| SCO's discovery-go-round keeps spinning |
Feb. 09, 2006
Well, you have to give The SCO Group Inc. credit for persistence, if nothing else. In recent weeks, SCO has expanded its search to find evidence that it might be able to use in its case against IBM.
After what has seemed like an endless series of discovery motions, SCO's latest demand, dated February 1st, is that IBM once more be required to deliver information to SCO that will allow the Unix company to "assess the issues and damages at the heart of this case."
Specifically, SCO wants documents showing IBM's AIX, Dynix, and Linux revenues and profits; IBM's internal numbers on its market share for each of these operating systems; and how many IBM customers have migrated from Unix to Linux.
If you seem to recall that SCO already has faced a final deadline for discovery, you're correct. But while SCO had to identify by December 22, 2005 any Unix materials that it believed IBM had misused in Linux, SCO was free to continue other discovery motions until January 27th, 2006.
In the IBM discovery motion, SCO is claiming that it's simply asking that the US District Court of Utah to force IBM to produce documents that it had already asked for.
SCO also expanded its net of discovery to other companies at the 11th hour. On January 10th, SCO demanded that Oracle Corp., Intel Corp., and The Open Group Inc., an open-standards group that holds the Unix trademark, turn over a wide variety of information dealing with Unix, IBM, and SCO.
For example, in the Oracle subpoena, SCO wants, among other things, all "Documents concerning the identification of all versions of all Oracle software products that Oracle certified for operation on any version of any UNIX-based operating system, including but not limited to UnixWare, OpenServer, AIX, HPUX, Irix, Dynix, and Linux, since January 1, 1995."
When the companies did not respond by January 27th, SCO subsequently demanded that the court compel them to respond and that the court would allow any relevant discoveries to be entered taken into account even though it would be after the 27th.
The subpoenaed companies were not amused.
Oracle has asked for the court to quash SCO's subpoena. Oracle, according to its statements to the court, was willing to answer some, but not all, of SCO's questions. However, Oracle wanted SCO to narrow its questions down and to redo the subpoena since it was legally defective as written for numerous reasons.
Intel, in its response, was less polite.
"SCO represents that Intel 'was given adequate notice' of the depositions SCO seeks but 'did not appear.'... That statement is at best a half-truth. It is true that Intel didn't appear, but it is false that Intel's absence came despite "adequate notice." In fact, SCO first properly served Intel with its subpoena at 3:26 p.m. on the day before the discovery cut-off, in which it demanded that Intel produce witnesses to testify on a host of discrete topics and produce documents the very next day. That same day, Intel responded in writing, objecting that it was unreasonable to expect Intel to comply with SCO's requests on a few hours notice, and notifying SCO that Intel would not do so."
Intel's attorneys weren't done with SCO yet, though.
"Why SCO waited until the eleventh hour to seek this discovery when discovery has been ongoing in the case for the past two years is unclear. More importantly, had SCO planned adequately, the discovery could have been obtained from the parties to the litigation -- including SCO itself, given that SCO seeks evidence 'concerning Intel's business relationship with SCO.'"
Finally, "SCO's attempt to blame Intel for creating SCO's need for more time simply ignores the facts."
So, while the discovery period in the epic battle between SCO and IBM over Linux has, in theory, ended, SCO's discovery battles are far, far from over.
SCO vs. IBM is currently set to go to court on February 26, 2007.
--Steven J. Vaughan-Nichols
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