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| Novell files Offer of Proof Re Prior Inconsistent Declaration of Sabbath |
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Tuesday, March 16 2010 @ 07:49 AM EDT
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Novell has filed a Notice of Filing of Offer of Proof Regarding Prior Inconsistent Declaration of Steven Sabbath. It is making a record that SCO was allowed to present testimony in direct examination that Novell knew was contradicted by deposition testimony, but then Novell couldn't tell the jury about it, because of rulings by the judge. I gather Novell has noticed what you have, that the judge's ruling was not fair to Novell.So they are making a record, listing very thoroughly why the deposition is allowable under the rules, how they would have used it to rebut SCO's witnesses, and precisely how the materials are contradictory. This may be related to the discussion we heard about yesterday, where it was discussed if Ms. Madsen would have to return. It surely will be part of any appeal, should it prove necessary. But the judge can simply change his ruling, solving the issue.
Here's the Novell filing:
03/15/2010 - 801 - NOTICE OF FILING of Offer of Proof Regarding Prior Inconsistent Declaration of Steven Sabbath filed by Defendant Novell, Inc.. (Attachments: # 1 Attachment-Novell Trial Ex. Y23)(Brennan, Sterling) (Entered: 03/15/2010)
I have never seen that happen before, where you are not allowed to impeach a witness by referring to a prior deposition where the witness said something very different from what he says on the witness stand. Here's what our reporter, Chris Brown, says happened yesterday:
Mr. Jacobs asks Ms. Madsen if she's aware that Mr. Sabbath made a deposition statement directly contradicting her? Objection by Mr. Normand. Mr. Jacobs told the judge that it was his understanding that statements outside the courtroom could be used to impeach the witness. Mr. Normand, it was his understanding no. Objection sustained....
Mr. Jacobs asks for a sidebar to discuss recalling Ms. Madsen in the future. They do so. Afterwards Judge Stewart asks Mr. Normand if he has anything more for her and he says no. Judge Stewart then asks Ms. Madsen about what inconvenience it would be calling her again. She indicated she has two children missing school and an infant in the hall. She said her employer would not be happy with her coming back. Judge Stewart says she would not be called for a number of days and she can return to California, but that she can likely expect to be called back.
Mr. Normand than asks for another sidebar to discuss further after having heard her responses. They do so again. The judge then asks her if she has a flight at 3pm today? Yes. He asks her to stay around but it'll at least be by 1:30pm....
[Steve Sabbath testifies.] Judge Stewart then called a 20-minute break.
After returning, and before the Jury was brought back in, there were more discussions. Judge Stewart said that he read as much as he could during the break of Mr. Sabbath's declaration and said that on its own it rebuts Ms. Madsen and he sees no need to bring her back. Mr. Jacobs wishes to do so in front of the jury and read paragraphs from his declaration that include his contradictions.
Mr. Jacobs states that Mr. Sabbath had the declaration in front of him during his deposition and referred to it. Therefore the jury should be able to see that document as it would be in court.
Judge Stewart asks doesn't Novell have him saying as much verbally during the deposition? Mr. Jacobs admits that they did not have him read his declaration aloud during the deposition. Judge Stewart says Novell may not read it aloud to the jury and that he's not going to make up for what counsel failed to do during the deposition....
[Darl McBride testified.] Then, after the jury had departed, he remained to discuss issues. Novell to file something (motion? declaration?) regarding declaration of Steve Sabath. It seemed it was something of a formality to get something on the record. Here is the filing, with the only change being I didn't chop up the charts with page numbering.
********************************************
Sterling A. Brennan (Utah State Bar No. 10060; E-mail
David R. Wright (Utah State Bar No. 5164: E-mail)
Kirk R. Harris (Utah State Bar No. 10221; E-mail)
Cara J. Baldwin (Utah State Bar No. 11863; E-mail)
[address, phone, fax]
MORRISON & FOERSTER LLP
Michael A. Jacobs (Admitted Pro Hac Vice; E-mail)
Eric M. Acker (Admitted Pro Hac Vice; E-mail)
Grant L. Kim (Admitted Pro Hac Vice; E-Mail)
Daniel P. Muino (Admitted Pro Hac Vice; E-Mail)
[address, phone, fax]
Attorneys for Defendant and Counterclaim-Plaintiff Novell, Inc.
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
THE SCO GROUP, INC., a Delaware
corporation,
vs.
NOVELL, INC., a Delaware corporation,
Defendant.
