for producing source code two years too late.
The latest motion in its ongoing lawsuit against IBM claims Big Blue released source code on Aug. 11 -- two years after the discovery phase of the trial began -- which Compuware lawyers
said was necessary to prove its case.
Compuware filed suit
against Big Blue in March 2002, accusing it of pilfering source code from its mainframe
software technology, File-AID and Abend-AID, and using it for its own
mainframe products, File Manager and Fault Analyzer. Compuware also
contends IBM is using its dominance in mainframes to stifle competition in the
software tools market.
As part of the motion, the company wants the judge to grant a default in favor of
Compuware. At the very least, lawyers argue, Compuware should get reimbursed for
the thousands of man hours spent taking depositions and drafting reports to
support its case.
Compuware lawyers also claimed that pre-version 1 File Manager source code was discovered in areas IBM officials had previously sworn under oath during depositions as having already checked.
Compuware lawyers said the new evidence will take thousands of hours to
review and analyze; the case will also incur millions of dollars to re-take depositions and draft up new reports, they added. Even more damaging, the document states, is that IBM used the lack of evidence as its basis for defeating a preliminary
injunction last year, according to a copy of the motion obtained by
internetnews.com. This would have halted IBM's sales of File Manager
and Fault Analyzer.
"In startling contrast to numerous sworn statements by its employees and
lawyers, IBM has suddenly found critical source code more than two years
after the court ordered IBM to produce that code," said Thomas Costello,
Jr., Compuware general counsel, in a statement Wednesday. "Introducing this
evidence more than two years after the court requested it and less than 90
days before the scheduled start of the trial is nothing but a last-ditch
attempt to sandbag Compuware with additional burdens and delays."
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Tim Breuer, an IBM spokesperson, said the company has been diligently
searching for all versions of the source code requested by Compuware, and
promptly forwarded the code when found. IBM officials think there are other
reasons for the emergency motion.
"Compuware's motion is a litigation tactic designed to draw attention away
from the fact that the materials located and produced by IBM found that
Compuware's trade secret and claims are without merit," he said.
"IBM intends to respond to Compuware's motion in due course and is confident
that -- like any other Compuware motions in this case, including Compuware's
motion for a preliminary injunction, which was denied in 2003 -- Compuware's
latest motion will also be denied."
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