Posted on 04/07/2006 8:34:49 AM PDT by ShadowAce
Now we're cooking. We have now IBM's Reply Memorandum in Further Support of Motion to Limit SCO's Claims Relating to Allegedly Misused Material and all the trimmings:
- IBM's Reply Memorandum
- Addendum A, a timeline showing all IBM's requests for specificity, the court's orders, and SCO's "repeated failures to identify" the allegedly misused code
- Addendum B, chart showing what IBM calls SCO's failure "to identify lines of System V, AIX or Dynix, and Linux material with respect to any of the 198 items".
- Addendum C, cases
- Declaration of Randall Davis
- Addendum A, Randall Davis' credentials as an expert
- Addendum B, the same chart, just as funny and mind-boggling the second time around
Finally, we get a glimmer of an idea of what SCO filed with the court as their list of allegedly misused materials. What it appears to have filed is just a list of Linux files. IBM references the Declaration of Randall Davis, IBM's expert, filed with this memorandum, who tells the court the following, as summarized by IBM:
SCO does not provide a complete set of reference points (version, file and line) for any of the 198 Items. Astonishingly, SCO fails specifically to identify a single line of System V, AIX or Dynix, and Linux code for any of the 198 Items. SCO does not identify specific System V, AIX, or Dynix version(s) or file(s) with respect to more than a few of the Items. Even specific versions and files of Linux are omitted with respect to many of the Items.
In short, well into our third year of this litigation, SCO still won't tell us what the case is about. IBM clearly isn't impressed with the list and asks the court to toss out the 198 items, which is the bulk of the list. Take a look at the chart IBM provides as Addendum B attached to the Memorandum and to the Randall Davis Declaration and you'll see what IBM is talking about. That's it, I hear you asking? That's all there is? After years of discovery we thought would never end, this is it? They have essentially nothing?
Why in the world would you seal a list of Linux files, which are already out there, in public view? Maybe SCO filed under seal because they were afraid we'd die laughing.
IBM, however, is not laughing. They are asking for sanctions for what they call SCO's willful disobedience to the court's numerous discovery orders. That's the best they call it. They say they think it adds up to bad faith.
SCO, IBM tells the court, just pretended to comply with the court's orders to provide with specificity the code it claims has been misused. Either they don't know what their claims are or they are hiding them. SCO still, believe it or not, after all this time, won't tell IBM what this case is about. There is no way for IBM to know what it has allegedly done, therefore. That means IBM has no way to prepare experts' reports or prepare for the summary judgment phase of the case. And that, they think, may be precisely SCO's purpose.
IBM believes that SCO may be deliberately withholding (if it even has any specific code in mind) the specificity until summary judgment time, to keep IBM in the dark on purpose, as a strategy. It attaches a detailed timeline, "showing IBM’s repeated requests, the Court’s repeated orders, and SCO’s repeated failures to identify the allegedly misused material with specificity", including some details of what's been going on privately between SCO's interim filing and their final disclosure, if that word even fits.
Get a load of this part of IBM's preliminary statement:
SCO asserts that it has complied with the Court’s orders and provided IBM with all of the specificity required by its discovery requests. SCO is wrong. With respect to the 198 Items that remain in dispute, the Final Disclosures come nowhere close to providing IBM the specificity ordered by the Court and necessary for IBM fully to defend itself. ...Following SCO’s public pronouncements about the strength of its case, the Court directed SCO (in no less than three separate orders) to particularize its claims. The Court ordered SCO unequivocally to disclose the specific lines of System V, AIX, Dynix and Linux implicated by its claims. SCO makes false pretensions of compliance but comes nowhere close with respect to the 198 Items at issue. SCO fails specifically to identify a single line of System V, AIX or Dynix material with respect to any of the 198 Items; it specifically identifies lines of Linux code with respect to only one of the Items. These failings not only violate this Court’s orders, but they also make it impossible for IBM properly to defend itself. As is further discussed below, SCO’s claims should be limited to the 92 Items not challenged here or abandoned by SCO.
A footnote tells us this about the numbers of items being challenged:
IBM’s motion sought initially to limit SCO’s claims to 201 of the 294 Items identified in the Final Disclosures. SCO abandoned one of the Items (No. 294) and clarified that another (No. 204) does not allege any misconduct by IBM. IBM’s motion included one Item inadvertently (No. 2). Thus, only 198 Items remain in dispute.
IBM tells the court that in asking that these items be dropped, it by no means is saying that the remainder have merit. IBM says pointblank that they don't think any of SCO's claims are meritorious, but they say they'll deal with the rest by summary judgment. In other words, they are saying these 198 are so vague, they don't lend themselves to summary judgment treatment. How can you argue against a claim, if you aren't told what it is?
But here is the amazing and fascinating part. SCO has, in its sealed memorandum, evidently told the court that they've told IBM enough that IBM should be able to figure out and identify the allegedly infringing code itself:
According to SCO, “IBM has ready access to the engineers who made the disputed disclosures to assist in identifying the nature of its contribution, whether it originated independently from protected material, how it is used, and whether it was in fact disclosed to the Linux community."
