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SCO Objects to IBM's Exhibits and the Hearing on the 27th Re-Set for 9:30 AM - Updated: Hearsay within Hearsay
Friday, July 24 2009 @ 06:37 PM EDT

SCO objects to IBM's Proffered Exhibits, some emails, and asks that they be excluded from the hearing. And there is a revised agenda for the 27th, but the only difference is a change in time to start the hearing. It is now set for 9:30 AM.

The five emails are variously between Eric le Blan, Hans Beyer [using the spelling SCO used, but I think it's a misspelling for Bayer], Jim Kelly, Steve Norris, Raif Awaida (with an attachment), and one chain between "various senders and recipients". The grounds for the objection are things like hearsay, hearsay within hearsay, and relevancy. Here's a article that explains what that means. Here's one relevant point: "An e-mail that is an admission by a party-opponent is 'not hearsay'."

The 'hearsay within hearsay objection is understandable from this paragraph:

Most e-mail systems, for instance, allow a person forwarding an e-mail to edit the message being forwarded. Such alteration wouldn't be discernible to the recipient. E-mails are also more prone to a kind of hearsay-within-hearsay problem: an "e-mailchain" attaches to an e-mail every e-mail that came before it in a discussion. It isn't enough to get the most recent e-mail into evidence when that e-mail attaches a string of previous e-mails. All of the prior e-mails may need to be separately authenticated and found admissible.
However, IBM can just call these folks, whichever ones it wants, to authenticate the email it needs to make its point. You have the guy on the stand, and you show the exhibit to the guy and ask, Is this your email? But the point is, SCO is making them do that. Often such things are resolved, as the article points out, in a stipulation. With SCO, they make you take the time, effort and money to prove your momma is your momma.

If you recall, IBM has also objected to SCO's customer letters on similar hearsay grounds. There, though, it makes more sense, because you have things like a letter from an employee of a contractor saying the Army will go into a swoon without OpenServer, and then he says he isn't speaking for the Army or for the contractor.

Here's an older article on Groklaw, with an overview of the Federal Rules of Evidence, including relevancy and hearsay.

All the filings:

07/23/2009 - 863 - Certificate of Service re: Debtors' Response to Objections and Oppositions of Novell and International Business Machines Corporation to the Debtor's Motion for Authority to Sell Property Outside the Ordinary Course of Business Free and Clear of Interests and for Approval of Assumption and Assignment of Executory Contracts and Unexpired Leases in Conjunction with Sale (related document(s) 860 ) Filed by The SCO Group, Inc.. (Makowski, Kathleen) (Entered: 07/23/2009)

07/24/2009 - 864 - Certificate of No Objection (No Order Required) Regarding Twenty-First Interim Application of Berger Singerman, P.A. for Compensation for Services and Reimbursement of Expenses, As Co-Counsel to the Debtors in Possession for the Period from May 1, 2009 Through May 31, 2009 (related document(s) 820 ) Filed by The SCO Group, Inc.. (Attachments: # 1 Certificate of Service and Service List) (O'Neill, James) (Entered: 07/24/2009)

07/24/2009 - 865 - Certificate of No Objection (No Order Required) Regarding Nineteenth Interim Application of Tanner LC for Compensation for Services and Reimbursement of Expenses, As Accountants to the Debtors for the Period from June 1, 2009 Through June 30, 2009 (related document(s) 823 ) Filed by The SCO Group, Inc.. (Attachments: # 1 Certificate of Service and Service List) (O'Neill, James) (Entered: 07/24/2009)

07/24/2009 - 866 - Affidavit/Declaration of Service of Kimberly A. Beck Regarding Opposition to the Debtors' Motion for Authority to Sell (related document(s) 851 ) Filed by Novell, Inc.. (Greecher, Sean) (Entered: 07/24/2009)

07/24/2009 - 867 - Amended Notice of Agenda of Matters Scheduled for Hearing (related document(s) 862 ) Filed by The SCO Group, Inc.. Hearing scheduled for 7/27/2009 at 09:30 AM at US Bankruptcy Court, 824 Market St., 6th Fl., Courtroom #3, Wilmington, Delaware. (Attachments: # 1 Certificate of Service and Service List) (Makowski, Kathleen) (Entered: 07/24/2009)

07/24/2009 - 868 - Objection to International Business Machines Corporation's Proferred Hearing Exhibits and Motion to Exclude Such Exhibits (related document(s) 856 ) Filed by The SCO Group, Inc. (Makowski, Kathleen) (Entered: 07/24/2009)

07/24/2009 - 869 - Certificate of Service Regarding Debtors' Objection to International Business Machines Corporation's Proferred Hearing Exhibits and Motion to Exclude Such Exhibits (related document(s) 868 ) Filed by The SCO Group, Inc.. (Makowski, Kathleen) (Entered: 07/24/2009)

We'll find out at the hearing if the exhibits are allowed. I hope some of you can attend.