___________________
Case No. 2:04 CV00139
NOVELL'S OFFER OF PROOF
REGARDING PRIOR INCONSISTENT
DECLARATION OF STEVEN
. SABBATH
Judge Ted Stewart
______________________
On March 15, 2010, SCO called as a witness Kimberlee Madsen, a paralegal working for
Steven M. Sabbath at the Santa Cruz Operation ("Santa Cruz") in 1995 and 1996. SCO was
permitted on direct examination to question Ms. Madsen as to whether several out-of-court
statements in documents of which she was not the author comported with her understanding of
the transaction between Santa Cruz and Novell in 1995. However, Novell was not permitted on
cross examination to question Ms. Madsen as to whether statements made under penalty of
perjury in a declaration of Mr. Sabbath, her superior in 1995, comported with her understanding
of the same transaction.
Novell also intended to read to the jury portions of Mr. Sabbath's declaration during the
playing of his videotaped deposition testimony. These portions are prior inconsistent statements
that impeach the videotaped testimony of Mr. Sabbath that was displayed by SCO.
Pursuant to Federal Rule of Evidence 103(a)(2), Novell makes this offer of proof
regarding the December 22, 2003 declaration of Steven M. Sabbath, marked as Novell Ex. Y23
and attached for reference, setting forth the evidence the jury would have heard had Novell been
permitted to proceed as set out above. The statements at issue within Mr. Sabbath's December
22, 2003 declaration are admissible under Federal Rule of Evidence 801(c) as, consistent with
the Court's holding allowing similar questioning by SCO, the statements would not have been
used with respect to Ms. Madsen's testimony to establish the truth of the matters asserted, but to
establish her understanding of the transaction between Santa Cruz and Novell, thus they are not
hearsay. The portions of Mr. Sabbath's 2003 declaration that Novell intended to read to the jury
during the playing of Mr. Sabbath's videotaped deposition testimony are admissible as non-hearsay under Federal Rule of Evidence 801(d)(1)(A), as Mr. Sabbath unequivocally lays the
foundation for the declaration in his deposition, the declaration is flatly inconsistent with the
very deposition testimony presented by SCO to the jury, and the declaration was given under
oath subject to penalty of perjury.
1
A. Testimony of Kimberlee Madsen
On direct examination, SCO was permitted to repeatedly question Ms. Madsen regarding
the content of out-of-court statements that she did not draft. These documents were all accepted
into evidence and published to the jury. Ms. Madsen was asked whether various statements
within these documents comported with her understanding of the 1995 transaction between Santa
Cruz and Novell.
By the same token, Novell intended to ask Ms. Madsen questions regarding the content of
the declaration of Steven M. Sabbath. Mirroring SCO's direct examination, Novell would have
asked Ms. Madsen whether various statements within Mr. Sabbath's declaration comported with
her understanding of the 1995 transaction. Used for this purpose, the statements are not hearsay
under Federal Rule of Evidence 801(c). As of 1995, Mr. Sabbath had roughly fifteen years more
experience in the legal industry than did Ms. Madsen. Mr. Sabbath was the General Counsel of
the company at which Ms. Madsen was a paralegal. Mr. Sabbath was Ms. Madsen's direct
superior, including in the very transaction at issue. If the question "does this statement comport
with your understanding" is relevant as posed by SCO regarding out-of-court statements in legal
and regulatory filings not drafted by Ms. Madsen, certainly the same question as posed by Novell
regarding statements made under penalty of perjury by Ms. Madsen's direct superior in the
transaction at issue is relevant.
If Novell had been permitted to question Ms. Madsen consistent with what was permitted
of SCO on direct examination, Novell would have cross-examined Ms. Madsen regarding the
following statements in Mr. Sabbath's declaration, each of which is relevant to challenge a
particular area of Ms. Madsen's understanding to which she testified.
2
|
Area of Madsen Testimony | Ex. Y23 Portion Novell Intended to Use in
Cross-Examination |
|---|
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Santa Cruz acquired UNIX and UnixWare businesses. | "Initially, Santa Cruz was interested in
purchasing both of [the UNIX and UnixWare]
businesses. However, the royalty stream
associated with the UNIX System V software
licensing business led to a total valuation for
both businesses that Santa Cruz could not
afford. Therefore, Santa Cruz proposed that
Novell retain the legacy UNIX System V
licensing business and Santa Cruz purchase
only the UnixWare business. Under this
proposal, Santa Cruz would administer the
collection of royalties under the UNIX System
V license agreements and pass through these
royalties to Novell for a fee."
(Ex. Y23 ¶ 10). |
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Santa Cruz acquired all right, title, and interest, including copyrights. | "Under the Asset Purchase Agreement, Novell
retained significant UNIX-related assets
following the sale. For example, Schedule 1.1(b) of the asset purchase agreement provided that much of the UNIX System V intellectual property would not be transferred to Santa Cruz by listing the following items as "Excluded Assets": V. Intellectual Property: A. All copyrights and trademarks, except for the trademarks UNIX and UnixWare. B. All Patents."
