IBM Files Motion In Opposition to SCO's Motion to Compel Discovery

Friday, November 21 2003 @ 12:22 AM EST

Contributed by: PJ

IBM has now filed with the Utah court a Memorandum in Opposition to Motion to Compel Discovery, which you can get, as a PDF, here. It's number 79, the last on the list of IBM documents. We'll have it as text soon.

IBM's argument is simple: We have already provided a lot of what they are asking for or are willing to produce it, but on the rest, SCO can't ask for discovery until it tells IBM "what this case is about". Here is the Preliminary Statement from the Memorandum:

"SCO has moved to compel responses to six of its discovery requests. The motion is misguided and should be denied. As an initial matter, much of what SCO seeks IBM has already agreed, or is willing, to produce as soon as is practicable. More fundamentally, SCO's motion should be denied because most of what it seeks is irrelevant, overly broad and unduly burdensome, particularly in light of SCO's continued refusal to particularize its claims. Unless and until SCO tells us what this case is about, IBM should not be required to collects tens of millions of ages of documents and gather information that is very likely irrelevant to the case,"

The sad part is to realize that time, effort and money have been used to even have to say this. IBM is showing restraint by calling the motion "misguided". It's more like Alice in Wonderland objecting the the Queen's "Off with their heads!" It just shouldn't be necessary to point certain things out in the first place. It's elementary that the accused should be informed of what the "crime" is alleged to be, with enough specificity that the accused has the opportunity to defend. It's shocking that SCO simply refuses to tell anyone what code they allege is infringing. Maybe yesterday's article, "Progress is not Proprietary", with the interview with Chris Sontag and McBride tells the story? Sontag said that if they tell exactly what code they mean, the Linux community will remove the code immediately. But if their issue was really about protecting their IP, isn't that the correct solution, if there really is any infringing code, which many doubt at this point? And McBride let slip that the longer this case drags on, their damages increase (in his mind only, by the way; if they are responsible for the delay, the judge will not reward them for it, even if in some legal Wonderland they could ever be awarded damages in the first place).

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