Chortling and Lamb Chops: the Maureen O'Gara deposition experience
Al Petrofsky
(including some photos, links to some exhibits, and some video
snippets of O'Gara speaking) of the transcript of the deposition of
Maureen O'Gara on March 23, 2007, in SCO Group, Inc. (f/k/a Caldera
International, Inc.) v. Novell Inc., No. 2:04-cv-00139, D. Utah:
http://scofacts.org/Novell-OGara-deposition.html
I'll post the plain text in a follow-up to this message.
O'Gara is a star witness in SCO's attempts to prove the malice element
of its claim against Novell for slander of title. As SCO wrote in its
trial brief:
Within two hours of Novell's public claim that it owns the UNIX
copyrights, SCO's stock plummeted, even though SCO had announced
record revenues that day. In discovery, SCO learned that the
timing of Novell's announcement was not "entirely coincidental," as
Mr. Messman had claimed. Novell Vice Chairman Chris Stone had
informed Maureen O'Gara, a journalist who has covered the computer
industry since 1972, that Novell intentionally and maliciously was
making the announcement on the day of SCO's earnings report to
"confound SCO's stock position" and "upset the stock price."
According to her testimony, Mr. Stone leaked this information "with
laughter" and "chortling."
(dkt #742 at p. 15-16)
Stone's recollection of the conversation is quite different from
O'Gara's (his version is summarized in the transcript at 71:9).
However, even if you ignore Stone's version, it is made clear in
cross-examination that O'Gara doesn't actually recall Stone ever
saying a word about SCO's stock price or any desire to confound it.
What she says she remembers is that he somehow made clear that
Novell's anouncement was timed to coincide with SCO's conference call,
and that he was gleeful about the havoc that would be wrought.
Assuming that were all true, the obvious conclusion would not be that
he wanted to upset SCO's stock price (about which he had no reason to
care), but that he was gleeful about the prospect of upsetting SCO's
SCOsource campaign (which would of course be the number one topic on
the conference call), which he saw as an extortion campaign that was
harming Novell's customers.
Novell also brings up that O'Gara's history of alleged unreliability
includes accusations by one of SCO's own attorneys, Mark Heise, made
in a declaration under penalty of perjury, that she completely
misrepresented one of their conversations in 2003.
I discussed O'Gara's lack of precision, and the Stone and Heise
incidents, back in 2005 on the Yahoo SCOX message board:
[O'Gara] does appear to be the "direct state[r]" that was mentioned
in McBride's June 6, 2003 letter, which was first filed in the case
by Novell, attached to a declaration filed on August 6, 2004, and
which was quoted in a SCO memorandum filed on October 10, 2004:
> SCO wrote to Novell on June 6, 2003 ... SCO further stated: "we
> have a direct statement that Chris Stone an executive employee
> working closely with you on this matter, stated that the timing
> of your May 28, 2003 press release was intended to coincide with
> our earnings announcement that occurred later that day."
(docket item 52, page 18)
It's a curious turn of phrase, "We have a direct statement that
person A stated X". It sounds a bit like "We have a direct
statement from person A that X", but it really means "We have a
statement from unnamed person B that person A stated X". Five days
later, in the June 11 letter, SCO seemed to have realized that it
didn't really have a direct statement, nor a statement about a
direct statement, nor a direct statement about a statement, and
actually just had a second-hand paraphrase:
> An industry reporter was informed by a senior Novell executive
> that your May 28 press release was timed to coincide with SCO's
> May 28 earnings announcement.
([<http://www.novell.com/licensing/ntap/pdf/6_11_03_sco-n.pdf>])
Meanwhile, earlier statements by Maureen O'Gara, made on March 21,
2003, were filed in the IBM case, by IBM, on October 1, 2003,
months before the Novell case had even started:
> SCO's counsel has indicated, in an interview with Maureen O'Gara
> of LinuxGram, that it "doesn't want IBM to know what they [SCO's
> substantive claims] are." (A copy of this article is appended
> hereto as Exhibit C.)
(docket item 45, page 3) (O'Gara article is at
sys-con.com/read/21161.htm )
IBM and SCO seem to have both made the mistake of not fully
realizing that O'Gara rarely actually quotes anyone, she just
paraphrases people, and she remorselessly mangles things to fit
into her "breezy" style. Thus, her reporting is rather worthless
as evidence of anything (even though it can be quite useful as a
source of leads to investigate on your own).
(Yahoo SCOX message 329410, December 21, 2005,
<http://finance.messages.yahoo.com/bbs?action=m&sid=1600684464&board=1600684464&tid=cald&mid=329410>)
The deposition transcript also includes lots of amusing detail about
O'Gara's journalistic methods and concepts, her history with Groklaw,
and her questionably close and flirtatious relationships with SCO and
her sources. For example:
A. ... 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. ...
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.
A. I had, you know, a lamb chop relationship with him.
Q. Which you've had with many people?
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.
Q. That's what they believe.
A. God love them. ...
Q. Do you have any personal relationships aside from a lamb chop
reporter's source relationship with anyone at SCO?
A. No.
Q. IBM?
A. No. Can anybody have a real relationship with IBM?
-al
Al Petrofsky
<http://scofacts.org/Novell-OGara-deposition.html>)
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Page 1
1
2 UNITED STATES DISTRICT COURT
3 FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
4 ------------------------------------------
5 THE SCO GROUP, INC., a Delaware Corporation,
6
7 Plaintiff,
8
9 vs. 2:04CV00139
10
11 NOVELL, INC., a Delaware Corporation.
12
13 Defendant.
14 ------------------------------------------
15
16
17 VIDEOTAPED DEPOSITION OF MAUREEN O'GARA
18 Friday, March 23, 2007
19 11:00 a.m.
20
21
22
23 Reported by:
24 Joan Urzia, RPR
25 JOB NO. 192768
Esquire Deposition Services
1-800-944-9454
Page 2
1
2
3 March 23, 2007
4 11:00 a.m.
5 Roslyn, New York
6
7
8 DEPOSITION of MAUREEN O'GARA, held
9 at the Roslyn Claremont Hotel, 1221 Old
10 Northern Boulevard, Roslyn, New York,
11 Pursuant to Subpoena, before Joan Urzia, a
12 Notary Public of the State of New York.
13
14
15
16
17
18
19
20
21
22
23
24
25
Page 3
1
2 APPEARANCES:
3
4
5 DAVIS WRIGHT TREMAINE, LLP
6 Attorney for the Witness
7 1633 Broadway
8 New York, New York 10019
9 BY: CAROLYN FOLEY, ESQ.
10
11
12 BOIES, SCHILLER & FLEXNER, LLP
13 Attorneys for Plaintiff
14 333 Main Street
15 Armonk, New York 10504
16 BY: MAURICIO GONZALEZ, ESQ.
17
18
19 MORRISON & FOERSTER, LLP
20 Attorneys for Defendant
21 425 Market Street
22 San Francisco, California 94105
23 BY: MICHAEL A. JACOBS, ESQ.
24
25 ALSO PRESENT:
25 Bob Calvert, Videographer
Page 4
1 O'Gara
2 THE VIDEOGRAPHER: We are now
3 on the record. This is the video
4 operator speaking, Robert Calvert, of
5 Esquire Deposition Services, offices
6 located at 216 East 45th Street, New
7 York, New York.
8 Today's date is March 23, 2007.
9 The time on the video monitor is 11:24
10 a.m.
11 We are here at the Roslyn
12 Claremont Hotel, located at 1221 Old
13 Northern Boulevard, Roslyn, New York
14 to take the videotaped deposition of
15 Maureen O'Gara in the matter of the
16 SCO Group Incorporated, a Delaware
17 corporation versus Novell
18 Incorporated, a Delaware corporation.
19 The venue of this case is the
20 United States District Court for the
21 District of Utah, Central Division.
22 The index number is 2:04-CV-00139.
23 Will counsel please voice
24 identify yourselves and state whom you
25 represent.
Page 5
1 O'Gara
2 MR. GONZALEZ: Mauricio Gonzalez
3 of Boies Schiller & Flexner for
4 plaintiffs the SCO Group.
5 MR. JACOBS: Michael Jacobs from
6 Morrison & Foerster for defendant
7 Novell.
8 MS. FOLEY: Carolyn Foley from
9 Davis Wright Tremaine for the witness
10 Maureen O'Gara.
11 Before we start, I'd just like
12 to make a statement on the record,
13 which is that the witness is here
14 pursuant to subpoena, but she has
15 notified the SCO Group, the party
16 issuing the subpoena, that she is
17 asserting the Reporters Privilege.
18 We have been convinced that the
19 Reporters Privilege has been overcome
20 with regard to a certain conversation
21 and that will be the inquisition or
22 the inquiry today will be limited to,
23 at least as far as sources will be
24 limited to that conversation, and we
25 will assert the privilege as to any
Page 6
1 O'Gara
2 other, as appropriate in any other
3 instance.
4 MR. GONZALEZ: Thank you,
5 Ms. Foley. We appreciate that.
6
7 M A U R E E N O ' G A R A , called as a
8 witness, having affirmed to testify
9 truthfully before a Notary Public,
10 was examined and testified as
11 follows:
12
13 EXAMINATION BY
14 MR. GONZALEZ:
15 Q Good morning, Ms. O'Gara.
16 A Good morning.
17 Q Please let me know if I need to
18 clarify or restate any of my questions
19 today.
20 A Okay.
21 Q Is that okay?
22 Have you ever been deposed
23 before?
24 A Yes.
25 Q Have you been deposed in this
Page 7
1 O'Gara
2 case?
3 A No.
4 Q So in your experience in other
5 depositions do you have a sense of how this
6 will proceed generally?
7 A Yes.
8 Q Great.
9 What do you currently do for a
10 living?
11 A I'm a journalist.
12 Q And how long have you been a
13 journalist?
14 A Since about 1972.
15 Q Do you cover a certain
16 particular industry?
17 A Yes, I cover the computer
18 industry.
19 Q And how long have you been
20 covering the computer industry?
21 A Since 1972.
22 Q What publication do you
23 currently work for?
24 A I work for a publication called
25 Client Server News, or I should really say
Page 8
1 O'Gara
2 that I work for a company called G2
3 Computer Intelligence which has several
4 publications which I'm connected with, and
5 one of them is Client Server News.
6 Q And in 2003 what publication did
7 you write for?
8 A That same publication.
9 Q Is that an on-line publication
10 or a print, hard print?
11 A It was at the time both print
12 and on-line. On-line insofar as it was
13 e-mailed to its subscribers.
14 Q If you can think back to the
15 early part of 2003, what subjects did you
16 generally cover within the computer
17 industry?
18 A Well, we were covering, we
19 divide the world up into operating systems.
20 So we were following at the time NT and
21 Linux.
22 Q Are you aware that Novell has
23 issued an announcement claiming that Novell
24 and not SCO owns the UNIX copyrights?
25 A Yes.
Page 9
1 O'Gara
2 Q Do you recall that that
3 announcement was first made on or around
4 May 28, 2003?
5 MR. JACOBS: Objection.
6 Leading.
7 Q You can answer the question.
8 A Yes.
9 Q You do have a recollection --
10 A Yes.
11 Q -- of that?
12 And do you recall writing about
13 that announcement?
14 A Yes.
15 Q I'd like to show you a document
16 that will be marked as Exhibit 1080.
