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

Why is this still going on?!?

[Schezar]

I worked at IBM for a number of years as a sysadmin and developer. I can say with certainty that IBM isn't at all concerned with this case and never has been. In fact, the majority of IBM's employees aren't even aware that the suit exists, let alone that it's ongoing.

SCO periodically makes enough noise to get some new press, but beyond that the case is effectively dead. They really have no chance of actually winning, and the whole endeavor seems to be an elaborate pump and dump scam for their stock.

Riiiiight...

[Stephen H-B]

Pot, I believe you know Kettle?

Oh. Good. Grief.

[Rinzai]

Well, I guess we all knew it was just a matter of time before SCO intro'd the "dog ate my homework" excuse.

Next, I suppose, aliens from Planet Zontar in Zeta Reticuli will have stolen those very same computers from which the Unix and Dynix code was deleted.

As lawyers say.

[gowen]

"If the facts are on your side, bang on the facts.
  If the law is on your side, bang on the law.
  If neither the facts nor the law is on your side, bang on the table."

Does destroyed code matter?

[Dolda2000]

One would think, that if the code is destroyed, it won't be in Linux, and therefore no copyrights infringed, no?

Except...

[laptop006]

Unless this work was done *perfectly* it would be really obvious to anyone going through the source tree history (which SCO has), and even then is easy to verify by compiling release trees and doing a binary diff against them (well, decompiling both then diffing might be better).

SCO are flat out lying, whether just to the public, or to their lawyers as well. The only reason I think IBM are continuing with this is to get each and every claim SCO has specifically and individually struck down so when the house of cards finally does crumble they have no way to try it again.

Re:Except...

[MrDanielW]

IBM time traveled and destroyed the mountain of code they blathed on and on about. How else can you explain it?

Re:Except...

[Zontar_Thing_From_Ve]

SCO are flat out lying, whether just to the public, or to their lawyers as well. The only reason I think IBM are continuing with this is to get each and every claim SCO has specifically and individually struck down so when the house of cards finally does crumble they have no way to try it again.

Also, the longer this mess goes on, the more money it bleeds from SCO. Even the stock market is finally reluctantly starting to realize, years after Slashdotters, that SCO doesn't really have any ground to stand on. SCOX is currently valued at $2.51 a share, having lost about $1.50 or so in the past month. One source says that SCO is down to $18 million in cash. I think IBM is just trying to get them to run out of money by the time this is settled in IBM's favor so they won't be in a position to launch endless appeals of the verdict.

Re:Except...

[jackbird]

There will be no settlement, and all avenues of appeal are being asphyxiated through a rigorous campaign of I-dotting and T-crossing.

SCO will stand for Smoking Crater Organization (formerly and once again Caldera), and perhaps SEC Comin' Over as well.

IBM has more or less bet the company on the viability of Linux, and their reputation for following contracts and respecting copyrights must remain ironclad for them to be credible as an organization enterprises can entrust with their most vital data.

SCO has no case, and there are many signs that the lawsuit is a suicide attack to buy time for the release of Vista, but IBM is making absolutely sure there will be no stain on Linux going forward, no matter how implausible.

Darl's book "How to make big money fast"

[kimvette]

1. Buy lots of SCO stock
2. Falsely accuse IBM of giving Linux SCO code - code that SCO themselves released under the GPL in the form of Caldera Linux (later SCO OpenLinux)
3. Dump some of your stock
4. Receive practically every scrap of Linux and AIX documentation, source code, marketing literature, test reports, design docs, etc. that IBM ever produced
5. Dump some SCO stock
6. Realizing that you've been called on your bluff, accuse IBM of destroying alleged "evidence"
7. Dump more SCO stock

(months later, after IBM and Novell are eating SCO's remains)

8. Have fun being Bubba's bitch in federal prison

Wrong /. Icon!

[c0l0]

Is it just me missing the Monty-Pythonesque foot? :-(

It's actually all a cunning plan...

[miataninja]

Wouldn't surprise me if it eventually turns out that the lawfirm handling SCO's lawsuit are actually undercover Linux-zealots with a cunning plan who managed to convince SCO that they could actually win the case, then proceeded to produce a MASSIVE amount of billable man-hours which they from the start knew would eventually lead to SCO filing for bankruptcy. When the lawsuit is over, all proceeds from the lawfirm will be donated to promote Linux. Hmm, I'd actually like that!

Re:It's actually all a cunning plan...

[kfg]

When the lawsuit is over, all proceeds from the lawfirm will be . . .

spent on a turnip.

KFG

The obvious statement

[rewt66]

"Nothing to see here. Move along."

I mean... one developer deleted some files? Oh, the horror! But, um... I'm a developer, and I've been known to do that from time to time, not to destroy evidence, but just to clean up my drive.

We should also note that Forbes doesn't exactly have a great track record with respect to objectivity and accuracy on this case.

