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Novell's Evidentiary Objections to SCO's Exhibits, and more...
Tuesday, May 15 2007 @ 11:44 PM EDT

Several new filings in SCO v. Novell today. Novell has a redacted memorandum in opposition to SCO's Motion for Summary Judgment on Novell's 1st, 2nd and 5th Causes of Action and for Summary Judgment on Novell's First Counterclaim, but the most interesting is a type of filing we haven't seen before, Novell's Evidentiary Objections to SCO's Summary Judgment Exhibits [PDF].

Novell wants the testimony disregarded on various grounds from all those folks who swore under penalty of perjury that the APA doesn't mean what it plainly says. "Novell's objections are based on five grounds: inadmissable parol evidence, lack of personal knowledge, hearsay, the best evidence rule, and improper authentication."

Man, this litigation has a little taste of absolutely everything. You'll also see on page one why the Novell team added a California lawyer. I couldn't have picked a better case to explain how litigation works.

Novell explains all five grounds to start off, and most are self-evident, but the best evidence rule is essentially that courts should accept the best evidence of a writing a party is seeking to prove, like a contract. If you have the original document, that would be the best evidence of its contents, not a Xerox copy, and not a bunch of people swearing up and down on a Bible that they remember it differently.

SCO has offered testimony, Novell charges, "that purports to recite the contents of the APA, its Amendments, and UNIX licensing agreements, but which does not accurately recite the contents of those agreements." Like saying copyrights were transferred when the APA says they were excluded. That testimony should be excluded, Novell says, because the agreements themselves are the best evidence of their contents.

The parol evidence rule is the rule that a clear agreement trumps (and excludes) testimony that contradicts it, like R. Duff Thompson contradicting the APA's exclusion of copyrights. They mention him also in connection with lack of personal knowledge, because he wasn't involved in drafting the relevant clauses in the APA. Same with Doug Michels, William Murphy, Lawrence A. Bouffard, Steven Sabbath, Jim Wilt, William Broderick, the paralegal Kim Madsen, Alok Mohan, John Maciaszek, Geoff Seabrook, Robert Frankenberg, Jay Peterson, Burt Levine, Jean Acheson, and Ed Chatlos. Novell wants it all excluded and disregarded.

Oh, and Darl McBride's testimony too. "Throughout his testimony, and without foundation, Mr. McBride offers inadmissable speculation as to the responsibilities, actions, and intentions of Santa Cruz, Novell, Baystar, and IBM." I'll say. All the ugly innuendo I refused to type up -- it's all hearsay, Novell points out, and inadmissable.

Maureen O'Gara's nasty speculations about Chris Stone -- Novell says her testimony is inadmissable on three grounds, parol evidence rule, lack of personal knowledge, and best evidence rule. "The excerpt of Ms. O'Gara's testimony contains speculation as to the intentions of others, including Novell and Chris Stone. Accordingly, her testimony lacks personal knowledge, and must not be considered." I told you. You can't pull in court the kinds of snarky innuendo one might publish in one's own newsletter. I don't think you should do it anywhere, but courts can call you on it. Courts are not interested in what you think someone meant. They want to know what you said and what you saw. Period. Well, there are some exceptions. If you heard someone blurt out, immediately after hearing a gunshot, "Omigod, I think I killed someone," the court probably wants to hear about that. Here are the Federal Rules of Evidence, if you'd like to dig deeper. You'll see hearsay and lack of personal knowledge there, along with authentication requirements. Here's a brief definition of the hearsay rule, which explains the exceptions, some of which I have no doubt SCO will claim in Ms. O'Gara's case at least.

Novell offers SCO no quarter, no matter how small the issue. Improper authentication in this case is that SCO neglected to get signatures on some declarations or didn't have them notarized properly. I think Novell's lawyers have observed that the other side isn't so detail-oriented. Geoff Seabrook's declaration wasn't signed or dated. That may seem like a small thing, and in one sense it is, but actually, it's kind of shocking. Imagine if lawyers could submit documents to a court that are not signed or dated or notarized. The creative firms, shall we say, could have a ball, lying from here to China. So courts require that documents be authenticated, so they know the person really said it and signed it and means it.