17 (Whereupon, Exhibit 1080 was
18 marked for identification.)
19 Q It's been bate stamped at the
20 bottom SCO 1270695 and it runs in sequence
21 through SCO 1270700.
22 It's a document that contains an
23 article entitled Novell to Try to Shoot
24 Down SCO IP claims, by Maureen O'Gara.
25 Do you see that article within
Page 10
1 O'Gara
2 this document?
3 A Yes, I do.
4 Q Does that appear to be the
5 document in which we were just talking
6 about in which you wrote about Novell's
7 announcement about its alleged ownership of
8 UNIX copyrights?
9 A Yes.
10 Q And what is the date of the
11 article?
12 A It's dated May 28.
13 Q Is that consistent with your
14 recollection of the article and the
15 announcement?
16 A Yes.
17 Q Great.
18 Before you published this
19 article, did you speak with Novell?
20 A Yes.
21 Q Did you speak with someone named
22 Chris Stone of Novell?
23 A Yes.
24 Q And what was Mr. Stone's
25 position at Novell at the time?
Page 11
1 O'Gara
2 A I believe he was vice chairman.
3 Q Would it be safe to say that you
4 understood him to be a senior executive
5 under whatever title he may have had?
6 A Yes.
7 Q And what did Mr. Novell tell
8 you --
9 A Mr. Stone.
10 Q I'm sorry, thank you.
11 What did Mr. Stone tell you
12 about Novell's public announcement in which
13 it was going to assert its purported
14 ownership of the UNIX copyrights?
15 A Well, he informed me of the
16 substance of what this story is about, that
17 they were going to, what's the right word,
18 assert their ownership.
19 Q Did he say anything about the
20 reasons why they were issuing that
21 announcement on that date?
22 A Yes, he did.
23 Q And what did he say?
24 A He said they were doing it
25 because SCO's earning were that day.
Page 12
1 O'Gara
2 Q And did he say anything about
3 the effect, the intended effect of the
4 announcement on that date?
5 A The reason that they were doing
6 it, as I understood it, was to confound
7 SCO's stock position.
8 Q When you say confound SCO's
9 stock position, can you be a little more
10 specific or can you clarify it in any way?
11 A Well, I think the object of the game
12 was to throw a monkey wrench into the
13 works.
14 Q And can you explain that, that
15 metaphor, a little further?
16 MS. FOLEY: I'm going to object
17 to the form of the question.
18 Do you understand?
19 Q Well, when you say that they
20 were trying to confound or throw a monkey
21 wrench, can you explain that?
22 A They were trying to upset the
23 stock price.
24 Q And when you say stock price,
25 whose stock price are you referring to?
Page 13
1 O'Gara
2 A SCO's.
3 Q Did Mr. Stone say anything about
4 harming SCO?
5 MR. JACOBS: Objection.
6 Leading.
7 A Do I answer that then?
8 Q Yes, you may.
9 A Logically, there wouldn't be any
10 other reason.
11 Q So you understood that to be the
12 intent?
13 A That's what I understood.
14 Q If we may go back to Exhibit
15 1080, the article that you wrote on May 28,
16 2003 --
17 A Actually, I wrote it the night
18 before.
19 Q And published it on May 28,
20 2003, is that accurate?
21 A That's accurate.
22 Q Thank you.
23 Do you recall --
24 A I don't get up at 8:15 in the
25 morning and put these things out.
Page 14
1 O'Gara
2 Q Do you know if there's any
3 reference to your conversation with
4 Mr. Stone that we've been talking about in
5 this article?
6 A Yes, I do, in the third
7 paragraph.
8 Q Okay.
9 A It begins, "The letter which --
10 Q You can go ahead and read that
11 into the record.
12 A Is that all right?
13 Q Yeah.
14 A "The letter which Novell is
15 supposed to post to its website today right
16 before SCO reports its quarterly results."
17 Q Can you continue?
18 A "Says that Novell owns the IP
19 and that SCO merely shares in certain
20 rights that it acquired from Novell by way
21 of the original SCO, the old Santa Cruz
22 operation."
23 Q And did you write that paragraph
24 as part of this article?
25 A Yes
Page 15
1 O'Gara
2 Q And again, as you sit here
3 today, is it your understanding that that
4 reflects your conversation with Mr. Stone?
5 MR. JACOBS: Objection.
6 Leading.
7 Q Does that reflect your
8 conversation with Mr. Stone?
9 A Yes.
10 Q The same conversation you just
11 testified about?
12 A Yes.
13 MR. GONZALEZ: Thank you. I
14 have nothing further.
15
16 EXAMINATION BY
17 BY MR. JACOBS:
18 Q Ms. O'Gara, do you have any
19 notes of your conversation with Mr. Stone?
20 A No.
21 Q Did you have notes at one point?
22 A Perhaps.
23 Q Why do you say perhaps?
24 A Because I don't clearly
25 remember.
Page 16
1 O'Gara
2 Q Is it your practice to take
3 notes as you're talking with sources?
4 A My notes are more in the way of
5 just phrases.
6 Q Phrases that people say to you?
7 A Yeah.
8 Q So you can capture the words
9 they used?
10 A Right.
11 Q What do you recall of the exact
12 words Mr. Stone used with you in reporting
13 to you the planned announcement?
14 A I can't
15 Q Were you on the phone?
16 A With him?
17 Q Yes.
18 A Yes.
19 Q What phone were you on?
20 A What do you mean?
21 Q Were you on a house phone, do
22 you have a cell phone?
23 A Oh, I was on a standard land
24 line.
25 Q And where was that land line
Page 17
1 O'Gara
2 located?
3 A In my office.
4 Q And where is that office?
5 A That office was at 323 Sea Cliff
6 Avenue in Sea Cliff.
7 Q What was the phone number you
8 were calling him from?
9 MR. GONZALEZ: Objection.
10 A Do I answer that question?
11 My telephone number was
12 516-759-7025. That's the main number.
13 But there are a number of lines on that
14 and it's a rollover kind of thing, and so
15 I would never know what line I was on,
16 whether it was an incoming call or an
17 outgoing call.
18 Q So are you saying as to this
19 conversation with Chris Stone you don't
20 recall whether it was incoming or outgoing?
21 A That's correct.
22 Q Did you have an understanding
23 where Mr. Stone was purportedly calling you
24 from during this call?
25 A I beg your pardon?
Page 18
1 O'Gara
2 Q Did you have an understanding
3 where Mr. Stone was during this phone call?
4 A I believe he was in the Novell
5 offices.
6 Q Just back to 323 Sea Cliff
7 Avenue, is that a personal office of yours
8 or an office of G2?
9 A It was G2 Computer Intelligence
10 was the, what do you call it, the tenant.
11 Q Is G2 your company?
12 A Yes.
13 Q So but the entity that -- well,
14 let me start over again.
15 Would the phone line be in the
16 name of Maureen O'Gara, or would it be in
17 the name of G2?
18 A G2.
19 Q You don't recall the exact words
20 Mr. Stone used. What is your best
21 recollection of what he said to you in the
22 particular conversation you were recalling
23 for Mr. Gonzalez?
24 A To best answer that question,
25 I'd have to explain that most business
Page 19
1 O'Gara
2 journalists are not that aware surprisingly
3 enough of the market, all right? You have
4 to remind yourself that there is such a
5 thing as the stock market, all right?
6 Maybe the guys at Barons are different, but
7 most of us aren't, you know, that's not a
8 hypersensitivity. And Chris drew my
9 attention to the fact that there was, that
10 SCO was supposed to report its numbers on
11 Wednesday, the 28th, and that's why this
12 phrasing in here even appears. Otherwise,
13 I would never have made the connection. He
14 was the one who drew my attention to the
15 fact that Novell is supposed to post to its
16 website today right before SCO reports its
17 quarterly results. That's the burden of
18 what he told me.
19 Q When you were responding to
20 questions from SCO's counsel, it seemed to
21 me you were being careful to distinguish
22 between what Mr. Stone said to you and what
23 you inferred from what he said, or what you
24 understood the purport to be. So with that
25 distinction in mind, let me follow up a
Page 20
1 O'Gara
2 little bit on that, on what your take away
3 was versus what he actually said.
4 MR. GONZALEZ: Objection.
5 Q Did he say to you anything more
6 than -- with respect to the issue of SCO's
7 announcement, did he simply draw your
8 attention to the fact?
9 A To SCO's announcement?
10 Q Yes.
11 A You mean their earnings report?
12 Q Correct.
13 A Okay.
14 Q Did he say anything more than
15 SCO is supposed to report its quarterly
16 results on May 28th?
17 A He led me to understand that the
18 reason that they were doing it on the 28th,
19 that they were posting their cease and
20 desist letter was because SCO was, had its
21 earnings report.
22 Q So I understand you to be saying
23 that he led you to understand something,
24 but I need to --
25 A He said --
Page 21
1 O'Gara
2 Q You're onto it. I'm trying to
3 figure out what you took away from it
4 versus what he actually said to you.
5 A There was no lack of clarity.
6 There was no lack of clarity, sir.
7 Q Well, then what was clear in
8 what he, in his words versus what you took
9 away from it?
10 A He was saying to me that the
11 reason that they were doing this was
12 because of SCO's earning report. I'm
13 sorry, you know, it's just, that's just the
14 way it is.
15 Q You don't have to apologize to
16 me. I just want your truthful testimony
17 under oath here so that the record is
18 clear.
19 A Right. It's not -- okay, go
20 ahead.
21 Q And so my question to you is, is
22 it your testimony under oath that Mr. Stone
23 conveyed to you in words that the reason
24 Novell was doing this announcement on the
25 date it was doing it was so it would be
Page 22
1 O'Gara
2 coincident with SCO's report of its
3 quarterly results?
4 MS. FOLEY: I'm going to object
5 to that as asked an answered, and
6 I'll let you answer again.
7 A Yes.
8 Q And what words or substance of
9 the conversation do you precisely recall
10 him using in order for him to convey that
11 as opposed to you to infer it?
12 MS. FOLEY: Object to the form
13 of the question. Asked and answered.
14 Q You can answer.
15 A I still answer?
16 Q Please.
17 A Maybe it was the laughter that I
18 remember most about it.
19 Q All right. So tell me about
20 that.
21 A Well, he basically -- I just --
22 maybe the right way to characterize it was
23 chortled.
24 Q And what do you recall of the
25 chortling?
Page 23
1 O'Gara
2 A That was at the end of our
3 conversation. It was shortly after we hung
4 up. I think we had been on the phone for a
5 little bit of time going through all of
6 this. He explained to me, and that's why
7 it appears in this story, that the
8 coincidence appears in this story because
9 he drew my attention to it.
10 Q And did -- so I think we have
11 chortling at the end of the conversation?
12 A Uh-huh, about that. It wasn't,
13 you know, like -- it was about the fact
14 that they were putting out their statement
15 on that day. That was what the laughter
16 was about.
17 Q So let me see if I've accurately
18 captured the back and forth over the last
19 few minutes.
20 A Okay
21 Q Mr. Stone said to you, one,
22 we're releasing this statement about
23 ownership of the UNIX copyrights; two, SCO
24 is posting, it is reporting its quarterly
25 results on the same day as our
Page 24
1 O'Gara
2 announcement; and three, he chortled?
