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Samsung Moves to Compel Apple to Reveal When It 1st Learned Jury Foreman Was "Untruthful" in Voir Dire ~pj
Friday, November 02 2012 @ 12:49 PM EDT

If you imagined for one minute that the Apple v. Samsung litigation was over, think again.

Samsung is fighting hard, in what I'd describe as a D-Day, Normandy invasion, take-the-beach-at-all-costs style, fighting to the max over every inch. Perhaps that's because the new lawyer added to the Samsung team from Quinn Emanuel, John Pierce, tasked with overseeing all the post-verdict motions, is an ex-Army officer. It definitely has that military feel.

I have a lot of documents to show you since our last look at developments, and the most important is a motion to compel [PDF] Apple to reveal when it first learned that the jury foreman "failed to disclose truthfully during voir dire that he had sued and been sued by his former employer, Seagate, despite the Court’s express question asking him whether he had ever been a party to any litigation".

It appears to my eyes that Samsung believes that it is at least possible that Apple may have known earlier than Samsung did and failed to speak up, because on what other basis would Apple claim that Samsung coulda/shoulda known? That's Apple's argument, that somehow Samsung failed in a duty to investigate earlier and hence waived its rights to complain. I mean, did Apple know? Or is it just an argument with nothing to support it? Either way, Samsung ought to prevail on this motion, and maybe on its request for a new trial, arguing that "The trial was tainted by the presence of a juror who was not truthful on an issue that goes directly to bias."

If Apple knew and failed to say anything, it's sanctionable, Samsung argues. And if Apple argues that Samsung had a duty to investigate the voir dire responses, did Apple believe it had the same duty? There's no such duty, Samsung says, but if Apple sincerely argues there is, did it investigate and find out during the trial and stay silent for a tactical benefit? If not, in what way has Samsung waived anything by not doing what Apple didn't do either? "By challenging the reasonableness of Samsung’s investigation, Apple has put the extent of its own knowledge and investigation at issue," Samsung writes.

Jump To Comments

[Motion as Text;
Filings]

Samsung, in its motion, argues it is entitled to know what Apple knew and when, in order to properly respond to Apple's arguments:

Samsung will respond in due course in its reply to this remarkable and untenable suggestion that it should have extra-judicially investigated a sitting juror’s bankruptcy despite its lack of relevance to any question asked on voir dire. But in order to have a full and fair opportunity to reply to Apple’s “waiver” argument, Samsung is entitled to know when Apple first learned of Mr. Hogan’s undisclosed Seagate litigation, including whether it knew of Mr. Hogan’s misstatements to the Court prior to Samsung’s post-trial motion and nonetheless concealed that knowledge from the Court. Apple’s answer to that question is relevant both to whether Apple complied with its obligation to disclose known misrepresentations to the Court and whether a reasonable litigant in this case should have discovered Mr. Hogan’s untruthfulness sooner than Samsung did. Apple has refused to disclose this information despite Samsung’s request. Samsung therefore respectfully requests that the Court compel Apple to disclose when it first learned of Mr. Hogan’s undisclosed Seagate litigation....

If Apple knew that Mr. Hogan’s statements were untruthful all along and stood silent in order to gain a tactical advantage from the seating of a biased juror, Apple’s misconduct would itself warrant sanction and relief and certainly must be disclosed. If, on the other hand, Apple, like Samsung, did not know that Mr. Hogan had been untruthful until after the verdict, that is relevant evidence that Samsung’s reliance on the presumptive veracity of Mr. Hogan’s voir dire responses during trial was reasonable. Apple cannot fault Samsung for not discovering juror untruthfulness while refusing to disclose whether and when Apple itself discovered this untruthfulness.

Samsung adds, by the way, that it has no evidence to show that Hogan sued Seagate, other than his statement to the media post-verdict, because the court records "no longer exist".

Apple had asked Samsung that same question, and Samsung provided the information, that it was only after he began talking to the media, revealing details that he had not mentioned in voir dire. But Apple -- who argues that there is no new trial needed because Samsung ought to have known earlier and hence somehow waived its right to complain -- simply refused [PDF] to answer Samsung's parallel question. I'll show you Samsung's motion to compel as text, because it's an important filing. Or, more accurately, it could prove to be important, if the motion is granted.

