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Judge Koh Agrees to Hear Oral Argument Dec. 6 on Jury Misconduct and When Apple Learned of It ~pj Updated
Friday, November 09 2012 @ 05:30 AM EST

The Hon. Lucy Koh has ruled [PDF], sort of, on Samsung's motion to compel Apple to reveal when it learned about the jury foreman not answering fully in voir dire. By sort of, I mean she says she will hear oral argument about it on December 6th, along with everything else, and then if she grants Samsung's motion to compel, she'll likely order fuller briefing before ruling on Samsung's motion for judgment as a matter of law, another motion already before her that will be argued on December 6th also.

I know. It seems like a kick the can down the road order. True, she's really busy, and she doesn't want to make a mistake. A lot is riding on this. She also probably doesn't want to read any more briefs than she really needs to, but normally Samsung would get to respond to Apple's opposition, so it's a little strange. California needs to fund its courts and create an atmosphere where judges can work without being overburdened. But the upside for Samsung is that she's apparently taking their motion seriously, despite Apple's opposition, and she did not deny it out of hand. But she could have granted the motion without oral argument as well. Considering how hard it is to establish jury misconduct, though, I'd call this a win for Samsung, or more accurately that Samsung has made it over the first hurdle, with more to come on the 6th. If any of you can make it for the hearing, that'd be important, I think. That's in San Jose, California, Dec. 6 at 1:30 PM. If you can go, email me please, and we'll talk.

The order reads like this:

On October 30, 2012, Samsung filed a motion to compel Apple to disclose the circumstances and timing of Apple’s discovery of certain information regarding the jury foreperson. ECF No. 2108. On November 2, 2012, Apple filed an opposition. ECF No. 2118. At the December 6, 2012 hearing, the Court will consider the questions of whether the jury foreperson concealed information during voir dire, whether any concealed information was material, and whether any concealment constituted misconduct. An assessment of such issues is intertwined with the question of whether and when Apple had a duty to disclose the circumstances and timing of its discovery of information about the foreperson. Accordingly, the Court will address Samsung’s motion to compel at the December 6, 2012 hearing. If the Court grants Samsung’s motion to compel, the Court will likely order supplemental briefing before ruling on Samsung’s motion for judgment as a matter of law.


The part that doesn't strike me as being so favorable to Samsung is the part about whether or not what happened really matters. If she can't tell from the briefs already before her that "the jury foreperson concealed information during voir dire, whether any concealed information was material, and whether any concealment constituted misconduct", I wonder what it would take to convince her. But if she wanted to be convinced, why block Samsung's reply brief? Is she so busy she forgot about where we are in the process? Normally, motions go like this: 1) Party A files a motion, 2) Party B opposes, and then 3) Party A gets to reply to the opposition. Then there is oral argument if needed, and then the judge rules. Here, we've taken steps 1 and 2, and there's a judge ruling there will be oral argument, but there's no step 3. That's been skipped over. And while Samsung will have an opportunity to answer any questions the judge may have that made her decide on hearing oral argument, so will Apple. But if I were Apple, I'd be a bit worried about this ruling, and I'd take it that she does want to know why Apple won't answer a simple question like when it learned about the problem in voir dire. It struck me as suspicious, so maybe it did her as well. I recall during the trial, she told the lawyers for both sides, outside of the jury's hearing, that she didn't trust what any of them told her. So maybe she is thinking about Samsung's charge that perhaps Apple knew before the verdict and said nothing to the judge. If that's what this is about, Apple needs to have a mighty strong answer ready, I'd say.

There is also an elaborate order [PDF] from the magistrate judge, Paul Grewal, on sanctions the parties both have to pay for discovery issues. Both sides got sanctioned, both were ordered to pay, and both complained about the amount. They were supposed to provide more detailed invoices, but neither side did, so the judge tried to figure it out himself from what he had, and he reduces the sanction on each, with the net result that Samsung comes out ahead:

IT IS HEREBY ORDERED that within seven days of this order Apple shall pay to Samsung $160,069.41 as the sanction award from the court’s July 11 order.

IT IS FURTHER ORDERED that within seven days of this order Samsung shall pay to Apple $21,554.14 as the sanction award from the court’s April 23 order.

I would guess that both of these judges will be very glad to see Apple v. Samsung come to a close. It's such a hard-fought battle, it makes a lot of work for the judges.

