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IBM's Reply Memo re Motion to Strike Materials -- as text
Monday, December 13 2004 @ 03:23 AM EST

Here is IBM's Reply Memorandum in Support of Motion to Strike Materials Submitted by SCO in Opposition to IBM's Cross-Motion for Partial Summary Judgment, thanks to brooker, Nick Barnes and David Truog, who transcribed it for us. The context is IBM requests that the Court strike the materials submitted by SCO in opposition to IBM's cross-motion for partial summary judgment, as well as the Supplemental Declarations submitted by Sandeep Gupta, John Harrop, and Chris Sontag, and not consider them in ruling on IBM's Cross-Motion for Partial Summary Judgment on its Tenth Counterclaim, the one about noninfringement.

Here, IBM aces SCO again and again, like Serena Williams on a really good day. First, they point out that SCO admits that none of the three declarants, Chris Sontag, Sandeep Gupta, or John Harrop, are providing testimony that goes to the merits of IBM's motion. Therefore, the judge should ignore what they say when deciding the motion. Next, IBM says that for all the reasons they gave in their opening brief the declarations are inadmissable even with respects to SCO's 56(f) application.

That is the long way of saying that the declarations are good for nothing. I enjoyed reading this reply memorandum tremendously, for reasons that are a bit complicated to explain, but I'll try, if you'll bear with me.

IBM uses SCO's own words to put them away. In footnote 2, for example, they point out that by SCO's saying that Gupta's declaration "was not to show IBM's copyright infringement of SCO's protected UNIX code", they are saying that it wasn't offered to rebut IBM's position that there is no genuine issue of material fact that IBM's Linux activities do not infringe SCO's alleged copyrights. Hence, they point out, SCO was wrong when it argued, in its Opposition to IBM's Cross-Motion for Partial Summary Judgment, that Gupta's declaration presents facts that "show copying of material from UNIX into Linux" and "are themselves sufficient to create genuine issues of material fact."

Next, IBM makes fun of SCO's trio pretending to have personal knowledge because they "describe facts which they observed during their education, their careers or the conduct of this case." In two cases, that personal knowledge is derived from reading documents obtained during discovery, which is, as IBM puts it with their usual reserve, incredible.

To be a witness, normally you need to know something because you saw it, heard it, or perceived it in some direct way. You were there when it happened, whatever "it" is, and so you can tell the court what the facts are. A witness testifies to what he or she perceived, experienced, etc. You don't pick up a newspaper and then become qualified as a witness who can testify to the facts in the articles, because of what you read. You had to actually be at the event the article describes, not just read about it. Here are the Federal Rules of Evidence. IBM cites Rule 701, but let's look first at Rule 602:

"Rule 602. Lack of Personal Knowledge

"A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses."

This is just saying that if you tell me what just happened to you in a car accident, let's say, I can't testify as to what happened in the accident, because I wasn't there. You can, because you were. I also can't testify if I read about it in the papers, or even if I read discovery documents in your litigation, because I still wasn't there. Here are Rules 701 and 702, but 701 is what applies here, because SCO has said they are not using their declarants as experts, and if you read the requirements in 702, you may discern why:

"Rule 701. Opinion Testimony by Lay Witnesses

"If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

"Rule 702. Testimony by Experts

"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case."

You'll probably also find some interesting info if you click on the "Notes" link, under Rule 701, because it talks about Rule 701 being amended to "eliminate the risk that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing". Ah, so tricky litigants have been known to do that, eh? Here's what it says:

"The rule retains the traditional objective of putting the trier of fact in possession of an accurate reproduction of the event.

"Limitation (a) is the familiar requirement of firsthand knowledge or observation.

"Limitation (b) is phrased in terms of requiring testimony to be helpful in resolving issues. Witnesses often find difficulty in expressing themselves in language which is not that of an opinion or conclusion. While the courts have made concessions in certain recurring situations, necessity as a standard for permitting opinions and conclusions has proved too elusive and too unadaptable to particular situations for purposes of satisfactory judicial administration. . . . Moreover, the practical impossibility of determinating by rule what is a 'fact,' demonstrated by a century of litigation of the question of what is a fact for purposes of pleading under the Field Code, extends into evidence also. . . . The rule assumes that the natural characteristics of the adversary system will generally lead to an acceptable result, since the detailed account carries more conviction than the broad assertion, and a lawyer can be expected to display his witness to the best advantage. If he fails to do so, cross-examination and argument will point up the weakness. . . . If, despite these considerations, attempts are made to introduce meaningless assertions which amount to little more than choosing up sides, exclusion for lack of helpfulness is called for by the rule. . . .

