Judge Wells' Order - SCO Doesn't Get All AIX, IBM Doesn't Have to Go First

Wednesday, March 03 2004 @ 08:00 PM EST

Contributed by: PJ

The order is in. She tells both sides to comply with discovery, but in the case of IBM, she specifically restricts the requirement that they provide AIX versions to the 232 offered by IBM's lawyer, David Marriott, at the last hearing on February 6. SCO must demonstrate a need for more if they want more. But they don't get every AIX version from the beginning, as they had repeatedly requested. SCO has 45 days to comply fully with IBM's discovery demands. Remember, that is what IBM asked for, that SCO be given a date to comply.

SCO has 45 days to identify "all specific lines of code" they allege IBM put into Linux from AIX or Dynix; identify and provide "with specificity all lines of code in Linux that it claims rights to; provide and identify with specificity the lines of code that SCO distributed to other parties, and this is to include "where applicable the conditions of release, to whom the code was released, the date and under what circumstances such code was released."

The previous discovery stay is lifted. IBM has 45 days to provide "the releases of AIX and Dynix consisting of 'about 232 products' as was represented by Mr. Marriott at the February 6, 2004 hearing." After that SCO can provide memoranda indicating "if and how these files support its position and how they are relevant." If they ask for more files, they are to explain reasons for such requests. Then the court "will consider ordering IBM to produce more code from AIX and Dynix."

What it all means in practical terms is that the court didn't buy SCO's argument that it needed all of AIX and Dynix and it specifically rejected its request that IBM *first* provide AIX and Dynix, so that after that SCO could find what it needed. Since, obviously, IBM is unlikely to provide its side of the discovery order until the 45th day, SCO, under the identical 45-day requirement, will have to provide its answers to discovery before it gets to look at any more AIX or Dynix.

SCO is granted one request: that IBM turn over discovery regarding top management, including Sam Palmisano. Also Judge Wells asks that IBM turn over any nonpublic contributions to Linux that it may have made. She will learn more about Linux as the case goes along, and I believe she will find there aren't any such. SCO asked for source logs. Wells says fine, within the limits of the discovery parameters, but SCO has to do the same for IBM. I don't remember IBM asking for source logs, but it is only fair.

She then asks both sides to explain how the new amended complaint impacts IBM's Motion to Strike. That's it. She would like the case to move forward, but she has done so in a way that is not a problem for IBM. SCO, on the other hand, has to provide what it told her at the hearing it can't provide without looking at all of AIX first. How they will do that remains to be seen.

We hope to have it transcribed soon. Here is the PDF from SCO's website. We should have a local copy soon, if you prefer to wait.

To refresh your memory, here is the transcript of SCO saying it is impossible for them to provide the discovery without getting AIX and Dynix first:

MR. HEISE: The reason I am maybe going more into the merits than I probably should in front of Your Honor is it directly ties into the adequacy of these interrogatory answers. The interrogatory answers detail exhaustively the contributions of AIX and Dynix that were made in there. There is no dispute about that.

They then in this letter that they wrote earlier this week said, Well, you didn't identify the line-for-line matching in every single place. There are two times when we did not do that in our answers to interrogatories. One is in table A of our interrogatories which we identified eight different files and we said the copying is complete throughout. We are not matching up the lines and I gave an example of that in the demonstrative aids when it says copying of Dynix slash into Linux, and you can see the red on the right is exactly the same as the red on the left, and that is line-for-line copying. So that is the one instance in our interrogatory answers where we admittedly said in there it is throughout. We are not identifying lines here.

The other place where we did not identify the line-for-line copying are for certain technologies known as Asychronous Input/Output and for Scatter Gather Input and Output. There is a very fundamental reason. Because to be able to do the line-for-line matching we need to have their source code. They have given us zero AIX and two CD's of Dynix.

THE COURT: But the requirement of the Court is that you provide those source codes.

