SCO Grp v. Novell Inc

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DECLARATION of Edward Normand re 259 Memorandum in Support of Motion, filed by SCO Group. (Attachments: # 1 Exhibit 1 Part 1# 2 Exhibit 1 Part 2# 3 Exhibit 1 Part 3# 4 Exhibit 1 Part 4# 5 Exhibit 2-9# 6 Exhibit 10-20# 7 Exhibit 21-27# 8 Exhibit 28-31# 9 Exhibit 32-34# 10 Exhibit 35 Part 1# 11 Exhibit 35 Part 2# 12 Exhibit 36-41)(Normand, Edward)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH

THE SCO GROUP, INC., Plaintiff, vs. NOVELL, INC., Defendant.

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Case No. 2:04CV00139 Videotaped Deposition of: GREGORY JONES

January 26, 2007 - 9:35 a.m. Location: Hatch, James & Dodge 10 West Broadway, Suite 400 Salt Lake City, Utah 84111 Reporter: Teri Hansen Cronenwett Certified Realtime Reporter, Registered Merit Reporter Notary Public in and for the State of Utah

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say that they made and were involved in making the public statements in 2003, Mr. Stone, Mr. LaSala and Mr. Messman, without to your knowledge them being involved in the very contract that they were addressing, namely the APA? MR. BRAKEBILL: Argumentative. A. If by involved you mean -- I guess, first of all, the extent to which they were involved making those -- in making the public statements, I guess we have -- you have asked of that. And I guess I have said that Mr. Stone and Mr. LaSala -- if you mean by being involved that they were there at the time, then Mr. LaSala and Mr. Stone were not there even at Novell at the time. And Jack Messman was on the board of directors, and I didn't see him involved. I don't have a way of knowing for certain that he was not involved. Q. (By Mr. Gonzalez) In your experience would it be unusual for a member of the board to be involved in negotiations of a contract like that? A. Of the -- in the negotiations, the actual back and forth with the other side? Q. Yeah. A. You know, of transactions of that magnitude, I think that, yeah, I'm not certain as to what extent the board members may potentially get involved. Q. Do you recall any board member at Novell being

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I am not recalling right off anyone who would have been there at that time, in the executive capacity in 2003 who would have participated in negotiations of the APA. Q. And you identified earlier some of the people that you did know to have participated in the negotiations of the APA. Do you recall telling me some names like, I think you said Ed Chatlos and Ty Mattingly specifically? A. And Tor Braham. Q. Yeah. Were any of those people at Novell in 2003 to your knowledge? A. No. Q. Did any of Novell's senior management in 2003 to your knowledge participate in negotiating the amendments to the APA? A. Not to my knowledge, no. Q. And do you know of anyone who did participate in those negotiations who was at Novell in 2003? A. The original APA? Q. No, the amendments to the APA. A. Greg Jones. But again, I described my role as being peripheral. Q. Peripheral, yeah. A. But -Q. And that was with respect to Amendment No. 2, I believe you said?

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involved in negotiating, negotiating an agreement or an amendment to an agreement? A. Yeah. If, if those -- if there are conversations being held at that level, they're not the types of things that I would see. Q. Okay. So you have no knowledge. Is that fair? A. Yeah. I can't recall anything right now in that regard. Q. Okay. A. I guess except -- with the exception of, you know, we have had situations where the CEO is also the chairman of the board. Q. Yeah. A. Right? And so in those types of situations, you know, very possibly that particular board member can be involved. Q. Sure. But with that exception aside, your answer was the one you gave me before? A. Yeah, no knowledge. Q. Okay. A. That I can recall. Q. So to your knowledge did any of the senior management at Novell in 2003 participating -- participate in negotiating the APA? A. Yeah, I -- trying to inventory all of the people.
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A. Right. Amendment No. 2, and there may have been other -- there may have been other in-house counsel who may have been involved. I just -- it was a protracted negotiation. Q. Sure. A. And I just can't -- I don't know if anyone else is currently on our staff might have been consulted as well. I just can't recall. Q. Would that person be senior management? A. Now I'm referring to right now -- and I'm sorry. Was your question before limited to senior management or just anyone? Q. Well, no. It was just anyone. But now I'm asking -A. Okay. Because I'm not senior management, you know, so there could have been perhaps other counsel. And in senior management level I'm not recalling anyone who would have been there in 2003 that was involved in the APA or the amendments, in negotiating those at the time. Q. Okay. Thank you. Have you had any communications with nonparties about this litigation that you can recall? MR. BRAKEBILL: I'm going to object on the basis of attorney work product or attorney-client communications. Q. (By Mr. Gonzalez) Other than -A. So nonparties, yeah, from time to time.

