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Day 1 of the Jury Trial, SCO v. Novell - Updated 2Xs - We Have a Jury
Monday, March 08 2010 @ 01:42 PM EST

Happily, cpeterson was able to attend this morning's session.

Update: It looks like that will be all the news for today. They are keeping the public in the hall mainly, to fit all the prospective jurors in, so unless there is something unexpected, tune in tomorrow.

Also, I see questions about what's hearsay within hearsay and things like that, so here are all the Federal Rules of Civil Procedure -- meaning the rules you follow for civil trials in federal district courts, and you'll find every other kind of applicable rule linked on the Utah District Court's Rules page. There are local rules as well, and then judges have their preferences, if you recall the judge's marching orders the other day. If you dig and learn something interesting, please share it in your comments. Thanks.

His report on the morning session, Part 1:

Good morning!

We just got out of the early morning session.

Brent Hatch, Stuart Singer, Ted Normand were at the table for SCO; Sterling Brennan, Eric Acker, and Michael Jacobs in for Novell.

Judge Ed Cahn and Ms. Bonnie Fatell were present in the gallery.

Judge Stewart started out by describing again the jury selection process - the potential jurors will be brought in, and the judge will ask questions from the list, with each potential juror standing to answer.

When they get to questions which can't be answered in front of the other jurors, the individual jurors will go into the jury room with only the judge and counsel for both sides present (I didn't catch whether the selection specialists will be present for that part.)

Then they all re-assemble in the courtroom, the judge gives to counsel his list showing who he has dismissed for cause, and each side gets to exercise their three preemptives.

At that point, the jury is informed of who will be staying and the rest can leave.

Then there will be room in the gallery for the public to re-enter.

Because the two sides had failed to get an introductory statement to Judge Stewart, he created his own. The only objection either side had to the statement was that he had referred to the case being about an 'open source computer program known as Unix'; Mr. Singer asked that the words 'open source' be removed, saying "That would be accurate for Linux, not Unix." Both sides agreed to the alteration.

Mr Brennan then noted that, though tardy, the two sides had agreed on an introductory statement. He asked permission to tender it to the court.

He described the issues which had been troublesome for them, and how those issues had been resolved.

Judge Stewart accepted the proffered statement, but told the two sides that it sounded to him like they would both be trying to argue their cases in intro, so he would probably use his own.

There followed some 'housekeeping' matters, as Mr. Brennan put it. First, about the timing of the testimony of Jack Messmann; that will apparently be late in the trial, but SCO won't be resting their case until he has testified.

There was also some discussion of what items will be allowed in opening statements. SCO would like to use a Wall Street Journal article to prove that Novell had claimed ownership of the copyrights in 2003. Novell responded that they didn't mind, as long as they got to use press articles in their statement as well. Mr. Singer objected, saying that the article Novell wants to use refers to SCO as 'the most hated company in tech' and 'a cornered rat' which has rabies as well. (Those sound familiar - I'll bet we have links somewhere.)

Mr. Hatch also objected to a slide Novell produced late, which is of the minutes of the board of directors' meeting the evening before the APA was signed. Mr. Hatch said that even had it been presented timely, and even if it weren't in opening argument, that it shouldn't be admissible since it was hearsay within hearsay, and SCO planned on objecting to it.

Cutting off here for a bit - my phone battery is dying.

Part 2:
Hello again.

Another issue addressed this morning was the presenting of evidence on items which will be decided by the court. This could be confusing for the jury, says Novell. SCO's position is that everything is proof of slander of title, thus there's no need to separate the testimony.

Judge Stewart said that they'd 'play it by ear' during the course of the trial - if either side had evidence which was about something not before the jury, they could let the jury take an extended lunch or go home early, to avoid having to call a witness back on another day.

Ok, I think I've covered the first half hour...

Outside the courthouse, there was some local press - but they were covering a different trial (one about stolen Native American artifacts - it's hit the news here pretty big since the government's primary witness committed suicide last week)....

Later: The court is in recess at the moment. Jury selection is not complete.

Since hanging around and shooting the breeze with potential jurors is *not* on my to-do list, I'm going to go elsewhere for a bit.

I am pretty sure no opening arguments today - not enough time left.

