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Blake Stowell Email to Maureen O'Gara: "I Need You to Send a Jab PJ's Way"
Friday, March 12 2010 @ 03:01 PM EST

So. Now I know. Now we all know.

Blake Stowell, then the PR guy for SCO, sent an email to Maureen O'Gara, saying "I need you to send a jab PJ's way," and then right afterwards she wrote that invasive so-called expose, in which she revealed, or at least intended to reveal, things like who I called on my phone. A la the HP scandal. She got fired for doing it the way she did, and the then-publisher apologized to me publicly, but she says in the deposition she's not sorry a bit.

We learn this by reading excerpts from her deposition, previously under seal, attached to a letter [PDF] SCO's attorney sent to the court. SCO doesn't want the part of her deposition video played where she talks about me and Groklaw. It's beyond eye-opening, however, despite her pretense, as I see it, that there is no connection between the two events.

They also don't want the part about an email she sent to SCO, subject line, "I want war pay," played. It's allegedly humor. Just chatter. But you know, she is on the list of people SCO owes money to, now that I think of it, filed in connection with the bankruptcy. I wonder for what?

It isn't acceptable, in my eyes, that SCO's attorneys invariably smear Groklaw in every filing that mentions it. They don't just say "Groklaw," they say "the anti-SCO website, Groklaw." One can say quite a lot in legal filings, and get away with it, but there is a line where it becomes libel, when it is gratuitous, and that language is gratuitous. There isn't a media outlet that I can think of, other than Maureen O'Gara's newsletters, that hasn't criticized what SCO did. The Wall Street Journal was the first, actually, to suspect there was something rotten in Lindon, if you recall. Would it be acceptable to call it, in legal papers, the anti-SCO newspaper, the Wall St. Journal? I think not, and I suggest they are crossing a line.

I am an award-winning journalist, specifically for Groklaw. And they need to stop smearing my good name.

Here's the letter:

03/12/2010 - 791 - DOCUMENTS LODGED consisting of Letter from Brent O. Hatch. (asp) (Entered: 03/12/2010)
If anyone would please do the letter and her deposition in text for me, or in a perfect world, in HTML, I'd appreciate it. I want this on Groklaw so everyone can read it. Everyone. For as long as there is a Groklaw. Because it is now further proof, to me, that SCO was behind it, and it was just one more piece of its smear campaign against me, trying to get Groklaw to turn off the flashlight we had turned on SCO's litigation lottery.

As for her aspersions against Groklaw's reliability, I turn you to this article, which may enlighten you as to O'Gara's factual reliability. I believe this is the article that made her mad about Groklaw correcting her. Or maybe it's this one. I'm just guessing, as I can't read her mind. It's my happy lot that I don't understand her way of thinking or acting. But I suspect that is the article, one of them. She had made some factual mistakes, and I corrected them. Here's another factual error she made that I corrected. And another.

That's what the Society of Professional Journalists'Code of Ethics says journalists are supposed to do, correct other journalists' errors. And seek truth and report it. And here's an article I wrote, asking my readers to be polite to and about O'Gara. Why? Because that's who I am. Here is where I repeated my standing offer to let SCO speak on Groklaw, if they wanted to, speaking of fairness and lack of bias. They never accepted the invitation, but they continued to attack and demean and harass me.

Here's what really bothered SCO about Groklaw, in Maureen O'Gara's own words: "SCO Is Chafing Badly Under the Propaganda War It Is Losing to Groklaw". What we do at Groklaw is antiFUD, by the way, not propaganda, but that's how they saw it, because it's who *they* are. As I put it in another article correcting her work:

We are really the pebble in their shoe, I gather. Or a burr in their saddle, as Ms. O'Gara might put it. But all Groklaw does is look for facts and put them where people can easily find them. That leads to great embarrassment in courtrooms, when lawyers read long lists of what SCO has said to the media and then contrast it with what SCO says in courtrooms, but we can't help it. We love truth.
Here's a question for Blake Stowell and Maureen O'Gara: if she is so unbiased and totally independent of SCO as claimed, how did Stowell dare to send her an email asking her to jab me as a favor to him? And on what legal basis would a public company ask a journalist to jab anyone reporting on the company?

