This is the text transcript of day thirteen of the SCO v. Novell trial that began on Monday, March 8, 2010 and ran for 15 days, Monday through Friday, for three weeks, with the Hon. Ted Stewart presiding.
This day is Wednesday, March 24, and the witnesses that day were Greg Jones, Jack Messman, Michael DeFazio and Tor Braham.
Here is Groklaw's eyewitness report from the trial for that day.
Jump to actual transcript start, Part 2,
Part 3.
The transcript of this day is in three parts: part 1
[PDF] [Text], part 2
[PDF] [Text] and part 3
[PDF] [Text].
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IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
THE SCO GROUP, INC., a Delaware | ) | |
corporation, | ) | |
Plaintiff, | ) | |
vs. | ) | Case No. 2:04-CV-139TS |
NOVELL, INC., a Delaware | ) | |
corporation, | ) | |
Defendant. | ) | |
_________________________________ | ) | |
AND RELATED COUNTERCLAIMS. | ) | |
_________________________________ | ) | |
BEFORE THE HONORABLE TED STEWART
---------------------------------
March 24, 2010
Jury Trial
REPORTED BY: Patti Walker, CSR, RPR, CP
[address]
2189
A P P E A R A N C E S
For Plaintiff: Brent Hatch
HATCH JAMES & DODGE
[address]
Stuart Singer
BOIES SCHILLER & FLEXNER
[address]
Edward Normand
BOIES SCHILLER & FLEXNER
[address]
For Defendant: Sterling Brennan
WORKMAN NYDEGGER
[address]
Eric Acker
Michael Jacobs
MORRISON & FOERSTER
[address]
2190
I N D E X
Witness | Examination By | PAGE |
Greg Jones | Mr. Acker (Direct) | 2207 |
| Mr. Normand (Cross) | 2234 |
| Mr. Acker (Redirect) | 2248 |
| Mr. Normand (Recross) | 2250 |
| Mr. Acker (Further Redirect) | 2251 |
Jack Messman | Mr. Singer (Direct) | 2252 |
| Mr. Acker (Cross) | 2281 |
| Mr. Singer (Redirect) | 2290 |
Michael DeFazio | (Deposition) | 2300 |
Tor Braham | Mr. Jacobs (Direct) | 2325 |
| Mr. Singer (Cross) | 2368 |
2191
2192
SALT LAKE CITY, UTAH; WEDNESDAY, MARCH 24, 2010; 8:30 A.M.
PROCEEDINGS
THE COURT: Good morning.
Overnight Novell filed a motion to strike
testimony of damages after June 9th, 2004. The Court will
deny the motion based upon the prior rulings of the Court
and the conclusion of the Court that the defendants are, in
fact, confusing intent and damages. Therefore, it will be
denied.
When will Tor Braham be testifying?
MR. JACOBS: He will be at the end of the day
today, Your Honor, or first thing tomorrow.
THE COURT: Would a solution to this dispute be to
make him available for a deposition today?
MR. JACOBS: I think you're asking me if it's
feasible for us to produce him for a deposition today, and
the answer is yes.
THE COURT: Mr. Singer.
MR. SINGER: I think that under the circumstances
that would probably be the most equitable way to deal with
these issues.
THE COURT: Mr. Jacobs, I think that's what we
better do. It is a confusing issue, but I think there is
merit to your argument that a decision by plaintiff not to
depose him was a part of their strategy and they ought not
2193
to be rewarded for it. But, on the other hand, I am
conscious of the rather limited privilege exercised by the
Wilson Sonsini law firm representative, and if we can solve
the problem by making him available for a brief deposition,
then I would like to request that that take place.
MR. JACOBS: Your Honor, given everything that's
going on, let me urge the briefer side of brief.
THE COURT: It would have to be brief. We're
talking really about, in my judgment, one issue, and that
was the question that was posed to Mr. Alter about whether
or not any communication had gone to anyone at Novell other
than Mr. Bradford as to the retaining of the UNIX
copyrights. That was the question that was posed at the
deposition that a privilege was then exercised.
I'm not saying that the deposition has to be
confined to that alone, but it seems to me that that is the
focal point of the dispute and that's where the deposition
ought to be begin and ought not to extend much beyond.
MR. JACOBS: Let me suggest an hour, Your Honor.
I think that would be plenty to cover the topics.
MR. SINGER: Your Honor, may I note that, in
connection with this issue, last night Novell served -- I
don't know the exact amount, these were served in the middle
of the night -- probably somewhere around 30 documents that
previously were withheld on the grounds of privilege. We
2194
haven't even had time to properly review those, but we
believe that, of course, is also a proper subject to this
deposition. And we think that it wouldn't certainly take
more than 60 or 90 minutes at the outmost, given that's the
ruling.
THE COURT: Novell has asserted from the beginning
and I think they run the risk now of being shown to be not
playing fair, it's not the fact that those documents that
were withheld -- and I was told there were a hundred, at
least the filings would indicate there were a hundred -- are
not relevant. And, you know, if -- well, I would say a
one-hour deposition. All right, counsel?
MR. JACOBS: Thank you, Your Honor.
MR. SINGER: I understand, Your Honor.
MR. JACOBS: Your Honor, just for the record, I'm
holding up the file. It's one red well of documents.
THE COURT: That would not appear to be much if it
weren't for the fact that we're only two days, technically,
away from the end of this trial. So they look big in light
of that.
Counsel, you both met the deadline, but just
barely. I was hoping you would be 30 seconds late and I
then would have disregarded it, but it didn't happen. The
Court will try to get a revised package to you by tomorrow
morning, and then we'll have a jury instruction conference
2195
tomorrow afternoon at three o'clock where you can make your
record if you have opposition to any of the instructions
after we've looked at what you have filed here today. All
right. It may be that -- well, we'll just deal with that at
three o'clock tomorrow.
Any problem?
MR. JACOBS: No, Your Honor.
THE COURT: Is there anything else we need to deal
with then?
MR. JACOBS: Briefly, Your Honor. Just to make
sure we're all on the same page on time, we've reached
agreement with SCO that there is four hours and seven
minutes remaining for Novell's presentation of its case and
three hours and 13 minutes for SCO time at the podium.
THE COURT: All right. You say those are
stipulated times?
MR. NORMAND: We're splitting the difference
between the parties' inexplicable differences of time.
THE COURT: What were the extent of the
inexplicable differences?
MR. NORMAND: We had us at 35 minutes where Novell
had us at one hour and 15 minutes. To be fair, I think
there may be confusion as to how side-bars were being
counted and whatnot, so we agreed to split the difference.
THE COURT: All right. Thank you.
2196
Mr. Acker.
MR. ACKER: Good morning, Your Honor.
With respect to Mr. Messman, the Court will
recall -- and this has to do with time. The Court will
recall that the jury has heard lengthy deposition clips from
Mr. Messman, and we had agreement we would bring him live.
Given the time restraints and the way the evidence has come
in, Novell is not seeking to put Mr. Messman on, simply
producing him because SCO has indicated they want him.
However, I do have a transcript of the depo clips
that were played. SCO put on almost 50 minutes of his
testimony, and we countered with 19 minutes. It's our
position that when Mr. Messman testifies today, the areas
that they have inquired in during the deposition should not
be resewed during the examination of Mr. Messman today.
Those areas included his background, time on the
board of Novell, the APA, discussions regarding anyone who
negotiated the APA, Amendment No. 2, Novell's efforts to
locate a signed copy of Amendment No. 2, the May 28th press
release, the reasons for the May 28th press release, the
June 6th, 2003 press release, whether or not Mr. Messman has
spoken with anyone who had participated in the APA, the
August 4th letter after the June 6th press release, the Wall
Street Journal article, as well as Mr. Sontag's request for
clarification of the APA. Those were all issues that were
2197
covered in depth in his examination. And when they made the
pitch to the Court early on said in a sense what we're doing
is we're continuing Mr. Messman's direct examination.
So given the shortness of time, the amount we need
to cover in the next day and a half, we don't think it's
fair for them to be able to, in our case, continue to put on
evidence that the jury has already heard.
THE COURT: Even if it counts on their time?
MR. ACKER: Even if it counts on their time, yes,
Your Honor. It's a classic asked and answered, particularly
given the tightness of time.
THE COURT: Let me hear from Mr. Singer.
MR. SINGER: First of all, we think we are well
incentivized by the time limits, given that this counts on
our time, to be efficient and not unnecessarily cover ground
that's properly treated in the deposition. But this issue
rises because Mr. Messman was not available to be called the
first week of trial when we asked for him. So in light of
that, and I don't propose that we revisit all the arguments
relating to that issue, the decision was that we could play
his deposition at that time. It obviously would have been
unfair to the plaintiffs to have to wait until now before
they heard anything about Mr. Messman.
The subjects listed by Mr. Acker cover virtually
every issue in this case and certainly every issue relating
2198
to Mr. Messman. I'm entitled to relay issues I'm going to
go to, even if that goes across some of the points that were
raised before. I don't think we should be interrupted by
objections and such saying, well, this question is a
duplicate of a question asked that the jury may have heard
two to three weeks ago. I should be entitled to present a
cohesive direct examination of Mr. Messman as though he was
present here when we asked for him during the first week of
trial.
MR. ACKER: That's really the point, Your Honor.
We gave them the option. We said we'll leave your case open
and you can have Mr. Messman, the full examination in our
case. They chose not to do that. They wanted to put on his
direct testimony, at least portions of it in their case.
They made that decision. So I don't think it's fair for
them now to be able to go back and redo what they have
already decided they wanted to do via video when they knew
he was going to be here, particularly given where we are in
the trial.
THE COURT: Mr. Acker, I think you accurately
reflected what happened. It's true that they wanted him
earlier. You couldn't produce him. They were given the
option of either waiting and taking all of his testimony
live. They chose to put it on by way of deposition. I
think it would be unfair for me to preclude areas of
2199
questioning.
I think what I will do is, number one, I agree
with Mr. Singer, that they are going to have great incentive
to be very efficient because of the amount of time they have
left, but I will instruct them that they ought not to simply
ask the same questions that were asked at the deposition.
If it becomes clear that that's what is happening to the
best of our recollection, the Court's recollection, I will
sustain objections that it's been asked and answered. But I
can't say you can't discuss anything about all these areas
that you just listed because, as pointed out, that would
preclude the necessity of testimony. And I think that
Mr. Singer ought to be allowed to explore further those
areas without asking the same questions over again.
MR. ACKER: For the Court's convenience, I'm going
to proffer the Court a copy of the deposition clips that
were played by defendants.
THE COURT: That would be very helpful, Mr. Acker.
Thank you.
MR. SINGER: Your Honor, I just note, it's not my
intent to go into questions that were substantively covered
before. However, inevitably, just so the jury knows where I
am, for example, I'm going to show them the May 28th press
release as I did in the deposition. I would like to think
that wouldn't elicit an objection because the fact that was
2200
asked and answered, otherwise the jury wouldn't --
THE COURT: Again, I am not going to preclude
areas. If you can ask additional questions about the press
release that were not already covered, you will be permitted
to do so.
MR. ACKER: Thank you, Your Honor.
THE COURT: Counsel, do any of you have anything
else?
MR. BRENNAN: Just so we can complete the lineup,
Your Honor. I think this will be relatively brief.
Last night we were informed by plaintiff's counsel
that they wished to introduce two exhibits that have not
previously been denominated as trial exhibits. They have
been identified as SCO 757 and 758. Your Honor, both of
these are documents the produced in discovery I think in
excess of three years ago. They have been in the possession
of SCO's lawyers for a substantial amount of time. These
are not surprise documents, not newly produced documents.
We're mindful of the fact that a couple of days ago the
Court would not permit Novell to produce AK filings by SCO
on the ground that --
THE COURT: Well, it's more than AK. I mean,
there were other things.
MR. BRENNAN: Right. The point was --
THE COURT: Your point is well taken, Mr. Brennan.
2201
The Court is not going to permit at this late date exhibits
that have not been previously disclosed to the other side.
MR. BRENNAN: Thank you, Your Honor.
MR. NORMAND: Can I make one point on one exhibit,
Your Honor?
THE COURT: You may.
MR. NORMAND: One of the exhibits was an exhibit
to a Novell motion for summary judgment and it's an exhibit
that Mr. Jones was asked about at deposition.
THE COURT: That's not the point, Mr. Normand.
The AK and the other things were probably known to you and
by the other side as well. The point is at this late date
to be coming in with entirely new exhibits I just think is
prejudicial and I cannot allow you to do something that I
precluded Novell from doing just a few days ago.
MR. NORMAND: Very good, Your Honor.
There one last issue, Your Honor.
THE COURT: Before you go, Mr. Brennan, tell me
your order of witnesses today, please.
MR. BRENNAN: Yes, Your Honor. We intend to call
Greg Jones, who is Novell in-house counsel. And as the
Court heard, Mr. Jack Messman, the former Novell CEO, will
be called.
THE COURT: He will be your last witness; is that
correct?
2202
MR. SINGER: That's correct.
MR. BRENNAN: Then we will have the deposition of
Mike DeFazio, the former general manager of the UNIX group.
I think the clip length is about 45 minutes. And then
assuming we're able to get to him, we intend to start with
Mr. Braham. And the Court has indicated this afternoon his
deposition would be conducted. So that's the lineup for
today, Your Honor.
THE COURT: Okay.
Mr. Normand.
MR. NORMAND: Thank you, Your Honor.
The issue that Mr. Singer raised a few days ago
was in what context would it be appropriate for SCO to put
in Novell shareholder value and market capitalization. I
propose to do that with Mr. Jones with Your Honor's
permission.
THE COURT: Any objection?
MR. ACKER: No, Your Honor. I assume if he knows
the answer, but, all right, they can ask.
MR. NORMAND: Your Honor, I propose to do it -- we
could do it in the redacted form, but I propose to do it
with a trial exhibit we have, which is a Novell 10-K.
THE COURT: Why don't we wait and see what the
foundation is.
MR. ACKER: Let's do it the old fashioned way and
2203
see what he has to say.
THE COURT: That's all we can do.
MR. NORMAND: I guess the point we're making, Your
Honor, is we thought we were going to be given the
opportunity to get this in. It seems as if we should be
able to do it with a Novell witness, otherwise we would
simply propose to read it to the Court and to the jury.
THE COURT: Well, let's play it by ear. Okay.
MR. NORMAND: Thank you, Your Honor.
THE COURT: Counsel, we have to talk about juror
number ten. During the voir dire -- I have talked about
this already -- she indicated she had a vacation that was
planned to begin Friday. She and her family are planning to
go to Las Vegas for the weekend. Yesterday she was very
upset because she senses there is no way that the jury is
going to be able to finish its deliberations by Friday.
Therefore, she was asking Ms. Malley what to do.
In the course of that, the jury, among themselves
I guess, said what if we were to, if we can't finish Friday
night, come back Tuesday and allow her then to take her
vacation through at least part of the day Monday. The
alternative would be to have her be the designated alternate
juror and simply dismiss her when we finish the case.
So what is your thought?
MR. SINGER: I think we would like to have a
2204
little bit of time to discuss the implications of that. Can
we respond to the Court at the first break?
THE COURT: Yes.
I think -- and, Sandy, tell me if I'm wrong. I
think if we were able to communicate to her that it would be
all right for her to be gone Monday, the deliberations can
continue Tuesday, that if we can tell her that, that will
solve her emotional dilemma. She apparently is quite upset.
MR. SINGER: My inclination is to say that would
be an acceptable course to not be here for Monday. I would
like to have a chance -- if we could have a few minutes?
THE COURT: I was just going to say, if we can
communicate to her something by the end of today, even if
it's as general as we are aware of your concern and we'll
take care of it, that then leaves us the option of having
her be the alternate. So, please, both sides think about
it. Before today is up, let me know what you think and I
will try to communicate something to her so her mind can be
put to rest.
MR. BRENNAN: Your Honor, I appreciate the Court's
sensitivity. I have one proposal on Novell's behalf. A
happy juror is a better juror. We're of the mind to allow
that decision to be made now so she doesn't spend the day
fretting.
THE COURT: That's a good point, Mr. Brennan.
2205
Those guys want to talk, so let's let them visit
for a second.
MR. SINGER: May we have a couple minutes to
discuss this issue?
THE COURT: Go ahead.
MR. SINGER: Your Honor, SCO is in agreement with
the Court informing this morning juror number ten that this
issue will be worked out in one of the ways that the Court
has enumerated. We're prepared, if she is on the jury and
the decision isn't back Friday, for Monday to be a day that
the jury does not deliberate, we pick up on Tuesday. We're
prepared, alternatively, to discuss the possibility that she
would serve as an alternate.
THE COURT: All right. If I inform her when she
comes in that if the jury is not able to reach a verdict on
Friday, that they can then be dismissed or excused, recess
over the weekend, including Monday, come back Tuesday, will
that be an acceptable alternative?
MR. BRENNAN: That's agreeable, Your Honor. Thank
you.
MR. SINGER: We would suggest, if it meets with
the Court's approval, she be told privately rather than --
THE COURT: The only problem with that, Mr.
Singer, is it affects the whole jury. You know, they are
the ones who are going to have to come back Tuesday as well,
2206
so I think it's probably best. I think it will be
communicated to them through her, in any event, because
apparently yesterday it was a subject of some discussion,
because they were wondering why she was crying.
MR. SINGER: We certainly are in agreement with
her mind being put at ease on that issue as soon as
possible.
THE COURT: That's what I'll do as soon as they
come in.
Mr. BRENNAN: Yes. Thank you, Your Honor.
THE COURT: If there is nothing else, counsel,
we'll have Ms. Malley bring the jury in.
Could you be getting Mr. Jones in, please.
MR. ACKER: I am, Your Honor.
(Jury present)
THE COURT: Good morning, ladies and gentlemen.
Ms. Thomas, we understand that we are causing you
some consternation about your vacation. As I recall, during
voir dire, you indicated to us that you had it planned and
so it was not withheld. I just wanted you to know that if
it became necessary because the jury was not able to reach a
unanimous verdict on Friday, that if the jury decided they
wanted to wait until Tuesday to reconvene to complete the
deliberations, that is something that you can do.
In fairness, let me ask you this, will that solve
2207
your dilemma so your mind is now at rest?
JUROR NO. 10: Yeah, it would.
THE COURT: Let me ask the other jurors, is that
going to create a serious problem for any of you if that is
the outcome? Is there anyone who would have a problem with
that?
Okay. So everyone should put those things aside
and focus entirely on the testimony that you will be hearing
today.
Mr. Acker.
MR. ACKER: Thank you, Your Honor.
Novell will call Mr. Greg Jones.
GREG JONES,
Having been duly sworn, was examined
and testified as follows:
THE CLERK: If you would please state and spell
your name for the Court.
THE WITNESS: Greg Jones. G-r-e-g, J-o-n-e-s.
DIRECT EXAMINATION
BY MR. ACKER:
Q Mr. Jones, if you would adjust that mike up, it might
make it a little easier for you and the court reporter.
Mr. Jones, what do you do for a living?
A I'm in-house counsel at Novell.
Q How long have you been in-house counsel for Novell?
2208
A I think since March of 1992.
Q Can you tell the ladies and gentlemen of the jury what
your responsibilities are as a lawyer inside of Novell?
A So I lead a team of lawyers and paralegals that provide
legal support to our engineering, research and development
teams, product development teams.
Q Where do you live and work?
A In Provo, Utah.
Q At some point in time during 1995 and 1996, or earlier,
did you have occasion to meet someone by the name of Darl
McBride?
A Yes, I did.
Q How did that happen?
A Darl and I both were working at Novell. Darl had
business responsibilities with Novell Japan. I had legal
responsibilities for Novell Japan. I think it's in that
context of when he and I first met.
Q So you worked together for a short period of time?
A Yes.
Q Let me fast forward now to 2002. Were you contacted by
Mr. McBride?
A Yes, I was.
Q Approximately when did that occur?
A It was in the fall. I think the first contact was
October 10th, was the first contact.
2209
Q When you say contact, was that an in-person
conversation or telephone call?
A It was a telephone call.
Q Who called whom?
A Darl McBride called me.
Q Do you recall before October of 2002 when was the last
time you had spoken with Mr. McBride?
A The last time I had spoken to Darl was probably when he
left Novell, sometime in the mid 1990s.
Q What did Mr. McBride say to you?
A So when he called me, he kind of updated me on his
career. He told me that he had just joined Caldera, the
company that later would be called The SCO Group. He had
joined them about three months earlier as their CEO. He
described to me that SCO was collecting UNIX royalties for
Novell as they were required to by the agreement and how
they were paid five percent of those royalties and said, you
know, that's not really cost efficient for us. It costs us
more to collect the royalties than we're getting paid, kind
of mentioned that. Then he said they were looking into
whether users of Linux might be violating UNIX intellectual
property rights in some way.
Then, in that call -- or it could have been in a later
call in November, he mentioned that in the agreement between
Novell and SCO called the asset purchase agreement whereby
2210
Novell had transferred certain parts of the UNIX business to
SCO, that that agreement excluded copyrights, and so those
copyrights stayed with Novell and had not transferred to
SCO. And he said he thought that must be some type of
clerical error or something in the agreement.
Q Did he ask for anything in that first call?
A I can't recall him actually asking for something in
that first call.
Q Did you respond at all to his statement regarding the
copyrights being excluded?
A Yes. Yeah, he had pointed out to me in the agreement
where they were excluded, so I agreed with him the agreement
did exclude the copyrights.
Q Did you agree with him his statement that this was some
sort of a mistake or some sort of clerical error?
A No. I told him I understood what he was saying, why he
might have a question, but I didn't agree with him that it
was a clerical error that led to those copyrights being
excluded.
Q After the first conversation in October of 2002, did
you have subsequent calls or conversations with Mr. McBride
or other folks at SCO?
A Yes. The first one was from Joanie Bingham, who I
understood to be an assistant to Darl McBride of The SCO
Group. She left some messages for us.
2211
Q Did you actually call Ms. Bingham back?
A Yes. Yes, I did.
Q After that conversation, did you document your call
with her in an e-mail?
A Yes, I did.
Q Let me show you, Mr. Jones, what we've marked as
Exhibit G-11, and ask you to take a look at that. Do you
recognize it?
A Yes, I do.
Q What is it?
A This is an e-mail I wrote about the conversation that I
had with Joanie Bingham, an e-mail I wrote about that
conversation.
Q Either from your memory or reading from the e-mail
itself, can you tell the ladies and gentlemen of the jury
what Ms. Bingham said to you and what you said to her on or
about the 15th of November in 2002?
MR. NORMAND: Your Honor, I am not sure we have
laid a foundation for the use of the document if Mr. Jones
is going to read from the document.
THE COURT: I will not allow him to read from it
until you've asked him whether or not he needs his memory
refreshed. Let's just lay the foundation properly, Mr.
Acker.
//
2212
BY MR. ACKER:
Q Do you have a recollection of the call from Ms.
Bingham?
A Yes, I do.
Q Can you tell the ladies and gentlemen of the jury what
you said to her and what she said to you?
