SCO Grp v. Novell Inc

Filing 657

MOTION for Daubert Hearing to Disqualify Dr. Gary Pisano filed by Defendant Novell, Inc.. (Attachments: # 1 Text of Proposed Order)(Brennan, Sterling)

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SCO Grp v. Novell Inc Doc. 657 Att. 1 WORKMAN | NYDEGGER A PROFESSIONAL CORPORATION Sterling A. Brennan (Utah State Bar No. 10060; E-mail: David R. Wright (Utah State Bar No. 5164: E-mail: Kirk R. Harris (Utah State Bar No. 10221; E-mail: Cara J. Baldwin (Utah State Bar No. 11863; E-mail: 1000 Eagle Gate Tower 60 E. South Temple Salt Lake City, Utah 84111 Telephone: (801) 533-9800 Facsimile: (801) 328-1707 MORRISON & FOERSTER LLP Michael A. Jacobs (Admitted Pro Hac Vice; E-mail: Eric M. Acker (Admitted Pro Hac Vice; E-mail: Grant L. Kim (Admitted Pro Hac Vice; E-Mail: 425 Market Street San Francisco, California 94105-2482 Telephone: (415) 268-7000 Facsimile: (415) 268-7522 Attorneys for Defendant and Counterclaim-Plaintiff Novell, Inc. IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION THE SCO GROUP, INC., a Delaware corporation, Plaintiff, vs. NOVELL, INC., a Delaware corporation, Defendant. AND RELATED COUNTERCLAIMS. Case No. 2:04CV00139 [PROPOSED ORDER] ORDER GRANTING NOVELL, INC.'S DAUBERT MOTION TO DISQUALIFY DR. GARY PISANO Judge Ted Stewart 1 This matter is before the Court on "Novell, Inc.'s Daubert Motion to Disqualify Dr. Gary Pisano" (the "Motion"), filed in behalf of Defendant and counterclaim-Plaintiff Novell, Inc. ("Novell") in the above-captioned action. The Court, having considered the arguments and submissions of the parties in connection with the Motion, and being fully advised in the premises, GRANTS the Motion, and finds and orders as follows: FINDINGS 1. Dr. Pisano's proposed opinion testimony regarding but-for market penetration does not satisfy the requirements of Federal Rules of Evidence 702 and 703 because: a. Dr. Pisano's opinion is based on a survey regarding which he lacks sufficient foundational knowledge; b. Dr. Pisano's opinion is based on a survey that does not address price or need and therefore cannot be used to measure demand; c. Dr. Pisano's hypothesis that concern with indemnification is a proxy for willingness to purchase a SCOsource license is not based upon sufficient facts or data; and d. Dr. Pisano has not ruled out obvious alternative explanations for Linux users' decisions not to buy SCOsource licenses. 2. Dr. Pisano's proposed opinion testimony as to the size of the licensing market is inadmissible under Federal Rules of Evidence 402 and 403 because it is irrelevant and likely to cause confusion and mislead the jury regarding damages. 2 ORDER Novell Inc.'s Daubert Motion to Disqualify Dr. Gary Pisano is GRANTED. Dr. Pisano's testimony and expert report will be precluded from presentation at trial and Dr. Pisano will not be permitted to testify. Dated: ____________________ __________________________________ Hon. Ted Stewart United States District Court Judge Respectfully Submitted By: WORKMANNYDEGGER A PROFESSIONAL CORPORATION MORRISON & FOERSTER LLP By: /s/ Sterling A. Brennan Sterling A. Brennan Attorneys for Defendant Novell, Inc. 3

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