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SCO's Motion to Allow Testimony
Wednesday, March 17 2010 @ 02:42 PM EDT

Yesterday, there was a sidebar discussion about allowing in material regarding why customers chose not to sign up for SCOsource. The judge found a case that he thought was definitive, so it was not allowed in. Today, SCO has filed a motion to allow the testimony that the judge ruled inadmissible, and there is also a letter from Brent Hatch, with the testimony SCO wishes to show the jury attached.

The filings:

03/17/2010 - 805 - Motion to Allow Testimony Pursuant to Federal Rule of Evidence 803(3) filed by Plaintiff SCO Group. (Attachments: # 1 Appendix of Unpublished Cases)(Hatch, Brent) Modified on 3/17/2010 changed docket text from Notice of Filing to Motion (asp). (Entered: 03/17/2010)

03/17/2010 - 806 - DOCUMENTS LODGED consisting of Letter from Brent Hatch. (asp) (Entered: 03/17/2010)

If you recall, Darl McBride was testifying about Google and why they didn't snap up a license, and this is what followed:
Q: Did you have a phone conversation with Google where Google expressed interest?

McBride: Yes.

Objection by Mr. Acker. Objection to line of questioning eliciting responses of people who are not here to testify. Mr. Singer requests to approach with cases to support his ability to question. Judge Stewart discusses the prospect briefly then calls a 10-minute break to allow Mr. Singer to put them together. The jury departs.

After the break, but before the jury returns, Novell's Mr. Acker announces that he's learned something. That SCO can use hearsay of customers, and if we don't object we can too. Mr. Singer states that he's found some 3rd and 4th circuit cases to the effect but not 10th circuit. Judge Stewart says they are both wrong and that in his research he found a 10th circuit case to say the witness may say they were going to take a license, and then that they chose not to, but cannot say why. The case is a criminal one, but he believes it applies. There is some brief discussion of citations and decide to go with the 10th circuit case. Mr. Acker then motions to strike Darl's testimony regarding same but Judge Stewart says it's too late. That Mr. Acker didn't object at the time and that it would be hard for the jury to remember what's being stricken (struck?). But to go from this point forward. The jury is brought back in.

This motion is SCO's follow up. Like Novell, they have seen that this judge is not afraid to change his mind, if they can give him a solid reason. What SCO wants to introduce are snippets from depositions in the SCO v. IBM case, based on SCO's theory that their interests are the same. The specific depositions it wants to include are those of Larry Gasparro, who testified that Novell's intervention made it hard to sell SCOsource, although he then mentions Ev1, which took a license after Novell said what it did about the copyrights. They also want to introduce excerpts from Philip Langer's deposition, a sales guy who reported to Gasparro and mirrors his testimony. It's funny, but SCO doesn't have anyone outside the cabal, if I may call it that, to testify about all this. I mean, not that I'm saying this is the case necessarily, but wouldn't it be easy for a bunch of scammers to get together and say whatever they think will help them hit the jackpot, even if it isn't true? Wouldn't it be more effective if someone from Google or Raytheon or whoever came in and verified it? It's hearsay, after all, so unless you can cross examine and ask them if it's really so, they could say anything and there's no way to determine otherwise.

Just saying. I guess that's why the judge ruled against SCO on this.

The other deposition excerpts are Gregory Petit, who had the unhappy task of testifying about the presentation they made to customers, which we learn included the malloc code, so thoroughly debunked when SCO showed it publicly. If SCO continued to use that presentation after the debunking, I'd be amazed, as I think some might view it as fraud.

Yet SCO now wants to introduce that Petit testimony, as if it never learned that SCO can't claim infringement of the malloc code in the first place. They are so sloppy. They stay on message, I guess you could say, on the other hand, no matter what the facts happen to be. But I think you can see from just this little example why it's not such a good thing to introduce materials from another case. The malloc code isn't involved in the Novell litigation, only in the IBM case. So either they'd have to remove that reference, I think, or it introduces something Novell is in no position to rebut, nor should it have to take the time from its presentation of its case to do so. It's possible, as Hatch points out, to redact appropriately to address any Novell concerns.

SCO also attaches as Exhibit B an excerpt from the deposition of Scott Handy, where IBM's lawyer asserted privilege regarding lawyers' discussions between IBM and Novell. Interestingly, though, SCO's lawyer, Ms. Bach, objects to the idea of there being any such privilege to assert.

I see from the report from yesterday that Novell seems to hope that SCO's wins this motion, as it then opens the door for Novell to put on customers' words in rebuttal. It's perhaps accurate to say it doesn't care either way, in that they are ready to do battle on any field, tilted any which way, with any weapons.

Here are the minutes for the 16th:

03/08/2010 - 807 - **SEALED DOCUMENT** Jury Panel Record. (slm) (Entered: 03/17/2010)

03/16/2010 - 808 - Minute Entry for proceedings held before Judge Ted Stewart: Jury Trial held on 3/16/2010. Out of the presence of the jury the Court deals with pending requests/motions. Testimony heard, exhibits admitted. Trial to continue tomorrow 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: various. (slm) (Entered: 03/17/2010)

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