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Novell Motion to Strike Damages Testimony After June 9, 2004 & Reply to Objections to Braham Testimony
Wednesday, March 24 2010 @ 09:47 AM EDT

Another day begins in the SCO v. Novell trial, with Novell filing a motion to strike testimony of damages after June 9, 2004. And they have also filed a Reply Brief responding to SCO's objections to some of Tor Braham's testimony. SCO objected orally and in a brief they filed on the 21st, part of their list of things they believe Novell can't use because of asserting attorney privilege.

SCO objects to "certain testimony of Tor Braham regarding his communications with Novell concerning the APA and his understanding of Novell's intent pertaining to the APA. I think if you read his declaration you'll understand why it's something SCO would rather the jury not hear. It was Braham who not only negotiated but also drafted the APA, so he is in a position to speak to the meaning of the words and their purposes.

Novell's answers SCO's privilege arguments by pointing out that some drafts of the APA and related documents were not produced earlier because they were not relevant and don't speak to copyright ownership, but now that SCO is objecting, Novell has faxed them to SCO so they can see them. As for the privilege assertions during Aaron Alter's deposition, they were few in comparison to the approximately 150 pages of testimony he provided, and Novell lists for the court a sampling of the questions answered. Some questions SCO asked were too broad, but he certainly answered questions about the topics Braham will be speaking about. And Novell points out Braham filed a declaration long ago on substantively the same topics, and if SCO had wished to depose him, they could have but elected not to.

Here are the filings:

03/23/2010 - 823 - MOTION to Strike TESTIMONY OF DAMAGES AFTER JUNE 9, 2004 filed by Counter Claimant Novell, Inc., Defendant Novell, Inc.. (Brennan, Sterling) (Entered: 03/23/2010)

03/24/2010 - 824 - REPLY BRIEF NOVELL'S RESPONSE TO SCO'S OBJECTION TO CERTAIN TESTIMONY OF TOR BRAHAM filed by Counter Claimant Novell, Inc., Defendant Novell, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Brennan, Sterling) (Entered: 03/24/2010)

The few privileges that Novell asserted during Alter's testimony had to do, Novell explains, with communications after the drafting of the APA, not before, and in some other cases he was allowed to answer the questions anyway, after the objections. Alter was allowed to testify as to the pre-APA negotiations, and so, Novell argues, it should be allowed that Braham can also so testify before the jury.

On the damages motion, Novell points out that the court denied Novell's motion to let them examine witness about the court's prior rulings. One purpose of that motion was to challenge SCO's damages theory, in particular its premise that all loss of sales between May 28, 2003 and October 31, 2007 is attributable to Novell's public statements that it believed it owned the copyrights. In denying Novell's motion, Judge Ted Stewart ruled that the "probative value is very slight, if there is any, for the time frame in question," since in his view the time frame that matters is the year 2003 and early 2004, prior to Judge Dale Kimball's first ruling in June 2004. The judge also ruled yesterday that Ryan Tibbitts could not testify regarding post-2004 contact with potential licensees, because it would be unfair and inappropriate.

So, in light of all that happened yesterday, Novell requests an order limiting SCO's damages to the time period the court said mattered, which would involve striking "irrelevant damages testimony". They mean the witnesses, including Christine Botosan, who went on and on about damages "to this very day," by claiming SCO suffered between $114 million and $215 million in lost profits, her calculations running through the end of October 2007.

Fair is fair, and if Novell can't rebut, the jury should not be allowed to consider that testimony:

Under the Court's March 22 order, expert testimony regarding lost profits from sales that would have been made in some "but for" world after June 9, 2004 is irrelevant and thus inadmissable. See Fed. R. Evid. 402. Because Novell has not been allowed to answer such testimony with evidence that any such damages have other causes, the jury should not be permitted to consider it if and when damages are awarded. More specifically, Novell requests that the Court strike (1) all of Dr. Botosan's testimony relating to damages allegedly sustained in 2005, 2006, and 2007, because those time periods are clearly outside what the Court's order of March 22 defines as "the relevant time frame," i.e., "the year 2003 and early 2004"; (2) all of Dr. Botosan's testimony relating to damages allegedly sustained in 2004, because her testimony provides no principled basis for segregating damages supposedly incurred before June 9, 2004 from those incurred after; and (3) all of Dr. Pisano's testimony relating to potential market size and anticipated volume of license sales in the "but for" world, because his testimony provides no principled basis for segregating sales that allegedly would have been realized in the "but for" world before June 9, 2004 from those that would have been realized after.

Exclusion of evidence of lost sales after June 9, 2004 necessarily precludes any award of damages therefor....

In the wake of Dr. Botosan's testimony that Novell caused SCO to lose hundreds of millions of dollars in profits after Judge Kimball began issuing favorable rulings, Novell asked this Court to permit Novell to elicit testimony related to those rulings both (1) from SCO's witnesses, to rebut the claim that Novell's statements were the sole cause of third-party purchasing decisions; and (2) from Novell's witnesses, to explain why Novell did not change course. (Dkt. No. 815.) By its March 22 ruling, the Court denied Novell the opportunity to do either because it determined that "the time frame that matters is the year 2003 and early 2004 prior to the first ruling by Judge Kimball in June 2004." (Tr. at 1793:25-1794:2.) If that is the time frame that matters, and Novell has been denied the opportunity to defend itself with respect to any later period of time, because that is the time frame that matters, then the jury should be so instructed and testimony of damages allegedly arising thereafter should be stricken.

If Novell properly understands the jurisprudence developed and applied by the Court over the course of these proceedings, including its March 22 ruling, then granting this motion will simply make explicit what is already implicit in what the Court has already decided.

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