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SCO's 1st Requests for Documents and Interrogatories: Exhibit 3, SCO v. Novell, as text
Saturday, June 03 2006 @ 03:24 PM EDT

Every law firm has its style.

We just saw how Morrison & Foerster does interrogatories and requests for documents, and here's SCO's First Request for Documents and First Set of Interrogatories [PDF] as text, Exhibit 3, attached to SCO's Memorandum in Opposition to Novell's Motion to Stay Claims Raising Issues Subject to Arbitration [PDF].

What I noticed in comparing the two is that Morrison & Foerster says "please" over and over. Boies Schiller does not do so with each request. It's a small thing, but you just can't help but notice the contrast.

There is no particular form you have to follow or wording you must use in doing discovery requests like this, although there is certainly boilerplate language you typically see. Here are the Federal Rules of Civil Procedure's rules regarding interrogatories, and you can see there's no requirement of writing them any particular way. So there can be a lot of variety, but over time, some wording has become typical. Compare Novell's definition of "communication" in paragraph 7 of its First Requests for Documents with SCO's in paragraph 10 in its First Request:

Novell #7. "Communication" means any transmission, conveyance, or exchange of information, whether by written, oral, or other means. It includes, without limitation: any meeting, discussion, contact, conference, telephone conversation, letter, e-mail transmission, Internet posting, memorandum, document, message, telegram, telefax, mailgram, billing statement, any electronic recording, or other form of written or oral information transmission or exchange.

SCO #10. The term "communication" shall mean any transmission, conveyance, or exchange of information, whether by written, oral, or other means. It shall include without limitation any meeting, discussion, contact, conference, telephone conversation, letter, e-mail transaction, Internet posting, memorandum, document, message, telegram, telefax, mailgram, billing statement, electronic recording, or other form of written or oral information transmission or exchange.

They are almost word for word. In fact, as I was typing it, I just copied and pasted, and then modified here and there, rather than type it up again fresh. In other cases, the language isn't identical, but functionally, they are the same. Compare Novell's definition of "document" in paragraph 6 of its First Requests for Documents with SCO's definition in paragraph 9 of its First Request:

Novell #6. "Documents" or "document" shall have the broadest possible meaning permitted by Federal Rules of Civil Procedure 26 and 34 and the relevant case law, and shall include any tangible thing upon which any expression, communication, or representation has been recorded, as well as all "writings," "recordings," and "photographs," as defined by Federal Rule of Evidence 1001. "Document" shall include materials stored electronically or electromagnetically (such as electronic mail or any other electronic files) and all drafts or non-final versions, alterations, modifications, and amendments to any of the foregoing. A "document" also shall include all attachments and enclosures, all drafts or copies that differ in any respect from the original, and all handwritten notations or notes attached on the front or back via adhesive or the like. (If copies are made of documents with notes attached on the front or back via adhesive, they shall be produced both with and without the attached adhesive notes.)

SCO #9. The term "document" shall have the broadest possible meaning permitted by Federal Rules of Civil Procedure 26 and 34 and precedent, and shall include every record of every type including, without limitation, information stored on any electromagnetic storage device, or computer; any written, printed, typed, recorded, stored, or graphic matter, however produced, reproduced, or existing in the possession, custody, or control of Defendant, or any agent, employee, or attorney of the Defendant; and all drafts, notes, or preparatory material concerned with said document, and every additional copy of such record or document where such copy contains any commentary, notation, or other change whatsoever that does not appear on the original or other copy of the document produced. The terms "document" shall include any summary of a document or documents called for hereafter.

Here the language isn't identical, but the ideas are the same. It begins with identical wording, but where Novell said "relevant case law" SCO says "precedent." They mean the same thing. You might say the methods and concepts are the same in both definitions, even though the wording isn't precisely the same. They are each asking for the same things. Novell asks for "graphic matter" and SCO asks for "photographs" but what gets turned over will be identical, because they are asking for the same thing in different wording. What matters is the function more than the wording, and if a firm receives a Request for Documents and see the other side's form includes something the firm never thought to include, or says it in a particularly effective way, of course it will add it to its next Request for Documents it serves. The wording may be obfuscated, but the firm has benefited from the other firm's ideas, if not even the exact wording. Novell's came first, so maybe Boies Schiller liked their version. I say that because if you read, or in most of our cases reread, SCO's First Interrogatories and First Requests for Documents [PDF] in the SCO v. IBM litigation, you'll see their definitions are worded differently back then in 2003. Here is their definition for "document" back then:

