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Novell Anticipates Objections to SCO's Experts' Testimonies - The TK-7 Case
Wednesday, March 17 2010 @ 12:38 PM EDT

Novell anticipates certain questions SCO is likely to ask two of its experts, and rather than having long sidebars, which the judge has already said he doesn't like, they have filed objections they figure they'll be raising, along with a new case that supports their position, TK-7 Corp. v. Estate of Barbouti. This way things can be hashed out in advance.

Novell has found this 10th Circuit case, TK-7, that indicates that Dr. Gary Pisano ought not to be allowed to use the Yankee Group study's numbers as the basis for his opinions, since he didn't look into the methodology. And yes, on the basis of this new case, Novell respectfully says that Judge Ted Stewart's denial of Novell's earlier Daubert motion was in error:

The Yankee Group survey is hearsay, and SCO should not be permitted to dress it up and introduce it as Dr. Pisano's unexamined and untestable opinion.
They have, in short, painted the judge into a corner, and he will either have to follow case law, or he'll have to find a newer case that contradicts the one Novell has found. Judges are supposed to be bound by case law, with a bit of wiggle room. The judge denied the motion without the benefit of this case, which Novell says, "requires a different result." This case is dynamite. Whoever found it fell asleep grinning.

Here are the two Novell filings:

03/16/2010 - 803 - Memorandum of Points and Authorities in Support of Likely Objections to Dr. Gary A. Pisano Testimony filed by Defendant Novell, Inc.. (Attachments: # 1 Exhibit A)(Brennan, Sterling) (Entered: 03/16/2010)

03/16/2010 - 804 - Memorandum of Points and Authorities in Support of Likely Objections to Dr. Christine A. Botosan Testimony filed by Defendant Novell, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Brennan, Sterling) (Entered: 03/16/2010)

In the filing about Dr. Gary Pisano, Novell says that he relied upon the Yankee Group study but admitted he didn't independently evaluate its methodology, relying instead on its general reputation for doing studies. That would render his opinions "insofar as it adopts the survey's figures", hearsay, Novell argues, because of the newly found case:
Under TK-7 Corp. v. Estate of Barbouti, 993 F.2d 722 (10th Cir. 1993), that renders Dr. Pisano's opinion, insofar as it adopts the survey's figures, inadmissible hearsay.

The Court previously denied Novell's Daubert motion, seeking to disqualify Dr. Pisano on this ground. (See Order.) That prior ruling was made without the benefit of guidance from the Tenth Circuit's opinion in TK-7, which Novell respectfully submits requires a different result.

And Novell goes on to quote from the case, and lo and behold, it's a case involving an expert relying on a study without analyzing the methodology or calling the study's author to testify, so relying on the study to calculate losses was deemed inappropriate.

Here's what the court ruled in TK-7, in Novell's words:

In TK-7, Dr. Boswell "adopted the projections of Mr. Werber." 993 F.2d at 732. But "[n]either Mr. Werber nor any other individual involved in the preparation of the market study was called to testify." Id. at 730. Instead "Boswell testified that he was satisfied as to the credentials of the individuals preparing the study," id. at 732. The Tenth Circuit held: "The fact that Dr. Boswell relied upon the report in performing his calculation of lost profits did not relieve the plaintiffs from their burden of proving the underlying assumptions contained in the report," and "Dr. Boswell's use of the projections to form his opinion as to the amount of lost profits clearly failed to meet the requirements of [Federal Rule of Evidence ("Rule")] 703."Id.

Dr. Pisano and SCO are in the same position as Dr. Boswell and his client. SCO will not be calling anyone who prepared the Yankee Group survey to testify, and Dr. Pisano is relying solely on Yankee Group's credentials to vouch for the survey. Thus Dr. Pisano's adoption of the survey's results "to form his opinion ... clearly fail[s] to meet the requirements of Rule 703."