"Committee Notes on Rules - 2000 Amendment "Rule 701 has been amended to eliminate the risk that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing. Under the amendment, a witness' testimony must be scrutinized under the rules regulating expert opinion to the extent that the witness is providing testimony based on scientific, technical, or other specialized knowledge within the scope of Rule 702. . . . By channeling testimony that is actually expert testimony to Rule 702, the amendment also ensures that a party will not evade the expert witness disclosure requirements set forth in Fed.R.Civ.P. 26 and Fed.R.Crim.P. 16 by simply calling an expert witness in the guise of a layperson. See Joseph, Emerging Expert Issues Under the 1993 Disclosure Amendments to the Federal Rules of Civil Procedure, 164 F.R.D. 97, 108 (1996) (noting that 'there is no good reason to allow what is essentially surprise expert testimony,' and that 'the Court should be vigilant to preclude manipulative conduct designed to thwart the expert disclosure and discovery process'). See also United States v. Figueroa-Lopez, 125 F.3d 1241, 1246 (9th Cir. 1997) (law enforcement agents testifying that the defendant's conduct was consistent with that of a drug trafficker could not testify as lay witnesses; to permit such testimony under Rule 701 'subverts the requirements of Federal Rule of Criminal Procedure 16(a)(1)(E)'). . . .

"For example, most courts have permitted the owner or officer of a business to testify to the value or projected profits of the business, without the necessity of qualifying the witness as an accountant, appraiser, or similar expert. See, e.g., Lightning Lube, Inc. v. Witco Corp. 4 F.3d 1153 (3d Cir. 1993) (no abuse of discretion in permitting the plaintiff's owner to give lay opinion testimony as to damages, as it was based on his knowledge and participation in the day-to-day affairs of the business). Such opinion testimony is admitted not because of experience, training or specialized knowledge within the realm of an expert, but because of the particularized knowledge that the witness has by virtue of his or her position in the business. The amendment does not purport to change this analysis. Similarly, courts have permitted lay witnesses to testify that a substance appeared to be a narcotic, so long as a foundation of familiarity with the substance is established. See, e.g., United States v. Westbrook, 896 F.2d 330 (8th Cir. 1990) (two lay witnesses who were heavy amphetamine users were properly permitted to testify that a substance was amphetamine; but it was error to permit another witness to make such an identification where she had no experience with amphetamines). Such testimony is not based on specialized knowledge within the scope of Rule 702, but rather is based upon a layperson's personal knowledge. If, however, that witness were to describe how a narcotic was manufactured, or to describe the intricate workings of a narcotic distribution network, then the witness would have to qualify as an expert under Rule 702. . . .

"The amendment incorporates the distinctions set forth in State v. Brown, 836 S.W.2d 530, 549 (1992), a case involving former Tennessee Rule of Evidence 701, a rule that precluded lay witness testimony based on 'special knowledge.' In Brown, the court declared that the distinction between lay and expert witness testimony is that lay testimony 'results from a process of reasoning familiar in everyday life,' while expert testimony 'results from a process of reasoning which can be mastered only by specialists in the field.' The court in Brown noted that a lay witness with experience could testify that a substance appeared to be blood, but that a witness would have to qualify as an expert before he could testify that bruising around the eyes is indicative of skull trauma. That is the kind of distinction made by the amendment to this Rule."

So, SCO did a little dance about their "experts" not being experts, and how a layperson can testify as to whether UNIX code was improperly placed in Linux and how CMVC works. And IBM could have said, wait a minute. This is testimony that needs to be properly offered only by experts, properly qualified under Rule 702. They do briefly say it in footnote 7. That's probably what SCO expected. Instead of stressing that, though, IBM in a neat turnaround said instead, Fine. Have it your way. They *aren't* experts. And because they are not, their opinions are not admissable, because lay witnesses can't offer opinions under Rule 701 except when "rationally based on the perception of the witness", and that doesn't mean they read a pamphlet on CMVC or boned up on discovery documents.

As it happens, that also means there is little or nothing left being offered by SCO to rebut IBM's motion. What a dance move on IBM's part.

Some cases cited might interest you. Here is Foster v. Alliedsignal, which quotes from a Supreme Court ruling in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986), which talked about when you should grant a summary judgment motion and when it would be better to let it go to a jury trial, and you'll see, I think, why IBM is wise to simply bat the testimony clear out of the park, if it can:

"The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor. Neither do we suggest that the trial courts should act other than with caution in granting summary judgment or that the trial court may not deny summary judgment in a case where there is reason to believe that the better course would be to proceed to a full trial."

