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For the Lawyers, It Was a Working Weekend - Updated
Monday, March 22 2010 @ 10:34 AM EDT

Today at the trial in SCO v. Novell, SCO will finish up its case with the testimony of Ryan Tibbitts. And then Novell begins its side, with its first witness, Joseph LaSala.

While you and I were goofing off over the weekend, the lawyers were very busy. Lots of filings, with SCO now objecting to Novell's proposed witnesses or to some of the testimony. It doesn't want Michael DeFazio's deposition to be played in full, for example, especially the part where he says he thinks Novell retained the UNIX and UnixWare copyrights. SCO says he shouldn't be allowed to opine based only on his reading of the APA. Novell for its side says he was the lead negotiator of the APA for Novell, so he's obviously qualified, particularly as to intent. That's SCO's favorite topic with its witnesses, after all, and all of their witnesses testified as to their understanding of the APA, so fair's fair.

SCO has filed a long document trying to limit what the many lawyers Novell intends to call -- Joseph LaSala, David Bradford, Gregory Jones, Allison Amadia, Tor Braham, and Aaron Alter -- can talk about in front of the jury. That's quite a list, when you consider that SCO presented none. There is no one to rebut their testimony at all.

Novell also has a motion that SCO should not be allowed to present its surprise witness, Troy Keller, since there was no opportunity to do discovery, and it's too late to do it now mid-trial, making the prejudice to Novell too great.

And Novell has filed a Motion for Leave to Examine Other Witnesses on Prior Rulings. Judge Ted Stewart allowed Novell to examine SCO's expert Christine Botosan about them, but he said not to mention the rulings to any other witnesses without leave, so Novell is asking for leave, particularly with respect to LaSala and Tibbitts, not for hearsay purposes, like to establish the truth of a matter. No, but they want to introduce it to challenge SCO's damages theory.

Also, SCO's witnesses have been telling the jury that Novell's statements were the reason, the sole reason, companies failed to take SCOsource licenses, and the rulings show there were other important reasons and also to demonstrate a lack of constitutional malice and also to prove Novell was not reckless with regard to truth. Anyway, Novell argues, the jury already heard about them, so any risk of prejudice was already accepted, and any concerns can more properly be handled by redaction and instruction to the jury, not exclusion.

Novell has found additional cases to strengthen its position it would like the judge to consider. SCO, however, opposes, and it has a case that says it's "error" to allow such rulings to be mentioned, and they oppose the motion vigorously. Novell hasn't presented any evidence that customers were influenced by the rulings, and it's too late now, SCO argues. SCO really doesn't want Tibbitts and LaSala asked about the prior rulings, so it brings up Novell not laying a proper foundation in the Botosan cross-examination, because they know that really irritated the judge.

Here are all the filings. The docket lists Novell's motion as being about its "first witness", but the document itself says it's about "other witnesses":

03/21/2010 - 815 - MOTION for Leave to Examine Its First Witness on Prior Rulings filed by Counter Claimant Novell, Inc., Defendant Novell, Inc.. (Brennan, Sterling) (Entered: 03/21/2010)

03/21/2010 - 816 - OBJECTIONS to Novell's Designation of Testimony of Michael Defazio filed by Plaintiff SCO Group. (Attachments: # 1 Exhibit A)(Hatch, Brent) (Entered: 03/21/2010)

03/21/2010 - 817 - MEMORANDUM in Opposition re 815 MOTION for Leave to Examine Its First Witness on Prior Rulings filed by Plaintiff SCO Group. (Attachments: # 1 Appendix of Unpublished Cases)(Hatch, Brent) (Entered: 03/21/2010)

03/21/2010 - 818 - MOTION TO PRECLUDE SCO FROM CALLING TROY KELLER AS A WITNESS filed by Counter Claimant Novell, Inc., Defendant Novell, Inc.. (Brennan, Sterling) (Entered: 03/21/2010)

03/21/2010 - 819 - Memorandum of Points and Authorities on the Limitations on Novell's Trial Testimony Imposed by Novell's Own Privilege Objections filed by Plaintiff SCO Group. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(Hatch, Brent) (Entered: 03/21/2010)

