SCO Grp v. Novell Inc

Filing 690

MEMORANDUM in Opposition re 635 MOTION in Limine No. 10 to Preclude SCO from Presenting Argument Relating to Issues Stayed Pending Arbitration filed by Plaintiff SCO Group. (Hatch, Brent)

SCO Grp v. Novell Inc

Doc. 690

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

Stuart Singer (admitted pro hac vice) [e-mail] Sashi Bach Boruchow (admitted pro hac vice) [e-mail] 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. NOVELL, INC., a Delaware corporation, Defendant/Counterclaim-Plaintiff. SCO'S OPPOSITION TO "NOVELL'S MOTION IN LIMINE NO. 10 TO PRECLUDE SCO FROM PRESENTING ARGUMENT RELATING TO ISSUES STAYED PENDING ARBITRATION" Civil No. 2:04 CV-00139 Judge Ted Stewart

Dockets.Justia.com

Consistent with the stay previously ordered, SCO agrees that neither party should introduce evidence or make arguments at trial relating to the stayed claims that Novell has violated the APA or TLA by distributing SUSE Linux, that Novell's distribution of SUSE Linux infringes on SCO's copyrights, or that Novell has misappropriated SCO's UNIX technology in SUSE Linux. In addition, neither party should refer to the SuSE arbitration proceeding as to which the above claims have been stayed. SCO submits that any order issued to this affect should specifically apply to both parties. Insofar as Novell's motion suggests otherwise, however, SCO does not agree that neither party may introduce evidence or make arguments regarding the meaning and interpretation of the TLA (independent of whether Novell has breached it), because that meaning and interpretation is relevant to the meaning and interpretation of the amended APA. Conclusion SCO submits that the Court should order both parties (i) that they may not introduce evidence or make arguments at trial relating to the stayed claims that Novell has violated the APA or TLA by distributing SUSE Linux, that Novell's distribution of SUSE Linux infringes on SCO's copyrights, or that Novell has misappropriated SCO's UNIX technology in SUSE Linux. In addition; and (ii) that neither party should refer to the SuSE arbitration proceeding as to which the above claims have been stayed. The Court should further order, to the extent it deems necessary, that the parties may introduce evidence and make arguments regarding the meaning and interpretation of the TLA (independent of whether Novell has breached it).

DATED this 19th day of February, 2010.

By: /s/ Brent O. Hatch 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 Counsel for The SCO Group, Inc.

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CERTIFICATE OF SERVICE I, Brent O. Hatch, hereby certify that on this 19,th day of February, 2010, a true and correct copy of the foregoing SCO'S OPPOSITION TO "NOVELL'S MOTION IN LIMINE NO. 10" 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. By: /s/ Brent O. Hatch HATCH, JAMES & DODGE, P.C. Brent O. Hatch

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