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SCO and Novell File Proposed Witness Lists. Again. - Updated 2Xs
Tuesday, February 02 2010 @ 12:57 PM EST

The parties have filed their proposed witness lists in SCO v. Novell, so this is who you'll probably see testifying, either in person or by deposition, as well as the exhibits the parties expect they will use at trial in March:

02/01/2010 - 622 - Proposed Exhibit List and Witness List (Rule 26(a)(3) Disclosures) by Defendant Novell, Inc... (Attachments: # 1 Exhibit A-1, # 2 Exhibit A-2, # 3 Exhibit B, # 4 Exhibit C-1, # 5 Exhibit C-2)(Brennan, Sterling) (Entered: 02/01/2010)

02/01/2010 - 623 - Proposed Exhibit List and Witness List (Supplemental Rule 26(a)(3) Disclosures) by Plaintiff SCO Group.. (Normand, Edward) (Entered: 02/01/2010)

SCO's is a supplemental list, because it filed its original list in August of 2007, so it has added some new names to the complete list, Ryan TIbbits, Andrew Nagle, and Erik Hughes. Here's the original list [PDF]. I don't remember an order saying the parties could supplement their lists. Novell seems to think that they can only supplement their exhibits if the court or SCO agree, so Novell submits a proposed supplemental list of exhibits as Exhibit C, in case that happens. The rest is the same as back in August of 2007, when Novell filed its list [PDF].

Here's Rule 26, which is the rule that governs such lists.

SCO expects to present its SCOsource announcement and some Novell memoranda from 1995, the SunSoft and Prentice-Hall (if you can believe it) letters from 1996, one to Microsoft from 1996, which I don't remember seeing, "IBM, Linux and You", and "all declarations the parties have filed in this case and all exhibits to those declarations."

The "IBM, Linux and You" exhibit is the name of a talk given by an IBM executive in Indonesia in 2005 at a Red Hat conference but which was apparently first given in September of 2003, which says "Unix is a pre-write of Linux." Is that really all they have? Slide 3 clearly says that Linux is a "UNIX-like operating system." SCO has it on its website, if you wish to see it or you can get the PDF here.

I find SCO listing this lame exhibit, a PowerPoint slide presentation, very significant, in that it indicates two things to me:

1) that SCO intends to present materials it hopes the jury will be fooled by. If the only way to "prove" that Linux derives from Unix is a PowerPoint presentation about something else, where a word is used that might be ambiguous on the slide but no doubt wasn't at all in the speech, they are desperate. Unix and Linux are both POSIX-compliant operating systems. That is all pre-write means in this talk, that Unix and Linux are not like Windows, a big pile of "integrated" spaghetti code no one can really get a handle on, but are more like Lego. If one part fails, the whole house doesn't fall down. They are conceptually similar in that sense. And if you think about it, the word pre-write means coming up with ideas, not writing them down: "The creation and arrangement of ideas preliminary to writing." The ideas are POSIX standards, then. No doubt that is what the speaker meant. But Linux was independently developed, meaning written, following the standards but not copying the UNIX code. And slide 7 shows where IBM thought it was useful and where UNIX was a better choice, which would make no sense if they were the same in every way. In short, lame, lame, lame.

And 2), I gather SCO would like to bring up methods and concepts through the back door this way, even though the court already ruled they can't bring it up. But they have a new judge now, who seems inclined to say yes to whatever they ask for if he can find a way, so I view this exhibit as SCO foreshadowing. If you recall, in SCO's 2003 letter to Questar, Darl McBride claimed code copying that made Linux a "derivative work" but also methods:

The vast majority of UNIX software used in enterprise applications today is a derivative work of the software originally distributed under our UNIX License....Many Linux contributors were originally UNIX developers who had access to UNIX source code distributed by AT&T and were subject to confidentiality agreements, including confidentiality of the methods and concepts involved in software design. We have evidence that portions of UNIX System V software code have been copied into Linux and that additional other portions of UNIX System V software code have been modified and copied into Linux, seemingly for the purposes of obfuscating their original source.
I consider that poppycock, and have written about it at length, but if what SCO wants to use is this slide presentation, I deduce that they know it too. If any of those claims were true, they'd have real evidence to prove it.
SCO's materials on its website are not really what I expect them to bring up at trial, by the way. Paul Murphy, for example, isn't likely to be used any further than on that list, I would think. SCO calls him an analyst. And even the witness list isn't for sure. For example, while Maureen O'Gara is listed still on SCO's witness list, I can't imagine what usefulness she has now that the court has just ruled that a decline in stock value isn't special damages SCO can claim. But with SCO, who knows? It's a very small group of willing helpers now.

Update: There is an amended list from SCO:

02/02/2010 - 624 - Proposed Exhibit List and Witness List (Amended Supplemental Rule 26(a)(3) Disclosures) by Plaintiff SCO Group.. (Normand, Edward) (Entered: 02/02/2010)

The only changes we note are:
  • added "5/18/2007 James Decl. Ex. 51, Ex. 1010 to the 2/6/07 Deposition of Chris Stone, and any corresponding video" (along with some exhibits) to the list of exhibits they "may" use

  • added URL (http://www.novell.com/licensing/ntap/legal.html) to the list of exhibits they "may" use (this is the site listing Novell's copyright registrations and their correspondence with The SCO Group regarding the litigation.

Presumably they may use Ms. MOG if they are thinking of playing the Chris Stone video.

I note the footnote:

1 In a letter dated June 28, 2007, SCOís counsel informed Novellís counsel that Novell has waived the attorney-client privilege with respect to many documents listed on Novellís privilege logs, including documents that Novell produced in redacted form and documents that Novell has withheld entirely. With respect to most of these documents, the parties appear to be in disagreement as to whether there has been any waiver and, if so, the extent of its scope and the potential relevance of the referenced documents, but the parties are continuing to meet and confer on the issue. SCO reserves the right to supplement the information provided in its Pretrial Disclosures with any additional documents that Novell has improperly redacted or withheld based on its privilege objection, as well as with the names and contact information of any other witnesses identified through any such documents.
It's in the original SCO document, but I noticed it more now, because this is a tactic the Boies Schiller firm used successfully in the Lehman case where Boies represents Barclays.

Update 2: SCO has supplemented again:

02/03/2010 - 625 - Proposed Exhibit List and Witness List (Second Amended Supplemental Rule 26(a)(3) Disclosures) by Plaintiff SCO Group.. (Normand, Edward) (Entered: 02/03/2010)

This time, they've added three new exhibits: "Letter to X/Open" dated June 19, 1996; "Letter to SunSoft" dated May 23, 1996; and "Novell letters to partners" dated January 26, 1996. All three are "May Use". The SunSOft letter came up at the first trial when Greg Jones was on the stand, if you recall. It was SCO that brought them up at trial, actually, the various letters to SunSoft, Microsoft, etc, and they have them all on their legal rights page.I'm not a lawyer, but even I can see the letters talk about a transfer of the products, not the IP, and that they all referenced prior contracts that would be affected by the change in who would be providing Unix to the marketplace.

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