Here is the transcript of day one of the jury trial in Novell v. Microsoft before the Hon. J. Frederick Motz, as text. This would be, then, October 17, 2011 [PDF], and the litigation was regarding antitrust, based on Microsoft's allegedly anticompetitive behavior regarding Novell's WordPerfect in 1994 through 1996.
The trial ended in a mistrial, because one juror held out for Microsoft on the issue of damages, after the entire group of twelve agreed that Microsoft was guilty of anticompetitive behavior. The trial had not been divided into phases, as you saw happen in Oracle v. Google, and so the decision had to be unanimous on both issues, so when it wasn't, it resulted in a mistrial. Interestingly, all 12 jurors made it all the way through to the end of the trial, and they didn't set any aside as alternates, so all twelve took part in the decision. We are waiting to find out if Microsoft's renewed motion for judgment as a matter of law will be granted by the judge, after a hearing scheduled for this month on the 22nd. If not, there will be a second trial. Either way, there will almost certainly be appeals. So our primary purpose on Groklaw is to make a permanent record for historians of the evidence in this first trial. But if you notice something that reminds you of an exhibit from the Comes v. Microsoft trial, by all means say so in your comments, as it will help new folks get their bearings. And just as the Comes exhibits showed up in Novell v. Microsoft, exhibits in the latter trial may show up in future litigation. One never knows. But spreading knowledge is what Groklaw is for. If you have questions about what you read, I'll try to answer, as I have time.
Opening day was a short day, mainly the judge giving the jury its instructions, because the jury selection took up time in the morning and when the judge suggested to the lawyers that they go ahead and do their opening statements, they didn't like the idea, since they had relied upon having one more day to prepare. The next day was opening statements, therefore, and that's when the trial began in earnest. For anything that matters, go by the PDFs, as always. We strive for accuracy, but we are only human, so mistakes are possible. We have made one change on purpose, removing the line numbers, so that those who rely on screen readers don't have the annoyance of having to listen to line numbers being read aloud constantly.
I'll be posting the transcripts one per day for a bit, until we have it all done, or at least that's the goal. All the transcripts are here, as PDFs. All the filings in the case are here.
*********************
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
In re:
NOVELL,
Plaintiff,
vs.
MICROSOFT,
Defendant.
_____________
Case No.
2:04-CV-01045JFM
_____________
BEFORE THE HONORABLE J. FREDERICK MOTZ
October 17, 2011
Partial Transcript of Jury Trial
________________
Laura W. Robinson, CSR, RPR, CP
[address, phone]
Appearances of Counsel:
For the Plaintiff:
Jeffrey M. Johnson
John E. Schmidtlein
James Robertson Martin
Miriam R. Vishio
Attorneys at Law
Dickstein Shapiro LLP
[address]
Max Wheeler
Maralyn M. English
R. Bruce Holcomb
Attorneys at Law
Snow, Christensen & Martineau
[address]
For the Defendant:
David B. Tulchin
Steven L. Holley
Sharon L. Nelles
Adam S. Paris
Qian A. Gao
Attorneys at Law
Sullivan & Cromwell
address
James S. Jardine
Attorney at Law
Ray, Quinney & Nebeker
[address]
2
Salt Lake City, Utah, October 17, 2011
(Partial Transcript)
THE COURT: Let me just make a few preliminary remarks
to you and then you are going to be free to go. I was just
telling the lawyers that they have been so efficient that
we'll start with the opening statements right away and then
they laugh because that would not be very fair since they
thought they had a day to prepare for them.
Let me -- number one, I know I have been cursed with a
very soft voice. So if any of you can't hear me at some
point, remind me to speak into the microphone and I will try
to do that. It has been a problem for me for a long, long
-- well, all my life.
Let me introduce myself again. My name is Fred Motz
and I am a Federal District Judge in Baltimore and I just
happen to be here because they're stuck with me because I
made some pretrials rulings in the case and it is easier for
me to come out here than to dump it on another judge and try
to get it on his or her docket. Everybody else will be
introduced to you during the course of the trial. The court
reporter here is obvious. I think some people will be
coming in to do daily copy, but the official transcript will
be done here. The courtroom deputy has lots of jobs. The
most important one is, as far as I'm concerned, is if you
have got any questions please ask her. I have already
3
learned in half a day she is delightful to work with and you
will see that as well.
