Groklaw

Week 2, Day 9 of SCO v. Novell Trial - Jury Hears About Kimball's Rulings and Botosan - Updated

Thu, 18 Mar 2010 14:49:00 -0400

Chris Brown's first report of the day is in, filed by phone during an extended break in the court session. The jury got to hear today about Judge Dale Kimball's earlier court rulings.

We have all the important rulings in a new, special section on Groklaw's Novell Timeline page, so you can follow along. But for speed, here's the 2004 ruling and the 2007 ruling that his report references and that the jury heard excerpts from or a summary about today.

Update: Hey, look at this, a new searchable database, CourtWeb where you can search full text of court rulings for free. Not every order is in there, but eventually I hope they will be. I see Google seems to be in this project. I want to say thank you. Be sure to choose to expand to 100 documents, if you are searching for SCO Group. This is exciting.

New Proposed Jury Instructions and Novell Tries Again on Prior Ct. Rulings

Thu, 18 Mar 2010 09:56:02 -0400

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.

Week 2, Day 8 of SCO v. Novell Trial - McBride's Admission and Pisano, Botosan - Updated

Wed, 17 Mar 2010 20:53:00 -0400

Our reporter from the courtroom in the SCO v. Novell jury trial, Chris Brown, has now filed his first reports for today, and I'll add to them as his further reports arrive.

Today saw the finishing up of Darl McBride's testimony and the judge issued rulings on the various motions filed by the parties. But the big news is that Darl McBride has now admitted on the stand that SCO didn't need copyrights to run their Unix business. They need them only to run SCOsource. That is a huge admission, one which undercuts one of SCO's experts, and particularly undercuts SCO's interpretation of the APA and Amendment 2. Why? Because in 1995 and 1996, when those two documents were negotiated and executed, there was no such SCOsource program nor any thought of ever having one. He may be called back to the stand.

We also learn from an exhibit that HP decided not to take a SCOsource license in part because purchasing a license would be the equivalent of supporting terrorism. And then the SCO experts began to testify, beginning with Dr. Gary Pisano. Also, note that the final report from yesterday's session is now posted there.

SCO's Motion to Allow Testimony

Wed, 17 Mar 2010 14:42:57 -0400

Yesterday, there was a sidebar discussion about allowing in material regarding why customers chose not to sign up for SCOsource. The judge found a case that he thought was definitive, so it was not allowed in. Today, SCO has filed a motion to allow the testimony that the judge ruled inadmissible, and there is also a letter from Brent Hatch, with the testimony SCO wishes to show the jury attached.

Novell Anticipates Objections to SCO's Experts' Testimonies - The TK-7 Case

Wed, 17 Mar 2010 12:38:43 -0400

Novell anticipates certain questions SCO is likely to ask two of its experts, and rather than having long sidebars, which the judge has already said he doesn't like, they have filed objections they figure they'll be raising, along with a new case that supports their position, TK-7 Corp. v. Estate of Barbouti. This way things can be hashed out in advance.

Novell has found this 10th Circuit case, TK-7, that indicates that Dr. Gary Pisano ought not to be allowed to use the Yankee Group study's numbers as the basis for his opinions, since he didn't look into the methodology. And yes, on the basis of this new case, Novell respectfully says that Judge Ted Stewart's denial of Novell's earlier Daubert motion was in error:

The Yankee Group survey is hearsay, and SCO should not be permitted to dress it up and introduce it as Dr. Pisano's unexamined and untestable opinion.

They have, in short, painted the judge into a corner, and he will either have to follow case law, or he'll have to find a newer case that contradicts the one Novell has found. Judges are supposed to be bound by case law, with a bit of wiggle room. The judge denied the motion without the benefit of this case, which Novell says, "requires a different result." This case is dynamite. Whoever found it fell asleep grinning.

