For example, beginning on page 22, Morrison & Foerster's Michael A. Jacobs, for Novell, tells us what he thinks of SCO's story, here represented by Boies Schiller's Ted Normand, about rogue lawyers writing the APA differently than they were supposed to. He calls it a "bizarre" legal theory.
I thought you'd like to know about that detail. If you thought this judge missed things, I think it's clear, peeking behind the curtain now, that he did not.
We have it all as text for you, without the line numbers for readability. Enjoy. By all, I mean all that has been made public. The docket reflects that there were redactions:
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
|THE SCO GROUP, INC., a Delaware ||)|
|vs. ||)||Case No. 2:04-CV-139TS|
|NOVELL, INC., a Delaware ||)|
|AND RELATED COUNTERCLAIMS. ||)|
BEFORE THE HONORABLE TED STEWART
March 25, 2010
Jury Instruction Conference
REPORTED BY: Patti Walker, CSR, RPR, CP
[Address], Salt Lake City, Utah [Zip]
A P P E A R A N C E S
For Plaintiff: Jason Cyrulnik
BOIES SCHILLER & FLEXNER
Armonk, New York [Zip]
For Defendant: Rex Sears
Salt Lake City, Utah [Zip]
MORRISON & FOERSTER
San Francisco, California [Zip]
SALT LAKE CITY, UTAH; THURSDAY, MARCH 25, 2010; 3:00 P.M.
THE COURT: Nice to finally see the brains behind
this outfit -- or outfits make an appearance.
I would note that we have with Mr. Normand and
Mr. Jason Cyrulnik; is that correct?
MR. NORMAND: It is, Your Honor.
THE COURT: With Mr. Jacobs, we have Patricia
Svilik, Daniel Muino and Rex Sears. Did I come close to
pronouncing your names, right?
MR. MUINO: Muino, Your Honor. Very close.
THE COURT: In this case, it's Ms. Malley's
writing. I'm hoping, however, that Mr. Normand and Mr.
Jacobs will be the primary spokespersons for the instruction
conference just to keep it under control, all right. You
can stop and consult with the other attorneys any time you
want, but I do need to rely on just one from each side.
Counsel, let me ask you, have you found anything
in regards to the Rule 50 motion issue on special damages,
either of you?
MR. NORMAND: Your Honor, I would say that
although we don't have any case law, we did go back and look
at the Novell interrogatory response on the issue of
damages. We didn't see any identification of any amounts
paid for copyright registration. In our view, that would be
an additional basis for precluding them from pointing to
that in support of special damages.
MR. JACOBS: Your Honor, I believe it's pled in
our counterclaim, we had expended money on copyright
THE COURT: Mr. Jacobs, again, the proposed
instruction in this case -- and we have spent the better
part of the last hour plus looking for any kind of case law
to help us -- would indicate the types of damages
contemplated by a scienter title case are narrow and focus
almost exclusively on the types of things that are described
in the jury instruction. And absent anybody finding
anything to the contrary, the Court feels that it is going
to have to grant the Rule 50 motion because of the absence
of the types of damages that are required.
I would note on the question of constitutional
malice, our analysis of the evidence would be that the Court
could not grant it on that basis because we believe there is
evidence that indicated that Mr. McBride was aware of the
fact that his company may not own the copyrights, he
persisted in making public statements, and a jury -- a
reasonable jury could conclude that there was constitutional
But in the absence of any finding of damages, the
Court is going to grant the motion and we'll just have to do
the work overnight that we must in order to exclude the
counterclaim, any reference to the counterclaim during the
course of -- and what will result is tomorrow morning I will
give you another packet. I'll have to ask if you could use
your fellow attorneys here to go through that to make
certain we've done it properly.
Counsel, let me begin next with the issue of the
Court's decision to exclude Instruction No. 37, the
privilege instruction. Do either of you wish to protest
MR. JACOBS: Yes, Your Honor.
THE COURT: Go ahead, Mr. Jacobs.
MR. JACOBS: It's actually -- I think it's the
order -- the order even here is the first question whether
the Court should instruct the jury that the privilege
applies. Obviously, to the extent the Court did that, the
instruction would go away. We read the cases as directing
the Court to decide if the privilege is applied and then,
arguably, it is a jury issue to decide whether the abuses
have trumped the privilege. I think the case law is pretty
clear that that is the right answer.
The interesting question that we've been wrestling
with -- frankly, wrestling with from the beginning of the
case, Your Honor, is given the elements of slander of title,
if the privilege applies, what malice or inappropriate
intent causes the privilege to go away. Now we have
constitutional malice on top of that. So there are some
interesting cross currents here in terms of verbal
formulations that are used.
If the Court has decided that it is not going to
direct the jury that the privileges should apply -- the
privileges apply, leaving to the jury the issue of abuse,
then certainly the jury should be instructed to decide if
the privileges should apply. I wasn't sure what you were
thinking on that.
THE COURT: Let me explain to you as best I can.
And, counsel, you don't need to stand up for this.
In fact, Mr. Jacobs, if you would loosen your tie like Mr.
Normand has, maybe we'll set the right atmosphere.
MR. JACOBS: I'm going to scoot down so I can see
you, Your Honor.
THE COURT: It would appear to the Court that if
constitutional malice is found, the jury would have to
conclude that there had been -- let me use the exact
language -- a defamatory statement knowing it to be false
and had acted in reckless disregard as to its falsity. And
that same finding is the same finding for the privilege. So
if those are found to be, then the privilege cannot apply.
If they are not found, then it becomes irrelevant. That is
the Court's thinking.
MR. JACOBS: So I think we actually have to parse
the privileges on this one, Your Honor. The analysis is
slightly different. On the recipient's interest privilege,
the verbal formulation for abuse of the privilege is
different from the constitutional malice standard. On rival
claimant's privilege, the words are similar. I think there
is probably some burden shifting that goes on in terms of
what the jury would have to rely on in terms of the
plaintiff piercing the privilege.
But moreover, I think what is important is that
rival claimants -- although it's called a privilege, it's
actually the essence of what is going on in this case. So
one reason we're so committed to having an instruction on
rival claimants, notwithstanding the constitutional malice
standard, is that what we have here are rival claimants to
the UNIX copyrights. So the privilege sounds very directly
on the facts of this case. Therefore, while the words that
are used to describe the way the privilege is abused -- I'm
checking now to make sure I've got this right -- are quite
similar between constitutional malice and rival claimants.
