Now, 19 months after filing its multibillion-dollar lawsuit against IBM for alleged contract and copyright violations, the Lindon software company wants more; much too much more, IBM attorney David Marriott says.
In federal court Tuesday, he argued SCO's renewed discovery motion expands demands for records, files and documents related to IBM work on Unix- and Linux-related projects to include an additional 2 billion-plus lines of programming.
Complying with past discovery requests in the case, "900 million lines [equivalent to] 15 million [printed] pages of source code has been produced so far," Marriott said. SCO "still has not produced any evidence IBM has infringed on its code."
Marriott said SCO's new requests not only seek material burdensome for IBM to produce, but information that is irrelevant to the Utah company's claims.
Not so, countered SCO attorney Sean Eskovitz, insisting that six months after the court's last order to IBM to produce information, Big Blue has, at best, complied only in part.
What IBM has not produced is the Unix-Linux-related program histories SCO sought to mine for evidence. Instead, Eskovitz contends, IBM has provided only "limited snapshots, frozen in time that tell us nothing about the development" of suspect programs.
SCO needs "additional source code to fill in the gaps," he said. "This evidence is critically important to our claims."
Such evidence may include alleged corporate e-mails SCO believes show "intentional copyright infringement" related to development of IBM's AIX and Dynix product lines.
IBM contends the real reason behind SCO's newly expanded discovery request is to avoid dealing with Big Blue's motion for partial summary judgment. IBM also seeks a declaration that its current products do not violate any SCO rights. Case observers believe if that motion succeeds, SCO's case may be mortally wounded.
Marriott told U.S. Magistrate Judge Brooke Wells that "SCO already has the elements needed" to prove or disprove its claims; the Utah company owns Unix, and Linux is available to anyone on the Internet for comparison purposes, he said.
"If at the end of the day Linux is not substantially the same as Unix, it matters not how it got there," Marriott said.
SCO, which also is in Unix-Linux-related lawsuits involving Novell, RedHat and others, counters that such a side-by-side comparison would not provide evidence of "indirect copying" - an offense more in the realm of stolen concepts, techniques, etc., than direct, line-for-line duplication.
Wells ordered both sides to provide each other logs of "privileged" information thus far excluded from discovery, and required IBM to provide affidavits from executives regarding what may exist in their personal files regarding Unix-Linux issues.
However, she took under advisement SCO's renewed motion to compel IBM to provide additional information.