Week 3, Day 14 SCO v. Novell Trial - Braham, Bradford, Musika, and Judge: "the End is Nigh"

Chris Brown
Groklaw

March 26 2010

Part 1 - Initial matters and Completion of Tor Braham's testimony.

Judge Stewart said something I missed about Novell's rule 50 motion. He said there is no jury instruction regarding privilege. He scheduled a jury instruction conference for 3pm today.

Mr. Brennan said the parties have agreed to one hour fifteen for closing arguments and Judge Stewart said he will be keeping track of the time as well. Mr. Brennan said SCO plans to use deposition video clips during the closing and Novell's believes doing so would unfairly give weight to such over the testimony of live witnesses.

Mr. Singer disagrees. He said the jury is supposed to give equal weight and doesn't think it elevates over the live witnesses.

Judge Stewart says that video will not be allowed, though he says photos of witnesses is allowed and encouraged to help the jury match faces to testimony.

Mr. Brennan asked if he may be allowed to step out of court following completion of Mr. Braham's testimony so they may calculate time. The judge allows it.

Mr. Brennan brings up the cross-examination of Greg Jones and shows in the testimony that Mr. Normand first brought up bankruptcy. Stewart says he was in error but jury instructions.

Judge Stewart said Juror 13 is expected to be the alternate unless both parties are in agreement otherwise. Novell said they are ok with juror 13 being alternate, SCO said they'd like to consider it longer. Judge Stewart said he doesn't need their answers right away, but reiterates that the two sides must be in agreement.

The jury enters and Judge Stewart addresses them saying the two parties will finish their presentation of witnesses today. That tomorrow they will hear instructions and closing arguments. He assures them "the end is near."

Tor Braham takes the stand.

SCO's Stuart Singer asks Tor Braham, Novell was your largest client?

Braham: No, had another larger.

Singer asks, You left Sonsini to be an investment banker?

Braham: Yes.

Q: For Deutsche Bank? -- Yes.

Q: IBM is one of your clients? -- Yes.

Q: Where did you get your direction from?

Braham says something to the effect that there were lots of people he listened to, some more than others. He said he had to watch the ball, not the crowd; that Mr. Chatlos was moving over to the new company, so (Mr. Chatlos) mostly negotiated for himself. He primary listened to people representing Novell. I think he identified Mr. Bradford as his main contact.

Mr. Singer referred to exhibit 639, Bates 39783-39801 from Wilson Sonsini files, generated around September 10th, 1995. He asks, This represents terms the parties are discussing? Mr. Braham replies that term sheets represent individuals. He says he cannot tell if this term sheet is more than one person or not.

Mr. Singer asks if copyrights changed at the end? Braham replies he doesn't know the dates, he has no independent recollection.

Mr. Singer asks in the week leading up to the signing, when Santa Cruz saw the exclusion, was there pushback?

Braham replies that SCO's Mr. Higgins asked regarding the exclusions, "Is this really required?"

Q: Didn't SCO obtain legal title? -- Yes, to the licenses, not intellectual property.

Q: Because there was concern about bankruptcy? -- Yes.

Q: You transferred equitable interest? -- Yes.

Mr. Singer asks something to the effect, You could have transferred copyrights and retained the equitable ownership interest and royalties? Mr. Braham says he's confused.K)L Mr. Singer replies, It was a bad question. (I missed the restatement and reply.)

Q: In Section 4.16, SVRX License is capitalized. Is that because it's a defined term?

Braham: No, I don't agree. He says he understands defined terms are normally in quotes, that there are many reasons to capitalize.

Q: Could Novell direct SCO regarding UnixWare?

Braham: No, could only direct Unix, not the UnixWare flavor.

Q: In the memorandum to the board on section for "Novell retains" it does not say copyrights on the Friday before the vote?

Mr. Braham says he'll accept that representation.

Q: Was the board meeting a teleconference?

Braham: I believe so.

Mr. Singer shows a document annotated during the board call on September 18th, 1995. Mr. Braham confirms it's his handwriting.

Mr. Singer asks, are there any schedules attached? -- No.

