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SCO's Motion in Limine - Shh! Don't Tell the Jury About IBM or "Commentary Thereon"
Saturday, August 25 2007 @ 03:48 AM EDT

SCO's one motion in limine [PDF] it has filed so far that is not sealed is a remarkable one. It would like the court to order Novell, its representatives and its witnesses not to speak about the IBM litigation or any commentary about it to the jury. "Commentary" would be us Groklaw chickens and, SCO claims, "other similar websites". Son, there aren't any websites like Groklaw. None. It's why Groklaw wins the awards. It's something brand new. Here's what SCO says about the need to white out the IBM litigation:
3. Any probative value in such evidence would be substantially outweighed by the danger of unfair prejudice to SCO. The fact alone that a separate lawsuit is pending, in which SCO's rights or obligations arising from the operation of its Unix and UnixWare business is questioned, may improperly prejudice the jury, or cause the jury to scrutinize the credibility of SCO's evidence and witnesses for reasons unrelated to the dispute before them.

Questioned? Is that a big enough word? I'll say the jury may just scrutinize SCO's credibility. Aren't you?

Anyway, it seems Groklaw is so potent, one must not mention it to any jury members ever, ever, ever. It would like the judge to warn all Novell's witnesses not to breathe a word. I can't wait for the voir dire. "Are you now or have you ever been a reader of Groklaw?"

Kidding. I think frankly they are too. I can't imagine any conceivable scenario where Groklaw would ever come up in any way. It's just ridiculous. And is there a person left in Utah who hasn't heard about the IBM litigation that SCO itself initiated with unbelievable fanfare?

I seriously doubt it. Remember those notebooks of news clippings Robert McMillan reported SCO's CEO proudly took on stage at SCOforum in August of 2003?

However, SCO's public relations (PR) department has had a busy few months. McBride proudly dumped two phone-book-sized binders of press clippings on the stage during his SCO Forum keynote on Monday as proof that his company had become more relevant in the high technology industry. SCO has issued 46 press releases since filing suit against IBM on March 7. Last year it issued only 29 press releases between March and August.

Then SCO enshrined the notebooks, plus some additional notebooks, in the SCO lobby:

In the ascetic waiting room of the SCO Group's Lindon, Utah, headquarters, the only reading matter is a stack of beige, telephone-book-sized binders. They are volumes I, II, III, and IV of the company's press clippings. For the previous month.

So Utah already heard about the IBM litigation, and from SCO's own lips. SCO would like the jury not to be "prejudiced" by hearing another side of the story now. And as for Groklaw, it was SCO itself that made a big deal of Groklaw to the media. To the court, too, now that I think of it. They probably wish they could take it all back now. Is this perhaps some weirdo setup for an appeal? Nothing is too far-fetched to at least consider, judging from the past. An appeal because someone mentioned Groklaw? Man, I didn't know our own strength. I know. The whole thing is silly. But they clearly are using Groklaw with some strategy in mind. So in that sense, it's not silly. Just cynical. They have to know by now Groklaw isn't biased. It was right.

And just so they know: I'm a little sick of them pretending it is biased or anti-SCO. I'm a little sick of friendly journos repeating SCO's descriptive phrases and insulting remarks about Groklaw practically word for word, too, if you've noticed the game being played, so SCO can use it in court later to "prove" what it claims about Groklaw. Or pretends to.

You'd think the judge's recent order would have hit them all with a cluestick that if there is any bias in this picture, it's really on their side of the fence and it has been from day one. Groklaw tried to warn SCO literally for years, privately and publicly, that what just happened to them would likely happen to them. They wouldn't listen. I publicly invited SCO to present its side of the story on Groklaw if they wished to. They never did. You know why? I think it's because SCO was so prejudiced against Groklaw and was so anti-Groklaw, it just couldn't take what we said seriously.

Over and over they have called Groklaw biased because we said we thought they would lose. But they did lose. We knew the code, we knew the history of both Unix and Linux, we understood the GPL, and we knew the law, as a group, and we researched the claims, and we called it right. That's not bias. That's expertise. I have always bent over backwards to be fair to SCO, actually. Not that they notice, but I have. But if I think their claims have no merit, after researching them as carefully as we have here, I write it the way I see it. But I also present all the materials we've collected so you can reach your own conclusions. And that's all Groklaw has ever done. That's not even anti-SCO. It all came true, after all. Unless Judge Kimball is secretly a committee of IBM lawyers.

: )

Since at this point there is substantial question as to whether there is going to be a jury, I suspect SCO mentions Groklaw mainly because it is afraid the judge might be reading it, since they have been mentioning it over and over, and they'd like to tell him that they think Groklaw is "biased", but I seriously doubt he is reading Groklaw. Or maybe they just wanted to slime Groklaw one last time, for old time's sake. Heaven only knows that's what I'll always remember whenever I think of SCO -- how hard SCO and friends worked to undermine respect for Groklaw. And all they put me through.

