An attorney for The SCO Group Inc. told a federal judge Tuesday that a magistrate judge wrongly tossed out about two-thirds of its legal claims against International Business Machines Corp. in June.
In a hearing before Judge Dale Kimball, SCO attorney Stuart Singer said Magistrate Brooke Wells' action resulted in more than 180 claims being "dismissed without a day in court." Stuart also contended that SCO had not been "sandbagging" information and had followed previous court orders in the case.
"We are not holding back anything," Singer said.
Lindon-based SCO is seeking $5 billion from IBM, contending that IBM violated an agreement by putting some of SCO's Unix computer operating system source code into freely distributed Linux. Wells ruled June 28 that SCO had not provided IBM with specific information about the claims she threw out and that SCO had "willfully failed to comply" with court orders to show IBM which lines of source code in Linux were allegedly misappropriated from Unix.
Singer said Tuesday that SCO had been "as forthcoming and complete as possible," but information about what was in the minds of IBM developers when the alleged misappropriation occurred are "behind an IBM firewall" and unavailable to SCO.
Singer contended that Wells should have ruled on the individual items rather than treat them in a group and that the court still could eliminate claims on individual items before trial if they are not specific enough.
He added that "there's simply no evidence" that SCO intentionally violated court orders requiring SCO to provide details about the claims.
But IBM attorney David Marriott said that despite several court orders requiring it, SCO had failed to provide system, version and line information about the source code in question, except for three examples in which the lines were identified. IBM, he said, has been trying to get those types of specifics from SCO ever since the suit was filed in March 2003.
Marriott said SCO argues that "IBM knows what it did." But Marriott said the amount of source code information at issue in the case was akin to a haystack. "The haystack is enormous," he said, adding that IBM is being asked to find "undefined needles."
Kimball took the matter under advisement, but he also expressed doubt — especially after talking to the attorneys — that the trial can start as scheduled on Feb. 26. Work prior to trial includes arguments on 10 motions and allowing the two sides to deal with the ramifications of the rulings on them.
"I think we're going to lose it," Kimball said of the Feb. 26 start. "I don't think there's any doubt about that."
Another matter complicating the process is a legal battle between SCO and Novell Inc. over the ownership of copyrights to Unix and UnixWare. Asked by Kimball, both attorneys said it might be better to have the SCO vs. IBM trial after SCO's legal issues with Novell are resolved because of potential bearings on elements of the IBM case.
E-mail: bwallace@desnews.com