(Ex. Y23 ¶ 11). "It is my understanding, based upon my review
of Plaintiff's amended complaint, that Plaintiff
claims to have acquired all right, title and
interest in and to UNIX System V operating
system source code, software and sublicensing
agreements, together with copyrights,
additional licensing rights in and to UNIX
System V, and claims against all parties
breaching such agreements. I understand that
Plaintiff also claims to control the right of all
UNIX vendors to use and distribute UNIX
System V. I believe that these claims are
incorrect. As described above in relation to the
Related Agreements and Amendment No. 2,
Novell retained certain rights under the UNIX
System V licensing agreements, as well as
certain UNIX System V intellectual property as
described above."
(Ex. Y23 ¶ 29). |
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Section 4.16B must be read in a more limited fashion than its plain language dictates in light of the intent of the agreement. | "Although Amendment No. 1 made several
changes to Section 4.16, it did not impose any
new limits on Novell's ability, at its sole
discretion, to amend, modify, supplement or
waive any rights under, or assign any rights to,
the legacy UNIX System V license agreements
in any manner or respect. Furthermore, I am
not aware of any provision in the Asset
Purchase Agreement, or any amendment
thereto, that imposed on Novell any obligation
to preserve the confidentiality of the UNIX
System V source code for the benefit of Santa
Cruz."
(Ex. Y23 ¶ 13). |
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Copyrights were required for the business and essential to the transaction. | "As discussed above, the fundamental business
deal reflected in the Asset Purchase Agreement
was that Santa Cruz would acquire Novell's
UnixWare business and Novell would
effectively retain the legacy UNIX System V
licensing business. My understanding was that
the language in Amendment No. 2 quoted
above was intended to implement this business
deal with respect to copyrights and trademarks.
So far as I know, neither Santa Cruz nor
Novell ever identified the specific copyrights
or trademarks for which a transfer of
ownership was `required' for Santa Cruz to
exercise its rights with respect to the
acquisition of UNIX and UnixWare
technologies. I do not know whether Novell
ever executed an instrument of assignment to
transfer ownership of specific copyrights or
trademarks to Santa Cruz, nor do I know
whether such an instrument was required in
order to effect the transfer."
(Novell Ex. Y23 ¶ 26).
"I believe that Santa Cruz assigned little, if
any, of the value of the acquisition to any
copyrights that it might have acquired from
Novell."
(Novell Ex. Y23 ¶ 28). |
5
B. Testimony of Steven Sabbath
In addition to its questioning of Ms. Madsen as detailed above, Novell intended to read to
the jury portions of the 2003 declaration of Mr. Sabbath as prior inconsistent statements to
impeach the videotaped deposition testimony that was shown to the jury by SCO. Used for this
purpose, the statements are not hearsay under Federal Rule of Evidence 801(d)(1)(A). ¶¶ 10, 11,
12, 13, 23, 26, 28, and 29 of the attached Novell Ex. Y23 would have been read to the jury. Each
of these paragraphs was stated in a declaration by Mr. Sabbath under penalty of perjury and
directly conflicts with the videotaped deposition testimony of Mr. Sabbath presented to the jury
by SCO.
|
Sabbath Deposition Testimony Displayed by SCO | Ex. Y23 Portion Novell Intended to Use to
Impeach |
"We were buying the entire business, including the intellectual property."
(Sabbath 2-12-07 20:5-9)
"[C]opyrights were going with the assets."
(Sabbath 2-12-07 24:24). |
"Santa Cruz proposed that Novell retain the
legacy UNIX System V licensing business and
Santa Cruz purchase only the UnixWare
business." (Ex. Y23 ¶ 10).
"Under the Asset Purchase Agreement, Novell
retained significant UNIX related assets
following the sale. For example, Schedule
1.1(b) of the Asset Purchase Agreement provided that much of the UNIX System V intellectual property would not be transferred to Santa Cruz...."(Ex. Y23 ¶ 11). "It is my understanding...that Plaintiff claims to have acquired all right, title and interest in and to UNIX System V operating system source code, software and sublicensing agreements, together with copyrights,
additional licensing rights in and to UNIX
System V, and claims against all parties
breaching such agreements. I understand that
Plaintiff also claims to control the right of all
UNIX vendors to use and distribute UNIX
System V. I believe that these claims are
incorrect. As described above in relation to the
Related Agreements and Amendment No. 2,
Novell retained certain rights under the UNIX
System V licensing agreements, as well as
certain UNIX System V intellectual property as
described above."
