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IBM's Reply Memo re Motion to Strike Materials -- as text |
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Monday, December 13 2004 @ 03:23 AM EST
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Here is IBM's Reply Memorandum in Support of Motion to Strike Materials Submitted by SCO in Opposition to IBM's Cross-Motion for Partial Summary Judgment, thanks to brooker, Nick Barnes and David Truog, who transcribed it for us. The context is IBM requests that the Court strike the materials submitted by SCO in opposition to IBM's cross-motion for partial summary judgment, as well as the Supplemental Declarations submitted by Sandeep Gupta, John Harrop, and Chris Sontag, and not consider them in ruling on IBM's Cross-Motion for Partial Summary Judgment on its Tenth Counterclaim, the one about noninfringement. Here, IBM aces SCO again and again, like Serena Williams on a really good day. First, they point out that SCO admits that none of the three declarants, Chris Sontag, Sandeep Gupta, or John Harrop, are providing testimony that goes to the merits of IBM's motion. Therefore, the judge should ignore what they say when deciding the motion. Next, IBM says that for all the reasons they gave in their opening brief the declarations are inadmissable even with respects to SCO's 56(f) application. That is the long way of saying that the declarations are good for nothing. I enjoyed reading this reply memorandum tremendously, for reasons that are a bit complicated to explain, but I'll try, if you'll bear with me.
IBM uses SCO's own words to put them away. In footnote 2, for example, they point out that by SCO's saying that Gupta's declaration "was not to show IBM's copyright infringement of SCO's protected UNIX code", they are saying that it wasn't offered to rebut IBM's position that there is no genuine issue of material fact that IBM's Linux activities do not infringe SCO's alleged copyrights. Hence, they point out, SCO was wrong when it argued, in its Opposition to IBM's Cross-Motion for Partial Summary Judgment, that Gupta's declaration presents facts that "show copying of material from UNIX into Linux" and "are themselves sufficient to create genuine issues of material fact." Next, IBM makes fun of SCO's trio pretending to have personal knowledge because they "describe facts which they observed during their education, their careers or the conduct of this case." In two cases, that personal knowledge is derived from reading documents obtained during discovery, which is, as IBM puts it with their usual reserve, incredible. To be a witness, normally you need to know something because you saw it, heard it, or perceived it in some direct way. You were there when it happened, whatever "it" is, and so you can tell the court what the facts are. A witness testifies to what he or she perceived, experienced, etc. You don't pick up a newspaper and then become qualified as a witness who can testify to the facts in the articles, because of what you read. You had to actually be at the event the article describes, not just read about it. Here are the Federal Rules of Evidence. IBM cites Rule 701, but let's look first at Rule 602:
"Rule 602. Lack of Personal Knowledge
"A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses." This is just saying that if you tell me what just happened to you in a car accident, let's say, I can't testify as to what happened in the accident, because I wasn't there. You can, because you were. I also can't testify if I read about it in the papers, or even if I read discovery documents in your litigation, because I still wasn't there. Here are Rules 701 and 702, but 701 is what applies here, because SCO has said they are not using their declarants as experts, and if you read the requirements in 702, you may discern why: "Rule 701. Opinion Testimony by Lay Witnesses
"If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
"Rule 702. Testimony by Experts
"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case."
You'll probably also find some interesting info if you click on the "Notes" link, under Rule 701, because it talks about Rule 701 being amended to "eliminate the risk that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing". Ah, so tricky litigants have been known to do that, eh? Here's what it says: "The rule retains the traditional objective of putting the trier of fact in possession of an accurate reproduction of the event.
"Limitation (a) is the familiar requirement of firsthand knowledge or observation.
"Limitation (b) is phrased in terms of requiring testimony to be helpful in resolving issues. Witnesses often find difficulty in expressing themselves in language which is not that of an opinion or conclusion. While the courts have made concessions in certain recurring situations, necessity as a standard for permitting opinions and conclusions has proved too elusive and too unadaptable to particular situations for purposes of satisfactory judicial administration. . . . Moreover, the practical impossibility of determinating by rule what is a 'fact,' demonstrated by a century of litigation of the question of what is a fact for purposes of pleading under the Field Code, extends into evidence also. . . . The rule assumes that the natural characteristics of the adversary system will generally lead to an acceptable result, since the detailed account carries more conviction than the broad assertion, and a lawyer can be expected to display his witness to the best advantage. If he fails to do so, cross-examination and argument will point up the weakness. . . . If, despite these considerations, attempts are made to introduce meaningless assertions which amount to little more than choosing up sides, exclusion for lack of helpfulness is called for by the rule. . . .
"Committee Notes on Rules - 2000 Amendment
"Rule 701 has been amended to eliminate the risk that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing. Under the amendment, a witness' testimony must be scrutinized under the rules regulating expert opinion to the extent that the witness is providing testimony based on scientific, technical, or other specialized knowledge within the scope of Rule 702. . . . By channeling testimony that is actually expert testimony to Rule 702, the amendment also ensures that a party will not evade the expert witness disclosure requirements set forth in Fed.R.Civ.P. 26 and Fed.R.Crim.P. 16 by simply calling an expert witness in the guise of a layperson. See Joseph, Emerging Expert Issues Under the 1993 Disclosure Amendments to the Federal Rules of Civil Procedure, 164 F.R.D. 97, 108 (1996) (noting that 'there is no good reason to allow what is essentially surprise expert testimony,' and that 'the Court should be vigilant to preclude manipulative conduct designed to thwart the expert disclosure and discovery process'). See also United States v. Figueroa-Lopez, 125 F.3d 1241, 1246 (9th Cir. 1997) (law enforcement agents testifying that the defendant's conduct was consistent with that of a drug trafficker could not testify as lay witnesses; to permit such testimony under Rule 701 'subverts the requirements of Federal Rule of Criminal Procedure 16(a)(1)(E)'). . . .
"For example, most courts have permitted the owner or officer of a business to testify to the value or projected profits of the business, without the necessity of qualifying the witness as an accountant, appraiser, or similar expert. See, e.g., Lightning Lube, Inc. v. Witco Corp. 4 F.3d 1153 (3d Cir. 1993) (no abuse of discretion in permitting the plaintiff's owner to give lay opinion testimony as to damages, as it was based on his knowledge and participation in the day-to-day affairs of the business). Such opinion testimony is admitted not because of experience, training or specialized knowledge within the realm of an expert, but because of the particularized knowledge that the witness has by virtue of his or her position in the business. The amendment does not purport to change this analysis. Similarly, courts have permitted lay witnesses to testify that a substance appeared to be a narcotic, so long as a foundation of familiarity with the substance is established. See, e.g., United States v. Westbrook, 896 F.2d 330 (8th Cir. 1990) (two lay witnesses who were heavy amphetamine users were properly permitted to testify that a substance was amphetamine; but it was error to permit another witness to make such an identification where she had no experience with amphetamines). Such testimony is not based on specialized knowledge within the scope of Rule 702, but rather is based upon a layperson's personal knowledge. If, however, that witness were to describe how a narcotic was manufactured, or to describe the intricate workings of a narcotic distribution network, then the witness would have to qualify as an expert under Rule 702. . . .
"The amendment incorporates the distinctions set forth in State v. Brown, 836 S.W.2d 530, 549 (1992), a case involving former Tennessee Rule of Evidence 701, a rule that precluded lay witness testimony based on 'special knowledge.' In Brown, the court declared that the distinction between lay and expert witness testimony is that lay testimony 'results from a process of reasoning familiar in everyday life,' while expert testimony 'results from a process of reasoning which can be mastered only by specialists in the field.' The court in Brown noted that a lay witness with experience could testify that a substance appeared to be blood, but that a witness would have to qualify as an expert before he could testify that bruising around the eyes is indicative of skull trauma. That is the kind of distinction made by the amendment to this Rule."
