SCO Grp v. Novell Inc

Filing 864

NOTICE OF FILING OF OFFICIAL TRANSCRIPT for dates of March 19, 2010-Jury Trial before Judge Ted Stewart, re 567 Notice of Appeal,. Court Reporter/Transcriber Patti Walker, CSR, RPR, CP, Telephone number 801-364-5440. 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 Three, # 2 Part Three)(jmr) Modified by removing restricted text on 7/19/2010 (rks).

SCO Grp v. Novell Inc

Doc. 864 Att. 2

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 MR. SINGER: THE COURT: MR. SINGER:

(12:30 p.m.) Your Honor? Yes, Mr. Singer. Um, I just wanted to note, if I might, We do not have any objection to

one additional point.

making clear, in reading this, that the reference to UNIX and UnixWare copyrights is at the time of the APA. So that

would eliminate any confusion that we are suggesting that these assertions were to the SCO UnixWare copyrights that are generated after the APA. The point is as of the time of

the APA because we think that that is what we're talking about. But to the extent there was an issue raised about

the confusion, I think that could easily take care of that. THE COURT: Well, counsel, based on what I know about

this case so far, I would say that Mr. Jacobs' position is completely without merit. If something develops during this

next week that persuades me otherwise, then perhaps I will have a different view of it. If this is pursued to any

degree, then I have no choice but to allow you to read the admissions into the record. MR. SINGER: THE COURT: MR. BRENNAN: Thank you, Your Honor. Let's bring the jury in. Just one quick thought, Your Honor,

unrelated to what the court just mentioned. THE COURT: Go ahead, Mr. Brennan. 1742

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MR. BRENNAN:

As you know, we have been working with

respect to the scope of Mr. Tibbitts testimony given the work product and privilege objections that have been raised. There is quite a number of them. My thought is rather than

interrupt or hold the jury further, perhaps we ought to finish with Mr. Nagle, see what the day looks like, but I think it will probably take five or 10 minutes to go through it, maybe less, maybe I'm overstating it, but to go through the number of objections that were asserted in his deposition. So I just wanted to alert you. So you have not yet reached an agreement

THE COURT:

that will allow Mr. Tibbitts to be brought to the -MR. BRENNAN: We have not reached an agreement on the

scope of what his examination will be. THE COURT: MR. NORMAND: Mr. Normand? In my view, Your Honor, we're talking But with

about the margins of Mr. Tibbitts testimony.

respect to the margins, there is room -- there is disagreement between Novell and SCO. THE COURT: Well, if you're suggesting that when we

finish with Mr. Nagle that we recess for the afternoon, is that what you're saying, or do you want me to take another recess and bring the jury back? MR. BRENNAN: I'm sure that perhaps would be of I am willing to do it either way. 1743

concern to the court.

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I'm willing to do it now.

I just didn't want to have a

lengthy or lengthier break than the court would want and I didn't want to interrupt the cross-examination. I am happy

to do it either way that the court would prefer, Your Honor. MR. NORMAND: Your Honor, we would prefer to have

Mr. Tibbitts come on this afternoon, and I take it that if you're concerned about bringing the jury in and out, maybe we ought to try to do it now. THE COURT: MR. BRENNAN: this. Well, let's do it now then. Okay. Your Honor, perhaps I can do

The deposition transcript that is at issue is the

deposition of Ryan Tibbitts taken in this case on April 24th, 2007. I believe, Your Honor, we have tendered a

copy of that transcript, and I would like to highlight, at least in my mind, what appear to be three species of lines of examination to which objections on the ground of either attorney/client privilege or work product were raised and for which the witness, Mr. Tibbitts, was instructed not to answer. The first of those is found on page 16 of the April 24th, 2007 transcript and it appears at lines 10 through 18. And perhaps I can very briefly give some context that I think will help the court explore these areas. Mr. Tibbitts

was asked about a number of contacts that he had with either SCO licenses or potential licensees and, for example, in the 1744

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reference that I just gave you the question that was asked of him, this has to do with Questar, again page 16 line 10, "With respect to the Questar license, does SCO contend that Novell interfered with that in any way; that it would have been a larger license, had Novell not done what it's done and said what it's said?" And then the objection, and then what follows is the assertion by the witness, who is an attorney, "That's work product." And thus, as the court can read, there was no The witness was not

disclosure of -- well, let me back up.

allowed to answer the question as to whether SCO even contended whether Novell had interfered and Novell was not at that deposition in April to find out the basis for that contention. THE COURT: MR. NORMAND: Mr. Normand? I was going to wait for Mr. Brennan to

finish because I'm taking an entirely different approach but let me try it this way. On that question, Mr. Tibbitts is He is not testifying as a

not testifying at this trial. damages expert.

He will testify to his discussions with

potential SCO source licensees, and he testified at length to all of those discussions from pages 9 to 40 in his deposition. We are not putting him up as an expert on the issue of how much damages SCO suffered, or even whether SCO suffered 1745

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some quantifiable amount of damages related to these discussions with potential customers. MR. BRENNAN: The problem is, this is repeated time

and again, is the witness is asked whether there is even a contention being made with respect to this customer. the answer is, as you can see -THE COURT: The contention being that this would be And

considered part of the damages? MR. BRENNAN: Well, twofold. Yes, absolutely, and

second of all, at the deposition it was confirmed that any examination of Mr. Tibbitts would be work product on that subject. MR. NORMAND: THE COURT: MR. BRENNAN: So if I were asking -The work product on the issue of damages. Twofold. Yes on damages, and in Because as we will see

particular with respect to Questar.

in a minute, in the deposition Mr. Normand stated on the record that Mr. Tibbitts would not be a witness offered at trial at all on the subject of damages. So there is a very

broad assertion on the issue of damages, and then there is the more narrow ones, for example, I think it would be inappropriate for Mr. Tibbitts to be offered whatsoever on the issue of damages. I'll show the court in a minute the

reference, and also to be asked about Questar in particular given this instruction here. 1746

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MR. NORMAND:

And Mr. Tibbitts will not be testifying That was yesterday's testimony and

on the issue of damages. the day before.

