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Day 5 of the SCO v. Novell Trial & Some Help for Journalists - Mattingly & Broderick - Updated
Friday, March 12 2010 @ 08:32 PM EST

One of our reporters in the courtroom today, bprice, has sent his first dispatch. More to come. He had a pleasant chat with Tom Harvey of the Salt Lake Tribune. And in the trial itself, there was testimony from Bill Broderick again, then Ty Mattingly.

Here's Ty Mattingly's deposition [PDF], Exhibit 9 in the collection. And here's William Broderick's declaration [PDF], Exhibit 15 in that collection of exhibits.

Here's what he says happened before the session got going:

pj--

I was there with my red dress on, carrying two pads and five (not just two) pens. Nobody seemed to notice the red dress lapel pen from the American Heart Association, though.

Before I do my full report, a couple of highlights:

Groklaw was discussed (with jury out of the room) twice, with respect to the Maureen O'Gara deposition. The first was to strike a mention of Groklaw; the second, a mention of pj. In the end, Judge Ted Stewart observed that if we can't trust the jury to follow his admonitions, we'd just as well quit. It's not clear just how much will be allowed in the end. I see you have an article up that may be about this, but I won't get to read it until I finish reporting.

Our friendly neighborhood Salt Lake Tribune reporter was there for the whole thing. He seemed friendly with the SCOGlings, but didn't seem to talk to Novell's side. I went up to him and mentioned that 'it must be nice to cover a story in person, rather than sitting around doing telephone work'. Then we got serious. I mentioned that Groklaw had been following his stories, and was dissatisfied with the one-sidedness. He said he had gotten some emails about it. He complained of having trouble finding things on Groklaw, agreeing that there's a lot there. He couldn't find the search function; I couldn't help, because I use the red-dress essayage style, rather than the default that he would use. His bottom line was that it's still SCOG's turn, so that's all he has to report on.

All right. Let's lend a friendly hand. It's certainly true that there is a lot of information on Groklaw. Since he's reporting on the SCO v. Novell case, here are some resources that will help him:
But, Tom, you can email me anytime. I'll be glad to help you find anything you need to find. It's a free service Groklaw has always provided, and it's available to you also, so you can file accurate reports. That is our goal as journalists, after all, to get the facts and get them right. Why include the rulings by Judge Kimball? Because only part of his ruling was overturned, not all of it, so a great deal of it is still relevant.

And the appeals court did not send the case back so SCO could finally have a day in court. It's had two bench trials already, just in this one litigation. It sent the copyright ownership back for a jury decision and related issues to that question, but it stated that Novell has strong arguments as to copyright ownership. You can read that for yourself in the appeals court order. And as for Amendment 2's supposed significance, here's what the appeals court wrote about it in footnote 2:

2We think the parties' dispute over whether Amendment No. 2 retroactively changed the APA or affected a clarification as of October 16, 1996 is ultimately much ado about nothing. None of the claims in this litigation depend on the meaning of the APA during the time period prior to Amendment No. 2. Moreover, while both parties attribute different meanings to the APA and Amendment No. 2, neither party argues that Amendment No. 2 was meant to substantively change the intent of the APA; both SCO and Novell agree that it merely clarified or affirmed the original intent of the transaction.
I thought you'd want to know that.

In short, the issue with the appeals court was that summary judgment is only appropriate when there are no facts in dispute, and when no rational trier of fact could accept a party's side. They said Novell had strong arguments, but it was up to the jury, not a judge, to actually make the determination. It is never the case that only one side gets to speak in litigation, in any case. This isn't SCO's day in court. It's every bit as much Novell's. Remember, Novell has counterclaims that are being tried simultaneously. So covering only one side would be only half the assignment.

We've been covering this case every day since it began, so it's likely we can find whatever you need in a lot less time than you can, so ask away. We won't bite.

And with that, our reporter fills us in on the first part of the day:

I apologize for not being able to note all the exhibit numbers flying by. Since much of the time was spent establishing foundation, I've concentrated on summarizing substance.

All other courtrooms I've seen, either photographically or in person, have had a bench in front bar, behind the counsel tables. This bench is usually the place for counsel 'accessories', like investigators, boxes of files, excess lawyers, and (most important) paralegals. This courtroom doesn't have such a bench, so all the accessories go behind the bar, intermixed with us mere mortals.

