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Novell's Response to SCO's Opposition to Novell's Evidentiary Objections
Wednesday, July 04 2007 @ 12:06 AM EDT

Here you go. Novell's Reponse to SCO's Opposition to Novell's Evidentiary Objections to SCO's Exhibits Submitted in Connection with Summary Judgment Motions [PDF]. In this filing, Novell makes three points:
  1. Novell's evidentiary objections are properly before the court
  2. SCO's opposition is untimely
  3. SCO's opposition is without merit

As you'll recall, SCO filed its opposition and exhibits under seal, so unless or until they file a redacted version, this is our only hint as to what its opposition was based on. And according to Novell, SCO has based its opposition on some misrepresentations to the court. SCO told the court that it objected at the May 31st and June 4th hearings to Novell's evidentiary objections and asked the court to "disregard" them as "improper".

"In fact," Novell tells the court, "SCO made no such request." Novell simply attaches what was actually said at the hearings as Appendix A and Appendix B [PDFs].

I know. You are saying, What, again?

See, this is where -- despite Stuart Singer's obvious skill at oral argument -- SCO's side always falls down. Over and over, they represent things to the court that are provably not so. That can't help their credibility with the court. Novell also says that SCO "contends that Novell's evidentiary objections should be disregarded because they were filed without leave of Court and without sufficient notice to SCO."

You'll remember that Novell filed two sets of evidentiary objections. This turns out to matter, because of the argument about timely notice, as you'll see. The first set, filed on May 15, were related to the summary judgment motions argued on May 31 and June 4, regarding Novell's 4th Claim for Relief, specifically re Section 4.16 of the APA, and SCO's 1st, 2nd and 5th Causes of Action. Then on May 29, Novell filed its second set related to evidence SCO had submitted three days after Novell filed the first objections.

1) The evidentiary objections are properly before the court: Novell points out that SCO didn't assert at the May 31st hearing, where the judge discussed the objections, that Novell's objections were untimely or that SCO needed more time to reply. Instead it addressed the substance of the objections. Ditto at the June 4 hearing, where SCO also did not object and instead addressed the merits.

Anyway, Novell says, you don't need to ask leave of the court to file objections. And it filed them in a timely manner, according to DUCivR 5-1(c), which requires that documents "pertaining to a court proceeding must be filed ...a minimum of two (2) business days before the scheduled proceeding," and so by filing on May 15, Novell actually gave more than ample notice with its first set and still complied with the second set, which are largely duplicative or similar to the first in any case. And SCO addressed the merits of Novell's brief's arguments regarding two key objections, the parol evidence rule and the hearsay rule, in its responsive brief, so it can hardly argue now that they were sprung on them too late.

Novell doesn't mention it here, but it's quite ironic that SCO would object based on timeliness, given that it filed a supplemental declaration with exhibits which was due on May 18 on May 30, the night before the hearing, after the close of normal business hours to boot, resulting in a Novell motion to strike which is still pending, based on the same DUCivR 5-1(c) rule.

2) SCO's objections are untimely: SCO has some nerve objecting to Novell's timing, since it didn't file its opposition until June 18, 14 days after the last hearing and a month plus a bit after Novell filed its first evidentiary objections. It failed to ask for leave to file a supplemental opposition, so the Court "properly took all motions under advisement at the conclusion of the hearings." SCO has offered no reason for the Court to reopen everything to allow further briefing.

3) SCO's opposition is without merit: Some of SCO's arguments were already addressed in Novell's evidentiary objections, but here are, Novell says, some new points. The only new argument SCO raises relates to evidence SCO failed to present on time.

I know. You are saying, what, again? Well, my friends, a leopard doesn't change his spots, you know.

Here's what happened this time. Novell asked in interrogatory requests for SCO to "state all facts, evidence and bases" including identification of all witnesses in support of its allegation that Novell and SCO "shared an understanding that the APA intended to and did transfer the copyrights to Santa Cruz" and that Amendment 2 was meant merely to "clarify the APA by reiterating the transfer of the copyrights." But SCO never listed three witnesses for this, Troy Keller, Sandeep Gupta, and Jay Petersen. SCO also cited documents that either had never previously been produced in discovery or that had been produced but not in connection with the particular interrogatory requests about the APA. SCO is arguing not that it complied with the discovery, but only that it made the stuff known to Novell in its summary judgment papers. Hahahaha.

SCO would like the rules to be that if you throw boxes and boxes of papers at the other side in discovery, hidden treasures can show up suddenly later in summary judgment motions, after fact discovery closes, even though you never told the other side where the treasure was hidden, despite them asking for the map to that particular treasure. It would be so nice for SCO if it worked that way, given their bent, but Novell points to the rules. Novell never had a chance to depose those three witnesses, as a result of SCO's little surprise, and so Novell didn't have an opportunity to ask about the documents.

Footnote 2 is a hoot. Novell's curled lip is showing: "SCO also relies on two cases, neither of which is applicable." What, you are saying, again?

Maybe SCO's style works if you aren't being watched closely, the way this case is. But it surely doesn't work in the glare of the Internet's spotlight, and it's something I hope someday their lawyers explain in a book or an article. Why did they do it, over and over? I've wondered sometimes too if SCO seals its filings so Groklaw can't point out such misrepresentations in a timely fashion prior to hearings. If so, it's a wasted strategy. Novell misses nothing.

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