Judge Rules That IBM Did Not Destroy Evidence

UnknowingFool writes "From the latest in the SCO saga, Judge Wells ruled today that IBM did not destroy evidence as SCO claims. During discovery, SCO claims it found an IBM executive memo that ordered its programmers to delete source code, and so it filed a motion to prevent IBM from destroying more evidence. The actuality of the memo was less nefarious. An IBM executive wanted to ensure that the Linux developers were sandboxed from AIX/Dynix. So he ordered them to remove local copies of any AIX code from their workstations so that there would not be a hint of taint. The source code still existed in CVMC and was not touched. Since the source code was still in CMVC, Judge Wells ruled IBM did not destroy it. Incredulously, SCO's Mark James requested that IBM tell SCO how to obtain the information. IBM's Todd Shaughnessy responded that all during discovery (when IBM gave SCO a server with their CMVC database) SCO never once said that they were unable to find that information from CMVC. Judge Wells asked IBM to help SCO out in any way he could."

D'Oh!

[Scott Lockwood (218839)]

Pwned!

Could anything happen at this point that even might help SCO? I really hope we get to move to the summary executions^Hjudgment phase here pretty soon...

Re:D'Oh!

[Baricom (763970)]

Perhaps the judiciary needs to learn what most Slashdotters already know: feeding the troll solves nothing.

Re:D'Oh!

[nmb3000 (741169)]

Could anything happen at this point that even might help SCO?

Of course! Just as soon as they figure out the second step they'll be set.

When will it End?!?

[nonsequitor (893813)]

This is great news for Linux, but is there even an end in sight for this case? I know if its not done right it could unleash years of appeals as well. Any Lawyers in the house have any idea when this case will wrap up?

Re:When will it End?!?

[rewt66 (738525)]

Define "wrap up".

It will begin to wrap up in March, with the hearings on the partial summary judgment motions. Those will be ruled on eventually (maybe somewhere between May and August, but I could be optimistic).

Final wrap up is when the Supreme Court has declined to hear the appeal. Realistically (if SCO appeals it that far, which, according to current pattern they will), that will be in three to five years. It may not go that far, because of the near certainty that SCO goes bankrupt before then, and the probability that the trustee decides to stop throwing money down the legal rathole.

Disclaimer: IANAL.

Re:When will it End?!?

[viking80 (697716)]

..and the probability that the trustee decides to stop throwing money down the legal rathole...

This is not all SCOs money. SCO has an agreement with the attorneys that they not be paid by the hour. They will get a majority of the settlement against IBM instead.

So far they have gotten nothing for years of work. They are probably fairly desperate, and willing to do anything.

Re:When will it End?!?

[inode_buddha (576844)]

Not true. SCO's lawyers have been paid 30 million up front, the fees were capped.

Re:

[adrianmonk (890071)]

SCO has an agreement with the attorneys that they not be paid by the hour. They will get a majority of the settlement against IBM instead. So far they have gotten nothing for years of work. They are probably fairly desperate, and willing to do anything.

Surely even the lawyers representing SCO, despite their apparently exiguous technical knowledge, are at least smart enough to be familiar with the concept of a sunk cost [wikipedia.org].

I suppose you can argue that caring whether it's a sunk cost requires rationality

Re:When will it End?!?

[Alsee (515537)]

representing SCO calls into question whether they are acting rationally

Considering that they have collected a 30 million dollar paycheck for doing it, I would dare say that dancing around naked to the song Don't Worry Be Happy while wearing a jello toupee would qualify as "acting rationally".

I would assume that the contract between SCO and their lawyers pretty much requires them to continue the case at least far enough to get a ruling. A legal obligation to finish it, lest that paycheck be forfit. My guess is that once they get a ruling, they won't fight on with an appeal without pay. Of course it's quite possibile that someone might arranging to fund an appeal just to drag this mess out.

-

Re:When will it End?!?