So, SCO did a little dance about their "experts" not being experts, and how a layperson can testify as to whether UNIX code was improperly placed in Linux and how CMVC works. And IBM could have said, wait a minute. This is testimony that needs to be properly offered only by experts, properly qualified under Rule 702. They do briefly say it in footnote 7. That's probably what SCO expected. Instead of stressing that, though, IBM in a neat turnaround said instead, Fine. Have it your way. They *aren't* experts. And because they are not, their opinions are not admissable, because lay witnesses can't offer opinions under Rule 701 except when "rationally based on the perception of the witness", and that doesn't mean they read a pamphlet on CMVC or boned up on discovery documents. As it happens, that also means there is little or nothing left being offered by SCO to rebut IBM's motion. What a dance move on IBM's part. Some cases cited might interest you. Here is Foster v. Alliedsignal, which quotes from a Supreme Court ruling in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986), which talked about when you should grant a summary judgment motion and when it would be better to let it go to a jury trial, and you'll see, I think, why IBM is wise to simply bat the testimony clear out of the park, if it can: "The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor. Neither do we suggest that the trial courts should act other than with caution in granting summary judgment or that the trial court may not deny summary judgment in a case where there is reason to believe that the better course would be to proceed to a full trial." It's very hard to win a motion for summary judgment, in other words, because the judge is obligated to accept all facts presented by the nonmovant. SCO in this picture is the "nonmovant" whose evidence must be believed in a summary judgment action, so if IBM can simply remove all the declarations, what evidence is there that is left to believe? Exactly. SCO gave them an opportunity to make this move by coyly claiming that they were not offering testimony from experts and were not going to the merits of the motion. See what I mean about acing SCO? If it works, it's positively brilliant, and there's a good feel to it, because it feels so right for SCO to lose because of their own tricks. Whether it will work or not, I can't predict. But it certainly could. Footnote 1 in Foster v. Alliedsignal is the part that IBM is citing, because in that case, the plaintiff submitted a telephone log, showing that she had called Alliedsignal on two occasions. The court said that the affidavit by her attorney set forth facts of which he had no personal knowledge and thus were inadmissible as evidence, since he had no knowledge about the log, the information in it, the document's source or its authenticity. IBM uses the case, therefore, to point out that attorney John Harrop trying to testify to matters because he merely read some discovery materials can't fly. You'd never actually need witnesses in any case, IBM argues, if SCO's theory of personal knowledge were accepted. Both sides could just read up on the case and testify about what they read. This is likely to make the judge smile, because it is ludicrous: "SCO's arguments that Mr. Sontag, a SCO officer, has personal knowledge sufficient to offer sworn testimony about the workings of IBM's internal CMVC system 'based upon information he read in IBM's documents describing CMVC' in the course of this litigation (SCO Opp'n at 15), or that Mr. Harrop, SCO's outside counsel, has 'personal knowledge' sufficient to testify about the history and current development process of Linux, and about IBM's contractual rights and obligations, because 'Mr. Harrop is familiar with documents in this case' (SCO Opp'n at 18) -- is counter to basic rules of evidence. Were SCO's theory of 'personal knowledge' correct, there would never be any need for first-hand witnesses to testify at any trial; the attorneys or other designated representatives for each side could simply review and familiarize themselves with documents produced during the case, and then testify, under oath, and with" Or here's an idea. If we don't need witnesses to speak from firsthand knowledge, maybe each side could just hire a knight to hop on a horse and carry a party's flag into the arena and fight on their behalf, and may the best man win. Who needs witnesses to facts then? It's all so silly, you might as well settle things that way, if you toss out the requirement that witnesses must speak from personal knowledge. IBM cites a case, Denmon v. Runyon, and attaches it as Exhibit B, p. 22 of the PDF, that says that declarations are "subject to the same requirements as affidavits ... the court may only consider material that would be admissible at trial," that "[s]tatements not based on personal knowledge must be disregarded by the court,” and that "declarations may not be 'based on a review of the records.'" So, if IBM is successful is arguing that the declarants lack personal knowledge, then their declarations must be stricken and not considered when deciding the motion, and Mr. Harrop and Sontag's reading matter will not qualify as evidence of personal knowledge: " . . . Mr. Harrop, a
SCO attorney who joined SCO's legal team nine months after this
litigation began, purports to
have acquired personal knowledge of a variety of topics such as the
development of Linux and
the difficulties of software code comparison solely through his 'review
of pleadings, discovery
filings and public articles' related to this litigation. Similarly,
Mr. Sontag, a SCO executive,
purports to have acquired personal knowledge of IBM's internal
software control through his
review of several documents discovered during litigation. . . . "Finally, the Supplemental Declarations of Messrs. Sontag, Gupta, and Harrop do not cure the declarants' lack of personal knowledge. . . . For example, in testifying as to the alleged fact that two particular IBM employees had access to UNIX code, . . .Mr. Gupta testifies that his statements were 'based on documents that were compiled by members of the SCO team and which I read and reviewed'. . . . Mr. Sontag's Supplemental Declaration likewise states that he 'ha[s] read portions of IBM documents about its CMVC product' and thus somehow acquired personal knowledge of CMVC that way. . . . Similarly, in a vain attempt to establish his personal knowledge of the facts contained within various hearsay news articles, Mr. Harrop states that he 'reviewed...all...public articles that are cited, quoted or referred to in [his] July 9 Declaration.' . . . As discussed above, such a review of documents undertaken in the midst of litigation is insufficient to create personal knowledge." As you can see, IBM is having some fun, in its own dry and deadly way. And this is just the first section of their argument. There are many more goodies, but I need to get some sleep, and you'll enjoy it on your own the rest of the way, now that I have explained what I enjoyed so much about IBM's Reply Memorandum. Take note of the final footnote. I'll probably try to write about what they did in that footnote, the way they used cases, because it's a sight to behold too. This is the creative part of the law, the part I love the most, second only to research: when you read what the other side submits and then decide, out of all your options, what to do in response. Those choices are where the art comes into it. And it's a plum pleasin' pleasure to read a memorandum like this.
By the way, I put the footnotes inside the pages where they appear. Let me know if this helps or makes it harder to follow along. It's an experiment, in anticipation of really long documents with lots of footnotes thorughout, like the EU antitrust decision against Microsoft, for example.
***************************************
SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[address, phone, fax]
CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone, fax]
Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
_______________________________
The SCO GROUP, INC.,
Plaintiff/Counterclaim-Defendant,
v.
INTERNATIONAL BUSINESS MACHINES
CORPORATION,
Defendant/Counterclaim-Plaintiff.
______________________________
DEFENDANT/COUNTERCLAIM-PLAINTIFF
IBM'S REPLY MEMORANDUM IN
SUPPORT OF MOTION TO STRIKE
MATERIALS SUBMITTED BY SCO IN
OPPOSITION TO IBM'S CROSS-MOTION
FOR PARTIAL SUMMARY JUDGMENT
Civil No. 2:03CV-0294 DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells
_______________________________
Defendant/Counterclaim-Plaintiff International Business Machines
Corporation ("IBM")
respectfully submits this Reply Memorandum in Support of its Motion to
Strike Materials
Submitted by SCO in Opposition to IBM's Cross-Motion for Partial
Summary Judgment.
Preliminary Statement
In response to IBM's motion to strike certain incomplete and
inadmissible materials that
SCO had submitted in support of its opposition to IBM's cross-motion
for partial summary
judgment on its Tenth Counterclaim, SCO concedes that the Declarations
of Chris Sontag,
Sandeep Gupta, and John Harrop were not submitted for the purpose of
attempting to show that a
genuine issue of material fact exists that would preclude summary
judgment.1 Rather, SCO now insists, these declarations were submitted
only "for a very narrow purpose: to provide the Court
with Rule 56(f) facts" (SCO Opp'n at 1), and were not intended by SCO
to oppose IBM's motion
"on the merits". (Id. at 30.)2 In light of SCO's admission, then, the
Court should not consider
any of the statements in the Sontag, Gupta, or Harrop Declarations (or
any portions of SCO's
opposition to IBM's summary judgment motion that cite such testimony)
in deciding whether a
genuine issue of material fact exists with respect to IBM's motion.
