SCO Grp v. Novell Inc

Filing 347

DECLARATION of Edward Normand re 346 Reply Memorandum/Reply to Response to Motion, filed by SCO Group. (Attachments: # 1 Exhibit 1-2# 2 Exhibit 3# 3 Exhibit 4-12# 4 Exhibit 13-14# 5 Exhibit 15 Part 1# 6 Exhibit 15 Part 2# 7 Exhibit 15 Part 3# 8 Exhibit 15 Part 4# 9 Exhibit 15 Part 5# 10 Exhibit 16-19# 11 Exhibit 20-26# 12 Exhibit 27-34)(Normand, Edward)

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SCO Grp v. Novell Inc Doc. 347 Att. 10 Case 2:04-cv-00139-DAK-BCW Document 347-11 Filed 05/29/2007 Page 1 of 69 EXHIBIT 16 Dockets.Justia.com Case 2:04-cv-00139-DAK-BCW Document 347-11 Filed 05/29/2007 Page 2 of 69 Case 2:04-cv-00139-DAK-BCW Document 347-11 Filed 05/29/2007 Page 3 of 69 Case 2:04-cv-00139-DAK-BCW Document 347-11 Filed 05/29/2007 Page 4 of 69 Case 2:04-cv-00139-DAK-BCW Document 347-11 Filed 05/29/2007 Page 5 of 69 Case 2:04-cv-00139-DAK-BCW Document 347-11 Filed 05/29/2007 Page 6 of 69 Case 2:04-cv-00139-DAK-BCW Document 347-11 Filed 05/29/2007 Page 7 of 69 Case 2:04-cv-00139-DAK-BCW Document 347-11 Filed 05/29/2007 Page 8 of 69 Case 2:04-cv-00139-DAK-BCW Document 347-11 Filed 05/29/2007 Page 9 of 69 Case 2:04-cv-00139-DAK-BCW Document 347-11 Filed 05/29/2007 Page 10 of 69 Case 2:04-cv-00139-DAK-BCW Document 347-11 Filed 05/29/2007 Page 11 of 69 Case 2:04-cv-00139-DAK-BCW Document 347-11 Filed 05/29/2007 Page 12 of 69 Case 2:04-cv-00139-DAK-BCW Document 347-11 Filed 05/29/2007 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GROUP, INC., Plaintiff and Counterclaim Defendant, vs. NOVELL, INC., Defendant and Counterclaim Plaintiff. ____________________________/ C.A. No. 2:04CV00139 Deposition of DOUGLAS MICHELS March 28, 2007 Reported by Katherine E. Lauster CSR 1894 SHARI MOSS & ASSOCIATES Certified Shorthand Reporters 877 Cowan Road, Suite A Burlingame, California 94010-1204 (415) 402-0004 (650) 692-8900 FAX: (650) 692-8909 SHARI MOSS & ASSOCIATES P. 800.266.1598 F. 831.373.1141 www.kcscourtreporting.com (415 ) 402-0004 42672f4e-efa1-4162-a980-981f00dee25a Case 2:04-cv-00139-DAK-BCW Document 347-11 Page 6 Filed 05/29/2007 Page 66 of 69 Page 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 answers. This reporter here will take down everything, and as you know, you're being videotaped. It's important that we try not to talk over each other, so that the reporter can take down what each of us says. It's also important that we keep our conversation verbal, as opposed to nods of the head or shrugs of the shoulder, so that she can take down everything. Do you understand? A. Yes, I do. Q. Now, my purpose here today isn't to try to trick you or trip you up. So if there's ever anything I say that you don't understand, please just let me know, and I'll try and rephrase the question or clarify my question. Do you understand? A. Sure. Q. The next thing, I'm going to use the term "SCO" today to refer both to the entity that's the plaintiff in this action, and to the corporate entities that it claims as its predecessors. If there's ever a point where you feel that you need to clarify that an answer applies only to one particular entity, or that my question doesn't make sense in light of the different corporate entities, just let me know. A. Okay. Q. Now, from time to time, I expect Mr. Normand Page 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 execution of the Asset Purchase Agreement in September of '95 at SCO? A. You know, dates aren't my favorite thing, but as best that I can determine, I was probably CTO at that point, Executive Vice-President and then CTO. Q. Are there other possibilities, or are you sure -A. I was there for 20 years, and I had half a dozen titles, and it never really changed my job much, so I never really worried about what my title was. So -Q. I saw in your declaration that by April '98 you were SCO's President and CEO. Did you have different positions between being CTO in September '95 and those positions in April of 1998? MR. NORMAND: Objection. Form. THE WITNESS: I don't think so. I mean, I was generally -- well, in that period I was generally Executive Vice-President and CTO, or CEO, but -- I mean, I was part of the -- part of the, you know, executive team running the company. Exact titles didn't -- didn't make much difference, other than CEO. That's a little different. BY MR. MELAUGH: Q. Now, in terms of the negotiations that led to Page 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 will make objections to my questions. Unless he specifically instructs you not to answer, you can go ahead and answer my question. If you find his objection or any conversation that he and I have had distracting, let me know, and I can have the question repeated to you or I can restate it myself. Do you understand that? A. I do. Q. All right. At the end of all this you will be given a written transcript to review. You'll have the opportunity to make corrections to the transcript, but I'll know you made those