SCO vs. IBM					 Tech Insider's Review

From: Al Petrofsky <>
Newsgroups: alt.os.linux.caldera
Subject: SCO's evidence in support of its claim that IBM spoliated 
Date: 27 Mar 2007 15:12:58 -0700
Organization: The Vegetable Liberation Front
Message-ID: <>
User-Agent: Gnus/5.09 (Gnus v5.9.0) Emacs/21.2
MIME-Version: 1.0
Content-Type: text/plain; charset=us-ascii
Cache-Post-Path: smirk!
X-Cache: nntpcache 3.0.1 (see
Lines: 290
Xref: alt.os.linux.caldera:311

Last week, from mid-Tuesday to Thursday morning, SCO's sealed evidence
in support of its spoliation claim was available from the court's
website at the following URL (registration and $2.40 fee required):,17917,2,,,,,

It's no longer there, but I've made a copy available here:

These were exhibits attached to a declaration by Mark James in support
of SCO's motion to reconsider Magistrate Judge Wells's order that
denied SCO's original motion for relief from IBM's alleged spoliation
of evidence.  See:

  The reconsideration motion:
     Redacted opening brief:
     James declaration:
        Unsealed exhibits:
        Sealed exhibits:
     Rochkind declaration:
     Ivie declaration:

SCO contends that IBM employee Randy Swanberg instructed some Linux
programmers to remove AIX code from their computers, and Daniel Frye
instructed some Linux programmers to remove Dynix code from their
computers.  The principal pieces of evidence of this are an email from
Swanberg, and portions of the depositions of Frye and of one of the
programmers, Paul E. McKenney.  Here is the entire text of the
Swanberg email:

   From: CN=Randy Swanberg/OU=Austin/O=IBM on behalf of Randy
           Swanberg (CN=Randy Swanberg/OU=Austin/O=IBM)
   Sent: Tuesday, April 08, 2003 1:59 PM
   To: Amir Simon; Tom Mathews; Kaena Freitas; Randy Greenberg; Kumar
           Nallapati; Robert Ruyle; Rakesh Sharma; Michael Lyons
   Subject: pLinux Work

   Lotus Notes v5 Memo Note
   One of the first steps toward OSSC approval is complete.....Kaena and I
   presented to the OSSC core team today and things went fairly well, especially
   considering the very broadly worded approval we are seeking.  Still have some
   legal approvals to obtain, but its in the works.....

   One important thing that came out of today's meeting......For all Linux
   developers who have had their CMVC and DFS AIX source access removed, we also
   need to communicate to them that they need to purge any old AIX source
   (sandboxes, etc.) from their machines.   We also need to take a look at what
   other machines (department servers, build machines, etc.) they have
   access/logins to, and either temporarily remove that access or be able to show
   that no other "sandboxes" are accessable by them on those machines
   (permissions, NFS exports,  etc..).

   Randy Swanberg
   IBM Corporation, UNIX Software Development

IBM's writen response to this reconsideration motion is not due until
April 5 (per DUCivR 7-1(b)(3) and FRCivP 6(e)).  However, IBM's
responses to most of SCO's arguments can be found in the briefing and
argument on the original spoliation motion:

     Proposed order:   
     Redacted opening brief:
     IBM's redacted opposition:
   Hearing transcript: 

One of SCO's main arguments on reconsideration is that the evidence
allegedly destroyed was *not* source code itself (all of which is
apparently available in the CMVC and RCS databases) but rather was
information about what source code might have recently (as of April
2003) been looked at by Linux developers.  To analogize, SCO says that
IBM told its programmers, in effect: turn in all your library books,
and if you have any photocopies lying around of books that you've had
at some point, then throw those out too.  SCO says that even though
the library records show who had what checked out and when they
returned it, the records do not show what copies lying around the
programmer's offices were thrown out in April 2003 in response to the
directives.  SCO says that had it known what AIX and Dynix code had
recently been on a Linux developer's computer, then it could have
looked more closely at possible similarities between that AIX or Dynix
code and that developer's Linux code, and this would have been of
material help to SCO in finding evidence of contract and/or copyright