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION --------------THE SCO GROUP, INC., a Delaware corporation, Plaintiff, VS. NOVELL, INC., a Delaware corporation, Defendant. : : : : : : : CIVIL NO. 2:04CV00139

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VIDEOTAPED DEPOSITION OF JOSEPH A. LASALA, a witness called by and on behalf of the Plaintiff, taken pursuant to the applicable provisions of the Federal Rules of Civil Procedure, before Sandra L. Bray, Registered Diplomate Reporter, CSR Number 103593, and Notary Public in and for Commonwealth of Massachusetts, at the offices of Ropes & Gray, One International Place, Boston, Massachusetts, on Thursday, February 8, 2007, commencing at 9:23 a.m.

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copyright transfer under the APA? A. I doubt that it would shed light on it because we have a document here that's fairly clear on its face with respect to the exclusion of copyrights from the transfer. Q. But to the extent you would have to speculate to the meaning of Attachment E, is it possible that a discussion with somebody who negotiated the APA could flush out that speculation? MR. BRAKEBILL: Form. A. I suppose that's possible, yeah. Q. To the extent it's not a subject of privilege, can you tell me why you've not spoken with anyone who negotiated the APA? A. I didn't view it as a need for me to have conversations with those who negotiated the APA. I do know that there have been discussions with those who have negotiated the APA. Q. And to the extent it's not a subject of privilege -- and since you have an attorney, I can probably stop saying that -MR. BRAKEBILL: It's always helpful to clarify. MR. NORMAND: Yeah.
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were certain trademarks that did transfer. Q. You think that's clear under the agreement? A. Yes. Q. Do you have any explanation for why Mr. Stone and Mr. Messman would have reached a different conclusion? MR. BRAKEBILL: Speculation. A. No, I don't. Q. I'm handing you, Mr. LaSala, what's been marked as Exhibit 1009, which is titled Amendment Number 2 to the Asset Purchase Agreement. Do you recognize this document, Mr. LaSala? A. Yes, I do. Q. And do you recall whether you had occasion to review this document in connection with your review of the APA in the early part of 2003? A. I have a recollection that I did not review this document in early 2003 in connection with my review of the APA. Q. Do you recall whether in the early part of 2003 you had occasion to see an unsigned version of Amendment Number 2? A. If you could be more precise when you talk about early in 2003, the time frame.
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Q. -- have you had occasion to consider the testimony of anyone in this case or the IBM case who negotiated the APA on the issue of copyright transfer? MR. BRAKEBILL: Objection, foundation. A. I don't think I have with respect to the issue of copyright transfer. Q. Do you allow for the possibility that that testimony might shed some light on the issue of copyright transfer under the APA? MR. BRAKEBILL: Foundation. A. I suppose it could, but, again, the document, in my view, is very clear on the issue, and I have really no need to speak to anyone involved in the negotiations because of the clarity of the document. Q. If I were to represent to you that Chris Stone and Jack Messman have both testified to their understanding that no trademarks were transferred under the APA -- and it's just my representation, but to the extent they gave that testimony, would you think that they're wrong? MR. BRAKEBILL: Foundation. A. Trademarks. I believe the agreement says there

Q. We've discussed in this case -- and we'll discuss today -- a May 28th, 2003 press release. A. Yeah. Q. And I know there'll be a foundation objection, but does that date refresh your recollection at all as to events in 2003? A. Yes, if you consider May 28th or thereabouts as early in 2003. Q. I didn't mean to -A. That's what I was asking. When you say early, I think January, February, March, and I wanted to make sure that that's the time frame that you were thinking about. That's all. Q. I took it from our early exchanges that January, February, March fell into early. May 28th wouldn't. A. Right. Q. So I just wanted to have that date as a benchmark for us to work around. A. All right. Q. Do you recall whether prior to May 28th, 2003 you saw an unsigned copy of Amendment Number 2? A. I don't recall that I did prior to May 28th. Q. I think we've also discussed in this case a

