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Novell files Offer of Proof Re Prior Inconsistent Declaration of Sabbath
Tuesday, March 16 2010 @ 07:49 AM EDT

Novell has filed a Notice of Filing of Offer of Proof Regarding Prior Inconsistent Declaration of Steven Sabbath. It is making a record that SCO was allowed to present testimony in direct examination that Novell knew was contradicted by deposition testimony, but then Novell couldn't tell the jury about it, because of rulings by the judge.

I gather Novell has noticed what you have, that the judge's ruling was not fair to Novell.So they are making a record, listing very thoroughly why the deposition is allowable under the rules, how they would have used it to rebut SCO's witnesses, and precisely how the materials are contradictory. This may be related to the discussion we heard about yesterday, where it was discussed if Ms. Madsen would have to return. It surely will be part of any appeal, should it prove necessary. But the judge can simply change his ruling, solving the issue.

Here's the Novell filing:

03/15/2010 - 801 - NOTICE OF FILING of Offer of Proof Regarding Prior Inconsistent Declaration of Steven Sabbath filed by Defendant Novell, Inc.. (Attachments: # 1 Attachment-Novell Trial Ex. Y23)(Brennan, Sterling) (Entered: 03/15/2010)

I have never seen that happen before, where you are not allowed to impeach a witness by referring to a prior deposition where the witness said something very different from what he says on the witness stand. Here's what our reporter, Chris Brown, says happened yesterday:
Mr. Jacobs asks Ms. Madsen if she's aware that Mr. Sabbath made a deposition statement directly contradicting her? Objection by Mr. Normand. Mr. Jacobs told the judge that it was his understanding that statements outside the courtroom could be used to impeach the witness. Mr. Normand, it was his understanding no. Objection sustained....

Mr. Jacobs asks for a sidebar to discuss recalling Ms. Madsen in the future. They do so. Afterwards Judge Stewart asks Mr. Normand if he has anything more for her and he says no. Judge Stewart then asks Ms. Madsen about what inconvenience it would be calling her again. She indicated she has two children missing school and an infant in the hall. She said her employer would not be happy with her coming back. Judge Stewart says she would not be called for a number of days and she can return to California, but that she can likely expect to be called back.

Mr. Normand than asks for another sidebar to discuss further after having heard her responses. They do so again. The judge then asks her if she has a flight at 3pm today? Yes. He asks her to stay around but it'll at least be by 1:30pm....

[Steve Sabbath testifies.] Judge Stewart then called a 20-minute break.

After returning, and before the Jury was brought back in, there were more discussions. Judge Stewart said that he read as much as he could during the break of Mr. Sabbath's declaration and said that on its own it rebuts Ms. Madsen and he sees no need to bring her back. Mr. Jacobs wishes to do so in front of the jury and read paragraphs from his declaration that include his contradictions.

Mr. Jacobs states that Mr. Sabbath had the declaration in front of him during his deposition and referred to it. Therefore the jury should be able to see that document as it would be in court.

Judge Stewart asks doesn't Novell have him saying as much verbally during the deposition? Mr. Jacobs admits that they did not have him read his declaration aloud during the deposition. Judge Stewart says Novell may not read it aloud to the jury and that he's not going to make up for what counsel failed to do during the deposition....

[Darl McBride testified.] Then, after the jury had departed, he remained to discuss issues. Novell to file something (motion? declaration?) regarding declaration of Steve Sabath. It seemed it was something of a formality to get something on the record.

Here is the filing, with the only change being I didn't chop up the charts with page numbering.

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

Sterling A. Brennan (Utah State Bar No. 10060; E-mail
David R. Wright (Utah State Bar No. 5164: E-mail)
Kirk R. Harris (Utah State Bar No. 10221; E-mail)
Cara J. Baldwin (Utah State Bar No. 11863; E-mail)
[address, phone, fax]

MORRISON & FOERSTER LLP
Michael A. Jacobs (Admitted Pro Hac Vice; E-mail)
Eric M. Acker (Admitted Pro Hac Vice; E-mail)
Grant L. Kim (Admitted Pro Hac Vice; E-Mail)
Daniel P. Muino (Admitted Pro Hac Vice; E-Mail)
[address, phone, fax]

Attorneys for Defendant and Counterclaim-Plaintiff Novell, Inc.

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

THE SCO GROUP, INC., a Delaware
corporation,

vs.

NOVELL, INC., a Delaware corporation,

Defendant.

