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The Courts Government Caldera IBM News

SCO Missing 16,209 Files? 273

FileSortingZombie writes "After all the allegations by SCO that IBM is abusing or dragging out the discovery process, over in this story on Groklaw you can read about IBM's objections to what SCO is producing in discovery, not the least of which is that there are suddenly 16,209 fewer files in the privilege log, and IBM wants to know what's become of them. Are they unprivileged, lost, destroyed, already produced, or quite simply gone? As of yet, no one seems to know. All told, IBM found fault with some 76% of their claims, especially one case where IBM says that SCO appears to be trying to claim that a conversation it had with an IBM employee should be considered confidential. One helpful Groklaw reader went so far as to put up this analysis of the complaint on his Web site for those interested in just how objectionable IBM found SCO's filing."
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SCO Missing 16,209 Files?

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  • Haha! (Score:5, Funny)

    by slashalive ( 853666 ) on Tuesday April 26, 2005 @07:00AM (#12346425)
    Gotta hope they didnt empty their trashbins!
  • by gwn ( 594936 ) on Tuesday April 26, 2005 @07:02AM (#12346434)
    ... seems to be the nature of SCO's whole case...

    (the link produced errors when first posted.)
  • Coincidental (Score:5, Insightful)

    by treff89 ( 874098 ) on Tuesday April 26, 2005 @07:05AM (#12346445)
    This is a great example of the corporate corruption plaguing the courts and, ultimately, the globe. Why were these files not seized by court officials if they are so important? In any case, IMHO there should be some form of penalty applied to SCO if these documents really could have had significant sway in terms of the court case. This is a criminal offence? (IANAL)
    • by mfh ( 56 ) on Tuesday April 26, 2005 @07:20AM (#12346503) Homepage Journal
      We are lucky to have something Marshall Berman [penguingroup.com] has enlightened us about and it's called modern progress -- companies can learn and evolve. They don't have to stay the same! They can change!

      This is a great example of the corporate corruption plaguing the courts and, ultimately, the globe.

      Just because people set up a corporation for the purpose of defrauding an industry -- don't blame all corporations. If we held every single corporation to blame for incorrect practices of employees and management, the economy would collapse. What many businesses are missing today are change mechanisms. Every company is doing something wrong right now. It's the duty of those who work there that see the impropriety to blow the whistle on bad practices, internally and if that fails, externally. If the company in question has the correct business systems in place to enable internal practice auditing to occur, then the company will survive.

      Certain people are responsible for SCO's incorrect business philosophy. Let the focus be on them, and what they did wrong, and how they manipulated little old lady stockholders into shelling out big bucks for no reason whatsoever.
      • by Anonymous Coward on Tuesday April 26, 2005 @07:45AM (#12346616)

        Certain people are responsible for SCO's incorrect business philosophy. Let the focus be on them, and what they did wrong,...

        That's one of the main criticisms of corporations. All the privileges of citizens*, none of the responsibility.

        * although these days they seem to have more privilege than citizens

    • Re:Coincidental (Score:5, Interesting)

      by Ibix ( 600618 ) on Tuesday April 26, 2005 @07:43AM (#12346604)

      My understanding, from reading Groklaw, is that this is a list of documents that SCO claim they cannot be compelled to reveal for one reason and another (attorney-client priviledge, for example). IBM will have submitted a similar list. The list was initially submitted without court oversight by agreement of both IBM and SCO. However, the list has been re-submitted because (IIRC) SCO are challenging some items on IBM's list. SCO's list is a LOT shorter, this time around.

      Why is it shorter? Could be a genuine mistake by SCO. One suggestion, again from a Groklaw poster, is that it's a tactical ploy by IBM. They agree to an initial unsupervised submission, knowing that SCO will declare (nearly) every paper they possess to be priviledged. They also know that SCO are going to challenge something on IBM's list. As soon as they do so, IBM and SCO have to re-submit their lists, with justifications for each document this time. IBM can do this easily. SCO can't because they don't have justification for much of it. IBM can then stand up and say "look at the lying little bastards, Judge" (however you say that in legalese). Just a theory (I think), but an entertaining one.


