decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


Contact PJ

Click here to email PJ. You won't find me on Facebook Donate Paypal


User Functions

Username:

Password:

Don't have an account yet? Sign up as a New User

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
A Blizzard of Motions in Limine in SCO v. Novell - Updated: SCO's as text, Hearing Feb. 25 @9AM & Dr. Pisano's Deposition
Tuesday, February 09 2010 @ 12:56 AM EST

Motions in limine are flying in Utah like snowflakes in a winter storm, filed by both parties in SCO v. Novell. But there are a lot more from Novell than from SCO.

Novell has filed 19 more motions in limine, all filed on February 8, for a total of 20, as well as motions for a Daubert hearing to disqualify Dr. Christine A. Botosan, Dr. Gary Pisano, and G. Gervaise Davis III, three of SCO's experts. The Novell motions in limine are mainly to exclude testimony from certain witnesses of SCO's "for lack of personal knowledge," among other reasons. Like Ed Chatlos. Remember when Judge Dale Kimball was on the case, and Novell filed motions to disqualify that same testimony? Well, now they are raising it again.

SCO has filed 5 motions in limine, but they are not described in the docket, and I haven't read them yet. We can read them together. But I see one of them is titled a motion asking that certain statements of Michael Anderer "as an independent contractor" be excluded. You remember Darl McBride's once longtime friend and business associate, Mr. Anderer, the man who said that proprietary software companies would keep suing Linux until they killed it? And they don't want the jury to hear about what Judge Kimball earlier ruled about who owned the copyrights, I gather. Well, would you, if you were SCO? And they want witnesses to be told they can't mention Groklaw. Say, what? Why would anyone ever mention Groklaw in the trial? I can't imagine any circumstance where that would happen. Anyway, jurors are told not to do outside research, so even if it happened, jurors couldn't visit Groklaw, not that they wouldn't find it enlightening, until the trial was all over.

In other words, as is normal in filing motions in limine, both parties are asking the judge to decide what the trial is going to be about, in essence, by determining before anything goes before a jury what evidence will be allowed to be presented. Of course, Novell has already filed a motion in limine pointing out that one of Judge Ted Stewart's earlier orders seems to provide the metes and bounds of the trial. If he grants that first Novell motion in limine, I think this list will get pruned. Should he not grant that motion, however, he faces all of them.

I thought you'd want to see the list without waiting for us to obtain all of the exhibits, which are very numerous, and so will take a while. Here's the docket with what we have so far, and you can stop back by to see the list completely filled in:

629 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No. 2 to Determine that First Amendment Defenses Apply to Slander of Title filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit 2A, # (2) Exhibit 2B, # (3) Exhibit 2C)(Brennan, Sterling)

630 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No. 3 to Determine that SCO is a Limited Purpose Public Figure filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit 3A [PJ: This is a copy of SCO v. IBM Docket #398, which we already have here.] , # (2) Exhibit 3B, # (3) Exhibit 3C, # (4) Exhibit 3D, # (5) Exhibit 3E [PJ: This is a copy of SCO's Letter to Linux Users, which we already have here.] , # (6) Exhibit 3F-Under Seal, # (7) Exhibit 3G, # (8) Exhibit 3H, # (9) Exhibit 3I, # (10) Exhibit 3J, # (11) Exhibit 3K, # (12) Exhibit 3L, # (13) Exhibit 3M, # (14) Exhibit 3N, # (15) Exhibit 3O, # (16) Exhibit 3P-Under Seal, # (17) Exhibit 3Q, # (18) Exhibit 3R, # (19) Exhibit 3S) [PJ: 3R and 3S are under seal.](Brennan, Sterling)

631 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No. 4 to Preclude SCO from Contesting that Novell had an Objectively Reasonable, Good Faith Basis for its Statements Regarding Copyright Ownership filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit 4A)(Brennan, Sterling)

632 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No. 5 to Preclude SCO from Relying on Novell's June and August 2003 Statements as Factual Assertions of Copyright Ownership filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit 5A, # (2) Exhibit 5B, # (3) Exhibit 5C, # (4) Exhibit 5D)(Brennan, Sterling)

633 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No. 7 to Determine that Common Law Privileges Apply to Allegedly Defamatory Publications filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit 7A, # (2) Exhibit 7B, # (3) Exhibit 7C, # (4) Exhibit 7D, # (5) Exhibit 7E, # (6) Exhibit 7F)(Brennan, Sterling)

634 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No. 8 to Preclude SCO from Relying on Novell's Applications for Copyright Registration filed by Defendant Novell, Inc.. (Brennan, Sterling)

635 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No. 10 to Preclude SCO from Presenting Argument Relating to Issues Stayed Pending Arbitration filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit 10A, [PJ: This is a copy of Docket #139, which we already have here.] # (2) Exhibit 10B)[PJ: This is a copy of Docket #379, which we also have here.] (Brennan, Sterling)

636 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No. 11 to Exclude Evidence of Substantial Performance filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit 11A)(Brennan, Sterling)

637 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No. 12 to Exclude Certain Testimony from William Broderick for Lack of Personal Knowledge and Violation of Parol Evidence Rule filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit 12A)(Brennan, Sterling)

638 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No. 13 to Exclude Certain Testimony From Lawrence Bouffard for Lack of Personal Knowledge and Violation of Parol Evidence Rule filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit 13A-Under Seal)(Brennan, Sterling)

639 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No.14 to Exclude Certain Testimony from Jean Acheson for Lack of Personal Knowledge and Violation of Parol Evidence Rule filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit 14A)(Brennan, Sterling)

640 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No. 15 to Exclude Certain Testimony from Robert Frankenberg for Lack of Personal Knowledge and Violation of Parol Evidence Rule filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit 15A)(Brennan, Sterling)

641 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No. 16 to Exclude Certain Testimony from R. Duff Thompson for Lack of Personal Knowledge and Violation of Parol Evidence Rule filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit 16A, # (2) Exhibit 16B, # (3) Exhibit 16C)(Brennan, Sterling)

642 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No. 17 to Exclude Certain Testimony from Ty Mattingly for Lack of Personal Knowledge and Violation of Parol Evidence Rule filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit 17A)(Brennan, Sterling)

643 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No. 1 filed by Plaintiff SCO Group. (Normand, Edward)

644 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No. 18 to Exclude Certain Testimony from Douglas Michels for Lack of Personal Knowledge and Violation of Parol Evidence Rule filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit 18A)(Brennan, Sterling)

645 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No. 2 filed by Plaintiff SCO Group. (Normand, Edward)

646 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No. 3 filed by Plaintiff SCO Group. (Normand, Edward)

647 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No. 4 filed by Plaintiff SCO Group. (Normand, Edward)

648 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No.19 to Exclude Certain Testimony from Edward Chatlos, Burt Levine, and Kim Madsen for Lack of Personal Knowledge filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit 19A-Under Seal, # (2) Exhibit 19B-Under Seal, # (3) Exhibit 19C [PJ: Note update, below, that this was mistakenly filed, as it's different excerpts from the Burt Levine deposition; it has been replaced with this 19C, assuming the court agrees], # (4) Exhibit 19D)(Brennan, Sterling)

649 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No. 5 filed by Plaintiff SCO Group. (Attachments: # (1) Exhibit 1, # (2) Exhibit 2, # (3) Exhibit 3, # (4) Exhibit 4)(Normand, Edward)

650 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No. 9 to Preclude SCO from Contesting that Agreements that Post-Date the APA May Constitute SVRX Licenses filed by Defendant Novell, Inc.. (Brennan, Sterling)

651 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No. 6 to Preclude Reliance on Statements in December 2003 and March 2004 that do not Constitute Factual Assertions of Copyright Ownership filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit 6A, # (2) Exhibit 6B, # (3) Exhibit 6C)(Brennan, Sterling)

652 - Filed & Entered: 02/08/2010
Notice of Conventional Filing
Docket Text: NOTICE OF CONVENTIONAL FILING of Exhibits 3F, 3P, 3R, and 3S to filed by Defendant Novell, Inc. re [630] MOTION in Limine No. 3 to Determine that SCO is a Limited Purpose Public Figure (Brennan, Sterling)