3 MS. FOLEY: Object to the form
4 of the question. The transcript will
5 speak for itself.
6 A I think there's a step missing
7 in there, sir --
8 Q Please.
9 A -- if I'm not mistaken
10 Q You want me to read back what I
11 said?
12 A Why don't you.
13 Q Let me see if I have accurately
14 captured the back and forth over the last
15 few minutes. I'm going to redo it a little
16 bit better now that I can see the way I did
17 it. One, Mr. Stone --
18 A You get to improve, is that
19 fair?
20 Q Yes, and you do too. Life is
21 about improvement.
22 One, Mr. Stone said to you we
23 are releasing a statement about ownership
24 of the UNIX copyrights; two, Mr. Stone drew
25 your attention to the fact that SCO was
Page 25
1 O'Gara
2 reporting its quarterly results the next
3 day; and three, Mr. Stone chortled.
4 A Okay. There is an absence of
5 causality in there.
6 Q You've put your finger on my
7 question.
8 A All right. So there's the step
9 that's left out is that there was a
10 connection between step A and step B.
11 Q And my question is what did
12 Mr. Stone say that specifically identified
13 that connection as opposed to you inferring
14 from the --
15 A I'm sorry, I'm not inferring,
16 all right? I don't remember the exact
17 words, but it wasn't an inference. It was
18 a statement. I would only be putting words
19 in his mouth, I can't remember it, the
20 exact words, but the meaning was quite
21 clear.
22 Q Well, let me ask you this, if
23 you look at your --
24 A Article?
25 Q Article, thank you, on May 28,
Page 26
1 O'Gara
2 2003, Exhibit 1080.
3 A Yes.
4 Q It looks to me that the way you
5 reported it, to use the terminology you and
6 I have started to adopt here --
7 A Yes.
8 Q -- you reported one and two, but
9 not causality?
10 A Right.
11 Q Do you agree with that?
12 A Yes.
13 Q Why is that?
14 A I didn't know what to do with
15 it, quite frankly, and the story wasn't
16 about -- from my point of view the story
17 wasn't about that.
18 Q And why is that?
19 A Because I'm not a lawyer.
20 Q You saw no news value in a
21 statement to you by a Novell executive that
22 conveyed to you that the reason Novell was
23 releasing its statement on a particular
24 date was because SCO was reporting its
25 quarterly results that same date?
Page 27
1 O'Gara
2 A I know that that seems in
3 isolation like that should be really
4 important, okay, but there were so many
5 issues in this very complicated matter that
6 that would make a great sidebar or a
7 follow-up maybe, but we were talking about
8 something else in this story and I
9 thought -- I didn't know where it was all
10 going to go, and I've known Chris a long
11 time. Sometimes I get protective.
12 Q Did you subsequently convey to
13 someone at SCO that you had heard from
14 Chris Stone that the reason Novell had
15 issued its statement that day was because
16 SCO -- was to time it with the earnings
17 announcement?
18 A As far as I remember, and
19 according to the evidence in front of me
20 here, we were breaking this news. Okay?
21 In the normal course of
22 reporting, I went back to the other guy,
23 being SCO, who as far as I know didn't know
24 anything about this, for a statement.
25 During the course of my asking
Page 28
1 O'Gara
2 for that statement form its public
3 relations people, as a lever to get that
4 statement I repeated what Stone had said
5 to me.
6 Q What exactly did you state when
7 you repeated what Stone had said to you?
8 A Whatever his exact words were at
9 the time. I'm sorry.
10 Q Were you reading from notes?
11 A I don't think you had to because
12 it was just a sentence.
13 Q Your best recollection is you
14 had no notes?
15 A No, I have notes, but you know,
16 they're not understandable, they're not
17 notes like full sentences, they're not
18 verbatim everything. If I took shorthand,
19 you'd be handy to have around.
20 Q Do you have those shorthand
21 notes still?
22 A No, I don't do shorthand.
23 Q I used the word inadvisably.
24 You're being more precise than I am.
25 A Yes, yes.
Page 29
1 O'Gara
2 Q Do you have the notes of the
3 short phrases still?
4 A No.
5 Q What is your practice of the
6 short phrases, if you will, in terms of
7 whether you keep them or not?
8 A I throw everything out.
9 Q When do you do that?
10 A If not when the story is
11 written, then every week, and I've been
12 doing that since 1972.
13 Q When you conferred with the
14 public relations people at SCO, first of
15 all, were you conferring with Blake
16 Stowell?
17 A Conferring? I don't confer with
18 the PR people. I called Blake Stowell,
19 yes.
20 Q What did you mean, why did you
21 object to the word confer?
22 A I find it difficult to use that
23 verb, when I'm talking about a flak, no.
24 You don't have conferences with PR people.
25 Q You called him up, you told
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1 O'Gara
2 him --
3 A From the same phone I talked to
4 Chris one.
5 Q You told him what Chris had said
6 to you and you asked him whether he had any
7 comment?
8 A No. I told, I said to them what
9 I knew, which is the substance of this
10 story, that the next day that they were
11 going to issue this cease and desist
12 letter, and in order to get a statement
13 from SCO as a lever, I threw in what Chris
14 had said. It wasn't as scandalous to me as
15 a regular business reporter than it has
16 become under these circumstances. Do you
17 understand what I mean?
18 Q I'm trying to figure out which
19 of the -- I think setting aside the
20 chortling for a minute, we've talked about
21 three components again, the fact of the
22 date of the planned issuance of the Novell
23 statement, the fact of the date of the SCO
24 earnings release and the causal
25 relationship between one and two.
Page 31
1 O'Gara
2 A Uh-huh.
3 Q And I'm trying to figure our if
4 you told SCO one, one and two, or one two
5 and three.
6 A If I remember my one, two and
7 three correctly, the answer is on, two and
8 three.
9 Q So then I'll say that in more
10 colloquial terms, you conveyed to Blake
11 Stowell that Chris Stone had said to you --
12 A Did I do something with your
13 wire? Excuse me. Sorry. I moved.
14 Q You conveyed to Blake Stowell
15 that Chris Stone had said to you that
16 Novell was issuing its statement in order
17 to time its release with SCO's report of
18 its earnings?
19 A Among the many things -- the
20 substance of the statement seemed to take
21 priority under these, in my world the
22 substance of the statement was the primary
23 fact. I was trying to get a reaction to
24 that.
25 Then when I noticed hesitancy on
Page 32
1 O'Gara
2 the art of Mr. Stowell to give me a
3 reaction to that, I pushed further and used
4 the expressions that Stone had said to me,
5 and the substance of which is that the
6 reason that they were doing it tomorrow was
7 because you're going to have your earnings
8 call.
9 Q And you're confident, as you site
10 here today, it's 4 years later, that you
11 didn't embellish on what Mr. Stone had said
12 to you?
13 A No.
14 Q In order to elicit comment from
15 Mr. Stowell?
16 A No, absolutely not.
17 Q You're not confident, or you're
18 confident you did not?
19 A I am absolutely confident that I
20 did not. That would be a lie.
21 Q Would you regard that as a
22 breach of your ethics as a journalist?
23 A Absolutely.
24 Q It's sort of like
25 cross-examining a witness when you don't
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1 O'Gara
2 have a basis for the cross-examination?
3 A Yeah, you guys can do it, but I
4 can't.
5 Q We can't either.
6 So with that in mind, how would
7 you describe your relationship with
8 Mr. Stowell?
9 A As normal.
10 Q What does normal mean to you?
11 A All press agents are wary of
12 somebody like me. So it's like constantly,
13 it's like cats, you know, or dogs sniffing
14 each other out constantly. You might know
15 that dog, but you know, you're not
16 absolutely, you're never friends with
17 that -- you know, you don't have friends,
18 journalists don't have friends, but you
19 have people that you deal with all the
20 time.
21 Q Did you have the impression that
22 Mr. Stowell regarded you as an ally in the
23 SCO --
24 A Never, no.
25 Q Did you convey to Mr. Stowell at
Page 34
1 O'Gara
2 any time that you took -- let me start over
3 again.
4 How did you view the SCO versus
5 IBM SCO versus Novell dispute as it was
6 brewing in the spring and summer of 2003?
7 A As a good story.
8 Q Did you believe that you were
9 taking a particular side in that story?
10 A I have no side.
11 Q Did you understand that people
12 thought you were taking sides during that
13 period?
14 A I think that my stories stand
15 for that. I think that -- I would refer
16 you to my stories. I don't see any bias in
17 any of my stories. It's just a completely
18 objective recitation of the facts.
19 Q So my question, though, is do
20 you think that there were, didn't you in
21 fact -- and I promise you I won't ask you a
22 question unless I have a basis for it --
23 didn't you, in fact, receive communications
24 from people who thought you were taking
25 SCO's side in the dispute?
Page 35
1 O'Gara
2 A If I were to say that most
3 people can't read, would you understand
4 what I was talking about?
5 Q I'm not asking you to defend
6 yourself at this point.
7 A I understand that.
8 Q I'm asking you whether, in fact,
9 you received those communications.
10 A When? What's the timing?
11 Q Well, let me -- I was telling
12 Mauricio, again, I have a rule against
13 asking trick questions unless I tell you
14 it's a trick question. So let me show you
15 what I'm referring to.
16 MR. JACOBS: We have another
17 deposition going on today with
18 Mr. Levine, so what I propose to do is
19 to skip to 90.
20 MR. GONZALEZ: Okay.
21 MR. JACOBS: And we'll mark this
22 as 90.
23 MR. GONZALEZ: You mean 1090.
24 MR. JACOBS: No, 90. We have a
25 different numbering. Let's mark it
Page 36
1 O'Gara
2 190.
3 (Whereupon, Exhibit 190 was
4 marked for identification.)
5 MR. JACOBS: 190 is an e-mail
6 string with the date on the top of
7 July 20, 2004. So it's after the
8 period you and I were talking about
9 before. It's produced by SCO at
10 1648756 to 759.
11 A Yeah. So?
12 Q So this is a string of messages
13 that you forwarded to SCO, correct?
14 A I don't, I don't know.
15 Q Well, do you see the e-mail at
16 the bottom of 756 from O'Gara to Blake
17 Stowell?
18 A I see from Frank somebody or
19 another to O'Gara.
20 Q And look at the bottom of the
21 first page.
22 A Then I see -- the bottom of the
23 first --
24 Q The string is in reverse order.
25 A Yeah, I see. I don't know what
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1 O'Gara
2 the context is.
3 MS. FOLEY: Just actually listen
4 to the question that he asked.
5 THE WITNESS: Sorry.
6 MS. FOLEY: The question again
7 was?
8 Q You forwarded an e-mail string
9 that you received to Mr. Stowell at SCO,
10 correct?
11 A No.
12 MS. FOLEY: The question is does
13 the document reflect that.
14 A I guess so.
15 Q Well, you don't have a
16 recollection?
17 A I don't remember it, you know, I
18 get lots of e-mails. So what?
19 Q Well, I guess my question is so
20 what, why did you forward this string of
21 e-mails from Frank Jalics, J-A-L-I-C-S, in
22 which he accused you of being on, in a
23 nutshell, on SCO's side --
24 A Yeah.
25 Q -- why did you forward that to
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1 O'Gara
2 SCO under an e-mail "I want war pay"?
3 MR. GONZALEZ: Objection.
4 A I don't remember the context of
5 the thing, but --
6 MS. FOLEY: Do you remember why
7 you forwarded it?
