SCO Grp v. Novell Inc

Filing 867

NOTICE OF FILING OF OFFICIAL TRANSCRIPT for dates of March 24, 2010-Jury Trial before Judge Ted Stewart, re 567 Notice of Appeal,. Court Reporter/Transcriber Patti Walker, CSR, RPR, CP, Telephone number [phone]. NOTICE RE REDACTION OF TRANSCRIPTS: Within 7 business days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the parties intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy and forms are located on the court's website at www.utd.uscourts.gov. Please read this policy carefully. If no Notice of Intent to Redact is filed within the allotted time, this transcript will be made electronically available on the date set forth below. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/10/2010. Redacted Transcript Deadline set for 5/20/2010. Release of Transcript Restriction set for 7/19/2010. (Attachments: # 1 Part Two, # 2 Part Three)(jmr) Modified by removing restricted text on 7/19/2010 (rks).

SCO Grp v. Novell Inc

Doc. 867

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

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

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

NOVELL, INC., a Delaware corporation, Defendant.

_________________________________) AND RELATED COUNTERCLAIMS. )

_________________________________)

BEFORE THE HONORABLE TED STEWART --------------------------------March 24, 2010 Jury Trial

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

Dockets.Justia.com

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

APPEARANCES

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

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

94105

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Michael DeFazio Tor Braham Jack Messman Witness Greg Jones

INDEX Examination By Mr. Acker Mr. Normand Mr. Acker Mr. Normand Mr. Acker Mr. Singer Mr. Acker Mr. Singer (Deposition) Mr. Jacobs Mr. Singer (Direct) (Cross) (Direct) (Cross) (Redirect) (Recross) (Further Redirect) (Direct) (Cross) (Redirect) PAGE 2207 2234 2248 2250 2251 2252 2281 2290 2300 2325 2368

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EXHIBITS RECEIVED INTO EVIDENCE: Plaintiff's: 756 755 552 2230 2244 2272

Defendant's: V-12 U-45 H-2 U-3 V-3 D-4 Y-3 2219 2229 2330 2348 2354 2360 2362

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SALT LAKE CITY, UTAH; WEDNESDAY, MARCH 24, 2010; 8:30 A.M. PROCEEDINGS THE COURT: Good morning.

Overnight Novell filed a motion to strike testimony of damages after June 9th, 2004. The Court will

deny the motion based upon the prior rulings of the Court and the conclusion of the Court that the defendants are, in fact, confusing intent and damages. denied. When will Tor Braham be testifying? MR. JACOBS: He will be at the end of the day Therefore, it will be

today, Your Honor, or first thing tomorrow. THE COURT: Would a solution to this dispute be to

make him available for a deposition today? MR. JACOBS: I think you're asking me if it's

feasible for us to produce him for a deposition today, and the answer is yes. THE COURT: MR. SINGER: Mr. Singer. I think that under the circumstances

that would probably be the most equitable way to deal with these issues. THE COURT: better do. Mr. Jacobs, I think that's what we

It is a confusing issue, but I think there is

merit to your argument that a decision by plaintiff not to depose him was a part of their strategy and they ought not

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to be rewarded for it.

But, on the other hand, I am

conscious of the rather limited privilege exercised by the Wilson Sonsini law firm representative, and if we can solve the problem by making him available for a brief deposition, then I would like to request that that take place. MR. JACOBS: Your Honor, given everything that's

going on, let me urge the briefer side of brief. THE COURT: It would have to be brief. We're

talking really about, in my judgment, one issue, and that was the question that was posed to Mr. Alter about whether or not any communication had gone to anyone at Novell other than Mr. Bradford as to the retaining of the UNIX copyrights. That was the question that was posed at the

deposition that a privilege was then exercised. I'm not saying that the deposition has to be confined to that alone, but it seems to me that that is the focal point of the dispute and that's where the deposition ought to be begin and ought not to extend much beyond. MR. JACOBS: Let me suggest an hour, Your Honor.

I think that would be plenty to cover the topics. MR. SINGER: Your Honor, may I note that, in

connection with this issue, last night Novell served -- I don't know the exact amount, these were served in the middle of the night -- probably somewhere around 30 documents that previously were withheld on the grounds of privilege. We

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haven't even had time to properly review those, but we believe that, of course, is also a proper subject to this deposition. And we think that it wouldn't certainly take

more than 60 or 90 minutes at the outmost, given that's the ruling. THE COURT: Novell has asserted from the beginning

and I think they run the risk now of being shown to be not playing fair, it's not the fact that those documents that were withheld -- and I was told there were a hundred, at least the filings would indicate there were a hundred -- are not relevant. And, you know, if -- well, I would say a All right, counsel? Thank you, Your Honor. I understand, Your Honor. Your Honor, just for the record, I'm It's one red well of documents. That would not appear to be much if it

one-hour deposition. MR. JACOBS: MR. SINGER: MR. JACOBS: holding up the file. THE COURT:

weren't for the fact that we're only two days, technically, away from the end of this trial. of that. Counsel, you both met the deadline, but just barely. I was hoping you would be 30 seconds late and I The So they look big in light

then would have disregarded it, but it didn't happen.

Court will try to get a revised package to you by tomorrow morning, and then we'll have a jury instruction conference

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tomorrow afternoon at three o'clock where you can make your record if you have opposition to any of the instructions after we've looked at what you have filed here today. right. All

It may be that -- well, we'll just deal with that at

three o'clock tomorrow. Any problem? MR. JACOBS: THE COURT: with then? MR. JACOBS: Briefly, Your Honor. Just to make No, Your Honor. Is there anything else we need to deal

sure we're all on the same page on time, we've reached agreement with SCO that there is four hours and seven minutes remaining for Novell's presentation of its case and three hours and 13 minutes for SCO time at the podium. THE COURT: stipulated times? MR. NORMAND: We're splitting the difference All right. You say those are

between the parties' inexplicable differences of time. THE COURT: What were the extent of the

inexplicable differences? MR. NORMAND: We had us at 35 minutes where Novell To be fair, I think

had us at one hour and 15 minutes.

there may be confusion as to how side-bars were being counted and whatnot, so we agreed to split the difference. THE COURT: All right. Thank you.

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Mr. Acker. MR. ACKER: Good morning, Your Honor.

