Groklaw - Declaration of Edward Normand, with exhibits (O'Gara Deposition and McBride Declaration)

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Declaration of Edward Normand, with exhibits (O'Gara Deposition and McBride Declaration)

Wednesday, April 11 2007 @ 08:35 AM EDT

I told you that the story about Chris Stone made no sense. Now we get the rest of the story. There is now a Declaration of Edward Normand [PDF], with tons of exhibits and declarations and snips of depositions listed and attached, including a snip of Maureen O'Gara's deposition and Darl McBride's Declaration. This is all in support of SCO's Motion for Partial Summary Judgment on its First, Second and Fifth Causes of Action and for summary judgment on Novell's First Counterclaim.

McBride's Declaration certainly gives us a window into his soul, as they say. I think he didn't learn the lesson from Thumper in Bambi and needs to see the movie again, because he has something bad to say about everyone he talks about. Slur, slur, and more slur, as you will see.

Here are all the exhibits, and you will see some are grouped together into one:

Exhibit 1
Exhibit 1, part 2
Exhibit 1, part 3
Exhibit 1, part 4
Exhibit 2-9
Exhibit 10-20
Exhibit 21-27
Exhibit 28-31
Exhibit 32-34
Exhibit 35
Exhibit 35 part 2
Exhibit 36-41

I will put a list of what they all are at the end.

As for Ms. O'Gara's testimony, Exhibit 29, it turns out that she reported on what she *thought* Stone meant by the little he said. Oh, brother. She says he said Novell was going to assert its ownership of copyrights the same day SCO announced its earnings, and all the rest is her interpretation of what she thought that might mean. He never said, according to her testimony, that it was motivated by a desire to harm SCO or effect the stock. She decided that "logically" that must be what he meant. "Logically, there wouldn't be any other reason," she tells the lawyers. Well, how about Novell wanted to make sure the press noticed the story and so figured that would be a good day? That is just one conceivable and perfectly logical reason I gather she was unable to imagine.

Here's how SCO used this testimony in its motion:

SCO has now brought to light evidence of Novell's motives for suddenly claming ownership of the copyrights starting in late May 2003. Maureen O'Gara, a journalist covering the computer industry since 1972, recently testified that then Novell Vice Chairman Chris Stone conveyed to her, with "laughter," that Novell was timing its ownership claims to coincide with SCO's earnings report in order to "confound SCO's stock position" and "upset the stock price."

Get it? "Conveyed to her" is not the same thing as "said to her." The lawyers thus show that they know the difference, but they hope we don't. They are speaking like used car salesmen. It's literally sort of true, if you carefully notice the wording and parse it all out carefully to find the truth, but it's certainly misleading to the average listener. Here are the exact words from the deposition:

Q: What did Mr. Stone tell you about Novell's public announcement in which it was going to assert its purported ownership of the UNIX copyrights?
O'Gara: Well, he informed me of the substance of what this story is about, that they were going to, what's the right word, assert their ownership.
Q: Did he say anything about the reasons why they were issuing that announcement on that date?
O'Gara: Yes, he did.
Q: And what did he say?
O'Gara: He said they were doing it because SCO's earnings were that day.
Q: And did he say anything about the effect, the intended effect of the announcement on that date?
O'Gara: The reason they were doing it, as I understood it, was to confound SCO's stock position.
Q: When you say confound SCO's stock position, can you be a little more specific or can you clarify it in any way?
O'Gara: Well, I think the object of the game was to throw a monkey wrench into the works....They were trying to upset the stock price....
Q: Did Mr. Stone say anything about harming SCO?...
O'Gara: Logically, there wouldn't be any other reason.

In short, she divined it, concluded it, without him ever saying it at all. And do you see anything about him laughing in this snip? I don't either. Just smarmy stuff. Why am I not surprised?

Now to Exhibit 37, the Declaration of Darl McBride. Here are the relevant snips I found fascinating:

17. In the midst of these communications with Novell regarding our respective rights to enforce and terminate the licensing agreement, SCO was attempting to negotiate with IBM rgarding their disclosures of protected UNIX technology to the Linux community. In early 2003, SCO began to discover IBM had disclosed proprietary UNIX technology to Linux. Through a series of calls, letters, and meetings, I and other SCO representatives tried in good faith to reach an agreement with IBM to protect the integrity of our intellectual property.
18. In early March 2003, I received a call from Tony Befi.... He asked me if it was true, and if SCO was planning to sue IBM.... Mr. Befi ... sought a meeting....
20. On June 2, 2003, I attended a meeting with counsel for SCO and representatives and counsel for IBM. SCO had a presentation prepared which identified specific examples of AIX and Dynix technology that we had discovered in Linux....I recall that the AIX Journaling File System and the AIX enterprise volume management system were identified as two technologies that had been disclosed to the Linux community. I also remember the emphasis in the presentation on the disclosure of methods and concepts derived from the Unix System V to the Linux community.
21. During the meeting, IBM representatives showed very little interest in what we were saying.

