It looks like SCO did not fully comply with the court's order by the deadline after all.
SCO has posted a Notice of Compliance as a PDF on its web site, which states that they have filed "Supplemental Responses". The notice claims they have fully complied with the court's order with respect to answering Interrogatories 1-9, 12 and 13, but they reserve the right to supplement after they get more code from IBM.
However, they say they have *not* produced all the documents requested by IBM, specifically files of certain directors and officers. Because of the holiday, they didn't have time to fully review them yet. That is another way of saying they have not fully complied.
If you look at the order, answers to Interrogatories 1-9, 12 and 13 were not all that they were required to produce. Here is the rest of the list:
"3. IBM is to provide SCO a list of requested documents as stated in IBM's First and Second Requests for the Productions of Documents and SCO is to produce all requested documents.
"4. To identify and state with specificity the source code(s) that SCO is claiming form the basis of their action against IBM. This is to include identification of all Bates numbered documents previously provided.
"5. To the extent IBM's requests call for the production of documents or are met by documents SCO has already provided, SCO is to identify with specificity the location of responsive answers including identification of the Bates numbered documents previously provided if applicable.
"6. If SCO does not have sufficient information in its possession, custody, or control to specifically answer any of IBM's requests that are the subject of this order, SCO shall provide an affidavit setting forth the full nature of its efforts, by whom they were taken, what further efforts it intends to utilize in order to comply, and the expected date of compliance.
"SCO is required to provide such answers and documents within thirty days from the date of this order.
"All other discovery, including SCO's Motion to Compel is hereby STAYED until this Court determines that SCO has fully complied with this Order. The Court will hold a hearing on the foregoing issues January 23, 2004 at 10:00 a.m."
Did they comply with item number 4? I don't know. How the judge will like the Christmas excuse is hard to guess. She might note that they could have asked for a later date at the December 5 hearing, and if they knew they would be closed for Christmas and would have trouble meeting the schedule, they could have said that to her at the hearing, and that Christmas is a known holiday they obviously could expect to occur between December 5th and January 12. Or she might let it pass. It would seem to depend on what the affidavit says:
"THE COURT: At this time, however, I will grant defendant IBM's motion to compel answers to both sets of interrogatories, and that would include, I think, 12 and 13, if those are the ones that are questionable. SCO is to file its responses within 30 days of the entry of this order, and if, for some reason, it is in good faith unable to obtain a particular portion of that, then it must file the appropriate affidavits indicating why it cannot. It is to respond -- it should file its discovery and respond in order to comport with the -- or correct the deficiencies that are set forth in the defendant's addendum that's filed November the 4th."
Reading the transcript, the judge made it clear that SCO can't go forward with its discovery, including its Motion to Compel, until they are in full compliance. If they don't produce the rest by the hearing date on the 23rd, I'd guess they will have a major problem.
IBM is not likely to do nothing about this, though, I'm guessing, depending on what date SCO is now promising to provide the rest and how much is missing.
They say in the notice that the supplemental responses add up to more than 60 pages, and they add the phrase that they've answered fully "based on the information in SCO's possession". Hmm. It makes reference to a declaration by Ryan Tibbits, but that isn't included in the PDF. This declaration is where they explain what they didn't produce and when they expect to have it.
It's hard to believe they would miss the deadline. But it appears they have. Funny, I could have sworn they were telling reporters they would be providing everything. Here is their press release about this notice, which will be filed with the SEC today.
Notice how the press release characterizes what they produced:
"The SCO Group Inc. (Nasdaq: SCOX) today announced that it has responded to a December 12, 2003 court order in connection with its current legal action against IBM, filed in the United States District Court for the District of Utah. As expected, SCO yesterday answered certain interrogatories and produced evidence to IBM to support its claims. The interrogatories and evidence were produced on January 12, 2004 under the protective order previously entered in the case. In addition, SCO filed with the Court on January 12, 2004 the 'Notice of Compliance with Court Order.' The Notice will be available on Form 8-K, which will be filed later today with the Securities and Exchange Commission."
Does that sound like the whole story to you? More will be available with time, but here is what they have told the judge in this notice:
Plaintiff/Counterclaim Defendant SCO hereby files its Notice of Compliance with this Court's Order entered on December 12, 2003, and states:
1. SCO has responded fully and in detail to Interrogatories 1-9, 12 and 13 of IBM's First Set of Interrogatories. (See SCO's Supplemental Response to Defendant's First and Second Set of Interrogatories dated January 12, 2004) (hereinafter "Supplemental Responses."). These Supplemental Responses, which exceed 60 pages, fully respond to the interrogatories based on the information in SCO's possession. Upon receiving complete discovery from IBM, including all versions of AIX and Dynix/ptx, there undoubtedly will be further evidence of IBM's contractual breaches and other violations of law, as detailed in the attached Declaration of Ryan Tibbits. Accordingly, SCO reserves the right to further supplement or amend its answers as discovery or further investigation may reveal.