He will be testifying to the nature of the I won't ask him what

discussions with customers.

conclusions he drew from those discussions, whether he concluded from those discussions that SCO had suffered some particular amount of damages. product objection, Your Honor. damages. This is a standard work He was not an expert on

So the questions that went to that issue were not

ones that were appropriate for him. THE COURT: Mr. Brennan, if you are asserting that he

ought not to be allowed to answer any questions about customers that were affected by the Novell statements, um, I think that is overly broad. MR. BRENNAN: Well, perhaps -- I appreciate that and

that is not the purpose of what I wanted. THE COURT: MR. BRENNAN: Then what are we disputing here? That he shouldn't be able to ask him, Because the question put to

first of all, about Questar.

the witness is does SCO contend that Novell did something relative to Questar. that on work product. just -THE COURT: about -1747 Let's leave Questar out. No questions And he was instructed not to answer That is as far as I have gone is

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MR. NORMAND:

Your Honor, that was not an accurate

characterization of either his testimony or the instruction given to him. about Questar. I would ask Mr. Tibbitts two principal things What did you show them, if you can recall, That is it. That is

and what was said, if you can recall.

nothing to do with the instruction I gave at the deposition. MR. BRENNAN: about it. Your Honor, here is the unfair part

It is not relevant if Mr. Tibbitts was asked as

the question says, "is SCO contending that Novell did anything to interfere with Questar." And that basic

question can't be answered because, you see, "that's all part of the ongoing damage analysis, and I would believe that's work product." THE COURT: Mr. Normand, if you ask the questions you

just told me you are going to ask him, does that not then imply that there was an interference with Questar by Novell, a question of which he was not allowed to answer at the deposition? MR. NORMAND: No. But Novell has been entitled to ask

any of our damages experts the conclusions they drew from any work they may have done. THE COURT: That is not my point, Mr. Normand. If I

-- if I am not understanding this, then I want you to tell me where I don't understand it. If you are allowed to ask

Mr. Tibbitts questions about Questar, does that not by 1748

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itself imply to the jury that you are asserting, even though you don't directly say okay what was the extent of the damage, what was the nature of the contract lost, et cetera, does that not imply to the jury that is part of the damage claim in this case? MR. NORMAND: I am -THE COURT: MR. NORMAND: Then why would you ask the question then? Because I was going to say, Your Honor, One of the issues, Just simply asking. I don't think it does and I don't think

I don't think I'm cutting it too thin.

one of the arguments Novell has made is that SCO was not presenting evidence to any potential customers. So part of

what Mr. Tibbitts would speak to, I did speak with these customers, I did present to them support for our position. THE COURT: abstract. Okay. Now you're speaking in the I have been focused

I'm speaking about Questar.

on some deposition testimony where the question was asked of him at the deposition about Questar, you objected and apparently no more questions were asked. MR. NORMAND: No, that is not correct at all. He

testified at length from pages 9 to 16 about everything that he could remember about his discussion with Questar. MR. BRENNAN: Your Honor, the point there is that we Your

were told that there was going to be no contention. Honor, we have, for example, this point is put --

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THE COURT: MR. BRENNAN:

What do you mean no contention? The question again was asked is with

respect to the Questar license, does SCO contend that Novell interfered with that in any way, that it would have been a larger license had Novell not done what it has done and said what it said. Objection to the form. Answer, well I think

that's all part of the ongoing damages analysis, and I believe that is work product. THE COURT: Mr. Normand. have? MR. NORMAND: I may have not if you already have it. I have that whole deposition here,

Did you just give me something that I don't

It is pages 9 to 16 on the issue of Questar in particular, Your Honor. MR. BRENNAN: Your Honor, I think -- I think this

precisely same issue comes into sharp focus on page 20 of the deposition of -- where now SCO moves to the Department of Defense. So the question of Novell's counsel at line

four on page 20, "I take it that the Department of Defense did not take any license -- take a license of any kind? Answer, they did not. Question, does SCO contend that they

would have taken a license if not for Novell's actions? Mr. Normand, I'm going to object on the grounds of work product. There's an objection to the form to the extent

you're asking what a complaint might say or what a pleading 1750

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might say.

But to the extent it goes beyond that, I think Answer, I think that's

we are in the area of work product.

work that we are doing with our experts and the attorneys are involved and so am I, and so I think it's work product." So that is precisely the same issue with another client. THE COURT: MR. NORMAND: Mr. Normand? It is an entirely different issue. The

question is whether as to what Mr. Tibbitts will be testifying to whether Novell has already been given the opportunity to cross-examine him on that subject and they have at length. If I were to finish my questions by asking

Mr. Tibbitts what conclusions have you drawn with respect to the damages that you think SCO suffered, Novell would have an argument. I am not asking him that question. Well, I see here that you, Mr. Brennan or

THE COURT:

whoever is taking the deposition, was allowed to continue to ask questions about the Department of Defense. MR. BRENNAN: That is correct, Your Honor. However,

when they withdraw -- when they won't allow the witness even to answer the questions as to whether there is an intention that Novell did something wrong, they are removing the Department of Defense, they're removing Questar from their pallet of claimed customers who they allege constitute the basis of their damages assertion. We have -- those are two

specific instances where they wouldn't let the witness even 1751

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answer whether there was a contention.

And then as I

mentioned, there is the broader problem, this is found on Page 51 of the deposition, and the context the court certainly could look back at Page 50 where Novell's attorney, at that time it was Mr. Melaugh of the Morrison and Foerster firm, on Page 50 referenced the fact that he was trying to get answers. at Page 51 Line 1. They took a break. Mr. Normand

"We just took a break to talk about how What we

to approach the questions that Mr. Melaugh flagged.

will say is Mr. Tibbitts is not going to be a witness on the issue of damages." MR. NORMAND: THE COURT: Which is a true statement. By that, Mr. Normand, you mean that he is

not going to be a witness who will be asked to quantify the amount of damages, correct? MR. NORMAND: That is correct, Your Honor. And I'm

not even trying to pull a fast one.

