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Apple v. Samsung Voir Dire Reveals Broken Promises (Docket 1979-1993) ~pj
Monday, September 24 2012 @ 04:35 AM EDT

The day the jury in Apple v. Samsung announced its verdict, I told you that it was preposterous, and then, when the jurors first began to speak to the media, I told you that I didn't think the verdict could stand. Now that we have Samsung's Rule 50 and 59 motion asking the court for judgment as a matter of law, retrial, and/or remittitur, especially now with all the exhibits in support, we see why that is so.

Exhibits beyond number, and I have them all for you. One filing alone, for example, has over 100 exhibits. But the one that took my breath away is this one -- a large excerpt of the voir dire, or jury selection process, Exhibit 1 [PDF] attached to the John Pierce Declaration in Support of Samsung's motion. And what we see is the foreman being asked if he is chosen for a jury whether he will set aside all he knew of patent law from his own experience and just follow the court's instructions and judge based solely on evidence admitted at trial. He answers yes. That, of course, is exactly what he did not do, judging from interviews he and another juror gave to the media.

So aside from all the issues Samsung highlighted in the publicly available version of the motion as to things mishandled by the court and the jury, including the jury's incredibly unsustainable math, we now see one of the pieces in support of Samsung's redacted section, which is now obviously claiming juror misconduct. In the previous article, I wrote that I strongly suspected it, based on the cases cited. But now we have a smoking gun, so to speak.

Here's a segment of the voir dire of the prospective jurors, one of whom ended up foreman, with the judge asking the questions -- sorry it's in all caps, but that's how the document is:

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

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

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

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

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

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

PROSPECTIVE JUROR: I don't believe so.

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

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

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

PROSPECTIVE JUROR: Yes, there was.

THE COURT: Um-hum.

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

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

PROSPECTIVE JUROR: Yes.....

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

PROSPECTIVE JUROR: Yes, I follow your instructions.

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

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

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

PROSPECTIVE JUROR: Yes, right.

THE COURT: Okay. Were patents issued?

PROSPECTIVE JUROR: Yes.

THE COURT: And you were the inventor on both?

PROSPECTIVE JUROR: Yes.

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

PROSPECTIVE JUROR: Yes.

THE COURT: Okay. Thank you....

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

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

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

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

PROSPECTIVE JUROR: Yes.

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

PROSPECTIVE JUROR: I think so, too.

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

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

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

PROSPECTIVE JUROR: No....

THE COURT: No. I see.

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

THE COURT: I see.

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

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

As you can see, more than just the foreman promised to follow the law and not use what they knew from their own cases, but just follow the judge's instructions.

Also, be aware that when jurors answer questions in voir dire, the lawyers on both sides do check. Sometimes they don't have time to fully check someone's answers prior to the jury being formed. It all goes quite quickly, but that doesn't mean the lawyers stop checking out what the jurors say. As you saw in the previous article, if a prospective juror answers questions in a way that later proves to be untrue, that can be an issue. Similarly, if they are asked a question and fail to mention something pertinent, that can be a problem too. For example, if the judge asks if anyone has ever been involved in any litigation, and a juror doesn't mention one and it turns out to be relevant topically, that could be a problem. And if a juror introduces evidence that was not presented at trial, and that piece is what turns the tide and results in a verdict, that's a problem too.

And that's exactly why the judge asks the questions and makes clear to the jury pool what the rules of the road are going to be, so they can tell the judge that they can't follow just the law, or whatever, and then they can be released and won't serve on the jury.

I say these things could be a problem, because sometimes they happen but it doesn't end up mattering. The tendency is for jury verdicts to stand, even if there is a problem. That's because the system doesn't want jurors harrassed, and because you do want there to be a reliable The End to a trial. I saw one case where a juror was drunk during deliberations in a criminal trial, and even that wasn't enough to alter the outcome. But there are for sure cases where misconduct resulted in overturning a verdict or sending the case back for a new trial. We'll wait and see which this turns out to be. [Update: A Groklaw member, SLi, has posted a comment with a list of some of the relevant cases Samsung is listing in its motion, with a brief snippet of each to show what the case was about.]

