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A Blizzard of Motions in Limine in SCO v. Novell - Updated: SCO's as text, Hearing Feb. 25 @9AM & Dr. Pisano's Deposition
Tuesday, February 09 2010 @ 12:56 AM EST

Motions in limine are flying in Utah like snowflakes in a winter storm, filed by both parties in SCO v. Novell. But there are a lot more from Novell than from SCO.

Novell has filed 19 more motions in limine, all filed on February 8, for a total of 20, as well as motions for a Daubert hearing to disqualify Dr. Christine A. Botosan, Dr. Gary Pisano, and G. Gervaise Davis III, three of SCO's experts. The Novell motions in limine are mainly to exclude testimony from certain witnesses of SCO's "for lack of personal knowledge," among other reasons. Like Ed Chatlos. Remember when Judge Dale Kimball was on the case, and Novell filed motions to disqualify that same testimony? Well, now they are raising it again.

SCO has filed 5 motions in limine, but they are not described in the docket, and I haven't read them yet. We can read them together. But I see one of them is titled a motion asking that certain statements of Michael Anderer "as an independent contractor" be excluded. You remember Darl McBride's once longtime friend and business associate, Mr. Anderer, the man who said that proprietary software companies would keep suing Linux until they killed it? And they don't want the jury to hear about what Judge Kimball earlier ruled about who owned the copyrights, I gather. Well, would you, if you were SCO? And they want witnesses to be told they can't mention Groklaw. Say, what? Why would anyone ever mention Groklaw in the trial? I can't imagine any circumstance where that would happen. Anyway, jurors are told not to do outside research, so even if it happened, jurors couldn't visit Groklaw, not that they wouldn't find it enlightening, until the trial was all over.

In other words, as is normal in filing motions in limine, both parties are asking the judge to decide what the trial is going to be about, in essence, by determining before anything goes before a jury what evidence will be allowed to be presented. Of course, Novell has already filed a motion in limine pointing out that one of Judge Ted Stewart's earlier orders seems to provide the metes and bounds of the trial. If he grants that first Novell motion in limine, I think this list will get pruned. Should he not grant that motion, however, he faces all of them.

I thought you'd want to see the list without waiting for us to obtain all of the exhibits, which are very numerous, and so will take a while. Here's the docket with what we have so far, and you can stop back by to see the list completely filled in:

629 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No. 2 to Determine that First Amendment Defenses Apply to Slander of Title filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit 2A, # (2) Exhibit 2B, # (3) Exhibit 2C)(Brennan, Sterling)

630 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No. 3 to Determine that SCO is a Limited Purpose Public Figure filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit 3A [PJ: This is a copy of SCO v. IBM Docket #398, which we already have here.] , # (2) Exhibit 3B, # (3) Exhibit 3C, # (4) Exhibit 3D, # (5) Exhibit 3E [PJ: This is a copy of SCO's Letter to Linux Users, which we already have here.] , # (6) Exhibit 3F-Under Seal, # (7) Exhibit 3G, # (8) Exhibit 3H, # (9) Exhibit 3I, # (10) Exhibit 3J, # (11) Exhibit 3K, # (12) Exhibit 3L, # (13) Exhibit 3M, # (14) Exhibit 3N, # (15) Exhibit 3O, # (16) Exhibit 3P-Under Seal, # (17) Exhibit 3Q, # (18) Exhibit 3R, # (19) Exhibit 3S) [PJ: 3R and 3S are under seal.](Brennan, Sterling)

631 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No. 4 to Preclude SCO from Contesting that Novell had an Objectively Reasonable, Good Faith Basis for its Statements Regarding Copyright Ownership filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit 4A)(Brennan, Sterling)

632 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No. 5 to Preclude SCO from Relying on Novell's June and August 2003 Statements as Factual Assertions of Copyright Ownership filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit 5A, # (2) Exhibit 5B, # (3) Exhibit 5C, # (4) Exhibit 5D)(Brennan, Sterling)

633 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No. 7 to Determine that Common Law Privileges Apply to Allegedly Defamatory Publications filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit 7A, # (2) Exhibit 7B, # (3) Exhibit 7C, # (4) Exhibit 7D, # (5) Exhibit 7E, # (6) Exhibit 7F)(Brennan, Sterling)

634 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No. 8 to Preclude SCO from Relying on Novell's Applications for Copyright Registration filed by Defendant Novell, Inc.. (Brennan, Sterling)

635 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No. 10 to Preclude SCO from Presenting Argument Relating to Issues Stayed Pending Arbitration filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit 10A, [PJ: This is a copy of Docket #139, which we already have here.] # (2) Exhibit 10B)[PJ: This is a copy of Docket #379, which we also have here.] (Brennan, Sterling)

636 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No. 11 to Exclude Evidence of Substantial Performance filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit 11A)(Brennan, Sterling)

637 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No. 12 to Exclude Certain Testimony from William Broderick for Lack of Personal Knowledge and Violation of Parol Evidence Rule filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit 12A)(Brennan, Sterling)

638 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No. 13 to Exclude Certain Testimony From Lawrence Bouffard for Lack of Personal Knowledge and Violation of Parol Evidence Rule filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit 13A-Under Seal)(Brennan, Sterling)

639 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No.14 to Exclude Certain Testimony from Jean Acheson for Lack of Personal Knowledge and Violation of Parol Evidence Rule filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit 14A)(Brennan, Sterling)

