You can read our reporters' notes from the trial if you'd like to know what Dr. Botosan testified to here and here. Dr. Pisano's testimony is here.
Here's a brief snip, from page 40, which will give you a feel for the day. The judge had been thinking out loud right after SCO's attorney Ted Normand had argued fervently for Mr. Davis being allowed to testify, but after the judge's remark, apparently Normand looked like he wanted to continue to argue a point, and the judge says to him the following:
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
|THE SCO GROUP, INC., a Delaware ||)|
|vs. ||)||Case No. 2:04-CV-139TS|
|NOVELL, INC., a Delaware ||)|
|AND RELATED COUNTERCLAIMS. ||)|
BEFORE THE HONORABLE TED STEWART
February 25, 2010
REPORTED BY: Patti Walker, CSR, RPR, CP
[address] Salt Lake City, Utah [zip]
A P P E A R A N C E S
|For Plaintiff:|| Brent Hatch|
HATCH JAMES & DODGE
Salt Lake City, Utah [zip]
BOIES SCHILLER & FLEXNER
Fort Lauderdale, Florida [zip]
BOIES SCHILLER & FLEXNER
Armonk, New York [zip]
|For Defendant:|| Sterling Brennan|
Salt Lake City, Utah [zip]
MORRISON & FOERSTER
San Francisco, California [zip]
SALT LAKE CITY, UTAH; THURSDAY, FEBRUARY 25, 2010; 9:00 A.M.
THE COURT: Good morning. We are here in the case
of SCO Group vs. Novell, Inc., case 04-CR-139. Representing
the plaintiffs we have Mr. Brent Hatch, Stuart Singer, Ed
Normand, Jason Cyrulnik, and Mr. Ryan Tibbitts. On behalf
of defendants Mr. Michael Jacobs, Eric Acker and Sterling
Counsel, I hope this is not going to be a problem.
My intention is to go ahead and hear argument on the three
Daubert motions and then take a break and come back and do
the final pretrial conference. Is that agreeable with all
Mr. BRENNAN: It is for Novell, Your Honor.
MR. HATCH: For the two o'clock as originally
scheduled or just a break?
THE COURT: A break, 15 minutes.
MR. HATCH: We can handle that.
THE COURT: We do have three motions, Daubert
motions that have been filed by defendants.
Mr. Brennan, may I assume you will be making the
MR. BRENNAN: Your Honor, I was intending, if it's
agreeable to the Court, to argue one of them regarding
Christine Botosan. Mr. Acker was going to present argument
on the other two involving Pisano and Davis, if that's
THE COURT: That will be fine. I prefer we go
ahead and hear your side on all three of them and then give
plaintiffs the opportunity to respond. So if you'd like to
go ahead, please.
MR. BRENNAN: It is it agreeable if I start with
THE COURT: Absolutely.
MR. BRENNAN: May it please the Court, I wish to
present brief argument, Your Honor. I know the Court has
had the benefit of the papers. And absent suggestion I do
otherwise, I'll try not to repeat everything that was
already set forth in the brief.
THE COURT: Thank you.
MR. BRENNAN: Your Honor, I think really, cutting
through the arguments, there are probably two to three
critical issues that we believe would suggest that the Court
ought to grant the motion. And the first that I wish to
focus on is the so-called event study that is really the
linchpin of Dr. Botosan's analysis. We believe, as we have
described, there are at least two fundamental problems with
the event study.
The first is the lack of relevance to the event
study to the lost profits claim. This Court has already
ruled that a drop in stock price is not going to be a
subject of the claims in this case. It's already ruled on
that. The event study and the analysis that goes with it is
really intended to focus on a track or an attempted
correlation between NASDAQ and SCO's stock performance.
That's not at issue here. That's not a relevant inquiry for
purposes of lost profits.
What Dr. Botosan does attempt to do is to draw
some correlation between SCO's stock price and NASDAQ and
then adhere to that some sort of event study to suggest that
individuals who otherwise might have taken licenses under
the SCOsource programs chose not to do so because of
statements or events involving Novell's claim of ownership
in the UNIX copyrights.
So the event study analysis is fatally flawed, not
merely irrelevant but fatally flawed because it doesn't
focus on the real issue in a lost profits analysis, and that
is the question of whether or not SCO lost revenues and thus
profits from the sale of SCOsource licenses because of any
conduct by Novell. Instead, it's all attempted to track or
correlate to NASDAQ and the performance. And the problem
there, Your Honor, is there simply is not a correlation, as
we demonstrated in the papers.
The regression analysis shows that there simply is
not a predictability factor that would allow this Court to
allow this analysis to get past the gatekeeper function that
this Court performs.
Now we did not and our expert for Novell did not
have a chance, until very recently, to see really what the
output was by Dr. Botosan. Our expert did attempt to do
some sort of reverse engineering, as it were, to find out
really even what the so-called R2 measurement was, which is
the predictor of a correlation. And that reverse analysis
suggested that the correlation was so low as to have
absolutely no meaning.
In the declaration that was just submitted to this
Court, I believe this past Monday, it was suggested that the
predictability factor was a mere 14 percent. And so that
demonstrates by the authorities that we've cited that there
really is not a sustainable, reliable predictability factor
that's even built into the progression analysis that Dr.
We've also referenced to the Court case law that
suggests that even a correlation factor as high as .45, or
45 percent, is not sustainable and should not be accepted
for purposes of statistical analysis to demonstrate a
purported correlation between the events at issue and the
So here we face a situation where not only is the
event study irrelevant to the issue of lost profits, but
even the regression analysis that was performed itself
demonstrates that there is no correlation between the events
that are being presented to the Court. And in Dr. Botosan's
late filed submission, she suggests that the correlation
factor, as I said, is a mere 14 percent, which is well below
the threshold that's been accepted by courts.
THE COURT: Mr. Brennan, isn't that simply your
expert's view of Dr. Botosan's conclusions? I mean isn't
that best dealt with by those two experts going toe to toe
and you, on your best behavior, cross-examining the expert
of plaintiff and so on? I just don't know whether or not --
I mean I'm not disputing your expert's calculation, but it
is something that the jury ultimately gets to decide,
MR. BRENNAN: Well, I certainly do agree that
would and could be a battle between experts and we would be
able to, through cross-examination, demonstrate the failure
of Dr. Botosan to make any correlation that has any meaning.
No question about that. The issue here I believe, however,
is whether or not we should even get to that point because
the presentation and the analysis that's done is not limited
merely because of a weight issue but because it doesn't even
meet an acceptable standard. We were, in fact, dealing with
so-called junk science here.
As we demonstrated, the authorities show that in a
correlation factor as low as Dr. Botosan states, and I'm
going to rely upon her number in her declaration rather than
our expert's calculation of a much lower coefficient, with
an R2 as low as .14, it doesn't even get close to the
threshold that courts already have rejected as being too low
to allow the issue to even get to the jury for purposes of
So I certainly do agree with the Court that the
experts could, in essence, battle it out and we could
diminish the weight of the argument by cross-examination,
but I'm suggesting to the Court that we need not and should
not get there because of the gatekeeper function. This jury
should not be required to, in essence, endure what I call is
Your Honor, the other points that we raised I do
believe also could suggest to the Court that Dr. Botosan's
testimony ought not be allowed and we have the problem where
she is relying upon not mere inadmissible hearsay on its
own, but is being used as a conduit to pass through
information that is inappropriate. We've cited some of the
examples to the Court. For example, some of the projection
analysis, we've had no ability to analyze whether it's
reliable, nor does Dr. Botosan in her report suggest that
there has been any independent analysis by her on the
projections that she's relying upon.
Instead, her testimony is being offered, again, as
a mere conduit to pass through information where she's not
independently analyzed it. She has not independently
verified that it's reliable. Nor does she know or does she
purport to know whether or not those projects meet any sort
of rigor of reliability. That's another problem, Your
Honor. And I believe under the gatekeeper function, that
would be a basis for you to reject Dr. Botosan and her
analysis and it ought not to go to the jury.
Now, Your Honor, with those arguments, I think at
least those three points we suggest would be sufficient.
There other points we've raised that are in the papers.
Unless the Court has questions, I would not press them
further at this juncture.
THE COURT: Thank you, Mr. Brennan.
MR. BRENNAN: If I might turn it to Mr. Acker to
present argument on the other two motions.
THE COURT: All right.
MR. ACKER: Good morning, Your Honor.
THE COURT: Good morning.
MR. ACKER: I will start with Dr. Pisano. Much
like the argument with Dr. Botosan, I think the Court has
hit the nail on the head. The issue here is whether this is
something that simply goes to the weight or is something
that the methodology used by Dr. Pisano is so flawed that
the jury should not even get a chance to hear that evidence.
What we think is the critical point in our papers
obviously is this Yankee Group survey that Dr. Pisano relies
on. He relies on it and underlies all his analysis on what
the market penetration will be. That is of the entire Linux
world, what percentage may have taken a SCOsource license.
THE COURT: Mr. Acker, if I may, I realize the
disadvantage you all have of filing a response with no
reply. In their response, the plaintiffs argue that he did
not rely on just one Yankee Group study but rather on two
other studies, including another by Yankee Group. You did
not address that in your initial papers, so I would ask you
to, please, somewhere in the course of your presentation, to
get to that point.
MR. ACKER: I will do it right now, Your Honor.
The percentages that underlie his damages analysis
of 19-percent and 45-percent market penetration come from
the Yankee Group study that he says in his deposition he
knows virtually nothing about. He doesn't know how many
companies were surveyed. He doesn't know what companies
were surveyed. He doesn't know what questions were asked of
those companies. He doesn't know what responses were given.
He doesn't know what parameters or conditions were placed on
that survey to give it any indicia of reliability.
