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Novell's Rule 26 Pretrial Disclosures - Update: SCO's too
Thursday, August 02 2007 @ 10:03 PM EDT

Novell has filed its Rule 26 Pretrial Disclosures [PDF]. What's that? It's required by Federal Rule of Civil Procedure Rule 26 that the parties tell in advance what witnesses, depositions, and exhibits or documents they expect to use at trial. SCO will have to file similarly, but I gather from Novell's wording that they haven't finished fighting about discovery issues yet, so neither party's lists will be carved in stone. Here are Novell's lists [PDF]. Novell tells the court this about outstanding discovery matters:
Novell notes that: SCO recently produced over 1,000 pages of third-party production SCO claims is relevant to this litigation; expert discovery is not complete; the parties have various evidentiary and summary judgment motions pending; and the parties are continuing to meet and confer regarding certain outstanding discovery issues. Novell therefore reserves the right to supplement or otherwise modify these disclosures.

One thousand pages of new discovery materials *now*? SCO just can't let go of discovery. They're like Miss Havisham in Great Expectations, frozen in time, sitting by her wedding cake, long after the outcome is obvious and, to everyone else on Planet Earth, totally over.

Yes, it's painful for Novell not to have rulings on the summary judgment motions, because they don't really know what will be left on the table, so they have to assume everything at this point. SCO likes it that way, I guess, since they are still digging through their rubbish, prospecting for gold. But the thing is, with SCO apparently still presenting new materials in abundance, how exactly is the judge supposed to rule yet? Well, I guess he could tell them to cut it out. But Novell would have to bring a motion first. If they don't care, why should we? Kidding. They care. It's why they just told the judge.

So, at this point who is Novell thinking of calling as witnesses? You will see folks you would expect to see. Some are friendly witnesses, others not so much.

For example, in the first category, I see folks we've heard from before, like Allison Amadia, Tor Braham, and Kellie Carlton. These three though won't be needed if Judge Kimball rules for Novell on its motions regarding copyright ownership and contract issues. See what I mean?

In the second category, I see Michael Anderer, Duff Thompson, one of the many witnesses SCO lined up all swearing on the Bible that they thought copyrights transferred, and Sandeep Gupta. That poor Gupta guy. They'll turn him into mincemeat, I expect. And there is no way he won't be called, I don't think, in this as well as in the IBM case. Anyone who loves him should pray for rain so severe that it cancels the entire SCO farce. Joke. Joke. I wish global warming was that effective and um... localized. If only there was a way to harness that stuff.

Nah. Then Microsoft would buy it. If there was a committee deciding who got it, they'd line up all their gold partners and lo and behold, Microsoft would be the proud owner -- by consensus, no less, or maybe under the new rules of only majority vote and in a room that only handles enough spaces for Microsoft and its partners and a couple of independents and no room for IBM or Sun people -- of global warming. Then they'd point it at Oregon full blast. And Armonk. Presto. A New World Order. I for one....

: )

No, I can't even say it as a joke. I guess there is some hope for Gupta in the Novell case, since he's listed as one of the witnesses whose testimony Novell is objecting to.

Here's the requirement regarding the witnesses they expect to call, as required to be disclosed under Rule 26(a)(3)(A):

(A) the name and, if not previously provided, the address and telephone number of each witness, separately identifying those whom the party expects to present and those whom the party may call if the need arises;

The second is the list of depositions under the Rule 26(a)(3)(B) list of deposition testimony:

(B) the designation of those witnesses whose testimony is expected to be presented by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony; and

Finally, there is the list of exhibits, under Rule 26(a)(3)(C):

(C) an appropriate identification of each document or other exhibit, including summaries of other evidence, separately identifying those which the party expects to offer and those which the party may offer if the need arises.

We can't understand everything on the Novell lists, because they are referencing lists that are not public and only the parties can match up by numbers, but if you see, for example, that they expect to call Steven Sabbath and you see that there is an exhibit they plan to use that came up in his deposition, you can sometimes figure out what they plan to bring out.

Update: SCO has filed its lists [PDF] now also. A more intimate list, but we'll get to see Ralph Yarro and Maureen O'Gara called to the stand. And I see in the documents list that they may offer the "first and last 25 pages of UNIX 5th Edition Operating System (Source Code), considered by Thomas Cargill in his May 29, 2007 expert report." You'll also see source code from every other version going forward and backward and UnixWare on the "to be determined" list. Again, that depends on how the judge rules on Novell's evidentiary objections, which as you'll recall included Cargill:

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.

We also get a hint from SCO as to what the meet and confer stuff is about in footnote 1:

In a letter dated June 28, 2007, counsel for SCO informed counsel for Novell that it has waived the attorney-client privilege with respect to many documents listed as entries on Novell's privilege logs, including documents that Novell produced in redacted form and documents that Novell has withheld entirely. With respect to most of these documents, the parties appear to be in disagreement as to whether there has been any waiver and, if so, the extent of its scope and the potential relevance of the referenced documents, but the parties are continuing to meet and confer on the issue. SCO reserves the right to supplement the information provided in its Pretrial Disclosures with any additional documents that Novell has improperly redacted or withheld based on its privilege objection, as well as with the names and contact information of any other witnesses identified through any such documents.

Well, that's a new one. They would like to waive SCO's privilege so Novell has to produce documents? Hmm. They are always so fun to watch, these SCO elves as they work, work, work to make things new and different from the norm. Thank heaven the trial actually starts on September 17. They have to stop once the trial is over, at the latest. Update 3: As readers have pointed out, there is another way to read this. It could mean that SCO has a theory whereby it alleges that somehow Novell has waived its privilege. If that is the proper understanding, I smell motion practice ahead.

Update 2: I'm hearing from folks asking if Patrick McBride, on Novell's witness list, is a relative of you know who. No. He's not. He's a Novell lawyer, as Groklaw old timers will recall.

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