A Yeah. Basically she left me these messages, and in her
messages she had wanted access to our files -- some of our
files at Novell. So I asked her, you know, what she needed,
why she wanted access to these files. She said she had an
assignment from Darl McBride, her boss, to help him with
some type of IP tracking. He wanted to know something
about -- I believe it was the agreement between Novell and
UNIX System Laboratories when Novell had purchased the UNIX
business from AT&T, and at that time AT&T had a company
called UNIX System Laboratories. I think she was saying
that Darl would like her to get access to those, look into
them. And I told her, you know, I need to understand this
better, so I'm going to be calling Darl.
Q So you left her that you were going to call Darl
McBride directly?
A Yes.
Q Did you do that or was there a subsequent telephone
conversation with Mr. McBride?
A Yes, there was.
2213
Q Do you recall approximately when that was?
A Within several days of this e-mail. I can't remember
the specific date.
Q Did you actually speak with Mr. McBride?
A Yes, I did.
Q Did you draft an e-mail after speaking with him, after
this call with Ms. Bingham?
A Yes, I did.
Q Let me show you what we've marked as Exhibit K-11. Do
you recognize what that is?
A Yes, I do.
Q What is it?
A This was an e-mail that I wrote on November 20th
reporting a phone call that Dave Wright -- Dave Wright is
someone at Novell who works in our corporate development
team. So in this an e-mail I talk about a conversation that
Dave Wright and I had with Darl McBride on that day,
November 20th.
Q Did you document in this e-mail the substance of the
conversation with Mr. McBride after it happened?
A Yes, I did.
Q Can you tell the ladies and gentlemen of the jury what
it was that Mr. McBride said to you and to Mr. Wright and
what, if anything, you said in return?
MR. NORMAND: Again, Your Honor, as long as
2214
Mr. Jones is not reading off the document.
BY MR. ACKER:
Q Do you have a memory of what was said?
A Yeah. So basically we wanted to get back in touch with
Darl to find out why he wanted access to these materials.
He said he wanted to research the IP rights that SCO might
have in UNIX, what rights they have, and this was for the
purpose of looking at pursuing end users of Linux if they
were violating UNIX intellectual property rights.
He also suggested -- he brought up again the fact that
SCO was collecting these SVRX royalties of Novell's that
were being sent to us and suggested that, you know -- I
think what he was saying is that people might be moving from
SVRX to Linux, so if we, SCO, are taking IP enforcement
actions against these Linux users, maybe your SVRX revenues
will be supported in some way so you will get more revenues.
So, Novell, this might be in your interest to help us out
this way, to give us access to the information because it's
going to help with those revenues.
I basically told Darl, you know, that's sensitive, you
may be getting into litigation with third parties. That's
very sensitive for us to be sharing information with you in
that context. Also some of the materials you're asking for
may be confidential. Then said I would get back to him.
Q Is that how you left the conversation with Mr. McBride
2215
on November 20th?
A Yes.
Q What did you do internally after that telephone call
with Mr. McBride and Mr. Wright on November 20th?
A So, for example, I wrote this e-mail. I wanted to
inform my boss and people in the legal department that this
contact had happened, so I wrote this e-mail.
I also brought this to the attention of Carl Ledbetter
and Chris Stone, they were the executives responsible for
Novell's research and development and product development
efforts at Novell at the time, to find out what their
reaction was, if they would have any interest in supporting
SCO in these types of activities Darl was describing to me.
Q Did you get a response from either Mr. Stone or
Mr. Ledbetter, or both?
A I got a response, yeah, from both of them. They said
no, they were not interested in supporting these efforts.
Q Did you have a subsequent telephone conversation with
Mr. McBride in the fall or winter of 2002?
A Yes, I did.
Q Did you document that in an e-mail as well?
A Yes, I did.
Q Let me show you what we've marked as R-11. Do you
recognize that?
A Yes, I do.
2216
Q What is it?
A This was an e-mail I wrote on December 4th, 2002
reporting on a conversation that Dave Wright and I again had
with Darl McBride on that day, December 4th.
Q Could you tell the ladies and gentlemen of the jury the
substance of that conversation on December 4th?
A Yes. So basically we got back to Darl, followed up
with him, let him know that Novell was not going to be
supporting him, this research effort that he was undertaking
to find these documents and so forth.
And, you know, Darl can be very persistent, so he -- so
he tried to advocate, I still think this is in your interest
to help us out. This would still be something that would be
beneficial to you. And so we just let him know, well, there
are several reasons why Novell had made this decision not to
support SCO's efforts in this regard.
Q What were the reasons?
A Well, one was, you know, he had said we have these SVRX
revenues, those might be supported in some way by his
activities. And we said, we don't know if that's going to
happen, that may not necessarily happen. Also it's really,
again, sensitive that this may involve litigation with third
parties. And also, you know, to go access these materials
and do the research and do this type of due diligence
effort, that takes time and resource and it's just not
2217
something we're going to spend our time on.
Lastly, you know, that we have customers and partners
that distribute Linux and they use Linux, so, you know, we
value those relationships more than we would any other type
of benefit, such as those SVRX revenues being a benefit in
some way.
Q At any point during your first conversation in October,
your conversation on November 20th or this conversation on
December 4th, did you ever agree with, in any way, Mr.
McBride's position or statement that somehow the exclusion
of copyrights in the asset purchase agreement was somehow a
clerical error or mistake?
A No, I didn't.
Q How did Mr. McBride react when you told him you weren't
going to be -- Novell was not going to be participating or
assisting in his efforts?
A Well, so Darl, you know, very, very persistent, saying,
well, you know, who's making these decisions, who's calling
the shots, I would like to explore this further. So I let
him know that basically, you know, these individuals had
been identified to you before, Carl Ledbetter and Chris
Stone. They are on the executive management -- they were at
the time on the executive management team at Novell, the
worldwide management team, the highest level. So I told
Darl our highest executive level had made that decision.
2218
That's who was calling the shots. And then he indicated
that he would, you know, be revisiting the topic.
Q After the holidays into 2003, did you have subsequent
contact with someone from SCO on the issue of the
copyrights?
A Yes, I did.
Q What happened?
A Well, I was contacted by Chris Sontag. Chris Sontag
worked with Darl at SCO and he had responsibility for this
licensing program that Darl had mentioned to me earlier, so
he had responsibility for that and was contacting me in that
context.
Q Do you recall approximately when that call was with
Mr. Sontag?
A This was sometime in February, I think mid February,
maybe around -- one of them was around the 20th of February.
Q Did you subsequently get an e-mail from Mr. Sontag
after the call?
A Yes, I did.
Q Let me show you what we've marked as Exhibit V-12. Do
you recognize V-12?
A Yes, I do.
Q There appears to be two e-mails here; is that right?
A Yes.
Q One from Mr. Sontag and from you on the bottom; is that
2219
right?
A That's right.
Q What is the date of that e-mail to you?
A The one to me is February 20th.
Q And you responded back to him on the following day?
A Yes, I did.
MR. ACKER: Your Honor, I move for admission of
Exhibit V-12.
MR. NORMAND: No objection, Your Honor.
THE COURT: V-12 will be admitted.
(Defendant's Exhibit V-12 was received into
evidence.)
MR. ACKER: Highlight the first e-mail at the
bottom from Mr. Sontag, Mr. Lee.
BY MR. ACKER:
Q So, on the 20th, Mr. Sontag wrote to you and said,
attached is a first cut at a side letter to clarify the
issues that we discussed yesterday. I will give you a call
later, or feel free to call me on my cell. Regards, Chris
Sontag. Does that help you place the date of the telephone
call with Mr. Sontag?
A Yes.
Q When was it?
A Pardon?
Q When was the call?
2220
A February 20th -- well, so this is -- let me see.
So it's February 19th.
Q Do you recall what was discussed with Mr. Sontag in the
call on February 19th?
A So what had happened is obviously we had -- Novell had
rejected SCO's request that we provide them with research
assistance and access to documents and so forth. But then
Chris came back because they were still concerned the asset
purchase agreement was left with saying the copyrights were
excluded from the transferred assets, so they are staying
with Novell, SCO wants them to be with SCO. So they are
wanting to change this in some way.
So I basically told Chris, look, we've told you we're
not going to do this research and so forth for you.
Whatever -- if you want to send a written document, some
terms that we just evaluate one time and get back to you,
then I could look at that.
Q Is that what Mr. Sontag attached to his e-mail on the
20th, what he refers to as a side letter?
A Yes.
Q If we go up to your response to him on the 21st, you
wrote, Chris, as I mentioned on the phone, I need to work in
conjunction with a business person here at Novell, and I am
still trying to get a business person assigned to this. I
will keep you posted. What did you mean by that?
2221
A Well, that, you know, I'm in-house counsel at Novell
and so I'm their lawyer, but decisions like this need to be
made by the appropriate -- people in appropriate authority,
the business people, the management team. So I told that to
Chris. So he had sent me this document. So basically I'm
telling him I'll take a look at it and I will take it to the
appropriate executive or people in management at Novell.
Q Let me hand you what has already been admitted, the
final page of Exhibit I-31. Take a look at that.
MR. ACKER: If we could bring that up, Mr. Lee.
BY MR. ACKER:
Q Is this the side letter that Mr. Sontag sent to you on
the 20th of February of 2003?
A Yes.
Q If we take a look at the first sentence --
MR. ACKER: Actually, just highlight the entire
body of it for the jury.
THE COURT: Excuse me. You say I-31?
MR. ACKER: Yeah, the final page of I-31, Your
Honor.
MR. NORMAND: Your Honor, the final page of I-31 I
think has been admitted as the redacted portion of SCO 615.
THE COURT: That's why I was confused.
MR. ACKER: Thank you for that clarification.
THE COURT: Go ahead.
2222
BY MR. ACKER:
Q If you go down to the signature page. So this was a
proposal that SCO was making to Novell. Do I have that
right?
A Correct.
Q And if we can go up to the top of the body of it, we
can see the first sentence, what Mr. Sontag was proposing
was a letter that says this letter clarifies the intent of
the parties with respect to the above-captioned transaction,
correct?
A Correct.
Q Then if we move down to the sentence that begins we
wish to clarify the following?
A Yes.
Q Below that bullet point one says, all right, title and
interest in and to copyrights associated with the AT&T SVRX
agreements held by Novell at the time of the asset purchase
agreement were intended to be in part of the included assets
identified in schedule 1.1(a). Do you see that?
A Yes, I see that.
Q Did you have an understanding when Mr. Sontag sent this
to you in February 2003 why he wanted that language changed
in the APA?
A Only that he was involved in their licensing program,
he had responsibilities there, and so this was in that
2223
context.
Q Did you understand in the APA that, in fact, the
copyrights to the UNIX code were not included in the
transferred assets?
A Yes.
MR. NORMAND: Objection, Your Honor.
THE COURT: Excuse me.
MR. NORMAND: Objection, Your Honor, calls for a
legal conclusion, among other things.
THE COURT: I'll overrule the objection.
BY MR. ACKER:
Q If we go down to bullet point number two, Mr. Sontag
was also asking that no right, title or interest in and
copyrights associated with the AT&T SVRX agreements
otherwise held by Novell at the time of the asset purchase
agreement were intended to be part of excluded assets
identified in schedule 1.1(b). Do you see that?
A Yes.
Q So what were you understanding that Mr. Sontag was
asking Novell to do with respect to the excluded asset
portion of the asset purchase agreement?
A Well, this language is directly in conflict with the
actual language of the asset purchase agreement, so I
understood him to be saying, you know, the asset purchase
agreement says the copyrights are here. I want to have some
2224
document that says that they should be here with SCO.
Q When you say at first that the copyrights were here,
referring to --
A To Novell. So basically under the asset purchase
agreement copyrights are with Novell and he's saying I want
something that says that they were intended to be with SCO
and they should be with SCO.
Q Again, this request is being made to you in February --
around February 20th, 2003?
A That's right.
Q What did you do with this request from Mr. Sontag?
A So I reported this to Chris Stone, the executive I
mentioned earlier, and asked -- and basically he rejected
this and said no, Novell would not do this.
Q Would not do what?
A Would not accept this proposal, sign this document.
MR. NORMAND: Your Honor, I move to strike because
there was an objection at his deposition to subsequent
conversations with any business person.
MR. ACKER: Mr. Stone has already provided that
testimony in this courtroom, Your Honor.
MR. NORMAND: That doesn't mean it comes in
through, Mr. Jones, Your Honor.
THE COURT: Mr. Acker, are you disputing that a
privilege was exerted?
2225
MR. ACKER: Off the top of my head, I don't know,
Your Honor.
THE COURT: I'm going to have to rely upon Mr.
Normand's representation, and I would agree that anything
privileged ought not to come in through this witness. So
the Court will instruct the jury to disregard the answer to
the question just given regarding this conversation with Mr.
Stone.
BY MR. ACKER:
Q Did you respond back to Mr. Sontag?
A We responded back to him. I can't remember
specifically if I called him or how we got back to him, but
we got back to him and let him know what the response was.
Q What was the response?
A The response was no, that their proposal was rejected.
Q At some point in early 2003, sometime before May 28th,
2003, did you see a copy of -- an unexecuted copy of what is
Amendment No. 2 to the asset purchase agreement?
A Yes, I did.
Q Can you explain to the jurors how that happened?
A Well, so we had had these contacts from SCO asking
about the asset purchase agreement, you know, dealing with
the copyright ownership issue. We started to review some of
our documents internally at Novell. In the course of doing
that, we came upon this unsigned Amendment No. 2 to the
2226
asset purchase agreement.
Q Do you recall where that was found?
A No.
Q Did you make any efforts to find an executed copy of
Amendment No. 2?
A A member of our legal department was given the
assignment to see if there was a signed Amendment 2 in the
files of Novell.
Q Did that occur before May 28th, 2003?
A Yes, it did.
Q Was that person able to locate a signed copy of
Amendment 2?
A No, he was not.
Q Where, typically, at Novell are legal documents --
these contractual documents maintained?
A In the legal department itself, in our law department,
in our file room, or in our archives that the legal
department has sent off-site.
Q Is that where the person on your team that was assigned
to look looked for the executed copy of Amendment 2?
A I'm sure the places he looked included those locations.
Q At some point in time in 2003, did you see a signed
copy of Amendment 2?
A Yes, I did.
Q When was that?
2227
A June 6th, 2003.
Q Do you know how it was that you came to see that?
A Yes. SCO had located a signed Amendment 2 and they
faxed that to Novell, and that's when I saw the signed
Amendment 2.
Q Was that the first time you saw a signed copy of it?
A In 2003, that was the first time I saw a signed copy.
Q Subsequently was the signed copy of Amendment No. 2
located in Novell's files?
A Yes, it was.
Q Do you know where it was found?
A It was found in the tax department.
Q Was that a relatively unusual place for a contract to
be found?
A Well, it was not where we store our documents. It's
not -- they may have occasion to review our documents, but
it's not where we store them. It's not our file room, you
know.
Q At some point in time in the fall of 2003, did Novell
register copyrights with the U.S. Copyright Office for the
UNIX code?
A Yes, we did.
Q Let me show you what is marked as U-45. Let me show
that to you, Mr. Jones. Do you recognize what that
compilation document is?
2228
A These are the certificates of registration that were
given to Novell after Novell applied for copyright
registrations on versions of UNIX.
Q What was the latest version of UNIX or UnixWare that
Novell filed a copyright registration for?
A I believe it was UNIX SVRX 4.2MP.
Q Is UNIX SVRX 4.2MP the version of UNIX that was in
existence prior to the closing of the APA in 1995?
A Yes.
Q Is that the most recent version that was in existence
prior to the closing of the APA in 1995?
A To my knowledge, yes.
Q Did Novell have to pay money in order to get those
registrations on file?
A Yes.
Q How much?
A The fees we paid the copyright office totaled $9,540.
THE COURT: Mr. Acker, are you going to offer
U-45?
MR. ACKER: Yes. I'm moving to admit Exhibit
U-45, Your Honor. I believe there is a stipulation on its
admissibility.
MR. NORMAND: There is, Your Honor. The other
half of the stipulation is our similar compilation will come
in. I propose to do that with Mr. Jones as well.
2229
THE COURT: All right. U-45 will be admitted.
(Defendant's Exhibit U-45 was received into
evidence.)
BY MR. ACKER:
Q Let me show you two documents, Mr. Jones, X-23 and SCO
Exhibit 756. X-23 is a document. Can you refresh the
ladies and gentlemen of the jury's memory about what that
is?
A So after Novell obtained these registrations, we were
concerned that SCO had been saying that they were the owners
of these copyrights. So we felt it was important that we
make it known we had obtained these registrations. So one
of the things that we did was on December 22nd, 2003 post on
Novell's Web site correspondence we had with SCO on this
topic and a statement that we had obtained these copyright
registrations, and letting people know if they wanted to see
these registrations, they were available on the copyright
office Web site.
Q Do you know what documents were posted on December
22nd, 2003 in connection with this press release?
A I know it was correspondence between Novell and SCO on
this topic.
Q On the topic of?
A The topic of copyright ownership and Novell's belief
that Novell is the owner of these copyrights under the asset
2230
purchase agreement.
Q If you can look at SCO Exhibit 756. Do you recognize
what that is?
A Yes.
Q What is that?
A This is a press release from Novell on January 13th,
2004. It's announcing that Novell -- by this time Novell
has just acquired SuSE Linux. So now Novell is in the Linux
business directly and we are going to be distributing Linux.
This is telling our customers at this point that we have an
indemnification program. So basically if anyone were to
tell you that your use of Linux violates their rights, then
we will back you up, we've got your back, we'll support you,
and also saying that we actually believe that we are the
rightful owner of the UNIX copyrights. So that's basically
what this is announcing.
MR. ACKER: Your Honor, I move for admission of
SCO Exhibit 756.
MR. NORMAND: No objection, Your Honor.
THE COURT: It will be admitted.
(Plaintiff's Exhibit 756 was received into
evidence.)
BY MR. ACKER:
Q Unfortunately Mr. Lee doesn't have it in the system
yet, so I'm going to have to ask you some questions about
2231
it, Mr. Jones.
Turn to the second page of the document. Do you see
there's a section there that says copies of relevant
correspondence between Novell and SCO are available and it
gives the Novell Web site address? Do you see that?
A Yes.
Q Do you know what correspondence -- what body of
correspondence went up on the Novell Web site as of January
10th, 2004?
A Well, in general it was correspondence back and forth
between Novell and SCO on the topic of ownership of these
copyrights, then also some other contractual issues that the
two companies had with each other.
Q Why was it that Novell decided to put all the
correspondence between itself and SCO up on its public Web
site?
A Well, this had become a matter of great public concern.
The things that SCO was doing were very visible, very
public, so we felt there was a need to put people on notice
of Novell's position in what we believe the true situation
was, and so just to be transparent and put those materials
out there so that people have the opportunity to go view
them.
Q Did you also put up what SCO had asserted its position
was in the correspondence it had sent to Novell?
2232
A Correct. It was correspondence, it was the back and
forth. It was the Novell letter to SCO, here's the letter
back to Novell from SCO, and the back and forth that was
going on.
Q That correspondence remained up on Novell's Web site
over the next five, six years?
A Yes.
Q Were you aware and did you review a ruling by a
district court in this case on a motion for remand and a
motion to dismiss on June 9th, 2004?
THE COURT: One second.
MR. NORMAND: Objection, Your Honor. I don't know
that a side-bar is appropriate, but this has been an ongoing
issue.
MR. ACKER: I believe the Court's ruling the other
day is we could go into this issue with respect to punitive
damages.
MR. NORMAND: We have an issue with respect to
which he came to it, Your Honor.
MR. ACKER: If the Court will let me lead.
THE COURT: You go ahead and lead.
MR. ACKER: Yes, Your Honor.
BY MR. ACKER:
Q Did you review that ruling on June 9th, 2004,
Mr. Jones?
2233
A Yes.
Q Was there anything in that decision of the district
court of June 9th, 2004 that you believe was inconsistent
with Novell's continuing assertion that it owned the UNIX
copyrights?
A No.
Q Did you also review an order granting summary judgment
of August 10th, 2007 by the district court in this case?
A Yes, I did.
Q Was there anything in that order granting summary
judgment that was inconsistent in any way with Novell's
continued assertion of ownership of the UNIX copyrights?
A No.
Q Did you also review the Tenth Circuit Court of Appeals
decision on August 24th -- dated August 24th, 2009 in this
case?
A Yes, I did.
Q Was there anything in that opinion that was
inconsistent with Novell continuing to maintain its position
into 2009 that it was the owner of the UNIX copyrights?
A No.
MR. ACKER: That's all I have, Your Honor.
THE COURT: Mr. Normand.
MR. NORMAND: Just a moment, Your Honor.
//
2234
CROSS-EXAMINATION
BY MR. NORMAND:
Q Good morning, Mr. Jones.
A Good morning.
Q You just mentioned the Tenth Circuit opinion. Do you
recall that?
A Yes.
Q You've read that opinion?
A Yes.
Q You understand that that opinion is why we're having a
trial here, correct?
A Yes.
Q You understand that this trial could result in a
situation in which Novell does not own the UNIX and UnixWare
copyrights, correct?
A Yes.
Q You understand that SCO is bringing a claim for slander
of title at this trial, correct?
A Yes.
Q That prospect has no bearing on your testimony on
whether you wanted to keep that information up on Novell's
Web site, right?
A That's correct.
Q Now you were asked, Mr. Jones -- let's look at SCO
Exhibit 756. This is a Novell press release in which it
2235
announces that it's offering SuSE Linux enterprise server
customers a new indemnification program, correct?
A That's right.
Q And Novell made this announcement shortly after IBM had
invested $50 million in Novell, correct?
A I know that was part of the transaction. I don't know
the date that the investment took place.
Q Mr. Jones, Novell has a joint defense agreement with
IBM, correct?
A Yes.
Q That agreement exists because Novell and IBM share
common interests opposing SCO's claims in litigation,
correct?
A I know there was a joint defense agreement, and there
is a commonality of interest. If it fits exactly your
description, I wouldn't be surprised. I know there is a
joint defense agreement.
Q That joint defense agreement existed prior to
January 2004, correct?
A I don't know what date the joint defense agreement was
put in place.
Q If I were to represent to you there's been testimony it
began in May 2003, would that refresh your recollection?
MR. ACKER: Your Honor, there has been no such
testimony. If he has a question, he should ask him. He
2236
shouldn't be testifying.
THE COURT: I will sustain the objection and ask
you to rephrase the question.
BY MR. NORMAND:
Q The relationship began in May 2003, is that right,
Mr. Jones?
A I don't know when the joint defense agreement was put
in place. I don't know.
Q You know that counsel for IBM spoke with counsel for
Novell in the spring of 2003, correct?
A Yes.
Q You know there have been discussions about those
communications in discovery in this case, correct?
A Yes.
Q Now you spoke about your communications with SCO in the
fall of 2002. Do you recall that testimony?
A Yes.
Q Those conversations included discussions about
copyrights; is that right?
A That's right.
Q You don't recall all of the exact language that SCO
used in those discussions, correct?
A Yeah, the exact words, the exact language that they
used, I wouldn't remember that.
Q I think you did say that you recall the gist of the
2237
conversations was that Mr. McBride thought the original
language of the asset purchase agreement on the issue of
copyrights contained a clerical error; is that right?
A Yeah, that was part of what he said was that he thought
there was a clerical error.