Update: I see the media making a few mistakes, so rather than correct anyone in particular, I thought it would be kinder to just set out the facts correctly. The issue isn't just what was said in voir dire. Samsung's motion for judgment as a matter of law raised another issue, one that I think is more serious and more likely to matter to the judge than when Apple knew about the voir dire matter. Samsung's motion was originally filed with the section on jury misconduct sealed, but here is that section unredacted after the judge ordered it to be so. You can read the entire section on that page as text, but I'd like to highlight here the other issue in addition to not mentioning the Seagate litigation during voir dire:

Finally, Mr. Hogan’s self-reported conduct during the jury deliberations presents the “reasonable possibility” that extraneous material “could have affected the verdict.” Sea Hawk Seafoods, Inc. v. Alyeska Pipeline Serv. Co., 206 F.3d 900, 906 (9th Cir. 2000). In post-verdict interviews with the media, Mr. Hogan said that he told his fellow jurors an accused device infringes a design patent based on “look and feel” (Estrich Decl. Ex. N), that an accused device infringes a utility patent unless it is “entirely different” (id. Ex. M), that a prior art reference could not be invalidating unless that reference was “interchangeable” (id. Exs. L, N), and that invalidating prior art must be currently in use (id. Ex. O). These incorrect and extraneous legal standards had no place in the jury room. See Hard, 812 F.2d at 485; Gibson v. Clanon, 633 F.2d 851, 853, 855 (9th Cir. 1981); United States v. Perkins, 748 F.2d 1519, 1530-33 (11th Cir. 1984); Casanas v. Yates, 2010 WL 3987333, at *6 (N.D. Cal. Oct. 12, 2010) (approving for cause dismissal where juror “was applying his experience to question the law, not using his experience to determine the facts”).

For all these reasons, Mr. Hogan’s conduct during voir dire and jury deliberations must be fully examined in a hearing with all jurors and can be cured only by a grant of new trial.

This is precisely why the judge asks prospective jurors if they were ever involved in any prior litigation, even as a witness. As the judge told them, she wanted to be sure they did not do what Hogan in his own accounts says he did do.

As you can imagine, this is a much more serious claim, and it will come up on December 6th at the hearing.

When Apple knew about the failure to mention the Seagate litigation will be discussed, but first both issues, especially this issue of introducing extraneous materials, will be argued, so that the judge can decide if it matters to the outcome and whether it reaches the bar of misconduct. The extraneous issues introduction is the one that I think is going to ultimately be the one that makes or breaks Samsung's JMOL motion. I'm sure you can understand why it's so important that a juror not transform into an "expert" in the jury deliberations -- the other side doesn't get to refute his "testimony". So that's the unfairness of it. And if, as in this case, the other jurors tell the world that this extraneous material was what convinced them and thus they followed wrong "expert testimony", Samsung is prejudiced, to put it mildly.

Yes, it's a high bar, but it's not impossibly high. It will be up to the judge, and then almost certainly the appeals court to decide how high this particular fact pattern reaches.

Here's the transcript of the voir dire that has been released to the public:

THE COURT: okay. Welcome back. Please take a seat. We had a few more departures in your absence. Let's continue with the questions. The next question is, have you or a family member or someone very close to you ever been involved in a lawsuit, either as a plaintiff, a defendant, or as a witness?

Let's see. On the first row, who would raise their hand to that question? All right. let's go to Mr. Hogan.

PROSPECTIVE JUROR: In 2008, after my company went belly up, the programmer that worked for me filed a lawsuit against me and ultimately, across the next few months, it was dismissed and in such a fashion that neither one of us could sue the other one for that matter.

THE COURT: What was his -- what was the employee's claim?

PROSPECTIVE JUROR: It was a dispute over the software that we had developed, whether it belonged to the company or to him, and I had documents that showed it belonged to the company. Ultimately, as I said, it would -- we settled out of court and it was dismissed.

THE COURT: All right. Anything about that experience that would affect your ability to be fair and impartial to both sides in this case?

PROSPECTIVE JUROR: I don't believe so.

THE COURT: Okay. Was there any dispute -- was there any dispute as to who had created and invented the technology, or was it largely who had ownership of it?

PROSPECTIVE JUROR: It was strictly who had ownership of it, and ultimately it was established that the company did have ownership of it, although -- and I still do -- although the company is not in business any longer.

THE COURT: I see. But was there a sort of dispute as to who had created or invented the technology as part of that ownership question?

PROSPECTIVE JUROR: Yes, there was.

THE COURT: Um-hum.

PROSPECTIVE JUROR: But like I said, we settled that -- because of documentation I had, we were able to settle it out of court and then we went back to court one last time for the dismissal paperwork.

THE COURT: Okay. All right. Thank you.... So I want to make sure that both Mr. Hogan, and Ms. Rougieri, that you would apply the law as I instruct you and not based on your understanding of the law based on your own cases. Is that correct, Mr. Hogan?