SCO Objects to IBM's Exhibits and the Hearing on the 27th Re-Set for 9:30 AM - Updated: Hearsay within Hearsay | 188 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Authored by: Kilz on Friday, July 24 2009 @ 06:50 PM EDT
Please make links the clicky kind.

[ Reply to This | # ]

Authored by: Kilz on Friday, July 24 2009 @ 06:51 PM EDT
For any mistakes that may be found.

[ Reply to This | # ]

short and to the point!
Authored by: Anonymous on Friday, July 24 2009 @ 07:14 PM EDT
SCO's list of objections, I mean. No playing to the gallery here.

This objection is almost meaningless, since the judge can't rule on it without
reading the exhibits. Even if SCO succeeds in keeping these emails off the
record on grounds they're not relevant to the upcoming hearing, IBM might
reintroduce them in a later hearing when they are relevant - like a contempt or
perjury or Rule 11 hearing.

I haven't seen the exhibits, of course, but I suspect IBM knows the hearsay
rules (including the many exceptions and exemptions). A lot depends on the
purpose for which evidence is introduced. Faced with something that could be
used impermissibly, SCO's lawyers *must* object.

This is practical lawyering - making IBM fight for every inch, simply by
insisting on the rules. It's rather out of character for SCO, which must be
saving its theatrics for the hearing, when the judge might be distracted by some
more suddenly-changed "facts".

It's not about investors or public opinion any more, it's about financial
survival and staying out of jail for a little while longer.

[ Reply to This | # ]

News Picks
Authored by: peterhenry on Friday, July 24 2009 @ 07:14 PM EDT
Comments on News Picks here please.

--We have met the enemy and he is us......Pogo

[ Reply to This | # ]

I Plan to Attend
Authored by: RFD on Friday, July 24 2009 @ 07:20 PM EDT
Did you get an email from me? I am not sure if my emails are not getting
through, or you are just ignoring me.

Eschew obfuscation assiduously.

[ Reply to This | # ]

Hi guys. It's even wierder here...
Authored by: fudnutz on Saturday, July 25 2009 @ 12:10 AM EDT
...than at the MMORPG-SCO Fantasy site. We get ideas here though. Here's a
shot at what will happen Monday. I heard this at a Carlyle water cooler.

SCO is filing an emergency motion to have the Bankruptcy judge recuse himself.
SCO has him right were they want him. This will really bump the agenda. SCO
has nothing to lose now. The judge is thinking that SCO intends whatever he
does now; he is being tricked. They are filing a pretty blunt motion that
argues in effect that since the judge has been their tool, being snookered so
many times by this Norris-deal thing, he should no longer be on the case.

The theory is that the judge will bend over backwards to remain fair, impartial
and professional. So then when he comes down harshly on them, it will have the
appearance of improper bias. Judges must always avoid the appearance of
impropriety. The judge was also a witness to the Norris-deal thing. Also, he
shouldn't sit and ruminate on these controversial payments since he was the
victim/target. This might take up a lot of the objectors' time and maybe even
cause a continuance. Maybe even the Novell appeal will come in before
everything is resolved.

The judge will bust the seems on his robes trying to maintain decorum. He'd
love to get out but he sure doesn't want to be so visibly mopped one more time.
We can use this at the Fantasy site.

[ Reply to This | # ]

Do SCO's recent filing seem less hysterical?
Authored by: Anonymous on Saturday, July 25 2009 @ 12:53 AM EDT
It seems to me that SCO's recent filings seem less hysterical that before.

Maybe they are taking this seriously?

Maybe they're actually listening to the lawyers?

Maybe it's just me.

[ Reply to This | # ]

Legal explanation for hearsay-within-hearsay
Authored by: Anonymous on Saturday, July 25 2009 @ 01:39 AM EDT
Here is a useful link:

[ Reply to This | # ]

A prediction, based on lack of trolling
Authored by: tiger99 on Saturday, July 25 2009 @ 02:18 PM EDT
In the past, there has always been an outbreak of trolling and astroturfing before every setback for SCO in court.

This time their seems to be negligible trolling, so the "logical" conclusion is that SCO will, in some strange way, win this time.

That can't be right, I think, so I would guess that all they would win is another week or two of delay. How they will persuade Judge Gross to give them that, I can't imagine.