8 THE WITNESS: No.
9 Q Does it strike you as peculiar
10 that a journalist would forward to one of
11 the sides in a dispute a string of e-mails
12 she got from a reader?
13 A I don't know what the right
14 answer to that question is because I don't
15 know the context.
16 Q Well, what's the context here?
17 A I'm probably just complaining
18 about getting this kind of crap all, you
19 know, all the time.
20 People who can't read and don't
21 know what the heck is going on and got it
22 wrong to begin with just, you know, saying
23 that, you know, you think you've got it
24 tough, Blake, you should see it from my
25 side. That's no big deal.
Page 39
1 O'Gara
2 Q So Jalics says to you in the
3 July 19th e-mail --
4 A July 19, is that the beginning?
5 Q It's towards the beginning, yes.
6 It's on the bottom half of 758.
7 A July 19th, wait a second. Yeah.
8 About being Hillary to their Bill Clinton?
9 Q Yes. To be precise, he says,
10 "You take SCO's side like Hillary took Bill
11 Clinton's side when he was being accused of
12 fooling around with Monica."
13 Do you see that?
14 A Yes.
15 A And then he goes on to explain
16 why he thinks you are being taken in by
17 SCO's story.
18 Do you see that?
19 A Yes.
20 Q And then you responded to him
21 with a clarification what you thought
22 SCO was alleging in the dispute.
23 Do you see that?
24 A I don't think what they're
25 alleging -- all right. I see my reply,
Page 40
1 O'Gara
2 yes.
3 Q And it reads, "SCO needs AIX and
4 DYNEX because it is charging IBM with
5 copying AIX and DYNEX line for line into
6 Linux. It is not charging IBM with copying
7 UNIX line for line into Linux. It is
8 charging IBM with copying derivative copy
9 line for line into Linux.
10 Do you see that?
11 A Yes.
12 Q So you were trying to clarify
13 for him what you understood the dispute was
14 about?
15 A Isn't that what the dispute was
16 about at that time?
17 Q I'm not challenging that.
18 A Okay.
19 Q I'm just characterizing what you
20 were doing.
21 A Right, okay.
22 Q And then he goes on and again
23 sort of disputes your reporting on the case
24 in his July 20th e-mail, do you see that?
25 He says, "What makes you want to
Page 41
1 O'Gara
2 believe SCO when every time they show up to
3 a different court or to the same court on a
4 different day their story keeps changing?
5 When they filed the suits in the IBM case,
6 did you know it was primarily a contract
7 dispute and not really about contract
8 copyright infringement? When they filed
9 the suit against Auto Zone, did you realize
10 that it was really about them thinking that
11 Auto Zone might have ported some static
12 libraries to Linux? SCO hired some
13 competent lawyers that they are able to
14 convincibly argue that the moon is made of
15 green cheese, but that doesn't mean that
16 they have the evidence to back it up.
17 Frank."
18 Do you see that?
19 A Uh-huh.
20 MR. GONZALEZ: Objection to the
21 scope.
22 Q And then you forward that string
23 to Mr. Stowell and with what I took to be
24 kind of a humorous remark, I want war pay.
25 A Right.
Page 42
1 O'Gara
2 Q And it was humorous?
3 A It was intended to be.
4 Q I actually think it's funny, so
5 your intent came across.
6 A Okay. All right.
7 Q And then Stowell says back to
8 you, "Keep fighting the good fight."
9 A Right
10 Q Now what did you understand him
11 to be saying with keep fighting the good
12 fight?
13 MS. FOLEY: If you have a
14 recollection of this e-mail, having
15 any understanding at the time.
16 A I would only be interpreting. I
17 don't, you know -- I'm assuming that he was
18 just saying, you know, continue doing the
19 kind of reporting you're used to doing,
20 which is objective.
21 Q So let me show you another
22 e-mail. We'll mark this as 191.
23 (Whereupon, Exhibit 191 was
24 marked for identification.)
25 Q This is one you would not have
Page 43
1 O'Gara
2 seen before, but I think it's important
3 that you see.
4 A Is this backwards too?
5 Q This is backwards too. So 191
6 is a short string in which your Client
7 Server News is forwarded internally at SCO.
8 And so if you go down to the bottom of SCO
9 1278156, there is your May 2, 2003 Client
10 Server News.
11 Do you see that?
12 A I don't know what story they're
13 referring to. Wait a minute. Yeah.
14 Q So if you look at the e-mail
15 highlights of what looks to be Adobe
16 Acrobat attachment, your e-mail highlight
17 says, "Against the backdrop of a thin IBM
18 response to SCO's billion dollar suit
19 against it, SCO claims it's found line for
20 line plagiarism of SVR5 and Linux and has
21 renewed its threat to pull IBM's license in
22 six weeks."
23 Do you see that?
24 A This indicates to me that this
25 is a list of headlines, and some copies of
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1 O'Gara
2 our e-mail distributions in the front they
3 have a list of the headlines. So these are
4 different stories. 01 is a story with that
5 headline, 02 is a story with that headline,
6 03 and 04. ... yeah, so what?
7 Q Okay.
8 So the lead story there is IBM
9 tries non-defense defense?
10 A Yeah.
11 Q Against billion dollar SCO suit?
12 A Yeah.
13 Q And you send that to your
14 readers, and Blake Stowell forwards it
15 internally under an e-mail to Darl McBride
16 the CEO of SCO, which says, "Once again,
17 Maureen is coming through for us, we owned
18 the entire front page."
19 Do you see that?
20 A Yeah. So what?
21 Q So my question to you is, was
22 Mr. Stowell working with you --
23 A No.
24 Q -- to get prominent coverage for
25 the SCO IBM lawsuit?
Page 45
1 O'Gara
2 A No, absolutely not. Absolutely
3 not. Never.
4 Q Was Mr. Stowell doing his job in
5 trying to get good PR for SCO through you?
6 A No.
7 MR. GONZALEZ: Objection. Calls
8 for speculation.
9 Q No, he wasn't doing that?
10 A No. Blake did not do a good
11 job.
12 Q So you put that story on the
13 front page, but it didn't have anything to
14 do with Blake Stowell doing his job?
15 A Absolutely not.
16 Q Why did you give it front page
17 placement?
18 A Probably because it was the most
19 interesting thing that happened that week.
20 Q In your judgment?
21 A I get to do that, yeah.
22 Q So by the way, this 191, we'll
23 jump around in time a little bit, 191 is
24 May 2, 2003, so this is before the story
25 that SCO asked you about in the beginning
Page 46
1 O'Gara
2 part of the deposition. This one I'm going
3 to show you about is back to October 2004.
4 So this will be 192. Do you have it?
5 A No, I don't.
6 (Whereupon, Exhibit 192 was
7 marked for identification.)
8 MR. JACOBS: Why don't you hold
9 192 and we'll mark another one as 193.
10 (Whereupon, Exhibit 193 was
11 marked for identification.)
12 Q So 193 is an e-mail string that
13 ends on August 11, 2003 produced by SCO
14 under 143593 to 595.
15 A Yeah.
16 Q And 192 is an e-mail string
17 ending October 22, 2004 ending under SCO
18 1648173 to 176. Let me ask you about 193
19 first.
20 MS. FOLEY: Have you had a
21 chance to look at it, 193?
22 A I'm sorry, I'm looking here --
23 oh, I'm sorry, I'll looking at 192.
24 Q That's all right. Take a look
25 at 193 now.
Page 47
1 O'Gara
2 A Yes.
3 Q So 193 is an e-mail string
4 between you and Stowell about a couple of
5 issues, but what I want to focus attention
6 on is the most recent two e-mails in the
7 string. It seems to me you're joking with
8 him about the subscription costs to Linux
9 Graham and you say I'll make you a special
10 price.
11 Do you see that?
12 A Uh-huh.
13 Q And that's on August 11, 2003,
14 do you see that?
15 A Uh-huh.
16 Q And then you again, I think in
17 humor -- I'll accept it as in humor -- you
18 say "you're so cute" and then you say "and
19 your politics are sensible and should be
20 rewarded." I didn't see the humor in that.
21 I was wondering what you meant by it.
22 A He's a mormon.
23 Q And therefore?
24 A It has a tendency to have like,
25 you know, those kindS of family values that
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1 O'Gara
2 we're all supposed to admire so much.
3 Q And that's what you meant by
4 politics?
5 A Isn't that what that is?
6 Q I don't know. I'm asking you.
7 What did you mean by politics?
8 A That's what I would say.
9 Q Family values?
10 A Yeah.
11 Q And what do you mean by it
12 should be rewarded?
13 A A lot of people are -- oh, come
14 on, you know, it's meaningless. There's
15 nothing there. It's just chatter.
16 Q And then he reports back, "Aaw,
17 shucks, I'm blushing now."
18 Do you see that?
19 A I guess that's because I said he
20 was cute. I call most people lamb chop.
21 Most guys think they're the only ones I say
22 it to. I've got 2000 senior executives in
23 the computer industry who think they're the
24 only ones I call lamb chop. Come on,
25 honey.
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1 O'Gara
2 Q I'm feeling left out.
3 A Let's deal with this. You know,
4 I mean, it's a dog eat dog world out there.
5 Q Yeah, and I think I saw all of
6 that except the focus on politics. That
7 seemed like an odd word in this context.
8 A I don't know. We were talking
9 about other kinds of things. You know, you
10 have to talk about other subjects with
11 people and he was probably telling me about
12 his kids and, you know, local school
13 election or whatever. It's --
14 Q So this was just chatter?
15 A This is just chatter. This is
16 southern bell kind of chit cat, you know,
17 just keep talking and maybe you'll get what
18 you want, whatever it is.
19 Q So then on 192, Dean Zimmerman
20 at SCO writes to Blake Stowell and writes,
21 "Am I impressed you actually got Maureen
22 O'Gara to say something that was, well,
23 nice about SCO."
24 Do you see that?
25 A Yes, I do.
Page 50
1 O'Gara
2 Q And Stowell says, "I just killed
3 her with kindness and charm."
4 A Yes, and I just imagine that's
5 chitchat too.
6 Q That's your interpretation?
7 A Yeah.
8 MR. JACOBS: We've been going
9 about an hour and 15. I'd like to
10 give you a break and take a quick
11 break. I think we can finish up by
12 1:00 if we take no more than a 5 or 10
13 minute break.
14 MR. GONZALEZ: You mean in total
15 or just your part?
16 (Discussion held off the
17 record.)
18 THE VIDEOGRAPHER: We are going
19 off the record. The time is 12:20.
20 (Recess taken 12:30 p.m.)
21 THE VIDEOGRAPHER: We are now
22 back on the record. The time is
23 12:38.
24 BY MR. JACOBS:
25 Q Ms. O'Gara, I'd like to show you
Page 51
1 O'Gara
2 what we'll mark as 194 and 195.
3 (Whereupon, Exhibits 194 and 195
4 were marked for identification.)
5 Q 194 is a copy of an article from
6 Linux Graham, SCO's lawyer speaks, says
7 nothing. Do you see that?
8 A Yep.
9 Q Is that an article you wrote?
10 A Yes.
11 Q And 195 is a declaration of Mark
12 Heise in the SCO v. IBM case dated November
13 7, 2006.