With respect to Mr. Messman, the Court will recall -- and this has to do with time. The Court will

recall that the jury has heard lengthy deposition clips from Mr. Messman, and we had agreement we would bring him live. Given the time restraints and the way the evidence has come in, Novell is not seeking to put Mr. Messman on, simply producing him because SCO has indicated they want him. However, I do have a transcript of the depo clips that were played. SCO put on almost 50 minutes of his It's our

testimony, and we countered with 19 minutes.

position that when Mr. Messman testifies today, the areas that they have inquired in during the deposition should not be resewed during the examination of Mr. Messman today. Those areas included his background, time on the board of Novell, the APA, discussions regarding anyone who negotiated the APA, Amendment No. 2, Novell's efforts to locate a signed copy of Amendment No. 2, the May 28th press release, the reasons for the May 28th press release, the June 6th, 2003 press release, whether or not Mr. Messman has spoken with anyone who had participated in the APA, the August 4th letter after the June 6th press release, the Wall Street Journal article, as well as Mr. Sontag's request for clarification of the APA. Those were all issues that were

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covered in depth in his examination.

And when they made the

pitch to the Court early on said in a sense what we're doing is we're continuing Mr. Messman's direct examination. So given the shortness of time, the amount we need to cover in the next day and a half, we don't think it's fair for them to be able to, in our case, continue to put on evidence that the jury has already heard. THE COURT: MR. ACKER: Your Honor. Even if it counts on their time? Even if it counts on their time, yes,

It's a classic asked and answered, particularly

given the tightness of time. THE COURT: MR. SINGER: Let me hear from Mr. Singer. First of all, we think we are well

incentivized by the time limits, given that this counts on our time, to be efficient and not unnecessarily cover ground that's properly treated in the deposition. But this issue

rises because Mr. Messman was not available to be called the first week of trial when we asked for him. So in light of

that, and I don't propose that we revisit all the arguments relating to that issue, the decision was that we could play his deposition at that time. It obviously would have been

unfair to the plaintiffs to have to wait until now before they heard anything about Mr. Messman. The subjects listed by Mr. Acker cover virtually every issue in this case and certainly every issue relating

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to Mr. Messman.

I'm entitled to relay issues I'm going to

go to, even if that goes across some of the points that were raised before. I don't think we should be interrupted by

objections and such saying, well, this question is a duplicate of a question asked that the jury may have heard two to three weeks ago. I should be entitled to present a

cohesive direct examination of Mr. Messman as though he was present here when we asked for him during the first week of trial. MR. ACKER: That's really the point, Your Honor. We said we'll leave your case open

We gave them the option.

and you can have Mr. Messman, the full examination in our case. They chose not to do that. They wanted to put on his

direct testimony, at least portions of it in their case. They made that decision. So I don't think it's fair for

them now to be able to go back and redo what they have already decided they wanted to do via video when they knew he was going to be here, particularly given where we are in the trial. THE COURT: Mr. Acker, I think you accurately It's true that they wanted him They were given the

reflected what happened. earlier.

You couldn't produce him.

option of either waiting and taking all of his testimony live. They chose to put it on by way of deposition. I

think it would be unfair for me to preclude areas of

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questioning. I think what I will do is, number one, I agree with Mr. Singer, that they are going to have great incentive to be very efficient because of the amount of time they have left, but I will instruct them that they ought not to simply ask the same questions that were asked at the deposition. If it becomes clear that that's what is happening to the best of our recollection, the Court's recollection, I will sustain objections that it's been asked and answered. But I

can't say you can't discuss anything about all these areas that you just listed because, as pointed out, that would preclude the necessity of testimony. And I think that

Mr. Singer ought to be allowed to explore further those areas without asking the same questions over again. MR. ACKER: For the Court's convenience, I'm going

to proffer the Court a copy of the deposition clips that were played by defendants. THE COURT: Thank you. MR. SINGER: Your Honor, I just note, it's not my That would be very helpful, Mr. Acker.

intent to go into questions that were substantively covered before. However, inevitably, just so the jury knows where I

am, for example, I'm going to show them the May 28th press release as I did in the deposition. I would like to think

that wouldn't elicit an objection because the fact that was

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asked and answered, otherwise the jury wouldn't -THE COURT: areas. Again, I am not going to preclude

If you can ask additional questions about the press

release that were not already covered, you will be permitted to do so. MR. ACKER: THE COURT: else? MR. BRENNAN: Your Honor. Just so we can complete the lineup, Thank you, Your Honor. Counsel, do any of you have anything

I think this will be relatively brief.

Last night we were informed by plaintiff's counsel that they wished to introduce two exhibits that have not previously been denominated as trial exhibits. been identified as SCO 757 and 758. They have

Your Honor, both of

these are documents the produced in discovery I think in excess of three years ago. They have been in the possession These

of SCO's lawyers for a substantial amount of time.

are not surprise documents, not newly produced documents. We're mindful of the fact that a couple of days ago the Court would not permit Novell to produce AK filings by SCO on the ground that -THE COURT: Well, it's more than AK. I mean,

there were other things. MR. BRENNAN: THE COURT: Right. The point was --

Your point is well taken, Mr. Brennan.

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The Court is not going to permit at this late date exhibits that have not been previously disclosed to the other side. MR. BRENNAN: MR. NORMAND: Your Honor? THE COURT: MR. NORMAND: You may. One of the exhibits was an exhibit Thank you, Your Honor. Can I make one point on one exhibit,

to a Novell motion for summary judgment and it's an exhibit that Mr. Jones was asked about at deposition. THE COURT: That's not the point, Mr. Normand.

The AK and the other things were probably known to you and by the other side as well. The point is at this late date

to be coming in with entirely new exhibits I just think is prejudicial and I cannot allow you to do something that I precluded Novell from doing just a few days ago. MR. NORMAND: Very good, Your Honor.

There one last issue, Your Honor. THE COURT: Before you go, Mr. Brennan, tell me

your order of witnesses today, please. MR. BRENNAN: Yes, Your Honor. We intend to call And as the

Greg Jones, who is Novell in-house counsel.

Court heard, Mr. Jack Messman, the former Novell CEO, will be called. THE COURT: correct? He will be your last witness; is that

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MR. SINGER: MR. BRENNAN:

That's correct. Then we will have the deposition of

Mike DeFazio, the former general manager of the UNIX group. I think the clip length is about 45 minutes. And then

assuming we're able to get to him, we intend to start with Mr. Braham. And the Court has indicated this afternoon his So that's the lineup for

deposition would be conducted. today, Your Honor. THE COURT: Mr. Normand. MR. NORMAND: Okay.

Thank you, Your Honor.

