Wells Grants in Part IBM's Motion to Limit SCO's Claims! In *Large* Part.

By Pamela Jones
Groklaw

June 28 2006

Initially, IBM sought to limit 201 of the 294 items identified by SCO in its Final Disclosures. After further clarification by SCO, SCO's abandonment of one of the items (No. 294), and IBM's acknowledgment that it initially improperly included item no. 2, 198 items remain in dispute.

What's left in the case from the items in dispute? Only item numbers 23 (about "negative know how" regarding EES, an "error event subsystem" in Dynix/PTX), 43 ("learning from TCP failures to help networking and storage for Linux", if you can believe anything so ridiculous), 90 ("avoiding a logging event that caused problems in PTX), 94 and 186-192 (about Dynix again). That's it. That's all the case is about now as far as the challenged items go. Regarding Linux, all that is left is someone figured out how to learn "from TCP failures to help networking and storage in Linux"? My eyeballs are bugging out. What an absolute farce. One thing is certain. There will be no billions of dollars in damages, even if SCO could prevail on these puny items. There are, of course, other items still in the case from the list that IBM didn't challenge, and those will be dealt with, IBM has already stated, in summary judgment motions, so I don't mean to suggest the case is over. But it just got a whole lot smaller. None of the items are in or out based on the merits, by the way. This is a sanction against SCO for failure to show the code. The Linux community has been asking SCO from day one to show the code it claims is infringing. It wouldn't, other than the SCOForum debacle. We all thought it would do it in a courtroom. With regard to the items that just hit the trash can, it wouldn't even do it there. And now, it has been sanctioned.

She granted the motion, in large part, because SCO's failure to provide specificity on the numerous items now no longer part of this litigation "was willful":

The sanction IBM seeks -- precluding SCO from using certain alleged misappropriated items because of a lack of specificity -- is very serious. As outlined in greater detail below, the court finds that SCO has failed in part to meet the level of specificity rrequired by this court's orders and the order entered by Judge Kimball. It is also apparent that SCO in some instances failed to meet the level of specificity it required of IBM. Further, this failure was willful under case law and prejudicial to IBM. Therefore, the court GRANTS IBM's Motion to Limit SCO's Claims Relating to Allegedly Misused Material in Part.

She writes: "Certainly if an individual was stopped and accused of shoplifting after walking out of Neiman Marcus, they would expect to be eventually told what they allegedly stole. It would be absurd for an officer to tell the accused that 'you know what you stole I'm not telling.' Or, to simply hand the accused individual a catalog of Neiman Marcus' entire inventory and say 'its in there somewhere, you figure it out.'"

Ah! Finally! Somebody noticed that SCO has stubbornly refused to show the code from day one. And now it has cost it dearly.

More quotable quotes, to tide you over until the full transcript is done:

As repeatedly noted by IBM, concurrent with SCO's court filed allegations has been SCO's siren song sounding the strength of its case to the public.

Examples...many examples. It's clear Judge Wells has read them all. She knows all about SCOForum and the code display. She knows about the MIT deep divers who then disappeared. She tells the whole story, and then she tells the story of the history of the case.

Under Rule 37(c), a court, she points out, may enter sanctions for failing to disclose required information, if the party lacks "substantial justification" for failing to disclose required information, and that sanction is the party will not be permitted to use as evidence at a trial, or a a hearing, or in any motion "any witness or information not so disclosed."

SCO tried to argue that IBM would have to show bad faith. Wells disagrees. "Willfulness is sufficient." Then she educates SCO on the nature of the motion. "IBM's motion is not essentially about the merits of SCO's case but about 'whether SCO complied with IBM's discovery requests and the Court's orders.'" Then under the wonderfully titled header, "Methods and Concepts and Specificity," she writes:

A large portion of SCO's alleged misappropriated items are methods and concepts. "Of the 294 Items in the December Sumission, about a third are cases of misused code, and about two-thirds are cases of misused methods and concepts." [Quotes both experts, Davis and Rochkind.] After considering the expert declarations and the parties' memoranda, the court finds that methods and concepts are at least on some basic level comprised of source code. The court agrees with mr. Rochkind, SCO's expert, that methods and concepts can be discussed without disclosing source code. But it is possible, and even preferable in many instances, to provide the code behind methods and concepts. In fact, Mr. Rochkind's own publication Advance Unix Programming (2d ed. 2004), provides many examples of code when discussing "fundamental concepts."

Closely related to the methods and concepts question is in this court's view the heart of the dispute -- what level of specificity is required by the court's orders? If the court's orders required the production of specific source code for alleged misappropriated items, including methods and concepts, then many of SCO's arguments and much of Mr. Rochkind's declaration miss the mark. If however, the level of specificity did not require source code then IBM has fired a wayward shot off the starboard bow in its attempt to sink SCO's ship.