Here are all of the PDFs filed from docket numbers 1979-1993. That, of course, includes the Samsung and Apple motions that we highlighted in the previous article, but now you have all the supporting documents as well. It's taken a while just to collect them, and I haven't yet had a chance to read them all, so we can do that together. Some of them are large chunks of transcripts from the trial, by the way, so we now get an advance peek at that event.

Keep in mind that when you see a lawyer declaration, it generally will be a list of exhibits, explaining what each one is. For example, the Declaration of B. Dylan Proctor, attached to #1988, is a list of exhibits, and so is the Declaration of Jason Bartlett, attached to #1983.

With so many documents at once, it's very unlikely that I made no mistakes, so do sing out if you see something that isn't perfectly aligned. As I went along and realized what a whale of a project this is, I began to name the PDFs in ways that may save you downloading. For example, if the exhibit is sealed or manually filed, I included that in the name, so if you mouse over the link, you can see that. And if it's a patent, I listed that too. I didn't do that for all of them, so if you should avoid patents, be aware of this thicket and look at the lawyer declarations for guidance.

If someone has the ambition to make a list of what everything is in HTML, I'll gladly post it as a map for everyone to follow. That will surely help us keep track of what everything is.

The documents:

1979 - Filed & Entered: 09/21/2012
Administrative Motion to File Under Seal
Docket Text: Administrative Motion to File Under Seal [1907], [1911], [1912] filed by Apple Inc.. (Attachments: # (1) Declaration of Cyndi Wheeler in Support of Apple's Administrative Motion to File Documents Under Seal, # (2) Exhibit 1, # (3) Proposed Order)(Selwyn, Mark) (Filed on 9/21/2012)

1980 Filed & Entered: 09/21/2012 Administrative Motion to File Under Seal Docket Text: Administrative Motion to File Under Seal Samsung's Renewed Administrative Motion to File Documents Under Seal filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # ( 1) Proposed Order Granting Samsung's Renewed Administrative Motion to File Documents Under Seal, # ( 2) Declaration of Christopher Kelley in Support of Samsung's Motion to Seal Exhibit 87, # ( 3) Exhibit 1 to Declaration of Christopher Kelley in Support of Samsung's Motion to Seal Exhibit 87, # ( 4) Exhibit 2 to Declaration of Christopher Kelley in Support of Samsung's Motion to Seal Exhibit 87, # ( 5) Declaration of Declaration of Christopher Kelley in Support of Samsung's Motion to Seal Exhibit FF, # ( 6) Exhibit 1 to Declaration of Christopher Kelley in Support of Samsung's Motion to Seal Exhibit FF, # ( 7) Declaration of Melissa Dalziel, # (8) Exhibit A to Declaration of Melissa Dalziel, # (9) Exhibit B to Declaration of Melissa Dalziel, # (10) Exhibit C to Declaration of Melissa Dalziel)(Maroulis, Victoria) (Filed on 9/21/2012)

1981 - Filed & Entered: 09/21/2012
Brief
Docket Text: Brief re [1965] Order on Motion for Miscellaneous Relief Apple's Brief Regarding Non-Jury Claims Including Waiver, Equitable Estoppel, Unclean Hands, and Unfair Competition filed byApple Inc.. (Attachments: # ( 1) Proposed Order Granting Apple's Motion on Non-Jury Claims Including Waiver, Equitable Estoppel, Unclean Hands, and Unfair Competition)(Related document(s)[1965]) (Selwyn, Mark) (Filed on 9/21/2012)

