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SCO v. Novell Trial Transcripts, as text -- Day 1, Jury Selection and Instructions - Updated 3Xs
Thursday, July 22 2010 @ 03:55 AM EDT

Isn't it lovely to have the daily transcripts from the SCO v. Novell trial? We're working hard to prepare them all for you as text. This is the first one, from the first day of the trial that began on Monday, March 8, 2010. We'll work sequentially, day by day. Here's the PDF, so you can check any details that intrigue you. I thought I'd share with you my impressions of opening day. I want to explain a few things.

This is technically not the trial itself, but jury selection and instructions to the jury from the judge, the Hon. Ted Stewart. The actual trial didn't start until the following day.

If SCO was hoping for a jury that was tech-challenged, they certainly did not get a jury pool like that. And the number of potential jurors who knew about Linux, had friends or relatives that used it, or who used it themselves was strikingly high. Either Utah loves freedom or someone has been seriously underestimating how many people in the U.S. use Linux. Maybe a little of both. Judge Stewart told SCO that he wasn't going to remove people from the jury just because they knew what Linux was or used it, but a couple of them got weeded out for other reasons.

The day begins with some initial judge/lawyer brainstorming, and then the jury pool is brought in, all 52 of them, and the process begins unfolding. The clerk was expecting 55, but there are always a few that don't show up due to illness or unforeseen occurrences. Judge Stewart tells them how grateful everyone is that they are willing to serve. He tells them that juries are necessary for the legal system in the US to work:

If we did not have individuals such as you who are willing to take your time to be here to allow us to select a jury, and those of you 13 in number who will ultimately be asked to serve as jurors in this case, if they were not willing to serve, then our entire judicial system would collapse. And if we did not have an operating judicial system in this country, we would not have a country.
That's true, by the way, not hyperbole. Juries do play a vital role. And the judge tells them that they'll get out usually by about 1:30 in the afternoon, so they can serve without it being unduly a hardship. So then each one tells a little bit about him or herself, answering a list of questions from the court. And the judge and the lawyers on both sides are listening and observing carefully. At least one jury consultant is present. They have to get from 52 down to 13.

They each, one by one, tell what kinds of books and magazines they like, what their hobbies are, whether they have family or friends who are lawyers or in the legal field. Prospective juror 3 says one of her hobbies is computers and she reads a lot of computer magazines. She works in a library.

If SCO was counting on a jury of ill-educated old fogies, that didn't happen at all. Several are young adults, still in college or working toward an advanced degree. One prospective juror is older, with grown middle-aged children and he has a masters degree. Another has a Phd. Another says her hobby is "researching any topic that comes to interest" her. Another is an engineer. Another says he enjoys technology type things, and he looks forward to serving on the jury. One says her hobbies are football and being a mom. Another says he manages a nonprofit group of jugglers as his hobby. "An odd club to belong to, but it's interesting," he says. Lots of outdoors-y hobbies. These are endearing folks, a broad variety of types. The juggler manager has an MBA. Another is a landscape architect. Another sells construction equipment. Another has a tree farm. One is an IT consultant. He likes to read computer magazines too. Another likes to read classical literature and both Smithsonian and National Geographic magazine. Another does welding sculpture. One's a paralegal. Another has a son who writes software and is a student. Another's a disabled veteran. Some are home-grown Utahns. Lots are not.

They have to tell what their spouses or ex spouses do for a living, too, and one says he doesn't know what his ex does, and he doesn't want to know what she is doing. It made me smile.

After they each answer the written questions, the voir dire begins, with the judge asking them questions. He first wants to know if serving on a jury for a 15-day trial will be a hardship for anyone. Several stand up, indicating it would be. One is about to give birth, and she can't drive herself to court, because she can't fit behind the wheel any more.

After each explains why it would be a hardship, the judge asks any to stand up if they have heard of the SCO-Novell case. Then he asks each of them what they know. But he does it one by one, away from the rest. I think you can figure out why, so that the entire jury pool isn't contaminated by whatever one or two of them read or heard. Your goal is to find people who are not biased and who don't have an opinion already.

Next they read off the names of the lawyers and witnesses that will be called by SCO, and each prospective juror is supposed to tell if they know them. Again, the purpose of that is obvious. You don't want Darl's family members or best friend on the jury. Only one prospective juror knows any of SCO's witnesses, having been in the same ward as Ryan Tibbitts.

Novell then lists their witnesses and lawyers. Novell's CFO was at the trial, sitting with the lawyers. Maybe we'll find out in later transcripts why. And some witnesses listed never did show up at the trial.

Then the jurors were asked if they or any family members were computer programmers or employed by a computer company. Several respond. One has an uncle who works for Microsoft. Another has relatives who worked for Novell.

Did they know what Linux is? Some did. One built his own computer and put Linux on it. Another tried to do that, but it didn't work out well. Some heard of it, or knew people who used it, or in their employment other used it. Then this:

JUROR NO. 21: Juror 21, I have done some pearl scripting in Linux.

THE COURT: You've done some what?

JUROR NO. 21: Pearl scripting. It's a program language primarily on Linux.

I loved that, "You've done some what?" Another juror says her family uses Linux:
JUROR NO. 26: Juror number 26. I personally do not know a lot about Linux, but by husband and my sons do. We have approximately ten to 15 computers in our home, half of which are Linux based and half of which are Windows based, or others. I look at my book shelves and I see Linux, Linux, Linux.

THE COURT: Thank you.

JUROR NO. 27: Juror number 27. Both of my parents use Linux a lot, but they are working engineers.

THE COURT: You don't have any personal familiarity with it, though?

JUROR NO. 27: No.

Mom, dad. What happened? Kidding. Not everyone even cares about computers. But seriously, doesn't this surprise you a little bit? It makes me want to visit Utah.

Another prospective juror had used Linux programs, and another was a programmer:

JUROR NO. 28: Juror number 28. I have used multiple Linux programs in my field. I haven't currently used them for probably the past five or six years.

THE COURT: All right. Thank you.

JUROR NO. 41: Juror 41. I have both used and built software for Linux distributions over the past 15 years.

THE COURT: Thank you.

JUROR NO. 44: Juror 44. I've heard of it in passing. Just that it's another option besides Windows. I thought it was a free operating system.

THE COURT: Thank you.

JUROR NO. 46: Juror 46. I haven't personally used it, but I have a lot of friends who are big fans of Linux.

THE COURT: Thank you.

See what I mean? How about Unix, anyone use that? The pearl scripter had. No one else.

Finally, the judge and the lawyers question the prospective jurors who said they'd heard of the case. The amount of awareness of the case is mighty slim, but one juror suddenly realizes that Darl McBride is a neighbor, having recognized Darl's wife in the courtroom. The McBride house was for sale, we learn, and there was some talk in the neighborhood that things were getting tough. The juror thinks she can be fair, but she expressed it will feel awkward. Mrs. McBride saw her in the group, and the juror sensed she wasn't happy to see her there. The judge decides to strike her from the jury along with the pregnant woman and some in school, anyone who would suffer from being on the jury.

The judge says he isn't going to remove from the pool a juror just because they use Linux after SCO's Brent Hatch begins in the confab with the lawyers and the judge to discuss who should get axed, and he seems to find Linux use a problem. And there are a couple of prospective jurors who had read a little about the case. One is mentioned by SCO, and there is discussion about him reading a little about the case on Wikipedia. Apparently he didn't read much, because he says the judge's brief description of the case was more illuminating than what he'd read. He didn't read Groklaw, I gather, from this remark from Brennan:

MR. BRENNAN: He also said he learned more about the case in the Court's limited introduction than he did in any article that he read. Nothing that the Court disclosed today would indicate a prejudice or an interest one way or another, it was a neutral description, and he said he learned more that way.

I do think that he didn't read any of the blogs or other sites that are following the case that may have said something -- I'll use the term more insightful or more weighted on one side or the other. Wikipedia material has never been cited as a site.

So they keep him. SCO's Singer lodges an objection, which is noted. After the judge strikes those he picks, then the lawyers get to strike without having to give a reason, and then the jury is formed, 13 who have survived the pruning.

But on this day, you also see a lot of housekeeping, which is normal at the start of a trial. The parties, with the judge making decisions one by one, present him with various questions about what to do about various issues. One here was how to handle it that one witness, Jack Messman, wouldn't be available until late in the trial. SCO, as the plaintiff, would go first, presenting its witnesses, but what about Messman, who wouldn't be in Utah until during Novell's side? They wanted him early. Should they play video of his deposition, then do live questioning when he arrives? That would mean interrupting Novell's flow of witnesses, and it's not ideal from SCO's point of view, but Messman can't get there sooner, so it is what it is.

Another issue was how to handle evidence that speaks to the various issues that the parties agreed the judge would decide, not the jury. Should the jury hear everything on those issues too? Or just the parts that they would decide? Should they be told, alternatively, that they'd hear things that they wouldn't be deciding? The judge finally decided on the latter, after his law clerk emailed him the suggestion and it matched Novell's Sterling Brennan's.

There is also a dispute between the parties as to whether they can mention Novell registering copyrights in opening remarks. You will see mention of something called the Noerr-Pennington doctrine, and here's what that is, as explained by LectLaw:

In general, an effort to influence the exercise of government power, even for the purpose of gaining an anticompetitive advantage, does not create liability under the antitrust laws. In Noerr, the Supreme Court held immune from antitrust liability a combination of rail freight interests which was formed in order to have legislation passed that would grant the members of the combination a competitive advantage over truckers. Noerr, 365 U.S. at 145. The Supreme Court has read Noerr broadly: "Noerr shields from the Sherman Act a concerted effort to influence public officials regardless of intent or purpose." Pennington, 381 U.S. at 670. "Joint efforts to influence public officials do not violate the antitrust laws even though intended to eliminate competition." Id. The Supreme Court has applied the Noerr-Pennington doctrine to courts and administrative agencies. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510-11 (1972) (California Transport). The Noerr-Pennington doctrine thus protects those who attempt to use the power of government organs, including the judiciary, to further private ends.

There is an important exception: the Noerr-Pennington doctrine does not protect litigation from suit under the antitrust laws if the litigation is a "sham." The Supreme Court in Noerr recognized that if an action "ostensibly directed toward influencing governmental action, is a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor [then] the application of the Sherman Act would be justified." Noerr, 365 U.S. at 144. See also California Transport, 404 U.S. at 511-16 (remanding for determination of whether the sham exception to the general immunity from the antitrust laws applied).

Intriguing possibilities, wouldn't you say? At the trial, they were not talking about Microsoft funding bogus lawsuits to interfere with Linux, though. It was in the context of whether, as SCO was claiming, Novell committed slander of title by applying for copyright registration at the US Copyright Office. The idea of the doctrine, as the American Antitrust Institute points out is that you should be able to petition your government without getting sued. SCO wanted the jury to hear about it, in the context of filing in bad faith, which it viewed as falling within the exceptions to the doctrine.

So the discussions are all about what they can and can't show and tell to the jury in opening statements by the lawyers, and you can see the negotiations as they unfold, with one party agreeing as long as they can do the same thing, and such. Novell says SCO can use a Wall Street Journal article in SCO's opening that it wants to use, so long as Novell can use articles too. But SCO's Stuart Singer tells the court that one article Novell wants to use is the one that said SCO was the most hated company in tech, and SCO doesn't want them to use that:

MR. SINGER: Your Honor, for certain documents, we wouldn't have an objection. The Wall Street Journal, we think, is one thing. But the article which Novell plans to use in opening, which we objected to, says SCO, our client, is the most hated company in tech. And if the actual document were to be admitted into evidence, on the first page it has prejudicial statements such as they -- referring to SCO -- are a cornered rat, and I think they have rabies to boot. So that, we think, is totally improper to go before the jury.

THE COURT: Counsel, the Court is not going to allow you to use any exhibit in an opening statement that is not going to be clearly admissible and the other side has agreed to it. So until you can get an agreement on it, it will not be permitted in opening.

MR. SINGER: We understand both of these, then, will not be.

SCO was willing to drop its Wall St. Journal article, in other words, to keep the most-hated-cornered-rat article away from the jury in Novell's opening. Mr. Singer is nobody's fool. And of course, neither is Judge Stewart. Judges know that parties try to tilt things their way, detail by detail, and the judge's job is to prevent that, to keep things fair. It might seem that these are small things, but in a trial, small details are sometimes the very thing that persuades a jury.

The jury is sworn in. One frustrating thing is that we don't get to know which of the prospective jurors made it. We know some that didn't, but the ones that survived the pruning process are given new numbers, without letting us know at home who is who. You'd have to have been there. So that was my disappointment from this day. Here's the list of those we know didn't make it to the jury: jurors number 2, 4, 10, 11, 15, 17, 18, 21, 22, 26, 30, 31, 34, 37, 38, 41 and 46, all struck for cause. What's not completely clear is which ones the lawyers struck. They each got three. We know the ones specifically mentioned in the transcript, but there are many blanks. I piece all the hints together and I think number 36 made it. But I can't tell for sure on any others.

Juror 41 is one of the Linux people struck. And 21 was our perl coder, but he was also in a hardship situation, so he wasn't so keen on serving, and they let him go. He also had relatives who had worked at Novell and left "under circumstances that left them unhappy". Prospective juror number 15 had a paralegal sister, but that isn't why she wasn't chosen. She worked in a school setting and she was worried about missing classes, as she was the only one who knew how to teach that particular computer class. 26 was the one whose husband and sons used Linux, and that was the one prospective juror who got the axe because of it, because there was a worry by everyone but Novell that she might talk about the case or be influenced about the case by family members, particularly in that they all seemed to work together in business and were therefore together a lot. I gather the worry was that the family members who loved Linux wouldn't be able to resist talking to her about it, once they learned what case she was assigned to. And that's probably true.

The juror who knew Ryan Tibbitts, SCO's general counsel, because of being in the same ward, worried Novell:

THE COURT: Is there anyone else that you want dismissed for cause?

MR. BRENNAN: I would like to talk about juror number 22, Your Honor.

THE COURT: This is the lady who knows Mr. Tibbetts from 20 years ago.

MR. TIBBETTS: Do you want me to step out?

MR. BRENNAN: No, Ryan. My view of that is, from my own experience in the LDS culture, when people are in the same ward, they do form a unique and special relationship. They may not be close personal friends, but there's a tie that develops. And I think that presents an awkwardness of its own sorts.

THE COURT: Mr. Hatch, do you wish to respond?

MR. HATCH: I would say ten years ago, that's sometime ago.

THE COURT: I think it's best that we dismiss juror number 22 for cause, then. The reason why, I don't want the possibility that after she serves, it doesn't go well for Mr. Tibbetts' client, they met on the street, she's worried what happens if I see him. That's something we don't need to have.

The woman who recognized Mrs. McBride is let go too, for the same reason presumably. And so it went.

And then when all the decisions are made, the judge gives the new jurors their instructions, including this significant bit:

This is a civil case. Plaintiff has the burden of proving its case by what is called the preponderance of the evidence. That means plaintiff has to produce evidence which, considered in the light of all the facts, leads you to believe that what plaintiff claims is more likely true than not. To put it differently, if you were to put plaintiff's and defendant's evidence on opposite sides of the scales, plaintiff would have to make the scales tip somewhat on its side. If plaintiff fails to meet this burden, the verdict must be for defendant.
And as we know, that is exactly what happened.

Keep in mind that the PDFs have line numbers, which we've removed for readability, particularly for those dependent on screen readers. But eventually we will try to produce line numbered versions as well.

Update: Using some geek fu, which I would rather not explain since it depends a little on cluelessness on the part of others which is sometimes helpful for geek fu, I now believe the final jury, was 1, 3, 6, 8, 9, 14, 19, 20, 23, 24, 25, 27, 29.

Update 2: Here's the text version of the transcript with line numbers preserved.

Update 3: Groklaw member Webster sent me something interesting. He drew up a sample [PDF] the kinds of things a lawyer is writing on his pad -- or with Big Law on his form -- as each juror is speaking and answering questions. Plaintiff's symbol in legal stuff is pi; the defendant's is delta, so as you go through this sample, you'll see those symbols, one or the other, for each juror, along with notes. One of the things the lawyers are tracking is whether they think the prospective juror would be more likely to lean one way or the other. Sometimes they hire specialists who do nothing but try to pick the very best jury from the standpoint of the client. I gather from the sample that lawyers' handwriting is on a par with doctors'.

********************************************

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

_______________

THE SCO GROUP, INC., a Delaware
corporation,

Plaintiff,

vs.

NOVELL, INC., a Delaware
corporation,

Defendant.

_________________________________

AND RELATED COUNTERCLAIMS.

_________________________________

Case No. 2:04-CV-139TS

________________________________

BEFORE THE HONORABLE TED STEWART

---------------------------------

March 8, 2010

Jury Trial

Jury Selection

REPORTED BY: Patti Walker, CSR, RPR, CP
[address]

A P P E A R A N C E S

For Plaintiff:

Brent Hatch
HATCH JAMES & DODGE
[address]
Stuart Singer
BOIES SCHILLER & FLEXNER
[address]
Edward Normand
BOIES SCHILLER & FLEXNER
[address]

For Defendant:

Sterling Brennan
WORKMAN NYDEGGER
[address]
Eric Acker
Michael Jacobs
MORRISON & FOERSTER
[address]

SALT LAKE CITY, UTAH; MONDAY, MARCH 8, 2010; 8:00 A.M.

PROCEEDINGS

THE COURT: Good morning. We are here in the case of SCO Group, Inc. vs. Novell, Inc. This is case 04-CV-139. Representing the plaintiff in this case is Mr. Brent Hatch, Mr. Stuart Singer and Mr. Ed Normand. Is that correct? Mr. Rick Fuentes is here as a jury consultant. Welcome.

On behalf of defendant we have Mr. Michael Jacobs, Eric Acker and Sterling Brennan. Good morning to all of you. I understand at your table is Mr. Dana Russell, Novell CFO, and Mr. -- is it Mr. or Ms. Tracy --

MR. BRENNAN: Ms. Tracy Farrell. She will be here shortly.

THE COURT: Tracy Farrell, who is also a jury consultant.

Counsel, let me go through a few matters here and then I'll see whether or not you have anything that is not covered.

Let me again remind you how we're going to select the jury. As soon as we've taken care of these preliminary matters, the Court will recess until the potential jurors have come down.

Sandy, do we have an idea how many jurors there are?

THE CLERK: I think there is going to be like 54.

3

THE COURT: She had asked for 55, and how many show up, we do not yet know. It will fill the courtroom. So all those people who are sitting in the seats behind the attorneys will probably have to find something else to do until the jury is selected.

The Court will ask the questions. One of the first questions that will be asked is to have the jurors stand and answer the juror questionnaire that I hope you all received a copy of before you left here after the final pretrial conference. After the Court has asked those questions that it thinks can be appropriately answered here in the courtroom in the presence of other potential jurors, the Court will ask a series of questions that will not be answered immediately. The Court will then have a brief side-bar where you will be given the opportunity to request that I ask additional questions.

After all the questions have been asked, the Court will then recess and bring those jurors who feel they have to answer the questions in the privacy of the jury room, we'll bring them into the jury room with you there and we'll make the inquiry of them what it is they need to answer. At that point, I will then inform you of those jurors that I intend to dismiss for cause.

We'll then return, have all the jurors here in the courtroom, and we'll then have you exercise your preemptory

4

challenges, and you each get three.

Are there any questions about that process, counsel?

MR. HATCH: No, Your Honor.

MR. ACKER: No, Your Honor.

THE COURT: I had requested from you that you supply me with a brief statement that I can read for the jurors during the process of the voir dire, but I have not seen it, so this is what I intend to ask.

This case involves a dispute between the plaintiff and the defendant over the ownership of an open-source computer program known as UNIX. Plaintiff asserts that the ownership of the copyrights to UNIX transferred from Novell to a predecessor to the plaintiff in agreements made in 1995 and 1996. Defendant asserts that the agreements did not transfer ownership of the UNIX copyrights. Other claims and counterclaims between the plaintiff and defendant flow out of this dispute. Have any of you heard or read anything about this case.

Do either of you wish to object to that statement?

MR. SINGER: Your Honor, there is one aspect of that. First, let me indicate that we were able to work out yesterday afternoon a joint statement. The one point in the Court's statement that we think isn't accurate is referring to UNIX as open-source software. That would be accurate for

5

Linux, but not for UNIX.

THE COURT: If I just said ownership of a computer program known as UNIX?

MR. SINGER: That would be accurate, Your Honor.

THE COURT: Thank you.

Mr. Brennan.

MR. BRENNAN: Your Honor, as Mr. Singer indicated -- and we do apologize for the tardiness in reaching this agreement -- we do have an agreed statement perhaps we could tender to the Court.

THE COURT: Let me take it and I'll look at it after we recess and I'll see which one I think meets the needs of the Court.

MR. BRENNAN: May I approach, Your Honor?

THE COURT: Yes, please.

