SCO V. IBM - Discovery

Discovery

The discovery portion of the lawsuit lasted several years. The basis for SCO's suit is that any code developed on top of SVRX is a derivative work of SVRX (which would include AIX), and that IBM has publicly admitted to contributing AIX code to the Linux kernel. Since SCO has never seen the AIX code, it has, as part of the discovery process, deposed IBM for the AIX code, so that it can compare AIX code to Linux kernel code. IBM, rejecting SCO's concept of derivative work, has deposed SCO for which lines of code it claims are infringing. SCO has responded that it can't determine which code is infringing until it has had the chance to look at the AIX code.

On December 5, 2003, in the first oral arguments relating to the discovery process, a judge granted IBM's two motions to compel against SCO, and deferred consideration of SCO's motions until later. This gave SCO a 30-day deadline to provide "with specificity" which lines of code in Linux they claim form the basis of their case. This was widely regarded as a first-round victory for IBM.

On June 28, 2006 Judge Brooke Wells granted IBM's motion to strike most of SCO's evidence, citing in part SCO's inability to provide the specificity required by the court:

In December 2003, near the beginning of this case, the court ordered SCO to, "identify and state with specificity the source code(s) that SCO is claiming form the basis of their action against IBM." Even if SCO lacked the code behind methods and concepts at this early stage, SCO could have and should have, at least articulated which methods and concepts formed "the basis of their action against IBM." At a minimum, SCO should have identified the code behind their method and concepts in the final submission pursuant to this original order entered in December 2003 and Judge Kimball’s order entered in July 2005. — (paragraph 30)

SCO appealed to Judge Kimball and asked for a de novo review of Judge Wells' order. On November 29, 2006, Judge Dale Kimball affirmed Judge Wells' order in its entirety.

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