14 In 194 you said that you had a
15 conversation with Mr. Heise and that he
16 said that while SCO's -- you said that he
17 said that while SCO's claims have substance
18 and that it isn't proposing to go on a
19 fishing discovery expedition, SCO doesn't
20 want IBM to know what they are.
21 Do you see that?
22 A Yes, I do.
23 MR. GONZALEZ: Objection.
24 Q And then Mr. Heise submits his
25 declaration saying that he spoke to you on
Page 52
1 O'Gara
2 or around March 21, 2003 --
3 A Wait a second.
4 MS. FOLEY: Why don't you take a
5 moment to read Exhibit 195.
6 A Why don't I read 194 first.
7 MS. FOLEY: Okay.
8 MR. GONZALEZ: Just to clarify,
9 I want to object to the form of the
10 last question of Mr. Jacobs as well as
11 his characterization of Exhibit 194.
12 A Does the last paragraph of --
13 MS. FOLEY: Actually,k have you
14 finished reading?
15 THE WITNESS: Yes.
16 MS. FOLEY: Then you'll answer
17 questions, but I'm going to state for
18 the record beforehand that this now
19 seems to be getting beyond the
20 articles that were given to us before
21 the deposition to consider for
22 privilege grounds.
23 I don't know exactly where you
24 intend to go or what questions you
25 intend to ask, and it may or may not
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2 raise privilege issues.
3 So I'm going to let you ask the
4 questions and then maybe either we'll
5 have a conversation either on or off
6 the record if it does start to raise
7 privilege issues.
8 Q Actually on that point, you had
9 communications directly or through your
10 counsel with counsel for SCO before the
11 deposition?
12 A Could you repeat that question?
13 (Record read)
14 A Yes.
15 Q You met with counsel for SCO?
16 A No.
17 Q You didn't meet in the lobby of
18 this hotel with counsel for SCO?
19 A Oh, I beg your pardon. I
20 thought you meant before today. I guess
21 the answer would be yes.
22 Q Did you discuss the substance of
23 your testimony today?
24 A We discussed the First Amendment
25 and we discussed the questions that he
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1 O'Gara
2 would ask me.
3 Q did you discuss the answers you
4 would give?
5 A I wouldn't characterize it that
6 way, no.
7 Q What did you convey from you
8 side?
9 A What did I convey, you mean what
10 did I say?
11 Q Uh-huh.
12 A That it was my understanding
13 that were were going to talk about this story
14 that I wrote on May 28th, 2003 and that my
15 conversation with Mr. Stone was reflected
16 in paragraph 3.
17 Q Did you discuss with him the
18 question of whether Mr. Stone conveyed
19 anything more to you than was carried, that
20 was contained in paragraph 3 of Exhibit
21 1090?
22 THE WITNESS: Could you repeat
23 that, please?
24 (Record read)
25 A We discussed the meaning of
Page 55
1 O'Gara
2 paragraph 3.
3 Q What did you tell him the
4 meaning was?
5 A Exactly what I've testified to
6 here today.
7 Q How did you -- you and I kind of
8 teased it out with a high degree of
9 specificity. What did you tell SCO's
10 counsel about what you meant by that
11 paragraph?
12 A I assumed we teased it out with
13 the same degree of specificity, if I
14 understand what those words mean.
15 My understanding is -- let me
16 rephrase that.
17 Chris Stone told me that they
18 were going to drop this little bomb shell
19 on SCO and they were going to do it on the
20 28th of May, because that was the day that
21 SCO's numbers were coming out.
22 Q And that's what you conveyed to
23 SCO's counsel in the lobby of the hotel?
24 A Yes.
25 Q You didn't use the word bomb
Page 56
1 O'Gara
2 shell with him?
3 A No.
4 Q And Mr. Stone didn't use the
5 word bomb shell with you?
6 A No.
7 Q Bomb shell is your
8 characterization today?
9 A Right. But that's what it was
10 intended to be.
11 Q That's the way you understood
12 it?
13 A No, that is the way the world
14 was supposed to understand it, because it
15 is a bomb shell, sir.
16 Q In your judgment?
17 A No. It's a fact. It's not a
18 judgment. It's a fact.
19 Q Has anyone else validated that
20 fact other than yourself?
21 A We wouldn't all be here if it
22 wasn't.
23 Q If you look at 194 and 195 --
24 A Yes.
25 Q Mr. Heise is a lawyer for SCO
Page 57
1 O'Gara
2 and he's critiquing this article, in 195 in
3 his declaration he's contradicting 194,
4 isn't he?
5 MS. FOLEY: Well, are you
6 representing that to her?
7 MR. JACOBS: I'm asking her.
8 MS. FOLEY: Well, there's
9 nothing in here that connect this to
10 this. This refers in this affidavit
11 to Exhibit No. 374, I believe, and
12 there is no, nothing that shows that
13 this article that you've given as 94
14 is the same thing he's talking about.
15 MR. JACOBS: Why don't you look
16 at paragraph 4, just so you and I are
17 clear, of his declaration.
18 MS. FOLEY: And in paragraph 4
19 it say SCO lawyers speak, says
20 nothing.
21 MR. JACOBS: Right.
22 MS. FOLEY: So you're
23 representing to her that this is the
24 article that's referred to in here?
25 MR. JACOBS: Yes.
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1 O'Gara
2 Q Except paragraph 9, which is a
3 different topic as you started to note.
4 A Yeah, that's correct.
5 Q So we'll set paragraph 9 aside.
6 I'm not going to ask you any questions
7 about that.
8 So you see in paragraph 3 he
9 says, Mr. Heise says, "I spoke to Maureen
10 O'Gara on or around March 21, 2003, shortly
11 after the complaint was filed in the
12 instant action. The article is not an
13 accurate reflection of the conversation."
14 Do you see that?
15 A I do.
16 Q He says, in paragraph 4, "I
17 explained to Ms. O'Gara that I was not
18 willing to detail the body of SCO's claims
19 in evidence in a telephone conversation
20 with a journalist, which is consistent with
21 the fact that Ms. O'Gara entitled her
22 article SCO's Lawyer Speak, Says, Nothing."
23 Do you see that?
24 MR. GONZALEZ: I object to the
25 scope of the question.
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1 O'Gara
2 Q And then he says, "I never
3 stated or implied in any way that I did not
4 want IBM to know what SCO's claims were."
5 Do you see that?
6 A Yes.
7 Q And you see in your article
8 where you wrote, "But doesn't want IBM to
9 know what they are"?
10 A Yes.
11 Q Who is right here, you or
12 Mr. Heise?
13 MS. FOLEY: All right. Now I
14 think that we're going to object to
15 the form of the question right now.
16 If you want to ask her what she
17 meant in the article and what she
18 believes and what she was reporting,
19 that's fine, but to ask about what the
20 source's opinion is or the correctness
21 of the source's opinion goes beyond
22 both the scope and I don't believe
23 that you've got, I don't think that
24 we've received a counter-subpoena from
25 you, have we?
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1 O'Gara
2 MR. JACOBS: Are you going to
3 instruct her?
4 MS. FOLEY: Yeah, I'm
5 instructing her not to answer.
6 MR. JACOBS: You want to get a
7 protective order and we'll come back?
8 MS. FOLEY: You don't have a
9 subpoena and I think it's beyond the
10 scope. If you want to tell me why you
11 think this is an appropriate question,
12 we can consider it, but --
13 MR. JACOBS: It goes to
14 accuracy.
15 MS. FOLEY: But you have -- what
16 do you need? You have the statement,
17 you have the sworn statement in front
18 of you. You want to ask her does she
19 believe her article is accurate, ask
20 her if she will stand by her article.
21 Q That's a good question. I think
22 it's pretty similar to what I said. Do you
23 believe your article is accurate?
24 A And my answer was going to be,
25 before you got into this discussion, I
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1 O'Gara
2 stand by my article.
3 Q So you believe that Mr. Heise
4 did, in fact, say to you that SCO does not
5 want IBM to know what the substance of
6 SCO's claims are?
7 MS. FOLEY: Are you quoting --
8 sorry, I need to catch up here.
9 Q I'm referring to 194.
10 MS. FOLEY: Which line are we
11 at? Are you reporting accurately what
12 Mr. Heise said to you?
13 THE WITNESS: I am reporting
14 accurately what Mr. Heise said to me.
15 Q And in paragraph 5, he says, "I
16 stated to Ms. O'Gara that I had received
17 numerous press inquiries regarding the
18 lawsuit and that I personally had not yet
19 spoken to IBM regarding the claims."
20 And then in 6, "I stated to
21 Ms. O'Gara that IBM's response might be to
22 file a motion to dismiss rather than
23 answering the claims, but I did not believe
24 a motion to dismiss would prevail."
25 And then in 7, "I explained to
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1 O'Gara
2 Ms. O'Gara that Sun Micro Systems had
3 purchased a different type of license that
4 IBM had and that SCO had concluded that Sun
5 Micro Systems was not in breach of that
6 license. I did not say that SCO was giving
7 Sun Micro Systems a hall pass on IP
8 tempering. I never stated, I never said
9 that I had not read the other licensing
10 UNIX agreements."
11 Do you see that in this
12 declaration?
13 A I saw it.
14 Q And then in your article you
15 went on to write, "At the time, and this
16 was a week ago, he had spent more time
17 talking to us than to IBM that there had
18 been no contact. He figures IBM's strategy
19 will be to go for a dismissal on the
20 grounds that what he's charged IBM with so
21 far are, is not a cause of action and are
22 conclusions, not facts. He seems
23 relatively unperturbed at the prospect. He
24 also gave Sun a hall pass on IP tampering
25 calling it `clean as a whistle' because it
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1 O'Gara
2 paid all that money once upon a time for
3 UNIX. As for everybody else, well he
4 hadn't gotten around to reading their
5 agreements yet."
6 Do you see that?
7 A Yes.
8 Q And do you stand by your story?
9 A I stand by my story.
10 Q You were accurately reporting in
11 your story what Mr. Heise said to you?
12 A Yes.
13 Q And to the extent that his
14 declaration disclaims what you reported in
15 your story, his declaration is incorrect?
16 MS. FOLEY: Object to the form
17 of the question. I'm going to direct
18 the witness not to answer that
19 question.
20 Q Are you going to follow your
21 counsel's instruction?
22 A That's why she's here.
23 Q Now let's look at what we'll
24 mark as 196.
25 (Whereupon, Exhibit 196 was
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2 marked for identification.)
3 A Why does the print keep getting
4 littler and littler?
5 MR. JACOBS: I seem to be shy a
6 copy of this one.
7 MR. GONZALEZ: Maybe I can just
8 look at it and give it back to you.
9 MR. JACOBS: yes.
10 Q So this is an e-mail to you
11 dated May 30, 2005, Exhibit 196, produced
12 under SCO 1647696 to 697.
13 Do you see that?
14 A I don't see a date on it.
15 Q Right at the top.
16 A Oh, there it is, okay.
17 Q And the subject is, "I need you
18 to send a jab PJ's way."
19 A Okay.
20 Q Do you see that?
21 A Uh-huh.
22 Q Who is PJ?
23 A PJ is the purported author of
24 the Groklaw site.