[rbanffy (584143)]

I will be satisfied when Darl McBride or other SCO senior execs rats his friends at Redmond (who are behind the financing SCO got from the Canopy Group) in exchange for a couple years less worth of jail time and they get indicted for whatever conspiracy they took part in.

Of course, the MS Astroturf Unit will mod down this into oblivion.

Re:When will it End?!?

[fuzzix (700457)]

Of course, the MS Astroturf Unit will mod down this into oblivion.

Lucky for you I read at oblivion... *prepares modpoints*

Wait... did I just post in this thread? Shit! Sorry, buddy!

Re:

[femtoguy (751223)]

The end actually began significantly before then. It began when SCO's lawyers started to require payment for service in addition to their percentage of the final award from the judgment. When your own lawyers don't believe that you are going to win, its over.

Re:When will it End?!?

[cyphercell (843398)]

This will end when SCO freezes over.

Re:When will it End?!?

[Chris Burke (6130)]

Well, if the most dire estimates of global warming are cozy understatments, and we seriously ramp up industrial production, then earth may become uninhabital for humans in a hundred years. Which wouldn't get rid of the lawyers, of course, and maybe not even the people paying them. We won't be around to see it though, which is close enough. I leave my car running in the parking lot, just to do my part.

Nuclear war is also promising. I think Iran and North Korea are as desperate to seeing this case end as we are.

Barring that, the Sun will turn into a red giant in about 5 billion years, and that will certainly end things.

Or SCO could run out of stalling tactics, but seriously, that seems far-fetched.

Don't worry about an appeal

[by Anonymous Coward]

SCO will soon be bankrupt. That moves out Darl and co. and moves in the bankruptcy trustee. The trustee will not spend a penny more on litigation. The trustee and the creditors (Novell and IBM) will agree on terms and all the issues will be settled pretty much to IBM/Novell's satisfaction.

The issues probably can't raise their head ever again, no matter who is found to own the Unix copyrights. In particular, Novell is forestalled from raising them because it has argued against them in court and there's a rule about not saying contradictory things in two different courts. So, when it's over, it's over.

Re:

[Alsee (515537)]

IBM won't actually be satisfied until they've won their counterclaims and recovered their legal fees. SCO won't last that long, and they won't have a penny for each dollar IBM's spent fighting these greedy fscks.

Oh, I think IBM will well get their money's worth even if they don't collect a cent from SCO.

You know those annoying Jehova's witnesses and other trolls that go around knocking on your front door? Imagine you pulled out a machete, whacked one's head off, and nailed the skull to your front door. I th

Re:When will it End?!?

[E IS mC(Square) (721736)]

True. Today they asked how to use CMVC. 3 months later, they will say that IBM did not tell them how to open the file, or did not provide a text editor to read the files.

I am sure these @$$holes already have a list of such trivial technical stuff lined up to delay this as far as they can.

Re:When will it End?!?

[stevesliva (648202)]

True. Today they asked how to use CMVC. 3 months later, they will say that IBM did not tell them how to open the file, or did not provide a text editor to read the files.

In disclosure, like 87 years ago, IBM provided them with a physical server with CMVC installed so that they could browse the code in all its versioned glory to their hearts content without even having to install CMVC. And that's good, because installing CMVC is probably as easy as playing wiffleball in a hurricane. But the point is that SCO has had access to this information for years-- they just didn't care to go looking for it.

Re:When will it End?!?

[SpaceLifeForm (228190)]

Not only did they provide a server, they also provided documentation, and even some simple scripts.

Link [groklaw.net]

Re:When will it End?!?

[EvanED (569694)]

The Exxon-Valdez oil spill trial is still ongoing, and that happened in 1989.

Re:

[jalet (36114)]

Your missing the fact that Exxon is not short on money...

years of appeals

[nurb432 (527695)]

Expect that regardless of 'how its done' or the outcome. The attorneys make more money that way.

