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Novell's Appeal Brief in the WordPerfect Litigation Against Microsoft - Updated 2Xs
Sunday, August 22 2010 @ 08:40 PM EDT

We have at last Novell's appeal brief [PDF] in the private antitrust case Novell brought against Microsoft regarding WordPerfect. The brief was filed with the US Court of Appeals for the Fourth Circuit. It begins: "This case has been here before." Indeed. Here's the decision from the US District Court in Maryland that Novell is appealing, as text.

But there's more. Microsoft is fighting to keep certain documents it alleges the judge in the district court didn't base his ruling on from being considered by the court of appeals. Here's the Microsoft Motion to Strike [PDF]. The full title is Motion to Strike Certain Exhibits from the Joint Appendix and Any References to Such Documents in Novell's Brief. Microsoft is relying in part on some cases Novell already pointed out to Microsoft don't apply, as I'll show you. [Update: One of the exhibits is actually marked as filed under seal. So we've now split them apart.] [Update 2: We checked, and the filing is now unsealed and is part of the public record, so I've added it to the list.]

But the case is interesting also on a tech level, because, in my view, the judge doesn't understand fully the difference between an operating system and an application. He ruled that WordPerfect is, under the relevant APA, an associated DOS operating system product and hence covered by the DR DOS litigation Caldera brought successfully against Microsoft. Because he lumped them together in a jujitsu way, accepting Microsoft's position, he found for Microsoft on summary judgment.

That reminds me, because Groklaw is now in the Library of Congress's digital collection, accessible if you visit the library, I have been taking time to try to fix older broken links, and I just finished updating the links in the US v. Microsoft litigation section, part of our permanent page on Microsoft Litigation, to include the famous video moment, the doctored video. There are links now to Ed Felten's testimony [PDF] that you could indeed uninstall IE in Windows 98, the trial exhibits, the depositions used, and direct testimony transcripts. including the transcript of the cross examination of Microsoft's Jim Allchin by David Boies, the famous Perry Mason moment. The transcript is, ironically enough, in Microsoft's .doc format, but if you don't have Microsoft Windows and don't wish to buy it, you can download OpenOffice.org for free, as in beer and as in freedom, thanks in part to all the antitrust rulings in the US and the EU and then thanks to all the volunteers who worked so hard to give us a viable alternative, and you'll be able to read it just fine.

If you notice any broken links, particularly on our permanent pages, please let me know. Being included in the Library of Congress is a great honor that I feel deeply, and when I disappear on the weekends somewhat these days, it's because I'm feeling that responsibility, knowing our work is available to researchers there who might not otherwise know about Groklaw, and I want to be sure our historical collections are as accurate as human limitations and the constantly changing Internet allow, so they are optimally useful. Also, I continue to work on completing our collection of exhibits in the Comes v. Microsoft antitrust case, some of which turned out to be relevant in the Novell v. Microsoft case, so if you'd like to help finish up, just go here, find any numbered PDF that isn't described or available in full as text, and do either a description or a transcript following the general style you see others have used, and then post what you find in plain text, ideally with HTML done and showing, or email me by clicking on the envelope icon. Thank you.

But let's take a look at the latest dispute in the Novell v. Microsoft appeal.

Novell's argument is summarized in the opening section of its brief:

This case has been here before. In Novell, Inc. v. Microsoft Corp., 505 F.3d 302 (4th Cir. 2007), cert. denied, 552 U.S. 1276 (2008), this Court held that Novell had “antitrust standing” to sue Microsoft for destroying Novell’s once-pervasive WordPerfect word processor and other Novell business applications (“Business Applications”) to protect Microsoft’s undisputed Windows monopoly in the market for personal computer (“PC”) operating systems.

This Court granted Microsoft an interlocutory appeal from the ruling on antitrust standing, but not from the ruling on another issue: whether Novell assigned the present antitrust claims for injury to its Business Applications to another company, Caldera, in connection with the 1996 sale of Novell’s DR-DOS operating system and companion products (“DOS Products”).