I'm not going to ask

him did they suffer some damages that you just don't know how to quantify. He is not here to testify to the issue

that SCO has suffered damages. THE COURT: But you are going to ask him questions

about specific customers that he has knowledge of who he thought would have undertaken a SCO source contract but did not because of the Novell actions. MR. NORMAND: That is correct. He is going to testify 1752

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as a percipient witness.

The objection was to the extent he

was being asked questions beyond that. THE COURT: So the question is whether or not that

constitutes testifying about damages? MR. NORMAND: Well, it is testifying to facts from He is not an expert on He is

which juries can draw inferences. the issue of damages.

That was the objection made.

the general counsel of the company.

He is being deposed.

And now he is being asked well, what do you know about what experts might be doing or what work might be done? objection is he is not testifying about that. So the

He does know

something about it because he has got experts on his team and he speaks with attorneys about it. to testify to that. But he is not going

That is not what he is here for and

that is not what he is here for at trial here today. MR. BRENNAN: The objection was not that it was

subject to expert testimony, the objection was work product. THE COURT: It appears, however, that as to both

Questar and the Department of Defense, despite the objection, you did ask him questions about those two specific customers. So anything he may be testifying to

here today will not be a surprise to you. MR. BRENNAN: It will be a surprise to the extent that

we were told that there was no contention relative to those customers. It will be a surprise to the extent that we were 1753

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told that Mr. Tibbitts would not be testifying as a witness regarding damages. THE COURT: Apparently the two of you had a

misunderstanding about what was meant when Mr. Normand represented that he would not be called as a witness regarding damages. The court will allow questions to be He will not be asked --

asked about specific customers.

allowed to ask or be asked or answer questions about the two specific customers, Questar and Department of Defense beyond those questions that were allowed at the deposition. MR. BRENNAN: Thank you, Your Honor. One other

species and then I think I can dispense with the third species quickly as well. On page number -- well it runs 47 I would like to start with

through 49 of the transcript. Page 47 Line 11.

And the question is, "One of the things

SCO has said in Interrogatory response about damages was that SCO's existing UNIX customers expressed their concerns over Novell's claims and SCO suffered further losses in that business. Do you have any personal knowledge of concerns

expressed by UNIX customers about Novell's claims? Objection to form. Answer, yes, I do. What is that?

Mr. Normand, I'm going to object to that on the grounds of work product." MR. NORMAND: Mr. Tibbitts is not testifying today to

any complaints from existing UNIX customers. 1754

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MR. BRENNAN: THE COURT: MR. BRENNAN:

Okay. All right. And then the last species, Your Honor, I don't

it frankly runs a span of pages 54 through 72.

expect the court at my invitation at least to read all of that. I can highlight -THE COURT: MR. BRENNAN: Can you summarize it? Yes, I will. Over that span,

interspersed between pages 55 through 72 of the deposition, the questioning attorney for Novell, Mr. Melaugh, and that is spelled M-E-L-A-U-G-H, for the benefit of the reporter, asked about item of correspondence that Mr. Tibbitts had sent to Novell. And I think if I show one, that will

illustrate the problem with all of them, Your Honor. THE COURT: MR. BRENNAN: Okay. So perhaps if I could, as an

illustrative exhibit, direct the court's attention to Page 67 at Line 13. Exhibit 271. October 9. And the question is, "This is It's dated Like the

It's been Bates labeled NOV 43173. It's from Mr. Tibbitts to Mr. LaSala.

last letter, it also has some faxed headers at the top which bear different dates." Your Honor, rather than read all of this into the record if I can just jump forward to the stated objection where the question is on Page 68 Line 1. And the second 1755

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paragraph in the first line you see, "We remind you, Novell, that Novell sold the UNIX business, source code and copyrights to SCO for approximately $150,000,000. you arrive at that figure?" How do

Mr. Normand, well, I think

that's the subject of the same work product objection in that however Mr. Tibbitts arrived at that figure, whether it was the result of discussions with outside counsel, whether it was a result of his review of, for example, the APA, whether it was the result of his discussions with others regarding the APA, with respect to any of those sources the number reflects his mental impressions, his analysis, his organization of information. And I think therefore his

basis for that number is his -- reflects his work product. Mr. Melaugh, I take it you are directing him not to answer? Mr. Normand, correct. Mr. Melaugh, are you taking that -I wasn't involved

answer, I think it is privileged, also. in the transaction."

Now that has to do with the letter that Mr. Tibbitts sent to Mr. LaSala of Novell. We have that same very sort

of request and instruction on work product grounds that in fact not only that letter, but a subsequent letter sent by Mr. Tibbitts to Mr. LaSala on October 9th, 2003. covered in pages 67 through 68. That is

And we have almost

identically the same exchange with respect to a letter that Mr. Tibbitts sent to Mr. LaSala on February 5th, 2004 and 1756

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that colloquy spans pages 69 through 72. Your Honor -THE COURT:

The problem here,

Mr. Brennan, may I interrupt?

So are you

then requesting that Mr. Normand not be permitted to introduce those as exhibits through Mr. Tibbitts? MR. BRENNAN: THE COURT: MR. NORMAND: Um -Or that they be -- that those portions -Your Honor, I'm sorry to jump in but I The only letter that Mr. Brennan

think I can shortcut this.

that has referred to that I would use is marked as SCO Exhibit 110. That is the October 9th letter. My

instruction was clear and therefore I should not be entitled to show the jury or ask Mr. Tibbitts about the sentence of this letter that refers to the $150,000,000 figure. propose -THE COURT: intend to use? MR. NORMAND: THE COURT: MR. NORMAND: THE COURT: I would use the letter, not that line. I'm sorry, the other two letters? The other two letters I'm not using. You're not going to use. As to this But the other two letters you do not I would

letter if that part is redacted, and there is no question about that figure, are you all right? MR. BRENNAN: You're all right?

Yes, but I think there is also a

provision on the second page where -1757

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MR. NORMAND:

Mr. Brennan is correct and this is not It is a paragraph

one that I would have Mr. Tibbitts read.