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

Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE, PC
[address, phone, fax]

David Boies (admitted Pro Hac Vice)
Robert Silver (admitted Pro Hac Vice)
Edward Normand (admitted Pro Hac Vice)
BOIES SCHILLER & FLEXNER LLP
[address, phone, fax]

Devan V. Padmanabhan (admitted Pro Hac Vice)
DORSEY & WHITNEY LLP
[address, phone, fax]

Stephen N. Zack (admitted Pro Hac Vice)
BOIES SCHILLER & FLEXNER LLP
[address, phone, fax]

Stuart Singer (admitted Pro Hac Vice)
BOIES SCHILLER & FLEXNER LLP
[address, phone, fax]

Attorneys for Plaintiff, The SCO Group, Inc.

____________________________

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

____________________________

THE SCO GROUP, INC., a Delaware
corporation,

Plaintiff/Counterclaim-Defendant,

vs.

NOVELL, INC., a Delaware corporation,

Defendant/Counterclaim-Plaintiff.

__________________________

SCO's MOTION IN LIMINE TO
EXCLUDE ALL EVIDENCE RELATED
TO OTHER LITIGATION AND
COMMENTARY THEREON

Civil No. 2:04 CV-000139

Judge Dale A. Kimball
Magistrate Brooke C. Wells

________________________

Plaintiff/Counterclaim-Defendant The SCO Group ("SCO") hereby moves the Court in limine for an order instructing Novell, Inc. ("Novell"), its representatives, and its witnesses to refrain from making any direct or indirect mention whatsoever at trial before the jury of litigation pending between SCO and IBM and any commentary on such litigation or on the instant litigation, without securing the prior permission of the Court. In support, SCO states as follows:

1. Evidence of the existing dispute and claims between SCO and IBM, a non-party to this action, is not relevant under Rule 401 of the Federal Rules of Evidence. Rule 401 defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." See Telum, Inc. v. E.F. Hutton Credit Corp., 859 F.2d 835 (10th Cir. 1988).

2. Given the Court's recent ruling on summary judgment, no aspect of the litigation with IBM relates to or touches upon the questions the jury must now address. Neither the history nor circumstances of the dispute with IBM, nor the nature of the claims, has any bearing on or relevance to the remaining issues for the jury to decide. While IBM and Novell's interactions may have been at issue in SCO's claims against Novell, those claims are no longer at issue in the forthcoming trial.

3. Any probative value in such evidence would be substantially outweighed by the danger of unfair prejudice to SCO. The fact alone that a separate lawsuit is pending, in which SCO's rights or obligations arising from the operation of its Unix and UnixWare business is questioned, may improperly prejudice the jury, or cause the jury to scrutinize the credibility of SCO's evidence and witnesses for reasons unrelated to the dispute before them.

2

4. The risk of such prejudice is illustrated and heightened by the commentary that has followed the IBM dispute. The nature of the claims in the IBM dispute has led to highly polarized commentary in reaction to the lawsuit. One such example is the website Groklaw.com, on which a self-described former paralegal named Pamela Jones has published and continues to publish anti-SCO biased coverage of all pleadings, hearings, and events relating to SCO's pursuit of its claims against IBM, Novell, and other parties. There are other similar sites and commentary, and the Court should not allow Novell or its counsel to make any statements that might lead jurors to investigate such sources. (We do not suggest Novell's counsel will intentionally do so, but witnesses should be so instructed. We understand Novell may not oppose this part of the motion.)

Wherefore, SCO requests that the Court exercise its inherent power over the conduct of trials, and order Novell, its representatives, and its witnesses not to elicit testimony respecting the litigation pending between SCO and IBM or regarding the commentary on such litigation or on the instant litigation, and not to mention or refer to the above matters without securing the prior permission of the Court.

DATED this 24th day of August, 2007.

HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

BOIES, SCHILLER & FLEXNER LLP
David Boies
Robert Silver
Stuart H. Singer
Stephen N. Zack
Edward Normand

3

DORSEY & WHITNEY LLP
Devan V. Padmanabhan

By: /s/ Edward Normand

4

CERTIFICATE OF SERVICE

Plaintiff/Counterclaim-Defendant, The SCO Group, Inc., hereby certifies that on this 24th day of August, 2007 a true and correct copy of the foregoing SCO'S MOTION IN LIMINE TO EXCLUDE ALL EVIDENCE RELATED TO OTHER LITIGATION AND COMMENTARY THEREON was electronically filed with the Clerk of Court and delivered by CM/ECF to the following:

Thomas R. Karrenberg
John P. Mullen
Heather M. Sneddon
ANDERSON & KARRENBERG
[address]

Michael A. Jacobs
Matthew I. Kreeger
MORRISON & FOERSTER
[address]

By: /s/ Edward Normand

4


  


SCO's Motion in Limine - Shh! Don't Tell the Jury About IBM or "Commentary Thereon" | 421 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here
Authored by: feldegast on Saturday, August 25 2007 @ 03:58 AM EDT
So they can be fixed

---
IANAL
My posts are ©2004-2007 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

[OT] Off Topic thread
Authored by: Aladdin Sane on Saturday, August 25 2007 @ 04:11 AM EDT
Please put off-topic comments under this one.

Please read "Important Stuff" on the Post page and limit HTML to that described in red text.

Thanks.

