This is an expanded version (including some photos, links to some exhibits, and some video snippets of O'Gara speaking) of the deposition transcript that is publically available from the U.S. Court of Appeals for the Tenth Circuit, where it is on file at pages 10022-10050 (at tab 54 in volume 29, as Exhibit 66 to what was filed under seal in the district court as docket number 308) of the appellant's appendix that was filed on March 6, 2009 in SCO Group, Inc. v. Novell, Inc., No. 08-4217 (10th Cir.).

Scanned images of the transcript can be found in http://scofacts.org/Novell-OGara-deposition.pdf, and a straight plain-text rendition is in http://scofacts.org/Novell-OGara-deposition.txt
(Scofacts.org is not endorsed by the "SCO Group" Delaware corporation, nor by any of the registered owners of "SCO" trademarks.)
RCS revision info: $Id: Novell-OGara-deposition.html,v 1.17 2010/03/27 21:04:41 al Exp $

Videotaped Deposition of Maureen O'Gara

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
THE SCO GROUP, INC., a Delaware Corporation, Plaintiff vs. NOVELL, INC., a Delaware Corporation, Defendant.	No. 2:04-cv-00139

Friday, March 23, 2007, 11:00 a.m.
Roslyn Claremont Hotel
1221 Old Northern Blvd, Roslyn NY 11576

Esquire Deposition Services, Job No. 192768

Reporter: Joan Urzia, RPR

Dramatis Personae

	Robert Calvert Videographer Esquire Deposition Services (1-800-944-9454) 216 E 45th St, New York NY
	Mauricio Alfredo Gonzalez (California Bar #230614, admitted 2004) Attorney for Plaintiff The SCO Group, Inc. Boies Schiller & Flexner LLP 333 Main St, Armonk NY 10504 (image from `http://www.bsfllp.com/lawyers/data/:v_get/latest/0856/_res/id=sa_Pic1`)
	Michael Allen Jacobs (California Bar #111664, admitted 1983) Attorney for Defendant Novell, Inc. Morrison & Foerster LLP 425 Market St, San Francisco CA 94105 (image from `http://mofo.com/images/attorney/235.jpg`)
	Carolyn Killeen Foley (New York Bar #2486108, admitted 1992) Attorney for Witness Maureen O'Gara Davis Wright Tremaine, LLP 1633 Broadway, New York NY 10019 (image from `http://www.dwt.com/portalresource/`[...]`/FoleyCarolynnew.jpg`)
	Maureen O'Gara Witness for Plaintiff The SCO Group, Inc. (image from `http://res.sys-con.com/author/2390/Maureen%20OGara%20120.jpg`)

To get some idea of what O'Gara looks and sounds like, and a basis for better assessing the extent to which a line of hers in the transcript was intended literally, or more as jocularity or sarcasm, watch a bit of the short-lived Maureen O'Gara Show on sys-con.com. The first episode, recorded February 25, 2005, is described at http://sys-con.com/node/48390, and the full hour-long video can be found at http://sys-con.com/node/77460, http://gemsres.com/story/apr05/77460/77460_tv_splash644.swf, or rtmp://flash-r1.vitalstreamcdn.com/syscon_vitalstream_com/_definst_/013maureen_office.flv.

In case those links don't work, here are two very brief snippets:

First, a 54-second clip of O'Gara saying that "the SCO-IBM case is probably the most important thing that's happening in technology today ... the single most important thing ... a lot of lives hang on how that case goes" (starting at 36:07 into the episode):

And here's a 43-second sample of O'Gara answering a question about Groklaw (starting at 12:04 into the episode):

Transcript

(p. 4:2) THE VIDEOGRAPHER: We are now on the record. This is the video operator speaking, Robert Calvert, of Esquire Deposition Services, offices located at 216 East 45th Street, New York, New York.

(p. 4:8) Today's date is March 23, 2007. The time on the video monitor is 11:24 a.m.

(p. 4:11) We are here at the Roslyn Claremont Hotel, located at 1221 Old Northern Boulevard, Roslyn, New York to take the videotaped deposition of Maureen O'Gara in the matter of the SCO Group Incorporated, a Delaware corporation versus Novell Incorporated, a Delaware corporation.

(p. 4:19) The venue of this case is the United States District Court for the District of Utah, Central Division. The index number is 2:04-CV-00139.

(p. 4:23) Will counsel please voice identify yourselves and state whom you represent.

(p. 5:2) MR. GONZALEZ: Mauricio Gonzalez of Boies Schiller & Flexner for plaintiffs the SCO Group.

(p. 5:5) MR. JACOBS: Michael Jacobs from Morrison & Foerster for defendant Novell.

(p. 5:8) MS. FOLEY: Carolyn Foley from Davis Wright Tremaine for the witness Maureen O'Gara.

(p. 5:11) Before we start, I'd just like to make a statement on the record, which is that the witness is here pursuant to subpoena, but she has notified the SCO Group, the party issuing the subpoena, that she is asserting the Reporters Privilege.

(p. 5:18) We have been convinced that the Reporters Privilege has been overcome with regard to a certain conversation and that will be the inquisition or the inquiry today will be limited to, at least as far as sources will be limited to that conversation, and we will assert the privilege as to any other, as appropriate in any other instance.

(p. 6:4) MR. GONZALEZ: Thank you, Ms. Foley. We appreciate that.

(p. 6:7) MAUREEN O'GARA, called as a witness, having affirmed to testify truthfully before a Notary Public, was examined and testified as follows:

(p. 6:13) EXAMINATION BY MR. GONZALEZ:

(p. 6:15) Q. Good morning, Ms. O'Gara.

(p. 6:16) A. Good morning.

(p. 6:17) Q. Please let me know if I need to clarify or restate any of my questions today.

(p. 6:20) A. Okay.

(p. 6:21) Q. Is that okay?

(p. 6:22) Have you ever been deposed before?

(p. 6:24) A. Yes.

(p. 6:25) Q. Have you been deposed in this case?

(p. 7:3) A. No.

(p. 7:4) Q. So in your experience in other depositions do you have a sense of how this will proceed generally?

(p. 7:7) A. Yes.

(p. 7:8) Q. Great.

(p. 7:9) What do you currently do for a living?

(p. 7:11) A. I'm a journalist.

(p. 7:12) Q. And how long have you been a journalist?

(p. 7:14) A. Since about 1972.

(p. 7:15) Q. Do you cover a certain particular industry?

(p. 7:17) A. Yes, I cover the computer industry.

(p. 7:19) Q. And how long have you been covering the computer industry?

(p. 7:21) A. Since 1972.

(p. 7:22) Q. What publication do you currently work for?

(p. 7:24) A. I work for a publication called Client Server News, or I should really say that I work for a company called G2 Computer Intelligence which has several publications which I'm connected with, and one of them is Client Server News.

(p. 8:6) Q. And in 2003 what publication did you write for?

(p. 8:8) A. That same publication.

(p. 8:9) Q. Is that an on-line publication or a print, hard print?

(p. 8:11) A. It was at the time both print and on-line. On-line insofar as it was e-mailed to its subscribers.

(p. 8:14) Q. If you can think back to the early part of 2003, what subjects did you generally cover within the computer industry?

(p. 8:18) A. Well, we were covering, we divide the world up into operating systems. So we were following at the time NT and Linux.

(p. 8:22) Q. Are you aware that Novell has issued an announcement claiming that Novell and not SCO owns the UNIX copyrights?

(p. 8:25) A. Yes.

(p. 9:2) Q. Do you recall that that announcement was first made on or around May 28, 2003?

(p. 9:5) MR. JACOBS: Objection. Leading.

(p. 9:7) Q. You can answer the question.

(p. 9:8) A. Yes.

(p. 9:9) Q. You do have a recollection --

(p. 9:10) A. Yes.

(p. 9:11) Q. -- of that?

(p. 9:12) And do you recall writing about that announcement?

(p. 9:14) A. Yes.

(p. 9:15) Q. I'd like to show you a document that will be marked as Exhibit 1080.

(p. 9:17) (Whereupon, Exhibit 1080 was marked for identification.)

(p. 9:19) Q. It's been bate stamped at the bottom SCO 1270695 and it runs in sequence through SCO 1270700.

(p. 9:22) It's a document that contains an article entitled Novell to Try to Shoot Down SCO IP claims, by Maureen O'Gara.

(p. 9:25) Do you see that article within this document?

(p. 10:3) A. Yes, I do.

(p. 10:4) Q. Does that appear to be the document in which we were just talking about in which you wrote about Novell's announcement about its alleged ownership of UNIX copyrights?

(p. 10:9) A. Yes.

(p. 10:10) Q. And what is the date of the article?

(p. 10:12) A. It's dated May 28.

(p. 10:13) Q. Is that consistent with your recollection of the article and the announcement?

(p. 10:16) A. Yes.

(p. 10:17) Q. Great.

(p. 10:18) Before you published this article, did you speak with Novell?

(p. 10:20) A. Yes.

(p. 10:21) Q. Did you speak with someone named Chris Stone of Novell?

(p. 10:23) A. Yes.

(p. 10:24) Q. And what was Mr. Stone's position at Novell at the time?

(p. 11:2) A. I believe he was vice chairman.

(p. 11:3) Q. Would it be safe to say that you understood him to be a senior executive under whatever title he may have had?

(p. 11:6) A. Yes.

(p. 11:7) Q. And what did Mr. Novell tell you --

(p. 11:9) A. Mr. Stone.

(p. 11:10) Q. I'm sorry, thank you.

(p. 11:11) What did Mr. Stone tell you about Novell's public announcement in which it was going to assert its purported ownership of the UNIX copyrights?

(p. 11:15) A. Well, he informed me of the substance of what this story is about, that they were going to, what's the right word, assert their ownership.

(p. 11:19) Q. Did he say anything about the reasons why they were issuing that announcement on that date?

(p. 11:22) A. Yes, he did.

(p. 11:23) Q. And what did he say?

(p. 11:24) A. He said they were doing it because SCO's earning were that day.

(p. 12:2) Q. And did he say anything about the effect, the intended effect of the announcement on that date?

(p. 12:5) A. The reason that they were doing it, as I understood it, was to confound SCO's stock position.

(p. 12:8) Q. When you say confound SCO's stock position, can you be a little more specific or can you clarify it in any way?

(p. 12:11) A. Well, I think the object of the game was to throw a monkey wrench into the works.

(p. 12:14) Q. And can you explain that, that metaphor, a little further?

(p. 12:16) MS. FOLEY: I'm going to object to the form of the question.

(p. 12:18) Do you understand?

(p. 12:19) Q. Well, when you say that they were trying to confound or throw a monkey wrench, can you explain that?

(p. 12:22) A. They were trying to upset the stock price.

(p. 12:24) Q. And when you say stock price, whose stock price are you referring to?

(p. 13:2) A. SCO's.

(p. 13:3) Q. Did Mr. Stone say anything about harming SCO?

(p. 13:5) MR. JACOBS: Objection. Leading.

(p. 13:7) A. Do I answer that then?

(p. 13:8) Q. Yes, you may.

(p. 13:9) A. Logically, there wouldn't be any other reason.

(p. 13:11) Q. So you understood that to be the intent?

(p. 13:13) A. That's what I understood.

(p. 13:14) Q. If we may go back to Exhibit 1080, the article that you wrote on May 28, 2003 --

(p. 13:17) A. Actually, I wrote it the night before.

(p. 13:19) Q. And published it on May 28, 2003, is that accurate?

(p. 13:21) A. That's accurate.

(p. 13:22) Q. Thank you.

(p. 13:23) Do you recall --

(p. 13:24) A. I don't get up at 8:15 in the morning and put these things out.

(p. 14:2) Q. Do you know if there's any reference to your conversation with Mr. Stone that we've been talking about in this article?

(p. 14:6) A. Yes, I do, in the third paragraph.

(p. 14:8) Q. Okay.

(p. 14:9) A. It begins, "The letter which --

(p. 14:10) Q. You can go ahead and read that into the record.

(p. 14:12) A. Is that all right?

(p. 14:13) Q. Yeah.

(p. 14:14) A. "The letter which Novell is supposed to post to its website today right before SCO reports its quarterly results."

(p. 14:17) Q. Can you continue?

(p. 14:18) A. "Says that Novell owns the IP and that SCO merely shares in certain rights that it acquired from Novell by way of the original SCO, the old Santa Cruz operation."

(p. 14:23) Q. And did you write that paragraph as part of this article?

(p. 14:25) A. Yes

(p. 15:2) Q. And again, as you sit here today, is it your understanding that that reflects your conversation with Mr. Stone?

