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Apple v Samsung - The Post-Trial Battles Intensify ~pj Updated - How Both Sides View Foreman's Voir Dire
Saturday, October 20 2012 @ 11:46 AM EDT

The Apple v. Samsung battle is being fought just as hard after the trial as before it and during it. Maybe harder. If you've ever wondered how it would look if your lawyer really fought hard for you, this is how. Both sides are doing everything they can think of for their client, but particularly Samsung. It's quite a sight, I must say.

So many new filings. So many exhibits. I'm still working on getting them all uploaded and after that I'll comment on whatever I see that I think you'd be most interested in, but there are enough PDFs already uploaded to post the list now and let you know what is coming. We can read them together. But I see that Samsung is asking the court to let it use discovery materials from the other Apple v. Samsung case still in the discovery process pre-trial. Here's why, as Samsung's motion, No. 2070 [PDF] in the docket, puts it:

PLEASE TAKE NOTICE that Defendants Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., and Samsung Telecommunications America, LLC (collectively “Samsung”) shall and hereby do move the Court for an Order permitting Samsung to use certain specified discovery obtained in Case No. 12-630 in connection with Samsung’s Opposition to Apple’s Motion for Permanent Injunction. The discovery material at issue is highly relevant to the post-trial motions in this dispute and has already been disclosed in another case pending before this same Court involving the same parties and related issues, such that Apple has no good faith basis for refusing to allow Samsung to use such information herein. The information from Case No. 12-630 that Apple seeks to suppress is especially important in light of the Federal Circuit’s recent reversal of an injunction awarded Apple in that same case. Apple Inc. v. Samsung Elecs. Co., Ltd., __ F.3d __, 2012 WL 4820601 (Fed. Cir. Oct. 11, 2012).
Also, I see Apple claims [PDF] that no new trial is warranted by the jury foremen's answers during voir dire, because Samsung "waived these objections because it knew of or could have discovered the alleged 'lies' before the verdict." The foreman mentioned he'd worked for Seagate and Samsung knew that there was a bankruptcy, so Samsung, I gather the argument goes, should have done its research sooner. The juror made an "honest mistake". As for his post-verdict comments to the press about IP, they were "balanced, not biased". Not really, when you consider when the judge in voir dire asked if anyone had strong feelings about patents and IP, he said nothing. But post-verdict, he showed he does indeed have strong feelings pro patents. As for bringing in extraneous materials, Apple argues that juror deliberations are so sacred, they can't be touched. No new trial is warranted and no evidentiary hearing should be held.

If you notice something, do highlight it in your comments. Here are the latest filings, and I'll be uploading shortly the ones that are not yet linked:
2043 - Filed & Entered: 10/15/2012
NOTICE OF ERRATA REGARDING SAMSUNG'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF [2013] ITS MOTION FOR JUDGMENT AS A MATTER OF LAW, NEW TRIAL AND/OR REMITTITUR PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE 50 AND 59 by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC (Estrich, Susan) (Filed on 10/15/2012) Modified on 10/16/2012 linking entry to document #2013 (dhmS, COURT STAFF).

2044 - Filed & Entered: 10/16/2012
Transcript of Proceedings held on 10/10/2012, before Judge Paul S. Grewal. Court Reporter/Transcriber Summer Fisher, Telephone number 408-288-6150. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 1/14/2013. (Fisher, Summer) (Filed on 10/16/2012)

2045 - Filed & Entered: 10/16/2012
Terminated: 10/18/2012
Administrative Motion to File Under Seal EXPEDITED MOTION FOR ADMINISTRATIVE RELIEF BY NONPARTY SPRINT SPECTRUM, L.P. TO SEAL DOCUMENT IN PART filed by Sprint Spectrum, L.P.. (Attachments: # (1) Declaration, # (2) Exhibit, # (3) Declaration, # (4) Proposed Order)(Chang, Andrew) (Filed on 10/16/2012)

2046 - Filed & Entered: 10/16/2012
ORDER by Judge Lucy H. Koh granting [1979] Administrative Motion to File Under Seal; granting in part and denying in part [1980] Administrative Motion to File Under Seal (lhklc2, COURT STAFF) (Filed on 10/16/2012)

2047 - Filed & Entered: 10/17/2012
ORDER by Judge Lucy H. Koh granting in part and denying in part [1982] Administrative Motion to File Under Seal (lhklc2, COURT STAFF) (Filed on 10/17/2012)

