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First Word from Utah in SCO v. Novell: Trial Set for March - Updated 6Xs
Tuesday, December 01 2009 @ 04:59 PM EST

I just received our first word on the hearing in Utah on SCO v. Novell from one of our reporters. "looking for a march 8th trial date, to run 3 weeks" is the report. I'm sure there will be more info on the way as soon as they can type it up. We had several eyewitnesses in attendance. So stay tuned for updates.

Update 1: We have the hearing minutes. And a more lengthy report. This was a scheduling hearing. There will be a hearing on Novell's wish to consolidate or assign to the same judge later.

Here they are:

12/01/2009 - 605 - Minute Entry for proceedings held before Judge Ted Stewart: Scheduling Conference held on 12/1/2009. The Court sets a Final Pretrial Conference for 2/25/2010 02:00 PM and a 3-week Jury Trial for 3/8/2010 08:30 AM in Room 142 before Judge Ted Stewart. Counsel will meet to determine other dates and deadlines, and Mr. Hatch will submit an order for the Court's signature reflecting those dates. Attorney for Plaintiff: Brent Hatch, Edward Normand, Mauricio Gonzalez, Attorney for Defendant Michael Jacobs, Thomas Karrenberg. Appearing by phone: Judge Edward Cahn, Trusee; and Bonnie Fatelle Court Reporter: Kerry Sorensen. (slm) (Entered: 12/01/2009)

I am editing to correct what I wrote because we have a more lengthy report from a second volunteer now. This was merely a status hearing, not the hearing on Novell's Notice. And what happened is they discussed timing and when to set the trial, but the issue of consolidation or reassignment did not come up today. Judge Stewart did indicate he'd like an official motion, not just a notice.

2nd Report:

I just returned from the SCO v Novell Status Conference before Judge Ted Stewart.

The courtroom appeared much newer than Judge Kimball's is, having much lower ceilings and "modern" architecture. There were LCD monitors and microphones on all tables and six monitors built into the jury's furniture. There were two types of video cameras, the "normal" ones that were in Judge Kimball's but additional cameras that appeared to be for broadcast use.

Appearing for Novell were Michael Jacobs and Thomas Karrenberg. For SCO were Edward Normand, Brent Hatch, Mauricio Gonzales, and accompanied by Ryan Tibbetts. Just before before Judge Stewart came in the clerk put Trustee Judge Edward Cahn and Bonnie Fatell on speakerphone.

Before the judge entered the clerk discussed scheduling with the attorneys, first asking them how many week trial they're expecting. Brent Hatch said two weeks and Michael Jacobs said three. She said she could schedule a three week trial starting June 14th. Ted Normand asked if that was the earliest possible date, which it was for a three week trial. Though a two week trial could be scheduled Feb 14th. Both Michael Jacobs and Thomas Karrenberg had conflicts for that time frame along with concerns about some motions they expect to bring prior to trial. There was some discussion of "tightening it up" to do perhaps 2 1/2 week which the clerk could schedule for March 8th giving them two and a half weeks but that the following Thursday and Friday were reserved for final motions in a trial starting the following week. Michael Jacobs was still concerned about this date as he didn't think there would be time for the motions before trial.

The clerk said that she would give the Judge both the March 8th and June 14th dates and they can discuss it.

The clerk then got Trustee Judge Edward Cahn and Bonnie Fatell on the speakerphone and Judge Ted Stewart entered.

The Judge asked about the two dates and the time estimate. Mr. Hatch said that SCO would like to go to trial as soon as possible for two weeks. He had stood to speak, but Judge Cahn said he was having trouble hearing his response. Judge Stewart asked Mr. Hatch to be seated and use the microphone at his table. The mic and courtroom speakers made understanding the parties far easier than it was in Judge Kimball's courtroom. Mr. Hatch repeated what he'd said. Judge Stewart then addressed Mr. Jacobs saying he understands Novell would like to wait longer and asked Mr. Jacobs to explain why.

Mr. Jacobs said there were Summary Judgement motions that were mooted when Judge Kimball ruled which Novell would like to heard, including their motion on no special damages. Judge Stewart asked if they were fully briefed before Judge Kimball, which Mr. Jacobs said they were.

