GrokLaw Story 20060223040825533

This is GrokLaw Story 20060223040825533

The IBM Subpoenas, as text - Updated

Thursday, February 23 2006 @ 08:26 AM EST

Here are the subpoenas to Microsoft, Sun, HP and Baystar, attached to IBM's Notice of Service of Subpoenas Duces Tecum , as text. Thanks go to Steven J. Lilley, Bernhard Nortmann, Joachim Durchholz, ethericalzen, gumnos, brooker, and Auke Jan Kroon for doing the transcribing.

The story has hit the media. Let's take a look at a few reactions, including from Microsoft and SCO. It seems they barely know each other, to hear them tell it.

First, Jack Loftus has an interview with Tom Carey, a partner with the Boston-based intellectual property firm Bromberg & Sunstein on Search Open Source. Carey says IBM is now asking the question, Was SCO acting alone? He also shares his thoughts on the case going forward:

Q: Is it fair to ask why this SCO case is still around?
Carey: In sense that's still a good question because I think by now the marketplace does not care anymore. In a sense SCO has already lost, but they have invested millions of dollars and have basically bet the company on this lawsuit. So, they just can't stop. ...
Q: What can IBM hope to achieve with these subpoenas?
Carey: IBM has fought back nicely already and I think what this news today is, is that IBM in particular is potentially looking around to see if there is any kind of illegal conspiracy going on that might cause it to name some other party as defendant.

The Seattle Post Intelligencer's Todd Bishop got a reaction from Microsoft:

Jack Evans, a Microsoft spokesman, said the company had not received IBM's subpoena as of Wednesday evening. However, he said, Microsoft is "not involved in any way" with SCO's legal action against IBM.
"SCO's case against IBM is an issue between those two companies," Evans said, reiterating Microsoft's past statements.

Well. Could be. That's their story, and they're sticking to it. Then again, those of us following along closely noted that at the December 20th hearing, we found out that IBM learned when deposing SCO CEO Darl McBride recently that there have been a lot of emails between Darl and Microsoft people, discussing of all things Linux, emails SCO's attorneys had not turned over in discovery, so it wouldn't amaze me if IBM would like to know a bit more about all that. Matt Whipp in PCPro adds this question to the mix:

The depositions set for next month will reveal exactly what was going on.
Similarly they will answer long held questions such as how Sun ever had the rights to open-source an entire Unix platform while Linux users were being sent letters demanding licensing fees for their use of Unix IP in an open-source product.

That's a good question, as in how come Sun can distribute Linux, which it did, with all the allegedly misused materials in it and SCO didn't lift a finger? As for answers, it may not be so simple. As Carey points out in his interview, we may see some pushback from the subpoenaed parties. Blake Stowell puts the SCO spin on the events, interviewed by K.C. Jones of Tech Web:

SCO spokesman Blake Stowell said the subpoenas are a normal part of the discovery process.
"We're fine with whatever it is they want to try to find out," he said. "We're a fairly open book when it comes to those relationships."

Yes. I'm sure that's the very first word you think of when you think of SCO. "Open".

So you can follow along and check the originals, here are the PDFs:

Exhibit A - HP
Exhibit B - Baystar
Exhibit C - Microsoft
Exhibit D - Sun Microsystem

One thing I notice is that Microsoft is being asked for all documents "concerning communications or agreements relating to SCO or this litigation, including all communications with... Canopy..." That would likely mean old Canopy, in effect, back when Ralph Yarro was running it.

Update: Steven J. Vaughan-Nichols at Linux-Watch tried to get reactions from both Sun and Microsoft:

Sun spokesperson Joanne Kisling said that the company would have no comment on the subpoenas that were handed to it by IBM on Tuesday as part of the SCO Group lawsuit against Big Blue.
A Microsoft spokesman responded to Linux-Watch.com later in the day Wednesday with the following statement:
"We haven’t been served but understand we will be shortly.
"SCO’s suit against IBM is an issue between those two companies, now in the hands of the court. Microsoft is not involved in any way with or contributing to SCO's current actions with IBM or other industry actions.
"As in other cases, we will respond to proper discovery in due course. It’s important to note, however, that Microsoft, like many other companies, receives literally hundreds of requests for third-party discovery for cases in which it has no involvement."

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

1. HEWLETT-PACKARD:

EXHIBIT A

Issued by the
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

The SCO Group, Inc.

V.

International Business Machines Corporation SUBPOENA IN A CIVIL CASE
CASE NUMBER:¹ 2:03CV-0294 District of Utah

To:
Hewlett-Packard Company
[address, CA]
___YOU ARE COMMANDED to appear in the United States District Court at the place, date, and time specified below to testify in the above case.

PLACE OF TESTIMONY
COURTROOM

DATE and TIME

X YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the taking of a deposition in the above case. The testimony will be recorded by the following method(s):
[ ] stenographic; [ ] sound; [X] sound and visual

PLACE OF DEPOSITION
LegaLink San Francisco
[address, CA]
DATE AND TIME
March 15, 2006
9:00 a.m.

X YOU ARE COMMANDED to produce and permit inspection and copying of the following documents or objects at the place, date, and time specified below (list documents or objects):

See Attachment A

PLACE
LegaLink San Francisco
[address, CA]
DATE AND TIME
March 7, 2006
9:00 a.m.

____YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below.

PREMISES DATE and TIME

Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more officer, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify, Federal Rules of Civil Procedure, 30(b)(6).

ISSUING OFFICER SIGNATURE AND TITLE (INDICATE IF ATTORNEY FOR PLAINTIFF OR DEFENDANT)
[signature of David Marriott] Attorney for International Business Machines Corporation
DATE
February 21, 2006

ISSUING OFFICER'S NAME, ADDRESS AND PHONE NUMBER
David R. Marriott, Cravath, Swaine & Moore LLP, [address] New Yoork, NY [zip, phone]

(See Rule 45 Federal Rules of Civil Procedure, Parts C & D on Reverse)

¹ If action is pending in district other than the district of issuance state district under case number.

PROOF OF SERVICE

Date ________
Place ___________
Served on(Print name) ___________
Manner of Service ___________
Served By (Print name)___________
Title __________

Declaration of Server

I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained in the Proof of Service is true and correct.

Executed on
______
DATE

____________
SIGNATURE OF SERVER

_____________
ADDRESS OF SERVER

Rule 45. Federal Rules of Civil Procedure, Parts C & D

(1) A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court on behalf of which the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reaonable attorney's fee.

(2) (A) A person comanded to produce and permit inspection and copying of designated books, papers, documents or tangible things, or inspection of premises need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing or trial.

(B) Subject to paragraph (d)(2) of this rule, a person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued. If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production. Such an order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspect and copying commanded.