    • Re:Contempt (Score:2, Insightful)

      by Analogy Man ( 601298 )
      A few findings of contempt (with fines) and potentially disbarring some of their lawyers would push these guys back under the rocks they live under.

      If the abuse of the courts is so obvious why wait for an IBM counter suit.

    • Re:Coincidental (Score:4, Insightful)

      by ajs ( 35943 ) <`moc.sja' `ta' `sja'> on Tuesday April 26, 2005 @08:37AM (#12346914) Homepage Journal
      "if these documents really could have had significant sway in terms of the court case."

      You are confusing this with a criminal case where the police seize evidence. This is a civil case, so there is a discovery process.

      SCO (the party that filed the complaint in the first place) can do whatever they like with their documents, but every time they pull a stunt like this, their chances of winning this case (which were pretty much limited to litigation risk from the start) drop by an order of magnitude, and the chances that the judge will simply throw the case out of court go up to compensate. Ultimately, they could even be charged with a criminal offense, depending on how blatant it is that they did this to obscure the facts, as opposed to simple incompetence.

      To look at it the other way around, imagine how awful it would be if, every time someone sued your company, your books were seized. I can just see the denial-of-service type attacks now. Want to cripple IBM? Sue them just before they file their taxes! ;-)
  • Missing? (Score:5, Funny)

    by AntEater ( 16627 ) on Tuesday April 26, 2005 @07:08AM (#12346459) Homepage
    " there are suddenly 16,209 fewer files in the privilege log"

    That's awfully close to 16,384 missing files. I wonder if SCO is using MS Excel to keep track of their privilege log.
  • by physicsphairy ( 720718 ) on Tuesday April 26, 2005 @07:18AM (#12346495) Homepage
    If they're not there, they should try accusing their Chinese employees of espionage.

    Works every time!

  • by i_want_you_to_throw_ ( 559379 ) on Tuesday April 26, 2005 @07:23AM (#12346519) Journal
    but Groklaw DOES cheerfully accept donations. I'm also sure that you went over and gave P.J. at least a couple of bucks didn't you? Didn't you?

    You know folks the cure for FUD is an informed populace. God Bless you PJ. There is a place in heaven for you.
  • by jellomizer ( 103300 ) * on Tuesday April 26, 2005 @07:28AM (#12346529)
    With many of their lawsuits being thrown out of court, It is just makings IBMs counter Suit so much easier. IBM at least early on in the process asked many of its larger customers to report to them any Time loss due to this lawsuit, including meeting on changing strategy away from Linux or talking about purchasing the Linux License. IBM seems to have a big counter suit coming that will probably cripple SCO. But they will wait untill SCO empties its funds before IBM fights back.
    • But they will wait untill SCO empties its funds before IBM fights back.

      What purpose would it serve to wait? When (if?) SCO goes bankrupt, IBM won't be able to collect anything. Unless that's a false assumption, why continue spending money on attornies when it's coming out of your own budget?

      My question is...assuming that SCO loses, and goes bankrupt, don't they get to rise back from the ashes? Unless Darl & others are convicted of fraud, what's the downside for them?
      • by kfg ( 145172 ) on Tuesday April 26, 2005 @12:07PM (#12348834)
        What purpose would it serve to wait?

        SCO will not have the resources to adequately defend itself. IBM will be able to pound away and, at the very least, force SCO to a settlement on IBM's terms, the very opposite of what SCO had intended by this whole legal schmegegy; and at most leave a smoking crater whose bones it can pick at its leisure.

        SCO goes bankrupt, IBM won't be able to collect anything. Unless that's a false assumption. . .

        Assets man, assets! They claim one rather valuable one in particular.

        . . .why continue spending money on attornies when it's coming out of your own budget?

        The simplest reason is that they are the defendant. The plaintif is in the driver's seat. IBMs only choices are to see out the case or settle. Countersuits are offense as defense; and if someone's been pounding you in the courts you might feel inclined to pound back a little longer and harder than is strictly necessary when you get the upper hand. Especially if you know the suit was only filed in the first place out of some scum sucking corporate business tactic that has no real merit on its own.

