UPDATED: IBM corners SCO in court

Posted on 8 Dec 2003 at 13:04

The judge presiding over SCO's $3bn suit against IBM has told the former that it must reveal the substance of the code that it says IBM misappropriated in the alleged breach of contract dispute.

In a Utah courtroom on Friday, both of IBM's discovery motions were granted and SCO will have 30 days from 10 December to comply, before any further discovery motions will be considered, including SCO's own.

Jason Schultz, staff attorney at the Electronic Frontier Foundation, told us: 'If SCO doesn't start turning over some real information to IBM soon, I could see the judge sanctioning SCO for money as a punishment for non-compliance. Such sanctions can be pretty steep.'

Both SCO and IBM had filed motions to compel discovery, so that they could acquire the documents and evidence they need to compile their respective cases. IBM argued that SCO should reveal the specific code it was questioning, while SCO wanted IBM to produce any code in the Linux kernel with IBM provenance and identify any developers that had worked on any code that may have gone into the Linux kernel.

At the heart of IBM's motions are two 'interrogatories' asking SCO to 'identify, with specificity (by file and line of code), (a) all source code and other material in Linux... to which the plaintiff has rights and (b) the nature of plaintiff's rights'. The second asks that for any code SCO highlights in response to the former request, SCO should in each instance say whether IBM has infringed SCO's rights, how it has done so, and detail whether the code at issue was ever distributed publicly and under which restrictions, including whether it was distributed under the GNU GPL.

It appears that David Boies, the high profile attorney hired by SCO to represent the company was not present at this key hearing. SCO CEO Darl McBride was present, although only as a spectator, and SCO's case was argued by his brother. McBride said that he had expected the outcome of the hearing.

Schultz said: 'I wouldn't read anything into it. This was a pretty low-level issue in the case compared to the bigger picture events like motions for judgment or trial. I expect that we'll see Boies show up when more is at stake.'

If SCO is unable to satisfy the terms of the motions, IBM may well ask for the case to be thrown out. In a memorandum filed 3 November in support of its discovery motions, IBM argued: 'Either SCO has evidence to support its accusations or it does not. If it does, IBM is entitled to see it now; if it does not, IBM will be entitled to dismissal of this case.'

However, Schultz said: 'I'm sure the judge will give SCO many, many chances to satisfy IBM's requests before considering dismissal of the case. Dismissal is a very drastic action at this stage.'

There is more information at Groklaw.

Author: Matt Whipp