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| Novell's Motions in Limine, as text, #s 2, 3, 4, 5, 6, 7, 8 - Slander of Title Motions |
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Tuesday, February 09 2010 @ 10:49 PM EST
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Here are Novell's motions in limine it just filed, as text, and keep stopping by, because as we get them finished we hope to complete them all. We start with 629 [PDF], Novell's Motion in Limine No. 2 to Determine that First Amendment Defenses Apply to Slander of Title and 630 [PDF], Novell's Motion in Limine No. 3 to Determine that SCO is a Limited Purpose Public Figure. We already have Novell's motion in limine #1 as text here. You can find all of SCO's motions in limine as text that it also filed on February 8th in the previous article. We'll divide up Novell's motions by category. On this page, you'll find the motions related to SCO's slander of title claim. As you read them, think about the SCO Group's position, that they would even sue Novell over this, and ask yourself, How reasonable are these people? It seems to me that in SCO's preferred universe, they get to make accusations and assertions in public, and no one is allowed to respond on pain of litigation. Is that America to you? No. Seriously. Here's SCO's Second Amended Complaint [PDF], so you can read their claim for yourself and form a reasoned opinion. If you have some time to donate to this effort, please help us finish them up as text. We have readers who depend on screen readers, for one thing, and PDFs are a bit harder to work with, so from early days, Groklaw has tried to make the PDFs available also in plain text, and if you can lend a hand, that would be lovely. If we all do just a little bit, it's not burdensome on anyone. However, if you are already working on the Comes v. Microsoft exhibits, please continue with that project, if you don't mind.
As we did with SCO's motions, we'll leave off headers and signatures, for the sake of speed, so go by the PDF for anything important.
Novell's Motion in Limine #2, 629 [PDF]:
NOVELL'S MOTION IN LIMINE No. 2 TO DETERMINE THAT FIRST AMENDMENT DEFENSES APPLY TO SLANDER OF TITLE
I. INTRODUCTION
SCO claims that Novell slandered SCO's alleged title to the UNIX
copyrights by falsely stating that SCO did not own the UNIX
copyrights. (Second Am. Compl. 9-10, 91-92, Dkt. No.
96.) Novell has asserted the First Amendment as a defense.
(Novell's Answer 136, Dkt. No. 115.) The First Amendment
protects corporations, as the Supreme Court recently confirmed.
Citizens United v. FEC, 2010 U.S. LEXIS 766 (U.S. Jan. 21,
2010) (Ex. 2A). Novell moves for a ruling that First Amendment
defenses apply to SCO's slander of title claim, because the First
Amendment applies to any claim based on an alleged "injurious
falsehood."
I. FIRST AMENDMENT DEFENSES APPLY TO SLANDER OF TITLE
The Supreme Court held in New York Times Co. v. Sullivan,
376 U.S. 254, 280 (1964), that the First Amendment requires a
public official to prove that a defamatory falsehood about his
official conduct was made with "actual malice," meaning "knowledge
that it was false or with reckless disregard of whether it was
false or not." The Supreme Court later extended this defense to
claims by private individuals who are "limited public
figures."1
The Supreme Court also extended this defense to claims for invasion
of privacy and intentional infliction of emotional distress that
are based on allegedly false or offensive speech. See Time, Inc.
v. Hill, 385 U.S. 374, 390-91 (1967) (private individuals must
prove "actual malice" on invasion of privacy claim based on
allegedly false report on newsworthy matter); Hustler Magazine
v. Falwell, 485 U.S. 46, 51-53 (1988) (First Amendment applies
to intentional infliction of emotional distress claim based on
"outrageous" caricature of Jerry Falwell, a public figure).
The Supreme Court relied on the same principle in all of these
cases: First Amendment defenses to tort claims based on allegedly
false speech are essential to ensure adequate "breathing space" for
"uninhibited, robust, and wide-open debate" on matters of public
concern. See, e.g., New York Times, 376 U.S. at 269-72;
Time, 385 U.S. at 388; Hustler, 485 U.S. at 52.
Federal courts have relied on this principle in extending the
First Amendment to other claims directed against an allegedly
wrongful statement. The Tenth Circuit affirmed dismissal of an
injurious falsehood claim based on a "negative outlook" bond
rating, finding that this was a constitutionally protected opinion,
and plaintiff had failed to identify any false statement of fact.
Jefferson County Sch. Dist. No. K-1 v. Moody's Investor's
Services, Inc., 175 F.3d 848, 856 (10th Cir. 1999). The Tenth
Circuit held that the First Amendment also barred antitrust and
tortious interference claims, rejecting the argument that those
claims involved conduct rather than speech. Id. at 856-60. The
Tenth Circuit cited the Supreme Court's concern about "the chilling
effect on protected speech that might ensue if damages could be
recovered on emotional distress claims for publications that were
not provably false." Id. at 857, citing Hustler, 485
U.S. at 53-55. It also noted that the Ninth Circuit and other
courts had "reject[ed] a variety of tort claims based on speech
protected by the First Amendment," including trade libel, tortious
interference, and disparagement.2 Id.; see Bose Corp. v.
Consumers Union, 508 F. Supp. 1249, 1270-71 (D. Mass. 1981)
(First Amendment applies to product disparagement claim), rev'd
on other grounds, 692 F.2d 189 (1st Cir. 1982), aff'd in
relevant part, 466 U.S. 485 (1984).
Similarly, the California Supreme Court held that First
Amendment protections "apply to all claims whose gravamen is the
alleged injurious falsehood of a statement" as "constitutional
protection does not depend on the label given the stated cause of
action." Blatty v. New York Times, Co., 42 Cal. 3d 1033,
1042-1043 (1987).3 Thus, the First Amendment applies to
claims for trade libel, negligence, and intentional and negligent
interference with economic advantage that "have as their gravamen
the alleged injurious falsehood of a statement..." Id. at
1037.
SCO's slander of title claim is explicitly based on Novell's
allegedly false statement that SCO does not own the UNIX
copyrights. While no court appears to have addressed whether
slander of title is subject to the First Amendment, the above cases
compel the conclusion that it is subject to the same First
Amendment defenses that apply to any claim based on "injurious
falsehood." Slander of title is closely related to injurious
falsehood, trade libel, and other torts to which the First
Amendment has expressly been held to apply. As Dean Prosser
noted:
There is a tort which passes by many names. Sometimes
it is called slander of title, sometimes slander of goods, or
disparagement of goods, or trade libel, or unfair competition, or
interference with prospective advantage....Under whatever name, the
essentials of the tort appear to be the same. It consists of the
publication...of false statements concerning the plaintiff, his
property, or his business.
Dean William L. Prosser, Injurious Falsehood: The Basis of
Liability, 59 Colum. L. Rev. 425, 425 (1959) (Ex. 2B); see
also Direct Import Buyers Ass'n v. KSL, Inc., 538 P.2d 1040,
1042 (Utah 1975) (slander of title and injurious falsehood are
similar); Art Metal-U.S.A., Inc. v. United States, 753 F.2d
1151, 1155 (D.C. Cir. 1985) (injurious falsehood and defamation
have "always been very closely related," citing Restatement
(Second) of Torts 623A comment g (1977) (Ex. 2C)).
_________________
1
Gertz v. Robert Welch, Inc., 418 U.S. 323, 351-52 (1974)
("actual malice" must be shown by individual who became public
figure by "voluntarily inject[ing] himself or [being] drawn into a
particular public controversy," and First Amendment requires proof
of fault even by a purely private individual).
2 The Tenth Circuit cited Unelko Corp. v. Rooney, 912 F.2d
1049, 1057-58 (9th Cir. 1990) (First Amendment applies to product
disparagement, trade libel, and tortious interference);
Henderson v. Times Mirror Co., 669 F. Supp. 356, 362 (D.
Colo. 1987) (disparagement and intentional interference claims),
aff'd, 876 F.2d 108 (10th Cir. 1989); So. Dakota v.
Kansas City So. Indus., 880 F.2d 40, 50-54 (8th Cir. 1989)
(tortious interference), overruled on other grounds, Warfield v.
KR Entm't, Inc. (In re Federal Fountain, Inc.), 165 F.3d 600,
601 (8th Cir. 1999); and Eddy's Toyota of Wichita, Inc. v. Kmart
Corp., 945 F. Supp. 220, 224 (D. Kan. 1996) (tortious
interference).
3
Utah courts give substantial weight to California precedents
concerning First Amendment rights, especially when interpreting the
corresponding right under the Utah Constitution. See West v.
Thomson Newspapers, 872 P.2d 999, 1016-17 (Utah 1994) (relying
on California Supreme Court precedent in concluding that "the Utah
Constitution protects expressions of opinion").
Novell's Motion in Limine #3, 630 [PDF]: NOVELL'S MOTION IN LIMINE NO. 3 TO DETERMINE THAT SCO IS A LIMITED PURPOSE PUBLIC FIGURE I. INTRODUCTION
SCO claims that Novell slandered SCO's alleged title to the UNIX copyrights by falsely
stating that SCO does not own the copyrights. (Second Am. Compl. 8-10, 91-92, Dkt. No.
96.) SCO relies on statements allegedly made between May 28, 2003 and March 2004. (Id.
37.) These statements were after SCO had publicly asserted that the Linux operating system
was an illicit copy of UNIX and that SCO's ownership of the UNIX copyrights entitled it to
assert billion-dollar claims against IBM, Novell, and thousands of other Linux vendors and users.
Novell moves for a ruling that SCO is required to prove "actual malice" under the First
Amendment ("constitutional malice") because SCO injected itself into the public controversy
about SCO's alleged UNIX rights and thus became a "limited purpose public figure."1
II. UNDISPUTED FACTS
SCO actively sought media coverage of its UNIX claims before Novell allegedly
slandered SCO's title. As Judge Kimball noted, SCO made a "plethora of public statements
concerning IBM's and others' infringement of SCO's purported copyrights to the UNIX
software." (Order in SCO v. IBM at 10, Dkt. No. 398 (Ex. 3A).) Novell replied publicly "while
the public was reacting to SCO's claim that use of Linux required a UNIX license." (Order in
SCO v. Novell at 30, Dkt. No. 377.) SCO's media blitz included multiple press releases and
statements, as well as threatening letters to 1,500 companies, including Novell, which asserted
that Linux "infringes on [SCO's] UNIX intellectual property and other rights."2 (Ex. 3E at 2.)
SCO's PR firm, Schwarz Communications, provided SCO with weekly reports of upcoming
press interviews and monthly summaries of the massive press coverage. (Exs. 3F, 3G.)
1
SCO's UNIX claims ignited a firestorm of controversy. Media comments included:
- "Has SCO fired shot to start Linux war?" (2/11/03 InfoWorld, Ex. 3J at 1.)
- "The worst case scenario for the Linux community could be that everyone running
Linux would have to pay licensing fees," and "[t]here also has been some concern
that SCO-Caldera is planning to charge license fees for GNU, GPL, open source, free
or otherwise public domain software." (2/5/03 MozillaQuest, Ex. 3H at NOVTR
5837.)
- Is SCO "Linux' New Worst Enemy"? (2/10/03 osOpinion.com, Ex. 3I at 1.)
SCO "has filed a Dollars 1bn trade secrets lawsuit against IBM that could derail the
massive momentum built up around the free Linux operating system" (3/8/03 The
Financial Times, Ex. 3M; see 3/10/03 CNET News, Ex. 3N at 2), but "analysts
questioned whether the lawsuit has merit." (3/7/03, NewsFactor.com, Ex. 3L at 1.)
- SCO "sent an unsettling letter to some 1500 companies worldwide," so "[i]f you use
Linux, SCO has just threatened to sue you." "If the company actually has something
to show, it's past time to put some cards on the table. As it is, SCO gives the
impression of trying to destroy the Linux community away with words that have little
backing in the real world." (5/14/03 LWN.net, Ex. 3O at 1.)
(See also Exs. 3G, 3K, 3P to 3S (additional press coverage and press clipping summaries).
III. SCO IS A LIMITED PURPOSE PUBLIC FIGURE
The First Amendment requires a "limited-purpose public figure" to prove by clear and
convincing evidence that the statement at issue was made with constitutional malice, meaning
"knowledge that [the statement] was false or with reckless disregard of whether it was false or
not." World Wide Ass'n of Specialty Programs v. Pure, Inc., 450 F.3d 1132, 1136 (10th Cir.
2006) (citations omitted). "Limited-purpose public figure" includes a party that has "voluntarily
injected" itself or has been drawn into a matter of "public controversy." Id.; Gertz v. Robert
Welch, Inc., 418 U.S. 323, 351 (1974). Whether a party is a limited-purpose public figure is a
question for the court to resolve. World Wide Ass'n, 450 F.3d at 1137.
A company that invites public comment through the media may be a limited public figure.
Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 273-74 (3d Cir. 1980) (company was limited
public figure as to quality of beef because ads "invited public attention, comment, and
2
criticism"); Bose Corp. v. Consumers Union, 508 F. Supp. 1249, 1273 (D. Mass. 1981)
(company "invited public attention" by advertising new loudspeaker and was thus limited public
figure) (citation omitted), rev'd on other grounds, 692 F.2d 189, 197 (1st Cir. 1982) (reversing
finding of constitutional malice), aff'd, 466 U.S. 485, 513 (1984) (no constitutional malice).
"Public controversy" includes commercial matters affecting the public. Steaks Unlimited, 623
F.2d at 274 (beef promotion); Bose Corp., 508 F. Supp. at 1273 (loudspeaker quality); Paterson
v. Little, Brown & Co., 502 F. Supp. 2d 1124, 1141-42 (W.D. Wash. 2007) (debate over origin of
DOS computer operating system).2
Here, SCO aggressively sought media coverage of its UNIX claims by press releases and
public statements issued before Novell made its allegedly slanderous statements. SCO's
campaign was widely viewed as an attack on the entire Linux community and the open source
principles on which Linux is based, with far-reaching implications. Thousands of companies and
individuals had a direct interest in the debate over whether SCO had the right to demand license
fees for software that SCO had released on an open source basis, and industry players and other
members of the public actively participated in the debate. SCO not only "thrust" itself to the
forefront of this controversy to influence its resolution (Waldbaum, 627 F.2d at 1297, 1300),
SCO created the controversy. Thus, SCO is a "limited-purpose public figure" concerning its
alleged UNIX rights and must prove that Novell acted with "constitutional malice."
_______________________
1
First Amendment defenses apply for the reasons in Novell's Motion In Limine No. 2.
2
SCO's press releases are at www.sco.com, and are submitted as Exhibits 3B to 3D. SCO has
admitted issuing the press releases and sending the letters. (Reply to Novell's Counterclaims
41, 51, Dkt. No. 121; Novell's Counterclaims 41, 51, Dkt. No. 120.) SCO's letter noted
that its suit against IBM was "widely reported and commented upon in the press." (Ex. 3E at 2.)
3
See also Waldbaum v. Fairchild Pubs., 627 F.2d 1287, 1297, 1299 (D.C. Cir. 1980) ("viability
of cooperatives as a form of commercial enterprise" was "public controversy" because "debated
publicly" and had "substantial ramifications for nonparticipants"); Carr v. Forbes, 259 F.3d 273,
279 (4th Cir. 2001) ("public controversy" includes dispute that "has received public attention
because its ramifications will be felt by persons who are not direct participants"); World Wide
Ass'n, 450 F.3d at 1137 (debate concerning residential treatment programs for troubled teens).
Novell's #4, 631 [PDF]:NOVELL'S 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.
INTRODUCTION
Judge Kimball held, as a
matter of law, that Novell's statements regarding ownership of
the UNIX
copyrights were based on Novell's "good faith interpretation" of the contracts
and
were not "objectively unreasonable." SCO did not appeal -- and the Tenth
Circuit did not
reverse -- these rulings. Therefore, the law of the case and
the mandate rule preclude SCO from
presenting any evidence or argument
contrary to these rulings.
I. UNDISPUTED FACTS
SCO asserted in its
Second Amended Complaint that Novell breached the implied
covenant of good
faith by "numerous acts of bad faith," including "making false and
misleading
statements denying SCO's ownership of the copyrights in UNIX and
UnixWare." (Second Am.
Compl. 99, Dkt. No. 96.) SCO also asserted that
Novell engaged in "unfair competition" by
"falsely claim[ing] ownership of
SCO's copyrights in UNIX and
UnixWare." (Id. 122.)1
In April 2007, Novell moved for summary
judgment on SCO's breach of contract and
unfair competition claims.
(Novell's Mot. for Partial Summ. J., Dkt. No. 272.) SCO argued in
its
Opposition that the implied covenant can be breached by "objectively
unreasonable conduct,"
and that SCO's other concurrent motions and evidence
showed that "Novell's statements were
false and Novell knew it." (SCO's Mem.
in Opp'n at 18-19, Dkt. No. 299.) Novell replied that
the implied covenant
did not "prohibit[] a party from making statements about its
understanding
of contractual rights," and that Novell's statements were not
false for the reasons in its
concurrent motions. (Reply ISO Novell's Mot.
for Partial Summ. J. at
15-16, Dkt No. 332.)
In August 2007, Judge Kimball
granted summary judgment for Novell on SCO's unfair
competition and contract
claims on several grounds. (Order at 63-65, 102, Dkt. No. 377.)
Judge
Kimball ruled that even if SCO owned the copyrights, Novell would be
entitled to summary
judgment on unfair competition because "there is no
evidence that Novell's public statements
1
were based on anything but its good faith
interpretation of the contracts." (Id. at 64.) He also
held that breach of
the implied covenant requires "objectively unreasonable conduct," and
that
"there is no evidence to demonstrate that Novell's position was
contrary to its own understanding
of the contractual language or objectively
unreasonable...." (Id. at
65.)
In November 2008, Judge Kimball entered a
final judgment dismissing SCO's unfair
competition and contract claims (as
well as other claims) per his prior rulings. (Final Judgment
at 1, Dkt. No.
565.) SCO appealed other rulings, but did not challenge the dismissal of
its
contract and unfair competition claims or the ruling that SCO failed to
present evidence that
Novell lacked an objectively reasonable, good faith
basis for stating that SCO did not own the
copyrights.2 The Tenth Circuit did not reverse that
ruling; on the contrary, it held that Novell
had "powerful arguments" to
support its position on copyright ownership, and that this issue
presented
"ambiguities" that "could legitimately be resolved in favor of either party."
SCO
Group, Inc. v. Novell, Inc., 578 F.3d 1201, 1215 (10th Cir.
2009).
II. THE LAW OF THE CASE AND THE MANDATE RULE BAR SCO FROM
DISPUTING THAT NOVELL'S STATEMENTS WERE REASONABLE.
The law of the case
doctrine bars relitigation of "issues previously decided, either
explicitly
or by necessary implication." Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1183
(10th
Cir. 1995) (citation omitted).1 This doctrine precludes relitigation of
issues decided for one
claim that are relevant to a different claim. See St.
Paul Fire &
Marine Ins. Co. v. Heath
2
Fielding Ins. Broking Ltd., No. 91
Civ. 0748 (MJL), 1995 U.S. Dist. LEXIS 19847, at *30-35
(S.D.N.Y. Dec. 30,
1995) (Ex. 4A) (law of the case bars negligent misrepresentation claim
in
view of prior dismissal of negligence claim). It applies to an alternate
ground for a ruling,
United States v. Sanchez, 35 F.3d 673, 678 (2d Cir.
1994), as well as to a ruling that the evidence
is legally insufficient to
support a claim. Rohrbaugh, 53 F.3d at 1183 (applying law of case to
ruling
that evidence was legally insufficient to show that plaintiff was a foreseeable
buyer whom
defendant had a duty to warn). This doctrine is subject to three
"exceptionally narrow"
exceptions for (1) substantially different evidence
in a later trial; (2) intervening change in
controlling legal authority; or
(3) a clearly erroneous decision whose application would work a
manifest
injustice. United States v. Alvarez, 142 F.3d 1243, 1247
(10th Cir. 1998).
4
Here, Judge Kimball dismissed SCO's
contract and unfair competition claims based on
his ruling that SCO
presented no evidence that Novell lacked an objectively reasonable,
good
faith basis for its statements regarding copyright ownership. SCO could
have appealed this
ruling, but failed to do so. None of the narrow
exceptions apply. Therefore, Judge Kimball's
ruling is binding law of the
case that bars SCO from relitigating this
ruling.
The mandate rule requires
the same result. As this Court held in denying Novell's Rule
60(b) motion,
"the mandate rule prevents a court from considering an argument that could
have
been, but was not, made on appeal." (Order at 3, Dkt. No. 620.) SCO
could have argued on
appeal that it had presented evidence that Novell
lacked a good faith basis for its statements.
SCO did not make this
argument. Therefore, the Court should preclude SCO from presenting
any
evidence or argument that Novell did not have an objectively reasonable, good
faith basis for
its statements regarding copyright
ownership.
___________________
1
SCO's contract and unfair competition claims include
other theories not at issue in this motion;
references to these claims
herein are limited to the "false assertion
of copyright ownership"
claim.
2 Copies of SCO's appellate briefs, as well as Judge
Kimball's summary judgment ruling and
the Tenth Circuit decision, were
included with Novell's Motion In Limine No. 1. SCO's
appellate briefs did
not even mention Judge Kimball's determination that Novell had a
reasonable,
good faith basis for its statements.
3 See
Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810 F.2d 243, 250-251
(D.C.
Cir. 1987) ("legal decision made at one stage of litigation,
unchallenged in a subsequent appeal
when the opportunity to do so existed,
becomes the law of the case for future stages of the same
litigation, and
the parties are deemed to have waived the right to challenge that decision at a
later
time").
4 See also United States
v. Alexander, 106 F.3d 874, 878 (9th Cir. 1997) (district court's failure
to
apply law of the case to previous ruling constituted abuse of discretion where
none of the
exceptions were met); Thomas v. Bible, 983 F.2d 152, 155 (9th
Cir. 1993) (same).
3
Novell's #5, 632 [PDF]:
NOVELLS MOTION IN LIMINE
NO. 5 TO PRECLUDE SCO FROM
RELYING ON NOVELLS JUNE
AND AUGUST 2003 STATEMENTS
AS FACTUAL ASSERTIONS OF
COPYRIGHT OWNERSHIP.
SCO claims that Novell slandered its title by asserting that Novell, and not
SCO, owns the
UNIX and UnixWare copyrights. (Dkt. No. 96, 91.) SCOs complaint points to
statements
allegedly made by Novell from May 2003 to March 2004. (Id., 37.) However, SCO
has
distorted the substance of these statements. In particular, Novells June and
August 2003
statements cannot reasonably be read as asserting copyright ownership as an
objective fact. Thus,
SCO should be barred from relying on these statements at trial to support its
slander of title claim.1
I. SCO MUST PROVE THAT NOVELLS STATEMENTS CAN REASONABLY BE
INTERPRETED AS FACTUAL ASSERTIONS OF COPYRIGHT OWNERSHIP
Slander of title requires publication of a false statement disparaging
claimants title.
First Sec. Bank of Utah v. Banberry Crossing, 780 P.2d 1253, 1256-67 (Utah
1989). Whether a
statement is reasonably capable of a wrongful meaning is a question of law for
the Court. West
v. Thomson Newspapers, 872 P.2d 999, 1008 (Utah 1994). A court must carefully
examine the
context in which the statement was made, and cannot make this determination by
viewing
individual words in isolation. Id. at 1009. A statement is not actionable if
the context makes
clear that the speaker is expressing a subjective view or interpretation,
rather than claiming
to be in possession of objectively verifiable facts. Haynes v. Alfred A. Knopf,
Inc., 8 F.3d 1222,
1227 (7th Cir. 1993); see West, 872 P.2d at 1018-20 (view that politician
misrepresented position
to get elected was non-actionable opinion based on inference from true
facts).2
1
II. NOVELLS JUNE 6, 2003 LETTER AND PRESS RELEASE DID NOT
ASSERT THAT NOVELL OWNS THE UNIX COPYRIGHTS
SCOs complaint alleges that Novells June 6, 2003, letter call[ed] SCOs
claims of
copyright ownership absurd and unsubstantiated. (Dkt. No. 96,
37(d)(emphasis added).)
