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SCO Ordered to Produce Evidence
harmless_mammal and others wrote in with news from the SCO-IBM hearing in Utah today - apparently the judge has ordered SCO to respond to IBM's discovery requests within 30 days. IBM is asking SCO to tell IBM precisely what code it is alleging is infringing, and to date SCO has failed to show any evidence whatsoever. Some reports from the hearing are at Groklaw, which is already slow under the load. If SCO continues to fail to produce the evidence they've claimed they have, the judge will likely be very displeased, perhaps dismissing the lawsuit entirely.
From Groklaw:
;)
First Report from Grokker Inside Hearing: IBM Wins Both Motions to Compel Friday, December 05 2003 @ 02:30 PM EST
Our first report from a Groklaw volunteer, sam, who attended the court hearing is that IBM won both of its motions to compel and SCO's motion was set for a later date. Here is what sam is telling us, and it's subject to further information and confirmation as more news arrives. We have several attending and I'll do a followup, but this is the first word. Here is what sam is telling us:
"Just returned from the hearing.
"Needless to say there was blood all over the floor on the SCO side of the aisle none on the 'left' side.
"Judge granted both IBM motions to compel, gave SCO thirty days to comply 'with specificity' and suspended further discovery. Did not rule on the SCO motion until next hearing scheduled for Friday, Jan 23 and 10:00 am.
"SCO did say that they will be filing a complaint within days on copyright violations.
"More to come"
So it looks like they have 30 days to finally tell us what code they are talking about "with specificity". Finally.
like the little bitch that he is
At least the outcome wasn't as dire as predicted here.
PJRC: Electronic Projects, 8051 Microcontroller Tools
IBM does not have to respond to any more of SCO's interrogatories until and unless SCO coughs up and SCO's motion to compel is heard in late January.
Also, SCO admitted that IBM didn't put any Sys V code in Linux. They are claiming that IBM misappropriated Unixware trade secrets they learned in the Monteray project. They are also claiming that IBM had a contractual obligation to keep RCU, and NUMA technologies confidential. Expect that argument to be thoroughly demolished by IBM's crack legal team as opposed to SCO's crack-smoking legal team.
A big win for IBM in this legal chessgame.
I have discovered a truly marvelous sig, unfortunately the sig limit is too small to contain i
Yes, I'm thinking that this is finally the beginning of the end of all this non-sense.
Let's hope so. SCO needs to go off into the sunset and never be heard from again. If you own SCO stock, I'd advise dumping and running now. Or perhaps shorting the stock.
"Music is everybody's possession. It's only publishers who think that people own it." - John Lennon.
See this. It has to be related to the order to produce evidence?
IANAL, but I believe in cases were trade secrets are required to come out for the purposes of having a fair trial the Judge can have that evidence sealed so that it doesn't become part of the public record.
X(7): A program for managing terminal windows. See also screen(1).
This judge cannot dismiss the case because this is NOT the judge that will try the case. The trial judge can take a recommendation from this judge, which is possible.
The only thing that remains is what is SCO going to produce within the next 30 days.
Banjo - The more I know about Windoze, the more I love *nix
If you own SCO stock, I'd advise dumping and running now.
Which would be very wise -- the news wires don't appear to have this info yet. SCOX is down only 1.44% currently, while the facts of these decisions should mean a much harsher fall off. (Note, I don't have access to the "insider" wires, which typically have stuff long, long before it makes it to the general press).
Or perhaps shorting the stock.
Looks like you'd be joining the party... back in June/July under 5% of SCOX was shorted. According to Yahoo! Finances, they're up to 1.62M shares shorted (as of 10-Nov-03), which is slightly over 21% now. More impressive is that last month there were only 926K shares shorted -- a 75% increase in the number of shares shorted. Looks like there's some serious players who want to short it.
Note - there's still no option market on SCOX. They're not big enough or heavily traded enough. Don't expect there to be one either. Unless, for some ungodly reason, SCO actually wins.
hey is anyone helping our major source of reasonable information????
Well, this being federal court, the most common punishment for refusal to comply with discovery after an order compelling is to assess financial sanctions against the offending party's counsel[*]. I hope Boies et al really DID get millions up-front in addition to their 20% stake in any buy-out or settlement
[*] The theory being that it is an attorney's duty, to the court, to assure that his client plays by the rule.
utter rubbish
I'm sure this isn't the intention, but it is essentially a deliberate DoS.
