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Yet More Filings in Novell - Why SCO Wants No Mention of IBM or Groklaw - Updated
Wednesday, September 05 2007 @ 04:46 PM EDT

Lots of new filings in SCO v. Novell. Now the mystery clears as to why SCO wants no mention of the IBM litigation or Groklaw in the SCO v. Novell trial. In its Reply Memorandum in Support of its Motion In Limine to Exclude All Evidence Related to Other Litigation and Commentary Thereon [PDF], we hear its reasoning. I gather SCO would like SCO's CEO Darl McBride not to be quoted. I'm sure you can understand why those old quotes from 2003 and 2004 about SCO owning System V copyrights and all the information about what kind of licenses the Sun and Microsoft agreements were would be undesirable from SCO's viewpoint nowadays.

Here are SCO's words:
Novell contends that it may seek to use statements made or taken in the context of the IBM litigation. Even if such statements were offered and introduced at this trial, foundation could be laid for their admission without reference to the IBM case. Witness and counsel alike could refer to 'another proceeding,' if there is any need to differentiate the circumstances under which the statement was made from the present litigation. Novell has advanced no reason why the jury would need to understand that the statement was generated in the IBM case. Lacking any need for the evidence, Novell should be precluded from interjecting prejudicial references to the IBM litigation before this jury....

Novell asserts that it does not intend to elicit testimony or introduce evidence concerning the commentary on the IBM litigation; accordingly, the Court should so Order the parties to direct their representatives and witnesses to refrain from any such reference. Novell nevertheless implies that it intends to introduce news articles that would contradict that Order, on the asserted basis that such articles also contain admissions by SCO executives. In light of the narrowed issues for trial, no such articles or admissions would be relevant; accordingly, Novell's only purpose in seeking their admission would be to improperly prejudice SCO. In the event that the Court permits admission of such statements by SCO executives contained in news articles, gratuitous information regarding the IBM litigation can and should be redacted therefrom.

Groklaw is hazardous, because all his statements are here, and of course most of them were made in the context of filing its litigation against IBM. The SEC filings are here on our SCO Financials page. The teleconferences are here on our Transcripts page. There's just no telling what a juror might stumble across. Like, say, in our Quote Database, where all the wild and now provably untrue statements McBride made about owning System V copyrights that SCO said it got under the 1995 APA are preserved for history. Oh, and all the statements about Novell and how it had no right to say it owned the copyrights. My, my. I agree. Groklaw is juror quicksand for SCO. If I were SCO I would be worried that the same thing will happen in court that happened in the court of public opinion. What I don't understand, unless this was intended as FUD lawsuit, is why the SCO legal team let the SCO executives say so much to the media in the first place.

And among the other many new filings, Novell says in its Opposition to SCO's Motion for Entry of Final Judgment Pursuant to Federal Rule of Civil Procedure 54(b) [PDF] that SCO's motion is premature and so should be rejected and that's the nicest thing Novell says about it. For starters, the rule is for getting judgments on claims, not on portions of claims, which is what they say SCO is asking to have finally adjudicated. "Novell's rights and obligations vis-a-vis the IBM and Sequent licenses are intertwined with the question of whether those licenses are SVRX licenses under the Agreements. Because SCO does not even argue that the Court 'entirely' disposed of Novell's Fourth Claim for Relief on summary judgment, the portion of the claim for which SCO seeks final judgment is unripe for appeal." Ditto the Second Claim. And as for the effect on the IBM litigation, it's going to be tried too soon for SCO to make it through an appeal first, Novell points out.