The district court had held that, as a matter of law, the plain language of the Asset Purchase Agreement (“APA”) between Novell and Caldera unambiguously provided for the transfer only of Novell’s DOS Products and claims for injury to those products, not of claims for injury to products, such as WordPerfect or the other Business Applications, that were not themselves transferred to Caldera. Indeed, the district court dismissed Microsoft’s contrary interpretation of the APA as “a far stretch.” It is thus not surprising that this Court declined interlocutory review of this issue, for it was not close.

On remand, however, the district court did a complete about-face, concluding that its “earlier ruling was wrong.” JA-371-72. The same district court that once found as a matter of law that the APA’s plain language cannot reasonably be interpreted, as Microsoft maintains, to assign claims for injury to the Business Applications, now held that the very same language cannot reasonably be interpreted any other way.

The district court had it right the first time, and the issue is still not a close one. The APA simply transferred to Caldera all of Novell’s products “associated with the DOS Business,” which the APA expressly defined as seven versions of DR-DOS and six specifically named companion DOS-based applications. Along with these “DOS Products,” the APA “assign[ed] to Caldera” intellectual property rights to, and “all revenues associated with,” the DOS Products. Likewise, the APA “assign[ed] to Caldera all ... claims or causes of action ... associated directly or indirectly with any of the DOS Products.” There was nothing complicated about the transaction: Novell sold its “DOS Business” to Caldera – the DOS Products, the intellectual property rights to those products, and the revenues and claims “associated” with those products.

The language of the APA is thus clear and straightforward, and it means precisely what it says. But the meaning of the APA is equally clear from what it does not say. The APA nowhere mentions WordPerfect or any other Business Application, let alone any intellectual property in or revenues or claims “associated” with those products. They were not part of the deal.

The district court interpreted language assigning to Caldera all claims “associated directly or indirectly with any of the DOS Products” to include all antitrust claims alleging injury to any products Novell ever owned, caused by any of Microsoft’s anticompetitive conduct in any aspect of the operating system market. According to the district court, because Novell’s antitrust claims here allege that Microsoft targeted the Business Applications to preserve its monopoly in the operating system market, and because DR-DOS had once competed in the operating system market, the claims here are “associated” with the DOS Products and therefore were assigned to Caldera.

This strained interpretation, with all due respect, goes beyond a “far stretch,” for the plain language of the APA is not reasonably amenable to it. But even if the APA were so amenable, then the language would be ambiguous, because the district court’s construction is not compelled by the APA’s language. Consequently, the meaning of the APA would have to be resolved through extrinsic evidence.

And the extrinsic evidence – all of it – leaves no doubt that the district court’s initial reading of the APA was correct. Both parties to the APA unequivocally attested that it was intended to assign claims for injury only to the DOS Products – the only products being transferred – and not to any other Novell products. The parties’ conduct subsequent to the assignment is equally telling: after acquiring the DOS Products and the claims “associated” with them, Caldera brought suit for antitrust injury only to those products, not for injury to the Business Applications or any other products. Thus, even if extrinsic evidence were necessary to determine the meaning of the APA’s assignment provision (and it is not), Novell would nonetheless be entitled to judgment on this issue as a matter of law. And even if the extrinsic evidence were in any way ambiguous, Novell would surely be entitled, at a bare minimum, to a jury trial to resolve the contracting parties’ intent.

As demonstrated in Part IV infra, the district court separately erred in ruling that Novell’s Complaint did not fairly notify Microsoft that Novell was seeking redress for injury to its GroupWise e-mail and collaboration application.