(p. 15:5) MR. JACOBS: Objection. Leading.

(p. 15:7) Q. Does that reflect your conversation with Mr. Stone?

(p. 15:9) A. Yes.

(p. 15:10) Q. The same conversation you just testified about?

(p. 15:12) A. Yes.

(p. 15:13) MR. GONZALEZ: Thank you. I have nothing further.

(p. 15:16) EXAMINATION BY MR. JACOBS:

(p. 15:18) Q. Ms. O'Gara, do you have any notes of your conversation with Mr. Stone?

(p. 15:20) A. No.

(p. 15:21) Q. Did you have notes at one point?

(p. 15:22) A. Perhaps.

(p. 15:23) Q. Why do you say perhaps?

(p. 15:24) A. Because I don't clearly remember.

(p. 16:2) Q. Is it your practice to take notes as you're talking with sources?

(p. 16:4) A. My notes are more in the way of just phrases.

(p. 16:6) Q. Phrases that people say to you?

(p. 16:7) A. Yeah.

(p. 16:8) Q. So you can capture the words they used?

(p. 16:10) A. Right.

(p. 16:11) Q. What do you recall of the exact words Mr. Stone used with you in reporting to you the planned announcement?

(p. 16:14) A. I can't

(p. 16:15) Q. Were you on the phone?

(p. 16:16) A. With him?

(p. 16:17) Q. Yes.

(p. 16:18) A. Yes.

(p. 16:19) Q. What phone were you on?

(p. 16:20) A. What do you mean?

(p. 16:21) Q. Were you on a house phone, do you have a cell phone?

(p. 16:23) A. Oh, I was on a standard land line.

(p. 16:25) Q. And where was that land line located?

(p. 17:3) A. In my office.

(p. 17:4) Q. And where is that office?

(p. 17:5) A. That office was at 323 Sea Cliff Avenue in Sea Cliff.

(p. 17:7) Q. What was the phone number you were calling him from?

(p. 17:9) MR. GONZALEZ: Objection.

(p. 17:10) A. Do I answer that question?

(p. 17:11) My telephone number was 516-759-7025. That's the main number. But there are a number of lines on that and it's a rollover kind of thing, and so I would never know what line I was on, whether it was an incoming call or an outgoing call.

(p. 17:18) Q. So are you saying as to this conversation with Chris Stone you don't recall whether it was incoming or outgoing?

(p. 17:21) A. That's correct.

(p. 17:22) Q. Did you have an understanding where Mr. Stone was purportedly calling you from during this call?

(p. 17:25) A. I beg your pardon?

(p. 18:2) Q. Did you have an understanding where Mr. Stone was during this phone call?

(p. 18:4) A. I believe he was in the Novell offices.

(p. 18:6) Q. Just back to 323 Sea Cliff Avenue, is that a personal office of yours or an office of G2?

(p. 18:9) A. It was G2 Computer Intelligence was the, what do you call it, the tenant.

(p. 18:11) Q. Is G2 your company?

(p. 18:12) A. Yes.

(p. 18:13) Q. So but the entity that -- well, let me start over again.

(p. 18:15) Would the phone line be in the name of Maureen O'Gara, or would it be in the name of G2?

(p. 18:18) A. G2.

(p. 18:19) Q. You don't recall the exact words Mr. Stone used. What is your best recollection of what he said to you in the particular conversation you were recalling for Mr. Gonzalez?

(p. 18:24) A. To best answer that question, I'd have to explain that most business journalists are not that aware surprisingly enough of the market, all right? You have to remind yourself that there is such a thing as the stock market, all right? Maybe the guys at Barons are different, but most of us aren't, you know, that's not a hypersensitivity. And Chris drew my attention to the fact that there was, that SCO was supposed to report its numbers on Wednesday, the 28th, and that's why this phrasing in here even appears. Otherwise, I would never have made the connection. He was the one who drew my attention to the fact that Novell is supposed to post to its website today right before SCO reports its quarterly results. That's the burden of what he told me.

(p. 19:19) Q. When you were responding to questions from SCO's counsel, it seemed to me you were being careful to distinguish between what Mr. Stone said to you and what you inferred from what he said, or what you understood the purport to be. So with that distinction in mind, let me follow up a little bit on that, on what your take away was versus what he actually said.

(p. 20:4) MR. GONZALEZ: Objection.

(p. 20:5) Q. Did he say to you anything more than -- with respect to the issue of SCO's announcement, did he simply draw your attention to the fact?

(p. 20:9) A. To SCO's announcement?

(p. 20:10) Q. Yes.

(p. 20:11) A. You mean their earnings report?

(p. 20:12) Q. Correct.

(p. 20:13) A. Okay.

(p. 20:14) Q. Did he say anything more than SCO is supposed to report its quarterly results on May 28th?

(p. 20:17) A. He led me to understand that the reason that they were doing it on the 28th, that they were posting their cease and desist letter was because SCO was, had its earnings report.

(p. 20:22) Q. So I understand you to be saying that he led you to understand something, but I need to --

(p. 20:25) A. He said --

(p. 21:2) Q. You're onto it. I'm trying to figure out what you took away from it versus what he actually said to you.

(p. 21:5) A. There was no lack of clarity. There was no lack of clarity, sir.

(p. 21:7) Q. Well, then what was clear in what he, in his words versus what you took away from it?

(p. 21:10) A. He was saying to me that the reason that they were doing this was because of SCO's earning report. I'm sorry, you know, it's just, that's just the way it is.

(p. 21:15) Q. You don't have to apologize to me. I just want your truthful testimony under oath here so that the record is clear.

(p. 21:19) A. Right. It's not -- okay, go ahead.

(p. 21:21) Q. And so my question to you is, is it your testimony under oath that Mr. Stone conveyed to you in words that the reason Novell was doing this announcement on the date it was doing it was so it would be coincident with SCO's report of its quarterly results?

(p. 22:4) MS. FOLEY: I'm going to object to that as asked an answered, and I'll let you answer again.

(p. 22:7) A. Yes.

(p. 22:8) Q. And what words or substance of the conversation do you precisely recall him using in order for him to convey that as opposed to you to infer it?

(p. 22:12) MS. FOLEY: Object to the form of the question. Asked and answered.

(p. 22:14) Q. You can answer.

(p. 22:15) A. I still answer?

(p. 22:16) Q. Please.

(p. 22:17) A. Maybe it was the laughter that I remember most about it.

(p. 22:19) Q. All right. So tell me about that.

(p. 22:21) A. Well, he basically -- I just -- maybe the right way to characterize it was chortled.

(p. 22:24) Q. And what do you recall of the chortling?

(p. 23:2) A. That was at the end of our conversation. It was shortly after we hung up. I think we had been on the phone for a little bit of time going through all of this. He explained to me, and that's why it appears in this story, that the coincidence appears in this story because he drew my attention to it.

(p. 23:10) Q. And did -- so I think we have chortling at the end of the conversation?

(p. 23:12) A. Uh-huh, about that. It wasn't, you know, like -- it was about the fact that they were putting out their statement on that day. That was what the laughter was about.

(p. 23:17) Q. So let me see if I've accurately captured the back and forth over the last few minutes.

(p. 23:20) A. Okay

(p. 23:21) Q. Mr. Stone said to you, one, we're releasing this statement about ownership of the UNIX copyrights; two, SCO is posting, it is reporting its quarterly results on the same day as our announcement; and three, he chortled?

(p. 24:3) MS. FOLEY: Object to the form of the question. The transcript will speak for itself.

(p. 24:6) A. I think there's a step missing in there, sir --

(p. 24:8) Q. Please.

(p. 24:9) A. -- if I'm not mistaken

(p. 24:10) Q. You want me to read back what I said?

(p. 24:12) A. Why don't you.

(p. 24:13) Q. Let me see if I have accurately captured the back and forth over the last few minutes. I'm going to redo it a little bit better now that I can see the way I did it. One, Mr. Stone --

(p. 24:18) A. You get to improve, is that fair?

(p. 24:20) Q. Yes, and you do too. Life is about improvement.

(p. 24:22) One, Mr. Stone said to you we are releasing a statement about ownership of the UNIX copyrights; two, Mr. Stone drew your attention to the fact that SCO was reporting its quarterly results the next day; and three, Mr. Stone chortled.

(p. 25:4) A. Okay. There is an absence of causality in there.

(p. 25:6) Q. You've put your finger on my question.

(p. 25:8) A. All right. So there's the step that's left out is that there was a connection between step A and step B.

(p. 25:11) Q. And my question is what did Mr. Stone say that specifically identified that connection as opposed to you inferring from the --

(p. 25:15) A. I'm sorry, I'm not inferring, all right? I don't remember the exact words, but it wasn't an inference. It was a statement. I would only be putting words in his mouth, I can't remember it, the exact words, but the meaning was quite clear.

(p. 25:22) Q. Well, let me ask you this, if you look at your --

(p. 25:24) A. Article?

(p. 25:25) Q. Article, thank you, on May 28, 2003, Exhibit 1080.

(p. 26:3) A. Yes.

(p. 26:4) Q. It looks to me that the way you reported it, to use the terminology you and I have started to adopt here --

(p. 26:7) A. Yes.

(p. 26:8) Q. -- you reported one and two, but not causality?

(p. 26:10) A. Right.

(p. 26:11) Q. Do you agree with that?

(p. 26:12) A. Yes.

(p. 26:13) Q. Why is that?

(p. 26:14) A. I didn't know what to do with it, quite frankly, and the story wasn't about -- from my point of view the story wasn't about that.

(p. 26:18) Q. And why is that?

(p. 26:19) A. Because I'm not a lawyer.

(p. 26:20) Q. You saw no news value in a statement to you by a Novell executive that conveyed to you that the reason Novell was releasing its statement on a particular date was because SCO was reporting its quarterly results that same date?

(p. 27:2) A. I know that that seems in isolation like that should be really important, okay, but there were so many issues in this very complicated matter that that would make a great sidebar or a follow-up maybe, but we were talking about something else in this story and I thought -- I didn't know where it was all going to go, and I've known Chris a long time. Sometimes I get protective.

(p. 27:12) Q. Did you subsequently convey to someone at SCO that you had heard from Chris Stone that the reason Novell had issued its statement that day was because SCO -- was to time it with the earnings announcement?

(p. 27:18) A. As far as I remember, and according to the evidence in front of me here, we were breaking this news. Okay?

(p. 27:21) In the normal course of reporting, I went back to the other guy, being SCO, who as far as I know didn't know anything about this, for a statement.

(p. 27:25) During the course of my asking for that statement form its public relations people, as a lever to get that statement I repeated what Stone had said to me.

(p. 28:6) Q. What exactly did you state when you repeated what Stone had said to you?

(p. 28:8) A. Whatever his exact words were at the time. I'm sorry.

(p. 28:10) Q. Were you reading from notes?

(p. 28:11) A. I don't think you had to because it was just a sentence.

(p. 28:13) Q. Your best recollection is you had no notes?

(p. 28:15) A. No, I have notes, but you know, they're not understandable, they're not notes like full sentences, they're not verbatim everything. If I took shorthand, you'd be handy to have around.

(p. 28:20) Q. Do you have those shorthand notes still?

(p. 28:22) A. No, I don't do shorthand.

(p. 28:23) Q. I used the word inadvisably. You're being more precise than I am.

(p. 28:25) A. Yes, yes.

(p. 29:2) Q. Do you have the notes of the short phrases still?

(p. 29:4) A. No.

(p. 29:5) Q. What is your practice of the short phrases, if you will, in terms of whether you keep them or not?

(p. 29:8) A. I throw everything out.

(p. 29:9) Q. When do you do that?

(p. 29:10) A. If not when the story is written, then every week, and I've been doing that since 1972.

(p. 29:13) Q. When you conferred with the public relations people at SCO, first of all, were you conferring with Blake Stowell?

(p. 29:17) A. Conferring? I don't confer with the PR people. I called Blake Stowell, yes.

(p. 29:20) Q. What did you mean, why did you object to the word confer?

(p. 29:22) A. I find it difficult to use that verb, when I'm talking about a flak, no. You don't have conferences with PR people.

(p. 29:25) Q. You called him up, you told him --

(p. 30:3) A. From the same phone I talked to Chris one.

(p. 30:5) Q. You told him what Chris had said to you and you asked him whether he had any comment?

(p. 30:8) A. No. I told, I said to them what I knew, which is the substance of this story, that the next day that they were going to issue this cease and desist letter, and in order to get a statement from SCO as a lever, I threw in what Chris had said. It wasn't as scandalous to me as a regular business reporter than it has become under these circumstances. Do you understand what I mean?

