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Novell Moves Another Piece Forward: Files Request for Judicial Notice - Updated 2Xs
Thursday, February 25 2010 @ 01:27 PM EST

Novell moves another piece forward in this intricate chess game of preparation for the upcoming trial in SCO v. Novell, filing a Request for Judicial Notice of Prior Factual Findings:
Novell ... respectfully requests that the Court take judicial notice of certain factual findings that were previously made by this Court and affirmed by the Tenth Circuit or not appealed.
My first reaction was that Novell would at least like to make sure that points Novell has already won both at the district court level before Judge Kimball and which were confirmed on appeal or never appealed don't have to be won again before Judge Stewart. We have seen in the past where SCOfolk tend to bring old issues up again and again, after all.

But it's deeper than that. Now that the court here has ruled on most of the motions in limine, Novell is now free to propose a list of items it won before Judge Kimball and that were upheld on appeal (or not appealed at all) and in some cases confirmed by Judge Stewart when he granted a particular Novell motion in limine. So they do that. In other cases, as you'll see when you read the filing, it has to do with issues where the judge granted a Novell motion in limine so that a particular SCO claim was tossed out of the case, but Novell would like the earlier factual findings from that claim mentioned to the jury, because they touch on other claims still in the litigation. And in at least one case, it's a way to make sure the jury knows the full picture, not just the tiny slice SCO would like it to hear about.

Here's the definition of what a request for definition is. If the court agrees to the list, then the facts will be presented to the jury in the jury instruction as uncontroverted facts they have to accept as reality and not something for them to figure out anew.

First, the filing:

02/24/2010 - 729 - REQUEST for Judicial Notice of Prior Factual Findings filed by Defendant Novell, Inc.. (Brennan, Sterling) (Entered: 02/24/2010)

Here's our list, from the filing, of what Novell is asking the Court to take notice of:

Factual Finding 1. "[A]greements that postdate the APA may constitute SVRX Licenses." The SCO Group, Inc. v. Novell, Inc., 578 F.3d 1201, 1227 (10th Cir. 2009).

Factual Finding 2. "Although Novell may have initially intended to sell the complete UNIX business, both parties agree that Santa Cruz was either unwilling or unable to commit sufficient financial resources to purchase the entire UNIX business outright." SCO Group, 578 F.3d at 1205.

Factual Finding 3. "If [one] were to interpret the contract based initially only on the APA itself — without regard to Amendment No. 2 — ... its language unambiguously excludes the transfer of copyrights." SCO Group, 578 F.3d at 1210.

Factual Finding 4. "[T]here is no evidence that Novell's public statements [regarding copyright ownership] were based on anything but its good faith interpretation of the contracts." (Summary Judgment Order at 64, Dkt. No. 377.)

Factual Finding 5. "[T]here is no evidence to demonstrate that Novell's position [regarding copyright ownership] was contrary to its own understanding of the contractual language or objectively unreasonable given the history of the dispute between the parties." (Summary Judgment Order at 65, Dkt. No. 377.)

Factual Finding 6. "SCO breached its fiduciary duties to Novell by failing to account for and remit the appropriate SVRX Royalty payments to Novell for the SVRX portions of the 2003 Sun ... Agreement[]." (Summary Judgment Order at 96, Dkt. No. 377.)

Factual Finding 7. "SCO was not authorized under the APA to amend, in the 2003 Sun Agreement, Sun's 1994 SVRX buyout agreement with Novell, and SCO needed to obtain Novell's approval before entering into the amendment." (Final Judgment at 2, Dkt. 565.)

I don't see how SCO can oppose the one about not having enough money for the full deal originally contemplated, just as one example, as the appeals court already noted that:
Although Novell may have initially intended "to sell the complete UNIX business," both parties agree that Santa Cruz was either unwilling or unable to commit sufficient financial resources to purchase the entire UNIX business outright.
But if anyone can come up with something in opposition, it's surely Boies Schiller, so let's watch and see.

[Update: In fact, one reader compares SCO's arguments to a Mandelbrot set graph, which made me smile. Here's what that is for any who may not know what he means:

The Mandelbrot set, named after Benoit Mandelbrot, is a fractal. Fractals are objects that display self-similarity at various scales. Magnifying a fractal reveals small-scale details similar to the large-scale characteristics. Although the Mandelbrot set is self-similar at magnified scales, the small scale details are not identical to the whole. In fact, the Mandelbrot set is infinitely complex. Yet the process of generating it is based on an extremely simple equation involving complex numbers.
So he was talking about the infinite complexity of the case, and didn't he get it just right? -- but I laughed when I read the comment, because of the detail about small-scale details not being identical to the large-scale characteristics. Ah, SCO! How funny it's been, watching your journey with all its twists and turns, and the closer we look, the funnier it gets, because of the mismatching details. - End Update.]