(Ex. Y23 ¶ 29). |
Agreed with 2004 declaration in which he stated, "I understand that IBM has argued that Section 4.16(b) of the APA gave Novell the right to require Santa Cruz to waive any breach of the intellectual property protections provided in the SVRX licenses. That argument is contrary to the intent of paragraph 4.16(b) as I understood it."
(Sabbath 2-12-07 67:9-25). |
"Section 4.16(b) of the Asset Purchase
Agreement included the following language
providing that Novell would have the right, at
its sole discretion, to amend, modify,
supplement or waive any rights under, or
assign any rights to, the UNIX System V
license agreements . . . . Since Novell would be
retaining the right to receive the royalties under
the UNIX System V licenses, it was agreed
that Novell also would retain certain rights to
control the contractual relationships with the
licensees."
(Ex. Y23 ¶ 12).
"Although Amendment No. 1 made several
changes to Section 4.16, it did not impose any
new limits on Novell's ability, at its sole
discretion, to amend, modify, supplement or
waive any rights under, or assign any rights to,
the legacy UNIX System V license agreements
in any manner or respect."
(Ex. Y23 ¶ 13).
"Furthermore, since the process set out in
Amendment No. 2 applies only in the context
of a royalty buy-out, Novell has the right, at its
sole discretion, to direct Plaintiff to amend,
modify, supplement or waive any rights under,
or assign any rights to, any `SVRX Licenses,'
as defined in the amended Asset Purchase
Agreement, without complying with the
process set out in Amendment No. 2 (and, if
Plaintiff fails to do so, to take such action on
Plaintiff's behalf) . . ."
(Ex. Y23 ¶ 23). |
Confirmed that he reviewed and approved 2004 declaration in which he stated that "Amendment Number 2 was intended to confirm, among other things, the parties' intent that SCO would obtain ownership of the UNIX copyrights under the APA."
(Sabbath 2-12-07 208:20-209:5). |
"Novell would effectively retain the legacy
UNIX System V licensing business. My
understanding was that the language in
Amendment No. 2 quoted above was intended
to implement this business deal with respect to
copyrights and trademarks. So far as I know,
neither Santa Cruz nor Novell ever identified
the specific copyrights or trademarks for which
a transfer of ownership was `required' for
Santa Cruz to exercise its rights with respect to
the acquisition of UNIX and UnixWare
technologies."
(Ex. Y23 ¶ 26).
"I believe that Santa Cruz assigned little, if
any, of the value of the acquisition to any
copyrights that it might have acquired from
Novell."
(Ex. Y23 ¶ 28). |
DATED: March 15, 2010
Respectfully submitted
By: /s/ Sterling A. Brennan
WORKMAN NYDEGGER
Sterling A. Brennan
David R. Wright
Kirk R. Harris
Cara J. Baldwin
MORRISON & FOERSTER LLP
Michael A. Jacobs, pro hac vice
Eric M. Acker, pro hac vice
Grant L. Kim, pro hac vice
Daniel P. Muino, pro hac vice
Attorneys for Defendant and
Counterclaim-Plaintiff Novell, Inc.
9
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| Authored by: nattt on Tuesday, March 16 2010 @ 08:17 AM EDT |
I'm still trying to get over the shock of this actually happening. Thanks again
to
PJ and the court reporters bringing this to us as it happens.[ Reply to This | # ]
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| Authored by: jesse on Tuesday, March 16 2010 @ 08:21 AM EDT |
| thanks [ Reply to This | # ]
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| Authored by: DaveJakeman on Tuesday, March 16 2010 @ 08:23 AM EDT |
| [ Reply to This | # ]
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| Authored by: jesse on Tuesday, March 16 2010 @ 08:24 AM EDT |
| Thank you... [ Reply to This | # ]
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| Authored by: jesse on Tuesday, March 16 2010 @ 08:26 AM EDT |
| Thank you. [ Reply to This | # ]
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| Authored by: jesse on Tuesday, March 16 2010 @ 08:26 AM EDT |
| Thank you [ Reply to This | # ]
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| Authored by: jesse on Tuesday, March 16 2010 @ 08:28 AM EDT |
| Many thanks for taking the time to follow, and forward. [ Reply to This | # ]
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| Authored by: Jimbob0i0 on Tuesday, March 16 2010 @ 09:10 AM EDT |
Since a lot of people (myself included) tend to hover on the 'current'
article for comments i thought I'd copy/paste my comment here from the last
article as I would be interested in feedback....