___________________

Case No. 2:04 CV00139

NOVELL'S OFFER OF PROOF
REGARDING PRIOR INCONSISTENT
DECLARATION OF STEVEN
. SABBATH

Judge Ted Stewart

______________________

On March 15, 2010, SCO called as a witness Kimberlee Madsen, a paralegal working for Steven M. Sabbath at the Santa Cruz Operation ("Santa Cruz") in 1995 and 1996. SCO was permitted on direct examination to question Ms. Madsen as to whether several out-of-court statements in documents of which she was not the author comported with her understanding of the transaction between Santa Cruz and Novell in 1995. However, Novell was not permitted on cross examination to question Ms. Madsen as to whether statements made under penalty of perjury in a declaration of Mr. Sabbath, her superior in 1995, comported with her understanding of the same transaction.

Novell also intended to read to the jury portions of Mr. Sabbath's declaration during the playing of his videotaped deposition testimony. These portions are prior inconsistent statements that impeach the videotaped testimony of Mr. Sabbath that was displayed by SCO.

Pursuant to Federal Rule of Evidence 103(a)(2), Novell makes this offer of proof regarding the December 22, 2003 declaration of Steven M. Sabbath, marked as Novell Ex. Y23 and attached for reference, setting forth the evidence the jury would have heard had Novell been permitted to proceed as set out above. The statements at issue within Mr. Sabbath's December 22, 2003 declaration are admissible under Federal Rule of Evidence 801(c) as, consistent with the Court's holding allowing similar questioning by SCO, the statements would not have been used with respect to Ms. Madsen's testimony to establish the truth of the matters asserted, but to establish her understanding of the transaction between Santa Cruz and Novell, thus they are not hearsay. The portions of Mr. Sabbath's 2003 declaration that Novell intended to read to the jury during the playing of Mr. Sabbath's videotaped deposition testimony are admissible as non-hearsay under Federal Rule of Evidence 801(d)(1)(A), as Mr. Sabbath unequivocally lays the foundation for the declaration in his deposition, the declaration is flatly inconsistent with the very deposition testimony presented by SCO to the jury, and the declaration was given under oath subject to penalty of perjury.

1

A. Testimony of Kimberlee Madsen

On direct examination, SCO was permitted to repeatedly question Ms. Madsen regarding the content of out-of-court statements that she did not draft. These documents were all accepted into evidence and published to the jury. Ms. Madsen was asked whether various statements within these documents comported with her understanding of the 1995 transaction between Santa Cruz and Novell.

By the same token, Novell intended to ask Ms. Madsen questions regarding the content of the declaration of Steven M. Sabbath. Mirroring SCO's direct examination, Novell would have asked Ms. Madsen whether various statements within Mr. Sabbath's declaration comported with her understanding of the 1995 transaction. Used for this purpose, the statements are not hearsay under Federal Rule of Evidence 801(c). As of 1995, Mr. Sabbath had roughly fifteen years more experience in the legal industry than did Ms. Madsen. Mr. Sabbath was the General Counsel of the company at which Ms. Madsen was a paralegal. Mr. Sabbath was Ms. Madsen's direct superior, including in the very transaction at issue. If the question "does this statement comport with your understanding" is relevant as posed by SCO regarding out-of-court statements in legal and regulatory filings not drafted by Ms. Madsen, certainly the same question as posed by Novell regarding statements made under penalty of perjury by Ms. Madsen's direct superior in the transaction at issue is relevant.

If Novell had been permitted to question Ms. Madsen consistent with what was permitted of SCO on direct examination, Novell would have cross-examined Ms. Madsen regarding the following statements in Mr. Sabbath's declaration, each of which is relevant to challenge a particular area of Ms. Madsen's understanding to which she testified.

2

Area of Madsen Testimony Ex. Y23 Portion Novell Intended to Use in Cross-Examination
Santa Cruz acquired UNIX and UnixWare businesses. "Initially, Santa Cruz was interested in purchasing both of [the UNIX and UnixWare] businesses. However, the royalty stream associated with the UNIX System V software licensing business led to a total valuation for both businesses that Santa Cruz could not afford. Therefore, Santa Cruz proposed that Novell retain the legacy UNIX System V licensing business and Santa Cruz purchase only the UnixWare business. Under this proposal, Santa Cruz would administer the collection of royalties under the UNIX System V license agreements and pass through these royalties to Novell for a fee." (Ex. Y23 ¶ 10).
Santa Cruz acquired all right, title, and interest, including copyrights. "Under the Asset Purchase Agreement, Novell retained significant UNIX-related assets following the sale. For example, Schedule 1.1(b) of the asset purchase agreement provided that much of the UNIX System V intellectual property would not be transferred to Santa Cruz by listing the following items as "Excluded Assets": V. Intellectual Property: A. All copyrights and trademarks, except for the trademarks UNIX and UnixWare. B. All Patents."
(Ex. Y23 ¶ 11).