THE COURT: Okay. All right. Would that in any way -- you'll be instructed on what the law is and would you be able to follow the instructions I give you on the law, even if it may not completely correspond to what you may know about the patent system or the intellectual property laws?

PROSPECTIVE JUROR: Yes, I follow your instructions.

THE COURT: Okay. All right. Thank you. Let's go, I think, to ms. Halim, Mr. Okamoto, and Mr. Hogan. You raised your hands. Okay. let's please start with Ms. Halim.

PROSPECTIVE JUROR: Okay. I have two patents. One is issued when I was at weitek, also I.C. Design. Another one was at silicon graphics.

THE COURT: And it was also on I.C. Design?


THE COURT: Okay. Were patents issued?


THE COURT: And you were the inventor on both?


THE COURT: Okay. All right. Anything from that experience -- basically you obviously will bring your life experience to your role as a juror, but would you be able to set that aside, your previous experience with patents, and decide this case based solely on the law as you're instructed and the evidence that's admitted during the trial?


THE COURT: Okay. Thank you....

THE COURT: Okay. And do you have any patent applications pending now?.... Let's go to Mr. Hogan. You had some?

PROSPECTIVE JUROR: Excuse me. In 2002, I filed for a patent in video compression software, and in 2008, the patent was issued to me. And in 2008 I filed a follow-on patent in more detail and that is currently pending.

THE COURT: I see. Okay. All right....

THE COURT: Now, same for Mr. Tepman, as well as to Mr. Hogan. You all have a lot of experience, but will you be able to decide this case based solely on the evidence that's admitted during the trial?


THE COURT: Okay. Mr. Hogan says yes. What about Mr. Tepman?

PROSPECTIVE JUROR: I think so, too.

THE COURT: Okay. All right. Thank you. Now, was anyone else going to answer yes to the question of have you ever had an idea taken from you? The record should reflect no hands have been raised. Now, the next question, have you ever been accused of taking an idea from someone else? Would you please raise your hand? All right. Let's go to Mr. Hogan. Would you please pass the microphone, Mr. Tepman? Thank you.

PROSPECTIVE JUROR: As I had stated earlier, that was -- in 2008, that was the accusation against me before the patent was issued. But as I said, that case ultimately was dropped in my favor.

THE COURT: Now, when the programmer sued you, was that programmer also a co-inventor on the patent?


THE COURT: No. I see.

PROSPECTIVE JUROR: The patent was issued totally -- exclusively in my name.


PROSPECTIVE JUROR: And I had filed for that patent prior to his joining the effort to work for it. That was part of my documentation showing that it was mine.

THE COURT: Okay. All right. Let me ask, if you have strong feelings or strong opinions about either the United States patent system or intellectual property laws, would you raise your hand, please? The record should reflect that no hands have been raised....

As you can see, the judge asked if any prospective juror had *ever* been involved in litigation. Ever means ever. If you asked me if I had ever written any articles for Groklaw, I wouldn't say, "Yes, I wrote one today about Apple v. Samsung," and then stop. I'd say, "Yes, I've written about 5,000 articles." Why? Because ever doesn't mean I get to pick one and pretend that is all there is.

And here is a list of articles about the jury foreman's various media events and interviews, so you can verify for yourself if the media coverage matches the facts precisely:

1. Jury in Apple v. Samsung Goofed, Damages Reduced -- Uh Oh. What's Wrong With this Picture?

2. The Foreman's Aha Moment Was Based on Misunderstanding Prior Art

3. Apple v Samsung Foreman Gets More Things Wrong

4. Judge in Oracle v. Google Explains What Jurors Must Not Do -- And It's What the Jury in Apple v. Samsung Seem to Have Done

5. Voir Dire Reveals Broken Promises

6. More Unredacted Documents Surface Re Foreman

7. How Both Sides View Foreman's Voir Dire


Judge Koh Agrees to Hear Oral Argument Dec. 6 on Jury Misconduct and When Apple Learned of It ~pj Updated | 107 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Judge Koh Agrees to Hear Oral Argument Dec. 6 on Jury Misconduct and When Apple Learned of It ~pj
Authored by: eric76 on Friday, November 09 2012 @ 06:08 AM EST
Perhaps she's unconvinced by Apple's opposition and sees any reply by Samsung to
be superfluous at this time. Just wait until later to see if a reply by Samsung
to Apple's opposition might be needed.

Or do judges work like that?