Q You understood him to mean that the original language
of the asset purchase agreement on the issue of copyrights
can't reflect what the parties intended, correct?
A That seemed to be what he was expressing.
Q Now you understand that Mr. McBride wanted to correct
what he regarded as a clerical error, correct?
A Yes.
Q Now the internal e-mails Mr. Acker asked you to look
at, in none of those e-mails did you assert that Novell
owned the copyrights, did you?
A There was no need to. It was understood, Mr. McBride
had brought to my attention the asset purchase agreement
excluded the copyrights.
Q In those e-mails you weren't speaking to Mr. McBride,
correct?
A I was not. Those e-mails don't -- those e-mails report
discussions that I had with Mr. McBride.
Q So you never said to Mr. McBride in the discussions
Novell owns those copyrights, correct?
A In effect, I did because he told me the asset purchase
2238
agreement excluded the copyrights and I agreed with him.
Q So that is something you are saying you told Mr.
McBride but you did not report in your e-mails; is that
right?
A Correct.
Q Why is that?
A Again, I think Novell's ownership of the copyrights was
well understood by us.
Q It's your testimony that before you heard from
Mr. McBride in the fall of 2002 you believed that Novell
owned the UNIX and UnixWare copyrights?
A Before that happened -- well, in 2002, I would have
had -- when he called me, it had been a long time since I'd
even looked at the issue.
Q You didn't know whether Novell owned the UNIX or
UnixWare copyrights before you spoke with Mr. McBride?
A At the moment he called, I didn't have an
understanding, didn't have a recollection.
Q Let's look, Mr. Jones, at what we've shown to you,
Exhibit R-11.
MR. NORMAND: If we could blow up the full text of
that language.
BY MR. NORMAND:
Q This is an internal e-mail, Mr. Jones, from December
4th, 2002 to your colleagues at Novell from yourself; is
2239
that right?
A That's correct.
Q You say at the bottom of the second to last paragraph
that you did not mention in any way Novell's own interest in
becoming more active in the Linux area in a more direct
manner. You say that, correct?
A That's right.
Q So in this internal e-mail you were acknowledging you
were not straight with Mr. McBride in your discussion with
him, right?
A I don't think that's a fair --
Q But you didn't tell him in this, correct?
A No, I'm answering your question, which was that I was
not straight with him. I think that's a very unfair
characterization. I'm a lawyer and -- I'm answering your
question.
Q Very good, Mr. Jones.
A I'm a lawyer for Novell. I'm apprized of confidential
business plans that they are developing and considering, and
so I'm not at liberty to share with others who are calling
me the various things that we may intend to do in the
future. It would be inappropriate for me to share
information that's given to me in my capacity as a lawyer
for Novell.
Q There was information that you thought was relevant to
2240
your discussion with Mr. McBride that you opted not to tell
him, correct?
A Yeah. I believe I had very appropriate reasons.
Q Now in your discussions with Mr. McBride, he was
explaining to you ways in which Novell could make more
money, correct?
A Yeah, that's right. His idea was either more money or
at least SVRX royalties would not decline as rapidly. One
way or another, he was suggesting there might be some
benefit to you, Novell.
Q Now you spoke to this issue of a side letter that you
received from Mr. Sontag in February 2003. Do you recall
that?
A Yes.
MR. NORMAND: Can we look at Exhibit I-31. If we
could blow up the text of that letter for the jury.
THE COURT: This one has been admitted, so do you
want it shown to the jury?
MR. NORMAND: Yes, Your Honor.
THE COURT: This is the one that has been -- this
one has been admitted?
MR. NORMAND: I believe it was admitted.
MR. ACKER: Yes, the last page of I-31.
THE COURT: That's all you were referring to?
MR. NORMAND: Yes, Your Honor.
2241
BY MR. NORMAND:
Q This is a letter, Mr. Jones, in which Mr. Sontag sought
to clarify the original language of the asset purchase
agreement; is that right?
A The words of the document are clarified.
Q And your understanding is that Mr. Sontag sent you this
letter before he had seen Amendment No. 2, correct?
A You know, I don't know when he saw Amendment 2. I know
that later he said he had not seen it prior to June of 2003.
Q Now by this time you had seen an unsigned copy of
Amendment No. 2, correct?
A You know, I may have. I'm just not certain the date
when I first saw the unsigned copy of Amendment 2. I'm just
really not certain when I first saw it.
Q I thought I heard you tell Mr. Acker that by this point
you had seen an unsigned copy?
A I'm sorry. I thought he was asking me sometime in the
spring of 2003. I hadn't recalled him asking me if prior to
this conversation with Mr. Sontag I had seen it. I don't
believe that's what he asked me.
Q Maybe I misheard. At some point in the next couple of
months, however, you saw an unsigned copy of Amendment No.
2, correct?
A That's true.
Q You thought the language of Amendment No. 2 was
2242
potentially significant, correct?
A Yeah, I would say potentially significant is correct.
Q You thought it was a potentially important document,
correct?
A It was a relevant document, so we would want to
actually see if it was signed or not.
Q You didn't make any personal effort to find the signed
copy; is that right?
A I did in the sense that I was involved in assigning
someone else who had experience finding documents that we
might have difficulty tracking down to go see if he could
find it.
Q You don't know exactly what that person did to try and
find it, do you?
A I don't know all his efforts. I do know his efforts
included looking at our file rooms and pulling boxes out of
the archives.
Q Do you know whether this person made any effort to
contact anyone that had negotiated the asset purchase
agreement?
A I don't know.
Q You made no such effort, correct?
A I did not.
Q Novell's tax department is part of Novell's files,
correct?
2243
A It is. Our legal department files, yeah. The Novell
general files is part of our company. They have files.
Q You were asked about the issue of copyright
registrations. Do you recall that?
A Yes.
Q I believe that Exhibit U-45 was a compilation of Novell
copyright registrations?
A Yes.
Q Novell filed those copyright registrations after SCO
had filed its own set of registrations?
A That's correct.
MR. NORMAND: And could we pull up SCO 755.
THE WITNESS: Do I have that one?
MR. NORMAND: I think it's in front of you on the
screen, Mr. Jones.
Your Honor, I move SCO 755 pursuant to the
stipulation with counsel.
MR. ACKER: I have no objection. I just need to
check to make sure it is what was stipulated to. I don't
doubt counsel's representation.
MR. NORMAND: We'll give Mr. Acker an opportunity
to review it.
THE COURT: You don't have a copy for him to look
at?
MR. NORMAND: I think we do. I know I have one
2244
handy.
MR. ACKER: I don't have an objection subject to
being able to look at this and compare it --
THE COURT: All right. Let's go ahead. I will
admit it, then, subject to Mr. Acker's subsequent review.
(Plaintiff's Exhibit 755 was received into
evidence.)
BY MR. NORMAND:
Q Do you recognize the front page of that document,
Mr. Jones?
A Can it be blown up a bit?
Q I think we can. You recognize it to be a certificate
of registration?
A I recognize that's what it is, yes.
Q You have seen SCO's -- or at least some of SCO's own
copyright registrations before, correct?
A As you know, there are many documents in this case. I
may have.
Q Novell was aware that SCO had filed its copyright
registrations before Novell filed its own, correct?
A Absolutely, we knew.
Q As an attorney, you understand that by filing a
copyright registration it doesn't mean you own the
copyrights, correct?
A Yes. The fact that SCO obtained this didn't mean they
2245
actually were the owners of the copyrights. It's not
indicative of that.
Q Now, Mr. Jones, you understand that one of the issues
in this trial is whether Novell has falsely claimed to own
UNIX and UnixWare copyrights, correct?
A Yes.
Q Your view is that Novell has publicly claimed to own
UNIX copyrights, correct?
A Yes, it is. It's a fact.
Q Your view is also that Novell has publicly claimed to
own UnixWare copyrights, correct?
A That I'm not following you on.
Q Mr. Jones, while counsel looks at this, I wanted to
show you, and read to yourself lines 16 through 20. That is
from the 2008 trial testimony.
A Yes.
Q Having looked at that, do you acknowledge your view
that Novell has claimed to own UnixWare copyrights?
A I'm sorry. You're saying based on that testimony that
was given at trial? Is that the question?
Q The question is whether your testimony at trial was
that you acknowledge that Novell has claimed --
A No. What happened at trial --
Q Let me finish the question, Mr. Jones. The question is
whether you said at trial that you acknowledge that Novell
2246
has claimed to own UnixWare copyrights?
A I'm going to answer that no. I was -- during the
course of the testimony that I was giving, it wasn't clear
to me in the asset purchase agreement at what point in time
certain products had been excluded. And during the back and
forth that I had had with Mr. Normand at the trial, we
worked through the actual agreement and identified at which
version that stopped, and that it wasn't UnixWare. So I
thought that was resolved. When I was stating that at
trial, I was stating it as a question that I thought we had
worked through live during trial.
MR. NORMAND: Your Honor, may I read this question
and answer into the record?
THE COURT: Yes, you may.
BY MR. NORMAND:
Q The question, has Novell ever claimed to own copyrights
to SCO UnixWare. Answer: No. If by SCO UnixWare you mean
any UnixWare code produced after the date of the asset
purchase agreement, no.
So your position, if I understand it, is Novell has not
claimed to own any UnixWare code produced after the date of
the asset purchase agreement; is that correct?
A Again, there is a broader testimony. That is not --
that is a statement that I made as I was working through an
issue with you and ultimately that was not my conclusion.
2247
So I would not regard that as being some sort of a statement
on behalf of Novell, even a statement that I would have made
by the end of the trial, that I would make today.
Q Mr. Jones, you are aware, generally, that in its answer
Novell has acknowledged this claimed ownership of UNIX and
UnixWare copyrights, correct?
A UNIX and UnixWare copyrights?
Q Correct.
A I am not aware of that.
Q Let me ask you if you agree with this statement from
Novell's answer, quote, Novell admits that it has registered
its claim to the UNIX and UnixWare copyrights enumerated in
paragraph 14-G of this answer. Do you agree with that
statement?
A I guess I would say I'm not -- I am not familiar with
the statement, I am not familiar with the exhibits that are
attached, and so it's just hard for me to agree with because
I just don't have -- I'm not sitting here with the agreement
reading it and seeing the exhibits. I'm not sure in that
context how the term UnixWare is being used.
In this questioning, I would just say that what the
asset purchase agreement says in terms of copyright
ownership is what -- we have attempted to be faithful to
that. If there are versions of UnixWare that correspond to
those things that were excluded from the asset purchase
2248
agreement as transferred assets, then that's all I've ever
intended to identify. I think that's all Novell has ever
intended to identify.
If there is some confusion about product naming or
versioning or something about that, I don't know. But I can
tell you all Novell has ever intended to do was to assert
ownership for those things that were excluded from the asset
purchase agreement.
Q You don't have any reason to disbelieve that Novell
made an accurate statement in its answer in this case,
correct?
A No.
Q Wouldn't you agree, Mr. Jones, Novell has publicly
claimed to own copyrights at issue in this trial, correct?
A Yes.
MR. NORMAND: No further questions, Your Honor.
MR. ACKER: Just a few questions, Your Honor.
REDIRECT EXAMINATION
BY MR. ACKER:
Q In your conversations in the fall of 2002 with Mr.
McBride, he said to you he thought Novell could make more
money if Novell participated with SCO in this licensing
campaign?
A Generally.
Q Can you explain as best you can to the jurors what it
2249
was that Mr. McBride was conveying to you?
A All I understood -- all I understood Darl to be saying
was that, you know, if Novell is entitled to royalties on
these SVRX products, SCO is collecting those and sending
those to Novell, and I think the -- I think basically what
he was saying is that some of these SVRX customers might be
moving to Linux. And so if SCO does something that stops
them from moving from SVRX to Linux, then these revenues
will stay up and thereby Novell would get more money.
That's basically what I understood Darl to be saying.
Q So implicit in that statement that Novell could stand
to make more money was that SCO's licensing campaign would
prevent a migration from UNIX to Linux?
A That seemed to be the underlying assumption of what
Darl was telling me.
Q Going back to your first conversation with Mr. McBride
or the first several conversations, what is it that gave you
the impression that Mr. McBride understood that the asset
purchase agreement excluded the UNIX copyrights?
A He directly told me it did. I mean, he pointed me to
the section of the agreement that excluded the copyrights.
MR. ACKER: That's all I have, Your Honor.
MR. NORMAND: Just a few questions.
THE COURT: Go ahead.
//
2250
RECROSS-EXAMINATION
BY MR. NORMAND:
Q Mr. Jones, you understand that the language of the
original asset purchase agreement that you and Mr. McBride
were discussing in 2002 has been amended, correct?
A Correct. There's been at least two amendments to the
agreement.
Q You understand in particular the issue of copyright
addressed in the original APA, that language has been
amended and is not the operative language anymore, correct?
A Yeah. Amendment 2 amended it, and that would be the
operative language, as you put it.
Q Now on this issue of your discussions with Mr. McBride
and Mr. Sontag, when you found an unsigned copy of Amendment
No. 2, you didn't call SCO to tell them you had found an
unsigned copy, did you?
A We did not.
Q You knew it was relevant to the issue you had been
talking about with Mr. McBride and Mr. Sontag, correct?
A Yep.
Q You knew it went to the issue that Chris had sought to
clarify in that side letter, correct?
A It related to it.
Q You didn't tell them about it, correct?
A That's correct.
2251
FURTHER REDIRECT EXAMINATION
BY MR. ACKER:
Q Mr. Jones, are you in the habit of sending unsigned
documents to presidents of other companies?
A Definitely not.
MR. ACKER: Nothing else, Your Honor.
THE COURT: You realize you just took your --
MR. ACKER: I used it up, you're right. Thank
you, Your Honor.
THE COURT: I have to mark you down.
May this witness be excused, counsel?
MR. NORMAND: Yes.
MR. ACKER: Yes, Your Honor.
THE COURT: Mr. Jones, that means you do not need
to worry about being re-called. You may go about your
business. But I do need to caution you to please not
discuss your testimony with any other witness in this case
or in the presence of any other witness or in any way
communicate what the content of your testimony was. Thank
you.
Mr. Acker.
MR. ACKER: I believe it's Mr. Singer's witness.
THE COURT: Mr. Singer.
MR. SINGER: Your Honor, at this time we call Jack
Messman as an adverse witness.
2252
THE COURT: Ladies and gentlemen -- Mr. Acker, I
want you to hear this to make certain I don't misrepresent
anything. Mr. Messman, you may recall you heard previously
a portion of his deposition testimony. Plaintiffs had hoped
to have called him originally, but he was not available at
the time that the plaintiffs originally wished to call him,
and he therefore is appearing today as the final witness for
the plaintiffs in their case in chief.
Go ahead, please, Mr. Acker.
JACK L. MESSMAN,
Having been duly sworn, was examined
and testified as follows:
THE CLERK: If you would please state and spell
your name for the Court.
THE WITNESS: My name is Jack L. Messman.
M-e-s-s-m-a-n.
THE COURT: Mr. Singer, I will remind you that we
have about ten minutes until the normal break time, if you
could try to keep that in mind, please.
MR. SINGER: I will look for an appropriate time.
THE COURT: Thank you.
DIRECT EXAMINATION
BY MR. SINGER:
Q Good morning, Mr. Messman. My name is Stuart Singer.
I am one of the attorneys for The SCO Group. I think you'll
2253
recall that we met at your deposition taken several years
ago in this case.
A Yes. Good to see you again.
Q Now the jury has had an opportunity to hear excerpts of
that deposition earlier in the trial. We're going to
discuss some areas the jury has not yet heard precise
questions on.
I would like to go back to the time of 5-28, the May
28th press release, SCO Exhibit 525. These documents will
appear on the screen before you.
I believe you are familiar with this press release?
A Yes.
Q Which you approved Novell issuing on May 28th, 2003,
correct?
A Yes.
Q And at that time you understood that press release
stated that Novell, not SCO, owned copyrights to the UNIX
and UnixWare operating system, correct?
A Yes.
Q Why was your press release issued on May 28th, that
specific day?
A We didn't pick any particular day. That was the day
that we got the work done necessary to release it.
Q Are you aware Mr. McBride sent a letter to Novell that
was dated May 12th?
2254
A Yes.
Q Did you believe it was important to respond to that
letter?
A Yes.
Q Why did you wait 16 days from May 12th to May 28th?
A Well, we didn't want to react without thinking it
through and understanding the implications of his letter to
us.
Q Well, in terms of thinking it through, had you
thoroughly read the asset purchase agreement before issuing
this press release?
A I had glanced at it in this case, and I had been a part
of the board in 1995 that approved the asset purchase
agreement.
Q You had only glanced at it?
A Because I had read it after that board meeting.
Q Had you been informed prior to issuing the press
release by Mr. LaSala that he had been turning the company
upside down to find a signed copy of what we've referred to
as Amendment No. 2?
A He told me that he had an unsigned copy called
Amendment 2. I said until we found Amendment 2 signed, it
didn't exist legally.
Q So at the time you approved the issuance of this press
release on May 28th, you knew there was an unsigned copy and
2255
Novell hadn't found out whether or not that it had been
executed, correct?
A That's correct.
Q Yet you believed you were ready on May 28th to send out
the press release?
A Yes.
Q Now you were aware, since you were on the board in
1995, that the Wilson Sonsini firm represented Novell in
that transaction, correct?
A Yes.
Q Did you or anyone at your direction make efforts to
contact Wilson Sonsini to see if they had a signed copy of
Amendment No. 2 before you issued this press release?
A I did not, but the people who reported to me were
responsible for doing those sorts of things.
Q Did you direct them to do that?
A No.
Q Did you know if they did that?
A I don't know if they did that.
Q You weren't informed before May 28th when you sent out
this press release that there was such a signed version of
Amendment No. 2?
A That's correct.
Q Similarly, you never asked SCO about whether they had a
signed copy of the second amendment? You never sent them
2256
your unsigned copy and said before we come out with a press
release saying we own the UNIX copyrights, can you tell us
if you happen to have a signed version of this? That didn't
happen.
A That did not happen. I did not do that.
Q You didn't direct anyone else to do that?
A That's correct.
Q You could have sent this letter privately to SCO before
you put it out as a press release, correct?
A I could have.
Q You didn't do that either?
A I did not.
Q Now you knew the press release would hurt SCO in saying
that they didn't own these UNIX copyrights, right?
A I didn't know it would hurt them. I was putting out
our side of the story.
Q You didn't think that putting out a press release
saying that the core intellectual property, the copyrights
to the UNIX operating system weren't owned by the company
that is running that business would hurt them?
A I didn't know. I wasn't following the stock market. I
only knew we owned the copyrights and the patents, and I was
letting the outside world know that we owned the copyrights
and the patents.
Q My question is simple, did you believe it would hurt
2257
them? Yes or no.
A I didn't know.
Q You didn't know.
Now you wanted to get the press release as broadly as
possible; is that correct?
A Yes.
Q And in a statement about copyright ownership -- let me
be more precise. Did you believe that asserting that you
owned these copyrights would hurt SCO's SCOsource licensing
program?
A I didn't know because it was a new licensing program.
Q You didn't have the view that the reason you were
putting this out was to basically convince people to not get
a SCOsource license?
A I didn't know what SCOsource licensing was all about at
that point. It was new.
Q It was announced in January of 2003; was it not?
A Yes, it was.
Q And wasn't that one of the reasons that you went public
with this press release in May of 2003 is the SCOsource
licensing program?
A It was not the reason.
Q That was not reason?
A No.
Q It had nothing to do with it?
2258
A It wasn't the reason why we did it.
Q Now in your May 28th letter you asserted that SCO had
not proven to your satisfaction its case for a copyright
infringement, correct?
A They hadn't proved anything to us. We believed there
was no UNIX in Linux.
Q Now you could have made that point without also saying
that we own the UNIX copyrights, correct?
A I could have.
Q Now you understood a claim of ownership to UNIX
copyrights coming from the company, Novell, that had then
sold the business to Santa Cruz would have special force in
the outside world, correct?
A We owned the copyrights and we sold the rights to those
copyrights to Santa Cruz Operation.
Q Mr. Messman, my question must have been unclear because
that's not what I asked. I asked did you understand that a
statement coming from the seller of the business, Novell,
saying we still own the copyrights would have special force
and effect in the outside world?
A I didn't know what the effect would be. I was trying
to make sure the customers knew what the facts were.
Q So you didn't think that it would have more effect on
listeners who heard Novell, the former owner of the
business, saying we still own the copyrights than some other
2259
third party making that claim?
A Well, we were the only ones that could make that
statement because we knew we owned the copyrights and the
patents.
Q Now you understand the difference between getting out
your side of the story and making a false statement?
A Sure.
Q Now what would have been your reaction if AT&T, after
you had bought the UNIX business from them, had said we
still own the UNIX copyrights?
A That's a hypothetical.
Q Yes, it is.
A I don't think I would have reacted to it.
Q You don't think it would have mattered to you?
A No. We had our documents and I would have probably had
Joe LaSala, our general counsel, contact them.
Q Do you think, sir, that it would have been okay if AT&T
said we still own the copyrights but we'll put in your side
of the story, Mr. LaSala's statement perhaps out on a Web
site at the same time so people can decide what they think?
That would have been perfectly okay with you?
A I don't know what they would have done.
Q My question is would that have been okay with you?
A Well, it wasn't the facts. We owned the copyrights and
the patents. We bought them from them in 19 -- whenever it
2260
was we bought USL, UNIX System Laboratories, so they would
not have had the right to say that.
Q They wouldn't have had the right to say it because it
wouldn't have been true, correct?
A It wouldn't have been true.
Q Do you think that your interest in supporting Linux
would justify Novell telling a 2003 and 2004 falsehood?
A I don't think we did tell a falsehood.
Q That wasn't my question.
A I'm sorry. Would you repeat it?
Q Yes, sir.
Do you think your interest in supporting Linux
justifies Novell telling a falsehood in 2003 or 2004?
A No, I don't.
Q Now after the May 28th press release, there was a June
6th press release. That's SCO Exhibit 97. Would you take a
look at that, please.
Do you recognize this as a press release which you
approved, eight days later?
A Yes.
Q And do you recognize that you stated in this press
release that Amendment No. 2 appears to supports SCO's claim
that ownership of certain copyrights for UNIX did transfer
to SCO in 1996, correct?
A I see that, yes, sir.
2261
Q Now your general counsel, Mr. LaSala, worked with you
on this press release, correct?
A It was his press release. I worked with him on it.
Q Fair enough.
You would expect your general counsel not to approve a
press release involving the interpretation of a legal
document unless he was comfortable that he had it right,
correct?
A I think he's saying that he hadn't done all the work
yet and therefore on the surface it appeared --
Q Would you answer my question, sir?
A Sure. Would you repeat it?
Q Yes.
My question was would you expect your general counsel
to write a press release interpreting a legal document and
to do so in a way that was correct?
A Yes, I would.
Q Now were you aware that Mr. LaSala had been looking at
an unsigned version of Amendment No. 2 for several weeks
before this press release came out and even before the May
28th press release came out?
A I was aware he had an unsigned copy.
Q So there was plenty opportunity over a period of weeks
to try to interpret the document and decide what it meant,
correct?
2262
A I don't know whether he had -- how much time he had. I
can't remember the amount of time it was in his possession.