MR. BRENNAN: Just one comment. From our perspective, that is Novell's, the virtue of the agreed statement is it is agreed. And the other issue is in terms of the issue that will be decided by the jury, that issue is slander of title claims, not ownership claims. And for that reason, we believe that perhaps the agreed statement might be more descriptive for purposes of the jury.

THE COURT: I will take a look at it.

MR. HATCH: Your Honor, I would point out, the reason we had a dispute is because we had actually asked for

6

some additional language. We think that IBM is interconnected with this enough that it should have been mentioned. So that's why we had an extra --

THE COURT: See, that's what I'm not going to do. I'm not going to get into -- I think it's highly unlikely that I'm going to agree to your statements because I think you are both using it to argue the case. That's not what the Court intends to do. The Court, by making that statement, just simply wants to bring it to the potential jurors' attention what this case is about so they can have their memories prompted as to whether or not they know something about it.

MR. HATCH: I agree, and we can live with Your Honor's statement.

THE COURT: All right.

Again, we agreed at the final pretrial conference that we would have 13 jurors. One will be an alternate juror, but we'll not reveal to that juror that he or she may be an alternate until the end of the trial.

Are we still in agreement on that, counsel?

MR. BRENNAN: We are, Your Honor.

MR. HATCH: Yes, Your Honor.

THE COURT: During the course of the jury selection this morning, I will ask that you introduce yourselves and everyone at your table, as well indicate the

7

witnesses that you intend to call. I believe I mentioned to you that I would ask that you identify them with something as simple as who they work for, where they live, nothing extensive, but some identifying characteristic to bring some context to the name of the individual. And I'm sure that is going to be easy for you to do, but I just wanted to remind you of that fact. Again, keeping in mind the whole purpose of it is to try to make certain we don't have potential jurors sitting here who may know those individuals. They may hear a name but not realize they may work for so and so company, live in such and such a place, and that simply helps those potential jurors.

Just for your information, it would be my intention to read the statement of uncontroverted facts immediately after the preliminarily instructions. My guess is that, at a minimum, we'll select the jury, give them preliminary instructions and perhaps the uncontroverted facts today. As I think we agreed at the final pretrial conference, if we cannot get both of your openings in today, we'll hold them over until tomorrow. That's based on the assumption that you both represented you would take an hour.

Is that still the fact, Mr. Brennan?

MR. BRENNAN: It is for Novell, Your Honor.

MR. HATCH: It is, Your Honor.

THE COURT: Do I understand, Mr. Brennan, you will

8

want to make your statement immediately after the plaintiff, you will not want to wait until they have presented their case?

MR. BRENNAN: That would be our preference, Your Honor.

THE COURT: Let me make you aware now, though it is a long way away, I intend to instruct the jury with jury instructions before your closings so you will have the opportunity of referring to the jury instructions in your closing statements.

Counsel, a couple of questions have been raised regarding the designations of depositions. And I will first have to say to you, that it is my hope that you will work together and try to resolve those disputes over what portions of either written or video depositions are to be presented. In most cases -- in fact, with the exception of one case that I can think of in my years as a judge, those have been worked out by the counsel, and it's usually based upon the premise, okay, we'll compromise on this if you'll compromise on yours and let's just let it in. I would strongly encourage you to try to do that.

If you can't, however, and there are still disputes over portions of depositions, I would request that at least a day, if not two days before you intend to use it you submit to the Court those portions of the transcripts of

9

the depositions. Even though we are talking about a video deposition, I want it in a written transcript form, and then a notation of the objection to it.

In fact, I'm going to request that it be two days before because I then will want to have at least one day to get the other side to make their reaction to the objection known to the Court. So would you please try to keep those deadlines in mind. I hope you can work these things out so there is a minimum of objections being brought to the Court for the Court to decide.

Do you have any questions about that, counsel?

MR. HATCH: No, Your Honor.

MR. BRENNAN: No, Your Honor.

THE COURT: Thank you.

A question has been raised about Mr. Messman, and you both have responded in writing. And let me just ask whether or not either of you wish to supplement what now has been provided in writing before the Court tells you what I think I need to do?

Mr. Hatch, you took first shot, then there was a response. Do you want to reply?

MR. HATCH: Yeah. Just short, Your Honor. We have since found out Mr. Messman is apparently going to board meetings, which we believe he could be -- he could certainly participate by telephone. We think it's

10

prejudicial if they are going to call him live, that we ought to be able to do the same. He's key enough to this case that he ought to be called early in the case.

But I think what we were looking for is not really a violation of the rules. It's no different than -- in a sense it's slightly different, but within the province, of taking a witness slightly out of order to accommodate other witnesses. That's what we have asked.

If they are really not going to bring him live for our case, then we be able to at least start the case, given his key nature, leave his deposition open, and allow other witnesses to be potentially called out of order until we can complete his testimony. We prefer him here, you know, if that can be done. If not, leave his testimony open and allow us to continue the direct when he does arrive.

THE COURT: Mr. Acker.

MR. ACKER: Yes, Your Honor.

We have no problem with them playing his videotaped deposition, as the rules would allow for an unavailable witness in their part of the case. We just ask that our counters be played with that. If they want to take him out of order in our case, we're fine with that as well. They can call him live and leave their case open until he's available on the 24th. He's out of the country on business starting tomorrow through the 21st of March.

11

THE COURT: I have no reason to presume that you are not representing the facts when you say you have no more control over him, that you've got him to agree to come here for your case.

So, counsel, the only question the Court would have, presuming that to be true, is whether or not it would be appropriate to have your case include both the live deposition as well as the live witness. And that does concern the Court a little bit. I would much prefer that you simply not rest on your case and then present Mr. Messman as your witness when he is here available and have the other side deal with it with their case on cross or, in effect, redirect because they are calling him as well. I would prefer that to a partial video deposition and then bringing him on live later.

MR. HATCH: The problem with that is he's a key witness and we really need to have -- you know, it really, messes up our presentation of our case if we're not allowed to put him on early -- very early in the case. If they are saying they don't have control over him, we don't even know when he shows up, which literally could be the last day of witness testimony after three weeks, whether he will even show and we end up reading the deposition anyways.

THE COURT: Would you object to them being allowed to designate portions of his video testimony during your

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primary presentation by video deposition?

MR. HATCH: That would be fine, Your Honor.

THE COURT: Is that all right?

MR. HATCH: Sure.

THE COURT: Let's do that. Why don't you work out his presentation and then you call him.

MR. ACKER: We've already given them the clips. The clips are done. So if they want to play the video, they play their video, our video, and he will be here on the 24th.

THE COURT: But it is still presumed you will not rest until after he's been presented on the 24th?

MR. HATCH: Yes, Your Honor. The only opposition would be when he comes back, do we continue or do they -- who calls him first? It would still be our case.

THE COURT: It would still be your case, yes.

MR. HATCH: Thank you, Your Honor.

THE COURT: Counsel, let me make you aware that it will be my intention, after the jury has decided this case, that I will request of you proposed findings of fact and conclusions of law on those issues that will remain for the Court -- which as it has turned out have been more than I expected -- probably within ten days of the trial ending. I understand you are receiving daily transcripts, so I think you ought to be able to monitor that information. So keep

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that in mind. And if that seems difficult at the end of trial, if you want to argue for a length of time beyond ten days, I will certainly give you a chance to do that. But that's what I would have in mind. What I mean by that, on the same day you will both present to me your proposed findings of fact and conclusions of law on those issues for the Court to decide.

Any questions about that?

MR. SINGER: Your Honor, not about that but about the related issue. It's our understanding that in the course of this trial we'll present the testimony that's relevant to the issues that Your Honor will be deciding in the ordinary course of our case, and then the proposed findings and proposed conclusions of law will be the arguments, so to speak, on that and we don't need to address that in front of the jury in terms of argument.

THE COURT: Mr. Brennan.

MR. BRENNAN: Yes. Thank you, Your Honor.

Reflecting upon that, we actually have a different suggestion that we would like to tender to the Court. One of the issues that we have here is that essentially there are four claims that are before the Court, some jury issues obviously, and some Court issues. The ones that we understand that are to be decided by the jury are limited solely to the respective slander title claims, whereas the

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specific performance and the breach of the implied covenant claims have been agreed to be Court issues.

We think that we run the risk of confusion to the jury if we are presenting evidence that is solely limited, for example, to the breach of the implied covenant claim that does involve IBM, where the jury will be hearing evidence on the issue, they won't be deciding it, they won't be given instruction, and it will be difficult and we believe, as I said, confusing to the jury to try to parse through that.

Our suggestion is there is a way to deal with that that we hope would minimize inconvenience to the jury and also limit inconvenience for the Court. Here's the proposal. We think that there are a limited number of witnesses who might be called that would have testimony or present evidence, for example, that go to the issue of the breach of the implied covenant claim. That has to do with this waiver issue under the asset purchase agreement, and it does involve the waiver relative to IMB and others. We believe, from Novell's perspective, it's probably just two or three witnesses, at most, that Novell would be tendering that would provide evidence on that subject. They likely would be the same witnesses that would be presented through cross-examination or otherwise by SCO Group.

The suggestion that we make is that for those

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witnesses, we could identify in advance to the Court when they would be called. They could remain an extra 20, 30 minutes, whatever the time frame would be, after the jury is excused, and the testimony that's relevant solely to the issues decided by the Court could be presented then. They could be a lengthy exposition. On Novell's side, we think it will go pretty quickly. But that way we would avoid, I think, the jury wondering about issues and claims that it won't decide.

So that would be our suggestion. We think it can be done efficiently. We think we can avoid prolonging a day for Your Honor and also avoid confusion for the jury.

THE COURT: Thank you.

Mr. Singer, your response.

MR. SINGER: Your Honor, first of all, we think virtually all of the evidence that would come in is going to be relevant to the issue of intent. These events occurred during the same period of time. And it is part of our case to show that relationship with IBM, their waiver to claims that also prompted these slanders of our ownership of the copyright.

Secondly, the same witnesses, and there are more than three or four, who testify about the intent of the agreement -- for instance, Mr. Frankenberg, who is the first witness we're going to be calling -- who also have things to

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say about the intent of this provision of the agreement. So a number of these witnesses are no longer involved with the parties and it would be an inconvenience for them to have to split up their testimony in that way.

The principal point I would make, I think almost all of this is going to be relevant to the issue of the intent by Novell during this same period of time.

THE COURT: Counsel, thank you.

The Court, I think, is very sympathetic to Mr. Brennan's point. I, in turn, have worried a little bit about that. So what I'm going to request is if there is in relation to a specific witness a -- first of all, I do not intend to make any witness come back to testify separately on those issues for just the Court. But if for any witness the timing of it is such that we can clearly excuse the jury early at the end of the day, or perhaps hold them and have them take a longer lunch break, or something like that, to finish up a witness and let me hear the evidence, the testimony alone without the jury, then let's do that for a specific witness. But let's not try to make a firm rule for all those witnesses that will deal with those issues at this point in time. We'll have to play it by ear as the trial unfolds.

MR. BRENNAN: Thank you, Your Honor.

Your Honor, just one afterthought. My apologies.

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I wonder if there might be wisdom in some sort of brief instruction to the jury that they might hear some matters that don't pertain --

THE COURT: Actually, Mr. Copeland sent me a note while we were talking and he made that very suggestion. So I think if you want to include that in your -- if you want to -- well, I have one right here. Never mind. We'll give them that instruction, what my law clerk has just e-mailed to me.

MR. BRENNAN: Thank you. THE COURT: All right. I believe I now have all of the exhibits on my computer. Maybe I don't. I don't. I don't have plaintiffs.

Do you have a DVD for me, Mr. Hatch?

MR. HATCH: Yes.

THE COURT: Thank you.

Counsel, do you have anything else before I excuse myself and we bring the jurors in?

MR. SINGER: Yes, Your Honor.

We had met and resolved most of the issues yesterday regarding each other's demonstratives for opening. There remain a number of issues, not a lot, but a few, that we're going to need the Court's decision on. We could deal with that now or later.

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THE COURT: Why don't we deal with it now, Mr. Singer.

MR. SINGER: Your Honor, if I might approach the podium?

THE COURT: You may.

MR. SINGER: One of those issues concerns a time line indicating the claims of ownership which are the source of the slander. There is an objection by Novell to us mentioning as part of that the copyright registrations. One of our claims is that Novell, by registering copyrights in September of 2003, that in itself was a slander of title, false statement. Novell had raised a motion in limine, number eight, on that point. That was denied.

So while we understand they disagree with that evidence, we think it's appropriate for us to make reference to it and to include it on the chart, which otherwise they find unobjectionable.

Mr. Brennan, your response.

MR. BRENNAN: Yes. Thank you, Your Honor.

I believe Mr. Singer accurately describes the objection. What we had argued to the Court in the motion in limine was that copyright registration activity falls within the scope of protected activity. Under the Noerr-Pennington doctrine, it's a petitioning the government for redress.

The Court did deny the motion in limine but also

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suggested if there were additional authorities that the parties wished to submit that appeared to be in line with the notion that a copyright application was more than a mere ministerial act, that we ought to submit those authorities.

In connection with proposed jury instructions, we did present additional authorities that we believe would be sufficient to demonstrate to the Court's satisfaction that the activity involved with copyright registration falls within the scope of the petition exclusion. We have submitted those authorities to the Court.

And in my discussion with Mr. Singer yesterday, when he presented the proposed demonstrative, I suggested that because it remained a debated issue and we had supplied the authorities to the Court, that I thought that we ought to await further resolution from the Court on that particular issue before it was included in the demonstrative to the Court.

THE COURT: I will look at those authorities, Mr. Singer, and hopefully before the end of today I will be able to tell you whether or not I am persuaded to reverse the ruling on the motion in limine number eight.

MR. SINGER: May I briefly respond to what Mr. Brennan just said?

THE COURT: You may, yes.

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MR. SINGER: Your Honor, we think there may be fair argument on whether a Noerr-Pennington instruction is appropriate and have our own authorities on that. However, there are two points which make clear, in our view, that we should be allowed to tell the jury about the copyright registrations. Number one, there is an exception to the Noerr-Pennington doctrine if the jury were to conclude as a matter of intent that that was not done in good faith. So that would be an issue the jury would need to decide in any event even if an instruction were given. And, second, the fact their copyright registration was then re-published in December and other times outside of just the application to the government made in September. So we believe Your Honor's decision was correct on the motion in limine and would like to be able to provide an opening statement in accordance with that ruling.

THE COURT: All right. Thank you, Mr. Singer.

MR. SINGER: Your Honor, the second issue that we have concerns a document -- well, there are two documents which have sort of been grouped together on this. There is a document that we would like to use in opening, which is a Wall Street Journal article that was published right at the time of the sale which talks about the deal and which Mr. Frankenberg says was an accurate statement and, if it wasn't accurate, put people on notice in a very public

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manner as to what was an understanding of the deal to represent. So we think that that should be admissible.

THE COURT: Are you intending to have it admitted as an exhibit during the course of trial?

MR. SINGER: We are, Your Honor?

THE COURT: Mr. Brennan.

MR. BRENNAN: Yes. Your Honor, there are several news reports and articles involved in the case. We suggested in our meet and confer with plaintiff's counsel that the agreement of the parties would be that if there were news articles that would be presented to witnesses to indicate intent or that otherwise they would be examined about, that we could reach an agreement that they could be used for that purpose. If we had that agreement, then they could use the demonstrative that's been suggested.

If, on the other hand, what was going to be done is there was going to be an article-by-article objection and there wasn't going to be a general understanding, at least these news articles could be used to present to witnesses to ask them about it, to see if they were aware of it, to find out what they did in reaction to it, but we have an objection to using this demonstrative in advance of an evidentiary ruling.

So Novell's position in this regard, Your Honor, is we don't have an objection to the use of the

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demonstrative that's been tendered if there's an equal understanding that other news articles that would be tendered for the same purpose could also be used by Novell. So it's a bit of a tit for tat or quid pro quo sort of arrangement.

Again, we don't object if, in turn, Novell can use them for the same purpose and we're not going to have a fight over that. Otherwise, I think we're going to have to go through the process of examining each of the articles and deciding whether they independently can be admitted. And if we can't do that now, I think it's unfair to present an objected document as part of opening.

So we're mindful of the suggestion, and we're agreeable to it as long as it works both ways.

THE COURT: Mr. Singer.

MR. SINGER: Your Honor, for certain documents, we wouldn't have an objection. The Wall Street Journal, we think, is one thing. But the article which Novell plans to use in opening, which we objected to, says SCO, our client, is the most hated company in tech. And if the actual document were to be admitted into evidence, on the first page it has prejudicial statements such as they -- referring to SCO -- are a cornered rat, and I think they have rabies to boot. So that, we think, is totally improper to go before the jury.

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THE COURT: Counsel, the Court is not going to allow you to use any exhibit in an opening statement that is not going to be clearly admissible and the other side has agreed to it. So until you can get an agreement on it, it will not be permitted in opening.

MR. SINGER: We understand both of these, then, will not be.

Your Honor, there is an exhibit which is in the form not of a videotaped deposition but part of the actual publication of the slander. It is Mr. Stone, who was an executive at Novell, standing up in March of 2004 and saying at a public conference, we still own UNIX. We have a videotape of that excerpt. Mr. Stone, in his deposition, acknowledged that it was accurate. And we believe that is different than a videotaped deposition. That is the actual evidence and we should be allowed to play that in front of the jury.

THE COURT: Mr. Brennan.

MR. BRENNAN: Well, I'm not certain how it's different than a video deposition. At least a video deposition has the benefit of being statements under oath rather than some public performance.

THE COURT: Is this video going to be admitted at trial?

MR. SINGER: Yes, Your Honor.

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THE COURT: Do you have any reason to believe it's not going to be admitted?

MR. BRENNAN: We believe that what might be permitted is the transcript of the presentation, and we don't have objection to reference to the transcript during opening argument. The concern we have is akin to what was addressed with the videotaped presentations during openings. So our objection is if they want to read to the jury the statement that was made, they are welcome to do that. But if we're going to have dueling video presentations during the opening, we have a concern over that.

THE COURT: Mr. Brennan, I appreciate the argument, but unless you can tell me you really think it's going to be precluded by a ruling by the Court, and my assumption is it's going to be admitted, if it's going to be admitted as evidence, it's very different from a video deposition. So the Court is going to permit its use in the opening.

MR. SINGER: Thank you, Your Honor. That takes care of the issues that we're aware of regarding the opening demonstratives.

THE COURT: Mr. Brennan, do you have some as well?

MR. BRENNAN: Excuse me. I've got a frog in my throat this morning.

There was another demonstrative that we had

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presented to SCO's counsel, and essentially it was a reproduction of the minutes of the board of directors of Novell held the day before the asset purchase agreement was signed. This was September 18th, 1995 at which the board of directors of Novell approved the asset purchase agreement. We do intend to present that to several witnesses during the course of trial. We do expect that the board of directors meeting minutes themselves would be admitted and we would like to make reference to those minutes during our opening. And, as I understand it, there was an objection raised. So I wanted to flag that for the Court.

THE COURT: Mr. Hatch.

MR. HATCH: Yes. Your Honor, we objected to this as a hearsay document previously when the documents were exchanged between the parties. We believe that the portion of this particular document that they are offering it for is essentially hearsay within hearsay. We have cases that would indicate this type of record shouldn't be admitted for this purpose, and we are disputing this document.

I'm also a little concerned about how this document came to be. Your Honor, we met yesterday to exchange slides. As part of that, you know, seeing other people's demonstratives and what they were doing, -- and that always gives the other side a little bit of a peak into what the other folks are doing -- this is a slide that was

26

produced to us after that meeting. And, you know, we feel pretty much -- in that meeting where we disclosed Mr. Frankenberg is going to be our first witness, Mr. Thompson second, this slide appeared, which directly tries to contradict Mr. Frankenberg. So I think there is a little bit of a fair play issue here as well. If we're going to have those kinds of meetings to be able to accommodate each side's ability to object, we ought not to be able to get an advantage like that off it either.

In any event, it's objected to. I believe that the cases show that it's -- there are probably cases both ways, but there are certainly cases that indicate -- we have the Simmons Food case out of the Tenth Circuit, 2003, the Bookworld Trade case --

THE COURT: Do you that written down?

MR. HATCH: I can give you these.

THE COURT: Do you have some authority for your side, Mr. Brennan?

MR. BRENNAN: I'm sure we could provide some, Your Honor.

Just so we're all clear here, these are the meetings of the board of directors. Mr. Frankenberg is their first witness. He authenticated the document in his deposition. He indicated it had been reviewed. These are official business records of Novell.

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THE COURT: I am very much inclined to believe it's going to be admissible, but I do want to give the other side the courtesy of looking at their authorities. If you want to give us something as early today as you can, then we'll look at both of them and let you know before the end of the day.

MR. BRENNAN: We would be pleased to do that, Your Honor. And I don't want to belabor the point, there was certainly no intent to sandbag anyone. We had our meeting yesterday. When I got back to the office and I realized we failed to include this, I immediately e-mailed it over yesterday.