        But I believe the more pressing issue is what I wrote in my very first post on the whole SCO "thing."

        Millions for defense. Not one damned cent for tribute.

        IBM does not seem inclined to settle. Go figure. It is simply in IBMs, indeed the entire industry's, best interests to leave a smoking crater where SCO used to stand to serve as a practical example of what happens to people who file a lawsuit in an attempt to force a buyout.

        No matter what it costs. Otherwise you might just as well paint a huge target around your asshole, put sand in the Vaseline, and bend over. ...assuming that SCO loses, and goes bankrupt, don't they get to rise back from the ashes?

        No. There are two kinds of bankruptcy. The first kind is for those businesses that if it weren't for the debt load would still be viable businesses. Somehow, somewhere along the line, they acquired debt that is crushing the company, but business is good. So the courts absolve them of enough of their debt and/or restructure some of it to make them a going concern again. It's a cashflow issue and a win/win for everybody, because a going concern turning a profit is better able to pay debt monies. And taxes.

        This is the sort of bankruptcy that saved Man(Gag!Choke!Vomit!)diva. In the Rolls-Royce case the court was perspicacious enough to realize that the debt of only one division was dragging the whole company down, which was otherwise profitable, and allowed the car division to live on as a seperate entity unencumbered by the debts of the aero engine division, which it liquidated.

        There are also laws to protect viable companies from being bankrupted by court judgments, since a bankrupt company cannot pay the judgment. . .or taxes. A judgement must be within the means of the company to pay it or everyone loses. Thus all those godzillion dollar judgments that you read about juries handing down are always reduced at a later date, or, at the very least, structured in such a way that amounts to a reduction (you owe plaintif $1 a year for a legal eternity, not to exceed payments of a godzillion dollars)

        Then there's the other kind of bankruptcy. Liquidation. The kind applied to the aero engine division of Rolls-Royce. If you're so far down the hole that you not only can't pay your debts, but have no means of producing income either, then you are not allowed to rise from the ashes. From ashes you came, to ashes you shall return.

        In this case the courts absolve you of debts, but sieze the assets of the company to be used in defraying them. Assests may be distributed directly or, as is more often the case, auctioned off to raise money. There's nothing left of a company after this but a piece of paper. They have no debts, but no income, no assets, and very likely a bunch of pissed
        • It's wonderfully colorful and evocative language ... I only wish it were true. IBM Legal will do what is best for IBM, and if it means not drawing out the execution of SCO and coming to some meagre settlement after which SCO withdraws all claims, they are not only inclined to do so, they are more or less obligated.

          My thinking is that Novell might just decide to buy out ("buy back" might be more appropriate) what's left when IBM is done with SCO. It won't be much -- it wasn't much before the suits -- but
    • BM seems to have a big counter suit coming that will probably cripple SCO

      What do you mean, "coming"? They've already filed at least 10 counterclaims (i.e. countersuit). Including patent violations and GPL violation(!).
  • Missing documents (Score:5, Interesting)

    by budgenator ( 254554 ) on Tuesday April 26, 2005 @07:31AM (#12346542) Journal
    The thought occurred to me is that if SCOX, seems to have removed 16209 files from their privilege logs without reason, most likely clerical errors ect.; how is anyone ever going to trust them to maintain anything as complicated as a source tree?
  • I feel sorry - (Score:4, Insightful)

    by spungo ( 729241 ) on Tuesday April 26, 2005 @07:35AM (#12346561)
    for SCO's customers. Ok - the management should be put in front of the firing squad, but the bulk of their employees and their customer base will turn out to be the real victims here. An ideal solution to this fiasco would be the incarceration of McBride/Stowell, and some reputable outfit picking up Unixware and OpenServer for a song, and continuing with their support.
    • I feel sorry for SCO's customers.

      Me too, but I've always felt sorry for SCO's customers. I've been one. And, well, even when SCO was real SCO it wasn't very nice being a SCO customer.