And his final report on day one, for which we can't thank him enough:
Ladies and gentlemen, we have a jury.

The selection was completed at about 12:30; the dismissed jurors were excused, and the gallery was re-filled with the counsel and staff.

(Want to give yourself heartburn? The calendar showed 12 attorneys for plaintiff, and 14 for defendant. 26 minus the six who were at the tables inside leaves 20 lawyers in the hall. Times hourly billing rates times three hours jury selection.)

We got to witness the jury being sworn in. Then Judge Stewart gave the jury their general instructions, and described to them the meaning of the different levels of proof that they would need to be aware of.

Then he instructed them on not discussing the case with anyone, either in person, via internet, phone, cell phone, text messaging, IM, Blackberry, Twitter, Facebook, LinkedIn, or anything else; and also instructed them to avoid reading, watching, or listening to any news about the case on TV, radio, newspapers, or whatever.

After other general instructions (for example, jurors can take notes, but they can't take their notes home) the jury was excused for the day.

Then there were a couple of final items:

On registration of copyrights. Judge Stewart will not rule that Novell's registration of the copyrights was a priveleged action.

On minutes of Novell's board meeting. Judge Stewart asked, "I would presume the minutes will be substantiated by eyewitness testimony?" Yup, says Novell. "Then I am going to allow the minutes in opening arguments."

(On a related note: the news articles mentioned earlier - denied for both sides. They can use them as evidence during the trial, but they are not to be used during opening statements. The openings are supposed to be free of attorneys leaping up "Objection!"ing.)

And finally, Mr. Brennan requested an extension of the exclusionary rule. Normally, this would prohibit a witness from being in the courtroom while another witness was testifying. Mr. Brennan asked that it be extended to include blogged information.

It took Judge Stewart a few seconds to understand why such a thing would be necessary. Mr. Brennan explained that since the procedings of each day would be "reported on the Internet," reading those reports would have the same effect as listening to the testimony in court. Judge Stewart quickly agreed, as did Mr. Singer.

Done for the day - opening statements bright & early tomorrow!


There will be some things that I actually won't report until it's all done, actually. I'll have to play it by ear, but I hope you'll be patient and realize that if I do delay on something, there's probably a very good reason. And I'd ask for your cooperation. People can make up stories to match if they already know what another witness has said about something, and heaven only knows that is the very last thing we want to see happen. So, it's a time for caution and editorial judgment. For that reason, I'd ask our reporters not to add to anything or correct anything in any comments, including their own. Email me instead, so I can make those judgment calls. Thanks.


Day 1 of the Jury Trial, SCO v. Novell - Updated 2Xs - We Have a Jury | 201 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: The Cornishman on Monday, March 08 2010 @ 01:56 PM EST
Corrections, with the error and correction in the title, if you please, and if
there are any!

(c) assigned to PJ

[ Reply to This | # ]

Off Topic
Authored by: The Cornishman on Monday, March 08 2010 @ 01:57 PM EST
For when you want to talk about something that isn't the lawsuit. Why? Oh, go
on then.

(c) assigned to PJ

[ Reply to This | # ]

Thanks to cpeterson
Authored by: The Cornishman on Monday, March 08 2010 @ 01:59 PM EST
Here, and I'm pleased to be first. Thank you!

(c) assigned to PJ

[ Reply to This | # ]

News Picks
Authored by: The Cornishman on Monday, March 08 2010 @ 02:00 PM EST
For discussion of news picks, please put the title in the subject line.

(c) assigned to PJ

[ Reply to This | # ]

Anything Comes.
Authored by: Erwan on Monday, March 08 2010 @ 02:04 PM EST
Comes transcripts here, please.


[ Reply to This | # ]

Has Judge Stewart read Salus' book?
Authored by: Erwan on Monday, March 08 2010 @ 02:06 PM EST

> an 'open source computer program known as Unix'



[ Reply to This | # ]

The Most Hated Company In Tech
Authored by: Tim Ransom on Monday, March 08 2010 @ 02:08 PM EST
The Most Hated Company In Tech

"He can't say he wasn't warned. In June, 2002, when Darl McBride was getting ready to take over as chief executive at struggling Caldera International Inc. in Lindon, Utah -- later renamed SCO Group Inc. -- he mused that claiming ownership of some of the underlying code in the popular Linux computer operating system could keep the company afloat. Even though Caldera's revenues were declining, it was losing $5 million per quarter, and its stock had slid below the $1 NASDAQ delisting price, the reaction of outgoing CEO Ransom Love was instantaneous. "Don't do it," Love says he told McBride. "You don't want to take on the entire Linux community."

