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Novell Responds to SCO's Objections to Its Bill of Costs (& Some Bankruptcy Bills) - Updated
Saturday, April 04 2009 @ 12:39 AM EDT

Novell has responded [PDF] to SCO's Objections to Novell's Bill of Costs, submitted as the prevailing party in SCO v. Novell.

Novell defends its Bill of Costs generally, in all the four categories that SCO listed objections to -- room rental fees, video fees, other deposition costs, and deposition costs concerning the SCO v. IBM litigation. Novell says it will withdraw a paltry $2,522.74 in conference room charges, but defends all the rest of its costs. SCO had objected to $50,586.14 in Novell's costs out of the total of $124,331.70, so a $2,522.74 reduction isn't much.

SCO also is objecting to video syncing fees -- syncing the video with the transcripts, so as to make the video searchable by keyword. SCO had cited a case -- In re Williams Secs. Litig.-WCG Subclass -- but Novell points out the case actually supports Novell, which we had noticed too. Novell attaches it as Exhibit 3 [PDF], and we have it here as plain text.

SCO *didn't* contest, Novell points out, most of the bill of costs, and it didn't contest that each of the depositions for which Novell seeks to recover costs were "reasonably necessary to the litigation of the case", which is the standard.

We also have some boring filings in the bankruptcy, like an 18th bill from Tanner. 18th. It covers March, so here's hoping Tanner is lining up some new customers. I'm thinking this revenue stream might not spring eternal.

The Novell filing:

04/03/2009 - 594 - RESPONSE re 593 Objections, to Novell's Bill of Costs filed by Defendant Novell, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Sneddon, Heather) (Entered: 04/03/2009)
The bankruptcy filings:
03/31/2009 - 732 - Monthly Application for Compensation [Eighteenth] for Services and Reimbursement of Expenses, as Accountants to the Debtors for the Period from March 5, 2009 through March 31, 2009 Filed by Tanner LC. Objections due by 4/20/2009. (Attachments: # 1 Notice # 2 Exhibit A # 3 Certificate of Service and Service List) (Makowski, Kathleen) (Entered: 03/31/2009)

03/31/2009 - 733 - Quarterly Application for Compensation [Sixth] for Services and Reimbursement of Expenses, as Accountants to the Debtors in Possession for the Period from January 1, 2009 Through March 31, 2009 Filed by Tanner LC. Objections due by 4/20/2009. (Attachments: # 1 Notice # 2 Exhibit A # 3 Exhibit B # 4 Exhibit C # 5 Certificate of Service and Service List for Fee App # 6 Certificate of Service and Service List for Notice only) (Makowski, Kathleen) (Entered: 03/31/2009)

04/01/2009 - 734 - Affidavit/Declaration of Service Regarding [Signed] Order Granting and Sustaining Debtors' First (Non-Substantive) Omnibus Objection to Claims Pursuant 1o 11 U.S.C. Section 502(b) and Bankruptcy Rule 3007 (related document(s) 730 ) Filed by The SCO Group, Inc.. (O'Neill, James) (Entered: 04/01/2009)

If you are curious which conference room charges Novell is withdrawing, they mention Tabs 51, 52 and 62. I gather that would be these:
51. Conference Room Rental for J. Maciaszek Deposition - 5/3/2007 - The Michelangelo Hotel - $795.63

52. Conference Room Rental for J. Maciaszek Deposition - 5/3/2007 - The Michelangelo Hotel - $1,297.10

62. Conference Room Rental for A. Mohan Deposition - 6/6/2007 - Michael A. Jacobs - $430.01

Novell's explanation goes like this:
SCO challenges $7,592.11 in room rental fees for 8 depositions. Morrison & Foerster will withdraw its request for the conference room charges reflected on Tabs 51, 52, and 62, totaling $2,522.74. Each of the remaining depositions took place in a location in which neither Morrison & Foerster nor Anderson & Karrenberg has an office. In such circumstances, courts regularly tax the costs of room rental for out-of-town counsel.
Therefore, I think we can assume that while they rented a room for the two depositions being withdrawn, either MoFo or Anderson & Karrenberg do have offices in the city that they could have used but didn't. The Michelangelo Hotel has branches in New York and Salt Lake City, among other cities, my friend Google shows me. Novell believes the rest of its costs are necessary, and Novell attaches a couple of cases, Menasha v. News America Marketing [PDF] and Jarvis v. Ford Motor Co. [PDF], where such costs were granted.

Updated: I was trying to find some explanation of video syncing, beyond what I already showed you. Instead, I found a description, "How to Prepare for Trial, Part 3", of how one lawyer does her preparations for trial, and I think you will see from it why you might want video syncing. She does criminal law, but prep is prep:

Sometimes I just don't know what the witness is going to say, and therefore, I don't have much to write out. It's a skill to be able to think on your feet, and figure out what you want to ask on cross-examination before you start to look silly standing there, stalling.

Why do I write out my questions the rest of the time?

First, it helps me to remember to get out all of the information I need from each witness.

Second, it reminds me to use leading questions on cross-examination and to ask good open questions on direct examination.

Third, to set a witness up for impeachment, based on a prior statement, it is best to use the language from their original statement. I write out my question, using the language that the witness used in their prior statement, and then I make a note to myself where to find their prior statement (e.g. "You only saw the person demanding the money for one second. (hearing transcript, page 30, line 5)")

Going back to the binder and redweld camps, I make sure I have my questions and arguments printed and filed in each folder or divider, along with any impeachment material, exhibits I want to show the witness, or items I might use to reflect [sic] his recollection.

I think you can see how you might want to show the jury video of an earlier deposition that contradicts what the witness says in testimony at trial. You can write down "hearing transcript, page 30, line 5" but how do you find it fast in the video? That's what video syncing does for you, either in preparation or even in real time at trial, when a witness says something that you remember contradicts something said earlier that you remember you have on video, and you'd love to show it to impeach the witness.

Impeach the witness means showing the jury or judge that the witness isn't reliable, so they won't believe him or her. Perhaps you can demonstrate bias, or that they lied, or they contradicted themselves. Here's a page of instructions, apparently from a class on impeachment, that has a list of things that a lawyer can use to discredit a witness. If you saw the old movie, Twelve Angry Men, you may remember that a witness at the trial testified that she saw the defendant stab the victim, but the jury included an old man who noticed she had ridges on her nose from wearing glasses. From that, they worked out the timing and figured out that since she testified she was in bed sleeping when she heard a noise, she wouldn't have had her glasses on, and from that they finally realized her testimony might not be accurate. Notice on the list that poor eyesight or hearing can be the kind of evidence that can impeach a witness? So that's an example. Of course, in a better world, it would be the defense lawyer who'd bring that detail out at trial, not leaving it to the jury to figure out themselves.

Here's a lawyer explaining how to start a deposition, along with some comments that elaborate on preparing for depositions, and here's another explaining how to ask questions to lay a foundation to impeach a witness at a deposition.


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