2048 Filed & Entered: 10/18/2012
ORDER GRANTING SPRINT SPECTRUM, L.P.'S MOTION TO SEAL DOCUMENT IN PART by Judge Paul S. Grewal granting [2045] Administrative Motion to File Under Seal (psglc2, COURT STAFF) (Filed on 10/18/2012)

2049 - Filed & Entered: 10/18/2012
NOTICE by Apple Inc. re [1978] Order on Administrative Motion to File Under Seal,,,,,,,, Exhibit 24 to the Declaration Of S. Calvin Walden In Support Of Apples Motion To Compel Depositions Of 14 Of Samsungs Purported Apex Witnesses (Dkt. No. 737-2) Previously Filed Under Seal (Attachments: # (1) Exhibit 42 To The Declaration Of Mia Mazza In Support Of Apples Motion To Compel Depositions Of 14 Of Samsungs Purported Apex Witnesses (Dkt. No. 736-3) Previously Filed Under Seal, # (2) Exhibit 43 To The Declaration Of Mia Mazza In Support Of Apples Motion To Compel Depositions Of 14 Of Samsungs Purported Apex Witnesses (Dkt. No. 736-3) Previously Filed Under Seal)(Bartlett, Jason) (Filed on 10/18/2012) [PJ: Note that what they filed as #2049 as a Notice is not. It's an exhibit, Exhibit 24, but to what I don't know.]

2050 - Filed & Entered: 10/19/2012
RESPONSE (re [2013] MOTION for Judgment as a Matter of Law, New Trial and/or Remittitur Pursuant to Federal Rules of Civil Procedure 50 and 59 ) Apples Opposition To Samsungs Motion For JMOL, New Trial, And/Or Remittitur (Fed. R. Civ. P. 50 & 59) filed byApple Inc.. (Jacobs, Michael) (Filed on 10/19/2012)

2051 - Filed & Entered: - 10/19/2012
Declaration of Mark D. Selwyn in Support of [2050] Opposition/Response to Motion, Declaration of Mark D. Selwyn In Support of Apple's Opposition to Samsung's JMOL, New Trial, and Remittitur Motion filed byApple Inc.. (Attachments: # (1) Exhibit 1)(Related document(s)[2050]) (Selwyn, Mark) (Filed on 10/19/2012)

2052 - Filed & Entered: 10/19/2012
OBJECTIONS to re [2042] Reply to Opposition/Response,, Apple's Objections to Evidence in Samsung's Reply in Support of Motion on Non-Jury Claims, Including Indefiniteness by Apple Inc.. (Jacobs, Michael) (Filed on 10/19/2012)

2053 - Filed & Entered: 10/19/2012
RESPONSE (re [2002] CORRECTED MOTION for Judgment as a Matter of Law (Renewed), New Trial, And Amended Judgment [FRCP 50, 59] ) SAMSUNG'S OPPOSITION TO APPLE'S MOTION FOR JUDGMENT AS A MATTER OF LAW, NEW TRIAL, AND AMENDED JUDGMENT filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Estrich, Susan) (Filed on 10/19/2012)

2054 Filed & Entered: 10/19/2012
Brief in Opposition to Apple's Motion for Permanent Injunction and Damages Enhancements filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Declaration of Tulin Erdem, # (2) Declaration of Stephen Gray, # (3) Declaration of R. Sukumar, # (4) Declaration of Jerry Wind, # (5) Declaration of Andries Van Dam)(Estrich, Susan) (Filed on 10/19/2012)

2055 - Filed & Entered: 10/19/2012
Declaration of Hee-Chan Choi in Support of [2053] Opposition/Response to Motion, [2054] Brief, filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Related document(s)[2053], [2054]) (Estrich, Susan) (Filed on 10/19/2012)

2056 - Filed & Entered: 10/19/2012
Declaration of David Kim in Support of [2053] Opposition/Response to Motion, [2054] Brief, filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Related document(s)[2053], [2054]) (Estrich, Susan) (Filed on 10/19/2012)

2057 - Filed & Entered: 10/19/2012
Declaration of Sam Lucente in Support of [2053] Opposition/Response to Motion, [2054] Brief, filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Related document(s)[2053], [2054]) (Estrich, Susan) (Filed on 10/19/2012)