"It is my understanding, based upon my review of Plaintiff's amended complaint, that Plaintiff claims to have acquired all right, title and interest in and to UNIX System V operating system source code, software and sublicensing agreements, together with copyrights, additional licensing rights in and to UNIX System V, and claims against all parties breaching such agreements. I understand that Plaintiff also claims to control the right of all UNIX vendors to use and distribute UNIX System V. I believe that these claims are incorrect. As described above in relation to the Related Agreements and Amendment No. 2, Novell retained certain rights under the UNIX System V licensing agreements, as well as certain UNIX System V intellectual property as described above."
(Ex. Y23 ¶ 29).

Section 4.16B must be read in a more limited fashion than its plain language dictates in light of the intent of the agreement. "Although Amendment No. 1 made several changes to Section 4.16, it did not impose any new limits on Novell's ability, at its sole discretion, to amend, modify, supplement or waive any rights under, or assign any rights to, the legacy UNIX System V license agreements in any manner or respect. Furthermore, I am not aware of any provision in the Asset Purchase Agreement, or any amendment thereto, that imposed on Novell any obligation to preserve the confidentiality of the UNIX System V source code for the benefit of Santa Cruz."
(Ex. Y23 ¶ 13).
Copyrights were required for the business and essential to the transaction. "As discussed above, the fundamental business deal reflected in the Asset Purchase Agreement was that Santa Cruz would acquire Novell's UnixWare business and Novell would effectively retain the legacy UNIX System V licensing business. My understanding was that the language in Amendment No. 2 quoted above was intended to implement this business deal with respect to copyrights and trademarks. So far as I know, neither Santa Cruz nor Novell ever identified the specific copyrights or trademarks for which a transfer of ownership was `required' for Santa Cruz to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies. I do not know whether Novell ever executed an instrument of assignment to transfer ownership of specific copyrights or trademarks to Santa Cruz, nor do I know whether such an instrument was required in order to effect the transfer."
(Novell Ex. Y23 ¶ 26).

"I believe that Santa Cruz assigned little, if any, of the value of the acquisition to any copyrights that it might have acquired from Novell."
(Novell Ex. Y23 ¶ 28).

5

B. Testimony of Steven Sabbath

In addition to its questioning of Ms. Madsen as detailed above, Novell intended to read to the jury portions of the 2003 declaration of Mr. Sabbath as prior inconsistent statements to impeach the videotaped deposition testimony that was shown to the jury by SCO. Used for this purpose, the statements are not hearsay under Federal Rule of Evidence 801(d)(1)(A). ¶¶ 10, 11, 12, 13, 23, 26, 28, and 29 of the attached Novell Ex. Y23 would have been read to the jury. Each of these paragraphs was stated in a declaration by Mr. Sabbath under penalty of perjury and directly conflicts with the videotaped deposition testimony of Mr. Sabbath presented to the jury by SCO.

Sabbath Deposition Testimony Displayed by SCO Ex. Y23 Portion Novell Intended to Use to Impeach
"We were buying the entire business, including the intellectual property."
(Sabbath 2-12-07 20:5-9)

"[C]opyrights were going with the assets."
(Sabbath 2-12-07 24:24).

"Santa Cruz proposed that Novell retain the legacy UNIX System V licensing business and Santa Cruz purchase only the UnixWare business." (Ex. Y23 ¶ 10).

"Under the Asset Purchase Agreement, Novell retained significant UNIX related assets following the sale. For example, Schedule 1.1(b) of the Asset Purchase Agreement provided that much of the UNIX System V intellectual property would not be transferred to Santa Cruz...."(Ex. Y23 ¶ 11).

"It is my understanding...that Plaintiff claims to have acquired all right, title and interest in and to UNIX System V operating system source code, software and sublicensing agreements, together with copyrights, additional licensing rights in and to UNIX System V, and claims against all parties breaching such agreements. I understand that Plaintiff also claims to control the right of all UNIX vendors to use and distribute UNIX System V. I believe that these claims are incorrect. As described above in relation to the Related Agreements and Amendment No. 2, Novell retained certain rights under the UNIX System V licensing agreements, as well as certain UNIX System V intellectual property as described above."
(Ex. Y23 ¶ 29).