And as far as I was concerned, when he brought it up with
me, it wasn't part of the document until I saw a signed
copy.
Q Now the statement that Novell says the amendment
appears to support SCO's claims that ownership of certain
copyrights to UNIX did transfer to SCO in 1996, you approved
that at the time this was issued, correct?
A Yes.
Q And would you agree that after June 6th Novell engaged
in the process of trying to back away from that statement?
A I don't think we were trying to back away from it. We
were clarifying what appears in it.
Q Well, are you aware that on August 4th, 2003 there was
a letter from Mr. LaSala to SCO that was different than what
this said?
A I recall that there was a letter that said that we had
done our investigation work and we now believe there is no
merit to your claims that the copyrights and the patents
transferred.
Q Isn't it true that between the time of June 6th when
this was issued and August 4th when that letter was sent
nothing had changed, there had been no new information that
had come to light?
2263
A I don't know what had come to light during that period
of time.
Q Do you recall being asked about that in your
deposition?
A Being asked about what, sir?
Q Whether anything different had come to light between
June 6th, 2003 and the August 4, 2003 letter?
A I don't recall what I said at that point in time.
Q Are you aware of anything that occurred differently
between June the 6th and August the 4th?
A No, I can't recall. There might have been something
that occurred, but I don't recall it.
Q Now did you authorize Novell to go public with the
August 4th letter if they had wanted to do so?
A Could you refresh my memory of what the August 4th
letter is?
Q The August 4th letter, Mr. LaSala's letter to Mr.
McBride or Mr. Tibbitts which said that we believe ownership
of the UNIX copyrights still rests with Novell. That was
not published, correct?
A Correct.
MR. SINGER: I think this might be a good time for
us to have a break, Your Honor. We will move on to other
subjects.
THE COURT: All right. We'll take a 15-minute
2264
break.
(Jury excused)
THE COURT: Mr. Brennan, what is your intent as
far as a Rule 50 motion?
MR. BRENNAN: We intend to file one.
In terms of timing, Your Honor?
THE COURT: Timing.
MR. BRENNAN: If I could confer with Mr. Jacobs, I
can give you a prompt answer.
Your Honor, rather than me be a mouthpiece, I
think Mr. Jacobs --
THE COURT: Mr. Jacobs, that's a good idea.
MR. JACOBS: Thank you, Your Honor.
We obviously intend to file a Rule 50 motion
before the case goes to the jury and, if necessary, after
the case goes to the jury. In terms of the close of
plaintiff's case a Rule 50 motion, we're aiming for this
evening, Your Honor.
THE COURT: All right.
MR. SINGER: Well, we can only imagine what they
plan to file.
THE COURT: Yes, you probably can.
MR. BRENNAN: I can confirm it will be
interesting.
THE COURT: All right. That helps the Court a
2265
little bit. Normally, at the end of the plaintiff's last
witness, I will ask do you now rest, and that then will
trigger you saying, Your Honor we want to reserve the right,
et cetera, et cetera. I'm going to assume that has now been
done so we don't have to interrupt as soon as we're through
with Mr. Messman. Is that agreeable, counsel?
MR. SINGER: That's fine with us.
MR. JACOBS: Thank you, Your Honor.
THE COURT: Thank you.
(Recess)
***** Part 2 *****
2266
(Recess)
THE COURT: Ready, counsel?
MR. SINGER: There was one item we wanted to bring
up before the jury returns and before we formally rest our
case, and that relates to the introduction of just these two
figures from the 10-K that relate to the net worth of
Novell, which come in for punitive damages.
MR. NORMAND: I misunderstood Your Honor's
directive, after speaking with my colleagues, and I thought
your point was when you said let's see how if goes, that I
could see if Mr. Jones's direct would allow me to use the
document with him. Apparently that was not how the rest of
the members of my team interpreted what Your Honor said, so
I didn't make an effort to use it with him because I thought
the scope of his direct --
MR. BRENNAN: Your Honor, on that subject I don't
think there was a misunderstanding and there was no attempt
made to use it. I think they have run out of the right now
to try to do that with Mr. Jones.
MR. NORMAND: I just actually saw Mr. Jones in the
hall, so if we are going to get to the point of the
silliness of calling Mr. Jones back or asking Mr. Russell to
stand up to answer four or five questions, we can do that,
but I don't know on what grounds Novell is going to dispute
the substance of this 10-K.
2267
THE COURT: I would agree that perhaps you
misunderstood, but the Court's intention was that you be
allowed to make the offer and a lay foundation, then there
could have been an objection, but if you misunderstood it is
the Court's problem and I want you to be able to solve it.
So we can either have Mr. Jones stay and bring him
back, or if you want to have another witness called that can
accomplish the same thing, whatever is most efficient.
MR. BRENNAN: Your Honor, just as were considering
the point, there is an issue regarding Mr. Jones's
examination by Mr. Normand. The Court may recall that
during Mr. Normand's cross-examination of Mr. Jones he made
an express, explicit reference to previous trial testimony,
not deposition testimony, trial testimony in the context of
asking Mr. Jones about copyright ownership issues.
Novell believes that that has left the impression
in the minds of the jury that there was a previous trial
related to copyright ownership issues, and given the
limitations we have been faced with explaining the outcome
of these various matters, perhaps a suggestion in the jury's
mind that that issue in a previous trial was decided
differently than now in this proceeding.
This, again, is a case where in our view
plaintiff's counsel through its own questioning has opened
the door and has created an issue of confusion. What we
2268
would ask the Court to do to resolve that point of
confusion, is to instruct the jury that there was in fact a
previous trial between Novell and SCO, and not on the issue
of ownership but others, that a judgment was entered in
Novell's favor and that that wasn't reversed by the Tenth
Circuit. Otherwise, the jury is left to wonder about all of
this by virtue of the way SCO's attorneys conducted the
examination.
I would just note as well, Your Honor, that it is
my understanding that there had been a previous agreement
that if there was to be any reference to previous testimony,
that it would be phrased in that terminology and not trial
testimony. That agreement was not observed.
THE COURT: Go ahead, Mr. Normand.
MR. NORMAND: Well, I can speak to the issue or
Your Honor can speak to it first.
THE COURT: The Court's recollection is that the
questions asked about prior testimony, and it was not prior
trial testimony, and it was Mr. Jones who raised the issue
about it being trial testimony. That was concerning to the
Court, but he then went on with a broad explanation about
how this was at the end of the trial and in trying to work
through something at the trial and so on and so forth.
I don't think it can be laid at the feet of Mr.
Normand, when he asked a question about in your prior
2269
testimony is this not what you said?
MR. BRENNAN: Would the Court view it differently
if, in fact, the question that referenced trial was in the
question rather than the answer?
MR. NORMAND: Your Honor, my recollection is as
yours, that Mr. Jones raised it. I can't say that I
remember chapter and verse how the question was phrased.
Mr. Acker asked me where the testimony came from and I told
him it was from trial, and Mr. Jones may have heard me speak
with Mr. Acker.
I took care not to ask Mr. Jones any substantive
questions, after his long answer and explanation about the
trial, I didn't ask him anything about the trial. I was
trying to stay away from that issue. One, I don't think the
jury picked up on this issue that Mr. Brennan has raised.
Two, the solution proposed is grossly overbroad. At most,
you should tell the jury there was a prior trial and that it
was on different issues than are at issues here, but I don't
think the jury is drawing a big distinction between the
trial and the deposition testimony.
MR. BRENNAN: Your Honor, it seems to me that
speculation by SCO's counsel about what the jury is drawing
or not is always drawn in their favor. SCO always puts it
in the position of, well, this is what I think the jury
would have done or wouldn't have done and it is favorable to
2270
them.
I sit on the side of a defendant who is being
accused of slandering title and damages have been sought of
$250 million. I believe that we have every right and
entitlement to make it clear to the jury what really has
happened, when SCO's attorneys have invited the problem.
THE COURT: I am not sure that they did. That is
my problem. Even if he had simply made reference to trial
testimony, I don't believe that by itself would have raised
the issue. I believe it was Mr. Jones's explanation in
great detail about what happened at the trial that may have
raised any type of issue at all.
I think in fairness and to avoid the issue, the
Court will instruct the jury when they return that there was
reference in Mr. Jones's testimony to a prior trial, but
understand that it is not the same trial involving the
issues in this case and just leave it at that.
MR. BRENNAN: Thank you, Your Honor.
Back to the question of how we ought to proceed in
light of the misunderstanding regarding how to seek to
introduce information from Mr. Jones, may I confer with my
colleagues for one minute?
THE COURT: Go ahead.
(Time lapse)
MR. BRENNAN: Your Honor, our suggestion in light
2271
of the apparent misunderstanding, is that the parties
stipulate to the admission of -- I believe it is form 8-K.
Is that correct? 10-K.
MR. NORMAND: 10-K.
MR. BRENNAN: That it simply be admitted into
evidence without further discussion or explanation.
MR. NORMAND: If that has built into it that it
can be addressed at closing, then we would --
THE COURT: If it is an admitted exhibit, then it
certainly can be referred to at closing.
MR. BRENNAN: With that understanding, we would
just stipulate to the admission of the 10-K.
THE COURT: What is it marked as?
MR. NORMAND: It is marked as SCO Exhibit 552,
Your Honor.
MR. SINGER: It will be redacted to just reflect
the information on I think the first page with respect to
the market capitalization of Novell, and on page 26 with
respect to the stockholder equity of Novell.
MR. BRENNAN: Our understanding, of course, is
that the admission of that redacted 10-K would be subject to
our reservation of all rights and arguments relative to the
entitlement to punitive damages and otherwise, Your Honor.
THE COURT: Certainly.
Exhibit 552 as redacted, and in the form and way
2272
that Mr. Normand just represented it would be redacted, will
be admitted.
(Plaintiff's Exhibit 552 was
received into evidence.)
MR. BRENNAN: Thank you, Your Honor.
THE COURT: Ms. Malley, please bring the jury in.
(WHEREUPON, the jury enters the proceedings.)
THE COURT: Ladies and gentlemen, before we
continue with the examination of Mr. Messman, I do need to
instruct you on one thing. During the examination of Mr.
Jones there was a reference to a prior trial. You may
remember that there was an exchange between Mr. Normand and
Mr. Jones about Mr. Jones's prior testimony in another
trial.
That trial did not have anything to with the
issues that you are going to be asked to address in this
trial, so you should not pay any attention unduly to the
fact that there was a prior trial, nor draw any conclusions
about what that trial was about.
Go ahead, Mr. Singer.
MR. SINGER: Thank you, Your Honor.
BY MR. SINGER
Q. Mr. Messman, before the break I was asking you about
the August 4, 2003 letter.
Do you recall that question?
2273
A. Yes.
Q. I was asking you if there was any new information which
came to light between the June 6 press release and the
August 4th letter.
Do you recall that?
A. I recall the question.
Q. Was there any such additional information that came to
light between June 6 and August 4?
A. I don't recall.
Q. Would it be fair to say that you're not aware of any
such new information?
A. It could be that I wasn't aware of it, but I don't
recall that I was not aware of it.
Q. Well, is it fair to say that you don't think there were
any new materials?
A. If I thought there were new materials, I would have
said I recalled them.
Q. As far as you know, there wasn't anything different
that Novell had on August 4th that it didn't on June the
6th?
A. I don't recall.
Q. And yet the company reached a completely different
position in its August 4th letter than in the one on June
the 6th, correct?
MR. ACKER: Your Honor, that is argumentative and
2274
it misstates his testimony.
THE COURT: Sustained.
MR. SINGER: I will rephrase the question.
BY MR. SINGER
Q. Did you after August the 4th authorize Novell to file
copyright registrations for UNIX copyrights in September and
October of 2003?
A. Yes.
Q. Were you aware that those copyrights covered the same
versions of UNIX that AT&T had obtained copyright
registrations on and which were transferred -- the copyright
registrations were left with Santa Cruz back in 1995?
A. I was not aware that they were left with Santa Cruz. I
was under the impression that they were still registered in
AT&T's name.
Q. Did you have an understanding that those were the same
copyrights which were being referred to in your June the 6th
letter?
A. Yes, they were. It was my opinion and I was of the
opinion that they were the same.
Q. Did you have an understanding in September and October
of 2003 that SCO had at that time copyright registrations in
its name for those copyrights?
A. I was informed that SCO had filed registrations on top
of the AT&T registrations.
2275
Q. Now, in October and November -- September, October and
November you didn't go public with respect to any of those
registrations, correct?
A. They were a matter of public record. If anybody wanted
to go get them they are at the U.S. patent office.
Q. But you didn't issue a press release about them,
correct?
A. Correct.
Q. You didn't publish your August 4th letter either, did
you?
A. I would have to see the letter to remember.
Q. It is Exhibit 105.
This letter was not published as a press release,
correct?
MR. ACKER: Objection, vague as to time.
BY MR. SINGER
Q. At the time, in August of 2003.
A. I don't think it was.
Q. Now, did you approve a press release that was issued on
December 22nd, 2003, which is SCO Exhibit 517?
A. I'm familiar with that press release. I was involved
with all press releases, so I'm sure I approved it.
Q. And you understood that this press release stated that
Novell believes that it owns the copyrights in UNIX and has
applied for and received copyright registrations pertaining
2276
to UNIX consistent with that position; is that correct?
A. Yes.
Q. Now, why was December 22nd, 2003 chosen as the date to
inform the public about copyright registrations that you had
obtained in August or September or October?
A. I don't know.
Q. Well, I would like to show you a demonstrative exhibit,
which is a calendar of 2003. I would like you to assume for
the moment that we have accurately indicated the dates of
SCO's earnings releases for the calendar year 2003 as having
been February 26, May 28th, August 14th and December 22nd.
Mr. Messman, as former chairman of a public company you
understand that the earnings release dates are important
dates for a public company, correct?
A. Yes.
Q. Now, May 28th, we have already covered was the date
that Novell issued its first public claimed ownership of the
UNIX copyrights, correct?
A. That is correct.
Q. Is it your understanding that that was a coincidence,
that that also happened to be the date that SCO announced
its earnings for the preceding quarter?
A. It was coincidence.
Q. December 22nd, 2003, when SCO issued its earnings for
the year to date period before that, also happened to be the
2277
date that you issued a press release pertaining to the
copyright registrations and reasserting ownership of UNIX
copyrights, correct?
A. That is the date we released this press release,
correct.
Q. Do you have an understanding as to why that precise
date was chosen?
A. Mr. LaSala came to me and asked me about putting the
information that the public didn't have on our Web site and
I approved doing it. I did not approve the date. I assumed
he was going to do it as soon as he could.
Q. So you don't have any understanding of why that
specific date was chosen?
A. I do not.
Q. Do you believe it is just a coincidence that that also
was the date that SCO's earnings were released?
A. I think it is coincidence.
Q. Now, there are only two public statements by Novell in
2003 asserting copyright ownership, correct, the one in May
and the one in December? May 28th and December 22nd,
correct?
A. There were a number of letters. I don't know which
ones were public, but there were a number of letters between
us and SCO where we asserted the ownership of copyrights and
patents.
2278
Q. I think my question -- maybe I didn't phrase it
clearly -- but was about public assertions like in press
releases. Those were only on May 28 and December 22nd,
correct?
A. I would have to see all of the press releases to answer
that question. I can't recall.
Q. Are you aware of any others?
A. Not off the top of my head.
Q. So assuming that those are the only two public
statements by Novell in calendar year 2003 asserting
copyright ownership, and if my assumption is right that
those are the dates in which you have SCO earnings releases,
both of those fell on dates, two of the four dates that SCO
released earnings for the whole calender year and that was a
coincidence, correct?
A. Assuming that those were the only two announcements
that we made, that is a coincidence.
Q. Mr. Messman, were you following SCO's stock at all in
2003?
A. I had a lot of things to do and I was not following
SCO's stock.
Q. In fact, weren't you aware of the fact that in May of
2003 SCO's stock was going up and down?
A. I knew that the volume of press releases from SCO was
going up and down. I wasn't following their stock.
2279
Q. I would like to ask you to take a look at what is clip
eight of your deposition.
MR. SINGER: Mr. Calvin --
MR. ACKER: Can I have the page and line?
MR. SINGER: This is page 56, line 20, to 57, line
3.
Mr. Calvin, would you play that clip.
(WHEREUPON, the following deposition clip was
played.)
Q. Were you subsequently aware that SCO's stock price
declined 30 percent in the immediate aftermath of your press
release?
A. SCO's stock price was going up and down during that
period of time based on what was happening and what Darl was
saying in the marketplace. I can't recall what it did on
any given day when we were making these.
BY MR. SINGER
Q. Do you agree that that was your testimony, Mr. Messman?
A. Yes.
Q. You agree that you were aware that SCO's stock price
was going up and down during that period of time in 2003?
A. I was aware, but I was not following it.
Q. In January of 2004 did you approve the announcement of
a Linux indemnification program?
A. Yes.
2280
Q. I would like you to look at SCO Exhibit 756.
Was this a press release on January 13, 2004 announcing
that indemnification program?
A. Yes.
Q. And in connection with this release did you state in
the statement that says Novell's unique --
MR. SINGER: Let me first move Exhibit 756 into
evidence.
MR. ACKER: It is already in evidence.
BY MR. SINGER
Q. If we turn to Novell's unique legal rights, and we go
down a little further on the page --
MR. SINGER: Mr. Calvin, expand that.
BY MR. SINGER
Q. You stated at that time that Novell had rights which
include, and if we turn to the next page, the third point
was as previously confirmed by Novell, copyright
registrations on UNIX SVRX releases consistent with Novell's
position that it retained ownership of these copyrights.
You approved that?
A. Yes.
Q. Now, are you aware, Mr. Messman, that Chris Stone, who
at the time was the number two man in the company, your vice
chairman, made a statement at an open source development
conference in March 2004 regarding the ownership of UNIX?
2281
A. I am aware that Chris made several presentations to
several trade groups, but I am not aware of the particular
one you're talking about.
Q. Are you aware of a conference where Mr. Stone stood up
and said publicly that we still own UNIX, referring to
Novell still owning UNIX?
A. Yes. I mean, I think that is true so it wouldn't
bother me that he said that.
Q. You think it is a true statement that Novell still owns
UNIX?
A. Yes.
Q. How long after that statement did you wait before
asking Mr. Stone to leave Novell?
A. We sent Mr. Stone away to Harvard for I think it was a
nine to 12 week program. He was gone for a period of time.
In may have been May or June before he left the company.
Q. Was Mr. Stone asked to leave Novell?
A. No.
Q. Thank you.
THE COURT: Mr. Acker.
MR. ACKER: Just a very few questions, Your Honor.
CROSS EXAMINATION
BY MR. ACKER
Q. Mr. Messman, take a step back a little bit and tell the
ladies and gentlemen of the jury about your undergraduate
2282
and graduate degrees.
A. I have a degree in chemical engineering from the
University of Delaware in 1962, and a degree in business
from the Harvard Business School in 1968.
Q. Were you at Novell in the beginning of the company?
A. Yes.
Q. Can you explain that for the jury, please.
A. Well, I had been running a consumer products company
through most of the seventies and I joined Safeguard
Scientifics -- I believe it was in the 1980s, late '80, and
Safeguard had made a significant investment in a company
called Novell Data Systems, Inc. It was in trouble. I was
asked to come out to Provo and figure out what to do. I did
that.
After an analysis that took maybe three or four weeks,
I called back to the head office and said I think we ought
to shut it down. They instructed me to do that. It was not
just as if we could just turn the key overnight and shut the
thing down. We decided it would be better if we did an
orderly liquidation, because we had lots of spare parts that
could be used by other manufacturers of the equipment. We
started to try to sell the parts to various people in the
industry.
In the course of terminating various people I ran
across three young fellows from Brigham Young University who
2283
were programmers on contract to Novell.
To make a long story short, they had a product that I
recognized the potential of. I decided, and I convinced
Safeguard, who wanted to get out of the business, I
convinced them to recapitalize the company, and we changed
the name from Novell Data Systems to Novell, Inc. I was the
C.E.O. My job was to get this business off the ground with
a software strategy, and ultimately to hire my replacement.
I hired Ray Norda as my replacement, and Mr. Norda gets all
the credit for having built the company to what it is today.
Q. What was the product that the three young programmers
from BYU had?
A. It was NetWare. It was a piece of software that
allowed computers to interact with one another at the same
time. It was something that hadn't been done at that point
in time.
Q. After Mr. Yarrow became the C.E.O., did you remain on
the Novell board?
A. Mr. Norda.
Q. I'm sorry. After Mr. Norda became C.E.O., did you
remain on the Novell board?
A. I went off the board for I think about a year, because
I left Safeguard and went to work in the cable business in
New York City. When they got ready to go public I rejoined
the board. Other than a period of maybe a year, I have been
2284
associated with Novell since 1980.
Q. Were you on the board in September of 1995?
A. I was.
Q. Let me show you what we have admitted into evidence as
Z-3.
Do you recognize that as the minutes of the Novell
board of directors meeting on Monday, September 18, 1995?
A. I do.
Q. Were you present for that telephonic board meeting?
A. I was.
Q. Was there a discussion at that board meeting regarding
the asset purchase agreement?
A. Yes.
Q. Is this the meeting at which that asset purchase
agreement was approved?
A. Yes.
Q. Was there a discussion at the meeting about whether
copyrights would be included or excluded from that sale?
A. It was -- I don't know whether to say mandatory or not,
but it was important that they were not included, because we
felt SCO was a company that was a little bit of a fledgling
company, and we were worried that this revenue stream that
we were getting from the UNIX licenses would be at risk, and
we insisted that we keep the copyrights and patents so that
if anything happened to SCO that we would be able to get
2285
full control of the revenue stream.
Q. Was the fact that the copyrights were to be excluded
from the deal, was that discussed at the board meeting on
September the 18th, 1995?
A. Absolutely. That was the key part of the deal that
convinced the board to do that deal.
Q. Let me fast forward now and ask you a few questions
about some documents and dates.
On May 28, 2003 Novell issued a press release claiming
ownership of the UNIX copyrights.
A. Yes.
Q. Tell the ladies and gentlemen of the jury why Novell
did that.
A. Well, I think the marketplace both for UNIX and for
Linux was being bombarded by accusations that Mr. McBride
was making that were in our opinion untrue. He was claiming
that it was UNIX and Linux -- he was claiming that all Linux
users, end users, not just the companies but the end users,
probably should have to pay a license to use Linux. It is
an open source community which develops Linux, which is all
about not paying any licenses. It is free software.
This was a very confusing time and a tumultuous time.
UNIX customers and UNIX licensees were calling to ask what
is going on with my license? Linux customers were delaying
their orders until they figured out what was going on with
2286
regard to having to pay a royalty.
Q. Was that press release put out to protect Novell's
business interests or to harm SCO?
A. We did it to protect Novell's interests and to protect
our shareholders and to protect the revenue stream.
Q. How many conversations have you had with Mr. McBride in
your life?
A. I have had one telephone conversation with him and one
meeting with him.
Q. The telephone conversation, was that on the evening of
June the 5th?
A. It was.
Q. Can you describe that conversation for the jury,
please.
A. Well, it was late at night because everybody in my
office had gone home. I was still there. The call came in
and, therefore, I answered it. I normally don't answer the
calls that come in directly. I answered it and it was Mr.