03/22/2010 - 820 - REPLY BRIEF Novell's Response to SCO's Objection to Novell's Designation of Testimony of Michael DeFazio filed by Counter Claimant Novell, Inc., Defendant Novell, Inc.. (Attachments: # 1 Exhibit A)(Brennan, Sterling) (Entered: 03/22/2010)

The exhibits to 819 are:
  • Exhibit 1 is Gregory Jones' deposition excerpts
  • Exhibit 2 is Aaron Alter's
  • Exhibit 3 is Joseph LaSala
  • Exhibit 4 is a SCO's lawyer Ed Normand's letter to Novell's lawyer, Ken Brakebill, that in SCO's view, Novell had waived the attorney-client and work-product privilege.
  • Exhibit 5 is Novell's response to the issues raised in Exhibit 4 as well as issues regarding the privilege log.
  • Exhibit 6 is an email from Greg Jones to Jim Lundberg and Joe LaSala, in which he tells about Darl asking for contracts or any and all documents that might show SCO's rights with respect to UNIX. For example, he asked his assistant to get hold of the contract on the purchase of USL by Novell.
  • Exhibit 7 is a November 2002 email from Jones to Lundberg, Lasala, Patrick McBride, and Ryan Richards regarding Darl's desire for USL-Novell documents. "I'm very leery of this request for a variety of reasons." Contrast this with McBride's testimony.
  • Exhibit 8 is a December 2002 email, marked "Novell Confidential ** Attorney Client Privileged" from Jones to Carl Ledbetter, Chris Stone, Dave Wright, Lundberg, LaSala, Richards, and Bill Smith III. The subject line is: SCO (formerly Calder) -- Linux "Licensing" Program. The email recounts Darl's request, and that Novell had no interest in joining in. Then it relates that Jones and Dave Wright together called Darl, and that's when Darl told them about the Linux "licensing" program to be announced in a week. "Apparently SCO will spin this campaign as a means for Linux vendors and end users to ward off Microsoft IP infringement assertions against Linux (Darl alluded to a CRN article from today, attached), although it seem evidenct that this characterization is such a stretch that it could not possibly play well in the press or the marketplace (i.e., receiving a license under SCO IP in no way shields a Linux vendor or user from any claims under Microsoft IP)." The email also mentions that Jones didn't tell SCO that it had plans to get more involved in Linux, but that demonstrates that its later purchase of SUSE was not inspired by SCOsource or the litigation against IBM, neither of which had occurred yet.
The attachment to #820 is videotaped excerpts of Michael DeFazio's deposition in 2005 in connection with the IBM litigation. He describes Novell's Unix business as having two parts, the UNIX source part and the UnixWare binary part. Here is a bit of it, with David Marriott for IBM asking the questions:
Q: How many UNIX businesses did Novell then have?

A: The way we looked at the UNIX business, we parsed it into two components at that time. A UnixWare business and a source licensing or legacy System V business.

Q? And what was the purpose of each of those businesses, if you could briefly describe it?

A: The UNIX System V source licensing business was the outgrowth of the original way we provided UNIX system technology to the marketplace where we provided it in source form customers were adapted to their marketplace needs, they in turn would ship a binary version of the operating system to their customers, pay us a royalty.

The UnixWare business Novell was actually developing a final binary form version of the UNIX operating system that was targeted to Intel specific X86 computer systems, basically PCs and servers and providing that product, that operating system product in binary form into the ...

The excerpt cuts off in mid-sentence, but I think it's clear that Novell did not see the branch as the tree trunk.

Update: More:

03/22/2010 - 821 - APPENDIX to 819 Memorandum (NOT to motion), Memorandum (NOT to motion) filed by Plaintiff SCO Group. (Hatch, Brent) (Entered: 03/22/2010)

This is a SCO list of privilege objections Novell allegedly made during depositions. I say allegedly because when I read them, what I see in many cases is Novell saying they don't know if they will assert the privilege or not, but if so, it's question by question.

Update: And here are the minutes for the day, while we await the details:

03/22/2010 - 822 - Minute Entry for proceedings held before Judge Ted Stewart: Jury Trial held on 3/22/2010. Week three of trial begins. Testimony heard, exhibits admitted. Trial will 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: P. Walker, E. Young, B. Janke. (slm) (Entered: 03/22/2010)

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