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.

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.

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.

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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

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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 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

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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

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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 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

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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

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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 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

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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.

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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 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

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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.).

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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 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.

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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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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 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

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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.

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(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 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.