Here's all the new material on PACER:

440 - Filed & Entered: 09/04/2007
Reply Memorandum/Reply to Response to Motion
Docket Text: REPLY to Response to Motion re [390] Plaintiff's MOTION to Strike Exhibits on Novell's Revised Exhibit List Not Previously Disclosed filed by Plaintiff SCO Group. (Attachments: # (1) Exhibit A-B (Unpublished Cases))(Normand, Edward)

441 - Filed & Entered: 09/04/2007
Notice (Other)
Docket Text: NOTICE of CORRECTED FILING by SCO Group re [440] Reply Memorandum/Reply to Response to Motion (Normand, Edward)

442 - Filed & Entered: 09/04/2007
Reply Memorandum/Reply to Response to Motion
Docket Text: REPLY to Response to Motion Re: SCO's Motion to Exclude Testimony of Terry L. Musika filed by Plaintiff SCO Group. (Attachments: # (1) Exhibit A-B (Unpublished Cases))(Normand, Edward)

443 - Filed & Entered: 09/04/2007
Notice of Conventional Filing
Docket Text: NOTICE OF CONVENTIONAL FILING of SCO's Reply Memorandum In Further Support of SCO's Motion In Limine Regarding Apportionment of 2003 Microsoft and Sun Agreements filed by Plaintiff SCO Group (Normand, Edward)

444 - Filed & Entered: 09/04/2007
Terminated: 09/05/2007
Motion for Leave to File Excess Pages
Docket Text: Plaintiff's MOTION for Leave to File Excess Pages re: SCO's Reply Memorandum In Further Support of SCO's Motion in Limine Regarding Apportionment of 2003 Microsoft and Sun Agreements filed by Plaintiff SCO Group. (Attachments: # (1) Text of Proposed Order) Motions referred to Brooke C. Wells.(Normand, Edward)

445 - Filed & Entered: 09/04/2007
Reply Memorandum/Reply to Response to Motion
Docket Text: REPLY to Response to Motion re [389] Plaintiff's MOTION in Limine to Exclude All Evidence Related to Other Litigation and Commentary Thereon filed by Plaintiff SCO Group. (Attachments: # (1) Exhibit A (Unpublished Case))(Normand, Edward)

446 - Filed & Entered: 09/04/2007
Reply Memorandum/Reply to Response to Motion
Docket Text: REPLY to Response to Motion re [390] Plaintiff's MOTION to Strike Exhibits on Novell's Revised Exhibit List Not Previously Disclosed filed by Plaintiff SCO Group. (Normand, Edward)

447 - Filed & Entered: 09/05/2007
Order on Motion for Leave to File Excess Pages
Docket Text: ORDER granting [444] Motion for Leave to File Excess Pages. Signed by Judge Dale A. Kimball on 9/5/07. (kla)

448 - Filed & Entered: 09/05/2007
Memorandum in Opposition to Motion
Docket Text: MEMORANDUM in Opposition re [410] Plaintiff's MOTION for Entry of Judgment PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 54(b) filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit 1 # (2) Exhibit 2 # (3) Exhibit 3)(Sneddon, Heather)

There may well be even more filings today.

Update: Indeed, there is one more:

450 - Filed & Entered: 09/05/2007
Objections
Docket Text: OBJECTIONS to SCO's Supplemental Jury Instructions filed by Defendant Novell, Inc.. (Sneddon, Heather)


  


Yet More Filings in Novell - Why SCO Wants No Mention of IBM or Groklaw - Updated | 89 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Thread
Authored by: Aladdin Sane on Wednesday, September 05 2007 @ 05:37 PM EDT
Please place corrections to the story under this comment.

Thanks.

---
Free minds, Free software

[ Reply to This | # ]

[NP] News Picks discussion thread
Authored by: Aladdin Sane on Wednesday, September 05 2007 @ 05:39 PM EDT
This is the [NP] News Picks discussion thread.

---
Free minds, Free software

[ Reply to This | # ]

[OT] Off Topic discussion thread
Authored by: Aladdin Sane on Wednesday, September 05 2007 @ 05:41 PM EDT
Please place comments not directly to the story under this one.

Thanks.

