Finally, we have the transcript [PDF] of the April 26, 2005 hearing on G2, Forbes, and CNET's failed attempt to intervene. Our thanks go to Chris Brown this time for obtaining it and scanning it for us.
We learn some interesting things and some questions arise. After reading the transcript, I understand why G2 wanted to do this. But my question is: what was Forbes' interest? CNET? I think we get a clue.
My favorite moment is at the very beginning, when Judge Kimball tells the G2/Forbes/CNET attorney, "If it helps, I've read this stuff." That should have been their first clue they were not going to prevail.
Then the attorney asks, "I suppose since we are strangers to the case, it's a fair question to ask why are we here. Why are my clients interested in this case? I don't think it's a secret." At that point Judge Kimball interrupts: "You want in, and you want to see everything." The attorney foolishly in my opinion says, "That's exactly right," and that is when he certainly had to lose. And they did. He says, "There are businesses being made on the perception of this case now on media corporations that are in this country and other ones." That is how he explains their interest, and that may explain why they are there, all right.
On page 4, I notice that when the G2 attorney says that G2 publishes a newsletter called LinuxGram, Judge Kimball says, "That's an interesting name." I worry he may have gotten the wrong impression, thinking that someone from the Linux community was trying to intervene. That is false. It was entirely the anti-Linux forces trying this unsuccessful gambit. It reinforces to me how important it is for the Linux trademark to monitored and policed, so such misunderstandings don't arise. Or maybe, being Judge Kimball, he was totally on top of everything and commenting on the oddity of someone who has attacked Linux consistently using the Linux mark for the name of her newsletter.
The rest of the arguments made by the would-be intervenors are a case study in what lawyers sound like when they don't want to say what they really are after and yet they have to say something. So here, the attorney says that the case is the subject of intense interest by the public and regardless of the court's decision ultimately, if "those communities both in this country and other countries are to accept the Court's decision, they need to understand the bases for the Court's decision."
That's not true, for starters. He then makes a patriotic argument that the US has confidence in openness and we preach it in the world and the judge should prove it now to the world. Hrumph. Those are just pound-the-table arguments, the kind lawyers use when they haven't got the law on their side but a client insists they try anyway.
So, why were they really trying to intervene? Listen to the argument that Mr. Stone makes on why SCO's exhibits to its proposed amended complaint (which was ultimately not allowed) should be unsealed:
I can make some suggestions about what I've heard so far. I know what I know about this case primarily from this valuable amendment of the complaint of the deposition of Mr. Paul [sic] Palmisano. I attended that hearing. I know what I know about the documents referenced in those motions and the bases for those motions are what I heard in the hearing. I would say that it seems to me that there needs to be a compelling reason to seal documents that justify this whole new claim, whether they may or may not justify the whole claim, but it may be relied on SCO's claim. And given what I've heard about the documents, there's nothing on their face that makes them appear that they're properly sealed.
So there you have it, ladies and gentlemen. They were there, as I understand his words, to try to persuade the court to let the world see sealed email that SCO wanted revealed. On page 5, the attorney Mr. Stone says this:
And last October, they attended a hearing in front of Magistrate Wells where SCO produced in its motion to amend that the Court heard last week, reference was made to the email sorting in that motion to amend and in open court. At least one of my clients reported on that. Their characteriztion of what happened was questioned by some of these online communities.
Groklaw has had eyewitnesses at every hearing, including the one in question, and no one has ever reported seeing Maureen O'Gara there. For that matter, I don't recall Forbes ever covering any of the hearings, even from afar, let alone this one. [ Update: Chris Brown writes that he saw a Forbes reporter at one earlier hearing, but not at this hearing the attorney was discussing.] As for CNET, I've never understood what CNET was doing in this picture. Why her lawyer said this to the judge is therefore puzzling to me. Later, he does say something that indicates perhaps an acknowledgement that she wasn't there in person but was relying on someone else's report:
And when my client went to verify its source, the hearing had been sealed on the Court's own motion.
If you are an eyewitness, your source is your notes and your independent memory of what you saw and heard. But this is a lawyer speaking, not a journalist, so I can't be sure what he means. The attorney then suggests that the parties give the intervenors some statement as to why the sealed documents were sealed, or alternatively that he be given the right to look at them all and decide whether to challenge. That was a doomed suggestion, of course, and the intervenors were denied.
So why did they try to intervene? I know. It was their devotion to openness and the country's reputation around the world that motivated them.
Finally, what the judge decided to do was what IBM suggested, that the parties review what was sealed to see if anything could be unsealed. That's it. A tempest in a tea pot. And the materials they went to court to get unsealed? The transcript of that hearing remains under seal.