Even with respect to SCO's 56(f) application, however, the
declarations submitted by
SCO remain inadmissible, for the reasons set forth in IBM's opening
brief. Nothing in SCO's
opposition brief or in any of the "supplemental" declarations
submitted therewith alters the fact
______________
1 SCO spends half of its opposition to IBM's motion to strike the
Declarations of Chris Sontag,
Sandeep Gupta, and John Harrop (SCO Opp'n at 1-13) simply reviewing
and repeating the
statements contained in those Declarations. SCO's lengthy
description of the Declarations,
however, does not make them any more admissible.
2 Indeed, SCO specifically states Mr. Gupta's declaration "was not
[offered] to show IBM's
copyright infringement of SCO's protected UNIX code" (SCO Opp'n at
31) -- i.e., not offered to
rebut IBM's showing in its moving papers that there is no genuine
issue of material fact that
IBM's Linux activities do not infringe SCO's alleged copyrights. SCO
thus admits that its prior
contention that the facts set forth in Mr. Gupta's declaration "show
copying of material from
UNIX into Linux" and "are themselves sufficient to create genuine
issues of material fact" is
wrong. (SCO Opp'n to IBM's Cross-Motion for Partial Summary Judgment at 85-85.)
2
that the testimony of Messrs. Gupta, Sontag, and Harrop is not based
on personal knowledge and
contains improper opinion testimony and legal argument. Accordingly,
the Court should strike
the Gupta and Sontag Declarations and portions of the Harrop
Declaration (and each of their
Supplemental Declarations) and decline to consider them in ruling on
IBM's cross-motion for summary judgment or on SCO's Rule 56(f)
application.
In addition, SCO fails adequately to explain why it should be
permitted to rely on hearsay
statements made in certain news articles attached to the Harrop
Declaration. Those materials
should likewise be stricken.
Argument
I. The Court Should Strike SCO's Declarations Because SCO Still
Cannot Show That
Its Declarants Have Personal Knowledge.
SCO contends that the Sontag, Gupta, and Harrop Declarations are
based on personal
knowledge because the declarants "describe[ ] facts which they observed
during their education,
their careers or the conduct of this case". (SCO Opp'n at 13.)
However, other than simply
asserting that these individuals have personal knowledge, or claiming
(incorrectly) that the declarants may be deemed by this Court to have
acquired personal knowledge (incredibly, by
reading documents discovered during this litigation), SCO fails to
show that the testimony is
based in any way on the "perception" of these witnesses, much less
that it is "rationally based"
on their perception, as Rule 701 of the Federal Rules of Evidence requires.
First, Messrs. Sontag, Gupta, and Harrop's "participation" in this
litigation and their
review of documents discovered during the course of the
litigation, including documents
produced by IBM, is insufficient to establish that the witnesses
possess personal knowledge of
the facts contained in their declarations. Contrary to SCO's
assertion, it is well-established that
testimony based simply on a review of documents is not made on
"personal knowledge" and is
therefore inadmissible. See, e.g., Stanolind Oil & Gas Co. v. Sellers,
174 F.2d 948, 956-57 (10th
Cir. 1949) (reversing district court decision allowing testimony of
fact witness where the witness
3
"had no knowledge of the field until after this litigation began and
then such as he learned, he
learned in retrospect"); Foster v. Alliedsignal, Inc., 98 F. Supp. 2d
1261, 1265 (D. Kan. 2000),
rev'd on other grounds, 293 F.3d 1187 (D. Kan. 2002) (striking
plaintiff's attorney's "affidavit
that the telephone log shows that '[plaintiff] called defendant at
(913) 842-0406, two times on
December 12, 1995'" because attorney "ha[d] no personal knowledge
regarding [the underlying
fact of] whether plaintiff telephoned defendant on that day" and
"ha[d] no personal knowledge of
any of the information contained [within the telephone log], the
[log's] source, or its
authenticity").3
SCO's arguments that Mr. Sontag, a SCO officer, has personal
knowledge sufficient to
offer sworn testimony about the workings of IBM's internal CMVC system
"based upon
information he read in IBM's documents describing CMVC" in the course
of this litigation (SCO Opp'n at 15), or that Mr. Harrop, SCO's
outside counsel, has "personal knowledge" sufficient to
testify about the history and current development process of Linux,
and about IBM's contractual
rights and obligations, because "Mr. Harrop is familiar with documents
in this case" (SCO Opp'n
at 18) -- is counter to basic rules of evidence. Were SCO's theory of
"personal knowledge"
correct, there would never be any need for first-hand witnesses to
testify at any trial; the
attorneys or other designated representatives for each side could
simply review and familiarize
themselves with documents produced during the case, and then testify,
under oath, and with
____________________________
3 See also In re M. Silverman Laces, Inc., No. 01 Civ. 6209, 2002 WL
31412465, at *3
(S.D.N.Y. Oct. 24, 2002) (holding that "an attorney had no personal
knowledge [sufficient to
submit a declaration where] . . . he was not involved in any of the
underlying transactions [and]
his knowledge was based soley on information he gained from reviewing
documents and
interviewing or deposing witnesses in the course of litigating this
action") (attached hereto as Ex.
A); Rivera v. Levitt, 88 F. Supp. 2d 1132, 1142 n.4 (D. Colo. 2000)
(striking plaintiff's affidavit
that "he ha[d] personal knowledge of other non-Hispanic SEC attorneys
who were disciplined
less severely than he for the same work rule violations" where the
basis for his alleged personal
knowledge was his review of "monthly reports" and "letters"); Denmon
v. Runyon, Civ. A. No.
92-2144, 1993 WL 441970, at *2 (D. Kan. Oct 25, 1993) (striking
affidavit on summary
judgment where the statements in the affidavit were "based on a review
of records") (attached
hereto as Ex. B).
4
"personal knowledge", as to the "facts" at issue in the litigation. 4
That plainly does not make
any sense.
Second, SCO's reliance on the "education" and "career" experience of
the declarants to
support their alleged "personal knowledge" is misplaced. SCO argues,
for example, that Mr.
Gupta has "personal knowledge" sufficient to allow him to offer the
opinions set forth in
his declaration by virtue of "his education, career, and
participation in this case". (SCO Opp'n at
16) SCO further claims that Mr. Gupta's personal knowledge is shown by
his alleged
"analy[ses] [of] both the UNIX System V source code and portions of
the Linux source code."
(Id. at 17.) Of course, far from demonstrating "personal knowledge,"
SCO simply borrows the standards that are relevant to determining
whether a declarant is qualified to offer expert opinion
tesitmony (and SCO insistes that none of its three declarants is
offering expert testimony).
_________________________
4 SCO's cases in support of its argument that documents can provide
the basis for personal
knowledge are unavailing. As SCO readily admits, the court in Sitts v.
United States, 811 F.2d
736 (2d Cir. 1987), held that an attorney's personal knowledge in an
affidavit could be based on
documentary evidence, but only as to procedural facts in a case and
not to substantive facts.
(SCO Opp'n at 19, citing Sitts, 811 F.2d at 742.) Mr. Harrop's
declaration does not concern
solely procedural facts in this case, however, but rather substantive
facts about which Harrop has
no personal knowledge. SCO's reliance on United States v. Letscher, 83
F. Supp. 2d 367
(S.D.N.Y. 1999), fails for the same reason. The attorney affidavit
admitted in Letscher "set forth
the procedural history of th[e] case", id. at 381, and not substantive
facts. In re Tex. E.
Transmission Corp. PCB Contamination Ins. Coverage Litig., 870 F.
Supp. 1293, 1304 (E.D. Pa.
