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Novell's Motions in Limine - to Exclude Testimony, #s 12-19 |
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Thursday, February 11 2010 @ 02:54 AM EST
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Here are the Novell Motions in Limine #s 12-19, asking the court to exclude certain testimony from William Broderick, Lawrence Bouffard, Ed Chatlos, Burt Levine, Kim Madsen, Ty Mattingly, R. Duff Thompson, Doug Michaels, Robert Frankenberg, and Jean Acheson. Long-time readers will remember that this is the second time Novell has brought this up, but the first time around the block, Judge Dale Kimball didn't find the APA ambiguous, so no external testimony was required. Also, he ruled that "'extrinsic evidence is admissible only to supplement or
explain the terms of the agreement--and even then, only where such evidence is consistent with
the terms of the integrated document.' EPA Real Estate Partnership v. Kang, 12 Cal. App. 4th
171, 175-77 (1992)." Since SCO's witnesses contradicted the document, he found it inadmissible. Now, after the Court of Appeals remanded the case, finding it ambiguous, we are back for a redo, so now their testimony is what the jury might be hearing. I think the difference is that the Court of Appeals was new to the contract, whereas Judge Kimball had had the benefit of years, literally, of discovery and motion practice, so over time, the nuances became clearer to him. Novell argues that these witnesses lack personal knowledge of aspects of the APA and/or Amendment 2, and so their testimony should be excluded or limited to just what they actually have personal knowledge of. Here's where you can find the earlier Novell objections to witnesses' testimony [PDF] and to exhibits and to experts. And here's Rule 602 of the Federal Rules of Evidence, referenced throughout, the rule about personal knowledge. If you are curious, in Judge Kimball's order dated August 10, 2007 [PDF], he did mention the fact that these SCO witnesses seemed not to know much about the APA, in particular about Amendment 2.
There is a long section in the order on the witnesses, both parties' witnesses, and he mentioned in particular SCO's witnesses not having been closely involved or involved at all in some cases or unable to remember details, and he questioned the relevance of the testimony:
The relevance of much of the testimony is questionable because few have a recollection of actual discussions regarding the transfer or retention of copyrights. Many witnesses give an opinion as to whether they think the copyrights should have transferred, but they fail to establish an adequate foundation to support their opinion. Given the volume of the testimony presented to the court and the number of attorneys and business people involved in the transaction, it is surprising that there is not more testimony on the drafting and negotiation of the intellectual property provisions from both sides of the deal. He goes on to describe the testimony from the Novell legal side, so he seems to have meant it surprised him that SCO never produced the outside lawyer that was their lead person on the deal, Jeff Higgins of Brobeck, Phleger & Harrison, although Novell produced both the outside lawyer who drafted the APA, Tor Braham of Wilson Sonsini, and the in-house lawyer who later drafted Amendment 2, Alison Amadia. I don't recall SCO presenting any witnesses at all who were involved in Amendment 2 who could contradict the Novell testimony, which included drafts of both documents. Judge Kimball went down the list of witnesses, many of whom are on Novell's new list in these motions in limine to exclude testimony, and he described their testimony, one by one. He decided the copyright issue without their testimony being the deciding factor, but clearly he was not impressed. Here's a bit of what he wrote about SCO's witnesses on Amendment 2:
Sabbath has no recollection of negotiating the copyright portion of Amendment No. 2. SCO relies on the testimony of Robert Frankenberg and Ed Chatlos regarding Amendment No. 2. However, both men had left Novell before Amendment No. 2 was negotiated and had no involvement in the negotiation of the amendment. Frankenberg Dep. at 86; Chatlos Decl. ¶ 4. SCO relies on the testimony of several other individuals involved in the business, but none of them admits to being involved in the negotiations of Amendment No. 2 or to having any specific recollection of the negotiations with respect to the transfer of copyrights. Since SCO is relying heavily on its interpretation of Amendment 2 cinching the case for them, one wonders what they will do if Novell's motions are granted in any significant way.
Here are all the motions in limine on excluding testimony:
Novell's #12, 637 [PDF]: 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.
Novell's #13, 638 [PDF]:
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.
Novell's #14, 639 [PDF]: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.
Novell's #15, 640 [PDF]: NOVELL'S MOTION IN LIMINE
NO. 15: TO EXCLUDE CERTAIN
TESTIMONY FROM ROBERT
FRANKENBERG 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 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
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.
3
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.
_____________
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.)
Novell's #16, 641 [PDF]:NOVELL’S MOTION IN LIMINE
NO. 16: TO EXCLUDE CERTAIN
TESTIMONY FROM R. DUFF
THOMPSON 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 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
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
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.
Novell's #17, 642 [PDF]:NOVELL'S MOTION IN LIMINE NO. 17: TO EXCLUDE CERTAIN TESTIMONY FROM TY MATTINGLY 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 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.
1
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-
2
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.