Yes. I'm angry. Wouldn't you be?

Update: And Novell responds:

03/12/2010 - 792 - DOCUMENTS LODGED consisting of Letter from Sterling A. Brennan. (asp) (Entered: 03/12/2010)

Novell most particularly would like the part about Groklaw played, because O'Gara's testimony about Chris Stone and what he allegedly told her in a phone call is uncorroborated by anyone else:
Accordingly, evidence of Ms. O'Gara's bias in favor of SCO -- and against Novell -- is critical for the jury to evaluate Ms. O'Gara's credibility compared to Mr. Stone's. The jurors should be allowed to assess all evidence which might bear on the accuracy and truth of Ms. O'Gara's testimony....

The third set of designations at issue show that Ms. O'Gara's contact at SCO, Blake Stowell, sent a message to Ms. O'Gara requesting that she "send a jab" to the purported author of the Groklaw site, which SCO's letter of earlier today states is an "anti-SCO" website. Within just over one month, Ms. O'Gara ran as a lead story an article on the purported author by calling her a "harridan," a word meaning "a woman regarded as scolding and vicious." This section of Ms. O'Gara's testimony is highly relevant to demonstrate the extent of Ms. O'Gara's bias. The speed with which she drafted a lead story on the exact topic of Mr. Stowell's request and the insulting tone of the story suggest a willingness on Ms. O'Gara's part to step beyond her role as a disinterested journalist when it comes to matters involving SCO.

Incidentally, it's not Groklaw.com. It's Groklaw.net.

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

BRENT O. HATCH

March 11, 2010

Hand Delivered

Honorable Ted Stewart
U.S. District Court Judge
350 S. Main St.
Salt Lake City, Utah 84101

Re: Maureen O'Gara deposition designations

Your Honor:

We object to the enumerated designations from Ms. O'Gara's testimony. on the grounds
that they are unnecessarily cumulative, they are significantly more prejudicial than probative, and
they create undue potential for outside sources and commentary to prejudice the jury.

As an initial matter, the designations are cumulative. Novell seeks to undermine the
credibility of Ms. O'Gara, a longstanding reporter in the technology field, by showing that she
communicated with Blake Stowell, who was SCO's director of press relations for a period of
time, The parties have agreed that Novell is permitted to designate testimony that clearly
demonstrates such communications. (See 29:13-19; 33:6-24; 37:8-38:25.) The designations at
issue here serve merely to make the same point, and thus are not necessary.

The designations are also significantly more prejudicial than probative. In the first
designation at issue (39:2-19). Ms. O'Gara is asked about the content of an e-mail that she
forwarded to Mr, Stowell, In the e-mail, one of Ms. O'Gara's readers claims that she "take[s]
SCO's side like Hillary took Bill Clinton's side when he was being accused of fooling around with
Monica." The reader's view is irrelevant and hearsay, and the reference to the Clintons has no
place in this trial. In addition, the testimony that precedes these references is coming in. The
disputed testimony adds nothing.

In the second designation at issue (47:3-48:25), Novell seeks to designate testimony
concerning an e-mail between Mr. Stowell and Ms. O'Gara in which Novell's counsel asks Ms.
O'Gara about the source of humor in e-mails between herself and Mr. Stowell. In seeking to
explain the humor in the exchange, Ms. O'Gara explains that Mr. Stowell is "a Mormon," which
she explains as referring to "those kinds of family values that we're all supposed to admire so
much." This humorous exchange has nothing to do with any substantive issue in this case, and
Ms. O'Gara's use of the word "Mormon" and the associated reference has the potential for
extreme prejudice in this jurisdiction -- one way or the other. The potential for undue prejudice
from this e-mail far outweighs any small, cumulative probative value to the fact of the exchange
between Mr. Stowell and Ms. O'Gara.