Judge Stewart said he prefers the earlier date. He set the trial to start March 8th saying this is an "old case." He said he understands their are motions to consolidate the cases and that before Judge Kimball the parties filed "notices." He said in his court he can only act based on motions and told the parties to only file motions, not notices. He then held the court in recess. The court was only in session for about 5 minutes.

After the judge left, the clerk and the parties continued to discuss scheduling. They set Feb 25th at 2pm for the final pre-trial conference. Michael Jacobs said that right after the new year they will file a summary judgment motion regarding no malice pertaining to the slander of title claim. There was some preliminary discussion of dates and time frames for motions but nothing really decided. A court clerk when asked said that on motions that have already been fully briefed, and argued, before Judge Kimball, a new judge would likely want another hearing for argument. It was decided the attorneys would discuss between each other the various dates they will require and call the court back for scheduling.

There was some discussion about the Thursday and Friday during the third week of trial. The clerk went and discussed dates and scheduling with Judge Stewart in his chambers. When she returned she said she was scheduling for a full three week trial including that Thursday and Friday, during which that other case's hearings (if any) would be scheduled for the afternoon. When asked, the clerk said that the court's trial schedule for those three weeks will be 8:30am to 1:30pm. This seemed to be met with pleasure by the attorneys.

All the discussions and the court session itself took less than half an hour, everyone leaving by 1:55pm.

What does it mean? It doesn't mean the trial will really start in March. Remember the trial date in SCO v. IBM getting reset and reset? Motions are before the court, which Judge Kimball's ruling made moot, but Novell wishes them to be heard now. So a lot could happen next. One thing that will happen next, one of our reporters found out from talking with the lawyers, is that Novell will be filing its petition with the Supreme Court, hoping the court will hear its appeal, in January. It's a long shot, of course, but they are going to follow through.

Update 2: And here's another report from a third attendee:

In attendance were Brent Hatch, Edward Normand, Mauricio Gonzalez, and there was one other name I didn't catch for SCO, Michael Jacobs and Thomas Karrenberg for Novel.

Initially they were discussing possible trial dates with Sandy, Judge Stewart's court clerk. Talking about a possible June 14th trial date, that seemed to appeal to Novell more than SCO.

Some notes to the best of my recollection on that part: Jacobs: (responding to how much time they would need) It is the plaintiff's case. We could go 2 1/2 weeks.

Hatch (I may be wrong here, I believe he did most of the talking I didn't get his name until after this part): We could go as little as 2 weeks. What if it were 2 weeks? Does that change the calculus? We would like to go earlier if possible. That's why we are checking that.

Sandy: Yeah, actually, March...what does March 8th look like?

Some back and forth there, including a joke from Hatch I believe about the trial possibly running "rough-shod over my father's birthday". [PJ: Note he is referring to Senator Orrin Hatch.]

Jacobs: I think we would like some more time to get some motions filed before trial.

At that point Sandy got Judge Cahn (using their phrasing) on the phone and then Judge Stewart entered the courtroom.

Hatch started to give their preliminary estimate of time needed, but Judge Cahn couldn't hear on the phone so he started over.

Hatch: "So Judge Cahn can hear me, we were looking for 2 1/2 weeks, we would prefer this matter to go as fast as possible."

Jacobs then said that they would like to have more time to file some motions. He mentioned motions that were mooted by Judge Kimball's ruling that may have been resurrected (my wording) by the remanding. Specifically the motion on "No special damages" and summary judgment.

Judge Stewart wanted to know if the motions were fully briefed before Judge Kimball. I didn't get all of it but I believe he pointed out a few that were.

Judge Stewart: "I prefer the earlier date. This is an old case with a tortuous history." Then Judge Stewart went on to address the possibility of consolidation of Novell and IBM.

Judge Stewart: "This court can only respond to motions, not notices." And implied (don't remember the wording) that he would expect it to be consolidated under him and not Judge Campbell. He also instructed the attorneys to get together after the conference and hash out the schedule for any pre-trial motions and that Brent Hatch was to file it.

Judge Stewart then left and both sides went back to figuring out dates with Sandy.

Jacobs commented to the attorneys for SCO that they are thinking of filing a motion for a judgment of No malice on the slander of title claim. There was also some joking about being able to file motions the day before Christmas, and they asked about the first available court date after the New Year, presumably to argue or respond to any motions filed at the end of the year.