---
Free minds, Free software

[ Reply to This | # ]

SCO's Motion in Limine - Shh! Don't Tell the Jury About IBM or "Commentary Thereon"
Authored by: DarkPhoenix on Saturday, August 25 2007 @ 04:29 AM EDT
"Since at this point there is substantial question as to whether there is
going to be a jury, I suspect SCO mentions Groklaw mainly because it is afraid
the judge might be reading it, since they have been mentioning it over and over,
and they'd like to tell him that they think Groklaw is "biased", but I
seriously doubt he is reading Groklaw."

Didn't SCO submit Groklaw to Judge Kimball as evidence that IBM is trying to
undermine their credibility? If so, wouldn't he have to read it?

---
"No one's going to give you a map; you've got to walk your own path." - Hot Ice
Hilda, Outlaw Star.

[ Reply to This | # ]

[NP] News Picks discussion thread
Authored by: Aladdin Sane on Saturday, August 25 2007 @ 04:33 AM EDT

Discussion of the Groklaw News Picks (NP) can go here.

Please place the title of the story in your comment title, so we know what you are referencing/talking about.

Thanks.

"That is all."

---
Free minds, Free software

[ Reply to This | # ]

Machismo
Authored by: Anonymous on Saturday, August 25 2007 @ 04:56 AM EDT
Saying nothing would make them look weak.
So this is what they came up with.
If you know that you are going to be laughed at, you tell
a joke in order to pretend that people are laughing with
rather than at you.

[ Reply to This | # ]

  • Machismo - Authored by: Anonymous on Monday, August 27 2007 @ 01:11 PM EDT
Judge Kimball is secretly a committee of IBM lawyers.
Authored by: mexaly on Saturday, August 25 2007 @ 04:59 AM EDT
That's a good one.

---
My thanks go out to PJ and the legal experts that make Groklaw great.

[ Reply to This | # ]

Groklaw.com_
Authored by: Anonymous on Saturday, August 25 2007 @ 05:05 AM EDT
"One such example is the website Groklaw.com"...

Well, they can't get everything right, can they?

[ Reply to This | # ]

SCO's Motion in Limine - Shh! Don't Tell the Jury About IBM or "Commentary Thereon"
Authored by: blacklight on Saturday, August 25 2007 @ 05:07 AM EDT
Congratulations, PJ. You dug their grave when you started digging for the truth,
i.e. the facts and the evidence. I and many others hate SCOG, but even as we
hate SCOG, we have always been scrupulously fair to SCOG in the sense that we
have taken the time and trouble to run every one of SCOG's claims and
allegations through fine-gained analysis. And our fine-grained analysis just
about killed SCOG's PR campaigns of lies and exaggerations and snuffed out
SCOG's attempts to extort from the corporate end users.

There is a history between SCOG and Groklaw, and that history won't be over
until SCOG is an utter shell of the House of Lies that it once was. The truth is
the truth: it is inexorable, and it has neither compassion nor remorse. The
truth is what we have unleashed on SCOG, and the truth is what is destroying
them. And we will continue to unleash the truth on SCOG until they are nothing
more than a corporate trash heap, just big enough to fit into a dumpster.

SCOG picked a fight with IBM, Novell and the Open Source community. I have lost
count of how many times Groklaw warned SCOG about what would happen to SCOG in
court. In the end, SCOG only fulfilled the adage: "Mess with the best, and
die like the rest."

---
Know your enemies well, because that's the only way you are going to defeat
them. And know your friends even better, just in case they become your enemies.

[ Reply to This | # ]

SCO's Motion in Limine - Shh! Don't Tell the Jury About IBM or "Commentary Thereon"
Authored by: Anonymous on Saturday, August 25 2007 @ 05:07 AM EDT
That Fortune article you linked to has:

"...impenetrably confusing 1995 contract..."

Guess he's not as smart as the judge.

[ Reply to This | # ]

SCO's Motion in Limine - Shh! Don't Tell the Jury About IBM or "Commentary Thereon"
Authored by: Anonymous on Saturday, August 25 2007 @ 05:17 AM EDT
I have it. This SCO madness is clear to me. This is a must win motion for SCO
not just an accident or malicious motion.

SCO realises if they can't get the IBM and Groklaw evidence removed from the
record Novell will win the slander of title counter claims.
1. Novell own the copyright. FACT.
2. SCO sued IBM over the copyright. FACT.
3. Novell claimed control over contract to nullify lawsuit. FACT.
4. SCO sued Novell claiming SCO owned the copyright. FACT.

With steps 2 and 3 it is possible to prove the only point really at issue in the
slander of title counter claims. The slander was malicious with intent from
monetary gain. Without steps 2 and 3 it will be a lot harder to prove malicious
intent.

Investor and SEC lawsuits are guaranteed with every one personally liable
because they have been proven to have made false claims to SEC and their
investors used the SEC information.

Just my thoughts

Paddy

[ Reply to This | # ]

Is this a backdoor to forget their own statements?
Authored by: Anonymous on Saturday, August 25 2007 @ 05:22 AM EDT
What SCO would probably really like excluded is their own past statments about
this case...

Is excluding public websites et. al. really a backdoor to try and and stop
Novell from introducing public record of past SCO statements about owning the
entire earth and the air we breath?