Re:

[Michael Woodhams (112247)]

IANAL, but I watch them on Groklaw.

I wouldn't call this "great news" - I think the spoilation claim was always a long shot by SCO, and was more a distraction than anything else. It is a victory in a very minor battle. (There was also a defeat in a very very minor battle. I'm not sure why they cared enough to fight it.)

Good news was when 2/3 of SCO's "evidence" was thrown out for being, well, non-evident. Great news is what we're hoping for from the summary judgement motions.
I'm expecting a large portion (80

Re:

[samkass (174571)]

"Any Lawyers in the house have any idea when this case will wrap up?"

I suspect you'll get the obvious answer from the lawyers: when the money runs out.

Of course, we'd love to help SCO out....

[rewt66 (738525)]

... Which way did they come in?

Oh, the lack of observation.

[cyphercell (843398)]

SCO had the memo that said the code was on the CMVC server. They were handed the CMVC server, and apparantly never looked or verified the contents of the memo before claiming it as evidence of deleted code. SCO was trying to pass yet another one over on the Judge, this is painfully idiotic.

Re:Oh, the lack of observation.

[IgLou (732042)]

No doubt! And are you as distrubed as I am that this tech company has no idea how to use a software repository product like CMVC?? C'mon! I work in Config Mgmt and have used about half a dozen products to date it's not rocket science on how to use. Basic functions are about the same across the board.

To be fair, I imagine this is more that the lawyers don't know how to get the information they want... but still.

Re:

[Kjella (173770)]

Actually, I think SCOs logic is even simpler: We didn't find any evidence on our fishing expedition, so clearly we must have been too inept to use this tool because obviously, the evidence must be in there somewhere *rolls eyes*. This is almost as silly as watching those get caught sneaking on the tram and start rifling through their pockets "It's gotta be in here *somewhere* (Why won't you believe me and go away)"

No room for appeals.

[Darlantan (130471)]

I think Judge Wells sees what is going on and is giving SCO pretty much whatever they want, just to make sure they've got no grounds to appeal when he slaps them down (hopefully soon). Giving them all the rope they want to hang themselves with, as it were. Let's hope it works.

Re:No room for appeals.

[stevesliva (648202)]

I think Judge Wells sees what is going on and is giving SCO pretty much whatever they want, just to make sure they've got no grounds to appeal when he slaps them down (hopefully soon)

I agree. Except she's a not a he.

Re:

[nuzak (959558)]

Judge Brooke Wells: she
Judge Dale Kimball: he

Judge Wells is actually the magistrate judge appointed by Kimball to do the majority of pretrial work. She can and has made partial summary judgements from the bench, but it's ultimately going to be up to Judge Kimball to throw it out summarily. And that's looking more and more likely.

So the first thing SCO will do, as they always do, is go over Judge Wells's head and go to Judge Kimball to ask him to review the decision ... and he'll be about as sympathetic as

Re:No room for appeals.

[rbanffy (584143)]

They are lawyers and they were paid to do it, so, they will do it. They will appeal everything that's not in accord to their client's interest and they will do whatever they can to act according to the instructions received from their client.

And they should not do any different because they are good lawyers.

It's only sad they have an evil client.

There's this big reel of rope ...

[Ungrounded Lightning (62228)]

Giving them all the rope they want to hang themselves with, as it were.

There's the BIG reel of rope, hung from a pipe. Judge Wells is holding up one end of the pipe and IBM's legal team is holding up the other.

The trial isn't over yet solely because there's still some rope left on the reel. The judge and IBM want SCO to unreel it all. That way, when SCO goes to the appeal judge(s) and claims they didn't let SCO unreel it all and see if it was all the same color, they can hold up the empty reel. Then the appeals judge(s) can laugh them out of the courtroom, rather than winding all the rope back on the reel and sending them back to Judge Wells' court to do it over. B-)

sooo...

