Here's the Declaration of Edward Normand [PDF], as text. Thanks go to fudisbad for transcribing it for us. Mr. Normand offers his Declaration in support of SCO's 56(f) motion [PDF; text], and Mr. Normand's job is to present to the court the discovery that SCO feels it still needs to do and why it hasn't so far been able to do it. We've heard that song before, of course, and so has the judge, but he comes up with new reasons why SCO, once again, needs a delay before the court decides IBM's motion for partial summary judgment on the contract claims.
For one thing, SCO would like to depose the small army of declarants who supported IBM's position on the interpretation of the license, hoping to get some more names of further witnesses to testify on the matter. They have certain facts, they say, they'd like to use to confront IBM's declarants. SCO realizes they already deposed Otis Wilson and David Frasure, but they didn't realize they had the earlier BSDi depositions of Wilson and Frasure until after the deposition, and they'd like to have at it again.
It seems IBM is no longer answering SCO's love letters demanding that they produce everything and then the kitchen sink, so they'd like the court to order the kitchen sink turned over, so SCO will know all declarations and affidavits IBM has. They suspect IBM is only revealing the ones that help them. Heavens. I'm sure *that* never happens in litigation.
SCO reveals that Novell gave them some documents from the BSDi litigation and offered to let SCO inspect documents related to license agreements on November 19. SCO thinks it can cook up some issues from that as well.
As for Novell's waiver of SCO's IP rights, SCO has submitted some declarations, like Ed Chatlos's, which SCO characterizes as stating that the parties never intended Novell to have such rights. They continue to refer to him in the category of "chief negotiators," despite Mr. Chatlos not being involved in the entire negotiation process. SCO would like to take further depositions of other parties to the negotiations.
Finally, SCO would like to depose the folks at IBM who got all the evidence of SCO's continuing distribution of Linux and try to prove that IBM hacked SCO's password-protected website. Good luck with that. They think that is the only evidence IBM has of continued distribution.
Translation by PJ: they know they are likely to lose as things now stand, and they need to beat the bushes to find better declarations than what they have submitted so far, to which I would say a hearty Amen. Whether the court enjoys eternal litigation as much as SCO seems to, well, we'll just have to wait and see. Meanwhile, this motion will inevitably lead to some delay, if only because of when it was filed. Delay is SCO's middle name in this litigation, and here they go again.
Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[address, phone, fax]
Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
Sean Eskovitz (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER
[address, phone, fax]
Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]
Attorneys for Plaintiff
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
THE SCO GROUP,
Case No. 2:03CV0294DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells
DECLARATION OF EDWARD NORMAND
am a member of the law firm of Boies, Schiller & Flexner LLP,
counsel for Plaintiff The SCO Group, Inc. ("SCO") in the
above-captioned matter. Unless otherwise indicated, I make this
declaration based upon personal knowledge.
submit this Declaration in support of SCO's Memorandum in Opposition
to Defendant/Counterclaim-Plaintiff IBM's Motion for Summary
Judgment on SCO's Contract Claims, dated November 30, 2004.
explain below that SCO has been unable to make full discovery in
this matter and why IBM's motion is therefore premature under
Federal Rule of Civil Procedure 56(f). I explain the discovery that
SCO reasonably believes will further enable it to justify its
opposition to IBM's Motion for Summary Judgment.
has previously explained in detail for this Court and for the
Magistrate Court why SCO has been unable to date to take (among
substantial other discovery) the discovery I address below. In an
effort to avoid redundancy, I adopt those prior submissions and
arguments by reference, specifically including the memoranda,
affidavits, and argument concerning SCO's opposition to IBM's motion
for summary judgment on its Tenth Counterclaim, SCO's 56(f) motion
concerning the same, and SCO's motion to enforce the scheduling
order, which were all submitted to this Court, as well as the
submissions concerning SCO's memorandum regarding discovery and
renewed motion to compel, the discovery motions currently pending
before Magistrate Judge Wells.
has deposed only some of the witnesses on whose declarations IBM
relies to argue its narrow interpretation of the license software
agreements is correct as a matter of law. The declarations of IBM's
key declarants - including Otis Wilson, David Frasure, Geoff Green,
Ira Kisterberg, and David Rodgers - have been contradicted by their
own testimony in this case as well as by the declarations SCO has
provided from Martin Pfeffer, Burt Levine, Mitzi Bond, and Evelyn
Davis. In addition, the sworn deposition testimony of Mr. Wilson and
Mr. Rodgers in previous litigation flatly contradicts their
declarations for IBM in this case. Based on these inconsistencies
and contradictions in IBM's evidence, SCO reasonably believes that
it will obtain from remaining depositions additional evidence to
oppose IBM's motion.