The court dates I have are:

January 4th, not yet specified but it is the first court date after the New Year.

February 11, to reargue the "No special damages" motion before Judge Stewart (or whomever it turns out to be), the court clerk. And someone else there (court employee) suggested that Judge Stewart would rather hear it reargued than be presented with the transcript from the first time it was argued.

February 25th at 2:00pm, the final pretrial hearing.

March 8-26th 8:30am-1:30pm for the actual trial.

I wish I remembered shorthand from high school I feel like I missed a lot.

Well, we thank you very much for the details you did catch. It explains, for one thing, the hearing minutes about Hatch writing up and filing the scheduling order for the judge to sign.

Update 3: And now our first reporter sends us his longer account:

The conference actually started early. We were talking in the hall; decided to go in 5 minutes early and found the scheduling discussion in progress. The attorneys had only entered about 3 minutes before us, so we didn't miss much.

The initial portion of the conference was scheduling issues with the clerk, Sandy Malley.

The calendar listed 3 attorneys for plaintiff - Hatch, Normand, and Singer. There were 4 in attendance, and we all caught the names of the 3 listed in the hearing minutes, but not the other one. I think Singer was the other, but won't know for sure until I can find a picture. Listed on the docket for defendant were Acker, Brakebill, Goldstein, Jacobs, Karrenberg, Lundberg, Melaugh, Pernick, and Sneddon. Only Jacobs and Karrenberg were there for Novell.

Hatch did all the talking on SCO's side; Jacobs for Novell.

Novell wanted a trial date in June. SCO wanted a date "as soon as possible". Novell wanted a trial lasting 3 weeks, SCO wanted 2.

The openings on the court's schedule were for March 8th, and June 14th. The earlier date was only a 2-week opening; at the end of the conference Ms. Malley made some phone calls and wedged in the extra week. (Jacobs: "You're going to have to tell me who you called so I'll know who's going to be mad at me.")

Finally, when they had discussed schedules as far as they could, the courtroom deputy called Bonnie Fatell on the phone, who then patched in Mr. Cahn. After he came on the line, Ms. Malley went to get Judge Stewart.

Judge Stewart quickly let everyone know he was very much in favor of having the trial as soon as possible.

(Judge Stewart: "This is an old case, with a long, and frankly, tortured, history.") He wanted to know why Novell wanted so much time. Jacobs said that they would need some time for motion practice, there being some matters which had been mooted by Judge Kimball's ruling, but since the appeal are now going to be before the court again.

Judge Stewart also expressed concern "that both sides had spent so much time arguing the matter of consolidation." And he rather pointedly noted that he couldn't rule on a notice, only on a motion; so if Novell really wants a ruling on consolidating their case with SCO v. IBM, they needed to file a motion to that effect.

Anyway, prior to the trial on March 8th there will be number of hearings, SCO to confer with Novell about subjects and dates. SCO (Hatch) is then to submit the proposed order tomorrow.

In addition to the three Grokreporters, there were 6 others in the gallery. I think one was Darl (dressed in a striped t-shirt and jeans) and a couple of younger (20's?) men (long-sleeve t-shirts and jeans) with him. Also a young couple; the young man had to observe a civil case for a college, I think, class. One other observer had been to enough sessions that he was recognized by attorneys on both sides.

I noticed that Mr. Cahn was called "Judge Cahn" by everyone - Judge Stewart, the courtroom deputy, lawyers on both sides. The only person who didn't call him "Judge" was Ms. Fatell.

The attorneys who spoke seemed very congenial toward each other. Mr. Gonzales and the Unnamed One (I'll go looking shortly) didn't have anything at all to say.

Richard noted that Judge Stewart seemed to agree quickly with everything that Mr. Hatch said. I didn't really notice that so much; but thinking it over, the only time Judge Stewart sent anything edged toward Hatch was on things that were obvious ( a "you-too" kind of thing about filing motions rather than notices if a ruling was desired).

Interesting, no? I had two reporters now privately tell me that Judge Stewart seemed grumpy toward Novell and more friendly to SCO. Hmm. I'll reserve judgment until I get to read the transcript, which is on order, and when I share it with you, we may get more of a reading, but to tell you the truth, I do listen when two separate reports tell me the same thing.

