SCO Grp v. Novell Inc

Filing 694

MEMORANDUM in Opposition re 639 MOTION in Limine No.14 to Exclude Certain Testimony from Jean Acheson for Lack of Personal Knowledge and Violation of Parol Evidence Rule filed by Plaintiff SCO Group. (Attachments: # 1 Exhibit 1)(Hatch, Brent)

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. 14 TO EXCLUDE CERTAIN TESTIMONY FROM JEAN ACHESON 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 Jean Acheson on the grounds that Ms. Acheson did not participate in negotiating the APA or Amendment No. 2. Novell adopts an unduly restrictive interpretation of the law and of the nature of Ms. Acheson's experience and testimony. 1 Ms. Acheson was a revenue manager for Novell in 1995 and participated in the transition in which Novell worked to transfer the entire UNIX and UnixWare business to Santa Cruz. In the course of that process, she acquired an understanding of the parties' intent under the APA, including through company meetings and through her own effort to interpret and apply the APA. Ms. Acheson concluded from that process that Novell had transferred its intellectual property to SCO. (Ex. 1 at 270, 274.) Such testimony is admissible. Ms. Acheson has personal knowledge of the parties' course of performance. Ms. Acheson need not have personally negotiated the terms of the APA or Amendment No. 2 in order to give admissible testimony of the parties' intent. SCO Group, Inc. v. Novell, Inc., 578 F.3d 1201, 1211, 1217 (10th Cir. 2009). Her 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 the language of the APA or Amendment No. 2 is relevant. SCO will not present any testimony from Ms. Acheson in which she presently reads or interprets the language of the APA or Amendment No. 2. Novell's arguments go to the weight of Ms. Acheson's testimony, not its relevance.

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This is the third 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.

CONCLUSION
SCO respectfully submits, for the reasons set forth above, that the Court should deny Novell's Motion in Limine No. 14.

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 19th day of February, 2010, a true and correct copy of the foregoing SCO'S OPPOSITION TO NOVELL'S MOTION IN LIMINE NO. 14 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: [phone] Facsimile: [phone]

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