Blake Stowell, then the PR guy for SCO, sent an email to Maureen O'Gara,
saying "I need you to send a jab PJ's way," and then right afterwards
she wrote that invasive so-called expose, in which she revealed, or at
least intended to reveal, things like who I called on my phone. A la the
HP scandal. She got fired for doing it the way she did, and the
then-publisher apologized to me publicly, but she says in the deposition
she's not sorry a bit.
We learn this by reading excerpts from her deposition, previously under
seal, attached to a letter [PDF] SCO's attorney sent to the court. SCO doesn't
want the part of her deposition video played where she talks about me
and Groklaw. It's beyond eye-opening, however, despite her pretense, as
I see it, that there is no connection between the two events.
They also don't want the part about an email she sent to SCO, subject
line, "I want war pay," played. It's allegedly humor. Just chatter. But
you know, she is on the list of people SCO owes money to, now that I
think of it, filed in connection with the bankruptcy. I wonder for what?
It isn't acceptable, in my eyes, that SCO's attorneys invariably smear Groklaw in every filing that mentions it. They don't just say "Groklaw," they say "the anti-SCO website, Groklaw." One can say quite a lot in legal filings, and get away with it, but there is a line where it becomes libel, when it is gratuitous, and that language is gratuitous. There isn't a media outlet that I can think of, other than Maureen O'Gara's newsletters, that hasn't criticized what SCO did. The Wall Street Journal was the first, actually, to suspect there was something rotten in Lindon, if you recall. Would it be acceptable to call it, in legal papers, the anti-SCO newspaper, the Wall St. Journal? I think not, and I suggest they are crossing a line.
Yes. I'm angry. Wouldn't you be?
BRENT O. HATCH
March 11, 2010
Hand Delivered
Honorable Ted Stewart
U.S. District Court Judge
350 S. Main St.
Salt Lake City, Utah 84101
Re: Maureen O'Gara deposition designations
Your Honor:
We object to the enumerated designations from Ms. O'Gara's
testimony. on the grounds
that they are unnecessarily cumulative, they are significantly more
prejudicial than probative, and
they create undue potential for outside sources and commentary to
prejudice the jury.
As an initial matter, the designations are cumulative. Novell
seeks to undermine the
credibility of Ms. O'Gara, a longstanding reporter in the
technology field, by showing that she
communicated with Blake Stowell, who was SCO's director of press
relations for a period of
time, The parties have agreed that Novell is permitted to designate
testimony that clearly
demonstrates such communications. (See 29:13-19; 33:6-24;
37:8-38:25.) The designations at
issue here serve merely to make the same point, and thus are not
necessary.
The designations are also significantly more prejudicial than
probative. In the first
designation at issue (39:2-19). Ms. O'Gara is asked about the
content of an e-mail that she
forwarded to Mr, Stowell, In the e-mail, one of Ms. O'Gara's
readers claims that she "take[s]
SCO's side like Hillary took Bill Clinton's side when he was
being accused of fooling around with
Monica." The reader's view is irrelevant and hearsay, and the
reference to the Clintons has no
place in this trial. In addition, the testimony that precedes
these references is coming in. The
disputed testimony adds nothing.
In the second designation at issue (47:3-48:25), Novell seeks to
designate testimony
concerning an e-mail between Mr. Stowell and Ms. O'Gara in which
Novell's counsel asks Ms.
O'Gara about the source of humor in e-mails between herself and Mr.
Stowell. In seeking to
explain the humor in the exchange, Ms. O'Gara explains that Mr.
Stowell is "a Mormon," which
she explains as referring to "those kinds of family values that we're all supposed to admire so
much." This humorous exchange has nothing to do with any
substantive issue in this case, and
Ms. O'Gara's use of the word "Mormon" and the associated reference
has the potential for
extreme prejudice in this jurisdiction -- one way or the other. The
potential for undue prejudice
from this e-mail far outweighs any small, cumulative probative
value to the fact of the exchange
between Mr. Stowell and Ms. O'Gara.
1
HATCH, JAMES & DODGE
March 11. 2010
Page
2
In the lengthy. third set of designations at
issue (64:10-65:3: 66:9-12, 66:17-67:13; 67:23- 69:24), Novell's
counsel points to an e-mail exchange between Mr. Stowell and Ms.