The fact that the jury would be instructed to decide if the
privilege applies and then decide whether the abuse --
whether that privilege has been abused, we think is a very
important think to do in a slander of title case like this.
THE COURT: I think I understand.
MR. NORMAND: Your Honor, our response to that, to
the extent I understood Mr. Jacobs' point, would be he
acknowledges that the jury would not be resolving any
independent issue or question, which would be the simpler
thing to have them do, and instead concedes that he thinks
the language of describing the privelege would be helpful to
Novell potentially. I think, by definition, that is an
inappropriate instruction. It doesn't give the jury
anything independent to assess and it's designed, as I heard
Mr. Jacobs' description, to provide some collateral benefit
THE COURT: Last word on this.
MR. JACOBS: So I think it's important to note
this actually goes all the way back to the beginning of the
disagreements over privileges. In our view, slander of
title requires the making of an unprivileged statement. And
I think that's the way the case law basically lays it out.
So in order to show there's been slander, the plaintiff
would have to carry its burden of showing all the elements
plus unprivileged. It would therefore have to show that the
rival claimant's privilege did not apply, and that
determination would be made by the Court as a matter of law.
And then the plaintiff would have to show that it's abused.
That is a significant hurdle, especially if the Court
decides it as a matter of law.
If Your Honor decides not to decide it as a matter
of law, it is, nonetheless, the plaintiff's burden to show
that the rival claimants privilege does not apply. And the
way the jury would go through that exercise does not
render -- even though there is a constitutional malice
standard in place, the way the jury would go through that
exercise does not mean that it is meaningless. It is
deciding whether the elements of slander of title have been
met, subject to a later downstream determination of whether
constitutional malice has been satisfied. We don't think
that's a trivial thing for the plaintiff to overcome.
MR. NORMAND: Your Honor, should I speak or not
THE COURT: Go ahead.
MR. NORMAND: We thought we showed, and showed
convincingly, that it was the defendant's burden to prove
where the privilege applies across jurisdictions, and that
the Utah Supreme Court has used language -- in particular,
burden shifting language that reflects that fact.
THE COURT: Okay, counsel, I understand your
positions. I am going to have to just decide this one, and
you will either see it or not tomorrow morning. Okay.
MR. NORMAND: Like Christmas.
THE COURT: All right. Mr. Jacobs, you look --
MR. JACOBS: I'm just -- the mechanics of this,
because rival claimants is a point that one might want to
include in closing, if there is any way we could just be
alerted, even if we don't get the final instructions, what
your decision is on rival claimants.
THE COURT: We'll try to communicate that to you
as soon as I have had a chance to go back and consult.
MR. JACOBS: Sure.
THE COURT: Which is the first instruction you
have an issue with, Mr. Jacobs, in the amended packet that
you received today?
MR. JACOBS: Actually, Your Honor, I would like to
read you on the record at this charging conference what we
did this morning on preserving objections, if that's all
right. We just checked the Tenth Circuit standard on this.
It's obviously something we don't want to miss out of a
failure of caution. So out of an abundance of caution,
objections are preserved even if not made at the final
charging conference if to do so would be completely futile
and unavailing. And so I would propose that we all agree on
the record that prior -- that renewing an objection
previously made at this charging conference would be
completely unavailing and futile.
MR. NORMAND: I'm happy to agree with that, Your
Honor. It goes to a question I had as well because I've
seen this happen in a few different ways. But when Mr.
Jacobs complains, I don't know if you want us to reiterate
whatever support we have previously given. But I heard him
to just say that maybe he won't be making old arguments,
only new ones.
THE COURT: The Court's intention was that
anything that was submitted to the Court in writing would be
deemed part of the record, part of the opportunity you have
to object to the charge to the jury. And I would say that
as a blanket rule that would apply. If, however, there is
something about the instruction packet that you received
today that you believe is so important and you think the
Court just doesn't understand, I will not preclude you from
raising it again. To the extent you don't, it would be
because of the finding it would be futile and without
purpose to do so.
Will that cover you both?
MR. NORMAND: I think it does.
MR. JACOBS: Could you be more definitive than
MR. NORMAND: I didn't mean to be cryptic. We
have, I would guess, many fewer issues with the proposed
instructions than Novell. One or two of the issues I bring
out might be mildly redundant of things we've said before.
THE COURT: I don't mind mild redundance. I just
don't want you to restate everything that you've been saying
to each other and also to the Court over the last month or
MR. JACOBS: That's agreeable, Your Honor.
THE COURT: The question is which would be the
first one you have?
MR. JACOBS: Instruction No. 30, Your Honor.
THE COURT: Do you have anything prior to that,
MR. NORMAND: I do, Your Honor, on Instruction
THE COURT: Let's begin with 25-A then.
MR. NORMAND: We would object to the use of the
last two sentences in the instruction. In particular, our
concern is the phrasing of the last sentence which would be
necessary only if the second to last sentence came in. So
as an alternative to getting rid of the last two sentences,
we would propose to amend the last sentence.
THE COURT: To read?
MR. NORMAND: However, the existence of these
prior rulings may be considered by you in your determination
of any special damages and punitive damages.
THE COURT: Could you read that again, please?
MR. NORMAND: Yes, Your Honor.
The existence of these prior rulings may be
considered by you in your determination of any special
damages and punitive damages.
THE COURT: Mr. Jacobs, your response?
MR. JACOBS: I think if any is a little clearer in
making it clearer to the jury that the Court is not in some
way suggesting that special and punitive damages might be
available. So the Court's language on if any is better.
I'm not sure what Mr. Normand is driving at with the
existence as opposed to these prior rulings. I am not sure
I see the benefit over the way the Court drafted it.
MR. NORMAND: This goes to our issue -- our
primary argument, which is getting rid of the last two
sentences entirely because the second to last sentence, to
some extent, stands in conflict with the last sentence,
unless the last sentence is merely speaking to the existence
of the rulings.
I know we're parsing this pretty thin, but when we
read that last sentence, we were left a little confused as
to what the jury is supposed to make of those prior rulings
and what it is that the Court is telling them to do with
THE COURT: The Court will accept your language
change except will continue to include if any.
MR. NORMAND: That wasn't the focus of our change.
I still thought it was quicker.
THE COURT: The last sentence will then read, the
existence of these prior rulings may be considered by you in
your determination of special damages and punitive damages,
Do you have anything between 25 and 30?