(3) (A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it

(i) fails to allow reasonable time for compliance
(ii) requirs a person who is not a party or an officer of the party to travel to a place more than 100 miles from the place where that person resides, is employed or regularly transaction business in person, except that subject to the provisions of clause (c)(3)(B)(ii) of this rule, such a person may in order to attend trial be commanded to travel from any such place within the satete in which the trial is held, or
(iii) requires disclosure of priviledged or other protected matter and not exception or waiver applies, or
(iv) subject a person to undue burden.

(B) If a subpoena

(i) requires disclosure of a trade secret or other confidential research, development, or commercial information or
(ii) requires disclosure of an unretained expert's opinion or information not describing specific events or occurances in dispute and resulting from the expert's study made not at the request of any party, or
(iii) requires a person who is not a party or an officer of a party to incur substantial expense to travel more than 100 miles to attend trial, the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is address will be reasonably compensated, the court may order appearance or production only upon specified conditions.

(d) DUTIES IN RESPONDING TO SUBPOENA

(1) A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand.

(2) When information subject to a subpoena is withheld on a claim that it is priviledged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, comunications, or things not produces that is sufficient to enable the demanding party to contest the claim.

Topics for 30(b)(6) Deposition of Hewlett-Packard Company

1. Agreements relating to any UNIX software product involving Hewlett-Packard and AT&T, USL, Novell, Santa Cruz, or SCO, including but not limited to software licensing agreements, sublicensing agreements, and letter agreements.

2. Agreements relating to any Hewlett-Packard software product involving Hewlett-Packard and AT&T, USL, Novell, Santa Cruz, Tarantella, or SCO.

3. Hewlett-Packard's rights and obligations, vis-à-vis AT&T, USL, Novell, Santa Cruz, Tarantella, and SCO, with respect to any Hewlett-Packard UNIX product.

4. Royalties paid by Hewlett-Packard with respect to any UNIX product.

5. Open sourcing of any Hewlett-Packard UNIX product or public disclosure by Hewlett-Packard of the source code for any Hewlett-Packard UNIX product.

6. Origin of any UNIX source code publicly disclosed or open sourced by Hewlett-Packard.

7. Competition between Hewlett-Packard's operating system products and UnixWare and OpenServer, including but not limited to the identity and the qualities and characteristics of the products.

8. Restrictions or prohibitions on Hewlett-Packard employees having access to any UNIX product, including, but not limited to, its source code.

9. All communications between Hewlett-Packard and SCO since June 28, 2002.

10. All agreements involving Hewlett-Packard and SCO.

11. The identity of and contact information for all representatives of Hewlett-Packard who have had access to and worked with or developed UNIX source code, and the other projects/products on which they have worked.

ATTACHMENT A TO SUBPOENA TO Hewlett-Packard Company

You are instructed to produce the following documents at the time and place specified in the subpoena.

Documents To Be Produced

1. All documents concerning any agreement or license between Hewlett-Packard and SCO or between Hewlett-Packard and any of SCO's predecessors in interest for the use of any UNIX source code, including but not limited to all documents relating to the terminability of any such license.

2. All documents concerning any agreements relating to any Hewlett-Packard software product involving Hewlett-Packard and AT&T, USL, Novell, Santa Cruz, Tarantella, or SCO.

3. All documents concerning Hewlett-Packard's rights and obligations, vis-à-vis AT&T, USL, Novell, Santa Cruz, Tarantella, and SCO, with respect to any Hewlett-Packard software product.

4. All documents concerning royalties paid by Hewlett-Packard with respect to any UNIX product.

5. All documents concerning open sourcing of any Hewlett-Packard UNIX product or public disclosure by Hewlett-Packard of the source code for any Hewlett-Packard UNIX product.

6. All documents concerning the origin of any UNIX source code publicly disclosed or open sourced by Hewlett-Packard.

7. All documents concerning competition between Hewlett-Packard's operating system products and Unixware or OpenServer, including but not limited to the identity and the qualities and characteristics of the products.

8. All documents concerning restrictions or prohibitions on Hewlett-Packard employees having access to UNIX source code.

9. All documents concerning any communications between Hewlett-Packard and SCO.

10. The identity of and contact information for all representatives of Hewlett-Packard who have had access to and worked with or developed UNIX source code, and the other projects/products on which they have worked.

11. All documents concerning any decision by any current or prospective customer to use HP-UX instead of OpenServer or UnixWare occurring after March 7, 2003.

12. All documents concerning any efforts to ensure or maintain the secrecy or confidentiality of any UNIX source code, know-how, concepts, techniques, or methods, including but not limited to: (a) any rule, policy, practice or procedure relating to the confidentiality or secrecy, or lack of confidentiality or secrecy, of any UNIX source code, know-how, concepts, techniques, or methods; any breach of any such rule, policy, practice or procedure; (c) the use by any person of any UNIX source code, know-how, concepts, techniques, or methods; and (d) the disclosure or availability of any UNIX source code, know-how, concepts, techniques, or methods to any person.

13. Documents sufficient to identify all licensees, sublicensees or assignees of any UNIX source code, know-how, concepts, techniques, or methods and all

persons to whom any UNIX source code, know-how, concepts, techniques, or methods has been disclosed.

14. All documents concerning SCO's rights concerning UNIX or Linux.

15. All documents concerning any agreement or understanding (written or oral) concerning SCO.

16. All documents concerning any decision, plan or offer by Hewlett-Packard (contemplated or actual) to indemnify customers concerning SCO's alleged rights concerning UNIX or Linux.

17. A copy of all UNIX materials and all soffivare materials (in electronic form, where available), including but not limited to source code and user manuals, obtained from SCO or any of SCO's predecessors in interest (including AT&T, USL, Novell or Tarantella).

Definitions and Instructions

Defendant IBM hereby incorporates by reference all instructions, definitions and rules contained in Rules 30, 33, 34, and 45 of the Federal Rules of Civil Procedure and the local rules or individual practices of this Court and supplements them with the following definitions and instructions;

A. Definitions

1. The term "communication" shall mean any transmittal of information, whether oral or written, including correspondence, electronic mail and other internet transmissions, web pages, Internet Relay Chat logs, telex, facsimile transmissions, telecopies, recordings in any medium of oral communication, telephone and message logs, notes or memoranda relating to written or oral communications.

2. The term "concerning" shall mean relating to, referring to, reflecting, describing, evidencing, referencing, discussing or constituting.

3. The term "document" shall be synonymous in meaning and usage to the broadest scope of the term used in Rule 34(a) of the Federal Rules of Civil Procedure. The term document shall include without limitation all written, phonic, graphic or recorded matter, including without limitation, information stored on computers, disks, tapes (i.e., magnetic or other storage media), World Wide Web pages, electronic mailing lists or automated fax support systems. The term "document" specifically includes electronic mail, electronic correspondence, or electronic peer-to-peer messages ("e-mail") and any attachments and files created and maintained in electronic form in the normal course of business.

