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Microsoft Files Cross Motion to Dismiss Novell's WordPerfect Antitrust Case; Novell Opposes - Updated
Thursday, November 19 2009 @ 01:37 PM EST

There are more filings in the Novell v. Microsoft antitrust case over WordPerfect. Many, many more, mainly exhibits, a total of about 2,540 pages. Some exhibits themselves run to nearly 200 pages, and Novell has 158 exhibits. So, what is happening?

Last time we looked in on this case, the parties had filed summary judgment motions. Now Microsoft has filed a cross motion asking the court to dismiss Novell's complaint, and Novell has filed a response in opposition. Very much at issue are exhibits in the Comes antitrust case against Microsoft. Believe it or not, no one had adequately set up a database system to be able to search through the exhibits efficiently. So Novell wanted Microsoft to look for what it was asking for in discovery, and Microsoft wanted Novell to have to do that. And the court didn't press Microsoft much. And so at the end of the day, there was no evidence on some key points that either party could find.

Groklaw is now working on such a searchable system, which we hope will be available in about a week's time, if all keeps going well, so you and I and the world can search the exhibits easily. It may be too late for this litigation, and there may not be any more relevant evidence to find -- how I wish I'd known there was this need earlier -- but now that we know, we are working on it and at least it will be in place for others. Anyway, while the database Microsoft has is more complete than the Comes materials made public in that litigation, we certainly can arrange what we have better than that, and we are just a bunch of volunteers. Capice?

If you look carefully, you will see that one of the emails [PDF] we posted on that last article is now referenced in Novell's Response as footnote 4 (I think the Hassid affidavit has transposed 4 and 5, by the way). It could be coincidence. But if not, this is surely worth doing. Anyway, it's what Groklaw was born for. It's Open Source, so many eyeballs make bugs shallow. If they belong to geeks, you can throw in some technology, and solutions are possible that law firms often can't achieve on their own. And yes, if it were the other side searching, I'd still do it, although I'd have some questions about the plausibility of such an expressed need in this case.

We have only the following for now. If you want more of the filings, please hit the tip box. This is too much for us. The two affidavits list what the exhibits are, so you can tell if it's something you care about:

Here's the complete list, just to give you an idea of how massive these filings are:

11/13/2009 - 104 - Cross MOTION for Summary Judgment by Microsoft Corporation. Responses due by 11/30/2009 (Attachments: # 1 Text of Proposed Order, # 2 Memorandum of Law In Support, # 3 Appendix Unpublished Cases, # 4 Appendix Ex A, # 5 Appendix Ex B, # 6 Affidavit of Steven Holley, # 7 Affidavit Ex 1, # 8 Affidavit Ex 2, # 9 Affidavit Ex 3, # 10 Affidavit Ex 4, # 11 Affidavit Ex 5, # 12 Affidavit Ex 6, # 13 Affidavit Ex 7, # 14 Affidavit Ex 8, # 15 Affidavit Ex 9, # 16 Affidavit Ex 10, # 17 Affidavit Ex 11, # 18 Affidavit Ex 12, # 19 Affidavit Ex 13, # 20 Affidavit Ex 14, # 21 Affidavit Ex 15, # 22 Affidavit Ex 16, # 23 Affidavit Ex 17, # 24 Affidavit Ex 18, # 25 Affidavit Ex 19, # 26 Affidavit Ex 20, # 27 Affidavit Ex 21, # 28 Affidavit Ex 22, # 29 Affidavit Ex 23, # 30 Affidavit Ex 24, # 31 Affidavit Ex 25, # 32 Affidavit Ex 26, # 33 Affidavit Ex 27, # 34 Affidavit Ex 28, # 35 Affidavit Ex 29, # 36 Affidavit Ex 30, # 37 Affidavit Ex 31 (Notice of Filing of Lengthy Exhibit), # 38 Affidavit Ex 32, # 39 Affidavit Ex 33, # 40 Affidavit Ex 34, # 41 Affidavit Ex 35, # 42 Affidavit Ex 36, # 43 Affidavit Ex 37, # 44 Affidavit Ex 38, # 45 Affidavit Ex 39, # 46 Affidavit Ex 40, # 47 Affidavit Ex 41, # 48 Affidavit Ex 42, # 49 Affidavit Ex 43 (Notice of Filing Lengthy Exhibit), # 50 Affidavit Ex 44, # 51 Affidavit Ex 45, # 52 Affidavit Ex 46, # 53 Affidavit Ex 47, # 54 Affidavit Ex 48, # 55 Affidavit Ex 49, # 56 Affidavit Ex 50, # 57 Affidavit Ex 51, # 58 Affidavit Ex 52, # 59 Affidavit Ex 53, # 60 Affidavit Ex 54, # 61 Affidavit Ex 55, # 62 Affidavit Ex 56, # 63 Certificate of Service)Associated Cases: 1:00-md-01332-JFM, 1:05-cv-01087-JFM(Major, Alexander) (Entered: 11/13/2009)