Week 2, Day 7 of SCO v. Novell Trial - More McBride and Botosan Opens a Door - Updated

Tue, 16 Mar 2010 20:20:00 -0400

Chris Brown was in the courtroom for us today. It was all Darl McBride today, and there also was some sparring over SCO expert, Christine Botosan, he reports. It looks like the jury will be hearing about Judge Dale Kimball's ruling after all, because Novell intends to ask her about what happened to the stock when he issued his rulings.

And there will be more Darl tomorrow. Also Novell has filed its opposition to SCO introducing IBM materials, as they asked to yesterday.

Novell files Offer of Proof Re Prior Inconsistent Declaration of Sabbath

Tue, 16 Mar 2010 07:49:00 -0400

Novell has filed a Notice of Filing of Offer of Proof Regarding Prior Inconsistent Declaration of Steven Sabbath. It is making a record that SCO was allowed to present testimony in direct examination that Novell knew was contradicted by deposition testimony, but then Novell couldn't tell the jury about it, because of rulings by the judge.

I gather Novell has noticed what you have, that the judge's ruling was not fair to Novell.So they are making a record, listing very thoroughly why the deposition is allowable under the rules, how they would have used it to rebut SCO's witnesses, and precisely how the materials are contradictory. This may be related to the discussion we heard about yesterday, where it was discussed if Ms. Madsen would have to return. It surely will be part of any appeal, should it prove necessary. But the judge can simply change his ruling, solving the issue.

Week 2, Day 6 of SCO v. Novell Trial - The Mistrial Motion, Kim Madsen, Steve Sabbath, Darl McBride - Updated

Mon, 15 Mar 2010 21:44:00 -0400

Chris Brown attended the jury trial today for us in SCO v. Novell, and he has the details about the mistrial motion, the denial of the motion to allow evidence, and there was testimony today from Kim Madsen and Darl McBride and a deposition played of Steven Sabbath. The mistrial was related to the denial of Novell's motion to allow evidence. The judge said what SCO told the jury was inappropriate, and he merely warned SCO not to go "close to the line again." I'm sure SCO will mend its ways immediately.

Judge Denies 2 Novell Motions: for Mistrial and to Allow Evidence

Mon, 15 Mar 2010 20:12:39 -0400

It seems Novell moved for mistrial on March 15 at the trial in SCO v. Novell. And there has been a decision on Novell's motion to allow evidence. The docket doesn't yet reflect the order on the motion to allow evidence, but you can see that it happened in this, the full text of the order on the oral motion by Novell for a mistrial:

This matter is before the Court on Defendant's Motion for Mistrial, made orally on March 15, 2010. For the same reasons stated in denying Defendant's Motion to Allow Evidence Responding to SCO's Allegation that Novell's Slander Continues "To This Very Day," Defendant's Motion for Mistrial is DENIED.

As soon as we have the order providing "the same reasons, I'll update this article.

SCO Responds to Novell's Motion to Allow Evidence

Mon, 15 Mar 2010 12:58:00 -0400

On Friday, at the trial in SCO v. Novell, SCO told the judge that they'd file their response to Novell's Motion to Allow Evidence on Monday. And so they have:

Novell seeks to present evidence to the jury in the form of snippets of text selectively lifted from prior judicial opinions in this case. Novell claims these snippets would be used to rebut the factually correct assertion, made in SCO's opening statement and the answer of one witness to a single question, that Novell's claim of ownership of the UNIX and UnixWare copyrights continues to appear on Novell's website "to this very day." As with Novell's previous attempts to introduce such evidence, the Court should reject this attempt to present the jury with judicial statements, not in context, that are not relevant to the claims and defenses presented here, but that would create jury confusion and be highly prejudicial to SCO.

Wait. That's not how we remember it. We remember SCO saying not just that the claim of *ownership* continued to this day; they said that the *slander* continued to this very day. From the transcript [PDF]:

So this is a campaign of slander, broadcast and repeated to the world that continues to this very day....
And to this day Novell, on their web site, continues to republish that slander.

You gotta watch the Boies Boyz, my friends, with a very close eye. They could talk a bird out of a tree before he realizes there is no worm.