Mr. Singer shows exhibit 89 with Braham's name on it. It's identified as a draft of a report to the government to comply with the Hart-Scott-Rodino Act. Asked if it was his, Braham replies he doesn't know, but it's not his handwriting on it.

Mr. Singer shows exhibit 88, the actual report that was filed, and it has Mr. Bradford's signature. Mr. Singer asks if this is an important document being submitted? Mr. Braham replies that documents submitted to the government are important.

Mr. Singer indicates it shows the assets to be transferred to Santa Cruz. He reads item 1, All rights, title,... to UnixWare. Mr. Singer says on Braham's draft it has the same language, nothing saying "except for copyrights." Mr. Braham says it doesn't say that in that summary section, but that he would need to see the entire document. He states though that the summary includes the entire document by reference.

Mr. Jacobs examines on re-direct asking Mr. Braham in that exhibit 88, first paragraph, What is this doing?

Mr. Braham replies that it's saying that the entire agreement is included by reference.

Did Mr. Singer point out that the entire agreement is attached? No.

Q: What was the agreement?

Braham: The entire APA.

Q: Could you explain how negotiation works?

Mr. Braham replies, lots of different people feeding you information, each with different interests. In this case it was David Bradford communicating for the board of directors and, at the end of the day, he was the one speaking for Novell.

Q: Did Mr. Bradford say there was anyone to watch out for? (objection, hearsay, sustained).

Mr. Jacobs asks, From your discussions with Mr. Bradford, did you form an understanding of anyone to give less credence to?

Braham: Yes, Duff Thompson.

Q: Why?

Braham: He was going to be on the board of directors of Santa Cruz.

Mr. Jacobs refers to exhibit Z3 again, the minutes of the Novell board of directors meeting of September 18th, 1995, the second page resolutions, and asks, Were copyrights mentioned? -- Yes.

Q: So, as to whether the negotiators acted in the interest of Novell, what does that tell you?

Braham: It validates it.

Q: Does the input of Ed Chatlos or Ty Mattingly matter?

Braham: They're not relevant.

Q: And even Mr. Messman?

Braham: Yes, not relevant. The board of directors is the intent.

Mr. Jacobs: Mr. Singer asked questions about the back and forth with Santa Cruz, Mr. Higgins and the Brobeck team. What was was the understanding about the copyrights?

Braham: That Novell retained all.

Q: What is all?

Braham: All at existent at the time. It was assumed that Santa Curz would build on that with copyrights of their own.

Q: Under section 4.16(b) Novell could direct (SCO with regard to Unix)? (missed) Mr. Braham compared it to a sundae, that Unix is the vanilla ice cream supplied by Novell, and people could use that ice cream to create a strawberry sundae from it, and that some other company could take that vanilla ice cream and make a banana split.

Mr. Jacobs says, you seem to have a good memory of these transactions. Why?

Mr. Braham replies with an impassioned explanation that this was a life moment. He was dealing with the future of Unix. It was affecting the balance of power in the industry, that a person doesn't get many chances in their life to be involved in something this important.

Q: When did you join Deutsche Bank? --2004.

Q: At Deutsche Bank, were you involved in any report related to SCO?

Braham: No, absolutely not.

Q: Do you speak daily with the analysts?

Braham: No. They're completely separate by law. To even go there I'd have to have a lawyer to chaperone me.

Mr. Singer then re-cross examines him asking, You remembered this because it was such a big deal, but you're saying it was only in the last week across the table that (copyrights were retained)? (missed answer)

Singer: (regarding reports to government) So if the government wants to know, they'd have to look in two tables in the agreement to determine if this critical element passed?

Braham: The four pages of included and excluded assets, the core of the document, yes.

Neither side had any more questions and Mr. Braham was released.

End of Part 1

Part 2 - Testimony of David Bradford

After Mr. Tor Braham was released, Judge Stewart allowed counsel to take a moment to calculate their times for the remainder of the day. He suggested to the jury (and everyone else) that they take a moment to stand up and stretch.

When they'd returned, Mr. Brennan called David Bradford to the stand. He provided his background. He came to Novell in 1985 as corporate counsel then became general counsel until he left in 2000. Part of his duties was as secretary for the board of directors. In that capacity, he was the one who wrote the minutes.

Mr. Brennan asked, Did you have any role in the APA? -- Yes.