1992), is also inapposite. In that case, the declarant was found to
have personal knowledge of his
own company's historical policies and practices where he had reviewed
the company's corporate
documents and discusses the events with other senior executives at the
company during the
course of his employment. That is far different from the instant
situation, where Mr. Harrop, a
SCO attorney who joined SCO's legal team nine months after this
litigation began, purports to
have acquired personal knowledge of a variety of topics such as the
development of Linux and
the difficulties of software code comparison solely through his "review
of pleadings, discovery
filings and public articles" related to this litigation. Similarly,
Mr. Sontag, a SCO executive,
purports to have acquired personal knowledge of IBM's internal
software control through his
review of several documents discovered during litigation. SCO's final
case, In re: Real Estate
Assocs. Limited Partnership Litig., No. Civ. 98-7035, 2002 WL
31027557, at *1 (C.D. Cal. Aug.
29, 2002), is a 2-page unpublished opinion from the Central District
of California that is not
controlling and lacks any detail concerning the nature of the
affidavit challenged in that case.
5
Finally, the Supplemental Declarations of Messrs. Sontag, Gupta, and
Harrop do not cure
the declarants' lack of personal knowledge. Aside from bare assertions
that the original
Declarations are based on personal knowledge, the Supplemental
Declarations do little to show
that the declarants in fact have the requisite personal knowledge.
Rather, they merely confirm
that the declarants' testimony is based, in many cases, only on
second-hand and hearsay
knowledge and on a review of certain documents produced in this
litigation. For example, in
testifying as to the alleged fact that two particular IBM employees
had access to UNIX code,
(Gupta Decl. ¶¶ 24-29, 48-49), Mr. Gupta testifies that his statements
were "based on documents
that were compiled by members of the SCO team and which I read and
reviewed". (Gupta Supp.
Decl. ¶ 28.) Mr. Sontag's Supplemental Declaration likewise states
that he "ha[s] read portions
of IBM documents about its CMVC product" and thus somehow acquired
personal knowledge of
CMVC that way. (Sontag Supp. Decl. ¶12.) Similarly, in a vain attempt
to establish his
personal knowledge of the facts contained within various hearsay news
articles, Mr. Harrop
states that he "reviewed...all...public articles that are cited,
quoted or referred to in [his] July
9 Declaration." (Harrop Supp. Decl. ¶ 7.) As discussed above, such a
review of documents
undertaken in the midst of litigation is insufficient to create
personal knowledge.
II. The Paragraphs Of The Harrop Declaration That Are Impermissible Legal
Argument Should Be Stricken.
SCO also makes no real effort in its brief to oppose IBM's contention
that certain
paragraphs in the Harrop Declaration, ¶¶ 5-9, 11-24, 27, 29-30,
39-40, 47, 62, 67, 69 and 76-90, should be stricken as improper legal argument. The closest SCO
comes to a response is its
oft-repeated conclusory statement that Mr. Harrop's declaration is
based upon personal knowledge,
and the claim in Mr. Harrop's Supplemental Declaration that he has
"personal knowledge of the
facts" in at least some of those paragraphs. (Harrop Supp. Decl. ¶¶
8-9.) Whether or not Mr.
Harrop has personal knowledge of facts allegedly contained in the
offending paragraphs (and it is
plain that he does not), however, is irrelevant to whether such
paragraphs contain improper legal
6
argument (which they do). Accordingly, those paragraphs of the Harrop
Declaration that contain improper legal argument should be stricken.
See Pfeil v. Rogers, 757 F. 2d 850, 862 (7th Cir.
1985) (holding that "[b]ecause legal argumentation is an expression of
legal opinion and is not a
recitation of 'fact' to which an affiant is competent to testify,
legal argument in an affidavit may
be disregarded.").5
III. None Of The Declarants Purports To Offer Expert Opinion Testimony.
As SCO expressly concedes that it has not offered any of the
declarants as experts
providing expert opinion testimony (SCO Opp'n at 30), there is no
basis for the Court to
consider any of the Declarations on this ground either.6 Since Messrs.
Gupta, Sontag, and
Harrop cannot offer such expert opinion testimony as lay witnesses
either7 , the expert opinion
testimony in the Gupta and Sontag Declarations (as well as those
portions of the Harrop
Declaration that rely on those opinions) should therefore be stricken.8
________________________
5 See also American Airlines, Inc. v. Platinum World Travel, 717 F.
Supp. 1454, 1456 n.1 (D.
Utah 1989); Safetech Int'l, Inc. v. Air Prods. And Controls Inc., No.
02-2216, 2004 U.S. Dist.
LEXIS 2173, at *7 (D. Kan. Feb. 3, 2004) (attached to IBM's Memorandum
in Support of Its
Motion to Strike, Exhibit B).
6 SCO also does not make any effort to correct Mr. Gupta's flawed
analysis of substantial
similarity, instead conceding that Mr. Gupta's declaration was not
offered "to show IBM's
copyright infringement of SCO's protected UNIX code". (SCO Opp'n at 31.)
7 While a lay witness may offer opinion testimony if such opinions
are "rationally based on the
perception of the witness", Fed. R. Evid. 701 (emphasis added), it is
clear that, contrary to SCO's
contention, the opinions in Mr. Gupta's and Mr. Sontag's declarations
regarding the process,
techniques, and alleged results of comparing computer source code are
the province of expert,
not lay, testimony. See Lifewise Master Funding v. Telebank, 374 F.3d
917, 929 (10th Cir.
2004) (stating that "[w]hen the subject matter of proffered testimony
constitutes 'scientific,
technical, or other specialized knowledge'", a witness must be
qualified as an expert under Rule
702 (quoting Fed. R. Evid. 702)); Hilgraeve Corp. v. McAfee Assocs.,
Inc., 70 F. Supp. 2d 738,
755 (E.D. Mich. 1999) (holding that the field of computer science "is
precisely the type of
'specialized knowledge' governed by Rule 702"). None of the cases SCO
cites for the
proposition that lay opinions are sometimes permitted concerned a
comparison of computer
code.
8 SCO claims that none of its declarants needs to be qualified as an
expert witness because none
of their declarations contains opinion testimony. SCO's description of
the clear opinion
7
IV. The Court Should Exclude Certain Of The Documents Submitted By SCO In
Opposition To IBM's Motion For Partial Summary Judgment.
IBM moved to strike Exhibits 38, 41, 52, 56, 57, 58, 59, 64 to SCO's
brief in opposition
to IBM's summary judgment motion because they are newspaper articles
that were offered by
SCO for the truth of the matters asserted.9 This is classic
inadmissibile hearsay that should not be
considered by the Court. (IBM Mem. at 15.) In response to IBM's
motion, SCO advances two
arguments. Both are untenable.
First, Mr. Harrop contends that "[i]t has been common practice in the
pleadings in this
case to present newspaper, magazine, and Internet articles to the
Court". (Harrop Supp. Decl. ¶
12.) This argument borders on the frivolous. IBM has never asserted
that statements in
newspaper, magazine, and Internet articles may never properly be
relied upon. To the contrary,
such statements may properly be relied upon in any number of
circumstances, if they constitute
admissions by a party opponent, or if they are subject to any of the
numerous exceptions to the
______________________
testimony of its declarants as simple "fact testimony" strains
credibility. For example, SCO
insists that Mr. Sontag's statements that "us[ing] an automated
process to perform a complete
comparison of all of the source code in UNIX and Linux...is not
feasible" and that manual
review "could take on the order of 25,000 man-years" are not opinions,
but are facts. (Sontag
Decl. ¶¶ 10, 14.) If statements such as these are not opinions, it is
hard to imagine what could
ever be considered an opinion in SCO's view. SCO also takes issue with
IBM's citation of the
following statement by Mr. Gupta as evidence that Mr. Gupta offers
inadmissible opinion
testimony in his declaration: "In this declaration, I explain why I
believe that several routines
and several groupings of code for which SCO has copyright protection
were copied into the
Linux operating system". (Gupta Decl. ¶3.) SCO argues that this is a
statement of fact because
Mr. Gupta is merely summarizing what is stated in his declaration. SCO
is again wrong. Mr. Gupta plainly stating his "belie[f]", in other
words, his opinion, that code that SCO has
copyrighted has been copied into Linux, and his entire declaration is
addressed to substantiating
his opinion.
