Here's SCO's Memorandum of Law in Opposition to Defendant DaimlerChrysler Corporation's Motion to Strike, as text. Here's DaimlerChrysler's motion. It was all for nothing, though, because the court tossed SCO's substantive claims.
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SCO_MEMORANDUM
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 Plaintiff
2000 Town Center, Suite 1500
Southfield, MI 48075
(248) 353-7620 |
James P., Feeney (P13335)
Thomas S. Bishoff (P53753)
Stephen L. Tupper (P53918)
DYKEMA GOSSETT PLLC
Attorneys for Defendant
39577 Woodward Ave., Ste. 300
Bloomfield Hills, MI 48304-2820
(248) 203-0700 |
THE SCO GROUP, INC.'S MEMORANDUM OF LAW
IN OPPOSITION TO DEFENDANT
DAIMLERCHRYSLER CORPORATION'S MOTION TO STRIKE
[stamped RECEIVED FOR FILING
OAKLAND COUNTY CITY
CLERK
04 JUL 16 P3:17]
TABLE OF CONTENTS
| TABLE OF AUTHORITIES |
i
|
| PRELIMINARY STATEMENT. |
2
|
| ARGUMENT |
3
|
I. Mr. Broderick's June 15
Affidavit
is Properly Based on Personal Knowledge
and Constitutes Admissible Evidence |
3
|
II. Assuming Arguendo that the
June 15
Affidavit Lacks a Sufficient Basis for Its
Description of Daimler's Conduct, the
Absence of Discovery Regarding the Manner
In Which Daimler Used and Modified UNIX
System V Source Code Should Preclude
Summary Disposition |
9
|
| CONCLUSION |
11
|
TABLE OF AUTHORITIES
STATE CASES
Baker
v. DEC International,
218 Mich. App. 248 553 N.W.2d 667 (1996),
aff'd in part and rev'd in part
on
other grounds,
458 Mich. 247, 580 N.W.2d 894 (1998) |
3, 9
|
Borum
v. Grand Trunk Western Railroad,
No. 204332, 1999 WL 33454997
(Mich. Ct. App. Feb. 5, 1999), appeal
denied, 462 Mich. 852,
611 N.W.2d 799 (1999) |
8
|
Hubka.
v. Pennfield Township,
197 Mich. App. 177, 494 N.W.2d 800 (1992),
aff'd in part and rev'd in part
on
other grounds,
443 Mich. 864, 504 N.W.2d 183 (1993) |
3, 9
|
J.L.
Dumas & Co., v. Forty-Nine
Highland Ltd. Dividend, No. 186016,
1996 WL 33357155 (Mich. Ct. App. Sept. 27, 1996) |
6, 7
|
| Jones
v. Keene, No 229281,
2002 WL 14827 (Mich. Ct App. July 9, 2002) |
8
|
Lease
Corp. v. Milazzo Enters., Inc.,
No. 214273, 2001 WL 733450
(Mich. Ct. App. Feb. 20, 2001) |
8
|
Midland
Mut. Life Ins. v. Robison,
No. 185868, 1997 WL 33353689
(Mich. Ct. App. Feb. 21, 1997) |
3
|
Regents
of the Univ. of Mich. v.
State Farm Mut. Ins. Co., 250 Mich. App. 719,
650 N.W.2d 129 (2002) |
3
|
Smith
v. City of Detroit, No.,
238927, 2003 WL 21995211
(Mich. Ct. App. Aug. 21, 2003) |
3
|
STATE STATUTES
| MCR 2.116(C)(10) |
3
|
| MCR 2.116 (G)(5) |
3
|
| MCR 2.116 (G)(6) |
3
|
| MCR 2.116 (H) |
10
|
| MCR 2.119 (B)(1) |
3
|
| MRE 801 (d)(2) |
7
|
| MRE 803 (6) |
5
|
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 Plaintiff
2000 Town Center, Suite 1500
Southfield, MI 48075
(248) 353-7620 |
James P., Feeney (P13335)
Thomas S. Bishoff (P53753)
Stephen L. Tupper (P53918)
DYKEMA GOSSETT PLLC
Attorneys for Defendant
39577 Woodward Ave., Ste. 300
Bloomfield Hills, MI 48304-2820
(248) 203-0700 |
THE SCO GROUP, INC.'S MEMORANDUM OF LAW
IN OPPOSITION TO DEFENDANT
DAIMLERCHRYSLER CORPORATION'S MOTION TO STRIKE
Plaintiff The SCO Group, Inc. ("SCO") respectfully submits this
memorandum of law, along with the Supplemental Affidavit of William
Broderick,
sworn to on July 15, 2004, in opposition to defendant DaimlerChrysler
Corporation's
("Daimler") Motion to Strike Certain Paragraphs of the Affidavit of
William Broderick.
