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| Judge Kimball Denies Two More SCO Motions - Updated - What does "for impeachment purposes" mean? |
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Tuesday, September 11 2007 @ 06:57 PM EDT
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Judge Dale Kimball has now denied SCO's Motion to Strike Novell's Exhibits Not Previously Disclosed and SCO's sealed Motion to Exclude the Testimony of Terry Musika:457 -
Filed & Entered: 09/11/2007
Order on Motion to Strike
Docket Text: ORDER denying [390] Motion to Strike Exhibits; denying [405] Motion to Exclude Testimony. Signed by Judge Dale A. Kimball on 9-11-07. (sih) That explains why today's hearing was cancelled, since the only motion still on the docket for the day was this motion regarding Novell's exhibits.
You'll notice that one of the reasons why Judge Kimball denied SCO's motion to exclude exhibits is that Novell could use the same exhibits for impeachment purposes anyway: A majority of the documents will only be used if SCO advances a new theory, and such documents could have been used in any event for impeachment purposes without being disclosed. Many other documents are documents with which SCO is familiar. Although there are several exhibits, the court concludes that such a review could be accomplished in the time frame SCO has had between the disclosures and the trial date. SCO will have almost a month to review the documents and determine its response. Moreover, many of the documents on the list are documents with which SCO is familiar. Some asked what that meant, so here are the rules from the Federal Rules of Evidence that apply, 607-611, and you'll see that it's talking about attacking the credibility of a witness:
Rule 607. Who May Impeach
The credibility of a witness may be attacked by any party, including the party calling the witness.
Notes
Rule 608. Evidence of Character and Conduct of Witness
(a) Opinion and reputation evidence of character.
The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
(b) Specific instances of conduct.
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused's or the witness' privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness.
Notes
Rule 609. Impeachment by Evidence of Conviction of Crime
(a) General rule.
For the purpose of attacking the character for truthfulness of a witness,
(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and
(2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.
(b) Time limit.
Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.
(c) Effect of pardon, annulment, or certificate of rehabilitation.
Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.
(d) Juvenile adjudications.
Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.
(e) Pendency of appeal.
The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.
Notes
Rule 610. Religious Beliefs or Opinions
Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced.
Notes
Rule 611. Mode and Order of Interrogation and Presentation
(a) Control by court.
The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
(b) Scope of cross-examination.
Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.
(c) Leading questions.
Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.
Notes
You have to tell the other side and the court what exhibits you plan to use to present your case, but you don't have to tell what you will pull out of your hat if the other side puts on a witness who testifies to something you think is not true. That's when the "does this transcript refresh your memory?" stuff happens. If Darl McBride gets on the witness stand, I'm sure you can imagine what Novell will have stacked on their table just in case he says something different than he did in 2003 and 2004. It's about giving the jury the full picture, not just the one the other side paints. And in this situation, Novell has materials it wants to use if SCO argues for more than zero in the apportionment part of the trial. Since it's clear SCO wants to do so, Novell will be ready with things like SEC filings and the like. But if SCO doesn't try to alter its position, then that evidence won't appear, unless someone says something that contradicts an SEC filing or some other evidence Novell has. Then they can use it, no matter what, and there is no need to present it in advance. Usually a paralegal or another lawyer is in the courtroom keeping track of who says what and checking the database on a laptop for inconsistencies and evidence that might be helpful. There is special tracking software just for such a purpose. And both sides will have done research on the other side's witnesses and experts too, hoping they were convicted of perjury a few years ago.
There are two sealed filings today as well: 458 -
Filed: 09/10/2007
Entered: 09/11/2007
Sealed Document
Docket Text: **SEALED DOCUMENT** MEMORANDUM IN OPPOSITION re [419] Plaintiff's MOTION FOR RECONSIDERATION OR CLARIFICATION OF THE COURTS AUGUST 10, 2007 ORDER re [377] Order on Motion for Partial Summary Judgment,, Order on Motion for Summary Judgment, filed by Counter Claimant Novell, Inc., Defendant Novell, Inc.. (blk) Modified on 9/11/2007 by correcting filed date to 9/10/07(blk).
459 -
Filed: 09/10/2007
Entered: 09/11/2007
Sealed Document
Docket Text: **SEALED DOCUMENT** DECLARATION OF DAVID E MELAUGH re [458] Sealed Memorandum in Opposition, filed by Counter Claimant Novell, Inc., Defendant Novell, Inc.. (blk)
***************************************
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
_________________________________
THE SCO GROUP, INC.,
Plaintiff,
vs.
NOVELL, INC.,
Defendant.
_______________________________
ORDER
Civil Case No. 2:04CV139DAK
_______________________________
This matter is before the court on The SCO Group, Inc.'s ("SCO") Motion to Strike
Exhibits on Novell's Revised Exhibit List Not Previously Disclosed and SCO's Sealed Motion to
Exclude Testimony of Terry L. Musika. The parties waived oral argument on these motions.