1

HATCH, JAMES & DODGE
March 11. 2010
Page 2

In the lengthy. third set of designations at issue (64:10-65:3: 66:9-12, 66:17-67:13; 67:23- 69:24), Novell's counsel points to an e-mail exchange between Mr. Stowell and Ms. O'Gara concerning the anti-SCO website Groklaw.com and the fact that she wrote an article about the website concerning the individual who purportedly started and was maintaining the website. The testimony is cumulative on the issue of the fact of e-mail exchanges between Mr. Stowell and Ms. O'Gara and contains no discussion of any substantive issue in the case. To the contrary, the discussion about Groklaw has the potential for extreme prejudice. At the beginning of the trial,. counsel for SCO argued that "[w]e don't think we need to mention the name of Groklaw or something like that to make any arguments that relevant in this trial," and the Court stated: "I would agree. I do want there to be no temptation for these jurors to be doing research on their own.... I do not want to do anything that would make it any easier for a juror in a three-week trial becoming really interested and trying to find out something on their own." (February 25, 2010. Pretrial Conference Hearing Transcript at 57.) The Court then instructed both sides to tell their witnesses not to refer to such websites by name. (Id, at 58.)

The references in the designations both to Groklaw and to the question of who really operates the website creates undue temptation for jurors to pursue their own research on the issue. That would contaminate the proceedings and would decimate any prospect of impartiality in any such juror's mind.

SCO respectfully submits, for all of these reasons, that the Court should exclude the testimony at issue.

Sincerely yours,
Brent O. Hatch
encl.
c; Michael Jacobs (via email)

2

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

-------------------------------------------

THE SCO GROUP, INC., a Delaware Corporation,

Plaintiff,

vs. 2:O4CVOOl39

NOVELL, INC., a Delaware Corporation.

Defendant.

-------------------------------------------

VIDEOTAPED DEPOSITION OF MAUREEN O'GARA

Friday, March 23, 2007

11:00 a.m.

Reported by;

Joan Urzia, RPR

JOB NO. 192768

Esquire Deposition Services

26

2003, Exhibit 1080.

A Yes.

Q It looks to me that the way you reported it, to use the terminology you and I have started to adopt here--

A Yes.

Q -- you reported one and two, but not causality?

A Right.

Q Do you agree with that?

A Yes.

Q Why is that?

A I didn't know what to do with it, quite frankly, and the story wasn't about -- from my point of view the story wasn't about that.

Q And why is that?

A Because I'm not a lawyer.

Q You saw no news value in a statement to you by a Novell executive that conveyed to you that the reason Novell was releasing its statement on a particular date was because SCO was reporting its quarterly results that same date?

27

A I know that that seems in isolation like that should be really important, okay, but there were so many issues in this very complicated matter that that would make a great sidebar or a follow-up maybe, but we were talking about something else in this story and I thought -- I didn't know where it was all going to go, and I've known Chris a long time. Sometimes I get protective.

Q Did you subsequently convey to someone at SCO that you had heard from Chris Stone that the reason Novell had issued its statement that day was because SCO -- was to time it with the earnings announcement?

A As far as I remember, and according to the evidence in front of me here, we were breaking this news. Okay?

In the normal course of reporting, I went back to the other guy, being SCO, who as far as I know didn't know anything about this, for a statement. During the course of my asking

28

for that statement from its public relations people, as a lever to get that statement I repeated what Stone had said to me.

Q What exactly did you state when you repeated what Stone had said to you?

A Whatever his exact words were at the time. I'm sorry.

Q Were you reading from notes?

A I don't think you had to because it was just a sentence.

Q Your best recollection is you had no notes?

A No, I have notes, but you know, they're not understandable, they're not notes like full sentences, they're not verbatim everything. If I took shorthand, you'd be handy to have around.

Q Do you have those shorthand notes still?

A No, I don't do shorthand.

Q I used the word inadvisably. You're being more precise than I am.

A Yes, yes.

29

Q Do you have the notes of the short phrases still?

A No.

Q What is your practice of the short phrases, if you will, in terms of whether you keep them or not?