Novell's #18, 644 [PDF]:NOVELL'S MOTION IN LIMINE
NO. 18: TO EXCLUDE CERTAIN
TESTIMONY FROM DOUGLAS
MICHELS 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 Douglas Michels 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. Michels 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. MICHELS 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. Michels 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. At the time the APA was drafted, Mr. Michels
1
worked for Santa Cruz as its Chief Technology Officer ("CTO"). (Ex. 18A (Michels Dep.) at
7:25-8:5.) Although he states that he supervised the people negotiating the APA transaction, he
did not draft any language of the Asset Purchase Agreement, did not review drafts of the APA,
and does not even vaguely recall participating in any debates regarding the drafting of the APA.
(Id. at 12:14-13:7, 11:2-13.) Indeed, Mr. Michels testified that he did not recall any discussions
by anyone at either Novell or Santa Cruz regarding whether UNIX copyrights were being
transferred as part of the APA. (Id. at 50:20-52:5.) When asked about the basis for his belief
that the copyrights transferred under the APA, Mr. Michels responded: "I didn't read it then, and
I haven't read it recently. I've never [read] it through. I'm not a lawyer, and I have no comment
about the Asset Purchase Agreement." (Id. at 54:20-55:7 (emphasis added).)
Notwithstanding his lack of firsthand knowledge of Santa Cruz's drafting intent
regarding the APA and his claim to have "no comment," Mr. Michels offered inadmissible
speculation throughout his deposition as to the intended meaning of the APA. For instance, Mr.
Michels testified that the term "all copyrights" under APA Schedule 1.1(b) "makes no sense in
the context of the agreement" and he "assume[s] it was an error." (Id. at 76:25-77:4.) Further
Mr. Michels opined on the copyrights issue and testified: "[W]e bought the entire business.
That included the copyrights." (Id. at 76:25-77:23.) With regard to how the copyrights were
transferred, Mr. Michels testified that "[h]ow they transferred is a legal issue, and I don't care."
(Id. at 79:6-17.)
Additionally, Mr. Michels lacks personal knowledge concerning the intent and meaning
of Amendment 2. Mr. Michels testified that he had no involvement with that amendment:
Q. Is the same true of Amendment Number 2? Were you - do you
have any recollections of being involved - specific recollections of
being involved in the negotiations of Amendment Number 2?
A. I don't even know what Amendment Number 2 is.
2
(Id. at 19:25-20:4.) Further, Mr. Michels testified that he does not recall any discussion or
negotiation surrounding the language in paragraph A of Amendment 2 at the time of its
execution. (Id. at 103:3-17.) Accordingly, any testimony by Mr. Michels 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. Michels
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. Michels
regarding the intended meaning of the copyright ownership provisions of the APA and
Amendment 2.
Novell's #19, 648 [PDF]: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 admits, 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.
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Authored by: Winter on Thursday, February 11 2010 @ 03:33 AM EST |
Please put the title of the News Pick in the Title bar and use HTML clickable
links
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Some say the sun rises in the east, some say it rises in the west; the truth
lies probably somewhere in between.[ Reply to This | # ]
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Authored by: Winter on Thursday, February 11 2010 @ 03:34 AM EST |
Please stay off topic and use HTML for clickable links
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Some say the sun rises in the east, some say it rises in the west; the truth
lies probably somewhere in between.[ Reply to This | # ]
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Authored by: Winter on Thursday, February 11 2010 @ 03:35 AM EST |
Keep those COMES contributions coming. Use this thread to collect them.
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Some say the sun rises in the east, some say it rises in the west; the truth
lies probably somewhere in between.[ Reply to This | # ]
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Authored by: Winter on Thursday, February 11 2010 @ 03:36 AM EST |
Please put error->correction or s/error/correction/ summary in Title
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Some say the sun rises in the east, some say it rises in the west; the truth
lies probably somewhere in between.[ Reply to This | # ]
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Authored by: Anonymous on Thursday, February 11 2010 @ 05:23 AM EST |
Then what gave them the right to create and sell copies of the code?
Is there some clause or separate contract where Novell licenses Santa Cruz to
make copies?
Sorry if this has been asked before, but I'm not aware of any, and surely it'll
be a question that SCO will ask Novell in front of a jury if it gets a chance.[ Reply to This | # ]
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Authored by: maroberts on Thursday, February 11 2010 @ 06:54 AM EST |
As far as I can tell, the arguments to exclude each witness are similar. Why are
there lots of individual motions instead of a unified (slightly longer) single
motion?[ Reply to This | # ]
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Authored by: jpvlsmv on Thursday, February 11 2010 @ 02:47 PM EST |
If SCO's motion to prevent Novell from referring to the text of the unamended
APA is approved, then all of these witnesses who were around during the drafting
of the original lines that were later modified would have absolutely no relevant
testimony to offer, right?
They were not there when the contract that says "excluding all copyrights
except those needed to operate the business", and since that's the only
contract SCO wants to talk about, what can these witnesses say?
Will Novell have a chance to bring this up if the SCO motion prevails and these
don't?
--Joe[ Reply to This | # ]
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