-- would you like me to read it to Your Honor? THE COURT: redacted? MR. NORMAND: THE COURT: MR. BRENNAN: Thank you. THE COURT: MR. BRENNAN: discussion. THE COURT: It is important. I understand. Anything All right. I appreciate your indulgence with the It is, yeah. Then let's just have it redacted. That solves our problems, Your Honor. Is it something that you can have

else before we bring the jury in? MR. SINGER: MR. NORMAND: THE COURT: No, Your Honor. No, Your Honor. Ms. Malley. Mr. Nagle, I hope this makes

you happy that you are an engineer and not an attorney. THE WITNESS: Yes, Your Honor. I assure you we have

equally Archean discussions in our field. THE COURT: THE CLERK: I'm sure. All rise for the jury.

(Whereupon, the jury returned to the courtroom.) THE COURT: Go ahead, Mr. Jacobs.

1758

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 BY MR. JACOBS: Q.

CROSS-EXAMINATION

Good afternoon, Mr. Nagle.

I'm Michael Jacobs

one of the counsel for Novell. You discussed with Mr. Normand your employment history and the various roles that you had in the course of your tenure with various companies you worked with. I would like

to ask you about one of the roles that you have played with SCO, which is your role in the UnitedLinux partnership. MR. NORMAND: Your Honor, this is both beyond the

scope of my direct and pertains to an issue that is stayed with respect to this case. I am hesitant to say more

without asking for a side bar. MR. JACOBS: I will not venture into stayed territory,

Your Honor, and he was asked about whether his jobs had remained the same through his various times in the UNIX business. And this is a distinct role he played. Your Honor, I won't belabor the point

MR. NORMAND:

but it has nothing to do with the subject matter of my direct. THE COURT: counsel. (Whereupon, a side bar conference was held.) MR. NORMAND: THE COURT: We didn't make it far, did we. We did not get very far. 1759 Well, maybe we better have a side bar,

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MR. JACOBS: UnitedLinux. UnitedLinux.

This witness was the representative on

I would like to ask if SCO was a partner in He was the representative that SCO actually

released SCO Linux 4 powered by UnitedLinux in one of the issues that arose in the community around SCO source that relate. I won't ask the ultimate question of this witness,

but one of the issues that relates to SCO source is that in connection with SuSE, UnitedLinux was cited on the e-mail to him as one of the reasons people didn't take SCO source licenses. That is where I would like to go. Putting aside for the moment the

MR. NORMAND:

question of any relevance, perhaps they could get that in in their case but that has nothing to do with what I asked Mr. Nagle about. THE COURT: MR. JACOBS: time in 1995. THE COURT: Mr. Jacobs, it is really a stretch to say That is my point. He asked him about his various roles. Your Honor, he just confined him to his

that they saw him asking a very general question about his background to say that he opened this door. And I just

don't think in good conscious I can allow you to go there with this witness. MR. JACOBS: MR. NORMAND: THE COURT: Thank you, Your Honor. Thank you, Your Honor. We're not done. 1760

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MR. JACOBS:

The only thing then that I need to do, I

don't want to make him subject to recall, is to get him to authenticate this or have Mr. Normand stipulate that I can bring it in without his authentication. MR. NORMAND: Sorry.

But you're not going to ask him about

You want to get it in through him? MR. JACOBS: Or stipulate it is admissible without him SCO received -- this is an

being here to authenticate it. e-mail that SCO received. MR. NORMAND: THE COURT: MR. JACOBS: THE COURT: MR. JACOBS: THE COURT:

That is fine.

We'll stipulate to that.

Let me ask you this. C-14. Are you going to recall him? I don't want to. Well, I don't either. And so, you know, I

would revisit this ruling if you are going to tell me that you're going to recall him to get this testimony in any way. MR. JACOBS: I would recall him to get in about ten

minutes of testimony on UnitedLinux in our case in chief. MR. NORMAND: I took it from my comments that they had

some other way to speak to this issue of UnitedLinux in their case. We wanted to reserve our rights honestly If we have to pull him back,

whether it is relevant at all.

obviously, that is a terrible result but this is springing up at the last second. They have never indicated they 1761

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wanted to use him as a witness in their case. THE COURT: I would have to -- I mean the argument

would be that they're bringing him back as a rebuttal witness. Ultimately, they will recall him and I would have

to allow him to be recalled. MR. NORMAND: MR. JACOBS: Honor. THE COURT: There are much trickier things that have As a rebuttal witness? One, this will take five minutes, Your

occurred in this trial than that. MR. NORMAND: THE COURT: MR. NORMAND: THE COURT: That is the standard we're using? Yes. He can ask his questions. You raised the bar. If you want to accept

that I think it would be more efficient. MR. NORMAND: THE COURT: Okay, very good. All right.

(Whereupon, the side bar conference concluded.) THE COURT: however. Q. (By Mr. Jacobs) Mr. Nagle, you were SCO's I will hold you to the five minutes,

representative to the UnitedLinux consortium; correct? A. Q. all about? 1762 I was. And can you describe briefly what UnitedLinux was

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A.

There were four companies around the world who

consolidated their resources to create a distribution of Linux that they would make available in the market. Q. And SCO was one of the partners in that

consortium; correct? A. It was. When it was first started it was Caldera

that was the partner. Q. A. Same company, different name? Correct. What time frame are we looking at? What time frame are we looking

THE COURT: Q.

(By Mr. Jacobs)

A. Q.

2001, 2002, I believe. And, in fact, in November of 2002, SCO released

SCO Linux 4 powered by UnitedLinux, correct, Mr. Nagle? A. Q. Yes. Let me show you an exhibit marked as I11. Um,

I11 is a press release from SCO, correct, Mr. Nagle? A. Yes. I offer I11 into evidence, Your Honor. No objection, Your Honor. It will be admitted.