4. The term "document" shall be deemed to include every record of every type including, without limitation, information stored on any electromagnetic storage device, or computer, any written, printed, typed, recorded, stored, or graphic matter, however produced, reproduced, or existing in the possession, custody, or control of Defendant, or any agent, employee, or attorney of the Defendant, and all drafts, notes, or preparatory material concerned with said document, and every additional copy of such record or document where such copy contains any commentary, notation, or other change whatsoever that does not appear on the original or other copy of the document produced. "Document" shall be deemed also to include any summary of a document or documents called for hereunder.

As you can see, the opening phrase they now use, that Novell used earlier ("The term 'document' shall have the broadest possible meaning permitted by Federal Rules of Civil Procedure 26 and 34 and precedent...") isn't in the older document Boies Schiller used with IBM. Might they have seen Novell's usage and thought it was a good idea to add it? That happens all the time. Or is it an astounding coincidence? As a paralegal, if I saw language I thought was really effective, I'd definitely save it for reuse. I had a whole collection on various topics. Lawyers learn from each other all the time and use each others' work. There's even a book lawyers use, called McKinney's Forms, that shows you appropriate language for various types of documents, and if you read the terms and conditions on use, strict though they are, the purpose of the book is to provide you wording to use in your legal documents.

Lawyers need that because there are all kinds of rules on what needs to be included in various types of legal filings, and frankly your head would explode if you tried to memorize it all, particularly the stuff you don't use every day. So there are form books to speed you along and help you get it right.

There are forms for everything in the law. There's even a Findlaw forms exchange message board, but I hope you read the second message, which explains why grabbing a form off the Internet without knowing what you are doing can cost you more than paying a lawyer. Some companies even go to court and get filings and then sell them to the public as sample language, although I've never understood that business model or why you'd want to do that, except that seeing how someone else does it may help a lawyer write up his own form.

Lay people shouldn't try that, though, in my view, except as a last resort, and only in the sense that it's better than doing it yourself without a form to guide you. I never recommend pro se filings, though. I'd never do one myself, despite knowing a fair amount about how to do it. I'd hire a lawyer, no matter what I had to do without to get the money. Law is particular to your situation, your state and country, your facts of the case, and without going to law school, you really can't do it yourself just by a form without risking making huge mistakes.

But to learn or for someone who knows the law, a sample of a form is useful. Yale University has a collection of sample licensing agreements, for example, and for a law student, paralegal, or even a lawyer, that can be useful, to make sure nothing is overlooked. And there are commercial offerings too. Here are some samples of interrogatories and as you can see by the titles, they vary by type of case and other factors. What most lawyers I know do is just call up a colleague and ask him to fax over a form if they need something unusual, or look in the files of older cases to see what other firms did in a similar situation. For lawyers, looking at someone else's brief or contract really helps. With so many rules and elements to get just right, they don't just make up words out of thin air. And it's stupid to keep reinventing the wheel. This isn't creative writing in the sense of a novel, after all. That's why I think lawyers ought to be able to understand the value of open source development of software, because it's exactly the same, but more open and straightforward and it's free as in beer and as in speech.

If a lawyer likes what another lawyer has done, sometimes he might change the wording just slightly to make it less apparent that he's using someone else's wording, to obfuscate a bit or just because his client's situation is slightly different. I think that may be what happened here, from the looks of it. That's why lawyers are a little hypocritical when it comes to copyright infringement, because they do it all the time themselves, in my experience. And the simple truth is, everyone in the world builds on the work of others. It's how humans think and develop. I'm not talking about copying an entire brief and pretending it is your work, but if you admire something, you tend to imitate it. It is human nature. You probably wanted to be just like your dad, when you were a little boy, didn't you? So you'd try to walk like him and talk like him. We're hard wired that way.

Lawyers would argue that using a chunk of language from someone else's brief is fair use or maybe they'd say it's de minimis, which is what you should argue when talking about a tiny bit of copied wording or code or a tiny bit of anything. But there is a kind of double standard in that in this case, judging from what is publicly known, there is a big brouhaha over what appears to be almost nothing, if anything at all, nothing much different from what we see in the legal language.

