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Day 1 of the Jury Trial, SCO v. Novell - Updated 2Xs - We Have a Jury
Monday, March 08 2010 @ 01:42 PM EST

Happily, cpeterson was able to attend this morning's session.

Update: It looks like that will be all the news for today. They are keeping the public in the hall mainly, to fit all the prospective jurors in, so unless there is something unexpected, tune in tomorrow.

Also, I see questions about what's hearsay within hearsay and things like that, so here are all the Federal Rules of Civil Procedure -- meaning the rules you follow for civil trials in federal district courts, and you'll find every other kind of applicable rule linked on the Utah District Court's Rules page. There are local rules as well, and then judges have their preferences, if you recall the judge's marching orders the other day. If you dig and learn something interesting, please share it in your comments. Thanks.

His report on the morning session, Part 1:

Good morning!

We just got out of the early morning session.

Brent Hatch, Stuart Singer, Ted Normand were at the table for SCO; Sterling Brennan, Eric Acker, and Michael Jacobs in for Novell.

Judge Ed Cahn and Ms. Bonnie Fatell were present in the gallery.

Judge Stewart started out by describing again the jury selection process - the potential jurors will be brought in, and the judge will ask questions from the list, with each potential juror standing to answer.

When they get to questions which can't be answered in front of the other jurors, the individual jurors will go into the jury room with only the judge and counsel for both sides present (I didn't catch whether the selection specialists will be present for that part.)

Then they all re-assemble in the courtroom, the judge gives to counsel his list showing who he has dismissed for cause, and each side gets to exercise their three preemptives.

At that point, the jury is informed of who will be staying and the rest can leave.

Then there will be room in the gallery for the public to re-enter.

Because the two sides had failed to get an introductory statement to Judge Stewart, he created his own. The only objection either side had to the statement was that he had referred to the case being about an 'open source computer program known as Unix'; Mr. Singer asked that the words 'open source' be removed, saying "That would be accurate for Linux, not Unix." Both sides agreed to the alteration.

Mr Brennan then noted that, though tardy, the two sides had agreed on an introductory statement. He asked permission to tender it to the court.

He described the issues which had been troublesome for them, and how those issues had been resolved.

Judge Stewart accepted the proffered statement, but told the two sides that it sounded to him like they would both be trying to argue their cases in intro, so he would probably use his own.

There followed some 'housekeeping' matters, as Mr. Brennan put it. First, about the timing of the testimony of Jack Messmann; that will apparently be late in the trial, but SCO won't be resting their case until he has testified.

There was also some discussion of what items will be allowed in opening statements. SCO would like to use a Wall Street Journal article to prove that Novell had claimed ownership of the copyrights in 2003. Novell responded that they didn't mind, as long as they got to use press articles in their statement as well. Mr. Singer objected, saying that the article Novell wants to use refers to SCO as 'the most hated company in tech' and 'a cornered rat' which has rabies as well. (Those sound familiar - I'll bet we have links somewhere.)

Mr. Hatch also objected to a slide Novell produced late, which is of the minutes of the board of directors' meeting the evening before the APA was signed. Mr. Hatch said that even had it been presented timely, and even if it weren't in opening argument, that it shouldn't be admissible since it was hearsay within hearsay, and SCO planned on objecting to it.

Cutting off here for a bit - my phone battery is dying.

Part 2:
Hello again.

Another issue addressed this morning was the presenting of evidence on items which will be decided by the court. This could be confusing for the jury, says Novell. SCO's position is that everything is proof of slander of title, thus there's no need to separate the testimony.

Judge Stewart said that they'd 'play it by ear' during the course of the trial - if either side had evidence which was about something not before the jury, they could let the jury take an extended lunch or go home early, to avoid having to call a witness back on another day.

Ok, I think I've covered the first half hour...

Outside the courthouse, there was some local press - but they were covering a different trial (one about stolen Native American artifacts - it's hit the news here pretty big since the government's primary witness committed suicide last week)....

Later: The court is in recess at the moment. Jury selection is not complete.

Since hanging around and shooting the breeze with potential jurors is *not* on my to-do list, I'm going to go elsewhere for a bit.

I am pretty sure no opening arguments today - not enough time left.

And his final report on day one, for which we can't thank him enough:
Ladies and gentlemen, we have a jury.

The selection was completed at about 12:30; the dismissed jurors were excused, and the gallery was re-filled with the counsel and staff.

(Want to give yourself heartburn? The calendar showed 12 attorneys for plaintiff, and 14 for defendant. 26 minus the six who were at the tables inside leaves 20 lawyers in the hall. Times hourly billing rates times three hours jury selection.)

We got to witness the jury being sworn in. Then Judge Stewart gave the jury their general instructions, and described to them the meaning of the different levels of proof that they would need to be aware of.

Then he instructed them on not discussing the case with anyone, either in person, via internet, phone, cell phone, text messaging, IM, Blackberry, Twitter, Facebook, LinkedIn, or anything else; and also instructed them to avoid reading, watching, or listening to any news about the case on TV, radio, newspapers, or whatever.

After other general instructions (for example, jurors can take notes, but they can't take their notes home) the jury was excused for the day.

Then there were a couple of final items:

On registration of copyrights. Judge Stewart will not rule that Novell's registration of the copyrights was a priveleged action.

On minutes of Novell's board meeting. Judge Stewart asked, "I would presume the minutes will be substantiated by eyewitness testimony?" Yup, says Novell. "Then I am going to allow the minutes in opening arguments."

(On a related note: the news articles mentioned earlier - denied for both sides. They can use them as evidence during the trial, but they are not to be used during opening statements. The openings are supposed to be free of attorneys leaping up "Objection!"ing.)

And finally, Mr. Brennan requested an extension of the exclusionary rule. Normally, this would prohibit a witness from being in the courtroom while another witness was testifying. Mr. Brennan asked that it be extended to include blogged information.

It took Judge Stewart a few seconds to understand why such a thing would be necessary. Mr. Brennan explained that since the procedings of each day would be "reported on the Internet," reading those reports would have the same effect as listening to the testimony in court. Judge Stewart quickly agreed, as did Mr. Singer.

Done for the day - opening statements bright & early tomorrow!


There will be some things that I actually won't report until it's all done, actually. I'll have to play it by ear, but I hope you'll be patient and realize that if I do delay on something, there's probably a very good reason. And I'd ask for your cooperation. People can make up stories to match if they already know what another witness has said about something, and heaven only knows that is the very last thing we want to see happen. So, it's a time for caution and editorial judgment. For that reason, I'd ask our reporters not to add to anything or correct anything in any comments, including their own. Email me instead, so I can make those judgment calls. Thanks.

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