9 IBM also moved to strike, as extraneous documents, 11 exhibits
(Exs. 24, 25A, 33, 36, 42, 50,
51, 61, 63, 65, and S-3) that were attached to SCO's opposition to
IBM's summary judgment motion but that were not referenced anywhere in SCO's brief or in any of the witness declarations submitted by SCO. As SCO offers not response to IBM's request, these materials
should also be stricken.
8
hearsay rule set forth in the Federal Rules of Evidence. In this
instance, however, Mr. Harrop
seeks to rely on the offending articles solely for the truth of
matters asserted therein (and he does
not contend otherwise), and that is not permitted.
Second, SCO argues that a party opposing summary judgment is entitled
to relaxed
evidentiary standards and may disregard the prohibition against
presenting hearsay newspaper
articles in opposing summary judgment. (SCO Opp'n at 22.) SCO is
wrong. Rule 56(e) of the
Federal Rules of Civil Procedure specifically provides that affidavits
submitted in opposition to a
motion for summary judgment "shall set forth such facts as would be
admissible in evidence".
Fed. R. Civ. P. 56(e) (emphasis added). Courts in this circuit have
therefore routinely rejected
SCO's argument and stricken hearsay articles submitted in opposition
to summary judgment.
See Molina v. Spanos, 208 F.3d 226 (Table) (10th Cir. 1999) (rejecting
plaintiff's appeal of "the
district court's detemination that it would not consider a newspaper
article submitted by
plaintiff" in opposition to summary judgment because "[t]he article
constitutes inadmissible
hearsay"); Johnson v. Housing Auth., 887 F. Supp. 1440, 1446 (E.D.
Okla. 1995) (holding that
"newspaper articles" cited in opposition to summary judgment were
"inadmissible hearsay");
Good v. Bd. of County Comm'rs, No. 01-4067, __ F. Supp. 2d __, 2004 WL
1859729, at *8 (D.
Kan. May 19, 2004) (holding that "plaintiff['s] offer...[of newspaper]
articles to prove the
information contained in them" submitted in opposition to summary
judgment was "hearsay and
may not be considered on a motion for summary judgment") (attached
hereto as Ex. C); Miles v.
Ramsey, 31 F. Supp 2d 869, 876 (D. Colo. 1998) (holding that the
"Court may not consider this
evidence" of statements made in a newspaper submitted in opposition to
summary judgment
because "the articles are inadmissible hearsay"). 10
____________________________
10The cases SCO cites in support of its argument that hearsay
articles may be submitted in
opposition to summary judgment are unavailing. As an initial matter,
SCO attempts to rewrite
the Supreme Court's decision in Celotex Corp. v. Catrett, 477 U.S. 317
(1986), contending that
in Celotex, "[t]he Supreme Court allowed an opponent to submit three
letters which constituted
9
Conclusion
For the foregoing reasons, IBM respectfully requests that the Court
strike the materials
submitted by SCO in opposition to IBM's cross-motion for partial
summary judgment, as well as
the Supplemental Declarations submitted by Messrs. Gupta, Harrop, and
Sontag, dated
September 7, 2004, and not consider them in ruling on IBM's
Cross-Motion for Partial Summary
Judgment on its Tenth Counterclaim.
DATED this 13th day of September, 2004.
SNELL & WILMER L.L.P.
___[signature]____
Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson
CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler
David R. Marriott
Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation
___________________
hearsay in opposition to a motion for summary judgment". (SCO Opp'n at
22 n.3, citing
Celotex, 477 U.S. at 320.) A careful review of Celotex, however,
reveals that SCO has invented
this holding whole-cloth. In Celotex, the Supreme Court merely recited
the procedural history of
the case, noting that the respondent, before the district court, had
submitted three documents in
opposition to summary judgment to which the petitioner had objected on
the grounds that they
contained inadmissible hearsay. The Supreme Court spoke no further on
these documents and
certainly did not rule on whether the documents did constitute
hearsay, or whether they were
properly admitted. The two additional cases cited by SCO are decisions
by the Eleventh Circuit,
Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013 (11th Cir.
1987), and Church of
Scientology Flag Services Org., Inc. v. City of Clearwater, 2 F.3d
1514, 1530-31 (11th Cir. 1993).
To the extent that these cases may support SCO's argument, they are
plainly contrary to the law
of this circuit. Even within the Eleventh Circuit, judges have
criticized the circuit's position.
See Offshore Aviation, 831 F.2d at 1016-1017 (Edmondson, J.,
concurring); Int'l Ship Repair &
Marine Servs., Inc., v. St. Paul Fire & Ins. Co., 906 F. Supp. 645,
648-49 (M.D. Fla. 1995).
10
Of counsel:
INTERNATIONAL BUSINESS MACHINES CORPORATION
Donald J. Rosenberg
Alec S. Berman
[address, phone]
Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation
11
CERTIFICATE OF SERVICE
I hereby certify that on the 13th day of September, 2004, a true and
correct copy of the foregoing was hand delivered to the following:
Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]
And was sent by U.S. Mail, postage prepaid, to the following:
Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]
Robert Silver
BOIES, SCHILLER & FLEXNER LLP
[address]
___[signature]____
Amy F. Sorenson
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|
Authored by: chrisbrown on Monday, December 13 2004 @ 04:06 AM EST |
n/t [ Reply to This | # ]
|
- Corrections here please - Authored by: Stinger on Monday, December 13 2004 @ 04:26 AM EST
- Corrections here please - Authored by: Anonymous on Monday, December 13 2004 @ 04:28 AM EST
- Corrections here please - Authored by: Stinger on Monday, December 13 2004 @ 04:48 AM EST
- Corrections here please - Authored by: Anonymous on Monday, December 13 2004 @ 04:52 AM EST
- Corrections here please - Authored by: igneous on Monday, December 13 2004 @ 05:02 AM EST
- Footnote placement - Authored by: Anonymous on Monday, December 13 2004 @ 05:06 AM EST
- Footnote placement - Authored by: Anonymous on Monday, December 13 2004 @ 09:06 AM EST
- I disagree - Authored by: Anonymous on Monday, December 13 2004 @ 11:08 AM EST
- Footnote Placement - Authored by: Ian Al on Monday, December 13 2004 @ 05:50 AM EST
- Footnotes - Authored by: davcefai on Monday, December 13 2004 @ 06:43 AM EST
- Corrections here please - Authored by: Anonymous on Monday, December 13 2004 @ 06:54 AM EST
- tesitmony --> testimony - Authored by: _Arthur on Monday, December 13 2004 @ 08:01 AM EST
- typo: s/be inadmissible (2nd para) - Authored by: qu1j0t3 on Monday, December 13 2004 @ 01:12 PM EST
- Footnote placement disruptive. - Authored by: rao on Monday, December 13 2004 @ 01:51 PM EST
- Corrections here please - soley --> solely? - Authored by: ankylosaurus on Monday, December 13 2004 @ 08:43 PM EST
- Corrections here please: insistes --> insists? - Authored by: ankylosaurus on Monday, December 13 2004 @ 08:47 PM EST
- s/admissable/admissible/g - N/T - Authored by: Anonymous on Monday, December 13 2004 @ 09:45 PM EST
- Corrections here please - Authored by: Anonymous on Tuesday, December 14 2004 @ 06:13 PM EST
- Corrections here please - Authored by: Anonymous on Wednesday, December 15 2004 @ 04:02 PM EST
|
Authored by: chrisbrown on Monday, December 13 2004 @ 04:08 AM EST |
n/t. [ Reply to This | # ]
|
- Reminds me of those commercials ... - Authored by: Anonymous on Monday, December 13 2004 @ 09:41 AM EST
- Why does SCO stock continue to climb? - Authored by: Anonymous on Monday, December 13 2004 @ 10:43 AM EST
- New SCO filing - scriveners errors - Authored by: Anonymous on Monday, December 13 2004 @ 12:39 PM EST
- And finally: another own goal for Microsoft - Authored by: cheros on Monday, December 13 2004 @ 12:39 PM EST
- Judicial workload - Authored by: foulis on Monday, December 13 2004 @ 12:40 PM EST
- Members only topics - Authored by: paul_cooke on Monday, December 13 2004 @ 01:20 PM EST
- European Patent Update - Authored by: eamacnaghten on Monday, December 13 2004 @ 01:31 PM EST
- SCO Patents - Authored by: Anonymous on Monday, December 13 2004 @ 01:52 PM EST
- Off-topic Threads Here... - Authored by: lmbell on Monday, December 13 2004 @ 02:46 PM EST
- Off-topic Threads Here... - Authored by: LarryVance on Monday, December 13 2004 @ 02:54 PM EST
- Idea: Groklaw Wiki to start transcriptions...? - Authored by: Anonymous on Monday, December 13 2004 @ 04:01 PM EST
- OT: ex officio - Authored by: nils on Monday, December 13 2004 @ 09:27 PM EST
- Peddlers of fear - Authored by: Anonymous on Monday, December 13 2004 @ 09:54 PM EST
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Authored by: bcomber on Monday, December 13 2004 @ 04:40 AM EST |
"..SCO spends half of its opposition to IBM's motion to strike the
Declarations of Chris Sontag, Sandeep Gupta, and John Harrop (SCO Opp'n at 1-13)
simply reviewing and repeating the statements contained in those Declarations.
