SCO Accuses IBM of Destruction of Evidence

Udo Schmitz writes "According to an article at Forbes, SCO claims that IBM destroyed evidence by ordering programmers to delete copies of code that could have helped SCO prove its case. SCO's attorney Brent Hatch says that 'one IBM Linux developer has admitted to destroying source code and tests' and that they didn't mention this in public, because it only became relevant now, and that 'the claim was part of a motion SCO filed in March 2006, which has remained sealed'." From the article: "IBM declined to comment, citing a policy of not discussing ongoing litigation. In her sharply worded ruling, Wells criticized SCO's conduct in the case and seemed to indicate she was annoyed with the company. 'I don't know if that's true or not, but that's a question I'm asking myself,' Hatch says. Hatch concedes the Wells ruling represented a setback for SCO. But he says SCO still has a strong case. "

Comments

Re:New company idea!

[DarkSarin]

They would only have to reveal the code under NDA to independent reviewers mutually agreed upon by both parties. If you did that, you still wouldn't get access to the code.

Furthermore, the countersuit when you lose (and presumably you would if there was not any code from linux) would not be worth the risk. Let's do the math.

Probability of Winning: .1 (and I'm being generous)
Gain of winning: $100,000,000 (again, making up numbers, but lets just assume)
Total value of winning: .1 * 100,000,000= 1,000,000

Probability of Losing CounterSuit: .85 (just for arguments sake: note it is _not_ the opposite of the probability of winning--just because you lost the suit doesn't guarantee that they will win the countersuit)
Gain of Losing Countersuit: -$10,000,000
Total value of Losing Coutersuit: .85 * -10,000,000= -8,500,000

Adding the suit, we see the overall value of pursuing this is about -7.5 million dollars. Of course I did just pull numbers out of a warm dark place, but you get the picture: there is no value to engaging in the suit, and significant risk. Other potential outcomes and costs should also be considered, such as:

P of Losing: .9
Gain of Losing: -$5,000,000 (and this is likely to be low, but it is essentially court costs plus lawyer fees and a few other things)
Total value of Losing: .9*-5,000,000= -4,500,000
This puts the total value of the action at -12 million.

P of Winning Countersuit: .15
Gain of WInning Countersuit: -$5,000,000 (note that this is also negative because you are still going to have to pay your own lawyers, court costs, provide documents etc).
Total value of Winning Countersuit: .15 * -5,000,000 = -750,000

The total value of the action is now at -$12.75 million, with other potential outcomes (most of them negative) still available (but not readily coming to mind).

Even at all that, there is the potential for appeals, all of which lower the probability of you winning, if only by a little. In the end, there is little potential for a positive outcome.

This is why these tactics can't be used against proprietary vendors. Of course, someone who is better at law might adjust my numbers, but the idea is the same, and the overall risk is far above any gain.