Attached as Exhibit B to our moving papers, Your
Honor, is a copy of the Yankee study. But really all he's
relying one is the one chart, the graph chart we put forward
in our papers. That's where he's coming up with this 19,
45 percent. The other two studies are what he uses as,
quote, checks. But the numbers in those studies, the
alleged market penetration numbers in those studies aren't
the same. They are within the range, but they are not the
same as the study he's relying on to come to his conclusion,
to come to his conclusion that there can be as high as a
45-percent market penetration.
In addition, there is actually no evidence from
Dr. Pisano that he knows anything about those studies
either, that he knows what companies were surveyed, how
those studies were conducted.
So I think we have really crossed the line, Your
Honor, from simply attacking or cross-examining Dr. Pisano
for the jury with the failings in his analysis where we have
an expert who is relying on methodology that simply can't be
THE COURT: Mr. Acker, to that point, let me ask
you this. If he knew everything about these studies -- you
know, it's not uncommon for experts to rely on studies
conducted by others, as you well know. But if he knew
everything about it, if he knew who had been interviewed and
the nature of the questions, et cetera, et cetera, would you
not agree that in that case he should be able to rely upon
MR. ACKER: Yes.
THE COURT: So this, then, is not really a matter
of reliability going to the method. It is the weakness in
that method; is that not correct? Let me be more precise.
You don't disagree with his methodology, you disagree with
the extent to which he undertook an analysis of his
underlying study? Isn't that really what we're talking
about? It's not the methodology, it's just you don't think
he did his own homework before he reached his conclusions?
MR. ACKER: I don't disagree with experts relying
on these sorts of market surveys when they have done their
homework to determine the reliability of those surveys. I
do believe and our position is that his methodology is
flawed because he's relying on a survey -- in fact, relying
to a certain extent on three surveys, which he knows
virtually nothing about other than what he reads on a piece
of paper. So I believe it does go to the methodology.
I understand the Court's point, but our point is a
diligent expert in this field conducting this sort of damage
analysis would undertake to determine what sort of rigor was
used in the market analysis upon which he's relying.
Unless the Court has other questions about Dr.
Pisano, I will turn now to Mr. Davis. And I think
Mr. Davis, unlike the two damages expert, is in a bit of a
different field, a different manner or different topic
obviously. But the issue there is whether or not this Court
will allow a paid lawyer to come into this courtroom to rely
on his own knowledge of copyright law and essentially to
tell the jury that he believes, based on his 30 or 40 years
of experience as a licensing lawyer and his knowledge of
copyright law, to say that the Amendment No. 2 transfers the
UNIX copyrights, because that is what his testimony purports
He will testify that SCO either needed a license
or they needed ownership of the UNIX copyrights in order to
exercise their rights with respect to the acquisition of the
UNIX and UnixWare technologies, which is the exact language
of Amendment No. 2. That's his first position.
He then says I look at this deal, I look at the
APA, and I don't see a license here. I don't see a direct
license and I don't see an exclusive license. Therefore, it
is my legal opinion that SCO must have had ownership of the
UnixWare and UNIX copyrights. That is his opinion.
His opinion is not based on any legal instructions
from this Court, any jury instructions from this Court, any
decisions by this Court. It is his understanding of the
legal standards based on his own legal practice. That comes
directly from page 9 of SCO's opposition, that he is going
to come into this court and give that opinion based on his
understanding of the relevant legal standards based on his
own legal practice.
And I think what is instructive to this Court is
the Tenth Circuit's opinion in Specht v. Jensen, which was a
Section 1983 case in which the underlying conduct was an
illegal search of a home. There the trial court allowed a
criminal defense lawyer to come into court and, based on his
knowledge of Fourth Amendment jurisprudence, to tell the
jury I believe this was an improper search and seizure. And
the Tenth Circuit reversed saying that was an improper use
of an expert opinion, that allowed a lawyer to give his own
opinion about the relevant law underlying a claim that
basically told the jury that the claim was valid.
The Tenth Circuit also instructed in no uncertain
terms that we need to be very careful when we have expert
testimony from lawyers. They are different than damages
experts, and they are different because jurors will tend to
give additional weight and stock to that testimony and
essentially usurp this Court's role to instruct the jury as
to what the relevant legal standards are.
So we submit that Specht is controlling, that
Mr. Davis should not be allowed to opine on his legal
understanding of the copyright law to support SCO's argument
that Amendment No. 2 transferred the UNIX copyrights. They
haven't cited a single case, Your Honor, which a lawyer has
been allowed to give such testimony. The cases that they
rely on, both Tenth Circuit and elsewhere, are totally
different factual situations.
In Phillips, Your Honor, it was a summary judgment
setting in which a court allowed testimony by not a lawyer
but by personnel, HR people about common uses of terms in a
contract. In Oakland Oil it was an expert in oil production
and in pipelines testifying about his opinion regarding why
certain fraud occurred in the case, but not the meaning of
contract by a lawyer. Finally, in U.S. v. Bedford, it was
an IRS agent testifying whether or not federal tax laws had
been violated. Not a single case, Your Honor, in which a
lawyer has been allowed to come in and opine to the legal
standards and essentially the jury that one side should win.
We think Specht controls and he should not be allowed.
THE COURT: Mr. Acker, let me ask you this. Let's
say Mr. Davis was not an attorney but rather was some person
who had developed an expertise in negotiating these
contracts and had for many years participated in the same
type of negotiations, and so on, that Mr. Davis asserts that
he has. Would that expert be permitted to testify? In
other words, is it really the fact that Mr. Davis is an
attorney that would disqualify him in your mind?
MR. ACKER: That's a big part of it, Your Honor.
But also I don't know what the relevance would be if he was
just someone who had been a businessman involved in
licensing that was not involved in any way with this deal,
and there's no dispute that he knows nothing about the APA
Amendment No. 2 other than what he's read. But I also think
we need to look at exactly what testimony is being proffered
and what testimony is being proffered is that that I laid
out, and that his underlying basis for that testimony is his
understanding of the relevant legal standards. I don't
think he can get to his opinion unless he does offer some
sort of legal opinion regarding what would be required in
his view for SCO to gain the benefit of the deal. I don't
know how he could give that testimony without treading into
this Court's province of being the determiner of what are
the legal standards of this court.
THE COURT: Mr. Acker, let me ask you this. My
understanding of his testimony would be that he had
participated in a large number of negotiations and
ultimately writing contracts dealing with the transfer of
copyrights. And his argument would be, first of all, there
either had to be a copyright or a license. And in this case
it's his conclusion that it was the transfer of a copyright.
Isn't that the essence of his testimony?
MR. ACKER: That is the essence of his testimony.
It goes beyond that, Your Honor. There had to be a license
or there had to be ownership. I don't see a license,
therefore there has to be ownership.
THE COURT: All right. Then you stated it much
better than I did.
The dilemma is that I don't see him speaking as an
attorney, I reached this conclusion. My understanding of
his testimony is he's speaking as someone who's participated
in similar transfers, that it had to be one or the other,
and based upon this language it's my opinion as an expert,
not as an attorney, but as someone with experience that it
was a transfer of the ownership.
MR. ACKER: It's pretty clear from the opposition,
Mr. Davis would testify that he reaches his conclusions
about what copyrights are required based on his
understanding of the relevant law. I mean he is going to
say based upon my 40 years of experience in the law
regarding copyright law.
THE COURT: If I were to rule that he could not
make reference -- or could not draw a conclusion, his
testimony could not make reference to legal conclusions but
rather his conclusions based upon his experience, would that
solve your concern?
MR. ACKER: The problem is he can't give that
opinion then, Your Honor, because his opinion is based on
his understanding of copyright law and what is required for
SCO to take certain actions, what rights they need to do
that. That by definition is giving a legal opinion.
THE COURT: All right. Anything else, Mr. Acker?
MR. ACKER: No. Thank you very much, Your Honor.
THE COURT: Thank you.
Mr. Brennan, Mr. Acker, I do intend to give you a
chance to reply.
MR. HATCH: Your Honor, like Novell, we took the
opportunity to split this up amongst the lawyers, so I will
handle the Botosan Daubert, Mr. Singer will handle the
Pisano, and Mr. Normand the Davis, if that's okay.
Novell didn't spend a lot of time on Dr. Botosan's
testimony regarding the damages analysis. And it's
understandable. I think if you look at the introduction in
their brief, it kind of gives us the whole flavor right
there and I don't think we really have to go a whole lot
further. They state in their introduction, to arrive at
lost profits, Dr. Botosan first calculates lost revenues by
subtracting SCO's actual licensing revenues from what they
were projected to be. She then deducts what she estimates
SCO's costs would have been to generate those revenues in
order to arrive at lost profits.
That's a true statement of the process that's in
the methodology that someone of the expertise of Dr. Botosan
would go through to reach that analysis. They acknowledge
that because they say the two basic flaws that infect this
part of her analysis both go to her starting point. They
say she cherry-picked the highest projections she could
find. And, second, instead of performing any meaningful
analysis of those cherry-picked projections, such as
applying discounts based on the recognized risk factors, she
just parrots them.
So what they are essentially saying here, Your
Honor, in going through the brief, we're not challenging her
expertise, we're not challenging her credentials, we're not
challenging her methodology, we're not even claiming she
used some novel methodology that couldn't be tested.
THE COURT: To be accurate, they are not
challenging her overall methodology. I think to be
accurate, they do challenge the application of some of her
MR. HATCH: But the application being what data
she's inputting. But nowhere did they say with this kind of
a calculation --
THE COURT: I agree. I didn't hear either from
Mr. Brennan nor in his written materials anything -- I agree
with you. All right.
MR. HATCH: They didn't say she was unqualified to
perform the analysis, and didn't challenge any of those
things. They basically came to the point that they said,
you know, we don't like the data she put in.