As soon as I'm finished up, she is going to just sort
of orient you to the jury room and things of that nature to
get you to feel comfortable. Now, you will notice that
there are 12 of you and, of course, that is a little unusual
though. In a civil case in federal court we can actually
try a case with as few as six jurors. We pick six extra
people because of the length of the trial. But all of you
who are still here at the end will deliberate. Nobody has
been selected as an alternate. If all of you are here, you
will all be fully participating jurors when it comes time
for you to engage in deliberations. I hope you all 12 will
remain healthy and that things work out well and you'll be
here at the end. We certainly are planning that, but if
somebody -- but if you are here, you will deliberate. That
is not an issue.
Let me tell you a little bit about the schedule. I
think you all know already, but if I get it wrong, I forgot
to bring my calendar with me. We are going to try to get
started at 8:30 in the morning and finish by about 1:30. We
will not have any lunch break, is that right? Maybe a 20
minute break. I am bringing in a light lunch.
THE CLERK: We will have a light lunch.
THE COURT: You will have a light lunch break to keep
4
us all nourished, but then you all will be free to go. That
is not because the lawyers aren't working, they're working
very hard and I can assure you they are, there are issues in
the case I have to resolve them. We worked back in
Baltimore for three days getting the case ready and continue
to do that.
Once in a while, we're going to have what is called a
bench conference. And -- excuse me, I will tell you about
the schedule. The schedule is usually about 8:30 to 1:30
with one short break and a light lunch. We will be sitting
-- I'll tell you now when we will not be sitting. I will
sit Monday through Thursday just about every week except
one. We will not be sitting this Friday because I still
have a case back in Baltimore that I have to get back on
Friday to keep my docket going. Next week we will be
sitting Monday, Tuesday, Wednesday and Thursday but not
Friday. The following week I have a pretty -- I have a
conference I have to go to so we're not going to sit at all
that week. That is the week of what, October 31st.
MR. TULCHIN: October 31st, Your Honor.
THE COURT: You will not sit at all the week of
October 31. The following week we --
JUROR #5: Could we get a schedule?
THE COURT: Good question. We will not sit on the
11th. We will sit on the 18th. The other important thing
5
for to you to know without a schedule but you should have
one is that we will not sit on the week of Thanksgiving.
We're only going to sit on Monday and Tuesday. We're not
going to sit Wednesday, Thursday and Friday thinking it
would be an inconvenience to you.
If the case goes into December, we will sit the week
of the 2nd and the week of the 9th and the week of the 16th
although I hope we won't because I have got lots of
proceedings scheduled back in Baltimore. But if I have to
cancel, I will cancel them. So early on the most important
thing is this week we will not sit on Friday. Next week we
will not sit on Friday. And the following week we will not
sit at all the week of the 31st. And we will not sit on
Wednesday, Thursday or Friday of Thanksgiving.
Now, I was about to mention how hard the lawyers have
been working. They're going to continue to work hard. We
will have, from time to time, bench conferences when the
lawyers will come to the bench to discuss an issue which
comes up. We are going to try to do everything we can to
minimize the bench conferences. Counsel has gotten to know
me well enough to know I try to spot issues in advance and
when you all are here I would much rather have testimony
being taken rather than us having to discuss issues that we
could discuss outside of the presence of the jury for that
matter. Number one, it is a more efficient use of time; and
6
secondly, and more importantly, it is a courtesy to you all.
You all are doing this civic duty and it is a wonderful
thing you're doing and we want to make it as convenient for
you as possible. So we will try to minimize bench
conferences but inevitably we will have them from time to
time. We also will be getting started as soon as you all
are here in the morning. I'll be here, the lawyers will be
here, and we will resolve issues and counsel again going I
don't think I have disdain more than asking jurors to hurry
up and wait. When you all are here, I want to get started
and that is what we will plan to do.
You will see from time to time lawyers will object to
evidence which is introduced. We will try to work out
objections in advance. Sometimes that is a job. I want to
make you understand from the outset that when lawyers object
to evidence, it is not because they are trying to hide
something from you. It is important for you to understand
that. They're not trying to hide something if they object
to evidence. You all have a very important job. You are
judges just as much as I am a judge. I have to rule on
issues of law, you are the judges of the facts. But you can
base your verdict only upon evidence which is legally
admissible. And the only way that I have to rule upon that,
and the only way for lawyers to find out whether or not I
think something is legally admissible or not is to object.