Mr. Singer
states that this was also part of a Novell press release. He shows the press
release and highlights where Novell states the copyrights were not conveyed to
SCO, that contrary to SCO's assertions, SCO does not own the copyrights. What
was the effect on SCO? Mr. McBride states that there was an immediate effect
that day, their stock dropped 25% that day, that the statement achieved a lot of
press. He had to go to New York to meet with their largest shareholders to
reassure them that SCO owned the copyrights. Then while in NY he received a call
from his secretary saying "You've got to see this." It was Amendment 2.
He said it cleared up a lot of questions he'd had. He then called Novell's Jack
Messman on June 5th. Jack reiterated on the phone that Novell owns the
copyrights.
As I read that it looks like he did not know about
Amendment 2 when the original claims by him/SCO were made to the public. It was
was when he was in NY reassuring the shareholders that he got a call from his
secretary saying "you have to see this" and that item being amendment
2....
Given that the appeals court have already said that the APA prior to
Amendment 2 is unambiguous in *NOT* transferring the copyrights that implies the
claims of title were made without knowledge of Amendment 2 for Darl/SCO ... and
therefore against the facts as known at the time and slanderous and fraudulent
as a result... or am I missing something here? After all Darl would never lie to
the Jury - right?
I can't wait till Novell get to cross examine him later on
today.... [ Reply to This | # ]
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| Authored by: mattflaschen on Tuesday, March 16 2010 @ 09:29 AM EDT |
| Sabbath certainly appears to be an interesting witness. Does anyone know if we
currently have (at all) the deposition where he apparently
called one of his own declarations, "quick and dirty" and "close enough for
government work", or the text version of the current declaration Novell's
citing. [ Reply to This | # ]
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| Authored by: kinrite on Tuesday, March 16 2010 @ 09:49 AM EDT |
Sabbath's declaration was taken in connection with The SCO Group v IBM case.
---
"Truth is like energy...it can not be created, nor destroyed"[ Reply to This | # ]
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| Authored by: DaveJakeman on Tuesday, March 16 2010 @ 10:01 AM EDT |
They edited the tape!
Novell's Offer of Proof is very revealing: the December 22, 2003 declaration of
Steve Sabbath differs significantly from the edited deposition video SCO
presented in court. No wonder Judge Stewart doesn't want the jury to see it, it
would sink SCO's case! Can't have that, can we?
I don't see it mentioned what date the deposition the edited story of which SCO
presented was taken. What happened to Steve Sabbath between December 22, 2003
and then (whenever "then" was) to get him to change his story?[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, March 16 2010 @ 10:09 AM EDT |
The way that Judge Stewart is so blatantly biased against Novell takes ones
breath away. How do "the finders of fact" supposed to find facts if
the judge does not allow them to see all of the facts. Outrageous!
I am so glad that Novell has filed this offer of proof. At this point, they
really need to operate on the assumption that "the fix is in". Of
course, we can't know whether "the fix is in" or not. However, since
there is no better rational explanation, it is now imperative that Novell just
assume that "the fix is in" and act accordingly.
They need to make filings such as this one for each and every impartial act that
the judge makes. There needs to be a permanent record of this judges biases for
all to see.
The funny thing about the judge taking all of these biased positions is that it
is all for naught. Linux does not infringe on any Unix copyrights to begin
with. This is just a big side show. What a silly thing for a judge to waste
his reputation for. [ Reply to This | # ]
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| Authored by: deck2 on Tuesday, March 16 2010 @ 10:09 AM EDT |
This "motion" by Novell will be turned down too.
When Judge Stewart's apparant bias to tSCOg in his first few rulings was posted,
I called that the fix was in. With what has happened within the last week and a
half, I am still of an opinion that something is up. However, as some posters
have made reference to, it may be that Judge Stewart wants to get rid of this
mess handed to him by the 10th Circuit Court of Appeals by handing it back to
them. Novell will be able to go back to the 10th CoA with this wheelbarrow load
of horse puckey and possibly a legal "bombshell" planted in it. Maybe
they will change their opinion.
I hope that SCOTUS takes the case and plants a stake in the black heart of
tSCOg's dreams.[ Reply to This | # ]
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| Authored by: webster on Tuesday, March 16 2010 @ 10:26 AM EDT |
.
Let us hope that when we are in the Novell part of the trial, the Judge will
lean their way. The admission of prior court rulings and the impeachment of
Sabbath issues are guided by rules. But a lawyer often has to remind his client
that the answer to most of his questions is: "It's up to the judge."
Most unfortunately on this impeachment issue, the judge doesn't cite prejudice,
rules or fairness. The basis must be his schedule or worse.
SCO slipped up but the judge protected them from counter attack on the grounds
that admitting the reality of judicial rulings would be prejudicial more than
probative of SCO arguments.