And ultimately that is the analysis, under
Daubert, the Liquid Dynamics we cited, the Loudermill case
we cited, the Subaru case we cited, that courts have
consistently said goes to the weight of the testimony, not
In fact --
THE COURT: Mr. Brennan's argument is when the
methodology, the specifics of the methodology, not the
overall but some of the specifics of the methodology are so
out of line that this Court has an obligation to preclude
the reliance or testimony regarding that out of line method.
MR. HATCH: Well, let's talk about that for just a
second because one of the things they say, and we only have
a few minutes today and we filed, you know, the supplemental
declarations of Dr. Botosan that go point by point. It's
very interesting here because like in the Loudermill case,
they filed as an exhibit to their brief the report of Dr.
Musika -- excuse me, Mr. Musika, not doctor, Mr. Musika, who
has attacked Dr. Botosan in a classic battle of the experts.
As the court said in Loudermill, again, while Dr. Lowry's
opinions may have been subject to attack, as indeed they
were -- in other words, exactly what's going on here -- such
issues go to credibility, not admissibility.
Now this cherry-picking I think in and of itself
says that, it says we're attacking the credibility, we're
attacking, you know, her numbers.
Just to kind of give you a little bit of a flavor,
if you don't mind, I would like to give you two things that
I've derived from Dr. Botosan's report, if I may?
THE COURT: Yes.
MR. HATCH: Several of the things that they say
about this cherry-picking just aren't true. Again, I
believe this goes to weight. I don't think it goes to
admissibility. For instance, on the first bar graph that I
provided to Your Honor, Dr. Botosan looked at the Deutsche
Bank report. That's an independent report. It wasn't
something that SCO hired. And we can debate back and forth,
but they said we picked the highest numbers. Well, Dr.
Botosan's report in paragraphs 43 and 44, you see that she
actually chose scenario number two, which wasn't the lowest
and wasn't anywhere near the highest. And throughout her
report, she explains the basis for why she picked the
numbers she did and indicated that in virtually every
instance, she tried to pick very conservative numbers. As a
matter of fact, her report said that the damages that she
eventually came to could have been significantly higher, you
know, double what she ultimately opined on, which is
evidence she didn't pick the highest numbers.
The second is, again, you know, the methodology
they are not challenging that you have to take, you know,
these factors, and one of the factors is how much are you
going to -- the lost sales as a number, you have to multiply
that by the licensing price, at least in the case of the
RTUs, which were essentially the covenant not to sue. The
initial list price that SCO used was almost $1400. And the
Deutsche Bank, when they were doing an analysis for their
own people for independent means, they used a conservative
analysis, as you would if you were going to put money into
something. They said, we're going to attribute 100 to $300.
Even with those numbers, she picked the lowest. She picked
So if we go through -- when they are saying she's
cherry-picking, she's always using the largest numbers, they
are not really being fair about the way that she did her
And, again, weight, not admissibility. All these
things, if they want to attack her on it and cross-examine
at trial, we welcome that. I think Dr. Botosan is going to
handle that very well. She's extremely well qualified.
She's got a Ph.D in accounting. She's more qualified, at
least on that basis, than Novell's expert, the person who's
attacking her at this point. If you read the briefs, there
are many errors in his calculations as well, which we intend
to cross-examine him on.
Now the second point and one of the things they
are most concerned about here, and Mr. Brennan spent the
bulk of his time on, is what he calls the event study.
Novell really makes a classic error here because what they
are trying to do, and I will read again from their
introduction, and it's very similar to what Mr. Brennan
argued here today, he said in the introduction, Dr.
Botosan's causation analysis is even more deeply flawed.
First, she bases her opinion on an event study purporting to
show that Novell stock caused SCO's stock price to drop, but
the Court has already ruled that decline in stock price is
not an appropriate claim for special damages.
Now he said again today that it wasn't relevant,
he said the event study was to damages -- that's what he
said today, not relevant to lost profits. So it's fatally
flawed because of that reason.
Well, what that misses is that the event study was
only to causation. It has nothing to do with damages in
that it's not -- and I challenge on rebuttal, if they would
like to, is get up and show a single number -- damage
number, monetary number that was taken from the event study
that made it into Dr. Botosan's damages numbers. It's not
there. Because this is to show causation, which is an
independent element that we have to show a trial. It does
not figure into the damages number.
So they're attacking -- and they are setting up
the classic straw man, something they say, well, you're not
allowed to use this for damages based on the Court's ruling.
Therefore, you must be using it for damages, so guess what,
it should be out. We didn't do that. I would challenge
them to do that.
Now if Your Honor will allow me, I have one more
slide I would like to show. This particular slide comes
from Dr. Botosan's report. And what it shows is this is
just a snapshot from the data that she was able to provide.
This is the date of the -- the stock price of SCO on the day
of the May 28th slander statement. And the reason this goes
to show -- and they don't like it and they want this out, is
because, as you can see, the stock price is fairly flat
during the morning. Then at roughly one o'clock, when
Novell made its slander statement, it took a dramatic and
Now if we had just come to court and put this
piece of evidence in, and we didn't have Dr. Botosan's
study, they would have argued to keep this out because we
had not ruled out other potential causes for the precipitous
price drop. Well, that's the purpose for Dr. Botosan's
event study is to essentially rule out other causes for
this. And her studies do that on a very complex and
statistical analysis that shows that based on, you know,
standard accounting and statistical analysis, the reason for
that drop was Novell's slanderous statement. That goes
really to the heart of the case. But nowhere here does she
then extrapolate the drop from -- I'm looking here, and I'll
say from 8.50 down to $6, and nowhere does she take that
$2.50 drop and plug it into some formula, because this
merely shows causation, what's happening when they slander
the title of SCO.
The one thing they don't mention is that one of
the tests for reliability on this is the P-value. And as
Dr. Botosan's declaration -- I think it's Exhibit C in
paragraph 12 -- indicated, the P-value indicates there is
only a .21 of one percent chance that SCO suffered this 24.6
negative abnormal return on May 28th, 2003 by chance. Thus,
the event study provides exceedingly compelling evidence
that SCO's market value suffered an economically
statistically significant decline on the day it made its
slanderous statement. That's a causation analysis. So it's
not -- it's understandable that the attack is that we're
using this to show lost profits because, you know, that is
something they can argue, but they haven't argued this on
The event studies -- even Dr. Musika admits that
event studies are generally used in the business.
The only other attack really that they make to
this event study is that somehow the R2 value -- and they
cite the Griffin case, they say the R2 value isn't a .45.
The problem is when you are looking at the Griffin case,
Griffin is not an event study case. There is no
corroborating evidence like Dr. Botosan provided throughout
her report. And Griffin did not hold and no cases ever
cited that .45 is a required threshold. There are no other
And, here, we're not trying to -- we're not trying
to look and explain all events over the two-year period of
Dr. Botosan's study. We're only looking at dates with
significant abnormal negative returns. And the only one
that was there and the most significant one is this May
28th, 2003 point, which I just spoke about.
And if we talk about how the professional deals
with it, if we go to the Litigation Services Handbook, it
says, one should not accept or reject in law based solely on
R-Squared. I understand that. If we look at the P-value,
this is a cinch.
Now there are challenges to each of these things
and all the other things in there go to the weight. They
can cross-examine and they can go after it that way, but it
isn't going to admissibility and they haven't cited a single
case that really says that.
The last thing is they talked about Dr. Botosan
being what they call a conduit for opinion hearsay. They
talk -- they use the pejorative saying she's just parroting
what other people say. That's not a fair reading of her
If you look at her expert opinion, she, like most
experts, relied on a number of things. She relied on
studies. She relied on -- in every case I've been involved
in, I know Your Honor has, she looked at depositions. She
looked at testimony. She interviewed witnesses. Then they
believe she just repeated those things, what was good and
what was bad. That's not reality.
If you look at her report, she was very clear that
not only did she assess the projections, but she also
adjusted revenues for incremental costs in calculating lost
profits. Her calculations, methodologies are undisputed.
She used a regression analysis to estimate incremental costs
to SCO, including the cost of revenue, administrative cost,
marketing cost. It's undisputed that any of these
calculations are not contained in any of the so-called
parroted projections. In other words, they said she wasn't
doing an expert analysis.
The reality is none of these are in the so-called
parroted statements. She had to take those statements and
then do an expert analysis, which she did. Just the
citations in their brief to some of the math, I don't
pretend to understand, shows that she actually was doing
something that experts do.
Then she corroborated her opinion from multiple
sources. The damages calculations were corroborated by lost
profits determinations by Dr. Pisano. In other words, she
came to the damages from two different directions -- excuse
me, she used Dr. Pisano's and she also used the other
projections and, interestingly enough, they corroborated
each other. That's other evidence that her expert analysis
was not only an analysis but also was accurate. Her
causation study analysis is corroborated through interviews,
depositions and all the other things that I have talked
So, Your Honor, they have not made -- they have
made a basis for the trial. Undoubtedly, we're going to
have a hotly disputed trial. We're going to have experts
that are going to be cross-examined. It's going to be real
exciting. But they certainly haven't created a basis for
saying we don't go to court here.
We'll turn the time over to Mr. Singer.
THE COURT: Thank you.
MR. SINGER: Good morning, Your Honor.
I would like to note at the outset that the
motion, while being styled one as to disqualify Dr. Pisano,
actually was more targeted at two of his specific opinions.
There is no challenge to Dr. Pisano's qualifications. There
is no challenge to a great deal of his report where he
discusses issues such as causation, the importance of this
issue to entities buying and operating a system, that demand
for indemnification would logically be high, his examination
of alternatives to SCO for that indemnification, and his
opinion regarding inability of SCO in the future to pick up
after all the dust settles along with this program.
