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PreTrial Preparations in Novell - What's a Daubert Hearing?
Wednesday, July 11 2007 @ 11:45 AM EDT

Novell and SCO have filed a Stipulation Re: Pretrial Schedule [PDF] listing dates for the usual pretrial activities, such as for any motions in limine and for filing proposed jury instructions. Those are what each party hopes the judge will tell the jury, but he doesn't have to. The trial is set for September 17, so those of you who thought it would never happen need to synchronize your watches. You'll see an item on the list of pretrial events that I haven't explained before, a Daubert hearing:
Any Daubert hearing (subject to the Court's agreement to conduct one) shall be held on September 11, 2007.

So I'll explain that now so you will understand what it is and why, if there is one, you'll probably want to be a fly on the wall.

Let's start with concepts: the concept is that you don't want the jury to hear things that they can't handle, that might confuse or prejudice them, or simply things that are not useful to them. Judges have heard it all, and they know the law, so they can hear anything and if it's not relevant, they know it. But juries might not. Usually they don't know the law, and it can sway them unduly if they hear a witness, particularly an expert witness, say something that might be totally untrue but *sounds* or *feels* true, or is just phrased in so much technical gobbledygook that they can't see that it's nonsense.

Both motions in limine and Daubert hearings sort out what the jury will be allowed to hear. They do Daubert hearings in advance, usually, so the jury doesn't have to sit twiddling its thumbs in a soundproof area while it gets sorted out. Motions in limine are motions to exclude evidence, or more precisely to exclude the mention of same without first getting court approval. Here's a definition from my Law Dictionary:

Motion in Limine. A motion used to exclude reference to anticipated evidence claimed to be objectionable until the admissibility of the questionable evidence can be determined either before or duing the trial by presenting to the court, out of the presence of the jury, offers and objections to the evidence.... The motion seeks to avoid injection into trial of irrelevant, inadmissible, or prejudicial evidence at any point, including the voir dire examination, opening statements, and direct and cross examination, and therefore prevents mistrials based on evidentiary irregularities.

Here's one to give you an idea. Daubert is about experts, not just about whether certain testimony will be allowed but even if a certain expert really is one. The judge acts as a gatekeeper as to what the jury will hear, and the two main issues he will look for are reliability and relevance. There is, believe it or not, an entire website devoted to Daubert, which an attorney maintains, and it tells you everything you ever could want to know about it. Daubert v. Merrell Dow Pharmaceuticals was a famous case that established in 1993 the factors a judge should consider when analyzing what to toss out and what the jury can listen to. Junk science is out. That's what the judge is looking to exclude.

Here's a simple explanation in the context of criminal law, which is where you often have Daubert hearings about things like whether to allow the jury to hear testimony about fingerprints found on a murder weapon:

What is a Daubert hearing? It is, in effect, a mini-trial within a trial, conducted before the judge only, not the jury, over the validity and admissibility of expert opinion testimony.

As you know, Novell has already challenged some of SCO's experts and has filed two Evidentiary Objections, and I certainly expect IBM will be doing something like that as well, when their turn comes. You'll recall that the Magistrate Judge Brooke Wells already stated back in January, in the context of SCO's Motion for Protective Order Regarding Dr. Jeffrey Leitzinger's Personal Financial Information, that IBM still had the option of a motion in limine. And in March at the last summary judgments hearing, SCO suggested to the court that if IBM objected to Dr. Cargill as an expert, it should bring on a motion in limine or ask for a Daubert hearing, to which IBM promptly agreed, without acknowledging it couldn't also ask for summary judgment.

The judge doesn't analyze the conclusions so much as the methodology, the way the expert arrived at the conclusions, as well as whether he actually is qualified as an expert. Also, he looks at how the testimony or evidence is going to be used. Is it relevant? Here's an article from Litigation Magazine in which the authors set up the explanation as if a conversation between two opposing lawyers and a journalist. It's from 1998, but it's very, very helpful for grasping how each side tries to spin and weave through the Daubert hearing and what matters in such a hearing in real life.

No explanation of anything in the SCO saga would be complete without explaining how a particular procedure can be abused, so here you go, all about how Daubert hearings can be used for things like delay. Who'd ever do that? Daubert, the article points out, is built on the Federal Rules of Evidence, particularly on Rule 702, which reads like this:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

The article mentions an unusual way to use Daubert I'd never heard of before:

A highly unusual twist in the Daubert question has occurred with one of us ... when an attorney hired several experts, but one of them did not present a favorable opinion after review. The attorney presented that expert's opinion to the other side in a distorted way that invited a Daubert challenge, which was feebly and ineffectively resisted by that attorney. The attorney then used the successful challenge to rationalize not paying the expert for work already done, based on the alleged failure of the opinion to meet the standard.