corrections and I'll be able to comment on them, so it's important that you give as accurate and complete testimony as you can today. Do you understand? A. I do. Q. Are you taking any medica- -- medication that might impair your ability to give truthful, accurate testimony today? A. No. Q. Do you have any medical condition that might impair your ability to give truthful and accurate testimony today? A. Nope. Q. What was your position at the time of the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the Asset Purchase Agreement in September '95, is it fair to say that you participated in those negotiations only at sort of high level, as an executive? MR. NORMAND: Objection. Form. THE WITNESS: I don't know what that would mean. BY MR. MELAUGH: Q. Well, how would you characterize your participation in the Asset Purchase Agreement negotiations? A. Well, I was very involved in the initiation of it, and I was very involved in the strategy behind it, and I was very involved in the high level structure of the agreement, and I was involved in supervising pretty directly the people who were negotiating the details of the agreement. Q. When you say you were involved in the initiation of the agreement, can you tell me what you mean by that? A. Well, unfortunately this is a very long time ago, and -- and I'm really bad at dates, and I know that. You know, trying to -- trying to get, you know, remote facts in exactly the right order. But, you know, the discussion of essentially acquiring UNIX had been going on for ten years. Before 3 (Pages 6 to 9) SHARI MOSS & ASSOCIATES P. 800.266.1598 F. 831.373.1141 www.kcscourtreporting.com (415 ) 402-0004 42672f4e-efa1-4162-a980-981f00dee25a Case 2:04-cv-00139-DAK-BCW Document 347-11 Page 98 Filed 05/29/2007 Page 67 of 69 Page 100 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 sent it to one or two people, and none of them had any -- they all said it looks exactly right. I mean, just -- I just wanted to make sure I hadn't missed any obvious dates, or anything, you know, because I don't trust my memory about dates. There were no comments that were -- resulted in any changes. Q. You had a -- what I would describe as a fairly long discussion with Mr. Melaugh this morning regarding source code rights originating with OEMs versus binary royalty streams and -- and source code rights that did not originate with OEMs. Do you recall, generally, those questions and answers? A. Oh, yes. Q. Did you have a view at the time of the APA as to whether Novell was entitled to keep source code fees that were paid to Novell or Santa Cruz based on the licensing of additional CPUs? A. Um -Q. Does your recollection -A. Well, I'm -Q. -- go into that specifically? A. Well, very specifically, Novell didn't have the right to collect anything from anyone. I mean, all collection had to be by us. So, you know, it was very clear. We were the interface to all customers and Page 99 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A -A. Yes. Q. -- which says: With respect to Schedule 1.1(b) of the Agreement, titled "Excluded Assets", Section V, Subsection A shall be revised to read: And let me stop there. A. Right. Q. Do you recall reviewing that schedule this morning -A. Yes. Q. -- with Mr. Melaugh? And paragraph A of Amendment Number 2 goes on to say that the Excluded Assets is revised to read, quote: All copyrights and trademarks, except for the copyrights and trademarks owned by Novell as of the date of the Agreement required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies, and the language goes on. Do you see that language? A. Yes. Page 101 all -- all billing. So there was never any intention that Novell could bill anybody for anything or collect any royalty from anyone. So it -- to the extent your question is, did they have the right to keep something, well, they would have had to have a right to collect it before they could keep it -Q. Okay. A. -- which they didn't. And as to, you know, specifically what -- you know, I'll say my recollection is that the only economic revenue stream they had an interest in was revenues resulting from existing binary contracts, and if there was any source that was -- source that was related somehow, and embedded in those binary contracts. And then, as I say, I just don't remember if any such source existed, but these contracts were very convoluted and had very strange provisions. So -- and I'm not willing to say for sure that there isn't. Q. I wanted to show you, Mr. Michels, what's been previously marked as Exhibit 1009, which is entitled "Amendment Number 2 to the Asset Purchase Agreement." Do you recognize this document? A. Looks like a document. Q. Wanted to direct your attention to paragraph 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Do you have a view as to the copyrights that Novell owned as of the date of the APA that were required for SCO to exercise its rights with respect to the acquisition of UNIX