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SCO's Motion to Allow Testimony
Wednesday, March 17 2010 @ 02:42 PM EDT

Yesterday, there was a sidebar discussion about allowing in material regarding why customers chose not to sign up for SCOsource. The judge found a case that he thought was definitive, so it was not allowed in. Today, SCO has filed a motion to allow the testimony that the judge ruled inadmissible, and there is also a letter from Brent Hatch, with the testimony SCO wishes to show the jury attached.

The filings:

03/17/2010 - 805 - Motion to Allow Testimony Pursuant to Federal Rule of Evidence 803(3) filed by Plaintiff SCO Group. (Attachments: # 1 Appendix of Unpublished Cases)(Hatch, Brent) Modified on 3/17/2010 changed docket text from Notice of Filing to Motion (asp). (Entered: 03/17/2010)

03/17/2010 - 806 - DOCUMENTS LODGED consisting of Letter from Brent Hatch. (asp) (Entered: 03/17/2010)

If you recall, Darl McBride was testifying about Google and why they didn't snap up a license, and this is what followed:
Q: Did you have a phone conversation with Google where Google expressed interest?

McBride: Yes.

Objection by Mr. Acker. Objection to line of questioning eliciting responses of people who are not here to testify. Mr. Singer requests to approach with cases to support his ability to question. Judge Stewart discusses the prospect briefly then calls a 10-minute break to allow Mr. Singer to put them together. The jury departs.

After the break, but before the jury returns, Novell's Mr. Acker announces that he's learned something. That SCO can use hearsay of customers, and if we don't object we can too. Mr. Singer states that he's found some 3rd and 4th circuit cases to the effect but not 10th circuit. Judge Stewart says they are both wrong and that in his research he found a 10th circuit case to say the witness may say they were going to take a license, and then that they chose not to, but cannot say why. The case is a criminal one, but he believes it applies. There is some brief discussion of citations and decide to go with the 10th circuit case. Mr. Acker then motions to strike Darl's testimony regarding same but Judge Stewart says it's too late. That Mr. Acker didn't object at the time and that it would be hard for the jury to remember what's being stricken (struck?). But to go from this point forward. The jury is brought back in.

This motion is SCO's follow up. Like Novell, they have seen that this judge is not afraid to change his mind, if they can give him a solid reason. What SCO wants to introduce are snippets from depositions in the SCO v. IBM case, based on SCO's theory that their interests are the same. The specific depositions it wants to include are those of Larry Gasparro, who testified that Novell's intervention made it hard to sell SCOsource, although he then mentions Ev1, which took a license after Novell said what it did about the copyrights. They also want to introduce excerpts from Philip Langer's deposition, a sales guy who reported to Gasparro and mirrors his testimony. It's funny, but SCO doesn't have anyone outside the cabal, if I may call it that, to testify about all this. I mean, not that I'm saying this is the case necessarily, but wouldn't it be easy for a bunch of scammers to get together and say whatever they think will help them hit the jackpot, even if it isn't true? Wouldn't it be more effective if someone from Google or Raytheon or whoever came in and verified it? It's hearsay, after all, so unless you can cross examine and ask them if it's really so, they could say anything and there's no way to determine otherwise.

Just saying. I guess that's why the judge ruled against SCO on this.

The other deposition excerpts are Gregory Petit, who had the unhappy task of testifying about the presentation they made to customers, which we learn included the malloc code, so thoroughly debunked when SCO showed it publicly. If SCO continued to use that presentation after the debunking, I'd be amazed, as I think some might view it as fraud.

Yet SCO now wants to introduce that Petit testimony, as if it never learned that SCO can't claim infringement of the malloc code in the first place. They are so sloppy. They stay on message, I guess you could say, on the other hand, no matter what the facts happen to be. But I think you can see from just this little example why it's not such a good thing to introduce materials from another case. The malloc code isn't involved in the Novell litigation, only in the IBM case. So either they'd have to remove that reference, I think, or it introduces something Novell is in no position to rebut, nor should it have to take the time from its presentation of its case to do so. It's possible, as Hatch points out, to redact appropriately to address any Novell concerns.