PRELIMINARY STATEMENT
Daimler's motion to strike misses the mark. Daimler's motion is
largely
based on the erroneous premise that Mr. Broderick has no personal
knowledge prior to
2001 of the parties' relationship, and, more importantly, of the
Software Agreement,
numbered SOFT-01341, dated September 2, 1988 ("License Agreement"), at
the center of
this case. To the contrary, the initial affidavit submitted by
Mr. Broderick ("June 15
Affidavit") in opposition to Daimler's motion for summary disposition
and the
Supplemental Affidavit of William Broderick, sworn to on July 15, 2004
("Supplemental
Affidavit") submitted herewith, describe in detail Mr. Broderick's
personal involvement
with and responsibility for managing software licensing of UNIX System
V products in
the decade prior to May 2001, as well as his intimate familiarity with
the License
Agreement. Mr. Broderick properly placed before the Court and
described the terms of
Daimler's License Agreement and its Supplements, of which he is the
custodian. Further,
Mr. Broderick properly attested to Daimler's use of Linux and its use
and modification of
UNIX System V source code based on Daimler's own admissions and his own
personal
knowledge of the software products provided to Daimler.
None of Mr. Broderick's statements of the June 15 Affidavit exceeded
the
bounds of his personal knowledge or otherwise failed to meet the
standards of evidence
competent to oppose a motion for summary disposition.
Moreover, to the extent that Daimler's use and modification of UNIX
System V source code remains at issue, summary disposition is premature
because facts
concerning Daimler's conduct are uniquely within Daimler's control and
Daimler has yet
to submit discovery in this case.
ARGUMENT
I. MR. BRODERICK'S JUNE 15 AFFIDAVIT IS PROPERLY BASED ON PERSONAL
KNOWLEDGE AND CONSTITUTES ADMISSIBLE EVIDENCE
When considering a motion for summary disposition brought pursuant to
Michigan Court Rule 2.116(C)(10), the court must consider the
pleadings, depositions,
admissions and documentary evidence submitted by the parties to the
extent that the
content or substance would be admissible as evidence to deny the
grounds stated in the
motion. MCR 2.116(G)(5) and 2.116(G)(6). Michigan Court
Rule 2.119(B)(1) provides
that affidavits filed in opposition to a motion must (1) be based on
personal knowledge;
(2) state with particularity facts admissible as evidence denying the
grounds stated in the
motion; and (3) show affirmatively that the affiant, if sworn to as a
witness, can testify
competently to the facts stated in the affidavit. See
Smith v. City of Detroit, No. 238927,
2003 WL 21995211, at *3 (Mich. Ct. App. Aug. 21, 2003) (attached
hereto as Appendix
A); Regents of the Univ. of Mich. v. State Farm Mut. Ins.
Co., 250 Mich. App. 719, 728,
650 N.W.2d 129, 134-35(2002); Midland Mut. Life Ins. v.
Robison, No. 185868, 1997
WL 33353689, at *1 Mich. Ct. App. Feb 21, 1997)(attached hereto as
Appendix B);
Baker v. DEC International, 218 Mich. App. 248, 261-62, 553
N.W.2d 667, 673 (1996),
aff'd in part and rev'd in part on other grounds,
458 Mich. 247, 580 N.W.2d 894 (1998);
Hubka v. Pennfield Township,
197 Mich. App. 117, 119-20, 494 N.W.2d
800,801
(1992), aff'd in part and rev'd in
part on other grounds, 443 Mich.
864, 504 N.W.2d 183
(1993).
The whole premise for Daimler's argument -- that Mr. Broderick lacks
personal knowledge of the facts sworn to in the June 15 Affidavit
because he assumed his
current position with SCO in May 2001 -- is unfounded. The June
15 Affidavit clearly
states Mr. Broderick has been involved in sales and licensing of the
UNIX software for
SCO and its predecessors since 1991. See June 15
Affidavit ¶¶1-2 (emphasis added).
Mr. Broderick further states that he made the affidavit based on
personal knowledge and
that he is competent to testify to the facts in the affidavit.
Id.
