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SCO's Attempt to Exclude Mention of IBM and Groklaw in the Novell Trial - all as text
Wednesday, September 05 2007 @ 08:39 PM EDT

I thought it would be useful to put in one spot all the filings regarding the SCO motion in limine to exclude all mention of IBM and Groklaw or other commentary from the Novell trial, so you can read them together in order as text:

It isn't always practical to do this, because of length, but this is a very short motion. So here they are. This is one of the motions that will be argued on September 11th, so those planning to attend can use this as a way to prepare before they go.

You've seen the original SCO motion as text already, so you can skip the first one if you wish. To make it a bit easier, I've created links to each filing so you can enjoy hopping around without getting confused. The link takes you straight to the meat of the filing, skipping the long headers listing all the lawyers. And at the end, before the certificate of service, I've put a link to bring you back to the top. And I've marked in colored text the most significant bits:


[ SCO Motion ] [ Novell's Opposition ] [ SCO Reply ]


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

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


[ back to top ]

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

5

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

MORRISON & FOERSTER LLP
Michael A. Jacobs, pro hac vice
Eric M. Acker, pro hac vice
Kenneth W. Brakebill, pro hac vice
Marc J. Pernick, pro hac vice
David E. Melaugh, pro hac vice
[address, phone, fax]

ANDERSON & KARRENBERG
Thomas R. Karrenberg, #3726
John P. Mullen, #4097
Heather M. Sneddon, #9520
[address, phone, fax]

Attorneys for Defendant and Counterclaim-Plaintiff Novell, Inc.

_________________________

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

__________________________

THE SCO GROUP, INC., a Delaware corporation,

Plaintiff and Counterclaim-Defendant,

v.

NOVELL, INC., a Delaware corporation,

Defendant and Counterclaim-Plaintiff.

NOVELL'S OPPOSITION TO SCO'S
MOTION IN LIMINE TO EXCLUDE
ALL EVIDENCE RELATED TO
OTHER LITIGATION AND
COMMENTARY THEREON


Case No. 2:04CV00139

Judge Dale A. Kimball

Defendant and Counterclaimant Novell, Inc. ("Novell"), through its undersigned counsel, hereby submits its Opposition to SCO's Motion In Limine to Exclude All Evidence Related to Other Litigation and Commentary Thereon.

ARGUMENT

I. A TOTAL BAR ON REFERENCES TO SCO V. IBM IS OVERBROAD AND UNNECESSARY.

Novell does not anticipate that the SCO v. IBM litigation will play a significant role in the upcoming trial in this matter.1 Novell does not intend to introduce or rely on any of the Court's rulings in that litigation. Nevertheless, a blanket prohibition against any mention of the SCO v. IBM litigation is unwarranted and would potentially bar various legitimate references to that litigation. For example, Novell may seek to:

  • Use statements made by SCO or its employees in declarations, depositions, or briefing in the SCO v. IBM litigation;
  • Introduce exhibits that reference the SCO v. IBM litigation, such as SCO's financial filings;
  • If SCO witnesses attempt to minimize the value or importance of the Sun SCOsource license, cross-examine witnesses concerning the damages claims SCO made in SCO v. IBM.2

1

For this reason, Novell opposes a total bar on references to SCO v. IBM and proposes instead to proceed on a case-by-case basis, with the shared understanding that the SCO v. IBM litigation will not feature prominently in either side's case.

II. NOVELL DOES NOT INTEND TO ELICIT TESTIMONY CONCERNING COMMENTARY ON THIS LITIGATION.

Novell does not share SCO's view of the commentary concerning the SCO v. IBM litigation. (Mot. at ¶ 4 (complaining of "anti-SCO bias").) To the contrary, the close scrutiny the Linux community &emdash; Groklaw in particular &emdash; has brought to bear on SCO's litigation is a testament to the power of open source ideals and their potential for application to spheres outside software.

That said, Novell does not intend to introduce evidence or elicit testimony concerning the commentary on this litigation. Should the Court find it appropriate, Novell would not oppose an order barring such testimony, provided it applies equally to both parties.3 Any such order should, however, be clear that it has no application to, for example, news articles containing admissions by SCO executives even if such articles otherwise contain "commentary" on the SCO v. IBM litigation.