IBM argues that SCO has failed to identify the allegedly misused material "with the most basic detail." Although the court only specifically said "lines" in its orders, IBM argues that it was also necessary to provide the version and file information for SCO's alleged misappropriate items. Otherwise, IBM is left to undertake a "massive analysis, potentially of every single version, file and line of Unix System V code, ... AIX and Dynix, and ... Linux."...

In direct contrast to IBM's argument, SCO argues that it has met the level of specificity required by the court's orders. Indeed, SCO states it has provided "over 450,000 lines of source code and hundreds of confidential methods and concepts."...

Finally, SCO alleges IBM's complaints about specificity are unwarranted because of the "roadblocks IBM has placed along the way to hinder SCO [in] identifying the particular misused material." For example, SCO says IBM resisted providing the CMVC and RCS systems which contain AIX and Dynix materials along with other information. In May 2005, the information was produced pursuant to court order but "IBM has been unable to produce all versions of its AIX source code, claiming that they cannot be located."

In considering the parties' positions the court first looks to the language in SCO's own requests and the language of the court's orders.

[Provides quotations from SCO interrogatory requests and court orders telling SCO what to provide.] Based on the language off the orders, and SCO's own requests, the court finds that SCO was to provide source code, i.e. version, file and line information, for its alleged misappropriated items. Although the court did not specifically say version and file in its orders, the court finds that this information was inherent within the court's ordering of "specific lines." The court agrees with IBM's argument that line information without version and file information is not very specific and makes identification of what is at issue much more difficult.

This court further finds that Judge Kimball intended the same level of specificity in his Julyl 2005 order which provided what amounted to a date certain for the parties to define their case. Judge Kimball's order was entered after this court's orders which dealt with specificity. And Judge Kimball did not provide a different definition of specificity in his order. Further, in an earlier decision, Judge Kimball in esssence rebuked SCO for a lack of specificity. "Nevertheless, despite the vast disparity between SCO's public accusations and its actual evidence -- or complete lack thereof -- and the resulting temptation to grant IBM's motion, the court has determined that it would be premature to grant summary judgement. . . " Given this background this court believes that Judge Kimball intended the same level of specificity as this court did, to wit, version, file, and line information for misappropriated items.

Most important to the court however, is the fact that SCO itself sought this level of specificity by asking for "identification of the specific lines and portions of code" for all alleged "trade secrets or confidential or proprietary information, whether computer code, methods or otherwise." Given SCXO's track record in this case, the court is certain that if IBM had simply provided line information without version and file information for "methods," SCO would have filed motions to compel complaining about IBM's lack of specificity. The court cannot find any reason why SCO should not be held to the same level of accountability that SCO held IBM to. Thus, SCO should have supplied not only line but version and file information for whatever claims form the basis of SCO's case against IBM.

In further support of this court's finding that version, file, and lilne information was the required level of specificity the court points to the testimony of SCO's own Chief Technology Officer, Sandeep Gupta. Sandeep Gupta testified about the importance of having version, file and line information in respect to methods and concepts.

Q: Okay, How would you determine whether a particular description was specific enough to describe an aspect of System V as a method?
A: I have to look at the source code.
Q: Okay. What would you do if you looked at the source code?
A: I look at various steps that are taken, specific for that particular method."
Q: Okay. So in order to determine what a particular method or concept is, you would actually have to look at the source code?
A: In some cases, yes.
Q: . . . would you have to look at the source code to be able to accurately describe a method or concept in UNIX?
A: That's my opinion, yes.

Finally, the court notes that the deposit requirements for copyright registration also support this court's decision....

Based on the foregoing the court finds that methods and concepts can be identified in source code and that under the court's orders SCO was required to provide the source code behind them.

SCO approved the orders as to form. SCO also never sought further clarification of the court's orders. And in fact, from the start of this case SCO has repeatedly sought source code on the grounds that it was necessary to substantiate its case. On more than one occasion SCO has argued that it could not respond to IBM's requests without further production from IBM. Thus, it really shoujld come as no surprise to SCO that they were required to produce version, file, and line information to substantiate their claims.

III. Willfulness

A willful failure has been defined as "any intentional failure as distinquished from involuntary noncompliance. No wrongful intent need be shown." In contrast, "The courts that have concluded that the failure to comply with a discovery order was not willful have emphasized the inability of the eparty to comply with the order."

There is no evidence before the court to indicate that SCO lacked the ability to comply with the court's orders. In fact, given SCO's own public statements outlilned in part supra, it would appear that SCO had more than enough evidence to comply with the court's orders.

In December 2003, near the beginning of this case, the court ordered SCO to, "identify and state with specificity the source code(s) that SCO is claiming form the basis of their action against IBM." Even if SCO lacked the code behind methods and concepts at this early stage, SCO could have and should have, at least articulated which methods and concetps formed "the basis of their action against IBM." At a minimum, SCO should have identified the code behind their methods and conceptws in the final submission pursuant to this original order entered in December 2003 ane Judge Kimball's order entered in July 2005.

OK. *Now* you're happy, huh?

: )

05:52 PM EDT

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