[ Reply to This | # ]

Ludicrous
Authored by: sproggit on Saturday, August 25 2007 @ 05:58 AM EDT
This attempt by SCO is just plain nonsense for at least two good reasons.

Firstly, earlier this year, one of the parties put a motion before the Court to
exchange witness depositions between the two trials. Sorry, I can't remember
which party made the motion, or which direction the information flowed in. But
the mere fact that it was allowed shows that these two cases are inter-linked.
Since that motion was allowed and since SCO is a party to both suits, then
surely if this exchange of information was going to be prejudicial to the case,
then their would have been objections at the time. If it was in fact SCO who was
trying to have witness testimony from one case admitted as evidence in the other
(and I think this was the situation as I recall Novell objecting) then SCO
hardly have a leg to stand on.

Secondly, and much more importantly, is the context behind the case. Novell made
a public statement about the ownership of Unix copyrights only because SCO
claimed ownership and tried to use that assertion to extract $5 Billion dollars
out of IBM.


The only reason that SCO now seek to partition these cases relates to their own
deliberate gaming of the system. We all remember the disbelief when we watched
SCO trying to claim opposite things in the cases with Red Hat and Autozone (not
IBM and Novell, since both of these are being tried by Judge Kimball. Not even
SCO are stupid enough to make 2 conflicting claims over the same facts in 2
parallel cases that happen to be before the same Judge. Possibly.)


[ Reply to This | # ]

To Groklaw or not to Groklaw...
Authored by: Aim Here on Saturday, August 25 2007 @ 06:29 AM EDT
Tsk. A few months back SCO was making a big brouhahaha about their PJ
deposition, and sending it's fudmonkeys out to cackle at the world about PJ's
supposed evasion of service and how a PJ deposition is necessary for both the
Novell and IBM trials, and how this was all an IBM conspiracy that needed to be
exposed.

Now, we've got them in full-on 'Don't mention the Grokwar' and 'Don't mention
IBM' mode.

What made them change their minds?

[ Reply to This | # ]

SCO's Motion in Limine - Shh! Don't Tell the Jury About IBM or "Commentary Thereon"
Authored by: JamesK on Saturday, August 25 2007 @ 07:10 AM EDT
"Is this perhaps some weirdo setup for an appeal? Nothing is too
far-fetched to at least consider, judging from the past."

We want to appeal, because we released some information that shows the jury what
idiots we are. ;-)


---
OOXML - WYSIWTF

[ Reply to This | # ]

"other similar websites"
Authored by: Anonymous on Saturday, August 25 2007 @ 07:11 AM EDT
"Commentary" would be us Groklaw chickens and, SCO claims, "other
similar websites". Son, there aren't any websites like Groklaw.

As a matter of fact there are, but I would not expect you to acknowledge them.

Keep up the good work.

[ Reply to This | # ]

gambit for recusal and appeal?
Authored by: Anonymous on Saturday, August 25 2007 @ 07:14 AM EDT
Could this be a gambit to get Judge Kimball to recuse himself, then failing
that, appeal?

Not that it would be successful at any level, just wondering about the
strategy.

bkd

[ Reply to This | # ]

Your Honor, I'd like our previous public statements stricken from the public's memory...
Authored by: SirHumphrey on Saturday, August 25 2007 @ 07:37 AM EDT
"because it's devastating to my case."

Fletcher Reede, Liar Liar

[ Reply to This | # ]

Don't let SCO's paranoia infect you :-)
Authored by: elderlycynic on Saturday, August 25 2007 @ 08:06 AM EDT
Actually, it is quite possible that one or other of Kimball or
Wells read Groklaw from time to time - probably when they are
in the need of a good laugh. When faced with an absolutely
unbelievable statement from SCO, they might well think "Not
even a complete clot would swallow THAT" and drop in to see how
many Groklaw posters have noticed.

But, more seriously, as you know, it is some paralegals working
for Novell and IBM that will actually READ it. In the same
way that I follow some newsgroups in my areas, it is not for
the facts but because people may have spotted new
developments, weird links and other wrinkles that I have missed.

SCO are doing their usual - both barrels at the wrong target.

[ Reply to This | # ]

Strategy for Mis-Trial?
Authored by: Anonymous on Saturday, August 25 2007 @ 08:24 AM EDT
If the court grants the motion to keep Groklaw hush-hush from the jury, then
would SCO (after losing of course) be able to query the jury whether they had
ever seen Groklaw and if they had, then ask for a mis-trial? After all,
granting the motion would concede that jurors accessing the site would be
tainted from reaching a fair un-biased verdict.

[ Reply to This | # ]

Aren't there limits to how many can be kicked?
Authored by: Anonymous on Saturday, August 25 2007 @ 09:11 AM EDT
< It would like the judge to warn all Novell's witnesses not to breathe a
word. I can't wait for the voir dire. "Are you now or have you ever been a
reader of Groklaw?" >

Aren't there limits to how many times a side can eliminate a prospective juror
from the box? I would find it to be really, really funny if the jury pool
consisted of all Groklaw readers and the 12 angry people impaneled are all
readers of Groklaw. But then I doubt that will happen because SCO will just
SCOwhine to Kimball or someone else that they can't get a fair trial because
there are no people available that aren't enlightened.