What an extraordinary response to the court's orders. As IBM points out, because SCO fails to "identify with specificity the versions, files and lines of System V, AIX, Dynix and Linux material that IBM is alleged to have misused," as a practical matter, it just isn't possible to evaluate SCO’s claims. We're talking about a lot of code. IBM references a Declaration of Todd Shaughnessy, which we don't yet have, which says "there are at least 11 versions, 112,622 files and 23,802,817 lines of System V code potentially implicated by SCO’s claims. There are at least 9 versions, 1,079,986 files and 1,216,698,259 lines of AIX code potentially implicated by SCO’s claims. There are at least 37 versions of the base operating system, and 472,176 files and 156,757,842 lines of Dynix code potentially implicated by SCO’s claims. And there are at least 597 versions, 3,485,859 files and 1,394,381,543 lines of Linux code potentially implicated to SCO’s claims." Precisely where in this massive pile of code should IBM start digging?
What makes it even more stunning is that SCO told the court that it could identify with specificity if it just could have the CMVC materials. It got them. Yet, as IBM points out, they don't appear to have used any of those laboriously collected materials:
As the Court will recall, SCO moved to compel the production of CMVC on the grounds that it would enable SCO to identify precisely the allegedly improper contributions at issue in this case.... Since IBM has now produced CMVC, and hundreds of millions of lines of source code for the purported purpose of allowing SCO to provide the detailed disclosures ordered by the Court, SCO cannot reasonably insist (once again) that IBM identify the information for itself.
I feel sure we'll hear more on this topic at the hearing coming up. I have this vague memory that SCO told Magistrate Judge Wells, when she asked them at a recent hearing if they'd found anything of use in those materials, that they had. Does anyone else remember that too? I hunted for it, and I'll hunt some more after I get some sleep, but that is my memory. If they did, where is it now? Even if my memory is wrong, and they didn't say it, where is it now? In his statement, Davis bluntly tells the court this:
15. SCO's failure to specify its claims puts on IBM the impossible burden of looking for undefined needles in an enormous haystack. The multiple versions of Unix, AIX, Dynix, and Linux comprise more than 1 billion lines of code.16. The size of the haystack is only part of the problem. With enough time, IBM would likely be able to search the haystack for the allegedly misused material, although I note that SCO's Mr. Sontag testified that it would take 25,000 man years to compare a single version of Linux (a mere 4,000,000 lines of code) to a single version of Unix.
17. The true difficulty with the Items at issue is that SCO does not describe the needles it is sending IBM to find. Instead of defining the 198 items at issue by providing version, file and line information, SCO describes them generally and imprecisely. As a result, the needles look just like hay. This suggests that SCO does not know what it claims or is hiding what it claims.
He elaborates with examples, but the point is that this is an IBM expert telling the court he can't really do his job, because there is no treasure map and not enough time to dig up the entire planet Earth. This failure to tell IBM and the court what this incredible lawsuit is all about is, in IBM's view, evidence of bad faith, but even if one didn't go that far, they say it surely amounts to a willful refusal to obey the court's clear directives. And we learn something else. SCO has asked the court to defer consideration of its disclosures until summary judgment time. Oh, perfect. This, IBM points out, works well with their strategy of not revealing anything specific until then. IBM thus ends up ambushed, and that isn't the way litigation is supposed to be conducted:
IV. THE ONLY APPROPRIATE REMEDY IS TO LIMIT SCO’S CLAIMS.
SCO urges the Court to defer consideration of its disclosures until the summary judgment phase of the case. We respectfully submit that there is no basis for such delay, which would merely serve SCO’s strategic purposes and result in prejudice to IBM.
As discussed above, SCO has failed to provide IBM and its experts the most basic information needed for IBM to evaluate SCO’s claims and prepare its defense. With respect to the 198 Items at issue, SCO has declined, as a practical matter, to tell IBM what is in dispute. As a result, IBM is prejudiced in its ability to prepare its defense. As SCO well knows, without the information IBM has requested -- which is known only to SCO -- IBM’s experts are unable properly to prepare their expert reports (which are due beginning on May 12, 2006), and IBM is unable properly to prepare summary judgment papers. Thus, deferring consideration of SCO’s compliance to the summary judgment phase of the case would merely compound the problems caused by SCO’s noncompliance with the Court’s orders and afford SCO a considerable, unfair, tactical advantage.
We believe, respectfully, that SCO’s failure to specify the 198 Items amounts to bad faith. However, willfulness alone is sufficient to justify the relief IBM seeks.
SCO, IBM is saying, not to put too fine a point on it, is playing dirty, and such conduct should not be rewarded.
What? You thought SCO would play nice?
I think the hearing for this is 04/14. I hope the judge guts SCO's claims. And then Darl McBride should be sent to PMITA prison to be used as currency in the cigarette trade.
PMITA?
Pound Me In The...um...Association.
Haven't you seen Office Space? :-)
Pound Me In The uh, netherregions.
LOL! yeah--I had forgotten that line, though.
Wow, IBM finally came out and accused SCO of bad faith.
Probably good timing since SCO has been doing it for so long, while IBM has played the silent victim, that IBM making the claim now should have some good impact.
As long as humanly possible. In case you didn't know, there's another case on hold until this one is over. It's been on hold for so long that the judge there was quite suprised that this is still going on, she'd pretty much forgotten about the case.
The Red Hat case I believe, death by a million cuts, I think SCO will bleed out first though.
NB4GE
I do believe that GE has conceded this case. When it was first filed, he (and B2K) thought that SCO actually had a case.
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