SCO Grp v. Novell Inc

Filing 819

Memorandum of Points and Authorities on the Limitations on Novell's Trial Testimony Imposed by Novell's Own Privilege Objections filed by Plaintiff SCO Group. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(Hatch, Brent)

SCO Grp v. Novell Inc

Doc. 819 Att. 1

EXHIBIT 1

Dockets.Justia.com

May 10, 2007

THE SCO GROUP, INC. v. NOVELL, INC.

GREGORY JONES

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH _________________________________________________________ THE SCO GROUP, INC., Plaintiff, vs. NOVELL, INC., Defendant. ) ) ) ) ) ) ) ) ) _________________________________________________________ Case No. 2:04CV00139 Videotaped Deposition of: GREGORY JONES

May 10, 2007 9:53 a.m.

Hatch, James & Dodge 10 West Broadway, Suite 400 Salt Lake City, UT 84111

Sharon Morgan, CSR, RPR, CRR Notary Public in and for the State of Utah GARCIA & LOVE 801.538.2333

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know. Q. Do you know if anyone from Novell or their

outside counsel used a model agreement to start with as a way of creating the APA? A. Q. I don't know. To what extent was Mr. Tolonen involved in

the negotiation or drafting of the APA? A. Well, from his declaration, as he states, he

was involved in helping to develop the business terms that needed to be reflected in the APA and he also reviewed the final form of the APA before it was executed and had conversations, it seems, during the course of the negotiation. of his involvement. Q. Could you or your counsel tell me whether So that's my understanding

Novell is taking the position that discussions between anyone on the Novell side and any of their outside counsel regarding the drafting of the APA is privileged? MR. BRAKEBILL: You'll have to be a little

bit more clear in terms of what you mean. MR. NORMAND: I take it that Novell's

position is some such communications might relate to the question of business advice as opposed to legal advice. Is that as a general statement fair to say. GARCIA & LOVE 801.538.2333

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MR. BRAKEBILL: MR. NORMAND:

That's true. So in order -- I mean, I'm

trying to see if there's blocks of questions I can pursue or strike out, but I take it it may be a question-to-question issue. MR. BRAKEBILL: Yes, that's probably the best

That's, unfortunately, probably the easiest There simply may not be any --

way to handle it.

although there theoretically could have been a privileged communication about advice, there may not be any more knowledge of any and therefore the question may be appropriate to ask. There might be an

"I don't know" or "not that I'm aware of." MR. NORMAND: But I take it as a general

matter, Novell's view is not that it has waived the question of privileged communications between its outside counsel and the employees of Novell with respect to the negotiation of the APA. MR. BRAKEBILL: Correct, but that doesn't

mean that there is unprivileged information that cannot be discovered. And at least in terms of the

information that has been submitted in the chart and the declarations, these would be communications that are not privileged. Q. (By Mr. Normand) Do you know whether

GARCIA & LOVE 801.538.2333

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Q.

It's not something that you spoke about with

Mr. Bradford or Mr. Braham or anyone else and they gave you some understanding of it apart from the literal language used here? A. I can't recall anything like that. Let me

just say that, you know, to the extent I discussed it with anyone, it was a privileged conversation. And

your specific question about, you know, third -- you know -- yeah, so I just wanted to make that point. Q. Let me make sure I understand. If you had

spoken with Mr. Braham and he explained his understanding of this section, your view is your discussion with him would be a privileged discussion? A. Q. A. Well, I didn't discuss it with him. I just need to know even generically -I'll just tell you. So if I'm meeting with

my own counsel who's helping me prepare for the deposition, I regard that as privileged. Q. I just mean to ask about a discussion with

Mr. Braham that you may have had. A. I said I didn't have that discussion with

him, so... Q. You had discussions with Mr. Braham about

other topics, right? A. Right. GARCIA & LOVE 801.538.2333

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Q.

Do you or your counsel regard those

discussions with him as privileged ones in which I can't ask about the nature of the discussions? A. Yeah, he's -- I would say that the

information that's available in the declaration that he filed is obviously not privileged. Anything beyond

that information I think would be privileged communication. Q. If he was describing to you Novell's intent

under the APA on an issue that he hadn't addressed in his declaration? privileged. comes up. A. Yeah, I mean, so I would generally regard it I don't understand how that's

Maybe we can just come at it when it

as privileged -MR. BRAKEBILL: If he was doing it at the

direction of counsel, it's part of work product and litigation and would be privileged. MR. NORMAND: There's an overlapping issue of So we can

his preparation for his 30(b)(6) testimony. confront that, I guess, when the time comes. Q. (By Mr. Normand)

In any event, to the best

of your recollection, you didn't discuss this section in 6.3(c) with any of the clients that you spoke with? A. That's right. GARCIA & LOVE 801.538.2333