and the UnixWare technologies? A. Well, it would have been all the copyrights regarding the intellectual property we bought. Q. And why do you say that? A. Because we were buying all the intellectual property. I mean, I think the only reason it's written this way is because nobody was sure what all the copyrights were. I mean, there were hundreds -- I mean, you know, you're dealing with a business that had been around a long time, created millions of things, and had manuals and documents and source codes. I think this was just a blanket statement saying, yeah, whatever -whatever is -- whatever is part of the business you get, because -Q. Let me ask a very fundamental question that I probably didn't capture clearly in my previous question. Why, in your view, was it necessary or required for Santa Cruz to have the copyrights in order to exercise its rights with respect to UNIX and UnixWare technologies? MR. MELAUGH: Objection. Form. THE WITNESS: I mean, in the software business 26 (Pages 98 to 101) SHARI MOSS & ASSOCIATES P. 800.266.1598 F. 831.373.1141 www.kcscourtreporting.com (415 ) 402-0004 42672f4e-efa1-4162-a980-981f00dee25a Case 2:04-cv-00139-DAK-BCW Document 347-11 Page 102 Filed 05/29/2007 Page 68 of 69 Page 104 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the products are, you know, effectively, source code and documentation and screens, all of which are governed by copyrights. That's what -- that's what you own. That's the intellectual property of a source code product. It would be meaningless to own it if you didn't own the copyrights. I mean, that's -- that's what you would have to have. And there's no reason -- if you own it, there's no reason for anybody else to have it, other than, you know, this sort of residual thing we've talked about. BY MR. NORMAND: Q. Was it part of Santa Cruz's exercise of its rights with respect to the UNIX and UnixWare technologies to make copies of the UNIX and UnixWare source code? A. What do you mean? Q. Do you know, from your experience at Santa Cruz, whether, after the APA, Santa Cruz had occasion to make copies and distribute versions of the UNIX and UnixWare source code? A. Of course we did. What business were we in? Q. Do you have a view, from your experience at Santa Cruz, as to whether, after the APA, Santa Cruz had occasion to license the rights to use UNIX and UnixWare Page 103 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Did any attorney from Santa Cruz ever tell you any such thing? A. No. Q. Did any executive or any employee of Santa Cruz ever tell you any such thing? A. Not that I can recall. I think I would have laughed them out of my office. THE REPORTER: Um -MR. TIBBITTS: Did you get that? THE REPORTER: No. "I would have asked him out of my office"? THE WITNESS: Laughed them out of my office. If I was in a good mood. BY MR. NORMAND: Q. Now, I had directed your attention earlier to Exhibit 241, which was your declaration. Did you have a -- ever have occasion to speak with counsel for IBM about the prospect of a declaration? A. I did not speak to them specifically about a declaration. I did -- they asked me if I would come in and -- and answer a few questions, and I -- and I did. In fact, in this very -- in, I think, the room across the hall, actually, but -Q. Can you recall whom you spoke with? A. I -- no. Page 105 to other companies? A. Of course. Q. Do you recall any discussion or negotiation surrounding the language in paragraph A of Amendment Number 2 at the time Amendment Number 2 was executed? A. No. I mean, looking at these two documents here and now, I mean, it's pretty clear this is correcting an error in the previous document. I mean, there -- there was no money that changed hands for this. And if the previous document was correct, then this would be a huge concession. You would expect there would have been, you know, payment or consideration of some form. So you see something this massive being granted in the cleanup amendment, you know, I can only assume there must have been an error in the first document. That's -- it doesn't make any sense. Q. Was it ever your understanding when you were at Santa Cruz that in order to acquire any UNIX or UnixWare copyrights, Santa Cruz was obligated to go back to Novell and make a case as to why Santa Cruz needed the copyright? A. Of course -- of course not. Q. Did any attorney -A. We owned the business. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. What -A. I mean, if you give me some names, I might remember, but -Q. David Marriott? A. Could be. Q. Christopher Kao? A. No. Dave Marriott maybe. I don't know. They called me up and said we have some questions -Q. Dave -A. -- and would you come in? Q. Dave Saltarelli? A. No. Q. What came of those discussions, if anything? A. Never heard from them again. Q. Why do you think that is? Do you have a view? MR. MELAUGH: Objection to form. THE WITNESS: I -- I can only assume that what I said they didn't find helpful. BY MR. NORMAND: Q. Can you recall what you talked about with the counsel for IBM? A. Nah, I mean, general -- general questions about the -- the -- you know, the history of the company, and the relationship and the sale to Caldera, but I don't know specifically. 