A I throw everything out.

Q When do you do that?

A If not when the story is written, then every week, and I've been doing that since 1972.

Q When you conferred with the public relations people at SCO, first of all, were you conferring with Blake Stowell?

A Conferring? I don't confer with the PR people. I called Blake Stowell, yes.

Q What did you mean, why did you object to the word confer?

A I find it difficult to use that verb, when I'm talking about a flak, no. You don't have conferences with PR people.

Q You called him up, you told

30

him --

A From the same phone I talked to Chris on.

Q You told him what Chris had said to you and you asked him whether he had any comment?

A No. I told, I said to them what I knew, which is the substance of this story, that the next day that they were going to issue this cease and desist letter, and in order to get a statement from SCO as a lever, I threw in what Chris had said. It wasn't as scandalous to me as a regular business reporter than it has become under these circumstances. Do you understand what I mean?

Q I'm trying to figure out which of the -- I think setting aside the chortling for a minute, we've talked about three components again, the fact of the date of the planned issuance of the Novell statement, the fact of the date of the SCO earnings release and the causal relationship between one and two.

31

A Uh-huh.

Q And I'm trying to figure out if you told SCO one, one and two, or one two and three.

A If I remember my one, two and three correctly, the answer is one, two and three.

Q So then I'll say that in more colloquial terms, you conveyed to Blake Stowell that Chris Stone had said to you

A Did I do something with your wire? Excuse me. Sorry. I moved.

Q You conveyed to Blake Stowell that Chris Stone had said to you that Novell was issuing its statement in order to time its release with SCO's report of its earnings?

A Among the many things - the substance of the statement seemed to take priority under these, in my world the substance of the statement was the prime fact. I was trying to get a reaction to that.

Then when I noticed hesitancy on

32

the part of Mr. Stowell to give me a reaction to that, I pushed further and used the expressions that Stone had said to me, and the substance of which is that the reason that they were doing it tomorrow was because you're going to have your earnings call.

Q And you're confident as you sit here today, it's 4 years later, that you didn't embellish on what Mr. Stone had said to you?

A No.

Q In order to elicit comment from Mr. Stowell?

A No, absolutely not.

Q You're not confident, or you're confident you did not?

A I am absolutely confident that I did not. That would be a lie.

Q Would you regard that as a breach of your ethics as a journalist?

A Absolutely.

Q It's sort of like cross-examining a witness when you don't

33

have a basis for the cross-examination?

A Yeah, you guys can do it, but I can't.

Q We can't either.

So with that in mind, how would you describe your relationship with Mr. Stowell?

A As normal.

Q What does normal mean to you?

A All press agents are wary of somebody like me. So it's like constantly, it's like cats, you know, or dogs sniffing each other out constantly. You might know that dog, but you know, you're not absolutely, you're never friends with that -- you know, you don't have friends, journalists don't have friends, but you have people that you deal with all the time.

Q Did you have the impression that Mr. Stowell regarded you as an ally in the SCO --

A Never no.

Q Did you convey to Mr. Stowell at

34

any time that you took -- let me start over again.

How did you view the SCO versus IBM SCO versus Novell dispute as it was brewing in the spring and summer of 2003?

A As a good story.

Q Did you believe that you were taking a particular side in that story?

A I have no side.

Q Did you understand that people thought you were taking sides during that period?

A I think that my stories stand for that. I think that -- I would refer you to my stories. I don't see any bias in any of my stories. It's just a completely objective recitation of the facts.

Q So my question, though, is do you think that there were, didn't you in fact -- and I promise you I won't ask you a question unless I have a basis for it-- didn't you, in fact, receive communications from people who thought you were taking SCO's side in the dispute?

35

A If I were to say that most people can't read, would you understand what I was talking about?

Q I'm not asking you to defend yourself at this point.

A I understand that.

Q I'm asking you whether, in fact, you received those communications.

A When? What's the timing?

Q Well, let me -- I was telling Mauricio, again, I have a rule against asking trick questions unless I tell you it's a trick question. So let me show you what I'm referring to.