IBM doesn't seem to have really responded to this argument in its
opposition brief to the original motion.  This seems to have been
because SCO did not make this argument in its opening brief on the
original motion.  It's difficult to say for sure, because all the
briefs are sealed, with only redacted versions available.  Here's how
IBM described SCO's argument shift at the hearing:

   Finally, Your Honor, SCO has to prove that it was prejudiced, and
   it comes nowhere close.  The original premise of this motion as it
   was filed was that original source code has been lost, we no longer
   have ability to look at it.  In our opposition, we demonstrated and
   SCO now concedes that nothing was lost.  And, in fact, the very
   source code that SCO claims was lost has been sitting in its
   counsel's office on the CMVC.  So now, Your Honor, there is a
   revised premise, there is a new premise of this motion.  It's no
   longer about, well, we now lost source code and don't have the
   ability.  Now the premise is, well, we may not have lost source
   code, but what we lost is the ability no [sic] figure out which
   particular programmers had looked at or had access to which
   particular AIX or Dynix source code.  That, Your Honor, is wrong.
   SCO has that information in spades.

(January 18 hearing transcript at 45:4-18, p. 38 in doc. #1010-2)


I believe these sealed exhibits were continuously available from the
court for more than 43 hours, from at least 12:56 Tuesday through
08:19 Thursday (Utah time, -0600).

At 17:55 Wednesday, I sent the court an email (included below) in
which I pointed out how I believe the error occurred: the attachments
were not included when the document was originally entered but were
added later; and the system apparently does not automatically seal
additional images that are later added to a sealed document entry.  I
pointed this out in order to help the court avoid repeating the
mistake.  I figured they would do that either by:

   (1) Educating the users of the system about this pitfall; or

   (2) Changing the software to automatically seal additional images
   that are added to a sealed document entry.  

On Friday, they instead adopted (for this case, at least) the simpler
but more drastic solution of ceasing to scan sealed documents:

   #1012 NOTICE FROM THE CLERK'S OFFICE: From this day forward, sealed
   submission in this case will not be scanned for internal court use
   but will be maintained in the court's sealed room not to be
   accessed except by court personnel. (ce)
I hope they also adopted solution (1) or (2) for the rest of the
court's cases.  On the docket, you can see that on Thursday they also
went back and fixed the other sealed item in this case that had been
in the same state, doc #765 filed last September.  (The
inadvertantly-available attachments on that item were just copies of
unpublished opinions that had been cited in the main document.  The
opinions can still be found in the attachments to doc #822, which is
the redacted version of doc #765.)

The Clerk's Office also entered a "reminder" on Friday that even
though these exhibits were made publicly available by the court, they
are still among the items subject to the Stipulated Protective Order:

   #1011 NOTICE: It has come to the attention of the Clerk's Office
   that certain attachments to a SEALED DOCUMENT filed in this case
   were inadvertently left unprotected during the Court's docketing
   process.  Therefore, these sealed, confidential attachments were
   accessible for a short period of time to anyone who attempted to
   electronically access the contents of this docket entry, which
   clearly stated that it contained a SEALED DOCUMENT.  This notice
   serves as a reminder that, regardless of whether SEALED DOCUMENTS
   are actually electronically protected from being accessed, all
   documents marked CONFIDENTIAL are subject to the Protective Order
   entered by the Court on September 16, 2003.  (kmj)

Thus, if you are one of the parties that stipulated to the Stipulated
Protective Order, or if you are one of the people who subsequently
signed a Disclosure and Acknowlegment form and thereby agreed to
comply with the order, then I suppose you better not send a copy of
this message to anyone.  For details, see the protective order and its

By the way, it's not clear to me that these exhibits were legitimately
designated as confidential and filed under seal.  The protective order
says that items should not be designated confidential if they do not
include information "that would be valuable to third parties,
including but not limited to the DISCLOSING PARTY'S actual and
potential competitors" (order at p. 3, sect. 1(c)).  I don't really
see what information in these exhibits would be valuable to what
competitors or other third parties.  

