SCO has filed its list of material allegedly misused by IBM with the court, with a cover sheet in which it expands on its theme with the usual style and flourish. For comparison, I suggest you compare it with the SCO public statements in 2003 about the mountain of code they claimed to have in hand that later evaporated. Or, compare it with the nonsense they told the court about Daimler Chrysler's alleged sins, which didn't hold water in the end. Or their statements about what they claimed to find in the AutoZone case... remember AutoZone correcting what it called SCO's "material misstatements"?
They say now that they have found 293 "separate technology disclosures which SCO contends are improper". Of course, they filed it under seal, so who knows? They actually claim they have lots more they aren't filing. If you believe that, that SCO would refrain from filing every jot and tittle if it had any, you must be new. But the filing in October was only 217 items. Remember when they told Judge Wells they'd answer IBM's interrogatories finally by this deadline? Well, they didn't. They're working on it, they say. So the bottom line in this case is that SCO successfully made it through discovery to this deadline without telling IBM with specificity what this case is all about. That must be some kind of record. Here's the Pacer list of recent activity in the case:
Filed & Entered: 12/22/2005 - Modification of Docket
Docket Text: Modification of Docket: Error: the minute entry for the previous teleconference states that the due date for RFAs for both parties and both discovery periods is 1/20/06. Correction: After further clarification, the order will be that the RFAs for the INITIAL discovery period will be 1/20/06. The rest of the order stands. (alp, )589 - Filed: 12/22/2005
Entered: 12/27/2005 - Notice of Filing
Docket Text: NOTICE OF FILING of Disclosure of Material Misused by IBM filed by Plaintiff SCO Group. (blk, )590 - Filed: 12/22/2005
Entered: 12/27/2005 - Sealed Document
Docket Text: **SEALED DOCUMENT**Entitled: SCOs Second Revised Supplemental Response to Defendants Six Sets of Interrogatories filed by Plaintiff SCO Group. (blk, )591 - Filed: 12/22/2005
Entered: 12/27/2005 - Sealed Document
Docket Text: **SEALED DOCUMENT** Entitled: Appendix Volumes I-XX to [589] Disclosure of Material Misused by IBM filed by Plaintiff SCO Group. (CLERKS NOTE: Appendix volumes are oversized, therefore they are not scanned into electronic images for attachment to docket event. They are contained in 7 labled boxes. They will be retained in the 5th floor sealed room for viewing by the court, and by persons with authorization to view by court order only.) (blk, )Filed & Entered: 12/21/2005 - Telephone Conference
Docket Text: Minute Entry for proceedings held before Judge Brooke C. Wells : Telephone Conference held on 12/21/2005. Court hears discussion by both parties re: Requests for Admissions (RFAs). Due date of 1/20/06 is set for both parties, for both discovery periods. Parties will agree to any additional RFAs that may be provided after 1/20/06.Attorney for Plaintiff: Ted Normand, Attorney for Defendant Todd Shaughnessey. (alp, )
And now, here's the filing's cover sheet, titled SCO's Disclosure of Material Misused by IBM [PDF], as text.
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Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[address]
[phone]
[fax]
Stuart H. Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]
Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]
Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]
Attorneys for The SCO Group, Inc.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
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The Court's Order called for the Parties to identify misused technology with specificity, in an initial report to be filed by October 28, 2005, and a final report due on December 22, 2005. This report indicates the technology that IBM has misused. The report, filed separately under seal as "EXHIBIT 1 to SCO'S DISCLOSURE OF MATERIAL MISUSED BY IBM", and the supporting appendices, identify the technology that has been improperly disclosed, where possible who made the disclosure and the manner in which the disclosure was made, the location of the technology in UNIX or a UNIX derivative or modified product as to which SCO claims proprietary rights, and the manner in which the disclosure has been contributed to Linux. The report identifies 293 separate technology disclosures which SCO contends are improper and are at issue in the instant case.
The present submission, which embraces several thousand pages of material, prepared with the assistance of several experienced technology consultants, is substantial, but distilled from an even larger universe of code and related materials. The numerosity and substantiality of the disclosures reflects the pervasive extent and sustained degree as to which IBM disclosed methods, concepts, and in many places, literal code, from UNIX and UNIX-derived technologies in order to enhance the ability of Linux to be used as a scalable and reliable operating system for businesses and as an alternative to proprietary UNIX systems such as those licensed by SCO and others. IBM has acknowledged -- both internally and externally (e.g., 2nd Am. Compl. ¶¶90-96) that it has sought in this way
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to infuse Linux with the robustness of AIX and Dynix/ptx, both of which are derivatives and modifications of UNIX System V, and subject to SCO's contractual rights.SCO is contemporaneously supplementing its prior responses to IBM interrogatories regarding these technological disclosures.
DATED this 22nd day of December, 2005.
Respectfully submitted,
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James
BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Stuart H. Singer
Stephen N. Zack
Edward Normand
By __[signature]___
Counsel for The SCO Group, Inc.
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CERTIFICATE OF SERVICE
Plaintiff, The SCO Group, Inc., hereby certifies that a true and correct copy of the foregoing SCO's Disclosure of Material Misused by IBM was served on Defendant International Business Machines Corporation on the 22nd day of December, 2005:
By U.S. Mail:
David Marriott, Esq.
Cravath, Swaine & Moore LLP
[address]
Donald J. Rosenberg, Esq.
[address]
Todd Shaughnessy, Esq.
Snell & Wilmer LLP
[address]
___[signature]___
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