-- Itchytweed

[ Reply to This | # ]

"us Groklaw chickens" - fox and henhouse revisited
Authored by: Anonymous on Saturday, August 25 2007 @ 09:35 AM EDT
In a recent Groklaw article there was an analogy regarding "fox and
henhouse". Will we now get "fox and chickenhouse"?

:-)

[ Reply to This | # ]

Groklaw is inevitably anti-SCO
Authored by: Anonymous on Saturday, August 25 2007 @ 09:46 AM EDT
PJ wrote "I publicly invited SCO to present its side of the story on
Groklaw if they wished to. They never did. You know why? I think it's because
SCO was so prejudiced against Groklaw and was so anti-Groklaw, it just couldn't
take what we said seriously.".

It's unusual for me to disagree with PJ about SCO but, in this instance, I do.
Your modesty has blinded you I think. SCO didn't present its side because it had
none : it had none in discovery, none in PSJ and would have had none on Groklaw,
Had they attempted to practice the smoke and mirrors here which so impressed the
mainstream media they would, I believe, have been exposed repeatedly as the
illusionists they have been - and SCO knew it.

Whenever SCO was asked to provide hard evidence to support its claims it went
quiet or changed the subject. In court, due to the pace of litigation, the
pattern took longer to become apparent. If they had been posting regularly here
their facade of legitimacy would have crumbled much sooner. The lack of
involvement from SCO is not because they failed to take Groklaw serously : they
took it seriously enough not to dare being eviscerated in public, by
non-lawyers, by geeks, by ordinary, honest people.

I must similarly dispute your belief that Groklaw is not anti-SCO. Groklaw has
presented the facts fully, fairly and faithfully. How could this have resulted
in anything but harm to SCO's position? I will, of course, concede that Groklaw
is not biased against SCO, but to be pro-truth is to be anti-SCO and Groklaw is
pro-truth.

So I believe you are wrong on this PJ but, just this once, I think we can all
forgive you ;-). Stay well.

-------------------------
Nigel Whitley

[ Reply to This | # ]

Other theory
Authored by: Anonymous on Saturday, August 25 2007 @ 09:47 AM EDT
Could this also be a back door to request logs from Groklaw to verify that
jurors have not accessed grocklaw? Sounds like a possible nefarious use.

[ Reply to This | # ]

SCO is not prejudiced against Groklaw
Authored by: Anonymous on Saturday, August 25 2007 @ 10:12 AM EDT
I publicly invited SCO to present its side of the story on Groklaw if they wished to. They never did. You know why? I think it's because SCO was so prejudiced against Groklaw and was so anti-Groklaw, it just couldn't take what we said seriously.
By asserting that SCO is prejudiced against Groklaw, PJ is giving them way too much credit.

My theory is that SCO understands Groklaw very well. SCO also understands the merits of its case. From very early on, SCO has known (or should have known) that its case is bogus. It is an abuse of the court system. The challenge for them is to make it look like they, in good faith, thought they had a real case. Their treatment of Groklaw is part of that facade. They have a tiger by the tail and can't let go. The best they can hope for is to convince the judge that they haven't been acting with malice.

In light of the above, there is no point for SCO to try to present their side of the case on Groklaw. On the other hand, it makes a lot of sense for them to paint Groklaw as biased. Saying that they are prejudiced implies that they are irrational.

I contend that they are quite rational and are making the best of a very bad situation. The individuals involved don't actually care if SCO continues to exist. It was going down the tubes anyway. When Darl took control of the company he said that he would increase the share price and he did. In many respects, their strategy has worked. It is also possible that they and BSF will get out of this without being sanctioned. If that happens, I will be very impressed.

[ Reply to This | # ]

like they wont find groklaw anyway.
Authored by: Anonymous on Saturday, August 25 2007 @ 10:48 AM EDT
I don't think it matters to be honest...

If they are gonna look up SCO on the net themselves, they will, if only to find
out about unix or other related subject matter, their searches will lead them
here.

If that happens, and they do find groklaw and the IBM case, then sit in a court
case where nobody mentions it, they are gonna know SCO had it hidden from them
and wonder why. That alone will make SCO look guilty. Lets face it, the SCO/IBM
case has featured in many thousands of articles.. any one who can use google to
search for SCO will find it. I just did that search myself and the second result
was wikipedia, which has a pretty good rundown on all the pending cases.

Fortunately it only takes one of them to inform the rest and really any jury
deciding anything at all about SCO, should be aware of what lowlife double
dealing liars they are. (That last comment is my opinion, but it's one shared by
a great many people and probably provable in court just by reading their phone
books of press releases and comparing them to reality)

I'll bet that when they are searching through the jury pool, they will ask a
question like: would you call yourself computer literate.... or have you ever
browsed the web... is anyone you know a Linux user, or had you ever heard of SCO
before this case.
They need jurors that are/have:
1. Stupid.
2. stupid families.
3. no computers, or smartphones etc.
4. no curiosity or desire to make informed decisions.