      I don't know if I want to go into details. I'd be hear all day, and I need to be watching my blood pressure.
      • Re:I feel sorry - (Score:3, Insightful)

        by budgenator ( 254554 )
        Actualy they treatd us pretty good, we had a app that ran on SCO xenix, a dental office management program, well eventualy we ran out of disk space, and our VAR quoted some seemingly ridiculaous price to upgrade the system, I asked "Why can't you just slap in a SCSI disk in the machine, and move the full directory over to it and clear up the problem" and there answer sounded like BS to me so eventualy I call SCO Tech support about it. They asked who we were, and the system serial number. It turned out the t
        • Re:I feel sorry - (Score:4, Interesting)

          by argent ( 18001 ) <{peter} {at} {slashdot.2006.taronga.com}> on Tuesday April 26, 2005 @12:21PM (#12348979) Homepage Journal
          Actually they treated us pretty good [good customer service story deleted]

          I have no complaints with their customer service. It's their software that burned me... over and over and over again.

          xenix wouldn't allow both IDE and SCSI busses on the same system

          Yeh, that kind of thing. And the driver configuration. And the horrible things they did to System V system configuration. And the driver configuration again, because they kept changing it. And doing the same config in 3 places with 3 different tools because the file formats were undocumented. And Secureware. And... oh, god, I can't do this. I WILL stop now.
      • by hawk ( 1151 )
        >Me too, but I've always felt sorry for SCO's customers. I've been one.


        Now if we can just find the other one :)


    • An ideal solution to this fiasco would be the incarceration of McBride/Stowell, and some reputable outfit picking up Unixware and OpenServer for a song, and continuing with their support.

      How about IBM?

      Just imagine, for a moment, that IBM win and SCO end up owing IBM loads of money (whether because they are ordered to pay IBM's costs and/or IBM win one of their counterclaims against SCO) but don't have the cash to pay up (last I heard, they only had $20m in cash left), so they may well have to reach a

      • But why would IBM want them? IBM has already made the decision that an open source unix better serves their purposes than their internal one. The last thing they need is a second internal unix to not use . . .

  • by stupidnickname ( 513210 ) on Tuesday April 26, 2005 @07:38AM (#12346576)
    This doesn't seem like a stunning development in the case; more of a minor "whoops" with a variety of possible explanations. The documents now seemingly not covered by privilege may or may not be informative, the "whoops" may or may not have been strategic and/or intentional, those documents still claimed as privileged may or may not be disputed based upon lack of information demonstrating the privilege. But it's still inside baseball: there's nothing so new here as to warrant a major news flash.

    What is interesting, at least to me, is the possibility that The SCO Group has unwittingly created an entire generation of technically literate individuals who have also closely followed the inside working of a major lawsuit. Through PJ and Groklaw, and secondarily through /. and other sources, hundreds of thousands (if not millions) of individuals have read actual court documents, debated the meaning of standing, venue, attorney-client privilege, chain of evidence, discovery, and god knows what else.

    This must be resulting in some sort of predisposition in young technogeeks for law school, or at least for thinking about legal issues. I don't want to say that it's a substitute for sitting through a contract law course, or even a legal textbook, but reading a year of comments on Groklaw must be preparing generations of youngish technology people for pursuing law as a career. It's like a real-time moot court on technology issues. The technically-minded can be drawn to the law as just another complex system, one with its own terminology, protocols, communications systems, manuals. Possibly, through following the inside baseball of this case, they might develop enough of an interest in law to choose to hack that system.

    We'll call them the "SCO generation".
    • Just what the world needs, more fucking lawyers.
    • by aziraphale ( 96251 ) on Tuesday April 26, 2005 @09:55AM (#12347503)
      Baseball, eh?

      You keep using this word. I do not think it means what you think it means...

      Possibly this is a secret trigger code. Some terrorist cell is waiting for a posting by 'stupidnickname' on the 26th of April. If it uses the word 'Baseball', then the attack should be by land - if 'basketball', then by sea...