Having fully considered the materials submitted by the parties as well as the facts and law
relevant to these motions, the court enters the following order.
SCO's Motion to Strike Exhibits Not Previously Disclosed
Pursuant to Rules 16 and 37 of the Federal Rules of Civil Procedure, SCO seeks an order
prohibiting Novell from introducing into evidence at trial 187 documents that Novell failed to
designate as exhibits prior to the parties' pretrial disclosure deadline of August 2, 2007. Novell
disclosed these exhibits on August 22 and 23, 2007, three weeks prior to trial. Novell argues that
the designation of these exhibits is harmless because a majority of the exhibits will be used only
if SCO advances a new theory of apportionment at trial and the remaining exhibits are all
1
materials that have been exchanged by the parties during discovery. Novell also claims that its
supplemental disclosures were substantially justified because they were in response to the court's
August 10, 2007 Memorandum Decision and Order ("August 10 Order").
Rule 37 provides that "[a] party that without substantial justification fails to disclose
information required by Rule 26(a) or 26(e)(1),,, is not, unless such failure is harmless,
permitted to use as evidence at a trial . . . any witness or information not so disclosed." Fed. R.
Civ. P. 37(c)(1). Also under Rule 37, "if a party fails to obey an order entered under Rule 26(f),"
the court "may make such orders in regard to the failure as are just." These orders can include an
order prohibiting the disobedient party "from introducing designated matters in evidence." Id.
37(b)(2)(B).
SCO relies on Geisting v. Storz Instrument Co., 171 F.R.D. 311, 311 (D. Kan. 1997), in
which the court struck exhibits from a supplemental exhibit list when the party failed to obtain
leave of court to disclose exhibits "well after the discovery deadline." Id. The court, however,
has broad discretion in determining whether a failure to meet the disclosure requirements is
substantially justified. Woodworker's Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985,
993 (10th Cir. 1999).
The parties agree that the court should employ a four-part test to determine whether the
late disclosure of exhibits is harmless: (1) the prejudice or surprise to the party against whom the
testimony is offered; (2) the ability of the party to cure the prejudice; (3) the extent to which
introducing such testimony would disrupt the trial; and (4) the moving party's bad faith or
willfulness. Id. at 993.
Given the changes in the focus of the case as a result of the court's August 10 Order, the
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court finds no willfulness or bad faith in Novell's late designation of exhibits. There is also no
evidence that the exhibits would disrupt the trial. With respect to the ability of Novell to cure the
prejudice, SCO alleges that the only cure for the prejudice it would sustain is to strike the
exhibits entirely or to continue the trial to allow it more time to review and respond to the newly
disclosed exhibits. Whereas Novell argues that there is no prejudice to cure. Therefore, the
determination of harmlessness turns on whether SCO has suffered or will suffer prejudice as a
result of Novell's introduction of exhibits at trial that were designated three weeks after the
court-imposed deadline and three weeks before trial.
SCO's stated prejudice is that Novell's belated disclosures have substantially cut into
SCO's trial preparation time. SCO asserts that "nearly 200 documents disclosed three weeks
before trial in such a complex case is not a 'small amount of material.'" In this regard, the court
recognizes that the timing of its August 10 Order has impacted both parties. The pretrial
disclosures deadline was a week before the court issued its ruling on the primary issues in the
case. Not only did the court's order significantly narrow the scope of the trial, it changed the
nature of Novell's remaining counterclaims.
The Geisting case, relied on by SCO, is distinguishable from the instant case. In
Geisting, the court addressed whether a party could disclose several documents on a
supplemental exhibit list that had not been disclosed during discovery. 171 F.R.D. at 311. The
defendant searched its files for documents in response to the plaintiff's arguments in a summary
judgment motion and failed to disclose the documents until a month before trial. Id. In this case,
the exhibits are merely being designated as exhibits. They were already exchanged during
discovery. In fact, many are SCO's own documents. Furthermore, the designation in this case
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was expeditiously made in response to the court's ruling regarding the factual issues remaining
for trial. In Giesting, the defendant took two months to disclose documents responsive to
theories in a motion for summary judgment. Id. Therefore, the court is not persuaded that a
sanction is appropriate.
While relying on the complexity of the case as a basis for its prejudice with respect to
timing, SCO does not recognize the limited factual questions left for trial. The questions of fact
remaining for trial are so limited that SCO should be able to comprehend the relevancy of the
exhibit, the use to which Novell is putting it, and formulate its response to such documents prior
to trial. A majority of the documents will only be used if SCO advances a new theory, and such
documents could have been used in any event for impeachment purposes without being
disclosed. Many other documents are documents with which SCO is familiar. Although there
are several exhibits, the court concludes that such a review could be accomplished in the time
frame SCO has had between the disclosures and the trial date. SCO will have almost a month to
review the documents and determine its response. Moreover, many of the documents on the list
are documents with which SCO is familiar.