Earlier in this case, in April 2005, in response to a motion by some
news agencies (G2, CNET, and Forbes), Judge Kimball gave both parties
a brief amnesty period to identify illegitimately sealed documents
that should be unsealed, and he threatened to sanction future improper
confidentiality designations.  Both parties took advantage of the
amnesty and asked the court to unseal a plethora of illegitimately
sealed items.  See the April 28, 2005 order, #438, and the parties'
notices, #449 and #451:


   Date: Wed, 21 Mar 2007 16:55:23 -0700
   From: Al Petrofsky
   To: "Bonnie King, docket clerk for Judge Kimball"
   CC: "Brent O. Hatch, counsel for plaintiff SCO Group"
      "Alan L. Sullivan, counsel for defendant IBM"
      "Michael P. O'Brien, counsel for movants G2, Forbes, and CNET"
      "Maureen O'Gara, G2 Computer Intelligence"
      "Bob Mims, Salt Lake Tribune"
      "Paul McDougall, InformationWeek"
      "Anne Morgan, law clerk to Judge Kimball"
      "Susie Hindley, law clerk to Judge Kimball"
      "Honorable Blogger David Nuffer,"
   Subject: Sealed exhibits to doc. #996 in SCO v. IBM, 2:03cv294

   Dear Ms. King:

   I would like to bring to your attention the fact that the sealed
   exhibits that you entered on the docket yesterday as the third image
   under document #996 in SCO Group v. IBM, 2:03cv294, are currently
   available (as of 5:40 PM MDT), to any member of the public with two
   dollars and forty cents, through the following URLs:,17917,17917,2,,,,,

   These exhibits include the April 2003 email that IBM has designated
   confidential and that SCO contends was an instruction by an IBM
   executive directing programmers to destroy evidence.  (The Magistrate
   Judge determined that there was no intended nor actual evidence
   destruction, and the issue is currently before the District Judge on
   review.  (footnote 1))

   The exhibits were attached to a declaration that was originally
   entered on the electronic docket without any attachments, at 12:45 PM
   on March 20.  A few minutes later, the attachments were added to the
   docket item.

   It appears that when an item is entered with event type "Sealed
   Document", the system automatically seals all document images that are
   included at the time of entry.  However, if additional images are
   later added to a "Sealed Document" entry, the system apparently does
   not seal these additional images unless the person adding them takes
   some explicit step to cause them to be sealed.  (I have never had
   court-user access to an ECF system, and I am just describing what I
   think I have managed to accurately surmise.)

   I hope you find this information useful in the future.  Of course,
   this particular horse would seem to have already left the barn.

   There is significant public interest in this document, and I intend to
   make it available this weekend, to all people with or without two
   dollars and forty cents, through a website of mine named
   (footnote 2)

   If the court intends to enter an order (either on its own initiative
   or upon motion by a party) that purports to forbid me from
   distributing the document, then I would like to suggest that the order
   mention me by name, so that I will be able to determine unambiguously
   that it is directed at me, and we can avoid all the ridiculous
   confusion that ensued after the June 2005 order in Merkey v. Perens et
   al. (footnote 3).  It is my position, of course, that such an order
   directed at me would be an unconstitutional abridgment of speech, in
   addition to any jurisdictional and other problems that such an order
   might have.

   Yours truly,

   Al Petrofsky


   1. See doc. #995, redacted in doc. #1002:

   2. Specifically, I intend to place the document at the following URL:

   3. See the June 22, 2005 order (doc. #2) and September 21, 2006 order
   (doc. #46) in Merkey v. Perens et al., 2:05cv521-DAK, available

From: Alphabet Soup Petrofsky <>
Newsgroups: alt.os.linux.caldera
Subject: Re: SCO's evidence in support of its claim that IBM spoliated 
Date: 27 Mar 2007 16:16:05 -0700
Organization: The Vegetable Liberation Front
Message-ID: <>
References: <>
User-Agent: Gnus/5.09 (Gnus v5.9.0) Emacs/21.2
MIME-Version: 1.0
Content-Type: text/plain; charset=us-ascii
Cache-Post-Path: smirk!
X-Cache: nntpcache 3.0.1 (see
Lines: 128
Xref: alt.os.linux.caldera:313