Novell's Petition for Writ of Certiorari - as text

Sat, 13 Mar 2010 18:02:15 -0500

We have Novell's Petition for a Writ of Certiorari [PDF] as text. This is its petition, asking the US Supreme Court to review the decision by the US Court of the Appeals for the Tenth Circuit.

Here are the two orders that the appeals court reviewed, Judge Dale Kimball's August 10, 2007 Memorandum and Order and the November 20, 2008 Final Judgment. Odds are always against the petitioner to the U.S. Supreme Court, of course, and the earliest it could be heard would be in April, we learned from a remark at Friday's trial in SCO v. Novell, so the trial will be over before this is heard, even if it beats the odds. Here are the rules [PDF] of the U.S. Supreme Court, and Rule 10 tells what kinds of cases they are more inclined to accept.

Nevertheless, it's an important document, because it raises an important question: how should copyright transfers be evidenced? US Copyright law requires a writing, but what should happen if the writing isn't clear about which copyrights, if any, were conveyed? Should it be up to a jury to decide and more or less make it up out of the memories of participants of yore?

You think I jest. Not at all. That is exactly what is happening in SCO v. Novell currently in the trial. How would you like to have your copyright ownership decided like that? Still want to if the memories relied upon are those of Darl McBride and his friends and allies?

Monday's Bankruptcy Hearing Rescheduled for April 7 at 3 PM

Sat, 13 Mar 2010 15:22:32 -0500

The hearing on the motion to approve the sale of SCO's mobility products to Darl McBride, exCEO of SCO, has been rescheduled. So don't show up, if you were planning to on Monday. It is now set for April 7th at 3:00 PM Delaware time, unless there are no objections and no competing offers, in which case the judge can just sign off on it.

Day 5 of the SCO v. Novell Trial and Some Help for Journalists - Mattingly and Broderick - Updated

Fri, 12 Mar 2010 20:32:00 -0500

One of our reporters in the courtroom today, bprice, has sent his first dispatch. More to come. He had a pleasant chat with Tom Harvey of the Salt Lake Tribune. And in the trial itself, there was testimony from Bill Broderick again, then Ty Mattingly.

Here's Ty Mattingly's deposition [PDF], Exhibit 9 in the collection. And here's William Broderick's declaration [PDF], Exhibit 15 in that collection of exhibits.

Blake Stowell Email to Maureen O'Gara: "I Need You to Send a Jab PJ's Way"

Fri, 12 Mar 2010 15:01:00 -0500

So. Now I know. Now we all know.

Blake Stowell, then the PR guy for SCO, sent an email to Maureen O'Gara, saying "I need you to send a jab PJ's way," and then right afterwards she wrote that invasive so-called expose, in which she revealed, or at least intended to reveal, things like who I called on my phone. A la the HP scandal. She got fired for doing it the way she did, and the then-publisher apologized to me publicly, but she says in the deposition she's not sorry a bit.

We learn this by reading excerpts from her deposition, previously under seal, attached to a letter [PDF] SCO's attorney sent to the court. SCO doesn't want the part of her deposition video played where she talks about me and Groklaw. It's beyond eye-opening, however, despite her pretense, as I see it, that there is no connection between the two events.

They also don't want the part about an email she sent to SCO, subject line, "I want war pay," played. It's allegedly humor. Just chatter. But you know, she is on the list of people SCO owes money to, now that I think of it, filed in connection with the bankruptcy. I wonder for what?

Novell's Motion to Allow Evidence: SCO Opened the Door

Fri, 12 Mar 2010 10:14:57 -0500

Yesterday, at the end of the day at the trial of SCO v. Novell, there was a discussion of whether certain evidence could be let in after all, due to something SCO said. Judge Ted Stewart asked Novell to put it in the form of a motion, and they have.

SCO accused Novell in its opening argument four times of slander of title "to this very day". And in questioning Duff Thompson yesterday, the lawyer asked him if he saw evidence of slander of title to the present, and he said yes. It indicates a desire for damages covering the entire time period.