O'Gara concerning the anti-SCO website Groklaw.com and
the fact that she wrote an article about the website concerning the
individual who purportedly started and was maintaining the
website. The testimony is cumulative on the issue of the fact of
e-mail exchanges between Mr. Stowell and Ms. O'Gara and contains no
discussion of any substantive issue in the case. To the contrary,
the discussion about Groklaw has the potential for extreme
prejudice. At the beginning of the trial,. counsel for SCO argued
that "[w]e don't think we need to mention the name of Groklaw or
something like that to make any arguments that relevant in this
trial," and the Court stated: "I would agree. I do want there to be
no temptation for these jurors to be doing research on their
own.... I do not want to do anything that would make it any
easier for a juror in a three-week trial becoming really interested
and trying to find out something on their own." (February 25, 2010.
Pretrial Conference Hearing Transcript at 57.) The Court then
instructed both sides to tell their witnesses not to refer to such
websites by name. (Id, at 58.)
The references in the designations both to
Groklaw and to the question of who really operates the website
creates undue temptation for jurors to pursue their own
research on the issue. That would contaminate the proceedings and
would decimate any prospect of impartiality in any such juror's
mind.
SCO respectfully submits, for all of these
reasons, that the Court should exclude the testimony at issue.
Sincerely yours,
Brent O. Hatch
encl.
c; Michael Jacobs (via
email)
2
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
-------------------------------------------
THE SCO GROUP, INC., a Delaware Corporation,
Plaintiff,
vs. 2:O4CVOOl39
NOVELL, INC., a Delaware Corporation.
Defendant.
-------------------------------------------
VIDEOTAPED DEPOSITION OF MAUREEN O'GARA
Friday, March 23, 2007
11:00 a.m.
Reported by;
Joan Urzia, RPR
JOB NO. 192768
Esquire Deposition Services
26
2003, Exhibit 1080.
A Yes.
Q It looks to me that the way you
reported it, to use the terminology you and
I have started to adopt here--
A Yes.
Q -- you reported one and two, but
not causality?
A Right.
Q Do you agree with that?
A Yes.
Q Why is that?
A I didn't know what to do with
it, quite frankly, and the story wasn't
about -- from my point of view the story
wasn't about that.
Q And why is that?
A Because I'm not a lawyer.
Q You saw no news value in a
statement to you by a Novell executive that
conveyed to you that the reason Novell was
releasing its statement on a particular
date was because SCO was reporting its
quarterly results that same date?
27
A I know that that seems in
isolation like that should be really
important, okay, but there were so many
issues in this very complicated matter that
that would make a great sidebar or a
follow-up maybe, but we were talking about
something else in this story and I
thought -- I didn't know where it was all
going to go, and I've known Chris a long
time. Sometimes I get protective.
Q Did you subsequently convey to
someone at SCO that you had heard from
Chris Stone that the reason Novell had
issued its statement that day was because
SCO -- was to time it with the earnings
announcement?
A As far as I remember, and
according to the evidence in front of me
here, we were breaking this news. Okay?
In the normal course of
reporting, I went back to the other guy,
being SCO, who as far as I know didn't know
anything about this, for a statement.
During the course of my asking
28
for that statement from its public
relations people, as a lever to get that
statement I repeated what Stone had said
to me.
Q What exactly did you state when
you repeated what Stone had said to you?
A Whatever his exact words were at
the time. I'm sorry.
Q Were you reading from notes?
A I don't think you had to because
it was just a sentence.
Q Your best recollection is you
had no notes?
A No, I have notes, but you know,
they're not understandable, they're not
notes like full sentences, they're not
verbatim everything. If I took shorthand,
you'd be handy to have around.
Q Do you have those shorthand
notes still?
A No, I don't do shorthand.
Q I used the word inadvisably.
You're being more precise than I am.
A Yes, yes.
29
Q Do you have the notes of the
short phrases still?
A No.
Q What is your practice of the
short phrases, if you will, in terms of
whether you keep them or not?
A I throw everything out.
Q When do you do that?
A If not when the story is
written, then every week, and I've been
doing that since 1972.
Q When you conferred with the
public relations people at SCO, first of
all, were you conferring with Blake
Stowell?
