One of the items IBM asked SCO for in discovery was documents related to the Caldera v. Microsoft case, at least the discovery requests and responses in the case, and SCO answered that they didn't have them, that Canopy had destroyed them, but that maybe Microsoft had a copy of them:
"As we previously mentioned, SCO was not a party to this litigation and does not have possession of such documents. Moreover, as we related to your colleague Peter Ligh in May 2003, the documents in the Canopy Group's possession were destroyed pursuant to Court Order issued in that unrelated litigation. Our understanding, however, is that Microsoft or its lawyers may still have the documents you are seeking, so you may wish to contact them."
I must admit, this caught my eye, because the story in the press at the time was that the court documents were destroyed in 2002 at the request of Caldera:
"The 937 boxes of court-ordered documents had been safeguarded by Redman Records of Salt Lake City since the mid-1990s as part of Caldera International's unfair-competition lawsuit against Microsoft.
"That suit was settled in January 2000, and Caldera -- now The SCO Group -- was paying up to $1,500 a month to store the documents. In October, the company persuaded U.S. District Judge Dee Benson to order their destruction.
"However, just as the shredding was to begin, Sun Microsystem's attorneys halted it with a subpoena. The company, seeking evidence that might help in its own antitrust suit against Microsoft, eventually pulled out 40 boxes of the computer giant's secret internal communications for digital imaging."
I started looking around, and lo and behold, some of the documents still exist on Pacer, and in fact it was indeed Canopy who asked the judge to destroy the documents and Canopy is described as Caldera's "successor-in-interest" in the case. I'm not yet clear how SCO can say they were not a party to this case, entitled Caldera, Inc. v. Microsoft Corporation, when SCO is Caldera, after the name change. Where is the missing piece in the chain there? Or is it the missing pea under the shells? However, that is what many eyeballs are for, so here is the order giving Canopy the right to destroy the files, the first piece in figuring out the mystery. I must say, the SCO-Canopy story has many mysteries.
Caldera had a DR-DOS version, CalderaOpenDOS, and for a while it allowed people to have access to the source code. Then it changed its mind, thinking it might be useful for embedded devices. Eventually, I gather the code ended up in the hands of Lineo, another Canopy Company that was spun off of Caldera, that eventually went out of business:
"DR-DOS began life at Digital Research in the 1980's, where the pioneering technology of CP/M was developed. Lineo has integrated into DR-DOS many of the latest technology devices. However, due to an increasing demand for our Embedix and embedded Linux products, Lineo is no longer developing or supporting the DR-DOS products. The source code for DR-DOS is available, and may be purchased by contacting a member of the Lineo Sales Team (Lineo Sales Contact Form)."
DeviceLogics, Inc. bought Dr-DOS from Canopy Group in October 2002, as you can see in this DeviceLogics press release:
"November 18, 2002—DeviceLogics, Inc. today announced that it has acquired DR-DOS from the Canopy Group, a Utah technology venture group, and has plans to release in Spring of 2003 an 8.0 version of DOS, bringing it up-to-date with core embedded functionality. DeviceLogics also plans to release an updated software development kit (SDK) targeted at embedded developers.
“'Fortune 500 companies continue to depend on DOS-based devices to deliver their day-to-day services. Arguably, DOS remains one of the most stable OS environments and, with our planned enhancements, will continue to be deployed on embedded devices where stability and ease-of-development are king,' said Bryan Sparks, CEO of DeviceLogics, Inc. 'The scrawny, old cow is still giving milk.'
"DR-DOS originated in 1987 at Digital Research, Inc.; was then acquired by Novell in the early 90s; in 1996, DR-DOS was acquired by Caldera, Inc., the same company that sued and settled out-of-court with Microsoft Corporation over DOS-related anti-trust allegations; in 1998, it was spun out to Lineo, Inc. (a Canopy company) where it underwent enhancements targeted at the embedded market and, in October 2002, was acquired by DeviceLogics, Inc."
Bryan Sparks was formerly at Caldera, and in fact he founded it, as Robert X. Cringely pointed out. There is a Caldera DR-DOS page listed on Wayback and from February 1997 to June 2003, but none of the pages would resolve for me. Perhaps they will for you. Here's a bit of the history:
"Since May 5th, 1997 the OpenDOS kernel sources have been made available to the public. What better documentation you can think of than the source code of a commercial operating system?