Q: Has it been necessary to review documents to refresh your memory? -- Yes.

Q: Is your memory as clear after reviewing?

Bradford: No, I'm appreciative that I documented it at the time.

Q: In these negotiations, did you look to outside counsel for assistance?

Bradford: Yes, to Wilson Sonsini. He then speaks highly of them.

Q: What was your relationship like with Tor Braham?

Bradford replies that he started working with him in the early 90s and depended on him. He said that he trusted Tor to carry out his directions. When asked, he also spoke well of Tolonen, Messman, Chatlos, and others.

When asked, he said the APA is clear that patents and copyrights were retained.

Q: Do you remember if the Board of Directors retained copyrights?

Bradford: Yes, I do.

Q: How do you remember?

Bradford: Because of my board minutes.

Q: How did you prepare the minutes?

Bradford explains how he created a draft containing the topics to be discussed, marked it up at the board meeting, reviewed it with Mr. Messman.

Q: Are the minutes of the Board of Directors approved at the next board meeting? -- Yes.

Mr. Brennan refers to exhibit Z3, the minutes of the board meeting of September 18th, 1995 and asks if that is his signature at the bottom? --Yes.

And under Resolved, Mr. Brennan reads the part "Board of Directors of this corporation, Novell..." and asks if it's referring to the APA? -- Yes.

Mr. Brennan calls his attention to the third paragraph "Novell will retain all the patents, trademarks, copyrights, etc" and asked, Based on your recollection based on this document, is your impression copyrights were retained? -- Yes.

Q: Were you involved in Amendment 2?

Bradford: No. The office in California, Allison and Tolonen, were involved.

Q: Was Amendment 2 brought before the Board of Directors? -- No.

Q: Do you have an understanding why?

Bradford: No, not exactly, but generally anything material is brought before the Board of Directors.

Q: Did you need to review documents to refresh you memory? -- Yes.

Q: Have you ever said you didn't remember details of the agreements? -- Yes.

Q: Did you tell Ty Mattingly and (someone else?) you didn't remember details of the APA? -- Yes.

Q: Could you tell me about it?

Bradford: It was a strange conference call, Ty Mattingly and (?) called and asked if I remembered (the APA).

Q: Do you have any financial interest in the outcome of this trial? -- No.

Q: Does Fusion-io have business relations with IBM?

Bradford: Yes, IBM is a customer of ours and takes our technology and resells it.

Q: Is there any relationship to your testimony?

Bradford: No. When I made my declaration three years ago, I'd not even heard of Fusion-io.

SCO's Mr. Stuart Singer corss-examines him, first referring to exhibit 754 and asks, Is this the memorandum you presented to the Board of Directors on September 15th, 1995?

Bradford: Yes.

Mr. Singer refers to the term sheet and asks, There's no mention of copyrights?

Bradford: Yes. It was only a part of the package that was sent to them. He notes that the name at the bottom of the page is Ty Mattingly so it doesn't look like something he sent to them.

Mr. Singer shows exhibit 638, Mr. Bradford's declaration and reads:

Q: The September 15th memorandum to the board, four pages but no term sheet?
A: Correct.

Bradford: Correct.

Mr. Brennan asks for a sidebar. When they sidebar ended, Judge Stewart calls a fifteen-minute break and the jury leaves.

Judge Stewart asked Mr. Singer if that "will be enough time to find it?" --Yes.

Mr. Brennan offered that if he's wrong, he'll stand and say he is. Judge Stewart said that will not be necessary.

After the break, Mr. Singer reports that Mr. Brennan agrees with him. Mr. Brennan said he concedes the point. Reference is made to his declaration page 68 (Mr. Bradford had stated that the term sheet was with the document). Judge Stewart directs the SCO counsel not to imply ill will to Novell.

Mr. Bradford is called back and the jury returns.

Mr. Singer refers to the term sheet in exhibit 674. Asks to compare it to minutes of board meeting, exhibit Z3. Asks Mr. Bradford if there is any reference to copyrights on the first page of the minutes? -- No.

Q: And the second page at top, any mention of copyrights?