However, Novell points out that prior rulings by this court and the appeals court found that Novell was in fact the owner of the copyrights, among other things, and Novell thinks it is grossly unfair that it can't be allowed to mention those salient facts to the jury, if the judge is going to allow SCO to claim damages "to this day":

In view of the foregoing, the Court should permit Novell to introduce evidence that Novell's representatives acted with knowledge of the following three facts:
1. Judge Kimball ruled on August 9, 2004, that "the APA did not transfer any copyrights" and "the agreements raise substantial doubt as to whether the APA as amended by Amendment No. 2 qualifies as a [17 U.S.C.] Section 204(a) writing";
2. Judge Kimball ruled on August 7, 2007 that "Novell is the owner of the UNIX and UnixWare copyrights"; and
3. The Tenth Circuit recognized on August 24, 2009 that "Novell has powerful arguments to support its version of the transaction."

SCO's attorney Stuart Singer may have gotten carried away with his theatrical indignation. And when a party slips like this, what lawyers call opening the door, it can indeed have consequences. Novell was just waiting for a moment like this.

Day 4 of the Trial in SCO v. Novell - Novell's Petition for Certiorari - Updated 5Xs - Messman, Levine, Mohan, Michaels, Wilt

Thu, 11 Mar 2010 20:11:00 -0500

They played videos in court today, day 4 of SCO v. Novell's jury trial. SCO claims it has a surprise witness, like that surprises anyone that has been following SCO's legal ways. There was a dispute about that, but I gather it will happen eventually. And Novell has filed its notice that it has filed its Petition for Writ of Certiorari with the Supreme Court, asking them to take a look at what the Appeals Court did. We have the document now for you as well.

Update 4: With all the reports now in, what happened today in court becomes clearer: SCO continued its presentation, with video depositions played, of Jack Messman, Doug Michaels, Burt Levine, Jim Wilt, Alok Mohan, and some live testimony by Bill Broderick. And the surprise witness looks like it will be one of the lawyers who drew up the APA, perhaps Aaron Alter, who you may recall worked on the same team as Tor Braham, but Braham was the lead attorney for Wilson Sonsini. He will be testifying for Novell. As you noticed in opening argument, Novell pointed out they had lawyers who drafted both the APA and Amendment 2, and SCO had no lawyers to testify for them. So I gather SCO would like to remedy that. However, it's not certain. One witness thinks the name mentioned was Troy Keller.

Updating the Mozilla Public License

Thu, 11 Mar 2010 11:07:09 -0500

Mozilla is updating its license, and you can participate, just as you did in the GPLv3 updating process. It'll be going on for a while, until the end of 2010, in monthly stages, and each part of the schedule will only last one month, so I'm letting you know now, even though we are all riveted to Utah and the trial at the moment, so you can begin to think about it and maybe make use of intermissions in the Utah story.

Day 3 of the Trial, Through the Eyes of Groklaw and the SL Tribune - Thompson and Chatlos

Wed, 10 Mar 2010 23:59:51 -0500

Here's what the Salt Lake Tribune reports happened today at the SCO v. Novell trial, all of which it records as if it were all so. Let's see if it is, by comparing what is reported about the testimony with what we already know. Part of what Groklaw does is insist on checking facts. So, let's do that. And then I'll share with you what our reporter there today has to say.

Volunteer Needed for Thursday Trial Coverage

Wed, 10 Mar 2010 16:52:17 -0500

Our scheduled reporter for Thursday and Friday is still a flu patient, and so we do need someone to cover Thursday's SCO v. Novell trial. If you can, please email me and I'll give you instructions. Trust me, you'll have fun. And the rest of us will be so grateful. Thanks!

Update: I'm just learning that the two reporters scheduled for today couldn't go after all. Medical issues. So hit the Paypal button, y'all. We'll order a daily transcript so I can at least tell you about what happened. It'll take a while to get it, so stay tuned, but no need to refresh every ten minutes or anything.