653 - Filed & Entered: 02/08/2010
Notice of Conventional Filing
Docket Text: NOTICE OF CONVENTIONAL FILING of Exhibit 13A filed by Defendant Novell, Inc. re [638] MOTION in Limine No. 13 to Exclude Certain Testimony From Lawrence Bouffard for Lack of Personal Knowledge and Violation of Parol Evidence Rule (Brennan, Sterling)

654 - Filed & Entered: 02/08/2010
Notice of Conventional Filing
Docket Text: NOTICE OF CONVENTIONAL FILING of Exhibits 19A and 19B filed by Defendant Novell, Inc. re [648] MOTION in Limine No.19 to Exclude Certain Testimony from Edward Chatlos, Burt Levine, and Kim Madsen for Lack of Personal Knowledge (Brennan, Sterling)

655 - Filed & Entered: 02/08/2010
Motion for Daubert Hearing
Docket Text: MOTION for Daubert Hearing to Disqualify Dr. Christine A. Botosan filed by Defendant Novell, Inc.. (Attachments: # (1) Text of Proposed Order)(Brennan, Sterling)

656 - Filed & Entered: 02/08/2010
Memorandum in Support of Motion
Docket Text: MEMORANDUM in Support re [655] MOTION for Daubert Hearing to Disqualify Dr. Christine A. Botosan filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit A, # (2) Exhibit B, # (3) Exhibit C-Part1, # (4) Exhibit C-Part 2, # (5) Exhibit D, # (6) Exhibit E, # (7) Exhibit F, # (8) Exhibit G, # (9) Exhibit H, # (10) Exhibit I)(Brennan, Sterling)

657 - Filed & Entered: 02/08/2010
Motion for Daubert Hearing
Docket Text: MOTION for Daubert Hearing to Disqualify Dr. Gary Pisano filed by Defendant Novell, Inc.. (Attachments: # (1) Text of Proposed Order)(Brennan, Sterling)

658 - Filed & Entered: 02/08/2010
Memorandum in Support of Motion
Docket Text: MEMORANDUM in Support re [657] MOTION for Daubert Hearing to Disqualify Dr. Gary Pisano filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit A, # (2) Exhibit B, # (3) Exhibit C, # (4) Exhibit D)(Brennan, Sterling)

659 - Filed & Entered: 02/08/2010
Motion for Daubert Hearing
Docket Text: MOTION for Daubert Hearing to Disqualify G. Gervaise Davis III filed by Defendant Novell, Inc.. (Attachments: # (1) Text of Proposed Order)(Brennan, Sterling)

660 - Filed & Entered: 02/08/2010
Memorandum in Support of Motion
Docket Text: MEMORANDUM in Support re [659] MOTION for Daubert Hearing to Disqualify G. Gervaise Davis III filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit A)(Brennan, Sterling)

661 - Filed & Entered: 02/08/2010
Objections
Docket Text: OBJECTIONS to [625] Exhibit List(Proposed) Second Amended Supplemental Rule 26(a)(3) Pretrial Disclosures filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit A)(Brennan, Sterling)

I think this is very likely the testimony that SCO would like Mike Anderer not to provide, taken from Novell's trial brief [PDF] in 2007 prior to the first SCO v. Novell trial:
In late 2002, SCO approached Novell and asked Novell to be part of a campaign to extract licenses from the Linux community based on supposed infringement of the SVRX copyrights. Novell refused to cooperate in the scheme. In early 2003, just before SCOsource was formally launched, SCO's intellectual property consultant Michael Anderer reviewed the APA and warned Darl McBride, "We really need to be clear on what we can license. It may be a lot less than we think." (Order at 28, citing NOV-EX-166.) As a consequence, Mr. Anderer counseled further negotiations with Novell, in the hopes that SCO could convince Novell that revenue sharing from SCOsource would be a "win-win" proposition with "upside" for Novell. (NOV-EX-167.) In January 2003, SCO nevertheless launched SCOsource without Novell's consent.
I think that's it because in the SCO motion in limine seeking to exclude his statements, it mentions the APA, characterizing his opinion as just a layman's unrequested 2 cents.

As for Groklaw's 2 cents, if they tell the witnesses not to mention Groklaw, they will be letting all the witnesses know about Groklaw. No doubt they'll all come and visit after that.

Kidding. The truth is, it would be quite liberating if they did so charge the witnesses, frankly. I would be freer to write about the trial as it happens, if I know for sure no one will be stopping by until it's long over. Here's some proposed guidance on juries and the internet, by the way, if you are curious. And here's an example of what can go wrong if juries do outside research despite being told not to. And more details from BLT:

You, as jurors, must decide this case based solely on the evidence presented here within the four walls of this courtroom. This means that during the trial you must not conduct any independent research about this case, the matters in the case, and the individuals or corporations involved in the case. In other words, you should not consult dictionaries or reference materials, search the internet, websites, blogs, or use any other electronic tools to obtain information about this case or to help you decide the case. Please do not try to find out information from any source outside the confines of this courtroom.

Update: Readers have begun to do some of the motions as text. Thank you. In the interests of time, we are leaving off the header and the signature at the end, and as always, for anything that matters, go by the PDF.

Here's SCO's #1,643 [PDF], asking the court to preclude "misleading statements about the APA":

Plaintiff, The SCO Group, Inc. (“SCO”), moves in limine to preclude misleading statements concerning language in the Asset Purchase Agreement (“APA”) that was changed by Amendment No. 2 to that Agreement.

ARGUMENT

The APA was amended by Amendment No. 2 to replace the language regarding the exclusion of “all copyrights.” The Tenth Circuit’s decision makes clear that the APA is to be interpreted together with Amendment No. 2. The Court expressly stated that “Amendment No. 2 must be considered together with the APA as a unified document.” SCO Group, Inc. v. Novell, Inc., 578 F.3d 1201, 1211 (10th Cir. 2009). Amendment No. 2 was not “meant to substantively change the intent of the APA,” but “merely clarified or affirmed the intent of the APA.” Id. at 1214 n.2. As the Court of Appeals further noted: “Even if we considered the language of the APA and Amendment No. 2 to be mutually antagonistic, California law still dictates that we construe them together, following Amendment No. 2 wherever its language contradicts the APA.” Id.

Novell previously made extensive arguments to the Court referring to the language excluding “all copyrights” that was replaced by Amendment No. 2. That language is no longer in the APA and it would be misleading for Novel to make arguments in the presence of the jury that suggest the APA in fact still contains such language. SCO recognizes that in presenting extrinsic evidence it may be necessary to refer to the language that existed before Amendment No. 2 was adopted. In doing so, however, the parties should be clear that this is not the current state of the contractual language that is to be considered by the jury.

I'm pretty sure there will be quite a battle over that one. SCO is asking to win before it even begins its case, as I read it.

Here's SCO's #2, 645 [PDF], the one about not letting the jurors know about the earlier summary judgment rulings where Judge Kimball found for Novell:

Plaintiff, The SCO Group, Inc. (“SCO”), respectfully moves for an order in limine to preclude the parties and their representatives from referring to or introducing evidence concerning the now-reversed summary judgment rulings regarding copyright ownership and contract waiver rights previously entered in this matter.

ARGUMENT

In an order dated August 10, 2007, this Court (Kimball, J.) granted Novell’s motions for summary judgment on the issues of (i) Novell’s alleged ownership of the UNIX and UnixWare copyrights pursuant to the Asset Purchase Agreement (“APA”), and the amendments thereto, at issue in this litigation, and (ii) Novell’s alleged “waiver” rights pursuant to the APA, under which Novell claims (among other things) the right unilaterally and at its unfettered discretion to direct SCO to waive any and all of its rights pursuant to “SVRX Licenses” as that term is used in the APA. SCO Group, Inc. v. Novell, Inc., Civil No. 2:04CV139DAK, 2007 WL 2327587 (D. Utah. Aug. 10, 2007), rev’d in part, 578 F.3d 1201 (10th Cir. 2009). On August 24, 2009, however, the Tenth Circuit Court of Appeals reversed those rulings. SCO Group, Inc. v. Novell, Inc., 578 F.3d 1201 (10th Cir. 2009).