It's very hard to win a motion for summary judgment, in other words, because the judge is obligated to accept all facts presented by the nonmovant. SCO in this picture is the "nonmovant" whose evidence must be believed in a summary judgment action, so if IBM can simply remove all the declarations, what evidence is there that is left to believe? Exactly. SCO gave them an opportunity to make this move by coyly claiming that they were not offering testimony from experts and were not going to the merits of the motion. See what I mean about acing SCO? If it works, it's positively brilliant, and there's a good feel to it, because it feels so right for SCO to lose because of their own tricks. Whether it will work or not, I can't predict. But it certainly could.

Footnote 1 in Foster v. Alliedsignal is the part that IBM is citing, because in that case, the plaintiff submitted a telephone log, showing that she had called Alliedsignal on two occasions. The court said that the affidavit by her attorney set forth facts of which he had no personal knowledge and thus were inadmissible as evidence, since he had no knowledge about the log, the information in it, the document's source or its authenticity. IBM uses the case, therefore, to point out that attorney John Harrop trying to testify to matters because he merely read some discovery materials can't fly.

You'd never actually need witnesses in any case, IBM argues, if SCO's theory of personal knowledge were accepted. Both sides could just read up on the case and testify about what they read. This is likely to make the judge smile, because it is ludicrous:

"SCO's arguments that Mr. Sontag, a SCO officer, has personal knowledge sufficient to offer sworn testimony about the workings of IBM's internal CMVC system 'based upon information he read in IBM's documents describing CMVC' in the course of this litigation (SCO Opp'n at 15), or that Mr. Harrop, SCO's outside counsel, has 'personal knowledge' sufficient to testify about the history and current development process of Linux, and about IBM's contractual rights and obligations, because 'Mr. Harrop is familiar with documents in this case' (SCO Opp'n at 18) -- is counter to basic rules of evidence. Were SCO's theory of 'personal knowledge' correct, there would never be any need for first-hand witnesses to testify at any trial; the attorneys or other designated representatives for each side could simply review and familiarize themselves with documents produced during the case, and then testify, under oath, and with"

Or here's an idea. If we don't need witnesses to speak from firsthand knowledge, maybe each side could just hire a knight to hop on a horse and carry a party's flag into the arena and fight on their behalf, and may the best man win. Who needs witnesses to facts then? It's all so silly, you might as well settle things that way, if you toss out the requirement that witnesses must speak from personal knowledge.

IBM cites a case, Denmon v. Runyon, and attaches it as Exhibit B, p. 22 of the PDF, that says that declarations are "subject to the same requirements as affidavits ... the court may only consider material that would be admissible at trial," that "[s]tatements not based on personal knowledge must be disregarded by the court, and that "declarations may not be 'based on a review of the records.'" So, if IBM is successful is arguing that the declarants lack personal knowledge, then their declarations must be stricken and not considered when deciding the motion, and Mr. Harrop and Sontag's reading matter will not qualify as evidence of personal knowledge:

" . . . Mr. Harrop, a SCO attorney who joined SCO's legal team nine months after this litigation began, purports to have acquired personal knowledge of a variety of topics such as the development of Linux and the difficulties of software code comparison solely through his 'review of pleadings, discovery filings and public articles' related to this litigation. Similarly, Mr. Sontag, a SCO executive, purports to have acquired personal knowledge of IBM's internal software control through his review of several documents discovered during litigation. . . .

"Finally, the Supplemental Declarations of Messrs. Sontag, Gupta, and Harrop do not cure the declarants' lack of personal knowledge. . . . For example, in testifying as to the alleged fact that two particular IBM employees had access to UNIX code, . . .Mr. Gupta testifies that his statements were 'based on documents that were compiled by members of the SCO team and which I read and reviewed'. . . . Mr. Sontag's Supplemental Declaration likewise states that he 'ha[s] read portions of IBM documents about its CMVC product' and thus somehow acquired personal knowledge of CMVC that way. . . . Similarly, in a vain attempt to establish his personal knowledge of the facts contained within various hearsay news articles, Mr. Harrop states that he 'reviewed...all...public articles that are cited, quoted or referred to in [his] July 9 Declaration.' . . . As discussed above, such a review of documents undertaken in the midst of litigation is insufficient to create personal knowledge."

