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Apple v. Samsung I: Case Management Statement, Hearing Aug. 21 ~pj Updated
Thursday, August 15 2013 @ 01:34 PM EDT

There will be a hearing in Apple v. Samsung I in Judge Lucy Koh's courtroom, Courtroom 8 on the 4th floor, on August 21 at 2:00 PM, so if any of you stalwarts can attend, that would be fabulous. You don't even have to wake up early.

What's it about? Didn't they just have a case management hearing in April? Why yes. Yes, they did, but there have been "progress and changes" since, according to the parties' Joint Case Management Statement [PDF], which fills us in on the details. Both parties would like some changes since the last case management hearing. Here's the last joint case management statement, back in April. And the judge's order on April 30 was to go forward immediately with the damages trial, unless certain things happened in the USPTO reexaminations of Apple's patents at issue. Some of those things have almost happened, and there are other quirks, so some changes are being requested.

The real core issue is Samsung's '381 motion, asking for a new trial on Apple's '381 patent based on newly discovered evidence or for entry of judgment on liability. Apple Opposes with a capital O. It now wants another chance to file a sur-reply [PDF], which Samsung opposes [PDF], claiming that "Apple identifies no 'new' arguments Samsung raised in its reply that were not responsive to arguments in Apple’s opposition." The parties have been told that this motion wasn't on the calendar yet, but that they should be prepared to argue it on August 21. There is also the fact that the USPTO has found all relevant claims in the '915 patent invalid in a final office action. There can be more to come on that, but how does it impact the damages trial is the question?

And that is why we really should be there to hear it, if any of you can arrange your affairs to get there and be our eyes and ears. Samsung is telling the court that "Apple is attempting to 'sandbag' Samsung and obtain an unfair tactical advantage" by various proposals on how to go forward and by refusing to seriously meet and confer with Samsung. For example, Apple wants the judge to restrict the parties to the same exhibits used at the first trial. But that's not really fair in Samsung's eyes, because since that first trial, Apple has said things to the USPTO that conflict with what they said about the '381 and '915 patents at that trial:

Samsung does not believe the Court should limit the parties to the same exhibits disclosed prior to the first trial. For example, Apple has made numerous admissions to the USPTO subsequent to the first trial that directly contradict its arguments concerning the scope of the ’381 and ’915 patents. Apple should not be permitted to tell the Patent Office one thing and the new jury another. Samsung should be able to put this new evidence before the jury. Doing so would raise no issues concerning inconsistent appellate records because liability issues are not being retried and this damages trial will have its own separate record. Rather, the trial should be held based on an evidentiary record as it exists at the time of the new trial.
If you can go, email me please and I'll tell you more.

[Update: We still need a volunteer.]

Jump To Comments

The filings since we last looked in:

07/29/2013 - 2350 - Order by Hon. Lucy H. Koh granting 2274 Motion to Intervene, granting-in-part and denying-in-part Motion to Seal.(lhklc3, COURT STAFF) (Filed on 7/29/2013) (Entered: 07/29/2013)

07/29/2013 - 2351 - Declaration of Hoshin Lee in Support of 2345 Administrative Motion to File Under Seal Apples Motion To Seal Regarding Apples Opposition To Samsungs Motion For New Trial Regarding 381 Patent Pursuant To Rule 59 Based On Newly Discovered Evidence Or, Alternatively, For Entry Of Judgment On Liab Declaration of Hoshin Lee in Support of Apple's Administrative Motion to File Documents Under Seal filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Related document(s) 2345 ) (Maroulis, Victoria) (Filed on 7/29/2013) (Entered: 07/29/2013)

07/29/2013 - 2352 - Administrative Motion to File Under Seal Samsung's Reply in Support of Motion for New Trial Regarding '381 Patent Pursuant to Fed. R. Civ. P. 59 Based on Newly Discovered Evidence or, Alternatively, for Entry of Judgment on Liability filed by Samsung Electronics Co. Ltd.. (Attachments: # 1 Trac Declaration, # 2 Proposed Order, # 3 Reply Brief, # 4 van Dam Supplemental Declaration, # 5 Exhibit 1, # 6 Exhibit 2)(Maroulis, Victoria) (Filed on 7/29/2013) (Entered: 07/29/2013)

07/31/2013 - 2353 - OPPOSITION to ( 2344 Administrative Motion to File Under Seal Apples Motion To Seal Regarding Apple Inc.s Motion To Modify April 29, 2013, Case Management Order Excluding Evidence Of Certain Infuse 4G Sales Or, In The Alternative, For Leave To Seek Reconsideration Of T ) Samsung's Opposition to Apple Inc.'s Motion to Modify April 29, 2013 Case Management Order Excluding Evidence of Certain Infuse 4G Sales or, in the Alternative, for Leave to Seek Reconsideration of that Order and to Clarify that the Order Applied Solely to the Infuse 4G filed by Samsung Electronics Co. Ltd.. (Attachments: # 1 Becher Declaration, # 2 Exhibit A)(Maroulis, Victoria) (Filed on 7/31/2013) Modified on 8/1/2013 (dhmS, COURT STAFF). (Entered: 07/31/2013)

07/31/2013 - 2354 - Proposed Order re 2353 Opposition/Response to Motion,, Proposed Order Denying Apple's Motion to Modify April 29, 2013 Case Management Order by Samsung Electronics Co. Ltd.. (Maroulis, Victoria) (Filed on 7/31/2013) (Entered: 08/01/2013)

08/02/2013 - 2355 - MOTION to Stay re 2350 Order on Motion to Intervene Unopposed Motion to Stay Effect of July 29, 2013 Order (Dkt. 2350) filed by Apple Inc.. Responses due by 8/16/2013. Replies due by 8/23/2013. (Attachments: # 1 Declaration of Mark D. Selwyn, # 2 Exhibit A, # 3 Exhibit B, # 4 Proposed Order)(Selwyn, Mark) (Filed on 8/2/2013) (Entered: 08/02/2013)

08/07/2013 - 2356 - REPLY MEMORANDUM in Support of (re 2343 MOTION To Modify April 29, 2013, Case Management Order Excluding Evidence Of Certain Infuse 4G Sales Or, In The Alternative, For Leave To Seek Reconsideration Of That Order, And To Clarify That The Order Applied Solely To The ) filed by Apple Inc.. (McElhinny, Harold) (Filed on 8/7/2013) Modified text on 8/8/2013 (dhmS, COURT STAFF). (Entered: 08/07/2013)

08/08/2013 - 2357 - Administrative Motion to File Under Seal filed by Apple Inc.. (Attachments: # 1 Public Redacted Version - Apple's Surreply to Samsung's Motion for New Trial Regarding '381 Patent Pursuant to Rule 59 Based on "Newly Discovered Evidence" or, Alternatively, for Entry of Judgment on Liability, # 2 Public Redacted Version - Balakrishnan Declaration, # 3 Exhibit A to Balakrishnan Declaration (Public Version), # 4 Exhibit B to Balakrishnan Declaration (Public Version))(McElhinny, Harold) (Filed on 8/8/2013) (Entered: 08/08/2013)

08/08/2013 - 2358 - MOTION for Leave to File a Surreply to Samsung's Motion for New Trial Regarding '381 Patent Pursuant to Rule 59 Based on "Newly Discovered Evidence" or, Alternatively, for Entry of Judgment on Liability filed by Apple Inc.. (Attachments: # 1 Declaration of Nathan Sabri, # 2 Proposed Order)(McElhinny, Harold) (Filed on 8/8/2013) (Entered: 08/08/2013)

08/08/2013 - 2359 - CERTIFICATE OF SERVICE by Apple Inc. (McElhinny, Harold) (Filed on 8/8/2013) (Entered: 08/08/2013)

2360 - Filed & Entered: 08/10/2013
OPPOSITION to ( [2358] MOTION for Leave to File a Surreply to Samsung's Motion for New Trial Regarding '381 Patent Pursuant to Rule 59 Based on "Newly Discovered Evidence" or, Alternatively, for Entry of Judgment on Liability ) filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Proposed Order Denying Apple's Motion For Leave to File a Surreply)(Maroulis, Victoria) (Filed on 8/10/2013) Modified text on 8/12/2013 (dhmS, COURT STAFF).