The Tenth Circuit’s reversal thus makes moot the summary judgment analyses and rulings that Novell owns the disputed copyrights and that Novell had the contractual right to wave SCO’s claims against IBM. There is no relevance for the jury to learn that the District Court previously made such rulings, because they were reversed by the Court of Appeals and could only serve to mislead the jury. 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.” Telum, Inc. v. E.F. Hutton Credit Corp., 859 F.2d 835 (10th Cir. 1988). Those prior rulings and analyses do not have any bearing on or relevance to the issues for the jury to decide.

Accordingly, SCO requests that the Court enter an order in limine preventing the parties and their representatives and witnesses from referencing, or eliciting or offering evidence respecting, those reversed rulings.

Here's the heart of SCO's #3, 646 [PDF] the one about not mentioning that there is a monetary judgment against SCO in favor of Novell:
Plaintiff, The SCO Group, Inc. (“SCO”), respectfully moves for an order in limine to preclude reference to Novell’s monetary judgment against SCO in this case.

ARGUMENT

After this Court’s (Kimball, J.) entry of summary judgment against SCO in August 2007, the parties conducted a bench trial in April and May 2008 concerning Novell’s counterclaims against SCO. Novell, which initially sought approximately $30 million in royalties to which it claimed it was entitled, obtained a judgment for approximately $2.5 million. The Tenth Circuit Court of Appeals subsequently reversed the August 2007 entry of summary judgment and affirmed Novell’s monetary judgment. SCO Group, Inc. v. Novell, Inc., 578 F.3d 1201 (10th Cir. 2009). For the upcoming trial, references to and evidence of Novell’s monetary judgment against SCO is not relevant to any of the issues to be tried, 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.” Telum, Inc. v. E.F. Hutton Credit Corp., 859 F.2d 835 (10th Cir. 1988). No aspect of the monetary judgment that Novell obtained relates to or touches upon the questions the jury will now consider. The judgment does not have any bearing on or relevance to the issues for the jury to decide.

In addition, any probative value in such evidence would be substantially outweighed by the danger of unfair prejudice to SCO. The fact alone that Novell has obtained the judgment may improperly prejudice the jury.

Accordingly, SCO requests that the Court enter an order in limine precluding the parties and their representatives and witnesses from referencing, or eliciting or offering testimony respecting, the monetary judgment Novell previously obtained in this case.

Here's SCO's #4, 647 [PDF], the no-grokking-allowed motion:
Plaintiff, The SCO Group, Inc. (“SCO”), respectfully moves for an order in limine to preclude reference by the parties to the various sources which have been providing publicly available commentary on this and related SCO litigation.

ARGUMENT

There are a number of websites and publications which have followed this litigation and related litigation invoking SCO. Such websites and publications and the commentary to be found there are 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.” Telum, Inc. v. E.F. Hutton Credit Corp., 859 F.2d 835 (10th Cir. 1988).

In addition, given the partisan nature of commentary, any probative value in such evidence would be substantially outweighed by the danger of unfair prejudice to SCO. indeed, the nature of the claims at issue has led to highly polarized commentary. One example is the website Groklaw.com, on which a self-described former paralegal named Pamela Jones has published and continues to publish biased, anti-SCO coverage of all pleadings, hearings, and events relating to SCO’s pursuit of its claims and defenses. There are other similar sites and commentary, and the Court should not allow Novell or its counsel or witnesses 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 motion.)

Accordingly, 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 or offer testimony respecting commentary on this case or related litigation, and not to make any references to such commentary or to the websites or publications devoted to such commentary.

Aren't they special? May I ask you to take a look at Groklaw's and my numerous awards? If any of SCO's smear were true, how did we win them?

Update: I went to look at the similar motion [PDF] SCO brought the first time this case was getting ready to go to trial, and I notice a wording shift. The earlier motion asked that there be no mention "without securing the prior permission of the court". The new one seeks a blanket order, with no wiggle room at all. So, if SCO mentioned other pro-SCO sites, or its own legal documents page, that's OK? But Novell can't mention any non-pro-SCO sites? That seems a little overreaching.

SCO's #5, 649 [PDF], for our enjoyment, the meat of the motion in limine regarding Mike Anderer, SCO's #5:

Plaintiff, The SCO Group, Inc. (“SCO”), respectfully moves for an order in limine excluding statements made by Michael Anderer as an independent contractor for SCO.

ARGUMENT

At trial, Novell may reference or offer statements made by Michael Anderer concerning the un-amended APA when he was an independent contractor for SCO.

In 2003, SCO engaged Mr. Anderer for about a year as an outside consultant under an Independent Contractor Agreement with his firm S2 Strategic Consulting, LLC. (Ex. 1; Ex. 2 at 72; Ex. 3 at 12-13, 86.) That Agreement governed his engagement and fees. (Ex. 1.) His services pursuant to the Agreement were largely limited to acting as liaison with Microsoft Corporation in the early negotiations of the SCOsource agreement with that company. (Ex. 2 at 76; Ex. 3 at 11-12, 86-87.)

There is no evidence that Mr. Anderer acted as SCO’s agent during the brief period of his engagement. (Ex. 3 at 11-12, 86.) On the contrary, all the evidence shows that he acted as an independent contractor, who played a limited role in one transaction. (Ex. 1; Ex. 2 at 72; Ex. 3 at 12-13, 86.) There is no evidence that Mr. Anderer was authorized to act on SCO’s behalf beyond this agreement, had an employment relationship with SCO, or received any salary for his services. Mr. Anderer did not have any authority to bind or speak for SCO even in its negotiations with Microsoft. (Ex. 4 at 125.) Instead, he merely brokered the early negotiations and ceased playing even this limited role when the process advanced to final negotiations, which were handled directly by SCO. (Ex. 2 at 76; Ex. 3 at 15; Ex. 4 at 125.)

Mr. Anderer himself acknowledged at his deposition that he did not have an interest in or fully understand even the terms of the Microsoft contract. (Ex. 3 at 24-25, 62-63, 76-77.) With respect to statements he made unrelated to the Microsoft negotiations, Mr. Anderer made them at his own discretion, to “put his two cents in,” and not at the request or direction of SCO. (Ex. 2 at 76; Ex. 3 at 109-10; Ex. 4 at 125.) Indeed, Mr. Anderer also acknowledged that such statements reflected the legal interpretations of a layman, reflected his own musings based on incomplete information, and were largely disregarded by SCO. (Ex. 3 at 86-87, 91-92.)

“Evidence Rule 801(d)(2)(D) provides that a statement is not hearsay if it is ‘offered against a party and is . . . a statement by the party’s agent . . . concerning a matter within the scope of the agency . . . made during the existence of the relationship.’” Merrick v. Farmers Insurance Group, 892 F.2d 1434, 1440 (9th Cir. 1990). The burden of proving the elements of the rule rests on the proponent of the evidence. Id. Here, Novell cannot meet its burden because there is no evidence even for the threshold agency requirement.

If a proffered statement was made by an independent contractor, as opposed to an agent, the statement falls outside Rule 801(d)(2)(D) and remains inadmissible hearsay. Id. (concluding the district court “properly rejected” evidence because proponent failed to establish that declarants were agents “as opposed to independent contractors”); Coleman v. Wilson, 912 F. Supp. 1282, 1296 (E.D. Cal. 1995) (inadmissibility “turns on whether [declarants] were agents”) (citation omitted); Powers v. Coccia, 861 A.2d 466, 470-01 (R.I. 2004) (excluding statements because declarants “were independent contractors, and their statements do not fall within the parameters of Rule 801(d)(2)(D)”); 5 Weinstein’s Federal Evidence § 801.33[2][b] at 801-65, 67 (2d ed. 2002) (“statements of a party's independent contractors typically do not come within Rule 801(d)(2)(D)”). Here, because Mr. Anderer’s relationship with SCO was governed by an independent contractor agreement and there is no evidence of an agency relationship, his statements should be excluded without more.

Some courts consider certain factors in determining whether an agency relationship in fact existed. These factors include whether the consultant had the authority to bind or speak for the client, whether the client had control over the consultant or directed his work in a meaningful way, whether the conclusions the consultant drew were not at his discretion, and whether the consultant was paid a salary. See Westfed Holdings, Inc. v. United States, 55 Fed. Cl. 544, 564-65 (Fed. Cl. 2003) (statements of consultants were not admissions of client because proponent failed to provide evidence that factors were met); Sabel v. Mead Johnson & Co., 737 F. Supp. 135, 139 (D. Mass. 1990) (statements inadmissible because, among other things, consultant did not have “speaking authority” or posses “the power to act” on client’s behalf). Even considering these factors, Mr. Anderer’s statements fall outside Rule 801(d)(2)(D), because there are no facts suggesting that he acted as an agent for SCO.