Anyway, my point is, with freedom to compose the wording as you please, personality tends to show up. As I say, it's just a style issue, but speaking for myself, I'm drawn to people who say please and thank you. One reason I was attracted to the legal field is because there is a code of professional courtesy. At least there is supposed to be. There's no real need to be rough and tough in interrogatories, unless that is a persona you wish to convey. Some law firms like to be known as mean pit bulls, maybe because they think their clients want them to be like that (see this Utah Bar Journal article, for example, on that theme), sort of like the ancient Assyrians, who I'm told thought it was useful to portray themselves as cruel and vicious (and in fact it was no PR effort, because they apparently *were* cruel and vicious), so other nations would give up without a fight out of terror. How it played out, though, was people were so terrorized by their reputation for cutting off ears and tongues and skinning captives alive and putting out eyeballs that they tended to fight to the death instead. Anyway, side point, but I'm just saying that, putting this detail in with today's news in the New York Times about Boies Schiller's CFO being sanctioned by a Florida court for contempt and being ordered to pay a $500,000 fine and serve 90 days in jail -- without apparently losing her job -- makes me conclude that the firm really may not care much what the world thinks of them.

Their document requests and interrogatories are thorough, but they make no major effort to be polite. And they're a bit odd in one respect. At one point, I had to look at page one to make sure I was transcribing the right document, because they were asking for item after item that SCO would logically already have. It puzzled me quite a lot, until it dawned on me that they must be trying to get Novell to show what it knows. Think about that a minute, and ask yourself, why would they want to know that? For example, SCO asks for this:

4. All documents concerning Santa Cruz's transfer of its Server Software Division and Professional Services Division to SCO.

5. All documents (not included in the document requests above) concerning the transfer of copyrights from Santa Cruz to SCO.

As for 4, why would Novell have any documets about that transfer? And number 5 is hilarious, isn't it, particularly in light of SCO's definition for "SCO" in number 2 of its definitions? It is talking about a purported transfer from Santa Cruz to Caldera, not SCO to SCO. I know one can argue Caldera is SCO, in that they changed their name. But they are not oldSCO. The wording reflects the longstanding pretense that Caldera, now SCO Group, is in fact Santa Cruz Operation, which it is not. That pretense puts SCO in the ridiculous position of asking for all documents from SCO to SCO. And exactly why would Novell have such documents anyway? They were not involved. These are documents that presumably SCO has in hand already. So the only explanation that I've been able to come up with so far is perhaps SCO wants to know what evidence Novell might have that disproves SCO's claims and SCO doesn't want to be ambushed by evidence. I am aware that there could be other explanations I haven't thought of. For one thing, it's clear from reading the documents that SCO has it in its head that there is some sort of conspiracy going on. I see that in Paragaph 44:

44. All communications involving Novell and any one or more of the following parties concerning Novell's alleged rights to waive, or direct SCO to waive, SCO's rights or claims under any UNIX license agreement: Computer Associates International, Inc., Dell, Inc., Hewlett-Packard Company, Intel Corporation, IBM, Oracle Corporation, and Silicon Graphics, Inc.

They are mentioned more than once.

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

Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[address]
[phone]
[fax]

Stuart H. Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Attorneys for The SCO Group, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

THE SCO GROUP, INC.,

Plaintiff,

v.

NOVELL, INC.,

Defendant.

PLAINTIFF'S FIRST REQUEST FOR
PRODUCTION OF DOCUMENTS
AND FIRST SET OF
INTERROGATORIES

Case No. 2:04CV00139
Honorable Dale A. Kimball

1

Defendant is directed to give answers to the written interrogatories separately, fully, in writing, under oath, and in accordance with the following definitions and instructions. Defendant is requested to produce the documents and things in its possession, custody, or control pursuant to the document requests.

Answers to the interrogatories and all documents and things responsive to the document requests must be served on the undersigned attorneys for The SCO Group, Inc., at the offices of Boies, Schiller & Flexner LLP, [address], within 30 days of service of these interrogatories and document requests.

