Week 3, Day 13 in SCO v. Novell - Jones, Messman, DeFazio, Braham - Updated


March 25 2010

First item up today was about a distressed juror. It seems she has planned (and revealed this in voir dire) a vacation for the coming weekend, to extend into Monday. The jury, looking at the pile of evidence they have to go through, does not think they will complete deliberations on Friday afternoon. So they, as a group, brought it up with Sandy Malley, Judge Stewart's assistant / clerk / jury liason / doer of things that need doing. (Her title is "courtroom deputy".)

Judge Stewart brought the matter to the attention of counsel, along with two suggestions: designate the young lady as the alternate juror, and release her from duty at the start of deliberations; or, if the jury is unable to reach a verdict on Friday, allow them to recess until Tuesday. Both sides thought either way would be agreeable; Judge Stewart picked the second path. He said he'd inform the jury as soon as they were brought in.

Brennan for Novell suggested it might be better to inform that juror privately; Judge Stewart said no because a) the decision affects the whole jury, and b) they are a close-knit group.

Indeed, when he described the plan and asked if they would be okay with it, they endorsed it heartily and the juror in question got at least one hug and several high fives from her fellow jurors.

(If anyone has been hoping for bickering & in-fighting among the jury, I think they're going to be disappointed.)

Clock status to start the day: Novell 4:07 remaining, SCO 3:13. The two sides arrived at these numbers by equally splitting their "inexplicable differences".

Jury instruction conference set for Thursday at 3:00 PM. (Judge Stewart: "I see you got the material I requested in by the deadline. I was actually hoping you'd be 30 seconds late so I could turn it down, but since you got it in, we'll have the conference." - much laughter)

Novell requested that since Jack Messmann's testimony had already begun in the form of his deposition, they would like SCO's questioning to be restricted from covering the items which had already been covered. Judge Stewart denied the request. He told SCO that he'd prefer not to spend the day sustaining "asked and answered" objections, then told Novell that he felt that SCO was "well incented" to make economical use of their time.

Judge Stewart asked if Novell would be making a Rule 50 motion. Mr. Brennan stated that they would, and that it "certainly will be interesting". Judge Stewart responded, laughing, "Oh, I have no doubt of that." However, the two sides stipulated that Novell would be making said motion, and that both sides would be taking several appeal-protection steps, without actually going through those motions in the courtroom at the point where SCO rests their case after questioning Mr. Messmann. This will help to preserve precious time during the trial.

First witness up on the stand today: Greg Jones, Novell's in-house counsel since 1992.

Mr. Jones gave a history of his contacts with Darl McBride and others at SCO. Mr. Acker did the direct. As usual, I'm going to leave out most of the detail here, which will be forthcoming from others' notes. I do want to mention a highlight during Mr. Normand's cross-examination. Mr. Normand was questioning Mr. Jones about a telephone conversation with Darl where Jones had information, or claimed to, about the status of the copyrights, but didn't reveal that to Darl.

"So you were not straight with Darl McBride in your phone call?" asks Normand.

Jones: "I think that is an unfair characterization," responded Jones.

Normand doesn't care how Jones wants to characterize it, he just wants an answer. Yes or no. Were you straight with Darl?

Jones: "I am answering your question. As a lawyer, it is not my duty to hand out company confidential information to whoever calls and asks for it."

Normand had no ready response for that.

Jack Messmann's long-awaited testimony begins with Mr. Singer on direct. He is, indeed, economical in questioning, proceeding quickly to his favorite demonstrative: the 2003 calendar. (I haven't been at very many trial days, but every time I've been there, Singer has been accusing one or more people of being the person who maliciously selected May 28 and December 22 as the dates for the press releases. I know the old saw about pounding on the facts, or the law, or the table - but there should be something in there about if you only have one fact, don't beat the poor thing to death.)

On cross with Mr. Acker, Mr. Messmann gave a very interesting history of Novell, how they came to acquire SuSE, and how it happened that he requested that IBM make a $50 million dollar investment in Novell.

