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Novell's Intriguing Exhibit A: Greyhound Financial Corp. v. Willyard |
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Sunday, June 10 2007 @ 02:52 PM EDT
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If you'd like to see a ruling in a case that is worse than the SCO
litigation, this is your chance.
Novell attached a 4-part exhibit,
the longest ruling I've seen in quite a while, maybe ever. It's
a 1989 ruling by the court on 86 motions simultaneously. Yes. A Utah case, although it started in Arizona. It's a civil RICO and mail/wire fraud case, I gather from what I've read so far, with a complicated fact pattern with multiple causes of action, multiple parties, including some folks who already had gone to jail or were then incarcerated, but mainly trying to determine who else helped them with the complex fraud. There were almost 400 depositions taken in the litigation. One guy had been deposed for 73 days (his deposition transcript totaled 10,420 pages -- imagine us paying for that!), which may have seemed worse to him than the jail time, I reckon, and in short very little of the case's ruling applies to the SCO v. Novell situation, so far anyway, but one small section does, which should tell you why lawyers love services like Westlaw's, which do searchable databases that make it possible to find that nugget you need without having to read 100 pages of a ruling first.
The case was used
by Novell to support its most recent evidentiary objections [PDF], which
you read about in the previous article, in the section on witnesses being required to have personal knowledge. Here's the brief use of the case by Novell, on page 4 of the PDF: B. Lack of Personal Knowlege. Admissable evidence must be based on a witness's personal knowledge rather than mere speculation....Argo v. Blue Cross & Blue SHield of Kan., Inc.,...(upholding trial court's refusal to consider portions of a declaration lacking personal knowledge, stating "[u]nder the personal knowledge standard, an affidavit is inadmissible if the witness could not have actually perceived or observed that which he testifies to.... Accordingly, at the summary judgment stage, 'statements of mere belief' in an affidavit must be disregarded"... (pursuant to Rule 56(c), affidavits must be made on the personal knowledge of the affiant and must show that the affiant possesses the knowledge asserted). The same personal knowledge requirement applies to deposition testimony and other forms of evidence approved for use on summary judgment by Rule 56(c). Greyhound Fin. Corp. v. Willyard, No. 87-C-0911B, 1989 WL 201094, at *48 (D. Utah Dec. 26, 1989) (Exhibit A hereto). District courts should disregard a declaration that is contrary to a deposition statement "when they conclude that [the declaration] constitutes an attempt to create a sham fact issue." Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986). Why Novell chose to attach just this one case, I don't know. Maybe they found the case hilarious, just as I do, and wanted to show it to Judge Kimball to give him a laugh. Or, more likely, it is the best case they found to prove the above points. Maybe a little of both. I found the underlining interesting, though, as it is clear someone on the Novell side has been researching mail fraud, but whether in another case or this one, I obviously have no idea. I suppose it could just be that they underlined it for another case and then used it here too, perhaps because of being pressed for time. I do note that the case involved mailing of bogus invoices, among other things, and that most of the underlining is in the section in Part 1 of the exhibit, about what constitute the elements of an aiding and abetting claim in mail fraud.
Whatever the reason Novell included it, I'm enjoying reading it and I thought you would too, as you will see a judge who
has had it with the lawyers filing so many motions, but who never loses his self-control or his ability to keep on top of the litigation. Here are the four parts: I'll do the introduction as text for you, because it will put the SCO litigation into perspective for you.
Here's how Judge Broomfield's Memorandum and Order begins, and it's by now four years into this litigation, with the parties at the summary judgment phase, just like in SCO v. Novell and SCO v. IBM, but with discovery not yet finished in all areas. They've been having monthly status conferences for two years now, to handle various motions, and at this point in time the court has already decided 300+ motions and issues raised by the parties. It's been somewhat rancorous, and several parties on both sides have already hinted that they intend to seek sanctions at the end of the voluminous litigation. And with that backdrop, here Judge Broomfield begins dealing with the remaining 86 motions:
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Memorandum and Order
BROOMFIELD, District Judge
On August 21, 1989, through August 25, 1989, the court heard various defendants' motions for summary judgment and related motions to strike. After extensive briefing and argument by the parties, and after a preliminary review of the material by the court, the court took all of these matters under advisement. The following memorandum and order decides all issues pending before the court, including previous motions for summary judgment and partial summary judgment filed by some of the defendants that remained under advisement at the time of the August hearings. Any remaining issues to be decided by the court at this stage of the litigation may be raised by the parties at a status conference set by the court at the conclusion of this memorandum and order.