Another explanation, of course, is that the rats have already deserted the sinking ship.

The third explanation is that certain SCO officers were doing the trolling, and right now they are far too busy preparing for the hammering they will get in court, or have already fled the country.

Of course the real conclusion is that the behaviour of trolls is not governed by any known form of logic. Nor are the actions of SCO, and therefore the absolutely definitive prediction is that the outcome in court can not be predicted in any meaningful way....

[ Reply to This | # ]

Now that I'm awake...
Authored by: Lazarus on Saturday, July 25 2009 @ 02:42 PM EDT
I'm reading that as "SCO wants the exhibits/etc excluded"; earlier, I
was reading it as they want IBM excluded.

Ok, they probably -do- want IBM excluded, but there's no legal basis for that.

Any incoherancies on my part should be blamed on my use of Vicodin.
Unfortunately, it's for my back, so I'm not quite a House clone.

[ Reply to This | # ]

"[SCOG wants to] make you take the time, effort and money to prove your momma is your momma"
Authored by: Anonymous on Saturday, July 25 2009 @ 07:17 PM EDT

Meanwhile, they feel they should not be required to have to prove everyone else's Momma is their daughter so technically, you're their child as well!

Everyone else must prove every possible tiny point with specificity, but SCOG should not have to be required to provide specificity.

Ya know, I just realised that's not really any different from the common thief:

    It's all right for me to steal from you but you better not steal from me!


[ Reply to This | # ]

An Examination of the Hearing of June 17, 2008 under a New Light
Authored by: webster on Sunday, July 26 2009 @ 02:16 AM EDT

The Hearing of June 17, 2008

To put the hearing in perspective one has to read this article. PJ has created a fabulous record which shall remain a standard of legal learning in the internet age for years to come. It is fabulous in what it includes and makes available, and it is fabulous as a teaching tool in many areas of the law. It is fabulous in her commentary as learned, clear, witty and fun.

Unfortunately, the judge has not been following along these many years so he has no clue how to guage SCO. Look what PJ picked out among other things in her article:

But I'm not the judge. I always wish to show respect to the position. But I hope he thinks about some of the things he heard that day. One thing in particular that Novell's Mr. Lewis brought out about the Norris deal I couldn't help noticing:
The problem with the plan was not that it didn't cover the alternatives, the problem with the plan was something that I disagree with counsel about, whether SNCP was real. The Court will remember our concerns about the disclosure statement. Who are these newly formed people? What's the deal? How reliable is the financing commitment from them? What is the source of money? There are a lot of issues like that. That's why it got withdrawn ... [P. 14.]
Those of us that know ol' SCO know that you should be suspicious when there is no information, no documents, no specificity. As it turns out Lewis and PJ were right on the money about this SCO void --Norris agent money. This wasn't discovered then because SCO had never signed a deal. No deal, nothing to discover. Once they signed a deal, IBM pounced, and look what they learned --there was a deal all along, an agent deal with Norris. They denied a deal when they had one. They are using Norris to extend the bankruptcy and exclusivity. When they felt they had to proclaim a deal --to try and get out of bankruptcy, the real deal surfaces. They bought months wth this ruse.

Remember on the date of this hearing there was no deal and Norris' well-paid agency role was unknown. Listen to Spector in his opening remarks:

You only know the deals that come before the Court.

THE COURT: Exactly.

MR. SPECTOR: You don't know what deals have been turned down and what deals we're trying still - or not still, but we have tried to make come to fruition. What we have today, however, is we have a hundred million dollar deal from someone of the caliber of Steve Norris and his friends that's still viable, still talked about, not before you yet, not out for a vote yet,...

P. 7 (Emphasis supplied). This is a funny way of saying, "Our man Steve Norris can't make a deal." Gross is grooving on it. Note he added a baptist chime. One surmises now that ironically Spector stumbled on a truth, that Norris' friend, McBride, must be of that caliber.

Spector really pumps these "almost" deals. He must have been deceived, too. He really believes that money-man Norris is hot to trot with SCO despite their woeful litigative posture. Here he makes another grossly misleading statement: "Well, one of the reasons why we stymied on the deals with Norris is because the world changed when the number went roughly half." P. 26. He clearly means a deal "with Norris" as investor, not employee. It is misleading in that Norris, their agent, wasn't going to invest in them personally. It also implies many posible deals with more than one investor.