SCO's lengthy description of the Declarations, however, does not make them any
more admissible. "
How true this is. What more does IBM have to show in order to get these removed?
Even Mr. Gupta's second deposition doesn't show much more than the first one.
Mike[ Reply to This | # ]
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Authored by: edal on Monday, December 13 2004 @ 04:59 AM EST |
OK, first things first, I've been following these cases for over a year now and
it's only when you read motions like this that you realize how good the IBM
lawyers are. I'm unlikely to ever find myself in a US court but if I do, I do
NOT want to be facing these folk, they're ruthless and, what's more, they seem
to be enjoying it.
Secondly, I need some help here because I was brought up under the English
school system and not the US. I need to know, what's the rules behind use of the
[s]quare brackets in text ? This declaration is littered with them and I often
see them in other US originated text as well. [Sometimes] they often appear
without reason so could someone with a better knowledge of American English than
me explain what is going on ?
Ed Almos
Budapest, Hungary[ Reply to This | # ]
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- IBM Lawyers & American English - Authored by: igneous on Monday, December 13 2004 @ 05:11 AM EST
- IBM Lawyers & American English - Authored by: Anonymous on Monday, December 13 2004 @ 05:16 AM EST
- IBM Lawyers & American English - Authored by: Anonymous on Monday, December 13 2004 @ 05:25 AM EST
- IBM Lawyers & American English - Authored by: Anonymous on Monday, December 13 2004 @ 07:08 AM EST
- Blue Book - Authored by: Anonymous on Monday, December 13 2004 @ 07:18 AM EST
- Link - Authored by: Anonymous on Monday, December 13 2004 @ 12:29 PM EST
- Working link - Authored by: Anonymous on Monday, December 13 2004 @ 12:31 PM EST
- IBM Lawyers & American English - Authored by: Anonymous on Monday, December 13 2004 @ 05:57 AM EST
- IBM Lawyers & American English - Authored by: Anonymous on Monday, December 13 2004 @ 06:02 AM EST
- IBM Lawyers & American English - Authored by: atrypa on Monday, December 13 2004 @ 09:15 AM EST
- IBM Lawyers & American English - Authored by: PJ on Monday, December 13 2004 @ 03:36 PM EST
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Authored by: TToni on Monday, December 13 2004 @ 05:24 AM EST |
I'm a little bit confused about SCO's strategy (aren't we all?) to introduce
documents obtained from IBM during discovery through declarations of people who
reviewed them.
Is that common practice? It looks so complicated. If, for example, they
discovered something incriminating in IBM's documents, why not cite it directly
in their motions? Why take the detour through declarations?
In fact I can't remember any citation from discovered material in any motion in
this case. Why not? Is it forbidden? In that case SCO's procedure would make
some sense.
TToni[ Reply to This | # ]
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Authored by: Ian Al on Monday, December 13 2004 @ 05:58 AM EST |
I could not read the court stamp that gives the date of registration of the
document, but the other dates in the pdf seem to suggest early September.
I appreciate the need to get the judge's declarations absolutely right, but I do
wonder what the delay on counter claim 10 is.
Still, I cannot give a personal or an expert opinion on the matter, so how about
this;
For what we are now permitted to ignore, may we be truly thankful.
---
Regards
Ian Al[ Reply to This | # ]
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Authored by: fudisbad on Monday, December 13 2004 @ 06:16 AM EST |
Is that it is not excessively overlength and is straight to the point!
---
FUD is not the answer.
FUD is the question.
The truth is the answer.[ Reply to This | # ]
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Authored by: Anonymous on Monday, December 13 2004 @ 06:43 AM EST |
PJ asked for comments regarding the footnote placement used in this
transcription. I think that for long documents (and the EU vs Microsoft case
will produce long documents if only because European judges cannot say 1
word when 10 will do) this is a good format to use, I do not like having to
bounce backwards and forwards through the document to find the referenced
footnotes. For short do documents the other format (footnotes at end) is
preferable. All of this is of course IMHO, and I'm not going to stop reading
Groklaw just because PJ uses the "wrong" format. [ Reply to This | # ]
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- Footnotes - Authored by: Anonymous on Monday, December 13 2004 @ 06:51 AM EST
- Footnotes - Authored by: Anonymous on Monday, December 13 2004 @ 07:13 AM EST
- Footnotes - Authored by: Anonymous on Monday, December 13 2004 @ 07:28 AM EST
- Footnotes - Authored by: Anonymous on Monday, December 13 2004 @ 07:28 AM EST
- Footnotes - Authored by: pesc on Monday, December 13 2004 @ 07:29 AM EST
- Footnotes - Authored by: Anonymous on Monday, December 13 2004 @ 08:23 AM EST
- Footnotes - Authored by: LarryVance on Monday, December 13 2004 @ 07:54 AM EST
- Footnotes - Authored by: Anonymous on Monday, December 13 2004 @ 08:19 AM EST
- Was confusing - Authored by: Anonymous on Monday, December 13 2004 @ 08:21 AM EST
- Proposed approach to docs with footnotes and appendices. - Authored by: cheros on Monday, December 13 2004 @ 08:36 AM EST
- Footnotes - Authored by: john82a on Monday, December 13 2004 @ 08:46 AM EST
- Footnotes - Authored by: Anonymous on Monday, December 13 2004 @ 08:56 AM EST
- Footnotes - Authored by: Anonymous on Monday, December 13 2004 @ 09:11 AM EST
- Footnotes--Frames? - Authored by: spuluka on Monday, December 13 2004 @ 09:32 AM EST
- Footnotes - Authored by: joef on Monday, December 13 2004 @ 10:00 AM EST
- Footnotes - Authored by: Observer on Monday, December 13 2004 @ 10:00 AM EST
- Footnotes - Authored by: bstephan on Monday, December 13 2004 @ 10:10 AM EST
- Footnotes - Authored by: Anonymous on Monday, December 13 2004 @ 11:01 AM EST
- Inline Frames? (Shudder) - Authored by: Anonymous on Monday, December 13 2004 @ 11:11 AM EST
- No IFRAME please - Authored by: Anonymous on Monday, December 13 2004 @ 12:33 PM EST
- Footnotes - Authored by: Anonymous on Monday, December 13 2004 @ 01:05 PM EST
- Lynx and other text browsers - Authored by: tgf on Monday, December 13 2004 @ 01:37 PM EST
- Footnotes - Authored by: Anonymous on Monday, December 13 2004 @ 02:07 PM EST
- Footnotes - Authored by: Anonymous on Monday, December 13 2004 @ 04:10 PM EST
- Even better idea ;) - Authored by: nils on Monday, December 13 2004 @ 10:07 PM EST
- Footnotes - my 2 cents - Authored by: Night Flyer on Monday, December 13 2004 @ 11:41 PM EST
- I REALLY liked it this way. - Authored by: Anonymous on Tuesday, December 14 2004 @ 12:05 AM EST
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Authored by: brian on Monday, December 13 2004 @ 06:59 AM EST |
So does the judge rule on striking or does he go for the
direct ruling on the summary judgement? In other words,
does he have to rule on striking *BEFORE* he can rule on
the CC or just go for the throat?