CONCLUSION

For the reasons stated above, Novell requests that the Court deny SCO's Motion In Limine to Exclude All Evidence Related to Other Litigation and Commentary Thereon as it concerns the SCO v. IBM litigation and does not oppose the motion as it concerns third-party commentary on that litigation.

2

DATED: August 31, 2007

ANDERSON & KARRENBERG

By: /s/ Heather M. Sneddon
Thomas R. Karrenberg
John P. Mullen
Heather M. Sneddon

-and-

MORRISON & FOERSTER LLP
Michael A. Jacobs, pro hac vice
Eric M. Acker, pro hac vice
Kenneth W. Brakebill, pro hac vice
Marc J. Pernick, pro hac vice
David E. Melaugh, pro hac vice

Attorneys for Defendant and Counterclaim-Plaintiff Novell, Inc.


[ back to top ]

3

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 31st day of August, 2007, I caused a true and correct copy of NOVELL'S OPPOSITION TO SCO'S MOTION IN LIMINE TO EXCLUDE ALL EVIDENCE RELATED TO OTHER LITIGATION AND COMMENTARY THEREON to be served to the following:

Via CM/ECF:

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

Stuart H. Singer
William T. Dzurilla
Sashi Bach Boruchow
BOIES, SCHILLER & FLEXNER LLP
[address]

David Boies
Edward J. Normand
BOIES, SCHILLER & FLEXNER LLP
[address]

Devan V. Padmanabhan
John J. Brogan
DORSEY & WHITNEY, LLP
[address]

Via U.S. Mail, postage prepaid:

Stephen Neal Zack
BOIES, SCHILLER & FLEXNER LLP
[address]

/s/ Heather M. Sneddon


1 Novell reserves the right to revisit this issue should there be any subsequent adjudication or trial in this action or any enlargement of the issues for trial beyond that contemplated by the August 17, 2007 Joint Statement.

2 IBM and Sun both bought out their ongoing SVRX royalty obligations over a decade ago. In 2003, Sun bought a SCOsource license so that Sun could open source the SVRX source code in its "OpenSolaris" product without breaching confidentiality restrictions from the 1994 agreement. SCO accused IBM of doing essentially the same thing (releasing confidential code to the public by way of open source products), and sought hundreds of millions of dollars in damages. SCO's argument, and its expert analysis of its purported IBM damages, are therefore relevant impeachment evidence should SCO attempt to minimize the significance of the provisions lifting confidentiality restrictions in the Sun SCOsource license.

3 Novell reserves the right to revisit this issue should there be any subsequent adjudication or trial in this action or any enlargement of the issues for trial beyond that contemplated by the August 17, 2007 Joint Statement.

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

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 REPLY MEMORANDUM IN
SUPPORT OF ITS 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, Inc. ("SCO"), respectfully submits its Reply Memorandum in support of its Motion In Limine to Exclude All Evidence Related to Other Litigation and Commentary Thereon.

ARGUMENT

Novell's Opposition fails to address any of SCO's bases for moving to preclude reference to the SCO v. IBM litigation. While Novell acknowledges that the IBM litigation should not "play a significant role" in the trial, it has advanced no basis for that litigation to play any role in the trial. Raising three potential scenarios, Novell fails to explain why reference to the IBM litigation would be necessary or relevant under any scenario, or to explain why such references would not be unduly prejudicial.

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.

The same is true for the exhibits Novell intends to admit. To the extent that SCO's financial records would be relevant or admissible at trial, the purpose for which Novell might offer those records would not necessarily reach all statements contained in those records. Novell has not proffered what relevance statements relating to the IBM litigation would have on any

matter to be tried in this action. Absent a showing of need for the admission of these statements within the financial records, the exhibits should be redacted to remove reference to irrelevant and prejudicial information.

