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. 2

EXHIBIT 2

Dockets.Justia.com

Page 1
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH --oOo--

THE SCO GROUP, INC., Plaintiff/Counterclaim Defendant, vs. NOVELL, INC., Defendant/Counterclaim Plaintiff, _______________________________________/ No. 2:04CV00139

Videotaped Rule 30 (b)(6) Deposition of AARON J. ALTER

_______________________

Friday, April 27, 2007

Reported by: Leslie Rockwood CSR No. 3462 Job No. 193580B

Esquire Deposition Services 216 E. 45th STREET . NEW YORK, NY 10017 .

1-800-944-9454

Page 13 13:16:12 13:16:17 13:16:24 13:16:28 13:16:30 13:16:31 13:16:34 13:16:38 13:16:41 1 2 3 4 5 6 7 8 9
privilege. of a day or that we copied him on everything. feedback from him, is my recollection. MR. NORMAND: I take it the nature of We'd get

Mr. Alter's discussions with Mr. Bradford is privileged territory; is that right? MR. PARNES: Well, I will assert the

Obviously, Counsel, to the extent there's a And I don't know what

waiver, we can talk about that.

discussions you all have had about waiving any communications with David Bradford, for example. But I

13:16:44 10 13:16:47 11 13:16:49 12 13:16:51 13 13:16:53 14 13:16:55 15 13:16:59 16 13:17:02 17 13:17:05 18 13:17:09 19 13:17:11 20 13:17:13 21 13:17:18 22 13:17:21 23 13:17:29 24 13:17:40 25

need to assert it, and then I can let counsel waive it, if he wants. MR. BRAKEBILL: I'll state for the record

that we believe that there may be some discussions between Mr. Bradford and Mr. Alter or Mr. Braham or Wilson Sonsini that may not be privileged, and to the extent that Mr. Bradford was operating in a business capacity and no advice was being transmitted back and forth, just for the record. Q. BY MR. NORMAND: Let me ask if you have a

view as to whether during this time, the time leading up to the execution of the APA, Mr. Bradford was acting in a business capacity or a legal capacity for Novell? A. So I don't have a specific recollection. I

would say that David -- David was the senior in-house

Esquire Deposition Services 216 E. 45th STREET . NEW YORK, NY 10017 .

1-800-944-9454

Page 45 14:31:22 14:31:25 14:31:29 14:31:34 14:31:38 14:31:41 14:31:42 14:31:46 14:31:55 1 2 3 4 5 6 7 8 9
I think SCO was in a position to bargain for that which it needed to conduct its business from the point of acquisition forward. Q. Do you have a view as to whether Santa Cruz

believed it was acquiring the UNIX and UnixWare copyrights? A. I don't have a view other than the plain

language of the exhibit that says it's excluded. Q. What did Wilson Sonsini and Novell discuss in

14:31:59 10 14:32:04 11 14:32:05 12 14:32:07 13 14:32:11 14 14:32:15 15 14:32:15 16 14:32:18 17 14:32:21 18 14:32:25 19 14:32:27 20 14:32:33 21 14:32:41 22 14:32:45 23 14:33:08 24 14:33:10 25

1995 regarding the prospects of retaining intellectual property in UNIX and UnixWare? MR. PARNES: Well, I'll have to instruct not I don't know if you -- if

to answer based on privilege.

there's any waiver issue that you wanted to instruct us on. MR. BRAKEBILL: I would ask him whether he

knows, first of all, a foundational question and see whether there's any issue of instruction. THE WITNESS: I don't personally recall, and

while I am the Wilson designee here, I would suggest in having read Tor's declaration that he was the primary negotiator, and I believe he answers that question quite specifically in his declaration. Q. BY MR. NORMAND: Was there ever a time during

the negotiation of the APA that Novell intended to

Esquire Deposition Services 216 E. 45th STREET . NEW YORK, NY 10017 .