The issue that Mr. Singer raised a few days ago was in what context would it be appropriate for SCO to put in Novell shareholder value and market capitalization. propose to do that with Mr. Jones with Your Honor's permission. THE COURT: MR. ACKER: Any objection? No, Your Honor. I assume if he knows I

the answer, but, all right, they can ask. MR. NORMAND: Your Honor, I propose to do it -- we

could do it in the redacted form, but I propose to do it with a trial exhibit we have, which is a Novell 10-K. THE COURT: foundation is. MR. ACKER: Let's do it the old fashioned way and Why don't we wait and see what the

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see what he has to say. THE COURT: MR. NORMAND: That's all we can do. I guess the point we're making, Your

Honor, is we thought we were going to be given the opportunity to get this in. It seems as if we should be

able to do it with a Novell witness, otherwise we would simply propose to read it to the Court and to the jury. THE COURT: MR. NORMAND: THE COURT: number ten. Well, let's play it by ear. Thank you, Your Honor. Counsel, we have to talk about juror Okay.

During the voir dire -- I have talked about

this already -- she indicated she had a vacation that was planned to begin Friday. She and her family are planning to Yesterday she was very

go to Las Vegas for the weekend.

upset because she senses there is no way that the jury is going to be able to finish its deliberations by Friday. Therefore, she was asking Ms. Malley what to do. In the course of that, the jury, among themselves I guess, said what if we were to, if we can't finish Friday night, come back Tuesday and allow her then to take her vacation through at least part of the day Monday. The

alternative would be to have her be the designated alternate juror and simply dismiss her when we finish the case. So what is your thought? MR. SINGER: I think we would like to have a

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little bit of time to discuss the implications of that. we respond to the Court at the first break? THE COURT: Yes. I

Can

I think -- and, Sandy, tell me if I'm wrong.

think if we were able to communicate to her that it would be all right for her to be gone Monday, the deliberations can continue Tuesday, that if we can tell her that, that will solve her emotional dilemma. MR. SINGER: She apparently is quite upset.

My inclination is to say that would I would

be an acceptable course to not be here for Monday.

like to have a chance -- if we could have a few minutes? THE COURT: I was just going to say, if we can

communicate to her something by the end of today, even if it's as general as we are aware of your concern and we'll take care of it, that then leaves us the option of having her be the alternate. it. So, please, both sides think about

Before today is up, let me know what you think and I

will try to communicate something to her so her mind can be put to rest. MR. BRENNAN: sensitivity. Your Honor, I appreciate the Court's A

I have one proposal on Novell's behalf.

happy juror is a better juror.

We're of the mind to allow

that decision to be made now so she doesn't spend the day fretting. THE COURT: That's a good point, Mr. Brennan.

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Those guys want to talk, so let's let them visit for a second. MR. SINGER: discuss this issue? THE COURT: MR. SINGER: Go ahead. Your Honor, SCO is in agreement with May we have a couple minutes to

the Court informing this morning juror number ten that this issue will be worked out in one of the ways that the Court has enumerated. We're prepared, if she is on the jury and

the decision isn't back Friday, for Monday to be a day that the jury does not deliberate, we pick up on Tuesday. We're

prepared, alternatively, to discuss the possibility that she would serve as an alternate. THE COURT: All right. If I inform her when she

comes in that if the jury is not able to reach a verdict on Friday, that they can then be dismissed or excused, recess over the weekend, including Monday, come back Tuesday, will that be an acceptable alternative? MR. BRENNAN: That's agreeable, Your Honor. Thank

MR. SINGER:

We would suggest, if it meets with

the Court's approval, she be told privately rather than -THE COURT: The only problem with that, Mr. You know, they are

Singer, is it affects the whole jury.

the ones who are going to have to come back Tuesday as well,

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so I think it's probably best.

I think it will be

communicated to them through her, in any event, because apparently yesterday it was a subject of some discussion, because they were wondering why she was crying. MR. SINGER: We certainly are in agreement with

her mind being put at ease on that issue as soon as possible. THE COURT: come in. Mr. BRENNAN: THE COURT: Yes. Thank you, Your Honor. That's what I'll do as soon as they

If there is nothing else, counsel,

we'll have Ms. Malley bring the jury in. Could you be getting Mr. Jones in, please. MR. ACKER: I am, Your Honor.

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

Ms. Thomas, we understand that we are causing you some consternation about your vacation. As I recall, during

voir dire, you indicated to us that you had it planned and so it was not withheld. I just wanted you to know that if

it became necessary because the jury was not able to reach a unanimous verdict on Friday, that if the jury decided they wanted to wait until Tuesday to reconvene to complete the deliberations, that is something that you can do. In fairness, let me ask you this, will that solve

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your dilemma so your mind is now at rest? JUROR NO. 10: THE COURT: Yeah, it would.

Let me ask the other jurors, is that

going to create a serious problem for any of you if that is the outcome? that? Okay. So everyone should put those things aside Is there anyone who would have a problem with

and focus entirely on the testimony that you will be hearing today. Mr. Acker. MR. ACKER: Thank you, Your Honor.

Novell will call Mr. Greg Jones. GREG JONES, Having been duly sworn, was examined and testified as follows: THE CLERK: If you would please state and spell

your name for the Court. THE WITNESS: Greg Jones. G-r-e-g, J-o-n-e-s.

DIRECT EXAMINATION BY MR. ACKER: Q Mr. Jones, if you would adjust that mike up, it might

make it a little easier for you and the court reporter. Mr. Jones, what do you do for a living? A Q I'm in-house counsel at Novell. How long have you been in-house counsel for Novell?

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A Q

I think since March of 1992. Can you tell the ladies and gentlemen of the jury what

your responsibilities are as a lawyer inside of Novell? A So I lead a team of lawyers and paralegals that provide

legal support to our engineering, research and development teams, product development teams. Q A Q Where do you live and work? In Provo, Utah. At some point in time during 1995 and 1996, or earlier,

did you have occasion to meet someone by the name of Darl McBride? A Q A Yes, I did. How did that happen? Darl and I both were working at Novell. Darl had I had legal

business responsibilities with Novell Japan. responsibilities for Novell Japan. context of when he and I first met. Q A Q

I think it's in that

So you worked together for a short period of time? Yes. Let me fast forward now to 2002. Were you contacted by

Mr. McBride? A Q A Yes, I was. Approximately when did that occur? It was in the fall. I think the first contact was

October 10th, was the first contact.