2058 Filed & Entered: 10/19/2012
Declaration of John Pierce in Support of [2053] Opposition/Response to Motion, filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Related document(s)[2053]) (Maroulis, Victoria) (Filed on 10/19/2012)

2059 - Filed & Entered: 10/19/2012
Declaration of Michael Wagner in Support of [2053] Opposition/Response to Motion, WAGNER DEC IN SUPPORT OF SAMSUNG'S OPPOSITION TO APPLE'S MOTION FOR JUDGMENT AS A MATTER OF LAW, NEW TRIAL, AND AMENDED JUDGMENT AND EXS A-E filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Related document(s)[2053]) (Maroulis, Victoria) (Filed on 10/19/2012)

2060 - Filed & Entered: 10/19/2012
Declaration of Corey Kerstetter in Support of [2053] Opposition/Response to Motion, [2054] Brief, filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Related document(s)[2053], [2054]) (Estrich, Susan) (Filed on 10/19/2012)

2061 - Filed: 10/19/2012; Entered: 10/20/2012
Declaration of John M. Pierce in Support of [2054] Brief, filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Related document(s)[2054]) (Estrich, Susan) (Filed on 10/19/2012)

2062 - Filed: 10/19/2012; Entered: 10/20/2012
EXHIBITS re [2058] Declaration in Support, Exhibits to Pierce Declaration in Support of Samsung's Opposition to Apple's Motion for Judgment as a Matter of Law, New Trial, and Amended Judgment filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Exhibit 1-11 to Pierce Dec ISO Samsung's Opp. to JMOL, # (2) Exhibit 12 to Pierce Dec ISO Samsung's Opp. to JMOL, # (3) Exhibit 13 to Pierce Dec ISO Samsung's Opp. to JMOL, # (4) Exhibit 14-19 to Pierce Dec ISO Samsung's Opp. to JMOL, # (5) Exhibit 20 to Pierce Dec ISO Samsung's Opp. to JMOL, # (6) Exhibit 21-24 to Pierce Dec ISO Samsung's Opp. to JMOL, # (7) Exhibit 25 to Pierce Dec ISO Samsung's Opp. to JMOL, # (8) Exhibit 26-28 to Pierce Dec ISO Samsung's Opp. to JMOL, # (9) Exhibit 29-33 to Pierce Dec ISO Samsung's Opp. to JMOL, # (10) Exhibit 34-65 to Pierce Dec ISO Samsung's Opp. to JMOL)(Related document(s)[2058]) (Maroulis, Victoria) (Filed on 10/19/2012)

2063 - Filed & Entered: 10/20/2012
EXHIBITS re [2061] Declaration in Support, of Samsung's Opposition to Apple's Motion for Preliminary Injunction and Damages Enhancement filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Exhibit 1, # (2) Exhibit 2, # (3) Exhibit 3, # (4) Exhibit 4, # (5) Exhibit 5, # (6) Exhibit 8, # (7) Exhibit 9, # (8) Exhibit 10, # (9) Exhibit 11, # (10) Exhibit 14, # (11) Exhibit 15, # (12) Exhibit 16, # (13) Exhibit 17, # (14) Exhibit 18, # (15) Exhibit 19, # (16) Exhibit 20, # (17) Exhibit 21, # (18) Exhibit 44, # (19) Exhibit 45, # (20) Exhibit 46, # (21) Exhibit 47)(Related document(s)[2061]) (Estrich, Susan) (Filed on 10/20/2012)

2064 - Filed & Entered: 10/20/2012
Administrative Motion to File 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 Administrative Motion to File Under Seal)(Maroulis, Victoria) (Filed on 10/20/2012)

2065 - Filed & Entered: 10/20/2012
Declaration of Michael J. Wagner in Support of [2054] Brief, in Opposition to Apple's Motion for Permanent Injunction and Damages Enhancement filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Appendix Manual Filing Notification, # (2) Exhibit 3, # (3) Exhibit 8, # (4) Exhibit 14, # (5) Exhibit 15, # (6) Exhibit 16, # (7) Exhibit 17, # (8) Exhibit 18, # (9) Exhibit 20, # (10) Exhibit 21, # (11) Exhibit 23, # (12) Exhibit 26, # (13) Exhibit 27, # (14) Exhibit 33, # (15) Exhibit 35, # (16) Exhibit 36, # (17) Exhibit 39, # (18) Exhibit 40, # (19) Exhibit 41, # (20) Exhibit 43, # (21) Exhibit 44, # (22) Exhibit 45, # (23) Exhibit 48, # (24) Exhibit 49, # (25) Exhibit 50, # (26) Exhibit 51, # (27) Exhibit 52, # (28) Exhibit 53, # (29) Exhibit 56, # (30) Exhibit 57)(Related document(s)[2054]) (Estrich, Susan) (Filed on 10/20/2012)