1982 - Filed & Entered: 09/21/2012
Administrative Motion to File Under Seal
Docket Text: Administrative Motion to File Under Seal filed by Apple Inc.. (Attachments: # (1) Public Version Apples Motion for a Permanent Injunction and for Damages Enhancements, # (2) Declaration Musika Declaration, # (3) Exhibit 1, # (4) Exhibit 2, # (5) Exhibit 3, # (6) Exhibit 4, # (7) Exhibit 5, # (8) Exhibit 6, # (9) Exhibit 7, # (10) Exhibit 8, # (11) Exhibit 9, # (12) Exhibit 10, # (13) Exhibit 11, # (14) Exhibit 12, # (15) Exhibit 13, # (16) Exhibit 14, # (17) Exhibit 15, # (18) Exhibit 16, # (19) Exhibit 17, # (20) Exhibit 18, # (21) Exhibit 19, # (22) Exhibit 20, # (23) Exhibit 21, # (24) Exhibit 22, # (25) Exhibit 23, # (26) Exhibit 24, # (27) Exhibit 25, # (28) Exhibit 26, # (29) Exhibit 27, # (30) Exhibit 28, # (31) Exhibit 29, # (32) Exhibit 30, # (33) Exhibit 31, # (34) Exhibit 32, # (35) Exhibit 33, # (36) Exhibit 34, # (37) Exhibit 35, # (38) Exhibit 36, # (39) Exhibit 37, # (40) Exhibit 38, # (41) Exhibit 39, # (42) Exhibit 40, # (43) Exhibit 41, # (44) Exhibit 42, # (45) Exhibit 43, # (46) Exhibit 44, # (47) Exhibit 45, # (48) Exhibit 46, # (49) Exhibit 47, # (50) Exhibit 48, # (51) Exhibit 49, # (52) Exhibit 50, # (53) Exhibit 51, # (54) Exhibit 52, # (55) Exhibit 53, # (56) Exhibit 54, # (57) Exhibit 55, # (58) Exhibit 56, # (59) Exhibit 57, # (60) Exhibit 58, # (61) Exhibit 59, # (62) Exhibit 60, # (63) Exhibit 61, # (64) Exhibit 62, # (65) Exhibit 63, # (66) Exhibit 64, # (67) Exhibit 65, # (68) Exhibit 66, # (69) Exhibit 67, # (70) Exhibit 68, # (71) Declaration Robinson Declaration, # (72) Exhibit 1, # (73) Exhibit 2, # (74) Exhibit 3, # (75) Exhibit 4, # (76) Exhibit 5, # (77) Exhibit 6, # (78) Exhibit 7, # (79) Exhibit 8, # (80) Exhibit 9, # (81) Exhibit 10, # (82) Exhibit 11, # (83) Exhibit 12, # (84) Exhibit 13, # (85) Exhibit 14, # (86) Exhibit 15, # (87) Exhibit 16, # (88) Exhibit 17, # (89) Exhibit 18, # (90) Exhibit 19, # (91) Exhibit 20, # (92) Exhibit 21, # (93) Exhibit 22, # (94) Exhibit 23, # (95) Exhibit 24, # (96) Exhibit 25, # (97) Exhibit 26, # (98) Exhibit 27, # (99) Exhibit 28, # (100) Exhibit 29, # (101) Exhibit 30, # (102) Exhibit 31, # (103) Exhibit 32 Notice of Manual Filing, # (104) Exhibit 33 Notice of Manual Filing, # (105) Exhibit 34, # (106) Exhibit 35, # (107) Exhibit 36, # (108) Exhibit 37, # (109) Exhibit 38, # (110) Proposed Order)(Jacobs, Michael) (Filed on 9/21/2012)

1983 - Filed & Entered: 09/21/2012
Declaration in Support
Docket Text: Declaration of Jason Bartlett in Support of [1982] Administrative Motion to File Under Seal Bartlett Declaration in Support of Apple's Motion for Preliminary Injunction and Damages Enhancement filed byApple Inc.. (Attachments: # (1) Exhibit 1, # (2) Exhibit 2, # (3) Exhibit 3, # (4) Exhibit 4-1, # (5) Exhibit 4-2, # (6) Exhibit 4-3, # (7) Exhibit 4-4, # (8) Exhibit 4-5, # (9) Exhibit 5, # (10) Exhibit 6, # (11) Exhibit 7, # (12) Exhibit 8, # (13) Exhibit 9)(Related document(s)[1982]) (Jacobs, Michael) (Filed on 9/21/2012)

1984 - Filed & Entered: 09/21/2012
Declaration in Support
Docket Text: Declaration of Christopher Crouse in Support of [1982] Administrative Motion to File Under Seal Crouse Declaration in Support of Apple's Motion for Permanent Injunction filed byApple Inc.. (Related document(s)[1982]) (Jacobs, Michael) (Filed on 9/21/2012)

