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Stewart Rules on Daubert Motions: SCO's Experts Can Testify
Tuesday, March 02 2010 @ 04:58 PM EST

Judge Ted Stewart has denied all three Novell motions for Daubert hearings. In essence, he says, let the jury decide. Novell can cross-examine them to highlight any flaws.

Here they are:

03/02/2010 - 745 - MEMORANDUM DECISION denying 659 Motion for Daubert Hearing. Signed by Judge Ted Stewart on 03/02/2010. (asp) (Entered: 03/02/2010)

03/02/2010 - 746 - MEMORANDUM DECISION denying 655 Motion for Daubert Hearing. Signed by Judge Ted Stewart on 03/02/2010. (asp) (Entered: 03/02/2010)

03/02/2010 - 747 - MEMORANDUM DECISION denying 657 Motion for Daubert Hearing. Signed by Judge Ted Stewart on 03/02/2010. (asp) (Entered: 03/02/2010)

On G. Gervaise Davis, the first SCO expert, Stewart carefully outlines what Davis will be allowed to say and what he will not, also relying on SCO representations as to what they will and won't ask him. (You know SCOfolk always keep their word, don't you?) For example, he won't be allowed to tell the jury who he thinks owns the copyrights. He can testify as to his experience over his working life as an attorney as to whether ownership of the copyrights was necessary for SCO to operate its business, but he "will not be telling the jury that the law does require ownership".

With regard to Christine Botosan, he decided that the perceived weaknesses in her method and conclusions go to their weight, not their admissibility, "and are proper fodder for cross-examination". That was SCO's argument, if you recall. As to Novell's claim that she was a conduit for hearsay, Judge Stewart says experts can base their opinions on "evidence not otherwise admissible" if it's the type "reasonably relied upon by experts in the particular field." Novell can highlight weaknesses in cross-examination.

As for Gary Pisano, Stewart claims Novell didn't challenge the Yankee Group study methodology, just Pisano's ability to recall what it was. Novell did argue that Pisano's reliance on the study was flawed because it was insensitive to price, but Stewart rejects that argument saying that SCO says Pisano did consider price. Again, he tells Novell to use cross examination or call its own expert to refute Pisano, which we know Novell plans to do.

And the judge says he'll include in the jury instructions "how to evaluate the credibility of expert witnesses." If he tells them to evaluate it as he does here, however, I doubt that will be the least bit helpful to anyone but SCO, frankly.

Speaking of analysts, I recalled today another reason SCOsource wasn't popular. According to Dion Cornett, then an analyst covering SCO, here's what he said, in June of 2004, was damaging SCO business across the board:

"Some of their core customers are being scared off by the lawsuits," said Dion Cornett, an analyst at Decatur Jones Equity Partners. "SCO has sued some of its customers, and that is what's scaring people off."
So, according to this analyst, SCOsource was connected with lawsuits in the market's mind, and they ran from SCO. I just mention it in case anyone is looking for an analyst. In fact, for quite a long stretch, IIRC, he was the only analyst covering SCO. Last I heard, he was at Red Hat.

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