IBM Subpoenas Microsoft! Sun! Baystar and HP!

Groklaw ^ | 02/22/06 | Pamela Jones, et al.

[Salo]

Hold on to your hats! IBM has subpoenaed Microsoft! And Sun! At last, we're getting to the core of the matter. We're going to get to find out the whole story. I'd pay for this. No kidding. Feast your eyes on these and don't skip the topics for deposition:

* Plaintiff IBM's Notice of Service of Subpoenas Duces Tecum - yes, plaintiff for the countercharge...oops, I meant counterclaims * Exhibit A - HP's (deposition set for March 15, 9 AM) * Exhibit B - Baystar's (deposition set for March 16, 9 AM) * Exhibit C - Microsoft's (deposition set for March 14, 9 AM) * Exhibit D - Sun's (deposition set for March 7, 9 AM)

If anyone has time to do a plain text of the topics, I'd appreciate the help. What a day.

I love Sun's. Among other things, IBM would like to have them testify about such matters as "restrictions or prohibitions on Sun employees having access to any UNIX product, including, but not limited to, its source code." And they'd like to hear all about all communications between Sun and SCO since June 28, 2002 (isn't that the date Darl joined SCO as CEO?), including any chats about any software licensing agreements and what Darl said to Scott McNealy in May of 2003 regarding SCO's rights to the UNIX operating system and "discussions of business opportunities between SCO and Sun." Oh, and involvement by Sun in the development of Linux.

IBM would like Baystar to hand over documents about any communication between Baystar and Microsoft regarding SCO, IBM or the SCO v IBM litigation and all documents regarding agreements between Baystar and SCO and all documents regarding Baystar's investment in SCO, and all documents concerning Baystar's knowledge of SCO's business". Say, that should be easy for a "pure financial animal".

Microsoft, Microsoft, Microsoft. Do tell IBM all about any agreements between Microsoft and SCO, and all communications or agreements relating to SCO or this litigation, including all communications between Microsoft and SCO since June 28, 2002, including Darl's communication in May of 2003 "with Steven Ballmer regarding SCO's rights to the UNIX operating system". Oh, and IBM would like to hear about "Microsoft's business strategy regarding Linux", and they'd like to chat about the Caldera antitrust litigation against Microsoft too. Me, too. Me, too. Now about those shredded documents... And finally, they'd like "all communications or agreements relating to SCO or this litigation, including all communications with Baystar, Royal Bank of Canada, and Everyone's Internet, Ltd."

Yoo hoo. PIPE Fairy. Hope you like sunshine.

As for HP, IBM would like to see their contract licensing them to use UNIX. They'd like to know about any restrictions on employees having access to UNIX source code and all documents concerning "any agreements relating to any Hewlett-Packard software product involving Hewlett-Packard and AT&T, USL, Novell, Santa Cruz, Tarantella, or SCO." And any documents regarding any open sourcing of any HP UNIX product and all documejnts concerning the origin of any UNIX source code "publicly disclosed or open sourced by Hewlett-Packard." And they would like to see, or hear about, any agreements between SCO and HP. They'd like to know more about the indemnification plan of HP's also. And this is interesting, number 12:

12. All documents concerning any efforts to ensure or maintain the secrecy or confidentiality of any UNIX source code, know-how, concepts, techniques, or methods, including but not limited to: (a) any rule, policy, practice or procedure relating to the confidentiality or secrecy, or lack of confidentiality or secrecy, of any UNIX source code, know-how, concepts, techniques, or methods; any breach of any such rule, policy, practice or procedure; (c) the use by any person of any UNIX source code, know-how, concepts, techniques,, or methods; and (d) the disclosure or availability of any UNIX source code, know-how, concepts, techniques, or methods to any person.

I begin to think that every question we've had, we will finally get to know the answer.

