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To read comments to this article, go here
SCO's Motion in Limine - Shh! Don't Tell the Jury About IBM or "Commentary Thereon"
Saturday, August 25 2007 @ 03:48 AM EDT

SCO's one motion in limine [PDF] it has filed so far that is not sealed is a remarkable one. It would like the court to order Novell, its representatives and its witnesses not to speak about the IBM litigation or any commentary about it to the jury. "Commentary" would be us Groklaw chickens and, SCO claims, "other similar websites". Son, there aren't any websites like Groklaw. None. It's why Groklaw wins the awards. It's something brand new. Here's what SCO says about the need to white out the IBM litigation:
3. Any probative value in such evidence would be substantially outweighed by the danger of unfair prejudice to SCO. The fact alone that a separate lawsuit is pending, in which SCO's rights or obligations arising from the operation of its Unix and UnixWare business is questioned, may improperly prejudice the jury, or cause the jury to scrutinize the credibility of SCO's evidence and witnesses for reasons unrelated to the dispute before them.

Questioned? Is that a big enough word? I'll say the jury may just scrutinize SCO's credibility. Aren't you?

Anyway, it seems Groklaw is so potent, one must not mention it to any jury members ever, ever, ever. It would like the judge to warn all Novell's witnesses not to breathe a word. I can't wait for the voir dire. "Are you now or have you ever been a reader of Groklaw?"

Kidding. I think frankly they are too. I can't imagine any conceivable scenario where Groklaw would ever come up in any way. It's just ridiculous. And is there a person left in Utah who hasn't heard about the IBM litigation that SCO itself initiated with unbelievable fanfare?

I seriously doubt it. Remember those notebooks of news clippings Robert McMillan reported SCO's CEO proudly took on stage at SCOforum in August of 2003?

However, SCO's public relations (PR) department has had a busy few months. McBride proudly dumped two phone-book-sized binders of press clippings on the stage during his SCO Forum keynote on Monday as proof that his company had become more relevant in the high technology industry. SCO has issued 46 press releases since filing suit against IBM on March 7. Last year it issued only 29 press releases between March and August.

Then SCO enshrined the notebooks, plus some additional notebooks, in the SCO lobby:

In the ascetic waiting room of the SCO Group's Lindon, Utah, headquarters, the only reading matter is a stack of beige, telephone-book-sized binders. They are volumes I, II, III, and IV of the company's press clippings. For the previous month.

So Utah already heard about the IBM litigation, and from SCO's own lips. SCO would like the jury not to be "prejudiced" by hearing another side of the story now. And as for Groklaw, it was SCO itself that made a big deal of Groklaw to the media. To the court, too, now that I think of it. They probably wish they could take it all back now. Is this perhaps some weirdo setup for an appeal? Nothing is too far-fetched to at least consider, judging from the past. An appeal because someone mentioned Groklaw? Man, I didn't know our own strength. I know. The whole thing is silly. But they clearly are using Groklaw with some strategy in mind. So in that sense, it's not silly. Just cynical. They have to know by now Groklaw isn't biased. It was right.

And just so they know: I'm a little sick of them pretending it is biased or anti-SCO. I'm a little sick of friendly journos repeating SCO's descriptive phrases and insulting remarks about Groklaw practically word for word, too, if you've noticed the game being played, so SCO can use it in court later to "prove" what it claims about Groklaw. Or pretends to.

You'd think the judge's recent order would have hit them all with a cluestick that if there is any bias in this picture, it's really on their side of the fence and it has been from day one. Groklaw tried to warn SCO literally for years, privately and publicly, that what just happened to them would likely happen to them. They wouldn't listen. I publicly invited SCO to present its side of the story on Groklaw if they wished to. They never did. You know why? I think it's because SCO was so prejudiced against Groklaw and was so anti-Groklaw, it just couldn't take what we said seriously.

Over and over they have called Groklaw biased because we said we thought they would lose. But they did lose. We knew the code, we knew the history of both Unix and Linux, we understood the GPL, and we knew the law, as a group, and we researched the claims, and we called it right. That's not bias. That's expertise. I have always bent over backwards to be fair to SCO, actually. Not that they notice, but I have. But if I think their claims have no merit, after researching them as carefully as we have here, I write it the way I see it. But I also present all the materials we've collected so you can reach your own conclusions. And that's all Groklaw has ever done. That's not even anti-SCO. It all came true, after all. Unless Judge Kimball is secretly a committee of IBM lawyers.

: )

Since at this point there is substantial question as to whether there is going to be a jury, I suspect SCO mentions Groklaw mainly because it is afraid the judge might be reading it, since they have been mentioning it over and over, and they'd like to tell him that they think Groklaw is "biased", but I seriously doubt he is reading Groklaw. Or maybe they just wanted to slime Groklaw one last time, for old time's sake. Heaven only knows that's what I'll always remember whenever I think of SCO -- how hard SCO and friends worked to undermine respect for Groklaw. And all they put me through.