1-800-944-9454

Page 46 14:33:14 14:33:19 14:33:30 14:33:31 1 2 3 4 5 6 7 8 14:33:32 9 14:33:32 10 14:33:34 11 14:33:37 12 14:33:37 13 14:33:40 14 14:33:44 15 14:33:47 16 14:33:50 17 14:33:56 18 14:33:59 19 14:34:02 20 14:34:22 21 14:34:26 22 14:34:30 23 14:34:34 24 14:34:48 25
Q. transfer the UNIX and UnixWare copyrights to Santa Cruz? MR. PARNES: read it back. (The record was read by the reporter as follows: "QUESTION: Was there ever a time during the I missed the question. Can you

negotiation of the APA that Novell intended to transfer the UNIX and UnixWare copyrights to Santa Cruz?") MR. PARNES: You can answer to the extent it

doesn't reveal privileged communication, if you recall. THE WITNESS: I don't recall. Was there ever a time during

BY MR. NORMAND:

the negotiation of the APA that Novell communicated to Santa Cruz that Novell intended to transfer the UNIX and UnixWare copyrights? A. Not that I'm aware of. But, I mean, I'm

assuming, I mean, this agreement has an integration clause and sets out the understanding between the parties. Q. So... Do you know whether, in Mr. Braham's view,

there was a time during the negotiation of the APA when Novell communicated to Santa Cruz that Novell intended to transfer the UNIX and UnixWare copyrights? THE WITNESS: Mark?

Esquire Deposition Services 216 E. 45th STREET . NEW YORK, NY 10017 .

1-800-944-9454

Page 47 14:34:48 14:34:50 14:34:53 14:34:56 14:34:58 14:35:00 14:35:03 14:35:05 14:35:05 1 2 3 4 5 6 7 8 9
MR. PARNES: You can answer. I think he asked whether you knew about Tor's understanding -THE WITNESS: I don't know about Tor's

understanding in this specific regard. Q. BY MR. NORMAND: So in order for you to speak

on behalf of the law firm in that respect, you'd need to know Mr. Braham's views on that subject. say? A. Well, it would be fair to say, and also my Is that fair to

14:35:08 10 14:35:13 11 14:35:17 12 14:35:21 13 14:35:28 14 14:35:30 15 14:35:33 16 14:35:36 17 14:35:39 18 14:35:43 19 14:35:45 20 14:35:48 21 14:35:48 22 14:35:57 23 14:36:00 24 14:36:01 25

only -- I would just reiterate that the asset schedules were negotiated, reviewed, there was an integration clause. Everybody was represented by counsel. On its

face, it seems that the deal that was struck retained the copyrights and trademarks and patents as intellectual property on Schedule 1.1(b). Q. Just to be fair, what I was trying to figure

out is if I could speak with you about if there ever was a change in intent, how that unfolded. that's not something you can speak to? A. of. Q. You mentioned, I think near the beginning of Do you recall using It's not something that I recall or am aware But I take it

the testimony today, a term sheet. that phrase? A. Yes.

Esquire Deposition Services 216 E. 45th STREET . NEW YORK, NY 10017 .

1-800-944-9454

Page 48 14:36:01 14:36:03 14:36:10 14:36:14 14:36:16 14:36:31 14:36:38 14:36:40 14:36:43 1 2 3 4 5 6 7 8 9
Q. Do you know whether according to the term sheet, Novell would transfer the UNIX and UnixWare copyrights to Santa Cruz? A. I don't recall whether that was addressed in

the term sheet. Q. Did Wilson Sonsini ever tell, other than

Mr. Bradford, anyone from Novell that the copyrights in UNIX and UnixWare would not transfer? MR. PARNES: I'll instruct not to answer on

14:36:46 10 14:36:52 11 14:37:02 12 14:37:05 13 14:37:08 14 14:37:22 15 14:37:27 16 14:37:29 17 14:37:33 18 14:37:41 19 14:37:52 20 14:37:55 21 14:37:58 22 14:38:08 23 14:38:14 24 14:38:18 25

the ground of attorney-client privilege. Q. BY MR. NORMAND: Now, in the APA, did Novell

intend to give Santa Cruz the right to make copies of the UNIX and UnixWare source code? A. I can't imagine how they wouldn't. Without

looking at it, I would speculate that -- or tell you that in order to run that business going forward, they would have to have use of those assets. So I think the

distinction between ownership and use is one I would draw. Q. And just to cover the distinction, in the

view of the law firm, did the APA give Santa Cruz the right to make copies of UNIX and UnixWare source code? A. So I -- the making copies part, I don't -- if

you have the -- if you are able to use the software -- or excuse me, the code, I would imagine that the ability to

Esquire Deposition Services 216 E. 45th STREET . NEW YORK, NY 10017 .

1-800-944-9454