This is incorrect. Novell did not refer to SCOs claims of copyright
ownership. Rather,
Novell stated: Your letter contains absurd and unfounded accusations against
Novell and
others. (Ex. 5A.) The cited SCO letter accused Novell of (1)
maliciouslyintend[ing] to
harm SCOs share value; (2) timing a press release to coincide with [SCOs]
earnings
announcement; and (3) deceptive conduct to depress SCOs stock price in
violation of the
Federal securities law. (Ex. 5B.) Calling these accusations absurd is not a
denial of SCOs
ownership claim, especially since Novells attached press release stated that
Amendment #2
appears to support SCOs claim. (Ex. 5A.) Novells letter cannot reasonably be
read as
asserting that SCO did not own the copyrights, and cannot be relied on to prove
slander of title.3
III. NOVELLS JUNE 26, 2003 LETTER DID NOT ASSERT THAT NOVELL
OWNS THE UNIX COPYRIGHTS
SCO asserts that Novells June 26, 2003, letter to SCO called SCOs claims of
ownership of UNIX and UnixWare 'simply wrong. (Dkt. No. 96, 37(e).) This is
another
distortion. Novell said that SCOs statements are wrong, referring to SCOs
assertion that it
owns all of the intellectual property rights associated with UNIX and
UnixWare, including
the patents and other rights. (Ex. 5C (emphasis added).) Novell explained that
there was no
evidence that SCO owns all of the patents associated with UNIX and UnixWare.
(Id.) Novell
was correct. SCO does not own the UNIX patents, as SCOs witnesses have
admitted.4
Thus,
SCO cannot own all UNIX intellectual property, including patents. Novells
further comment
that Amendment No. 2 raises as many questions as it answers (id.), is a true
statement that the
amendment is unclear. See The SCO Group, Inc. v. Novell, Inc., 578 F.3d 1201,
1215 (10th Cir.
2009) (the language of Amendment No. 2 concerning the transfer of copyrights is
ambiguous).
IV. NOVELLS AUGUST 4, 2003 LETTER DID NOT ASSERT THAT
NOVELL OWNS THE UNIX COPYRIGHTS
SCO cites the statement in Novells August 4, 2003, letter that Novell disputes
SCOs
claim to ownership of these copyrights. (Dkt. No. 96, 37(f).) But the only
fact asserted is
that Novell disputes SCOs claim, which is correct. And SCO ignores the rest
of the letter,
which explains that (1) the APA excluded copyrights from the transfer; (2) the
Amendment No.
2 exception is limited to copyrights required for Santa Cruz Operation to
exercise APA rights;
and (3) [u]nless and until SCO is able to establish that some particular
copyright is required
for SCO to exercise its rights under the APA, SCOs claim to ownership of any
copyrights in
UNIX technology must be rejected. (Ex. 5D.)
All of these points are correct. The Tenth Circuit held that the APA, by
itself,
unambiguously excludes the transfer of copyrights. The SCO Group, 578 F.3d at
1210. It also
found that whether the copyrights transferred because they were required to
exercise APA
rights presents a triable issue that could legitimately be resolved in favor of
either party. Id. at
1215-19. Novells statement of its subjective view on a legitimate dispute is
not actionable.
________________
1 Novells Motions In Limine Nos. 6 to 8 concern Novells statements in
December 2003 and
early 2004; application of common law privileges to Novells statements; and
Novells
statements in copyright applications. As noted in Motions In Limine Nos. 6 and
7, Novells June
and August 2003 statements were in private letters to SCO and thus cannot be
potentially
actionable until Novell later published them on its website, with copies of the
parties other
related correspondence.
2 See also Mast v. Overson, 971 P.2d 928, 932-33 (Utah Ct. App. 1998)
(statements not
defamatory as a matter of law when made in ongoing heated debate in reply to
plaintiffs
public assertions of wrongdoing); Jefferson County Sch. Dist. No. R-I v.
Moodys Investors
Servs., 175 F.3d 848, 855-57 (10th Cir. 1999) (negative outlook bond rating
too subjective to
state claim for injurious falsehood).
3 Oddly, SCOs complaint cites Novells statement that Amendment #2 appears
to support
SCOs ownership claim as a wrongful assertion by Novell of ownership rights in
UNIX.
(Dkt. No. 96, 37(c).) This makes no sense. The plain meaning is to the
contrary.
4
See Novells 4/20/2007 Sum. Jgt. Mot., Dkt. No. 276 at 23 & n. 7 (citing
evidence that two
SCO witnesses admitted that the APAs exclusion of all patents meant that SCO
did not own
UNIX patents). SCO did not dispute this point in its opposition. (See Dkt. No.
325.)
Novell's #6, 651 [PDF]:NOVELL'S 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.
INTRODUCTION
SCO's slander of title claim
points to various statements that allegedly assert that "Novell,
and not
SCO, owns the UNIX and UnixWare copyrights." (Dkt. No. 96, 91, 37.)
Novell
demonstrated in its Motion In Limine No. 5 that SCO should be barred
from relying on Novell's
June and August 2003 statements because they cannot
reasonably be read as asserting copyright
ownership as an objective fact.
Novell hereby moves to bar SCO from relying on Novell's later
statements in
December 2003 and March 2004 because they merely reiterate Novell's
subjective
opinion that Novell owns the copyrights, and are thus not
actionable
as a matter of law.
I. SCO MUST PROVE THAT NOVELL'S STATEMENTS
CAN REASONABLY BE INTERPRETED AS FACTUAL ASSERTIONS OF COPYRIGHT
OWNERSHIP
Slander of title requires a false statement "disparaging
claimant's title." First Sec. Bank
of Utah v. Banberry Crossing, 780 P.2d
1253, 1256-67 (Utah 1989). Whether a statement is
reasonably capable of a
wrongful meaning is an issue of law for the Court. West v.
Thomson
Newspapers, 872 P.2d 999, 1008 (Utah 1994). A court "must carefully
examine the context in
which the statement was made."1 Id. at 1009. A statement is not actionable
if the context makes
clear that "the speaker is expressing a subjective
view" or "interpretation," rather than "claiming
to be in possession of
objectively verifiable facts." Haynes v. Alfred A. Knopf, Inc., 8 F.3d
1222,
1227 (7th Cir. 1993). Thus, the Utah Supreme Court held that an
implied charge that a
politician lied to get elected was not actionable as a
matter of law because it was an inference
based on the undisputed fact that
he had changed his position on a key issue after being elected.
West, 872
P.2d at 1018-20; see also Mast v. Overson, 971 P.2d 928, 934 (Utah Ct. App.
1998)
(statements not defamatory when replied to "assertions of wrongdoing"
in "spirited public
1
debate"); Jefferson
County Sch. Dist. No. R-I v. Moody's Investor's Servs., 175 F.3d 848,
855-57
(10th Cir. 1999) ("negative outlook" rating too subjective to state
injurious falsehood claim);
Partington v. Bugliosi, 56 F.3d 1147, 1153-54
(9th Cir. 1995) (account of controversial criminal
trials not actionable
because rational interpretation and opinion
about ambiguous subject).
II.
NOVELL'S DECEMBER 2003 STATEMENT IS A SUBJECTIVE OPINION ON A
LEGITIMATE DISPUTE
BASED ON ITS PRIOR STATEMENTS
SCO's complaint relies on Novell's press
release dated December 22, 2003.2 (Dkt.
No.
96, 37(i).) The full text of that press release is as follows (Ex. 6A
(emphasis added)):
Novell believes it owns the copyrights in
UNIX, and has applied for and received
copyright registrations pertaining to
UNIX consistent with that position. Novell
detailed the basis for its
ownership position in correspondence with SCO. Copies
of our correspondence,
and SCO's reply, are available here. Contrary to SCO's
public
statements, as demonstrated by this correspondence, SCO has been well
aware
that Novell continues to assert ownership of the
UNIX
copyrights.
The clear import of this statement is that Novell
"believes" it owns the copyrights for the
reasons "detailed" in its prior
correspondence with SCO, copies of which are available on
Novell's website,
with SCO's reply.3 This is Novell's
subjective view on a disputed legal issue
that the Tenth Circuit found
"could legitimately be resolved in favor of either party." See The
SCO
Group, Inc. v. Novell, Inc., 578 F.3d 1201, 1215 (10th Cir. 2009) (further
noting that the
"language of Amendment No. 2 concerning the transfer of
copyrights is
ambiguous").
Novell's statement that it "continues to assert"
ownership confirms the subjective nature
of Novell's belief. This is the
language of argument, not objective
fact. This argumentative tone
2
is reinforced by Novell's
concurrent publication of SCO's reply of September 10, 2003, asserting
that
SCO "disagree[s] with [Novell's] analysis and conclusions," and that Novell's
interpretation
"ignores certain provisions of the relevant documents and
does not consider the agreements
between Novell and SCO as a whole." (Ex.
6B.) Novell's publication of its June 26 and August
4, 2003 letters also did
not constitute a statement of copyright ownership because Novell's
June
letter did not claim ownership and its August letter merely expressed
the qualified opinion that
SCO did not own the copyrights "unless and until"
SCO could show that a particular copyright
was "required" to exercise APA
rights. (Id.; see Novell's Motion In
Limine No. 5, at 3.)
III. NOVELL'S
MARCH 2004 TRADE SHOW REMARKS MERELY REPEAT NOVELL'S PRIOR OPINION
SCO's
complaint alleges: "At the March 2004 Open Source Business Conference in
San
Francisco, Novell's Vice Chairman Chris Stone proclaimed during his
keynote address that
Novell 'still own[s] UNIX.'" (Dkt. No. 96, 37(k).)
SCO has relied on a transcript it prepared
of a CNET broadcast, which states
(Ex. 6C at 5):
"Sorry Darl, again. Al Gore didn't invent the
Internet and you didn't invent
Linux or intellectual property law. We still
own Unix. And we believe, that Unix
is not in Linux, and that Linux is a
free, and is an open distribution, and should be.
And always will
be."
Here, the context is dispositive. SCO had filed this suit
against Novell two months
earlier. (Dkt. No. 1. 1/20/2004 Complaint.) This
was an "Open Source" conference for the
Linux community that was the target
of SCO's threats and was thus already aware of the
Novell/SCO dispute and
massive related media coverage. (See Novell's Motion In Limine No. 3
and
Exs. 3B to 3S.) Thus, the context "informed the reader/listener that the
statements were
merely another installment in the continuing heated debate."
See Mast, 971 P.2d at 933. The
only reasonable interpretation is that Mr.
Stone was repeating Novell's subjective view that it
owned the copyrights
for the reasons in its letters, which is not actionable as a matter of
law.
3
1 West held that a
charge of "manipulat[ing]" the press was not defamatory in the context of
a
"heated political battle" and in view of its "casual, albeit critical"
tone, which most readers
would view as "exaggerated commentary." Id. at
1009-10. The Utah Supreme Court recently
emphasized that West requires "a
context-driven assessment" of whether a statement is
reasonably susceptible
to a defamatory meaning, which requires the court to "weigh
competing definitions and make sense of context," and thus "leaves no room for indulging inferences in favor of the nonmoving party." O'Connor v. Burningham, 165 P.3d 1214, 1221-22 (Utah 2007).
2 SCO's complaint also alleges that Novell stated in a
January 13, 2004 press release that Novell
"retained ownership of [UNIX]
copyrights." (Dkt. No. 96, 37(j).) SCO has not designated any
press
release with this statement as a trial exhibit, and thus cannot
rely on any such
statement.
3 Novell's December 22, 2003 press
release and the related correspondence is available
at
http://www.novell.com/
news/press/archive/2003/12/pr03080.html. Clicking
the "here"
hyperlink in the press release brings up copies of Novell's
letters to SCO of June 26 and August
4, 2003, and SCO's reply of September
10, 2003. (See Ex. 6B.)
Novell's # 7, 633 [PDF]:
NOVELLS MOTION IN LIMINE
NO. 7 TO DETERMINE THAT
COMMON LAW PRIVILEGES
APPLY TO ALLEGEDLY
DEFAMATORY PUBLICATIONS
SCO alleges that Novell slandered SCOs title to certain copyrights by asserting
that
Novell, and not SCO, owns those copyrights. (Dkt. 96 at 91.) According to SCO,
Novell
published that allegedly defamatory matter in: (1) a public letter dated May 28,
2003; (2) private
correspondence sent to SCO in June and August 2003; (3) copyright applications
submitted to
the United States Copyright Office in September and October 2003; and (4)
various other public
announcements, including a December 22, 2003 press release that republished
hitherto private
correspondence with SCO. (Id. at 37.) By this motion, Novell seeks rulings in
limine that (a)
its private correspondence to SCO is not actionable because it is protected by
the common law
litigation privilege; and (b) its broader publications are not actionable unless
SCO can prove that
Novell acted solely out of malice or bad faith because they are subject to the
recipients and rival
claimants privileges.1
I. ARGUMENT
All of Novells allegedly defamatory publications were made after SCO sent
demand
letters to Novell and to 1,500 other companies, in which SCO published its own
claim that it
owned the copyrights at issue in this case and demanded that the recipients pay
for licenses.2
(Dkt. 121 at 52.) Under these circumstances, a rule imposing liability on
Novell for disputing
SCOs ownership would be unfair both to Novell and to the third parties from
whom SCO wants
to extract licensing fees, and it is not the law. Slander of title requires a
false statement made
without privilege, Dowse v. Doris Trust Co., 116 Utah 106, 110-11, 208 P.2d
956 (1949), and
Novells publications were privileged.
Novells publication of its ownership claim in private pre-litigation
correspondence to
SCO, responding to SCOs demand letter, is protected by the litigation
privilege, which is
1
absolute. See Price v. Armour, 949 P.2d 1251, 1256 (Utah 1997) (quoting
Restatement (Second)
of Torts [Rest.] 587) (A party to a private litigation is absolutely
privileged to publish
defamatory matter in communications preliminary to a proposed judicial
proceeding if the
matter has some relation to the proceeding).3
Novells broader publications, in turn, are protected by two other, conditional
privileges.
First, [t]he law has long recognized that a publication is conditionally
privileged if made to
protect a legitimate interest of the recipient. Brehany v. Nordstrom, 812
P.2d 49, 59 (Utah
1991) (citing, inter alia, Rest. 595); see also Rest. 646A (privilege
applies to slander of
title).4 Second, a further privilege applies specifically to a rivals
publication of its claim to
property (including intangible property). Rest. 647; see also id. cmt. b
(privilege is applicable
to injurious falsehood); Jack B. Companies v. Nield, 751 P.2d 1131, 1134
(Utah 1988)
(slander of title is injurious falsehood). Novell seeks in limine rulings
that its public
disclosures are covered by both privileges. See OConnor v. Burningham, 165 P.3d
1214, 1224
(Utah 2007) (Whether a statement is entitled to the protection of a conditional
privilege presents
a question of law; whether the holder of the privilege lost it due to abuse
presents a question of
fact). Taking them in order, the other recipients of Novells publicationsto
whom SCO also
sent demand lettershave a legitimate interest in ascertaining the true
ownership of the
copyrights SCO is threatening to sue them on, so the recipients privilege also
applies. See Rest.
2
595. And the rival claimants privilege applies, by definition, to any
assertion by Novell that it
owns the copyrights claimed by SCO.
SCO bears the burden of overcoming the conditional privileges by proof of
malice or
excessive publication. Brehany, 812 P.2d at 59. Novell also requests that the
Court rule in
limine that SCO cannot show excessive publication because it is suing Novell for
publishing to
precisely those third parties that have interest in the true ownership of the
copyrights, and any
publication to disinterested parties is irrelevant to SCOs supposed damages.
See Rest. 599
cmt. b (If the harm done by the abuse is severable, and can be distinguished
from the harm done
by a part of the publishers conduct that would properly be privileged, he is
subject to liability
only for the excess of harm resulting from his abuse); see generally OConnor,
165 P.3d at
1224 (the Restatements teachings on privilege enjoy close ties to common sense
and thus
appear worthy of our confidence). The only remaining issue that would leave for
the jury to
decide is whether Novell made those publications in bad faith, solely out of
ill-will, and with no
intent to protect the legitimate interests of the recipients. See Rest. 603
cmt. a. (if the
publication is made for the purpose of protecting the interest in question, the
fact that the
publication is inspired in part by resentment or indignation at the supposed
misconduct of the
person defamed does not constitute an abuse of the privilege); id. at 647
cmt. b (rival
claimants privilege permits the publisher to assert a claim provided that
the assertion is
honest and in good faith, even though his belief is neither correct nor
reasonable).
II. CONCLUSION
This Court should rule, in limine, that (1) Novells publication of its
ownership claim to
SCO is subject to the absolute litigation privilege; and (2) any broader
publication of that claim
is conditionally protected by the recipients interest and rival claimants
privileges.
___________________
1 A companion motion in limine (no. 8) addresses the Noerr-Pennington
privilege applicable to
Novells copyright applications.
2 SCO was also the first to go public, as more fully explained in Novells
motion in limine no. 3.
3 For convenient reference, Restatement sections cited herein are reproduced
in Exhibits 7A-7F
hereto. As SCO itself has elsewhere observed: Thus, for example, the sending of
a demand
letter, settlement letter, or a cease and desist letter is absolutely
privileged. SCOs Mem. Supp.
Mot. Summ. J. at 5, SCO Group, Inc. v. IBM, No. 2:03CV294 (D. Utah Sep. 25,
2006).
Arguably, this privilege also protects Novells publications to the broader
Linux community.
See Krouse v. Bower, 20 P.3d 895, 900 (Utah. 2001) (The excessive publication
rule, in the
context of judicial proceeding privilege cases, is to prevent abuse of the
privilege by publication
of defamatory statements to persons who have no connection to the judicial
proceeding).
4 Property interests are a legitimate interest within the ambit of the
recipients interest
privilege. See Rest. 595 cmt. d.
Novell's #8, 634:
NOVELL'S MOTION IN LIMINE
NO. 8 TO PRECLUDE SCO FROM
RELYING ON NOVELL'S
APPLICATIONS FOR COPYRIGHT
REGISTRATION
1
In paragraph 91 of its operative Second Amended Complaint (Dkt.
96), SCO alleges that "Novell ... slandered SCO's title ... to its
... copyrights," inter alia, "by making false oaths of ownership to
public officials." SCO has reference to declarations made by Novell
in support of applications for copyright registration that Novell
made to the United States Copyright Office, pursuant to 17 U.S.C.
409. By this motion, Novell seeks an order precluding SCO
from relying on Novell's applications to support its slander of
title claim. This motion is made pursuant to Federal Rule of
Evidence 105, and on the ground that Novell's applications are a
privileged exercise of its First Amendment right to petition the
Government.
I. ARGUMENT
The right "to petition the Government" is enshrined in the First
Amendment to the United States Constitution.
In recognition of this right, the United States Supreme
Court has held that ... organizations are immune from liability
under antitrust laws for actions constituting petitions to the
government. [Citations.] Over the years, courts have extended this
immunity doctrine, referred to as the Noerr-Pennington
Doctrine [citation], to "protect ... against tort claims as well as
antitrust claims." Searle v. Johnson, 646 P.2d 682, 684 (Utah
1982).
Anderson Devel. Co. v. Tobias, 2005 UT 36, 26, 116
P.3d 323, 332. "An exception to this immunity doctrine exists for
actions constituting a 'sham.'" Id. at 27, 116 P.3d
at 332. A "sham" petition, as opposed to a genuine petition, is one
that is both objectively baseless and subjectively made for an
improper purpose. See Professional Real Estate Inv., Inc. v.
Columbia Pictures Ind., Inc., 508 U.S. 49, 57, 113 S. Ct. 1920
(1993) ("an objectively reasonable effort to litigate cannot be
sham regardless of subjective intent").
"[T]he right to petition extends to all departments of the
Government," including "administrative agencies," California
Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510,
92 S. Ct. 609 (1972), such as the United States Copyright Office.
Novell was exercising
2
this right when it applied to register its
copyrights. Thus unless Novell's applications were a sham, no tort
liability can arise from them. See Anderson, 2005 UT at
26.
Judge Kimball granted Novell summary judgment on the copyrights
ownership issue. (Dkt. 377 at 62.) Although that grant was reversed
on appeal, the fact that Judge Kimball made it demonstrates that
Novell's assertions of ownership in support of its applications to
register those copyrights were not objectively baseless. See
Harris Custom Builders Inc. v. Hoffmeyer, 834 F. Supp. 256,
261-62 (N.D. Ill. 1993) ("An action that is well enough grounded,
factually and legally, to survive a motion for summary judgment is
sufficiently meritorious to lead a reasonable litigant to conclude
that they had some chance of success on the merits"). Moreover, the
Tenth Circuit has ruled:
If we were to interpret the contract based initially
only on the APA itselfwithout regard to Amendment No.
2we agree that its language unambiguously excludes the
transfer of copyrights. ... [] ... [T]he contractual language
of Amendment No. 2 concerning the transfer of copyrights is
ambiguous.
SCO Group, Inc. v. Novell, Inc., 578 F.3d 1201, 1210 (10th
Cir. 2009). The Tenth Circuit further observed: "Novell has
powerful arguments to support its version of the transaction."
Id. at 1215. Those determinations likewise conclusively
establish Novell's objective reasonableness.1 Thus the sham exception to the
petitioner's immunity does not apply, see Professional Real
Estate, 508 U.S. at 57 ("an objectively reasonable effort ...
cannot be sham"), and the First Amendment bars SCO from relying on
Novell's privileged applications to support its slander of title
claim.
Here in the Tenth Circuit there is a wrinkle. The Tenth Circuit
has stated that outside the antitrust context, "the Petition Clause
protects objectively reasonable lawsuits from being enjoined, but
requires a court to look at the underlying statute to determine
whether the initiator
3
of the suit can be held liable." Cardtoons
v. Major League Baseball Players Ass'n, 208 F.3d 885, 890 n. 4
(10th Cir. 2000) (en banc). However, that statement "is dicta," and
"[n]umerous other courts have ... held that the Petition Clause
places limits on liability for the commission of a range of common
law torts." Scott v. Hern, 216 F.3d 897, 914 & n. 9
(10th Cir. 2000) (citing cases); see also Sosa v. DirecTV,
Inc., 437 F.3d 923, 938 (9th Cir. 2006) ("we are doubtful that
... Cardtoons survives the Supreme Court's decision" in BE &
K Construction Co. v. NLRB, 536 U.S. 516, 525, 122 S. Ct. 2390
(2002)). Even if this Court were to apply the criticized dicta from
Cardtoons, the Utah Supreme Court is the final authority on "the
underlying statute" (viz., Utah defamation law) to which Cardtoons
says the Court should look "to determine whether the initiator ...
can be held liable," and the Utah Supreme Court has apparently
recognized that the petitioner's immunity and correlative sham
analysis applies to all Utah torts. See Anderson, 2005 UT at
26, 116 P.3d at 332; see also Scott, 216 F.3d at 915
(finding Cardtoons dicta inapposite where Colorado courts had
already "articulated an objectively-reasonable-litigation standard"
for state law tort).
II. CONCLUSION
Because Novell's constitutionally-protected applications for
copyright registration cannot give rise to tort liability, SCO
cannot rely on them to support its slander of title claim.
________________
In a companion motion in limine (no. 4), Novell demonstrates at
greater length that its objective reasonableness is law of the
case.
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| Authored by: Anonymous on Tuesday, February 09 2010 @ 11:06 PM EST |
| wow 1st in [ Reply to This | # ]
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| Authored by: bugstomper on Tuesday, February 09 2010 @ 11:08 PM EST |
Please put error->correction or s/error/correction/ summary in Title
[ Reply to This | # ]
|
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| Authored by: bugstomper on Tuesday, February 09 2010 @ 11:10 PM EST |
Please stay off topic and use HTML for clickable links
[ Reply to This | # ]
|
| |
| Authored by: bugstomper on Tuesday, February 09 2010 @ 11:12 PM EST |
Please put the title of the News Pick in the Title bar and use HTML clickable
links[ Reply to This | # ]
|
| |
| Authored by: bugstomper on Tuesday, February 09 2010 @ 11:14 PM EST |
Keep those COMES contributions coming. Use this thread to collect them.