In addition, Mr. Anderer’s statements are irrelevant. 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.” Telum, Inc. v. E.F. Hutton Credit Corp., 859 F.2d 835 (10th Cir. 1988). There is no evidence that Mr. Anderer has any personal knowledge of the negotiations or intent of the APA. Moreover, by his own account, he formed his lay opinions without considering Amendment No. 2, which he “never saw,” or other relevant documents. (Ex. 3 at 89-92.)

Accordingly, SCO requests that the Court enter an order in limine excluding statements Mr. Anderer made when he was an independent contractor for SCO.

Update 2:Lamlaw explains the motions in limine nicely:

If you are going to listen to any witnesses in order to ascertain what the terms of the APA were supposed to be (assuming the written version is ambiguous) the lawyers on both sides of the original agreement are the most important witnesses.

Novell has testimony from Novell lawyers. There is evidence of the give and take of negotiations, etc. That kind of evidence can be useful if the writing itself is not clear. But, SCO has not proffered any evidence of that kind. Rather it has only proffered evidence by confused and misunderstood third parties.

The court is just not going to want to hear from anyone that can only repeat the phrase “lock, stock and barrel” yet is confused as to why the copyrights were not actually transferred.

The only credible outside evidence suggests that the copyrights were not transferred because there was no agreement to do so.

And right here is where the bite takes hold. Evidence by external and confused parties is simply excluded. It is called an “evidence rule” for a reason. But, as I have explained above, even in jurisdictions where the rule does not exist, the evidence is often times discarded for not being relevant or simply not credible. In other words, those jurisdictions that do not have the rule find that they do not need it because they can eliminate that kind of testimony by other means. And they routinely do so.

But, here we are. “Lack of Personal Knowledge and Violation of Parol Evidence Rule” meaning they were not there at the time and listening to their testimony violates a rule against poor quality evidence.

The negotiators, lawyers and officers involved get to talk and everyone else waits out in the hallway. It just does not matter what they think.

Just because the appellate court decided that a trial should be conducted before a jury does not mean that the appellate court thinks that such external evidence holds some value. It really only means that they prefer a more formal process than just a summary judgment. Motions in Limine is part of that formal process.

Update 3: The judge had ordered a hearing on these motions for February 25 starting at 9AM. I hope you can be there, some of you. Don't be late, if you do go. This judge likes to run a ship shape courtroom. They will have the final pre-trial conference that day too at 2 PM, so it seems like a lot for one day. But several of them are basically the same, legally speaking, so that may explain it. And if he already has an inclination to grant Novell's motion in limine #1 and restrict the trial to precisely what the court of appeals listed and not one item more, then the list would get a lot smaller right there in one fell swoop.

The docket is in paragraph style, but I'm going to line it up so you can see them more clearly and can double check that they are all on the schedule for the same day. I am mystified as to why they are not listed in numerical order:

02/09/2010 - 665 - NOTICE OF HEARING ON MOTION

  • re: 634 MOTION in Limine No. 8 to Preclude SCO from Relying on Novell's Applications for Copyright Registration,
  • 629 MOTION in Limine No. 2 to Determine that First Amendment Defenses Apply to Slander of Title,
  • 659 MOTION for Daubert Hearing to Disqualify G. Gervaise Davis III,
  • 649 MOTION in Limine No. 5,
  • 644 MOTION in Limine No. 18 to Exclude Certain Testimony from Douglas Michels for Lack of Personal Knowledge and Violation of Parol Evidence Rule,
  • 636 MOTION in Limine No. 11 to Exclude Evidence of Substantial Performance,
  • 635 MOTION in Limine No. 10 to Preclude SCO from Presenting Argument Relating to Issues Stayed Pending Arbitration,
  • 650 MOTION in Limine No. 9 to Preclude SCO from Contesting that Agreements that Post-Date the APA May Constitute SVRX Licenses,
  • 637 MOTION in Limine No. 12 to Exclude Certain Testimony from William Broderick for Lack of Personal Knowledge and Violation of Parol Evidence Rule,
  • 655 MOTION for Daubert Hearing to Disqualify Dr. Christine A. Botosan,
  • 642 MOTION in Limine No. 17 to Exclude Certain Testimony from Ty Mattingly for Lack of Personal Knowledge and Violation of Parol Evidence Rule,
  • 657 MOTION for Daubert Hearing to Disqualify Dr. Gary Pisano,
  • 630 MOTION in Limine No. 3 to Determine that SCO is a Limited Purpose Public Figure,
  • 631 MOTION in Limine No. 4 to Preclude SCO from Contesting that Novell had an Objectively Reasonable, Good Faith Basis for its Statements Regarding Copyright Ownership,
  • 646 MOTION in Limine No. 3,
  • 627 MOTION in Limine No. 1 to Exclude Evidence and Argument Concerning Claims Not Included in SCO's Appeal or the Tenth Circuit's Limited Mandate,
  • 641 MOTION in Limine No. 16 to Exclude Certain Testimony from R. Duff Thompson for Lack of Personal Knowledge and Violation of Parol Evidence Rule,
  • 651 MOTION in Limine No. 6 to Preclude Reliance on Statements in December 2003 and March 2004 that do not Constitute Factual Assertions of Copyright Ownership,
  • 645 MOTION in Limine No. 2,
  • 647 MOTION in Limine No. 4,
  • 633 MOTION in Limine No. 7 to Determine that Common Law Privileges Apply to Allegedly Defamatory Publications,
  • 638 MOTION in Limine No. 13 to Exclude Certain Testimony From Lawrence Bouffard for Lack of Personal Knowledge and Violation of Parol Evidence Rule,
  • 632 MOTION in Limine No. 5 to Preclude SCO from Relying on Novell's June and August 2003 Statements as Factual Assertions of Copyright Ownership,
  • 640 MOTION in Limine No. 15 to Exclude Certain Testimony from Robert Frankenberg for Lack of Personal Knowledge and Violation of Parol Evidence Rule,
  • 639 MOTION in Limine No.14 to Exclude Certain Testimony from Jean Acheson for Lack of Personal Knowledge and Violation of Parol Evidence Rule,
  • 648 MOTION in Limine No.19 to Exclude Certain Testimony from Edward Chatlos, Burt Levine, and Kim Madsen for Lack of Personal Knowledge,
  • 643 MOTION in Limine No. 1
: (Notice generated by Chambers/slm) Motion Hearing set for 2/25/2010 beginning 09:00 AM in Room 142 before Judge Ted Stewart. PLEASE NOTE THAT THE FINAL PRETRIAL CONFERENCE FOR THIS CASE IS ALSO SET THIS DAY AT 2:00 P.M. (slm) (Entered: 02/09/2010)

If anyone can do the Novell motions as text, that would be helpful. And here are some more exhibits filed with the motions, but sealed, so all we can do is show you the docket entry:

02/08/2010 - 662 - **SEALED DOCUMENT** Exhibits 19A and 19B re 648 MOTION in Limine No.19 to Exclude Certain Testimony from Edward Chatlos, Burt Levine, and Kim Madsen for Lack of Personal Knowledge filed by Defendant Novell, Inc.. (asp) (Entered: 02/09/2010)

02/08/2010 - 663 - **SEALED DOCUMENT** Exhibit 13A re 638 MOTION in Limine No. 13 to Exclude Certain Testimony From Lawrence Bouffard for Lack of Personal Knowledge and Violation of Parol Evidence Rule filed by Defendant Novell, Inc.. (asp) (Entered: 02/09/2010)

02/08/2010 - 664 - **SEALED DOCUMENT** Exhibits 3F, 3P, 3R and 3S re 630 MOTION in Limine No. 3 to Determine that SCO is a Limited Purpose Public Figure filed by Defendant Novell, Inc.. (asp) (Entered: 02/09/2010)

Update: Wait a second. On the motion about Groklaw et al, the wording says that Novell can't mention commentary sites. But it leaves SCO free to smear away and mention Groklaw or any other commentary site, while Novell must stay silent. Wow. They are the amazings. Incidentally, Novell actually did oppose the earlier motion, only saying that it would agree to a ban on mentioning commentary sites only if it applied to both parties:
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. 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.

