Well, here we go again. Novell now accuses SCO of trying to smuggle in some evidence and expert reports after the deadline in the Novell case too. That gives you the tone in this extraordinary filing, Novell's Evidentiary Objections to SCO's Exhibits Submitted in Support of its Summary Judgment Oppositions Filed May 18, 2007 [PDF]. (Exhibit A, Part 1; Exhibit A, Part 2; Exhibit A, Part 3; Exhibit A, Part 4, all PDFs.)
It's a smoker, and untimeliness and withheld discovery are not the only issues Novell raises. These are not the same evidentiary objections list we saw earlier, although there is some duplication in types of violations listed. The first list had only five items taken from the Federal Rules of Evidence. This is a new collection, outlining new and additional violations, from Novell's perspective, of materials in SCO memoranda in opposition and in exhibits attached to those documents that SCO filed on May 18. These were sealed exhibits for the most part, but as usual, we find out a bit about what they were anyway.
Novell's introduction says it objects to SCO's evidence in its May 18, 2007 opposition briefs and asks the court "to strike and disregard for all purposes" that evidence, based on ten, count them, ten grounds:
- relevance (including inadmissible parol evidence)
- lack of personal knowledge
- the best evidence rule
- improper expert opinion
- improper use of SCO v. IBM deposition testimony
- improper authentication
- improper use of settlement evidence, and
- improper use of withheld discovery
I've marked the new grounds for which Novell would like this evidence stricken, and let's take a look at them in more detail. It's quite a list.
Novell is telling the court that not only is SCO violating evidentiary rules like the parol evidence and hearsay rules it mentioned last time, in addition Novell accuses SCO of new types of misbehavior. Novell therefore asks the court to toss out a long list of sealed exhibits attached to the Declaration of Mark James, number 298 on Pacer: Exhibits 10, 11, 17, 18, 12, 13, 19, 20, 21, 22, 6, 15, 33, 34, 37, 7, 14, 26, and 66, as well as Exhibits 30 and 32, "newly-cited" but not attached. That includes the declarations of R. Duff Thompson, Doug Michels, Ed Chatlos, Jim Wilt, Kim Madsen, William Broderick, John Maciaszek, Darl McBride (11/10/06 version), and Jay Petersen, as well as Maureen O'Gara's deposition transcript and the deposition transcripts of Burt Levine, Alok Mohan, Robert Frankenberg, Thompson, Michels, Chatlos, Wilt, Madsen, and Broderick.
Is that not pretty much the entire kit and kaboodle? No, there is much more, as I'll show you. I don't know why SCO would try some of the same tricks it was sanctioned for by the same court, same judge, in IBM, since it seems counterproductive. But there you are. Maybe it's like dancing. Some folks can waltz, but they can't tango. So whatever music is playing -- tango, two-step, salsa, or waltz -- you'll find them waltzing around the room again.
I know some of you are saying, "It is about time somebody told the court what they do." You may hope that the penalty is that the lawyers are marched out and shot at dawn. No. Nothing like that happens. But there certainly can be a penalty. What the penalty can be is that you don't get to use the evidence, because of your improper conduct, and that can mean you lose your motion or your case. Whether that will happen here is impossible to say, but it happened to SCO in the IBM litigation (of course they are trying to get the court to reverse it), and it's the same judges. Even if not everything on Novell's list gets the judge's agreement, it surely will get his attention.
The SCO briefs that are affected, or would be, if the judge accepts Novell's point of view are:
- SCO's Memorandum in Opposition to Novell's Motion for Summary Judgment on SCO's First and Third Claims for Relief
SCO's Memorandum in Opposition to Novell's Motion for Partial Summary Judgment on SCO's Non-Compete Claim in its Second and Fifth Claims for Relief
SCO's Memorandum in Opposition to Novell's Motion for Summary Judgment on SCO's First Claim for Slander of Title Based on Failure to Establish Special Damages
SCO's Memorandum in Opposition to Novell's Motion for Partial Summary Judgment on the Copyright Ownership Portions of SCO's Second and Fifth Claims for Relief
The SCO filings and exhibits with these filings are all listed on the docket as numbers 299 through 320. Let's take a look at what Novell says SCO shouldn't be allowed to use and why.
Improper Expert Opinion
My personal favorite. I was wondering if someone would raise this.
