HT-2021-000363 - [2025] EWHC 532 (TCC)

Db2 is a relational database software product that provides a database management system in which customers can store information. It is common ground that Db2 versions 10, 11 and 12 were ICA Programs supplied by IBM to Winsopia for use with z/OS.

The Db2 catalog tables are a collection of database tables that are created as part of the Db2 installation process and keep track of objects and resources available within a Db2 system. The Db2 materials include: (i) data provided with the Db2 product or created during installation of Db2 which is identified by the IBMREQD field; (ii) stored procedures in the form of Structured Query Language (“SQL”) statements, which allow programmers to write scripts and internal procedures that are stored in the Db2 catalog; (iii) default parameters and values in the table definitions; and (iv) IBM supplied packages and plans stored as records in the Db2 catalog tables. Mr Bray agreed in cross-examination that a Db2 catalog will always contain some material supplied by IBM.

CPX software copies information from the Db2 catalog when migrating Db2 data to the SDM. The evidence of Mr Palmer and Mr Bray was that Winsopia developed a set of filters so that, when migrating customer metadata and records stored in a Db2 relational database, CPX would exclude any information in the Db2 tables that might relate to IBM or other third-party products.

The experts agreed in their second joint statement that, at least from April 2016, CPX software included filters that were designed to exclude IBM provided objects, such as objects with the IBMREQD field set, when copying information from the Db2 catalog.

IBM’s case is that contemporaneous email exchanges show that, prior to April 2016, CPX filters were ineffective in excluding all ICA Programs and other IBM proprietary material when exporting data to the SDM.

On 27 April 2016 Mr Palmer of Winsopia sent an email to Mr Bray and Mr Rastall at Winsopia, and to Mr Garfield and Mr Wehrli at LzLabs, setting out discussion items for a DMA (CPX) meeting.

In response, Mr Bray sent an email to Mr Palmer, stating:

“To add to your list, there is a changed set of Winsopia DB2 Catalog Table Filters! Previously we were not excluding some IBM tables/programs.”

Mr Palmer updated the items for discussion at the meeting, including the following:

“… DB2 unload JCL catalog table filter syntax changes are required due to some IBM tables not being excluded from the migration payload. These changes will have to be identified and incorporated into the DMA.”

Mr Bray confirmed in cross-examination that before he identified the above issue and created the updated list of filters, the Db2 tables were not filtered and therefore they would be transferred from Winsopia to LzLabs whenever Db2 catalogs were exported.

The Db2 catalog tables contained data that was part of the Db2 supplied program and/or generated by the Db2 program on installation. Such categories of data were component parts of Db2 and constituted an ICA Program for the purpose of the ICA. Further, data stored in the Db2 catalog tables included IBM proprietary material.

It is clear that, when the CPX filter was first introduced, it was ineffective in excluding IBM data in the Db2 catalog tables from the materials intended to be exported to the SDM. However, as the defendants submit, there is no evidence that any such materials were actually transferred outside Winsopia. Mr Swanson confirmed in cross-examination that the experts searched for, but were unable to find, any evidence of any transfer of Db2 catalog resources from Winsopia prior to April 2016.

IBM relies on an email dated 30 March 2016, sent by Mr Palmer to Mr Rastall and Mr Bray at Winsopia and to LzLabs, referring to the migration of a package, including Db2 catalog data. However, the email expressly refers to such data being subject to legal approval to exclude all IBM proprietary rows. This suggests that, at least in this particular case, a manual review was used to remove IBM proprietary data, rather than any reliance on the CPX filter. It does not indicate that IBM Db2 material was sent by Winsopia to LzLabs.

It follows that IBM have not established any breach of the ICA in respect of this item.