8:20 Arrived. 11 other spectators milling around; most were SCO lawyers, judging by their note-passing routes and who they spoke to. Hatch's bowtie was muted, brown, maroon, or such: I've only seen (reference to) louder ones.

8:28 Judge Stewart arrives; discussed designations with regard to the Maureen O'Gara deposition. Hatch doesn't want to allow mention of Groklaw. Judge Stewart allows about 5 pages of the deposition *[but see below]*.

He asks counsel whether the trial should continue, in light of the letter he just saw announcing the cert petition. Singer says, don't worry. Novell says nothing will happen until April, anyway. Judge Stewart: "Neither of you is saying, 'quit and go home, then'." Counsel agreed with this.

8:35 Jury enters. Broderick direct by Normand continues from yesterday.

Discussing SOFT0015, IBM source license (SLA): source code is the "family jewels". Licenses demand confidentiality. SLA is common provisions for sublicensing and supplements (license for a product on a CPU).

The Judge asks about "flavor" creations with regard to licenses; he got it right. The creator of a flavor works from a source license and a sublicensing license for the binaries.

Discusses Exhibit 592, a letter from Novell notifying licensees of transition to Santa Cruz. Most licensees got a standard form letter, but some had to approve the transfer and got special letters. There were about 3000 letters in all; none of them mentioned copyright.

Discusses 1/22/96 letter, Novell to Microsoft--why is it different? Microsoft is a third-party (code) supplier, and must approve the transfer.

After clearing an objection on lack of foundation, discusses APA 4.16a, schedule 1.1a item 6--source-code licensing: why does 4.16 give Novell waiver power on changes to licenses, etc.? A: to protect Novell's royalty stream.

Discusses letter from Novell to Cray. What was this about? Cray license had included source sublicensing, unlike most source licenses. When SGI bought Cray, they wanted to include the Cray provision under the existing SGI license.

Discusses Novell slide from their opening: "Copyright not required for flavor." Q: when entering into a license, were employees transferred to licensee? A: No.

Discusses Exhibits 487 and 488. These are copyright registration certificates TXU 516 702 and TXU 516 706 *[numbers approximate--I think I got them right, but I won't bet on it]*. Also discusses the whole story of the certificates. During the Novell-Santa Cruz transition, Broderick and an assistant set up a table in the file room and made two piles. One pile was stuff that he decided should go to Novell; the other was stuff to keep for Santa Cruz. He recalls deciding that the certificates should be put into binders and kept for Santa Cruz. This decision was based on general instructions for the transition, not on anything specific with respect to copyrights, registrations, or certificates. Upon review of Schedule E (list of registered copyrights from APA), none of the listed registrations were for code. Specifically, the exhibits under discussion were manuals, although one of the certificates mentioned 'software program'.

9:37 Broderick - cross by Acker

Q: Do you have any equity interest in SCO Group?

A: Over 6000 shares plus options on about 30000 shares.

Broderick admits: he wasn't involved in the APA negotiations; wasn't at the BoD meeting; and wasn't involved in the amendments.

Comparing Sun and Microsoft 2003 licenses: Microsoft license included release from some claims by Caldera against Microsoft. *[No discussion of the nature of these claims.]* The releases were not itemized separately in the deal, so the license paperwork doesn't show their value.

*[Throughout direct and cross examination, Broderick has seemed apologetic.]*

9:58 Recess.

[MORE TO COME]

Update: cpeterson ran to the courthouse today for us too:
On the O'Gara deposition - Hatch wanted to exclude from page 64, line 22 to p.65, line 3, saying that all the information there was available elsewhere, and we needed to not tempt the jury by showing them the Groklaw website address.

Brennan objected that in order to make that request, you'd have to assume that the jury will disobey the instructions they are given every day.

Singer maintained the claim that the risk was not worthwhile and the material not necessary.

Judge Stewart started to sustain Brennan's objection to that, then realized he had to wait until Brennan voiced the objection. ("I'm going to sustain... er, you want to object to that, Mr. Brennan?" "Yes, your Honor..." "Ok, I'm going to sustain the objection." He went on to say that if we can't trust the jury, we're in deep effluvia anyway (not his words, mind) and that the probative value is such that the jury needs to see it.

Hatch then requested that "scrolling be turned off" for that part. (I'm assuming that it's something like closed captioning - I've not seen a deposition run yet.) Novell consented & Judge Stewart agreed to that.

