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Novell v. Microsoft Trial Transcripts as Text - Day 1, Oct. 17, 2011, Jury Instructions ~pj
Saturday, June 02 2012 @ 09:51 PM EDT

Here is the transcript of day one of the jury trial in Novell v. Microsoft before the Hon. J. Frederick Motz, as text. This would be, then, October 17, 2011 [PDF], and the litigation was regarding antitrust, based on Microsoft's allegedly anticompetitive behavior regarding Novell's WordPerfect in 1994 through 1996.

The trial ended in a mistrial, because one juror held out for Microsoft on the issue of damages, after the entire group of twelve agreed that Microsoft was guilty of anticompetitive behavior. The trial had not been divided into phases, as you saw happen in Oracle v. Google, and so the decision had to be unanimous on both issues, so when it wasn't, it resulted in a mistrial. Interestingly, all 12 jurors made it all the way through to the end of the trial, and they didn't set any aside as alternates, so all twelve took part in the decision.

We are waiting to find out if Microsoft's renewed motion for judgment as a matter of law will be granted by the judge, after a hearing scheduled for this month on the 22nd. If not, there will be a second trial. Either way, there will almost certainly be appeals. So our primary purpose on Groklaw is to make a permanent record for historians of the evidence in this first trial. But if you notice something that reminds you of an exhibit from the Comes v. Microsoft trial, by all means say so in your comments, as it will help new folks get their bearings. And just as the Comes exhibits showed up in Novell v. Microsoft, exhibits in the latter trial may show up in future litigation. One never knows. But spreading knowledge is what Groklaw is for. If you have questions about what you read, I'll try to answer, as I have time.

Opening day was a short day, mainly the judge giving the jury its instructions, because the jury selection took up time in the morning and when the judge suggested to the lawyers that they go ahead and do their opening statements, they didn't like the idea, since they had relied upon having one more day to prepare. The next day was opening statements, therefore, and that's when the trial began in earnest.

For anything that matters, go by the PDFs, as always. We strive for accuracy, but we are only human, so mistakes are possible. We have made one change on purpose, removing the line numbers, so that those who rely on screen readers don't have the annoyance of having to listen to line numbers being read aloud constantly.

I'll be posting the transcripts one per day for a bit, until we have it all done, or at least that's the goal. All the transcripts are here, as PDFs. All the filings in the case are here.

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

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

In re:
NOVELL,

Plaintiff,

vs.

MICROSOFT,

Defendant.

_____________

Case No.

2:04-CV-01045JFM

_____________

BEFORE THE HONORABLE J. FREDERICK MOTZ

October 17, 2011

Partial Transcript of Jury Trial

________________

Laura W. Robinson, CSR, RPR, CP
[address, phone]

Appearances of Counsel:

For the Plaintiff:
Jeffrey M. Johnson
John E. Schmidtlein
James Robertson Martin
Miriam R. Vishio
Attorneys at Law
Dickstein Shapiro LLP
[address]

Max Wheeler
Maralyn M. English
R. Bruce Holcomb
Attorneys at Law
Snow, Christensen & Martineau
[address]

For the Defendant:
David B. Tulchin
Steven L. Holley
Sharon L. Nelles
Adam S. Paris
Qian A. Gao
Attorneys at Law
Sullivan & Cromwell
address

James S. Jardine
Attorney at Law
Ray, Quinney & Nebeker
[address]

2

Salt Lake City, Utah, October 17, 2011

(Partial Transcript)

THE COURT: Let me just make a few preliminary remarks to you and then you are going to be free to go. I was just telling the lawyers that they have been so efficient that we'll start with the opening statements right away and then they laugh because that would not be very fair since they thought they had a day to prepare for them.

Let me -- number one, I know I have been cursed with a very soft voice. So if any of you can't hear me at some point, remind me to speak into the microphone and I will try to do that. It has been a problem for me for a long, long -- well, all my life.

Let me introduce myself again. My name is Fred Motz and I am a Federal District Judge in Baltimore and I just happen to be here because they're stuck with me because I made some pretrials rulings in the case and it is easier for me to come out here than to dump it on another judge and try to get it on his or her docket. Everybody else will be introduced to you during the course of the trial. The court reporter here is obvious. I think some people will be coming in to do daily copy, but the official transcript will be done here. The courtroom deputy has lots of jobs. The most important one is, as far as I'm concerned, is if you have got any questions please ask her. I have already

3

learned in half a day she is delightful to work with and you will see that as well.

