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Here Comes the Judge
Tuesday, June 10 2003 @ 10:25 PM EDT

I promised to share what I have found out about the judge assigned to try this case in federal court in Utah. His name is the Hon. Dale A. Kimball, and it's one of those happy times when the Honorable title does seem to fit.

Judges often let attorneys know their likes and dislikes, to minimize friction and atty learning curves. Here is Judge Kimball's bio and the page where he explains his judicial philosophy. [Update: The page no longer resolves at the Utah Bar site, only on Wayback, after 2006, but here's a modern bio at the Utah District Court website].

Here are some cases he has heard, and what I see is that he isn't intimidated by large corporations or inclined to favor any particular side, but goes entirely on the law and on what appears to be a deep sense of fairness too:

1. In this case, he ruled in favor of a small company that made red yeast/Cholestin, which the FDA wanted categorized as a "dietary supplement" so it could regulate it, but which the judge said was just a food. This was the first test case of the 1994 Dietary Supplement and Health Education Act. You can read about it here and here and here.

2. He ruled against Proctor & Gamble, when it sued Amway in one of its "Satan-worshipper" rumour lawsuits. More here .

3. Here is a case where he refused to ban recreational vehicles on wilderness land owned by the governement. You may or may not like that, but if you read his reasons, you note first that he doesn't care who is powerful and who isn't and he goes very strictly by what the law actually says, not what he might personally like or dislike. That's what judges are supposed to do.

4. Here is a fraud case he handled.

5. Want to see a software-related case? Here is one he handled, Altiris Inc v. Symantec Corporation, where the Appeals Court overruled part of his decision, but if you read the reasoning, you'll see it wasn't because he didn't have a tech clue. Update 12/31/03: I see some comments that tell me that some think Judge Kimball ruled in favor of Altiris. He did not. Yes, that would be Canopy's Altiris.

6. He also sat by designation on ACLU v Johnson, 194 F.3d 1149 , US Ct of Appeals, 10th Circuit, a unanimous decision re child filtering.

7. He handled the review of Zeran v. AOL.

8. Worried he might put Mormons ahead of others because he is one and his last name is Kimball, to boot? Then take a look at Universal Life Church v. Utah. Another interesting case involving Indian religion is here.

9. Here is a trademark case he ruled on.

10. And here is a copyright case he handled, in which he said the plaintiff waited too long to raise his objection. "Had Jacobsen [plaintiff] voiced his disapproval in 1996, Hughes would have had the opportunity to take the offending material out of the books," he wrote in his decision. Because he waited too long, the material had lost its copyright.1 A news story in the Deseret News explains:

"In his ruling, Kimball said Jacobsen did not 'express any disapproval' of the series until 1999, after the third volume had been published. 'Had Jacobsen voiced his disapproval in 1996, Hughes would have had the opportunity to take the offending material out of the books,' Kimball wrote. 'For Jacobsen to wait until three volumes of the series had been published before voicing his disapproval, when it is clear he had ample opportunity to let Hughes know of his disapproval as early as 1996, results in extreme prejudice to Hughes.'

The plaintiff had an opportunity to read the book before publication, but he never finished it. The reasoning in this ruling would appear to be encouraging in the SCO fact pattern, wouldn't you say? SCO, then Caldera, obviously had access to Linux code for years, as well as UNIX code, all the while they were selling Linux products. For that matter anyone can look at Linux source code. But they had access to both literally for years.

11. Complexity is obviously no problem. Here is a Forest Service timber use case he reviewed that will make your eyes hurt just to read it, and he had to write it. Even the caption of the case is complicated.

You can tell a lot about a judge by reading his decisions. In the above list, that would be the Altiris v. Symantec case, ACLU v. Johnson, Zeran v. Diamond Broadcasting, Universal Life Church v. Utah, the trademark case, and the Forest Ranger case. About the only thing I noticed that made me pause was that he appears to use Word to write his decisions so I don't know how much he knows about UNIX/Linux, but I assume he can quickly master whatever he doesn't start out with. He is apparently in the Utah inner circle, for sure.

