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Food Fight in Apple v. Samsung ~pj - Updated 2Xs
Wednesday, August 01 2012 @ 10:14 PM EDT

Being a lawyer requires a mix of skills, part chess master, part negotiator, part brainiac, part wordsmith, and part street theater artist. Today in the Apple v. Samsung trial, there was a bit of the last. Samsung made a bold move. It could have real consequences. Here's the very best coverage, at Above the Law:
Man, I really wish I could sit in the gallery at the Apple v. Samsung trial over the next few weeks. It’s a war zone down in San Jose. In court yesterday, Judge Lucy Koh became “livid” when she found out about a Samsung statement describing evidence that had been ruled inadmissible by the court. She demanded to know John Quinn’s involvement in the statement (Quinn Emanuel represents Samsung), and then she threatened to sanction him. Whoa.

Quinn was ordered to explain himself, and we’ve got the declaration he filed this morning. It’s a doozy, and predictably, the master litigator does not take kindly to, in his words, “media reports… falsely impugning me personally”…

In brief, Samsung released to the media some materials that the judge ruled were offered too late to show to the jury. The judge asked for an explanation, which John Quinn of Quinn Emanuel manfully provided. Here's his Declaration [PDF]. We haven't heard from her yet, but Apple sees an opportunity. In fact, Apple now says it will be asking the court to sanction Samsung, according to a letter [PDF] Apple filed with the court today.

In a small way, everything that is wrong with the way Apple has been handling this case is encapsulated in this micro-drama. And I think this is what it means: Samsung is sick of Apple FUD in the media, and it intends to fight back in the court of public opinion.

Jump To Comments

[Update 1, Update 2]

The Quinn declaration has exhibits too:

Mr. Quinn is one of the best lawyers in the country, if not the world, so what is going on? To understand, let's itemize his main points, because you will see a master at work:

1. It wasn't a press release; it was a statement in response to multiple questions from the media (see them in Exhibit A). "Samsung‟s brief statement and transmission of public materials in response to media inquiries was lawful, ethical, and fully consistent with the relevant California Rules of Professional Responsibility (incorporated by N.D. Cal. Civil Local Rule 11-4) and legal authorities regarding attorneys‟ communications with the press. California Rule of Professional Responsibility 5-120(B)(2) specifically permits attorneys involved in litigation to disclose “information in a public record.” As shown above, all of the information disclosed was contained in public records. Further, Rule 5-120(C) specifically provides that “a member may make a statement that a reasonable member would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the member or the member's client.”

2. There was no court order saying he couldn't do what he did, so he wasn't flouting any court order or violate any legal or ethical standards.

3. The materials were already publicly released, some by Apple and the rest because this very court forced the parties to unseal documents. (See Docket 1256, the judge's order: "The whole trial is going to be open." Also the order, docket 1269: "Unlike private materials unearthed during discovery, judicial records are public documents almost by definition, and the public is entitled to access by default.”)

In harmony with those orders, Samsung released the materials, attached to Joby Martin's Declaration, Exhibits 5, 6, and 8 [PDFs].

4. Apple released some of the information itself, in Docket Numbers 1428-1, 1438-2 (Tucher Declaration in Support of Apple's Motion to Enforce), 1429-13 (Walker Declaration in support of Samsung‟s Opposition to Motion to Enforce), and 1451 (Cashman Declaration in Support of Motion for Leave).

5. There were, as a result multiple articles about the materials already in the media, *before* the jury was even chosen, in the New York Times, the L.A. Times, Huffington Post and CNET.

6. The media has been reporting "in salacious detail" Apple's allegations of Samsung's "copying". If, then, talking to the media is a problem, he seems to be saying, why is Apple getting away with it? Samsung has a right to correct the public's false impression.

7. It can't influence the jury in any way now, because they are not allowed to read any coverage of this litigation. "Moreover, Apple's baseless and public assertions that Samsung‟s transmission to the media of public information constituted contempt of court and that these actions were intended to pollute the jury were themselves glaring falsehoods, highlighting why Samsung has every right to defend itself in the public domain from unfair and malicious attacks."

8. Attorneys have a First Amendment right to speak. The Ninth Circuit Court of Appeals has already so ruled, in Standing Comm. on Discipline of U.S. Dist. Court for Cent. Dist. of Cal. v. Yagman, 55 F.3d 1430 (9th Cir. 1995), where the court held that "truth is an absolute defense" and a "statement of opinion based on fully disclosed facts can be punished only if the stated facts are themselves false and demeaning."