11/13/2009 - 105 - NOTICE by Microsoft Corporation re (104 in 1:05-cv-01087-JFM) MOTION for Summary Judgment Notice of Service of Lengthy Exhibits Associated Cases: 1:00-md-01332-JFM, 1:05-cv-01087-JFM(Major, Alexander) (Entered: 11/13/2009)

11/13/2009 - 106 - RESPONSE in Opposition re (101 in 1:05-cv-01087-JFM) MOTION for Summary Judgment filed by Novell, Inc.. Replies due by 11/30/2009. (Attachments: # 1 Affidavit of Alex Hassid, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26, # 28 Exhibit 27, # 29 Exhibit 28, # 30 Exhibit 29, # 31 Exhibit 30, # 32 Exhibit 31, # 33 Exhibit 32, # 34 Exhibit 33, # 35 Exhibit 34, # 36 Exhibit 35, # 37 Exhibit 36, # 38 Exhibit 37, # 39 Exhibit 38, # 40 Exhibit 39, # 41 Exhibit 40, # 42 Exhibit 41, # 43 Exhibit 42, # 44 Exhibit 43, # 45 Exhibit 44, # 46 Exhibit 45, # 47 Exhibit 46, # 48 Exhibit 47, # 49 Exhibit 48, # 50 Exhibit 49, # 51 Exhibit 50, # 52 Exhibit 51, # 53 Exhibit 52, # 54 Exhibit 53, # 55 Exhibit 54, # 56 Exhibit 55, # 57 Exhibit 56, # 58 Exhibit 57, # 59 Exhibit 58, # 60 Exhibit 59, # 61 Exhibit 60, # 62 Exhibit 61, # 63 Exhibit 62, # 64 Exhibit 63, # 65 Exhibit 64, # 66 Exhibit 65, # 67 Exhibit 66, # 68 Exhibit 67, # 69 Exhibit 68, # 70 Exhibit 69, # 71 Exhibit 70, # 72 Exhibit 71, # 73 Exhibit 72, # 74 Exhibit 73, # 75 Exhibit 74, # 76 Exhibit 75, # 77 Exhibit 76, # 78 Exhibit 77, # 79 Exhibit 78, # 80 Exhibit 79, # 81 Exhibit 80, # 82 Exhibit 81, # 83 Exhibit 82, # 84 Exhibit 83, # 85 Exhibit 84, # 86 Exhibit 85, # 87 Exhibit 86, # 88 Exhibit 87, # 89 Exhibit 88, # 90 Exhibit 89, # 91 Exhibit 90, # 92 Exhibit 91, # 93 Exhibit 92, # 94 Exhibit 93, # 95 Exhibit 94, # 96 Exhibit 95, # 97 Exhibit 96, # 98 Exhibit 97, # 99 Exhibit 98, # 100 Exhibit 99, # 101 Exhibit 100, # 102 Exhibit 101, # 103 Exhibit 102, # 104 Exhibit 103, # 105 Exhibit 104, # 106 Exhibit 105, # 107 Exhibit 106, # 108 Exhibit 107, # 109 Exhibit 108, # 110 Exhibit 109, # 111 Exhibit 110, # 112 Exhibit 111, # 113 Exhibit 112, # 114 Exhibit 113, # 115 Exhibit 114, # 116 Exhibit 115, # 117 Exhibit 116, # 118 Exhibit 117, # 119 Exhibit 118, # 120 Exhibit 119, # 121 Exhibit 120, # 122 Exhibit 121, # 123 Exhibit 122, # 124 Exhibit 123, # 125 Exhibit 124, # 126 Exhibit 125, # 127 Exhibit 126, # 128 Exhibit 127, # 129 Exhibit 128, # 130 Exhibit 129, # 131 Exhibit 130, # 132 Exhibit 131, # 133 Exhibit 132, # 134 Exhibit 133, # 135 Exhibit 134, # 136 Exhibit 135, # 137 Exhibit 136, # 138 Exhibit 137, # 139 Exhibit 138, # 140 Exhibit 139, # 141 Exhibit 140, # 142 Exhibit 141, # 143 Exhibit 142, # 144 Exhibit 143, # 145 Exhibit 144, # 146 Exhibit 145, # 147 Exhibit 146, # 148 Exhibit 147, # 149 Exhibit 148, # 150 Exhibit 149, # 151 Exhibit 150, # 152 Exhibit 151, # 153 Exhibit 152, # 154 Exhibit 153, # 155 Exhibit 154, # 156 Exhibit 155, # 157 Exhibit 156, # 158 Exhibit 157)Associated Cases: 1:00-md-01332-JFM, 1:05-cv-01087-JFM(Johnson, Jeffrey) (Entered: 11/13/2009)