Meanwhile, no matter what happens with this request, Novell is carefully also setting up its appeal, by ensuring that the judge must deal with each and every item on this list. If nothing else, at least he is having to focus carefully on some of the details of this elaborate case, so that in a perfect world he doesn't rule in a way that compels an appeal. That costs money too, after all.

[ Update 2: More motions in limine decided and we will update our chart: "The Court agrees with Plaintiff that Defendant’s Motions are really requests for jury instructions. Therefore, the Court will deny the Motions and will determine the issues contained therein when addressing the jury instructions."

02/25/2010 - 730 - ORDER denying 629 Motion in Limine; denying 630 Motion in Limine. Signed by Judge Ted Stewart on 02/25/2010. (asp) (Entered: 02/25/2010)

- End Update 2.]

We'll work on a complete text for you next.


  


Novell Moves Another Piece Forward: Files Request for Judicial Notice - Updated 2Xs | 64 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections
Authored by: LocoYokel on Thursday, February 25 2010 @ 01:33 PM EST
Please help PJ out by indicating the correction in the title.

[ Reply to This | # ]

News Picks
Authored by: LocoYokel on Thursday, February 25 2010 @ 01:35 PM EST
Discussion on News Picks here, please title your comment to indicate the news
item you are discussing. Also include URLs for external links and follow the
red text to make them click-able.

[ Reply to This | # ]

Off Topic
Authored by: LocoYokel on Thursday, February 25 2010 @ 01:37 PM EST
Any discussion not pertaining to this article and not covered in the other
threads here. Please include links to external references and make them
click-able if you can.

[ Reply to This | # ]

Comes Transcripts Here
Authored by: LocoYokel on Thursday, February 25 2010 @ 01:40 PM EST
Please put any Comes transcripts in this thread. PJ appreciates it of you can
include the HTML but post in text made to make it easier for her to cut and
paste it into the archives.

[ Reply to This | # ]

The Seven Year Thread
Authored by: Totosplatz on Thursday, February 25 2010 @ 01:41 PM EST
Has this gone on long enough or what?

<G>

---
Greetings from Zhuhai, Guangdong, China; or Portland, Oregon, USA (location
varies).

All the best to one and all.

[ Reply to This | # ]

Can he refuse this?
Authored by: red floyd on Thursday, February 25 2010 @ 01:44 PM EST
Especially the ones from the 3rd circuit?

---
I am not merely a "consumer" or a "taxpayer". I am a *CITIZEN* of the United
States of America.

[ Reply to This | # ]

Text of Federal Rules on Judicial Notice
Authored by: Guil Rarey on Thursday, February 25 2010 @ 02:02 PM EST
I retrieved this from http://www.law.cornell.edu/rules/fre/rules.htm

As with any legal topic, this isn't even the surface of the matter, more like
the stratosphere, but it's a start.

Can we discuss how judicial notice works here?


ARTICLE II. JUDICIAL NOTICE

Rule 201. Judicial Notice of Adjudicative Facts

(a) Scope of rule.

This rule governs only judicial notice of adjudicative facts.

(b) Kinds of facts.

A judicially noticed fact must be one not subject to reasonable dispute in that
it is either (1) generally known within the territorial jurisdiction of the
trial court or (2) capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned.

(c) When discretionary.

A court may take judicial notice, whether requested or not.

(d) When mandatory.

A court shall take judicial notice if requested by a party and supplied with the
necessary information.

(e) Opportunity to be heard.

A party is entitled upon timely request to an opportunity to be heard as to the
propriety of taking judicial notice and the tenor of the matter noticed. In the
absence of prior notification, the request may be made after judicial notice has
been taken.

(f) Time of taking notice.

Judicial notice may be taken at any stage of the proceeding.

(g) Instructing jury.

In a civil action or proceeding, the court shall instruct the jury to accept as
conclusive any fact judicially noticed. In a criminal case, the court shall
instruct the jury that it may, but is not required to, accept as conclusive any
fact judicially noticed.

---
If the only way you can value something is with money, you have no idea what
it's worth. If you try to make money by making money, you won't. You might con
so

[ Reply to This | # ]

if not summary judgement, at least we can tell the jury what to think
Authored by: Anonymous on Thursday, February 25 2010 @ 02:22 PM EST
Sounds to me like Novell is getting as close to a directed verdict as they
possibly can.

Not that I blame them.

Judge: "The jury will notice that, although his left thumbprint was found
at the crime scene, the defendants left arm was amputated the week prior."