640 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No. 15 to Exclude Certain Testimony from Robert Frankenberg for Lack of Personal Knowledge and Violation of Parol Evidence Rule filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit 15A)(Brennan, Sterling)

641 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No. 16 to Exclude Certain Testimony from R. Duff Thompson for Lack of Personal Knowledge and Violation of Parol Evidence Rule filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit 16A, # (2) Exhibit 16B, # (3) Exhibit 16C)(Brennan, Sterling)

642 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No. 17 to Exclude Certain Testimony from Ty Mattingly for Lack of Personal Knowledge and Violation of Parol Evidence Rule filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit 17A)(Brennan, Sterling)

643 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No. 1 filed by Plaintiff SCO Group. (Normand, Edward)

644 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No. 18 to Exclude Certain Testimony from Douglas Michels for Lack of Personal Knowledge and Violation of Parol Evidence Rule filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit 18A)(Brennan, Sterling)

645 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No. 2 filed by Plaintiff SCO Group. (Normand, Edward)

646 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No. 3 filed by Plaintiff SCO Group. (Normand, Edward)

647 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No. 4 filed by Plaintiff SCO Group. (Normand, Edward)

648 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No.19 to Exclude Certain Testimony from Edward Chatlos, Burt Levine, and Kim Madsen for Lack of Personal Knowledge filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit 19A-Under Seal, # (2) Exhibit 19B-Under Seal, # (3) Exhibit 19C [PJ: Note update, below, that this was mistakenly filed, as it's different excerpts from the Burt Levine deposition; it has been replaced with this 19C, assuming the court agrees], # (4) Exhibit 19D)(Brennan, Sterling)

649 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No. 5 filed by Plaintiff SCO Group. (Attachments: # (1) Exhibit 1, # (2) Exhibit 2, # (3) Exhibit 3, # (4) Exhibit 4)(Normand, Edward)

650 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No. 9 to Preclude SCO from Contesting that Agreements that Post-Date the APA May Constitute SVRX Licenses filed by Defendant Novell, Inc.. (Brennan, Sterling)

651 - Filed & Entered: 02/08/2010
Motion in Limine
Docket Text: MOTION in Limine No. 6 to Preclude Reliance on Statements in December 2003 and March 2004 that do not Constitute Factual Assertions of Copyright Ownership filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit 6A, # (2) Exhibit 6B, # (3) Exhibit 6C)(Brennan, Sterling)

652 - Filed & Entered: 02/08/2010
Notice of Conventional Filing
Docket Text: NOTICE OF CONVENTIONAL FILING of Exhibits 3F, 3P, 3R, and 3S to filed by Defendant Novell, Inc. re [630] MOTION in Limine No. 3 to Determine that SCO is a Limited Purpose Public Figure (Brennan, Sterling)

653 - Filed & Entered: 02/08/2010
Notice of Conventional Filing
Docket Text: NOTICE OF CONVENTIONAL FILING of Exhibit 13A filed by Defendant Novell, Inc. re [638] MOTION in Limine No. 13 to Exclude Certain Testimony From Lawrence Bouffard for Lack of Personal Knowledge and Violation of Parol Evidence Rule (Brennan, Sterling)

654 - Filed & Entered: 02/08/2010
Notice of Conventional Filing
Docket Text: NOTICE OF CONVENTIONAL FILING of Exhibits 19A and 19B filed by Defendant Novell, Inc. re [648] MOTION in Limine No.19 to Exclude Certain Testimony from Edward Chatlos, Burt Levine, and Kim Madsen for Lack of Personal Knowledge (Brennan, Sterling)

655 - Filed & Entered: 02/08/2010
Motion for Daubert Hearing
Docket Text: MOTION for Daubert Hearing to Disqualify Dr. Christine A. Botosan filed by Defendant Novell, Inc.. (Attachments: # (1) Text of Proposed Order)(Brennan, Sterling)

656 - Filed & Entered: 02/08/2010
Memorandum in Support of Motion
Docket Text: MEMORANDUM in Support re [655] MOTION for Daubert Hearing to Disqualify Dr. Christine A. Botosan filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit A, # (2) Exhibit B, # (3) Exhibit C-Part1, # (4) Exhibit C-Part 2, # (5) Exhibit D, # (6) Exhibit E, # (7) Exhibit F, # (8) Exhibit G, # (9) Exhibit H, # (10) Exhibit I)(Brennan, Sterling)

657 - Filed & Entered: 02/08/2010
Motion for Daubert Hearing
Docket Text: MOTION for Daubert Hearing to Disqualify Dr. Gary Pisano filed by Defendant Novell, Inc.. (Attachments: # (1) Text of Proposed Order)(Brennan, Sterling)

658 - Filed & Entered: 02/08/2010
Memorandum in Support of Motion
Docket Text: MEMORANDUM in Support re [657] MOTION for Daubert Hearing to Disqualify Dr. Gary Pisano filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit A, # (2) Exhibit B, # (3) Exhibit C, # (4) Exhibit D)(Brennan, Sterling)

659 - Filed & Entered: 02/08/2010
Motion for Daubert Hearing
Docket Text: MOTION for Daubert Hearing to Disqualify G. Gervaise Davis III filed by Defendant Novell, Inc.. (Attachments: # (1) Text of Proposed Order)(Brennan, Sterling)