11/13/2009 - 107 - NOTICE by Novell, Inc. re (106 in 1:05-cv-01087-JFM) Response in Opposition to Motion,,,,,,,,,,,,, Notice of Service of Lengthy Exhibits Associated Cases: 1:00-md-01332-JFM, 1:05-cv-01087-JFM(Johnson, Jeffrey) (Entered: 11/13/2009)

We can get an idea of what's happening from the documents we uploaded, of course, but we can't get the full picture. So if you care, let me know.

I'll describe for you what's happening in more detail in a bit, but I wanted to get the list up so you can begin looking through all the exhibits while I work on an article about it.

I see Novell has found quite a lot already. Microsoft, Hassid tells the court in his affidavit, did turn over a database, but it can't provide it to the court because it "requires special software". Perfect, no?

My other worry is that at the end of the day, all these materials will be lost, sent to the deep by some confidentiality term in an agreement. It could happen, so that I why I thought I should tell you what is happening and that I need your help to get this done thoroughly. There are some fascinating documents on the list from the Canopy/Caldera days, their litigation against Microsoft, as well as the Comes case.

I so wish all filings in civil trials, subject to confidentiality rules, would be made public for free. It's so obvious to me that people do want to know, and in a digital age, it's so easy to let the public have access to this information without having to pay an arm and a leg. It's $.08 a page, which seems very little, but when you get into thousands of pages for just one article for just one case, well, you can do math. It really adds up fast. And that just doesn't seem like the American way to me, where we have always believed in the public's right to access their court system.

UPDATE:

Thanks to you and your generous help, we have been able to get all the exhibits. Here, to start, are the Microsoft exhibits, and we'll add the Novell exhibits after our fingers uncramp:

11/13/2009 - 104 - Cross MOTION for Summary Judgment by Microsoft Corporation. Responses due by 11/30/2009 (Attachments: # 1 Text of Proposed Order, # 2 Memorandum of Law In Support, # 3 Appendix Unpublished Cases, # 4 Appendix Ex A, # 5 Appendix Ex B, # 6 Affidavit of Steven Holley, # 7 Affidavit Ex 1, # 8 Affidavit Ex 2, # 9 Affidavit Ex 3, # 10 Affidavit Ex 4, # 11 Affidavit Ex 5, # 12 Affidavit Ex 6, # 13 Affidavit Ex 7, # 14 Affidavit Ex 8, # 15 Affidavit Ex 9, # 16 Affidavit Ex 10, # 17 Affidavit Ex 11, # 18 Affidavit Ex 12, # 19 Affidavit Ex 13, # 20 Affidavit Ex 14, # 21 Affidavit Ex 15, # 22 Affidavit Ex 16, # 23 Affidavit Ex 17, # 24 Affidavit Ex 18, # 25 Affidavit Ex 19, # 26 Affidavit Ex 20, # 27 Affidavit Ex 21, # 28 Affidavit Ex 22, # 29 Affidavit Ex 23, # 30 Affidavit Ex 24, # 31 Affidavit Ex 25, # 32 Affidavit Ex 26, # 33 Affidavit Ex 27, # 34 Affidavit Ex 28, # 35 Affidavit Ex 29, # 36 Affidavit Ex 30, # 37 Affidavit Ex 31 (Notice of Filing of Lengthy Exhibit), # 38 Affidavit Ex 32, # 39 Affidavit Ex 33, # 40 Affidavit Ex 34, # 41 Affidavit Ex 35, # 42 Affidavit Ex 36, # 43 Affidavit Ex 37, # 44 Affidavit Ex 38, # 45 Affidavit Ex 39, # 46 Affidavit Ex 40, # 47 Affidavit Ex 41, # 48 Affidavit Ex 42, # 49 Affidavit Ex 43 (Notice of Filing Lengthy Exhibit), # 50 Affidavit Ex 44, # 51 Affidavit Ex 45, # 52 Affidavit Ex 46, # 53 Affidavit Ex 47, # 54 Affidavit Ex 48, # 55 Affidavit Ex 49, # 56 Affidavit Ex 50, # 57 Affidavit Ex 51, # 58 Affidavit Ex 52, # 59 Affidavit Ex 53, # 60 Affidavit Ex 54, # 61 Affidavit Ex 55, # 62 Affidavit Ex 56, # 63 Certificate of Service)Associated Cases: 1:00-md-01332-JFM, 1:05-cv-01087-JFM(Major, Alexander) (Entered: 11/13/2009)

