Isn't it lovely to have the daily transcripts from the SCO v. Novell trial? We're working hard to prepare them all for you as text. This is the first one, from the first day of the trial that began on Monday, March 8, 2010. We'll work sequentially, day by day. Here's the PDF, so you can check any details that intrigue you. I thought I'd share with you my impressions of opening day. I want to explain a few things.
This is technically not the trial itself, but jury selection and instructions to the jury from the judge, the Hon. Ted Stewart. The actual trial didn't start until the following day. If SCO was hoping for a jury that was tech-challenged, they certainly did not get a jury pool like that. And the number of potential jurors who knew about Linux, had friends or relatives that used it, or who used it themselves was strikingly high. Either Utah loves freedom or someone has been seriously underestimating how many people in the U.S. use Linux. Maybe a little of both. Judge Stewart told SCO that he wasn't going to remove people from the jury just because they knew what Linux was or used it, but a couple of them got weeded out for other reasons.
The day begins with some initial judge/lawyer brainstorming, and then the jury pool is brought in, all 52 of them, and the process begins unfolding. The clerk was expecting 55, but there are always a few that don't show up due to illness or unforeseen occurrences. Judge Stewart tells them how grateful everyone is that they are willing to serve. He tells them that juries are necessary for the legal system in the US to work:
If
we did not have individuals such as you who are willing to
take your time to be here to allow us to select a jury, and
those of you 13 in number who will ultimately be asked to
serve as jurors in this case, if they were not willing to
serve, then our entire judicial system would collapse. And
if we did not have an operating judicial system in this
country, we would not have a country. That's true, by the way, not hyperbole. Juries do play a vital role. And the judge tells them that they'll get out usually by about 1:30 in the afternoon, so they can serve without it being unduly a hardship. So then each one tells a little bit about him or herself, answering a list of questions from the court. And the judge and the lawyers on both sides are listening and observing carefully. At least one jury consultant is present. They have to get from 52 down to 13.
They each, one by one, tell what kinds of books and magazines they like, what their hobbies are, whether they have family or friends who are lawyers or in the legal field. Prospective juror 3 says one of her hobbies is computers and she reads a lot of computer magazines. She works in a library. If SCO was counting on a jury of ill-educated old fogies, that didn't happen at all. Several are young adults, still in college or working toward an advanced degree. One prospective juror is older, with grown middle-aged children and he has a masters degree. Another has a Phd. Another says her hobby is "researching any topic that comes to interest" her. Another is an engineer. Another says he enjoys technology type things, and he looks forward to serving on the jury. One says her hobbies are football and being a mom. Another says he manages a nonprofit group of jugglers as his hobby. "An odd club to belong to, but it's interesting," he says. Lots of outdoors-y hobbies.
These are endearing folks, a broad variety of types. The juggler manager has an MBA. Another is a landscape architect. Another sells construction equipment. Another has a tree farm. One is an IT consultant. He likes to read computer magazines too. Another likes to read classical literature and both Smithsonian and National Geographic magazine. Another does welding sculpture. One's a paralegal. Another has a son who writes software and is a student. Another's a disabled veteran. Some are home-grown Utahns. Lots are not. They have to tell what their spouses or ex spouses do for a living, too, and one says he doesn't know what his ex does, and he doesn't want to know what she is doing. It made me smile. After they each answer the written questions, the voir dire begins, with the judge asking them questions. He first wants to know if serving on a jury for a 15-day trial will be a hardship for anyone. Several stand up, indicating it would be. One is about to give birth, and she can't drive herself to court, because she can't fit behind the wheel any more. After each explains why it would be a hardship, the judge asks any to stand up if they have heard of the SCO-Novell case. Then he asks each of them what they know. But he does it one by one, away from the rest. I think you can figure out why, so that the entire jury pool isn't contaminated by whatever one or two of them read or heard. Your goal is to find people who are not biased and who don't have an opinion already. Next they read off the names of the lawyers and witnesses that will be called by SCO, and each prospective juror is supposed to tell if they know them. Again, the purpose of that is obvious. You don't want Darl's family members or best friend on the jury. Only one prospective juror knows any of SCO's witnesses, having been in the same ward as Ryan Tibbitts. Novell then lists their witnesses and lawyers. Novell's CFO was at the trial, sitting with the lawyers. Maybe we'll find out in later transcripts why. And some witnesses listed never did show up at the trial. Then the jurors were asked if they or any family members were computer programmers or employed by a computer company. Several respond. One has an uncle who works for Microsoft. Another has relatives who worked for Novell.
Did they know what Linux is? Some did. One built his own computer and put Linux on it. Another tried to do that, but it didn't work out well. Some heard of it, or knew people who used it, or in their employment other used it. Then this: JUROR NO. 21: Juror 21, I have done some pearl
scripting in Linux.
THE COURT: You've done some what?
JUROR NO. 21: Pearl scripting. It's a program
language primarily on Linux. I loved that, "You've done some what?" Another juror says her family uses Linux:
JUROR NO. 26: Juror number 26. I personally do
not know a lot about Linux, but by husband and my sons do.
We have approximately ten to 15 computers in our home, half
of which are Linux based and half of which are Windows
based, or others. I look at my book shelves and I see
Linux, Linux, Linux.
THE COURT: Thank you.
JUROR NO. 27: Juror number 27. Both of my
parents use Linux a lot, but they are working engineers.
THE COURT: You don't have any personal
familiarity with it, though?
JUROR NO. 27: No. Mom, dad. What happened? Kidding. Not everyone even cares about computers. But seriously, doesn't this surprise you a little bit? It makes me want to visit Utah.
Another prospective juror had used Linux programs, and another was a programmer:
JUROR NO. 28: Juror number 28. I have used
multiple Linux programs in my field. I haven't currently
used them for probably the past five or six years.
THE COURT: All right. Thank you.
JUROR NO. 41: Juror 41. I have both used and
built software for Linux distributions over the past 15
years.
THE COURT: Thank you.
JUROR NO. 44: Juror 44. I've heard of it in
passing. Just that it's another option besides Windows. I
thought it was a free operating system.
THE COURT: Thank you.
JUROR NO. 46: Juror 46. I haven't personally
used it, but I have a lot of friends who are big fans of
Linux.
THE COURT: Thank you. See what I mean? How about Unix, anyone use that? The pearl scripter had. No one else. Finally, the judge and the lawyers question the prospective jurors who said they'd heard of the case. The amount of awareness of the case is mighty slim, but one juror suddenly realizes that Darl McBride is a neighbor, having recognized Darl's wife in the courtroom. The McBride house was for sale, we learn, and there was some talk in the neighborhood that things were getting tough. The juror thinks she can be fair, but she expressed it will feel awkward. Mrs. McBride saw her in the group, and the juror sensed she wasn't happy to see her there. The judge decides to strike her from the jury along with the pregnant woman and some in school, anyone who would suffer from being on the jury. The judge says he isn't going to remove from the pool a juror just because they use Linux after SCO's Brent Hatch begins in the confab with the lawyers and the judge to discuss who should get axed, and he seems to find Linux use a problem. And there are a couple of prospective jurors who had read a little about the case. One is mentioned by SCO, and there is discussion about him reading a little about the case on Wikipedia. Apparently he didn't read much, because he says the judge's brief description of the case was more illuminating than what he'd read. He didn't read Groklaw, I gather, from this remark from Brennan: MR. BRENNAN: He also said he learned more about
the case in the Court's limited introduction than he did in
any article that he read. Nothing that the Court disclosed
today would indicate a prejudice or an interest one way or
another, it was a neutral description, and he said he
learned more that way.
I do think that he didn't read any of the blogs or
other sites that are following the case that may have said
something -- I'll use the term more insightful or more
weighted on one side or the other. Wikipedia material has
never been cited as a site. So they keep him. SCO's Singer lodges an objection, which is noted. After the judge strikes those he picks, then the lawyers get to strike without having to give a reason, and then the jury is formed, 13 who have survived the pruning.
But on this day, you also see a lot of housekeeping, which is normal at the start of a trial. The parties, with the judge making decisions one by one, present him with various questions about what to do about various issues. One here was how to handle it that one witness, Jack Messman, wouldn't be available until late in the trial. SCO, as the plaintiff, would go first, presenting its witnesses, but what about Messman, who wouldn't be in Utah until during Novell's side? They wanted him early. Should they play video of his deposition, then do live questioning when he arrives? That would mean interrupting Novell's flow of witnesses, and it's not ideal from SCO's point of view, but Messman can't get there sooner, so it is what it is.
Another issue was how to handle evidence that speaks to the various issues that the parties agreed the judge would decide, not the jury. Should the jury hear everything on those issues too? Or just the parts that they would decide? Should they be told, alternatively, that they'd hear things that they wouldn't be deciding? The judge finally decided on the latter, after his law clerk emailed him the suggestion and it matched Novell's Sterling Brennan's. There is also a dispute between the parties as to whether they can mention Novell registering copyrights in opening remarks. You will see mention of something called the Noerr-Pennington doctrine, and here's what that is, as explained by LectLaw: In general, an effort to influence the exercise of government power, even for the purpose of gaining an anticompetitive advantage, does not create liability under the antitrust laws. In Noerr, the Supreme Court held immune from antitrust liability a combination of rail freight interests which was formed in order to have legislation passed that would grant the members of the combination a competitive advantage over truckers. Noerr, 365 U.S. at 145. The Supreme Court has read Noerr broadly: "Noerr shields from the Sherman Act a concerted effort to influence public officials regardless of intent or purpose." Pennington, 381 U.S. at 670. "Joint efforts to influence public officials do not violate the antitrust laws even though intended to eliminate competition." Id. The Supreme Court has applied the Noerr-Pennington doctrine to courts and administrative agencies. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510-11 (1972) (California Transport). The Noerr-Pennington doctrine thus protects those who attempt to use the power of government organs, including the judiciary, to further private ends.
There is an important exception: the Noerr-Pennington doctrine does not protect litigation from suit under the antitrust laws if the litigation is a "sham." The Supreme Court in Noerr recognized that if an action "ostensibly directed toward influencing governmental action, is a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor [then] the application of the Sherman Act would be justified." Noerr, 365 U.S. at 144. See also California Transport, 404 U.S. at 511-16 (remanding for determination of whether the sham exception to the general immunity from the antitrust laws applied). Intriguing possibilities, wouldn't you say? At the trial, they were not talking about Microsoft funding bogus lawsuits to interfere with Linux, though. It was in the context of whether, as SCO was claiming, Novell committed slander of title by applying for copyright registration at the US Copyright Office. The idea of the doctrine, as the American Antitrust Institute points out is that you should be able to petition your government without getting sued. SCO wanted the jury to hear about it, in the context of filing in bad faith, which it viewed as falling within the exceptions to the doctrine.
So the discussions are all about what they can and can't show and tell to the jury in opening statements by the lawyers, and you can see the negotiations as they unfold, with one party agreeing as long as they can do the same thing, and such. Novell says SCO can use a Wall Street Journal article in SCO's opening that it wants to use, so long as Novell can use articles too. But SCO's Stuart Singer tells the court that one article Novell wants to use is the one that said SCO was the most hated company in tech, and SCO doesn't want them to use that: MR. SINGER: Your Honor, for certain documents, we
wouldn't have an objection. The Wall Street Journal, we
think, is one thing. But the article which Novell plans to
use in opening, which we objected to, says SCO, our client,
is the most hated company in tech. And if the actual
document were to be admitted into evidence, on the first
page it has prejudicial statements such as they -- referring
to SCO -- are a cornered rat, and I think they have rabies
to boot. So that, we think, is totally improper to go
before the jury.
THE COURT: Counsel, the Court is not going to
allow you to use any exhibit in an opening statement that is
not going to be clearly admissible and the other side has
agreed to it. So until you can get an agreement on it, it
will not be permitted in opening.
MR. SINGER: We understand both of these, then,
will not be. SCO was willing to drop its Wall St. Journal article, in other words, to keep the most-hated-cornered-rat article away from the jury in Novell's opening. Mr. Singer is nobody's fool. And of course, neither is Judge Stewart. Judges know that parties try to tilt things their way, detail by detail, and the judge's job is to prevent that, to keep things fair. It might seem that these are small things, but in a trial, small details are sometimes the very thing that persuades a jury. The jury is sworn in. One frustrating thing is that we don't get to know which of the prospective jurors made it. We know some that didn't, but the ones that survived the pruning process are given new numbers, without letting us know at home who is who. You'd have to have been there. So that was my disappointment from this day. Here's the list of those we know didn't make it to the jury: jurors number 2, 4, 10, 11, 15, 17, 18, 21, 22, 26, 30, 31, 34, 37, 38, 41 and 46, all struck for cause. What's not completely clear is which ones the lawyers struck. They each got three. We know the ones specifically mentioned in the transcript, but there are many blanks. I piece all the hints together and I think number 36 made it. But I can't tell for sure on any others. Juror 41 is one of the Linux people struck. And 21 was our perl coder, but he was also in a hardship situation, so he wasn't so keen on serving, and they let him go. He also had relatives who had worked at Novell and left "under circumstances that left them unhappy". Prospective juror number 15 had a paralegal sister, but that isn't why she wasn't chosen. She worked in a school setting and she was worried about missing classes, as she was the only one who knew how to teach that particular computer class. 26 was the one whose husband and sons used Linux, and that was the one prospective juror who got the axe because of it, because there was a worry by everyone but Novell that she might talk about the case or be influenced about the case by family members, particularly in that they all seemed to work together in business and were therefore together a lot. I gather the worry was that the family members who loved Linux wouldn't be able to resist talking to her about it, once they learned what case she was assigned to. And that's probably true. The juror who knew Ryan Tibbitts, SCO's general counsel, because of being in the same ward, worried Novell: THE COURT: Is there anyone else that you want dismissed for cause?
MR. BRENNAN: I would like to talk about juror number 22, Your Honor.
THE COURT: This is the lady who knows Mr. Tibbetts from 20 years ago.
MR. TIBBETTS: Do you want me to step out?
MR. BRENNAN: No, Ryan. My view of that is, from my own experience in the LDS culture, when people are in the same ward, they do form a unique and special relationship. They may not be close personal friends, but there's a tie that develops. And I think that presents an awkwardness of its own sorts.
THE COURT: Mr. Hatch, do you wish to respond?
MR. HATCH: I would say ten years ago, that's sometime ago.
THE COURT: I think it's best that we dismiss juror number 22 for cause, then. The reason why, I don't want the possibility that after she serves, it doesn't go well for Mr. Tibbetts' client, they met on the street, she's worried what happens if I see him. That's something we don't need to have. The woman who recognized Mrs. McBride is let go too, for the same reason presumably. And so it went. And then when all the decisions are made, the judge gives the new jurors their instructions, including this significant bit: This is a civil case. Plaintiff has the burden of
proving its case by what is called the preponderance of the
evidence. That means plaintiff has to produce evidence
which, considered in the light of all the facts, leads you
to believe that what plaintiff claims is more likely true
than not. To put it differently, if you were to put
plaintiff's and defendant's evidence on opposite sides of
the scales, plaintiff would have to make the scales tip
somewhat on its side. If plaintiff fails to meet this
burden, the verdict must be for defendant. And as we know, that is exactly what happened.
Keep in mind that the PDFs have line numbers, which we've removed for readability, particularly for those dependent on screen readers. But eventually we will try to produce line numbered versions as well.
Update: Using some geek fu, which I would rather not explain since it depends a little on cluelessness on the part of others which is sometimes helpful for geek fu, I now believe the final jury, was 1, 3, 6, 8, 9, 14, 19, 20, 23, 24, 25, 27, 29.
Update 2: Here's the text version of the transcript with line numbers preserved.
Update 3: Groklaw member Webster sent me something interesting. He drew up a sample [PDF] the kinds of things a lawyer is writing on his pad -- or with Big Law on his form -- as each juror is speaking and answering questions. Plaintiff's symbol in legal stuff is pi; the defendant's is delta, so as you go through this sample, you'll see those symbols, one or the other, for each juror, along with notes. One of the things the lawyers are tracking is whether they think the prospective juror would be more likely to lean one way or the other. Sometimes they hire specialists who do nothing but try to pick the very best jury from the standpoint of the client. I gather from the sample that lawyers' handwriting is on a par with doctors'.
********************************************
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
_______________
THE SCO GROUP, INC., a Delaware
corporation,
Plaintiff,
vs.
NOVELL, INC., a Delaware
corporation,
Defendant.
_________________________________
AND RELATED COUNTERCLAIMS.
_________________________________
Case No. 2:04-CV-139TS
________________________________
BEFORE THE HONORABLE TED STEWART
---------------------------------
March 8, 2010
Jury Trial
Jury Selection
REPORTED BY: Patti Walker, CSR, RPR, CP
[address]
A P P E A R A N C E S
For Plaintiff:
Brent Hatch
HATCH JAMES & DODGE
[address]
Stuart Singer
BOIES SCHILLER & FLEXNER
[address]
Edward Normand
BOIES SCHILLER & FLEXNER
[address]
For Defendant:
Sterling Brennan
WORKMAN NYDEGGER
[address]
Eric Acker
Michael Jacobs
MORRISON & FOERSTER
[address]
SALT LAKE CITY, UTAH; MONDAY, MARCH 8, 2010; 8:00 A.M.
PROCEEDINGS
THE COURT: Good morning. We are here in the case
of SCO Group, Inc. vs. Novell, Inc. This is case 04-CV-139.
Representing the plaintiff in this case is Mr. Brent Hatch,
Mr. Stuart Singer and Mr. Ed Normand. Is that correct?
Mr. Rick Fuentes is here as a jury consultant. Welcome.
On behalf of defendant we have Mr. Michael Jacobs,
Eric Acker and Sterling Brennan. Good morning to all of
you. I understand at your table is Mr. Dana Russell, Novell
CFO, and Mr. -- is it Mr. or Ms. Tracy --
MR. BRENNAN: Ms. Tracy Farrell. She will be here
shortly.
THE COURT: Tracy Farrell, who is also a jury
consultant.
Counsel, let me go through a few matters here and
then I'll see whether or not you have anything that is not
covered.
Let me again remind you how we're going to select
the jury. As soon as we've taken care of these preliminary
matters, the Court will recess until the potential jurors
have come down.
Sandy, do we have an idea how many jurors there
are?
THE CLERK: I think there is going to be like 54.
3
THE COURT: She had asked for 55, and how many
show up, we do not yet know. It will fill the courtroom.
So all those people who are sitting in the seats behind the
attorneys will probably have to find something else to do
until the jury is selected.
The Court will ask the questions. One of the
first questions that will be asked is to have the jurors
stand and answer the juror questionnaire that I hope you all
received a copy of before you left here after the final
pretrial conference. After the Court has asked those
questions that it thinks can be appropriately answered here
in the courtroom in the presence of other potential jurors,
the Court will ask a series of questions that will not be
answered immediately. The Court will then have a brief
side-bar where you will be given the opportunity to request
that I ask additional questions.
After all the questions have been asked, the Court
will then recess and bring those jurors who feel they have
to answer the questions in the privacy of the jury room,
we'll bring them into the jury room with you there and we'll
make the inquiry of them what it is they need to answer. At
that point, I will then inform you of those jurors that I
intend to dismiss for cause.
We'll then return, have all the jurors here in the
courtroom, and we'll then have you exercise your preemptory
4
challenges, and you each get three.
Are there any questions about that process,
counsel?
MR. HATCH: No, Your Honor.
MR. ACKER: No, Your Honor.
THE COURT: I had requested from you that you
supply me with a brief statement that I can read for the
jurors during the process of the voir dire, but I have not
seen it, so this is what I intend to ask.
This case involves a dispute between the plaintiff
and the defendant over the ownership of an open-source
computer program known as UNIX. Plaintiff asserts that the
ownership of the copyrights to UNIX transferred from Novell
to a predecessor to the plaintiff in agreements made in 1995
and 1996. Defendant asserts that the agreements did not
transfer ownership of the UNIX copyrights. Other claims and
counterclaims between the plaintiff and defendant flow out
of this dispute. Have any of you heard or read anything
about this case.
Do either of you wish to object to that statement?
MR. SINGER: Your Honor, there is one aspect of
that. First, let me indicate that we were able to work out
yesterday afternoon a joint statement. The one point in the
Court's statement that we think isn't accurate is referring
to UNIX as open-source software. That would be accurate for
5
Linux, but not for UNIX.
THE COURT: If I just said ownership of a computer
program known as UNIX?
MR. SINGER: That would be accurate, Your Honor.
THE COURT: Thank you.
Mr. Brennan.
MR. BRENNAN: Your Honor, as Mr. Singer
indicated -- and we do apologize for the tardiness in
reaching this agreement -- we do have an agreed statement
perhaps we could tender to the Court.
THE COURT: Let me take it and I'll look at it
after we recess and I'll see which one I think meets the
needs of the Court.
MR. BRENNAN: May I approach, Your Honor?
THE COURT: Yes, please.
MR. BRENNAN: Just one comment. From our
perspective, that is Novell's, the virtue of the agreed
statement is it is agreed. And the other issue is in terms
of the issue that will be decided by the jury, that issue is
slander of title claims, not ownership claims. And for that
reason, we believe that perhaps the agreed statement might
be more descriptive for purposes of the jury.
THE COURT: I will take a look at it.
MR. HATCH: Your Honor, I would point out, the
reason we had a dispute is because we had actually asked for
6
some additional language. We think that IBM is
interconnected with this enough that it should have been
mentioned. So that's why we had an extra --
THE COURT: See, that's what I'm not going to do.
I'm not going to get into -- I think it's highly unlikely
that I'm going to agree to your statements because I think
you are both using it to argue the case. That's not what
the Court intends to do. The Court, by making that
statement, just simply wants to bring it to the potential
jurors' attention what this case is about so they can have
their memories prompted as to whether or not they know
something about it.