1985 - Filed & Entered: 09/21/2012
Declaration in Support
Docket Text: Declaration of Philip Schiller in Support of [1982] Administrative Motion to File Under Seal Schiller Declaration in Support of Apple's Motion for Permanent Injunction filed byApple Inc.. (Attachments: # (1) Exhibit 1 Notice of Manual Filing, # (2) Attachment 1, # (3) Attachment 2, # (4) Attachment 3, # (5) Attachment 4, # (6) Attachment 5, # (7) Attachment 6, # (8) Attachment 7)(Related document(s)[1982]) (Jacobs, Michael) (Filed on 9/21/2012)

1986 - Filed & Entered: 09/21/2012
Declaration in Support
Docket Text: Declaration of Russell Winer in Support of [1982] Administrative Motion to File Under Seal Winer Declaration in Support of Apple's Motion for a Permanent Injunction filed byApple Inc.. (Related document(s)[1982]) (Jacobs, Michael) (Filed on 9/21/2012)

1987 - Filed & Entered: 09/21/2012
Proposed Order
Docket Text: Proposed Order re [1982] Administrative Motion to File Under Seal Proposed Order Granting Apple's Motion for a Permanent Injunction and Damages Enhancement by Apple Inc.. (Jacobs, Michael) (Filed on 9/21/2012)

1988 - Filed & Entered: 09/21/2012
Brief
Docket Text: Brief re [1965] Order on Motion for Miscellaneous Relief Samsung's Motion On Non-Jury Claims, Including Indefiniteness filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Declaration of B. Dylan Proctor, # (2) Exhibit 1, # (3) Exhibit 2, # (4) Exhibit 3, # (5) Exhibit 4, # (6) Exhibit 5, # (7) Exhibit 6, # (8) Exhibit 7, # (9) Exhibit 8, # (10) Exhibit 9, # (11) Exhibit 10, # (12) Exhibit 11, # (13) Exhibit 12, # (14) Exhibit 13, # (15) Exhibit 14, # (16) Exhibit 15, # (17) Exhibit 16, # (18) Exhibit 17, # (19) Exhibit 18, # (20) Exhibit 19, # (21) Proposed Order)(Related document(s)[1965]) (Maroulis, Victoria) (Filed on 9/21/2012)

1989 - Filed & Entered: 09/21/2012
Motion for Judgment as a Matter of Law
Docket Text: MOTION for Judgment as a Matter of Law Apple's Motion for Judgment as a Matter of Law (Renewed), New Trial, and Amended Judgment [FRCP 50, 59] filed by Apple Inc.. Motion Hearing set for 12/6/2012 01:30 PM in Courtroom 8, 4th Floor, San Jose before Hon. Lucy H. Koh. Responses due by 10/19/2012. Replies due by 11/9/2012. (Attachments: # (1) Declaration Kim Declaration, # (2) Exhibit A, # (3) Proposed Order)(Jacobs, Michael) (Filed on 9/21/2012)

1990 - Filed & Entered: 09/21/2012
Administrative Motion to File Under Seal
Docket Text: Administrative Motion to File Under Seal Samsung's Rules 50 and 59 Motion filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Declaration of Estrich ISO Admin. Mot.[Restricted], # (2) Proposed Order Granting Admin. Mot., # (3) Samsung's Rules 50 and 59 Motions, # (4) Declaration of Susan Estrich ISO Samsung's Rules 50 and 59 Motion, # (5) Exhibit A to Estrich, # (6) Exhibit B to Estrich, # (7) Exhibit C to Estrich, # (8) Exhibit D to Estrich, # (9) Exhibit E to Estrich, # (10) Exhibit F to Estrich, # (11) Exhibit G to Estrich, # (12) Exhibit H to Estrich, # (13) Exhibit I to Estrich, # (14) Exhibit J to Estrich, # (15) Exhibit K to Estrich, # (16) Exhibit L to Estrich, # (17) Exhibit M to Estrich, # (18) Exhibit N to Estrich, # (19) Exhibit O to Estrich, # (20) Declaration of Michael Wagner, # (21) Exhibit A to Wagner, # (22) Exhibit B to Wagner, # (23) Proposed Order Granting Samsung's Rules 50 and 59 Motions)(Estrich, Susan) (Filed on 9/21/2012)

