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| Three Sealed Filings by Novell - Oops. 5 More Unsealed Novell Filings |
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Tuesday, September 04 2007 @ 06:21 PM EDT
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There are three new filings in SCO v. Novell by Novell, two opposition memoranda to SCO's motions in limine 406 and 408 and a sealed Declaration supporting the memoranda, but they are all sealed, so for now, we'll have to be satisfied with the PACER notes.
I don't know about you, but I'm kind of glad not to have anything new to think about today.
: ) The truth is, I haven't had time yet to *read* all the most recent filings that the parties filed on the 31st of August, let alone get all the text versions done. So a breather is nice. Update: Of course, as soon as I said that, Novell filed five more, along with exhibits, a total of 13 documents. I'll add them to the list.
Here the sealed filings are: 432 -
Filed: 08/31/2007
Entered: 09/04/2007
Sealed Document
Docket Text: **SEALED DOCUMENT** filed by Defendant Novell, Inc. - Opposition to SCO's 405 Motion in Limine to Exclude Testimony of Terry L. Musika (note: there is no image attached to this entry). (ce)
433 -
Filed: 08/31/2007
Entered: 09/04/2007
Sealed Document
Docket Text: **SEALED DOCUMENT** filed by Defendant Novell, Inc. in Opposition to SCO's 406 and 408 Motions in Limine Regarding Apportionment of Microsoft and Sun SCOSOURCE Licenses (note: no image attached to this entry). (ce)
434 -
Filed: 08/31/2007
Entered: 09/04/2007
Sealed Document
Docket Text: **SEALED DOCUMENT** filed by Defendant Novell, Inc. - Declaration of David E. MeLaugh in Support of Novell's Opposition (entry 433) to SCO's Motions in Limine entry numbers 406 and 408 (note: there is no image of this document). (ce)
Eventually, we are likely to get redacted versions. Anyway, there's been lots of good news already today and recently. We can bask in that glow a while.
And here are the new ones from Novell: 435 -
Filed & Entered: 09/04/2007
Reply Memorandum/Reply to Response to Motion
Docket Text: REPLY to Response to Motion re [395] MOTION in Limine No. 3 to Preclude SCO from Introducing New Evidence or Argument of SCOsource Revenue filed by Defendant Novell, Inc.. (Sneddon, Heather)
436 -
Filed & Entered: 09/04/2007
Reply Memorandum/Reply to Response to Motion
Docket Text: REPLY to Response to Motion re [391] MOTION in Limine No. 1 to Preclude SCO from Challenging Questions Already Decided as a Matter of Law filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit 1 # (2) Exhibit 2 # (3) Exhibit 3)(Sneddon, Heather)
437 -
Filed & Entered: 09/04/2007
Reply Memorandum/Reply to Response to Motion
Docket Text: REPLY to Response to Motion re [393] MOTION in Limine No. 2 to Preclude SCO from Contesting Licenses Conveying SVRX Rights are "SVRX Licenses" filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit 1 # (2) Exhibit 2)(Sneddon, Heather)
438 -
Filed & Entered: 09/04/2007
Reply Memorandum/Reply to Response to Motion
Docket Text: REPLY to Response to Motion re [385] MOTION to Strike SCO's Jury Demand filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit 1 # (2) Exhibit 2)(Sneddon, Heather)
439 -
Filed & Entered: 09/04/2007
Reply Memorandum/Reply to Response to Motion
Docket Text: REPLY to Response to Motion re [387] MOTION to Dismiss Voluntarily Its Third Claim for Relief filed by Defendant Novell, Inc.. (Sneddon, Heather) Number 436 looks interesting. Novell has found a case that Judge Dale Kimball decided in 2003. And the nice thing is the cases this time are without all the copyrighted materials. So I can show them to you.
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| Authored by: darkonc on Tuesday, September 04 2007 @ 06:42 PM EDT |
| Like there will be any errors here.... ---
Powerful, committed
communication. Touching the jewel within each person and bringing it to life.. [ Reply to This | # ]
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| Authored by: darkonc on Tuesday, September 04 2007 @ 06:45 PM EDT |
If you don't like the subject, then change it.