As you can see, IBM is having some fun, in its own dry and deadly way. And this is just the first section of their argument. There are many more goodies, but I need to get some sleep, and you'll enjoy it on your own the rest of the way, now that I have explained what I enjoyed so much about IBM's Reply Memorandum. Take note of the final footnote. I'll probably try to write about what they did in that footnote, the way they used cases, because it's a sight to behold too.

This is the creative part of the law, the part I love the most, second only to research: when you read what the other side submits and then decide, out of all your options, what to do in response. Those choices are where the art comes into it. And it's a plum pleasin' pleasure to read a memorandum like this.

By the way, I put the footnotes inside the pages where they appear. Let me know if this helps or makes it harder to follow along. It's an experiment, in anticipation of really long documents with lots of footnotes thorughout, like the EU antitrust decision against Microsoft, for example.

***************************************

SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[address, phone, fax]

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone, fax]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

_______________________________

The SCO GROUP, INC.,

Plaintiff/Counterclaim-Defendant,

v.

INTERNATIONAL BUSINESS MACHINES
CORPORATION,

Defendant/Counterclaim-Plaintiff.

______________________________

DEFENDANT/COUNTERCLAIM-PLAINTIFF
IBM'S REPLY MEMORANDUM IN
SUPPORT OF MOTION TO STRIKE
MATERIALS SUBMITTED BY SCO IN
OPPOSITION TO IBM'S CROSS-MOTION
FOR PARTIAL SUMMARY JUDGMENT

Civil No. 2:03CV-0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

_______________________________

Defendant/Counterclaim-Plaintiff International Business Machines Corporation ("IBM") respectfully submits this Reply Memorandum in Support of its Motion to Strike Materials Submitted by SCO in Opposition to IBM's Cross-Motion for Partial Summary Judgment.

Preliminary Statement

In response to IBM's motion to strike certain incomplete and inadmissible materials that SCO had submitted in support of its opposition to IBM's cross-motion for partial summary judgment on its Tenth Counterclaim, SCO concedes that the Declarations of Chris Sontag, Sandeep Gupta, and John Harrop were not submitted for the purpose of attempting to show that a genuine issue of material fact exists that would preclude summary judgment.1 Rather, SCO now insists, these declarations were submitted only "for a very narrow purpose: to provide the Court with Rule 56(f) facts" (SCO Opp'n at 1), and were not intended by SCO to oppose IBM's motion "on the merits". (Id. at 30.)2 In light of SCO's admission, then, the Court should not consider any of the statements in the Sontag, Gupta, or Harrop Declarations (or any portions of SCO's opposition to IBM's summary judgment motion that cite such testimony) in deciding whether a genuine issue of material fact exists with respect to IBM's motion.

Even with respect to SCO's 56(f) application, however, the declarations submitted by SCO remain inadmissible, for the reasons set forth in IBM's opening brief. Nothing in SCO's opposition brief or in any of the "supplemental" declarations submitted therewith alters the fact

______________
1 SCO spends half of its opposition to IBM's motion to strike the Declarations of Chris Sontag, Sandeep Gupta, and John Harrop (SCO Opp'n at 1-13) simply reviewing and repeating the statements contained in those Declarations. SCO's lengthy description of the Declarations, however, does not make them any more admissible.

2 Indeed, SCO specifically states Mr. Gupta's declaration "was not [offered] to show IBM's copyright infringement of SCO's protected UNIX code" (SCO Opp'n at 31) -- i.e., not offered to rebut IBM's showing in its moving papers that there is no genuine issue of material fact that IBM's Linux activities do not infringe SCO's alleged copyrights. SCO thus admits that its prior contention that the facts set forth in Mr. Gupta's declaration "show copying of material from UNIX into Linux" and "are themselves sufficient to create genuine issues of material fact" is wrong. (SCO Opp'n to IBM's Cross-Motion for Partial Summary Judgment at 85-85.)

2

that the testimony of Messrs. Gupta, Sontag, and Harrop is not based on personal knowledge and contains improper opinion testimony and legal argument. Accordingly, the Court should strike the Gupta and Sontag Declarations and portions of the Harrop Declaration (and each of their Supplemental Declarations) and decline to consider them in ruling on IBM's cross-motion for summary judgment or on SCO's Rule 56(f) application.

In addition, SCO fails adequately to explain why it should be permitted to rely on hearsay statements made in certain news articles attached to the Harrop Declaration. Those materials should likewise be stricken.