To lay the matter to rest, Mr. Broderick details more fully in his
Supplemental Affidavit the basis for his personal knowledge of the
License Agreement
and the parties' relationship prior to May 200.
See Supplemental Affidavit ¶¶1-12. Mr.
Broderick first became involved with the sale of UNIX System V Software
in December
1992 as the manager of sales operations for UNIX Systems Laboratories,
a subsidiary of
AT&T. Id. ¶5. An operating subsidiary of AT&T,
AT&T Information Systems, was an
original party to the License Agreement. Id. Mr.
Broderick has been the individual
directly responsible for managing software licensing activities for
UNIX System V
source code license agreements since February 1993, originally as the
contracts manager
and later as the Director of Software Licensing for SCO and its
predecessors. Id. ¶¶6-8.
When he assumed responsibility for managing UNIX System V source
code licensing over a decade ago, Mr. Broderick familiarized himself
with all the
software agreements then in existence, including any amendments and
supplements.
Supplemental Affidavit ¶10. He became personally familiar with
the License Agreement
at issue in this case in 1993. Id. ¶9.
For the past eleven years he has worked with the
UNIX System V source code License Agreement, researched amendments to
the License Agreement, issued supplements to the License Agreement,
monitored,
along with the
finance department, the revenue streams derived from the License
Agreement and
answered questions regarding licensees' rights and responsibilities
under the terms of the
License Agreement. Id. Mr. Broderick was
trained by the very lawyers and contract
managers who were involved with the License Agreement from its
inception. Id.
Further, he has negotiated and managed hundreds of UNIX System V source
code license
agreements identical to the one at issue here. Id. ¶
12. Daimler's claim that Mr.
Broderick has no knowledge of the License Agreement or the parties'
relationship prior to
May 2001 is simply wrong.
Daimler's effort to strike paragraphs 8, 56, and 57 of the June 15
Affidavit
is especially misguided. Those paragraphs merely state that
accurate copies of the
License Agreement and the Supplements to the License Agreement are
attached to the
affidavit. Mr. Broderick is the custodian of the License
Agreement and its Supplements,
which are admissible as SCO's business records.
See MRE 803(6)(Business records are
admissible as non-hearsay).
For similar reasons, paragraphs 10 through 24 of the June 15 Affidavit
do
not improperly interpret the License Agreement, as Daimler
contends. See Daimler
Mem. at 4. Those paragraphs merely quote certain provisions of the
License Agreement,
see, e.g., June 15 Affidavit ¶11 (quoting Section
2.01 of the License Agreement); restate
the subject of certain provisions, see, e.g. id. ¶12
(stating "[t]he License Agreement
defines Software Products to include UNIX"); or set forth a general
statement of the
subject of certain provisions followed by a full quotation of the
pertinent provision. See,
e.g., id. ¶16 (stating "[u]nder the License Agreement,
Daimler agreed to maintain the
confidentiality of UNIX," and quoting in full Section 7.05(a) of the
License Agreement).
The License Agreement and the Supplements are admissible documents that
Mr.
Broderick can properly quote or paraphrase. See J.L.
Dumas & Co. v. Forty-Nine
Highland Ltd. Dividend, No., 186016, 1996 WL 33357155, at *1
(Mich. Ct App. Sept.
27, 1996)(affidavit testimony regarding the contents of public records
and business
records was properly considered even in absence of statement that
witness was competent
to testify)(attached hereto as Appendix C). See
also Supplemental Affidavit ¶¶19-21.
Paragraphs 34, 44, 45 and 59, which Daimler also challenges, are based
on
Mr. Broderick's personal knowledge and understanding of the application
of the terms of
the License Agreement, gained in the course of his employment.
For over eleven years,
Mr. Broderick has been responsible for working with customers that have
licensed UNIX
System V source code under the License Agreement. Supplemental
Affidavit ¶22. In
order to do his job, he has applied the provisions of the License
Agreement, including the
provisions relating to certification of compliance, termination and
confidentiality. Id. ¶¶23-24. Based on that personal knowledge, paragraphs 34, 44, 45
and 59 state Mr.
Broderick's understanding of what it means to act in accordance with
and to comply with
Section 2.05 of the License Agreement. Id. This
includes his estimate of what is a
reasonable time within which a UNIX System V source code licensee with
a properly
functioning IT department should be able to certify compliance with the
terms of the License Agreement. Id.