I would like to turn to the two opinions they
specifically target. One of them was not addressed in the
oral argument. It's simply an argument of relevancy, not an
argument about his methodology and the size of the relevant
market. And it clearly is relevant for a jury to know this
is a large market this slander affected and that that
factors into their consideration of all the other evidence
they will hear in the case.
The balance of the attack by Novell is focused, as
I think the Court has apprehended, on his reliance on this
2004 Yankee study for the purpose of saying that in his
opinion the range of likely purchasers of SCO's product but
for the slander was between 19 and 45 percent.
Now they attack that on the basis that Dr. Pisano
didn't understand enough about the study. I would suggest
that, first of all, as I think the Court indicated in a
question to counsel, that doesn't go to the methodology.
That goes, we would submit, to weight.
But, second, what it really does is it goes to a
question of the memory test at the deposition. Dr. Pisano
recalled this was a Yankee study. He testified, as he
stated in his report, that Yankee studies are relied upon in
the industry, and that they had about a thousand people.
Now in his rebuttal report he references a further
document -- this is at footnote 34 of his rebuttal report,
which is the full study, not just the report of the graph
which is appended to the motion that Novell filed, but the
full study, which provides a section on methodology. This
is at page -- this is the Bates stamp SCO1668632, which
Novell has had and their experts have had, that says you had
a thousand plus respondents, that is conducted in March and
April 2004, that was an independent, non-sponsored,
Web-based survey of IT administrators and executives
worldwide, and it lists the specific questions and gives the
Now match that up, if we could, with the only
source, the Federal Judicial Center, notes in the excerpt
that Novell quotes as to what an expert should know about a
study which he relies upon that was conducted by someone
else. They say that that individual should know the purpose
of the survey. That's known, the interest in buying
indemnification among Linux users. The survey methodology,
including the target population. We have that here,
companies with over 5,000 employees. The sampling design,
that it was an Internet response survey with a thousand
responses. The survey instrument, you have that. We have
exactly the questions asked, so that can be evaluated, along
with the four different potential responses. The results,
we have each of the breakdowns. Then the statistical
analysis. There is no statistical analysis here. We're not
trying to extrapolate these results statistically into some
other form. They are being used directly.
So all of the issues with respect to the 2004
study are matters for fair critique. Mr. Musika, their
expert, has certainly critiqued it and can play itself out
in front of the jury. And Dr. Pisano has answered those
critiques in his rebuttal report and would do so in front of
the jury. For example, one of the critiques is it doesn't
consider price. He says, number one, we're looking at this
for damages purposes at the lowest possible price of $100.
And, secondly, he says, one of the two other studies,
because he didn't rely just on this, he looked at two other
studies, the 2005 Yankee study actually asked people about
the price they would be willing to pay. And of the
20 percent that said they would be interested in buying
indemnification, you had a very sizeable percent, 40,000,
who would spend an incremental 25,000 to 100,000 annually,
and another 20 percent would spend 100,000 to 250,000. So
you do have information in the data he relied on that goes
to price as a factor and demand.
Now you have, as I note, three studies. Only one
of them has really been critiqued. The 2005 study is
consistent. As counsel indicated, it was within the range
of 19 to 24 percent. They are certainly able to argue it's
24 percent. Their expert, Mr. Musika, quotes a study saying
it's eight percent. This is what is appropriately relied
upon by experts in a field in addressing the issue of how
much demand would there have been for a product that SCO was
trying to sell when the slander occurred.
Now I would note that the case law here, Your
Honor, supports the view that this goes directly to weight
and not to admissibility. I would like to point to the
Tenth Circuit's opinion in Compton v. Subaru, which we've
cited in our papers, which says, as long as a logical basis
exists for an expert's opinion, the weaknesses in the
underpinnings of the opinion go to the weight and not the
admissibility of the testimony.
Novell's cases are quite distinguishable. The
Massey case was a criminal case where you had an
overenthusiastic prosecutor drawing some statistical
comparisons about the likelihood of misidentification, and
the court said that went too far for closing argument.
The Bogacki case, the expert didn't know the
nature and extent of the source at all from which his
statistics were gathered. Here there's quite a bit of
information in the record.
In the Sheats case, the testimony was actually
I think the most relevant case is actually the
decision of the Eleventh Circuit, which we quoted -- cited
to in our brief, that's the Jellibeans v. Skating Clubs
case, where the Eleventh Circuit talked about a situation
where you had a survey, where there were technical
deficiencies that were alleged by the other side regarding
sampling and the interviewers, and the Court said, quote,
these alleged technical deficiencies affect the survey's
weight and not its admissibility, citing a considerable
amount of other authority.
So we think this is fair ground for
cross-examination. It's similar to the information that Mr.
Musika relies on when he talks about surveys, and the motion
should be denied.
THE COURT: Mr. Singer, before you go to
Mr. Davis, I want to ask Mr. Acker a question. I had meant
to ask you this, so I can get this on the record so Mr.
Singer doesn't have to get back up.
In your written memorandum you challenged Mr.
Davis's qualifications asserting as a software attorney he
has a very limited expertise and he has no expertise in the
running of a company. Are you still asserting that as a --
are you still challenging his qualifications?
MR. ACKER: We're certainly challenging his
qualifications if he is going to opine as to what is
required in order to run a software company, yes, Your
THE COURT: Thank you.
MR. SINGER: Your Honor, with the Court's
permission, I would like to turn it over to my colleague,
Mr. Normand, who will address Mr. Davis's motion.
THE COURT: All right.
MR. NORMAND: Good morning, Your Honor.
May it please the Court, Mr. Davis is well
qualified and he would offer relevant admissible testimony
that would be helpful to the jury here. I don't think
Novell's arguments, either in their brief or today, do
justice to the nature and scope of his testimony or to the
controlling law. Let me start with the controlling law.
As Your Honor's own opinions are reflected, as
Novell's papers and argument frankly fail to reflect, a
qualified expert who has specialized knowledge and whose
testimony would be helpful to the jury is permitted to speak
to the ultimate issues in the case and, in doing so, is
permitted to speak to his understanding of the law.
Even the Specht case that Novell cites and relies
upon makes that clear. And the cases cited therein that we
pointed to in our brief underscore that point, that an
expert is permitted to speak to his understanding or her
understanding of the law.
Probably the closest analogy, the line of cases
that we also cite in our brief, that Novell did not address,
come from the expert testimony that is permitted on discrete
and technical issues in the area of intellectual property,
particularly patent law. In the patent law context, an
expert is permitted to speak not only to the question of
obviousness, which is a question that by definition involves
some consideration of the law of obviousness, but experts in
that context are also permitted to testify to the issue of
whether one patent infringes another patent, which, again,
by definition has to involve some consideration by the
expert of the law, his or her understanding of the law.
In this case the Tenth Circuit, as Your Honor
knows, has remanded on the issue of what copyrights were
required for SCO to exercise its rights with respect to the
technology it had required under the amended APA. And in
this respect, I think Novell fails to do justice to
Mr. Davis's opinions in the following ways. He can offer
two kinds of testimony with respect to that issue. One,
based on his extensive experience, he can speak to custom
and practice in the industry and, two, he can speak to his
understanding of why that custom and practice exists.
Let's start with the first one, custom and
practice. He's been doing this for over 40 years. He's
negotiated thousands of licenses. He's advised hundreds of
executives on how to do this. He's never seen an implied
license that would allow a software company to operate a
sophisticated software business. He's never seen one. In
his view, there's a custom and practice whereby you, as the
title of the APA suggests, transfer assets. Now that's
factual testimony. That's testimony that has nothing to do
with his view of the law. It's testimony on which,
consistent with Your Honor's opinion in Slicex, they can try
to cross-examine. They can try to tear away at the
foundation of that factual testimony. Maybe there is no
such custom and practice. He's convinced there is and he
has the experience to testify to.
Now he can also testify to his explanation for why
that custom and practice exists. Why would it have been
that in 40 years of doing this he's never seen an implied
license of this sort. Why would that be. First, he has a
practical explanation, which he offers in his opinion.
There is a complete lack of transparency for the licensee if
all he has is an implied license. He can't be sure what the
scope of his rights are.
Second, there is lack of transparency for third
parties. They don't know what the scope of the licensee's
rights are either. They can't have confidence that that
licensee is purporting to grant them certain rights, the
licensee actually has those rights. Again, that's factual
testimony. That has nothing to do with his understanding of
the law. That is simply his practical explanation for why
he thinks the custom and practice exists and why it is that
in 40 years of doing this, he's never recommended to anyone
that they do an implied license and he's never seen one.
THE COURT: Mr. Normand, would you slow down a
MR. NORMAND: The third point would be, and this
is where the rubber meets the road on Novell's motion, to
some extent his testimony would involve his understanding of
the law consistent with what the Tenth Circuit has said is
appropriate. He would offer the explanation for the custom
and practice based on his understanding of the law. The
reason it has always worked this way is because you either
have to own the copyrights or you have to have a clear
license to them in order to operate a sophisticated software
company, such as SCO has.
He would explain in that context, I'll tell you
why I think you have to have one of those rights, it's my
understanding of the law that if you don't own and if you
don't have a license, you can't -- literally can't make
copies of the software from day to day, which is how a
operating software company works, and you can't bring claims
in court to enforce your rights. So he says I've never seen
an implied license like this. And if it's not an implied
license, then SCO has to have the copyrights. The
copyrights are required.
He would not tell the jury I have concluded that
under the APA it must be that the parties intended for SCO
to acquire the copyrights. He would say, I think the
copyrights are required. I'm not commenting on what the
parties meant by using the word required, but as I interpret
it, I think they are required. He wouldn't instruct the
jury on the law they have to apply in making that decision.