Jonathan Schwartz: What He Couldn't Say (on Patents, OpenOffice, and Bill Gates)

Tue, 09 Mar 2010 20:32:07 -0500

I know we are all riveted on Utah today, but take a moment, please, because this is important. Jonathan Schwartz, formerly CEO of Sun, has a personal blog, What I Couldn't Say ..., where he has begun to tell us what he couldn't tell us before about events during his tenure there. He has a interesting tale to tell about Bill Gates and Steve Ballmer asking Sun to pay patent royalties to Microsoft on ... OpenOffice.

Day 2 of the SCO v. Novell Trial - Opening argument - Updated Repeatedly - 1st Witness, Frankenberg

Tue, 09 Mar 2010 18:14:00 -0500

Would it surprise you to find out that it turns out that apparently one of the jurors might be related to one of SCO's prior corporate officers? At any rate they have the same last name, and Salt Lake City is a big place, so perhaps not. Novell noticed the similarity in names, according to our reporter today, MSS2, only after jury selection was over.

MSS2 has just sent me his first report of day 2 of the jury trial in SCO v. Novell, with more to come. Today was opening arguments by both sides. And we have lots more goodies for you from two eyewitnesses, MSS2 and Tilendor. We begin with SCO's opening argument by Stuart Singer. All I can say after reading it is maybe you needed to be there. Or SCO must be a slow learner or Mr. Singer never reads Groklaw, or ... well, see what you think.

More Back-and-Forth on Proposed Jury Instructions/Verdict Forms in SCO v. Novell

Tue, 09 Mar 2010 12:30:00 -0500

The parties are still going back and forth over pre-trial issues, specifically over the jury instructions and the verdict form. We may see even more on this, because jury instruction and the verdict form come at the very end, so there is still time to try to get it just right. Not that either side will be entirely happy with the result. SCO, of course, wants the last word.

But in truth, the wording of these documents does matter a lot, so it's typical to have quite a lot of discussion on exactly how to phrase things. After all, when the jury is deciding, they will be reading that wording, and going over it with a fine-tooth comb on any issues where they don't immediately agree, most likely. You've seen what a mess the unclear wording in the appeals court ruling created, so imagine if the jury were to be confused into thinking they *have* to rule a certain way if they actually don't, based on a misreading of an unclear phrase.

I thought it was funny yesterday that the parties couldn't come up with a proposed introduction to give the judge to read, so he wrote his own, and when they handed up one they'd finally been able to agree on, he decided to just use his own anyway. It was too late. I expect that incident was inspirational to both parties. And as you'll see in a minute, they are really trying on the jury instructions, with Novell putting the model instructions and both parties' competing phrasing all in one document, so the judge has it all in one place. And then Novell says SCO wants to file its own also.

Last-Minute Filings from Judge Stewart, SCO, Novell

Mon, 08 Mar 2010 16:45:00 -0500

My, if we think we're having trouble keeping up, how'd you like to be Judge Ted Stewart? Or Sterling Brennan, for that matter? So many filings already, and more today. Proposed exhibit and witness lists, a Memorandum of Authorities Regarding Excusing Potential Jurors Having Knowledge Pertaining to this Dispute -- the one I'm going to read first -- and another responding to SCO's Objection to Board Minutes and a letter from Brennan to the court. And then one more motion in limine denied. Judge Stewart has denied Novell's motion asking for a further, and broader, ruling on its already successful motion in limine #4. He views is as rearguing a point Novell lost already in the denied Request for Judicial Notice of Prior Factual Findings, and he's not going to change his mind. Of course, that's what appeals are for. And now Novell is fully positioned.

Day 1 of the Jury Trial, SCO v. Novell - Updated 2Xs - We Have a Jury

Mon, 08 Mar 2010 13:42:00 -0500

Happily, cpeterson was able to attend this morning's session.

Update: It looks like that will be all the news for today. They are keeping the public in the hall mainly, to fit all the prospective jurors in, so unless there is something unexpected, tune in tomorrow.