My guess is the Judge Koh is doing reseach. Because in truth, Quinn planned this carefully, and you see he did his research, and so he seems to have boxed her in, if not at this level then surely on appeal. Certainly in the court of public opinion, it makes perfect sense, and looking at it with my paralegal hat on, here's what I think it might mean: that Samsung is totally sick of the media swallowing all the Apple FUD, but that it blames Apple for spreading it, and Samsung is fighting back.

If you recall, Samsung told the court in its trial brief [PDF], that Apple has been involved in a "coordinated campaign" of feeding the media negative information about Samsung. That's understating it, actually. Here's what Samsung wrote:

Even as Apple has carried out a coordinated campaign of dragging Samsung‘s name through the mud in this lawsuit and in the media, it has used Samsung‘s patented technology while flatly refusing to pay for its use.
During the discussions over whether or not to unseal, the judges waxed poetic about the importance of the public having access to court information. In denying IBM's motion for a temporary restraining order hoping to prevent the public publication of the royalties IBM and Samsung agreed to in a licensing agreement, a position that Reuters opposed, Judge Grewal wrote [PDF]:
The court is sympathetic to the commercial interest, especially those of a third-party, in protecting its licensing terms. It truly is. But “[a]ny system of prior restraints of expression comes to this court bearing a heavy presumption against its constitutional validity.” On a record before the court that includes the IBM concessions noted above, IBM plainly has not rebutted the heavy presumption that its request would have this court violate Reuters’ First Amendment rights. This the court will not do. IBM’s motion is DENIED.
So Quinn isn't wrong that the court itself has been insisting on openness. And he isn't wrong that there are First Amendment issues involved. If the court's orders forcing the unsealing of filings made these materials public, how is it Samsung's fault? In fairness, some of the filings were in paper format, not digital, but that still counts as public. But if anyone can run over to the courthouse, I'd love to see those documents. If you live nearby, please email me and I'll tell you which exhibits are paper only, and I'll cover your expenses.

So, how did Apple react? In part, ridiculously, like this:

Samsung's multiple references to the jury in its statement make plain its intent that the jurors in our case learn of arguments the Court has excluded through the press. The press reports cited above have characterized Samsung's actions as "flouting" this Court's orders, and Apple agrees.
Ah, but who gave Forbes and AllThingsD that impression? Did Apple directly or via a proxy present it that way? Just asking. And if you read the Forbes article, for example, you find, "Apple’s lawyer Harold McElhinny called the move the most blatant example of contempt of court it had ever seen and an intentional effort to 'pollute the jury.'”

Anyway, it's ridiculous because the jury will never see it, but Apple wants sanctions. First rectangles with rounded corners, and now this. Apple's brand is at risk, in my view. And it's really sad to watch the company do this to itself. I felt the same about Oracle's self-destruction in the Oracle v. Google litigation. Sadly, nobody listens when high-priced lawyers are whispering in their ears.

Remember in the SCO v. Novell trial, SCO's hair was on fire because it worried that the jury would visit Groklaw if an exhibit included the url and made Novell remove it after the judge refused to ban the exhibit itself? And why did he refuse? Because he said he relied on the jury to follow his instructions, adding that if you can't trust them to do that much, we might as well just quit.

But Apple wants sanctions against Samsung. And that kind of extremism is exactly why Apple's name is ending up mud with so many of us, and even more so now that Samsung's side of the story is finally being told. There are two courtrooms in this litigation, one in California and one in the court of public opinion. Samsung handled the first by making sure its objection to the judge's refusal to let all the evidence be heard by the jury. So that isn't what the public statement was about. It's about us, you and me, and what we think about this company who feels genuinely aggrieved that its name has been dragged through the mud. And I think this is a warning to Apple's lawyers too. You can say quite a lot in a trial without having to worry about defamation, but there is a line. And Quinn feels his reputation, as well as Samsung's, has been harmed. As Quinn put is:

As this Court has acknowledged, this is a case with genuine and substantial commercial and public interest and with enormous potential commercial impact. The media has been reporting in salacious detail Apple’s allegations of Samsung’s supposed “copying”, causing injury to Samsung’s public reputation as a company. Moreover, Apple’s baseless and public assertions that Samsung’s transmission to the media of public information constituted contempt of court and that these actions were intended to pollute the jury were themselves glaring falsehoods, highlighting why Samsung has every right to defend itself in the public domain from unfair and malicious attacks.
You do not see this every day. He's risking sanctions for his client. And if I am ever in need of a lawyer, I want *this* guy.

