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SCO Group seeks to amend IBM suit a 3rd time
This is an archived article that was published on sltrib.com in 2005, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Utah's SCO Group, claiming it can show IBM copied 200,000 lines of its Unix code into the freely distributed Linux operating system, wants a federal judge to amend its lawsuit a third time.

The Lindon software company, which is suing the world's largest computer company for $5 billion, also asked U.S. District Judge Dale Kimball on Thursday to order IBM Chief Executive Samuel Palmisano to submit to deposition questioning about the alleged code theft.

SCO attorney Sean Eskovitz argued that Palmisano, then a vice president, has "personal knowledge of IBM's intent and motives" regarding its transition from Unix to Linux. "Mr. Palmisano is the person who spearheaded and executed this strategy," the lawyer charged.

Eskovitz noted that IBM had asked to depose SCO's CEO, Darl McBride, "and we intend to produce him. . . . I see no reason why IBM's CEO should be treated differently."

Big Blue's attorneys fired back, citing numerous internal SCO communications they said proved the company - or at least its corporate predecessor, Caldera - was fully aware and supportive of the code usage as far back as 2001.

As for forcing Palmisano's deposition, IBM attorney David Marriott said there were other top-level IBM executives that SCO could and should depose first.

"The SCO view of the world is that any CEO has complete knowledge of everything that goes on under him," Marriott said. "Mr. McBride is CEO of a company with a little over 100 employees. Mr. Palmisano is CEO of a company with over 300,000 employees."

At issue is the long-defunct Project Monterey, an effort initially drawing IBM, SCO and others into a common effort to create a single, Unix-like operating system. While the effort failed, IBM claims it incorporated SCO's SVR4 Unix code into its AIX on Power operating system under the project's umbrella.

Marriott said SCO officials knew that was the case since 2001. At one point, SCO and IBM jointly marketed AIX on Power as "AIX with Unixware."

SCO claimed its code-transfer evidence was discovered in documents obtained from IBM in the past half year. Eskovitz also argued the code usage was outside agreed boundaries, and that IBM knew this "but proceeded anyway."

Kimball did not say when he will rule on the motions. A trial is expected late this year or early next year.

bmims@sltrib.com

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