IBM's Steamroller Just Keeps on Rolling

Tuesday, August 24 2004 @ 05:21 PM EDT

Contributed by: PJ

IBM has filed three more documents, all related to their Motion to Striike Materials Submitted by SCO In Opposition to IBM's Cross-Motion for Partial Summary Judgment:

"In an attempt to create a fact dispute in opposition to IBM's cross-motion for partial summary judgment on its Tenth Counterclaim, SCO has submitted, and seeks to rely on, incompetent and inadmissible evidence."

Incompetent here doesn't mean what you think it means, although now that you mention it...

It means that the folks who put in declarations don't have personal knowledge or don't have the qualifications to provide the testimony they are offering. Here is's definition of incompetent in this context:

" . . . a generalized reference to evidence which cannot be introduced because it violates various rules against being allowed, particularly because it has no bearing on the case."

IBM seeks therefore to strike the declarations not only of Chris Sontag but that of Sandeep Gupta and portions of the declaration of John Harrop also, all of which consist, IBM asserts, "almost entirely of testimony not made on personal knowledge and improper opinion testimony. Indeed, SCO does not even attempt to show that these witnesses may properly offer opinion testimony. . . " The paragraphs IBM seeks to strike from the Harrop Declaration, which it describees as legal "argument, not evidence", are paragraphs 4-9, 11-24, 27, 29-30, 32-34, 36-41, 43, 44, 47, 50-52, 54, 56, 58-65, 67, 69-72, and 76-95. Legal argument is, by definition, opinion, not facts, so that should be excised. The tattered rag left after all that cutting can remain.

IBM also mentions that SCO is relying on news reports "for the truth of their contents", and you know how silly that would be in everyday life, let alone in a court case, so they submit that the court should strike Exhibits 24, 25A, 33, 36, 38, 41, 42, 44, 50-52, 56-59, 61, 63-65 and S-3. "In addition, SCO seeks improperly to rely on certain news articles for the truth of their contents. That is classic inadmissable hearsay and should be stricken," is how IBM puts it in its Memorandum in Support of this motion. Worse for SCO, they "failed to properly authenticate" the documents, according to footnote 6 on page 14 of the supporting memorandum:

"It should be noted that SCO failed properly to authenticate documents it has submitted for the Court's consideration. Rather than submit its evidence as exhibits to an affidavit or declaration attesting to their authenticity, SCO has simply attached them as exhibits to its unsworn opposition brief. As a technical matter, therefore, SCO's exhibits should be excluded from consideration on this motion. See IBP, Inc. v. Mercantile Bank of Topeka, 6 F. Supp. 2d 1258, 1263-64 (D. Kan. 1998) ('It is well established . . . that a party cannot rely on unauthenticated documents to avoid summary judgment. . . . Although [plaintiff] may have an official who can authenticate the materials, the court is under no obligation at the summary judgment stage of proceedings to examine all the hypothetical ways in which evidence could be reduced to an admissible form by the time of trial.'"

Ouch. You think maybe SCO has too *many* attorneys? And then, the most embarrassing of all, IBM moves to strike 11 exhibits that SCO in its brief failed to reference in any way. Neither did any of the three witness declarations. "As these materials are plainly extraneous to the record," IBM smoothly asserts, "they should be stricken as well." This is more or less the equivalent of walking out of a rest room with toilet paper stuck to your shoe. You do look foolish.

Further, IBM asks that "all portions of SCO's opposition brief relying on the improper testimony of Mr. Gupta, Mr. Sontag and Mr. Harrop or inadmissable documents also be stricken from the record, including in particular paragraphs 1 n.3, 3, 8, 10, 10 n.5, 11, 12-14, 40, 44 and 47 of SCO's statement of facts." They request oral argument on the motion.

What does it all mean? That IBM wishes to strike all the so-called facts in dispute that SCO has attempted to offer. That SCO will be shown no mercy. If they fail to dot an i, IBM will call them on it, with a motion and oral argument requested, all of which costs money to respond to and deal with. It also means that IBM believes that SCO is manufacturing bogus issues, in an attempt to create some fact dispute sufficient to survive IBM's summary judgment on its 10th counterclaim, and they intend to call them on it. It also means that the tide has turned, and IBM is on the offensive now. SCO, as plaintiff, had its time to present its case to the court and to the world. Now, IBM is striking back. It's their inning now. And I don't believe they will stop until they prevail.

There is also a Memorandum in Support of this motion and a Ex Parte Motion for Leave to File Overlength Memorandum, the overlength memo being this 13-page one in support of the Motion to Strike Materials. They explain that rather than submit three motions and three supporting memorada, one for each declaration they seek to strike, they have combined them into one, resulting in the need for a slightly overlength memorandum. This is another subtle dig at SCO, who filed a blizzard of papers, pretty much all asking for the same relief.

But more than anything else, if you look at page 4 of the Memorandum in Support, at the footnote, you will see that once again IBM is telling SCO that if it has experts who have deep-dived into code, to put that evidence on the table. Don't use Chris Sontag as a front man, to allude to experts and what they allegedly found. You have experts? *They* should be putting in declarations, IBM states:

"Mr. Sontag insists in his declaration that 'SCO and its experts' (whom he does not identify) have undertaken certain code comparisons, but pointedly does not describe how he was involved in such activities, if at all. . . . To date, SCO has not identified any of its expert witnesses, and has refused to produce any of its experts' work that it has described publicly and in its discovery responses.. . . SCO should not be permitted to 'selectively disclos[e]' its experts work. See Quark, Inc. v. Harley , Nos. 96-1046, 96-1048 & 96-1061, 1998 U.S. App. LEXIS 3864, at *8 (10th Cir. Mar. 4, 1998)(attached hereto as Exhibit A). '[A] litigant cannot use the work product doctrine as both a sword and shield by selectively using the privileged documents to prove a point but then invoking the privilege to prevent an opponent from challenging the assertion.' . . . If SCO has retained experts to perform such work, then SCO should have submitted their declarations in opposition to IBM's motion. If SCO has not done so, or has done so but does not yet wish to disclose them, then it may not attempt instead to introduce such testimony through individuals who it will not -- or cannot -- qualify as experts."

I'm thinking SCO may rue the day it ever mentioned those MIT deep divers. This isn't the first time IBM has brought them up, and I'm sure it won't be the last. You also don't want to miss reading pages 11 and 12 of the Memorandum, where for the first time we see IBM begin to respond to SCO's attempt to garner RCU for itself, under their theory of methods and routines, which are ideas, which IBM points out are unprotectable under copyright law, which protects only the expression of ideas. They quote from Gates Rubber that "the main purpose or function of a program will always be an unprotectable idea" and that "the expression adopted by the programmer is the copyrightable element in a computer program . . . the actual processes or methods embodied in the program are not". Take a look at what Gupta calls "UNIX RCU" and "Linux RCU", in Exhibit A attached to his declaration, they say, and you don't need to be an expert to see they don't look at all alike. They are not only not identical, they are "not even close to being 'similar'", IBM states. Anyway, they add, Gupta's examples, even if they were any good, only amount to maybe a couple of hundred lines of code out of programs that are "each millions of lines long" and so are insignificant. Utah Rules of Evidence are here, by the way.

There is also a stipulation between SCO and Novell on Pacer today, giving SCO a little more time to file a memorandum in opposition to Novell's Motion to Dismiss, specifically until September 7th. SCO's lawyers are a tad busy right at the moment and likely begged for more time.