McBride. He says, have you got it? I said, what are you
talking about? He said, well, amendment two. I said, no, I
don't have amendment two.
He made a few comments, and I don't recall all of the
conversation, and we hung up. Shortly after that a fax copy
came and somebody in our office that was still around
brought it into my office and showed it to me. Mr. McBride
2287
called again and said, now do you have it? I said obviously
I did have it. He then said it took him three to four
months to find it himself. I said we hadn't had it until
you sent it. He asked me what did I think of it. I said,
well, I have not had a chance to review it and contemplate
what it means.
He said, have you talked to I.B.M. about this? I said
I wouldn't have talked to I.B.M. if I just got it, but I
talk to I.B.M. about a lot of things. He was quite agitated
and excited. I didn't know him well enough to say whether
he was mad, but we hung up on the phone call and I proceeded
to then talk to my general counsel the next morning.
Q. At any point during that conversation did you say words
that in any manner conveyed to Mr. McBride that you believed
that SCO owned the UNIX copyrights?
A. Absolutely not.
Q. Any doubt in your mind about that?
A. None.
Q. Another press release was put out on December the 22nd
of 2003.
Can you tell the ladies and gentlemen of the jury why
Novell did that?
A. Well, again, it was a one-sided conversation that Mr.
McBride was having with the marketplace and at trade shows
and at press conferences and in press releases and things of
2288
that nature. We thought he was wrong.
The Linux community, which is a very open community,
wanted to know what was going on. We felt that the best way
to tell our side of the story was not to interpret the
documents and make press releases, that we ought to just put
the information out on our Web site so that everybody could
see it and make their own judgments.
Q. One final topic.
At some point in the fall of 2003 Novell began the
acquisition of a Linux company SUSE Linux?
A. Yes.
Q. Can you tell the ladies and gentlemen of the jury why
it was that Novell sought to acquire SUSE Linux?
A. Well, I think that there was a great deal of concern
about what was going to happen to Linux if Mr. McBride's
accusations were true. We were looking for a way to solve
that problem, and one of the ways was for us to acquire a
Linux operating system company.
I think it was late September or early October when we
were made aware that SUSE Linux was available for sale. We
got the brochures from the investment bankers and we read
them, and we thought that there was a possibility that we
would be interested, so we started a process of making bids.
We won the bid, which allowed us to then negotiate
exclusively with the sellers. The sellers were venture
2289
capitalists, not the company itself. Venture capitalists
owned the company and they were interested in maximizing the
price that they got.
We did our due diligence and then closed the deal I
think in the first or second week of January of 2004.
Q. In connection with that deal, did I.B.M. subsequently
purchase $50 million worth of Novell stock?
A. They did, at my suggestion. I was worried that we were
paying $210 million for a company that had very little
revenues but had great technology. I was trying to figure
out how to get comfortable with that risk. We decided that
we would call some of the bigger players in the industry to
figure out whether they would join us in some way in
supporting us.
I called Bill Zeigler, who was the executive at I.B.M.
that I was dealing with on a regular basis, and I asked him
if he would be willing to give us some comfort that we were
doing the right thing. He asked me, well, what form did I
think the comfort would come in? I didn't think we wanted
him to buy a piece of the SUSE Linux deal, because then we
wouldn't own 100 percent, so I suggest an investment in
Novell.
So he said, well, how much do you think we ought to
invest? Well, it has to be something that the marketplace
would think would be significant. He said, well, what is
2290
that number? I said, I think it is $50 million.
He said he would consider it. I think it was a week or
two later, and I can't recall exactly the time frame, but he
came back and said they would do it. We did not close that
transaction until after -- I think it was in March or early
April, so the SUSE Linux acquisition closed in January, and
they made their investment in late March or early April.
Q. 2004?
A. 2004.
Q. Was there any relationship at all to the events
involving SCO in 2002 and 2003 and I.B.M.'s investment in
Novell regarding SUSE Linux?
A. There is no connection.
MR. ACKER: That's all that I have, Your Honor.
THE COURT: Mr. Singer.
REDIRECT EXAMINATION
BY MR. SINGER
Q. Mr. Messman, I would like you to take a look at Exhibit
754.
Do you recognize this to be a memorandum that
Mr. Bradford sent to you and other members of the Novell
board of directors on September 15, 1995, three days before
the board meeting that you have testified about?
A. I don't remember it, but I'm sure that I got it if it
was sent to the board of directors. I was a director. I am
2291
reading it now.
Q. Why don't you take a look at it. You can see on the
first page that it says there is certain information
pertaining to SCO which is being included, including item E,
a term sheet for the proposed transaction.
Do you see that?
A. Yes, I do.
Q. Would you turn to the term sheet.
MR. SINGER: Mr. Calvin, would you blow up the
first two items, what Novell transfers and what Novell
retains.
BY MR. SINGER
Q. The term sheet that you received right before the board
meeting from the general counsel, Mr. Bradford, said that
Novell transfers to SCO UNIX technology assets and UnixWare
technology assets, correct?
A. I see that.
Q. And it says Novell retains all patents, that it will
have a license back to UNIX and UnixWare for internal use
and resale in bundled products, and Tuxedo and other
miscellaneous unrelated technology.
Do you see that?
A. I see that.
Q. Do you see anywhere on that list of what Novell retains
that word copyrights?
2292
A. Not on this list.
Q. This was the term sheet that accompanied a memorandum
sent by the general counsel to the board of directors in
advance of the meeting, correct?
A. Yes, sir.
Q. Now, let's take a look at the board minutes which are
Exhibit Z-3.
MR. SINGER: Mr. Calvin, can you expand the first
page of the minutes where it says proposed sale of UnixWare
business and equity investment in SCO?
BY MR. SINGER
Q. Do you understand that this summarizes the discussion
of what was being discussed by the board in connection with
that transaction?
A. Yes.
Q. Do you see where it says Mr. Bradford and
Mr. Frankenberg first confirmed that the directors had
received the materials on several transactions and then
there is a summary of the discussion. That discussion then
continues, and I would like you to read these three
paragraphs, and I am going to ask you to read the first
paragraph on the next page which is a continuation of this.
So you have my question in mind, my question is going
to be, do you see any reference in this summary of the
discussion at the board meeting to copyrights?
2293
A. Not in the first three paragraphs.
Q. Look and see if there is any reference to that in the
fourth paragraph.
A. No, there is no reference there.
Q. The only reference is in the text of the resolution,
which then follows.
MR. SINGER: Mr. Calvin, blow up where it says
resolved.
BY MR. SINGER
Q. After the resolution there is a summary which says that
Novell will transfer to SCO its UNIX and UnixWare technology
assets --
A. Where are you, Mr. Singer?
Q. This is on the resolution. It is highlighted on the
screen.
Do you see that?
A. Yes.
Q. The only reference to copyrights is then in the third
paragraph under the word resolved, where it says Novell will
retain all of its patents, copyrights and trademarks,
correct?
A. Yes.
Q. It also goes on to say that there would be a worldwide
license back to UNIX and UnixWare for internal use and
resale in bundled products, correct?
2294
A. Yes.
Q. And that would be a license back of the technology
being sold, correct?
A. Of the technology being sold, right.
Q. One of the copyrights that was not being transferred
was NetWare copyrights, correct?
A. Yes.
Q. Now, it is your testimony that you have a specific
recollection of the copyright issue being discussed even
though it is not captured in the discussion summary in the
board of director minutes, correct?
A. Yes. It is the prerogative of boards to make decisions
based on discussions that take place.
Q. Even though it was not mentioned as something being
retained in a term sheet that was provided to the board in
advance of this meeting?
A. Yes. Terms change as the board discusses them.
Q. Is it your testimony that the transaction changed from
Friday the 15th of September to when the board met to
consider this on the 18th of September?
A. All I can tell you is that we were very concerned about
any transactions with Santa Cruz Operation, which I have
characterized as a fledgling corporation, and we were
worried that we were turning over this very valuable stream
of royalties to a company that may not make it, so we
2295
retained the copyrights and patents.
Q. You have a distinct recollection in now 2010, that at
this board meeting that was 15 years ago, that the board was
told the copyrights were not being sold, correct?
A. It was a point of discussion at the board meeting and
that is how we resolved it as this resolution shows.
Q. Do you recall anything else that Mr. Bradford said with
respect to the assets being told and not sold, leaving aside
what you have just seen in the minutes, do you recall
anything else except the copyrights and patents not being
sold?
A. Well, that was the most important from my point of view
and I remember that, but there probably were other things
that I don't remember.
Q. Isn't it true that at least as of the time of your
deposition in 2007 that you couldn't recall anything else
that Mr. Bradford said with respect to the assets being sold
or not sold other than your recollection about copyrights
and patents?
A. If my earlier deposition said that it is probably true
because my memory is -- I'm 70 years old and my memory is
getting worse.
Q. Let's take a look at clip two, page 27, 19 to 28, 03,
to see if that is in fact what you said.
MR. ACKER: Your Honor, he just confirmed the
2296
deposition testimony. I don't know what the purpose is of
playing the clip.
THE COURT: Unless there is something contrary to
what he testified to in the deposition testimony, I don't
think it would appropriate for you to show it.
BY MR. SINGER
Q. As you sit here today, Mr. Messman, you agree that at
the time of your deposition the only thing that you recall
Mr. Bradford saying was this recollection that you have
regarding the copyrights and patents?
A. Yes, because it was the most important thing covered.
Q. With respect to the press release that was issued after
the transaction, I would like you to look at SCO Exhibit
526. This was a press release issued September 20, 2005.
I am sorry. 1995.
If we scroll down, why don't we scroll down a little
bit further for a moment. Do you see that it says Santa
Cruz Operation and Novell today announced a definitive
agreement for SCO to purchase the UNIX business from Novell?
Do you see that?
A. I see that.
Q. Do you see that under the agreement Novell will receive
approximately 6.1 million shares of SCO common stock? Then
if we go down to the next page, do you see that there is a
quote from Robert Frankenberg, chairman and C.E.O. of
2297
Novell?
Do you see that?
A. Yes.
Q. Do you have any reason to believe that this was not the
approved joint press release by Novell and SCO after the
announcement of the transaction?
A. I don't think it is a joint press release.
Q. Well, you wouldn't quarrel with Mr. Frankenberg's view
on that, since he was the chairman, would you?
MR. ACKER: Your Honor, I just object if he is
referring to the testimony of another witness in the trial.
I don't think --
MR. SINGER: I don't think I expressly referred to
testimony.
MR. ACKER: I don't think Mr. Frankenberg is
quoted, Mr. Frankenberg saying that this is a joint press
release and --
MR. SINGER: Now it is Mr. Acker who is referring
to the testimony of witnesses.
MR. ACKER: He needs to ask this witness's
knowledge. Ask him if he thinks this is a joint press
release. That is the question.
THE COURT: It is not appropriate for you to be
asking this witness to comment on the testimony of another
witness. If you can elicit testimony that would not do
2298
that, please.
BY MR. SINGER
Q. Do you think Mr. Frankenberg would be in a position to
say, since he was chairman and C.E.O. of Novell at the time,
whether this was an approved press release on behalf of
Novell as well as Santa Cruz?
A. He was in a position to know what the deal was.
Q. Do you see in the next paragraph it says according to
the terms of the agreement SCO will acquire Novell's
UnixWare business and UNIX intellectual property, correct?
A. I see that.
Q. Now, I would like to turn to the issue that you
discussed in cross-examination about the timing of I.B.M.'s
investment in Novell. You referred to that as March and
April of 2004, correct?
A. I think that is when it closed.
Q. But, in fact, the commitment of I.B.M. to invest $50
million was made in November of 2003, correct?
A. I think we made an announcement about that. Whenever
that was is when it took place.
Q. What is you best recollection?
A. I thought it was sometime in December, but you could be
right that it was earlier.
Q. Okay. During that same period of time, the fall of
2003, are you aware of whether or not Novell took action to
2299
waive SCO's legal claims against I.B.M.?
A. Yes, we did.
Q. In fact, you did that on June 12th and in October and
then again in February of 2004, correct?
A. I can't recall the February one, but I think the first
two are correct.
Q. In the middle of that process is when I.B.M. made a $50
million investment in Novell?
A. I think it is coincidental. The two are unconnected.
Q. In fact, you didn't need the $50 million in order to
purchase SUSE Linux because you had $750 million in cash on
your balance sheet at the time?
A. That is correct. We didn't need the money, but we
needed their commitment to support us in the marketplace.
Q. It is just a coincidence that these things all happened
at the same time?
A. They didn't happen at the same time. The waiver of the
patents and the copyright issues and the investment by
I.B.M. were at different times of the year.
Q. Well, are you aware of whether or not I.B.M. asked
Novell in June of 2003 to exercise its waiver rights at that
time?
A. I am not aware of that.
MR. SINGER: Thank you.
THE COURT: Mr. Acker?
2300
MR. ACKER: I don't have anything else, Your
Honor.
THE COURT: Counsel, may this witness be excused?
MR. SINGER: Yes.
THE COURT: Mr. Acker?
MR. ACKER: Yes. Thank you.
THE COURT: Mr. Messman, you do not need to worry
about being re-called. I would caution you, however, to
please not discuss your testimony with any other witnesses
in this case or in the presence of any other witness, or
communicate to anyone who will be a witness the nature of
your testimony in any way.
THE WITNESS: When can I find out what happens?
THE COURT: I am confident that you'll find out
very quickly after the rest of us do.
THE WITNESS: Thank you.
THE COURT: Again, you don't have to worry about
being re-called. You may return to your place of residence.
Mr. Jacobs.
MR. JACOBS: Your Honor, our next witness is
Michael DeFazio by deposition.
(WHEREUPON, the following deposition was played.)
Q. Good morning, Mr. DeFazio.
A. Good morning.
Q. Were you the head of the organization responsible for
2301
product management, marketing and licensing terms and
conditions for the UNIX System V operating system from 1984
until 1995, first with AT&T, then with USL and finally with
Novell?
A. I was the head from 1984 to 1995.
Q. After 1995, Mr. DeFazio, when Novell sold certain of
its UNIX related assets to the Santa Cruz Operation, Inc.,
which is now known as Tarantella, did you continue to be
involved in Novell's remaining UNIX business in, primarily
in an administrative and advisory capacity?
A. Yes, I had to help out to make sure Novell implemented
its part of the agreement. I also had a different
responsibility within Novell in that period.
Q. What were your responsibilities with respect to the
UNIX operating system during the period from 1984 through
1995?
A. My initial responsibilities when I transferred into the
organization was to head the product management
organization. Over the course of time I assumed increasing
responsibilities. I always maintained the product
management organizational responsibility. I then assumed
responsibility for licensing operations. I assumed
responsibility for our overseas affiliates in Japan and
Europe. I assumed UNIX marketing responsibility and I
assumed UNIX development responsibility.
2302
By the time we were in USL, I was the executive vice
president responsible for the overall UNIX system business
and within Novell, after we were merged into Novell, and
some period of time we consolidated UNIX operations within
Novell, and I was named executive vice president and general
manager of the so-called UNIX system group within Novell.
Q. And in January 1994 did you become executive vice
president of UNIX systems group of Novell?
A. Yes, I did.
Q. Did there come a point when you met with Mr.
Frankenberg and Mr. Michaels to discuss the possibility of a
sale of Novell's UNIX business to Santa Cruz?
A. Yes, there was in, I believe, it was July of 1995,
perhaps June.
Q. Would it be fair to say Mr. DeFazio that at that time
that you were the senior executive most knowledgeable within
Novell regarding UNIX?
A. Yes, that's correct.
Q. And did you spend, well, how much time, Mr. DeFazio,
did you spend negotiating that transaction with Novell?
A. I met with Doug Michaels and Bob Frankenberg and out of
that meeting we agreed to pursue a sale. I then with Ed
Chatlos and Ty Mattingly, Bob Frankenberg's assistant,
traveled and met with Doug Michaels and some of this
colleagues in Santa Cruz with a specific proposal for how we
2303
would do that sale.
We came out of that meeting with a high-level
agreement. I went back and we put together a team headed by
Ed Chatlos to work the details of how we would implement
that, and I spent essentially all of my time subsequently
working in one way or another aspects of that deal.
Now, most of my time after that meeting was spent
working within Novell itself on all of the details,
architecting the way we would do it. Working the time
frames and working the large number of personnel issues that
were associated with this since the organization had
probably 400 people at that time.
So I can't give you a number of hours other than to say
this was my prime job in that period and there was a strong
team of people, Novell people, Novell lawyers, Novell
outside lawyers working with their counterparts at Santa
Cruz to put together the details of the deal.
Q. On September 19, 1995 Novell entered into an asset
purchase agreement with Santa Cruz; is that right?
A. That is correct.
Q. Is it agreeable if during this deposition we refer to
the asset purchase agreement between Novell and Santa Cruz
as the A.P.A.?
A. Yes.
Q. Did there come a point when Novell sold certain UNIX
2304
assets to Santa Cruz pursuant to the A.P.A.?
A. Yes.
Q. Do you have any understanding, sir, as to whether
Novell retained any rights with respect to the UNIX System V
source code licensing business?
A. Yes.
Q. Including those under the I.B.M. related agreements and
the Sequent related agreements?
A. Novell retained substantive rights under the agreement,
as we had two UNIX system businesses and really sold Santa
Cruz one of them.
Q. And referring you to the last sentence of paragraph 10
of your declaration would you agree that the rights retained
by Novell were what you considered to be significant,
substantive rights?
A. Yes, I would.
Q. I believe you testified earlier that you understood
Novell to have retained significant assets in that sale; is
that right?
A. That is correct.
Q. And did the retained assets include, as you understand
it, important intellectual property and significant
substantive rights under the UNIX System V source code
license agreement such as the I.B.M. related agreements and
the Sequent related agreements?
2305
A. Yes, that's correct.
Q. And was responsible for negotiating the sale of
Novell's UNIX business to Santa Cruz?
A. Ed Chatlos and I were primarily responsible.
Q. How many UNIX businesses did Novell then have?
A. The way we looked at the UNIX business, we parsed it
into two components at that time. A UnixWare business and a
source licensing or legacy System V business.
Q. And what was the purpose of each of those businesses,
if you would briefly describe it?
A. The UNIX System V source licensing business was the
outgrowth of the original way that we provided UNIX system
technology to the marketplace where we provided it in source
form customers were adapted it to their marketplace needs,
they in turn would ship a binary version of the operating
system to their customers, pay us a royalty.
The UnixWare business was Novell actually developing a
final binary form version of the UNIX operating system that
was targeted to Intel specific X86 computer systems,
basically PCs and servers and providing that product, that
operating system product in binary form into the
marketplace.
Q. And initially did Santa Cruz express an interest in
purchasing both of the businesses?
A. Yes, when Ed Chatlos, I and Ty Mattingly visited them,
2306
as I related earlier, the idea was that we would sell all of
the UNIX system, both the UNIX system business to Santa
Cruz.
Q. And is that in fact what happened?
A. No, it is not. The value that we, Novell placed on the
combination of those two businesses was much, much larger
than Santa Cruz was in a position to pay for the business,
and so they basically in that meeting I referred to said
this is too expensive, whether we agree with your value or
not, it's still too expensive. We, Santa Cruz, in the form
of Doug Michaels came up with an idea and said, why don't we
just buy the going forward business, the UnixWare business
from you. Why don't you, Novell, retain the source
licensing business.
And it was very clear to me very quickly that since
most of the financial value we placed on the combination of
those two businesses was attributable to the UNIX source
licensing royalty stream that in fact that idea by Doug
Michaels was very good, and although we had to rework some
of the financials that that idea would allow us to get to an
agreement, whereby we could provide the UnixWare business to
SCO at a price much closer to what they could afford.
Q. Do you recall, Mr. DeFazio, what value you attributed
to both of the businesses combined?
A. I believe that our initial proposal going into that
2307
meeting was for a composite value of about $800 million.
That's my recollection.
Q. Do you have a recollection of what portion of the $800
million you attributed to the source code portion of the
business?
A. Certainly the majority of that 800 million would be
attributed to the source code business, but I don't recall
the specific fraction.
Q. Do you recall how Novell reacted to the Santa Cruz
proposal?
A. I reacted very well to it, because it struck me that
this was a way that we would close a financials value gap
that looked to be otherwise insurmountable. So I
complimented Santa Cruz, I said this is a very creative
idea, and I said it's good with me. I'm going to take it
back to my management, meaning Bob Frankenberg.
And it was very good from a Novell viewpoint because
although it meant we did not receive the kind of immediate
payoff from Santa Cruz that we had estimated the value of
the two businesses would be, what we did receive was a
substantial payment in cash and equity in Santa Cruz
Operation in excess of $100 million, but we maintained the
source legacy business.
At the time the $800 million I mentioned had two
components, the source business in UnixWare, much of the
2308
UnixWare component was projected growth from the future.
The value that UnixWare was contributing in 1995 was much
smaller and so by implementing this proposal Novell was able
to in essence maintain or keep the vast majority, 80 to 90
percent of the revenue stream from the two UNIX businesses
while shedding the vast majority of the expenses associated
with those two business, shedding perhaps 90 percent. So
Novell maintained a royalty stream that was financially
significant, very high margin, because the costs going
forward after the sale would be very, very small.
Q. As you understood the deal, Mr. DeFazio, did Novell
generally receive any royalties payable under the UNIX
System V source code license agreements including the I.B.M.
related agreements and the Sequent related agreements and
Novell paid Santa Cruz a five percent administrative fee for
its services in collecting such royalties?
A. Yes, that was the way that we implemented the deal.
The royalties would flow through to Novell from Santa Cruz
and they would be paid five percent for their work in
administering that.
Q. And you said twice, I believe, that Novell retained
significant assets following the sale; is that right?
A. That's correct.
Q. Do you recall that there was a provision in the A.P.A.
known as 4.16B?
2309
A. Yes.
Q. Let me refer you, if I might, to Exhibit 8 to your
declaration. And in specific the Section 4.16 B. It's at
page 24 of Exhibit A to your declaration.
A. Page 24 says 4.16.
Q. Right. And if you just look down the page you'll see a
subsection B. Do you see that, it begins buyer shall not.
A. Yes.
Q. Would you just take a minute to refresh your memory as
to the contents of that section.
A. Yes. Yes.
Q. Now, substituting Santa Cruz for the term buyer and
Novell for the term seller, Section 4.16B provides in part
Santa Cruz shall not, comma, and shall not have the
authority to, comma, amend, comma, modify or waive any right
under or assign any SVRX license without the prior written
consent of Novell, period. In addition, at Novell's sole
discretion and direction Santa Cruz shall amend, supplement,
modify or waive any rights under or shall assign any rights
to any SVRX license to the extent so directed in any manner
or respect by Novell. In the event that Santa Cruz shall
fail to take such action concerning the SVRX licenses as
required herein, Novell shall be authorized and hereby is
granted the right to take any action on Santa Cruz' own
behalf.
2310
Do you see that?
A. Yes, I do.
Q. Let me ask you, Mr. DeFazio, if you would tell me
please what you understood to be the intent of this
provision?
