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SCO Objects to IBM's Exhibits and the Hearing on the 27th Re-Set for 9:30 AM - Updated: Hearsay within Hearsay
Friday, July 24 2009 @ 06:37 PM EDT

SCO objects to IBM's Proffered Exhibits, some emails, and asks that they be excluded from the hearing. And there is a revised agenda for the 27th, but the only difference is a change in time to start the hearing. It is now set for 9:30 AM.

The five emails are variously between Eric le Blan, Hans Beyer [using the spelling SCO used, but I think it's a misspelling for Bayer], Jim Kelly, Steve Norris, Raif Awaida (with an attachment), and one chain between "various senders and recipients". The grounds for the objection are things like hearsay, hearsay within hearsay, and relevancy. Here's a Law.com article that explains what that means. Here's one relevant point: "An e-mail that is an admission by a party-opponent is 'not hearsay'."

The 'hearsay within hearsay objection is understandable from this paragraph:

Most e-mail systems, for instance, allow a person forwarding an e-mail to edit the message being forwarded. Such alteration wouldn't be discernible to the recipient. E-mails are also more prone to a kind of hearsay-within-hearsay problem: an "e-mailchain" attaches to an e-mail every e-mail that came before it in a discussion. It isn't enough to get the most recent e-mail into evidence when that e-mail attaches a string of previous e-mails. All of the prior e-mails may need to be separately authenticated and found admissible.
However, IBM can just call these folks, whichever ones it wants, to authenticate the email it needs to make its point. You have the guy on the stand, and you show the exhibit to the guy and ask, Is this your email? But the point is, SCO is making them do that. Often such things are resolved, as the Law.com article points out, in a stipulation. With SCO, they make you take the time, effort and money to prove your momma is your momma.

If you recall, IBM has also objected to SCO's customer letters on similar hearsay grounds. There, though, it makes more sense, because you have things like a letter from an employee of a contractor saying the Army will go into a swoon without OpenServer, and then he says he isn't speaking for the Army or for the contractor.

Here's an older article on Groklaw, with an overview of the Federal Rules of Evidence, including relevancy and hearsay.

All the filings:

07/23/2009 - 863 - Certificate of Service re: Debtors' Response to Objections and Oppositions of Novell and International Business Machines Corporation to the Debtor's Motion for Authority to Sell Property Outside the Ordinary Course of Business Free and Clear of Interests and for Approval of Assumption and Assignment of Executory Contracts and Unexpired Leases in Conjunction with Sale (related document(s) 860 ) Filed by The SCO Group, Inc.. (Makowski, Kathleen) (Entered: 07/23/2009)

07/24/2009 - 864 - Certificate of No Objection (No Order Required) Regarding Twenty-First Interim Application of Berger Singerman, P.A. for Compensation for Services and Reimbursement of Expenses, As Co-Counsel to the Debtors in Possession for the Period from May 1, 2009 Through May 31, 2009 (related document(s) 820 ) Filed by The SCO Group, Inc.. (Attachments: # 1 Certificate of Service and Service List) (O'Neill, James) (Entered: 07/24/2009)

07/24/2009 - 865 - Certificate of No Objection (No Order Required) Regarding Nineteenth Interim Application of Tanner LC for Compensation for Services and Reimbursement of Expenses, As Accountants to the Debtors for the Period from June 1, 2009 Through June 30, 2009 (related document(s) 823 ) Filed by The SCO Group, Inc.. (Attachments: # 1 Certificate of Service and Service List) (O'Neill, James) (Entered: 07/24/2009)

07/24/2009 - 866 - Affidavit/Declaration of Service of Kimberly A. Beck Regarding Opposition to the Debtors' Motion for Authority to Sell (related document(s) 851 ) Filed by Novell, Inc.. (Greecher, Sean) (Entered: 07/24/2009)

07/24/2009 - 867 - Amended Notice of Agenda of Matters Scheduled for Hearing (related document(s) 862 ) Filed by The SCO Group, Inc.. Hearing scheduled for 7/27/2009 at 09:30 AM at US Bankruptcy Court, 824 Market St., 6th Fl., Courtroom #3, Wilmington, Delaware. (Attachments: # 1 Certificate of Service and Service List) (Makowski, Kathleen) (Entered: 07/24/2009)

07/24/2009 - 868 - Objection to International Business Machines Corporation's Proferred Hearing Exhibits and Motion to Exclude Such Exhibits (related document(s) 856 ) Filed by The SCO Group, Inc. (Makowski, Kathleen) (Entered: 07/24/2009)

07/24/2009 - 869 - Certificate of Service Regarding Debtors' Objection to International Business Machines Corporation's Proferred Hearing Exhibits and Motion to Exclude Such Exhibits (related document(s) 868 ) Filed by The SCO Group, Inc.. (Makowski, Kathleen) (Entered: 07/24/2009)

We'll find out at the hearing if the exhibits are allowed. I hope some of you can attend.

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