THE COURT: My guess is, Mr. Hatch, you could be fairly surprised that they were going to offer it, so you may feel like you were sandbagged, but I don't think that -- again, that you could be fairly surprised that it was going to be offered as evidence.

MR. HATCH: I understand. There is no question both sides got to see that and are going to be able to have at least some sense of what others are doing in their opening and, undoubtedly, we can't get away from that. I think creating new slides after that goes beyond that.

Can I submit this on this paper?

THE COURT: Give them to Mr. Copeland.

Mr. Brennan, do you have anything else?

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MR. BRENNAN: I would just ask Mr. Hatch if at some point we could get those authorities ourselves.

THE COURT: We'll make a copy of what he just gave us and bring it right out to you.

MR. BRENNAN: Your Honor, I just have a very few brief housekeeping matters, if I might?

THE COURT: Yes.

MR. BRENNAN: In our discussion yesterday, we talked about the best way to handle deposition transcripts. We're mindful of the Court's instructions, we understand it, for the strong preference of original certified transcripts. There are a few instances, I believe, where we have the transcripts but they may not be the original certified transcripts. As I understand the agreement, between counsel at least, we would agree that if we were not able to obtain in time for presentation in court the original certified transcripts, that the parties would agree that copies could be used. But we're also mindful perhaps of the Court's concern in that regard and wanted to raise that issue with Your Honor.

THE COURT: If there is no dispute between the parties, then I will not be unduly concerned with it. I am surprised that the original transcripts would somehow not be available. You don't need to explain it. I just was expressing myself.

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MR. BRENNAN: I just feel duty-bound to let you know so there's not a feeling of inadequacy on counsel's part. These transcripts likely are from a case, the IBM case, where many depositions were taken where, for example, Novell was not a party to that action.

THE COURT: That's a quick and easy explanation.

MR. BRENNAN: Thank you.

THE COURT: Did you have anything else?

MR. BRENNAN: Your Honor, there are a couple of other matters, but I don't think we need to take the Court's time with them now and we likely could raise them at some other point. They don't impact what the Court will be doing this morning with the jury selection.

THE COURT: Mr. Hatch.

MR. HATCH: I promised at the pretrial that I would introduce Judge Edward Cahn, who is the Chapter 11 trustee, who is with us, and Bonnie Fatell, who represents him.

MR. CAHN: Good morning, Your Honor.

THE COURT: Good morning to you.

Which reminds me, counsel, during the course of the trial, is it possible that counsel who are not currently sitting at the tables may be appearing and examining or cross-examining the witnesses, or do I have the full cast of characters in front of me right now?

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MR. HATCH: You do, Your Honor. We're here.

MR. BRENNAN: Your Honor, it's likely that the cast of characters you see here for Novell will be the sole presenters, but there is a possibility that we would have another lawyer that would be involved in examining, and we certainly would introduce --

THE COURT: That's all I request is that if someone else shows up at the table one morning, will you make certain I'm introduced to that person?

MR. HATCH: Certainly.

THE COURT: Anything else?

MR. SINGER: No, Your Honor.

THE COURT: Mr. Brennan.

MR. BRENNAN: No. Thank you, Your Honor.

THE COURT: I'll excuse myself until we have the jurors in the courtroom.

MR. HATCH: Your Honor, for this portion, do you have a problem if we switch to the other side of the table?

THE COURT: No, not at all. Make yourselves not uncomfortable, but make yourselves where you can observe what you need to observe here.

MR. HATCH: Thank you.

(Recess)

THE COURT: Good morning, ladies and gentlemen.

This case is entitled the SCO Group, Inc. vs.

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Novell, Inc. It is case 04-CV-139.

Let me make you aware of the attorneys who are here this morning. On behalf of the plaintiff we have Mr. Brent Hatch, Mr. Stuart Singer, and Mr. Ted Normand. Representing the defendant we have Mr. Michael Jacobs, Eric Acker, and Sterling Brennan.

Ladies and gentlemen, I want to begin by first thanking you for being here today. Regardless of whether or not you are selected as a juror, the fact that you are here today is a very important public service.

The Constitution of the United States, specifically the bill of rights, provides that in civil cases in federal court that there is a right to a jury. If we did not have individuals such as you who are willing to take your time to be here to allow us to select a jury, and those of you 13 in number who will ultimately be asked to serve as jurors in this case, if they were not willing to serve, then our entire judicial system would collapse. And if we did not have an operating judicial system in this country, we would not have a country.

So I want to, again, thank you for being here, and I'm speaking on behalf of myself, as the judge, Judge Ted Stewart, and also the parties and their counsel who have been introduced to you here today.

I believe it was explained to you upstairs that

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your role will be to hear and decide the facts in this case. It will be my responsibility to tell you what the law is. It will be my responsibility to deal with other issues during the course of trial that perhaps you will not be able to understand. But please keep in mind that ultimately your responsibility will be to decide the facts based upon the evidence that you hear as presented by the counsel through their witnesses and exhibits and then to apply the law as I explain it to you at the appropriate time.

Just by way of introduction, let me introduce again myself. I am Judge Ted Stewart.

This is Sandy Malley, who is my courtroom deputy, case manager. Those of you who will be asked to serve as jurors in this case will get to know her because she will be largely responsible for taking care of you during the course of the trial.

This is Patti Walker, who, along with others, during the course of this trial will be responsible for making a record, a transcript of these proceedings.

And over here is Mr. Tom Copeland, who is an attorney, who is a law clerk and has the responsibility of helping me during the course of this trial.

You have been randomly selected and you are seated in a specific order so that we can get to know you during the course of this jury selection. You are numbered juror

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number one, Mr. XXXX XXXXXX, through potential juror number 52, Mr. XXXXXXX XXXX.

Mr. XXXX, will you raise your hand so we know -- thank you.

During the course of this jury selection, which is going to take the better part of this morning and perhaps into the early afternoon, at least on one occasion you will be allowed to leave the courtroom. I do have to request that when you return, make certain you sit in the same seat that you are sitting in right now. During the course of jury selection, we'll get to know you more by your number than we will your name. If you don't sit in the same order, then we become confused very, very quickly.

I am now going to ask you all to stand and raise your right hand, and Ms. Malley is going to administer an oath to you. This oath has to do with your conduct during the course of jury selection. So listen to it carefully. If you can agree to the oath, I want you to so designate by saying yes or I do.

(Jury panel sworn)

THE COURT: We'll now undertake the process of selecting 12 of you to serve as jurors and one of you to be an alternate juror. As soon as this process is done, we'll be able to excuse the rest of you. As I indicated, it may take all morning and perhaps into the early afternoon for

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this jury selection.

It is expected that this trial is going to take 15 trial days, which translates into three weeks. Keep in mind that the trials will be run from 8:30 in the morning until 1:30 in the afternoon. I don't believe that there will ever be an occasion when you will be here later than 1:30, or perhaps a few minutes after 1:30 if we need to finish up with a witness or a matter. So I would like you to keep that in mind when you are asked the question whether or not that's going to present a problem for you. I'm sure there are those of you who are thinking how will I conduct my business, do the other things that I have to do. Please keep mind you will have your afternoons and evenings free during the course of the trial.

One exception to that will be at the end of trial. When the trial is over, you, as a jury, will be asked to deliberate as long as it takes to reach a unanimous verdict. So the last date of trial and perhaps for a period after the last day, you will be here longer than that 1:30 in the afternoon.

During the course of the 8:30 to 1:30 trial, we'll take two breaks, roughly 15 to 20 minutes in length, and there will be some type of refreshments during both breaks.

Let me indicate to you, ladies and gentlemen, that we are looking for people who are able to accept their

35

limited role as jurors in that, as I've already said, it will be my responsibility to tell you what the law is and you are to decide the case, the facts from the evidence that you hear. We're looking for people who will hear and decide this case without any bias or prejudice. We're looking for people who are open-minded and able to listen carefully and make decisions. We're looking for people who have common sense and judgment.

I now need to ask you five questions that will either qualify you or disqualify you to serve as a juror in this federal court. Please listen carefully. And if you cannot affirm to all five of these qualifications, I'm going to ask you to come up and indicate to me why you may not be able to after you have heard them.

First of all, to serve as a juror in this federal court, you have to be able to affirm or assert that you are a citizen of the United States, 18 years of age or older, and that your primary residence for the past year has been the State of Utah; second, that you read, write and understand the English language; third, that you speak the English language; fourth, that you have no physical or mental disability that would interfere with your ability to serve as a juror; and, finally, that you do not have a charge pending against you for the commission of nor have you ever been convicted either by your guilty plea or a null

36

contender plea or by a court or jury trial of a state or federal crime for which punishment could have been for more than one year, unless your civil rights have been restored by amnesty or pardon.

Ladies and gentlemen, is there any one of you who cannot affirm to these five basic qualifications? If so, would you please stand.

Mr. XXXX, could I have you come forward, please.

(Side-bar)

THE COURT: Ladies and gentlemen, I'm going to ask that you now stand and introduce yourselves for us by reading the answers to the questions on that questionnaire that you received upstairs. And there are a couple of things that I want to stress. First of all, one of the questions -- I know I have my copy of it here somewhere -- is what magazines do you read, what books or magazines -- excuse me, the question is I like to read and it's asking you what books, magazines, newspapers, et cetera. It's quite common for potential jurors to say I like to read books. That's not particularly helpful to us, okay. What we need to do is answer what types of books, whether it's fiction or biographies or history.

Also, as to magazines, what type of magazines do you like to read. You don't have to mention all of them by any means, but if there is just a general category, do so,

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but please be more specific then simply I like to read magazines.

Secondly, the last four questions, perhaps five questions are very often all answered no. And if that is the case, do not hesitate to say, Your Honor, as to questions 13, 14, 15, 16, 17 18, the answer is no, instead of saying no to 13, no to 14, no to 15, no to 16, no to 17, no to 18. All right. There may be other things that I have to remind you of during the course of this.

We'll proceed, beginning with Mr. XXXXXX, and then go, in turn, through Mr. XXXX at the end.

Mr. XXXXX, if you would, please.

THE CLERK: The other thing to remember is the transmitter is in the end of this mike, so do not hold it like that.

JUROR NO. 1: I was born and raised in Heber valley in 1940. I'm a self-employed rancher now. I cut hair for 47 years in Heber City before I retired. I am married to former XXXXX XXXXX. She's a retired teacher. I have four children, four adults. The oldest one is age 49, is a contractor. The next one is 47, he's a supervisor for Stein Eriksen Lodge. My third daughter is a housewife and mother. My daughter is a teacher, my other daughter. I completed high school and Salt Lake Barber College. My hobbies are hunting, traveling, any outdoor activities. I

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ride a lot.

THE COURT: When you say you ride a lot, I presume you ride horses a lot?

JUROR NO. 1: Right.

THE COURT: Thank you.

JUROR NO. 1: I put in 45 years with the volunteer fire department in Heber City. I do like to read all materials. My books vary a great deal. Magazines, I read a lot of hunting magazines. And I will skip 13 through 17. I have not served on a jury.

THE COURT: Nor served in the military, correct?

JUROR NO. 1: Nor served in the military.

JUROR NO. 2: My name is XXXXXX XXXX. I'm juror number two. I have lived in West Jordan, Utah since 1990. I'm currently employed by a senior citizen recreation center and attend Westminster College. I'm single. I have no children. I have some college. My major is social sciences with an anthropology minor. My hobbies are anthropology, reading and outdoors. I currently don't belong to any clubs or organizations. I like to read biographies and fiction. I have not served as a juror. No to 13, 14 and 15, but my mom, XXXXXXXX XXXX, is a clerk at the Third District Court in West Jordan, Utah. And I have not served in the military.

THE COURT: Thank you.

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JUROR NO. 3: My name is XXXXXX XXXXX. I'm juror number three. I've lived in South Jordan since 1998. I am currently employed by Salt Lake County Library Systems. I am currently married. My spouse has just graduated from college and is currently unemployed. I have attended some college. Currently -- previously it was for radiology technology and now it's going for computer systems information. My hobbies, of course, are computers, music, sewing. I love animals and cooking. I like to read mainly fiction books. However, because I work in a library and process magazines, I do read a lot of the computer magazines and the articles that are in them. I have served on a trial just last year. It was with the city courts. We did reach a verdict. It was not guilty. And it was a positive experience for me.

THE COURT: It was a criminal case?

JUROR NO. 3: It was a criminal case.

THE COURT: What did the case involve?

JUROR NO. 3: A DUI.

THE COURT: All right.

JUROR NO. 3: As to do I have a family member, my uncle, he's a lawyer in California. What he does, if he's criminal or civil, I have no idea. I have very, very rare contact with him. And I think that's everything. I have not served in the military.

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JUROR No. 4: Good morning, Your Honor, ladies and gentlemen. My name is XXXXX XXXX. I'm juror number four. I currently reside in Riverton and have been there since late 2005. I am employed by Siemens Medical Solutions, but I also am going to night school at Columbia College Missouri. I am singe. I have an undergraduate degree and I'm working on my graduate degree.

THE COURT: What is your undergraduate degree?

JUROR NO. 4: It's in business, business administration.

My hobbies are reading, astronomy and, regrettably, remodeling. I am currently only a member of HIM and Utah HIM, health information management. I have served on three jurors before. One was --

THE COURT: Excuse my, Ms. XXXX, you did not mention what it is you like to read.

JUROR NO. 4: I read mainly histories, biographies, as well as industry magazines.

I'm in the health care IT industry. I have served on three juries before. Two were civil trials and in one we were dismissed before reaching a verdict. The second one we found for the defendant -- the plaintiff, excuse me. And then I have also served on one criminal jury where we found the individual guilty.

THE COURT: Ms. XXXX, let me back up. The first

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trial, the one you were dismissed, did you actually hear the case?

JUROR NO. 4: Yes, we did. At the very end of the trial, after two weeks, when the judge was going to give us instructions, the attorneys and the judge decided to let the judge make the final determination. We were dismissed and did not deliberate.

THE COURT: What was the nature of the case?

JUROR NO. 4: It was insurance and it involved three parties, trucking type of situation.

THE COURT: The second case, the other civil case, what was the nature of that case?

JUROR NO. 5: It was two individuals suing each other and it was an assault case.

THE COURT: So personal injury?

JUROR NO. 4: Personal injury, yes. I'm sorry.

THE COURT: Your criminal case, what type of case was it?

JUROR NO. 4: It was an assault.

THE COURT: Your reaction to your three times of service?

JUROR NO. 4: Very positive.

THE COURT: All three?

JUROR NO. 4: All three, yes. And I have not served in the military. I believe

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that's all.

THE COURT: Anyone in the legal profession?

JUROR NO. 4: No. No.

THE COURT: Thank you.

JUROR NO. 5: My name is XXXX XXXXXXXX. I'm juror number five. I've lived in Midvale since 2009. I am currently employed by the Utah Department of National Resources, Division of Oil, Gas and Mining. I'm currently divorced. My former spouse is a registered nurse in Minnesota. I have two children. Both are adults. My son, age 23, is a civil engineer in Salt Lake. My daughter, 20, is a college student at Brigham Young University. My highest level of education is a master's degree. My college major was geology. Hobbies and interests are maps, travel, history, walking. I belong to the American Association of Petroleum Geologists. I like to read Internet news, nonfiction books, primarily history, politics. I have served as a juror on a previous jury trial. It was a civil trial, in 1995, in Minnesota. We did reach a verdict. Found in favor of the plaintiff. My jury experience was positive.

THE COURT: Mr. XXXXXXXX, what kind of a case was it?

JUROR NO. 5: It's been a long time ago. As I recall, it was a deal broker that thought he had been

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cheated, and we found in his favor.

THE COURT: Mr. XXXXXXXX, it's possible that you have your hand over the receiver.

JUROR NO. 5: I don't know.

I do have a member of my immediate family. My younger brother is a lawyer for the State of Tennessee. I have not served in the military.

THE COURT: Thank you.

JUROR No. 6: My name is XXXXXXX XXX XXXXXXX. I'm juror number six. I've lived in Murray since 2001. I am currently a student at Salt Lake Community College. I'm single. I have two children. One in school. One is younger than school age. My highest level of education is high school, and I'm in college. My major will be physical therapy. My hobbies are running, swimming, family activities, dancing. I belong to my daughter's parent student association in her junior high. I volunteer for the softball team. And I assist with the Murray City Youth Chamber. I like to read newspaper articles, health magazines, family magazines. And 13 through 17 are no.

THE COURT: What is your current course of study?

JUROR No. 6: Physical therapy.

THE COURT: Thank you.

JUROR NO. 7: My name is XXXXXX XXXXXX. I'm juror number seven. I've lived in Magna, Utah since 2008. I am

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currently employed by ARUP Laboratories. I am currently single. My spouse is employed at ITT. I have two children, one seven and one one year of age. My highest level of education is I've completed some college at Salt Lake Community. It was just general studies. My hobbies and interests are camping and painting. I don't belong to any organizations. I like to read romance, mystery and Better Homes and Gardens. I have not served as a juror in any previous trial. 14, 15 and 16, no. And I have never served in the U.S. military.

JUROR NO. 8: My name is XXXXXX XXXXXXX. I'm juror number eight. I've lived in Salt Lake City since August 2008. I am currently single. Currently employed by the Pointe Restaurant at HCI. I currently go to Salt Lake Community College.

THE COURT: What is your course of study?

JUROR NO. 8: General studies. My hobbies and interests are running, working out, hiking, skiing. Do not belong to any clubs or organizations. I like to read magazines, Sports Illustrated, ESPN, economic magazines, also a variety of newspapers, the Salt Lake Tribune and my local newspaper back in Illinois. I have not served on a jury in previous trials. No to questions 14, 15, 16. I'm not in the United States military.

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THE COURT: Thank you.

JUROR NO. 9: Hi. I'm XXXXXXX XXXXXXXX. I am number nine, juror number nine. I've lived in Sandy, Utah since 1972. I am currently employed by Highland Cove Retirement Community. I am married. My husband is self-employed. He owns a lawn care business, for 30 years. We have four children. The first one is 42. She has a teaching degree, but right now she's a homemaker. My son is an obstetrician. My other son is an auditor for Workman's Comp. My other daughter is a hairstylist. I had some business college. My hobbies are camping, reading, traveling. I don't belong to any organizations. I like to read books and magazines, fiction and just family magazines. I have never served on a jury. I have no other -- I have not been in the military.

JUROR NO. 10: My name is XXXXXX XXXXXX. I'm juror number ten. I have lived in Toquerville, Utah, which is in Washington County, since 2006. I am currently employed with the Learning Center for Families. I am also a full-time student working on a master's degree in organizational performance. And my bachelor's degree is occupational therapy. I am currently married. I have two children, two years and three years old. Our third one is due in June. My hobbies include camping and woodworking. I am not a member of any specific clubs or organizations. I

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love reading history and researching any topic that just comes to interest to me. And questions 13 through 17 are all no.

JUROR NO. 11: My name is XXXXXX XXXX. I'm juror number 11. I've lived in Ogden since '07. I am not currently employed. I am married. My husband is self-employed. He does irrigation and landscaping. I have no children, this month. My highest level of education is high school. My hobbies, I really like to do outdoor things, hiking. I like art a lot. I don't belong to any clubs or organizations. I like to read historical and nonfiction books. I don't really read any magazines. I've not served on a jury. I do have an uncle in California that works for Aetna Health Care, I think. He is a medical attorney.

THE COURT: As an attorney, however?

JUROR NO. 11: Yes. And I've never served in the military.

JUROR NO. 12: Ladies and gentlemen, I'm looking forward to serving on a jury without a problem. My name is XXXX XXXXXXX. I'm juror number 12. I've lived in Draper since '02. I work for Varian Medical Systems. I am not a doctor, but I do -- I'm in manufacturing, engineer. Married. My wife is a teacher in the Granite school system. Four daughters, three sons, which makes seven children, and

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ages are 43 to 38, but don't worry about it too much. I was married before and have a set of twins, so it all adds up. I have a college degree in engineering.

THE COURT: Mr. XXXXXXX, you need to back up and give us the occupations of your adult children, please.

JUROR NO. 12: I meant to do that. Well, there are five engineers -- I'm pretty persuasive it seems -- a writer and a public relations.

Do you want them broken down?

THE COURT: I think that's all right. Thank you.

JUROR NO. 12: My hobbies are gardening, remodeling, exercise. My interest is to live to be 100. Working on it. I belong to a real estate investment group. I do read a variety of magazines for Newsweek, National Geographic, Reader's Digest, science news, invention, technology type things. I enjoy it. 13 through 17 is no.

JUROR NO. 13: My name is XXXXXXX XXXXXX. I am juror number 13. I've lived in West Valley since 1991. I currently am employed by Verizon Wireless. Divorced. My ex-husband is employed by Magnuson Metals as a foreman. I have two children that are both still in school. My highest level of education is high school. My hobbies and interests are just spending time with my family and friends, reading. I don't belong to any organizations. I like to read inspirational books, self-help, personal growth, my kids'

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homework. I have never served on a jury. 13 through 17 are actually no.