Argument

I. The Court Should Strike SCO's Declarations Because SCO Still Cannot Show That
Its Declarants Have Personal Knowledge.

SCO contends that the Sontag, Gupta, and Harrop Declarations are based on personal knowledge because the declarants "describe[ ] facts which they observed during their education, their careers or the conduct of this case". (SCO Opp'n at 13.) However, other than simply asserting that these individuals have personal knowledge, or claiming (incorrectly) that the declarants may be deemed by this Court to have acquired personal knowledge (incredibly, by reading documents discovered during this litigation), SCO fails to show that the testimony is based in any way on the "perception" of these witnesses, much less that it is "rationally based" on their perception, as Rule 701 of the Federal Rules of Evidence requires.

First, Messrs. Sontag, Gupta, and Harrop's "participation" in this litigation and their review of documents discovered during the course of the litigation, including documents produced by IBM, is insufficient to establish that the witnesses possess personal knowledge of the facts contained in their declarations. Contrary to SCO's assertion, it is well-established that testimony based simply on a review of documents is not made on "personal knowledge" and is therefore inadmissible. See, e.g., Stanolind Oil & Gas Co. v. Sellers, 174 F.2d 948, 956-57 (10th Cir. 1949) (reversing district court decision allowing testimony of fact witness where the witness

3

"had no knowledge of the field until after this litigation began and then such as he learned, he learned in retrospect"); Foster v. Alliedsignal, Inc., 98 F. Supp. 2d 1261, 1265 (D. Kan. 2000), rev'd on other grounds, 293 F.3d 1187 (D. Kan. 2002) (striking plaintiff's attorney's "affidavit that the telephone log shows that '[plaintiff] called defendant at (913) 842-0406, two times on December 12, 1995'" because attorney "ha[d] no personal knowledge regarding [the underlying fact of] whether plaintiff telephoned defendant on that day" and "ha[d] no personal knowledge of any of the information contained [within the telephone log], the [log's] source, or its authenticity").3

SCO's arguments that Mr. Sontag, a SCO officer, has personal knowledge sufficient to offer sworn testimony about the workings of IBM's internal CMVC system "based upon information he read in IBM's documents describing CMVC" in the course of this litigation (SCO Opp'n at 15), or that Mr. Harrop, SCO's outside counsel, has "personal knowledge" sufficient to testify about the history and current development process of Linux, and about IBM's contractual rights and obligations, because "Mr. Harrop is familiar with documents in this case" (SCO Opp'n at 18) -- is counter to basic rules of evidence. Were SCO's theory of "personal knowledge" correct, there would never be any need for first-hand witnesses to testify at any trial; the attorneys or other designated representatives for each side could simply review and familiarize themselves with documents produced during the case, and then testify, under oath, and with

____________________________
3 See also In re M. Silverman Laces, Inc., No. 01 Civ. 6209, 2002 WL 31412465, at *3 (S.D.N.Y. Oct. 24, 2002) (holding that "an attorney had no personal knowledge [sufficient to submit a declaration where] . . . he was not involved in any of the underlying transactions [and] his knowledge was based soley on information he gained from reviewing documents and interviewing or deposing witnesses in the course of litigating this action") (attached hereto as Ex. A); Rivera v. Levitt, 88 F. Supp. 2d 1132, 1142 n.4 (D. Colo. 2000) (striking plaintiff's affidavit that "he ha[d] personal knowledge of other non-Hispanic SEC attorneys who were disciplined less severely than he for the same work rule violations" where the basis for his alleged personal knowledge was his review of "monthly reports" and "letters"); Denmon v. Runyon, Civ. A. No. 92-2144, 1993 WL 441970, at *2 (D. Kan. Oct 25, 1993) (striking affidavit on summary judgment where the statements in the affidavit were "based on a review of records") (attached hereto as Ex. B).

4

"personal knowledge", as to the "facts" at issue in the litigation. 4 That plainly does not make any sense.

Second, SCO's reliance on the "education" and "career" experience of the declarants to support their alleged "personal knowledge" is misplaced. SCO argues, for example, that Mr. Gupta has "personal knowledge" sufficient to allow him to offer the opinions set forth in his declaration by virtue of "his education, career, and participation in this case". (SCO Opp'n at 16) SCO further claims that Mr. Gupta's personal knowledge is shown by his alleged "analy[ses] [of] both the UNIX System V source code and portions of the Linux source code." (Id. at 17.) Of course, far from demonstrating "personal knowledge," SCO simply borrows the standards that are relevant to determining whether a declarant is qualified to offer expert opinion tesitmony (and SCO insistes that none of its three declarants is offering expert testimony).