(p. 30:18) Q. I'm trying to figure out which of the -- I think setting aside the chortling for a minute, we've talked about three components again, the fact of the date of the planned issuance of the Novell statement, the fact of the date of the SCO earnings release and the causal relationship between one and two. A Uh-huh.

(p. 31:3) Q. And I'm trying to figure our if you told SCO one, one and two, or one two and three.

(p. 31:6) A. If I remember my one, two and three correctly, the answer is on, two and three.

(p. 31:9) Q. So then I'll say that in more colloquial terms, you conveyed to Blake Stowell that Chris Stone had said to you --

(p. 31:12) A. Did I do something with your wire? Excuse me. Sorry. I moved.

(p. 31:14) Q. You conveyed to Blake Stowell that Chris Stone had said to you that Novell was issuing its statement in order to time its release with SCO's report of its earnings?

(p. 31:19) A. Among the many things -- the substance of the statement seemed to take priority under these, in my world the substance of the statement was the primary fact. I was trying to get a reaction to that.

(p. 31:25) Then when I noticed hesitancy on the art of Mr. Stowell to give me a reaction to that, I pushed further and used the expressions that Stone had said to me, and the substance of which is that the reason that they were doing it tomorrow was because you're going to have your earnings call.

(p. 32:9) Q. And you're confident, as you sit here today, it's 4 years later, that you didn't embellish on what Mr. Stone had said to you?

(p. 32:13) A. No.

(p. 32:14) Q. In order to elicit comment from Mr. Stowell?

(p. 32:16) A. No, absolutely not.

(p. 32:17) Q. You're not confident, or you're confident you did not?

(p. 32:19) A. I am absolutely confident that I did not. That would be a lie.

(p. 32:21) Q. Would you regard that as a breach of your ethics as a journalist?

(p. 32:23) A. Absolutely.

(p. 32:24) Q. It's sort of like cross-examining a witness when you don't have a basis for the cross-examination?

(p. 33:3) A. Yeah, you guys can do it, but I can't.

(p. 33:5) Q. We can't either.

(p. 33:6) So with that in mind, how would you describe your relationship with Mr. Stowell?

(p. 33:9) A. As normal.

(p. 33:10) Q. What does normal mean to you?

(p. 33:11) A. All press agents are wary of somebody like me. So it's like constantly, it's like cats, you know, or dogs sniffing each other out constantly. You might know that dog, but you know, you're not absolutely, you're never friends with that -- you know, you don't have friends, journalists don't have friends, but you have people that you deal with all the time.

(p. 33:21) Q. Did you have the impression that Mr. Stowell regarded you as an ally in the SCO --

(p. 33:24) A. Never, no.

(p. 33:25) Q. Did you convey to Mr. Stowell at any time that you took -- let me start over again.

(p. 34:4) How did you view the SCO versus IBM SCO versus Novell dispute as it was brewing in the spring and summer of 2003?

(p. 34:7) A. As a good story.

(p. 34:8) Q. Did you believe that you were taking a particular side in that story?

(p. 34:10) A. I have no side.

(p. 34:11) Q. Did you understand that people thought you were taking sides during that period?

(p. 34:14) A. I think that my stories stand for that. I think that -- I would refer you to my stories. I don't see any bias in any of my stories. It's just a completely objective recitation of the facts.

(p. 34:19) Q. So my question, though, is do you think that there were, didn't you in fact -- and I promise you I won't ask you a question unless I have a basis for it -- didn't you, in fact, receive communications from people who thought you were taking SCO's side in the dispute?

(p. 35:2) A. If I were to say that most people can't read, would you understand what I was talking about?

(p. 35:5) Q. I'm not asking you to defend yourself at this point.

(p. 35:7) A. I understand that.

(p. 35:8) Q. I'm asking you whether, in fact, you received those communications.

(p. 35:10) A. When? What's the timing?

(p. 35:11) Q. Well, let me -- I was telling Mauricio, again, I have a rule against asking trick questions unless I tell you it's a trick question. So let me show you what I'm referring to.

(p. 35:16) MR. JACOBS: We have another deposition going on today with Mr. Levine, so what I propose to do is to skip to 90.

(p. 35:20) MR. GONZALEZ: Okay.

(p. 35:21) MR. JACOBS: And we'll mark this as 90.

(p. 35:23) MR. GONZALEZ: You mean 1090.

(p. 35:24) MR. JACOBS: No, 90. We have a different numbering. Let's mark it 190.

(p. 36:3) (Whereupon, Exhibit 190 was marked for identification.)

(p. 36:5) MR. JACOBS: 190 is an e-mail string with the date on the top of July 20, 2004. So it's after the period you and I were talking about before. It's produced by SCO at 1648756 to 759.

(p. 36:11) A. Yeah. So?

(p. 36:12) Q. So this is a string of messages that you forwarded to SCO, correct?

(p. 36:14) A. I don't, I don't know.

(p. 36:15) Q. Well, do you see the e-mail at the bottom of 756 from O'Gara to Blake Stowell?

(p. 36:18) A. I see from Frank somebody or another to O'Gara.

(p. 36:20) Q. And look at the bottom of the first page.

(p. 36:22) A. Then I see -- the bottom of the first --

(p. 36:24) Q. The string is in reverse order.

(p. 36:25) A. Yeah, I see. I don't know what the context is.

(p. 37:3) MS. FOLEY: Just actually listen to the question that he asked.

(p. 37:5) THE WITNESS: Sorry.

(p. 37:6) MS. FOLEY: The question again was?

(p. 37:8) Q. You forwarded an e-mail string that you received to Mr. Stowell at SCO, correct?

(p. 37:11) A. No.

(p. 37:12) MS. FOLEY: The question is does the document reflect that.

(p. 37:14) A. I guess so.

(p. 37:15) Q. Well, you don't have a recollection?

(p. 37:17) A. I don't remember it, you know, I get lots of e-mails. So what?

(p. 37:19) Q. Well, I guess my question is so what, why did you forward this string of e-mails from Frank Jalics, J-A-L-I-C-S, in which he accused you of being on, in a nutshell, on SCO's side --

(p. 37:24) A. Yeah.

(p. 37:25) Q. -- why did you forward that to SCO under an e-mail "I want war pay"?

(p. 38:3) MR. GONZALEZ: Objection.

(p. 38:4) A. I don't remember the context of the thing, but --

(p. 38:6) MS. FOLEY: Do you remember why you forwarded it?

(p. 38:8) THE WITNESS: No.

(p. 38:9) Q. Does it strike you as peculiar that a journalist would forward to one of the sides in a dispute a string of e-mails she got from a reader?

(p. 38:13) A. I don't know what the right answer to that question is because I don't know the context.

(p. 38:16) Q. Well, what's the context here?

(p. 38:17) A. I'm probably just complaining about getting this kind of crap all, you know, all the time.

(p. 38:20) People who can't read and don't know what the heck is going on and got it wrong to begin with just, you know, saying that, you know, you think you've got it tough, Blake, you should see it from my side. That's no big deal.

(p. 39:2) Q. So Jalics says to you in the July 19th e-mail --

(p. 39:4) A. July 19, is that the beginning?

(p. 39:5) Q. It's towards the beginning, yes. It's on the bottom half of 758.

(p. 39:7) A. July 19th, wait a second. Yeah. About being Hillary to their Bill Clinton?

(p. 39:9) Q. Yes. To be precise, he says, "You take SCO's side like Hillary took Bill Clinton's side when he was being accused of fooling around with Monica."

(p. 39:13) Do you see that?

(p. 39:14) A. Yes.

(p. 39:15) A. And then he goes on to explain why he thinks you are being taken in by SCO's story.

(p. 39:18) Do you see that?

(p. 39:19) A. Yes.

(p. 39:20) Q. And then you responded to him with a clarification what you thought SCO was alleging in the dispute.

(p. 39:23) Do you see that?

(p. 39:24) A. I don't think what they're alleging -- all right. I see my reply, yes.

(p. 40:3) Q. And it reads, "SCO needs AIX and DYNEX because it is charging IBM with copying AIX and DYNEX line for line into Linux. It is not charging IBM with copying UNIX line for line into Linux. It is charging IBM with copying derivative copy line for line into Linux.

(p. 40:10) Do you see that?

(p. 40:11) A. Yes.

(p. 40:12) Q. So you were trying to clarify for him what you understood the dispute was about?

(p. 40:15) A. Isn't that what the dispute was about at that time?

(p. 40:17) Q. I'm not challenging that.

(p. 40:18) A. Okay.

(p. 40:19) Q. I'm just characterizing what you were doing.

(p. 40:21) A. Right, okay.

(p. 40:22) Q. And then he goes on and again sort of disputes your reporting on the case in his July 20th e-mail, do you see that?

(p. 40:25) He says, "What makes you want to believe SCO when every time they show up to a different court or to the same court on a different day their story keeps changing? When they filed the suits in the IBM case, did you know it was primarily a contract dispute and not really about contract copyright infringement? When they filed the suit against Auto Zone, did you realize that it was really about them thinking that Auto Zone might have ported some static libraries to Linux? SCO hired some competent lawyers that they are able to convincibly argue that the moon is made of green cheese, but that doesn't mean that they have the evidence to back it up. Frank."

(p. 41:18) Do you see that?

(p. 41:19) A. Uh-huh.

(p. 41:20) MR. GONZALEZ: Objection to the scope.

(p. 41:22) Q. And then you forward that string to Mr. Stowell and with what I took to be kind of a humorous remark, I want war pay.

(p. 41:25) A. Right.

(p. 42:2) Q. And it was humorous?

(p. 42:3) A. It was intended to be.

(p. 42:4) Q. I actually think it's funny, so your intent came across.

(p. 42:6) A. Okay. All right.

(p. 42:7) Q. And then Stowell says back to you, "Keep fighting the good fight."

(p. 42:9) A. Right

(p. 42:10) Q. Now what did you understand him to be saying with keep fighting the good fight?

(p. 42:13) MS. FOLEY: If you have a recollection of this e-mail, having any understanding at the time.

(p. 42:16) A. I would only be interpreting. I don't, you know -- I'm assuming that he was just saying, you know, continue doing the kind of reporting you're used to doing, which is objective.

(p. 42:21) Q. So let me show you another e-mail. We'll mark this as 191.

(p. 42:23) (Whereupon, Exhibit 191 was marked for identification.)

(p. 42:25) Q. This is one you would not have seen before, but I think it's important that you see.

(p. 43:4) A. Is this backwards too?

(p. 43:5) Q. This is backwards too. So 191 is a short string in which your Client Server News is forwarded internally at SCO. And so if you go down to the bottom of SCO 1278156, there is your May 2, 2003 Client Server News.

(p. 43:11) Do you see that?

(p. 43:12) A. I don't know what story they're referring to. Wait a minute. Yeah.

(p. 43:14) Q. So if you look at the e-mail highlights of what looks to be Adobe Acrobat attachment, your e-mail highlight says, "Against the backdrop of a thin IBM response to SCO's billion dollar suit against it, SCO claims it's found line for line plagiarism of SVR5 and Linux and has renewed its threat to pull IBM's license in six weeks."

(p. 43:23) Do you see that?

(p. 43:24) A. This indicates to me that this is a list of headlines, and some copies of our e-mail distributions in the front they have a list of the headlines. So these are different stories. 01 is a story with that headline, 02 is a story with that headline, 03 and 04. ... yeah, so what?

(p. 44:7) Q. Okay.

(p. 44:8) So the lead story there is IBM tries non-defense defense?

(p. 44:10) A. Yeah.

(p. 44:11) Q. Against billion dollar SCO suit?

(p. 44:12) A. Yeah.

(p. 44:13) Q. And you send that to your readers, and Blake Stowell forwards it internally under an e-mail to Darl McBride the CEO of SCO, which says, "Once again, Maureen is coming through for us, we owned the entire front page."

(p. 44:19) Do you see that?

(p. 44:20) A. Yeah. So what?

(p. 44:21) Q. So my question to you is, was Mr. Stowell working with you --

(p. 44:23) A. No.

(p. 44:24) Q. -- to get prominent coverage for the SCO IBM lawsuit?

(p. 45:2) A. No, absolutely not. Absolutely not. Never.

(p. 45:4) Q. Was Mr. Stowell doing his job in trying to get good PR for SCO through you?

(p. 45:6) A. No.

(p. 45:7) MR. GONZALEZ: Objection. Calls for speculation.

(p. 45:9) Q. No, he wasn't doing that?

(p. 45:10) A. No. Blake did not do a good job.