Thanks again,

[ Reply to This | # ]

Unix is open source?
Authored by: bugstomper on Monday, March 08 2010 @ 02:32 PM EST
Either Judge Stewart really understands the subtleties involving the BSD vs
AT&T licensed copyrighted code and how little code might be covered under
non-BSD license in Unix, or else he has demonstrated how unfortunate it has been
that the case moved from a Judge who spent six years learning all the details to
one who is brand new with it.

[ Reply to This | # ]

What does "hearsay within hearsay" mean?
Authored by: Anonymous on Monday, March 08 2010 @ 02:34 PM EST
How can an official document like the Board of Directors' Minutes, be considered
anything but evidence?

Especially so in comparison to SCO's witnesses, who do not have any actual
knowledge of the transaction. The Board of Directors' Minutes are to record the
official business of a corporation. Of course they are evidence!

[ Reply to This | # ]

Late slide on timely evidence?
Authored by: bugstomper on Monday, March 08 2010 @ 02:53 PM EST
The minutes of the board meeting were entered into evidence [PDF] by Novell. Are they not allowed to use a slide to present it to the jury without entering the slide into evidence too? How is that different from talking about it? They don't have to give the opposition in advance the exact words they are going to use, why should they have to show the accompanying slide if it has no more or different information than what has already been entered into evidence?

[ Reply to This | # ]

Attending trial? Daylight time starts next Sunday
Authored by: Anonymous on Monday, March 08 2010 @ 03:00 PM EST
Just in an abundance of caution:

Daylight time begins in the U.S. next Sunday, so don't get to the trial an hour
late next Monday.

[ Reply to This | # ]

PJ Attending the Trial?
Authored by: Anonymous on Monday, March 08 2010 @ 03:13 PM EST
Do you plan to attend the trial?

[ Reply to This | # ]

Some Opening Thoughts
Authored by: TomWiles on Monday, March 08 2010 @ 03:29 PM EST
Neither Novell or IBM put in much of an appearance at Friday's Bankruptcy
hearing. It was really vanilla and I do not know why. IBM could have thrown a
wrench into the entire proceeding by making a seven million dollar cash bid for
the same assets the Yarro is taking. IBM pays more than that to their
attorney's just to file their bills. So why did they not do something?

The only plausible answer is that they know that the copyrights did not transfer
form Novell to SCO. Could the current petition which is before the Supreme
Court be the basis for this position.

I asked a distinguished elder Dallas lawyer for his opinion on the petition. I
can not give his name but (for what it is worth) here is his response to me.

Start of Quote:

If it clear to me that a copyright cannot be assigned except by
written instrument. I've never read the cases but the issues implied
by an "exclusive" license would require it also. Likewise I haven't
read any cases indicating there can be an "implied" license, i.e., a
non-exclusive right to use (which is legally defensible) in the
absence of an explicit writing but necessarily implied by other
contractual arrangements or quasi-contractual courses of dealing. It
might be arguable, but it does strike me as very sturdy.

End of quote.

That puts him right there with Judge Kimball. Now how would you like to be a
Federal Judge, or a retired judge who is involved in this case, where you KNOW
that the position you are supporting is likely to be the opposite of a pending
Supreme Court Ruling!!

My thought is that a few people may be looking over their shoulders on this


[ Reply to This | # ]

The public to re-enter?
Authored by: rsteinmetz70112 on Monday, March 08 2010 @ 03:35 PM EST
Didn't the supreme court recently rule in Presley v. Georgia the jury selection
must be public? That was a criminal case but what the heck.

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 | # ]

Federal rules of evidence:
Authored by: jacks4u on Monday, March 08 2010 @ 05:59 PM EST
Federal rules of evidence #803

I don't see how minutes of a meeting of the board of directors could be called 'hearsay within hearsay'

#803.6 carves out an exception for just such a document, unless it falls into one of the exceptions...

