In-Depth

Courtroom Showdown: SCO Denied

Tardy SCO denied in bid to depose industry heavyweights Intel and Oracle

• By Stephen Swoyer
• 03/07/2006

The SCO Group Inc—the patent clearing house and surprising nemesis of IBM Corp.? Last month, the company was back in the news, attempting (yet again) to get information from Big Blue, and getting shot down in its bold attempt to depose industry heavyweights Intel Corp. and Oracle Corp.

In fact, it was exactly three years ago this month when SCO filed its landmark $1 billion (since expanded to $3 billion) lawsuit against Big Blue.

Since then, SCO has pursued a legal strategy that critics allege amounts to little more than a fishing expedition. In fierce legal back-and-forth, the company has repeatedly attempted to force IBM to turn over volumes of data that may or may not be material to its case—in the hope, experts say, that it can discover evidence of malfeasance—or any other kind of questionable activity, for that matter. SCO’s motions have been almost invariably been denied. That hasn’t stopped SCO from generating more discovery requests.

Last week, for example, SCO filed another motion to compel Big Blue to turn over additional information. According to long-time SCO-watcher (and persistent nemesis) Groklaw.net, SCO is asking for a proverbial “mountain of documents” from IBM. There’s a method to SCO’s madness, however. “SCO asks for things like ‘all transaction-level data for all sales of hardware usable with Linux-based operating systems, AIX operating systems, or Dynix operating systems,’” writes putative Groklaw editor Pamela Jones, who notes that SCO’s request is nothing less than all-encompassing.

“Hardware. All data for sales of all hardware. Linux runs on everything, dudes, from watches to supercomputers, which is just one reason why SCO made a life-altering mistake when it dropped Linux and chose to ride off into the sunset on its crippled Unix donkey.”

That’s not all, of course. Parsing a veritable document dump on SCO’s part—SCO’s motion to compel clocked in at 34 exhibits in all—Jones discover’s that SCO is still after Linux customers, too. “Believe it or not, SCO wants to know all the IBM customers who switched to Linux,” she points out. Accordingly, SCO’s latest filing requests “all documents concerning IBM's plans, efforts or attempts to market, promote, or advertise (a) hardware products or software products usable with Linux-based operating systems, AIX operating systems or Dynix operating systemss; (b) middleware software usable in a Linux environment; or (c) services (including installation, development, maintenance, consulting, or migration services) associated with Linux-based systems or software products, AIX systems or software products, or Dynix systems or software products.”

SCO filed suit nearly two years ago against two prominent users of Linux, DaimlerChrysler AG and AutoZone Inc.

Casting an Ever-Larger Dragnet

More recently, SCO expanded its discovery strategy, subpoenaing a pair of industry heavyweights—viz., Intel Corp. and Oracle Corp.—along with Unix trademark holder The Open Group Inc. as part of its ongoing effort to unearth any information that might pertain to Unix or IBM.

Unfortunately for SCO, however, it apparently didn’t take seriously enough presiding judge Brooke C. Wells’ order of October 12, 2005 which said that depositions must be completed by January 27, 2006..

According to Groklaw contributor Chris Brown, who attended the February 24 proceedings, SCO counsel Brent Hatch claimed that notice of the depositions was served before the cut-off date, but the depositions themselves were not completed before the mandated cut-off date. The reason, Hatch conceded (upon further questioning from Judge Wells) was that there were technical issues (i.e., defects) with the subpoenas, which—he argued—some of the respondents used as excuses not to comply before the cut-off date.

SCO’s targets told a different story. According to another Groklaw contributor—Justin Findlay, who also attended the hearing—IBM attorney Todd Shaughnessy claimed the defects in SCO’s subpoenas were far from insignificant, e.g., requesting non-specific documents, failing to include specific witnesses to be deposed, and requiring witnesses to travel to New York. Elsewhere, Intel attorney Anthony Marks claimed that Intel wasn’t given notice of the depositions—for which it would be required to produce one or more witness, along with any relevant documents—until January 26, the day before they were to be taken, Groklaw’s Brown reports.

The upshot, for SCO, was denial: Judge Wells ruled on SCO’s motion to compel testimony from Intel, Oracle, and the Open Group—denying SCO’s claim on the grounds that it gave inadequate notice and time.

We asked SCO for their perspective on the decision. A spokesman told us that the company's legal counsel prohibits them from commenting specifically on rulings from the judges in the case.