I. Introduction
This court has worked with many attorneys on this case since the inception of both this litigation and the court's tenure on the federal bench in the late Summer of 1985. At the present time of the filing of this memorandum and order, almost 5,000 separate docket entries are listed in the Clerk of the Court's docket sheet for this case. This represents an estimated 120 linear feet of paper filed by the parties, all of which is presumably part of the record before the court at the present time. After extensive Rule 12 motion practice by defendants, several amendments to the pleading by plaintiffs, transfer of this action to the District Court for the District of Utah, and voluminous discovery practice by all sides, the court is now presented with defendants' Rule 56 motions and various motions to strike which related to them. In toto, there are eighty-six motions before the court. The court will not attempt to estimate the height of the parties' motion papers except to say that the volume represents a considerable obstacle to the prompt and judicious determination of the pending motions.
However, it is an obstacle which the court must surmount both to maintain the integrity of the judicial system and in an effort to eventually resolve the parties' disputes. The court is able to complete this task only after careful consideration of the parties' positions on the facts and the law and after applying an ample dose of common sense. In this latter vein, the court will attempt to avoid further restriction of the Clerk of the Courts file drawers by limiting this memorandum to only those issues which necessarily must be discussed to resolve the pending motions. While it may have been perceived by many of the parties that their interests were best served by inundating the court with papers, this method of practice ends with the filing of this memorandum and order.
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Authored by: Jadeclaw on Sunday, June 10 2007 @ 03:03 PM EDT |
Please state the type of error in the title.
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Best regards
Jadeclaw.
[ Reply to This | # ]
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Authored by: Jadeclaw on Sunday, June 10 2007 @ 03:06 PM EDT |
Place all your offtopicy goodness here
and make links clickable as suggested.
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Best regards
Jadeclaw.
[ Reply to This | # ]
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- "an estimated 120 linear feet of paper" - Authored by: tiger99 on Sunday, June 10 2007 @ 03:18 PM EDT
- 'Stubborn' PC owner takes on Gateway - Authored by: Jadeclaw on Sunday, June 10 2007 @ 03:22 PM EDT
- they said it... - Authored by: Anonymous on Sunday, June 10 2007 @ 07:57 PM EDT
- The Beeb is not totally clueless on F/LOSS - Authored by: wood gnome on Monday, June 11 2007 @ 04:50 AM EDT
- clicky - Authored by: Bart van Deenen on Monday, June 11 2007 @ 04:56 AM EDT
- clicky - Authored by: Anonymous on Monday, June 11 2007 @ 05:14 PM EDT
- Linus might go GPL 3 - Authored by: gormanly on Monday, June 11 2007 @ 05:26 AM EDT
- a rambling gripe... - Authored by: warner on Monday, June 11 2007 @ 05:46 AM EDT
- Understanding the Negative Effects of Legal Education on Law Students - Authored by: JamesK on Monday, June 11 2007 @ 07:27 AM EDT
- Ahem. Today's fortune seems unusually appropriate for the SCO cases. - Authored by: Aladdin Sane on Monday, June 11 2007 @ 09:00 AM EDT
- Thanks, PJ - Authored by: theMutant on Monday, June 11 2007 @ 12:42 PM EDT
- May 31 Hearing - Authored by: Superbiskit on Monday, June 11 2007 @ 02:35 PM EDT
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Authored by: tiger99 on Sunday, June 10 2007 @ 03:24 PM EDT |
My reading of this is that it may have nothing to do with any point of law in
the case as such, but Novell are simply presenting it as precedent for a judge
putting an abrupt end to the amount of waste paper being generated, and maybe
giving Judge Kimball a solid precedent for doing what I am sure he has wanted to
do for some time. So SCOX will be rising, as always, before a major setback in
court. [ Reply to This | # ]
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Authored by: Anonymous on Sunday, June 10 2007 @ 03:59 PM EDT |
so, for starters... the judge said that inundating the court with papers is akin
to obstaclising the normal course of justice ?