IANAL, but sometimes I wish I were...

[ Reply to This | # ]

Day 1 of the Jury Trial, SCO v. Novell - Updated 2Xs - We Have a Jury
Authored by: Tufty on Monday, March 08 2010 @ 06:19 PM EST
Well, I guess, we will be seeing [redacted] a lot then :). Better to follow the
spirit of the rulings than not.

Linux powered squirrel.

[ Reply to This | # ]

Delay Reporting
Authored by: red floyd on Monday, March 08 2010 @ 06:25 PM EST
PJ: "People can make up stories to match if they already know what another
witness has said about something,"

Certainly you wouldn't imply that witnesses would be violating the modified
exclusionary rule!

I am not merely a "consumer" or a "taxpayer". I am a *CITIZEN* of the United
States of America.

[ Reply to This | # ]

exclusionary rule extension ...
Authored by: nsomos on Monday, March 08 2010 @ 06:31 PM EST
Very nearly the last thing most of us here would want to do,
would be anything that impeded Novell from obtaining a just
and proper result from this trial. I am sure that if
Brennan or other Novell counsel informed Groklaw as to
which witness testimony to delay reporting upon till later,
we would be happy to oblige.

But I am curious how this extension is to be achieved?
Short of barring the public, or gagging Groklaw, or
sequestering some witnesses, how will the desired result
be accomplished? What are the mechanics of this extension?
Does this mean the public and some other witnesses will be
barred during certain witness testimony?

[ Reply to This | # ]

Exclusion rule
Authored by: Anonymous on Monday, March 08 2010 @ 06:51 PM EST
How is this going to work in practice?

Is the judge saying, "Jurors can't read blogs about the case"? He
kind of already did that, didn't he?

Or is this saying that he will tell the reporters "You can't report that
until the case is over"? That would certainly apply to both
"regular" reporters and bloggers, I would expect.

Or is he just going to expect the reporters (and/or PJ) to know what they
shouldn't say, and to self-censor? That seems to me the least workable.

What does he really expect to happen here?


[ Reply to This | # ]

I hope groklaw doesn't practice self censorship
Authored by: rweiler on Monday, March 08 2010 @ 07:42 PM EST
If witnesses want to coordinate their testimony, they surely would do so before
the fact and not afterward. In addition, the onus is on the witnesses, and not
on the press, to make sure they follow the Judge's orders. Journalists in
general do not serve the public interest through self censorship.

Sometimes the measured use of force is the only thing that keeps the world from
being ruled by force. -- G. W. Bush

[ Reply to This | # ]

That "Cornered Rat" Quote
Authored by: sk43 on Monday, March 08 2010 @ 09:30 PM EST
Many, many links. Here is one:

It was made by Torvalds.

"Nothing to lose is a bad situation to be in. They're a cornered rat, and
quite frankly, I think they have rabies to boot. I'd rather not get too close to

Not sure if it will make Bartlett's.

[ Reply to This | # ]

PJ - How do you plan on telling the un-redacted story later?
Authored by: WWWombat on Monday, March 08 2010 @ 09:47 PM EST
There will be some things that I actually won't report until it's all done, actually. I'll have to play it by ear, but I hope you'll be patient and realize that if I do delay on something, there's probably a very good reason.
There are probably very few who could do a better job, so I would be surprised if anyone fails to concur.

But I would like to know how you plan to fill in the story afterwards? For example, by having extra day-by-day articles that get written, but not published, so we can see how your thoughts develop throughout the trial? Or by a single mega-catch-up at the end?

[ Reply to This | # ]

Minutes of board meeting - Day 1 of the Jury Trial, SCO v. Novell - Updated 2Xs - We Have a Jury
Authored by: Anonymous on Tuesday, March 09 2010 @ 11:50 AM EST
'On minutes of Novell's board meeting. Judge Stewart asked, "I would
presume the minutes will be substantiated by eyewitness testimony?" Yup,
says Novell. "Then I am going to allow the minutes in opening

This I think is a good thing.

[ Reply to This | # ]

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