IBM Subpoenas HP, Baystar, Sun & Microsoft

nicolaiplum writes "CNet is reporting that IBM is sending subpoenas to HP, Baystar, Sun and Microsoft requiring them to disclose most of their dealings with SCO over UNIX licensing and litigation." From the article: "The subpoenas demand that Microsoft, HP, Sun and BayStar hand over a range of information, including details of their dealings with SCO, by March 7. They will also have to appear in court later in March to give depositions." Groklaw also has links to each of the subpoenas.

Don't have to appear in court

[whoever57]

The reporter got that aspect wrong. Read the original documents and it becomes clear that the recipients are "commanded" to appear in various lawyers' offices.

Depositions

[overshoot]

They will also have to appear in court later in March to give depositions.

Actually, the depositions will occur at law offices near the headquarters of the companies in question. Microsoft's, for instance, will occur in Seattle.

Good comments at Yahoo Finance board too

[sphealey]

The SCOX Yahoo Finance Board [yahoo.com] is actually a good source of information and comments as well. Contrary to the usual stock board the regulars there are quite knowledgable and try to keep the spam cleaned up. Which is not to say there are no trolls, but any rating above a 4 is usually good.

sPh

Re:I forgot about this!

[yo_tuco]

Still, I have to wonder why IBM is willing to spend the money for the additional activity?

Because the drama, oops I mean SCO vs IBM case, is not over. It is still in the descovery process.

From http://www.groklaw.net/article.php?story=200602212 20214214 [groklaw.net]

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 [bold], 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

The reason

[jgoemat]

Microsoft and Sun paid tens of millions of dollars to SCO in early 2003. Caldera (who is now SCO) had run their Linux business into the ground and after purchasing the UnixWARE from Santa Cruz in 2001 (to purportedly make Linux and Unix play better together), they ran it into the ground as well. Without that influx of cash, SCO would not have had the money to pursue the lawsuit against IBM. It just happens that SUN (IBM's largest Unix competitor) and Microsoft (who has a lot to gain from the discrediting of Linux) paid tens of millions of dollars to SCO and the only substantial thing they got in return was the lawsuit against IBM. IBM is also seeking information from SUN and HP because SCO gave them a clean bill of health, and they have distributed and made public much of the information that forms the basis of the lawsuit against IBM.

Subpoenas

[AviLazar]

We should all remember, Subpoenas are a commonly utilized legal term which is needed to get another party to comply. Most large companies are not even allowed to give any of their documents (which have other legal bindings on them, probably for non-disclosure) without a subpoena. People just tend to think "subpoena omg"

mirror

[mtenhagen]

I created a mirror [klaproos.net] for the subpoenas, including easy to read html versions.

Re:a well-known fact.

[Anonym0us Cow Herd]

It is illegal to use anti-competitive acts to maintain or extend a monopoly. Microsoft has been found to have a monopoly.

Re:a well-known fact.

[sepluv]

Yes, but if TSG didn't provide them with anything in return (especially if TSG's only business at the time was lawsuits) then Microsoft (like anyone who donates towards a lawsuit) has to pay the costs and damages awarded to IBM, Redhat et al if^Wwhen TSG loses if^Wwhen TSG goes bankrupt.

Also, depending on the local laws, MS and TSG may be prosecuted for maintenance (the supporting of a litigant by a third party that enables the litigant to carry on a claim when they otherwise would be unable to and/or where the third party does not have a bona fide interest in the suit), barratry (inciting a third party to take out groundless or repeated claims against other third parties), or champerty (maintenance with the hope of profit for yourself). Even in states where these are not unlawful, doing them clandestinely may be.

Oh...and don't forget that MS is probably in contempt of the court's anti-trust ruling in DOJ v. MS...oh...and that the SEC were investigating possible offences of money laundering between MS, the Royal Bank of Canada and TSG.

Re:The reason

[ratsg]

Sun has stated many times that the money headed to SCO was to open source Solaris. Unfortunately, there timing was off from a PR perspective.

I didn't realize that

[jgoemat]

But I found it [newsforge.com]:

"There were hundreds of encumbrances to open sourcing Solaris. Some of them we had to buy out, others we had to eliminate. We had to pay SCO more money so we could open the code -- I couldn't say anything about that at the time, but now I can tell you that we paid them that license fee to expand our rights to the code,"

That really puts a hurting on SCO, IBM is probably after the evidence of this as well. SCO has pretty much given up on proving copyright violations, if you look at their oppositions to IBM's 10th counterclaim and more recent filings, they actually had the audacity to say that it was never about copyright. Anyway, their current theory is that IBM violated their contract with AT&T because they gave Linux inside information about how UNIX works, enabling it to grow much faster than it should have. Of course they have admitted themselves that there were no trade secrets left in Unix (Kevin McBride to Judge Wells in open court) when they dropped their trade secret claims back in early '04. So they are claiming that some intangible and indefinable quality of UNIX was given to Linux by IBM in violation of their contract. If SUN is open-sourcing Solaris with SCO's blessing, they really can't claim that IBM did anything wrong.

Re:a well-known fact.

[sepluv]

Looks like not only is the PIPE fairy connection unravelling, but MS is in it deep elsewhere as fresh anti-trust complaints are filed in the EU & US.

According to Yahoo! News [yahoo.com] and BBC News [bbc.co.uk], a fresh anti-trust complaint has been filed with the EC against Microsoft by the European Committee for Interoperable Systems (composed of IBM, Oracle, RealNetworks, Sun & Nokia). Although the complaint was filed privately, ECIS hinted that it related to MS Office.

Also, computer manufacturer, Tangent, filed a federal suit against MS in a Northern Californian court on Valentine's Day. According to Gameshout [gameshout.com] and ZDNet [zdnet.com], complaints relate to MS's promotion of its DRM software, lack of documentation for the MS Office document formats, pricing of software artifically high, pressurising content owners to use proprietary MS media formats and server interoperability.

Re:IBM doesn't play

[16K Ram Pack]

I can't think of a time that they didn't act as a market player.

I worked on ICL kit, and even though we thought they were superior to IBM, IBM never shut anyone out. They didn't try and extend COBOL, mag tape formats were open.