Agreed with 2004 declaration in which he stated, "I understand that IBM has argued that Section 4.16(b) of the APA gave Novell the right to require Santa Cruz to waive any breach of the intellectual property protections provided in the SVRX licenses. That argument is contrary to the intent of paragraph 4.16(b) as I understood it."
(Sabbath 2-12-07 67:9-25).
"Section 4.16(b) of the Asset Purchase Agreement included the following language providing that Novell would have the right, at its sole discretion, to amend, modify, supplement or waive any rights under, or assign any rights to, the UNIX System V license agreements . . . . Since Novell would be retaining the right to receive the royalties under the UNIX System V licenses, it was agreed that Novell also would retain certain rights to control the contractual relationships with the licensees."
(Ex. Y23 ¶ 12).

"Although Amendment No. 1 made several changes to Section 4.16, it did not impose any new limits on Novell's ability, at its sole discretion, to amend, modify, supplement or waive any rights under, or assign any rights to, the legacy UNIX System V license agreements in any manner or respect."
(Ex. Y23 ¶ 13).

"Furthermore, since the process set out in Amendment No. 2 applies only in the context of a royalty buy-out, Novell has the right, at its sole discretion, to direct Plaintiff to amend, modify, supplement or waive any rights under, or assign any rights to, any `SVRX Licenses,' as defined in the amended Asset Purchase Agreement, without complying with the process set out in Amendment No. 2 (and, if Plaintiff fails to do so, to take such action on Plaintiff's behalf) . . ."
(Ex. Y23 ¶ 23).

Confirmed that he reviewed and approved 2004 declaration in which he stated that "Amendment Number 2 was intended to confirm, among other things, the parties' intent that SCO would obtain ownership of the UNIX copyrights under the APA."
(Sabbath 2-12-07 208:20-209:5).
"Novell would effectively retain the legacy UNIX System V licensing business. My understanding was that the language in Amendment No. 2 quoted above was intended to implement this business deal with respect to copyrights and trademarks. So far as I know, neither Santa Cruz nor Novell ever identified the specific copyrights or trademarks for which a transfer of ownership was `required' for Santa Cruz to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies."
(Ex. Y23 ¶ 26).

"I believe that Santa Cruz assigned little, if any, of the value of the acquisition to any copyrights that it might have acquired from Novell."
(Ex. Y23 ¶ 28).

DATED: March 15, 2010

Respectfully submitted

By: /s/ Sterling A. Brennan

WORKMAN NYDEGGER
Sterling A. Brennan
David R. Wright
Kirk R. Harris
Cara J. Baldwin

MORRISON & FOERSTER LLP
Michael A. Jacobs, pro hac vice
Eric M. Acker, pro hac vice
Grant L. Kim, pro hac vice
Daniel P. Muino, pro hac vice

Attorneys for Defendant and
Counterclaim-Plaintiff Novell, Inc.

9


  


Novell files Offer of Proof Re Prior Inconsistent Declaration of Sabbath | 314 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Novell files Offer of Proof Re Prior Inconsistent Declaration of Sabbath
Authored by: nattt on Tuesday, March 16 2010 @ 08:17 AM EDT
I'm still trying to get over the shock of this actually happening. Thanks again
to
PJ and the court reporters bringing this to us as it happens.

[ Reply to This | # ]

Corrections here
Authored by: jesse on Tuesday, March 16 2010 @ 08:21 AM EDT
thanks

[ Reply to This | # ]

*TILT* (n/t)
Authored by: DaveJakeman on Tuesday, March 16 2010 @ 08:23 AM EDT

[ Reply to This | # ]

Off topic thread
Authored by: jesse on Tuesday, March 16 2010 @ 08:24 AM EDT
Thank you...

[ Reply to This | # ]

News Picks...
Authored by: jesse on Tuesday, March 16 2010 @ 08:26 AM EDT
Thank you.

[ Reply to This | # ]

Comes Documents Here
Authored by: jesse on Tuesday, March 16 2010 @ 08:26 AM EDT
Thank you

[ Reply to This | # ]

And thanks to the attendees.
Authored by: jesse on Tuesday, March 16 2010 @ 08:28 AM EDT
Many thanks for taking the time to follow, and forward.

[ Reply to This | # ]

Copied from last article....
Authored by: Jimbob0i0 on Tuesday, March 16 2010 @ 09:10 AM EDT

Since a lot of people (myself included) tend to hover on the 'current' article for comments i thought I'd copy/paste my comment here from the last article as I would be interested in feedback....