Finally, Novell suggests that specific reference to the IBM matter may be a proper basis for cross-examination and impeachment of SCO witnesses, in the event that any witness attempts to minimize the importance of the Sun SCOsource license. Novell has not set forth how "SCO's argument," or its expert analysis of damages arising from the IBM litigation, would be proper cross-examination material for any particular witness who expresses an opinion regarding the significance of these provisions. Nor has Novell demonstrated how such opinion would be material, so as to warrant the introduction of extrinsic evidence for impeachment. See, e.g., Fisher v. Champion, 943 F.2d 57, 1991 WL 166402, at *2 (10th Cir. Aug. 28, 1991) (Ex. A) (approving trial court's exclusion of extrinsic evidence offered for impeachment pertaining to a collateral matter). Until and unless Novell makes such a showing, Novell, its representatives and witnesses should be precluded from referencing the IBM litigation before the 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,

2

gratuitous information regarding the IBM litigation can and should be redacted therefrom. Novell should be directed to alert the Court outside the presence of the jury in the event that it seeks to admit any such article, in order to afford the Court the opportunity to determine the admissibility of the article, as well as the propriety of redacting any unnecessary reference to irrelevant matters, and particularly the IBM litigation, prior to its admission.

CONCLUSION

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 4th day of September, 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


[ back to top ]

3

CERTIFICATE OF SERVICE

Plaintiff/Counterclaim-Defendant, The SCO Group, Inc., hereby certifies that on this 4th day of September, 2007 a true and correct copy of the foregoing SCO'S REPLY MEMORANDUM IN SUPPORT OF ITS 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

5


  


SCO's Attempt to Exclude Mention of IBM and Groklaw in the Novell Trial - all as text | 157 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 @ 08:49 PM EDT
Please place corrections, or perceived mistakes, under this comment.

A summary in the title field of your comment is a great help.

---
Free minds, Free software

[ Reply to This | # ]

[NP] News Picks discussion here, please
Authored by: Aladdin Sane on Wednesday, September 05 2007 @ 08:51 PM EDT
Comments about News Picks here.

Please put the title of the News Pick in your comment title so we know what you are referring to.

Thanks.

---
Free minds, Free software

[ Reply to This | # ]

[OT] Off Topic posting allowed here.
Authored by: Aladdin Sane on Wednesday, September 05 2007 @ 08:54 PM EDT
Please place Off Topic comments beneath this one, so they are all in one place.

While limited HTML is allowed, I do not think we can post in blue text.

Thanks.

---
Free minds, Free software

[ Reply to This | # ]

SCO's attempt hide the Scam
Authored by: rsteinmetz70112 on Wednesday, September 05 2007 @ 08:59 PM EDT
This seems to be an attempt of keep the jury from hearing about the scam Darl
and Co. attempted. I think SCO believes if the jury doesn't hear about the scam
then BSF will be able to spin some yarn about the "honest"
disagreement.

---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

Credibility
Authored by: Anonymous on Wednesday, September 05 2007 @ 09:23 PM EDT
Of course, it would prejudice SCOG's case if some evidence would
cause the jury to scrutinize the credibility of SCO's evidence and witnesses
(Motion, paragraph 3.)

---
--Bill P, not a lawyer. Question the answers, especially if I give some.

[ Reply to This | # ]

"another proceeding"
Authored by: Anonymous on Wednesday, September 05 2007 @ 09:26 PM EDT
Witness and counsel alike could refer to "another proceeding,"
This is hilarious, but consistent. In SCO's world, the more vague you are, the better your argument.

[ Reply to This | # ]

Can Novell paint SCO as a school-yard bully?
Authored by: Filias Cupio on Wednesday, September 05 2007 @ 09:38 PM EDT
The history of the SCO litigation can (most of us would say accurately) be
portrayed as SCO acting like a thug, threatening all sorts of violence to rip
off its victims, only to have the victims fight back and beat it soundly.*

Assuming a jury trial, are Novell's lawyers going to try to paint such a
picture? Is this what SCO are trying to avoid with this motion? If the motion is
granted, will it have the desired (by SCO) effect? What are the odds of it being
granted?

Do I understand correctly that if the motion is granted, Novell can still
attempt to introduce evidence contrary to the motion, they just have to ask the
judge first?

* Here is a tale from my university days. There was an important football match
being played at university A against university B. (It was the penultimate round
of a round-robin tournament, A and B were the only undefeated teams.) As it was
a significant match, there were students visiting university B as spectators.
The day after the game, there was a report university A's student newspaper:
there had been a fight after the game, a university A student was hospitalized
and university B student arrested for assault. Next day there was a new story:
charges against university B student had been dropped and the hospitalized
university A student charged with assault.

[ Reply to This | # ]

Gratuitous!
Authored by: Ed L. on Wednesday, September 05 2007 @ 10:00 PM EDT
"gratuitous information regarding the IBM litigation can and should be redacted..."
That means you, PJ! You ungrateful ingrate...