also reasonably expects to obtain from remaining depositions the
names of other witnesses, particularly members of the UNIX
intellectual property licensing group, who can testify to their
understanding of the scope of the use and disclosure restrictions in
the software license agreements and the basis for their
7. SCO has intended to and believes
it is entitled to confront IBM's declarants with the facts
discovered from AIX programmers who, because they had access to the
UNIX source code, were in a position to implement and potentially
circumvent the restrictions on licensees in the software agreements
March and April 2004, IBM produced approximately 670,000 pages of
documents to SCO. IBM thereafter noticed the depositions of Otis
Wilson and David Frasure. Only after the depositions had been taken
(over SCO's objection to their premature timing) did SCO discover
that IBM's production of documents included the deposition
transcripts of Mr. Wilson's and Mr. Frasure's flatly contradictory
sworn testimony in prior litigation. SCO reasonably believes that
the more efficient and fair way to have proceeded in the first
instance would have been to permit SCO to receive and process the
information relevant to the testimony of those witnesses before
has learned that IBM obtained a declaration from Martin Pfeffer
which IBM did not disclose with its other declarations supporting
its Motion for Summary Judgment. In response, in a letter dated
October 28, 2004, SCO asked IBM to disclose all declarations,
witness statements, and affidavits in its possession, custody, or
control concerning any subject matters covered by the declarations
that IBM had selectively disclosed. IBM not only has declined to
produce any such material, but has not even responded to SCO's
letter requesting it. In light of Mr. Pfeffer's most recent
testimony, which contravenes IBM's narrow interpretation of the
restrictions in the software agreements, and in light of IBM's
failure to disclose his declaration, SCO reasonably believes that
the declaration Mr. Pfeffer gave to IBM, and any other declarations
that IBM declined to produce, would further raise issues of material
fact precluding summary judgment.
October 8, 2004, SCO subpoenaed Novell, Inc. and Paul, Hastings,
Janofsky & Walker LLP (Novell's counsel in the litigation in
which Otis Wilson and David Frasure gave their contradictory
testimony) for the production of documents related to the BSD
litigation and the software license agreements. On November 11,
Novell, responding for both parties, delivered to SCO only documents
concerning the BSD litigation. On November 15, Novell informed SCO's
counsel that documents related to the license agreements would be
available for inspection in Provo, Utah, on Friday, November 19,
just four days before SCO's November 23 deadline to file its
opposition to summary judgment. Based on the declarations SCO will
submit with its opposition, as well as the contradictory testimony
of IBM's declarants regarding the meaning of the license agreements,
SCO reasonably believes that the documents that Novell has only
recently produced will bring to light evidence giving rise to issues
precluding summary judgment.
respect to IBM's claim that Novell has waived SCO's intellectual
property rights, SCO has submitted declarations from the chief
negotiators of the 1995 Asset Purchase Agreement ("APA') and
the 1996 amendment thereto (Ed Chatlos, Jim Wilt, and Steve
Sabbath), who state therein that the parties never intended for
Novell to have the right to waive, or to direct or require SCO to
waive, any of SCO's intellectual property protections under the SVRX
licenses. Based on these declarations, as well SCO's reading of the
APA under settled principles of contract construction, SCO intends
to take the depositions of other participants in the negotiations
and reasonably expects that the testimony of the other participants
will be consistent with the declarations by the chief negotiators.
respect to IBM's claim that SCO has waived its own rights, SCO
intends to take depositions of, among others, the IBM employees
responsible for accessing SCO's password-protected website - the
sole ground for IBM's contention that SCO has made certain source
code impermissibly available. SCO reasonably expects that such
testimony will confirm that the evidence that SCO has submitted
showing that IBM obtained access to that code only by improperly
by-passing SCO's log-in procedure and hacking onto SCO's website.
November 30, 2004
I declare under penalty of
perjury that the foregoing is true and correct.
CERTIFICATE OF SERVICE
Plaintiff, The SCO Group, Inc. hereby
certifies that a true and correct copy of
DECLARATION OF EDWARD
NORMAND was served on Defendant International Business
Corporation on this 30th day of November, by depositing it
in U.S. Mail, first class,
postage prepaid, to their counsel of
record as indicated below:
Evan R. Chesler, Esq.
Cravath, Swaine & Moore LLP
Donald J. Rosenberg, Esq.
Alan L. Sullivan, Esq.
Todd M. Shaughnessy, Esq.
Snell & Wilmer L.L.P.
Attorneys for Defendant/Counterclaim Plaintiff IBM Corp.