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Stewart Rules on Daubert Motions: SCO's Experts Can Testify
Tuesday, March 02 2010 @ 04:58 PM EST

Judge Ted Stewart has denied all three Novell motions for Daubert hearings. In essence, he says, let the jury decide. Novell can cross-examine them to highlight any flaws.

Here they are:

03/02/2010 - 745 - MEMORANDUM DECISION denying 659 Motion for Daubert Hearing. Signed by Judge Ted Stewart on 03/02/2010. (asp) (Entered: 03/02/2010)

03/02/2010 - 746 - MEMORANDUM DECISION denying 655 Motion for Daubert Hearing. Signed by Judge Ted Stewart on 03/02/2010. (asp) (Entered: 03/02/2010)

03/02/2010 - 747 - MEMORANDUM DECISION denying 657 Motion for Daubert Hearing. Signed by Judge Ted Stewart on 03/02/2010. (asp) (Entered: 03/02/2010)

On G. Gervaise Davis, the first SCO expert, Stewart carefully outlines what Davis will be allowed to say and what he will not, also relying on SCO representations as to what they will and won't ask him. (You know SCOfolk always keep their word, don't you?) For example, he won't be allowed to tell the jury who he thinks owns the copyrights. He can testify as to his experience over his working life as an attorney as to whether ownership of the copyrights was necessary for SCO to operate its business, but he "will not be telling the jury that the law does require ownership".

With regard to Christine Botosan, he decided that the perceived weaknesses in her method and conclusions go to their weight, not their admissibility, "and are proper fodder for cross-examination". That was SCO's argument, if you recall. As to Novell's claim that she was a conduit for hearsay, Judge Stewart says experts can base their opinions on "evidence not otherwise admissible" if it's the type "reasonably relied upon by experts in the particular field." Novell can highlight weaknesses in cross-examination.

As for Gary Pisano, Stewart claims Novell didn't challenge the Yankee Group study methodology, just Pisano's ability to recall what it was. Novell did argue that Pisano's reliance on the study was flawed because it was insensitive to price, but Stewart rejects that argument saying that SCO says Pisano did consider price. Again, he tells Novell to use cross examination or call its own expert to refute Pisano, which we know Novell plans to do.

And the judge says he'll include in the jury instructions "how to evaluate the credibility of expert witnesses." If he tells them to evaluate it as he does here, however, I doubt that will be the least bit helpful to anyone but SCO, frankly.

Speaking of analysts, I recalled today another reason SCOsource wasn't popular. According to Dion Cornett, then an analyst covering SCO, here's what he said, in June of 2004, was damaging SCO business across the board:

"Some of their core customers are being scared off by the lawsuits," said Dion Cornett, an analyst at Decatur Jones Equity Partners. "SCO has sued some of its customers, and that is what's scaring people off."
So, according to this analyst, SCOsource was connected with lawsuits in the market's mind, and they ran from SCO. I just mention it in case anyone is looking for an analyst. In fact, for quite a long stretch, IIRC, he was the only analyst covering SCO. Last I heard, he was at Red Hat.


Stewart Rules on Daubert Motions: SCO's Experts Can Testify | 187 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: SirHumphrey on Tuesday, March 02 2010 @ 05:07 PM EST
kurexions => corrections

[ Reply to This | # ]

News Picks
Authored by: SirHumphrey on Tuesday, March 02 2010 @ 05:09 PM EST
Use the title whenever it's helpful

[ Reply to This | # ]

Off topic here
Authored by: SirHumphrey on Tuesday, March 02 2010 @ 05:15 PM EST
No on-topic stuff here!
Otherwise we'll take you out back and shoot the breeze with you :)

[ Reply to This | # ]

"Comes" submissions here
Authored by: SirHumphrey on Tuesday, March 02 2010 @ 05:18 PM EST
For all you busy beavers who aren't currently distracted by the main ring of
this circus.

[ Reply to This | # ]

Haiku thread, or just some nonsense here
Authored by: SirHumphrey on Tuesday, March 02 2010 @ 05:20 PM EST
Like "D'oh bears", do-bees and don't-bees

[ Reply to This | # ]

Color me pink - or knock me over with a feather!
Authored by: SirHumphrey on Tuesday, March 02 2010 @ 05:27 PM EST
Why am I not surprised that Novell's motions were denied? Still, after this,
certain yahoos won't be able to complain that SCOXQ.BK didn't get their day in

[ Reply to This | # ]

Authored by: Anonymous on Tuesday, March 02 2010 @ 06:06 PM EST
Since these are all such appallingly uncredible witnesses, Novell's lawyers
should have a field day tearing them apart in court. Fetch the popcorn!

[ Reply to This | # ]

Judge Stewart gives SCO enough rope ...
Authored by: jbb on Tuesday, March 02 2010 @ 06:40 PM EST
... to hang themselves and then a couple more feet, just to be sure.