Four documents that Microsoft most especially does not want the court of appeals to consider are mentioned in Novell's footnote 9:
9 The conduct by which Microsoft injured the Business Applications could not have injured the DOS Products because DR-DOS was not among the potential challengers to Microsoft’s operating system monopoly that were weakened as a result of Microsoft’s destruction of Novell’s Business Applications. See JA-2081 (“What effect could Microsoft’s conduct have had on Novell’s DR DOS business after [September 1994]? There no longer was a DR DOS business to be affected.”); JA-2682 (“[B]y 1994, ... Microsoft had eliminated DR-DOS as a competitive force in the PC OS market.”); JA-2687-91; JA-2694 (“No matter how successful DR DOS might have been in the early 1990s absent Microsoft’s allegedly anticompetitive actions, its ability to affect operating system competition in the second half of the 1990s ... was minimal.”).
It would like this case decided without all the facts, on the grounds that nothing can be considered on appeal that wasn't part of the lower court's materials, which is legally correct, and these documents were in a sur-reply, which Novell filed a motion requesting to have considered. If the district court had ruled that it would not allow the sur-reply, then Microsoft would be on solid ground.

If you look at the Novell v. Microsoft Timeline, however, you won't find any such ruling, *one way or the other*. For example, look for number 114 [PDF], where you'll see the document described like this:

Motion for Leave to File Surreply by Novell, Inc. Responses due by 15-Mar-2010.
That was on February 24th. That's what Microsoft is talking about. It filed its opposition [PDF] on March 1st. On March 30, without ruling on the Novell motion in any overt manner as far as the docket is concerned, the court issued its Opinion and Order [PDFs], granting Microsoft's motion for summary judgment. See all that?

I think, however, it cannot be argued truthfully that the judge didn't know about the filing, because in a letter [PDF] Novell sent to the judge on March 3rd, docket number 116, it referenced the filing of the motion asking to file the sur-reply, and letting the judge know that while Microsoft had filed an opposition, Novell would not be responding to it. That means to me that he knew the motion was now fully briefed. Even if he'd missed the docket filing, the letter specifically drew it to his attention. I think, then, he had to know about it, and he knew it was fully briefed.

The Opinion is where the judge explains the why of his decision, and significantly, he wrote this:

For the reasons stated in this Opinion, I find that Novell no longer owns the claims and may not pursue them here. As a matter of strict analysis, that is the end of the case. However, in light of the age of MDL 1332 in general and of this lawsuit in particular, I will also address the substantive viability of Novell’s claims. This will enable the Fourth Circuit, upon an appeal of my rulings, to address the antitrust issues presented, in the event that it disagrees with my conclusion relating to the claims ownership issue. As to the antitrust claims, I find that, had Novell not assigned them to Caldera, Count I would have survived Microsoft’s summary judgment motion but Count VI would not have survived Microsoft’s motion.
He's saying that while he is ruling that Novell sold its claims to Caldera and so the DR DOS litigation covered WordPerfect too, had Novell wanted to sue over that, but he is also acknowledging that if he's wrong on that key point, that he believes Novell's Count I would give them the right to go to trial. That's exactly the point I think he did get wrong, and of course it's vital to Microsoft that the court of appeals affirm the district court's interpretation. The documents it wants stricken would work against Microsoft's interests.

In Novell's brief, it explains what the district court, in its view, got wrong, by describing the twists and turns taken to get to the end destination it arrived at. It tries to explain the difference between DR DOS and WordPerfect, beginning with the categories they are each in, requiring different anticompetitive approaches on Microsoft's part to try to do them in:

But the DOS Products and the Business Applications were two entirely distinct groups of products in two different lines of business posing two different types of threats to two different Microsoft operating systems, and Microsoft employed two different campaigns of anticompetitive conduct during two different time periods to destroy them.

