Got our first look into the new Federal Courthouse in Utah.
I hope you like glass.
Upon entering the new building, I found that one no longer needs surrender one's cell phone; just promise to turn it off when in the courtroom. When I asked directions to the clerk's office to check on the docket, I was directed to the row of touch-screen kiosks along the back of the lobby.
The touch-screen defaults to "Today's Menu" (only one item, Risotto Chicken - maybe there was more at lunch time, I don't know); the next item down, "Today's Schedule" brings up two columns: choose first letter of the case title, or choose by judge. Choosing Judge Nuffer showed SCO v. IBM as the last item of the day's schedule, in courtroom 3.100 on the third floor. "Three-one", the security people call it.
You can go over to the elevators, where the floor is entirely of frosted glass. The elevator doors - both inner and outer - are glass in aluminum frames - you can get a good view of the inner workings of the elevator. If that's not your thing, you can take the spiral staircase (frosted glass stair treads) up to the bridge (glass, again) over to the unvarnished oak of the third floor foyer.
I was up there when SCO's counsel, Ted Normand, came up the stairs. He had a really firm grip on the rail, and hesitated before gingerly stepping out on the bridge. He looked up at me and shook his head ruefully as he did so. I didn't laugh at him - I had actually knelt down at that same spot to check out how thick the glass was. (It's two slabs, looks like 2 centimeters thick each. Plenty strong - but instincts don't engineer away that easily.)
The rest of the SCO group came up the elevator - Brent Hatch, Stuart Singer, Jason Cyrulnik, and Ryan Tibbitts.
(Hmm - I was just using Groklaw to check spellings, and noticed that Jason Cyrulnik doesn't show up in the SCO v. IBM timeline. He was in the Novell proceedings, but there's no "Motion for Admission Pro Hac Vice" in the IBM docket like there is in Novell [docket 514.])
The IBM group - David Marriott, Amy Sorenson, and Amber Mettler - came up afterward. Others in the gallery were Tom Harvey of the Salt Lake Tribune; Darl McBride, and a sidekick - I've seen him at hearings before, but don't recall the name. Three other people in the gallery who I don't know. Judge Cahn was not in attendance.
Judge Nuffer asked that the attorneys on each side take things fairly slowly, because he was taking notes by hand. His computer had been taken about a half hour earlier because of some problem.
(I had seen the IT guys leave the courtroom with it - one carrying the computer, the other packing the monitor - made me wonder. Why do you take the monitor, too? It's probably irrelevant. It'd be almost like taking the user's chair.)
Oh, yeah... Judge Nuffer doesn't have a chair.
He explained that he doesn't sit for hearings because he doesn't want to die early of a heart attack. And he commends the position to us all - says it feels much better to stand. In fact, he's hoping he can get a dozen treadmills to install in the jury box. Keep the jury both healthy and awake.
He started out commenting that if you've missed most of a movie, and just walk in on the last ten minutes, it might be a bit difficult to get a handle on what's going on in the movie. This case isn't like that, he says.
It's more like you'd never heard of Lord of the Rings - and then find out that J.R.R Tolkien had died and you were tasked with finishing the last hundred pages of Return of the King.
He asked for an extremely high-level overview of the case - the kind you'd give to somebody you'd just met at a soccer game or a barbeque.
So he asked if the parties could create a timeline of the case. IBM had one available - Judge Nuffer asked them to provide copies to SCO; if, after examination, SCO agreed with it, or if the parties could redline it into something they both liked, they could hand it up to the judge.
Mr. Marriott was then given an opportunity to talk through the timeline. Judge Nuffer seemed quite interested in which judges were assigned to the case at particular times; kind of a who-did-what view. Mr. Marriott did the overview with an eye to dates and major developments in the case; plus highlighted some details - without which, he said, it would be easy to get confused and draw incorrect conclusions about the case. Such as the identities of the parties - SCO is not the Santa Cruz Operation which was involved in the Joint Development Agreement (project Monterey).
Mr. Singer also got a turn at the mic. He wanted to delve into details, reading excerpts from internal IBM emails about whether or not a compiler should be included in a purported code release of the JDA. Reminiscent of the closing arguments in the 2010 SCO v. Novell trial, he seemed somewhat frantic to get his version of the facts across. After a while, Judge Nuffer commented again that he wanted the "view from 100,000 feet" - no details at all. He also commented "while you were talking, I've been reading some things," going on with what he had found - making it clear to Singer that the judge had pretty much ignored his in-depth stuff. At that, Singer recalled that SCO also had a timeline, which he handed up to the judge.