JUROR NO. 14: Good morning. My name is XXXXX XXXXXXX. I'm juror number 14. I've lived in Salt Lake City since 1996. I'm currently employed by Medical Group Insurance Services. I've been married ten years. My spouse is a former middle school teacher. She is now employed part-time by the Salt Lake City Catholic Newman Center as a music director. I do have two children, ages six and three, that keep us busy. I have a post-graduate degree and my undergraduate degree was a BFA, fine arts with advertising design. I have an MBA. Hobbies and interests, I enjoy music, drawing, painting, outdoor activities, camping and fishing, family activities such as that.

I do manage a local nonprofit group of juggling performers. An odd club to belong to, but it's interesting. Reading material, I have eclectic taste, but I do read the local newspapers, Salt Lake Tribune. Magazines are mostly trade magazines, Popular Science, Web development, Web design as part of my marketing communications employment. I try to jump between fiction and nonfiction reading material. As for questions 13 through 17, they are no, no previous jury experience, and I have not served in the military.

JUROR NO. 15: My name is XXXXXXXX XXXXXXXXX. I'm juror number 15. I live in American Fork and have been

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there since 2000. I currently am employed at Alpine School District as a paraprofessional aide in third grade. I am married. My husband is retired from the credit union business. We have three adult children. They are ages 40, retired teacher and now homemaker. A 34-year-old son who works in the food service and restaurant industry. A 30-year-old daughter who graduated and is a homemaker as well -- graduated from college. My highest level of education is over three years of college. I majored in elementary education. I enjoy traveling, quilting, family fun, sewing. Currently remodeling our home and enjoying that mess. I don't belong to any extra clubs besides church memberships. I read magazines, National Geographic, Family Circle, Woman's Day, sewing and quilting magazines, church books, history biographies and gardening. I have served on a jury in approximately 2003. We did reach a jury verdict of guilty. It was a DUI.

THE COURT: Was the experience generally favorable?

JUROR NO. 15: It was, yes. Thank you.

My sister is a paralegal for Supervalu Company that just purchased Albertson's. She lives in Boise. And I have not served in the military, but my husband has.

THE COURT: Thank you.

JUROR NO. 16: My name is XXXX XXXXXX. I'm juror

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number 16. I live in Centerville, Utah, and have since 2005. I am currently employed by Bingham Engineering as a landscape architect. I am divorced. My spouse, I have no idea what she does, nor do I care. No children. My highest level of education, I've got a bachelor degree in landscape architecture from Utah State University. My hobbies are pretty much anything outside, golf, motorcycles, fishing, camping, waterskiing. I belong to a professional organization, American Society of Landscape Architects, the Western States Professional Motorcycle Hill Climbing Association, American Motorcycle Association.

Reading, I like to read adventure and suspense novels. And magazines, motorcycles, travel, and design magazines, but I mostly look at the pictures. I read professional and trade literature from design, planning and environmental issues. I have served on a jury. It was a federal criminal jury, I think in 2001. We did reach a verdict. It was a guilty verdict. My overall experience I feel was positive.

THE COURT: Mr. XXXXX, what was the offense? Do you remember?

JUROR NO. 16: It was a drug case.

THE COURT: Thank you.

JUROR NO. 16: I don't have any family members or close acquaintances that are in the legal field. And I've

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never been in the military.

JUROR NO. 17: My name is XXXXX XXXXX. I'm juror number 17. I live in Kearns. I've lived there for five years. I've lived in Utah since 1982. I am currently employed by JB Hunt Transportation. I am married. My wife is a housewife. I have two young children, one that is in first grade and the other one is not old enough to go to school yet. I'm expecting another boy in September. My highest education is 12th. My hobbies and interests is model railroading, camping. I am a Park City coach in the Boy Scouts. I like to read Boys Life and other magazines of Boy Scouting, model railroading. I have not served as a juror. And 14 through 17 are all no.

JUROR NO. 18: My name is XXXXX XXXXXXX. I'm juror number 18. I've lived in Sandy, Utah since 1978. I have sold construction equipment for 33 years, and I'm currently employed by Holland Equipment Company in Salt Lake City. I'm married, for 35 years. My wife is not employed. I have four adult children. My oldest son, 33, is a Web administrator. He works for PMI at Thanksgiving Point. My daughter is 31, she's a medical assistance. I have a son, 29, who is a student at the University of Utah in the medical field. A son, 25, who is a lab tech at ARUP. I have a bachelor's degree from the University of Utah in business administration. My hobbies are flying, hunting and

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shooting. I am a life member of the NRA. I am currently the president of the Utah General Aviation Association. I read the Deseret News every day and I read the scriptures every day. I also read hunting and flying magazines. I have not served as a juror. I do have a nephew, Sammy [redacted], who is a lawyer here in Salt Lake City. I do not know who he is employed by. And my bishop, Todd Hilbig, is a lawyer, and I do not know who he is employed by. I served in the Utah Army National Guard for eight years and achieved the rank of E-4.

JUROR NO. 19: My name is XXXXXX XXXX. I am juror number 19. I live in Alpine. We moved there in 2007 from Texas. Currently I'm just part-time employed by Westfield Elementary. I am married, for 31 years. My spouse is retired. I have four children, all married. My youngest daughter is 20, she is a dental assistant. A 23-year-old daughter who is a student. A 25-year-old son who is a student. A 28-year-old son who is a student. We're hoping to get them through. My highest level of education is some college in early childhood education. My hobbies are outdoors, hiking and skiing, that kind of thing. Only organizations are just church organizations. I like to read fiction books, entertainment magazines and church books. I have not served previously on a jury. And all 14 through 17 are no.

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JUROR NO. 20: My name is XXXXX XXXXXX. I'm juror number 20. I have lived in Pleasant Grove since 2008. I am currently employed by Semantic Corporation. I'm currently married. My spouse is a homemaker. I have two children under the age of five. My highest level of education is a bachelor's degree in communications, advertising, marketing. My hobbies are family activities, watching movies with my wife. I belong to no clubs or organizations. I like to read national and local newspapers, fiction novels and technology and science magazines. I have not served as a juror or served in the United States military.

JUROR NO. 21: My name is XXXX XXXXXX. I'm juror number 21. I live in Kearns, Utah. I've lived there since 1993. I am currently employed by U.S. Magnesium as an independent contractor. I do IT consulting for them. I am currently married. My spouse is employed by ARUP Laboratories. I have two children. One is a student. The other one is 19, and he's in retail sales. He's also a student. My highest level of education is a bachelor's degree in information systems. My hobbies and interests are golfing, motorcycles, scuba diving, family, traveling, fishing. I don't belong to any clubs or organizations. I like to read computer magazines and scuba diving magazines. I read KSL daily. Answers 13 to 17 are no.

JUROR NO. 22: Good morning. My name is XXXXXXX

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XXXXXXXX. I'm juror 22. I have lived in Salt Lake City since 2001. I am currently a homemaker. I have been married for 25 years. My spouse is self-employed. He's an advertising director and writer. I have four children, three student age, school age children, and one at the University of Utah. My highest level of education is a college degree from the University of Utah. My major was -- a double major in German and history with a teaching certificate. My hobbies include studying foreign languages, traveling, cooking, biking, cross-country skiing, gardening. I belong to the PTA in three different schools. And I like to read classical literature, Smithsonian magazine, National Geographic, Salt Lake Tribune, New York Times. I have never served as a juror. And I have not served in the military. THE COURT: You have no attorneys who are close friends or immediate family members?

JUROR NO. 22: Well, how close a friend? We have a lot of friends that are attorneys, but not that we speak every day with about cases. But a long list of attorneys, but not really close friends. How's that?

JUROR NO. 23: My name is XXXXXX XXXXX XXXXXXXX. I'm juror number 23. I've lived in Mapleton since 2008. I am currently employed by a disability law firm. I'm currently married. My spouse takes care of our three children and works part-time at a pharmacy. I do have three

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children. One is in preschool. The other two are younger than preschool age. My highest level of education is a bachelor's degree from Utah Valley University in paralegal studies from their school of business. My hobbies and interests are sports, snowboarding, basketball, fishing, hiking, camping. I do belong to the United Way organization in Utah County. I like to read most types of books, fiction, nonfiction. I read the Deseret News and the Daily Herald on a daily basis. And that's about it. I have not served as a juror in a previous jury trial.

My brother-in-law is an attorney. His name is [redacted]. He owns [redacted] & Associates in Spanish Fork, Utah. My brother works for him and is in his third year of law school at the U of U right now. I do work on a really close basis with five attorneys in Utah. Our law firm is a nationwide law firm. We have 23 attorneys nationwide. We mainly do Social Security disability. And I have not been in the military.

THE COURT: Mr. XXXXXXXX, you are the office manager for the law firm that you work for; is that right?

JUROR NO. 23: I manage a department of 22 paralegals. But then our law firm has about 130 employees, so I just manage the department of case managers.

THE COURT: Again, does the law firm work exclusively with Social Security disability or primarily?

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JUROR NO. 23: Primarily Social Security disability. We do some Workers Compensation, personal injury. We've done some Phen-Phen cases, Vioxx cases, other types of cases like that. But probably 99 percent of what we do is disability law.

THE COURT: Thank you.

JUROR NO. 24: My name is XXXXXXX XXXXXX. I'm juror number 24. I've lived in Midvale since 2009. I'm currently employed by Silverado Aspen Park Rehab. I am currently married. My spouse works for Maggie Sottero. We have no children. My highest level of education is a bachelor's degree in recreation therapy. My hobbies are camping, being outside and gardening. I don't belong to any clubs or organizations. I like to read fiction books, and particularly World War II fiction. 13 through 17 are no.

THE COURT: Your husband's employment?

JUROR NO. 24: Graphic designer for a bridle company.

THE COURT: Thank you.

JUROR NO. 25: My name is XXXXXXX XXXXX. I'm juror number 25. I've lived in the Kearns area since 1980. I'm currently employed by Wonder Bread and Hostess Cake as a safety director. I am currently married to the same wonderful woman for 35 plus years. My spouse is a homemaker. I have five children, three are adult age. A

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35-year-old who is a distribution manager. A 27-year-old who is a maintenance worker for US Mag. And a 25-year-old who is an office worker. I have two small children that my wife and I adopted. One is age ten and one who is 13. My hobbies are woodworking, camping and spending time with my family. I do belong to the U.S. Army Reg Association. I like to read fictional books and biographies, and read the newspaper quite frequently. I have not served on any jury. I have spent time in the U.S. Army from 1973 to 1977 as an airborne ranger, and I was a sergeant.

THE COURT: Mr. XXXXX, any associations with attorneys, close personal friends or members of your immediate family?

JUROR NO. 25: No, Your Honor.

THE COURT: Thank you.

JUROR NO. 26: I am XXXXXXXXX XXXXXXX. I'm juror number 26. I live in West Valley City and have been there since 1977. I am currently retired, but I also work as a substitute teacher for the Granite School District. I am married, for 49 years. My husband is retired. He mostly worked in computers. He spent 20 years with Intermountain Healthcare. I have seven living children, adult children. My oldest son, 48, works for Onyx Graphics, mostly in computer areas. My oldest daughter is 44. She works for data entry at the United States Post Office. My next

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daughter, 43, works for Roy School District. Next daughter, 42, works for Granite School District. My next son works -- he's a contractor, but currently is selling construction materials and such to contractors. My son, 34, is a software writer and a student. He works for Online writing software. My youngest daughter, 33, is a representative for a health care insurance company, Altius.

My highest level of education is some college. I was majoring in elementary education. My hobbies are mostly my grandchildren. I also enjoy music and camping. I belong to no outside organizations, other than my church groups. I like to read church books, magazines. I try to keep current on the fiction that my grandchildren are reading so I can have something to talk with them about. I do frequently read through -- browse through the Deseret News. I have not served on a jury. 14 through 16 are no. I have not served in the military, but my husband spent several years with the Marine Corps.

JUROR NO. 27: My name is XXXX XXXXXXX. I'm juror number 27. I've lived in Kearns, Utah since 1988. I'm currently employed by Senske Lawn and Tree Care as a lawn applicator. I am currently attending school at the University of Utah. I'm single with no children. My highest level of education is some college. I'm studying business administration. My hobbies are sports, political

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science and camping. Mostly I read political science books and history. I have not served on a jury in a previous trial. And 13 through 17 are all no. JUROR NO. 28: My name is XXXXX XXXXXXX. I'm juror 28. I've lived in West Jordan since 2007. I'm currently employed by the University of Utah. I am currently married. My spouse is a --

THE COURT: Mr. XXXXXXX, what do you do for the university?

JUROR NO. 28: I am a professor slash researcher in the department of pharmaceuticals.

THE COURT: Thank you.

JUROR NO. 28: My spouse is employed -- well, she's a homemaker. I have one child under the age of four. My highest level of education is a Ph.D. My major in college was biology. And my major for the Ph.D was biomedical science. My hobbies and interests are football, movies, music. I belong to the Controlled Relief Society, the American Society of Gene Therapy, and the American Association of Pharmaceutical Scientists. I like to read Southern Living and Parenting, other cooking books. And for 13 through 17, no.

JUROR NO. 29: My name is XXXXXXX XXXXXX. I am juror number 29. I've lived in Salt Lake since 2007. I currently work for Overstock.com. I am married. My husband

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did work for the Salt Lake School District, but he now works for Delta. He was a coach for West High School basketball. I have three kids. One that is in kindergarten, the other two are two and three. I am expecting my fourth in September. I have some college in business administration, I didn't finish, but I am licensed as a mortgage broker in Florida. And when I go back, I'm going to try and get my license in real estate. My hobbies include shopping, dancing, being with my friends and family, traveling, surfing the Internet. I belong just to the PTA at my daughter's school. I like to read Salt Lake Tribune and then our local newspaper at home, which is the Branston Herald. And also entertainment magazines, and another magazines at home called Gotcha. I've never served as a juror. My uncle is an attorney here in Salt Lake.

THE COURT: What kind of law does he practice.

JUROR NO. 29: I'm really not sure. He does a lot of things for the Polynesian culture.

I have never served in the military.

JUROR NO. 30: My name is XXXXX XXXXXXXX. I'm juror number 30. I've lived in Draper for over a year. Lived in the Salt Lake valley my whole life. I'm currently employed by Cottonwood Ortho Labs where I'm an orthodontic lab technician. I'm married. My wife is a homemaker, and she's going to be going to school for culinary arts pretty

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soon. I have two kids, both under four. One is almost two. One is almost four. I studied welding at Salt Lake Community College for a while, but didn't go into welding. My hobbies include art, including wire sculpture and drawing. Then also music. I play drums in a couple of bands. Spending time with my kids. I don't belong to any organizations or clubs. I like to read books. My kids make sure I don't have enough time to read magazines. Most of the books I like are classic literature like Dante's Inferno and Treasure Island, stuff like that. Most of these people are long deceased. The questions 13 through 17 are no. And I don't know any lawyers.

JUROR NO. 21: My name is XXXXX XXX. I am juror number 31. I've lived in West Jordan since 1991. I am not employed, but I am a student at Salt Lake Community College. I'm currently single. My highest level of education is some college. I'm doing my generals.

THE COURT: Do you have a major, Mr. XXX?

JUROR NO. 21: No.

My hobbies are snowboarding and mostly sports. I do not belong to any clubs or organizations. I like to read mostly fiction books, mostly zombie books. And 13 through 17 are no.

JUROR NO. 32: My name is XXXXXXX XXXXXXX. I'm juror 32. I've lived in Riverton since 1996. I am

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currently employed with Electrical Consultants, Inc. I am currently single. My highest level of education is some college. My hobbies and interests are hunting, fishing and camping. I don't belong to any clubs or organizations. I like to read hunting and fishing magazines. And 13 through 17 are all no.

JUROR NO. 33: My name is XXXXXXX XXXXXXXX. I'm juror number 33. I've lived in Kearns, Utah since 2001. I am a retired truck driver. I'm currently divorced. I have no contact with my former spouse. I have no children. I have some college, just general education. My hobbies and interests are sports, football. I enjoy camping and fishing. I don't belong to any clubs or organizations. I like to read magazines on health and nutrition. I like Men's Health and Men's Fitness. I've not served as a juror. I've served in the Air Force, 1975. Rank Airman First Class.

JUROR NO. 34: My name is XXXXXXXXX XXXXX. I'm juror number 34. I've lived in Salt Lake City since 1998. I grew up in Vermont. I am self-employed. I'm a sales rep for various outdoor and bicycle companies. I travel over Utah, Idaho and Wyoming. I'm single with no children. I received my bachelor's degree from the University of Utah in Spanish and business. My hobbies are mountain bike racing, snowboarding and skiing. I guess the organization that I

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belong to would be the Cannondale Factory Mountain Bike Race Team. I race professionally for them. I like to read a wide variety of books, local newspapers, cycling publications, outdoor magazines. Let's see, 13 through 17 are all no. I do have two personal friends who are attorneys, [redacted] and [redacted], both live in Salt Lake.

THE COURT: Do you know what kind of law they practice?

JUROR NO. 34: That's a good question. I think John does mostly corporate stuff. And Jared, he does a wide variety. He works with a firm, but he does a wide variety of stuff.

JUROR NO. 35: My name is XXXXXX XXXXXX. I live in Holladay, Utah and have been there since 1992. I am currently employed with an insurance company called Civil Service Employees Group, but we are not affiliated with the government. I am divorced. My ex-husband retired from private practice in the business industry. I have one son. He is a computer programmer, computer analyst. He lives in Castle Rock, Colorado. My education is some college. And I was majoring in business. My hobbies are cooking and interior decorating and gardening. I really like fashion designing. The books I like are nonfiction and fiction, and also religious. I have never served on a jury. I do know

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some lawyers. My brother-in-law is a lawyer in Colorado Springs. However, he just recently retired and his two sons took over his private practice. I have never been in the military. I've never served on a jury.

JUROR NO. 36: My name is XXXX XXXXXX. I'm juror number 36. I've lived in Salt Lake City since 1983. I am currently employed by PPG Industries. I sell paint and coatings to major contractors here in the Wasatch Front. I am currently married. My spouse is employed by the LDS Church. She's a secretary for the welfare services department. I have seven children that are adults. A set of twins that are 36, both homemakers, girls. A daughter, 35, that's a hairstylist. A son, 34, that's in construction in Phoenix. I have a daughter, 33, that is a secretary, accounts payable for a country club in Phoenix. I have a son, 25, that graduated from the University of Utah. He is now working for Chevron in finance in Kemmerer, Wyoming. I have a daughter, 24, that is a secretary for a doctor.

My highest degree of education is high school. I love sports of all kinds, especially football, old cars, music and fishing. I belong to the PDCA, which is a painter decorators council. I like to read magazines, mostly Motor Trend. I have served as a juror in 2004. We did reach a verdict. The verdict was guilty. It was a bank -- two bank robberies, and both defendants were guilty. And I had a

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very positive experience. I do know a lawyer. My son-in-law, [redacted], has his own firm, and he mostly does class action. I have not served in the military.

THE COURT: Do you know what kind of class action lawsuits he handles?

JUROR NO. 36: Some in mortgage and then he does all other kinds of law also, but I know that's been some of his bigger stuff.

THE COURT: Thank you.

JUROR NO. 37: My name is XXXXX XXXXXXX. I'm juror number 37. I've lived in Salt Lake since 1990. I am a homemaker. I am married. My husband works for Connexsus, an IT company. Three children, adults. Daughter, age 29, is a manager of a team of computer programmers. 34, she's a homemaker. And 36, self-employed wedding and events planner. My highest level of education is a few years of college, general studies. I like to garden. I like exercise. I like to read. No organizations, memberships. I read the paper, Tribune, daily, Newsweek magazine, fiction. 13 through 17, answers to all are no.

JUROR NO. 38: My name is XXXXX XXXXX. I'm juror number 38. I currently live in Holladay. I have been in the Salt Lake valley since 2001. I am currently employed by Gold's Gym as a fitness manager, and also attending the University of Utah full-time. I am single. And my highest

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level of education, I'm a junior currently. I'm in exercise and sports science, and also pedagogy, my major. I like anything that involves activity, weightlifting, dancing, the outdoors, sports. I enjoy spending time with my nieces and nephews that I have up here. I read a lot of stuff for school in the exercise, sports science field, health and fitness journals, as well as anything sports related. ESPN on line. It's no to the rest of those. I haven't served in the military or a jury before.

JUROR NO. 39: My name is XXXX XXXXXXX. I'm juror number 39. I've lived in Salt Lake City since 1986. I am a career federal employee with the Bureau of Land Management. I have 30 years of service. I'm currently single. I have no spouse. I have no children. I have a college degree, bachelor of science in forestry and wildlife from Virginia Tech. My hobbies are hunting, target shooting, and personal fitness. I'm a life member of Safari Club International and the National Rifle Association. I read primarily hunting magazines, a variety of them. I have no previous experience as a juror. I do have a family member, my older brother is a senior partner in a law firm in Pennsylvania. It's kind of a general practice. And I do not have any military experience.