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Q

When you say contact, was that an in-person

conversation or telephone call? A Q A Q It was a telephone call. Who called whom? Darl McBride called me. Do you recall before October of 2002 when was the last

time you had spoken with Mr. McBride? A The last time I had spoken to Darl was probably when he

left Novell, sometime in the mid 1990s. Q A What did Mr. McBride say to you? So when he called me, he kind of updated me on his He told me that he had just joined Caldera, the He had He

career.

company that later would be called The SCO Group.

joined them about three months earlier as their CEO.

described to me that SCO was collecting UNIX royalties for Novell as they were required to by the agreement and how they were paid five percent of those royalties and said, you know, that's not really cost efficient for us. It costs us

more to collect the royalties than we're getting paid, kind of mentioned that. Then he said they were looking into

whether users of Linux might be violating UNIX intellectual property rights in some way. Then, in that call -- or it could have been in a later call in November, he mentioned that in the agreement between Novell and SCO called the asset purchase agreement whereby

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Novell had transferred certain parts of the UNIX business to SCO, that that agreement excluded copyrights, and so those copyrights stayed with Novell and had not transferred to SCO. And he said he thought that must be some type of

clerical error or something in the agreement. Q A Did he ask for anything in that first call? I can't recall him actually asking for something in

that first call. Q Did you respond at all to his statement regarding the

copyrights being excluded? A Yes. Yeah, he had pointed out to me in the agreement

where they were excluded, so I agreed with him the agreement did exclude the copyrights. Q Did you agree with him his statement that this was some

sort of a mistake or some sort of clerical error? A No. I told him I understood what he was saying, why he

might have a question, but I didn't agree with him that it was a clerical error that led to those copyrights being excluded. Q After the first conversation in October of 2002, did

you have subsequent calls or conversations with Mr. McBride or other folks at SCO? A Yes. The first one was from Joanie Bingham, who I

understood to be an assistant to Darl McBride of The SCO Group. She left some messages for us.

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Q A Q

Did you actually call Ms. Bingham back? Yes. Yes, I did.

After that conversation, did you document your call

with her in an e-mail? A Q Yes, I did. Let me show you, Mr. Jones, what we've marked as Do you

Exhibit G-11, and ask you to take a look at that. recognize it? A Q A Yes, I do. What is it?

This is an e-mail I wrote about the conversation that I

had with Joanie Bingham, an e-mail I wrote about that conversation. Q Either from your memory or reading from the e-mail

itself, can you tell the ladies and gentlemen of the jury what Ms. Bingham said to you and what you said to her on or about the 15th of November in 2002? MR. NORMAND: Your Honor, I am not sure we have

laid a foundation for the use of the document if Mr. Jones is going to read from the document. THE COURT: I will not allow him to read from it

until you've asked him whether or not he needs his memory refreshed. Acker. // Let's just lay the foundation properly, Mr.

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BY MR. ACKER: Q Do you have a recollection of the call from Ms.

Bingham? A Q Yes, I do. Can you tell the ladies and gentlemen of the jury what

you said to her and what she said to you? A Yeah. Basically she left me these messages, and in her

messages she had wanted access to our files -- some of our files at Novell. So I asked her, you know, what she needed, She said she had an

why she wanted access to these files.

assignment from Darl McBride, her boss, to help him with some type of IP tracking. He wanted to know something

about -- I believe it was the agreement between Novell and UNIX System Laboratories when Novell had purchased the UNIX business from AT&T, and at that time AT&T had a company called UNIX System Laboratories. I think she was saying

that Darl would like her to get access to those, look into them. And I told her, you know, I need to understand this

better, so I'm going to be calling Darl. Q So you left her that you were going to call Darl

McBride directly? A Q Yes. Did you do that or was there a subsequent telephone

conversation with Mr. McBride? A Yes, there was.

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Q A

Do you recall approximately when that was? Within several days of this e-mail. I can't remember

the specific date. Q A Q Did you actually speak with Mr. McBride? Yes, I did. Did you draft an e-mail after speaking with him, after

this call with Ms. Bingham? A Q Yes, I did. Let me show you what we've marked as Exhibit K-11. Do

you recognize what that is? A Q A Yes, I do. What is it? This was an e-mail that I wrote on November 20th

reporting a phone call that Dave Wright -- Dave Wright is someone at Novell who works in our corporate development team. So in this an e-mail I talk about a conversation that

Dave Wright and I had with Darl McBride on that day, November 20th. Q Did you document in this e-mail the substance of the

conversation with Mr. McBride after it happened? A Q Yes, I did. Can you tell the ladies and gentlemen of the jury what

it was that Mr. McBride said to you and to Mr. Wright and what, if anything, you said in return? MR. NORMAND: Again, Your Honor, as long as

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Mr. Jones is not reading off the document. BY MR. ACKER: Q A Do you have a memory of what was said? Yeah. So basically we wanted to get back in touch with

Darl to find out why he wanted access to these materials. He said he wanted to research the IP rights that SCO might have in UNIX, what rights they have, and this was for the purpose of looking at pursuing end users of Linux if they were violating UNIX intellectual property rights. He also suggested -- he brought up again the fact that SCO was collecting these SVRX royalties of Novell's that were being sent to us and suggested that, you know -- I think what he was saying is that people might be moving from SVRX to Linux, so if we, SCO, are taking IP enforcement actions against these Linux users, maybe your SVRX revenues will be supported in some way so you will get more revenues. So, Novell, this might be in your interest to help us out this way, to give us access to the information because it's going to help with those revenues. I basically told Darl, you know, that's sensitive, you may be getting into litigation with third parties. That's

very sensitive for us to be sharing information with you in that context. Also some of the materials you're asking for Then said I would get back to him.

may be confidential. Q

Is that how you left the conversation with Mr. McBride

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on November 20th? A Q Yes. What did you do internally after that telephone call

with Mr. McBride and Mr. Wright on November 20th? A So, for example, I wrote this e-mail. I wanted to

inform my boss and people in the legal department that this contact had happened, so I wrote this e-mail. I also brought this to the attention of Carl Ledbetter and Chris Stone, they were the executives responsible for Novell's research and development and product development efforts at Novell at the time, to find out what their reaction was, if they would have any interest in supporting SCO in these types of activities Darl was describing to me. Q Did you get a response from either Mr. Stone or

Mr. Ledbetter, or both? A I got a response, yeah, from both of them. They said

no, they were not interested in supporting these efforts. Q Did you have a subsequent telephone conversation with

Mr. McBride in the fall or winter of 2002? A Q A Q Yes, I did. Did you document that in an e-mail as well? Yes, I did. Let me show you what we've marked as R-11. Do you

recognize that? A Yes, I do.