That last has to do with the fact that SCO back then was asking that no one be allowed to mention the IBM case or Groklaw. Now, SCO read Novell's words back then. Yet it not only doesn't include itself in the new motion, it tightens the allowance, by leaving out the wording about asking the court's permission, and it again states that it believes Novell will not oppose. But they know Novell did oppose the last time they wrote those identical words about the same issue. See what I mean?

Novell always has to win everything twice, because nothing sticks on the Boies Schiller wall, no matter how hard you throw stuff at it. I think that's one reason this case has dragged on and on for so long.

If you are curious, here's what happened the first time. The SCO motion was mooted by Judge Dale Kimball's ruling that there would be a bench trial, meaning with just a judge, no jury. So the danger of prejudicing the jury was moot:

While a jury may have been prejudiced by certain remarks, the court is not. Given the issues remaining for trial, however, the court would expect such references to be quite limited and only in relation to matters of testimony and exhibits that may overlap.
Novell has filed an errata for Motion in Limine 19's exhibits:

02/11/2010 - 666 - ERRATA to 648 MOTION in Limine No.19 to Exclude Certain Testimony from Edward Chatlos, Burt Levine, and Kim Madsen for Lack of Personal Knowledge filed by Defendant Novell, Inc.. (Attachments: # 1 Exhibit 19C)(Brennan, Sterling) (Entered: 02/11/2010)

Snips:
"Novell, Inc. ('Novell') hereby submits this Notice of Errata to Novell’s Motion in Limine No. 19: To Exclude Certain Testimony from Edward Chatlos, Burt Levine, and Kim Madsen for Lack of Personal Knowledge filed on February 8, 2010.

"This Notice of Errata is to correct Exhibit 19C to the motion. Incorrect deposition excerpts were attached to Exhibit 19C filed on February 8, 2010.

"Novell respectfully requests that the corrected Exhibit 19C attached be accepted as a matter of record in substitution for Exhibit 19C originally filed on February 8, 2010."

Update Here's Dr. Gary Pisano's deposition [PDF] as text:

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

EXHIBIT C

Deposition of GARY PISANO, PhD

Date: July 27, 2007

Case: SCO v. NOVELL

SHARI MOSS & ASSOCIATES
[address,phone,fax]

Q They may have been influenced by SuSE, right, SuSE’s statements that it didn’t infringe?

A Absolutely.

The respondents would – again, that’s the real strength of this methodology, that you have these player – you have these – these respondents expressing an interest in, you know, whether or not they’re going to purchaser indemnification at that time.

So you have a series of – you’ve got – again let’s take the 19 to 45 percent. You’ve got the residual of that, 81 to 55 percent, who have heard statements by SuSE. They’ve thought about issues around, you know, the infringement, et cetera, and they’ve decided that they’re not going to be – they’re not concerned enough with the – any of the issues.

But you have 19 to 45 percent who at that point are expressing concern and intentions to purchase indemnification.

And that’s the proxy. It’s an excellent proxy for those who would purchase a SCO RTU.

Q So what do you mean by the 55 to 81 percent are not concerned enough with any of the issues?

A That’s the – sorry. So they – where that comes from, you have 19 to 45 percent in the surveys are showing this range of – of concern from – very concerned --

Let me just repeat that, because I think I mumbled the words.

What the surveys – the 55 to 81 percent are those who said, you know, these IP issues are not a concern to us and/or we don’t plan to buy indemnification.

Those – they have taken into account all of the information available to them in making that – expressing that opinion.

The 19 to 45 percent have also taken into account all the information concerning lots of factors, and they are expressing high degree – you know, high degrees of concern and/or intentions to purchase indemnification, and they’re a proxy for the

Clients, I think – well, I don’t know if they’re --

They’re certainly giving it some degree of credibility. I don’t think they would put it before their clients if they didn’t think it was credible.

(Pause.)

Q Dr. Pisano, tellme what you know about the methodology for the Yankee Group 2004 survey.

A It was a survey of companies across a size – it’s actually laid out. I believe it’s right in the report itself, a thousand – a thousand customers – sorry, a thousand users were contacted.

They were asked a variety of questions, a thousand organizations that they had – that they had contacted.

I think this was an online survey. The respondents filled it out online, sort of a random sample.

MS. BORUCHOW: You’re questions is about 376, right? Exhibit 376?

MR. PERNICK: Yes.

THE WITNESS: Yes.

BY MR. PERNICK:

Q Is it your understanding looking at page 3 that a thousand organizations were surveyed?

(Witness read document.)

A Yes.

Q And do you see from the question in Exhibit 1, which is the box on page 3, it says that midsize or large organizations with 5,000-plus employees were asked to respond?

A Right, yes.

Q And is that in itself sufficient to convince you that this survey was reliable?

A It appears to be a reliable survey. I have no reason to doubt it.

Q Well, aside from having no reason to doubt it, what do you base your conclusion that it’s a reliable survey on?

A Again, this is an organization, Yankee, that does these kind of surveys routinely.

Companies rely on them for, you know, this kind of market research. That’s what these guys do for – for a living --, and it’s a large sample.

(Pause.)

A It’s reliable.

Q You say it’s a large sample.

Do you know who responded, how many – who at the various companies, anything like that?

A I don’t have the details on – on who responded.

Q I mean, to be clear, we know that a thousand companies were asked, I guess.

A Right.

Q We don’t know anything about who responded, right?

A I’d have to sort of look at that. I don’t recall offhand if I have the numbers on – on that, if that was reported.

(Pause.)

Q Does it matter?

A Response rate? Yes, I mean the specific – which specific players respond doesn’t matter, you know, Company A or Company B.

It doesn’t – the individual companies responding doesn’t matter, but --

Q What do you mean?

A Well, you said does it matter who responded.

So this goes out to a thousand organizations. And think about the companies, you know, 1 through a 1,000, you know, did Company No. 2 on the list respond or Company No. 3 on the list respond?

That doesn’t matter for a survey.

Q What – does it matter. --

I mean, you don’t know how many responded when you’re saying that doesn’t matter?

A No, I didn’t say that.

The overall response rate matters. I have – I can’t recall whether they report the response rate.

My presumption would be in a survey like this, in an organization like this, that they’re getting certain high enough response rates; otherwise they wouldn’t be --

You know, this is a company, again, whose primary – they’re in the primary business of doing these kind of surveys and, you know, and publish this kind – these kind of data.

You can actually – there’s surveys with very low response rates, which, again, as long as the responses are, you know, sort of randomly distributed, not biased on the response, you actually have a very robust study.

Q And how do you know in this case whether you have those conditions?

(Witness read document.)

A I – don’t know 100 percent for sure. Again, I’m relying on the fact that Yankee is a well-respected organization that --

You know, they – they kind of make their – they make their living really and their credibility in the market matters.

And so I’m going to, you know, believe that they are doing a good job on the – on the surveys.

We often are forced to do that in research and in my own academic research where I don’t have all the details of the surveys and response rates, but you look at the credibility of the – of the source.

And, again, this is an organization that makes its living by doing response –

By doing these kind of surveys.

And so, you know, presumably, they – they can’t be out there, you know, publishing flawed studies.

Q Do you know what checks were employed to make sure that this survey was done on a sound basis, what kind of procedural mechanisms?

A I don’t have details on that, no.

Q Do you generally?

A No.

I mean, there’s a standard – I mean, again, doing survey research, there’s a very standard set of approaches that are – that are kind of used in terms of, you know, sending it out, getting response rates, tracking.

It’s – it’s – it’s not, you know – making sure you record the responses correctly.

Again, a company like Yankee that does this kind of stuff would be really, I think – you know, this --

You know, it’s like Toyota making

Cars. They know how to make cars. These guys know how to do surveys.

Q You’re talking about in general, though?

You don’t know anything about what Yankee did to conduct this survey, right?

A I mean, I do.

They conducted a survey of a thousand organizations, you know, and asked them questions.

That’s what they did for this survey. That’s what you do in surveys.