(p. 45:12) Q. So you put that story on the front page, but it didn't have anything to do with Blake Stowell doing his job?

(p. 45:15) A. Absolutely not.

(p. 45:16) Q. Why did you give it front page placement?

(p. 45:18) A. Probably because it was the most interesting thing that happened that week.

(p. 45:20) Q. In your judgment?

(p. 45:21) A. I get to do that, yeah.

(p. 45:22) Q. So by the way, this 191, we'll jump around in time a little bit, 191 is May 2, 2003, so this is before the story that SCO asked you about in the beginning part of the deposition. This one I'm going to show you about is back to October 2004. So this will be 192. Do you have it?

(p. 46:5) A. No, I don't.

(p. 46:6) (Whereupon, Exhibit 192 was marked for identification.)

(p. 46:8) MR. JACOBS: Why don't you hold 192 and we'll mark another one as 193.

(p. 46:10) (Whereupon, Exhibit 193 was marked for identification.)

(p. 46:12) Q. So 193 is an e-mail string that ends on August 11, 2003 produced by SCO under 143593 to 595.

(p. 46:15) A. Yeah.

(p. 46:16) Q. And 192 is an e-mail string ending October 22, 2004 ending under SCO 1648173 to 176. Let me ask you about 193 first.

(p. 46:20) MS. FOLEY: Have you had a chance to look at it, 193?

(p. 46:22) A. I'm sorry, I'm looking here -- oh, I'm sorry, I'll looking at 192.

(p. 46:24) Q. That's all right. Take a look at 193 now.

(p. 47:2) A. Yes.

(p. 47:3) Q. So 193 is an e-mail string between you and Stowell about a couple of issues, but what I want to focus attention on is the most recent two e-mails in the string. It seems to me you're joking with him about the subscription costs to Linux Graham and you say I'll make you a special price.

(p. 47:11) Do you see that?

(p. 47:12) A. Uh-huh.

(p. 47:13) Q. And that's on August 11, 2003, do you see that?

(p. 47:15) A. Uh-huh.

(p. 47:16) Q. And then you again, I think in humor -- I'll accept it as in humor -- you say "you're so cute" and then you say "and your politics are sensible and should be rewarded." I didn't see the humor in that. I was wondering what you meant by it.

(p. 47:22) A. He's a mormon.

(p. 47:23) Q. And therefore?

(p. 47:24) A. It has a tendency to have like, you know, those kindS of family values that we're all supposed to admire so much.

(p. 48:3) Q. And that's what you meant by politics?

(p. 48:5) A. Isn't that what that is?

(p. 48:6) Q. I don't know. I'm asking you. What did you mean by politics?

(p. 48:8) A. That's what I would say.

(p. 48:9) Q. Family values?

(p. 48:10) A. Yeah.

(p. 48:11) Q. And what do you mean by it should be rewarded?

(p. 48:13) A. A lot of people are -- oh, come on, you know, it's meaningless. There's nothing there. It's just chatter.

(p. 48:16) Q. And then he reports back, "Aaw, shucks, I'm blushing now."

(p. 48:18) Do you see that?

(p. 48:19) A. I guess that's because I said he was cute. I call most people lamb chop. Most guys think they're the only ones I say it to. I've got 2000 senior executives in the computer industry who think they're the only ones I call lamb chop. Come on, honey.

(p. 49:2) Q. I'm feeling left out.

(p. 49:3) A. Let's deal with this. You know, I mean, it's a dog eat dog world out there.

(p. 49:5) Q. Yeah, and I think I saw all of that except the focus on politics. That seemed like an odd word in this context.

(p. 49:8) A. I don't know. We were talking about other kinds of things. You know, you have to talk about other subjects with people and he was probably telling me about his kids and, you know, local school election or whatever. It's --

(p. 49:14) Q. So this was just chatter?

(p. 49:15) A. This is just chatter. This is southern bell kind of chit cat, you know, just keep talking and maybe you'll get what you want, whatever it is.

(p. 49:19) Q. So then on 192, Dean Zimmerman at SCO writes to Blake Stowell and writes, "Am I impressed you actually got Maureen O'Gara to say something that was, well, nice about SCO."

(p. 49:24) Do you see that?

(p. 49:25) A. Yes, I do.

(p. 50:2) Q. And Stowell says, "I just killed her with kindness and charm."

(p. 50:4) A. Yes, and I just imagine that's chitchat too.

(p. 50:6) Q. That's your interpretation?

(p. 50:7) A. Yeah.

(p. 50:8) MR. JACOBS: We've been going about an hour and 15. I'd like to give you a break and take a quick break. I think we can finish up by 1:00 if we take no more than a 5 or 10 minute break.

(p. 50:14) MR. GONZALEZ: You mean in total or just your part?

(p. 50:16) (Discussion held off the record.)

(p. 50:18) THE VIDEOGRAPHER: We are going off the record. The time is 12:20.

(p. 50:20) (Recess taken 12:30 p.m.)

(p. 50:21) THE VIDEOGRAPHER: We are now back on the record. The time is 12:38.

(p. 50:24) BY MR. JACOBS:

(p. 50:25) Q. Ms. O'Gara, I'd like to show you what we'll mark as 194 and 195.

(p. 51:3) (Whereupon, Exhibits 194 and 195 were marked for identification.)

(p. 51:5) Q. 194 is a copy of an article from Linux Graham, SCO's lawyer speaks, says nothing. Do you see that?

(p. 51:8) A. Yep.

(p. 51:9) Q. Is that an article you wrote?

(p. 51:10) A. Yes.

(p. 51:11) Q. And 195 is a declaration of Mark Heise in the SCO v. IBM case dated November 7, 2006.

(p. 51:14) In 194 you said that you had a conversation with Mr. Heise and that he said that while SCO's -- you said that he said that while SCO's claims have substance and that it isn't proposing to go on a fishing discovery expedition, SCO doesn't want IBM to know what they are.

(p. 51:21) Do you see that?

(p. 51:22) A. Yes, I do.

(p. 51:23) MR. GONZALEZ: Objection.

(p. 51:24) Q. And then Mr. Heise submits his declaration saying that he spoke to you on or around March 21, 2003 --

(p. 52:3) A. Wait a second.

(p. 52:4) MS. FOLEY: Why don't you take a moment to read Exhibit 195.

(p. 52:6) A. Why don't I read 194 first.

(p. 52:7) MS. FOLEY: Okay.

(p. 52:8) MR. GONZALEZ: Just to clarify, I want to object to the form of the last question of Mr. Jacobs as well as his characterization of Exhibit 194.

(p. 52:12) A. Does the last paragraph of --

(p. 52:13) MS. FOLEY: Actually,k have you finished reading?

(p. 52:15) THE WITNESS: Yes.

(p. 52:16) MS. FOLEY: Then you'll answer questions, but I'm going to state for the record beforehand that this now seems to be getting beyond the articles that were given to us before the deposition to consider for privilege grounds.

(p. 52:23) I don't know exactly where you intend to go or what questions you intend to ask, and it may or may not raise privilege issues.

(p. 53:3) So I'm going to let you ask the questions and then maybe either we'll have a conversation either on or off the record if it does start to raise privilege issues.

(p. 53:8) Q. Actually on that point, you had communications directly or through your counsel with counsel for SCO before the deposition?

(p. 53:12) A. Could you repeat that question?

(p. 53:13) (Record read)

(p. 53:14) A. Yes.

(p. 53:15) Q. You met with counsel for SCO?

(p. 53:16) A. No.

(p. 53:17) Q. You didn't meet in the lobby of this hotel with counsel for SCO?

(p. 53:19) A. Oh, I beg your pardon. I thought you meant before today. I guess the answer would be yes.

(p. 53:22) Q. Did you discuss the substance of your testimony today?

(p. 53:24) A. We discussed the First Amendment and we discussed the questions that he would ask me.

(p. 54:3) Q. did you discuss the answers you would give?

(p. 54:5) A. I wouldn't characterize it that way, no.

(p. 54:7) Q. What did you convey from you side?

(p. 54:9) A. What did I convey, you mean what did I say?

(p. 54:11) Q. Uh-huh.

(p. 54:12) A. That it was my understanding that were were going to talk about this story that I wrote on May 28th, 2003 and that my conversation with Mr. Stone was reflected in paragraph 3.

(p. 54:17) Q. Did you discuss with him the question of whether Mr. Stone conveyed anything more to you than was carried, that was contained in paragraph 3 of Exhibit 1090?

(p. 54:22) THE WITNESS: Could you repeat that, please?

(p. 54:24) (Record read)

(p. 54:25) A. We discussed the meaning of paragraph 3.

(p. 55:3) Q. What did you tell him the meaning was?

(p. 55:5) A. Exactly what I've testified to here today.

(p. 55:7) Q. How did you -- you and I kind of teased it out with a high degree of specificity. What did you tell SCO's counsel about what you meant by that paragraph?

(p. 55:12) A. I assumed we teased it out with the same degree of specificity, if I understand what those words mean.

(p. 55:15) My understanding is -- let me rephrase that.

(p. 55:17) Chris Stone told me that they were going to drop this little bomb shell on SCO and they were going to do it on the 28th of May, because that was the day that SCO's numbers were coming out.

(p. 55:22) Q. And that's what you conveyed to SCO's counsel in the lobby of the hotel?

(p. 55:24) A. Yes.

(p. 55:25) Q. You didn't use the word bomb shell with him?

(p. 56:3) A. No.

(p. 56:4) Q. And Mr. Stone didn't use the word bomb shell with you?

(p. 56:6) A. No.

(p. 56:7) Q. Bomb shell is your characterization today?

(p. 56:9) A. Right. But that's what it was intended to be.

(p. 56:11) Q. That's the way you understood it?

(p. 56:13) A. No, that is the way the world was supposed to understand it, because it is a bomb shell, sir.

(p. 56:16) Q. In your judgment?

(p. 56:17) A. No. It's a fact. It's not a judgment. It's a fact.

(p. 56:19) Q. Has anyone else validated that fact other than yourself?

(p. 56:21) A. We wouldn't all be here if it wasn't.

(p. 56:23) Q. If you look at 194 and 195 --

(p. 56:24) A. Yes.

(p. 56:25) Q. Mr. Heise is a lawyer for SCO and he's critiquing this article, in 195 in his declaration he's contradicting 194, isn't he?

(p. 57:5) MS. FOLEY: Well, are you representing that to her?

(p. 57:7) MR. JACOBS: I'm asking her.

(p. 57:8) MS. FOLEY: Well, there's nothing in here that connect this to this. This refers in this affidavit to Exhibit No. 374, I believe, and there is no, nothing that shows that this article that you've given as 94 is the same thing he's talking about.

(p. 57:15) MR. JACOBS: Why don't you look at paragraph 4, just so you and I are clear, of his declaration.

(p. 57:18) MS. FOLEY: And in paragraph 4 it say SCO lawyers speak, says nothing.

(p. 57:21) MR. JACOBS: Right.

(p. 57:22) MS. FOLEY: So you're representing to her that this is the article that's referred to in here?

(p. 57:25) MR. JACOBS: Yes.

(p. 58:2) Q. Except paragraph 9, which is a different topic as you started to note.

(p. 58:4) A. Yeah, that's correct.

(p. 58:5) Q. So we'll set paragraph 9 aside. I'm not going to ask you any questions about that.

(p. 58:8) So you see in paragraph 3 he says, Mr. Heise says, "I spoke to Maureen O'Gara on or around March 21, 2003, shortly after the complaint was filed in the instant action. The article is not an accurate reflection of the conversation."

(p. 58:14) Do you see that?

(p. 58:15) A. I do.

(p. 58:16) Q. He says, in paragraph 4, "I explained to Ms. O'Gara that I was not willing to detail the body of SCO's claims in evidence in a telephone conversation with a journalist, which is consistent with the fact that Ms. O'Gara entitled her article SCO's Lawyer Speak, Says, Nothing."

(p. 58:23) Do you see that?

(p. 58:24) MR. GONZALEZ: I object to the scope of the question.

(p. 59:2) Q. And then he says, "I never stated or implied in any way that I did not want IBM to know what SCO's claims were."

(p. 59:5) Do you see that?

(p. 59:6) A. Yes.

(p. 59:7) Q. And you see in your article where you wrote, "But doesn't want IBM to know what they are"?

(p. 59:10) A. Yes.

(p. 59:11) Q. Who is right here, you or Mr. Heise?

(p. 59:13) MS. FOLEY: All right. Now I think that we're going to object to the form of the question right now.