[ Reply to This | # ]
|
- PX05521-PX05536 - Authored by: achurch on Wednesday, February 10 2010 @ 05:50 AM EST
- PX1006 - Authored by: Anonymous on Wednesday, February 10 2010 @ 09:00 PM EST
| |
| Authored by: bugstomper on Tuesday, February 09 2010 @ 11:45 PM EST |
| NOVELL'S OBJECTIONS TO SCO'S SECOND AMENDED SUPPLEMENTAL RULE 26(a)(3)
PRETRIAL DISCLOSURES
INTRODUCTION
Pursuant to Federal Rule of
Civil Procedure 26(a)(3), Novell responds to SCO's Second
Amended
Supplemental Rule 26(a)(3) Pretrial Disclosures (Dkt. 625) as follows:
Novell
re-asserts and incorporates herein by reference the objections to SCO's
trial
exhibits stated in Novell's August 31, 2007 Objections to SCO's Rule
26 Disclosure (Dkt. 429).
As set forth in Exhibit A attached hereto, Novell
also objects to the admissibility of certain
additional exhibits identified
in SCO's Second Amended Supplemental Rule 26(a)(3) Pretrial
Disclosures.
Novell notes that SCO has identified as an exhibit "All declarations the parties
have
filed in this case and all exhibits
to those declarations." Novell reserves the right to object to
specific
declarations and exhibits should SCO seek to admit them at trial.
[ Reply to This | # ]
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| Authored by: ChrisP on Wednesday, February 10 2010 @ 12:47 AM EST |
PJ
I wonder, would it be possible to have three stories for these motions, say 1
for the Daubert motions, 1 for the parol evidence witness exclusions and a third
for the remainder? It could make related motions and their comments easier to
find and keep the story sizes more manageable.
---
SCO^WM$^WIBM^W, oh bother, no-one paid me to say this.[ Reply to This | # ]
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| Authored by: bugstomper on Wednesday, February 10 2010 @ 12:49 AM EST |
| NOVELL'S 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 AND
RELATED
COUNTERCLAIMS.
INTRODUCTION
Judge Kimball held, as a
matter of law, that Novell's statements regarding ownership of
the UNIX
copyrights were based on Novell's "good faith interpretation" of the contracts
and
were not "objectively unreasonable." SCO did not appeal -- and the Tenth
Circuit did not
reverse -- these rulings. Therefore, the law of the case and
the mandate rule preclude SCO from
presenting any evidence or argument
contrary to these rulings.
I. UNDISPUTED FACTS
SCO asserted in its
Second Amended Complaint that Novell breached the implied
covenant of good
faith by "numerous acts of bad faith," including "making false and
misleading
statements denying SCO's ownership of the copyrights in UNIX and
UnixWare." (Second Am.
Compl. 99, Dkt. No. 96.) SCO also asserted that
Novell engaged in "unfair competition" by
"falsely claim[ing] ownership of
SCO's copyrights in UNIX and
UnixWare." (Id. 122.)1
In April 2007, Novell moved for summary
judgment on SCO's breach of contract and
unfair competition claims.
(Novell's Mot. for Partial Summ. J., Dkt. No. 272.) SCO argued in
its
Opposition that the implied covenant can be breached by "objectively
unreasonable conduct,"
and that SCO's other concurrent motions and evidence
showed that "Novell's statements were
false and Novell knew it." (SCO's Mem.
in Opp'n at 18-19, Dkt. No. 299.) Novell replied that
the implied covenant
did not "prohibit[] a party from making statements about its
understanding
of contractual rights," and that Novell's statements were not
false for the reasons in its
concurrent motions. (Reply ISO Novell's Mot.
for Partial Summ. J. at
15-16, Dkt No. 332.)
In August 2007, Judge Kimball
granted summary judgment for Novell on SCO's unfair
competition and contract
claims on several grounds. (Order at 63-65, 102, Dkt. No. 377.)
Judge
Kimball ruled that even if SCO owned the copyrights, Novell would be
entitled to summary
judgment on unfair competition because "there is no
evidence that Novell's public statements
1
SCO's contract and unfair competition claims include
other theories not at issue in this motion;
references to these claims
herein are limited to the "false assertion
of copyright ownership"
claim.
1
were based on anything but its good faith
interpretation of the contracts." (Id. at 64.) He also
held that breach of
the implied covenant requires "objectively unreasonable conduct," and
that
"there is no evidence to demonstrate that Novell's position was
contrary to its own understanding
of the contractual language or objectively
unreasonable...." (Id. at
65.)
In November 2008, Judge Kimball entered a
final judgment dismissing SCO's unfair
competition and contract claims (as
well as other claims) per his prior rulings. (Final Judgment
at 1, Dkt. No.
565.) SCO appealed other rulings, but did not challenge the dismissal of
its
contract and unfair competition claims or the ruling that SCO failed to
present evidence that
Novell lacked an objectively reasonable, good faith
basis for stating that SCO did not own the
copyrights.2The Tenth Circuit did not reverse that
ruling; on the contrary, it held that Novell
had "powerful arguments" to
support its position on copyright ownership, and that this issue
presented
"ambiguities" that "could legitimately be resolved in favor of either party."
SCO
Group, Inc. v. Novell, Inc., 578 F.3d 1201, 1215 (10th Cir.
2009).
II. THE LAW OF THE CASE AND THE MANDATE RULE BAR SCO FROM
DISPUTING THAT NOVELL'S STATEMENTS WERE REASONABLE.
The law of the case
doctrine bars relitigation of "issues previously decided, either
explicitly
or by necessary implication." Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1183
(10th
Cir. 1995) (citation omitted).3This doctrine precludes relitigation of
issues decided for one
claim that are relevant to a different claim. See St.
Paul Fire &
Marine Ins. Co. v. Heath
2 Copies of SCO's appellate briefs, as well as Judge
Kimball's summary judgment ruling and
the Tenth Circuit decision, were
included with Novell's Motion In Limine No. 1. SCO's
appellate briefs did
not even mention Judge Kimball's determination that Novell had a
reasonable,
good faith basis for its statements.
3 See
Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810 F.2d 243, 250-251
(D.C.
Cir. 1987) ("legal decision made at one stage of litigation,
unchallenged in a subsequent appeal
when the opportunity to do so existed,
becomes the law of the case for future stages of the same
litigation, and
the parties are deemed to have waived the right to challenge that decision at a
later
time").
2
Fielding Ins. Broking Ltd., No. 91
Civ. 0748 (MJL), 1995 U.S. Dist. LEXIS 19847, at *30-35
(S.D.N.Y. Dec. 30,
1995) (Ex. 4A) (law of the case bars negligent misrepresentation claim
in
view of prior dismissal of negligence claim). It applies to an alternate
ground for a ruling,
United States v. Sanchez, 35 F.3d 673, 678 (2d Cir.
1994), as well as to a ruling that the evidence
is legally insufficient to
support a claim. Rohrbaugh, 53 F.3d at 1183 (applying law of case to
ruling
that evidence was legally insufficient to show that plaintiff was a foreseeable
buyer whom
defendant had a duty to warn). This doctrine is subject to three
"exceptionally narrow"
exceptions for (1) substantially different evidence
in a later trial; (2) intervening change in
controlling legal authority; or
(3) a clearly erroneous decision whose application would work a
manifest
injustice. United States v. Alvarez, 142 F.3d 1243, 1247
(10th Cir. 1998).
4
Here, Judge Kimball dismissed SCO's
contract and unfair competition claims based on
his ruling that SCO
presented no evidence that Novell lacked an objectively reasonable,
good
faith basis for its statements regarding copyright ownership. SCO could
have appealed this
ruling, but failed to do so. None of the narrow
exceptions apply. Therefore, Judge Kimball's
ruling is binding law of the
case that bars SCO from relitigating this
ruling.
The mandate rule requires
the same result. As this Court held in denying Novell's Rule
60(b) motion,
"the mandate rule prevents a court from considering an argument that could
have
been, but was not, made on appeal." (Order at 3, Dkt. No. 620.) SCO
could have argued on
appeal that it had presented evidence that Novell
lacked a good faith basis for its statements.
SCO did not make this
argument. Therefore, the Court should preclude SCO from presenting
any
evidence or argument that Novell did not have an objectively reasonable, good
faith basis for
its statements regarding copyright
ownership.
4 See also United States
v. Alexander, 106 F.3d 874, 878 (9th Cir. 1997) (district court's failure
to
apply law of the case to previous ruling constituted abuse of discretion where
none of the
exceptions were met); Thomas v. Bible, 983 F.2d 152, 155 (9th
Cir. 1993) (same).
3
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| Authored by: Anonymous on Wednesday, February 10 2010 @ 01:07 AM EST |
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
THE SCO GROUP, INC., a Delaware
corporation,
Plaintiff,
vs.
NOVELL, INC., a Delaware corporation,
Defendant.
Case No. 2:04CV00139
NOVELLS MOTION IN LIMINE
NO. 5 TO PRECLUDE SCO FROM
RELYING ON NOVELLS JUNE
AND AUGUST 2003 STATEMENTS
AS FACTUAL ASSERTIONS OF
COPYRIGHT OWNERSHIP
AND RELATED COUNTERCLAIMS.
SCO claims that Novell slandered its title by asserting that Novell, and not
SCO, owns the
UNIX and UnixWare copyrights. (Dkt. No. 96, 91.) SCOs complaint points to
statements
allegedly made by Novell from May 2003 to March 2004. (Id., 37.) However, SCO
has
distorted the substance of these statements. In particular, Novells June and
August 2003
statements cannot reasonably be read as asserting copyright ownership as an
objective fact. Thus,
SCO should be barred from relying on these statements at trial to support its
slander of title claim.[1]
I. SCO MUST PROVE THAT NOVELLS STATEMENTS CAN REASONABLY BE
INTERPRETED AS FACTUAL ASSERTIONS OF COPYRIGHT OWNERSHIP
Slander of title requires publication of a false statement disparaging
claimants title.
First Sec. Bank of Utah v. Banberry Crossing, 780 P.2d 1253, 1256-67 (Utah
1989). Whether a
statement is reasonably capable of a wrongful meaning is a question of law for
the Court. West
v. Thomson Newspapers, 872 P.2d 999, 1008 (Utah 1994). A court must carefully
examine the
context in which the statement was made, and cannot make this determination by
viewing
individual words in isolation. Id. at 1009. A statement is not actionable if
the context makes
clear that the speaker is expressing a subjective view or interpretation,
rather than claiming
to be in possession of objectively verifiable facts. Haynes v. Alfred A. Knopf,
Inc., 8 F.3d 1222,
1227 (7th Cir. 1993); see West, 872 P.2d at 1018-20 (view that politician
misrepresented position
to get elected was non-actionable opinion based on inference from true
facts).[2]
II. NOVELLS JUNE 6, 2003 LETTER AND PRESS RELEASE DID NOT
ASSERT THAT NOVELL OWNS THE UNIX COPYRIGHTS
SCOs complaint alleges that Novells June 6, 2003, letter call[ed] SCOs
claims of
copyright ownership absurd and unsubstantiated. (Dkt. No. 96,
37(d)(emphasis added).)
This is incorrect. Novell did not refer to SCOs claims of copyright
ownership. Rather,
Novell stated: Your letter contains absurd and unfounded accusations against
Novell and
others. (Ex. 5A.) The cited SCO letter accused Novell of (1)
maliciouslyintend[ing] to
harm SCOs share value; (2) timing a press release to coincide with [SCOs]
earnings
announcement; and (3) deceptive conduct to depress SCOs stock price in
violation of the
Federal securities law. (Ex. 5B.) Calling these accusations absurd is not a
denial of SCOs
ownership claim, especially since Novells attached press release stated that
Amendment #2
appears to support SCOs claim. (Ex. 5A.) Novells letter cannot reasonably be
read as
asserting that SCO did not own the copyrights, and cannot be relied on to prove
slander of title.[3]
III. NOVELLS JUNE 26, 2003 LETTER DID NOT ASSERT THAT NOVELL
OWNS THE UNIX COPYRIGHTS
SCO asserts that Novells June 26, 2003, letter to SCO called SCOs claims of
ownership of UNIX and UnixWare simply wrong. (Dkt. No. 96, 37(e).) This is
another
distortion. Novell said that SCOs statements are wrong, referring to SCOs
assertion that it
owns all of the intellectual property rights associated with UNIX and
UnixWare, including
the patents and other rights. (Ex. 5C (emphasis added).) Novell explained that
there was no
evidence that SCO owns all of the patents associated with UNIX and UnixWare.
(Id.) Novell
was correct. SCO does not own the UNIX patents, as SCOs witnesses have
admitted.[4] Thus,
SCO cannot own all UNIX intellectual property, including patents. Novells
further comment
that Amendment No. 2 raises as many questions as it answers (id.), is a true
statement that the
amendment is unclear. See The SCO Group, Inc. v. Novell, Inc., 578 F.3d 1201,
1215 (10th Cir.
2009) (the language of Amendment No. 2 concerning the transfer of copyrights is
ambiguous).
IV. NOVELLS AUGUST 4, 2003 LETTER DID NOT ASSERT THAT
NOVELL OWNS THE UNIX COPYRIGHTS
SCO cites the statement in Novells August 4, 2003, letter that Novell disputes
SCOs
claim to ownership of these copyrights. (Dkt. No. 96, 37(f).) But the only
fact asserted is
that Novell disputes SCOs claim, which is correct. And SCO ignores the rest
of the letter,
which explains that (1) the APA excluded copyrights from the transfer; (2) the
Amendment No.
2 exception is limited to copyrights required for Santa Cruz Operation to
exercise APA rights;
and (3) [u]nless and until SCO is able to establish that some particular
copyright is required
for SCO to exercise its rights under the APA, SCOs claim to ownership of any
copyrights in
UNIX technology must be rejected. (Ex. 5D.)
All of these points are correct. The Tenth Circuit held that the APA, by
itself,
unambiguously excludes the transfer of copyrights. The SCO Group, 578 F.3d at
1210. It also
found that whether the copyrights transferred because they were required to
exercise APA
rights presents a triable issue that could legitimately be resolved in favor of
either party. Id. at
1215-19. Novells statement of its subjective view on a legitimate dispute is
not actionable.
DATED: February 8, 2010 Respectfully submitted,
By: /s/ Sterling A. Brennan
WORKMAN NYDEGGER
MORRISON & FOERSTER LLP
Attorneys for Defendant and
Counterclaim-Plaintiff Novell, Inc.
[1] Novells Motions In Limine Nos. 6 to 8 concern Novells statements in
December 2003 and
early 2004; application of common law privileges to Novells statements; and
Novells
statements in copyright applications. As noted in Motions In Limine Nos. 6 and
7, Novells June
and August 2003 statements were in private letters to SCO and thus cannot be
potentially
actionable until Novell later published them on its website, with copies of the
parties other
related correspondence.
[2] See also Mast v. Overson, 971 P.2d 928, 932-33 (Utah Ct. App. 1998)
(statements not
defamatory as a matter of law when made in ongoing heated debate in reply to
plaintiffs
public assertions of wrongdoing); Jefferson County Sch. Dist. No. R-1 v.
Moodys Investors
Servs., 175 F.3d 848, 855-57 (10th Cir. 1999) (negative outlook bond rating
too subjective to
state claim for injurious falsehood).
[3] Oddly, SCOs complaint cites Novells statement that Amendment #2 appears
to support
SCOs ownership claim as a wrongful assertion by Novell of ownership rights in
UNIX.
(Dkt. No. 96, 37(c).) This makes no sense. The plain meaning is to the
contrary.
[4] See Novells 4/20/2007 Sum. Jgt. Mot., Dkt. No. 276 at 23 & n. 7 (citing
evidence that two
SCO witnesses admitted that the APAs exclusion of all patents meant that SCO
did not own
UNIX patents). SCO did not dispute this point in its opposition. (See Dkt. No.
325.)
[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, February 10 2010 @ 01:23 AM EST |
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
THE SCO GROUP, INC., a Delaware
corporation,
Plaintiff,
vs.
NOVELL, INC., a Delaware corporation,
Defendant.
Case No. 2:04CV00139
NOVELLS MOTION IN LIMINE
NO. 7 TO DETERMINE THAT
COMMON LAW PRIVILEGES
APPLY TO ALLEGEDLY
DEFAMATORY PUBLICATIONS
SCO alleges that Novell slandered SCOs title to certain copyrights by asserting
that
Novell, and not SCO, owns those copyrights. (Dkt. 96 at 91.) According to SCO,
Novell
published that allegedly defamatory matter in: (1) a public letter dated May 28,
2003; (2) private
correspondence sent to SCO in June and August 2003; (3) copyright applications
submitted to
the United States Copyright Office in September and October 2003; and (4)
various other public
announcements, including a December 22, 2003 press release that republished
hitherto private
correspondence with SCO. (Id. at 37.) By this motion, Novell seeks rulings in
limine that (a)
its private correspondence to SCO is not actionable because it is protected by
the common law
litigation privilege; and (b) its broader publications are not actionable unless
SCO can prove that
Novell acted solely out of malice or bad faith because they are subject to the
recipients and rival
claimants privileges.[1]
I. ARGUMENT
All of Novells allegedly defamatory publications were made after SCO sent
demand
letters to Novell and to 1,500 other companies, in which SCO published its own
claim that it
owned the copyrights at issue in this case and demanded that the recipients pay
for licenses.[2]
(Dkt. 121 at 52.) Under these circumstances, a rule imposing liability on
Novell for disputing
SCOs ownership would be unfair both to Novell and to the third parties from
whom SCO wants
to extract licensing fees, and it is not the law. Slander of title requires a
false statement made
without privilege, Dowse v. Doris Trust Co., 116 Utah 106, 110-11, 208 P.2d
956 (1949), and
Novells publications were privileged.
Novells publication of its ownership claim in private pre-litigation
correspondence to
SCO, responding to SCOs demand letter, is protected by the litigation
privilege, which is
absolute. See Price v. Armour, 949 P.2d 1251, 1256 (Utah 1997) (quoting
Restatement (Second)
of Torts [Rest.] 587) (A party to a private litigation is absolutely
privileged to publish
defamatory matter in communications preliminary to a proposed judicial
proceeding if the
matter has some relation to the proceeding).[3]
Novells broader publications, in turn, are protected by two other, conditional
privileges.
First, [t]he law has long recognized that a publication is conditionally
privileged if made to
protect a legitimate interest of the recipient. Brehany v. Nordstrom, 812
P.2d 49, 59 (Utah
1991) (citing, inter alia, Rest. 595); see also Rest. 646A (privilege
applies to slander of
title).[4] Second, a further privilege applies specifically to a rivals
publication of its claim to
property (including intangible property). Rest. 647; see also id. cmt. b
(privilege is applicable
to injurious falsehood); Jack B. Companies v. Nield, 751 P.2d 1131, 1134
(Utah 1988)
(slander of title is injurious falsehood). Novell seeks in limine rulings
that its public
disclosures are covered by both privileges. See OConnor v. Burningham, 165 P.3d
1214, 1224
(Utah 2007) (Whether a statement is entitled to the protection of a conditional
privilege presents
a question of law; whether the holder of the privilege lost it due to abuse
presents a question of
fact). Taking them in order, the other recipients of Novells publicationsto
whom SCO also
sent demand lettershave a legitimate interest in ascertaining the true
ownership of the
copyrights SCO is threatening to sue them on, so the recipients privilege also
applies. See Rest.
595. And the rival claimants privilege applies, by definition, to any
assertion by Novell that it
owns the copyrights claimed by SCO.
SCO bears the burden of overcoming the conditional privileges by proof of
malice or
excessive publication. Brehany, 812 P.2d at 59. Novell also requests that the
Court rule in
limine that SCO cannot show excessive publication because it is suing Novell for
publishing to
precisely those third parties that have interest in the true ownership of the
copyrights, and any
publication to disinterested parties is irrelevant to SCOs supposed damages.
See Rest. 599
cmt. b (If the harm done by the abuse is severable, and can be distinguished
from the harm done
by a part of the publishers conduct that would properly be privileged, he is
subject to liability
only for the excess of harm resulting from his abuse); see generally OConnor,
165 P.3d at
1224 (the Restatements teachings on privilege enjoy close ties to common sense
and thus
appear worthy of our confidence). The only remaining issue that would leave for
the jury to
decide is whether Novell made those publications in bad faith, solely out of
ill-will, and with no
intent to protect the legitimate interests of the recipients. See Rest. 603
cmt. a. (if the
publication is made for the purpose of protecting the interest in question, the
fact that the
publication is inspired in part by resentment or indignation at the supposed
misconduct of the
person defamed does not constitute an abuse of the privilege); id. at 647
cmt. b (rival
claimants privilege permits the publisher to assert a claim provided that
the assertion is
honest and in good faith, even though his belief is neither correct nor
reasonable).
II. CONCLUSION
This Court should rule, in limine, that (1) Novells publication of its
ownership claim to
SCO is subject to the absolute litigation privilege; and (2) any broader
publication of that claim
is conditionally protected by the recipients interest and rival claimants
privileges.
DATED: February 8, 2010 Respectfully submitted,
By: /s/ Sterling A. Brennan
WORKMAN NYDEGGER
MORRISON & FOERSTER LLP
Attorneys for Defendant and
Counterclaim-Plaintiff Novell, Inc.
[1] A companion motion in limine (no. 8) addresses the Noerr-Pennington
privilege applicable to
Novells copyright applications.
[2] SCO was also the first to go public, as more fully explained in Novells
motion in limine no. 3.
[3] For convenient reference, Restatement sections cited herein are reproduced
in Exhibits 7A-7F
hereto. As SCO itself has elsewhere observed: Thus, for example, the sending of
a demand
letter, settlement letter, or a cease and desist letter is absolutely
privileged. SCOs Mem. Supp.
Mot. Summ. J. at 5, SCO Group, Inc. v. IBM, No. 2:03CV294 (D. Utah Sep. 25,
2006).
Arguably, this privilege also protects Novells publications to the broader
Linux community.
See Krouse v. Bower, 20 P.3d 895, 900 (Utah. 2001) (The excessive publication
rule, in the
context of judicial proceeding privilege cases, is to prevent abuse of the
privilege by publication
of defamatory statements to persons who have no connection to the judicial
proceeding).
[4] Property interests are a legitimate interest within the ambit of the
recipients interest
privilege. See Rest. 595 cmt. d.
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| Authored by: bugstomper on Wednesday, February 10 2010 @ 01:32 AM EST |
| NOVELL'S MOTION IN LIMINE NO. 5 TO PRECLUDE SCO FROM RELYING ON NOVELL'S JUNE
AND AUGUST 2003 STATEMENTS AS FACTUAL ASSERTIONS OF COPYRIGHT OWNERSHIP AND
RELATED COUNTERCLAIMS.
INTRODUCTION
SCO claims that Novell
slandered its title by asserting that "Novell, and not SCO, owns the
UNIX
and UnixWare copyrights." (Dkt. No. 96, 91.) SCO's complaint points to
statements
allegedly made by Novell from May 2003 to March 2004.
(Id., 37.) However, SCO has
distorted the substance of these
statements. In particular, Novell's June and August 2003
statements cannot
reasonably be read as asserting copyright ownership as an objective fact.
Thus,
SCO should be barred from relying on these statements at trial
to
support its slander of title claim.
1
I. SCO MUST PROVE THAT NOVELL'S
STATEMENTS CAN REASONABLY BE
INTERPRETED AS FACTUAL ASSERTIONS OF COPYRIGHT
OWNERSHIP
Slander of title requires publication of a false statement
"disparaging claimant's title."
First Sec. Bank of Utah v. Banberry
Crossing, 780 P.2d 1253, 1256-67 (Utah 1989). Whether a
statement is
reasonably capable of a wrongful meaning is a question of law for the Court.
West
v. Thomson Newspapers, 872 P.2d 999, 1008 (Utah 1994). A court
"must carefully examine the
context in which the statement was made," and
cannot make this determination by "viewing
individual words in isolation."
