Please notice this is the only paragraph in the paragraphs 74 to 86 set of paragraphs to which IBM makes a clear and unqualified denial. However, in this paragraph, SCO-Caldera is accusing IBM of misappropriation of UNIX code, methods or concepts.
When, as in paragraph 86, SCO accuses IBM of wrongdoing, IBM seems to have no lack of information that prevents IBM from denying the accusation. However, when SCO alleges something that goes against the Linux kernel, GNU/Linux, the Linux community, and so forth IBM suddenly starts to sound like the Sergeant Schultz character from Hogan's Heroes and suddenly knows nothing -- despite clear and convincing evidence that IBM has plenty of information about these allegations at its fingertips.
Interestingly, while IBM let the anti-Linux accusations in SCO-Caldera's Complaint remain hanging, it managed to deny some of the allegations of IBM misdoings. Although poorly pled in the Complaint and poorly pled in the Answer, IBM does manage in its reply to Complaint paragraph 91 to deny that IBM misappropriated the confidential and proprietary information from SCO in Project Monterey and that IBM misused its access to the UNIX Software Code.
IBM's Scheme
Complaint: 91. Among other actions, IBM misappropriated the confidential and proprietary information from SCO in Project Monterey. IBM thereafter misused its access to the UNIX Software Code. On or about August 17, 2000, IBM and Red Hat Inc. issued a joint press release through M2 Presswire announcing, inter alia, as follows:
"IBM today announced a global agreement that enables Red Hat, Inc. to bundle IBM's Linux-based software.
IBM said it would contribute more than 100 printer drivers to the open source community. With these announcements, IBM is making it easier for customers to deploy e-business applications on Linux using a growing selection of hardware and software to meet their needs. The announcements are the latest initiative in IBM's continuing strategy to embrace Linux across its entire product and services portfolio.
Helping build the open standard, IBM has been working closely with the open source community, contributing technologies and resources."
Answer: [IBM] Denies the averments of paragraph 91, except refers to the referenced document for its contents.
- Parsing Complaint and Answer Paragraph 91
Parsing Complaint paragraph 91, it alleges:
(a) IBM misappropriated the confidential information from SCO in Project Monterey.
(b) IBM misappropriated the proprietary information from SCO in Project Monterey.
(c) IBM thereafter misused its access to the UNIX Software Code.
(d) The subject press release issued on or about August 17, 2000, was issued jointly by IBM and Red Hat Inc.
(e) The said press release issued on or about August 17, 2000, was issued through M2 Presswire.
(f) On or about August 17, 2000, IBM issued a press release.
(g) IBM announced a global agreement that enables Red Hat, Inc. to bundle IBM's Linux-based software.
(h) IBM has an agreement that enables Red Hat, Inc. to bundle IBM's Linux-based software.
(i) IBM said it would contribute more than 100 printer drivers to the open source community.
(j) IBM is making it easier for customers to deploy e-business applications on Linux
(k) There is a growing selection of hardware upon which Linux-based e-business applications can be deployed
(l) There is a growing selection of software upon which Linux-based e-business applications can be deployed.
(m) IBM has an initiative to embrace Linux across its entire product and services portfolio.
(n) IBM has a continuing strategy to embrace Linux across its entire product and services portfolio.
As mentioned in the paragraph 74 discussion above, the SCO-Caldera Complaint should have been drafted to set forth each one of these matters of fact as a separate item -- either by placing each item in a uniquely numbered paragraph or by setting the items apart in a list similar to the above parsing. Paragraph 91 is yet another example of how poorly SCO-Caldera pled its Complaint.
Also, the subject press release should have been attached to the Complaint as an exhibit in support of the allegations. It was not so attached.
As discussed with Complaint paragraph 74, IBM could have and should have asked the trial court judge to require SCO-Caldera to file a properly drafted complaint. However, IBM did not do that and thereby waived its right and opportunity to have a properly drafted complaint for IBM to answer.
Note: Often litigants will try to get away with stuff by blaming their lawyers. However, that is an impermissible dodge.
Generally a litigant is bound by his/her/its lawyer's actions when represented by a lawyer. What the lawyer does is binding on the litigant -- unless the lawyer's action is so egregious that it amounts to incompetent counsel or is done against the instructions of the litigant.
The point here is that both IBM and SCO are responsible for any falsehoods presented to the Court in SCO-Caldera's Complaint and IBM's Answer.
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Having waived its right to have a better pled Complaint presented to it for responding, IBM obliged itself to honestly and completely answer all the fact-matter allegations set forth in SCO-Caldera's poorly pled Complaint paragraph 91. However, IBM does not do that. Paragraph 91 is another example of lousy lawyering on both sides!
There are different ways to construe IBM's answer to paragraph 91 that it [d]enies the averments of paragraph 91, except refers to the referenced document for its contents.
In the light most favorable to IBM, you could view that answer to paragraph 91 as stating that IBM denies that:
(a) IBM misappropriated the confidential information from SCO in Project Monterey
(b) IBM misappropriated the proprietary information from SCO in Project Monterey
(c) IBM thereafter misused its access to the UNIX Software Code
and then construe the reference to the document (the August 2003) press release as an admission to the remaining parsed allegations, (f) through (n).
Nevertheless, that leaves parsed parts (d) and (e) in a sort of Limbo. A literal construction of IBM's answer to paragraph 91 would seem to imply that IBM denies:
(d) The subject press release issued on or about August 17, 2000, was issued jointly by IBM and Red Hat Inc.
(e) The said press release issued on or about August 17, 2000, was issued through M2 Presswire.
The point here is that viewed in a light favorable to IBM, its answer to paragraph 91 is merely poorly drafted. If you view IBM's answer to paragraph 91 without giving IBM the benefit of any doubts, that answer is incomplete and dishonest -- because in that view, IBM is denying that the said press release was jointly issued by IBM and Red Hat and that it was issued through MS Presswire.
For your information, we found what appears to be the press release mentioned in paragraph 91. That press release, IBM broadens Linux support -- Red Hat and IBM Collaborate on e-Business Software Solutions, is on the IBM Web site and is dated 15 August 2000. There is a link to it in the Resources section at the end of this article.