2361 - Filed & Entered: 08/10/2013
Administrative Motion to File Under Seal Samsung's Opposition to Apple's Motion For Leave to File a Surreply filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Declaration of Joby Martin In Support of Samsung's Administrative Motion to File Documents Under Seal, # (2) Proposed Order)(Maroulis, Victoria) (Filed on 8/10/2013)

08/14/2013 - 2362 - CASE MANAGEMENT STATEMENT filed by Apple Inc., Samsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(McElhinny, Harold) (Filed on 8/14/2013) (Entered: 08/14/2013)

Yes, that's filing number 2,362 in this eternal litigation. And you thought *SCO* dragged on and on like molasses. At least these guys know how to litigate real issues, and that's why, to me, it's never boring. We are watching two sides, both very skilled at what they do, jockeying for positions that they hope will benefit their clients. Within limits, that's what lawyers are supposed to do. But if you recall, both sides were sanctioned for bad behavior, or at least over-the-top tactics before the first trial, so the question here for the judge will be, are they, one or both, doing that again?

And it all matters. As you know, the reason there is a need for a new damages trial is because the jury did its math wrong. So that has to be fixed. But Samsung believes it got the infringement issues wrong too, and it's now a race between the USPTO reexamination process and Judge Koh's scheduling. Apple, naturally, wants to go forward immediately, because it's to its advantage to get a large damages award, even if on patents that are very questionable. Like Apple cares about that. Not.

Samsung would like to slow this down so it can get a clear indication from the USPTO as to whether or not these goofy patents are even valid. Why, it wonders, should Apple be awarded damages on invalid patents?

You may wonder about that yourself. The answer is simple. It's how the US patent system works currently. Or doesn't work, depending on whether you are Apple or are the rest of us. People get paid for lousy patents every day. That's one serious problem the US patent system faces, and it's why you hear so many calls to fix it. But Apple would like to benefit from the unfairness before anyone has a chance to fix it.

The disputes that are left include one regarding Apple's desire to use Julie Davis as substitute damages expert. Apple's expert, Terry Musika, died, which can happen in molasses litigation. So they are deposing her and rebutting and there's a briefing schedule on all that. There are administative motions on deck, too, and in addition to the '381 motion, there are two other main issues:

Apple’s motion regarding Infuse 4G first sale dates: Apple filed a Motion to Modify the April 29, 2013, Case Management Order Excluding Evidence Of Certain Infuse 4G Sales (Dkt. No. 2343). Samsung has opposed (Dkt. No. 2353). The motion is set for hearing on August 21, at the same time as the CMC.

Developments with the USPTO: Apple filed a Statement of Recent Decision Regarding Confirmation of Claim 19 of U.S. Patent No. 7,469,381 (Dkt. No. 2323). Samsung filed a Statement of Recent Decision Regarding Final Office Action by the USPTO Rejecting U.S. 20 Patent No. 7,844,915 (Dkt. No. 2349).

All of this, just to remind you, is in preparation for a damages trial, to decide how much Samsung owes Apple, after the jury got it so wrong. I'm sure you can figure out why Samsung would prefer a new trial on liability on the '381 patent first, rather than just going to damages on a patent that they may not have infringed in the first place, according to new evidence, they claim. This new case management hearing is to try to resolve some of the issues with the hope that the trial can be simplified.

Each side presents how it wants things done from here on out. First Apple, beginning on page 3 of the PDF:

II. APPLE’S PROPOSALS FOR CASE MANAGEMENT AND TRIAL PREPARATION

On April 29, 2013, at the close of the last Case Management Conference in this case, the Court set August 21 as the date of the next CMC, with the express consent of Samsung’s counsel. The Court stated:

But at this point, you know, August [21], you may be able to flag some issues that we can resolve that will help you in preparing...(April 29 Hearing Tr. 88: 1-3.)
In this Case Management Statement, Apple has identified a number of the issues that have arisen as it plans for the November trial, in the hope of getting guidance from the Court. Many of these issues arose during the preparation of Apple’s Expert Report and were specifically identified to Samsung no later than June 24, when that report was served. Rather than attempting to meet and confer or to open any dialogue, Samsung moved to continue the trial date. (Dkt. No. 2326-4.)

Apple sent a proposed Neutral Statement on infringement and validity to Samsung on August 7 in order to start the meet-and-confer process on that statement. Apple sent a draft joint CMC statement to Samsung on August 9 in order to start the meet-and-confer process on that statement. As of August 9, Samsung had made no proposals of any kind to Apple or done anything to initiate the meet and confer process on any trial preparation issues. Last Sunday, August 11, Samsung responded not by meeting and conferring on any of the issues Apple raised, but simply by attacking Apple for trying to begin the meet and confer process. Samsung claims Apple has made no effort to meet and confer, but this is plainly untrue—Apple made two overtures, and Samsung has refused to respond.

Now, having refused to meet and confer, Samsung objects to discussing any of these subjects at a Case Management Conference, because its lead counsel has a conflict — which apparently existed at the time Samsung agreed to the CMC date.

It should be obvious that both parties have already begun to prepare for the trial. Issues have arisen, been identified, and even been briefed that need to be discussed with the Court. It will not be helpful to postpone these discussions until October.

Presenting infringement and validity to jury/neutral statement: The April 29, 2013, Case Management Order directed the parties to meet and confer regarding how to present information regarding infringement and validity to the jury. (Dkt. No. 2316 at 3.) Apple proposes that the Court read a neutral statement to the jury at the outset of the case to provide information about the prior trial and the nature of the new trial. This neutral statement would be in the nature of the type of preliminary instruction that this Court read to the jury at the start of the liability trial, explaining the nature of the proceeding. Among other things, the neutral statement would inform the jury that infringement and validity have been established and are not to be revisited.

As noted above, Apple provided Samsung with a draft neutral statement on August 7, 2013, to begin the meet-and-confer process on such a statement. For reference, the draft that Apple provided to Samsung is attached as Exhibit A. Samsung’s assertion that Apple is somehow “attempt[ing] to circumvent the meet and confer process” is inconsistent with the facts: Apple sent Samsung a first draft of a neutral statement a full week before the August 21 CMC, informed Samsung it wished to begin the meet-and-confer process, and proposed that the parties begin discussing the concept with the Court at the CMC.

Apple believes that the neutral statement also should inform the jury that the Court has determined the dates on which Samsung had notice of its infringement of each patent, and therefore the dates when damages can start running on each patent. Those dates would be included in the juror notebooks.

Disclosures of witnesses and deposition designations: The April 29, 2013, Case Management Order authorized Apple to substitute a new damages expert for Terry Musika. Apart from that substitution, Apple understands that the only witnesses and deposition designations that may be used at the new trial are those that were listed in the parties’ final pretrial submissions filed on July 23, 2012. That is, Samsung is limited to the witnesses and designations listed in Dkt. Nos. 1278 (excluding Appendix A, which was struck by the Court (see Dkt. No. 1293) and 1284), and Apple is limited to the witnesses and designations listed in Dkt. Nos. 1287 and 1290. Apple further understands that the witnesses’ testimony must be within the scope of the topics disclosed in those submissions.

Given that even those final witness and designation lists were lengthy, to facilitate the parties’ and Court’s preparation for trial, including the efficient resolution of objections, Apple proposes that the parties exchange witness lists and deposition designations well in advance of trial. To that end, Apple proposes that no later than September 23, 2013, the parties exchange lists of the witnesses and deposition testimony they intend to use at trial, other than solely for impeachment or rebuttal, together with a brief statement describing the substance of the testimony to be given. The parties would address any objections to the listed witnesses and deposition designations in connection with meeting and conferring regarding a Joint Pretrial Statement. The parties would include their final witness lists and deposition designations in the Joint Pretrial Statement to be filed on October 3, 2013 (14 days before the scheduled pretrial conference). Apple seeks the Court’s direction as to whether an earlier date for filing the Joint Pretrial Statement, and corresponding earlier dates for the parties to exchange witness lists, would assist the Court.

Samsung’s suggestion that the parties should be free to designate “any previously disclosed witness” is unreasonable and inconsistent with the Court’s directive, “You’ll have your same witnesses from last time.” (April 29 Hearing Tr. at 79:12-13.) Samsung’s pool of potential witnesses would apparently include not only the 50 live witnesses and 45 deposition witnesses Samsung disclosed, but the additional 112 witnesses it improperly disclosed in an appendix that the Court struck. (Dkt. No. 1293.) This prejudices Apple, who would be limited to the disclosure it served in compliance with the Court’s order, and rewards Samsung for ignoring the Court’s order. (Id. at 1 (“Samsung’s Appendix A is contrary to the letter and spirit of the Court’s Case Management Order.”).)