4. The term "include" or "including" shall mean including without limitation.

5. The term "object code" shall mean output from a compiler or assembler which is itself executable machine code or is suitable for processing to produce executable machine code.

6. The term "person" refers to natural persons or all private or public entities.

7. The term "Santa Cruz" shall mean and include, collectively and/or individually, The Santa Cruz Operation, Inc. and all its directors, officers, authorized agents, employees, consultants, attorneys, representatives, direct and indirect contractors, entities that were acquired by or merged with The Santa Cruz Operation, Inc., and/or all other persons acting on behalf of The Santa Cruz Operation, Inc.

8. The term "SCO" shall mean and include, collectively and/or individually, Caldera Systems, Inc., Caldera International, Inc., or The SCO Group, Inc., and all its directors, officers, authorized agents, employees, consultants, attorneys, sales representatives, distributors, dealers, direct and indirect contractors, entities that were in part or in whole acquired by or merged with Caldera Systems, Inc., Caldera International, Inc., or The SCO Group, Inc., affiliates, subsidiaries or predecessor companies of Caldera Systems, Inc., Caldera International, Inc., or The SCO Group, Inc., and/or all other persons acting on behalf of Caldera Systems, Inc., Caldera International, Inc., or The SCO Group, Inc. This includes the Server Software and Professional Services divisions acquired in 2001 by Caldera International, Inc. from Tarantella, Inc., f/k/a The Santa Cruz Operation, Inc.

9. The term "source code" shall mean the human-readable form of a computer program written in the original and preferred form for human inspection and modification, and includes but is not limited to source code listings; compiler and/or assembler output listings for such source code; source code listings for macros or "includes" (both executable and mapping) listings used in such source code; job control language files; and/or other files required to create an executable version of a program, including but not limited to user interface components; panels; screen definitions and help text; and c-lists.

10. The term "HP-UX" shall mean the UNIX-branded operating system distributed and/or developed by Hewlett-Packard, including all prior versions, releases and maintenance modifications.

11. The term "Hewlett-Packard" shall mean and include, collectively and/or individually, Hewlett-Packard Company and all its directors, officers, authorized agents, employees, consultants, attorneys, sales representatives, distributors, dealers, direct and indirect contractors, entities that were acquired by or merged with Hewlett-Packard, subsidiaries of Hewlett-Packard, and/or all other persons acting on behalf of Hewlett-Packard.

12. The term "UNIX" shall mean any and all versions, flavors, or other variants of any UNIX computer operating system, including but not limited to all operating systems certified as conforming to the UNIX-brand standards set by The Open Group, the owner of the UNIX trademark.

13. The term "AT&T" shall mean and include, collectively and/or individually, AT&T Corporation and all its directors, officers, authorized agents, employees, consultants, attorneys, sales representatives, direct and indirect contractors, entities that were acquired by or merged with AT&T, subsidiaries of AT&T, including but not limited to AT&T Technologies, Inc., and/or all other persons acting on behalf of AT&T.

14. The term "USL" shall mean and include, collectively and/or individually, UNIX Systems Laboratories, Inc. and all its directors, officers, authorized agents, employees, consultants, attorneys, sales representatives, direct and indirect contractors, entities that were acquired by or merged with USL, subsidiaries of USL, and/or all other persons acting on behalf of USL.

15. The term "Novell" shall mean and include, collectively and/or individually, Novell, Inc. and all its directors, officers, authorized agents, employees,

consultants, attorneys, sales representatives, direct and indirect contractors, entities that were acquired by or merged with Novell, subsidiaries of Novell, and/or all other persons acting on behalf of Novell.

16. The term "Tarantella" shall mean and include, collectively and/or individually, Tarantella, Inc. and all its directors, officers, authorized agents, employees, consultants, attorneys, sales representatives, direct and indirect contractors, entities that were acquired by or merged with Tarantella, subsidiaries of Tarantella, and/or all other persons acting on behalf of Tarantella.

B. Instructions

1. Each paragraph should herein be construed independently and, unless otherwise directed, without reference to any other paragraph for the purpose of limitation.

2. The use of any definition for the purposes of this request shall not be deemed to constitute an agreement or acknowledgment on the part of defendant that such definition is accurate, meaningful or appropriate for any other purpose in this action.

3. Unless otherwise specified, the documents requested are the responsive documents in your possession, control or custody that were prepared, written, sent, dated, received, applicable or in effect at any time up to the date of your compliance with this demand.

4. Each requested document shall be produced in its entirety. If a document responsive to any request cannot be produced in full, it shall be produced to the extent possible with an explanation stating why production of the remainder is not possible.

5. Each page or sheet produced is to be marked with a consecutive document control number.

6. All documents produced in response to this subpoena shall be produced in the same order as they are kept or maintained in the ordinary course of business and, where attached, shall not be separated or disassembled.

7. With respect to any document responsive to this request that is withheld from production based upon a claim of privilege, please provide the information required pursuant to Rules 26(b)(5) and 45(d)(2) of the federal Rules of Civil Procedure.

8. If, for reasons other than a claim of privilege, you refuse to produce any document requested herein, state the grounds upon which the refusal is based with sufficient specificity to permit a determination of the propriety of such refusal.

9. If there were no documents responsive to any paragraph or subparagraph set forth in the requests, please provide a written response so stating.

2. BAYSTAR CAPITAL:

EXHIBIT B

Issued by the
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

The SCO Group, Inc.

V.

International Business Machines Corporation SUBPOENA IN A CIVIL CASE
CASE NUMBER:¹ 2:03CV-0294 District of Utah

To:
Baystar Capital
[address, CA]
___YOU ARE COMMANDED to appear in the United States District Court at the place, date, and time specified below to testify in the above case.

PLACE OF TESTIMONY
COURTROOM

DATE and TIME

X YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the taking of a deposition in the above case. The testimony will be recorded by the following method(s):
[ ] stenographic; [ ] sound; [X] sound and visual

PLACE OF DEPOSITION
LegaLink San Francisco
[address, CA]
DATE AND TIME
March 16, 2006
9:00 a.m.

X YOU ARE COMMANDED to produce and permit inspection and copying of the following documents or objects at the place, date, and time specified below (list documents or objects):

See Attachment A

PLACE
LegaLink San Francisco
[address, CA]
DATE AND TIME
March 7, 2006
9:00 a.m.

____YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below.

PREMISES DATE and TIME

Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more officer, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify, Federal Rules of Civil Procedure, 30(b)(6).

ISSUING OFFICER SIGNATURE AND TITLE (INDICATE IF ATTORNEY FOR PLAINTIFF OR DEFENDANT)
[signature of David Marriott] Attorney for International Business Machines Corporation
DATE
February 21, 2006

ISSUING OFFICER'S NAME, ADDRESS AND PHONE NUMBER
David R. Marriott, Cravath, Swaine & Moore LLP, [address] New York, NY [zip, phone]

(See Rule 45 Federal Rules of Civil Procedure, Parts C & D on Reverse)

¹ If action is pending in district other than the district of issuance state district under case number.