From 1990 through September 1994, Microsoft targeted DR-DOS, a contemporary competitor of Microsoft’s own DOS operating system, MS-DOS, through the use of vaporware, certain exclusionary licenses, beta blacklisting, intentional incompatibilities between Windows 3.1 and DR-DOS, and pre- announcement of the tying of MS-DOS and Windows 95. See supra 10-11. Novell did not even acquire the Business Applications until the spring of 1994. And not until October 1994 – after DR-DOS was discontinued – did Microsoft begin to prevent the emergence of new competitors to its Windows operating system monopoly by attacking the Business Applications.9 Specifically, Microsoft withdrew the namespace extension APIs in Windows 95, manipulated the MAPI standard for Windows 95 and subsequent versions of Windows, refused to implement promised printing functionality in Windows 95, refused to certify the Business Applications for Windows 95, and imposed exclusionary licenses on certain distributors.10 See supra 14-25.

Accordingly, the antitrust claims for injury to the DOS Products were entirely distinct from those for injury to the Business Applications. To treat the claims for injury to the Business Applications as nonetheless being “associated” with the claims for injury to the DOS Products, as the district court did, in effect rewards Microsoft for its multiple anticompetitive schemes.

The district court nonetheless thought it could find such an “association.” None of its supposed connections withstands scrutiny. First, the court said that although Novell was no longer marketing and supporting its DOS Products by October 1994, “its value certainly would have been affected by anticompetitive activity in the operating system market” in October 1994. JA-372 n.3. The court’s only apparent support was this: “[A]lthough Novell announced in September 1994 that it would exit the DR DOS business, according to the allegations made in the Caldera amended complaint against Microsoft, Novell continued to sell some DR DOS products thereafter.” JA-372 n.3. But those sales were trivial in volume. See, e.g., JA-1824; JA-1876; JA-1929. More fundamentally, whatever the volume of this revenue, the inescapable point is that DR-DOS no longer posed a competitive threat to Microsoft’s operating system monopoly after its discontinuance in September 1994; the anticompetitive acts against the Business Applications were not targeted – directly, indirectly, or even conceivably – at DR-DOS.

Second, the district court thought it significant that Caldera had sought an injunction “requiring Microsoft, for a period of ten years, to disclose to Caldera all [APIs] for any operating system it produces.” JA-372 n.3. This shows, the district court said, that “the failure of Microsoft to disclose APIs” – which was “an important part of Novell’s claim asserted in Count I of this action” – “was damaging DR DOS.” JA-372 n.3; see also JA-374 n.7. But Microsoft’s failure to disclose the MS-DOS APIs had nothing to do with Microsoft’s later manipulation of Windows 95 APIs to injure the Business Applications. As explained by Stephen Hill, a lawyer who helped prepare Caldera’s complaint against Microsoft, Caldera “asked for that relief because DR DOS had to support the same APIs as MS-DOS in order to be competitive.” JA-5027-28 ¶¶ 3, 8, JA-5030-32 ¶¶ 16, 19. In any event, this case is not about Microsoft’s failure to disclose APIs. This case concerns Microsoft’s evangelization and disclosure, then subsequent withdrawal, of those APIs.

Third, the district court observed that “the allegations of misconduct by Microsoft made in this action were undertaken in a market that already was dominated by Microsoft, allegedly in part because of anticompetitive actions it had previously taken against DR DOS.” JA-372 n.3. But Novell does not contend that Microsoft’s ascension in the operating system market prior to assaulting the Business Applications injured the Business Applications and therefore that ascension is not part of the claims asserted in Counts I and VI here.

Finally, the district court noted that “Novell’s expert asserts that Microsoft was motivated to act anticompetitively against Novell in part because of Novell’s purchase of DR DOS.” JA-372 n.3. It is no doubt true that Microsoft viewed Novell as a competitor on many different fronts. But the district court’s statement fails to distinguish between the different ways Microsoft acted anticompetitively, the different lines of business it attacked, and the different time periods in which it targeted Novell’s businesses. Novell’s purchase of DR-DOS motivated Microsoft to take certain anticompetitive actions against DR-DOS; Microsoft later took distinct actions against the Business Applications; and it took still other actions against other Novell products, such as NetWare.