As soon as I'm finished up, she is going to just sort of orient you to the jury room and things of that nature to get you to feel comfortable. Now, you will notice that there are 12 of you and, of course, that is a little unusual though. In a civil case in federal court we can actually try a case with as few as six jurors. We pick six extra people because of the length of the trial. But all of you who are still here at the end will deliberate. Nobody has been selected as an alternate. If all of you are here, you will all be fully participating jurors when it comes time for you to engage in deliberations. I hope you all 12 will remain healthy and that things work out well and you'll be here at the end. We certainly are planning that, but if somebody -- but if you are here, you will deliberate. That is not an issue.

Let me tell you a little bit about the schedule. I think you all know already, but if I get it wrong, I forgot to bring my calendar with me. We are going to try to get started at 8:30 in the morning and finish by about 1:30. We will not have any lunch break, is that right? Maybe a 20 minute break. I am bringing in a light lunch.

THE CLERK: We will have a light lunch.

THE COURT: You will have a light lunch break to keep

4

us all nourished, but then you all will be free to go. That is not because the lawyers aren't working, they're working very hard and I can assure you they are, there are issues in the case I have to resolve them. We worked back in Baltimore for three days getting the case ready and continue to do that.

Once in a while, we're going to have what is called a bench conference. And -- excuse me, I will tell you about the schedule. The schedule is usually about 8:30 to 1:30 with one short break and a light lunch. We will be sitting -- I'll tell you now when we will not be sitting. I will sit Monday through Thursday just about every week except one. We will not be sitting this Friday because I still have a case back in Baltimore that I have to get back on Friday to keep my docket going. Next week we will be sitting Monday, Tuesday, Wednesday and Thursday but not Friday. The following week I have a pretty -- I have a conference I have to go to so we're not going to sit at all that week. That is the week of what, October 31st.

MR. TULCHIN: October 31st, Your Honor.

THE COURT: You will not sit at all the week of October 31. The following week we --

JUROR #5: Could we get a schedule?

THE COURT: Good question. We will not sit on the 11th. We will sit on the 18th. The other important thing

5

for to you to know without a schedule but you should have one is that we will not sit on the week of Thanksgiving. We're only going to sit on Monday and Tuesday. We're not going to sit Wednesday, Thursday and Friday thinking it would be an inconvenience to you.

If the case goes into December, we will sit the week of the 2nd and the week of the 9th and the week of the 16th although I hope we won't because I have got lots of proceedings scheduled back in Baltimore. But if I have to cancel, I will cancel them. So early on the most important thing is this week we will not sit on Friday. Next week we will not sit on Friday. And the following week we will not sit at all the week of the 31st. And we will not sit on Wednesday, Thursday or Friday of Thanksgiving.

Now, I was about to mention how hard the lawyers have been working. They're going to continue to work hard. We will have, from time to time, bench conferences when the lawyers will come to the bench to discuss an issue which comes up. We are going to try to do everything we can to minimize the bench conferences. Counsel has gotten to know me well enough to know I try to spot issues in advance and when you all are here I would much rather have testimony being taken rather than us having to discuss issues that we could discuss outside of the presence of the jury for that matter. Number one, it is a more efficient use of time; and

6

secondly, and more importantly, it is a courtesy to you all. You all are doing this civic duty and it is a wonderful thing you're doing and we want to make it as convenient for you as possible. So we will try to minimize bench conferences but inevitably we will have them from time to time. We also will be getting started as soon as you all are here in the morning. I'll be here, the lawyers will be here, and we will resolve issues and counsel again going I don't think I have disdain more than asking jurors to hurry up and wait. When you all are here, I want to get started and that is what we will plan to do.

You will see from time to time lawyers will object to evidence which is introduced. We will try to work out objections in advance. Sometimes that is a job. I want to make you understand from the outset that when lawyers object to evidence, it is not because they are trying to hide something from you. It is important for you to understand that. They're not trying to hide something if they object to evidence. You all have a very important job. You are judges just as much as I am a judge. I have to rule on issues of law, you are the judges of the facts. But you can base your verdict only upon evidence which is legally admissible. And the only way that I have to rule upon that, and the only way for lawyers to find out whether or not I think something is legally admissible or not is to object.