Samsung’s reference to R. Sukumar is grossly misleading. Samsung did not properly disclose Dr. Sukumar as a witness in the first trial—he was listed on Samsung’s improper Appendix A. Nevertheless, Samsung requested the Court’s permission to call Dr. Sukumar in Samsung’s case on its own patents. The Court found that exclusion of Dr. Sukumar’s survey would be unduly prejudicial to Samsung. (Dkt. No. 1749 at 3-4.) Dr. Sukumar testified for three minutes on direct examination solely regarding his survey and valuation of Samsung’s patents. (Trial Tr. at 3092:2-3095:15.) The issues that Dr. Sukumar discussed, which the Court believed it would have been unduly prejudicial to exclude from the first trial, are not present in this trial. Exhibit procedure: Apple believes that the Court should (1) limit the parties to the same exhibits disclosed in the parties’ July 2012 pretrial submissions; and (2) before trial, admit exhibits already admitted in connection with the first trial to avoid unnecessary argument and process regarding exhibits actually submitted to the first jury.

Samsung’s proposal that the parties should have a trial based on an entirely new set of exhibits is unwarranted and inconsistent with the Court’s directive. Samsung’s assertion that it needs new exhibits to respond to Julie Davis is also incorrect, as Ms. Davis’s opinion is strictly limited by the Court’s order to the methodologies and data used by Apple’s first expert, Terry Musika. 6 Time allocation: Apple believes the trial time allotted by the Court should be split evenly between the parties. Assuming November 12, 2013, is taken up entirely by jury selection, this would leave 26 hours of trial time (6.5 hours per day on November 13, 14, 15, and 18). Apple therefore proposes that each party be allotted 13 hours of trial time, including time for opening statements and closing arguments.

Motions in limine: Apple is mindful that the Court’s prior rulings on the parties’ motion in limine remain in effect and may not be relitigated. It is possible, however, that new issues may arise in connection with the new trial. Accordingly, Apple proposes that the Court permit the parties to file motions in limine solely on issues that are not controlled by the Court’s prior rulings. Apple proposes that any motions in limine be filed on October 3, and oppositions be filed on October 7 (14 days and 10 days before the scheduled pretrial conference).

And here's Samsung's, beginning on page 7 of the PDF:
III. SAMSUNG’S STATEMENT REGARDING APPLE’S PROPOSALS FOR CASE
MANAGEMENT AND TRIAL PREPARATION

Samsung has requested relief from the current schedule in its pending Administrative Motion for Relief, as well as in its Motion for a New Trial Regarding ’381 Patent. In the event the Court wishes to hear further case management proposals for the current schedule, Samsung believes the majority of the issues Apple requests the Court to address are unripe and motivated by Apple’s improper attempts to seek tactical advantage.

On August 9, 2013, just three business days before the filing deadline, Apple served Samsung with its draft portion of this Joint Statement. Apple’s portion raises trial management issues and proposed deadlines that will affect the scope and substance of the new trial, as well as Samsung’s preparations for trial. In particular, Apple proposes limitations on witnesses, deposition designations, and trial exhibits that are clearly prejudicial to Samsung. Yet, Apple never notified Samsung it would raise these issues at the August 21 CMC, and made no effort to meet and confer with Samsung about them. Moreover, given the importance of these issues, Samsung’s lead counsel for the new trial, Bill Price, would appreciate the opportunity to discuss them with the Court. However, Mr. Price is heading into a trial and is not able to attend the August 21 CMC. Samsung requested that Apple agree to a brief continuance of the CMC, but Apple has indicated its lead counsel is unavailable for a six-week period encompassing all the potential alternative dates. Samsung also requested that the parties postpone discussion of Apple’s new issues with the Court, but Apple refused. See Exhibit B attached hereto.

Instead, Apple claimed that it had raised some of these issues in its portion of the April 22, 2013 Joint Statement Regarding Further Post-Trial Proceedings. See Exhibit B. But most of the issues it now raises and all of its proposed new deadlines were never mentioned on April 22, 2013. What is more, making vague proposals months before trial is scheduled and a Case Management Order is entered is not the same as meeting and conferring on specific proposals and deadlines. Apple next claims that the issues it now raises for the first time were disclosed in Julie Davis’s June 24, 2013 Expert Report. When pressed about where in Ms. Davis’s Report Apple had disclosed its specific proposals concerning trial logistics, Apple could only respond that Samsung’s Administrative Motion concerning Ms. Davis’s Report raised the issue of “whether trial witnesses will be recalled or whether, in the new trial, the prior testimony will be given by a damages expert,” and “whether previous trial exhibits need to be modified to reflect the smaller group of accused devices.” See Exhibit C. Neither of these issues have been raised by Apple for discussion at the CMC, and nowhere in Ms. Davis’s Report does she discuss the proposals that it has.

As a result of Apple’s tactics, Samsung will not have its lead trial counsel at the August CMC to address these issues, which are in any event unripe. Apple is attempting to “sandbag” Samsung and obtain an unfair tactical advantage. Apple’s tactics will also burden the Court with having to address disputes that could conceivably be resolved were Apple willing to discuss them. Samsung thus requests that the Court delay any decision on these issues until after Samsung has had the opportunity to properly consider them, the parties meet and confer, and Samsung’s lead trial counsel is available to address any disputes with the Court. Samsung has already indicated to Apple its willingness to meet and confer on these issues and to schedule a further case management conference in the event the parties are unable to agree.

Nonetheless, in the event the Court declines Samsung’s request, Samsung hereby offers its preliminary views on Apple’s new proposals:

Presenting infringement and validity to jury: The Court’s April 29, 2013 Case Management Order directed the parties to “meet and confer regarding how to present information regarding infringement and validity to the jury.” (Dkt. No. 2316 at 3:15-16.) On August 7, just one week before the deadline for this Statement, Apple served a purported “neutral” statement “[t]o start this meet-and-confer process.” See Exhibit B. The date set by the Case Management Order to address this issue is October 17, 2013, a date expressly agreed to by Apple at the last CMC.

In these circumstances, one would think that Samsung has ample time to consider Apple’s August 7 proposal and to meet and confer with Apple to attempt to formulate language acceptable to both sides. Yet, Apple now seeks to abridge Samsung’s time to consider Apple’s August proposal, circumvent the meet and confer process, and de facto amend the Case Management Order by raising the issue at the August 21 CMC. While Apple assures Samsung that it does not expect it to “finalize” its position by August 14, and that “the Court will want to know that the parties are in discussion,” this is belied by Apple’s proposed agenda item, below: “Address parties’ proposals regarding how infringement and validity should be presented to the jury via neutral statement or otherwise.” (Emphasis added.) Samsung is considering Apple’s proposal and is willing to meet and confer in the hopes of formulating common language. However, the Court should reject Apple’s attempt to circumvent the meet and confer process, gain an unfair advantage, and de facto amend the Case Management Order by advancing the discussion of issues on which there was already an agreed-upon timetable.

Disclosures of witnesses and deposition designations: Samsung believes that a limit on the total number of witnesses each side may designate and call at trial would be appropriate, but subject to such numerical limit, each side should be free to designate in pre-trial disclosures and call any previously disclosed witness. As Samsung indicated at the April 29, 2013 hearing, Apple is improperly attempting to prevent Samsung from being able to call witnesses – including Samsung’s survey expert, R. Sukumar, who was properly disclosed in Samsung’s July 7, 2012 witness list (Dkt. No. 1193-1) and testified at the earlier trial – on the pretext that they are disclosed on Appendix A of the July 23, 2012 version of Samsung’s witness list. Apple seeks to exploit Samsung’s good faith efforts to narrow its witness lists given the time constraints of the earlier trial by now excluding witnesses who pose no prejudice to Apple. The parties' final witness lists in the first trial were crafted to meet the Court’s 25-hour limit on both damages and liability testimony. Samsung would obviously have made very different choices had it known that it would be constrained by this final list at a new trial focused solely on damages and with additional time to present its damages case. Samsung’s proposal would obviate Apple’s purported concern about lengthy “witness and designation” lists, and will cause no prejudice because all of the witnesses have previously been disclosed. Samsung is willing to meet and confer with Apple to attempt to reach agreement on an appropriate number.