PROOF OF SERVICE

Date ________
Place_________
Served on(Print name)_________
Manner of Service___________
Served By (Print name)________
Title ________

Declaration of Server

I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained in the Proof of Service is true and correct.

Executed on
______
DATE

____________
SIGNATURE OF SERVER

_____________
ADDRESS OF SERVER

Rule 45. Federal Rules of Civil Procedure, Parts C & D

(3) (A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it

(i) fails to allow reasonable time for compliance
(ii) requirs a person who is not a party or an officer of the party to travel to a place more than 100 miles from the place where that person resides, is employed or regularly transaction business in person, except that subject to the provisions of clause (c)(3)(B)(ii) of this rule, such a person may in order to attend trial be commanded to travel from any such place within the satete in which the trial is held, or
(iii) requires disclosure of priviledged or other protected matter and not exception or waiver applies, or
(iv) subject a person to undue burden.

(B) If a subpoena

(i) requires disclosure of a trade secret or other confidential research, development, or commercial information or
(ii) requires disclosure of an unretained expert's opinion or information not describing specific events or occurances in dispute and resulting from the expert's study made not at the request of any party, or
(iii) requires a person who is not a party or an officer of a party to incur substantial expense to travel more than 100 miles to attend trial, the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is address will be reasonably compensated, the court may order appearance or production only upon specified conditions.

(d) DUTIES IN RESPONDING TO SUBPOENA

Topics for 30(b)(6) Deposition of Baystar Capital

1. Communications between Baystar and SCO.

2. Agreements involving Baystar and SCO.

3. Baystar's relationship with SCO.

4. Statements made by Baystar about SCO.

5. Baystar's investment in SCO.

6. Baystar's knowledge of SCO's business.

7. Communications between Baystar and Microsoft regarding SCO, IBM, or this litigation.

8. Baystar's response to and efforts to comply with this subpoena and IBM's subpoena to Baystar dated May 10, 2004.

ATTACHMENT A TO SUBPOENA TO BAYSTAR CAPITAL

You are instructed to produce the following documents at the time and place specified in the subpoena.

Documents To Be Produced

1. All documents concerning communications between Baystar and SCO.

2. All documents concerning agreements involving Baystar and SCO.

3. All documents concerning Baystar's relationship with SCO.

4. All documents concerning statements made by Baystar about SCO.

5. All documents concerning Baystar's investment in SCO.

6. All documents concerning Baystar's knowledge of SCO's business.

7. All documents concerning communications between Baystar and Microsoft regarding SCO, IBM, or this litigation.

Definitions and Instructions

A. Definitions

2. The term "concerning" shall mean relating to, referring to, reflecting, describing, evidencing, referencing, discussing or constituting.

4. The term "person" refers to natural persons or all private or public entities.

5. The term "SCO" shall mean and include, collectively and/or individually, Caldera Systems, Inc., Caldera International, Inc., or The SCO Group, Inc., and all its directors, officers, authorized agents, employees, consultants, attorneys, sales representatives, distributors, dealers, direct and indirect contractors, entities that were in part or in whole acquired by or merged with Caldera Systems, Inc., Caldera International, Inc., or The SCO Group, Inc., affiliates, subsidiaries or predecessor companies of Caldera Systems, Inc., Caldera International, Inc., or The SCO Group, Inc., and/or all other persons acting on behalf of Caldera Systems, Inc., Caldera International, Inc., or The SCO Group, Inc. This includes the Server Software and Professional Services divisions

acquired in 2001 by Caldera International, Inc. from Tarantella, Inc., f/k/a The Santa Cruz Operation, Inc.

6. The term "Baystar" shall mean and include, collectively and/or individually, Baystar Captial and all its directors, officers, authorized agents, employees, consultants, attorneys, representatives, direct and indirect contractors, and/or all other persons acting on behalf of Baystar Capital.

7. The term "Microsoft" shall mean and include, collectively and/or individually, Microsoft Corporation and all its directors, officers, authorized agents, employees, consultants, attorneys, representatives, direct and indirect contractors, and/or all other persons acting on behalf of Microsoft Corporation.

B. Instructions

1. Each paragraph should herein be construed independently and, unless otherwise directed, without reference to any other paragraph for the purpose of limitation.

4. Each requested document shall be produced in its entirety. If a document responsive to any request cannot be produced in full, it shall be produced to the

extent possible with an explanation stating why production of the remainder is not possible.

5. Each page or sheet produced is to be marked with a consecutive document control number.

9. If there were no documents responsive to any paragraph or subparagraph set forth in the requests, please provide a written response so stating.

3. MICROSOFT:

EXHIBIT C

Issued by the
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON

The SCO Group, Inc.

V.

International Business Machines Corporation SUBPOENA IN A CIVIL CASE
CASE NUMBER:¹ 2:03CV-0294 District of Utah

To:
Microsoft Corporation
[address, WA]
___YOU ARE COMMANDED to appear in the United States District Court at the place, date, and time specified below to testify in the above case.

PLACE OF TESTIMONY
COURTROOM

DATE and TIME

X YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the taking of a deposition in the above case. The testimony will be recorded by the following method(s):
[ ] stenographic; [ ] sound; [X] sound and visual

PLACE OF DEPOSITION
Premiere Realtime Reporting and Video
[address, WA]
DATE AND TIME
March 14, 2006
9:00 a.m.

X YOU ARE COMMANDED to produce and permit inspection and copying of the following documents or objects at the place, date, and time specified below (list documents or objects):

See Attachment A

PLACE
Premiere Realtime Reporting and Video
[address, WA]
DATE AND TIME
March 7, 2006
9:00 a.m.

____YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below.

PREMISES DATE and TIME

Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more officer, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify, Federal Rules of Civil Procedure, 30(b)(6).

ISSUING OFFICER SIGNATURE AND TITLE (INDICATE IF ATTORNEY FOR PLAINTIFF OR DEFENDANT)
[signature of David Marriott] Attorney for International Business Machines Corporation
DATE
February 21, 2006

ISSUING OFFICER'S NAME, ADDRESS AND PHONE NUMBER
David R. Marriott, Cravath, Swaine & Moore LLP, [address] New York, NY [zip, phone]

(See Rule 45 Federal Rules of Civil Procedure, Parts C & D on Reverse)

¹ If action is pending in district other than the district of issuance state district under case number.

PROOF OF SERVICE

Date ________
Place _________
Served on(Print name)________
Manner of Service __________
Served By (Print name)__________
Title ______________

Declaration of Server

I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained in the Proof of Service is true and correct.