Update: I woke up today thinking about all this, and while I don't wish to overstate anything, I am wondering if the Groklaw factor in the SCO saga plays a role. I mean, no one had ever seen a community rise up, in the way Groklaw did, and it certainly played an important role in answering all the SCO FUD in real time. I'm wondering if the law firms involved, some of whom we see again and again in more recent litigation, saw that happen and realized that there was a new area to try to utilize. Being lawyers, they would think like that, I would assume. Lawyers are all about being effective.

Remember when one of the Oracle lawyers visited the media room during the trial in Oracle v. Google, and then when the media wrote about it negatively, a PR person slinked in? Or tried to.

Anyway, that's my theory, that they are trying for the Groklaw effect, but they don't have a real community, so instead they talk to the media and hire folks to speak online and to the media for them (allegedly independently).

So here's a clue for them: the Groklaw effect only works if it's authentic. No one hired Groklaw ever. It just happened organically. Corporations can't manufacture it. There is no winning with astroturf-groklaws. They can blog until the cows come home, but it doesn't work with real people, because real people know what's real. Don't you remember the notebooks filled with press on SCO that Darl McBride brought onstage with him and showed with pride? It didn't do SCO a bit of good in the end though, did it? So effectiveness isn't about the number of headlines you can cause to happen or how much you are quoted by the press. SCO is Exhibit A for that.

You can't buy Groklaw or any authentic public reaction to trials. You can only buy Brand X, and in the long run, that will cost you. You only win with the public if you deserve it, and tech trials are different from most others. A lot of technical knowledge is out there. In fact, more so than with lawyers. So if you offend the public because they know better than what you are saying in the courtroom, it cuts deep.

And while the media can be influenced up to a point, it doesn't mean you have reached real people with your message, and sooner or later, any real journalists see through you. You can't buy them all.

If I'm right in my theory, then it's a new factor in tech litigation. A Groklaw effect is like the jury -- you can't bribe them, buy them, or control them. You can try to present evidence and show them why they should rule your way, but you can't make it happen with anything but the truth. And that's more true in the public courtroom than in any court of law, because you have a truly tech-knowledgeable audience watching. Watching and groaning.

So, here's my advice, if you really want to be more effective. Instead of trying for a phony Groklaw effect, hire more technical experts to advise the lawyers, and take the time to sit down with them and have them review your technical points until you really understand them enough not to say foolish things about API SSOs or "Hello World" speed tests or how vital rangeCheck is and how much it is worth in damages or rectangles with rounded corners.

People are watching. And they know more about the tech than you do, and that's not good.

Update 2: Well, it gets worse. Guess what sanctions Apple is asking for:

"The proper remedy for Samsung's misconduct is judgment that Apple's asserted phone design patents are valid and infringed," Apple wrote in court papers. "It would be, to be sure, a significant sanction. But serious misconduct can only be cured through a serious sanction."
Hahahaha. That's a bad way to win, my friend, a bad way. Maybe, just maybe, Apple is a teensy bit worried about the quality of its patents and wants to win by pretending this is all a much bigger deal than it actually was?

Here's the Declaration as text:

DECLARATION OF JOHN B. QUINN
SUBMITTED AT THE REQUEST OF
THE COURT REGARDING SAMSUNG’S
DISCLOSURE OF PUBLIC
INFORMATION IN RESPONSE TO
PRESS INQUIRIES

DECLARATION OF JOHN B. QUINN

I, John B. Quinn, do hereby declare as follows:

1. I am an attorney licensed to practice before this Court, and am the managing partner of Quinn, Emanuel, Urquhart & Sullivan, LLP, counsel for Samsung in this trial. I have personal knowledge of the facts set forth in this Declaration and if called as a witness, could and would competently testify to them.

2. On July 31, 2012, I approved and authorized the release of a brief statement—it was not a general press release—and proposed trial demonstrative exhibits. This followed multiple requests from members of the media seeking further explanation—including requesting the demonstrative exhibits at issue—as to the basis for Samsung's claims, made in open court and in its public trial brief, that it had the right to present evidence that the iPhone was inspired by “Sony style” and that Samsung had independently created the design for the F700 phone—that was alleged in Apple's opening statement to be an iPhone copy—in 2006, well before the announcement of the iPhone.

3. A true and correct copy of a sample of the press inquiries seeking precisely the information that was provided—including requesting the trial demonstrative exhibits at issue—is attached as Exhibit A.

4. Contrary to the representations Apple's counsel made to this Court, Samsung did not issue a general press release and more importantly, did not violate any Court Order or any legal or ethical standards. These false representations by Apple's counsel publicly and unfairly called my personal reputation into question and have resulted in media reports likewise falsely impugning me personally.