The Tenth Circuit's reasoning in TK-7 is similarly apposite:

Hearsay is normally not permitted into evidence because the absence of an opportunity to cross-examine the source of the hearsay informaiton renders it unreliabl. Rule 703 permits experts to rely on hearsay, though, because the expert's "validation, expertly performed and subject to cross-examination ought to suffice for judicial purposes." Rule 703, Advisory Committee Notes. That rationale is certainly not satisfied ... where the expert failed to demonstrate any basis for concluding that another individual's opinion on a subjective financial prediction was reliable, other than the fact that it was the opinion of someone he believed to be an expert.... Dr. Boswell's lack of familiarity with the methods and the reasons underlying Werber's projections virtually precluded any assessment of the validity of the projections through cross-examination of Dr. Boswell.
993 F.2d at 732. This Court's prior Order was based, at least in part, on the assumption that Novell "does not challenge the underlying methodology of the Yankee Group Survey." (Order at 6.) But just as, in TK-7, "Dr. Boswell's lack of familiarity with the methods and the reasons underlying Werber's projections virtually precluded any assessment of the validity of the projections through cross-examination." id., so too in this case Dr. Pisano's ignorance deprived Novell of its opportunity to conduct the inquiry necessary to ascertain whether the methodology underlying the Yankee Group survey he adopted as his opinion was subject to challenge.

III. CONCLUSION

The Yankee Group survey is hearsay, and SCO should not be permitted to dress it up and introduce it as Dr. Pisano's unexamined and untestable opinion.

As for Christine Botosan, she did her calculations based on Dr. Pisano's opinion, so you can do that math. Novell says it expects to object on three grounds: 1)the Pisano reliance, which "adds another layer of hearsay"; 2) that she should not be permitted to testify beyond what she wrote about in her report (since her report says there was no bad effect on the stock on December 22, 2003, she has no basis for opining that it caused any harm); and 3) that she should not be permitted to testify to prejudgment interest at all, "because this is not a contract case and because SCO's alleged damages are not calculable with mathematical certitude". A footnote says that SCO "appears to be vacillating" about whether to call Pisano. Well, if it was me, I'd think twice. If I were Dr. Pisano, I'd do anything to get out of the humiliation, frankly. Excerpts of Botosan's deposition are attached as Exhibit C.

I gather Novell has noticed two things about Judge Ted Stewart: 1) his first instinctive response tends to be to favor SCO; and 2) if painted into a corner with case law, he is not too proud to reverse himself. We'll see what he does now, but without a doubt it will be hard for him now not to. This is a 10th Circuit case, the facts couldn't be more similar, and unless someone can find something newer that alters the landscape, he is supposed to be bound by it.


  


Novell Anticipates Objections to SCO's Experts' Testimonies - The TK-7 Case | 224 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Novell Anticipates Objections to SCO's Experts' Testimonies - The TK-7 Case
Authored by: Anonymous on Wednesday, March 17 2010 @ 12:48 PM EDT
Thank you
Thank you for staying on the narrow and difficult road.

[ Reply to This | # ]

Toyota (how have the mighty fallen)
Authored by: Anonymous on Wednesday, March 17 2010 @ 12:50 PM EDT
Heh. In 803, asked about the Yankee group, Pisano's answer:
A. No. [¶] I mean, there’s a standard -- I mean, again, doing survey research, there’s a very standard set of approaches that are -- that are kind of used in terms of, you know, sending it out, getting response rates, tracking. [¶] … [¶] Again, a company like Yankee that does this kind of stuff would be really, I think -- you know, this -- [¶] You know, it’s like Toyota making cars. They know how to make cars. These guys know how to do surveys.
And Novell in 803 notes:
(Id. at 217:6–218:2.) “It’s like Toyota making cars.” Not an encouraging analogy.

[ Reply to This | # ]

Corrections here
Authored by: jacks4u on Wednesday, March 17 2010 @ 12:50 PM EDT
Please put the uncorrected bit in the Title

So that PJ can find them...

[ Reply to This | # ]

Wonderful -- This IS Harder To Sidestep...
Authored by: lnuss on Wednesday, March 17 2010 @ 12:53 PM EDT
Good news, it would seem. Of course the judge has done the unexpected and
(almost) inconceivable before, so...

---
Larry N.