That should have been his clue. He goes on to stick it to Sam Palmisano, claiming he offered to pay SCO off secretly, and BayStar, which he calls a "difficult partner". He says Larry Goldfarb made "constant complaints regarding SCO's business and litigation strategies... " He then says ... You know what? Read that slur for yourself. I don't want it on my keyboard. He attacks the reputations of some others, and then this nugget: SCO, he says, never intended to "wage legal warfare" on Linux. That line alone ought to put you on guard as to the truthfulness of the rest of the contents. Here's how he ends:

36. Finally, I understand that IBM accuses SCO of intentionally obfuscating evidence in this litigation for strategic purposes. It was never SCO's purpose or strategy, intent or desire to obfuscate evidence in this case in any way.

Mwahahahah. They didn't obfuscate it. They just withheld it until it was too late for IBM and its experts to do discovery. And I believe it was Judge Wells who accused them of hiding what they had so as to have an unfair advantage. The last sentence:

38. SCO did not publicly disclose that code it had identified in 2003 because the company believed that code had to be kept confidential and could not be disclosed without a nondisclosure agreement.

How about in 2005, in court? No? Too soon?

And this is all declared under penalty of perjury. How do these folks sleep at night?

Here's the complete list of exhibits by number:

1 Asset Purchase Agreement between The Santa Cruz Operation, Inc. and Novell, Inc., dated September 19, 1995
2 Amendment No. 1 to Asset Purchase Agreement, dated December 6, 1995
3 Asset Purchase Agreement Bill of Sale, dated December 6, 1995
4 Technology License Agreement, dated December 6, 1995
5 Amendment No. 2 to the Asset Purchase Agreement, dated October 16, 1996
6 Alok Mohan Deposition Transcript, dated February 7, 2007
7 Robert Frankenberg Deposition Transcript, dated February 10, 2007
8 Joint Press Release, dated September 20, 1995
9 Ty Mattingly Deposition Transcript, dated January 19, 2007
10 Declaration of Duff Thompson, dated November 9, 2006
11 Duff Thompson Deposition Transcript, dated February 9, 2007
12 Declaration of Ed Chatlos, dated October 1, 2004
13 Ed Chatlos Deposition Transcript, dated March 22, 2007
14 Burt Levine Deposition Transcript, dated March 23, 2007
15 Declaration of William Broderick, dated December 11, 2006
16 William Broderick Deposition Transcript, dated February 1, 2007
17 Declaration of Doug Michels, dated November 9, 2006
18 Doug Michels Deposition Transcript, dated March 28, 2007
19 Declaration of Jim Wilt, dated November 23, 2004
20 Jim Wilt Deposition Transcript, dated January 26, 2007
21 Declaration of Kim Madsen, dated December 11, 2006
22 Kim Madsen Deposition Transcript, dated February 13, 2007
23 Copyright Registration Number TXU 510 028
24 Copyright Registration Number TXU 516 704
25 Copyright Registration Number TXU 516 705
26 Declaration of Jay Petersen (Copyright Notices), dated November 10, 2006
27 SCO UnixWare 2.1 CD Case
28 SCO UnixWare 2.1.3 Update CD Case
29 Maureen O’Gara Deposition Transcript, dated March 23, 2007
30 Vertical Solution Agreement between The Santa Cruz Operation, Inc. and Integration Design
31 SCO UnixWare OEM Reseller Source for Support Agreement, dated May 20, 1997
32 The Santa Cruz Operation, Inc., and Samsung Electronics Co. Ltd., Software Agreement F-SOFT-347
33 Declaration of William Broderick, dated November 7, 2006
34 Declaration of John Maciaszek, dated November 9, 2006
35 Second Amended Complaint, SCO v. IBM, Case No. 03-0294
36 Letter from J. Messman to D. McBride re: SCO’s “Letter to Linux Customers”, dated May 28, 2003
37 Declaration of Darl McBride, dated November 10, 2006
38 Novell Press Release: “Novell Statement on SCO Contract Amendment,” dated June 6, 2003
39 Gregory Jones Deposition Transcript, dated January 26, 2007
40 Joseph LaSala Deposition Transcript, dated February 8, 2007
41 Jack Messman Deposition Transcript, dated February 7, 2007

Declaration of Edward Normand, with exhibits (O'Gara Deposition and McBride Declaration) | 452 comments | Create New Account

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Corrections thread

Authored by: hardmath on Wednesday, April 11 2007 @ 08:52 AM EDT

Should any be necessary.

--hm

---
"It's time to get it on!" -- Darl McBride (March 1, 2007),
arguing that SCO's investment in litigation means
their stock is undervalued in the market