Bradford: No, correct. The only mention is in resolution. He then compares the resolution to the term sheet. He says patents mentioned on term sheet, copyrights not mentioned, license back is on term sheet.

Q: Did you review the TLA?

Bradford: I did not review in preparation for today.

Q: Did you review Amendment 2 for today? -- No.

Q: For your declaration? -- No.

Mr. Singer refers to exhibit 754, memo to the board of September 15th, 1995. He brings up the financial analysis. Asks, You understand Santa Cruz had a several hundred million dollar business at time of the APA?

Bradford: I don't recall.

Q: Next page of term sheet, what does Novell receive from SCO?

Bradford: A portion of licensing revenue from SCO.

Mr. Singer asked Mr. Bradford if he's aware of any different term sheet given to the board between this one and the Board of Directors meeting?

Bradford: Yes, they're fluid.

Mr. Brennan on redirect asks Mr. Bradford to explain what a term sheet is. He answers that they're draft documents exchanged by parties and that they change on a daily basis.

Q: Explain "rhythm of the deal".

Bradford: Obtain outside counsel, give overview of what we'd want and protection we'd want in a document, and they'd go off and negotiate it.

Mr. Brennan asks Mr. Bradford to turn to exhibit Z3, page 2 of the minutes he took of board of directors meeting, the resolutions. What are resolutions?

Mr. Bradford answers that there might be preparatory statements, but the resolutions are the core of the document. He says they are the most important part.

Mr. Singer asks on re-cross, you can have term sheets at beginning, but this one is part of your September 15th submission after the end of the negotiation?

Mr. Bradford replies, I don't know that this is the one that was attached. He concedes he doesn't know of any others.

With nothing further, Mr. Bradford is excused.

End of part 2. Part 3 is testimony of Terry Musika.

Part 3 - Testimony of Terry Musika

Mr. Brennan calls Terry Musika to the stand and while waiting says he will fulfill his highest, and best, purpose setting up some stands and multiple blank poster boards.

He asks Mr. Musika his background. He replies that he has a degree from Indiana University in history and accounting. He said he worked for KPMG and PricewaterhouseCoopers. He then founded several of his own companies, a merger and acquisition company, a bankruptcy financial data research company, and others. The various companies have all been sold. He says he's also operated many companies as a trustee in bankruptcy. He includes running a shipyard building ships during the gulf war, multi-state grocery store chain, charter bus line, etc). His resume is provided in exhibit C33.

Mr. Brennan asks, What have you been asked to do for this litigation?

Musika: I was asked if I could form an independent evaluation as expert as to damages in this case.

With permission of Judge Stewart he goes to the poster boards set up before the jury. Mr. Brennan, Mr. Normand, Mr. Hatch, and Dr. Botosan all took places near the jury where they could view the presentation.

(I had problems following the presentation because he refers to things he's writing on the board and he spoke very fast.)

He said his first approach was to look at what was presented to the court. He looked at Dr. Botosan's "but for" and says he's in agreement with the approach but with a different look.

He says that it was "but for" that one single event, we would would have millions of dollars. He said there are other potential events. He says he'll discuss the decision-making process of someone considering buying.

He draws a diagram on the boards including a server(s) and client laptops. He says that Microsoft monopolizes the client computers, but that we're up here (server).

Mr. Hatch asks if there's a question coming? Judge Stewart directs Mr. Brennan to ask questions to elicit testimony. He does.

Musika said servers are hardware and software. SCO's not claiming to sell hardware. IBM, HP, Sun, they make the hardware. The software comes from three possible choices, Windows, Unix, and Linux. He says there are others, but they are so small as not to consider. He continues, you get into this software through a license sold through one of these vendors.

Linux is open source, you get through the GPL, which he mispoke and called the "Government Public License."

Mr. Brennan asks, So what other ways can a party get this other than through the "General Public License?"

Mr. Hatch say's he glad they finally asked a question, but would like a sidebar.

When they return, Mr. Brennan asks, You were explaining about the vendors?

Mr. Musika continues, you can get Linux through 1) Free GPL, 2) Through paid subscriptions, for example RedHat, and 3) free download. He told the jury they could go and download it now from the Internet free. He said he looked at SCO's business plan. He said the competitors were Windows and Linux.