At the April 29 Case Management Conference, Apple agreed to a Pre-Trial Conference on October 17, 2013. Under Federal Rule of Civil Procedure 26(a)(3)(B), pre-trial disclosures are thus due on October 11, 2013. At no point during the April 29 Case Management Conference did Apple request early pre-trial disclosures, nor did it ever raise the issue with Samsung before servicing its portion of this Statement on August 9, 2013. Subject to the Court’s ruling on Samsung’s Administrative Motion for Relief from April 29, 2013 Case Management Order (Dkt. No. 2326), Samsung has been preparing for trial and scheduling various pre-trial preparations on the basis of the Federal Rules. To change this now, and order that Samsung must serve its pre-trial disclosures in just six weeks, would prejudice Samsung’s trial preparation. Moreover, the Court specifically chose a pre-trial conference date that would occur after the October 10, 2013 hearing. Indeed, it makes sense for pre-trial disclosures to be exchanged after the October 10 hearing on the parties’ motions to strike and any Samsung Daubert motion. That way, the parties can make final adjustments to their witness and exhibit lists in light of the Court’s guidance on the scope of damages expert testimony each side will be permitted to present.

Exhibit procedure: Samsung does not believe the Court should limit the parties to the same exhibits disclosed prior to the first trial. For example, Apple has made numerous admissions to the USPTO subsequent to the first trial that directly contradict its arguments concerning the scope of the ’381 and ’915 patents. Apple should not be permitted to tell the Patent Office one thing and the new jury another. Samsung should be able to put this new evidence before the jury. Doing so would raise no issues concerning inconsistent appellate records because liability issues are not being retried and this damages trial will have its own separate record. Rather, the trial should be held based on an evidentiary record as it exists at the time of the new trial.

In the event the Court declines to accept Samsung’s position, an exception should be made with respect to Ms. Davis. In light of Mr. Musika’s passing, Samsung consented to Apple’s substitution of a new damages expert for the new trial, Ms. Davis. However, Samsung obviously never had the opportunity to depose Ms. Davis before pre-trial exchanges leading up to the first trial. Therefore, Samsung never had the opportunity to designate exhibits that would be useful for cross-examination of Ms. Davis and rebuttal testimony in light of her specific background, the assignments she was given, and the work performed in reaching her opinions. Under Apple’s proposal, Samsung would not even be allowed to designate exhibits used during Ms. Davis’s deposition, which will give Apple adequate notice and cause no prejudice.

The Court should reject Apple’s proposal to admit exhibits simply because they were admitted at the first trial. Numerous exhibits admitted during the first trial – such as those directed to liability, willfulness and trade dress claims – will have no relevance to the new trial. The pre-trial process requires the parties to attempt to stipulate to the pre-admission of exhibits and Samsung is willing to meet and confer with Apple to reduce the scope of any disputes. However, ordering a blanket admission of numerous exhibits without regard to their relevance and potential prejudice would be highly prejudicial to Samsung.

Samsung proposes that remaining issues about exhibits be addressed in accordance with the usual pre-trial procedures before the Court’s scheduled Pre-Trial Conference on October 17, 2013.

Time allocation: Samsung believes that Apple’s assumption of only one day of jury selection is optimistic in light of the extensive media attention devoted to this case and the trial’s venue. Nonetheless, Samsung is amendable to dividing any remaining time equally between the parties.

Motions in limine: Samsung agrees that the parties should be permitted to file a limited number of motions in limine, and is willing to meet and confer with Apple concerning an appropriate number. However, depending on the number of motions, it is likely that Apple’s proposed briefing schedule – which leaves just four days for oppositions – is too compressed. Samsung proposes that the parties meet and confer concerning the number of such motions and thereafter attempt to agree on a more realistic briefing schedule.

Who cares about such minutia, you ask? The clients. Because how the judge rules can matter a lot in how a trial plays out. I'll give you an example. Remember at the first trial how each side was limited in how long they each had? Well, if one side has to cover 6 issues, let's say, at a trial and the other has to cover 12, you can see that the side with more issues is going to run out of time. In fact, Samsung did. If one side runs out of time, maybe it only gets to use most of its exhibits but not all the exhibits it placed on the list in anticipation of trial. If there is a second trial, and now there are only 5 instead of 12 issues, that party will want to cover what it couldn't cover in the first trial because it ran out of time and couldn't put a witness on the stand or had to rush through without reaching all the exhibits.

See how a small detail like how much time the parties will be granted at trial can have huge consequences?

So here are the parties' suggestions on what to address at the case management hearing:

V. PROPOSED AGENDAS FOR CMC

Samsung’s Proposed Agenda

1. Address the effect of the PTO’s recent actions on the new trial and expected timeline for resolution concerning the ’915 patent.

2. Address any questions by the Court concerning Samsung’s Administrative Motion for Relief from April 29, 2013 Case Management Order.

3. Argument on Samsung’s Motion for New Trial Regarding ’381 Patent Pursuant to Fed. R. Civ. P. 59 based on Newly Discovered Evidence or, Alternatively, for Entry of Judgment on Liability.

4. Argument on Apple’s Motion to Modify the April 29, 2013, Case Management Order Excluding Evidence Of Certain Infuse 4G Sales.

5. Address schedule for motions to strike and any Daubert motion from Samsung.

Apple’s Proposed Agenda
1. Address schedule for motions to strike and any 702 motion regarding Ms. Davis’s qualifications from Samsung.

2. Argument on Samsung’s ’381 motion (assuming motion was not heard at scheduled hearing date).

3. Argument on Apple’s Motion to Modify the April 29, 2013, Case Management Order Excluding Evidence Of Certain Infuse 4G Sales.

4. Address parties’ proposals regarding how infringement and validity should be presented to the jury via neutral statement or otherwise.

5. Address proposals regarding disclosures of witnesses and deposition designations.

6. Address proposals regarding motions in limine.

Apple mentions in number 2 that there was a scheduled hearing date for the '381 motion for today. But I gather somehow that's changed and it will be heard instead on the 21st.

  


Apple v. Samsung I: Case Management Statement, Hearing Aug. 21 ~pj Updated | 961 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here please
Authored by: jesse on Thursday, August 15 2013 @ 02:18 PM EDT
Thank you.

[ Reply to This | # ]

News Pick discussions
Authored by: jesse on Thursday, August 15 2013 @ 02:19 PM EDT
Thank you.

[ Reply to This | # ]

COMES document thread
Authored by: jesse on Thursday, August 15 2013 @ 02:20 PM EDT
Thank you for all the work.

[ Reply to This | # ]

Off topic discussions
Authored by: jesse on Thursday, August 15 2013 @ 02:21 PM EDT
Thank you.

[ Reply to This | # ]

Why rush if you want the trial simplified?
Authored by: tknarr on Thursday, August 15 2013 @ 02:25 PM EDT

If the judge wants to simplify things and reduce the workload, the sensible decision is to delay things for a bit. At worst the USPTO upholds the patents and there's no additional work. If the claims were narrowed, some of the basis for damages can be thrown out reducing what has to be argued at trial. And if the USPTO invalidates the patent entirely then the judge can just rule from the bench since there's no issues of fact left. And considering that the fact record from the USPTO indicates at the very least the claims will be narrowed, the only thing rushing to beat them to trial does is maximize the amount of material at trial. Objectively I'd delay a couple months, let the USPTO pare down my work while I deal with other cases, and with a bit of luck I'll be able to zero out the case entirely and punt the lot of them up to the appeals court to argue there.

But then we knew this.

[ Reply to This | # ]

parent comment just seems to be a clever way to inject spam
Authored by: nsomos on Friday, August 16 2013 @ 10:49 AM EDT
Of course if you want to pay someone to write essays for you,
then you might not consider the parent comment spam, but
useful advertising. It did take me longer to figure out
what it was, so I'll give them points for that.

[ Reply to This | # ]

Thank you for everything, PJ
Authored by: entre on Tuesday, August 20 2013 @ 02:55 AM EDT
This has been a tremendous effort!

[ Reply to This | # ]

Forced Exposure - Ending Groklaw
Authored by: Anonymous on Tuesday, August 20 2013 @ 04:09 AM EDT
There's no place for discussion on the Forced Exposure essay,
so this is here.

[ Reply to This | # ]

Last Post ?
Authored by: AntiFUD on Tuesday, August 20 2013 @ 05:29 AM EDT
Having just read PJ's last article "Forced Disclosure", I would just
like to say a big THANK YOU to PJ and all her helpers.

I think I have read 100 percent of all the articles posted since I joined in
2005, and probably read 90 percent of all the comments. I am left with 2
unanswerable questions:

Where am I going to get my fix now?

Being basically retired, what am I going to do with all those latenight waking
hours - often into the wee small hours - since I find it difficult to play golf
or go sailing in the dark?

I feel as though some part of me has just died, nevertheless I respect PJ's
privacy, and I wish her all the best in her future endeavors.

