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The Hon. Ted Stewart and the Hon. Tena Campbell
Thursday, August 27 2009 @ 01:43 PM EDT

I have gotten emails asking me to explain what the appeals court ruling means. Other than what I already wrote, the simple truth is this: nobody knows, most especially me, at this point. It's so complicated, with the trustee being appointed. I see clearly, I think, what SCO's plan was in their vision of a perfect outcome, including in AutoZone, but now the appointment of the Chapter 11 trustee changes so much. And we don't know yet if there will be any attempts to further appeal or ask for en banc review. So, we will have to wait and see what happens. As soon as I can make out anything from the mist, I'll surely tell you what I see. But I can't write what I don't know.

In the meantime, would you like to meet the two new judges assigned? I don't even know if those assignments are permanent, in that one of the new judges assigned used to work for Sen. Orrin Hatch, and Hatch's son represents SCO, so who knows? Could there be another recusal? It's conceivable. Let's assume that things are set in stone, though, for now, and let me introduce you to the Honorable Ted Stewart and the Honorable Tena Campbell.

The Hon. Tena Campbell is the Chief Judge, and she is assigned to SCO v. IBM. Her bio is here. She was appointed by President Bill Clinton, as was Judge Stewart, the judge assigned now to the SCO v. Novell case. That doesn't mean they were his picks, just that they were appointed during his presidency.

Judge Campbell is an Idaho girl, which likely means she knows how to ride a horse and glean potatoes and enjoy a very big sky. She was educated in Arizona, and worked as Assistant U.S. Attorney and then Deputy County Attorney in the Salt Lake County Attorney's Office before entering private practice. So she is a Utah transplant. I must say, I like the sound of this:

A copy of all proposed orders must be directly e-mailed to Judge Campbell's chambers at the following address: [PJ: email redacted]. Proposed orders e-mailed to chambers must be editable and submitted in either WordPerfect or Microsoft Word format.
At least she knows how to use email, and she's heard of WordPerfect. That's a start! I'm just kidding. Utah is one of the most advanced court systems as far as tech is concerned.

Kidding aside, then, she's not only heard of WordPerfect, she seems to prefer it. If you download her template jury instructions for civil trials or her trial order, they are in WordPerfect format. A lot of lawyers love WordPerfect, actually. I do too. I just love the freedom of GNU/Linux, but WordPerfect is wonderful software, particularly for law offices, because it does footnotes and headers so beautifully and can see who corrected what in all drafts of a document.

Here's the bio of Judge Ted Stewart, now assigned to the SCO v. Novell case remanded back to trial, so he'll be in charge of that. Yes, he used to work for Sen. Orrin Hatch, whose son represents SCO in this litigation, but it was way back in 1980. Utah isn't a hugely populated state, and Sen. Hatch likely has ties to pretty much everyone after all these years. But there is no question it feels a little funny, which is why it wouldn't amaze me if he recused himself or if someone raised that issue. But if you recall, Judge Dale Kimball was suggested by Sen. Hatch and then appointed by President Clinton, and it didn't influence him in SCO's direction or the opposite, or in any direction except what he thought was the right direction. I believe in the end, should there be further appeals, he'd be upheld.

Judge Stewart has proposed orders sent to his case manager, and he prefers WordPerfect also. He doesn't accept PDFs. You can find his instructions at the link. And here's his bio at the court.

Here are instructions on how to handle WordPerfect files if you only have an older version of Word. That lover of interoperability, Microsoft, makes us learn such things. Or, just download and you can open pretty much everything, and i4i has no patent claims on OOo either, another advantage.

It's a good thing for Boies Schiller that discovery is over. Look at this instruction from Judge Stewart:

Page limitations for memoranda are set forth in the Local Rules. Exceptions are rarely granted and only upon a showing of good cause.
That would seriously cramp their style. Speaking of style, did you notice that the appeals court didn't let them get away with bringing up something new only in a reply? It's the first time anyone has called them on it, that I recall, and it cost SCO $3 million, more or less:
In its opening brief on appeal, SCO appeared to contest only the district court's finding that the 2003 agreement constituted an "SVRX License." SCO argued that the district court erred by concluding that a licensing agreement entered after the closing of the APA could constitute an SVRX License. Whatever the merits of this argument, SCO neglected to challenge the alternative, independently sufficient basis for the district court's ruling--that its 2003 agreement with Sun represented an impermissible amendment to an SVRX License. An issue or argument insufficiently raised in a party's opening brief is deemed waived. Headrick v. Rockwell Int'l Corp., 24 F.3d 1272, 127778 (10th Cir. 1994). Although SCO addresses this issue in its reply brief, the general rule in this circuit is that a party waives issues and arguments raised there for the first time. See M.D. Mark, Inc. v. Kerr-McGee Corp., 565 F.3d 753 (10th Cir. 2009).
All judges have styles, and while Judge Kimball let them fudge a little, being so laid back, and Judge Gross lets them do whatever, the appeals court noticed and held them to the rules. That part of the ruling was refreshing.

Here's Judge Stewart's official court bio:

Judge Ted Stewart was nominated by President Bill Clinton on July 27, 1999, to the United States District Court of the District of Utah. He was confirmed by the U.S. Senate on October 5, 1999, and sworn in on November 15, 1999.

Prior to becoming a Federal District Court Judge, Mr. Stewart served as Chief of Staff to Governor Michael O. Leavitt (R-Utah) from March 1998, to November 1999. From January 1993, to March 1998, he served as the Executive Director of the Department of Natural Resources for the State of Utah.

Stewart served as a member and chairman of the Utah Public Service Commission for seven years. During his tenure the Commission issued more than 1500 orders, including 34 major rate cases. In addition, Mr. Stewart was in private law practice for six years, served as Chief of Staff to Congressman Jim Hansen (R-Utah) and was Executive Director of the Utah Department of Commerce. He has been a visiting professor at both Utah State University and Weber State University.

Judge Stewart graduated with a B.S. degree from Utah State University and obtained his juris doctorate degree from the University of Utah.

If you are curious, here's Judge Kimball's bio, and as you can see, it's incredibly impressive, with many honors and awards and writings and achievements in a long and much admired career. I collected more information in this article way back in 2003, and you'll see why so many admire him. The way SCOfolk tried to smear him was, to me, one of the lowest points of this nauseatingly low saga, and if you noticed the appellate ruling did not follow their lead. It was respectful of him, although reversing in some respects on a point of law, one that, should anyone bother to appeal, I suspect would affirm Judge Kimball anyway. I admire him myself very much. I only hope he hasn't received the kinds of threats I get. Judges do get that sometimes.

Judges are worthy of our deep respect, I believe, even when we may disagree with their decisions. It is the fundamental underpinning of a civilized society. And the US system is set up with many checks and balances, to factor in and account for the fact that we are all only human. Mistakes can happen, wrong decisions issue sometimes, but there are ways to address that and work within the setup toward the justice that the system is designed to provide.

One last factoid. According to this 2007 article in the Salt Lake Tribune, "the Denver-based 10th Circuit second-guesses federal judges in several states, including Utah. In 2001, according to a Salt Lake Tribune review, Utah's federal judges were reversed 14 times out of 115 cases. Over five years, Utah judges were overturned 18 percent of the time."

The article seems a bit snarky, and the truth is, those stats could reflect on Utah; or, frankly, it could reflect on the 10th Circuit. It did seem to me that they stood on their heads to reverse. So maybe there is a human explanation, much simpler than any legal point. Maybe they just like to reverse Utah. Don't you have relatives like that, where you love each other but can't agree about absolutely anything? You say up and they say down? That can happen with courts too. What would be interesting to study next is how often the 10th Circuit then gets overruled by the Supreme Court. That would give context to these figures.


The Hon. Ted Stewart and the Hon. Tena Campbell | 181 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections thread here please
Authored by: nsomos on Thursday, August 27 2009 @ 01:59 PM EDT
If there are any corrections, please post them here.
It may be helpful to summarise in the title.

[ Reply to This | # ]

The off-topic thread
Authored by: nsomos on Thursday, August 27 2009 @ 02:00 PM EDT
This would be the place to post off-topic.
Try to use clickable links if possible.
Follow the example in red at bottom of reply box.