SCO does, however, recognize the narrowness of the issues remaining for trial when it
argues that Novell's exhibit list somehow expanded while the case narrowed. SCO is correct that
there are no new claims as a result of the court's order. But SCO's contentions do not recognize
the change in the nature of Novell's remaining claims as a result of the court's analysis of those
claims in its August 10 Order. As the parties' positions with respect to the allocation of revenues
under the licenses may have been required to change, it is reasonable to expect that some of the
documentary evidence relevant to apportionment would have also changed.
4
In connection with the potential for new theories of apportionment, Novell will use 138
of the 187 exhibits only if SCO advances a new theory of apportionment. Novell concedes that
"[i]f SCO does not introduce a new theory of apportionment, Novell will not use these
documents." The court denied Novell's third motion in limine seeking to preclude SCO from
advancing any new theories at trial. The court ruled that SCO could advance arguments it
believes are consistent with the evidence to be presented at trial. This ruling, in large part, was
based on the fact that the court's August 10 Order may have affected SCO's position with respect
to the appropriate allocation of revenue. Although SCO's theory appears to be only a potential
shift from zero to de minimis, such a shift is likely in response to the court's August 10 Order
recognizing that there was some component of SVRX technology in the 2003 Sun and Microsoft
Agreements that would be considered an SVRX License under the APA.
Similarly, SCO must recognize that Novell's position on apportionment may have also
been affected by the court's August 10 Order finding that there was a question of fact as to the
value of the SVRX portion of the licenses. It appears from the pretrial documents submitted to
the court that Novell's position prior to the court's August 10 Order was that 100% of the
revenues from the 2003 Sun and Microsoft Agreements constitute SVRX Royalties. Just as
SCO's position may have changed based on the court's ruling, Novell's position may have
changed given the court's finding that there was a question of fact as to how much of the
revenues from the agreements were attributable to the licensing of SVRX technology. It would
be unfair to allow SCO the opportunity to revise its position in light of the court's ruling and not
allow Novell that same opportunity.
Although the court would have preferred for Novell to seek leave of court prior to
5
supplementing its disclosures, it concludes that the supplemental disclosures were substantially
justified as a result of the court's August 10 Order. Because the parties were equally affected by
the court's August 10 Order, there is no fundamental unfairness that will result in the trial of the
case. The court will hold Novell to its assertion, however, that 138 of the documents will not be
used unless SCO introduces a new theory of apportionment. Accordingly, SCO's Motion to
Strike Exhibits on Novell's Revised Exhibit List Not Previously Disclosed is denied.
SCO's Motion to Exclude Testimony of Terry L. Musika
SCO seeks an order excluding the testimony of Novell's expert Terry Musika as set forth
in his May 29, 2007 Expert Report on Damages and his July 31, 2007 Supplemental Expert
Report on Damages. SCO contends that Novell has not met its burden of establishing the
admissibility of Musika's testimony.
Under Rule 702 of the Federal Rules of Evidence, Novell must demonstrate that Musika
is "qualified as an expert by knowledge, skill, experience, training, or education." SCO claims
that Musika is not qualified to offer any opinion on the allocation of revenue attributable to the
SVRX technology. There is no question that Musika, as an experienced CPA, is clearly qualified
to perform the calculations in his report. Novell claims that to the extent that Musika opines on
apportionment in rebuttal, he is qualified based on his experience in intellectual property
valuation. Based on the materials provided, the court agrees that Musika's background and
experience demonstrate that he is qualified to opine on the valuation of intellectual property.
In addition to establishing his qualifications, Novell must demonstrate that his testimony
"will assist the trier of fact to understand the evidence or to determine a fact in issue." Fed. R.
6
Evid. 702. The testimony must be based on sufficient facts or data, be the product of reliable
principles and methods, and be reliably applied to the facts of the case. Id.
SCO objects to Musika's testimony because it involves only simple arithmetic and
assumes the ultimate question the trier of fact must resolve. Musika's testimony compiles
several payments made and calculates quarterly interest on the principal. While SCO is correct
that this type of calculation is conducted routinely by courts, it is also true that courts routinely
allow expert testimony for similar types of calculations. Moreover, the rules of evidence allow
experts to express opinions that embrace the ultimate issue to be decided by the trier of fact. Fed.