Ease up. GrokLaw is holding on just fine. It has been /.'ed so many times lately (37.000 hits in an average wave) it'll survive just about anything. Runs Apache on Linux, of course :)
Pamela is the right person at the right place at the right time - with the right motivation. She's holding up great as well. Probably she's the one single person to have brought in most benefit in the whole thing, she's making it obvious to all that this is a crap case in the first place :) Even the IBM legal team is quoting GrokLaw. In court, that is. Rock on!
I'm in a Unix state of mind.
It basically means what IBM defined it to mean in their requests for production -- if I remember correctly, to identify the version of the OS or kernel the code is in, the file name, and line number(s). SCO's famous list of SMP (etc) files did not identify the version or line numbers, and the file names were from Linux rather than SysV as IBM requested. In other words, SCO produced an absolutely worthless list and gave it to IBM, then argued they had satisfied their obligations as plaintiff/counter-defendant.
IANAL, but I believe in cases were trade secrets are required to come out for the purposes of having a fair trial the Judge can have that evidence sealed so that it doesn't become part of the public record.
But they're claiming its in the linux source.. so technically its already public
wud
Also please keep in mind that a Motion to Compel is generally a rare thing. Federal and most state laws require that there be transparency between parties in a court case when it concerns evidence. "Surprise witnesses" and "I just found this evidence" your honor happen mostly on TV - not in a real court of law. No evidence - no case - no trail. Hope it pans out that way.
MINUTES OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
JUDGE: Hon. Brooke Wells
COURT REPORTER:
COURTROOM DEPUTY: Amy Pehrson
DATE: December 5, 2003
CASE NO. 2:03CV294DAK
SCO v IBM
APPEARANCE OF COUNSEL
Pla Kevin McBride, Brent Hatch
Dft David Marriot, Todd Shaugnessey
MATTER SET: Motion to Compel
Counsel for both parties present. The Court hears arguments re: Motion to Compel
(#68). Court GRANTS motion. Plaintiff is to provide responses/affidavits within
30 days of the entry of this order. All other discovery is to be postponed until
the order has been complied with. An order reflecting this ruling is to be
prepared by counsel for defendant. A motion hearing is scheduled for 1/23/04 at
10:00 a.m. Court is adjourned.
Case Title: 2:03CV294DAK, SCO v IBM
10 minutes working on a sig. What a waste.
I'm sure I don't know any more about the law than you do, but Lawrence Lessig does. And he seems to think that McBride's claims are preposterous. Another source for (para)legal opinions on this nonsense is Groklaw, where even Linus Torvalds has something to say about the latest McBride open letter.
Reality is defined by the maddest person in the room
As for IBM's lawyers, I don't know the details of IBM's internal structure, but generally speaking in-house counsel handle thinks like transactions and reviewing licensing agreements. Big-time litigation is contracted out to firms that specialize in litigation. You may be thinking that IBM is probably involved in enough litigation to justify hiring its own trial lawyers, but think about how many jurisdictions they would have to be licensed in to be worthwhile (it's very unusual for lawyers to be licensed in more than a couple states -- bar exams just aren't that fun, not to mention the yearly continuing education requirements for each state). I do know some details about another behemoth business entity, Wal-Mart, and its legal department handles contracts and real estate, and that's pretty much it.
The bigotry of the nonbeliever is for me nearly as funny as the bigotry of the believer. - Albert Einstein
The volume is astronomical [...]
WTF are you talking about? The volume today was pretty much nonexistant, about 2/3:rds of the average (234,629 versus the average of 323,545), though pretty normal for a friday.
It wasn't anywhere near astronomical. And also, the news came directly from the court to Groklaw via 'Sam' during the last half hour of trading or so.
No, the interesting things lie ahead of us. FUD during the weekend, possible stock-movement on Monday -- but remember, there isn't a whole lot of float on this one.
Belief is the currency of delusion.
8. Urge Free Software and Open Source developers to drop support for SCO Unixware across all softwares being developed. GNU Software (GCC, Emacs, libraries, autotools, base utils), Samba, Apache, OpenSSL, OpenOffice, XFree86, Gnome, KDE, etc.
The GCC 3.4 snapshots have a note in the root directory (README.SCO), which basically says "SCO is a bunch of jerks, and we're considering dropping support for SCO Unix".
While I've never used Unixware, by all reports it's so totally broken that I figure a) it might simplify the build magic quite a bit to drop the bitch anyway, and b) who the hell uses Unixware? Makes much more sense to support something like QNX than Unixware (I would add that a lot of GNU stuff *doesn't* support QNX). Of course that would be up to the developers of each project. But if, say, GNU tommorow said "All GNU projects will from now on explicitly not support Unixware"... well, I would be amused.