Executed on
______
DATE

____________
SIGNATURE OF SERVER

_____________
ADDRESS OF SERVER

Rule 45. Federal Rules of Civil Procedure, Parts C & D

(3) (A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it

(i) fails to allow reasonable time for compliance
(ii) requirs a person who is not a party or an officer of the party to travel to a place more than 100 miles from the place where that person resides, is employed or regularly transaction business in person, except that subject to the provisions of clause (c)(3)(B)(ii) of this rule, such a person may in order to attend trial be commanded to travel from any such place within the satete in which the trial is held, or
(iii) requires disclosure of priviledged or other protected matter and not exception or waiver applies, or
(iv) subject a person to undue burden.

(B) If a subpoena

(i) requires disclosure of a trade secret or other confidential research, development, or commercial information or
(ii) requires disclosure of an unretained expert's opinion or information not describing specific events or occurances in dispute and resulting from the expert's study made not at the request of any party, or
(iii) requires a person who is not a party or an officer of a party to incur substantial expense to travel more than 100 miles to attend trial, the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is address will be reasonably compensated, the court may order appearance or production only upon specified conditions.

(d) DUTIES IN RESPONDING TO SUBPOENA

Topics for 30(b)(6) Deposition of Microsoft Corporation

1. Agreements relating to any UNIX product involving Microsoft and AT&T, USL, Novell, Santa Cruz or SCO, including but not limited to: (a) the software licensing agreements with AT&T executed by Microsoft on December 1, 1981, August 13, 1986 and May 27, 1988; (b) the sublicensing agreement with AT&T executed by Microsoft on October 9, 1986; (c) the letter agreements with AT&T acknowledged by Microsoft on October 13, 1983, June 3, 1984, January 17, 1985, September 30, 1985, December 10, 1985, August 21, 1986, October 1, 1986, June 26 1989, January 31, 1990, June 6, 1990, and July 20, 1990; (d) the letter agreement with USL acknowledged by Microsoft on June 16, 1992; (e) any SCOSource license agreement with SCO; and (f) the Release, License and Option Agreement with SCO effective as of April 29, 2003, and amendments thereto.

2. Agreements relating to any Microsoft UNIX product involving Microsoft and AT&T, USL, Novell, Santa Cruz, or SCO.

3. Microsoft's rights and obligations, vis-à-vis AT&T, USL, Novell, Santa Cruz, and SCO, with respect to any Microsoft UNIX product.

4. Royalties paid by Microsoft with respect to any UNIX product.

5. Origin of any UNIX source code publicly disclosed or open sourced by Microsoft.

6. Competition between Microsoft's operating system products and UnixWare and OpenServer, including but not limited to the identity and quantities and characteristics of the products.

7. Restrictions or prohibitions on Microsoft employees having access to any UNIX product, including, but not limited to, its source code.

8. The antitrust litigation brought against Microsoft by Caldera, Inc. in the United States District Court for the District of Utah.

9. All communications between Microsoft and SCO since June 28, 2002, including but not limited to Darl McBride's May 2003 communication with Steven Ballmer regarding SCO's rights to the UNIX operating system.

10. All agreements involving Microsoft and SCO.

11. The identity of and contact information for all representatives of Microsoft who have had access to and worked with or developed UNIX source code, and the other projects/products on which they have worked.

12. Microsoft's business strategy regarding Linux.

13. All communications or agreements relating to SCO or this litigation, including all communications with Baystar, Royal Bank of Canada, and Everyone's Internet, Ltd.

ATTACHMENT A TO SUBPOENA TO MICROSOFT CORPORATION

You are instructed to produce the following documents at the time and place specified in the subpoena.

Documents To Be Produced

All documents concerning agreements involving Microsoft and AT&T, USL, Novell, Santa Cruz, or SCO relating to any UNIX product.

All documents concerning Microsoft's rights and obligations, vis-à-vis AT&T, USL, Novell, Santa Cruz, and SCO, with respect to any Microsoft UNIX product.

All documents concerning royalties paid by Microsoft with respect to any UNIX product.

All documents concerning the origin of any UNIX source code publicly disclosed or open sourced by Microsoft.

All documents concerning competition between Microsoft's operating system products and UnixWare and OpenServer, including but not limited to the identity and the qualities and characteristics of the products.

All documents concerning restrictions or prohibitions on Microsoft employees having access to any UNIX product.

All documents concerning the antitrust litigation brought against Microsoft by Caldera, Inc. in the United States District Court for the District of Utah.

All documents concerning any communications between Microsoft and SCO since June 28, 2002.

All documents concerning any agreements involving Microsoft and SCO, including but not limited to Darl McBride's May 2003 communication with Steven Ballmer regarding SCO's rights to the UNIX operating system.

All documents concerning the identity of and contact information for all representatives of Microsoft who have had access to and worked with or developed UNIX source code, and the other projects/products on which they have worked.

All documents concerning Microsoft's business strategy regarding Linux.

All documents concerning communications or agreements relating to SCO or this litigation, including all communications with SCO's employees, shareholders, directors, officers, Baystar, Canopy, Royal Bank of Canada, and/or Everyone's Internet, Ltd..

All documents concerning any contracts relating to UNIX or Linux, including but not limited to licenses, licensing agreements, software agreements and sublicensing agreements.

All documents concerning communications or agreements relating to SCO or this litigation, including all communications with Baystar, Royal Bank of Canada, and Everyone's Internet, Ltd.

A copy of all UNIX materials and all software materials (in electronic form, where available), including but not limited to source code and user manuals, obtained from SCO or any of SCO's predecessors in interest (including AT&T, USL, Novell or Tarantella).

Definitions and Instructions

The instructions, definitions, and rules contained in the Federal Rules of Civil Procedure, including in particular Rules 30, 33, 34, and 45, and the local rules or individual practices of this Court are incorporated herein by reference and supplemented with the following definitions and instructions:

A. Definitions

1. The term "communication" shall mean any transmittal of information, whether oral or written, including correspondence, electronic mail and other internet transmissions, web pages, Internet Relay Chat logs, instant messages, telexes, facsimile transmissions, telecopies, recordings in any medium or oral communication, telephone or message logs, or notes or memoranda concerning written or oral communications.

2. The term "Canopy" shall mean and include, collectively and/or individually, The Canopy Group, Inc. and all its directors, officers, authorized agents, employees, consultants, attorneys, representatives, direct and indirect contractors, and/or all other persons acting on behalf of The Canopy Group, Inc.

3. The term "concerning" shall mean relating to, referring to, reflecting, describing, evidencing, referencing, discussing or constituting.

4. The term "document" shall be synonymous in meaning and usage with the broadest scope of the term used in Rule 34(a) of the Federal Rules of Civil Procedure. The term "document" shall include without limitation all written, phonic, graphic or recorded matter, including without limitation, information stored on computers, disks, tapes (i.e., magnetic or other storage media), World Wide Web pages,

electronic mailing lists or automated fax support systems. The term "document" specifically includes electronic mail, electronic correspondence, or electronic peer-to-peer messages ("e-mail") and any attachments and files created and maintained in electronic form in the normal course of business.