R. Evid. 704.
SCO further contends that Musika's testimony fails Rule 702's reliability requirement
because he employs no theory or technique other than following Novell's counsel's instructions
to include all revenue from all SCOsource licenses. But the validity of an expert's assumptions
go to the weight of the expert's testimony rather than its admissibility. United States v. Cavely,
318 F.3d 987, 997-98 (10th Cir. 2003). SCO can challenge the validity of his assumption that all
of the SCOsource revenues are SVRX Royalties, and the court, as the trier of fact, can choose to
accept or reject it. There is enough of a basis in the agreements for finding that any incidental
license of SVRX creates an SVRX License generating SVRX Royalties for Musika's testimony
and assumptions to meet the underlying reliability standards for expert testimony. SCO does not
cite to anything in the courts' prior orders that would preclude a finding that all revenue under
the Sun and Microsoft Agreements should be considered SVRX Royalties. And while SCO may
have a differing interpretation of the contracts, its interpretation does not make Musika's
assumptions unreliable.
7
Finally, SCO argues that Musika has not adequately applied any principles or methods to
the facts of the case because he conducts no analysis or evaluation of what portion of the revenue
from the agreements are attributable to SVRX. Again, many of these arguments can be made on
cross-examination at trial. SCO's argument also fails to recognize that Novell may establish its
apportionment analysis through other means. If other evidence supports such an apportionment
and Musika is simply asked to provide the calculations resulting from such apportionment, there
are no grounds for attacking Musika for failing to conduct the apportionment analysis.
SCO also argues that Musika should not be permitted to offer any testimony on allocation
of the SCOsource agreements because he has never offered any such opinion in discovery or his
expert report. Although SCO dismisses Novell's concerns about SCO's presentation of a new
apportionment model at trial, the court does not find such concerns unfounded. The court's
August 10 Order necessarily required the parties to reevaluate their positions regarding
apportionment and neither party is more prejudiced than the other with respect to proceeding to
trial. In addition, Novell's opposition states that Musika will testify on apportionment only in
rebuttal. Expert reports under Rule 26(a) are to set forth the substance of direct examination.
Therefore, the presentation of rebuttal testimony on apportionment does not run afoul of Rule
26's expert report requirements.
The court concludes that Novell has met its initial burden with respect to the admissibility
of Musika's testimony. Accordingly, the court denies SCO's Motion to Exclude Testimony of
Terry L. Musika.
8
CONCLUSION
For the reasons stated above, SCO's Motion to Strike Exhibits on Novell's Revised
Exhibit List Not Previously Disclosed is denied. However, the 138 documents Novell has agreed
to use only if SCO advances new theories of apportionment may only be used in those
circumstances. SCO's Sealed Motion to Exclude Testimony of Terry L. Musika is denied.
DATED this 11th day of September, 2007.
BY THE COURT:
____[signature]
DALE A. KIMBALL
United States District Judge
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| Authored by: Anonymous on Tuesday, September 11 2007 @ 07:12 PM EDT |
Cleanup and showing where he stands on as many of these motions as he can get
to.
The man is a legal engineer.[ Reply to This | # ]
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| Authored by: SpaceLifeForm on Tuesday, September 11 2007 @ 07:13 PM EDT |
Please make any links clickable.
---
You are being MICROattacked, from various angles, in a SOFT manner.[ Reply to This | # ]
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| Authored by: SpaceLifeForm on Tuesday, September 11 2007 @ 07:22 PM EDT |
---
You are being MICROattacked, from various angles, in a SOFT manner.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, September 11 2007 @ 07:37 PM EDT |
He's going to hold Novell to what they said, that they won't use a bunch of the
exhibits unless SCO changes their apportionment theory.
Well, that's fair. If Novell says that they won't use the items unless SCO
changes their theory, Kimball should be able to count on that.
And it's no restriction at all, because it's a dead certainty that SCO is going
to change their theory. Partly because that seems to be what SCO always does,
but more so in this case because the previous theory (100% to SCO) is a total
non-starter after Kimball's decision on the PSJs.
MSS2[ Reply to This | # ]
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| Authored by: atheist on Tuesday, September 11 2007 @ 07:48 PM EDT |
| [ Reply to This | # ]
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| Authored by: ChrisP on Tuesday, September 11 2007 @ 07:57 PM EDT |
"Although SCO dismisses Novell's concerns about SCO's presentation of a new
apportionment model at trial, the court does not find such concerns
unfounded."
The Judge has his eyes open...
"The court's August 10 Order necessarily required the parties to reevaluate
their positions regarding apportionment and neither party is more prejudiced
than the other with respect to proceeding to trial."
... and knows he messed up trial preparations for both parties.
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SCO^WM$^WIBM^W, oh bother, no-one paid me to say this.[ Reply to This | # ]
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| Authored by: rsteinmetz70112 on Tuesday, September 11 2007 @ 08:16 PM EDT |
I wonder if this portends a short abrupt trial.
I wonder if the Judge has to sit thorough all of the mush SCO will likely throw
at him. Or if he can tell them repeatedly to get to the point.