I see comments indicating that some of you thought discovery was over. Here, from Groklaw's IBM Timeline page, is the schedule:

22-Dec-05 - Final Deadline for Parties to Identify with Specificity All Allegedly Misused Material

27-Jan-06 - Close of All Fact Discovery Except As to Defenses to Claims Relating to Allegedly Misused Material

17-Mar-06 - Close of All Remaining Discovery (i.e., Fact Discovery As to Defenses to Any Claim Relating to Allegedly Misused Material)

As you can see, we're in the part that I've highlighted in red, which is over on March 17. It's all about defenses now. In other words, SCO filed it's list of ha ha allegedly misused material, and now IBM gets to do discovery to establish its defenses. Don't forget the expert witnesses also:

14-Apr-06 - Initial Expert Reports

19-May-06 - Opposing Expert Reports

16-Jun-06 - Rebuttal Expert Reports

10-July-06 - Final Deadline for Expert Discovery

And then, ta da! Dispositive motions.

[proxy_user]

"If we only had the British system where the plaintiff, if they lose, must pay legal fees and damages to the defendant if they don't prevail.

That would not help in this case. If SCO loses, they will have no assets left to pay for anything.

[N3WBI3]

OSS PING

If you are interested in the OSS ping list please mail me
Looks like the 800lb Gorilla is finally noticing Darl tried to take his banana..

[amigatec]

This is going to get ugly, very ugly!!!

[Richard Kimball]

I always thought it was a heck of a coincidence that MS suddenly decided they needed contracts with SCO right about the time SCO needed a cash infusion to continue their lawsuit.

[Spktyr]

Yup.

Among other metrics:
Microsoft is #41 on the Fortune 500.

IBM is #10.

[Petronski]

Darl is going to take the banana all right. He's going to take it right in the

[Spktyr]

Also:

Microsoft: http://money.cnn.com/magazines/fortune/fortune500/snapshots/879.html

IBM: http://money.cnn.com/magazines/fortune/fortune500/snapshots/676.html

Microsoft's revenue in '05 was ~$37 billion. IBM's was ~$97 billion.
In revenue, profits, and assets, IBM is *still* larger than Microsoft.

Microsoft, through their proxy SCO, decided to take on the only company with the financial and legal resources to crush them.

[RJL]

While I wish them well, hasn't IBM already lost? Their plans for a big Linux push has been stalled in court for 3(?) years with no real end in sight.

I believe that Microsoft engineered and financed the whole stall and that IBM stands little chance of recovering anything from those responsible.

[ko_kyi]

Now it appears that IBM wants to play the same game.

I'm pretty sure that IBM is the defendant, not the plaintiff. I can't fault them for defending themselves and their business strategy from someone who files a lawsuit. Especially if Microsoft is so willing to dump money into a dying company to see the lawsuit continue.

[ShadowAce]

[river rat]

Hmmmmm...

If IBM can prove that Sun/Microsoft/???? colluded in some illegal activity to suppress or hinder IBM's legitimate conduct of business ---- Does that open up Microsoft's "deep pockets" to a ravaging raid by IBM?

Semper Fi

[MikefromOhio]

Bush2000 won't be joining us today :)

[ShadowAce]

I do believe that he was one who thought SCO had a legitimate shot at winning this.

< Yoda whisper > There is another...... < /Yoda whisper >

[MikefromOhio]

LOL

I'm not worried about him either :)

[markman46]

your not the only one that is pissed aboyt what MicroS*** did to IBM over OS2,and despit it all OS2 still lives

[Spktyr]

Yes!

[untrained skeptic]

I find it really amusing to watch people pick sides and act like there's innocent parties in this whole mess.

These companies have been all been using bogus lawsuits and deceitful spinning about disagreements for decades.

They are all guilty of doing it. There's multiple examples of each of them doing it.

[Salo]

That would be my guess - and I think that may be their strategy, too.

If IBM can prove that Sun/Microsoft/???? colluded in some illegal activity to suppress or hinder IBM's legitimate conduct of business ---- Does that open up Microsoft's "deep pockets" to a ravaging raid by IBM?

[steve-b]

< Yoda whisper > There is another...... < /Yoda whisper >

LOL -- I haven't seen Tweety Bird chime in lately, either....