So what kind of guy is he, outside the courtroom? I found this article he wrote on a conference he attended as a panelist, in which LDS and Jewish leaders met to discuss differences and similarities of outlook in the two religions' views on law, "LDS and Judicial Perspectives on Stories from Jewish Tradition". It's quite interesting, because it clearly shows he has a sense of humour and a clear and logical mind. A Jewish panelist would tell famous stories about Jewish law, and then two LDS panelists would give their reactions. Examples:

"A penniless orphan had been taken in by a prominent rabbi and his wife and given lodging and wages in exchange for services as a maid. Unbeknownst to the rabbi, the young woman had broken a precious household candlestick and the rabbi's wife was taking her before the Beit Din (the local ecclesiastical court), seeking monetary damages. On the morning of the hearing, the rabbi observed that his wife was putting on her formal clothes and inquired why. She explained, whereupon the rabbi began putting on his formal attire and said he would accompany her to the Beit Din. 'Good!' exclaimed his wife, noticeably pleased with her husband's apparent support. 'You don't understand', explained the rabbi, 'I go to testify on the maid's behalf.' 'Why?' asked his stunned spouse. 'Is not my claim just according to the law?' 'It is,' replied the rabbi. 'However, the Torah commands us to protect the widow and the orphan -I go to fulfill God's commandment.'

After the other panelist's blah blah blah on protecting widows and orphans, Kimball's pragmatic reaction, in part, was, "We have here a good rabbi who needs more communication in his marriage."

Another reaction to a different story shows how his brain analyzes problems:

"A landowner employed a group of itinerant day laborers to move barrels of wine. The laborers carelessly handled one of the barrels and it fell and broke, spilling all of its contents. The landowner refused to pay them their wages and seized their knapsacks containing all of their worldly possessions. He then went before the Sanhedrin (the high Jewish court) seeking a ruling that his actions were legal in light of the fact that his damages exceeded the value of both their wages and possessions. The judges agreed with the owner's position as a matter of law. However, they reminded him that the God of Justice is also the God of Mercy. They then asked the owner which aspect of God he wished to encounter when it became his time to be judged. Acknowledging their point, the owner accepted the court's ruling that the laborers were entitled to return of their possessions and to their full wages."

The other panelist said:

"This reminds me of the parable found at Matthew 18:23-34: The Lord forgives his servant 10,000 talents, but the servant refuses to forgive his fellow servant 100 pence. The Lord asks the unforgiving servant, in verse 33, 'Shouldest not thou also have had compassion on thy fellow servant, even as I had pity on thee?'"

Kimball asked: "Were all of the workers negligent or just one? Did one or more act recklessly or intentionally? Should that make a difference? Would you sue a homeless person you hired to work for you when that person broke something valuable? The owner's actions here just seem wrong. What were the working conditions?"

This next story elicited what I found the most telling response:

"A businessman planned to file a lawsuit and had a choice of two jurisdictions. He sought advice from his rabbi as to which jurisdiction would be better. He explained that the judge in one town was renowned for his legal brilliance and copious scholarship. By contrast, the other judge was known for his humility. The businessman suggested the former should be preferred but his rabbi disagreed. The rabbi explained that the brilliant judge would be tempted to use the case as a means to demonstrate his own brilliance whereas the humble judge would be concerned only with discovering and applying what the law truly was."

The other panelist voted for humility being the most, most important quality a judge could have, but Kimball said: "Forum shopping is all right if it's legal. Humility is a marvelous attribute. A cause-oriented judge is a dangerous judge and one cause may be a judge's own brilliance. Is the humble judge also intelligent? Or is he humble and stupid? A stupid judge is dangerous also. If the matter is complex you may want to take your chances with the brilliant unhumble judge."

I don't know about you, but overall I 'd take my chances with this judge any day.

1 This case was appealed and reversed in certain respects on appeal, particularly on the issue of laches:

Because there are disputes as to material facts, we hold the district court erred in granting summary judgment on the laches issue....Although 'it is possible, in rare cases, that a statute of limitations can be cut short by the doctrine of laches,' Rodriguez-Aguirre, 264 F.3d at 1208, we see no reason to supplant the statute of limitations in this case....We reverse the district court's ruling on the summary judgment motion and remand for further proceedings.