Novell lays out the Federal Rule of Evidence that applies, 702, which basically says an expert can't just guess or go off on tangents and must use reliable principles and methods so his or her testimony is based on something reliable and is related to the facts of the case:
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.
Furthermore, Rule 56(e) says that experts must do more than present admissible facts, since they are not fact witnesses:
(e) Form of Affidavits; Further Testimony; Defense Required.
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
You have to establish, then, that your expert is qualified to testify to the matter addressed. Experts are expected to stand on a firm foundation but one that others can look at. They can't just say, "It's my expert opinion that the moon is made of blue cheese. It is true, because I say so and I'm an expert." After all, since Biblical times, it has been possible to hire false witnesses in court disputes to lie, so the rules require that experts show how they reached a conclusion, so the value of what they say can be tested. One case Novell quotes puts it this way:
It will not do to say that it must all be left to the skill of experts. Expertise is a rational process and a rational process implies expressed reasons for judgment. An opinion has a significance proportioned to the sources that sustain it. An expert who supplies nothing but a bottom line supplies nothing of value to the judicial process. See Richardson v. Richardson-Merrell, Inc., ... holding that an expert's declaration, full of assertion but empty of facts and reasons, won't get a case past a motion for summary judgment, for the judge must "look behind [the expert's] ultimate conclusion ... and analyze the adequacy of its foundation." Mid-State Fertilizer Co. v. Exchange Nat'l Bank.
As for SCO's experts in this case, Novell says this:
Here, the expert testimony offered by SCO's witnesses is not based on sufficient facts or data, employs the wrong method, and does not apply the method reliably to the facts of this case. In addition, the expert reports of Evan Ivie and Thomas Cargill are not even from the current litigation, but from SCO v. IBM to which Novell is not a party. They are therefore improper in this case.
As for Gary Pisano, Novell says bluntly, "Mr. Pisano is not qualified as an expert, and his proffered testimony lacks the requisite foundation for admissibility on summary judgment." That doesn't, by the way, mean he couldn't become qualified; I believe Novell is saying SCO failed to take the proper procedural steps to qualify him to serve in a legal sense as an expert in this particular case. Paul Moxley also "is not qualified as an expert in this matter," Novell says, and "his testimony is inadmissible hearsay". Ditto Christine Botosan. In any case, SCO is too late with these experts reports, even if they did qualify as experts in these matters. You'll recall Novell has also filed a motion to strike a Mark James Supplemental Declaration, with two new expert reports attached, filed on May 30 (due May 18) and Novell wrote:
The James Declaration attaches over 60 pages of expert reports from Christine Botosan and Gary Pisano to which Novell has not had any opportunity to respond. SCO provided no warning to Novell that it would be submitting this new evidence on the eve of the hearing, and has not provided any excuse for why the expert reports were not filed along with its May 18th opposition papers. Indeed, SCO did submit conclusory declarations from Drs. Pisano and Botosan with its original opposition papers.
I'm guessing that SCO filed those two reports fleshing out their case after they read these Evidentiary Objections which called their previous expert reports conclusory and therefore not usable. We are only getting to read this redacted version now, but SCO got the original some time ago.
Improper Use of SCO v. IBM Deposition Testimony
Novell also charges SCO with trying to use depositions from the IBM case, but Novell wasn't in attendance at those depositions, so that is improper, it says:
Federal Rule of Civil Procedure 32(a) provides '[a]t the trial or upon hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof.' (emphasis added.) this rule 'impliedly prohibits the use of a deposition against any party who was not present or represented at the taking of such deposition or who had no reasonable notice thereof.' Hewitt v. Huttler.... Here, SCO is attempting to use four SCO v. IBM deposition transcripts against Novell, who was not a party to that litigation, was not present for those depositions, and had no notice of them.
You can see why you'd want a rule like that, in that you'd naturally want to be able to question the deposed person yourself in the context of the new litigation. Here's 32(a), if you'd like to verify.
This came up last time, but it's quite amazing to me that
Novell says that SCO has offered "unsigned letters and agreements" as if that could ever be evidence. The rule here is 901. Novell quotes this part:
The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
I'm sure you can figure out what the opposite of that would be. How would you ever know if a document was real or made up, if there were no rules regarding authentication? It's not that you can never offer an unsigned document, by the way, but you certainly have to demonstrate its authenticity somehow. For example, the rule explains that you could offer testimony. Like with a will, let's say the signed original is lost. You could have the witnesses who signed it the day it was executed come forward with testimony that a Xerox copy of the will even though it isn't signed or dated by the decedent is identical to the original that the witnesses signed. What you can't do is just throw it in the pot and call it good when there is no authentication.
