IBM Letter to SCO - Exhibit A to Memorandum in Support of 1st Motion to Compel

Tuesday, December 30 2003 @ 10:55 PM EST

Contributed by: PJ

Whew. There has been such intensive motion practice in the SCO story, even my titles are getting complex.

Here, as promised, is the first exhibit, Exhibit A, attached to IBM's Memorandum in Support of its first motion to compel discovery. Again, this is history, but it certainly will come up again at trial, so it's good to have it in our archives. This is part of the record Judge Wells had in front of her that helped her to pretty much decide this motion in IBM's favor before she entered the courtroom on December 5, although she gave SCO a chance to change her mind. They were unable to do so.

It is a letter from IBM to Darl McBride, and it falls in the "hope springs eternal" bucket, asking as it does back in April for SCO to tell IBM what their "crime" supposedly is. Or, it's an example of IBM getting a few legal points covered and on the table for future use. You decide. For example, you might notice that they point out that under the contract, they were to be given a certain number of days' notice of any breach and an opportunity to cure:

"As you acknowledge in your letter to Mr. Palmisano, the provisions to which you refer would entitle IBM to a period of no less than 100 days, from proper notice, in which to cure any alleged breach. Although your letter and the lawsuit filed by Caldera Systems, Inc. (without notice to IBM) state that IBM has breached the Agreements and otherwise violated the law, they do not specify IBM's alleged misconduct."

See how much they managed to stuff into two little sentences, including SCO's "acknowledgement" in their previous letter that IBM was supposed to get such notice? Then they carefully itemize everything they believe SCO should have put in their notice. The one they say they didn't get. Did you think this was "just" a letter? More like "en garde". Or like the Princess Bride's: "My name is Inigo Montoya and you killed my father. Prepare to die."

Never acknowledge anything to an IBM attorney. They will use it. That's my advice. But, hey, what do I know? I'm just a paralegal.

I don't think SCO listens to me, anyhow. They flunked utterly all my helpful GPL Summer School classes.

Thanks to Frank, once again, for trucking to the court to pick up paper documents and making them available in digital form and to Henrik, for transcribing as text.

************************************************************************

April 2, 2003

VIA AIRBORNE EXPRESS

Mr. Darl McBride
President and Chief Executive Officer
SCO
[address]

Re:

Software Agreement Number Soft-00015
Sublicensing Agreement Number Sub-00015A
Substitution Agreement Number XFER-00015B
Letter Agreement dated February 1, 1985
Amendment X dated October 16, 1996

Dear Mr. McBride:

This responds to your letter of March 6, 2003, to Sam Palmisano.

Contrary to your assertions, IBM does not believe that it has breached any of its obligations to SCO, either under the agreements to which you refer (the "Agreements") or under applicable law. Moreover, IBM does not believe that the license rights granted under the agreements are terminable.

I write to ask that you inform IBM specifically what SCO contends IBM has done in violation of its obligations to SCO, and what you contend IBM should do to cure such violations. As you acknowledge in your letter to Mr. Palmisano, the provisions to which you refer would entitle IBM to a period of no less than 100 days, from proper notice, in which to cure any alleged breach.

Although your letter and the lawsuit filed by Caldera Systems, Inc. (without notice to IBM) state that IBM has breached the Agreements and otherwise violated the law, they do not specify IBM's alleged misconduct. Please advise me as soon as possible of the specific acts or omissions by IBM that you allege constitute a breach of the Agreements. In particular, please specify:

(1) any products, code, files, trade secrets and/or confidential information that SCO believes IBM has improperly used, transferred, disposed of or disclosed;
(2) the ways and specific instances in which you allege IBM has improperly used, transferred, disposed of or disclosed any products, code, files, trade secrets and/or confidential information; and
(3) the steps that SCO believes IBM is required to take to cure the alleged breaches and injuries about which SCO complains.

Sincerely,

[signature]
Ronald A. Lauderdale
Vice President and Assistant General Counsel

Copy to:
Evan R. Chesler, Esq.
David Boies, Esq.

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