Mr. Brennan then said he was putting up a demonstrative showing the relative market share of Windows, Linux, and Unix over time. Mr. Hatch objects to its usage, and Judge Stewart sustains because neither it nor its data are in his report.

Mr. Musika continues saying he'd looked at the company. It had made $112 (?) million dollars and lost $211 (?) million.

He says Dr. Pisano looked at the vendor license market. Mr. Musika says there's the paid market and free market and Dr. Pisano lumps them together. He reports Dr. Pisano said we'll only get 19 percent of this. He asks rhetorically, where did he get the 19 percent from? From a web survey conducted by the Yankee Group because he thought it would be a good proxy.

Mr. Musika says he has four concerns about the Yankee Group survey. First, they took the Winodws and Unix market, but they're not the Linux market.

Mr. Brennan asks, Are you suggesting he chose the wrong population for his survey?

Musika: Yes.

Mr. Musika continues, He was asking big companies (using all operating systems). Mr. Musika returns to the witness stand.

Second, A slide of data from the Yankee Group 2004 report is shown. He says it's a mix of Windows, Unix, and Linux. The survey only shows responses from large companies of over 5,000 employees, so it's not representative.

Mr. Musika says, Third, The indemnification -- they're different products.

Fourth, they did not consider the price of the license. He says, Take health care. Everyone wants health care. But how much do you care? How much will you pay? As price goes up, we buy less, price goes down we buy more.

Mr. Brennan asks, Do you believe there was any other reason would not buy?

Musika: Yes, seven reasons. Mr. Musika said SCO didn't get their millions of dollars because:

1) SCO doesn't know its target customers and they can't identify who downloaded.

2) Blind mailing. Some of the companies they sent their blind mailing to came back and said they don't even use Linux.

3) Inability to show Unix is in Linux.

4) Inability to reach (targets?). Expressed in their own 10K, "We do not have a history of profitable operation. Future SCOsource revenue uncertain. Lack of historical data, unable to predict, etc."

5) Public image -- target customers are the users of Open Source. The public has acted adversely. SCO's plan is based on targeting a market, and selling where they're the "most hated company in tech."

6) The Gartner Group, others, were telling target customers not to buy because SCO's claim is unfounded and arbitrary.

7) Weakness in developing a well thought-out plan. For a company (projecting hundreds of millions in revenue) one would expect to see a business plan.

On return from the sidebar, Mr. Hatch said that, In the interest of time (he's moving along quicker). He asks something about Deutsche Bank. Mr. Musika answered, Dr. Botosan pulled certain numbers from Deutsche Bank's report. He reads their cautionary statement, The risks are huge, ... speculative, ... extremely high risk.... If it doesn't succeed in proving infringement, it will fail. Mr. Musika says you have to take this into account.

Mr. Brennan asks, So summing up Pisano?

Mr. Musika moves back to the boards and puts up a clean one. He said, approach: SCO has plan to sell based on pay or sue. SCO wants payment from the Open Source community. The community asks themselves, "Do I infringe or not?" If they infringe they pay. If not, no. He asks, What does Deutsche Bank say? "Shares worth zero if not proved" and that's what I'd say, don't buy until infringement is proven.

Mr. Hatch cross-examines asking, What are you qualification? Do you have training in accounting?

Mr. Musika answers, degree in history and public finance. He has a CPA, and his expertise comes from experience.

Mr. Hatch asks about his last company, Invotex, How much are you charging?

Musika: $525/hr

Q: How many hours?

Musika: I don't know.

Mr. Hatch asked how much he was paid, and Mr. Musika answered the payment goes to the company, that he's salary.

Mr. Hatch asked if he has an equitable interest in the company? Musika says he sold the company in 2007, no equity interest. He said he's worked more in the last month than he had on the report.

Q: When the report was made, did you have an equity interest?

Musika: Yes, he was still an equity owner.

Q: How much was paid for the report, over $200,000?

Musika: That's fair for all the people who were working on it.

Q: At the time of the reports, July 2007, what percent of your time was for expert testimony?

Musika: 75 to 85 percent.

Mr. Hatch asks, That's the time you spent on expert testimony or other litigation related matters? -- Yes.

Q: The bulk of your livelihood was litigation related?

