Is SCO grasping at straws?

Steven J. Vaughan-Nichols

Jul. 25, 2006

The SCO Group Inc. is going down swinging. In its recent attempt to breathe life into its IBM lawsuit, the company alleges that IBM destroyed evidence.

Specifically, SCO claimed to the U.S. District Court in Salt Lake City that "Weeks after SCO filed its lawsuit, IBM directed dozens of its Linux developers within its Linux Technology Center and at least ten of its Linux developers outside the Linux Operations Center to delete the AIX and/or Dynix source code from their computers. One IBM Linux developer has admitted to destroying Dynix source code and tests, as well as pre-March 2003 drafts of source code he had written for Linux while referring to Dynix code on his computer."

However, contrary to some reports, SCO has not yet filed a motion for sanctions for spoliation. Or, in ordinary English, the Lindon, Utah-based company has not yet officially brought to the court's attention that IBM destroyed evidence.

Indeed, SCO itself declared in a summation [ ] of the major reasons why the Court shouldn't dismiss many of its case's main points, "SCO intends to raise the issue of IBM's spoliation of evidence before this court at the appropriate time."

What exactly was this AIX and/or Dynix code? When was it destroyed? When did SCO find out about this? These are all questions that SCO has yet to answer.

Linux-Watch has tried to reach SCO for clarification on these points, but has not yet received a reply.

So, should SCO's latest claims be taken seriously?

Michael R. Graham, an IP (intellectual property) attorney and partner with Marshall Gerstein & Borun [ ], a Chicago based IP specialty law firm, isn't impressed. "It appears from the summary of SCO's motion that it is grasping for straws in an effort to resurrect the claims the Court recently struck down."

Stephen M. Fronk, an IP attorney and partner with Howard Rice Nemerovski Canady Falk & Rabkin [ ] in San Francisco, agreed. "My initial thoughts are that SCO's motion is a desperate attempt to breathe life into a lawsuit that slowly has been dying on the vine."

After all, Fronk continued, "Last month, in a strongly-worded order [ ], Judge Wells dismissed a large portion of SCO's case because SCO had repeatedly failed to provide sufficient details concerning the SCO code that IBM allegedly unlawfully contributed to the Linux developer community. In response, SCO is now asking the court to rule that SCO's inability to provide such details is IBM's fault because IBM allegedly directed its developers to spoil evidence of such conduct."

In the past, SCO had frequently claimed that it already had such evidence. On December 22nd, 2005, the Unix company finally presented to the Court [,1895,1904737,00.asp ] 217 areas in which IBM, or its subsidiary Sequent, had allegedly violated its SCO Unix licensing contracts.

As Graham observed, "It is not surprising that SCO might make a claim that relevant code may have been erased, but the timing (after the court has ruled that SCO's failure to indicate specific infringing code after 3 years of litigation) was egregious enough that the related counts should be dismissed) suggests this is a desperate attempt to save its case rather than a meritorious claim."

But, he continued, "The immediate question must be: if SCO was aware it could not specify the code because IBM directed developers to erase it, why did it not raise this issue more clearly or energetically in an effort to withstand the dismissal motion?"

In any case, Fronk continued, "SCO is now asking the court to rule that SCO's inability to provide such details is IBM's fault because IBM allegedly directed its developers to spoil evidence of such conduct. If, in fact, IBM engaged in such conduct and Linux, as a result, contains SCO proprietary code, SCO should be able to point with specificity to that portion of the Linux code regardless of whether IBM destroyed the trail of crumbs."

Of course, if IBM did destroy evidence, it would be a serious matter.

Allonn E. Levy, intellectual property litigator with Hopkins & Carley [ ] in San Jose, Calif. explained, "If SCO is really able to show that IBM destroyed evidence, the Court may order very serious sanctions against IBM. Federal courts have led the way in so called 'spoilation' cases involving electronic evidence, putting an affirmative burden on litigants to preserve electronic evidence when they know a lawsuit is even 'contemplated.'"

So, what could happen to IBM if SCO were able to prove that it had destroyed evidence?

"Some Federal District Courts have imposed heavy sanctions where they have found that litigants have failed to preserve electronic evidence," said Levy.

"For example, the District court could deem a particular issue 'established' for purposes of the trial or give the jury a negative instruction that could hurt IBM during the trial. The thinking is that 'evidence' or 'issue' sanctions are more appropriate than normal money sanctions because the destruction of evidence permanently changes the picture presented to the jury."

"That said, SCO has been dealt set back after set back in this case and the related SCO cases. At this point, many view SCO's claims with a healthy dose of skepticism," Levy concluded.

Noting that SCO has once more made claims without publicly presenting any evidence, Graham observed that, "Without knowing more, [I] cannot speak to the substance of the motion or the claims. However, it does strike him as ill-timed if not cynical.

Copyright 2006