The introduction to Novell's evidentiary objections goes like this:

Defendant and Counterclaim-Plaintiff Novell, Inc. ("Novell") hereby objects to and requests the Court to strike and disregard for all purposes the following evidence presented by Plaintiff and Counterclaim-Defendant The SCO Group, Inc. ("SCO") in its Motion and Memorandum in Opposition to Novell's Motion for Partial Summary Judgment on its Fourth Claim for Relief, and in Support of SCO's Cross Motion for Partial Summary Judgment, PACER Nos. 213, 224 ("1/17/07 Cross Motion"), its Reply in Support of its 1/17/07 Cross Motion ("3/19/07 Reply"), and its Motion and Memorandum in Support of its Motion for Partial Summary Judgment on its First, Second, and Fifth Causes of Action, and for Summary Judgment on Novell's Fifth Counterclaim, PACER Nos. 258-259 ("4/9/07"). Novell's objections are based on five grounds: inadmissable parol evidence, lack of personal knowledge, hearsay, the best evidence rule, and improper authentication.

I linked to the documents, all PDFs, that Novell is talking about, so if you wish you can follow along with their objections closely. Here are all the new filings with the Docket information and exhibits:

05/14/2007 292 -
Defendant's MEMORANDUM in Opposition re 258 MOTION for Summary Judgment (Partial) on SCO's First, Second and Fifth Causes of Action and for Summary Judgment on Novell's First Counterclaim MOTION for Summary Judgment (Partial) on SCO's First, Second and Fifth Causes of Action and for Summary Judgment on Novell's First Counterclaim [REDACTED] filed by Defendant Novell, Inc.. (Attachments: # 1 Exhibit A-Response to SCO's Statement of Facts # 2 Exhibit B # 3 Exhibit C)(Sneddon, Heather) (Entered: 05/14/2007)

05/14/2007 293 -
DECLARATION of James McKenna re 292 Memorandum in Opposition to Motion,, filed by Novell, Inc.. (Sneddon, Heather) (Entered: 05/14/2007)

05/14/2007 294 -
NOTICE OF CONVENTIONAL FILING of (Sealed Memorandum in Opposition & Sealed/Redacted Supplemental Declaration) filed by Defendant Novell, Inc. (Sneddon, Heather) (Entered: 05/14/2007)

05/14/2007 295 - **SEALED DOCUMENT** MEMORANDUM IN SUPPORT re 292 Memorandum in Opposition to Motion for Partial Summary Judgment on SCO's First, Second, and Fifth Causes of Action and for Summary Judgment on Novell's First Counterclaim (Copyright Ownership) filed by Defendant Novell, Inc.. (No document attached.) (blk) (Entered: 05/15/2007)

05/14/2007 296 - **SEALED DOCUMENT** SUPPLEMENTAL DECLARATION of Kenneth W. Brakebill in Opposition to SCO's Motion for Summary Judgment filed by Defendant Novell, Inc.. (No document attached.) (blk) (Entered: 05/15/2007)

05/14/2007 297 - REDACTION to [296] Sealed Supplemental Declaration of Kenneth W. Brakebill by Defendant Novell, Inc.. (Exhibits not attached in this image due to overlength size.) (blk) (Entered: 05/15/2007)

05/15/2007 298 - OBJECTIONS to [213] Sealed Document, 258 MOTION for Summary Judgment (Partial) on SCO's First, Second and Fifth Causes of Action and for Summary Judgment on Novell's First Counterclaim MOTION for Summary Judgment (Partial) on SCO's First, Second and Fifth Causes of Action and for Summary Judgment on Novell's First Counterclaim, 224 Cross MOTION for Partial Summary Judgment on Novell's Fourth Counterclaim, 259 Memorandum in Support of Motion, [Evidentiary Objections to SCO's Summary Judgment Exhibits] filed by Defendant Novell, Inc.. (Attachments: # 1 Exhibit A # 2 Exhibit B)(Sneddon, Heather) (Entered: 05/15/2007)


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