MR. JACOBS: We have another deposition going on today with Mr. Levine, so what I propose to do is to skip to 90.

MR. GONZALEZ: Okay.

MR. JACOBS: And we'll mark this as 90.

MR. GONZALEZ: You mean 1090.

MR. JACOBS: No, 90. We have a different numbering. Let's mark it

36

190. (Whereupon, Exhibit 190 was marked for Identification.)

MR. JACOBS: 190 is an e-mail string with the date on the top of July 20, 2004. So it's after the period you and I were talking about before. It's produced by SCO at 1648756 to 759.

A Yeah. So?

Q So this is a string of messages that you forwarded to SCO, correct?

A I don't, I don't know.

Q Well, do you see the e-mail at the bottom of 756 from O'Gara to Blake Stowell?

A I see from Frank somebody or another to O'Gara.

Q And look at the bottom of the first page.

A Then I see -- the bottom of the first--

Q The string is in reverse order.

A Yeah, I see. I don't know what

37

the context is.

MS. FOLEY: Just actually listen to the question that he asked.

THE WITNESS: Sorry.

MS. FOLEY: The question again was?

Q You forwarded an e-mail string that you received to Mr. Stowell at SCO, correct?

A No. MS. FOLEY: The question is does the document reflect that.

A I guess so.

Q Well, you don't have a recollection?

A I don't remember it, you know, I get lots of e-mails. So what?

Q Well, I guess my question is so what, why did you forward this string of e-mails from Frank Jalics, J-A-L-I-C-S, in which he accused you of being on, in a nutshell, on SCO's side--

A Yeah.

Q -- why did you forward that to

38

SCO under an e-mail "I want war pay"?

MR. GONZALEZ: Objection.

A I don't remember the context of the thing, but--

MS. FOLEY: Do you remember why you forwarded it?

THE WITNESS: No.

Q Does it strike you as peculiar that a journalist would forward to one of the sides in a dispute a string of e-mails she got from a reader?

A I don't know what the right answer to that question is because I don't know the context.

Q Well, what's the context here?

A I'm probably just complaining about getting this kind of crap all, you know, all the time. People who can't read and don't know what the heck is going on and got it wrong to begin with just, you know, saying that, you know, you think you've got it tough, Blake, you should see it from my side. That's no big deal.

39

Q So Jalics says to you in the July 19th e-mail--

A July 19, is that the beginning?

Q It's towards the beginning, yes. It's on the bottom half of 758.

A July 19th, wait a second. Yeah, About being Hillary to their Bill Clinton?

Q Yes. To be precise, he says, "You take SCO's side like Hillary took Bill Clinton's side when he was being accused of fooling around with Monica." Do you see that?

A Yes.

Q And then he goes on to explain why he thinks you are being taken in by SCO's story. Do you see that?

A Yes.

Q And then you responded to him with a clarification of what you thought SCO was alleging in the dispute. Do you see that?

A I don't think what they're alleging -- all right. I see my reply,

40

yes.

Q And it reads, 'SCO needs AIX and DYNEX because it is charging IBM with copying AIX and DYNEX line for line into Linux. It is not charging IBM with copying UNIX line for line into Linux. It is charging IBM with copying derivative copy line for line into Linux. Do you see that?

A Yes.

Q So you were trying to clarify for him what you understood the dispute was about?

A Isn't that what the dispute was about at that time?

Q I'm not challenging that.

A Okay.

Q I'm just characterizing what you were doing.

A Right, okay.

Q And then he goes on and again sort of disputes your reporting on the case in his July 20th e-mail, do you see that? He says, "What makes you want to

41

believe SCO when every time they show up to a different court or to the same court on a different day their story keeps changing? When they filed the suits in the IBM case, did you know it was primarily a contract dispute and not really about contract copyright infringement? When they filed the suit against Auto Zone, did you realize that it was really about them thinking that Auto Zone might have ported some static libraries to Linux? SCO hired some competent lawyers that they are able to convincingly argue that the moon is made of green cheese, but that doesn't mean that they have the evidence to back it up, Frank."