7

When they object, they are not trying to hide something, they're simply doing their job. They're serving their clients but also serving the system of justice. You may see the lawyers from time to time around the courthouse probably that is inevitable and they won't talk to you. I am quite confident the one thing I'm sure of is they would obviously want to talk with you but they can't. They are under court rule not to talk to you while the case is in progress. So don't think they may be -- they may smile but they can't do anything more than that. Also, please don't talk to anybody connected with the case. A witness or anybody else. This is very important. Back in Baltimore I can remember jurors have good sense but I remember once that a juror was seen talking to a witness who lived in York, Pennsylvania which is about 45 minutes from Baltimore. And all she was asking is do you know somebody who she knew who lived in York. But we had to inconvenience the jury. We had to bring her in and say what were you talking about. And it was nothing. But I don't want you all to be inconvenienced by the fact that you're talking to someone. You're seen -- I know you all wouldn't talk about anything about the case to anybody, but don't even talk to somebody connected to the case because then somebody will see you and ask you what it is all about.

Now, the next piece of advice is going to be very,

8

very difficult to follow but you have got to do it and it is very important. This is a long case. You are going to be with your family and friends day in and day out and you will see people when you go out on weekends. But you can't talk about the case with them. After the case is over, you can certainly talk about the case, we hope you talk about the case, we hope you talk about the experience and it is a great experience, but you cannot talk about the case. Now again, I'll tell you a story which is true. Unfortunately my wife was selected on a jury in Baltimore, and when she came home the first thing I did was oh, you get selected, what is the case all about? And she looked at me with even greater disdain than she usually does. Just saying that she never did. So don't talk about the case and I know how hard it is.

The next piece of advice is also important and I want you to follow it. Don't talk about the case to one another either. That may seem strange I mean you are all hearing the same case. The reason -- the other is obvious you are the only one hearing the evidence. We don't want extraneous opinions about what the case is all about. Sometimes it is a little less obvious why you can't talk about the case to one another. And that is because as the lawyers and judges often say, a trial is a jigsaw puzzle. You're not going to know how it all fits together until you have heard all of

9

the evidence, until you have heard all of the arguments of counsel, and until I have instructed you on the law. And judges fear that if jurors start to talk to one other about the case, all of a sudden they stake out a position from which they find it hard to retract as other evidence comes in. Frankly, I think it is more important that you understand the reason for the rule. You have to obey the rule but the only thing is don't sneak out and stake out a position with a fellow juror until you have heard all of the evidence. This is a real trial. I can assure you that. Incidentally, if I, and I hope I never do, but during the course of the trial if I indicate to any of you anything related to a factual matter disregard any expression on my face, I hope I don't have any, but they are real facts for you to decide and it is there for you alone to decide. And so it is an important job you all have.

The other thing is, and we never used to talk about this, but you have to watch out now, don't use the internet. We used to tell people if there was an auto accident or something don't go out to the scene and see how the road looks itself. It is much more complicated than that. You all now, many of you, you know my grand kids are much more -- they are under five, but they are better than I am on the computer. I can use the computer, I can do internet research but don't do it. You have got to base your verdict

10

entirely upon what you hear in this courtroom. Maybe conscientiously you may think I'm just going to go find out about this and don't do it. You have to base your verdict upon what you hear in the courtroom and don't do any internet research. Don't connect with one other by e-mail or Facebook or anything like that. There are cases where people have actually, jurors were communicating in Baltimore, and communicated with each other with Facebook and somebody found out later they have done that and that has been considered to be a potentially inappropriate conversation because we want you all only to talk to one other when you're all present when you deliberate. Don't try to do anything conscientious by researching something. You can't do it. Don't read blogs or something. This case may have some notoriety. Don't read anything about the case on the internet. Don't read about it in the newspaper. If there is something in the newspaper, just say I know about that case because I hear about it every day and put the paper down. If something comes on the radio or television, same thing. Something on Novell or Microsoft, turn off the radio. The reason is obvious, in fact, two reasons. Number one, I may have ruled upon something which I don't think you should hear so then you would hear it if you listen. But secondly, even things you all hear about we want your views of them not according to what a reporter says about it. So

11

that is -- make sure you don't read about the case.

