Judge Orders IBM and SCO to Show Source

After several weeks of waiting, the U.S. District Court in Utah on Wednesday ruled in the SCO-IBM case on The SCO Group Inc.s motion to compel IBM to reveal its AIX code and IBMs motion to compel discovery of the Unix code SCO claims has been taken by IBM and placed in Linux. The result? A tie.

United States Magistrate Judge Brooke C. Wells ordered both companies to reveal some source code with each other.

With the ruling, IBM must provide 232 previously-mentioned AIX files. If SCO wants more, the company must show “how these files support its position and how they are relevant.” SCO also cant require these files for every AIX version.

On the other side, SCO has 45 days to comply with IBMs discovery demands that SCO identify “all specific lines of code” that SCO alleges IBM put into Linux from AIX or Dynix.

In addition, SCO must provide “with specificity all lines of code in Linux that it claims rights to; provide and identify with specificity the lines of code that SCO distributed to other parties, and must include “where applicable the conditions of release, to whom the code was released, the date and under what circumstances such code was released.”

Wells also ordered both companies “to provide to the court an affidavit detailing their respective efforts in complying with this order. Those affidavits should also contain a statement that the respective answers and materials provided are given to the best of each parties knowledge and are complete, detailed and thorough.”

/zimages/3/28571.gifRead morehereabout the two companies legal maneuvering here.

Glenn Peterson, intellectual property attorney and shareholder with the Sacramento, Calif.-based law firm McDonough Holland & Allen PC said the judges order could be considered “slightly bullish for the IBM camp and slightly bearish to the SCO camp.”

“The order is clear in requiring SCO to put up or shut up. SCO is ordered to identify with specificity all lines of code that IBM allegedly misappropriated, all code that SCO claims rights to, and all code that SCO released to others, including the terms of the release. Essentially, the court is requiring that SCO present a prima facie case at this early stage. The court is clearly interested in knowing whether SCO has enough evidence to hold its case up. The message from the court is I hear your allegations, now show me some proof,” he said.

At the same time, the order “demonstrates a mildly protective attitude toward the discovery burden on IBM,” Peterson continued.

“Judge Wells is clearly not allowing SCO any fishing expeditions. The order requires that IBM provide release documents associated with a discrete list of products. Then, SCO is required to justify with additional court papers the reasons why it should be allowed to pursue additional files from IBM,” he observed. “The exercise of incremental control over discovery is unusual in business litigation. The implicit message in the order as a whole is a clear directive to SCO: [to]justify your case and justify your discovery requests. To put it in the parlance of poker players, the judge has called this hand Jacks or better to open,” Peterson concluded.

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