What didn't SCO authenticate? I see that, for one, it attached an unsigned December 2003 "Letter to Linux Users" as Exhibit 47. How would one know if the signed ones read the same? There are other issues with it Novell lists, like hearsay and best evidence rule, of course.
There was a court deadline, and SCO missed it. "Evidence submitted after a court-imposed filing deadline must not be considered absent a showing of good cause," Novell points out, and from the cases cited, I think they are referring to expert reports. "We wanted to sandbag Novell" won't fly as good cause.
Improper Use of Settlement Evidence
This section is so highly redacted, I can only guess from a case Novell mentions that it is referring to something in a settlement or settlement discussions with a third party. There must be a story there, but I don't yet know what it is. This is a bookmark, then, to remember that later if more details come out, this is where they go. [ Update: Dr Stupid believes he has it figured out, and I think he is right, that it likely refers to the settlement of the dispute between Novell and Santa Cruz over the 1996
IBM buyout, the dispute which ended in Amendment X.]
The general rule, 408, is that parties to litigation should be able to speak freely in settlement negotiations, which are typical in litigation in the beginning and often when one side notices it is going to get massacred if it goes forward, typically after a ruling goes against them or after summary judgment motions do. But it many times can happen too that the negotiations ultimately don't work out, and it's back to the litigation battle, and neither side is supposed to use certain things revealed in those settlement talks. For example, you can't say, "The other side offered us beellions of dollars in settlement talks, so they must know they are guilty." You can understand why. If there was no such rule, no one would ever try to negotiate a settlement, and that's against everyone's best interest. Here's how Federal Rule of Evidence 408 reads:
Rule 408. Compromise and Offers to Compromise
(a) Prohibited uses.— Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:
(1) furnishing or offering or promising to furnish or accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise the claim; and
(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.
Permitted uses. This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice ; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.
Improper Use of Withheld Discovery
We know about this topic from the IBM case, where the Federal Rule of Civil Procedure 37 came into play in a big way. It's the rule that says if you don't play by the discovery rules, you can't use withheld discovery materials at trial or in summary judgment motions. Novell cites in particular 37(d):
(d) Failure of Party to Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection.
If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails (1) to appear before the officer who is to take the deposition, after being served with a proper notice, or (2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, or (3) to serve a written response to a request for inspection submitted under Rule 34, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under subparagraphs (A), (B), and (C) of subdivision (b)(2) of this rule. Any motion specifying a failure under clause (2) or (3) of this subdivision shall include a certification that the movant has in good faith conferred or attempted to confer with the party failing to answer or respond in an effort to obtain such answer or response without court action. In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
The failure to act described in this subdivision may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has a pending motion for a protective order as provided by Rule 26(c).
What is the withheld discovery here? Do you remember reading the emails back and forth about whether SCO would answer Interrogatory 15? They finally did, but this time it's about Novell's Interrogatory 9, and Novell says SCO is offering as evidence materials it never mentioned before, as it should have, in response to that Interrogatory:
Federal Rule of Civil Procedure 37 bars the use of certain withheld evidence at trial or on summary judgment. Specifically, Rule 37(d) states that if a party fails "to serve answers or objections to interrogatories submitted under Rule 33 after proper service of the interrogatories . . . the court. . . may make such orders in regard to the failure as are just," including excluding that evidence at trial. Novell asked SCO in its Interrogatories to "state all facts, evidence, and bases" in support of their allegation that the parties intended the APA to transfer the copyrights, for example. (Second Supplemental Declaraton of Kenneth Brakebill... Ex. 10, Interrogatory No. 9.) SCO's response did not identify certain documents which it has included as Exhibits to the James Declaration here and relied upon as evidence of the parties' intention in the APA. Accordingly, under Rule 37, SCO should not be permitted to rely upon those documents now....
In addition, under the Federal Rules of Procedure 30(b)(6), SCO had a duty to designate persons to testify on its behalf "as to matters known or reasonably available to the organization." For example, SCO designated Erik Hughes as its witness on the topic of damages, including potential lost SCOsource customers, who testified at page 30 of Exhibit 65:
Q: Does SCO know of any other companies that it contends declined a SCOsource license and cited Novell as a reason?
Ms. BACH BORUCHOW: Objection.