Michael DiFazio was the next witness, by video deposition. I believe Mr. Marriott for IBM was the attorney conducting the questioning. DiFazio turned in a very strong performance in talking about the negotiation of the APA. He mentioned that the deal, as originally conceived, had a valuation of $800 million dollars. He said that it looked like the deal wasn't going to work, until Doug Michaels of SCO came up with the "great idea" of splitting off the Unix source code business, allowing the copyrights and royalties to stay with Novell.

Another point that he made was that much of the verbiage of the APA was "bullet-proofing" the deal, so that there would be no "loopholes" whereby SCO could avoid paying the royalties.

The cross-examination portion was rather confusing to me. I had a hard time trying to identify the points SCO was driving at. On reflection, it seems that they wanted to suggest that a) IBM had helped prepare DeFazio's declaration, and that b) DeFazio had worked with Ed Chatlos. (OK, credit where due - Chris noticed the second item, and it seemed right to me when he mentioned it. I didn't notice it independently, though.)

The final witness of the day was Tor Braham. (He says it's "pronounced like 'Graham', except with a B." However, to replicate the sound he gives it, I'd say "bray-um" - with a long 'a'.)

I have to admit to a little disappointment with Mr. Braham's testimony. It's one of the things I've been looking forward to for a long time now, so I had probably built up expectations too high.

Tor tended to ramble at first. During Mr. Jacob's direct, he gave long, meandering answers about his background, legal firms he had worked for, and how mergers and acquisitions were done. Mr. Braham also has some very distracting habits, such as removing and replacing his glasses, which, combined with his lack of focus, seemed to almost drive the jury batty. Fortunately, Judge Stewart came to the rescue. He told Mr. Braham that he realized there was a lot of information he could give, but that we were very short on time and so we needed his answers to be as economical as possible. Things sped up then, and the jury was able to focus better.

He covered why Novell had gotten into the Unix business in the first place, said that Novell could better fill the role of "good shepherd" that Unix needed better than AT&T, and that Novell's aim was to insure there was an option to Microsoft.

He also discussed the time period and process of producing the original APA. Mr. Jacobs showed Mr. Braham a draft of the APA, and asked him about some of the language.

In section 4.16, Mr. Jacobs asked about the term "sole discretion". Why was that put in? For "avoidance of doubt", says Mr. Braham. It makes it possible for Novell to protect itself in case SCO "were to go off the reservation".

Then on to the "notwithstanding the foregoing" - what is that? It's magic language, says Mr. Braham. When you have two parts of your contract that might possibly bump into each other with a contradiction, this is the magic language that you use to guarantee which part wins.

Then it was Mr. Singer's turn for cross. I have no more reason to be disappointed in Mr. Braham's testimony, as this part was an absolute gem.

Mr. Singer only had about 10 minutes remaining for today's testimony, and he wanted to leave the jurors with a great impression. He starts out with a question about Amendment 2 (which draws an objection; overruled on grounds that Mr. Jacobs had asked about Amendment 2 as well - Jacobs had asked, "So that the jury is clear, you were not involved in Amendment 2, correct?" "That is correct." "OK, so we won't be talking about that.").

Singer makes the point that the operative language of the contract must include Amendment 2, and the language of the contract without it is of no effect. Mr. Braham responds yes, it must be read as an integrated document.

Then Mr. Singer proceeds into the APA, and picks up on the paragraph where the ownership rights "without limitation" are granted. He asks about the meaning of the terms "without limitation". Braham responds that it is a way to make a listing complete, without necessarily exhaustively specifying the list to completeness.

Singer then insists that "without limitation" must include the copyrights. Braham says no, five paragraphs later there's an overriding paragraph specifically about intellectual property which excludes copyrights.

Singer says "I'm not talking about five paragraphs later. I'm talking about this paragraph."

Braham re-uses much of Singer's phrasing and responds that the language of the first paragraph is of no effect without the other paragraphs. It must be read as an integrated document.

At that point, time was up for the day. I think it left a strong end-of-day impression on the jury, but likely not the one Singer was hoping for.

01:17 AM EDT

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