25 Q What is the Groklaw site?
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1 O'Gara
2 A It is a website that follows the
3 SCO case -- I should say cases maybe but.
4 Q Did you have a view in March of
5 2005 about whether PJ or the Groklaw site
6 was a reliable source of information on the
7 SCO litigation?
8 A yes.
9 Q What was your view?
10 A It was not reliable.
11 Q And what was the basis for that?
12 A It is a propaganda site.
13 Q Propaganda in what sense?
14 A It's unbalance.
15 Q In contrast to what you believe
16 you were doing?
17 A In contrast to what anybody is
18 doing.
19 Q But more particularly your
20 reporting?
21 A I suppose you could compare it
22 to my reporting.
23 Q And in comparison you felt you
24 were balanced or more balanced compared to
25 here reporting?
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2 A She's not reporting. That's not
3 reporting. Reporting has to do with facts.
4 She is writing a piece. It's an editorial
5 or editorializing.
6 Q And that was the view you held
7 in March 2005?
8 A Yes.
9 Q And then you did, in fact, write
10 a story about PJ or Pamela Jones, didn't
11 you?
12 A Yes.
13 MR. JACOBS: Let's take a look
14 at that. We'll mark this as 197.
15 (Whereupon, Exhibit 197 was
16 marked for identification.)
17 Q So in 196, Stowell says in the
18 subject line, "I need you to send a jab
19 PJ's way," and that's March 30, 2005?
20 A Yes.
21 Q And 197 is your May 9 to 13,
22 2005 issue of Client Server News 2000,
23 correct?
24 A Yeah.
25 Q And the lead story is "Who is
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1 O'Gara
2 Pamela Jones," correct?
3 A Yeah.
4 Q Is there a causal relationship
5 between Blake Stowell's e-mail to you and
6 the appearance of the story in Client
7 Server News 2000, May 9 to 13, 2005?
8 A No.
9 Q You did it independently, you
10 did the story on PJ --
11 A I have reason to do a story on
12 Pamela Jones that has nothing to do with
13 SCO.
14 Q Nothing to do with SCO asking
15 you to?
16 A It has nothing to do with SCO.
17 It's a matter of my own personal integrity.
18 She called it into question.
19 Q That's what prompted this
20 article?
21 A That's what prompted my interest
22 in finding out who she was, yes.
23 Q And in that article you said, "A
24 few weeks ago, I went looking for the
25 elusive herodin who supposedly writes the
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2 Groklaw about the SCO v. IBM suit."
3 Do you see that?
4 A Uh-huh.
5 Q What is a herodin?
6 A I suppose we could look it up in
7 the dictionary.
8 Q Why did you use the word?
9 A Because it's accurate.
10 Q And in what way is it accurate?
11 A Have you read Groklaw?
12 Q I'm sorry, I get to ask the
13 questions.
14 A If you read Groklaw, you you would
15 know that herodin is the right word. There
16 is a difference between a good word and a
17 right word.
18 Q See if you agree with this
19 definition --
20 MR. GONZALEZ: Again. Objection
21 to scope.
22 Q Herodin, noun, a woman regarded
23 as scolding and vicious.
24 A Uh-huh.
25 Q Is that a definition that
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1 O'Gara
2 applies to your use of the word herodin?
3 A I think it's accurate.
4 Q Scolding and vicious?
5 A Uh-huh.
6 Q As you sit here today, do you
7 have any regrets over printing 197?
8 A No.
9 MR. GONZALEZ: Objection.
10 Q Do you have any regrets about
11 finding the identity reporting information,
12 personal information about Pamela Jones?
13 A No.
14 Q And again, "Who is Pamela Jones"
15 had nothing to do, the story on 197, your
16 testimony is that it had to do with Blake
17 Stowell's March 30, 2005 e-mail with the
18 subject "I need you to send a jab PJ's
19 way"?
20 A I think he defines what the jab
21 would be, which is something that we
22 ignored, you know.
23 Q The answer is?
24 A No.
25 Q Now let me show you a document
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2 that's been previously marked as a
3 deposition exhibit.
4 A I don't need a number?
5 Q It has one on it already. It's
6 part of the advanced technology we use in
7 this practice.
8 So this document 1024 is a set
9 of notes by Chris Stone that he took at
10 the, in 2003 to recount what he recalled of
11 his contacts about the SCO matter.
12 MS. FOLEY: Actually, can you
13 just say that again? Are you
14 representing to us what this is?
15 MR. JACOBS: Yes.
16 MS. FOLEY: So say it again.
17 MR. JACOBS: 1024 is a set of
18 notes by Chris Stone that he recorded
19 in 2003 to recount what he recalled of
20 his contacts about the SCO matter.
21 A His what about the SCO matter?
22 Q Contacts.
23 A Contacts, okay.
24 Q And he talks about you --
25 A On page 3.
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1 O'Gara
2 Q Right, May 27, 9 p.m.
3 A Yeah.
4 Q So just to get the chronology
5 right, May 28th, 2003 is the date of
6 Exhibit 1080, the article on the ownership
7 issue?
8 A Yeah, uh-huh.
9 Q And so he is recording here that
10 at May 27 in the evening before Maureen
11 O'Gara from Client Server News calls me out
12 at my house. She starts quizzing me about
13 a letter we are about to send to SCO. She
14 wants to know what we told the Wall Street
15 Journal, what is Hamachi, what we plan to
16 do with SCO, why it was timed on this day,
17 is IBM involved, et cetera. I refused to
18 answer any of her questions. I was quite
19 amazed and disturbed at how much detail she
20 had. She asked me if she was hot or cold.
21 I told her no comment and to call Gary
22 Schuster tomorrow. She clearly has a
23 source somewhere in Novell.
24 Do you see that?
25 A Uh-huh.
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1 O'Gara
2 Q And then on May 28th, Maureen
3 calls my cell phone at 6:30 a.m. She had
4 this from 1998. She asked if there is any
5 news since she is doing a story. I tell
6 her no comment and to call Gary Schuster.
7 And the May 28th Novell sends letter to
8 SCO challenging them to prove copyright and
9 patent ownership.
10 Do you see that?
11 A Yes.
12 Q Do you disagree with what Chris
13 recounted here about his contacts with you?
14 A Yes.
15 Q Can you step us through your
16 disagreements?
17 A Where do I begin?
18 Q Well, did you call him at 9 p.m.
19 on May 27th?
20 A I remember we spoke. It was the
21 evening. I don't think it was 9 p.m., but
22 I could be wrong about that.
23 Q When you -- and did you call
24 him?
25 A I don't remember.
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1 O'Gara
2 Q Did you begin the conversation
3 by asking him about a letter that Novell
4 planned to send to SCO?
5 A I don't -- no I don't remember.
6 Q Did you ask him what he had told
7 the Wall Street Journal?
8 A I don't remember. I don't even
9 know what the context is.
10 Q Did you ask him about Hamachi,
11 with a capital H?
12 A It's possible. I don't know.
13 Q Do you recall what your interest
14 in something called Hamachi was?
15 A Hamachi is a code name.
16 Q For what?
17 A I don't remember anymore.
18 Q For a software project?
19 A Probably.
20 Q Did you ask him what Novell
21 planned to do with SCO?
22 A This is just
23 mischaracterization. That's okay.
24 Q Well, as you sit here today, do
25 you have a recollection of whether you
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1 O'Gara
2 asked him what Novell planned to do with
3 SCO?
4 A I think that if we go back to
5 the original story, it says what they
6 intended to do, and I got that from Stone.
7 Q So I take it that the best
8 recollection you have of your conversation
9 with Stone in terms of a source other than
10 your memory is to go to the story itself,
11 is that right?
12 A Say that again?
13 Q Aside from your memory, what
14 you're looking at as you're answering my
15 questions is a story, right?
16 A No -- you mean, are you doubting
17 that I remember having the conversation
18 with Chris and that he said that the reason
19 that they were sending the letter on that
20 day was because of the earnings, no.
21 Q I'm sorry, that wasn't my
22 question.
23 A Okay.
24 Q I said as you sit here today, do
25 you have a recollection of whether you
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1 O'Gara
2 asked him what Novell planned to do with
3 SCO. You said, I think, if we go back to
4 the original story, it says what they
5 intended to do, and I got that from Stone.
6 And I said, I take it from your answer that
7 the best source you have other than your
8 memory of what happened in that
9 conversation is the story itself.
10 A Well, that is a distillation of
11 that conversation, yes.
12 Q And it's the only distillation
13 you have. You don't have any other place
14 to go to find out what happened in that
15 conversation, do you?
16 MS. FOLEY: Beside from her
17 memory.
18 A Yes, aside from my memory, yes.
19 Q Okay.
20 Did you ask him --
21 A Does he --
22 Q Did you ask him, Ms. O'Gara, did
23 you ask him why the letter to Novell was
24 timed on this day?
25 A My memory, as I explained
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1 O'Gara
2 before, we're not in the habit of thinking
3 about the stock market, and it was he who
4 drew my attention to the fact that that
5 day, the day that they were going to send
6 the cease and desist letter was timed to
7 coincide with SCO's earnings release.
8 Q My question to you is slightly
9 different, which is whether he volunteered
10 on the topic of timing, or as he says here
11 in his memo, you asked him about the
12 timing.
13 A And I am testifying that he
14 volunteered it.
15 Q He volunteered --
16 A he volunteered the connection.
17 He supplied the causality. I didn't. He
18 did.
19 Q I got that.
20 What I'm asking you is, did you
21 ask him why and then he supplied the
22 causality, or i you don't remember
23 that's --
24 A I don't remember.
25 Q Okay.
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1 O'Gara
2 Did you ask him about whether
3 IBM was involved in the letter?
4 A I don't remember.
5 Q Did he refuse to answer some of
6 your questions?
7 A Everybody always refuses to
8 answer some of my questions.
9 Q And you're inferring from that
10 that in your conversation --
11 A It's possible.
12 Q Don't remember?
13 A Don't remember.
14 Q Did you use the expression hot
15 or cold as in am I hot or cold with this
16 story idea?
17 A That's not logical.
18 Q Is that an expression you
19 sometimes use?
20 A No.
21 Q So your best recollection based
22 on both your recollection of the
23 conversation and your practice is that this
24 is incorrect, this reference to use of hot
25 or cold?
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1 O'Gara
2 A The story is fully developed,
3 sir. So it's not a matter of am I hot or
4 cold about it. It's fully developed. So I
5 can't answer your question because it's not
6 logical.
7 Q The question isn't logical?
8 A No, it isn't because -- you
9 know, it was like I was on a fishing
10 expedition and all this really didn't
11 happen.
12 Q Forgive me, but it seems to me
13 that you could have elicited information
14 and developed a story using the expression
15 am I hot or cold, and question to you
16 is --
17 A Then he would have had to have
18 given me the story, wouldn't he have?
19 Q I don't know. I'm just asking
20 you if in your conversation with Chris
21 Stone on the evening of May 28th you used
22 the expression am I hot or cold.
23 A I don't know
24 Q Did he at any point say I have
25 no comment?
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1 O'Gara
2 A I don't know.
3 Q Did he tell you to call Gary
4 Schuster?
5 A I don't know.
6 Q And he says at the end of this
7 paragraph, "She clearly has a source
8 somewhere in Novell," implying that it is
9 not he.
10 So my question to you is, did
11 you have a source other than Chris Stone in
12 Novell on the topic of Novell's intention's
13 vis-a-vis SCO around May of 2003?
