It says Novell shouldn't be allowed to use them at trial. They failed to ask the court's permission to add them after the deadline, SCO charges. This despite SCO admitting that the parties did agree to come up with new lists, after Judge Dale Kimball's August 10th order on the parties' numerous summary judgment motions, but SCO thinks that should mean *removing* items, not adding them. Novell added some. No fair! Here's my favorite sentence:

SCO followed the rules and did not add documents or witnesses to the list.

I'd like to see the rule that says if you agree with the other party to file revised lists it means you can only subtract. Anyway, long-time Groklaw readers will understand the humor in such a sentence. Even those who are fairly new here may remember that when Novell filed its list on August 2, it said this:

Novell notes that: SCO recently produced over 1,000 pages of third-party production SCO claims is relevant to this litigation; expert discovery is not complete; the parties have various evidentiary and summary judgment motions pending; and the parties are continuing to meet and confer regarding certain outstanding discovery issues. Novell therefore reserves the right to supplement or otherwise modify these disclosures.

Now, who is playing by the rules? 1,000 pages of new material? These guys are such a hoot. And as you see Novell reserved its right to add to the list anyhow, on the basis of new things that had just been thrown at it by SCO and the fact that discovery was not over.

Now let me walk you through this filing bit by bit, and as you follow the bouncing ball, I think you'll find there may be even more to the story.

So SCO and Novell had already filed their witness and documents lists on August 2nd, when on August 10 Judge Dale Kimball issued his ruling on the multiple summary judgment motions in this litigation, which had a tsunami effect on SCO's case, so the parties got together to talk about what to do about their lists, which were obviously no longer accurate since SCO's claims were pretty much sleeping with the fishes after that ruling. They agreed to file revised lists. Here's how SCO puts it:

The Order did not provide for revised Rule 26(a)(3)(C) disclosures, and specifically stated: "This Trial Order does not affect the parties' pre-trial requirements under the Federal Rules of Civil Procedure." Nevertheless, in recognition of the fact that the Court's order had substantially narrowed the issues to be tried, the parties agreed to exchange revised Rule 26(a)(3) disclosures for the purpose of deleting documents and witnesses no longer required.

The parties did then file revised lists on August 23rd, after agreeing to do so, and then Novell filed a further revision [PDF], adding five more documents. This is SCO's complaint about it:

However, Novell has added 187 new documents to its August 23, 2007 submission "First Amended Novell FRCP 26(a)(3)(C) Disclosure: Exhibits That Novell Expects to or May Offer." In addition, several days later, Novell filed a Second Amended disclosure adding five additional documents. These new documents were added by Novell three weeks after the Court's final deadline for disclosing documents to be used at trial, and just three weeks before trial. Novell has done this without requesting or receiving leave from the Court.

That's SCO's beef. But SCO agreed to revise the lists, after all, so where does the original deadline come into this? Could SCO please show us that rule, that you can only remove and not add items, after the parties *agree to do new lists after the deadline*? And here's the remedy SCO would like:

The proper remedy is to strike these new documents from Novell's exhibit list and preclude Novell from using them at trial.

Let's look a little bit closer now at how this all might play out in real life if SCO gets things to play out its way. The chronology is clear. They had filed lists, the order threw a bomb on them, so they agreed to come up with new ones. I trust Novell's attorneys have email or letters to substantiate exactly what the agreement was, but let's analyze it as if they didn't. The attorneys on both sides have a verbal gentleman's agreement that they will agree to file new lists, even though the judge didn't order it or set forth any schedule for it.

Novell added some exhibits that it told the court it will only use "in the event SCO advances any new theory of SCOsource revenue apportionment." Very possibly one will find that new theory of apportionment in those new 1,000 pages of materials from SCO.

Now, just to show you this isn't exactly about what they say it's about, not to put too fine a point on it, consider this: even if SCO thought it was too late to add these new materials, couldn't SCO avoid any of the exhibits from being introduced into the trial by simply not introducing any new theory of revenue apportionment. No? Too simple?

I suspect, then, that indeed SCO does have a new theory it plans to introduce, or at least is thinking about it, Novell figured it out in discussions at the meet and confers with SCO, and so it is adding to its list what it might need, should SCO go ahead. SCO saw that Novell had it figured out and is ready, and so it talks about holy scheduling in order to try to get that evidence removed from Novell's arsenal.

So, now let's think about SCO's suggested remedy. SCO asks the court for an order excluding any such Novell defensive evidence at trial. Um. No matter whether SCO introduces the new theory or not? So SCO goes ahead with a new theory and Novell has no evidence to use to address the new theory. Heh heh. Do you love it?

Which is more prejudicial, would you say, to add a new theory of the case a few weeks before trial, not even going into the 1,000s of pages of new documents which may very well have been knocked out of the case by the Kimball ruling, and ask the court to blast Novell's evidence it needs to deal with the new theory so it is left helpless? Or adding a couple of hundred new documents you'll only use if the other side actually presents its new theory they seem to plan to spring on you at the last minute?

If you say the second, you might just think like SCO. They're just playing by the rules.

Uh huh. The way Microsoft plays by ISO rules in voting on standards. Some might call it playing with the rules, I am thinking. But I'll leave that to you to decide.

You may wish to read also in this context Novell's Motion in Limine No. 3 to Preclude SCO from Introducing New Evidence or Argument of SCOsource Revenue [PDF] and the Opening Brief in Support [PDF]. I'll put them in text in the next article, and you'll learn the rest of the story.

