Novell's Sterling A. Brennan of Workman Nydegger has sent a letter to Judge Stewart, asking for the opportunity to brief the issue of their Request for Judicial Notice. This letter was sent after yesterday's conference was over, and the judge has already granted the request.
I know. I am too exhausted to think, after yesterday, but, to paraphrase F. Scott Fitzgerald, lawyers are different from you and me.
I will explain it, though, as best I can, trouper that I am.
Here's Novell letter:
And here's the judge's order:
02/26/2010 - 734 - DOCUMENTS LODGED consisting of Letter from Sterling A. Brennan. (asp) (Entered: 02/26/2010)
Filed: 02/25/2010 I have the text of the letter, below, and you'll
note that the Novell lawyers talked to SCO's lawyers about briefing the issue, but the SCO side "declined to agree." At first, the letter confused me, probably because I wasn't there for the discussion of whatever it was SCO wouldn't agree to, so I contacted our reporters to try to understand better what all this is about. And here's what we think happened.
Docket Text: ORDER Setting Briefing Schedule: Novell may file a brief in support of the Request by 5:00 p.m. on Tuesday, March 2, 2010 and Plaintiff and counterclaim defendant The SCO Group may file a brief in response to Novell's brief by 5:00 p.m. on Thursday, March 4, 2010. Signed by Judge Ted Stewart on 02/25/2010. (asp)
First, remember what the minutes from the hearing told us about the various motions? The hearing was divided into two parts, first the arguments on the Daubert motions about SCO's experts, and then the section on the request for judicial notice, asking that the jury hear about Judge Dale Kimball's prior orders, and jury selection, trial procedures and all that. I've marked for you the parts we want to zero in on now:
02/25/2010 - 733 - Minute Entry for proceedings held before Judge Ted Stewart: Final Pretrial Conference held on 2/25/2010. Defendant asks for judicial notice regarding Judge Kimball's and the 10th Circuit's prior findings on this case. The Court asks counsel to avoid reference to these findings without prior notice to the Court. The parties report that they do not agree on specifically what should be decided by the Court, and what should go to the jury. The Court asks counsel to submit their understanding of the issues referred to in the pretrial order by Tuesday, March 2; with responses due by Thursday, March 4. The Court outlines its preferred trial procedures and deadlines. Counsel are asked to review the section of "Courtroom Conduct" in the Court's trial order. Counsel raise 1st amendment issues, and they are instructed to submit any motions regarding this issue by Tuesday, March 2, with responses due Thursday, March 4. Attorney for Plaintiff: Brent Hatch, Stuart Singer, Edward Normand, Jason Cyrulnik, Attorney for Defendant Sterling Brennan, Eric Acker, Michael Jacobs. Court Reporter: Patti Walker. (slm) (Entered: 02/25/2010) You see that there are three issues listed, and the Novell letter mentions them, "(1) Novell's request for judicial notice, (2) issues to be decided by the Court and the jury, and (3) First Amendment privilege issues." Regarding the first item,
after talking to Chris Brown, Chris
says that Novell wanted the jury to be instructed on the items in its Request for Judicial Notice, about Judge Kimball's prior decisions on matters not appealed, but at the hearing SCO opposed that happening. It believes even mentioning them to the jury would be prejudicial. I gather the judge wants to control what they hear about that, but the door isn't yet entirely slammed. So Novell would like to brief it fully, so he can decide based on more than just whatever was said yesterday.
What is SCO's issue? There may have been some disagreement about whether the parties would brief this matter at all, judging from the wording of the letter, or perhaps by when.
Or maybe they disagree about what the judge's words yesterday mean. I can imagine, just as a hypothetical, a hearing where the two sides after the conference got together and one side thought the judge said to do X and the other thought he meant Y. Hence a letter, establishing X. We've seen that with SCO before, have we not? Remember them telling the magistrate what her own order meant in SCO v. IBM? That was so funny. But SCOfolk give up nothing. They fight every battle to the bitter end, way past what seems like a good time to stop, to me. I can't say that it doesn't work sometimes, though, so perhaps that is the why of it.
The letter is clear to all of them, by the way, I'm sure, but not to me, because I wasn't there and couldn't hear all the arguments. It will be clear once we obtain the transcript down the road.
The judge, in any case, has now granted Novell's request to brief the matter of whether the items in their Request for Judicial Notice should be mentioned to the jury in the jury instructions, and on the dates the briefs are due, and the judge, after hearing from both sides, will decide. But I also can't help but note that he also is learning. Might the SCO side's refusal to agree to something like this tell him something about how Boies Schiller rolls?
Letters after a hearing are not that rare. We saw SCO send a letter to the judge in the bankruptcy court, after one crucial hearing.
Things sometimes happen at conferences and something gets decided before it should have been under normal circumstances or in an odd way, and the side that got the edge would like to keep it. Sometimes you forgot to mention something you meant to. It all happens so fast at hearings that sometimes it isn't until you get home that you realize it. And sometimes a lawyer might discern at a hearing that a judge is leaning a certain way on something taken under advisement, and the lawyer is worried that he's going to make a decision his side won't like and rather than just sit back and later appeal, he writes a letter to help him get a more complete picture first. That's happening in the Novell v. Microsoft antitrust litigation right now, but I've been too busy to tell you about that yet. It's perfectly appropriate and not unusual under such circumstances to ask to present a more complete picture. I mean, the whole point of a trial is to get it right.
I don't know what happened here yet for sure, but that is my best guess, and we do know what happens next: briefing. Yay! More filings!
Wasn't yesterday's hearing exciting, by the way? I'm really happy that we are going to get to cover a real jury trial, so that our coverage of the SCO litigation will end up including pretty much every aspect of civil litigation. What a way to learn how the legal system works.
And don't you have a much more solid picture of what the trial will be about and what the judge is like, thanks to our reporters' accounts? The transcripts that we finally get months later don't begin to capture the flavor of the day. It's interesting that they told us that the atmosphere was so cordial, like old friends getting together for a camping trip or getting set to play a big game. It made me think about years ago, when a then-boyfriend took me to Saratoga to watch horse racing for the first time, and we went to the place where the horses walk around in anticipation of the race. A lot of the gamblers were there, and I asked one of them why. He told me that you can often tell which horse will win by their demeanor just prior to the race. The ones that really can't wait to get running show it by the way they are happy and energetic and ready to go. I don't gamble, but I'll tell you this: the horse he told me would win, did. So, thank you, guys, for taking the time to tell us what really happened and what the day was like. I really enjoyed it. Next, who are some of the names on the witness lists?
And here's the letter:
(Workman Nydegger letterhead)
Dear Judge Stewart:
At this morning's pre-trial conference in the above-reference matter, the Court set a briefing schedule regarding (1) Novell's request for judicial notice, (2) issues to be decided by the Court and the jury, and (3) First Amendment privilege issues.
With respect to Novell's request for judicial notice, we would appreciate the opportunity to submit a brief in support thereof, with of course SCO being permitted to file a brief in response. In line with the schedule for the other briefs, we request the right to submit Novell's brief in support of its request for judicial notice next Tuesday, March 2; with SCO to submit its responsive brief next Thursday, March 4 (rather than having to respond to the request for judicial notice next Tuesday). We first discussed this proposal with SCO's counsel, but they have declined to agree.
With the foregoing request in mind, we have taken the liberty of preparing the enclosed proposed order.