"However, there's also some bad news: Until recently (August 1997) we've lived with the impression that Caldera was also willing to publish the source code of all the other OpenDOS software, excluding Personal NetWare and Stacker, of course. Unfortunately it appears as if they have changed their mind. It has been said, that there have been 19.000 downloads within the first three days of availability of OpenDOS 7.01, and about 2.000.000 copies sold until September 1997, which was more than being expected, and clearly is in the contrary to some 'trendsetters' saying DOS was dead. 'Dead live longer!' Apparently, Caldera had to change its strategy in the active Embedded market to not loose control over the other OpenDOS sources, when on the other hand they put great strength and much money in its further development. Despite all the unconventional and positive methods of marketing, we have to take into account, that Caldera is not a welfare organization, but a profit oriented company. OpenDOS is not FreeDOS, which is under the GPL. In my personal opinion, what counts most is to ensure the further development of the operating system, becoming again a powerful advanced alternative in the real world, as much open as can be. However, there is still hope, that in time they could change their mind again, to let enthusiastic users and programmers also take part in the utilities' further development (at least the traditional ones), which could speed up things significantly."
Here is one unofficial history of the company, that might explain how SCO could say it was not a party to the lawsuit:
"Since this gets confused so often, here's a small summary of the company's history: In fall 1996, Caldera, Inc., the US company, which was founded by Bryan Sparks, and which had developed the Caldera Network Desktop and compiled the OpenLinux distribution, and which was primarily financed by Ray Noorda's Canopy Group, bought all the remaining DRI assets from Novell, Inc. to have a good DOS to be incorporated into their Linux distribution. Soon, a new small development office for DOS related technology was raised in Andover in the United Kingdom centered around some of the original Digital Research/Novell veterans and a few new faces. This subsidiary was named Caldera UK, Ltd. In mid 1998, the mother company split itself into three independant companies: Caldera, Inc. remained the shell company and for the lawsuit Caldera vs. Microsoft, Caldera Systems, Inc., who took over all the Linux related stuff (OpenLinux etc.), and Caldera ThinClients, Inc. for DR-DOS and all embedded systems stuff. In early 1999, Caldera UK, Ltd., was closed again and a few months later Caldera Thin Clients, Inc. renamed itself into Lineo, Inc. now focussing on Linux embedded systems. Soon after the lawsuit was settled in early 2000, the original Caldera, Inc. company ceased to exist, and the other two companies took over/merged with quite a number of other smaller companies in their respective business fields. Actually, I have lost track who all they bought in 2000 and 2001. Anyway, in 2002 (AFAIR) Caldera Systems, Inc. merged with SCO and have recently renamed into SCO, Inc. Also, AFAIK Lineo, Inc. no longer exists as well since fall 2002, but a new small company named DR DOS, Inc. (aka DeviceLogics, Inc.), co-founded by Bryan Sparks, has bought the DR-DOS product line from the Canopy Group, and continues to sell and develop DR-DOS now."
In the trial, Caldera, Inc. wanted some items kept confidential that the judge decided didn't need to be. In an order dated August 13, 1999, 296cv0064500000581.pdf on Pacer, the judge wrote:
"There is a general right of the public to have access to Court records. The Court's order of February 12, 1999, previously referred to, provides full and adequate protection for the public interest. Generally, all pleadings, motions, including those for summary judgment and in limine, should not be submitted under seal. The motions of the parties, in this case, on summary judgment, the responses and supporting documentation, herretofore filed are not to be sealed and the clerk will make such items available. Matters relating to trade secrets, proprietary, confidential, engineering, and commercial information are proper for nondisclosure, except as to materials that will be addressed in open court."
