SCO asks judge to rule on document requests

The SCO Group hopes a federal judge will rule that a magistratejudge erred by not considering the company's request for morediscovery in the Lindon-based company's case against InternationalBusiness Machines Corp.

U.S. District Judge Dale Kimball said he will rule "shortly" onthe matter, which was the subject of a hearing Tuesday.

SCO attorney Edward Normand said that in an October ruling, U.S.Magistrate Judge Brooke Wells did not address issues about SCO'srequest for more nonpublic documents from IBM regarding IBM'sdevelopers' contributions to the Linux computer operating system.

SCO has filed a multibillion-dollar lawsuit claiming IBM violatedits license with SCO by placing parts of SCO's Unix operating systemsource code into the code for Linux, a freely distributed system thatis developed and enhanced by contributors worldwide. IBM and othercompanies make computers that use Linux. The IBM/SCO contract allowedIBM to use Unix internally but prohibited Unix from being transferredoutside IBM.

The high-profile case is being closely watched by the techcommunity because of its possible ramifications to IBM, SCO andLinux, as well as other companies, including Microsoft Corp., whoseproducts compete with Linux.

Normand told Kimball on Tuesday that IBM has offered nonpublicdocuments from 20 of its Linux developers, but SCO wants materialsfrom up to 300. Those materials would include so-called "sandbox"documents, such as programmer notes, comments, e-mails and interimsource code versions of certain operating systems, including internalIBM documents before any litigation was filed.

SCO so far says it has identified 217 "technologies" that IBMimproperly and knowingly contributed to Linux from the source codesof Unix System 5 and IBM products AIX and Dynix, Normand said, addingthat "the internal IBM documents show how that is true." SCO alreadyhas found admissions about those contributions, and an expandeddiscovery pool would reveal more, he said.

IBM so far has produced only 16 percent of the 300 IBM Linuxdevelopers' files, he said.

But IBM attorney David Marriott said Wells did consider SCO'sarguments for more IBM documentation and that her ruling is notcontrary to law and contained no clear errors.

While SCO is seeking nonpublic documents, Marriott said theInternet contains plenty of information about IBM's Linuxcontributions -- "more than you'd ever like," he said. Moreover, IBMhas produced the equivalent of about 1.5 million pages of paper forSCO, including information from 236 "custodians." That figureincludes files from about 80 people, not the 20 SCO claims, he said.

Wells "got it just right" when she set "reasonable limits ondiscovery" that SCO would get from IBM, Marriott said.

Marriott also said he doubted Normand's assessment that increaseddiscovery would not substantially affect the case's schedule. SCOtook advantage of an IBM offer to make documents available from 20developers, but sifting through that took 60 days, he said. Searchingthrough "at least a million pages of paper" from an expandeddeveloper list would take more than a year, he said.

E-mail: bwallace@desnews.com