(Joke :-)

---
"OOXML - Not exactly the best standard money can buy."

[ Reply to This | # ]

Show up with IBM Laptops ...
Authored by: jcjodoin on Wednesday, September 05 2007 @ 10:00 PM EDT
So what happens if Novell's legal team shows up with IBM
laptops, say running SUSE?

And there just happens to be a default IBM branded screensaver
running on the laptops? Or that the background image is
an IBM branded one?

Is SCOG going to throw a fit because Novell is using IBM
equipment? (Note to self ... of course they are ...)

To me this just seems silly.

~sigh~

I can't wait 'til this is over.

jeffrey

[ Reply to This | # ]

Isn't this standard stuff?
Authored by: Anonymous on Wednesday, September 05 2007 @ 10:05 PM EDT
I haven't read all of the docs, but wouldn't Novell be doing the same to keep
folks from reading the pro SCO sites? Aren't jurors typically admonished from
seeking material outside the court? I'm just surprised SCO is going into such
detail about WHAT they want excluded.

"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. "

Perhaps "self-described former paralegal named Pamela Jones" could
answer this one? :)

[ Reply to This | # ]

oh well...
Authored by: vruz on Wednesday, September 05 2007 @ 10:05 PM EDT
don't scrutinise us, don't criticise us, don't smoke, stop the press, don't
listen to her, don't step on the grass, don't feed the bears, don't let those
horrible reports based on court documents surface in the public light.

guess what sco boys...

the world will go on without you, you had a chance to jump train before
derailing
now it's already too late.

only waiting to see you handcuffed.

(and that goes for BS guys too)




---
--- the vruz

[ Reply to This | # ]

  • Truth be told --- - Authored by: Anonymous on Wednesday, September 05 2007 @ 11:29 PM EDT
Is this even remotely likely to succeed?
Authored by: sirwired on Wednesday, September 05 2007 @ 10:06 PM EDT
It seems that all SCO can really offer up is that the IBM case should not be
mentioned because it would be prejudicial to SCO. Is that the best they can
do?

It reminds me of a scene from Liar, Liar, where Jim Carrey stands up during a
trial and announces the classic "I object!" Judge: "Why?"
Jim Carrey: "Because it's completely devstating to my case!" Judge:
"Overruled."

Is BSF just letting some low-end college interns take over the case? SCO
complains that Novell has not explained how references to the IBM case would be
helpful on cross-exam. Err... maybe Novell could not go into specifics because
the trial hasn't actually started yet and Novell has no idea what SCO's
witnesses will say?

SirWired

[ Reply to This | # ]

Is there not a rule ...
Authored by: Anonymous on Wednesday, September 05 2007 @ 10:07 PM EDT
Is there not a rule that says that you can not assert mutually contradictory
things in different courts?

It would be beyond perverse for SCO to argue different things before Judge K. in
Novell and IBM and have the Novell lawyers unable to point that out.

[ Reply to This | # ]

Blackadder meets SCO v. Novell
Authored by: SirHumphrey on Wednesday, September 05 2007 @ 10:17 PM EDT
Novell: "And another thing Baldrick, don't mention the word Groklaw around
SCO's lawyers. It makes them very nervous"
Baldrick: "So you won't be mentioning it either, then?"
Novell: "No"
Novell: "Well, not very often"

Baldrick: My uncle was in a court case once.
Novell: Really?
Baldrick: Yeah, it was called McBride.
Novell: And what did he play?
Baldrick: First mouthpiece. McBride wore him in the fight scenes.
Novell: So he was a stunt mouthpiece.
Baldrick: Yes.
Novell: Did he have a large part?
Baldrick: Depends who's playing McBride.