Remember to make your
hot-links <a href="http://www.example.com/"> clickey
</a>.---
Powerful, committed communication. Touching the jewel
within each person and bringing it to life.. [ Reply to This | # ]
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| Authored by: Aladdin Sane on Tuesday, September 04 2007 @ 06:54 PM EDT |
| [NP] News Picks comments
Please put the title of the News Pick in your
comment title.
---
Free minds, Free software [ Reply to This | # ]
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| Authored by: bbaston on Tuesday, September 04 2007 @ 08:46 PM EDT |
Just pulling Peter's post to a top-level for all to notice. Peter points out
that:
432 must contain details as to why Mr. Musika's testimony
should not be discarded;
433 certainly contains the tests and amounts of the
Sun and M$ "licenses."
434 probably relates (some) facts contained in
432 and 433.
Self-explanatory
indeed.
---
IMBW, IANAL2, IMHO, IAVO
imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, September 04 2007 @ 11:21 PM EDT |
Examining 436, Novell squarely addressed the primary concern that I had about
the SCO motions. The possible point that SCO had made about Novell not
specifically identifying what it is requesting be limited other than claims or
defenses that the opposition may make at client. No specification on evidence
or testimony they are requesting be excluded.
As usual, the Novell explanation at this point is very well articulate for even
the non-legal such as myself to understand and immediately apprehend the primary
basis of authorities behind thier position.
---
Clocks
"Ita erat quando hic adveni."[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, September 05 2007 @ 02:57 AM EDT |
You know there is some kind of perverse pleasure in watching the legal carnage
unfold. Its like listening to yeras of predictions of what is going to happen
in the gladitorial games and then stepping into the stands of the collesium and
watching as an overmatched opponent flails about aggressively against an
intellegent gladiator.
In documents 438 and 439 we are seeing some of the carnage come to pass. You
can almost hear the gloating laughter as the tired but near-victorious Novell
team looks on a SCO legal defense which practically whines its "right"
to a jury trial.
I love the opening statement in 438; "SCO may want a jury trial, but that
doesn't mean it gets one."
And as Novell moves through, it quite convincingly establishes that the seventh
amendment right to trial does not get invoked in a case where all relief sought
is equitable in nature. While I am not a lawyer by any means, it seems fairly
simple and straightforward. Novell isnt looking for punitive damages. It wants
simply what the letter of the law based on the contracts between Novell and SCO
says Novell should have for its various claims.
This is then used as a corner stone to stand firm in 439 in that Novell should
be allowed to dismiss its third counter claim for relief. Bascially saying that
SCO only says they do not want the third claim dismissed because they want a
jury trial. But the fact still stands that even if you keep the third claim in,
SCO still has no standing to require a jury trial because all damage claims are
equitable in nature.
438 and 439 also drop several other gems. Pointing out cases that SCO
references that have zero application to the current context. Cases which are
cited and explained but never applied to the current situation at all. The tone
of incredulity pushing the point of raucous laughter is rampant throughout,
imho.
The post-PSJ-order motions as SCO tries to dogfight its way out of a bankrupcy
inducing bench trial judgement has been without a doubt some of the most
entertaining legal adversarial commentary I have had occasion to observe in the
Novell and IBM cases.
---
Clocks
"Ita erat quando hic adveni."[ Reply to This | # ]
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| Authored by: DaveJakeman on Wednesday, September 05 2007 @ 07:23 AM EDT |
These are such an enjoyable read. I couldn't help grinning all the
way through 435. I especially appreciate Novell's use of italics for selective
additional impact. So punchy! I wish all court filings were like
these.
Here are the intro's for each:
435:
SCO
concedes the bulk of this motion, agreeing that the only theory it will advance
at trial is that Novell is entitled to nothing. With that agreement in place,
the question then becomes the manner in which SCO is permitted to support such
an argument. SCO's in limine briefing presents theories of apportionment
that SCO was under obligations – both fiduciary and discovery-based – to
disclose long ago. It should therefore be precluded from surprising Novell with
such evidence and argument now.
