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Novell Responds to SCO's Objections to its Bill of Costs
Wednesday, September 08 2010 @ 10:55 AM EDT

Novell has responded to SCO's Objections to Novell's Bill of Costs for the two trials. Novell did not fail to notice and point out to the court SCO's cheeky move, asking that the court deny the entire bill, when some of it was costs from the first Utah trial that had already been authorized by the court:
SCO objects to $2,914.74 in costs for folders and binders, which were part of the copy costs. Rather than further dispute entitlement to such costs, Novell withdraws its request for them. However, SCO's assertion that because Novell failed to disaggregate these costs, the Court should "deny Novell's Bill of Costs in its entirety," is absurd. (Objections to Bill of Costs at 7.) Novell's Bill of Costs contains several entries that are not even addressed in SCO's Objections, not the least of which is $99,639.09 in costs that were previously awarded by the Court following the initial bench trial and simply have never been paid by SCO.
After the first trial, SCO objected to Novell's Bill of Costs, got it reduced, and then, despite the court ordering SCO to pay it, never did so. Now they ask that the court toss the bill overboard. Like I say, cheeky. I'm a little shocked that SCO's Chapter 11 Trustee Edward Cahn would allow such a request. SCO seems to show no sense of honor at all about its debts.

Here's the filing:

09/07/2010 - 891 - RESPONSE re 890 Objections, to Bill of Costs filed by Counter Claimant Novell, Inc., Defendant Novell, Inc.. (Brennan, Sterling) (Entered: 09/07/2010)

Novell has also withdrawn its request for $21,036 in mock trial graphics costs "but respectfully requests that the Court reject the remainder of SCO's challenges to Novell's request for costs."

But it points out to the court another slippery move by SCO:

1. Trial technician fees. SCO challenges Novell's request for trial presenter fees and graphics presentation costs, arguing that these costs are not authorized by the statute, were not reasonably necessary, are unreasonably high, and were not approved by the Court before being incurred. (Objections to Bill of Costs at 3.)

As a preliminary matter, SCO misleadingly merges trial presenter fees and graphics fees into a heading of its own creation, "Professional Services Costs," so that its citation of Pehr v. Rubbermaid, Inc., 196 F.R.D. 404, 408 (D. Kansas), addressing "professional services rendered," appears on-point. (Id.) But, Pehr involved an attempt to recover costs for prior art searches. The costs that are at issue here are properly classified as exemplification services, which are explicitly authorized by statute and interpreting case law as recoverable. See 28 U.S.C. Section 1920(4) (allowing recovery of costs for exemplification); Battenfeld of Am. Holding Co. v. Baird, Kurtz & Dobson, 196 F.R.D. 613, 616 n.4 (D. Kan. 2000) ("'Exemplification' has been interpreted to embrace all manner of demonstrative exhibits, including ... graphic aids.").

Both parties used trial technicians in this case (SCO, a Mr. Michael Calvin; and Novell, a Mr. Thomas Lee), making it odd and surprising for SCO to protest that such services are unnecessary. In a complicated case such as this one, with 11 witnesses presented via deposition testimony and roughly 170 exhibits introduced to the jury, a trial presenter or trial technician is particularly necessary to efficiently present the voluminous information to the jury..."

I am very glad to see Novell spelling out each and every underhanded trick, frankly, so there is a public record of how Boies Schiller has represented SCO. Sterling Brennan for Novell doesn't mind a bit taking the time to check the case law, so he catches them all, and Boies Schiller's style really does depend on the other side not bothering. Mr. Brennan bothers. Some lawyers are really good at details, and some are good at taking complex facts and telling them as a simple story, and Mr. Brennan is exceptional at both. No doubt that is part of why Novell prevailed, the other part being that Novell deserved to win.

Do you remember SCO objected to the copying costs too? Novell answers:

Novell's Bill of Costs indicates that the documents at issue were copied and bound for use at trial. As the Court is aware, this case has been pending for more than six years and the litigation has generated a large amount of documents. With only a single exception, all of the copies for which Novell seeks recovery were made during the two weeks preceding the trial or during the trial itself. Thus, these copies were made as the parties were heavily involved in final trial preparation and trial.
As for SCO's objection that there is insufficient documentation on the in-house copy costs, Novell points out that a "party is not required to submit a bill of costs containing a description so detailed as to make it impossible to economically recover photocopying costs, rather they are required to provide the best breakdown obtainable from retained records." Merryman Excavation v. Int'l Union of Operating Eng. , 2010 U.S. Dist. LEXIS 3003, at *6-7 (N.D. Ill. Jan. 4, 2010) (internal citations and quotations omitted) (emphasis added).

In support of its copying costs, Novell provided the retained records generated by Workman Nydegger's and Morrison & Foerster's in-house tracking reports for their respective copying systems. Novell also described in its Verified Memorandum how these costs were tracked by each firm. Of course SCO knows, as Novell goes on to detail, that the costs were for a very complex litigation, with summary judgment motions, that went on ... well, it felt like forever, didn't it? So why does it raise such objections? I can't read their minds, but since they have to know they were largely nonsense, or worse, I've come to the conclusion personally that it's just how they cynically roll. But they are doing it in public, and that record will be out there forever.

So will the loss they sustained, despite every twist and turn. And Novell did it without any sleight of hand. So you see, class, despite what some of you were thinking, it pays to be honorable in a court of law.


