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Compuware Calls for IBM Sanctions

Lawyers for software vendor Compuware filed a motion with a U.S. District Court in Michigan, asking a federal judge to impose sanctions against IBM for producing source code two years too late.

The latest motion in its ongoing lawsuit against IBM claims Big Blue released source code on Aug. 11 -- two years after the discovery phase of the trial began -- which Compuware lawyers said was necessary to prove its case.

Compuware filed suit against Big Blue in March 2002, accusing it of pilfering source code from its mainframe software technology, File-AID and Abend-AID, and using it for its own mainframe products, File Manager and Fault Analyzer. Compuware also contends IBM is using its dominance in mainframes to stifle competition in the software tools market.

As part of the motion, the company wants the judge to grant a default in favor of Compuware. At the very least, lawyers argue, Compuware should get reimbursed for the thousands of man hours spent taking depositions and drafting reports to support its case.

Compuware lawyers also claimed that pre-version 1 File Manager source code was discovered in areas IBM officials had previously sworn under oath during depositions as having already checked.

Compuware lawyers said the new evidence will take thousands of hours to review and analyze; the case will also incur millions of dollars to re-take depositions and draft up new reports, they added. Even more damaging, the document states, is that IBM used the lack of evidence as its basis for defeating a preliminary injunction last year, according to a copy of the motion obtained by internetnews.com. This would have halted IBM's sales of File Manager and Fault Analyzer.

"In startling contrast to numerous sworn statements by its employees and lawyers, IBM has suddenly found critical source code more than two years after the court ordered IBM to produce that code," said Thomas Costello, Jr., Compuware general counsel, in a statement Wednesday. "Introducing this evidence more than two years after the court requested it and less than 90 days before the scheduled start of the trial is nothing but a last-ditch attempt to sandbag Compuware with additional burdens and delays."

Tim Breuer, an IBM spokesperson, said the company has been diligently searching for all versions of the source code requested by Compuware, and promptly forwarded the code when found. IBM officials think there are other reasons for the emergency motion.

"Compuware's motion is a litigation tactic designed to draw attention away from the fact that the materials located and produced by IBM found that Compuware's trade secret and copyright claims are without merit," he said.

"IBM intends to respond to Compuware's motion in due course and is confident that -- like any other Compuware motions in this case, including Compuware's motion for a preliminary injunction, which was denied in 2003 -- Compuware's latest motion will also be denied."