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Novell's Intriguing Exhibit A: Greyhound Financial Corp. v. Willyard
Sunday, June 10 2007 @ 02:52 PM EDT

If you'd like to see a ruling in a case that is worse than the SCO litigation, this is your chance.

Novell attached a 4-part exhibit, the longest ruling I've seen in quite a while, maybe ever. It's a 1989 ruling by the court on 86 motions simultaneously. Yes. A Utah case, although it started in Arizona.

It's a civil RICO and mail/wire fraud case, I gather from what I've read so far, with a complicated fact pattern with multiple causes of action, multiple parties, including some folks who already had gone to jail or were then incarcerated, but mainly trying to determine who else helped them with the complex fraud. There were almost 400 depositions taken in the litigation. One guy had been deposed for 73 days (his deposition transcript totaled 10,420 pages -- imagine us paying for that!), which may have seemed worse to him than the jail time, I reckon, and in short very little of the case's ruling applies to the SCO v. Novell situation, so far anyway, but one small section does, which should tell you why lawyers love services like Westlaw's, which do searchable databases that make it possible to find that nugget you need without having to read 100 pages of a ruling first.

The case was used by Novell to support its most recent evidentiary objections [PDF], which you read about in the previous article, in the section on witnesses being required to have personal knowledge. Here's the brief use of the case by Novell, on page 4 of the PDF:

B. Lack of Personal Knowlege. Admissable evidence must be based on a witness's personal knowledge rather than mere speculation....Argo v. Blue Cross & Blue SHield of Kan., Inc.,...(upholding trial court's refusal to consider portions of a declaration lacking personal knowledge, stating "[u]nder the personal knowledge standard, an affidavit is inadmissible if the witness could not have actually perceived or observed that which he testifies to.... Accordingly, at the summary judgment stage, 'statements of mere belief' in an affidavit must be disregarded"... (pursuant to Rule 56(c), affidavits must be made on the personal knowledge of the affiant and must show that the affiant possesses the knowledge asserted). The same personal knowledge requirement applies to deposition testimony and other forms of evidence approved for use on summary judgment by Rule 56(c). Greyhound Fin. Corp. v. Willyard, No. 87-C-0911B, 1989 WL 201094, at *48 (D. Utah Dec. 26, 1989) (Exhibit A hereto). District courts should disregard a declaration that is contrary to a deposition statement "when they conclude that [the declaration] constitutes an attempt to create a sham fact issue." Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986).

Why Novell chose to attach just this one case, I don't know. Maybe they found the case hilarious, just as I do, and wanted to show it to Judge Kimball to give him a laugh. Or, more likely, it is the best case they found to prove the above points. Maybe a little of both.

I found the underlining interesting, though, as it is clear someone on the Novell side has been researching mail fraud, but whether in another case or this one, I obviously have no idea. I suppose it could just be that they underlined it for another case and then used it here too, perhaps because of being pressed for time. I do note that the case involved mailing of bogus invoices, among other things, and that most of the underlining is in the section in Part 1 of the exhibit, about what constitute the elements of an aiding and abetting claim in mail fraud. Whatever the reason Novell included it, I'm enjoying reading it and I thought you would too, as you will see a judge who has had it with the lawyers filing so many motions, but who never loses his self-control or his ability to keep on top of the litigation. Here are the four parts:

I'll do the introduction as text for you, because it will put the SCO litigation into perspective for you. Here's how Judge Broomfield's Memorandum and Order begins, and it's by now four years into this litigation, with the parties at the summary judgment phase, just like in SCO v. Novell and SCO v. IBM, but with discovery not yet finished in all areas. They've been having monthly status conferences for two years now, to handle various motions, and at this point in time the court has already decided 300+ motions and issues raised by the parties. It's been somewhat rancorous, and several parties on both sides have already hinted that they intend to seek sanctions at the end of the voluminous litigation. And with that backdrop, here Judge Broomfield begins dealing with the remaining 86 motions:


Memorandum and Order

BROOMFIELD, District Judge
On August 21, 1989, through August 25, 1989, the court heard various defendants' motions for summary judgment and related motions to strike. After extensive briefing and argument by the parties, and after a preliminary review of the material by the court, the court took all of these matters under advisement. The following memorandum and order decides all issues pending before the court, including previous motions for summary judgment and partial summary judgment filed by some of the defendants that remained under advisement at the time of the August hearings. Any remaining issues to be decided by the court at this stage of the litigation may be raised by the parties at a status conference set by the court at the conclusion of this memorandum and order.

I. Introduction

This court has worked with many attorneys on this case since the inception of both this litigation and the court's tenure on the federal bench in the late Summer of 1985. At the present time of the filing of this memorandum and order, almost 5,000 separate docket entries are listed in the Clerk of the Court's docket sheet for this case. This represents an estimated 120 linear feet of paper filed by the parties, all of which is presumably part of the record before the court at the present time. After extensive Rule 12 motion practice by defendants, several amendments to the pleading by plaintiffs, transfer of this action to the District Court for the District of Utah, and voluminous discovery practice by all sides, the court is now presented with defendants' Rule 56 motions and various motions to strike which related to them. In toto, there are eighty-six motions before the court. The court will not attempt to estimate the height of the parties' motion papers except to say that the volume represents a considerable obstacle to the prompt and judicious determination of the pending motions.

However, it is an obstacle which the court must surmount both to maintain the integrity of the judicial system and in an effort to eventually resolve the parties' disputes. The court is able to complete this task only after careful consideration of the parties' positions on the facts and the law and after applying an ample dose of common sense. In this latter vein, the court will attempt to avoid further restriction of the Clerk of the Courts file drawers by limiting this memorandum to only those issues which necessarily must be discussed to resolve the pending motions. While it may have been perceived by many of the parties that their interests were best served by inundating the court with papers, this method of practice ends with the filing of this memorandum and order.

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