---
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 | # ]
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| Authored by: Anonymous on Tuesday, September 11 2007 @ 08:26 PM EDT |
The money quote:
"While relying on the complexity of the case as a
basis for its prejudice with respect to timing, SCO does not recognize the
limited factual questions left for trial."
[ Reply to This | # ]
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| Authored by: mcinsand on Tuesday, September 11 2007 @ 08:40 PM EDT |
>>THE SCO GROUP, INC.,
>>Plaintiff,
>>vs.
>>NOVELL, INC.,
>>Defendant.
I'd really like to see the words 'Plaintiff' and 'Defendant' (rightfully) switch
places.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, September 11 2007 @ 09:09 PM EDT |
| ... stock rises. As usual. [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, September 11 2007 @ 09:36 PM EDT |
"There is enough of a basis in the agreements for finding that any
incidental license of SVRX creates an SVRX License generating SVRX Royalties
[for Musika's testimony...]"
and
"SCO does not cite to anything in the courts' prior orders that would
preclude a finding that all revenue under the Sun and Microsoft Agreements
should be considered SVRX Royalties."
The Fat Lady is well into her warmups now. Buh-bye, liars[ Reply to This | # ]
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| Authored by: cmc on Tuesday, September 11 2007 @ 09:39 PM EDT |
I like this:
"In this case, the exhibits are merely being designated as
exhibits. They were already exchanged during discovery. In fact, many are
SCO's own documents."
It reminds me of last week's page in my
Dilbert calendar, where the boss says Alice must have forgotten to tell him
something, proceeded by him saying:
- You know i don't have time to read my
e-mail.
- You know I don't have time for voice-mails.
- As if I have
time to read my torso.
That's SCO's logic. "Well, yes, they are
our documents, but come on... As if we have time to read our own documents."
Followed by "But your Honor, we don't have time to read any new documents, not
even our own. We're still trying to read through all of that AIX code we begged
for in the IBM case!"[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, September 11 2007 @ 10:49 PM EDT |
| "such documents could have been used in any event for impeachment
purposes"
Does anyone still doubt that Judge Kimball has got SCO's number? [ Reply to This | # ]
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- The Zinger! - Authored by: Anonymous on Tuesday, September 11 2007 @ 11:14 PM EDT
- The Zinger! - Authored by: Anonymous on Tuesday, September 11 2007 @ 11:23 PM EDT
- The Zinger! - Authored by: PJ on Tuesday, September 11 2007 @ 11:27 PM EDT
- The Zinger! - Authored by: Anonymous on Wednesday, September 12 2007 @ 11:07 PM EDT
- The Zinger! - Authored by: blaisepascal on Wednesday, September 12 2007 @ 12:04 AM EDT
- The Zinger! - Authored by: Anonymous on Wednesday, September 12 2007 @ 07:39 AM EDT
- Nope - Authored by: Anonymous on Wednesday, September 12 2007 @ 07:58 AM EDT
- Language - Authored by: Anonymous on Wednesday, September 12 2007 @ 12:00 PM EDT
- Thank you Mr. ThoughtPolice - Authored by: Anonymous on Wednesday, September 12 2007 @ 03:18 PM EDT
- whither - Authored by: grouch on Wednesday, September 12 2007 @ 09:04 PM EDT
- whither - Authored by: Anonymous on Wednesday, September 12 2007 @ 11:55 PM EDT
- The Zinger! - Authored by: Anonymous on Wednesday, September 12 2007 @ 01:43 PM EDT
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| Authored by: bigbert on Tuesday, September 11 2007 @ 10:50 PM EDT |
Don't bet on it, Judge. tSCOg's level of comprehension throughout this case has
been, shall we say, sadly quite low.
---
--------------------------
Surfo, ergo sum.[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, September 12 2007 @ 12:27 AM EDT |
Do you have any names? Know of any open source equivalents? It sounds like it
could be useful for more than just court cases.....[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, September 12 2007 @ 12:50 AM EDT |
"It's about giving the jury the full picture."
I thought the jury trial was denied?[ Reply to This | # ]
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| Authored by: Ian Al on Wednesday, September 12 2007 @ 04:44 AM EDT |
I know it is heavy, but SCOG have seen and felt a cluestick lots of times
before. SCOG have plenty of time to prepare Darl for a court appearance with
shin-guards and other padding, but Novell must still have the opportunity to
beat him into a whimpering, tearful heap in the middle of the courtroom if he
says something stupid. Not that I'm saying he will, but be aware, I have seen
the text of all his interviews and what he signed off for the SEC.
---
Regards
Ian Al
Linux: Genuine Advantage[ Reply to This | # ]
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| Authored by: elderlycynic on Wednesday, September 12 2007 @ 04:46 AM EDT |
Well, my prediction was wrong in form, though I assert that the
following comes very close to granting some part of the first
motion:
The court will hold Novell to its assertion, however, that 138
of the documents will not be used unless SCO introduces
a new theory of apportionment.