[ Reply to This | # ]

Do you sleep at all, these days?
Authored by: jacks4u on Wednesday, March 17 2010 @ 12:53 PM EDT
With so much going on, I think I'd be hard pressed to get it all done, and still
get adequate sleep...

My sincere appreciation for all the good words!

Jacks

[ Reply to This | # ]

Novell Anticipates Objections to SCO's Experts' Testimonies - The TK-7 Case
Authored by: Zak3056 on Wednesday, March 17 2010 @ 01:11 PM EDT
My money says Judge Stewart rules in favor of SCO, again, probably with the
reasoning that Novell should have known before hand, etc, etc.

Like Judge Gross once said: what are they going to do, take him out back and
shoot him?

[ Reply to This | # ]

The Law 101 class I never had
Authored by: mpg on Wednesday, March 17 2010 @ 01:15 PM EDT
Let us all just briefly pause to reflect on just how gosh durned amazing this
entire case is: we've got every possible civil legal action covered, up to and
including a petition to the Supreme Court.

Setting aside the fact that some of us here are favoring one party over the
other and have some stake in the outcome, I know for many of us this whole thing
has turned out to be the Law 101 class we never got in college.

When PJ turns all her posts into a book someday, I'll be in line for a signed
copy.

-mpg

[ Reply to This | # ]

Plugging Holes
Authored by: Anonymous on Wednesday, March 17 2010 @ 01:28 PM EDT
The discovery phase seems to have left a lot for deciding "at trial".
All these years, and there are still pretty big holes to be plugged.

If they started all over again maybe both sides would make completely different
moves. Doesn't look promising in terms of justice.

[ Reply to This | # ]

Novell Anticipates Objections to SCO's Experts' Testimonies - The TK-7 Case
Authored by: Anonymous on Wednesday, March 17 2010 @ 01:28 PM EDT
I predict Judge Stewart will overrule this motion and permit Dr. Pisano's
testimony to be used by SCO. The reason will be that Novell did not bring this
up earlier when they submitted the Daubert motions.

Stewart is clearly on SCO's side.

[ Reply to This | # ]

A question of timing
Authored by: ChrisP on Wednesday, March 17 2010 @ 01:45 PM EDT
From a pre-trial conference or order IIRC each side gets the same amount of
total time for statements, arguments, direct and cross. So if SCO spends too
long questioning their own witnesses they could run out of time to cross-examine
Novell's witnesses in the last few days. Likewise if Novell spends too long
cross-examining SCO's witnesses they could run out of time to present their own
case. Both sides will be checking their stop-watches to see how their own time
is counting down. Could get interesting.

So, will SCO put Dr. Pisano or Dr. Botosan on the stand first? In the normal
course I would expect Dr. Pisano to be first to lay the foundation for Dr.
Botosan's testimony. But now it may be to SCO's advantage to put Dr. Pisano on
first. If an objection to damages upper-bounds is sustained then they could save
some time by not using Dr. Pisano at all.

That they were thinking of not using Dr. Pisano anyway says a lot about his
potential testimony and perhaps the ease with which it could be discredited even
without the 10th Circuit TK-7 opinion.

---
SCO^WM$^WIBM^W, oh bother, no-one paid me to say this.

[ Reply to This | # ]

Judge Stewart and Bias
Authored by: Anonymous on Wednesday, March 17 2010 @ 01:49 PM EDT
In all fairness, I think it's a little early to accuse Judge Stewart of SCO
bias. I think rather he's biased towards getting everything in front of the
Jury that is remotely within the rules, because he's aware of what happened to
the case before, and why it was successfully appealed.

I'd personally deny the motion since Novell had the opportunity to bring this up
before. They can always tear the guy apart on cross. They seem to be doing a
pretty fair job so far.

[ Reply to This | # ]

Whoever found it fell asleep grinning
Authored by: Yossarian on Wednesday, March 17 2010 @ 01:49 PM EDT
But for how long?

Or as the Italians say: "He who laughs last laughs best".

My guess is that the judge will just ignore the case law
and SCO will have a good laugh.