436:
The
Court's August 10, 2007 Memorandum Decision and Order ("Order") considerably
limited the scope and nature of the trial. Aiming to confine the trial to the
issues the Order left open, Novell requested in its Motion in limine No.
1 that the Court preclude SCO from "introduc[ing] evidence or argument that
questions or challenges" the Order's holdings. (Mot. at 1.) In fact, it now
appears as if SCO does intend to challenge the Order at trial, so the motion
anticipated a live dispute.
SCO's Opposition to Novell's motion otherwise
boils down to two contentions: that Novell's motion is insufficiently specific
as to the relief sought, and that Novell is attempting to impermissibly alter
the scope of issues for trial through an evidentiary motion. Both of these
contentions are untenable.
437:
SCO's
Opposition makes clear that SCO intends to advance a nonsensical argument
designed to undermine this Court's August 10 Memorandum Decision and Order –
namely, that the same license can, at the same time, be both "an SVRX License"
and "not an SVRX License." Because such a position conflicts with the Court's
Order and therefore runs afoul of the law of the case, the Court should bar SCO
from introducing evidence or argument in support of such a
claim.
438:
SCO may
want a jury trial, but that doesn't mean it gets one. The issue is whether,
properly analyzed pursuant to well-settled case law, Novell's claims for relief
are legal or equitable in nature. SCO's opposition depends on shifting the
focus away from the relief that Novell is actually seeking. Properly viewed,
Novell's claims are equitable in nature, and SCO has no right to trial by
jury.
439:
Ever
since the Court's August 10, 2007 Memorandum Decision and Order ("Order"),
Novell has endeavored by all means practical to simplify this case and reduce
the number of issues that need to be tried. As part of that effort, Novell
secured SCO's agreement to dismiss Novell's First, Second, and Fifth Claims, as
well as its claim for punitive damages, subject to conditions on which the
parties agreed. SCO balked, however, at Novell's attempt to dismiss its Third
Claim, for breach of contract, subject to the same terms.
SCO now opposes
Novell's Motion to Voluntarily Dismiss Its Third Claim for Relief on the grounds
that dismissing this claim would jeopardize SCO's supposed right to a jury
trial, frustrate SCO's apparent "expectation" that this case would ultimately be
heard by a jury, and permit Novell to revive the claim in a hypothetical future
proceeding. None of these arguments justifies overlooking the efficiencies that
a dismissal would provide, and SCO has not cited any case that denied a motion
to dismiss in similar circumstances. The Court should not compel Novell to try
a claim that seeks equitable relief to which Novell is already entitled through
other claims and that Novell thus does not need or desire to
prosecute.
Take your pick and Enjoy.
---
Only two things
are infinite: the universe and human stupidity – and I'm not sure about the
former. -- Einstein [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, September 05 2007 @ 09:40 AM EDT |
| Reading these, I am reminded of the story (seen here) of the attorney who said to IBM's legal team, "I want you to have this, and
if I ever am stupid
enough to sue IBM again, I want you to use it to cut my
throat," after giving them a knife as a gift.
I think the same can be
said for Novell's attorneys... I would hate to see a legal battle between the
two. That just seems downright ugly. [ Reply to This | # ]
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| Authored by: Hyrion on Wednesday, September 05 2007 @ 02:48 PM EDT |
Well... After reading the sets I was reminded of an item that was brought up
several times:
- If you can't pound on the facts, pound on the
Law!
- If you can't pound on the Law, pound on the facts!
- If you
can't pound on either the Law or the facts, pound on the table!
After
watching this case and the SCOG vs IBM case, I've come to the conclusion that
when you're dealing with Judge Wells or Kimball, you'd better avoid pounding on
the table because that won't get you very far.
If Novell is granted their
request for trial by Judge, SCOG won't be able to pound on the table. From the
cases BSF keeps citing, SCOG doesn't have the Law to pound on. From the
evidence that's publicly available, they don't have the
facts.
---
IANAL - But I am very curious and like to research.
There are many kinds of dreams. All can be reached if a person chooses.
RAS [ Reply to This | # ]
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