7
When they object, they are not trying to hide something,
they're simply doing their job. They're serving their
clients but also serving the system of justice. You may see
the lawyers from time to time around the courthouse probably
that is inevitable and they won't talk to you. I am quite
confident the one thing I'm sure of is they would obviously
want to talk with you but they can't. They are under court
rule not to talk to you while the case is in progress. So
don't think they may be -- they may smile but they can't do
anything more than that. Also, please don't talk to anybody
connected with the case. A witness or anybody else. This
is very important. Back in Baltimore I can remember jurors
have good sense but I remember once that a juror was seen
talking to a witness who lived in York, Pennsylvania which
is about 45 minutes from Baltimore. And all she was asking
is do you know somebody who she knew who lived in York. But
we had to inconvenience the jury. We had to bring her in
and say what were you talking about. And it was nothing.
But I don't want you all to be inconvenienced by the fact
that you're talking to someone. You're seen -- I know you
all wouldn't talk about anything about the case to anybody,
but don't even talk to somebody connected to the case
because then somebody will see you and ask you what it is
all about.
Now, the next piece of advice is going to be very,
8
very difficult to follow but you have got to do it and it is
very important. This is a long case. You are going to be
with your family and friends day in and day out and you will
see people when you go out on weekends. But you can't talk
about the case with them. After the case is over, you can
certainly talk about the case, we hope you talk about the
case, we hope you talk about the experience and it is a
great experience, but you cannot talk about the case. Now
again, I'll tell you a story which is true. Unfortunately
my wife was selected on a jury in Baltimore, and when she
came home the first thing I did was oh, you get selected,
what is the case all about? And she looked at me with even
greater disdain than she usually does. Just saying that she
never did. So don't talk about the case and I know how hard
it is.
The next piece of advice is also important and I want
you to follow it. Don't talk about the case to one another
either. That may seem strange I mean you are all hearing
the same case. The reason -- the other is obvious you are
the only one hearing the evidence. We don't want extraneous
opinions about what the case is all about. Sometimes it is
a little less obvious why you can't talk about the case to
one another. And that is because as the lawyers and judges
often say, a trial is a jigsaw puzzle. You're not going to
know how it all fits together until you have heard all of
9
the evidence, until you have heard all of the arguments of
counsel, and until I have instructed you on the law. And
judges fear that if jurors start to talk to one other about
the case, all of a sudden they stake out a position from
which they find it hard to retract as other evidence comes
in. Frankly, I think it is more important that you
understand the reason for the rule. You have to obey the
rule but the only thing is don't sneak out and stake out a
position with a fellow juror until you have heard all of the
evidence. This is a real trial. I can assure you that.
Incidentally, if I, and I hope I never do, but during the
course of the trial if I indicate to any of you anything
related to a factual matter disregard any expression on my
face, I hope I don't have any, but they are real facts for
you to decide and it is there for you alone to decide. And
so it is an important job you all have.
The other thing is, and we never used to talk about
this, but you have to watch out now, don't use the internet.
We used to tell people if there was an auto accident or
something don't go out to the scene and see how the road
looks itself. It is much more complicated than that. You
all now, many of you, you know my grand kids are much more
-- they are under five, but they are better than I am on the
computer. I can use the computer, I can do internet
research but don't do it. You have got to base your verdict
10
entirely upon what you hear in this courtroom. Maybe
conscientiously you may think I'm just going to go find out
about this and don't do it. You have to base your verdict
upon what you hear in the courtroom and don't do any
internet research. Don't connect with one other by e-mail
or Facebook or anything like that. There are cases where
people have actually, jurors were communicating in
Baltimore, and communicated with each other with Facebook
and somebody found out later they have done that and that
has been considered to be a potentially inappropriate
conversation because we want you all only to talk to one
other when you're all present when you deliberate. Don't
try to do anything conscientious by researching something.
You can't do it. Don't read blogs or something. This case
may have some notoriety. Don't read anything about the case
on the internet. Don't read about it in the newspaper. If
there is something in the newspaper, just say I know about
that case because I hear about it every day and put the
paper down. If something comes on the radio or television,
same thing. Something on Novell or Microsoft, turn off the
radio. The reason is obvious, in fact, two reasons. Number
one, I may have ruled upon something which I don't think you
should hear so then you would hear it if you listen. But
secondly, even things you all hear about we want your views
of them not according to what a reporter says about it. So
11
that is -- make sure you don't read about the case.
