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DaimlerChrysler Motion to Strike - as text
Monday, July 19 2004 @ 07:19 PM EDT

Here's DaimlerChrysler's Motion to Strike Certain Paragraphs of the Affidavit of William Broderick as text. If all the paragraphs they are requesting be struck, there is nothing of substance left. To verify that for yourself, here is the Broderick Affidavit.

********************************

STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND

____________________________

THE SCO GROUP, INC.,

Plaintiff,

vs.

DAIMLERCHRYSLER CORPORATION,

Defendant.

____________________________

Civil Action No. 04-056587-CKB

Honorable Rae Lee Chabot

____________________________

Joel H. Serlin (P20224)
Barry M. Rosenbaum (P26487)
SEYBURN, KAHN, GINN, BESS AND
SERLIN, P.C.
Attorneys for SCO
[address, phone]

James P. Feeney (P13335)
Thomas S. Bishoff (P53753)
Stephen L. Tupper (P53918)
DYKEMA GOSSETT PLLC
Attorneys for DaimlerChrysler Corporation
[address, phone]

____________________________

DAIMLERCHRYSLER CORPORATION'S MOTION TO STRIKE CERTAIN
PARAGRAPHS OF THE AFFIDAVIT OF WILLIAM BRODERICK

_____________________________

DaimlerChrysler Corporation ("DCC"), through its counsel, Dykema Gossett PLLC, submits this motion to strike Paragraphs 8, 10-26, 28, 35, 44-45, 56-57, 59 and 62-65 of the Affidavit of William Broderick ("Broderick Affidavit") for failure to comply with MCR 2.119(B)(1) and MCR 2.116(G)(6) because the statements contained therein are not within the personal knowledge of the affiant.

In support of this Motion, DCC relies upon the facts and law set forth in its Memorandum of Law in Support of Motion to Strike Certain Paragraphs of the Affidavit of William Broderick, filed contemporaneously herewith, and its exhibits, the pleadings and other documents on file with the Court, and all matters of which the Court may take judicial notice.

WHEREFORE, Defendant DaimlerChrysler Corporation respectfully requests that this Court grant this Motion and enter an order, pursuant to MCR 2.119(B)(1) and MCR 2.116(G)(6) striking Paragraphs 8, 10-26, 28, 35, 44-45, 56-57, 59 and 62-65 of the Broderick Affidavit from the record.

Dated: June 30, 2004

Respectfully Submitted,

DYKEMA GOSSETT PLLC
______[signature]________
James P. Feeney (P13335)
Thomas S. Bishoff (P53753)
Stephen L. Tupper (P53918)

[address, phone]
Attorneys for Defendant
DaimlerChrysler Corporation

Of counsel

WILMER CUTLER PICKERING HALE AND DORR LLP
Mark G. Matuschak
Michelle D. Miller
[address, phone]

Robin L. Alperstein
[address, phone]


  


DaimlerChrysler Motion to Strike - as text | 54 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Misteaks Go HERE
Authored by: Weeble on Monday, July 19 2004 @ 07:47 PM EDT
So PJ can find 'em.

---
MS Windows doesn't HAVE security holes--it IS a security hole.

[ Reply to This | # ]

URL's Go Here
Authored by: Weeble on Monday, July 19 2004 @ 07:48 PM EDT
So's WE can find 'em.

---
MS Windows doesn't HAVE security holes--it IS a security hole.

[ Reply to This | # ]

OT Threads, Trolls, Astroturfing, Banana Peel Jokes and Orders to PJ Go HERE
Authored by: Weeble on Monday, July 19 2004 @ 07:50 PM EDT
So we can ignore 'em.

---
MS Windows doesn't HAVE security holes--it IS a security hole.

[ Reply to This | # ]

DaimlerChrysler Motion to Strike - as text
Authored by: brian on Monday, July 19 2004 @ 08:34 PM EDT
I just read the memo in support of this motion and it
reads like good prose...Of particular intrest is the
nailing of the SCO name shell game. I knew it would bite
them in the backside but really expected Novell to pull it
out not DC. There is no way SCOX can ever say it was a
party to the CC(Crysler Corporation)-AT&T contract. No
employee at SCO now was around then so the motion to
strike should go IMO (IANAL and all). After the flurry of
motions shoveled by SCO recently, it is a breath of fresh
air to read something as consise and deadly to SCO's
position as this motion.

