As you know, SCO says it will be turning over their responses to IBM's discovery requests tomorrow, as the court directed. It will then be up to IBM to say if what SCO turns over is sufficient. I have been seeing a lot of expectations about Monday, but personally, I don't expect to know much until the next court date on the 23rd, if SCO is being truthful and actually does turn over significant answers and documents.

SCO may have media pronouncements to make, but IBM has to look over what they are given and evaluate it and that takes time. They aren't given to trying this case in the media, so my best guess is that our next event in the IBM matter will be the court hearing.

SCO is obligated to provide discovery responses because IBM won both of its Motions to Compel Discovery at the last court hearing on December 5. It wasn't a coin toss as to who goes first in discovery. It was a victory for IBM, one that SCO tried to prevent.

The Linuxworld article, linked to above, seems to indicate that SCO's motion to compel will be the subject of the upcoming January 23rd hearing:

"Provided IBM is satisfied with what SCO turns over, SCO expects to be back in court on Friday January 23 pursuing its own motion to compel IBM to turn over its AIX Unix source code to SCO."

If you check on Pacer or on Groklaw's IBM Timeline, you will notice that the judge's order says:

"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 forgoing [sic] issues January 23, 2004 at 10:00 a.m."

That says to me that the foregoing issues listed, namely SCO's compliance, will be the first subject matter of the January 23rd hearing, and that SCO's motion can't be heard until after the judge decides that they have fully met their obligations to IBM. Of course, if IBM is satisfied and the judge is too, then SCO's motions to compel will be the next item the judge will address on the 23rd. SCO had wanted their motions to be heard at the same time as IBM's back on December 5, but here is what Judge Wells told SCO that day about their motions:

"MR. MCBRIDE: So Your Honor is not ruling on our motions at this point in time; is that correct?

"THE COURT: No. I'm not ruling on your motions, and that is inherent in my order that further discovery be postponed.

"MR. MCBRIDE: Very good, Your Honor.

"THE COURT: We'll address them then.

"MR. MCBRIDE: So and we'll, in this next -- the January hearing then we will address the -- our pending motions as well?

"THE COURT: Yes.

"MR. MCBRIDE: Thank you, Your Honor.

"THE COURT: All right. That's with the assumption that the discovery that SCO is to complete has been completed, all right, and with the required specificity. So what my intention is, then, is to then address the motions of SCO.

"MR. MCBRIDE: Just -- I'm just thinking procedurally whether we will have time to actually brief and agree upon whether we -- the specificity is required in advance of the hearing or whether we will be doing that at the hearing.

"THE COURT: No. I would think that should be in place prior to the hearing. If you want a date later than that, that's fine. I don't care.

"MR. MCBRIDE: Let's hold that date for the time being, and then if, for whatever reason, it appears problematic, we'll notify the Court Does that seem appropriate?

"THE COURT: It does."

You only bring a motion to compel if you can't get the other side to voluntarily give you what you feel you need to go forward. When you hit the wall with voluntary compliance, you can ask the judge to intervene and compel it, which is what happened in early December at the last court hearing. This document is part of that IBM victory.

If you remember, SCO, in its November 24th Reply Memorandum In Opposition to IBM's 2nd Motion to Compel Discovery, tried to catch IBM on a technicality, arguing that IBM had failed to meet with them to negotiate with SCO before asking the court to compel discovery. This, they said, meant that IBM's motion failed to comply with Rule 37-1(a) of that court's local rules and thus should be denied. Rule 37-1(a) says you are "to meet and confer and to set forth a specific recitation of time, date and place of, and the identity of all counsel involved in such efforts". IBM may have done that for other Interrogatories, SCO argued, but in connection with 12 and 13, they didn't.

The thing about a lawsuit is, you can't safely not answer, no matter how idiotic the other side's argument is. A curled lip doesn't count as an answer. What sets IBM apart is the meticulous way they answer even the most ridiculous claims. I feel confident that law schools will be using these documents someday to teach students how to litigate.

In this case, SCO's point wasn't so totally nonsensical that IBM could safely brush it off. SCO provided the judge a reason to dismiss the motion, if she wanted to do so. It was a reason, but was it reasonable?