MR. HATCH: I agree, and we can live with Your
Honor's statement.
THE COURT: All right.
Again, we agreed at the final pretrial conference
that we would have 13 jurors. One will be an alternate
juror, but we'll not reveal to that juror that he or she may
be an alternate until the end of the trial.
Are we still in agreement on that, counsel?
MR. BRENNAN: We are, Your Honor.
MR. HATCH: Yes, Your Honor.
THE COURT: During the course of the jury
selection this morning, I will ask that you introduce
yourselves and everyone at your table, as well indicate the
7
witnesses that you intend to call. I believe I mentioned to
you that I would ask that you identify them with something
as simple as who they work for, where they live, nothing
extensive, but some identifying characteristic to bring some
context to the name of the individual. And I'm sure that is
going to be easy for you to do, but I just wanted to remind
you of that fact. Again, keeping in mind the whole purpose
of it is to try to make certain we don't have potential
jurors sitting here who may know those individuals. They
may hear a name but not realize they may work for so and so
company, live in such and such a place, and that simply
helps those potential jurors.
Just for your information, it would be my
intention to read the statement of uncontroverted facts
immediately after the preliminarily instructions. My guess
is that, at a minimum, we'll select the jury, give them
preliminary instructions and perhaps the uncontroverted
facts today. As I think we agreed at the final pretrial
conference, if we cannot get both of your openings in today,
we'll hold them over until tomorrow. That's based on the
assumption that you both represented you would take an hour.
Is that still the fact, Mr. Brennan?
MR. BRENNAN: It is for Novell, Your Honor.
MR. HATCH: It is, Your Honor.
THE COURT: Do I understand, Mr. Brennan, you will
8
want to make your statement immediately after the plaintiff,
you will not want to wait until they have presented their
case?
MR. BRENNAN: That would be our preference, Your
Honor.
THE COURT: Let me make you aware now, though it
is a long way away, I intend to instruct the jury with jury
instructions before your closings so you will have the
opportunity of referring to the jury instructions in your
closing statements.
Counsel, a couple of questions have been raised
regarding the designations of depositions. And I will first
have to say to you, that it is my hope that you will work
together and try to resolve those disputes over what
portions of either written or video depositions are to be
presented. In most cases -- in fact, with the exception of
one case that I can think of in my years as a judge, those
have been worked out by the counsel, and it's usually based
upon the premise, okay, we'll compromise on this if you'll
compromise on yours and let's just let it in. I would
strongly encourage you to try to do that.
If you can't, however, and there are still
disputes over portions of depositions, I would request that
at least a day, if not two days before you intend to use it
you submit to the Court those portions of the transcripts of
9
the depositions. Even though we are talking about a video
deposition, I want it in a written transcript form, and then
a notation of the objection to it.
In fact, I'm going to request that it be two days
before because I then will want to have at least one day to
get the other side to make their reaction to the objection
known to the Court. So would you please try to keep those
deadlines in mind. I hope you can work these things out so
there is a minimum of objections being brought to the Court
for the Court to decide.
Do you have any questions about that, counsel?
MR. HATCH: No, Your Honor.
MR. BRENNAN: No, Your Honor.
THE COURT: Thank you.
A question has been raised about Mr. Messman, and
you both have responded in writing. And let me just ask
whether or not either of you wish to supplement what now has
been provided in writing before the Court tells you what I
think I need to do?
Mr. Hatch, you took first shot, then there was a
response. Do you want to reply?
MR. HATCH: Yeah. Just short, Your Honor.
We have since found out Mr. Messman is apparently
going to board meetings, which we believe he could be -- he
could certainly participate by telephone. We think it's
10
prejudicial if they are going to call him live, that we
ought to be able to do the same. He's key enough to this
case that he ought to be called early in the case.
But I think what we were looking for is not really
a violation of the rules. It's no different than -- in a
sense it's slightly different, but within the province, of
taking a witness slightly out of order to accommodate other
witnesses. That's what we have asked.
If they are really not going to bring him live for
our case, then we be able to at least start the case, given
his key nature, leave his deposition open, and allow other
witnesses to be potentially called out of order until we can
complete his testimony. We prefer him here, you know, if
that can be done. If not, leave his testimony open and
allow us to continue the direct when he does arrive.
THE COURT: Mr. Acker.
MR. ACKER: Yes, Your Honor.
We have no problem with them playing his
videotaped deposition, as the rules would allow for an
unavailable witness in their part of the case. We just ask
that our counters be played with that. If they want to take
him out of order in our case, we're fine with that as well.
They can call him live and leave their case open until he's
available on the 24th. He's out of the country on business
starting tomorrow through the 21st of March.
11
THE COURT: I have no reason to presume that you
are not representing the facts when you say you have no more
control over him, that you've got him to agree to come here
for your case.
So, counsel, the only question the Court would
have, presuming that to be true, is whether or not it would
be appropriate to have your case include both the live
deposition as well as the live witness. And that does
concern the Court a little bit. I would much prefer that
you simply not rest on your case and then present
Mr. Messman as your witness when he is here available and
have the other side deal with it with their case on cross
or, in effect, redirect because they are calling him as
well. I would prefer that to a partial video deposition and
then bringing him on live later.
MR. HATCH: The problem with that is he's a key
witness and we really need to have -- you know, it really,
messes up our presentation of our case if we're not allowed
to put him on early -- very early in the case. If they are
saying they don't have control over him, we don't even know
when he shows up, which literally could be the last day of
witness testimony after three weeks, whether he will even
show and we end up reading the deposition anyways.
THE COURT: Would you object to them being allowed
to designate portions of his video testimony during your
12
primary presentation by video deposition?
MR. HATCH: That would be fine, Your Honor.
THE COURT: Is that all right?
MR. HATCH: Sure.
THE COURT: Let's do that. Why don't you work out
his presentation and then you call him.
MR. ACKER: We've already given them the clips.
The clips are done. So if they want to play the video, they
play their video, our video, and he will be here on the
24th.
THE COURT: But it is still presumed you will not
rest until after he's been presented on the 24th?
MR. HATCH: Yes, Your Honor. The only opposition
would be when he comes back, do we continue or do they --
who calls him first? It would still be our case.
THE COURT: It would still be your case, yes.
MR. HATCH: Thank you, Your Honor.
THE COURT: Counsel, let me make you aware that it
will be my intention, after the jury has decided this case,
that I will request of you proposed findings of fact and
conclusions of law on those issues that will remain for the
Court -- which as it has turned out have been more than I
expected -- probably within ten days of the trial ending. I
understand you are receiving daily transcripts, so I think
you ought to be able to monitor that information. So keep
13
that in mind. And if that seems difficult at the end of
trial, if you want to argue for a length of time beyond ten
days, I will certainly give you a chance to do that. But
that's what I would have in mind. What I mean by that, on
the same day you will both present to me your proposed
findings of fact and conclusions of law on those issues for
the Court to decide.
Any questions about that?
MR. SINGER: Your Honor, not about that but about
the related issue. It's our understanding that in the
course of this trial we'll present the testimony that's
relevant to the issues that Your Honor will be deciding in
the ordinary course of our case, and then the proposed
findings and proposed conclusions of law will be the
arguments, so to speak, on that and we don't need to address
that in front of the jury in terms of argument.
THE COURT: Mr. Brennan.
MR. BRENNAN: Yes. Thank you, Your Honor.
Reflecting upon that, we actually have a different
suggestion that we would like to tender to the Court. One
of the issues that we have here is that essentially there
are four claims that are before the Court, some jury issues
obviously, and some Court issues. The ones that we
understand that are to be decided by the jury are limited
solely to the respective slander title claims, whereas the
14
specific performance and the breach of the implied covenant
claims have been agreed to be Court issues.
We think that we run the risk of confusion to the
jury if we are presenting evidence that is solely limited,
for example, to the breach of the implied covenant claim
that does involve IBM, where the jury will be hearing
evidence on the issue, they won't be deciding it, they won't
be given instruction, and it will be difficult and we
believe, as I said, confusing to the jury to try to parse
through that.
Our suggestion is there is a way to deal with that
that we hope would minimize inconvenience to the jury and
also limit inconvenience for the Court. Here's the
proposal. We think that there are a limited number of
witnesses who might be called that would have testimony or
present evidence, for example, that go to the issue of the
breach of the implied covenant claim. That has to do with
this waiver issue under the asset purchase agreement, and it
does involve the waiver relative to IMB and others. We
believe, from Novell's perspective, it's probably just two
or three witnesses, at most, that Novell would be tendering
that would provide evidence on that subject. They likely
would be the same witnesses that would be presented through
cross-examination or otherwise by SCO Group.
The suggestion that we make is that for those
15
witnesses, we could identify in advance to the Court when
they would be called. They could remain an extra 20, 30
minutes, whatever the time frame would be, after the jury is
excused, and the testimony that's relevant solely to the
issues decided by the Court could be presented then. They
could be a lengthy exposition. On Novell's side, we think
it will go pretty quickly. But that way we would avoid, I
think, the jury wondering about issues and claims that it
won't decide.
So that would be our suggestion. We think it can
be done efficiently. We think we can avoid prolonging a day
for Your Honor and also avoid confusion for the jury.
THE COURT: Thank you.
Mr. Singer, your response.
MR. SINGER: Your Honor, first of all, we think
virtually all of the evidence that would come in is going to
be relevant to the issue of intent. These events occurred
during the same period of time. And it is part of our case
to show that relationship with IBM, their waiver to claims
that also prompted these slanders of our ownership of the
copyright.
Secondly, the same witnesses, and there are more
than three or four, who testify about the intent of the
agreement -- for instance, Mr. Frankenberg, who is the first
witness we're going to be calling -- who also have things to
16
say about the intent of this provision of the agreement. So
a number of these witnesses are no longer involved with the
parties and it would be an inconvenience for them to have to
split up their testimony in that way.
The principal point I would make, I think almost
all of this is going to be relevant to the issue of the
intent by Novell during this same period of time.
THE COURT: Counsel, thank you.
The Court, I think, is very sympathetic to
Mr. Brennan's point. I, in turn, have worried a little bit
about that. So what I'm going to request is if there is in
relation to a specific witness a -- first of all, I do not
intend to make any witness come back to testify separately
on those issues for just the Court. But if for any witness
the timing of it is such that we can clearly excuse the jury
early at the end of the day, or perhaps hold them and have
them take a longer lunch break, or something like that, to
finish up a witness and let me hear the evidence, the
testimony alone without the jury, then let's do that for a
specific witness. But let's not try to make a firm rule for
all those witnesses that will deal with those issues at this
point in time. We'll have to play it by ear as the trial
unfolds.
MR. BRENNAN: Thank you, Your Honor.
Your Honor, just one afterthought. My apologies.
17
I wonder if there might be wisdom in some sort of brief
instruction to the jury that they might hear some matters
that don't pertain --
THE COURT: Actually, Mr. Copeland sent me a note
while we were talking and he made that very suggestion. So
I think if you want to include that in your -- if you want
to -- well, I have one right here. Never mind. We'll give
them that instruction, what my law clerk has just e-mailed
to me.
MR. BRENNAN: Thank you.
THE COURT: All right.
I believe I now have all of the exhibits on my
computer. Maybe I don't. I don't. I don't have
plaintiffs.
Do you have a DVD for me, Mr. Hatch?
MR. HATCH: Yes.
THE COURT: Thank you.
Counsel, do you have anything else before I excuse
myself and we bring the jurors in?
MR. SINGER: Yes, Your Honor.
We had met and resolved most of the issues
yesterday regarding each other's demonstratives for opening.
There remain a number of issues, not a lot, but a few, that
we're going to need the Court's decision on. We could deal
with that now or later.
18
THE COURT: Why don't we deal with it now, Mr.
Singer.
MR. SINGER: Your Honor, if I might approach the
podium?
THE COURT: You may.
MR. SINGER: One of those issues concerns a time
line indicating the claims of ownership which are the source
of the slander. There is an objection by Novell to us
mentioning as part of that the copyright registrations. One
of our claims is that Novell, by registering copyrights in
September of 2003, that in itself was a slander of title,
false statement. Novell had raised a motion in limine,
number eight, on that point. That was denied.
So while we understand they disagree with that
evidence, we think it's appropriate for us to make reference
to it and to include it on the chart, which otherwise they
find unobjectionable.
Mr. Brennan, your response.
MR. BRENNAN: Yes. Thank you, Your Honor.
I believe Mr. Singer accurately describes the
objection. What we had argued to the Court in the motion in
limine was that copyright registration activity falls within
the scope of protected activity. Under the Noerr-Pennington
doctrine, it's a petitioning the government for redress.
The Court did deny the motion in limine but also
19
suggested if there were additional authorities that the
parties wished to submit that appeared to be in line with
the notion that a copyright application was more than a
mere ministerial act, that we ought to submit those
authorities.
In connection with proposed jury instructions, we
did present additional authorities that we believe would be
sufficient to demonstrate to the Court's satisfaction that
the activity involved with copyright registration falls
within the scope of the petition exclusion. We have
submitted those authorities to the Court.
And in my discussion with Mr. Singer yesterday,
when he presented the proposed demonstrative, I suggested
that because it remained a debated issue and we had supplied
the authorities to the Court, that I thought that we ought
to await further resolution from the Court on that
particular issue before it was included in the demonstrative
to the Court.
THE COURT: I will look at those authorities, Mr.
Singer, and hopefully before the end of today I will be able
to tell you whether or not I am persuaded to reverse the
ruling on the motion in limine number eight.
MR. SINGER: May I briefly respond to what
Mr. Brennan just said?
THE COURT: You may, yes.
20
MR. SINGER: Your Honor, we think there may be
fair argument on whether a Noerr-Pennington instruction is
appropriate and have our own authorities on that. However,
there are two points which make clear, in our view, that we
should be allowed to tell the jury about the copyright
registrations. Number one, there is an exception to the
Noerr-Pennington doctrine if the jury were to conclude as a
matter of intent that that was not done in good faith. So
that would be an issue the jury would need to decide in any
event even if an instruction were given. And, second, the
fact their copyright registration was then re-published in
December and other times outside of just the application to
the government made in September. So we believe Your
Honor's decision was correct on the motion in limine and
would like to be able to provide an opening statement in
accordance with that ruling.
THE COURT: All right. Thank you, Mr. Singer.
MR. SINGER: Your Honor, the second issue that we
have concerns a document -- well, there are two documents
which have sort of been grouped together on this. There is
a document that we would like to use in opening, which is a
Wall Street Journal article that was published right at the
time of the sale which talks about the deal and which
Mr. Frankenberg says was an accurate statement and, if it
wasn't accurate, put people on notice in a very public
21
manner as to what was an understanding of the deal to
represent. So we think that that should be admissible.
THE COURT: Are you intending to have it admitted
as an exhibit during the course of trial?
MR. SINGER: We are, Your Honor?
THE COURT: Mr. Brennan.
MR. BRENNAN: Yes. Your Honor, there are several
news reports and articles involved in the case. We
suggested in our meet and confer with plaintiff's counsel
that the agreement of the parties would be that if there
were news articles that would be presented to witnesses to
indicate intent or that otherwise they would be examined
about, that we could reach an agreement that they could be
used for that purpose. If we had that agreement, then they
could use the demonstrative that's been suggested.
If, on the other hand, what was going to be done
is there was going to be an article-by-article objection and
there wasn't going to be a general understanding, at least
these news articles could be used to present to witnesses to
ask them about it, to see if they were aware of it, to find
out what they did in reaction to it, but we have an
objection to using this demonstrative in advance of an
evidentiary ruling.
So Novell's position in this regard, Your Honor,
is we don't have an objection to the use of the
22
demonstrative that's been tendered if there's an equal
understanding that other news articles that would be
tendered for the same purpose could also be used by Novell.
So it's a bit of a tit for tat or quid pro quo sort of
arrangement.
Again, we don't object if, in turn, Novell can use
them for the same purpose and we're not going to have a
fight over that. Otherwise, I think we're going to have to
go through the process of examining each of the articles and
deciding whether they independently can be admitted. And if
we can't do that now, I think it's unfair to present an
objected document as part of opening.
So we're mindful of the suggestion, and we're
agreeable to it as long as it works both ways.
THE COURT: Mr. Singer.
MR. SINGER: Your Honor, for certain documents, we
wouldn't have an objection. The Wall Street Journal, we
think, is one thing. But the article which Novell plans to
use in opening, which we objected to, says SCO, our client,
is the most hated company in tech. And if the actual
document were to be admitted into evidence, on the first
page it has prejudicial statements such as they -- referring
to SCO -- are a cornered rat, and I think they have rabies
to boot. So that, we think, is totally improper to go
before the jury.
23
THE COURT: Counsel, the Court is not going to
allow you to use any exhibit in an opening statement that is
not going to be clearly admissible and the other side has
agreed to it. So until you can get an agreement on it, it
will not be permitted in opening.
MR. SINGER: We understand both of these, then,
will not be.
Your Honor, there is an exhibit which is in the
form not of a videotaped deposition but part of the actual
publication of the slander. It is Mr. Stone, who was an
executive at Novell, standing up in March of 2004 and saying
at a public conference, we still own UNIX. We have a
videotape of that excerpt. Mr. Stone, in his deposition,
acknowledged that it was accurate. And we believe that is
different than a videotaped deposition. That is the actual
evidence and we should be allowed to play that in front of
the jury.
THE COURT: Mr. Brennan.
MR. BRENNAN: Well, I'm not certain how it's
different than a video deposition. At least a video
deposition has the benefit of being statements under oath
rather than some public performance.
THE COURT: Is this video going to be admitted at
trial?
MR. SINGER: Yes, Your Honor.
24
THE COURT: Do you have any reason to believe it's
not going to be admitted?
MR. BRENNAN: We believe that what might be
permitted is the transcript of the presentation, and we
don't have objection to reference to the transcript during
opening argument. The concern we have is akin to what was
addressed with the videotaped presentations during openings.
So our objection is if they want to read to the jury the
statement that was made, they are welcome to do that. But
if we're going to have dueling video presentations during
the opening, we have a concern over that.
THE COURT: Mr. Brennan, I appreciate the
argument, but unless you can tell me you really think it's
going to be precluded by a ruling by the Court, and my
assumption is it's going to be admitted, if it's going to be
admitted as evidence, it's very different from a video
deposition. So the Court is going to permit its use in the
opening.
MR. SINGER: Thank you, Your Honor. That takes
care of the issues that we're aware of regarding the opening
demonstratives.
THE COURT: Mr. Brennan, do you have some as well?
MR. BRENNAN: Excuse me. I've got a frog in my
throat this morning.
There was another demonstrative that we had
25
presented to SCO's counsel, and essentially it was a
reproduction of the minutes of the board of directors of
Novell held the day before the asset purchase agreement was
signed. This was September 18th, 1995 at which the board of
directors of Novell approved the asset purchase agreement.
We do intend to present that to several witnesses during the
course of trial. We do expect that the board of directors
meeting minutes themselves would be admitted and we would
like to make reference to those minutes during our opening.
And, as I understand it, there was an objection raised. So
I wanted to flag that for the Court.
THE COURT: Mr. Hatch.
MR. HATCH: Yes. Your Honor, we objected to this
as a hearsay document previously when the documents were
exchanged between the parties. We believe that the portion
of this particular document that they are offering it for is
essentially hearsay within hearsay. We have cases that
would indicate this type of record shouldn't be admitted for
this purpose, and we are disputing this document.
I'm also a little concerned about how this
document came to be. Your Honor, we met yesterday to
exchange slides. As part of that, you know, seeing other
people's demonstratives and what they were doing, -- and
that always gives the other side a little bit of a peak into
what the other folks are doing -- this is a slide that was
26
produced to us after that meeting. And, you know, we feel
pretty much -- in that meeting where we disclosed
Mr. Frankenberg is going to be our first witness,
Mr. Thompson second, this slide appeared, which directly
tries to contradict Mr. Frankenberg. So I think there is a
little bit of a fair play issue here as well. If we're
going to have those kinds of meetings to be able to
accommodate each side's ability to object, we ought not to
be able to get an advantage like that off it either.
In any event, it's objected to. I believe that
the cases show that it's -- there are probably cases both
ways, but there are certainly cases that indicate -- we have
the Simmons Food case out of the Tenth Circuit, 2003, the
Bookworld Trade case --
THE COURT: Do you that written down?
MR. HATCH: I can give you these.
THE COURT: Do you have some authority for your
side, Mr. Brennan?
MR. BRENNAN: I'm sure we could provide some, Your
Honor.
Just so we're all clear here, these are the
meetings of the board of directors. Mr. Frankenberg is
their first witness. He authenticated the document in his
deposition. He indicated it had been reviewed. These are
official business records of Novell.
27
THE COURT: I am very much inclined to believe
it's going to be admissible, but I do want to give the other
side the courtesy of looking at their authorities. If you
want to give us something as early today as you can, then
we'll look at both of them and let you know before the end
of the day.
MR. BRENNAN: We would be pleased to do that, Your
Honor. And I don't want to belabor the point, there was
certainly no intent to sandbag anyone. We had our meeting
yesterday. When I got back to the office and I realized we
failed to include this, I immediately e-mailed it over
yesterday.
THE COURT: My guess is, Mr. Hatch, you could be
fairly surprised that they were going to offer it, so you
may feel like you were sandbagged, but I don't think that --
again, that you could be fairly surprised that it was going
to be offered as evidence.
MR. HATCH: I understand. There is no question
both sides got to see that and are going to be able to have
at least some sense of what others are doing in their
opening and, undoubtedly, we can't get away from that. I
think creating new slides after that goes beyond that.
Can I submit this on this paper?
THE COURT: Give them to Mr. Copeland.
Mr. Brennan, do you have anything else?
28
MR. BRENNAN: I would just ask Mr. Hatch if at
some point we could get those authorities ourselves.