B.

---
#ifndef IANAL
#define IANAL
#endif

[ Reply to This | # ]

Wow - quite a move
Authored by: Kevin on Monday, July 19 2004 @ 08:38 PM EDT
Here all of us, even PJ, were discussing how Daimler would
address Broderick's arguments - and not a one of us foresaw
that DC's legal team would respond, not only by rebutting
the arguments, but by impeaching the witness.

Absolutely brilliant!

---
73 de ke9tv/2, Kevin (P.S. My surname is not McBride!)

[ Reply to This | # ]

Rules cited
Authored by: Anonymous on Monday, July 19 2004 @ 11:04 PM EDT
From DC: "2.119(B)(1) and MCR 2.116(G)(6)"

The text of these reads


2.119(B)(1) says
~~~~~~~~~~~

(B) Form of Affidavits.

(1) If an affidavit is filed in support of or in opposition to a motion, it
must:

(a) be made on personal knowledge;

(b) state with particularity facts admissible as evidence establishing or
denying the grounds stated in the motion; and

(c) show affirmatively that the affiant, if sworn as a witness, can testify
competently to the facts stated in the affidavit.


2.116(G)(6)
~~~~~~~~
(6) Affidavits, depositions, admissions, and documentary evidence offered in
support of or in opposition to a motion based on subrule (C)(1)-(7) or (10)
shall only be considered to the extent that the content or substance would be
admissible as evidence to establish or deny the grounds stated in the motion.