MR. JACOBS: Actually, Your Honor, we proposed
language at 25-A to address the bankruptcy and bench trial.
THE COURT: Do you by chance have it in writing?
MR. MUINO: Your Honor, we don't have it in
writing other than in an e-mail I sent to Mr. Normand, but I
can read it aloud.
MR. NORMAND: Your Honor, we have proposed
language as well.
THE COURT: Alternate language?
MR. NORMAND: It is mildly alternate.
THE COURT: Why don't we start with that, if
that's all right, Mr. Muino.
MR. NORMAND: May I approach?
If Your Honor would like, I could explain our
rationale for this language.
MR. JACOBS: Actually, Your Honor, this is fine
THE COURT: All right.
MR. JACOBS: It doesn't address the prior trial,
and our proposed language addressed both, the bench trial.
THE COURT: How could this, then, be amended to
reflect the bench trial?
MR. NORMAND: Well, I thought we had a prior
instruction already on that trial.
THE COURT: Not in writing. I mean, you are
referring to the instruction I gave the jury?
MR. NORMAND: Yes.
THE COURT: Do you want to propose something on
MR. MUINO: If I may? Should I just read it?
THE COURT: Go ahead.
MR. MUINO: What we had proposed, Your Honor, was
you have also heard reference to a trial involving SCO and
Novell in 2008. That trial concerned other issues that are
not before you.
MR. NORMAND: That's fine, Your Honor.
THE COURT: All right. We'll add that as a
single, separate paragraph to follow on 25-A, all right,
MR. NORMAND: The bankruptcy and the trial?
THE COURT: The bankruptcy and the trial. They
will be three sentences -- four sentences in that new
paragraph to include your language as well as -- when I say
yours, the written language I just got as well as the
additional sentence that was just read to the Court.
It would be helpful, Mr. Muino, if you could write
that out in very legible handwriting.
MR. MUINO: I will try my best.
THE COURT: All right. Now number 30.
MR. NORMAND: Sorry, Your Honor. We had one on
THE COURT: I thought you said you didn't have
very many. What's wrong with you, Mr. Normand?
MR. NORMAND: We're hitting ours early.
THE COURT: 27-A.
MR. NORMAND: The last two sentences of the first
paragraph, as Novell had indicated, they did send us this
proposed language some days ago and we failed to get back to
them, but we're not entirely comfortable with those last two
sentences of the first paragraph and we would propose
alternative language. I can show Novell a copy of that and
read it to Your Honor.
Why don't I give you that, Your Honor.
THE COURT: Do you need another copy, Mr. Normand?
We can make another copy.
MR. NORMAND: I can hand this to Mr. Jacobs if he
can't read my writing. I've got another typed version.
Our concern was the following, Your Honor. There
is at least one statement -- actually two, I think, in
evidence that were made by representatives of Novell after
the lawsuit was filed. And this phrasing is litigation
related submissions and statements. And I think there is
ambiguity in that phrasing as to whether we're only talking
about statements made in pleadings and filings, which is
what we would want the statement to address, as opposed to
statements made outside the litigation while the litigation
is pending. I think those statements were made on
January 13th and the first week of March in 2004. They
weren't made in filings or pleadings. They were made while
litigation was pending. We wouldn't want to suggest to the
jury that those are non-actionable statements.
THE COURT: Mr. Jacobs.
MR. JACOBS: I wouldn't object to changing the
language of the Court's instructions to filings or
pleadings, or some other -- court filings, but I think that
the change the plaintiff is proposing here is a little more
dramatic than necessary to cure the problem identified.
THE COURT: I believe that --
MR. NORMAND: Your Honor, I'm sorry. We could try
a compromised version of this.
THE COURT: Go ahead, propose something.
MR. NORMAND: If you have the language in front of
you, Your Honor, how about the allegedly slanderous
statements do not include --
THE COURT: Are you working off of -- are you
working off of Mr. Jacobs' language?
MR. NORMAND: I am. I'm trying to work off of
27-A, your language, what Mr. Jacobs is endorsing. The
allegedly slanderous statements do not include statements
made in filings or pleadings by plaintiff and defendant in
connection with this action -- this litigation, which began
in January of 2004. Neither party may be held liable for
making such pleadings or filings.
MR. JACOBS: I would just tweak that a little bit,
Your Honor, to say, for parallelism, neither party may be
held liable for making such statements in pleadings and
MR. NORMAND: That's fine.
THE COURT: All right. Do you have that, Tom?
THE CLERK: Yes.
THE COURT: And you then would drop your request
for the last sentence in your language?
MR. NORMAND: That's right.
THE COURT: Okay.
Now can we get to number 30?
MR. NORMAND: Yes.
THE COURT: Mr. Jacobs.
MR. JACOBS: Yes, Your Honor. In most cases, I
believe, the form of the instruction now is to refer to the
asset purchase agreement as amended. And that was earlier
introduced into this drafting process to make sure that all
of the asset purchase agreement, its amendments, were
considered together. And now in this instruction, I don't
know whether it's an artifact or intentional, it refers only
to Amendment No. 2. I wouldn't be adverse to the
amendments, including Amendment No. 2, because obviously
Amendment No. 2 is a focus. But it seems like if we're
going to go to refer to Amendment No. 2, we should not
create a consternation in the jury that all of a sudden on
this topic Amendment No. 1 is irrelevant.
THE COURT: You would propose in the last
paragraph that it read, herein the amendments, including
Amendment No. 2, must be considered together?
MR. JACOBS: Yes.
THE COURT: Any objection to that, Mr. Normand?
MR. NORMAND: No, Your Honor.
THE COURT: We'll make that change.
MR. JACOBS: That would go into the next sentence
THE COURT: All right. We'll make the same change
in both those sentences then.
MR. NORMAND: So the next sentence would read the
language of the amendments, including Amendment No. 2?
THE COURT: All right?
MR. NORMAND: Yes, Your Honor.
THE COURT: The next one you have, Mr. Jacobs.
MR. JACOBS: We jump to 33-A, Your Honor.
THE COURT: Do you have anything?
MR. NORMAND: I had one in 31-A that reflects the
concern Mr. Singer raised about an hour and a half ago, that
was the issue of what was being done with the Novell board
minutes and the concern that Mr. Singer expressed. So we
have some proposed language.
THE COURT: Do you have it in writing?
MR. NORMAND: We do.