Footnote 11 adds:

11. Some circuits use a bifurcated standard to review a district court's grant of summary judgment on a laches defense. For example, the Seventh Circuit held "while our review of the record is de novo in determining whether there are any disputed issues of material fact, our review of whether the district court properly applied the doctrine of laches is under an abuse of discretion standard." Hot Wax, Inc. v Turtle Wax, Inc., 191 F.3d 813, 819 (7th Cir. 1999). See also Wanlass v. General Elec. Co., 148 F.3d 1334, 1337 (Fed. Cir. 1998); National Ass'n of Gov't Employees v. City Pub. Serv. Bd., 40 F.3d 698, 707-08 (5th Cir. 1994). Although we do not adopt this approach, we note our decision would be the same under this standard. Our de novo review of the record convinces us there are genuine issues of material fact. Consequently, we would not need to undertake the abuse of discretion analysis.

In other words, the court found issue not with the reasoning that laches can bar claims, only that in this set of circumstances it couldn't be done on summary judgment, only after a bench trial, because the standard on summary judgment is that if there are any relevant facts in dispute, you can't grant a summary judgment request. Here, they found that there were such. But my point is that the appeals court did not argue that his reasoning was not sound on the matter of waiting too long being a possible defense. So that matter was sent back to the District Court. At that point, Kimball signed an order of recusal, and it was assigned to another judge and eventually settled.

But what is more interesting is the next issue the court reversed on, regarding incomplete expert reports filed, which Kimball had decided not to strike:

Because the district court did not find the expert reports complied with Rule 26(a), and Dr. Hughes and Deseret Book acknowledge the reports were preliminary and incomplete, we turn directly to the issue of whether Rule 37(c) nevertheless allows the district court to allow the experts to testify on the basis of the incomplete reports. See In re TMI Litigation Cases, 922 F. Supp. 997, 1005 n.9 (M.D.Pa. 1996) (holding preliminary expert reports do not satisfy Rule 26(a)); Smith v. State Farm Fire & Cas. Co., 164 F.R.D. 49, 53 (S.D.W.Va. 1995) (same). Rule 37(c) permits a district court to refuse to strike expert reports and allow expert testimony even when the expert report violates Rule 26(a) if the violation is justified or harmless. Fed. R. Civ. P. 37(c). "The determination of whether a Rule 26(a) violation is justified or harmless is entrusted to the broad discretion of the district court." Woodworker's Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999). Nevertheless, we can hold the district court abused its discretion if the decision is based "on an erroneous conclusion of law," Kiowa Indian Tribe v. Hoover, 150 F.3d 1163, 1165 (10th Cir. 1998), or would result in "fundamental unfairness in the trial of the case," Orjias v. Stevenson, 31 F.3d 995, 1005 (10th Cir.), cert. denied, 513 U.S. 1000 (1994).

Although a district court can allow evidence violating Rule 26(a) only if the violation was justified or harmless, Jones v. Lincoln Elec. Co., 188 F.3d 709, 728 (7th Cir. 1999), "[a] district court need not make explicit findings concerning the existence of a substantial justification or the harmlessness" of a Rule 26(a) violation, Woodworker's Supply, 170 F.3d at 993. Nevertheless, the court should consider the following factors: "(1) the prejudice or surprise to the party against whom the testimony is offered; (2) the ability of the party to cure the prejudice; (3) the extent to which introducing such testimony would disrupt the trial; and (4) the moving party's bad faith or willfulness." Id. We conclude the district court abused its discretion by misapplying two of these factors and not addressing the other two factors.

Initially, we note the district court did not address whether the Rule 26(a) violation was justified or harmless. With respect to the first factor, the district court opined Dr. Jacobsen should not have been surprised because experts are often used by defendants in copyright cases. This ignores the purpose of Rule 26(a) expert reports. The reports are intended not only to identify the expert witness, but also "to set forth the substance of the direct examination." Fed. R. Civ. P. 26(a)(2) advisory committee note (1993). Such disclosure is necessary to allow the opposing party "a reasonable opportunity to prepare for effective cross examination and perhaps arrange for expert testimony from other witnesses." Id. Thus, to avoid prejudice Dr. Jacobsen needed to know the substance of the experts' testimony. After reviewing the expert reports, it appears likely the experts' testimony at trial will contain substantially more information than was presented in the expert reports. Dr. Lashner's report reveals she had reviewed Who Refused to Die, the first volume of the Children of the Promise series, and the jacket covers for volumes, two, three, and four of the series. At the time of her expert report she was "in the process of reviewing the remaining materials." Mr. Norman's report "summarize[d] the revenues, expenses and net profits associated with the Children of the Promise series through June 30, 2000." Mr. Rawlins' report warns his "percentages are for explanatory purposes only," and his report "is subject to amendment after additional analysis." Similarly, Mr. Whitman's report states he "expect[s] to do additional research on these issues between now and the trial and will refine these calculation." At trial, it is likely Dr. Hughes and Deseret Book will want Dr. Lashner to testify about her review of the complete series, Mr. Norman to testify about more recent revenue and expenses, and Mr. Rawlins and Mr. Whitman to testify about their refined calculations. We, therefore, cannot agree Dr. Jacobsen would not be prejudiced by the introduction of testimony not contained in the expert reports.