He wouldn't tell them what kind of extrinsic evidence is
relevant. He wouldn't tell them how to interpret a
contract. He would explain this is my understanding of 40
years of doing this.
Now Novell argues about his lack of experience and
Your Honor asked the question about experience. I think the
fact that he's an attorney is irrelevant. They cite to a
case suggesting that as a threshold matter, an attorney
can't be an expert in this kind of context. I think without
fixating on the point, the argument that his testimony is
not merely less relevant or less probative, their argument
that his testimony is altogether inadmissible because he
hasn't owned or operated a software company runs sharply up
against one of the themes of the trial, which will be that
attorneys played significant roles with respect to the
amended APA in deciding what rights were and were not
So I think, for all those reasons, Mr. Davis
offers admissible, relevant helpful testimony to the jury
that has nothing to do with his understanding of the law.
And even with respect to that testimony that involves his
understanding of the law, none of the concerns in the Tenth
Circuit cases are implicated. He will not be instructing
the jury on what law they will apply.
Thank you, Your Honor.
THE COURT: I will say, Mr. Normand -- thank
you -- it strikes the Court as you are arguing that had you
tried to use an expert to proffer the same type of
testimony, that probably he or she would have been --
proffered a witness to offer the same type of testimony
covering the same areas and he or she was not an attorney,
there probably would have been a challenge to them
testifying in the absence of them being an attorney. So
it's kind of a -- there's a catch-22 here.
You didn't understand my point, and I apologize.
When you think about it, you'll see that I'm supporting your
MR. NORMAND: Then I will sit down.
THE COURT: Mr. Brennan.
MR. BRENNAN: I was hoping that he would snatch
defeat from the jaws of victory, Your Honor.
Just a few points back to Dr. Botosan. Yes, there
are two opinions that Dr. Botosan offers. One is the amount
of alleged damages and the other is causation. But here's
the fundamental problem again, that, first, with causation,
the basis for the analysis is on an entirely irrelevant
measure of yardstick. I think that point can be illustrated
by what Mr. Hatch provided to the Court. If I can make
brief reference to the diagram that shows SCO entered a
crisis of May 28th, 2003, I think this will illustrate the
fundamental problem in the methodology offered by Dr.
First of all, according to the diagram that's been
offered, at the start of the day on May 28th, 2003, SCO's
stock price was between ten and I think 10.50 per share. If
that's rounded, say about ten and a quarter. And even
before the alleged slanderous statement had even been
uttered or made or released, SCO's stock prices already
dropped below $8.50.
Then after the alleged statement is made, it
dropped less than the amount that it had already dropped
that day, and the suggestion is made, well, that must
somehow be evidence of what? Not just of a stock price
drop, but that somehow potential licensees out in the market
made a conscious decision premised on any statement by
Novell not to enter into a license agreement with SCO.
That's the fundamental problem.
First of all, there is not a correlation that's
been demonstrated between the stock price and the market.
And, secondly, there's been absolutely no demonstration that
whatever correlation might exist between the stock price and
the market price or performance has anything to do with
respect to predicting whether or not a potential licensee
would have acquired the SCOsource license. There is this
huge gap between the two.
Somehow what Dr. Botosan is seeking to present or
argue is that if I can somehow demonstrate through an event
study some relationship between stock performance and the
market, that I thereby can read on to whether or not a
licensee in the market would decide to buy a license. And
it's already been demonstrated that there is not a reliable
correlation between SCO's stock performance and the market.
That's why, again, we turn to the correlation
coefficient that's even identified in Dr. Botosan's report
as being .14, or 14 percent. In other words, there is only
a potential of a 14-percent chance in looking for a
correlation in these events to get it right. The obvious
converse is there's an 86-percent chance you would get it
And so in the Griffin case that we cited to the
Court in our papers, the court undertook an analysis of
whether or not the statistical evidence that was being
presented to create a correlation met a sufficient threshold
to allow that testimony to be presented to the jury. In
that case, the relationship had a .45, or 45-percent chance
under statistical analysis of predicting a relationship, and
the court rejected that as not sufficient to meet the
gatekeeper function to allow it to go to the jury.
Here we're dealing with a predictability ratio of
only .14, according to Dr. Botosan. And we still have to
jump over that very broad chasm when we don't have a
correlation between stock price and the market to reach the
conclusion that a licensee made a decision as to whether or
not to enter into a license agreement. That is the
fundamental problem with the methodology. It isn't just
weight. There is a fundamental flaw.
And the jury otherwise, without the Court
performing this gatekeeper function, would be exposed to
seeking to make some determination where we have not
established fundamental correlations either between SCO's
price, which is very volatile, unrelated to the market, and
no connection that Dr. Botosan creates or provides in terms
of a decision being made by a potential licensee. All she
does in her report is says, well, whatever SCO's stock is
doing must be somehow a function of what a licensee is
doing. But her report provides no connection. There is no
connective tissue between those two concepts. They are
unrelated. They are not correlated. That's the problem.
In terms of --
THE COURT: Mr. Brennan, let me ask you this. Did
the Griffin case have to do with testimony on causation or
MR. BRENNAN: It had to do with causation. It was
an issue of discrimination and whether or not looking at a
broad scope of employees and hiring decisions, whether there
was a discriminatory animus or decision making based on
THE COURT: All right. Thank you.
MR. BRENNAN: Now, Your Honor, if I might briefly
turn to the other point of the analysis, and that has to do
with the projections regarding damages. Now, again, Dr.
Botosan's projections are a function of some sort of
projection as to what number of potential licensees would
have entered into a SCOsource license, which, again, as I've
already gone through, somehow is supposed to be correlated
to stock price. We've talked about that.
Here's the fundamental problem with the
projections. First of all, if I might borrow Mr. Hatch's
diagram, at least submission to the Court, the estimates
being conservative and Dr. Botosan, not in every instance
but in several instances, relies upon the Deutsche Bank
analysis and projections. Here's the problem. The Deutsche
Bank analysis, which is never analyzed by Dr. Botosan in her
report or testimony, it's just naked numbers presented, what
we can tell from the Deutsche Bank analysis is that it was
looking at potential revenues to SCO from license
agreements. And they had two license agreements to look to.
One was Sun Microsystems and one was Microsoft.
But there's a problem with that and, as we
submitted, even the testimony of SCO's chief executive
officer, the license agreements that SCO did enter into with
Sun Microsystems and did enter into with Microsoft were not
SCOsource license agreements. We've attached his testimony
for the Court. They were not even the sort of license
agreements that are at issue here. They were fundamentally
different licenses than a SCOsource license.
So the Deutsche analysis is not some sort of
measurement or projection as to how SCO would have performed
with the SCOsource licensing program. It's only data points
for license agreements that are not even at issue here. So
the projections are themselves fundamentally flawed. Why is
it more than a weight issue? Because Dr. Botosan engages in
no analysis to determine even what the Deutsche Bank
projections purport to measure.
Now one last point that ties these together. We
did submit this in the papers, but it was not presented in
opposition. One might ask if Novell made a so-called
slanderous statement on May 28th, 2003, and the correlation
that is attempted to be drawn here is that caused a drop in
SCO's stock price and somehow we can bridge the chasm, which
there is no evidence to suggest, or we can go from stock
price to a decision by a potential licensee, one would
expect that if, in fact, SCO had been harmed, that the stock
price would continue to trail down. But exactly the
opposite occurred. In fact, SCO's price rebounded
significantly and remained volatile throughout the period.
That simply demonstrates there is not a correlation.
So in taking just a one-day snippet and trying to
bridge this huge gap and suggest this one day indicates
intent on the part of licensees to resist SCOsource licenses
because of a statement by Novell is belied by SCO's stock
performance, which continued to go up and down and was
extraordinarily dynamic and volatile, uncorrelated to the
market throughout the period of the damage analysis.
So we have these fundamental flaws that, again,
yes, Novell could demonstrate the inadequacy and
incompleteness on cross-examination, but we ought not get to
that point. It's junk science.
Thank you, Your Honor.
Do you have any questions?
THE COURT: I don't, Mr. Brennan. Thank you very
MR. ACKER: Your Honor, let me start with Dr.
Pisano. Mr. Singer's point, I think, the nub here is really
this Yankee study and whether or not Dr. Pisano had any
knowledge about that before he came to his opinion. And
Mr. Singer now is pointing to a fuller explanation of that
study in trying to rehabilitate Dr. Pisano. The fact is Dr.
Pisano came to his opinion with no knowledge of that study,
and he testified to that under oath.
At his deposition he was asked, do you know who
responded, how many, who at the various companies, anything
like that. I don't have details on who responded. He was
asked, do you know anything about what procedures, though,
were employed here. I don't know the specific procedures,
no. Do you know what checks were employed to make sure that
this survey was done on a sound basis, what kind of
procedural mechanisms. I don't have details on that, no.
So the sworn testimony of the expert is I didn't
know anything about this study, but that's what I based my
opinion on. We submit to you that goes beyond simply fodder
for cross-examination and that is an improper method this
Court should not allow to go to the jury.
With respect to Mr. Davis, I want to make a couple
of points. First of all, I didn't hear Mr. Normand point to
a single case from this circuit or any circuit in which a
lawyer was allowed to testify as an expert on a law that
would control the outcome of a case. I would urge the Court
to go back and look at the Specht case because the Tenth
Circuit was extremely clear, and they said, however, when
the purpose of testimony is to direct the jury's
understanding of the legal standards upon which their
verdict must be based, the testimony cannot be allowed. In
no instance can a witness be permitted to define the law of
Mr. Normand in a slight of hand tried to divide up
Mr. Davis's testimony and say one was going to be this
custom and practice testimony. Well, we submit to you what
Mr. Davis has done in his legal career and whether he's ever
seen a contract like this, whether he's ever done a contract
like this is irrelevant. I mean the Court should not permit
him to come in here and say I've been a licensing lawyer for
40 years and I've never seen a contract like this. That's
irrelevant to the fact that there is a contract like this
and this jury is going to have to wrestle with what that
contract means. So I would submit that part of his
testimony is wholly irrelevant.