Of, course, Kimball being Kimball, there is one edge of that
sword facing Novell and one facing SCO. "Look, you pests, if
you introduce yet another red herring, I will allow Novell to
hit you with these 138 documents - with no more warning."
But, as I read it, if SCO does not do that, Novell will be
precluded from introducing any of those 138 documents.
[ Reply to This | # ]
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| Authored by: DaveJakeman on Wednesday, September 12 2007 @ 05:27 AM EDT |
While relying on the complexity of the case as a basis for its
prejudice with respect to timing, SCO does not recognize the limited factual
questions left for trial.
Of course. SCO still thinks its about
proving they own the copyrights. How long does it take to prepare for trial
when they have nothing left on the table?
Many other documents are
documents with which SCO is familiar.
:
Moreover, many of the documents
on the list are documents with which SCO is familiar.
This judge
is learning. He knows now he must say the same thing at least twice
before SCO will start to comprehend. He's increasing judicial economy by
incorporating the required litany in the same Order.
SCO does not
cite to anything in the courts' prior orders that would preclude a finding that
all revenue under the Sun and Microsoft Agreements should be considered SVRX
Royalties.
A hint?
Although SCO dismisses Novell's
concerns about SCO's presentation of a new apportionment model at trial, the
court does not find such concerns unfounded.
SCO is being called
for what they are. Heh.
---
Only two things are infinite: the universe
and human stupidity – and I'm not sure about the former. -- Einstein [ Reply to This | # ]
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| Authored by: webster on Wednesday, September 12 2007 @ 07:40 AM EDT |
.
.
Your reporter was lucky. Despite a full-time assignment as Duty Attorney
in Community Court, and a DWI client in another Courtroom, the waters parted at
10:22 and he took off for the sixth floor of the United States District Court
for the District of Columbia, Courtroom 28, two blocks away for a 10:30
hearing. At 10:31 the room was moderately full but quiet with all seated
wearing dark suits save for one gray suit. The room was twice as high as the
local court's with huge chandeliers and wood panelling. Death sentences could
be pronounced here as well as
corporations and Constitutional Rights crunched. The Judge came out at 10:33
and promptly sat on the high bench with no announcements from the clerk. She
must have been out before this day. She was certainly having a good hair day as
a smooth, flush, blond wave capped her pale white, with stick of red and the
black robe.
To her left at the table by the Jury box sat the United States and several
of the individual States led by Aaron Hogue for the Department of Justice. He
introduced other attorneys representing other groups of states, including the
California Group which may also have included DC, Iowa and Massachusetts. These
were the Plaintiffs. To her right was the Defense table with fewer attorneys,
mostly younger, and
interestingly, mostly in-house MS attorneys.
The Court began with a background and contextual introduction noting the
last hearing on June 26, 2007 and anticipating the next hearing on November 6,
2007. She characterized it as an "interim" hearing. No wonder
everyone was so relaxed. Compare it to the "interim deadline" of SCO
fame. (Does "Interim" mean nothing is going to be decided? Is this
another romp through the judicial wasteland where we "talk about what we
are going to talk about when it really matters" hearing?) She talked
about Section 3(e) and others that were going to expire or be extended. She
talked about Google's problems with Vista, the Joint Status Report, the New
Developments with 3(e) and the next reports due on October 30, 2007 just before
the next hearing. At defense table they lay low.
The case has grown its own bureacratic jargon and bureaus. TC is the
technical committee, an apparently belated idea that has produced some
effectiveness at long last. The plaintiffs had also hired two consulting firms
to test the protocols documented by Defendants. There were audit committees.
MCPP, TC, TDI, State Groups, SP3, DSM, JSR, Section 3 (whatever), .... Imagine
how a criminal defendant feels with all the jargon spouting from lawyers and
judges. Imagine him with an interpreter trying to put it into his language....
In all it sounded like there was a Petraeusian Surge of compliance activity
afoot with nuances as to effectiveness and compliance. They caught the
defendants eliminating some protocols that they had not told the TC about. For
this or other reasons the Defendants had set up their own interior audit
committee to improve their testing and documentation. There had been
misunderstandings regarding the test suites. The TC was testing the
middleware bugs. The Defendant announced they had 13 licensees, five for
source code, 15 licensees for server development, ten of something else.
Progress was afoot. There were changes to Live, IE, XP(P3). The Plaintiff and
the TC were satisfied so far. No turmoil or contention.
Everyone is going along to get along. There seemed to be little meat on this
bone of contention. The tech guys were working diligently. Committees and
jargon seemed to be winning the day. At defense table they lay low.