THE COURT: We'll make a copy of what he just gave
us and bring it right out to you.
MR. BRENNAN: Your Honor, I just have a very few
brief housekeeping matters, if I might?
THE COURT: Yes.
MR. BRENNAN: In our discussion yesterday, we
talked about the best way to handle deposition transcripts.
We're mindful of the Court's instructions, we understand it,
for the strong preference of original certified transcripts.
There are a few instances, I believe, where we have the
transcripts but they may not be the original certified
transcripts. As I understand the agreement, between counsel
at least, we would agree that if we were not able to obtain
in time for presentation in court the original certified
transcripts, that the parties would agree that copies could
be used. But we're also mindful perhaps of the Court's
concern in that regard and wanted to raise that issue with
Your Honor.
THE COURT: If there is no dispute between the
parties, then I will not be unduly concerned with it. I am
surprised that the original transcripts would somehow not be
available. You don't need to explain it. I just was
expressing myself.
29
MR. BRENNAN: I just feel duty-bound to let you
know so there's not a feeling of inadequacy on counsel's
part. These transcripts likely are from a case, the IBM
case, where many depositions were taken where, for example,
Novell was not a party to that action.
THE COURT: That's a quick and easy explanation.
MR. BRENNAN: Thank you.
THE COURT: Did you have anything else?
MR. BRENNAN: Your Honor, there are a couple of
other matters, but I don't think we need to take the Court's
time with them now and we likely could raise them at some
other point. They don't impact what the Court will be doing
this morning with the jury selection.
THE COURT: Mr. Hatch.
MR. HATCH: I promised at the pretrial that I
would introduce Judge Edward Cahn, who is the Chapter 11
trustee, who is with us, and Bonnie Fatell, who represents
him.
MR. CAHN: Good morning, Your Honor.
THE COURT: Good morning to you.
Which reminds me, counsel, during the course of
the trial, is it possible that counsel who are not currently
sitting at the tables may be appearing and examining or
cross-examining the witnesses, or do I have the full cast of
characters in front of me right now?
30
MR. HATCH: You do, Your Honor. We're here.
MR. BRENNAN: Your Honor, it's likely that the
cast of characters you see here for Novell will be the sole
presenters, but there is a possibility that we would have
another lawyer that would be involved in examining, and we
certainly would introduce --
THE COURT: That's all I request is that if
someone else shows up at the table one morning, will you
make certain I'm introduced to that person?
MR. HATCH: Certainly.
THE COURT: Anything else?
MR. SINGER: No, Your Honor.
THE COURT: Mr. Brennan.
MR. BRENNAN: No. Thank you, Your Honor.
THE COURT: I'll excuse myself until we have the
jurors in the courtroom.
MR. HATCH: Your Honor, for this portion, do you
have a problem if we switch to the other side of the table?
THE COURT: No, not at all. Make yourselves not
uncomfortable, but make yourselves where you can observe
what you need to observe here.
MR. HATCH: Thank you.
(Recess)
THE COURT: Good morning, ladies and gentlemen.
This case is entitled the SCO Group, Inc. vs.
31
Novell, Inc. It is case 04-CV-139.
Let me make you aware of the attorneys who are
here this morning. On behalf of the plaintiff we have
Mr. Brent Hatch, Mr. Stuart Singer, and Mr. Ted Normand.
Representing the defendant we have Mr. Michael Jacobs, Eric
Acker, and Sterling Brennan.
Ladies and gentlemen, I want to begin by first
thanking you for being here today. Regardless of whether or
not you are selected as a juror, the fact that you are here
today is a very important public service.
The Constitution of the United States,
specifically the bill of rights, provides that in civil
cases in federal court that there is a right to a jury. If
we did not have individuals such as you who are willing to
take your time to be here to allow us to select a jury, and
those of you 13 in number who will ultimately be asked to
serve as jurors in this case, if they were not willing to
serve, then our entire judicial system would collapse. And
if we did not have an operating judicial system in this
country, we would not have a country.
So I want to, again, thank you for being here, and
I'm speaking on behalf of myself, as the judge, Judge Ted
Stewart, and also the parties and their counsel who have
been introduced to you here today.
I believe it was explained to you upstairs that
32
your role will be to hear and decide the facts in this case.
It will be my responsibility to tell you what the law is.
It will be my responsibility to deal with other issues
during the course of trial that perhaps you will not be able
to understand. But please keep in mind that ultimately your
responsibility will be to decide the facts based upon the
evidence that you hear as presented by the counsel through
their witnesses and exhibits and then to apply the law as I
explain it to you at the appropriate time.
Just by way of introduction, let me introduce
again myself. I am Judge Ted Stewart.
This is Sandy Malley, who is my courtroom deputy,
case manager. Those of you who will be asked to serve as
jurors in this case will get to know her because she will be
largely responsible for taking care of you during the course
of the trial.
This is Patti Walker, who, along with others,
during the course of this trial will be responsible for
making a record, a transcript of these proceedings.
And over here is Mr. Tom Copeland, who is an
attorney, who is a law clerk and has the responsibility of
helping me during the course of this trial.
You have been randomly selected and you are seated
in a specific order so that we can get to know you during
the course of this jury selection. You are numbered juror
33
number one, Mr. XXXX XXXXXX, through potential juror number
52, Mr. XXXXXXX XXXX.
Mr. XXXX, will you raise your hand so we know --
thank you.
During the course of this jury selection, which is
going to take the better part of this morning and perhaps
into the early afternoon, at least on one occasion you will
be allowed to leave the courtroom. I do have to request
that when you return, make certain you sit in the same seat
that you are sitting in right now. During the course of
jury selection, we'll get to know you more by your number
than we will your name. If you don't sit in the same order,
then we become confused very, very quickly.
I am now going to ask you all to stand and raise
your right hand, and Ms. Malley is going to administer an
oath to you. This oath has to do with your conduct during
the course of jury selection. So listen to it carefully.
If you can agree to the oath, I want you to so designate by
saying yes or I do.
(Jury panel sworn)
THE COURT: We'll now undertake the process of
selecting 12 of you to serve as jurors and one of you to be
an alternate juror. As soon as this process is done, we'll
be able to excuse the rest of you. As I indicated, it may
take all morning and perhaps into the early afternoon for
34
this jury selection.
It is expected that this trial is going to take 15
trial days, which translates into three weeks. Keep in mind
that the trials will be run from 8:30 in the morning until
1:30 in the afternoon. I don't believe that there will ever
be an occasion when you will be here later than 1:30, or
perhaps a few minutes after 1:30 if we need to finish up
with a witness or a matter. So I would like you to keep
that in mind when you are asked the question whether or not
that's going to present a problem for you. I'm sure there
are those of you who are thinking how will I conduct my
business, do the other things that I have to do. Please
keep mind you will have your afternoons and evenings free
during the course of the trial.
One exception to that will be at the end of trial.
When the trial is over, you, as a jury, will be asked to
deliberate as long as it takes to reach a unanimous verdict.
So the last date of trial and perhaps for a period after the
last day, you will be here longer than that 1:30 in the
afternoon.
During the course of the 8:30 to 1:30 trial, we'll
take two breaks, roughly 15 to 20 minutes in length, and
there will be some type of refreshments during both breaks.
Let me indicate to you, ladies and gentlemen, that
we are looking for people who are able to accept their
35
limited role as jurors in that, as I've already said, it
will be my responsibility to tell you what the law is and
you are to decide the case, the facts from the evidence that
you hear. We're looking for people who will hear and decide
this case without any bias or prejudice. We're looking for
people who are open-minded and able to listen carefully and
make decisions. We're looking for people who have common
sense and judgment.
I now need to ask you five questions that will
either qualify you or disqualify you to serve as a juror in
this federal court. Please listen carefully. And if you
cannot affirm to all five of these qualifications, I'm going
to ask you to come up and indicate to me why you may not be
able to after you have heard them.
First of all, to serve as a juror in this federal
court, you have to be able to affirm or assert that you are
a citizen of the United States, 18 years of age or older,
and that your primary residence for the past year has been
the State of Utah; second, that you read, write and
understand the English language; third, that you speak the
English language; fourth, that you have no physical or
mental disability that would interfere with your ability to
serve as a juror; and, finally, that you do not have a
charge pending against you for the commission of nor have
you ever been convicted either by your guilty plea or a null
36
contender plea or by a court or jury trial of a state or
federal crime for which punishment could have been for more
than one year, unless your civil rights have been restored
by amnesty or pardon.
Ladies and gentlemen, is there any one of you who
cannot affirm to these five basic qualifications? If so,
would you please stand.
Mr. XXXX, could I have you come forward, please.
(Side-bar)
THE COURT: Ladies and gentlemen, I'm going to ask
that you now stand and introduce yourselves for us by
reading the answers to the questions on that questionnaire
that you received upstairs. And there are a couple of
things that I want to stress. First of all, one of the
questions -- I know I have my copy of it here somewhere --
is what magazines do you read, what books or magazines --
excuse me, the question is I like to read and it's asking
you what books, magazines, newspapers, et cetera. It's
quite common for potential jurors to say I like to read
books. That's not particularly helpful to us, okay. What
we need to do is answer what types of books, whether it's
fiction or biographies or history.
Also, as to magazines, what type of magazines do
you like to read. You don't have to mention all of them by
any means, but if there is just a general category, do so,
37
but please be more specific then simply I like to read
magazines.
Secondly, the last four questions, perhaps five
questions are very often all answered no. And if that is
the case, do not hesitate to say, Your Honor, as to
questions 13, 14, 15, 16, 17 18, the answer is no, instead
of saying no to 13, no to 14, no to 15, no to 16, no to 17,
no to 18. All right. There may be other things that I have
to remind you of during the course of this.
We'll proceed, beginning with Mr. XXXXXX, and then
go, in turn, through Mr. XXXX at the end.
Mr. XXXXX, if you would, please.
THE CLERK: The other thing to remember is the
transmitter is in the end of this mike, so do not hold it
like that.
JUROR NO. 1: I was born and raised in Heber
valley in 1940. I'm a self-employed rancher now. I cut
hair for 47 years in Heber City before I retired. I am
married to former XXXXX XXXXX. She's a retired teacher. I
have four children, four adults. The oldest one is age 49,
is a contractor. The next one is 47, he's a supervisor for
Stein Eriksen Lodge. My third daughter is a housewife and
mother. My daughter is a teacher, my other daughter. I
completed high school and Salt Lake Barber College. My
hobbies are hunting, traveling, any outdoor activities. I
38
ride a lot.
THE COURT: When you say you ride a lot, I presume
you ride horses a lot?
JUROR NO. 1: Right.
THE COURT: Thank you.
JUROR NO. 1: I put in 45 years with the volunteer
fire department in Heber City. I do like to read all
materials. My books vary a great deal. Magazines, I read a
lot of hunting magazines. And I will skip 13 through 17. I
have not served on a jury.
THE COURT: Nor served in the military, correct?
JUROR NO. 1: Nor served in the military.
JUROR NO. 2: My name is XXXXXX XXXX. I'm juror
number two. I have lived in West Jordan, Utah since 1990.
I'm currently employed by a senior citizen recreation center
and attend Westminster College. I'm single. I have no
children. I have some college. My major is social sciences
with an anthropology minor. My hobbies are anthropology,
reading and outdoors. I currently don't belong to any clubs
or organizations. I like to read biographies and fiction.
I have not served as a juror. No to 13, 14 and 15, but my
mom, XXXXXXXX XXXX, is a clerk at the Third District Court
in West Jordan, Utah. And I have not served in the
military.
THE COURT: Thank you.
39
JUROR NO. 3: My name is XXXXXX XXXXX. I'm juror
number three. I've lived in South Jordan since 1998. I am
currently employed by Salt Lake County Library Systems. I
am currently married. My spouse has just graduated from
college and is currently unemployed. I have attended some
college. Currently -- previously it was for radiology
technology and now it's going for computer systems
information. My hobbies, of course, are computers, music,
sewing. I love animals and cooking. I like to read mainly
fiction books. However, because I work in a library and
process magazines, I do read a lot of the computer magazines
and the articles that are in them. I have served on a trial
just last year. It was with the city courts. We did reach
a verdict. It was not guilty. And it was a positive
experience for me.
THE COURT: It was a criminal case?
JUROR NO. 3: It was a criminal case.
THE COURT: What did the case involve?
JUROR NO. 3: A DUI.
THE COURT: All right.
JUROR NO. 3: As to do I have a family member, my
uncle, he's a lawyer in California. What he does, if he's
criminal or civil, I have no idea. I have very, very rare
contact with him. And I think that's everything. I have
not served in the military.
40
JUROR No. 4: Good morning, Your Honor, ladies and
gentlemen. My name is XXXXX XXXX. I'm juror number four.
I currently reside in Riverton and have been there since
late 2005. I am employed by Siemens Medical Solutions, but
I also am going to night school at Columbia College
Missouri. I am singe. I have an undergraduate degree and
I'm working on my graduate degree.
THE COURT: What is your undergraduate degree?
JUROR NO. 4: It's in business, business
administration.
My hobbies are reading, astronomy and,
regrettably, remodeling. I am currently only a member of
HIM and Utah HIM, health information management. I have
served on three jurors before. One was --
THE COURT: Excuse my, Ms. XXXX, you did not
mention what it is you like to read.
JUROR NO. 4: I read mainly histories,
biographies, as well as industry magazines.
I'm in the health care IT industry. I have served
on three juries before. Two were civil trials and in one we
were dismissed before reaching a verdict. The second one we
found for the defendant -- the plaintiff, excuse me. And
then I have also served on one criminal jury where we found
the individual guilty.
THE COURT: Ms. XXXX, let me back up. The first
41
trial, the one you were dismissed, did you actually hear the
case?
JUROR NO. 4: Yes, we did. At the very end of the
trial, after two weeks, when the judge was going to give us
instructions, the attorneys and the judge decided to let the
judge make the final determination. We were dismissed and
did not deliberate.
THE COURT: What was the nature of the case?
JUROR NO. 4: It was insurance and it involved
three parties, trucking type of situation.
THE COURT: The second case, the other civil case,
what was the nature of that case?
JUROR NO. 5: It was two individuals suing each
other and it was an assault case.
THE COURT: So personal injury?
JUROR NO. 4: Personal injury, yes. I'm sorry.
THE COURT: Your criminal case, what type of case
was it?
JUROR NO. 4: It was an assault.
THE COURT: Your reaction to your three times of
service?
JUROR NO. 4: Very positive.
THE COURT: All three?
JUROR NO. 4: All three, yes.
And I have not served in the military. I believe
42
that's all.
THE COURT: Anyone in the legal profession?
JUROR NO. 4: No. No.
THE COURT: Thank you.
JUROR NO. 5: My name is XXXX XXXXXXXX. I'm juror
number five. I've lived in Midvale since 2009. I am
currently employed by the Utah Department of National
Resources, Division of Oil, Gas and Mining. I'm currently
divorced. My former spouse is a registered nurse in
Minnesota. I have two children. Both are adults. My son,
age 23, is a civil engineer in Salt Lake. My daughter, 20,
is a college student at Brigham Young University. My
highest level of education is a master's degree. My college
major was geology. Hobbies and interests are maps, travel,
history, walking. I belong to the American Association of
Petroleum Geologists. I like to read Internet news,
nonfiction books, primarily history, politics. I have
served as a juror on a previous jury trial. It was a civil
trial, in 1995, in Minnesota. We did reach a verdict.
Found in favor of the plaintiff. My jury experience was
positive.
THE COURT: Mr. XXXXXXXX, what kind of a case was
it?
JUROR NO. 5: It's been a long time ago. As I
recall, it was a deal broker that thought he had been
43
cheated, and we found in his favor.
THE COURT: Mr. XXXXXXXX, it's possible that you
have your hand over the receiver.
JUROR NO. 5: I don't know.
I do have a member of my immediate family. My
younger brother is a lawyer for the State of Tennessee. I
have not served in the military.
THE COURT: Thank you.
JUROR No. 6: My name is XXXXXXX XXX XXXXXXX. I'm
juror number six. I've lived in Murray since 2001. I am
currently a student at Salt Lake Community College. I'm
single. I have two children. One in school. One is
younger than school age. My highest level of education is
high school, and I'm in college. My major will be physical
therapy. My hobbies are running, swimming, family
activities, dancing. I belong to my daughter's parent
student association in her junior high. I volunteer for the
softball team. And I assist with the Murray City Youth
Chamber. I like to read newspaper articles, health
magazines, family magazines. And 13 through 17 are no.
THE COURT: What is your current course of study?
JUROR No. 6: Physical therapy.
THE COURT: Thank you.
JUROR NO. 7: My name is XXXXXX XXXXXX. I'm juror
number seven. I've lived in Magna, Utah since 2008. I am
44
currently employed by ARUP Laboratories. I am currently
single. My spouse is employed at ITT. I have two children,
one seven and one one year of age. My highest level of
education is I've completed some college at Salt Lake
Community. It was just general studies. My hobbies and
interests are camping and painting. I don't belong to any
organizations. I like to read romance, mystery and Better
Homes and Gardens. I have not served as a juror in any
previous trial. 14, 15 and 16, no. And I have never served
in the U.S. military.
JUROR NO. 8: My name is XXXXXX XXXXXXX. I'm
juror number eight. I've lived in Salt Lake City since
August 2008. I am currently single. Currently employed by
the Pointe Restaurant at HCI. I currently go to Salt Lake
Community College.
THE COURT: What is your course of study?
JUROR NO. 8: General studies.
My hobbies and interests are running, working out,
hiking, skiing. Do not belong to any clubs or
organizations. I like to read magazines, Sports
Illustrated, ESPN, economic magazines, also a variety of
newspapers, the Salt Lake Tribune and my local newspaper
back in Illinois. I have not served on a jury in previous
trials. No to questions 14, 15, 16. I'm not in the United
States military.
45
THE COURT: Thank you.
JUROR NO. 9: Hi. I'm XXXXXXX XXXXXXXX. I am
number nine, juror number nine. I've lived in Sandy, Utah
since 1972. I am currently employed by Highland Cove
Retirement Community. I am married. My husband is
self-employed. He owns a lawn care business, for 30 years.
We have four children. The first one is 42. She has a
teaching degree, but right now she's a homemaker. My son is
an obstetrician. My other son is an auditor for Workman's
Comp. My other daughter is a hairstylist. I had some
business college. My hobbies are camping, reading,
traveling. I don't belong to any organizations. I like to
read books and magazines, fiction and just family magazines.
I have never served on a jury. I have no other -- I have
not been in the military.
JUROR NO. 10: My name is XXXXXX XXXXXX. I'm
juror number ten. I have lived in Toquerville, Utah, which
is in Washington County, since 2006. I am currently
employed with the Learning Center for Families. I am also a
full-time student working on a master's degree in
organizational performance. And my bachelor's degree is
occupational therapy. I am currently married. I have two
children, two years and three years old. Our third one is
due in June. My hobbies include camping and woodworking. I
am not a member of any specific clubs or organizations. I
46
love reading history and researching any topic that just
comes to interest to me. And questions 13 through 17 are
all no.
JUROR NO. 11: My name is XXXXXX XXXX. I'm juror
number 11. I've lived in Ogden since '07. I am not
currently employed. I am married. My husband is
self-employed. He does irrigation and landscaping. I have
no children, this month. My highest level of education is
high school. My hobbies, I really like to do outdoor
things, hiking. I like art a lot. I don't belong to any
clubs or organizations. I like to read historical and
nonfiction books. I don't really read any magazines. I've
not served on a jury. I do have an uncle in California that
works for Aetna Health Care, I think. He is a medical
attorney.
THE COURT: As an attorney, however?
JUROR NO. 11: Yes. And I've never served in the
military.
JUROR NO. 12: Ladies and gentlemen, I'm looking
forward to serving on a jury without a problem. My name is
XXXX XXXXXXX. I'm juror number 12. I've lived in Draper
since '02. I work for Varian Medical Systems. I am not a
doctor, but I do -- I'm in manufacturing, engineer.
Married. My wife is a teacher in the Granite school system.
Four daughters, three sons, which makes seven children, and
47
ages are 43 to 38, but don't worry about it too much. I was
married before and have a set of twins, so it all adds up.
I have a college degree in engineering.
THE COURT: Mr. XXXXXXX, you need to back up and
give us the occupations of your adult children, please.
JUROR NO. 12: I meant to do that. Well, there
are five engineers -- I'm pretty persuasive it seems -- a
writer and a public relations.
Do you want them broken down?
THE COURT: I think that's all right. Thank you.
JUROR NO. 12: My hobbies are gardening,
remodeling, exercise. My interest is to live to be 100.
Working on it. I belong to a real estate investment group.
I do read a variety of magazines for Newsweek, National
Geographic, Reader's Digest, science news, invention,
technology type things. I enjoy it. 13 through 17 is no.
JUROR NO. 13: My name is XXXXXXX XXXXXX. I am
juror number 13. I've lived in West Valley since 1991. I
currently am employed by Verizon Wireless. Divorced. My
ex-husband is employed by Magnuson Metals as a foreman. I
have two children that are both still in school. My highest
level of education is high school. My hobbies and interests
are just spending time with my family and friends, reading.
I don't belong to any organizations. I like to read
inspirational books, self-help, personal growth, my kids'
48
homework. I have never served on a jury. 13 through 17 are
actually no.
JUROR NO. 14: Good morning. My name is XXXXX
XXXXXXX. I'm juror number 14. I've lived in Salt Lake City
since 1996. I'm currently employed by Medical Group
Insurance Services. I've been married ten years. My spouse
is a former middle school teacher. She is now employed
part-time by the Salt Lake City Catholic Newman Center as a
music director. I do have two children, ages six and three,
that keep us busy. I have a post-graduate degree and my
undergraduate degree was a BFA, fine arts with advertising
design. I have an MBA. Hobbies and interests, I enjoy
music, drawing, painting, outdoor activities, camping and
fishing, family activities such as that.