THE COURT: If you could hand it up, please.
MR. NORMAND: What we've tried to do, Your Honor,
is rather than craft it as one specifically directed to this
issue of the board of directors minutes and the concern that
Mr. Singer raised, we have tried to phrase it to capture
what is a fairly well established doctrine of contract
THE COURT: Where would you insert it in the
MR. NORMAND: We would propose to insert it as the
second sentence of 31-A, in the middle of that first
THE COURT: What do you think, Mr. Jacobs?
MR. JACOBS: Well, I recall a couple of
interchanges on this topic. I recall objecting at one point
that Santa Cruz's private filings were irrelevant because it
was uncommunicated intent and Mr. Normand responding that,
no, that's just not true.
MR. NORMAND: Well, to be clear, this is not an
instruction that would in any way trump course of
performance. At least as I understood that conversation,
the things that Mr. Jacobs and I were talking about I would
say fall into course of performance.
MR. JACOBS: I think, more importantly, I was
quite surprised by Mr. Singer's complaint. The basic SCO
theory of the case on the original asset purchase agreement
has been -- we heard it again in rebuttal today -- that
somehow the legal negotiators of the asset purchase
agreement were acting outside the scope of their authority
and weren't operating under the direction of the CEO and
that somehow they were -- maybe we'll hear this in closing
tomorrow -- off the reservation. I was simply emphasizing
with Mr. Braham that he and the general counsel are
accountable for the board of directors and the board of
directors made the decision in that insofar as Novell's
intent was concerned, that was the final authority.
So I don't think we did anything except really
respond and rebut to a somewhat bizarre theory, as a legal
matter, that SCO was advancing. And to say that what either
party has done itself in its manner of adopting or approving
the contract would take away all of our ability to say that,
for example, the board of directors approved this. So how
can you say that it wasn't Novell's intent to exclude the
copyrights? I think it's a kind of a pinpoint instruction
that is quite inappropriate on the record here.
THE COURT: Do you believe it inaccurately
describes the law?
MR. JACOBS: Yes.
THE COURT: All right. Counsel, the Court will
have to look at it and will let you know just as soon as it
can whether it's going to include it or not.
MR. NORMAND: I would just say as a final thought,
Your Honor, I think what I understand Mr. Singer's concern
to have been is really directed to the issue of the minutes.
We had talked about perhaps proposing something specific to
the approval of the minutes, and we tried to frame it in a
more general, perhaps less offensive way. I think it's an
accurate description of the law.
But, you know, to the extent that our concerns
could be addressed with a quick instruction on the relevance
and irrelevance with respect to what contracts are at issue
and what evidence is relevant, on the board of directors
minutes in particular, that might do it.
MR. JACOBS: But this is quite bizarre, Your
Honor. We have heard all manner of evidence from executives
of Novell about what their intent was and how, although they
never said it to anybody, they had in their heads that the
copyrights would transfer. Then we have the board of
directors minutes that say the copyrights don't transfer.
It is one of the most probative documents in the case with
reference to SCO's theory of the case. So any instruction
that would suggest to the jury that that is not an
appropriate document to look at would be quite prejudicial.
As just another point, I think the Court has done
a pretty good job of not dictating to the jury what it
should do, but rather saying you should consider, you should
do this as opposed to must.
MR. NORMAND: I would agree with Mr. Jacobs that
it is relevant, and I meant to capture that in what I said.
I think it would be equivalent to the instruction the Court
gave early on that there had been an amendment to the
original language of the APA on the grounds that there may
have been a suggestion otherwise in the first couple days of
trial that the integration clause of the APA somehow
controlled. The equivalent instruction here would be it may
have been suggested, perhaps inadvertently, that when the
board of directors approved these minutes that somehow
constituted a contract. I think that's what Mr. Singer's
concern is. But I would agree with Mr. Jacobs that it's
relevant evidence. It's just not the contract.
THE COURT: At a minimum, the Court is going to
alter the must to a may, but the Court will look at it.
MR. NORMAND: Thank you, Your Honor.
THE COURT: Any concern with Instruction No. 32?
Thirty-three, then -- 33-A, excuse me.
MR. JACOBS: Yes, Your Honor. There are a couple
of things going on in this -- let me just say, foreshadowing
that, the whole issue of copyright law and how the jury is
instructed on this is an area that is fraught with peril for
all of us because the jury has heard a lot of testimony
about the way copyright law works. We believe we've
accurately reflected the -- through the testimony and the
understanding of the witnesses, we believe we've been
faithful to the way copyright law works. But it is an issue
of law, and in dealing with the Davis issue, for example,
the Court made it clear it would be instructing the jury on
legal issues. So this is an area of particular, if you
On the proposed instruction, the first significant
concern that we have is with the Restatement it is the owner
of a copyright who may exercise these exclusive rights to
copy. That's not quite right. The owner of a copyright has
the exclusive right to do and to authorize his right as a
matter of law. And that's in the sentence above the
numerated exclusive rights one, two and three in this
So we would propose to just strike that sentence,
that the simplest ground is it's duplicative of the sentence
the owner of a copyright has the exclusive right to do and
to authorize any of the following.
THE COURT: Mr. Normand.
MR. NORMAND: We're fine with that.
THE COURT: Mr. Jacobs, the Court -- did you hear
Mr. Normand say he's fine with that? So the Court will make
MR. JACOBS: Thank you.
In this particular instruction, this is a place to
ask the question whether SCO is going to proceed on a
particular theory. If they are not going to proceed on the
theory, then we don't need the instruction. We haven't
heard a lot about it recently, that is the question of the
legal significance of the physical location of copyright
As a matter of law, I think we even heard it from
one of the SCO witnesses -- sorry, as a matter of his
understanding, we even heard it from the SCO witnesses,
physical location is irrelevant to ownership. If SCO is not
going to argue in closing and they left those registration
certificates with Santa Cruz in New Jersey after the asset
purchase agreement, then we don't need an instruction.
If they are going to try to suggest that that is
in some way relevant to the question of ownership, then I
think we need an instruction that the physical location of
copyright registration certificates is not relevant to the
question you have before you.
MR. NORMAND: I would say the following on that.
We plan to argue that our possession of the registration
certificates is relevant extrinsic evidence. We had
proposed initially and decided to withdraw our own
instruction on the relevance of ownership of the actual
registrations. We took that out. We thought we had an
understanding with Novell that taking that out would put
that issue to bed. Maybe I misunderstood, but they have now
proposed an affirmative opposite instruction that says it's
irrelevant. We think the law says it is relevant, but we're
not going to press for such an instruction.