[ Reply to This | # ]
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Authored by: Steve Martin on Sunday, June 10 2007 @ 05:28 PM EDT |
Maybe they found the case hilarious, just as I do, and wanted
to show it to Judge Kimball to give him a laugh.
I
dunno... IANAL, but if I were Kimball, I might shudder at the thought of having
to read a 100-page ruling memorandum, then read enough of the background of the
cited case to know whether or not the case cited is on point, then finally try
to match it up with what's happening in his courtroom. I doubt it will give him
any laughing fits any time soon. :)
--- "When I say something, I put
my name next to it." -- Isaac Jaffee, "Sports Night" [ Reply to This | # ]
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Authored by: Fogey on Sunday, June 10 2007 @ 05:31 PM EDT |
PJ, I'm wondering about the underlining you mentioned. I didn't see anything but
case citations underlined. Is that something Novell's lawyers did, or just links
to the cases in the Westlaw database? If you hadn't mentioned it, I would have
just assumed it was hypertext. In fact, I tried to click on one of them.(blush)
Doesn't work very well in a PDF.
---
Old age and treachery ALWAYS
beats Youth and enthusiasm![ Reply to This | # ]
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- Underlining - Authored by: Anonymous on Monday, June 11 2007 @ 05:39 AM EDT
- Underlining - Authored by: PJ on Monday, June 11 2007 @ 05:04 PM EDT
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Authored by: Anonymous on Sunday, June 10 2007 @ 05:42 PM EDT |
Need there be more said [ Reply to This | # ]
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Authored by: Anonymous on Sunday, June 10 2007 @ 07:15 PM EDT |
Just curious.
[ Reply to This | # ]
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Authored by: Anonymous on Sunday, June 10 2007 @ 07:37 PM EDT |
She has no personal knowledge about the APA, has she? [ Reply to This | # ]
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- It shouldn't be. - Authored by: Anonymous on Sunday, June 10 2007 @ 08:19 PM EDT
- Negotiator - Authored by: Anonymous on Sunday, June 10 2007 @ 08:30 PM EDT
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Authored by: wordsofwonder on Monday, June 11 2007 @ 12:34 AM EDT |
Am I the only one who can't help but wonder if the fact that Novell's
attorneys are researching mail fraud might not be perhaps more significant to
the present case? I wonder if there would be any precedent for classifying
SCOSource demand letters -- "pay us a bunch of money for something we won't even
prove we own" -- as attempts to commit fraud, and proceeding from
there.
I found a
definition of mail fraud online that cited the following essential showings
that must be made to prove the offense:
- That the statement is
false;
- That it was made with the intention it should be relied
on;
- That it was made for the purpose of securing money or
property;
- That the statement was delivered by mail;
- That money
or property was obtained by means of the false statement.
I'm
not sure how proving that SCO's conduct was fraudulent would help Novell in
their civil case, though. Anyone? [ Reply to This | # ]
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Authored by: Night Flyer on Monday, June 11 2007 @ 12:44 AM EDT |
If SCO sent out 1,500 warning letters (SCOsource), and they knew that the claims
were based on a shaky or nonexistant premise, isn't this in the mail fraud
category?
I always interpreted these letters as SCO saying "Pay us 'protection money'
or else".
I think Novell wants the judge to think along the lines of mail fraud on top of
everything else.
---
Veritas Vincit - Truth Conquers[ Reply to This | # ]
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Authored by: Filias Cupio on Monday, June 11 2007 @ 01:36 AM EDT |
I skimmed parts 1 and 4 of the exhibit.
