SCO Grp v. Novell Inc

Filing 643

MOTION in Limine No. 1 TO PRECLUDE MISLEADING STATEMENTS OR EVIDENCE CONCERNING LANGUAGE IN THE APA REMOVED BY AMENDMENT NO. 2 filed by Plaintiff SCO Group. (Normand, Edward) Modified docket text on 2/10/2010 (asp).

SCO Grp v. Novell Inc

Doc. 643

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] Attorneys for Plaintiff, The SCO Group, Inc.

Devan V. Padmanabhan (admitted pro hac vice) DORSEY & WHITNEY LLP 50 South Sixth Street, Suite 1500 Minneapolis, Minnesota 55402 Telephone: [phone] Facsimile: [phone] Stuart Singer (admitted pro hac vice) Sashi Bach Boruchow (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., by and through the Chapter 11 Trustee in Bankruptcy, Edward N. Cahn, Plaintiff/Counterclaim-Defendant, vs. Civil No. 2:04 CV-00139 NOVELL, INC., a Delaware corporation, Defendant/Counterclaim-Plaintiff. Judge Ted Stewart SCO'S MOTION IN LIMINE NO. 1 TO PRECLUDE MISLEADING STATEMENTS OR EVIDENCE CONCERNING LANGUAGE IN THE APA REMOVED BY AMENDMENT NO. 2

Dockets.Justia.com

Plaintiff, The SCO Group, Inc. ("SCO"), moves in limine to preclude misleading statements concerning language in the Asset Purchase Agreement ("APA") that was changed by Amendment No. 2 to that Agreement. ARGUMENT The APA was amended by Amendment No. 2 to replace the language regarding the exclusion of "all copyrights." The Tenth Circuit's decision makes clear that the APA is to be interpreted together with Amendment No. 2. The Court expressly stated that "Amendment No. 2 must be considered together with the APA as a unified document." SCO Group, Inc. v. Novell, Inc., 578 F.3d 1201, 1211 (10th Cir. 2009). Amendment No. 2 was not "meant to substantively change the intent of the APA," but "merely clarified or affirmed the intent of the APA." Id. at 1214 n.2. As the Court of Appeals further noted: "Even if we considered the language of the APA and Amendment No. 2 to be mutually antagonistic, California law still dictates that we construe them together, following Amendment No. 2 wherever its language contradicts the APA." Id. Novell previously made extensive arguments to the Court referring to the language excluding "all copyrights" that was replaced by Amendment No. 2. That language is no longer in the APA and it would be misleading for Novel to make arguments in the presence of the jury that suggest the APA in fact still contains such language. SCO recognizes that in presenting extrinsic evidence it may be necessary to refer to the language that existed before Amendment No. 2 was adopted. In doing so, however, the parties should be clear that this is not the current state of the contractual language that is to be considered by the jury.

Accordingly, SCO requests that the Court enter an order in limine to preclude misleading statements by the parties concerning language in the un-amended APA that was changed by Amendment No. 2 to that Agreement, and for counsel to inform witnesses to abide by this order.

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DATED this 8th day of February, 2010.

HATCH, JAMES & DODGE, P.C. Brent O. Hatch Mark F. James BOIES, SCHILLER & FLEXNER LLP David Boies Robert Silver Stuart H. Singer Edward Normand Sashi Bach Boruchow DORSEY & WHITNEY LLP Devan V. Padmanabhan Counsel for The SCO Group, Inc. By: ___/s/ Edward Normand________ Edward Normand Boies, Schiller & Flexner LLP 333 Main Street Armonk, NY 10504 Telephone: [phone] Facsimile: 914-749-8300 [e-mail]

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CERTIFICATE OF SERVICE I, Edward Normand, hereby certify that on this 8th day of February 2010, a true and correct copy of the foregoing SCO'S MOTION IN LIMINE NO. 1 was filed with the Court and served via electronic mail to the following recipients: Sterling A. Brennan David R. Wright Kirk R. Harris Cara J. Baldwin WORKMAN | NYDEGGER 1000 Eagle Gate Tower 60 East South Temple Salt Lake City, UT 84111 Thomas R. Karrenberg Heather M. Sneddon ANDERSON & KARRENBERG 700 Bank One Tower 50 West Broadway Salt Lake City, UT 84101 Michael A. Jacobs Eric M. Aker Grant L. Kim MORRISON & FOERSTER 425 Market Street San Francisco, CA 94105-2482 Counsel for Defendant and Counterclaim-Plaintiff Novell, Inc. /s/ Edward Normand Edward Normand Boies, Schiller & Flexner LLP 333 Main Street Armonk, NY 10504 Telephone: [phone] Facsimile: 914-749-8300 [e-mail]

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