Here's my followup email to the email I included in the parent message:

   Date: Tue, 27 Mar 2007 16:03:27 -0700
   From: Al Petrofsky
   To: "Brent O. Hatch, counsel for plaintiff SCO Group"
      "Alan L. Sullivan, counsel for defendant IBM"
      "Michael P. O'Brien, counsel for movants G2, Forbes, and CNET"
      "Maureen O'Gara, G2 Computer Intelligence"
      "Bob Mims, Salt Lake Tribune"
      "Paul McDougall, InformationWeek"
      "Anne Morgan, law clerk to Judge Kimball"
      "Susie Hindley, law clerk to Judge Kimball"
      "Honorable Blogger David Nuffer,"
   Subject: Re: Sealed exhibits to doc. #996 in SCO v. IBM, 2:03cv294

   Dear Sirs and Madams:

   I have now made the sealed exhibits to doc. #996 in this case
   available at the following URL:

   For your information, I have included below an excerpt from a message
   I posted to alt.os.linux.caldera, a usenet newsgroup.

   Also, in light of the clerk's reminder on Friday (doc #1011) that
   sealed items are subject to the protective order even if they were
   publicly available from the court for a time, I suppose I should point
   out that one of the parties bound by that order, SCO, has for the last
   year been publishing on its website the Houlihan valuation documents
   (attachments to doc. #631), which were made available from the clerk
   when they were filed, but which were subsequently sealed by order
   #649.  See:

   I commented on that situation last year in a message I posted to
   Yahoo's SCOX stock message board.  I've included a copy of that
   message below as well.

   I do not intend to send you any more unsolicited emails about this
   matter, and I apologize for bothering any of you who may not have
   found this email or my prior email to be of interest.

   Yours truly,

   Al Petrofsky

   P.S.  I do not appear to have a valid email address for Bonnie King.
   I trust that someone else at the court will show her this message, if
   it is thought to be of interest to her.


 [excerpt from parent message, <>]


      15-Apr-06 03:31 pm, by al_petrofsky

      Subject: Confidentiality of Houlihan Valuation

      One of the difficulties in fathoming the sealed filings in this
      case is that even though you can see who filed a sealed item, you
      generally can't determine whether it was the filing party or the
      other party that designated the sealed item as confidential.

      Particularly peculiar are the Caldera valuation documents attached
      to the Houlihan Valuation Advisors subpoena filed on February 22
      (Docket #631).

      On March 9 (#641), the parties jointly moved for this item to be
      sealed, without any statement of who believed it to be confidential
      or why.

      (The order sealing the item (#649) was signed on March 10, filed on
      March 13, but not entered until March 15.  In the meantime, the
      parties filed a second copy of their motion on March 13 (#648).)


      1. SCO had been publishing this item at, and still
      continues to do so, which would indicate that SCO doesn't really

      2. IBM, of course, was the one who filed it unsealed in the first
      place, which would indicate that IBM doesn't really care.

      3. Both SCO and IBM took their time before asking for it to be
      sealed, indicating a joint lack of caring.

      Thus, there are multiple strong indicators that both parties don't
      actually give a [REDACTED] about the confidentiality of this

      Amusingly, the only party that can be discerned giving a [REDACTED]
      is non-party, which dutifully removed the item after
      the Clerk was ordered to seal the court's copy.


From: Altoid Petrofsky <>
Newsgroups: alt.os.linux.caldera
Subject: Google Groups removal procedures 
[Re: SCO's evidence in support of its claim that IBM spoliated 
Date: 04 Apr 2007 12:39:02 -0700
Organization: The Vegetable Liberation Front
Message-ID: <>
References: <>
User-Agent: Gnus/5.09 (Gnus v5.9.0) Emacs/21.2
MIME-Version: 1.0
Content-Type: text/plain; charset=us-ascii
Cache-Post-Path: smirk!
X-Cache: nntpcache 3.0.1 (see
Lines: 262
Xref: alt.os.linux.caldera:315

For anyone interested in Google Groups's procedures: below is some
correspondence about the parent of this message, which Google said
last week it intended to remove from the Google Groups usenet archive,
but which Google now says it does not have any imminent plans to

If you're reading this at some point in the future, and Google has
gone on to remove the message in question, then you can probably still
find it at any of the several other websites that archive this
particular newsgroup, and of course it's likely also still available
from some of the thousands of usenet servers that carry this group.
Just in case, though, I've put a copy of it at the following URL:

If you are the "Third-Party Notifier" (who is apparently not yet a
"Formal Requestor"), then please see my arguments in my first email
below.  Also, please send me a copy of whatever court order you are
talking about, if it turns out that I did not guess correctly.



