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Novell's Response to SCO's Opposition to Novell's Evidentiary Objections
Wednesday, July 04 2007 @ 12:06 AM EDT

Here you go. Novell's Reponse to SCO's Opposition to Novell's Evidentiary Objections to SCO's Exhibits Submitted in Connection with Summary Judgment Motions [PDF]. In this filing, Novell makes three points:
  1. Novell's evidentiary objections are properly before the court
  2. SCO's opposition is untimely
  3. SCO's opposition is without merit

As you'll recall, SCO filed its opposition and exhibits under seal, so unless or until they file a redacted version, this is our only hint as to what its opposition was based on. And according to Novell, SCO has based its opposition on some misrepresentations to the court. SCO told the court that it objected at the May 31st and June 4th hearings to Novell's evidentiary objections and asked the court to "disregard" them as "improper".

"In fact," Novell tells the court, "SCO made no such request." Novell simply attaches what was actually said at the hearings as Appendix A and Appendix B [PDFs].

I know. You are saying, What, again?

See, this is where -- despite Stuart Singer's obvious skill at oral argument -- SCO's side always falls down. Over and over, they represent things to the court that are provably not so. That can't help their credibility with the court. Novell also says that SCO "contends that Novell's evidentiary objections should be disregarded because they were filed without leave of Court and without sufficient notice to SCO."

You'll remember that Novell filed two sets of evidentiary objections. This turns out to matter, because of the argument about timely notice, as you'll see. The first set, filed on May 15, were related to the summary judgment motions argued on May 31 and June 4, regarding Novell's 4th Claim for Relief, specifically re Section 4.16 of the APA, and SCO's 1st, 2nd and 5th Causes of Action. Then on May 29, Novell filed its second set related to evidence SCO had submitted three days after Novell filed the first objections.

1) The evidentiary objections are properly before the court: Novell points out that SCO didn't assert at the May 31st hearing, where the judge discussed the objections, that Novell's objections were untimely or that SCO needed more time to reply. Instead it addressed the substance of the objections. Ditto at the June 4 hearing, where SCO also did not object and instead addressed the merits.

Anyway, Novell says, you don't need to ask leave of the court to file objections. And it filed them in a timely manner, according to DUCivR 5-1(c), which requires that documents "pertaining to a court proceeding must be filed ...a minimum of two (2) business days before the scheduled proceeding," and so by filing on May 15, Novell actually gave more than ample notice with its first set and still complied with the second set, which are largely duplicative or similar to the first in any case. And SCO addressed the merits of Novell's brief's arguments regarding two key objections, the parol evidence rule and the hearsay rule, in its responsive brief, so it can hardly argue now that they were sprung on them too late.

Novell doesn't mention it here, but it's quite ironic that SCO would object based on timeliness, given that it filed a supplemental declaration with exhibits which was due on May 18 on May 30, the night before the hearing, after the close of normal business hours to boot, resulting in a Novell motion to strike which is still pending, based on the same DUCivR 5-1(c) rule.

2) SCO's objections are untimely: SCO has some nerve objecting to Novell's timing, since it didn't file its opposition until June 18, 14 days after the last hearing and a month plus a bit after Novell filed its first evidentiary objections. It failed to ask for leave to file a supplemental opposition, so the Court "properly took all motions under advisement at the conclusion of the hearings." SCO has offered no reason for the Court to reopen everything to allow further briefing.

3) SCO's opposition is without merit: Some of SCO's arguments were already addressed in Novell's evidentiary objections, but here are, Novell says, some new points. The only new argument SCO raises relates to evidence SCO failed to present on time.

I know. You are saying, what, again? Well, my friends, a leopard doesn't change his spots, you know.

Here's what happened this time. Novell asked in interrogatory requests for SCO to "state all facts, evidence and bases" including identification of all witnesses in support of its allegation that Novell and SCO "shared an understanding that the APA intended to and did transfer the copyrights to Santa Cruz" and that Amendment 2 was meant merely to "clarify the APA by reiterating the transfer of the copyrights." But SCO never listed three witnesses for this, Troy Keller, Sandeep Gupta, and Jay Petersen. SCO also cited documents that either had never previously been produced in discovery or that had been produced but not in connection with the particular interrogatory requests about the APA. SCO is arguing not that it complied with the discovery, but only that it made the stuff known to Novell in its summary judgment papers. Hahahaha.

SCO would like the rules to be that if you throw boxes and boxes of papers at the other side in discovery, hidden treasures can show up suddenly later in summary judgment motions, after fact discovery closes, even though you never told the other side where the treasure was hidden, despite them asking for the map to that particular treasure. It would be so nice for SCO if it worked that way, given their bent, but Novell points to the rules. Novell never had a chance to depose those three witnesses, as a result of SCO's little surprise, and so Novell didn't have an opportunity to ask about the documents.

