Torvalds hit with SCO Linux lawsuit subpoena

Subpoenas are flying in the high-profile lawsuit between the SCO Group and IBM, as both companies try to buttress their legal claims by turning to third parties for information.

SCO said on Wednesday that it has filed subpoenas with the US District Court in Utah, targeting six different individuals or organisations. Those include Novell; Linus Torvalds, creator of the Linux kernel; Richard Stallman of the Free Software Foundation; Stuart Cohen, CEO of the Open Source Development Labs; and John Horsley, general counsel of Transmeta.

SCO spokesman Blake Stowell said he did not know what the subpoenas asked for, but "I know that some of them have been served."

IBM has also broadened its efforts to respond to the Linux-related lawsuit by asking a federal judge to order SCO to identify illegal source code and serving four other companies with subpoenas of its own.

SCO filed the suit in March, claiming that IBM "contaminated" Linux by illegally incorporating trade secrets inherited from Unix. So far, SCO has listed the names of 591 files in the Linux 2.4 and 2.5 kernels that allegedly contain illicit code but has not been more specific.

IBM's subpoenas were sent on 30 October to BayStar Capital, Deutsche Bank Group, Renaissance Ventures and The Yankee Group, which have indicated they have reason to believe that SCO's claims are legitimate. IBM has cited a 16 October article in The Salt Lake Tribune that reported that Deutsche Bank analyst Brian Skiba visited SCO's headquarters and saw a "near exact duplicate of source code between the Linux 2.4 kernel and [SCO's] Unix System V kernel." In October, BayStar Capital invested $50m in SCO.

In a statement to CNET News.com on Wednesday, IBM said: "It is time for SCO to produce something meaningful. They have been dragging their feet, and it is not clear there is any incentive for SCO to try this in court." IBM filed motions on 3 November and 6 November, asking the court to "issue an order compelling SCO to respond to IBM's interrogatories with specificity and in detail."

SCO's Stowell said his company provided about a million pages of documents in response to IBM's requests. "They are trying to coerce and intimidate," Stowell said, referring to Big Blue's subpoenas. "I think what they're trying to do is that if you're a potential investor in our company or an industry analyst that says anything even remotely favourable toward SCO, you're going to be subpoenaed by IBM."

IBM is not alone in objecting to its adversary's compliance with pretrial discovery requests. A court filing from SCO dated 4 November said IBM failed to produce source code to AIX (IBM's version of Unix) and "all contributions by IBM to Linux." IBM has listed 7,200 potential witnesses on its behalf - primarily employees - and has "failed to properly identify" them by name, SCO charged.

One of SCO's requests includes information about contributions to Linux made by IBM or "anyone under its control" and code and modifications by "Open Source Development Labs, Linus Torvalds, Red Hat or any other entity." IBM had objected to it as unreasonably burdensome and not directly related to the lawsuit.

Both teams of lawyers have appealed to US District Judge Brooke Wells to force the other side to comply with their requests. Wells talked with them on 31 October and has set a status conference for the morning of 21 November.

If the lawyers haven't resolved their differences by then, Wells has scheduled a court hearing for 5 December.

Declan McCullagh writes for CNET News.com