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Q A

What is it? This was an e-mail I wrote on December 4th, 2002

reporting on a conversation that Dave Wright and I again had with Darl McBride on that day, December 4th. Q Could you tell the ladies and gentlemen of the jury the

substance of that conversation on December 4th? A Yes. So basically we got back to Darl, followed up

with him, let him know that Novell was not going to be supporting him, this research effort that he was undertaking to find these documents and so forth. And, you know, Darl can be very persistent, so he -- so he tried to advocate, I still think this is in your interest to help us out. This would still be something that would be And so we just let him know, well, there

beneficial to you.

are several reasons why Novell had made this decision not to support SCO's efforts in this regard. Q A What were the reasons? Well, one was, you know, he had said we have these SVRX

revenues, those might be supported in some way by his activities. And we said, we don't know if that's going to Also it's really,

happen, that may not necessarily happen.

again, sensitive that this may involve litigation with third parties. And also, you know, to go access these materials

and do the research and do this type of due diligence effort, that takes time and resource and it's just not

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something we're going to spend our time on. Lastly, you know, that we have customers and partners that distribute Linux and they use Linux, so, you know, we value those relationships more than we would any other type of benefit, such as those SVRX revenues being a benefit in some way. Q At any point during your first conversation in October,

your conversation on November 20th or this conversation on December 4th, did you ever agree with, in any way, Mr. McBride's position or statement that somehow the exclusion of copyrights in the asset purchase agreement was somehow a clerical error or mistake? A Q No, I didn't. How did Mr. McBride react when you told him you weren't

going to be -- Novell was not going to be participating or assisting in his efforts? A Well, so Darl, you know, very, very persistent, saying,

well, you know, who's making these decisions, who's calling the shots, I would like to explore this further. So I let

him know that basically, you know, these individuals had been identified to you before, Carl Ledbetter and Chris Stone. They are on the executive management -- they were at

the time on the executive management team at Novell, the worldwide management team, the highest level. So I told

Darl our highest executive level had made that decision.

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That's who was calling the shots.

And then he indicated

that he would, you know, be revisiting the topic. Q After the holidays into 2003, did you have subsequent

contact with someone from SCO on the issue of the copyrights? A Q A Yes, I did. What happened? Well, I was contacted by Chris Sontag. Chris Sontag

worked with Darl at SCO and he had responsibility for this licensing program that Darl had mentioned to me earlier, so he had responsibility for that and was contacting me in that context. Q Do you recall approximately when that call was with

Mr. Sontag? A This was sometime in February, I think mid February,

maybe around -- one of them was around the 20th of February. Q Did you subsequently get an e-mail from Mr. Sontag

after the call? A Q Yes, I did. Let me show you what we've marked as Exhibit V-12. Do

you recognize V-12? A Q A Q Yes, I do. There appears to be two e-mails here; is that right? Yes. One from Mr. Sontag and from you on the bottom; is that

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right? A Q A Q A That's right. What is the date of that e-mail to you? The one to me is February 20th. And you responded back to him on the following day? Yes, I did. MR. ACKER: Exhibit V-12. MR. NORMAND: THE COURT: No objection, Your Honor. V-12 will be admitted. Your Honor, I move for admission of

(Defendant's Exhibit V-12 was received into evidence.) MR. ACKER: Highlight the first e-mail at the

bottom from Mr. Sontag, Mr. Lee. BY MR. ACKER: Q So, on the 20th, Mr. Sontag wrote to you and said,

attached is a first cut at a side letter to clarify the issues that we discussed yesterday. I will give you a call Regards, Chris

later, or feel free to call me on my cell. Sontag.

Does that help you place the date of the telephone

call with Mr. Sontag? A Q A Q Yes. When was it? Pardon? When was the call?

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A

February 20th -- well, so this is -- let me see. So it's February 19th.

Q

Do you recall what was discussed with Mr. Sontag in the

call on February 19th? A So what had happened is obviously we had -- Novell had

rejected SCO's request that we provide them with research assistance and access to documents and so forth. But then

Chris came back because they were still concerned the asset purchase agreement was left with saying the copyrights were excluded from the transferred assets, so they are staying with Novell, SCO wants them to be with SCO. wanting to change this in some way. So I basically told Chris, look, we've told you we're not going to do this research and so forth for you. Whatever -- if you want to send a written document, some terms that we just evaluate one time and get back to you, then I could look at that. Q Is that what Mr. Sontag attached to his e-mail on the So they are

20th, what he refers to as a side letter? A Q Yes. If we go up to your response to him on the 21st, you

wrote, Chris, as I mentioned on the phone, I need to work in conjunction with a business person here at Novell, and I am still trying to get a business person assigned to this. will keep you posted. What did you mean by that? I

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A

Well, that, you know, I'm in-house counsel at Novell

and so I'm their lawyer, but decisions like this need to be made by the appropriate -- people in appropriate authority, the business people, the management team. Chris. So he had sent me this document. So I told that to So basically I'm

telling him I'll take a look at it and I will take it to the appropriate executive or people in management at Novell. Q Let me hand you what has already been admitted, the Take a look at that.

final page of Exhibit I-31. MR. ACKER: BY MR. ACKER: Q

If we could bring that up, Mr. Lee.

Is this the side letter that Mr. Sontag sent to you on

the 20th of February of 2003? A Q Yes. If we take a look at the first sentence -MR. ACKER: Actually, just highlight the entire

body of it for the jury. THE COURT: MR. ACKER: Honor. MR. NORMAND: Your Honor, the final page of I-31 I Excuse me. You say I-31?

Yeah, the final page of I-31, Your

think has been admitted as the redacted portion of SCO 615. THE COURT: MR. ACKER: THE COURT: That's why I was confused. Thank you for that clarification. Go ahead.

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BY MR. ACKER: Q If you go down to the signature page. So this was a

proposal that SCO was making to Novell. right? A Q Correct.

Do I have that

And if we can go up to the top of the body of it, we

can see the first sentence, what Mr. Sontag was proposing was a letter that says this letter clarifies the intent of the parties with respect to the above-captioned transaction, correct? A Q Correct. Then if we move down to the sentence that begins we

wish to clarify the following? A Q Yes. Below that bullet point one says, all right, title and

interest in and to copyrights associated with the AT&T SVRX agreements held by Novell at the time of the asset purchase agreement were intended to be in part of the included assets identified in schedule 1.1(a). A Q Yes, I see that. Did you have an understanding when Mr. Sontag sent this Do you see that?

to you in February 2003 why he wanted that language changed in the APA? A Only that he was involved in their licensing program,

he had responsibilities there, and so this was in that

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context. Q Did you understand in the APA that, in fact, the

copyrights to the UNIX code were not included in the transferred assets? A Yes. MR. NORMAND: THE COURT: MR. NORMAND: Objection, Your Honor. Excuse me. Objection, Your Honor, calls for a

legal conclusion, among other things. THE COURT: BY MR. ACKER: Q If we go down to bullet point number two, Mr. Sontag I'll overrule the objection.

was also asking that no right, title or interest in and copyrights associated with the AT&T SVRX agreements otherwise held by Novell at the time of the asset purchase agreement were intended to be part of excluded assets identified in schedule 1.1(b). A Q Yes. So what were you understanding that Mr. Sontag was Do you see that?

