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Yet More Filings in Novell - Why SCO Wants No Mention of IBM or Groklaw - Updated
Wednesday, September 05 2007 @ 04:46 PM EDT

Lots of new filings in SCO v. Novell. Now the mystery clears as to why SCO wants no mention of the IBM litigation or Groklaw in the SCO v. Novell trial. In its Reply Memorandum in Support of its Motion In Limine to Exclude All Evidence Related to Other Litigation and Commentary Thereon [PDF], we hear its reasoning. I gather SCO would like SCO's CEO Darl McBride not to be quoted. I'm sure you can understand why those old quotes from 2003 and 2004 about SCO owning System V copyrights and all the information about what kind of licenses the Sun and Microsoft agreements were would be undesirable from SCO's viewpoint nowadays.

Here are SCO's words:
Novell contends that it may seek to use statements made or taken in the context of the IBM litigation. Even if such statements were offered and introduced at this trial, foundation could be laid for their admission without reference to the IBM case. Witness and counsel alike could refer to 'another proceeding,' if there is any need to differentiate the circumstances under which the statement was made from the present litigation. Novell has advanced no reason why the jury would need to understand that the statement was generated in the IBM case. Lacking any need for the evidence, Novell should be precluded from interjecting prejudicial references to the IBM litigation before this jury....

Novell asserts that it does not intend to elicit testimony or introduce evidence concerning the commentary on the IBM litigation; accordingly, the Court should so Order the parties to direct their representatives and witnesses to refrain from any such reference. Novell nevertheless implies that it intends to introduce news articles that would contradict that Order, on the asserted basis that such articles also contain admissions by SCO executives. In light of the narrowed issues for trial, no such articles or admissions would be relevant; accordingly, Novell's only purpose in seeking their admission would be to improperly prejudice SCO. In the event that the Court permits admission of such statements by SCO executives contained in news articles, gratuitous information regarding the IBM litigation can and should be redacted therefrom.

Groklaw is hazardous, because all his statements are here, and of course most of them were made in the context of filing its litigation against IBM. The SEC filings are here on our SCO Financials page. The teleconferences are here on our Transcripts page. There's just no telling what a juror might stumble across. Like, say, in our Quote Database, where all the wild and now provably untrue statements McBride made about owning System V copyrights that SCO said it got under the 1995 APA are preserved for history. Oh, and all the statements about Novell and how it had no right to say it owned the copyrights. My, my. I agree. Groklaw is juror quicksand for SCO. If I were SCO I would be worried that the same thing will happen in court that happened in the court of public opinion. What I don't understand, unless this was intended as FUD lawsuit, is why the SCO legal team let the SCO executives say so much to the media in the first place.

And among the other many new filings, Novell says in its Opposition to SCO's Motion for Entry of Final Judgment Pursuant to Federal Rule of Civil Procedure 54(b) [PDF] that SCO's motion is premature and so should be rejected and that's the nicest thing Novell says about it. For starters, the rule is for getting judgments on claims, not on portions of claims, which is what they say SCO is asking to have finally adjudicated. "Novell's rights and obligations vis-a-vis the IBM and Sequent licenses are intertwined with the question of whether those licenses are SVRX licenses under the Agreements. Because SCO does not even argue that the Court 'entirely' disposed of Novell's Fourth Claim for Relief on summary judgment, the portion of the claim for which SCO seeks final judgment is unripe for appeal." Ditto the Second Claim. And as for the effect on the IBM litigation, it's going to be tried too soon for SCO to make it through an appeal first, Novell points out.

Here's all the new material on PACER:

440 - Filed & Entered: 09/04/2007
Reply Memorandum/Reply to Response to Motion
Docket Text: REPLY to Response to Motion re [390] Plaintiff's MOTION to Strike Exhibits on Novell's Revised Exhibit List Not Previously Disclosed filed by Plaintiff SCO Group. (Attachments: # (1) Exhibit A-B (Unpublished Cases))(Normand, Edward)

441 - Filed & Entered: 09/04/2007
Notice (Other)
Docket Text: NOTICE of CORRECTED FILING by SCO Group re [440] Reply Memorandum/Reply to Response to Motion (Normand, Edward)

442 - Filed & Entered: 09/04/2007
Reply Memorandum/Reply to Response to Motion
Docket Text: REPLY to Response to Motion Re: SCO's Motion to Exclude Testimony of Terry L. Musika filed by Plaintiff SCO Group. (Attachments: # (1) Exhibit A-B (Unpublished Cases))(Normand, Edward)

443 - Filed & Entered: 09/04/2007
Notice of Conventional Filing
Docket Text: NOTICE OF CONVENTIONAL FILING of SCO's Reply Memorandum In Further Support of SCO's Motion In Limine Regarding Apportionment of 2003 Microsoft and Sun Agreements filed by Plaintiff SCO Group (Normand, Edward)

444 - Filed & Entered: 09/04/2007
Terminated: 09/05/2007
Motion for Leave to File Excess Pages
Docket Text: Plaintiff's MOTION for Leave to File Excess Pages re: SCO's Reply Memorandum In Further Support of SCO's Motion in Limine Regarding Apportionment of 2003 Microsoft and Sun Agreements filed by Plaintiff SCO Group. (Attachments: # (1) Text of Proposed Order) Motions referred to Brooke C. Wells.(Normand, Edward)

445 - Filed & Entered: 09/04/2007
Reply Memorandum/Reply to Response to Motion
Docket Text: REPLY to Response to Motion re [389] Plaintiff's MOTION in Limine to Exclude All Evidence Related to Other Litigation and Commentary Thereon filed by Plaintiff SCO Group. (Attachments: # (1) Exhibit A (Unpublished Case))(Normand, Edward)

446 - Filed & Entered: 09/04/2007
Reply Memorandum/Reply to Response to Motion
Docket Text: REPLY to Response to Motion re [390] Plaintiff's MOTION to Strike Exhibits on Novell's Revised Exhibit List Not Previously Disclosed filed by Plaintiff SCO Group. (Normand, Edward)

447 - Filed & Entered: 09/05/2007
Order on Motion for Leave to File Excess Pages
Docket Text: ORDER granting [444] Motion for Leave to File Excess Pages. Signed by Judge Dale A. Kimball on 9/5/07. (kla)

448 - Filed & Entered: 09/05/2007
Memorandum in Opposition to Motion
Docket Text: MEMORANDUM in Opposition re [410] Plaintiff's MOTION for Entry of Judgment PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 54(b) filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit 1 # (2) Exhibit 2 # (3) Exhibit 3)(Sneddon, Heather)

There may well be even more filings today.

Update: Indeed, there is one more:

450 - Filed & Entered: 09/05/2007
Objections
Docket Text: OBJECTIONS to SCO's Supplemental Jury Instructions filed by Defendant Novell, Inc.. (Sneddon, Heather)


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