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Novell Motion to Strike Damages Testimony After June 9, 2004 & Reply to Objections to Braham Testimony
Wednesday, March 24 2010 @ 09:47 AM EDT

Another day begins in the SCO v. Novell trial, with Novell filing a motion to strike testimony of damages after June 9, 2004. And they have also filed a Reply Brief responding to SCO's objections to some of Tor Braham's testimony. SCO objected orally and in a brief they filed on the 21st, part of their list of things they believe Novell can't use because of asserting attorney privilege.

SCO objects to "certain testimony of Tor Braham regarding his communications with Novell concerning the APA and his understanding of Novell's intent pertaining to the APA. I think if you read his declaration you'll understand why it's something SCO would rather the jury not hear. It was Braham who not only negotiated but also drafted the APA, so he is in a position to speak to the meaning of the words and their purposes.

Novell's answers SCO's privilege arguments by pointing out that some drafts of the APA and related documents were not produced earlier because they were not relevant and don't speak to copyright ownership, but now that SCO is objecting, Novell has faxed them to SCO so they can see them. As for the privilege assertions during Aaron Alter's deposition, they were few in comparison to the approximately 150 pages of testimony he provided, and Novell lists for the court a sampling of the questions answered. Some questions SCO asked were too broad, but he certainly answered questions about the topics Braham will be speaking about. And Novell points out Braham filed a declaration long ago on substantively the same topics, and if SCO had wished to depose him, they could have but elected not to.

Here are the filings:

03/23/2010 - 823 - MOTION to Strike TESTIMONY OF DAMAGES AFTER JUNE 9, 2004 filed by Counter Claimant Novell, Inc., Defendant Novell, Inc.. (Brennan, Sterling) (Entered: 03/23/2010)

03/24/2010 - 824 - REPLY BRIEF NOVELL'S RESPONSE TO SCO'S OBJECTION TO CERTAIN TESTIMONY OF TOR BRAHAM filed by Counter Claimant Novell, Inc., Defendant Novell, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Brennan, Sterling) (Entered: 03/24/2010)

The few privileges that Novell asserted during Alter's testimony had to do, Novell explains, with communications after the drafting of the APA, not before, and in some other cases he was allowed to answer the questions anyway, after the objections. Alter was allowed to testify as to the pre-APA negotiations, and so, Novell argues, it should be allowed that Braham can also so testify before the jury.

On the damages motion, Novell points out that the court denied Novell's motion to let them examine witness about the court's prior rulings. One purpose of that motion was to challenge SCO's damages theory, in particular its premise that all loss of sales between May 28, 2003 and October 31, 2007 is attributable to Novell's public statements that it believed it owned the copyrights. In denying Novell's motion, Judge Ted Stewart ruled that the "probative value is very slight, if there is any, for the time frame in question," since in his view the time frame that matters is the year 2003 and early 2004, prior to Judge Dale Kimball's first ruling in June 2004. The judge also ruled yesterday that Ryan Tibbitts could not testify regarding post-2004 contact with potential licensees, because it would be unfair and inappropriate.

So, in light of all that happened yesterday, Novell requests an order limiting SCO's damages to the time period the court said mattered, which would involve striking "irrelevant damages testimony". They mean the witnesses, including Christine Botosan, who went on and on about damages "to this very day," by claiming SCO suffered between $114 million and $215 million in lost profits, her calculations running through the end of October 2007.

Fair is fair, and if Novell can't rebut, the jury should not be allowed to consider that testimony:

Under the Court's March 22 order, expert testimony regarding lost profits from sales that would have been made in some "but for" world after June 9, 2004 is irrelevant and thus inadmissable. See Fed. R. Evid. 402. Because Novell has not been allowed to answer such testimony with evidence that any such damages have other causes, the jury should not be permitted to consider it if and when damages are awarded. More specifically, Novell requests that the Court strike (1) all of Dr. Botosan's testimony relating to damages allegedly sustained in 2005, 2006, and 2007, because those time periods are clearly outside what the Court's order of March 22 defines as "the relevant time frame," i.e., "the year 2003 and early 2004"; (2) all of Dr. Botosan's testimony relating to damages allegedly sustained in 2004, because her testimony provides no principled basis for segregating damages supposedly incurred before June 9, 2004 from those incurred after; and (3) all of Dr. Pisano's testimony relating to potential market size and anticipated volume of license sales in the "but for" world, because his testimony provides no principled basis for segregating sales that allegedly would have been realized in the "but for" world before June 9, 2004 from those that would have been realized after.