All in all, I think I'll refrain from assuming IBM's guilt just yet...

relevant excerpt

[avdp]

Here is the relevant excerpt from SCO's legal filing:

even after the Court ordered the source code to be produced, IBM failed to produce all versions of its AIX code, claiming that they cannot be located. Even more egregious was IBM's spoliation of evidence. Weeks after SCO filed its lawsuit, IBM directed "dozens" of its Linux developers within its LTC and at least ten of its Linux developers outside the LOC to delete the AIX and/or Dynix source code from their computers. (SCO Opp. Memo. (3/7/06) at 3.) One IBM Linux developer has admitted to destroying Dynix source code and tests, as well as pre-March 2003 drafts of source code he had written for Linux while referring to Dynix code on his computer. (Id. at 3-4.)

SCO has access to every version of AIX and Dynix released in recent and not so recent history and they can't identify any infringement in them. So now they're saying that the same code that were copied or cached on the developers' workstation must have had the smoking gun in it. That's a really really desperate argument. Clearly they're just trying hard to raise arguments - any arguments - that may lead to this devastating ruling to be reversed. I suppose I can't blame them lawyers for not leaving a stone unturned.

Re:relevant excerpt

[icensnow]

Maybe we need to read what IBM might have done a little more carefully than SCO's lawyers have. The claim in that quote isn't that IBM got rid of big chunks of its codebase, but rather that it told its Linux programmers not to have or refer to the Unix source codes. I.e., if you're working on Linux, please don't look at the AIX version of what you're coding, and get it off your hard drive so you aren't tempted to look. That could have been a reasonable response to the original suit -- make sure that old Unix code doesn't leak into Linux accidentally (like the way George Harrison got the tune for My Sweet Lord). Also, even if all versions of AIX are under subpoena, it doesn't seem illegal to tell some of your employees to delete their personal reference copies, but that's a lawyer question.

SCOX share price

[onkelonkel]

I note, with some amusement, that SCO shares, which have been hovering at the $4.50 mark for about 2 years, suddenly dropped to $2.50 about 10 days ago. Trading volumes are absolutely miniscule. I think we are seeing the end coming.

SCO Source Code Omission

[digitaldc]

First of all, I almost went blind and had trouble reading the article after seeing Steve Forbes' face pop up on my screen to tell me about how great he is.

FTA: Hatch, SCO's attorney, says SCO learned about the destruction of code when it took depositions from IBM programmers. This is the first time SCO has made the allegation in public, though Hatch says the claim was part of a motion SCO filed in March 2006, which has remained sealed.
Hatch says the allegation has become relevant now, because it helps explain why SCO could not meet demands to cite source code.

IBM declined to comment, citing a policy of not discussing ongoing litigation.


So, who here feels sorry for the SCO lawyers?

*Crickets*

Absence of evidence is not evidence of absence

[Anonymous Coward]

Are they going to use the Boondocks "Rummi Gambit"? It's similar to the "Chewbacca Defense" from SouthPark. It goes something like this:

SCO: "Judge we can't find any evidence because IBM detroyed it."
IBM: "How could we destroy evidence when they haven't requested it or know what said evidence might be. Judge their case is totally without merit. They lack the evidence to proceed. We motion to dismiss."
SCO: "The absence of evidence, is not the evidence of absence."
IBM Lawyer: . "Judge IBM has provided all evidence they have requested. How can we provide items that are not known even to SCO. They are on a fishing expedition. We request that SCO make their evidence requests known. We shouldn't be made to provide items that are not identified and unknown. It appears that what SCO wants is unknown to even themselves."
SCO: "There are known knowns, and there are known unknowns, but there are unknown unknowns. Things that we don't know that we don't know."
IBM Lawyer: "Motion to dismiss your honor."
Judge: "Motion granted. Case dismissed."

Re:Absence of evidence is not evidence of absence

[hey!]

You don't pay laywers the big bucks to argue like that. They should be able to keep the near corpse of this case running a few more years at least.

IBM: "How could we destroy evidence when they haven't requested it or know what said evidence might be. Judge their case is totally without merit. They lack the evidence to proceed. We motion to dismiss."

SCO: "The absence of evidence, is not the evidence of absence."

Judge: "But you can't sue without evidence. That's what absence of evidence is."

SCO: "Yes, but you can sue in the absence of evidence if you have evidence of evidence."

Judge (frowning): "Run that by me again?"

SCO: "Absence of evidence is prima facie evidence if there is evidence of evidence."

Judge (frowning counting on his fingers): "But absence of evidence in the face of evidence of evidence is evidence that the evidence of evidence isn't errr... really evidence."

SCO: "No, absence of evidence in the face of evidence of evidence is not evidence of absence but evidence of malfeasance"

Judge (to IBM laywer): What do you say to that?

IBM Layer: Oh, I agree.

SCO(Trimumphantly): See! He admits it.

Judge: Admits what?

SCO: That they destroy the evidence of whihc the evidence of evidence was evidence of.