Update: We have completed the Novell exhibits now, and you'll find them here.

Update 2: Here's the list of all the exhibits Microsoft attached to the Affidavit of Steven L. Holley:

  • Exhibit 1 is a copy of the Asset Purchase Agreement between Novell and Caldera, dated July 23, 1996

  • Exhibit 2 is a copy of the Settlement Agreement between Microsoft and Caldera, dated Jan. 7, 2000

  • Exhibit 3 is a copy of Novell's Form 10-Q, dated September 13, 1994

  • Exhibit 4 is certain pages from the transcript of the oral argument on Microsoft's motion to dismiss Novell's complaint, dated June 7, 2005

  • Exhibit 5 is certain pages of the Declaration of Roger G. Noll, dated May 1, 2009

  • Exhibit 6 is an excerpt from the Reply Report of Roger G. Noll, dated July 24, 2009

  • Exhibit 7 is a copy of a memo from David R. Bradford to the Novell board of directors, dated Nov. 18, 1994

  • Exhibit 8 is a copy of the Declaration of Stephen J. Hill, dated May 2, 2002, submitted in Novell, Inc. v. Canopy Group, Inc.

  • Exhibit 9 is a copy of a memo from David R. Bradford to Novell's board of directors, dated April 12, 1995

  • Exhibit 10 is a copy of a draft complaint captioned Novell, Inc. v. Microsoft Corp. (D. Utah)

  • Exhibit 11 is a copy of a memorandum from David R. Bradford to the Novell board of directors, dated April 27, 1995

  • Exhibit 12 is a copy of a memo from David R. Bradford to Bob Frankenberg, dated April 27, 1995

  • Exhibit 13 is a copy of a memo from David R. Bradford to Bob Frankenberg, dated May 10, 1995

  • Exhibit 14 is a copy of a letter from Robert J. Frankenberg to William H. Gates, dated June 23, 1995

  • Exhibit 15 is a copy of a letter from William H. Gates to Robert J. Frankenberg, dated July 20, 1995

  • Exhibit 16 is a copy of a letter from Robert J. Frankenberg to William H. Gates, dated Aug. 21, 1995

  • Exhibit 17 is a copy of Novell's Form 10-Q, dated March 12, 1996

  • Exhibit 18 is a copy of an email from David Bradford to Robert Frankenberg, dated May 9, 1996

  • Exhibit 19 is a copy of a memorandum from Rob Hicks to David Bradford, dated April 23, 1996

  • Exhibit 20 is a copy of the minutes of a meeting of Novell's board of directors, dated May 23, 1996

  • Exhibit 21 is a copy of a memo from Stephen Hill to David Bradford, dated May 23, 1996

  • Exhibit 22 is a copy of a memo from David Bradford to Bob Frankenberg, dated July 23, 1996

  • Exhibit 23 is a copy of a memo from David Bradford to Bob Frankenberg, Mary Burnside and Jim Tolonen, dated July 10, 1996

  • Exhibit 24 is an excerpt from the transcript of the deposition of Bryan Wayne Sparks, taken in Novell, Inc. v. Canopy Group, Inc. on September 10, 2001