Exclusion of evidence of lost sales after June 9, 2004 necessarily precludes any award of damages therefor....

In the wake of Dr. Botosan's testimony that Novell caused SCO to lose hundreds of millions of dollars in profits after Judge Kimball began issuing favorable rulings, Novell asked this Court to permit Novell to elicit testimony related to those rulings both (1) from SCO's witnesses, to rebut the claim that Novell's statements were the sole cause of third-party purchasing decisions; and (2) from Novell's witnesses, to explain why Novell did not change course. (Dkt. No. 815.) By its March 22 ruling, the Court denied Novell the opportunity to do either because it determined that "the time frame that matters is the year 2003 and early 2004 prior to the first ruling by Judge Kimball in June 2004." (Tr. at 1793:25-1794:2.) If that is the time frame that matters, and Novell has been denied the opportunity to defend itself with respect to any later period of time, because that is the time frame that matters, then the jury should be so instructed and testimony of damages allegedly arising thereafter should be stricken.

If Novell properly understands the jurisprudence developed and applied by the Court over the course of these proceedings, including its March 22 ruling, then granting this motion will simply make explicit what is already implicit in what the Court has already decided.


  


Novell Motion to Strike Damages Testimony After June 9, 2004 & Reply to Objections to Braham Testimony | 109 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: ChrisP on Wednesday, March 24 2010 @ 10:15 AM EDT
Put Korrection->Correction in the title please.

I see PJ has already fixed the missing italic tag. :-)

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

[ Reply to This | # ]

Off Topic
Authored by: bbaston on Wednesday, March 24 2010 @ 10:21 AM EDT
with links, please

---
IMBW, IANAL2, ICRN, IAVO
imaybewrong, iamnotalawyertoo, icantremembernow, iamveryold

[ Reply to This | # ]

Novell's legal team trap the court between a rock and a hard place.
Authored by: Anonymous on Wednesday, March 24 2010 @ 10:24 AM EDT
They, very eloquently, that the court can't have it both ways - at least not
without properly explaining itself!

To paraphrase:

"If you (the court) won't allow any evidence to be presented regarding the
period after 2004, then you cannot reasonably expect to determine damages for
that period."

[ Reply to This | # ]

Novell Motion to Strike Damages Testimony After June 9, 2004 Conclusions
Authored by: Laomedon on Wednesday, March 24 2010 @ 10:27 AM EDT
III. CONCLUSION

In the wake of Dr. Botosan’s testimony that Novell caused SCO to lose hundreds of millions of dollars in profits after Judge Kimball began issuing favorable rulings, Novell asked this Court to permit Novell to elicit testimony related to those rulings both (1) from SCO’s witnesses, to rebut the claim that Novell’s statements were the sole cause of third-party purchasing decisions; and (2) from Novell’s witnesses, to explain why Novell did not change course. (Dkt. No. 815.) By its March 22 ruling, the Court denied Novell the opportunity to do either because it determined that “the time frame that matters is the year 2003 and early 2004 prior to the first ruling by Judge Kimball in June 2004.” (Tr. at 1793:25–1794:2.) If that is the time frame that matters, and Novell has been denied the opportunity to defend itself with respect to any later period of time because that is the time frame that matters, then the jury should be so instructed and testimony of damages allegedly arising thereafter should be stricken.

If Novell properly understands the jurisprudence developed and applied by the Court over the course of these proceedings, including its March 22 ruling, then granting this motion will simply make explicit what is already implicit in what the Court has already decided.

Great softball for JS to hit out of the park and render any damages, however unlikely to be awarded, de minimis.

