SCO Grp v. Novell Inc

Filing 366

RESPONSE re 362 Sealed Document,, (SCO's Opposition to Novell's Evidentiary Objections to SCO's Exhibits Submitted in Connection with Summary Judgment Motions) filed by Defendant Novell, Inc.. (Attachments: # 1 Appendix A# 2 Appendix B)(Sneddon, Heather)

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SCO Grp v. Novell Inc Doc. 366 Att. 2 Case 2:04-cv-00139-DAK-BCW Document 366-3 Filed 07/03/2007 Page 1 of 6 APPENDIX B Case 2:04-cv-00139-DAK-BCW 1 2 3 4 5 6 Document 366-3 Filed 07/03/2007 Page 2 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION ________ ) ) ) ) Plaintiff/Counterclaim-Defendant, ) ) ) vs. ) ) ) ) ) ) ) ) 7 THE SCO GROUP, INC. 8 9 10 Case No. 2:04-CV-139 DAK 11 NOVELL, INC., 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Reporter: Defendant/Counterclaim-Plaintiff. BEFORE THE HONORABLE DALE A. KIMBALL DATE: JUNE 4, 2007 REPORTER'S TRANSCTIPT OF PROCEEDINGS MOTION HEARING VOLUME II REBECCA JANKE, CSR, RMR 1 Case 2:04-cv-00139-DAK-BCW Document 366-3 Filed 07/03/2007 Page 3 of 6 1 any inconsistency, is a firm and solid plain language 2 basis on which the Court should grant summary judgment 3 that we received the copyrights. 4 I will discuss at the end of my argument the 5 Section 204 copyright transfer issue. 6 e, 7 again, the extrinsic evidence fully supports our 8 position. Now, it is well established that extrinsic But if one turned to the extrinsic evidenc 9 evidence is admissible to give effect to the intent of 10 the parties, and we submit that, as we have before, at 11 tab 10 in our book, what Novell has done in response is 12 raise a whole series of evidentiary objections, mainly 13 in a 60-page set of objections filed after their reply 14 brief on Tuesday of last week. 15 The short answer to those is, first of all, 16 it's silly to suggest that there would be separate 17 evidence of intent regarding, for example, the Bill of 18 Sale. You look at the transaction as a whole and what is At tab 11 we cite California 19 the intent of that deal. 20 Civil Code, which makes clear that particular clauses of 21 a contract are subordinate to its general intent. At tab 22 12, we briefly deal with the litany of objections which 23 are being raised to this and other of the extrinsic 24 evidence. The Court doesn't need to reach it if it 25 agrees with our plain language interpretation. 51 Case 2:04-cv-00139-DAK-BCW 1 Document 366-3 Filed 07/03/2007 Page 4 of 6 But clearly what the people who put the deal 2 together at the time believed they were transferring is 3 relevant evidence. As we will see, those witnesses had It's not hearsay 4 personal knowledge of the transaction. 5 when a Novell witness makes that statement about what was 6 said. And this doesn't turn on issues of expert opinion. 7 And, to the extent we use any depositions from the IBM 8 case, those certainly stand equal to declarations which 9 we can also use on summary judgment. 10 If we turn to tab 14, we have a list of the 11 individuals, and it gives a little bit about the 12 foundation on which they testified from personal 13 knowledge. And if we turn to tab 15, I'd like to go over 14 some of that in a little more detail, and, again, 15 starting with the Novell witnesses. 16 Your Honor, I've litigated a lot of cases over 17 the past 20 years, and I'm sure Your Honor has litigated 18 many cases. I can't think of a case where -- you have 19 cases where maybe you get one witness on the other side 20 who agrees with your position, and you're fortunate to 21 get that. I can't think of a case where virtually every 22 witness, with the exception of a couple of lawyers we 23 will talk about in a moment, but every businessman 24 involved in the transaction in structuring the deal, from 25 the Novell side, agrees with our position, starting with 52 Case 2:04-cv-00139-DAK-BCW Document 366-3 Filed 07/03/2007 Page 5 of 6 1 the SVRX revenues. 2 there. 3 4 5 6 But we hope we don't need to get Thank you very much, Your Honor. THE COURT: Thank you, Mr. Jacobs. Thank you both. I will take these motions under advisement. I 7 appreciate your efficient arguments and your brilliant 8 briefs. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (Whereupon the proceedings were concluded.) We will be in recess. 85 Case 2:04-cv-00139-DAK-BCW 1 2 3 STATE OF UTAH 4 Document 366-3 Filed 07/03/2007 Page 6 of 6 REPORTER'S CERTIFICATE ) ) ss. ) 5 COUNTY OF SALT LAKE 6 7 I, REBECCA JANKE, do hereby certify that I am a 8 Certified Court Reporter for the State of Utah; 9 That as such Reporter I attended the hearing of 10 the foregoing matter on June 4, 2007, and thereat 11 reported in Stenotype all of the testimony and 12 proceedings had, and caused said notes to be transcribed 13 into typewriting, and the foregoing pages numbered 1 14 through 85 constitute a full, true and correct record of 15 the proceedings transcribed. 16 That I am not of kin to any of the parties and 17 have no interets in the outcome of the matter; 18 And hereby set my hand and seal this 11th day 19 of June, 2007. 20 21 22 23 24 25 _______________________________ REBECCA JANKE, CSR, RPR, RMR 86

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