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Novell Moves Another Piece Forward: Files Request for Judicial Notice - Updated 2Xs
Thursday, February 25 2010 @ 01:27 PM EST

Novell moves another piece forward in this intricate chess game of preparation for the upcoming trial in SCO v. Novell, filing a Request for Judicial Notice of Prior Factual Findings:
Novell ... respectfully requests that the Court take judicial notice of certain factual findings that were previously made by this Court and affirmed by the Tenth Circuit or not appealed.
My first reaction was that Novell would at least like to make sure that points Novell has already won both at the district court level before Judge Kimball and which were confirmed on appeal or never appealed don't have to be won again before Judge Stewart. We have seen in the past where SCOfolk tend to bring old issues up again and again, after all.

But it's deeper than that. Now that the court here has ruled on most of the motions in limine, Novell is now free to propose a list of items it won before Judge Kimball and that were upheld on appeal (or not appealed at all) and in some cases confirmed by Judge Stewart when he granted a particular Novell motion in limine. So they do that. In other cases, as you'll see when you read the filing, it has to do with issues where the judge granted a Novell motion in limine so that a particular SCO claim was tossed out of the case, but Novell would like the earlier factual findings from that claim mentioned to the jury, because they touch on other claims still in the litigation. And in at least one case, it's a way to make sure the jury knows the full picture, not just the tiny slice SCO would like it to hear about.

Here's the definition of what a request for definition is. If the court agrees to the list, then the facts will be presented to the jury in the jury instruction as uncontroverted facts they have to accept as reality and not something for them to figure out anew.

First, the filing:

02/24/2010 - 729 - REQUEST for Judicial Notice of Prior Factual Findings filed by Defendant Novell, Inc.. (Brennan, Sterling) (Entered: 02/24/2010)

Here's our list, from the filing, of what Novell is asking the Court to take notice of:

Factual Finding 1. "[A]greements that postdate the APA may constitute SVRX Licenses." The SCO Group, Inc. v. Novell, Inc., 578 F.3d 1201, 1227 (10th Cir. 2009).

Factual Finding 2. "Although Novell may have initially intended to sell the complete UNIX business, both parties agree that Santa Cruz was either unwilling or unable to commit sufficient financial resources to purchase the entire UNIX business outright." SCO Group, 578 F.3d at 1205.

Factual Finding 3. "If [one] were to interpret the contract based initially only on the APA itself — without regard to Amendment No. 2 — ... its language unambiguously excludes the transfer of copyrights." SCO Group, 578 F.3d at 1210.

Factual Finding 4. "[T]here is no evidence that Novell's public statements [regarding copyright ownership] were based on anything but its good faith interpretation of the contracts." (Summary Judgment Order at 64, Dkt. No. 377.)

Factual Finding 5. "[T]here is no evidence to demonstrate that Novell's position [regarding copyright ownership] was contrary to its own understanding of the contractual language or objectively unreasonable given the history of the dispute between the parties." (Summary Judgment Order at 65, Dkt. No. 377.)

Factual Finding 6. "SCO breached its fiduciary duties to Novell by failing to account for and remit the appropriate SVRX Royalty payments to Novell for the SVRX portions of the 2003 Sun ... Agreement[]." (Summary Judgment Order at 96, Dkt. No. 377.)

Factual Finding 7. "SCO was not authorized under the APA to amend, in the 2003 Sun Agreement, Sun's 1994 SVRX buyout agreement with Novell, and SCO needed to obtain Novell's approval before entering into the amendment." (Final Judgment at 2, Dkt. 565.)

I don't see how SCO can oppose the one about not having enough money for the full deal originally contemplated, just as one example, as the appeals court already noted that:
Although Novell may have initially intended "to sell the complete UNIX business," both parties agree that Santa Cruz was either unwilling or unable to commit sufficient financial resources to purchase the entire UNIX business outright.
But if anyone can come up with something in opposition, it's surely Boies Schiller, so let's watch and see.

[Update: In fact, one reader compares SCO's arguments to a Mandelbrot set graph, which made me smile. Here's what that is for any who may not know what he means:

The Mandelbrot set, named after Benoit Mandelbrot, is a fractal. Fractals are objects that display self-similarity at various scales. Magnifying a fractal reveals small-scale details similar to the large-scale characteristics. Although the Mandelbrot set is self-similar at magnified scales, the small scale details are not identical to the whole. In fact, the Mandelbrot set is infinitely complex. Yet the process of generating it is based on an extremely simple equation involving complex numbers.
So he was talking about the infinite complexity of the case, and didn't he get it just right? -- but I laughed when I read the comment, because of the detail about small-scale details not being identical to the large-scale characteristics. Ah, SCO! How funny it's been, watching your journey with all its twists and turns, and the closer we look, the funnier it gets, because of the mismatching details. - End Update.]

Meanwhile, no matter what happens with this request, Novell is carefully also setting up its appeal, by ensuring that the judge must deal with each and every item on this list. If nothing else, at least he is having to focus carefully on some of the details of this elaborate case, so that in a perfect world he doesn't rule in a way that compels an appeal. That costs money too, after all.

[ Update 2: More motions in limine decided and we will update our chart: "The Court agrees with Plaintiff that Defendant’s Motions are really requests for jury instructions. Therefore, the Court will deny the Motions and will determine the issues contained therein when addressing the jury instructions."

02/25/2010 - 730 - ORDER denying 629 Motion in Limine; denying 630 Motion in Limine. Signed by Judge Ted Stewart on 02/25/2010. (asp) (Entered: 02/25/2010)

- End Update 2.]

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