So I don't know where we stand if we continue to
say we won't put in our proposed instruction, I don't know
if Novell would be satisfied to withdraw their own if they
know that we're arguing that it's relevant extrinsic
evidence, the fact that we have them, but we would not ask
for a formal instruction on their significance.
THE COURT: Mr. Jacobs.
MR. JACOBS: I'm a little confused. If something
is legally irrelevant, then what one does with that
something should be legally irrelevant.
THE COURT: Well, if I'm understanding Mr.
Normand, he's not saying that it takes on specific isolated
legal significance, but that it is significant to the
overall question of what was the intent, how did the parties
perform, and that becomes purely an evidentiary issue. It's
not an issue of a specific legal principle.
Is that correct, Mr. Normand?
MR. NORMAND: I think that's a fair summary, Your
THE COURT: So if they are not going to argue that
it takes on special legal significance but rather is just
simply evidence, I'm not sure that the jury needs to hear
anything more on it.
MR. JACOBS: I think the jury could well be
confused. We don't know what the actual words will be, but
a jury that doesn't know that it is legally insignificant
where the copyright registrations exist in the physical
sense could well give undue weight to that kind of evidence.
It could be like holding a pink slip to a car, for example,
as reflecting ownership of title.
THE COURT: Do you agree that it has no legal
MR. NORMAND: Not at all.
THE COURT: You do not agree?
MR. NORMAND: No, and that was the instruction we
had proposed and subsequently withdrawn. Our understanding
of the Copyright Act is if you possess the copyright
registration certificates, it is prima facia evidence that
you own the copyrights that you are claiming to enforce.
MR. JACOBS: Your Honor, we have authority
directly on point that speaks to this topic.
THE COURT: Do you have language, Mr. Jacobs?
That's more important for the Court right now.
MR. JACOBS: Yes, I do. This actually is a quote
from the case, possession of certificates of copyright
registration is immaterial to ownership of the copyrights.
THE COURT: That comes from what case?
MR. JACOBS: It comes from Kings Row Enterprises,
Inc. v. Metro Media, Inc. It's a Southern District of New
York case, 397 F.Supp.879 at 881. If I could read the
relevant passage, I think it's persuasive. For its contrary
view, defendant relies upon the seemingly undisputed,
parentheses, but, at any rate, immaterial in the court's
view, close parentheses, fact that the copyright
certificates were physically present in the warehouse where
the sale took place and were listed in the inventory signed
by the sheriff showing the things sold. Then it goes on to
say copyright ownership is a matter of state law and so
therefore that would be relevant.
The Court goes on to say, the dispositive point is
that the possessor of a copyright certificate is not ipso
facto the copyright owner. The valuable federal right is
not transferred by mere physical delivery, or other
acquisition, of the certificate. The owner may, of course,
assign the copyright. But this is to be done by an
instrument in writing signed by the proprietor of the
copyright. That's the 204(a) language of the old Copyright
MR. NORMAND: Your Honor, as Mr. Jacobs'
recitation reflected, it is not ipso facto evidence that if
you hold them, that you're the copyright owner. However,
the Tenth Circuit in the La Resolana case, 416 F.3d 1195,
explained that, quote, the paper certificate does play an
important role in judicial proceedings, unquote, which is
that, quote, the certificate is prima facie evidence of the
validity of the copyright, a considerable benefit to a
plaintiff in an infringement action, unquote, so that the
certificate, quote, has evidentiary value, unquote. We
cited in our previous memoranda on this issue, Your Honor, a
series of cases for the proposition that ownership of the
registrations is prima facie not ipso facto evidence of
That's why we had proposed the instruction
originally. We decided that this is not a copyright case as
such and so maybe it was asking to much of the Court, but we
certainly dispute Novell's version of the law.
MR. JACOBS: Your Honor, they are leading the
Court into error again. They are confusing physical
possession with the fact of registration. And they are
confusing registration within five years of publication,
which does have prima facie evidentiary value for the
contents of the certificate, with registration at any time,
which is not prima facie evidence of anything.
So the registration certificates here by both
sides are not -- as a matter of law are not prima facie
evidence of anything regardless of physical location. And,
once again, ownership of the registration is not in any way
related to ownership of the physical copy. Again, the
language of this decision, at any rate, immaterial in the
court's view that the copyright certificates were physically
present in the warehouse.
MR. NORMAND: Your Honor, just one last thought.
We are having a fight over what the copyright law means. I
don't think it can be disputed that the jury would be
entitled to conclude that if one party or the other has made
a decision about what to do with the copyright registration
certificates, which exist for a reason, that that is
relevant to their intent, and the question of intent is
relevant in this trial. I think a jury would be more than
entitled to draw inferences from that fact.
MR. JACOBS: I suppose the jury could draw
inferences if there was affirmative evidence of an
affirmative decision, yes, Santa Cruz, I'm going to
physically deliver the certificates to you. The undisputed
evidence is they stayed in the same physical location after
the facility in question --
THE COURT: I don't want us to be arguing evidence
here. Do you have language that you want to propose to
Instruction No. 33-A?
MR. JACOBS: Yes. Possession of certificates of
copyright registration is immaterial to ownership of the
THE COURT: Would you give that to Mr. Copeland,
please, and the Court will consider it in deciding whether
or not to include it or not.
Your next concern, Mr. Normand.
MR. NORMAND: We had a concern with two words in
33-A which relates to a broader issue reflected in the
second paragraph of 34-A -- I'm sorry, 33-A was what I first
met to refer to, Your Honor. Both 33-A and 34-A refer to
this prospect of an exclusive licensee. It is referred to
in the middle paragraph of 33-A after the word an assignee,
it says or an exclusive licensee. Then, in 34-A, the entire
second paragraph concerns exclusive licensees.
We would propose to eliminate the references --
any references in the instructions to exclusive licenses or
exclusive licensees because there is no evidence that Novell
is arguing that we have such an exclusive license. To the
contrary, the evidence has shown they are arguing we have an
implied license, so it would be unnecessary to instruct the
jury on the issue of an exclusive license.
THE COURT: Your response.
MR. JACOBS: So this is a good point that bears
some explication. I think the word implied has taken on a
life greater than it was intended. Our contention is that
there is a written agreement between Novell and Santa Cruz.