Do you see that?

A Uh-huh.

MR. GONZALEZ: Objection to the scope.

Q And then you forward that string to Mr. Stowell and with what I took to be kind of a humorous remark, I want war pay.

A Right.

46

part of the deposition. This one I'm going to show you about is back to October 2004. So this will be 192. Do you have it?

A No, I don' t. (Whereupon, Exhibit 192 was marked for Identification.)

MR. JACOBS: Why don't you hold 192 and we'll mark another one as 193, (whereupon, Exhibit 193 was marked for identification,)

Q So 193 is an e-mail string that ends on August l1, 2003 produced by SCO under 143593 to 595.

A Yeah.

Q And 192 is an e-mail string ending October 22, 2004 ending under SCO 1648173 to 176. Let me ask you about 193 first.

MS. FOLEY: Have you had a chance to look at it, 193?

A I'm sorry, I'm looking here-- oh, I'm sorry, I' ll looking at 192.

Q That's all right. Take a look at 193 now.

47

A Yes.

Q So 193 is an e-mail string between you and Stowell about a couple of issues, but what I want to focus attention on is the most recent two e-mails in the string. It seems to me you're joking with him about the subscription costs to Linux Graham and you say I'll make you a special price.

Do you see that?

A Uh-huh.

Q And that's on August 11, 2003, do you see that?

A Uh-huh.

Q And then you again, I think in humor -- I'll accept it as in humor-- you say "you're so cute" and then you say "and your politics are sensible and should be rewarded." I didn't see the humor in that. I was wondering what you meant by it.

A He's a mormon.

Q And therefore?

A It has a tendency to have like, you know, those kindS of family values that

48

we're all supposed to admire so much.

Q And that's what you meant by politics?

A Isn't that what that is?

Q I don't know, I'm asking you. What did you mean by politics?

A That's what I would say.

Q Family values? Yeah.

Q And what do you mean by it should be rewarded?

A A lot of people are -- oh, come; on, you know, It's meaningless. There's nothing there. It's just chatter.

Q And then he reports back, "Ah, shucks, I'm blushing now." Do you see that?

A I guess that's because I said he was cute, I call most people lamb chop. Most guys think they're the only ones I say it to. I've got 2000 senior executives in the computer industry who think they' re the only ones I call lamb chop. Come on, honey.

49

Q I'm feeling left out.

A Let's deal with this. You know, I mean, it's a dog eat dog world out there.

Q Yeah, and I think I saw all of that except the focus on politics. That seemed like an odd word in this context.

A I don't know. We were talking about other kinds of things. You know, you have to talk about other subjects with people and he was probably telling me about his kids and, you know, local school election or whatever. It's--

Q So this was just chatter?

A This is just chatter. This is southern bell kind of chit chat, you know, just keep talking and maybe you'll get what you want, whatever it is.

Q So then on 192, Dean Zimmerman at SCO writes to Blake Stowell and writes, "Am I impressed you actually got Maureen O'Gara to say something that was, well, nice about SCO." Do you see that?

A Yes, I do.

62

Ms. O'Gara that Sun Micro Systems had purchased a different type of license that IBM had and that SCO had concluded that Sun Micro Systems was not in breach of that license. I did not say that SCO was giving Sun Microsystems a hall pass on IP tampering. I never stated, I never said that I had not read the other licensing UNIX agreements." Do you see that in this declaration?

A I saw it.

Q And then in your article you went on to write, "At the time, and this was a week ago, he had spent more time talking to us than to IBM that there had been no contact. He figures IBM's strategy will be to go for a dismissal on the grounds that what he's charged IBM with so far are, is not a cause of action and are conclusions, not facts. He seems relatively unperturbed at the prospect. He also gave Sun a hall pass on IP tampering calling it's 'clean as a whistle' because it

63

paid all that money once upon a time for UNIX. As for everybody else, well he hadn't gotten around to reading their agreements yet." Do you see that?