(p. 59:16) If you want to ask her what she meant in the article and what she believes and what she was reporting, that's fine, but to ask about what the source's opinion is or the correctness of the source's opinion goes beyond both the scope and I don't believe that you've got, I don't think that we've received a counter-subpoena from you, have we?

(p. 60:2) MR. JACOBS: Are you going to instruct her?

(p. 60:4) MS. FOLEY: Yeah, I'm instructing her not to answer.

(p. 60:6) MR. JACOBS: You want to get a protective order and we'll come back?

(p. 60:8) MS. FOLEY: You don't have a subpoena and I think it's beyond the scope. If you want to tell me why you think this is an appropriate question, we can consider it, but --

(p. 60:13) MR. JACOBS: It goes to accuracy.

(p. 60:15) MS. FOLEY: But you have -- what do you need? You have the statement, you have the sworn statement in front of you. You want to ask her does she believe her article is accurate, ask her if she will stand by her article.

(p. 60:21) Q. That's a good question. I think it's pretty similar to what I said. Do you believe your article is accurate?

(p. 60:24) A. And my answer was going to be, before you got into this discussion, I stand by my article.

(p. 61:3) Q. So you believe that Mr. Heise did, in fact, say to you that SCO does not want IBM to know what the substance of SCO's claims are?

(p. 61:7) MS. FOLEY: Are you quoting -- sorry, I need to catch up here.

(p. 61:9) Q. I'm referring to 194.

(p. 61:10) MS. FOLEY: Which line are we at? Are you reporting accurately what Mr. Heise said to you?

(p. 61:13) THE WITNESS: I am reporting accurately what Mr. Heise said to me.

(p. 61:15) Q. And in paragraph 5, he says, "I stated to Ms. O'Gara that I had received numerous press inquiries regarding the lawsuit and that I personally had not yet spoken to IBM regarding the claims."

(p. 61:20) And then in 6, "I stated to Ms. O'Gara that IBM's response might be to file a motion to dismiss rather than answering the claims, but I did not believe a motion to dismiss would prevail."

(p. 61:25) And then in 7, "I explained to Ms. O'Gara that Sun Micro Systems had purchased a different type of license that IBM had and that SCO had concluded that Sun Micro Systems was not in breach of that license. I did not say that SCO was giving Sun Micro Systems a hall pass on IP tempering. I never stated, I never said that I had not read the other licensing UNIX agreements."

(p. 62:11) Do you see that in this declaration?

(p. 62:13) A. I saw it.

(p. 62:14) Q. And then in your article you went on to write, "At the time, and this was a week ago, he had spent more time talking to us than to IBM that there had been no contact. He figures IBM's strategy will be to go for a dismissal on the grounds that what he's charged IBM with so far are, is not a cause of action and are conclusions, not facts. He seems relatively unperturbed at the prospect. He also gave Sun a hall pass on IP tampering calling it `clean as a whistle' because it paid all that money once upon a time for UNIX. As for everybody else, well he hadn't gotten around to reading their agreements yet."

(p. 63:6) Do you see that?

(p. 63:7) A. Yes.

(p. 63:8) Q. And do you stand by your story?

(p. 63:9) A. I stand by my story.

(p. 63:10) Q. You were accurately reporting in your story what Mr. Heise said to you?

(p. 63:12) A. Yes.

(p. 63:13) Q. And to the extent that his declaration disclaims what you reported in your story, his declaration is incorrect?

(p. 63:16) MS. FOLEY: Object to the form of the question. I'm going to direct the witness not to answer that question.

(p. 63:20) Q. Are you going to follow your counsel's instruction?

(p. 63:22) A. That's why she's here.

(p. 63:23) Q. Now let's look at what we'll mark as 196.

(p. 63:25) (Whereupon, Exhibit 196 was marked for identification.)

(p. 64:3) A. Why does the print keep getting littler and littler?

(p. 64:5) MR. JACOBS: I seem to be shy a copy of this one.

(p. 64:7) MR. GONZALEZ: Maybe I can just look at it and give it back to you.

(p. 64:9) MR. JACOBS: yes.

(p. 64:10) Q. So this is an e-mail to you dated May 30, 2005, Exhibit 196, produced under SCO 1647696 to 697.

(p. 64:13) Do you see that?

(p. 64:14) A. I don't see a date on it.

(p. 64:15) Q. Right at the top.

(p. 64:16) A. Oh, there it is, okay.

(p. 64:17) Q. And the subject is, "I need you to send a jab PJ's way."

(p. 64:19) A. Okay.

(p. 64:20) Q. Do you see that?

(p. 64:21) A. Uh-huh.

(p. 64:22) Q. Who is PJ?

(p. 64:23) A. PJ is the purported author of the Groklaw site.

(p. 64:25) Q. What is the Groklaw site?

(p. 65:2) A. It is a website that follows the SCO case -- I should say cases maybe but.

(p. 65:4) Q. Did you have a view in March of 2005 about whether PJ or the Groklaw site was a reliable source of information on the SCO litigation?

(p. 65:8) A. yes.

(p. 65:9) Q. What was your view?

(p. 65:10) A. It was not reliable.

(p. 65:11) Q. And what was the basis for that?

(p. 65:12) A. It is a propaganda site.

(p. 65:13) Q. Propaganda in what sense?

(p. 65:14) A. It's unbalanced.

(p. 65:15) Q. In contrast to what you believe you were doing?

(p. 65:17) A. In contrast to what anybody is doing.

(p. 65:19) Q. But more particularly your reporting?

(p. 65:21) A. I suppose you could compare it to my reporting.

(p. 65:23) Q. And in comparison you felt you were balanced or more balanced compared to her reporting?

(p. 66:2) A. She's not reporting. That's not reporting. Reporting has to do with facts. She is writing a piece. It's an editorial or editorializing.

(p. 66:6) Q. And that was the view you held in March 2005?

(p. 66:8) A. Yes.

(p. 66:9) Q. And then you did, in fact, write a story about PJ or Pamela Jones, didn't you?

(p. 66:12) A. Yes.

(p. 66:13) MR. JACOBS: Let's take a look at that. We'll mark this as 197.

(p. 66:15) (Whereupon, Exhibit 197 was marked for identification.)

(p. 66:17) Q. So in 196, Stowell says in the subject line, "I need you to send a jab PJ's way," and that's March 30, 2005?

(p. 66:20) A. Yes.

(p. 66:21) Q. And 197 is your May 9 to 13, 2005 issue of Client Server News 2000, correct?

(p. 66:24) A. Yeah.

(p. 66:25) Q. And the lead story is "Who is Pamela Jones," correct?

(p. 67:3) A. Yeah.

(p. 67:4) Q. Is there a causal relationship between Blake Stowell's e-mail to you and the appearance of the story in Client Server News 2000, May 9 to 13, 2005?

(p. 67:8) A. No.

(p. 67:9) Q. You did it independently, you did the story on PJ --

(p. 67:11) A. I have reason to do a story on Pamela Jones that has nothing to do with SCO.

(p. 67:14) Q. Nothing to do with SCO asking you to?

(p. 67:16) A. It has nothing to do with SCO. It's a matter of my own personal integrity. She called it into question.

(p. 67:19) Q. That's what prompted this article?

(p. 67:21) A. That's what prompted my interest in finding out who she was, yes.

(p. 67:23) Q. And in that article you said, "A few weeks ago, I went looking for the elusive [harridan] [(misspelled "herodin" by official reporter)] who supposedly writes the Groklaw about the SCO v. IBM suit."

(p. 68:3) Do you see that?

(p. 68:4) A. Uh-huh.

(p. 68:5) Q. What is a [harridan]?

(p. 68:6) A. I suppose we could look it up in the dictionary.

(p. 68:8) Q. Why did you use the word?

(p. 68:9) A. Because it's accurate.

(p. 68:10) Q. And in what way is it accurate?

(p. 68:11) A. Have you read Groklaw?

(p. 68:12) Q. I'm sorry, I get to ask the questions.

(p. 68:14) A. If you read Groklaw, you would know that [harridan] is the right word. There is a difference between a good word and a right word.

(p. 68:18) Q. See if you agree with this definition --

(p. 68:20) MR. GONZALEZ: Again. Objection to scope.

(p. 68:22) Q. [Harridan], noun, a woman regarded as scolding and vicious.

(p. 68:24) A. Uh-huh.

(p. 68:25) Q. Is that a definition that applies to your use of the word [harridan]?

(p. 69:3) A. I think it's accurate.

(p. 69:4) Q. Scolding and vicious?

(p. 69:5) A. Uh-huh.

(p. 69:6) Q. As you sit here today, do you have any regrets over printing 197?

(p. 69:8) A. No.

(p. 69:9) MR. GONZALEZ: Objection.

(p. 69:10) Q. Do you have any regrets about finding the identity reporting information, personal information about Pamela Jones?

(p. 69:13) A. No.

(p. 69:14) Q. And again, "Who is Pamela Jones" had nothing to do, the story on 197, your testimony is that it had to do with Blake Stowell's March 30, 2005 e-mail with the subject "I need you to send a jab PJ's way"?

(p. 69:20) A. I think he defines what the jab would be, which is something that we ignored, you know.

(p. 69:23) Q. The answer is?

(p. 69:24) A. No.

(p. 69:25) Q. Now let me show you a document that's been previously marked as a deposition exhibit.

(p. 70:4) A. I don't need a number?

(p. 70:5) Q. It has one on it already. It's part of the advanced technology we use in this practice.

(p. 70:8) So this document 1024 is a set of notes by Chris Stone that he took at the, in 2003 to recount what he recalled of his contacts about the SCO matter.

(p. 70:12) MS. FOLEY: Actually, can you just say that again? Are you representing to us what this is?

(p. 70:15) MR. JACOBS: Yes.

(p. 70:16) MS. FOLEY: So say it again.

(p. 70:17) MR. JACOBS: 1024 is a set of notes by Chris Stone that he recorded in 2003 to recount what he recalled of his contacts about the SCO matter.

(p. 70:21) A. His what about the SCO matter?

(p. 70:22) Q. Contacts.

(p. 70:23) A. Contacts, okay.

(p. 70:24) Q. And he talks about you --

(p. 70:25) A. On page 3.

(p. 71:2) Q. Right, May 27, 9 p.m.

(p. 71:3) A. Yeah.

(p. 71:4) Q. So just to get the chronology right, May 28th, 2003 is the date of Exhibit 1080, the article on the ownership issue?

(p. 71:8) A. Yeah, uh-huh.

(p. 71:9) Q. And so he is recording here that at May 27 in the evening before Maureen O'Gara from Client Server News calls me out at my house. She starts quizzing me about a letter we are about to send to SCO. She wants to know what we told the Wall Street Journal, what is Hamachi, what we plan to do with SCO, why it was timed on this day, is IBM involved, et cetera. I refused to answer any of her questions. I was quite amazed and disturbed at how much detail she had. She asked me if she was hot or cold. I told her no comment and to call Gary Schuster tomorrow. She clearly has a source somewhere in Novell.

(p. 71:24) Do you see that?

(p. 71:25) A. Uh-huh.

(p. 72:2) Q. And then on May 28th, Maureen calls my cell phone at 6:30 a.m. She had this from 1998. She asked if there is any news since she is doing a story. I tell her no comment and to call Gary Schuster. And the May 28th Novell sends letter to SCO challenging them to prove copyright and patent ownership.

(p. 72:10) Do you see that?

(p. 72:11) A. Yes.

(p. 72:12) Q. Do you disagree with what Chris recounted here about his contacts with you?

(p. 72:14) A. Yes.

(p. 72:15) Q. Can you step us through your disagreements?

(p. 72:17) A. Where do I begin?

(p. 72:18) Q. Well, did you call him at 9 p.m. on May 27th?

(p. 72:20) A. I remember we spoke. It was the evening. I don't think it was 9 p.m., but I could be wrong about that.

(p. 72:23) Q. When you -- and did you call him?

(p. 72:25) A. I don't remember.

(p. 73:2) Q. Did you begin the conversation by asking him about a letter that Novell planned to send to SCO?

(p. 73:5) A. I don't -- no I don't remember.

(p. 73:6) Q. Did you ask him what he had told the Wall Street Journal?

(p. 73:8) A. I don't remember. I don't even know what the context is.

(p. 73:10) Q. Did you ask him about Hamachi, with a capital H?

(p. 73:12) A. It's possible. I don't know.

(p. 73:13) Q. Do you recall what your interest in something called Hamachi was?

(p. 73:15) A. Hamachi is a code name.

(p. 73:16) Q. For what?

(p. 73:17) A. I don't remember anymore.

(p. 73:18) Q. For a software project?

(p. 73:19) A. Probably.