5. Far from violating any order, Samsung‟s transmission to the public of public information disclosed in pretrial filings is entirely consistent with this Court's statements—made in denying both parties' requests to seal documents—that “[t]he United States district court is a public institution, and the workings of litigation must be open to public view. Pretrial submissions are a part of trial.See Dkt. No. 1256 at 2 (Order Denying Sealing Motions, dated July 17, 2012) (emphasis added). Indeed, the Court has told the parties that “the whole trial is

2

going to be open.” Id. at 3. The Court repeated these sentiments on July 20, 2012, noting “the plethora of media and general public scrutiny” of these proceedings, and stating that “[t]he public has a significant interest in these court filings.” See Dkt. No. 1269 (Order Denying Motions to Seal, dated July 20, 2012); see also id. at 2 (“The mere fact that the production of records may lead to a litigant's embarrassment, incrimination, or exposure to further litigation will not, without more, compel the court to seal its records. Unlike private materials unearthed during discovery, judicial records are public documents almost by definition, and the public is entitled to access by default.”) (internal quotations omitted).

6. All of the material in the excluded trial demonstrative exhibits at issue was previously in the public record. The substance of these trial demonstrative exhibits was included in Samsung's trial brief, in other public filings (including filings by Apple) and reports, and were specifically addressed in open court with the media in attendance. Per the Court's instruction, Samsung filed its evidence of independent creation as Exhibits 5, 6 and 8 to the Declaration of Joby Martin in Support of Samsung's Trial Brief; Apple's “Sony-style” CAD drawings and models were attached as Exhibits 1 and 2 to the Martin Declaration. See Dkt. No 1322. Apple itself publicly filed Shin Nishibori's testimony that the direction of the iPhone's design was completely changed by the “Sony-style” designs that Jonathan Ive directed him to make. See Dkt. No. 1428-1. All of these filings are attached hereto as Exhibits B - F.

7. Other public filings that disclosed the information at issue include Docket Numbers 1438-2 (Tucher Declaration in Support of Apple's Motion to Enforce), 1429-13 (Walker Declaration in support of Samsung's Opposition to Motion to Enforce), and 1451 (Cashman Declaration in Support of Motion for Leave).

8. Moreover, before jury selection, virtually all of the information and images in the excluded slides had already appeared in dozens of media reports, including by the New York Times, Los Angeles Times, Huffington Post, and CNET.

9. As this Court has acknowledged, this is a case with genuine and substantial commercial and public interest and with enormous potential commercial impact. The media has been reporting in salacious detail Apple's allegations of Samsung's supposed "copying", causing

3

injury to Samsung's public reputation as a company. Moreover, Apple's baseless and public assertions that Samsung's transmission to the media of public information constituted contempt of court and that these actions were intended to pollute the jury were themselves glaring falsehoods, highlighting why Samsung has every right to defend itself in the public domain from unfair and malicious attacks.

10. Samsung's brief statement and transmission of public materials in response to media inquiries was lawful, ethical, and fully consistent with the relevant California Rules of Professional Responsibility (incorporated by N.D. Cal. Civil Local Rule 11-4) and legal authorities regarding attorneys' communications with the press. California Rule of Professional Responsibility 5-120(B)(2) specifically permits attorneys involved in litigation to disclose “information in a public record.” As shown above, all of the information disclosed was contained in public records.

11. Further, Rule 5-120(C) specifically provides that “a member may make a statement that a reasonable member would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the member or the member's client.”

12. Samsung‟s brief statement and transmission of public materials in response to press inquiries was not motivated by or designed to influence jurors. The members of the jury had already been selected at the time of the statement and the transmission of these public exhibits, and had been specifically instructed not to read any form of media relating to this case. The information provided therefore was not intended to, nor could it, “have a substantial likelihood of materially prejudicing an adjudicative proceeding.” See Cal. R. Prof. Res. 5-120(A); see also Berndt v. Cal. Dep’t of Corrections, 2004 WL 1774227, at *4 (N.D. Cal. Aug. 9, 2004) (attorney‟s extra-judicial statements regarding a pending case did not create a “substantial likelihood of material prejudice” in part because the information “is contained in the public record, and Ms. Price may freely state any information in the public record”).