14 A No.
15 Q The next entry is May 28th,
16 Maureen calls my cell phone at 6:30 a.m.
17 A I doubt it.
18 Q Did you have -- and then he says
19 she had this, I think meaning the cell
20 phone number, from 1998.
21 Do you see that?
22 A Yes.
23 Q Is that correct?
24 A Yes.
25 Q What was 1998?
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1 O'Gara
2 A I don't know if it was
3 particularly 1998, but I've had Chris' cell
4 phone number for years. He was the head of
5 the object management group.
6 Q And you had developed a
7 reporter's relationship with him in that
8 capacity?
9 A We talked a lot.
10 Q Did you have -- you said you
11 talked a lot. I asked you if you developed
12 a reporter's relationship. Did you have a
13 reporter's source relationship with Chris
14 Stone dating back some years?
15 A He was an executive of a
16 consortium through which much information
17 passed.
18 Q To you?
19 A No, through which it passed.
20 I'm trying to capture as much of it as I
21 can, but not -- I suppose the answer to the
22 question is yes.
23 Q And the only reason I have to
24 ask this is to ask you whether you had a
25 personal friendship with Mr. Stone as
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1 O'Gara
2 opposed to a reporter's source
3 relationship.
4 A I had, you know, a lamb chop
5 relationship with him.
6 Q Which you've had with many
7 people?
8 A I have a rolodex full of men
9 with whom I've had a lamb chop
10 relationship, and they're all special to
11 me, every single one of them.
12 Q That's what they believe.
13 A God love them.
14 A Did you ask him if there's any
15 news on the morning of May 28, did you ask
16 Mr. Stone if there's any news?
17 A Sir, I do not do mornings. I'm
18 a night person.
19 Q So your best recollection --
20 A Okay, that means I would have
21 had to stay up all night and I don't think
22 that -- I mean, I have spent many a night
23 working over this kind of stuff. It's
24 possible that I could have called him the
25 next morning to make sure that this thing
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1 O'Gara
2 is accurate and that they were going to
3 deliver it that day, which they did, okay?
4 Q And you don't have a
5 recollection of whether in the morning call
6 he said --
7 A No, I don't know that there was
8 a morning call.
9 Q Right.
10 A But practices -- you know, I
11 like to be -- the most important thing is
12 to be accurate, okay? And you fact check
13 and you double check and you make sure that
14 they're actually going to go ahead and do
15 this.
16 Q So you may have had a call in
17 the morning?
18 A I may have had a call.
19 Q And you don't recall the
20 substance of that discussion?
21 A Well, since -- it would have
22 been about, you know, are they going to go
23 ahead and do, did they do it, what's
24 happening here, yes, because this thing
25 went out at 8:00 in the morning, at least
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1 O'Gara
2 my copy did, somebody else's is earlier.
3 Q Now how long after your
4 conversation with Chris Stone did you have
5 a conversation with -- let me start over
6 again.
7 We covered this earlier, but I
8 want to make sure I have the facts correct.
9 You had a conversation with Blake Stowell
10 asking him for information related to the
11 story that appears in Exhibit 1080, the May
12 28 Client Server News, right?
13 A This, are we talking about
14 Novell to try and shoot down?
15 Q Yes.
16 A He's a public relations person.
17 It's typical to get two sides of the story.
18 I went to him not for -- what did you call
19 it, information?
20 Q I'm sorry, I'm just trying to
21 get --
22 A I went to him for comment.
23 Q Comment, terrific. You went to
24 Blake Stowell for comment?
25 A Right.
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1 O'Gara
2 Q You didn't go to anybody else at
3 SCO for comment, you went to Blake Stowell?
4 A Blake Stowell is the gatekeeper,
5 all right? And this is a formal kind of a
6 situation. So it's best to stick to the
7 rules rather than jumping ahead. To do to
8 him first and ask for comment, it's
9 possible that I brought other people into
10 the conversation.
11 Q You don't recall?
12 A I'm not one hundred percent on
13 it, so no.
14 Q And in the conversation with
15 Stowell you testified earlier that you
16 relayed to him what Chris Stone had told
17 you as part of your effort to elicit
18 comment from Stowell, correct?
19 A Say that again?
20 Q In the conversation with
21 Stowell, you testified earlier that you
22 relayed to him what Chris Stone had told
23 you as part of your effort to elicit
24 comment from Stowell?
25 A Right. It's getting
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1 O'Gara
2 complicated, isn't it? Yes is the answer
3 to that.
4 Q And in the conversation, in that
5 conversation with Stowell you told him what
6 we've called the causality point, correct?
7 MS. FOLEY: Object to the form
8 of the question. What do you mean by
9 causality point?
10 Q Do you understand what I mean by
11 that?
12 A Why don't we oblige the lady
13 and --
14 Q In your conversation with
15 Stowell, you told him that Chris Stone had
16 told you that Novell intentionally timed
17 its ownership announcement to coincide with
18 SCO's earnings release, correct?
19 A Yes.
20 Q Did you ever tell anyone else --
21 well, ever is a big question -- in the time
22 period in question, the end of May, early
23 June 2003, did you tell anyone else that
24 that's what Chris Stone said to you?
25 A I can't swear to the time frame,
Page 86
1 O'Gara
2 but I believe I told Darl McBride. I don't
3 think I had the conversation with anybody
4 else.
5 Q What were the circumstances of
6 your conversation with Darl McBride on this
7 point?
8 A As I remember, Blake went and
9 told Darl and Darl called me.
10 Q And Darl asked you what?
11 A Is this what you told Blake
12 Stowell.
13 Q And what did you say to him?
14 A Yes.
15 Q And specifically this was what,
16 when Darl spoke to you?
17 A The causality.
18 Q That Novell had intentionally
19 timed its ownership announcement to
20 coincide with SCO's earnings release?
21 A Yes.
22 Q So Darl McBride called you up
23 and you confirmed to Darl that you had told
24 Stowell --
25 A Right, and he repeated to me the
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1 O'Gara
2 exact words, which I can't remember
3 anymore, that I had told Blake that Chris
4 used and Blake accurately reported that to
5 McBride who then came back to me to double
6 check.
7 Q When McBride came back to you to
8 double check, did you have your short
9 phrase notes?
10 A No, because I didn't -- no, I
11 mean, I remembered it then, but it's what,
12 3 or 4 years later now, so.
13 Q But your best recollection is
14 when Darl calls you up for conversation,
15 you don't go back to your short phrase
16 notes?
17 A I didn't have to. It was
18 only --
19 Q I'm just asking you yes or no.
20 A No.
21 Q Did you --
22 A I didn't have them.
23 Q Why didn't you have them at that
24 point?
25 A Because they would have been
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1 O'Gara
2 destroyed, if it was weeks later.
3 Q Was it weeks later?
4 A I don't remember. My impression
5 was it was in the same time frame. As a
6 matter of fact, I thought it was the 28th
7 of May, but I could be wrong.
8 Q If it was the 28th of May --
9 A I'm sorry, the 27th of May, the
10 Tuesday.
11 Q If it was the 27th of May, you
12 still had your short phrase notes?
13 A Yeah
14 Q And so when Darl McBride called
15 you up --
16 A If he did in that time, which I
17 think he did, but I can't swear to that.
18 Q And you don't remember whether
19 you were looking at your short phrase notes
20 when he called you back for a confirmation?
21 A It was a sentence or expression
22 that stuck in the mind at the time, so you
23 wouldn't have really actually needed the
24 notes, but yes, they would have been there.
25 Q But your best recollection is
Page 89
1 O'Gara
2 Darl calls you up, he's confirming exactly
3 what Stone says?
4 Q Yeah.
5 Q You didn't go back to your notes
6 at that point?
7 A No, I didn't have to.
8 Q So let me just ask this, let me
9 see if we've got a catalog of the various
10 communications around what Chris Stone said
11 to you.
12 Number one, we have the article
13 itself, Exhibit 1080, correct?
14 A Yes.
15 Q Number two, we have your call to
16 Blake Stowell?
17 A Yes.
18 Q Number three, we have the call
19 from Darl McBride to you?
20 A Yes.
21 Q And then, of course, we have the
22 original call between you and Chris Stone?
23 A Yes.
24 A Are there any other documents
25 notes, electronic data or oral
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2 communications that you can think of as you
3 sit here today that, in which the substance
4 of Chris Stone's statement to you about the
5 reason for the timing of Novell's ownership
6 announcement was set forth?
7 A Why don't we repeat that
8 question.
9 Q Okay.
10 So the question is, what are all
11 the places where the substance of Chris
12 Stone's statement to you about timing are
13 set forth, and the catalog is your
14 recollection of what Chris said to you,
15 your communication to Blake Stowell, the
16 call from Darl McBride and the substance of
17 Exhibit 1080, your May 28th, 2003 Client
18 Server News?
19 MR. GONZALEZ: Objection.
20 THE WITNESS: Why are we
21 objecting?
22 MR. GONZALEZ: One of things he
23 said is your recollection, and that's
24 different from the communication
25 itself. If there are catalog
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2 communications, it should be all
3 communications. That's all. It's
4 just a legal technicality.
5 A Keeping in mind that legal
6 technicality, the answer is no.
7 Q No, there's nothing else?
8 A There's nothing else.
9 Q Do you have a rule at G2 about
10 disclosure of any financial interests you
11 have in companies you report on?
12 A We try not to.
13 Q You try not to have a financial
14 interest?
15 A Right. It's not a good idea.
16 Q And do you, in fact, have a
17 financial interest today in SCO?
18 A No.
19 Q Novell?
20 A No.
21 Q IBM?
22 A No.
23 Q Did you in the late spring of
24 2003 have a financial interest in any of
25 those companies?
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1 O'Gara
2 A No.
3 Q If you had a financial interest
4 in a company you were reporting on, would
5 it be your practice to disclose that?
6 A It's become fashionable in the
7 last two years for people to do that, but I
8 didn't, I wouldn't and I probably wouldn't
9 even know if I had a financial interest
10 because I don't look at it, you know, it's
11 sort of like blind trust.
12 Q Is it actually a blind trust?
13 A No, it's not actually, but it
14 might as well be.
15 Q You don't actually know what
16 companies your investment --
17 A I have absolutely no idea, and I
18 have all the unopened mail to prove it, all
19 those statements, right, that come all the
20 time, they're not opened, none of them. I
21 have no idea.
22 Q Do you have any personal
23 relationships aside from a lamb chop
24 reporter's source relationship with anyone
25 at SCO?
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1 O'Gara
2 A No.
3 Q IBM?
4 A No. Can anybody have a real
5 relationship with IBM?
6 Q Novell?
7 A No.
8 MR. JACOBS: No further
9 questions.
10 MR. GONZALEZ: If you don't
11 mind, why don't we take a 5 minute
12 break, and partly because I want to
13 see this exhibit which I couldn't
14 review.
15 THE VIDEOGRAPHER: We're going
16 off the record. The time is 1:25.
17 (Recess taken 1:25 p.m.)
18 THE VIDEOGRAPHER: We are now
19 back on the record. The time is now
20 1:35.
21
22 EXAMINATION BY
23 MR. GONZALEZ:
24 Q Ms. O'Gara, I'd like to ask you
25 just a couple of follow up questions
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1 O'Gara
2 following up on the conversation you've
3 been having with Mr. Jacobs and --
4 A And it's been a charming
5 conversation, Mr. Jacobs.