One highlight of today: when Ty Mattingly referred to Ed Chatlos' testimony. (Cue sound of jaws dropping.) "How did you know what Mr. Chatlos said? How did you know that Mr. Chatlos had testified?" asked Brennan. After some stammering, and hunting for an answer, Mattingly said, "Lee Johnson told me." Bad case of footgun, I think.

Or maybe he read it on Groklaw. Maybe SCO imagines no one follows the judge's directions for a reason? Kidding around. But how did Lee Johnson know what Ed Chatlos testified about? SCOfolk aren't cheating or anything, are they?

By the way, I wrote to a journalism society guru on ethics on covering trials. His advice matched Judge Stewart's, that you have to at some point trust the court to set the rules that the participants follow, but I have no responsibility other than to tell the truth.

Which I do.

Here's the PACER minutes for the day:

03/12/2010 - 797 - Minute Entry for proceedings held before Judge Ted Stewart: Jury Trial held on 3/12/2010. Trial continues. Testimony heard, exhibits admitted. The Court reminds jurors that only a portion of the evidence is in and they are not to be making up their minds, nor discussing the case with anyone. Jurors released until Monday morning at 8:30 a.m. Attorney for Plaintiff: Stuart Singer, Edward Normand, Brent Hatch, Attorney for Defendant Sterling Brennan, Eric Acker, Michael Jacobs. Court Reporter: Patti Walker, Ray Fenlon, Laura Robinson. (slm) (Entered: 03/12/2010)

That's good advice for us watching too, to wait until all the evidence is in before drawing final conclusions on the trial.

Update: And now part 2 of bprice's notes:

Picking up after 10:00 AM break.

10:16 Judge Stewart enters; Broderick to witness chair; jury returns; continue cross-examination by Acker.

Discusses APA Sch 1.1b, Exclusions. Broderick doesn't want to discuss this, because it has been changed by Amendment 2.

APA Attachment E, Copyrights acknowledged by Seller. On this 7-page list, only the last 4 items are code, and they date from 1978.

Q: Is it true that flavor creators didn't have or need copyrights?

A: That's true.

Discusses SCO 641 (exhibit?): shows Novell copyright notices through 1995.

SCO L6 and L7 show new Software License Agreements by Santa Cruz in May, 1996. **[Thus, Santa Cruz, without copyrights, could and did enter new SLAs. At least, I think that's the point here]**

Broderick says that APA 4.16a only covers binary licenses.

10:48 Broderick redirect by Normand.

Q: Can a literal contract interpretation be absurd?

A: Yes.

Q: If a contract is ambiguous, do you look at performance?

A: Absolutely.MO Ambiguity means two interpretations of wording.

11:08 Ty Mattingly, Direct by Singer

Close friends with Ryan Tibbits since BYU days. *[I watched Mattingly and Tibbits leave the courthouse together at the end of the day's festivities.]* Still friends with Bradford at Novell, too. Owned about 9000 shares of Vultus.

Mattingly identified himself as the 'high-level business negotiator' for Novell, in the Santa Cruz deal. Chatlos was the detail business negotiator, and Tor Braham was the lawyer. He was fairly dismissive of Braham's role in the transaction, as a lawyer who just wordsmithed the meeting of the minds that he and Chatlos had hammered out. He testified that he and Chatlos had drafted the Memorandum of Understanding (MOU) on a six-to-eight week trip to California **[check my number recall, here.]**, then they left town since their part was all done. It was Braham's job to write up the MOU in legalese.

Questioning turned to 9/18/1995 Board of Directors meeting. But first, Normand had Mattingly establish that Bradford produced the exhibits for most BoD meetings, and then presented them.

Bradford circulated a letter dated 9/15 (Friday) for the 9/18 (Monday) meeting. It had an attachment, being the term sheet for the Santa Cruz deal. The term sheet didn't cover the copyrights, says Mattingly, so the minutes of the BoD meeting must mean that Novell retained copyrights only for retained products.

11:40 20 minute recess **[which I was well ready for]**.

12:05 Judge Stewart returns. Discusses jury instructions with counsel. He seemed a little peeved about the subject (but maybe not), and called for them to be submitted Monday.

Jury returns. Mattingly cross-examination by Brennan. They had a little byplay about whether Mattingly knows Brennan from a deposition or whatever. Brennan had been at BYU when Mattingly was, but not studying engineering.