Q Do you know if there was anything done to ensure that the respondents that these unknown, unnumbered entities had the authority and knowledge to answer for the companies?

MS. BORUCHOW: Object to form..

A I’m not sure I follow the question. Can you --

Q Well, do you know if there were any checks employed to make sure that, okay, we’re going to send this to Acme Company and we’re going to make sure we get a response

From the person who’s the one who should be answering?

A Again, in organizations like – they routinely administer surveys. This is not the first survey Yankee’s done. They list a whole bunch of other ones they’ve done.

So they have these things, have already kind of been worked out for who’s getting them and how they’re doing them.

They typically – you know, there’s – you know, those kind of procedures are in place in organizations like this.

This is not an unknown – Yankee Group is an extremely well-regarded, well known, you know, information provider in this space.

Q Do you know anything about what procedures, though, they employed here?

A I don’t know the specific procedures, no.

Q Generally do you know?

A The, you know, standard survey procedures. This was done – I can’t recall – I was looking through this so I could remember the

Specifics of whether it was done online and –

I – I don’t know the specific --

I mean, what kind of procedures are you --

Q I don’t know. I’m asking you.

A Again, it’s very standard – standard kind of survey. Contact these organizations and – and get responses.

Q Assuming there is some kind of standard survey procedure, how do you know it was employed here?

A Again, this – Yankee group is a very well-respected, you know, research organization. They do these kind of things all the time. Their data is used widely by organizations.

It’s a little like census data. I mean, you know, people use census data all the time in their research. Do they ask the questions, the details of the census? No. It’s an understanding it’s done – done well.

Q Did you interview any of the respondents to this survey?


  


A Blizzard of Motions in Limine in SCO v. Novell - Updated: SCO's as text, Hearing Feb. 25 @9AM & Dr. Pisano's Deposition | 282 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here.
Authored by: Erwan on Tuesday, February 09 2010 @ 03:25 AM EST
If any.

---
Erwan

[ Reply to This | # ]

News Picks Thread
Authored by: bugstomper on Tuesday, February 09 2010 @ 03:41 AM EST
Pick your news here. Please put the title of the News Pick in the Title box and
use HTML to make your links clickable.

[ Reply to This | # ]

OT, the Off Topic thread
Authored by: Erwan on Tuesday, February 09 2010 @ 03:42 AM EST
As usual.

---
Erwan

[ Reply to This | # ]

All things COMES here, please.
Authored by: Erwan on Tuesday, February 09 2010 @ 03:43 AM EST
Thanks.

---
Erwan

[ Reply to This | # ]

Here are the titles for the 5 SCO motions
Authored by: bugstomper on Tuesday, February 09 2010 @ 04:00 AM EST
The links to the PDFs are in the article so I didn't repeat them here:

643 SCO’s MOTION in Limine No. 1 to Preclude Misleading Statements or Evidence
Concerning Language in the APA Removed by Amendment No. 2

645 SCO’S MOTION in Limine No. 2 to Preclude References and Evidence Concerning
Reversed Rulings

646 SCO’S MOTION in Limine No. 3 to Exclude Reference to Novell’s Monetary
Judgment against SCO

647 SCO’S MOTION in Limine No. 4 to Exclude Reference to Litigation Commentary

649 SCO’S MOTION in Limine No. 5 to Exclude Statements Made by Michael Anderer
as an Independent Contractor for SCO

[ Reply to This | # ]

A Blizzard of Motions in Limine in SCO v. Novell
Authored by: jacks4u on Tuesday, February 09 2010 @ 04:01 AM EST
PJ, you made it in another pleading! #647 speciffically! SCO doesn't want Groklaw or any other 'web commentary' mentioned!

---
I'm not a Lawyer, this is my opinion only. I may be wrong, but I don't think so!

[ Reply to This | # ]

The five SCO Motions in limine
Authored by: Erwan on Tuesday, February 09 2010 @ 04:05 AM EST
  • [643] - Plaintiff, The SCO Group, Inc. (“SCO”), moves in limine to preclude misleading statements concerning language in the Asset Purchase Agreement (“APA”) that was changed by Amendment No. 2 to that Agreement.
    ARGUMENT
    The APA was amended by Amendment No. 2 to replace the language regarding the exclusion of “all copyrights.” The Tenth Circuit’s decision makes clear that the APA is to be interpreted together with Amendment No. 2. The Court expressly stated that “Amendment No. 2
  • [645] - Plaintiff, The SCO Group, Inc. (“SCO”), respectfully moves for an order in limine to preclude the parties and their representatives from referring to or introducing evidence concerning the now-reversed summary judgment rulings regarding copyright ownership and contract waiver rights previously entered in this matter.
  • [646] - Plaintiff, The SCO Group, Inc. (“SCO”), respectfully moves for an order in limine to preclude reference to Novell’s monetary judgment against SCO in this case.
  • [647] - Plaintiff, The SCO Group, Inc. (“SCO”), respectfully moves for an order in limine to preclude reference by the parties to the various sources which have been providing publicly available commentary on this and related SCO litigation.
  • [649] - Plaintiff, The SCO Group, Inc. (“SCO”), respectfully moves for an order in limine excluding statements made by Michael Anderer as an independent contractor for SCO.

What would be the "various sources" at [647]?

---
Erwan

[ Reply to This | # ]

"... since acquiring the code"
Authored by: Anonymous on Tuesday, February 09 2010 @ 05:58 AM EST
MEMORANDUM in Support re [659] MOTION for Daubert Hearing to Disqualify G.
Gervaise Davis III filed by Defendant Novell, Inc. (I. Introduction)

Does this code refer to the "certain associated assets" in the first
sentence of this Memorandum?

[ Reply to This | # ]

A Blizzard of Motions in Limine in SCO v. Novell
Authored by: Anonymous on Tuesday, February 09 2010 @ 06:48 AM EST
Excerpted from SCO MiL #1:

Plaintiff, The SCO Group, Inc. (“SCO”), moves in limine to preclude misleading
statements concerning language in the Asset Purchase Agreement (“APA”) that was
changed by Amendment No. 2 to that Agreement.

ARGUMENT

The APA was amended by Amendment No. 2 to replace the language regarding the
exclusion of “all copyrights.” The Tenth Circuit’s decision makes clear that the
APA is to be interpreted together with Amendment No. 2. The Court expressly
stated that “Amendment No. 2 must be considered together with the APA as a
unified document.” SCO Group, Inc. v. Novell, Inc., 578 F.3d 1201, 1211 (10th
Cir. 2009). Amendment No. 2 was not “meant to substantively change the intent of
the APA,” but “merely clarified or affirmed the intent of the APA.” Id. at 1214
n.2. As the Court of Appeals further noted: “Even if we considered the language
of the APA and Amendment No. 2 to be mutually antagonistic, California law still
dictates that we construe them together, following Amendment No. 2 wherever its
language contradicts the APA.” Id.

Novell previously made extensive arguments to the Court referring to the
language excluding “all copyrights” that was replaced by Amendment No. 2. That
language is no longer in the APA and it would be misleading for Novel to make
arguments in the presence of the jury that suggest the APA in fact still
contains such language. SCO recognizes that in presenting extrinsic evidence it
may be necessary to refer to the language that existed before Amendment
No. 2 was adopted. In doing so, however, the parties should be clear that this
is not the current state of the contractual language that is to be considered by
the jury.

[ Reply to This | # ]

Haiku
Authored by: Anonymous on Tuesday, February 09 2010 @ 09:33 AM EST

Motions in limine
are flying in Utah like
snowflakes in a storm

[ Reply to This | # ]

  • Haiku - Authored by: Anonymous on Tuesday, February 09 2010 @ 09:45 AM EST
  • Haiku - Authored by: tce on Wednesday, February 10 2010 @ 01:02 AM EST
  • Haiku - Authored by: Anonymous on Wednesday, February 10 2010 @ 01:52 AM EST
A Blizzard of Motions in Limine in SCO v. Novell
Authored by: Anonymous on Tuesday, February 09 2010 @ 10:14 AM EST
RE: Novell Motion in Limine #2:

Novell makes some broad steps to say: the First Amendment protections that were
developed in US Sup Ct rulings in the 70's regarding Freedom of Speech and
Freedom of the Press should apply to SCO's claim (if permitted to proceed) on
Slander of Title.