5. The term "including" shall mean including without limitiation.

6. The term "Linux" shall mean any and all versions, or other variants of any Linux computer operating system, including but not limited to any Linux kernel and/or GNU tools suite.

7. The term "Microsoft" shall mean and include, collectively and/or individually, Microsoft Corporation and all of its directors, officers, authorized agents, employees, consultants, attorneys, representatives, direct and indirect contractors, and/or all persons acting on behalf of Microsoft Corporation.

8. The term "person" shall mean any natural person or any private or public entity.

9. The term "Santa Cruz" shall mean and include, collectively and/or individually, The Santa Cruz Operation, Inc. and all its directors, officers, authorized agents, employees, consultants, attorneys, representatives, direct and indirect contractors, entities that were acquired by or merged with The Santa Cruz Operation, Inc., and/or all other persons acting on behalf of The Santa Cruz Operation, Inc.

10. The term "SCO" shall mean and include, collectively and/or individually, plaintiff Caldera Systems, Inc., Caldera International, Inc., or The SCO Group, Inc., and all its directors, officers, authorized agents, employees, consultants, attorneys, sales representatives, direct and indirect contractors, entities that were in part

or in whole acquired by or merged with Caldera Systems, Inc., Caldera International, Inc., or The Santa Cruz Operation, Inc., affiliates, subsidiaries or predecessor companies of Caldera Systems, Inc., Caldera International, Inc., or The Santa Cruz Operation, Inc. This includes the Server Software and Professional Services divisions acquired in 2001 by Caldera International, Inc. from Tarantella, Inc., f/k/a The Santa Cruz Operation, Inc.

11. The term "source code" shall mean the human-readable form of a computer program written in the original and preferred form for human inspection and modification, and includes but is not limited to source code listings; compiler and/or assembler output listings for such source code; source code listings for macros or "includes" (both executable and mapping) listings used in such source code; job control language files; and/or other files required to create an executable version of a program, including but not limited to user interface components; panels; screen definitions and help text; and c-lists.

12. The term "UNIX" shall mean all predecessors to, and versions of, the UNIX System V computer operating system, including but not limited to: UNIX System III; UNIX System IV; UNIX System V; UNIX System V Release 2; UNIX System V Release 3; UNIX System V Release 4; UNIX System V/286; and/or UNIX System V/386.

14. The term "AT&T" shall mean and include, collectively and/or individually, AT&T Corporation and all its directors, officers, authorized agents, employees, consultants, attorneys, sales representatives, direct and indirect contractors,

entities that were acquired by or merged with AT&T, subsidiaries of AT&T, including but not limited to AT&T Technologies, Inc., and/or all other persons acting on behalf of AT&T.

15.The term "Baystar" shall mean and include, collectively and/or individually, Baystar Capital and all its directors, officers, authorized agents, employees, consultants, attorneys, representatives, direct and indirect contractors, and/or all other persons acting on behalf of Baystar Capital.

16. The term "USL" shall mean and include, collectively and/or individually, UNIX Systems Laboratories, Inc. and all its directors, officers, authorized agents, employees, consultants, attorneys, sales representatives, direct and indirect contractors, entities that were acquired by or merged with USL, subsidiaries of USL, and/or all other persons acting on behalf of USL.

18. The term "Novell" shall mean and include, collectively and/or individually, Novell, Inc. and all its directors, officers, authorized agents, employees, consultants, attorneys, sales representatives, direct and indirect contractors, entities that were acquired by or merged with Novell, subsidiaries of Novell, and/or all other persons acting on behalf of Novell.

19. The term "Tarantella" shall mean and include, collectively and/or individually, Tarantella, Inc. and all its directors, officers, authorized agents, employees, consultants, attorneys, sales representatives, direct and indirect contractors, entities that were acquired by or merged with Tarantella, subsidiaries of Tarantella, and/or all other persons acting on behalf of Tarantella.

20. The term "Everyone's Internet, Ltd." shall mean and include, collectively and/or individually, Everyone's Internet, Ltd. and all its directors, officers, authorized agents, employees, consultants, attorneys, sales representatives, direct and indirect contractors, entities that were acquired by or merged with Everyone's Internet, Ltd., subsidiaries of Everyone's Internet, Ltd., and/or all other persons acting on behalf of Everyone's Internet, Ltd.

B. Instructions

1. Each paragraph should herein be construed independently and, unless otherwise directed, without reference to any other paragraph for the purpose of limitation.

2. The use of any definition for the purposes of this request shall not be deemed to constitute an agreement or acknowledgment on the part of IBM that such definition is accurate, meaningful or appropriate for any other purpose in this action.

3. Each requested document shall be produced in its entirety. If a document responsive to any request cannot be produced in full, it shall be produced to the extent possible with an explanation stating why production of the remainder is not possible.

4. Each page or sheet produced is to be marked with a consecutive document control number.

5. All documents produced in response to this subpoena shall be produced in the same order as they are kept or maintained in the ordinary course of business and, where attached, shall not be separated or disassembled.

6. All documents produced in response to the subpoena shall be produced, where available, in electronic or machine-readable form.

7. With respect to any document responsive to this subpoena that is withheld from production upon claim of privilege, please provide the information required pursuant to Rules 26(b)(5) and 45(d)(2) of the Federal Rules of Civil Procedure.

8. If, for reasons other than a claim of privilege, you refuse to produce any document subpoenaed herein, state the grounds upon which the refusal is based with sufficient specificity to permit a determination of the propriety of such refusal.

9. If there are no documents responsive to any paragraph or subparagraph set forth in the subpoena, please provide a written response so stating.

4. SUN MICROSYSTEMS:

EXHIBIT D

Issued by the
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

The SCO Group, Inc.

V.

International Business Machines Corporation SUBPOENA IN A CIVIL CASE
CASE NUMBER:¹ 2:03CV-0294 District of Utah

To:
Sun Microsystems, Inc.
[address, CA]
___YOU ARE COMMANDED to appear in the United States District Court at the place, date, and time specified below to testify in the above case.

PLACE OF TESTIMONY
COURTROOM

DATE and TIME

X YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the taking of a deposition in the above case. The testimony will be recorded by the following method(s):
[ ] stenographic; [ ] sound; [X] sound and visual

PLACE OF DEPOSITION
Bell & Myers
[address, CA]
DATE AND TIME
March 7, 2006
9: 00 a.m.

X YOU ARE COMMANDED to produce and permit inspection and copying of the following documents or objects at the place, date, and time specified below (list documents or objects):

See Attachment A

PLACE
Bell & Myers
[address, CA]
DATE AND TIME
March 7, 2006
9:00 a.m.

____YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below.

PREMISES DATE and TIME

Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more officer, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify, Federal Rules of Civil Procedure, 30(b)(6).

ISSUING OFFICER SIGNATURE AND TITLE (INDICATE IF ATTORNEY FOR PLAINTIFF OR DEFENDANT)
[signature of David Marriott] Attorney for International Business Machines Corporation
DATE
February 21, 2006

ISSUING OFFICER'S NAME, ADDRESS AND PHONE NUMBER
David R. Marriott, Cravath, Swaine & Moore LLP, [address] New York, NY [zip, phone]

(See Rule 45 Federal Rules of Civil Procedure, Parts C & D on Reverse)

¹ If action is pending in district other than the district of issuance state district under case number.

PROOF OF SERVICE

Date _______
Place _________
Served on(Print name) __________
Manner of Service ___________
Served By (Print name) _________
Title __________

Declaration of Server

I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained in the Proof of Service is true and correct.

Executed on
______
DATE

____________
SIGNATURE OF SERVER

_____________
ADDRESS OF SERVER

Rule 45. Federal Rules of Civil Procedure, Parts C & D

(3) (A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it

(i) fails to allow reasonable time for compliance
(ii) requirs a person who is not a party or an officer of the party to travel to a place more than 100 miles from the place where that person resides, is employed or regularly transaction business in person, except that subject to the provisions of clause (c)(3)(B)(ii) of this rule, such a person may in order to attend trial be commanded to travel from any such place within the satete in which the trial is held, or
(iii) requires disclosure of priviledged or other protected matter and not exception or waiver applies, or
(iv) subject a person to undue burden.

(B) If a subpoena

(i) requires disclosure of a trade secret or other confidential research, development, or commercial information or
(ii) requires disclosure of an unretained expert's opinion or information not describing specific events or occurances in dispute and resulting from the expert's study made not at the request of any party, or
(iii) requires a person who is not a party or an officer of a party to incur substantial expense to travel more than 100 miles to attend trial, the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is address will be reasonably compensated, the court may order appearance or production only upon specified conditions.

(d) DUTIES IN RESPONDING TO SUBPOENA

Topics for 30(b)(6) Deposition of Sun Microsystems, Inc

1. Agreements relating to any UNIX software product involving Sun and AT&T, USL, Novell, Santa Cruz, or SCO, including but not limited to: (a) the software licensing agreements with AT&T executed on July 17, 1985, April 24, 1986, and May 21, 1986; (b) the sublicensing agreement with AT&T executed on August 7, 1986; (c) the letter agreements with AT&T acknowledged by Sun on January 12, 1986, January 12, 1987, February 20, 1987, June 19, 1987, August 11, 1987, March 17, 1988, July 19, 1989, September 13, 1990, December 14, 1990; (d) the letter agreement with USL acknowledged by Sun on October 3, 1992; (e) the software licensing agreement with Novell executed on March 17, 1994; and (f) the software licensing agreement with SCO executed on February 25, 2003.

2. Agreements relating to any Sun software product involving Sun and AT&T, USL, Novell, Santa Cruz, Tarantella, or SCO.

3. Sun's rights and obligations, vis-à-vis AT&T, USL, Novell, Santa Cruz, Tarantella, and SCO, with respect to any Sun software product.

4. Royalties paid by Sun with respect to any UNIX product.

5. Open sourcing of any Sun UNIX product or public disclosure by Sun of the source code for any Sun UNIX product.

6. Origin of any UNIX source code publicly disclosed or open sourced by Sun.

7. Competition between Solaris and UnixWare and OpenServer, including but not limited to the identity and the qualities and characteristics of the products.

8. Restrictions or prohibitions on Sun employees having access to any UnixWare product, including, but not limited to, its source code.

9. All communications between Sun and SCO since June 28, 2002, including but not limited to: (a) communications between SCO and Sun from February 2003 to May 2003 relating to any software licensing agreements; (b) Darl McBride's May 2003 communication with Scott McNealy regarding SCO's rights to the UNIX operating system, and (c) discussions of business opportunities between SCO and Sun.

10. The identity of and contact information for all representatives of Sun whohave had access to and worked with or develloped UNIX source code, and the other projects/products on which they have worked.

11. Involvement by Sun in the development of Linux.

ATTACHMENT A TO SUBPOENA TO SUN MICROSYSTEMS, INC.

You are instructed to produce the following documents at the time and place specified in the subpoena.

Documents To Be Produced

1. All documents concerning any agreement or license between Sun and SCO or between Sun and any of SCO's predecessors in interest for the use of any UNIX source code, including but not limited to all documents relating to the terminability of any such license.

2. All documents concerning any agreements relating to any Sun software product involving Sun and AT&T, USL, Novell, Santa Cruz, Tarantella, or SCO.

3. All documents concerning Sun's rights and obligations, vis-à-vis AT&T, USL, Novell, Santa Cruz, Tarantella, and SCO, with respect to any Sun software product.

4. All documents concerning royalties paid by Sun with respect to any UNIX product.

5. All documents concerning open sourcing of any Sun UNIX product or public disclosure by Sun of the source code for any Sun UNIX product.

6. All documents concerning the origin of any UNIX source code publicly disclosed or open sourced by Sun.

7. All documents concerning competition between Solaris and Unixware and OpenServer, including but not limited to the identity and hte qualities and characteristics of the products.

8. All documents concerning restrictions or prohibitions on Sun employees having access to UNIX code.

9. All documents concerning any communications between Sun and SCO, including but not limited to: (a) communications between SCO and Sun from February 2003 to May 2003 relating to any software licensing agreements; (b) Darl McBride's May 2003 communications with Scott McNealy regarding SCO's rights to the UNIX operating system, and (c) disclosed of business opportunities between SCO and Sun.

10. The identity of and contact information for all representatives of Sun who ahve had access to and worked with or developed UNIX source code, and the other projects/products on which they have worked.

11. All documents concerning any decision by any current or prospective customer to use Solaris instead of OpenServer or UnixWare occuring after March 7. 2003.

12. All documents concerning any efforts to ensure or maintain the secrecy or confidentiality of any UNIX source code, know-how, concepts, techniques, or methods, including but not limited to: (a) any rule, policy, practice or procedure relating, to the confidentiality or secrecy or lack of confidentiality or secrecy of any UNIX source code, know-how, concepts, techniques, or methods; any breach of any such rule, policy, practice, or procedure; (c) the use by any person of any UNIX source code, know-how, concepts, techniques, or methods; and (d) the disclosure or availability of any UNIX source code, know-how, concepts, techniques, or methods to any person.

13. Documents sufficient to identify all licensees, sublicensees or assignees of any UNIX source code, know-how, concepts, techniques, or methods and all persons to whom any UNIX source code, know-how, concepts, techniques, or methods has been disclosed.