Id. at 1009. A statement is not actionable if the context makes
clear
that "the speaker is expressing a subjective view" or "interpretation," rather
than "claiming
to be in possession of objectively verifiable facts."
Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222,
1227 (7th Cir. 1993);
see West, 872 P.2d at 1018-20 (view that politician misrepresented
position
to get elected was non-actionable opinion based on inference from
true
facts).2
1 Novell's Motions In Limine Nos. 6 to 8 concern
Novell's statements in December 2003 and
early 2004; application of common
law privileges to Novell's statements; and Novell's
statements in copyright
applications. As noted in Motions In Limine Nos. 6 and 7, Novell's June
and
August 2003 statements were in private letters to SCO and thus cannot be
potentially
actionable until Novell later published them on its website,
with copies of the parties' other
related correspondence.
2 See also Mast v. Overson, 971 P.2d 928, 932-33
(Utah Ct. App. 1998) (statements not
defamatory as a matter of law when made
in "ongoing heated debate" in reply to plaintiff's
public "assertions of
wrongdoing"); Jefferson County Sch. Dist. No. R-1 v. Moody's
Investor's
Servs., 175 F.3d 848, 855-57 (10th Cir. 1999) ("negative
outlook" bond rating too subjective to
state claim for injurious
falsehood).
1
II. NOVELL'S JUNE 6, 2003 LETTER AND
PRESS RELEASE DID NOT ASSERT
THAT NOVELL OWNS THE UNIX COPYRIGHTS
SCO's
complaint alleges that Novell's June 6, 2003, letter "call[ed] SCO's claims
of
copyright ownership `absurd' and `unsubstantiated.'" (Dkt. No. 96,
37(d)(emphasis added).)
This is incorrect. Novell did not refer to "SCO's
claims of copyright ownership." Rather,
Novell stated: "Your letter
contains absurd and unfounded accusations against Novell and
others." (Ex.
5A.) The cited SCO letter accused Novell of (1) "maliciously...intend[ing]
to
harm SCO's share value"; (2) timing a press release "to coincide with
[SCO's] earnings
announcement"; and (3) "deceptive" conduct to "depress
SCO's stock price in violation of the
Federal securities law." (Ex. 5B.)
Calling these accusations "absurd" is not a denial of SCO's
ownership
claim, especially since Novell's attached press release stated that Amendment
#2
"appears to support" SCO's claim. (Ex. 5A.) Novell's letter cannot
reasonably be read as
asserting that SCO did not own the copyrights, and
cannot be relied on
to prove slander of title.3
III. NOVELL'S JUNE 26, 2003 LETTER
DID NOT ASSERT THAT NOVELL OWNS
THE UNIX COPYRIGHTS
SCO asserts that
Novell's June 26, 2003, letter to SCO "called SCO's claims of
ownership of
UNIX and UnixWare `simply wrong.'" (Dkt. No. 96, 37(e).) This is
another
distortion. Novell said that "SCO's statements" are wrong,
referring to SCO's assertion that it
owns "all of the intellectual
property rights associated with UNIX and UnixWare," including
"the patents"
and other rights. (Ex. 5C (emphasis added).) Novell explained that there was
no
evidence that "SCO owns all of the patents associated with UNIX and
UnixWare." (Id.) Novell
was correct. SCO does not own the UNIX
patents, as SCO's witnesses have admitted.4
3
Oddly, SCO's complaint cites Novell's statement that Amendment #2 "appears to
support"
SCO's ownership claim as a "wrongful assertion" by Novell of
ownership rights in UNIX."
(Dkt. No. 96, 37(c).) This makes no sense. The
plain meaning is to the contrary.
4 See
Novell's 4/20/2007 Sum. Jgt. Mot., Dkt. No. 276 at 23 & n. 7 (citing
evidence that two
SCO witnesses admitted that the APA's exclusion of "all
patents" meant that SCO did not own
UNIX patents). SCO did not dispute this
point in its opposition. (See Dkt. No. 325.)
2
SCO
cannot own "all" UNIX intellectual property, including patents. Novell's further
comment
that Amendment No. 2 "raises as many questions as it answers"
(id.), is a true statement that the
amendment is unclear. See The
SCO Group, Inc. v. Novell, Inc., 578 F.3d 1201, 1215 (10th Cir.
2009)
(the "language of Amendment No. 2 concerning the transfer of
copyrights is
ambiguous").
IV. NOVELL'S AUGUST 4, 2003 LETTER DID NOT ASSERT THAT
NOVELL OWNS THE UNIX COPYRIGHTS
SCO cites the statement in Novell's
August 4, 2003, letter that Novell "disputes SCO's
claim to ownership of
these copyrights." (Dkt. No. 96, 37(f).) But the only "fact" asserted
is
that Novell "disputes SCO's claim," which is correct. And SCO ignores the
rest of the letter,
which explains that (1) the APA excluded copyrights from
the transfer; (2) the Amendment No.
2 exception is limited to copyrights
"required" for Santa Cruz Operation to exercise APA rights;
and (3)
"[u]nless and until SCO is able to establish that some particular copyright is
`required'
for SCO to exercise its rights under the APA, SCO's claim to
ownership of any copyrights in
UNIX technology must be rejected." (Ex.
5D.)
All of these points are correct. The Tenth Circuit held that the APA,
by itself,
"unambiguously excludes the transfer of copyrights." The SCO
Group, 578 F.3d at 1210. It also
found that whether the copyrights
transferred because they were "required" to exercise APA
rights presents a
triable issue that "could legitimately be resolved in favor of either party."
Id. at
1215-19. Novell's statement of its subjective view on a
legitimate dispute is not actionable.
[ Reply to This | # ]
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| Authored by: bugstomper on Wednesday, February 10 2010 @ 02:07 AM EST |
| NOVELL'S 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 AND RELATED
COUNTERCLAIMS.
INTRODUCTION
SCO's slander of title claim
points to various statements that allegedly assert that "Novell,
and not
SCO, owns the UNIX and UnixWare copyrights." (Dkt. No. 96, 91, 37.)
Novell
demonstrated in its Motion In Limine No. 5 that SCO should be barred
from relying on Novell's
June and August 2003 statements because they cannot
reasonably be read as asserting copyright
ownership as an objective fact.
Novell hereby moves to bar SCO from relying on Novell's later
statements in
December 2003 and March 2004 because they merely reiterate Novell's
subjective
opinion that Novell owns the copyrights, and are thus not
actionable
as a matter of law.
I. SCO MUST PROVE THAT NOVELL'S STATEMENTS
CAN REASONABLY BE INTERPRETED AS FACTUAL ASSERTIONS OF COPYRIGHT
OWNERSHIP
Slander of title requires a false statement "disparaging
claimant's title." First Sec. Bank
of Utah v. Banberry Crossing, 780 P.2d
1253, 1256-67 (Utah 1989). Whether a statement is
reasonably capable of a
wrongful meaning is an issue of law for the Court. West v.
Thomson
Newspapers, 872 P.2d 999, 1008 (Utah 1994). A court "must carefully
examine the context in
which the statement was made."1Id. at 1009. A statement is not actionable
if the context makes
clear that "the speaker is expressing a subjective
view" or "interpretation," rather than "claiming
to be in possession of
objectively verifiable facts." Haynes v. Alfred A. Knopf, Inc., 8 F.3d
1222,
1227 (7th Cir. 1993). Thus, the Utah Supreme Court held that an
implied charge that a
politician lied to get elected was not actionable as a
matter of law because it was an inference
based on the undisputed fact that
he had changed his position on a key issue after being elected.
West, 872
P.2d at 1018-20; see also Mast v. Overson, 971 P.2d 928, 934 (Utah Ct. App.
1998)
(statements not defamatory when replied to "assertions of wrongdoing"
in "spirited public
1 West held that a
charge of "manipulat[ing]" the press was not defamatory in the context of
a
"heated political battle" and in view of its "casual, albeit critical"
tone, which most readers
would view as "exaggerated commentary." Id. at
1009-10. The Utah Supreme Court recently
emphasized that West requires "a
context-driven assessment" of whether a statement is
reasonably susceptible
to a defamatory meaning, which requires the court to "weigh
competing
definitions and make sense of context," and thus "leaves no room
for indulging inferences in
favor of the nonmoving party." O'Connor v.
Burningham, 165 P.3d 1214, 1221-22 (Utah 2007).
3
debate"); Jefferson
County Sch. Dist. No. R-1 v. Moody's Investor's Servs., 175 F.3d 848,
855-57
(10th Cir. 1999) ("negative outlook" rating too subjective to state
injurious falsehood claim);
Partington v. Bugliosi, 56 F.3d 1147, 1153-54
(9th Cir. 1995) (account of controversial criminal
trials not actionable
because rational interpretation and opinion
about ambiguous subject).
II.
NOVELL'S DECEMBER 2003 STATEMENT IS A SUBJECTIVE OPINION ON A
LEGITIMATE DISPUTE
BASED ON ITS PRIOR STATEMENTS
SCO's complaint relies on Novell's press
release dated December 22, 2003.2(Dkt.
No.
96, 37(i).) The full text of that press release is as follows (Ex. 6A
(emphasis added)):
Novell believes it owns the copyrights in
UNIX, and has applied for and received
copyright registrations pertaining to
UNIX consistent with that position. Novell
detailed the basis for its
ownership position in correspondence with SCO. Copies
of our correspondence,
and SCO's reply, are available here. Contrary to SCO's
public
statements, as demonstrated by this correspondence, SCO has been well
aware
that Novell continues to assert ownership of the
UNIX
copyrights.
The clear import of this statement is that Novell
"believes" it owns the copyrights for the
reasons "detailed" in its prior
correspondence with SCO, copies of which are available on
Novell's website,
with SCO's reply.3This is Novell's
subjective view on a disputed legal issue
that the Tenth Circuit found
"could legitimately be resolved in favor of either party." See The
SCO
Group, Inc. v. Novell, Inc., 578 F.3d 1201, 1215 (10th Cir. 2009) (further
noting that the
"language of Amendment No. 2 concerning the transfer of
copyrights is
ambiguous").
Novell's statement that it "continues to assert"
ownership confirms the subjective nature
of Novell's belief. This is the
language of argument, not objective
fact. This argumentative tone
2 SCO's complaint also alleges that Novell stated in a
January 13, 2004 press release that Novell
"retained ownership of [UNIX]
copyrights." (Dkt. No. 96, 37(j).) SCO has not designated any
press
release with this statement as a trial exhibit, and thus cannot
rely on any such
statement.
3 Novell's December 22, 2003 press
release and the related correspondence is available
at
http://www.novell.com/news/press/archive/2003/12/pr03080.html. Clicking
the "here"
hyperlink in the press release brings up copies of Novell's
letters to SCO of June 26 and August
4, 2003, and SCO's reply of September
10, 2003. (See Ex. 6B.)
2
is reinforced by Novell's
concurrent publication of SCO's reply of September 10, 2003, asserting
that
SCO "disagree[s] with [Novell's] analysis and conclusions," and that Novell's
interpretation
"ignores certain provisions of the relevant documents and
does not consider the agreements
between Novell and SCO as a whole." (Ex.
6B.) Novell's publication of its June 26 and August
4, 2003 letters also did
not constitute a statement of copyright ownership because Novell's
June
letter did not claim ownership and its August letter merely expressed
the qualified opinion that
SCO did not own the copyrights "unless and until"
SCO could show that a particular copyright
was "required" to exercise APA
rights. (Id.; see Novell's Motion In
Limine No. 5, at 3.)
III. NOVELL'S
MARCH 2004 TRADE SHOW REMARKS MERELY REPEAT NOVELL'S PRIOR OPINION
SCO's
complaint alleges: "At the March 2004 Open Source Business Conference in
San
Francisco, Novell's Vice Chairman Chris Stone proclaimed during his
keynote address that
Novell `still own[s] UNIX.'" (Dkt. No. 96, 37(k).)
SCO has relied on a transcript it prepared
of a CNET broadcast, which states
(Ex. 6C at 5):
"Sorry Darl, again. Al Gore didn't invent the
Internet and you didn't invent
Linux or intellectual property law. We still
own Unix. And we believe, that Unix
is not in Linux, and that Linux is a
free, and is an open distribution, and should be.
And always will
be."
Here, the context is dispositive. SCO had filed this suit
against Novell two months
earlier. (Dkt. No. 1. 1/20/2004 Complaint.) This
was an "Open Source" conference for the
Linux community that was the target
of SCO's threats and was thus already aware of the
Novell/SCO dispute and
massive related media coverage. (See Novell's Motion In Limine No. 3
and
Exs. 3B to 3S.) Thus, the context "informed the reader/listener that the
statements were
merely another installment in the continuing heated debate."
See Mast, 971 P.2d at 933. The
only reasonable interpretation is that Mr.
Stone was repeating Novell's subjective view that it
owned the copyrights
for the reasons in its letters, which is not actionable as a matter of
law.
3
[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, February 10 2010 @ 05:59 AM EST |
| NOVELL'S MOTION IN LIMINE NO. 19: TO EXCLUDE CERTAIN TESTIMONY FROM EDWARD
CHATLOS, BURT LEVINE, AND KIM MADSEN FOR LACK OF PERSONAL
KNOWLEDGE
Pursuant to Federal Rules of Evidence 602 and 701, defendant
Novell, Inc.
respectfully moves the Court in limine to exclude the testimony of
lay
witnesses Edward Chatlos, Burt Levine, and Kim Madsen regarding the
intended
meaning of the copyright ownership provision of Amendment 2 of the APA.
As
explained blow, Messrs. Chatlos and Levine, and Ms. Madsen lack personal
knowledge to speak on the provisions of Amendment 2 and are, therefore,
barred
by Rule 602 from offering testimony on that subject.
I. CHATLOS,
LEVINE AND MADSEN LACK PERSONAL KNOWLEDGE TO SPEAK ABOUT THE
INTENT AND
MEANING OF AMENDMENT 2
Under Rule 602, "[a] witness may not testify to a
matter unless evidence is
introduced sufficient to support a finding that the
witness has personal
knowledge of the matter." Fed. R. Evid. 602; Zokari v.
Gates, 561 F.3d
1076, 1089 (10th Cir. 2009)(citation omitted)(affirming
district court ruling
excluding testimony of witness who lacked personal
knowledge of matters
relevant to trial). Under the personal knowledge standard,
testimony is
inadmissible if "the witness could not have actually perceived or
observed
that which he testifies to." Argo v. Blue Cross & Blue Shield of
Kan.,
Inc., 452 F.3d 1193, 1200 (10th Cir. 2006)(citations
omitted)("'statements
of mere belief' in an affidavit must be
disregarded").
Moreover, a lay witness may not testify as to matters which
call for a
legal conclusion, such as the interpretation and effect of a contract
or an
amendment thereto. See, e.g., Evangelista v. Inlandboatmen's Union of
the
Pac., 777 F.2d 1390, 1398 n.3 (9th Cir. 1985)(opinion of union
chairman
as to correct constructing of collective bargaining agreement was
inadmissible
because it was a legal conclusion).
Mr. Chatlos lacks personal knowledge to
testify as a lay witness about the
intent and meaning of Amendment 2. Mr.
Chatlos left his employment at Novell
in January of 1996 -- ten months before
Amendment 2 was negotiated.
(Ex. 19A (Chatlos Dep.) at 29:24-30:2; Ex. 19B
(Chatlos IBM Dep.) at 134:
10-16). He admins, as he must, that he played no
role in negotiating or
drafting the amendment. (Ex. 19A at 41:9-18 (stating "I
wasn't party of
that," and that he left Novell before it was negotiated),
42:15-18; Ex. 19B at
49:13-21 (he was not involved in the negotiation of
Amendment 2).)
Accordingly, any testimony by Mr. Chatlos about the meaning of
Amendment 2 is
improper opinion testimony based on speculation and hearsay.
(E.g.,
Ex. 19A at 42:19-43:11.)
Mr. Levine also lacks personal
knowledge to testify as a lay witness about
the intent and meaning of Amendment
2. He testified that he played no role
whatsoever in negotiating or drafting
Amendment 2. (Ex. 19C (Levine Dep.) at
190:11-22).) Consequently, any testimony
by Mr. Levine about the meaning of
Amendment 2 lacks foundation and is improper
opinion testimony. (E.g.,
id. at 161:22-162:10 (testifying that
Amendment 2 confirms that the
copyrights were intended to be transferred);
187:10-190:22.)
Ms. Madsen lacks foundation to testify as a lay witness about
the intent
and meaning of Amendment 2. At her 2007 deposition, Ms. Madsen
testified that
she "cannot recall any specific conversations regarding amendment
2" and
testified that she could not recall any conversations with Novell or
Santa
Cruz relating to Amendment 2:
Q. To clarify, you don't
have any specific recollections contemporaneous
with amendment number 2 of
conversations with representatives of Novell about
amendment 2; is that
right?
THE WITNESS: That's right.
Q. And so as you sit here today you
can't tell me anything specific that
Novell may have told you or anyone else at
Santa Cruz regarding amendment
number 2; is that right?
A. No, I don't
recall anything specific.
(Ex. 19D (Madsen Dep.) at 209:9-203:16
(objections omitted).) Although Ms.
Madsen could not recall any conversations
concerning whether or not Amendment
2 transferred the UNIX and UnixWare
copyrights to Santa Cruz, she offered
inadmissible speculation about the intent
of Amendment 2. (E.g., id. at
204:4-206:25.) Testimony by Ms. Madsen
about the meaning of Amendment 2 lacks
foundation and is improper opinion
testimony.
II. CONCLUSION
For the reasons stated herein, Novell
moves to exclude the testimony of
Messrs. Chatlos and Levine and Ms. Madsen
regarding the intent and meaning of
Amendment 2 of the APA.
[ Reply to This | # ]
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| Authored by: jacks4u on Wednesday, February 10 2010 @ 07:08 AM EST |
| Judge Kimball held, as a matter of law, that SVRX Licenses in the Asset
Purchase
Agreement (APA) are not limited to license agreements in existence
at the time of the APA.
SCO appealed this issue and the Tenth Circuit upheld
Judge Kimballs determination. Therefore,
the law of the case precludes SCO
from presenting any evidence or argument contrary to this
ruling.
I.
UNDISPUTED FACTS
In October 2006, Novell moved for summary judgment
on its claims for breach of
fiduciary duty and conversion based on SCOs
retention of certain payments SCO received under
its 2003 license agreements
with Sun Microsystems and Microsoft Corporation that Novell
contended
constituted SVRX Royalties under the APA. (Mem. ISO Novells Mot. for Partial
Summ. J. or Preliminary Inj., Dkt. No. 155 (under seal).) In its opposition and
cross motion for
partial summary judgment, SCO argued that Novells interest in
SVRX Royalties was limited to
SVRX Licenses in existence at the time of the
APA. (Mem. In Oppn to Mot. for Partial Summ.
J. or Preliminary Inj. at 35-37,
Dkt. No. 183 (under seal).) Novell replied that there is no basis
in the APA
for any temporal limitation on SVRX Licenses. (Novells Reply to Oppn at 4-5,
Dkt. No. 205 (under seal).)
In August 2007, Judge Kimball granted
summary judgment for Novell on its claims for
breach of fiduciary duty and
conversion. (Order at 96, Dkt. No. 377.) Judge Kimball considered
SCOs
argument that the term SVRX Licenses refers only to licenses in existence at
the time
of the APA and rejected it as a matter of law, concluding that there
is no limitation in the APA
to then-existing SVRX Licenses. (Id. at 90-93.)
SCO appealed this issue and the Tenth
Circuit affirmed Judge Kimballs ruling
with respect to SCOs liability from its 2003 agreement
with Sun. In so doing,
the Tenth Circuit agree[d] with the district court that agreements that
post-date the APA may constitute SVRX Licenses. The SCO Group, Inc. v. Novell,
Inc., 578
F.3d 1201, 1227 (10th Cir. 2009).
Under the 10th Circuits limited
mandate, the only issue to be resolved regarding SVRX
Licenses is whether
that term refers to all three types of agreements bearing upon the licensing
of SVRX technology software agreements, sublicensing agreements, and product
supplement
agreements (or Product Schedule Licenses) or just to product
supplement agreements. SCO
Group, 578 F.3d at 1219.
II. SCO SHOULD BE
PRECLUDED FROM CONTESTING THAT SVRX
LICENSES MAY INCLUDE POST-APA
AGREEMENTS
The law of the case doctrine precludes SCO from contesting
matters that have been
decided as a matter of law. Mason v. Texaco, Inc., 948
F.2d 1546, 1553 (10th Cir. 1991)
([W]hen a court decides upon a rule of law,
that decision should continue to govern the same
issues in subsequent stages in
the same case) (quoting Arizona v. California, 460 U.S. 605, 618
(1983)). This
principle applies to all issues previously decided, either explicitly or by
necessary
implication. Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1183 (10th
Cir. 1995) (citation
omitted).
In this case, Judge Kimball
explicitly decided that SVRX Licenses are not limited to
agreements in
existence at the time of the APA. The Tenth Circuit affirmed this ruling,
leaving
open only the issue of whether SVRX License includes all three types of
agreements bearing on
the licensing of SVRX technology, or are instead limited
to just product supplement agreements.
Therefore, the Court should preclude SCO
from contesting that license agreements that post-date
the APA may constitute
SVRX Licenses.
[ Reply to This | # ]
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| Authored by: Steve Martin on Wednesday, February 10 2010 @ 07:30 AM EST |
HTML is on the way to PJ.
---
"When I say something, I put my name next to it." -- Isaac Jaffe, "Sports Night"[ Reply to This | # ]
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| Authored by: bugstomper on Wednesday, February 10 2010 @ 07:46 AM EST |
| NOVELL'S MOTION IN LIMINE NO. 7 TO DETERMINE THAT COMMON LAW PRIVILEGES APPLY
TO ALLEGEDLY DEFAMATORY PUBLICATIONS
INTRODUCTION
SCO alleges
that Novell slandered SCO's title to certain copyrights by asserting
that
Novell, and not SCO, owns those copyrights. (Dkt. 96 at 91.)
According to SCO, Novell
published that allegedly defamatory matter in: (1)
a public letter dated May 28, 2003; (2) private
correspondence sent to SCO
in June and August 2003; (3) copyright applications submitted to
the United
States Copyright Office in September and October 2003; and (4) various other
public
announcements, including a December 22, 2003 press release that
republished hitherto private
correspondence with SCO. (Id. at 37.)
By this motion, Novell seeks rulings in limine that (a)
its private
correspondence to SCO is not actionable because it is protected by the common
law
litigation privilege; and (b) its broader publications are not
actionable unless SCO can prove that
Novell acted solely out of
malice or bad faith because they are subject to the recipient's and
rival
claimant's privileges.1
I. ARGUMENT
All of
Novell's allegedly defamatory publications were made after SCO sent
demand
letters to Novell and to 1,500 other companies, in which SCO
published its own claim that it
owned the copyrights at issue in this case
and demanded that the recipients pay for licenses.2
(Dkt. 121 at 52.) Under these
circumstances, a rule imposing liability on Novell for disputing
SCO's
ownership would be unfair both to Novell and to the third parties from
whom SCO wants
to extract licensing fees, and it is not the law. Slander of
title requires a false statement made
"without privilege," Dowse v. Doris
Trust Co., 116 Utah 106, 110-11, 208 P.2d 956 (1949), and
Novell's
publications were privileged.
Novell's publication of its ownership claim in
private pre-litigation correspondence to
SCO, responding to SCO's demand
letter, is protected by the litigation
privilege, which is
1
absolute.
See Price v. Armour, 949 P.2d 1251, 1256 (Utah 1997) (quoting Restatement
(Second)
of Torts ["Rest."] 587) ("A party to a private litigation ... is
absolutely privileged to publish
defamatory matter ... in communications
preliminary to a proposed judicial proceeding ... if the
matter has some
relation to the proceeding").3
Novell's broader publications, in turn,
are protected by two other, conditional privileges.
First, "[t]he law has
long recognized that a publication is conditionally privileged if made
to
protect a legitimate interest of the ... recipient." Brehany v.
Nordstrom, 812 P.2d 49, 59 (Utah
1991) (citing, inter alia, Rest.