I do manage a local nonprofit group of juggling
performers. An odd club to belong to, but it's interesting.
Reading material, I have eclectic taste, but I do read the
local newspapers, Salt Lake Tribune. Magazines are mostly
trade magazines, Popular Science, Web development, Web
design as part of my marketing communications employment. I
try to jump between fiction and nonfiction reading material.
As for questions 13 through 17, they are no, no previous
jury experience, and I have not served in the military.
JUROR NO. 15: My name is XXXXXXXX XXXXXXXXX. I'm
juror number 15. I live in American Fork and have been
49
there since 2000. I currently am employed at Alpine School
District as a paraprofessional aide in third grade. I am
married. My husband is retired from the credit union
business. We have three adult children. They are ages 40,
retired teacher and now homemaker. A 34-year-old son who
works in the food service and restaurant industry. A
30-year-old daughter who graduated and is a homemaker as
well -- graduated from college. My highest level of
education is over three years of college. I majored in
elementary education. I enjoy traveling, quilting, family
fun, sewing. Currently remodeling our home and enjoying
that mess. I don't belong to any extra clubs besides church
memberships. I read magazines, National Geographic, Family
Circle, Woman's Day, sewing and quilting magazines, church
books, history biographies and gardening. I have served on
a jury in approximately 2003. We did reach a jury verdict
of guilty. It was a DUI.
THE COURT: Was the experience generally
favorable?
JUROR NO. 15: It was, yes. Thank you.
My sister is a paralegal for Supervalu Company
that just purchased Albertson's. She lives in Boise. And I
have not served in the military, but my husband has.
THE COURT: Thank you.
JUROR NO. 16: My name is XXXX XXXXXX. I'm juror
50
number 16. I live in Centerville, Utah, and have since
2005. I am currently employed by Bingham Engineering as a
landscape architect. I am divorced. My spouse, I have no
idea what she does, nor do I care. No children. My highest
level of education, I've got a bachelor degree in landscape
architecture from Utah State University. My hobbies are
pretty much anything outside, golf, motorcycles, fishing,
camping, waterskiing. I belong to a professional
organization, American Society of Landscape Architects, the
Western States Professional Motorcycle Hill Climbing
Association, American Motorcycle Association.
Reading, I like to read adventure and suspense
novels. And magazines, motorcycles, travel, and design
magazines, but I mostly look at the pictures. I read
professional and trade literature from design, planning and
environmental issues. I have served on a jury. It was a
federal criminal jury, I think in 2001. We did reach a
verdict. It was a guilty verdict. My overall experience I
feel was positive.
THE COURT: Mr. XXXXX, what was the offense? Do
you remember?
JUROR NO. 16: It was a drug case.
THE COURT: Thank you.
JUROR NO. 16: I don't have any family members or
close acquaintances that are in the legal field. And I've
51
never been in the military.
JUROR NO. 17: My name is XXXXX XXXXX. I'm juror
number 17. I live in Kearns. I've lived there for five
years. I've lived in Utah since 1982. I am currently
employed by JB Hunt Transportation. I am married. My wife
is a housewife. I have two young children, one that is in
first grade and the other one is not old enough to go to
school yet. I'm expecting another boy in September. My
highest education is 12th. My hobbies and interests is
model railroading, camping. I am a Park City coach in the
Boy Scouts. I like to read Boys Life and other magazines of
Boy Scouting, model railroading. I have not served as a
juror. And 14 through 17 are all no.
JUROR NO. 18: My name is XXXXX XXXXXXX. I'm
juror number 18. I've lived in Sandy, Utah since 1978. I
have sold construction equipment for 33 years, and I'm
currently employed by Holland Equipment Company in Salt Lake
City. I'm married, for 35 years. My wife is not employed.
I have four adult children. My oldest son, 33, is a Web
administrator. He works for PMI at Thanksgiving Point. My
daughter is 31, she's a medical assistance. I have a son,
29, who is a student at the University of Utah in the
medical field. A son, 25, who is a lab tech at ARUP. I
have a bachelor's degree from the University of Utah in
business administration. My hobbies are flying, hunting and
52
shooting. I am a life member of the NRA. I am currently
the president of the Utah General Aviation Association. I
read the Deseret News every day and I read the scriptures
every day. I also read hunting and flying magazines. I
have not served as a juror. I do have a nephew, Sammy
[redacted], who is a lawyer here in Salt Lake City. I do not
know who he is employed by. And my bishop, Todd Hilbig, is
a lawyer, and I do not know who he is employed by. I served
in the Utah Army National Guard for eight years and achieved
the rank of E-4.
JUROR NO. 19: My name is XXXXXX XXXX. I am juror
number 19. I live in Alpine. We moved there in 2007 from
Texas. Currently I'm just part-time employed by Westfield
Elementary. I am married, for 31 years. My spouse is
retired. I have four children, all married. My youngest
daughter is 20, she is a dental assistant. A 23-year-old
daughter who is a student. A 25-year-old son who is a
student. A 28-year-old son who is a student. We're hoping
to get them through. My highest level of education is some
college in early childhood education. My hobbies are
outdoors, hiking and skiing, that kind of thing. Only
organizations are just church organizations. I like to read
fiction books, entertainment magazines and church books. I
have not served previously on a jury. And all 14 through 17
are no.
53
JUROR NO. 20: My name is XXXXX XXXXXX. I'm juror
number 20. I have lived in Pleasant Grove since 2008. I am
currently employed by Semantic Corporation. I'm currently
married. My spouse is a homemaker. I have two children
under the age of five. My highest level of education is a
bachelor's degree in communications, advertising, marketing.
My hobbies are family activities, watching movies with my
wife. I belong to no clubs or organizations. I like to
read national and local newspapers, fiction novels and
technology and science magazines. I have not served as a
juror or served in the United States military.
JUROR NO. 21: My name is XXXX XXXXXX. I'm juror
number 21. I live in Kearns, Utah. I've lived there since
1993. I am currently employed by U.S. Magnesium as an
independent contractor. I do IT consulting for them. I am
currently married. My spouse is employed by ARUP
Laboratories. I have two children. One is a student. The
other one is 19, and he's in retail sales. He's also a
student. My highest level of education is a bachelor's
degree in information systems. My hobbies and interests are
golfing, motorcycles, scuba diving, family, traveling,
fishing. I don't belong to any clubs or organizations. I
like to read computer magazines and scuba diving magazines.
I read KSL daily. Answers 13 to 17 are no.
JUROR NO. 22: Good morning. My name is XXXXXXX
54
XXXXXXXX. I'm juror 22. I have lived in Salt Lake City
since 2001. I am currently a homemaker. I have been
married for 25 years. My spouse is self-employed. He's an
advertising director and writer. I have four children,
three student age, school age children, and one at the
University of Utah. My highest level of education is a
college degree from the University of Utah. My major was --
a double major in German and history with a teaching
certificate. My hobbies include studying foreign languages,
traveling, cooking, biking, cross-country skiing, gardening.
I belong to the PTA in three different schools. And I like
to read classical literature, Smithsonian magazine, National
Geographic, Salt Lake Tribune, New York Times. I have never
served as a juror. And I have not served in the military.
THE COURT: You have no attorneys who are close
friends or immediate family members?
JUROR NO. 22: Well, how close a friend? We have
a lot of friends that are attorneys, but not that we speak
every day with about cases. But a long list of attorneys,
but not really close friends. How's that?
JUROR NO. 23: My name is XXXXXX XXXXX XXXXXXXX.
I'm juror number 23. I've lived in Mapleton since 2008. I
am currently employed by a disability law firm. I'm
currently married. My spouse takes care of our three
children and works part-time at a pharmacy. I do have three
55
children. One is in preschool. The other two are younger
than preschool age. My highest level of education is a
bachelor's degree from Utah Valley University in paralegal
studies from their school of business. My hobbies and
interests are sports, snowboarding, basketball, fishing,
hiking, camping. I do belong to the United Way organization
in Utah County. I like to read most types of books,
fiction, nonfiction. I read the Deseret News and the Daily
Herald on a daily basis. And that's about it. I have not
served as a juror in a previous jury trial.
My brother-in-law is an attorney. His name is
[redacted]. He owns [redacted] & Associates in Spanish Fork,
Utah. My brother works for him and is in his third year of
law school at the U of U right now. I do work on a really
close basis with five attorneys in Utah. Our law firm is a
nationwide law firm. We have 23 attorneys nationwide. We
mainly do Social Security disability. And I have not been
in the military.
THE COURT: Mr. XXXXXXXX, you are the office
manager for the law firm that you work for; is that right?
JUROR NO. 23: I manage a department of 22
paralegals. But then our law firm has about 130 employees,
so I just manage the department of case managers.
THE COURT: Again, does the law firm work
exclusively with Social Security disability or primarily?
56
JUROR NO. 23: Primarily Social Security
disability. We do some Workers Compensation, personal
injury. We've done some Phen-Phen cases, Vioxx cases, other
types of cases like that. But probably 99 percent of what
we do is disability law.
THE COURT: Thank you.
JUROR NO. 24: My name is XXXXXXX XXXXXX. I'm
juror number 24. I've lived in Midvale since 2009. I'm
currently employed by Silverado Aspen Park Rehab. I am
currently married. My spouse works for Maggie Sottero. We
have no children. My highest level of education is a
bachelor's degree in recreation therapy. My hobbies are
camping, being outside and gardening. I don't belong to any
clubs or organizations. I like to read fiction books, and
particularly World War II fiction. 13 through 17 are no.
THE COURT: Your husband's employment?
JUROR NO. 24: Graphic designer for a bridle
company.
THE COURT: Thank you.
JUROR NO. 25: My name is XXXXXXX XXXXX. I'm
juror number 25. I've lived in the Kearns area since 1980.
I'm currently employed by Wonder Bread and Hostess Cake as a
safety director. I am currently married to the same
wonderful woman for 35 plus years. My spouse is a
homemaker. I have five children, three are adult age. A
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35-year-old who is a distribution manager. A 27-year-old
who is a maintenance worker for US Mag. And a 25-year-old
who is an office worker. I have two small children that my
wife and I adopted. One is age ten and one who is 13. My
hobbies are woodworking, camping and spending time with my
family. I do belong to the U.S. Army Reg Association. I
like to read fictional books and biographies, and read the
newspaper quite frequently. I have not served on any jury.
I have spent time in the U.S. Army from 1973 to 1977 as an
airborne ranger, and I was a sergeant.
THE COURT: Mr. XXXXX, any associations with
attorneys, close personal friends or members of your
immediate family?
JUROR NO. 25: No, Your Honor.
THE COURT: Thank you.
JUROR NO. 26: I am XXXXXXXXX XXXXXXX. I'm juror
number 26. I live in West Valley City and have been there
since 1977. I am currently retired, but I also work as a
substitute teacher for the Granite School District. I am
married, for 49 years. My husband is retired. He mostly
worked in computers. He spent 20 years with Intermountain
Healthcare. I have seven living children, adult children.
My oldest son, 48, works for Onyx Graphics, mostly in
computer areas. My oldest daughter is 44. She works for
data entry at the United States Post Office. My next
58
daughter, 43, works for Roy School District. Next daughter,
42, works for Granite School District. My next son works --
he's a contractor, but currently is selling construction
materials and such to contractors. My son, 34, is a
software writer and a student. He works for Online writing
software. My youngest daughter, 33, is a representative for
a health care insurance company, Altius.
My highest level of education is some college. I
was majoring in elementary education. My hobbies are mostly
my grandchildren. I also enjoy music and camping. I belong
to no outside organizations, other than my church groups. I
like to read church books, magazines. I try to keep current
on the fiction that my grandchildren are reading so I can
have something to talk with them about. I do frequently
read through -- browse through the Deseret News. I have not
served on a jury. 14 through 16 are no. I have not served
in the military, but my husband spent several years with the
Marine Corps.
JUROR NO. 27: My name is XXXX XXXXXXX. I'm juror
number 27. I've lived in Kearns, Utah since 1988. I'm
currently employed by Senske Lawn and Tree Care as a lawn
applicator. I am currently attending school at the
University of Utah. I'm single with no children. My
highest level of education is some college. I'm studying
business administration. My hobbies are sports, political
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science and camping. Mostly I read political science books
and history. I have not served on a jury in a previous
trial. And 13 through 17 are all no.
JUROR NO. 28: My name is XXXXX XXXXXXX. I'm
juror 28. I've lived in West Jordan since 2007. I'm
currently employed by the University of Utah. I am
currently married. My spouse is a --
THE COURT: Mr. XXXXXXX, what do you do for the
university?
JUROR NO. 28: I am a professor slash researcher
in the department of pharmaceuticals.
THE COURT: Thank you.
JUROR NO. 28: My spouse is employed -- well,
she's a homemaker. I have one child under the age of four.
My highest level of education is a Ph.D. My major in
college was biology. And my major for the Ph.D was
biomedical science. My hobbies and interests are football,
movies, music. I belong to the Controlled Relief Society,
the American Society of Gene Therapy, and the American
Association of Pharmaceutical Scientists. I like to read
Southern Living and Parenting, other cooking books. And for
13 through 17, no.
JUROR NO. 29: My name is XXXXXXX XXXXXX. I am
juror number 29. I've lived in Salt Lake since 2007. I
currently work for Overstock.com. I am married. My husband
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did work for the Salt Lake School District, but he now works
for Delta. He was a coach for West High School basketball.
I have three kids. One that is in kindergarten, the other
two are two and three. I am expecting my fourth in
September. I have some college in business administration,
I didn't finish, but I am licensed as a mortgage broker in
Florida. And when I go back, I'm going to try and get my
license in real estate. My hobbies include shopping,
dancing, being with my friends and family, traveling,
surfing the Internet. I belong just to the PTA at my
daughter's school. I like to read Salt Lake Tribune and
then our local newspaper at home, which is the Branston
Herald. And also entertainment magazines, and another
magazines at home called Gotcha. I've never served as a
juror. My uncle is an attorney here in Salt Lake.
THE COURT: What kind of law does he practice.
JUROR NO. 29: I'm really not sure. He does a lot
of things for the Polynesian culture.
I have never served in the military.
JUROR NO. 30: My name is XXXXX XXXXXXXX. I'm
juror number 30. I've lived in Draper for over a year.
Lived in the Salt Lake valley my whole life. I'm currently
employed by Cottonwood Ortho Labs where I'm an orthodontic
lab technician. I'm married. My wife is a homemaker, and
she's going to be going to school for culinary arts pretty
61
soon. I have two kids, both under four. One is almost two.
One is almost four. I studied welding at Salt Lake
Community College for a while, but didn't go into welding.
My hobbies include art, including wire sculpture and
drawing. Then also music. I play drums in a couple of
bands. Spending time with my kids. I don't belong to any
organizations or clubs. I like to read books. My kids make
sure I don't have enough time to read magazines. Most of
the books I like are classic literature like Dante's Inferno
and Treasure Island, stuff like that. Most of these people
are long deceased. The questions 13 through 17 are no. And
I don't know any lawyers.
JUROR NO. 21: My name is XXXXX XXX. I am juror
number 31. I've lived in West Jordan since 1991. I am not
employed, but I am a student at Salt Lake Community College.
I'm currently single. My highest level of education is some
college. I'm doing my generals.
THE COURT: Do you have a major, Mr. XXX?
JUROR NO. 21: No.
My hobbies are snowboarding and mostly sports. I
do not belong to any clubs or organizations. I like to read
mostly fiction books, mostly zombie books. And 13 through
17 are no.
JUROR NO. 32: My name is XXXXXXX XXXXXXX. I'm
juror 32. I've lived in Riverton since 1996. I am
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currently employed with Electrical Consultants, Inc. I am
currently single. My highest level of education is some
college. My hobbies and interests are hunting, fishing and
camping. I don't belong to any clubs or organizations. I
like to read hunting and fishing magazines. And 13 through
17 are all no.
JUROR NO. 33: My name is XXXXXXX XXXXXXXX. I'm
juror number 33. I've lived in Kearns, Utah since 2001. I
am a retired truck driver. I'm currently divorced. I have
no contact with my former spouse. I have no children. I
have some college, just general education. My hobbies and
interests are sports, football. I enjoy camping and
fishing. I don't belong to any clubs or organizations. I
like to read magazines on health and nutrition. I like
Men's Health and Men's Fitness. I've not served as a juror.
I've served in the Air Force, 1975. Rank Airman First
Class.
JUROR NO. 34: My name is XXXXXXXXX XXXXX. I'm
juror number 34. I've lived in Salt Lake City since 1998.
I grew up in Vermont. I am self-employed. I'm a sales rep
for various outdoor and bicycle companies. I travel over
Utah, Idaho and Wyoming. I'm single with no children. I
received my bachelor's degree from the University of Utah in
Spanish and business. My hobbies are mountain bike racing,
snowboarding and skiing. I guess the organization that I
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belong to would be the Cannondale Factory Mountain Bike Race
Team. I race professionally for them. I like to read a
wide variety of books, local newspapers, cycling
publications, outdoor magazines. Let's see, 13 through 17
are all no. I do have two personal friends who are
attorneys, [redacted] and [redacted], both live in Salt
Lake.
THE COURT: Do you know what kind of law they
practice?
JUROR NO. 34: That's a good question. I think
John does mostly corporate stuff. And Jared, he does a wide
variety. He works with a firm, but he does a wide variety
of stuff.
JUROR NO. 35: My name is XXXXXX XXXXXX. I live
in Holladay, Utah and have been there since 1992. I am
currently employed with an insurance company called Civil
Service Employees Group, but we are not affiliated with the
government. I am divorced. My ex-husband retired from
private practice in the business industry. I have one son.
He is a computer programmer, computer analyst. He lives in
Castle Rock, Colorado. My education is some college. And I
was majoring in business. My hobbies are cooking and
interior decorating and gardening. I really like fashion
designing. The books I like are nonfiction and fiction, and
also religious. I have never served on a jury. I do know
64
some lawyers. My brother-in-law is a lawyer in Colorado
Springs. However, he just recently retired and his two sons
took over his private practice. I have never been in the
military. I've never served on a jury.
JUROR NO. 36: My name is XXXX XXXXXX. I'm juror
number 36. I've lived in Salt Lake City since 1983. I am
currently employed by PPG Industries. I sell paint and
coatings to major contractors here in the Wasatch Front. I
am currently married. My spouse is employed by the LDS
Church. She's a secretary for the welfare services
department. I have seven children that are adults. A set
of twins that are 36, both homemakers, girls. A daughter,
35, that's a hairstylist. A son, 34, that's in construction
in Phoenix. I have a daughter, 33, that is a secretary,
accounts payable for a country club in Phoenix. I have a
son, 25, that graduated from the University of Utah. He is
now working for Chevron in finance in Kemmerer, Wyoming. I
have a daughter, 24, that is a secretary for a doctor.
My highest degree of education is high school. I
love sports of all kinds, especially football, old cars,
music and fishing. I belong to the PDCA, which is a painter
decorators council. I like to read magazines, mostly Motor
Trend. I have served as a juror in 2004. We did reach a
verdict. The verdict was guilty. It was a bank -- two bank
robberies, and both defendants were guilty. And I had a
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very positive experience. I do know a lawyer. My
son-in-law, [redacted], has his own firm, and he mostly
does class action. I have not served in the military.
THE COURT: Do you know what kind of class action
lawsuits he handles?
JUROR NO. 36: Some in mortgage and then he does
all other kinds of law also, but I know that's been some of
his bigger stuff.
THE COURT: Thank you.
JUROR NO. 37: My name is XXXXX XXXXXXX. I'm
juror number 37. I've lived in Salt Lake since 1990. I am
a homemaker. I am married. My husband works for Connexsus,
an IT company. Three children, adults. Daughter, age 29,
is a manager of a team of computer programmers. 34, she's a
homemaker. And 36, self-employed wedding and events
planner. My highest level of education is a few years of
college, general studies. I like to garden. I like
exercise. I like to read. No organizations, memberships.
I read the paper, Tribune, daily, Newsweek magazine,
fiction. 13 through 17, answers to all are no.
JUROR NO. 38: My name is XXXXX XXXXX. I'm juror
number 38. I currently live in Holladay. I have been in
the Salt Lake valley since 2001. I am currently employed by
Gold's Gym as a fitness manager, and also attending the
University of Utah full-time. I am single. And my highest
66
level of education, I'm a junior currently. I'm in exercise
and sports science, and also pedagogy, my major. I like
anything that involves activity, weightlifting, dancing, the
outdoors, sports. I enjoy spending time with my nieces and
nephews that I have up here. I read a lot of stuff for
school in the exercise, sports science field, health and
fitness journals, as well as anything sports related. ESPN
on line. It's no to the rest of those. I haven't served in
the military or a jury before.
JUROR NO. 39: My name is XXXX XXXXXXX. I'm juror
number 39. I've lived in Salt Lake City since 1986. I am a
career federal employee with the Bureau of Land Management.
I have 30 years of service. I'm currently single. I have
no spouse. I have no children. I have a college degree,
bachelor of science in forestry and wildlife from Virginia
Tech. My hobbies are hunting, target shooting, and personal
fitness. I'm a life member of Safari Club International and
the National Rifle Association. I read primarily hunting
magazines, a variety of them. I have no previous experience
as a juror. I do have a family member, my older brother is
a senior partner in a law firm in Pennsylvania. It's kind
of a general practice. And I do not have any military
experience.
JUROR NO. 40: My name is XXX XXXXXX. Juror
number 40. I reside in Morgan, Utah. I've lived there
67
since 1976. I'm currently employed and have been for the
past 40 years in the title insurance industry, the past 20
with Mountain View Title and Escrow company in Morgan. I am
married, 42 years. My spouse is retired as a civil servant
at Hill Air Force Base as a branch secretary. I have two
children, 34 and 32. My 34-year-old son is in car sales.