Mr. Singer states that this was also part of a Novell press release. He shows the press release and highlights where Novell states the copyrights were not conveyed to SCO, that contrary to SCO's assertions, SCO does not own the copyrights. What was the effect on SCO? Mr. McBride states that there was an immediate effect that day, their stock dropped 25% that day, that the statement achieved a lot of press. He had to go to New York to meet with their largest shareholders to reassure them that SCO owned the copyrights. Then while in NY he received a call from his secretary saying "You've got to see this." It was Amendment 2.

He said it cleared up a lot of questions he'd had. He then called Novell's Jack Messman on June 5th. Jack reiterated on the phone that Novell owns the copyrights.

As I read that it looks like he did not know about Amendment 2 when the original claims by him/SCO were made to the public. It was was when he was in NY reassuring the shareholders that he got a call from his secretary saying "you have to see this" and that item being amendment 2....

Given that the appeals court have already said that the APA prior to Amendment 2 is unambiguous in *NOT* transferring the copyrights that implies the claims of title were made without knowledge of Amendment 2 for Darl/SCO ... and therefore against the facts as known at the time and slanderous and fraudulent as a result... or am I missing something here? After all Darl would never lie to the Jury - right?

I can't wait till Novell get to cross examine him later on today....

[ Reply to This | # ]

Sabbath declarations and deposition text
Authored by: mattflaschen on Tuesday, March 16 2010 @ 09:29 AM EDT
Sabbath certainly appears to be an interesting witness. Does anyone know if we currently have (at all) the deposition where he apparently called one of his own declarations, "quick and dirty" and "close enough for government work", or the text version of the current declaration Novell's citing.

[ Reply to This | # ]

Re: the Sabbath declaration.
Authored by: kinrite on Tuesday, March 16 2010 @ 09:49 AM EDT
Sabbath's declaration was taken in connection with The SCO Group v IBM case.

---
"Truth is like energy...it can not be created, nor destroyed"

[ Reply to This | # ]

SCOgate
Authored by: DaveJakeman on Tuesday, March 16 2010 @ 10:01 AM EDT
They edited the tape!

Novell's Offer of Proof is very revealing: the December 22, 2003 declaration of
Steve Sabbath differs significantly from the edited deposition video SCO
presented in court. No wonder Judge Stewart doesn't want the jury to see it, it
would sink SCO's case! Can't have that, can we?

I don't see it mentioned what date the deposition the edited story of which SCO
presented was taken. What happened to Steve Sabbath between December 22, 2003
and then (whenever "then" was) to get him to change his story?

[ Reply to This | # ]

Shocking!
Authored by: Anonymous on Tuesday, March 16 2010 @ 10:09 AM EDT
The way that Judge Stewart is so blatantly biased against Novell takes ones
breath away. How do "the finders of fact" supposed to find facts if
the judge does not allow them to see all of the facts. Outrageous!

I am so glad that Novell has filed this offer of proof. At this point, they
really need to operate on the assumption that "the fix is in". Of
course, we can't know whether "the fix is in" or not. However, since
there is no better rational explanation, it is now imperative that Novell just
assume that "the fix is in" and act accordingly.

They need to make filings such as this one for each and every impartial act that
the judge makes. There needs to be a permanent record of this judges biases for
all to see.

The funny thing about the judge taking all of these biased positions is that it
is all for naught. Linux does not infringe on any Unix copyrights to begin
with. This is just a big side show. What a silly thing for a judge to waste
his reputation for.

[ Reply to This | # ]

Some kind of fix in?
Authored by: deck2 on Tuesday, March 16 2010 @ 10:09 AM EDT
This "motion" by Novell will be turned down too.

When Judge Stewart's apparant bias to tSCOg in his first few rulings was posted,
I called that the fix was in. With what has happened within the last week and a
half, I am still of an opinion that something is up. However, as some posters
have made reference to, it may be that Judge Stewart wants to get rid of this
mess handed to him by the 10th Circuit Court of Appeals by handing it back to
them. Novell will be able to go back to the 10th CoA with this wheelbarrow load
of horse puckey and possibly a legal "bombshell" planted in it. Maybe
they will change their opinion.

I hope that SCOTUS takes the case and plants a stake in the black heart of
tSCOg's dreams.

[ Reply to This | # ]

Judicial Discretion
Authored by: webster on Tuesday, March 16 2010 @ 10:26 AM EDT
.

