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.
