

SCO asks for (1) enter an order precluding IBM from contesting that it relied on
AIX and Dynix/ptx source code in making contributions to Linux development, and
(2) imposing adverse-inference instruction against IBM.

(1) is ridiculous. No reasonable content on those computers would have provided
enough evidence to reach that conclusion.

(2) should be granted, to the extent that IBM be barred from arguing that the
files in question were deleted before the email was sent.

I don't see how this would help SCO much.

[ Reply to This | # ]

A Groucho Marx Imitation in SCO v. IBM & SCO's Memo in Support of Objections to Order on Spoliat
Authored by: daWabbit on Thursday, May 03 2007 @ 06:47 PM EDT
"As usual with SCO, it isn't possible to be positive if they don't
understand how software is written or if they are pretending not to." --PJ

I'm not exactly a "real" programmer, but I do a little and always in
concert with others. I save literally everything, even the deleted comments. So
I went looking through it all and found that the whole enchilada is in the final
versions, test or otherwise. "Commits" to the repositories are what
count. There is never another story in the discards because they are usually
unrelated to the final version.

From this I conclude that SCO, who surely must know how software is developed,
despite PJ's speculation, are willfully acting ignorant in the hope someone will
trip up and they can exploit that mistake to keep things going, or (gasp) even
win something! (At best, they can win a lunch check at Wendy's, if they're still
on speaking terms with anyone around who would trust them not to welsh on a bet,
but that's another story, isn't it?)

Jack

---
"There ain't no reason I should work this hard when I can live off the chickens
in my neighbor's yard" -Bruno Wolfe

[ Reply to This | # ]

A four year old child could understand this
Authored by: mrcreosote on Thursday, May 03 2007 @ 06:53 PM EDT
Run out and find me a four year old child. I can't make head or tail out of it.

Rufus T Firefly (Groucho Marx) - Duck Soup.


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

[ Reply to This | # ]

IBM have destroyed the chads from the punched cards!
Authored by: Alan(UK) on Thursday, May 03 2007 @ 06:55 PM EDT
Wouldn't it be fun if IBM really did keep a record of every keystroke every
employee made from Havard Mk1 to date - and then they delivered the whole lot to
SCO.

I wonder what the complaint from SCO would be?

---
Microsoft is nailing up its own coffin from the inside.

[ Reply to This | # ]

Hypothetical question
Authored by: Anonymous on Thursday, May 03 2007 @ 07:32 PM EDT
Let's say that Kimball accepts all of SCO's arguments (not likely, given that he
already ruled against them once on this, and they don't seem to have anything
startlingly new to say to make him change his mind). What difference would it
make?

Wouldn't the maximum damage be that SCO is entitled to the inference that IBM's
programmers referred to AIX or Dynix while writing the 324 lines in dispute?
Would that really change the case any? I'm sure that IBM can shred SCO's claims
on those lines about 15 different ways, and I don't think that losing this point
would make any difference.

I know, there's more at stake here. IBM is also fighting to keep their good
name from being unjustly smeared. But as far as the case goes, it seems to me
that all this trench warfare on this issue is just for nothing at all.

So: IBM is fighting to protect their reputation. Why is SCO fighting so hard
on this? Is it because, as long as this issue is alive, it keeps the PSJs from
being decided?

MSS2

[ Reply to This | # ]

A Groucho Marx Imitation in SCO v. IBM & SCO's Memo in Support of Objections to Order on Spoliat
Authored by: Anonymous on Thursday, May 03 2007 @ 08:54 PM EDT
If this behaviour (deleting the sandbox) were consistent in all project (not
just linux project), can it still be called spoliation ?. I mean, if IBM
employee use sandbox as temporary work, testing code, and only save the final
code to CMVC and this behaviour is the same for all project, all time (before
and after SCO case).

[ Reply to This | # ]

This is how it all happened...
Authored by: Anonymous on Thursday, May 03 2007 @ 09:00 PM EDT
BSF attorney: Find me anything, anywhere in this mountain of dicovery where IBM
deleted or removed any anything. I don't even care what, better if a programmer
is involved.

Minion: Look at this. (Holds up email)

BSF attorney: No, No, that won't work. Keep looking.