Judge Nuffer wanted to know if he can moot reconsideration of Magistrate Well's order to confine (docket #906). Both sides were in agreement. That seems like a long stride of progress to me.
One item Judge Nuffer brought up seemed to somewhat surprise both sides. He asked, "Has anything in this proceeding touched on the issue of compliance with the GPL?"
(I didn't jump up and cheer. I sure wanted to, though. We'll see what happens.)He also asked about what judicial resources he could bring to bear to "assist" in the resolution of the case. He seems to find considerable irony in the fact that he was involved in this case back when he was a magistrate judge... and now it has come back to him when he is the Chief Judge.
"Judge Kimball recused himself?" Nuffer asks... and speculates on giving the case back to him. SCO doesn't look pleased.
"Judge Stewart assigned this case to me?" he says later. "It might be fitting to give it back." David Marriot at the IBM table is being very bland. SCO's counsel looks very unhappy.
"Do you think mediation would help? It's been twelve years, so I imagine that it's not likely you could just wave and make up a settlement. But perhaps with some assistance you could at least reduce the areas of disagreement? I could assign [Chief] Magistrate Judge Wells to help you..." Marriott has a very oddly bent smile. Singer's glare appears able to set off forest fires.
Judge Nuffer asks SCO about the bankruptcy. Singer states that since they are in bankruptcy liquidation, the ongoing litigation is the only asset remaining to SCO. Is there any point, then, asks the judge, in proceeding on IBM's claims? Since there would be no way for SCO to pay anything in case of a loss?
Marriott says their claims are as an offset, in case SCO were able to win something.
But what about the order of trying the claims, wonders Judge Nuffer. Perhaps SCO could go first, and if they don't win anything, then the IBM claims would never need to go to trial - SCO would be fully defunct without ever needing to face the IBM claims? Stuart Singer sounds satisfied with this plan.
Marriott is more dubious. He can see the logic in it, but says that some of the IBM claims, if won, would pre-empt the SCO claims so quickly and thoroughly as to be the better judicial efficiency.
The judge agrees to take the issue under advisement - he wants to see more facts and will then come to a schedule.
Wondering about how much SCO stands to gain if they win, he asks what their damages are. No immediate answer. SCO's people are all looking at each other; Judge Nuffer asks if they had had an assessment of damages done by an expert. Oh, yes, they recall. Dr. Gary Pisano and Dr. Christine Botosan, those were the experts, they did the damages estimates.
(Note - I wonder if they forgot something. I have a quote from Dr. Botosan's testimony on the stand in SCO v. Novell, while under cross by Sterling Brennan, when he asked her what kind of instructions she had received from SCO when they hired her.
Novell's "wrongful acts" were to state - truthfully, it turns out - that SCO didn't own Unix.
And she came up with a damages range of $114 million to $215 million in lost sales. Selling "RTU" packages - 'rights to use' - on software that SCO didn't own. (OK, they didn't tell her that part. Shame, really.)
I am somehow dubious that the given methodology adequately applies to the situation between SCO and IBM.)
Edit: Thanks to [sk43999], who commented below, I looked harder, and find that Botosan and Pisano both did file expert reports in SCO v. IBM. I stand corrected. I haven't yet found text of those reports, so I don't know how much was claimed. Yell if you know.Anyway, Judge Nuffer goes on to give both sides some homework. How long would it take, he asks, for the two sides to get together and reconcile all the facts on docket #782? He looks to both parties; big, challenging smile and giving no hints what kind of time frame he is expecting. Singer looks across at Marriott; both shrug. "60 days?" Singer sounds like he's not sure if he wants his suggestion to be heard by the judge.
"As soon as you're done, I plan on doing the same thing with #783," says Nuffer.
"Uh... 30?" says Marriott.
"Oh, I'm sure if you really wanted to, you could do this in a morning. You could have it knocked out before lunch," says Judge Nuffer.
That was where the conference ended. I note that Judge Nuffer didn't give them a deadline on this item. However, docket #1149 has shown up, and I quote from it:
I'm thinking I might get to meet Magistrate Brooke C. Wells. I'm looking forward to it.