660 - Filed & Entered: 02/08/2010
Memorandum in Support of Motion
Docket Text: MEMORANDUM in Support re [659] MOTION for Daubert Hearing to Disqualify G. Gervaise Davis III filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit A)(Brennan, Sterling)

661 - Filed & Entered: 02/08/2010
Objections
Docket Text: OBJECTIONS to [625] Exhibit List(Proposed) Second Amended Supplemental Rule 26(a)(3) Pretrial Disclosures filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit A)(Brennan, Sterling)

I think this is very likely the testimony that SCO would like Mike Anderer not to provide, taken from Novell's trial brief [PDF] in 2007 prior to the first SCO v. Novell trial:
In late 2002, SCO approached Novell and asked Novell to be part of a campaign to extract licenses from the Linux community based on supposed infringement of the SVRX copyrights. Novell refused to cooperate in the scheme. In early 2003, just before SCOsource was formally launched, SCO's intellectual property consultant Michael Anderer reviewed the APA and warned Darl McBride, "We really need to be clear on what we can license. It may be a lot less than we think." (Order at 28, citing NOV-EX-166.) As a consequence, Mr. Anderer counseled further negotiations with Novell, in the hopes that SCO could convince Novell that revenue sharing from SCOsource would be a "win-win" proposition with "upside" for Novell. (NOV-EX-167.) In January 2003, SCO nevertheless launched SCOsource without Novell's consent.
I think that's it because in the SCO motion in limine seeking to exclude his statements, it mentions the APA, characterizing his opinion as just a layman's unrequested 2 cents.

As for Groklaw's 2 cents, if they tell the witnesses not to mention Groklaw, they will be letting all the witnesses know about Groklaw. No doubt they'll all come and visit after that.

Kidding. The truth is, it would be quite liberating if they did so charge the witnesses, frankly. I would be freer to write about the trial as it happens, if I know for sure no one will be stopping by until it's long over. Here's some proposed guidance on juries and the internet, by the way, if you are curious. And here's an example of what can go wrong if juries do outside research despite being told not to. And more details from BLT:

You, as jurors, must decide this case based solely on the evidence presented here within the four walls of this courtroom. This means that during the trial you must not conduct any independent research about this case, the matters in the case, and the individuals or corporations involved in the case. In other words, you should not consult dictionaries or reference materials, search the internet, websites, blogs, or use any other electronic tools to obtain information about this case or to help you decide the case. Please do not try to find out information from any source outside the confines of this courtroom.

Update: Readers have begun to do some of the motions as text. Thank you. In the interests of time, we are leaving off the header and the signature at the end, and as always, for anything that matters, go by the PDF.

Here's SCO's #1,643 [PDF], asking the court to preclude "misleading statements about the APA":

Plaintiff, The SCO Group, Inc. (“SCO”), moves in limine to preclude misleading statements concerning language in the Asset Purchase Agreement (“APA”) that was changed by Amendment No. 2 to that Agreement.

ARGUMENT

The APA was amended by Amendment No. 2 to replace the language regarding the exclusion of “all copyrights.” The Tenth Circuit’s decision makes clear that the APA is to be interpreted together with Amendment No. 2. The Court expressly stated that “Amendment No. 2 must be considered together with the APA as a unified document.” SCO Group, Inc. v. Novell, Inc., 578 F.3d 1201, 1211 (10th Cir. 2009). Amendment No. 2 was not “meant to substantively change the intent of the APA,” but “merely clarified or affirmed the intent of the APA.” Id. at 1214 n.2. As the Court of Appeals further noted: “Even if we considered the language of the APA and Amendment No. 2 to be mutually antagonistic, California law still dictates that we construe them together, following Amendment No. 2 wherever its language contradicts the APA.” Id.

Novell previously made extensive arguments to the Court referring to the language excluding “all copyrights” that was replaced by Amendment No. 2. That language is no longer in the APA and it would be misleading for Novel to make arguments in the presence of the jury that suggest the APA in fact still contains such language. SCO recognizes that in presenting extrinsic evidence it may be necessary to refer to the language that existed before Amendment No. 2 was adopted. In doing so, however, the parties should be clear that this is not the current state of the contractual language that is to be considered by the jury.

I'm pretty sure there will be quite a battle over that one. SCO is asking to win before it even begins its case, as I read it.

Here's SCO's #2, 645 [PDF], the one about not letting the jurors know about the earlier summary judgment rulings where Judge Kimball found for Novell:

Plaintiff, The SCO Group, Inc. (“SCO”), respectfully moves for an order in limine to preclude the parties and their representatives from referring to or introducing evidence concerning the now-reversed summary judgment rulings regarding copyright ownership and contract waiver rights previously entered in this matter.

ARGUMENT

In an order dated August 10, 2007, this Court (Kimball, J.) granted Novell’s motions for summary judgment on the issues of (i) Novell’s alleged ownership of the UNIX and UnixWare copyrights pursuant to the Asset Purchase Agreement (“APA”), and the amendments thereto, at issue in this litigation, and (ii) Novell’s alleged “waiver” rights pursuant to the APA, under which Novell claims (among other things) the right unilaterally and at its unfettered discretion to direct SCO to waive any and all of its rights pursuant to “SVRX Licenses” as that term is used in the APA. SCO Group, Inc. v. Novell, Inc., Civil No. 2:04CV139DAK, 2007 WL 2327587 (D. Utah. Aug. 10, 2007), rev’d in part, 578 F.3d 1201 (10th Cir. 2009). On August 24, 2009, however, the Tenth Circuit Court of Appeals reversed those rulings. SCO Group, Inc. v. Novell, Inc., 578 F.3d 1201 (10th Cir. 2009).

