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SCO, IBM To Share Secrets

UPDATED: The copyright-themed trial between SCO Group and IBM took another twist as the presiding judge ordered both sides to provide information previously considered privileged, SCO officials said Tuesday.

Judge Brooke Wells, U.S. District Court Judge for the District of Utah, has ordered affidavits from Sam Palmisano, IBM chairman of the board and CEO, Irving Wladawsky-Berger, IBM vice president of technology and strategy.

According to a SCO official, SCO's lawyers argued that the two hadn't handed over the documents originally sought regarding IBM's Linux activities. The lawsuit's origins are part of SCO's claim that IBM broke a contract by improperly including SCO's Unix intellectual property in AIX, which is IBM's own version of Unix.

SCO officials are likely to view the decisions Tuesday as a win for the company in its renewed motion to compel discovery suits filed earlier this year.

Judge Wells, however, did suspend a ruling on SCO's request for IBM's Configuration Management and Version Control System (CMVC) and Revision Control System (RC), which keeps track of all software changes to a program.

"One of the things IBM mentioned in its arguments was that it handed over everything that was not privileged and what was privileged, they didn't share," said Blake Stowell, SCO spokesperson. "I think that's probably one of the reasons why she suggested why she would like to see privilege logs -- in other words, everything that wasn't handed over because it was privileged -- to see what was and wasn't handed over and why."

When asked what information SCO was required to hand over, Stowell wouldn't say, noting the judge didn't request any specific document from SCO. He said that that didn't necessarily mean SCO doesn't have privileged information to hand over to the court.

IBM officials were not available for comment at press time.

The information exchange slated for the two companies signals another yet another turn in a $5 billion lawsuit case that shows no sign of ending soon, or becoming any less complex.

The discovery phase of the trial isn't expected to end before February 2005, after which IBM and SCO lawyers will get ready for the jury trial phase of the lawsuit. That is expected to take place by mid-2005.

The Lindon, Utah, software company is suing IBM for allegedly swiping licensed Unix system V code from its AIX operating system and using it to bolster the Linux operating system kernel; SCO lawyers say it is in breach of contract and a copyright infringement.

SCO filed an amended complaint against IBM for the third time on Oct. 14. Though the filing is under seal, or not for public viewing, an observer in the court said some of the filing's claims were discussed in Tuesday's public hearing.

The amended complaint refers to Project Monterey, a joint project between IBM, SCO and Sequent to build a 64-bit Unix-based operating system, the observer said.

IBM reportedly scrapped the project in May 2001, but not before SCO shared "valuable information and trade secrets with respect to architecture, schematics and design of UnixWare and the Unix Software Code for Intel-based processors" with IBM engineers. The original filing from March 2003 maintains IBM had no experience running Unix on an Intel chip before partnering with SCO.

"SCO's alleging that IBM, during its work on Project Monterey, allegedly took some SVR 4 code, that was only intended for Project Monterey in order to help create this operating system for the 64-bit Itanium processor, and took that code and put it into AIX for PowerPC," an observer at the trial said.

(Story updates prior versions to also reflect AIX is IBM's version of Unix.)

internetnews.com's Timeline of the SCO/IBM Case
March 6, 2003 SCO files initial breach of contract lawsuit against IBM for $1B
May 14, 2003 SCO suspends Linux sales, sends 1,350 letters to customers
June 16, 2003 SCO terminates IBM's System V licensing contract
July 21, 2003 SCO gets System V, UnixWare copyrights
August 13, 2003 SCO terminates IBM subsidiary Sequent's System V contract
September 25, 2003 IBM files counterclaim to SCO suit
December 5, 2003 Judge gives SCO 30 days to show infringing code
January 12, 2004 SCO hands infringing code to IBM
February 6, 2004 SCO seeks to add two copyright claims to IBM suit, raise stakes to $5B
February 26, 2004 IBM says it won't contest infringement additions to suit
February 27, 2004 Court adds copyright claims to SCO's IBM suit
March 29, 2004 SCO seeks to split breach of contract, infringement claims into separate trials
March 31, 2004 IBM files second counterclaim to SCO suit
July 15, 2004 SCO files a Renewed Motion to Compel while it continues lawsuit activities against Novell, Red Hat and AutoZone.
August 18, 2004 IBM calls for summary judgment on SCO's contract claims