The (C)s
~~~~~~
C(1)-(7) or (10) are:

(C) Grounds. The motion may be based on one or more of these grounds, and must
specify the grounds on which it is based:

(1) The court lacks jurisdiction over the person or property.

(2) The process issued in the action was insufficient.

(3) The service of process was insufficient.

(4) The court lacks jurisdiction of the subject matter.

(5) The party asserting the claim lacks the legal capacity to sue.

(6) Another action has been initiated between the same parties involving the
same claim.

(7) The claim is barred because of release, payment, prior judgment, immunity
granted by law, statute of limitations, statute of frauds, an agreement to
arbitrate, infancy or other disability of the moving party, or assignment or
other disposition of the claim before commencement of the action.

...

(10) Except as to the amount of damages, there is no genuine issue as to any
material fact, and the moving party is entitled to judgment or partial judgment
as a matter of law.


Quatermass

[ Reply to This | # ]

Brodderick Affidavit without the selected portions
Authored by: urzumph on Tuesday, July 20 2004 @ 03:31 AM EDT
I found this a handy aide to me, to see what was left after you removed the
selected pieces.

AFFIDAVIT OF WILLIAM BRODERICK

WILLIAM BRODERICK, being duly sworn, deposes and says:

1. I am the Director of Software Licensing at the SCO Group, Inc.
("SCO"), and I submit this affidavit based on my personal knowledge
and in opposition to DaimlerChrysler Corporation's ("Daimler") Motion
for Summary Disposition. If sworn as a witness, I can testify competently to the
facts stated herein.

2. I have been employed by SCO as the Director of Software Licensing since
May 2001. I have been involved in sales and licensing of the UNIX software for
SCO and its predecessors since 1991. Generally, my responsibilities include
managing all software licensing activities, including reviewing and monitoring
licensees' compliance with the obligations of their respective license
agreements.

The License Agreement with Daimler

3. SCO is the exclusive licensor of software licenses for its version of the
UNIX computer operating system.

4. UNIX is a computer operating system that serves as a link between computer
hardware and the various software programs (applications) that run on the
computers.

5. UNIX was originally developed by AT&T Bell Laboratories
("AT&T") and was licensed to various companies, such as
International Business Machines and Hewlett-Packard, Inc., through various
license agreements, for their use in commercial applications.

6. The UNIX license agreements restrict the licensees' use of UNIX and
protect AT&T's retained rights.

7. Through a series of corporate acquisitions, SCO presently owns all right,
title, and interest in and to UNIX and all related license rights.

9. The License Agreement is still in effect and has not been terminated by
any party.

27. SCO claims that, in material respects, Linux is a variant, derivation,
and/or modification of UNIX.

29. SCO believes that Daimler and many other licensees of UNIX have violated
the terms of their license agreements by, among other things, improperly
copying, modifying, using, and distributing UNIX or parts or derivatives of UNIX
in connection with the creation, and use of Linux.

30. SCO has sought assurances and certifications from other 750 licensees of
UNIX regarding their compliance with the terms of their license agreements.

SCO's Requests for Certification of Compliance with the License Agreement
31. On December 18, 2003, I wrote to the Chief Executive Officer of Daimler
requesting assurances and certifications from Daimler regarding the computers
subject to the License Agreement and Daimler's full compliance with the
provisions of the License Agreement (the "SCO Letter"). Attached
hereto as Exhibit B is a true and correct copy of the SCO Letter.

32. In accordance with Section 2.05, the SCO Letter requests that Daimler
assure and certify as follows ("the SCO Requests"):

1. You have held, at all time, all parts of the Software Products
(including methods and concepts) in confidence for SCO.

2. You have appropriately notified each employee to whom you have
disclosed the Software Products, and taken steps to assure that such disclosure
was made in confidence and must be kept in confidence by such employee. Please
provide evidence of your compliance with this obligation. This evidence may
include, but not be limited to, nondisclosure agreements, employee policies or
manuals, or other such evidence of compliance.

3. Neither you nor your employees with access to the Software Products
have contributed any software code based on the Software Products for use in
Linux or any other UNIX-based software product.

4. Neither you nor your employees have used any part of the Software
Products directly for others, or allowed any use of the Software Products by
others, including but not limited to use in Linux or any other UNIX-based
software product.

5. Neither you nor your employees have made available to export,
directly or indirectly, any part of the Software Products covered by this
Agreement to any country that is currently prohibited from receiving
supercomputing technology, including Syria, Iran, North Korea, Cuba, and any
other such country, through a distribution under the General Public License for
Linux, or otherwise.

6. Neither you nor your employees have transferred or disposed of,
through contributions to Linux or otherwise, any part of the Software Product.

7. Neither you nor your employees have assigned or purported to assign,
any copyright in the Software Products to the General Public License, or
otherwise for use in Linux or another UNIX-based software product.

See Exhibit B at 2-3.

33. The License Agreement does not provide a time period within which a
certification under Section 2.05 is required to be provided following such a
request.

34. The SCO Letter demanded that Daimler respond to the SCO Requests within 30
days.

36. Daimler failed to provide any assurances or certifications or to otherwise
respond to the SCO Letter within 30 days.

37. On March 3, 2004, 75 days after the SCO Letter was sent, SCO commenced a
lawsuit to enforce its rights under the License Agreement.

38. Section 2.05 and the SCO Requests are the most practical way for SCO to
monitor and ensure compliance with the License Agreement.

39. Daimler's refusal to respond in a timely manner is very prejudicial to