   Date: Thu, 29 Mar 2007 16:14:24 -0700
   Subject: [#130236897] Google Groups Post

   Hi Al,

   Google has been notified, that content posted by you on Google Groups,
   violates an order by the court not to publish sealed documents. The
   content in question is located in the following post:

   We are asking that you please remove the allegedly infringing post. If you
   do not do this within the next day (by March 30, 2007), we will remove the
   post in question. 

   If you have legal questions about this notification, you should retain
   your own legal counsel. If you have any other questions about this
   notification, please let us know.

   Thank you for your understanding.

   The Google Team


   Date: Thu, 29 Mar 2007 22:08:45 -0700
   From: Al Petrofsky <>
   To: "The Google Team" <>
   Subject: Re: [#130236897] Google Groups Post

   Hi Team,

   Thank you for your email.  For the reasons below, I encourage you not
   to remove the post from Google.

   If you have legal questions about this response, please have your
   legal counsel contact me using the contact information at the end of
   this email.

   If the party that notified you of this alleged problem is threatening
   legal action against you unless you remove the post, then please
   forward to me the communication that you received, and/or put me in
   contact with this party in order that we may all attempt to come to a
   common understanding.  To date, I have not received notice from any
   person alleging that there is anything unlawful about my having posted
   the message in question.

	I.  The Order is Not Directed at Google Nor at Al Petrofsky

   I am guessing that by the words "an order by the court" you mean the
   September 16, 2003 Stipulated Protective Order by the United States
   District Court, District of Utah, entered as document #38 in Case
   No. 2:03cv294, SCO Group v. International Business Machines (IBM).  A
   complete copy of that order and its exhibit can be found at the
   following URLs:

   If you mean some other court order, please send me a copy of it.

   If by the words "content ... violates" the order, you mean that I have
   violated the order, or that Google would violate the order by
   continuing to make the content available, then I believe you are
   mistaken.  The order is directed at the Plaintiff and Defendant, and
   at some miscellaneous persons related to the litigation.  It is not
   directed at Al Petrofsky, nor Google, Inc., nor the world at large.
   Per sections 1(F), 4(F), and 13 of the order, it is also binding on
   various witnesses and other third-parties who have signed a
   Declaration and Acknowledgment form (Exhibit A to the order) and
   thereby agreed to comply with the order (per paragraphs 5 and 9 of the
   Declaration), but I do not believe that Google is among the
   third-parties that have done so.

	      II.  An Order Directed at Google or Al Petrofsky
			 Would Be Unconstitutional

   The allegedly confidential information in the message was provided to
   me by the District Court.  I would like to draw your attention to the
   holdings of the United States Supreme Court regarding information that
   has been lawfully obtained:

      [I]f a newspaper lawfully obtains truthful information about a
      matter of public significance then state officials may not
      constitutionally punish publication of the information, absent a
      need to further a state interest of the highest order.

   (Smith v. Daily Mail Publishing Co., 443 U.S. 97, 103 (1979))

   This applies even when the public officials that made the information
   available did so mistakenly:

      [T]he newspaper "lawfully obtain[ed] truthful information ..." ...
      [T]he fact that state officials are not required to disclose such
      reports does not make it unlawful for a newspaper to receive them
      when furnished by the government.  Nor does the fact that the
      Department apparently failed to fulfill its obligation under 794.03
      not to "cause or allow to be ... published" the name of a sexual
      offense victim make the newspaper's ensuing receipt of this
      information unlawful.