(p. 73:20) Q. Did you ask him what Novell planned to do with SCO?

(p. 73:22) A. This is just mischaracterization. That's okay.

(p. 73:24) Q. Well, as you sit here today, do you have a recollection of whether you asked him what Novell planned to do with SCO?

(p. 74:4) A. I think that if we go back to the original story, it says what they intended to do, and I got that from Stone.

(p. 74:7) Q. So I take it that the best recollection you have of your conversation with Stone in terms of a source other than your memory is to go to the story itself, is that right?

(p. 74:12) A. Say that again?

(p. 74:13) Q. Aside from your memory, what you're looking at as you're answering my questions is a story, right?

(p. 74:16) A. No -- you mean, are you doubting that I remember having the conversation with Chris and that he said that the reason that they were sending the letter on that day was because of the earnings, no.

(p. 74:21) Q. I'm sorry, that wasn't my question.

(p. 74:23) A. Okay.

(p. 74:24) Q. I said as you sit here today, do you have a recollection of whether you asked him what Novell planned to do with SCO. You said, I think, if we go back to the original story, it says what they intended to do, and I got that from Stone. And I said, I take it from your answer that the best source you have other than your memory of what happened in that conversation is the story itself.

(p. 75:10) A. Well, that is a distillation of that conversation, yes.

(p. 75:12) Q. And it's the only distillation you have. You don't have any other place to go to find out what happened in that conversation, do you?

(p. 75:16) MS. FOLEY: Beside from her memory.

(p. 75:18) A. Yes, aside from my memory, yes.

(p. 75:19) Q. Okay.

(p. 75:20) Did you ask him --

(p. 75:21) A. Does he --

(p. 75:22) Q. Did you ask him, Ms. O'Gara, did you ask him why the letter to Novell was timed on this day?

(p. 75:25) A. My memory, as I explained before, we're not in the habit of thinking about the stock market, and it was he who drew my attention to the fact that that day, the day that they were going to send the cease and desist letter was timed to coincide with SCO's earnings release.

(p. 76:8) Q. My question to you is slightly different, which is whether he volunteered on the topic of timing, or as he says here in his memo, you asked him about the timing.

(p. 76:13) A. And I am testifying that he volunteered it.

(p. 76:15) Q. He volunteered --

(p. 76:16) A. he volunteered the connection. He supplied the causality. I didn't. He did.

(p. 76:19) Q. I got that.

(p. 76:20) What I'm asking you is, did you ask him why and then he supplied the causality, or i you don't remember that's --

(p. 76:24) A. I don't remember.

(p. 76:25) Q. Okay.

(p. 77:2) Did you ask him about whether IBM was involved in the letter?

(p. 77:4) A. I don't remember.

(p. 77:5) Q. Did he refuse to answer some of your questions?

(p. 77:7) A. Everybody always refuses to answer some of my questions.

(p. 77:9) Q. And you're inferring from that that in your conversation --

(p. 77:11) A. It's possible.

(p. 77:12) Q. Don't remember?

(p. 77:13) A. Don't remember.

(p. 77:14) Q. Did you use the expression hot or cold as in am I hot or cold with this story idea?

(p. 77:17) A. That's not logical.

(p. 77:18) Q. Is that an expression you sometimes use?

(p. 77:20) A. No.

(p. 77:21) Q. So your best recollection based on both your recollection of the conversation and your practice is that this is incorrect, this reference to use of hot or cold?

(p. 78:2) A. The story is fully developed, sir. So it's not a matter of am I hot or cold about it. It's fully developed. So I can't answer your question because it's not logical.

(p. 78:7) Q. The question isn't logical?

(p. 78:8) A. No, it isn't because -- you know, it was like I was on a fishing expedition and all this really didn't happen.

(p. 78:12) Q. Forgive me, but it seems to me that you could have elicited information and developed a story using the expression am I hot or cold, and question to you is --

(p. 78:17) A. Then he would have had to have given me the story, wouldn't he have?

(p. 78:19) Q. I don't know. I'm just asking you if in your conversation with Chris Stone on the evening of May 28th you used the expression am I hot or cold.

(p. 78:23) A. I don't know

(p. 78:24) Q. Did he at any point say I have no comment?

(p. 79:2) A. I don't know.

(p. 79:3) Q. Did he tell you to call Gary Schuster?

(p. 79:5) A. I don't know.

(p. 79:6) Q. And he says at the end of this paragraph, "She clearly has a source somewhere in Novell," implying that it is not he.

(p. 79:10) So my question to you is, did you have a source other than Chris Stone in Novell on the topic of Novell's intention's vis-a-vis SCO around May of 2003?

(p. 79:14) A. No.

(p. 79:15) Q. The next entry is May 28th, Maureen calls my cell phone at 6:30 a.m.

(p. 79:17) A. I doubt it.

(p. 79:18) Q. Did you have -- and then he says she had this, I think meaning the cell phone number, from 1998.

(p. 79:21) Do you see that?

(p. 79:22) A. Yes.

(p. 79:23) Q. Is that correct?

(p. 79:24) A. Yes.

(p. 79:25) Q. What was 1998?

(p. 80:2) A. I don't know if it was particularly 1998, but I've had Chris' cell phone number for years. He was the head of the object management group.

(p. 80:6) Q. And you had developed a reporter's relationship with him in that capacity?

(p. 80:9) A. We talked a lot.

(p. 80:10) Q. Did you have -- you said you talked a lot. I asked you if you developed a reporter's relationship. Did you have a reporter's source relationship with Chris Stone dating back some years?

(p. 80:15) A. He was an executive of a consortium through which much information passed.

(p. 80:18) Q. To you?

(p. 80:19) A. No, through which it passed. I'm trying to capture as much of it as I can, but not -- I suppose the answer to the question is yes.

(p. 80:23) Q. And the only reason I have to ask this is to ask you whether you had a personal friendship with Mr. Stone as opposed to a reporter's source relationship.

(p. 81:4) A. I had, you know, a lamb chop relationship with him.

(p. 81:6) Q. Which you've had with many people?

(p. 81:8) A. I have a rolodex full of men with whom I've had a lamb chop relationship, and they're all special to me, every single one of them.

(p. 81:12) Q. That's what they believe.

(p. 81:13) A. God love them.

(p. 81:14) Q. Did you ask him if there's any news on the morning of May 28, did you ask Mr. Stone if there's any news?

(p. 81:17) A. Sir, I do not do mornings. I'm a night person.

(p. 81:19) Q. So your best recollection --

(p. 81:20) A. Okay, that means I would have had to stay up all night and I don't think that -- I mean, I have spent many a night working over this kind of stuff. It's possible that I could have called him the next morning to make sure that this thing is accurate and that they were going to deliver it that day, which they did, okay?

(p. 82:4) Q. And you don't have a recollection of whether in the morning call he said --

(p. 82:7) A. No, I don't know that there was a morning call.

(p. 82:9) Q. Right.

(p. 82:10) A. But practices -- you know, I like to be -- the most important thing is to be accurate, okay? And you fact check and you double check and you make sure that they're actually going to go ahead and do this.

(p. 82:16) Q. So you may have had a call in the morning?

(p. 82:18) A. I may have had a call.

(p. 82:19) Q. And you don't recall the substance of that discussion?

(p. 82:21) A. Well, since -- it would have been about, you know, are they going to go ahead and do, did they do it, what's happening here, yes, because this thing went out at 8:00 in the morning, at least my copy did, somebody else's is earlier.

(p. 83:3) Q. Now how long after your conversation with Chris Stone did you have a conversation with -- let me start over again.

(p. 83:7) We covered this earlier, but I want to make sure I have the facts correct. You had a conversation with Blake Stowell asking him for information related to the story that appears in Exhibit 1080, the May 28 Client Server News, right?

(p. 83:13) A. This, are we talking about Novell to try and shoot down?

(p. 83:15) Q. Yes.

(p. 83:16) A. He's a public relations person. It's typical to get two sides of the story. I went to him not for -- what did you call it, information?

(p. 83:20) Q. I'm sorry, I'm just trying to get --

(p. 83:22) A. I went to him for comment.

(p. 83:23) Q. Comment, terrific. You went to Blake Stowell for comment?

(p. 83:25) A. Right.

(p. 84:2) Q. You didn't go to anybody else at SCO for comment, you went to Blake Stowell?

(p. 84:4) A. Blake Stowell is the gatekeeper, all right? And this is a formal kind of a situation. So it's best to stick to the rules rather than jumping ahead. To do to him first and ask for comment, it's possible that I brought other people into the conversation.

(p. 84:11) Q. You don't recall?

(p. 84:12) A. I'm not one hundred percent on it, so no.

(p. 84:14) Q. And in the conversation with Stowell you testified earlier that you relayed to him what Chris Stone had told you as part of your effort to elicit comment from Stowell, correct?

(p. 84:19) A. Say that again?

(p. 84:20) Q. In the conversation with Stowell, you testified earlier that you relayed to him what Chris Stone had told you as part of your effort to elicit comment from Stowell?

(p. 84:25) A. Right. It's getting complicated, isn't it? Yes is the answer to that.

(p. 85:4) Q. And in the conversation, in that conversation with Stowell you told him what we've called the causality point, correct?

(p. 85:7) MS. FOLEY: Object to the form of the question. What do you mean by causality point?

(p. 85:10) Q. Do you understand what I mean by that?

(p. 85:12) A. Why don't we oblige the lady and --

(p. 85:14) Q. In your conversation with Stowell, you told him that Chris Stone had told you that Novell intentionally timed its ownership announcement to coincide with SCO's earnings release, correct?

(p. 85:19) A. Yes.

(p. 85:20) Q. Did you ever tell anyone else -- well, ever is a big question -- in the time period in question, the end of May, early June 2003, did you tell anyone else that that's what Chris Stone said to you?

(p. 85:25) A. I can't swear to the time frame, but I believe I told Darl McBride. I don't think I had the conversation with anybody else.

(p. 86:5) Q. What were the circumstances of your conversation with Darl McBride on this point?

(p. 86:8) A. As I remember, Blake went and told Darl and Darl called me.

(p. 86:10) Q. And Darl asked you what?

(p. 86:11) A. Is this what you told Blake Stowell.

(p. 86:13) Q. And what did you say to him?

(p. 86:14) A. Yes.

(p. 86:15) Q. And specifically this was what, when Darl spoke to you?

(p. 86:17) A. The causality.

(p. 86:18) Q. That Novell had intentionally timed its ownership announcement to coincide with SCO's earnings release?

(p. 86:21) A. Yes.

(p. 86:22) Q. So Darl McBride called you up and you confirmed to Darl that you had told Stowell --

(p. 86:25) A. Right, and he repeated to me the exact words, which I can't remember anymore, that I had told Blake that Chris used and Blake accurately reported that to McBride who then came back to me to double check.

(p. 87:7) Q. When McBride came back to you to double check, did you have your short phrase notes?

(p. 87:10) A. No, because I didn't -- no, I mean, I remembered it then, but it's what, 3 or 4 years later now, so.

(p. 87:13) Q. But your best recollection is when Darl calls you up for conversation, you don't go back to your short phrase notes?

(p. 87:17) A. I didn't have to. It was only --

(p. 87:19) Q. I'm just asking you yes or no.

(p. 87:20) A. No.

(p. 87:21) Q. Did you --

(p. 87:22) A. I didn't have them.

(p. 87:23) Q. Why didn't you have them at that point?

(p. 87:25) A. Because they would have been destroyed, if it was weeks later.

(p. 88:3) Q. Was it weeks later?

(p. 88:4) A. I don't remember. My impression was it was in the same time frame. As a matter of fact, I thought it was the 28th of May, but I could be wrong.

(p. 88:8) Q. If it was the 28th of May --

(p. 88:9) A. I'm sorry, the 27th of May, the Tuesday.

(p. 88:11) Q. If it was the 27th of May, you still had your short phrase notes?

(p. 88:13) A. Yeah

(p. 88:14) Q. And so when Darl McBride called you up --

(p. 88:16) A. If he did in that time, which I think he did, but I can't swear to that.

(p. 88:18) Q. And you don't remember whether you were looking at your short phrase notes when he called you back for a confirmation?

(p. 88:21) A. It was a sentence or expression that stuck in the mind at the time, so you wouldn't have really actually needed the notes, but yes, they would have been there.

(p. 88:25) Q. But your best recollection is Darl calls you up, he's confirming exactly what Stone says?

(p. 89:4) Q. Yeah.

(p. 89:5) Q. You didn't go back to your notes at that point?

(p. 89:7) A. No, I didn't have to.