Novell cites, as very fresh law the US Supreme Court rulings 2 weeks ago in the
McCain-Feingold Campaign Finance law case, that a corporation (Novell) gets the
same protections that 'persons' do under the Freedom of Speech jurisprudence.

Applying the 2 steps above, Novell and SCO are 'persons', and SCO would be
considered a "Public Person" because they 'stepped on the public
pulpit' and made public claims against Linux as a broad infringer. Remember that
SCO wrote letters to Congress, etc, and so SCO made a very explicit public and
political statement.

Therefore, Novell is saying -- the standards required to reach and maintain a
claim of Slander (as applied to the statements Novell made in response to SCO)
are very high and highly protected, following the First Amendment logic that, as
SCO intentionally entered the public sphere of discourse, they have submitted
themselves to the full exercise of free-speech rights.

Hence, per Novell's argument, the standards of political speech would require,
to prove slander, that SCO would need to prove an actual intent of malice on
Novell's part, rather than just mere falsity, or even falsity accompanied with
negligence. SCO has such a theory of malice that they would argue (pointing to
the timing of Novell's press release and SCO's earnings report), but generally
the malice standard has been a difficult barrier for plaintiffs to meet.

Now, all of this is moot if the Slander of Title claim doesn't survive on other
grounds, ie, that it wasn't part of SCO's appeal and this waived.

LEXLAW

[ Reply to This | # ]

Exclude Reference to Litigation Commentary?
Authored by: Anonymous on Tuesday, February 09 2010 @ 10:20 AM EST
Perhaps Groklaw isn't the only "commentary" they'd rather not be
referenced.

There is also Kevin and Darl's site, which contains "Litigation
Commentary", most of it bug eyed, libelous conspiracy theories.

Then there's Parloff's blog, Enderle, Lyons, MOG, and "Murphy", not to
mention Ken Brown.

Then there is the profusion of statements made to the press by Darl himself.

I am sure they'd rather forget all of that stuff too.

If a jury were exposed to the Skyline Cowboy site and made aware of who runs it,
I'd wager that would be pretty damning. In fact, it may even be more damning
than if they read Groklaw.

[ Reply to This | # ]

A Blizzard of Motions in Limine in SCO v. Novell
Authored by: Anonymous on Tuesday, February 09 2010 @ 10:35 AM EST

What is left?

How much of this case is left for trial, assuming likely combinations of these motions pass?

[ Reply to This | # ]

Great stuff
Authored by: Anonymous on Tuesday, February 09 2010 @ 10:37 AM EST
Really excellent lawyering in here. In the midst of the
memo supporting the motion to exclude Palmisano's testimony
(specifically, top of page 9), as part of an argument that
SCO's indemnification offering is inferior to the other
indemnifications already available (often for free) to SCO's
intended victims (and therefore not worth nearly as much as
Palmisano assumes):

"Everyone expects SCO to lose."

Somebody was smiling when (s)he wrote that. Completely
truthful (the context makes clear that SCO executives
weren't counted), totally germane to the current motion, and
plain as day.

[ Reply to This | # ]

Recursive reply's?
Authored by: Anonymous on Tuesday, February 09 2010 @ 11:06 AM EST
I assume everyone gets a shot at replying to everyone elses motions here. Are
there then reply's to the reply's?

With all the work going on here perhaps this explains the actual reason that
Novell asked the supreme court for some more time.

[ Reply to This | # ]

Lack of Personal Knowledge and Violation of Parol Evidence Rule
Authored by: The Mad Hatter r on Tuesday, February 09 2010 @ 11:15 AM EST

From what I remember, all of SCO's witnesses to the contract negotiations will
be blocked from testifying under the 'Lack of Personal Knowledge and Violation
of Parol Evidence Rule', assuming that Judge Stewart grants these motions. Just
consider, SCO get's their jury, but cannot present the jury any evidence.

How delicious!



---
Wayne

http://madhatter.ca/

[ Reply to This | # ]

You're free to write about the trial during the trial
Authored by: Anonymous on Tuesday, February 09 2010 @ 11:24 AM EST
... unless the judge orders you not to.

The only people who can't read groklaw during the trial are the 12 jurors and the 2 alternates. They'll be receiving pretty explicit instructions from the judge on what they can and can't do; if they choose to violate those instructions, it's their responsibility, and there will be plenty of other (lower-quality, of course) sources of information on the net.

Everyone else, on both sides, is free to. That includes witnesses, since they're only going to be testifying abut the facts in the case, such as "on such and such a data I did such and such."

You can be sure the lawyers will be reading it.

[ Reply to This | # ]

We often wondered about the money SCO owes Novel
Authored by: Gringo on Tuesday, February 09 2010 @ 12:54 PM EST

Establishing that SCO did not substantially perform, and thus is precluded from obtaining any relief on its breach of contract claims...

...because SCO is now bankrupt and so cannot pay (or at least has not paid) the damages Judge Kimball awarded, the irreparability of Novell’s injury is “virtually self- evident.”

SCO’s failure to pay the damages awarded by Judge Kimball is an expressly enumerated statutory bar to specific performance, in particular. (“Specific performance cannot be enforced in favor of a party who has not fully and fairly performed)

This is from:
636 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No. 11 to Exclude Evidence of Substantial Performance filed by Defendant Novell, Inc..

[ Reply to This | # ]

#660 MOTION for Daubert Hearing to Disqualify G. Gervaise Davis III
Authored by: ChrisP on Tuesday, February 09 2010 @ 12:57 PM EST
Here we see Novell's current interpretation of those weasel words in Amendment
2. The way I read the motion it is saying that those words converted an implicit
license in the APA to an explicit license for Santa Cruz to use the SVRx code in
certain ways. I.e. it did not transfer ownership of any copyrights as a whole,
but licensed certain copyright rights needed for Santa Cruz to carry out their
business.

I think SCO can still argue about the wording...

"Pursuant to the APA, Novell transferred its UNIX and UnixWare business and
certain associated assets to SCO’s predecessor in interest. Schedule 1.1(b) of
the September 19, 1995 APA enumerated assets expressly excluded from the
transfer, including “all copyrights.” Amendment No. 2 revised that schedule,
effective October 16, 1996, so that instead of expressly excluding all
copyrights, without limitation, it instead excluded “[a]ll copyrights ... except
... copyrights ... required for SCO to exercise its rights with respect to the
acquisition of UNIX and UnixWare technologies.” The parties disagree about what
rights fall within that category.

Novell does not dispute that SCO acquired, e.g., the rights “to reproduce,” “to
prepare derivative works,” and “to distribute copies” of UNIX and UnixWare, as
set forth in the Copyright Act. See 17 U.S.C. § 106(1)-(3). Likewise, Novell
does not deny that SCO might have the right to exclude others from exercising
those same rights with respect to derivative works that SCO has authored since
acquiring the code. What Novell does deny is that SCO acquired the right to
exclude Novell (and others) from exercising those rights retained by Novell
under the APA with respect to UNIX"

---
SCO^WM$^WIBM^W, oh bother, no-one paid me to say this.

[ Reply to This | # ]

SCO an opportunist
Authored by: Gringo on Tuesday, February 09 2010 @ 01:14 PM EST
In Novel's MEMORANDUM IN SUPPORT OF NOVELL, INC.’S DAUBERT MOTION TO DISQUALIFY DR. GARY PISANO (658)...

Linux’s penetration of the enterprise market meant there was more at stake for individual users, increasing their desire for indemnification. As the survey recognized, that penetration also increased the risk that various opportunists, not just SCO, would try to extract royalties from the growing user base: “forget about SCO. Imagine there is no SCO lawsuit. … Should SCO lose, as many believe it will, there is nothing to preclude other individuals or organizations from filing similar lawsuits.”

[ Reply to This | # ]

"misleading statements about the APA"
Authored by: Anonymous on Tuesday, February 09 2010 @ 02:02 PM EST
That SCO's #1 really struck me odd the minute I first read it. Basically it
says, like PJ comments, that SCO want's to win before actually entering the
court.

My understanding is that this was already decided by judge Kimball and then
reversed by appeals court saying that this is something that should (must?) be
decided by the jury. Now SCO is asking the judge to decide this matter, not to
leave it to the jury.