27 (Pages 102 to 105) SHARI MOSS & ASSOCIATES P. 800.266.1598 F. 831.373.1141 www.kcscourtreporting.com (415 ) 402-0004 42672f4e-efa1-4162-a980-981f00dee25a Case 2:04-cv-00139-DAK-BCW Document 347-11 Page 126 Filed 05/29/2007 Page 69 of 69 Page 128 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. MELAUGH: Q. So I understand, I think you answered a similar question from Mr. Normand, but I just want to understand your testimony on this point. Is it your opinion that -- just a moment. A. Take your time. Q. So turning to Amendment Number 2 here, Mr. Normand read you some text from this under paragraph A. I'll read it again, so we're all on the same page. It modifies the excluded assets to read: All copyrights and trademarks, except for the copyrights and trademarks owned by Novell as of the date of the Agreement required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies. What is your opinion as to the scope of that phrase, namely, "copyrights required for SCO to exercise its rights," and so on? What copyrights does that include? MR. NORMAND: Objection to form, and asked and answered. THE WITNESS: I mean, I believe the scope of the term here is all copyrights relating to the UNIX business -- source code, documentation, screens, you Page 127 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. MELAUGH: Q. Why are all those copyrights required for SCO to exercise its rights with respect to the acquisition? A. We took over -MR. NORMAND: Objection. Asked and answered. THE WITNESS: We took over the business. We were in the business of selling intellectual property. We were in the business of supporting the intellectual property. We were in the business of providing training. We were in the business of providing marketing materials. We couldn't do any of that without owning the copyrights. Q. Well, let's take SVRX licenses, for example. Was SCO, at the time, in the business of entering into new SVRX binary resource -A. Yes. Q. -- licenses? MR. NORMAND: Objection to form. BY MR. MELAUGH: Q. Both binary and resource licenses? A. Yes. If somebody wanted one, we were the place they would have got it. OpenServer was an SVRX license, and we were -- that was still our primary product. So we were still selling source and binary rights to OpenServer. It was all based on SVRX Page 129 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 know, training materials, you know, that -- brochures, marketing literature -- every -- you know, there's millions of copyright things in a business. BY MR. MELAUGH: Q. Were there any copyrights held by Novell that -- that you believe were excluded from this -- from the scope of this phrase? A. Netware. Q. Aside from the Netware copyrights, are there any copyrights -A. All of the things not related to the UNIX business -- Netware, all Novell's other products that we weren't buying, all their documentation, marketing materials, training materials for their products. I mean, we were only buying the UNIX business. Q. Are there any copyrights that related in any way to UNIX or UnixWare that you believe are excluded from the scope of this phrase? MR. NORMAND: Objection to form. THE WITNESS: I -- I mean, the only copyrights would be, you know, like how to hook up your Netware server to Unix. I mean -- you know, I mean, I'm sure there were documents that were in the Netware pile that discussed Unix, but anything that's in the -- in the UNIX business would have been included. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 licenses. Q. But for SVRX binary licenses at least, SCO owed an obligation to Novell to turn over revenue from those licenses; isn't that right? MR. NORMAND: Objection to form. THE WITNESS: I'm sorry? BY MR. MELAUGH: Q. For binary SVRX licenses, SCO -A. That's an OpenServer. Q. I'm talking about SVRX. A. But OpenServer is SVRX. Q. For the SVRX -- what's -- then for the older versions of -- of UNIX, the ones that are, for example, listed -- for the older versions of -- of -- of SVRX? A. OpenServer is one of the oldest, but I'm not sure what distinction you're making. Q. Well, I'm trying to determine the scope of the -- of the licenses that SCO had to turn over revenue to Novell from. What is the scope of those licenses? MR. NORMAND: Objection to form. Asked and answered. THE WITNESS: Now, there was a specific list of revenue streams from specific customers that constituted the residual royalties, and there were many documents that went back and forth itemizing what 33 (Pages 126 to 129) SHARI MOSS & ASSOCIATES P. 800.266.1598 F. 831.373.1141 www.kcscourtreporting.com (415 ) 402-0004 42672f4e-efa1-4162-a980-981f00dee25a

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