I hope I am not violating local practice when I say this, and I may retract it tomorrow, you may take notes if you want to. Pads and papers will be provided. Particularly in a long trial, I think it is important for you to do that. I want to give you a couple of cautions about taking notes if you take them. You don't have to take notes, but if you do, most importantly don't become so involved in taking the notes that you don't watch the witnesses. We all know with every day experience that one of your jobs is to determine who is telling the truth or not. And we all know from every day experience that you sort of sense what people are like by watching their body language as well as by listening to what they have to say.

So if you take notes, don't be like the court reporter taking everything down, make sure that you continue to watch the witnesses. Secondly notes are only an aid to the person who took them. They are helping you refresh your recollection. Someone who took notes should not be listened to when you begin to deliberate more than somebody who didn't take notes. People's minds work differently and some people may think I can do my job better by not taking notes. Also, notes are not an official transcript and so what is written down should not be considered to be verbatim. I think we will try to have daily transcripts prepared as the

12

case goes along, but you all will not have the transcripts with you in the jury room. I don't think so. So if you need to hear testimony read back, we can do that, but we're not going to send back piles and piles of transcripts. The evidence, the exhibits that have been admitted into evidence, we will let you have, but not the testimony.

The other thing I want to tell you about notes is we will collect them at the end of every -- when you go out to lunch or when you go home at night. But if by any chance your mind has wandered and you doodled or something, don't worry about it. Nobody reads your notes. They're your private business. It is a long trial and nobody -- so nobody is going to be looking over your notes when we have them. We just have to keep them. Cell phones, I don't know what the rules are here, but clearly when you come in the courtroom, you have to have the cell phone turned off because we don't want any disruption.

The only thing I have not mentioned is some judges pick the foreperson at the beginning of the trial. I don't do that. I actually let jurors do that themselves as their first order of business when you begin to deliberate. So none of you have been pre-selected as the foreperson or forelady. That will be something for you all to do when you begin your deliberations and I will just let you know that.

You may hear some terms during the -- in a civil case

13

like this it is very -- one of the reasons the trials can be efficiently run is lawyers engage in what is called discovery. They can find out what the other side -- what the case is about. And there are various things, I won't mention them all, you may hear a couple of terms during the course of the trial just to let you know what they are.

Interrogatories. An interrogatory is a written question that one side asks of the other and then the answer can sometimes be read into evidence. But I don't know whether that is going to be done in this case or not, but there will be -- that is what an interrogatory is. It is a formal question sent by one side to the other and the other side answers it under oath and it can be read.

The other one is a deposition. You will hear about a deposition. Depositions are basically a witness appears, there is no judge present, there is a court reporter present and the witness is under oath. And depositions can be used for a lot of things during the course of a trial. If somebody appears as a witness here, you can use a deposition if you think that somehow the testimony is different than what the witness testified to in deposition. You can ask the witness about what you think the inconsistency is. Also, some people's depositions depend on what the technical rule is whether a party is within 100 miles of Salt Lake City. But you can also read into evidence and some times by video

14

conference or sometimes just reading it in, you actually will not have witness appear you will have his or her testimony read to you or also see a videotape of the deposition. I think that will happen from time to time. That is what a deposition is. It is something taken before trial, under oath, no judge is present, but the lawyers for both sides are present.

Now, the next thing I want to tell you, and I may change this a little bit tomorrow, obviously this is not a simple automobile accident case. It is scheduled for six to eight weeks and I think you know enough about it from the questionnaire to know it is an -- it is an antitrust case is what it is. Let me tell you a little bit about what it is about.