(p. 89:8) Q. So let me just ask this, let me see if we've got a catalog of the various communications around what Chris Stone said to you.

(p. 89:12) Number one, we have the article itself, Exhibit 1080, correct?

(p. 89:14) A. Yes.

(p. 89:15) Q. Number two, we have your call to Blake Stowell?

(p. 89:17) A. Yes.

(p. 89:18) Q. Number three, we have the call from Darl McBride to you?

(p. 89:20) A. Yes.

(p. 89:21) Q. And then, of course, we have the original call between you and Chris Stone?

(p. 89:23) A. Yes.

(p. 89:24) A. Are there any other documents notes, electronic data or oral communications that you can think of as you sit here today that, in which the substance of Chris Stone's statement to you about the reason for the timing of Novell's ownership announcement was set forth?

(p. 90:7) A. Why don't we repeat that question.

(p. 90:9) Q. Okay.

(p. 90:10) So the question is, what are all the places where the substance of Chris Stone's statement to you about timing are set forth, and the catalog is your recollection of what Chris said to you, your communication to Blake Stowell, the call from Darl McBride and the substance of Exhibit 1080, your May 28th, 2003 Client Server News?

(p. 90:19) MR. GONZALEZ: Objection.

(p. 90:20) THE WITNESS: Why are we objecting?

(p. 90:22) MR. GONZALEZ: One of things he said is your recollection, and that's different from the communication itself. If there are catalog communications, it should be all communications. That's all. It's just a legal technicality.

(p. 91:5) A. Keeping in mind that legal technicality, the answer is no.

(p. 91:7) Q. No, there's nothing else?

(p. 91:8) A. There's nothing else.

(p. 91:9) Q. Do you have a rule at G2 about disclosure of any financial interests you have in companies you report on?

(p. 91:12) A. We try not to.

(p. 91:13) Q. You try not to have a financial interest?

(p. 91:15) A. Right. It's not a good idea.

(p. 91:16) Q. And do you, in fact, have a financial interest today in SCO?

(p. 91:18) A. No.

(p. 91:19) Q. Novell?

(p. 91:20) A. No.

(p. 91:21) Q. IBM?

(p. 91:22) A. No.

(p. 91:23) Q. Did you in the late spring of 2003 have a financial interest in any of those companies?

(p. 92:2) A. No.

(p. 92:3) Q. If you had a financial interest in a company you were reporting on, would it be your practice to disclose that?

(p. 92:6) A. It's become fashionable in the last two years for people to do that, but I didn't, I wouldn't and I probably wouldn't even know if I had a financial interest because I don't look at it, you know, it's sort of like blind trust.

(p. 92:12) Q. Is it actually a blind trust?

(p. 92:13) A. No, it's not actually, but it might as well be.

(p. 92:15) Q. You don't actually know what companies your investment --

(p. 92:17) A. I have absolutely no idea, and I have all the unopened mail to prove it, all those statements, right, that come all the time, they're not opened, none of them. I have no idea.

(p. 92:22) Q. Do you have any personal relationships aside from a lamb chop reporter's source relationship with anyone at SCO?

(p. 93:2) A. No.

(p. 93:3) Q. IBM?

(p. 93:4) A. No. Can anybody have a real relationship with IBM?

(p. 93:6) Q. Novell?

(p. 93:7) A. No.

(p. 93:8) MR. JACOBS: No further questions.

(p. 93:10) MR. GONZALEZ: If you don't mind, why don't we take a 5 minute break, and partly because I want to see this exhibit which I couldn't review.

(p. 93:15) THE VIDEOGRAPHER: We're going off the record. The time is 1:25.

(p. 93:17) (Recess taken 1:25 p.m.)

(p. 93:18) THE VIDEOGRAPHER: We are now back on the record. The time is now 1:35.

(p. 93:22) EXAMINATION BY MR. GONZALEZ:

(p. 93:24) Q. Ms. O'Gara, I'd like to ask you just a couple of follow up questions following up on the conversation you've been having with Mr. Jacobs and --

(p. 94:4) A. And it's been a charming conversation, Mr. Jacobs.

(p. 94:6) Q. And the first one is in reference to Exhibit 1024 where --

(p. 94:8) A. Wait a minute. Wait a minute. Oh, is that the --

(p. 94:10) Q. It's the alleged recap by Mr. Stone of his contacts related to the litigation of the case.

(p. 94:13) A. Okay.

(p. 94:14) Q. And do you recall that Mr. Jacobs showed you a couple of entries in Exhibit 1024?

(p. 94:17) A. Yes.

(p. 94:18) Q. That purported to be Mr. Stone's record of his conversations with you on the evening of May 26th and the morning of May 28th, 2003, is that correct?

(p. 94:22) A. Yes.

(p. 94:23) Q. And Mr. Jacobs asked you about some of the details that Mr. Stone apparently set forth in this recount?

(p. 95:2) A. Yes.

(p. 95:3) Q. And do you recall that you did not have any particular recollection one way of the other about some of the details, for example, the time of the call in the evening, who called whom, whether or not Mr. Stone referred you to Gary Schuster, those sorts of details, do you recall again not having a specific recollection one way or the other about those details?

(p. 95:12) A. Yes.

(p. 95:13) Q. So my question for you is, so how is it that you do recall the comment by Mr. Stone that we've been focusing on, namely the timing of Novell's announcement with SCO's earning call?

(p. 95:18) A. Because SCO made such a big deal about it.

(p. 95:20) Q. And what do you mean by SCO made a big deal out of it?

(p. 95:22) A. Well, while I called in to get a statement from SCO, I'm used to asking the questions and, you know, they turned around and started grilling me after I said that Stone had said that, and that's what makes it stick in my mind so vividly.

(p. 96:4) Q. And when you say they started grilling you, who are you referring to?

(p. 96:6) A. As I recall, it was -- well, Stowell, he came through the phone at me, and I remember talking to McBride then. I mean McBride is usually, usually stayed out of stuff, and the fact that he had been involved at all was unusual.

(p. 96:12) Q. Just to further --

(p. 96:13) A. And they wanted, you know, the exact words and all of that, which I had at the time, but don't have now.

(p. 96:16) Q. And just to clarify, when you say that Mr. Stowell came through the phone, what do you mean by that? Can you elaborate a little bit?

(p. 96:20) A. How can I best describe it? You know, it's like he sat up and took notice and, you know, was repeatedly -- you know, he asked me any number of times what had exactly happened. He had more sensitivity to the thing than I did.

(p. 97:2) Q. Did you get the impression that he was surprised or shocked, or what would be the adjective?

(p. 97:5) A. Yeah, both of them would be, I think, accurate.

(p. 97:7) Q. Okay.

(p. 97:8) A. It was their level of interest, you know, in the thing.

(p. 97:10) Q. Okay.

(p. 97:11) And do you recall speaking with Mr. Jacobs a little while ago about this concept of causality?

(p. 97:14) A. Yes.

(p. 97:15) Q. Which I think both of you were using as a shorthand for the relationship between the announcement by Novell and the earnings called by SCO, is that correct?

(p. 97:19) A. Yes.

(p. 97:20) Q. And so my question for you is, when you think of this concept of causality, what do you have in mind as being the cause and the effect as you understood it?

(p. 97:25) A. All right. To recap, my understanding is that -- well, let me rephrase that. It's not my understanding.

(p. 98:4) What happened was that Novell put out a statement saying that it owned UNIX. If it owned UNIX, then SCO didn't have a leg to stand on, and the reason that they were doing it particularly on that day was to impact the stock.

(p. 98:10) Q. And when you say that Novell wanted to make a statement that it owned UNIX, do you mean that it wanted to make a statement that it owned the UNIX copyrights?

(p. 98:15) A. It owned UNIX, yes, the copyrights and owned UNIX, and that SCO didn't.

(p. 98:18) MR. GONZALEZ: I have nothing further. Thank you.

(p. 98:21) EXAMINATION BY MR. JACOBS:

(p. 98:23) Q. Do you have any notes of your conversation with Mr. Stowell that you were just recounting?

(p. 99:2) A. No.

(p. 99:3) Q. How about with Mr. McBride?

(p. 99:4) A. No.

(p. 99:5) Q. And just to make sure the record is clear about this, when you said this is what happened, that's a little different from what Mr. Stone told you, right?

(p. 99:9) A. No. He told me that that was going to happen, and I put it that way because it is what happened.

(p. 99:12) Q. You don't know what happened to SCO's stock price?

(p. 99:14) A. No.

(p. 99:15) Q. You don't know whether the --

(p. 99:16) A. I mean, no.

(p. 99:17) Q. Around that time you don't know?

(p. 99:18) A. Yeah, I have no idea.

(p. 99:19) Q. You don't know whether it, in fact, had what you understand to be the desired effect?

(p. 99:22) A. No.

(p. 99:23) Q. And what Mr. Stone specifically said was, not that Novell wanted to depress the stock price, but that they wanted to time it, it was your recollection that they wanted to time it so that it would happen at the same time SCO reported its earnings?

(p. 100:5) MR. GONZALEZ: Objection. Mischaracterizes her prior testimony.

(p. 100:7) A. Right.

(p. 100:8) MR. JACOBS: No further questions.

(p. 100:10) A. Right, I object.

(p. 100:11) Q. I'm sorry, I thought you said right, I was right.

(p. 100:13) A. No, right, I object. That's not right.

(p. 100:15) Q. Well, let's go over it again.

(p. 100:16) What is your best recollection of what Mr. Stone specifically said about why Novell was issuing the ownership statement on the day it was issuing it?

(p. 100:20) A. It was because it was the day that they were bringing out their numbers.

(p. 100:22) Q. Their earnings report?

(p. 100:23) A. Right.

(p. 100:24) Q. And that's your best recollection of what he said to you?

(p. 101:2) A. Right.

(p. 101:3) Q. And that's all he said to you on that topic?

(p. 101:5) A. And --

(p. 101:6) MR. GONZALEZ: Objection. Asked and answered.

(p. 101:8) A. The object of the game was to impact. Sorry. There's no other logic.

(p. 101:10) Q. Again, I'm trying to get this distinction between logic and what he said. You can have your view. I'm not fighting your view of what the logic is. I just need to know what your testimony is, what Mr. Stone said.

(p. 101:16) A. He led me to understand that that was the reason.

(p. 101:18) Q. What was the reason?

(p. 101:19) A. To impact SCO's stock.

(p. 101:20) Q. But your best recollection of what he said is that the substance of it was we're timing our ownership statement to be released on the same day as SCO's earnings announcement?

(p. 101:25) A. Yes.

(p. 102:2) MR. JACOBS: No further question.

(p. 102:4) MR. GONZALEZ: I have one or two more follow-ups, if you don't mind.

(p. 102:7) EXAMINATION BY MR. GONZALEZ:

(p. 102:9) Q. Ms. Jacobs, you don't recall --

(p. 102:10) A. No, I'm sorry.

(p. 102:11) Q. Ms. O'Gara --

(p. 102:12) MR. JACOBS: Or lamb chop.

(p. 102:13) THE WITNESS: Right, as the case may be.

(p. 102:15) Q. Is it fair to say you don't recall the specific words that Mr. Stone used when he talked about the causality as you've been saying?

(p. 102:19) A. Right.

(p. 102:20) Q. But is it clear in your mind that he conveyed to you this notion of a causality?

(p. 102:23) A. Yes.

(p. 102:24) Q. And specifically that he conveyed to you that the reason for the timing of Novell's announcement was to impact or as you said earlier to upset the price of SCO's stock?

(p. 103:5) A. Yes.

(p. 103:6) Q. And this conversation took place during the phone, I believe you said earlier?

(p. 103:9) A. I'm sorry?

(p. 103:10) Q. This conversation took place via the telephone?

(p. 103:12) A. Yes, yes.

(p. 103:13) Q. So that if he conveyed this concept to you, it would have been done through the words that were coming through the telephone, not through gesture or gesticulation?

(p. 103:18) A. That's correct.

(p. 103:19) MR. GONZALEZ: I have nothing further.

(p. 103:21) A. Except that laugh.

(p. 103:22) Q. Oh, well.

(p. 103:23) So to clarify, it would be through words or through some audible sound that he was making?

(p. 104:2) A. That is correct.

(p. 104:3) Q. Including the chortle that you testified earlier about?

(p. 104:5) A. Yes.

(p. 104:6) MR. GONZALEZ: Thank you. Nothing further.

(p. 104:9) EXAMINATION BY MR. JACOBS:

(p. 104:11) Q. And just to be clear, because you're giving different answers to the two of us and I have to reconcile them --

(p. 104:14) MS. FOLEY: Object to that.