MR. JACOBS: MR. NORMAND: THE COURT:

(Whereupon, Defendant's Exhibit I11 was received into evidence.) Q. (By Mr. Jacobs) So at this point in time, 1763

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November 19, 2002, Mr. Nagle, SCO is part of the UnitedLinux consortium and releasing a version of Linux; correct? A. Q. Yes. And one of the goals of the UnitedLinux

consortium was in fact to create an enterprise suitable version of the Linux Operating System; correct? A. Q. Yes. For example, and SCO says, for example, in the

press release, um, that it is -- that this version of the Linux Operating System in the second line, Mr. Lee, "is a high-quality Linux Operating System designed for mission-critical business applications, with guaranteed stability, security and worldwide support from SCO." see that? THE COURT: MR. NORMAND: Mr. Normand? Your Honor, can I just have a standing Do you

objection to relevance for this question and then the next three and a half minutes? THE COURT: THE WITNESS: Q. Yes. Yes, I see that.

(By Mr. Jacobs) So at this point in time, SCO is

offering an enterprise ready version of Linux that it has been created with the assistance of the partners and with the assistance of the UnitedLinux consortium? A. Yes. 1764

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Q.

Now, SuSE was one of the members of the

UnitedLinux consortium; correct? A. Q. Yes. And just to get us all on the same chronology,

ultimately SuSE will be purchased at the end of 2003 by Novell, correct? A. Q. Yes. So about a year after this release, Novell will

purchase the SuSE company, correct? A. Q. Yes. And then Novell will have a distribution of Linux

from SuSE, correct? A. Q. Yes. Okay. So I want to now go back in time just a C14, Your

little bit and show you one more document here. Honor. MR. NORMAND:

Same objection as to relevance, Your

Honor, but pursuant to the discussion. THE COURT: Mr. Normand. Q. All right. The objection is noted,

Thank you. Mr. Nagle, C14 is an e-mail from

(By Mr. Jacobs)

you dated May 8th, 2003? A. I see that. I offer C14 into evidence, Your Honor. It has been accepted. 1765

MR. JACOBS: THE COURT:

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

Q. statement.

(By Mr. Jacobs)

Mr. Nagle, you were forwarding a

Why don't you go down to the second paragraph.

You were forwarding to others a statement that had been issued by SuSE, correct? A. Q. So it appears. And in that statement, SuSE was reacting to the If you look at the first

SCO source campaign, correct? paragraph. A. Q. A. Q. It appears so. In --

The context seems to suggest that it was. In the first paragraph it says, "So far, SuSE

Linux isn't losing any sleep over a legal battle brewing between IBM and the SCO Group." A. Q. I do. So now back to the second paragraph. SuSE is, in Do you see that?

this statement, it is reassuring its Linux customers that quote, "they have nothing to worry about because the company has a contractual agreement with SCO within the framework of the UnitedLinux initiative." A. Q. I do. And then the statement of assurance goes on to Do you see that?

say, "we can say today with assurance that neither SuSE nor its customers need to be concerned about facing any demands from SCO." Do you see that? 1766

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 SuSE?

A. Q.

I do. And isn't it true, Mr. Nagle, that one of the

issues in the marketplace for SCO source licenses was the question arising out of the UnitedLinux agreement and whether the UnitedLinux agreement meant that, for example, SuSE and its customers were immune from any claim from SCO? A. I am not sure I can cite firsthand knowledge of

that issue in the marketplace but -Q. You are aware that the statement was made by

A. Q. A. Q. A. Q. A.

I'm aware, yes. And it got wide publicity, correct, Infoworld? I can't confirm that. Do you see that it is from Infoworld? I do. Infoworld is a very widely circulated journal? I accept that. Time is up, Mr. Jacobs. And I'm done, Your Honor. Let me now bring you back to I would

THE COURT: MR. JACOBS: Q.

(By Mr. Jacobs)

1995 and 1996 and your work on the transition plan. like to show you SCO Exhibit 38. SCO Exhibit 38 is a

transition plan related document from the time of the APA? A. Q. Yes. And that is your signature, handwriting in the 1767

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upper right hand, corner? A. Q. Yes. I will represent to you, sir, that the boxing is

-- that is, the boxes around the various portions of this document were placed on the document by SCO and are not part of the original exhibit. So this document is describing some of the activities that are underway through transition of business that is going to Santa Cruz to Santa Cruz, correct? A. Q. I'm sorry. Say that again. This is a document

It wasn't very well done.

that is describing some of the activities that were underway to effectuate the transition of business to Santa Cruz, correct? A. Q. From Novell, yes. And in particular, a lot of the activity had to

do with, as I think you discussed with Mr. Normand, transitioning source code, correct? A. Q. Correct. I would like to ask you to look at, it is the

second to the last page, it has got a stamp in the lower right hand corner of 2833. THE COURT: MR. JACOBS: Are you going to offer this document? I'm sorry, Your Honor, absolutely. SCO

Exhibit 38 offered into evidence. 1768

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MR. NORMAND: THE COURT:

No objection, Your Honor. It will be admitted.

(Whereupon, Plaintiff's Exhibit 38 was received into evidence.) Q. (By Mr. Jacobs) Did you see in the box around

the lower third of the -- I'm sorry, the end of the top third of the page there is a box, a box added by SCO as part of the document process around it, "Appendix: property transfer plan." A. Q. I see that. Could you explain what is going on in the plan Intellectual

underneath that box? A. Yes. This describes the activities that were

going to go on to transfer certain intellectual property from the Novell source code archives to the Santa Cruz source code archives. Q. So in your answer, sir, you embrace the real What does the word intellectual

focus of my question.

property refer to there? A. Q. It refers to the source code, it appears. And isn't it true, sir, that sometimes when

people use this phrase, intellectual property, they're using it to refer in some loose sense to technology or the intellectual assets of the company and not necessarily to patents, copyrights or trademarks? 1769

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A.