IBM: I admit no such thing.

Judge: What? You just said you agreed!

IBM: I agreed that absences of evidence in the presence of evidende of evidence evidences malefeasnce.

Judge: Isn't that the same thing?

IBM: No, because as my learned colleage is no doubt aware, I have not stipulated whether the evidence of malfeasnce pertains the to absence of evidence, or the absence of evidence of evidence.

Judge (working it out): Hey! What exactly is the evidence of evidence we've been talking about

SCO (looking at his feet): mumble

Judge: Pardon?

SCO: I said, they destroyed that too.

Judge (to IBM): What do you say to that.

(IBM is a bit preoccupied and does not respond)

Judge (to IBM): Excuse me, counsellor, but I asked you what you though of plaintiff's assertion that the absence of evidence of evidence is your fault?

IBM: I beg your pardon your honor. I was measuring another fathom of rope for my learned colleague.

Getting stupid

[SnarfQuest]

If the code was copied into Linux, then it would be in one of the Linux releases. Since these are available from multiple sources, the fact that IBM deleted their copies wouldn't matter.

If it was code that never reached Linux, then what's wrong? Are they complaining that IBM didn't copy code into Linux?

If true, IBM discovered some coders copying from the Unix source, and says "don't do that", and removes the offending code before it ever got out. It apparently never made it to Linux, or SCO would be able to show it in the Linux listings. Sounds like they are complaining that IBM didn't allow the Unix source to be copied into Linux. It just sounds like the IBM code police were doing their job,

So, SCO's case now seems to be: They could have copied Unix code into Linux, but they didn't. Anyway, we want money.

SCO recap....

[Anonym0us Cow Herd]

As I posted elsewhere earlier...

Now that I have finally managed to stop laughing, let me see if I understood this correctly.

SCO had such a strong case and so much evidence of "millions of lines of code", and "truckloads" of code from their "deep dive" proving that "the DNA of Linux is comming from UNIX", etc. that they were "ready for trial" in 2003 and they "don't need any discovery".

SCO needs all versions of AIX. Not only that, but they also need every unreleased internal iteration of code from CMVC, all programmer's notes, etc., at great expense.

SCO could not disclose specific code for M&C because they couldn't know what code was in the minds of IBM engineers when IBM disclosed the M&C.

IBM destroyed the evidence. So SCO cannot show what code, or M&C was copied. This, even though SCO has access to ALL of the code, and Linux code is publicly available.

No doubt, it must somehow be IBM's doing that SCO is unable to answer IBM's interrogatory asking for SCO to identify lines of Linux code that SCO claims to own rights in.

So in the end...

• Linux code is out in the open
• SCO cannot point to _anything_ specific in Linux
• Some vague nebulous blob of M&C was disclosed

Of the vague nebulous blob of M&C...

• It must be in Linux...somewhere (trust us on this)
• It must be IBM that disclosed it (because they have deep pockets)
• The disclosure (by whoever, however) must have been improper, somehow (otherwise how will we make a profit?)

Because of IBM's unfair, unethical and illegal actions, SCO is unable to...

• describe exactly what the M&C is
• point to where it is
• identify where it came from
• show that it has been disclosed
• show how (or who) disclosed it
• prove ownership of it

So in conclusion, ladies and gentlemen of this fine Utah jury, IBM is guilty. They did it. Trust us. Now do the right thing. Award Billions in damages to the plaintiff please.

Thank you.

Re:Anyone else...

[ShibaInu]

Just an aside, Brent Hatch appears to be the son of Senator Orrin Hatch. http://www.findarticles.com/p/articles/mi_qn4188/i s_20030601/ai_n11398911 would seem to bear that out, unless there is another Utah lawyer named Brent Hatch who isn't Sen Hatch's son.

Not sure if it means anything, but I thought it was interesting.

Re:SCO

[TommydCat]

Since IBM purposefully destroyed evidence, SCO wants a ruling in their favor that it's ok to purposefully manufacture evidence. That would balance things out, right?

Mod Parent Up - IBM was keeping itself honnest

[HighOrbit]

That was exactly what I was thinking. IBM wanted to make sure its own house was clean, so it told its Linux developers not to have any versions of the UNIX source trees on their machines.

As far as deleting "draft" linux code, that might have been a case of playing it safe and making sure that nothing written by a developer with concurrent access to UNIX was contributed to their Linux projects (i.e. oh, you had access to UNIX source? Sorry we can't use your patches, please get rid of them and don't come back until UNIX is off your box.)

Re:Anyone else...

[ILikeRed]

Orrin Hatch has a decent challenger from what I hear - you (or anyone else) can vote to get his challenger extra campaign funds here. Vote for Pete Ashdown (UT) to get the campaign funds. (I'm a libertarian - but I'd vote for just about anyone or anything if it meant getting rid of Orrin Hatch.) Use an email address you can get rid of or filter, because it will go into their database.