595); see also Rest. 646A (privilege applies to slander
of
title).4Second, a further privilege
applies specifically to a rival's publication of its claim to
property
(including intangible property). Rest. 647; see also id. cmt. b
(privilege is "applicable
to ... injurious falsehood"); Jack B. Companies
v. Nield, 751 P.2d 1131, 1134 (Utah 1988)
("slander of title ... is ...
injurious falsehood"). Novell seeks in limine rulings that its
public
disclosures are covered by both privileges. See O'Connor v.
Burningham, 165 P.3d 1214, 1224
(Utah 2007) ("Whether a statement is
entitled to the protection of a conditional privilege presents
a question of
law; whether the holder of the privilege lost it due to abuse presents a
question of
fact"). Taking them in order, the other recipients of Novell's
publications--to whom SCO also
sent demand letters--have a legitimate
interest in ascertaining the true ownership of the
copyrights SCO is
threatening to sue them on, so the recipient's privilege also applies.
See Rest.
2
595. And the rival claimant's privilege applies, by
definition, to any assertion by Novell that it
owns the copyrights claimed
by SCO.
SCO bears the burden of overcoming the conditional privileges "by
proof of malice or
excessive publication." Brehany, 812 P.2d at 59.
Novell also requests that the Court rule in
limine that SCO cannot show
excessive publication because it is suing Novell for publishing to
precisely
those third parties that have interest in the true ownership of the copyrights,
and any
publication to disinterested parties is irrelevant to SCO's supposed
damages. See Rest. 599
cmt. b ("If the harm done by the abuse is
severable, and can be distinguished from the harm done
by a part of the
publisher's conduct that would properly be privileged, he is subject to
liability
only for the excess of harm resulting from his abuse"); see
generally O'Connor, 165 P.3d at
1224 (the Restatement's teachings on
privilege "enjoy close ties to common sense and thus
appear worthy of our
confidence"). The only remaining issue that would leave for the jury
to
decide is whether Novell made those publications in bad faith,
solely out of ill-will, and with no
intent to protect the
legitimate interests of the recipients. See Rest. 603 cmt. a. ("if
the
publication is made for the purpose of protecting the interest in
question, the fact that the
publication is inspired in part by resentment or
indignation at the supposed misconduct of the
person defamed does not
constitute an abuse of the privilege"); id. at 647 cmt. b
(rival
claimant's privilege "permits the publisher to assert a claim ...
provided that the assertion is
honest and in good faith, even though his
belief is neither correct nor reasonable").
II.
CONCLUSION
This Court should rule, in limine, that (1) Novell's
publication of its ownership claim to
SCO is subject to the absolute
litigation privilege; and (2) any broader publication of that claim
is
conditionally protected by the recipient's interest and rival claimant's
privileges.
1 A companion motion in
limine (no. 8) addresses the Noerr-Pennington privilege applicable
to
Novell's copyright applications.
2 SCO was
also the first to go public, as
more fully explained in Novell's motion in
limine no. 3.
3 For convenient reference,
Restatement sections cited herein are reproduced in Exhibits 7A-7F
hereto.
As SCO itself has elsewhere observed: "Thus, for example, the sending of a
demand
letter, settlement letter, or a cease and desist letter is absolutely
privileged." SCO's Mem. Supp.
Mot. Summ. J. at 5, SCO Group, Inc. v. IBM,
No. 2:03CV294 (D. Utah Sep. 25, 2006).
Arguably, this privilege also
protects Novell's publications to the broader Linux community.
See Krouse v.
Bower, 20 P.3d 895, 900 (Utah. 2001) ("The excessive publication rule, in
the
context of judicial proceeding privilege cases, is to prevent abuse of
the privilege by publication
of defamatory statements to persons who have no
connection to the
judicial proceeding").
4
Property interests are a "legitimate interest" within the ambit of the
recipient's interest
privilege. See Rest. 595 cmt. d.
3
[ Reply to This | # ]
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| Authored by: Steve Martin on Wednesday, February 10 2010 @ 07:47 AM EST |
HTML on the way to PJ.
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"When I say something, I put my name next to it." -- Isaac Jaffe, "Sports Night"[ Reply to This | # ]
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| Authored by: jacks4u on Wednesday, February 10 2010 @ 07:53 AM EST |
| SCOs slander of title claim points to various statements that allegedly
assert that Novell,and not SCO, owns the UNIX and UnixWare copyrights. (Dkt.
No. 96, 91, 37.) Novell demonstrated in its Motion In Limine No. 5 that SCO
should be barred from relying on Novells June and August 2003 statements
because they cannot reasonably be read as asserting copyright ownership as an
objective fact. Novell hereby moves to bar SCO from relying on Novells later
statements in December 2003 and March 2004 because they merely reiterate
Novells subjective opinion that Novell owns the copyrights, and are thus not
actionable as a matter of law.
I. SCO MUST PROVE THAT NOVELLS
STATEMENTS CAN REASONABLY BE INTERPRETED AS FACTUAL ASSERTIONS OF COPYRIGHT
OWNERSHIP
Slander of title requires a false statement disparaging
claimants title. First Sec. Bank of Utah v. Banberry Crossing, 780 P.2d 1253,
1256-67 (Utah 1989). Whether a statement is reasonably capable of a wrongful
meaning is an issue of law for the Court. West v. Thomson Newspapers, 872 P.2d
999, 1008 (Utah 1994). A court must carefully examine the context in which the
statement was made.1 Id. at 1009. A statement is not actionable if
the context makes clear that the speaker is expressing a subjective view or
interpretation, rather than claiming to be in possession of objectively
verifiable facts. Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir.
1993). Thus, the Utah Supreme Court held that an implied charge that a
politician lied to get elected was not actionable as a matter of law because it
was an inference based on the undisputed fact that he had changed his position
on a key issue after being elected. West, 872 P.2d at 1018-20; see also Mast v.
Overson, 971 P.2d 928, 934 (Utah Ct. App. 1998) (statements not defamatory when
replied to assertions of wrongdoing in spirited
public
______________________
1West held that a
charge of manipulat[ing] the press was not defamatory in the context of a
heated political battle and in view of its casual, albeit critical tone,
which most readers would view as exaggerated commentary. Id. at 1009-10. The
Utah Supreme Court recently emphasized that West requires a context-driven
assessment of whether a statement is reasonably susceptible to a defamatory
meaning, which requires the court to weigh competing definitions and make sense
of context, and thus leaves no room for indulging inferences in favor of the
nonmoving party. OConnor v. Burningham, 165 P.3d 1214, 1221-22 (Utah 2007).
debate); Jefferson County Sch. Dist. No. R-1 v. Moodys Investors Servs., 175
F.3d 848, 855-57 (10th Cir. 1999) (negative outlook rating too subjective to
state injurious falsehood claim); Partington v. Bugliosi, 56 F.3d 1147, 1153-54
(9th Cir. 1995) (account of controversial criminal trials not actionable because
rational interpretation and opinion about ambiguous
subject).
II. NOVELLS DECEMBER 2003 STATEMENT IS A
SUBJECTIVE OPINION ON A LEGITIMATE DISPUTE BASED ON ITS PRIOR STATEMENTS
SCOs complaint relies on Novells press release dated December 22,
2003.2 (Dkt. No.96, 37(i).) The full text of that press release is
as follows (Ex. 6A (emphasis added)):
Novell
believes it owns the copyrights in UNIX, and has applied for and received
copyright registrations pertaining to UNIX consistent with that position.
Novell
detailed the basis for its ownership position in
correspondence with SCO. Copies
of our correspondence, and SCOs
reply, are available here. Contrary to SCOs
public statements, as
demonstrated by this correspondence, SCO has been well
aware that
Novell continues to assert ownership of the UNIX copyrights.
The clear import of this statement is that Novell believes it owns the
copyrights for the reasons detailed in its prior correspondence with SCO,
copies of which are available on Novells website, with SCOs reply.3
This is Novells subjective view on a disputed legal issue that the Tenth
Circuit found could legitimately be resolved in favor of either party. See The
SCO Group, Inc. v. Novell, Inc., 578 F.3d 1201, 1215 (10th Cir. 2009) (further
noting that the language of Amendment No. 2 concerning the transfer of
copyrights is ambiguous).
Novells statement that it continues to
assert ownership confirms the subjective nature of Novells belief. This is the
language of argument, not objective fact. This argumentative
tone
______________________
2SCOs complaint also
alleges that Novell stated in a January 13, 2004 press release that Novell
retained ownership of [UNIX] copyrights. (Dkt. No. 96, 37(j).) SCO has not
designated any press release with this statement as a trial exhibit, and thus
cannot rely on any such statement.
3Novells December 22, 2003
press release and the related correspondence is available at
http://www.novell.com/news/press/archive/2003/12/pr03080.html. Clicking the
here hyperlink in the press release brings up copies of Novells letters to
SCO of June 26 and August 4, 2003, and SCOs reply of September 10, 2003. (See
Ex. 6B.) is reinforced by Novells concurrent publication of SCOs reply of
September 10, 2003, asserting that SCO disagree[s] with [Novells] analysis and
conclusions, and that Novells interpretation ignores certain provisions of
the relevant documents and does not consider the agreements between Novell and
SCO as a whole. (Ex. 6B.) Novells publication of its June 26 and August 4,
2003 letters also did not constitute a statement of copyright ownership because
Novells June letter did not claim ownership and its August letter merely
expressed the qualified opinion that SCO did not own the copyrights unless and
until SCO could show that a particular copyright was required to exercise APA
rights. (Id.; see Novells Motion In Limine No. 5, at 3.)
III.
NOVELLS MARCH 2004 TRADE SHOW REMARKS MERELY REPEAT NOVELLS PRIOR
OPINION
SCOs complaint alleges: At the March 2004 Open Source
Business Conference in SanFrancisco, Novells Vice Chairman Chris Stone
proclaimed during his keynote address that Novell still own[s] UNIX. (Dkt.
No. 96, 37(k).) SCO has relied on a transcript it prepared
of a CNET
broadcast, which states (Ex. 6C at 5):
Sorry Darl,
again. Al Gore didnt invent the Internet and you didnt invent
Linux or intellectual property law. We still own Unix. And we believe, that
Unix
is not in Linux, and that Linux is a free, and is an open
distribution, and should be.
And always will be.
Here, the context is dispositive. SCO had filed this suit against Novell two
months earlier. (Dkt. No. 1. 1/20/2004 Complaint.) This was an Open Source
conference for the Linux community that was the target of SCOs threats and was
thus already aware of the Novell/SCO dispute and massive related media coverage.
(See Novells Motion In Limine No. 3 and Exs. 3B to 3S.) Thus, the context
informed the reader/listener that the statements were merely another
installment in the continuing heated debate. See Mast, 971 P.2d at 933. The
only reasonable interpretation is that Mr. Stone was repeating Novells
subjective view that it owned the copyrights for the reasons in its letters,
which is not actionable as a matter of law.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Wednesday, February 10 2010 @ 09:37 AM EST |
By applying the Mandate Rule as he did, the judge in this case gave Novell an
exceptionally big hammer to drive the nails in SCO's coffin. SCO's litigation
strategy has been to make the cases look as big as possible and to generate as
much delay as they can. Seemingly, this would work to justify the huge damage
award SCO seeks to receive. The exceptionally narrow interpretation of the
appeal mandate looks to minimize what is presented to a jury, in which case,
even if SCO wins the majority of the case, they may only see minimal dollars.
I just had a tangential thought. Assuming that the judge is leaning in favor of
SCO, what happens if the jury finds overwhelmingly in favor of Novell? After
all of the fuss SCO put up to get in front of a jury, how could they put forth
the inevitable "Motion to Set Aside the Jury Verdict" or the appeal of
the jury verdict that would undoubtedly follow? After all, they got a bench
trial and a jury trial out of the same case. As much criticism as attorneys
get, there has to be a point when their pride prevents them from continuing to
take beatings like this. Where does zealous advocacy end?[ Reply to This | # ]
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- Such a Big Hammer - Authored by: Anonymous on Wednesday, February 10 2010 @ 10:17 AM EST
- Such a Big Hammer - Authored by: Anonymous on Wednesday, February 10 2010 @ 10:36 AM EST
- Such a Big Hammer - Authored by: Anonymous on Wednesday, February 10 2010 @ 01:14 PM EST
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| Authored by: bugstomper on Wednesday, February 10 2010 @ 02:44 PM EST |
| NOVELL'S MOTION IN LIMINE NO. 13: TO EXCLUDE CERTAIN TESTIMONY FROM
LAWRENCE
BOUFFARD FOR LACK OF PERSONAL KNOWLEDGE AND
VIOLATION OF PAROL EVIDENCE
RULE
INTRODUCTION
Pursuant to Federal Rules of Evidence 602
and 701, defendant Novell, Inc. respectfully
moves the Court in limine to
exclude the testimony of lay witness Lawrence Bouffard regarding
the
intended meaning of the copyright ownership provisions of the Asset Purchase
Agreement
("APA") and Amendment 2 of the APA. As explained below, Mr.
Bouffard lacks personal
knowledge to speak on the copyright ownership
provisions and is, therefore, barred by Rule 602
from offering testimony on
that subject. Additionally, to the extent that such testimony interprets
and
contradicts the clear language of the APA, it constitutes inadmissible parol
evidence.
I. MR. BOUFFARD LACKS PERSONAL KNOWLEDGE TO SPEAK ON
THE
COPYRIGHT OWNERSHIP PROVISIONS OF THE APA AND AMENDMENT 2
Under
Rule 602, "[a] witness may not testify to a matter unless evidence is
introduced
sufficient to support a finding that the witness has personal
knowledge of the matter." Fed. R.
Evid. 602; Zokari v. Gates, 561
F.3d 1076, 1089 (10th Cir. 2009) (affirming district court ruling
excluding
testimony of witness who lacked personal knowledge of matters relevant to
trial).
Under the personal knowledge standard, testimony is inadmissible if
"the witness could not have
actually perceived or observed that which he
testifies to." Argo v. Blue Cross & Blue Shield of
Kan., Inc.,
452 F.3d 1193, 1200 (10th Cir. 2006) (citations omitted) ("`statements of mere
belief'
in an affidavit must be disregarded").
Moreover, a lay witness
may not testify as to matters which call for a legal conclusion,
such as the
interpretation and effect of a contract or an amendment thereto. See,
e.g.,
Evangelista v. Inlandboatmen's Union of the Pac., 777 F.2d
1390, 1398 n.3 (9th Cir. 1985)
(opinion of union chairman as to correct
construction of collective bargaining agreement was
inadmissible because it
was a legal conclusion).
Mr. Bouffard lacks personal knowledge to testify as
a lay witness about the intended
meaning of the copyright ownership
provisions of the APA and whether the APA transferred the
UNIX and UnixWare
copyrights to Santa Cruz. Mr. Bouffard worked in
sales for Novell at
the
1
time of the APA transaction and does not recall being "in any way
involved" in the development
of the APA. (Ex. 13A (Bouffard Dep.) at
11:10-15, 18:2-19:1, 161:12-23.) He was not involved
in any of the
negotiations. (Id. at 22:19-23:13, 117:21-118:13.) In fact, Mr. Bouffard
said he
"only saw the APA after it was completely signed and done."
(Id. at 26:9-18.) Notably, Mr.
Bouffard admitted that he lacks
personal knowledge to testify about the intent of the
APA's
provisions:
Q. As you sit here today, with your
recollection refreshed from
what I have shown you so far, would you say that
Santa Cruz
bought the UNIX business lock, stock and barrel or that Santa
Cruz
bought certain specified assets associated with the Unix
business?
THE WITNESS: It's not for me to say. I was not involved in
the
negotiation of the APA. I don't really have that
knowledge.
(Id. at 84:7-23 (objection omitted) (also
stating that "the only persons that can decide or clarify
what [a certain
provision] was supposed to do are the parties that
negotiated
it").)
Although Mr. Bouffard never considered or discussed the issue of
copyrights (id. at
123:9-124:8, 107:10-108:5), he offered
inadmissible speculation that the APA "would not have
made sense" if Novell
had retained the copyrights. (Id. 123:2-126:6, 128:17-129:8.) He
testified
that "the intellectual property for UNIX had been transferred to
SCO." (Id. at 141:22-142:17
(however, "not having done Amendment 2 or
the APA, I can't say that that's specifically what
those people meant.").)
Accordingly, Mr. Bouffard lacks personal knowledge to testify as to
the
meaning of the APA's copyright ownership provisions and such
testimony
should be excluded.
As to Amendment 2, Mr. Bouffard lacks personal
knowledge of its intended meaning
because he did not negotiate Amendment 2
nor was he involved in any discussions of it. (Id. at
137:22-138:1,
159:17-161:23 (he did not read the copyright language of Amendment 2 and
does
not have a view on it), 26:19-27:2.) Mr. Bouffard stated that "having
not been a part of"
Amendment 2, or interpreting it in 1996 when it was
drafted, "[he]'d
have to leave it to [the
2
parties]" to interpret it.
(Id. at 193:8-13.) Accordingly, any testimony by Mr. Bouffard about
the
meaning of Amendment 2 is inadmissible opinion testimony.
II.
PAROL EVIDENCE IS INADMISSIBLE WITH REGARD TO THE CLEAR LANGUAGE OF THE
APA
The parol evidence rule is a substantive rule of law that functions
to exclude evidence
contradicting the terms of an integrated agreement.
EPA Real Estate P'ship v. Kang, 12 Cal.
App. 4th 171, 175-176 (1992).
The Tenth Circuit in this case explained that extrinsic evidence
"can only
be used to expose or resolve a latent ambiguity in the language of the
agreement
itself," and that the language of the APA itself without regard
to Amendment 2
"unambiguously excludes the transfer of copyrights" because
Schedule 1.1(b) "explains
straightforwardly that `all copyrights' were
excluded from the transaction." SCO Group, Inc. v.
Novell, Inc., 578
F.3d 1201, 1210 (10th Cir. 2009). While the appellate court ruled
that
"extrinsic evidence of the business negotiators' intent concerning the
transaction" is admissible
(id. at 1211), testimony interpreting and
contradicting the specific unambiguous terms of the
APA should be excluded
as improper parol evidence. Any such testimony from Mr.
Bouffard
interpreting the APA's unambiguous copyright exclusion provisions
as distinct from testimony
concerning the general business intent behind the
APA should be
excluded.
III. CONCLUSION
For the reasons stated
herein, Novell moves to exclude the testimony of Mr. Bouffard
regarding the
intended meaning of the copyright ownership provisions of the APA
and
Amendment 2.
3
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| Authored by: Anonymous on Wednesday, February 10 2010 @ 05:21 PM EST |
I lot of these cover this same ground:
Moreover, a lay witness may
not testify as to matters which call for a legal conclusion,...
I'm not sure that I am very happy about this.
Number
one, what then qualifies someone to be able to draw a legal conclusion? Three
years of law school? Having read the law books? Being admitted to the bar in
Possum Branch?
Secondly, this sounds like it wraps legal conclusions up in a
professional guild and I'm not too thrilled about that. Not being an
electrician, I can still rewire my own house. Not being a carpenter, I can
still build a garage. The proof is in the performance: that I can live up to
the codes and requirements of my community's standards, not that I have a
particular sheepskin.
So, if they wanted to say that Mr. Such-and-Such isn't
an expert in this area and his opinion then does not qualify as expert opinion
I'm ok with that. But drawing it out to look like any "lay witness" can't have
a valid legal opinion is a problem.
(SCO, if you want to use that argument
you can hire me.)
[ Reply to This | # ]
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- Moreover, a lay witness may not testify as to matters which call for a legal conclusion, - Authored by: Anonymous on Wednesday, February 10 2010 @ 05:55 PM EST
- Moreover, a lay witness may not testify as to matters which call for a legal conclusion, - Authored by: Anonymous on Wednesday, February 10 2010 @ 05:58 PM EST
- Moreover, a lay witness may not testify as to matters which call for a legal conclusion, - Authored by: Anonymous on Wednesday, February 10 2010 @ 06:52 PM EST
- What you do not take into account - Authored by: Anonymous on Wednesday, February 10 2010 @ 07:32 PM EST
- Moreover, a lay witness may not testify as to matters which call for a legal conclusion, - Authored by: PolR on Wednesday, February 10 2010 @ 07:57 PM EST
- Moreover, a lay witness may not testify as to matters which call for a legal conclusion, - Authored by: Ian Al on Thursday, February 11 2010 @ 03:29 AM EST
- Moreover, a lay witness may not testify as to matters which call for a legal conclusion, - Authored by: Doghouse on Thursday, February 11 2010 @ 08:02 AM EST
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| Authored by: snakebitehurts on Wednesday, February 10 2010 @ 09:04 PM EST |
Ms. Botosan showed up at a bankruptcy hearing. I forget which one - I think it
was the 14 hour marathon one.
I could not remember her name when I reported at that time. She brought boxes
of (thick) binders on a hand truck. She never got a chance to speak.
#655 and #656 talk about her
I don't know if her stuff ever made it into evidence. Is this now a back door
way of getting her "the world owes SCO bazillions" into evidence?
Obviously, the motion is to block her and from presenting it.
I'm not sure anything she wanted to say or present has ever been officially
brought before a court before.
Just an observation
MikeD[ Reply to This | # ]
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| Authored by: jjock on Wednesday, February 10 2010 @ 10:09 PM EST |
Case 2:04-cv-00139-TS Document 640 Filed
02/08/2010 Page 1 of 5
WORKMAN | NYDEGGER A PROFESSIONAL CORPORATION
Sterling A. Brennan (Utah State Bar No. 10060; E-mail:
sbrennan@wnlaw.com)
David R. Wright (Utah State Bar No. 5164: E-mail:
dwright@wnlaw.com)
Kirk R. Harris (Utah State Bar No. 10221; E-mail:
kharris@wnlaw.com)
Cara J. Baldwin (Utah State Bar No. 11863; E-mail:
cbaldwin@wnlaw.com)
1000 Eagle Gate Tower
60 E. South Temple
Salt Lake City, Utah 84111
Telephone: (801) 533-9800
Facsimile: (801) 328-1707
MORRISON & FOERSTER LLP
Michael A. Jacobs (Admitted Pro Hac Vice; E-mail:
mjacobs@mofo.com)
Eric M. Acker (Admitted Pro Hac Vice; E-mail:
eacker@mofo.com)
Grant L. Kim (Admitted Pro Hac Vice; E-Mail: gkim@mofo.com)
425 Market Street
San Francisco, California 94105-2482
Telephone: (415) 268-7000
Facsimile: (415) 268-7522
Attorneys for Defendant and Counterclaim-Plaintiff Novell, Inc.
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
THE SCO GROUP, INC., a Delaware Case No.
2:04CV00139
corporation,
NOVELL’S MOTION IN LIMINE
Plaintiff, NO. 15: TO EXCLUDE CERTAIN
TESTIMONY FROM ROBERT
vs. FRANKENBERG FOR LACK OF
PERSONAL KNOWLEDGE AND
NOVELL, INC., a Delaware corporation, VIOLATION OF
PAROL EVIDENCE
RULE
Defendant.
Judge Ted Stewart
AND RELATED COUNTERCLAIMS.
Case 2:04-cv-00139-TS Document 640 Filed
02/08/2010 Page 2 of 5
Pursuant to Federal Rules of Evidence 602 and 701,
defendant Novell, Inc. respectfully
moves the Court in limine to exclude the testimony of lay
witness Robert Frankenberg regarding
the meaning of the copyright ownership provisions of the Asset
Purchase Agreement (“APA”)
and Amendment 2 of the APA. As explained below, Mr.
Frankenberg lacks personal knowledge
to speak on the copyright ownership provisions and is,
therefore, barred by Rule 602 from
offering testimony on that subject. Additionally, to the extent
that such testimony interprets and
contradicts the clear language of the APA, it constitutes
inadmissible parol evidence.
I. MR. FRANKENBERG LACKS PERSONAL KNOWLEDGE TO
SPEAK ON THE
COPYRIGHT OWNERSHIP PROVISIONS OF THE APA AND
AMENDMENT 2
Under Rule 602, “[a] witness may not testify to a matter
unless evidence is introduced
sufficient to support a finding that the witness has personal
knowledge of the matter.” Fed. R.