_________________________
4 SCO's cases in support of its argument that documents can provide the basis for personal knowledge are unavailing. As SCO readily admits, the court in Sitts v. United States, 811 F.2d 736 (2d Cir. 1987), held that an attorney's personal knowledge in an affidavit could be based on documentary evidence, but only as to procedural facts in a case and not to substantive facts. (SCO Opp'n at 19, citing Sitts, 811 F.2d at 742.) Mr. Harrop's declaration does not concern solely procedural facts in this case, however, but rather substantive facts about which Harrop has no personal knowledge. SCO's reliance on United States v. Letscher, 83 F. Supp. 2d 367 (S.D.N.Y. 1999), fails for the same reason. The attorney affidavit admitted in Letscher "set forth the procedural history of th[e] case", id. at 381, and not substantive facts. In re Tex. E. Transmission Corp. PCB Contamination Ins. Coverage Litig., 870 F. Supp. 1293, 1304 (E.D. Pa. 1992), is also inapposite. In that case, the declarant was found to have personal knowledge of his own company's historical policies and practices where he had reviewed the company's corporate documents and discusses the events with other senior executives at the company during the course of his employment. That is far different from the instant situation, where Mr. Harrop, a SCO attorney who joined SCO's legal team nine months after this litigation began, purports to have acquired personal knowledge of a variety of topics such as the development of Linux and the difficulties of software code comparison solely through his "review of pleadings, discovery filings and public articles" related to this litigation. Similarly, Mr. Sontag, a SCO executive, purports to have acquired personal knowledge of IBM's internal software control through his review of several documents discovered during litigation. SCO's final case, In re: Real Estate Assocs. Limited Partnership Litig., No. Civ. 98-7035, 2002 WL 31027557, at *1 (C.D. Cal. Aug. 29, 2002), is a 2-page unpublished opinion from the Central District of California that is not controlling and lacks any detail concerning the nature of the affidavit challenged in that case.

5

Finally, the Supplemental Declarations of Messrs. Sontag, Gupta, and Harrop do not cure the declarants' lack of personal knowledge. Aside from bare assertions that the original Declarations are based on personal knowledge, the Supplemental Declarations do little to show that the declarants in fact have the requisite personal knowledge. Rather, they merely confirm that the declarants' testimony is based, in many cases, only on second-hand and hearsay knowledge and on a review of certain documents produced in this litigation. For example, in testifying as to the alleged fact that two particular IBM employees had access to UNIX code, (Gupta Decl. 24-29, 48-49), Mr. Gupta testifies that his statements were "based on documents that were compiled by members of the SCO team and which I read and reviewed". (Gupta Supp. Decl. 28.) Mr. Sontag's Supplemental Declaration likewise states that he "ha[s] read portions of IBM documents about its CMVC product" and thus somehow acquired personal knowledge of CMVC that way. (Sontag Supp. Decl. 12.) Similarly, in a vain attempt to establish his personal knowledge of the facts contained within various hearsay news articles, Mr. Harrop states that he "reviewed...all...public articles that are cited, quoted or referred to in [his] July 9 Declaration." (Harrop Supp. Decl. 7.) As discussed above, such a review of documents undertaken in the midst of litigation is insufficient to create personal knowledge.

II. The Paragraphs Of The Harrop Declaration That Are Impermissible Legal
Argument Should Be Stricken.

SCO also makes no real effort in its brief to oppose IBM's contention that certain paragraphs in the Harrop Declaration, 5-9, 11-24, 27, 29-30, 39-40, 47, 62, 67, 69 and 76-90, should be stricken as improper legal argument. The closest SCO comes to a response is its oft-repeated conclusory statement that Mr. Harrop's declaration is based upon personal knowledge, and the claim in Mr. Harrop's Supplemental Declaration that he has "personal knowledge of the facts" in at least some of those paragraphs. (Harrop Supp. Decl. 8-9.) Whether or not Mr. Harrop has personal knowledge of facts allegedly contained in the offending paragraphs (and it is plain that he does not), however, is irrelevant to whether such paragraphs contain improper legal

6

argument (which they do). Accordingly, those paragraphs of the Harrop Declaration that contain improper legal argument should be stricken. See Pfeil v. Rogers, 757 F. 2d 850, 862 (7th Cir. 1985) (holding that "[b]ecause legal argumentation is an expression of legal opinion and is not a recitation of 'fact' to which an affiant is competent to testify, legal argument in an affidavit may be disregarded.").5

III. None Of The Declarants Purports To Offer Expert Opinion Testimony.

As SCO expressly concedes that it has not offered any of the declarants as experts providing expert opinion testimony (SCO Opp'n at 30), there is no basis for the Court to consider any of the Declarations on this ground either.6 Since Messrs. Gupta, Sontag, and Harrop cannot offer such expert opinion testimony as lay witnesses either7 , the expert opinion testimony in the Gupta and Sontag Declarations (as well as those portions of the Harrop Declaration that rely on those opinions) should therefore be stricken.8