The Tenth Circuit’s reversal thus makes moot the summary judgment analyses and rulings that Novell owns the disputed copyrights and that Novell had the contractual right to wave SCO’s claims against IBM. There is no relevance for the jury to learn that the District Court previously made such rulings, because they were reversed by the Court of Appeals and could only serve to mislead the jury. 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.” Telum, Inc. v. E.F. Hutton Credit Corp., 859 F.2d 835 (10th Cir. 1988). Those prior rulings and analyses do not have any bearing on or relevance to the issues for the jury to decide.

Accordingly, SCO requests that the Court enter an order in limine preventing the parties and their representatives and witnesses from referencing, or eliciting or offering evidence respecting, those reversed rulings.

Here's the heart of SCO's #3, 646 [PDF] the one about not mentioning that there is a monetary judgment against SCO in favor of Novell:
Plaintiff, The SCO Group, Inc. (“SCO”), respectfully moves for an order in limine to preclude reference to Novell’s monetary judgment against SCO in this case.

ARGUMENT

After this Court’s (Kimball, J.) entry of summary judgment against SCO in August 2007, the parties conducted a bench trial in April and May 2008 concerning Novell’s counterclaims against SCO. Novell, which initially sought approximately $30 million in royalties to which it claimed it was entitled, obtained a judgment for approximately $2.5 million. The Tenth Circuit Court of Appeals subsequently reversed the August 2007 entry of summary judgment and affirmed Novell’s monetary judgment. SCO Group, Inc. v. Novell, Inc., 578 F.3d 1201 (10th Cir. 2009). For the upcoming trial, references to and evidence of Novell’s monetary judgment against SCO is not relevant to any of the issues to be tried, 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.” Telum, Inc. v. E.F. Hutton Credit Corp., 859 F.2d 835 (10th Cir. 1988). No aspect of the monetary judgment that Novell obtained relates to or touches upon the questions the jury will now consider. The judgment does not have any bearing on or relevance to the issues for the jury to decide.

In addition, any probative value in such evidence would be substantially outweighed by the danger of unfair prejudice to SCO. The fact alone that Novell has obtained the judgment may improperly prejudice the jury.

Accordingly, SCO requests that the Court enter an order in limine precluding the parties and their representatives and witnesses from referencing, or eliciting or offering testimony respecting, the monetary judgment Novell previously obtained in this case.

Here's SCO's #4, 647 [PDF], the no-grokking-allowed motion:
Plaintiff, The SCO Group, Inc. (“SCO”), respectfully moves for an order in limine to preclude reference by the parties to the various sources which have been providing publicly available commentary on this and related SCO litigation.

ARGUMENT

There are a number of websites and publications which have followed this litigation and related litigation invoking SCO. Such websites and publications and the commentary to be found there are 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.” Telum, Inc. v. E.F. Hutton Credit Corp., 859 F.2d 835 (10th Cir. 1988).

In addition, given the partisan nature of commentary, any probative value in such evidence would be substantially outweighed by the danger of unfair prejudice to SCO. indeed, the nature of the claims at issue has led to highly polarized commentary. One example is the website Groklaw.com, on which a self-described former paralegal named Pamela Jones has published and continues to publish biased, anti-SCO coverage of all pleadings, hearings, and events relating to SCO’s pursuit of its claims and defenses. There are other similar sites and commentary, and the Court should not allow Novell or its counsel or witnesses 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 motion.)

Accordingly, 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 or offer testimony respecting commentary on this case or related litigation, and not to make any references to such commentary or to the websites or publications devoted to such commentary.

Aren't they special? May I ask you to take a look at Groklaw's and my numerous awards? If any of SCO's smear were true, how did we win them?

Update: I went to look at the similar motion [PDF] SCO brought the first time this case was getting ready to go to trial, and I notice a wording shift. The earlier motion asked that there be no mention "without securing the prior permission of the court". The new one seeks a blanket order, with no wiggle room at all. So, if SCO mentioned other pro-SCO sites, or its own legal documents page, that's OK? But Novell can't mention any non-pro-SCO sites? That seems a little overreaching.

SCO's #5, 649 [PDF], for our enjoyment, the meat of the motion in limine regarding Mike Anderer, SCO's #5:

Plaintiff, The SCO Group, Inc. (“SCO”), respectfully moves for an order in limine excluding statements made by Michael Anderer as an independent contractor for SCO.

ARGUMENT

At trial, Novell may reference or offer statements made by Michael Anderer concerning the un-amended APA when he was an independent contractor for SCO.

In 2003, SCO engaged Mr. Anderer for about a year as an outside consultant under an Independent Contractor Agreement with his firm S2 Strategic Consulting, LLC. (Ex. 1; Ex. 2 at 72; Ex. 3 at 12-13, 86.) That Agreement governed his engagement and fees. (Ex. 1.) His services pursuant to the Agreement were largely limited to acting as liaison with Microsoft Corporation in the early negotiations of the SCOsource agreement with that company. (Ex. 2 at 76; Ex. 3 at 11-12, 86-87.)