The order goes on to provide the San Jose Mercury News, The Salt Lake Tribune and Bloomberg News with documents from the case under certain limitations. Another interesting detail is that Novell was involved in the lawsuit, and some of the documents in the case were released to them, the portions that they submitted. IBM was subpoenaed too. And you will have noticed that Sun is mentioned in the press report as well. And, sure enough, I found Sun's request to the court for access to the documents so it could grab what it felt it needed for its lawsuit against Microsoft. They had to ask the court for this, because when they asked Canopy Group, Canopy refused to turn anything over without a court order and refused to hold off on destroying the documents, despite Sun's offer to pay all storage expenses on Canopy's behalf, expense being the given reason why Canopy wanted to be able to destroy the documents, according to their application to the court. Here is a bit of the wording from Sun's memorandum in support of it motion to intervene under Federal Rules of Civil Procedure 24(b) to modify the Protective Order, to get Canopy to provide the documents to Sun, filed November 13, 2002:
"Caldera settled its suit against Microsoft on January 7, 2000. As part of the settlement, on May 30, 2000, the Court entered a stipulation between the parties modifying the April 1, 1997 protective order ("Protective Order") that had governed the handling of materials gathered during the discovery phase of the case. Under the terms of this stipulated modification, Caldera agreed to preserve all documents produced to it by Microsoft or any third party, rather than return or destroy the documents as had originally be permitted.
"Two years after the settlement agreement was reached and the Protective Order was modified by stipulation, The Canopy Group, Inc. ("Canopy") (successor-in-interest to Caldera) moved this Court for relief from the stipulation. Specifically, Canopy filed a motion asking that, with respect to any document produced pursuant to the Protective Order that it was required to preserve, Canopy be permitted instead to either: (1) return the documents to the individual or entity that produced it; (2) destroy the document; or (3) turn over the document to any interested third party, subject to notice to the party producing the document.
"Canopy served this motion on Microsoft, as well as a whole host of other potentially interested parties. Despite the potential implications for disclosure made explicit in Canopy's motion, not one party came forward to object or even respond: not Microsoft, and not any other party. In the absence of any opposition, the Court proceeded to decide Canopy's motion on October 24, 2002 by signing the proposed order filed by counsel.
"But the proposed order, rather than granting Canopy's request for permission to elect any of the three stated procedures for handling any document produced pursuant to the Protective Order, instead modified the Protective Order to authorize only one procedure: destruction of the documents. As a result, the Protective order now appears to authorize the destruction of documents regardless of any lawful request or subpoena from any collateral party asking that the documents be produced.
"Unfortunately, Sun was not one of the potentially interested parties served with notice of Canopy's motion to modify the Protective Order. As a result, by the time Sun learned of Canopy's motion after the close of business on October 29, 2002, the motion had already been granted. This left Sun with little time to secure any documents it might require for its litigation before Canopy had destroyed the documents pursuant to the Court's order.
"Counsel for Sun called counsel for Canopy the next morning to learn of the condition of the documents subject to the Protective Order. After being informed that Canopy could not confirm the status of any of the documents, Sun then served its subpoena on October 31, 2002, requesting that Caldera make available for inspection 'all documents produced to Caldera in Caldera, Inc. v. Microsoft Corp.'
"In response to the subpoena, Canopy asserted that it may not make the documents at issue available to Sun for inspection without an order from this Court modifying the Protective Order to allow such an inspection. Canopy further asserted that in the absence of such an order, it would proceed with its destruction of the documents. Accordingly, Sun has filed the instant application to secure this Court's modification of the Protective Order to permit Canopy to provide the documents to Sun pursuant to Sun's subpoena. Because such a modification is called for under the law of the Tenth Circuit, Sun's application should be granted."
This is such a strange story. As for the detail that Sun relates that Canopy's Motion asks for one thing and the Order grants another, here is one possible explanation, though it is just a guess, albeit an educated one: Normally, when you submit a motion, it's not uncommon that the party submitting the motion gets to do the order as well. You often submit the proposed order with the motion, as you may have noticed some of the parties have done in the current matters. So the order might have been drawn up by Canopy.
And exactly what is IBM looking for from this case that it thinks is relevant to the new SCO v. IBM matter? I'm sure they are not asking for no purpose. And it's a bit uncanny how the entire gang represented in the DR-DOSS case are the same folks embroiled now in the SCO case, including Canopy Group.
It is starting to remind me of a town out West I visited once, where it seemed like everybody I met had the same last name. Eventually, I learned, it was because one rather large family settled there and then started marrying away, until practically everybody ended up related to everybody else, one way or another.