JUROR NO. 40: My name is XXX XXXXXX. Juror number 40. I reside in Morgan, Utah. I've lived there

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since 1976. I'm currently employed and have been for the past 40 years in the title insurance industry, the past 20 with Mountain View Title and Escrow company in Morgan. I am married, 42 years. My spouse is retired as a civil servant at Hill Air Force Base as a branch secretary. I have two children, 34 and 32. My 34-year-old son is in car sales. My 32-year-old son is an appraiser and a title officer in the title industry. I have a bachelor's degree in computer science. And my hobbies are gardening, hunting, fishing. I am a member of the Utah Land Title Association. I read the newspaper, sports, magazines, National Geographic. And the answers to 13 through 17 are no. I have no one that I'm close to that's in the law profession.

JUROR NO. 41: My name is XXXXXX XXXXXXXX. I'm juror number 41. I've lived in Taylorsville, Utah since 1991. Though I'm currently unemployed, my main focus has been computer programming and electronics. I'm currently single and have no children. My highest level of education is some college with mainly a focus on electronic engineering and computer science. My hobbies and interests include stain glass work, programming construction and electronics. I mainly read technical manuals and news articles. For 13 through 17, the answer is no.

JUROR NO. 42: My name is XXXXXX XXXXX. I am number 42. I've lived in Farmington since '04. Currently

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retired. Currently divorced. Again, don't know where he is. Ditto, don't care. No children. Master's degree in physical education.

THE COURT: Ms. XXXXX, you indicated you were retired. What did you do before you retired? What are you retired from?

JUROR NO. 42: From the Davis School District. I taught for 24 years, and then I was in administration for nine.

THE COURT: All right. Thank you.

JUROR NO. 42: Historical novels I like. Not served as a juror. And no to the rest.

JUROR NO. 43: Hi. I'm XXXXXXX XXXXXXXX. I'm juror number 43. I have lived in Washington Terrace since 2005. I am employed with Intermountain Health Care. I'm single. I have a daughter. She's two. My highest level of education, some college. I'm working towards a fashion design and marketing major. My hobbies include football -- Go Saints. And hobbies, being a mom, music, fashion, movies, potty training. I like to read everything, mainly magazines -- I'm really nervous -- and Standard Examiner. I have not served as a juror. 14, 15, 16 and 17, no.

THE COURT: Ms. XXXXXXX, what kind of magazines do you like to read? JUROR NO. 43: Fashion, like Okay, US Weekly.

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Anything to do with somebody else's life.

THE COURT: Thank you. That's a very good answer.

JUROR NO. 44: Hi. My name is XXXXX XXXXX. I'm juror number 44. I've lived in Orem since 2009. I'm currently employed at Alpine School District as a junior high teacher. I'm married. My husband is currently going to BYU full-time. We have no children. My highest level of education is a bachelor's degree in math education with a minor in chemistry education. My hobbies are reading, quilting, watching movies, taking a break from school. I belong to the Utah Education Association. That's for teachers. I like to read fiction. I've not served as a juror. My brother-in-law is a lawyer. His name is [redacted]. I'm going to butcher the name of his firm, but I think it's [redacted], something like that. It's here in Salt Lake.

THE COURT: Do you know what kind of law he practices?

JUROR NO. 44: I think it's civil, but he doesn't usually talk to us very much about his cases.

And I've never served in the military.

THE COURT: Thank you.

JUROR 45: My name is XXXXXXX XXXXXXX. I've lived in Springville since 1950. I work as a school crossing guard for Mapleton City elementary schools. Before that I

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worked as a receptionist for a printing company. My husband works for Tour Ice as a sales delivery person. I have no children. My highest education is high school. I enjoy embroidering, reading, going to plays, the symphony. I don't belong to any organizations. I enjoy all kinds of books and magazines. I served as a juror in 1983. The judge threw the case out before it got to the jury.

THE COURT: What kind of case was it?

JUROR No. 45: It was receiving stolen goods.

JUROR NO. 46: My name is XXXXXXX XXXXXXXXXXX. I'm juror number 46.

THE COURT: Mr. XXXXXXXXXXX, could you wait a second.

Could we see why the microphone is not working.

Mr. XXXXXXXXXXX, I'm going to ask you to go ahead. I'll ask you to speak really loudly, okay.

JUROR NO. 46: Sounds good.

My name is XXXXXXX XXXXXXXXXXX. I'm juror number 46. I've lived in Midvale, Utah since 2009. I'm currently employed by the BYU political science department as a research assistant. I am currently attending Brigham Young University. I'm currently single. No children. My highest level of education is some college. My major is international relations. My hobbies and interests are international politics. I study a lot about international

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economic development. I enjoy distance running. I belong to BUY Chapters of Students for International Development, the International Honors Society for Students, Political Science Honors Society, and Phi Kappa Phi, which is another student honor society. I like to read political blogs, newspapers, current events magazines and newspapers. And the answers to 13 through 17 are no.

JUROR NO. 47: My name is XXXXX XXXX. I am juror number 47. I've lived in Sandy since 1972. I am currently employed by the U.S. Postal Service. I'm currently married to the same woman for 40 years. She's a saint. My spouse is employed by the LDS Church as a secretary for the church education system. I have four sons. One, age 36, who is an investment counselor. One who is 33, property management. And I have one who is 30, is a manager of a company down in Orem. I have one son, 26, who is a cabinetmaker and is going to Salt Lake City Community College to get his commercial pilot's license. None of them live at home. So that is nice.

My highest level of education, I attended school at Salt Lake Technical College and majored in electricity. My hobbies and interests are any outdoor activities. I love spending time at Bear Lake with my grandchildren. I belong to the Disabled Veterans Association and Order of the Purple Heart. I like to read history magazines, fiction, history

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books and trade magazines. I was called to be a juror about two months. It was for the county, but was not picked as a juror. And I served in the military for two years, in the Army, and reached the rank of E-4.

JUROR NO. 48: My name is XXXXXX XXXXXX. I live in Levan, Utah. However, I have spent quite a bit of time in Salt Lake. I moved to Levan to help take care of my mother, who is now deceased. I am employed by Lowes here in Salt Lake City. I also work at Walker's convenience store. I do hair -- volunteer hair work for Taylorsville Senior Citizens Center. I am currently divorced. My ex-husband is retired from Kennecott. I had three children. I have two living boys, both in the construction end of it, who are now unemployed. My daughter died.

I have a high school diploma, and I continued on to beauty school. My hobbies are crafts. I love yard work, camping, and I love those cruises. I belong to the following clubs or organizations. The only one I have is I have been president of a beautification committee in Levan, Utah. I do very little reading because I do not have the time, but when I do, I read crafts and cookbook magazines. I have been called for jury duty in Juab County for six months in 2008. I went three times for jury duty. It was settled outside the courtroom all three times. I then asked the judge to please be dismissed because all three cases

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were drug related, and I lost my daughter because of drugs. I have not served in the military. And I do not know anybody in a law firm.

JUROR NO. 49: My name is XXXXX XXXXXX. I'm juror number 49. I have lived in Mount Pleasant, Utah for the last ten years. I am currently employed part-time by IHC. I'm also self-employed. I have a tree farm. I am currently married to my sweet wife, 21 years. She is employed by Wasatch Academy. She is an ESL teacher, English as a second language. I have four children, ages ten to 16. I have a bachelor's degree from Utah State University in political economy. My hobbies are growing trees, riding motorcycles, and studying foreign languages. I do not belong to any clubs or organizations. I don't read a lot, at least on a regular basis, unless it's a language book. And the answers to 13 through 17 are also no.

JUROR NO. 50: My name is XXXXX XXXXX. I am juror number 50. I have lived in Herriman since 2000 -- 2002. I am currently a project manager for Garbett Homes. I am married. My spouse stays home with the children, which I have three girls, ages four, two and three months. I have some college education, all general studies. My hobbies are building, yard work, outdoor activities and hunting. I do not belong to any clubs or organizations. I read newspapers on occasion, both local papers. I served as a juror in

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2000. We did reach a verdict, guilty for the defendant. It was a domestic dispute, criminal trespass. I do not have any immediate family that is in the legal profession. I have not served in the military.

THE COURT: Your service on the jury, was it generally favorable or negative?

JUROR NO. 50: Favorable.

THE COURT: Thank you.

JUROR NO. 51: My name is XXXX XXXXXXX. I am juror number 51. I've lived in Salt Lake for -- actually, I can't quite figure out if I'm Salt Lake or Holladay because it's Salt Lake, but they call it Holladay. So, anyway, I've lived in the Salt Lake area for about 42 years. I am currently employed by Canyon School District. I am separated from my husband. He worked for the state office of education as the state director of transportation over school buses throughout the state. I have five kids. Two of them are -- two oldest children are my husband's from a previous marriage, so I have three of my own. One is 30, and she lives in Missouri. She's a housewife. One is 27, and she lives in Herriman. She's a housewife. And one is 24, and she is a housewife. She lives next door to me.

My highest education is high school. My hobbies and interests are making bread and spending time with my grandchildren. I have a little grandson that lives next

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door to me that will say, grandma, you forgot something, make bread. So it's one of my favorite things to do. I have also lately tried my hands at croqueting. I don't belong to any clubs or organizations. I like to read religious and self-help books. I have not served on a juror before. And number 16, my brother-in-law is a retired attorney. He worked in Las Vegas. Then he was the county attorney for Emery County. He moved back to St. Louis and he worked for McDonnell Douglas.

JUROR NO. 52: My name is XXXXXXX XXXX. I'm juror number 52. I've lived in Ogden City since 1988, 22 months of which I resided in St. Petersburg, Russia. I am currently employed by Higher Quality Jewelry, but consider myself a professional woodturner. I attend Weber State University full-time. I am currently single. No children. My highest level of education is some college. I have a two-year degree. My major is bachelor's of integrated studies. My hobbies and interests are woodturning. I enjoy learning and translating, and anything outdoors. I belong to the Utah Association of Woodturners, the American Association of Woodturners, and I'm an assistant coach for Highland Junior High in Ogden. I have not served as a juror, but I think it would be a good experience. I've never served in the military.

THE COURT: Thank you.

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Ladies and gentlemen, all of you, thank you very much. Why don't you all stand up and stretch your legs, because we're not nearly done.

If it seems warm to you in here, I want to apologize. I don't think this courtroom has had quite this number of bodies in here at any one time before.

All right. If we could get started, again, then, please.

Ladies and gentlemen, I'm now going to ask you a number of questions. In the law this is referred to as the voir dire, which in Latin means to speak the truth. The purpose of these questions is to first help me discern or determine whether or not there are any of you who ought to be excused form service on the jury because of bias or prejudice.

Also, and equally as important, it is an opportunity for the attorneys in this case to make educated decisions about what are known as preemptory strikes, meaning they have the opportunity to strike or to exclude some of you from services on this jury for reasons they do not have to give. All of us will be listening very carefully to the answers you give to the questions that are asked. I want you to remember again the oath you took at the very beginning obligated you, by oath, to answer the questions truthfully.

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I mentioned to you at the outset that it is expected that it will take three weeks, 15 trial days, for the parties in this case to present evidence. Thereafter, the jury will deliberate for whatever period of time it takes for the jury to reach a unanimous verdict. Does this present a special problem for any of you? If so, would you please stand.

Let's begin with the lowest number juror. If you would please give us your juror number and then explain to the Court what your problem would be.

JUROR NO. 2: I'm juror number 2. I am a full-time student Monday through Thursday. I start school at noon.

THE COURT: How many classes would you miss if you were to be done by 1:30 each day?

JUROR NO. 2: One.

THE COURT: Would you miss -- is it a five-hour class, a three-hour class?

JUROR NO. 2: Two-hour class on Mondays and Wednesdays.

THE COURT: Do you think you could make it up in some other way?

JUROR NO. 2: Possibly, if I needed to. I could talk to my teacher.

THE COURT: What is the class?

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JUROR NO. 2: Sociology.

THE COURT: All right. Thank you, Ms. XXXX.

JUROR NO. 10: I'm juror number ten. A three-week trial would be difficult for me because it would be an unpaid leave from work, which would roughly be somewhere between two, and two and a half weeks of unpaid work. For me, at the current time, would be a hardship, as well as the fact that I have responsibilities which are tied to my specific certification as an occupational therapist providing services to children with disabilities in which I have to provide evaluations which help determine services, and there are very strict time lines in which those are involved with. I am currently the only occupational therapist with the company.

THE COURT: Mr. XXXXXX, you have been told you will be done at 1:30 each day. Would you be able to make up for that missed time in the morning if you were required to?

JUROR NO. 10: No, because I work in Washington County, the St. George area. The distance would be not allow me that.

THE COURT: Thank you.

Ms. XXXX.

JUROR NO. 11: Juror number 11. I am eight months pregnant, and in three weeks I don't want to go into labor in the courtroom. I have doctors appointments once a week.

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And I live in Ogden, so the drive itself is kind of hard. Since I don't really fit behind the steering wheel, my husband has to take me.

THE COURT: Thank you, Ms. XXXX.

JUROR NO. 15: Juror number 15. I work in the school district on contract employment. I do an ESL program in the mornings from nine to eleven where I am the only one who does this computer program for children.

THE COURT: No one who could take your place during this period of time, if necessary?

JUROR NO. 15: Possibly, but it's been my responsibility. My husband is retired after a layoff, and my unemployment would be cut.

THE COURT: You are a contract employee, meaning you are paid by the hour, so the hours you would miss?

JUROR NO. 15: If I'm not there, I am not paid.

THE COURT: Could you do your work in the afternoon?

JUROR NO. 15: No, not that particular part.

THE COURT: Thank you, Ms. XXXXXXXXX. JUROR NO. 17: Juror 17. Missing three weeks of work -- I am head of the household. It would be unpaid. As of right now, I'm uninsured. If I could make up my work in the afternoon, I'm not sure.

THE COURT: Are you a long haul driver, Mr. XXXXX,

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or is it local?

JUROR NO. 17: Local.

THE COURT: Is it possible that you could make it up in the afternoon if you had to?

JUROR NO. 17: At this point in time, I'm not sure. I could find out as soon as I talk to my employer.

THE COURT: Thank you, Mr. XXXXX.

JUROR NO. 18: I'm juror number 18. I work in the construction industry. As everybody knows, the current recession has hit our industry extremely hard. We're both hanging on by the skin of our teeth. I'm a commissioned salesman, and three weeks out of my job would be financially devastating.

THE COURT: Again, you could not make it up in the afternoons or evenings?

JUROR NO. 18: No. I work mainly in Utah County, and getting from here to there to perform my job functions would be pretty much impossible.

THE COURT: All right. Thank you.

JUROR NO. 21: XXXX XXXXXX. I'm juror 21. I am contracted and paid hourly. So, again, if I'm not there, I am not paid. It's not something I could make up outside of business hours.

THE COURT: Mr. XXXXXX, again, we will be done every afternoon. You say there if no way you could make it

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up?

JUROR NO. 21: We close at 3:30. I could make up a little bit of it, I guess.

THE COURT: All right. Thank you.

JUROR NO. 30: I'm juror number 30. I work for a very small lab with six people. Even now they're already having a heart attack. I am also the sole breadwinner of the house, and missing that much work, you know, my wife and two kids, would be a devastated blow. Our work is on a tight time schedule. Everything has to be out to UPS by three o'clock, and that's about it.

THE COURT: Again, with the timetable of three o'clock, there is no way that can be extended, there is no way you could be -- for this trial, you could perhaps do the work and have a later time table?

JUROR NO. 30: We're on a very, very tight timetable. It's very strick. We have to do so many units per hour to get our quotas every day. It's really --

THE COURT: Thank you.

Mr. XXX.

JUROR NO. 31: XXXXX XXX. I'm juror 31. I attend class at Salt Lake City Community College from eight o'clock to one o'clock every day, Monday through Friday. It would be very difficult to make up those classes.

THE COURT: All right. Thank you, Mr. XXX.

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JUROR NO. 34: XXXXXXXXX XXXXX, juror 34. I am a traveling sales rep. I have to be on the road a lot for work. I have scheduled this week a sales meeting in California on the 22nd.

THE COURT: Where are your trips scheduled for this week and next?

JUROR NO. 34: I go to Moab, St. George, and then I will be in Laguna Beach, California the 22nd.

THE COURT: There is no one that can go in your stead or cover for you?

JUROR NO. 34: I work in an agency with three people, and we all have a pretty full plate.

THE COURT: All right. Thank you.

MS. XXXXXX.

JUROR NO. 35: I am juror number 35. I'm extremely busy. We're very short of help. If I was called to be a juror for three weeks, I could probably do some rescheduling. I do a lot of underwriting the policies and the work has to be done very current. We can't let it sit. These people are waiting for policies.

THE COURT: Ms. XXXXXX, if we were to ask you to serve, would you be able to do what you need to do in the afternoons and evenings?

JUROR NO. 35: I think I would have to get an okay from my supervisor.

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THE COURT: But you think you could do that, if necessary?

JUROR NO. 35: If that's what it had to be to follow the law, yes. But I still have to get the okay from my company.

THE COURT: All right. Thank you.

Mr. XXXXXX.

JUROR NO. 36: Yes. I am also in commission sales. I possibly could take care of that after 1:30. My mother was just hauled in, my sister took her into the emergency room in St. George. I don't know how that's going to affect her, but my sister can't take off. She's going to e-mail me to tell me if I needed to come down or not. And I also have a vacation planned for next week. I could reschedule that.

THE COURT: You could reschedule, if necessary?

JUROR NO. 36: Yeah.

THE COURT: If there is nothing urgent about being with your mother, you think you could serve?

JUROR NO. 36: I think, yeah, I could.

THE COURT: Thank you. Mr. XXXXXX, is this something that you could check on during our first break to ascertain?

JUROR NO. 36: If I could get to my phone, yes, I could call my sister and see what is going on.

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THE COURT: We'll have Ms. Malley make certain you get access to your phone.

JUROR NO. 36: Okay.

THE COURT: Thank you.

JUROR NO. 38: I'm juror number 38. I have a test tomorrow in one of my classes, one on Thursday. They are midterms. I have a class Tuesdays and Thursdays from 10:30 to 1:45 for the next two weeks, and then spring break would be the following week after that. I can make up work after hours, but I do have days that I work full days, but it's mainly school.

THE COURT: Thank you, Mr. XXXXX.

JUROR NO. 46: I'm juror 46. My brother is getting married on Friday morning.

THE COURT: Where?

JUROR NO. 46: In Salt Lake. I have been invited to attend -- I'm planning on going to a conference starting on the 17th of March until the 27th.

THE COURT: What is the conference?

JUROR NO. 46: Oxford University in England. And I would also miss at least eight credit hours that I couldn't make up otherwise for school.

THE COURT: Thank you, Mr. XXXXXXXXXXX.

Ladies and gentlemen, is there any member of the jury panel who has a special disability or an impairment

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that would make serving as a member of the jury difficult or impossible?

Let the record reflect that no one stood.

I want to now just give you a very brief statement about what this case is about. The reason I'm doing this is I want you to let us know whether or not you are familiar with the parties or the issues in this case.

This case involves a dispute between the plaintiff, SCO, and the defendant, Novell, over the ownership of a copyright to a computer program known as UNIX. Plaintiff asserts that the ownership of the copyright to UNIX transferred from Novell to a predecessor to plaintiff in agreements made in 1995 and 1996. Defendant asserts that the agreements did not transfer ownership of the UNIX copyrights. Other claims and counterclaims between the plaintiff and defendant flow out of that dispute.

Have any of you heard or read anything about this case? If so, would you please stand.

Let's begin with Ms. XXXXXXXXX. To what extent are you familiar with this case?

JUROR NO. 15: I read the article in the newspaper yesterday, and didn't form an opinion, but just read the article.

THE COURT: I think what I probably ought to do is all of you who are standing, -- Ms. Malley, will you please

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take their numbers -- if you will just shout out your numbers. What I think is probably safer to do is when this process is almost over, I'm going to ask a number of questions that I don't want you to answer here in the courtroom but rather will bring you back one at a time into the jury room where in the presence of myself and counsel will have you come in one at a time and answer the question. I think it's going to be best if we -- instead of have you answer anything further about what you may know about the case now, I'm going to have you come back during that little part of the process. So if you would just, in order, shout out your juror number. And keep in mind, we'll have you come back in a few minutes.

JURORS: 15, 18, 23, 26, 37, 44, 45.

THE COURT: Thank you.

I'm now going to ask counsel for the plaintiff to stand and introduce himself and those who are sitting at the table with him. And he is also going to read to you a list of the witnesses that will be called by the plaintiffs in this case. And he's going to give some identifying characteristic, for example, where they live or who they work for. The purpose of this is to see whether or not any of you know these individuals that you are going to now be introduced to and whether or not you may be personally familiar with any of the witnesses that are going to be

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called. So please listen very carefully. After you've had the introductions, I'll ask you to stand if you know any of these people.

MR. HATCH: Thank you, Your Honor.