There is no evidence that Mr. Anderer acted as SCO’s agent during the brief period of his engagement. (Ex. 3 at 11-12, 86.) On the contrary, all the evidence shows that he acted as an independent contractor, who played a limited role in one transaction. (Ex. 1; Ex. 2 at 72; Ex. 3 at 12-13, 86.) There is no evidence that Mr. Anderer was authorized to act on SCO’s behalf beyond this agreement, had an employment relationship with SCO, or received any salary for his services. Mr. Anderer did not have any authority to bind or speak for SCO even in its negotiations with Microsoft. (Ex. 4 at 125.) Instead, he merely brokered the early negotiations and ceased playing even this limited role when the process advanced to final negotiations, which were handled directly by SCO. (Ex. 2 at 76; Ex. 3 at 15; Ex. 4 at 125.)

Mr. Anderer himself acknowledged at his deposition that he did not have an interest in or fully understand even the terms of the Microsoft contract. (Ex. 3 at 24-25, 62-63, 76-77.) With respect to statements he made unrelated to the Microsoft negotiations, Mr. Anderer made them at his own discretion, to “put his two cents in,” and not at the request or direction of SCO. (Ex. 2 at 76; Ex. 3 at 109-10; Ex. 4 at 125.) Indeed, Mr. Anderer also acknowledged that such statements reflected the legal interpretations of a layman, reflected his own musings based on incomplete information, and were largely disregarded by SCO. (Ex. 3 at 86-87, 91-92.)

“Evidence Rule 801(d)(2)(D) provides that a statement is not hearsay if it is ‘offered against a party and is . . . a statement by the party’s agent . . . concerning a matter within the scope of the agency . . . made during the existence of the relationship.’” Merrick v. Farmers Insurance Group, 892 F.2d 1434, 1440 (9th Cir. 1990). The burden of proving the elements of the rule rests on the proponent of the evidence. Id. Here, Novell cannot meet its burden because there is no evidence even for the threshold agency requirement.

If a proffered statement was made by an independent contractor, as opposed to an agent, the statement falls outside Rule 801(d)(2)(D) and remains inadmissible hearsay. Id. (concluding the district court “properly rejected” evidence because proponent failed to establish that declarants were agents “as opposed to independent contractors”); Coleman v. Wilson, 912 F. Supp. 1282, 1296 (E.D. Cal. 1995) (inadmissibility “turns on whether [declarants] were agents”) (citation omitted); Powers v. Coccia, 861 A.2d 466, 470-01 (R.I. 2004) (excluding statements because declarants “were independent contractors, and their statements do not fall within the parameters of Rule 801(d)(2)(D)”); 5 Weinstein’s Federal Evidence § 801.33[2][b] at 801-65, 67 (2d ed. 2002) (“statements of a party's independent contractors typically do not come within Rule 801(d)(2)(D)”). Here, because Mr. Anderer’s relationship with SCO was governed by an independent contractor agreement and there is no evidence of an agency relationship, his statements should be excluded without more.

Some courts consider certain factors in determining whether an agency relationship in fact existed. These factors include whether the consultant had the authority to bind or speak for the client, whether the client had control over the consultant or directed his work in a meaningful way, whether the conclusions the consultant drew were not at his discretion, and whether the consultant was paid a salary. See Westfed Holdings, Inc. v. United States, 55 Fed. Cl. 544, 564-65 (Fed. Cl. 2003) (statements of consultants were not admissions of client because proponent failed to provide evidence that factors were met); Sabel v. Mead Johnson & Co., 737 F. Supp. 135, 139 (D. Mass. 1990) (statements inadmissible because, among other things, consultant did not have “speaking authority” or posses “the power to act” on client’s behalf). Even considering these factors, Mr. Anderer’s statements fall outside Rule 801(d)(2)(D), because there are no facts suggesting that he acted as an agent for SCO.

In addition, Mr. Anderer’s statements are irrelevant. 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.” Telum, Inc. v. E.F. Hutton Credit Corp., 859 F.2d 835 (10th Cir. 1988). There is no evidence that Mr. Anderer has any personal knowledge of the negotiations or intent of the APA. Moreover, by his own account, he formed his lay opinions without considering Amendment No. 2, which he “never saw,” or other relevant documents. (Ex. 3 at 89-92.)

Accordingly, SCO requests that the Court enter an order in limine excluding statements Mr. Anderer made when he was an independent contractor for SCO.

Update 2:Lamlaw explains the motions in limine nicely:

If you are going to listen to any witnesses in order to ascertain what the terms of the APA were supposed to be (assuming the written version is ambiguous) the lawyers on both sides of the original agreement are the most important witnesses.

Novell has testimony from Novell lawyers. There is evidence of the give and take of negotiations, etc. That kind of evidence can be useful if the writing itself is not clear. But, SCO has not proffered any evidence of that kind. Rather it has only proffered evidence by confused and misunderstood third parties.

The court is just not going to want to hear from anyone that can only repeat the phrase “lock, stock and barrel” yet is confused as to why the copyrights were not actually transferred.

The only credible outside evidence suggests that the copyrights were not transferred because there was no agreement to do so.

And right here is where the bite takes hold. Evidence by external and confused parties is simply excluded. It is called an “evidence rule” for a reason. But, as I have explained above, even in jurisdictions where the rule does not exist, the evidence is often times discarded for not being relevant or simply not credible. In other words, those jurisdictions that do not have the rule find that they do not need it because they can eliminate that kind of testimony by other means. And they routinely do so.