Supposedly Novell slips, but tries to cure immediately. The judge does not
permit them on the basis of a timing gotcha. What about prejudice, fairness and
probative value, judge? Not a mention. A judge would never limit such valid
cross in a criminal trial.
. [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, March 16 2010 @ 10:27 AM EDT |
I think this is a good / solid question that Novell should
have every right to ask any of SCO's (live) witnesses AND the
judge should not be able to sustain a SCO objection to it.
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, March 16 2010 @ 10:32 AM EDT |
| I like this, but I thought Novell couldn't refer to the previous ruling. [ Reply to This | # ]
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| Authored by: RFD on Tuesday, March 16 2010 @ 10:35 AM EDT |
| Novell included Steve Sabbath on its "May Call" witness list--Exhibit A-2
to 755
I suspect the
Novell probably will call him. ---
Eschew obfuscation assiduously. [ Reply to This | # ]
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| Authored by: billyskank on Tuesday, March 16 2010 @ 10:35 AM EDT |
is the judge basically only allowing evidence that favours SCO, and disallowing
all the evidence that favours Novell?
---
It's not the software that's free; it's you.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, March 16 2010 @ 11:05 AM EDT |
If you want a ruling, you have to file a motion.
This is a notice, not a motion. Novell knows the rules, they aren't expecting a
changed ruling on this.
Judge Stewart keeps telling Novell that they should have more properly prepared
their case during the appeal.
Therefore, Judge Stewart need not ask why Novell is laying down target range
markings all around him...
cpeterson, WINAL[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, March 16 2010 @ 11:06 AM EDT |
If a mistrial is declared or Novell appeals, SCO will run out of money and Yarro
will take control.
Is it the job of the trustee to ensure that SCO makes all payments and doesn't
pay for pizza instead of paying Yarro.
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, March 16 2010 @ 11:10 AM EDT |
What went before led a number of people to question Stewart's objectivity and
impartiality in this case.
I think that now, bias is no longer in
question; it's established. Stewart is going to make sure that SCO wins this
trial, as far as lies within his (considerable) power. Why, I have no
idea.
Novell's only chance is an appeal.
So the best scenario we
can hope for is:
- Novell's appeal: maybe June? sending the case back for
trial;
- Another jury trial, with Stewart's biased decisions corrected;
Novell would win this; maybe September?
- SCO appeals; maybe
January?
So this appalling, expensive FUD-train will likely go on
into 2011. [ Reply to This | # ]
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| Authored by: jacks4u on Tuesday, March 16 2010 @ 11:47 AM EDT |
so, ... at what point can Novell claim with certainty and legal foundation, that
this jury is so poisoned by a) mischaractarazations, false testimony and wilful
omissions of evidence, and judicial misconduct that a fair trial is not
possible? [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, March 16 2010 @ 12:28 PM EDT |
Ok, I officially agree with Harvey. I couldn't find the answer from Groklaw. I
had to google it.
Quoting from wikipedia. Hope this is fair use, I tried to include only what was
necessary for our understanding and analysis, but it's a good half of the
article. I didn't want to paraphrase, in case, I used the wrong word and changed
the meaning, IANAL.
"An offer of proof is a kind of motion that a lawyer may present to a judge
or to the official presiding over an administrative hearing.
In the context of a trial or a hearing, a presiding judge may issue a ruling
denying a party the right to proffer evidence. The party aggrieved by this
ruling then has the right to indicate for the record what the evidence would
have shown had the adverse ruling not been issued. This is necessary in order to
preserve the issue for appeal.[1][2]
In jury trials, offers of proof may be made outside the hearing of the
jury.", etc.
So, Novell HAD to do this, to preserve it for appeal.
Warning rant follows, read at your own risk. Which in my mind is crazy. There is
not room for justice in a American legal systems. It happens only if you get the
right lawyers. Being denied an appeal right because you didn't catch something
or didn't know you needed to do some procedure, in a certain way, or lose the
right forever. How can the courts be so blinded by procedure and "you have
to say it like this or it doesn't count" and deny just and impartial
rulings. How is this in any way in keeping with the Constitution's ban on cruel
and unusual punishment. I can think of nothing crueler or unusual punishment
than being denied justice. I''m sure the founding fathers never envision this
purpose for the courts. RAAGHHH!!!! I have to stop now. Just makes me so mad.