The Santa Cruz deal was codenamed "sleighride" at Novell; "Rhine River" was codename for HP deal to expand Unix availability on Intel processors **[Was this the 64-bit stuff? Mattingly called it x86, though.]* *

Mattingly found a bunch of Novell documents in his garage during the last quarter of 2009, and turned them over to Ryan Tibbits. It appears that Tibbits finally gave some of them to Novell's counsel today. This included NOV045, an undated draft of the APA, with a notation, not in Mattingly's hand, of the date 9/16/1995. This draft had an exclusion in 1.1(b) that did not appear in the final, excluding patent licenses. This was on the line above the copyright exclusion.

**[The inference seems to be that deleting the patent-license exclusion would call attention to the copyright exclusion: if the copyright exclusion were a scrivener's error, it really should have been caught when that line got renumbered.]**

Mattingly has had disputes with both sides. He maintained that Vultus was undervalued (or Caldera overvalued) in the sale. Since he held about 9000 shares of Vultus, he took a hit, he says. He also claims a hit over Novonix, a joint venture between Novell and Netscape, due to valuation issues.

*[His description of Novell retaining the royalty stream indicates that the royalties were not to be consideration in the Santa Cruz deal.]*

He will make the garage documents available to Novell's counsel; therefor, he's still an active witness so that he can authenticate them for the record.

13:16 Mattingly redirect by Singer.

Mattingly says that business folks are better than legals as information sources. Someone said "Legal work on both sides was sloppy.": my notes seem to indicate that it was Singer or Hatch, not Mattingly, that said this, but they're not clear.

Jury excused for weekend.

More discussion of the MoG deposition, and whether to strike what about Groklaw and PJ. This is where Judge Stewart made his remark about trusting the jury to follow the admonitions.

How precious. SCO finds some surprise contracts in a garage. Then fails to turn them over to Novell until during the trial, live. I'm sure you have no doubt at all about their authenticity, so no need to check that. Wouldn't Mattingly's word be enough for you? Heh heh. What a bunch of cynics. I know. You will tell me SCO made us this way, and you'd be right.

[ Update: I remembered later that Burt Levine spoke about a later draft in his 2007 Deposition [PDF]. It will show you how that line about patent licenses ended up being taken out on Levine's instructions. He did not take out the exclusion of the copyrights from the same section. So that deposition will give you context, and of course a later draft means more than an earlier one, in terms of intent. It also might be of interest to compare the two, to see if the Mattingly version is legit, I'm thinking.]

And we have another reporter's notes now, beginning with Broderick:

Day 5

Judge Stewart spoke of O'Gara at first regarding pages 64-69 of a document, discussing something like probative value outweighs the prejudicial value.

Judge Stewart asks if Brennan has anything to add.

Brennan replies: "Depends on your ruling." This results in smiles and a couple chuckles.

Hatch refers to the 3rd set of designations. I could not hear Hatch properly (very soft tone at times) but I think he is referring to the O'Gara / Groklaw document that will be discussed later at the end of the day.

Hatch mentions if one was to search the internet with names from this case it is the first website that comes up..... says something like an obscure website.

Judge Stewart responds: I understand that there are other more readily available places for information.

Singer speaks of the very low chance of the SCOTUS petition and makes some statements. Brennan responds that he agrees with the chances but has an opposite position with the rest of the things Singer said.

Singer seeks an extension of time, two were given to Novell.

Begin Continuation of Broderick:

Reviews comments about "umbrella software".

Software agreement between AT&T and IBM.

Normand: what does the document do?

Broderick: grants rights to source code

IBM Product license is shown, UNIX System 5 ver. 3.0

Exhibit SCO 167

They mention the number in the top right of the documents.

SCO exhibit 3 AT&T Sublicensing Agreement

1.04 -> Broderick says it grants rights to distribute a sublicensed binary (unmodified code) - he used the Windows example again.

Broderick has been addressing the jury in most of his longer answers, ones he is comfortable in answering, others are short and directed to Normand.

At this point, I believe the jury is less interested than the day before; they are not taking as much notes during Broderick's second part of testimony.

Judge Stewart raises a question about "flavors" of UNIX and what is needed. Broderick: software licenses to create a "flavor".