The second part of his testimony, and I think it's
pretty clear from Mr. Normand's argument that he's saying
he's going to use his knowledge of copyright law and he's
going to tell this jury, based on his knowledge of copyright
law, looking at the exact language of Amendment No. 2, the
UNIX copyrights must have transferred. At base level, that
is what his testimony will be. That's why they want his
testimony, but that is usurping the function of this Court
and we think it's wholly in violation of Specht and Tenth
Circuit law. And they haven't cited a single case to give
this Court comfort that that sort of testimony should be
The cases that they rely on, other than the cases
I distinguished earlier, the patent law cases on invalidity
and noninfringement, that's a wholly different method. That
was where a technical expert is informed by the court as to
what the laws are in infringement, what the laws are on
invalidity, and that expert -- that technical expert takes
that knowledge from the court, that law, and then applies it
to the technical expertise that he or she brings to the
That's not what is going to happen here.
Mr. Davis is going to come in here and look at the jurors
and tell them all about copyright law and tell them why his
understanding of copyright law means that SCO must win. At
base, that is wholly improper testimony. We think it
violates clear Tenth Circuit law and simply should not be
So unless the Court has questions, I will submit
it on that.
THE COURT: I don't, Mr. Acker. Thank you.
Mr. Hatch, Mr. Singer, Mr. Normand, I'll give you
each 30 seconds if you want to stand right there and say
MR. HATCH: Your Honor, real quickly, you know,
Mr. Brennan put up our snapshot, and one of the things he
didn't do, you'll notice that he never gave any other
explanation. He pointed to a couple outliers, beginning of
the stock prices, pretty level, dropped, gave no other
explanation. He then goes into R-Squared, which even the
Griffin case, and I can quote from that, says, we agree that
R-Squared alone cannot determine the validity of the model.
He mixes up concepts with the P-value that's important, and
Dr. Botosan said the P-value shows .21 of one percent chance
that this drop could have been for anything other than this
statement. She says it couldn't have been by chance.
He talked about the stock coming back. What he
doesn't bother to tell the Court is, yeah, it rebounded
because they retracted -- for a period of time they
retracted and said, yeah, it looks like SCO does own the
copyright, and it immediately went up. So if we go -- and
Dr. Botosan deals with each of those points in her report.
But as I listened to Mr. Brennan, all it again
shows me is that there is going to be a strong debate. They
are going to say she was out there on the ledges and being
too aggressive. We're going to say she was way too
conservative. That's a matter for the jury to decide and
that's a factual issue.
Thank you, Your Honor.
THE COURT: Mr. Singer.
MR. SINGER: Your Honor, very briefly, the
comments by Mr. Acker went to one of the three studies that
Mr. Pisano relies upon and I think illustrate that this was
questions -- snippets of testimony from a deposition where
he says, no, I don't know the details of this, but not even
confronting him at the deposition with the document that's
attached to his rebuttal report before the deposition that
lays out it's a thousand respondents, which he did know at
the deposition. There is no question about Yankee being
biased. There is no argument that the questions were
unfair. These are things that mostly go to
THE COURT: Thank you.
Mr. Normand, anything?
MR. NORMAND: Your Honor, two things.
One, although Novell and I continue to disagree
whose burden it was to show an attorney by definition
somehow could not testify as an expert, it's a simple matter
of a jury instruction. Ladies and gentlemen, although this
man is an attorney, he is not telling you the law. I will
tell you the law in the case. That would resolve that
Two, Mr. Acker acknowledges that part of the issue
on remand has to be what copyrights are required. It cannot
be that the only witnesses who are permitted to testify as
to what is required are percipient witnesses who
participated in the negotiations. We could put someone on
who's an engineer at SCO who will say, here's why I think
they are required. Mr. Acker's objection to such testimony
would be, well, he can't tell the jury what the parties
intended. That's not the issue. The issue is the flat
actual question, independent of what the parties may have
intended in using the word, taking the word required, what
is required and what is not. He's not going to be telling
the jurors what the parties intended or how they should
decide what the parties intended.
Thank you, Your Honor.
THE COURT: Counsel, thank you. Your arguments
today have been very helpful to the Court. I appreciate
your brevity and focusing in on those things of most
importance. We'll take a ten-minute recess and then we'll
come back and conduct final pretrial conference.
THE COURT: Counsel, let me deal with a couple of
preliminary matters before we get to the typical final
pretrial conference checklist.
First of all, as you well know, in the trial order
that was submitted to the Court, there is a paragraph that
points out the dispute between the parties over what the
uncontroverted facts are. And today there was a filing from
the defendants requesting this Court to take judicial notice
of prior factual findings, findings of either Judge Kimball
or the Tenth Circuit. I would request from the plaintiffs
that they submit a response to that by Tuesday at five
o'clock and I'll deal with it in an order.
Also, in your trial order you indicate that there
is a dispute between the parties over those things that are
to be decided by the Court and those by the jury. And, to
my knowledge, neither of you have supplied anything to the
Court by way of written memorandum addressing those issues.
I would ask that be submitted to the Court by Tuesday as
well. If either of you wishes to respond to the other side,
I would ask that that be to the Court by Thursday at
I do want to say this. As a general matter, I
want both of you to avoid reference to the prior decision by
Judge Kimball or the Tenth Circuit. And if you have
something that you think needs to be brought to the jury's
attention that makes reference to either of those prior
decisions, I want you to make it known to the Court in
advance. And I want to give the other side an opportunity
to respond to it. I do want you to know, as a general rule,
I'm going to be very hesitant to allow reference to those
things because I believe that it would be confusing to the
jury and also very prejudicial. That is speaking just very
Again, if either of you during the course of the
trial see that you need to, in addressing a witness or
cross-examination of a witness, anticipate making reference
to Judge Kimball's decision or the Tenth Circuit decision, I
want that brought to my attention. We can deal with it in a
side-bar or before the trial begins or after the trial ends
on any given day.
Do any of you have any questions about those
MR. ACKER: No, Your Honor. Thank you.
THE COURT: Let's then go to the typical checklist
that the Court has. First of all, this matter is scheduled
to begin for trial on Monday, March 8th. The Court has
scheduled three weeks, 15 trial days. Is there any reason
why either side believes that three weeks is not going to be
a sufficient amount of time?
MR. HATCH: No, Your Honor.
MR. ACKER: No, Your Honor.
In that regard, we have, between the parties,
agreed to split the time evenly down the middle. I don't
know how the Court would like to handle the keeping of the
time. Would you like the parties to do that?
THE COURT: Yes.
MR. ACKER: So we'll keep each other abreast of
where we think we are.
My understanding is the Court runs its trials from
8:30 to 1:30 with two 15-minute breaks; is that correct?
THE COURT: Roughly.
MR. ACKER: So about four and a half hours of
trial a day. We'll calculate that and divide it amongst
THE COURT: Mr. Acker, I need to ask you, have I
been mispronouncing your name?
MR. ACKER: My German relatives pronounce it Acker
and we in southern California pronounce it Acker, so Acker.
THE COURT: So I have been doing it right?
MR. ACKER: You've been right. They've been
THE COURT: Thank you. I'll take judicial notice
I would ask, counsel, that you be here at eight
o'clock the first morning so we can deal with any
last-minute matters that we need to before we begin jury
I want to stress a couple of things. I do not
like surprises, particularly surprises about major
evidentiary rulings, and so I would ask you to anticipate
those. Bring them to the Court's attention out of the
hearing of the jury whenever possible.
I do like to minimize side-bars. I will indicate
that we have -- just recently had a rather major investment
made in this courtroom's facilities, and we have the ability
to conduct a side-bar without it being overheard by the jury
because we have a white noise system that apparently works
very well. So my hesitance to have side-bars that I've had
in the past is diminished somewhat because we can do it
without the jury hearing everything we're saying. But,
still, I think it's awkward, and I would ask you to try to
anticipate those matters that can be dealt with at breaks,
before and after trial, instead of having to have a side-bar
The Court received the proposed pretrial order
yesterday and will plan to sign it today.
I believe we have now dealt with all the motions
in limine. There are the three Daubert motions we've just
heard argument on that remain. We'll try to get you an
order on those as soon as we can. I'm not aware of any
other motions -- I guess technically we do have the motion
by the defendant that I referred to a moment ago asking the
Court to take judicial notice of certain facts. Other than
that, I'm not aware of anything else.
Is there something, Mr. Singer? Is that what you
were going to address?
MR. SINGER: I think in addition to the judicial
notice motion, there is one motion on the motions in limine
which was taken under advisement?
THE COURT: Correct.
MR. SINGER: That was our motion regarding the
commentary on the outside legal sources that are following
THE COURT: That I think we'll just have to deal
with during the course of trial. Is that the one?
MR. SINGER: That's the one which we reserved on.
And I think our interest there is simply that unless perhaps
it's cleared with the Court in advance, we don't see there
to be a need to make known to the jury the name of one of
these Web sites which are devoted to following the case,
that probably everything can be said substantively without
mentioning the name of the particular Web sites in question.
THE COURT: The Court will -- is your concern --
tell me your concern.
MR. SINGER: Our concern is that by mentioning,
let's say, Groklaw, which is a site following and
criticizing SCO's position in this case, it makes it that
much easier -- despite the instructions that the jury will
receive not to do any outside investigation, that it makes
it more tempting and easier to go and put Groklaw into a Web
browser and come upon that site. We don't think we need to
mention the name of Groklaw or something like that to make
any arguments that are relevant in this trial.