      Or, maybe you have a rare psychiatric condition which causes you to substitute the words 'inside baseball' whenever you mean 'legal arguments'...

      Whatever, the bizarre use of language almost caused me to completely overlook the wild generalisation and crazed extrapolation of the rest of the post. Well done!
      • Umh, yeah, sorry about that. Definition of "inside baseball" for Non-USians and anyone else who is confused:

        "Inside Baseball" is a phrase meant to describe insider knowledge about a topic; applied to politics and political campaigns as much to baseball itself. Often used to describe a journalist who covers a topic, be it baseball or whatever, from a privileged position. Political bloggers have been using the phrase recently to criticize journalists who gain access to an organization or topic, and then
    • Not that the SCO case is even close in terms of viewership to this but the Alger Hiss hearings and Watergate both had interesing effects. Watergate in particular because of the tremendous detail (live coverage of the issues for months and months and months) educated millions about the details of how the federal government actually works.

  • by Zocalo ( 252965 ) on Tuesday April 26, 2005 @07:38AM (#12346580) Homepage
    Paging Mr. Sarbanes and Mr. Oxley... [s-ox.com]

    Surely *some* of those 16,000 and change documents are going to be covered by Sarbanes Oxley's data retention requirements. Do Darl McBride and Ralph Yarro have some kind of sado-masochistic desire to be investigated by the SEC or something, because this sure sounds like a hunting license to me.

    • In that document [s-ox.com] the authors make the erroneous claim that:

      "The total number of electronic records produced on the planet is expected to double every 60 minutes over a 10-year period."

      That would mean that one hour from now, the number of electronic records created has doubled, in two hours it's 4 times, in 3 hours its 8 times, and so on, for the next 10 years.

      2 to the power of 87600 (number of hours in 10 years) is a decimal number with 26,371 digits. Contrast this to one es

  • by AnuradhaRatnaweera ( 757812 ) on Tuesday April 26, 2005 @07:55AM (#12346665) Homepage
    There was a time every single news item on the case used to boost the value of SCO scocks. Not anymore; the hype has died down [yahoo.com].
    • There was a time every single news item on the case used to boost the value of SCO scocks. Not anymore;

      You also have to take into consideration that most of the news items are not very favorable to SCO.

      Just like any company, if that company receives favorable news, their stock will go up... unfavorable news, stock goes down.
    • A better look at hype is on a short term basis. Since hype is... well, short term.

      SCOX 5day graph [yahoo.com]

      SCO understands this game. We feed it.
  • by RedLaggedTeut ( 216304 ) on Tuesday April 26, 2005 @08:03AM (#12346702) Homepage Journal
    Well, I am still not fully sure what a privilege log is but it seems to be a list of documents which were compiled between SCO and its lawyers and are to be protected from court enquiry.

    I guess IBM can be happy that these documents are missing from the list now, since it means they can try to subpoena them.
    • Well, I am still not fully sure what a privilege log is but it seems to be a list of documents which were compiled between SCO and its lawyers and are to be protected from court enquiry.

      A privilege log is simply a listing of documents that are protected by attorney-client privilege whether the document is part of attorney work-product or contains legal advice, etc with the client. Normally outsiders like IBM cannot get access to them. However, there are exceptions to privilege. IBM's complaint is not tr

    • What IBM asked for long ago was something along the lines of "all documents, letters, e-mails, files, recordings, minutes, blah blah blah, ever created or exchanged on the following topics or with the following parties." So they've already been subpoenaed, see.

      So SCO sends a list over: "Here are all the documents pertaining to this matter we have ever produced." Call that list List A. Then they send a list that says "here are all the documents on List A that we won't hand over, because they are covered

      • I am a lawyer, but this is not legal advice. If you need legal advice, see an attorney licensed in your jurisdiction.

        P.S. If you have a document pertaining to a lawsuit, but you don't declare it, you go to jail for obstruction of justice.

        Perhaps in some really exotic circumstances, but civil litigation would rarely, if ever, fit the requirements for obstruction of justice.