Try to get as many newbies/nonebies in the case as they can.. it's the only way
for them to have any chance at all.

rgds

Franki

[ Reply to This | # ]

"We called it right"
Authored by: danb35 on Saturday, August 25 2007 @ 10:50 AM EDT
But they did lose. We knew the code, we knew the history of both Unix and Linux, we understood the GPL, and we knew the law, as a group, and we researched the claims, and we called it right. That's not bias.
I agree that the only real bias here is in favor of truth, and thus should be a perfectly acceptable one. However, it's a little too early to say that "we called it right", as though our position were wholly vindicated by the courts.

SCO's bombshell claim has always been that Linux improperly contains copyrighted UNIX code. Their secondary claim is that their license agreements allow them to control code that licensees write on their own, even when it's distributed and used separate from UNIX. I think it's safe to say that at least the vast majority of us here believe both of those claims to be false, and we've done a lot of good research to prove it. However, the court hasn't yet ruled on either of those claims, and its decision in the Novell case makes it unlikely that it will.

The court's decision in Novell is certainly important, but it frankly was a no-brainer--it was obvious that copyrights were excluded from the APA, and also obvious that there was no written instrument of conveyance. We did call that right, and we can justly be proud of ourselves for that (and none more than you, PJ). But we haven't yet been vindicated on the other (and, IMO, more substantive) issues in this case.

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Setting up for new lawsuit perhaps?
Authored by: arthurpaliden on Saturday, August 25 2007 @ 11:48 AM EDT
You think that tSCOg is just starting to lay the ground work for a new legal
move to muddy the waters even more just before the trial. I do not think it
would be beyond the scope of probability for tSCOg to announce a new lawsuit
regarding the deformation of character and libel against them caused by Groklaw.


Of course they do not have to actually file the suit, mere mention of it will
get all the press coverage they want. especially in the Utah area.

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SCO's Motion in Limine - Shh! Don't Tell the Jury About IBM or "Commentary Thereon"
Authored by: complex_number on Saturday, August 25 2007 @ 11:57 AM EDT
Forgive me for being ignorant of US and/or Utah Law (i'm from the UK) but surely
the documents filed at the court in SCO vs IBM (and SCO vs RedHat for that
matter) are public record (by this I mean that they are available to any member
of the public who cares to stop by the courthouse and apart from those documents
which have been redacted)
If they are deemed part of the public record then surely as at leadt some of the
documents in the SCO vs IBM case have been files on behalf of SCO then ruling
that the jusy can;t hear about SCO vs IBM is censorship at its worst.
As a document filed by SCO in another case may have relevanc e to this case it
would be IMHO a dereliction of duty for a Novell lawyer NOT to use such
documents in its case against SCO.
for examlple, if SCO made a statement in a SCO vs NOVELL doc that is plainly
contradicted by a statement in a SCO vs IBM document the Novell lawyer must have
a duty to questio SCO about this contradiction in order to find out which one is
a lie (or economical with the truth...)

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Kinda like
Authored by: Anonymous on Saturday, August 25 2007 @ 12:15 PM EDT
Criminals other actions that might prejudice a jury, I call it the truth. Slick
willy lawyers can thread at least one needle providing the blinders have been
put on the jury.

How many times have we seen bad peoples previous actions hidden until after the
trial?

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SCO's Motion in Limine - Shh! Don't Tell the Jury About IBM or "Commentary Thereon"
Authored by: EsTurn on Saturday, August 25 2007 @ 12:29 PM EDT
"...scrutinize the credibility of SCO's evidence and witnesses for reasons
unrelated to the dispute before them."

The fact that the judge put the IBM case on hold until after the Novell case,
even though the IBM case came first, gives a pretty good idea of how the judge
feels about whether the cases are related or unrelated. Good luck SCO trying to
convince anyone that they are unrelated. This is the kind of argument that gets
made only because lawyers have no scruples about what they will say for money.

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One good reason for SCO to continue ...
Authored by: kawabago on Saturday, August 25 2007 @ 01:17 PM EDT
To keep SCO executives and board members out of jail! Right now it looks like
the SCO board and executives knowingly perpetrated this fraud in a cynical
attempt to be bought out. I think that falls under racketeering and they are
going to have an uphill battle proving they didn't know the truth all along.

There will also be stock holder class actions against them. The judge already
said they knew or should have known they didn't have the copyrights. That means
they squandered the companies assets on a bogus law suit. Everything they do
from here on is to try to look convinced they were acting in the companies best
interests, which very clearly they were not.

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Jurors are ALWAYS told not to independantly investigate
Authored by: jfw25 on Saturday, August 25 2007 @ 01:37 PM EDT
Jurors are always told -- repeatedly -- not to independantly investigate cases; not to talk to anyone about the case; not to read anything about the case; not to listen to news stories on television about the case. Specifically requesting that the judge forbid Novell from telling jurors about a website where the jury can read about the case -- any website, whether groklaw,com, sco.com, or yahoo.com -- is pure theater on SCO's part for the purposes of their press campaign, because there is no way Novell would have done any such thing. Similarly, even without this request there is little likelihood that the judge would permit Novell to discuss anything about any other lawsuit, whether it's SCO v. IBM or Roe v. Wade, unless it specifically bore some relevance to the specific case being tried. This part of their request, therefore, was also pure theater, especially since there probably is a good deal of evidence relevant to both cases, meaning that SCO will be able to whine that they were denied a fair trial because of evidence from an "irrelevant" case -- which unfortunately was actually relevant to this case.