SCO. There are thousands of licensees of UNIX SCO had made good-faith attempts
to contact over 750 of those licensees to secure assurances of their compliance
with the terms of their licenses. If each licensee disregards the request or
unilaterally determines that it may respond whenever it wants, SCO may have to
spend extraordinary resources and potentially commence hundreds of court actions
to enforce its rights. It would be impracticable and costly for SCO to have to
sue each one to obtain basic assurances of performance.

Daimler's Untimely Response to SCO's Request for Certification

40. On April 6, 2004, more than a month after SCO's Complaint was filed and
110 days after the SCO Letter was sent, Norman A. Powell, Senior Management of
Tech Services at Daimler, provided a response to the SCO Letter (the
"Daimler Response"). Attached hereto as Exhibit C is a true and
correct copy of the Daimler Response.

41. The Daimler Response, however, neither responds to the SCO Requests nor
provides the assurances and certifications required by Section 2.05 of the
License Agreement.

42. The Daimler Response does not list any Designated CPUs and does not
certify that Daimler is in full compliance with the provisions of the License
Agreement. The Daimler Response provides only that because Daimler has not used
UNIX for seven years, it does not need to list any Designated CPUs and is in
compliance with the License Agreement. The Daimler Response states:

On behalf of DaimlerChrysler Corporation, I hereby certify that, as of the
date indicated above, there is no DESIGNATED CPU, or any CPU, in which the
SOFTWARE PRODUCT licensed under the subject Agreement is being used. this has
been the case for more than seven years. As a result, no list of the location,
type and serial number of any DESIGNATED CPU is relevant or possible.

I further certify that DaimlerChrysler Corporation's use of the SOFTWARE
PRODUCT licensed under the subject Agreement has been reviewed. No SOFTWARE
PRODUCT licensed under the subject Agreement is being used or has been used for
more than seven years, and as a result DaimlerChrysler Corporation is in full
compliance with the provisions of the subject Agreement.

The terms DESIGNATED CPU, CPU, and SOFTWARE PRODUCT are used in this
letter with the meanings defined in the subject Agreement. I represent that I am
authorized by DaimlerChrysler Corporation to make this certification.

Exhibit C (emphasis added).

43. (omitted in original)

46. Daimler has never sought to terminate the License Agreement by notifying
SCO and certifying that it has ceased using UNIX and has returned or destroyed
all copies of UNIX.

Daimler's Failure to Provide a List of Designated CPUs

47. The Daimler Response states that the list of Designated CPUs is not
relevant. That is incorrect. There are several reasons why the list of
Designated CPUs is important ad relevant, regardless of whether Daimler is still
using UNIX.

48. One of SCO's most important assets is the intellectual property consisting
of its UNIX technology. SCO implements significant measures to ensure that it
can control the dissemination of that intellectual property and utilize it to
generate revenue.

49. One such measure is requiring that licensees identify the specific
computer on which they will install and utilize the UNIX technology.

50. Knowing the specific computers hosting UNIX technology allows SCO to track
the dissemination of its intellectual property.

51. By requiring licensees to identify CPUs running UNIX, the License
Agreement implements another level of control by requiring the licensees
themselves to control the use and dissemination of UNIX technology.

52. In addition, part of the license fee is based on the number of CPUs on
which a licensee installs SCO's UNIX technology. By imposing additional cost per
Designated CPU, the License Agreement further incentivizes licensees to control
the dissemination of UNIX technology.

53. Requiring licensees to track and notify SCO of the Designated CPUs also
permits SCO to properly earn a fair revenue stream from a licensee's use of UNIX
technology.

54. In addition, if a licensee does not know which computers are licensed for
UNIX technology, it will be difficult, if not impossible, for that licensee to
ensure that the technology was properly maintained and controlled, rather than
copied, or transferred, or removed by a departing employee in violation of the
terms of the License Agreement.

55. Requiring licensees to certify the Designated CPUs, even if UNIX
technology is no longer in use, or the formerly Designated CPUs are no longer in
use, allows SCO to track a licensee's prior use, compare it to the permitted use
and paid-for use, and determine if the licensee properly disposed of the UNIX
technology at the time it terminated its use of UNIX.

58. The Daimler Response fails to provide any information about these
Designated CPUs. That failure prevents SCO from determining where the UNIX
technology resided last, whether Daimler properly controlled it or properly
disposed of it, and whether it properly paid for its use.

Daimler's Failure to Certify Compliance with Other Requirements of the
License Agreement

60. The SCO Requests are intended to obtain Daimler's certification of full
compliance with the other provisions of the License Agreement.

61. The SCO Requests are derived from or directly track provisions of the
License Agreement. For example, SCO Requests 1 and 2 directly track the
confidentiality obligations and proposes, but does not demand, what types of
evidence may be available. Requests 3 and 4 track and combine the obligations of
2.01, 2.02, 2.06 and 7.07. Because SCO believes UNIX technology is wrongfully
being used in connection with Linux, it specifically asks Daimler about such
use. Request 5 directly tracks 4.01. Request 6 directly tracks 7.09 and
Request 7 directly tracks 7.08. Because the transfer of UNIX technology to
Linux is relevant, SCO directly asks Daimler about Linux.

66. Daimler's certification that it is not currently using UNIX says nothing
about whether it exported UNIX, whether it assigned UNIX, whether it transferred
UNIX or any derivation of UNIX, or whether it properly maintained the
confidentiality of UNIX and provided the appropriate notification to its
employees regarding these confidentiality obligations.

[ Reply to This | # ]

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