        In civil litigation, there *might* be a contempt citation, but more likely it would stop with sanctions--which could be monetary, o
  • Hmmm... (Score:4, Interesting)

    by dadjaka ( 827325 ) on Tuesday April 26, 2005 @08:03AM (#12346709)
    It makes you wonder. They sent out mail asking for money to make Linux 'legal', and yet they can't keep track of simple files. Hate to think where my money would have gone had I been dumb enough to actually pay up.
    • Re:Hmmm... (Score:3, Funny)

      by tomhudson ( 43916 )
      They sent out mail asking for money to make Linux 'legal', and yet they can't keep track of simple files.
      ... so now you understand why nobody can seem to get a copy of the terms of the SCO linux license ... the dog ate it, along with the 16,000 other files ...
  • ... that what SCO did was an incredibly stupid idea.
    Frankly, I'm not even interested in SCO bulletins anymore.
    • "what SCO did was an incredibly stupid idea."

      Was it? How many people close to the company got rich off this "stupid" move? Daryl and his pack of frothing lawyers have made money hand-over-fist off the people they've suckered into investing in this sham. Basically, investors threw money into a major gamble with an incredible payoff. It's like playing the lottery; you know you're wasting your money, but you keep hoping at the chance at big bucks. This is a classic pump-and-dump stock scheme, and I tend to t
  • by advocate_one ( 662832 ) on Tuesday April 26, 2005 @08:19AM (#12346789)
    I always wondered what happened to him... looks like he's been very busy at the shredders again...
  • by DoorFrame ( 22108 ) on Tuesday April 26, 2005 @08:37AM (#12346913) Homepage
    I mean seriously, Haig McNamee, that's got to be a fake name right? McNamee? It sounds like someone couldn't remember the last name of the guy they talked to at IBM, thought it was Irish, and just threw McNamee down on the page. They're probably trying to protect it because it makes them look really stupid and a little bit racist.

    Just a guess.
  • Not Missing! (Score:5, Insightful)

    by WPIDalamar ( 122110 ) on Tuesday April 26, 2005 @08:50AM (#12347003) Homepage
    Good lord people, these documents aren't somehow gone. Go RTFA.

    1. A while back they claimed a whole bunch of documents as privileged.
    2. Now they don't.

    What's "missing" is an explanation of why, not the documents themselved. Since they're not privleged, it would go to reason that IBM can now compell them to turn all of those over, only when they do this will we learn if the documents are missing.
    • In a case like this why they are or aren't on the privileged list may be more important than if they exists or not. Because it's about IP ownership, we know that there is code in unix SVR5 and Linux that's the same, big chunks of it; what's important to the case is things like how the code got in both places because some are infringing and some are not.
    • This almost seems like one of those "right hand/left hand" things. When being ordered to turn over documents, they will point to their original priviledge log that includes everything and the kitchen sink so they won't have to disclose anything. Then when it comes to debating the merits of "the priviledge log", they will point to and debate the later, much-reduced version. Then they can proclaim loudly about they have so few things marked priviledged and IBM is the one with the long list and is trying to
  • by SkyLeach ( 188871 ) on Tuesday April 26, 2005 @10:49AM (#12348017) Homepage
    A privilege log is a log of information covered by client/attourney privilege such as letters between councels, letters from client to councel, testemonies to councel, etc... It is logged to prevent your opponent from finding and submitting the information in court and then claiming it wasn't covered by privilege.
  • by 4of12 ( 97621 )

    SCO was obviously full of it and as the slow wheels of justice turn and grind exceedingly fine the world is finding out just how baseless were their claims.

    Are those claims not so baseless and trumped up, and have not various stock price fluctuations occurred as a result that have enriched various individuals?

    I'm wondering if the machinations behind the SCO move are not so flagrant that they could constitute a reason for ultimately piercing the corporate veil of protection. At the least, I would expect a

  • "Can we have those tapes now, Mr. Nixon?"
  • They're now getting closer to the point where they'll have to justify their privilidge claims before the court, so they've dropped the ones they don't think they'll be able to defend.

Unix will self-destruct in five seconds... 4... 3... 2... 1...