And it is true that as it stands, this will be the third judge Novell will have to plead its case before who was either appointed to his position by Orrin Hatch or connected to him in some clear way. Judge Kimball was appointed by Orrin Hatch, Judge Stewart used to work for him, although his official bio leaves that detail out, I notice (more on Stewart here in this PDF), and Judge McConnell, who wrote the appellate decision, was also strongly supported by Orrin Hatch for his position as judge to what was a Utah vacancy, as you can see by his statement when he introduced his nomination at the confirmation hearing in 2002.

Just saying. And yes, it's beginning to feel just a tad creepy.

Incidentally, at one hearing about Stewart, Sen. Leahy commented on recusals, as you can see in this transcript, and noted that Stewart promised to "liberally interpret" the recusal standards to avoid giving the wrong impression in matters where opponents worried he'd have a bias due to his background:

MR. LEAHY: AND LASTLY, WE'LL HAVE BRIAN THEADORE STEWART, WHO HAS NOT HAD TO WAIT A LONG TIME WITH THE OTHERS. AND DESPITE STRONG OPPOSITION FROM MANY QUARTERS FROM UTAH AND AROUND THE COUNTRY FROM ENVIRONMENTALISTS AND CIVIL RIGHTS ADVOCATES ALIKE, I DO NOT OPPOSE AND DID NOT OPPOSE HIS NOMINATION IN COMMITTEE. I NOTED MR. STEWART'S COMMITMENT TO EXAMINE HIS ROLE IN A NUMBER OF ENVIRONMENTAL MATTERS WHILE IN THE STATE GOVERNMENT AND TO RECUSE HIMSELF FROM HEARING CASES IN THOSE AREAS. IN RESPONSE TO QUESTIONS FROM CHAIRMAN HATCH AND SENATOR FEINGOLD, MR. STEWART COMMITTED TO -- QUOTE -- "LIBERALLY INTERPRET" THE RECUSAL STANDARDS. SO THAT PEOPLE WOULDN'T QUESTION THAT HE WOULD -- THAT THESE CASES WOULD BE HEARD FAIRLY.
This is an unofficial transcript, but I believe you'll find it in the Congressional Record, specifically as a starting point here in the Congressional Record Index.

That would seem to hint that he would honor his solemn promise both in the specific and in the broader principle, should any such request be made, assuming he saw it as a valid request. Novell has made no such request to date. I'm just sharing all the interesting tidbits I find. And his grumpiness could be just that there have been battles over him not wishing to recuse himself in other cases, and that can't have been pleasant. And here is a party asking him, in effect, to send this case along to another judge, not by recusal, but for other reasons, but the result is similar.

We know what the Supreme Court recently ruled is the standard for recusal for state judges, but what about federal judges? If you are curious, here it is, from a decision denying a recusal motion involving other judges in Utah:

Title 28 U.S.C. § 455(a) provides that a federal judge must recuse himself “in any proceeding in which his impartiality might be reasonably questioned.” In applying this standard, the Tenth Circuit looks to determine “whether a reasonable person, knowing all the relevant facts, would harbor doubts about the judge’s impartiality.” United States v. Burger, 964 F.2d 1065, 1070 (10th Cir. 1992). “The inquiry is limited to outward manifestations and reasonable inferences drawn therefrom.” United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993).
The operative word is "reasonable". Here's where you'll find Title 28 U.S.C. § 455, if you would like to read it for yourself.

Update 4: We have our fourth eyewitness report now:

I don't have much to add to the other reports, except for a few specific points:

  • Jacobs explained that Novell's wish for more time concerned the motion practice. Novell intends to push the motions that were mooted by Judge Kimball's decisions, but became un-mooted as a result of the appeal. In particular, he mentioned the special-damages issue. He particularly stated that he didn't want the Judge to have to rush through the motion paperwork to reach his decisions.

  • Novell intends to file a motion (or something) concerning absence of malice in the original (slander of title) claim. This may have been the subject of some repartee between Jacobs and Hatch concerning a 12/24 filing date for it.

  • You now have a third reporter telling you that Judge Stewart seemed much better disposed towards Hatch than towards Jacobs, me.

  • Hatch--and maybe some of the others--are involved in a case before Judge Stewart, that they referred to as the Adams case. This is set for six weeks, between the March and June dates that they had discussed.
That is our last report, so I know you join me in thanking all the volunteers for taking time out to bring us the same-day scoop.