Let us hope that when we are in the Novell part of the trial, the Judge will
lean their way. The admission of prior court rulings and the impeachment of
Sabbath issues are guided by rules. But a lawyer often has to remind his client
that the answer to most of his questions is: "It's up to the judge."
Most unfortunately on this impeachment issue, the judge doesn't cite prejudice,
rules or fairness. The basis must be his schedule or worse.

SCO slipped up but the judge protected them from counter attack on the grounds
that admitting the reality of judicial rulings would be prejudicial more than
probative of SCO arguments.

Supposedly Novell slips, but tries to cure immediately. The judge does not
permit them on the basis of a timing gotcha. What about prejudice, fairness and
probative value, judge? Not a mention. A judge would never limit such valid
cross in a criminal trial.

.

[ Reply to This | # ]

Can Novell ask Darl, "For how long do you allege we have been slandering your title?"
Authored by: Anonymous on Tuesday, March 16 2010 @ 10:27 AM EDT
I think this is a good / solid question that Novell should
have every right to ask any of SCO's (live) witnesses AND the
judge should not be able to sustain a SCO objection to it.

[ Reply to This | # ]

Good thinking but hasn't the ruling been mooted and can't be used
Authored by: Anonymous on Tuesday, March 16 2010 @ 10:32 AM EDT
I like this, but I thought Novell couldn't refer to the previous ruling.

[ Reply to This | # ]

Novell "May Call" Steve Sabbath
Authored by: RFD on Tuesday, March 16 2010 @ 10:35 AM EDT
Novell included Steve Sabbath on its "May Call" witness list--Exhibit A-2 to 755

I suspect the Novell probably will call him.

---
Eschew obfuscation assiduously.

[ Reply to This | # ]

So in idiots' terms (i.e. for me)
Authored by: billyskank on Tuesday, March 16 2010 @ 10:35 AM EDT
is the judge basically only allowing evidence that favours SCO, and disallowing
all the evidence that favours Novell?

---
It's not the software that's free; it's you.

[ Reply to This | # ]

Remember the rules in Judge Stewart's court...
Authored by: Anonymous on Tuesday, March 16 2010 @ 11:05 AM EDT
If you want a ruling, you have to file a motion.

This is a notice, not a motion. Novell knows the rules, they aren't expecting a
changed ruling on this.

Judge Stewart keeps telling Novell that they should have more properly prepared
their case during the appeal.

Therefore, Judge Stewart need not ask why Novell is laying down target range
markings all around him...

cpeterson, WINAL

[ Reply to This | # ]

SCO can't afford an appeal
Authored by: Anonymous on Tuesday, March 16 2010 @ 11:06 AM EDT
If a mistrial is declared or Novell appeals, SCO will run out of money and Yarro
will take control.
Is it the job of the trustee to ensure that SCO makes all payments and doesn't
pay for pizza instead of paying Yarro.

[ Reply to This | # ]

This certainly exposes Stewart's bias
Authored by: Anonymous on Tuesday, March 16 2010 @ 11:10 AM EDT

What went before led a number of people to question Stewart's objectivity and impartiality in this case.

I think that now, bias is no longer in question; it's established. Stewart is going to make sure that SCO wins this trial, as far as lies within his (considerable) power. Why, I have no idea.

Novell's only chance is an appeal.

So the best scenario we can hope for is:

  1. Novell's appeal: maybe June? sending the case back for trial;
  2. Another jury trial, with Stewart's biased decisions corrected; Novell would win this; maybe September?
  3. SCO appeals; maybe January?

So this appalling, expensive FUD-train will likely go on into 2011.

[ Reply to This | # ]

Novell files Offer of Proof Re Prior Inconsistent Declaration of Sabbath
Authored by: jacks4u on Tuesday, March 16 2010 @ 11:47 AM EDT
so, ... at what point can Novell claim with certainty and legal foundation, that
this jury is so poisoned by a) mischaractarazations, false testimony and wilful
omissions of evidence, and judicial misconduct that a fair trial is not
possible?

[ Reply to This | # ]

Some confusion on "Offer of Proof"
Authored by: Anonymous on Tuesday, March 16 2010 @ 12:28 PM EDT
Ok, I officially agree with Harvey. I couldn't find the answer from Groklaw. I
had to google it.

Quoting from wikipedia. Hope this is fair use, I tried to include only what was
necessary for our understanding and analysis, but it's a good half of the
article. I didn't want to paraphrase, in case, I used the wrong word and changed
the meaning, IANAL.

"An offer of proof is a kind of motion that a lawyer may present to a judge
or to the official presiding over an administrative hearing.