6 Q And the first one is in
7 reference to Exhibit 1024 where --
8 A Wait a minute. Wait a minute.
9 Oh, is that the --
10 Q It's the alleged recap by
11 Mr. Stone of his contacts related to the
12 litigation of the case.
13 A Okay.
14 Q And do you recall that
15 Mr. Jacobs showed you a couple of entries
16 in Exhibit 1024?
17 A Yes.
18 Q That purported to be Mr. Stone's
19 record of his conversations with you on the
20 evening of May 26th and the morning of May
21 28th, 2003, is that correct?
22 A Yes.
23 Q And Mr. Jacobs asked you about
24 some of the details that Mr. Stone
25 apparently set forth in this recount?
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1 O'Gara
2 A Yes.
3 Q And do you recall that you did
4 not have any particular recollection one
5 way of the other about some of the details,
6 for example, the time of the call in the
7 evening, who called whom, whether or not
8 Mr. Stone referred you to Gary Schuster,
9 those sorts of details, do you recall again
10 not having a specific recollection one way
11 or the other about those details?
12 A Yes.
13 Q So my question for you is, so
14 how is it that you do recall the comment by
15 Mr. Stone that we've been focusing on,
16 namely the timing of Novell's announcement
17 with SCO's earning call?
18 A Because SCO made such a big deal
19 about it.
20 Q And what do you mean by SCO made
21 a big deal out of it?
22 A Well, while I called in to get a
23 statement from SCO, I'm used to asking the
24 questions and, you know, they turned around
25 and started grilling me after I said that
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1 O'Gara
2 Stone had said that, and that's what makes
3 it stick in my mind so vividly.
4 Q And when you say they started
5 grilling you, who are you referring to?
6 A As I recall, it was -- well,
7 Stowell, he came through the phone at me,
8 and I remember talking to McBride then. I
9 mean McBride is usually, usually stayed out
10 of stuff, and the fact that he had been
11 involved at all was unusual.
12 Q Just to further --
13 A And they wanted, you know, the
14 exact words and all of that, which I had at
15 the time, but don't have now.
16 Q And just to clarify, when you
17 say that Mr. Stowell came through the
18 phone, what do you mean by that? Can you
19 elaborate a little bit?
20 A How can I best describe it? You
21 know, it's like he sat up and took notice
22 and, you know, was repeatedly -- you know,
23 he asked me any number of times what had
24 exactly happened. He had more sensitivity
25 to the thing than I did.
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2 Q Did you get the impression that
3 he was surprised or shocked, or what would
4 be the adjective?
5 A Yeah, both of them would be, I
6 think, accurate.
7 Q Okay.
8 A It was their level of interest,
9 you know, in the thing.
10 Q Okay.
11 And do you recall speaking with
12 Mr. Jacobs a little while ago about this
13 concept of causality?
14 A Yes.
15 Q Which I think both of you were
16 using as a shorthand for the relationship
17 between the announcement by Novell and the
18 earnings called by SCO, is that correct?
19 A Yes.
20 Q And so my question for you is,
21 when you think of this concept of
22 causality, what do you have in mind as
23 being the cause and the effect as you
24 understood it?
25 A All right. To recap, my
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1 O'Gara
2 understanding is that -- well, let me
3 rephrase that. It's not my understanding.
4 What happened was that Novell
5 put out a statement saying that it owned
6 UNIX. If it owned UNIX, then SCO didn't
7 have a leg to stand on, and the reason that
8 they were doing it particularly on that day
9 was to impact the stock.
10 Q And when you say that Novell
11 wanted to make a statement that it owned
12 UNIX, do you mean that it wanted to make a
13 statement that it owned the UNIX
14 copyrights?
15 A It owned UNIX, yes, the
16 copyrights and owned UNIX, and that SCO
17 didn't.
18 MR. GONZALEZ: I have nothing
19 further. Thank you.
20
21 EXAMINATION BY
22 MR. JACOBS:
23 Q Do you have any notes of your
24 conversation with Mr. Stowell that you were
25 just recounting?
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1 O'Gara
2 A No.
3 Q How about with Mr. McBride?
4 Q No.
5 Q And just to make sure the record
6 is clear about this, when you said this is
7 what happened, that's a little different
8 from what Mr. Stone told you, right?
9 A No. He told me that that was
10 going to happen, and I put it that way
11 because it is what happened.
12 Q You don't know what happened to
13 SCO's stock price?
14 A No.
15 Q You don't know whether the --
16 A I mean, no.
17 Q Around that time you don't know?
18 A Yeah, I have no idea.
19 Q You don't know whether it, in
20 fact, had what you understand to be the
21 desired effect?
22 A No.
23 Q And what Mr. Stone specifically
24 said was, not that Novell wanted to depress
25 the stock price, but that they wanted to
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1 O'Gara
2 time it, it was your recollection that they
3 wanted to time it so that it would happen
4 at the same time SCO reported its earnings?
5 MR. GONZALEZ: Objection.
6 Mischaracterizes her prior testimony.
7 A Right.
8 MR. JACOBS: No further
9 questions.
10 A Right, I object.
11 Q I'm sorry, I thought you said
12 right, I was right.
13 A No, right, I object. That's not
14 right.
15 Q Well, let's go over it again.
16 What is your best recollection
17 of what Mr. Stone specifically said about
18 why Novell was issuing the ownership
19 statement on the day it was issuing it?
20 A It was because it was the day
21 that they were bringing out their numbers.
22 Q Their earnings report?
23 A Right.
24 Q And that's your best
25 recollection of what he said to you?
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1 O'Gara
2 A Right.
3 Q And that's all he said to you on
4 that topic?
5 A And --
6 MR. GONZALEZ: Objection. Asked
7 and answered.
8 A The object of the game was to
9 impact. Sorry. There's no other logic.
10 Q Again, I'm trying to get this
11 distinction between logic and what he said.
12 You can have your view. I'm not fighting
13 your view of what the logic is. I just
14 need to know what your testimony is, what
15 Mr. Stone said.
16 A He led me to understand that
17 that was the reason.
18 Q What was the reason?
19 A To impact SCO's stock.
20 Q But your best recollection of
21 what he said is that the substance of it
22 was we're timing our ownership statement to
23 be released on the same day as SCO's
24 earnings announcement?
25 A Yes.
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1 O'Gara
2 MR. JACOBS: No further
3 question.
4 MR. GONZALEZ: I have one or two
5 more follow-ups, if you don't mind.
6
7 EXAMINATION BY
8 MR. GONZALEZ:
9 Q Ms. Jacobs, you don't recall --
10 A No, I'm sorry.
11 Q Ms. O'Gara --
12 MR. JACOBS: Or lamb chop.
13 THE WITNESS: Right, as the case
14 may be.
15 Q Is it fair to say you don't
16 recall the specific words that Mr. Stone
17 used when he talked about the causality as
18 you've been saying?
19 A Right.
20 Q But is it clear in your mind
21 that he conveyed to you this notion of a
22 causality?
23 A Yes.
24 Q And specifically that he
25 conveyed to you that the reason for the
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1 O'Gara
2 timing of Novell's announcement was to
3 impact or as you said earlier to upset the
4 price of SCO's stock?
5 A Yes.
6 Q And this conversation took place
7 during the phone, I believe you said
8 earlier?
9 A I'm sorry?
10 Q This conversation took place via
11 the telephone?
12 A Yes, yes.
13 Q So that if he conveyed this
14 concept to you, it would have been done
15 through the words that were coming through
16 the telephone, not through gesture or
17 gesticulation?
18 A That's correct.
19 MR. GONZALEZ: I have nothing
20 further.
21 A Except that laugh.
22 Q Oh, well.
23 So to clarify, it would be
24 through words or through some audible sound
25 that he was making?
Page 104
1 O'Gara
2 A That is correct.
3 Q Including the chortle that you
4 testified earlier about?
5 A Yes.
6 MR. GONZALEZ: Thank you.
7 Nothing further.
8
9 EXAMINATION BY
10 MR. JACOBS:
11 Q And just to be clear, because
12 you're giving different answers to the two
13 of us and I have to reconcile them --
14 MS. FOLEY: Object to that.
15 Q -- he conveyed this through the
16 words that linked the timing of the
17 ownership statement to the timing of the
18 earnings release?
19 A I'm trying to listen very
20 carefully to what you're saying. Could you
21 say that again?
22 Q Sure.
23 He conveyed this through the
24 words that linked the timing of the
25 ownership statement to the timing of the
Page 105
1 O'Gara
2 earnings release?
3 A Yes, I believe the answer to
4 that question is yes, if I understand the
5 way you're using the English language.
6 He told me that they were
7 releasing it on the day. He pointed out to
8 me that that day was the day that they were
9 going to release their earnings. He drew a
10 line between those two events.
11 MR. JACOBS: Thank you.
12 MR. GONZALEZ: I have nothing
13 further.
14 THE VIDEOGRAPHER: This marks
15 the end of tape number one. We are
16 going off the record. The time is
17 1:46.
18 (Time noted 1:46 p.m.)
19
20 ____________________
21 MAUREEN O'GARA
22 Subscribed and sworn to
23 before me this day
24 of , 2007.
25 ____________________
Page 106
1
2 CERTIFICATE
3 STATE OF NEW YORK )
4 : ss
5 COUNTY OF NEW YORK)
6
7 I, Joan Urzia, a Registered
8 Professional Reporter and Notary
9 Public within and for the State of New York,
10 do hereby certify:
11 That MAUREEN O'GARA, the
12 witness whose deposition is hereinbefore set
13 forth, was duly sworn by me and that such
14 deposition is a true record of the testimony
15 given by the witness.
16 I further certify that I am
17 not related to any of the parties to this
18 action by blood or marriage, and that I am
19 in no way interested in the outcome of this
20 matter.
21 IN WITNESS WHEREOF, I have
22 hereunto set my hand this 23rd day of
23 March 2007.
24 ____________________
25 JOAN URZIA
Page 107
1
2 INDEX OF EXAMINATION
3
4 WITNESS PAGE
5 MAUREEN O'GARA...........................6
6
7 Examination by Mr. Gonzalez.......6,93,102
8 Examination by Mr. Jacobs........15,98,104
9
10
11 EXHIBITS FOR IDENTIFICATION
12
13 1080.....................................9
14 190.....................................36
15 191.....................................42
16 192.....................................46
17 193.....................................46
18 194.....................................51
19 195.....................................51
20 196.....................................64
21 197.....................................66
22
23
24
25
monsieur_bobo
conversations with Stone except what she inferred. It's really
unfortunate that Novell couldn't have MOG on the stand in person to
testify about the extent of her ignorance. I guess the tape will have to do.
> 12 BOIES, SCHILLER& FLEXNER, LLP
> 13 Attorneys for Plaintiff
> 14 333 Main Street
> 15 Armonk, New York 10504
> 16 BY: MAURICIO GONZALEZ, ESQ.
> 17
> 18
> 19 MORRISON& FOERSTER, LLP
> 3 of Boies Schiller& Flexner for
> 4 plaintiffs the SCO Group.
> 5 MR. JACOBS: Michael Jacobs from
> 6 Morrison& Foerster for defendant