I admit that when I saw this argument raised, it caused me some concern. It isn't unheard of to lose on a technicality. No doubt IBM gave some real thought to how to handle this issue, as infuriating as it must have been for them, considering they felt it had been almost a year and SCO had yet to even tell them what they were accused of, and because of SCO's taking this partial sentence of theirs out of context to make the argument they made. IBM argued that they had made "more than reasonable efforts" to get the issues resolved without the court's intervention, by means of emails, phone calls, letters, and telephone conferences, but that they couldn't come to any agreement with SCO "on any of the issues" that became the subjects of this, their second motion to compel. In support of that assertion, they attached to their motion an accompanying declaration by Todd M. Shaughnessy, one of the attorneys with their Utah law firm (remember outside counsel needs a local firm to "host" them) and this document is that declaration, which we are now adding to the collection, so it is searchable as text. The PDF is here.

In the court rules, it says you are supposed to meet with the other side before you bring a motion to compel. That makes sense, because the court doesn't want you bothering them for something you could get by simply asking the other side to give it to you.

SCO claimed that IBM failed to dot that "i" and cross that "t" when they wrote in their "Certificate of Compliance with Rule 37(a)(a)(A)", part of their motion, that they had not discussed with SCO Interrogatories 12 and 13. They explained it in the certification section, but SCO pulled out this one "admission" and tried to use it. SCO called this requirement a "strict procedural requirement" and since IBM admitted it hadn't followed the proper procedure, according to SCO's reading of the document, their second motion to compel ought to be denied. This is how SCO argued their case on this point:

"I. IBM Failed To Meet and Confer in Good Faith Before Filing its Motion to Compel

"IBM's motion to compel fails to comply with this Court's strict procedural requirement of conferring in good faith to attempt to resolve the discovery dispute without court intervention. Rule 37-1(a) of this Court's local rules specifically requires reasonable efforts to reach agreement with the opposing party on the matters set forth in the motion, and to set forth a specific recitation of time, date and place of, and the identity of all counsel involved in such efforts. Without that, 'the court will not entertain any discovery motion.' IBM has ignores this procedural requirement.

"IBM, according to its 'Certificate of Compliance with Rule 37(a)(a)(A)', attached hereto as Appendix 'A', admits that it has never discussed Interrogatories 12 and 13 with SCO's counsel. Specifically, IBM states that '[c]ounsel for the parties did not specifically discuss Interrogatory nos. 12 and 13 because, at that time, SCO had not yet answered these interrogatories.' Id. at pp.2-3. Having never discussed the two interrogatories, it is clear that no effort to resolve the issue occurred before IBM filed its second motion to compel. Based on the lack of compliance, IBM's motion should not be entertained by this court. See Rule 37-1(a)."

IBM responded by pointing out that they surely tried. This was, after all the second Motion to Compel, so the pattern of intransigence was already clear. They cite some cases, including Reidy v. Runyon, which noted "that Rule 37(a)(2)(A) does not prevent courts from addressing merits of discovery motions when 'the exigencies of time require speedy action' and 'compromise is unlikely to be achieved.'" In short, they asked the judge to be reasonable and look at the big picture, not the nit that SCO was pinning its hopes on. What's the use of meeting again if you can clearly see it will be pointless? It's not that often that you will find a procedural nit working for you, actually, except maybe in a speeding ticket case, but SCO was not wrong in giving it a whirl. You use whatever you have. Here is part of what IBM said in answer to SCO:

"I. IBM HAS MADE REASONABLE EFFORTS TO RESOLVE DISCOVERY DISPUTES WITH SCO, TO NO AVAIL.

"Contrary to SCO's assertions, IBM did not fail properly to meet and confer with SCO before filing this motion. As discussed in the accompanying declaration of Todd M. Shaughnessy, IBM has made more than reasonable efforts to confer with SCO regarding the discovery disputes before the Court. IBM and SCO exchanged numerous letters and e-mails and participated in several telephone conferences, and the parties could not reach agreement on any of the issues on which IBM has moved.

"Although IBM did not confer with SCO specifically regarding Interrogatory Nos. 12 and 13, any such effort would have been futile. SCO's responses to these two interrogatories merely 'incorporate[] its answers' to IBM's first set of discovery requests. (Exhibit A, attached to IBM's Memorandum in Support of Second Motion to Compel Discovery ('Opening Br.').) The parties had already conferred at length about those answers, and they are the subject of IBM's first motion to compel. As SCO refused to provide adequate responses to IBM's first discovery requests after lengthy discussions between the parties, and again after IBM filed its first motion to compel, there was no reason to believe that any further discussion between the parties would have been productive.2