Our contention is that in that written agreement the
specific rights Santa Cruz needed to carry out its business
are granted in writing. Our contention is that that is
so -- even though the word license does not appear in the
asset purchase agreement, our contention is that, as a legal
matter, the omission of the word license is immaterial
because the rights granted are the rights granted. And that
is where the word implied has come up. People may have used
the word implied license, but the right way to think about
this legally is that there is a license in writing where the
word license is implied.
We haven't had to land on the question yet in this
case of whether it's an exclusive license. I think the
asset purchase agreement could be read as an exclusive
license to evolve UnixWare and the emerged product because
Santa Cruz got all of the --
THE COURT: So you dispute his contention that
reference to exclusive license and licensee should be
MR. JACOBS: I do.
MR. NORMAND: Your Honor, I hesitate because this
is one that involves, to some extent, a discussion of the
evidence because it goes to an issue that we've never heard
in these many years, this prospect that we have an exclusive
license, which if we did have we could have brought suit to
enforce the copyrights, which our understanding has already
been Novell did not think we had the right to do. So this
is a new position that Mr. Jacobs is at least allowing for.
Novell's general counsel, who is an attorney and
knows of what he speaks presumably, has repeatedly called it
an implied license, both at trial and in his deposition
testimony. On the issue of exclusivity, I heard Mr. Braham,
at least in the last couple of days, to say Novell, in his
view, retained the copyrights so that they could preserve
rights vis-a-vis other third parties. I don't think
Mr. Braham's testimony is consistent with any argument now
that we have an exclusive license. I think Novell's general
counsel used the term implied license knowingly.
So I think it's confusing for the jury, given that
there has been to date no argument and no evidence, in our
view, that we got an exclusive license.
THE COURT: Final word, Mr. Jacobs.
MR. JACOBS: We're confusing issues again. If
there is an exclusive license, it is an exclusive license to
evolve the UnixWare products that were delivered to Santa
Cruz. It is not an exclusive license to UNIX for, say,
other purposes. It couldn't be. UNIX has been widely
licensed. So we still think that this language is fine. I
don't know that it is going to get a lot of emphasis in
closing, but as a technical legal matter it is correct and
appropriate to leave it in.
MR. NORMAND: Let me speak to --
THE COURT: No, Mr. Normand. The Court is going
to leave the language in. I think the Court would agree
that if in closing the defendant wants to argue that what
Novell had -- excuse me, what SCO received was an exclusive
license to that which it then added to the licensed UNIX,
that SCO would be allowed to do. So I am not going to make
Mr. Jacobs, did you have additional concerns with
MR. JACOBS: No, Your Honor.
THE COURT: Number 34-A?
MR. JACOBS: Yes, Your Honor.
THE COURT: Go ahead.
MR. JACOBS: Maybe the quickest way to do this is
to propose the language?
THE COURT: Yes. Tell us where you are looking.
MR. JACOBS: Yes. So the first two paragraphs we
have no proposed changes to. When we get to -- actually,
I'm sorry, Your Honor, I'm catching something I didn't catch
before, and Mr. Normand may agree with me on this. In the
previous paragraph, we get to the question of an exclusive
license again. I don't think we need that there and it's
not really right. It's not correct because a copyright
owner -- if a copyright owner sells to another person any of
the exclusive rights included in the copyright, that person
may not be called an exclusive licensee at all. That person
may be called an owner of the right.
THE COURT: So you want the third sentence
MR. JACOBS: The third and the fourth sentence
should be removed, and I think we've covered exclusive
license adequately in the previous instruction.
THE COURT: Any objection, Mr. Normand?
MR. NORMAND: With a caveat. I would agree to the
removal of the third and fourth sentences of that second
Is that what you are saying, Michael?
MR. JACOBS: Yes.
MR. NORMAND: I think, especially given the
Court's decision on the prior issue, we need to add a
sentence, and I would propose to add the following sentence
from Section 101 of the Copyright Act, a transfer of
copyright ownership is an assignment, mortgage, exclusive
license, or any other conveyance of a copyright or of any of
the exclusive rights comprised in a copyright. In other
words, my understanding of the copyright laws, when you give
someone an exclusive license, you have transferred copyright
ownership to them. That's, to be honest, Your Honor, one of
the reasons I have thought these many years that Novell
would not want to say we have an exclusive license.
THE COURT: It would seem to me, Mr. Jacobs, if
the Court is going to allow the exclusive license language
in 33, it does have to include that definition if it's, in
fact, from the copyright law.
MR. JACOBS: I agree, Your Honor, and we'll just
double-check the Act. We'll contact chambers if for some
reason it's been inaccurately recounted.
THE COURT: Mr. Normand, I'm going to have you
give a copy of that language to Mr. Copeland, please.
Do you have anything else in 34-A, either of you?
MR. JACOBS: I do, Your Honor.
THE COURT: Go ahead.
MR. JACOBS: In the next paragraph we wanted to
clarify what a nonexclusive license is as follows:
Nonexclusive licenses, on the other hand, do not transfer
copyright ownership and can be granted in writing, orally,
or implied from conduct, so adding in writing in that
Then we would propose to add the following
sentence, a nonexclusive license also arises when the
copyright owner authorizes the licensee to copy, distribute,
or prepare derivative works, and then we would --
THE COURT: All right. A nonexclusive license
also arises when --
MR. JACOBS: The copyright owner authorizes the
licensee to copy, distribute, or prepare derivative works.
THE COURT: Do you have that language written
separately by any chance?
MR. JACOBS: We can do that right way, sir.
THE COURT: Mr. Normand.
MR. NORMAND: Well, to the extent I caught it, I
would disagree with that as a proposition of the copyright
law. This is something we argued to the Tenth Circuit. The
language at the bottom of the page is, to our view, the only
scenarios in which an applied license comes up. So I didn't
get all the language that Mr. Jacobs proposed, but I think
what I heard him to say is that a contract, like the APA,
can be an implied license, and we would disagree with that
MR. JACOBS: I think I was precise, Your Honor.
We're not talking about an implied license, implied as a
matter of law, which is the kind of license Mr. Normand is
referring to. Just to jump ahead, we will be proposing that
the last paragraph of Instruction No. 34-A in the draft be
deleted because that is not our contention. We are not
contending that an implied license arose by operation of
law, which is the case contemplated by the law that Mr.
Normand is referring to and the law that's reflected in the
last paragraph of the instruction.
