SCO Grp v. Novell Inc

Filing 858

NOTICE OF FILING OF OFFICIAL TRANSCRIPT for dates of March 11, 2010-Jury Trial before Judge Ted Stewart, re 567 Notice of Appeal,. Court Reporter/Transcriber Patti Walker, CSR, RPR, CP, Telephone number [phone]. NOTICE RE REDACTION OF TRANSCRIPTS: Within 7 business days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the parties intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy and forms are located on the court's website at www.utd.uscourts.gov. Please read this policy carefully. If no Notice of Intent to Redact is filed within the allotted time, this transcript will be made electronically available on the date set forth below. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/10/2010. Redacted Transcript Deadline set for 5/20/2010. Release of Transcript Restriction set for 7/19/2010. (Attachments: # 1 Part Two, # 2 Part Three)(jmr) Modified by removing restricted text on 7/19/2010 (rks).

SCO Grp v. Novell Inc

Doc. 858

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IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION

THE SCO GROUP, INC., a Delaware corporation, Plaintiff,

) ) ) ) ) ) ) Case No. 2:04-CV-139TS

NOVELL, INC., a Delaware corporation, Defendant.

_________________________________) AND RELATED COUNTERCLAIMS. )

_________________________________)

BEFORE THE HONORABLE TED STEWART --------------------------------March 11, 2010 Jury Trial

REPORTED BY: Patti Walker, CSR, RPR, CP 350 South Main Street, #146, Salt Lake City, Utah 84101

Dockets.Justia.com

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1 2 3 4 5 6 7 8 9 10 11 12 13 For Defendant: 14 15 16 17 18 19 20 21 22 23 24 25 For Plaintiff:

APPEARANCES

Brent Hatch HATCH JAMES & DODGE 10 West Broadway, #400 Salt Lake City, Utah 84010 Stuart Singer BOIES SCHILLER & FLEXNER 401 East Las Olas Blvd., #1200 Fort Lauderdale, Florida 33301 Edward Normand BOIES SCHILLER & FLEXNER 33 Main Street Armonk, New York 10504

Sterling Brennan WORKMAN NYDEGGER 60 East South Temple, #1000 Salt Lake City, Utah 84111 Eric Acker Michael Jacobs MORRISON & FOERSTER 425 Market Street San Francisco, California

94105

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Witness Jack Messman Deposition James Wilt Deposition Alok Mohan Deposition

INDEX Examination By PAGE 397 440 455 488 515 Mr. Normand (Direct) 541

Douglas Michels Deposition Burt Levine Deposition William Broderick

EXHIBITS RECEIVED INTO EVIDENCE: Plaintiff's 94 Plaintiff's 407 Plaintiff's 96 Plaintiff's 105 Plaintiff's 180 Defendant's J-10 Defendant's X-3 Defendant's I-5 Plaintiff's 580 Plaintiff's 4 404 407 411 416 470 485 532 539 550 556

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SALT LAKE CITY, UTAH; THURSDAY, MARCH 11, 2010; 8:30 A.M. PROCEEDINGS THE COURT: Good morning.

Do we have anything before we bring the jury in? MR. SINGER: I don't believe so, Your Honor. I

did want to note that we have decided not to call Mr. Davis, so we simply have depositions today. We have five On

depositions lined up, four of them are ready to proceed.

the fifth one, there are two objections, which perhaps at a break could be resolved. But other than that, we have all

depositions for today all set ready to go. THE COURT: MR. BRENNAN: All right. Your Honor, just on that later

point, my impression is the deposition that Mr. Singer has referenced is the deposition of Mr. Levine; am I accurate? MR. SINGER: THE COURT: MR. BRENNAN: it at a break. Yes. The one over which there is dispute. If the Court would like, we could do

On the other hand, I don't think this issue

has been properly or timely tendered to the Court in line with the instructions you gave us before. do it on the fly, we can do that. THE COURT: Is there anything in writing that I So if you want to

can look at during the break? MR. SINGER: We can give you a copy of the

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transcript.

The objection is to two passages. So you are objecting to something

THE COURT:

designated by defendants? MR. SINGER: are objecting. MR. BRENNAN: The very short version, without I think the other way around, they

trying to argue it now, is we believe this is contrary to the motion in limine on this witness. I think the express There are

terms of the motion in limine would prevent this. some other problems with the question and answer. THE COURT:

If you would give me what you have in

writing and I'll try to look at it at the first break and decide whether I need argument or whether or not I can rule. MR. BRENNAN: tugged. THE COURT: I just said I would like to look at I'm sorry. I had my shirt sleeve

what you have in writing and I'll decide whether or not I need further argument or whether or not I might be able to decide. You are correct that the timing on this is not what I don't want to waste trial time

the Court had requested. either. MR. BRENNAN:

What we have at this juncture, Your

Honor, we have Your Honor's motion in limine, we have the testimony that's at issue, we have the other testimony that formed the basis for the Court' motion in limine. What we

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don't have is a formal written position on that. THE COURT: I think I should be able to discern If you would just

whether I need it from what you have. give that to Mr. Copeland right now. MR. SINGER:

Just for the record, the issue

concerns the highlighted portion of page 161, line 11, through page 162, line ten of Burt Levine's deposition. MR. BRENNAN: Thank you.

Also for the record, Your Honor, what I will be tendering does have our handwriting. offensive to the Court. I hope that's not

But this is the Court's motion in

limine with the highlighted portions, and also from the same deposition the witness's testimony essentially saying he didn't know anything about Amendment No. 2. That page

referenced is page number 190, lines 11 through 22. THE COURT: MR. BRENNAN: THE COURT: All right. Thank you, Your Honor. Thank you.

Counsel, if there is nothing else, I'll have Ms. Malley bring the jury in. Was Mr. Davis the elderly gentleman who has been sitting through trial? MR. SINGER: THE COURT: problem? Yes. Is his health not good, is that the

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MR. SINGER:

He does have some health issues, that

was one factor that played a role in our decision. THE COURT: MR. SINGER: Okay. We looked at, though, the fact

that -- just to get us back on schedule, we concluded we didn't need him. THE COURT: I just hate for someone to suffer

through three days of trial and not get the reward of being able to testify. Maybe he wouldn't deem it to be a reward. I think he is disappointed. As am I, Your Honor.

MR. SINGER: MR. JACOBS:

(Jury present) THE COURT: Good morning, ladies and gentlemen.

Earlier in the trial it was explained to you what a deposition is. And today the witnesses that you will be

hearing will all be by way of video depositions, depositions that were taken and videos were made of them. One of

them -- I believe the first one will be Mr. Messman. Is that correct? MR. SINGER: THE COURT: That's correct, Your Honor. I think I should indicate to the jury

that he will be called as a live witness later in the trial, but plaintiffs wanted to put this part of his deposition before you earlier in the trial than he will be available. So you will hear from him again.

