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)

SCO Grp v. Novell Inc

Doc. 694 Att. 1

EXHIBIT 1

Dockets.Justia.com

Jean Acheson

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March 20, 2007

` 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, Defendants. ) ) ) ) ) ) ) ) ) ) )

Deposition of: JEAN ACHESON

Case No. 2:04CV00139 Judge Dale A. Kimball

MARCH 20, 2007 * 9:30 a.m.

Location:

Anderson & Karrenberg 700 Chase Tower

50 West Broadway Salt Lake City, Utah 84101

Reporter:

Diana Kent, CSR, RPR, CRR

Notary Public in and for the State of Utah Videographer: Max Nelson, CLVS

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Jean Acheson
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March 20, 2007
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immediate question that I'm asking you and then we can -- I can follow up with questions, although I appreciate you elaborating. A. Okay. Q. Can you summarize that answer? In other words, based on all those communications that you had involving Novell personnel and Novell management around the time of the APA and after the closing, what was your basic understanding of the basic terms of what Novell had sold to Santa Cruz and what it had retained, if anything? MR. PERNICK: Objection. Vague. Lacks foundation. A. Basically Novell had sold the entire UNIX product line and its assets, its intellectual property, its contracts, the third-party royalty agreements. There were other agreements. They were all assigned to SCO and beyond that. And then there was the administrative situation in order to handle the binary royalties. MR. PERNICK: Move to strike. Q. So is your testimony that the only thing that Novell retained out of the UNIX business was the right to what you call the SVRX binary royalties? MR. PERNICK: Objection. Lacks
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A. Yes. Q. -- were there some discussions as to the rights that Novell had retained under the APA? A. Yes, I believe there were. Q. And based on those discussions, what was your understanding of what Novell had retained under the APA? MR. PERNICK: Objection. Lacks foundation. A. The SVRX binary royalty stream for the customers that were existing at the time of the APA. Q. Can you and I agree, just as a shorthand, that what you have just described as what Novell retained, we can just call that the binary royalty stream just to make this a little shorter? Can we have that agreement? MR. PERNICK: Objection. Q. Can we agree on that? Can you and I agree on that, Ms. Acheson? A. Yes. Q. So when you hear me say the binary royalty stream I will mean what I believe you just said: The binary royalties from the existing customers at the time of the APA. A. That's fine.
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foundation. Leading. A. That is correct. Q. Mr. Pernick asked you many questions about instances when you or someone else at Novell or Santa Cruz would have expressly stated that Novell did not have a right after the sale under the APA to anything other than what you call the binary royalty stream. Do you recall those questions? A. Yes, I do. Q. And you stated a couple times that there were some discussions; do you recall saying that? MR. PERNICK: Objection to form. Mischaracterizes testimony. Lacks foundation. Leading. A. Sorry. Could you repeat? Q. I'm just trying to short-circuit this for everybody. But based on his objections lets me walk through everything and we will have to stay here later. A. Okay. MR. GONZALEZ: But these are basic things that she has already testified to before. Q. (By Mr. Gonzalez) During these communications that are the basis of your understanding of the basic terms --

Q. Okay. So during these communications that you had which involved Novell people that are the basis of your understanding of what Novell retained, were there discussions with Novell people about that subject matter of what Novell had retained? MR. PERNICK: Objection. Vague. Lacks foundation. A. Yes. Q. And who were some of those people? A. Cindy Lamont, Barb Cavalla, Terry Dulin. Q. Those three names you just mentioned, which meetings would those have -A. Those were usually -Q. -- would those have occurred? A. Those were usually more specific agreements around the reporting of the royalties to Novell. Q. Going back a little further in time. When you were meeting with the transition team, were there discussions about the rights that Novell had retained under the APA, namely this binary royalty stream? A. Among other things, yes, I believe there was some. It was just very generalized because, once again, this was just sort of an understood point. MR. PERNICK: Move to strike.

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Jean Acheson
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Nonresponsive. Q. And when you testified just now and earlier today that this was something that everybody understood, what do you mean by that, more precisely? A. Because in the explanations it was basically understood that while the entire product line went to SCO, including the customer relationships, the customer agreements, the third-party royalties, joint development arrangements, the products, the source code tapes for the entire hierarchy of products, the intellectual property and stuff, it was just understood that the one thing that SCO was unable to purchase from Novell was this ongoing SRVX revenue stream. Q. And so besides your conversations with Ms. Lamont and Ms. Dulin and Ms. Cavalla -- is that the name? A. Yes. Q. Were there other conversations about what Novell had retained during the transition team meetings, for example? A. Yes, there probably was. Q. And were there conversations or communications about that same subject matter, namely what Novell had retained, during the company-wide
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fees under new source code licenses. Do you recall having conversations about that with Mr. Pernick? A. Yes. Q. And do you recall, what was your response? MR. PERNICK: Objection to form. A. I believe I stated that if it was a new customer to the SVRX, a customer that did not exist at the time of the transfer under the APA, that those fees would belong to SCO. Q. Did you respond further -MR. PERNICK: Objection to form. Q. -- to Mr. Pernick's questions about that? A. I believe I also stated that it really wasn't a situation that was thought about because normally if a customer was coming and they wanted to be able to develop a derivative work, it would have been in SCO's best interest to sell UnixWare to them, to keep them on the latest product. And usually customers, when they are developing a derivative work, wish the latest technology. MR. PERNICK: Move to strike. Nonresponsive. Q. What is your understanding today as to whether SCO or Novell will be entitled or is entitled to revenue for any new SVRX licenses whether for
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meeting at Novell? MR. PERNICK: Objection to form. Vague. A. That, I don't remember. I believe that there was. That, once again, it was the entire product line, but that there were segments where we were going to have a continued relationship with Novell. MR. PERNICK: Move to strike. Nonresponsive. Q. When you say "continued relationship with Novell," what do you mean by that? A. Well, that NetWare was going to be embedded within the UnixWare code. And the relationship, the administrative relationship between the two companies for the processing of the binary royalty, SVRX binary royalty stream. Q. Do you recall Mr. Pernick asking you about whether there were communications during these meetings around the time of the APA that involved Novell, communications about -- strike that. Let me simplify that. Focusing again on the meetings that occurred with Novell or at Novell during the time of the APA, Mr. Pernick asked you if there was ever a discussion as to who would have the rights to the

source code or for binary code? MR. PERNICK: Objection. Lacks foundation. A. It's my understanding that if there is a new customer who wishes to purchase a UNIX product from SCO, that this would be, you know -- that did not exist at the time of the APA, so it's a new customer, that they would -- that that would be revenue due to SCO. Q. And what is your basis for that understanding? A. Once again, discussions with management and others around the transition period and later. And legal, of course. Q. And when you say "discussions around the transition period and later, including with legal," you are referring to people at which company? A. Well, if it was during the transition period it would be both. If it was later, it would normally be mostly my management. It was really kind of a moot point I don't remember later discussions coming up with Novell in regards to it. Q. Do you recall a series of questions by Mr. Pernick about your education and professional background?

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