Comments on: Should You Retain Drafts of Contracts?

By: AdamsDrafting » Blog Archive » The Novell–SCO Litigation: A Lesson in Thinking Through the Implications of Your Drafting

Sun, 04 Apr 2010 15:35:06 +0000

[...] this May 2007 blog post I wrote about the litigation between Novell and SCO. (That post dealt with the implications of [...]

By: Ken Adams

Ken Adams — Thu, 17 May 2007 14:41:44 +0000

Bob: Thank you for pointing that out. Ken

By: Bob Roberts

Bob Roberts — Thu, 17 May 2007 14:32:43 +0000

Although I do believe keeping drafts is very important, in the case you noted, the APA is very clear. The debate is around Copyrights which is covered in “Excluded Assets”.
The depositions from all the folks that worked on the APA, the APA its self, drafts, and Novells board meeting notes all bear this out.
It’s pretty obvious that this is a last ditch effort to avoid PSJ by trying to create a disputed fact where none exist.

By: Mister Thorne

Mister Thorne — Thu, 17 May 2007 03:10:39 +0000

Courts are being asked to spend far too much time trying to figure out what things could possibly mean.

If Braham and his expensive team were handsomely paid to prepare an agreement, why should a judge and a cadre of clerks have to spend umpteen hours trying to figure out what it says?

____________
On a related note:

Politicians complain about activist judges, but then they draft laws so haphazardly that it takes a panel of judges who can’t agree to decide what those laws allow and prohibit.

A good example is the Clean Air Act, which defines an air pollutant as absolutely anything that enters the air. As Scalia noted recently (Massachusetts v. EPA), this includes farts and frisbees.

By: Ken Adams

Ken Adams — Wed, 16 May 2007 19:11:34 +0000

Michael: If you enter into a contract that contains an ambiguous provision, I don’t think you can complain if the court looks high and low for anything that could indicate what the parties had in mind. If you don’t want anyone to look beyond the agreement, then you had better make sure that it’s clear. Ken

By: Michael Fleming

Michael Fleming — Wed, 16 May 2007 18:16:49 +0000

Doesn’t the Parol Evidence Rule still have any meaning? Or, are all contracts now deemed to be so inherently ambiguous that we can always presume that all of the prior discussions, drafts, voice-mails, notes and lunch napkins will come into play every time I draft a contract?

(All sarcasm aside, I hope that we don’t use the idea that all the prior drafts, etc., might come in as a crutch, and still strive to write an agreement that could, in theory at least, survive a parol evidence rule challenge and stand on its own without reference to the crud that preceded it.)

By: Nitin Potdar

Nitin Potdar — Wed, 16 May 2007 06:49:35 +0000

Extremely important point that you have raised. Recently I represented a VC investor, who invested into a French Subsidiary in India. After conducting the legal due-diligence, I had made certain recommendations to protect investment, and accordingly the Investment Agreement was drafted. Disputes arose between the parties on interpretation and intention of parties. The Arbitrators directed us to file my Due-diligence Report along with my recommendations that I made to my clients. Arbitrators relied on my DD Report and my exchange of emails with the Clients to find out the true intention.

The point therefore is not only draft Agreements which exchanged between the two Lawyers or Parties with track changes needs to be retained also internal advice given by way of Memos/ DD Reports to Clients becomes important and at times is helpful.

In today’s world of electronic media it is easy to store documents into proper folders or sub-folders for identification and be retained for some time atleast.