DEFINITIONS AND INSTRUCTIONS

Plaintiff incorporates by reference all instructions, definitions, and rules contained in the Federal Rules of Civil Procedure. In addition, for purposes of these requests for production and these interrogatories, the following definitions and instructions apply:

A. Definitions

1. The terms "Novell," "Defendant," "you," "your," and any synonyms or derivatives thereof are intended to and shall embrace, collectively, and/or individually, Novell, Inc., and its parents, subsidiaries, divisions, or affiliates, and any corporate predecessor or successor of them, and in addition, all of Novell's attorneys and accountants, and all of its respective current or former agents, servants, associates, employees, representatives, investigators, officers, directors, and others who are or have been in possession of or may have obtained information for or on behalf of Novell in any manner with respect to any matter referred to in the pleadings in the

2

above-styled case. These terms shall include SuSE, both before and after its acquisition by Novell.

2. The terms "SCO," "Plaintiff," and any synonyms and derivatives thereof are intended to and shall embrace, collectively, and/or individually, The SCO Group, Inc., and its parents, subsidiaries, divisions, or affiliates, and any corporate predecessor or successor of them, and in addition, all of its attorneys and accountants, and all of its respective current or former agents, servants, associates, employees, representatives, investigators, officers, and directors.

3. A reference to a corporate entity by name, including without limitation Computer Associates International, Inc., Dell, Inc., Hewlett-Packard Company, Intel Corporation, Silicon Graphics, Inc., and Cray Computers shall include that entity's parents, subsidiaries, divisions, or affiliates, and any corporate predecessor or successor of them, and in addition, all of its attorneys and accountants, and all of its respective current or former agents, servants, associates, employees, representatives, investigators, officers, and directors.

4. The term "APA" shall mean the Asset Purchase Agreement by and between SCO's predecessor-in-interest, The Santa Cruz Operation, Inc. ("Santa Cruz"), and Novell, dated September 19, 1995, and any amendments and schedules thereto.

5. The term "Amendment No. X" shall mean the agreement by and among IBM, Santa Cruz, and Novell, dated October 16, 1996, concerning certain license agreements related to UNIX System V, including Software Agreement SOFT-00015 as amended,

3

Sublicensing Agreement SUB-00015A as amended, Software Agreement SOFT-00015 Supplement No. 170 as amended, and Substitution Agreement XFER-00015B.

6. The term "IBM Litigation" refers to The SCO Group, Inc. v. International Business Machines Corp., Case No. 03-CV-0294, in the United States District Court for the District of Utah.

7. The terms "UNIX license agreement" includes any UNIX System V software license agreement (such as IBM's Software Agreement SOFT-00015 as amended), sublicensing agreement (such as IBM's Sublicensing Agreement SUB-00015A as amended), related agreement, and any license by which UNIX System V licensees have distributed UNIX System V products in binary-code form.

8. The term "concerning" shall mean without limitation: about, relating to, referring to, reflecting, describing, evidencing, referencing, discussing, commenting on, constituting, connected with, or touching upon in any way.

9. The term "document" shall have the broadest possible meaning permitted by Federal Rules of Civil Procedure 26 and 34 and precedent, and shall include every record of every type including, without limitation, information stored on any electromagnetic storage device, or computer; any written, printed, typed, recorded, stored, or graphic matter, however produced, reproduced, or existing in the possession, custody, or control of Defendant, or any agent, employee, or attorney of the Defendant; and all drafts, notes, or preparatory material concerned with said document, and every additional copy of such record or document where such copy contains any commentary, notation, or other change whatsoever that does not appear

4

on the original or other copy of the document produced. The terms "document" shall include any summary of a document or documents called for hereafter.

10. The term "communication" shall mean any transmission, conveyance, or exchange of information, whether by written, oral, or other means. It shall include without limitation any meeting, discussion, contact, conference, telephone conversation, letter, e-mail transaction, Internet posting, memorandum, document, message, telegram, telefax, mailgram, billing statement, electronic recording, or other form of written or oral information transmission or exchange.

11. The term "person" shall be deemed to include natural persons, partnerships, firms and corporations, and all of their subsidiaries or divisions, and, in the case of partnerships, firms, and the corporations, the individual members or agents thereof.

12. With respect to any transaction, occurrence, or circumstance, the term "describe" shall mean, among other things, to set forth in detail the date, time, place, and persons involved in, and context, content, and substance of the transaction, occurrence, or circumstance.

13. The term "identify," when referring to any person, shall mean to (a) state that person's full name and current or last known address, home telephone number, work telephone number, and electronic mail address, and (b) indicate the basis for that person's knowledge of any allegations in the pleadings, including but not limited to the identification of documents and communications and a description of his or her personal involvement in any transaction, occurrence, or other activity relating to any allegation in the pleadings.