In the context of a trial or a hearing, a presiding judge may issue a ruling
denying a party the right to proffer evidence. The party aggrieved by this
ruling then has the right to indicate for the record what the evidence would
have shown had the adverse ruling not been issued. This is necessary in order to
preserve the issue for appeal.[1][2]

In jury trials, offers of proof may be made outside the hearing of the
jury.", etc.

So, Novell HAD to do this, to preserve it for appeal.

Warning rant follows, read at your own risk. Which in my mind is crazy. There is
not room for justice in a American legal systems. It happens only if you get the
right lawyers. Being denied an appeal right because you didn't catch something
or didn't know you needed to do some procedure, in a certain way, or lose the
right forever. How can the courts be so blinded by procedure and "you have
to say it like this or it doesn't count" and deny just and impartial
rulings. How is this in any way in keeping with the Constitution's ban on cruel
and unusual punishment. I can think of nothing crueler or unusual punishment
than being denied justice. I''m sure the founding fathers never envision this
purpose for the courts. RAAGHHH!!!! I have to stop now. Just makes me so mad.

-- Celtic_hackr

[ Reply to This | # ]

Jury Options
Authored by: DaveJakeman on Tuesday, March 16 2010 @ 01:14 PM EDT
This has been discussed before, but I only dimly recollect it. In view of
recent events, it might be worth a recap to see how it applies:

Having seen the ugly head of witness collusion -- which they know isn't right
from their daily admonitions -- the jury know there is something wrong in this
picture. They also see these all-too-frequent white-noise huddles. (What's
going on there?) Surely they must realise this isn't how things are suppose to
be. Possibly the denial of Novell's evidence didn't completely fly over their
heads either.

Yet later on, they will be asked to follow the jury instructions the two sides
still haven't agreed upon. Perhaps they might feel railroaded into making a
decision they are not in a position to make. Or something.

What are the jury's options, other than to obediently follow the jury
instructions? Or am I thinking of something else?

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Well this is just a Riot! ...the judge was "helped" to be appointed by the opposing lawyers Dad
Authored by: SilverWave on Tuesday, March 16 2010 @ 01:22 PM EDT
no kidding...

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

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When Novell presents evidence
Authored by: Anonymous on Tuesday, March 16 2010 @ 01:34 PM EDT
When Novell presents evidence, can they not play the second deposition of Mr.
Sabbath?

I can see that it would be better if Novell could quote from it and ask Ms.
Madsen if she realizes that she is contradicting her boss. It would help the
jury cement the tie between these two individuals. But the jury will get to see
that the two are inconsistent for themselves later, will they not?

Or is there more to wanting to do this now?

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Novell *can* win, but they must be forthright
Authored by: Anonymous on Tuesday, March 16 2010 @ 02:08 PM EDT
I believe Novell can and should win this trial.

They cannot do so with the present strategy.

Why? MoFo is implementing the same approach that did not work before the 10th Circuit. It is based on the close reading of particular documents.

Neither the 10th Circuit, or Stewart, or a random jury has patience for that exercise.

In contrast, BSF is presenting a story about business mergers and business needs that has some fundamental and plainspoken logic.

The Novell APA's are an abomination of bad and obscurantist phraseology; especially the un-parseable Amendment #2.

Bad lawyers did not write that document, good lawyers did so, and did so for a reason. Novell has not presented a reason that its lawyers concocted such a un-interpretable piece of work.

I suspect it is a consequence of the BSD decision that cast doubt on the unity and ownership of the ATT source. Others have presented it as a way of encouraging buyout funds to flow to Novell, rather than SCO. Still other commentators have linked it to the [old]SCO vs. Microsoft suit happening in Europe at that time.

These can be summarized as the:
1. BSD damaged good theory
2. The IBM Buyout windfall theory
3. The shakedown-MSFT with ambiguous language theory

It is very telling that *seven* years into the case, even the very most informed observers have no clue why Novell would chose to use such absurd and convoluted formulation as the good lawyers employeed in APA #2.

I maintain to win a case against a Jury, Novell must come clean, and explain in plain language what it was trying to accomplish with the peculiar amendments.

Until it does so, the Jury will side with the 10th Circuit, that felt it was not being told the whole truth. That fundamentally is why the 10th returned the case to the finders of fact. It wanted facts in the case, and Novell had not provided the central piece of evidence.

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Transcripts
Authored by: Anonymous on Tuesday, March 16 2010 @ 02:17 PM EDT

Something I haven't seen addresed here, and I was wondering about: what about
transcripts for the trial so far? Do they become available at all? If so, how soon?
Is there a fee?