Evid. 602; Zokari v. Gates, 561 F.3d 1076, 1089 (10th Cir. 2009)
(affirming district court’s
ruling excluding testimony of witness who lacked personal
knowledge of matters relevant to
trial). Under the personal knowledge standard, testimony is
inadmissible if “the witness could
not have actually perceived or observed that which he testifies
to.” Argo v. Blue Cross & Blue
Shield of Kan., Inc., 452 F.3d 1193, 1200 (10th Cir. 2006)
(citations omitted) (“‘statements of
mere belief’ in an affidavit must be disregarded”).
Moreover, a lay witness may not testify as to matters which
call for a legal conclusion,
such as the interpretation and effect of a contract or an
amendment thereto. See, e.g.,
Evangelista v. Inlandboatmen’s Union of the Pac., 777 F.2d
1390, 1398 n.3 (9th Cir. 1985)
(opinion of union chairman as to correct construction of
collective bargaining agreement was
inadmissible because it was a legal conclusion).
Mr. Frankenberg lacks personal knowledge to testify as a
lay witness about the intended
meaning of the copyright ownership provisions of the APA and
whether the APA transferred the
UNIX and UnixWare copyrights to Santa Cruz. As CEO of Novell
at the time the APA was
1
Case 2:04-cv-00139-TS Document 640 Filed
02/08/2010 Page 3 of 5
drafted, Mr. Frankenberg testified that he did not draft the
agreement, but instead relied on the
negotiation team and lawyers to implement the intellectual
property provisions of the deals. (Ex.
15A (Frankenberg Dep.) at 7:4-12, 73:10-18). Mr. Frankenberg
testified that he did not review
all of the provisions when he signed the APA, and that he does
not specifically recall looking at
the schedules of included and excluded assets. (Id. at
113:10-16, 68:9-21.) Mr. Frankenberg
signed the APA on the recommendation of Novell’s
negotiating team, much like he has in the
“[a]t least hundreds, if not more” transactions that he has
concluded as a high-ranking executive
in computer companies. (Id. at 68:9-69:6.) Thus, while Mr.
Frankenberg has personal
knowledge of the instructions he initially gave to the negotiating
team, he does not have personal
knowledge of the APA negotiations themselves or the
drafters’ intended meaning of the
language in the APA.
Nothwithstanding his lack of firsthand knowledge of the
meaning of the APA (as distinct
from his knowledge of the high level business strategy behind
the APA), Mr. Frankenberg
offered inadmissible speculation throughout his deposition as to
the intended meaning of the
copyright provisions of the APA. For instance, he agreed that in
retrospect, the APA could have
been drafted more clearly (id. at 156:9-17 (“[a]t the present
time, now that you’ve had a chance
to see a variety of issues that have arisen . . .”)) and that it
does not accurately reflect his personal
intent with regard to which copyrights were retained or
transferred. (Id. at 83:13-84:8.)1
Mr. Frankenberg also speculated and provided inadmissible
legal conclusions as to how the
APA’s copyright provisions might contradict the license back
provisions in the APA and the
Technology License Agreement. (See, e.g., id. at 66:8-22,
105:11-106:5.)
Mr. Frankenberg also lacks personal knowledge of the
intent and meaning of Amendment
2, because he was not employed by Novell or SCO at the time it
was negotiated.
1
Notably, Mr. Frankenberg also testified that he believed the
APA was well-drafted when he signed
it and a highly accurate reflection of the parties’ intent at the
time. (Id. at 71:13-72:17, 68:18-21.)
2
Case 2:04-cv-00139-TS Document 640 Filed
02/08/2010 Page 4 of 5
Mr. Frankenberg left his employment at Novell in August of
1996, and testified that he has no
information from the actual negotiators of Amendment 2 about
their intent. (Id. at 86:4-16.) In
fact, Mr. Frankenberg had not read Amendment 2 until he was
preparing for his deposition in
this litigation, taken in 2007. (Id.)
II. PAROL EVIDENCE IS INADMISSIBLE WITH REGARD TO THE
CLEAR
LANGUAGE OF THE APA
The parol evidence rule is a substantive rule of law that
functions to exclude evidence
contradicting the terms of an integrated agreement. EPA Real
Estate P’ship v. Kang, 12 Cal.
App. 4th 171, 175-176 (1992). The Tenth Circuit in this case
explained that extrinsic evidence
“can only be used to expose or resolve a latent ambiguity in
the language of the agreement
itself,” and that the language of the APA itself – without
regard to Amendment No. 2 –
“unambiguously excludes the transfer of copyrights”
because Schedule 1.1(b) “explains
straightforwardly that ‘all copyrights’ were excluded from
the transaction.” SCO Group, Inc. v.
Novell, Inc., 578 F.3d 1201, 1210 (10th Cir. 2009). While the
appellate court ruled that
“extrinsic evidence of the business negotiators’ intent
concerning the transaction” is admissible
(id. at 1211), testimony interpreting and contradicting the
specific unambiguous terms of the
APA should be excluded as improper parol evidence. Any such
testimony from
Mr. Frankenberg interpreting the APA’s unambiguous
copyright exclusion provisions – as
distinct from testimony concerning the general business intent
behind the APA – should be
excluded.
III. CONCLUSION
For the reasons stated herein, Novell moves to exclude the
testimony of Mr. Frankenberg
regarding the intended meaning of the copyright ownership
provisions of the APA and
Amendment 2.
3
Case 2:04-cv-00139-TS Document 640 Filed 02/08/2010
Page 5 of 5
DATED: February 8, 2010 Respectfully submitted,
By: /s/ Sterling A. Brennan
WORKMAN NYDEGGER
MORRISON & FOERSTER LLP
Attorneys for Defendant and
Counterclaim-Plaintiff Novell, Inc.
4
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| Authored by: webster on Wednesday, February 10 2010 @ 10:35 PM EST |
.
[These are scored Plaintiff-Defendant-Tie, 0-0-0, Or SCO-Novell-Tie. Comments
in a previous article about SCO's Motions in Limine [1-2-2]have been added at
the end. There has been little research and memory is fallible. These
prognostications are worth what you paid for them. They may change when the
oppositions appear.]
Novell Motion in Limine No. 1 to preclude SCO from presenting evidence or
argument on claims not included in SCOs appeal or the Tenth Circuits mandate.
Basis: Novell has lost their 60(b) motion to redo the Monopoly license based on
the reversal of Kimball's decision that SCO had no copyrights to license.
Novell didn't make a contingent appeal so he has denied them procedurally.
Judge Stewart has used this and a previous hearing to whip the lawyers into
shape and maintain a fast and simple trial. Unfortunately the brunt of this
discipline has fallen on Novell. So Novell now turns the Mandate Rule and a
failure to detail a contingent appeal against SCO.
Comment: This is a severe test of Stewart. He may have to eat crow and
reconsider the 60(b) motion. He may also be obstinate and allow the trial to
proceed with several detachments from reality. As we sometimes say on the
criminal side where rights may trump the unfortunate facts, "We don't want
truth, we want justice!"
Prediction: Until Judge Stewart shows another color, obstinacy wins. Score
this one for SCO. 1-0-0.
******************
Novell Motion in Limine No. 2 for a ruling that First Amendment defenses apply
to SCO's slander of title claim.
Basis: This request assures Novell of an easier defense to the SoT claim. They
cite Supreme Court cases including the recent Citizen's United v FEC decided
this year. This raises a freedom of speech issue. This means that SCO has to
prove actual malice --that Novell deliberately stated injurious falsehoods about
who owned the Unix copyrights or with reckless disregard for the truth.
Comment: This should be a slam dunk. With the APA in reasonable contention it
is impossible to say what the truth will be let alone make falsehoods about the
officially unknown. The First Amendment allows everyone to make their claim
even if it is wishful as long as it has a reasonable basis.
Prediction: Score this for Novell, 1-1-0.
******************
Novell Motion in Limine No. 3 a ruling that SCO is required to prove
"actual malice" under the First Amendment ("constitutional
malice") because SCO injected itself into the public controversy about
SCO's alleged UNIX rights and thus became a "limited purpose public
figure."
Basis: As discussed above, this makes SCO have to prove malice. SCO
deliberately went public and ignited a firestorm of controversy. They even made
a star of GL. SCO created the controversy, a war on Linux, and thrust itself at
the forefront.
Comment: This should be easy to show. They can even cite the SCO shills like
O'Gara and such to cinch the public nature of it all.
Prediction: Novell wins, 1-2-0.
******************
Novell Motion in Limine No. 4 to preclude SCO from presenting any evidence or
argument to contest rulings that Novell's statements reflect a "good faith
interpretation" of the contracts and were not "objectively
unreasonable."
Basis: Novell bases this on the mandate rule and the law of the case which SCO
and Judge just used against Novell in the Rule 60(b) motion. There is danger
here of going into what the Court of Appeal's decision implies. Judge Stewart
doesn't seem to be the sort for that. This request obliterates Slander of
Title. Spending time on that would be a waste of time.
Comment: No doubt Judge Stewart would like to send this putrid pile back to the
Court of Appeals to sort out their own mess. Judge McConnell who wrote their
decision is gone. He should have dotted as many i's and crossed as many t's as
Kimball did. This may be another test for bias for the Court. Stewart can be
hard-nosed and agree with this, or he can be hard-nosed and say the Court of
Appeals wants the jury to decide.
Prediction: Let's keep it fast and simple in the Court's style. It is the law
of the case. Why change it? Away with Slander of Title, Novell wins another,
1-3-0.
******************
Novell Motion in Limine No. 5 TO PRECLUDE SCO FROM RELYING ON NOVELLS JUNE AND
AUGUST 2003 STATEMENTS AS FACTUAL ASSERTIONS OF COPYRIGHT OWNERSHIP.
Basis: Novell says that several statements interpreted as slander of title,
don't. Novell denies that they specifically address copyrights or their
ownership. They challenge SCO statements. These questions of law are for the
Court. "Whether a statement is reasonably capable of a wrongful meaning is
a question of law for the Court. West v. Thomson Newspapers, 872 P.2d 999, 1008
(Utah 1994)."
Comment: If we stick with Stewart's fast and simple leanings, he grants this.
However he also has a mandate to let the jury decide. He is also trending to
Novell. He may not want to run the risk that Kimball took of taking things from
the jury. This aparently drives the Court of Appeals to unreasonable ends.
Prediction: He will opt to let the jury figure this one out under the
circumstances. If it implies copyrights, then so be it. Let SCO dance a
little. SCO wins, 2-3-0.
******************
Novell 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.
Basis: Novell feels it has a right to express their opinion that they own the
copyrights. "A statement is not actionable if the context makes clear that
"the speaker is expressing a subjective view" or
"interpretation," rather than "claiming to be in possession of
objectively verifiable facts." Haynes v. Alfred A. Knopf, Inc., 8 F.3d
1222, 1227 (7th Cir. 1993)."
Comment: Hell's fire, Novell. What statements are going to be left? Here
again the interests of a fast and simple trial are teetered against the mandate
to let the jury decide.
Prediction: SCO notches another, 3-3-0.
******************
Novell Motion in Limine No. 7 TO DETERMINE THAT COMMON LAW PRIVILEGES APPLY TO
ALLEGEDLY DEFAMATORY PUBLICATIONS
Basis: Novell asserts that these statements are privileged. How else can one
get into a dispute if the statements are not privileged? One can make
privileged defamatory statements in anticipation of a judicial proceeding. They
are also able to make pubications to others to protect that other's interest.
It is their privilige. This is a conditional privilege applied as a question of
law. When it has been abused is a question of fact. "SCO bears the burden
of overcoming the conditional privileges by proof of malice or excessive
publication. Brehany, 812 P.2d at 59." Here's another good one,
"(rival claimants privilege permits the publisher to assert a claim
provided that the assertion is honest and in good faith, even though his belief
is neither correct nor reasonable)."
Comment: This motion would force SCO to prove that Novell acted
"solely" out of malice or bad faith. What a mish-mash! Throw
privilege, conditional, anticipation, question of law, question of fact, abuse,
malice, excessive, honest, good faith, neither correct nor reasonable... No one
can prove anything.
Prediction: This will be in the trial no matter how the Judge rules. Duck and
deny, SCO prevails, 4-3-0.
******************
Novell Motion in Limine No. 8 TO PRECLUDE SCO FROM RELYING ON NOVELL'S
APPLICATIONS FOR COPYRIGHT REGISTRATION
Basis: Novell cites its First Amendment right to petition the Goverment. They
even cite the reversed Judge Kimball:
<blockquote>
Although that grant was reversed on appeal, the fact that Judge Kimball made it
demonstrates that Novell's assertions of ownership in support of its
applications to register those copyrights were not objectively baseless.
</blockquote>
The only way for SCO to overcome this right is to prove an exception of a sham
application. Kimball's ruling for it makes it arguable at least and far from a
sham.
Comment: This escalates SCO's burden to having to prove a sham. Novell wants
to keep this out of the trial. It must show a weakness in that Novell is
applying for copyrights after SCO. One would have assumed that Novell already
had the copyrights. Both sides appear to have some concerns about specifity.
Indeed, Some have concluded that Novell has been fighting with one hand tied
back. There has been a lot of pussy-footing around specificity. This ends the
slander of title motions. Slander of title has been handled awkwardly
throughout. Novell had it moved to Federal Court due to copyright jurisdiction.
Kimball has steadfastly refused to dismiss SoT despite requests and a valid
copyright issue.
Prediction: The Judge will agree with the law, but admit it and limit it's
purpose. This result would favor SCO, but we'll call it a tie since it will
limit SCO's argument weaken their claim. Tie, 4-3-1.
******************
Novell Motion in Limine No. 9 to Preclude SCO from Contesting that Agreements
that Post-Date the APA May Constitute SVRX Licenses
Basis: The Court of Appeals affirmed Kimball's verdict and judgment so far as
the SUN license is concerned. This is a post APA license. It is the law of the
case unreversed and undisturbed by the Court of Appeals. The issue that remains
is the scope of various agreements i.e. do various include SVRX Licences per the
APA.
Comment: This takes away a defense SCO has, and a jury trial, on an important
issue. It essentially leaves them arguing over how much they owe. SCO will
squirm. Very crafty of Novell to broaden what the Appeals Court left them.
Prediction: Novell finessed this one. It's the low ground for SCO. Score for
Novell, 4-4-1.
******************
Novell Motion in Limine No. 10 to Preclude SCO from Presenting Argument Relating
to Issues Stayed Pending Arbitration
Basis: SCO's claims that relate to SUSE Linux were stayed pending arbitration.
The parties then stipulated what SCO claims were also stayed by the Judge
Kimball's stay. Nothing has changed this situation. Remember the arbitration
has been stayed by the Bankruptcy Court because SCO wants to maintain their
nuisance value which would be damaged, if not eliminated, by the feared loss of
many claims in arbitration. They are in arbitration over a contract they all
promised to share and share alike of the IP in question and more.
Comment: Novell wants to educate the new Judge on this feature so that when SCO
brings it up he can stomp it. They win just by filing it. This keeps Linux out
of the case. The astounding thing is that win or lose, SCO will need to win the
arbitration before they can do anything. In other words what SCO claims was
stolen in the lawsuit, they may have kissed away by the agreement in
arbitration. It should inspire mild perturbation in the new Judge that his
laborious trial may be of no consequence. Could Judge Stewart revisit this
stay? Would Gross of bankruptcy have anything to way about it?
Prediction: Stay out of judicil navels. Another slam dunk for Judge Stewart.
This will keep it fast and simple. Less is more. Score one for Novell
winnowing. 4-5-1.
******************
Novell Motion in Limine No. 11 to Exclude Evidence of Substantial Performance
Basis: SCO has to prove substantial performance of the APA to collect on
contract claims. Novell points out that SCO did not plead substantial
performance. They point out that it is the law of the case as found by Judge
Kimball AND the Tenth Circuit that
SCO did not perform according to the APA in the 2003 Sun Agreement. This issue
is precluded if law of the case does not apply. They do not have to retry it.
Novell may be stretching specific findings in part to the whole. Substantial
varies when there are years involved.
Comment: This is a haymaker that would knock out two claims like a summary
judgment. This may make SCO wish to go back to the Tenth Circuit for
clarification. It's amazing how much juice Novell can squeeze from a lost
appeal, an orange one at that. SCO must argue that substantial performance is
for the jury to decide as per the spirit of the McConnell's Mandate. [He wrote
the Tenth Circuit decision as he left the Court.] You have to hand it to
Kimball. He was detailed and exhaustive. He also gave SCO some slack. The
Tenth Circuit couldn't completely unravel him. How do you reverse a split
decision? It's clearly a mixed bag.
Prediction: It's hard to guage this one without the opposition. The issue of
"substantial" may be broader than a finding in one deal. Let the jury
try. SCO hangs on, 5-5-1.
******************
Novell Motion in Limine No. 12 to Exclude Certain Testimony from William
Broderick for Lack of Personal Knowledge and Violation of Parol Evidence Rule
filed
Basis: Novell says that Mr. Broderick does not have personal knowledge and that
he can't contradict the clear language of the APA, "no copyrights."
The latter violates the parol evidence rule which excludes oral evidence that
contradicts a clear document. They also attack him as a lay witness drawing
legal conclusions.
Comment: Remember Kimball heard this testimony, then ruled it inadmissible. He
then included it in his decision saying that if he admitted it, it wouldn't have
changed the outcome. This is an area of some difficulty for Novell. The Tenth
Circuit decided to tret the APA and Amendment as one, ambiguous, and
interpretable by all, except Judge Kimball. They want the jury to hear it and
all but ruled this admissible. Novell still must move. It gives Stewart a
shot, preserves the issue for the next appeal, and they may win some limits.
For example he may not be permitted to contradict the APA for that first year.
Novell's lawyer is quite eloquent in this area. One never hears about the Santa
Cruz lawyer. SCO is hiding behind the attorney-client privilege. The Santa
Cruz Lawyer could resolve this whole case if he corroborates the Novell lawyer.
Truth is secondary to the attorney-client privilege. The world has to have the
utmost confidence in paying and confiding in their lawyers. Rules 1 and 2.
This is a tough call for Stewart with the Tenth Circuit breathing down his neck.
It's hot and it smells funny. It may take some courage and confidence to grant
this one like Kimball did.
Prediction: He will accede to the Tenth Circuit and deny. SCO up, 6-5-1.
******************
Novell Motion in Limine No. 13 to Exclude Certain Testimony From Lawrence
Bouffard for Lack of Personal Knowledge and Violation of Parol Evidence Rule
Basis: See No. 12.
Comment: See No. 12.
Prediction: SCO. 7-5-1.
******************
Novell Motion in Limine No. 14 to Exclude Certain Testimony from Jean Acheson
for Lack of Personal Knowledge and Violation of Parol Evidence Rule
Basis: There may be some factual distinctions that could vary the
admissibility.
Comment: See No. 12.
Prediction: SCO again, 8-5-1.
******************
Novell Motion in Limine No. 15 to Exclude Certain Testimony from Robert
Frankenberg for Lack of Personal Knowledge and Violation of Parol Evidence Rule
Basis: See 12.
Comment: See 12.
Prediction: See 12. 9-5-1.
*****************
Novell Motion in Limine No. 16 to Exclude Certain Testimony from R. Duff
Thompson for Lack of Personal Knowledge and Violation of Parol Evidence Rule
Basis: See 12
Comment: see 12
Prediction: see 12, 10-5-1.
*****************
Novell Motion in Limine No. 17 to Exclude Certain Testimony from Ty Mattingly
for Lack of Personal Knowledge and Violation of Parol Evidence Rule
Basis: see 12
Comment: see 12
Prediction: See 12. 11-5-1
*****************
Novell Motion in Limine No. 18 to Exclude Certain Testimony from Douglas Michels
for Lack of Personal Knowledge and Violation of Parol Evidence Rule
Basis: see 12
Comment: see 12
Prediction: See 12. 12-5-1
*****************
Novell Motion in Limine No. 19 to Exclude Certain Testimony from Edward Chatlos,
Burt Levine, and Kim Madsen for Lack of Personal Knowledge
Basis: see 12
Comment: see 12
Prediction: See 12. 13-5-1
*****************
**************---SCO's Motions in Limine---*******************
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 Novells 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.
Combined score: 14-7-3
~webster~[ Reply to This | # ]
|
| |
| Authored by: eric76 on Wednesday, February 10 2010 @ 10:38 PM EST |
Many of the copyrights are owned by parties other than Novell and/or SCO.
Is it likely that the judge may, in the absence of claims of ownership of those
copyrights, end up deciding that either Novell or SCO owns them?
Is the reason that we don't see other parties disputing the copyright claims
from SCO because it would likely cost more to make the claims than they are
actually worth?[ Reply to This | # ]
|
| |
| Authored by: jjock on Wednesday, February 10 2010 @ 10:42 PM EST |
Case 2:04-cv-00139-TS Document 640 Filed
02/08/2010 Page 1 of 5
WORKMAN | NYDEGGER A PROFESSIONAL CORPORATION
Sterling A. Brennan (Utah State Bar No. 10060; E-mail:
sbrennan@wnlaw.com)
David R. Wright (Utah State Bar No. 5164: E-mail:
dwright@wnlaw.com)
Kirk R. Harris (Utah State Bar No. 10221; E-mail:
kharris@wnlaw.com)
Cara J. Baldwin (Utah State Bar No. 11863; E-mail:
cbaldwin@wnlaw.com)
1000 Eagle Gate Tower
60 E. South Temple
Salt Lake City, Utah 84111
Telephone: (801) 533-9800
Facsimile: (801) 328-1707
MORRISON & FOERSTER LLP
Michael A. Jacobs (Admitted Pro Hac Vice; E-mail:
mjacobs@mofo.com)
Eric M. Acker (Admitted Pro Hac Vice; E-mail:
eacker@mofo.com)
Grant L. Kim (Admitted Pro Hac Vice; E-Mail: gkim@mofo.com)
425 Market Street
San Francisco, California 94105-2482
Telephone: (415) 268-7000
Facsimile: (415) 268-7522
Attorneys for Defendant and Counterclaim-Plaintiff Novell, Inc.
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
THE SCO GROUP, INC., a Delaware Case No.
2:04CV00139
corporation,
NOVELL'S MOTION IN LIMINE
Plaintiff, NO. 15: TO EXCLUDE CERTAIN
TESTIMONY FROM ROBERT
vs. FRANKENBERG FOR LACK OF
PERSONAL KNOWLEDGE AND
NOVELL, INC., a Delaware corporation, VIOLATION OF
PAROL EVIDENCE
RULE
Defendant.
Judge Ted Stewart
AND RELATED COUNTERCLAIMS.
Case 2:04-cv-00139-TS Document 640 Filed
02/08/2010 Page 2 of 5
Pursuant to Federal Rules of Evidence 602 and 701,
defendant Novell, Inc. respectfully
moves the Court in limine to exclude the testimony of lay
witness Robert Frankenberg regarding
the meaning of the copyright ownership provisions of the Asset
Purchase Agreement ("APA")
and Amendment 2 of the APA. As explained below, Mr.
Frankenberg lacks personal knowledge
to speak on the copyright ownership provisions and is,
therefore, barred by Rule 602 from
offering testimony on that subject. Additionally, to the extent
that such testimony interprets and
contradicts the clear language of the APA, it constitutes
inadmissible parol evidence.
I. MR. FRANKENBERG LACKS PERSONAL KNOWLEDGE TO
SPEAK ON THE
COPYRIGHT OWNERSHIP PROVISIONS OF THE APA AND
AMENDMENT 2
Under Rule 602, "[a] witness may not testify to a matter
unless evidence is introduced
sufficient to support a finding that the witness has personal
knowledge of the matter. Fed. R.
Evid. 602; Zokari v. Gates, 561 F.3d 1076, 1089 (10th Cir. 2009)
(affirming district court’s
ruling excluding testimony of witness who lacked personal
knowledge of matters relevant to
trial). Under the personal knowledge standard, testimony is
inadmissible if "the witness could
not have actually perceived or observed that which he testifies
to." Argo v. Blue Cross & Blue
Shield of Kan., Inc., 452 F.3d 1193, 1200 (10th Cir. 2006)
(citations omitted) ("'statements of
mere belief' in an affidavit must be disregarded").