[ Reply to This | # ]

Newspicks comment thread
Authored by: ChrisP on Wednesday, March 24 2010 @ 10:31 AM EDT
Please put the Newspick in the title so we know what's being discussed. Clickies
are good.

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

[ Reply to This | # ]

Off Topic
Authored by: ChrisP on Wednesday, March 24 2010 @ 10:34 AM EDT
You had better not stray on topic or else!

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

[ Reply to This | # ]

War Zone
Authored by: DaveJakeman on Wednesday, March 24 2010 @ 10:55 AM EDT
It's bad enough Novell having to fight an opponent such as SCO, without having
to fight the judge too.

[ Reply to This | # ]

Good
Authored by: Anonymous on Wednesday, March 24 2010 @ 11:02 AM EDT
Novell needs to keep making these types of motions just to counter balance and
make official note of the Judge's bias towards SCO, in my opinion.

The Judge has ruled against Novell on almost every occasion where the Judge
could plausibly make a claim that it is not his job to make up for Novell's lack
of previous aggressiveness. All the while, the Judge has almost always granted
SCO requests to redo each of their previous failures, including adding a witness
that had not been deposed and wasn't even on the witness list. Discovery closed
how many years ago?

I understand that Novell is trying to be very polite and respectful of the
Judge, but the bias is so egregious that I wish they would make these types of
motions more often.

[ Reply to This | # ]

  • Yup - Authored by: Anonymous on Wednesday, March 24 2010 @ 01:34 PM EDT
What happened yesterday?
Authored by: Anonymous on Wednesday, March 24 2010 @ 11:16 AM EDT
I'm sure you know PJ, but those of us out of the loop sure don't. *hint, hint*
;-)

[ Reply to This | # ]

Oh, Novell, what a silly obsession with reality!
Authored by: Anonymous on Wednesday, March 24 2010 @ 11:20 AM EDT

Weren't they listening to the "experts"? The fantasy "but for" world is what would (they assure us) have happened if Novell had just done the right thing, said nothing, and let SCO collect their Danegeld.

It was the reprehensible act of Novell daring to defend themselves that caused the damages. If they hadn't done that, whee, billion$$$ for SCO. So what actually happened in the real world after that notorious act of defiance is utterly irrelevant.

And since they're the "experts", what's a Judge to do but bow to their sage opinions and allow SCO's view of the world to prevail?

[ Reply to This | # ]

Striking Botosan
Authored by: Anonymous on Wednesday, March 24 2010 @ 11:24 AM EDT

I thought Novell was able to introduce the Kimbell decisions to rebut Dr.
Botosan. If that is the case, it seems like their motion to strike that part of
her testimony is double-dipping?

[ Reply to This | # ]

"But for..."
Authored by: Anonymous on Wednesday, March 24 2010 @ 11:33 AM EDT
This all becomes moot, if the copyrights didn't transfer. In that case, Novell
can argue, "But for claims by SCO that they owned our Unix copyrights, our
SUSE Linux business what be booming." In fact, but for SCO suing or
threatening suit against numerous business partners and customers, the SCO Unix
and Linux products might be thriving today, especially if they put the amount of
resources into developing them that they have put into their litigation
business.

[ Reply to This | # ]

Can't Novel just shoot down the whole slander calim by lack of malice ?
Authored by: Anonymous on Wednesday, March 24 2010 @ 11:56 AM EDT
I simply do not understand why Novel is spending so much time with the damages
part. That only comes into play if SCO wins the slander if title claim. However,
that should be very easy to kill based on lack of malice. Even if the jury
decides that the copyrights were transfered, that would only happen now in 2010.
However, all the time up until now Novel had a very strong reason to believe
(APA + Amendments) that they owned the copyrights. They have presented evidence
for it and the evidence was enough to convince even a Federal judge to rule in
their favour. That ought to be more than enough to prove they had no malice, as
they certainly believed to own the copyrights.

Of course, IANAL, so that's my excuse for not "getting" this.

ZZ

[ Reply to This | # ]

No change of position since 2003 - all or nothing
Authored by: Anonymous on Wednesday, March 24 2010 @ 12:46 PM EDT
Neither SCO or Novell have changed their position since 2003, so Slander of
Title must either be continuing to this day, or it never happened.