Musika: No, investments pay us more.

Q: It was the bulk of the money you receive for your time?

Musika: It varies from time to time, but yes.

Q: You were hired to evaluate at the time you made your living as an expert?

Musika: Bulk of time, but not earnings; those were investments.

Q: You've never written papers on tech licensing?

Musika: No, I've taught courses. He says he's written hundreds of business plans.

Mr. Hatch says, Dr. Pisano held a chair at Harvard, he presented papers, etc. You have no peer-reviewed papers? Mr. Musika replies that he feels for people in academia who must publish or perish. Judge Stewart directs him to answer the question. He answers, No.

Q: You don't disagree with the "but for" world?

Musika: No, it is part of what damage experts rely on.

Mr. Hatch refers to exhibit R21, the Deutsche Bank report and asked, You remember when you talked to the jury where you said zero? -- Yes.

Mr. Hatch, The stock worth zero?

Musika: Yes, that's what the report said.

Mr. Hatch, referring to the report, asks what the value of the stock was at the time of the report?

Musika: $16

Q: The authors of the report took risks into account in their report? --Yes.

Q: With all that in play, what did they say?

Musika: Brian Skiba says $45. Deutsche Bank says this is not Deutsche Bank, this is Brian Skiba.

Q: Deutsche Bank makes market in SCO stock?

Musika: No, not at time of the report.

Mr. Hatch asks, Does Deutsche Bank have a connection to SCO?

Musika: Deutsche Bank no, not at this time. Brian Skiba, maybe.

Q: Deutsche Bank is estimating $10 million over three quarters?

Mr. Musika reads from the report, "Difficult to predict." These are for vendor licenses, and SCO's trying to force-fit this for the other license.

Mr. Hatch asks something about Deutche Bank using a conservative estimate, there was an objection, there was some disagreement over something and Judge Stewart called a break.

After returning from break Judge Stewart asks what their minutes are. I think they replied that Novell is at 52 minutes left and SCO 22. SCO also told Judge Stewart they reserve their Rule 50 motion as Novell had.

After jury returns, Mr. Hatch asks Mr. Musika, Bottom line.. you never calculated any number other than zero? -- No.

Q: Did you conduct a survey of consumers? -- No.

Q: You testify her analysis is deficient?

Musika: It doesn't take the issues into account.

Q: Were you impressed with her work? --No.

Q: Weren't you so impressed with her work that after reading her report you contacted her to hire her? -- No.

Mr. Brennan asked for a sidebar. When they returned, Mr. Hatch continued.

Q: When you had this correspondence with Dr. Botosan, didn't you say your firm's greatest challenge is finding qualified people to handle the volume?

Mr. Musika equivocates, but agrees that it's always difficult and that he doesn't remember corresponding with her.

Mr. Brennan examines Mr. Musika on re-direct asking, Is there a connection between Brian Skiba and Darl McBride?

Musika: Yes, that's correct.

Demonstrative displayed showing some excerpt from the Deutsche Bank report and an email from SCO's Bingham to Deutsche Bank and (?).

Mr. Brennan asks, What to you believe about a connection?

Musika replies that when examining Deutsche Bank he found they are not independent. Found an email in SCO's files from (someone at SCO) to (someone at DB or Mr. Skiba), "Please book a car and hotel for Darl (something) Darl and Bingham stay at Skiba's ocean villa" (apparently in Caen, France)

Mr. Musika said that as an auditor, he's not sure if there's any social connection, but it raises red flags.

Mr. Hatch examines Mr. Musika further on re-cross asking who the other author of the Deutsche Bank report was? Mr. Musika provides the name.

Q: Do you have anything bad to say about him? -- No.

Q: When was the report written? -- October 14th, 2003.

Q: What was the date of the conference (that presumably the email was arranging lodging for)?

Musika: Email was dated September 20th, 2004.

Mr. Hatch asks, A year later?

Musika: Yes, he says it raises red flags but concedes no evidence of relationship at time of report.

Novell rests their case in chief and SCO starts calling their rebuttal witnesses.

End of part 3. Next part rebuttal testimony of Robert Frankenberg and Dr. Botosan and final matters.

02:41 AM EDT

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