A. Yes. My understanding of this when we came back with
the notion that we would retain one business and sell the
other one, that was a high-level concept. And to then go
forward and do the A.P.A., which you can see from here is
perhaps 150 or 200 pages of documentation took a lot of work
on the part of SCO people and Novell people and outside
attorneys and the drafting of the document I was not
involved in, but the teams were involved. However, I had
provided specific guidance recognizing that this future
royalty stream would be very significant to Novell. And not
knowing exactly how we would craft the terms in the document
to protect that royalty stream I had said we have to
bulletproof, and I used those words, bulletproof, that's a
business term I think not a legal term, bulletproof the
parts of the agreement to make sure that Novell's ongoing
financial interests, which I knew would be very significant,
would be maintained, that there would be no loop holes
possible for Santa Cruz to be able to somehow get around
Novell collecting that -- that royalty.
So with that general guidance of bulletproofing the
2311
team then went off and parts of the A.P.A. reflect the
team's creation or ideas on how to achieve that
bulletproofing and this section is an example of that. So
this is part of the implementation to make sure that
Novell's ongoing lucrative financial interest would be
maintained and assured.
Q. Was it your understanding that the A.P.A. at the time
was intended to transfer the copyrights for UNIX to Santa
Cruz?
A. No. The A.P.A. as it was written retained it and my
understanding was that the retention was a way the team
crafted the words to implement the goal of bulletproofing
this financial asset stream. I was not involved in any
discussions within Novell or certainly with Santa Cruz that
talked about transferring the copyright or not transferring
it. It just appeared this way in the A.P.A. and that's what
was executed.
Q. So your testimony concerning the copyright issue is
based on your reading of the A.P.A.; is that fair to say?
A. Well, it is based on two things. It's my reading of
the A.P.A., but also my recalling that I was not involved in
any discussions one way or the other keeping the copyright
or transferring it. It just wasn't discussed with me and
wasn't discussed -- wasn't an issue that was escalated and
certainly wasn't discussed in my meetings with Santa Cruz.
2312
That would be, you know, kind of a specific of the deal, not
part of the broad discussions on the whole concept of what
we were trying to do with the A.P.A.
Q. But that would have been something within Ed Chatlos'
realm of responsibility if there were discussions about
that?
A. If there was a discussion and an impasse on that
question that certainly would have been escalated to me.
Q. If there was not an impasse but there was a discussion
was that something that would have been within Mr. Chatlos'
responsibility?
A. The entire A.P.A. if there was no impasse or
disagreement between the two parties generally that would
just take place and until it was reviewed for signature a
lot of the details we wouldn't even have been, I wouldn't
even have been aware of.
Q. And Mr. Chatlos would have been the person, the point
person for those portions?
A. He should have been aware of those details as team
leader, yes.
Q. If Novell owned the copyrights to UNIX why did Novell
need to take out a license from Santa Cruz to be able to use
the UNIX product?
A. Yeah, I was going to say that the way that you phrased
that to me is more a legal question.
2313
Q. Do you have any sense from a business perspective?
A. Yeah, the business perspective is that we had
transferred -- the asset to Santa Cruz, Novell wanted to
retain rights to do some things with that technology in the
future. The copyright retention portion that I spoke to
earlier I linked to more this goal of bulletproofing and
making sure that Novell's binary legacy revenue stream was
protected. The technology license gave Novell the right, if
they had wanted it to, for example, add Unix software into
its products like NetWare and in turn ship those to the
market, irrespective of what we were doing with our legacy
UNIX source business, our source licensee, so that's kind of
two different things.
Q. Well, if Novell was bulletproof, to use your term, with
respect to the ownership of the copyrights, then why did it
need a license as a business perspective from Santa Cruz in
order to be able to use that UNIX technology?
A. It was bulletproofed relative to the revenue stream.
It needed the license because this had nothing to do with
the revenue stream. This was to give Novell the rights to
take UNIX and very specifically combine it with its core
product which was NetWare if it chose to do and ship those
into the marketplace.
Q. Now, you talked about I think you used the term
bulletproofing in connection with this provision you're
2314
aware, are you not, that I.B.M. bought a fully paid up
license with respect to UNIX System V in 19 -- in the mid
1990s, right?
A. Yes, we discussed that earlier, 1996, April.
Q. So, if that was the case, then what need was there on
the -- on behalf of Novell to waive rights, source code
rights with respect to agreements that had already been
fully paid up? What bulletproofing or what interest was
being protected conceivably have been protected by Novell
under those circumstances?
A. I think you'd have to ask the Novell the need, what I
tried to say in conjunction with this and these exhibits
382 and so forth is that what Novell did was consistent with
my understanding of their rights in the A.P.A. I did not
try to comment on their motivations for doing that, which is
what I think you're asking when you say the need.
Q. Well, was it your understanding that Novell under the
A.P.A. had the right to modify provisions or cancel
provisions of SVRX source code agreements, software
agreements without having any -- without protecting any
interest that they had at stake in connection with the
royalty rights that they had retained?
A. Novell had the right if they felt a legacy licensee was
violating the license to take some actions and Novell had
the right to ensure which is part of the bulletproofing that
2315
the old Santa Cruz company could not take any actions which
would mess up its arrangement with those customers.
MR. JACOBS: That completes Novell's introduction
of testimony from Michael DeFazio. This was from a
deposition dated January 13, 2005.
THE COURT: Thank you.
MR. NORMAND: Your Honor, SCO has some counter
designations.
THE COURT: Do you know long those would be?
MR. NORMAND: I have been told it is about eight
and a half minutes.
THE COURT: Okay. Let's go ahead then.
MR. NORMAND: Thank you.
(WHEREUPON, the following deposition was played.)
Q. Are you currently represented in connection with this
case by Mr. Jacobs as well?
A. Yes, I am.
Q. And who is paying his fees?
A. His fees are being paid for by Novell.
Q. You signed a declaration in this case I believe in
October of 2003?
A. Yes.
Q. Who had drafted that declaration?
A. I.B.M. drafted it as a result of the meeting that I had
with them.
2316
MR. NORMAND: Your Honor, there was a problem with
the videotape during the deposition, so this following clip
did not make it onto the videotape. I would propose to read
the question and answer into the record and then have the
videotape continue.
MR. JACOBS: No objection, Your Honor.
MR. NORMAND: Question, after the sale, did your
work focus on Novell's broader network strategy? Answer,
yes. After the sale I took over a group that had to do with
Novell business processes that span the entire company, and
was sort of in support of what Novell was trying to
accomplish with a new networking strategy that it was
implementing post UNIX. I still continued, as I said
earlier, with my administrative oversight responsibilities
for any residual UNIX system related activities.
THE COURT: All right.
(WHEREUPON, the following deposition was played.)
Q. Do you have an understanding, Mr. DeFazio, as to
whether there was an amendment two to the A.P.A.?
A. I have an understanding that there was an amendment two
to the A.P.A.
Q. And in paragraph 53 of the declaration you say that you
were not involved in negotiating amendment number two, and
that you do not have personal knowledge as to what it was
intended to accomplish and are unable to address what it
2317
means. Is that an accurate statement?
A. That is correct.
Q. Were you directly involved in negotiating the April
1996 amendment or amendment X?
A. No, I was not.
Q. During much of your examination by Mr. Marriott you
were referring to a particular document or holding a
document in front and reading it while he was asking you
questions, was that the declaration that I.B.M. drafted for
you?
A. This is my declaration of October 2003, correct.
Q. And is that the document that you've had in front of
you during your entire examination by Mr. Marriott?
A. Yes.
Q. Who requested that you provide that declaration in
connection with this case?
A. At the end of my first meeting with I.B.M. Mr. Marriott
and/or his colleague Gabe Saltarelli asked me if I would be
willing to provide a declaration and I said I would be
willing to do so if someone else did the initial drafting.
Q. And that someone else who did the drafting was I.B.M.
--
A. Yes.
Q. -- counsel?
You, with reference to the asset purchase agreement, do
2318
you remember being asked questions about that agreement?
A. Yes.
Q. Okay. The negotiation team from Novell was led by a
person named Ed Chatlos; is that correct?
A. That's correct.
Q. Is it your view that Mr. Chatlos would have a strong
understanding of Novell's intent with respect to that
transaction?
A. Yes.
Q. Is there anybody who had a better understanding of
Novell's intent with respect to that transaction than Mr.
Chatlos that you know of?
A. Well, I certainly think that I had an understanding of
the intent and I certainly think that my boss, Bob
Frankenberg, had an understanding of the intent, and I'm
sure that our outside counsel had an understanding. Ed was
in the top tier of people with a very good understanding,
yes. Ty Mattingly was another one.
Q. And you said that you did not have any involvement with
amendment number two to the asset purchase agreement; is
that right?
A. That's correct.
Q. Were you still employed by Novell at at the time of
amendment number two?
A. Yes, I was.
2319
Q. So is it fair to say that after putting the negotiation
team together and attending the first meetings that you
discussed with Mr. Marriott that Mr. Chatlos was the person
who had primary day-to-day responsibility for the
negotiation of the A.P.A?
A. That's my perception, and it was Ed Chatlos I looked to
during this process as, you know, the principal.
Q. And with respect to amendment number two, is it your
view that amendment number two did not effect any
significant or substantial changes to the parties' deal as
it was embodied in the A.P.A.?
A. Well, I can't really answer that because amendment two
was, I was not involved in that.
Q. Do you think that you would have been involved if it
had been, if it had effected a substantial change to the
parties agreement under the A.P.A.?
A. I think I would have been involved if it required being
escalated to me. Apparently it did not.
Q. You spoke with Mr. Marriott about two businesses that
in your view were bifurcated for purposes of the A.P.A.
transaction?
A. Yes.
Q. And you referred to one of those as the source code,
source licensing business, right?
A. Yes.
2320
Q. That's the one in your view that was retained by Novell
under the A.P.A.?
A. Correct.
Q. Does that source licensing business include the
licensing of source code or is it just the collection of
binary sub, you know, royalties on sublicense products?
A. It was primarily the collection of royalties, but to
the extent that a licensee needed to extend its source code
rights to additional CPUs, additional computers, I believe
Novell would be paid a nominal fee for that under those
agreements, but by far the vast majority of those revenues
came about from binary royalties attributable to licensees'
shipments of binary forms of the UNIX operating system.
Q. And those binary forms of the UNIX operating system
were binaries distributed under already existing UNIX source
code licenses; is that correct?
A. That's correct.
Q. Now, the other portion, the portion that was
transferred, as you said, to Santa Cruz through the A.P.A.
is, I believe you described it as the UnixWare side of the
business. Is that an accurate description?
A. I called it the UnixWare business and it reflected the
binary product that Novell developed but UnixWare was also
the then current source product, so beyond SVRX UnixWare was
our latest and greatest instantiation of UNIX system
2321
technology and what we transferred was that current
technology and as importantly the engineering wherewithal to
continue to evolve that technology in the form --
Q. Okay.
A. -- of a subset of the engineering team.
Q. Let me rephrase the question. In your view was the
UNIX, was it the intent of Novell to transfer the
intellectual property of the UNIX program to Santa Cruz
through the asset purchase agreement?
A. To the extent that that was a part of that business,
yes, that would be my understanding.
Q. And was the intellectual property in UNIX an important
part of the going forward UnixWare business?
A. Yes.
Q. You said earlier that there was a team that was
involved in preparing this language for Novell. Who was on
that team?
A. Well, Ed Chatlos was the leader of the team and it
consisted of people from finance, from internal legal and
from outside legal.
Q. And in your view would Mr. Chatlos have a good
understanding of what 4.16B was intended to mean by Novell?
A. I would assume that he would, but I'm not sure, you
know, I can't say specifically. He has a detailed
understanding of every piece but as the guy I looked to I
2322
would hope I could have dialogued if I needed to at the time
with him on various pieces.
MR. NORMAND: Your Honor, that completes SCO's
designations for Mr. DeFazio.
THE COURT: Thank you.
Ladies and gentlemen, we'll now take a 20-minute
recess.
MR. JACOBS: I am sorry, Judge. Just one second.
Okay. I thought it was incomplete.
THE COURT: Is it complete?
MR. JACOBS: Yes.
THE COURT: That was all you needed from Mr.
DeFazio?
MR. JACOBS: Yes.
THE COURT: 20 minutes.
(WHEREUPON, the jury leaves the proceedings.)
THE COURT: When we return we'll start with
Mr. Brown?
MR. JACOBS: That is correct.
THE COURT: Is he going to go long enough to
finish today?
MR. JACOBS: I believe so.
THE COURT: I guess that wasn't a good question on
my part. Will he take the entire time?
MR. JACOBS: Yes, I believe so.
2323
THE COURT: Thank you, counsel. 20 minutes.
(Recess)
***** Part 3 *****
THE COURT: Are we ready?
MR. JACOBS: We are, Your Honor.
THE COURT: Okay. Ms. Malley.
We went a little bit longer because the jury
did not receive its allotment of rations until later on.
MR. JACOBS: I'll go along with Mr. Brennan. A
hungry jury is not a happy jury.
THE COURT: That's a good point.
Is Mr. Braham in the courtroom?
MR. JACOBS: Yes.
THE COURT: Okay.
(Jury brought into the courtroom.)
Mr. Jacobs.
MR. JACOBS: Your Honor, Novell calls Mr. Tor
Braham.
THE COURT: Mr. Braham, if you will please come
forward.
TOR BRAHAM,
the witness hereinbefore named, being first duly
cautioned and sworn or affirmed to tell the truth, the
whole truth, and nothing but the truth, was examined and
testified as follows:
THE CLERK: Please be seated. And if you would
please state and spell your name for the Court.
A. Tor Braham. T-o-r. B-r-a-h-a-m.
2324
DIRECT EXAMINATION
BY MR. JACOBS:
Q. Good afternoon Mr. Braham.
A. Good afternoon.
Q. What was your role in the 1995 Asset Purchase
Agreement between Novell and Santa Cruz?
A. I was one of the lead negotiators and the head
of the outside legal group that managed the transaction
on behalf of Novell as a partner at Wilson, Sonsini,
Goodrich and Rosati.
Q. How did you happen to become a partner at
Wilson, Sonsini? What was -- where did you start in
terms of school?
A. I went to college at Colombia University in New
York and then went to law school at New York University
in New York. I came out to California, really, to work
with technology companies. I started at a law firm in
Southern California called Manaf, Phelps, Rothenberg &
Tunis. And, after about a year and a half --
THE COURT: Mr. Braham, may I remind you that
the Court reporter has got to get everything you say, and
when you start using terms such as the names of law firms
and so on, slow down a little bit so everything can be
heard?
THE WITNESS: Okay. Sure.
2325
THE COURT: Thank you.
A. I joined Wilson, Sonsini Goodrich & Rosati in,
I think, 1984 as an associate and worked there, until I
left the firm in 1997, doing exclusively mergers and
acquisitions, initial public offerings, and intellectual
property work and related corporate work for technology
companies located in Silicon Valley and around the United
States.
Q. So give the jury a sense of your practice as of
the mid-'90's. What kind of transactions were you doing,
and what was your role?
A. So, by the mid-'90's, I had transitioned into
being primarily a lawyer working and advising on mergers
and acquisitions. I still did some work on initial
public offerings or registration statements with the SEC
for companies when they do financing, but I also
continued to do a fair amount of intellectual property
licensing for my clients.
So, I would have a range of clients, and I
would generally -- all corporations that were technology
companies, and I would represent them in everything, sort
of soup to nuts, but, by the mid-'90's, I had
transitioned into a particular focus on mergers and
acquisitions for the tech companies.
Q. And describe your relationship with Novell as
2326
of 1995.
A. So, Novell was one of my biggest clients, and
the firm's biggest clients, and particularly around
mergers and acquisitions or M&A. We had done work from
them, worked with them for a long time. And my mentor
and the top partner at Wilson, Sonsini is a guy named
Larry Sonsini. And he was on the board of Novell and was
one of the lead directors there who created, in addition
to my work with the company, a close relationship.
And so I knew the company well, and I had, by
the mid-'90's, worked on eight or nine different
acquisition transactions representing them, and they were
one of my biggest clients and one that I was -- you know,
a substantial portion of my time was working with them,
as they did all kinds of deals and built the company.
Q. So, again, just to give the jury a sense of
this, as an outside counsel, what kind of understanding
do you gain of a company like Novell's business in the
course of representing them?
A. Well, you get to know, you know, all the
different moving parts, and you get to know all the
people as well. You -- frequently, when you work with
them on an acquisition, you get to know the business,
intimately, of what was acquired, and then sometimes,
when those businesses are separated or you do a different
2327
transaction, then you kind of bring your institutional
history to bear on remembering what you learned when you
worked on a different deal.
You also -- one of the reasons why corporate
law firm relationships are long-term relationships is
that you learn how decisions are made within a company
and how to interact with the company to help them come to
decisions and come to terms on a transaction, and which
is frequently difficult to do when it's a new client, but
when you have a long history, you get a familiarity with
all the people and what their strategies are and
objectives are for the company, as well as how to -- how
to navigate through all the different voices that compose
a corporation.
Q. So, as of 1995, your relationship with Novell,
who were you interacting with? Who were you taking
direction from?
A. At that time, David Bradford was my primary
interaction. He was the general counsel of Novell. But,
more importantly, he was, for me, the lead voice on --
about what kinds of business decisions Novell was making,
and he would give me direction on how to represent Novell
in various different transactions, but also Jim Tolonen,
who was the CFO. Jim actually resided out in the West
Coast. Novell was headquartered in Provo, Utah, but it
2328
had a very significant business fingerprint in Silicon
Valley, and Jim Tolonen, the CFO, lived out on the West
Coast, and that had me meeting him a little bit more than
the Utah -- all of the other Utah Novell people.
Mary Burnside, who was the chief operating
officer, who was -- kind of ran the nuts and bolts,
day-to-day of the company, less involved in deals, but I
would interact with her.
Q. So, as of 1995, to sum up, you have done,
eight, nine transactions. You've worked with David
Bradford on those transactions?
A. I worked extensively with David Bradford, but I
also worked with my partner Larry Sonsini, who would give
me direction from time to time, and I probably worked on
another, I mean, maybe that many transactions that didn't
happen, and I also worked on deals that were contemplated
or ideas that never crystalized into actual
transactions.
Q. And, in all those transactions, how would you
describe your role -- the role of David Bradford in
giving you direction, in a nutshell?
A. He would be the person I would get the most
ultimate instruction from as to how to -- how to advance
Novell's interest and where the various different
tradeoffs that occur in a deal should be balanced. And
2329
we had done enough deals together where we kind of had a
very efficient methodology of -- with him as sort of the
business negotiator and guider of me, and me being the
implementer along with him. And we understood each other
well.
Q. Mr. Braham, I'd like to show you a document,
Exhibit H-2, and ask if you can identify that for us,
please.
A. This is the agreement and plan of merger or
acquisition agreement under which Novell acquired the
UNIX business from AT&T, through acquisition of the UNIX
System Laboratories, Inc. company, which was a
corporation owned by AT&T -- owned primarily by AT&T. It
actually had some small minority investors as well.
Q. Did you represent Novell in that transaction?
A. I did.
MR. JACOBS: Your Honor, we would move H-2 into
evidence.
MR. SINGER: No objection.
THE COURT: It will be admitted.
(Novell Exhibit H-2 received in evidence.)
Q. BY MR. JACOBS: To step back a little bit in
time Mr. Braham, did you become familiar with the UNIX
Operating System in the course of your work with Wilson,
Sonsini?
2330
A. Yes.
Q. And how did that happen?
A. Well, over the years, even before this
transaction, UNIX was a pretty high-profile collection of
technologies. I had worked a lot with companies in
Silicon Valley who used UNIX or touched UNIX in various
different parts of their business. SUN Microsystems, for
example, was a client of Wilson, Sonsini, and UNIX was
the other operating system or collection of operating
systems out there, in contrast to Microsoft and Microsoft
Windows, Microsoft Windows NT operating system. And a
lot was covered in the press and certainly in the
industry around UNIX and the importance of UNIX as an
alternative to Microsoft, particularly as Microsoft
became more and more powerful and the perception that
Microsoft was becoming a monopoly emerged.
So I learned about UNIX through our clients,
but also through the financial and technology press, but
never worked directly with the UNIX technologies until
this deal.
Q. So, let's describe this -- this transaction
in a nutshell. It's called an Agreement and Plan of
Reorganization and Merger. Can you describe for the jury
in sort of a lay-person's terms, what the form of the
Novell/USL/AT&T transaction was?
2331
A. So, I mean, in simplest terms, it was an
acquisition of the corporation, UNIX Systems Labs. It's
called an agreement and plan of reorganization and merger
because it was done as a stock-for-stock transaction.
Novell issued stock, which went to AT&T, and acquired
this business, and for tax reasons and for historical
corporate reasons, these things are done in what's called
a reverse triangular merger, which is a little
complicated.
But, basically, you have the subsidiary of AT&T
merge with a newly-formed subsidiary of Novell end up as
a subsidiary of Novell. And there's a variety of reasons
why it's done that way rather than simply
I-buy-your-stock kind of deal, but largely driven by tax
and some corporate history.
Q. And describe the -- as compared with other
kinds of M&A deals, is it simpler or more complicated if
you buy an entity like, say, USL, as compared with buying
specific assets, for example?
A. You know, generally speaking, it's simpler to
buy the whole company and just to buy a business because
then you're not going to have to go through and parse
what assets am I getting? What assets am I leaving
behind? Asset deals are very time intensive and very
complex.
2332
You know, I think, intuitively, sometimes you
think, well, if I don't buy the whole business, maybe it
will be simpler. But the reality is, it's simpler to
say, I'm going to buy the whole corporation. And you
just inherit whatever is there; whereas, when you do an
asset deal and buy a business out of another entity but
by doing it by assets, you now have to go essentially
asset by asset and define what's coming, what's staying
behind.
And very often there are shared assets or there
are assets that bear not only on the business you are
acquiring but on the business that's being left behind
and so you have to parse out, how do we share? And this
is not just intellectual property. How do we share a
building that has employees who might work for both
businesses? How do we share customers who may be
continuing.
And so the process of doing an assset deal
is -- you know, you can start with, we are going to buy
this business, but then you have to actually go and, in
some cases, down to the desk top, what am I transferring
and what am I keeping? And it's a lot of work.
So, as a general rule, you know, you kind of
want to buy the whole corporation if you can so you don't
have to have the arm wrestling asset by asset, just
2333
because it's a lot of work. And it's also possible, you
know, to have confusion in that. But, you know, people
do asset -- when you have a business within a larger
entity, you frequently are stuck with doing an asset
deal, and when you have a business where you're
continuing relationships on both sides, you frequently do
an asset deal.
Q. So, this was the simpler kind of acquisition,
an acquisition of an entity?
A. Yes. It was simpler. It was not simple, but
it was simpler.
Q. Okay. And this being the USL transaction. Do
you recall the value of the stock that Novell issued in
exchange for the UNIX Systems Laboratory, Inc., business?
A. Yes. It was approximately 300 million.
Q. So, this transaction is dated as of February
12, 1993. And, about two and a half years later, the
Asset Purchase Agreement between Novell and Santa Cruz is
going to get negotiated. What's your understanding of
what changed as you were brought into the APA? What
changed such that Novell was now divesting assets that it
had just acquired?