2. SCO has also produced all non-privileged responsive documents requested by IBM. The only exception to such production is the files of certain officers and directors for whom SCO could not obtain the requested materials during the holidays with sufficient time to review the documents. The efforts to obtain these files and their expected production date are set forth in the attached Declaration of Ryan Tibbitts.
DATED this 12th day of January, 2004
In case you've forgotten what the Interrogatories were asking for, here is the list:
INTERROGATORY NO. 1: seeks specific identification of all alleged trade secrets and confidential or proprietary information that SCO alleges IBM misappropriated or misused. This information is requested by product, file and line of code.
INTERROGATORY NO. 2: For each alleged trade secret and any confidential or proprietary information identified in response to Interrogatory No. 1, Interrogatory No. 2 seeks further identification of: (a) all persons who have or had rights to the same; (b) the nature and sources of SCO’s rights in the same; and (c) efforts to maintain secrecy or confidentiality of the same.
INTERROGATORY NO. 3: For each alleged trade secret and any confidential or proprietary information identified in response to Interrogatory No. 1, Interrogatory No. 3 seeks the identity of all persons to whom the same was disclosed and the details of such disclosure. In particular, this interrogatory seeks: (a) the date of disclosure; (b) the terms of disclosure; (c) the documents relating to disclosure; (d) all places where the trade secret and/or confidential or proprietary information may be found or accessed.
INTERROGATORY NO. 4: For each alleged trade secret and any confidential or proprietary information identified in response to Interrogatory No. 1, Interrogatory No. 4 seeks information regarding each instance in which plaintiff alleges that IBM misappropriated or misused the same. In particular, this interrogatory seeks (a) the date of the alleged misuse or misappropriation; (b) the persons involved; c) the manner of misuse or misappropriation; and (d) the location of any method or code in any IBM product, Linux, open source or the public domain.
INTERROGATORY NO. 5: For each alleged trade secret and any confidential or proprietary information identified in response to Interrogatory No. 1, Interrogatory No. 5 seeks identification of (a) all agreements relating thereto, and (b) all copyrights and patents relating thereto, including but not limited to the owners, licensors, licensees, assignors or assignees thereof.
INTERROGATORY NO. 6: For each alleged trade secret and any confidential or proprietary information identified in response to Interrogatory No. 1, Interrogatory No. 6 seeks (a) the origin of the code or method, including where, when and by whom created; (b) all products in which the code or method is included or upon which it is based (in whole or in part).
INTERROGATORY NO. 7: seeks a description of each instance in which IBM allegedly engaged in unfair competition, including but not limited to: (a) the dates of such conduct, (b) the persons involved, and (c) the specific manner of unfair competition.
INTERROGATORY NO. 8: seeks the identification of all agreements with which IBM allegedly interfered, including but not limited to: (a) the date of interference, (b) the persons involved in the interference, (c) the manner of interference, (d) the actions (if any) IBM encouraged licensees to take, (e) the actions, if any, such licensees took as a result of IBM’s inducement/encouragement, (f) the trade secret or proprietary information (if any) involved in the alleged interference.
INTERROGATORY NO. 9: seeks identification of all agreements that IBM has allegedly breached, including but not limited to: (a) the date of breach, (b) the persons involved, and (c) the specific manner of breach.
INTERROGATORY NO. 12: Please identify, with specificity (by file and line of code), (a) all source code and other material in Linux (including but not limited to the Linux kernel, any Linux operating sytem and any Linux distribution) to which plaintiff has rights; and (b) the nature of plaintiff's rights, including but not limited to whether and how the code or other material derives from UNIX.
INTERROGATORY NO. 13: For each line of code and other materials identified in response to Interrogatory No. 12, please state whether (a) IBM has infringed plaintiff's rights, and for any rights IBM is alleged to have infringed, describe in detail how IBM is alleged to have infringed plaintiff's rights; and (b) whether plaintiff has ever distributed code or other material or otherwise made it available to the public, as part of a Linux distribution or otherwise, and, if so, the circumstances under which it was distributed or otherwise made available, including but not limited to the product(s) in which it was distributed or made available, and the terms under which is was distributed or made available (such as under the GPL or any other license).
Note that the judge's order, number 4, requires them:
"To identify and state with specificity the source code(s) that SCO is claiming form the basis of their action against IBM. This is to include identification of all Bates numbered documents previously provided."
If you recall, REQUEST NO. 75 asked for "All documents relating to the information requested in Interrogatory Nos. 12-13." Item 4 in the judge's order is listed separately from Interrogatories 12 and 13. Is it not possible to comply with 12 and 13 and still not show the code that interests us all the most?