[ Reply to This | # ]

Newspick discussion thread
Authored by: nsomos on Thursday, August 27 2009 @ 02:02 PM EDT
Newspick Discussion Here, Please

Some of us are not mind readers, so a hint as to
which newspick you are posting for, would be most helpful.

[ Reply to This | # ]

Sympathy for Darl thread ... :)
Authored by: nsomos on Thursday, August 27 2009 @ 02:04 PM EDT
I fully expect this 'Sympathy for Darl' thread to be empty.
But I would not be surprised to have some wisecracks anyway.

[ Reply to This | # ]

Authored by: rsteinmetz70112 on Thursday, August 27 2009 @ 02:06 PM EDT
Many Law Firms in our area, even large ones, still use WordPerfect. Apparently
it is still better at the strict formatting courts require. will open WordPerfect files just fine but on Windows, at least, I
don't think it is installed by default to recognize that it can. You might need
to do a little messing around to get it to automatically open .wpd files.

I wonder if we will see any of those from the Judge. I'd imagine the reason is s
the files can be easily edited. I imagine the actual orders will be in PDF

Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

Se. Hatch appointed a federal judge?
Authored by: Anonymous on Thursday, August 27 2009 @ 02:06 PM EDT
But if you recall, Judge Dale Kimball was appointed by Sen. Hatch
I thought that federal judges were appointed by the executive branch (basically the president) and the appointment was confirmed or denied by the senate as a whole.

Or did Sen. Hatch appoint Judge Kimball to some state level judgeship in a prior lifetime?

[ Reply to This | # ]

Perhaps an explanation for Kimball recusing himself....
Authored by: Anonymous on Thursday, August 27 2009 @ 02:25 PM EDT

From the linked article:

It's routine practice for many of Utah's federal judges to remove themselves from cases where they've been reversed.
If that's accurate, perhaps it's a "best practice" rule with the state bar in Utah.

Would anyone be able to confirm such a thing?


[ Reply to This | # ]

The Hon. Ted Stewart and the Hon. Tena Campbell
Authored by: Anonymous on Thursday, August 27 2009 @ 02:39 PM EDT
It was only 12% in 2007, so they must have ha a few bad years earlier. How
many of those sent back were affiremd during the second trial?

[ Reply to This | # ]

Campbell Caught Contributing to Obama
Authored by: Anonymous on Thursday, August 27 2009 @ 03:49 PM EDT

[ Reply to This | # ]

Request for PJ
Authored by: Anonymous on Thursday, August 27 2009 @ 03:53 PM EDT
"I see clearly, I think, what SCO's plan was in their vision of a perfect
outcome, including in AutoZone, but now the appointment of the Chapter 11
trustee changes so much."

Could you clarify what you think SCO was trying to do (lately)? I think I see
some of it (trying to survive, mainly). But I don't see how AutoZone plays into
this at all. I mean, I get why they sued them initially, but I don't see any
relevance to the recent moves except just playing out the string. And in all
this, I probably see a lot less than you do.

I'd be very interested in hearing your thoughts.


[ Reply to This | # ]

Groping in the mist...
Authored by: webster on Thursday, August 27 2009 @ 05:46 PM EDT

Since PJ can't tell what is going on, one has to speculate.