A. So, Novell's interest in UNIX was -- it had a
variety of different purposes, in acquiring UNIX, in
owning it, and in ultimately selling it, selling a piece
2334
of the business. There was the financial side. This was
an important technology that there was royalties that
were -- that USL was collecting and Novell was partnered
with the company that partly built itself through
acquisition, but there was also a strategic side which
was that Novell, in the industry, had a very important
role in providing software and infrastructure for
networking, and it was important for its business that
Microsoft not have too much strength and too much power
over the entire world of software.
Netware, which was its core product, and then
ultimately Netware directory services and other related
products, would flourish more if Microsoft was not in a
position of going to corporations and saying: You'll
take my operating system. You'll take my networking
architecture. You'll take my applications. I'll provide
it all to you.
Netware was a set of infrastructure software
that would work to connect different computers, and
particularly disparate kinds of computers, and if
Microsoft had too much dominance, the importance of
Netware and the value of Netware and the money that could
be made by selling Netware would be diminished.
So, it was originally acquired, UNIX Systems
Labs, partly for financial reasons, but partly for Novell
2335
to become a good shepherd of the UNIX Operating System
and collection of operating systems, which is really what
it was, so that the other players in the industry, major
players in the industry, would have -- could sell
computers that ran on operating systems that were not
solely Microsoft; so AT&T, SUN, HP, Sequent, Digital
Equipment Corporation, on down, would have -- not have to
only seem Microsoft software.
And there was a feeling, at AT&T, that they
were not in a great position. AT&T, of course, is a
phone company and the backbone of the internet from a
physical standpoint, but that they weren't in the best
position to license software around the country, to
develop it and to be responsive to all of the
corporations who wanted to use UNIX, and there was a
feeling that Novell was a good home for it.
And Novell felt that way, and AT&T felt that
way, and so they bought it.
Q. So that explains the 1993 transaction. That
explains the inbound transaction, right?
A. Yes.
Q. Okay. Then what happens?
A. Once they bought it, they found that they were
not in the strongest position to support and proliferate
UNIX. They had their own battles to fight around other
2336
technologies, Netware, GroupWise, others. And they began
to feel that they couldn't invest all the resources that
would be desirable to make it as successful as possible,
and they were developing a set of technologies, a
particular flavor or brand of UNIX called UnixWare, and
they had worked on that, and there was a feeling that
they were not in the best position to continue to develop
it and to market that particular flavor to exploit.
Now, UnixWare was addressed to the Intel -- the
Intel microprocessor hardware, and there was a feeling
that -- which is where Microsoft had the greatest
dominance. And there was a feeling at Novell that
emerged that we want this to be successful, but we can't
put all the wood behind this arrow ourselves, and, if we
can find another home for UnixWare, that would be
desirable if it could be somebody who would really go
after that business more agressively and with more focus
than we can.
Q. So you gained this understanding as you were
brought in to represent Novell in the Asset Purchase
Agreement; is that correct?
A. Yes. I may have got some of that understanding
simply working with Novell over the two years in the
interim, but got more of it as we got into discussion of
the potential sale to SCO.
2337
Q. In a general case, leaving aside the specifics
of the Asset Purchase Agreement for a minute, at what
point does an outside counsel like yourself get involved
in an M&A transaction like this?
A. Well, you're talking about any outside counsel?
I mean, it might be any point --
Q. Well, let's take your experience with Novell.
Typically how would you get get involved, and at what
point would you be brought in?
A. In the case of Novell, I would probably get
involved maybe a month, six weeks before a transaction,
when people were still crystallizing ideas about the
deal. In other situations, outside counsel isn't brought
in until the end. And, in fact, in many companies -- not
Novell -- companies might do transactions by themselves
without outside counsel at all. They might do them all
internally.
But, with Novell, I would hear about them
relatively early, either through David Bradford or Jim
Tolonen or others at Novell or through my partner Larry
Sonsini who, of course, sat on the board, and I would
hear about things in the germination stage more often.
Q. Now, at some point, you get involved in the
Asset Purchase Agreement?
A. Yes.
2338
Q. What is your recollection when your period of
intense involvement actually got underway?
A. The most intense involvement I remember over
the last week or so before the announcement of the
transaction. And it's hard for me to remember exactly.
It was 15 years ago. But I remember what people
sometimes refer to as a forced march, where people show
up at a law firm, day after day after day, negotiating
drafts and turning a deal. And you have representatives
of both sides there. And I remember that forced march
very clearly at the offices of Brobeck, Phleger,
primarily in -- I don't remember exactly the time
frame.
Q. It sounds like you have a picture in your mind
of this place?
A. I have a picture in my mind of the place and
the conference room and where I was sitting and where
other people from the law firm on the other side, Brobeck
Phleger, as well as some SCO people were in the room.
And I have a picture in my mind of an exhausting series
of days, including one weekend, all weekend long.
Placing that in an exact time frame is just very hard
after 15 years.
Q. Now, Mr. Braham, who was on the Wilson, Sonsini
team representing Novell in that forced march to
2339
concluding the agreement?
A. So, primarily it was myself, and then a younger
lawyer named Allen -- Aaron Alter, who is a partner there
now. I'm not sure whether he was a partner or a senior
associate. At the time, I think he was a young partner.
And then a very smart associate named Shannon Whisenant,
who worked at Wilson -- actually she's from this area --
but she was a younger associate.
And then, behind that, there was a tax lawyer
named Don Bradley. He didn't appear at the negotiations,
but he was -- gave me counsel behind the scenes. And
then Larry Sonsini, although he wasn't day-to-day on the
transaction, was back in his office and a resource for me
to consult with.
Q. And who were your counterparts representing
Santa Cruz in the negotiations?
A. So, there was -- the most senior person who did
appear at the negotiations was a partner there named Ed
Leonard, who was one of the top business lawyers at
Brobeck, Phleger. There was a younger partner named
Scott Lester and, then, most immediately, day-to-day, was
a smart associate there named Jeff Higgins.
Q. Now, in an M&A deal, as opposed to maybe some
other kinds of transactions, talk about the differing
roles and agendas that people in a transaction like that
2340
might have and what the role of outside counsel is in
putting all that together?
A. So, the different agendas among --
Q. Among the company representatives, the people
who might be funneling to you or funneling through the
general counsel.
A. On the Novell side?
Q. Yes.
A. So, there's David Bradford, who was the primary
communicator to me and the lead negotiator as to what
positions to take and what was most important, both
objectives and weighing of tradeoffs that occur in the
negotiation, and he would be right up there. And he had
been involved in all of the transactions for Novell, and
you know, I viewed as a very credible, authorized and
dispassionate voice as to how to think about Novell's
interests.
Then there were a whole range of people who
were involved in the USL UNIX business within Novell, and
some of those people -- in fact, most of them had come
over from USL when we acquired USL. When Novell acquired
USL from AT&T. And those people were good people and
were very important to the UNIX business, but they --
they were more interested in that business and, as I
remember, I knew many of them, and I don't know if it's
2341
even clear which we were going to move over and be part
of the acquired business.
One of the things that happens in a
disposition, when a company is being -- selling off a
business, is you have people who still are technically or
still working for the seller but who are going to be
moving over and working for and going to be compensated
and fed by and looking for protection from the buyer.
And this results in an inherent conflict of interest.
It's nothing that's wrong about it.
It's just that you have people whose roles are
moving, and their interests frequently are different than
the interests of the seller. And, frankly, they are also
different, sometimes, from the interests of the buyer.
They have interests that coincide with each side and some
that are different from each side. So there was that
universe of people, and I think, you know, they were --
they have to be involved because they are the most
knowledgeable about the business, but you also have to be
sensitive to -- that not everything that they want is
what's necessarily in the best interests of your client,
the seller.
Q. Okay. And when you are referring, now, to your
client, who, ultimately, are you accountable to?
A. So, it would be the -- David Bradford is the
2342
spokesman for the client, and he was accountable to the
board of directors of the company and to -- and with
direction from the CEO, but not exclusively the CEO of
the company.
Q. Specifically, with respect to the Asset
Purchase Agreement, then, what was your day-to-day
responsibility in that intense period of negotiation?
A. To represent Novell, to determine what Novell
wanted to accomplish with the transaction at a strategic
level as well as an execution level, to be their primary
mouthpiece in the negotiations, funneling through all the
different inputs that I would get from Novell, to
negotiate for them the best I could, to protect their
interests, to draft the contract along those lines, to
supervise people who worked for me to draft other pieces
of the contract along those lines, to report back to
David Bradford and others at Novell faithfully what the
art of the possible is in the negotiation and to
implement the best deal I could get Novell consistent
with the direction I had been given as to how to protect
them.
Q. As you got into the period of intensity for
your involvement, what did you understand some of the
specific issues to be on account of the fact that Santa
Cruz was the acquiror here?
2343
A. So, fairly along the way, we discovered that
Santa Cruz, as we spent more time with it, really did not
have the financial resources to buy all of the UNIX
business that was owned by Novell, and it was a small
company. It was struggling. It was a publicly-held
corporation, but it had struggled for a number of years.
Its stock price had come under pressure. I think there
was a perception that its business, which was developing
and licensing a flavor of the UNIX business for the Intel
386 microprocessors, that that business was under
pressure and potentially not viable at all, long-term.
So its stock priced suffered, and they didn't
have sufficient -- they didn't have significant cash.
They didn't have any excess cash. What cash they had,
they needed for their operations, and they had a limited
market cap or a limited market value of their company and
thus were limited in their ability to pay for a
collection of technologies that Novell had purchased for
300 million and were worth a tremendous amount of money.
Q. So, how was the deal structured in order to
address that concern?
A. So, a number of -- a number of moving parts to
go in to get into a collection of economics that could
make the deal work with Novell. So, first of all, they
got what turned out to be a little over 16 percent of
2344
Santa Cruz Operation's stock.
Q. Meaning Novell, here?
A. Novell did. And that particular piece was
constrained by a NASDAQ, which is a Federal Rule that
says that a public company can't issue more than that
amount of its shares in an acquisition without getting
stockholder approval of its own shareholders.
So if you were going to issue, for example, 50
percent of your company to somebody to acquire a
business, you need stockholder approval. To get -- you
need to go to your own stockholders for approval. To do
that, you need to file a proxy statement with the
Securities and Exchange Commission, and that proxy
statement needs to include a tremendous amount of
information, including audited financial statements of
the business that you're acquiring.
In this case, there weren't separate audited
financial statements for the UNIX business or the
UnixWare business or any piece of it at Novell. And so
financial statements couldn't be obtained that would have
enabled SCO to go to its shareholders, and it would have
taken a year. I have been through this a number of
times. It could have taken at least a year for them to
be in a position to make that filing.
So nobody wanted to wait a year, so that was a
2345
constraint. We had to keep the number of shares below
that threshold so that we wouldn't have to go through
that process. Time was passing, and it's not desirable
for either side to go through that. So we're limited in
terms of the value of stock, and that was about 50
million.
So, beyond that, there was a royalty
arrangement that said that, if SCO developed -- was
required to actually develop and complete a new version
of UnixWare called the merged product and go out and
license that, and there would be royalties that would
come, if they hit their business plan, to Novell, to pay
a portion -- to pay additional cash flows to Novell
for -- that would come back to Novell. And that was
viewed as a potential contingent element of the purchase
price.
And then, perhaps most importantly, Novell
retained all the economics and relationships arising out
of the UNIX business. This is not the UnixWare flavor,
but the basic UNIX business under which Novell, USL and
then Novell, had licensed to IBM and SUN and HP and
Sequent and all these other companies, their own version
of UNIX. Those -- that business or the economics of that
business is retained for Novell, so that we weren't
selling all that we bought from AT&T. Novell wasn't
2346
selling all that we bought from AT&T.
We basically carved down to what SCO could
afford to pay for, which was the UnixWare business, or
the right to exploit and develop that particular flavor,
which was the objective of the deal to begin with.
Q. So, let's talk for a bit about the retained
portion of the business, the UNIX part of the business
that dated back to the AT&T days, as opposed to the
UnixWare business. Let me -- as the deal was presented
to you for implementation, did you understand that SCO
would have some role, vis-a-vis the old UNIX business, or
SCO would have some role, vis-a-vis the old UNIX
business?
A. Yes.
Q. And what was that role?
A. They were going to be the agent to manage the
collection of monies, of royalties on behalf of Novell,
of those older base UNIX businesses, those other
relationships. And the reason for that is we were
transferring all the physical manifestations of the
contracts and the people to SCO, and it made sense for
there just to be one administrator, so they acted as an
agent.
They were intended to act as an agent to manage
that business on our behalf, on Novell's behalf, so that
2347
you wouldn't have a licensing group at Novell and a
licensing group at SCO doing -- you know, tripping over
each other. They were basically put in as an agent.
Q. I'm showing you U-3, Mr. Braham. Is U-3 a
draft of the Asset Purchase Agreement with your
handwriting on it?
A. It is.
MR. JACOBS: Offer U-3 into evidence, Your
Honor.
MR. SINGER: No objection.
THE COURT: U-3 will be admitted.
(Novell Exhibit U-3 received in evidence.)
Q. BY MR. JACOBS: So, Mr. Braham, this is a draft
of the Asset Purchase Agreement. It has a typed-on-it
date, in the lower left-hand corner, of September 16,
1995. Do you see that?
A. I do.
Q. And it has a lot of your handwriting on it,
right?
A. It does. That's my handwriting.
Q. This is only three days from the closing,
right -- not the closing but the execution of the Asset
Purchase Agreement?
A. I believe that's correct, yes.
Q. So does this refresh your recollection a little
2348
bit about what you were referring to as to the forced
march and as to when that was likely taking place?
A. Yeah. I believe that the forced march of the
day-after-day meetings, that this was in the middle of
that.
Q. Now, if you turn to, in the draft, page 26,
Bates Novell 42712.
A. Yes.
Q. I'm sorry. Twenty-seven Can you see a section
there marked 4.16?
A. Yes.
Q. Now, what's going on in this section and what
can you tell, from some of the handwriting that you've
applied to this draft?
MR. SINGER: Excuse me, Mr. Jacobs, the copy of
this exhibit you have provided me doesn't have page 27.
MR. JACOBS: It's out of order.
THE COURT: Nor does mine. Where will I find
it?
MR. JACOBS: It's out of order, Your Honor.
It's before 26.
THE COURT: What's the Bates number?
MR. JACOBS: 42711.
THE COURT: 427.
MR. JACOBS: 11.
2349
THE COURT: 11?
THE WITNESS: So this is -- 4.16 is the key
provision that embodied the deal that the UNIX business,
as compared to the UnixWare business, that the old UNIX
business, the base ownership of UNIX and the relationship
of all the other hardware companies, IBM, SUN, HP,
Sequent, etc., that those licenses and those
relationships would be -- would remain with Novell, but
be administered by SCO.
And I'm putting in language here -- this is my
handwriting -- to make very clear that SCO did not have
the right to modify or change or waive those licenses
without our written consent and that they were acting --
they were to act only as our agent, and, if they did not,
we could step in and do it ourselves. So this was an
enforcement mechanism that established that SCO would act
as Novell's agent to exploit these SVRX licenses, which
is really -- think of it as the UNIX relationship with
the other big companies.
And it was important that we establish that
this is Novell's business, essentially, and their
involvement in it is to be our agent, and if they didn't
do what they were supposed to do, we could step in and do
it on our own.
Q. The concept of an agent, that's something that
2350
lawyers become familiar with in law school, correct?
A. Yes.
Q. And what's the basic idea of an agent and what
their duties are?
A. So, if you are -- if you own an asset or a
business or have the economic rights to something, you
can appoint somebody to act on your behalf so that you
don't need to be there every minute and sign every
document or to exploit -- it empowers somebody to work
for you and to represent you.
And we all have real estate agents when we sell
our home, and they might go into negotiations on our
behalf when we are selling a home or when we are buying a
home. Sometimes the agents don't have any power on their
own. Sometimes they are given limited powers, but within
the scope of the agency, to act on our behalf.
You see it in real state. You see it in all
kinds of businesses, where businesses identify somebody
who has a limited power to do the work on behalf of
somebody else, and they frequently get -- in our real
estate deals, we get commissions. In this case, they got
a 5 percent share of the royalties.
But the idea is, is that it's our money, our
business, and you work for me except for your slice of
the economics. And that's what we were trying to get at
2351
here.
Q. And if the person who has retained the agent is
dissatisfied with the agent's performance, what can
typically happen?
A. Well, then you can terminate the agent at-will.
Now, there's frequently negotiations over -- in a real
estate deal, you can terminate your agent, but if he's
brought you a buyer, you can't terminate him and cut him
out of that fee. You have what people call a tail that
deals with a transitional relationship between
termination of an agent and going to maybe -- and
starting with a new agent. But the agent works for and
at the pleasure of the principal and has frequently
fiduciary duties to the principal, meaning very high
duties to work for you, not for himself.
Q. And what were you trying to configure here,
vis-a-vis the agency relationship that you testified
to?
A. I was trying to configure here -- or not really
me. Novell was trying to configure here, with me as its
negotiator and implementer, a relationship where SCO
would work on Novell's behalf around this set of
technologies to maximize and assist Novell in maintaining
the viability of this business because this was a
critical part of the purchase price that made it possible
2352
for them to buy the UnixWare and take over the UnixWare
assets that it got.
Q. And did Novell, in the drafting that you did of
section 4.16, limit its authority to direct SCO as to
what it could do vis-a-vie the UNIX licenses?
A. It did.
Q. Sorry?
A. It did restrict SCO. The language that I
recognize here says: Shall not have the right to enter
into future licenses and amendments of the SVRX licenses,
it says, except as may be incidental to the UnixWare
business that they were acquiring.
And it -- they couldn't do SVRX licenses
without our consent.
Q. And if you go to the bracketed sentence: In
addition, at seller's sole discretion and at seller's
direction, buyer shall amend, modify or waive.
Do you see that? It's highlighted on your
screen, Mr. Braham.
A. Yes. Yes.
Q. Did Novell, seller, limit itself in any way as
to the direction it could give to Santa Cruz, the buyer?
A. It did not. That sole discretion is put in
there to try to make completely clear that Novell is in
control here, and Novell has the right to tell SCO what
2353
it can do and can't do and to avoid -- people talk about
for the avoidance of doubt. That's something people talk
about in legal contracts. That's in there for the
avoidance of doubt.
Q. The avoidance of doubt of what, sir?
A. As to whether Novell had complete rights to
control what happened with the UNIX business, the SVRX
historical UNIX assets and technologies.
Q. Showing you V-3, is that your handwriting on
V-3, sir?
A. It is.
MR. JACOBS: I move V-3 into evidence, Your
Honor.
MR. SINGER: No objection.
THE COURT: It will be admitted.
(Novell Exhibit V-3 received in evidence.)
Q. BY MR. JACOBS: Now, if you turn -- so V-3 is
another draft of the Asset Purchase Agreement with your
handwriting on it; is that right, Mr. Braham?
A. It is.
Q. And now if we turn to section 4.16 in this
draft, which is at 42765, could you read aloud,
Mr. Braham, the handwritten box at the bottom of that
page?
A. "In the event that buyer shall fail to take any
2354
such action concerning the SVRX licenses as required
herein, seller shall be and hereby is granted the rights
to take any such action on its own behalf."
Q. So, the intent of that language, Mr. Braham,
was what?
A. If SCO didn't do what it was supposed to do as
our agent, we could step in, on our own, on our own
initiative, at our choice, and do it ourselves. And so
it's intending to give us the right to do that, as well
as granting us any rights we need in order to be able to
have the power to do that. So, it is intended to be a
crystal clear communication that Novell can step in and
protect itself if SCO goes off the reservation.
Q. Now, were there a couple of particular concerns
that Novell had about being able to direct Santa Cruz
back in September of 1995? Were there some agenda items
that related to this provision in the company's agenda?
A. I'm not sure I understand what you mean by
that.
Q. Were you aware that Novell had entered into
buyouts of SVRX royalties going into these negotiations?
A. Yes. They had done -- I believe that they
had -- I'm not sure what they had done before, but there
was always the possibility of doing complete buyout
transactions with the end user -- not really the end
2355
user, the OEM customer of UNIX, such as an IBM, Sequent,
HP, other big companies that might be running royalties
in the UNIX relationships.
In other words, those companies pay a per-copy
fee or pay for source code access, and they might do a
deal with Novell, where we just pay a lump sum, and now
we have a royalty-free, unfettered right in the future.
And the ability to do those buyouts was something that we
were very interested in preserving.
Q. And then was there a project related to Hewlett
Packard that was on the company's agenda at that time?
A. There was. So -- it was believed -- I
believed. People at Novell communicated to me that they
believed that the best party to advance UNIX, for the
Intel 64 bit architecture. So, at this time, Intel's
microprocessors were 32 bit microprocessors.
And think have of it as they are like a
6-cylinder car but not a 12-cylinder car. And so you had
software in UNIX for the 6-cylinder car, but HP was
working on its 64 bit architecture, and it was believed
that they would be the best party to develop the software
for the 64 bit architecture, so the 12-cylinder car.
And Novell -- it was very important to Novell
to retain the rights to enable HP to develop that flavor
of UNIX. And another purpose of the retention in rights
2356
is so that Novell had the ability to enable HP to go off
and do this.
So, the licenses to UNIX with these other big
companies, it wasn't as simple as we're granting you
technology and you can put it with your computers and
ship it. Within each of those relationships, there was
source code, which enabled those companies to go off and
develop their own flavors of UNIX and to use in their own
computer systems. And, in this case, HP, there was one
coming up with HP, where they were going to develop a
flavor for the 64 bit microprocessor, and we wanted the
flexibility -- insisted upon, and I don't even think it
was controversial -- the flexibility to grant those
rights to HP to allow them to do that for the benefit,
ultimately, of UNIX in the marketplace.
Q. Now let's create a picture here of what's going
on. You're drafting away. You're in this conference
room. How are the negotiations actually taking place
between the Santa Cruz representatives and the Novell
representatives over issues like this particular
language?
A. So, from time to time, Santa Cruz executives
might appear for a very short period of time in the
negotiating room, but they were not the voice. They
weren't negotiating anything. The negotiations were
2357
happening between me and my team and Brobeck and its
team.
So the way it works, which is very common in
the way complex deals are done is, each side funnels in
its viewpoints, its hopes and aspirations and fears into
their negotiating people, and then that -- those
negotiating people articulate a position to the other
side, which then is communicated to the lawyers on the
other side, and then the lawyers funnel that back to
their people. And so you kind of a funnel of all these
different inputs which then get put out to the lead
negotiator.
And it's helpful, to avoid chaos in deals, that
that there actually be a single voice representing an
entire constituency on each side. It isn't always the
case that it works that way, but in this situation it
did. They had Brobeck, Phleger as their voice. We were
live, in person; me in the conference room, in their
offices, as well as Aaron Alter with me most of the time,
and the lawyers on their side. And so that was -- that
was the war room, where the deal was negotiated.
Q. And would the people on your team, acting at
your direction, would they exchange drafts with the
Brobeck representatives?
A. We would. There was -- we would send over, by
2358
e-mail or fax, drafts. This was a time where e-mail was
happening, but we all forget that there was a time before
e-mail, but we would have e-mail at this point as well as
faxes.