Mr. Broderick's twenty years of experience in the computer industry
forms
the basis of his knowledge of the statements made in paragraphs 25 and
26 of the June 15
Affidavit. During his work for a computer manufacturer before
joining AT&T, and after
becoming involved in the sale and licensing of UNIX System V software,
Mr. Broderick
became knowledgeable about business enterprises' use of UNIX and
competitive
products. Supplemental Affidavit ¶¶25-27. It is on the
basis of this knowledge and
industry experience that Mr. Broderick described the nature of
commercial reliance on
UNIX during the 1980s in paragraph 25 of the June 15 Affidavit.
Mr. Broderick's
statement in paragraph 26 of the June 15 Affidavit that the parties did
not contemplate the
commercial use of Linux in 1988, was nothing more or less than a
logical observation
based on his knowledge of the industry, since Linux was not even
invented until 1991 by
a student at Helsinki University and the first version of Linux did not
appear until 1994.
See Supplemental Affidavit ¶27.
Daimler erroneously contends that paragraphs 28 and 65 of the June 15
Affidavit should be stricken as inadmissible. In those
paragraphs, Mr. Broderick
properly states that Daimler has utilized Linux since at least October
2002 and is
currently using Linux. Those statements are based on Daimler's
own statements and
admissions. See Supplemental Affidavit ¶28
and Exhibit A. Admissions of a party
opponent are not hearsay and are admissible evidence to which Mr.
Broderick can
properly refer. MRE 801(d)(2); J. L. Dumas &
Co.,, 1996 WL 33357155, at *1 (affiant
properly referred to non-hearsay evidence).
Finally, paragraphs 62 through 64 of the June 15 Affidavit, which
discuss
Daimler's employees' access to and utilization of UNIX System V source
code, are also
properly based on Mr. Broderick's personal knowledge. It is a
requirement of his job that
Mr. Broderick have personal knowledge of Daimler's right of access to
UNIX System V
source code and for how long Daimler enjoyed that access.
Supplemental
Affidavit ¶30.
Mr. Broderick's statements in paragraphs 63 and 64 of the June 15
Affidavit regarding
Daimler's use of UNIX System V source code are predicated upon his
understanding --
based on his licensing experience -- that the whole purpose of
licensing the UNIX System
V source code is to gain access to the source code so it can be used
and modified to suit
the licensee's commercial needs. Supplemental Affidavit ¶31. If a
licensee did not want
to use and modify the UNIX System V source code, it could obtain a far
less expensive
packaged product license for tenth of the license fee it pays for
access to the source
code Id. The UNIX System V source code can
only be modified through an
understanding of the source code and the methods and concepts contained
withing. Id. ¶32. The observations are all based on Mr.
Broderick's knowledge
of the software
product SCO licensed to Daimler and others. Moreover, Mr.
Broderick's statement that
Daimler was using UNIX System V source code was based on his knowledge
that (1) in
1992 Daimler changed the designated computers on which it was
authorized to use UNIX
System V source code, (2) Daimler admitted in its letter responding to
SCO's certification
request that it used UNIX System V source code as recently as seven
years ago, and
(3) in 1997 Daimler obtained a "read-only" reference license of a later
UNIX System V
release, which would only have served the purpose of assisting its
utilization of the
earlier versions of the source code1
Id. ¶33.
II ASSUMING ARGUENDO THAT THE
JUNE 15 AFFIDAVIT LACKS A SUFFICIENT BASIS FOR ITS DESCRIPTION OF
DAIMLER'S CONDUCT, THE ABSENCE OF DISCOVERY REGARDING THE MANNER IN
WHICH DAIMLER USED AND MODIFIED UNIX SYSTEM V SOURCE CODE SHOULD
PRECLUDE SUMMARY DISPOSITION
As demonstrated above, the facts in the June 15 Affidavit are withing
Mr.
Broderick's personal knowledge. Further, through the June 15
Affidavit and SCO's
memorandum of law in opposition to Daimler's motion for summary
disposition, SCO
has sufficiently supported its position that Daimler has used UNIX
System V source code
and has failed to meet its certification obligations under the License
Agreement. Indeed,
SCO does not believe that facts relating to Daimler's specific
utilization of UNIX System
V source code are necessary to determine the underlying motion.
Nonetheless, Daimler
insists that Mr. Broderick lacks personal knowledge of Daimler's use
and modification of
UNIX System V source code. See Daimler Mem. at 5-6.
Assuming arguendo that the
specifics of Daimler's utilization of UNIX System V source code are
material to a
determination of Daimler's motion for summary disposition, as Daimler
implicitly argues,
and Mr. Broderick lacks personal knowledge of such specifics, then
Daimler cannot be
granted the relief sought in its underlying motion before SCO has an
opportunity to take
discovery from Daimler officials in possession of relevant knowledge.
