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Declaration of Brent Hatch in SCO v IBM
Thursday, March 01 2007 @ 09:17 AM EST

PACER shows a new filing by The SCO Group in the IBM litigation, a declaration by Brent Hatch [PDF] along with an exhibit [PDF] containing a portion of the February 16, 2007 deposition of Lawrence Bouffard in the Novell case.

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

Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[Address]
[Telephone]
[Facsimile]

Stuart H. Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[Address]
[Telephone]
[Facsimile]

Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[Address]
[Telephone]
[Facsimile]

Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[Address]
[Telephone]
[Facsimile]

Attorneys for The SCO Group, Inc.

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.

SUPPLEMENTAL DECLARATION
OF BRENT O. HATCH

Case No. 2:03CV0294DAK

Honorable Dale A. Kimball
Magistrate Judge Brooke C . Wells

1

I, Brent O. Hatch, declare as follows:

1. I am a citizen of the United States, am over the age of 21, and am competent to testify to the matters set forth herein.

2. I am an attorney at law duly licensed to practice before all the Courts of the State of Utah, and an attorney with the firm Hatch, James & Dodge, P.C., and counsel for The SCO Group, Inc. ("SCO") in the lawsuit against International Business Machines Corporation ("IBM"), titled The SCO Group, Inc. v. International Business Machines Corporation, Civil No. 2:03CV-0294 DAK (D. Utah 2003).

3. This Supplemental Declaration is submitted in support of Plaintiff/Counterclaim- Defendant SCO's various motions for summary judgment.

4. Submitted herewith as Exhibit 389 is a true and correct copy of excerpts from the February 16, 2007 deposition of Lawrence Bouffard in the litigation titled The SCO Group, Inc. v. Novell, Inc., Civil No. 2:04CV00139 DAK (D. Utah 2004).

I declare under the penalty of perjury that the foregoing is true and correct.

Executed this 28th day of February 2007.

Salt Lake City, Utah

/s/ Brent O. Hatch
Brent O. Hatch

2

CERTIFICATE OF SERVICE

Plaintiff/Counterclaim-Defendant, The SCO Group, Inc., certifies that a true and correct copy of the foregoing was served on Defendant/Counterclaim-Plaintiff, International Business Machines Corporation, on this 28th day of February, 2007, via CM/ECF to the following:

David Marriott, Esq. ([email address])
Cravath, Swaine & Moore
[address]

Todd Shaughnessy, Esq. ([email address])
Snell & Wilmer LLP
[address]

/s/ Brent O. Hatch

3

EXHIBIT 389

1

Deposition of LAWRENCE BOUFFARD

Date:February 16, 2007
Volume: 1

Case: SCO v. NOVELL

SHARI MOSS & ASSOCIATES
[address]
[phone]
[fax]

2

Page 57

BY MR. JACOBS:

Q. Let's break it down a little bit.

Do you see that, first of all, Exhibit 61 is a declaration that you executed on November 10th, 2003?

A. I do.

Q. And you see that you'd executed it under penalty of perjury?

A. I do.

Q. And you understood what "penalty of perjury" meant when you executed it?

A. I did.

Q. You understood this was a serious -- executing this was a serious matter?

MR NORMAND: Objection to form.

THE WITNESS: I did.

BY MR. JACOBS:

Q. And at the time you executed it, you studied it, and, to the best of your knowledge and belief at the time, it represented your understanding?

MR. NORMAND: Objection to form.

THE WITNESS: It was not written by me. You know how these things go. It was provided to me, and I was asked, "Is this an accurate representation of what you said when you met with us?"

3

Page 58

The first go-round, there were several sections that were completely objectionable and wrong. Actually, they didn't reflect what I said, and it was clear that it was trying to get me to say something that they wanted to hear.

So I didn't sign it the first go-round, I sent it back to them. And they said, "Well, which paragraphs do you have a problem with?" And I told them.

I got another draft, and it still was not what I had said. So I asked them to strike some things, I believe they did, and then we went back and forth a few times.

By the last time reading over it, I read it over at that point a little weary of it from the standpoint of, "well, I guess you could interpret what I said that way." Because that's what I was being asked to do: Did we interpret you that way.

It's not really a statement of my words. And I understand they never really are -- well, not never. It's only a couple of times I've done this. But this was particularly difficult working with them, trying to get it to be how I would characterize things. It became a negotiation of my words rather than a document of my own words.

4

Page 59

BY MR. JACOBS:

Q. Why did you sign it?

A. I signed it -- I said, "Well, I guess you could interpret what I said that way. There are some things that I would have said differently." But at that point, I just got kind of tired of the process, and I said that's, you know, close enough.

Q. Close enough that you were comfortable signing it under penalty of perjury that it was true and correct?

MR. NORMAND: Objection to form.

THE WITNESS: Correct.

BY MR. JACOBS:

Q. If you skip ahead in the document -- it looks like it's about a third of the way through -- you'll come to the Asset Purchase Agreement. It's after the last of the UNIX licensing documents that are attached to the agreement.

The next document. Let me give you a clip to make it easier.

So this is, in fact, what you understood to be the Asset Purchase Agreement when you executed the declaration?

A. Yes.

Q. And what you understood to be an Asset

5

Page 120

time is 1:56.

EXAMINATION

BY MR. NORMAND:

Q. Good afternoon, Mr. Bouffard.

A. Good afternoon.

Q. Towards the end of his questions, Mr. Jacobs referred to a second declaration that you executed. Do you recall that?

A. Yes, I do.

MR. NORMAND: I want to mark that declaration as an exhibit. And it's been marked as Exhibit 1060.

(Plaintiff/Counterclaim-Defendant's Exhibit No. 1060 was marked for identification.)

BY MR. NORMAND:

Q. The signature line of the declaration is dated November 8th, 2006, with your signature.

Did you execute this document on that date?

A. Yes, I did.

Q. And this was the declaration you executed after the process that you described to Mr. Jacobs earlier; is that right?

A. That's correct.

Q. How did that process compare to the process by which you executed your IBM declaration?

A. This process was much more friendly, less

6

Page 121

adversarial, and did not seem to have an overt agenda to establish certain points.

Q. Have you had occasion to read Exhibit 1060 in the recent past?

A. Yes, I have.

Q. Is there any language in the exhibit that does not reflect your -- doesn't accurately reflect your views of the issues that are addressed therein?

A. I don't believe so.

Q. I wanted to direct your attention, Mr. Bouffard, to paragraph 29.

A. Okay.

Q. You see in the first paragraph, "Although I did not negotiate the 1995 Asset Purchase Agreement APA for Novell, I had an understanding of the transaction given my job responsibilities at the time, which involved selling UNIX products. My understanding was that Novell sold its UNIX business to Santa Cruz lock, stock and barrel, and Novell only retained the right to continue receiving binary royalties paid by then-existing UNIX licensees for their distribution of binary products based on their UNIX flavor pursuant to their UNIX sublicensing agreements (the binary royalty stream)." End quote.

Do you see that paragraph?

7


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