5

14. References to the singular include the plural, and references to the plural include the singular.

15. The term "any" includes "all," and the term "all" includes "any" and "each and every."

16. The term "and" includes "or," and vice versa.

B. Instructions

1. Information requested in these interrogatories shall include information within the knowledge or possession of any of Defendant's agents, employees, attorneys, investigators, or any other persons, firms, or entities directly or indirectly subject to Defendant's control in any way whatsoever.

2. Each interrogatory shall be answered in its entirety. If any interrogatory or subsection thereof cannot be answered in full, it shall be answered to the fullest extent possible with an explanation as to why a complete answer is not provided.

3. If there is a claim of privilege as to any communication concerning information requested by these interrogatories, specify the privilege claimed, the communication and/or answer to which the claim is made, the topic discussed in the communication and/or answer to which that claim is made, and the basis upon which the claim is asserted.

4. These interrogatories are continuing in nature and require supplemental or additional responses in accordance with Rule 33 of the Federal Rules of Civil Procedure.

5. All documents produced in response to these requests shall be produced in the same order as they are kept or maintained in the ordinary course of business and, where

6

multiple pages or documents are assembled, collated, grouped, or otherwise attached, shall not be separated or disassembled.

6. If there are no documents responsive to any paragraph or subparagraph set forth in the requests, please provide a written response so stating.

7. With respect to any document responsive to this request that is withheld from production based upon a claim of privilege, please provide the information required pursuant to Rule 26(b)(5) of the Federal Rules of Civil Procedure.

8. If, for reasons other than a claim of privilege, you refuse to produce any document requested herein, state the grounds upon which the refusal is based with sufficient specificity to permit a determination of the propriety of such refusal.

9. These requests are continuing and, pursuant to Rule 26(e) of the Federal Rules of Civil Procedure, require the further and supplemental production by Defendant whenever Defendant acquires, makes, or locates additional documents or information between the time of the initial production hereunder and the time of the trial in this action.

10. Documents responsive to more than one document request need not be produced more than once.

REQUESTED DOCUMENTS

Ownership of UNIX Copyrights
1. All documents concerning the APA.

2. All documents concerning the transactions set forth in the APA.

3. All documents (not included in the document requests above) concerning the transfer of copyrights from Novell to Santa Cruz as part of the APA.

7

4. All documents concerning Santa Cruz's transfer of its Server Software Division and Professional Services Division to SCO.

5. All documents (not included in the document requests above) concerning the transfer of copyrights from Santa Cruz to SCO.

6. All documents concerning any statement by SCO that it owns copyrights in UNIX and/or UnixWare.

7. All documents (not included in the requests above) concerning SCO's registration of copyrights in UNIX and/or UnixWare with the United States Copyright Office.

8. All documents concerning any alleged injury or damage to Novell as a result of any statement by SCO that it owns copyrights in UNIX and/or UnixWare.

9. All documents concerning any statement by Novell that it owns or does not own copyrights in UNIX and/or UnixWare.

10. All documents (not included in the document requests above) concerning Novell's registration of copyrights in UNIX and/or UnixWare with the United States Copyright Office.

11. All documents (not included in the document requests above) concerning Novell's press release of June 6, 2003, stating in part that Amendment No. 2 to the APA "appears to support SCO's claim that ownership of certain copyrights for UNIX did transfer to SCO in 1996."

12. All documents concerning the communications between Novell and SCO referenced at Paragraphs 38-39 of Novell's Counterclaims and Paragraphs 38-39 of SCO's Answer to Novell's Counterclaims.

8

13. All documents (not included in the document requests above) concerning the ownership of copyrights in UNIX and/or UnixWare.

14. All documents (not included in the document requests above) concerning the copyrights in UNIX and/or UnixWare.

Novell's Audit Rights

15. All documents concerning any audit by Novell of SCO pursuant to Section 1.2 of the APA.

16. All documents concerning Novell's audit rights under Section 1.2 of the APA.

17. All documents concerning Novell's right to royalties under Section 1.2 and 4.16 of the APA.

18. All documents concerning SCO's obligations under Section 1.2 and 4.16 of the APA.

19. All documents concerning SCO's compliance with its obligations under Section 1.2 and 4.16 of the APA.

20. All documents concerning SCO's remittance of royalties to Novell pursuant Sections 1.2 and 4.16 of the APA.

21. All documents concerning SCO's administration of royalties referenced in Sections 1.2 and 4.16 of the APA.

22. All documents concerning Novell's requests for "information and documentation" referenced in Paragraphs 67-73 of its Counterclaims, including but not limited to all communications leading to or relating to such requests.