SCO also attaches as Exhibit B an excerpt from the deposition of Scott Handy, where IBM's lawyer asserted privilege regarding lawyers' discussions between IBM and Novell. Interestingly, though, SCO's lawyer, Ms. Bach, objects to the idea of there being any such privilege to assert.

I see from the report from yesterday that Novell seems to hope that SCO's wins this motion, as it then opens the door for Novell to put on customers' words in rebuttal. It's perhaps accurate to say it doesn't care either way, in that they are ready to do battle on any field, tilted any which way, with any weapons.

Here are the minutes for the 16th:

03/08/2010 - 807 - **SEALED DOCUMENT** Jury Panel Record. (slm) (Entered: 03/17/2010)

03/16/2010 - 808 - Minute Entry for proceedings held before Judge Ted Stewart: Jury Trial held on 3/16/2010. Out of the presence of the jury the Court deals with pending requests/motions. Testimony heard, exhibits admitted. Trial to continue tomorrow morning at 8:30 a.m. Attorney for Plaintiff: Stuart Singer, Edward Normand, Brent Hatch, Attorney for Defendant Sterling Brennan, Eric Acker, Michael Jacobs. Court Reporter: various. (slm) (Entered: 03/17/2010)


SCO's Motion to Allow Testimony | 83 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
good for Novell?
Authored by: Christian on Wednesday, March 17 2010 @ 03:01 PM EDT
Seems like allowing this would do more to cast doubt on Darl's testimony than anything. Google has like a half a million computers. Can anyone seriously imagine that they were going to pay SCO a couple of hundred $$ for each one? It would be far cheaper to buy SCO.

How long would the trial have to be for Novell to rebut every ridiculous lie told by Darl on the stand?

[ Reply to This | # ]

Corrections here
Authored by: Marc Mengel on Wednesday, March 17 2010 @ 03:03 PM EDT
Remember to put something like "speling" -> "spelling" in
the title of your message.

[ Reply to This | # ]

Off Topic Here
Authored by: SilverWave on Wednesday, March 17 2010 @ 03:11 PM EDT

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

[ Reply to This | # ]

News Picks Here
Authored by: SilverWave on Wednesday, March 17 2010 @ 03:11 PM EDT

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

[ Reply to This | # ]

Is SCO attempting to try the IBM case?
Authored by: Anonymous on Wednesday, March 17 2010 @ 03:16 PM EDT

Is SCO attempting to try the IBM case?

If they win here would that give them some arm-twisting
power to get IBM to make a settlement?

[ Reply to This | # ]

Interesting that DARL admited to distribution of LINUX under the GPL.
Authored by: Anonymous on Wednesday, March 17 2010 @ 03:48 PM EDT
Interesting that DARL admited to distribution of LINUX under the GPL (under
oath, while on the stand).

I am sure no one missed that here!

[ Reply to This | # ]

"...with any weapons..."
Authored by: Anonymous on Wednesday, March 17 2010 @ 03:53 PM EDT

It'll be delicously ironic if the end-result is the Jury coming back heavily against SCOG.... especially with SCOG and Judge Stewart (by order of the Appeals Court) seemingly providing SCOG with a rail gun and trying to arrange Novell to have a knife carved out of soap.

Well.... one must consider this might be a back-firing strategy as it is said soap can wash away most dirt ;)


[ Reply to This | # ]

Jury & Documents under seal
Authored by: SLi on Wednesday, March 17 2010 @ 04:46 PM EDT
Some of the stuff here seems to be documbents under seal. Are such documents
something that can be published to the jury (without unsealing them at the same
time)? Or possibly even an entire jury trial can be held behind closed doors? If
so, is there some legal requirement that the jurors not disseminate or use the
information so obtained? That would seem somewhat onerous to me when you have a
legal duty to work as a juror.