3. Novell’s Interpretation Does Not Render “Indirectly” Superfluous

Microsoft argued below that Novell’s interpretation of the APA is unreasonable because it “fails” to “give[] independent meaning to the term ‘indirectly.’” JA-4997. In Microsoft’s view, all claims for injury to the DOS Business are “associated directly” with the DOS Products – and so if “indirectly” is to have an office, it must encompass claims, such as Counts I and VI, that are based on the theory that Microsoft’s anticompetitive conduct harmed the operating system market in which DR-DOS formerly competed. JA-4997.

Microsoft’s argument is mistaken. Novell’s interpretation does not deny the term “indirectly” any reasonable meaning. Even an “indirect” association must be an “association.” And for the reasons discussed throughout this brief, there is no association – direct, indirect, or otherwise – between the DOS Products and claims for injury to the Business Applications, at least not of a sort that could plausibly have been intended by the contracting parties.

4. Conclusion: Novell’s Interpretation Is the Only Tenable Interpretation

In sum, interpreting the assignment provisions of the APA ends where it began – with the unambiguous language of those provisions. The APA assigns any and all, but only, claims “associated directly or indirectly with any of the DOS Products.” It does not assign any claims, none, “associated directly or indirectly with any of” the Business Applications. The language of the APA is not amenable to any other construction.

This language certainly cannot be made to yield the bizarre assignment that Microsoft, and now the court below, have concocted from it. It is inconceivable that the parties to the APA intended to assign a subset of claims for injury to Novell products that were not transferred under the APA, and that they further intended for the assignment of any particular claim to turn on a contingent, unspecified happenstance involving a stranger to the contract, such as whether the defendant’s wrongful conduct was intended to affect the market in which the DOS Products once competed. The district court should have entered summary judgment for Novell.

Microsoft, in its Motion to Strike Certain Documents, wants the following to be struck, and it explains why:
Pursuant to Federal Rule of Appellate Procedure 10(a), defendant-appellee Microsoft Corporation ("Microsoft") hereby moves to strike the documents set out at pages JA-2079-83, JA-2681-82, JA-2685-91 and JA-2692-941 from the Joint Appendix and to strike any references to those documents from the Brief filed by plaintiff-appellant Novell, Inc. ("Novell") on August 6, 2010.

Novell here appeals from a March 30, 2010 Judgment entered by the district court (Hon. J. Frederick Motz) after it granted Microsoft's motion for summary judgment in the action. The documents now at issue were not in the record in the district court and were not before Judge Motz when he ruled on the parties' cross-motions for summary judgment.

Rather, these documents were merely appended to a proposed sur-reply brief that Novell sought leave to file after oral argument on the summary judgment motions. (See Docket Entry 114, Motion for Leave to File Surreply by Novell, Inc., Novell, Inc. v. Microsoft Corp., Civil No. JFM-05-1087 (D. Md. Feb. 24, 2010), attached as Ex. 1 to the Affidavit of Steven L. Holley in Support of Microsoft's Motion to Strike, sworn to on August 11, 2010 ("Holley Aff.").) Judge Motz never granted Novell's motion for leave to file a sur-reply brief, nor is there any reason to believe that he considered the proposed sur-reply brief in rendering his decision.2 Indeed Judge Motz makes no reference whatsoever to any of the four documents at issue. (See Opinion, Novell, Inc. v. Microsoft Corp., Civil No. JFM-05-1087 (D. Md. Mar. 30, 2010), attached as Ex. 4 to Holley Aff.)

Under Federal Rule of Appellate Procedure 10(a)(1), only those papers and exhibits that were “filed” in the district court can constitute part of the record on appeal. Fed. R. App. P. 10(a)(1). The law is clear that the “record on appeal does not include exhibits attached to [a] sur-reply brief that was lodged with [the] trial court but never accepted for filing by that court.” 20 MOORE’S FEDERAL PRACTICE § 310.10[2][a], at 310-13 n.16.1 (citing Nicholson v. Hyannis Air Serv., Inc., 580 F.3d 1116, 1127-28 & n.5 (9th Cir. 2009)). For that reason alone, the four documents at issue should be stricken from the Joint Appendix.