I hope I am not violating local practice when I say
this, and I may retract it tomorrow, you may take notes if
you want to. Pads and papers will be provided.
Particularly in a long trial, I think it is important for
you to do that. I want to give you a couple of cautions
about taking notes if you take them. You don't have to take
notes, but if you do, most importantly don't become so
involved in taking the notes that you don't watch the
witnesses. We all know with every day experience that one
of your jobs is to determine who is telling the truth or
not. And we all know from every day experience that you
sort of sense what people are like by watching their body
language as well as by listening to what they have to say.
So if you take notes, don't be like the court reporter
taking everything down, make sure that you continue to watch
the witnesses. Secondly notes are only an aid to the person
who took them. They are helping you refresh your
recollection. Someone who took notes should not be listened
to when you begin to deliberate more than somebody who
didn't take notes. People's minds work differently and some
people may think I can do my job better by not taking notes.
Also, notes are not an official transcript and so what is
written down should not be considered to be verbatim. I
think we will try to have daily transcripts prepared as the
12
case goes along, but you all will not have the transcripts
with you in the jury room. I don't think so. So if you
need to hear testimony read back, we can do that, but we're
not going to send back piles and piles of transcripts. The
evidence, the exhibits that have been admitted into
evidence, we will let you have, but not the testimony.
The other thing I want to tell you about notes is we
will collect them at the end of every -- when you go out to
lunch or when you go home at night. But if by any chance
your mind has wandered and you doodled or something, don't
worry about it. Nobody reads your notes. They're your
private business. It is a long trial and nobody -- so
nobody is going to be looking over your notes when we have
them. We just have to keep them. Cell phones, I don't know
what the rules are here, but clearly when you come in the
courtroom, you have to have the cell phone turned off
because we don't want any disruption.
The only thing I have not mentioned is some judges
pick the foreperson at the beginning of the trial. I don't
do that. I actually let jurors do that themselves as their
first order of business when you begin to deliberate. So
none of you have been pre-selected as the foreperson or
forelady. That will be something for you all to do when you
begin your deliberations and I will just let you know that.
You may hear some terms during the -- in a civil case
13
like this it is very -- one of the reasons the trials can be
efficiently run is lawyers engage in what is called
discovery. They can find out what the other side -- what
the case is about. And there are various things, I won't
mention them all, you may hear a couple of terms during the
course of the trial just to let you know what they are.
Interrogatories. An interrogatory is a written question
that one side asks of the other and then the answer can
sometimes be read into evidence. But I don't know whether
that is going to be done in this case or not, but there will
be -- that is what an interrogatory is. It is a formal
question sent by one side to the other and the other side
answers it under oath and it can be read. The other one is
a deposition. You will hear about a deposition.
Depositions are basically a witness appears, there is no
judge present, there is a court reporter present and the
witness is under oath. And depositions can be used for a
lot of things during the course of a trial. If somebody
appears as a witness here, you can use a deposition if you
think that somehow the testimony is different than what the
witness testified to in deposition. You can ask the witness
about what you think the inconsistency is. Also, some
people's depositions depend on what the technical rule is
whether a party is within 100 miles of Salt Lake City. But
you can also read into evidence and some times by video
14
conference or sometimes just reading it in, you actually
will not have witness appear you will have his or her
testimony read to you or also see a videotape of the
deposition. I think that will happen from time to time.
That is what a deposition is. It is something taken before
trial, under oath, no judge is present, but the lawyers for
both sides are present.
Now, the next thing I want to tell you, and I may
change this a little bit tomorrow, obviously this is not a
simple automobile accident case. It is scheduled for six to
eight weeks and I think you know enough about it from the
questionnaire to know it is an -- it is an antitrust case is
what it is. Let me tell you a little bit about what it is
about.
Now the plaintiff is Novell, Inc. and the defendant is
Microsoft. Now, Novell and Microsoft both develop and
market products for computers, including computer software.
And during the trial you will hear a lot about software
applications and personal computer operating systems. As
you probably know, personal computers are commonly referred
to as PCs. That is something that people use the term PC.