BSF lawyers enter in the middle of a conversation

BSF lawyer 1: …lest you continue in your quotation, and mention the name of
the Paralegal website.
BSF lawyer 2: Oh-ho-ho… never fear, I shan't do that.
Novell: By the Paralegal website, I assume you mean Groklaw.
BSF: Aaah!
BSF: "Expedited deferrals, legal delays, we won't make amends."
BSF: Aaah!
Novell: What was that?
BSF lawyer : We were exorcising evil spirits. Being but a mere defendant,
you will not know the great vexatious lawsuit tradition that one does never
speak the name of the Paralegal website.
Novell: What, "Groklaw"?
BSF: Aaah! "Expedited deferrals, legal delays, we won't make
amends." Aaah-haa!
Novell: Good lord, you mean you have to do that every time I say
"Groklaw"?
BSF: Aaah! "Expedited deferrals, legal delays, we won't make
amends." Aaah-aaah-haa!
BSF lawyer : Will you please stop saying that! Always call it "the
Paralegal website".
Novell: So you want me to say, "the Paralegal website"?
BSF: Yes!
Novell: Rather than "Groklaw"?
BSF: Aaaaah! "Expedited deferrals, legal delays, we won't make
amends." Aaah-haa! Oww!
Judge Kimball enters the room
Judge Kimball: For heaven's sake, what is all this hullabaloo, all this
shouting and screaming and yelling blue murder? Why, it's like that website we
saw the other day, what was it called… uh…
Novell: "Groklaw", sir?
BSF: Aaaaah! "Expedited deferrals, legal delays, we won't make
amends." Aaah! Oooh!!
Judge Kimball: No, no, no, no, it was… it was called "The Emperor's New
Clothes".
Novell: Oh yes, of course. "The Emperor's New Clothes"… Not
"Groklaw".
BSF: Aah! "Expedited deferrals, legal delays, we won't make
amends." Owwww!
Novell: Are you sure you want these people to stay?

A bit later in the proceedings
BSF lawyer : From a website connected with a Paralegal …
Novell: (walking in unannounced) That's Groklaw, isn't it?
BSF: Aaah! …

Later
BSF Lawyer 1: It was a play, sir! A play! Look, all the words you heard
written down on that paper.
Novell: Textbook stuff again, you see. The litigant's vanity always makes
them make one tiny but fatal mistake. Theirs was to have their entire conspiracy
printed and published in play manuscript form. Take them away!
BSF Lawyer 2: Alas! We beg for mercy! Mercy!
BSF Lawyer 1: Mercy, please, sir!
Novell: I've only got one thing to say to you… "Groklaw"!

[ Reply to This | # ]

SCO's Attempt to Exclude Mention of IBM and Groklaw in the Novell Trial - all as text
Authored by: karl on Wednesday, September 05 2007 @ 10:21 PM EDT
We need all the stupid stuff we said prevented from being heard at the trial. It's only reasonable, your honor. If Novell brings that stuff up it will make us look like crooks, and that's prejudicial.

We're whipping up some fresh new lies and we're not going to be able to do that if Novell can introduce into evidence stuff we've said hundreds of times in public for years.

[ Reply to This | # ]

  • You mean, like.... - Authored by: Anonymous on Thursday, September 06 2007 @ 12:18 AM EDT
Error in SCO's filing?
Authored by: earthforce_1 on Wednesday, September 05 2007 @ 10:32 PM EDT
Did anybody else notice:
They referred to this website as groklaw.com, not
groklaw.net?

[ Reply to This | # ]

SCO's (Darl's) Statement's should be excluded on grounds of self incrimination
Authored by: David Dudek on Wednesday, September 05 2007 @ 10:49 PM EDT
Novell did not inform SCO (Darl)of their rights that anything they said may be
used against them in a court of law and that they had the right to remain
silent!

---
David Dudek

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SCO's Attempt to Exclude Mention of IBM and Groklaw in the Novell Trial - all as text
Authored by: webster on Wednesday, September 05 2007 @ 11:53 PM EDT
..
..
1. SCO's Motion: Why would they even suggest such a thing? Why would Novewll
taint their walkover trial with any irrelevant references to media commentary,
which would be hearsay anyway? Their own commentary is fair game, however,
particularly if it is about where is SVRX code and who licensed it. Some of
that commentary occurred in relation to the IBM suit. That commentary would
become spectacularly relevant if it contradicted any SCO apportionment claims in
the Novell accounting.

2. Novell's Opposition: With their relentless realism they oppose a blanket
ban and propose a case-by-case assessment of the need for any SCO v. IBM
material. They propose such with the understanding that SCO v. IBM will not
play a prominent role "in either side's case." SCO couldn't possibly
mind such fairness. Then Novell reminds SCO that statements by their executives
in the media are fair game, even if there is commentary with the article.