THE COURT: So you are suggesting striking all of
the last paragraph of 34-A?
MR. JACOBS: That's correct.
MR. NORMAND: I'm sorry to do this to the Court,
but, Michael, could you read in the sentence you proposed as
the new second sentence of that paragraph?
MR. JACOBS: Sure. A nonexclusive license also
arises when the copyright owner authorizes the licensee to
copy, distribute, or prepare derivative works.
THE COURT: So with that sentence --
MR. NORMAND: That sentence can't be literally
true because that could be an exclusive licensee as well.
MR. JACOBS: Well, it starts out with a
nonexclusive license also arises when the copyright owner
authorizes the licensee to copy, distribute, or prepare
THE COURT: I hear that language, but it suggests
that it is by definition a nonexclusive license, and that
would be inaccurate.
MR. JACOBS: Maybe this will help, a nonexclusive
license may also arise when the copyright owner authorizes
the licensee to copy, distribute, or prepare derivative
MR. NORMAND: Do you have any authority for the
proposition that a nonexclusive license like that can be in
MR. JACOBS: Do I have any authority for the
proposition. I don't have a case with me, but it seems that
if I can say to you, Mr. Normand, you can copy my draft jury
instructions, then that creates a nonexclusive license
orally. But if I write you an e-mail and say, Mr. Normand,
you can copy my draft jury instructions, I have created a
nonexclusive license in writing by authorizing you to copy,
distribute, or prepare derivative works.
MR. NORMAND: I'm definitely having limits of my
knowledge of the copyright law tested, but I would say if
we're going to add the phrase in writing to the prior
sentence, then we don't need the next sentence. The next
sentence strikes me as much more crafted to suggest that the
APA, the jury can find, is a nonexclusive license rather
than a flat statement of law, which the previous sentence
now will be if it has the phrase in writing.
THE COURT: All right. Mr. Jacobs, supply Mr.
Copeland, before we leave, your proposed sentence to add to
that paragraph. And if I understand it, if that sentence is
added, then you are requesting the removal of the last
MR. JACOBS: That's correct, Your Honor.
THE COURT: If that sentence is not added, do you
still want the removal of the last paragraph?
MR. JACOBS: I think so, Your Honor. It's just
not our situation and we're not going to argue it.
THE COURT: Okay. Anything else on 34-A?
MR. NORMAND: Your Honor, our issue on 35-A is one
that we have already, I think, put before the Court, which
is that the third paragraph, in particular, which in the
Model Utah Jury Instructions is bracketed language, really
seems out of place with respect to the claim at issue here.
It's about investigating and reporting.
THE COURT: You did, however, elicit a lot of
testimony about, okay, what did you do to find or not find
an executed copy of Amendment No. 2, et cetera, et cetera.
That came from a number of witnesses. The Court thinks it's
probably in properly and will leave it in.
MR. NORMAND: Thank you, Your Honor.
MR. JACOBS: Just a small typo I think on this
one, Your Honor. On the second paragraph, second line,
there is a period after false.
THE COURT: I'm sorry. Where again?
MR. JACOBS: I'm sorry, Your Honor. It's a
THE COURT: Okay. Nothing else, then, on 34-A.
Mr. Normand, let me ask you this before we go
beyond, if the Court -- what do you think about the last
paragraph of 34-A, in or out?
MR. NORMAND: 34-A?
THE COURT: I'm sorry. I should have asked you
MR. NORMAND: I think, on balance, we would keep
it in, Your Honor.
THE COURT: All right. I understand your
MR. JACOBS: We do have some concerns with this
instruction. And with the Court's indulgence, I would ask
Mr. Sears, he's become quite the expert on damages and
slander of title, to address this one.
THE COURT: Go ahead, Mr. Sears.
MR. SEARS: Thank you, Your Honor.
With respect to the substantial factor aspect of
this instruction, we think it may be --
THE COURT: Will you draw my attention to a
specific paragraph, line so I know where you're looking at?
MR. SEARS: Yes, Your Honor. So this is the
paragraph that spills over from the bottom of the first page
to the top of the second page. And the issue here is that
there is both in the Restatement section that much of the
remainder of this instruction is from and in form
instructions from, for example, California where substantial
factor is used, typically in a circumstance like this where
there is evidence that harm would have been suffered even
without the complaint of conduct, that a "but for" component
should be included in the instruction.
For example, California's form instruction number
430 has, as bracketed language, at the end of its
substantial factor instruction, conduct is not a substantial
factor in causing harm if the same harm would have occurred
without that conduct. So we would propose adding that
language in to fortify the point.
It was well illustrated in a California Supreme
Court opinion, Soule v. GM, which is 882 P.2d 298. In that
case there was an automobile accident. The auto had a
defect, and GM requested that this language that I just read
to the Court be included, the theory being in an accident
involving a car and a semi, the defect in the car is not --
excuse me, coming at it the other way, the injury would have
been sustained regardless of whether the car was defective
when you get hit by a semi. The Court found reversible
error in the failure to include the language that I just
read a moment ago.
So our suggestion would be adding to the end of
this paragraph the language from California's instruction
THE COURT: Could you read it again, please?
MR. SEARS: Sure. Conduct is not a substantial
factor in causing harm if the same harm would have occurred
without that conduct.
THE COURT: Mr. Normand.
MR. NORMAND: Well, we would oppose this one, Your
Honor. We think that the Court's draft language has it
exactly right under Utah law and under the Restatement. I'm
not familiar with the case that has been spoken to, but we
cited chapter and verse that the substantial factor test is
the standard for causation generally. Utah courts have
repeatedly adopted the Restatement. The language of the
Restatement is directly contrary to the argument that's been
The language in the commentary of Section 632, for
example, says that it is not necessary that the conduct
should be determined exclusively or even predominantly by
the publication of the statement. It is enough that the
disparagement is a factor which determines his decision even
though he is influenced by other factors without which he
would not decide to act as he does.
So our view is the substantial factor test is the
controlling one in Utah. It's controlling across
jurisdictions. It's controlling as reflected in the
Restatement. And we dispute the notion that you have to
diffuse other factors. There is a comment in the
Restatement that explains that one way to satisfy the
substantial factor is to eliminate other causes. But that's
merely one way in which you can satisfy that test, it's not
the only way.
THE COURT: Mr. Sears, I'll give you the last
MR. SEARS: Thank you.