But, here we are. “Lack of Personal Knowledge and Violation of Parol Evidence Rule” meaning they were not there at the time and listening to their testimony violates a rule against poor quality evidence.

The negotiators, lawyers and officers involved get to talk and everyone else waits out in the hallway. It just does not matter what they think.

Just because the appellate court decided that a trial should be conducted before a jury does not mean that the appellate court thinks that such external evidence holds some value. It really only means that they prefer a more formal process than just a summary judgment. Motions in Limine is part of that formal process.

Update 3: The judge had ordered a hearing on these motions for February 25 starting at 9AM. I hope you can be there, some of you. Don't be late, if you do go. This judge likes to run a ship shape courtroom. They will have the final pre-trial conference that day too at 2 PM, so it seems like a lot for one day. But several of them are basically the same, legally speaking, so that may explain it. And if he already has an inclination to grant Novell's motion in limine #1 and restrict the trial to precisely what the court of appeals listed and not one item more, then the list would get a lot smaller right there in one fell swoop.

The docket is in paragraph style, but I'm going to line it up so you can see them more clearly and can double check that they are all on the schedule for the same day. I am mystified as to why they are not listed in numerical order:

02/09/2010 - 665 - NOTICE OF HEARING ON MOTION

  • re: 634 MOTION in Limine No. 8 to Preclude SCO from Relying on Novell's Applications for Copyright Registration,
  • 629 MOTION in Limine No. 2 to Determine that First Amendment Defenses Apply to Slander of Title,
  • 659 MOTION for Daubert Hearing to Disqualify G. Gervaise Davis III,
  • 649 MOTION in Limine No. 5,
  • 644 MOTION in Limine No. 18 to Exclude Certain Testimony from Douglas Michels for Lack of Personal Knowledge and Violation of Parol Evidence Rule,
  • 636 MOTION in Limine No. 11 to Exclude Evidence of Substantial Performance,
  • 635 MOTION in Limine No. 10 to Preclude SCO from Presenting Argument Relating to Issues Stayed Pending Arbitration,
  • 650 MOTION in Limine No. 9 to Preclude SCO from Contesting that Agreements that Post-Date the APA May Constitute SVRX Licenses,
  • 637 MOTION in Limine No. 12 to Exclude Certain Testimony from William Broderick for Lack of Personal Knowledge and Violation of Parol Evidence Rule,
  • 655 MOTION for Daubert Hearing to Disqualify Dr. Christine A. Botosan,
  • 642 MOTION in Limine No. 17 to Exclude Certain Testimony from Ty Mattingly for Lack of Personal Knowledge and Violation of Parol Evidence Rule,
  • 657 MOTION for Daubert Hearing to Disqualify Dr. Gary Pisano,
  • 630 MOTION in Limine No. 3 to Determine that SCO is a Limited Purpose Public Figure,
  • 631 MOTION in Limine No. 4 to Preclude SCO from Contesting that Novell had an Objectively Reasonable, Good Faith Basis for its Statements Regarding Copyright Ownership,
  • 646 MOTION in Limine No. 3,
  • 627 MOTION in Limine No. 1 to Exclude Evidence and Argument Concerning Claims Not Included in SCO's Appeal or the Tenth Circuit's Limited Mandate,
  • 641 MOTION in Limine No. 16 to Exclude Certain Testimony from R. Duff Thompson for Lack of Personal Knowledge and Violation of Parol Evidence Rule,
  • 651 MOTION in Limine No. 6 to Preclude Reliance on Statements in December 2003 and March 2004 that do not Constitute Factual Assertions of Copyright Ownership,
  • 645 MOTION in Limine No. 2,
  • 647 MOTION in Limine No. 4,
  • 633 MOTION in Limine No. 7 to Determine that Common Law Privileges Apply to Allegedly Defamatory Publications,
  • 638 MOTION in Limine No. 13 to Exclude Certain Testimony From Lawrence Bouffard for Lack of Personal Knowledge and Violation of Parol Evidence Rule,
  • 632 MOTION in Limine No. 5 to Preclude SCO from Relying on Novell's June and August 2003 Statements as Factual Assertions of Copyright Ownership,
  • 640 MOTION in Limine No. 15 to Exclude Certain Testimony from Robert Frankenberg for Lack of Personal Knowledge and Violation of Parol Evidence Rule,
  • 639 MOTION in Limine No.14 to Exclude Certain Testimony from Jean Acheson for Lack of Personal Knowledge and Violation of Parol Evidence Rule,
  • 648 MOTION in Limine No.19 to Exclude Certain Testimony from Edward Chatlos, Burt Levine, and Kim Madsen for Lack of Personal Knowledge,
  • 643 MOTION in Limine No. 1
: (Notice generated by Chambers/slm) Motion Hearing set for 2/25/2010 beginning 09:00 AM in Room 142 before Judge Ted Stewart. PLEASE NOTE THAT THE FINAL PRETRIAL CONFERENCE FOR THIS CASE IS ALSO SET THIS DAY AT 2:00 P.M. (slm) (Entered: 02/09/2010)

If anyone can do the Novell motions as text, that would be helpful. And here are some more exhibits filed with the motions, but sealed, so all we can do is show you the docket entry:

02/08/2010 - 662 - **SEALED DOCUMENT** Exhibits 19A and 19B re 648 MOTION in Limine No.19 to Exclude Certain Testimony from Edward Chatlos, Burt Levine, and Kim Madsen for Lack of Personal Knowledge filed by Defendant Novell, Inc.. (asp) (Entered: 02/09/2010)