I don't recommend that, but it's an example of how lawyers can get very creative with what looks to a layperson like dry words on a dusty book's page.

The clearest example of whether the testimony will fit the case and be useful to a jury is in the Daubert opinion of the court itself, written by Supreme Court Justice Blackmun, when he talked about testimony about the phases of the moon and how such testimony might or might not fit depending on what it was being offered to prove:

Rule 702 further requires that the evidence or testimony "assist the trier of fact to understand the evidence or to determine a fact in issue." This condition goes primarily to relevance. "Expert testimony which does not relate to any issue in the case is not relevant and, ergo, non helpful."... ("An additional consideration under Rule 702--and another aspect of relevancy--is whether expert testimony proffered in the case is sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute"). The consideration has been aptly described by Judge Becker as one of "fit."... "Fit" is not always obvious, and scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes....The study of the phases of the moon, for example, may provide valid scientific "knowledge" about whether a certain night was dark, and if darkness is a fact in issue, the knowledge will assist the trier of fact. However (absent creditable grounds supporting such a link), evidence that the moon was full on a certain night will not assist the trier of fact in determining whether an individual was unusually likely to have behaved irrationally on that night. Rule 702's "helpfulness" standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility. ...

Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, pursuant to Rule 104(a), [n.10] whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. [n.11] This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue....

Yet there are important differences between the quest for truth in the courtroom and the quest for truth in the laboratory. Scientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly. The scientific project is advanced by broad and wide ranging consideration of a multitude of hypotheses, for those that are incorrect will eventually be shown to be so, and that in itself is an advance. Conjectures that are probably wrong are of little use, however, in the project of reaching a quick, final, and binding legal judgment--often of great consequence--about a particular set of events in the past. We recognize that in practice, a gatekeeping role for the judge, no matter how flexible, inevitably on occasion will prevent the jury from learning of authentic insights and innovations. That, nevertheless, is the balance that is struck by Rules of Evidence designed not for the exhaustive search for cosmic understanding but for the particularized resolution of legal disputes. [n.13]

To summarize: "general acceptance" is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence, but the Rules of Evidence--especially Rule 702--do assign to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands.

I thought you'd enjoy seeing the part about the difference between the lab and the courtroom, even though it's not directly related to the point I was making. What if the judge needs help figuring it all out? He can, if he wishes, appoint an expert to advise him on the experts. That's Rule 706, and the ones in between are about things like how much an expert can opine and disclosure requirements as to methods used to arrive at an opinion. As you know, each Circuit normally follows its own cases, and so here are some from the 10th Circuit, the circuit Novell and SCO's dispute is being heard in. One of the cases involved Novell:

Lantec, Inc. v. Novell, Inc., 306 F.3d 1003 (10th Cir. 2002). Novell abandons software project with Lantec when Novell merges with WordPerfect. Lantec brings antitrust claim, alleging Novell and WordPerfect have conspired to monopolize worldwide market in relevant software. To establish existence of relevant market, Lantec offers trial testimony from economist, Dr. John C. Beyer. District court excludes testimony and awards judgment as matter of law to Novell. Exclusion affirmed. District court properly concluded that Dr. Beyer: (1) used unreliable data; (2) did not understand computers or computer markets; (3) invoked no consumer surveys to support his conclusions, despite testifying that relevant market was determined by consumer purchasing patterns; (4) did not calculate cross-elasticity of demand to identify substitute products; (5) changed his testimony from his earlier report; and (6) did not address changes in computer market. Particularly troubling is Dr. Beyer's attempt to spin handful of informal conversations with consultants from limited geographic area into rigorous evidence of worldwide product market.

As you see, Novell prevailed, in part because the other side's expert didn't understand computers or computer markets. It sounds funny now, and it's certainly ironic, to think of anyone being sued for antitrust over WordPerfect. But anyone can sue over pretty much anything they want to in the US. It's *winning* that's hard.

The website all about Daubert also has a chapter on The Basics, and he does a great job of explaining the difference between ordinary witnesses and expert witnesses' testimony and why courts are so interested in acting as a gatekeeper:

From even this short list, it should be obvious that expert testimony is a potentially dangerous weapon. As we have seen, the law regulates jury verdicts in two ways: before the fact, by the exercise of judicial discretion in policing the evidence that juries may hear, and after the fact, by limiting as a matter of law the scope of the jury's permissible inferences from whatever evidence is admitted. The second method will frequently be much less efficacious with expert testimony, because the subject matter of expert opinion is often parlously close to the ultimate issue of fact to be decided by the jury, so that there is very little by way of jury "inference" to regulate. Together, the hearsay rule and the personal knowledge requirement tend to keep lay testimony (even lay opinion testimony) safely distant from many of the ultimate issues on which juries pronounce, permitting regulation of jury verdicts by reference to any inferential gaps between testimony and factual finding. The relaxation of these two requirements awards more inferential freedom to experts, and so their testimony can often reach closer to the heart of the questions that the jury must answer -- especially where they offer an expert opinion. There is also the fear that juries will suspend their critical faculties because overawed by experts' credentials. For both reasons, the law of evidence pays particular attention to decisions about whether expert testimony will be presented to the jury in the first place.