---
Free minds, Free software

[ Reply to This | # ]

Yet More Filings in Novell - Why SCO Wants No Mention of IBM or Groklaw
Authored by: Anonymous on Wednesday, September 05 2007 @ 05:51 PM EDT
Am I the only one whose head is spinning?
How does one keep up?

[ Reply to This | # ]

Is there time for all this??
Authored by: Steve Martin on Wednesday, September 05 2007 @ 05:58 PM EDT
The Novell trial is seven business days away (not counting today). Is there even
time for all this motion practice to play out before trial? Or are we looking at
the possibility that the trial date will have to slip?


---
"When I say something, I put my name next to it." -- Isaac Jaffee, "Sports
Night"

[ Reply to This | # ]

Transcriptions
Authored by: Steve Martin on Wednesday, September 05 2007 @ 06:00 PM EDT
PJ, it seems to me that we have let ourselves fall behind in transcriptions. Can
you let us know which of these filings still need transcription, and which you
already have (or have in the works)? I'm sure volunteers here will jump on if
given the chance.


---
"When I say something, I put my name next to it." -- Isaac Jaffee, "Sports
Night"

[ Reply to This | # ]

SCO To PJ -- "Remember When We Said We Want To Talk? Nevermind...."
Authored by: TheBlueSkyRanger on Wednesday, September 05 2007 @ 06:16 PM EDT
Hey, everybody!

Oh, this is rich. Especially after all that "PJ is a front for IBM,"
"PJ is not what she seems," "We want to talk to her,"
"We've subpoenaed her," and all that. Only to now say, "Just
kidding!"

Any chance of a harassment suit coming out of this, especially since this seems
to be a tacit admission that she could do nothing to bolster their case?

I'm sorry, but I'm sooooooo looking forward to the fingerpointing, where SCO and
BSF try to prove to the world this Hindenburg is the others' fault.

The truth has set PJ free--they dare not touch her and risk all the dirty
laundry she's collected being aired.

Dobre utka,
The Blue Sky Ranger

"Welcome to Dante's. What floor?"

[ Reply to This | # ]

legal basis?
Authored by: free980211 on Wednesday, September 05 2007 @ 06:22 PM EDT
i don't really understand the legal basis for all of the squabbling over darl's
statements...

i understand that they fear it will be prejudicial, but it was the ceo himself
(among others) who was making these statements. why can they retroactively
censor the company voice when it gets to the jury?

the investors were given no such protection, and many people were taken for
quite the ride, as investors, and also as observers. what makes the jury so
special that they cannot hear the rambling dreams of untold wealth that our
friends in utah were so liberal in spreading around the press?

this affair should serve as a warning to company officials attempting to run
litigation in the court of public opinion.

on a separate note, what are the chances that they win a significant portion of
the motion?

[ Reply to This | # ]

Docket 444
Authored by: red floyd on Wednesday, September 05 2007 @ 06:31 PM EDT
Why am I not surprised to see 444 on the docket?

---
I am not merely a "consumer" or a "taxpayer". I am a *CITIZEN* of the United
States of America.

[ Reply to This | # ]

Shhhhhhhhhhhhhhhh.....The S.E.C. Might Read About The Trial
Authored by: Anonymous on Wednesday, September 05 2007 @ 07:40 PM EDT
Eh!

[ Reply to This | # ]

Yet More Filings in Novell - Why SCO Wants No Mention of IBM or Groklaw
Authored by: Anonymous on Wednesday, September 05 2007 @ 07:47 PM EDT
SCO: We don't want any evidence presented that might
be injurious to our case.

What world do they live in?

Forget it. Sorry I asked.

[ Reply to This | # ]

Don't say the "G" word...
Authored by: Jamis on Wednesday, September 05 2007 @ 08:19 PM EDT
As if the Novell (or IBM) legal staff would need to quote Groklaw to make a
point. OK, so they don't want PJ's analysis to be quoted, but with all of SCO's
documented logic and factual failures so neatly cataloged and cross referenced
here, Novell and IBM really don't need to quote, they can easily make their own
statements from the published facts (with Groklaw guidance on where to look, if
necessary).