[ Reply to This | # ]

This certainly demonstrates what Novell are paying for in terms of a legal team!
Authored by: GriffMG on Wednesday, March 17 2010 @ 01:56 PM EDT
Simple, dogged hard work.

None of the table banging, no fireworks (yet), just very professional lawyering.
Very impressive.

I suspect the the Judge will find a way to ignore/dismiss it - I don't think it
mentions that Pisano is left handed and that gives him carte blanche to base his
findings not just on the Yankee Report, but also the McDonalds Take Away menu...
See how all the names of the 'dishes' are ranged to the left, and the prices to
the right? That *proves* SCO were hopelessly damaged by the trickery of Novell!

---
Keep B-) ing

[ Reply to This | # ]

Keeping the 10th Cicuit Happy
Authored by: Anonymous on Wednesday, March 17 2010 @ 02:02 PM EDT
I gather Novell has noticed two things about Judge Ted Stewart: 1) his first instinctive response tends to be to favor SCO; and 2) if painted into a corner with case law, he is not too proud to reverse himself.

That is consistent with trying to keep the 10th Circuit happy. Novell is having to cover every base and pin down every fact.

[ Reply to This | # ]

Novell Anticipates Objections to SCO's Experts' Testimonies - The TK-7 Case
Authored by: Anonymous on Wednesday, March 17 2010 @ 03:19 PM EDT
PJ, Thanks for all your work and those reporting on trial. I found a link to the Tk-7 ruling. It is a great read. TK-7 even sounds like SCO. Both having declining sales, both in bankruptcy at trial time, both just hanging on at trial, and hopefully both being desolved.

[ Reply to This | # ]

A particulalry slipshod, substandard, amateurish analysis and defense (the depo)
Authored by: Anonymous on Wednesday, March 17 2010 @ 04:11 PM EDT
More good news, as Pisano's deposition was cleary the most odious of the three.
It was simply the most slipshod, substandard, amateurish analysis and defense
I've ever seen from a suppposed PhD. His "expert" report should have
been withdrawn out of embarrassment.
Thankfully, a sharp researcher in Novell's corner has (hopefully) saved the day
with this case-find. "Dr." Pisano can only hope...

[ Reply to This | # ]

Too Late
Authored by: Anonymous on Wednesday, March 17 2010 @ 04:52 PM EDT
I'm waiting for Judge Stewart to claim that Novell should have anticipated
everything NewSCO was going to allege, and they should have included responses
to it all it in a court filing prior to the APA being signed in 1995. That
would have been the simplest way to handle it, and we wouldn't be where we are
today.

Next, I expect Darl claim that, if you look close enough, you can see Linus on
the grassy knoll.

[ Reply to This | # ]

  • NOT - Authored by: Anonymous on Wednesday, March 17 2010 @ 05:05 PM EDT
I hope the Judge finds some way to ignore this
Authored by: Anonymous on Wednesday, March 17 2010 @ 05:11 PM EDT
I was really looking forward to the cross examination of Dr.Pisano. Eight years
into this marathon I've given up expecting justice. I'm watching now for the
pure entertainment value. The destruction of Dr. Pisano promises to be highly
entertaining.

[ Reply to This | # ]

OUCH!
Authored by: Anonymous on Wednesday, March 17 2010 @ 05:41 PM EDT
That's got to hurt SCO. Two experts, one stone. I think the the Judge is
definitely going to give this one to Novell.

1) Pisano's testimony is now precluded,
2) ergo Botosan's testimony at least in regards to Pisano is now out the window,
because she can't rely on him to testify, because all he can testify to is
hearsay. So while he could back up and support Botosan, He can't back up
himself. He has no foundation, ergo she has nothing to use there.

If the Judge rules against Novell, the 10th circuit has already decided this
matter once, and they aren't likely to back down from it. Almost a guaranteed
point for Novell. Loving it. If I ever need a Lawyer, these are the guys I want.
Or OJ's old lawyer.