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Mr. Singer, with that introduction, if you would like to go ahead, please. MR. SINGER: Thank you, Your Honor.

We call, through deposition, the deposition of Jack Messman that was taken in Boston, Massachusetts on February 7th, 2007. (Jack Messman Deposition) I would like to begin with your background. When did

you join Novell? A I've been associated with Novell since -- I think it I was a member of a venture capital firm called

was 1981.

Safeguard Scientifics, and we had a significant investment in Novell, which was called Novell Data Systems at the time. And it was a hardware manufacturer manufacturing a PC disk drive and a printer. And we decided to change the strategy

of the company in '81 because the competitors' products were significantly lower. So I became CEO for about two years I then

and turned the company into a software company.

hired Ray Noorda as my replacement, and other than a brief period I've been on the board of Novell since then. Then in

2001 Novell acquired Cambridge Technology Partners, where I was the CEO, and after the merger I became the CEO of the combined companies. And my predecessor at Novell, Eric

Schmidt, left to become CEO of Google. Q Did you have any personal involvement in the

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transaction by which Novell sold certain assets to Santa Cruz? A I was a director of the company at the time. Other

than that, I had no personal involvement. Q So as a director -- do you recall if that transaction

required board approval? A Q A Q Yes, it did. And you approved the transaction; is that correct? The board approved the transaction. Other than considering and approving the board, at the

board level, you had no other involvement in the negotiating of the asset purchase agreement and other documents related to that transaction; is that fair? A Q Yes. This is Exhibit 1, which has previously been marked,

and it's the asset purchase agreement between Santa Cruz Operation and Novell dated September 19, 1995. Have you ever read this agreement from cover to cover? A Q A Q A Yes. When did you first do so? I would say it was in 2003. Can you be more exact? I would say it was after SCO raised certain issues in

the marketplace. Q Well, more precisely, do you recall if you had read the

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asset purchase agreement prior to a press release which was issued by Novell on May 28th, 2003? A May 28th. I think that's the press release in response

to a letter that Darl sent me from SCO, and I probably didn't read it. I did glance at it, but I didn't study it

in-depth until sometime after that. Q Do you recall ever having a discussion with anyone

prior to May 28th, 2003 on what was intended by the asset purchase agreement? A Q No. That would include, then, by definition, the

individuals who had been involved in negotiating the deal and drafting the documents back in 1995? A Q A Q Yes. You never spoke with them prior to May 28th, 2003? Yes. About the intent of the asset purchase agreement. Did

you have any personal involvement in the negotiation of Amendment No. 2 to the asset purchase agreement? A Q No. Did you have any involvement with the drafting of

Amendment No. 2? A Q No. Were you surprised to learn of the existence of

Amendment No. 2?

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A Q

Yes. You had not previously seen it in the course of your

work at Novell? A Q A Q A I had not seen a signed copy. Had you seen an unsigned copy? Yes. When did you see an unsigned copy of Amendment 2? It was just prior to the conversation that I had with

Darl in early June. Q My question precisely is: Did you take certain steps

to determine whether Novell had executed Amendment No. 2? A Q Yes. Did you determine whether or not Novell had executed

Amendment No. 2? A Q Ultimately we did. How much time elapsed before you made that

determination? A My recollection is that we found our version of the

signed copy a couple months after Darl sent me a signed copy. Q Is it true that Novell had in its possession at all

relevant times in 2003 a signed copy of Amendment No. 2? A No. It was only after Darl sent it to me that we had a

signed copy. Q Did you subsequently find a signed copy in Novell's

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files? A Q A couple of months later we did. Did you have any reason to believe that that copy was

not in Novell's files throughout the period in question, say back from the beginning of 2003? A I don't know where -- we didn't know where it was, and

we looked in all the normal spots, and ultimately we found it in the finance files rather than in the legal department or the contracts department. Q So let me see if I can just clarify this point. You

had Amendment No. 2 in the finance department at Novell, correct? A Q Yes, that's where it was found. You have no reason to believe that it wasn't in the

finance department of Novell say throughout the year 2003? A Q A Q I have no reason to believe that, right. It's just you weren't aware that it was in those files? I was not aware of it. Do you know if others at Novell were aware that

Amendment No. 2 was in fact signed and in the finance department files? A To my knowledge, nobody knew that we had a signed copy

of Amendment 2. MR. SINGER: Your Honor, at this point we would

like to put Amendment No. 2, which is in evidence as part of

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SCO Exhibit No. 1, before the jury, which is what the witness is looking at in the deposition. THE COURT: MR. ACKER: Any opposition to that? I think the deposition should just be

played as it is, Your Honor, as opposed to interjecting exhibits throughout it. MR. SINGER: the exhibit. Your Honor, the questioning is about The

The witness has the exhibit before him.

exhibit is in evidence. deposition.

It's just the jury following the

What we propose to do is put the exhibits on --

certain exhibits which we would move into evidence, if they have not already been admitted into evidence -- this one is in evidence -- and ask that certain portions that are relevant be blown up, published to the jury, then taken down and continue with that passage of the deposition, as we would do if the witness was here at trial. MR. ACKER: If they wanted to do that and

highlight the deposition that way, they should have asked questions at the deposition to highlight those portions of the exhibit as opposed to this sort of presentation. THE COURT: correct. Mr. Acker, I believe Mr. Singer is

If Mr. Messman was here, this would have been the So the Court will

appropriate time to allow the publishing. permit it. MR. SINGER:

Mr. Calvin, could you blow up -- what

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is, for the record, before the jury is Amendment No. 2, which is part of Trial Exhibit SCO 1, and would ask if you could blow up the first part, section A. to section A, highlight that section. May I read this into the record? THE COURT: MR. SINGER: Go ahead and read it into the record. A, with respect to schedule 1.1(b) of From the top down

the agreement titled Excluded Assets, section V, subsection A shall be revised to read: All copyrights and trademarks,

except for the copyrights and trademarks owned by Novell as of the date of the agreement required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies. However, in no event shall Novell be

liable to SCO for any claim brought by any third party pertaining to said copyrights and trademarks. I would like to resume with the playing of Mr. Messman's deposition. THE COURT: Q you. A Q Yes. If you'd look at section A. Do you see it refers back If you would, please.

If we turn to Amendment 2, which is also in front of

to a schedule of excluded assets, and it states that, all copyrights and trademarks, except -- and this would be an item of excluded assets, you understand that, correct?