A Yes.

Q And do you stand by your story?

A I stand by my story.

Q You were accurately reporting in your story what Mr. Heise said to you?

A Yes.

Q And to the extent that his declaration disclaims what you reported in your story, his declaration is incorrect?

MS. FOLEY: Object to the form of the question. I'm going to direct the witness not to answer that question.

Q Are you going to follow your counsel's instruction?

A That's why she's here.

Q Now let's look at what we'll mark as 196. (Whereupon, Exhibit 196 was

64

marked for identification.)

A Why does the print keep getting littler and littler?

MR. JACOBS: I seem to be shy a copy of this one.

MR. GONZALEZ: Maybe I can just look at it and give it back to you.

MR. JACOBS: Yes.

Q So this is an e-mail to you dated May 30, 2005, Exhibit 196; produced under SCO 1647696 to 697. Do you see that?

A I don't see a date on it,

Q Right at the top.

A Oh, there it is, okay.

Q And the subject is, "I need you to send a jab PJ's way."

A Okay.

Q Do you see that?

A Uh-huh.

Q Who is PJ?

A PJ is the purported author of the Groklaw site.

Q What is the Groklaw site'?

65

A It is a website that follows the SCO case -- I should say cases maybe but,

Q Did you have a view in March of 2005 about whether PJ or the Groklaw site was a reliable source of information on the SCO litigation?

A Yes.

Q What was your view?

A It was not reliable.

Q And what was the basis for that?

A It is a propaganda site.

Q Propaganda in what sense?

A It's unbalanced.

Q In contrast to what you believe you were doing?

A In contrast to what anybody is doing.

Q But more particularly your reporting?

A I suppose you could compare it to my reporting.

Q And in comparison you felt you were balanced or more balanced compared to her reporting?

66

A She's not reporting. That's not reporting. Reporting has to do with facts She is writing a piece. It's an editorial or editorializing.

Q And that was the view you held in March 2005?

A Yes,

Q And then you did, in fact, write a story about PJ or Pamela Jones, didn't you?

A Yes.

MR JACOBS: Let's take a look at that. We'll mark this as 197. (Whereupon, Exhibit 197 was marked for identification.)

Q So in 196, Stowell says in the subject line, "I need you to send a jab PJ's way," and that's March 30, 2005?

A Yes.

Q And 197 is your May 9 to 13, 2005 issue of Client Server News 2000 correct?

A Yeah.

Q And the lead story is "Who is

67

Pamela Jones," correct?

A Yeah.

Q Is there a causal relationship - between Blake Stowetl's e-mail to you and the appearance of the story in Client Server News 2000, May 9 to 13, 2005?

A No.

Q You did it independently, you did the story on PJ--

A I have reason to do a story on Pamela Jones that has nothing to do with SCO.

Q Nothing to do with SCO asking you to?

A It has nothing to do with SCO. It's a matter of my own personal integrity. She called it into question.

Q That's what prompted this article?

A That's what prompted my interest in finding out who she was, yes.

Q And in that article you said, "A few weeks ago, I went looking for the elusive herodin who supposedly writes the

68

Groklaw about the SCO v. IBM suit." Do you see that?

A Uh-huh.

Q What is a herodin?

A I suppose we could look it up in the dictionary.

Q Why did you use the word?

A Because it's accurate.

Q And in what way is it accurate?

A Have you read Groklaw?

Q I'm sorry, I get to ask the questions.

A If you read Groklaw, you would know that herodin is the right word. There is a difference between a good word and a right word.

Q See if you agree with this definition--

MR. GONZALEZ: Again, Objection to scope.

Q Herodin, noun, a woman regarded as scolding and vicious.

A Uh-huh.

Q Is that a definition that

69

applies to your use of the word herodin?

A I think it's accurate.

Q Scolding and vicious?

A Uh-huh.

Q As you sit here today, do you have any regrets over printing 197?

A No.

MR. GONZALEZ: Objection -

Q Do you have any regrets about finding the identity, reporting information, personal information about Pamela Jones?