Now the plaintiff is Novell, Inc. and the defendant is Microsoft. Now, Novell and Microsoft both develop and market products for computers, including computer software. And during the trial you will hear a lot about software applications and personal computer operating systems. As you probably know, personal computers are commonly referred to as PCs. That is something that people use the term PC. Now, they can be categorized by the microprocessors that they use. An Intel compatible PC is one designed to function with a microprocessor manufactured by a company known as Intel. Intel is not a party here, but that is --

15

that is what an Intel compatible PC is. And during the period of time relevant to this case, and by the way the period of time that is relevant to this case is 1994 to 1996. It is not present, it is looking back in history I think specifically March of '94 to November -- no, I have got that backwards. March or -- is it '94 to '96? We'll tell you more, whether it is March of '94 to November '96, or November '94 to March '96. Anyway but I think it is November '94 to March '96 but it is -- it is old business. But during that period of time, an operating system designed to run on Intel compatible PC would not function on a non-Intel compatible PC and vice-verse. For example, I think you know Apple and Macintosh. Macintosh PC's would not work on an Intel compatible PC and an operating system written for an Intel compatible PC would not work on Macintosh. When I use the term PC operating system and I expect when the lawyers use the term during the course of the trial, they will be referring to Intel compatible PCs, PC operating systems. So that is what PC operating system will mean.

Now it is undisputed during the period of time relevant to this case Microsoft had a monopoly in the market for PC operating systems, specifically Intel compatible PC operating systems. Now, I want you to know at the outset a mere possession of monopoly power, if lawfully acquired,

16

does not itself violate the antitrust rules. A monopoly's conduct only becomes unlawful when it involves what are called anti-competitive acts. And rather than get into all of that now, we'll wait until the very end of the case to describe more fully to you what an anti-competitive act is. But that is basically what the case is, the claim here in this case with Novell claims is that it is the -- Microsoft is liable to Novell for damages under the federal antitrust laws. And in order to prove its claim, Novell must establish various things.

And again, I'm going give you a much more complete instructions about this at the end of the case. This is just to give you a very, very general guide. That Microsoft willfully maintained its monopoly in a PC operating system market by engaging in anti-competitive conduct, including conduct to thwart development of Novell's WordPerfect and its other office productivity systems. I think the evidence will show that as Quattro Pro but basically WordPerfect and another during the period of time relevant to this case which again is '94 to '96. And there has got to be and I'll tell you more about the causal connection, but you can tell from the language it had to maintain its monopoly by engaging in anti-competitive conduct. And I'll tell you at the end of the case what anti-competitive conduct is and also tell you a little bit more about engaging in the causal

17

nexus but that is got to be there. The other thing is that Novell realizes it must show that Microsoft's anti-competitive conduct, if you find any, engaged in during the period and injured Novell in its business or profit during the relevant period of time. So that is what the case is generally all about. I realize that this is a very general guide at this point, but to give you a general idea of what the case is about that is what it is about.

And tomorrow you will be hearing opening statement from counsel about why they think they -- Novell will go first and they'll tell you why they think they can prove the case. And Microsoft will make its opening statement about why it thinks Novell is wrong and why Novell can't meet its burden of proof.

As I said, I was beginning to threaten the lawyers that they were so efficient picking the jury that I would make them give their opening statements today but that would be unfair to them. We're going break for the day. Just keep all of these things in mind. Go home and say I did get selected for this jury, I'm going to be in a long time and I will talk to you but I'm not going to talk to you about the case until it is all over and it will be very a interesting discussion.

Counsel, anything I have forgotten or anything that I ought to bring up?

18

MR. TULCHIN: No, Your Honor.

MR. JOHNSON: No, Your Honor.

THE COURT: Terrific. Have a wonderful afternoon. See you at 8:30 in the morning and I am going to stay here with counsel. Goodbye.

(Whereupon, the jury left the courtroom.)

19

STATE OF UTAH )
)ss
COUNTY OF SALT LAKE )

I, Laura W. Robinson, Certified Shorthand Reporter, Registered Professional Reporter and Notary Public within and for the County of Salt Lake, State of Utah, do hereby certify:

That the foregoing proceedings were taken before me at the time and place set forth herein and were taken down by me in shorthand and thereafter transcribed into typewriting under my direction and supervision;

That the foregoing pages contain a true and correct transcription of my said shorthand notes so taken.

In witness whereof I have subscribed my name and affixed my seal this 17th day of October, 2011.

________________________________
Laura W. Robinson, CSR, RPR, CP
and Notary Public
MY COMMISSION EXPIRES: February 19, 2013

20


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