*************************

Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE, PC
[address, phone, fax]

David Boies (admitted Pro Hac Vice)
Robert Silver (admitted Pro Hac Vice)
Edward Normand (admitted Pro Hac Vice)
BOIES SCHILLER & FLEXNER LLP
[address, phone, fax]

Devan V. Padmanabhan (admitted Pro Hac Vice)
DORSEY & WHITNEY LLP
[address, phone, fax]

Stephen N. Zack (admitted Pro Hac Vice)
BOIES SCHILLER & FLEXNER LLP
[address, phone, fax]

Stuart Singer (admitted Pro Hac Vice)
BOIES SCHILLER & FLEXNER LLP
[address, phone, fax]

Attorneys for Plaintiff, The SCO Group, Inc.

____________________________

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

____________________________

THE SCO GROUP, INC., a Delaware
corporation,

Plaintiff/Counterclaim-Defendant,

vs.

NOVELL, INC., a Delaware corporation,

Defendant/Counterclaim-Plaintiff.

__________________________

SCO's MOTION IN LIMINE TO
EXCLUDE ALL EVIDENCE RELATED
TO OTHER LITIGATION AND
COMMENTARY THEREON

Civil No. 2:04 CV-000139

Judge Dale A. Kimball
Magistrate Brooke C. Wells

________________________

Plaintiff/Counterclaim-Defendant The SCO Group ("SCO") hereby moves the Court in limine for an order instructing Novell, Inc. ("Novell"), its representatives, and its witnesses to refrain from making any direct or indirect mention whatsoever at trial before the jury of litigation pending between SCO and IBM and any commentary on such litigation or on the instant litigation, without securing the prior permission of the Court. In support, SCO states as follows:

1. Evidence of the existing dispute and claims between SCO and IBM, a non-party to this action, is not relevant under Rule 401 of the Federal Rules of Evidence. Rule 401 defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." See Telum, Inc. v. E.F. Hutton Credit Corp., 859 F.2d 835 (10th Cir. 1988).

2. Given the Court's recent ruling on summary judgment, no aspect of the litigation with IBM relates to or touches upon the questions the jury must now address. Neither the history nor circumstances of the dispute with IBM, nor the nature of the claims, has any bearing on or relevance to the remaining issues for the jury to decide. While IBM and Novell's interactions may have been at issue in SCO's claims against Novell, those claims are no longer at issue in the forthcoming trial.

3. Any probative value in such evidence would be substantially outweighed by the danger of unfair prejudice to SCO. The fact alone that a separate lawsuit is pending, in which SCO's rights or obligations arising from the operation of its Unix and UnixWare business is questioned, may improperly prejudice the jury, or cause the jury to scrutinize the credibility of SCO's evidence and witnesses for reasons unrelated to the dispute before them.

2

4. The risk of such prejudice is illustrated and heightened by the commentary that has followed the IBM dispute. The nature of the claims in the IBM dispute has led to highly polarized commentary in reaction to the lawsuit. One such example is the website Groklaw.com, on which a self-described former paralegal named Pamela Jones has published and continues to publish anti-SCO biased coverage of all pleadings, hearings, and events relating to SCO's pursuit of its claims against IBM, Novell, and other parties. There are other similar sites and commentary, and the Court should not allow Novell or its counsel to make any statements that might lead jurors to investigate such sources. (We do not suggest Novell's counsel will intentionally do so, but witnesses should be so instructed. We understand Novell may not oppose this part of the motion.)

Wherefore, SCO requests that the Court exercise its inherent power over the conduct of trials, and order Novell, its representatives, and its witnesses not to elicit testimony respecting the litigation pending between SCO and IBM or regarding the commentary on such litigation or on the instant litigation, and not to mention or refer to the above matters without securing the prior permission of the Court.

DATED this 24th day of August, 2007.

HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

BOIES, SCHILLER & FLEXNER LLP
David Boies
Robert Silver
Stuart H. Singer
Stephen N. Zack
Edward Normand

3

DORSEY & WHITNEY LLP
Devan V. Padmanabhan

By: /s/ Edward Normand

4

CERTIFICATE OF SERVICE

Plaintiff/Counterclaim-Defendant, The SCO Group, Inc., hereby certifies that on this 24th day of August, 2007 a true and correct copy of the foregoing SCO'S MOTION IN LIMINE TO EXCLUDE ALL EVIDENCE RELATED TO OTHER LITIGATION AND COMMENTARY THEREON was electronically filed with the Clerk of Court and delivered by CM/ECF to the following:

Thomas R. Karrenberg
John P. Mullen
Heather M. Sneddon
ANDERSON & KARRENBERG
[address]

Michael A. Jacobs
Matthew I. Kreeger
MORRISON & FOERSTER
[address]

By: /s/ Edward Normand

4


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