asking Novell to do with respect to the excluded asset portion of the asset purchase agreement? A Well, this language is directly in conflict with the

actual language of the asset purchase agreement, so I understood him to be saying, you know, the asset purchase agreement says the copyrights are here. I want to have some

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document that says that they should be here with SCO. Q When you say at first that the copyrights were here,

referring to -A To Novell. So basically under the asset purchase

agreement copyrights are with Novell and he's saying I want something that says that they were intended to be with SCO and they should be with SCO. Q Again, this request is being made to you in February --

around February 20th, 2003? A Q A That's right. What did you do with this request from Mr. Sontag? So I reported this to Chris Stone, the executive I

mentioned earlier, and asked -- and basically he rejected this and said no, Novell would not do this. Q A Would not do what? Would not accept this proposal, sign this document. MR. NORMAND: Your Honor, I move to strike because

there was an objection at his deposition to subsequent conversations with any business person. MR. ACKER: Mr. Stone has already provided that

testimony in this courtroom, Your Honor. MR. NORMAND: That doesn't mean it comes in

through, Mr. Jones, Your Honor. THE COURT: privilege was exerted? Mr. Acker, are you disputing that a

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MR. ACKER: Your Honor. THE COURT:

Off the top of my head, I don't know,

I'm going to have to rely upon Mr.

Normand's representation, and I would agree that anything privileged ought not to come in through this witness. So

the Court will instruct the jury to disregard the answer to the question just given regarding this conversation with Mr. Stone. BY MR. ACKER: Q A Did you respond back to Mr. Sontag? We responded back to him. I can't remember

specifically if I called him or how we got back to him, but we got back to him and let him know what the response was. Q A Q What was the response? The response was no, that their proposal was rejected. At some point in early 2003, sometime before May 28th,

2003, did you see a copy of -- an unexecuted copy of what is Amendment No. 2 to the asset purchase agreement? A Q A Yes, I did. Can you explain to the jurors how that happened? Well, so we had had these contacts from SCO asking

about the asset purchase agreement, you know, dealing with the copyright ownership issue. We started to review some of In the course of doing

our documents internally at Novell.

that, we came upon this unsigned Amendment No. 2 to the

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asset purchase agreement. Q A Q Do you recall where that was found? No. Did you make any efforts to find an executed copy of

Amendment No. 2? A A member of our legal department was given the

assignment to see if there was a signed Amendment 2 in the files of Novell. Q A Q Did that occur before May 28th, 2003? Yes, it did. Was that person able to locate a signed copy of

Amendment 2? A Q No, he was not. Where, typically, at Novell are legal documents --

these contractual documents maintained? A In the legal department itself, in our law department,

in our file room, or in our archives that the legal department has sent off-site. Q Is that where the person on your team that was assigned

to look looked for the executed copy of Amendment 2? A Q I'm sure the places he looked included those locations. At some point in time in 2003, did you see a signed

copy of Amendment 2? A Q Yes, I did. When was that?

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A Q A

June 6th, 2003. Do you know how it was that you came to see that? Yes. SCO had located a signed Amendment 2 and they

faxed that to Novell, and that's when I saw the signed Amendment 2. Q A Q Was that the first time you saw a signed copy of it? In 2003, that was the first time I saw a signed copy. Subsequently was the signed copy of Amendment No. 2

located in Novell's files? A Q A Q Yes, it was. Do you know where it was found? It was found in the tax department. Was that a relatively unusual place for a contract to

be found? A Well, it was not where we store our documents. It's

not -- they may have occasion to review our documents, but it's not where we store them. know. Q At some point in time in the fall of 2003, did Novell It's not our file room, you

register copyrights with the U.S. Copyright Office for the UNIX code? A Q Yes, we did. Let me show you what is marked as U-45. Let me show

that to you, Mr. Jones. compilation document is?

Do you recognize what that

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A

These are the certificates of registration that were

given to Novell after Novell applied for copyright registrations on versions of UNIX. Q What was the latest version of UNIX or UnixWare that

Novell filed a copyright registration for? A Q I believe it was UNIX SVRX 4.2MP. Is UNIX SVRX 4.2MP the version of UNIX that was in

existence prior to the closing of the APA in 1995? A Q Yes. Is that the most recent version that was in existence

prior to the closing of the APA in 1995? A Q To my knowledge, yes. Did Novell have to pay money in order to get those

registrations on file? A Q A Yes. How much? The fees we paid the copyright office totaled $9,540. THE COURT: U-45? MR. ACKER: U-45, Your Honor. admissibility. MR. NORMAND: There is, Your Honor. The other Yes. I'm moving to admit Exhibit Mr. Acker, are you going to offer

I believe there is a stipulation on its

half of the stipulation is our similar compilation will come in. I propose to do that with Mr. Jones as well.

2229

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THE COURT:

All right.

U-45 will be admitted.

(Defendant's Exhibit U-45 was received into

BY MR. ACKER: Q Let me show you two documents, Mr. Jones, X-23 and SCO X-23 is a document. Can you refresh the

Exhibit 756.

ladies and gentlemen of the jury's memory about what that is? A So after Novell obtained these registrations, we were

concerned that SCO had been saying that they were the owners of these copyrights. So we felt it was important that we So one

make it known we had obtained these registrations.

of the things that we did was on December 22nd, 2003 post on Novell's Web site correspondence we had with SCO on this topic and a statement that we had obtained these copyright registrations, and letting people know if they wanted to see these registrations, they were available on the copyright office Web site. Q Do you know what documents were posted on December

22nd, 2003 in connection with this press release? A I know it was correspondence between Novell and SCO on

this topic. Q A On the topic of? The topic of copyright ownership and Novell's belief

that Novell is the owner of these copyrights under the asset

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purchase agreement. Q If you can look at SCO Exhibit 756. Do you recognize

what that is? A Q A 2004. Yes. What is that? This is a press release from Novell on January 13th, It's announcing that Novell -- by this time Novell So now Novell is in the Linux

has just acquired SuSE Linux.

business directly and we are going to be distributing Linux. This is telling our customers at this point that we have an indemnification program. So basically if anyone were to

tell you that your use of Linux violates their rights, then we will back you up, we've got your back, we'll support you, and also saying that we actually believe that we are the rightful owner of the UNIX copyrights. what this is announcing. MR. ACKER: SCO Exhibit 756. MR. NORMAND: THE COURT: No objection, Your Honor. It will be admitted. Your Honor, I move for admission of So that's basically

(Plaintiff's Exhibit 756 was received into evidence.) BY MR. ACKER: Q Unfortunately Mr. Lee doesn't have it in the system

yet, so I'm going to have to ask you some questions about

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it, Mr. Jones. Turn to the second page of the document. Do you see

there's a section there that says copies of relevant correspondence between Novell and SCO are available and it gives the Novell Web site address? A Q Yes. Do you know what correspondence -- what body of Do you see that?

correspondence went up on the Novell Web site as of January 10th, 2004? A Well, in general it was correspondence back and forth

between Novell and SCO on the topic of ownership of these copyrights, then also some other contractual issues that the two companies had with each other. Q Why was it that Novell decided to put all the

correspondence between itself and SCO up on its public Web site? A Well, this had become a matter of great public concern.