This Court has recognized that in an appeal from a grant of summary judgment, only those documents that were considered by the district court constitute part of the record on appeal. Rohrbough v. Wyeth Labs., Inc., 916 F.2d 970, 973 n.8 (4th Cir. 1990) (“[W]e decline to consider . . . documents not considered by the district court.”); see also Causey v. Balog, 162 F.3d 795, 804 n.5 (4th Cir. 1998). In Rohrbough, this Court held that documents not considered by the district court in deciding a motion for summary judgment were not part of the record on appeal even though plaintiffs had attached those documents to a motion to supplement the record that was filed in the district court. 916 F.2d at 973 n.8. Like the four documents attached to Novell’s proposed sur-reply brief, the documents at issue in Rohrbough were attached to a motion that appeared on the district court docket sheet and thus were available to this Court. That was not sufficient to make them part of the record on appeal, and the same analysis should apply here. 3

Microsoft therefore respectfully requests that this Court strike the four documents at issue from the Joint Appendix and any references to those documents from Novell’s Brief.4

______

1 These documents are (1) a letter from Richard Urowsky to Stephen Susman, dated August 5, 1997 (JA-2079-83); (2) an excerpt from the Liability Report of Frederick R. Warren-Boulton, In re Microsoft Corp. (MDL Docket No. 1332), dated August 26, 2002 (JA-2681-82); (3) portions of the expert deposition of Frederick R. Warren-Boulton, In re Microsoft Corp. (MDL Docket No. 1332), dated February 20, 2003 (JA-2685-91) and (4) an excerpt from the Expert Report of Kevin M. Murphy, Friedman v. Microsoft Corp., dated July 14, 2003 (JA-2692- 94).

2 Novell contends that Judge Motz must have considered the proposed sur-reply brief because he "responded to an argument raised therein" and "cited one of the cases uses by Novell, right down to the page reference." (Letter rom Jeffrey M. Johnson to Steven L. Holley, July 28, 2010, attached as Ex. 2 to Holley Aff.) That is wrong. Although the argument that an assignment of antitrust claims must be express ws mentioned in footnote 8 of Judge Motz's opinion, the proposed sur-reply brief was not the first time Novell had made that argument in the district court. Nor was it the first time Novell sought to rely on Lerman v. Joyce International, Inc., 10 F.3d 106, 112 (3d Cir. 1993). Novell's July 2008 brief in support of its first motion for summary judgment makes the same argument and cites the Lerman case as support. (See Memorandum of Law in Support of Novell's Motion or Summary Judgment on Six Affirmative Defenses, July 15, 2008, at 10, attached as Ex. 3 to Holley Aff.)

3 Even if the four documents could be said to constitute part of the “record on appeal” for the purposes of Rule 10(a)(1) by virtue of having been attached to Novell’s motion for leave to file the sur-reply brief, they were not considered by Judge Motz in granting summary judgment in Microsoft’s favor, so Novell should not be allowed to rely on them in this Court. See Causey, 162 F.3d at 804 n.5; Rohrbough, 916 F.2d at 973 n.8; see also Barcamerica Int’l USA Trust v. Tyfield Imps., Inc., 289 F.3d 589, 595 n.6 (9th Cir. 2002).

4 The documents are referred to in footnote 9 on pages 39-40 of Novell's Brief.

Well, let's slow this buggy down and see if that is so. By the way, just as a side point for you and historians, Steven Holley is the same lawyer for Microsoft who tried to make Jim Allchin's devastating cross examination about the video a little better in redirect in the US v. Microsoft antitrust case. Nothing new under that sun.