2066 - Filed & Entered: 10/20/2012
EXHIBITS re [2065] Declaration in Support,,, filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Exhibit 57, # (2) Exhibit 59, # (3) Exhibit 60, # (4) Exhibit 61, # (5) Exhibit 62, # (6) Exhibit 63, # (7) Exhibit 64, # (8) Exhibit 66, # (9) Exhibit 67, # (10) Exhibit 68, # (11) Exhibit 69, # (12) Exhibit 70, # (13) Exhibit 73, # (14) Exhibit 74, # (15) Exhibit 75, # (16) Exhibit 76, # (17) Exhibit 77, # (18) Exhibit 78, # (19) Exhibit 79, # (20) Exhibit 80, # (21) Exhibit 81, # (22) Exhibit 82, # (23) Exhibit 88, # (24) Exhibit 89, # (25) Exhibit 90, # (26) Exhibit 91, # (27) Exhibit 94, # (28) Exhibit 95, # (29) Exhibit 96, # (30) Exhibit 97, # (31) Exhibit 98, # (32) Exhibit 99, # (33) Exhibit 100)(Related document(s)[2065]) (Estrich, Susan) (Filed on 10/20/2012)

2067 - Filed & Entered: 10/20/2012
EXHIBITS re [2065] Declaration in Support,,, in Opposition to Apple's Motion for Permanent Injunction and Damages Enhancement filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Exhibit 101, # (2) Exhibit 102, # (3) Exhibit 103, # (4) Exhibit 104, # (5) Exhibit 105, # (6) Exhibit 106, # (7) Exhibit 108, # (8) Exhibit 109, # (9) Exhibit 110, # (10) Exhibit 111, # (11) Exhibit 112, # (12) Exhibit 113, # (13) Exhibit 114, # (14) Exhibit 115, # (15) Exhibit 116, # (16) Exhibit 117, # (17) Exhibit 118, # (18) Exhibit 119, # (19) Exhibit 120, # (20) Exhibit 121, # (21) Exhibit 122, # (22) Exhibit 123, # (23) Exhibit 124, # (24) Exhibit 125, # (25) Exhibit 126, # (26) Exhibit 127, # (27) Exhibit 128, # (28) Exhibit 129, # (29) Exhibit 130, # (30) Exhibit 131)(Related document(s)[2065]) (Estrich, Susan) (Filed on 10/20/2012)

2068 - Filed & Entered: 10/20/2012
EXHIBITS re [2065] Declaration in Support,,, in Opposition to Apple's Motion for Permanent Injunction and Damages Enhancement filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Exhibit 132, # (2) Exhibit 133, # (3) Exhibit 134, # (4) Exhibit 135, # (5) Exhibit 136, # (6) Exhibit 137, # (7) Exhibit 138, # (8) Exhibit 139, # (9) Exhibit 140, # (10) Exhibit 141, # (11) Exhibit 142, # (12) Exhibit 143, # (13) Exhibit 144, # (14) Exhibit 145, # (15) Exhibit 146, # (16) Exhibit 147, # (17) Exhibit 148, # (18) Exhibit 149, # (19) Exhibit 150, # (20) Exhibit 151, # (21) Exhibit 152, # (22) Exhibit 153, # (23) Exhibit 154, # (24) Exhibit 155, # (25) Exhibit 156, # (26) Exhibit 157, # (27) Exhibit 158, # (28) Exhibit 159, # (29) Exhibit 160)(Related document(s)[2065]) (Estrich, Susan) (Filed on 10/20/2012)

