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."

Don't worry about an appeal

[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:When will it End?!?

[E IS mC(Square)]

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?!?

[EvanED]

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

Re:Oh, the lack of observation.

[IgLou]

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.

Question for lawyers

[Beryllium Sphere(tm)]

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:When will it End?!?

[rbanffy]

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?!?

[Michael Woodhams]

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 (80-90%?) to go IBM's way.

Re:Question for lawyers

[terwilliger jones]

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.

Re:When will it End?!?

[femtoguy]

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:That's the second shoe.

[Mr. Underbridge]

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.

Re:Oh, the lack of observation.

[Kjella]

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)"

The Proverbial Wool Over Everyone's Eyes

[1mck]

Has anyone noticed that there are some people getting really rich off of this? It's Darl and his cronnies that are making a fortune on this, and it's always been about this. It's like Vapourware...it's a great idea, but after millions of dollars, and nothing transpires it's just the top people who have made any money. They're going to run the company into the ground, and all of the investors will lose all of their money. Don't kid yourself, Darl and his buddies make sure that they are paid first before they give out any money for this court debacle that they know they will lose. Of course, that's just my 2 cents worth;-)

Re:Don't worry about an appeal

[Alsee]

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 think IBM will get a lot of satisfaction being able to sit down to eat dinner every day free from trolls a-knocking.

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