  1. What did the appeals ruling mean? The Appeal judge wants SCO to have a jury trial. So there will be a jury trial. PJ thinks the decision is reversible. It is worth a shot. The judge really strained to "ambiguatize" the APA. He also defied copyright law which was designed to avoid ambiguity and litigation. It is worth a petition for rehearing for more justification or reversal. Then a shot with the Supremes who might opt for the uniformity and predictability of Federal Law. They have 14 days to file a petition for rehearing of the panel or en banc[September 8 due to Labor Day]. They better have some authority and aim it at the judges who didn't write. McConnell, the writing judge, will be gone. The standard is tough: "The petition must state with particularity each point of law or fact that the petitioner believes the court has overlooked or misapprehended and must argue in support of the petition." FRAP 40(a)(2). For a rehearing by the whole court, en banc, the timing is the same, but the standard is different, also tough and very much discouraged: "(1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or (2) the proceeding involves a question of exceptional importance." FRAP Rule 35(a). Their are two keys. First is finding conflicting authority. The second is raising the issue without calling the court stupid implying anything about the court's intelligence or fairness. Unfortunately, there is little authority for the obvious, that one can't convey a copyright that isn't his or specified. Whatever exists they will find. Judge McConnell stretched for the exceptions. All they need is one Judge to call for a vote. That one judge could say there may be something obvious and simple that could cause them all to be reversed. It is interesting that no response is permitted unless asked for by the court.
  2. The Chapter 11 Trustee changes so much. This trustee is a powerhouse. He is old. He is eminent. He has a blasted courthouse named after him! He will listen to everybody, do his own studying, and make his own decisions according to his role. Judge Gross will be able to put great confidence in his recommendations which is a polite way of saying who overshadows whom. It is a new start. He acts for SCO. He is not worrying about anybody piercing his veil. His is not worried about his percentage of billions. He can talk to all parties. He has no obligations to attack open code or maintain FUD. He won't throw away even a weak claim if settlement is reasonable. He can listen and learn before he starts to talk but he doesn't have much time unless....
  3. The New Deal. Does someone want to invest in SCO? Are they associated with current management? Will they pay all creditors and finance appeals and trials and appeals of those trials for years? They will have to clarify this deal first before the trustee, before the trustee would ever put it before the court. It will take a compelling offer to avoid an auction. If there is only one interested bidder, that will say something, too. What will he think about the state of the code evidence, the waiver by GPL, retrying Novell? Will his ethics obstruct SCO's lust for billions? Without a new investor this is over. The FUDsters don't want the trustee looking into the litigation. They want him to do the deal and get them out of bankruptcy and back in control.
  4. A Non-PIPEdream Suggestion. How about the trustee making a deal between SCO and Novell to spin off the Unix business as before with improved terms and clarifications, then to allow SCO and the eager bidder to continue their litigation only as to past conduct and damages? This would shrink the billions but enable a product to continue without a stigmacloud. The FUDsters could pay the creditors and set up the New New SCO and still pursue the lesser billions and keep some bloggers interested and amused.


Tyrants live their delusions. Beware. Deal with the PIPE Fairy and you will sell your soul.

[ Reply to This | # ]

A Stewart and A Campbell!
Authored by: iceworm on Friday, August 28 2009 @ 02:44 AM EDT

Hmmm... Well, the spelling is different (Stewart not Stuart), so I guess my initial reaction to the combination was a bit over the top. My mother's maiden name was McBride, so I have an uneasy interest in Darl's behavior. Sigh. This has been going on so long I have forgotten the point.

[ Reply to This | # ]

Michael O. Leavitt?
Authored by: The Mad Hatter r on Friday, August 28 2009 @ 06:56 AM EDT

He used to work for Michael O. Leavitt?

Ouch. Michael O. Leavitt for those who don't know was head of the Environmental
Protection Agency, and during the time he was head of the Agency tried to do his
best to eviscerate pollution rules, to the detriment of the American public.

Michael O. Leavitt is not one of my favorite people, and yes, I have meet him.


[ Reply to This | # ]

Off Topic
Authored by: vadim on Friday, August 28 2009 @ 11:21 AM EDT
I remember some time ago there was a thread on ownership of hearing transcripts made by court reporters.

It seems there is now verdict on the issue that says: Court Says Court Reporters Do Not Retain Copyright On Transcripts They Prepare

[ Reply to This | # ]

Authored by: thyrsus on Friday, August 28 2009 @ 11:28 AM EDT
"according to a Salt Lake Tribune review, Utah's federal judges were
reversed 14 times out of 115 cases. Over five years, Utah judges were overturned
18 percent of the time."

Is it the case that the appeals court, like the supreme court, can decline to
hear an appeal without explanation? And that therefore these 115 cases
represent only those which passed some threshold for appeal, and are
unrepresentative of perhaps a majority of cases where the outcomes were
unchallenged or allowed to stand without further hearings? And thus this
reversal rate is either typical or perhaps even low?

[ Reply to This | # ]

    thanks Judge Kimball
    Authored by: Anonymous on Friday, August 28 2009 @ 01:21 PM EDT

    So... If I buy a starbucks gift card and send it to Judge
    Kimball in appreciation for his work on the SCO case,

    a) would it be ok for him to accept it and
    b) does he drink coffee?

    [ Reply to This | # ]

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