It does seem a bit odd, the determination to destroy these documents. Canopy told the court it was a financial burden and that was why they wanted to destroy them. But footnote 32 in this Sun memorandum shows that Sun offered "to assume all of Canopy's reasonable costs in maintaining the documents as of the date of the subpoena." Presumably, turning the documents over to Sun and letting them pay for them would actually be cheaper than paying to have them destroyed. What was in those documents? I don't know, but since Sun's motion was granted and they eventually salvaged some of the documents, made copies of them, and then returned them to be destroyed too, it's clear they know what was in the entire pile of documents. This memorandum is 296cv0064500000677.pdf. And here is the order it refers to, granting Canopy Group the right to destroy the documents in October of 2002, the same month and year that Canopy Group sold Dr-DOS to DeviceLogics. By the way, the AP report says they added up to 37,480 pounds of records, and that it was all eventually turned into toilet paper.
J. Harrison Colter, Esq. (4018)
[address, phone, fax]
Attorney for Plaintiff Caldera, Inc.
[represented by its successor-in-iinterest,
The Canopy Group, Inc.]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
CALDERA, INC., [represented by its successor
-in-interest, THE CANOPY GROUP, INC.]
ORDER REGARDING PRESERVATION
OF DOCUMENTS UNDER THE
Civil No. 2:96 CV 0645DB
Judge Dee V. Benson
Magistrate Judge Ronald N. Boyce
1. This case was an antitrust action ("the Action") that was dismissed on January 7, 2002.
2. The parties engaged in extensive discovery and produced numerous documents (the "Documents") pursuant to a Protective Order entered by this Court on April 1, 1997 (the "Protective Order").
3. The Protective Order originally contemplated destruction or return of all confidential documents upon the conclusion of the Action. However, on May 30, 2000, this Court entered a Stipulation Concerning Preservation of Documents under the Protective order (the "Stipulation") ordering the Plaintiff, Caldera, Inc. (and now its successor-in-interest, Canopy, Inc.) to retain the Documents.
4. Canopy has paid for the storage of the Documents since the Action was dismissed. Canopy has no corporate interest in, and perceives no corporate benefit to, retaining the Documents. Canopy cannot be expected to bear the ongoing expenses of storing the documents indefinitely.
5. Canopy now seeks relief from any further obligation to store the Documents.
6. Canopy has demonstrated good cause for a modification of the Stipulation to permit the destruction of the Documents. The Protective Order contemplated ultimate destruction of the Documents, and such destruction was and is foreseeable to all those interested in the retention of the Documents.
7. The parties to the Action (and those third parties who produced documents subject to the Protective Order) relied on the Protective Order, and upon the knowledge that after the Action was completed, the Documents would be returned or destroyed.
NOW THEREFORE, good cause having been demonstrated, the Stipulation Concerning Preservation of Documents under the Protective Order (the "Stipulation") entered by this Court on May 30, 2000, is hereby modified to permit Canopy, the successor-in-interest to Caldera, Inc., to destroy the documents being preserved in accordance with the Stipulation.
SO ORDERED this 26 day of October, 2002.
United States District Judge
United States District Court
District of Utah
October 25, 2002
* * CERTIFICATE OF SERVICE OF CLERK * *
True and correct copies of the attached were either mailed, faxed or e-mailed by the clerk to the following:
Mr. Michael P O'Brien, Esq.
JONES WALDO HOLBROOK & McCONOUGH
Mr. Gary F. Bendinger, Esq.
BENDINGER CROCKETT PETERSON & CASEY
Richard L. Klein, Esq.
WILLKIE FARR & GALLAGHER
James Chadwick, Esq.
GRAY CARY WARE & FRIDENRICH
Robert G. Loewy, Esq.
OMELVENY & MYERS
James S. Jardine, Esq.
Richard J. Urowsky, Esq.
SULLIVAN & CROMWELL
William H. Neukom, Esq.
James R. Weiss, Esq.
PRESTON GATES ELLIS & ROUVELAS MEEDS
Michael H. Steinberg, Esq.
SULLIVAN & CROMWELL
Mr. Max D Wheeler, Esq.
SNOW CHRISTENSEN & MARTINEAU
Stephen D. Susman, Esq.
SUSMAN GODFREY LLP
Ralph H. Palumbo, Esq.
SUMMIT LAW GROUP
Parker C. Folse III, Esq.
SUSMAN GODFREY LLP
J. Harrison Colter, Esq.