The second factor we consider is whether Dr. Jacobsen could somehow cure the potential prejudice. The district court suggests Dr. Jacobsen could have prevented potential prejudice if he had filed expert reports to support his copyright infringement claim. This finding suffers the same infirmity as the district court's analysis on prejudice. Prejudice results because the expert reports did not reveal what the experts will testify to at trial. Therefore, nothing Dr. Jacobsen could have done prior to filing of the expert reports would have cured the prejudice. Dr. Hughes and Deseret Book argue Dr. Jacobsen could have filed rebuttal expert reports that were similarly general in nature. Again, this remedy would not eliminate prejudice because Dr. Jacobsen still would not know what testimony the defendants' experts would give at trial.

The district court's order does not reveal its analysis concerning the third factor. Even if the district court had made specific findings as to whether the undisclosed expert testimony would have disrupted the trial, the situation now facing the parties is somewhat different. As Dr. Hughes and Deseret Book argue, when the district court issued the order the scheduled trial date was just over a month away. Consequently, the court may have decided it would be less disruptive to allow testimony based on the incomplete reports than to allow Dr. Hughes and Deseret Book time to file complete reports. Since we are remanding this case for further proceedings, trial is no longer imminent and the district court could allow more time for discovery without disrupting a scheduled trial. See Standard v. Union Pacific R.R. Co., No. 98-7134, 1999 WL 992973, at *3 (10th Cir. Nov. 2, 1999) (unpublished opinion) (reversing a district court's discovery ruling because, after a remand, trial was not imminent).

With respect to the fourth factor, the district court did not make a finding as to whether Dr. Hughes and Deseret Book acted in bad faith. Desert Book and Dr. Hughes argue they acted in good faith. They contend their expert reports would have been more complete if Dr. Jacobsen had been more forthcoming in responding to discovery requests. Generally, a court should "'not excuse non-compliance with Rule 26 by one party for the reason that the other party may not have fully complied'" with discovery requests. Carney v. KMart Co., 176 F.R.D. 227, 230 (S.D.W.Va. 1997) (quoting Smith, 164 F.R.D. at 54)). See also Rambus, Inc. v. Infineon Techs. AG, 145 F. Supp. 2d 721, 734 (E.D.Va. 2001). If Dr. Hughes and Deseret Book thought Dr. Jacobsen had unfairly avoided discovery their recourse was a motion to compel. Fed. R. Civ. P. 37.

Assuming, however, Dr. Hughes and Deseret Book acted in good faith, their good faith alone would not be enough to overcome the other factors. If the experts are allowed to testify on the basis of their incomplete reports, Dr. Jacobsen will be prejudiced. Absent more complete disclosure by the experts, Dr. Jacobsen's prejudice cannot be cured. As the case is no longer on the eve of trial, the district court could allow Dr. Hughes and Deseret Book time to file complete expert reports without jeopardizing the trial schedule. If Dr. Hughes and Deseret Book are allowed to file complete reports, Dr. Jacobsen would have thirty days from the time the reports were filed to file rebuttal reports. Fed. R. Civ. P. 26(a)(2)(C). For these reasons, we reverse the district court's denial of Dr. Jacobsen's motion to strike the expert reports. In accordance with this decision, we need not address Dr. Jacobsen's alternative request for additional time to file rebuttal expert reports.

So, that issue was sent back to the district court, and the experts were given time to finish up, and eventually it all settled by stipulation without a trial. There is an interesting partial trial memorandum, in which the defendant argued the issue of laches again in connection with an analysis of copyright infringement tests, and it argued that the appeals court erred by suggesting an argument the plaintiff never raised, but because the case settled, those issues never were decided by that court. It is certainly possible that the trial memo pushed a settlement. It is very persuasive. Most cases do settle prior to trial, particularly when the parties can see which way the wind is likely blowing.

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