Also, I see questions about what's hearsay within hearsay and things like that, so here are all the Federal Rules of Civil Procedure -- meaning the rules you follow for civil trials in federal district courts, and you'll find every other kind of applicable rule linked on the Utah District Court's Rules page. There are local rules as well, and then judges have their preferences, if you recall the judge's marching orders the other day. If you dig and learn something interesting, please share it in your comments. Thanks.

Novell asks for further ruling on Motion in Limine No. 4

Sun, 07 Mar 2010 23:05:00 -0500

Novell has asked the Court to rule further on their Motion in Limine No. 4 [PDF; text]. The Court had previously issued a ruling [PDF] granting that Motion, but Novell now asks for further ruling, stating that "[t]he Court addressed this issue solely in the context of SCO's covenant of good faith claim. However, Novell's motion covered all of SCO's claims, including slander of title. The Court's prior ruling did not expressly address other claims, so Novell requests the Court to rule on the issue that was left open by its prior order."

Novell Never Mentioned UnixWare in its press releases in 2003 - Updated

Sun, 07 Mar 2010 13:41:00 -0500

SCO's Chapter 11 Trustee Edward Cahn bragged at Friday's bankruptcy hearing that he had won all the Daubert motions and most of the motions in limine in Utah. However, Judge Stewart has just reversed himself with regard to Novell's Motion in Limine No. 2 and No. 3 and has now granted them.

If you look at the chart we've prepared you can see that and if you do the math, you'll see that Novell was denied on six of its motions in limine, but it won on five, and in won in part and was denied in part on 8.

It also wouldn't be true to say that SCO won all its motions in limine. SCO was denied without prejudice on one, denied outright on another, denied in part and granted in part on one, granted on two, and one was taken under advisement. SCO did prevail in the three Daubert motions. Just setting the record straight.

In reversing himself on Novell's two motions in limine in his recent order [PDF], I think he made a mistake in describing Novell's press releases, however. It's fundamental to what exactly are the disputed copyrights. So I thought I'd take the time to explain.

We Need A Volunteer for Monday at the Trial

Sun, 07 Mar 2010 11:24:25 -0500

We need a volunteer to cover the first day of trial. Our volunteer has the flu, so it's a crisis. This will be the day they pick the jury and possibly also do the opening statements, about the most important day of the week.

Further, I don't think there will be a transcript of the jury picking, so if we don't have anyone, we'll never know what happened.

So if there is any way you can attend, this is your moment. Monday, bright and early and it ends by a little after lunch. 3/8/2010 08:30 AM in Room 142 before Judge Ted Stewart.

Please try. If you email me, I can give you more detailed instructions.

March 5 Bankruptcy Hearing Report - Updated

Sat, 06 Mar 2010 11:45:00 -0500

Here is Groklaw member RFD's report from the bankruptcy hearing from Friday March 5. His initial notes come first, followed by a more detailed report by another witness, pbk.

Update:PJ: I have had a chance now to listen to the CD, and I've taken notes to share with you. I've added them at the end. My overview: this is money they want to pay themselves, Blank Rome and the other professionals. I take it they are worried they might get stiffed. And it turns out there are 12 to 14 lenders, and we don't have all their names. It's farcical.

More filings in Novell - Updated

Sat, 06 Mar 2010 11:28:00 -0500

It's been a busy week heading up to the Novell trial in Utah, and I had an accident, which is why I've been offline. I am recovering now, and we'll have the more detailed reports from the hearing shortly. There were some additional filings on Friday and this morning, including some more decisions from Judge Stewart (we have 762 as text), and some more pre-trial filings from both sides. So while we're waiting for the trial to commence, let's get caught up.

Yarro Deal Approved

Fri, 05 Mar 2010 18:45:03 -0500

Believe it or not, here's our first report from today's bankruptcy hearing:

The bottom line is that Judge Gross found that the terms of the proposed loan are "fair, reasonable & adequate." He then signed the order. SCO plans to close on the deal on Monday