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To read comments to this article, go here
SCO files motion in limine re apportionment of MS/Sun $$ and to exclude Novell's expert
Tuesday, August 28 2007 @ 12:05 AM EDT

SCO has, of course, now filed a sealed motion in limine, titled "Amended Motion in Limine Regarding Apportionment of 2003 Microsoft and Sun Agreements" -- yes, SCO's new theory of apportionment, the very subject Novell says SCO should be precluded from talking about. A heavily redacted version [PDF] is available, with the two agreements attached but sealed. SCO would most urgently like the court to have a breakdown now of what the agreements were for so it can agree with SCO that almost none of the money should go to Novell.

SCO claimed for all these years of discovery that 100 per cent of that revenue was theirs, all theirs, so they wouldn't give Novell a breakdown, Novell has told the court. Now Novell says it is 100% theirs, because SCO provided no itemization in discovery. All the information that SCO wouldn't turn over to Novell since 2003 is positively gushing out now, albeit in redacted form. Too late, Novell argues. They can't prepare for a new theory of apportionment on the very eve of trial. We'll see what the judge says.

And SCO wants Novell's expert excluded. According to SCO, Terry L. Musika intends to offer his opinion at trial that 100 per cent of all SCOsource license revenues belong to Novell, including every penny from the Microsoft and Sun agreements. SCO says he isn't qualified to be an expert anyway, and he didn't come to the right conclusion having failed to analyze matters properly.

So, we have quite a comical turnaround. It's probably not too funny to SCO at the moment. But to those of us merely watching, who witnessed SCO's earlier position and found it unsupportable, as did the judge recently, there is a certain droll sense of justice or karma, if you prefer, that I confess I find not altogether unpleasant. It's like the feeling you have when you see a bully who has been terrorizing all the littler kids in the playground suddenly get punched in the nose by a kid bigger than he is. You'd have to be a saint not to enjoy it a little bit.

The apportionment motion asks that the judge order Novell not to say to the jury that Novell is entitled to all the revenues from Sun and Microsoft. It wants them restricted to Section 4 of each agreement, which we haven't seen, so I can't tell you what that is about. It's all so heavily redacted, especially the section about Sun, it's hard to know for sure what they were for. Here are the docket entries:

401 - Filed & Entered: 08/27/2007
Notice of Conventional Filing
Docket Text: NOTICE OF CONVENTIONAL FILING of SCOS AMENDED MOTION IN LIMINE REGARDING APPORTIONMENT OF 2003 MICROSOFT AND SUN AGREEMENTS filed by Plaintiff SCO Group (Amending Exhibit 2: Plaintiff inadvertently filed with the Court the incorrect version) (Normand, Edward)

402 - Filed & Entered: 08/27/2007
Redacted Document
Docket Text: REDACTION to [384] Notice of Conventional Filing SCO's Motion to Exclude Testimony of Terry L. Musika by Plaintiff SCO Group. (Attachments: # (1) Exhibit 1: Filed Under Seal# (2) Exhibit 2: Filed Under Seal)(Normand, Edward)

403 - Filed & Entered: 08/27/2007
Redacted Document
Docket Text: REDACTION to [384] Notice of Conventional Filing SCO's Motion in Limine Regarding Apportionment of 2003 Microsoft and Sun Agreements by Plaintiff SCO Group. (Attachments: # (1) Exhibit 1: Filed Under Seal# (2) Exhibit 2: Filed Under Seal)(Normand, Edward)

408 - Filed & Entered: 08/27/2007
Sealed Motion
Docket Text: **SEALED DOCUMENT** SEALED AMENDED MOTION in Limine Regarding Apportionment of 2003 Microsoft and Sun Agreements filed by Plaintiff SCO Group. Amends Motion #[406]. Motions referred to Brooke C. Wells.(blk)


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