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SCO's Attempt to Exclude Mention of IBM and Groklaw in the Novell Trial - all as text
Wednesday, September 05 2007 @ 08:39 PM EDT

I thought it would be useful to put in one spot all the filings regarding the SCO motion in limine to exclude all mention of IBM and Groklaw or other commentary from the Novell trial, so you can read them together in order as text:

It isn't always practical to do this, because of length, but this is a very short motion. So here they are. This is one of the motions that will be argued on September 11th, so those planning to attend can use this as a way to prepare before they go.

You've seen the original SCO motion as text already, so you can skip the first one if you wish. To make it a bit easier, I've created links to each filing so you can enjoy hopping around without getting confused. The link takes you straight to the meat of the filing, skipping the long headers listing all the lawyers. And at the end, before the certificate of service, I've put a link to bring you back to the top. And I've marked in colored text the most significant bits:


[ SCO Motion ] [ Novell's Opposition ] [ SCO Reply ]


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

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


[ back to top ]

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

5

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

MORRISON & FOERSTER LLP
Michael A. Jacobs, pro hac vice
Eric M. Acker, pro hac vice
Kenneth W. Brakebill, pro hac vice
Marc J. Pernick, pro hac vice
David E. Melaugh, pro hac vice
[address, phone, fax]

ANDERSON & KARRENBERG
Thomas R. Karrenberg, #3726
John P. Mullen, #4097
Heather M. Sneddon, #9520
[address, phone, fax]

Attorneys for Defendant and Counterclaim-Plaintiff Novell, Inc.

_________________________

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

__________________________

THE SCO GROUP, INC., a Delaware corporation,

Plaintiff and Counterclaim-Defendant,

v.

NOVELL, INC., a Delaware corporation,

Defendant and Counterclaim-Plaintiff.

NOVELL'S OPPOSITION TO SCO'S
MOTION IN LIMINE TO EXCLUDE
ALL EVIDENCE RELATED TO
OTHER LITIGATION AND
COMMENTARY THEREON


Case No. 2:04CV00139

Judge Dale A. Kimball

Defendant and Counterclaimant Novell, Inc. ("Novell"), through its undersigned counsel, hereby submits its Opposition to SCO's Motion In Limine to Exclude All Evidence Related to Other Litigation and Commentary Thereon.

ARGUMENT

I. A TOTAL BAR ON REFERENCES TO SCO V. IBM IS OVERBROAD AND UNNECESSARY.

Novell does not anticipate that the SCO v. IBM litigation will play a significant role in the upcoming trial in this matter.1 Novell does not intend to introduce or rely on any of the Court's rulings in that litigation. Nevertheless, a blanket prohibition against any mention of the SCO v. IBM litigation is unwarranted and would potentially bar various legitimate references to that litigation. For example, Novell may seek to:

  • Use statements made by SCO or its employees in declarations, depositions, or briefing in the SCO v. IBM litigation;
  • Introduce exhibits that reference the SCO v. IBM litigation, such as SCO's financial filings;
  • If SCO witnesses attempt to minimize the value or importance of the Sun SCOsource license, cross-examine witnesses concerning the damages claims SCO made in SCO v. IBM.2

1

For this reason, Novell opposes a total bar on references to SCO v. IBM and proposes instead to proceed on a case-by-case basis, with the shared understanding that the SCO v. IBM litigation will not feature prominently in either side's case.

II. NOVELL DOES NOT INTEND TO ELICIT TESTIMONY CONCERNING COMMENTARY ON THIS LITIGATION.

Novell does not share SCO's view of the commentary concerning the SCO v. IBM litigation. (Mot. at 4 (complaining of "anti-SCO bias").) To the contrary, the close scrutiny the Linux community &emdash; Groklaw in particular &emdash; has brought to bear on SCO's litigation is a testament to the power of open source ideals and their potential for application to spheres outside software.

That said, Novell does not intend to introduce evidence or elicit testimony concerning the commentary on this litigation. Should the Court find it appropriate, Novell would not oppose an order barring such testimony, provided it applies equally to both parties.3 Any such order should, however, be clear that it has no application to, for example, news articles containing admissions by SCO executives even if such articles otherwise contain "commentary" on the SCO v. IBM litigation.

CONCLUSION

For the reasons stated above, Novell requests that the Court deny SCO's Motion In Limine to Exclude All Evidence Related to Other Litigation and Commentary Thereon as it concerns the SCO v. IBM litigation and does not oppose the motion as it concerns third-party commentary on that litigation.

2

DATED: August 31, 2007

ANDERSON & KARRENBERG

By: /s/ Heather M. Sneddon
Thomas R. Karrenberg
John P. Mullen
Heather M. Sneddon

-and-

MORRISON & FOERSTER LLP
Michael A. Jacobs, pro hac vice
Eric M. Acker, pro hac vice
Kenneth W. Brakebill, pro hac vice
Marc J. Pernick, pro hac vice
David E. Melaugh, pro hac vice

Attorneys for Defendant and Counterclaim-Plaintiff Novell, Inc.


