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
|