A Conferring? I don't confer with
the PR people. I called Blake Stowell, yes.
Q What did you mean, why did you
object to the word confer?
A I find it difficult to use that
verb, when I'm talking about a flak, no.
You don't have conferences with PR people.
Q You called him up, you told
30
him --
A From the same phone I talked to
Chris on.
Q You told him what Chris had said
to you and you asked him whether he had any
comment?
A No. I told, I said to them what
I knew, which is the substance of this
story, that the next day that they were
going to issue this cease and desist
letter, and in order to get a statement
from SCO as a lever, I threw in what Chris
had said. It wasn't as scandalous to me as
a regular business reporter than it has
become under these circumstances. Do you
understand what I mean?
Q I'm trying to figure out which
of the -- I think setting aside the
chortling for a minute, we've talked about
three components again, the fact of the
date of the planned issuance of the Novell
statement, the fact of the date of the SCO
earnings release and the causal
relationship between one and two.
31
A Uh-huh.
Q And I'm trying to figure out if
you told SCO one, one and two, or one two
and three.
A If I remember my one, two and
three correctly, the answer is one, two and
three.
Q So then I'll say that in more
colloquial terms, you conveyed to Blake
Stowell that Chris Stone had said to you
A Did I do something with your
wire? Excuse me. Sorry. I moved.
Q You conveyed to Blake Stowell
that Chris Stone had said to you that
Novell was issuing its statement in order
to time its release with SCO's report of
its earnings?
A Among the many things - the
substance of the statement seemed to take
priority under these, in my world the
substance of the statement was the prime
fact. I was trying to get a reaction to
that.
Then when I noticed hesitancy on
32
the part of Mr. Stowell to give me a
reaction to that, I pushed further and used
the expressions that Stone had said to me,
and the substance of which is that the
reason that they were doing it tomorrow was
because you're going to have your earnings
call.
Q And you're confident as you sit
here today, it's 4 years later, that you
didn't embellish on what Mr. Stone had said
to you?
A No.
Q In order to elicit comment from
Mr. Stowell?
A No, absolutely not.
Q You're not confident, or you're
confident you did not?
A I am absolutely confident that I
did not. That would be a lie.
Q Would you regard that as a
breach of your ethics as a journalist?
A Absolutely.
Q It's sort of like
cross-examining a witness when you don't
33
have a basis for the cross-examination?
A Yeah, you guys can do it, but I
can't.
Q We can't either.
So with that in mind, how would
you describe your relationship with
Mr. Stowell?
A As normal.
Q What does normal mean to you?
A All press agents are wary of
somebody like me. So it's like constantly,
it's like cats, you know, or dogs sniffing
each other out constantly. You might know
that dog, but you know, you're not
absolutely, you're never friends with
that -- you know, you don't have friends,
journalists don't have friends, but you
have people that you deal with all the
time.
Q Did you have the impression that
Mr. Stowell regarded you as an ally in the
SCO --
A Never no.
Q Did you convey to Mr. Stowell at
34
any time that you took -- let me start over
again.
How did you view the SCO versus
IBM SCO versus Novell dispute as it was
brewing in the spring and summer of 2003?
A As a good story.
Q Did you believe that you were
taking a particular side in that story?
A I have no side.
Q Did you understand that people
thought you were taking sides during that
period?
A I think that my stories stand
for that. I think that -- I would refer
you to my stories. I don't see any bias in
any of my stories. It's just a completely
objective recitation of the facts.
Q So my question, though, is do
you think that there were, didn't you in
fact -- and I promise you I won't ask you a
question unless I have a basis for it--
didn't you, in fact, receive communications
from people who thought you were taking
SCO's side in the dispute?
35
A If I were to say that most
people can't read, would you understand
what I was talking about?
Q I'm not asking you to defend
yourself at this point.
A I understand that.
Q I'm asking you whether, in fact,
you received those communications.
A When? What's the timing?
Q Well, let me -- I was telling
Mauricio, again, I have a rule against
asking trick questions unless I tell you
it's a trick question. So let me show you
what I'm referring to.
MR. JACOBS: We have another
deposition going on today with
Mr. Levine, so what I propose to do is
to skip to 90.
MR. GONZALEZ: Okay.