02/08/2010 - 663 - **SEALED DOCUMENT** Exhibit 13A re 638 MOTION in Limine No. 13 to Exclude Certain Testimony From Lawrence Bouffard for Lack of Personal Knowledge and Violation of Parol Evidence Rule filed by Defendant Novell, Inc.. (asp) (Entered: 02/09/2010)

02/08/2010 - 664 - **SEALED DOCUMENT** Exhibits 3F, 3P, 3R and 3S re 630 MOTION in Limine No. 3 to Determine that SCO is a Limited Purpose Public Figure filed by Defendant Novell, Inc.. (asp) (Entered: 02/09/2010)

Update: Wait a second. On the motion about Groklaw et al, the wording says that Novell can't mention commentary sites. But it leaves SCO free to smear away and mention Groklaw or any other commentary site, while Novell must stay silent. Wow. They are the amazings. Incidentally, Novell actually did oppose the earlier motion, only saying that it would agree to a ban on mentioning commentary sites only if it applied to both parties:
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. 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.

That last has to do with the fact that SCO back then was asking that no one be allowed to mention the IBM case or Groklaw. Now, SCO read Novell's words back then. Yet it not only doesn't include itself in the new motion, it tightens the allowance, by leaving out the wording about asking the court's permission, and it again states that it believes Novell will not oppose. But they know Novell did oppose the last time they wrote those identical words about the same issue. See what I mean?

Novell always has to win everything twice, because nothing sticks on the Boies Schiller wall, no matter how hard you throw stuff at it. I think that's one reason this case has dragged on and on for so long.

If you are curious, here's what happened the first time. The SCO motion was mooted by Judge Dale Kimball's ruling that there would be a bench trial, meaning with just a judge, no jury. So the danger of prejudicing the jury was moot:

While a jury may have been prejudiced by certain remarks, the court is not. Given the issues remaining for trial, however, the court would expect such references to be quite limited and only in relation to matters of testimony and exhibits that may overlap.
Novell has filed an errata for Motion in Limine 19's exhibits:

02/11/2010 - 666 - ERRATA to 648 MOTION in Limine No.19 to Exclude Certain Testimony from Edward Chatlos, Burt Levine, and Kim Madsen for Lack of Personal Knowledge filed by Defendant Novell, Inc.. (Attachments: # 1 Exhibit 19C)(Brennan, Sterling) (Entered: 02/11/2010)

Snips:
"Novell, Inc. ('Novell') hereby submits this Notice of Errata to Novell’s Motion in Limine No. 19: To Exclude Certain Testimony from Edward Chatlos, Burt Levine, and Kim Madsen for Lack of Personal Knowledge filed on February 8, 2010.

"This Notice of Errata is to correct Exhibit 19C to the motion. Incorrect deposition excerpts were attached to Exhibit 19C filed on February 8, 2010.

"Novell respectfully requests that the corrected Exhibit 19C attached be accepted as a matter of record in substitution for Exhibit 19C originally filed on February 8, 2010."

Update Here's Dr. Gary Pisano's deposition [PDF] as text:

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

EXHIBIT C

Deposition of GARY PISANO, PhD

Date: July 27, 2007

Case: SCO v. NOVELL

SHARI MOSS & ASSOCIATES
[address,phone,fax]

Q They may have been influenced by SuSE, right, SuSE’s statements that it didn’t infringe?

A Absolutely.

The respondents would – again, that’s the real strength of this methodology, that you have these player – you have these – these respondents expressing an interest in, you know, whether or not they’re going to purchaser indemnification at that time.

So you have a series of – you’ve got – again let’s take the 19 to 45 percent. You’ve got the residual of that, 81 to 55 percent, who have heard statements by SuSE. They’ve thought about issues around, you know, the infringement, et cetera, and they’ve decided that they’re not going to be – they’re not concerned enough with the – any of the issues.

But you have 19 to 45 percent who at that point are expressing concern and intentions to purchase indemnification.

And that’s the proxy. It’s an excellent proxy for those who would purchase a SCO RTU.

Q So what do you mean by the 55 to 81 percent are not concerned enough with any of the issues?

A That’s the – sorry. So they – where that comes from, you have 19 to 45 percent in the surveys are showing this range of – of concern from – very concerned --

Let me just repeat that, because I think I mumbled the words.

What the surveys – the 55 to 81 percent are those who said, you know, these IP issues are not a concern to us and/or we don’t plan to buy indemnification.

Those – they have taken into account all of the information available to them in making that – expressing that opinion.

The 19 to 45 percent have also taken into account all the information concerning lots of factors, and they are expressing high degree – you know, high degrees of concern and/or intentions to purchase indemnification, and they’re a proxy for the

Clients, I think – well, I don’t know if they’re --

They’re certainly giving it some degree of credibility. I don’t think they would put it before their clients if they didn’t think it was credible.

(Pause.)

Q Dr. Pisano, tellme what you know about the methodology for the Yankee Group 2004 survey.

A It was a survey of companies across a size – it’s actually laid out. I believe it’s right in the report itself, a thousand – a thousand customers – sorry, a thousand users were contacted.

They were asked a variety of questions, a thousand organizations that they had – that they had contacted.

I think this was an online survey. The respondents filled it out online, sort of a random sample.