3. SCO's Reply: They allege prejudice but with little explanation. They
suggest redaction. They don't want to face their own FUD.

4. Conclusion: This doesn't matter. Whatever the decision on this motion,
trial will become a case-by-case situation depending on what pops up over the
sticky SCOfolk.

5. Why would they throw in Groklaw? Why would they think Novell would throw in
Groklaw? GL is irrelevant hearsay. They must think everyone else thinks like
they do.

---
webster


© 2007 Monopoly Corporation. ALL rights reserved. Yours included.

[ Reply to This | # ]

Not about the trial, its all about their appeal
Authored by: Anonymous on Thursday, September 06 2007 @ 01:28 AM EDT
That's why they have worked so hard to get the name "Groklaw" in front
of the judge... It's not because they fear the obvious, they know they'll lose
big, and they know everything they stupidly said will come back to haunt them.

But when Kimball issues his final decision, they will appeal because NO MATTER
WHAT KIMBALL DOES SOMEONE ON GROKLAW WILL HAVE ALREADY SAID IT! Thereby proving
that Kimball read Groklaw and was influenced by it.

So they are sowing the seeds now, for the public and for the judge. It has
nothing to do with the actual trial.

Yes, my tinfoil hat may be a bit tight, but this is SCO we're talking about, and
that would explain a lot of their very public Groklaw spewings that went
nowhere, like the alleged subpoena. Solely for the PR, get the name out there
loudly and often. We've often wondered how they could not see that constantly
ranting about it only drew more attention, well, that's because attention was
the goal all along.

[ Reply to This | # ]

SCO's Attempt to Exclude Mention "SysV in Linux"
Authored by: Anonymous on Thursday, September 06 2007 @ 03:55 AM EDT
Maybe that's what it is all about... the claims of millions of lines of SysV
code in Linux.

After all, they didn't claim millions of lines of UnixWare code (nor can they
really, there never was wide distribution of UnixWare source code).

What that means is that "SCO's IP in Linux" is really Novell's - so
they have a material interest in *every* SCOsource license. So the SCO bosses'
public claims about what was being licensed via SCOsource are very important to
Novell.

Mark H

P.S. One thing I've wondered about but has not come up in the cases, that the
purpose of the APA seems to have been to transfer the UnixWare technology to
Santa Cruz so that they could merge this code base with that of OpenServer to
create a new product (the "merged product"). AFAIK that never
happened... but it does explain a lot of the APA that has been taken out of
context by SCO... e.g. if a new merged product was the goal, there would be no
need to transfer the SysV copyrights because the "merged product"
would have its own copyright - in the same way that e.g. HP-UX has its own
copyright.

[ Reply to This | # ]

I think I've got it.
Authored by: Ian Al on Thursday, September 06 2007 @ 05:12 AM EDT
With its request for clarification, SCOG hope to show that all licences are
UnixWare including IBM's and so all the decisions by the Judge relating to SVRX
are interesting, but moot.

So, SCOG can continue to sue IBM over the contract and can keep the Sun and
Microsoft money.

Still, IBM is irrelevant to the SCOG v Novell case even in its widened state.
All references to the IBM case should be generalised in the manner 'Novell are
not permitted to waive cancellation of contracts and lawsuits against another
well-known computer company I could mention'.

Also, all of Groklaw's spin in the IBM case is clearly irrelevant to the whole
of the Novell case in which the name IBM never appears. It is most important
that Groklaw's comments on IBM are not drawn to the jury's attention. The jury
should only not be allowed by jury instructions to go to the Groklaw site to
look at the Novell comment. The instructions should not include anything about
not going to Groklaw site to look at the IBM spin. They should, instead, be told
to only review evidence presented to them in the trial.

Well, I've reviewed the above summary and it makes a lot of sense when compared
with the SCOG wording. It's still nonsense, though.

I don't got it, do I?

---
Regards
Ian Al

Linux==Genuine Advantage

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SCO's Attempt to exclude SCO statements
Authored by: Sunny Penguin on Thursday, September 06 2007 @ 07:29 AM EDT
SCOX could care less about "Grocklaw itself", SCOX needs to ban the
statements made by SCOX that are archived on Groklaw. If all Groklaw data is
banned, any quoted comment by SCOX execs can be banned as "being from
Groklaw" due to the quote database.
When I served on a jury, we did not have direct access to the internet at all.