Under MCR 2.116(H), when a party shows that the facts necessary to
support the party's position cannot be presented because they are known
only to persons
whose affidavits the party cannot obtain, the Court may enter an
appropriate order
denying the motion or providing time to permit the affidavit to be
supported by further
affidavits, or by depositions, answers to interrogatories or other
discovery.
Mr. Broderick attested to the facts and circumstances of which he was
personally aware regarding Daimler's access to and use and modification
of UNIX
System V source code. If, as Daimler contends, Mr. Broderick does
not know how
Daimler used and modified the source code and this Court finds that
those facts are
materially at issue on the present motion, then summary disposition is
premature until
discovery can be obtained on those issues. That information is
withing the knowledge of
Daimler's IT program manger responsible for the UNIX System V source
code licensed
from SCO and its predecessors and of those Daimler employees who were
granted access
to that code. See Supplemental Affidavit ¶34.
CONCLUSION
For all of the foregoing reasons, SCO respectfully requests that the
Court deny Daimler's motion in all respects.
| Dated: July 16, 2004 |
Respectfully submitted,
SEYBURN, KAN, GINN,
BESS AND SERLIN, P.C.
By: [signed] Joel H Serlin
Joel H Serlin (P20224)
Barry M. Rosenbaum (P26487)
Attorneys for Plaintiff
2000 Town Center, Suite 1500
Southfield, MA 48075-1195
(248) 353-7620
|
Stephen N. Zack, Esq.
Mark J. Heise, Esq.
Co-Counsel for Plaintiff
Boies, Schiller & Flexner LLP
Bank of America Tower
100 South East 2nd Street, Ste. 2800
Miami, FL 33131
(305) 539-8400
Robert Silver
Boies, Schiller & Flexner LLP
Co-Counsel for Plaintiff
333 Main Street
Armonk, NY 10504
(914) 749-8200 |
|
1 The bulk of Daimler's motion to strike is
addressed to paragraphs in the June 15 Affidavit that
simply identify for the Court those provisions in the License Agreement
that are relevant to
determining the issues in this case and provide context for the Court's
reading of the License
Agreement's terms. See Daimler Mem. at 2-3
seeking to strike paragraphs 8, 10-24, 35, 44, 45, 56, 57 and 59 of the
June 15 Affidavit. Even assuming that those paragraphs of
the June 15
Affidavit do not technically meet the requirements for an affidavit on
personal knowledge (a
position with which SCO does not agree), Daimler has not -- and cannot
-- show any prejudice
resulting from the Court's consideration of them. "Where
affidavits considered in determining a
motion for summary disposition violate the court rules, there must be a
showing of prejudice due
to the noncompliance or any error is harmless." Lease Corp. v.
Milazzo Enters., Inc., No.
214273, 2001 WL 733450, at *1 (Mich. Ct. App. Feb. 20, 2001)(attached
hereto as Appendix D.)
See also Jones v. Keene, No. 229281, 2002 WL 14827, at *3
(Mich Ct. App. July 9, 2002)
("[U]nlike a jury, a judge is presumed to possess and understanding of
the law, which allows him
to understand the difference between admissible and inadmissible
evidence or statements of
counsel. These resultant error may be harmless.")(attached hereto
as Appendix E); Borum v.
Grand Trunk Western Railroad, No. 204332, 1999 WL 33454907, at *4
(Mich. Ct. App. Feb. 5,
1999)("Absent a showing of prejudice resulting from noncompliance with
the court please, any
error is harmless.")(attached hereto as Appendix F), appeal
denied, 462 Mich. 852, 611 N.W.2d
799(1999); Baker v. DEC International, 218 Mich. App.
248, 261-62, 553 N.W.2d 667, 673
(1996)("Although the affidavits violate the court rules, absent a
showing of prejudice resulting
from noncompliance with the rules, any error is harmless"),
aff'd in part and rev'd in part on
other grounds, 458 Mich. 247 (1998); Hubka v.
Pennfield Township, 197 Mich. App. 117,119-
20, 494 N.W.2d 800, 801 (1992) ("[P]laintiff has again failed to show
any resulting prejudice"),
aff'd in part and rev'd on other grounds, 443 Mich.
864, 504 N.W.2d 183 (1993). On this
additional basis, Daimler's motion to strike would fail.
|