Back to our current case, is Microsoft now more accurate than it was in that video? Let's see. We know the judge knew about the Novell motion about the sur-reply, because of Novell's letter, which not only mentioned it, it let the judge know the motion was fully briefed, so he certainly was free to consider it, I would think. Also, while far be it from me to even wonder if Microsoft's lawyers are as honest as the day is long -- or not -- let me show you the footnote in the Rohrbough case that Microsoft references and relies on, and then you can do your own wondering. To help you along, I've placed some explanatory notes here and there in colored text in brackets, beginning with my initials:

8 Plaintiffs also attempt to rely on several documents that were not before the district court when it considered defendant's motion for summary judgment, including a letter from Dr. Crumrine to plaintiffs' attorney dated February 1, 1985, some four years before her deposition, in which she states that "there is a probable relationship" between Tyressa's seizures and her DPT/DT immunizations. Whether or not probable relationship comes close enough to probable cause to support a jury finding of proximate cause, which is itself problematic, we decline to consider the letter as well as the other documents not considered by the district court.

[PJ: So this was a letter that was NOT sent to the judge. It was a letter the plaintiffs found that they could have filed with the court, but didn't. So the appeals court refused to consider it, since the lower court didn't have it.]

Plaintiffs first attempted to supplement the record by filing in the district court a motion "to file necessary discovery documents for appeal purposes," which the district court denied because the plaintiffs had not filed the documents in question or brought them to the attention of the district court, as it considered the various papers in evaluating the motion for summary judgment. Plaintiffs inserted the documents into the joint appendix anyway, and defendant moved in this court to strike those portions of the appendix. We denied the motion, subject to our reconsideration of the matter. Upon reconsideration of the issue, we conclude that the district court correctly denied the motions; that the documents are not properly before us; that defendant's motion to reconsider our denial of its motion to strike part of the joint appendix is well taken; and the same is granted. The documents thus are not a part of the record we consider in this appeal.

[PJ: See the difference? The plaintiffs in this case tried to file the document after the district court was finished deciding the case, and their motion to the appeals court to consider the document was denied. So they asked for reconsideration and got turned down. Novell, in contrast, did file its motion with the court, and it is in the docket sheet. The district court did not deny its motion to file it, unlike in this case where it had. It was fully briefed in Novell's case, and since the next thing that happened was the decision overall on the case, there actually is no reason to compare it to this case.]

Plaintiffs based their motion in the district court on the Local Rules for the Northern District of West Virginia, which provide that certain discovery materials shall be retained by the parties as custodians. That Rule 2.08(b)(1) did not relieve plaintiffs of a duty to file the documents in response to defendant's summary judgment motion is demonstrated by Rule 2.08(b)(3): "If depositions, interrogatories, requests for documents, requests for admissions, answers or responses ... are necessary to a pretrial or post-trial motion, the portions to be used shall be filed with the Clerk at the outset of the trial or at the filing of the motion insofar as their use can be reasonably anticipated by the parties having custody thereof." Thus, the local rules afford plaintiffs no justification for filing materials on appeal that were not considered in the district court, and we are of opinion that the district court's denial of plaintiffs' motion was not an abuse of discretion. See Samuels v. Wilder, 871 F.2d 1346, 1354 (7th Cir.1989). Moreover, most of the proffered documents, including the Crumrine letter, are unsworn hearsay that could not properly be considered on a summary judgment motion in any event under Fed.R.Civ.P. 56(e).
See what I mean? Lets hope the court of appeals has law clerks who actually look up cases, as I just did, so that they too can join in the wonderment. And then tell the judges. Microsoft must have thought of that, which is why it states in footnote 3 that even if the documents were part of the record, they still should be thrown out, because somehow Microsoft knows the judge didn't consider them.

This is one of those times in the law when you wonder why someone doesn't do the simple thing and just ask him. Sometimes lawyers get too tricky by half. If it's halfway plausible, they'll argue it. That's why courts set limits on page length. Litigators can't stop on their own steam.