MR. JACOBS: And we'll mark this
as 90.
MR. GONZALEZ: You mean 1090.
MR. JACOBS: No, 90. We have a
different numbering. Let's mark it
36
190.
(Whereupon, Exhibit 190 was
marked for Identification.)
MR. JACOBS: 190 is an e-mail
string with the date on the top of
July 20, 2004. So it's after the
period you and I were talking about
before. It's produced by SCO at
1648756 to 759.
A Yeah. So?
Q So this is a string of messages
that you forwarded to SCO, correct?
A I don't, I don't know.
Q Well, do you see the e-mail at
the bottom of 756 from O'Gara to Blake
Stowell?
A I see from Frank somebody or
another to O'Gara.
Q And look at the bottom of the
first page.
A Then I see -- the bottom of the
first--
Q The string is in reverse order.
A Yeah, I see. I don't know what
37
the context is.
MS. FOLEY: Just actually listen
to the question that he asked.
THE WITNESS: Sorry.
MS. FOLEY: The question again
was?
Q You forwarded an e-mail string
that you received to Mr. Stowell at SCO,
correct?
A No.
MS. FOLEY: The question is does
the document reflect that.
A I guess so.
Q Well, you don't have a
recollection?
A I don't remember it, you know, I
get lots of e-mails. So what?
Q Well, I guess my question is so
what, why did you forward this string of
e-mails from Frank Jalics, J-A-L-I-C-S, in
which he accused you of being on, in a
nutshell, on SCO's side--
A Yeah.
Q -- why did you forward that to
38
SCO under an e-mail "I want war pay"?
MR. GONZALEZ: Objection.
A I don't remember the context of
the thing, but--
MS. FOLEY: Do you remember why
you forwarded it?
THE WITNESS: No.
Q Does it strike you as peculiar
that a journalist would forward to one of
the sides in a dispute a string of e-mails
she got from a reader?
A I don't know what the right
answer to that question is because I don't
know the context.
Q Well, what's the context here?
A I'm probably just complaining
about getting this kind of crap all, you
know, all the time.
People who can't read and don't
know what the heck is going on and got it
wrong to begin with just, you know, saying
that, you know, you think you've got it
tough, Blake, you should see it from my
side. That's no big deal.
39
Q So Jalics says to you in the
July 19th e-mail--
A July 19, is that the beginning?
Q It's towards the beginning, yes.
It's on the bottom half of 758.
A July 19th, wait a second. Yeah,
About being Hillary to their Bill Clinton?
Q Yes. To be precise, he says,
"You take SCO's side like Hillary took Bill
Clinton's side when he was being accused of
fooling around with Monica."
Do you see that?
A Yes.
Q And then he goes on to explain
why he thinks you are being taken in by
SCO's story.
Do you see that?
A Yes.
Q And then you responded to him
with a clarification of what you thought
SCO was alleging in the dispute.
Do you see that?
A I don't think what they're
alleging -- all right. I see my reply,
40
yes.
Q And it reads, 'SCO needs AIX and
DYNEX because it is charging IBM with
copying AIX and DYNEX line for line into
Linux. It is not charging IBM with copying
UNIX line for line into Linux. It is
charging IBM with copying derivative copy
line for line into Linux.
Do you see that?
A Yes.
Q So you were trying to clarify
for him what you understood the dispute was
about?
A Isn't that what the dispute was
about at that time?
Q I'm not challenging that.
A Okay.
Q I'm just characterizing what you
were doing.
A Right, okay.
Q And then he goes on and again
sort of disputes your reporting on the case
in his July 20th e-mail, do you see that?
He says, "What makes you want to
41
believe SCO when every time they show up to
a different court or to the same court on a
different day their story keeps changing?
When they filed the suits in the IBM case,
did you know it was primarily a contract
dispute and not really about contract
copyright infringement? When they filed
the suit against Auto Zone, did you realize
that it was really about them thinking that
Auto Zone might have ported some static
libraries to Linux? SCO hired some
competent lawyers that they are able to
convincingly argue that the moon is made of
green cheese, but that doesn't mean that
they have the evidence to back it up,
Frank."
Do you see that?
A Uh-huh.
MR. GONZALEZ: Objection to the
scope.