2069 - Filed & Entered: 10/20/2012
EXHIBITS re [2065] Declaration in Support,,, in Opposition to Apple's Motion for Permanent Injunction and Damages Enhancement filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Exhibit 161, # (2) Exhibit 162, # (3) Exhibit 163, # (4) Exhibit 164, # (5) Exhibit 165, # (6) Exhibit 166, # (7) Exhibit 167, # (8) Exhibit 168, # (9) Exhibit 169, # (10) Exhibit 170, # (11) Exhibit 171, # (12) Exhibit 172, # (13) Exhibit 173, # (14) Exhibit 174, # (15) Exhibit 176, # (16) Exhibit 177, # (17) Exhibit 178, # (18) Exhibit 179, # (19) Exhibit 180, # (20) Exhibit 181, # (21) Exhibit 182, # (22) Exhibit 184, # (23) Exhibit 185, # (24) Exhibit 186, # (25) Exhibit 187, # (26) Exhibit 188, # (27) Exhibit 192, # (28) Exhibit 194, # (29) Exhibit 196, # (30) Exhibit 209, # (31) Exhibit 210, # (32) Exhibit 211)(Related document(s)[2065]) (Estrich, Susan) (Filed on 10/20/2012)

2070 - Filed & Entered: 10/20/2012
MOTION Cross-Use of Discovery Materials From Case No. 12-630 filed by Samsung Electronics America, Inc.(a New York corporation). Motion Hearing set for 11/29/2012 01:30 PM in Courtroom 8, 4th Floor, San Jose before Hon. Lucy H. Koh. Responses due by 11/5/2012. Replies due by 11/13/2012. (Stretch, Christopher) (Filed on 10/20/2012)

2071 - Filed & Entered: 10/20/2012
MOTION to Shorten Time For Briefing on Motion for Cross-Use of Discovery filed by Samsung Electronics America, Inc.(a New York corporation). (Stretch, Christopher) (Filed on 10/20/2012)

2072 - Filed & Entered: 10/20/2012
Declaration of Joby Martin in Support of [2071] MOTION to Shorten Time For Briefing on Motion for Cross-Use of Discovery filed bySamsung Electronics America, Inc.(a New York corporation). (Attachments: # (1) Exhibit Exhibit 1)(Related document(s)[2071]) (Stretch, Christopher) (Filed on 10/20/2012)

Update: Whew. If you note any mistakes, let me know. I did my best, but with so many documents and my natural humanness, there could be some errors. But I'll correct them, if you bring them to my attention.

Earlier, we had a declaration [PDF] by a Samsung lawyer, Michael Zeller, with an exhibit [PDF] that was originally filed sealed but opened to the public by the judge, and he told the court when and how Samsung learned about the jury foreman's secret litigious past:

I, Michael T. Zeller, declare as follows:

1. I am a member of the State Bars of California, New York and Illinois, admitted to practice before this Court, and a partner at Quinn Emanuel Urquhart & Sullivan, LLP, counsel for Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., and Samsung Telecommunications America, LLC (collectively “Samsung”). Unless otherwise indicated, I have personal knowledge of the facts set forth in this declaration and, if called upon as a witness, I would testify to such facts under oath.

2. I submit this declaration in response to Apple’s request for additional information concerning the timing of Samsung’s knowledge of facts related to Velvin Hogan’s litigation with Seagate. Nothing herein is intended as a waiver of privilege or work product protections, and this declaration is expressly subject to, and is expressly given in reliance upon, Apple's promise and agreement that disclosure of this information is not and will not be argued to be a waiver.

3. Samsung had no knowledge of Velvin Hogan’s litigation against Seagate until after the jury verdict was rendered in this case. Samsung did not know until after the verdict that Mr. Hogan had ever been in litigation with Seagate, had been a defendant to claims brought by Seagate or had filed his own claims against Seagate. Not having been aware of the litigation between Mr. Hogan and Seagate until after the verdict, Samsung also did not know until after that time that the attorney who represented Seagate in that litigation was Michael Grady. Samsung also had no information regarding Mr. Hogan’s influence on the verdict or the jury’s decision-making process until after the verdict. After the verdict, Mr. Hogan made numerous statements to the press. Samsung learned the information set forth above only after Mr. Hogan began making those public statements.

4. More specifically, after the verdict and after the publication of press accounts raising questions about Mr. Hogan's impartiality, Samsung requested and subsequently received on September 10, 2012 a copy of the bankruptcy court file from In re Velvin R. Hogan and Carol K. Hogan, Case No. 93-58291-MM (Bankr. N.D. Cal. Dec. 27, 1993), a copy of which is Dkt. No. 1990 (“Estrich Decl.”) Ex. B. That bankruptcy court file included papers showing that Seagate Technology, Inc. had filed litigation against Mr. Hogan in Seagate Tech., Inc. v. Hogan, MS 93-

1

0919 (Santa Cruz Sup. Ct.) (attached as Exhibit A to the Estrich Decl., Dkt. 1990). This was the first time Samsung learned of any litigation between Mr. Hogan and Seagate. These same papers in the bankruptcy court file showed that Seagate’s attorney in the lawsuit was Michael Grady, a fact which Samsung also had not known prior to the verdict and prior to obtaining the bankruptcy court file.