If we're going to look to the Restatement, much of
the rest of this instruction is taken from the Restatement,
Section 633, and comments (c) and (d) to that section of the
Restatement support Novell's position.
THE COURT: All right. We'll look at that again.
Thank you, counsel.
MR. NORMAND: Those comments, Your Honor, are the
examples of how the substantial factor test can be
THE COURT: Anything else to 36-A?
Anything else at all, Mr. Jacobs?
MR. JACOBS: No, Your Honor.
THE COURT: Mr. Normand, do you have anything
MR. NORMAND: We did have a small comment on 40-A.
The last sentence now says you should, of course, consider
section 4.16. Your Honor may recall that we had fought for
the difference between the verb may and the verb should on
the issue of how the jury should consider extrinsic
evidence. We would ask for a similar use of language as was
used with respect to extrinsic evidence to say -- taking out
the of course, as if it were self-evident, and say you may
consider section 4.16, et cetera.
MR. JACOBS: No objection, Your Honor.
THE COURT: We'll make that change.
MR. JACOBS: Your Honor, we would just like to
express appreciation for the process. We know we inundated
the Court with a lot of paper on this. Everybody worked
really hard. The way the Court has responded quickly and
gotten us drafts in the last few days has made it a lot
easier on our team, so thank you.
THE COURT: Thank you, Mr. Jacobs. Mr. Copeland
is the one who deserves that praise.
We'll try to get you another draft this evening so
you've got it overnight. All right.
MR. NORMAND: Your Honor, there is one linguistic
issue. I don't know if Mr. Jacobs would agree or not, but
on this issue of conforming the instructions now that we
have just the SCO claim, it may be simpler for the jury to
have the parties referred to as plaintiff and defendant. I
don't feel strongly about that, but I think, as it stands,
we had agreed to call them claimant or something. Maybe
it's easier to just say plaintiff and defendant.
MR. JACOBS: I think once, if Your Honor rules --
I'm sorry. Start over. I think it would be simpler to say
SCO and Novell, then they really won't get confused.
THE COURT: All right. We'll change it, then, to
SCO and Novell. I'm sure Mr. Copeland is not real happy
The verdict form, anything other than obviously we
will have to change it in light of the Court's ruling on the
Rule 50 motion?
MR. NORMAND: Your Honor, we're fine with the
verdict form as is.
MR. JACOBS: Your Honor, we expressed our
concerns, as the form and the case has evolved, in our
papers. If you would like to hear more on that orally --
THE COURT: Are you referring specifically to the
fact that we have made a separate finding as to the
MR. JACOBS: That, but even more critically that
it's a gaming factor to decide the slander of title claim.
So the way the form reads now I believe, I don't think
that's changed. You only decide slander of title otherwise,
if you will. So if you answer yes, go on to question two.
If you answer no, skip to question five. But logically the
slander of title claim itself doesn't have that kind of
flow. If the easiest way to dispose of the slander of title
claim for the jury turns out to be malice, constitutional
malice, the fact that they would have first decided this
issue and decided in this gaming sort of way, we think would
create some -- either some momentum going the wrong
direction or a possible hangup.
So I'm not quite sure how you might handle this
tomorrow evening, but if they reported out, you know, we're
stuck on question number one, and the verdict form says you
can't go on to question number two until you finish with
question number one --
THE COURT: But isn't that a fact? Do you want
the jury to go on to number two without deciding number one?
MR. JACOBS: I think so, Your Honor. I think if
we are found not to have slandered their title on any of the
grounds, that we'll consider ourselves victorious.
THE COURT: I think, Mr. Jacobs, in the Court's
mind, there is no way the jury can perform its
responsibility tomorrow without making that initial
determination. And to afford them any opportunity to do
otherwise, I think would be an error. Okay.
MR. JACOBS: Understood, Your Honor.
The only other thing that has occurred to me is
this issue of as of the date of the asset purchase
agreement, the Court has been quite diligent, and we
appreciate it, in including that in the instructions. I'm
still a little bit worried that there's going to be
confusion because UnixWare 1.0 and 2.0 are the pre-asset
purchase agreement versions, 2.1 and thereafter are the
post-asset purchase agreement versions. They may get hung
up on UnixWare tomorrow night because obviously, as we've
tried to make clear, Santa Cruz owns the copyrights in the
I don't have a suggestion to cure -- it's possible
the jury could come out tomorrow night and say what if we
decide one way on UNIX and one way on UnixWare, what do we
THE COURT: That seems highly unlikely, Mr.
MR. NORMAND: Your Honor, I think this falls into
the category of there are issues in each of these questions
that are built into and addressed in the instructions, and I
think this falls into that category.
THE COURT: Do you have any more record you want
MR. JACOBS: No, Your Honor.
THE COURT: All right. Counsel, the Court will
take your requests and your opposition to the requests of
the other side into consideration and will put together
another packet and get it to you as soon as we can. It may
be you'll just get a packet that includes the major
decisions that have been made that will help you prepare for
your closings, and then we'll give you the rest of it
MR. NORMAND: Thank you, Your Honor.
THE COURT: We'll be in recess.
MR. JACOBS: I'm sorry, Your Honor. One quick
question. Are we okay on page length for the Rule 50
motions, that is --
THE COURT: Mr. Sears, what is your question.
MR. SEARS: Ideally, we would ask the Court for 35
pages for the brief in support. Keeping in mind that the
summary judgment motion was 25 pages plus statement of
facts, we've tried to keep approximately close to that.
THE COURT: This is on your Rule 50 motion?
MR. SEARS: Yes.
THE COURT: I think I probably ought to, at a
minimum, require no more than what would be in the summary
MR. SEARS: So 25 plus a statement of facts?
THE COURT: Yes.
MR. NORMAND: This is the Rule 50 motion that was
THE COURT: They indicated yesterday that they
were going to, at the end of the trial as well, make a Rule
So I presume that's what you were referring to,
MR. SEARS: Yes, Your Honor.
THE COURT: The only question I would ask you is
whether -- well, that's fine. That's fine. All right.
MR. JACOBS: Thank you, Your Honor.
(Whereupon, the proceeding was concluded.)
C E R T I F I C A T E
I hereby certify that the foregoing matter is
transcribed from the stenographic notes taken by me and is a
true and accurate transcription of the same.
PATTI WALKER, CSR-RPR-CP DATED:
Official Court Reporter
Salt Lake City, Utah [Zip]