(p. 104:15) Q. -- he conveyed this through the words that linked the timing of the ownership statement to the timing of the earnings release?

(p. 104:19) A. I'm trying to listen very carefully to what you're saying. Could you say that again?

(p. 104:22) Q. Sure.

(p. 104:23) He conveyed this through the words that linked the timing of the ownership statement to the timing of the earnings release?

(p. 105:3) A. Yes, I believe the answer to that question is yes, if I understand the way you're using the English language.

(p. 105:6) He told me that they were releasing it on the day. He pointed out to me that that day was the day that they were going to release their earnings. He drew a line between those two events.

(p. 105:11) MR. JACOBS: Thank you.

(p. 105:12) MR. GONZALEZ: I have nothing further.

(p. 105:14) THE VIDEOGRAPHER: This marks the end of tape number one. We are going off the record. The time is 1:46.

(p. 105:18) (Time noted 1:46 p.m.)

Witness's signature block

(Copy on file at the tenth circuit is not signed by the witness)

____________________
MAUREEN O'GARA

Subscribed and sworn to
before me this day
of , 2007.

____________________

Reporter's certificate

(Copy on file at the tenth circuit is not signed by the reporter)

            CERTIFICATE
 STATE OF NEW YORK )
                   : ss
 COUNTY OF NEW YORK)
 
         I, Joan Urzia, a Registered
 Professional Reporter and Notary 
 Public within and for the State of New York,
 do hereby certify:
         That MAUREEN O'GARA, the
 witness whose deposition is hereinbefore set
 forth, was duly sworn by me and that such
 deposition is a true record of the testimony
 given by the witness.
         I further certify that I am
 not related to any of the parties to this
 action by blood or marriage, and that I am
 in no way interested in the outcome of this
 matter.
         IN WITNESS WHEREOF, I have
 hereunto set my hand this 23rd day of
 March 2007.
                     ____________________
                         JOAN URZIA

Exhibit notes and links

Exhibit 1080 (marked at p. 9:17): "SCO 1270695 and it runs in sequence through SCO 1270700 ... a document that contains an article entitled Novell to Try to Shoot Down SCO IP claims, by Maureen O'Gara ... published it on May 28, 2003"

This was admitted as plaintiff's exhibit 172 at the March 2010 trial (trial tr. 1652:4). (For the April/May 2008 trial, it was numbered as exhibit SCO-EX-0193, but was never offered into evidence. Despite never having been filed in the trial court, it was nevertheless filed in the appeals court in March 2009, in the appellant's appendix, volume 40, pp. 13778-13784.)

For the article, see http://sys-con.com/node/35082/print

Exhibit 190 (marked at 36:3): "an e-mail string with the date on the top of July 20, 2004. ... It's produced by SCO at 1648756 to 759 .. this string of e-mails from Frank Jalics ... And then you forward that string to Mr. Stowell and with what I took to be kind of a humorous remark, I want war pay ... And then Stowell says back to you, 'Keep fighting the good fight.'"

This was offered as defendant's exhibit C29 at the March 2010 trial.

Exhibit 191 (marked at 42:23): "a short string in which your Client Server News is forwarded internally at SCO. And so if you go down to the bottom of SCO 1278156, there is your May 2, 2003 Client Server News. ... the lead story there is IBM tries non-defense defense ... Stowell forwards it ... says 'Once again, Maureen is coming through for us'"

This was admitted as defendant's exhibit A14 at the March 2010 trial (trial tr. 1663:15).

For the O'Gara story (but not the Stowell email), see: http://sys-con.com/node/35006/print

Exhibit 192 (marked at 46:6): "e-mail string ending October 22, 2004 ending under SCO 1648173 to 176 ... Dean Zimmerman at SCO writes to Blake Stowell and writes, 'Am I impressed you actually got Maureen O'Gara to say something that was, well, nice about SCO.' ... And Stowell says, 'I just killed her with kindness and charm.'"

Exhibit 193 (marked at 46:10): "e-mail string that ends on August 11, 2003 produced by SCO under 143593 to 595 ... between you and Stowell about a couple of issues ... you say 'you're so cute' and then you say 'and your politics are sensible and should be rewarded.'"

Exhibit 194 (marked at 51:3): "article from Linux Graham [Gram], SCO's lawyer speaks, says nothing", dated March 21, 2003.

Available at http://sys-con.com/node/34440/print.

Filed in SCO v. IBM (No. 2:03-cv-294, D. Utah) at dkt #45, Ex. C, and dkt #835, Ex. 374.

Exhibit 195 (marked at 51:3): "declaration of Mark Heise in the SCO v. IBM case dated November 7, 2006."

This was numbered as defendant's exhibit J31 for the March 2010 trial.

(This declaration is presumably exhibit 251 to the Declaration of Brent O. Hatch dated November 11, 2006, filed in SCO v. IBM as dkt #876 (sealed; NCF in dkt #858). See "SCO's Memorandum in Opposition to IBM's Motion for Summary Judgment on its Claim for Declaratory Judgment (IBM's Tenth Counterclaim)", filed November 11, 2006, dkt #870 (sealed; redacted in dkt #956) at Appendix A, p. 78, response to fact 138 (dkt #956-5, PDF p. 8) ("disputed in that counsel for SCO made no such statement. (Ex. 251 paras. 3-8)").)

Exhibit 196 (marked at 63:25): "an e-mail to you dated May [sic, but all other references agree on March] 30, 2005, Exhibit 196, produced under SCO 1647696 to 697 ... in 196, Stowell says in the subject line, 'I need you to send a jab PJ's way,' and that's March 30, 2005"

This was admitted as defendant's exhibit S45 at the March 2010 trial (trial tr. 1665:2).

Exhibit 197 (marked at 66:15): "your May 9 to 13, 2005 issue of Client Server News 2000 ... the lead story is 'Who is Pamela Jones'"

This was admitted as defendant's exhibit D14 at the March 2010 trial (trial tr. 1665:22).

The lead story is somewhat available at http://www.accessmylibrary.com/article-1G1-132464830/pamela-jones-sco-v.html. Formerly was available at sys-con.com/read/83267.htm.

The lead story was filed in Merkey v. Perens et al. (No. 2:05-cv-521, D. Utah) at dkt #25, Ex. 3.

Exhibit 1024 (brought up at 70:8, previously marked): "a set of notes by Chris Stone that he recorded in 2003 to recount what he recalled of his contacts about the SCO matter." (This had been marked as Exhibit 1024 in the deposition of Christopher Stone on February 6, 2007. The notes are dated June 12, 2003, Bates pages NOV 39458-39462.)

Filed in dkt #297, at Ex. 17.

This was numbered as defendant's exhibit E32 for the March 2010 trial. (For the April/May 2008 trial, it was numbered as defendant's exhibit 210, but was never offered into evidence.)

Most of the deposition exhibits were listed in 2007 in Novell's original proposed exhibits for the first trial (dkt #369-2). Most of them were then left out of the renumbered exhibit list (dkt #380-2) that was filed a few weeks later, after the summary judgment ruling (which would later be vacated by the 10th circuit, leading to the second trial and to the relisting of most of these exhibits):

Exhibit Number Bates Range Depo Exhibit Motion Exhibit Date Status

NOV-EX-0376 SCO 1270698-1270700 1080 O'Gara 5/28/2003 Will
NOV-EX-0731 SCO 1648756-1648759 190 O'Gara 7/20/2004 Will
NOV-EX-0339 SCO 1278156-1278158 191 O'Gara 5/2/2003 May
NOV-EX-0463 SCO 1453593-1453596 193 O'Gara 8/11/2003 May
NOV-EX-0809 NOVTR 4274 194 O'Gara May
NOV-EX-0790 NOVTR 3121-3123 195 O'Gara 11/7/2006 May
NOV-EX-0342 SCO 1670379-1670386 197 O'Gara 5/9/2003 May
NOV-EX-0811 NOV 39458-39462 1024 Stone Brakebill 17 - 05/14/07 Will

Exhibit Number	Bates Range	Depo Exhibit	Motion Exhibit	Date	Status
NOV-EX-0376	SCO 1270698-1270700	1080 O'Gara		5/28/2003	Will
NOV-EX-0731	SCO 1648756-1648759	190 O'Gara		7/20/2004	Will
NOV-EX-0339	SCO 1278156-1278158	191 O'Gara		5/2/2003	May
NOV-EX-0463	SCO 1453593-1453596	193 O'Gara		8/11/2003	May
NOV-EX-0809	NOVTR 4274	194 O'Gara			May
NOV-EX-0790	NOVTR 3121-3123	195 O'Gara		11/7/2006	May
NOV-EX-0342	SCO 1670379-1670386	197 O'Gara		5/9/2003	May
NOV-EX-0811	NOV 39458-39462	1024 Stone	Brakebill 17 - 05/14/07		Will

(extracted from dkt #369-2, August 2, 2007)

PLF. NO. DEF. NO. [Depo Exhibit] DATE OFFERED MARKED ADMITTED DESCRIPTION OF EXHIBITS* AND WITNESSES

210 [1024 Stone] Notes, 6/12/2003, NOV 39458-39462

(extracted from dkt #536, May 2, 2008)

PLF. NO. DEF. NO. [Depo Exhibit] DATE OFFERED MARKED ADMITTED DESCRIPTION OF EXHIBITS* AND WITNESSES

SCO-EX-0193 [1080 O'Gara] E-mail from L. Schroeder to ttlaexec@tarentella.com, et al., regarding CSN & LNX Flash: Novell to Try to Shoot Down SCO IP Claims. (May 28, 2003). Bates numbered SCO1270695-SCO1270700.

(extracted from dkt #537, May 2, 2008)

The proposed exhibits for the second trial, in March 2010, include:

PLF. NO. DEF. NO. [Depo Exhibit] DATE OFFERED MARKED ADMITTED DESCRIPTION OF EXHIBITS* AND WITNESSES

L15 [1080 O'Gara] [See Plf. No. 0172] Email, 5/28/2003, SCO 1270698-1270700
C29 [190 O'Gara] [3/19/2010] [No. See p. 1584:2] Email, 7/20/2004, SCO 1648756-1648759
A14 [191 O'Gara] [3/19/2010] [p. 1663:15] Email, 5/2/2003, SCO 1278156-1278158
J31 [195 O'Gara] Declaration, 11/7/2006, NOVTR 3121-3123
[S45] [196 O'Gara] [3/19/2010] [p. 1665:2] [Email, 3/30/2005, SCO1647696-1647697]
D14 [197 O'Gara] [3/19/2010] [p. 1665:21] Article, 5/9/2003, SCO 1670379-1670386
E32 [1024 Stone] [3/19/2010] [p. 1609:13, cf. 1630:22] Notes, 6/12/2003, NOV 39458-39462

DEF. NO.	[Depo Exhibit]	DATE OFFERED	ADMITTED	DESCRIPTION OF EXHIBITS* AND WITNESSES
L15	[1080 O'Gara]		[See Plf. No. 0172]	Email, 5/28/2003, SCO 1270698-1270700
C29	[190 O'Gara]	[3/19/2010]	[No. See p. 1584:2]	Email, 7/20/2004, SCO 1648756-1648759
A14	[191 O'Gara]	[3/19/2010]	[p. 1663:15]	Email, 5/2/2003, SCO 1278156-1278158
J31	[195 O'Gara]			Declaration, 11/7/2006, NOVTR 3121-3123
[S45]	[196 O'Gara]	[3/19/2010]	[p. 1665:2]	[Email, 3/30/2005, SCO1647696-1647697]
D14	[197 O'Gara]	[3/19/2010]	[p. 1665:21]	Article, 5/9/2003, SCO 1670379-1670386
E32	[1024 Stone]	[3/19/2010]	[p. 1609:13, cf. 1630:22]	Notes, 6/12/2003, NOV 39458-39462

(extracted from dkt #768, March 5, 2010)

PLF. NO. DEF. NO. [Depo Exhibit] DATE OFFERED MARKED ADMITTED DESCRIPTION OF EXHIBITS* AND WITNESSES

0172 [1080 O'Gara] [3/19/2010] [p. 1652:4] E-mail from L. Schroeder to ttlaexec@tarantella.com, et al.

PLF. NO.	DEF. NO.	[Depo Exhibit]	DATE OFFERED	MARKED	ADMITTED	DESCRIPTION OF EXHIBITS* AND WITNESSES
0172		[1080 O'Gara]	[3/19/2010]		[p. 1652:4]	E-mail from L. Schroeder to ttlaexec@tarantella.com, et al.

(extracted from dkt #777, March 8, 2010)