Q And then you forward that string
to Mr. Stowell and with what I took to be
kind of a humorous remark, I want war pay.
A Right.
46
part of the deposition. This one I'm going
to show you about is back to October 2004.
So this will be 192. Do you have it?
A No, I don' t.
(Whereupon, Exhibit 192 was
marked for Identification.)
MR. JACOBS: Why don't you hold
192 and we'll mark another one as 193,
(whereupon, Exhibit 193 was
marked for identification,)
Q So 193 is an e-mail string that
ends on August l1, 2003 produced by SCO
under 143593 to 595.
A Yeah.
Q And 192 is an e-mail string
ending October 22, 2004 ending under SCO
1648173 to 176. Let me ask you about 193
first.
MS. FOLEY: Have you had a
chance to look at it, 193?
A I'm sorry, I'm looking here--
oh, I'm sorry, I' ll looking at 192.
Q That's all right. Take a look
at 193 now.
47
A Yes.
Q So 193 is an e-mail string
between you and Stowell about a couple of
issues, but what I want to focus attention
on is the most recent two e-mails in the
string. It seems to me you're joking with
him about the subscription costs to Linux
Graham and you say I'll make you a special
price.
Do you see that?
A Uh-huh.
Q And that's on August 11, 2003,
do you see that?
A Uh-huh.
Q And then you again, I think in
humor -- I'll accept it as in humor-- you
say "you're so cute" and then you say "and
your politics are sensible and should be
rewarded." I didn't see the humor in that.
I was wondering what you meant by it.
A He's a mormon.
Q And therefore?
A It has a tendency to have like,
you know, those kindS of family values that
48
we're all supposed to admire so much.
Q And that's what you meant by politics?
A Isn't that what that is?
Q I don't know, I'm asking you. What did you mean by politics?
A That's what I would say.
Q Family values? Yeah.
Q And what do you mean by it should be rewarded?
A A lot of people are -- oh, come; on, you know, It's meaningless. There's nothing there. It's just chatter.
Q And then he reports back, "Ah, shucks, I'm blushing now."
Do you see that?
A I guess that's because I said he was cute, I call most people lamb chop. Most guys think they're the only ones I say it to. I've got 2000 senior executives in the computer industry who think they' re the
only ones I call lamb chop. Come on,
honey.
49
Q I'm feeling left out.
A Let's deal with this. You know,
I mean, it's a dog eat dog world out there.
Q Yeah, and I think I saw all of
that except the focus on politics. That
seemed like an odd word in this context.
A I don't know. We were talking
about other kinds of things. You know, you
have to talk about other subjects with
people and he was probably telling me about
his kids and, you know, local school
election or whatever. It's--
Q So this was just chatter?
A This is just chatter. This is
southern bell kind of chit chat, you know,
just keep talking and maybe you'll get what
you want, whatever it is.
Q So then on 192, Dean Zimmerman
at SCO writes to Blake Stowell and writes,
"Am I impressed you actually got Maureen
O'Gara to say something that was, well,
nice about SCO."
Do you see that?
A Yes, I do.
62
Ms. O'Gara that Sun Micro Systems had
purchased a different type of license that
IBM had and that SCO had concluded that Sun
Micro Systems was not in breach of that
license. I did not say that SCO was giving
Sun Microsystems a hall pass on IP
tampering. I never stated, I never said
that I had not read the other licensing
UNIX agreements."
Do you see that in this
declaration?
A I saw it.
Q And then in your article you
went on to write, "At the time, and this
was a week ago, he had spent more time
talking to us than to IBM that there had
been no contact. He figures IBM's strategy
will be to go for a dismissal on the
grounds that what he's charged IBM with so
far are, is not a cause of action and are
conclusions, not facts. He seems
relatively unperturbed at the prospect. He
also gave Sun a hall pass on IP tampering
calling it's 'clean as a whistle' because it
63
paid all that money once upon a time for
UNIX. As for everybody else, well he
hadn't gotten around to reading their
agreements yet."
Do you see that?
A Yes.
Q And do you stand by your story?
A I stand by my story.
Q You were accurately reporting in
your story what Mr. Heise said to you?
A Yes.
Q And to the extent that his
declaration disclaims what you reported in
your story, his declaration is incorrect?