9

UNIX License Agreements and Other Agreements
23. All documents concerning SCO's rights or claims under any UNIX license agreement, including but not limited to SCO's alleged right to terminate its UNIX license agreements with IBM, Sequent, or any other licensee, and SCO's alleged right to revoke any licensee's rights under its UNIX license agreements.

24. All documents concerning SCO's alleged termination of any UNIX license agreement.

25. All documents concerning SCO's alleged revocation of any licensee's rights under its UNIX license agreement.

26. All documents concerning Novell's purported rights under Section 4.16 of the APA, including but not limited to Novell's purported "prior approval" and "veto" rights and right to waive, or to direct SCO to waive, any of SCO's rights or claims under any UNIX license agreement.

27. All documents concerning SCO's agreements with Sun and Microsoft referenced in Paragraph 50 of Novell's Counterclaims and Paragraph 50 of SCO's Answer to Novell's Counterclaim.

28. All documents concerning the SCOsource program, including but not limited to documents concerning SCO's intellectual property licenses with Linux end-users.

29. All documents (not included in the document requests above) concerning Novell's rights and obligations under Section 4.16 of the APA.

30. All documents (not included in the document requests above) concerning SCO's rights and obligations under Section 4.16 of the APA.

10

31. All documents (not included in the document requests above) concerning Section 4.16 of the APA.

32. All documents concerning the "Linux Indemnification Program" identified in Paragraph 19(j) of Novell's Answer dated July 29, 2005.

APA Amendments, Amendment No. X, TLA

33. All documents (not included in Document Request No. 1 above) concerning Amendment No. 1 to the APA, including but not limited to all communications concerning that Amendment.

34. All documents (not included in Document Request No. 1 above) concerning Amendment No. 2 to the APA, including but not limited to all communications concerning that Amendment.

35. All documents concerning the "Amendment" executed by Novell and IBM on April 26, 1996, related to IBM's UNIX Software Agreement and related agreements, including but not limited to all communications concerning that "Amendment."

36. All documents concerning the transaction set forth in the "Amendment" referenced in Document Request 35 above, including but not limited to all communications concerning that transaction.

37. All documents concerning Amendment No. X, including all communications concerning that Amendment.

38. All documents concerning the transaction set forth in the Amendment No. X, including all communications concerning that transaction.

11

39. All documents concerning any buyout granted to any UNIX licesee after April 26, 1996, of its royalty obligations under its UNIX license agreements, including but not limited to all documents concerning any such buyout granted to Hewlett-Packard Company, Silicon Graphics, Inc., or Cray Computers.

40. All documents concerning the Technology License Agreement between Novell and Santa Cruz executed on December 6, 1995 (the "TLA").

41. All documents concerning the transaction set forth in the TLA.

Other Relevant Topics

42. All communications concerning the IBM litigation and/or this litigation, including but not limited to all communications involving Novell and any one or more of the following parties: Computer Associates International, Inc., Dell, Inc., Hewlett-Packard Company, Intel Corporation, IBM, Oracle Corporation, and Silicon Graphics, Inc.

43. All communications concerning copyrights in UNIX and/or UnixWare subsequent to the execution of the APA, including but not limited to all communications involving Novell and any one or more of the following parties: Computer Associates International, Inc., Dell, Inc., Hewlett-Packard Company, Intel Corporation, IBM, Oracle Corporation, and Silicon Graphics, Inc.

44. All communications involving Novell and any one or more of the following parties concerning Novell's alleged rights to waive, or direct SCO to waive, SCO's rights or claims under any UNIX license agreement: Computer Associates International, Inc., Dell, Inc., Hewlett-Packard Company, Intel Corporation, IBM, Oracle Corporation, and Silicon Graphics, Inc.

12

45. All communications involving Novell and any one or more of the following parties concerning Novell's alleged right to amend, supplement, modify, or waive rights under any UNIX license agreement, or Novell's alleged right to direct SCO to amend, supplement, modify, or waive rights under any UNIX license agreement: Computer Associates International, Inc., Dell, Inc., Hewlett-Packard Company, Intel Corporation, IBM, Oracle Corporation, and Silicon Graphics, Inc.