My 32-year-old son is an appraiser and a title officer in
the title industry. I have a bachelor's degree in computer
science. And my hobbies are gardening, hunting, fishing. I
am a member of the Utah Land Title Association. I read the
newspaper, sports, magazines, National Geographic. And the
answers to 13 through 17 are no. I have no one that I'm
close to that's in the law profession.
JUROR NO. 41: My name is XXXXXX XXXXXXXX. I'm
juror number 41. I've lived in Taylorsville, Utah since
1991. Though I'm currently unemployed, my main focus has
been computer programming and electronics. I'm currently
single and have no children. My highest level of education
is some college with mainly a focus on electronic
engineering and computer science. My hobbies and interests
include stain glass work, programming construction and
electronics. I mainly read technical manuals and news
articles. For 13 through 17, the answer is no.
JUROR NO. 42: My name is XXXXXX XXXXX. I am
number 42. I've lived in Farmington since '04. Currently
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retired. Currently divorced. Again, don't know where he
is. Ditto, don't care. No children. Master's degree in
physical education.
THE COURT: Ms. XXXXX, you indicated you were
retired. What did you do before you retired? What are you
retired from?
JUROR NO. 42: From the Davis School District. I
taught for 24 years, and then I was in administration for
nine.
THE COURT: All right. Thank you.
JUROR NO. 42: Historical novels I like. Not
served as a juror. And no to the rest.
JUROR NO. 43: Hi. I'm XXXXXXX XXXXXXXX. I'm
juror number 43. I have lived in Washington Terrace since
2005. I am employed with Intermountain Health Care. I'm
single. I have a daughter. She's two. My highest level of
education, some college. I'm working towards a fashion
design and marketing major. My hobbies include football --
Go Saints. And hobbies, being a mom, music, fashion,
movies, potty training. I like to read everything, mainly
magazines -- I'm really nervous -- and Standard Examiner. I
have not served as a juror. 14, 15, 16 and 17, no.
THE COURT: Ms. XXXXXXX, what kind of magazines do
you like to read?
JUROR NO. 43: Fashion, like Okay, US Weekly.
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Anything to do with somebody else's life.
THE COURT: Thank you. That's a very good answer.
JUROR NO. 44: Hi. My name is XXXXX XXXXX. I'm
juror number 44. I've lived in Orem since 2009. I'm
currently employed at Alpine School District as a junior
high teacher. I'm married. My husband is currently going
to BYU full-time. We have no children. My highest level of
education is a bachelor's degree in math education with a
minor in chemistry education. My hobbies are reading,
quilting, watching movies, taking a break from school. I
belong to the Utah Education Association. That's for
teachers. I like to read fiction. I've not served as a
juror. My brother-in-law is a lawyer. His name is [redacted]. I'm going to butcher the name of his firm, but I
think it's [redacted], something like
that. It's here in Salt Lake.
THE COURT: Do you know what kind of law he
practices?
JUROR NO. 44: I think it's civil, but he doesn't
usually talk to us very much about his cases.
And I've never served in the military.
THE COURT: Thank you.
JUROR 45: My name is XXXXXXX XXXXXXX. I've lived
in Springville since 1950. I work as a school crossing
guard for Mapleton City elementary schools. Before that I
70
worked as a receptionist for a printing company. My husband
works for Tour Ice as a sales delivery person. I have no
children. My highest education is high school. I enjoy
embroidering, reading, going to plays, the symphony. I
don't belong to any organizations. I enjoy all kinds of
books and magazines. I served as a juror in 1983. The
judge threw the case out before it got to the jury.
THE COURT: What kind of case was it?
JUROR No. 45: It was receiving stolen goods.
JUROR NO. 46: My name is XXXXXXX XXXXXXXXXXX.
I'm juror number 46.
THE COURT: Mr. XXXXXXXXXXX, could you wait a
second.
Could we see why the microphone is not working.
Mr. XXXXXXXXXXX, I'm going to ask you to go ahead.
I'll ask you to speak really loudly, okay.
JUROR NO. 46: Sounds good.
My name is XXXXXXX XXXXXXXXXXX. I'm juror number
46. I've lived in Midvale, Utah since 2009. I'm currently
employed by the BYU political science department as a
research assistant. I am currently attending Brigham Young
University. I'm currently single. No children. My highest
level of education is some college. My major is
international relations. My hobbies and interests are
international politics. I study a lot about international
71
economic development. I enjoy distance running. I belong
to BUY Chapters of Students for International Development,
the International Honors Society for Students, Political
Science Honors Society, and Phi Kappa Phi, which is another
student honor society. I like to read political blogs,
newspapers, current events magazines and newspapers. And
the answers to 13 through 17 are no.
JUROR NO. 47: My name is XXXXX XXXX. I am juror
number 47. I've lived in Sandy since 1972. I am currently
employed by the U.S. Postal Service. I'm currently married
to the same woman for 40 years. She's a saint. My spouse
is employed by the LDS Church as a secretary for the church
education system. I have four sons. One, age 36, who is an
investment counselor. One who is 33, property management.
And I have one who is 30, is a manager of a company down in
Orem. I have one son, 26, who is a cabinetmaker and is
going to Salt Lake City Community College to get his
commercial pilot's license. None of them live at home. So
that is nice.
My highest level of education, I attended school
at Salt Lake Technical College and majored in electricity.
My hobbies and interests are any outdoor activities. I love
spending time at Bear Lake with my grandchildren. I belong
to the Disabled Veterans Association and Order of the Purple
Heart. I like to read history magazines, fiction, history
72
books and trade magazines. I was called to be a juror about
two months. It was for the county, but was not picked as a
juror. And I served in the military for two years, in the
Army, and reached the rank of E-4.
JUROR NO. 48: My name is XXXXXX XXXXXX. I live
in Levan, Utah. However, I have spent quite a bit of time
in Salt Lake. I moved to Levan to help take care of my
mother, who is now deceased. I am employed by Lowes here in
Salt Lake City. I also work at Walker's convenience store.
I do hair -- volunteer hair work for Taylorsville Senior
Citizens Center. I am currently divorced. My ex-husband is
retired from Kennecott. I had three children. I have two
living boys, both in the construction end of it, who are now
unemployed. My daughter died.
I have a high school diploma, and I continued on
to beauty school. My hobbies are crafts. I love yard work,
camping, and I love those cruises. I belong to the
following clubs or organizations. The only one I have is I
have been president of a beautification committee in Levan,
Utah. I do very little reading because I do not have the
time, but when I do, I read crafts and cookbook magazines.
I have been called for jury duty in Juab County for six
months in 2008. I went three times for jury duty. It was
settled outside the courtroom all three times. I then asked
the judge to please be dismissed because all three cases
73
were drug related, and I lost my daughter because of drugs.
I have not served in the military. And I do not know
anybody in a law firm.
JUROR NO. 49: My name is XXXXX XXXXXX. I'm juror
number 49. I have lived in Mount Pleasant, Utah for the
last ten years. I am currently employed part-time by IHC.
I'm also self-employed. I have a tree farm. I am currently
married to my sweet wife, 21 years. She is employed by
Wasatch Academy. She is an ESL teacher, English as a second
language. I have four children, ages ten to 16. I have a
bachelor's degree from Utah State University in political
economy. My hobbies are growing trees, riding motorcycles,
and studying foreign languages. I do not belong to any
clubs or organizations. I don't read a lot, at least on a
regular basis, unless it's a language book. And the answers
to 13 through 17 are also no.
JUROR NO. 50: My name is XXXXX XXXXX. I am juror
number 50. I have lived in Herriman since 2000 -- 2002. I
am currently a project manager for Garbett Homes. I am
married. My spouse stays home with the children, which I
have three girls, ages four, two and three months. I have
some college education, all general studies. My hobbies are
building, yard work, outdoor activities and hunting. I do
not belong to any clubs or organizations. I read newspapers
on occasion, both local papers. I served as a juror in
74
2000. We did reach a verdict, guilty for the defendant. It
was a domestic dispute, criminal trespass. I do not have
any immediate family that is in the legal profession. I
have not served in the military.
THE COURT: Your service on the jury, was it
generally favorable or negative?
JUROR NO. 50: Favorable.
THE COURT: Thank you.
JUROR NO. 51: My name is XXXX XXXXXXX. I am
juror number 51. I've lived in Salt Lake for -- actually, I
can't quite figure out if I'm Salt Lake or Holladay because
it's Salt Lake, but they call it Holladay. So, anyway, I've
lived in the Salt Lake area for about 42 years. I am
currently employed by Canyon School District. I am
separated from my husband. He worked for the state office
of education as the state director of transportation over
school buses throughout the state. I have five kids. Two
of them are -- two oldest children are my husband's from a
previous marriage, so I have three of my own. One is 30,
and she lives in Missouri. She's a housewife. One is 27,
and she lives in Herriman. She's a housewife. And one is
24, and she is a housewife. She lives next door to me.
My highest education is high school. My hobbies
and interests are making bread and spending time with my
grandchildren. I have a little grandson that lives next
75
door to me that will say, grandma, you forgot something,
make bread. So it's one of my favorite things to do. I
have also lately tried my hands at croqueting. I don't
belong to any clubs or organizations. I like to read
religious and self-help books. I have not served on a juror
before. And number 16, my brother-in-law is a retired
attorney. He worked in Las Vegas. Then he was the county
attorney for Emery County. He moved back to St. Louis and
he worked for McDonnell Douglas.
JUROR NO. 52: My name is XXXXXXX XXXX. I'm juror
number 52. I've lived in Ogden City since 1988, 22 months
of which I resided in St. Petersburg, Russia. I am
currently employed by Higher Quality Jewelry, but consider
myself a professional woodturner. I attend Weber State
University full-time. I am currently single. No children.
My highest level of education is some college. I have a
two-year degree. My major is bachelor's of integrated
studies. My hobbies and interests are woodturning. I enjoy
learning and translating, and anything outdoors. I belong
to the Utah Association of Woodturners, the American
Association of Woodturners, and I'm an assistant coach for
Highland Junior High in Ogden. I have not served as a
juror, but I think it would be a good experience. I've
never served in the military.
THE COURT: Thank you.
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Ladies and gentlemen, all of you, thank you very
much. Why don't you all stand up and stretch your legs,
because we're not nearly done.
If it seems warm to you in here, I want to
apologize. I don't think this courtroom has had quite this
number of bodies in here at any one time before.
All right. If we could get started, again, then,
please.
Ladies and gentlemen, I'm now going to ask you a
number of questions. In the law this is referred to as the
voir dire, which in Latin means to speak the truth. The
purpose of these questions is to first help me discern or
determine whether or not there are any of you who ought to
be excused form service on the jury because of bias or
prejudice.
Also, and equally as important, it is an
opportunity for the attorneys in this case to make educated
decisions about what are known as preemptory strikes,
meaning they have the opportunity to strike or to exclude
some of you from services on this jury for reasons they do
not have to give. All of us will be listening very
carefully to the answers you give to the questions that are
asked. I want you to remember again the oath you took at
the very beginning obligated you, by oath, to answer the
questions truthfully.
77
I mentioned to you at the outset that it is
expected that it will take three weeks, 15 trial days, for
the parties in this case to present evidence. Thereafter,
the jury will deliberate for whatever period of time it
takes for the jury to reach a unanimous verdict. Does this
present a special problem for any of you? If so, would you
please stand.
Let's begin with the lowest number juror. If you
would please give us your juror number and then explain to
the Court what your problem would be.
JUROR NO. 2: I'm juror number 2. I am a
full-time student Monday through Thursday. I start school
at noon.
THE COURT: How many classes would you miss if you
were to be done by 1:30 each day?
JUROR NO. 2: One.
THE COURT: Would you miss -- is it a five-hour
class, a three-hour class?
JUROR NO. 2: Two-hour class on Mondays and
Wednesdays.
THE COURT: Do you think you could make it up in
some other way?
JUROR NO. 2: Possibly, if I needed to. I could
talk to my teacher.
THE COURT: What is the class?
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JUROR NO. 2: Sociology.
THE COURT: All right. Thank you, Ms. XXXX.
JUROR NO. 10: I'm juror number ten. A three-week
trial would be difficult for me because it would be an
unpaid leave from work, which would roughly be somewhere
between two, and two and a half weeks of unpaid work. For
me, at the current time, would be a hardship, as well as the
fact that I have responsibilities which are tied to my
specific certification as an occupational therapist
providing services to children with disabilities in which I
have to provide evaluations which help determine services,
and there are very strict time lines in which those are
involved with. I am currently the only occupational
therapist with the company.
THE COURT: Mr. XXXXXX, you have been told you
will be done at 1:30 each day. Would you be able to make up
for that missed time in the morning if you were required to?
JUROR NO. 10: No, because I work in Washington
County, the St. George area. The distance would be not
allow me that.
THE COURT: Thank you.
Ms. XXXX.
JUROR NO. 11: Juror number 11. I am eight months
pregnant, and in three weeks I don't want to go into labor
in the courtroom. I have doctors appointments once a week.
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And I live in Ogden, so the drive itself is kind of hard.
Since I don't really fit behind the steering wheel, my
husband has to take me.
THE COURT: Thank you, Ms. XXXX.
JUROR NO. 15: Juror number 15. I work in the
school district on contract employment. I do an ESL program
in the mornings from nine to eleven where I am the only one
who does this computer program for children.
THE COURT: No one who could take your place
during this period of time, if necessary?
JUROR NO. 15: Possibly, but it's been my
responsibility. My husband is retired after a layoff, and
my unemployment would be cut.
THE COURT: You are a contract employee, meaning
you are paid by the hour, so the hours you would miss?
JUROR NO. 15: If I'm not there, I am not paid.
THE COURT: Could you do your work in the
afternoon?
JUROR NO. 15: No, not that particular part.
THE COURT: Thank you, Ms. XXXXXXXXX.
JUROR NO. 17: Juror 17. Missing three weeks of
work -- I am head of the household. It would be unpaid. As
of right now, I'm uninsured. If I could make up my work in
the afternoon, I'm not sure.
THE COURT: Are you a long haul driver, Mr. XXXXX,
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or is it local?
JUROR NO. 17: Local.
THE COURT: Is it possible that you could make it
up in the afternoon if you had to?
JUROR NO. 17: At this point in time, I'm not
sure. I could find out as soon as I talk to my employer.
THE COURT: Thank you, Mr. XXXXX.
JUROR NO. 18: I'm juror number 18. I work in the
construction industry. As everybody knows, the current
recession has hit our industry extremely hard. We're both
hanging on by the skin of our teeth. I'm a commissioned
salesman, and three weeks out of my job would be financially
devastating.
THE COURT: Again, you could not make it up in the
afternoons or evenings?
JUROR NO. 18: No. I work mainly in Utah County,
and getting from here to there to perform my job functions
would be pretty much impossible.
THE COURT: All right. Thank you.
JUROR NO. 21: XXXX XXXXXX. I'm juror 21. I am
contracted and paid hourly. So, again, if I'm not there, I
am not paid. It's not something I could make up outside of
business hours.
THE COURT: Mr. XXXXXX, again, we will be done
every afternoon. You say there if no way you could make it
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up?
JUROR NO. 21: We close at 3:30. I could make up
a little bit of it, I guess.
THE COURT: All right. Thank you.
JUROR NO. 30: I'm juror number 30. I work for a
very small lab with six people. Even now they're already
having a heart attack. I am also the sole breadwinner of
the house, and missing that much work, you know, my wife and
two kids, would be a devastated blow. Our work is on a
tight time schedule. Everything has to be out to UPS by
three o'clock, and that's about it.
THE COURT: Again, with the timetable of three
o'clock, there is no way that can be extended, there is no
way you could be -- for this trial, you could perhaps do the
work and have a later time table?
JUROR NO. 30: We're on a very, very tight
timetable. It's very strick. We have to do so many units
per hour to get our quotas every day. It's really --
THE COURT: Thank you.
Mr. XXX.
JUROR NO. 31: XXXXX XXX. I'm juror 31. I attend
class at Salt Lake City Community College from eight o'clock
to one o'clock every day, Monday through Friday. It would
be very difficult to make up those classes.
THE COURT: All right. Thank you, Mr. XXX.
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JUROR NO. 34: XXXXXXXXX XXXXX, juror 34. I am a
traveling sales rep. I have to be on the road a lot for
work. I have scheduled this week a sales meeting in
California on the 22nd.
THE COURT: Where are your trips scheduled for
this week and next?
JUROR NO. 34: I go to Moab, St. George, and then
I will be in Laguna Beach, California the 22nd.
THE COURT: There is no one that can go in your
stead or cover for you?
JUROR NO. 34: I work in an agency with three
people, and we all have a pretty full plate.
THE COURT: All right. Thank you.
MS. XXXXXX.
JUROR NO. 35: I am juror number 35. I'm
extremely busy. We're very short of help. If I was called
to be a juror for three weeks, I could probably do some
rescheduling. I do a lot of underwriting the policies and
the work has to be done very current. We can't let it sit.
These people are waiting for policies.
THE COURT: Ms. XXXXXX, if we were to ask you to
serve, would you be able to do what you need to do in the
afternoons and evenings?
JUROR NO. 35: I think I would have to get an okay
from my supervisor.
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THE COURT: But you think you could do that, if
necessary?
JUROR NO. 35: If that's what it had to be to
follow the law, yes. But I still have to get the okay from
my company.
THE COURT: All right. Thank you.
Mr. XXXXXX.
JUROR NO. 36: Yes. I am also in commission
sales. I possibly could take care of that after 1:30. My
mother was just hauled in, my sister took her into the
emergency room in St. George. I don't know how that's going
to affect her, but my sister can't take off. She's going to
e-mail me to tell me if I needed to come down or not. And I
also have a vacation planned for next week. I could
reschedule that.
THE COURT: You could reschedule, if necessary?
JUROR NO. 36: Yeah.
THE COURT: If there is nothing urgent about being
with your mother, you think you could serve?
JUROR NO. 36: I think, yeah, I could.
THE COURT: Thank you. Mr. XXXXXX, is this
something that you could check on during our first break to
ascertain?
JUROR NO. 36: If I could get to my phone, yes, I
could call my sister and see what is going on.
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THE COURT: We'll have Ms. Malley make certain you
get access to your phone.
JUROR NO. 36: Okay.
THE COURT: Thank you.
JUROR NO. 38: I'm juror number 38. I have a test
tomorrow in one of my classes, one on Thursday. They are
midterms. I have a class Tuesdays and Thursdays from 10:30
to 1:45 for the next two weeks, and then spring break would
be the following week after that. I can make up work after
hours, but I do have days that I work full days, but it's
mainly school.
THE COURT: Thank you, Mr. XXXXX.
JUROR NO. 46: I'm juror 46. My brother is
getting married on Friday morning.
THE COURT: Where?
JUROR NO. 46: In Salt Lake. I have been invited
to attend -- I'm planning on going to a conference starting
on the 17th of March until the 27th.
THE COURT: What is the conference?
JUROR NO. 46: Oxford University in England. And
I would also miss at least eight credit hours that I
couldn't make up otherwise for school.
THE COURT: Thank you, Mr. XXXXXXXXXXX.
Ladies and gentlemen, is there any member of the
jury panel who has a special disability or an impairment
85
that would make serving as a member of the jury difficult or
impossible?
Let the record reflect that no one stood.
I want to now just give you a very brief statement
about what this case is about. The reason I'm doing this is
I want you to let us know whether or not you are familiar
with the parties or the issues in this case.
This case involves a dispute between the
plaintiff, SCO, and the defendant, Novell, over the
ownership of a copyright to a computer program known as
UNIX. Plaintiff asserts that the ownership of the copyright
to UNIX transferred from Novell to a predecessor to
plaintiff in agreements made in 1995 and 1996. Defendant
asserts that the agreements did not transfer ownership of
the UNIX copyrights. Other claims and counterclaims between
the plaintiff and defendant flow out of that dispute.
Have any of you heard or read anything about this
case? If so, would you please stand.
Let's begin with Ms. XXXXXXXXX. To what extent
are you familiar with this case?
JUROR NO. 15: I read the article in the newspaper
yesterday, and didn't form an opinion, but just read the
article.
THE COURT: I think what I probably ought to do is
all of you who are standing, -- Ms. Malley, will you please
86
take their numbers -- if you will just shout out your
numbers. What I think is probably safer to do is when this
process is almost over, I'm going to ask a number of
questions that I don't want you to answer here in the
courtroom but rather will bring you back one at a time into
the jury room where in the presence of myself and counsel
will have you come in one at a time and answer the question.
I think it's going to be best if we -- instead of have you
answer anything further about what you may know about the
case now, I'm going to have you come back during that little
part of the process. So if you would just, in order, shout
out your juror number. And keep in mind, we'll have you
come back in a few minutes.
JURORS: 15, 18, 23, 26, 37, 44, 45.
THE COURT: Thank you.
I'm now going to ask counsel for the plaintiff to
stand and introduce himself and those who are sitting at the
table with him. And he is also going to read to you a list
of the witnesses that will be called by the plaintiffs in
this case. And he's going to give some identifying
characteristic, for example, where they live or who they
work for. The purpose of this is to see whether or not any
of you know these individuals that you are going to now be
introduced to and whether or not you may be personally
familiar with any of the witnesses that are going to be
87
called. So please listen very carefully. After you've had
the introductions, I'll ask you to stand if you know any of
these people.
MR. HATCH: Thank you, Your Honor.
My name is Brent Hatch with the Salt Lake law firm
of Hatch James & Dodge. At the table is Stuart Singer and
Ted Normand from the law firm Boies Schiller & Flexner.
Also at the table is Ryan Tibbetts, who is an executive with
the SCO Group, our client, the plaintiff, in this action.
And with us as well is Rick Fuentes.
THE COURT: Mr. Hatch, can you identify the law
firm with which --
MR. HATCH: I did. Boies Schiller is the law
firm.
THE COURT: Okay. Thank you.
MR. HATCH: Thank you, Your Honor.
The potential witnesses in this case include Dr.
Christine Botosan, who is a professor of accounting at the
University of Utah; William Broderick, a former employee of
Novell, employee of SCO, who is, I believe, in New Jersey;
Thomas Cargill, a software consultant in Boulder, Colorado;
Ted Chatlos, a former Novell executive in New Jersey;
Gervaise Davis, a lawyer in Monterey, California, and he's a
law professor at Santa Clara University law school; Robert
Frankenberg, a former CEO of Novell, who I believe lives in
88
Utah; Lee Johnson, a citizen of Utah; John Maciaszek, a
former employee of Novell and a current employee of SCO; Ty
Mattingly, a former Novell executive living in Utah County;
Darl McBride, a former CEO of SCO who lives in Salt Lake
City; Jack Messman, a former CEO of Novell who lives in
Massachusetts; Doug Michels, a founder and executive of
Santa Cruz Operation in Santa Cruz, California; Gary Pisano,
a professor of business administration at the Harvard
business school; Chris Sontag, former senior vice president
of SCO who lives in Salt Lake City, Utah; Duff Thompson, a
former senior vice president of Novell and former board
member of SCO, and lives in Utah County; Ryan Tibbitts, who
you've met, was an executive at SCO, lives here in Utah;
Ralph Yarro, a former chairman of SCO who lives in Orem,
Utah; Larry Gasparro, a former executive of SCO, and I'm not
sure where he is now, but he's back east somewhere; Burt
Levine, a former lawyer at Novell, who I believe is in New
Jersey; Alok Mohan, a former CEO of Santa Cruz Operation in
Santa Cruz, California; Maureen O'Gara, a news reporter in
the technology industry, who lives, I believe, in Long
Island, New York; Gregory Petite, a former executive of SCO,
who is in Massachusetts; Stephen Sabbath, former general
counsel of Santa Cruz Operation, in California; Christopher
Stone, a senior vice president at Novell, and I'm not sure
where he is now; Jean Acheson, a former employee of SCO in
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Salt Lake City; Gregory Jones, a Novell employee, I believe
lives in Utah County; Paul Moxley, who is a Salt Lake City
attorney; Kim Madsen, a former director of corporate affairs
for Santa Cruz Operation, in California; Joseph LaSala, a
former employee of Novell, who I believe lives in the
D.C. -- Washington, D.C. area; Phillip Langer, a former
sales executive of SCO, in Illinois; Andrew Nagle, a senior
director of product development, in Connecticut; Michael
Olsen, a former executive at SCO who is in Utah County; and,
Jim Wilt, a former executive of Santa Cruz Operation, who I
believe is in Switzerland.
MR. HATCH: Thank you, Your Honor.
THE COURT: Thank you, Mr. Hatch.
Ladies and gentlemen, do any of you know Mr. Hatch
or any of the other attorneys that were introduced to you or
are you familiar with their law firms, or do any of you
recognize any of the witnesses that will be called as just
identified by Mr. Hatch? If so, would you please stand.
Ms. XXXXXXXX.
JUROR NO. 22: Yes. Do you want me to explain?
THE COURT: Yes.
JUROR NO. 22: Ryan Tibbitts, we were neighbors
ten years ago in Jeremy Ranch.
THE COURT: All right. Were you friends?
JUROR NO. 22: We were in the same ward, but on
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opposite ends of Jeremy Ranch.
THE COURT: Would that relationship from ten years
ago affect your ability to be a totally fair and impartial
juror in this case?
JUROR NO. 22: No.
THE COURT: Are you confident of that?
JUROR NO. 22: Yes.
THE COURT: All right. Thank you, Ms. XXXXXXXX.
Mr. Brennan, would you please make the same
introductions.
MR. BRENNAN: Thank you, Your Honor.
Good morning, ladies and gentlemen. My name is
Sterling Brennan. I practice law here in Salt Lake City
with the law firm of Workman Nydegger. I am joined at
counsel table by two of my colleagues, Michael Jacobs and
Eric Acker. Mr. Jacobs and Mr. Acker practice with the law
firm of Morrison & Foerster. I also have with me at counsel
table Mr. Dana Russell. Mr. Russell is the senior vice
president and the chief financial officer of our firm's
client, Novell, Inc. Mr. Russell is from Morgan, Utah, and
attended, as an undergraduate student and a master's
student, Weber State University. He now resides in the east
coast.
In terms of witnesses that Novell expects to call
at trial: Mr. Greg Jones, who is a Novell in-house
91
attorney, and he resides in Utah County; Mr. Jack Messman,
who is the former chief executive officer of Novell, and he
resides in California; Mr. Joe LaSala, who is the former
general counsel of Novell, and he resides on the east coast
in the Massachusetts area; Mr. Chris Stone, who is a former
senior Novell executive, and Mr. Stone presently resides in
Summit County; Mr. Tor Braham, who is a former attorney with
the law firm of Wilson Sonsini Goodrich & Rosati in Palo
Alto, California; Mr. Jim Tolman, who is the former Novell
chief financial officer, and he resides in the San Jose,
California area; Mr. David Bradford, who is also a former
Novell general counsel, and he resides here in Salt Lake
City; Ms. Allison Amadia, who is a former Novell attorney,
and she resides in the San Francisco Bay Area; Mr. Aaron
Alder, who is an attorney with the law firm of Wilson
Sonsini Goodrich & Rosati, and he resides in the Bay Area in
California; and then Mr. Terry Musika, who is a practicing
accountant, and he lives on the east coast.
In addition, Mr. Michael DeFazio, who is a former
Novell executive; Mr. Samuel Greenblatt, who is an executive
at CA, Inc.; Mr. Scott Handy, who is an executive with IBM;
and Michael Danaher, who also is an attorney with the law
firm of Wilson Sonsini Goodrich & Rosati, also in the San
Francisco Bay Area.
Thank you, Your Honor.
92
THE COURT: Thank you, Mr. Brennan.
Ladies and gentlemen, do any of you know Mr.
Brennan, are you familiar with his law firm, or any of those
individuals that you were introduced to at the table, or do
any of you recognize the names of any of the witnesses that
Mr. Brennan indicated that he would call?
Ms. XXXXXXXXX.
JUROR NO. 15: Juror number 15. I'm long time
friends with Rick and Denise Nydegger. We're not close now,
but we were years ago.
THE COURT: You have known Mr. Nydegger for a long
time?
JUROR NO. 15: Yes.
THE COURT: You are not close now, but you had a
long friendship. Do you think that would interfere with
your ability to be a fair and totally impartial juror?
JUROR NO. 15: No.
THE COURT: Are you confident of that?
JUROR NO. 15: Yes.
THE COURT: Yes, sir.
JUROR NO. 40: XXX XXXXXX, juror number 40. I'm
an acquaintance of Mr. Russell. I've done several real
estate tractions with him in the past.
THE COURT: Would that relationship affect your
ability to be a totally fair and impartial juror in this
93
case?
JUROR NO. 40: I don't believe so.
THE COURT: Are you confident of that, Mr. XXXXXX?
JUROR NO. 40: Yes.
THE COURT: All right. Thank you.
Ladies and gentlemen, do any of you recognize any
other potential juror as a former friend, roommate, any
other relationship with anyone else on the jury panel?
Do any of you personally know me, Judge Ted
Stewart, or any member of your immediate family know me?
JUROR NO. 44: Do you want me to go first?
THE COURT: Mr. XXXXXX, if you would go, please.
JUROR NO. 40: I served on the Morgan County
republican chair several years ago when you were running for
governor against Mike Leavitt and others.
THE COURT: Well, that answers my question because
I didn't run for governor. I ran for senate, but it was
that same year. There were so many of us, I don't blame you
at all for not being able to keep track. Other than that,
in 1992, let me ask you this, would that former association
interfere with your ability to be a totally fair and
impartial juror or is there anything else about that
association that would interfere with your ability to be a
juror in this case?
JUROR NO. 40: No, sir.
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THE COURT: Thank you, Mr. XXXXXX.
Ms. XXXXX.
JUROR NO. 44: Juror 44. My brother-in-law,
[redacted], is a lawyer, so I just asked him, I'm going
in for juror duty, do you know anything about this. He just
said he knew of you.
THE COURT: Is he from Kaysville?
JUROR NO. 44: His law -- one of the people who
works with him, his good friend. Does that make sense?
THE COURT: I do know some [redacted] from Kaysville.
JUROR NO. 44: No. He lives in Lehi now.
THE COURT: All right. Thank you.
Ladies and gentlemen, other than a divorce, have
any of you or a member of your immediate family ever
participated in a lawsuit either as a party, a witness, or
in any other capacity? Again, other than a divorce, have
you or a member of your immediate family ever participated
in a lawsuit either as a party, a witness, or in any other
capacity? If so, would you please stand.
Ms. XXXX, would you tell us what.
JUROR NO. 2: I was attacked by a dog when I was
eight years old, and we sued and won.
THE COURT: You were quite young?
JUROR NO. 2: Yeah.
THE COURT: Was there anything about that
95
experience that would interfere with your ability to be a
juror in this case?
JUROR NO. 2: No.
THE COURT: Did you feel as if the judicial system
worked for you in that case?
JUROR NO. 2: Yes.
THE COURT: Any strong feelings out of that that
would affect your ability to be a juror here?
JUROR NO. 2: No.
THE COURT: All right. Thank you, Ms. XXXX.
Okay.
JUROR NO. 13: Juror 13. I don't know if you want
to know about this, but bankruptcy court.
THE COURT: Yourself?
JUROR NO. 13: Right.
THE COURT: Currently or recently?
JUROR NO. 13: Uh-huh, and it was just discharged.
THE COURT: Is there anything about that
experience that would interfere with your ability to be a
juror in this case?
JUROR NO. 13: No.
THE COURT: Do you feel as if the judicial system
worked for you in that case?
JUROR NO. 13: I do.
THE COURT: All right. Thank you.
96
Mr. XXXXXXX.
JUROR NO. 14: My father had a small claims, civil
dispute I suppose.
THE COURT: Anything out of that experience that
would interfere with your ability to be a juror in this
case?
JUROR NO. 14: Not at all.
THE COURT: Thank you.
Mr. XXXXXX.
JUROR NO. 16: Five years back my brother was --
almost six years -- in the federal system. He was arrested.
The charges were disruption of interstate commerce.
THE COURT: Anything about that experience that
would interfere with your ability to be a juror in this
case?
JUROR NO. 16: No.
THE COURT: Do you feel like he was treated fairly
by the system?
JUROR NO. 16: I guess, yeah. I mean --
THE COURT: I would not take that as an
overwhelming endorsement. But, again, the question is
whether or not that criminal matter would affect your
ability to be a juror in this civil case?
JUROR NO. 16: No.
THE COURT: Thank you.
97
JUROR NO. 17: XXXXX XXXXX, juror 17. It was a
bankruptcy.
THE COURT: Just recently?
JUROR NO. 17: Four years ago.
THE COURT: Mr. XXXXX, did you feel as if the
system worked appropriately for you?
JUROR NO. 17: Yes, sir.
THE COURT: Was there anything about that
experience that would interfere with your ability to be a
juror in this case?
JUROR NO. 17: No.
THE COURT: All right. Thank you.
JUROR NO. 25: XXXXXXX XXXXX, juror number 25. I,
too, had a small claims court about 25, 27 years ago.
THE COURT: Anything about that experience that
would interfere with your ability to be a juror here?
JUROR NO. 25: No, Your Honor.
THE COURT: Thank you, Mr. XXXXX.
JUROR NO. 36: Juror number 36. My daughter was a
party to a lawsuit for some mortgage -- I don't remember
what it was. Also, I left a company along with some
co-workers. We were sued by the company, our former
employer. It was settled out of court. And neither one of
those would make a difference to me one way or the other.
THE COURT: You don't feel as if the judicial
98
system is operated ineffectively or prejudicially in either
of those instances?
JUROR NO. 36: No.
THE COURT: Thank you, Mr. XXXXXX.
Ms. XXXXXXX.
JUROR NO. 37: My husband was involved in a
lawsuit with a division of Dunford Bakery, the distributor
in California.
THE COURT: How did the lawsuit turn out?
JUROR NO. 37: We lost.
THE COURT: Do you feel as if the system worked or
did not work in that instance?
JUROR NO. 37: I honestly couldn't say I know.
THE COURT: Is there anything about that
experience that would interfere with your ability to be a
juror in this case?
JUROR NO. 37: I don't think so, no.
THE COURT: Thank you, Ms. XXXXXXX.
JUROR NO. 41: I am XXXXXX XXXXXXXX, juror 41. I
am currently involved in four court proceedings. Let's see,
there is a probate matter that is being contested at the
moment as well as I have been set up as a defendant against
Capital One. And that's currently going forward. There is
a bankruptcy case currently filed with this court. It was
filed just last week. And then there is also an issue
99
concerning a life insurance policy that's also filed in this
court.
THE COURT: Mr. XXXXXXXX, some of those
experiences are current, but, collectively, is there
anything about those experiences that you have had with the
judicial system that would interfere with your ability to be
a totally fair and impartial juror here?
JUROR NO. 41: Well, I don't view the system as
too fair for me, but I just don't know.
THE COURT: All right. Thank you.
Ms. XXXXX.
JUROR NO. 42: I am juror 42, and I sued for
damages on a rental property about 20 years ago.
THE COURT: Anything about that experience that
has lingered and do you have any feelings about it or the
judicial system or your treatment by the judicial system
that would interfere with your ability to be a juror here?
JUROR NO. 42: No, nothing would interfere.
THE COURT: Thank you.
Ms. XXXXXXXX.
JUROR NO. 43: I'm juror number 43, and my mother
was involved in a federal case where she was found guilty
and served two years in federal prison.
THE COURT: Do you feel she was treated fairly?
JUROR NO. 43: Yes.
100
THE COURT: Anything about that experience that
would interfere what your ability to be a juror in this
civil case?
JUROR NO. 43: No.
THE COURT: All right. Thank you, Ms. XXXXXXXX.
Ms. XXXXX.
JUROR NO. 44: Juror number 44. My husband's
family was involved in something when he was younger. I
don't really know a lot about it, but I think everything
went, you know, according to justice and everything.
THE COURT: No feelings from that experience?
JUROR NO. 44: No.
THE COURT: Thank you.
JUROR NO. 47: I am juror number 47, XXXXX XXXX.
I was charged approximately three years ago in the Sandy
City court with withholding evidence. I pleaded no contest
and was given six months probation.
THE COURT: Anything about that experience,
Mr. XXXX, that would interfere with your ability to be a
juror in a civil case?
JUROR NO. 47: No. It was my fault. I didn't
know the law.
THE COURT: All right. Thank you.
Ms. XXXXXX.
JUROR NO. 48: Juror number 48. Two years ago I
101
was involved in a car accident where a semi rear-ended me
and totaled my car and put me in intensive care for a couple
of days. They settled with me out of court.
THE COURT: Anything about that experience that
would interfere with your ability to be a juror in this
case?
JUROR NO. 48: No. They settled profitable.
THE COURT: So you were happy with the outcome?
JUROR NO. 48: I was.
THE COURT: Ladies and gentlemen, I have indicated
to you that, as jurors, it will be your responsibility in
this case to be the finder of the facts, but it will be my
responsibility to determine and communicate to you what the
law is and what evidence will be admissible for you to hear.
Do any of you have a problem with that division of labor?
If so, would you please stand.
Let the record reflect that no one stood.
Ladies and gentlemen, unless you have already
disclosed it, have you or a member of your immediate family
ever been employed by a computer company or a computer
software developer? Some of you have indicated it during
the course of your introduction, but this is for those of
you who did not previously disclose it.
JUROR NO. 4: I'm XXXXX XXXX, juror number four.
I have worked for 25 years for a health care software
102
developing company. It's been owned by many different
companies, but it's currently Siemens Medical out of
Malvern, Pennsylvania.
THE COURT: Thank you.
JUROR NO. 7: I'm juror number seven. My partner
works for ITT. I don't know exactly what type of software
they make, but she does do something with it. My mom works
at Fairchild. They also work on it. I don't know exactly
what it is that she does, but she works on some type of
motherboard, or something like that. Both of their
companies, whenever they work on it, it is completely
confidential, so they don't talk about it much.
THE COURT: Does your mother work in computer in
the manufacturing?
JUROR NO. 7: She does -- she makes the
motherboards. She burns the software onto it. I don't
know, something like that.
THE COURT: Thank you.
Let's back up to juror number three.
JUROR NO. 3: XXXXXX XXXXX. Was I employed by
them? No. However, there was a company, I think on the
east coast, Technologist, they work with library systems.
And I'm trying to think who the owner of it is because it
could be a different system. We beta tested their software
for the library systems. It was a circuit. They were the
103
beta testing company for the nation. We were directly with
that company for about three months to get it up and
running. Now it's used broadly in our library system as
well.
THE COURT: Thank, Ms. XXXXX.
JUROR NO. 14: Juror number 14. I've worked in
the past for software development companies. Park City
Group. It's a point of sale software, retail point of sale
software. Nebo International, we were actually partnered
with Microsoft in end-user training certification of
software. And for the most recent was one arm of Sun Garden
International -- or Sun Garden Investment Systems. It was a
personal finance retirement planning software.
THE COURT: Thank you, Mr. XXXXXXX.
Ms. XXXXXXXXX.
JUROR NO. 15: Yes. As I've explained, my sister
is employed as a paralegal. She does trademark
infringement. For the company she works for, she's worked
in the past with Claris and Sun Microsystems. I felt I
needed to clarify.
THE COURT: Thank you. That's helpful.
JUROR NO. 21: Juror 21. I used to work at Micron
Technology, and also a company that was merged with Intel
starting the manufacturing of the IT group.
THE COURT: In the IT group?
104
JUROR NO. 21: I'm no longer employed with them.
THE COURT: Thank you.
JUROR NO. 22: Juror 22. My husband was worldwide
creative director for Intel Corporation and a number of
other corporations in Silicon Valley.
THE COURT: Primarily dealing with Web?
Primarily dealing with Web designs?
JUROR NO. 22: Yes.
THE COURT: Software related to the Web?
JUROR NO. 22: Yes. And for Intel, it was the
pentium processor. He did the marketing for that.
THE COURT: All right. Was he always on the
marketing side?
JUROR NO. 22: Uh-huh. (Affirmative)
THE COURT: Thank you.
JUROR NO. 26: I'm XXXXXXXXX XXXXXXX. I'm juror
number 26. We opened the first small computer -- personal
computer store in Canada in 1975. We owned that store for a
few years before we moved back here to Utah. My husband and
my sons have always been very involved in computers. My
youngest son now works for a software developer. I am not
aware of any of them ever having particularly worked with
Novell or UNIX.
THE COURT: All right. Thank you.
JUROR NO. 27: I am juror number 27. Both of my
105
parents are electrical engineers. My dad worked a lot with
modems and different things. My mom, more like airplane
simulators. I have an uncle who is in the video game design
with Microsoft.
THE COURT: Thank you.
JUROR NO. 21: Juror number 21. My uncle and
brother-in-law were both former employees of Novell.
THE COURT: Of Novell?
JUROR NO. 21: Yes.
THE COURT: How long ago were they employed there?
JUROR NO. 21: One was employed for over 15 years,
my uncle. And my brother-in-law, probably about five or six
years.
THE COURT: Is there anything about that
relationship between them and Novell that would interfere
with your ability to be a totally fair and impartial juror
here?
JUROR NO. 21: Not that I'm aware of.
THE COURT: Did they leave under circumstances
that left them unhappy?
JUROR NO. 21: Yes.
THE COURT: All right. Thank you.
JUROR NO. 44: Juror 44. My husband, when he was
working on an undergraduate degree, did an internship at
Novell. He did his degree in finance. So he worked kind of
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in the collections department, not with any of the software,
but he did work at Novell. And he quit because working and
going to school was a lot of work. I talked him into
quitting.
THE COURT: Was there anything about that
relationship or his leaving that would interfere with your
ability to be a fair and impartial juror here?
JUROR NO. 44: No.
THE COURT: You're confident of that, Ms. XXXXX?
JUROR NO. 44: Yes.
THE COURT: Thank you.
JUROR NO. 45: Juror number 45. My brother had
his own computer company. He set up all the Internet for
the Olympics here in 2002. Also I've got a nephew that
works for a computer company in Orem.
THE COURT: Thank you.
Ladies and gentlemen, do any of you have strong
feelings, whether they be positive or negative, about large
computer companies, such as IBM, Microsoft, Novell or Sun?
If so, would you please stand.
Let the record reflect that no one stood.
Ladies and gentlemen, do any of you know what
Linux is, L-i-n-u-x? If so, would you please stand.
Would you briefly give your jury number and tell
us how you know what it is, what it is that generated your
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familiarity with it.
JUROR NO. 3: Juror number three, XXXXXX XXXXX. I
have not worked with the system. It is an open-coded system
that's an operating system. There are, I know, some basic
setups so those users that aren't programmers can use it. A
lot of my friends have actually started using the Linux
software instead of Windows. I have very little contact
with it myself.
THE COURT: Thank you.
JUROR NO. 4: Juror number four. Some of the
platforms that my employer uses are based on Linux operating
systems. We interface with it, but we do not use it
directly in my specific business unit.
THE COURT: Mr. XXXXXXX.
JUROR NO. 14: Juror number 14. My familiarity is
somewhat in passing. Working in marketing communications
with Web development companies, I work closely with ITs, so
I do understand some basic differences between Windows and
Linux as it relates to Web development.
THE COURT: Thank you.
JUROR NO. 16: XXXX XXXXXX, number 16. In 2001, I
built a new computer and used Linux.
THE COURT: Thank you.
JUROR NO. 20: Juror number 20. I know what I've
read in computer enthusiasts publications. I tried building
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a computer based on Linux. It didn't work very well, so I
went back to Windows.
THE COURT: Thank you.
JUROR NO. 21: Juror 21, I have done some pearl
scripting in Linux.
THE COURT: You've done some what?
JUROR NO. 21: Pearl scripting. It's a program
language primarily on Linux.
JUROR NO. 26: Juror number 26. I personally do
not know a lot about Linux, but by husband and my sons do.
We have approximately ten to 15 computers in our home, half
of which are Linux based and half of which are Windows
based, or others. I look at my book shelves and I see
Linux, Linux, Linux.
THE COURT: Thank you.
JUROR NO. 27: Juror number 27. Both of my
parents use Linux a lot, but they are working engineers.
THE COURT: You don't have any personal
familiarity with it, though?
No.
JUROR NO. 28: Juror number 28. I have used
multiple Linux programs in my field. I haven't currently
used them for probably the past five or six years.
THE COURT: All right. Thank you.
JUROR NO. 41: Juror 41. I have both used and
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built software for Linux distributions over the past 15
years.
THE COURT: Thank you.
JUROR NO. 44: Juror 44. I've heard of it in
passing. Just that it's another option besides Windows. I
thought it was a free operating system.
THE COURT: Thank you.
JUROR NO. 46: Juror 46. I haven't personally
used it, but I have a lot of friends who are big fans of
Linux.
THE COURT: Thank you.
Ladies and gentlemen, have any of you ever used a
computer operating system known as UNIX?
Mr. XXXXXX.
JUROR NO. 21: Yes. When I worked with Micron,
again, goes back to pearl scripting.
THE COURT: Mr. XXXXXX, anything about that
experience with UNIX that would interfere or affect your
ability to be a totally fair and impartial juror in this
case?
JUROR NO. 21: No, Your Honor.
THE COURT: Thank you.
JUROR NO. 26: Juror number 26. I can't honestly
say yes or no to that question because my husband and my
sons are so into all the different --
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THE COURT: Again, this is for you personally,
whether or not you personally have.
JUROR NO. 26: Personally, no.
THE COURT: Ladies and gentlemen, this question
may have been asked in a different way at the very
beginning, but let me ask it again, have any of you seen,
read or heard anything about disputes related to the
software operating system UNIX? If so, would you please
stand.
Some of you.
Let me ask you this, is there anyone who did not
stand when I had your numbers taken before?
All right. Thank you.
Unless you have already disclosed it, is there
anyone else in the jury panel who either personally or a
member of your immediate family worked for companies that
licenses intellectual property or software?
Again, if you've already disclosed it once, you
don't need to again.
Let the record reflect that no one stood.
Ladies and gentlemen, do any of you or a member of
your immediate family own stock in SCO or Novell? If so,
would you please stand.
Let the record reflect that no one stood.
Ladies and gentlemen, I'm now going to ask those
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questions that I previously indicated would be asked but I
do not want you to answer here in the courtroom now. Again,
after all of them have been asked, we'll then have you
stand, we'll take your juror number, and we'll have you come
back one at a time into the jury room to answer the
questions with just myself and necessary court personnel and
counsel for the parties.
If you serve as a juror in this case and the jury
finds in favor of either the plaintiff or the defendant and
the plaintiff or defendant has suffered damages, would any
of you have difficulty awarding the full measure of those
damages?
Again, you have had a description of this case
given to you and you have been introduced to the parties and
counsel and witnesses for the parties. I'll ask you again,
if any of you have heard or read anything about this case?
Is there anything about the specific claims made
by the parties in this case that would make it difficult or
impossible for you to serve as a juror and render an
impartial honest verdict?
Is there any reason why you could not give the
plaintiff or the defendant a fair trial?
Finally, there are those of you who are thinking
of a matter relating to your ability to sit on this jury for
a reason that I perhaps have not specifically asked you
112
about. Please consider this question, is there any other
reason that you know of that would affect your ability to
sit on this jury and render a fair and impartial verdict for
either the plaintiff or the defendant?
If you would please be thinking about those
questions for a moment, I'm going to ask for a brief
side-bar with counsel.
(Side-bar conference held off the record.)
THE COURT: Unless you think your hearing has been
affected, let me explain that that is a system whereby we
are allowed to talk without you hearing us. It generally
has worked very well, but I do have to make certain, did any
of you hear any of the conversation that we were having?
I want you to know that's a considerable
investment by you as taxpayers of the United States. In
that limited respect, it was worthwhile, okay.
I have another question I would like to ask.
Ladies and gentlemen, do any of you or members of your
immediate family, to your knowledge, have investments in
IBM, Sun Systems, Novell or Microsoft? If so, would you
please stand.
Ms. XXXXX. I don't want you to disclose too much
personal information.
JUROR NO. 3: I know at one point my father, who
is now deceased, had some stock with Microsoft. I am
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unaware if it was ever sold, if my mother still has it, or
what has even happened to this stock. I wouldn't be
surprised if it was sold upon my father dying.
THE COURT: All right. Thank you.
JUROR NO. 4: Juror number four. One of my
siblings owns stock in IBM as well as myself.
THE COURT: You own stock in IBM?
JUROR NO. 4: I do own stock in IBM.
THE COURT: A considerable amount, small amount?
JUROR NO. 4: A couple hundred shares.
THE COURT: Thank you.
JUROR NO. 11: Juror number 11. My grandparents
own a considerable amount in IBM.
THE COURT: Your grandparents?
JUROR NO. 11: Yeah.
My sister owns stock in Sun and IBM. And my
family trust has stock in IBM.
THE COURT: A large amount, small amount?
I don't know her amount. My family trust is not a
large amount.
THE COURT: Thank you, ladies and gentlemen.
Now if I may have all of those who feel that you
need to answer the questions that I asked, that I indicated
I would like you to come back into the jury room one at a
time, would you please stand so we can take your numbers.
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Again, all those who previously indicated that you were
familiar with the case or read something or heard something
or had seen something about the case, I would like you to
stand again so we can make certain we have your numbers. Is
there anyone else who feels as if they need to come in and
answer the questions that I just asked you?
Do you have them all, Sandy?
Let's just go through them, if you would, please,
quickly, beginning with you, Ms. XXXXXXXXX. Give us your
numbers.
JURORS: 15, 18, 23, 26, 37, 44, 45.
THE COURT: All right. Thank you.
Ladies and gentlemen, while this happens, we're
going to take a recess. I'm sure that some of you are
probably grateful for that. Let me just give you some
instructions during the course of this. This is really
quite important. Number one, I do not want you to discuss
this case with anyone. I don't want you to visit and
surmise or call anybody or anything at all. No discussion
about this case.
Secondly, if in the course of this break you are
to run into someone you see sitting at these tables in the
hallway or restroom, do not say hi to them, do not
acknowledge them, don't high-five them, don't do anything.
I do not want any kind of interaction taking place between
115
you and them and they are, in turn, instructed not to have
any with you. If you pass them in the hall and they don't
acknowledge you, please do not be offended. Don't think
they are not friendly. They are simply doing what the Court
has asked them to do.
I think this will probably take 45 minutes. So
I'm going to ask all of you to be back in your seats at
12:00 o'clock. There are restrooms in the hallway. There
is a break room of sorts with a very limited supply of
anything downstairs. But those of you who stood up, if you
would please stay in the courtroom until you have been
brought back into the jury room. The rest of you may take a
40-minute recess. Thanks.
(Recess)
(Whereupon, the following proceedings were held in
the jury room.)
THE COURT: My intention is to dismiss for cause
number 15. We'll not have her come back.
THE CLERK: XXXXXXX, number 18.
THE COURT: Any objection to Mr. XXXXXXX being
dismissed for cause?
MR. BRENNAN: I'm not quick enough.
THE COURT: Employment.
15 and 18 we'll not bring back.
THE CLERK: Twenty-three?
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THE COURT: Bring back.
THE CLERK: Number 26?
THE COURT: Bring back.
THE CLERK: Thirty-seven?
THE COURT: Bring back.
THE CLERK: Forty-four and 45?
THE COURT: Bring them both back. I just needed
to take care of those two, counsel.
You understand they will come in and sit down.
We'll ask them questions. I'll give each of you an
opportunity to ask questions as well, just one of you per
side. So who will that be?
Mr. Hatch, Mr. Brennan.
THE CLERK: Mr. XXXXXXXX, juror 23.
THE COURT: Mr. XXXXXXXX, tell me what it was you
found yourself answering yes to in that list of questions,
would you please.
JUROR NO. 23: The question you asked about what
have you read about this case. I just went on line
yesterday to see what type of case I would be coming to
today. I just looked at your calendar. Then I just Goggled
SCO vs. Novell, and read a little bit. Read probably 15, 20
minutes about what has happened in the case for the last --
started in '95 possibly, so --
THE COURT: Mr. XXXXXXXX, did you come out of that
117
examination with an opinion as to how this case ought to be
decided?
JUROR NO. 23: No.
THE COURT: Did you understand everything that you
were reading?
JUROR NO. 23: For the most part. There were some
legal terms in there that I didn't recognize or come across
previously, but it was more or less kind of a brief synopsis
of what was going on pertaining to two companies, so not in
great detail.
THE COURT: Mr. XXXXXXXX, I'm sure you can
understand that it is very important that I do everything I
can to make certain that no juror is serving on this jury
who already has a preconceived notion about this case and
how it ought to turn out, to make certain they don't have a
view, well, you know, that company should not have done this
or that company should not have done that, whatever the case
may be. Do you have any of those notions as you sit here
today?
JUROR NO. 23: I don't. Like I say, it was just
kind of a brief background. I didn't get into the details.
I would say what we went into today I learned just as much
about Linux and UNIX and Novell and SCO. I mean, it went
into a little bit about a settlement of $25 million -- $2.5
million. Partially reversed. That's why we're here to hear
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more about that. I think that settlement was for Novell, I
believe. And now it's been partially reversed, I think.
Like I say, it was -- that's about all I know.
THE COURT: Was there anything else in any of
those questions I asked you that you felt you need to answer
here in the jury room?
JUROR NO. 23: No.
THE COURT: Do you have any questions, Mr. Hatch?
MR. HATCH: Mr. XXXXXXXX, you indicated that you
did a Google search for SCO and Novell, correct?
JUROR NO. 23: Yeah.
MR. HATCH: Other than the Wikipedia sites?
JUROR NO. 23: The next link was legal, I think.
I didn't read anything. I just kind of went to that site
and just -- I think it was a summary of the previous court
case. Other than that, I didn't read anything in the
newspaper article that was out, but I assume most of what
was in the newspaper is similar to what I read in Wikipedia.
MR. HATCH: You did say you read the Daily Herald
and Deseret News. Have you ever read anything in the Daily
Herald?
JUROR NO. 23: I haven't, no.
MR. HATCH: Based on what you saw in the Wikipedia
article, did you view the Wikipedia article as either pro or
con for either of the parties?
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JUROR NO. 23: It seemed really fair. It didn't
seem -- just a real brief synopsis of what went on since, I
believe, '95. Fair to either side.
MR. HATCH: You indicated you felt you could be
fair. The article didn't cause you to lean one way or the
other?
JUROR NO. 23: No.
THE COURT: Mr. Brennan, anything?
MR. BRENNAN: No. Thank you.
MR. HATCH: Did you discuss anything you saw with
anyone else?
JUROR NO. 23: My wife, but she and I both haven't
had any dealings with Novell or SCO. She thought maybe it
was more of a glamorous trial that I was going to, what
trial are you going to.
MR. HATCH: You saw the --
JUROR NO. 23: I looked at the calendar real quick
and realized it was a trial I knew nothing about. I decided
to read a little bit, which I actually thought, as I was
doing that, I probably shouldn't be doing this.
THE COURT: You have good instincts, Mr. XXXXXXXX.
Follow them in the future.
Anything else?
MR. HATCH: That's it, Your Honor.
MR. BRENNAN: No. Thank you, Your Honor.
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THE COURT: Thank you, Mr. XXXXXXXX. You may go
back to the courtroom. You can take your recess until noon,
okay.
THE CLERK: Ms. XXXXXXX, number 26.
THE COURT: Take a seat, please, Ms. XXXXXXX.
JUROR NO. 26: Thank you.
THE COURT: Ms. XXXXXXX, what was it you felt you
needed to reveal to us here?
JUROR NO. 26: You asked if we heard of a pending
case. Of course I've heard my husband and my sons talk a
little about the fact there is a dispute between Novell and
UNIX, and I have heard talk. I haven't formed a judgment
one way or the other, but I have heard them speaking about
it.
THE COURT: So the only exposure you have had to
this case is hearing your husband and your son talking about
it?
JUROR NO. 26: My sons.
THE COURT: Did either of them express a strong
viewpoint about the merits of the case, who ought to win or
anything of that sort?
No.
THE COURT: It was just a discussion that the case
was taking place?
JUROR NO. 26: Uh-huh. (Affirmative). They have
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discussed it back and forth, you know.
THE COURT: What kind of things have they said?
JUROR NO. 26: I don't really remember because I
take care of the bookkeeping end of the business and I let
them worry about all the other stuff. There is one other
thing, though, we do have a small part-time business of
sorts where we do subscribe to Microsoft Partnership --
Microsoft Partners -- is that what it's called?
THE COURT: All right. Ms. XXXXXXX, I hope you
can understand, it's very important no juror sit on this
case who is going to have a bias or a prejudice or any type
of preconceived notion about how the case ought to turn out.
As you sit here right now, can you tell me do you have a
bias or prejudice, do you have a notion about how you think
this case should end up?
JUROR NO. 26: No, I don't. I do know I have to
be very, very careful not to tell my husband and sons don't
discuss it ever when I'm around, because as they read in the
papers, they likely would, but I would -- I personally would
not have any bias or any preconceived notions or anything.
THE COURT: All right. Thank you.
Any questions?
MR. HATCH: Have you done any reading on line
yourself?
JUROR NO. 26: No.
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MR. HATCH: Do you have any opinion about Linux?
JUROR NO. 26: No. I just use whatever operating
system my husband puts on for me, that's what I use.
THE COURT: Anything?
MR. BRENNAN: No questions. Thank you, Your
Honor.
THE COURT: Thank you, Ms. XXXXXXX.
JUROR NO. 26: Thank you.
THE CLERK: Juror 37, Ms. XXXXXXX.
THE COURT: You indicated that you had read or
seen or heard something about the case; is that right?
JUROR NO. 37: Yes, just a small bit.
THE COURT: Tell us what it was.
JUROR NO. 37: Just the article about the suit
coming up between the two. I since have recognized I think
I am a neighbor to one of the plaintiffs.
THE COURT: That would be?
JUROR NO. 37: I think their last name is
McBride. They live in Oak Lane.
MR. HATCH: Where do they live?
JUROR NO. 37: Oak Lane.
MR. HATCH: Yeah.
THE COURT: Neighbors to them?
JUROR NO. 37: Yes. So in homeowners meetings, I have met them. And then the last homeowners meeting, after
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they -- it was just the wife left, people in the group were talking about the lawsuit coming up, and their house had been for sale, she was talking about the concern there.
THE COURT: I'm glad you remembered that. As you
sit here, do you have a notion about how this case ought to
turn out based on what you have read or on that discussion,
or the fact that you have a neighbor who would be involved
in this matter?
JUROR NO. 37: No, just it may be awkward.
THE COURT: Awkward. Okay.
Any questions?
MR. HATCH: The neighbor you know that's out there
with SCO, would you recognize him or his wife now?
JUROR NO. 37: I recognized his wife in the
courtroom today, yes.
THE COURT: That's what jogged your memory?
JUROR NO. 37: Yes. I thought as they were
talking about -- because I know -- I followed it a little
bit in the paper, so I knew that neighbor was a SCO officer.
So I thought possibly it would be. But because they have
small children, mine are grown, I wasn't real acquainted
with that guy other than homeowners meetings.
MR. HATCH: When you have talked with some of the
other neighbors about the house was for sale, there was a
lawsuit, did you connect the two somehow? Did you connect
124
the house being for sale and the lawsuit?
JUROR NO. 37: Yes, I did. Yes, I did.
MR. HATCH: In what way?
JUROR NO. 37: Just knowing things get tough, you
may start shutting down income and have to put your house
up. That was the intimation that was made among the group.
MR. HATCH: Do you have any personal feelings
about the neighbors? I think you said you got to know them,
met them through a homeowners association?
JUROR NO. 37: Correct.
MR. HATCH: Sometimes those can be friendly,
sometimes hostile.
JUROR NO. 37: It was not hostile, no.
MR. HATCH: All right. You think you can be fair,
then?
JUROR NO. 37: I think so.
MR. ACKER: Ma'am, did I hear you right, it would
be awkward -- you would feel awkward?
JUROR NO. 37: Yeah.
MR. ACKER: Explain.
JUROR NO. 37: I realized that the wife recognized
me after she was looking through the group and she was not
happy to see me there.
MR. ACKER: Okay.
THE COURT: Thank you, Ms. XXXXXXX, very much.
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THE CLERK: Ms. XXXXX, number 44.
THE COURT: Ms. XXXXX, you stood because you had
read something about the case?
JUROR NO. 44: Yeah. I told my family I was doing
jury duty. They asked what the case was about. I don't
know. Last night I got on line. I didn't read a lot
because I didn't feel like it would be ethical to read a
lot. I did read it was going to be a three-week case and
kind of panicked. Honestly, your description of the case
made more sense than what I read. Does that make sense? I
just heard it was between Novell.
THE COURT: I'll take that as a considerable
compliment.
JUROR NO. 44: I really skimmed. I was just
trying to see what it was about. It was between Novell, and
the other company I never heard of before. That it was a
dispute, like you explained.
THE COURT: Did you learn enough that you came
away from that brief reading with an idea about who ought to
win?
JUROR NO. 44: No.
THE COURT: No inclination at all?
JUROR NO. 44: I didn't read enough because I
didn't feel like it was ethical of me to do so.
THE COURT: Your instinct, again, was correct.
126
Ms. XXXXX, it's important that we make certain
that no one sits on this jury who has a bias or a prejudice
or a preconceived notion about how this case ought to turn
out. As you sit here right now, do you have anything of
that sort?
JUROR NO. 44: I don't know. The one thing that
hit me as I was reading, as you said, it was based on --
see, I'm not a computer person. The Linux system was kind
of what I read. I thought that was a free version anyone
can use. That struck me as kind of odd there would be a
lawsuit involving what I thought was a free system. The
rest, unlawful, I didn't read very much. I don't understand
that part.
THE COURT: As you sit here, is there any reason
why you don't think you should be allowed to sit on this
jury?
JUROR NO. 44: That I shouldn't be allowed to sit,
no. It would be a hardship. I'm a junior high school
teacher and my students would have a substitute for three
weeks, but we could make do. We could make do.
THE COURT: Any questions for Ms. XXXXX?
MR. HATCH: You indicated your husband had done an
internship at Novell through school.
JUROR NO. 44: Yes. He was going to BYU. Another
student in our neighborhood we went to church with, I think
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they worked at Novell, were quitting. They knew there was
an opening for an internship. My husband was doing
financials. And so he worked part-time, 20 hours a week, if
I remember correctly, for about a year. He did collections
where he worked with accounts that weren't currently being
paid. It usually was with school districts, kind of a
problem with the financial secretaries, it wasn't being
taken care of. Like I said, he worked for about a year
during the summer. I was working at the time. And it was a
stretch for him to work and go to school, so I convinced him
to quit and just work so he could focus on school. That
was, I think, four years ago. He worked for three years.
Now he's back doing an MBA this year.
MR. HATCH: Was his experience at Novell a
positive one or a negative one?
JUROR NO. 44: It was a good resume builder. It
was a good internship when internships were hard to find. I
don't know that I have positive or negative feelings. Like
I said, it was a job when it was hard to find a job.
MR. HATCH: Would that cause you to lean one way
or another towards Novell?
JUROR NO. 44: I honestly do not think so. I
would understand and be very respectful of you not wanting
me on the jury because of that relationship.
MR. HATCH: Thanks for your honesty.
128
THE COURT: Anything, counsel?
MR. BRENNAN: No.
THE COURT: Thank you, Ms. XXXXX.
How many more do you have?
THE CLERK: Just one.
THE COURT: We'll never get to these. Right now
I'm wondering if it's worth our time to bring another one
in. Would any of you object if we did not have -- which one
is it?
THE CLERK: The older lady in the back.
THE COURT: Just go ahead and tell her she doesn't
need to come back, okay.
THE CLERK: But you can't do your causes until I
come back.
THE COURT: If there's any doubt who runs things
around here.
Counsel, just so you know, what I'll now do, I'll
tell you those I intend to dismiss for cause. I will tell
you the reason why. After you've heard that, if any of you
want to argue against my decision, I'll give you a chance to
do so. Then I'll give you an opportunity to argue for those
additional dismissals for cause, okay.
I would dismiss juror number two because of her
student full-time status. Juror number ten, same problem,
unpaid work, can't miss. Ms. XXXX obviously, because she's
129
pregnant. Juror number 15 because of the employment. Same
for juror number 17, employment. Juror number 18,
employment. Juror number 21, employment.
Am I going too fast?
MR. HATCH: No.
THE COURT: Juror number 30, employment. Juror
number 31, who is a student. Juror number 34 because of his
employment. Juror number 37 because I was concerned with
her answer about having a neighbor. Juror number 38 because
of their student status. Juror number 41 for a number of
reasons, unless someone wants to --
MR. HATCH: After the trial I'll share my notes.
THE COURT: Juror number 46 because of his
conference, the fact he's got a brother getting married.
Again, is there any of those I just gave you that
any of you would like to argue against being dismissed for
cause.
MR. HATCH: Not from us, Your Honor.
MR. BRENNAN: No.
THE COURT: Is there anyone else that you want
dismissed for cause?
MR. BRENNAN: I would like to talk about juror
number 22, Your Honor.
THE COURT: This is the lady who knows Mr.
Tibbetts from 20 years ago.
130
MR. TIBBETTS: Do you want me to step out?
MR. BRENNAN: No, Ryan. My view of that is, from
my own experience in the LDS culture, when people are in the
same ward, they do form a unique and special relationship.
They may not be close personal friends, but there's a tie
that develops. And I think that presents an awkwardness of
its own sorts.
THE COURT: Mr. Hatch, do you wish to respond?
MR. HATCH: I would say ten years ago, that's
sometime ago.
THE COURT: I think it's best that we dismiss
juror number 22 for cause, then. The reason why, I don't
want the possibility that after she serves, it doesn't go
well for Mr. Tibbetts' client, they met on the street, she's
worried what happens if I see him. That's something we
don't need to have.
THE CLERK: Was number 34 cause?
THE COURT: Yes.
MR. HATCH: What number did you say, Sandy?
THE COURT: She asked about 34.
Is there anyone else who you want to argue should
be dismissed for cause?
MR. HATCH: Your Honor, four would be the first
one we have. This woman has got a -- she claims to have
been working 25 years for software developers. She's on my
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list. She owns IBM stock. I worry about her feeling she
has a financial interest. She had a couple hundred shares.
So I worry about her financial concerns. The computer
system she's working with her employer as well concerns me.
She may be more of an expert than she really is.
THE COURT: Response.
MR. BRENNAN: We disagree. Three reasons. First,
the mere ownership of IBM stock should not be a
disqualifier. IBM is not a party to the action. Just on
the issue of IBM, the only issue that deals with IBM in this
case is a court decision, not a jury decision. And I am
not -- certainly I know what IBM is trading at. If I did
the math, a couple hundred shares is not a monumental amount
of money in any event.
THE COURT: Is there anything in this case that's
going to make it appear to the jurors that the outcome of
the case will affect stock value of IBM?
MR. HATCH: As we all know, the follow-up lawsuit
is IBM.
THE COURT: Is there anything about that that's
going to have a juror thinking my IBM stock value is going
to be affected by this decision?
MR. HATCH: I believe so. I believe they are
going to be challenged. We're going to put on evidence that
Novell received money from IBM, and that's part of it.
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MR. BRENNAN: Well, whether that evidence is
admitted or not I suppose remains to be seen. Again, IBM is
not a party to the litigation. So even if evidence were
admitted on that subject, the only party that has a
potential liability is Novell and/or SCO on the
counterclaim. So that's a pretty attenuated connection.
In terms of employment, what she -- what I heard
her say is that she's aware that the company she works for
has some platforms that use Linux. She has no experience
with Linux. She does not use Linux in her particular
responsibilities. And even if she were a Linux users, Linux
is not on trial here. And so that issue doesn't appear to
be a disqualifier.
THE COURT: I will state this: I do not intend to
dismiss for cause jurors simply because they are familiar or
work with Linux. I think that's too attenuated to do that.
I am, however, concerned if the evidence is admitted, you
perhaps will argue it ought not to be, ultimately if I
decide it is, I am worried about jurors who have personal
investments in IBM drawing a connection. I just don't think
it's necessary that we run that risk. So for that reason, I
will dismiss number four.
MR. HATCH: Your Honor, number 23, XXXXXX
XXXXXXXX. He's the one we just brought in and talked about
reading about the case. I think the thing that concerns us
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most about that is, in particular, he talked about the prior
lawsuit before Judge Kimball. Apparently, of all the things
he read about was that Novell had apparently won what he
recalled a two and a half million dollar settlement. The
last thing we want is a jury who is going to go back into
the jury room and Novell won the first round of this. He
seems --
THE COURT: The only problem with that is he also
acknowledged he found out that decision was reversed. It,
frankly, could play on either side. Novell won it first.
MR. HATCH: We're all playing -- we're all playing
a guessing game in this whole process, I agree.
MR. BRENNAN: He also said he learned more about
the case in the Court's limited introduction than he did in
any article that he read. Nothing that the Court disclosed
today would indicate a prejudice or an interest one way or
another, it was a neutral description, and he said he
learned more that way.
I do think that he didn't read any of the blogs or
other sites that are following the case that may have said
something -- I'll use the term more insightful or more
weighted on one side or the other. Wikipedia material has
never been cited as a site. That's the site that's been
following the case, like others. I don't think we heard
anything from him that suggests he would be prejudiced or
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biased, no inquiries, nothing I learned would swing me one
way or the other.
MR. HATCH: He's also the one we talked to. For
sure he's like the most likely to go on line, I know.
THE COURT: But I also think he was told by the
Court your instincts were good. His embarrassed reaction to
that would tell me that he's not going to because of what he
now knows. He can go either way.
I'm surprised both of you aren't saying let's kick
him off to make certain. If you're going to argue against
it, I'm going to keep him on. He was very sincere in saying
he has no prejudice, no bias, and I'm just going to have to
deny your request. Okay.
MR. SINGER: Lodge an objection to that.
THE COURT: Your objection is certainly noted.
Anyone else, Mr. Hatch?
MR. HATCH: Yeah, 26. Twenty-six, this is the one
we just had in. She seemed like a nice lady. She spent the
whole morning talking about, constantly, her sons and her
husband. And I do have some concern. They talked about
this particular dispute. They talked about working on
Linux. And she seems not terribly knowledgeable, but also
seems terribly easily influenced. I'm somewhat concerned
about her family being involved.
THE COURT: I would share that concern. I don't
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think she sits here today with any preconceived notion. The
temptation to discuss it with her husband and son, them to
discuss it with her once they found out this is the case.
MR. BRENNAN: It's not enough to disqualify her.
I think these jurors are going to be admonished not to
discuss the case. She said that herself, she would be very
careful. My concern is that any one of the jurors could
fall into this rubic --
THE COURT: Well, I think she's different because
of her constant reference to her son and husband's business,
and so on. I think, out of an abundance of caution, because
my fear is she's going to be somehow influenced by them
during the course of this trial, whether inadvertent or
advertent, I'll dismiss her for cause, number 26.
Mr. Hatch, anyone else?
MR. HATCH: The only one left is number 44, who
just came in. She's the one with the husband who interned
at Novell. Sounds like, overdramatically, for the record, a
financial burden. He worked for a year there. Also read
about the case, although she didn't seem to have a ton of
knowledge about it.
THE COURT: Mr. Hatch, I heard nothing that would
disqualify her. To the contrary, I think she probably would
be a very good juror.
MR. HATCH: The only thing I would add, she said
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at the end, I would understand if you felt I would need
to --
THE COURT: I think she would like to get off.
She didn't want to miss her teaching. I won't dismiss her.
Let me go through the list once more so we all
have the same list. It will be noted on the blue sheet that
will be handed back and forth to you. Let's make certain
she has the right list.
Those who are already dismissed for cause will be
jurors number two, four, ten, 11, 15, 17, 18, 21, 22, 26,
30, 31, 34, 37, 38, 41 and 46. All right.
Will you go find out about number 36, Tom.
Maybe you better do that. Can you go find Mr.
XXXXXX, and find out -- he should be in there. Do you
remember what he looks like? Middle aged, balding.
You may recall, Mr. XXXXXX, juror 36, indicated he
may have a concern that his mother is seriously ill in
St. George and he has to go down there. Mr. Copeland went
to find out.
MR. SINGER: Will we also have a few minutes after
we finish?
THE COURT: What we'll do is leave plaintiffs in
here.
Ms. Malley, will you take defendants into our
conference room.
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How long will you need to discuss this? Ten
minutes?
MR. BRENNAN: Fifteen, if we could.
THE COURT: The jury will be sitting in there, but
that won't hurt. I want to give you enough time. Again,
you each get three. And plaintiffs will go first. When Ms.
Malley hands you the blue sheet, mark the person you want to
strike. She will hand it back. After defendants have made
their third one, plaintiffs hand it back again.
If this was a criminal case, because we had an
alternate, we would have selected 12 jurors and given
another preemptory. It's not. We've checked. I'm
confident you still get three, although we have one
alternate, take the 13.
MR. SINGER: Does that constitute a final waiver,
the three strikes?
MR. ACKER: In the same round, Your Honor?
THE COURT: No, passing, okay.
MR. ACKER: If we were to pass and they hadn't
exercised their preemptories, they could still exercise
another preemptory?
THE COURT: They could, yes. If you passed then.
MR. ACKER: Once you pass, you are done?
THE COURT: Yes.
What did he say?
138
MR. COPELAND: He talked to his sister. She's
fine. He thinks he will be okay.
THE COURT: Okay. Is there anything else, then?
MR. ACKER: Not on our behalf, Your Honor.
THE COURT: After we select the jury, what I will
do is we'll seat them, dismiss the others. I will give them
preliminary instructions. Then we'll excuse them for the
afternoon, okay. I won't read the uncontroverted facts.
I'll do that right before you do your openings. Is that
agreeable to all of you?
THE CLERK: Judge, we'll let them come in here and
eat.
THE COURT: We'll give you 15 minutes, then.
(Recess)
(Whereupon, the following proceedings resumed in
the courtroom.)
THE COURT: Ladies and gentlemen, thank you for
your patience. This took a little bit longer than we
expected, but we're almost through. I indicated earlier
this morning that the attorneys in this case have the
opportunity to exercise preemptory challenges, meaning you
can be stricken as a juror without them having to give you
any reason. This process will take a few minutes and it
will involve Ms. Malley handing back and forth a blue sheet
with your names on it. During the course of this, if you
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find the attorneys looking at you, glaring into your eyes
and trying to remember what it was you said, don't be
nervous. This is just what happens.
Ms. Malley, if you would.
Ladies and gentlemen, Ms. Malley is now going to
read the names of the 13 jurors. She will also, with that
name, give you a number. And those of you whose names are
called, please pay attention to the number because that will
be your juror number for purposes of sitting in the juror
box with juror number one up at the top on the right-hand
side through six, and then juror number seven on the bottom
right through juror 13.
After your names are read, if you will please make
your way forward and sit in the juror box. As soon as we
have all of them seated, we'll be able to dismiss the rest
of you.
THE CLERK: Jury number one is XXXX XXXXXX, number
two is XXXXXX XXXXX, number three is XXXXXXX XXXXXXX, number
four is XXXXXX XXXXXXX, number five is XXXXXXX XXXXXXXX,
number six is XXXXX XXXXXXX, number seven is XXXXXX XXXX,
number eight is XXXXX XXXXXX, number nine is XXXXXX
XXXXXXXX, number ten is XXXXXXX XXXXXX, number 11 is XXXXXXX
XXXXX, number 12 is XXXX XXXXXXX, number 13 is XXXXXXX
XXXXXX.
THE COURT: Can I get those of you whose names
140
were read to please come and sit in the jury box.
All right. Ladies and gentlemen, as for the rest
of you, I again want to express gratitude to you for being
here and participating in this process. It was important
that we have all of you here so that we may select the best
jury we could. You may now be excused. You go with our
gratitude. Thank you.
MR. HATCH: May we, Your Honor?
THE COURT: If you would, please.
Ladies and gentlemen of the jury, I'm going to ask
you all to now please stand and raise your right hand. Ms.
Malley is going to give you an oath, which I want you to
listen to very carefully because it does dictate how you are
to conduct yourselves as jurors during this trial.
If you can affirm, please say yes at the end of
it.
(Jury sworn)
THE COURT: Ladies and gentlemen, what we're now
going to do is I'm going to give you some brief instructions
that are intended to outline for you how you are to conduct
yourselves as jurors during the course of trial and also to
give you some indication of what will transpire during the
trial. After I've done this, you'll be excused. In the
jury room there will be some refreshments for you, but then
you will be done for the day. If for some reason you don't
141
want those refreshments, that will be fine. You are not
obligated to eat anything. Okay.
Ladies and gentlemen, it will be your duty to find
from the evidence what the facts are. You, and you alone,
are the judges of the facts. You will then have to apply to
those facts the law as the Court will give it to you. You
must follow that law whether you degree with it or not.
Nothing the Court may say or do during the course
of the trial is intended to indicate nor should be taken by
you as indicating what your verdict should be.
Justice through trial by jury must always depend
upon the willingness of each individual juror to seek the
truth as to the facts from the same evidence presented to
all the jurors and to arrive at a verdict by applying the
same rules of law as given in the instructions of the Court.
The evidence from which you will find the facts
will consist of the testimony of witnesses, documents and
other things received into the record as exhibits, and any
facts the lawyers agree or stipulate to, or that the Court
may instruct you to find.
Certain things are not evidence and must not be
considered by you. I will list them for you now.
First, statements, arguments and questions by
lawyers are not evidence.
Second, objections to questions are not evidence.
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Lawyers have an obligation to their clients to make an
objection when they believe evidence being offered is
improper under the rules of evidence. You should not be
influenced by the objection or by the Court's ruling on it.
If the objection is sustained, ignore the question. If it
is overruled, treat the answer like any other. If you are
instructed that some items of evidence is received for a
limited purpose only, you must follow that instruction.
Third, testimony that the Court has excluded or
told you to disregard is not evidence and must not be
considered.
And, fourth, anything you may have seen or heard
outside of the courtroom is not evidence and must be
disregarded. You are to decide this case solely on the
evidence presented here in the courtroom.
This is a civil case. Plaintiff has the burden of
proving its case by what is called the preponderance of the
evidence. That means plaintiff has to produce evidence
which, considered in the light of all the facts, leads you
to believe that what plaintiff claims is more likely true
than not. To put it differently, if you were to put
plaintiff's and defendant's evidence on opposite sides of
the scales, plaintiff would have to make the scales tip
somewhat on its side. If plaintiff fails to meet this
burden, the verdict must be for defendant.
143
Defendant has also brought a claim for relief
against plaintiff called a counterclaim. On this claim,
defendant has the same burden of proof that plaintiff has on
its claim.
Those of you who have sat on criminal cases will
have heard of proof beyond a reasonable doubt. That
requirement does not apply to a civil case and you should
therefore put it out of your mind.
In this particular civil case, one of the elements
of the claims made by the parties has a different burden of
proof called clear and convincing evidence. That means the
party making those claims has a higher burden than
preponderance of the evidence. But it does not require
proof beyond a reasonable doubt. Clear and convincing
evidence is evidence that shows it is highly probable that
what is claimed is true. It is evidence that produces in
your mind a firm belief as to the facts at issue.
For such evidence to be clear and convincing, it
must at least have reached the point where there remains no
substantial doubt as to the truth or correctness of the
claim based upon the evidence. I will instruct you further
after you hear the evidence which element of the parties'
claims requires this heightened burden of proof.
The jury is the sole judge of the credibility of
the witnesses and the weight to be given their testimony.
144
You should take into consideration their demeanor upon the
witness stand, their apparent intelligence or lack of
intelligence, their means of knowledge of the facts
testified to, the interest, if any, which any witness may
have in the outcome of this trial, the prejudice or motives,
or feelings of revenge, if any, which have been shown by the
evidence. In so doing, you may take into consideration all
the facts and circumstances in the case and give such weight
as you think the same are entitled to, in light of your
experience and knowledge of human affairs.
During the trial it may be necessary for me to
talk with the lawyers out of your hearing, either by having
a bench conference here while you are present in the
courtroom, or by calling a recess. Please understand that
while you will are waiting, we are working. The purpose of
these conferences is to decide how certain evidence is to be
treated under the rules of evidence and to avoid confusion
and error. We will, of course, do what we can to keep the
number and length of these conferences to a minimum.
Next, a few words about your conduct as jurors. I
want you to pay particular attention to what I am about to
say to you.
First, I instruct you that during the trial you
are not to discuss the case with anyone, including fellow
jurors, or permit anyone to discuss it with you. Until you
145
retire to the jury room at the end of the case to deliberate
on your verdict, you simply are not to talk about this case.
I will stress that means family, friends, neighbors,
strangers on the street. You just simply are not to discuss
the case.
Not talking about this case means not talking
about it in any way, including by Internet, e-mail, text
message and instant communication devices or services, such
as cell phones, Blackberries, iPhones, or social networking
Web sites, such as Facebook, Twitter, My Space, Linkedin,
YouTube, and so on.
Second, do not read or listen to anything touching
on this case in any way. Do not watch or listen to any news
programs or reports concerning this trial on television or
on the radio, and do not read any news accounts of this
trial in a newspaper, on the Internet, or on any instant
communication device, including, again, Facebook, Twitter,
and so on. If anyone should try to talk to you about this
case, bring it to my attention immediately.
Third, do not do any research or make any
investigation about this case on your own.
Finally, do not form any opinion until all of the
evidence is in. Keep an open mind until you start your
deliberations at the end of the case.
The Court will permit jurors to take notes during
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the course of this trial. But if you do, leave them in the
jury room when you leave at night. And, remember, they are
for your personal use. I will note that notebooks will be
made available to you, so you don't need to bring your own.
You, of course, are not obligated to take notes.
If you do not take notes, you should not be influenced by
the notes of another juror, but rely upon your own
recollection of the evidence.
Notetaking must not be allowed to interfere with
the ongoing nature of the trial or distract you from what
happens here in court. Notes taken by any juror, moreover,
are not evidence in the case and must not take precedence
over the independent recollection of the evidence received
in the case. Notes are only an aid for recollection and not
entitled to any greater weight than actual recollection or
the impression of each juror as to what the evidence
actually is. Any notes taken by any juror concerning this
case should not be disclosed to anyone other than a fellow
juror.
At the end of the trial you must make your
decision based on what you recall of the evidence. You will
not have a transcript of the trial. I urge you to pay close
attention to the testimony as it is given.
The trial will begin tomorrow morning. At that
time each side will make an opening statement. An opening
147
statement is neither evidence nor argument; it is an outline
of what that party intends to prove, offered to help you
follow the evidence.
Next, plaintiff will present its witnesses and
defendant may cross-examine them. Then defendant will
present its witnesses and plaintiff may cross-examine them.
At the close of the evidence, the Court will give
you instructions on the law, after which the attorneys will
make their closing arguments to summarize and interpret the
evidence for you.
You will then retire to deliberate on your
verdict.
Ladies and gentlemen, I now will ask Ms. Malley to
assist you into the jury room. Again, as I indicated, there
should be some light refreshments. We'll begin promptly at
8:30 in the morning. I ask that you please make certain
you're all here well in advance of the 8:30 hour so we do
not have to wait for any late juror. And I want you to pay
particular attention to the fact that I have now instructed
you on your conduct both in the courtroom and in the jury
room and outside. In the morning I will ask you whether or
not you have complied with those things that the Court has
instructed you to do and those that you are not to do.
Ms. Malley, if you would please assist the jury
into the jury room.
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(Jury excused)
THE COURT: Counsel, let me give you a couple of
brief rulings on those issues that were raised earlier
today. First of all, the Court will presume that the
minutes of the Novell board meeting will be authenticated by
a witness as a business record. Based on those
presumptions, the Court will allow you to use it in your
opening based upon the assumption it will then be
subsequently admitted into evidence.
As to the reference to the copyright filings by
defendant, the Court will allow you to use it. The Court
has again reviewed the authorities and does not believe it
is privileged, and therefore it will be permitted. You may
do so.
Who will be making your opening tomorrow, by the
way?
MR. SINGER: Your Honor, I will be doing the
principal part of the opening and then turning it over to
Mr. Hatch.
THE COURT: All right.
MR. BRENNAN: Your Honor, I will be making the
entire presentation for Novell.
THE COURT: Thank you, Mr. Brennan.
Counsel, do any of you have -- let me -- one other
thing. I'm going to presume that one or both of you want to
149
invoke the exclusionary rule and therefore the witnesses
will be out of the courtroom until they are called?
MR. BRENNAN: Yes, Your Honor. In fact, I think
at the pretrial conference we agreed that shall be the
order.
THE COURT: Is there anything else, then, we need
to deal with here today?
MR. SINGER: I do not believe so, Your Honor.
THE COURT: Mr. Singer, thank you.
Mr. Brennan, do you have anything?
MR. BRENNAN: Yes, Your Honor, just a question
about the scope of the exclusionary rule. We would
understand likely that that would apply to some of the blogs
that might be running on this case and providing commentary.
Would that be in the Court's mind as well? In other words,
there could be commentaries that are on line that would be
reporting the testimony of the witnesses on a daily basis.
THE COURT: To me, the exclusionary rule means you
don't have witnesses in the courtroom. What is it you are
asking me, whether or not those witnesses will be permitted
to --
MR. BRENNAN: They ought not be reviewing
materials that would be reporting on --
THE COURT: I would certainly agree that would be
included with the exclusionary rule.
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Mr. Singer.
MR. SINGER: We agree, Your Honor.
THE COURT: Will you please make certain that your
witnesses are so informed. I do appreciate you bringing
that to our attention.
MR. BRENNAN: We've done that with our witnesses,
Your Honor.
THE COURT: Good.
Tomorrow on your openings, counsel, I will keep
track of the time. I will inform you when you get close.
All right.
MR. SINGER: Your Honor, one question. Do you
have any restrictions on moving around the courtroom during
opening?
THE COURT: As long as you can be heard, Mr.
Singer. That's the only thing.
MR. SINGER: Thank you.
THE COURT: All right. Counsel, we do have
hearings this afternoon, so I would ask that we clear the
tables to the extent you can.
And if there is nothing else, we'll be in recess
until 8:30 tomorrow morning.
(Whereupon, the trial was continued to Tuesday,
March 9, 2010 at 8:30 a.m.)
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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
[address, phone]
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