With love ...

---
IANAL - Free to Fight FUD - "to this very day"

[ Reply to This | # ]

Thanks for everything...buy Groklaw is essential exactly because the current situation
Authored by: Anonymous on Tuesday, August 20 2013 @ 06:07 AM EDT
Email without encrypted content has never been a safe communication method.
Those part of the Growlaw that require anonymously should of course use such and
not trust the authorities to not abuse their position. Email as a method of
communication can be used in low sensity cases.

I think that Groklaw is an essential voice at this time exactly because the way
lawenforcement does abusive things. It does not matter if it is patents or
surveillence. The tech community need strong voices that object to what the
lawyers and lawmakers get wrong. Growklaw is such a voice.

[ Reply to This | # ]

The Soviet Union
Authored by: Anonymous on Tuesday, August 20 2013 @ 08:51 AM EDT
Our comrades from the cold war days used to conduct political
speech under a malevolent microscope. Let's ask them for some
advice.

[ Reply to This | # ]

  • Samizdat - Authored by: Anonymous on Tuesday, August 20 2013 @ 11:17 AM EDT
Groklaw last article
Authored by: feldegast on Tuesday, August 20 2013 @ 09:33 AM EDT
As a long time Groklaw contributor i am sadened by the closure of groklaw, it has been an almost daily part of my life for almost the whole time groklaw existed.

Those who might want to contact me, i frequent irc.fdfnet.net in the channel #groklaw (among other channels), message me (Feldegast) if you want to contact me. feel free to visit.

you can use htt p://chat.mibbit.com/? server=irc.fdfnet.net&channel=%23groklaw if you do not have an IRC program

Hopefully we might be able to keep some of the community together.

---
IANAL
My posts are ©2004-2013 and released under the Creative Commons License Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

On shutting down Groklaw. all activity has all ready been recorded.
Authored by: Anonymous on Tuesday, August 20 2013 @ 10:08 AM EDT
That is locking and burning down the barn after the horse has all ready been
scanned by the perps.
Sorry to hear about your New York apt break in.
The worst series break in's that I ever experienced was a gang of bored vwey
well of teens. Whole neighborhoods were robbed. Only one or two items were
removed from each house. One home owner had someone install six streetlights on
his property. The light was so bright a neighbor three blocks away sat the gang
breaking into a house and called the police.
Shed some light on these cockroaches, Do not close up.

[ Reply to This | # ]

    I am in tears...
    Authored by: brooker on Tuesday, August 20 2013 @ 10:19 AM EDT
    It was quite a shock this morning as I opened Groklaw for my morning coffee-time
    read - which has happened every day since forever. I say 'forever' because I
    honestly don't remember what life on the Internet was like without Groklaw.

    As a regular member (if a rather quiet one) I've always felt that pj was a good
    friend to all of us as a group, but also to each of us, individually, who worked
    with her on projects.

    I know I am not alone in saying that I have learned SO much from pj and Groklaw
    and the incredibly smart Groklawians who post so much amazing, and wonderfully
    useful information here. You are all greatly admired by this little old lady.

    It frightens me to read that pj has shut this wonderful and valuable site down.
    She wouldn't do this lightly. I hope she knows how much she is respected and
    loved by all of us. Her safety is foremost in our minds.

    I know I would not be the same person today without these wonderful years
    hanging out on Groklaw. Heck, I'd probably still be using Windows 98se and AOL
    or something horrible like that. lol (Just kidding)

    You are in my heart pj, and I have several grandkids that read here too, so your
    impact on your readers has indeed been profound. I have always wished I could
    attain even a small bit of the cleverness and eloquence that you have in massive
    amounts. What an inspiration you are.

    All I can say now is, Pamela, you are welcome at my house ANY time. I have
    plenty of tea (white, black, green, camomile and mint), bring your cat. We'll
    have tea and chat.

    Take good care of yourself. And above all, Thank you.
    brooker



    [ Reply to This | # ]

    Final Groklaw post?
    Authored by: albert on Tuesday, August 20 2013 @ 10:40 AM EDT
    I certainly hope not.

    There is no better place for fact finding in law cases regarding s/w patents and
    FOSS, and I see little hope for such a place in the future.

    Am I selfish in wanting Groklaw to continue? Yes, I am. Will it stop me from
    asking PJ to continue? No, it won't.

    PJ, you've certainly made your mark in history, and if you must move on, so be
    it. I think your motivations for starting Groklaw are much deeper than that, and
    that's just the kind of thinking that we need right now. Our democracy, such as
    it is, is in a crisis state. I guess we always kinda knew that state
    surveillance is far reaching; more far reaching than we hoped it would ever be.
    We know we live in a plutocracy where money talks, and truth walks. The fight
    must be fought. As long as laws and gov't actions violate the Constitution, we
    have a chance. Anti-government and pro-government liberals and conservatives are
    beginning to wake up. They are beginning to realize that we are fighting
    bogeymen under our beds, and that more spying doesn't make us safer.

    Yet, though we discuss such issues here, that's not the main purpose of Groklaw.
    I would not complain if those subjects were off the table.

    PJ, what would it take to make you continue? You have the best tech people at
    your disposal to help you with your personal security. You have the best lawyers
    in press freedom and First Amendment issues. You have us.

    I don't want to say it, but the timing makes me think you've been threatened in
    some way. Call me paranoid, or whatever, but that's how I feel.

    Best Wishes & Regards,
    albert

    [ Reply to This | # ]

    Re: Your resignation
    Authored by: coolmos on Tuesday, August 20 2013 @ 10:49 AM EDT
    Dear PJ,

    I'm sorry to inform you your request for resignation is
    denied.

    You are too valuable for the company to let go.

    Regards,

    Management.

    All joking aside, I understand you feel violated. We all do.
    But we shouldn't give in. Stand up to the bullies.

    You are one of the few lighthouses in the darkness. All you
    need is a brighter bulb now. Put on your red dress and go
    after them with us.

    With love and admiration,

    coolmos

    [ Reply to This | # ]

    Thank you PJ, and best wishes to you
    Authored by: mvs_tomm on Tuesday, August 20 2013 @ 12:17 PM EDT
    PJ,

    I am saddened to read that you are shutting down Groklaw. Reading your post, I
    understand. Your humanity is what made Groklaw great, and now that you feel
    that you are losing your humanity, I know that this is the right decision.

    My sadness is not only for me, but for you as well. I could feel your sadness
    as I read your final story. And I can feel it in others who have written
    comments about your decision.

    As I ponder what will happen without your guiding light to help us to see, I
    can't help but wonder.

    And I can't help but think of another whose light has been snuffed out. Things
    became hopeless for Aaron Swartz, too. He couldn't just stop doing what he did,
    and his death has inspired many to try to make things better.

    Edward Snowden couldn't stand by and watch the things that he saw, so he
    sacrificed himself in a very courageous way.

    PJ, I know that you will miss doing Groklaw. I could see your passion in
    everything that you wrote. I wish you the best in the coming days and weeks.
    No doubt this will be a difficult transition for you.

    I hope that it is a much easier transition than what I would expect after you
    have devoted so much of your life to Groklaw. You have done far more for the
    world than most people can even dream of. Please don't be swayed by our greed
    for more of you.

    I love you, PJ. May you live in peace and happiness.

    Tom Marchant

    [ Reply to This | # ]

    i'll volinteer and ill even host groklaw.net in canada
    Authored by: Anonymous on Tuesday, August 20 2013 @ 12:59 PM EDT
    as president of the united hackers association and a person
    whose been at this site since day one i do not wish to see
    you close nor give up your freedom of press.

    email me at chronoss2008@teksavvy.com

    i have a 100 megabit quebec server i should be able to get
    you hosted on free of charge....

    call it your friends to the north that care about privacy
    and true security...the security of the people.

    [ Reply to This | # ]

    Terrible Loss - Apple v. Samsung I: Case Management Statement, Hearing Aug. 21 ~pj Updated
    Authored by: Anonymous on Tuesday, August 20 2013 @ 01:06 PM EDT
    It was with deep sadness that I read PJ's post.

    Violation of privacy destroys the first ammendment. Until Congress
    fixes this, or the supreme court steps in, we are stuck.

    [ Reply to This | # ]

    Pretty soon, privacy will be illegal
    Authored by: Anonymous on Tuesday, August 20 2013 @ 01:36 PM EDT
    No need for privacy. What you got to hide, son?