Broderick hesitates for a moment and says to the jury "makes my job sound boring" and smiles. Jury reacts and smiles/chuckles, and so do some at the SCO table.

SCO 592 letter to licensees and partners -> Novell transfers products to SCO (the amount of 3000 letters is established) signed by Levine.

SCO 22 Novell letter to Microsoft.

Broderick: SCO bought the business and got the contracts.

Question asked: Who is Michael De____ 1.1a sec 6 referenced SVRX listed. When asked about it, Broderick: source code products that we had licenses to.

Asked what SVRX is? Broderick: all software except UnixWare. They had rights to change product schedules because of royalty streams.

He goes on to explain that the royalty stream is Novell's only interest and that if Novell had the ability to change any of the software it would in Broderick's terms "destroy our business."

SCO 213

Talking about Cray super computers (binary and source) SGI acquired Cray and tried to include their licenses in their existing binary-only buyout. It was disputed and Broderick went to Novell about the binary royalties.

Consultant Price Index I believe was the term used for a document to set pricing on licensing.

Signed by Steve Sabbath and explains royalties and to give notice to licensees of increase.

Broderick again pauses and says “god, my job sounds boring” less of a response from the jury this time.

When asked about Novell's stance on copyrights: Broderick: “They are nuts; they only had rights to royalties."

Questioned, what would he say to someone saying SCO bought a license? Broderick: “They are nuts.”

Explains license versus APA.

SCO 706 Objection - Predates SCO, he cannot remember where or when he saw it.

Normand then moves to third page and Broderick then recognized that page as the SCO agreement.

No objection.

A slide is shown at this point, I created a rough copy of it.

The slide shows the transfer of UNIX from AT&T to Novell and that HP, Sun, and IBM were licensing the code.

487, 488 copyright registration certificates in 2 blue binders. I think they had an AT&T logo on them but not sure.

Broderick states these are SCO's and were located in Lindon, Utah. They are brought to Broderick on the stand and are referenced later.

2.10 Seller disclosure schedule of APA.

Copyright registrations.

Attachment E page 8 selling copyrights at the bottom go the list, 3 are pointed out, pertaining to UNIX OS Edition 6.

SCO 486 not admitted yet, copyright registrations.

The documents on the computer are then compared to the binders in Broderick’s hands - asked if it corresponds? Broderick: it corresponds.”

SCO 487 moved into evidence.

Asked about the nature of authorship (computer program).

Is UNIX a computer program? Broderick: “Oh, yes.”

End of Normand Questions for Broderick

And here's his Part 2:
Part 2 of 2: Stuart Acker cross of Broderick.

Where do you work? A: SCO Group

Equity Interest? A: Stocks (76k) and options (30k)

Was not involved in negotiating APA.

Not at board meeting during APA approval.

SCO 04 Software Licensing Agreement.

Broderick is answering very short and not addressing the jury. Acker is much louder than Normand and the jury was paying more attention to Broderick when he spoke directly to them during SCO's questioning, but now the jury focus is on Acker.

Admitted. N13 “newSCO” and Sun agreement.

T13 SCO and Microsoft Agreement

In 2003, licensing of UnixWare most recent version was 7.1.3, Acker was making a point about the most current software. The important thing was the current software and not the old content. This continued into a back and forth about what the customer was motivated to purchase.

15-minute recess.

Sec 2.0 Seller Disclosure Schedule

Acker: describes list of copyrights.

Attachment c, d, e.

Acker- Novell’s description of IP.

Sec 1.1 b

Acker: what assets were excluded?

Acker makes the point that it was included in the APA that was approved by the board.

Broderick talks about the “entire” document a couple times.

Attachment E: Only code is on page 8 last 4 items.

Questioned what year was that code written? A: in the 70’s

Acker- has Broderick read from the physical binders, that the copyrights are from 1978.

Novell H6(A6?) March 25th 1996.

Letter from SCO to Novell.

What is pointed out is that both companies have the same address in Utah.

Questioned did anyone move? Such as even out of offices? A: Pretty much everyone stayed in the same spot in the office.

SCO 641 page 3 roman numeral 6, question about engineers changing Novell to SCO in the Copyright Notices. Changes to the code.

Normand counter- content of the document being discussed.

Acker- trying to show whether he knew of the changes.

Judge Stewart- advises to question without going into detail.

L7 Order Form May 1996

Regarding UNIX being licensed. 2nd license agreement May 10th 1996.