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A Q

Yes. You understood that when you read this in 2003 for the

first time? A Q Uh-huh. This was modifying the assets that Novell got to keep

under the agreement? A Q Yes. It would be all copyrights and trademarks, except for

the copyrights and trademarks owned by Novell as of the date of the agreement required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies. A Q Yes. I would like to show you what -MR. SINGER: We would like to, at this point, put Do you see that?

before the jury the exhibit, which is the letter to Mr. McBride dated May 28th, 2003. this into evidence previously. Exhibit 94. I would like to move Exhibit 94 into evidence at this time. THE COURT: MR. ACKER: THE COURT: Mr. Acker. No objection, Your Honor. It will be admitted. And I thought I moved

This would be SCO Trial

(Plaintiff's Exhibit 94 was received into

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evidence.) MR. SINGER: If I could similarly publish this to

the jury in the same fashion. THE COURT: I'm assuming that this letter is now

going to be testified to by Mr. Messman, that's why we're doing this; is that correct? MR. SINGER: discussed. Mr. Calvin, can you go down to the second page, page 2, and the last paragraph. This is from the letter of May 28th, 2003, from Jack Messman to Darl McBride. This paragraph reads, Yes. This is now going to be

importantly, and contrary to SCO's assertions, SCO is not the owner of the UNIX copyrights. Not only would a quick

check of U.S. Copyright Office records reveal this fact, but a review of the asset transfer agreement between Novell and SCO confirms it. To Novell's knowledge, the 1995 agreement

governing SCO's purchase of UNIX from Novell does not convey to SCO the associated copyrights. We believe it unlikely

that SCO can demonstrate that it has any ownership interest whatsoever in those copyrights. Apparently, you share this

view, since over the last few months you have repeatedly asked Novell to transfer the copyrights to SCO, requests that Novell has rejected. Finally, we find it telling that

SCO failed to assert a claim for copyright or patent

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infringement against IBM. Please continue with the deposition. Q -- has previously been marked as Exhibit 1012, which is Is

a letter from you to Mr. McBride dated May 28th, 2003.

this a letter which was sent by Novell -- in fact, sent by you as CEO of Novell to Mr. McBride, who was the president and CEO of the SCO Group? A Q A Q Yes. Did you approve this letter before it was sent? Yes. Do you recognize that in this letter you made the

statement that appears in paragraph -- the last paragraph on page 2, quote, SCO is not the owner of the UNIX copyrights; is that correct? A Q Yes. At the time when you stated this to SCO, had you fully

reviewed personally the entire APA? A Q I think I had at this time. You had not been read -- in fact, you were not aware of

Amendment No. 2? A Q That's right. At the time you made this statement on May 28th, 2003,

you had not spoken about the intent of the APA with any of the individuals who had previously been at Novell and had negotiated that deal or drafted those documents, correct?

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A

I did not talk with them about the intent.

I only knew

what the agreement said. Q Had you instructed either Mr. Stone or anyone else to

go back and speak with the people who had actually negotiated the transaction on behalf of Novell and see what was intended with respect to the transfer of copyrights? A I would assume that they would do that as a normal

course of their work. Q A Q But you never made such an express instruction? I never instructed them to do so. I would like to show you -MR. SINGER: At this point, I would like to move

into evidence SCO Exhibit 525, which is the press release which published the May 28th, 2003 letter. MR. ACKER: THE COURT: No objection, Your Honor. It will be admitted.

(Plaintiff's Exhibit 525 was received into evidence.) MR. SINGER: I would like to publish this in the

same fashion before the jury before the witness proceeds to testify concerning this letter. THE COURT: MR. SINGER: the press release. THE COURT: It may be best if you, again, Go ahead. Could you show the top part first,

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emphasize the date of this press release. MR. SINGER: dated May 28th, 2003. This is the press release from Novell The heading is Novell challenges SCO Provo, Utah. May

position, reiterates support for Linux. 28th, 2003.

Defending its interest in developing services

to operate on the Linux platform, Novell today issued a dual challenge to the SCO Group over its recent statements regarding its UNIX ownership and potential intellectual property right claims over Linux. First, Novell challenged SCO's assertion that it owns the copyrights and patents to UNIX System V, pointing out that the asset purchase agreement entered into between Novell and SCO in 1995 did not transfer these rights to SCO. Second, Novell sought from SCO facts to back up its assertion that certain UNIX System V code has been copied into Linux. Novell communicated these concerns to SCO via a

letter, text below, from Novell chairman and CEO Jack Messman in response to SCO making these claims. Mr. Calvin, could you go down to the last -- what would be the paragraph that appears on the second page of the letter. This is the reproduction of the letter. go down a little bit further? This is the same paragraph that was previously read into the record from the May 28th, 2003 letter Could you

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beginning with the statement, importantly, and contrary to SCO's assertions, SCO is not the owner of the UNIX copyrights. Could you resume the playing of Mr. Messman's deposition. Q -- Exhibit 1013, which is a press release issued by Did you approve the issuance of

Novell on May 28th, 2003.

this press release by Novell? A Q Generally, yeah, I reviewed all press releases. In this case you approved the issuance of the press

release that appears as Exhibit 1013? A Q Yes. Do you recognize that the text of the letter from you

to Mr. McBride, which we've just been looking at, Exhibit 1012, was reproduced in the press release? A Q Yes. Included therefor in the press release is your

statement, which we've seen in the letter and we're now looking at in the press release, where you stated, quote -this appears on the second page of the press release, the third paragraph before the bottom, quote, SCO is not the owner of the UNIX copyrights. A Q Do you see that?

You're on page 2 of this -Page 2. It would be the third paragraph from the

bottom.

Importantly, and contrary to SCO's assertions, SCO

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is not the owner of the UNIX copyrights? A Q I see that. So is it fair to say that Novell, through your action

as CEO, intentionally communicated to the public on May 28th, 2003, that SCO did not own the UNIX copyrights; is that correct? A Q Yes. Is it fair to say that you released the letter to

Mr. McBride, your May 28th letter, in a press release so as many people as possible would read about it? A That was the mechanism by which we could get our side I didn't have a feeling as to who would

of the story out. read it. Q

At the time you wanted to get your position out as

broadly as possible; is that correct? A Q Sure. Were you subsequently aware that SCO's stock price

declined 30 percent in the immediate aftermath of your press release? A SCO's stock price was going up and down during that

period of time based on what was happening and what Darl was saying in the marketplace. I can't recall what it did on

any given day when we were making these -Q Clearly at the time of the press release, because it

was the same day as your May 28th letter, you also had at

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that time no personal knowledge and had not spoken to any of the individuals who negotiated the APA or its amendments with respect to the transfer of the copyrights, correct? A Q That's correct. At the time of the press release on May 28th, just the

same as the time of the letter, you were unaware of the existence of Amendment No. 2; is that correct? A Q That's correct. We haven't marked that yet -MR. SINGER: At this time, I would like to move

the admission of SCO Exhibit 96, which is Mr. LaSala's letter to Mr. McBride of June 6th, 2003, which accompanies the June 6th, 2003 press releases. the witness will testify to. MR. ACKER: THE COURT: No objection, Your Honor. It will be admitted. It's the next document

(Plaintiff's Exhibit 96 was received into evidence.) MR. SINGER: Mr. Calvin, could you put Exhibit 96

on the screen and highlight or enlarge the portion of the text. This is a letter from Joseph A. LaSala, senior vice president, general counsel and secretary of Novell, to Darl McBride, the president and CEO of the SCO Group, dated June 6th, 2003.

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Dear Mr. McBride, I've received your letter to Jack Messman with respect to Novell's May 28th, 2003 press release. For your information, Novell has today issued a press release with respect to Amendment No. 2. attached for your ease of reference. Your letter contains absurd and unfounded accusations against Novell and others, coupled with a veiled threat to publicly state those allegations in a SCO press call to be held today at 11:00 a.m. eastern standard time. Novell continues to demand that SCO cease and desist its practice of making unsubstantiated allegations, including the allegations contained in your letter of June 6, 2003. Sincerely, Joseph A. LaSala. Turn to the press release, please. This is for immediate release June 6th, 2003. THE COURT: MR. SINGER: THE COURT: MR. SINGER: This was part of Exhibit 96? Yes. This is part of Exhibit 96. A copy is

All right. Novell statement on SCO contract June 6, 2003. In a May 28th

Provo, Utah.

letter to SCO, Novell challenged SCO's claims to UNIX patent and copyright ownership and demanded that SCO substantiate its allegations that Linux infringes SCO's intellectual property rights. Amendment No. 2 to the 1995 SCO-Novell

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asset purchase agreement was sent to Novell last night by SCO. To Novell's knowledge, this amendment is not present The amendment appears to support SCO's

in Novell's files.

claim that ownership of certain copyrights for UNIX did transfer to SCO in 1996. The amendment does not address

ownership of patents, however, which clearly remain with Novell. Novell reiterates its request to SCO to address the fundamental issue Novell raised in it May 28 letter: SCO's still unsubstantiated claims against the Linux community. Mr. Calvin, continue with the deposition. Q This has previously been marked as Exhibit 1014. Have you seen this letter before that Mr. LaSala wrote Mr. McBride? A Q A Q Yes. Did you approve Mr. LaSala sending it? Yes. Did you review Mr. LaSala's letter in the press release

that's associated with it prior to it being sent? A Q A Q Yes, I did review it. And approved it being sent? Yes. You agree this letter was written in response to the

letter from Mr. McBride of the same date that we had just

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seen? A This is responding to Novell's May 28th -- I'm sorry.

He's responding on the June 6th to the May 28th, and then we're responding to him. Q This was a response to demands that SCO had made that

Novell clear up the record with respect to ownership of copyrights, correct? A yes. Q And that press release, which was issued on June 6th, That's the demands they were making in their letter,

the response is the one which appears on the second page of this Exhibit 1014, correct? A Q That's it. That press release states that, in a May 28th letter to

SCO, Novell challenged SCO's claims to UNIX patent and copyright ownership and demanded that SCO substantiate its allegations that Linux infringes SCO's intellectual property rights. Amendment No. 2 to the 1995 SCO-Novell asset To

purchase agreement was sent to Novell last night by SCO. Novell's knowledge, this amendment is not present in Novell's files. The amendment appears to support SCO's

claim that ownership of certain copyrights for UNIX did transfer to SCO in 1996. The amendment does not address

ownership of patents, however, that clearly remain with Novell.

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That statement was issued with your approval as an official Novell press release on June 6, 2003, correct? A Q I did approve the release of this. Everything in that statement was true and correct, to

the best of your knowledge? A Q Yes. These statements are all true and correct, to the best

of your knowledge? A Q Yes. Now the statement that to Novell's knowledge Amendment

No. 2 is not present in Novell's files, it turns out that statement was false, correct? A Q No. There was no signed amendment in our files.

You had determined at a later time that there was a

signed copy in the CFO's files? A Q Yes. Don't you consider the CFO's files to be Novell's

files? A Q Sure. At the time Novell said this, it was not aware that It later turned out

that signed copy was in Novell's files. to be in Novell's files; is that correct? A Yes. MR. SINGER:

I would now like to move into

evidence SCO Exhibit 105, which is correspondence between

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Mr. LaSala and Mr. McBride dated August 4, 2003. MR. ACKER: THE COURT: No objection, Your Honor. It will be admitted.

(Plaintiff's Exhibit 105 was received into evidence.) MR. SINGER: This is a letter, again, from Joseph

A. LaSala, senior vice president, general counsel and secretary, to Darl McBride, president and chief executive officer of the SCO Group, dated August 4, 2003. Can you blow up the text of the letter so the jury can read this? Dear Mr. McBride. This is further to my letter of

June 6th, 2003 concerning ownership of the copyrights in UNIX and follows your announcement that SCO has registered its claim to copyrights in UNIX System V with the U.S. Copyright Office. copyrights. MR. ACKER: Your Honor, if we're going to read the We dispute SCO's claim ownership to these

exhibit, we should read the whole exhibit as opposed to just portions. THE COURT: thing, then. MR. SINGER: The asset purchase agreement, in Let's go ahead and read the whole

schedule 1.1(b), contains a general exclusion of copyrights from the assets transferred to Santa Cruz Operation.

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Amendment No. 2 provides an exception to the exclusion, but only for, quote, copyrights required for Santa Cruz Operation to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies, close quote. In other words, under the asset purchase agreement and Amendment No. 2, copyrights were not transferred to Santa Cruz Operation unless SCO could demonstrate that such a right was, quote, required for Santa Cruz Operation, close quote, to exercise the rights granted to it in the APA. Santa Cruz Operation has never made such a demonstration, and we certainly see no reason why Santa Cruz Operation would have needed ownership of copyrights in UNIX System V in order to exercise the limited rights granted SCO under the APA. Nor is there any reason to think that a transfer

of the copyrights required for SCO to exercise its APA rights necessarily entails transfer of the entire set of exclusive rights associated with a particular copyrighted computer program. Unless and until SCO is able to establish that some particular copyright right is, quote, required for SCO to exercise its rights under the APA, SCO's claim to ownership of any copyrights in UNIX technologies must be rejected, and ownership of such rights instead remains with Novell. Sincerely, Joseph LaSala. Would you please continue the deposition.

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Q

I would like to now show you Exhibit 1023, which is

another piece of correspondence between Mr. LaSala and Mr. McBride that's been dated August 4th, 2003. Did you review this letter and approve it before it was sent? A Q Yes. In this letter, is it fair to say Novell rejects SCO's

claim to ownership of any copyrights in UNIX technologies? A Q Yes. What background materials or other information not

available to Novell in June of 2003 have resulted now in August of 2003 Novell taking this position? A I don't think there were any new materials. There was

a lot more attention devoted to the agreement and understanding the agreement. Q So there was no new information that came to light,

that you're aware of, between June 6th, 2003 and August 4th, 2003? A Q Not that I'm aware of. The position that Novell took in this letter was,

quote, and I'm quoting from the third paragraph, we certainly see no reason why Santa Cruz Operation would have needed ownership of copyrights in UNIX System V in order to exercise the limited rights granted SCO under the APA. is there any reason to think that a transfer of the Nor

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copyrights required for SCO to exercise its APA rights necessarily entails transfer of the entire set of exclusive rights associated with a particular copyrighted computer program. That was Novell's position; is that correct? A Q Yes. Which of those two things is Novell's position, as you

understand it, that no copyrights at all transferred or that only partially a copyright transferred, as suggested by the last sentence I read? A My view is that we sold SCO the right to develop the

code further than what it was at the time we sold it, we transferred the business to them, and they were going to evolve the code, particularly to try to unify UNIX, the various flavors UNIX and sell UnixWare. Q A So it's your view -And they didn't need the copyrights to do that. MR. SINGER: At this point we have the Wall Street

Journal article dated September 20, 1995 that is already in evidence. This is SCO Exhibit 133. With the Court's

permission, we would publish it at this time. THE COURT: MR. SINGER: Go ahead. This is the Wall Street Journal I would like to publish

article dated September 20, 1995. the first two paragraphs.

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Novell Inc. today is expected to announce plans to relinquish control of the widely used UNIX operating system to Santa Cruz Operation Inc. and Hewlett-Packard Company. The deal includes the purchase by Santa Cruz Operation of most trademarks and intellectual property associated with UNIX software, one person familiar with the situation said. He said he expects SCO to pay about $140 million, some of which will be shares of SCO, a Santa Cruz, California company, that sells its own version of UNIX. Mr. Calvin, can you continue with the deposition,

I'd like to show you a Wall Street Journal article as This is Exhibit 1030, Wall Street Journal Do you recall whether

the next exhibit.

article back on September 20, 1995. you've ever seen this before? A Q I don't recall it.

You were on the board of Novell and may have read it in

The Wall Street Journal back then? A Q I may have read it, yes. Do you see where in this Wall Street Journal article it

states in the second paragraph, the deal includes the purchase by Santa Cruz Operation of most trademarks and intellectual property associated with UNIX software, one person familiar with the situation said? A I see it. Do you see that?

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Q

Now if your position is correct, no intellectual

property transferred to SCO, right? A Q That's correct. Do you know if Novell ever took any steps to correct

The Wall Street Journal's characterization to the public of what had been sold? A Q I don't know of any steps they took. Are you aware of any public statement made by Novell

after 1995, after the APA was signed, where Novell publicly stated it owned the copyrights up until the time, of course, of your press release of March of 2003 -- May of 2003? A I don't know of any such thing, but they did do another

transaction similar to this with BEA, and I know they may have made some comments then, but I don't know for sure. Q Certainly as you sit here today, you are not aware of

any public statement made during that eight-year period between the closing of the asset purchase agreement in 1995 and the press release which we've been looking at on May 28th, 2003 where Novell ever asserted ownership of UNIX copyrights? A Q I'm not aware of any of that. Look at Exhibit 1, and e-mail from Chris Sontag at SCO It says, attached is a first cut

to Greg Jones at Novell.

at a side letter to clarify the issues we discussed yesterday. I'll give you a call later, and so forth.

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Turning to Exhibit 2, you see a proposed letter. ever seen this before? A Q No.

Have you

Do you see that the proposed letter that SCO asked

Novell to sign in February 2003 would, quote -- would clarify that, quote, all right, title and interest in and to the copyrights associated with SVRX agreements held by Novell at the time of the asset purchase agreements were intended to be included in the included assets identified on schedule 1.1(a). A Q I see that, yes. When you've earlier testified that it was your

understanding that what SCO was asking for was a transfer of the copyrights rather than a clarification that those had transferred, were you aware of this correspondence between Mr. Sontag and Mr. Jones? A Q No. I just became aware of it right now.

I take it, then, in the May 28th, 2003 press release,

which told the public that SCO had asked for a transfer of the copyrights, you were not aware of the February 2003 correspondence that we're looking at which asked for clarification that those had been transferred; is that correct? A Q That's correct. I've never seen this before.

When did you retire as the chief executive officer of

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Novell? A Q A Q June 21st, 2006. Are you a stockholder in Novell at present? Yes. Without wanting to pry into your financial affairs,

would you say that your share ownership of Novell is material to yourself? A Q Yes. When did Novell begin considering a Linux strategy as

part of its business? A Q It was late 2002. At the time when it first considered Linux as part of

its strategy, what role did you envision Linux would play in Novell's overall business strategy? A At the time we were going to take the services that

were in NetWare and make them work on top of the Linux operating system. Q At that time Novell didn't contemplate, either directly

or through a subsidiary, being engaged in the business of distributing Linux itself? A I think that -- our approach was to put the NetWare

services on top of SuSE Linux, Readhat, even United Linux. We didn't care what Linux was underneath. to put our services on top of Linux. Q But in late 2002 is when you decided that Novell should Our strategy was

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make the Linux strategy a significant part of Novell's business strategy moving forward? A Q Yes. When Novell decided it was going to pursue a Linux

strategy in late 2002, did that lead you to believe it was important to have a relationship involving Linux with IBM? A Well, we wanted to put NetWare on Linux and have IBM, All three of those companies had been

Dell and HP sell it.

involved with selling NetWare and had NetWare customers, and we felt that was a good transition to put NetWare on top -the NetWare services on top of Linux so they could transition their customers to NetWare on Linux. Q So one aspect of the Linux strategy, which would

involve IBM, would be IBM selling a product of NetWare on top of Linux, correct? A Q Yes. Did there come a time when IBM paid Novell $50 million

to assist in its Linux strategy? A They paid us -- they bought $50 million worth of our

stock, at my request, to give me comfort that they were going to support the Linux strategy. Q A When did that occur? We bought -- I think I said we bought SuSE Linux either

in November or December -- I think it was November, and then the investment occurred like February or March of the

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following year. Q When did you first discuss with IBM them making a $50

million investment in the stock of Novell? A We had pretty much finished the negotiations with the

sellers of SuSE Linux and the bidding got up to $210 million. We had $750 million worth of cash on our

balance sheet, we didn't need the cash, but I wanted to make sure that if we bought this company, we would have support in the marketplace. So I called IBM to ask them what

comfort they could give me that they were going to be there if we bought this company, bought SuSE Linux, and they asked -Q A Please continue. They asked me what were my thoughts as to what they

could do. And we had talked about this back at Novell, and we were of the opinion that the best way that they could do that would be to sell our products and make an investment in the company, that would give a signal to the marketplace that they supported our acquisition of SuSE Linux. Q My initial question was, when did you first discuss I think you discussed how the conversation

this with IBM.

came about, but you didn't put a date on that? A I was saying we made the acquisition in November, and I

think it was in -- it was just before we closed that I

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called them. Q A Of 2003? 2003.

I would say it was November.

MR. SINGER:

Your Honor, this completes the

plaintiff's designations from Mr. Messman's deposition. There are a series of designated testimony that Novell wishes to present. THE COURT: Q All right.

Now was it your understanding in 2003 that any

copyrights were being transferred under this agreement by Novell to Santa Cruz? A It was my understanding that they were not being --

they were not part of the assets being sold. Q A Q When did you first come to that understanding? Upon reading the asset purchase agreement. Did you have any understanding one way or the other

before reading the asset purchase agreement? A I think in the board presentation they made to us in -'83? No. Whatever that board

whenever it was, '81 or so.

presentation was, they basically said to us that the copyrights and the patents were not being sold. Q A Who said that? Well, I think David Bradford, who was the general

counsel, was making the presentation. Q He was the general counsel at the time of Novell?

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A Q

Yes. You have a distinct recollection of this board meeting,

which would have been 1995, not 1981 or 1983? A Q '95, right. Okay.

You have a distinct recollection now in 2006 that at

this board meeting in 1995 the board was told that the copyrights and patents were not being sold? A Q Yes. Do you recall anything else that Mr. Bradford said with

respect to assets being sold and not sold? A Q A No. Just the issue about the copyrights? He explained the entire transaction, and it was a

structured transaction, not a straightforward buy and sell. And it was complicated, and therefore we took time to understand what was being sold and what wasn't being sold. We were concerned about SCO and its viability, and we wanted to protect ourselves, because we had these royalty agreements out there, and therefore that was an issue that we were concerned about. Q Did have you an understanding, based on what

Mr. Bradford had said, that Novell was going to retain certain rights to receive royalties on existing licenses in order to -- to actually be part of the payment for the company?

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MR. BRAKEBILL:

Foundation.

We were selling certain of the assets that we had

brought from AT&T, but not all of them, and we were not selling the existing royalty agreements, and we were not selling the copyrights and the patents. Q you. A Q Yes. If you would look at section A. Do you see it refers If we turn to Amendment 2, which is also in front of

back to a schedule of excluded assets, and it states that all copyrights and trademarks, except -- and this would be an item of the excluded assets, you understand that, correct? A Q Yes. You understood that when you read this in 2003 for the

first time? A Q Um-hum. This was modifying the assets that Novell got to keep

under the agreement? A Q Yes. It would be all copyrights and trademarks, except for

the copyrights and trademarks owned by Novell as of the date of the agreement required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies. Do you see that?

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A Q

Yes. What was your view in 2003 as to which copyrights were

necessary for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies? MR. BRAKEBILL: Q A Foundation.

Did you have any understanding? My understanding was that they didn't need any

copyrights and patents to do what they were planning to do, which was to evolve the code that sat on top of the SVRX licenses. Q This letter was sent to you May 12, 2003 by Mr. McBride It's been previously marked as Exhibit 1021, dated Is this a letter which you received by fax on

of SCO.

May 12, 2003. that date? A Q date? A

I don't know how I received it. Is this a letter that you received on or about that

I recall getting this letter.

Whether this is the

one -- I mean, I received this letter. Q Did you understand from this letter that SCO was

asserting claims that Linux infringed on its UNIX rights? A Let me read it. Yeah, I mean, that's what the assertion is, that UNIX is -- I mean, that Linux is violating the UNIX copyrights. Q What did you do in response to this letter?

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A

I think this is the initiation of my getting involved

with these contracts and reviewing them and getting the officers who reported to me to start to address the issue and what we should do about it. Q Why did Novell publish as a press release your letter

to Mr. McBride of May 28, 2003? A Well, there was a feeding frenzy in the stock market

with regard to this issue that SCO continued to feed, and many of the statements that SCO was making were, in our opinion, misleading. And the press and the market weren't

hearing our responses or our actions, so we decided that we had to be the ones who told them the other side of the story. Q Did you have an understanding when you issued the press

release that it was likely to adversely affect SCO's stock price? A Q No. You didn't think it would affect SCO's stock price to

publicly state that SCO did not own the UNIX copyrights? A I didn't have an opinion as to what it would do to

SCO's stock price. Q When you're saying there is a feeding frenzy in the

market, did you believe that SCO's stock was trading upwards because of a misunderstanding with respect to what rights it in fact enjoyed?

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A

I don't think it was a misunderstanding with what The

rights they enjoyed because the market didn't know. market was trying to find out. Q

You were trying to correct or inform that market by

making the statement that SCO did not in fact own the copyrights; is that correct? MR. BRAKEBILL: A Objection.

We were trying to make the market aware of our side of

the story, because the market was not being told the full story, in our opinion. Q Well, you were doing more, weren't you, Mr. Messman,

than saying, it's our position that SCO didn't own the copyrights, you were saying definitively that SCO is not the owner of the UNIX copyrights? A Q A Q Yes. Correct? Yes. Now you were also questioning in this letter the

assertions by SCO with respect to the infringement of its UNIX rights by Linux; is that correct? A Q Yes. At this time, as of May 28th, 2003, what says

investigation had you personally done as to whether or not any of the technology in Linux violated any of the intellectual property rights in UNIX?

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A Q

Personally I had done none of that. Did you ask Mr. Stone or anyone else at Novell to

investigate whether or not Linux had within it any technology that would be protected by any of the intellectual property rights associated with UNIX? A Well, we didn't think that there was any UNIX in Linux,

and we were asking -- as I recall the sequence of events, we were asking SCO to tell us where the offending code was and if there was. Q My question is a little bit different, Mr. Messman. My question was whether or

Maybe I didn't make it clear.

not you had asked anyone at Novell to investigate the issue of whether any of Linux violated any of the intellectual property protection in UNIX? MR. BRAKEBILL: MR. SINGER: A No. Apart from counsel?