B.
---
#ifndef IANAL
#define IANAL
#endif[ Reply to This | # ]
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Authored by: OK on Monday, December 13 2004 @ 08:28 AM EST |
Mr. Gupta testifies that his statements were "based on documents that were
compiled by members of the SCO team and which I read and
reviewed"
How nice it is to review the documents of one side only
(documents prepared by lawyers representing your own side???), and then testify
about the subject under oath.
--- The one I was... [ Reply to This | # ]
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Authored by: seantellis on Monday, December 13 2004 @ 08:41 AM EST |
Having read the final footnote, I could not help but find amusing the fact that
SCO are now using as precedent cases brought by Scientology, that well-known
moderate, thoughtful and successful litigator.
---
Sean Ellis (sellis@geo-removethis-cities.com)[ Reply to This | # ]
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Authored by: spuluka on Monday, December 13 2004 @ 09:11 AM EST |
Were there any oral arguments on this motion? I don't see any reference to this
in the report on the September hearing, and we don't have a transcript.
---
Steve Puluka
Pittsburgh, PA[ Reply to This | # ]
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Authored by: prhodes on Monday, December 13 2004 @ 09:43 AM EST |
From the first full paragraph on p9:
"SCO is wrong."
Kinda sums up the whole case right there, doesn't it?
-Phil
[ Reply to This | # ]
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Authored by: niko on Monday, December 13 2004 @ 09:44 AM EST |
When will we see that freaking code? I don't want word games and stuf like that.
I want the code and to be over with!
---
Dintre sute de catarge care lasa malurile, cate oare le vor sparge vanturile,
valurile ...[ Reply to This | # ]
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Authored by: Anonymous on Monday, December 13 2004 @ 10:29 AM EST |
9 IBM also moved to strike, as extraneous documents, 11
exhibits (Exs. 24, 25A, 33, 36, 42, 50, 51, 61, 63, 65, and S-3) that were
attached to SCO's opposition to IBM's summary judgment motion but that were not
referenced anywhere in SCO's brief or in any of the witness declarations
submitted by SCO. As SCO offers not response to IBM's request, these materials
should also be stricken.
If there is one thing that I learned
by reading through PJ's commentary over the years, it was that being thorough
was crucial. If you left anything out anywhere along the way, you lost
that point.
I would love to get into the mind of a SCO lawyer at the moment,
to see what those guys are really thinking, right now. They are pretty much
required to fight the battle, and to do their best possible job while doing so
(otherwise, they have failed their client and, indirectly, the entire legal
system).
So, did they intentionally abandon these attachments, or was this an
oversight on the part of the SCO legal team?
I guess that we will never know,
but I, for one, would love to hear the real perspective of the SCO legal team on
this lawsuit, uncluttered by their responsibility to their client. It will
never happen, of course, I can only imagine how much things like this have got
to hurt. [ Reply to This | # ]
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Authored by: Anonymous on Monday, December 13 2004 @ 10:32 AM EST |
Actually, it would help if the footnotes were in a different font or a different
color. I found myself reading a footnote as if it were a continuation of the
text.[ Reply to This | # ]
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Authored by: blacklight on Monday, December 13 2004 @ 10:37 AM EST |
Oh well. My summary was always as follows:
(1) The Sandeep Gupta declaration should not be admissible because he never
tried to validate his assertion that he found six instances of UNIX to Linux
code copying with an abstraction/filtration test. To admit this declaration is
to imply that there is a legal weight to his assertions when there is none.
(2) Chris Sontag is no expert on IBM's CMVC and especially on how IBM actually
uses its CMVC.
In other words, neither of the dyamic duo knows enough to contradict and thus to
create conflicts of fact. If SCOG wants to make declarations that have any
weight about UNIX copying and how IBM uses its CMVC, it is well within SCOGs
resources to hire themselves some real subject matter experts and comply with
the rules of evidence instead of gaming them.
[ Reply to This | # ]
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Authored by: Anonymous on Monday, December 13 2004 @ 10:55 AM EST |
Translation: Holy Cow!
IBM's lawyers: "A careful review of Celotex, however, reveals that SCO has
invented this holding whole-cloth."
Did they really say what I think they just said?
Can't wait for PJ's analysis of this one.
JG
[ Reply to This | # ]
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Authored by: Anonymous on Monday, December 13 2004 @ 11:07 AM EST |
Bailey wrote a fiction book (was it Secrets?) where the young lawyer took
on the opposition's expert witness and had him tossed out of the witness box.
The rest of the defense team told her something like, "Knocking a witness off
the case is the last lesson, not the first!"
Seems like a favorite tactic
fighting SCO in court. First Daimler Chrysler knocked SCO clean back to Utah.
(That was the first legal motion I asked my daughter to read.) Then IBM looks
like it's taking batting practice with SCO's witnesses on CC10.
Now if only
the judge would give us the delayed sound effect with this and the PSJ, we could
all enjoy listening to another solid "whack" for Christmas! [ Reply to This | # ]
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Authored by: Anonymous on Monday, December 13 2004 @ 11:29 AM EST |
SCO is all over the board, sometimes arguing contradictory points, on many
different and complex issues. Perhaps at this point the judge would like to
do a
summery judgement, but the bar is so low for SCO to avoid or appeal that
he
may not wish to. Certainly if he did and then an appellet judge remanded
the
mess back to him, he would simply be stuck where he was before. What a
horrible thought that must be for him.
I am sure what he would like to do
is something like what happened in the DC
case, where the case was considerably
narrowed to a reasonable set of issues
(well, in that case, reduced to almost
none). However, each time it looks like
the case can be narrowed, SCO ammends
and changes their complaint into
something new. That
must be particularly
frustrating for the judge.
The problem then I think is not so much on
whether to rule on the PSJ or not,
but rather how to reach a partial ruling
that actually wipes most of the side
issues out and allows for possible trial
"this century", something SCO of
course does not want. Perhaps IBM can help
here a bit
by narrowing the scope a bit on their motion to dismiss or through
supplimental motions to offer more options for further narrowing the case,
though IBM has tried this before only to see SCO evolve and modify their
complaint each time. Certainly the case that SCO has cobbled together and
morphid and wish to have Boies wow jurers with would not be presentable to
a
non special master jury trial in any manner that would permit realistic jury
instruction by the
judge or actual justice to function, and I am sure the
judge is quite aware of
this as well and has no illusions about SCO's motives
in that respect.
In short I really feel for the judge...
[ Reply to This | # ]
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Authored by: mitphd on Monday, December 13 2004 @ 12:58 PM EST |
While IBM's PSJ might be a difficult decision for the judge, (given the high
standard for granting a PSJ), why is this Motion to Strike so difficult to
decide?
The Motion to Strike has been fully briefed since October. Are there deep legal
or factual questions for Judge Wells to ponder in this decision? For the life
of me, I can't see what they would be. Any ideas?[ Reply to This | # ]
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Authored by: Anonymous on Monday, December 13 2004 @ 01:05 PM EST |
It's very hard to win a motion for summary judgment, in other words,
because
the judge is obligated to accept all facts presented by the
nonmovant. SCO in
this picture is the "nonmovant" whose evidence must be
believed in a summary
judgment action, so if IBM can simply remove all the
declarations, what
evidence is there that is left to believe? Exactly. So, doesn't that mean
that the judge's decision about the motion to
strike would have to come before,
or at the same time as, his decision about
PSJ 10 itself? Do you think we might
see a decision on the motion to strike
earlier? [ Reply to This | # ]
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Authored by: Anonymous on Monday, December 13 2004 @ 01:28 PM EST |
Wouldn't it be best to go to the original source that supplied the quotation
(the one that the secondary source bracketed)?
