SCO Grp v. Novell Inc

Filing 487

DECLARATION of Brent O. Hatch re 486 Notice of Conventional Filing OF SCO'S MEMORANDUM IN OPPOSITION TO NOVELLS MOTION FOR SUMMARY JUDGMENT ON ITS FOURTH CLAIM FOR RELIEF AND EXHIBITS THERETO filed by SCO Group. (Hatch, Brent)

SCO Grp v. Novell Inc

Doc. 487

Brent O. Hatch (5715) Mark F. James (5295) HATCH, JAMES & DODGE, PC 10 West Broadway, Suite 400 Salt Lake City, Utah 84101 Telephone: [phone] Facsimile: [phone] David Boies (admitted pro hac vice) Robert Silver (admitted pro hac vice) Edward Normand (admitted pro hac vice) BOIES SCHILLER & FLEXNER LLP 333 Main Street Armonk, New York 10504 Telephone: [phone] Facsimile: [phone] Devan V. Padmanabhan (admitted pro hac vice) DORSEY & WHITNEY LLP 50 south Sixth Street, Suite 1500 Minneapolis, Minnesota 55402 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff, The SCO Group, Inc.

Stephen N. Zack (admitted Pro Hac Vice) BOIES SCHILLER & FLEXNER LLP Bank of America Tower, suite 2800 100 Southeast Second Street Miami, Florida 33131 Telephone: [phone] Facsimile: [phone] Stuart Singer (admitted pro hac vice) BOIES SCHILLER & FLEXNER LLP 401 East Las Olas Blvd. Suite 1200 Fort Lauderdale, Florida 33301 Telephone: [phone] Facsimile: [phone]

_______________________________________________________________________________ IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH

THE SCO GROUP, INC., a Delaware corporation, Plaintiff/Counterclaim-Defendant, vs. NOVELL, INC., a Delaware corporation, Defendant/Counterclaim-Plaintiff.

DECLARATION OF BRENT O. HATCH IN SUPPORT OF SCO'S MEMORANDUM IN OPPOSITION TO NOVELL'S MOTION FOR SUMMARY JUDGMENT ON ITS FOURTH CLAIM FOR RELIEF Civil No.: 2:04CV00139 Judge Dale A. Kimball Magistrate Brooke C. Wells

Dockets.Justia.com

I, Brent O. Hatch, declare as follows: 1. I am a citizen of the United States, am over the age of 21, and am competent to

testify to the matters set forth herein. 2. I am an attorney at law duly licensed to practice before all the Courts of the State

of Utah, and an attorney with the firm of Hatch, James & Dodge PC, counsel for the Plaintiff/Counterclaim-Defendant, The SCO Group, Inc., in the pending motion. 3. documents: EXHIBIT 1 DOCUMENT DESCRIPTION Licensing Order Form between Silicon Graphics and Unix System Laboratories, dated August 27, 1993, bearing Bates range SCO0984582-620 Unix System V History obtained from http://en.wikipedia.org/wiki/System_V Excerpts from UnixWare Binder, titled " UnixWare 2 Sales Kit" Excerpts from UnixWare Binder, Binder 2, titled "UnixWare 7 Sales Training Kits. Asset Purchase Agreement between The Santa Cruz Operation, Inc. and Novell, Inc., dated September 19, 1995, bearing Bates range SCO1185893-990 Declaration of William M. Broderick in Support of SCO's Memorandum in Opposition to IBM's Motion to Compel Production of Documents on SCO's Privilege Log, dated October 21, 2005 Declaration of John Maciaszek, dated November 9, 2006 Excerpts from the Deposition Transcript of Christopher Sontag, dated March 14, 2007 Excerpts from Deposition Transcript of John Maciaszek, dated March 21, 2007 Attached as hereto and filed herewith are true and correct copies of the following

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DOCUMENT DESCRIPTION Report and Declaration of Thomas A. Cargill, dated May 29, 2007 Declaration of William Broderick, dated December 11, 2006 Declaration of John Maciaszek, dated December 11, 2006 Declaration of Jean Acheson, dated December 11, 2006 Supplement and Licensing Order form between NCR Corporation (AT&T GIS) and Novell, dated July 13, 1995, bearing Bates range SCO1499353-86 Supplement and Licensing Order Form between Unisys Corporation and Novell Supplement 230, dated October 20, 1995, bearing Bates range SCO1039894925 Collection of e-mails among transition team, bearing Bates range SCO1299938-82 Supplement and Licensing Order Form between Stratus Computer, Inc. and SCO, dated March 17, 2007, bearing Bates range SCO0977706-36 Declaration of Christopher Sontag, dated December 11, 2006 Software Agreement between Alps Electric Company and Nihon SCO, dated March 29, 1996, bearing Bates range SCO1042581-619 Supplement and Licensing Order Form between Unisys Corporation and SCO Supplement 233, dated May 28, 1996, bearing Bates range SCO1040467-96 Supplement and Licensing Order Form between NCR Corporation and SCO, dated March 31, 1997, bearing Bates range SCO0977740-71 Amendment Number 1 to the Asset Purchase Agreement, dated December 6, 1995, bearing Bates range SCO1186000-17 Excerpts from the Deposition Transcript of Joseph A. LaSala, dated February 8, 2007 Excerpts from the Novell 30(b)(6) Deposition Transcript of Gregory Jones, dated May 10, 2007