14. All documents concerning SCO's rights concerning UNIX or Linux.

15. All documents concerning any agreement or understanding (written or oral) concerning SCO.

16. All documents concerning involvement by Sun in the developed of Linux.

17. All documents concerning any decision, plan or offer by Sun (contemplated or actual) to indemnify customers concerning SCO's alleged rights concerning UNIX or Linux.

18. A copy of all UNIX materials and all software materials (in electronic form, where available), including but not limited to source code and user manuals, obtained from SCO or any of SCO's predecessors in interest (including AT&T, USL, Novell or Tarantella).

Definitions and Instructions

Defendant IBM hereby incorporates all instructions, definitions and rules contained in Rules 30, 33, 34, and 45 of the Federal Rules of Civil Procedure and the local rules or individual practices of this Court and supplements them with the following definitions and instructions:

A. Definitions

The term "communication" shall mean any transmittal of information, whether oral or written, including correspondence, electronic mail and other internet transmissions, web pages, Internet Relay Chat logs, telex, facsimile transmissions, telecopies, recordings in any medium of oral communication, telephone and message logs, notes or memoranda relating to written or oral communications.

The term "concerning" shall mean relating to, referring to, reflecting, describing, evidencing, referencing, discussing or constituting.

The term "document" shall be synonymous in meaning and usage to the broadest scope of the term used in Rule 34(a) of the Federal Rules of Civil Procedure. The term document shall include without limitation all written, phonic, graphic or recorded matter including without limitation, information stord on computers, disks, tapes (i.e., magnetic or other storage media), World Wide Web pages, electronic mailing lists or automated fax support systems. The term "document" specifically includes electronic mail, electronic correspondence, or electronic peer-to-peer messages ("e-mail") and any attachments and files created and maintained in electronic form in the normal course of business.

The term "include" or "including" shall mean including without limitation.

The term "object code" shall mean output from a compiler or assembler which is itself executable machine code or is suitable for processing to produce executable machine code.

The term "person" refers to natural persons or all private or putlic entities.

The term "Santa Cruz" shall mean and include, collectively and/or individually, The Santa Cruz Operation, Inc. and all of its directors, officers, authorized agents, employees, consultants, attorneys, representatives, direct and indirect contractors, entities that were acquired by or merged with The Santa Cruz Operation, Inc.

The term "SCO" shall mean and include, collectively and/or individually Caldera Systems, Inc., Caldera International, Inc., or The SCO Group, Inc., and all its directors, officers, authorized agents, employees, consultants, attorneys, sales representatives, distributors, dealers, direct and indirect contractors, entities that were in part or in whole acquired by or merged with Caldera Systems, Inc. Caldera International, Inc., or The SCO Group, Inc., affiliates, subsidiaries or predecessor companies of Caldera Systems, Inc., or The SCO Group, Inc., and/or all other persons acting on behalf of Caldera Systems, Inc., Caldera International, Inc., or The SCO Group, Inc. This includes the Server Software and Professional Services divisions acquired in 2001 by Caldera International, Inc. from Tarantella, Inc., f/k/a The Santa Cruz Operation, Inc.

The term "source code" shall mean the human-readable form of a computer program written in the original and preferred form for human inspection and modification, and includes but is not limited to source code listings; compiler and/or assembler output listings for such source code; source code listings for macros or "includes" (both executable and mapping) listings used in such source code; job control
10
language files; and/or other files required to create an executable version of a program, including but not limited to user interface components; panels; screen definitions and help text; and c-lists.

The term "Solaris" shall mean the UNIX-branded operating system distributed and/or developed by Sun, including all prior versions, releases and maintenance modifications.

The term "Sun" shall mean and include, collectively and/or individually, Sun Microsystems, Inc. and all its directors, officers, authorized agents, employees, consultants, attorneys, sales representatives, distributed dealers, direct and indirect control, entities that were acquired by or merged with Sun, subsidiaries of Sun, and/or all other persons acting on behalf of Sun.

The term "UNIX" shall mean any and all versions, flavors, or other variants of any UNIX computer operating system, including but not limited to all operating systems certified as conforming to the UNIX-brand standards set by The Open Group, the owner of the UNIX trademrk.

The term "AT&T" shall mean and include, collectively and/or individually, AT&T Corporation and all its directors, officers, authorized agents, employees, consultants, attorneys, sales representatives, direct and indirect contractors, entities that were acquired or merged with AT&T, subsidiaries of AT&T, including but not limited to AT&T Technologies, Inc., and/or all other persons acting on behalf of AT&T.

The term "USL" shall mean and include, collectively and/or individually, UNIX System Laboratories, Inc. and all its directors, officers, authorized
11
agents, employees, consultants, attorneys, sales representatives, dirct and indirect contractors, entities that were acquired or merged with USL, subsidiaries of USL, and/or all other persons acting on behalf of USL.

The term "Novell" shall mean and include, collectively and/or individually, Novell Inc. and all its directors, officers, authorized agents, employees, consultants, attorneys, sales representatives, direct and indirect contractors, entities that were acquired by or merged with Novell, subsidiaries of Novell, and/or all other persons acting on behalf of Novell.

The term "Tarantella" shall mean and include, collectively and/or individually, Tarantella, Inc. and all its directors, officers, authorized agents, employees, consultants, attorneys, sales representatives, direct and indirect contractors, entities that were acquired by or merged with Tarantella, subsidiaries of Tarantella and/or all other persons acting on behalf of Tarantella.

B. Instructions

Each paragraph should herein be construed independently and, unless otherwise directed, without reference to any other paragraph for the purpose of limitation.

The use of any definition for the purposes of this request shall not be deemed to constitute an agreement or acknowledgment on the part of the defendant that such definition is accurate, meaningful or appropriate for any other purpose in this action.

Unless otherwise specified, the documents requested are the responsive documents in your possession, control or custody that were prepared, written
12
sent, dated, received, applicable or in effect at any time up to the date of your compliance with this demand.

Each requested document shall be produced in its entirety. If a document responsive to any request cannot be produced in full, it shall be produced to the extent possible with an explanation stating why production of the remainder is not possible.

Each page or sheet produced is to be marked with a consecutive document control number.

All documents produced in response to this subpoena shall be produced in the same order as they are kept or maintained in the ordinary course of business and, where attached, shall not be separated or disassembled.

With respect to any document responsive to this request that is withheld from production based upon a claim of privilege, please provide the information required pursuant to Rules 26(b)(5) and 45(d)(2) of the Federal Rules of Civil Procedure.

If, for reasons other than a claim of privilege, you refuse to produce any document requested herein, state the grounds upon which the refusal is based with sufficient specificity to permit a detrmination of the propriety of such a refusal.

If there are no documents responsive to any paragraph or subparagraph set forth in the requests, please provide a written response so stating.