My name is Brent Hatch with the Salt Lake law firm of Hatch James & Dodge. At the table is Stuart Singer and Ted Normand from the law firm Boies Schiller & Flexner. Also at the table is Ryan Tibbetts, who is an executive with the SCO Group, our client, the plaintiff, in this action. And with us as well is Rick Fuentes.

THE COURT: Mr. Hatch, can you identify the law firm with which --

MR. HATCH: I did. Boies Schiller is the law firm.

THE COURT: Okay. Thank you.

MR. HATCH: Thank you, Your Honor.

The potential witnesses in this case include Dr. Christine Botosan, who is a professor of accounting at the University of Utah; William Broderick, a former employee of Novell, employee of SCO, who is, I believe, in New Jersey; Thomas Cargill, a software consultant in Boulder, Colorado; Ted Chatlos, a former Novell executive in New Jersey; Gervaise Davis, a lawyer in Monterey, California, and he's a law professor at Santa Clara University law school; Robert Frankenberg, a former CEO of Novell, who I believe lives in

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Utah; Lee Johnson, a citizen of Utah; John Maciaszek, a former employee of Novell and a current employee of SCO; Ty Mattingly, a former Novell executive living in Utah County; Darl McBride, a former CEO of SCO who lives in Salt Lake City; Jack Messman, a former CEO of Novell who lives in Massachusetts; Doug Michels, a founder and executive of Santa Cruz Operation in Santa Cruz, California; Gary Pisano, a professor of business administration at the Harvard business school; Chris Sontag, former senior vice president of SCO who lives in Salt Lake City, Utah; Duff Thompson, a former senior vice president of Novell and former board member of SCO, and lives in Utah County; Ryan Tibbitts, who you've met, was an executive at SCO, lives here in Utah; Ralph Yarro, a former chairman of SCO who lives in Orem, Utah; Larry Gasparro, a former executive of SCO, and I'm not sure where he is now, but he's back east somewhere; Burt Levine, a former lawyer at Novell, who I believe is in New Jersey; Alok Mohan, a former CEO of Santa Cruz Operation in Santa Cruz, California; Maureen O'Gara, a news reporter in the technology industry, who lives, I believe, in Long Island, New York; Gregory Petite, a former executive of SCO, who is in Massachusetts; Stephen Sabbath, former general counsel of Santa Cruz Operation, in California; Christopher Stone, a senior vice president at Novell, and I'm not sure where he is now; Jean Acheson, a former employee of SCO in

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Salt Lake City; Gregory Jones, a Novell employee, I believe lives in Utah County; Paul Moxley, who is a Salt Lake City attorney; Kim Madsen, a former director of corporate affairs for Santa Cruz Operation, in California; Joseph LaSala, a former employee of Novell, who I believe lives in the D.C. -- Washington, D.C. area; Phillip Langer, a former sales executive of SCO, in Illinois; Andrew Nagle, a senior director of product development, in Connecticut; Michael Olsen, a former executive at SCO who is in Utah County; and, Jim Wilt, a former executive of Santa Cruz Operation, who I believe is in Switzerland.

MR. HATCH: Thank you, Your Honor.

THE COURT: Thank you, Mr. Hatch.

Ladies and gentlemen, do any of you know Mr. Hatch or any of the other attorneys that were introduced to you or are you familiar with their law firms, or do any of you recognize any of the witnesses that will be called as just identified by Mr. Hatch? If so, would you please stand.

Ms. XXXXXXXX.

JUROR NO. 22: Yes. Do you want me to explain?

THE COURT: Yes.

JUROR NO. 22: Ryan Tibbitts, we were neighbors ten years ago in Jeremy Ranch.

THE COURT: All right. Were you friends?

JUROR NO. 22: We were in the same ward, but on

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opposite ends of Jeremy Ranch.

THE COURT: Would that relationship from ten years ago affect your ability to be a totally fair and impartial juror in this case?

JUROR NO. 22: No.

THE COURT: Are you confident of that?

JUROR NO. 22: Yes.

THE COURT: All right. Thank you, Ms. XXXXXXXX.

Mr. Brennan, would you please make the same introductions.

MR. BRENNAN: Thank you, Your Honor.

Good morning, ladies and gentlemen. My name is Sterling Brennan. I practice law here in Salt Lake City with the law firm of Workman Nydegger. I am joined at counsel table by two of my colleagues, Michael Jacobs and Eric Acker. Mr. Jacobs and Mr. Acker practice with the law firm of Morrison & Foerster. I also have with me at counsel table Mr. Dana Russell. Mr. Russell is the senior vice president and the chief financial officer of our firm's client, Novell, Inc. Mr. Russell is from Morgan, Utah, and attended, as an undergraduate student and a master's student, Weber State University. He now resides in the east coast.

In terms of witnesses that Novell expects to call at trial: Mr. Greg Jones, who is a Novell in-house

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attorney, and he resides in Utah County; Mr. Jack Messman, who is the former chief executive officer of Novell, and he resides in California; Mr. Joe LaSala, who is the former general counsel of Novell, and he resides on the east coast in the Massachusetts area; Mr. Chris Stone, who is a former senior Novell executive, and Mr. Stone presently resides in Summit County; Mr. Tor Braham, who is a former attorney with the law firm of Wilson Sonsini Goodrich & Rosati in Palo Alto, California; Mr. Jim Tolman, who is the former Novell chief financial officer, and he resides in the San Jose, California area; Mr. David Bradford, who is also a former Novell general counsel, and he resides here in Salt Lake City; Ms. Allison Amadia, who is a former Novell attorney, and she resides in the San Francisco Bay Area; Mr. Aaron Alder, who is an attorney with the law firm of Wilson Sonsini Goodrich & Rosati, and he resides in the Bay Area in California; and then Mr. Terry Musika, who is a practicing accountant, and he lives on the east coast.

In addition, Mr. Michael DeFazio, who is a former Novell executive; Mr. Samuel Greenblatt, who is an executive at CA, Inc.; Mr. Scott Handy, who is an executive with IBM; and Michael Danaher, who also is an attorney with the law firm of Wilson Sonsini Goodrich & Rosati, also in the San Francisco Bay Area.

Thank you, Your Honor.

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THE COURT: Thank you, Mr. Brennan.

Ladies and gentlemen, do any of you know Mr. Brennan, are you familiar with his law firm, or any of those individuals that you were introduced to at the table, or do any of you recognize the names of any of the witnesses that Mr. Brennan indicated that he would call?

Ms. XXXXXXXXX.

JUROR NO. 15: Juror number 15. I'm long time friends with Rick and Denise Nydegger. We're not close now, but we were years ago.

THE COURT: You have known Mr. Nydegger for a long time?

JUROR NO. 15: Yes.

THE COURT: You are not close now, but you had a long friendship. Do you think that would interfere with your ability to be a fair and totally impartial juror?

JUROR NO. 15: No.

THE COURT: Are you confident of that?

JUROR NO. 15: Yes.

THE COURT: Yes, sir.

JUROR NO. 40: XXX XXXXXX, juror number 40. I'm an acquaintance of Mr. Russell. I've done several real estate tractions with him in the past.

THE COURT: Would that relationship affect your ability to be a totally fair and impartial juror in this

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case?

JUROR NO. 40: I don't believe so.

THE COURT: Are you confident of that, Mr. XXXXXX?

JUROR NO. 40: Yes.

THE COURT: All right. Thank you.

Ladies and gentlemen, do any of you recognize any other potential juror as a former friend, roommate, any other relationship with anyone else on the jury panel?

Do any of you personally know me, Judge Ted Stewart, or any member of your immediate family know me?

JUROR NO. 44: Do you want me to go first?

THE COURT: Mr. XXXXXX, if you would go, please.

JUROR NO. 40: I served on the Morgan County republican chair several years ago when you were running for governor against Mike Leavitt and others.

THE COURT: Well, that answers my question because I didn't run for governor. I ran for senate, but it was that same year. There were so many of us, I don't blame you at all for not being able to keep track. Other than that, in 1992, let me ask you this, would that former association interfere with your ability to be a totally fair and impartial juror or is there anything else about that association that would interfere with your ability to be a juror in this case?

JUROR NO. 40: No, sir.

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THE COURT: Thank you, Mr. XXXXXX.

Ms. XXXXX.

JUROR NO. 44: Juror 44. My brother-in-law, [redacted], is a lawyer, so I just asked him, I'm going in for juror duty, do you know anything about this. He just said he knew of you.

THE COURT: Is he from Kaysville?

JUROR NO. 44: His law -- one of the people who works with him, his good friend. Does that make sense?

THE COURT: I do know some [redacted] from Kaysville.

JUROR NO. 44: No. He lives in Lehi now.

THE COURT: All right. Thank you.

Ladies and gentlemen, other than a divorce, have any of you or a member of your immediate family ever participated in a lawsuit either as a party, a witness, or in any other capacity? Again, other than a divorce, have you or a member of your immediate family ever participated in a lawsuit either as a party, a witness, or in any other capacity? If so, would you please stand.

Ms. XXXX, would you tell us what.

JUROR NO. 2: I was attacked by a dog when I was eight years old, and we sued and won.

THE COURT: You were quite young?

JUROR NO. 2: Yeah.

THE COURT: Was there anything about that

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experience that would interfere with your ability to be a juror in this case?

JUROR NO. 2: No.

THE COURT: Did you feel as if the judicial system worked for you in that case?

JUROR NO. 2: Yes.

THE COURT: Any strong feelings out of that that would affect your ability to be a juror here?

JUROR NO. 2: No.

THE COURT: All right. Thank you, Ms. XXXX.

Okay.

JUROR NO. 13: Juror 13. I don't know if you want to know about this, but bankruptcy court.

THE COURT: Yourself?

JUROR NO. 13: Right.

THE COURT: Currently or recently?

JUROR NO. 13: Uh-huh, and it was just discharged.

THE COURT: Is there anything about that experience that would interfere with your ability to be a juror in this case?

JUROR NO. 13: No.

THE COURT: Do you feel as if the judicial system worked for you in that case?

JUROR NO. 13: I do.

THE COURT: All right. Thank you.

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Mr. XXXXXXX.

JUROR NO. 14: My father had a small claims, civil dispute I suppose.

THE COURT: Anything out of that experience that would interfere with your ability to be a juror in this case?

JUROR NO. 14: Not at all.

THE COURT: Thank you.

Mr. XXXXXX.

JUROR NO. 16: Five years back my brother was -- almost six years -- in the federal system. He was arrested. The charges were disruption of interstate commerce.

THE COURT: Anything about that experience that would interfere with your ability to be a juror in this case?

JUROR NO. 16: No.

THE COURT: Do you feel like he was treated fairly by the system?

JUROR NO. 16: I guess, yeah. I mean --

THE COURT: I would not take that as an overwhelming endorsement. But, again, the question is whether or not that criminal matter would affect your ability to be a juror in this civil case?

JUROR NO. 16: No.

THE COURT: Thank you.

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JUROR NO. 17: XXXXX XXXXX, juror 17. It was a bankruptcy.

THE COURT: Just recently?

JUROR NO. 17: Four years ago.

THE COURT: Mr. XXXXX, did you feel as if the system worked appropriately for you?

JUROR NO. 17: Yes, sir.

THE COURT: Was there anything about that experience that would interfere with your ability to be a juror in this case?

JUROR NO. 17: No.

THE COURT: All right. Thank you.

JUROR NO. 25: XXXXXXX XXXXX, juror number 25. I, too, had a small claims court about 25, 27 years ago.

THE COURT: Anything about that experience that would interfere with your ability to be a juror here?

JUROR NO. 25: No, Your Honor.

THE COURT: Thank you, Mr. XXXXX.

JUROR NO. 36: Juror number 36. My daughter was a party to a lawsuit for some mortgage -- I don't remember what it was. Also, I left a company along with some co-workers. We were sued by the company, our former employer. It was settled out of court. And neither one of those would make a difference to me one way or the other.

THE COURT: You don't feel as if the judicial

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system is operated ineffectively or prejudicially in either of those instances?

JUROR NO. 36: No.

THE COURT: Thank you, Mr. XXXXXX.

Ms. XXXXXXX.

JUROR NO. 37: My husband was involved in a lawsuit with a division of Dunford Bakery, the distributor in California.

THE COURT: How did the lawsuit turn out?

JUROR NO. 37: We lost.

THE COURT: Do you feel as if the system worked or did not work in that instance?

JUROR NO. 37: I honestly couldn't say I know.

THE COURT: Is there anything about that experience that would interfere with your ability to be a juror in this case?

JUROR NO. 37: I don't think so, no.

THE COURT: Thank you, Ms. XXXXXXX.

JUROR NO. 41: I am XXXXXX XXXXXXXX, juror 41. I am currently involved in four court proceedings. Let's see, there is a probate matter that is being contested at the moment as well as I have been set up as a defendant against Capital One. And that's currently going forward. There is a bankruptcy case currently filed with this court. It was filed just last week. And then there is also an issue

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concerning a life insurance policy that's also filed in this court.

THE COURT: Mr. XXXXXXXX, some of those experiences are current, but, collectively, is there anything about those experiences that you have had with the judicial system that would interfere with your ability to be a totally fair and impartial juror here?

JUROR NO. 41: Well, I don't view the system as too fair for me, but I just don't know.

THE COURT: All right. Thank you.

Ms. XXXXX.

JUROR NO. 42: I am juror 42, and I sued for damages on a rental property about 20 years ago.

THE COURT: Anything about that experience that has lingered and do you have any feelings about it or the judicial system or your treatment by the judicial system that would interfere with your ability to be a juror here?

JUROR NO. 42: No, nothing would interfere.

THE COURT: Thank you.

Ms. XXXXXXXX.

JUROR NO. 43: I'm juror number 43, and my mother was involved in a federal case where she was found guilty and served two years in federal prison.

THE COURT: Do you feel she was treated fairly?

JUROR NO. 43: Yes.

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THE COURT: Anything about that experience that would interfere what your ability to be a juror in this civil case?

JUROR NO. 43: No.

THE COURT: All right. Thank you, Ms. XXXXXXXX.

Ms. XXXXX.

JUROR NO. 44: Juror number 44. My husband's family was involved in something when he was younger. I don't really know a lot about it, but I think everything went, you know, according to justice and everything.

THE COURT: No feelings from that experience?

JUROR NO. 44: No.

THE COURT: Thank you. JUROR NO. 47: I am juror number 47, XXXXX XXXX. I was charged approximately three years ago in the Sandy City court with withholding evidence. I pleaded no contest and was given six months probation.

THE COURT: Anything about that experience, Mr. XXXX, that would interfere with your ability to be a juror in a civil case?

JUROR NO. 47: No. It was my fault. I didn't know the law.

THE COURT: All right. Thank you.

Ms. XXXXXX.

JUROR NO. 48: Juror number 48. Two years ago I

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was involved in a car accident where a semi rear-ended me and totaled my car and put me in intensive care for a couple of days. They settled with me out of court.

THE COURT: Anything about that experience that would interfere with your ability to be a juror in this case?

JUROR NO. 48: No. They settled profitable.

THE COURT: So you were happy with the outcome?

JUROR NO. 48: I was.

THE COURT: Ladies and gentlemen, I have indicated to you that, as jurors, it will be your responsibility in this case to be the finder of the facts, but it will be my responsibility to determine and communicate to you what the law is and what evidence will be admissible for you to hear. Do any of you have a problem with that division of labor? If so, would you please stand.

Let the record reflect that no one stood.

Ladies and gentlemen, unless you have already disclosed it, have you or a member of your immediate family ever been employed by a computer company or a computer software developer? Some of you have indicated it during the course of your introduction, but this is for those of you who did not previously disclose it.

JUROR NO. 4: I'm XXXXX XXXX, juror number four. I have worked for 25 years for a health care software

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developing company. It's been owned by many different companies, but it's currently Siemens Medical out of Malvern, Pennsylvania.

THE COURT: Thank you.

JUROR NO. 7: I'm juror number seven. My partner works for ITT. I don't know exactly what type of software they make, but she does do something with it. My mom works at Fairchild. They also work on it. I don't know exactly what it is that she does, but she works on some type of motherboard, or something like that. Both of their companies, whenever they work on it, it is completely confidential, so they don't talk about it much.

THE COURT: Does your mother work in computer in the manufacturing?

JUROR NO. 7: She does -- she makes the motherboards. She burns the software onto it. I don't know, something like that.

THE COURT: Thank you.

Let's back up to juror number three.

JUROR NO. 3: XXXXXX XXXXX. Was I employed by them? No. However, there was a company, I think on the east coast, Technologist, they work with library systems. And I'm trying to think who the owner of it is because it could be a different system. We beta tested their software for the library systems. It was a circuit. They were the

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beta testing company for the nation. We were directly with that company for about three months to get it up and running. Now it's used broadly in our library system as well.

THE COURT: Thank, Ms. XXXXX.

JUROR NO. 14: Juror number 14. I've worked in the past for software development companies. Park City Group. It's a point of sale software, retail point of sale software. Nebo International, we were actually partnered with Microsoft in end-user training certification of software. And for the most recent was one arm of Sun Garden International -- or Sun Garden Investment Systems. It was a personal finance retirement planning software.

THE COURT: Thank you, Mr. XXXXXXX.

Ms. XXXXXXXXX.

JUROR NO. 15: Yes. As I've explained, my sister is employed as a paralegal. She does trademark infringement. For the company she works for, she's worked in the past with Claris and Sun Microsystems. I felt I needed to clarify.

THE COURT: Thank you. That's helpful.

JUROR NO. 21: Juror 21. I used to work at Micron Technology, and also a company that was merged with Intel starting the manufacturing of the IT group.

THE COURT: In the IT group?

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JUROR NO. 21: I'm no longer employed with them.

THE COURT: Thank you.

JUROR NO. 22: Juror 22. My husband was worldwide creative director for Intel Corporation and a number of other corporations in Silicon Valley.

THE COURT: Primarily dealing with Web? Primarily dealing with Web designs?

JUROR NO. 22: Yes.

THE COURT: Software related to the Web?

JUROR NO. 22: Yes. And for Intel, it was the pentium processor. He did the marketing for that.

THE COURT: All right. Was he always on the marketing side?

JUROR NO. 22: Uh-huh. (Affirmative)

THE COURT: Thank you.

JUROR NO. 26: I'm XXXXXXXXX XXXXXXX. I'm juror number 26. We opened the first small computer -- personal computer store in Canada in 1975. We owned that store for a few years before we moved back here to Utah. My husband and my sons have always been very involved in computers. My youngest son now works for a software developer. I am not aware of any of them ever having particularly worked with Novell or UNIX.

THE COURT: All right. Thank you.

JUROR NO. 27: I am juror number 27. Both of my

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parents are electrical engineers. My dad worked a lot with modems and different things. My mom, more like airplane simulators. I have an uncle who is in the video game design with Microsoft.

THE COURT: Thank you.

JUROR NO. 21: Juror number 21. My uncle and brother-in-law were both former employees of Novell.

THE COURT: Of Novell?

JUROR NO. 21: Yes.

THE COURT: How long ago were they employed there?

JUROR NO. 21: One was employed for over 15 years, my uncle. And my brother-in-law, probably about five or six years.

THE COURT: Is there anything about that relationship between them and Novell that would interfere with your ability to be a totally fair and impartial juror here?

JUROR NO. 21: Not that I'm aware of.

THE COURT: Did they leave under circumstances that left them unhappy?

JUROR NO. 21: Yes.

THE COURT: All right. Thank you.

JUROR NO. 44: Juror 44. My husband, when he was working on an undergraduate degree, did an internship at Novell. He did his degree in finance. So he worked kind of

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in the collections department, not with any of the software, but he did work at Novell. And he quit because working and going to school was a lot of work. I talked him into quitting.

THE COURT: Was there anything about that relationship or his leaving that would interfere with your ability to be a fair and impartial juror here?

JUROR NO. 44: No.

THE COURT: You're confident of that, Ms. XXXXX?

JUROR NO. 44: Yes.

THE COURT: Thank you.

JUROR NO. 45: Juror number 45. My brother had his own computer company. He set up all the Internet for the Olympics here in 2002. Also I've got a nephew that works for a computer company in Orem.

THE COURT: Thank you.

Ladies and gentlemen, do any of you have strong feelings, whether they be positive or negative, about large computer companies, such as IBM, Microsoft, Novell or Sun? If so, would you please stand.

Let the record reflect that no one stood.

Ladies and gentlemen, do any of you know what Linux is, L-i-n-u-x? If so, would you please stand.

Would you briefly give your jury number and tell us how you know what it is, what it is that generated your

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familiarity with it.

JUROR NO. 3: Juror number three, XXXXXX XXXXX. I have not worked with the system. It is an open-coded system that's an operating system. There are, I know, some basic setups so those users that aren't programmers can use it. A lot of my friends have actually started using the Linux software instead of Windows. I have very little contact with it myself.

THE COURT: Thank you.

JUROR NO. 4: Juror number four. Some of the platforms that my employer uses are based on Linux operating systems. We interface with it, but we do not use it directly in my specific business unit.

THE COURT: Mr. XXXXXXX.