Are you asking for a layman's interpretation of

that phrase? Q. A. Precisely. It can be used in lots of different ways. That

is why there are intellectual property attorneys. Q. This document evidences a lay person's use of

intellectual property when it refers to source code, correct? A. Q. Yes. Let's talk about copyright notices, sir. Isn't

it true that practices with respect to copyright notices in the UNIX world were well-established prior to the asset purchase agreement? A. I really can't speak to that. I can tell you

that the copyright notice practices within the companies that I worked for were fairly well-established. rest of the UNIX world, um, not my purview. Q. Isn't it true, sir, that the copyright notice Around the

practices were governed by the AT&T forum dating back to the old UNIX days of the license agreement, to be specific, the sublicensing agreement? A. I am not aware of any language in the

sublicensing agreement that specified specifically the form of copyright notices that needed to be in the source code. Q. So, um, I didn't mean that as a trick question, 1770

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sir.

I have the agreement in front of me.

So let's take a

look at E1, please.

I believe it is in evidence already.

And in particular let's look at the top -THE COURT: MR. JACOBS: Which document is this? E1 is the AT&T Technologies sublicensing

agreement with, in this case, IBM. THE COURT: MR. JACOBS: MR. NORMAND: THE COURT: MR. NORMAND: E1 is not yet admitted. I offer E1 into evidence. No objection. Mr. Normand, I didn't hear you. No objection. I thought this exhibit

was actually already in. THE COURT: admitted. (Whereupon, Defendant's Exhibit E1 was received into evidence.) MR. NORMAND: I guess. It is in evidence as a different number, E1 is not, but it is now. It will be

So no objection. It could be in as a Plaintiff's Exhibit

THE COURT: then? MR. NORMAND: THE COURT: MR. JACOBS: Q.

It is, Your Honor. All right. I apologize, Your Honor. So, sir, I will focus you on the And subparagraph B turns 1771

(By Mr. Jacobs)

top of Page 5 of this agreement.

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

out to be in Section 2.08 which is on the previous page. Why don't I give you my copy so you will have the actual document. B, Mr. Lee. The license agreement says, "Each portion of a sublicensed product shall include an appropriate copyright notice. Such copyright notice may be the copyright notice It will make it easier. Highlight subparagraph

or notices appearing in or on the corresponding portions of the Software Product on which such sublicensed product is based or, if copyrightable changes are made in developing such sublicensed product, a copyright notice identifying the owner of such changes." A. Q. to parse. I do. It is a little -- the language is a little hard So let me see if I can simplify it and see if Do you see that?

this is consistent with your recollection of the actual practices in the companies in which you worked. Wasn't it the case that when -- in the companies in which you worked, if a change was made or an addition was made in the source code, the copyright notice in that portion of the source code would be updated to reflect that the company making that change was the copyright holder? A. If it was the case that we made changes in our

source code, in our source code database, based on newly received code from a third-party in which that third-party 1772

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owned copyright, it is true that we would have put a copyright notice into the source code to reflect that ownership. That was a common practice with hardware drivers

and other such software. Q. And with respect to the code that say Santa Cruz, It has been

Santa Cruz -- actually let me back up a second.

15 years now since Santa Cruz and then SCO have been the companies that have evolved UnixWare, correct? A. Q. Yes. What is your estimate of the amount of code that

Santa Cruz and SCO have contributed to the UnixWare product? A. Q. I really don't have an estimate. Would it surprise you if it is in the millions of

lines of code? A. Q. A. Q. Certainly not. It would not surprise you? Certainly not. Would it surprise you if around 1995 there were

roughly seven million lines of code in UnixWare and now there are 14 million lines of code? A. Q. It wouldn't surprise me. So I want you to assume with me that in all of

those millions of lines of code that Santa Cruz has written or SCO has written in UnixWare, there is no dispute about copyright ownership because that post dates the asset 1773

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purchase agreement? minute? A. Q. Okay.

Can you assume that with me for a

Isn't it the case that in those lines of code,

one would expect to see a Santa Cruz or a SCO copyright notice? A. No, sir. Um, the copyrights that we had -- that

we added to our source code products were added only at the time that we published the source code products. um, when we created a source code product that was associated with, for example, UnixWare 2.1, the act of creating that source code product inserted copyright notices into all of the code because we owned the copyrights in all of the code. We did not as a matter of engineering and So that,

development practice on a daily basis add new copyrights when we the owner of the copyrights added code to the databases. Um, what I said in my earlier testimony is that when we received code from a third-party, and the third-party owned the copyright, we felt obliged to record that copyright ownership. But since we owned all of the

copyrights in the source in the database, except where it was already noted that a third-party owned the copyright, there was no need to add the copyright notice on a daily basis, only when we published it and that is when we did it. 1774

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Q.

So what is the latest version that you published,

quote published, unquote? A. Q. UnixWare? A. Q. Well, there certainly is, yes. That you have gone in and you have added SCO UnixWare 714. So there is a 714 version of the source code for

copyright notices to the portions that you have modified, correct? A. Well, I don't -- I don't recall that we actually If we issued

issued a source code product for UnixWare 714.

a source code product for 714, then we added a copyright notice on every file since we own the source to all of the source to the source to UnixWare. Q. Let's go back to 1995 and 1996. In your

testimony on direct with Mr. Normand, you explained that the copyright notice was changed in UnixWare 2.1; correct? A. Q. Yes. And that was the then current version that Santa

Cruz was going to release after the asset purchase agreement? A. Q. Yes. You did not go back and change the copyright

notices at that point in time as to UnixWare 2.0, UnixWare 1.0, SVRX -- no, sorry, System V Release 4.2MP; correct? 1775

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A. and dusted.

No, we didn't.

These products were already done

They were on the manufacturing shelf, masters It was our understanding

were available to be duplicated.

that we could continue to ship those products with copyright notices as they existed in those products at the time that these were mastered. It was our understanding that the

actual establishment of the ownership of the copyright in those codes was established by the legal agreements, not the notices, notices that existed in those old products. Q. All right. So it just didn't seem that important

at the time to adjust the copyright notices in the older versions of UNIX or UnixWare because the agreement was controlling, correct? A. Q. A. Q. That was our understanding at the time. And that -Continues to be my understanding. Okay, perfect. So let me ask you -- ask you

about the tree and the trunk of the tree and let's see if we can help the jury understand how this works. I am not a very good drawer -- artist, Mr. Nagle, but I hope this serves the purpose. So I think you were

explaining that UnixWare System V and, in particular, this last System V release, 4.2MP, was the guts of UnixWare, correct? A. And 4.2MP was the basis for UnixWare 2 and 1776

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UnixWare 2.1. Q.