5. After receiving the bankruptcy court file, Samsung ordered a copy of the Seagate Tech., Inc. v. Hogan court file that was referenced in the bankruptcy court file. Samsung learned on September 11, 2012 that the Seagate Tech., Inc. v. Hogan file had not been retained by the court. On September 26, 2012, Reuters published an interview with Mr. Hogan in which Mr. Hogan stated that he sued Seagate for alleged fraud. Samsung learned of this fraud claim by Mr. Hogan against Seagate for the first time through that Reuters' article, a copy of which is attached as Exhibit B to the Supplemental Estrich Declaration in Support of Samsung’s Motion for Judgment as a Matter of Law, New Trial and/or Remittitur, filed on October 1, 2012.

I declare under penalty of perjury that the foregoing is true and correct.

Executed in Los Angeles, California on October 1, 2012.

By: /s/ Michael T. Zeller
Michael T. Zeller

2

Attached to this declaration is Exhibit C, emails between the Apple and Samsung lawyers with Apple trying to get Samsung details on when it first learned of the foreman's bankruptcy. The declaration wasn't acceptable to Apple, because it didn't include that detail, so Apple threatens in the email thread to file a motion, which in the end it did. Exhibit D is the bankruptcy records and other personal data as found on LexisNexis. If LexisNexis doesn't creep you out, you are unable to sufficiently extrapolate. Exhibit E is press about the foreman, such as a Yahoo! News article from August, "Apple-Samsung court verdict under cloud as jury foreman found to have own smartphone patents":
The jury foreman in Apple's landmark legal victory over Samsung, has a patent in his own name for a device that can be used in smart phones and tablets, it has emerged.

Velvin Hogan reportedly filed documents with the US Patent Office in 2002 for the 'method and apparatus for recording and storing video information'. This also included technology for a wireless keyboard to allow users to surf the web and order films on demand, a feature, which is already available on Apple iPads.

According to the Daily Mail, the disclosure has raised a huge potential conflict of interest as it is not clear if the patent has ever been bought or used by any tech companies.

There are other articles too, all of them about whether the verdict was tainted. Exhibit F is a Reuters article on the same topic, with this detail: "Hogan said he sued Seagate for fraud, Seagate countersued, and he ultimately declared personal bankruptcy to protect his house." Exhibit G is the Bloomgerg article on Samsung's claims of jury taint. Exhibit H is the Seagate complaint for breach of contract and the bankruptcy filing showing Seagate's claim there regarding an unpaid loan in the amount of $25,000. Exhibit I is the bankruptcy filing of the foreman in 1993, with no record of a fraud action, despite Seagate's complaint being listed and the case listed as "pending". You'd think it would be found somewhere, but so far I've been unable to confirm it.

To Seal or Not to Seal - The Microsoft License Agreement:

As you can see in Docket #2043, Judge Koh's order on the question of whether to grant requests to seal, this is turning into a big deal, with an appeal and now some amicus briefs filed by journalists, asking the Federal Circuit to uphold Judge Koh's denial of certain sealing requests. Samsung had asked [PDF] to file as sealed some documents involving Intel, Ericsson, and Microsoft. Here's the request regarding Microsoft:

In addition, Samsung moves for an order to seal:

5. Exhibit 10 to the Declaration of Curran M. Walker in Support of Samsung's Objections and Responses Regarding Exhibits and Deposition Designations Disclosed on August 15, 2012, containing excerpts of the May 16, 2012 deposition of Microsoft employee Bryan Agnetta (ECF 1781-24) The above document discusses and refers to information which Microsoft has designated as HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY, under the Protective Order. Samsung expects that Microsoft will file the declaration required by Civil Local Rule 79-5(d) establishing these documents as sealable.