JUROR NO. 14: Juror number 14. My familiarity is somewhat in passing. Working in marketing communications with Web development companies, I work closely with ITs, so I do understand some basic differences between Windows and Linux as it relates to Web development.

THE COURT: Thank you.

JUROR NO. 16: XXXX XXXXXX, number 16. In 2001, I built a new computer and used Linux.

THE COURT: Thank you.

JUROR NO. 20: Juror number 20. I know what I've read in computer enthusiasts publications. I tried building

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a computer based on Linux. It didn't work very well, so I went back to Windows.

THE COURT: Thank you.

JUROR NO. 21: Juror 21, I have done some pearl scripting in Linux.

THE COURT: You've done some what?

JUROR NO. 21: Pearl scripting. It's a program language primarily on Linux.

JUROR NO. 26: Juror number 26. I personally do not know a lot about Linux, but by husband and my sons do. We have approximately ten to 15 computers in our home, half of which are Linux based and half of which are Windows based, or others. I look at my book shelves and I see Linux, Linux, Linux.

THE COURT: Thank you.

JUROR NO. 27: Juror number 27. Both of my parents use Linux a lot, but they are working engineers.

THE COURT: You don't have any personal familiarity with it, though?

No.

JUROR NO. 28: Juror number 28. I have used multiple Linux programs in my field. I haven't currently used them for probably the past five or six years.

THE COURT: All right. Thank you.

JUROR NO. 41: Juror 41. I have both used and

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built software for Linux distributions over the past 15 years.

THE COURT: Thank you.

JUROR NO. 44: Juror 44. I've heard of it in passing. Just that it's another option besides Windows. I thought it was a free operating system.

THE COURT: Thank you.

JUROR NO. 46: Juror 46. I haven't personally used it, but I have a lot of friends who are big fans of Linux.

THE COURT: Thank you.

Ladies and gentlemen, have any of you ever used a computer operating system known as UNIX?

Mr. XXXXXX.

JUROR NO. 21: Yes. When I worked with Micron, again, goes back to pearl scripting.

THE COURT: Mr. XXXXXX, anything about that experience with UNIX that would interfere or affect your ability to be a totally fair and impartial juror in this case?

JUROR NO. 21: No, Your Honor.

THE COURT: Thank you.

JUROR NO. 26: Juror number 26. I can't honestly say yes or no to that question because my husband and my sons are so into all the different --

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THE COURT: Again, this is for you personally, whether or not you personally have.

JUROR NO. 26: Personally, no.

THE COURT: Ladies and gentlemen, this question may have been asked in a different way at the very beginning, but let me ask it again, have any of you seen, read or heard anything about disputes related to the software operating system UNIX? If so, would you please stand.

Some of you.

Let me ask you this, is there anyone who did not stand when I had your numbers taken before?

All right. Thank you.

Unless you have already disclosed it, is there anyone else in the jury panel who either personally or a member of your immediate family worked for companies that licenses intellectual property or software?

Again, if you've already disclosed it once, you don't need to again.

Let the record reflect that no one stood.

Ladies and gentlemen, do any of you or a member of your immediate family own stock in SCO or Novell? If so, would you please stand.

Let the record reflect that no one stood.

Ladies and gentlemen, I'm now going to ask those

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questions that I previously indicated would be asked but I do not want you to answer here in the courtroom now. Again, after all of them have been asked, we'll then have you stand, we'll take your juror number, and we'll have you come back one at a time into the jury room to answer the questions with just myself and necessary court personnel and counsel for the parties.

If you serve as a juror in this case and the jury finds in favor of either the plaintiff or the defendant and the plaintiff or defendant has suffered damages, would any of you have difficulty awarding the full measure of those damages?

Again, you have had a description of this case given to you and you have been introduced to the parties and counsel and witnesses for the parties. I'll ask you again, if any of you have heard or read anything about this case?

Is there anything about the specific claims made by the parties in this case that would make it difficult or impossible for you to serve as a juror and render an impartial honest verdict?

Is there any reason why you could not give the plaintiff or the defendant a fair trial?

Finally, there are those of you who are thinking of a matter relating to your ability to sit on this jury for a reason that I perhaps have not specifically asked you

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about. Please consider this question, is there any other reason that you know of that would affect your ability to sit on this jury and render a fair and impartial verdict for either the plaintiff or the defendant?

If you would please be thinking about those questions for a moment, I'm going to ask for a brief side-bar with counsel.

(Side-bar conference held off the record.)

THE COURT: Unless you think your hearing has been affected, let me explain that that is a system whereby we are allowed to talk without you hearing us. It generally has worked very well, but I do have to make certain, did any of you hear any of the conversation that we were having?

I want you to know that's a considerable investment by you as taxpayers of the United States. In that limited respect, it was worthwhile, okay.

I have another question I would like to ask. Ladies and gentlemen, do any of you or members of your immediate family, to your knowledge, have investments in IBM, Sun Systems, Novell or Microsoft? If so, would you please stand.

Ms. XXXXX. I don't want you to disclose too much personal information.

JUROR NO. 3: I know at one point my father, who is now deceased, had some stock with Microsoft. I am

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unaware if it was ever sold, if my mother still has it, or what has even happened to this stock. I wouldn't be surprised if it was sold upon my father dying.

THE COURT: All right. Thank you.

JUROR NO. 4: Juror number four. One of my siblings owns stock in IBM as well as myself.

THE COURT: You own stock in IBM?

JUROR NO. 4: I do own stock in IBM.

THE COURT: A considerable amount, small amount?

JUROR NO. 4: A couple hundred shares.

THE COURT: Thank you.

JUROR NO. 11: Juror number 11. My grandparents own a considerable amount in IBM.

THE COURT: Your grandparents?

JUROR NO. 11: Yeah.

My sister owns stock in Sun and IBM. And my family trust has stock in IBM.

THE COURT: A large amount, small amount?

I don't know her amount. My family trust is not a large amount.

THE COURT: Thank you, ladies and gentlemen.

Now if I may have all of those who feel that you need to answer the questions that I asked, that I indicated I would like you to come back into the jury room one at a time, would you please stand so we can take your numbers.

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Again, all those who previously indicated that you were familiar with the case or read something or heard something or had seen something about the case, I would like you to stand again so we can make certain we have your numbers. Is there anyone else who feels as if they need to come in and answer the questions that I just asked you?

Do you have them all, Sandy?

Let's just go through them, if you would, please, quickly, beginning with you, Ms. XXXXXXXXX. Give us your numbers.

JURORS: 15, 18, 23, 26, 37, 44, 45.

THE COURT: All right. Thank you.

Ladies and gentlemen, while this happens, we're going to take a recess. I'm sure that some of you are probably grateful for that. Let me just give you some instructions during the course of this. This is really quite important. Number one, I do not want you to discuss this case with anyone. I don't want you to visit and surmise or call anybody or anything at all. No discussion about this case.

Secondly, if in the course of this break you are to run into someone you see sitting at these tables in the hallway or restroom, do not say hi to them, do not acknowledge them, don't high-five them, don't do anything. I do not want any kind of interaction taking place between

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you and them and they are, in turn, instructed not to have any with you. If you pass them in the hall and they don't acknowledge you, please do not be offended. Don't think they are not friendly. They are simply doing what the Court has asked them to do.

I think this will probably take 45 minutes. So I'm going to ask all of you to be back in your seats at 12:00 o'clock. There are restrooms in the hallway. There is a break room of sorts with a very limited supply of anything downstairs. But those of you who stood up, if you would please stay in the courtroom until you have been brought back into the jury room. The rest of you may take a 40-minute recess. Thanks.

(Recess)

(Whereupon, the following proceedings were held in the jury room.)

THE COURT: My intention is to dismiss for cause number 15. We'll not have her come back.

THE CLERK: XXXXXXX, number 18.

THE COURT: Any objection to Mr. XXXXXXX being dismissed for cause?

MR. BRENNAN: I'm not quick enough.

THE COURT: Employment.

15 and 18 we'll not bring back.

THE CLERK: Twenty-three?

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THE COURT: Bring back.

THE CLERK: Number 26?

THE COURT: Bring back.

THE CLERK: Thirty-seven?

THE COURT: Bring back.

THE CLERK: Forty-four and 45?

THE COURT: Bring them both back. I just needed to take care of those two, counsel.

You understand they will come in and sit down. We'll ask them questions. I'll give each of you an opportunity to ask questions as well, just one of you per side. So who will that be?

Mr. Hatch, Mr. Brennan.

THE CLERK: Mr. XXXXXXXX, juror 23.

THE COURT: Mr. XXXXXXXX, tell me what it was you found yourself answering yes to in that list of questions, would you please.

JUROR NO. 23: The question you asked about what have you read about this case. I just went on line yesterday to see what type of case I would be coming to today. I just looked at your calendar. Then I just Goggled SCO vs. Novell, and read a little bit. Read probably 15, 20 minutes about what has happened in the case for the last -- started in '95 possibly, so --

THE COURT: Mr. XXXXXXXX, did you come out of that

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examination with an opinion as to how this case ought to be decided?

JUROR NO. 23: No.

THE COURT: Did you understand everything that you were reading?

JUROR NO. 23: For the most part. There were some legal terms in there that I didn't recognize or come across previously, but it was more or less kind of a brief synopsis of what was going on pertaining to two companies, so not in great detail.

THE COURT: Mr. XXXXXXXX, I'm sure you can understand that it is very important that I do everything I can to make certain that no juror is serving on this jury who already has a preconceived notion about this case and how it ought to turn out, to make certain they don't have a view, well, you know, that company should not have done this or that company should not have done that, whatever the case may be. Do you have any of those notions as you sit here today?

JUROR NO. 23: I don't. Like I say, it was just kind of a brief background. I didn't get into the details. I would say what we went into today I learned just as much about Linux and UNIX and Novell and SCO. I mean, it went into a little bit about a settlement of $25 million -- $2.5 million. Partially reversed. That's why we're here to hear

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more about that. I think that settlement was for Novell, I believe. And now it's been partially reversed, I think. Like I say, it was -- that's about all I know.

THE COURT: Was there anything else in any of those questions I asked you that you felt you need to answer here in the jury room?

JUROR NO. 23: No.

THE COURT: Do you have any questions, Mr. Hatch?

MR. HATCH: Mr. XXXXXXXX, you indicated that you did a Google search for SCO and Novell, correct?

JUROR NO. 23: Yeah.

MR. HATCH: Other than the Wikipedia sites?

JUROR NO. 23: The next link was legal, I think. I didn't read anything. I just kind of went to that site and just -- I think it was a summary of the previous court case. Other than that, I didn't read anything in the newspaper article that was out, but I assume most of what was in the newspaper is similar to what I read in Wikipedia.

MR. HATCH: You did say you read the Daily Herald and Deseret News. Have you ever read anything in the Daily Herald?

JUROR NO. 23: I haven't, no.

MR. HATCH: Based on what you saw in the Wikipedia article, did you view the Wikipedia article as either pro or con for either of the parties?

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JUROR NO. 23: It seemed really fair. It didn't seem -- just a real brief synopsis of what went on since, I believe, '95. Fair to either side.

MR. HATCH: You indicated you felt you could be fair. The article didn't cause you to lean one way or the other?

JUROR NO. 23: No.

THE COURT: Mr. Brennan, anything?

MR. BRENNAN: No. Thank you.

MR. HATCH: Did you discuss anything you saw with anyone else?

JUROR NO. 23: My wife, but she and I both haven't had any dealings with Novell or SCO. She thought maybe it was more of a glamorous trial that I was going to, what trial are you going to.

MR. HATCH: You saw the --

JUROR NO. 23: I looked at the calendar real quick and realized it was a trial I knew nothing about. I decided to read a little bit, which I actually thought, as I was doing that, I probably shouldn't be doing this.

THE COURT: You have good instincts, Mr. XXXXXXXX. Follow them in the future.

Anything else?

MR. HATCH: That's it, Your Honor.

MR. BRENNAN: No. Thank you, Your Honor.

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THE COURT: Thank you, Mr. XXXXXXXX. You may go back to the courtroom. You can take your recess until noon, okay.

THE CLERK: Ms. XXXXXXX, number 26.

THE COURT: Take a seat, please, Ms. XXXXXXX.

JUROR NO. 26: Thank you.

THE COURT: Ms. XXXXXXX, what was it you felt you needed to reveal to us here?

JUROR NO. 26: You asked if we heard of a pending case. Of course I've heard my husband and my sons talk a little about the fact there is a dispute between Novell and UNIX, and I have heard talk. I haven't formed a judgment one way or the other, but I have heard them speaking about it.

THE COURT: So the only exposure you have had to this case is hearing your husband and your son talking about it?

JUROR NO. 26: My sons.

THE COURT: Did either of them express a strong viewpoint about the merits of the case, who ought to win or anything of that sort?

No.

THE COURT: It was just a discussion that the case was taking place?

JUROR NO. 26: Uh-huh. (Affirmative). They have

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discussed it back and forth, you know.

THE COURT: What kind of things have they said?

JUROR NO. 26: I don't really remember because I take care of the bookkeeping end of the business and I let them worry about all the other stuff. There is one other thing, though, we do have a small part-time business of sorts where we do subscribe to Microsoft Partnership -- Microsoft Partners -- is that what it's called?

THE COURT: All right. Ms. XXXXXXX, I hope you can understand, it's very important no juror sit on this case who is going to have a bias or a prejudice or any type of preconceived notion about how the case ought to turn out. As you sit here right now, can you tell me do you have a bias or prejudice, do you have a notion about how you think this case should end up?

JUROR NO. 26: No, I don't. I do know I have to be very, very careful not to tell my husband and sons don't discuss it ever when I'm around, because as they read in the papers, they likely would, but I would -- I personally would not have any bias or any preconceived notions or anything.

THE COURT: All right. Thank you.

Any questions?

MR. HATCH: Have you done any reading on line yourself?

JUROR NO. 26: No.

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MR. HATCH: Do you have any opinion about Linux?

JUROR NO. 26: No. I just use whatever operating system my husband puts on for me, that's what I use.

THE COURT: Anything?

MR. BRENNAN: No questions. Thank you, Your Honor.

THE COURT: Thank you, Ms. XXXXXXX.

JUROR NO. 26: Thank you.

THE CLERK: Juror 37, Ms. XXXXXXX.

THE COURT: You indicated that you had read or seen or heard something about the case; is that right?

JUROR NO. 37: Yes, just a small bit.

THE COURT: Tell us what it was.

JUROR NO. 37: Just the article about the suit coming up between the two. I since have recognized I think I am a neighbor to one of the plaintiffs.

THE COURT: That would be?

JUROR NO. 37: I think their last name is McBride. They live in Oak Lane.

MR. HATCH: Where do they live?

JUROR NO. 37: Oak Lane.

MR. HATCH: Yeah.

THE COURT: Neighbors to them?

JUROR NO. 37: Yes. So in homeowners meetings, I have met them. And then the last homeowners meeting, after

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they -- it was just the wife left, people in the group were talking about the lawsuit coming up, and their house had been for sale, she was talking about the concern there.

THE COURT: I'm glad you remembered that. As you sit here, do you have a notion about how this case ought to turn out based on what you have read or on that discussion, or the fact that you have a neighbor who would be involved in this matter?

JUROR NO. 37: No, just it may be awkward.

THE COURT: Awkward. Okay.

Any questions?

MR. HATCH: The neighbor you know that's out there with SCO, would you recognize him or his wife now?

JUROR NO. 37: I recognized his wife in the courtroom today, yes.

THE COURT: That's what jogged your memory?

JUROR NO. 37: Yes. I thought as they were talking about -- because I know -- I followed it a little bit in the paper, so I knew that neighbor was a SCO officer. So I thought possibly it would be. But because they have small children, mine are grown, I wasn't real acquainted with that guy other than homeowners meetings.

MR. HATCH: When you have talked with some of the other neighbors about the house was for sale, there was a lawsuit, did you connect the two somehow? Did you connect

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the house being for sale and the lawsuit?

JUROR NO. 37: Yes, I did. Yes, I did.

MR. HATCH: In what way?

JUROR NO. 37: Just knowing things get tough, you may start shutting down income and have to put your house up. That was the intimation that was made among the group.

MR. HATCH: Do you have any personal feelings about the neighbors? I think you said you got to know them, met them through a homeowners association?

JUROR NO. 37: Correct.

MR. HATCH: Sometimes those can be friendly, sometimes hostile.

JUROR NO. 37: It was not hostile, no.

MR. HATCH: All right. You think you can be fair, then?

JUROR NO. 37: I think so.

MR. ACKER: Ma'am, did I hear you right, it would be awkward -- you would feel awkward?

JUROR NO. 37: Yeah.

MR. ACKER: Explain.

JUROR NO. 37: I realized that the wife recognized me after she was looking through the group and she was not happy to see me there.

MR. ACKER: Okay.

THE COURT: Thank you, Ms. XXXXXXX, very much.

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THE CLERK: Ms. XXXXX, number 44.

THE COURT: Ms. XXXXX, you stood because you had read something about the case?

JUROR NO. 44: Yeah. I told my family I was doing jury duty. They asked what the case was about. I don't know. Last night I got on line. I didn't read a lot because I didn't feel like it would be ethical to read a lot. I did read it was going to be a three-week case and kind of panicked. Honestly, your description of the case made more sense than what I read. Does that make sense? I just heard it was between Novell.

THE COURT: I'll take that as a considerable compliment.

JUROR NO. 44: I really skimmed. I was just trying to see what it was about. It was between Novell, and the other company I never heard of before. That it was a dispute, like you explained.

THE COURT: Did you learn enough that you came away from that brief reading with an idea about who ought to win?

JUROR NO. 44: No.

THE COURT: No inclination at all?

JUROR NO. 44: I didn't read enough because I didn't feel like it was ethical of me to do so.

THE COURT: Your instinct, again, was correct.

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Ms. XXXXX, it's important that we make certain that no one sits on this jury who has a bias or a prejudice or a preconceived notion about how this case ought to turn out. As you sit here right now, do you have anything of that sort?

JUROR NO. 44: I don't know. The one thing that hit me as I was reading, as you said, it was based on -- see, I'm not a computer person. The Linux system was kind of what I read. I thought that was a free version anyone can use. That struck me as kind of odd there would be a lawsuit involving what I thought was a free system. The rest, unlawful, I didn't read very much. I don't understand that part.

THE COURT: As you sit here, is there any reason why you don't think you should be allowed to sit on this jury?

JUROR NO. 44: That I shouldn't be allowed to sit, no. It would be a hardship. I'm a junior high school teacher and my students would have a substitute for three weeks, but we could make do. We could make do.

THE COURT: Any questions for Ms. XXXXX?

MR. HATCH: You indicated your husband had done an internship at Novell through school.

JUROR NO. 44: Yes. He was going to BYU. Another student in our neighborhood we went to church with, I think

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they worked at Novell, were quitting. They knew there was an opening for an internship. My husband was doing financials. And so he worked part-time, 20 hours a week, if I remember correctly, for about a year. He did collections where he worked with accounts that weren't currently being paid. It usually was with school districts, kind of a problem with the financial secretaries, it wasn't being taken care of. Like I said, he worked for about a year during the summer. I was working at the time. And it was a stretch for him to work and go to school, so I convinced him to quit and just work so he could focus on school. That was, I think, four years ago. He worked for three years. Now he's back doing an MBA this year.

MR. HATCH: Was his experience at Novell a positive one or a negative one?

JUROR NO. 44: It was a good resume builder. It was a good internship when internships were hard to find. I don't know that I have positive or negative feelings. Like I said, it was a job when it was hard to find a job.

MR. HATCH: Would that cause you to lean one way or another towards Novell?

JUROR NO. 44: I honestly do not think so. I would understand and be very respectful of you not wanting me on the jury because of that relationship.

MR. HATCH: Thanks for your honesty.

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THE COURT: Anything, counsel?

MR. BRENNAN: No.

THE COURT: Thank you, Ms. XXXXX.

How many more do you have?

THE CLERK: Just one.

THE COURT: We'll never get to these. Right now I'm wondering if it's worth our time to bring another one in. Would any of you object if we did not have -- which one is it?

THE CLERK: The older lady in the back.

THE COURT: Just go ahead and tell her she doesn't need to come back, okay.

THE CLERK: But you can't do your causes until I come back.

THE COURT: If there's any doubt who runs things around here.

Counsel, just so you know, what I'll now do, I'll tell you those I intend to dismiss for cause. I will tell you the reason why. After you've heard that, if any of you want to argue against my decision, I'll give you a chance to do so. Then I'll give you an opportunity to argue for those additional dismissals for cause, okay.

I would dismiss juror number two because of her student full-time status. Juror number ten, same problem, unpaid work, can't miss. Ms. XXXX obviously, because she's

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pregnant. Juror number 15 because of the employment. Same for juror number 17, employment. Juror number 18, employment. Juror number 21, employment.

Am I going too fast?

MR. HATCH: No.