-- Celtic_hackr[ Reply to This | # ]
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| Authored by: DaveJakeman on Tuesday, March 16 2010 @ 01:14 PM EDT |
This has been discussed before, but I only dimly recollect it. In view of
recent events, it might be worth a recap to see how it applies:
Having seen the ugly head of witness collusion -- which they know isn't right
from their daily admonitions -- the jury know there is something wrong in this
picture. They also see these all-too-frequent white-noise huddles. (What's
going on there?) Surely they must realise this isn't how things are suppose to
be. Possibly the denial of Novell's evidence didn't completely fly over their
heads either.
Yet later on, they will be asked to follow the jury instructions the two sides
still haven't agreed upon. Perhaps they might feel railroaded into making a
decision they are not in a position to make. Or something.
What are the jury's options, other than to obediently follow the jury
instructions? Or am I thinking of something else?[ Reply to This | # ]
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- Jury Options - Authored by: dwiget001 on Tuesday, March 16 2010 @ 01:31 PM EDT
- Jury Options - Authored by: ThrPilgrim on Tuesday, March 16 2010 @ 01:33 PM EDT
- Jury Options - Authored by: Anonymous on Tuesday, March 16 2010 @ 02:07 PM EDT
- Can juries ignore the instructions? - Authored by: Anonymous on Tuesday, March 16 2010 @ 01:44 PM EDT
- Nope. - Authored by: jbb on Tuesday, March 16 2010 @ 01:55 PM EDT
- Nope. - Authored by: Tyro on Tuesday, March 16 2010 @ 02:41 PM EDT
- Can juries ignore the instructions? - Authored by: Anonymous on Tuesday, March 16 2010 @ 02:09 PM EDT
- Yes, they can, but that's not the point - Authored by: Anonymous on Tuesday, March 16 2010 @ 03:02 PM EDT
- In NY grand jurors can ask questions, but not trial jurors - Authored by: UncleJosh on Tuesday, March 16 2010 @ 05:49 PM EDT
- Yes, but they can't ask questions. - Authored by: Anonymous on Tuesday, March 16 2010 @ 06:06 PM EDT
- Thanks all (n/t) - Authored by: DaveJakeman on Tuesday, March 16 2010 @ 05:48 PM EDT
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| Authored by: SilverWave on Tuesday, March 16 2010 @ 01:22 PM EDT |
no kidding...
---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, March 16 2010 @ 01:34 PM EDT |
When Novell presents evidence, can they not play the second deposition of Mr.
Sabbath?
I can see that it would be better if Novell could quote from it and ask Ms.
Madsen if she realizes that she is contradicting her boss. It would help the
jury cement the tie between these two individuals. But the jury will get to see
that the two are inconsistent for themselves later, will they not?
Or is there more to wanting to do this now?[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, March 16 2010 @ 02:08 PM EDT |
| I believe Novell can and should win this trial.
They cannot do so with the
present strategy.
Why? MoFo is implementing the same approach that did not
work before the 10th Circuit. It is based on the close reading of particular
documents.
Neither the 10th Circuit, or Stewart, or a random jury has
patience for that exercise.
In contrast, BSF is presenting a story about
business mergers and business needs that has some fundamental and plainspoken
logic.
The Novell APA's are an abomination of bad and obscurantist
phraseology; especially the un-parseable Amendment #2.
Bad lawyers did not
write that document, good lawyers did so, and did so for a reason. Novell has
not presented a reason that its lawyers concocted such a un-interpretable piece
of work.
I suspect it is a consequence of the BSD decision that cast doubt
on the unity and ownership of the ATT source. Others have presented it as a way
of encouraging buyout funds to flow to Novell, rather than SCO. Still other
commentators have linked it to the [old]SCO vs. Microsoft suit happening in
Europe at that time.
These can be summarized as the:
1. BSD damaged
good theory
2. The IBM Buyout windfall theory
3. The shakedown-MSFT with
ambiguous language theory
It is very telling that *seven* years into the
case, even the very most informed observers have no clue why Novell would chose
to use such absurd and convoluted formulation as the good lawyers employeed in
APA #2.
I maintain to win a case against a Jury, Novell must come clean, and
explain in plain language what it was trying to accomplish with the peculiar
amendments.
Until it does so, the Jury will side with the 10th Circuit, that
felt it was not being told the whole truth. That fundamentally is why the 10th
returned the case to the finders of fact. It wanted facts in the case, and
Novell had not provided the central piece of evidence. [ Reply to This | # ]
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- Novell *can* win, but they must be forthright - Authored by: Anonymous on Tuesday, March 16 2010 @ 02:34 PM EDT
- "un-interpretable piece of work" - Authored by: Leg on Tuesday, March 16 2010 @ 02:36 PM EDT
- Novell *can* win, but they must be forthright - Authored by: bugstomper on Tuesday, March 16 2010 @ 02:36 PM EDT
- Novell *can* win, but they must be forthright - Authored by: Anonymous on Tuesday, March 16 2010 @ 02:55 PM EDT
- Novell's case: SCO are a pack of liars. - Authored by: Anonymous on Tuesday, March 16 2010 @ 06:13 PM EDT
- Novell *can* win, but they must be forthright - Authored by: DaveJakeman on Tuesday, March 16 2010 @ 06:13 PM EDT
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| Authored by: Anonymous on Tuesday, March 16 2010 @ 02:17 PM EDT |
Something I haven't seen addresed here, and I was wondering about: what
about
transcripts for the trial so far? Do they become available at all? If
so, how soon?