The things that SCO was doing were very visible, very public, so we felt there was a need to put people on notice of Novell's position in what we believe the true situation was, and so just to be transparent and put those materials out there so that people have the opportunity to go view them. Q Did you also put up what SCO had asserted its position

was in the correspondence it had sent to Novell?

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A

Correct.

It was correspondence, it was the back and

forth.

It was the Novell letter to SCO, here's the letter

back to Novell from SCO, and the back and forth that was going on. Q That correspondence remained up on Novell's Web site

over the next five, six years? A Q Yes. Were you aware and did you review a ruling by a

district court in this case on a motion for remand and a motion to dismiss on June 9th, 2004? THE COURT: MR. NORMAND: One second. Objection, Your Honor. I don't know

that a side-bar is appropriate, but this has been an ongoing issue. MR. ACKER: I believe the Court's ruling the other

day is we could go into this issue with respect to punitive damages. MR. NORMAND: We have an issue with respect to

which he came to it, Your Honor. MR. ACKER: THE COURT: MR. ACKER: BY MR. ACKER: Q Did you review that ruling on June 9th, 2004, If the Court will let me lead. You go ahead and lead. Yes, Your Honor.

Mr. Jones?

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A Q

Yes. Was there anything in that decision of the district

court of June 9th, 2004 that you believe was inconsistent with Novell's continuing assertion that it owned the UNIX copyrights? A Q No. Did you also review an order granting summary judgment

of August 10th, 2007 by the district court in this case? A Q Yes, I did. Was there anything in that order granting summary

judgment that was inconsistent in any way with Novell's continued assertion of ownership of the UNIX copyrights? A Q No. Did you also review the Tenth Circuit Court of Appeals

decision on August 24th -- dated August 24th, 2009 in this case? A Q Yes, I did. Was there anything in that opinion that was

inconsistent with Novell continuing to maintain its position into 2009 that it was the owner of the UNIX copyrights? A No. MR. ACKER: THE COURT: MR. NORMAND: // That's all I have, Your Honor. Mr. Normand. Just a moment, Your Honor.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. NORMAND: Q A Q

CROSS-EXAMINATION

Good morning, Mr. Jones. Good morning. You just mentioned the Tenth Circuit opinion. Do you

recall that? A Q A Q Yes. You've read that opinion? Yes. You understand that that opinion is why we're having a

trial here, correct? A Q Yes. You understand that this trial could result in a

situation in which Novell does not own the UNIX and UnixWare copyrights, correct? A Q Yes. You understand that SCO is bringing a claim for slander

of title at this trial, correct? A Q Yes. That prospect has no bearing on your testimony on

whether you wanted to keep that information up on Novell's Web site, right? A Q That's correct. Now you were asked, Mr. Jones -- let's look at SCO This is a Novell press release in which it

Exhibit 756.

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announces that it's offering SuSE Linux enterprise server customers a new indemnification program, correct? A Q That's right. And Novell made this announcement shortly after IBM had

invested $50 million in Novell, correct? A I know that was part of the transaction. I don't know

the date that the investment took place. Q Mr. Jones, Novell has a joint defense agreement with

IBM, correct? A Q Yes. That agreement exists because Novell and IBM share

common interests opposing SCO's claims in litigation, correct? A I know there was a joint defense agreement, and there If it fits exactly your I know there is a

is a commonality of interest.

description, I wouldn't be surprised. joint defense agreement. Q

That joint defense agreement existed prior to

January 2004, correct? A I don't know what date the joint defense agreement was

put in place. Q If I were to represent to you there's been testimony it

began in May 2003, would that refresh your recollection? MR. ACKER: testimony. Your Honor, there has been no such He

If he has a question, he should ask him.

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shouldn't be testifying. THE COURT: I will sustain the objection and ask

you to rephrase the question. BY MR. NORMAND: Q The relationship began in May 2003, is that right,

Mr. Jones? A I don't know when the joint defense agreement was put I don't know.

in place. Q

You know that counsel for IBM spoke with counsel for

Novell in the spring of 2003, correct? A Q Yes. You know there have been discussions about those

communications in discovery in this case, correct? A Q Yes. Now you spoke about your communications with SCO in the Do you recall that testimony?

fall of 2002. A Q Yes.

Those conversations included discussions about

copyrights; is that right? A Q That's right. You don't recall all of the exact language that SCO

used in those discussions, correct? A Yeah, the exact words, the exact language that they

used, I wouldn't remember that. Q I think you did say that you recall the gist of the

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conversations was that Mr. McBride thought the original language of the asset purchase agreement on the issue of copyrights contained a clerical error; is that right? A Yeah, that was part of what he said was that he thought

there was a clerical error. Q You understood him to mean that the original language

of the asset purchase agreement on the issue of copyrights can't reflect what the parties intended, correct? A Q That seemed to be what he was expressing. Now you understand that Mr. McBride wanted to correct

what he regarded as a clerical error, correct? A Q Yes. Now the internal e-mails Mr. Acker asked you to look

at, in none of those e-mails did you assert that Novell owned the copyrights, did you? A There was no need to. It was understood, Mr. McBride

had brought to my attention the asset purchase agreement excluded the copyrights. Q In those e-mails you weren't speaking to Mr. McBride,

correct? A I was not. Those e-mails don't -- those e-mails report

discussions that I had with Mr. McBride. Q So you never said to Mr. McBride in the discussions

Novell owns those copyrights, correct? A In effect, I did because he told me the asset purchase

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agreement excluded the copyrights and I agreed with him. Q So that is something you are saying you told Mr.

McBride but you did not report in your e-mails; is that right? A Q A Correct. Why is that? Again, I think Novell's ownership of the copyrights was

well understood by us. Q It's your testimony that before you heard from

Mr. McBride in the fall of 2002 you believed that Novell owned the UNIX and UnixWare copyrights? A Before that happened -- well, in 2002, I would have

had -- when he called me, it had been a long time since I'd even looked at the issue. Q You didn't know whether Novell owned the UNIX or

UnixWare copyrights before you spoke with Mr. McBride? A At the moment he called, I didn't have an

understanding, didn't have a recollection. Q Let's look, Mr. Jones, at what we've shown to you,

Exhibit R-11. MR. NORMAND: that language. BY MR. NORMAND: Q This is an internal e-mail, Mr. Jones, from December If we could blow up the full text of

4th, 2002 to your colleagues at Novell from yourself; is

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that right? A Q That's correct. You say at the bottom of the second to last paragraph

that you did not mention in any way Novell's own interest in becoming more active in the Linux area in a more direct manner. A Q You say that, correct?