1991 - Filed: 09/21/2012
Entered: 09/22/2012
Declaration in Support
Docket Text: Declaration of John Pierce in Support of [1990] Administrative Motion to File Under Seal Samsung's Rules 50 and 59 Motion Declaration of John Pierce in Support of Samsung's Rules 50 and 59 Motion filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Exhibit 1 to Pierce, # (2) Exhibit 2 to Pierce, # (3) Exhibit 3 to Pierce, # (4) Exhibit 4 to Pierce, # (5) Exhibit 5 to Pierce, # (6) Exhibit 6 to Pierce, # (7) Exhibit 7 to Pierce, # (8) Exhibit 8 to Pierce, # (9) Exhibit 9 to Pierce, # (10) Exhibit 10 to Pierce, # (11) Exhibit 11 to Pierce, # (12) Exhibit 12 to Pierce, # (13) Exhibit 13 to Pierce, # (14) Exhibit 14 to Pierce, # (15) Exhibit 15 to Pierce, # (16) Exhibit 16 to Pierce, # (17) Exhibit 17 to Pierce, # (18) Exhibit 18 to Pierce, # (19) Exhibit 19 to Pierce, # (20) Exhibit 20 to Pierce, # (21) Exhibit 21 to Pierce, # (22) Exhibit 22 to Pierce, # (23) Exhibit 23 to Pierce, # (24) Exhibit 24 to Pierce, # (25) Exhibit 25 to Pierce, # (26) Exhibit 26 to Pierce, # (27) Exhibit 27 to Pierce, # (28) Exhibit 28 to Pierce, # (29) Exhibit 29 to Pierce, # (30) Exhibit 30 to Pierce, # (31) Exhibit 31 to Pierce, # (32) Exhibit 32 to Pierce, # (33) Exhibit 33 to Pierce, # (34) Exhibit 34 to Pierce, # (35) Exhibit 35 to Pierce, # (36) Exhibit 36 to Pierce, # (37) Exhibit 37 to Pierce, # (38) Exhibit 38 to Pierce, # (39) Exhibit 39 to Pierce, # (40) Exhibit 40 to Pierce, # (41) Exhibit 41 to Pierce, # (42) Exhibit 42 to Pierce, # (43) Exhibit 43 to Pierce, # (44) Exhibit 44 to Pierce, # (45) Exhibit 45 to Pierce, # (46) Exhibit 46 to Pierce, # (47) Exhibit 47 to Pierce, # (48) Notice of Manual Filing)(Related document(s)[1990]) (Estrich, Susan) (Filed on 9/21/2012)

1992 - Filed & Entered: 09/22/2012
Declaration in Support
Docket Text: Declaration of Jason Bartlett in Support of [1982] Administrative Motion to File Under Seal CORRECTION OF DOCKET #[1983]. filed by Apple Inc.. (Attachments: # (1) Exhibit 1, # (2) Exhibit 2, # (3) Exhibit 3, # (4) Exhibit 4-1, # (5) Exhibit 4-2, # (6) Exhibit 4-3, # (7) Exhibit 4-4, # (8) Exhibit 4-5, # (9) Exhibit 5, # (10) Exhibit 6, # (11) Exhibit 7, # (12) Exhibit 8, # (13) Exhibit 9)(Related document(s)[1982]) (Jacobs, Michael) (Filed on 9/22/2012)

1993 - Filed & Entered: 09/22/2012
Declaration in Support
Docket Text: Declaration of John Pierce in Support of [1990] Administrative Motion to File Under Seal Samsung's Rules 50 and 59 Motion, [1991] Declaration in Support,,,,,,, Corrected Declaration of John Pierce in Support of Samsung's Rules 50 and 59 Motion filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Exhibit 48 to Pierce, # (2) Exhibit 49 to Pierce)(Related document(s)[1990], [1991]) (Estrich, Susan) (Filed on 9/22/2012)


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