THE WITNESS: I don't know of any other companies that SCO is aware of that they haven't made available.
Nowhere in that deposition does the witness identify Dell as a potential SCOsource customer, much less one that declined a license because of Novell. Yet a subsequent (and recent) declaration of SCO's CEO, Darl McBride, is replete with statements regarding SCO's knowledge of Dell's SCOsource intentions. This improperly withheld information should therefore be excluded.
Novell lists some other cited materials it also objects to on the same grounds, like
Santa Cruz's long-ago EU complaint against Microsoft and a deposition transcript of Joseph LaSala, Exhibit 40. Also SCO has offered some correspondence with Merrill Lynch, which Novell also objects to citing the hearsay rule.
All the Rest
And Novell objects to the deposition transcript dated 10/6/04 of Larry Gasparro, Exhibit 56, on the grounds of lack of personal knowledge and hearsay. Well, double hearsay actually. And further the testimony by Gasparro was from the IBM case, so it's not proper either. I wonder. Couldn't they get Gasparro to agree to be deposed again? The depositions of Gregory Pettit, Phillip Langer, Ed Chatlos and Duff Thompson, Exhibits 57, 58, 68 and 69, and two from Ryan Tibbits, Exhibits 59 and 63, are also objected to on similar grounds. Novell objects to the deposition transcripts of Chris Sontag, all three of them (3/14/07, 4/30/07 and 5/18/07, Exhibits 60, 64, and 80) on the additional ground of relevance. He throughout his testimony, Novell writes, and without foundation, "offers inadmissible speculation."
That is the SCO hallmark, as far as I'm concerned. And indeed Novell cites the same issue of inadmissible speculation with Darl McBride's declaration and deposition testimony, Exhibits 61 and 81. Worse yet, Novell says that his declaration "shows that SCO knew of the information it withheld during its 30(b)(6) deposition at the time of that deposition." Uh oh.
There are also objections to Jeff Hunsaker's deposition, Exhibit 62, where Novell charges that there was no evidence presented that he was ever in direct communications with any of the potential licensees he testifies about. Or speculates about, Novell calls it. Further objections are listed to Erik Hughes' deposition transcript, Exhibit 65 and to Blake Stowell's, Exhibit 67, which Novell says SCO neglected to mention in any of its briefs but attached anyway. That makes it irrelevant and it "wastes time" among other things.
Gary Pisano's and Paul Moxley's Declarations, Exhibits
71 and 72, were filed too late. They should have been attached to the summary judgment record with service of SCO's May 18 briefs or SCO should have asked permission of the court by means of a 56(f) motion. It didn't do either, so Novell says they should be excluded. Ditto Evan Ivie's Declaration, Exhibit 73, and Thomas Cargill's Exhibit 74 and Christine Botosan's, Exhibit 87.
Novell objects to the 1996 SCO Annual Report being entered into evidence on the parol evidence rule, in that SCO is trying to use it to contradict the "plain language of the APA". SCO also failed to mention this document in discovery, and it's too late now. Ditto on an FTC form and notification and a 1987 MS Agreement Memorandum, a Notification and Report form, a Project Sleigh Ride presentation, a Just Sports letter, whatever these are. Sandeep Gupta's latest creative writings, a May 18 declaration, Exhibit 89, is also inadmissible parol evidence Novell says, hearsay, and he has no personal knowledge of the matters he is testifying about, according to Novell. For example, how would he know the actions or intents of Novell engineers or the UnixWare MR Review Board? In any case, it's too late, being also in the category of withheld testimony on Novell's list. Apparently Ralph Yarro offered a declaration, dated May 17, but Novell wants it tossed on relevance, lack of personal knowledge, hearsay and best evidence rules. Oh, and oopsie. SCO forgot to cite it in any of its memoranda. Even if it had, it's too late now. Ditto with some Skip Jonas email, whoever that is, who tries to testify to the intent of the APA, but without any evidence he was ever involved in any way. There is also a Larry Bouffard email, Exhibit 93, and an exhibit referencing someone with the last name Ackerman, Exhibit 94, in email discussion apparently with Jonas.