That's right. So in this internal e-mail you were acknowledging you

were not straight with Mr. McBride in your discussion with him, right? A Q A I don't think that's a fair -But you didn't tell him in this, correct? No, I'm answering your question, which was that I was I think that's a very unfair

not straight with him. characterization. question. Q A

I'm a lawyer and -- I'm answering your

Very good, Mr. Jones. I'm a lawyer for Novell. I'm apprized of confidential

business plans that they are developing and considering, and so I'm not at liberty to share with others who are calling me the various things that we may intend to do in the future. It would be inappropriate for me to share

information that's given to me in my capacity as a lawyer for Novell. Q There was information that you thought was relevant to

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your discussion with Mr. McBride that you opted not to tell him, correct? A Q Yeah. I believe I had very appropriate reasons.

Now in your discussions with Mr. McBride, he was

explaining to you ways in which Novell could make more money, correct? A Yeah, that's right. His idea was either more money or One

at least SVRX royalties would not decline as rapidly. way or another, he was suggesting there might be some benefit to you, Novell. Q

Now you spoke to this issue of a side letter that you Do you recall

received from Mr. Sontag in February 2003. that? A Yes. MR. NORMAND:

Can we look at Exhibit I-31.

If we

could blow up the text of that letter for the jury. THE COURT: This one has been admitted, so do you

want it shown to the jury? MR. NORMAND: THE COURT: one has been admitted? MR. NORMAND: MR. ACKER: THE COURT: MR. NORMAND: I believe it was admitted. Yes, the last page of I-31. That's all you were referring to? Yes, Your Honor. Yes, Your Honor. This is the one that has been -- this

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BY MR. NORMAND: Q This is a letter, Mr. Jones, in which Mr. Sontag sought

to clarify the original language of the asset purchase agreement; is that right? A Q The words of the document are clarified. And your understanding is that Mr. Sontag sent you this

letter before he had seen Amendment No. 2, correct? A You know, I don't know when he saw Amendment 2. I know

that later he said he had not seen it prior to June of 2003. Q Now by this time you had seen an unsigned copy of

Amendment No. 2, correct? A You know, I may have. I'm just not certain the date I'm just

when I first saw the unsigned copy of Amendment 2. really not certain when I first saw it. Q

I thought I heard you tell Mr. Acker that by this point

you had seen an unsigned copy? A I'm sorry. I thought he was asking me sometime in the I hadn't recalled him asking me if prior to I don't

spring of 2003.

this conversation with Mr. Sontag I had seen it. believe that's what he asked me. Q Maybe I misheard.

At some point in the next couple of

months, however, you saw an unsigned copy of Amendment No. 2, correct? A Q That's true. You thought the language of Amendment No. 2 was

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potentially significant, correct? A Q Yeah, I would say potentially significant is correct. You thought it was a potentially important document,

correct? A It was a relevant document, so we would want to

actually see if it was signed or not. Q You didn't make any personal effort to find the signed

copy; is that right? A I did in the sense that I was involved in assigning

someone else who had experience finding documents that we might have difficulty tracking down to go see if he could find it. Q You don't know exactly what that person did to try and

find it, do you? A I don't know all his efforts. I do know his efforts

included looking at our file rooms and pulling boxes out of the archives. Q Do you know whether this person made any effort to

contact anyone that had negotiated the asset purchase agreement? A Q A Q I don't know. You made no such effort, correct? I did not. Novell's tax department is part of Novell's files,

correct?

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A

It is.

Our legal department files, yeah.

The Novell

general files is part of our company. Q

They have files.

You were asked about the issue of copyright Do you recall that?

registrations. A Q Yes.

I believe that Exhibit U-45 was a compilation of Novell

copyright registrations? A Q Yes. Novell filed those copyright registrations after SCO

had filed its own set of registrations? A That's correct. MR. NORMAND: THE WITNESS: MR. NORMAND: screen, Mr. Jones. Your Honor, I move SCO 755 pursuant to the stipulation with counsel. MR. ACKER: I have no objection. I just need to I don't And could we pull up SCO 755. Do I have that one? I think it's in front of you on the

check to make sure it is what was stipulated to. doubt counsel's representation. MR. NORMAND: to review it. THE COURT: at? MR. NORMAND: I think we do.

We'll give Mr. Acker an opportunity

You don't have a copy for him to look

I know I have one

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handy. MR. ACKER: I don't have an objection subject to

being able to look at this and compare it -THE COURT: All right. Let's go ahead. I will

admit it, then, subject to Mr. Acker's subsequent review. (Plaintiff's Exhibit 755 was received into evidence.) BY MR. NORMAND: Q Do you recognize the front page of that document,

Mr. Jones? A Q Can it be blown up a bit? I think we can. You recognize it to be a certificate

of registration? A Q I recognize that's what it is, yes. You have seen SCO's -- or at least some of SCO's own

copyright registrations before, correct? A As you know, there are many documents in this case. I

may have. Q Novell was aware that SCO had filed its copyright

registrations before Novell filed its own, correct? A Q Absolutely, we knew. As an attorney, you understand that by filing a

copyright registration it doesn't mean you own the copyrights, correct? A Yes. The fact that SCO obtained this didn't mean they

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actually were the owners of the copyrights. indicative of that. Q

It's not

Now, Mr. Jones, you understand that one of the issues

in this trial is whether Novell has falsely claimed to own UNIX and UnixWare copyrights, correct? A Q Yes. Your view is that Novell has publicly claimed to own

UNIX copyrights, correct? A Q Yes, it is. It's a fact.

Your view is also that Novell has publicly claimed to

own UnixWare copyrights, correct? A Q That I'm not following you on. Mr. Jones, while counsel looks at this, I wanted to That is

show you, and read to yourself lines 16 through 20. from the 2008 trial testimony. A Q Yes.

Having looked at that, do you acknowledge your view

that Novell has claimed to own UnixWare copyrights? A I'm sorry. You're saying based on that testimony that Is that the question?

was given at trial? Q

The question is whether your testimony at trial was

that you acknowledge that Novell has claimed -A Q No. What happened at trial -The question is

Let me finish the question, Mr. Jones.

whether you said at trial that you acknowledge that Novell

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has claimed to own UnixWare copyrights? A I'm