(Days later...)

Minion: I've looked everywhere there's nothing else.

BSF attorney: Let me see that email again. It will have to do. Yes, yes, I can
work with this, just give me a minute...

Well something like that.

[ Reply to This | # ]

SCO to file its sur-surreply to IBM's Sur-Reply Memorandum
Authored by: CustomDesigned on Thursday, May 03 2007 @ 09:28 PM EDT
Now that is sur-real.

[ Reply to This | # ]

SCO needs a judge like Sam Sparks of Austin, TX
Authored by: Anonymous on Thursday, May 03 2007 @ 10:34 PM EDT
Apparently he had enough of a couple of attorneys:

Clicky

I have a PDF scan of the actual order. It's priceless.

[ Reply to This | # ]

SCO forgetting their own complaints?
Authored by: Anonymous on Thursday, May 03 2007 @ 11:16 PM EDT
Haven't read the original compaint in a long time, but I don't remember it being
about AIX/Dynix. I thought at first it was about SysV and literal dumping.

They certainly seem to bending the truth a bit saying that IBM knew the case was
about AIX/Dynix and therefore acting in bad faith. I seem to recall IBM
repeatedly asking them to identify what they were talking about, and SCO
repeatedly refusing to do so.

That's like me accusing the car lot of stealing some parts from my Ford truck.
The car lot asks "what parts?" I say "car parts." A few
days later the lot sells a VW bug that's been sitting there for months. I now
accuse them of trafficking in stolen goods, and getting rid of the evidence.
The car lot complains "but you said it was a Ford truck!" I say
"no, I said they were stolen from the truck. And I told you they were car
parts not truck parts, so you acted in bad faith by selling the VW!"

(Ok, I know they didn't forget anything. Their whole case is just like my
example, designed to mislead.)

[ Reply to This | # ]

I've worked it out. PJ has been cruelly misled by SCOG.
Authored by: Ian Al on Friday, May 04 2007 @ 05:41 AM EDT
The correct response to a sur-reply is a reply to the sur-reply and not a
sur-sur-reply. The sur-sur-reply can only happen after a sur-reply has been
lodged with the court. In other words, the only way that there could be a
sur-sur-reply at this stage is if IBM lodged a sur-reply to their original
sur-reply. Of course, if the court agreed to it, they would almost certainly
permit SCOG's reply to IBM's sur-sur-reply. If the court further agreed, then
SCOG could add to that reply in the form of a sur-sur-reply to the
sur-sur-reply. I might write a note to the clerk of the court as otherwise the
judges might get confused or lose the will to live.

My only advice to SCOG at this point would be 'put a sock in it'.

---
Regards
Ian Al

[ Reply to This | # ]

Groucho Marx, The Mikado & SCO v. IBM
Authored by: StudioBob on Friday, May 04 2007 @ 12:15 PM EDT

During his "You Bet Your Life" years, Groucho Marx played the Lord High Executioner in a performance of Gilbert & Sullivan's Mikado.

I wonder who would be on his "little list" from SCO? Here's a link to the original song, "As Someday it May Happen".

Curiously, TheMikado was a presentation on "The Bell Telephone Hour", sponsored by ... wait for it ... 'airquotes' SCO's predecessor in interest '/ airquotes' ... AT&T !

---
Karma comes around
...Especially to liars and thieves.

[ Reply to This | # ]

  • Corrected link - Authored by: Anonymous on Saturday, May 05 2007 @ 02:43 AM EDT
A Groucho Marx Imitation in SCO v. IBM & SCO's Memo in Support of Objections to Order on Spoliat
Authored by: Anonymous on Friday, May 04 2007 @ 01:34 PM EDT
I still love the scene where they are reviewing the contract, then get out the
scissors as each legal phrase is mis-understood, then cut out. Don't you wish
all contracts could be so easily simplified?

[ Reply to This | # ]

I don't understand the timeline.
Authored by: Anonymous on Friday, May 04 2007 @ 08:54 PM EDT

I have read the timeline pages for the IBM and Novell cases and I can not figure out one thing: According to the Judge's schedule plan, when will we get a decision on the PSJs?

[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )