SCO Grp v. Novell Inc

Filing 861

NOTICE OF FILING OF OFFICIAL TRANSCRIPT for dates of March 16, 2010-Jury Trial-Volume VII before Judge Ted Stewart, re 567 Notice of Appeal. Court Reporter/Transcriber Ed Young, Becky Janke, Patti Walker, 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. 861 Att. 2

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THE COURT: MR. ACKER: MR. SINGER: THE COURT: MR. SINGER:

Are we ready, counsel? Yes, Your Honor. Yes. Well --

Does that mean no? I was thinking whether it made sense

to raise one evidentiary issue that's going to come up in redirect, in light of the cross, now before the jury is here -THE COURT: MR. SINGER: Go ahead. -- so we can openly discuss that.

I had moved Exhibit 748, which was the July presentation, into evidence and the Court at that time had not accepted it. Now we have had all these other articles

which were presented as statements to Mr. McBride, were you aware of this, were you aware of that. And I would like to

put in, through Exhibit 748, the response which they provided, which Mr. McBride was aware of, as well as what they used to respond to those criticisms by the Linux community. redirect. So I intend to try to get back into this on And I think now I certainly have a basis to do so

given the issues that have been raised in cross-examination. MR. ACKER: I wouldn't object as to that one page.

It's just the whole PowerPoint, Your Honor. THE COURT: I would tell you that I will not

permit the whole Power Point to come in, Mr. Singer, because

Dockets.Justia.com

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there is no foundation. MR. SINGER: There are two pages that I would like

to have come in that relate to -THE COURT: agree. MR. SINGER: One is this page from articles, and Show Mr. Acker, and if he's willing to

the other is this page which talks about the Linux development. MR. ACKER: articles. I wouldn't have a problem with the

The other is their theory on infringement, and I

would object to that. MR. SINGER: then. THE COURT: Your 748 will consist of one page, I will just go with the articles,

which is the articles, all right? MR. SINGER: THE COURT: That's correct, Your Honor. All right. Good.

Ms. Malley, would you please bring the jury in. If, in fact, we have another hour on cross, I am presuming that we probably will only finish with this witness today. Is that likely? If we have an hour and only an hour,

MR. SINGER:

I think my redirect might be completed within the half hour that we would have, roughly speaking. THE COURT: So the answer to my question is this

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is probably the only witness we'll finish today? MR. SINGER: Honor. THE COURT: schedule? MR. SINGER: I think we're looking at putting Mr. What does that, then, do to our I think that's quite certain, Your

Pisano on now instead of Ms. Botosan because Mr. Pisano, he is the professor from the Harvard business school, he has to leave at the end of the day tomorrow. completing his testimony. (Jury present) THE COURT: MR. ACKER: BY MR. ACKER: Q Mr. McBride, I've handed you what have been marked and Go ahead, Mr. Acker. Thank you, Your Honor. So we can't risk not

So instead of going --

admitted I believe as N-13 and T-13, the Microsoft and Sun agreements. A Q Do see those, sir?

Yes, I do. You are familiar with these license agreements,

correct? A Yes, I am. MR. ACKER: Your Honor, I would move for admission

of N-13 and T-13, if they have not already been admitted. MR. SINGER: have no objection. I don't think they have been, but I

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THE COURT:

N-13 and T-13 will be admitted.

(Defendant's Exhibit N-13 and T-13 were received into evidence.) BY MR. ACKER: Q In talking to the jury this morning about license

agreements that SCO was able to obtain in the first part of 2003, these are the two agreements you are talking about, this Sun agreement and the Microsoft agreement? A Q That's right, Mr. Acker. And those are the only agreements under the SCOsource

division that were obtained between the announcement of the SCOsource program in January of 2003 and May 28th of 2003, right? A Q Yes, that's correct. And those two licenses, the Sun license and the

Microsoft licenses, those are UnixWare licenses, correct? A Those are UnixWare IP licenses in the SCOsource

division. Q A Q But you agree with me they are UnixWare licenses? They are based on UnixWare. Now let me turn to this conversation that you testified You said that at some

you had with Mr. Messman on June 5th.

point, either on the 4th or the 5th, your assistant found Amendment No. 2, correct? A Yes.

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Q

And she let you know that, and you were in New York,

right? A Q Yes. And did you come back to Utah to call Mr. Messman or

did you stay in New York? A No, I was actually flying home from New York. I

believe when I landed there was a voice mail from my assistant -- I had just landed in New York. And then I went

down to the office in Lindon after receiving -- well, I called her, but I received her voice mail. then I went to Lindon. Q A Then you called Mr. Messman; is that right? Not initially. When I found out about it, it was in From three o'clock until around I called her and

the afternoon time frame.

four or five o'clock, I don't remember exactly, we spent a couple of hours going through and figuring out what we wanted to do. One of the first things, once we found it, So, yes, I placed a call in to him, I

was to call him.

recall, in the late afternoon on June 5th of 2003. Q Then after the first call, you faxed him a copy of

Amendment No. 2, correct? A Q That's correct. It was during the second call that you claim -- and I

wrote it down yesterday, you claim he said, okay, Darl, you got the copyrights. Do I have that right?

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A Q A Q

Yes. That was a big deal, wasn't it? Yeah. I mean, that was a huge admission, the CEO of Novell,

according to you, told you on the phone, okay, Darl, you have the copyrights, right? A Q A Q A Q call? A No -- well, I had somebody there in the room with me Yes. So you've won this dispute, right? I felt like we had. Did you take any notes of that call? No. Did you send an e-mail to anybody to document that

that overheard the call, so I didn't feel like I needed to. Q A Q A Q Did Mr. Sontag take any notes? I don't know. Did Mr. Sontag send any e-mails? I don't know. So this happens in the evening -- late afternoon,

evening on June 5th, right? A Q Yes. And then the very next morning you send a letter to

Mr. Messman, right? A Yes.

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MR. ACKER: BY MR. ACKER: Q

Can we bring up SCO 95, please.

This is your letter to Mr. Messman on June 6th, 2003,

maybe within 12 hours of this phone call in which you claimed that Mr. Messman essentially confessed to you, right? A Q Yes, that's right. And in this letter that you wrote within 12 hours of

this conversation, you referenced the conversation, correct? A Q Yes, that's correct. Why don't we take a look at that portion of the letter.

In the second sentence of this paragraph, you wrote, I am also concerned that IBM may have possibly been involved in your decision to issue this groundless press release based upon statements you made in our telephone conversation on June 5th, right? A Q Yes. And what you said yesterday about what Mr. Messman said

about IBM is he wouldn't answer your questions, right? A Q He was evasive, that's what I said. So within 12 hours of the CEO of Novell confessing to

you that you own the copyrights, you write him a letter, you reference the phone call, you don't say anything about that alleged statement. A Do I have that right?

About which alleged statement?

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Q

Do I have it right that within 12 hours you wrote a

letter to Mr. Messman that you referenced a telephone conversation and said nothing about this alleged confession? Do I have that correct? A Well, I think we've got to read the rest of this

letter. Q A Q A Take your time. How do I pull it up? I'll give you a hard copy. Great. Right. So if you go to the latter part of the letter,

there's a good three points in there that talk about the concerns that I have about the intercommunications between IBM and Novell. Q Nowhere in that letter do you say, Mr. Messman, you

confessed to me last night on the phone, or words to that effect? A Well I said, regarding our call last night, based on I didn't say a lot of other

the conversations we had. things that he said either. Q

But wasn't the most important part of that call that

Mr. Messman allegedly told you you owned the copyrights? Wasn't that the real essence of it? A There were a lot of things that were important. The

fact that he had admitted, okay, you've got the copyrights,

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that was very important.

His hesitance and unwillingness

and evasiveness around whether they were, in fact, coordinating with IBM was an important part. And then the

fact that, you know, he didn't want to talk about damages either. There were a lot of things that were important

about the call. Q But nowhere in the letter that you wrote to him within

12 hours did you say, by the way, you admitted last night that we own the copyrights, right? A Q A Q The letter is what it is. So the answer to my question is yes, correct? What was the question again? You never said in the letter that you confessed to me

last night -A I didn't say confessed because he knew -- he He confessed --

confessed -- here's the issue, Mr. Acker. THE WITNESS: too far?

Can I talk about this or am I going

I don't want to get in trouble with. THE COURT: He's your witness. What do you want

to do? MR. ACKER: question. THE WITNESS: Singer. // Try again. Try again. I can talk to Mr. I would like an answer to the

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BY MR. ACKER: Q Within 12 hours of having this conversation with

Mr. Messman where he allegedly told you you own the copyrights, you wrote him a letter, you referenced the phone call, you didn't say anything about this statement, right? A Q About which statement? To him saying, allegedly, to you that you, SCO, owns

the copyrights? A Right, because he had already made that statement. He

hadn't admitted to the IBM statements. Q You wrote another letter to him five days later on Let me show J-16.

June 16th, correct?

I'm sorry, June 11th. A Q Okay. J-16 is a letter that you wrote to Mr. Messman on

June 11th, 2005, correct? A Yes, that's right. MR. ACKER: Honor. MR. SINGER: THE COURT: No objection. It will be admitted. I move for admission of J-16, Your

(Defendant's Exhibit J-16 was received into evidence.) BY MR. ACKER: Q If you would take a look at the fourth page, 4 of 5 of

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the letter, paragraph 4, you again wrote to Mr. Messman and you again referenced your June 5th call with him, right? A Q Yes. You wrote, the fact that Mr. Lauderdale was directly

involved in your decision to issue the June 9, 2003 letter further confirms your reluctant admission to me on June 5th, 2003 that IBM may have been involved in your press release of May 28th, 2003, with the resulting adverse impact on SCO and its shareholders, correct? A Q Yes, that's right. So six days -- in your second letter to him six days

later about the same telephone conversation, you characterized his statements about IBM as being a reluctant admission, right? A Q Yes. Nowhere in this letter do you say anything about

Mr. Messman allegedly saying to you, Darl, you own the copyrights, correct? A Q A Q A Q He had already admitted that. Nowhere in this letter do you say that, correct? No, I haven't. Nowhere do you reference this, correct? No, he'd already given us -You have no notes -THE COURT: Just a second. Let the witness finish

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the answer before you ask the next question. THE WITNESS: No. He had already given us a

retraction letter stating that the copyrights were with SCO. There was no reason to pursue it. BY MR. ACKER: Q A You have no notes of that conversation, correct? I didn't need notes of the retraction letter. It was a

public press release. Q Let's go back to the first page of this letter, J-16. You wrote, this In your

If we could highlight the first paragraph.

letter is in response to yours of June 9th, 2003.

June 9 letter, you attempt to assert claims on behalf of IBM with respect to its SVRX license with SCO. A Q A Q Yes. That statement is true, right? Yes. So you believed as of June 11th, 2003, that IBM's Do you see that?

license with SCO was an SVRX license, correct? A Q A Q A Yes. No doubt about that, right? No doubt about which part? That IBM's license was an SVRX license. Let me read this again. This sounds like a trick one.

Let me just see here. So IBM had an -- IBM has an SVRX license with SCO and

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Novell was asserting claims on behalf of IBM. that statement. Q A Q A Q

I agree with

You agree that the license was an SVRX license? It was a license with respect to their AIX license. Which is an SVRX license, according to you? Yes. So it was your testimony yesterday, and you've just

referred to it a minute ago, that Mr. Messman's letter -- or Mr. LaSala's letter to you and the Novell press release on June 6th was some sort of admission that SCO owned the copyrights; is that your testimony? A The June 6th -- say that again. The June 6th letter

was an admission? Q The June 6th press release, you believe -- you

testified a number of times that you believed it was essentially -A Yes, it was a retraction letter -THE COURT: Mr. McBride, please, while Mr. Acker

is speaking, do not speak over him. THE WITNESS: BY MR. ACKER: Q That, in your mind, Novell is telling the world on June Sorry, Your Honor.

6th that, in fact, SCO owns the copyrights, that is your interpretation of that press release, correct? A Yes.

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Q

And so for this period of time between June 6th and

until Novell makes another public statement, December 22nd, 2003, in your mind, SCO has told the world we don't own the copyrights -- excuse me, Novell has told the world we don't own the copyrights, SCO does, correct? A Q Incorrect. Well, there was no other press release between that

period of time, between June 6th, 2003 and December 22nd, 2003, correct? A Q That's correct. Novell didn't say in any public press release during

that period of time anything about the copyrights, right? A Q Not that I'm aware of in a press release. Now did you have conversations with the investing

public during that period of time? A Q Yes, I did. And it's true, isn't it, that during that period of

time you told the investing public, that is between June 6th of 2003 and December 22nd of 2003, you told the investing public Novell has given up, they say we own the copyrights, correct? A Q That's not correct. Not exactly the way you said it.

But that was the gist of what you told the investing

public? A Initially. It changed in the fall time frame.

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Q

Why don't we take a look at Exhibit L-17.

I hand you

what you we've marked as Exhibit L-17. Mr. McBride, this is a transcript of an interview that you gave on July 21st, 2005, correct? A Q Yes, that's right, Mr. Acker. If you turn to page 3 of the document -MR. ACKER: Honor. MR. SINGER: 2005. MR. ACKER: MR. SINGER: THE COURT: 2003. I move for admission of L-17. First of all, this is July 2003, not I move for admission of L-17, Your

I have no objection. Admitted.

(Defendant's Exhibit L-17 was received into evidence.) BY MR. ACKER: Q So on the third page do you see the interviewer asks

you a question and you give an answer that begins at the top, it begins with the word well? A Q Yes, I see that. The questioner asks you, well, Novell would say you You responded Do you see that?

actually don't own those copyrights fully.

yeah, well, the Novell thing, they came out and made a claim that held up for about four days and then we put that one to bed. If you go talk to Novell today, I will guarantee you

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that they will say -- what they will say, which is they don't have a claim on those copyrights, correct? A Q Yes, that's right. That's what you said in a press interview on or about

July 21st, 2003, right? A Q Yes, that's correct. Let me show you J-19. Mr. McBride, J-19 is an e-mail to you and a number of others at SCO dated August 18th, 2003, correct? A Q Yes. It's attaching a number of articles quoting yourself

and others, correct? A Yes. MR. ACKER: J-19, Your Honor. MR. SINGER: different articles. This is a composite of about eight If there is a particular one that We would move for admission of Exhibit

relates to Mr. McBride's testimony, perhaps Mr. Acker could point to that. MR. ACKER: is August 19th, 2003. Certainly. Page 6 of 18, article date

Also on page 16 of 18, an article

dated August 18th, 2003. MR. SINGER: What part on page 6?

We have no objection to the two passages which have been mentioned by Mr. Acker being admitted as part of a

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redacted document. MR. ACKER: That's fine, Your Honor. I'll just

show him those passages. THE COURT: More importantly, I don't see the need

for a long document like this going to the jury as an exhibit. If you can somehow clean it up, Mr. Acker, before

it goes to the jury, I would appreciate it. MR. ACKER: THE COURT: Absolutely, Your Honor. It will be admitted, presuming there

will be an appropriate redaction of unnecessary material between now and the time it goes to the jury. MR. ACKER: Absolutely.

(Defendant's Exhibit J-19 was received into evidence.) BY MR. ACKER: Q So, Mr. McBride, take a look at the -- can you see the

page numbers at the top -- 15 of 18 of that document? A Q Yes. Go down to the bottom, you see there is an article Do you see that?

there dated August 18th, 2003? A Yes. THE COURT: MR. ACKER: THE COURT: MR. ACKER:

Which item is it, again? I'm sorry, Your Honor? Which item is it? It's number 12.

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BY MR. ACKER: Q If you go to the next page, you see there is a quote in

the middle the page attributed to you from an address you gave, correct? A Q A Q Yes, that's right. The paragraph that begins with in regard? I see it. As of August 18th of 2003, you were still telling

people in the public, in regard to Novell's recent claim that it still owns the copyright to UNIX, McBride said it took SCO just four days to press the eject button on that claim, right? A Q Yes, that's right. That's a statement you made on or around August 18th,

2003, right? A That's correct.

BY MR. ACKER: Q Let me show you one more, Exhibit P-45. THE COURT: today? MR. ACKER: It is, Your Honor. And subject to the This is one of your new exhibits

discussion we had, I only offer a limited portion of this document subject to the discussion we had earlier today. MR. SINGER: Perhaps Mr. Acker could point me to

the portion that he is using.

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I have no objection to that portion. THE COURT: It will be admitted.

(Defendant's Exhibit P-45 was received into

BY MR. ACKER: Q Mr. McBride, just so the jury has some context, P-45 is

a transcript of a conference call that you and other executives at SCO provided in November of 2003 to the investing public, right? A Q Yes, that's correct. And what this document is is a transcript of what was

actually said by yourself and other Novell executives during the course of that conference call? A Yes, that's right. THE COURT: MR. SINGER: Mr. Singer. I thought Mr. Acker was focusing on a

particular passage in the document. MR. ACKER: THE COURT: BY MR. ACKER: Q And I misspoke a minute ago. It wasn't Novell I'm going to get to that right now. What page will it be found on?

executives, it was SCO executives in this conference call, correct? A I misspoke on, I guess, my answer. It was SCO

executives on a conference call.

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Q

You were all speaking so that one another could hear

one another, correct? A Q Yes. And so you heard what Mr. Bench -- was he your CFO at

the time? A Q Yes, that's right. You heard what Mr. Bench said to the investing public

in November of 2003, correct? A Q Yes, that's right. He said the following, along the way over the last

several months, once we had the copyright issue resolved where fully we had clarity around the copyright ownership on UNIX and System V source code, we've gone in and done a deep dive into Linux. A Q Yes. That's what Mr. Bench said to the investing public, Do you see that?

while you could hear, in November of 2003, right? A Q That's correct. When he's referring to the copyright issue resolved,

he's talking about who owns the copyrights, right? A Q That's right. Wasn't it the case, though, actually, despite the fact

that in July and August in 2003 SCO was telling the investing public that Novell has given up and has denied ownership of the copyright, you were actually receiving

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correspondence -- non-public correspondence from Novell saying just the opposite? A Q I wouldn't characterize it the way you said it. Well, didn't you receive a letter from Mr. LaSala on

August 4th, 2003 saying in no uncertain terms that Novell owns the copyrights? A That was the portion we talked about yesterday where

they had come back and flip-flopped, so yes. Q So as of August 4th, 2003, it's your testimony that

Novell has told you in a private letter from Mr. LaSala that your interpretation of the contract is wrong and Novell still owns the copyrights, correct? A That's not the way I would say it. MR. ACKER: BY MR. ACKER: Q This is a letter to you from Mr. LaSala dated August Why don't we bring up SCO Exhibit 105.

4th, 2003, correct? A Yes. MR. ACKER: please. BY MR. ACKER: Q Mr. LaSala said -- this in a private letter to you on And highlight the third paragraph,

August 4th, 2003, in other words, under the asset purchase agreement and Amendment No. 2, copyrights were not transferred to Santa Cruz, correct?

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A Q

That's what it says. And you also characterized an earlier letter of Mr.

LaSala? MR. ACKER: If we could go to SCO Exhibit 678, and

if we could take a look at the middle paragraph, please. BY MR. ACKER: Q Mr. LaSala, on June 26th, said this to you, SCO's We acknowledge, as noted in

statements are simply wrong.

our June 6th public statement, that Amendment No. 2 to the asset purchase agreement appears to support a claim that the Santa Cruz Operation had the right to acquire some copyrights from Novell. Then he continued, upon closer

scrutiny, however, Amendment No. 2 raises as many questions about copyrights transferred as it answers. Indeed, what is

most certainly not the case is that any question of the UNIX copyrights -- of whether UNIX copyrights were transferred to SCO as part of the asset purchase agreement was clarified in Amendment No. 2. This is what you characterized in your testimony yesterday as a flip-flop, right? A Part of the flip-flopping. This is a few of the

letters that were flip-flopping. Q So what you've told this jury is that on June 6th you

believed Novell agreed with your position, but then on June 26th they had flip-flopped, right?

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A

I viewed that this was a flip-flop.

I viewed that

other parts of Novell, Jack Messman specifically had told me you got the copyrights. Q Then on August 4th Mr. LaSala wrote you another letter

and told you in no uncertain terms Novell's position was it still owned the copyrights, right? A Q Which was a different position than this letter. But you and your executives at SCO are still out in the

marketplace until November of 2003 saying that Novell has agreed with your position and that Novell has agreed that SCO owns the copyrights, correct? A Q That's not how we characterized it. So Novell, in private, was telling you you are wrong

about your interpretation of the APA, correct? A Q The Novell attorney was, not Jack Messman. But you, in public, are telling the world Novell has

given up, right? A Q I was relying on Messman's comments. Then what happens on November 22nd is that Novell on

its Web site puts all the correspondence up, correct? A Q That's correct. So they tell the world, that has a keen interest in

this, here's Novell's position and here is SCO's position, and here is the asset purchase agreement, and here's Amendment 1 and here's Amendment 2. All that went up on the

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Web site, right? A There were a number of things. That sounds roughly as

I remember it. Q And Novell left it to the public to decide who was

right, correct? A Q I don't know what Novell left it to. Did you have a conversation with Chris Sontag in the

last three months? A I've talked to Chris a few times since I left SCO. I

don't know exactly what point in time. him in that period of time, yes. Q

I probably talked to

It's true, isn't it, within this year actually, in

2010, that you called Mr. Stone, who is a venture capitalist, and asked him to invest in one of your new ventures related to a protective covering for a cell phone? Isn't that right? A Q That was the call that was made, yes. And you asked him to invest money in your company

because you trust Mr. Stone, correct? A Q A I don't recall saying that. You called him and asked him for money, right? We were rounding up capital. We called and talked to

him regarding his firm to see if they would be interested in investing. It was at the request of one of the other people

of the cell phone company that asked that I place a call

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into Stone. Q Isn't it also true that during that conversation that

you said to Mr. Stone, Chris, don't worry about these Maureen O'Gara allegations, those won't be part of the trial? A Q Didn't you say that to him?

No, I didn't say that. Just a few more questions, Mr. McBride. Now you told the jury yesterday and today that the

reason that you believe that the SCOsource initiative failed after December 22nd, 2003 and going into 2004 was because of Novell's actions, right? A Q A Say that again. Yes. Yes. They were the major problem for the SCOsource What failed, the SCOsource?

program failing. Q Let me show you what we've marked as Exhibit Q-22. Mr. McBride, Exhibit Q-22 is a form 10-K filing that SCO made with the SEC for the fiscal year ending October 31st, 2003, correct? A Q Yes. So this document would have been filed sometime in

early 2004, correct? A Q Yes, that's right. Again, as with your other SEC filings, if you go to the

second to the last page of the document, you'll see your

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electronic signature there. A Okay. MR. ACKER: Your Honor. THE COURT: MR. ACKER: BY MR. ACKER: Q A Q Do you see that, sir? Yes, I do. You signed it on or about or your electronic signature It's already been admitted. Thank you, Your Honor. I move for admission of Exhibit Q-22,

was affixed with your permission on January 28th, 2004? A Q Yes. You would have reviewed the statements in Q-22 before

agreeing to have that happen? A Yes, that's right. MR. ACKER: If we go to page 36 of 87, please. If

we could highlight the paragraph that begins with our future SCOsource licensing revenue. BY MR. ACKER: Q What SCO, with your permission, told the SEC and the We initiated

investing public was this in January of 2004:

the SCOsource licensing effort in January of 2003 to review the status of UNIX licensing and sublicensing agreements. This effort resulted in the execution of two significant vendor license agreements during fiscal year 2003 and

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generated $25,846,000 in revenue. A Q Yes.

Do you see that?

That's a reference to the Sun and Microsoft deals plus

several other smaller licenses, correct? A Q Yes, that's right. Due to a lack of historical experience and the

uncertainties related to SCOsource licensing revenue, we are unable to estimate the amount and timing of future SCOsource licensing revenue, if any. right? A Q Yes. If we do receive revenue from this source, it may be That statement was also true,

sporadic and fluctuate from quarter to quarter, correct? A Q A Q Yes. True statement? Yes. Our SCOsource initiatives are unlikely to produce a

stable or predictable revenue stream for the foreseeable future. A Q Also true, correct?

That's right. Then you told the government, additionally, the success

of this initiative may depend on the strength of our intellectual property rights and contractual claims regarding UNIX. Then you finished, including, the strength

of our claim that unauthorized UNIX source code and

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derivative works are prevalent in Linux, correct? A Q Yes, that's correct. So the success of SCOsource, in your mind, in January

of 2004 would depend, in part, on the strength of your claim that there actually was unauthorized UNIX source code and derivative works prevalent in Linux, right? A That was one of the risk factors we mentioned, that's

correct. Q Mr. McBride, you were hired as CEO of SCO on June 27th,

2002, correct? A Q Yes, that's correct. This was a significant development in your professional

career as your first job as a CEO of a publicly traded company, right? A Q Yes. Over time you acquired a significant number of stock

options to purchase SCO stock, correct? A Q A Q Yes, that's correct. Today you have over a million such options, correct? That's correct. In fact, of that million, 600,000 of those options are

fully vested, right? A I don't know exactly how many are vested. I think it

would be more than that, but yes. Q Of those 600,000 that you initially received upon

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becoming CEO in 2002, your strike price is 76 cents, isn't it? A Q That's correct. So what that means is that if SCO is successful in this

lawsuit and the SCO stock goes to $1.76, you stand to make $600,000, right? A Q I think the way you did the math, that's correct. If the SCO stock price goes to $2.76, you stand to make

$1.2 million, correct? A Q Correct. If the SCO stock price goes to $5.76, you stand to make

$3 million, correct? A Q A Q Correct. It's a lot of money, isn't it, Mr. McBride? Yes, it is. That is not considering additional stock options you

have and stock ownership, correct? A Q That's correct. So you have a significant financial stake in the

outcome of this case, don't you, sir? A I have a material -- what should I say -- interest in

the outcome of this case here, there is no doubt about that. Q Not only do you have a financial interest, you have a

reputation interest in the outcome of this case, don't you, sir?

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A Q A Q

I would say that's accurate as well. You were fired as CEO last year, correct? That's correct. You believe that Novell has harmed your reputation,

correct? A Q A I believe that is accurate, yes. You want to be vindicated, don't you, sir? I believe that's correct as well. MR. ACKER: Honor. THE COURT: MR. SINGER: Mr. Singer. I have some questions, Your Honor. I don't have anything else, Your

REDIRECT EXAMINATION BY MR. SINGER: Q A Q Mr. McBride, are you out of a job right now? Yes, I am. And were you terminated in October 2009 as part of a

series of cost cutting lay-offs -A Q A Q Yes, I was. -- that were pursued? Yes, I was. And let me go back to your employment with Novell. How

many years were you employed with Novell? A Q I was there eight years. Were you able to obtain positions of responsibility

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while you were at Novell? A Q Yes, I was. What was the highest position that you reached in

Novell? A I was vice president, general manager of the extended

networks division. Q A Was that an important division to the company? It was a startup group, had new emerging exciting So, yes, I guess you would say it was

technology. important. Q A Q A Q

When you left Novell, did you leave voluntarily? Yes, I did. That was after, you said, eight years? Yes. Now let's turn back to some of the points that were There was some questioning

raised in cross-examination.

earlier today about the fact there was initially made -- I think the first press release is a statement about patents and copyrights. Do you remember that line of

cross-examination? A Q Yes, I do. Did the company, that is SCO, determine after that that

there were no patents which were owned? A Q Yes, we did. Did the company ever bring a patent infringement claim

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against anyone? A Q No, we did not. Did the company ever seek to sell a SCOsource license

at that point based on patents as opposed to copyrights? A Q No, we did not. In subsequent press releases, did you refer to

copyrights? A No -- yes, we referred to copyrights. We didn't refer

to patents after those January press releases were issued. Q Now you were asked about whether you could reach

certain reasonable conclusions in looking at the asset purchase agreement. A Yes. MR. SINGER: Mr. Calvin, can you put up on the Can you go to the excluded Turn to the Do you recall that line of questioning?

screen Exhibit SCO 1 again.

asset schedule in the original agreement. second page, please. BY MR. SINGER: Q

When you were talking about being able to reach

reasonable conclusions, you were being asked about the language which appears in the original APA that had this reference to all copyrights; is that correct? A Q A Yes, that's correct. Was that language removed by an amendment? Yes, it was.

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MR. SINGER: Amendment No. 2. BY MR. SINGER: Q

Can you turn, Mr. Calvin, to the

Can you highlight paragraph A.

Is this the language that replaced the language that we

just were looking at? A Q Yes, it is. Did you believe anyone could have a reasonable

conclusion in light of this language as to whether or not SCO owned the copyrights? Let me rephrase the question. Could you believe anyone in light of this language could have any reasonable conclusion that Novell had retained the copyrights? A Q No. Now with respect to reasonable conclusions, do you have

a belief as to whether the seller, Novell, if it had possession of Amendment No. 2, would be in a position to know what it had sold to Santa Cruz? MR. ACKER: MR. SINGER: Calls for speculation, Your Honor. It think it just follows his line of

examination about reasonable conclusions. THE COURT: THE WITNESS: I'll overrule the objection. I believe that if Amendment 2 had

been there from day one, we wouldn't be sitting here today. I think reasonable minds on both sides of the table would

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look at it and conclude that Amendment 2 fully squared the problem of the excluded assets. I would have never made the

first call in to Greg Jones and there wouldn't have been the issues that went from there. BY MR. SINGER: Q After June 6th, did Novell, even at the level of the

CEO, have Amendment 2 right in front of him? A Q Yes, he did. Now let's talk about SVRX royalties. There were some I wanted to ask

questions about the agency relationship.

you, during the time that you are CEO, how significant was the revenue stream that was being generated by these old legacy SVRX royalties that had been in place in 1995? A It was something that had been going down. It was

some -- are you talking about revenue stream to SCO or to Novell? Q A Well, total revenue stream. Total revenue stream was roughly eight million, as I

recall it, for the year, and we were collecting only about five percent of that. Q Now you were asked some questions about the memorandum

that Mike Anderer had sent to you? A Yes, right. MR. SINGER: That is Exhibit C-12. Mr. Calvin,

can you put that on the screen.

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BY MR. SINGER: Q A Q A Q A Q This was in January 4th of 2003, correct? Yes, that's right. Had SCO at this time identified Amendment No. 2? No, we had not. Was Mr. Anderer given Amendment No. 2? Eventually. Not at this time, but eventually he was.

So is his statement here, with respect to his view of

the agreement, based on the APA without the benefit of Amendment No. 2? A Q That's correct. And can you read what he said in the last statement --

next to last statement? Go ahead. A I need to read this 20 more times to get it straight.

So understand this is just a first read. Q Did there come to be a later time when Mr. Anderer was

presented with Amendment No. 2? A Q Yes. Did that affect his opinion as to whether or not there

was clarity on the issue? A Q A Yes. And in what way did it clarify the situation? Well, I remember him sending me e-mails saying, this is

awesome news.

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Q A

What was your understanding of what was meant by that? It was awesome news that Amendment 2 had been found

which cleared up the copyright concerned he raised earlier. Q Now you have been shown a lot of press articles that

were presented and reflected criticism of SCO engaging in its SCOsource licensing program; is that correct? A Q That's correct. Now did SCO seek to respond to those critics by -- or

at least to its corporate clients or potential clients by showing code that was allegedly infringing? A Q Yes, we did. Was that what was in the code room that you testified

about earlier today? A Q Yes, that's right. In addition, were there articles which were presented,

after looking at that code, that supported SCO's position? A Yes. MR. SINGER: BY MR. SINGER: Q This is one page of Exhibit 748. Do you recognize that I would like to go to Exhibit 748.

this is part of what you used in dealing with customers who had raised concerns? A Yes, it is. MR. SINGER: MR. ACKER: I move the admission of 748. Subject to just this page, that's no

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problem. THE COURT: be admitted. (Plaintiff's Exhibit 748 was received into evidence.) BY MR. SINGER: Q Can you tell us about each of these statements and, 748 is just this one page and it will

first of all, whether they were used with potential customers for SCOsource licenses? A Q A Yes, they were. And how did you present these to SCOsource customers? Well, we had a PowerPoint presentation that we put

together that outlined where we were with our SCOsource program, where we were with our different programs and products that we had inside of there, and then we laid out our claims that we had, our licensing programs. And then on

top of that, we had some comments that third parties had made regarding our program. Q So this was an example of that.

One of those was Information Week which said that, my

impression is that SCO's claim is credible, says Laura DiDio, a Yankee Group analyst who was shown the evidence by SCO Group earlier this week. code? A Q Yes, that's right. There is another one. What is EE Times? It appears to be the same

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A Q

Electronic Engineering Times, I believe. And Mr. Claybrook is a research director for Linux and Is it

open-source software at Aberdeen Group in Boston.

your understanding that he stated that, if everything SCO showed me today is true, then the Linux community should be very concerned? A Q Yes, he did. Computer Weekly quoted a George Weiss, vice president What is Gartner?

of the Gartner Group. A Q

Gartner is a research analyst group. And did he state, from what I have seen, I think people

should be taking the SCO accusations seriously? A Q Yes, he did. Did you believe that there was a division, then, in the

technology community with respect to how strong a case of infringement there was with respect to the amount of UNIX that was in Linux? A Q Yes, there were varying opinions. And was this the state of affairs when Novell came

forward in May of 2003 with its initial claim that you didn't own UNIX, UNIX copyrights? A Q Yes. Now let's look at another one of Novell's exhibits,

A-15, Mr. Gasparro's e-mail. A Okay.

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Q

I think you were shown part of this e-mail, but I would

like to look at another part. A Q Okay. Let's focus on -- and Mr. Gasparro was a person who

worked at SCO; is that right? A Yes, that's correct. MR. SINGER: Mr. Calvin, can you blow up the

second paragraph and the third paragraph. BY MR. SINGER: Q Did Mr. Gasparro tell you that, it appears that the

Linux end-user community had suspected issues over IP for quite some time? A Q Do you see that?

Yes, I see that. Did you view that as consistent or inconsistent with

their being issues of copyright infringement based on Linux? A Q Say that again. Did you view that the fact that the Linux end-user

community had suspected issues over IP -- does IP to you mean intellectual property? A Q Yes. -- for quite some time, did that reflect that there

was -- in your view, was that consistent with the articles we just looked at or was it inconsistent? A Q That was consistent with those articles. In the second paragraph there is a statement -- or a

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question that asked, should we consider publishing the results of three independent auditors without divulging actual code. A Do you know what that refers to?

That refers to the fact that we had independent

technology teams that had come in and had given us, as a management team, advice and opinions that, in fact, Linux was infringing on our copyrights. Q Now there was a reference -- or a question by Mr. Acker

about the fact that the company decided not to contest a certain action brought in Germany; is that correct? A Q A Q Yes. Why did your company not contest that action? Because it didn't want to try its claims in Germany. Did you prefer to try those in a United States

courtroom? A Q Yes, that's correct. There was an article which you were asked about --

before we turn to those articles, in your view, was there a difference between people who questioned whether Linux infringed UNIX and Novell's challenge to copyright ownership? Were those two different things or the same type

of thing to you? A Q A They were two different things. Can you explain that? Right. There were really two issues here. Where the

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discussion typically started was is there infringement in Linux. Then before you could move to getting it licensed,

it came down to, well, if you don't even own the copyrights, even if there is infringement, how can we go there. So

there were two different issues, sometimes dealt with by the same customer. other. Q Sometimes they would bring up one or not the

Those were the two big issues that we faced.

And did you view them to be the same or did one, in

your view, create a more serious difficulty to overcome than the other? A The copyright ownership problem was by far the biggest

because -- that's the answer to that. Q A And the reason is? The reason is because if you don't have the ownership,

then it doesn't matter if there is ten lines of infringement or hundreds of thousands of lines or millions of lines, it doesn't matter if you don't own the copyrights and you can't enforce it. Q Now I would like to turn to the forecast of earnings Perhaps we

that you were asked about by Mr. Acker in M-14. can look at that document. A Q Okay.

Now, first of all, in this press release, did SCO

publicly announce that there would be a formal earnings release on May 28th, 2003?

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A Q A

Yes, we did. Is that in the fourth paragraph? Yes, it is. MR. SINGER: Mr. Calvin, can you highlight that.

BY MR. SINGER: Q So would this mean that everyone, including Novell,

would know that's when you are releasing your actual results? MR. ACKER: speculation too. THE COURT: THE WITNESS: BY MR. SINGER: Q Now on May 14th, 2003, do you recall Mr. Acker pointing Overruled. Yes. Objection, leading, Your Honor, and

out to you that the stock price had closed at $3.55? A Yes, I recall. MR. SINGER: And can we put up this slide. I

think we have some other slide that deals with the price movement on May 28th, 2003, Mr. Calvin. BY MR. SINGER: Q While he's looking for that, is there a difference

between projected results and having actual results announced? A Q Yes. After your projected results were announced on May

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14th, when the stock was $3 and something, had the stock increased to about $10? A Yes. Over the next week or two, it continually trended

up until it got up to that nine, $10 mark. Q And Mr. Acker made a point that early in the morning

before Novell's press release there appeared to be some downward trending in the stock. A Q Yes. Do you know whether, in fact, Novell had put out word Do you see that?

earlier that day in advance of their press release that would have indicated that they were going to make a statement that asserted ownership to the copyrights? MR. ACKER: THE COURT: MR. SINGER: BY MR. SINGER: Q And this is a news flash article on May 28th, 2003, and Calls for speculation, Your Honor. Sustained. Can we look at Plaintiff's 172.

I am going to ask the witness if you have a basis, in looking at this, to say whether or not there was early morning announcements regarding this stock? Let me reframe that. Do you know, as you sit here today without looking at this document, exactly when the first public word came out about Novell's May 28th press statement? A No, I don't know exactly.

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Q

I would like you to look at this document for a moment

and see if that refreshes your recollection, this article, that there was a news flash on May 28th, 2003. MR. ACKER: object. Well, Your Honor, I'm just going to

If he has any refreshing recollection, it's based As to what his knowledge was at the time, that

on hearsay.

would be based on hearsay. MR. SINGER: I think these are matters of public It doesn't go to the truth of

record as to the timing. anything.

It's the timing of certain announcements. MR. ACKER: THE WITNESS: Exactly, and what -I thought he meant what time of the

day. MR. ACKER: THE COURT: I think he did too. Why don't we start over again.