Exhibit 103 is a Department of Justice letter of some kind Novell also objects to. Novell cites the Copyright Act, which requires a written instrument of conveyance, not a letter from an outside party regarding intent. It's too late also. And so is the IP Assignment and the Troy Keller Declaration, too late. In any case, Mr. Keller's opining on the APA and Amendment 2 isn't based on any evidence he was involved in either. The Novell letters are also too late. As for Lee Johnson's declaration, maybe the least said about it, the better. The grounds are lack of personal knowledge, hearsay, and relevance from this nonlawyer whose testimony, Novell says, "is replete with inadmissible speculation as to the actions, thoughts, and motivations of David Bradford..." I'd call that a polite description, myself. "In addition, Mr. Johnson admits that he is not a lawyer, but instead a "businessman and investor" who has held SCO stock...; accordingly his inferences about the legal effect of Mr. Bradford's alleged statements are without foundation."
Jay Petersen's declaration is also objected to on the grounds he "improperly speculates as to the actions and intentions of SCO, Novell, and Mr. McKenna (stating without foundation... that 'SCO did not add "Novell" copyright notices to any of its source products." In any case, he is factually wrong, Novell notes:
Mr. Petersen's lack of personal knowledge is confirmed by the fact that his account of the supposed rationale behind the continued presence of Novell on the copyright notices -- that Novell appeared on the copyright notices because Novell's NetWare code to which Novell owned the copyrights appeared in some subdirectories on the CDs containing the new releases of UnixWare -- does not make sense. The NetWare directories already contained copyright notices listing only Novell.... Moreover, Santa Cruz's UnixWare Release 2.1 and 2.1.3 contained copyright notices for numerous third parties other than Santa Cruz or Novell in various subdirectories.... Yet, none of those third parties were listed in the copyright notice for the main installation directory; only Novell and Santa Cruz were listed. Accordingly Mr. Peterson's declaration should be stricken in its entirety.
It's also, Novell says, too late. As for Steve Sabbath's new testimony, "As demonstrated by his lack of memory, Mr. Sabbath's testimony is based solely on the inadmissible out-of-court statements of those who were actually involved with the negotiations." That means it's hearsay.
That brings us to the late expert report by G. Gervaise Davis. Aside from being too late, he "is not qualified as an expert on any matter in this case, including bankruptcy or 365(n) issues, and his proffered testimony lacks the requisite foundation for admissibility on summary judgment. Specifically, Mr. Davis fails to cite any document he reviewed, or any familiarity with the issues on which he is opining. As a result, his declaration is filled with speculation (stating without foundation at paragraph 6(e), for example, that 'it would not have been logical or necessary for legal counsel to Novell to rely on' certain concerns). Not only can Mr. Davis have no knowledge as to Novell's state of mind, it is unclear that he even reviewed relevant evidence." Remember Federal Rule of Evidence 701, 702 and Federal Rule of Civil Procedure 56(e)? Novell cites all three and asks that his testimony be stricken. They want it all stricken, in fact.
I am guessing that the new SCO lawyers did some work, simply desperate to survive this season of summary judgments, but alas! perchance too late for much of its evidence. They had to know Novell would object. They know the Federal Rules of Evidence too, after all. They teach that in law schools everywhere. But at this point, what do they have to lose? Other than our high regard, and I've seen no evidence *that* keeps any of them up at night.
If the judge were to go along with these objections to any significant degree, Novell would ace the summary judgment portion of this litigation in a very big way as far as its own motions go. Like totally. I can't predict because we are seeing only Novell's side; SCO's is sealed. That could be from mortification or many other more legitimate reasons. I'll opine, since no one but Novell seems to care about the rules of evidence and speculation is in the air everywhere, that this fear of not surviving summary judgment is what is driving this last-minute barrage of SCO "evidence" and that perhaps its intended audience is not just the judge. The parts that can't fly might have something to do with the public, where this case has always been tried by SCO in parallel to its efforts in the courtroom. The public might not know the rules of evidence, but the judge does. And I was joking. He does care about things like speculation, hearsay, timeliness, and all the rules of the road. That's his job.
If evidentiary objections are of interest and you'd like to understand the topic better, here's an article by a lawyer who explains it simply and clearly, although in the context of a trial. And yes, SCO can answer. Here's an example of an answer [PDF] to evidentiary objections [PDF] in another case, just so you see what an answer would look like. And as you probably have guessed, this all matters a great deal in any appeal, because it establishes a record, assuming that Novell presses for a ruling from Judge Kimball on each objection. And evidentiary objections just means objections to the substance of the question or testimony, as opposed to procedural objections, which are about method. People write entire books on the subject of discovery, by the way, and of course Google Books can point you to some.