For UnixWare 1, it was System V release 4.2.

And in UnixWare, there is some other --

importantly there is some other components that are NetWare components, correct? A. were fewer. introduced. Q. And then ultimately, just to avoid any confusion, There are NetWare components in UnixWare 2, there In UnixWare 2.1, there were more that were

there was an agreement between Santa Cruz and Novell some years later that meant that NetWare didn't need to be included any longer, correct? A. Q. I was not party to that, but I did hear about it. But in the relevant time period that we're

focusing on here around the time of the asset purchase agreement, UnixWare consists of UNIX System V code, specifically UnixWare 2.1 consists of System V code, some NetWare code, some additional code for the UnixWare release that has been written or is being written as of the time of the asset purchase agreement, correct? A. Yes. If it -- yes, it includes at least that.

There were other -- there was other third-party code that was a part of SVR 4.2MP. NetWare is not the only

third-party that had code in the UnixWare base. Q. Great. And can the jury see my wonderful art work? In particular, what we were focusing on was UnixWare 1777

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2.1 in your direct testimony, correct? A. Q. correct? A. Q. A. Q. Yes. Now, UnixWare was a flavor of UNIX, correct? Yes. And there were other flavors of UNIX such as IBM Yes. And that got a copyright Santa Cruz notice,

AIX, HP UX, correct? A. Q. Yes. There are -- I think I heard somewhere that there

are thousands of flavors; is that correct? A. I can't confirm or deny. I wouldn't be

surprised, I guess. Q. A. Q. There are many? There are many. So on the would you be surprised line of

questioning, would it surprise you if IBM had registered copyrights to its AIX flavor of UNIX? A. Q. No. Would it surprise you if IBM were to distribute It used

say a CD, if they were in that business with AIX? to be out so I could hold it up. MR. NORMAND: Q. The witness has it.

(By Mr. Jacobs)

If they were to distribute a CD 1778

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and put an IBM copyright notice on their CD of the AIX? A. My understanding of the purpose of a copyright

notice on the front of a product box is that it says to the customer that purchases that product if you have any questions about the copyrights on this -- in this product, you come to me to see -- to get your answers. Um, it makes

no claim, as far as I know, to assert that the copyright notice on the front of the box overrides the legal agreements that establish copyright ownership. Q. So if there was a copyright IBM or copyright

registration by IBM on AIX, it wouldn't answer the question who owns UNIX System V, correct? A. Q. It would not. In fact, you would not understand it -- you would

not understand IBM to be making a claim of ownership of UNIX System V merely by putting a copyright notice on the box of AIX? A. Um, I would not. I would assume that they would

respect the legal ownership of the underlying copyrights as established by the appropriate agreements. MR. JACOBS: THE COURT: I have no further questions, sir. Mr. Normand? REDIRECT EXAMINATION BY MR. NORMAND: Q. Mr. Calvin, could you pull up C14 and then could 1779

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you pull up the middle paragraph for the witness and the jury. Mr. Nagle, do you recall being asked about UnitedLinux? A. Q. I do. Do you see the line five or six lines down that

says, "SCO, which owns the copyright to UNIX"? A. Q. I do. Is that statement consistent with your

understanding of SCO's ownership rights and Linux copyright? A. Q. Yes, it is. Did members of UnitedLinux ask SCO to contribute

UNIX intellectual property to the undertaking? A. They did. They did during the negotiation of the

agreements, and the CEO of Caldera, Ransom Love at time, declined. There was a very short specific list of

technology that each of the companies contributed to the consortium. We did contribute some, but none of it was the

core technology that was driving the revenues for our company at the time. Q. A. Q. Was Novell a member of UnitedLinux? Only after they purchased SuSE. And before that time, did anyone ask Novell to

contribute any UNIX intellectual property to the undertaking? 1780

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A. Q.

No. Do you recall being asked some questions about

changes that were made to copyright notices in 1995? A. Q. Yes. Did Novell change the copyright notices on their

existing version of UnixWare even before SCO had made any changes to it? A. No. Because the changes in copyrights were

always done in the last month prior to ship. Q. And is it your understanding today, that Novell

engineers in 1995 changed copyright notices on UNIX code that Novell is now claiming to own copyrights to? A. Q. Yes, that is my understanding. And you directed that undertaking, that the

engineers would make those changes, you were part of that? A. I was part of the team that directed that I was -- at the time I was a Novell employee.

undertaking. Q.

Now you were shown the trunk of a tree and asked Do you recall that?

about thousands of UNIX flavors. A. Q. drawings. I do.

Let me compete with Mr. Jacobs on terrible It is all right, Mr. Jacobs. You will recall

questions I asked you about the relationship between UnixWare, your earlier versions, and the previous version of UNIX which I think you said was 4.2MP; is that right? 1781

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A. correct. Q.

UnixWare 2 is derived from 4.2MP, that is

Now, I know you probably can't quantify it, but

how close are those two products in terms of overlapping source code? A. Q. Very, very close. Over 90, 95 percent.

And you saw that Mr. Jacobs had put up a trunk Do you recall that?

and then a branch. A. Q. A. Q. A. Q. A. Q. Yes.

And the trunk was System V? Yes. And the branch over here was UnixWare? Yes. Do you recall that? Yes. Do you think that is a fair description of the

relationship between System V and UnixWare? A. No. I think you would have to recognize that

System V reached into all of the branches of that tree that he drew and into many others. Q. drawing. Now, we have confirmed that is a terrible However, do you see the reference in the middle

circle the SVR5 and UNIX System V 4.2MP? A. Q. I do. And you see that I have attempted to draw a 1782

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circle around that and I have labeled that UnixWare? A. precise. Q. Okay. And do you think that this would be an If you would label that 2.0, we're slightly more

accurate depiction of the relationship between UnixWare and the prior version of the UNIX System V 4.2MP? A. Q. To a first approximation I would say yes, close. When you say to a first approximation, just

explain to the jury why you think to a first approximation this is accurate? A. What does this represent?

