PACER shows a new filing by The SCO Group in the IBM litigation, a declaration by Brent Hatch [PDF] along with an exhibit [PDF] containing a portion of the February 16, 2007 deposition of Lawrence Bouffard in the Novell case.
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Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[Address]
[Telephone]
[Facsimile]
Stuart H. Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[Address]
[Telephone]
[Facsimile]
Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[Address]
[Telephone]
[Facsimile]
Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[Address]
[Telephone]
[Facsimile]
Attorneys for The SCO Group, Inc.
IN THE UNITED STATES DISTRICT
COURT
FOR THE DISTRICT OF UTAH
THE SCO GROUP, INC.
Plaintiff / Counterclaim-Defendant,
v.
INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Defendant/Counterclaim-Plaintiff. |
SUPPLEMENTAL DECLARATION
OF BRENT O. HATCH
Case No. 2:03CV0294DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C . Wells
|
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I, Brent O. Hatch, declare as follows:
1. I am a citizen of the United States, am over the age of 21, and am competent to
testify to the matters set forth herein.
2. I am an attorney at law duly licensed to practice before all the Courts of the State
of Utah, and an attorney with the firm Hatch, James & Dodge, P.C., and counsel for The SCO
Group, Inc. ("SCO") in the lawsuit against International Business Machines Corporation
("IBM"), titled The SCO Group, Inc. v. International Business Machines Corporation, Civil No.
2:03CV-0294 DAK (D. Utah 2003).
3. This Supplemental Declaration is submitted in support of Plaintiff/Counterclaim-
Defendant SCO's various motions for summary judgment.
4. Submitted herewith as Exhibit 389 is a true and correct copy of excerpts from the
February 16, 2007 deposition of Lawrence Bouffard in the litigation titled The SCO Group, Inc.
v. Novell, Inc., Civil No. 2:04CV00139 DAK (D. Utah 2004).
I declare under the penalty of perjury that the foregoing is true and correct.
Executed this 28th day of February 2007.
Salt Lake City, Utah
/s/ Brent O. Hatch
Brent O. Hatch
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CERTIFICATE OF SERVICE
Plaintiff/Counterclaim-Defendant, The SCO Group, Inc., certifies that a true and
correct copy of the foregoing was served on Defendant/Counterclaim-Plaintiff, International Business
Machines Corporation, on this 28th day of February, 2007, via CM/ECF to the following:
David Marriott, Esq. ([email address])
Cravath, Swaine & Moore
[address]
Todd Shaughnessy, Esq. ([email address])
Snell & Wilmer LLP
[address]
/s/ Brent O. Hatch
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EXHIBIT 389
1
Deposition of LAWRENCE BOUFFARD
Date:February 16, 2007
Volume: 1
Case: SCO v. NOVELL
SHARI MOSS & ASSOCIATES
[address]
[phone]
[fax]
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Page 57
BY MR. JACOBS:
Q. Let's break it down a little bit.
Do you see that, first of all, Exhibit 61 is
a declaration that you executed on November 10th,
2003?
A. I do.
Q. And you see that you'd executed it under penalty of perjury?
A. I do.
Q. And you understood what "penalty of perjury"
meant when you executed it?
A. I did.
Q. You understood this was a serious --
executing this was a serious matter?
MR NORMAND: Objection to form.
THE WITNESS: I did.
BY MR. JACOBS:
Q. And at the time you executed it, you studied
it, and, to the best of your knowledge and belief at
the time, it represented your understanding?
MR. NORMAND: Objection to form.
THE WITNESS: It was not written by me. You know how these
things go. It was provided to me, and I was asked, "Is this an accurate representation of
what you said when you met with us?"
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Page 58
The first go-round, there were several sections that were completely objectionable and
wrong. Actually, they didn't reflect what I said,
and it was clear that it was trying to get me to say
something that they wanted to hear.
So I didn't sign it the first go-round, I
sent it back to them. And they said, "Well, which
paragraphs do you have a problem with?" And I told them.
I got another draft, and it still was not
what I had said. So I asked them to strike some
things, I believe they did, and then we went back and
forth a few times.
By the last time reading over it, I read it
over at that point a little weary of it from the
standpoint of, "well, I guess you could interpret
what I said that way." Because that's what I was
being asked to do: Did we interpret you that way.
It's not really a statement of my words.
And I understand they never really are -- well, not
never. It's only a couple of times I've done this. But
this was particularly difficult working with them,
trying to get it to be how I would characterize
things. It became a negotiation of my words rather
than a document of my own words.
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Page 59
BY MR. JACOBS:
Q. Why did you sign it?
A. I signed it -- I said, "Well, I guess you
could interpret what I said that way. There are some
things that I would have said differently." But at
that point, I just got kind of tired of the process,
and I said that's, you know, close enough.
Q. Close enough that you were comfortable
signing it under penalty of perjury that it was
true and correct?
MR. NORMAND: Objection to form.
THE WITNESS: Correct.
BY MR. JACOBS:
Q. If you skip ahead in the document -- it
looks like it's about a third of the way through --
you'll come to the Asset Purchase Agreement. It's
after the last of the UNIX licensing documents that
are attached to the agreement.
The next document. Let me give you a clip
to make it easier.
So this is, in fact, what you understood to
be the Asset Purchase Agreement when you executed the
declaration?
A. Yes.
Q. And what you understood to be an Asset
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time is 1:56.
EXAMINATION
BY MR. NORMAND:
Q. Good afternoon, Mr. Bouffard.
A. Good afternoon.
Q. Towards the end of his questions, Mr. Jacobs
referred to a second declaration that you executed.
Do you recall that?
A. Yes, I do.
MR. NORMAND: I want to mark that declaration as an exhibit. And it's been marked as Exhibit 1060.
(Plaintiff/Counterclaim-Defendant's Exhibit
No. 1060 was marked for identification.)
BY MR. NORMAND:
Q. The signature line of the declaration is
dated November 8th, 2006, with your signature.
Did you execute this document on that date?
A. Yes, I did.
Q. And this was the declaration you executed
after the process that you described to Mr. Jacobs
earlier; is that right?
A. That's correct.
Q. How did that process compare to the process
by which you executed your IBM declaration?
A. This process was much more friendly, less
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Page 121
adversarial, and did not seem to have an overt agenda
to establish certain points.
Q. Have you had occasion to read Exhibit 1060
in the recent past?
A. Yes, I have.
Q. Is there any language in the exhibit that
does not reflect your -- doesn't accurately reflect
your views of the issues that are addressed therein?
A. I don't believe so.
Q. I wanted to direct your attention,
Mr. Bouffard, to paragraph 29.
A. Okay.
Q. You see in the first paragraph, "Although I
did not negotiate the 1995 Asset Purchase Agreement
APA for Novell, I had an understanding of the
transaction given my job responsibilities at the
time, which involved selling UNIX products. My
understanding was that Novell sold its UNIX business
to Santa Cruz lock, stock and barrel, and Novell only
retained the right to continue receiving binary
royalties paid by then-existing UNIX licensees for
their distribution of binary products based on their
UNIX flavor pursuant to their UNIX sublicensing
agreements (the binary royalty stream)." End quote.
Do you see that paragraph?
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