Moreover, a lay witness may not testify as to matters which
call for a legal conclusion,
such as the interpretation and effect of a contract or an
amendment thereto. See, e.g.,
Evangelista v. Inlandboatmen’s Union of the Pac., 777 F.2d
1390, 1398 n.3 (9th Cir. 1985)
(opinion of union chairman as to correct construction of
collective bargaining agreement was
inadmissible because it was a legal conclusion).
Mr. Frankenberg lacks personal knowledge to testify as a
lay witness about the intended
meaning of the copyright ownership provisions of the APA and
whether the APA transferred the
UNIX and UnixWare copyrights to Santa Cruz. As CEO of Novell
at the time the APA was
1
Case 2:04-cv-00139-TS Document 640 Filed
02/08/2010 Page 3 of 5
drafted, Mr. Frankenberg testified that he did not draft the
agreement, but instead relied on the
negotiation team and lawyers to implement the intellectual
property provisions of the deals. (Ex.
15A (Frankenberg Dep.) at 7:4-12, 73:10-18). Mr. Frankenberg
testified that he did not review
all of the provisions when he signed the APA, and that he does
not specifically recall looking at
the schedules of included and excluded assets. (Id. at
113:10-16, 68:9-21.) Mr. Frankenberg
signed the APA on the recommendation of Novell's negotiating
team, much like he has in the
"[a]t least hundreds, if not more" transactions that he has
concluded as a high-ranking executive
in computer companies. (Id. at 68:9-69:6.) Thus, while Mr.
Frankenberg has personal
knowledge of the instructions he initially gave to the negotiating
team, he does not have personal
knowledge of the APA negotiations themselves or the drafters'
intended meaning of the
language in the APA.
Nothwithstanding his lack of firsthand knowledge of the
meaning of the APA (as distinct
from his knowledge of the high level business strategy behind
the APA), Mr. Frankenberg
offered inadmissible speculation throughout his deposition as to
the intended meaning of the
copyright provisions of the APA. For instance, he agreed that in
retrospect, the APA could have
been drafted more clearly (id. at 156:9-17 ("[a]t the present
time, now that you've had a chance
to see a variety of issues that have arisen . . .")) and that it
does not accurately reflect his personal
intent with regard to which copyrights were retained or
transferred. (Id. at 83:13-84:8.)1
Mr. Frankenberg also speculated and provided inadmissible
legal conclusions as to how the
APA's copyright provisions might contradict the license back
provisions in the APA and the
Technology License Agreement. (See, e.g., id. at 66:8-22,
105:11-106:5.)
Mr. Frankenberg also lacks personal knowledge of the
intent and meaning of Amendment
2, because he was not employed by Novell or SCO at the time it
was negotiated.
1
Notably, Mr. Frankenberg also testified that he believed the
APA was well-drafted when he signed
it and a highly accurate reflection of the parties’ intent at the
time. (Id. at 71:13-72:17, 68:18-21.)
2
Case 2:04-cv-00139-TS Document 640 Filed
02/08/2010 Page 4 of 5
Mr. Frankenberg left his employment at Novell in August of
1996, and testified that he has no
information from the actual negotiators of Amendment 2 about
their intent. (Id. at 86:4-16.) In
fact, Mr. Frankenberg had not read Amendment 2 until he was
preparing for his deposition in
this litigation, taken in 2007. (Id.)
II. PAROL EVIDENCE IS INADMISSIBLE WITH REGARD TO THE
CLEAR
LANGUAGE OF THE APA
The parol evidence rule is a substantive rule of law that
functions to exclude evidence
contradicting the terms of an integrated agreement. EPA Real
Estate P'ship v. Kang, 12 Cal.
App. 4th 171, 175-176 (1992). The Tenth Circuit in this case
explained that extrinsic evidence
"can only be used to expose or resolve a latent ambiguity in the
language of the agreement
itself," and that the language of the APA itself - without regard
to Amendment No. 2 -
"unambiguously excludes the transfer of copyrights" because
Schedule 1.1(b) "explains
straightforwardly that 'all copyrights' were excluded from the
transaction." SCO Group, Inc. v.
Novell, Inc., 578 F.3d 1201, 1210 (10th Cir. 2009). While the
appellate court ruled that
"extrinsic evidence of the business negotiators' intent
concerning the transaction" is admissible
(id. at 1211), testimony interpreting and contradicting the
specific unambiguous terms of the
APA should be excluded as improper parol evidence. Any such
testimony from
Mr. Frankenberg interpreting the APA's unambiguous copyright
exclusion provisions - as
distinct from testimony concerning the general business intent
behind the APA - should be
excluded.
III. CONCLUSION
For the reasons stated herein, Novell moves to exclude the
testimony of Mr. Frankenberg
regarding the intended meaning of the copyright ownership
provisions of the APA and
Amendment 2.
3
Case 2:04-cv-00139-TS Document 640 Filed 02/08/2010
Page 5 of 5
DATED: February 8, 2010 Respectfully submitted,
By: /s/ Sterling A. Brennan
WORKMAN NYDEGGER
MORRISON & FOERSTER LLP
Attorneys for Defendant and
Counterclaim-Plaintiff Novell, Inc.
4
[ Reply to This | # ]
|
| |
| Authored by: jjock on Wednesday, February 10 2010 @ 11:15 PM EST |
Case 2:04-cv-00139-TS Document 639 Filed
02/08/2010 Page 1 of 4
WORKMAN | NYDEGGER A PROFESSIONAL CORPORATION
Sterling A. Brennan (Utah State Bar No. 10060; E-mail:
sbrennan@wnlaw.com)
David R. Wright (Utah State Bar No. 5164: E-mail:
dwright@wnlaw.com)
Kirk R. Harris (Utah State Bar No. 10221; E-mail:
kharris@wnlaw.com)
Cara J. Baldwin (Utah State Bar No. 11863; E-mail:
cbaldwin@wnlaw.com)
1000 Eagle Gate Tower
60 E. South Temple
Salt Lake City, Utah 84111
Telephone: (801) 533-9800
Facsimile: (801) 328-1707
MORRISON & FOERSTER LLP
Michael A. Jacobs (Admitted Pro Hac Vice; E-mail:
mjacobs@mofo.com)
Eric M. Acker (Admitted Pro Hac Vice; E-mail:
eacker@mofo.com)
Grant L. Kim (Admitted Pro Hac Vice; E-Mail: gkim@mofo.com)
425 Market Street
San Francisco, California 94105-2482
Telephone: (415) 268-7000
Facsimile: (415) 268-7522
Attorneys for Defendant and Counterclaim-Plaintiff Novell, Inc.
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
THE SCO GROUP, INC., a Delaware Case No.
2:04CV00139
corporation,
NOVELL'S MOTION IN LIMINE
Plaintiff, NO. 14: TO EXCLUDE CERTAIN
TESTIMONY FROM JEAN
ACHESON
vs. FOR LACK OF PERSONAL
KNOWLEDGE AND VIOLATION OF
NOVELL, INC., a Delaware corporation, PAROL EVIDENCE
RULE
Defendant. Judge Ted Stewart
AND RELATED COUNTERCLAIMS.
Case 2:04-cv-00139-TS Document 639 Filed
02/08/2010 Page 2 of 4
Pursuant to Federal Rules of Evidence 602 and 701,
defendant Novell, Inc. respectfully
moves the Court in limine to exclude the testimony of lay
witness Jean Acheson regarding the
intended meaning of the copyright ownership provisions of the
Asset Purchase Agreement
("APA") and Amendment 2 of the APA. As explained below, Ms.
Acheson lacks personal
knowledge to speak on the copyright ownership provisions and
is, therefore, barred by Rule 602
from offering testimony on that subject. Additionally, to the
extent that such testimony interprets
and contradicts the clear language of the APA, it constitutes
inadmissible parol evidence.
I. MS. ACHESON LACKS PERSONAL KNOWLEDGE TO SPEAK
ON THE
COPYRIGHT OWNERSHIP PROVISIONS OF THE APA AND
AMENDMENT 2
Under Rule 602, "[a] witness may not testify to a matter
unless evidence is introduced
sufficient to support a finding that the witness has personal
knowledge of the matter." Fed. R.
Evid. 602; Zokari v. Gates, 561 F.3d 1076, 1089 (10th Cir. 2009)
(affirming district court ruling
excluding testimony of witness who lacked personal knowledge
of matters relevant to trial).
Under the personal knowledge standard, testimony is
inadmissible if "the witness could not have
actually perceived or observed that which he testifies to." Argo
v. Blue Cross & Blue Shield of
Kan., Inc., 452 F.3d 1193, 1200 (10th Cir. 2006) (citations
omitted) ("'statements of mere belief'
in an affidavit must be disregarded").
Moreover, a lay witness may not testify as to matters which
call for a legal conclusion,
such as the interpretation and effect of a contract or an
amendment thereto. See, e.g.,
Evangelista v. Inlandboatmen's Union of the Pac., 777 F.2d
1390, 1398 n.3 (9th Cir. 1985)
(opinion of union chairman as to correct construction of
collective bargaining agreement was
inadmissible because it was a legal conclusion).
Ms. Acheson lacks personal knowledge to testify as a lay
witness about the intended
meaning of the copyright ownership provisions of the APA and
whether the APA transferred the
UNIX and UnixWare copyrights to Santa Cruz. Around the time
of the APA, Ms. Acheson was
1
Case 2:04-cv-00139-TS Document 639 Filed
02/08/2010 Page 3 of 4
a revenue manager for Novell and then very soon thereafter,
was hired by Santa Cruz. (Ex. 14A
(Acheson Dep.) at 18:14-19:12.) Ms. Acheson was not involved
in the drafting or negotiating of
the APA and has no firsthand knowledge of its intended
meaning:
Q. Did you have any role in negotiating the Asset
Purchase
Agreement between Novell and Santa Cruz?
A. No. Not directly on the first part. That was held way,
you
know, closely from any of the employees. The
transition team
may have shaped some of what went into the later
addendums as
we worked on trying to understand the APA.
(Id. at 20:23-21:13 (the negotiations were kept "highly
confidential"), 66:20-22 (same).).
Despite her lack of personal knowledge, Ms. Acheson
offered inadmissible hearsay about
the meaning of the APA, based on statements made by others
at a company-wide meeting and
various smaller meetings in the months following the
transaction. (E.g., id. at 298:21-299:22 ("a
lot of various things were discussed" and that she "[doesn't]
remember any particular person"
making certain statements), 63:15-65:13, 267:2-268:16.) From
the company-wide meeting
where specifics were not discussed (id. at 61:25-62:15), Ms.
Acheson asserts that "it was just
understood" that Novell had transferred its intellectual property
to SCO. (Id. at 274:2-14, 270:5-
20 ("Novell had sold the entire UNIX product line and its assets,
its intellectual property"),
270:22-271:2 (agreeing that Novell retained the right to SVRX
binary royalties).)
Additionally, Ms. Acheson lacks personal knowledge of the
intent and meaning of
Amendment 2. When asked about her involvement with either
of the amendments to the APA,
Ms. Acheson did not say she had any involvement in
Amendment 2 and only testified about her
limited involvement in Amendment 1. (Id. at 21:14-23:15 (the
transition team she was a part of
"probably would have requested clarifications" that "may have
influenced some of the
clarifications" in Amendment 1, but she "didn't sit and say, 'Oh,
we need to change this or we
2
Case 2:04-cv-00139-TS Document 639 Filed
02/08/2010 Page 4 of 4
need to change that."').) As Ms. Acheson lacks firsthand
knowledge of the intent and meaning
of Amendment 2, her testimony on these topics constitutes
inadmissible opinion testimony.
II. PAROL EVIDENCE IS INADMISSIBLE WITH REGARD TO THE
CLEAR
LANGUAGE OF THE APA
The parol evidence rule is a substantive rule of law that
functions to exclude evidence
contradicting the terms of an integrated agreement. EPA Real
Estate P'ship v. Kang, 12 Cal.
App. 4th 171, 175-176 (1992). The Tenth Circuit in this case
explained that extrinsic evidence
"can only be used to expose or resolve a latent ambiguity in the
language of the agreement
itself," and that the language of the APA itself - without regard
to Amendment 2 -
"unambiguously excludes the transfer of copyrights" because
Schedule 1.1(b) "explains
straightforwardly that 'all copyrights' were excluded from the
transaction." SCO Group, Inc. v.
Novell, Inc., 578 F.3d 1201, 1210 (10th Cir. 2009). While the
appellate court ruled that
"extrinsic evidence of the business negotiators' intent
concerning the transaction" is admissible
(id. at 1211), testimony interpreting and contradicting the
specific unambiguous terms of the
APA should be excluded as improper parol evidence. Any such
testimony from Ms. Acheson
interpreting the APA's unambiguous copyright exclusion
provisions - as distinct from testimony
concerning the general business intent behind the APA - should
be excluded.
III. CONCLUSION
For the reasons stated herein, Ms. Acheson's testimony
regarding the intended meaning
of the copyright ownership provisions of the APA and
Amendment 2 should be excluded.
DATED: February 8, 2010 Respectfully submitted,
By: /s/ Sterling A. Brennan
WORKMAN NYDEGGER
MORRISON & FOERSTER LLP
Attorneys for Defendant and
Counterclaim-Plaintiff Novell, Inc.
[ Reply to This | # ]
|
| |
| Authored by: bugstomper on Thursday, February 11 2010 @ 12:07 AM EST |
| NOVELL'S MOTION IN LIMINE
NO. 9 TO PRECLUDE SCO FROM
CONTESTING THAT
AGREEMENTS
THAT POST-DATE THE APA MAY
CONSTITUTE SVRX LICENSES
Judge
Kimball held, as a matter of law, that "SVRX Licenses" in the Asset
Purchase
Agreement ("APA") are not limited to license agreements in
existence at the time of the APA.
SCO appealed this issue and the Tenth
Circuit upheld Judge Kimball's determination. Therefore,
the law of the case
precludes SCO from presenting any evidence or argument contrary to
this
ruling.
I. UNDISPUTED FACTS
In October 2006, Novell
moved for summary judgment on its claims for breach of
fiduciary duty and
conversion based on SCO's retention of certain payments SCO received
under
its 2003 license agreements with Sun Microsystems and Microsoft
Corporation that Novell
contended constituted "SVRX Royalties" under the
APA. (Mem. ISO Novell's Mot. for Partial
Summ. J. or Preliminary Inj., Dkt.
No. 155 (under seal).) In its opposition and cross motion for
partial
summary judgment, SCO argued that Novell's interest in SVRX Royalties was
limited to
SVRX Licenses in existence at the time of the APA. (Mem. In Opp'n
to Mot. for Partial Summ.
J. or Preliminary Inj. at 35-37, Dkt. No. 183
(under seal).) Novell replied that there is no basis
in the APA for any
temporal limitation on SVRX Licenses. (Novell's Reply to Opp'n at 4-5,
Dkt.
No. 205 (under seal).)
In August 2007, Judge Kimball granted summary
judgment for Novell on its claims for
breach of fiduciary duty and
conversion. (Order at 96, Dkt. No. 377.) Judge Kimball considered
SCO's
argument that the term "SVRX Licenses" refers only to licenses in existence at
the time
of the APA and rejected it as a matter of law, concluding that
"there is no limitation in the APA
to `then-existing' SVRX Licenses."
(Id. at 90-93.) SCO appealed this issue and the Tenth
Circuit
affirmed Judge Kimball's ruling with respect to SCO's liability from its 2003
agreement
with Sun. In so doing, the Tenth Circuit "agree[d] with the
district court that agreements that
post-date the APA may constitute SVRX
Licenses." The SCO Group, Inc. v. Novell, Inc., 578
F.3d 1201, 1227
(10th Cir. 2009).
1
Under the 10th Circuit's limited mandate, the only
issue to be resolved regarding "SVRX
Licenses" is whether that term refers
to "all three types of agreements bearing upon the licensing
of SVRX
technology -- software agreements, sublicensing agreements, and product
supplement
agreements (or Product Schedule Licenses) -- or just to product
supplement agreements." SCO
Group, 578 F.3d at 1219.
II. SCO
SHOULD BE PRECLUDED FROM CONTESTING THAT SVRX LICENSES MAY INCLUDE POST-APA
AGREEMENTS
The law of the case doctrine precludes SCO from contesting
matters that have been
decided as a matter of law. Mason v. Texaco,
Inc., 948 F.2d 1546, 1553 (10th Cir. 1991)
("[W]hen a court decides upon
a rule of law, that decision should continue to govern the same
issues in
subsequent stages in the same case") (quoting Arizona v. California, 460
U.S. 605, 618
(1983)). This principle applies to all "issues previously
decided, either explicitly or by necessary
implication." Rohrbaugh v.
Celotex Corp., 53 F.3d 1181, 1183 (10th Cir. 1995)
(citation
omitted).
In this case, Judge Kimball explicitly decided that
SVRX Licenses are not limited to
agreements in existence at the time of the
APA. The Tenth Circuit affirmed this ruling, leaving
open only the issue of
whether SVRX License includes all three types of agreements bearing on
the
licensing of SVRX technology, or are instead limited to just product supplement
agreements.
Therefore, the Court should preclude SCO from contesting that
license agreements that post-date
the APA may constitute "SVRX
Licenses."
2
[ Reply to This | # ]
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| Authored by: bugstomper on Thursday, February 11 2010 @ 12:35 AM EST |
| NOVELL'S MOTION IN LIMINE
NO. 12: TO EXCLUDE CERTAIN
TESTIMONY FROM
WILLIAM
BRODERICK FOR LACK OF
PERSONAL KNOWLEDGE AND
VIOLATION OF PAROL
EVIDENCE
RULE
Pursuant to Federal Rules of Evidence 602 and 701,
defendant Novell, Inc. respectfully
moves the Court in limine to exclude the
testimony of lay witness William Broderick regarding
the intended meaning of
the copyright ownership provisions of the Asset Purchase Agreement
("APA")
and Amendment 2 of the APA. As explained below, Mr. Broderick lacks
personal
knowledge to speak on the copyright ownership provisions and is,
therefore, barred by Rule 602
from offering testimony on that subject.
Additionally, to the extent that such testimony interprets
and contradicts
the clear language of the APA, it constitutes
inadmissible parol
evidence.
I. MR. BRODERICK LACKS PERSONAL KNOWLEDGE TO SPEAK ON THE
COPYRIGHT OWNERSHIP PROVISIONS OF THE APA AND AMENDMENT 2
Under Rule
602, "[a] witness may not testify to a matter unless evidence is
introduced
sufficient to support a finding that the witness has personal
knowledge of the matter." Fed. R.
Evid. 602; Zokari v. Gates, 561
F.3d 1076, 1089 (10th Cir. 2009) (affirming district court ruling
excluding
testimony of witness who lacked personal knowledge of matters relevant to
trial).
Under the personal knowledge standard, testimony is inadmissible if
"the witness could not have
actually perceived or observed that which he
testifies to." Argo v. Blue Cross & Blue Shield of
Kan., Inc.,
452 F.3d 1193, 1200 (10th Cir. 2006) (citations omitted) ("`statements of mere
belief'
in an affidavit must be disregarded").
Moreover, a lay witness
may not testify as to matters which call for a legal conclusion,
such as the
interpretation and effect of a contract or an amendment thereto. See,
e.g.,
Evangelista v. Inlandboatmen's Union of the Pac., 777 F.2d
1390, 1398 n.3 (9th Cir. 1985)
(opinion of union chairman as to correct
construction of collective bargaining agreement was
inadmissible because it
was a legal conclusion).
Mr. Broderick lacks personal knowledge to testify
as a lay witness about the intended
meaning of the copyright ownership
provisions of the APA and whether the APA transferred the
UNIX and UnixWare
copyrights to Santa Cruz. Around the time the APA
was negotiated,
Mr.
1
Broderick worked for Novell as a contracts manager. (Ex. 12A
(Broderick Dep.) at 23:18-24:24,
33:8-11.) Mr. Broderick plainly admits that
he had no involvement in negotiating the APA. (Id.
at 158:5-7 ("Q:
And did you have any involvement at all in negotiating the APA? A: No, I
did
not."); id. at 152:14-153:11 ("... I didn't write it. I don't
know if there are any kind of legal
nuances that you're trying to get
at.").) In fact, Mr. Broderick could not recall there ever being a
specific
discussion of copyrights during the APA transition, and instead relies on an
assumption
he made from attending company-wide meetings. (Id.
at 48:6- 51:8 ("There was no specific
discussion of copyrights . . . they
were not specifically addressed in any of our discussions,
because it was
just assumed totally illogical for copyrights not to go with the source code
if
you're selling all title, right and interest in the source
code.").)
Mr. Broderick offered inadmissible speculation throughout his
deposition that the
intended meaning of the APA was to transfer the UNIX and
UnixWare copyrights. (E.g., id. at
57:19-58:24; 138:2-15 ("it's
strongly inferred"); 159:7-15 (Novell "knew that the copyrights
went with
the technology when they sold the UNIX business to Santa Cruz.").) Because he
has
no percipient knowledge, Mr. Broderick theorizes, "why . . . did they
sign a technology license
agreement . . . there would be no reason for them
to take a license for the product." (Id. at 108:6-
110:14.) Mr.
Broderick offered inadmissible opinions about what the APA means since he
did
not draft or negotiate it. (Id. at 112:25-113:23 ("I don't see
the word copyright on schedule 1.1A,
but as I stated earlier on the assets
being sold . . . To me, this says copyrights went. That's my
opinion.");
id. at 122:25-123:7 ("and it's my opinion that
copyrights
went.").)
Additionally, Mr. Broderick lacks personal knowledge of
the intent and meaning of
Amendment 2 and plainly admits that he had no
involvement with it. (Id. at 144:7-16 ("I don't
know for a fact. I
was not in on the negotiation or the writing of Amendment 2.");
158:8-10
("Q: Any involvement at all in negotiating any of the amendments to
the APA? A: No, I did
not.").) Nevertheless, he speculates on its intended
meaning and
purpose. (E.g., id. at 141:10
2
144:16 (stating that
it transferred the copyrights and the reason it was drafted was "because
some
people were reading the [APA] in an improper way" and that
"[a]pparently, there was some
people [sic] that were misinterpreting parts
of the [APA], the excluded assets form.").)
Accordingly, any testimony by
Mr. Broderick about the meaning of Amendment 2 is
inadmissible opinion
testimony.
II. PAROL EVIDENCE IS INADMISSIBLE WITH REGARD TO THE
CLEAR
LANGUAGE OF THE APA
The parol evidence rule is a substantive rule
of law that functions to exclude evidence
contradicting the terms of an
integrated agreement. EPA Real Estate P'ship v. Kang, 12 Cal.
App.
4th 171, 175-176 (1992). The Tenth Circuit in this case explained that extrinsic
evidence
"can only be used to expose or resolve a latent ambiguity in the
language of the agreement
itself," and that the language of the APA itself
without regard to Amendment 2
"unambiguously excludes the transfer of
copyrights" because Schedule 1.1(b) "explains
straightforwardly that `all
copyrights' were excluded from the transaction." SCO Group, Inc.
v.
Novell, Inc., 578 F.3d 1201, 1210 (10th Cir. 2009). While the
appellate court ruled that
"extrinsic evidence of the business negotiators'
intent concerning the transaction" is admissible
(id. at 1211),
testimony interpreting and contradicting the specific unambiguous terms of
the
APA should be excluded as improper parol evidence. Any such testimony
from Mr. Broderick
interpreting the APA's unambiguous copyright exclusion
provisions as distinct from testimony
concerning the general business
intent behind the APA should be excluded. (E.g., Ex.12A
at
92:18-95:1; 103:15-104:15 (stating that "all copyrights" in Schedule
1.1(b) means only Netware
and Tuxedo copyrights); 112:25-113:23 ("this says
copyrights went.").)
III. CONCLUSION
For the reasons stated
herein, Novell moves to exclude the testimony of Mr. Broderick
regarding the
intended meaning of the APA and Amendment 2.