[ Reply to This | # ]

Are we still in Wonderland?
Authored by: jbb on Thursday, February 25 2010 @ 02:42 PM EST
PJ has repeatedly warned us against trying to apply logic to the
law. Ever since the 10th Circuit CoA's ruling, sending this back
to a jury trial, PJ's warning has been particularly relevant. ISTM
that Judge Stewart is caught between the CoA ruling and the
law sort of like how a programmer can be caught between the
promises made by his PHB and the laws of physics.
<p>
For example, Judge Stewart granted in part and denied in part
almost all of Novell's Motions in Limine to exclude SCO's
witnesses from testifying about the APA and/or amendment 2.
Generally, the "denied in part " piece meant that these witness
would be allowed to testify that the original APA (without
amendment 2) was intended to transfer copyrights. IMO, Judge
Stewart risked facing the wrath of the 10th Ciruit CoA if he
granted those motions in full because the CoA said explicitly
they wanted a jury to hear from those witnesses.
<p>
Novell's FF#3, (which says that the APA without amendment 2
unambiguously excludes transfer of copyrights) highlights the
absurd situation created by the CoA's ruling. For the sake of
argument, let's assume Novell's FF#3 gets approved. The CoA
insisted that these witness get to testify yet the only thing they
are even possibly qualified to testify about is

---
You just can't win with DRM.

[ Reply to This | # ]

Factual Finding 3
Authored by: DaveJakeman on Thursday, February 25 2010 @ 02:56 PM EST
This is the one Novell need to win. Coupled with what SCO is limited to talk
about with regard to Amendment 2, if Novell are granted this one, the sand under
SCO's legal foundations will be dust in the wind.

That said though, will this judge grant it, or simply state "the Court
cannot rule on this issue in the abstract". (Huh???)

[ Reply to This | # ]

Judicial Efficiency (Divergence?)
Authored by: Anonymous on Thursday, February 25 2010 @ 02:58 PM EST
How does the supreme court process weigh in here?

Ok lets play a quick game of lets pretend. Everything goes forward. Novell
files its appeal to the Supreme Court. The court does not examine it for cert
until after the trial is already over.

We have a trial verdict, one way or another. That verdict is itself already
stated to be appealed by one party or the other.

At the same time, the supreme court appeal is now accepted?

The question that occurs to me is "How in the world is anyone supposed to
figure out this case?"

Does the SCOTUS acceptance stay the appelate track from the second trial?

Does the SCOTUS acceptance stay any enforcement of a verdict from the second
trial?

Going further down the road of supposition... what happens to all of the effort
which has been expended since the trip through McConnell's rabbit hole if SCOTUS
ultimately overturns the 10th?

---
Clocks
"Ita erat quando hic adveni."

[ Reply to This | # ]

Are we still in Wonderland?
Authored by: jbb on Thursday, February 25 2010 @ 03:15 PM EST
Opps: a previous incomplete version of this got posted. Sorry about that.

PJ has repeatedly warned us against trying to apply logic to the law. Ever since the 10th Circuit CoA's ruling, sending this back to a jury trial, PJ's warning has been particularly relevant. ISTM that Judge Stewart is caught between the CoA ruling and the law sort of like how a programmer can be caught between the promises made by his PHB and the laws of physics.

For example, Judge Stewart granted in part and denied in part almost all of Novell's Motions in Limine to exclude SCO's witnesses from testifying about the APA and/or amendment 2. Generally, the "denied in part " piece meant that these witnesses would be allowed to testify that the original APA (without amendment 2) was intended to transfer copyrights. IMO, Judge Stewart risked facing the wrath of the 10th Ciruit CoA if he granted those motions in full because the CoA said explicitly they wanted a jury to hear from those witnesses.

Novell's FF#3, (which says that the APA without amendment 2 unambiguously excludes transfer of copyrights) highlights the absurd situation created by the CoA's ruling. For the sake of argument, let's assume Novell's FF#3 gets approved (since even the CoA admits it is true). The CoA insisted that these witness get to testify yet the only thing they are even possibly qualified to testify to is something the jury will be told is false and not under consideration.

I think Judge Stewart found a tiny sliver of an opening between the ruling of the CoA and the reality of the law: ... wait for it ... it's that old-time SCO favorite, a scrivener's error. The idea (put forth by SCO) is that even though they didn't have nearly enough money to buy the copyrights, the original APA was intended to transfer the copyrights to them anyway at a bargain basement price and the only reason it didn't was because of a typo that later got "corrected" with amendment 2. Of course, amendment 2 does not even purport to correct a typo in the original APA. This also seems to fly in the face of the most fundamental aspect of contract law which is: a contract is a contract is a contract. If it had a $250 million typo and they signed it anyway then they should sue their lawyers not Novell.

