SCO Grp v. Novell Inc

Filing 646

MOTION in Limine No. 3 TO EXCLUDE REFERENCE TO NOVELLS MONETARY JUDGMENT AGAINST SCO filed by Plaintiff SCO Group. (Normand, Edward) Modified docket text on 2/10/2010 (asp).

SCO Grp v. Novell Inc

Doc. 646

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, Civil No. 2:04 CV-00139 vs. NOVELL, INC., a Delaware corporation, Defendant/Counterclaim-Plaintiff. Judge Ted Stewart SCO'S MOTION IN LIMINE NO. 3 TO EXCLUDE REFERENCE TO NOVELL'S MONETARY JUDGMENT AGAINST SCO

Dockets.Justia.com

Plaintiff, The SCO Group, Inc. ("SCO"), respectfully moves for an order in limine to preclude reference to Novell's monetary judgment against SCO in this case. ARGUMENT After this Court's (Kimball, J.) entry of summary judgment against SCO in August 2007, the parties conducted a bench trial in April and May 2008 concerning Novell's counterclaims against SCO. Novell, which initially sought approximately $30 million in royalties to which it claimed it was entitled, obtained a judgment for approximately $2.5 million. The Tenth Circuit Court of Appeals subsequently reversed the August 2007 entry of summary judgment and affirmed Novell's monetary judgment. SCO Group, Inc. v. Novell, Inc., 578 F.3d 1201 (10th Cir. 2009). For the upcoming trial, references to and evidence of Novell's monetary judgment against SCO is not relevant to any of the issues to be tried, under Rule 401 of the Federal Rules of Evidence. Rule 401 defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Telum, Inc. v. E.F. Hutton Credit Corp., 859 F.2d 835 (10th Cir. 1988). No aspect of the monetary judgment that Novell obtained relates to or touches upon the questions the jury will now consider. The judgment does not have any bearing on or relevance to the issues for the jury to decide. In addition, any probative value in such evidence would be substantially outweighed by the danger of unfair prejudice to SCO. The fact alone that Novell has obtained the judgment may improperly prejudice the jury.

Accordingly, SCO requests that the Court enter an order in limine precluding the parties and their representatives and witnesses from referencing, or eliciting or offering testimony respecting, the monetary judgment Novell previously obtained in this case.

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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. 3 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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