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interpret Paragraph A of Amendment Number 2, it's not immediately obvious from the language of Paragraph A? MR. BRAKEBILL: Form, argumentative. A. I'm sorry. What's not immediately obvious? Q. The view that Novell ultimately came to that it didn't effect the transfer of copyrights but, rather, creates limited circumstances in which Santa Cruz could obtain copyrights. MR. BRAKEBILL: Form, argumentative. A. Well, we've never acknowledged that it does effect copyright transfer. Q. No, I didn't mean to suggest that you ever did. A. Okay. Q. What I'm asking is, the view that you have formed of what Paragraph A of Amendment Number 2 means with respect to copyright transfer is not a meaning that is immediately obvious from the language of Paragraph A; is it? MR. BRAKEBILL: Form, argumentative. A. I guess that's correct, but it's clear and was clear immediately upon review and has been since then that the language of Amendment Number 2 did not effect the transfer of copyrights.
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A. I guess that's fair. And we, in fact, say further in the letter that we're still reviewing the asset purchase agreement to review the rights transferred to SCO, so I won't quibble with your assertion. Q. Have you had occasion to speak with anyone who negotiated the APA regarding any aspect of the APA? I think I asked you the question earlier about copyright transfer. Now, I'm sort of broadening the question. A. Any aspect of the APA? Q. Yes. A. I have not. Q. And have you had occasion to speak with anyone who negotiated Amendment Number 2 regarding any aspect of Amendment Number 2? A. I have not. Q. Mr. LaSala, is there a joint defense or common interest agreement between Novell and IBM relating to the two SCO litigations? A. Yes. Q. And when did that agreement begin? MR. BRAKEBILL: Foundation, form. A. I don't recall.
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Q. No, I've heard you just say that, and I don't mean to quibble with that. I mean to ask a narrow question, which is, the view that you have formed of what Paragraph A means as you've articulated it to me is not immediately obvious from the language of Paragraph A; is it? MR. BRAKEBILL: Form, argumentative. A. I don't know. I'm not sort of connecting with your question. I mean the form -- say it again. Q. My questions arise out of the fact that twenty days after having seen Amendment Number 2, you're making the statements that we've reviewed in this June 26th, 2003 letter. A. Right. Q. I don't think it's controversial for me to ask you whether the fact that you're using that language three weeks after having seen the document suggests that there are answers to questions that aren't immediately obvious from the language. A. Okay. MR. BRAKEBILL: Wait. I'm not sure if there was a question there, but form, compound, argumentative. Is that, like, a statement?

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Q. The agreement did begin at some point, correct? A. Yes. I don't recall precisely when it began. Q. Can you recall roughly? Because I'm going to have to structure questions around honoring that privilege. A. Yeah. My recollection, that it was sometime around the end of May, give or take, you know, weeks on either side, but I don't remember exactly when it was. MR. NORMAND: Ken, is that a question that has an obvious answer or is it something we should wait for a break for, the date when this joint defense and common agreement began? MR. BRAKEBILL: The reason why I objected is because there's a built-in assumption in your question that privilege only begins with an actual agreement. I'm not sure that answered your question, but his memory is what it is, I guess, would be my response to you. MR. NORMAND: Why don't you and I talk about it on the break? I can talk about something else right now. Q. I'm handing you, Mr. LaSala, what's been

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Volume I Pages 1 to 183 Exhibits 1026-1034 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH - - - - - - - - - - - - - - - - -x : THE SCO GROUP, INC., a : Delaware corporation, : Plaintiff/Counterclaim : Defendant, : : vs. : : NOVELL, INC., a Delaware : corporation, : Defendant/Counterclaim : Plaintiff. : : - - - - - - - - - - - - - - - - -x

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VIDEOTAPED DEPOSITION OF JACK L. MESSMAN, a witness called on behalf of the Plaintiff/ Counterclaim Defendant, taken pursuant to the Federal Rules of Civil Procedure, before Anne H. Bohan, Registered Diplomate Reporter and Notary Public in and for the Commonwealth of Massachusetts, at the Offices of Ropes & Gray LLP, One International Place, Boston, Massachusetts, on Wednesday, February 7, 2007, commencing at 9:59 a.m.

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A. Yes. MR. BRAKEBILL: Form. A. Correct. I did approve the release of this. Q. Everything in that statement was true and correct, to the best of your knowledge? A. Yes. MR. BRAKEBILL: There is another sentence at the end, that's why I'm objecting, because you're characterizing that as the entire statement. MR. SINGER: There is another statement that involves the infringement claims and all, but that's not what my question concerns. Q. These statements are all true and correct, to the best of your knowledge? A. Yes. Q. Now, the statement that to Novell's knowledge, Amendment No. 2 is not present in Novell's files, it turns out that statement was false, correct? A. No. MR. BRAKEBILL: Form. A. There was no signed amendment in our files. Q. You had determined at a later time that

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A. That's the purpose of that first statement. Q. Right. And that is the reason why you're informing the public on June 6, 2003 that Amendment No. 2 appears to support SCO's claim that ownership of certain copyrights for UNIX did transfer to SCO in 1996; is that correct? MR. BRAKEBILL: Form. A. We're saying that this amendment appears to support SCO's claim. We're not saying that Amendment 2 transferred the copyrights. Q. The reason why you made this statement that Amendment No. 2 appears to support SCO's claim is because you had now received a signed copy of Amendment No. 2; is that correct? A. Yes. MR. BRAKEBILL: Form. Q. If you had had in your possession a signed copy of Amendment No. 2, would you have issued the letter that you wrote on May 28th and the accompanying press release? A. I can't speculate as to whether I would have done it then. Q. In referring -- on the last line of the first paragraph where it says, "The amendment does