MS. FOLEY: Object to the form
of the question. I'm going to direct
the witness not to answer that
question.
Q Are you going to follow your
counsel's instruction?
A That's why she's here.
Q Now let's look at what we'll
mark as 196.
(Whereupon, Exhibit 196 was
64
marked for identification.)
A Why does the print keep getting
littler and littler?
MR. JACOBS: I seem to be shy a
copy of this one.
MR. GONZALEZ: Maybe I can just
look at it and give it back to you.
MR. JACOBS: Yes.
Q So this is an e-mail to you
dated May 30, 2005, Exhibit 196; produced
under SCO 1647696 to 697.
Do you see that?
A I don't see a date on it,
Q Right at the top.
A Oh, there it is, okay.
Q And the subject is, "I need you
to send a jab PJ's way."
A Okay.
Q Do you see that?
A Uh-huh.
Q Who is PJ?
A PJ is the purported author of
the Groklaw site.
Q What is the Groklaw site'?
65
A It is a website that follows the
SCO case -- I should say cases maybe but,
Q Did you have a view in March of
2005 about whether PJ or the Groklaw site
was a reliable source of information on the
SCO litigation?
A Yes.
Q What was your view?
A It was not reliable.
Q And what was the basis for that?
A It is a propaganda site.
Q Propaganda in what sense?
A It's unbalanced.
Q In contrast to what you believe
you were doing?
A In contrast to what anybody is
doing.
Q But more particularly your
reporting?
A I suppose you could compare it
to my reporting.
Q And in comparison you felt you
were balanced or more balanced compared to
her reporting?
66
A She's not reporting. That's not
reporting. Reporting has to do with facts
She is writing a piece. It's an editorial
or editorializing.
Q And that was the view you held
in March 2005?
A Yes,
Q And then you did, in fact, write
a story about PJ or Pamela Jones, didn't
you?
A Yes.
MR JACOBS: Let's take a look
at that. We'll mark this as 197.
(Whereupon, Exhibit 197 was
marked for identification.)
Q So in 196, Stowell says in the
subject line, "I need you to send a jab
PJ's way," and that's March 30, 2005?
A Yes.
Q And 197 is your May 9 to 13,
2005 issue of Client Server News 2000
correct?
A Yeah.
Q And the lead story is "Who is
67
Pamela Jones," correct?
A Yeah.
Q Is there a causal relationship -
between Blake Stowetl's e-mail to you and
the appearance of the story in Client
Server News 2000, May 9 to 13, 2005?
A No.
Q You did it independently, you
did the story on PJ--
A I have reason to do a story on
Pamela Jones that has nothing to do with
SCO.
Q Nothing to do with SCO asking
you to?
A It has nothing to do with SCO.
It's a matter of my own personal integrity.
She called it into question.
Q That's what prompted this
article?
A That's what prompted my interest
in finding out who she was, yes.
Q And in that article you said, "A
few weeks ago, I went looking for the
elusive herodin who supposedly writes the
68
Groklaw about the SCO v. IBM suit."
Do you see that?
A Uh-huh.
Q What is a herodin?
A I suppose we could look it up in
the dictionary.
Q Why did you use the word?
A Because it's accurate.
Q And in what way is it accurate?
A Have you read Groklaw?
Q I'm sorry, I get to ask the
questions.
A If you read Groklaw, you would
know that herodin is the right word. There
is a difference between a good word and a
right word.
Q See if you agree with this
definition--
MR. GONZALEZ: Again, Objection
to scope.
Q Herodin, noun, a woman regarded
as scolding and vicious.
A Uh-huh.
Q Is that a definition that
69
applies to your use of the word herodin?
A I think it's accurate.
Q Scolding and vicious?
A Uh-huh.
Q As you sit here today, do you have any regrets over printing 197?
A No.
MR. GONZALEZ: Objection -
Q Do you have any regrets about finding the identity, reporting information, personal information about Pamela Jones?
A No.
Q And again, "Who is Pamela Jones" had nothing to do, the story on 197, your testimony is that it had to do with Blake Stowell's March 30, 2005 e-mail with the subject "I need you to send a jab PJ's way?
A I think he defines what the jab would be, which is something that we ignored, you know.
Q The answer is?
A No.
Q Now let me show you a document.