Yes.

I don't know how we would have done that, but I It would be a tremendous

didn't ask anybody to do that. effort. Q

Following Mr. McBride's faxing that to you, did you

call Mr. McBride back shortly after that? A He called me back. MR. BRAKEBILL: THE WITNESS: Q Foundation. I'm sorry.

He called you back, is your recollection, a second

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time? A Q A Q Yes. You're sure about that -No. -- that you never placed a call to him? No. But

that's just your best recollection? A Q My best recollection, Darl was calling me. Did you agree with Mr. McBride on that phone call that

Amendment No. 2 confirmed that Novell had transferred the UNIX and UnixWare copyrights to SCO? A Q A No. You're certain about that? I'm sure we didn't transfer the copyrights for that

amendment. Q My question is, are you sure you didn't agree with

Mr. McBride on the phone back on or about June 3, 2003, that Amendment 2 had confirmed the transfer of copyrights? MR. BRAKEBILL: A Objection to form.

My conversation with him only confirmed that we now had That's all we talked about.

a signed of copy Amendment 2. Q

Do you recall asking Mr. McBride what SCO wanted Novell

to do in consequence of Amendment No. 2? A Q No. You're not saying that didn't occur, you just don't

recall it?

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A

I don't think I would have asked that question, because

I hadn't focused on Amendment 2 yet. Q Do you recall Mr. McBride saying that SCO wanted a

public statement by Novell that SCO is the copyright holder? A Q No, I don't recall that. Did Mr. McBride ask you about what involvement IBM had

had in your actions of May 28th? A Q A I do recall him asking that question. What did you say? I think I said something to the effect that I talk with

IBM about a lot of things, and that's the way I left it. Q In fact, had you talked to IBM specifically about the

issue of copyrights? A Q No. Had you talked about SCO's claims with respect to Linux

with IBM? A Q No. Why didn't you just deny to Mr. McBride that there had

been any communications with IBM on those subjects? MR. BRAKEBILL: A Form. It was

I didn't know what specifically his intent was. I talk to IBM about a lot of things.

a nonanswer. Q

Are you aware of whether anyone at Novell, prior to May

28, 2003, had talked with anyone at IBM regarding what position Novell should take regarding SCO's ownership of

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copyright? A them. Q You were aware, even at the time of this press I think I'm aware that at least Mr. LaSala talked to

statement, that there was an unsigned copy that had been in Novell's files, correct? MR. BRAKEBILL: testimony. A I was aware that there was an unsigned copy of Form, mischaracterizes earlier

Amendment 2, but there could have been unsigned copies of other things too. signed. Q As of the date of this press release, you had become They don't become binding until they are

aware of the fact Amendment No. 2 had been signed, right? A Q That's the purpose of that first statement. Right. And that is the reason why you're informing the

public on June 6, 2003 that Amendment No. 2 appears to support SCO's claim that ownership of certain copyrights for UNIX did transfer to SCO in 1996; is that correct? MR. BRAKEBILL: A Form.

We're saying that this amendment appears to support We're not saying that Amendment 2 transferred

SCO's claim.

the copyrights. Q As you sit here today, who do you identify in your

mind, if you know, were the individuals who were in fact

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involved at Novell in the asset purchase agreement transaction? MR. BRAKEBILL: A work. Q A Which law firm was that? Wilson Sonsini. And I can't remember the guys in There were Foundation.

Well, we had a law firm that was doing most of the

corporate development that were working on this. several of them.

As a board member I'm talking, not as the

CEO of the company. Q A Q Right. Yeah. The position that Novell took in this letter was, You were a board member then?

quote, and I'm quoting from the third paragraph, we certainly see no reason why Santa Cruz Operation would have needed ownership of copyrights in UNIX System V in order to exercise the limited rights granted SCO under the APA. is there any reason to think that a transfer of the copyrights required for SCO to exercise its APA rights necessarily entails transfer of the entire set of exclusive rights associated with a particular copyrighted computer program. That was Novell's position; is that correct? A Q Yes. I mean which of those two things is Novell's position, Nor

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as you understood it, that no copyrights at all transferred or that only partially a copyright transferred, as suggested by the last sentence I read? MR. BRAKEBILL: A Form, compound, argumentative.

My view is that we sold SCO the right to develop the

code further than what it was at the time we sold it, we transferred the business to them, and they were going to evolve the code, particularly to try to unify UNIX, the various flavors of UNIX, and sell UnixWare. Q A Q So it's your view -And they didn't need the copyrights to do that. So it's your view that the transaction did not transfer

the intellectual property rights in UNIX to Santa Cruz? A Q Yes. Are you under any type of agreement with Novell that

requires you to continue to cooperate with them in connection with litigation matters? A Q No. Do you have any type of nondisparagement agreement with

Novell? A Q No. Do you have any consulting agreement or other agreement

with Novell? A Q No. Would you agree they would either need to get the

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copyright or they would need to get a license or sublicense in order to be able to conduct a business of selling end-user licenses to UnixWare? MR. BRAKEBILL: A It calls for a legal conclusion.

My view is they would be selling the stuff that they

developed on top of UnixWare or SVRX, which they had develop. Remember, my view is, they had to evolve the code, They had to

they couldn't just take SVRX and sell it.

evolve the code to something more that they then had the intellectual property rights to. Q I'm not talking about the legacy of SVRX products. I'm

talking about UnixWare now.

Do you deny SCO had the right

after the closing to sell UnixWare -A Q No. -- in the form that 2.0 existed at the time of the

closing -- to sell UnixWare in the form that it existed at the time of the closing? MR. BRAKEBILL: A It calls for a legal conclusion.

Quite frankly, I haven't studied the UnixWare side of

all this, so I can't come to a conclusion on that without further study. Q Why didn't you enter into an agreement with them that

would obligate them to sell and promote SuSE Linux as opposed to a $50 million cash investment in their stock? MR. BRAKEBILL: Form.