Or am I missing something here? And if I'm right and if appeals court has said
that this must go to the jury, can judge Steward even decide on this one?

[ Reply to This | # ]

Heisenberg's Groklaw
Authored by: Anonymous on Tuesday, February 09 2010 @ 02:40 PM EST
> [Groklaw has a] tendency to make the existence of any fact [...]
> more probable or less probable than it would be without [Groklaw].

Schroedinger's Groklaw: If you read this website the Judge will die,
or not.

Ay lassy, ye -can- change the laws of physics.

[ Reply to This | # ]

All I can say is: WOW!
Authored by: Anonymous on Tuesday, February 09 2010 @ 06:00 PM EST

I'm up to Novell's Limine #12. If Novell has "hit the nail on the head" so to speak - and it is really up to Judge Stewart to decide that - then I get the impression SCOG is going to be faced with the same trial they were faced with before:

    Going in with nothing on their side and everything on Novell's side
If Mr. Cahn didn't realize just how little of a case SCOG had before, it's my humble opinion he should upon reading the motions.

Caveat: this conclusion is based on the same historical pattern throughout "The SCOG Trials!" to date. In short: my opinion could very well be different if SCOG replies with anything of substance but I don't expect them to have anything of substance.

RAS

[ Reply to This | # ]

No. 11 May Be a Bombshell (#636)
Authored by: RFD on Tuesday, February 09 2010 @ 06:29 PM EST
NOVELL’S MOTION IN LIMINE
NO. 11 TO EXCLUDE EVIDENCE OF
SUBSTANTIAL PERFORMANCE

If I read this correctly, Novell is asserting that even if the intent of the
APA, as amended, was for Novell to transfer certain copyrights, SCO is not now
entitled to specific performance because "SCO never pled that it
substantially performed, and as explained below, the law of this case is that it
did not."

IANAL, but I don't see how SCO can afford to lose this one. I expect a real
fight over this.



---
Eschew obfuscation assiduously.

[ Reply to This | # ]

Hearing Scheduled!
Authored by: Steve Martin on Tuesday, February 09 2010 @ 07:07 PM EST
The judge has scheduled a hearing on ALL these motions (yep, every single one of
them) for Thursday, February 25th at 9:00 AM Utah time. Get yer tickets now.


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

[ Reply to This | # ]

SCO #1
Authored by: sk43 on Tuesday, February 09 2010 @ 08:37 PM EST
What SCO says:

"The APA was amended by Amendment No. 2 to REPLACE the language regarding
the exclusion of “all copyrights.”

What Schedule 1.1(b) of the APA actually says:

"All copyrights and trademarks, except for the trademarks UNIX and
UnixWare."

What Amendment 2 actually says:

"With respect to Schedule 1.1(b) of the Agreement, titled 'Excluded
Assets', Section V, Subsection A shall be REVISED to read:"

"All copyrights and trademarks, except for the copyrights and trademarks
owned by Novell ..."

The only language that I see that was REPLACED was text about trademarks;
otherwise all that Amendment 2 did was to ADD language.

[ Reply to This | # ]

"publish[es] biased, anti-SCO coverage"
Authored by: Anonymous on Tuesday, February 09 2010 @ 09:12 PM EST
And trust us, SCO and Darl have earned every last octet of it.

[ Reply to This | # ]

Novell Motion Text Thread
Authored by: Steve Martin on Tuesday, February 09 2010 @ 09:23 PM EST
I'll take 629.

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

[ Reply to This | # ]

Questions about Motions in Limine
Authored by: wvhillbilly on Tuesday, February 09 2010 @ 09:52 PM EST
-What are the judge's rulings upholding or granting motions in limine called?

-How are they enforced?

-What happens if a party to the litigation decides to ignore such a ruling or
tries to make an end run around it? Can he be cited for contempt of court?

---
Trusted computing:
It's not about, "Can you trust your computer?"
It's all about, "Can your computer trust you?"

[ Reply to This | # ]

Scoreboard
Authored by: webster on Tuesday, February 09 2010 @ 10:54 PM EST
.

SCO's MOTION in Limine No. 1 to preclude misleading statements concerning
language in the APA that was changed by Amendment No. 2 to that Agreement.

Basis: The Circuit Court of Appeals language buying SCO's argument hook, line
and sinker. This request almost precludes the trial. However, the language can
be construed by Novell to still argue the APA never passed copyrights because
they weren't necessary to the business and weren't specified, and Novell in fact
hasn't turned them over because the required proof of need has not been
proffered. Novell will concede if SCO may not mislead by saying unspecified
copyrights transferred. This is an attempt by SCO to substitute some of the
language of the Court of Appeals for a conclusion and mandate that need not
trouble the jury. Good try.

Comment: Novell will agree to this one if the Court applies it to both parties.
Let there be a trial of only "leading" statements. This motion is
argumentative and worthless.

Prediction: Granted but applied to both parties, a tie, 0-0-1
(Plaintiff-Defendant-tie).

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

SCO's MOTION in Limine No. 2 to preclude the parties and their representatives
from referring to or introducing evidence concerning the now-reversed summary
judgment rulings regarding copyright ownership and contract waiver rights
previously entered in this matter.

Basis: Irrelevance, reasonability and prejudice.

Comment: This is a sneaky, dirty motion. They want to take Kimball's analysis
out of the trial since it was reversed. Novell can still argue these points to
the jury for them to decide. SCO again wants to substitute the gullibility of
the Court of Appeals for the jury. The point is the jury should decide. The
waiver rights are a powerful argument for Novell so far as the copyrights are
concerned. They reflect the intent of the APA.

Prediction: Novell will point out that it is in the APA which the jury can see.
They should be able to make arguments to the jury that even judges can disagree
about. If it is in the APA, they can argue about it. The mandate says the jury
decides. It would be too hard to police. They would spend half the trial at
the bench or in jury-absent arguments. This one for Novell, 0-1-1

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

SCO's MOTION in Limine No. 3 to preclude reference by the parties to Groklaw and
others.

Basis: This is a bombastic request just to prepare the judge for the voir dire
questions which will insure Linux ignorance. They also want to poison Groklaw
in the Judge's eyes. It is reasonable to keep such references out. They didn't
even have to ask unless they plan to introduce some evidence that may be
rebutted by such references.

Prediction: Novell can agree to this reserving the right to revisit this
preclusion if SCO raises anything apropriately fishy. Another tie, no win for
the obvious, 0-1-2.

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

SCO's MOTION in Limine No. 4 to preclude reference to Novell’s monetary judgment
against SCO in this case.

Basis: SCO cites prejudice and relevance.

Comment: Since it arises out of the APA, it is relevant. The reality hurts
SCO, but that is not "undue" prejudice. Indeed it points out how
valuable it is to SCO that the 60(b) motion to precluding another shot at the
$30 million is being arbitrarily left out. Novell and SCO might work out a
stipulation so this can be mentioned carefully. Novell may also ask that SCO
not bring up the arbitrary preclusion of the other money they claim as a
victory. The "limine" is getting very crowded, but this suggests
another for Novell.

Prediction: Stewart likes things fast and simple. Too bad for Novell, score
for SCO, 1-1-2.

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

SCO's MOTION in Limine No. 5 for an order in limine excluding statements made by
Michael Anderer as an independent contractor for SCO.

Basis: Anderer was an independent contractor not an agent so his statments
should not be admitted about the APA.

Comment: SCO argues their theory as a conclusion. Novell will say the jury
must decide if SCO was an agent. He got a commission and acted for SCO they
will say. He certainly got paid for it. He also spilled the beans on the
Monopoly arguing for his commissions. In that his analysis and actions spurred
other SCO actions in relation to the APA makes this relevant. SCO may have
misfired here. This will help to educate Judge Stewart about SCO's own concerns
about the APA. This corroborates some of SCO's actions in dealing with Novell
as if they needed Novell, for their copyrights. This request is too one-sided.


Prediction: This one is for the jury. Novell prevails, 1-2-2.

No time for Novell's 19, the snow is piling up.

~webster~

.

[ Reply to This | # ]

Well this is getting interesting again...
Authored by: SilverWave on Wednesday, February 10 2010 @ 07:07 AM EST
It was always interesting to see the legal jockeying prior to a trial.

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )