SCO's Supplemental Declaration of John Harrop in Support of SCO's Opposition to IBM's Motion to Strike - as text

Saturday, September 25 2004 @ 06:40 AM EDT

Contributed by: PJ

Here's the Supplemental Declaration of John Harrop in Support of SCO's Opposition to IBM's Motion to Strike. Thanks go to sfohey for transcribing, doing the HTML and proofreading for us. If you wish to review that motion, you can. This came up in the September 15 hearing [transcript], and SCO's position was that they were not offering this as evidence of copyright infringement, just in support of their 56(f) motion asking for more discovery. They so don't want this case to be about copyright.

Here is what SCO attorney Frederick Frei said about this document:

"Mr. Harrop's declaration -- I'm thinking maybe now they backed off from trying to strike that because they didn't mention it. Mr. Harrop is one of the counsel for SCO on the case, one of the outside counsel. But his declaration was just submitted to show the procedural history of our efforts to obtain discovery and relying on what the Gupta and Sontag declarations were showing as to the need for it."

When IBM attorney David Marriott spoke about the Gupta Declaration, he said the same odd thing, that SCO said the Gupta Declaration also wasn't about copyrights:

"Now, Your Honor, in opposition to IBM's Motion to Strike, SCO concedes that the Gupta declaration, quote, 'does not discuss whether any of the Linux code he observed infringes any of SCO's copyrights'. SCO claims that, quote, 'Mr. Gupta's declaration was offered not to show IBM's copyright infringement of SCO protected code. Rather,' it says, 'it was submitted for the,' quote, 'very narrow purpose,' close quote, to support SCO's Rule 56 request.

"SCO effectively concedes, Your Honor, that the very evidence submitted by Mr. Gupta, notwithstanding all of its other problems, is insufficient to create a genuine issue of material fact."

But the IBM motion was asking for a declaration of noninfringement of copyright, so how can everything not be about copyright? SCO's position was to assert that they need more time and more code. But then, on what basis did they sue AutoZone for copyright infringement, as Mr. Marriott asked? It was a gamble to take a "we won't present evidence unless we get more code", and one can't help but wonder why they handled this hearing the way they did. It takes so little to block a summary judgment.

It's like they are saying to the court, "Unless you let us play by our rules, we won't play at all." They won't do depositions until they get the code they've been asking for, and they won't defend against a summary judgment but instead ask for more time and more code. They can't find code because they need IBM to draw them a map, so they know where X marks the spot.

So what *was* about copyright? They did dig up that old study referenced in the Mike Davidson email, the confidential one we can't read but did hear discussed, the study they turned over at the 11th hour. That is exactly what you are not supposed to do in discovery by the way, namely sit on evidence and then spring it on the other side at the last minute, so they can't even read it, let alone defend against it properly. That's *if* that is what happened. No doubt they would assert they only just found it. In the same dusty filing cabinet they found the amendment to the Novell agreement, no doubt. But how can they tell the court that they didn't already have that antique? And if they had it, why didn't they turn it over earlier? Or maybe it's so weak, judging from IBM's reaction, that they only brought it forth finally in desperation? Harrop's earlier Declaration, with all the paragraphs IBM wants stricken, is here. Here's what Marriott said at the hearing about the study:

"SCO seeks to explain away the e-mail to which I referred by reference to a 1999 memorandum. Now, Mr. Hatch says that he understands that we have this memorandum. We have it because it was given to us hours before today's hearing. We got it this morning. It should have been produced a long time ago, but IBM is supposedly a party in breach of its discovery obligations.

Your Honor, the memo was dated five years ago. It was written three years before the e-mail which I have showed to Your Honor. It is a draft. It says on its face that it is provided, quote, 'subject to the further analysis of Mr. Davidson'. That's on page 5 of the fax sent to us this morning by Mr. Hatch. On the last page of the document, page 6 of the fax, he says, 'I'm awaiting analysis from Mike Davidson on some of these issues since he has a better feel for the history of much of this company.'

"Well, Your Honor, Mr. Davidson weighed in, in the e-mail we provided to Your Honor. In that e-mail, he makes abundantly clear in the last two paragraphs what he said when he weighed in. I can't read it for the Court. Your Honor, if you look at the very first paragraph in this memorandum, you will see that the memo which is offered to explain away the e-mail makes exactly the point which we've been making, and I will read this for the Court.

"It says, quote, 'As you requested, below is a draft of my report on existence of Unix-derived code in Linux. What we tried to do was to determine if there was any material from Unix in Red Hat Linux, Release 5.2. To make this determination, we used a copy of Red Hat Linux, which was purchased from the local Best Buy. We then compared it to multiple copies of Unix. We undertook an investigation about substantial similarity by comparing Linux to Unix and we did it' -- not in 25 thousand man-years, not with the supposed road map that you've heard about today, but 'with Unix and with Linux.'"

So their "evidence" seems to have weaknesses, and there is nothing else. It's all very puzzling, trying to figure out why this seems to be their only evidence, a 5-year-old study that seems not to be so very helpful. Of course, we can't see it, because it is confidential, so perhaps if I read it, I'd feel differently. But nothing changes the fact that SCO's executives did say they had done those deep dives, and the time frame wasn't 1999. What happened to those studies? And why wasn't the memo and email turned over in discovery earlier? You might wish to check out Lamlaw today too, for his take on the hearing.

It has brought me to a theory about why Mr. Silver hemmed and hawed when it was his turn to speak at the hearing, as we heard from eyewitnesses, about his involvement in the Red Hat and AutoZone cases. He repeatedly denied any "credit" for that piece of work. Mr. James introduced him as the guy who had been really deeply involved in those cases, and Mr. Silver modestly demurs and clearly gets it in the record that he wasn't involved. Here's how the conversation went:

"MR. JAMES: Your Honor, and I'm going to, and when I'm finished, what I'd like to do, if Your Honor will allow, is Mr. Silver was very involved in the Red Hat case and the other cases, and I haven't had the involvement, and with Your Honor's indulgence, if you will allow him to make a couple points, I would appreciate it. And I'm going to ask you to allow him to do that.

THE COURT: Go ahead. . . . .

THE COURT: I thought you were going to make points about Red Hat and AutoZone. He has already made points about the breadth of the Complaint. He said you have been involved and Red Hat and AutoZone.

MR. SILVER: Actually, I believe there may be confusion about that. My perspective on Red Hat and AutoZone is the perspective that I have in retrospect, because of my understanding of the breadth or these actions. I do not actually have direct involvement in Red Hat and AutoZone, and if the only reason Your Honor is allowing me to speak is on that premise, I should sit down.

THE COURT: I thought that was the premise. Isn't that what you said, Mr. James? Did I misunderstand you? I mean, you have made your arguments about the Complaint, and you and Mr. Chesler have made those arguments about what the Complaint says and what it doesn't say and how broad it is and how broad it isn't.

MR. JAMES: Let me say at this point, then, Your Honor, if I may: At a minimum, counsel's familiarity with AutoZone and with the Red Hat case is significantly greater than mine. He wrote the portions of the Reply Memo that address those cases. He has perhaps not entered an appearance, but he has much more familiarity. I will struggle through those, if you'd like me to, but Mr. Silver will do it more succinctly.

MR. SILVER: My familiarity, Your Honor, is with the overview of the entirety of the matters presented before the Court, and that allows me to describe the relationships between the different matters Mr. Chesler has presented. If Your Honor will allow me to speak to that very briefly, I would appreciate it. However, the last thing I want to do is try Your Honor's patience."

Ah! Only the overview, reflections in retrospect. I was not there. I was not involved. I'm not the one, I hear him saying. I wish to clear up that confusion.

And here we have Mr. Harrop, who has hardly been the visible centerpiece of the SCO legal team, outside counsel, tapped to step forward to tell the judge all about the SCO legal case's procedural history. It's all so peculiar, it starting to make me think that no one at Boies, Schiller wishes to have this case on their resume. IBM's Evan Chesler spoke about SCO's "Litigate it Anywhere But Here" strategy. I'm beginning to see a "Anybody But Me" stance to match. At any rate, here is Mr. Harrop's Supplemental Declaration, in which he tries to persuade the court that he does too have personal knowledge of the matters he is testifying to.


Brent O. Hatch (5715)
Mark F. James (5295)
Mark R. Clements (7172)
[address, phone, fax]

Stephen N. Zack (admitted pro hac vice)
Mark J. Heise (admitted pro hac vice)
David K. Markarian (admitted pro hac vice)
[address, phone, fax]

Robert Silver, Esq. (admitted pro hac vice)
[address, phone, fax]

Frederick S. Frei (admitted pro hac vice)
Aldo Noto (admitted pro hac vice)
John K. Harrop (admitted pro hac vice)
[address, phone, fax]

Attorneys for Plaintiff The SCO Group, Inc.












Case No. 2:03-CV-0294 DAK

Judge: Dale A. Kimball

Magistrate Brooke C. Wells



1. My name is John Harrop, and I am a Partner in the law firm of Andrews Kurth LLP, co-counsel to The SCO Group, Inc. ("SCO") in this litigation. My office is located at [address]. This Supplemental Declaration is based on my personal knowledge.