THE COURT: Juror number 30, employment. Juror number 31, who is a student. Juror number 34 because of his employment. Juror number 37 because I was concerned with her answer about having a neighbor. Juror number 38 because of their student status. Juror number 41 for a number of reasons, unless someone wants to --

MR. HATCH: After the trial I'll share my notes.

THE COURT: Juror number 46 because of his conference, the fact he's got a brother getting married.

Again, is there any of those I just gave you that any of you would like to argue against being dismissed for cause.

MR. HATCH: Not from us, Your Honor.

MR. BRENNAN: No.

THE COURT: Is there anyone else that you want dismissed for cause?

MR. BRENNAN: I would like to talk about juror number 22, Your Honor.

THE COURT: This is the lady who knows Mr. Tibbetts from 20 years ago.

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MR. TIBBETTS: Do you want me to step out?

MR. BRENNAN: No, Ryan. My view of that is, from my own experience in the LDS culture, when people are in the same ward, they do form a unique and special relationship. They may not be close personal friends, but there's a tie that develops. And I think that presents an awkwardness of its own sorts.

THE COURT: Mr. Hatch, do you wish to respond?

MR. HATCH: I would say ten years ago, that's sometime ago.

THE COURT: I think it's best that we dismiss juror number 22 for cause, then. The reason why, I don't want the possibility that after she serves, it doesn't go well for Mr. Tibbetts' client, they met on the street, she's worried what happens if I see him. That's something we don't need to have.

THE CLERK: Was number 34 cause?

THE COURT: Yes.

MR. HATCH: What number did you say, Sandy?

THE COURT: She asked about 34.

Is there anyone else who you want to argue should be dismissed for cause?

MR. HATCH: Your Honor, four would be the first one we have. This woman has got a -- she claims to have been working 25 years for software developers. She's on my

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list. She owns IBM stock. I worry about her feeling she has a financial interest. She had a couple hundred shares. So I worry about her financial concerns. The computer system she's working with her employer as well concerns me. She may be more of an expert than she really is.

THE COURT: Response.

MR. BRENNAN: We disagree. Three reasons. First, the mere ownership of IBM stock should not be a disqualifier. IBM is not a party to the action. Just on the issue of IBM, the only issue that deals with IBM in this case is a court decision, not a jury decision. And I am not -- certainly I know what IBM is trading at. If I did the math, a couple hundred shares is not a monumental amount of money in any event.

THE COURT: Is there anything in this case that's going to make it appear to the jurors that the outcome of the case will affect stock value of IBM?

MR. HATCH: As we all know, the follow-up lawsuit is IBM.

THE COURT: Is there anything about that that's going to have a juror thinking my IBM stock value is going to be affected by this decision?

MR. HATCH: I believe so. I believe they are going to be challenged. We're going to put on evidence that Novell received money from IBM, and that's part of it.

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MR. BRENNAN: Well, whether that evidence is admitted or not I suppose remains to be seen. Again, IBM is not a party to the litigation. So even if evidence were admitted on that subject, the only party that has a potential liability is Novell and/or SCO on the counterclaim. So that's a pretty attenuated connection.

In terms of employment, what she -- what I heard her say is that she's aware that the company she works for has some platforms that use Linux. She has no experience with Linux. She does not use Linux in her particular responsibilities. And even if she were a Linux users, Linux is not on trial here. And so that issue doesn't appear to be a disqualifier.

THE COURT: I will state this: I do not intend to dismiss for cause jurors simply because they are familiar or work with Linux. I think that's too attenuated to do that. I am, however, concerned if the evidence is admitted, you perhaps will argue it ought not to be, ultimately if I decide it is, I am worried about jurors who have personal investments in IBM drawing a connection. I just don't think it's necessary that we run that risk. So for that reason, I will dismiss number four.

MR. HATCH: Your Honor, number 23, XXXXXX XXXXXXXX. He's the one we just brought in and talked about reading about the case. I think the thing that concerns us

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most about that is, in particular, he talked about the prior lawsuit before Judge Kimball. Apparently, of all the things he read about was that Novell had apparently won what he recalled a two and a half million dollar settlement. The last thing we want is a jury who is going to go back into the jury room and Novell won the first round of this. He seems --

THE COURT: The only problem with that is he also acknowledged he found out that decision was reversed. It, frankly, could play on either side. Novell won it first.

MR. HATCH: We're all playing -- we're all playing a guessing game in this whole process, I agree.

MR. BRENNAN: He also said he learned more about the case in the Court's limited introduction than he did in any article that he read. Nothing that the Court disclosed today would indicate a prejudice or an interest one way or another, it was a neutral description, and he said he learned more that way.

I do think that he didn't read any of the blogs or other sites that are following the case that may have said something -- I'll use the term more insightful or more weighted on one side or the other. Wikipedia material has never been cited as a site. That's the site that's been following the case, like others. I don't think we heard anything from him that suggests he would be prejudiced or

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biased, no inquiries, nothing I learned would swing me one way or the other.

MR. HATCH: He's also the one we talked to. For sure he's like the most likely to go on line, I know.

THE COURT: But I also think he was told by the Court your instincts were good. His embarrassed reaction to that would tell me that he's not going to because of what he now knows. He can go either way.

I'm surprised both of you aren't saying let's kick him off to make certain. If you're going to argue against it, I'm going to keep him on. He was very sincere in saying he has no prejudice, no bias, and I'm just going to have to deny your request. Okay.

MR. SINGER: Lodge an objection to that.

THE COURT: Your objection is certainly noted.

Anyone else, Mr. Hatch?

MR. HATCH: Yeah, 26. Twenty-six, this is the one we just had in. She seemed like a nice lady. She spent the whole morning talking about, constantly, her sons and her husband. And I do have some concern. They talked about this particular dispute. They talked about working on Linux. And she seems not terribly knowledgeable, but also seems terribly easily influenced. I'm somewhat concerned about her family being involved.

THE COURT: I would share that concern. I don't

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think she sits here today with any preconceived notion. The temptation to discuss it with her husband and son, them to discuss it with her once they found out this is the case.

MR. BRENNAN: It's not enough to disqualify her. I think these jurors are going to be admonished not to discuss the case. She said that herself, she would be very careful. My concern is that any one of the jurors could fall into this rubic --

THE COURT: Well, I think she's different because of her constant reference to her son and husband's business, and so on. I think, out of an abundance of caution, because my fear is she's going to be somehow influenced by them during the course of this trial, whether inadvertent or advertent, I'll dismiss her for cause, number 26.

Mr. Hatch, anyone else?

MR. HATCH: The only one left is number 44, who just came in. She's the one with the husband who interned at Novell. Sounds like, overdramatically, for the record, a financial burden. He worked for a year there. Also read about the case, although she didn't seem to have a ton of knowledge about it.

THE COURT: Mr. Hatch, I heard nothing that would disqualify her. To the contrary, I think she probably would be a very good juror.

MR. HATCH: The only thing I would add, she said

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at the end, I would understand if you felt I would need to --

THE COURT: I think she would like to get off. She didn't want to miss her teaching. I won't dismiss her.

Let me go through the list once more so we all have the same list. It will be noted on the blue sheet that will be handed back and forth to you. Let's make certain she has the right list.

Those who are already dismissed for cause will be jurors number two, four, ten, 11, 15, 17, 18, 21, 22, 26, 30, 31, 34, 37, 38, 41 and 46. All right.

Will you go find out about number 36, Tom.

Maybe you better do that. Can you go find Mr. XXXXXX, and find out -- he should be in there. Do you remember what he looks like? Middle aged, balding.

You may recall, Mr. XXXXXX, juror 36, indicated he may have a concern that his mother is seriously ill in St. George and he has to go down there. Mr. Copeland went to find out.

MR. SINGER: Will we also have a few minutes after we finish?

THE COURT: What we'll do is leave plaintiffs in here.

Ms. Malley, will you take defendants into our conference room.

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How long will you need to discuss this? Ten minutes?

MR. BRENNAN: Fifteen, if we could.

THE COURT: The jury will be sitting in there, but that won't hurt. I want to give you enough time. Again, you each get three. And plaintiffs will go first. When Ms. Malley hands you the blue sheet, mark the person you want to strike. She will hand it back. After defendants have made their third one, plaintiffs hand it back again.

If this was a criminal case, because we had an alternate, we would have selected 12 jurors and given another preemptory. It's not. We've checked. I'm confident you still get three, although we have one alternate, take the 13.

MR. SINGER: Does that constitute a final waiver, the three strikes?

MR. ACKER: In the same round, Your Honor?

THE COURT: No, passing, okay.

MR. ACKER: If we were to pass and they hadn't exercised their preemptories, they could still exercise another preemptory?

THE COURT: They could, yes. If you passed then.

MR. ACKER: Once you pass, you are done?

THE COURT: Yes.

What did he say?

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MR. COPELAND: He talked to his sister. She's fine. He thinks he will be okay.

THE COURT: Okay. Is there anything else, then?

MR. ACKER: Not on our behalf, Your Honor.

THE COURT: After we select the jury, what I will do is we'll seat them, dismiss the others. I will give them preliminary instructions. Then we'll excuse them for the afternoon, okay. I won't read the uncontroverted facts. I'll do that right before you do your openings. Is that agreeable to all of you?

THE CLERK: Judge, we'll let them come in here and eat.

THE COURT: We'll give you 15 minutes, then.

(Recess)

(Whereupon, the following proceedings resumed in the courtroom.)

THE COURT: Ladies and gentlemen, thank you for your patience. This took a little bit longer than we expected, but we're almost through. I indicated earlier this morning that the attorneys in this case have the opportunity to exercise preemptory challenges, meaning you can be stricken as a juror without them having to give you any reason. This process will take a few minutes and it will involve Ms. Malley handing back and forth a blue sheet with your names on it. During the course of this, if you

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find the attorneys looking at you, glaring into your eyes and trying to remember what it was you said, don't be nervous. This is just what happens.

Ms. Malley, if you would.

Ladies and gentlemen, Ms. Malley is now going to read the names of the 13 jurors. She will also, with that name, give you a number. And those of you whose names are called, please pay attention to the number because that will be your juror number for purposes of sitting in the juror box with juror number one up at the top on the right-hand side through six, and then juror number seven on the bottom right through juror 13.

After your names are read, if you will please make your way forward and sit in the juror box. As soon as we have all of them seated, we'll be able to dismiss the rest of you.

THE CLERK: Jury number one is XXXX XXXXXX, number two is XXXXXX XXXXX, number three is XXXXXXX XXXXXXX, number four is XXXXXX XXXXXXX, number five is XXXXXXX XXXXXXXX, number six is XXXXX XXXXXXX, number seven is XXXXXX XXXX, number eight is XXXXX XXXXXX, number nine is XXXXXX XXXXXXXX, number ten is XXXXXXX XXXXXX, number 11 is XXXXXXX XXXXX, number 12 is XXXX XXXXXXX, number 13 is XXXXXXX XXXXXX.

THE COURT: Can I get those of you whose names

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were read to please come and sit in the jury box.

All right. Ladies and gentlemen, as for the rest of you, I again want to express gratitude to you for being here and participating in this process. It was important that we have all of you here so that we may select the best jury we could. You may now be excused. You go with our gratitude. Thank you.

MR. HATCH: May we, Your Honor?

THE COURT: If you would, please.

Ladies and gentlemen of the jury, I'm going to ask you all to now please stand and raise your right hand. Ms. Malley is going to give you an oath, which I want you to listen to very carefully because it does dictate how you are to conduct yourselves as jurors during this trial.

If you can affirm, please say yes at the end of it.

(Jury sworn)

THE COURT: Ladies and gentlemen, what we're now going to do is I'm going to give you some brief instructions that are intended to outline for you how you are to conduct yourselves as jurors during the course of trial and also to give you some indication of what will transpire during the trial. After I've done this, you'll be excused. In the jury room there will be some refreshments for you, but then you will be done for the day. If for some reason you don't

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want those refreshments, that will be fine. You are not obligated to eat anything. Okay.

Ladies and gentlemen, it will be your duty to find from the evidence what the facts are. You, and you alone, are the judges of the facts. You will then have to apply to those facts the law as the Court will give it to you. You must follow that law whether you degree with it or not.

Nothing the Court may say or do during the course of the trial is intended to indicate nor should be taken by you as indicating what your verdict should be.

Justice through trial by jury must always depend upon the willingness of each individual juror to seek the truth as to the facts from the same evidence presented to all the jurors and to arrive at a verdict by applying the same rules of law as given in the instructions of the Court.

The evidence from which you will find the facts will consist of the testimony of witnesses, documents and other things received into the record as exhibits, and any facts the lawyers agree or stipulate to, or that the Court may instruct you to find.

Certain things are not evidence and must not be considered by you. I will list them for you now.

First, statements, arguments and questions by lawyers are not evidence.

Second, objections to questions are not evidence.

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Lawyers have an obligation to their clients to make an objection when they believe evidence being offered is improper under the rules of evidence. You should not be influenced by the objection or by the Court's ruling on it. If the objection is sustained, ignore the question. If it is overruled, treat the answer like any other. If you are instructed that some items of evidence is received for a limited purpose only, you must follow that instruction.

Third, testimony that the Court has excluded or told you to disregard is not evidence and must not be considered.

And, fourth, anything you may have seen or heard outside of the courtroom is not evidence and must be disregarded. You are to decide this case solely on the evidence presented here in the courtroom.

This is a civil case. Plaintiff has the burden of proving its case by what is called the preponderance of the evidence. That means plaintiff has to produce evidence which, considered in the light of all the facts, leads you to believe that what plaintiff claims is more likely true than not. To put it differently, if you were to put plaintiff's and defendant's evidence on opposite sides of the scales, plaintiff would have to make the scales tip somewhat on its side. If plaintiff fails to meet this burden, the verdict must be for defendant.

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Defendant has also brought a claim for relief against plaintiff called a counterclaim. On this claim, defendant has the same burden of proof that plaintiff has on its claim.

Those of you who have sat on criminal cases will have heard of proof beyond a reasonable doubt. That requirement does not apply to a civil case and you should therefore put it out of your mind.

In this particular civil case, one of the elements of the claims made by the parties has a different burden of proof called clear and convincing evidence. That means the party making those claims has a higher burden than preponderance of the evidence. But it does not require proof beyond a reasonable doubt. Clear and convincing evidence is evidence that shows it is highly probable that what is claimed is true. It is evidence that produces in your mind a firm belief as to the facts at issue. For such evidence to be clear and convincing, it must at least have reached the point where there remains no substantial doubt as to the truth or correctness of the claim based upon the evidence. I will instruct you further after you hear the evidence which element of the parties' claims requires this heightened burden of proof. The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony.

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You should take into consideration their demeanor upon the witness stand, their apparent intelligence or lack of intelligence, their means of knowledge of the facts testified to, the interest, if any, which any witness may have in the outcome of this trial, the prejudice or motives, or feelings of revenge, if any, which have been shown by the evidence. In so doing, you may take into consideration all the facts and circumstances in the case and give such weight as you think the same are entitled to, in light of your experience and knowledge of human affairs. During the trial it may be necessary for me to talk with the lawyers out of your hearing, either by having a bench conference here while you are present in the courtroom, or by calling a recess. Please understand that while you will are waiting, we are working. The purpose of these conferences is to decide how certain evidence is to be treated under the rules of evidence and to avoid confusion and error. We will, of course, do what we can to keep the number and length of these conferences to a minimum.

Next, a few words about your conduct as jurors. I want you to pay particular attention to what I am about to say to you.

First, I instruct you that during the trial you are not to discuss the case with anyone, including fellow jurors, or permit anyone to discuss it with you. Until you

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retire to the jury room at the end of the case to deliberate on your verdict, you simply are not to talk about this case. I will stress that means family, friends, neighbors, strangers on the street. You just simply are not to discuss the case.

Not talking about this case means not talking about it in any way, including by Internet, e-mail, text message and instant communication devices or services, such as cell phones, Blackberries, iPhones, or social networking Web sites, such as Facebook, Twitter, My Space, Linkedin, YouTube, and so on.

Second, do not read or listen to anything touching on this case in any way. Do not watch or listen to any news programs or reports concerning this trial on television or on the radio, and do not read any news accounts of this trial in a newspaper, on the Internet, or on any instant communication device, including, again, Facebook, Twitter, and so on. If anyone should try to talk to you about this case, bring it to my attention immediately.

Third, do not do any research or make any investigation about this case on your own.

Finally, do not form any opinion until all of the evidence is in. Keep an open mind until you start your deliberations at the end of the case.

The Court will permit jurors to take notes during

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the course of this trial. But if you do, leave them in the jury room when you leave at night. And, remember, they are for your personal use. I will note that notebooks will be made available to you, so you don't need to bring your own.

You, of course, are not obligated to take notes. If you do not take notes, you should not be influenced by the notes of another juror, but rely upon your own recollection of the evidence.

Notetaking must not be allowed to interfere with the ongoing nature of the trial or distract you from what happens here in court. Notes taken by any juror, moreover, are not evidence in the case and must not take precedence over the independent recollection of the evidence received in the case. Notes are only an aid for recollection and not entitled to any greater weight than actual recollection or the impression of each juror as to what the evidence actually is. Any notes taken by any juror concerning this case should not be disclosed to anyone other than a fellow juror.

At the end of the trial you must make your decision based on what you recall of the evidence. You will not have a transcript of the trial. I urge you to pay close attention to the testimony as it is given.

The trial will begin tomorrow morning. At that time each side will make an opening statement. An opening

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statement is neither evidence nor argument; it is an outline of what that party intends to prove, offered to help you follow the evidence.

Next, plaintiff will present its witnesses and defendant may cross-examine them. Then defendant will present its witnesses and plaintiff may cross-examine them.

At the close of the evidence, the Court will give you instructions on the law, after which the attorneys will make their closing arguments to summarize and interpret the evidence for you.

You will then retire to deliberate on your verdict.

Ladies and gentlemen, I now will ask Ms. Malley to assist you into the jury room. Again, as I indicated, there should be some light refreshments. We'll begin promptly at 8:30 in the morning. I ask that you please make certain you're all here well in advance of the 8:30 hour so we do not have to wait for any late juror. And I want you to pay particular attention to the fact that I have now instructed you on your conduct both in the courtroom and in the jury room and outside. In the morning I will ask you whether or not you have complied with those things that the Court has instructed you to do and those that you are not to do.

Ms. Malley, if you would please assist the jury into the jury room.

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(Jury excused)

THE COURT: Counsel, let me give you a couple of brief rulings on those issues that were raised earlier today. First of all, the Court will presume that the minutes of the Novell board meeting will be authenticated by a witness as a business record. Based on those presumptions, the Court will allow you to use it in your opening based upon the assumption it will then be subsequently admitted into evidence.

As to the reference to the copyright filings by defendant, the Court will allow you to use it. The Court has again reviewed the authorities and does not believe it is privileged, and therefore it will be permitted. You may do so.

Who will be making your opening tomorrow, by the way?

MR. SINGER: Your Honor, I will be doing the principal part of the opening and then turning it over to Mr. Hatch.

THE COURT: All right.

MR. BRENNAN: Your Honor, I will be making the entire presentation for Novell.

THE COURT: Thank you, Mr. Brennan.

Counsel, do any of you have -- let me -- one other thing. I'm going to presume that one or both of you want to

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invoke the exclusionary rule and therefore the witnesses will be out of the courtroom until they are called?

MR. BRENNAN: Yes, Your Honor. In fact, I think at the pretrial conference we agreed that shall be the order.

THE COURT: Is there anything else, then, we need to deal with here today?

MR. SINGER: I do not believe so, Your Honor.

THE COURT: Mr. Singer, thank you.

Mr. Brennan, do you have anything?

MR. BRENNAN: Yes, Your Honor, just a question about the scope of the exclusionary rule. We would understand likely that that would apply to some of the blogs that might be running on this case and providing commentary. Would that be in the Court's mind as well? In other words, there could be commentaries that are on line that would be reporting the testimony of the witnesses on a daily basis.

THE COURT: To me, the exclusionary rule means you don't have witnesses in the courtroom. What is it you are asking me, whether or not those witnesses will be permitted to --

MR. BRENNAN: They ought not be reviewing materials that would be reporting on --

THE COURT: I would certainly agree that would be included with the exclusionary rule.

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Mr. Singer.

MR. SINGER: We agree, Your Honor.

THE COURT: Will you please make certain that your witnesses are so informed. I do appreciate you bringing that to our attention.

MR. BRENNAN: We've done that with our witnesses, Your Honor.

THE COURT: Good.

Tomorrow on your openings, counsel, I will keep track of the time. I will inform you when you get close. All right.

MR. SINGER: Your Honor, one question. Do you have any restrictions on moving around the courtroom during opening?

THE COURT: As long as you can be heard, Mr. Singer. That's the only thing.

MR. SINGER: Thank you.

THE COURT: All right. Counsel, we do have hearings this afternoon, so I would ask that we clear the tables to the extent you can.

And if there is nothing else, we'll be in recess until 8:30 tomorrow morning.

(Whereupon, the trial was continued to Tuesday, March 9, 2010 at 8:30 a.m.)

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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

[address, phone]


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