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New Proposed Jury Instructions and Novell Tries Again on Prior Ct. Rulings
Thursday, March 18 2010 @ 09:56 AM EDT

The parties in SCO v. Novell have, as promised, filed their proposed jury instructions. And SCO has filed a proposed Jury Verdict form. And Novell has filed a new motion regarding letting the jury know about prior court rulings. SCO has, Novell says, once again crossed the line, despite the court's admonition not to do so. In its examination of Dr. Gary Pisano, it again elicited damages information all the way to 2007, long after there were favorable, to Novell, court rulings. As a result, Novell should be allowed to defend itself by telling the jury about them. Dr. Christine Botosan also calculated her figures into 2007, and Novell in its cross examination should be allowed to ask her about events that happened during that time period. "The prejudice to Novell is palpable," Novell points out.

The filings:

03/17/2010 - 810 - MOTION Renewed Motion Regarding Prior District Court Rulings filed by Defendant Novell, Inc.. (Brennan, Sterling) (Entered: 03/17/2010)

03/18/2010 - 811 - Proposed Jury Verdict by Plaintiff SCO Group. (Hatch, Brent) (Entered: 03/18/2010)

03/18/2010 - 812 - Proposed Jury Instructions by SCO Group, Novell, Inc.. (Hatch, Brent) (Entered: 03/18/2010)

Neither Pisano nor Botosan, Novell says, factored in the impact of the district court rulings on the "projected success of the SCOsource campaign":
The jury thus has now heard evidence of between $100M and $250M in damages that SCO allegedly suffered from Novell's statements. But that evidence is premised ona demonstrable falsity: that Novell obtained no favorable district court rulings during the claimed damages period that also could have contributd to customer reluctance to take SCOsource licenses.
Earlier, the court ruled that the prejudicial effect of telling the jury about the earlier court rulings outweighed their probative value, but now that SCO has quantified damages up to 2007 as if those rulings never happened, "the prejudical effect of not informing the jury of those rulings is overwhelming." The damages calculations "are fundamentally flawed in their underlying assumptions, because they fail to take into account what actually happened -- which was that the Linux community learned in mid-2004 that there was a strong likelihood that Novell was right on the merits of its UNIX copyright ownership contentions and it learned in 2007 that Novell had in fact prevailed on that issue." How can the jury weigh the reliability of SCO's calculated damages, calculated by Pisano who "blinded himself to pertinent district court rulings", without that necessary information?

Can you believe people pay Pisano for calculations based on imagined projections that ignore what really happened?

SCO, Novell writes, brought this on itself. And what it would like now is the permission to cross examine Botosan on "the reliability of her damages opinions in view of Judge Kimball's rulings". Then Novell writes:

Novell acknowledges that the jury may wonder, in the wake of this evidence, why they are sitting jury service. Novell proposes that they be told the following after Dr. Botosan's testimony ends:
Ladies and Gentlemen: You may be wondering why, in view of the evidence you have heard of prior court rulings you have been called to jury service on the issues in this lawsuit. SCO appealed the district court rulings that you have heard about, and the Court of Appeals determined that a jury should decide the issues in this case. That is why you are here.
That last addresses the concern the judge expressed yesterday that if the prior court rulings were mentioned to the jury, he'd have to tell them about the appeals. He implied Novell wouldn't like that, but as you see, they don't mind a bit, so long as he doesn't mischaracterize what the appeals court actually did. Here's what they didn't do. They didn't overrule Judge Kimball in the sense of deciding that he was wrong about Novell retaining the copyrights. They said they expressed no opinion, other than that Novell had strong arguments. They just wanted the jury to make the final call.

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