Court Docket - Here are all the recent filings in the District Court:

2083 - Filed & Entered: 10/23/2012
STIPULATION WITH PROPOSED ORDER re 2082 MOTION to Compel Depositions of Samsung's Declarants filed by Apple Inc.. (Attachments: # 1 Declaration Declaration of Eric Olson in Support of the Stipulation regarding the Schedule for Briefing Apple's Motion to Compel Depositions of Samsung's Declarants)(Jacobs, Michael) (Filed on 10/23/2012) Modified text on 10/24/2012 (dhmS, COURT STAFF). (Entered: 10/23/2012)

2084 - Filed & Entered: 10/24/2012
RESPONSE to 2052 Apple's Improper Objections to Evidence in Samsung's Reply in Support of Non-Jury Claims, Including Indefiniteness filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Related document(s) 2052 ) (Maroulis, Victoria) (Filed on 10/24/2012) Modified text on 10/25/2012 (dhmS, COURT STAFF). (Entered: 10/24/2012)

2085 - Filed & Entered: 10/24/2012
ORDER REGARDING SCHEDULE FOR BRIEFING APPLE'S MOTION TO COMPEL DEPOSITIONS by Judge Paul S. Grewal granting 2083 Stipulation (psglc2, COURT STAFF) (Filed on 10/24/2012) (Entered: 10/24/2012)

2086 - Filed & Entered: 10/24/2012
EMERGENCY MOTION BY NONPARTY MOTOROLA MOBILITY LLC TO STAY ENFORCEMENT OF MAGISTRATE'S OCTOBER 23, 2012 ORDER SETTING DEADLINE re 2040 filed by Motorola Mobility LLC. (Attachments: # 1 Declaration of Jennifer A. Golinveaux, # 2 Proposed Order, # 3 Certificate/Proof of Service)(Golinveaux, Jennifer) (Filed on 10/24/2012) Modified text on 10/25/2012 (dhmS, COURT STAFF). (Entered: 10/24/2012)

2087 - Filed & Entered: 10/25/2012
ORDER by Judge Lucy H. Koh granting in part and denying in part 2081 Motion for Reconsideration ; granting 2086 Ex Parte Application (lhklc2, COURT STAFF) (Filed on 10/25/2012) (Entered: 10/25/2012)

2088 - Filed & Entered: 10/25/2012
OPPOSITION to ( 2070 MOTION for Order Permitting Cross-Use of Discovery Materials From Case No. 12-630 ) filed by Apple Inc.. (Jacobs, Michael) (Filed on 10/25/2012) Modified text on 10/26/2012 (dhmS, COURT STAFF). (Entered: 10/25/2012)

2089 - Filed & Entered: 10/26/2012
Renewed Administrative Motion to File Documents Under Seal re Exhibits to the Musika Declaration in Support of Apple's Motion for Permanent Injunction filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # 1 Declaration of Hankil Kang)(Maroulis, Victoria) (Filed on 10/26/2012) Modified text on 10/29/2012 (dhmS, COURT STAFF). (Entered: 10/26/2012)

2090 - Filed & Entered: 10/26/2012
OPPOSITION to ( 2082 MOTION to Compel Depositions of Samsung's Declarants ) filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # 1 Proposed Order, # 2 Declaration of John Pierce, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3)(Maroulis, Victoria) (Filed on 10/26/2012) Modified text on 10/29/2012 (dhmS, COURT STAFF). (Entered: 10/26/2012)

2091 - Filed & Entered: 10/26/2012
Excerpted Replacement Exhibits 9, 10, 11, 12, 28, 29, 30, 31, 32, 34, 38, 47, 71, 72, 83, 85, 189, 191, 195, 206, 207, and 208 re 2065 Declaration in Support, filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Related document(s) 2065 ) (Estrich, Susan) (Filed on 10/26/2012) Modified text on 10/29/2012 (dhmS, COURT STAFF). (Entered: 10/26/2012)

2092 - Filed & Entered: 10/26/2012
ADMINISTRATIVE MOTION to Enlarge Page Limit for Reply In Support of Motion for Permanent Injunction and for Enhanced Damages filed by Apple Inc.. (Attachments: # 1 Declaration Richard Hung Declaration, # 2 Proposed Order)(Jacobs, Michael) (Filed on 10/26/2012) Modified text on 10/29/2012 (dhmS, COURT STAFF). (Entered: 10/26/2012)

2093 - Filed & Entered: 10/26/2012
ORDER by Judge Lucy H. Koh granting 2070 Motion Allowing cross-use of discovery (lhklc2, COURT STAFF) (Filed on 10/26/2012) (Entered: 10/26/2012)

2094 - Filed & Entered: 10/26/2012
Apples Memorandum Of Points And Authorities In Support Of 2064 Samsungs Administrative Motion To File Documents Under Seal filed by Apple Inc.. (Attachments: # 1 Proposed Order)(Bartlett, Jason) (Filed on 10/26/2012) Modified on 10/29/2012 linking entry to document #2064 (dhmS, COURT STAFF). (Entered: 10/26/2012)

2095 - Filed & Entered: 10/26/2012
Declaration Of Cyndi Wheeler In Support Of 2064 Samsungs Administrative Motion To File Documents Under Seal filed by Apple Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Bartlett, Jason) (Filed on 10/26/2012) Modified on 10/29/2012 linking entry to document #2064 (dhmS, COURT STAFF). (Entered: 10/26/2012)