Judge Koh said yes to Intel and Ericsson (redactions OK), and no to Microsoft, because it turns out it never filed the necessary form:
Third, Microsoft has not filed a declaration as required by Civil Local Rule 79-5(d). Accordingly, Samsung’s motion is DENIED without prejudice as to Exhibit 10 to the Declaration of Curran M. Walker in Support of Samsung’s Objections and Responses Regarding Exhibits and Deposition Designations.
Then in a second order, #2047, Judge Koh denied Apple's motion to keep its financial information in support of its motion for damages sealed, saying that public interest was too high. This is the issue that is before the Federal Circuit:
Specifically, the Court addressed Apple’s request to seal its financial information, including product-specific profits, profit margins, unit sales, revenue, and costs. See August 9 Order at 5. The Court ruled that it was “not persuaded that Apple’s interest in sealing its financial data outweighs the public’s interest in accessing this information,” id., and that “the financial information that Apple seeks to seal is essential to each party’s damages calculations,” thus increasing its value to the public. Id. at 6. Accordingly, the Court denied Apple’s motion to seal a range of documents containing this type of financial information.

Apple then appealed this denial to the Federal Circuit. This Court stayed its August 9 Order with regard to the financial information until the Federal Circuit ruled on the parties’ motions to stay. ECF No. 1754. The Federal Circuit stayed this Court’s August 9 Order pending final resolution of the Appeal. Federal Circuit Case No. 12-1600, Dkt. No. 39. Thus, as of now, the information remains sealed.

Judge Koh then went on to grant certain requests to seal portions of certain documents, but she denied Apple's desire to redact financial information:
Finally, Apple seeks to redact product-specific unit sales, revenue, profit, profit margin, and cost data from its Damages Motion, as well as from the Robinson Declaration and Exhibit 8 to the Robinson Declaration. As this Court explained in the August 9 Order, Apple has not established that public availability of its product-specific unit sales, revenue, profit, profit margin, and cost data would actually provide its competitors with an advantage, as would be required to find the information sealable under the “compelling reasons” standard. August 9 Order at 5-6.

In seeking the very large damages award it sought at trial, Apple stipulated to the introduction of JX1500, a partial summary of its damages calculations, which contains some product-specific unit sales and revenue information. See ECF No. 1597. As Apple appears to have realized in introducing that exhibit, it cannot both use its financial data to seek multi-billion dollar damages and insist on keeping it secret.

Further, this Court previously found that the financial information was essential to Apple’s damages calculations, thus increasing the public’s interest in access. August 9 Order at 6. Apple’s present Damages Motion also requires detailed financial analysis, and the public’s interest in accessing Apple’s financial information is now perhaps even greater than it was at trial. Apple’s motion seeks to permanently enjoin the sale of 26 Samsung products that have already been on the market for varying lengths of time, and seeks an enhancement of $535 million on top of the $1.05 billion in damages awarded by the jury. Such remedies would have a profound effect on the smartphone industry, consumers, and the public. As the extensive media coverage indicates, this is a truly extraordinary case of exceptional interest to the public. Apple’s reasons would have to be very compelling indeed to overcome the unsually robust public interest in access.

Beyond continuing to assert that its financial data are “trade secrets,” Apple has not provided any new arguments for why this information should be protected. Accordingly, consistent with the August 9 Order, this Court finds that Apple’s unit sales, revenue, profit, profit margin, and cost data do not meet the “compelling reasons” standard. Apple’s motion to seal is DENIED as to the proposed redactions on page 27 of the Damages Motion, page 9 of the Robinson Declaration, and Exhibit 8 to the Robinson Declaration. For the reasons explained below, this denial is without prejudice.

However, she granted a stay, so as to let the Federal Circuit rule first on her order to unseal it, so Apple is not harmed in the event that the Federal Circuit overturns her order.

That's what the amicus briefs are about. I haven't read them carefully yet, but I see that one proposed brief [PDF] is by The Reporters Committee for Freedom of the Press; American Society of News Editors; Bloomberg L.P.; Dow Jones & Company, Inc.; Gannett Co., Inc.; The New York Times Company; Society of Professional Journalists; and The Washington Post. They ask permission to file the amicus brief, and here's the theme of it:

Amici have a strong interest in ensuring the right of public access to court proceedings, which includes documents in a case that has attracted significant public attention. Amici request that this Court consider the strong historical presumption in favor of open access to judicial proceedings and the access rights of the public and the press under the First Amendment. These rights, coupled with preserving the integrity of the patent process, counsel in favor of openness, and accordingly, this Court should affirm the unsealing orders issued by the district court.