Now, they can be categorized by the microprocessors that
they use. An Intel compatible PC is one designed to
function with a microprocessor manufactured by a company
known as Intel. Intel is not a party here, but that is --
15
that is what an Intel compatible PC is. And during the
period of time relevant to this case, and by the way the
period of time that is relevant to this case is 1994 to
1996. It is not present, it is looking back in history I
think specifically March of '94 to November -- no, I have
got that backwards. March or -- is it '94 to '96? We'll
tell you more, whether it is March of '94 to November '96,
or November '94 to March '96. Anyway but I think it is
November '94 to March '96 but it is -- it is old business.
But during that period of time, an operating system designed
to run on Intel compatible PC would not function on a
non-Intel compatible PC and vice-verse. For example, I
think you know Apple and Macintosh. Macintosh PC's would
not work on an Intel compatible PC and an operating system
written for an Intel compatible PC would not work on
Macintosh. When I use the term PC operating system and I
expect when the lawyers use the term during the course of
the trial, they will be referring to Intel compatible PCs,
PC operating systems. So that is what PC operating system
will mean.
Now it is undisputed during the period of time
relevant to this case Microsoft had a monopoly in the market
for PC operating systems, specifically Intel compatible PC
operating systems. Now, I want you to know at the outset a
mere possession of monopoly power, if lawfully acquired,
16
does not itself violate the antitrust rules. A monopoly's
conduct only becomes unlawful when it involves what are
called anti-competitive acts. And rather than get into all
of that now, we'll wait until the very end of the case to
describe more fully to you what an anti-competitive act is.
But that is basically what the case is, the claim here in
this case with Novell claims is that it is the -- Microsoft
is liable to Novell for damages under the federal antitrust
laws. And in order to prove its claim, Novell must
establish various things.
And again, I'm going give you a much more complete
instructions about this at the end of the case. This is
just to give you a very, very general guide. That Microsoft
willfully maintained its monopoly in a PC operating system
market by engaging in anti-competitive conduct, including
conduct to thwart development of Novell's WordPerfect and
its other office productivity systems. I think the evidence
will show that as Quattro Pro but basically WordPerfect and
another during the period of time relevant to this case
which again is '94 to '96. And there has got to be and I'll
tell you more about the causal connection, but you can tell
from the language it had to maintain its monopoly by
engaging in anti-competitive conduct. And I'll tell you at
the end of the case what anti-competitive conduct is and
also tell you a little bit more about engaging in the causal
17
nexus but that is got to be there. The other thing is that
Novell realizes it must show that Microsoft's
anti-competitive conduct, if you find any, engaged in during
the period and injured Novell in its business or profit
during the relevant period of time. So that is what the
case is generally all about. I realize that this is a very
general guide at this point, but to give you a general idea
of what the case is about that is what it is about.
And tomorrow you will be hearing opening statement
from counsel about why they think they -- Novell will go
first and they'll tell you why they think they can prove the
case. And Microsoft will make its opening statement about
why it thinks Novell is wrong and why Novell can't meet its
burden of proof.
As I said, I was beginning to threaten the lawyers
that they were so efficient picking the jury that I would
make them give their opening statements today but that would
be unfair to them. We're going break for the day. Just
keep all of these things in mind. Go home and say I did get
selected for this jury, I'm going to be in a long time and I
will talk to you but I'm not going to talk to you about the
case until it is all over and it will be very a interesting
discussion.
Counsel, anything I have forgotten or anything that I
ought to bring up?
18
MR. TULCHIN: No, Your Honor.
MR. JOHNSON: No, Your Honor.
THE COURT: Terrific. Have a wonderful afternoon.
See you at 8:30 in the morning and I am going to stay here
with counsel. Goodbye.
(Whereupon, the jury left the courtroom.)
19
STATE OF UTAH )
)ss
COUNTY OF SALT LAKE )
I, Laura W. Robinson, Certified Shorthand
Reporter, Registered Professional Reporter and Notary Public
within and for the County of Salt Lake, State of Utah, do
hereby certify:
That the foregoing proceedings were taken before
me at the time and place set forth herein and were taken
down by me in shorthand and thereafter transcribed into
typewriting under my direction and supervision;
That the foregoing pages contain a true and
correct transcription of my said shorthand notes so taken.
In witness whereof I have subscribed my name and
affixed my seal this 17th day of October, 2011.
________________________________
Laura W. Robinson, CSR, RPR, CP
and Notary Public
MY COMMISSION EXPIRES:
February 19, 2013
20
|