________________________
5 See also American Airlines, Inc. v. Platinum World Travel, 717 F. Supp. 1454, 1456 n.1 (D. Utah 1989); Safetech Int'l, Inc. v. Air Prods. And Controls Inc., No. 02-2216, 2004 U.S. Dist. LEXIS 2173, at *7 (D. Kan. Feb. 3, 2004) (attached to IBM's Memorandum in Support of Its Motion to Strike, Exhibit B).

6 SCO also does not make any effort to correct Mr. Gupta's flawed analysis of substantial similarity, instead conceding that Mr. Gupta's declaration was not offered "to show IBM's copyright infringement of SCO's protected UNIX code". (SCO Opp'n at 31.)

7 While a lay witness may offer opinion testimony if such opinions are "rationally based on the perception of the witness", Fed. R. Evid. 701 (emphasis added), it is clear that, contrary to SCO's contention, the opinions in Mr. Gupta's and Mr. Sontag's declarations regarding the process, techniques, and alleged results of comparing computer source code are the province of expert, not lay, testimony. See Lifewise Master Funding v. Telebank, 374 F.3d 917, 929 (10th Cir. 2004) (stating that "[w]hen the subject matter of proffered testimony constitutes 'scientific, technical, or other specialized knowledge'", a witness must be qualified as an expert under Rule 702 (quoting Fed. R. Evid. 702)); Hilgraeve Corp. v. McAfee Assocs., Inc., 70 F. Supp. 2d 738, 755 (E.D. Mich. 1999) (holding that the field of computer science "is precisely the type of 'specialized knowledge' governed by Rule 702"). None of the cases SCO cites for the proposition that lay opinions are sometimes permitted concerned a comparison of computer code.

8 SCO claims that none of its declarants needs to be qualified as an expert witness because none of their declarations contains opinion testimony. SCO's description of the clear opinion

7

IV. The Court Should Exclude Certain Of The Documents Submitted By SCO In
Opposition To IBM's Motion For Partial Summary Judgment.

IBM moved to strike Exhibits 38, 41, 52, 56, 57, 58, 59, 64 to SCO's brief in opposition to IBM's summary judgment motion because they are newspaper articles that were offered by SCO for the truth of the matters asserted.9 This is classic inadmissibile hearsay that should not be considered by the Court. (IBM Mem. at 15.) In response to IBM's motion, SCO advances two arguments. Both are untenable.

First, Mr. Harrop contends that "[i]t has been common practice in the pleadings in this case to present newspaper, magazine, and Internet articles to the Court". (Harrop Supp. Decl. 12.) This argument borders on the frivolous. IBM has never asserted that statements in newspaper, magazine, and Internet articles may never properly be relied upon. To the contrary, such statements may properly be relied upon in any number of circumstances, if they constitute admissions by a party opponent, or if they are subject to any of the numerous exceptions to the

______________________
testimony of its declarants as simple "fact testimony" strains credibility. For example, SCO insists that Mr. Sontag's statements that "us[ing] an automated process to perform a complete comparison of all of the source code in UNIX and Linux...is not feasible" and that manual review "could take on the order of 25,000 man-years" are not opinions, but are facts. (Sontag Decl. 10, 14.) If statements such as these are not opinions, it is hard to imagine what could ever be considered an opinion in SCO's view. SCO also takes issue with IBM's citation of the following statement by Mr. Gupta as evidence that Mr. Gupta offers inadmissible opinion testimony in his declaration: "In this declaration, I explain why I believe that several routines and several groupings of code for which SCO has copyright protection were copied into the Linux operating system". (Gupta Decl. 3.) SCO argues that this is a statement of fact because Mr. Gupta is merely summarizing what is stated in his declaration. SCO is again wrong. Mr. Gupta plainly stating his "belie[f]", in other words, his opinion, that code that SCO has copyrighted has been copied into Linux, and his entire declaration is addressed to substantiating his opinion.

9 IBM also moved to strike, as extraneous documents, 11 exhibits (Exs. 24, 25A, 33, 36, 42, 50, 51, 61, 63, 65, and S-3) that were attached to SCO's opposition to IBM's summary judgment motion but that were not referenced anywhere in SCO's brief or in any of the witness declarations submitted by SCO. As SCO offers not response to IBM's request, these materials should also be stricken.