[ back to top ]

3

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 31st day of August, 2007, I caused a true and correct copy of NOVELL'S OPPOSITION TO SCO'S MOTION IN LIMINE TO EXCLUDE ALL EVIDENCE RELATED TO OTHER LITIGATION AND COMMENTARY THEREON to be served to the following:

Via CM/ECF:

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

Stuart H. Singer
William T. Dzurilla
Sashi Bach Boruchow
BOIES, SCHILLER & FLEXNER LLP
[address]

David Boies
Edward J. Normand
BOIES, SCHILLER & FLEXNER LLP
[address]

Devan V. Padmanabhan
John J. Brogan
DORSEY & WHITNEY, LLP
[address]

Via U.S. Mail, postage prepaid:

Stephen Neal Zack
BOIES, SCHILLER & FLEXNER LLP
[address]

/s/ Heather M. Sneddon


1 Novell reserves the right to revisit this issue should there be any subsequent adjudication or trial in this action or any enlargement of the issues for trial beyond that contemplated by the August 17, 2007 Joint Statement.

2 IBM and Sun both bought out their ongoing SVRX royalty obligations over a decade ago. In 2003, Sun bought a SCOsource license so that Sun could open source the SVRX source code in its "OpenSolaris" product without breaching confidentiality restrictions from the 1994 agreement. SCO accused IBM of doing essentially the same thing (releasing confidential code to the public by way of open source products), and sought hundreds of millions of dollars in damages. SCO's argument, and its expert analysis of its purported IBM damages, are therefore relevant impeachment evidence should SCO attempt to minimize the significance of the provisions lifting confidentiality restrictions in the Sun SCOsource license.

3 Novell reserves the right to revisit this issue should there be any subsequent adjudication or trial in this action or any enlargement of the issues for trial beyond that contemplated by the August 17, 2007 Joint Statement.

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

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 REPLY MEMORANDUM IN
SUPPORT OF ITS 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, Inc. ("SCO"), respectfully submits its Reply Memorandum in support of its Motion In Limine to Exclude All Evidence Related to Other Litigation and Commentary Thereon.

ARGUMENT

Novell's Opposition fails to address any of SCO's bases for moving to preclude reference to the SCO v. IBM litigation. While Novell acknowledges that the IBM litigation should not "play a significant role" in the trial, it has advanced no basis for that litigation to play any role in the trial. Raising three potential scenarios, Novell fails to explain why reference to the IBM litigation would be necessary or relevant under any scenario, or to explain why such references would not be unduly prejudicial.

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.

The same is true for the exhibits Novell intends to admit. To the extent that SCO's financial records would be relevant or admissible at trial, the purpose for which Novell might offer those records would not necessarily reach all statements contained in those records. Novell has not proffered what relevance statements relating to the IBM litigation would have on any

matter to be tried in this action. Absent a showing of need for the admission of these statements within the financial records, the exhibits should be redacted to remove reference to irrelevant and prejudicial information.

Finally, Novell suggests that specific reference to the IBM matter may be a proper basis for cross-examination and impeachment of SCO witnesses, in the event that any witness attempts to minimize the importance of the Sun SCOsource license. Novell has not set forth how "SCO's argument," or its expert analysis of damages arising from the IBM litigation, would be proper cross-examination material for any particular witness who expresses an opinion regarding the significance of these provisions. Nor has Novell demonstrated how such opinion would be material, so as to warrant the introduction of extrinsic evidence for impeachment. See, e.g., Fisher v. Champion, 943 F.2d 57, 1991 WL 166402, at *2 (10th Cir. Aug. 28, 1991) (Ex. A) (approving trial court's exclusion of extrinsic evidence offered for impeachment pertaining to a collateral matter). Until and unless Novell makes such a showing, Novell, its representatives and witnesses should be precluded from referencing the IBM litigation before the 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,

2

gratuitous information regarding the IBM litigation can and should be redacted therefrom. Novell should be directed to alert the Court outside the presence of the jury in the event that it seeks to admit any such article, in order to afford the Court the opportunity to determine the admissibility of the article, as well as the propriety of redacting any unnecessary reference to irrelevant matters, and particularly the IBM litigation, prior to its admission.

CONCLUSION

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 4th day of September, 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

DORSEY & WHITNEY LLP
Devan V. Padmanabhan

By: /s/ Edward Normand


[ back to top ]

3

CERTIFICATE OF SERVICE

Plaintiff/Counterclaim-Defendant, The SCO Group, Inc., hereby certifies that on this 4th day of September, 2007 a true and correct copy of the foregoing SCO'S REPLY MEMORANDUM IN SUPPORT OF ITS 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

5


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