   (The Florida Star v. B. J. F., 491 U.S. 524, 536 (1989))

   For a recent holding that individuals publishing news on the internet
   are entitled to the same protections as a traditional "newspaper", see
   O'Grady v. Superior Court (Apple Computer, Inc.), 139 Cal.App.4th 1423

		      III.  I Did Not Post To Google,
	  And I Have No Power To Comply With Your Removal Request

   Even if I did see good reason to cease disseminating the information,
   I do not understand how you think I would go about complying with your
   request that I remove something from Google.

   I should point out that I have never posted anything directly to
   Google Groups.  What I did on Tuesday was post a Usenet message, with
   Message-Id <>, to Usenet newsgroup
   alt.os.linux.caldera, through my local Usenet server.  The message has
   since propagated to thousands of other Usenet servers throughout the

   There are several websites that retrieve all postings that are
   available on the Usenet newsgroup and make copies of them available on
   the World-Wide Web.  Google Groups is one such site.  That is why a
   copy of Usenet message <> has come to be
   available at the URL you mentioned in your email.  Here is some
   helpful information about Usenet and the relationship between Google
   Groups and Usenet:

      2. What is a Usenet Newsgroup?

      Usenet refers to the distributed online bulletin board system begun
      in 1979 at Duke University. Usenet users can post messages in
      newsgroups that can be read or contributed to by anyone with access
      to the Internet and special newsreader software. Over the years,
      the number of newsgroups has grown to the thousands, hosted all
      over the world and covering every conceivable topic.

      Google Groups contains the world's most comprehensive archive of
      postings to Usenet, dating back to 1981.  Google Groups eliminates
      the need for newsreading software and lets you search this archive
      in the same way you would search HTML pages on the Internet. You
      can also use Google Groups to post your own comments to an existing
      Usenet newsgroup.

   For more technical information about Usenet, see Internet Requests For
   Comments (RFCs) Nos. 977, 1036, and 2980 (available from

   If Google wishes to remove the message in question from Google's
   archive of Usenet, then that is obviously within Google's power to do,
   but I do not see how I would perform that action myself.

			      IV.  Conclusion

   Google Groups strives to "eliminate[] the need for newsreading
   software" (see "What is a Usenet Newsgroup?", above), but it clearly
   fails to do so in those situations in which Google chooses not to
   archive one of the messages that is available on Usenet.  The value of
   Google Groups to your customers depends on you not omitting messages
   from your archive when there is no good reason to do so.  

   I have long been a user of Google Groups and its predecessor,
   DejaNews.  They have been of great value to me and to much of the
   computer science community.  I hope you will not diminish the value of
   the archive by eliminating an informative post about a high-profile
   legal case that is of significant interest to that community and to
   the wider internet community.

   Thank you for your understanding.

   Yours truly,

   Al Petrofsky
   Voice: 650-520-0626
   3618 Alameda Apt 5
   Menlo Park CA 94025


   From: Al Petrofsky <>
   Subject: Re: [#130236897] Google Groups Post
   Date: Tue, 3 Apr 2007 10:05:57 -0700

   Google Team,

   In your email last week, you stated that if I took no action by
   March 30, you would remove from your servers a copy of a message I
   posted to Usenet.

   I am pleased to see that you appear not to have done so.  Is this
   because you have concluded that there is no reason to remove the
   content, or are you just running behind?

   In any event, I would appreciate it if you would forward to me a
   copy of the notification you received, because it appears that
   whoever sent it to you does not know how to reach me directly.  I
   have not received any notice from anyone (other than your
   second-hand notice) claiming that I violated any court order by
   publishing the information in question on Usenet and on my website.

   Thank you for your cooperation.

   Yours truly,

   Al Petrofsky


   Date: Tue, 03 Apr 2007 16:53:03 -0700
   To: "Al Petrofsky" <>
   Subject: Re: [#130236897] Google Groups Post

   Hi Al,

   Thank you for your reply. We have not received a formal request for
   removal of the posting, only a notice from a third party.  Until we
   receive such a formal request, we will not remove the post.  Thanks for
   your understanding.

   The Google Team


The materials and information included in this review are not to be used 
for any other purpose other than private study, research or criticism.

Electronic mail:			       WorldWideWeb: