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The G2 Hearing Transcript, April 26, 2005
Tuesday, February 28 2006 @ 10:51 AM EST

Finally, we have the transcript [PDF] of the April 26, 2005 hearing on G2, Forbes, and CNET's failed attempt to intervene. Our thanks go to Chris Brown this time for obtaining it and scanning it for us.

We learn some interesting things and some questions arise. After reading the transcript, I understand why G2 wanted to do this. But my question is: what was Forbes' interest? CNET? I think we get a clue.

My favorite moment is at the very beginning, when Judge Kimball tells the G2/Forbes/CNET attorney, "If it helps, I've read this stuff." That should have been their first clue they were not going to prevail.

Then the attorney asks, "I suppose since we are strangers to the case, it's a fair question to ask why are we here. Why are my clients interested in this case? I don't think it's a secret." At that point Judge Kimball interrupts: "You want in, and you want to see everything." The attorney foolishly in my opinion says, "That's exactly right," and that is when he certainly had to lose. And they did. He says, "There are businesses being made on the perception of this case now on media corporations that are in this country and other ones." That is how he explains their interest, and that may explain why they are there, all right.

On page 4, I notice that when the G2 attorney says that G2 publishes a newsletter called LinuxGram, Judge Kimball says, "That's an interesting name." I worry he may have gotten the wrong impression, thinking that someone from the Linux community was trying to intervene. That is false. It was entirely the anti-Linux forces trying this unsuccessful gambit. It reinforces to me how important it is for the Linux trademark to monitored and policed, so such misunderstandings don't arise. Or maybe, being Judge Kimball, he was totally on top of everything and commenting on the oddity of someone who has attacked Linux consistently using the Linux mark for the name of her newsletter.

The rest of the arguments made by the would-be intervenors are a case study in what lawyers sound like when they don't want to say what they really are after and yet they have to say something. So here, the attorney says that the case is the subject of intense interest by the public and regardless of the court's decision ultimately, if "those communities both in this country and other countries are to accept the Court's decision, they need to understand the bases for the Court's decision."

That's not true, for starters. He then makes a patriotic argument that the US has confidence in openness and we preach it in the world and the judge should prove it now to the world. Hrumph. Those are just pound-the-table arguments, the kind lawyers use when they haven't got the law on their side but a client insists they try anyway.

So, why were they really trying to intervene? Listen to the argument that Mr. Stone makes on why SCO's exhibits to its proposed amended complaint (which was ultimately not allowed) should be unsealed:

I can make some suggestions about what I've heard so far. I know what I know about this case primarily from this valuable amendment of the complaint of the deposition of Mr. Paul [sic] Palmisano. I attended that hearing. I know what I know about the documents referenced in those motions and the bases for those motions are what I heard in the hearing. I would say that it seems to me that there needs to be a compelling reason to seal documents that justify this whole new claim, whether they may or may not justify the whole claim, but it may be relied on SCO's claim. And given what I've heard about the documents, there's nothing on their face that makes them appear that they're properly sealed.

So there you have it, ladies and gentlemen. They were there, as I understand his words, to try to persuade the court to let the world see sealed email that SCO wanted revealed. On page 5, the attorney Mr. Stone says this:

And last October, they attended a hearing in front of Magistrate Wells where SCO produced in its motion to amend that the Court heard last week, reference was made to the email sorting in that motion to amend and in open court. At least one of my clients reported on that. Their characteriztion of what happened was questioned by some of these online communities.

Groklaw has had eyewitnesses at every hearing, including the one in question, and no one has ever reported seeing Maureen O'Gara there. For that matter, I don't recall Forbes ever covering any of the hearings, even from afar, let alone this one. [ Update: Chris Brown writes that he saw a Forbes reporter at one earlier hearing, but not at this hearing the attorney was discussing.] As for CNET, I've never understood what CNET was doing in this picture. Why her lawyer said this to the judge is therefore puzzling to me. Later, he does say something that indicates perhaps an acknowledgement that she wasn't there in person but was relying on someone else's report:

And when my client went to verify its source, the hearing had been sealed on the Court's own motion.

If you are an eyewitness, your source is your notes and your independent memory of what you saw and heard. But this is a lawyer speaking, not a journalist, so I can't be sure what he means. The attorney then suggests that the parties give the intervenors some statement as to why the sealed documents were sealed, or alternatively that he be given the right to look at them all and decide whether to challenge. That was a doomed suggestion, of course, and the intervenors were denied.

So why did they try to intervene? I know. It was their devotion to openness and the country's reputation around the world that motivated them.

Finally, what the judge decided to do was what IBM suggested, that the parties review what was sealed to see if anything could be unsealed. That's it. A tempest in a tea pot. And the materials they went to court to get unsealed? The transcript of that hearing remains under seal.


  


The G2 Hearing Transcript, April 26, 2005 | 280 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Well done Chris Brown.
Authored by: Anonymous on Tuesday, February 28 2006 @ 10:59 AM EST
Thanks again.

[ Reply to This | # ]

Corrections here please
Authored by: WhiteFang on Tuesday, February 28 2006 @ 11:00 AM EST
.

---
DRM - Degrading, Repulsive, Meanspirited
'Nuff Said

[ Reply to This | # ]

Off topic here please
Authored by: Chris Lingard on Tuesday, February 28 2006 @ 11:02 AM EST

Please post in HTML, and put in those links, there are instructions at the end of the posting page. But if you cannot do this, post it anyway.

[ Reply to This | # ]

Still under seal
Authored by: Anonymous on Tuesday, February 28 2006 @ 11:05 AM EST
"And the materials they went to court to get unsealed? The transcript of that hearing remains under seal."

Will this ever come out from under seal? Or is this one of those things that will never see the light of day? I don't work for G2, Cnet, Forbes, etc., but enquiring minds want to know.

[ Reply to This | # ]

Eeeehhh
Authored by: ruurd on Tuesday, February 28 2006 @ 11:24 AM EST
Eeeeeh...
So why did they try to intervene? I know. It was their devotion to openness and the country's reputation around the world that motivated them.

I'm afraid that in this case I can't see the joke even if it was sitting on my face...

---
ruurd

[ Reply to This | # ]

Quote from Amy Sorenson
Authored by: tredman on Tuesday, February 28 2006 @ 11:28 AM EST
"...I think it's fair to say that this case has not been without its
time-consuming discovery disputes." -- Amy Sorenson

Wow. Is that not the most complete and total understatement of the 21st
century?

---
Tim
"I drank what?" - Socrates, 399 BCE

[ Reply to This | # ]

An important court case
Authored by: kberrien on Tuesday, February 28 2006 @ 11:54 AM EST
Well, seeing how this is such an important court case that effects the
industry...

I fail to find extensive coverage (much less investigative)coverage come out of
G2, CNET, Forbes. Has IBM called for depositions of these parties, as it would
seem they were compelled to "release dirt" against IBM, which if on
behalf of SCO would bolster the Lanham charges.

[ Reply to This | # ]

The G2 Hearing Transcript, April 26, 2005
Authored by: pogson on Tuesday, February 28 2006 @ 11:59 AM EST
According to G2 et al: if "those communities both in this country and other countries are to accept the Court's decision, they need to understand the bases for the Court's decision."

Our wise PJ commented: That's not true, for starters.

I know I am on shaky ground to question PJ, but I do not understand. If an authority like a court wants to have decisions respected there needs to be some recounting of evidence and the trail of bread crumbs that leads to the finding. Many court judgments I have read go on for pages describing the positions of parties, the precedents, the evidence and the resulting conclusion. Just to give the conclusion resembles ruling by edict. That would undermine the confidence that the result was well founded. An exception that I know is a refusal to hear a case at the supreme court. Usually the court says yea or nay without comment. I believe everyone accepts the impossibility of the supremes hearing every case and the decision to hear being some position of the whole body causes this not to be seen as questionable.

---
http://www.skyweb.ca/~alicia/ , my homepage, an eclectic survey of topics: berries, mushrooms, teaching in N. Canada, Linux, firearms and hunting...

[ Reply to This | # ]

Missing keyboard alert?
Authored by: Liquor A. on Tuesday, February 28 2006 @ 12:33 PM EST
I hope that indications of judicial attitude towards G2 et al is not grounds for bias against NewSCO. Some of the early comments identified as coming from 'THE COURT' were hazardous to my keyboard. I was ready for "you want in, and you want to see everything" because of PJ's comments, but specifically
MR STONE: {....] The court publishes its website online and identifies this as a high profile case. My clients tell me --
THE COURT: Or somebody in the clerks office.
MR STONE: My clients tell me every time they publish this case, they are faced with a blizzard of e-mails of interested parties, parties commenting and criticizing their positions or views in the case.
That gave my keyboard a coffee test. Fortunately, I drink it black. (It's the sugars that ruin keyboards.)

On a completely serious note, however, I wonder why I get the distinct impression that, although they admitted to not having somebody in Judge Wells' courtroom for the improper reading, they could have quoted it verbatim anyway?

---
Liquor A.

[ Reply to This | # ]

So where are the protectors of the trademark?
Authored by: Anonymous on Tuesday, February 28 2006 @ 12:36 PM EST
PJ writes: That is false. It was entirely the anti-Linux forces trying this unsuccessful gambit. It reinforces to me how important it is for the Linux trademark to monitored and policed,

I've been wondering for a very long time, why aren't the protectors of the trademark getting involved in this case. It seems SCO said a lot of false bad things about Linux; and somehow whomever manages the use of that trademark just lets them.

What's going on?

[ Reply to This | # ]

The Motion vs. The Hearing
Authored by: rsteinmetz70112 on Tuesday, February 28 2006 @ 12:45 PM EST
I note the Motion asks to unseal documents sealed by the parties but that the
Hearing focused on the emails IBM claimed were privileged and the hearing
transcript which Wells sealed.

There was no motion to unseal the hearing or to challenge IBM's claim of
privilege.

Its interesting that MOG wanted to read everything. I can imagine the kinds of
vague insinuations based on her access to secret information that would have
lead to in her ramblings.

---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

Judge Kimball irked?
Authored by: grouch on Tuesday, February 28 2006 @ 12:46 PM EST
Page 5 of 35 in the PDF, lines 5 and 6:

[Mr. Stone]: My clients tell me --
The Court: Or somebody in the clerk's office.

Is there a little annoyance there or am I just trying too hard to read between lines?

---
-- grouch

http://edge-op.org/links1.html

[ Reply to This | # ]

Judge Kimball.
Authored by: Anonymous on Tuesday, February 28 2006 @ 12:47 PM EST

On page 4, I notice that when the G2 attorney says that G2 publishes a newsletter called LinuxGram, Judge Kimball says, "That's an interesting name." I worry he may have gotten the wrong impression, thinking that someone from the Linux community was trying to intervene. That is false. It was entirely the anti-Linux forces trying this unsuccessful gambit. It reinforces to me how important it is for the Linux trademark to monitored and policed, so such misunderstandings don't arise. Or maybe, being Judge Kimball, he was totally on top of everything and commenting on the oddity of someone who has attacked Linux consistently using the Linux mark for the name of her newsletter.

This transcipt has shown for the first time that Judge Kimball and the Court are aware of the watching outside interests and how big is their audience.

It makes me feel more confident.

How does everyone act when everyone else is watching?

Well I can think of ONE very notable exception but it is the exception which makes the rule.

:)

Brian S.

[ Reply to This | # ]

The G2 Hearing Transcript, April 26, 2005
Authored by: Yossarian on Tuesday, February 28 2006 @ 01:02 PM EST
> And when my client went to verify its source, the
> hearing had been sealed on the Court's own motion.

Question for the legal mind.

If somebody takes his notes of a court hearing, and the
court decides to seal the records, can that somebody publish
his notes? If yes, what is the meaning of the "seal"?

[ Reply to This | # ]

The sooner this case moves
Authored by: Anonymous on Tuesday, February 28 2006 @ 01:26 PM EST
From Judge Gumby to Judge Kimball, the better. No more bending over backwards
to accomodate, please.

[ Reply to This | # ]

Transcript as text
Authored by: Griffin3 on Tuesday, February 28 2006 @ 02:26 PM EST
Sorry, I should've spoken sooner, I am doing [I have done [I have proofed]] the
transcript as text.

bing!

[ Reply to This | # ]

It was their devotion to openness...
Authored by: Anonymous on Tuesday, February 28 2006 @ 07:14 PM EST
"It was their devotion to openness and the country's reputation around the
world that motivated them."

PJ, this was excellent, but if your tongue gets any further into your cheek
(speaking tongue-in-cheek), it's going to burst through...

Great job, as always!!

You go, girl!

(GL lurker since 2003)

[ Reply to This | # ]

The G2 Hearing Transcript, April 26, 2005
Authored by: tredman on Tuesday, February 28 2006 @ 07:33 PM EST
Y'all are entirely too detail-oriented...

---
Tim
"I drank what?" - Socrates, 399 BCE

[ Reply to This | # ]

What would be the situation if
Authored by: The Mad Hatter r on Tuesday, February 28 2006 @ 08:03 PM EST

As I understand it the intervenors could not show cause for the unsealing (i.e.
their interest was not strong enough for the judge to lift the seal). What would
have been the case if a Linux distributor or Linux Kernal programmer had applied
to lift the seal - what would be the situation then?

I'm asking in part because I'm sick and tired of seeing the word
"REDACTED", and in part because given a view of the sealed evidence
I'm certain that the OSS community could blow this case apart in days.

Ok, ok, I'm impatient <GRIN>.


---
Wayne

http://urbanterrorist.blogspot.com/

[ Reply to This | # ]

Help parsing this quote
Authored by: Khym Chanur on Tuesday, February 28 2006 @ 08:56 PM EST
"There are businesses being made on the perception of this case now on media corporations that are in this country and other ones."

What does that mean? That some media companies are losing money because the public perceives those companies to have made groundless speculations, and they could back up those speculations if they had access to the sealed material? I really can't figure that sentence out.

---
Give a man a match, and he'll be warm for a minute, but set him on fire, and he'll be warm for the rest of his life. (Paraphrased from Terry Pratchett)

[ Reply to This | # ]

OT: Me on the EdgeClick Platform
Authored by: Anonymous on Wednesday, March 01 2006 @ 01:06 AM EST

[Intercepted on te way to /. from some paid PR person.]

Dear Slaxhdot Editor:

We would like to thank you for today's reference that linked to our press
release. We appreciate being noticed by a site so keen on advancements in the
tech world.

We must protest your addition of the gratuitous last sentence and link. They
have nothing to do with our enterprise. They could know nothing of the
development and plan for this announcement. Your quote was misleading:

****"Groklaw also has a few details on their site."***

It was also damaging. They had no details. They just smeared our product and
motives. As you well know, GL is frequented by a rabble of SCO-obsessed.
square-eyed trolls, who sit around in their tinfoil tiaras and babble about
plots in space. They are worse than your site. They are led by a w......

[viril interruption]

=fn

[ Reply to This | # ]

What are you saying, PJ?
Authored by: LarryVance on Wednesday, March 01 2006 @ 05:54 PM EST
But this is a lawyer speaking, not a journalist, so I can't be sure what he means.

Is this a polite way to say that a lawyer (pronounded like liar) is not telling the truth?

---
Never underestimate your influence!
Larry Vance

[ Reply to This | # ]

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