A Blizzard of Motions in Limine in SCO v. Novell(Groklaw)

Ah, the motions in Limine.

In every trial there is always evidence that one side or other needs to have eliminated. And often times there are good reasons for doing so.

You may recall that during the summary judgment motions and decisions there was significant discussion of about the APA and everyone's opinion about what it meant. And, of course, Judge Kimball discarded much of that information simply because it was parol or oral evidence about the APA.

Now we see that the proposed testimony from a number of witnesses is being asked to be excluded in advance (that is what the motions in Limine mean). And that means the jury never becomes aware of it.

And this is important.

It determined how the summary judgment was reached. And it should also determine how the decision at trial is reached.

The reason is very elementary. And the reasons apply even for those jurisdictions that do not have the parol evidence rule as such.

When you interpret a contract you are trying to decide what the agreement really was. This process is often described as determining what was in the minds of the two parties. In other words, what did they actually agree on. It often referred to as the “meeting of the minds”.

Another way to look at this is if you find that one party was thinking about one thing and the other was thinking about something else, no meeting of the minds actually took place. And hence, no contract.

Now you might be thinking that a contract does always exist if there is a document and a bunch of people signed it. But, that is not necessarily the case. The court or jury could decide that the two parties never did actually come to a common agreement. And in such a case, the contract or agreement is void.

So you have to inquire into the negotiations and the thinking of the actual parties involved in the negotiations.

Naturally, you do not take into account the views, perspectives or opinions of third parties not involved in the negotiations or third parties not responsible for constructing the agreement. They were not part of the process. And what they may have understood or misunderstood is simply not relevant.

Imagine what the legal world would be like if you had an employment contract and the opinion of some outside third party was able to change the terms of your employment. Not your employer. And not you. But, someone else who was not involved in your employment and was not even privy to the terms of your agreement. All hell would result.

So needless to discuss again, the first thing the court does is look to the agreement itself. If it is clear and unambiguous, the writing stands and determines what the contract was.

If it is not clear and perhaps is ambiguous, then the court may have to look to outside evidence. But, even in that situation, the best evidence comes from those directly involved in the negotiations. Testimony from the officers of the corporation having the responsibility to conduct the agreement is important. Testimony from attorneys helping to negotiate or even draft the agreement is important.

Testimony from those not directly involved simply is not relevant.

And you have to understand that even in those jurisdictions where the parol evidence rule does not exist (and there are many), testimony from people not taking part in the negotiations or not having the responsibility to come to some agreement is just not relevant.

In other words, such testimony is often discarded, ignored or simply given very little weight even if the parol evidence rule has not been adopted for a particular jurisdiction.

And that means that you are not likely to arrive at a different decision whether or not the parol evidence rules applies.

And this is important.

Here we see many motions in Limine using the phrase “Lack of Personal Knowledge and Violation of Parol Evidence Rule”. And that is simply saying they were not there. And it is only the minds of those who were there that is important.

And you may recall that even Judge Kimball commented on the fact that the lawyers for OldSCO (original Santa Cruz Operation) were not on the witness list. And this is where it kills SCO.

If you are going to listen to any witnesses in order to ascertain what the terms of the APA were supposed to be (assuming the written version is ambiguous) the lawyers on both sides of the original agreement are the most important witnesses.

Novell has testimony from Novell lawyers. There is evidence of the give and take of negotiations, etc. That kind of evidence can be useful if the writing itself is not clear. But, SCO has not proffered any evidence of that kind. Rather it has only proffered evidence by confused and misunderstood third parties.

The court is just not going to want to hear from anyone that can only repeat the phrase “lock, stock and barrel” yet is confused as to why the copyrights were not actually transferred.

The only credible outside evidence suggests that the copyrights were not transferred because there was no agreement to do so.

And right here is where the bite takes hold. Evidence by external and confused parties is simply excluded. It is called an “evidence rule” for a reason. But, as I have explained above, even in jurisdictions where the rule does not exist, the evidence is often times discarded for not being relevant or simply not credible. In other words, those jurisdictions that do not have the rule find that they do not need it because they can eliminate that kind of testimony by other means. And they routinely do so.

But, here we are. “Lack of Personal Knowledge and Violation of Parol Evidence Rule” meaning they were not there at the time and listening to their testimony violates a rule against poor quality evidence.

The negotiators, lawyers and officers involved get to talk and everyone else waits out in the hallway. It just does not matter what they think.

Just because the appellate court decided that a trial should be conducted before a jury does not mean that the appellate court thinks that such external evidence holds some value. It really only means that they prefer a more formal process than just a summary judgment. Motions in Limine is part of that formal process.