[ Reply to This | # ]

442
Authored by: BobinAlaska on Wednesday, September 05 2007 @ 08:27 PM EDT
Why would this motion be filed unsealed when all the rest on this subject have
been sealed?

---
Bob Helm, Juneau, Alaska

[ Reply to This | # ]

The argument is moot
Authored by: devil's advocate on Wednesday, September 05 2007 @ 08:45 PM EDT
There's not going to be a jury - or at least I can't see why one is needed.
Novell is going to win on that point. Novell says "it's all ours"; SCO
says the same. What has a jury got to do with deciding what proportion is to go
to each side?

[ Reply to This | # ]

'Groklaw is juror quicksand for SCO'
Authored by: Zarkov on Wednesday, September 05 2007 @ 09:40 PM EDT
hmm... do I percieve another excellent TShirt coming on?? :-)

[ Reply to This | # ]

Yet More Filings in Novell - Why SCO Wants No Mention of IBM or Groklaw - Updated
Authored by: Anonymous on Wednesday, September 05 2007 @ 11:29 PM EDT
"Novell nevertheless implies that it intends to introduce news articles
that would contradict that Order, on the asserted basis that such articles also
contain admissions by SCO executives. In light of the narrowed issues for trial,
no such articles or admissions would be relevant; accordingly, Novell's only
purpose in seeking their admission would be to improperly prejudice SCO."

Oh boy. At least they finally admit it: SCO Executives are detrimental to
their case.

We've known that for a while.

How in the world can they possibly get a judge to block SCO's own words being
used against them? After all, that's what started all this business in the
first place!

[ Reply to This | # ]

Yet More Filings in Novell - Why SCO Wants No Mention of IBM or Groklaw - Updated
Authored by: Khym Chanur on Thursday, September 06 2007 @ 06:15 PM EDT

Novell asserts that it does not intend to elicit testimony or introduce evidence concerning the commentary on the IBM litigation; accordingly, the Court should so Order the parties to direct their representatives and witnesses to refrain from any such reference. Novell nevertheless implies that it intends to introduce news articles that would contradict that Order, on the asserted basis that such articles also contain admissions by SCO executives.

So is your analysis that there's news articles that mention Groklaw (or instances where SCO execs talk about Groklaw), and SCO is trying to keep these out of court? Or is SCO claiming that Novell is actually going to try use Groklaw itself as a source for quotes from SCO execs?

---
Give a man a match, and he'll be warm for a minute, but set him on fire, and he'll be warm for the rest of his life. (Paraphrased from Terry Pratchett)

[ Reply to This | # ]

Why be so talky Darl?
Authored by: Jose on Thursday, September 06 2007 @ 08:18 PM EDT
>> What I don't understand, unless this was intended as FUD lawsuit, is
why the SCO legal team let the SCO executives say so much to the media in the
first place.

Off the top of my head, I'd guess SCOX.

I think stockholders own SCOX which means they own SCO, Darl, and the legal
team.

Did SCOX do anything special in these last 4 years? Oh, I don't know, maybe.

[ Reply to This | # ]

The reason McBride said so much in the media
Authored by: Anonymous on Monday, September 10 2007 @ 04:02 PM EDT
McBride intended to artificially increase the value of SCO stock. McBride's
public statements constitute illegal activity, and I have personally filed
several complaints with the SEC. Darl McBride and Blake Stowell should be
arrested for swindling the public and personally gaining from the intentional
manipulation of SCO Group Inc. (SCOX) stock value. The actions and public
statements of McBride and Stowell were just as illegal as the actions of upper
management at Enron and WorldCom. SCOX stock went from over $25 to $0.68.
Investors have been robbed, and the public trust has been violated. Hopefully,
now that this frivolous lawsuit is almost over, the SEC will finally do its job
and put these criminals away for good.

[ Reply to This | # ]

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