Another ignorant participant to this hearing was Mr. Lewis arguing against SCO continued exclusivity in making plans. Ignorant though he was, he was suspicious. Imagine how much the truth would have bolstered this argument:

The problem with the plan was not that it didn't cover the alternatives, the problem with the plan was something that I disagree with counsel about, whether SNCP was real.
Too bad for you, Mr. Lewis. You didn't know that "SN" was a real agent for SCO. He could really have made hay with that. Despite Mr. Lewis suspicions he must argue on a grand scale commensurate with McBride's pernicious ploy:
And so, we know - we've heard that the deal with Stephen Norris Partners is still there. We're still talking about presumably a hundred million dollars. That's more than enough to cover whatever there might be here in terms of damages, as the debtor said, in its prior plan,...
p. 28. It goes on and on. In closing Lewis continues his unwitting misapprehension:
and I think if the debtor and whoever it's negotiating with, if it's Stephen Norris - and I want to emphasize the deal was - the change with Stephen Norris didn't happen when Novell reduced its damage claim to $19 or $20 million.
P. 28. And to think throughout this hearing Mr. McBride was content to sit through all this talk of SCO negotiating with Stephen Norris investor when the reality was that it was SCO and its agent, Stephen Norris negotiating with whatever other investors, if any. As has been pointed out, if the only negotiations they are referring to are with Stephen Norris, then there haven't been any negotiations at all, just machinations. If Mr. McBride had any qualms at all, he would have given an elbow and a clue to his lawyer.

Mr. McMahon, the trustee, tries on his part to get the judge to set a time limit on SCO. He certainly isn't suspicious of Norris;

I just think it's, you know, we've been up to the plate two times in this case already. We've been told about the fact that Stephen Norris is, you know, still out there. We have his proposed asset sale.
No, sadly, Mr. McMahon, he is not "out there." He is firmly entrenched in the SCO camp. He is helping them feign dealish activity and amuse the court. When the time comes he can make sort of deal, if you don't know that it is SCO dealing with itself. [One could write a load about Spector's pious objection to McMahon's remarks but substance beckons. p. 23.]

Look how thoroughly the court has been taken in by McBride's ploy. With his agent Norris helping him work both sides of the table, they can tease the court with the uncertainties of litigation and negotiating. They create their own realites and report them to the court. Almost this and almost that:

THE COURT: - because as I understand the situation, and the situation is that the litigation has a major impact upon the negotiations with potential buyers, and those negotiations then have a direct and significant impact upon the plan that you'll file,...
P. 24. Do you suspect that the judge believes that Stephen Norris is one of those potential buyers? How could he not? What else has he heard? SCO drags up "Steve," SNCP, and his investors at every opportunity. The judge granted SCO's motion to continue exclusivity at the end of the hearing. He felt it was difficult to make a deal until more litigation was resolved.

The fact of the matter is that SCO has nothing to sell. Another fact is that no one is interested. McBride had to buy Norris' lucrative, feigned interest. SCO is in a woeful stage in its lawsuits. It is radioactive now, if it wasn't before Norris, the secret agent, was outed. It has pervaded the bankruptcy. The ploy worked almost too well, thanks to the judge. With a modest Novell verdict, they no longer need the ploy; they no longer need the bankruptcy. But as someone's pappy used to say, "Your can't undo a lie." Since the parties all couldn't trust each other to lie, the truth and the lie came out in this "deal" where SCO appears to be trying to buy itself. Monday should be spectacular. There will be currents beneath the waves. The hearing won't be complete if one of the opposing lawyers doesn't point his finger at McBride at debtor's table. He is brazen enough to show up.

It's late. What a weird hobby!


[ Reply to This | # ]

McBride, Bonus, Avoding traces
Authored by: Anonymous on Sunday, July 26 2009 @ 04:08 AM EDT
One may wonder whether the large Bonus McBride and others have allocated to
themselves has two purposes: first, for enriching themselves. But second, they
can make use of this mechanism to establish a covert channel through which they
can pay money that won't appear on the Ch7/11 official bills. So they can still
move some amount of company money without any control by the judge. Or am I on
the wrong track here?

[ Reply to This | # ]

predictions for the hearing thread
Authored by: Anonymous on Sunday, July 26 2009 @ 09:33 PM EDT
Please post here your predictions for what will happen in the hearing. I am
especially interesting in what you think SCO will do to try to rescue itself and
stay out of Chapter 7.

My prediction: SCO will claim that it signed a deal, but it was after the
judge's deadline for submitting instruments to the other side, so it
unfortunately has nothing that can be examined by the court.

[ Reply to This | # ]

Swine flu.
Authored by: rfrazier on Monday, July 27 2009 @ 02:40 AM EDT
I half expect the entire SCO legal team to come down with it, with orders from
their physicians that they be kept in quarantine until 31 August.

Best wishes,

[ Reply to This | # ]

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