Amici urge this Court to affirm the district court’s unsealing order. There is a general right of public access to judicial records and documents, and a strong presumption in the federal courts in favor of such access.

There is a note in the docket that the Federal Circuit has denied them leave to file at this time:
The brief submitted by pending Amici, The Reporters Committee for Freedom of the Press, et al. [51] cannot be filed at this time and is placed on the pending shelf; reason: Pending motion to file.
Samsung has filed a brief [PDF] and then a corrected brief [PDF] asking the court to overturn the unsealing of its documents or to allow redactions, saying the judge used the wrong legal standard. There is a list of all the documents Samsung wishes to keep sealed on page 17. And on page 71 of the PDF, Judge Koh's earlier order being appealed, we find out what it is that Microsoft wants to keep sealed:
Microsoft moves to seal information contained in the “Effective Date,” “Date Last Signed,” “Term,” “Licensed Products/Technology,” “Geographic Scope,” and “Payments” columns of trial exhibit DX630. Consistent with the principles articulated above, the Court GRANTS Microsoft’s motion with respect to the information contained in the “Payments” column, but DENIES it with respect to the information contained in the “Effective Date,” “Date Last Signed,” “Term” “Licensed Products/Technology,” and “Geographic Scope,” columns. Accordingly, Microsoft’s motion to seal is GRANED-IN-PART and DENIED-IN-PART.
And on page 68, we find out a bit more about what this is about:
The bulk of the third party sealing motions are directed towards two trial exhibits: PX77 and DX630. Both of these exhibits contain charts summarizing licensing agreements between the litigants and third parties. PX77 organizes this licensing agreement information into columns labeled “[Apple or Samsung] License Partner”; “Bates Range”; “Effective Date”; “Expiration Date”; “Term of Agreement”; “Monetary Consideration”; “Includes Rights to UMTS-Related Patents?”; “Includes Rights to Other Patents?”; and “Cross License?”. DX630 organizes this information into columns labeled “Licensee”; “Licensor”; “Title”; “Effective Date”; “Date Last Signed”; “Term”; “Licensed Products/Technology”; “Geographic Scope”; “Payments”; and “Source.” Consistent with Electronic Arts, the Court will grant motions to seal information in the “Monetary Consideration” column of the PX77 summary and the “Payments” column of the DX630 summary. The Court will deny motions to seal information in other columns of either summary. 298 Fed. App’x at 569 (“[P]ricing terms, royalty rates, and guaranteed minimum payment terms . . . plainly fall[] within the definition of ‘trade secrets.’”).

Although both PX77 and DX630 are Rule 1006 summaries, some of the third parties have also moved to redact substantial portions of the underlying license agreements on which these trial exhibits are based. Because these exhibits are summaries, however, the underlying documents, while admissible, are not being admitted into evidence themselves. Therefore, requests by third parties to seal the actual licensing agreements summarized in PX77 and DX630 are DENIED as moot.

It sounds like this includes the licensing agreement that Reuters got hold of and then fought to make public. It lost and chose not to appeal, but it looks like we are getting closer to being able to read it, depending on how the Federal Circuit rules.

The other proposed amicus brief [PDF] is by the First Amendment Coalition, which took up the baton that Reuters dropped:

Pursuant to Rule 29(b) of the Federal Rules of Appellate Procedure and Federal Circuit Rule 29(c), the First Amendment Coalition (the “Coalition”) moves this Court for leave to file the attached brief as amicus curiae in support of affirmance of the district court’s order granting in part and denying in part Appellant-Apple and Cross-Appellant-Samsung’s motions to seal certain documents in the proceedings below.

The Coalition previously moved to intervene in this appeal after Reuters America LLC, intervenor below, had notified the Court that it would not participate in this appeal. This Court issued an order on September 18, 2012 denying the Coalition’s motion to intervene, but stating that the Coalition “may move for leave to file a brief amicus curiae with the brief attached no later than 14 days after Samsung’s brief is file.”

This motion is filed in response to that order. The Coalition has conferred with counsel for Apple and Samsung concerning this motion. Apple does not oppose the Coalition’s motion. Samsung has authorized the Coalition to represent to the Court that Samsung “takes no position” on this motion.

The Coalition argues in favor of the public's right to know. I sincerely want that information made public, myself. I'm very interested in the financial terms of any license agreement Microsoft has made with any Linux vendor, purporting to license patents.

There are so many documents that I'll comment on them separately.


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