Um, System V release 4.2MP was a release of UNIX

that was under development prior to the acquisition of the UNIX business by Novell. We were, at the time, we were UNIX

System Labs, we went through a lot of company name changes, um, and we had developed a version of UNIX that we labeled System V release 4.2 and we were intending to go to market with that as a binary product and at the time we saw our chief competitor to be The Santa Cruz Operation. That was

then seized on by Novell as they took control of the company assets and they said well we want to go to market with this under a different brand. as UnixWare 1. Q. A. Q. Now Mr. Nagle -Yeah. -- in terms of this relationship between these 1783 We want to go to market with this

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

products, let me just ask you this.

If Novell owned the

copyrights to the System V, and they could do whatever they wanted with all of these copyrights to System V, the old version of UNIX, what would be left of UnixWare? A. Q. A. Q. A. Well, very little. Would it work? It wouldn't work. Why wouldn't it work? It would be -- it would be the equivalent of

having purchased a car from someone and then years later they come to your front door and say give me the engine for my car. The engine to UNIX is the kernel, it is the core of

the operating system that actually talks to the hardware. That it tells how to reach into memory, how to -- how to read or write from the disk. All of that technology, the

basis for that technology, reaches back to the development of 4.2MP that was done at UNIX System Laboratories. It was

brought forward into UnixWare 2, it was brought forward into UnixWare 2.1 and it is still there. Q. Is it true that if you took the old UNIX pre-1995

UNIX out of UnixWare 7? A. It wouldn't work. No further questions, Your Honor.

MR. NORMAND: // //

1784

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 BY MR. JACOBS: Q.

RECROSS-EXAMINATION

Mr. Nagle, Mr. Normand asked you about copyright

ownership and then switched to taking the code out of UnixWare, taking the System V code out of UnixWare? A. Q. Yes. Did you understand that copyright ownership means

take the code out? A. Copyright ownership confers the right to do with

the code whatever the copyright owner chooses to do with code. And therefore they would have the right to direct

somebody that is using the code to do whatever they want with it. Q. SCO claims to own the UNIX System V copyrights.

Does that mean SCO has the right to tell HP take out the System V code from your product? A. SCO has a license agreement with HP that sets the And so long as HP

terms under which HP can use that code.

is in conformance with this license, then the rights that SCO has to direct HP to do anything are quite limited. Q. You're aware that SCO issued a press release in

2007 in which it said, even if we don't own the copyrights, we're fine with our existing products and they can go -- we can continue to support them, made a securities filing to that effect? 1785

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A.

Um -Your Honor, this is beyond the scope. I don't remember -- well -You're not familiar with that?

MR. NORMAND: THE WITNESS: Q. A. Q.

(By Mr. Jacobs)

I'm not familiar with it. And you do know that the asset purchase agreement

has a lot -- has a number of provisions governing what Santa Cruz was to do with the code such as the development of the AIX product, the development of UnixWare 2.1, correct? A. Yes. Okay. Thank you, sir.

MR. JACOBS: THE COURT: MR. NORMAND: THE COURT: MR. JACOBS: THE COURT:

May this witness be excused? Yes, he may. Mr. Jacobs? I'm sorry. All right. Yes, Your Honor. Mr. Nagle, that means you do

not need to worry about being recalled, but I would instruct you not to discuss your testimony with any other witnesses in this case or in the presence of any other witness nor communicate your testimony in any way to anyone else. right? THE WITNESS: THE COURT: Thank you. Thank you very much. Ladies and Because of its All

gentlemen, we will recess for the weekend.

importance, I'm going to again read to you the instruction 1786

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that was given to you at the very beginning of this case. First, I instruct you that during the trial you are not to discuss the case with anyone, including fellow jurors, or permit anyone to discuss it with you. Until you

retire to the jury room at the end of the case to deliberate on your verdict, you simply are not to talk about this case. Not talking about this case means not talking about it in anyway including by internet, e-mail, text message and instant communication devices or services such as cell phones, blackberries, I-phones or social networking websites including Facebook, Twitter, et cetera. Second, you are not to read or listen to anything touching on this case in any way. Do not watch or listen to

any news reports concerning this trial on television or on the radio. Do not read any news accounts of this trial in

the newspaper or on the internet or on any instant communication device including, again, Facebook, Twitter and so on. If anyone should try to talk to you about it, bring

it to my attention immediately. Third, do not do any research or make any investigation about the case on your own. Specifically

yesterday you were instructed to that and that means that are you not to be doing Googleing or anything of that sort, any type of research on your own regarding this case. And finally, though you have now heard two weeks of 1787

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evidence, the bulk of the plaintiff's case has now been presented. It would be inappropriate, unwise and wrong for You have yet to hear

any of you to be making up your mind.

the remainder of the plaintiff's case, you have yet to hear the defendant's case. And most importantly, you have yet to

be instructed on the law that you are required to apply to the facts that you have been hearing over the last two weeks. So endure another week. When have heard everything,

when you have been instructed and you have heard the closing arguments, you begin your deliberations, and then and only then should you be making up your mind about this case. I sincerely hope you have a nice weekend. see you here Monday morning at 8:30. THE CLERK: Ms. Malley. And we'll

All rise for the jury, please.

(Whereupon, the jury left the courtroom.) THE COURT: MR. BRENNAN: MR. SINGER: THE COURT: also. Do you have anything before we recess? Not from Novell, Your Honor. Not from us, Your Honor. I hope all of you have a nice weekend

We do have hearings this afternoon, so if you would

please clear the desks. MR. SINGER: We will. The trial

(Whereupon, court adjourned for the day.

will resume on Monday, March 22, 2010 at 8:30 a.m.) 1788