SCO Group Inc has accused IBM Corp of destroying evidence that it could have used to support its case in the long-running breach-of-contract and copyright lawsuit between the two companies.
The claim was made in a recent court filing by the Lindon, Utah-based Unix vendor appealing against a June court ruling granting IBM’s motion to throw out 187 of SCO’s 293 claimed items of evidence.
Weeks after SCO filed its lawsuit, IBM directed ‘dozens’ of its Linux developers within its LTC [Linux Technology Center] and at least ten of its Linux developers outside… to delete the AIX and/or Dynix source code from their computers, wrote SCO describing what it called the spoliation of evidence.
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, it added.
SCO’s court filing also revealed that it had raised the claim before in a March court filing that was filed under seal but it was ignored by Magistrate Judge Brooke Wells, who is handling the discovery portion of the case.
At argument, however, the Magistrate Judge believed that this issue was irrelevant to the matter before the court, and did not address it in the Order, SCO’s filing continued. SCO intends to raise the issue of IBM’s spoliation of evidence before this Court at the appropriate time, it added. However, in light of IBM’s present Motion, the issue of IBM’s spoliation of evidence has become immediately relevant and the Magistrate Judge should have considered it.
IBM has not responded, either via court filing, or in public, to SCO’s claim.
SCO’s claim was made in an objection filed with Judge Dale Kimball against Judge Wells’ recent finding that SCO had willfully failed to comply with the orders of the court by not detailing its evidence against IBM.
SCO’s arguments are akin to SCO telling IBM ‘sorry we are not going to tell you what you did wrong because you already know’, wrote Judge Wells, in that order, adding that she had found that the company was acting willfully to hide its evidence from, and prejudice, IBM. In the view of the court it is almost like SCO sought to hide its case until the ninth inning in hopes of gaining an unfair advantage despite being repeatedly told to put ‘all the evidence… on the table’.
SCO has asked Judge Kimball to overturn that decision, based on its claims that it did, in fact, comply with the court’s requirements, and that Judge Wells erred in finding that SCO willfully failed to comply with the court’s orders, failed to properly consider whether SCO’s disclosures were adequate, and failed to require IBM to establish prejudice, among other things.
Judge Kimball will come to his own decision regarding SCO’s request, but Judge Wells appeared to have warned the company against an appeal in her original order by applying SCO’s own evidence requirements.
Given SCO’s track record in this case, the court is certain that if IBM had simply provided line information without version file information for ‘methods’, SCO would have filed motions to compel complaining about SCO’s lack of specificity, she wrote. The court cannot find any reason why SCO should not be held to the same level of accountability that SCO held IBM to. Thus, SCO should have supplied not only line but version and file information for whatever claims form the basis of SCO’s case against IBM.