Since Novell can prove that it is not happening to-this-day, the only
alternative is that it never happened.

The court is dancing around this logic, trying to find a middle ground which
does not exist.

[ Reply to This | # ]

curiousity
Authored by: Anonymous on Wednesday, March 24 2010 @ 01:18 PM EDT
It would seem to me that given what Novell has told us, Judge Stewart may have
some particular event in mind marking the terminus of the timeframe during which
he believes Novell is exposed to charges of slander of title. I haven't really
identified a candidate event that stands out in my judgement. Are there any
suggestions what this may be?

[ Reply to This | # ]

Novell Motion to Strike Damages Testimony After June 9, 2004 & Reply to Objections to Braham Testimony
Authored by: webster on Wednesday, March 24 2010 @ 01:22 PM EDT
.

Novell should make sure to ask Braham who he was dealing with in exchanging
drafts of the APA with SCO. He will say lawyers, either from a law firm or
Santa Cruz in house counsel or both.

Novell will then argue to the jury that if they want to know what the APA meant,
ask the men who wrote it. They can then point to Braham and say that he drafted
it in part and approved the parts drafted by others because he knows what the
parties had agreed on and wanted to say.

The jury would than have the presumptive meaning of the APA and no authoritative
counter to Braham.

They should also ask him if as a lawyer he knows how to convey a copyright and
if he has done so before. He is a star witness and may well go last to keep him
fresh before the jury.

~webster~

.

[ Reply to This | # ]

Great move by Novell. nt
Authored by: SilverWave on Wednesday, March 24 2010 @ 01:34 PM EDT
.

---
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 | # ]

Oh what a tangled web we weave ...
Authored by: Anonymous on Wednesday, March 24 2010 @ 03:54 PM EDT
... when first we practice to deceive.

The court has tied itself in a knot over what is and isn't being withheld from
the jury. Having lied (by omission) to the jury once by not telling them the
full truth about SCOs litigation history and financial situation, the court now
finds itself forced into more and more elaborate lies to cover up its original
deception. Lies have a habit spiralling out of control. Life would be a lot
easier for everyone if jurors were simply told the truth, the whole truth, and
nothing but the truth.

This whole business of Judges seeking to control jurys at one remove by
manipulating which aspects of reality they are allowed to know about is just
plain wrong. I know it has a long history in the courts, but that doesn't make
it right. The jury is supposed to decide the case, and the judge should trust
them to exercise this power responsibly. Let the jury know all the facts
surrounding the situation so they can be fully informed when they decide the
case.

[ Reply to This | # ]

"So, in light of all that happened yesterday": but... no reports from 'yesterday'!?
Authored by: Anonymous on Wednesday, March 24 2010 @ 04:00 PM EDT
Hmm...
This is written Wednesday, and to my counting, we don't have
any reports at all from 'yesterday', which, after all, was Tuesday.
In fact, there was a long stint of silence.

I am missing something, or am I?

bjd

[ Reply to This | # ]

  • Yes - Authored by: Laomedon on Wednesday, March 24 2010 @ 04:14 PM EDT
    • Yabut - Authored by: Anonymous on Wednesday, March 24 2010 @ 04:23 PM EDT
      • Yabut - Authored by: walberg on Wednesday, March 24 2010 @ 05:18 PM EDT
Novell Motion to Strike Damages Testimony After June 9, 2004 & Reply to Objections to Braham Testimony
Authored by: PolR on Wednesday, March 24 2010 @ 04:32 PM EDT
I posted this comment under the wrong article. I repost at its appropriate
place. Sorry about that.

----------------
This is the court telling the jury that some of what they heard from SCO is
garbage. please don't listen to it.

What are the odds it will leave the jurors thinking Hmmmm? what else is
garbage?

This can't be good for SCO. This is a case where the jury just decide who is the
liar. Everything else follows from there.
---------------

Additional thought: what is the odds of the judge denying the motion or make a
significantly toned down ruling for this very reason? He won't want to send this
message to the jury.

[ Reply to This | # ]

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