46. All communications involving Novell and any one or more of the following parties concerning SCO, Linux, AIX or Dynix: Computer Associates International, Inc., Dell, Inc., Hewlett-Packard Company, Intel Corporation, IBM, Oracle Corporation, and Silicon Graphics, Inc.

47. All communications involving Novell and any one or more of the following parties concerning the APA: Computer Associates International, Inc., Dell, Inc., Hewlett-Packard Company, Intel Corporation, IBM, Oracle Corporation, and Silicon Graphics, Inc.

48. All documents (not included in the document requests above) concerning the IBM litigation.

49. All documents (not included in the document requests above) concerning this litigation.

50. All documents concerning any investment by IBM in Novell's Linux business, including IBM's $50 million investment in Novell's purchse of SuSE Linux.

51. All documents concerning both Novell's acquisition of SuSE Linux and any one or more of the following: UNIX, UnixWare, the copyrights in UNIX and/or UnixWare, the APA (including without limitation its Amendments and the rights and obligations under

13

Section 1.2 or Section 4.16 of the APA), the "Amendment" referenced in Document Request No. 35 above, Amendment No. X, the TLA, SCO, IBM, the IBM litigation, and this litigation.

52. All documents concerning any one or more of Novell's Affirmative Defenses set forth in its Answer dated July 29, 2005 (Privilege, Estoppel, Unclean Hands, Laches, Comparative Fault, Failure to Mitigate, Absence of Causation, and the First Amendment).

53. All documents used, referred to, identified, and/or relied upon in responding to SCO's First Set of Interrogatories (below).

INTERROGATORIES

1. State all bases for and evidence (including extrinsic) in support of Novell's allegation in Paragraphs 24 and 25 of its Counterclaims that Amendment No. 2 "merely amends" or "modified" the APA.

2. State all bases for and evidence (including extrinsic) in support of your view that the term "SVRX Licenses," as used in Section 4.16 of the APA, includes "all contracts relating to the various UNIX system releases and auxiliary products enumerated at Schedule 1.1(a)(VI) and Attachment A to Amendment No. 1," including without limitation your definition, as well as any binding definition found anywhere, for that term.

3. Further to Novell's statement in Paragraph 43 of its Counterclaims that "Novell has not acquiesced to SCO's claims" of ownership of the UNIX copyrights, identify any instances between the date of the execution of the APA and late 2002 when (a) Novell

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asserted ownership of copyrights in UNIX and/or UnixWare, and/or (b) contested SCO's claims of ownership of those copyrights or open and public conduct as the purported owner of those copyrights, including SCO's claims and conduct identified in Paragraphs 72-82 of its proposed Second Amended Complaint. Describe each such instance, if any, in detail, including without limitation the name of each person asserting or contesting ownership; the nature and substance of Novell's claim; SCO's claim or conduct to which Novell's claim responded, if any; the means by which Novell's claim was communicated and to whom; the identity of any documents (by Bates range or filename) concerning Novell's claim; and the date of each instance.

4. State all bases for and evidence in support of Novell's allegations in its Counterclaims that between late 2002 and early 2003, SCO "repeatedly asked Novell to transfer the [UNIX] copyrights to SCO," "repeatedly contacted Novell and asked Novell to amend the Novell-Santa cruz agreement to give SCO the UNIX Copyrights," and requested that Novell participate in an alleged "scheme" to "extract licenses from the UNIX and Linux communities." Among other things, identify and describe each communication in which SCO made any such request, including without limitation the persons involved in each communication; the date, means, and substance of each communication; and any documents (by Bates number of file name) concerning that communication.

5. Identify all current or former Novell employees, representatives, and/or agents who may have or may have had any knowledge concerning SCO's compliance with Section 1.2 and/or section 4.16 of the APA, including person responsible for or involved in

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auditing, monitoring, reviewing, evaluating, recording, communicating, or reporting on SCO's compliance or lack thereof with those provisions.

DATED this 11th day of January, 2006.

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

BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Stuart H. Singer
Stephen N. Zack

Edward Normand

By ____[signature of Mark F. James]_________

COunsel for The SCO Group, Inc.

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