THE COURT: I would agree. I do want there to be
no temptation for these jurors to be doing research on their
own. You are right, Mr. Singer, the Court may be as
specific as possible, but it doesn't always work. I will
just briefly recount I had one case involving a lawsuit
against Wal-Mart, a major lawsuit, took a long time. The
reason I remember this is because it happened in September
of 2001. And at the end of the trial it was revealed to the
Court that a juror was going home at night, despite the
instructions that were repeated most days at trial, and was
getting on the Internet and investigating other lawsuits
against Wal-Mart for similar conduct. I ended up having to
declare a mistrial, which was most unfortunate because
thereafter they declared bankruptcy. It wasn't Wal-Mart, it
was Kmart. They declared bankruptcy. It was a horrific
experience for everybody.
So I am very sensitive to that, and I do not want
to do anything that would make it any easier for a juror in
a three-week trial becoming really interested and trying to
find out something on their own. So I would agree with
that, Mr. Singer. Thank you.
MR. SINGER: Thank you, Your Honor. We intend to
tell our witnesses to not inadvertently or otherwise make
reference to those sites in their testimony.
THE COURT: All right. Mr. Acker, I would ask
that you instruct your witnesses as well.
MR. ACKER: We will, Your Honor, with just one
caveat, and we can bring this to the Court's attention
during the course of trial. As the Court pointed out in its
ruling, there are issues, with respect to damages and what
was the causation of any reluctance on behalf of the
licensee to take a license, that do involve commentary out
there on these Web sites. So we can sanitize those
documents and we can sanitize the way we ask questions, but
we think that line of inquiry should be allowed. We're
happy to bring that to the Court's attention before we dive
THE COURT: Well, I hear nothing from Mr. Singer
that would indicate he's trying to make this very broad
ruling and you can't make reference to those sources, at
least not the specifics of the sources. In other words, if
you can ask about a Web site that may contain information
without showing the Web site's address or something that
would make it easier for the jury, the Court would
MR. ACKER: I understand. Thank you.
THE COURT: Those facts that have been stipulated
to that are reflected in the pretrial order the Court does
intend to read to the jury at the outset of the case.
I know that you are concerned about the jury pool,
and we've instructed our office here to give us as many
jurors as we can seat in this courtroom to select from.
How many would that be, Sandy?
THE CLERK: 56 or 54.
THE COURT: So that would be how many jurors we
hope will be here. There are always a couple that don't
Do you want an alternate in this case, counsel?
MR. ACKER: I understand the Court will seat 12
and 12 will deliberate?
THE COURT: Yes.
MR. ACKER: Yes, we would ask for one.
THE COURT: Do you understand that under local
rule we can have as few as ten?
MR. ACKER: I'm aware of that.
THE COURT: You still want one?
MR. ACKER: Yes.
MR. HATCH: I agree, Your Honor.
THE COURT: All right. We'll plan to have one
Let me instruct you on that right now. It would
be my intention not to tell the jurors who the alternate is
because I want us to have some flexibility. During the
course of any trial, but in particular a three-week trial,
it may become evident that one of the jurors has lost
interest and is not paying attention. I would like the
opportunity, with your agreement, to dismiss any juror that
we think may be not appropriately conducting themselves
during the course of the trial.
MR. ACKER: That's fine, as long as there is an
agreement between the parties at the time with respect to --
THE COURT: That's what the Court would rely on.
At the end of the trial, I would suggest that though juror
13 was the alternate, would you not both agree that juror
number two ought to go. If you both agree with me, then I
will do that. Otherwise, it will be the number 13 juror.
MR. HATCH: As long as we have an opportunity to
talk about it at the end.
THE COURT: We certainly would, yes. But I don't
want us or anyone else to intimate the juror seated on the
bottom of that side is the alternate juror from the
beginning so they are paying attention thinking they will
MR. HATCH: They will already feel bad they don't
have nice little chairs.
THE COURT: They will. We'll give them one. We
Let me ask you, as to your expert witnesses,
counsel, I appreciate the fact that you understand I request
a vitae that will be attached and will be submitted to the
jury, and I would request that when you on direct set the
qualifications for the witness, that you keep it to five or
ten minutes, that you do not go into lengthy, detailed
qualifications because the jurors will have the vitae that
will be submitted to them.
I believe you had discussions with Ms. Malley
about your exhibit lists. If I may --
MR. HATCH: Your Honor, just on the vitae
question, you know, I mean do you have any limitations on
what is included in that? Do you just want the ones that
are submitted as part of the reports?
THE COURT: I don't want the reports submitted. I
want the vitae that would have -- I've never had that
question asked before. I think it's pretty much understood
what a vitae consists of.
MR. HATCH: I understand. The vitae should be
probably the one that was submitted with the report,
THE COURT: Unless I hear otherwise, I would --
Mr. Hatch, don't speak over me. I would say the answer to
that is yes unless I hear objection from the other side.
MR. HATCH: Thank you.
THE COURT: Mr. Acker, do you object?
MR. ACKER: No, Your Honor.
THE COURT: The exhibit list, any questions about
the exhibit lists?
MR. SINGER: No, Your Honor. The parties are
working out a process of exchanging objections over the next
few days and resolving as many of those issues as possible.
THE COURT: All right. Thank you.
Trial briefs will be due on this coming Monday.
You already submitted your proposed voir dire questions. I
understood, based on a conversation that one of you had with
my law clerk, that you were contemplating perhaps suggesting
or requesting an agreement between you as to what questions
ought to be asked of the jury. Is there anything further on
MR. ACKER: We can talk during the week and over
the next few days and see if we can come to an agreement
between the two competing questions and see if we have
MR. SINGER: We'll try our best to reach
THE COURT: If not, I will just make my best
judgment of what ought to be asked. Please understand that
after I've asked the questions, I will always have a
side-bar. If you think there is something that needs to be
asked that I did not, I will give you the opportunity to
make that argument.
The one thing that I do want to add here, counsel,
I believe it's been requested of you that you submit your
exhibits to me in a DVD form. I like to put them on my
computer so I have the opportunity to refer to them, even if
you are not. So if you would do that and get them to the
Court as soon as you can.
How are you doing on jury instructions?
MR. ACKER: Would you like hard copy as well for
Your Honor or just the electronic?
THE COURT: Just the electronic.
MR. ACKER: On jury instructions we've exchanged.
We're in the meet and confer process. We hope to have to
the Court on Monday those that are agreed upon and those
which there is dispute, which we'll give the Court competing
THE COURT: All right.
MR. ACKER: Does the Court want -- I've seen the
Court's standard instructions. My operating assumption was
that you just want the substantive instructions in addition
to standard or do you want a complete set that includes your
standard instructions as well from us?
THE COURT: Just give us those substantive ones
that you agree on and those you disagree on and we'll
incorporate our own standard, okay?
MR. ACKER: Very well.
THE COURT: You say we'll have that by Monday, Mr.
MR. ACKER: Yes, Your Honor.
THE COURT: My understanding, you both have your
evidence experts coming here on Friday to go through our
system. Do you have any other special needs that we need to
be aware of, counsel?
MR. SINGER: Does the Court have any objection to
the use of a laptop at counsel table from time to time
during the trial?
THE COURT: No. Apparently one of you requested
that we have a screen that would show the audience, if you
will, what is being displayed. I will not permit that. If
I may just generally say, this trial has the potential of
becoming a little bit of a circus, and I will do anything I
can to avoid that. And I think that we've managed to get by
for a long time without having those types of demonstrations
made to those sitting in the courtroom, and I would avoid
that in this case unless there is a really compelling reason
MR. ACKER: I understand, Your Honor.
Just on experts, again, I assume there's a
standing rule on witnesses that are not experts. Will the
Court permit experts to sit and listen to other witnesses'
THE COURT: Yes.
MR. ACKER: There is a standing order as to any
other percipient witness?
THE COURT: Traditionally I would ask the first
day do either of you want to invoke the exclusionary rule.
Always they do, and the witnesses are excluded. I'll assume
you are invoking it by asking the question, and so the
exclusionary rule will apply and no witness can be in the
courtroom until he or she is called to testify.
MR. ACKER: Very well, Your Honor.
THE COURT: Counsel, in the trial order that you
would have received, there is a section entitled courtroom
conduct. And it's just a brief listing of things that the
Court would like you to comply with. I would encourage all
of you to read it between now and the 8th so you remind
yourself of those little peculiarities that I may have in
the way I conduct the trials.
Counsel, that is my checklist. Do you have
MR. ACKER: I have been briefed a bit on your voir
dire procedures, Your Honor. If I could tell you what I
understand and then you correct me where I've got it wrong.
THE COURT: Why don't you just let me tell
MR. ACKER: That will be great.
THE COURT: Based on what you have submitted, I
will -- let me first back up. We do have a questionnaire
that we give the potential jurors that they fill out before
they come down here. If you don't have a copy of that,
please get it from Ms. Malley before you leave here today.
Basically, after a few preliminary matters, we'll
have the jurors go one by one and answer that questionnaire.
It just goes to the issues about their employment, their
kids, what they like to read, their hobbies, and things like
that. After that I then will ask a series of questions. I
will rely on primarily on what you have submitted, and I
will try to include those that I think appropriately should
After I have done that, I will ask a series of
questions -- let me back up. All those are answered here in
the courtroom in the presence of everybody.
Towards the end of that process, I then ask a
series of questions that I don't want the jurors to respond
to here. They deal with matters of prejudice, or something
else that I don't want them to be expounding on in front of
After I've asked those questions, I will then have
a side-bar, give you the opportunity to suggest other
questions, generally of a personal nature. We'll then bring
the jurors that want to answer the personal questions back
into the conference room behind me here with each of you.
We'll have them come in one at a time, answer the questions.