At the end of this introduction the Court did start discussing concerns if not
problems: the documentation needs testing, XML mark-up needs work, the deletion
of protocols suggests tricks, the TDI's are incomplete, the TC is testing
middleware bugs, what about Longhorn, what about new features in Vista,
communication protocols.. Work needs to be done. Work is going on. The Court
was aware that things are not the way they should be.
Then the Court turned to the Plaintiffs. First up was Mr. Hogue. He was
not asking for anything. He was mulling the problems and progress. He
mentioned the communication protocols and the working together with MS improving
audit capabilities. He mentioned the TDI's, Technical Documentation Issues. He
anticipated how Vista SP1 would fix the "Default Search Mechanism"
problem brought up by Google. Then he promised that the remaining fixes would
be taken up in SP3. [What about SP2? when would that be? Why didn't he ask to
extend the case to beyond these SP's to be sure the SP did indeed fix the
compliance bugs? Why are Monopoly Antitrust transgressions referred to as bugs?
Are they butterflies or killer bees?] He put Longhorn and Section 3(e) in a
sentence. And opined that Middleware testing within MS should be better. He
assured the Court that he did not see any later issues with Vista allaying the
Court's expressed clues.
The second government speaker proved his statement that he did not have
much to add. They were waiting for the results with optimism for the bug fixes.
They expected they would deliver. At the defense table they lay low.
The third government speaker got sexy. He saw three issues 1) the desktop
search issue is unresolved; 2) there has to be an independant auditor due to
four major flaws in the design and execution, and protocols are undisclosed; and
3) he is afraid of Vista after the judgment expires and what it will to to
Middleware. He concludes that the Judgment should be extended.
Government speaker number four continued in this vigilant vein. He is
worried about the timing of Longhorn. The Section 3(e) part of the judgment is
in effect for two years. He says that the third party report, an audit received
just before the JSR [Joint Status Report] is
one thousand pages long, implying that it is unabsorbed for this hearing. He
said the MS is playing games with the protocols. This ended the first phase.
Their was no word said or needed from the opposition. At Defense table they lay
low.
There are some who say the Court has been chewing on more than it can
swallow, like a pilot fish on a whale. The Court then put an end to this
conjecture. She made a very clear Judicial statement of context. The case goes
back to the nineties. The goal of this case is set forth in the decisions of
the Court of Appeals. The goal of this case is not to unfetter the market or
extinquish the monopoly or even make it not a monopoly. The narrow goal of this
case involves interoperability and Middleware. She discussed the the OS and the
browser. She noted a change in that modern systems are web based services.
Enabling the effectiveness of Middleware and removing barriers to entry are
goals. Making sure other programs can run with the MS operating systems is the
focus. One can not understand this case without reference to the decisions of
the Court of Appeals as this account makes glaringly obvious. It is her bible.
It both gives and takes her authority. If any party wants to reach her, they
must do it in terms of the Court of
Appeals decisions. That is why Google and desktop search is on her mind. She
cautions and guides: Don't expect to extend the supervision of the Judgment
without a relevant, identifiable purpose. She paused.
Quick as a flash and twice as loud, Plaintiff's attorney from the great
state of California Group, and home of Silicon Valley was at the podium. He
announced that he would go first and then personalized the discussion with the
Judge! "We agree with what you have just said!" He then made several
other references to "you" instead of "Your Honor" as he
urged the Court to extend the Middleware Judgment. He then.......
As of this writing this reporter does not know how the hearing concluded.
At 11:26 this reporter left the Federal Courtroom and headed back to the DC
Courts with efficient short-cuts and transgressions where he was due at 11:30.
He arrived there at 11:32, where the judge sat in an almost empty courtroom
waiting for him. Fortunately, the judge was
also waiting for a Spanish interpreter. This reporter was most relieved and
grateful. A half hour later, which could have been spent at the above hearing,
the interpreter arrived and the reporter's client entered a plea of guilty. He
had tried to go home at 2 AM without his headlights on after "a couple
beers." Despite a prior arrest, he did
not go to jail. This reporter surmised that his client does not care about MS.
He probably does not have a computer. Between his children and sending too much
money home to El Salvador, he does not have the need or the money for a
computer. He will have even less due to his fine. Jose and MS made out alright
today.