[ Reply to This | # ]

Corrections thread
Authored by: kuroshima on Friday, November 09 2012 @ 06:19 AM EST
Please include a a note on the subject with the actual
correction. Suggested format: wrong->right, though maybe
actual per style regular expressions (s/input
patters/replacement pattern/) would not throw PJ into a
screaming fit like they do non-perl programmers

[ Reply to This | # ]

Newspicks thread
Authored by: kuroshima on Friday, November 09 2012 @ 06:22 AM EST
Please include a (clickable) link to the newspick, so it can
be easily located once the actual blurb leave the main page.

[ Reply to This | # ]

Off topic thread
Authored by: kuroshima on Friday, November 09 2012 @ 06:27 AM EST
No talking about this hearing here. You can talk about other
things in this trial, or about anything at all that isn't
about this trial. Those who do not heed this order will be
subject to a 7 day, 24 hour continuous marathon of Apple
keynote reruns, or, if they so prefer, will have to read all
exhibits and fillings presented in this trial.

It is so ordered (by someone without the power to enforce the

[ Reply to This | # ]

Comes thread
Authored by: kuroshima on Friday, November 09 2012 @ 06:29 AM EST
Transcriptions of the Comes vs Microsoft documents should be
placed here, in HTML format, but posted as POT*

*Plain Old Text, you TLA** illiterate younglings
** Three Letter Acronyms

[ Reply to This | # ]

Judge Koh Agrees to Hear Oral Argument Dec. 6 on Jury Misconduct and When Apple Learned of It ~pj
Authored by: kuroshima on Friday, November 09 2012 @ 06:36 AM EST
Does Judge Koh's decision not to allow for Samsung's reply to
Apple's opposition help Samsung on appeal, should things go
pear shaped in the oral argument?

May it mean that she has no need for the reply, because she's
almost sure to grant Samsung's request, and so she does not
want yet another filling to read?

Finally, Do you think she has wisened up to Apple's tactics?

[ Reply to This | # ]

Judge Koh Agrees to Hear Oral Argument Dec. 6 on Jury Misconduct and When Apple Learned of It ~pj
Authored by: Anonymous on Friday, November 09 2012 @ 07:11 AM EST
The part that doesn't strike me as being so favorable to Samsung is the part about whether or not what happened really matters.
Isn't whether or not the concealment was misconduct a rather major point in one of Apple's briefs (ignoring it's invalidity)? If so wouldn't it be in keeping with her attitude so far to bring it up in the hearing regardless of whether or not she thinks it will matter? Maybe I am misreading this but from my pitiful experience this doesn't seem to be bad for Samsung.

[ Reply to This | # ]

California needs to fund its courts?
Authored by: Anonymous on Friday, November 09 2012 @ 07:52 AM EST
California needs to fund its courts and create an atmosphere where judges can work without being overburdened.
This trial was held in a federal court. The state of California has nothing to do with the funding of this judge or her court. It is the backlog of federal judicial appointments that is the cause for this judge to be over worked. Hopefully the Republicans will stop stonewalling all of the judicial appointments that the president has attempted over the last several years now that the elections are over.

[ Reply to This | # ]

Judge Koh Agrees to Hear Oral Argument Dec. 6 on Jury Misconduct and When Apple Learned of It ~pj
Authored by: Anonymous on Friday, November 09 2012 @ 08:52 AM EST
I'll just hope this is a good thing. Its not a denial, so
its a start.

One thing I'm wondering though is why would an oral argument
matter? Paper says all and its full of information. Verbal
arguments (verbal anything for that matter) can't possibly
give all the information in complex matters. It would take
so long to go through all that info in those arguments. In
my mind what shes asking here is the lawyers to debate like
high school... which is ridiculous. Who is a better debater?
Is that really what she wants?
In my opinion, shes got the words in front of her in those
briefs. I would hate for her to make the wrong decision because a lawyer blanked
or made a mistake in wording for 3
seconds while trying to explain something that's already
better thought out on paper. With the documents their is
time to think clearly, correct, and revise certain thoughts.
All a verbal argument will do is take those clear thoughts
and replace them with a worse version of what you already
By the way, its a billion dollars. If I were a
probably make some time for that even if I was
overburdened.... I wonder how big the usual cases are that
are overburdening her are? (I'm not a judge though, so I
guess I cant be that hard on her without knowing)

[ Reply to This | # ]

Maybe the judge is trying to put things in order
Authored by: Anonymous on Friday, November 09 2012 @ 09:05 AM EST
Maybe she wants to figure out if what Hogan did meets the legal threshold for
being really, really bad.

If it didn't, no harm, no foul, and maybe what Apple knew when is practically

But if it did, then if Apple knew and didn't disclose, that might be double
extra ungood for Apple.