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EXHIBIT 25

DOCUMENT DESCRIPTION Excerpts from the Deposition Transcript of Jean Acheson, dated March 20, 2007 Excerpts from the Deposition Transcript of Theresa Dulin, dated April 13, 2007 Excerpts from the SCO 30(b)(6) Deposition Transcript of William Broderick, dated May 14, 2007 Software Agreement Supplement between Unisys and AT&T Supplement 128, dated January 30, 1990, bearing Bates range SCO1159013-26 Software Agreement Supplement between Unisys and Unix System Laboratories Supplement 202, dated October 31, 1991, bearing Bates range SCO1062340-74 Document titled, "Quarterly Royalty Amounts Reported by Unisys," bearing Bates number NOV 000033013 Document titled, "Unisys Royalty Report for SCO UnixWare and UNIX Systems," 2000, bearing Bates range NOV 000033527-32 Letter from B. Broderick to C. Lamont regarding Unisys agreements with SCO, dated May 26, 1996, bearing Bates number NOV 000011393 Letter regarding software agreement between Unisys and SCO, dated June 25, 1996, bearing Bates range SCO1040448-50 Product Announcement for SCO OpenServer 6, dated May 27, 2004, bearing Bates range SCO1672873-83 Software Agreement between SCO and AT&T Information Systems, Inc., dated May 6, 1987, bearing Bates range SCO1449552-636 Excerpts from the Deposition Transcript of Alok Mohan, dated February 23, 2007 Article titled, "SCO to Seek Fees from Linux Users," dated January 14, 2003, bearing Bates range SCO1265967-68

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EXHIBIT 38

DOCUMENT DESCRIPTION Document titled, "OpenServer Release 6 Sales Guide," bearing Bates range SCO1687209-31 Amendment to Software Agreement between IBM, Novell, and SCO (Buyout Agreement), dated April 26, 1996, bearing Bates range NOV 000038339-42 Letter from A. Mohan to R. Frankenberg regarding SVRX licenses, dated March 28, 1996, bearing Bates number SCO1234265 Letter from A. Mohan to R. Frankenberg regarding SVRX licenses, dated April 10, 1996, bearing Bates SCO1290675-76 Letter from A. Mohan to R. Frankenberg regarding proposed IBM royalty buyout, dated April 19, 1996, bearing Bates range SCO1298086-87 Letter from A. Mohan to J. Tolonen regarding Novell-IBM Buyout, dated July 15, 1996, bearing Bates range NOV 000046904-05 Declaration of Lawrence A. Bouffard, dated November 8, 2006 Amendment Number 2 to the Asset Purchase Agreement, dated October 16, 1996, bearing Bates range SCO1451873-75 Press Release titled, "SCO Establishes SCOsource to License UNIX Intellectual Property," dated January 22, 2003, bearing Bates range SCO1277300-02 Document titled, "SCO System V for Linux Sales Guide ­ Internal Use Only," dated February 25, 2003, bearing Bates SCO1537786-805 Document titled, "SCOsource Announcement," dated December 11, 2002, bearing Bates range SCO1275727-46 Declaration of William M. Broderick, dated January 25, 2008 Letter from R. Tibbitts at SCO to Fortune 1500 Companies with UNIX Licenses regarding violations of intellectual property rights in UNIX technology, dated December 19, 2003, bearing Bates range SCON0047606-09 Declaration of Jean Acheson, dated January 25, 2008

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EXHIBIT 52

DOCUMENT DESCRIPTION Press Release titled, "SCO Announces Intellectual Property License for Linux," dated August 5, 2003 Press Release titled, "SCO Establishes SCOsource; New Division Created to Insure and Protect Intellectual Property in Linux Environments," dated December 11, 2002, bearing Bates range SCO1270120-23 Press Release titled, "SCO Establishes SCOsource; New Division Created to License and Protect UNIX Intellectual Property," dated December 11, 2002, bearing Bates range SCO1270136-39 Press Release titled, "SCO Establishes SCOsource," dated December 11, 2002, bearing Bates range SCO1270095-96 Declaration of John Maciaszek, dated January 24, 2008 Press Release titled, "SCO Registers UNIX Copyrights and Offers Unix License," dated July 21, 2003 Declaration of Christopher M. Sontag, dated January 24, 2008 Press Release titled, "SCO Suspends Distribution of Linux Pending Intellectual Property Clarification; Announces Greater Focus on UNIX and SCOx Strategy," dated May 14, 2003, bearing Bates range SCO1269615-16 Excerpts from book titled, Novell's Guide to UnixWare 2 Document titled, "SCO forum 2003 SCOsource Update," bearing Bates range NOV 000012724-50 Intellectual Property Compliance License for SCO Unix Rights between SCO and Computer Associates International, dated August 11, 2003, bearing Bates range SCON0048531-38 Document titled, "Price Book ­ North America Price Book for The SCO Group Software Products," dated August 2003, bearing Bates range SCO1551865-84 Intellectual Property Compliance License for Linux between SCO and Questar Corporation, dated January 16, 2004, bearing Bates range QC00003-10

