SCO Grp v. Novell Inc

Filing 693

MEMORANDUM in Opposition re 638 MOTION in Limine No. 13 to Exclude Certain Testimony From Lawrence Bouffard for Lack of Personal Knowledge and Violation of Parol Evidence Rule filed by Plaintiff SCO Group. (Attachments: # 1 Exhibit 1 - FILED UNDER SEAL)(Hatch, Brent)

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Brent O. Hatch (5715) Mark F. James (5295) HATCH, JAMES & DODGE, PC 10 West Broadway, Suite 400 Salt Lake City, Utah 84101 Telephone: (801) 363-6363 Facsimile: (801) 363-6666 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: (914) 749-8200 Facsimile: (914) 749-8300 Attorneys for Plaintiff, The SCO Group, Inc. 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: (954) 356-0011 Facsimile: (954) 356-0022 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. 13 TO EXCLUDE CERTAIN TESTIMONY FROM LAWRENCE BOUFFARD FOR LACK OF PERSONAL KNOWLEDGE AND VIOLATION OF PAROL EVIDENCE RULE Civil No. 2:04 CV-00139 Judge Ted Stewart Novell seeks to preclude SCO from offering certain testimony of Larry Bouffard on the grounds that Mr. Bouffard did not participate in negotiating the APA or Amendment No. 2. Novell's interpretation is contrary to the Tenth Circuit's determination that this is an ambiguous contract, as amended, and that extrinsic evidence is relevant for the purpose of determining the intent to transfer the copyrights. 1 Mr. Bouffard worked in sales for Novell during the transition period in which Novell transferred the entire UNIX and UnixWare business to Santa Cruz. In the course of that process, he acquired an understanding of the parties' intent under the APA, including through company meetings and through his own effort to interpret and apply the APA during 1996. Mr. Bouffard explained to his co-workers in a contemporaneous e-mail, from early 1996, that Novell had sold the UNIX and UnixWare business "lock, stock and barrel." He confirmed at deposition that his understanding at that time was that "the intellectual property for UNIX had been transferred to SCO." (Ex. 1 at 141-42.) He acknowledged that as of today, as a legal matter, he does not know whether Novell sold all of its UNIX and UnixWare assets. (Id. at 84.) Mr. Bouffard's e-mail and testimony are admissible. Mr. Bouffard has personal knowledge of the parties' course of performance. He need not have personally negotiated the terms of the APA or Amendment No. 2 to give admissible testimony of the parties' intent. His testimony constitutes relevant extrinsic evidence of the parties' course of performance under the APA, which the Tenth Circuit has specifically identified as a relevant perhaps even the best evidence of the parties' intent. Consistent with well-established California law, the Tenth Circuit has necessarily rejected the argument that only the testimony of the individuals who negotiated 1 This the second of Novell's eight similar motions (Motions in Limine Nos. 12-19) regarding witness testimony. SCO sets forth the controlling law governing the admissibility of such testimony in its Memorandum in Opposition to Novell's Motion in Limine No. 12, and hereby incorporates that discussion. the language of the APA or Amendment No. 2 is relevant. SCO will not present any testimony from Mr. Bouffard in which he presently reads or interprets the language of the APA or Amendment No. 2. SCO intends to designate portions of Mr. Bouffard's deposition testimony to be played at trial, and Novell is entitled to offer counter-designations and/or to object to such designations as it deems appropriate. Novell's arguments go to the weight of Mr. Bouffard's testimony, not its relevance. CONCLUSION SCO respectfully submits, for the reasons set forth above, that the Court should deny Novell's Motion in Limine No. 13. 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. 2 CERTIFICATE OF SERVICE I, Brent O. Hatch, hereby certify that on this 19th day of February, 2010, a true and correct copy of the foregoing SCO'S OPPOSITION TO NOVELL'S MOTION IN LIMINE NO. 13 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 Brent O. Hatch HATCH, JAMES & DODGE, P.C. 10 West Broadway, Suite 400 Salt Lake City, Utah 84101 Telephone: (801) 363-6363 Facsimile: (801) 363-6666 3

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