"Since the same fundamental impasse between the parties existed with respect to IBM's first and second discovery requests, we believed it was most efficient to present both issues to the Court at the same time. There is no reason why this Court should not address IBM's second motion to compel now. See, e.g., Reidy v. Runyon, 169 F.R.D. 486, 491 (E.D.N.Y. 1997) (noting that Rule 37(a)(2)(A) does not prevent courts from addressing merits of discovery motions when 'the exigencies of time require speedy action' and 'compromise is unlikely to be achieved'); accord Land Ocean Logistics, Inc. v. Aqua Gulf Corp., 181 F.R.D. 229, 235-36 (W.D.N.Y. 1998). In fact, we understood the Court, at the initial conference with the parties, to express a preference for dealing with all of SCO's answers to IBM's discovery requests at the same time.3

"Notably, notwithstanding SCO's contention that IBM failed adequately to meet and confer before filing this motion, SCO does not assert that IBM's concerns could have been resolved by further discussion between the parties. Indeed, SCO makes perfectly clear in its opposition brief that it does not intend to provide IBM with the information it is seeking in this motion."

All motions need to have someone who was involved and knows what happened to provide their testimony, an affidavit, an affirmation, a declaration, to attach to the motion and in support of the motion. In this attorney declaration, Todd M. Shaughnessy states that he was involved in the discussions with SCO and he argues that IBM had been trying to get SCO to cooperate with their discovery requests for some time. Further discussions likely would not be productive. He testifies that there were discussions and emails exchanged, just as the motion states. He was a participant and he testifies to the efforts IBM made to get SCO to cooperate.

Anyway, he points out, it is clear asking again wouldn't have worked. SCO had shown the futility of any further discussions without the court's help in two ways, he says: First, SCO knew, from IBM's first Motion to Compel, that they felt SCO's answers to Interrogatories 1, 2 and 4 were inadequate. But in answering IBM's second motion, it "incorporated by reference" those same inadequate responses to Nos. 1, 2 and 4 as their responses to the new interrogatories. "Incorporated by reference" means they told IBM: You know those answers you thought weren't sufficient to answer your questions that led you to file your first Motion to Compel? Those are our same answers to your new questions, too. (As you may recall, Interrogatory No. 12 asked SCO to identify all material in Linux to which it has rights and describe the nature of its rights to that material. Interrogatory No. 13 asked SCO to identify whether IBM has infringed SCO's rights (and if so, how), and whether SCO itself has ever publicly disclosed that code or material (and if so, how)).

Second, he says, the proof that further discussions would be pointless is that SCO was still defending its insufficient answers and alleging that their answers were adequate, not saying that they intended to comply. Here he used SCO's own words against them, just as SCO had tried to do to IBM. SCO's reply to IBM's motion ended by saying that the motion should be denied "because SCO has fully answered the interrogatories." See what we are up against, Your Honor? Shaughnessy argues. If they are telling that to you, Judge, can we not assume they wouldn't tell just us a thing even if we had tried one more time to talk to them in a vain pro forma compliance effort prior to filing our motion?

It's a very nice move on IBM's part. The judge was sufficiently convinced by the arguments made that when she entered the courtroom she said:

"And I find also that it appears to me that if there's any argument to be made on the failure to confer under Rule 37 that -- that there has been a good faith effort to comply, but that because we can't get off the ground because of this circular problem, that I would not find that a sufficient basis for, you know, further postponing. "

Kevin McBride asked if he could try to change her mind, and she said yes, and he did try, but she ended by ruling:

"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."

Characterizing all this as a coin toss is not, to me, an accurate description. SCO fought hard to defeat these motions, and by my reading, they lost.

Here then is the Declaration, part of what won the day for IBM.

*************************************************************

SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
[address, phone, fax]

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

I, Todd M. Shaughnessy, hereby declare as follows:

1. I am a partner with the law firm of Snell & Wilmer and co-counsel for Defendant/Counterclaim Plaintiff International Business Machines Corporation ('"IBM") in the above-captioned lawsuit.

2. I submit this declaration in further support of IBM's Second Motion to Compel and, specifically, to respond to the contention by Plaintiff/Counterclaim Defendant The SCO Group, Inc. ("SCO") that IBM failed to meet and confer in good faith prior to filing its Second Motion to Compel. SCO's arguments in this regard are set forth at pages 1-2 of Plaintiff SCO's Memorandum in Opposition to IBM's Second Motion to Compel Discovery, dated November 24, 2003.

3. For the reasons explained below, and contrary to the arguments contained in SCO's memorandum, I believe that IBM satisfied its obligation under Federal Rule of Civil Procedure 37(a)(2)(A) and DUCivR 37-1(a) to make a reasonable effort to reach agreement with counsel for SCO on the subject matter of IBM's Second Motion to Compel prior to filing that motion.

