Hey, remember SCO?
I almost forgot myself. It's hard to focus on SCO when we're now into Son of SCO. Or is it Father? Anyway, there was a filing today, and it's important. SCO, as you'll recall, did some FUDding in the media about alleged spoliation, which some SCO-supporting media types lapped up to the very last drop and made sound like a big deal. Well, here's IBM's side. You'll laugh, snort, and then perhaps get mad at SCO, if you're like me and have a sense of justice. SCO has to know that they are raising a bogus issue, I think, but they did it anyway. What do you call that? I call it a frivolous motion, personally, and I more and more suspect we may well see the court sanction both SCO and Boies Schiller before this is over.
Here's IBM's Redacted Opposition to SCO's Motion Regarding Spoliation [PDF] and Exhibit L [PDF], Todd Shaughnessy's Declaration in support. There are more exhibits, but they are sealed.
What's the bottom line? No evidence was destroyed. No IBM executives sent any directives telling folks to destroy evidence. The most that happened, as far as I can see, was SCO's attorneys asked some trick questions and got a couple of confused answers at deposition, later corrected, and the rest is the bogo part. Just one more manufactured smear against IBM that doesn't bear close examination.
What is spoliation? IBM defines it, quoting from a court ruling in Rowe v. Albertson's, Inc.: the "doctrine of spoliation refers to improper intentional destruction of evidence relevant to a case." To prevail, SCO has to show, among other things, "that his adversary destroyed or misplaced the evidence in bad faith." After it proves that, then the Court considers two factors in deciding whether there should be sanctions: 1) the degree of culpability and 2) the degree of actual prejudice to the other party. (Jordan F. Miller Corp. v. Mid-Continent Aircraft Serv., Inc.) Making a mistake or even negligence isn't enough. You have to have bad faith in the picture. IBM points out what SCO here lacks:
Here, SCO's motion should be denied because it cannot show that any evidence (let alone relevant evidence) was lost or destroyed, it cannot show that IBM acted in bad faith, and it cannot show that it has been prejudiced. In addition, SCO's motion also should be denied because it has expressly waived by stipulation any concerns with IBM's document production, including any concerns about IBM's alleged destruction of source code.
That last is referring to the stipulation where SCO stipulated on March 17, 2006, the last day of discovery, that the parties had met and reviewed each others' document productions and agreed "that ... there are no discovery disputes between them." SCO and IBM attrorneys met repeatedly before drawing up the stipulation, and SCO never said one word about any missing evidence from sandboxes, Shaughnessy relates. That stipulation is docket number 651, which you can always find on our IBM Timeline page. They said this months, in one case more than a year, after they got the testimony they used for this last minute motion. In the case of the email SCO made headlines about, they had it for 2 1/2 years before filing this motion. If SCO's concerns expressed in its motion were genuine, it should have raised them earlier, IBM says:
SCO instead chose to wait to file this motion until after both fact and expert discovery concluded, thereby limiting the options available both to the Court and IBM to address it. By failing to raise this issue at the time of the March 17, 2006, stipulation, SCO waived any and all of its current arguments, and SCO's motion should be denied for this additional reason.
SCO can't prove what it needs to, IBM says, because it didn't happen:
SCO has not, and cannot, identify a single piece of evidence that was lost or destroyed by IBM.
Well, at least SCO is consistent. No evidence is the hallmark of this peculiar litigation. IBM never told its Linux guys or anyone else to destroy evidence or source code relevant to this litigation. The email SCO relies on was sent to 8 AIX programmers who were starting a new project, involving Linux on PowerPC, not LTC guys, and the sender of the email, not an executive, sent it to folks who also are not executives, saying that the project programmers should clean their sandboxes prior to beginning the project because he wanted "to avoid any misperceptions, however ill-founded, that might be created if developers continued to have some ability to access AIX or Dynix while writing code for Linux."
It was an effort to be squeaky clean.
No AIX or Dynix code was "lost", because it is all in the IBM databases anyway and that was all turned over to SCO in discovery. And of the 8 programmers, 4 testified they didn't erase anything, and the other 4 don't remember, but they know that whatever was on there, it would only have been copies of pieces of code from the databases or at most this:
(a) an exact copy of source code that the developer created that subsequently had been incorporated into CMVC; (b) a copy of AIX source code to which the developer had not made any changes, and which would therefore be identical to the AIX source code in CMVC; or (c) a copy of AIX source code to which the developer had made or had attempted to make certain changes, but which changes did not work, or the need for which no longer existed, and whic, as a result, never became a part of AIX at all.
Here's the kicker. In Exhibit L, IBM attorney Todd Shaughnessy points out that none of the 8 developers were listed by SCO as having made improper contributions to Linux. AIX development is done on sandboxes. Sandboxes aren't used for Linux development. That's it. That's the "spoliation". As for SCO's claim that a developer admitted in a deposition that he destroyed code he'd written for Linux while referring to Dynix, that turns out to be inaccurate. SCO is referring to Paul McKenney, who didn't do that at all. Here is what happened, as IBM tells the story:
In fact, while Dr. McKenney did testify to deleting certain Dynix source code trees from his prior work in Dynix, as well as certain tests that were used strictly to validate Dynix kernel functionality (and that are not themselves Dynix source code) from his laptop, these source trees were verbatim copies of Dynix source code modules that are available in IBM's RCS database. IBM has produced the RCS database to SCO and it therefore has in its possession source code that may have been on Dr. McKenney's computer.
The tests removed weren't even Dynix source code, so they have no relevance. And in footnote 16, we find out that whatever McKenney removed from a laptop, it wasn't related in any way to any of this work in Linux. At deposition, McKenney repeatedly, IBM relates, testified that he never referred to Dynix when writing code for Linux and that he never destroyed any drafts of source code written for Linux while looking at or referring to Dynix source code.
So, is SCO just tech stupid? Desperate and so grasping at straws? Or are we watching the meanest law firm in the world? You decide. Here's what I think is the clue as to why this motion is filed at all, this section:
SCO's inability to support its spoliation claim has not been for lack of effort -- much of SCO's discovery in this case has centered around trying to show that IBM deleted or destroyed evidence. But as the foregoing demonstrates, and despite SCO's dogged efforts, it can identify nothing that has been destroyed.
My best guess is that SCO has doggedly pursued this because they already know that their case is hopeless and they wish to provide the court with a reason why they have no evidence after three and a half years of looking. I guess they figure that the only chance they have is to try to win on sanctions, so they manufacture whatever they can cobble together. Or maybe they wish to preserve some FUD for the media. And if some decent folks' reputations have to be trashed, what does SCO care? That's the part I hope the court will notice and decide to do something about at the very end of this horror show.