8

hearsay rule set forth in the Federal Rules of Evidence. In this instance, however, Mr. Harrop seeks to rely on the offending articles solely for the truth of matters asserted therein (and he does not contend otherwise), and that is not permitted.

Second, SCO argues that a party opposing summary judgment is entitled to relaxed evidentiary standards and may disregard the prohibition against presenting hearsay newspaper articles in opposing summary judgment. (SCO Opp'n at 22.) SCO is wrong. Rule 56(e) of the Federal Rules of Civil Procedure specifically provides that affidavits submitted in opposition to a motion for summary judgment "shall set forth such facts as would be admissible in evidence". Fed. R. Civ. P. 56(e) (emphasis added). Courts in this circuit have therefore routinely rejected SCO's argument and stricken hearsay articles submitted in opposition to summary judgment. See Molina v. Spanos, 208 F.3d 226 (Table) (10th Cir. 1999) (rejecting plaintiff's appeal of "the district court's detemination that it would not consider a newspaper article submitted by plaintiff" in opposition to summary judgment because "[t]he article constitutes inadmissible hearsay"); Johnson v. Housing Auth., 887 F. Supp. 1440, 1446 (E.D. Okla. 1995) (holding that "newspaper articles" cited in opposition to summary judgment were "inadmissible hearsay"); Good v. Bd. of County Comm'rs, No. 01-4067, __ F. Supp. 2d __, 2004 WL 1859729, at *8 (D. Kan. May 19, 2004) (holding that "plaintiff['s] offer...[of newspaper] articles to prove the information contained in them" submitted in opposition to summary judgment was "hearsay and may not be considered on a motion for summary judgment") (attached hereto as Ex. C); Miles v. Ramsey, 31 F. Supp 2d 869, 876 (D. Colo. 1998) (holding that the "Court may not consider this evidence" of statements made in a newspaper submitted in opposition to summary judgment because "the articles are inadmissible hearsay"). 10

____________________________
10The cases SCO cites in support of its argument that hearsay articles may be submitted in opposition to summary judgment are unavailing. As an initial matter, SCO attempts to rewrite the Supreme Court's decision in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), contending that in Celotex, "[t]he Supreme Court allowed an opponent to submit three letters which constituted

9

Conclusion

For the foregoing reasons, IBM respectfully requests that the Court strike the materials submitted by SCO in opposition to IBM's cross-motion for partial summary judgment, as well as the Supplemental Declarations submitted by Messrs. Gupta, Harrop, and Sontag, dated September 7, 2004, and not consider them in ruling on IBM's Cross-Motion for Partial Summary Judgment on its Tenth Counterclaim.

DATED this 13th day of September, 2004.

SNELL & WILMER L.L.P.

___[signature]____ Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler
David R. Marriott

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

___________________
hearsay in opposition to a motion for summary judgment". (SCO Opp'n at 22 n.3, citing Celotex, 477 U.S. at 320.) A careful review of Celotex, however, reveals that SCO has invented this holding whole-cloth. In Celotex, the Supreme Court merely recited the procedural history of the case, noting that the respondent, before the district court, had submitted three documents in opposition to summary judgment to which the petitioner had objected on the grounds that they contained inadmissible hearsay. The Supreme Court spoke no further on these documents and certainly did not rule on whether the documents did constitute hearsay, or whether they were properly admitted. The two additional cases cited by SCO are decisions by the Eleventh Circuit, Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013 (11th Cir. 1987), and Church of Scientology Flag Services Org., Inc. v. City of Clearwater, 2 F.3d 1514, 1530-31 (11th Cir. 1993). To the extent that these cases may support SCO's argument, they are plainly contrary to the law of this circuit. Even within the Eleventh Circuit, judges have criticized the circuit's position. See Offshore Aviation, 831 F.2d at 1016-1017 (Edmondson, J., concurring); Int'l Ship Repair & Marine Servs., Inc., v. St. Paul Fire & Ins. Co., 906 F. Supp. 645, 648-49 (M.D. Fla. 1995).

10

Of counsel:

INTERNATIONAL BUSINESS MACHINES CORPORATION
Donald J. Rosenberg
Alec S. Berman
[address, phone]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

11

CERTIFICATE OF SERVICE

I hereby certify that on the 13th day of September, 2004, a true and correct copy of the foregoing was hand delivered to the following:

Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]

And was sent by U.S. Mail, postage prepaid, to the following:

Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]

Robert Silver
BOIES, SCHILLER & FLEXNER LLP
[address]

___[signature]____
Amy F. Sorenson


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