Thanks for your time.

bjd

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  • $$$$$$$$ - Authored by: Anonymous on Tuesday, March 16 2010 @ 03:39 PM EDT
  • Transcripts - Authored by: Steve Martin on Tuesday, March 16 2010 @ 04:34 PM EDT
    • Silliness - Authored by: Anonymous on Tuesday, March 16 2010 @ 07:06 PM EDT
      • Silliness - Authored by: Steve Martin on Tuesday, March 16 2010 @ 08:07 PM EDT
      • Silliness - Authored by: Anonymous on Thursday, March 18 2010 @ 02:56 AM EDT
Something to consider? Judge Stewart said "... Mr. Sabbath's declaration.. rebuts Ms. Madsen.."
Authored by: Anonymous on Tuesday, March 16 2010 @ 03:00 PM EDT
Our reporter writes: "Judge Stewart said that he read as much as he could during the
break of Mr. Sabbath's declaration and said that on its own it rebuts Ms. Madsen and
he sees no need to bring her back."

Isn't this a positive point that's being overlooked here by the majority of comments?
To me it seems the matter is clear to Stewart also, and (as the manager of this trial)
he doesn't see the need to bring her back (in consideration for her).
Meaning that he knows there will be a clear jury instruction on this aspect forthcoming.

IANAL, so correct me where and how I might be wrong; I might be whistling in the dark :-/

bjd

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Novell files Offer of Proof Re Prior Inconsistent Declaration of Sabbath
Authored by: Anonymous on Tuesday, March 16 2010 @ 03:14 PM EDT
PJ wrote: But the judge can simply change his ruling, solving the issue.

I respectfully disagree. As with the "to this day" ruling, it isn't
enough for the judge to allow a rebuttal days later, if at all. Even if they
are allowed to hear it, the jury is likely to wonder what is wrong with the
information that they weren't permitted to see it in a timely fashion.

If Judge Stewart is trying to let the jury decide the issues based on the fact,
he isn't doing a very good job of it.

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    The ruling was correct, Stewart is not biased, and the fix is not in.
    Authored by: Anonymous on Tuesday, March 16 2010 @ 05:02 PM EDT

    The amount of drivel being written here is frankly disgusting, especially the completely baseless and stupid insinuations of judicial corruption.

    Novell knew that SCO could call Sabbath as a deposition-only witness. It knew that when the deposition was taken. If it wanted to introduce his 2003 declaration then, it could have done so. Not doing it was a mistake. Novell admitted as much in court.

    Stewart declines to rescue Novell from its mistake. He's made some questionable rulings in the case, but this isn't one of them. Why not? Because Novell can call Sabbath to testify live as a hostile witness and barbecue him on direct examination, using that same declaration. The declaration hasn't been excluded. Novell will have to use up some of its own time to destroy Sabbath, instead of doing it on SCO's time, but they can still do it.

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    The only excuse
    Authored by: Anonymous on Wednesday, March 17 2010 @ 01:30 AM EDT
    The only excuse I can think of for the apparent bias of the judge is that he is
    giving SCO everything he can so that when they lose anyway, they will have no
    grounds for appeal.

    Judge Kimble must surely view this as a slight to his name since this judge has
    apparently decided that Kimble was completely incorrect in his opinions after
    the case before this judge even knows all the facts.

    I'm baffled.. but one thing is certain.. SCO's group have suddenly gotten much
    more professional..

    I'm starting to wonder if they didn't all act like gibbering buffoons (my
    opinion of Darl's announcements and some of the gaffs of their legal team ) last
    time when they realised they were losing for no other reason than to get an
    Appeal with a new judge.

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    Welcome to the US
    Authored by: Yossarian on Wednesday, March 17 2010 @ 07:06 AM EDT
    >I have never seen that happen before, where you are not
    >allowed to impeach a witness by referring to a prior
    >deposition where the witness said something very different
    >from what he says on the witness stand.

    If your favorite team, AKA "the good guys" does not win then
    you just wipe the past scores and tell the teams to play again.
    Repeat as many times as necessary till "the good guys" win.

    [ Reply to This | # ]

    delete - link spam [n/t]
    Authored by: sumzero on Wednesday, March 17 2010 @ 11:35 AM EDT
    this text is not here.

    sum.zero

    ---
    48. The best book on programming for the layman is "alice in wonderland"; but
    that's because it's the best book on anything for the layman.

    alan j perlis

    [ Reply to This | # ]

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