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Novell Responds to SCO's Objections to its Bill of Costs
Wednesday, September 08 2010 @ 10:55 AM EDT

Novell has responded to SCO's Objections to Novell's Bill of Costs for the two trials. Novell did not fail to notice and point out to the court SCO's cheeky move, asking that the court deny the entire bill, when some of it was costs from the first Utah trial that had already been authorized by the court:
SCO objects to $2,914.74 in costs for folders and binders, which were part of the copy costs. Rather than further dispute entitlement to such costs, Novell withdraws its request for them. However, SCO's assertion that because Novell failed to disaggregate these costs, the Court should "deny Novell's Bill of Costs in its entirety," is absurd. (Objections to Bill of Costs at 7.) Novell's Bill of Costs contains several entries that are not even addressed in SCO's Objections, not the least of which is $99,639.09 in costs that were previously awarded by the Court following the initial bench trial and simply have never been paid by SCO.
After the first trial, SCO objected to Novell's Bill of Costs, got it reduced, and then, despite the court ordering SCO to pay it, never did so. Now they ask that the court toss the bill overboard. Like I say, cheeky. I'm a little shocked that SCO's Chapter 11 Trustee Edward Cahn would allow such a request. SCO seems to show no sense of honor at all about its debts.

Here's the filing:

09/07/2010 - 891 - RESPONSE re 890 Objections, to Bill of Costs filed by Counter Claimant Novell, Inc., Defendant Novell, Inc.. (Brennan, Sterling) (Entered: 09/07/2010)

Novell has also withdrawn its request for $21,036 in mock trial graphics costs "but respectfully requests that the Court reject the remainder of SCO's challenges to Novell's request for costs."

But it points out to the court another slippery move by SCO:

1. Trial technician fees. SCO challenges Novell's request for trial presenter fees and graphics presentation costs, arguing that these costs are not authorized by the statute, were not reasonably necessary, are unreasonably high, and were not approved by the Court before being incurred. (Objections to Bill of Costs at 3.)

As a preliminary matter, SCO misleadingly merges trial presenter fees and graphics fees into a heading of its own creation, "Professional Services Costs," so that its citation of Pehr v. Rubbermaid, Inc., 196 F.R.D. 404, 408 (D. Kansas), addressing "professional services rendered," appears on-point. (Id.) But, Pehr involved an attempt to recover costs for prior art searches. The costs that are at issue here are properly classified as exemplification services, which are explicitly authorized by statute and interpreting case law as recoverable. See 28 U.S.C. Section 1920(4) (allowing recovery of costs for exemplification); Battenfeld of Am. Holding Co. v. Baird, Kurtz & Dobson, 196 F.R.D. 613, 616 n.4 (D. Kan. 2000) ("'Exemplification' has been interpreted to embrace all manner of demonstrative exhibits, including ... graphic aids.").

Both parties used trial technicians in this case (SCO, a Mr. Michael Calvin; and Novell, a Mr. Thomas Lee), making it odd and surprising for SCO to protest that such services are unnecessary. In a complicated case such as this one, with 11 witnesses presented via deposition testimony and roughly 170 exhibits introduced to the jury, a trial presenter or trial technician is particularly necessary to efficiently present the voluminous information to the jury..."

I am very glad to see Novell spelling out each and every underhanded trick, frankly, so there is a public record of how Boies Schiller has represented SCO. Sterling Brennan for Novell doesn't mind a bit taking the time to check the case law, so he catches them all, and Boies Schiller's style really does depend on the other side not bothering. Mr. Brennan bothers. Some lawyers are really good at details, and some are good at taking complex facts and telling them as a simple story, and Mr. Brennan is exceptional at both. No doubt that is part of why Novell prevailed, the other part being that Novell deserved to win.

Do you remember SCO objected to the copying costs too? Novell answers:

Novell's Bill of Costs indicates that the documents at issue were copied and bound for use at trial. As the Court is aware, this case has been pending for more than six years and the litigation has generated a large amount of documents. With only a single exception, all of the copies for which Novell seeks recovery were made during the two weeks preceding the trial or during the trial itself. Thus, these copies were made as the parties were heavily involved in final trial preparation and trial.
As for SCO's objection that there is insufficient documentation on the in-house copy costs, Novell points out that a "party is not required to submit a bill of costs containing a description so detailed as to make it impossible to economically recover photocopying costs, rather they are required to provide the best breakdown obtainable from retained records." Merryman Excavation v. Int'l Union of Operating Eng. , 2010 U.S. Dist. LEXIS 3003, at *6-7 (N.D. Ill. Jan. 4, 2010) (internal citations and quotations omitted) (emphasis added).

In support of its copying costs, Novell provided the retained records generated by Workman Nydegger's and Morrison & Foerster's in-house tracking reports for their respective copying systems. Novell also described in its Verified Memorandum how these costs were tracked by each firm. Of course SCO knows, as Novell goes on to detail, that the costs were for a very complex litigation, with summary judgment motions, that went on ... well, it felt like forever, didn't it? So why does it raise such objections? I can't read their minds, but since they have to know they were largely nonsense, or worse, I've come to the conclusion personally that it's just how they cynically roll. But they are doing it in public, and that record will be out there forever.

So will the loss they sustained, despite every twist and turn. And Novell did it without any sleight of hand. So you see, class, despite what some of you were thinking, it pays to be honorable in a court of law.

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