4. I was personally involved in the majority of the discussions with counsel for SCO concerning the deficiencies in SCO's responses to IBM's First Set of Interrogatories and First Request for Production of Documents. In that regard, and as conceded in SCO's own Motion to Compel Discovery and Certificate of Compliance with Rule 37(a)(2)(A) dated November 4, 2003, during September and October of 2003, counsel for IBM and counsel for SCO participated in an extended exchange of letters, emails, and telephone conferences concerning each party's discovery responses to date.

5. One topic of extended discussion was SCO's answers to IBM's First Set of Interrogatories. Interrogatory No. 1 seeks the identification of the trade secrets or other confidential/proprietary information contained in Unix System V that form the basis of SCO's lawsuit against IBM; Interrogatory No. 2 asks SCO to identify who had access to this material, the nature and source of those rights, and efforts, if any, by SCO to keep that material confidential; and Interrogatory No. 4 asks SCO to describe each instance in which IBM allegedly misused or misappropriated each item of information identified. In the course of discussions concerning these interrogatories, both orally and in writing, we made it very clear to counsel for SCO exactly what information IBM was seeking and the level of detail that we believe an adequate response requires.

6. SCO failed to supplement adequately its answers to Interrogatory Nos. 1, 2, and 4, and, on October 1, 2003, IBM filed its first Motion to Compel, which is directed at those interrogatories, among others.

7. On or about October 23, 2003, SCO served its objections and responses to IBM's Second Set of Interrogatories and Second Request for production of Documents (a copy is appended as Exhibit A to IBM's Memorandum in Support of Second Motion to Compel Discovery (Nov 6, 2003)). Interrogatory No. 12 of this set sought information concerning the material in Linux (not Unix) to which SCO claims rights and the nature of these rights; Interrogatory No. 13 asks SCO to identify whether it contends IBM has infringed SCO's rights to this material (and, if so, how), and whether SCO itself has ever publicly disclosed that material.

8. SCO's response to Interrogatory Nos. 12 and 13 simply incorporates by reference its responses to Interrogatory Nos. 1, 2, and 4, which are the subject of IBM's first Motion to Compel.

9. Although directed at entirely different issues, Interrogatory Nos. 12 and 13 ask SCO to identify the material in Linux in the same fashion as IBM's earlier interrogatories concerning the material in Unix System V - i.e, by file and line of code.

10. Although I did not specifically confer with counsel for SCO on its answers to Interrogatory Nos. 12 and 13, I believe that doing so was unnecessary, and would have been pointless, for at least the following reasons:

a. SCO has, despite IBM's repeated efforts, refused to identify any material in Unix System V by file and line of code, and has resisted IBM's first Motion to Compel on this topic. Given the position SCO has taken on this topic, I believe it would have been entirely pointless to ask counsel for SCO to provide information by files and lines of code for Interrogatory Nos. 12 and 13.

b. The deficiencies in SCO's answers to Interrogatory Nos. 1, 2 and 4 were the subject of discussion among counsel. In responding to Interrogatory Nos. 12 and 13, SCO does nothing more than incorporate by reference its responses to Interrogatory Nos. 1, 2 and 4 which, at the time, were the subject of IBM's first Motion to Compel. SCO did so knowing that IBM believes those responses were deficient. I believe it would have been pointless for the parties to discuss yet again the deficiencies in SCO's responses to Interrogatory Nos. 1, 2 and 4.

c. SCO's memorandum incorrectly states that counsel for IBM did not confer with counsel for SCO regarding the issue of SCO's failure to produce documents that should be available for review by IBM. This topic was the subject of several emails exchanged between myself and Mark Heise in early- to mid-October, 2003.

11. Finally, although SCO's memorandum criticizes IBM for not conferring on the specific topic of Interrogatory Nos. 12 and 13, notably absent from that discussion is any suggestion that doing so would have caused SCO to voluntarily supplement its answers to these interrogatories. On the contrary, SCO defends it answers and takes the position that they are adequate. Thus, SCO's memorandum itself makes clear that any attempt by IBM to further confer regarding these interrogatories would have been pointless.

I declare under penalty of perjury under the laws of the State of Utah that the foregoing is true and correct.

Dated this 3rd day of December, 2003.

___(signature)__________
Todd M. Shaughnessy, Declarant

CERTIFICATE OF SERVICE

I hereby certify that on the 3rd day of December, 2003, a true and correct copy of the foregoing, was hand delivered to the following:

Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]

and was sent by U.S. Mail, postage prepaid, to the following:

Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]