---
webster
© 2007 Monopoly Corporation. ALL rights reserved. Yours included.[ Reply to This | # ]
|
- Thanks, - Authored by: Anonymous on Wednesday, September 12 2007 @ 08:12 AM EDT
- LOL - Authored by: SpaceLifeForm on Wednesday, September 12 2007 @ 08:14 AM EDT
- Thanks Webster! - Authored by: Anonymous on Wednesday, September 12 2007 @ 12:10 PM EDT
- OT: Status Hearing: US v MS, The First Fifty-Five Minutes - Authored by: Anonymous on Wednesday, September 12 2007 @ 12:14 PM EDT
- If this statement is correct from the judge .... - Authored by: Anonymous on Wednesday, September 12 2007 @ 06:12 PM EDT
- Thank you!! n/t - Authored by: Anonymous on Wednesday, September 12 2007 @ 06:14 PM EDT
- Thank you for a wonderful report! - Authored by: chaz_paw on Wednesday, September 12 2007 @ 10:14 PM EDT
- Webster! - Authored by: tyche on Wednesday, September 12 2007 @ 10:55 PM EDT
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| Authored by: JamesK on Wednesday, September 12 2007 @ 08:35 AM EDT |
I suspect it means thing are about to get very "interesting" for Darl
& friends. ;-)
---
Just say NO to Microsoft.
[ Reply to This | # ]
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| Authored by: Griffin3 on Wednesday, September 12 2007 @ 10:06 AM EDT |
While relying on the complexity of the case as a basis for its
prejudice with respect to timing, SCO does not recognize the limited factual
questions left for trial.
I like. [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, September 12 2007 @ 10:55 AM EDT |
| Fortune with a history of being a SCO mouth piece, now
thinks that Judge
Kimball may have given SCO a raw deal in
an article entitled "Did SCO get Linux-mob justice?".
Anybody care to
deconstruct this? [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, September 12 2007 @ 12:35 PM EDT |
Seems like every SCO setback is 'offset' by a well-planted op-ed PR piece in
Forbes, Fortune, cNet and other such status quo establishments. Given the
recent events in this case, expect the sound and fury of indignation and
injustice
from SCO's supporters to rise to a fever pitch...much like a swan
song, but not
so lovely.[ Reply to This | # ]
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| Authored by: sproggit on Wednesday, September 12 2007 @ 12:59 PM EDT |
Seems like things just aren't going SCO's way at the moment.
The August 10th ruling really seems to have been the point at which things start
rolling, and with these latest decision all we're seeing is an increase in both
inertia and momentum.
I'm guessing - and would appreciate if anyone would care to clue me in - that no
sitting Judge would ever turn to counsel for a party in a case before them and
say, "Look, you do realise that if you bring this to trial you're going to
lose, don't you?" and hope to avoid an appeal or other claims of a
mis-trial. So in other words, a Judge is going to have to be pretty circumspect
in terms of giving out clues as to where they see a case going.
What we have here is not exactly subtle. Basically, SCO are losing everything of
substance and getting a few scraps or stays of execution in return. As it
happens a stay of execution seems to be their ultimate goal ["We await our
day in Court" etc etc] so that tactic doesn't seem to be working.
If this were a rational case [no sniggering in the back, please] one would
expect counsel for SCO to be having a very serious conversation with their
client along the lines of, "Mr McBride: we are about to lose this case, and
we are going to lose big. We urge you to settle out of court. We urge you to
meet with Novell and make a deal and walk away. If you fail to make a deal and
this court goes against you, then you can expect shareholder suits and/or SEC or
similar investigation. We suggest you take our advice."
If this were a rational case with a rational client, one would expect them to
listen, take the advice, and give the honorable Judge Kimball an afternoon off
on the 17th.
Since we have neither a rational case nor a rational client, obviously anything
goes.
But a serious question still exists in my mind. For those with experience of
similar scenarios, is this my imagination, or is Judge Kimball trying to send
smoke signals to BSF that they *really* need to settle this case?[ Reply to This | # ]
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| Authored by: webster on Wednesday, September 12 2007 @ 11:40 PM EDT |
Today the Computer & Communications Industry Association released a study
entitled Fair Use in the U.S. Economy. The report was presented on Capitol Hill this
morning by a panel consisting of the authors, Thomas Rogers, and Andrew
Szamosszegi, both of Capital Trade, Inc., Ed Black, President and CEO of CCIA,
and Peter Jaszi, Professor, American University Washington College of
Law
The study substantiates the value of the industries to the US economy
that rely on the "Fair Use" of copyright material. The point is that hampering
free speech and fair use will also hamper the economy. In a candid discussion
that followed a slide presentation the authors explained their figures and Ed
Black explained wkhy they were on the hill. Fair Use has been under attack and
the copyright forces had the jump on the Hill in 1998. With this report the
forces of freedom and fair use can counter those that would expand copyright as
good for business. Indeed Mr. Black explained that many of the CCIA members
relied on both copyright and fair use. The statutory exceptions creating fair
use are extremely valuable and substantial and growing part of our economy. The
CCIA is preparing for the next round of copyright legislating on the Hill. They
do not want to be caught short and they will present these figures and arguments
to Congress. ---
webster
© 2007 Monopoly Corporation. ALL rights reserved. Yours included. [ Reply to This | # ]
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