2. I submit this Supplemental Declaration as a supplement to my July 9, 2004 Declaration, which was submitted in support of SCO's Memorandum in Opposition to Defendant/Counterclaim Plaintiff IBM's Motion for Summary Judgement on IBM's Tenth Counterclaim.

3. IBM has moved to strike my July 9, 2004 Declaration for lack of my personal knowledge and lack of qualifications to address the matters that I addressed. In addition to the material in my July 9 Declaration, I set forth below the personal knowledge and qualifications for the statements in my July 9 Declaration.

4. In my July 9 Declaration in support of SCO's Rule 56(f) Motion, I set forth: (i) background facts about the pleadings and legal claims in this case; (ii) information describing the broad scope of IBM's Linux activities that are at issue in IBM's Tenth Counterclaim; (iii) an explanation of the substantial discovery that SCO should be entitled to take before the Court considers IBM's motion for summary judgment on IBM's Tenth Counterclaim; (iv) information that has been presented previously in this case, but which I reorganized, and which describes the difficulties that SCO has encountered in obtaining needed discovery relating to IBM's copyright infringement; and (v) a summary for the Court of the factual and equitable basis for SCO's need and entitlement to more discovery than SCO has obtained thus far, which includes (where necessary) references to the July 9 Declaration of Chris Sontag.

5. I have been part of SCO's outside counsel team in this case since December 2003, and have worked directly on many aspects of this case. Specifically, I have personal knowledge of the discovery matters and SCO's plans for discovery on copyright issues which are presented in my July 9 Declaration.

6. I have been an intellectual property attorney in private practice for about nine years.

7. I have reviewed, in the course of my work for SCO, all pleadings, discovery filings, and public articles that are cited, quoted or referred to in my July 9 Declaration.

8. In my July 9 Declaration (and as stated therein), I have personal and first-hand knowledge of the facts presented in describing the discovery problems that SCO has encountered in receiving material from IBM needed for analysis of copyright infringement. I relied upon that first-hand knowledge (and, as noted in my July 9 Declaration, upon the contemporaneous declaration of Chris Sontag) in presenting paragraphs 26-27, 29, 31-32, 35-36, 41-45, 46-50, 53- 54, 55-58, 59-65, 66-68, and 76-90 of my July 9 Declaration.

9. I have personal knowledge of the facts and have studied or reviewed the conclusions which support my statements in Paragraphs 5, 7, 9, 19, 20, 22, and 23.

10. I participated in SCO's attempts to compare UNIX and Linux source code, and I relied on that knowledge (and the contemporaneous Sontag and Gupta declarations) in presenting paragraphs 72 and 91-95 of my July 9 Declaration.

11. I have personal knowledge of SCO's approach to defending against IBM's Tenth Counterclaim and I relied on that knowledge in presenting paragraphs 73-75.

12. It has been common practice in the pleadings in this case to present newspaper, magazine, and Internet articles to the Court. SCO could have presented these materials which IBM finds objectionable in my July 9 Declaration in SCO's Memorandum Opposing Summary Judgment instead, and indeed did as to some of this material to which IBM objects, i.e. paragraphs 38-39.

13. The matters presented in paragraphs 70 and 71 of my July 9 Declaration are not presented to the court as proof of copyright infringement, but rather for the fact that the quoted statements by Mr. Torvalds and Mr. Morton were reported as being said. Such reports provide leads for the Rule 56(f) discovery that SCO seeks leave of the Court to conduct.

14. Moreover, my July 9 Declaration is intended to provide background and context so as to serve as a convenient reference for the Court for: (1) the history of the discovery disputes obstructing SCO's ability to develop its case; and (2) the outline of the discovery SCO needs and intends to conduct if the Court so orders.

15. I attest that the Exhibits to my July 9 Declaration are true and correct copies of the materials presented.

I declare under penalty of perjury that the foregoing Supplemental Declaration of John Harrop is true and correct.

September 7, 2004.

John Harrop


I HEREBY CERTIFY that I caused a true and correct copy of the foregoing SUPPLEMENTAL DECLARATION JOHN HARROP IN SUPPORT OF SCO'S OPPOSITION TO IBM'S MOTION TO STRIKE to be mailed by U.S. Mail, first class postage prepaid, this 7th day of September, 2004, to the following:

Alan L. Sullivan, Esq.
Todd M. Shaughnessy. Esq.
Snell & Wilmer L.L.P.

Copy To:

Evan R. Chesler, Esq.
Cravath, Swaine & Moore LLP

Donald J. Rosenberg, Esq.

Attorneys for Defendant/Counterclaim Plaintiff IBM Corp.