Mr. Singer, why don't you ask the question. BY MR. SINGER: Q Looking at the May 28th, 2003 news flash, is your

memory refreshed as to what time of the day there was any news about Novell's announcement? A My recollection of their announcement -- we're talking

about May 28th? Q A Q Yes. -- is that it came later in the day. Does this refresh your recollection as to whether there

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was some advance word put out into the market about what Novell was going to do? A Yes. MR. ACKER: based on hearsay. Your Honor, he's going to testify

He's testified twice he didn't have a Now he's shown

memory other than it was later in the day. hearsay to try to change the answer. MR. SINGER:

This is the purpose of a document, to

refresh recollection as to something which one would ordinarily not remember so precisely. MR. ACKER: There is a difference between We're in the

refreshing recollection and parroting hearsay. later category. THE COURT:

I think this has some kinship to the

document that you wanted the witness to testify to and then asked questions about the stock price. I think I have got

to let it proceed to this point, but no further, okay. MR. SINGER: Yes. So whatever

Let's take down the document.

refreshing it has or has not provided you have. BY MR. SINGER: Q Do you know, based on your recollection, having been

refreshed, whether there was some advance knowledge into the market that Novell was going to come out later in the day and say on May 28th SCO doesn't own the copyrights?

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A Q A

Yes. What is your understanding? Well, my understanding was that Maureen O'Gara had

understood the night before -MR. ACKER: BY MR. SINGER: Q said. I'm not asking you to talk about what someone else It's simply -- and I will move on from this point if Your Honor, this is just hearsay.

you don't have a recollection, Mr. McBride, but do you -THE COURT: recollection of this? THE WITNESS: recollection? BY MR. SINGER: Q This being what time in the day, whether there was any Of this being what is the exact Do you have an independent

advance knowledge that Novell was going to put out a press release on May 28th, 2003? A Q Yes, I did. Was that early in the day, late in the day that word

began to circulate about the press release that was going to be forthcoming? A Q Early in the day. If you then go back to the stock chart that we were

looking at, the movement -- the initial movement down, then, that Mr. Acker was talking about occurred early in the day

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on May 28th, 2003? A Q That's correct. Then when the actual press release came out is when you

see the decline that indicated it is going down from $8 and some cents down to $6 and some cents? MR. ACKER: last three questions. THE COURT: BY MR. SINGER: Q Can you tell the jury what the nature of the decline Sustained. Objection, leading, Your Honor, the

was from the point in the day when Novell published its ownership claim down to the end of the day? A Yes. It drops from eight something -- it looks like So eight

about 8.30 or so per share, down to six something. something down to six something. pennies. Q

I don't see the exact

I would like to turn to another subject, which was the This is J-16.

June 11th letter.

Actually, before we go to that, let's go to your June 6th letter, which shall SCO 95. Do you recall some questions, Mr. McBride, about the fact that you didn't put in the letter the fact that Mr. Messman had said to you, okay, Darl, you have got the copyrights. A Do you recall that line of questions?

Yes, I do.

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Q

Would you read the first sentence of the second

paragraph in the June 6th letter? A Importantly, and contrary to SCO's assertions, SCO is

not the owner of the UNIX copyrights. Q I was referring to the second paragraph, the one after

you talk about the press release. A As you know, your accusation that SCO does not own the

UNIX copyrights was false and was without a good faith basis or belief. Q And did you make -- seem to make any case in the June

6th, 2003 letter to persuade them of the ownership of the copyrights or were you talking about consequences? MR. ACKER: MR. SINGER: THE COURT: BY MR. SINGER: Q Let's go down later in the letter to the part where you Do you see the three Objection, leading, Your Honor. I'll reframe that question. Please.

ask him what you want him to do. items? A Q Yes.

Do you see, number one, is you wanted Novell to affirm

publicly that Novell has not retained any rights in and to the UNIX copyrights? A Q Correct. And Mr. Messman as of this time affirmed privately in

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his conversation to you that he didn't believe that Novell had an ownership interest in the copyrights? A That's when he said, okay, Darl, you've got the

copyrights, yes. Q And then later this day did you receive Exhibit 96?

Can we look at the -- this is Mr. LaSala's letter? A Q Okay. Can we turn to the second page. This is one day after

your call on June 5th with Mr. Messman? A Q Yes, that's right. Do you see the language which says, Amendment No. 2 to

the 1995 SCO-Novell asset purchase agreement was sent to Novell last night by SCO. To Novell's knowledge, this The amendment

amendment is not present in Novell's files.

appears to support SCO's claim that ownership of certain copyrights for UNIX did transfer to SCO in 1996. After Novell publicly stated this, did you feel there was any need to put into your letters with Mr. Messman the fact that the amendment supports SCO's claim that ownership of the UNIX copyrights transferred? A Q No, not at all. So when we turn to the letter that you were asked about

by Mr. Acker, the June 11th letter, J-16, did you feel any need to put into the June 11th letter, five days after this press release by Novell, by the way, Jack, this confirms

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what you told me on the phone, that Novell isn't claiming the copyrights any longer? A Q No. Now you were asked some questions about this letter Do you recall that?

with respect to SVRX licenses. A Q Yes.

And what I would like to do is ask you to take a look

at the asset purchase agreement? A Q Okay. By the way, before we go there, if you look at the

June 11th letter, had Mr. Messman put into his letter the term SVRX licenses? his letter -A Q A Q Yes. -- in the first paragraph there? Yes. Now can we turn to Exhibit 1 again, the asset purchase Do you see that, which quotes part of

agreement? A Q Okay. Let's look at section 4.16(a). Now, Mr. McBride, were you involved in drafting this agreement? A Q A No. Or negotiating this agreement? No, I was not.

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Q

But if we look at SVRX licenses as used for purposes of

this section, does it have a particular defined meaning? A Q Yes, it does. And does that require you to look at item VI of

schedule 1.1(a)? A Q A Q A Q Yes, it does. Let's look at that. Okay. Is this the schedule? Yes, it is. Let's turn to item VI. Do you see where it says, all

contracts relating to the SVRX licenses listed below? A Q Yes. And in the SVRX licenses listed below, do you see IBM's And we can put the second

software development agreement? page on right after this. A Q I don't see it on this page.

Can we turn to item three of the APA -- item III of

this schedule. Now item III, can you read what falls within item III out loud, please, just the heading part. A All of seller's rights pertaining to UNIX and UnixWare

under any software development contracts, licenses and any other contract to which seller is a party or by which it is bound and which pertain to the business, to the extent that

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such contracts are assignable, including without limitation. Q Now can we go down to -- I think it's on the next page. Can you read what it says

It's item L under this provision. there under III L? A

Software and sublicensing agreements, this includes the

source code and sublicensing agreements that seller has with its OEM, end user and educational customers. The total

number of these agreements is approximately 30,000. Q Is the IBM software development agreement one of the

agreements that SCO had under section III of the APA? A Q Yes. Now did Mr. Acker show you this particular schedule

which defines what an SVRX license is when he was asking you those questions? A Q No. Should he have held up his hand when he was asking you

that question? Let's go on to another topic. A Q Okay. In your cross-examination you were asked about vendor Do you recall that?

licenses such as Microsoft and Sun. A Q That's right.