[ Reply to This | # ]

What Judge Koh doesn't mention.
Authored by: rsteinmetz70112 on Friday, November 09 2012 @ 10:38 AM EST
She doesn't mention Hogan and other juror's statements that extraneous materials
were introduced into the deliberations by Hogan.

Rsteinmetz - IANAL therefore my opinions are illegal.

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

[ Reply to This | # ]

Why only voir dire issues
Authored by: rao on Friday, November 09 2012 @ 10:54 AM EST

Shouldn't the content of his interviews since the trial ended be part of the misconduct evidence. He certainly has not hid the fact that he acted as an "expert witness" for Apple in the jury room. He explained to his fellow jury members how copyright law works. He convinced them that the prior art evidence didn't count because it did not run on an iphone.

[ Reply to This | # ]

Expedited briefing for this motion?
Authored by: Anonymous on Friday, November 09 2012 @ 11:31 AM EST
Some of the motions Samsung filed requested expedited briefing where Apple's
opposition timeframe was reduced and the reply was waived. Was that the case
for this particular motion? Is there no reply simply because Samsung waived it
at the time the originating motion was filed?

whitleych not logged in.

[ Reply to This | # ]

Regardless of when known
Authored by: Anonymous on Friday, November 09 2012 @ 01:27 PM EST
The fact is that jurist used personal knowledge (incorrect at that) to lead the
rest of the jury.
It should not matter who knew what when. He clearly violated his duty and
tainted the jury verdict.

Squabling over his motive and wether his motive was hidden or not is second and
third level points. That really matter only as to the personal consequnces for
the jurist.

As far as the main thread of trial is concerned there are two issues
a) did the jurist violate their duty
b) was one side or the other backstopping the jury verdict with knowledge that
the jurist was biased
Even those two issues should be looked at seperatly.

[ Reply to This | # ]

Some thoughts on the order of things
Authored by: nutmeg on Friday, November 09 2012 @ 01:27 PM EST
Is there any reason Samsung cannot file their reply between now and 6th
December? One possible interpretation of the judge's order is that she
sees that there is something to this, and wants to ask Apple questions of
her own (or hear more of their response to Samsung's if procedure
prevents her from asking directly). Since Apple's last filing is now in, she
may have no need to wait for Samsung to reply before ordering oral
argument, so long as Samsung get to file their final reply prior to that
argument being heard.

With the holiday season approaching, it could be that her schedule is
getting crowded, and she doesn't want to wait for Samsung's reply if
doing so risks missing the few windows she does have left. Rather than
have this issue drag on and on, she may feel it is best get it over and
done with, produce her decision later in December and enjoy the holidays
without having this in the back of her mind.

OK, so this is quite speculative, but the first question still stands - can
Samsung still file a reply before oral argument is heard?

perl < /dev/random # Try something new today

[ Reply to This | # ]

Juror Misconduct - Nightmare issue for Apple
Authored by: webster on Friday, November 09 2012 @ 04:01 PM EST

1. Was withholding the Seagate case misconduct? If so, was it serious enough
to vacate the verdict? Apple says no and no. But that was not their decision
to make. The Judge wanted to know about the case. That is why she asked in
voir dire. Once Apple learned of it, they usurped the Court's prerogative.
Apple held back for the same reason Velvin did --to get Samsung! What other
reason could there be?

2. Suppose Velvin wasn't the foreman and said nothing after the verdict. Would
withholding Seagate be then considered material? If it were a case against
McDonald's, it might be immaterial. But this case, against practically the same
party, combined with the desire to conceal, it is grossly material!

3. PJ talks of a high bar to establish juror misconduct. The number of
problems and their severity vaults this situation up to that bar. Only the
Judge can get it over. She is going to have to tamper with that verdict to
sustain it.

4. Apple's waiver arguments only aggravate their problem. You can't waive
something you don't know about. Samsung can't waive misconduct they did not
know about. Apple lawyers can't hold back juror misconduct, or the appearance
of such, as officers of the court. If Apple knew before deliberations, they
could have informed the judge and avoided all these problems. Velvin's sleight
may have got him past the Court's voir dire, but Apple's acquiescence in the lie
legally stains the verdict. The sooner Apple knew of Velvin and Seagate, the
more furious the Judge is gonna be.

4. The truth is out there and it is nailed down. There are too many lawyers and
their spouses involved on Apple's side to fudge on when they knew. One wonders
if they thoughtlessly whispered this Velvin advantage about hiding their mirth
from the Samsung side while never once thinking it might be proper to tell the
Judge she was lied to. Apparently patent litigation is no place for qualms.



[ Reply to This | # ]

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