Judge Motz certainly was free to consider the Novell motion. So why doesn't someone let him know about the dispute about this and ask? I know. Too simple. There's probably some rule or something. But does it make any sense to file 75-page motions instead?

Microsoft attaches four exhibits, the first being the docket sheet [PDF], which might I point out does NOT show that Judge Motz ever denied Novell's motion to file the sur-reply. Exhibit 2 is Novell's letter to Microsoft's lawyers [PDF] dated July 28, 2010, in which it lets them know that it did speak with an appeals clerk who told Novell that "the entire record will be forwarded to the Fourth Circuit upon its request, including Docket entry 114 (Novell's Motion for Leave, Surreply, and Exhibits)."

But here's the point I'm especially wanting to highlight: Novell points out that Rohrbough doesn't match the facts here, if you notice in footnote 1 in the letter to Microsoft, so they did check. Good. No doubt they'll tell the judge that too. But it also means that they told Microsoft's lawyers in that letter that the two cases it cited, Rohrbough v. Wyeth Laboratories and Nicholson v. Hyannis Air Service, a Ninth Circuit case, actually, were not on point, since in both cases, the lower court had explicitly rejected the proposed sur-reply the plaintiffs tried to file. Here's Nicholson:

Nicholson's arguments on appeal rely in part upon evidence that was not filed with the district court—deposition excerpts that were attached to Nicholson's proposed sur-reply. Nicholson did not appeal the district court's rejection of the proposed sur-reply. However, she nonetheless included five pages from these deposition excerpts in her Excerpts of Record.
And yet, although knowing that as of the date of the letter, July 28, 2010, in the Microsoft Motion to Strike, filed on August 11, Microsoft used the cases as if it did not realize the difference in the fact patterns. In fact, on Rohrbough, it writes:
In Rohrbough, this Court held that documents not considered by the district court in deciding a motion for summary judgment were not part of the record on appeal even though plaintiffs had attached those documents to a motion to supplement the record that was filed in the district court. 916 F.2d at 973 n.8. Like the four documents attached to Novell’s proposed sur-reply brief, the documents at issue in Rohrbough were attached to a motion that appeared on the district court docket sheet and thus were available to this Court. That was not sufficient to make them part of the record on appeal, and the same analysis should apply here.
You can read the case for yourself. You can see that this is a distorted description, in that the document in that case was rejected by the lower court, and it added it to the Index anyway in the appeal. Just totally different.

So, why? Why do lawyers do such things? I know you've seen it happen in the SCO saga too. Well, I can't read minds, but my analysis would be that lawyers do this if they are not as honest as the day is long sometimes, and sometimes because they haven't researched very well, and sometimes simply because there are no good cases that support what they want the court to give them. There may be other reasons I'm not privy to and thus can't imagine. But to me, it's a sign of a weak argument, in effect bluffing, and if I were a judge, it would totally annoy me, assuming I caught it. And if I were a judge, that would be my job. But if you see lawyers doing something repeatedly, sometimes it just means they've found they succeed that way. What a way to succeed.

Novell, Microsoft finishes up by stating, will be opposing this Motion, and how:

Pursuant to Local Rule 27(a), Microsoft has informed Novell’s counsel of Microsoft’s intention to file this motion. Novell does not consent to the granting of this motion and has indicated that it intends to file an opposition to the motion.
So, we'll get to see what Novell says, and when it happens I'll show it to you.

Here is the entire Microsoft filing [PDF], 75 pages, with all the exhibits attached in one PDF. And here's the unsealed document [PDF], Novell's Memorandum of Law in Support of its Motion for Summary Judgment on Six Affirmative Defenses, attached to Microsoft's motion as Exhibit 3. To avoid confusion, here are the motion and all the exhibits:

Update 2: Microsoft's motion was granted [PDF] on Aug. 30th. Novell must do it all over, leaving out the materials Microsoft objected to.

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