[User 956 (568564)]

From the latest in the SCO saga, Judge Wells ruled today that IBM did not destroy evidence as SCO claims.

So when can we expect the SEC investigation of SCO misconduct? I mean, they're all over Apple over some minor options backdating, the least they could do is deal with the huge pump-and-dump fraud going on in plain sight.

Re:sooo...

[Mr. Underbridge (666784)]

So when can we expect the SEC investigation of SCO misconduct? I mean, they're all over Apple over some minor options backdating, the least they could do is deal with the huge pump-and-dump fraud going on in plain sight.

There's no such thing as "minor" options backdating, it's illegal. SCO's crap, while it's obvious to us that it's a shakedown-gone-wrong turned pump-n-dump sceme, proving that is another matter. Put another way - what would the SEC hit them *for*, and what would the proof be? And could they prove fraud as opposed to incompetence?

That's the second shoe.

[Ungrounded Lightning (62228)]

So when can we expect the SEC investigation of SCO misconduct?

SCO's crap, while it's obvious to us that it's a shakedown-gone-wrong turned pump-n-dump scheme, proving that is another matter. Put another way - what would the SEC hit them *for*, and what would the proof be? And could they prove fraud as opposed to incompetence?

While SCO has plausible deniability for the claims in court, SCO executives mad a lot of public statements (such as about finding numbers of lines of infringing code) that would tend to inflate their stock price, were demonstrably false, that that the SCO executives in question either knew were false, or should have known, had they done their due diligence before uttering them. There ought to be plenty of meat there.

I'd expect that the SEC and the shareholders are holding off pending the resolution of the suit. After that, if there's anything worth going after and/or anyone left standing on the SCO side, you might see some action.

Some SCO executives ended up with money in their pockets. Some shareholders ended up losing bundles. Don't be surprised if, once SCO v. IBM is over there's another one, leveling anything left of SCO and turning the execs into imprisoned paupers.

Meanwhile, if the banking regulators are on the ball, they'll be watching the assets of the people in question, to see if they start moving into out-of-country money-cleaning-and-storage operations. B-)

Re:That's the second shoe.

[Mr. Underbridge (666784)]

While SCO has plausible deniability for the claims in court, SCO executives mad a lot of public statements (such as about finding numbers of lines of infringing code) that would tend to inflate their stock price, were demonstrably false, that that the SCO executives in question either knew were false, or should have known, had they done their due diligence before uttering them. There ought to be plenty of meat there.

We shall see. The question is if this can become a criminal issue, and I have to say I don't think so. Certainly it could be a matter of a class-action shareholder suit, but since there's going to be no money left when all's said and done, there'd be no point. For criminal, you'll have to prove that Darl knew they didn't have jack but pumped it anyway.

I'd expect that the SEC and the shareholders are holding off pending the resolution of the suit. After that, if there's anything worth going after and/or anyone left standing on the SCO side, you might see some action.

Right, but I'm assuming that all that'll be left of SCO at the end is a smoldering crater. If there's a few dimes left, I'm sure it'll find its way somehow to the insiders or the legal team, and good luck getting it back.

Some SCO executives ended up with money in their pockets. Some shareholders ended up losing bundles. Don't be surprised if, once SCO v. IBM is over there's another one, leveling anything left of SCO and turning the execs into imprisoned paupers.

I don't think you can hit the execs with civil suits. Not a lawyer, but I don't think the company's liability extends to the individuals that comprise it. As for criminal, I really think they'll need more evidence than actually exists, and it'll have to show malfeasance as opposed to stupidity.

Meanwhile, if the banking regulators are on the ball, they'll be watching the assets of the people in question, to see if they start moving into out-of-country money-cleaning-and-storage operations. B-)

Sadly, I don't think they'll need to. It pisses me off, but I think these guys fall back to earth on some rather golden parachutes. We shall see. Believe me, I hope you're right. I hate it when a shell corporation buys up a formerly good company to perpetrate bullshit like this.