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

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 TO STRIKE EXHIBITS
ON NOVELL'S REVISED EXHIBIT
LIST NOT PREVIOUSLY DISCLOSED

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 striking from Novell's First Amended and Second Amended Rule 26(a)(3)(C) Disclosures the documents not previously disclosed by Novell, and precluding Novell from using those documents at trial.

BACKGROUND

On August 2, 2007, SCO and Novell exchanged and filed Rule 26(a)(3)(C) Disclosures, including lists of exhibits that each party expected to offer and may offer at trial. This exchange was pursuant to the Court's July 11, 2007 Order Re Pretrial Schedule, which required: "The parties shall file and serve their respective Rule 26(a)(3) Pretrial Disclosures by August 2, 2007."

On August 10, 2007, the Court issued its Memorandum Decision and Order, which substantially limited the claims to be tried in the upcoming trial and the issues to be decided by the jury. The Court's order, however, did not add any claims to the upcoming trial. On the same day, the Court issued an order revising certain pretrial deadlines, but maintaining the original trial date of September 17, 2007.

The Order did not provide for revised Rule 26(a)(3)(C) disclosures, and specifically stated: "This Trial Order does not affect the parties' pre-trial requirements under the Federal Rules of Civil Procedure." Nevertheless, in recognition of the fact that the Court's order had substantially narrowed the issues to be tried, the parties agreed to exchange revised Rule 26(a)(3) disclosures for the purpose of deleting documents and witnesses no longer required.

However, Novell has added 187 new documents to its August 23, 2007 submission "First Amended Novell FRCP 26(a)(3)(C) Disclosure: Exhibits That Novell Expects to or May Offer." In addition, several days later, Novell filed a Second Amended disclosure adding five additional

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documents. These new documents were added by Novell three weeks after the Court's final deadline for disclosing documents to be used at trial, and just three weeks before trial. Novell has done this without requesting or receiving leave from the Court. Rather, Novell simply stated in its disclosure document: "Roughly three quarters of these exhibits are material that Novell only intends to use in the event SCO advances any new theory of SCOsource revenue apportionment." However, Novell does not indicate which of the nearly two hundred new documents this statement applies to, nor does Novell explain why these documents would be relevant or why they could not have been disclosed before. If Novell feels that SCO is advancing a "new" theory of apportionment, it should move for leave to supplement its list at that time and justify the additions not unilaterally add documents based on the hypothetical possibility that a new theory is advanced.

SCO followed the rules and did not add documents or witnesses to its list.

SCO is prejudiced by having to deal with numerous new documents just weeks before trial. SCO's prejudice is further exacerbated by the fact that Novell identified few of these new documents in response to SCO's interrogatory requests. Interrogatory Number 9, in particular, asked Novell to "identify all facts, bases, and evidence in support of each of the counterclaims in Novell's Amended Counterclaims dated September 21, 2006."

DISCUSSION

The proper remedy is to strike these new documents from Novell's exhibit list and preclude Novell from using them at trial. Rule 16(f) provides that, "If a party or party's attorney fails to obey a scheduling or pretrial order . . . the judge, upon motion or the judge's own initiative, may make such orders with regard thereto as are just, and among others any of the

3

orders provided in Rule 37(b)(2)(B), (C), (D)." By introducing new documents weeks after the Court's deadline for completing Ruler 26 disclosures, Novell indisputably failed to obey the Court's scheduling order.

The appropriate sanction is set forth in Rule 37. Rule 37(b)(2)(B) permits an order prohibiting the disobedient party "from introducing designated matters in evidence." In other words, "Rule[] 37(b)(2) expressly permits the court to strike pleadings and prohibit the introduction of evidence not disclosed in a timely fashion." Giesting v. Storz Instrument Co., 171 F.R.D. 311 (D. Kan. 1997) (emphasis added). Thus, in Giesting v. Storz Instrument Co., 171 F.R.D. 311 (D. Kan. 1997), the court struck seventy additional exhibits from the defendant's supplemental final exhibit list because the defendant "neither sought nor received leave of court to file the list of seventy additional exhibits at a time well after the discovery deadline had ended." Id.

Under Rule 37, exclusion of the evidence from trial is appropriate unless Novell demonstrates that it had "substantial justification" for failing to comply with the Court's order requiring disclosure, or that its failure to do so was "harmless." Fed. R. Civ. P. 37(c); Saudi v. Valmet-Appleton, Inc., 219 F.R.D. 128, 132 (E.D. Wis. 2003) (excluding witnesses who were disclosed after court deadline for disclosure). Specifically, Rule 37(c) provides:

A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1), or to amend a prior response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed.

Novell cannot demonstrate that its failure to disclose these additional documents by the Court's deadline was "substantially justified" or "harmless." Novell has identified nearly two

4

hundred new documents just three weeks before trial. While the Court's August 10, 2007 Order substantially narrowed the scope of the trial, it did not add any claims. Thus, the amended disclosures should have removed documents, not added new documents. Moreover, because Novell's belated disclosure was made just weeks before trial, it is not harmless to SCO. Rather, SCO is prejudiced in its ability to analyze and research this volume of new documents with such a short time before trial.

CONCLUSION

Wherefore, SCO respectfully requests that the Court enter an Order striking from Novell's First and Second Amended Rule 26(a)(3)(C) Disclosures the documents not previously disclosed by Novell, and precluding Novell from using those documents at trial.

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

DORSEY & WHITNEY LLP
Devan V. Padmanabhan

By: /s/ Edward Normand

5

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 TO STRIKE EXHIBITS ON NOVELL'S REVISED EXHIBIT LIST NOT PREVIOUSLY DISCLOSED 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

6