3
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| Authored by: bugstomper on Thursday, February 11 2010 @ 12:57 AM EST |
| NOVELL'S MOTION IN LIMINE NO. 14: TO EXCLUDE CERTAIN TESTIMONY FROM
JEAN
ACHESON FOR LACK OF PERSONAL KNOWLEDGE AND VIOLATION OF PAROL EVIDENCE
RULE
Pursuant to Federal Rules of Evidence 602 and 701, defendant
Novell, Inc. respectfully
moves the Court in limine to exclude the testimony
of lay witness Jean Acheson regarding the
intended meaning of the copyright
ownership provisions of the Asset Purchase Agreement
("APA") and Amendment 2
of the APA. As explained below, Ms. Acheson lacks personal
knowledge to
speak on the copyright ownership provisions and is, therefore, barred by Rule
602
from offering testimony on that subject. Additionally, to the extent
that such testimony interprets
and contradicts the clear language of the
APA, it constitutes
inadmissible parol evidence.
I. MS. ACHESON LACKS
PERSONAL KNOWLEDGE TO SPEAK ON THE COPYRIGHT
OWNERSHIP PROVISIONS OF THE APA AND
AMENDMENT 2
Under Rule 602, "[a] witness may not testify to a matter
unless evidence is introduced
sufficient to support a finding that the
witness has personal knowledge of the matter." Fed. R.
Evid. 602; Zokari
v. Gates, 561 F.3d 1076, 1089 (10th Cir. 2009) (affirming district court
ruling
excluding testimony of witness who lacked personal knowledge of
matters relevant to trial).
Under the personal knowledge standard, testimony
is inadmissible if "the witness could not have
actually perceived or
observed that which he testifies to." Argo v. Blue Cross & Blue Shield
of
Kan., Inc., 452 F.3d 1193, 1200 (10th Cir. 2006) (citations
omitted) ("`statements of mere belief'
in an affidavit must be
disregarded").
Moreover, a lay witness may not testify as to matters which
call for a legal conclusion,
such as the interpretation and effect of a
contract or an amendment thereto. See, e.g.,
Evangelista v.
Inlandboatmen's Union of the Pac., 777 F.2d 1390, 1398 n.3 (9th Cir.
1985)
(opinion of union chairman as to correct construction of collective
bargaining agreement was
inadmissible because it was a legal
conclusion).
Ms. Acheson lacks personal knowledge to testify as a lay
witness about the intended
meaning of the copyright ownership provisions of
the APA and whether the APA transferred the
UNIX and UnixWare copyrights to
Santa Cruz. Around the time of the
APA, Ms. Acheson was
1
a revenue
manager for Novell and then very soon thereafter, was hired by Santa Cruz. (Ex.
14A
(Acheson Dep.) at 18:14-19:12.) Ms. Acheson was not involved in the
drafting or negotiating of
the APA and has no firsthand knowledge of its
intended meaning:
Q. Did you have any role in negotiating the Asset
Purchase
Agreement between Novell and Santa Cruz?
A. No. Not directly on
the first part. That was held way, you
know, closely from any of the
employees. The transition team
may have shaped some of what went into the
later addendums as
we worked on trying to understand the
APA.
(Id. at 20:23-21:13 (the negotiations were kept
"highly
confidential"), 66:20-22 (same).).
Despite her lack of personal
knowledge, Ms. Acheson offered inadmissible hearsay about
the meaning of the
APA, based on statements made by others at a company-wide meeting
and
various smaller meetings in the months following the transaction.
(E.g., id. at 298:21-299:22 ("a
lot of various things were discussed"
and that she "[doesn't] remember any particular person"
making certain
statements), 63:15-65:13, 267:2-268:16.) From the company-wide meeting
where
specifics were not discussed (id. at 61:25-62:15), Ms. Acheson asserts
that "it was just
understood" that Novell had transferred its intellectual
property to SCO. (Id. at 274:2-14, 270:5-
20 ("Novell had sold the
entire UNIX product line and its assets, its intellectual
property"),
270:22-271:2 (agreeing that Novell retained the right to SVRX
binary
royalties).)
Additionally, Ms. Acheson lacks personal knowledge of
the intent and meaning of
Amendment 2. When asked about her involvement with
either of the amendments to the APA,
Ms. Acheson did not say she had any
involvement in Amendment 2 and only testified about her
limited involvement
in Amendment 1. (Id. at 21:14-23:15 (the transition team she was a part
of
"probably would have requested clarifications" that "may have influenced
some of the
clarifications" in Amendment 1, but she "didn't sit and say,
`Oh, we
need to change this or we
2
need to change that.'").) As Ms.
Acheson lacks firsthand knowledge of the intent and meaning
of Amendment 2,
her testimony on these topics constitutes inadmissible
opinion
testimony.
II. PAROL EVIDENCE IS INADMISSIBLE WITH REGARD TO THE
CLEAR
LANGUAGE OF THE APA
The parol evidence rule is a substantive rule
of law that functions to exclude evidence
contradicting the terms of an
integrated agreement. EPA Real Estate P'ship v. Kang, 12 Cal.
App.
4th 171, 175-176 (1992). The Tenth Circuit in this case explained that extrinsic
evidence
"can only be used to expose or resolve a latent ambiguity in the
language of the agreement
itself," and that the language of the APA itself
without regard to Amendment 2
"unambiguously excludes the transfer of
copyrights" because Schedule 1.1(b) "explains
straightforwardly that `all
copyrights' were excluded from the transaction." SCO Group, Inc.
v.
Novell, Inc, 578 F.3d 1201, 1210 (10th Cir. 2009). While the
appellate court ruled that
"extrinsic evidence of the business negotiators'
intent concerning the transaction" is admissible
(id. at 1211),
testimony interpreting and contradicting the specific unambiguous terms of
the
APA should be excluded as improper parol evidence. Any such testimony
from Ms. Acheson
interpreting the APA's unambiguous copyright exclusion
provisions as distinct from testimony
concerning the general business
intent behind the APA should be
excluded.
III. CONCLUSION
For
the reasons stated herein, Ms. Acheson's testimony regarding the intended
meaning
of the copyright ownership provisions of the APA and Amendment 2
should be excluded.
3
[ Reply to This | # ]
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| Authored by: jjock on Thursday, February 11 2010 @ 02:31 AM EST |
Case 2:04-cv-00139-TS Document 641 Filed
02/08/2010 Page 1
of 5
WORKMAN | NYDEGGER A PROFESSIONAL CORPORATION
Sterling A. Brennan (Utah
State Bar No. 10060; E-mail:
sbrennan@wnlaw.com)
David R. Wright (Utah State
Bar No. 5164: E-mail:
dwright@wnlaw.com)
Kirk R. Harris (Utah State Bar No.
10221; E-mail:
kharris@wnlaw.com)
Cara J. Baldwin (Utah State Bar No. 11863;
E-mail:
cbaldwin@wnlaw.com)
1000 Eagle Gate Tower
60 E. South Temple
Salt Lake
City, Utah 84111
Telephone: (801) 533-9800
Facsimile: (801) 328-1707
MORRISON
& FOERSTER LLP
Michael A. Jacobs (Admitted Pro Hac Vice; E-mail:
mjacobs@mofo.com)
Eric M. Acker (Admitted Pro Hac Vice; E-mail:
eacker@mofo.com)
Grant L. Kim (Admitted Pro Hac Vice; E-Mail:
gkim@mofo.com)
425 Market Street
San Francisco, California 94105-2482
Telephone:
(415) 268-7000
Facsimile: (415) 268-7522
Attorneys for Defendant and
Counterclaim-Plaintiff Novell, Inc.
IN THE UNITED
STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL
DIVISION
THE SCO GROUP, INC., a Delaware Case No.
2:04CV00139
corporation,
NOVELL’S MOTION IN LIMINE
Plaintiff,
NO. 16: TO EXCLUDE CERTAIN
TESTIMONY FROM R. DUFF
vs.
THOMPSON FOR LACK OF
PERSONAL
KNOWLEDGE AND
NOVELL, INC., a Delaware corporation, VIOLATION OF
PAROL EVIDENCE
RULE
Defendant.
Judge Ted Stewart
AND RELATED COUNTERCLAIMS.
Case 2:04-cv-00139-TS Document 641
Filed
02/08/2010 Page 2 of 5
Pursuant to Federal Rules of
Evidence 602 and 701,
defendant Novell, Inc. respectfully
moves the Court in
limine to exclude the testimony of lay
witness R. Duff Thompson regarding
the
intended meaning of the copyright ownership provisions of
the Asset Purchase
Agreement
(“APA”) and Amendment 2 of the APA. As explained below,
Mr.
Thompson lacks personal
knowledge to speak on the copyright ownership
provisions and
is, therefore, barred by Rule 602
from offering testimony on
that subject. Additionally, to the
extent that such testimony interprets
and
contradicts the clear language of the APA, it constitutes
inadmissible parol
evidence.
I. MR. THOMPSON LACKS PERSONAL KNOWLEDGE TO SPEAK
ON THE
COPYRIGHT OWNERSHIP PROVISIONS OF THE APA AND
AMENDMENT 2
Under Rule
602, “[a] witness may not testify to a matter
unless evidence is
introduced
sufficient to support a finding that the witness has personal
knowledge of the matter.” Fed. R.
Evid. 602; Zokari v. Gates, 561 F.3d
1076, 1089 (10th Cir. 2009)
(affirming district court’s
ruling excluding
testimony of witness who lacked personal
knowledge of matters relevant
to
trial). Under the personal knowledge standard, testimony is
inadmissible if
“the witness could
not have actually perceived or observed that which he
testifies
to.” Argo v. Blue Cross & Blue
Shield of Kan., Inc., 452
F.3d 1193, 1200 (10th Cir. 2006)
(citations omitted) (“’statements
of
mere belief’ in an affidavit must be disregarded”).
Moreover, a lay witness may not testify as to matters which
call for a legal
conclusion,
such as the interpretation and effect of a contract or an
amendment thereto. See, e.g.,
Evangelista v. Inlandboatmen’s Union of
the Pac., 777 F.2d
1390, 1398 n.3 (9th Cir. 1985)
(opinion of union chairman
as to correct construction of
collective bargaining agreement was
inadmissible
because it was a legal conclusion).
Mr. Thompson lacks personal
knowledge to testify as a lay
witness about the intended
meaning of the
copyright ownership provisions of the APA and
whether the APA transferred
the
UNIX and UnixWare copyrights to Santa Cruz. Mr. Thompson
was Senior Vice
President of
1
Case
2:04-cv-00139-TS Document 641 Filed
02/08/2010 Page 3
of 5
Business Development and Strategic Relations for Novell at the
time
the APA was drafted, and
admits that he relied on others to draft the APA:
Q. By the time of the asset purchase agreement you
are no longer in
a
legal function?
A. No. That’s correct.
Q. And so this -- and so in the -- when you were
involved in the
asset
purchase agreement negotiations, who were you
relying on
for the detailed
drafting of the agreement?
A. Our
counsel, Wilson Sonsini.
Q. Tor Braham in particular?
A. Tor and his team . . . he had people within his firm
who were
specialists
in these items that were probably doing the bulk of
the
actual drafting.
(Ex. 16A (Thompson Dep.) at 30:22-31:12; Ex. 16B (Thompson
Decl.) at 2.). Mr.
Thompson’s role in reviewing the drafters’
work was to “assign
his team to work with them.”
(Ex. 16A at
31:15-32:7). Although he stated that he “saw
drafts” of specific
provisions that had
issues, he did not review drafts of the overall document.
(Id.) Mr.
Thompson does not recall
“any specific discussion around
copyrights” or any “discussion
with SCO about the excluded
asset
schedule” during the negotiation of the APA. (Id. at
24:25-25:5,
86:1-20.) Mr. Thompson’s
direct report, Mr. Ty Mattingly, agreed that Mr.
Thompson
was “checked out” during the
drafting of the APA and was
not involved in the details of the
APA transaction. (Ex. 16C
(Mattingly Dep.)
at 16:18-21, 70:17-71:23 (Mr. Thompson
was “not in the office that
often.”).)
Although Mr. Thompson could not recall a single
conversation he had about the APA’s
intention to transfer copyrights, he
offered inadmissible opinion
testimony throughout his
deposition that the
copyrights did transfer under the
agreement. Mr. Thompson testified that
the
intent of the APA was to transfer the entire UNIX business,
including
copyrights (Ex. 16A at
132:6-133:3), and states that “if we [Novell]
intended not to
transfer the copyrights, we would
have been very careful to
say . . . you get all the business
except the copyrights.” (Id.).
2
Case 2:04-cv-00139-TS
Document 641 Filed
02/08/2010 Page 4 of 5
Additionally, Mr. Thompson lacks personal knowledge of
the intent and meaning
of
Amendment 2. He testified that he was “not given any
information by
either party, by either side
as to how it was being negotiated” and said,
“I have no
recollection that there was any specific
input that I was
asked to give nor that I actually gave that
resulted in the creation of
Amendment
2.” (Id. at 21:8-22:24 (he had excused himself from the
discussions).) Thus, any testimony by
Mr. Thompson about the meaning of
Amendment 2 is
inadmissible opinion testimony.
II. PAROL EVIDENCE IS
INADMISSIBLE WITH REGARD TO THE
CLEAR
LANGUAGE OF THE APA
The
parol evidence rule is a substantive rule of law that
functions to exclude
evidence
contradicting the terms of an integrated agreement. EPA Real
Estate
P’ship v. Kang, 12 Cal. App.
4th 171, 175-176 (1992). The Tenth Circuit
in this case
explained that extrinsic evidence “can
only be used to
expose or resolve a latent ambiguity in the
language of the agreement
itself,” and
that the language of the APA itself – without regard
to
Amendment 2 – “unambiguously
excludes the transfer of
copyrights” because Schedule 1.1
(b) “explains straightforwardly
that ‘all
copyrights’ were excluded from the transaction.”
SCO Group,
Inc. v. Novell, Inc., 578 F.3d 1201,
1210 (10th Cir. 2009). While
the appellate court ruled
that “extrinsic evidence of the
business
negotiators’ intent concerning the transaction” is
admissible (id.
at 1211), testimony interpreting
and contradicting the
specific unambiguous terms of the APA
should be excluded as improper
parol
evidence. Any such testimony from Mr. Thompson
interpreting the APA’s
unambiguous
copyright exclusion provisions – as distinct from testimony
concerning the general business
intent behind the APA – should be
excluded.
III. CONCLUSION
For the reasons stated herein, Novell
moves to exclude the
testimony of Mr. Thompson
regarding the intended meaning
of the copyright ownership
provisions of the APA and
Amendment 2.
3
Case 2:04-cv-00139-TS Document
641 Filed 02/08/2010
Page 5 of 5
DATED: February 8, 2010
Respectfully submitted,
By: /s/ Sterling A.
Brennan
WORKMAN NYDEGGER
MORRISON & FOERSTER LLP
Attorneys
for Defendant and
Counterclaim-Plaintiff Novell,
Inc.
4
[ Reply to This | # ]
|
| |
| Authored by: jjock on Thursday, February 11 2010 @ 02:42 AM EST |
Case 2:04-cv-00139-TS Document 642 Filed
02/08/2010 Page 1
of 5
WORKMAN | NYDEGGER A PROFESSIONAL CORPORATION
Sterling A. Brennan (Utah
State Bar No. 10060; E-mail:
sbrennan@wnlaw.com)
David R. Wright (Utah State
Bar No. 5164: E-mail:
dwright@wnlaw.com)
Kirk R. Harris (Utah State Bar No.
10221; E-mail:
kharris@wnlaw.com)
Cara J. Baldwin (Utah State Bar No. 11863;
E-mail:
cbaldwin@wnlaw.com)
1000 Eagle Gate Tower
60 E. South Temple
Salt Lake
City, Utah 84111
Telephone: (801) 533-9800
Facsimile: (801) 328-1707
MORRISON
& FOERSTER LLP
Michael A. Jacobs (Admitted Pro Hac Vice; E-mail:
mjacobs@mofo.com)
Eric M. Acker (Admitted Pro Hac Vice; E-mail:
eacker@mofo.com)
Grant L. Kim (Admitted Pro Hac Vice; E-Mail:
gkim@mofo.com)
425 Market Street
San Francisco, California 94105-2482
Telephone:
(415) 268-7000
Facsimile: (415) 268-7522
Attorneys for Defendant and
Counterclaim-Plaintiff Novell, Inc.
IN THE UNITED
STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL
DIVISION
THE SCO GROUP, INC., a Delaware Case No.
2:04CV00139
corporation,
NOVELL’S MOTION IN LIMINE
Plaintiff,
NO. 17: TO EXCLUDE CERTAIN
TESTIMONY FROM TY MATTINGLY
vs.
FOR LACK OF PERSONAL
KNOWLEDGE
AND VIOLATION OF
NOVELL, INC., a Delaware corporation, PAROL
EVIDENCE
RULE
Defendant. Judge Ted
Stewart
AND RELATED COUNTERCLAIMS.
Case 2:04-cv-00139-TS
Document 642 Filed
02/08/2010 Page 2 of 5
Pursuant to
Federal Rules of Evidence 602 and 701,
defendant Novell, Inc.
respectfully
moves the Court in limine to exclude the testimony of lay
witness
Ty Mattingly regarding the
intended meaning of the copyright ownership
provisions of the
Asset Purchase Agreement
(“APA”) and Amendment 2
of the APA. As explained below, Mr.
Mattingly lacks personal
knowledge to
speak on the copyright ownership provisions and
is, therefore, barred by Rule
602
from offering testimony on that subject. Additionally, to the
extent that
such testimony interprets
and contradicts the clear language of the APA, it
constitutes
inadmissible parol evidence.
I. MR. MATTINGLY LACKS PERSONAL
KNOWLEDGE TO SPEAK
ON THE
COPYRIGHT OWNERSHIP PROVISIONS OF THE APA AND
AMENDMENT 2
Under Rule 602, “[a] witness may not testify to a
matter
unless evidence is introduced
sufficient to support a finding that the
witness has personal
knowledge of the matter.” Fed. R.
Evid. 602; Zokari
v. Gates, 561 F.3d 1076, 1089 (10th Cir. 2009)
(affirming district
court’s
ruling excluding testimony of witness who lacked personal
knowledge of matters relevant to
trial). Under the personal knowledge
standard, testimony is
inadmissible if “the witness could
not have
actually perceived or observed that which he testifies
to.” Argo v. Blue
Cross & Blue
Shield of Kan., Inc., 452 F.3d 1193, 1200 (10th Cir. 2006)
(citations omitted) (“‘statements of
mere belief’ in an
affidavit must be disregarded”).
Moreover, a lay witness may not
testify as to matters which
call for a legal conclusion,
such as the
interpretation and effect of a contract or an
amendment thereto. See,
e.g.,
Evangelista v. Inlandboatmen’s Union of the Pac., 777 F.2d
1390,
1398 n.3 (9th Cir. 1985)
(opinion of union chairman as to correct construction
of
collective bargaining agreement was
inadmissible because it was a legal
conclusion).
Mr. Mattingly lacks personal knowledge to testify as a lay
witness about the meaning of the
APA and whether the APA transferred the UNIX
and UnixWare
copyrights to Santa Cruz. At
the time of the APA negotiations,
Mr. Mattingly was working for
Novell and reporting to Mr. R.
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Case 2:04-cv-00139-TS
Document 642 Filed
02/08/2010 Page 3 of 5
Duff Thompson.
(Ex. 17A (Mattingly Dep.) at 10:1-11:19;
16:18-21.) Mr. Mattingly did
not
draft the APA, did not work with the attorneys in crafting specific
provisions, was not involved
in the details of the legal document, and
characterized his
participation in the negotiation
discussions of the APA as
“superficial.” (Id. at 66:11-69:22,
61:18-62:8 (“I
participated in some
of those discussions superficially”).) Mr. Mattingly
explained that
his involvement was limited
to only the high level business
strategy that took place at an
earlier phase in the negotiations. (Id.
at
66:11-69:22.) He testified that the “real detail back and
forth”
and the “detailed final
contracting” regarding the legal provisions
took place during the
last two to three weeks of
negotiations and that he was
involved “[v]ery superficially” and
did not
“wordsmith[]” the drafts.
(Id. at 68:12-69:18.)
Mr. Mattingly
admitted he has no recollection of specifically
considering the
copyright
ownership issue, but nonetheless opined that the copyrights
transferred under the APA.
(Compare id. at 29:3-14 (“You know, I,
personally do not recall
sitting there saying, yes. The
Unix copyrights are
part of this lock-stock-and-barrel Unix
business that we are selling.”)
with id.
at 96:20-97:4 (“[SCO] bought the UnixWare business, including
its copyrights. They bought all
of the Unix business, including the
copyrights.”).)
Notwithstanding his lack of firsthand
knowledge of the
intended meaning of the APA (as distinct from
his knowledge of the high
level
business strategy preceding the APA), Mr. Mattingly speculated
that
under the APA, Novell did
not retain the UNIX copyrights, but that they would
have
retained other copyrights. (Id. at 51:9-
52:11 (“Not the Unix
copyrights, but Novell . . . would not have
transferred any of
their
copyrights around NetWare and ZenWorks and GroupWise or
any of the
bundled products that
Novell sold with UnixWare”).) Mr. Mattingly lacks
personal
knowledge to testify as to the
intended meaning of the APA’s
copyright ownership provisions.
Additionally, Mr. Mattingly lacks
personal knowledge of the
intent and meaning of
Amendment 2 because he did not
write, negotiate, or even read
Amendment 2. (Id. at 85:1-
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Case 2:04-cv-00139-TS Document
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86:2.) He testified that
“it’s important to understand that [his]
involvement was up front
in
divesting the business. . . when it comes to this [APA] and
follow-on
amendments, that would
have been the folks that were more involved from the
corporate
development side.” (Id. at
38:19-39:2.) Accordingly, any
testimony by Mr. Mattingly about
the meaning of Amendment 2
is inadmissible
opinion testimony.
II. PAROL EVIDENCE IS INADMISSIBLE WITH REGARD TO THE
CLEAR
LANGUAGE OF THE APA
The parol evidence rule is a
substantive rule of law that
functions to exclude evidence
contradicting the
terms of an integrated agreement. EPA Real
Estate P’ship v. Kang, 12
Cal.
App. 4th 171, 175-176 (1992). The Tenth Circuit in this case
explained
that extrinsic evidence
“can only be used to expose or resolve a latent
ambiguity in the
language of the agreement
itself,” and that the
language of the APA itself – without regard
to Amendment 2
–
“unambiguously excludes the transfer of copyrights” because
Schedule 1.1(b) “explains
straightforwardly that ‘all
copyrights’ were excluded from the
transaction.” SCO Group, Inc.
v.
Novell, Inc., 578 F.3d 1201, 1210 (10th Cir. 2009). While the
appellate
court ruled that
“extrinsic evidence of the business negotiators’
intent
concerning the transaction” is admissible
(id. at 1211),
testimony interpreting and contradicting the
specific unambiguous terms of
the
APA should be excluded as improper parol evidence. Any such
testimony from
Mr. Mattingly
interpreting the APA’s unambiguous copyright exclusion
provisions – as distinct from testimony
concerning the general business
intent behind the APA – should
be excluded.
III. CONCLUSION
For the reasons stated herein, Novell moves to exclude the
testimony of Mr.
Mattingly
regarding the intended meaning of the copyright ownership
provisions
of the APA and
Amendment 2.
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Case 2:04-cv-00139-TS Document 642 Filed 02/08/2010
Page 5
of 5
DATED: February 8, 2010 Respectfully submitted,
By: /s/ Sterling A. Brennan
WORKMAN NYDEGGER
MORRISON & FOERSTER LLP
Attorneys for Defendant and
Counterclaim-Plaintiff Novell, Inc.
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| Authored by: Anonymous on Thursday, February 11 2010 @ 06:05 PM EST |
Novell should win major geek points for managing to cite Hustler Magazine v.
Falwell as a precedent in this case!
Anyone who has seen the movie "The People vs. Larry Flynt" should
recognize that case. I laughed out loud when I saw the cite.[ Reply to This | # ]
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