Appeal No. 08-4217

IN THE
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

THE SCO GROUP, INC.,
Plaintiff-Appellant,
vs.
NOVELL, INC.,
Defendant-Appellee.

On Appeal from the United States District Court
for the District of Utah
The Honorable Dale A. Kimball, Judge Presiding
(Case No. 2:04-CV-00139-DAK)

DEFENDANT-APPELLEE NOVELL, INC.'S RESPONSE TO
APPELLANT'S MOTION TO EXPEDITE APPEAL

Attorneys for Defendant-Appellee NOVELL, INC.

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RESPONSE TO APPELLANT'S MOTION TO EXPEDITE APPEAL

1. Novell does not oppose expediting the due date for SCO's opening brief to March 6, 2009.

2. As Novell informed SCO, however, Novell does believe a reasonable extension is warranted for Novell's opposition brief. Novell therefore opposes the proposed April 6, 2009 deadline for the appellee's brief.

3. Novell requests a 30-day extension for its brief. In the event the Court adopts SCO's proposed opening deadline, Novell's brief would be due May 5, 2009.

4. Such an extension is warranted here. Though Novell believes that this appeal presents a straightforward matter of applying plain contract language to undisputed or established facts, the parties generated a considerable record below. SCO has identified seven issues on appeal. Four stem from an August 2007 ruling on the parties. motions for summary judgment. (Dec. 15, 2008 Docketing Statement at 5.) Those motions involved over 1,500 pages of briefing, numerous declarations, and many hundreds of pages of exhibits. The transcript for the summary judgment hearing is over 240 pages. The summary judgment order is itself 102 pages. The remaining three issues on appeal identified by SCO stem from a four-day bench trial, at which 10 witnesses were heard and over 550 exhibits introduced, resulting in a 43-page trial order. A 30-day extension will

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enable Novell to effectively marshal this voluminous record and to respond to SCO's opening brief, which, even with expedition, SCO will have had over 3 months to draft.

5. A 30-day extension will not overly prejudice SCO. Though SCO discusses at length its supposed need to move quickly on this appeal, it ignores that:

• SCO voluntarily filed for bankruptcy the day before trial was scheduled to go forward, in September 2007. Had SCO instead simply proceeded to trial, this appeal would have been completed long ago.

• SCO opposed lifting the bankruptcy stay to proceed with trial. Again, had SCO simply sought a prompt lifting of the stay to proceed to trial, this appeal would be complete by now.

• SCO unnecessarily delayed the post-trial steps required for SCO to perfect its appeal. For months, SCO filed motions and debated with Novell about issues concerning the form of final judgment. In the end, SCO either conceded or lost essentially every such dispute.

• SCO's bankruptcy plan does not hinge on a rapid appeal. For example, there are no potential buyers waiting in the wings to hear the appellate results. Instead, SCO proposes to sell off assets it claims are entirely unrelated to its litigation, leaving an entity whose main

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  (perhaps sole) purpose is to press these suits against Novell, IBM, Red Hat, AutoZone, and others.

Respectfully submitted on this 27th day of January, 2009.

ANDERSON & KARRENBERG
Thomas R. Karrenberg
Heather M. Sneddon
[address]
[phone]
[fax]

MORRISON & FOERSTER LLP
Michael A. Jacobs
George C. Harris
David E. Melaugh
[address]
[phone]
[fax]

/s/ Michael A. Jacobs

Attorneys for Defendant-Appellee
NOVELL, INC.

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CERTIFICATE OF SERVICE

I, Michael A. Jacobs, hereby certify that on this 27th day of January, 2009, a true and correct copy of the foregoing DEFENDANT-APPELLEE NOVELL, INC.'S RESPONSE TO APPELLANT'S MOTION TO EXPEDITE APPEAL was electronically filed with the court and forwarded via electronic mail to the following recipients:

Edward Normand
BOIES, SCHILLER & FLEXNER LLP
[address]

Stuart Singer
BOIES, SCHILLER & FLEXNER LLP
[address]

Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, PC
[address]

s/ Michael A. Jacobs
MORRISON & FOERSTER LLP
Michael A. Jacobs
George C. Harris
David E. Melaugh
[address]
[phone]
[fax]
[email address]

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CERTIFICATE OF DIGITAL SUBMISSION

The undersigned certifies with respect to this filing that no privacy redactions were necessary. This DEFENDANT-APPELLEE NOVELL, INC.'S RESPONSE TO APPELLANT'S MOTION TO EXPEDITE APPEAL submitted in digital form is an exact copy of the written document filed with the Clerk.

This digital submission has been scanned for viruses with the most recent version of a commercial virus scanning program (using Symantec AntiVirus v.10.1.4.4, last updated January 24, 2009) and, according to the program, is free of viruses.

Dated: January 27, 2009

s/ Michael A. Jacobs
MORRISON & FOERSTER LLP
Michael A. Jacobs
George C. Harris
David E. Melaugh
[address]
[phone]
[fax]
[email address]

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UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

ORDER

Before KELLY and McCONNELL, Circuit Judges.

Pending before the court is "Appellant's Unopposed Motion to Expedite Appeal" and the "Defendant-Appellee Novell, Inc.'s Response to Appellant's Motion to Expedite Appeal." The motion is granted in part.

Appellant appeals a decision of the district court related to UNIX operating system copyrights. Appellant asserts that the progress of other pending litigation is dependent on the resolution of this appeal and therefore asks that the appeal be expedited. The appellant asks to be ordered to file its opening brief by March 6, 2009, for the appellee to be ordered to file its response brief by April 6, 2009, and to be ordered to file a reply brief

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by April 20, 2009. The appellee does not strongly object to the appeal being expedited, but does object to the briefing schedule, asking for a 30-day extension to file its response brief beyond that proposed by the appellant.

The speed at which the opening brief is filed is almost completely within the control of the appellant who now seeks expedited briefing. The appellant can file its opening brief and appendix at any time those documents are ready, thus triggering a due date for the filing of a response brief. Appellant can also file its reply brief the next day after the response brief is filed, should appellant so elect. Therefore, there is no need to set an expedited schedule for the filing of the opening brief and reply.

The court does direct, however, that once the time for the filing of the appellee's response brief is set based on the service date of the opening brief and appendix (see Fed. R. App. P. 31(a)(1)), the appellee is discouraged from filing any motion for extension of time within which to file its response brief. Further, if appellee does seek an extension of time, the appellee is limited to a single extension of time of no more than 15 days.

The court infers from the motion to expedite that once the appeal is briefed, the appellant would like the panel of judges assigned to the case to give this appeal expedited consideration over other cases. However, in this circuit, the appeal will not be assigned to a panel until after it is fully briefed. After the briefing is completed, the appellant may, if it so elects, file a motion asking that the case be given expedited consideration on the

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merits by the panel ultimately assigned to hear this appeal.

Entered for the Court
ELISABETH A. SHUMAKER
Clerk of Court

(signature)

by:
Douglas E. Cressler
Chief Deputy Clerk

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