I'll give you the opportunity to ask them what you think
needs to be asked.
After we've done that, I will then tell you those
jurors I intend to dismiss for cause. We'll then come back
here and you'll exercise your three preemptories.
Does that answer your question?
MR. ACKER: It does. Just a couple of questions,
Your Honor. I understand that the preemptory strikes are
blind strikes, in other words, both sides will strike at the
same time, we'll excuse those jurors and move on to the next
round, as opposed to plaintiffs striking, we see who they
struck and then we strike?
THE COURT: The second is what we do. We'll have
a sheet of paper with all the jurors on it and it will
indicate those that are dismissed for cause based on what
happens back behind us. We'll then bring it out and we'll
have three preemptories exercised. Normally I think
plaintiff goes first. They will strike it. Ms. Malley will
then show you that sheet, you will see who they struck, you
will do yours, and just go back until the three have been
MR. ACKER: Then the strikes, are we allowed to
strike into the panel or just who is in the box with the
THE COURT: Anybody in the courtroom.
MR. ACKER: I assume they will be in order so we
will know who's coming up next in the box?
THE COURT: Once people come in here, once the 50
of them come in here, they don't go out except for the break
we have when we bring the jurors in one at a time back here.
There is nothing in the box.
Does that answer your question?
MR. ACKER: I understand.
THE COURT: Mr. Hatch.
MR. HATCH: Your Honor, I would assume at some
point you'll ask us to introduce ourselves and our client?
THE COURT: That all happens in the preliminaries
before we begin the jury selection.
MR. HATCH: One question, you know, my client is
in bankruptcy, and we will have the trustee, Judge Cahn,
here or one of his representatives I assume at the beginning
of the trial and probably throughout. I don't have any
intention to introduce him. And it seems to me, I don't see
any reason why the bankruptcy should be mentioned at any
point during the proceedings, unless you -- I don't know if
you ever intend to reference it. It maybe seems like that
ought to be -- if you have some reason to be, you ought to
bring it to us in advance.
THE COURT: I would agree.
Mr. Acker, think about it. If you contemplate
that you intend to, I want you to bring it to my attention
before the -- during the break, the morning of the trial,
whatever the case may be, whenever that may happen. All
MR. ACKER: Very well.
THE COURT: I would agree with you, Mr. Hatch, do
not introduce the bankruptcy trustee.
MR. HATCH: I'm happy to introduce him to Your
Honor, but we'll do that early on.
THE COURT: That's fine.
Before we begin questioning the jurors, I will
have, as Mr. Hatch indicated, an introduction by you and all
those who will be sitting at your tables. I will also ask
you to identify those individuals that you intend to call as
witnesses. I would ask that you would just, in addition to
their name, have some identifying characteristics, something
as simple as who they work for, or where they live, anything
like that because we do want to briefly provide some context
for the potential jurors because the whole purpose of this
is to see whether or not any of them know those individuals
you intend to call as witnesses.
MR. SINGER: Your Honor, I just wanted to note
that Mr. Jacobs and I had discussed before trial a few
things which we reached agreement on, people who may be with
us during the jury selection process who would not be
identified. I think one on each side.
THE COURT: Jury selection experts?
MR. SINGER: Yes, Your Honor.
MR. HATCH: My intention would be we would
introduce the lawyers and the client and just ignore them,
if that's okay.
THE COURT: I would rather they at least be
introduced, but just give a name.
MR. HATCH: Just give a name?
THE COURT: Just a name.
The reason why I don't want some mysterious person
sitting at the table and the jurors wondering why was
everybody else introduced except for him or her, unduly
speculating as to say what their role in this thing is.
MR. BRENNAN: Yes, thank you, Your Honor.
We are mindful of the rulings on the remaining
motions in limine this morning. There are, we think, some
important issues regarding the application and scope, for
example, First Amendment issues and privileges. We believe
it might be helpful to the Court, if the Court were to agree
with us, to have a hearing at some juncture between now and
the start of trial to more further explore those primarily
because of our view of the nature of the issues and the need
for the Court to make legal decisions regarding the scope
and application of those issues.
So I wanted to at least stand and see if that
might be something that we could schedule with the Court so
we could have a full presentation on these critical First
Amendment issues we've been grasping.
THE COURT: Mr. Brennan, the dilemma is that you
were given your best shot to provide case law. What I need
is case law. I don't need argument. I need case law. If
you can come up with some case law between now and the time
that this Court instructs the jury, then I would want it.
But other than that, I see no reason to have a
separate hearing on that issue. I think I will be curious
to see what jury instructions you come up with. And we'll
be doing the work we need to during the course of the trial
to help make those decisions. But let's just play that one
by ear. I don't want between now and the trial, because I
will have a very busy week next week, but until the Court
actually instructs the jury, I think this issue can wait.
MR. BRENNAN: I appreciate that. Perhaps stated
another way, although I may anticipate the Court's response,
is whether, in essence -- some of these issues, in essence,
ought to be bifurcated. I'm not suggesting that we continue
the trial for that purpose, but whether the Court believes
that in addition to legal authorities, there would need to
be some sort of evidentiary presentation to the Court so it
can make its determination?
THE COURT: On the question about the First
Amendment? Well, if you want to submit a motion to that
end, I would prefer that we deal with it on paper.
MR. BRENNAN: Thank you, Your Honor. I
understand. Appreciate the instruction.
THE COURT: If you intend to, then do it --
MR. BRENNAN: If we do it by Tuesday?
THE COURT: That would be very helpful.
MR. BRENNAN: Thank you, Your Honor. Appreciate
THE COURT: Again, counsel, if you, Mr. Singer,
Mr. Hatch, if you would respond by Thursday.
Do you see a need for a hearing on the
MR. SINGER: No, Your Honor, we don't. We think
that the motions in limine briefed the issues. We'll
continue to work on the jury instructions. We think this is
appropriately dealt with in the framing of jury instructions
and verdict form.
THE COURT: Again, if any of you come up with any
additional law, you know, I would want it not only by next
Tuesday, but during the course of the trial if something
should come to your attention. It really is, to me, a
purely legal issue and it's a very intriguing issue, and all
the help you can give the Court would be appreciated.
All right. Mr. Singer, do you have anything else?
MR. SINGER: I think we may have one or two other
issues that Mr. Hatch was going to address.
THE COURT: Go ahead, Mr. Hatch, as long as you
don't talk when I'm talking. All right.
MR. HATCH: One is more administerial, opening
statements. I don't know if you want to address how long
each party will take. We also have an issue that we would
like during the course of ours, if it would be acceptable to
Your Honor, given the type of case, to be able to use two
different lawyers presenting our opening statement.
THE COURT: Because of the nature of the case, I
will allow two attorneys both for openings and closings on
either side. All right.
MR. HATCH: Okay. Do you have any care about the
THE COURT: Well, I do, but tell me what you are
thinking. Tell me how much I have to care.
MR. HATCH: Well, I recall a conversation like
this with you once before, but we would suggest an hour each
MR. ACKER: An hour is fine.
THE COURT: Let's plan on no more than an hour for
openings. I think it becomes more interesting when it comes
to the question of how long for closings. But we'll deal
with that at the end of the three weeks.
MR. HATCH: The other issue, there are some
witnesses that we would -- we've started discussions with
Novell. There are some issues that we believe are under
their control that we would like to be able to call in our
case in chief, particularly in the first week, so that we
don't have to read depositions and then they provide the
person live during the course of their case. I don't know
how Your Honor would prefer to handle that.
THE COURT: My preference is that you just work
with each other and show one another respect -- professional
respect and allow that to happen. I think it would be a
disadvantage to the jury for it to happen in the way that
you just described. So I would request that you try to work
that out. If you can't, then bring it to my attention, and
then I will order if I must.
MR. HATCH: Thank you, Your Honor.
I think we've handled everything else, Your Honor.
THE COURT: All right.
Mr. Acker, Mr. Brennan, do you have anything else?
MR. ACKER: Your Honor, given the procedure for
jury selection, can we anticipate openings not taking place
on the 8th and beginning on the 9th?
THE COURT: You know, I really don't know how well
this will go. This is not a typical trial in one respect,
and that is this case has such a long history and the
greatest concern I'm going to have is whether or not we find
jurors with some knowledge of the case. That to me is the
greatest dilemma. If we end up with a whole bunch of people
standing up and saying they want to come back and talk with
us, that takes a lot of time. But I would ask that you be
prepared in case we somehow whip through this thing and we
finish at 11:30, and that would give us two more hours and I
would like to not waste that time.
I need you to know that I am always very, very
sensitive to the jury time concerns. And I don't want us to
waste time. I don't want us to have the jury going home
early some days because a witness for some reason is not
available and stuff like that. If we're going to impose
three weeks on their lives, I want us to be as efficient as
To be specific, if we can, I would like to do
openings Monday. If, however, it's obvious that only one of
you can do it, then I probably will wait and let you both do
it at the same time. I think that's the only fair thing to
MR. ACKER: Appreciate that, Your Honor. We don't
have anything else.
THE COURT: Counsel, I want to thank you because
of the level of cooperation that you have demonstrated to
this point. I think it was very wise for you to, for
example, have the motion in limine deadline when it was
instead of what would have been next Monday, which would
have been a nightmare. I hope you will continue to show
that level of professionalism and cooperation throughout the
course of this trial. And, again, I do want to thank you
for that which you have displayed to this point.
If there is nothing else, we'll be in recess until
eight o'clock on the 8th.
(Whereupon, the proceeding was concluded.)
C E R T I F I C A T E
I hereby certify that the foregoing matter is
transcribed from the stenographic notes taken by me and is a
true and accurate transcription of the same.
PATTI WALKER, CSR-RPR-CP DATED:
Official Court Reporter
Salt Lake City, Utah [zip]