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Declaration of Edward Normand - as text
Saturday, December 04 2004 @ 04:55 AM EST

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)
[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)
[address, phone, fax]

Attorneys for Plaintiff







Case No. 2:03CV0294DAK

Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells


1. I 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.

2. I 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.

3. I 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.

4. SCO 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.

5. SCO 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.

6. SCO 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 understanding.

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 at issue.

8. In 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 their depositions.

9. SCO 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.

10. On 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.

11. With 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.

12. With 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.

Edward Normand


Plaintiff, The SCO Group, Inc. hereby certifies that a true and correct copy of
DECLARATION OF EDWARD NORMAND was served on Defendant International Business
Machines 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.


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