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there was a signed copy in the CFO's files? A. Yes. Q. Don't you consider the CFO's files to be Novell's files? MR. BRAKEBILL: Form. A. Sure. Q. So what you're -- at the time Novell said this, it was not aware that that signed copy was in Novell's files; it later turned out to be in Novell's files; is that correct? MR. BRAKEBILL: Form. A. Yes. Q. You were aware, even at the time of this press statement, that there was an unsigned copy that had been in Novell's files, correct? MR. BRAKEBILL: Form, mischaracterizes earlier testimony. A. I was aware that there was an unsigned copy of Amendment 2, but there could have been unsigned copies of other things too; they don't become binding until they're signed. Q. As of the date of this press release, you had become aware that in fact Amendment No. 2 had been signed, right?

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not address ownership of patents, however, which clearly remain with Novell," were you seeking to distinguish the ownership of patents from the ownership of copyrights? A. No. I was just saying that the amendment didn't address the issue of patents, and in my opinion, it would have addressed both, if it was with regard to transferring the copyrights. Q. So it's your view that the statement, looking at the two sentences which says, "The amendment appears to support SCO's claim that ownership of certain copyrights for UNIX did transfer to SCO in 1996. The amendment does not address ownership of patents, however, which clearly remain with Novell," it's your testimony that that was not intended to distinguish the copyright treatment from the patent treatment? MR. BRAKEBILL: Form. A. Basically, I was saying that it was not addressed. Q. Did there come a time when Novell clarified its position or changed its position once more back to the statement that it didn't transfer any copyrights?

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MR. BRAKEBILL: I just want the record to be clear. A. And the answer is no. Q. Did you recognize in this time frame in June 2003 that the individuals who had worked on the Asset Purchase Agreement transaction, the negotiation of the transaction, the drafting of the agreement, were no longer at Novell? A. I think I learned that most of them were not. Q. And you knew that back in 2003, correct? A. I think that's when I learned that most of them were not any longer with us. Q. As you sit here today, who do you identify in your mind, if you know, were the individuals who were in fact involved at Novell in the Asset Purchase Agreement transaction? MR. BRAKEBILL: Foundation. A. Well, we had a law firm that was doing most of the work. Q. Which law firm was that? A. Wilson Sonsini. And I can't remember the guys in corporate development that were working on this, there were several of them. As a board member

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A. Yes. Q. In this letter, is it fair to say Novell rejects SCO's claim to ownership of any copyrights in UNIX technologies? A. Yes. Q. What background materials or other information not available to Novell in June of 2003 have resulted now in August of 2003 Novell taking this position? MR. BRAKEBILL: Form. A. I don't think there were any new materials; there was a lot more attention devoted to the agreement and understanding the agreement. Q. So there was no new information which came to light that you're aware of between June 6, 2003 and August 4, 2003? A. Not that I'm aware of. Q. The position that Novell took in this letter was, quote, and I'm quoting from the third paragraph, "...we certainly see no reason why Santa Cruz Operation would have needed ownership of copyrights in UNIX System V in order to exercise the limited rights granted SCO under the APA. Nor is there any reason to think that a transfer of the

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I'm talking, not as the CEO of the company. Q. Right. You were a board member then. A. Yes. Q. I was asking, really trying to fix your knowledge in 2003. In June 2003, who were the people who at that time you would have expected that others at Novell would have gone to and asked about what was intended? A. I would expect they would have gone to the people that -- they would have found out who worked on it and gone to them to find out. Q. But you just can't identify the names? A. I just don't know who they are. Q. As you sit here today, you don't know whether or not that happened, whether they went to those people or not? A. I don't know whether that happened. Q. I'd like to now show you Exhibit 1023, which is another piece of correspondence between Mr. LaSala and Mr. McBride that's been dated August 4, 2003. A. (Witness reviews document) Q. Did you review this letter and approve it before it was sent?

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copyrights required for SCO to exercise its APA rights necessarily entails transfer of the entire set of exclusive rights associated with a particular copyrighted computer program." That was Novell's position; is that correct? A. Yes. Q. Which of those two things is Novell's position, as you understand it, that no copyrights at all transferred or that only partially a copyright transferred, as suggested by the last sentence I read? MR. BRAKEBILL: Form, compound, argumentative. A. My view is that we sold SCO the right to develop the code further than what it was at the time we sold it, we transferred the business to them, and they were going to evolve the code, particularly to try to unify UNIX, the various flavors of UNIX, and sell UnixWare. Q. So it's your view -A. And they didn't need the copyrights to do that. Q. So it's your view that the transaction did

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