Q. The good old days?
A. Yeah.
Q. Let me show you D-4, please. What is D-4,
Mr. Braham?
A. I'm trying to look at this and see whether --
it looks like it's a fax. I'm not sure whether this was
a fax or an e-mail. But it's an enclosure, sending some
language to Jeff Higgins, who was the associate on the
deal for Brobeck, from Aaron Alter.
Q. And Aaron Alter was your subordinate on the
team, correct?
A. Yes. So this is a fax, so we're still in the
time of the faxing.
At this point, people, when they had
handwritten stuff on documents, they would fax rather
than e-mail because -- right now you can e-mail, and you
can put it in a PDF and then you can e-mail it. Back
then, PDF's were not -- it may have been possible, but
when people had a mark up of something, they would fax
those pages rather than e-mail.
THE COURT: Mr. Braham, I've got to ask you.
2359
You've got a lot of information, but only some of it is
relevant to the case, and I want you to please answer the
questions posed to you by Mr. Jacobs as directly as you
can, please.
THE WITNESS: Okay.
MR. JACOBS: I offer D-4 into evidence, Your
Honor.
THE COURT: Any objection.
MR. SINGER: No objection.
THE COURT: D-4 will be admitted.
(Novell Exhibit D-4 received in evidence.)
Q. BY MR. JACOBS: So, as you said, Mr. Braham,
this is a fax cover sheet from Aaron Alter to Jeff
Higgins, you see it's on Wilson, Sonsini letterhead, and
it's going over to Brobeck, and it's dated September 18,
1995. Do you see that?
A. Yes.
Q. And if you look on the third page, you'll see
some of what's called a rider, with some language in it
about -- about bankruptcy in the middle. Do you see
that?
A. Yes.
Q. What was the concern that drove the proposed
inclusion of that language?
A. So, there was a question on the Novell team as
2360
to whether SCO was -- potentially at risk for going
under, going bankrupt or becoming insolvent. And there
is concern, in intellectual property situations, that, in
bankruptcy, contracts can be modified or you really don't
know how they are going to be handled in bankruptcy.
And so, we were concerned that we wanted to
make sure that Novell had the equitable interest in the
SVRX agreements and royalties because under -- my
understanding is that under the Bankruptcy Code, that
would enable us not to be -- enable Novell not to be
adversely affected if SCO did go into bankruptcy and so
that we wouldn't have the unpredictability that can occur
as intellectual property or contracts or agreements find
their way into a company that's in bankruptcy.
Q. So, September 18, 1995. The Asset Purchase
Agreement will be executed on September 19, 1995?
A. Yes.
Q. And the language is going back and forth
between the negotiating teams?
A. Yes.
Q. Y-3. If you look at especially the third page
in on Y-3, Mr. Braham, can you identify what we've got
here? Do you see Shannon Whisenant's name there, on 407?
A. Yes.
Q. And you see that she's faxing to Jeff Higgins?
2361
A. Yes.
Q. And Shannon was on your team and working at
your direction, correct?
A. Yes.
MR. JACOBS: Offer Y-3 into evidence.
MR. SINGER: No objection.
THE COURT: It will be admitted.
(Novell Exhibit Y-3 received in evidence.)
Q. So, actually, let's start on the front page.
And this is a fax from Shannon Whisenant to Burt Levine.
Do you see that?
A. Yes.
Q. Did you know who Burt Levine was?
A. I believe he was a lawyer who worked in the
UNIX business at Novell at this point.
Q. And if you see the city, state, it says Floren
Park, New Jersey?
A. Yes.
Q. Is that consistent with your recollection that
he worked in the UNIX business unit?
A. Yes. That's where the UNIX business was and
remained at Novell.
Q. And then the cover sheet that I was showing you
at 40407, that's from Shannon Whisenant -- I'm not saying
her name right, am I?
2362
A. Whisenant.
Q. Whisenant at Wilson, Sonsini, again, to Jeff
Higgins at Brobeck. Do you see that?
A. Yes.
Q. And then, if you look at the schedules, you'll
see there is a draft dated 9/18/95 of Schedule 1.1(a) and
Schedule 1.1(b).
A. Yes.
Q. Do you see that? And if you look at schedule
1.1(a), and you look at the intellectual property
section, you see intellectual property listed on 1.1(a).
Do you see that? That's 1.1(a) is the included asset
schedule?
A. Yes.
Q. And then if you turn the page over to 1.1(b)
and look at Roman V, you'll see that in intellectual
property, all copyrights are excluded. Do you see that?
A. Yes, I do.
Q. How did it come to be that copyrights were
listed as an excluded asset in the drafts of schedules to
the Asset Purchase Agreement?
A. We proposed it, negotiated for it. It was
agreed upon, and that's how the agreement was executed.
Q. And at whose direction did you implement the
exclusion, on the excluded assets schedule of all
2363
copyrights?
A. At Novell's, but through David Bradford.
Q. And what was the rationale that you understood
for excluding the copyrights?
A. We were protecting Novell's interests. We were
concerned about the copyrights moving over from a
bankruptcy standpoint. We were concerned about the
copyrights moving over because we had a very important
interest in retaining the UNIX business, which is part of
the core economics of the deal. And this was the deal we
negotiated for.
It's not -- when you go through an asset deal,
you negotiate asset-by-asset, and we were unwilling to
transfer the copyrights, and they were willing to acquire
the business without them.
Q. Do you recall any push back from Santa Cruz
during negotiations on this question?
A. I recall some discussion, but I don't -- I
don't actually recall strong push back.
Q. And did you have an understanding of how the
structure of the Asset Purchase Agreement would work if
copyrights were excluded, ownership of copyrights were
excluded as an asset being transferred to Santa Cruz?
How would the deal work? How would -- for example, how
did you understand Santa Cruz would go forth and prosper
2364
in the UnixWare business without copyrights?
A. It had access -- it had physical ownership, in
terms of the actual physical embodiment, of the disketts,
the manuals, the people who understood it, the computers
that had the UnixWare business, the software on it. And,
essentially, it had a license to use that to then build a
new version of UnixWare, and it would own the copyrights
in what it built on top of the base UNIX and UnixWare
software that it had a copy of.
And it would go forth and license that to third
parties, sell it. And because its embodiment, its
improvements on that were its copyrights, they had
complete ability to exploit the business.
Q. And how did that compare with your
understanding of the basic structure of the relationship
with other vendors of UNIX flavors?
A. Well, those other vendors had licenses to UNIX
from -- to their version of UNIX and would build their
own improvements on their versions of UNIX to which they
also had their own copyrights and ownership. Everybody
is -- everybody starts out with a foundation and then
they build their own house on top of it, and they have
the ability, then, to sell that house or exploit that
house as they wish, but -- so, everybody sort of starts
with a basis that they get a license to, and then they go
2365
off and build what is actually theirs on top of it.
Q. I'd like to show you, sir, SCO Exhibit 1.
Actually, at this time, I think I won't. Just to tell
the jury where we're going on this, you weren't involved
in Amendment Number 2, were you, sir?
A. I was not.
Q. So, let's look at A-1, which is the Asset
Purchase Agreement as executed on September 19, 1995.
Would you please look at Section 1.1(a), Purchase And
Sale Of Assets. And do you see there's an explanation
there of what is going to go to seller and what is not --
what is going to go from seller to buyer and what is not?
Do you see that?
A. Yes.
Q. I would like to ask you particularly about the
phrase "notwithstanding the foregoing."
A. So, 1.1(a) lays out a list of assets or
actually refers to the attachment as a list of assets
that are going to be transferred to SCO. 1.1(b) is a
definition of assets that are excluded. Sometimes, in
drafting an agreement, you have provisions which can be
read as inconsistent, or you can have a schedule that
looks like it overlaps with another schedule.
And what you do in drafting, hopefully, is to
clarify that one trumps the other; that, in the event
2366
there is a conflict, one wins, so that people can say,
well, I know -- maybe I'm confused as to what's on
Schedule A, but Schedule B is very clear, and now I need
to know who wins in the event that you have a potential
overlap.
And, "notwithstanding the foregoing," is magic
language, in my view and my understanding, that makes it
clear that 1.1(b) wins over 1.1(a).
I was focused on this language when we were
drafting because I was watching with a keen eye to
protect Novell's interests, and it's very difficult, in
working on a hundred-page agreement, to be absolutely
confident as to how every clause is going to be viewed.
So you set up some rules to order them. And that
"notwithstanding the foregoing" is actually one of the
things that I remember very clearly, 15 years later.
Q. If you turn, then, to Schedule 1.1(b) and you
look at the reference there to intellectual property and
the excluded assets, all copyrights and trademarks, do
you see that? You can follow on the screen. I think it
may be easier.
A. Yes.
Q. Did the Santa Cruz representatives have an
opportunity to review this language before the Asset
Purchase Agreement was signed?
2367
A. Yes, they did.
Q. Was Santa Cruz represented by skilled counsel
in the transaction?
A. They certainly were.
Q. Is there any doubt in your mind that the Santa
Cruz representatives, in looking at this schedule, were
capable of understanding your intent to exclude the UNIX
and UnixWare copyrights existing as of the date of the
Asset Purchase Agreement?
A. No doubt, whatsoever.
MR. JACOBS: Thank you, Mr. Braham.
THE COURT: Mr. Singer.
MR. SINGER: Your Honor, with the Court's
permission, I'll look for an appropriate breaking point
in about ten minutes or so.
THE COURT: Thank you, Mr. Singer.
CROSS EXAMINATION
BY MR. SINGER:
Q. Good afternoon, Mr. Braham. My name is Stuart
Singer. I'm one of the attorneys for the SCO Group.
A. Good afternoon.
Q. Now, have you heard of Amendment Number 2?
A. I have.
Q. You understand that Amendment Number 2 changed
the language in the Schedule of Excluded Assets that you
2368
were discussing with Mr. Jacobs, right?
THE COURT: One second, please.
MR. JACOBS: Your Honor, this is beyond the
scope. I specifically excluded him from any -- he
specifically excluded himself from any involvement of
Amendment Number 2, and now Mr. Singer is just going to
engage in a lawyers' debate about the meaning of
Amendment Number 2.
THE COURT: Well, you asked him about his
involvement with Amendment Number 2, so Mr. Singer must
be permitted to ask some questions about it as well.
MR. JACOBS: If it's about his involvement,
fine. If it's about asking this lawyer to be a legal
interpreter, I think we're beyond the scope of the direct
and wasting time.
THE COURT: Do you intend to ask this lawyer
about his lawyerly opinion on Amendment Number 2?
MR. SINGER: Well, I don't know where this is
going with him, but I intend to elicit the existence of
Amendment Number 2, the role Amendment Number 2 has
versus the others.
THE COURT: Why don't you go ahead, and
Mr. Jacobs can object to specific questions.
Mr. Braham, I'm sure you understand that if
Mr. Jacobs stands up before you have answered the
2369
question, please pause so that I can hear the objection.
THE WITNESS: Okay.
Q. BY MR. SINGER: Mr. Braham, just so we're clear
on what we're talking about, let's put Amendment Number 2
before you, which is part of SCO Exhibit 1. Which is the
last part of that exhibit. You have seen this before,
haven't you?
A. I have.
Q. And you understand that the way an amendment
works -- you were talking a few minutes ago about
something having priority over something else. An
amendment like this has priority over the language which
is replaced, correct?
A. It should be read together, but I'm not sure I
understand priority.
Q. Well, let me be more specific. You understand
that when it says, as it does here in paragraph A, "With
respect to Schedule 1.1(b) of the agreement titled
Excluded Assets, Section 5, Subsection A shall be revised
to read."
When you have a later amendment like that, you
understand that the old language that you were testifying
to on the Excluded Assets Schedule no longer exists, and
this is the new language that that has replaced it,
correct?
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A. Yes.
Q. This is now the operative language, from
October, 1996, forward, that has been put into the
agreement, correct?
A. Yes.
Q. And so, what you were talking about with this
asset schedule that was carefully negotiated, that
excluded copyrights from the deal; one year later, that
exclusion was taken out and replaced with this language?
A. I don't believe that it had the effect of --
Q. I'm not asking you that. I'm asking you: That
language was taken out?
A. The language was taken out and replaced by
this. I assumed that it was properly executed. I
don't -- I didn't -- wasn't participating in it, so I
assume it was properly executed.
Q. I assure you, Mr. Braham, if this wasn't
carefully and properly executed, we would be hearing all
about it from Novell.
A. Okay.
Q. So, assuming that this was properly executed,
you understand that the language that you have been
testifying about earlier, on copyrights being excluded,
was replaced by the language which now appears in
Amendment Number 2?
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A. Yes.
Q. Now, you weren't involved in the drafting of
Amendment Number 2, correct?
A. No.
Q. And you weren't involved in the negotiation of
Amendment Number 2, correct?
A. Correct.
Q. Okay. Now let's turn back to what you were
involved in, which were the issues on the Included Asset
Schedule. Is copyright, sir, a way of indicating
ownership of source code?
A. It's a way of -- it is a -- one of the
intellectual property interests involved in ownership.
It is not the only form of intellectual property interest
in ownership of software or in source code, but it is a
particular -- it is a particular slice of intellectual
property interests that relate to a software or source
code.
Q. So there may be other forms of ownership, like
owning the tangible media. That's one form of ownership,
correct?
A. Yes. That's ownership of the tangible media,
correct.
Q. And another type of ownership is the ownership
of the copyright in that source code?
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A. Correct.
Q. Correct? Okay. Now let's look at what was the
Included Asset Schedule in the agreement you negotiated,
Schedule 1.1(a). And let's take a look at it together.
And if Mr. Calvin highlights that first paragraph, I
think you will be able to read even more clearly.
You understood that, in the agreement you
negotiated, these were the assets being sold to Santa
Cruz, correct?
A. Yes.
Q. And that says: "All rights in ownership of
UNIX and UnixWare, including but not limited to all
versions of UNIX and UnixWare."
And let's pause there. This included all
versions of both UNIX and UnixWare, correct?
A. Yes, but the --
Q. Well.
A. Yes, but you have to read this in connection
with the specific paragraph on intellectual property.
So --
Q. We're going to get to that. You have -- each
of these paragraphs, sir, is cumulative. In other words,
if you sell Santa Cruz an asset in paragraph 1 of the
list of included assets, you don't have to repeat that
in, say, paragraph 5, right?
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A. Sometimes you have more specific clauses that
could be a subset of a more general clause, and the
specific clause is what lawyers typically look to, to
deal with those specific items so --
Q. Well, my question --
A. -- you said you don't have to, but it is the
practice, in drafting contracts, to sometimes have
broader sets and narrower sets, and sometimes they
overlap.
Q. If something is transferred on a list of assets
that I'm buying on one paragraph, and we're still on
another paragraph of the list of assets I'm buying, if
something isn't listed in that paragraph, are you saying
that somehow it means that it wasn't included in the
first paragraph?
A. I'm confused.
Q. Okay. That wasn't a very good question. So
let's look at what this actually says: "All rights in
ownership of UNIX and UnixWare, including but not limited
to all versions of UNIX and UnixWare.".
And if you go down -- and I'm going to skip
over some of this that the jury has seen before, and it
says: "Including source code."
Do you see that? Correct?
A. Yes.
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Q. So one of the included assets, when you just
look at the schedule of assets being sold, are all rights
of UNIX and UnixWare, including, but not limited to, all
versions UnixWare, including source code.
Do you see that?
A. Yes.
Q. And then, Mr. Braham, if we go down to the list
of products right before that.
Mr. Calvin, if you could blowup the last part
of paragraph 1.
At the end there it says: "Such assets to
include, without limitation."
Now, "without limitation" is also a term of art
in your field, right?
A. Yes.
Q. Can you tell the jury what it means?
A. If you are making a list of something under a
general statement, then the list doesn't -- if there's
something that's not on the list, it doesn't necessarily
mean that it's not included. So, it enables you to talk
about something and give examples but not necessarily
give every single example, so your list is representative
but not necessarily complete. It may be complete. It
may not be. But the -- what you're saying is that, by
virtue of making the list, you're not necessarily making
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it complete.
Q. Right. It includes the assets, without
limitation, meaning at least the following, but there may
be more. Correct?
A. Yes.
Q. Now, if we look at what is then following that
paragraph, you have a list of UNIX source code products,
correct?
A. Yes.
Q. And those are both UnixWare 2.0 and products
listed as prior products on such schedule. Do you see
that?
A. Yes.
Q. And you have the UNIX products, which are
listed then below that, which are products that are
called UNIX System V Release 4, 1/ES, and prior products
to that, UNIX SVR 4, 4.0 MP, and prior products to that,
correct?
A. Yes.
Q. So all rights total -- so all rights in
interest, all rights in ownership, to use your language,
of UNIX and UnixWare, in these products, and/or prior
products, were being transmitted in the Schedule of
Included Assets, right?
A. I believe the intellectual property clause has
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to be read with this. So, you're saying all rights in
ownership. Copyrights are part of rights in ownership,
but copyrights and IP is dealt with specifically under
the IP section. So, in the absence of that section being
there, I would agree with you, but, because that section
is there, that specifically deals with the issue of
intellectual property, I believe this relates to the
physical manifestations of the source code. It's not --
it's not as comprehensive as you say.
Q. So you're saying, when you said all rights in
ownership of UNIX and UnixWare, that doesn't include the
rights you get by copyright. That is what you're saying?
A. Because of how we drafted the intellectual
property section, that's correct.
MR. SINGER: I think we'll pick up with this
tomorrow if it's all right with the Court, Your Honor.
THE COURT: All right. Ladies and gentlemen,
we will recess for the afternoon, and we will continue
tomorrow at 8:30.
(Jury leaves the courtroom.)
Mr. Braham, do you pronounce your last name
Braham or Braham?
THE WITNESS: Braham like "graham" only with a
B.
THE COURT: All right. Thank you. I think we
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all ought to be somewhat consistent with the names.
Is there anything, counsel, before we recess?
MR. SINGER: Not from us, Your Honor.
MR. BRENNAN: Your Honor, we just have a brief
matter.
THE COURT: Go ahead.
MR. JACOBS: Maybe we could let Mr. Braham step
out.
THE COURT: Mr. Braham, if you would just
please excuse yourself to the hallway.
MR. BRENNAN: Your Honor, this is a matter that
we would solicit your assistance in. The practice and
understanding, I think express agreement between counsel
for the respective parties has been to notify one another
the day prior as to who the expected witnesses would be.
We received a request from SCO's counsel as to who we
would call tomorrow, the last day of evidence, and we
informed SCO's counsel that we expected, if Mr. Braham
didn't finish, we would conclude with him, and we
expected to call Terry Musika, who is the expert witness
and, with time, David Bradford.
We, in turn, since tomorrow is the last day,
asked for SCO's counsel to identify to us who they
expected to call, recognizing there's not a lot of time
and that we were keeping track, and the response was to
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give us a list of seven different individuals. And, Your
Honor that really just isn't very helpful. I don't think
it's consonant with the spirit of what we were going to
do.
I hate to end trial with this sort of
disagreement. We've been very clear about who we were
going to be presenting, and, just in short, Dr. Musika or
Mr. Musika has been deposed. They know what his opinions
are. There is no surprise there. They certainly know
who David Bradford is. The question, Your Honor, is if
we could get, frankly, a more specific indication, if
there is any time, and I'm not confident there will be,
but who, in fact, they would expect to call. And we
would be able to prepare.
THE COURT: Mr. Singer?
MR. SINGER: Yes, Your Honor. They have a
number of witnesses who haven't yet testified, and I will
mention the list and why we are where we are with it. We
intend to call rebuttal witnesses to be extremely
focused, as we think the purpose of rebuttal testimony
is.
THE COURT: I'm sure that's true. 1:30 is the
witching hour, you understand, Mr. Singer?
MR. SINGER: We understand that. We are going
to have to be very careful how we allocate that time.
2379
There have been witnesses who have testified, where we
would intend to call Mr. Frankenberg and Mr. Thompson.
If Mr. Bradford testifies, and it still sounds equivocal,
Mr. Johnson, Lee Johnson, would be a likely rebuttal
witness to it. We don't know for sure whether
Mr. Bradford is going to testify, and Mr. Mattingly falls
in that same category. We listed Ms. Botosan as a
potential rebuttal witness because we haven't gotten,
yet, to the direct testimony of Mr. Musika.
THE COURT: You do know what his report says.
MR. SINGER: If his report comes in as
anticipated, we believe Ms. Botosan would have a short
rebuttal testimony. The other two witnesses listed, in
an abundance of caution, Ryan Tibbitts and Chris Sontag,
I think those are less likely to be needed, and it would
only have to be if something unanticipated happened, and
these witnesses will remain to be called.
THE COURT: It doesn't help a lot,
Mr. Brennan.
MR. BRENNAN: It, frankly, doesn't. I think,
as a practical matter, given the course of where we're
headed, there will be very limited time, and to, again,
be given a list of seven people, I don't think is --
THE COURT: I do understand what you're saying,
but I don't know what more I can force out of him.
2380
MR. BRENNAN: I'm not asking you to force. I'm
just asking you to encourage cooperation.
MR. SINGER: I can help a little bit. Unless
there is something really unforeseen tomorrow -- and if
it happened, we would raise it as briefly as possible --
we don't anticipate calling Mr. Sontag and Mr. Tibbitts.
I thought those were more safety valves if something came
up we weren't expecting.
THE COURT: To that end, then, in order to
reinforce this a bit more, the Court would not allow you
to recall them unless you could make a very convincing
argument they are necessary. Do you understand?
MR. SINGER: I understand, Your Honor.
THE COURT: Clear and convincing argument.
MR. SINGER: Excuse me, Your Honor?
THE COURT: Clear and convincing argument.
MR. SINGER: Clear and convincing argument. We
will be especially careful before going there. On the
other hand, the other witnesses, I think, are ones which
should be anticipated, at least depending on our time.
And it would be very focused testimony. Obviously
Ms. Botosan would be in relationship to what Mr. Musika
says, and the others depend a great deal on what
Mr. Bradford says on the stand and relate also to what
Mr. Tolonen said.
2381
THE COURT: In the spirit of cooperation, if,
by chance, you decide not to call Mr. Bradford, I think
it would be helpful if you communicate that so that
witnesses will not be kept on call that will not be
called.
MR. BRENNAN: We certainly will do that. And I
can at least make this -- I will do exactly as the Court
has instructed.
THE COURT: And you, too, Mr. Singer. If you
decide there are any witnesses of those remaining five
you clearly will not call, I think you should communicate
that immediately to Mr. Brennan.
MR. SINGER: We will do so. Will we know, say,
before the end of the day today about Mr. Bradford?
MR. BRENNAN: Your Honor, so we are precise, I
think this is going to be a function solely of the clock.
That's going to be the determining factor, how much time
is still consumed on our behalf with Mr. Braham, how much
is spent with Mr. Musika, and then that will be the
driving factor.
THE COURT: Okay. I think we all understand
each other. All right then
MR. BRENNAN: Thank you, Your Honor.
MR. SINGER: Yes.
THE COURT: Is there anything else?
2382
MR. BRENNAN: No, that's fine, Your Honor.
THE COURT: All right. We'll be in recess.
Counsel, there are no hearings, if that makes any
difference.
(Whereupon the proceedings were concluded for the day.)
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