---
If you love your bike, let it go.
If it comes back, you high sided.....

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SCO did it
Authored by: Anonymous on Thursday, September 06 2007 @ 08:16 AM EDT
SCO are ones who brought SCO v IBM into the SCO v Novell case. SCO did it in
their 2nd amended complaint (docket #96). Wouldn't that make SCO v IBM relevant?


IANAL but, to me it seems that excluding all mention of SCO v IBM would be the
same as amending their complaint less than 3 weeks before the trial is to
start.

Isn't this one of those; "You brought it up, live with it" situations?

[ Reply to This | # ]

  • SCO did it - Authored by: jmc on Thursday, September 06 2007 @ 09:38 AM EDT
What Jury?
Authored by: DaveJakeman on Thursday, September 06 2007 @ 08:54 AM EDT
Just a gentle reminder that, despite SCO's concern about the possible effects of
educating SCO's precious jury, we are looking at a bench trial if Novell get
their way.

Maybe this is why SCO is so aghast at the prospect of a bench trial: they can't
"uneducate" the Court and they've already gone well out of their way
to irritate the heck out of him.

---
Only two things are infinite: the universe and human stupidity – and I'm not
sure about the former. -- Einstein

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A-B-A is Good
Authored by: DaveJakeman on Thursday, September 06 2007 @ 09:24 AM EDT
I like this A-B-A all-in-one-place motion format. I would welcome this for
other motions too - even longer ones.

---
Only two things are infinite: the universe and human stupidity – and I'm not
sure about the former. -- Einstein

[ Reply to This | # ]

Prejudicial language
Authored by: Quila on Thursday, September 06 2007 @ 12:50 PM EDT
"Novell nevertheless implies that it intends to introduce news articles
that would contradict that Order"

SCO forms their desired order in their little heads, and then says Novell
intends to willfully violate it. SCO has been caught so many times refusing to
comply with orders that they'll take any shot at making it look like their
opponents do the same.

No, SCO, Novell would like to COMPLY with an order that disallows extra
commentary with an exception for news articles with SCO executive statements in
them.

[ Reply to This | # ]

Liklihood of Kimball having amnesia?
Authored by: Anonymous on Thursday, September 06 2007 @ 01:28 PM EDT
Do you suppose that Kimball will have forgotten that:

A) this case is directly a result of the IBM case; had SCO not started the whole
thing with IBM, there would be no Novell case,

B) all the things SCO doesn't want the jury to hear now are the same things
McBride was loudly pushing to anyone who would listen,

C) SCO itself has argued that the two cases are linked, that they have played
that linkage several times already when they were trying to get motions stayed
or delayed,

D) SCO claims that Novell's actions were instigated on IBM's behalf,
specifically to aid IBM in their litigation after IBM loaned them money, and,

E) SCO has consistently misrepresented the facts, the law, the Court's orders
and the agreements, even to the extent of blatantly contradicting themselves.

So unless Kimball has a very sudden and complete memory loss, I can't imagine
this motion going very far.

[ Reply to This | # ]

Not This Groklaw
Authored by: Anonymous on Thursday, September 06 2007 @ 01:44 PM EDT

Hey, it isn't *this* Groklaw they wish to exclude. They wrote:

"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..."

That didn't seem right to me, so I looked at the URL and sure enough, *we* are
Groklaw.net. They can mention us in the trial!

Methinks BSF wants to mislead anyone reading the transcripts who doesn't know of
Groklaw already. ;-})

[ Reply to This | # ]

SCO's Attempt to Exclude Mention of IBM in the Novell Trial
Authored by: Anonymous on Thursday, September 06 2007 @ 02:07 PM EDT
SCOG has asked for a total bar on references to SCO v. IBM in SCO v. Novell.

It is tempting to allow this bar because Novell does not need to reference SCO v. IBM to carry its equitable claims.

But it is dangerous to allow this bar because SCOG will use it as a precedent for demanding a total bar on references to SCO v. IBM in any future actions brought by Novell, including criminal complaints arising from Darl McBride's public behavior etc.

Even worse, SCOG will twist it into a precedent for demanding a total bar on references to SCO v. Novell in SCO v. IBM! I know this sounds ludicrous but consider the source.

-Wang-Lo.

[ Reply to This | # ]

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