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

The allegation is that during a visit to Winsopia in March 2019, Mr Bendich, a developer at LzLabs, was permitted by Winsopia to use its mainframe, in breach of the ICA.

Mr Bendich did not provide a witness statement or give oral evidence. His email of 24 March 2019 describes his visit to Winsopia, during which he described how GTF traces were run on the Winsopia mainframe and compared with similar traces on the SDM:

“GTF (the Generalized Trace Facility) will simply stop after a while, even if you give it plenty of disk space…

Each load module is created from COBOL source code. COBOL's implementation requires each produced load module to include IBM-copyrighted run-time code (CSECTs). By our Code of Conduct, this code is not allowed to enter LzLabs. Therefore, if we want to analyze these traces at LzLabs, we must reliably remove these instructions from the trace. Because the hardware allows only one range, this removal must be performed after the trace is obtained.

The instruction traces also contain IBM-copyrighted DB2 code, some of which resides in the home address space, and some of which resides in the DBM1 address space. I believe the code in the DBM1 address space can be pre-filtered by a suitable SLIP option. We didn't try to do this. With the post-processing software i developed while at Winsopia (see below), it's easy to remove these instructions.”

Professor Weissman concludes from Mr Bendich’s email that he ran GTF traces using the Winsopia mainframe. Mr Stephens agrees with Professor Weissman that Mr Bendich was shown the GTF trace output, and appears to have written a C program to help ‘scrub’ it, but that neither of these would necessarily require access to a mainframe. Neither Professor Weissman nor Mr Stephens were able to find any datasets or user credentials disclosed on the zPDT server that indicated that Mr Bendich had access to the IBM Mainframe.

Mr Bendich sent an email dated 3 May 2019 to Mr Hedley in which he gave an account of his visit to Winsopia, suggesting that the GTF traces might have been run on the mainframe by Mr Maddison of Winsopia, rather than Mr Bendich:

“Bob Maddison, a Winsopia employee, took GTF traces from the mainframe, put them on the thumb drive, and handed it to me so that i could transfer them onto the NUC. I wrote a lot of code which stayed on the Winsopia NUC. I used this code to process the traces, mostly to eliminate extraneous information, including all IBM-written code (see included e-mail, below). None of this code ever left Winsopia. None of the traces, processed or otherwise, ever left Winsopia.”

In cross-examination Professor Weissman fairly accepted that, having regard to the above email, it is possible that Mr Maddison, rather than Mr Bendich, ran the GTF trace on the mainframe.

The evidence is not clear on this issue. It is unfortunate that Mr Bendich did not provide any witness evidence, which prevented IBM from having an opportunity to challenge it. On balance, I am not satisfied that this allegation is established.