4.16a SVRX Royalties

Asked to show where it says it limits it to royalties. A: “It’s in the amendments”

Novell H6 letter March 12th 1996 Jim Maciaszek, Product Manager.

Once again, it is pointed out that Novell/Santa Cruz have identical addresses at this time.

Maciaszek writes that source code royalties would be passed on to Novell.

4.16b says nothing about binary.

End of Cross

Normand begins again.

Broderick: If something is amended, it is as if the old language does not exist, the language was replaced. Referenced Amendment #2.

Objection- Legal opinion.

Overruled.

4.16 SVRX.

SCO 168 Paragraph 2 HP Binary Royalty Buyout.

Copyright registration for all?

Objection, speculation - Sustained. Later an Objection, Leading. So Normand restates as an open-ended question.

End of Normand questioning.

Acker - something about ambiguous questions and 2 opinions.

Singer announces next witness, Ty D. Mattingly.

Singer asks about background:

BYU 1980-1987 College of Engineering --Design Engineering

14 month Education at ISM

On off post-grad work.

IBM 5 years.

Novell 1992 Feb – 1997.

Startup consulting.

Investor 2004.

Vultus(sp?) during acquisition by SCO received 9000 Shares of SCO stock. Mentions he knows: Ryan Tibbitts from BYU.

David Bradford Novell

Russell …. CFO

He was a Novell Product Manager.

Ray Noorda asked him to work with him. When Frankenberg came into the picture, he served the same role. Switched to VP. Mentions Doug Thompson, Ed Chatlos. Asked about negotiations:

Bradford – not very involved
Braham- not very involved

Asked about what transferred.

Exhibit 570 Bradford Memo Sept 15 1995

Exhibit 83 from Bradford memo Novell SCO Term Sheet

Item 1 Novel transfer to SCO

Mattingly- Unix technology assets, UnixWare binary assets.

If copyrights were withheld, would Frankenberg have noticed? Objection speculation, overruled.

Later an objection, leading sustained.

SCO G4 Bradford to Chatlos

Objection - document speaks for itself, sustained.

Recess.

Judge Stewart asks Singer if he will respond to “open door” issue. A: by Monday.

In addition, Normand will submit jury instructions today, and Novell will respond by Monday.

Brennan begins questioning Mattingly.

Brennan start out asking if Mattingly remembers him, Mattingly asks, from the deposition? Brennan says no, “I was your classmate at BYU.” Mattingly responds, “Oh, you’re the guy who cheated off me.” This was a funny exchange and everyone laughed.

Questions about two codenames:
Sleigh ride - refers to Novell and SCO
Ryan River - refers to HP

Discussion of MOU drafts, legal docs and power points

Mattingly said he was there for the MOU part of the negotiation.

At this point Mattingly has a folder. This folder was brought by him to the courtroom. He found it in his garage, I believe; during the break Brennan approached Mattingly, while Mattingly is at the witness stand and looks at the documents. Singer realizes that Brennan is over talking to Mattingly and quickly approaches. There is a discussion between Brennan and Singer and I think Singer asks to look at the documents too.

Mattingly does not address the jury much during his being questioned. He mentions Tibbitts, and Brennan points over his shoulder “you mean this good looking man?” Tibbitts looks behind him for the “good looking man”. Mattingly calls Tibbitts stuffy in a joking manner. Court reacts to the comedic exchange.

Talks about the 9000 shares versus stocks. And how the value of stock changes the value of his shares. This was in dispute with SCO acquiring Vultus. Brennan offers that they “welched” on the deal with Mattingly; Mattingly stops short of agreeing with that term, but says there was an argument over the value of his shares.

Left Novell for Novonyx (a joint venture of Netscape and Novell), I think it was to get Netscape server to run on Netware.

Establishing why he retained a lawyer.

There is a discussion here about “protecting shareholder interests” Brennan takes a legal approach, Mattingly points out, and Mattingly sees it as maximizing value for the shareholder.

Brennan states it is an “occupational hazard.”

Mattingly states he was involved in the input stage of the MOU phase.

OKAY big moment here, Mattingly makes a statement about Chatlos’ testimony and says something like Brennan should know from Chatlos’ already speaking about it. Brennan starts immediately asking, “What do you mean?” “How would you know about that?” It turns into a very tense moment in court when Brennan started pressing Mattingly about how he knew about Chatlos being a witness. Nobody in the room moved. Mattingly finally said he talked with Lee Johnson about it and that Ed Chatlos was on the stand before him.