13. The United States Court of Appeals for the Ninth Circuit has held that attorneys' speech to the press is protected by the First Amendment. See Standing Comm. on Discipline of U.S. Dist. Court for Cent. Dist. of Cal. v. Yagman, 55 F.3d 1430 (9th Cir. 1995). In Yagman, the

4

Ninth Circuit held that, as in defamation cases, “truth is an absolute defense” to statements by attorneys concerning court proceedings, and further that “[a] statement of opinion based on fully disclosed facts can be punished only if the stated facts are themselves false and demeaning.” Id. at 1439. Indeed, Apple's lawyers are no strangers to statements to the press regarding litigation in the Ninth Circuit. See id. at 1441 n.19 (Kozinski, J.) (“[Apple Computer's attorney] call[ed] the Ninth Circuit ruling [in Apple Computer, Inc. v. Microsoft Corp.] 'intellectually dishonest' and 'extremely detrimental to the business of the United States.”) (brackets in original) (internal quotation omitted).

14. Consistent with the concerns of the California Rules of Professional Responsibility, here Samsung's transmission of public information “will not be viewed as coming from confidential sources, and will not have a direct impact on a particular jury venire.” Yagman, 55 F.3d at 1443. Indeed, although this Court has imposed no such restrictions, even courts that have chosen to restrict the parties' communications with the public have recognized that “[a]fter the jury is selected in this case, any serious and imminent threat to the administration of justice is limited” because “there is an 'almost invariable assumption of the law that jurors follow their instructions,'” United States v. Sutton, 2007 WL 2572348, at *4 (D. Ariz. Sept. 4, 2007) (quoting Shannon v. United States, 512 U.S. 573, 585 (1994)).

I declare under penalty of perjury that the forgoing is true and correct to the best of my knowledge. Executed this 1st day of August, 2012, in Pasadena, California.

s/ John B. Quinn
John B. Quinn

5

General Order 45 Attestation

I, Victoria F. Maroulis, am the ECF user whose ID and password are being used to file this Declaration. In compliance with General Order 45(X)(B), I hereby attest that Joby Martin has concurred in this filing.

/s/ Victoria Maroulis

6

Here's Apple's letter:
WILMERHALE logo

August 1, 2012

Via ECF Filing

Honorable Lucy H. Koh
United States District Judge
Northern District of California
Courthouse 8, 4th Floor
280 S. First Street
San Jose, CA 95113

Re: Apple Inc. v. Samsung Electronics Co. Ltd., et al.,
Case No. 11-cv-01846 LHK (PSG)

Dear Judge Koh:

At the conclusion of yesterday's proceedings, the Court ordered Mr. Quinn to file a declaration by 9:00 a.m. this morning identifying who drafted the statement that Samsung released yesterday, who from Samsung's legal team authorized the release, who issued the release and what Mr. Quinn's role was in the release.

Mr. Quinn's declaration acknowledges that he "approved and authorized the release of a brief statement" and the release of the exhibits (contained in demonstratives to be used in Samsung's opening) that had been excluded from evidence by the Court. Mr. Quinn, however, does not provide or address the text of the statement issued by Samsung. According to multiple press reports, the full text of the statement issued by Samsung yesterday is as follows:

The Judge's exclusion of evidence on independent creation meant that even though Apple was allowed to inaccurately argue to the jury that the F700 was an iPhone copy, Samsung was not allowed to tell the jury the full story and show the pre-iPhone design for that and other phones that were in development at Samsung in 2006, before the iPhone. The excluded evidence would have established beyond doubt that Samsung did not copy the iPhone design. Fundamental fairness requires that the jury decide the case based on all the evidence.
See, e. g. , "Samsung, After 'Begging' to Get Sony Into Apple Patent Trial, Flouts Judge And Releases 'Excluded Evidence' Anyway" (www.forbes.com/sites/connieguglielmo/2012/07/31/samsung-after-begging-to-get-sony-into-apple-patent-trial-flouts-judge-and-releases-excluded-evidence-anyway/); "Samsung Goes Public With Excluded Evidence to Undercut Apple's Design Claims" (www.allthingsd/20120731/samsung-goes-public-with-excluded-evidence-to-undercut-apples-design-claims/). Mr. Quinn's declaration does not address two of the Court's questions: who drafted the statement and who released it.

WILMERHALE

Honorable Lucy H. Koh
August 1, 2012
Page 2

Samsung's multiple references to the jury in its statement make plain its intent that the jurors in our case learn of arguments the Court has excluded through the press. The press reports cited above have characterized Samsung's actions as "flouting" this Court's orders, and Apple agrees.

This deliberate attempt to influence the trial with inadmissable evidence is both improper and unethical. Accordingly, we write to inform the Court that Apple will be filing today an emergency motion for sanctions and other relief that may be appropriate. We will, of course, be available for a hearing at the Court's earliest convenience, and will be prepared to address this issue with the Court tomorrow.

Respectfully submitted,

[signture]
William F. Lee

WFL:le
cc: Counsel of Record for Samsung


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