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IBM didn't destroy SCO code evidence, rules judge

Another setback for SCO

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IBM did not destroy crucial evidence in its long-running dispute with The SCO Group, a judge has ruled.

SCO claimed IBM had destroyed materials last year, but the US judge has ruled that the evidence was actually provided to SCO some time ago.

The decision is the latest in a long line of setbacks for SCO, which is claiming that IBM put some material from the Unix operating system into the open source Linux system. SCO owns some intellectual property rights in Unix and is suing for copyright infringement.

SCO is claiming damages that it has said could reach $5bn in its case against IBM. IBM denies SCO's claims and recent rulings in the complicated case have gone IBM's way.

Last summer Magistrate Judge Brooke Wells limited SCO's claims, throwing out 187 of the 294 items on an SCO list of materials misused by IBM. Wells said that the company had not provided sufficient evidence to back its claims, and the decision was subsequently backed by Judge Dale Kimball in a Utah District Court.

Wells has now ruled that SCO's motion claiming "IBM's spoliation of evidence" is denied. SCO had argued that an IBM email ordered programmers to destroy software code, and that IBM had relied on software that belonged to it in developing its system.

According to Groklaw, which has been following the entire case, SCO's Mark James said he accepted that there was in fact not destruction of code but evidence of programmers' reliance on software which itself contained some SCO-owned Unix code in its development of Linux.

IBM said it had not destroyed any code, nor any records of what code was used in the development of Linux. In fact, it said, it had provided exactly that information to SCO. It was contained within a configuration management and version control (CMVC) machine which IBM provided to SCO during discovery.

IBM's lawyer said that a huge amount of time and effort had been expended on putting together that system and providing it to SCO in the discovery part of the trial, but that it appeared that SCO had not even used it, Groklaw said.

SCO then asked the judge to make IBM tell it where in the massive CMVC machine the relevant information was. IBM said it was reluctant to do so, but Wells asked it to reconsider in the spirit of co-operation.

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OUT-LAW.COM is part of international law firm Pinsent Masons.

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