[ Reply to This | # ]
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Authored by: Anonymous on Monday, December 13 2004 @ 01:54 PM EST |
"A careful review of Celotex, however, reveals that SCO has invented this
holding whole-cloth. In Celotex, the Supreme Court merely recited the procedural
history of the case, noting that the respondent, before the district court, had
submitted three documents in opposition to summary judgment to which the
petitioner had objected on the grounds that they contained inadmissible hearsay.
The Supreme Court spoke no further on these documents and certainly did not rule
on whether the documents did constitute hearsay, or whether they were properly
admitted."
Funny thing.
Reminds me of people who sue somebody,
signing their legal papers "John Doe, Emperor of China", and when their case is
tossed out by the court, they have court documents addressing them as "Emperor
of China" and start claiming that a court has affirmed their claim to the
Chinese throne.
Don't laugh - there's a bunch of right-wing activists
here in Germany who try to pass themselves off as "exiled government of the
German Reich, affirmed by the Berlin State Court" using the technique described
above.
And an infamous German lawyer used this method to claim that
"HTML is a programming language" based simply on the fact that a defendant
denoted himself as "author of a book on HTML programming" which, according to
said lawyer, means the court "acknowledged and decided that HTML is a
programming language".
Just interesting to note SCO used a similar
tactic, trying to pass off mere quotations by the court as "court findings".
[ Reply to This | # ]
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Authored by: Anonymous on Monday, December 13 2004 @ 02:15 PM EST |
If, as SCO claims, it was a-symetric multi-processing and the file journaling
system that were what put SCO in a tither to begin with. Wouldn't it be
relatively simple to identify the methods and processes from the Unix system
that IBM copied into Linux rather than have to look at all of Unix and Linux?
Then they could say this and this and this, with specifity, were lifted from
Unix and applied to Linux in violations of trade secrets and contracts, and is
evidence that IBM copied even more stuff, and they might have a leg to stand on
in their suit. How come these people aren't thinking? Couldn't they find
anything?[ Reply to This | # ]
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Authored by: blacklight on Monday, December 13 2004 @ 03:27 PM EST |
"Second, SCO argues that a party opposing summary judgment is entitled to
relaxed evidentiary standards and may disregard the prohibition against
presenting hearsay newspaper articles in opposing summary judgment." IBM
pleading
One reason newspaper articles are in general considered hearsay is that they are
essentially unsworn documents. Lest Darl the Snarl believe that he gets away
with all these flowery newspaper quotes, it's probably not that hard to get an
affidavit from a reporter saying "Oh yes, he said that to me!" and
hopefully, "I've got his entire statement on tape" or "I've still
got my notes and that's why I quoted him".[ Reply to This | # ]
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Authored by: inode_buddha on Monday, December 13 2004 @ 04:38 PM EST |
It might also be called "Jiu-Jitsu"
---
"When we speak of free software, we are referring to freedom, not price." --
Richard M. Stallman[ Reply to This | # ]
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Authored by: Anonymous on Monday, December 13 2004 @ 05:06 PM EST |
This is just so really bizarre. Tibbits, who was probably at Caldera and was
certainly at Lineo and Canopy, probably could testify about such things from
personal knowledge. Why hasn't he stepped forward? Is he still involved in the
case, or did Yarrow yank him out, having read the handwriting on the wall?
Or did Tibbits involvement in Lineo indemnity plans and tools and various
partner agreements, board decisioons, etc taint him? Too weird![ Reply to This | # ]
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Authored by: WildCode on Monday, December 13 2004 @ 05:48 PM EST |
Reading PJ's comments and IBM's disection of SCO filings, it has me wondering
who is working on SCO's side, experienced lawyers, or a bunch of 1st year law
students.
The flaws in SCO's filings and quotations, to me, seems to show either
inexperience, or arrogance towards the legal system and its traditions.
Surely the legal firm representing SCO can see that this is damaging their
reputation.
It also has me wondering if SCO told them to win no-matter what. As it seems
some basic legal fundermentals have been ignored, including evidence (unless the
U.S legal system has removed the rules of evidence recently).
(All typos are mine)[ Reply to This | # ]
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Authored by: Anonymous on Monday, December 13 2004 @ 06:54 PM EST |
is to not sue. This is the lesson SCO will learn in this case, no doubt about
it. Once all the SCO claims are dealt with, IBM's counterclaims will make sure
SCO are converted into a finely ground powder.
And, they are bound to make complete fools of themselves in the process ;-)[ Reply to This | # ]
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Authored by: StLawrence on Monday, December 13 2004 @ 07:22 PM EST |
According to SCO's current website, here are the names of
the individuals
responsible for the management and direction
of The SCO
Group:
Darl C. McBride, President & CEO,
Director
Chris Sontag, Senior VP & GM of SCOsource
Division
Bert Young, CFO
Ryan E. Tibbetts, General
Counsel
Jeff Hunsaker, Senior VP & GM of UNIX Division
Reg
Broughton, Senior VP
Alan Raymond, VP
Ralph J. Yarro
III, Chairman of the Board
Edward E. Iacobucci,
Director
Darcy Mott, Director
Thomas P. Raimondi, Jr.,
Director
R. Duff Thompson, Director
K. Fred Skousen,
Director
Daniel W. Campbell, Director
Inquisitive Googlers are
referred to http://www.groklaw.net for
complete information on the
results of the
management of SCO by these individuals.
The Internet has a
long memory.
[ Reply to This | # ]
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Authored by: Franki on Monday, December 13 2004 @ 09:54 PM EST |
After reading all of this for the past year or so, I have to say that SCO's
lawyers are (were) respected in their respective fields, and yet they have made
mistake after mistake in all the relevant cases, and made it exceptionally easy
for the opposing party to tear them to strips. This leads me to a few possible
conclusions.
1. SCO doesn't expect to win, they are only here to waste IBM money on legal
defence and create FUD for Microsoft about Linux to give them a chance to think
of some way to block it.
2. SCO's lawyers are secretly working for IBM and are making dozens of sloppy
filings intentionally.
3. SCO expected to win, but it's lawyers never did, as evidenced by the fact
that David Boies hasn't played much of a part in this case. Money is money and
the lawyers get paid either way, so why not just take the cases, drag them out
as long as possible and clean SCO out? (and don't drag David's name though the
mud by not mentioning him anywhere.)
Has SCO one anything substantial in any of their cases thus far?
Rgds
Franki
---
Is M$ behind Linux attacks?
http://htmlfixit.com/index.php?p=86[ Reply to This | # ]
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Authored by: Anonymous on Monday, December 13 2004 @ 11:59 PM EST |
Thank you PJ, for creating a realm where discourse over square brackets and
parenthesis can be discussed civily with care and affection. As if they are
important and they do matter. Where footnote style invites impassioned pleas.
Groklaw is more than a legal education. It is more than an English lesson. It
is like the best of lessons, it is English in the making. You often remind me
why the word court is in the word courtesy.[ Reply to This | # ]
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Authored by: SilverWave on Wednesday, December 15 2004 @ 05:58 PM EST |
*Hate!* footnotes Placement - *Love Article :-)
A noble experiment…
…but I’m sorry to say it does not work, I find it very disruptive.
Including a link is easer.
---
Linux used ideas from MINIX
MINIX|UNIX
UNIX|MULTICS
MULTICS|CTSS
CTSS|FMS
In science, all work is based on what came before it.
Andy Tanenbaum, 6June04[ Reply to This | # ]
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