Footnote 2 is a hoot. Novell's curled lip is showing: "SCO also relies on two cases, neither of which is applicable." What, you are saying, again?

Maybe SCO's style works if you aren't being watched closely, the way this case is. But it surely doesn't work in the glare of the Internet's spotlight, and it's something I hope someday their lawyers explain in a book or an article. Why did they do it, over and over? I've wondered sometimes too if SCO seals its filings so Groklaw can't point out such misrepresentations in a timely fashion prior to hearings. If so, it's a wasted strategy. Novell misses nothing.


  


Novell's Response to SCO's Opposition to Novell's Evidentiary Objections | 214 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
This would be a fine place for any Corrections
Authored by: nsomos on Wednesday, July 04 2007 @ 12:17 AM EDT
Post your corrections in this thread please, so
they may be easy to find. It would be helpful
if the nature of the correction were in the title.
(presuming it fits)

[ Reply to This | # ]

Off topic
Authored by: russellphoto on Wednesday, July 04 2007 @ 12:36 AM EDT
And this is a good site for off-topic threads.

Please make links clickable.

Russellphoto

[ Reply to This | # ]

SCO says whatever will get them back another day
Authored by: kawabago on Wednesday, July 04 2007 @ 12:59 AM EDT
The truth and SCO parted company the day Darl McBride cast his shadow over the
company. You might say the day the lights went out at SCO.

I don't think it really matters what SCO says anymore, the documents speak for
themselves. No one believes SCO's story anymore, everyone is just crossing t's
and dotting i's till the blade falls and the head comes off.

[ Reply to This | # ]

Novell's Response to SCO's Opposition to Novell's Evidentiary Objections
Authored by: Anonymous on Wednesday, July 04 2007 @ 01:36 AM EDT
Why do they do it? Delay. SCO's antics have successfully delayed the judge's
ruling. The judge can't rule on the PSJ's until the evidentiary motions have
been dealt with. The more crap SCO throws into the case, the longer the delay.

(IANAL)

[ Reply to This | # ]

Novell's Response to SCO's Opposition to Novell's Evidentiary Objections
Authored by: Darigaaz on Wednesday, July 04 2007 @ 01:44 AM EDT
I've wondered sometimes too if SCO seals its filings so Groklaw can't point out such misrepresentations in a timely fashion prior to hearings.
After their experience with the code they showed as "evidence" way back in the beginning, and the quick debunkings it got by ESR, Perens, Sl ashdot, and others (probably including here; I don't know for certain as I wasn't here at the time), I'm almost certain that's the reason for it. Unsealing the docs would remove any potential for FUD, because it'd be thoroughly shredded within a day or two.

---
Many eyes make all bugs shallow - not just in software, but journalism and law as well.

[ Reply to This | # ]

Novell's Response to SCO's Opposition to Novell's Evidentiary Objections
Authored by: DodgeRules on Wednesday, July 04 2007 @ 01:50 AM EDT
I've wondered sometimes too if SCO seals its filings so Groklaw can't point out such misrepresentations in a timely fashion prior to hearings. If so, it's a wasted strategy. Novell misses nothing.
OMG! Pj, I was thinking the very same thing just as I came to these final lines of your article. I'll almost bet that this statement is true as more and more they are making their filings sealed so that Novell can't get any help from Groklaw (not that they really need it.)

[ Reply to This | # ]

Why do they raise specious arguments?
Authored by: Anonymous on Wednesday, July 04 2007 @ 03:42 AM EDT
They get paid by the hour. What other reason do you need? The whole litigation
system seems to be designed for the benefit of lawyers, not for their clients,
or for justice.

[ Reply to This | # ]

Why are there no sanctions for this type of behavior?
Authored by: Anonymous on Wednesday, July 04 2007 @ 07:52 AM EDT
This scam is now in it's 5th year.

Although scox's claims are obviously merritless, scox seems to be able to drag
the proceedings out indefinitely by filing non-sense, and filing meritless,
knee-jerk, objecting to everything. Then scox objects to the response to scox's
objection, and so on, ad-nauseum.

Scox's filings, and objections are often complete non-sense, but nobody seems to
mind the obvious gaming of the system.

Doesn't the court have an obligation to sanction this sort of behavior?]

Justice delayed is justice denied.

[ Reply to This | # ]

Who determines the validity of a sealing attempt?
Authored by: Anonymous on Wednesday, July 04 2007 @ 08:23 AM EDT
PJ,

"I've wondered sometimes too if SCO seals its filings so Groklaw can't point out such misrepresentations in a timely fashion prior to hearings."