  • Exhibit 25 is an excerpt from the transcript of the deposition of Robert Frankenberg, dated March 25, 2009

  • Exhibit 26 is an excerpt of the deposition of Ranson H. Love, taken in Novell, Inc. v. Canopy Group, Inc. on August 1, 2001

  • Exhibit 27 is an excerpt of the transcript of the deposition of Greg Jones, taken in Novell, Inc. v. Canopy Group, Inc. on Feb. 20, 2002

  • Exhibit 28 is a copy of a letter from David R. Bradford to Gary Reback, dated Aug. 16, 1996

  • Exhibit 29 is a copy of the complaint filed by Caldera in Caldera, Inc. v. Microsoft Corp., dated July 23, 1996

  • Exhibit 30 is a copy of the amended complaint filed by Caldera in Caldera, Inc. v. Microsoft Corp., dated Feb. 12, 1998

  • Exhibit 31 is a copy of the complaint filed by Novell in this action, dated Nov. 12, 2004

  • Exhibit 32 is a copy of an order granting a motion to compel filed by Microsoft in this action, dated Aug. 26, 2008

  • Exhibit 33 is a copy of the complaint filed by the United States in United States v. Microsoft Corp. dated July 15, 1994

  • Exhibit 34 is a copy of an email from David Bradford to Stephen Hill, dated Feb. 28, 1997

  • Exhibit 35 is a copy of a letter from David R. Bradford to Stephen J. Hill, dated March 31, 1998

  • Exhibit 36 is a copy of a fax from Sherise Crosby to Steve Hill, dated August 9, 1996

  • Exhibit 37 is a copy of a fax from Renata M. Sos to Stephen J. Hill, dated August 21, 1996

  • Exhibit 38 is a copy of an email from David Bradford to Geoff Boorman et al, dated May 11, 1998

  • Exhibit 39 is a copy of an email from David Bradford to philm@summitlaw.com (with a copy to shill@scm.com and Richard Rife), dated September 3, 1998

  • Exhibit 40 is excerpts of a transcript of the oral argument on Novell's motion to intervene in Caldera, Inc. v. Microsoft Corp. dated July 16, 1998

  • Exhibit 41 is a copy of an email exchange between David Bradford and Stephen Hill, dated July 29, 1998

  • Exhibit 42 is a copy of an email from David Bradford to Peter Troop, dated Jan. 7, 2000

  • Exhibit 43 is a copy of Novell's complaint in Novell, Inc. v. Canopy Group, Inc. (originally captioned Novell, Inc. v. Caldera, Inc.), filed June 16, 2000

  • Exhibit 44 is a copy of the ruling on Novell's motion for partial summary judgment in Novell, Inc. v. Canopy Group, Inc., dated August 14, 2002

  • Exhibit 45 is a copy of the judgment in Novell, Inc. v. Canopy Group, Inc., filed February 10, 2003

  • Exhibit 46 is a copy of the Brief of Appellant Microsoft Corporation, filed on appeal from the motion to dismiss, dated April 13, 1006

  • Exhibit 47 is a copy of Microsoft's Memorandum in Support of its Motion to Compel Production of Documents, Aug. 8, 2008

  • Exhibit 48 is a copy of Microsoft's Memorandum in Opposition to Novell's Motion for Summary Judgment on Six Defenses, dated Aug. 22, 2008

  • Exhibit 49 is a copy of an order denying a motion for partial summary judgment filed by Novell in this action, dated Aug. 28, 2008

  • Exhibit 50 is a copy of Novell's complaint to the EU Commission against Microsoft, dated April 26, 1993

  • Exhibit 51 is a copy of a memo from David R. Bradford to file, dated April 1, 1996

  • Exhibit 52 is a copy of the Affidavit of Ryan L. Richards, dated April 23, 2009

  • Exhibit 53 is excerpts from the transcript of the deposition of Robert Hicks, taken in Novell, Inc. v. Canopy Group, Inc. on July 13, 2001

  • Exhibit 54 is a copy of the order of dismissal in Caldera, Inc. v. Microsoft Corp., dated Jan. 10, 2000

  • Exhibit 55 is a copy of the stipulation of settlement in Caldera, Inc. v. Microsoft Corp.

  • Exhibit 56 is excerpts from the transcript of the deposition of Roger G. Noll, Ph.D, dated Sept. 10, 2009.

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