Note that everyone who is saying that SCO filed this request because they "don't want fully informed jurors" have completely missed the point of how trials work. The job of a jury is to evaluation the evidence placed before them, evidence which the judge (presumably with a great deal of experience in the evaluation of evidence) has concluded is sufficiently reliable and sufficiently relevant to be presented to a jury made up primarily of people without twenty years' experience in the evaluation of legal evidence. You may think that it is unjust that the jurors might be deprived of the evidence Groklaw has exposed of SCO's manifest malfeasance, but they will also be deprived of no shortage of trolls, people posting that Judge Kimball is a complete idiot, and elaborate theories linking SCO to not only Microsoft but the Trilateral Commission and the Bavarian Illuminati. I think that if Novell see the need to raise questions in the jurors' minds as to SCO's credibility, SCO's actions in the SCO v. Novell case are a more than sufficiently rich vein for Novell to mine, they will not have to go looking in SCO v. IBM for choice examples.

To the extent that this motion was not just a press release, SCO have demanded that the judge do his job. Which, all things considered, is probably not a good idea for them to hope for...

(Since I am not a lawyer, I suppose that it is possible that lawyers routinely file this kind of "remember to do the same thing you've done in every single trial for the past twenty years" motion, especially if they know they're going to lose at trial and need to leave plenty of straws lying around to grasp during appeals. But my guess is this is probably just a PR document.)

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A SCOem to the judge
Authored by: cricketjeff on Saturday, August 25 2007 @ 02:18 PM EDT
The latest from Nice Waistcoat

A jury trial please

We have to go for jury trial
The judge don’t like our lies
We have to hide each other case
Or else we’ll lose surprise
We have to have all evidence
Hid from the other side
If they see what we’re planning
They can prove the ways we’ve lied
It really isn’t fair you know
This playing by the rules
We only went to court because
We thought the judges fools
If we can get a jury trial
We may find a dozen clots
Who are related to the clan McBride
Who think we should get lots
We have to go for jury trial
The judge don’t like our lies
We have to hide each other case
Or else we’ll lose surprise
We have to have all evidence
Hid from the other side
If they see what we are planning
They can prove the ways we’ve lied
It really isn’t fair you know
This playing by the rules
We only went to court because
We thought the judges fools
We have to go for jury trial
We may make twelve folk agree
That just because we have no case
We shouldn’t lose the lottery
If we can get a jury trial
We may find a dozen clots
Who are related to the clan McBride
And who think we should get lots
There’s no reason for avoiding
This jury lottery play
It doesn’t matter if we lose
We’re bankrupt anyway!

---
There is nothing in life that doesn't look better after a good cup of tea.

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PJ - concerning SCO prejudice
Authored by: Anonymous on Saturday, August 25 2007 @ 02:38 PM EDT
It,s not so much they think you are prejudiced, it's that you said they right
about ANYTHING. Now, to some of the more thalamic thinkers (to use a General
Semantics phrase) that is the same as being prejudiced. That fact that they
WERE wrong about everything isn't going to alter the emotional perception they
have of the apparent one-sidedness of Groklaw's coverage. The fact that they
confounded modern "SCO" with the original, real SCO, shows just how
far from reality they were. They don't distinguish themselves semantically from
their historical predecessor, in fact deliberate decided to use a name that
enhances that confusion, and in failing to do, embark on the absurdities we see
now. They say, "we" wold never have paid so much for so little, but
really, "they" never did and were never party to that transaction.
They have "identified" fictitiously with that predecessor. With
individual humans, at one time we would have pointed out that this is mistaken
and also pointed the way to the nearest psychotherapist.

In this day and age, in a society where political correctness caters to the
handicaps of the loudest among us, emotional and otherwise, demonstrating the
complete error of someone is the epitome of a total failure of PC. SCOX has
been loud enough, clearly convinced of their being wronged. But you showed them
that in law, history and facts really do matter.

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SCO's Motion in Limine - Shh! Don't Tell the Jury About IBM or "Commentary Thereon"
Authored by: Anonymous on Saturday, August 25 2007 @ 07:00 PM EDT
Actually, SCO''s motion sounds like the instructions I have received when called
for jury duty. They don't want jurors going outside of the evidence presented
in court when making a decision.
I am curious though, this seems like instructions every bailiff gives when the
jury pool is first forming. Why did SCO feel it necessary to specifically list
something the court is going to say anyway?
The cynic in me thinks it is because they want at least one favorable ruling out
of this trial.

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What SCO is up to here
Authored by: pooky on Saturday, August 25 2007 @ 09:20 PM EDT
I wonder how SCO or anyone could reasonably expect that potential jurors can be
found that are savvy enough to understand the issues at had yet have never heard
of the IBM lawsuit? SCO themselves made huge public spectacle of suing IBM, and
others, and made many public claims that have since been proven false even
without a trial in the case.