A No.

Q And again, "Who is Pamela Jones" had nothing to do, the story on 197, your testimony is that it had to do with Blake Stowell's March 30, 2005 e-mail with the subject "I need you to send a jab PJ's way?

A I think he defines what the jab would be, which is something that we ignored, you know.

Q The answer is?

A No.

Q Now let me show you a document.

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

March 11, 2010

Hon. Ted Stewart
United States District Judge
United States District Court, District of Utah
[address]


Re: The SCO Group v.Novell, Inc.
Case No. 2:04CV00139


Dear Judge Stewart:


We are responding on Novell's behalf to the letter to the Court from SCO's counsel earlier today regarding Novell's counter-designations of the videotaped deposition of Maureen O'Gara, taken on March 23, 2007. SCO reports that it intends to present Ms. O'Gara's videotaped deposition testimony during trial tomorrow. SCO requests that the Court exclude the counter-designated testimony at 39:2-19 (first designation at issue, referencing the Clintons); 47:3-48:25 (second designation at issue, referencing Ms. O'Gara's us of the word “Mormon”); and 64:10-65:3, 66:9-12, 66:17-67:13, and 67:23-69:24 (third designation at issue, referencing actions taken by Ms. O'Gara against an allegedly anti-SCO website after a request from her contact at SCO).

In deposition testimony not at issue here and not objected to by either side, Ms. O'Gara will testify to the jury regarding Ms. O'Gara testified to statements that she alleges Novell's former vice chairman, Christopher Stone, made to her during a telephone call, which Mr. Stone denies having made. These alleged statements by Mr. Stone are the centerpiece of SCO's argument as to malice. There are no witnesses to corroborate Ms. O'Gara's version of her telephone conversation with Mr. Stone. Accordingly, evidence of Ms. O'Gara's bias in favor of SCO — and against Novell – is critical for the jury to evaluate Ms. O'Gara's credibility compared to Mr. Stone's. The jurors should be allowed to assess all evidence which might bear on the accuracy and truth of Ms. O'Gara's testimony.

Novell will agree to excise the testimony in both the first and second designations at issue in the above-referenced letter. However, the third set of designations at issue (64:10-65:3, 66:9-12, 66:17-67:13, and 67:23-69:24) are highly probative, more probative than prejudicial, and should not be excluded from the jury.

The third set of designations at issue show that Ms. O'Gara's contact at SCO, Blake Stowell, sent a message to Ms. O'Gara requesting that she “send a jab” to the purported author of the Groklaw site, which SCO's letter of earlier today states is an "änti-SCO” website. Within just over one month, Ms. O'Gara ran as a lead story an article on the purported author of the Groklaw site. In this article, Ms. O'Gara insulted the purported author by calling her a “harridan”, a word meaning “a woman regarded as scolding and vicious.” This section of Ms. O'Gara's testimony is highly relevant to demonstrate the extent of Ms. O'Gara's bias. The speed with which she drafted a lead story on the exact topic of Mr. Stowell's request and the insulting tone of the story suggests a willingness on Ms. O'Gara's part to step beyond her role as a disinterested journalist when it comes to matters involving SCO.

The Court has held that it was unable to grant SCO's broad request for exclusion of litigation commentary and would rule on SCO's objections as they arose during trial. (“Memorandum Decision and Order Taking Under Advisement Plaintiff's Motion in Limine No. 4 to Exclude References to Litigation Commentary” [Docket, 713] at 2.) The designations at issue here do not refer to “Groklaw.com”; instead, they refer simply to “Groklaw.” Jurors would have to actively search to confirm the address of the website at issue, much as they would and could to find articles that SCO itself has introduced into evidence, such as the Wall Street Journal, or any other topics that have been and will be discussed in the case. The Court has regularly instructed the jury not to do any investigation on anything that could relate to this trial, and could do so again here.

Novell respectfully submits that, while it agrees to excise the first and second designations at issue, the third designation at issue should be viewed by the jury.

Sincerely,

(Sterling A. Brennan)


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