Update 5: I've told you that the lawyers usually do get along fine, in between jousting in the court room. It's usually a cordial atmosphere, with considerable politeness shown. And everyone tells me that today's atmosphere was very light and good-humored, with teasing and jokes among most of the lawyers, and everyone laughing and kidding around. Another reporter says this, about the Adams case:

Brent Hatch and Michael Jacobs were both involved, it seems, at one time in the "Adams case." They had mentioned their firms were in the case when chatting before the bench trial too. However both of them, when chatting with the clerk about scheduling said they'd "gotten themselves out of it" which prompted the impressed clerk to call them "her heroes." Every time it's come up in the past and today, it has seemed like a case none of them wanted to be involved in. I have no idea what it's about or its proper name. But scheduled for a six-week trial, it must be something complicated.
Remember, this is all just lawyers joking around, not to be taken literally. But it will give you a flavor of the day. We think the case, by the way, is probably Phillip M. Adams & Associates, L.L.C. v. Dell, Inc., et al., a patent infringement case. You can read about it here. It's an enjoyable read. It should be captioned Adams v. Everybody, because it started by suing Lenovo and Gateway and Asus and NEC and IBM and Fujitsu and Sony and others. But as some got out of the case, the name changed. So that's what they'd mean in this context, that they successfully got their client out of the case. Morrison & Foerster represented Fujitsu, now out of the case as of November 13, and Hatch's firm represents MSI, still in there battling, unless there is something very recent, which is possible. I think, then, that what was overheard on that point might be inaccurate. Time will tell. Another eyewitness says this is what he overheard:
Ms. Malley, the clerk, (to Hatch): "You're on the Adams case too?"
Mr. Hatch: "Yes"
Ms. Malley: "Looks like we're going to get to be *great* friends!"
Mr. Hatch: "I... uh... think I'm going to... uh... reserve comment." (I couldn't see his face, but he lowered his head, and I had the distinct impression that his face was going red.)

(Laughter from both sets of attorneys)

There have been so many lawyers in this Adams case. If someone challenged me to name every famous law firm I could think of, my list would be about the same as the list of law firms that are or were involved in this litigation.

The case started as Adams v. Lenovo et al., but Lenovo got out too. You can read more about it here. The magistrate judge David Nuffer famously said at a hearing, "Computer gobblydegook is not confusing or prejudicial", as described in this article:

ASUS had another objection to admissibility of ESI that was original, but lame. They claimed the evidence was confusing because it included some computer code, hexadecimal and even zeros and ones, along with readable text. They actually argued that this would be so confusing to a jury that it would prejudice them. They wanted to keep this evidence from the jury, even though the readable text was obviously relevant. Judge Nuffer rejected this by saying at *10 ”Computer gobblydegook is not confusing or prejudicial.” You have got to admire a judge who says computer gobblydegook, a phrase I have not heard in many years. I guess the defendants picked the wrong judge for a dazed and confused by computers argument. I wonder if that argument has actually worked for them before with someone else?
That article says Judge Nuffer is a computer nerd. It's certainly nice to know there are some. And may they multiply!

By March, in a perfect world.

: D

Update 6: Here is a bit more detail on some of the objections raised against Stewart's appointment, as well as an indication of how hard Orrin Hatch fought for it, from an ABA article:

However, in this Congress, Senator Hatch has not scheduled even a single hearing on judicial nominations. What has caused this failure? It appears that it revolves around the pending nomination of Ted Stewart, Chief of Staff to the Governor of Utah and a conservative, to the federal district court.

Although Stewart’s name is currently only in the pre-nomination process in Utah, he is under attack from environmental groups who criticize his strong support of mining and development interests. These groups have expressed their strong concerns to the White House. They are openly critical not only of the president’s lack of persistence in pursuing the confirmation of other, more liberal appointees but also of his willingness to make deals with the Republicans—appointing a conservative judge as quid pro quo for the confirmation of a liberal one. While the environmentalists are bombarding the White House, they are also filling the airways and newspapers in Utah with strong criticism of Stewart. However, Senator Hatch remains deeply committed to Stewart’s appointment and has said that "things can get rough around here" if the president does not pick Stewart.


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