A businessman named Player had many dealings. Among these, he would get a
finance company, GFC, to buy equipment and lease it to him. GFC did not buy the
equipment directly, but rather Player did, and then sent them the invoices, and
GFC paid him back. Player (and associates) were committing fraud, as most of
this equipment which GFC was invoiced for, and believed it owned, never existed.
Eventually GFC found out about this in an audit, and Player was imprisoned for
fraud.
This case is GFC going after a whole bunch of Player's other business contacts,
alledging that they knew of Player's fraud, and profited by it, thus were
co-conspiritors under RICO. (E.g. they loaned Player money, which he then repaid
by fraudulantly obtaining it from GFC.) Many, but not all, of the defendents got
summary judgement in their favour as GFC could not establish any (possibly
disputed) fact that they knew about the fraud.
The quantity of money being claimed by GFC was on the order of $80 million.
IANAL.[ Reply to This | # ]
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- Defendants - Authored by: Anonymous on Monday, June 11 2007 @ 11:46 PM EDT
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Authored by: camc on Monday, June 11 2007 @ 01:36 AM EDT |
In part 2, page 33 of the whole, 13 of 20 of part 2, section V Motions to
Strike, subsection A Standards ..., end of second paragraph discussing rule
56(e): " ... ex parte affadavits, which are not admissible at trial, are
appropriate on a summary judgement hearing to the extent they contain admissible
information."
Question 1. What does "ex parte" mean here?
Question 2. How can admissible information for a summary judgement motion not be
admissible at trial?
Question 3. There have been lot of declarations that appear to be useless or
irrelevant or worse, and not likely to be admissible at trial. Does that mean
Judge Kimball will still have to write a paragraph or two about each of these
individually explaining why they aren't relevant for a summary judgement
decision?
Question 4. What sort of clerical help does a judge typically get in drafting an
order such as the 79 pages of two column text that Judge Broomfield issued? I
can't imagine someone writing that all out in longhand, and even thinking about
proofreading it after someone else has typed it up gives me the shudders.
[ Reply to This | # ]
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Authored by: Anonymous on Monday, June 11 2007 @ 08:34 AM EDT |
Anyone game to see wether this ruling stood up over time, or was appealed,
overturned, set aside (IANAL)?[ Reply to This | # ]
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Authored by: phrostie on Monday, June 11 2007 @ 09:20 AM EDT |
Mail fraud, like all the letters SCOG sent out?
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=====
you can fool some of the people all of the time.
you can fool all of the people some of the time.
it's setting them straight that is %$@
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Authored by: Anonymous on Monday, June 11 2007 @ 12:23 PM EDT |
So.... does this citation mean that Novell gets to have all those stupid
depositions by those who had nothing to do with the negotiations (e.g. Darl et
al) thrown out? [ Reply to This | # ]
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Authored by: Anonymous on Monday, June 11 2007 @ 03:00 PM EDT |
Did SCO Group send out the letters before they found the amendment 2 in the
bottom of a filing cabinet? Yes.
Before they found amendment 2, they had abosolutely no answer to the
"copyrights are excluded" from the APA.
Now, amendment 2 doesn't transfer any copyrights but it seems to me that Darl
could try to avoid mail fraud charges by saying he believed with all his heart
that it did.
Does it work that way? Even if Novell continued to dispute the claim with them
in December 2003 when they sent the letter? [ Reply to This | # ]
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Authored by: Anonymous on Monday, June 11 2007 @ 03:51 PM EDT |
To remove her speculation about the motive of Novell's copyright announcement
from the arguments.[ Reply to This | # ]
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Authored by: Anonymous on Monday, June 11 2007 @ 04:57 PM EDT |
Does that suddenly alter the laws of physics?
Let's see.... Novell has
plenty of people who were actually involved testifying the copyrights were not
transferred.
SCOG has plenty of people who were not involved testifying
the copyrights were included.
It's almost as if SCOG and BSF believe: if
enough people say it, it must be true.
RAS[ Reply to This | # ]
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- Tactics - Authored by: Anonymous on Tuesday, June 12 2007 @ 12:38 PM EDT
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