    [ Reply to This | # ]

    Bad timing.
    Authored by: Anonymous on Tuesday, August 20 2013 @ 01:55 PM EDT

    I've been working up to posting this for weeks.

    I don't really want to post it now but I may never get another chance.

    I'm not ready so the link will be to nowhere till at least tomorrow.

    Apologies in advance for any offence but I won't take the chance that I miss the opportunity to reach members of the Groklaw community that I may never be in contact with again.

    ------

    I'm hoping you guys will be able to help me out.

    I've been silently standing on the sidelines here almost since the very beginning. I, like you, feel very deeply that what we have been watching happen here is an outrage.

    Watching monopolies desperately trying to destroy the open-source world like a bunch of petulant toddlers makes me want to bang my fists and smash things with rage. (Yes I do see the irony there.)

    I have, for a long time, felt powerless to do anything about it but I have come to a decision to make a stand.

    The real problem is that we lack the sort of wealth and influence that the corporate elite possess. We are forced to contend with them on a battlefield of their choosing with little or no resources.

    I think it is about time we stopped putting up with that and started fighting fire with fire.

    If we want to win this war we need to acquire more money and influence than our opponents and, ludicrous as that idea seems on the surface, I don't think it's something that is beyond the realm of possibility.

    You see the thing is that the businesses that we face here are either monopolists or practising outmoded models, they are desperately trying to hang on to a way of doing business that has been out-evolved. They look on the surface like the 800lb Gorillas but in reality they are more like Giant Pandas. They are tottering on the edge of extinction because they are too myopic to realize that their ecological niche has gone or that they are in the process of destroying it with their own stupid greed.

    So here's what I plan to do and what I think I can achieve given a bit of help.

    I plan to buy Nokia.

    I think Nokia could easily be re-organized into a vastly profitable enterprise and its enormous collection of patents could be used to beat the snot out of the trolls and proprietary monopolists. I think a licensing scheme similar to the GPL could be created that forced everyone in the mobile space to 'share and share alike' and to compete on merit rather than in litigation.

    I want to create something that is inherently, by its very nature, what Google promised to be but does not seem to be able to execute on.

    I don't want to go on and on here, so I have laid out my ideas in a blog that I have created for the purpose and I'm inviting anyone who is interested to go over there, read what I have to say and to give me a good kicking.

    This forum represents some of the most insightful and best qualified people in the world to understand what is really going on in our economy here and therefore some of the best motivated to do something about it. I can't think of anyone else I would rather have criticizing and critiquing my plans and hopefully together we can find a way to build a better future, free of the sort of destructive corporate cancer that seems to be sucking the life out of our economies.

    Thanks in advance for any help that any of you are willing to give. Hopefully one day we will all be able to look back on the 'patent-wars' and laugh at just how easy it was to deal with the bullies once we stood up to them.

    Yours gratefully, in perpetuity

    Chris Hanlon
    Founder
    The Darien Project

    [ Reply to This | # ]

      Say it isn't so!
      Authored by: webster on Tuesday, August 20 2013 @ 02:59 PM EDT
      .

      Let us take this opportunity to thank pj for Groklaw and
      appreciate what she has done.

      Let us also hope that the "forced close" doesn’t stick and
      that she continues in some fashion. She is giving great
      comfort to the evil forces if she stops discussing them on
      their own magnificent tools. Their lobbyist and PR budgets
      can now be reduced. They do not have pj to overcome for the
      nonce.

      We come here for pj’s topics, writing and wit. She yis what
      she yis. We also enjoy the company she draws to her parlor,
      a cross-fertile field for law and tech. Add to that her
      rules and moderation that keep this an 'avante garde' yet
      civilized outpost in the electrostatic universe.

      It is most disturbing to pj and all of us that the
      Constitution of the Land of the Free is not for everyone
      here. We are seeing another typical example of power being
      its own justification.

      The internet has never been private. Where you browse, what
      you post and read have never been private. If you have
      heard Richard Stallman, as has pj, you have already been
      told this. The evils that disturb us commoners and pj will
      persist. Let us hope pj’s outrage meter will spike over her
      privacy meter and she will return to the evil internet to
      further expose its bad actors. They shouldn't get a free
      ride and walkover victory.

      If pj’s shutdown sticks this time, where do we go? Some of
      us only go here and haven’t a clue where to go. Please make
      some suggestions. What do you suggest, pj?

      Personally, I have had some fun here. I don’t even read
      many books anymore. It has been ten years! First anonymous
      and then two ID’s. I’ve thought of putting my legal
      comments into a book, but then I couldn’t keep up with the
      articles.

      So in case it is real, thank you, pj. Your site has been a
      daily companion.

      ~webster~

      .


      [ Reply to This | # ]

      Please leave the "Forced Exposure" article up!
      Authored by: Anonymous on Tuesday, August 20 2013 @ 03:09 PM EDT
      Please keep the site online and keep the "Forced Exposure" article on
      the front page, for as long as we can afford to!

      Groklaw is too valuable a resource for the site to just disappear below the
      waves of the Internet, and the final message is too important to let it
      disappear. Please do whatever you can to keep hosting it, even if its just that
      one article and not the whole site.

      Anyone who comes to www.groklaw.net should be informed of WHY the site shut down
      (or at least, what the "public" reason for it is--for all we know, PJ
      has received an NSL or similar terroristic threat from the U.S. government, and
      is legally forbidden from telling us about it.)

      Here's what we currently know:
      - The NSA spies on all internet traffic to/from everybody, everywhere, all the
      time. Or as close as they can to that ideal.
      - They scoop up all the domestic phone records from Verizon and probably all of
      the other domestic phone companies in the U.S.
      - The U.S. has secret courts and secret laws. They have non-adversarial court
      proceedings in secret court, where they make secret interpretations of public
      law which the government then relies on to authorize secret spying programs.
      Violating the fundamental human dignity of billions of people, all in secret.

      The fascist takeover of America is almost complete. People don't seem to be
      doing much to stop it. The next few decades are going to be bloody.

      [ Reply to This | # ]

      Stopgap
      Authored by: OpenSourceFTW on Tuesday, August 20 2013 @ 04:14 PM EDT
      Sorry I keep posting this, but I wanted to make sure its visible and I didn't
      realize people were talking in the main thread.

      http://www.grokthelaw.freeforums.ne

      It's far from perfect, but at least we can work together as a community to
      discuss and perfect out organization.

      Please please help me out, I don't want to see this community die. It's one of
      the best I have ever been part of, and I have learned so much.

      [ Reply to This | # ]

      Goodbye
      Authored by: Anonymous on Tuesday, August 20 2013 @ 04:40 PM EDT
      I've been reading this site since the early days, and I
      still would like some resolution of the SCO lawsuits. While
      closing the site is a more drastic action than I would take
      it isn't my choice and I respect her decision. I still have
      some hope that she could use some in-person mechanism to
      exchange information (obviously with only one or a small
      number of people), but this would make it difficult for
      volunteers and others... it is such a ridiculous situation
      that the US government (and others) have put us in.

      Best wishes in your life offline. I will miss reading your
      posts here and learning about so many interesting court
      cases.

      [ Reply to This | # ]

      Don't turn out the lights and let the cockroaches take over
      Authored by: fjaffe on Tuesday, August 20 2013 @ 05:29 PM EDT
      PJ, please reconsider. When good people such as you (and the community you've
      fostered) do nothing, the bad guys will inevitably win.

      [ Reply to This | # ]

      I hope this shutdown doesn't stick
      Authored by: PolR on Tuesday, August 20 2013 @ 06:13 PM EDT
      Thank you for all the work you have done. You have no debt to us. You may retire
      when you please and no one has the right to protest.

      However I feel sad things turned up this way. It is like a newspaper protesting
      censorship by closing the shop. Or it is like protesting abusive highway
      policemen by giving up on cars. We shouldn't have to renounce our right to
      communicate because some other right is being abused. I understand privacy is
      precious, but Free Speech is also very important and it is one of the main tools
      we have to fix the problem. This remedy is much worse than the ill we try to
      cure.

      Here are some alternatives. I don't know if they are good enough for you, but I
      suggest them anyway.

      1- Put a notice near the email icon. Remind people that everything they send you
      will be spied on. If people truly have something they can't let the intelligence
      agencies know they won't put it into mail.

      2- Do rolling black outs SOPA style. This may be effective if others jump on
      board.

      The key point is to remind the executive powers that they can't protect
      democracy and human rights by being themselves the infringers. Their job is to
      keep democracy, our rights and ourselves safe and free. If they are the
      infringers who will protect us?

      Look at the statistics. How many deaths by gun fight were there since the twin
      towers collapsed? They don't suspend fundamental human rights to stop the mafia
      from killing people. They don't abridge second amendment rights to stop madmen
      from shooting people randomly. This death toll is horrendous, but it is part of
      the price we pay for our rights. This logic should also apply to terrorism.

      Governments could be much more effective at preventing criminal killings if they
      turn the country into a repressive police state. But they can't do that and
      still protect democracy and human rights.

      PJ, I think you are giving up your (and a bit of our) right to Free Speech to
      salvage some privacy. I don't criticize this choice, but I think we must
      acknowledge this is what is happening.

      [ Reply to This | # ]

      Apple v. Samsung I: Case Management Statement, Hearing Aug. 21 ~pj Updated
      Authored by: Anonymous on Tuesday, August 20 2013 @ 10:05 PM EDT
      Thank you PJ for all you have done over the years. Best
      wishes for yours and everyones future.

      [ Reply to This | # ]

      The Internet
      Authored by: Anonymous on Tuesday, August 20 2013 @ 10:50 PM EDT
      The internet is a place where privacy cannot be assured.
      It is a mecca.
      It is a shopping center.
      It is the public park.
      It is a union of humanity.

      When you go out of your home to a public place, you don't have as much
      privacy.
      But that is the nature of being in public.
      That is the nature of the internet.

      Sure, you can hide things:
      1. Use a VPN
      2. Connect via VPN to an encrypted email service outside the U.S.

      But realize still, it is the Internet.

      It is what humanity has evolved to for better or worse.

      If you want old fashioned, get off.

      Groklaw was good while SCO lasted. It became too right-winged for me for
      everything else.

      Goodbye to Groklaw - it served its purpose. SCO is dead.

      Good luck PJ.

      And thanks for all the fish.

      [ Reply to This | # ]

      Waves
      Authored by: PolR on Wednesday, August 21 2013 @ 12:08 AM EDT
      Try it just for fun. Go to google news and ask for news on Groklaw. You will see
      PJ's decision generates a lot of news in all kinds of media, including
      mainstream.

      [ Reply to This | # ]

      The Lavabit Effect
      Authored by: Anonymous on Wednesday, August 21 2013 @ 06:32 AM EDT
      Long time reader, and occasional commenter who has chosen to remain
      anonymous over the years - so while I am upset at losing this wonderful site, I

      can certainly sympathize with PJ's rationale.

      However, someone has to say it. The timing of this closure so recently
      following Lavabit's closure for similar reasons makes me wonder if they have
      the same cause? Certainly Lavabit are being threatened with more legal
      posturing for even hinting that a NSL may be involved by vocally insisting
      there is nothing they can legally say. PJ, more wisely, simply does not raise

      the topic, and closes discussion so that it cannot be raised.

      Do I actually think this is what happened? Probably not, but that is the
      problem with this legislation. It promotes such paranoia and we are not even
      free to discuss and disabuse ourselves of it. It Is quite possible PJ feared
      such
      a letter arriving in the future, and so acted in advance to protect her
      community. I can imagine a lot of discussion of topics that powers that be
      would prefer not to see discussed occurring here otherwise, which makes it a
      likely target for such treatment in the future, if it were a going concern.

      In closing, I am distraught for PJ who has built such a wonderful site and
      community to be proud of, and who has bestowed the important gift of
      education on a great number of us. Coming from the IT side of the
      community, my understanding of the law, and the real need for professionals
      when dealing with legal matters, has grown almost without bound since I
      started reading most of a decade ago. You will be missed, and I earnestly
      hope that you find some measure of peace and satisfaction in the simpler life
      that now follows. Thankyou.

      [ Reply to This | # ]

      Grokthelaw Moderation
      Authored by: OpenSourceFTW on Wednesday, August 21 2013 @ 01:14 PM EDT
      This thread is to verify the accounts of those who wish to become moderators on
      the successor site: grokthelaw.freeforums.net

      Post here while logged in and you will be given moderator status.

      [ Reply to This | # ]

      Is she safe and well?
      Authored by: Anonymous on Wednesday, August 21 2013 @ 02:36 PM EDT
      Unsettled about the abruptness.

      Was she in actual danger? Makes me wonder if something was going on she can't
      tell us about, like the guy from Lavabit.

      [ Reply to This | # ]

      Elsewhere
      Authored by: Anonymous on Wednesday, August 21 2013 @ 03:34 PM EDT
      On Topic I believe for the Forced Exposure story:
      The Government Communications Security Bureau Bill was passed
      into law 21 August(New Zealand time). This law extends the powers
      of the GCSB (loosely the NZ equivalent of NSA) to enable it to monitor
      the communications of New Zealand citizens within NZ.

      Prime Minister Key has been at pains to point out that a Court ordered
      warrant will be needed for such actions, but opponents disclose a gray
      area of the law where the Prime Minister alone (as Minister in charge
      of GCSB) can extend any such warrant beyond the initial target.

      During drafting stages of the Bill a Cabinet report on earlier compliance
      of GCSB was leaked to the press. The subsequent inquiry into that leak
      accessed emails of some Ministers and journalists without their knowledge
      or consent. Some Ministers expressed outrage when they learned of this.
      Prime Minister Key is reported as saying last night that he believed
      ministers had no grounds for complaint about this action,
      because being trusted not to leak to the media is the least
      he expects from his executive.

      Godwin's Law prevents further comment from me.
      The lights are going out ...

      [ Reply to This | # ]

      Back on Topic: Apple v. Samsung I: Case Management Statement, Hearing Aug. 21 ~pj Updated
      Authored by: eric76 on Wednesday, August 21 2013 @ 03:52 PM EDT
      Today is August 21, the day of the hearing for which this topic was created to
      announce.

      Did anyone attend?

      [ Reply to This | # ]

      Being Late for 9/11
      Authored by: Anonymous on Wednesday, August 21 2013 @ 04:26 PM EDT
      When a fatal disaster looms, people "know" about this beforehand, even
      if they don't seem to know about it consciously. They are often late, lose
      their keys, take a wrong turn, get stuck in traffic, miss their connection, get
      ill and can't travel, or some other apparent excuse. Some just don't want to
      travel and can't explain why. Then the disaster strikes and
      "miraculously", they are not there. This is known to occur more
      frequently than what statisticians would call "statistically
      significant". It spikes just before the event.

      Glad to hear she was one of the fortunate ones and was somehow or other
      "looked after".

      Of course, there were other significant individuals who did know about the Twin
      Towers consciously beforehand and were "miraculously" not there
      either, but that one leads down the rabbit hole.

      [ Reply to This | # ]

      Mission Impossible? Self destructing encrypting emails?
      Authored by: AntiFUD on Wednesday, August 21 2013 @ 04:50 PM EDT
      Just thinking out loud, would it be possible to encrypt the contents of an email
      in such a way that it contains a script/mini-program that on unencryption
      requires a time check (say a week from the time of encryption) that would
      trigger a destruct function, making said email a jumbled mess of random
      characters? A la Mission Impossible: this message will self destruct in 10
      seconds.

      ---
      IANAL - Free to Fight FUD - "to this very day"

      [ Reply to This | # ]

      Still can't believe it.
      Authored by: Anonymous on Wednesday, August 21 2013 @ 10:45 PM EDT
      I keep coming back here hoping that I was mistaken and Groklaw would be back.
      Reading this site was a source of inspiration.
      Thank you PJ.

      I don't know where to go from here. I feel like we should just shut down the
      internet.

      [ Reply to This | # ]

      Sad news
      Authored by: Tufty on Wednesday, August 21 2013 @ 11:29 PM EDT
      I have learned so much here. This is a bad time for this light to go dark. Just
      when it is needed the most. This site has survived so much that I can only hope
      it will return some day and not in the far future.

      Keep going PJ.

      Quis custodiet ipsos custodes?


      ---
      Linux powered squirrel.

      [ Reply to This | # ]

      What about you Mark?
      Authored by: Anonymous on Thursday, August 22 2013 @ 07:59 AM EDT
      To Mark Webbink - I understand that PJ has made a personal choice and that
      Groklaw is hers to do with what she chooses. Will there be a new site where you,
      Mark Webbink, might be able to continue your articles analyzing and explaining
      the finer points of the law in regards to the motions and decisions that are
      still being made in these various law suits that are still going forward?

      [ Reply to This | # ]

      Personal email servers? Better encryption?
      Authored by: ByteJuggler on Thursday, August 22 2013 @ 08:53 AM EDT
      I've been mulling PJ's primary concern bout "forced exposure" and that
      there is no way around this.

      Well, I'm not sure that's true. If we just consider email for example, the way
      email works, is that mail clients will preferentially deliver mail directly to
      the hosts that host the accounts to which the mail is directed by default.

      If the mail servers are also (for example) configured to use encryption (TLS)
      then the messages are encrypted going over the wire and assumed to be secure at
      the recipient.

      It follows that if everyone started using **their own** mail servers (locally
      hosted) which was set up to only allow secure/encrypted connections, then to my
      mind at least one aspect of the "forced exposure" is virtually
      eliminated, assuming also that the encryption used over the wire is not
      compromised. The only person that will then see metadata leaks, is in fact the
      person I've sent the email to which is hardly an issue.

      To belabor the point: If PJ ran her own mail server, suitably configured with,
      say, AES-256 bit encryption (or stronger, if possible) would this not
      essentially eliminate the "forced disclosure" problem, subject to the
      caveat of AES-256 being secure.

      It would even be an idea to create a custom/forked mail server that supports or
      insists on even stronger encryption (scrypt? scrypt on top of AES etc etc) for
      the exclusive use of people in the groklaw community. Like others have said:
      Email is a tool, we build the tools. Let's build something better if we need
      to?

      As an aside, here's a useful page on configuring security settings on your PC to
      force the use of AES-256 bit:
      http://is.gd/0Nlw8C

      [ Reply to This | # ]

      PassLok can help to keep your email secure
      Authored by: Anonymous on Thursday, August 22 2013 @ 11:53 AM EDT
      PJ told me to post this here, though I don't think she endorses it necessarily.

      Since it seems that anything that runs from a server can be compromised, the
      solution to truly private email is low-tech encryption at the source. This is
      what
      PassLok does. I have developing it over the last year and now it's ready to be
      used.

      -It involves no servers, no key rings, no installation whatsoever.
      -It runs offline.
      -It runs on a smartphone as well as on a PC.
      -It implements NIST521 elliptic curves on top of AES256 encryption. Elliptic
      curves were recommended as the way to go in the last Black Hat conference.
      -It is fully auditable so you can make sure no malicious code has been added.
      -It is easy to use.

      Get PassLok from https://passlok.site44.com or
      https://fruiz500.github.com/passlok

      See the tutorial on how to use it with your own mail service at:
      http://www.youtube.com/watch?v=85coNK5mKrc

      I hope you like it.

      F. Ruiz

      [ Reply to This | # ]

      Hey, who put up the News Pick
      Authored by: cjk fossman on Thursday, August 22 2013 @ 12:57 PM EDT
      Somebody is watching the store.

      Was it you, Mark?

      [ Reply to This | # ]

      Brilliant article on Groklaw ~ inquirer, a must read
      Authored by: Nick_UK on Friday, August 23 2013 @ 09:07 AM EDT
      groklaw-was-the-canary-in-the-coal-mine

      Nick

      [ Reply to This | # ]

      I can't believe I'm actually saying this
      Authored by: celtic_hackr on Friday, August 23 2013 @ 11:24 AM EDT
      I really believe in Groklaw. This is not an easy decision.
      I have a young child, and want to see that child grow up.

      However, I believe in Freedom, and conviction in one's principles. So here
      goes.

      I'm would rather risk a lifetime in jail or even death rather than see despotic
      destruction of the Freedom of Speech and everything the Constitution is about.

      Therefore, I'm willing to host, although I'll need financial and coding help to
      do so, a server or series of servers which will function like TOR servers for
      Groklaw. We'll need to build an email-like client that will push anonymized
      encrypted "email" via encrypted pathways from/to PJ and any registered
      or anonymous user. PJ will know who and where the emails come from, but no trace
      will be found in any readable headers. Furthermore the encrypted email will be
      unencrypted at the server and reencrypted in such a way as to not be
      identifiable based on the original. Thus changing the footprint of every email
      and thus making tracking and REing extremely difficult and not doable even if
      saved for 5 years. So even if capturing the messages to/from the server there
      will be no way to match the in and out to backtrack.

      The encryption will be required to be more secure than one that could be cracked
      potentially within 5 years. This means the encryption will be slow. Noticeably
      slow on modern hardware and very slow on older hardware. Once encrypted,
      emailing won't have any performance hit.

      The server will be encrypted with a very strong encryption, and a built-in
      self-destruct. The email clients, will also contain the "emails" and
      automatically shred the emails after a settable timeframe up to one week. At the
      end of that time, or one week, emails will be shredded, leaving no trace for NSL
      or other requests and thus freeing the users from possible contempt or
      prosecution (theoretically).

      As the hoster of this server (or farm), I will give up my freedom rather than
      submit to these NSLs targeted at no one/everyone. and would trigger a
      self-destruct rather than comply. Although, I'll admit, I would comply with one
      if targeted at specific individuals for a real crime. I would not impede a
      legitimate investigation of a constitutionally allowable crime. I would have
      shielded Snowden.

      If that would be acceptable to PJ to continue. I'll do it. But, I'll need help
      if she accepts. This is my choice. I will stand up and defend the Constitution
      of the USA against these traitors.

      [ Reply to This | # ]

      Apple v. Samsung I: Case Management Statement, Hearing Aug. 21 ~pj Updated
      Authored by: julian on Friday, August 23 2013 @ 02:18 PM EDT
      Don't forget PJ still needs to pay the bills until she finds another form of
      income.

      ---
      John Julian

      [ Reply to This | # ]

      Apple v. Samsung I: Case Management Statement, Hearing Aug. 21 ~pj Updated
      Authored by: Anonymous on Sunday, August 25 2013 @ 10:47 PM EDT
      Given a million years of evolution where might was necessary for survival, it really doesn't surprise me people apply it without thought. One would more appropriately say: applied instinctively.

      This what sets humanity apart from the rest of the animal kingdom. Can a person be said to still be human if they let instinct take over their actions?

      [ Reply to This | # ]

      Are comments still open under this heading?
      Authored by: myNym on Wednesday, August 28 2013 @ 11:55 PM EDT
      Dearest PJ,

      We don't know each other personally, but like others here, I
      have been following you almost daily for somewhere near a
      decade.

      I love everything you stand for.

      I support anything you choose to do.

      I am crying as I write this.

      So long, and thanks for all the fish.

      myNym

      (It's not my name, it's just a nym.)

      [ Reply to This | # ]

      My Last Groklaw Comment
      Authored by: bprice on Thursday, August 29 2013 @ 02:58 AM EDT
      In a few hours, after some hours of sleep, I will click the Reply button on this last commentable Groklaw article, and it will take me to the front page instead of this Post a Comment page. I will have read any comments that follow this one — as I have read nearly all the thousands of comments before.

      Then I will do something I haven't done since Firefox implemented tabbed browsing — I'll close my Groklaw tab, with a final sigh.

      It has been a fine ten years, learning many things, conversing with many neat people (and some not-so-neat ones).

      It has been ten years that I have appreciated PJ, with all she has done to report, to analyse, to find and present information, and to entice a multitude whose contributions have made Groklaw such a wonderful place to spend all the time I could manage. I will miss Groklaw, PJ, and the multitude. Thank all of you, including the ones who are no longer among us.

      Maybe I'll cry, just a little, in PJ's honour.

      Thank you, and good night.

      ---
      --Bill. NAL: question the answers, especially mine.

      [ Reply to This | # ]

      PJ, please be like a phoenix
      Authored by: Anonymous on Thursday, August 29 2013 @ 06:35 AM EDT
      Hey PJ, closing comments on your last post can't save you from people wanting to
      comment on it! :)

      I sincerely urge you to come back resurrected like a Phoenix for us. Don't let
      the burning stupidity of the world kill you. How does world become better with
      one beautiful voice less than before?

      You know, persistence always wins even applied with great stupidity, let us be
      more persistent than the stupid! And if we apply enough stupidn^Wpersistence
      world can really become better. If we just hide, then how could the others
      understand?
      Seriously most of the people doing this kind of stuff are not really different
      from us. They just did what they think is best because they do not realize the
      consequences. We need to try to constantly educate [1] government, corporations
      and people and there always (or at least for a long time) will be people that
      still don't get it. That's the state of our society and it needs time and
      patience to change. I think you are one of the influential people in our world
      and I think it will really be beneficial to keep trying until success.

      Your Sincerely!

      [1] as we need to constantly educate ourselves as well learn from others
      experience and knowledge

      [ Reply to This | # ]

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