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EXHIBIT 65

DOCUMENT DESCRIPTION Excerpts from the Questar 30(b)(6) Deposition Transcript of Steve Welker, dated March 22, 2007 Declaration of Christopher Sontag, dated May 18, 2007 Technology License Agreement between Novell and The Santa Cruz Operation, Inc., dated December 6, 1995, bearing Bates range SCO1186018-22 E-mail from G. Jones to D. Wright, et al., regarding SCO request for Novell USL Documents, dated November 15, 2002, bearing Bates number NOV 000039586 E-mail from G. Jones to J. Lundberg, et al., regarding SCO request for Novell UNIX Documents, dated November 20, 2002, bearing Bates number NOV 000039578 E-mail from G. Jones to C. Ledbetter, et al., regarding SCO Linux "Licensing" Program, dated December 4, 2002, bearing Bates range Nov 000039579-80 E-mail from G. Jones to D. Wright regarding SCO Request for Novell UNIX Documents, dated November 22, 2002, bearing Bates range NOV 00003959192 Excerpts from the Deposition Transcript of Gregory Jones, dated January 26, 2007 Excerpts from the Deposition Transcript of Darl McBride, dated March 27, 2007 Excerpts from the Novell 30(b)(6) Deposition Transcript of Joseph A. LaSala, dated May 16, 2007 Release, License and Option Agreement between Microsoft and SCO, dated April 30, 2003, bearing Bates range SCO1300033-46 Amendment 3 to Microsoft Release, License and Option Agreement with SCO, dated July 21, 2003, bearing Bates range SCO1300028-29 Amendment 4 to Microsoft Release, License and Option Agreement with SCO, dated July 31, 2003, bearing Bates range SCO1300026-27

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EXHIBIT 78

DOCUMENT DESCRIPTION Amendment 1 to Microsoft Release, License and Option Agreement with SCO, dated June 23, 2003, bearing Bates number SCO1300031 Amendment 2 to Microsoft Release, License and Option Agreement with SCO, dated July 14, 2003, bearing Bates number SCO1300030 Software License Agreement between Sun Microsystems and SCO, dated February 25, 2003, bearing Bates range SCO1287208-21 Software License and Distribution Agreement between Unix System Laboratories and Sunsoft, dated March 17, 1994, bearing Bates range NOV 000011858-80 Excerpts from the Sun 30(b)(6) Deposition Transcript of Marc Hamilton, dated July 23, 2007 Article titled, "Sun's Schwartz Speaks out on Linux, SCO (Interview)," dated September 19, 2003 Clarification of License Grant to UnixWare and Openserver Drivers between Sun Microsystems and SCO, dated April 29, 2003, bearing Bates range SCO1605380-93 Product announcement for UnixWare Release 7.1.3, dated November 20, 2002, bearing Bates range SCO1270099-110 Product announcement for SCO UnixWare Release 7.1.4, dated May 3, 2004, bearing Bates range SCO1700830-44 Declaration of Andrew W. Nagle, dated January 25, 2008 Intellectual Property Assignment, dated May 7, 2001 Letter from C. Richard to J. Acheson regarding Sublicensed Product Royalty Report, dated August 3, 2000, bearing Bates range NOV 000033626-30

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I declare under penalty of perjury that the foregoing is true and correct.

Dated this 25th day of January, 2008. __/s/ Brent O. Hatch____________ Brent O. Hatch

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CERTIFICATE OF SERVICE Plaintiff/Counterclaim-Defendant, The SCO Group, Inc., hereby certifies that a true and correct copy of the foregoing was served on Defendant/Counterclaim-Plaintiff, Novell, Inc., on this 25th day of January, 2008, electronically via the Court's CM/ECF system to the following: Thomas R. Karrenberg John P. Mullen Heather M. Sneddon ANDERSON & KARRENBERG 700 Bank One Tower 50 West Broadway Salt Lake City, UT 84101 Michael A. Jacobs Matthew I. Kreeger Kenneth W. Brakebill MORRISON & FOERSTER 425 Market Street San Francisco, CA 94105-2482

__/s/ Brent O. Hatch____________