2096 - Filed & Entered: 10/26/2012
Declaration Of Nathan Sabri In Support Of 2064 Samsungs Administrative Motion To File Documents Under Seal filed by Apple Inc.. (Attachments: # 1 Exhibit A)(Bartlett, Jason) (Filed on 10/26/2012) Modified on 10/29/2012 counsel failed to link entry to document #2064 (dhmS, COURT STAFF). (Entered: 10/26/2012)

2097 - Filed & Entered: 10/26/2012
Excerpted Replacement Exhibit 37 re 2065 Declaration filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Related document(s) 2065 ) (Estrich, Susan) (Filed on 10/26/2012) Modified text on 10/29/2012 (dhmS, COURT STAFF). (Entered: 10/26/2012)

2098 - Filed & Entered: 10/26/2012
OPPOSITION to ( 2092 MOTION to Enlarge Page Limit for Reply In Support of Motion for Permanent Injunction and for Enhanced Damages ) filed by Samsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Maroulis, Victoria) (Filed on 10/26/2012) Modified text on 10/29/2012 (dhmS, COURT STAFF). (Entered: 10/26/2012)

2099 - Filed & Entered: 10/28/2012
ADMINISTRATIVE MOTION for Leave to File Reply in Support of Motion to Enlarge Page Limit for Permanent Injunction and Enhanced Damages Reply filed by Apple Inc.. (Attachments: # 1 Exhibit A Exhibit A Apples Reply in Support of Administrative Motion to Enlarge Page Limit for Reply in Support of Motion for Permanent Injunction and for Enhanced Damages, # 2 Declaration Declaration of Richard S.J. Hung iso Apples Administrative Motion for Leave to File Reply in Support of Motion to Enlarge Page limit for Permanent Injunction and Enhanced Damages Reply, # 3 Proposed Order Proposed Order)(Jacobs, Michael) (Filed on 10/28/2012) Modified text on 10/29/2012 (dhmS, COURT STAFF). (Entered: 10/28/2012)

2100 - Filed & Entered: 10/28/2012
ADMINISTRATIVE MOTION for Leave to File Apples brief in Response to Samsungs Request for Additional Depositions filed by Apple Inc.. (Attachments: # 1 Exhibit Exhibit A Apples Brief in Response to Samsungs Request for Additional, # 2 Declaration Declaration of Richard S.J. Hung in Support of Apples Administrative Motion for Leave to File Apples brief in Response to Samsungs Request for Additional Depositions)(Jacobs, Michael) (Filed on 10/28/2012) Modified on 10/29/2012 (dhmS, COURT STAFF). (Entered: 10/28/2012)

2101 - Filed & Entered: 10/29/2012
RESPONSE (re 2099 MOTION for Leave to File Apples Administrative Motion for Leave to File Reply in Support of Motion to Enlarge Page Limit for Permanent Injunction and Enhanced Damages Reply ) filed bySamsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Maroulis, Victoria) (Filed on 10/29/2012) (Entered: 10/29/2012)

2102 - Filed & Entered: 10/29/2012
RESPONSE (re 2100 MOTION for Leave to File Apples Administrative Motion for Leave to File Apples brief in Response to Samsungs Request for Additional Depositions ) SAMSUNGS OPPOSITION TO APPLES ADMINISTRATIVE MOTION FOR LEAVE TO FILE APPLES BRIEF IN RESPONSE TO SAMSUNGS REQUEST FOR ADDITIONAL DEPOSITIONS filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Maroulis, Victoria) (Filed on 10/29/2012) (Entered: 10/29/2012)

2103 - Filed & Entered: 10/29/2012
RESPONSE (re 2100 MOTION for Leave to File Apples Administrative Motion for Leave to File Apples brief in Response to Samsungs Request for Additional Depositions ) Samsung's CORRECTED Opposition To Apple's Administrative Motion For Leave To File Apple's Brief in Response To Samsung's Request For Additional Depositions filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Maroulis, Victoria) (Filed on 10/29/2012) (Entered: 10/29/2012)

2104 - Filed & Entered: 10/29/2012
ORDER by Judge Lucy H. Koh denying 2092 Motion for Leave to File Excess Pages; denying 2099 Motion for Leave to File (lhklc2, COURT STAFF) (Filed on 10/29/2012) (Entered: 10/29/2012)

2105 - Filed & Entered: 10/29/2012
ORDER GRANTING MOTION TO COMPEL by Judge Paul S. Grewal granting 2082 Motion to Compel; granting 2100 Motion for Leave to File (psglc2, COURT STAFF) (Filed on 10/29/2012) (Entered: 10/29/2012)

