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The June 22nd Hearing in Novell v. Microsoft Already Held Without Public Notice on June 7 ~pj - Updated
Saturday, June 09 2012 @ 03:09 PM EDT

PACER is showing that, without any notice to the public, the hearing on Microsoft's renewed motion for judgment as a matter of law in the Novell v. Microsoft antitrust case happened behind our backs on June 7. It was scheduled for June 22.

Because it's the weekend, I can't find out what's what until Monday. This judge tried to dump this case once before, if you recall, then was overturned on appeal, and then seemed to have a bit of an attitude about it, so that is what is giving me hives. But let's not jump to conclusions, I keep telling myself, and wait for the explanation. There could be one. But it was a hearing on whether the judge should grant Microsoft's request to declare it the winner of the entire dispute, without going to a second jury. The first, if you recall, was deadlocked. Microsoft is asking to avoid a second trial. In other words, they held a hearing without public notice on the entire enchilada, not some minor hearing on scheduling or about some administrative issue. I'm stunned.

Here are the last two docket entries in Utah, so you can see there was no public notice, and you can read the minutes of the hearing, which I gather lasted pretty much all day. The judge hasn't rendered a decision:

505 - Filed & Entered: 05/09/2012
A hearing on Microsoft's Renewed Motion For Judgment As A Matter Of Law will be held at 10 am on June 22, 2012 in courtroom 5A, USDC, 101 West Lombard St., Baltimore, MD. Signed by Judge J. Frederick Motz on 5/9/12. (JFM)

506 - Filed: 06/07/2012
Entered: 06/08/2012
Motion Hearing
Docket Text: Minute Entry for proceedings held before Judge J. Frederick Motz: Motion Hearing held on 6/7/2012 re [396] MOTION for Judgment as a Matter of Law (Renewed) filed by Microsoft. Attorney for Plaintiff: Jeffrey Johnson, John Schmidtlein, James Lundberg and Erin Burns, Attorney for Defendant: David Tulchin, Steven Hollen, James Jardine, and Steven Aeschbacher. Court Reporter: M. Zajac.(Time Start: 9:58 a.m. ; 2:05 p.m., Time End: 12:58 ; 6:00 p.m., Room Baltimore, MD.) (asp)

We checked Maryland's docket too, since that is where the hearing was held, but the last entry there was back in April.

Here's what the minutes show:

DATE: June 7, 2012

JUDGE: J. Frederick Motz

TIME: 09:58 12:58 02:05-06:00


CASE # 2:04-cv1045 (Central District of Utah)


CASE NAME: Novell v. Microsoft

F/PLAINTIFF: Jeffrey Johnson, John Schmidtlein, James Lundberg and Erin Burns

F/DEFENDANT: David Tulchin, Steven Hollen, James Jardine, and Steven Aeschbacher X Motions Hearing

Remarks: ARGUED - Motion for judgment as a matter of law (Rule 50), held sub-curia.

Sub curia means no decision was rendered. It sometimes means the judge is waiting for more info on something. They should mark the hearing sub rosa, instead, I'm thinking.

I think we should try to get the minutes of the hearing. It's expensive, and they won't let us have them for public use for 90 days, but I can at least read the minutes that are immediately available and tell you what happened, if I can get them. I'll try to arrange that on Monday, once the court in Baltimore opens. If you are in the Baltimore area, you are allowed to go to the court and ask for the case file there in the courthouse. The court reporter that day was Mary Zajac, so that's who we'd need to purchase the transcript from.

This is a first for us, for sure. Here's a page on the site maintained by the Administrative Office of the U.S. Courts on behalf of the Federal Judiciary, about the public's access to the federal court system:

Federal Courts & the Public

With certain very limited exceptions, each step of the federal judicial process is open to the public. Many federal courthouses are historic buildings, and all are designed to inspire in the public a respect for the tradition and purpose of the American judicial process.

An individual citizen who wishes to observe a court in session may go to the federal courthouse, check the court calendar, and watch a proceeding. Anyone may review the pleadings and other papers in a case by going to the clerk of court's office and asking for the appropriate case file. Unlike most of the state courts, however, the federal courts generally do not permit television or radio coverage of trial court proceedings.

Court dockets and some case files are available on the Internet through the Public Access to Court Electronic Records system (known as PACER), at In addition, nearly every federal court maintains a web site with information about court rules and procedures.

The right of public access to court proceedings is partly derived from the Constitution and partly from court tradition. By conducting their judicial work in public view, judges enhance public confidence in the courts, and they allow citizens to learn first-hand how our judicial system works.

In a few situations the public may not have full access to court records and court proceedings. In a high-profile trial, for example, there may not be enough space in the courtroom to accommodate everyone who would like to observe. Access to the courtroom also may be restricted for security or privacy reasons, such as the protection of a juvenile or a confidential informant. Finally, certain documents may be placed under seal by the judge, meaning that they are not available to the public. Examples of sealed information include confidential business records, certain law enforcement reports, and juvenile records.

As you can see, we are normally allowed to be there, unless there is some judge rule in a specific case about a specific hearing that privacy is appropriate. I see no evidence of any such decision on PACER. If you are given no notice, the public can't be there, obviously, except by chance. So, I'll try to get an explanation.

Update: Well, here it is. Apparently the judge forgot to post a notice. The change wasn't initiated by him. It was a scheduling change requested by the parties. In short, human imperfection at work. Nothing sinister, so far as I can determine.

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