I wonder if Novell's motion to strike SCO jury demand is aimed at derailing
SCO's potential strategy, which I think may be to avoid trial at all. I can't
see SCO ever accepting a defeat so they will either strike every juror as
unacceptable because they:

1) Have heard of the IBM lawsuit and are prejudiced because of it
2) Have ever read Groklaw (instant dismissal of the juror I would guess)

I'll bet SCO could find a reason to object to every juror in the pool and then
ask for a mistrial because they cannot get a fair trial in Utah because everyone
there reads/sees the news in some form. I wonder if the judge would just default
to a bench trial if SCO tried this.

I think there's a chance Novell considers this a possibility and is demanding a
bench trial to avoid the delay this tactic would introduce.
Just a thought.

---
Many Bothans died to bring us this information.

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They are *really* going to have trouble explaining *this*
Authored by: bobn on Saturday, August 25 2007 @ 10:33 PM EDT
http://www.groklaw.net/article.php?story=20070405123029796

SCO'S MEMORANDUM IN SUPPORT OF ITS MOTION TO DEEM A PROSPECTIVE THIRD-PARTY DEPOSITION IN RELATED LITIGATION TO BE A DEPOSITION TAKEN IN THIS CASE AS WELL


How can they claim that the cases are totally separate after *they* filed that? Looks like they outsmarted themselves again - or is it outdumbed themselves? - this was filed in SCO v IBM when they wanted to depose PJ in SCO v Novell (because deposition time in IBM had expired).

---
IRC: irc://irc.fdfnet.net/groklaw
the groklaw channels in IRC are not affiliated with, and not endorsed by, either GrokLaw.net or PJ.

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Another SCO Strategic Blunder...
Authored by: Anonymous on Sunday, August 26 2007 @ 12:09 AM EDT
If evidence of these other lawsuits can't be presented to the jury, how will SCO
be able to successfully pursue their insanity defense?

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On the Bright Side...
Authored by: sproggit on Sunday, August 26 2007 @ 04:39 AM EDT
There's a very useful expression that seems relevant in this particular instance
:-

"Be careful what you ask for, since you might get it."

SCO's motion asks that the jury is not told about the details of the SCOvsIBM
case. Novell has a motion that asks Judge Kimball to dispense with a jury trial
and make this purely a bench trial.

We have seen in the past how Judge Kimball favours simple efficiency and
practical steps to move things along. So what's to stop him from granting SCOs
request of making sure that a jury are not told about the IBM case - simply by
agreeing with Novell that a jury is not required to try the remaining issues.


It's too early to tell, but I wonder and hope if SCO have out-smarted themselves
once again?

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But, you can't ask the question
Authored by: Anonymous on Sunday, August 26 2007 @ 09:37 AM EDT
<<I can't wait for the voir dire. "Are you now or have you ever been
a reader of Groklaw?">>

But you can't ask the question because even if the juror answers "no",
they are then informed of the existence of groklaw, which is not allowed. You
would have to ask "have you any prior knowledge of the issues surrounding
this case"

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Motion likely to be granted?
Authored by: studog on Sunday, August 26 2007 @ 05:21 PM EDT

It wouldn't surprise me if this motion was granted. Here's why:

"Plaintiff/Counterclaim-Defendant The SCO Group ("SCO") hereby moves the Court in limine for an order instructing Novell, Inc. ("Novell"), its representatives, and its witnesses to refrain from making any direct or indirect mention whatsoever at trial before the jury of litigation pending between SCO and IBM and any commentary on such litigation or on the instant litigation, without securing the prior permission of the Court."

Judge: Motion granted! --

SCOX: Woohoo! Yes! Alright! [issues press releases]

Novell: Er, judge?

Judge: Novell, you hereby are granted permission of the Court to mention any and all information pertaining to the IBM ligigation, groklaw.net, etc.

...Stu

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SCO's Motion in Limine - Shh! Don't Tell the Jury About IBM or "Commentary Thereon"
Authored by: Anonymous on Sunday, August 26 2007 @ 09:54 PM EDT
SCO Lawyer: Okay, jury, you are hereby required not to look at any news sites
regarding the lawsuit. Most particularly not 'groklaw.com'. So, whatever you do,

don't look at 'groklaw.com', spelled G-R-O-K-L-A-W dot com. Got that? Good.
Just remember, don't go to 'groklaw.com' . . . what?

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PJ's brand of fairness has sadly gone out of fashion.
Authored by: Anonymous on Monday, August 27 2007 @ 12:55 PM EDT
What many journalists think of nowadays as "fairness" or objectivity
is not taking sides. That means you just report: he said, she said, and let
people figure it out on their own. Or, worse, assume that reality lies somewhere
between the two positions.

But sometimes it doesn't. Sometimes people just lie. And when that happens, the
"objective" method of reporting actually helps the liars by granting
them credibility they do not deserve.

PJ has not merely reported SCO's public statements, she has actually researched
the story to the point where she has become expert in it. Then she reports what
she has found.

Traditional media news have largely abandoned this approach. Party because it is
too expensive, and partly because it may offend important interests they depend
on, whether it be for advertising money or political access.

So, nowadays when a journalist investigates and actually reports what they find,
be it lies or corruption, others cry foul! This reporter is biased!

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