Mattingly’s replies shorten quite a bit at this point.

Page 89 line 3 and page 90 line 5 of deposition. Quite a bit of back and forth here about what it means to “draft” the document.

Mattingly replies at one point, do I think Braham sat typing at the keyboard, and talks about this being semantics, and one point he ends with “do you?” to Brennan.

Judge Stewart stops him and reminds him not to ask questions.

Mattingly responds: Sorry, I am a little rattled (slight smile).

Novell o45

Brennan asks for it to be marked o45, Singer replies “no objection to it being marked”, Brennan then asks for it to be submitted.

Draft of excluded assets. The document is from Mattingly’s folder I believe.

The date 9/16/95 is handwritten in ink in the top right corner (later Mattingly recounts and says it is a copy, not ink).

Brennan is trying to establish that Mattingly received the document two days before the board meeting on the 18th.

Mentions passage: all copyrights and trademarks .... except ...

SCO 570 Sept 15 1995 Package Brennan asks about what the intent of the board was, at some point it sounds like Mattingly says it was not to protect revenue stream. Mattingly says “stop badgering me” (Mattingly says "badgering" about three times during his testimony").

Singer stands and states “compound question”.

Exhibit z3

Brennan reads the names of those attending the meeting.

Did ____ speak at the meeting? A: yes

What did they say? A: I don’t remember.

This continued for three or four iterations.

Court reporter asks Brennan to slow down at one point in the exchange.

Mattingly goes into a little speech about what he tried to accomplish in CA with 12 people from SCO and 12 from Novell.

Judge Stewart stops him again and reminds him to answer Brennan. And if he has anything to add he can say it with Singer.

Duff Thompson was his boss after Frankenberg, becomes VP of Corporate Development and Strategic Relationships. States that Duff was not really involved in details.

Another revisiting of the “draft” argument. Judge Stewart says “thank you” to Mattingly and stops him.

Brennan asks Mattingly about the patents and if they transferred.

Mattingly mentions Pike(sp?) patents, says he doesn’t think any patents transferred.

Brennan asks how he would know that, Mattingly refers to the document in which it states no patents transferred, one line below the line about the copyrights not being transferred.

At this point Singer reacts and drops down in his chair then whispers to Normand; their lawyers that sit behind them seem to jump onto their blackberries, almost everyone on the SCO side reacted to this exchange. From here on out Singer will shake his head slightly after each of Brennan’s questions.

Brennan leans to speak with Acker or Jacobs, I could not tell, and then asks Mattingly if he has any more documents in his garage and if he would mind getting him the documents. Mattingly says he will.

Brennan also asks if he will return if they have any questions, Mattingly says yes.

End of Brennan questions for Mattingly.

Singer stands and asks one question: who has better understanding, Brahmam or the negotiating team, and Mattingly replies the team would.

Brennan has sat down at this point and then gets up to ask more questions, while Singer is walking back to the SCO table. He hears Brennan start up again, he turns around surprised. Normand puts his hands up in the air at the same time and looks around.

Brennan is asking questions and Singer objects “Way beyond…” Sustained.

End of Mattingly questions.

Hatch addresses, so does Brennan.

P64 line 22 to page 65 line 3

PJ and Pamela Jones is mentioned, then Groklaw.

O’Gara competes with PJ.

Brennan states she is not objective, he then makes the point that Hatch presumes the jury will disobey the Judge’s instructions.

Judge Stewart agrees and Hatch is denied.

SCO counters with, not allowing “scrolling” to jury. I take this to mean they will not display the digital text to the jury, but the word Groklaw will be said. This goes to the jury not being able to see the spelling. I guess the Judge thinks there is little chance of Heinlein fans in the jury.

Brennan says this is fine and agrees to not displaying the words/spelling.

Next Time:

Madsen, Maciaszek, Nagel, depositions? (Steve Sabbath)? and possibly *McBride*.

Update: cpeterson wants to hop in with some answers to questions he's seen posted:
I'm going to shine some color on some spots, and I'll admit right up front that I'm cheating: I'm looking at the comments that have already been posted. I'm going to try to fill in some points of interest.