Does it really help SCO to be able to trot out witnesses and experts only to have them thoroughly debunked by Novell? The primary thing the jury must decide is who is telling the truth and who is lying. I've got no problem with giving the jury another chance to see through SCO's tissue of lies (YMMVG). The 10th Circuit CoA said they want a jury to hear SCO's witnesses so Judge Stewart is going to let the jury hear SCO's witnesses. Anything less risks another successful appeal by SCO if they lose. If Judge Stewart calls a reasonably fair fight in the courtroom, I still don't see how SCO stands a chance. IMO the danger this month (March, 2010) is in from shenanigans in Delaware, not in Utah.

What the heck is going on in Delaware with those two egregiously foul motions to hand over everything to Darl and Yarro? Why bother with those motions if they will almost surely be denied? If the motions are granted then Darl and Yarro stand to inherit everything and can crank up their anti-Linux freakshow at a latter date. I think the reason these motions were filed is to block any possible legitimate short-term bailout.

What happens if SCO goes chapter 7 in the middle of the trial (especially when it looks like they are going to go down in flames)? Will the trial continue or will the proceedings be halted yet again right before SCO expects to receive the coup de grĂ¢ce? Are they going to be able to spin it that everything they said was true and they would have been totally vindicated if only they had a few more weeks to get to the end of the trial? Or are they going to say that the possibility of billions and billions of dollars at the end of the litigation rainbow justify stiffing the creditors completely and giving everything that is left to Yarro and Darl despite the egregious terms?

This is just my opinion. YOMVG.

You just can't win with DRM.

[ Reply to This | # ]

Stewart Rules on Daubert Motions: SCO's Experts Can Testify
Authored by: Tufty on Tuesday, March 02 2010 @ 06:41 PM EST
Dion Cornett's remarks remind me of something I have been wondering about. The
common view seems to be that Microsoft is behind these cases as an attack
against Linux. Perhaps, instead, it was an attack against SCO, Linux only being
a secondary target.

SCO, with a reliable server presence, developing a Linux desktop and knowing the
retail industry would be a threat to Microsoft world domination. Where would W2k
or XP be in the lucrative supermarket market if Linux cash registers were
reporting back to Unix servers? Likewise the office desktop and back office.

Perhaps, by getting SCO to drop Linux like a hot potatoe and change its focus to
a litigation base they sought to remove a dangerous competitor while causing
collateral damage to a rival OS.

Just a thought.


Linux powered squirrel.

[ Reply to This | # ]

Will debunking SCO's phoney experts waste Novell's court time?
Authored by: CraigV on Tuesday, March 02 2010 @ 10:26 PM EST
I can't help but wonder if Novell's ability to present a clear picture of their
case will be hindered by the necessity of spending time on debunking SCO's bogus

It seems to me that a common tactic in arguing is to divert the discussion to
unimportant side points to hide one's weaknesses on important aspects.

[ Reply to This | # ]

Owerner ship of copyrights necessary to operate the business?
Authored by: Anonymous on Wednesday, March 03 2010 @ 12:28 AM EST
G. Gervaise Davis (...) He can testify as to his experience over his working life as an attorney as to whether ownership of the copyrights was necessary for SCO to operate its business, but he "will not be telling the jury that the law does require ownership".

Here's a few questions that I would like to see asked of Mr. Davis:

  • Q: Are you familiar with how SCOG conducted business in the past? (A: Maybe).
  • Q: Are you familiar with the name that SCOG originally operated under? (A: Caldera).
  • Q: What was Caldera's major product prior to the purchase of Santa Cruz's Unix business? (A: Linux).
  • Q: Did Caldera raise money from investors based on the premise of operating a Linux business? (A: Yes).
  • Q: Did Caldera own all or substantially all of the copyrights to Linux when operating that business? (A: No).
  • Q: Was Caldera able to operate that business without owning those copyrights? (A: Yes).
  • Q: Why would Caldera require the copyrights to Unix in order to operate a business very similar to one that they were already operating without owning copyrights? (A: ???).
  • Q: In what manner was SCOG not able to operating a business in the manner envisioned under the original agreement? (A: ???).

Of all the companies that would try making a claim like this, Caldera, one of the very earliest Linux distros, seems like the least believable one to make such a claim. Are they claiming now that their representations to their original investors were all based on lies? What are they admitting to here?

[ Reply to This | # ]

This damages Novell
Authored by: Anonymous on Wednesday, March 03 2010 @ 02:50 AM EST

Novell will now have to put resources (the valuable time of skilled lawyers) into preparing their cross-examination of these dubious witnesses. Their testimony could, despite Novell's best efforts, still confuse the jury.

Testimony which has been shown to be worthless should simply not be presented to the jury. The decision to allow it all, and thereby lengthen the trial, was surely wrong.

[ Reply to This | # ]

Kill them all and let god sort them out
Authored by: peope on Wednesday, March 03 2010 @ 05:18 AM EST
This reminds me of the old pope and the crusades when he said "Kill them
all and let god sort them out".

[ Reply to This | # ]

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