Novell Responds to SCO's Objections to its Bill of Costs | 200 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Thread
Authored by: bugstomper on Wednesday, September 08 2010 @ 11:26 AM EDT
Corrections, if any, go here. Please place a summary of the error->correction
or s/error/correction/ in the Title box to make it easy to see what corrections
have already been submitted

[ Reply to This | # ]

Novell Responds to SCO's Objections to its Bill of Costs
Authored by: Thalaska on Wednesday, September 08 2010 @ 11:28 AM EDT
Off Topic here

[ Reply to This | # ]

News Picks Thread
Authored by: bugstomper on Wednesday, September 08 2010 @ 11:30 AM EDT
Pick your News here. Please put the title of the New Picks article you are
commenting on in the Title box. Include a clicky link (use HTML Formatted Post
Mode) in your comment for when the article has scrolled off the News Picks

[ Reply to This | # ]

Off Topic threads
Authored by: bugstomper on Wednesday, September 08 2010 @ 11:33 AM EDT
Please be off topic here. For example here you can post a thread about how the
canonical threads really have to have the canonical titles or else how will
anyone find them. Or post a comment about whether Groklaw would look better in
purple or paisley. Feel free to freely use HTML clicky links so your links are

[ Reply to This | # ]

COMES goes here
Authored by: bugstomper on Wednesday, September 08 2010 @ 11:35 AM EDT
Please submit your Comes transcriptions here. Use HTML markup but post as Plain
Old Text to make it easy for PJ to copy and paste your submission.

[ Reply to This | # ]

Novell Responds to SCO's Objections to its Bill of Costs
Authored by: jvillain on Wednesday, September 08 2010 @ 12:28 PM EDT
It would be stupid, pointless, counter productive, a waste of the courts time
and a complete waste of money. So I have to ask can SCO appeal the decision on
these expenses up to the next highest court?

[ Reply to This | # ]

Novell Responds to SCO's Objections to its Bill of Costs
Authored by: jmc on Wednesday, September 08 2010 @ 01:37 PM EDT

So you see, class, despite what some of you were thinking, it pays to be honorable in a court of law.

Sorry to sound so stupid here, but please can you point out where in this sorry saga it has paid anyone to be so and not paid everyone from SCO and BS&F down (right right down) to MOG?

[ Reply to This | # ]

Novell Responds to SCO's Objections to its Bill of Costs
Authored by: Anonymous on Wednesday, September 08 2010 @ 02:19 PM EDT
"I'm a little shocked that SCO's Chapter 11 Trustee Edward Cahn would allow
such a request."

Cahn is no spring chicken and, unless he discovers a cure for cancer or ends all
world conflicts in the future, odds are whatever SCO does on his watch will end
up being the one single thing he is most remembered for.

[ Reply to This | # ]

When you are full of [redacted]
Authored by: SpaceLifeForm on Wednesday, September 08 2010 @ 02:31 PM EDT
You will argue anything and attack anything.


You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

A Question On "Duelling Motions"
Authored by: sproggit on Wednesday, September 08 2010 @ 03:36 PM EDT
One of the things that PJ drew to our attention during the trial was the
courteous and professional manner in which opposing counsel conducted themselves
before the Court. Indeed, in his concluding remarks, Judge Stewart observed that
he had felt that their work was "some of the finest lawyering" that he
had observed.

PJ has also explained that, lawyers are effectively "Officers of the
Court", with their primary duty to uphold the principles of the Court.

I mention the above because in the "back and forth" between Novell and
SCO with respect to trial expenses, we are witnessing yet more examples of
either "failure to discuss" in the least significant cases, or
"gaming of the system" in the more extreme.

We also witness the fact that SCO - currently helmed by a former Judge acting as
Trustee, no less - continues to withhold payments from the original trial that
SCO has been ordered to pay.

This brings me to several questions:-

1. Would there have been a "counsel to counsel" discussion, before the
submission of the expenses, wherein Novell's representatives explain their
proposed charges and tries to reach agreement with SCO's side first? Do we just
safely assume that this was attempted but failed?

2. On the subject of SCO's outstanding refusal to pay ordered costs from the
original trial, at what point in time can someone be sanctioned for
"Contempt of Court"? OK, I've seen enough TV to have heard the phrase,
but is this what attracts a contempt ruling? If not, can anyone explain how this
farce [expenses only] is likely to play out? Will SCO just string this along
until they are completely bankrupt and then vanish in a puff of smoke?

3. Why is it that no-one is calling Judge Cahn to account for the fact that he
is so willing to pay Bank Rome and other SCO-appointed law firms, but so
reluctant to pay Novell's? I may be answering my own question here, but is the
individual with the authority to do that Judge Gross?

4. Just out of curiosity, do any of those owed money by SCO have the right to
petition Judge Gross to require that SCO re-state who they owe monies to, and
what amounts, on a regular basis? In the context of showing how they are making
good on the debts that they owe? Yes, I appreciate that the entire point of
remaining in Chapter 11 is protection from demands of creditors and that this
means that they have no obligations to repay whilst they remain protected, but
Chapter 11 protection was never meant to have an indefinite lifespan.

5. Off Topic in that this question is nothing to do with the trial expenses, but
why is noone asking Judge Gross why he has failed to require SCO to deliver [and
then act upon] a complete reorganisation plan? Could it be - perish the thought
- that with the reduced "executive management" costs they are trading
neutral or slightly in profit? Could it be that a few minor tweaks and the
retention of whatever clients (McDonalds? BMW?) that they retain might be enough
for them to pay back what they owe over the next few years?

[ Reply to This | # ]

Maybe PJ can't but I Cahn
Authored by: overshoot on Wednesday, September 08 2010 @ 08:15 PM EDT
I'm a little shocked that SCO's Chapter 11 Trustee Edward Cahn would allow such a request.
No harm in trying. After all, it's his responsibility to preserve as much of the estate as possible from the creditors.

Any money disbursed to Novell is money that's no longer available for trustee's fees, remember.

[ Reply to This | # ]

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