[ Reply to This | # ]

Bring on Google
Authored by: jvillain on Wednesday, March 17 2010 @ 05:15 PM EDT
I would be more than happy to hear testimony from Google in as much gory detail
as possible as to why they never cut the check. I think it could make for a
pretty entertaining read.

[ Reply to This | # ]

SCO's Motion to Allow Testimony
Authored by: sproggit on Wednesday, March 17 2010 @ 05:47 PM EDT
From SCO's Letter to the Court:

"This deposition testimony is admissible in this trial. It has long been the "bedrock authority" in the Tenth Circuit that "testimony adduced in a prior suit may be admissible in a subsequent suit even if the parties are not identical, so long as the issues are so similar that the party-opponent in the prior case had the same interest and motives in his cross-examination that the present opponent has."

Well, bunkum.

The SCO vs. IBM case has morphed several times during it's gestation, but if I understand it correctly, SCO have accused IBM of misappropriation of Intellectual Property - indirect copyright theft.

The SCO vs. Novell case is specifically Slander of Title with various counter-claims thrown in for the entertainment of the general public.

Only in the broadest sense that both cases relate to copyrights could these two cases be "similar". In all other respects they are completely different.

IANAL, but surely there can be no way that Judge Stewart can find in favour of a motion based on this line of thinking? If one were to apply that sort of argument, then SCO could argue that a teenage miscreant stealing a few dollars in change from the till of a corner grocery store was "similar" to the Ponzi Scheme for which Bernard Madhoff was convicted and sentences on the grounds that both cases were about the theft of monies.

I can only hope that Novell and MoFo are giving SCO just enough rope to hang themselves...

[ Reply to This | # ]

looks like...
Authored by: inode_buddha on Wednesday, March 17 2010 @ 06:52 PM EDT
Looks like Hatch is learning from the MoFo's


"When we speak of free software,
we are referring to freedom, not price"
-- Richard M. Stallman

[ Reply to This | # ]

SCO's Motion to Allow Testimony
Authored by: jacks4u on Wednesday, March 17 2010 @ 07:00 PM EDT

but the bad thing is, Novell likely lacks standing to provide rebuttal testimony
from the same SCO v. IBM trial... Which makes this motion something of a one way
street - "What's good for the goose is NOT good for the gander... ) Unless
somehow the entirety of IBM testimony is incorporated into this trial... :)
(insert argument for joining the cases here...)

[ Reply to This | # ]

PJ look at 805 exhibits, page 6-7
Authored by: Anonymous on Wednesday, March 17 2010 @ 08:18 PM EDT
Hey PJ,

Aren't the cases you cite supposed to be supportive of the point you're making??? What are the unpublished cases attached to the motion for? Is Hatch saying his client has mischaracterized previous judgements and is perpetrating a fraud???

92 Fed.Appx. 692, 2004 WL 377664 (C.A.10 (Okla.))
As a final matter, we register our disapproval of the approach plaintiffs' counsel has taken to this appeal. The appellate briefs mischaracterize the district court's rulings.
Also 113 F.3d 1247, 1997 WL 235581 (C.A.10 (Okla.)), 97 CJ C.A.R. 703 Page 1
Mr. Pyron was charged with scheming to defraud investors by inducing them to buy interests in oil and gas leases. At trial, the government attempted to show that through a series of misrepresentations, Mr. Pyron defrauded investors and diverted the money for his own personal use. Mr. Pyron, through his company, Serene Oil, solicited investors for the “Misener Sandstone project.”
Page 2
Mr. Pyron attempts to argue the district court erred in excluding the testimony on the grounds it was hearsay. However, the court excluded the testimony on the grounds the out of court statement was offered to prove the matter asserted and did not fit the Fed.R.Evid. 803(3) exception. Mr. Pyron argues because the statements fit Rule 803(3) it was irrelevant whether the statements were offered for their truth. This argument fails, however, because, as the district court properly held, the statements did not fit the hearsay exception of Rule 803(3). We hold the district court did not abuse its discretion in excluding the testimony based on hearsay.

[ Reply to This | # ]

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