And at that time -- I think the question was were these At that time had you announced a right

SCOsource licenses.

to use -- license to the public in the first quarter or

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second quarter of 2003? A Q A Q No, we had not. So in April 2003, was that yet on the market? No, it was not. And with respect to Microsoft and Sun, would you have

considered those vendor agreements or would you have considered those right to use agreements? A Q Clearly vendor agreements. You were shown a number of articles about the fact that

in the summer of 2003 you thought the issue over copyright ownership was over. A Q Yes, I do. Did you think that Novell, after publicly making its Do you recall that questioning?

statement on June 6th, was going to do an about-face later in August and in subsequent months? A Q No. In fact, if we turn to one of those articles that you

were asked about in August 19th, J-19 -- can we go to page -- I think it's page 16 of 18 that you were being asked about. MR. SINGER: please. Page 16, I believe. One more page,

It's the next page.

BY MR. SINGER: Q In regard -- I'm just going to read you the language. In regard to Novell's recent

Why don't we -- here we go.

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claim that it owns the copyright to UNIX, McBride said it took SCO just four days to press the eject button on that claim. A What were you referring to?

I was referring to the -- first of all, Messman's Then the finding of

letter to me and the press release. Amendment 2.

And then the calling of Jack and informing him And then finally him saying,

that we found Amendment 2.

okay, Darl, you have the copyrights. Q If we go to the next paragraph, can you read that to

yourself? A Q A Sure. The after attacking us. After attacking us, Novell's CEO, Jack Messman, was

then irate that we had not told them there was an amendment to the contract between us that clarified our copyright ownership of UNIX. He seemed to believe -- he seemed to

believe that we knew about it but weren't telling them so they could attack us and look foolish. Q Go figure.

Mr. McBride, is this consistent with your recollection

of that conversation with Mr. Messman on June 5th? A Yes, it is. THE COURT: MR. SINGER: THE COURT: have? Mr. Singer, how much more do you have? Just a couple more minutes. Mr. Acker, how much recross will you

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MR. ACKER: THE COURT: MR. ACKER: THE COURT:

Not a great deal, Your Honor. Can you be more specific? Five, ten minutes. Okay. Counsel, I'm inclined to go

ahead and break now and let you finish with your redirect tomorrow, then recross. I don't think we ought to try to So we are going to recess now,

finish this witness today. all right. MR. SINGER: THE COURT:

Thank you, Your Honor. Ladies and gentlemen, let me, first of

all, thank you for the way you have been conducting yourselves. This has been a long week, plus, and you have

heard a lot of testimony, but you have been paying attention. You have remained alert and have tried to be That is very important. And I hope

attentive throughout.

you will continue to do so. Again, I will remind you that though you have heard a lot of testimony, you still have a lot to hear, and it would not be appropriate for any of you to be making up your mind in regards to any of the issues in this case because you really don't know what those issues are until you've been instructed on the law and until you've heard closing arguments, which you've heard before. I would just gently remind you again about the importance of you not discussing this with anyone or

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allowing anyone to discuss it with you, that you not do any research on your own, you not listen to anything or watch anything or do anything on the Internet, on any of those social network sites that have been read to you several times already. It's very, very important that you be

confining yourselves to this case, only what you hear in this courtroom and absolutely nothing else. We'll be in recess until 8:30 tomorrow morning. (Jury excused) THE COURT: Mr. Singer, I asked you a question

before the jury came in which was really just a short -- and hoping for a short answer, and that was are we on schedule or have we fallen behind? MR. SINGER: We are behind schedule. We are

seeking to address that by trimming some of what we plan to put in. Obviously we don't have control over the Our plan is, after

cross-examination length of witnesses.

Mr. McBride finishes his testimony, to have Mr. Pisano testify. There is a possibility that, before the two of We're

them, we would present a deposition of Ms. O'Gara.

either going to use that then or later in the day, or possibly the beginning of Thursday. The lineup is generally

finishing Mr. McBride, then we would go to Professor Pisano and Professor Botosan. balance of the day. We think that's going to take the

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We're hopeful, if we finish all of that, then we have Mr. Stone, we've asked to be called adverse, on Thursday to appear. And I'm hopeful we can finish our case

on Thursday with the balance of some very short witnesses, Mr. Maciaszek, Mr. Nagle, and Mr. Tibbitts, on Thursday. That's our game plan. THE COURT: If they finish by, roughly, noon on

Thursday, Mr. Brennan, how does that play out as far as you and meeting the three-week schedule? MR. BRENNAN: THE COURT: MR. SINGER: cross-examination? THE COURT: commitment. MR. JACOBS: Your Honor, I will field this. I Yes. I'm not holding you to that May I confer with my colleagues? Yes, please. Again, we're assuming the

think we are -- I think we can get the case done on the original schedule. with SCO. We're keeping time. We're trading time

So far we seem to be very closely in sync in

terms of the clock. What would make that more assured is if we could work out some mechanism so we don't have to spend a lengthy amount of time on the covenant of good faith and fair dealing issue, but would rather have the opportunity to augment the record for the Court's determination of that

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issue.

I have not ventilated this with SCO's counsel yet,

so we haven't worked out what that might look like. But it would be something like, if there is something we didn't get in now, we would get it in through deposition testimony that's been taken on that topic and through exhibits and argument to the Court. That would

constrain what we really have to do in this courtroom to the ownership and slander related topic, and I think we would feel a little more comfortable with trimming our case, if that were true. THE COURT: hands issue? MR. JACOBS: Honor. I would have to consider that, Your Would that also include the unclean

Let me think about that and get back to you. THE COURT: Okay. If you would think about it,

discuss it with Mr. Singer, then try to make a united presentation to the Court as to what you would like to do. The Court certainly has no objection to dealing with that issue and perhaps even unclean hands by way of non-live testimony. MR. SINGER: We're happy to discuss it with

Mr. Jacobs and see where we go with that. I just wanted to be complete in setting forth the schedule, and Novell already is aware of this. There are

two witnesses, essentially, in our case that would be

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presented next week. witness.

One is Mr. Keller, he's a short

The other, of course, is Mr. Messman, who's

supposed to appear on the 24th. THE COURT: All right, counsel. If you would

We do have hearings this afternoon. please clear the desks.

We'll be in recess until 8:30 in the morning. (Whereupon, the trial was continued to Wednesday, March 17, 2010 at 8:30 a.m.)