I wouldn't call 300k shares per day astronomical volume. RedHat averages 10x the volume, 20x for IBM. SCOX is a glorified penny stock.
Judge Tells SCO: No, *You* Have to Show the Code First
Friday, December 05 2003 @ 04:13 PM EST
The big news from the hearing today is that Judge Wells told SCO that they have to go first. They have to show IBM what code they are alleging is infringing. All during discovery, SCO has been telling IBM they had to show all their code first, and then SCO would identify the alleged infringements. IBM kept telling SCO in reply that they had the burden, as plaintiffs, to at least tell IBM what code was involved. Today the judge told SCO that IBM was right. SCO has 30 days to comply. IBM doesn't have to turn over anything until they do it. The judge's order will be filed Wednesday, and SCO has a month to show the code. They can't force IBM to go first. That dance is over.
Cody Hilton of Guru Labs , a Utah Linux training company, attended the hearing, and the second big piece of news is that David Boies didn't show up. Darl's brother represented SCO. His brother is Kevin McBride, the same person we noted who was involved in writing the Open Letter yesterday.
Why Boies didn't show up is hard to understand. And then again, maybe not. Brent Hatch was there and so was Darl. There was no media presence at all. Or more accurately, there was a lot of press there in the building but they were all there to cover the Olympic bribery trial , which got thrown out by the judge. Nobody in the courthouse was interested in talking to Darl today, according to my eyewitnesses, to the extent that they noticed, and they were looking.
Cody talked to him, though, after it was over. He asked him why he was there, and Darl said he just wanted to get a feel for it. Cody asked him what he thought about how it went, with IBM winning both motions. Darl said he expected it. Cody rode in the elevator with IBM's Marriott and asked him how he felt about how things went. Marriott said, "We're happy. Everything went as we'd planned. We're happy with the decision."
For IBM, it was David Marriott and Todd M. Shaughnessy. There were about 15 people there sitting in the gallery, including one woman, who rumor had it might be the patent attorney SCO hired and mentioned as possibly having a conflict of interest. But that is only a rumor.
The room was small, with maybe seats in the gallery for about 20 people, but no one was denied entrance. There were seats available.
Cody says that when the judge entered, she told them that it was her inclination to grant IBM's motions, and then she let both sides speak. First, SCO's Keven McBride spoke for about 40 minutes. The judge interrupted a few times and to Cody, it seemed like the presentation was hard to follow. Basically, he was arguing that IBM should hand over code first, so SCO could go over it and then categorize the violations as to whether they were copyright violations, trade secret, etc. Then Marriott spoke for IBM. He spoke for only 20 minutes. Cody described it as clear, crisp, easy to follow, easy to understand. He cited a case, Xerox Corp. v. International Business Machines Corp., he believes, which you can find mentioned here, in footnote 3 of IBM's Memorandum in Opposition to SCO's Motion to Compel Discovery, where the judge ruled like this:
"[3] See also Xerox Corp. v. International Business Machines Corp., 64 F.R.D. 367, 371 (S.D.N.Y., 1974) ('[Plaintiff] should be able to identify in detail the trade secrets and confidential information alleged to have been misappropriated by [defendant]. Clearly until this is done, neither the court nor the parties can know, with any degree of certainty, whether discovery is relevant or not; and it is doubtful whether [plaintiff] can undertake a meaningful discovery program'.)"
The hearing lasted an hour and a half.
Frank Sorenson was there too and he also reports similarly:
"Judge Wells came into the courtroom, and announced that she had read all the filings and the relevant case law, and it was her intention to grant IBM's Motions and postpone any further Discovery until this matter was
1. you probably won't find this, though it could happen
3. won't compile
6. won't compile
Don't worry, I think your code is safe from copying by anyone.
XML causes global warming.
You receive interest. You sold the stock, and money came from that. That money is collecting interest.
Comment removed based on user account deletion
They already tried that... dumped a million printed pages of Linux Kernel source on IBM's doorstep and said "It's in there!"
In this ruling the judge basically said "No really, where in there is it?" The 30 days part was also a smack down of SCO because a million printed pages is obviously a delaying tactic. It would have cost SCO far less to deliver a single CD-R. They have a phrase for it... "Malicious Compliance" or something like that -- You know where you pay a $2500 debt in pennies so that you greatly inconvenience the creditor - that kind of thing.
Education is a better safeguard of liberty than a standing army.
Edward Everett (1794 - 1865)