Legalese Translation

[mandelbr0t (1015855)]

Judge Wells asked IBM to help SCO out in any way he could.

ROFL! This is legalese for "I'm sorry your opponent is incompetent, but we do have to get through the trial." I wonder if they get to send SCO a bill for consulting services rendered.

incredulous != incredible.

[smellsofbikes (890263)]

Mark James was certainly not incredulous. Judge Wells probably was. Anyone who reads about it, probably is.
Incredible: hard to believe. Incredulous: a person who finds something hard to believe.

I know I shouldn't be harping on about these kinds of things, but it's a common error and maybe someone will learn something.

Re:

[McFadden (809368)]

Actually, your correction needs some correction.

What he was doing was incredible to everyone else. Not incredulous. And it's an adjective, not an adverb.

It's true to say that due to years of misuse a number of dictionaries have lately introduced this definition, but historically speaking 'incredulous' was not intended for the usage you described, and it's best to avoid it if you don't want to appear a little ignorant. You could also say, what he was doing caused 'incredulity' to everyone else.

(IANA

Longest Deathwatch in Tech.

[BoRegardless (721219)]

Unfortunately the lawyers are now running SCO "till death do us part".

It would be far better for everyone if the judge just gave a summary judgement to IBM and told SCO to just commit suicide and be done with it.

I'll be glad when this is all over

[eclectro (227083)]

So I can download Linux legally.

Question for lawyers

[Beryllium Sphere(tm) (193358)]

OK, law school teaches that there are two sides to everything and that you should be able to switch to arguing the other side before the professor calls on the next student. There wouldn't be trials if the facts were obvious, you have to hear both sides in detail, etc.

That said, there is a difference between vigorous advocacy and pig-headed dishonesty.

The question for professionals out there is, what does an attorney or a firm need to do in order to get sanctioned?

A followup question would be, if any of us ever winds up in court, can the attorney(s) on the other side get away with acting like the ones for SCO have?

Of course I realize that the answer is "it depends". What does it depend on, and where do typical judges draw the line?

Re:Question for lawyers

[terwilliger jones (1053192)]

In 35 years before the bar, I never met a "typical judge". Each judge has his or her own limit of BS they'll tolerate. On a wider scale, though, it's plain from the SCO dodge-and-weave that they got nut n' honey. The judge is clearly no fool, but does not want to wallow this pig twice. IMHO, at this point you're seeing her accommodate SCO's pride, allowing them to vent the last of their spleen before granting Summary Judgment. The case appears to be over. The judge is now doing damage control.

Two Questions:

[erroneus (253617)]

Anyone care to guess when this will FINALLY be over?

Where will the party be held?

Dog ate my homework, or, Wells takes SCO to school

[Dachannien (617929)]

Freshman SCO: Uh, Professor, could I have an extension? I tried to download the assignment, but it said the file wasn't there for some weird reason.
Professor Wells: *sigh* Okay, fine. One extension, but don't make a habit of this.
Freshman SCO: Sure, sure. Thanks a lot. Oh, by the way, what server is the assignment on?

Fastest debarrment ever

[xenocide2 (231786)]

"Judge Wells asked IBM to help SCO out in any way he could."

Maybe this is why I'll never go to law school, but I'd probably respond to that at that point by placing a loaded gun on the table and tell them "Kill yourself. Now."

Re:Who cares if IBM destroyed evidence

[rewt66 (738525)]

SCO didn't fabricate evidence. If they did, they'd have some...

Re:

[oldgeezer1954 (706420)]

Nah... I'm no fan of IBM but not only did they give them CMVC but a server to host it on, instructions on operating it and an offer to assist if needed. Typical SCUmx tactics to be complaining at the 11th hour.

It's not so bad

[Weaselmancer (533834)]

If you draw a straight line, my nose is a few feet from one.