First point that caught my ear: early in Acker's cross examination of Broderick. Broderick says he has 6,000 shares of SCO stock, plus about 30,000 options. Acker mentions that some of them have strike prices of as low as 12 cents; thus if SCO stock were to rise to, say, $10, Broderick stood to make quite a bunch of money.

Broderick responds that there are also some of his options with strike prices of almost $10; so that if the price went there, he'd make about 30 cents a share.

Then he said something to the effect of "not much chance of that anyway, with a company that's in Chapter 11."

It seems like both sides completely ignored that statement. Did the jury catch on? Dunno.

Eric Acker made a good start, but later on in his cross the jury started to lose interest, or so it seemed to me. Fidgeting, looking around... there's about 3 that are still taking notes at that point.

About Brennan and Mattingly: Brennan starts in by asking Mattingly, "Have you ever seen me before today?"

Mattingly: "I don't know. I don't think so... unless you took my deposition."

It seems like just for sport, Brennan "misunderstands" what Mattingly means by "took my deposition", saying no, your deposition is still on the desk in front of you. They run verbal circles for a moment establishing that the deposition is, indeed, with Mattingly on the witness stand, that Brennan wasn't the lawyer who deposed Mattingly, and that they'd not met before.

Brennan: "I'm disappointed."

Mattingly is looking bewildered and apprehensive.

Brennan: "We were classmates at BYU, so I'm disappointed that you don't remember me." (laughter in the court)

Mattingly: (light dawns) "Oh, I remember - you were the one who always cheated off me!" (more laughter)

Brennan, still laughing with everyone, "Well, actually, I was in Economics, so I never got a chance to get over to the Engineering building."

Then he mentions the folder that he and Mattingly had been looking at during the break. (There had been no mention of the folder during Singer's direct.) The folder, according to Mattingly, was found "during 4th quarter of 2007" (note that my recollection is different from bprice's; he recalls hearing 2009, and I could be wrong. But I remember, as Brennan was saying "4th quarter, so you mean October, November, or December of 200*" that the thought that went through my head was, "hmmm. Right after the Kimball ruling and the bankruptcy filing - before the appeal - at that point SCO looked toast - low urgency, nothing more than a curiosity then." I'm not going to insist on my interpretation, though, 'cause I could very easily be wrong.)

Anyway, Mattingly called SCO's general counsel Ryan Tibbitts (who was a friend of his at BYU), and he did not contact any of Novell's lawyers. It appears, though, that Tibbitts must not have had much interest in them, because he didn't take them - they were still in Mattingly's possession until he brought them to court, or so he indicated.

Further Mattingly & Brennan: the exchange over who was at the board meeting, who was not, who spoke, &c...

Mr. Mattingly started arguing rather than answering. He was admonished by the judge. Mr. Brennan kept the pressure pretty high; Mattingly's answers were becoming hot and loud. As Brennan got into iterating the same set of questions with respect to each person listed as attending the board meeting, the tempo, and the hostility, increased - until the point where the court reporter threw up her hands, palms outward toward each of the two men, and cried "Stop it!"

Mr. Brennan apologized to her; gave her a few seconds to catch up, and then slowly, and much more calmly, continued the set of questions. Mr. Mattingly kept his tone lower, but he clearly wasn't mollified.

How tough is it being a court reporter? I don't know. But I did notice that we got a new reporter at each break.

Mr. Brennan had much better luck keeping the jury on track than Mr. Acker. When he was going over details, everybody was taking notes.

When it got loud and abrupt, though, the jury seemed to be turned off. I don't think they like confrontation.

Mr. Brennan often will take away the opposition's objections before the judge has a chance to rule on them. While going over Mattingly's deposition with him, he asked Tom, the person running the document display, to highlight a certain exchange. Singer objected, saying that the entire answer should be included. Brennan nods to Singer, says "I think that's a great idea. Tom, please extend the highlight to include the next 3 lines to the end of the answer."

I think I remember three occasions where he responded to objections in such fashion.

Mr. Jacobs hasn't been mentioned much. He's keeping pretty quiet. However, from my viewpoint, it looks like he's very active in an air traffic control type role: he keeps track of what points have been made, current trends, and very often has little side conferences with the other lawyers.

The guy who seems to be kind of left out of the whole thing is Mr. Hatch. The only issue I saw him engaged in at all on Day 5 was the O'Gara / Groklaw / PJ matter.


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