MR. HEISE: I think there is a fundamental misunderstanding and let me explain why.

With respect to these other technologies that they have publicly acknowledged that they have contributed, they have laid out how it is that they have contributed it, and it was a part of AIX or Dynix, and what they are saying is, Show us the lines. That is the equivalent of saying I am not going to show you the book that contains all of these lines of code, therefore, all we can do is say it is from AIX or Dynix and you have said it is and we have identified how it is and why we believe it is in fact from AIX or Dynix. But to sit here and say to us when they have not given us their source code, and their source code is what is matched up --

THE COURT: This is about your response and compliance with the Court order.

MR. HEISE: I understand that.

We have given the technology based upon the information we have. The answers to interrogatories that they are complaining say, yes, but for those given technologies you have not identified the specific lines. What we have said in our answers to interrogatories is we can't identify those specific lines because it comes from your confidential code which we don't have access to yet.

THE COURT: Mr. Heise, this is the problem. The problem is that unless you identify those codes, which was required by the Court order --

MR. HEISE: Which we did.

THE COURT: -- then I.B.M. is not in a position necessarily to respond, the way I see it. So we are at an impasse and we can't be at an impasse and have the case remain at a standstill. That is why there is an order in place that SCO has been required to comply with, so that I might then address what IBM has to comply with.

MR. HEISE: But I'm trying to stay focussed on our compliance.

I guess maybe a way to explain it, is in the technologies that they have contributed, let's say in rungs 15 and 16, that is not from us. That is not our Unix System V code. That is AIX or Dynix. We don't have that source code to be able to identify the lines, because they are quibbling about the fact that we have not identified the lines of a couple of technologies. We don't have the source code for 15 and 16. They do.

If they give it to us we'll supplement if further, but in the absence of that it is literally impossible to identify the lines. We have identified the technology, we just cannot identify the lines because we don't have their derivative modification source code. That is why and that is what I am trying to get across.

THE COURT: Well, you have made your point, I am just not certain I agree with it.

The order shows she did not, in fact, agree with it.

And here is the discussion about the 232 files at the hearing:

If you look, Your Honor, at what we are willing to produce, it is a substantial amount of code. We either have produced or will produce three million pages of paper of source code. That isn't every conceivable iteration of these products. It is, however, about 232 products.

If I may approach?

THE COURT: Certainly.

MR. MARRIOTT: Now, again, I think the production of this material is entirely uncalled for, Judge, but we are prepared to do it to put to rest this notion that somehow IBM is somehow hiding the ball with respect to the production of source code. This amounts to well over 100 million lines of source code and we are prepared to produce that. We said we were prepared to produce that in our opposition papers. This is the releases of AIX and Dynix and the released products during the relevant time periods that they are concerned about.

What we are not willing to do, Your Honor, is to produce every conceivable draft and iteration and version of this stuff that might exist in the files of the company that has more than 100,000 employees, with respect to products that were developed over decades, and as to which 8,000 different individuals worked on.

To state it, Your Honor, is to express its absurdity.

And here is the SCO request regarding upper management:

HEISE: The other critical deficiency in the production of documents and interrogatory answers is that there is nothing from any of the highest levels of the company.

As you saw when IBM was filing their Motion to Compel, they kept asking for Darl McBride, the CEO, Chris Sontag, senior vice president, all of the top key people and kind of working their way down the ladder.

What we have gotten from IBM is working its way up the ladder, despite the fact that on October 28th and other occasions I have spoken with representatives of IBM and said we want the documents and materials from Sam Palmisano, from Irving Wladawsky-Berger, the key executives that are intimately involved in the Linux project.

In our reply memo in support of this Motion to Compel, we in fact provided an article from the New York Times where Mr. Palmisano is identified as the leader of moving IBM into the Linux movement. Mr. Wladawsky-Berger is a core, critical person and they are not mentioned in any of their interrogatory answers and we have gotten no documents from them.