Is there a fee?
Thanks for your
time.
bjd
[ Reply to This | # ]
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- $$$$$$$$ - Authored by: Anonymous on Tuesday, March 16 2010 @ 03:39 PM EDT
- Transcripts - Authored by: Steve Martin on Tuesday, March 16 2010 @ 04:34 PM EDT
- Silliness - Authored by: Anonymous on Tuesday, March 16 2010 @ 07:06 PM EDT
- Silliness - Authored by: Steve Martin on Tuesday, March 16 2010 @ 08:07 PM EDT
- Silliness - Authored by: Anonymous on Thursday, March 18 2010 @ 02:56 AM EDT
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| Authored by: Anonymous on Tuesday, March 16 2010 @ 03:00 PM EDT |
Our reporter writes: "Judge Stewart said that he read as much as he could during
the
break of Mr. Sabbath's declaration and said that on its own it rebuts
Ms. Madsen and
he sees no need to bring her back."
Isn't this a
positive point that's being overlooked here by the majority of comments?
To
me it seems the matter is clear to Stewart also, and (as the manager of this
trial)
he doesn't see the need to bring her back (in consideration for
her).
Meaning that he knows there will be a clear jury instruction on this
aspect forthcoming.
IANAL, so correct me where and how I might be
wrong; I might be whistling in the dark :-/
bjd
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, March 16 2010 @ 03:14 PM EDT |
PJ wrote: But the judge can simply change his ruling, solving the issue.
I respectfully disagree. As with the "to this day" ruling, it isn't
enough for the judge to allow a rebuttal days later, if at all. Even if they
are allowed to hear it, the jury is likely to wonder what is wrong with the
information that they weren't permitted to see it in a timely fashion.
If Judge Stewart is trying to let the jury decide the issues based on the fact,
he isn't doing a very good job of it.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, March 16 2010 @ 05:02 PM EDT |
The amount of drivel being written here is frankly disgusting, especially
the completely baseless and stupid insinuations of judicial
corruption.
Novell knew that SCO could call Sabbath as a deposition-only
witness. It
knew that when the deposition was taken. If it wanted to introduce
his 2003
declaration then, it could have done so. Not doing it was a mistake.
Novell
admitted as much in court.
Stewart declines to rescue Novell from
its mistake. He's made some
questionable rulings in the case, but this isn't
one of them. Why not? Because
Novell can call Sabbath to testify live as a
hostile witness and barbecue him
on direct examination, using that same
declaration. The
declaration hasn't been excluded. Novell will have to use
up some of its own
time to destroy Sabbath,
instead of doing it on SCO's time,
but they can still do it. [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, March 17 2010 @ 01:30 AM EDT |
The only excuse I can think of for the apparent bias of the judge is that he is
giving SCO everything he can so that when they lose anyway, they will have no
grounds for appeal.
Judge Kimble must surely view this as a slight to his name since this judge has
apparently decided that Kimble was completely incorrect in his opinions after
the case before this judge even knows all the facts.
I'm baffled.. but one thing is certain.. SCO's group have suddenly gotten much
more professional..
I'm starting to wonder if they didn't all act like gibbering buffoons (my
opinion of Darl's announcements and some of the gaffs of their legal team ) last
time when they realised they were losing for no other reason than to get an
Appeal with a new judge.
[ Reply to This | # ]
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| Authored by: Yossarian on Wednesday, March 17 2010 @ 07:06 AM EDT |
>I have never seen that happen before, where you are not
>allowed to impeach a witness by referring to a prior
>deposition where the witness said something very different
>from what he says on the witness stand.
If your favorite team, AKA "the good guys" does not win then
you just wipe the past scores and tell the teams to play again.
Repeat as many times as necessary till "the good guys" win.[ Reply to This | # ]
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| Authored by: sumzero on Wednesday, March 17 2010 @ 11:35 AM EDT |
this text is not here.
sum.zero
---
48. The best book on programming for the layman is "alice in wonderland"; but
that's because it's the best book on anything for the layman.
alan j perlis[ Reply to This | # ]
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