The next chapter, Daubert in a Nutshell sums up the history of Daubert and finishes the explanation of how it all plays out. I think you can see how experts need to be scrutinized carefully in a software case, since one has to assume the jury won't have advanced technical knowledge. Here's an article by Dr. James L. Wayman, Director U.S. National Biometric Test Center, College of Engineering, San Jose State University, in which he explains how experts can befuddle a jury:

In my opinion, if a significant portion of one of your fingerprints is found at a crime scene, you had better be able to; 1) explain its presence; or 2) prove you were already in jail at the time the crime was committed. But I’m a scientist, not a fingerprint examiner, so I’m not paid for my opinions on these matters. Rather, I’m paid to apply the tools of science to test hypotheses such as, “No two individuals have any fingerprints, or portions of any fingerprints, in common”. Proving or disproving this is really hard, because we scientists don’t have access to all fingerprints from all the world’s people. Consequently, we may have to use “statistical estimation”. By using the word “statistical estimation”, instead of the more realistic word, “mathematically-based guessing”, we’re hoping that most people will treat us with authority, like people used to treat physicians who actually made house calls, and not dispute these guesses. Certainly, statistical theory, when carefully and scientifically applied, can illuminate great areas of knowledge. But the forms and terminology can easily be misapplied to disguise crazy guesses and opinions. If you are a judge or serving on a jury, and I am an expert witness, I might be able to disguise my guesses with enough bogus “statistical estimation” techno-speak that you won’t question them at all, even if they’re absurd.

That says it plainly enough. So the judge is hoping to weed out "crazy guesses and opinions" labeled as facts. Here's a page of Daubert resources, if you want to dig some more. Finally, here's a chapter [PDF] from the Manual for Complex Litigation [PDF], part of which deals with scientific evidence. If you notice something really interesting that you think I should add to this article, let me know, please.


Michael A. Jacobs, pro hac vice
Kenneth W. Brakebill, pro hac vice

Thomas R. Karrenberg, #3726
John P. Mullen, #4097
Heather M. Sneddon, #9520

Attorneys for Defendand & Counterclaim-Plaintiff Novell, Inc.


THE SCO GROUP, INC., a Delaware

Plaintiff and Counterc1aim-


NOVELL, INC., a Delaware corporation,
Defendant and Counterclaim-

Case No. 2:04CV00139

Judge Dale A. Kimball

Defendant and Counterclaim-Plaintiff Novell, Inc. ("Novell"), by and through its counsel, and Plaintiff and Counterclaim-Defendant The SCO Group, Inc. ("SCO"), by and through its counsel, hereby stipulate as follows:


The parties agree to the following pretrial schedule:

(a) The parties shall file and serve their respective Rule 26(a)(3) Pretrial Disclosures by August 2, 2007.

(b) A Final Pretrial Order shall be entered by August 9, 2007.

(c) The parties shall file and serve any Proposed Jury Instructions by August 16, 2007.

(d) The Special Attorney Conference and Settlement Conference shall be held on August 21, 2007.

(e) The parties shall file and serve any motions in limine by August 22, 2007.

(f) Any oppositions to motions in limine shall be filed and served by August 29, 2007.

(g) Any Daubert hearing (subject to the Court's agreement to conduct one) shall be held on September 11, 2007.

(h) A Final Pretrial Conference shall be held on September 11, 2007.

(i) The trial of this action shall commence on September 17, 2007.

DATED: July 10, 2007


/s/ Heather M. Sneddon
Thomas R. Karrenberg
John P. Mullen
Heather M. Sneddon
Attorneys for Novell, Inc.

2 (2)

DATED: July 10, 2007


/s/ Mark F. James
(Signed by filing attorney with permission
from Mark F. James)

Brent O. Hatch
Mark F. James
Attorneys for The SCO Group, Inc.

3 (3)


I HEREBY CERTIFY that on this 10th day of July, 2007, I caused a true and correct copy of the foregoing STIPULATION RE PRETRIAL SCHEDULE to be served to the following:


Brent O. Hatch
Mark F. James

Stuart H. Singer
William T. Dzurilla
Sashi Bach Boruchow

David Boies
Edward J. Normand

Devan V. Padmanabhan
John J. Brogan

Via U.S. Mail, postage prepaid:

Stephen Neal Zack

/s/ Heather M. Sneddon

4 (4)

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