SCO gets deposition OK — with time limit

Lindon-based SCO Group Inc. will get to depose International Business Machines' top executive, but it will not be able to continue changing its legal beef with the computer giant, a federal judge ruled Friday.

U.S. District Judge Dale Kimball ruled that the SCO Group could have four hours — three less than it had asked for — to depose Samuel Palmisano, IBM's chairman, president and chief executive.

SCO has filed a multibillion-dollar lawsuit accusing IBM of violating a license agreement between the companies by placing Unix computer operating system source code into Linux source code. Linux is a kernel core that serves as a base for many free computer operating systems, including those enhanced by contributions from developers worldwide. IBM is one of several companies that have started developing products using Linux.

SCO attorney Sean Eskovitz claimed during an April hearing on the motions that Palmisano's "spearheading, approving and implementing" IBM's Linux strategy occurred when he was vice president in charge of IBM's computer server group. The idea was to move quickly to embrace Linux across IBM's server product line, but Eskovitz said IBM "took the shortcut" of putting elements of Unix into Linux.

IBM argued that the information SCO wants can be obtained from other sources and that "there is nothing unique with Mr. Palmisano's knowledge as to Linux."

SCO wanted a one-day, seven-hour deposition in New York in which SCO could learn the "intents and motive" for IBM's Linux strategy, Eskovitz said.

On Friday, Kimball ruled that "Mr. Palmisano could have unique personal knowledge related to the claims in this action" and gave SCO four hours to depose him.

In the same ruling, also stemming from motions filed in April, Kimball denied a request from SCO to amend its complaint against IBM. As stated in Friday's ruling, SCO argued that it should be allowed to "assert a cause of action for copyright infringement based on IBM's alleged unauthorized use of copyrighted SCO in IBM's AIX for Power products."

SCO argued that it had discovered documents pertaining to an agreement between IBM and SCO's predecessor, Santa Cruz Operation — a relationship SCO alleged resulted in the misappropriation of source code into a product developed by IBM.

Kimball denied the request, stating that "to permit the proposed amendment would expand this already sizable and complex litigation and would serve only to delay its resolution."

Furthermore, he wrote, "SCO has twice amended its complaint during this litigation, and the deadline for seeking leave to further amend has long-since passed." And, he said, the company demonstrated neither "extremely compelling circumstances" nor "good cause" in making its case to amend.

"It appears that SCO — or its predecessor — either knew or should have known about the conduct at issue before it filed its original complaint," Kimball wrote.

The next deadline in the case is Aug. 1, whenIBM is to have provided all discovery pursuant to an order issued April 20.

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