[SLUG] Latest salvo against SCO

From: Steven Buehler (swbuehler@gmail.com)
Date: Thu Apr 06 2006 - 10:57:32 EDT


IBM says SCO willfully failed to detail evidence

6th April 2006
By Matthew Aslett
Computer Business Review

IBM Corp has once again come out on the attack against its legal foe
SCO Group Inc, accusing the Unix vendor of acting in bad faith and
willfully failing to comply with court orders for it to detail its
evidence against the systems giant.

IBM made the claims in a reply memorandum backing up its request for
the court hearing its breach of contract defense against SCO to throw
out the majority of the Lindon, Utah-based company's claimed evidence.

In filing its evidence under court seal in December 2005, SCO claimed
the filing "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."

IBM has asked the court to throw out the majority of SCO's claimed
items of evidence, however, maintaining that SCO has failed to comply
with the court order, which obligated it to "disclose with specificity
all allegedly misused material identified to date."

"SCO fails to provide the requisite specificity regarding the 198
items," wrote IBM in its filing, noting that only 198 of the 201 items
it initially objected to remain in dispute. "SCO does not provide a
complete set of reference points (version, file and line) for any of
the 198 items. Astonishingly, SCO fails specifically to identify a
single line of System V, AIX or Dynix, and Linux code for any of the
198 items."

IBM further noted that while it is only objecting to 198 items does
not mean that the remaining items have been properly disclosed. "This
motion is directed only to 198 of the items because SCO's disclosures
as to those items are utterly lacking in the required detail," it
stated. "IBM proposes to deal with the items not dealt with here on
summary judgment."

While IBM's filing is not materially different from its initial motion
to limit SCO's claims, filed in February, the nature of its language
indicates that it is determined to get the claimed evidence thrown
out.

"We believe, respectfully, that SCO's failure to specify the 198 items
amounts to bad faith," it stated. "It is beyond reasonable debate that
SCO acted willfully in not specifying its claims. The court made it
perfectly clear what SCO was required to do."

IBM also accused the Unix vendor of misleading the court in its
opposition brief, which was filed under court seal. "To create the
false impression that it has provided information that it has not
provided, SCO tells the court that it has provided 'color-coded
illustrations', 'line-by-line source code comparisons' and 'over
45,000 pages of supporting materials'," IBM noted.

"What SCO fails to mention is that 33,000 of those pages concern item
294, which SCO abandons in its opposition brief," it added. "Moreover,
while the Final Disclosures include color-coded illustrations and
line-by-line source comparisons, they do not do so with regard to any
of the 198 items at issue."

All in all, according to IBM, SCO's evidence filing makes it
impossible for the company to defend itself. "By failing to provide
adequate reference points, SCO has left IBM no way to evaluate its
claims without surveying the entire universe of potentially relevant
code and guessing," it wrote. "Since only SCO knows what its claims
are, requiring such an exercise of IBM would be as senseless and
unfair as it would be Herculean."

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