This brings up a very valid point: how is a litigant prevented from hiding the content of litigation from public view? Isn't there a right for public access UNLESS there is a real valid (court confirmed) reason for something to be under seal?

Can SCO be compelled to unseal material for which the need for putting under seal is tenuous at best?

I know it may potentially rather inconvenience SCO to have everything in the open except "trade secrets", but the mere fact that they're trying to hide information is an indication said information is worth examining..

[ Reply to This | # ]

Novell's Response to SCO's Opposition to Novell's Evidentiary Objections
Authored by: studog on Wednesday, July 04 2007 @ 08:43 AM EDT
I've been wondering if the strategy isn't this: BSF is acting as incompetently
as possible without seemingly doing it on purpose, thereby to a) extract
themselves and their reputation from this case (they can have some low-level
lawyers take the fall) and b) afford SCO a full new re-trial based on bad
representation. That's the grandaddy of delay right there.

...Stu

[ Reply to This | # ]

Going on too long
Authored by: TedSwart on Wednesday, July 04 2007 @ 10:51 AM EDT
Is it just me or have the rest of you also got to the stage of being sickened by
the way the SCO/Novell and SCO/IBM trials are going on endlessly? The whole
exercise should surely have been nipped in the bud early on, on the grounds that
SCO never presented any real charges or real evidence for their charges. There
is clearly something terribly wrong with the legal system. Surely the time for
some action is long overdue.

The ONLY reason I have heard as to why it hsa taken so long is that the judges
want, if at all possible, to avoid an appeal. This seems tome to be an
incredibly weak reason. PJ says at the end of her, ever excellent, discourse on
the latest contribution ot the trial by the Novell lawyers::

"Maybe SCO's style works if you aren't being watched closely, the way this
case is. But it surely doesn't work in the glare of the Internet's spotlight,
and it's something I hope someday their lawyers explain in a book or an article.
Why did they do it, over and over? I've wondered sometimes too if SCO seals its
filings so Groklaw can't point out such misrepresentations in a timely fashion
prior to hearings. If so, it's a wasted strategy. Novell misses nothing."

If the whole sordid exercise ever turns out to be worthwhile then it must surely
do more than merely result in fulfilling PJ's hope that "their lawyers
explain in a book or an article. Why did they do it," Surely the rules
allowing sealing and the whole litigation process needs a complete overhaul. I
read somewhere recently that the cost of the massively tortuous litigation
process in America is a huge and unnecessary drain on the economy -- which it
can ill afford. So it is my personal hope that these SCO trials and the Groklaw
coverage of these trials results in tangible changes to the litigation process.
It would seem that there is at last -- ever so slowly -- some progress on the
existence and handling of software patents. So why can we not see some other
changes as well?

If we don't see some real changes in litigation in action then the magnificent
work which PJ has done through Groklaw will -- to some extent -- go to waste. Am
I simply dreaming?


[ Reply to This | # ]

Camouflage
Authored by: Rudisaurus on Wednesday, July 04 2007 @ 01:45 PM EDT
I know. You are saying, what, again? Well, my friends, a leopard doesn't change his spots, you know.
No, but an octopus does ... and SCOX/BSF tactics are looking distinctly cephalopodian, with slimy tentacles waving seemingly randomly all over the place. Yuck!

[ Reply to This | # ]

Novell's Response to SCO's Opposition to Novell's Evidentiary Objections
Authored by: Anonymous on Thursday, July 05 2007 @ 02:53 AM EDT
PJ - is this SCO calling the shots, or the law firms? Perhaps a better way to
ask the question is, how much of the strategy is determined by the client and
how much by the attorney?

If this takes a bit more to explain, I'd love to see a posting to the general
page with your thoughts on this.

[ Reply to This | # ]

Novell's Response to SCO's Opposition to Novell's Evidentiary Objections
Authored by: Anonymous on Thursday, July 05 2007 @ 11:33 AM EDT
It's based on the 2.4 kernel as the PS2 really doesn't have the memory for a "modern" linux distro.

The amount of avalailable memory may prevent the PS2 from running a "modern Linux distro" (or rather - a typical modern desktop PC Linux distro), because those tend to take up quite a lot of space both in RAM and on disk (or whatever other permanent storage the PS2 has).

However, the choice of the Linux kernel has not much impact there. Quite the contrary, a 2.6 kernel has a lot of compile time options that can be used to cut down on kernel size that are not present in a 2.4 kernel (by the way, these options have been introduced specifically to support small, embedded systems). In consequence, a Linux 2.6 kernel (in fact, a full Linux distro for embedded systems, like e.g. http://www.openwrt.org) can run happily on a system with 8MB RAM and another 8MB flash (as persistent store).

[ Reply to This | # ]
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