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A

They wanted to make sure they treated all participants

in the Linux business equally, they had a relationship with Readhat, and they didn't want to exclusively sell our products, they wanted to get more than one into their customer base. Q My initial question was, when did you first discuss I think you discussed how the conversation

this with IBM.

came about, but you didn't put a date on that? A I was saying we made the acquisition in November, and I

think it was in -- it was just before we closed that I called them. Q A Q Of 2003? 2003. Now what was -- if any action that SCO took was subject I would say it was November.

to being overruled by Novell, and Novell could force SCO to take any action which it wanted, then what, in essence, was SCO buying under the agreement? MR. BRAKEBILL: answered. A SCO was buying the rights to develop -- further develop Form, argumentative, asked and

the SVRX code to create a merged product, to create a product that would bring the UNIX industry together hopefully to better compete with NT. that they were buying into. MR. SINGER: Your Honor, that completes the That was the business

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designations and cross designations from the deposition of Jack Messman. Do you want us at this time to proceed with

the next deposition? THE COURT: I think we probably ought to get

started into it, if you would, please. MR. NORMAND: Your Honor, the next witness whose

designations we'll play is Jim Wilt, who is in Santa Cruz. THE COURT: Mr. Normand, will the deposition be If not, would you please do

identified when this was taken? so. MR. NORMAND: January 26th, 2007. THE COURT: Thank you.

Yes, Your Honor.

It was taken on

(James Wilt Deposition) Q Do you recall the title you had at the time of the

asset purchase agreement? A I believe my title was vice president of business I had taken a very generic title.

development. Q

And how about after that, did your title change when

you went into product engineering? A Q Yes. I was senior vice president of products.

And did you have another position after senior vice

president of products? A Q Yes. What was that?

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A

I ran the consulting services business unit.

I was

president of -- I think it was president of consulting services. Q I'm not sure of the exact title.

What were your responsibilities as president of

consulting services? A The consulting services was a business unit that

bespoke programming or services to help install or to create programs that went along with the software. Q Have we gotten up to the point of the SCO-Caldera

transaction yet or are we still in the period between the asset purchase agreement and that transaction? A It was while I was the -- ran the consulting services

that the Caldera transaction happened. Q You said you were involved in some of the initial At what point in

discussions concerning that transaction.

the transaction did you stop your involvement? A Q Relative to Caldera? Relative to the Caldera. This is the SCO-Caldera

transaction I'm talking about. A As we got into more details, we discussed it as a

management group. Q Are you familiar with which assets were transferred as

part of that transaction to Caldera and which assets were not? A Of a general nature.

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Q

I take it then that the UNIX business of SCO

transferred to Caldera as part of the SCO-Caldera transaction? A Q That's correct. Do you know -- as a preliminary matter, do you know who

Edward Chatlos is? A Q A Yes. Who is he? He was the individual that we negotiated the agreement

with from Novell. Q Would it be fair to say, though, that you were more

active in the negotiations at the beginning and less active at the end of the negotiations? A Q Less active -- probably less active. Certainly. With this text in mind and recalling your

meetings with Novell leading up to the asset purchase agreement, do you recall anyone from Novell ever communicating to you affirmatively, specifically, that Novell was selling SCO the UNIX or UnixWare copyrights? A I do not have specific recollection of somebody

communicating they were transferring that explicitly in terms of saying copyrights because it was such a fundamental part of an asset purchase that if you didn't have copyrights and such go along with it, there was no asset purchase. It's called a license. We did not discuss a license. We

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discussed a purchase.

So there are a lot of things that we

didn't explicitly cull out as part of the purchase because they were just assumed. I mean, when you walk out the door,

I assume your head goes with you, and the same thing is true when you buy the assets. have got to go with it. Q So to be clear, no one from Novell ever said to you Copyrights and things like that

copyrights are part of this deal, we're selling you the copyrights? A That's not what I said. I said I could not recall If they did, it's not

anyone explicitly saying it.

something that would have been so out of the ordinary for me to remember because, as I said, it was just a natural part of what you expected to have transferred. So if somebody

made such a statement, it would not be remarkable and not be something that one would remember. On the other hand, if somebody would have said we're not selling them to you, it would have been extremely remarkable and probably would have ended the negotiations. Q Just so I understand, though, you do not recall anyone

saying that copyrights were part of the assets transferred as part of the APA? A Q A Is that the same question you asked before? I'm asking that question now. I'm asking is that the same question you asked before?

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It sounds like it. gave before.

If it is, it's the same answer that I

It's not a remarkable statement that I would

have remembered. Q I'm not asking whether it's remarkable or not. I'm

just asking if you recall anyone saying, from Novell, copyrights were part of the assets transferred? A And my answer is I have no recollection because it is

not something that would have been remarkable to remember. Q Do you have any stock options in the entity that's the

plaintiff in this action, The SCO Group, Inc.? A Q No. Do you know whether any members of your immediate

family own any stock or stock options in The SCO Group, the entity that is the plaintiff in this action? A Q Not that I know of. Mr. Wilt, you were handed an Exhibit 25 -MR. NORMAND: declaration. Your Honor, there is reference to a

Obviously we're not undertaking to admit the That's what is being referred

declaration into evidence. to. THE COURT: Q

All right.

-- earlier in the day, which is described as your first Have you had occasion recently to review that

declaration. declaration? A Yes.

I did read through it last night.

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Q

Is there any part of the declaration that you feel is

inaccurate or that you would like to correct? A Q No. If I could direct your attention to some language in I'm looking at paragraph 7 at the end

that declaration.

where you say, in referring to the negotiations from August to September 1995 between Santa Cruz and Novell, that you, quote, understood Mr. Chatlos to be Novell's chief negotiator during those negotiations. statement? A Q This is a correct statement. You say in paragraph 8, quote, it was my understanding Is that a correct

and intent during those negotiations that SCO would acquire Novell's entire UNIX and UnixWare business, including the copyrights. I do not recall and do not believe that there

ever was any instance in which anyone at SCO or Novell ever stated or exhibited any contrary intent or understanding to me or anyone else. Is that an accurate statement? A Q That's an accurate statement. You say in the back half of paragraph 9, quote, it was

my intent on behalf of SCO to acquire, through the APA, Novell's entire UNIX and UnixWare business, including the UNIX and UnixWare source code and all associated copyrights, and I believed then, open parens, as now, close parens, that

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Novell's intent was to tell sell all of those assets and rights. Is that an accurate statement? A Yes, that's an accurate statement. You wouldn't have

had a business without having the copyrights and trademarks. Q You say in paragraph 12, quote, I do not recall anyone

on either side of the negotiations or transaction ever suggesting that Novell would retain a copyright relating to UNIX or UnixWare. I am not aware of any discussions,

whether general or specific, during the negotiations that contradict my understanding of the transaction as set forth in this declaration. Is that an accurate statement? A Q That is an accurate statement. You say in paragraph 16, quote, pursuant to the APA,

the parties also signed a technology licensing agreement in early December 1995 in which Novell licensed source code rights from SCO. In my view, this licensing agreement was

consistent with SCO's ownership of the UNIX and UnixWare copyrights following the closing of the APA, end quote. Is that an accurate statement? A That's an accurate statement because if you look at the

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