MS. BORUCHOW: You’re questions is about 376, right? Exhibit 376?

MR. PERNICK: Yes.

THE WITNESS: Yes.

BY MR. PERNICK:

Q Is it your understanding looking at page 3 that a thousand organizations were surveyed?

(Witness read document.)

A Yes.

Q And do you see from the question in Exhibit 1, which is the box on page 3, it says that midsize or large organizations with 5,000-plus employees were asked to respond?

A Right, yes.

Q And is that in itself sufficient to convince you that this survey was reliable?

A It appears to be a reliable survey. I have no reason to doubt it.

Q Well, aside from having no reason to doubt it, what do you base your conclusion that it’s a reliable survey on?

A Again, this is an organization, Yankee, that does these kind of surveys routinely.

Companies rely on them for, you know, this kind of market research. That’s what these guys do for – for a living --, and it’s a large sample.

(Pause.)

A It’s reliable.

Q You say it’s a large sample.

Do you know who responded, how many – who at the various companies, anything like that?

A I don’t have the details on – on who responded.

Q I mean, to be clear, we know that a thousand companies were asked, I guess.

A Right.

Q We don’t know anything about who responded, right?

A I’d have to sort of look at that. I don’t recall offhand if I have the numbers on – on that, if that was reported.

(Pause.)

Q Does it matter?

A Response rate? Yes, I mean the specific – which specific players respond doesn’t matter, you know, Company A or Company B.

It doesn’t – the individual companies responding doesn’t matter, but --

Q What do you mean?

A Well, you said does it matter who responded.

So this goes out to a thousand organizations. And think about the companies, you know, 1 through a 1,000, you know, did Company No. 2 on the list respond or Company No. 3 on the list respond?

That doesn’t matter for a survey.

Q What – does it matter. --

I mean, you don’t know how many responded when you’re saying that doesn’t matter?

A No, I didn’t say that.

The overall response rate matters. I have – I can’t recall whether they report the response rate.

My presumption would be in a survey like this, in an organization like this, that they’re getting certain high enough response rates; otherwise they wouldn’t be --

You know, this is a company, again, whose primary – they’re in the primary business of doing these kind of surveys and, you know, and publish this kind – these kind of data.

You can actually – there’s surveys with very low response rates, which, again, as long as the responses are, you know, sort of randomly distributed, not biased on the response, you actually have a very robust study.

Q And how do you know in this case whether you have those conditions?

(Witness read document.)

A I – don’t know 100 percent for sure. Again, I’m relying on the fact that Yankee is a well-respected organization that --

You know, they – they kind of make their – they make their living really and their credibility in the market matters.

And so I’m going to, you know, believe that they are doing a good job on the – on the surveys.

We often are forced to do that in research and in my own academic research where I don’t have all the details of the surveys and response rates, but you look at the credibility of the – of the source.

And, again, this is an organization that makes its living by doing response –

By doing these kind of surveys.

And so, you know, presumably, they – they can’t be out there, you know, publishing flawed studies.

Q Do you know what checks were employed to make sure that this survey was done on a sound basis, what kind of procedural mechanisms?

A I don’t have details on that, no.

Q Do you generally?

A No.

I mean, there’s a standard – I mean, again, doing survey research, there’s a very standard set of approaches that are – that are kind of used in terms of, you know, sending it out, getting response rates, tracking.

It’s – it’s – it’s not, you know – making sure you record the responses correctly.

Again, a company like Yankee that does this kind of stuff would be really, I think – you know, this --

You know, it’s like Toyota making

Cars. They know how to make cars. These guys know how to do surveys.

Q You’re talking about in general, though?

You don’t know anything about what Yankee did to conduct this survey, right?

A I mean, I do.

They conducted a survey of a thousand organizations, you know, and asked them questions.

That’s what they did for this survey. That’s what you do in surveys.

Q Do you know if there was anything done to ensure that the respondents that these unknown, unnumbered entities had the authority and knowledge to answer for the companies?

MS. BORUCHOW: Object to form..

A I’m not sure I follow the question. Can you --

Q Well, do you know if there were any checks employed to make sure that, okay, we’re going to send this to Acme Company and we’re going to make sure we get a response

From the person who’s the one who should be answering?

A Again, in organizations like – they routinely administer surveys. This is not the first survey Yankee’s done. They list a whole bunch of other ones they’ve done.

So they have these things, have already kind of been worked out for who’s getting them and how they’re doing them.

They typically – you know, there’s – you know, those kind of procedures are in place in organizations like this.

This is not an unknown – Yankee Group is an extremely well-regarded, well known, you know, information provider in this space.

Q Do you know anything about what procedures, though, they employed here?

A I don’t know the specific procedures, no.

Q Generally do you know?

A The, you know, standard survey procedures. This was done – I can’t recall – I was looking through this so I could remember the

Specifics of whether it was done online and –

I – I don’t know the specific --

I mean, what kind of procedures are you --

Q I don’t know. I’m asking you.

A Again, it’s very standard – standard kind of survey. Contact these organizations and – and get responses.

Q Assuming there is some kind of standard survey procedure, how do you know it was employed here?

A Again, this – Yankee group is a very well-respected, you know, research organization. They do these kind of things all the time. Their data is used widely by organizations.

It’s a little like census data. I mean, you know, people use census data all the time in their research. Do they ask the questions, the details of the census? No. It’s an understanding it’s done – done well.

Q Did you interview any of the respondents to this survey?


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