[ Reply to This | # ]

Nice to see TSG out-TSGed
Authored by: Anonymous on Wednesday, March 17 2010 @ 06:52 PM EDT

I was going to wait until Judge Stewart's judgment before posting this but I now understand this filing is just to forewarn him of the reason for objections if SCO dare to put Drs. Pisano or Botosan on the stand.

Nice move. If TSG's paralegals DO find a more recent decision it is likely that TSG will be responsible for the "Perry Mason" moment as they almost certainly won't have time to file a document with the court as Novell did.

I take my hat off to Novell's paralegals - I am really delighted that they found that case

The only thing that would delight me more would be if they knew about it earlier but chose not to file until today.

Last weekend I wrote a long post about how disgusted I was with TSG using tardy filing as a tactical weapon, but as the thread I wanted to post in was already superceded several times I did not post it.

Please bear with me now as I vent my spleen by posting that comment here:

March 8th Three days after Novell files their witness lists, and the day before the trial starts Brent Hatch finally files the SCO witness lists including the Proposed Witness List (Depositions) by SCO Group. This identifies, among others, the deposition by Maureen O'Gara. TSG's team had days to review Novell's witness list and Novell had hours to review TSG's.

The following day in his opening statement Stuart Singer became emotive about the deliberate and malicious timing of Novell's statements. First MSS2's notes

"He talked about the Novell press release, on the very day that SCO announced record earnings. Again, lots of outrage in his voice."
"Novell did this to try to harm SCO. Maureen O'Gara said that Stone told her that Novell picked SCO's earnings announcement day in order to 'upend the stock', and that Stone laughed about it."

Tilendor's report:

"Now, did Novell act in good faith? No, it did not. Novell's actions were designed to hurt SCO. The May 28th press release and the December press released were both timed with SCO's quarterly & annual earnings reports to damage SCO."
When issuing the May press release, Mr. Singer claims that Novell CEO Jack Messman did not check to be sure Novell actually owned the copyrights, that he should have discussed it and researched it. He would have found Amendment 2 in the CFO's office had he checked. He was solely focused on damaging SCO on the day of their earnings report. (A video is shown of Chris Stone proclaiming that Novell still owns Unix).

Obviously we haven't seen the transcripts yet so we don't know the exact words he used, but the jury won't see the transcript either. We can therefore expect them to have a similar impression to our reporters and will have gone home that evening with the feeling that Novell was being malicious and vindictive and that it's provably (not proBably - ProVably) so because we are in a court of law and an expensive lawyer wouldn't tell us something that wasn't true.

In My Humble Opinion, Sterling Brennan heard these statements, realized that Maureen O'Gara's deposition (which he had had only a few hours to check would be presented) with its hearsay evidence about Jack Messman's intentions contained enough footgun ammunition to discredit the suggestion of malice and he chose not to challenge those statements. Why interrupt your opponent when he is mistaken and in full flow?

So when Mr. Brennan took the floor he stuck to the script, told the truth, and left for a later occasion the rubbishing of Ms O'Gara's evidence

Boies, Schiller & Flexner have known about Ms O'Gara's dubious testimony for years. There is no doubt that Hatch James & Dodge would have been well briefed about it. There were no last minute contracts to sign on the courtroom steps, no 500 page documents to copy so why did Brent Hatch wait until their opening statement was delivered unchallenged before filing on March 12th a request to disallow the evidence Novell could use to defend itself against that part of the opening statement?

Who was that who was so upset in front of the jury over Novell's timing? I don't think I have seen a clearer and more obvious case of hypocrisy, malice and bad faith from the TSG side. Chutzpah!

Someone asked how they can sleep at night and PJ commented how sleeping on a big pile of money helps. I just wonder how they can subdue their hilarity long enough to sleep. I am sure they are laughing at us "Naïve idealists who believe truth could triumph over hardball lawyering", they're laughing at the jury "Poor suckers - unopposed we could make them believe black is white - our only challenge is to make them believe our story and not Novell's story", and I can't believe they are not laughing at judges Cahn and Stewart, but I don't believe it is appropriate to write what I suspect they are thinking in this forum.

Aaaah! That feels much better. Thank you for time

[ Reply to This | # ]

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