I sure hope the Supreme Court decides to take another look at this CoA ruling. If it stands as is then no contract is safe. The CoA basically said that the most reasonable and unambiguous contract can be challenged by witnesses who were not directly involved in the writing or signing of the contract. The only question I have is that if this sorry mess actual goes to trial, even after all of SCO's irrelevant smoke and mirrors have been stripped away, then who is going the look more ridiculous: SCO or the CoA?

---
You just can't win with DRM.

[ Reply to This | # ]

#728 and #729
Authored by: ChrisP on Thursday, February 25 2010 @ 06:29 PM EST
A couple of people have said they do not understand the judge's ruling in #728,
denying Novell's MiL 11 (no substantial performance from SCO) and granting SCO's
MiL 3 (no mention of the monetary award from the previous trial). IANAL and ICBW
but this is the way I see it. See also the Pretrial Order, #731, and the
Pretrial Conference - Final, #733.

One possible trial outcome is that the jury would find that the APA as amended
did not transfer the copyrights in 1995 but SCO do need them now. That puts
SCO's alternate specific performance claim to force Novell to transfer the
copyrights into play. Novell wanted to close this hole the copyrights could fall
through before the trial started. In order to do this they made the following
argument in Novell MiL 11:

A. Kimball ruled (in effect) that SCO did not substantially perform their side
of the contract (APA)

B. Under California law, SCO's lack of substantial performance means that
Novell's specific performance (copyright transfer) cannot be enforced

C. So SCO should not be allowed to say they did perform according to the APA

D. Novell wanted to use the monetary judgement to prove that SCO did not perform
substantially.

E. SCO argued in its MiL 3 that mentioning the monetary award would prejudice
the jury against them.

Judge Stewart picked apart Novell's argument thus:

A. Judge Kimball ruled that SCO were guilty of financial misbehaviour and
conversion, not lack of substantial performance

B. California law importantly says that the bad behaviour must be a failure to
perform a 'condition precedent' or a necessary prerequisite to the specific
performance. Judge Stewart ruled that not paynig the Sun SVRX royalties to
Novell is not a precondition of SCO getting the copyrights.

C. As the royalty issue is not a condition precedent, SCO can argue that they
substantially performed their side of the APA to get a favourable ruling on
specific performance

D and E. Likewise the monetary judgement is not relevant to the copyright issue,
and it would be prejudicial to SCO, so Novell cannot mention it.

Then comes #729, a Request from Novell for judicial notice of several 'facts'.
In #731 the Pretrial Order you can see SCO disputing them.

In particular with Factual Findings 6 and 7 Novell wants the court to state that
SCO did not perform its obligations to involve Novell in SVRX buyout
negotiations and to pass over the royalty money. Novell quotes the same Kimball
ruling that Judge Stewart quoted in his #728 order. I agree with Novell's
contention that this is highly relevant to the other 2 issues the Court of
Appeals remanded, on the extent to which Novell can instruct SCO in managing the
SVRX contracts. I'm sure Novell weren't thinking about these facts putting SCO
into the jury's bad books. :-)

In #728 it was easy for the Judge to rule against Novell because they talked
about substantial performance and the monetary judgement in relation to the
copyright transfer. Now it gets harder. I see the facts as being both highly
relevant to Novell's defence and prejudicial to SCO. Which side of the fence
will the Judge land?

In #733, Pretrial Conference - Final, the Judge says "Defendant asks for
judicial notice regarding Judge Kimball's and the 10th Circuit's prior findings
on this case. The Court asks counsel to avoid reference to these findings
without prior notice to the Court." He's still sitting on the fence.

---
SCO^WM$^WIBM^W, oh bother, no-one paid me to say this.

[ Reply to This | # ]

Novell Moves Another Piece Forward: Files Request for Judicial Notice - Updated 2Xs
Authored by: Gringo on Thursday, February 25 2010 @ 06:50 PM EST
If Novell wins this, I can't believe that SCO would go to
court. It's all over in that respect.

[ Reply to This | # ]

  • They Will - Authored by: Anonymous on Friday, February 26 2010 @ 08:46 AM EST
Novell Moves Another Piece Forward: Files Request for Judicial Notice - Updated 2Xs
Authored by: Anonymous on Friday, February 26 2010 @ 01:38 AM EST
I think Novell has a good chance with these. This judge has shown a considerable
degree of exactitude in the way he interprets and follows previous rulings. If
Novell stick to the letter of the previous rulings in their request, he may well
agree. On the other hand he may prefer to wait until the issues actually come up
in trial rather than issue them as a blanket notice at the start.

[ Reply to This | # ]

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