2106 - Filed & Entered: 10/30/2012, Terminated: 11/01/2012
MOTION to clarify order compelling expert depositions re [2105] Order on Motion to Compel, Order on Motion for Leave to File filed by Apple Inc.. Responses due by 11/13/2012. Replies due by 11/20/2012. (Attachments: # (1) Proposed Order [Proposed] Order Granting Apple's Motion to Clarify Order Compelling Expert Depositions)(Jacobs, Michael) (Filed on 10/30/2012)

2107 - Filed & Entered: 10/30/2012
STIPULATION WITH PROPOSED ORDER re [2106] MOTION to clarify order compelling expert depositions re [2105] Order on Motion to Compel, Order on Motion for Leave to File Regarding Schedule For Briefing filed by Apple Inc.. (Jacobs, Michael) (Filed on 10/30/2012)

2108 - Filed & Entered: 10/30/2012
MOTION to Compel Apple to Disclose the Circumstances and Timing of Its Discovery of Juror Information, filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. Motion Hearing set for 12/6/2012 01:30 PM in Courtroom 4, 5th Floor, San Jose before Hon. Lucy H. Koh. Responses due by 11/13/2012. Replies due by 11/20/2012. (Attachments: # (1) Declaration Maroulis Decl in support of Samsung's Motion to Compel, # (2) Exhibit Ex A to Maroulis Decl in support of Samsung's Motion to Compel, # (3) Exhibit Ex B to Maroulis Decl in support of Samsung's Motion to Compel)(Maroulis, Victoria) (Filed on 10/30/2012) Modified text on 10/31/2012 (dhmS, COURT STAFF).

2109 - Filed & Entered: 10/30/2012 Terminated: 11/01/2012
STIPULATION WITH PROPOSED ORDER re [2108] MOTION to Compel Apple to Disclose the Circumstances and Timing of Its Discovery of Juror Information re Briefing Schedule filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Declaration Maroulis Decl in support of Stipulation re Schedule for Briefing Samsung's Motion to Compel, # (2) Exhibit A to Maroulis Declaration in support of Stipulation re Schedule for Briefing Samsung's Motion to Compel)(Maroulis, Victoria) (Filed on 10/30/2012)

2110 - Filed & Entered: 10/30/2012
Proposed Order re [2108] MOTION to Compel Apple to Disclose the Circumstances and Timing of Its Discovery of Juror Information by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Maroulis, Victoria) (Filed on 10/30/2012)

2111 - Filed & Entered: 10/30/2012
NOTICE of Appearance by Scott Liscom Watson (Watson, Scott) (Filed on 10/30/2012)

2112 - Filed & Entered: 10/31/2012
OPPOSITION to ( [2106] MOTION to clarify order compelling expert depositions re [2105] Order ) filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Maroulis, Victoria) (Filed on 10/31/2012) Modified text on 11/1/2012 (dhmS, COURT STAFF).

2113 - Filed & Entered: 10/31/2012
Corrected Administrative Motion to File Under Seal re Samsung's Oppositions to Apple's Motion for Judgment as a Matter of Law, New Trial, and Amended Judgment, and Motion for Permanent Injunction and Damages Enhancement, filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Declaration of Prashanth Chennakesavan)(Maroulis, Victoria) (Filed on 10/31/2012) Modified text on 11/1/2012 (dhmS, COURT STAFF).

2114 - Filed & Entered: 10/31/2012 Terminated: 10/31/2012
MOTION for leave to appear in Pro Hac Vice FOR CAREY R RAMOS ( Filing fee $ 305, receipt number 0971-7240557.) filed by Samsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Declaration, # (2) Exhibit A)(Ramos, Carey) (Filed on 10/31/2012)

2115 - Filed & Entered: 10/31/2012
ORDER by Judge Lucy H. Koh granting [2114] Motion for Pro Hac Vice (lhklc2, COURT STAFF) (Filed on 10/31/2012)

2116 - Filed & Entered: 11/01/2012
ORDER RE APPLE'S MOTION TO CLARIFY by Judge Paul S. Grewal entered [2106] Motion Clarification of Order (psglc2, COURT STAFF) (Filed on 11/1/2012)

2117 - Filed & Entered: 11/01/2012
Administrative Motion to File Under Seal RENEWED MOTION BY NONPARTY MOTOROLA MOBILITY LLC TO SEAL PORTIONS OF EXHIBIT 23 filed by Motorola Mobility LLC. (Attachments: # (1) Declaration of Jennifer Golinveaux, # (2) Proposed Order, # (3) Certificate/Proof of Service)(Golinveaux, Jennifer) (Filed on 11/1/2012)

Because the court has revoked the preliminary injunction against Samsung's Galaxy Tab 10.1, Samsung has asked the appeals court to cancel the appeal about that issue as being moot, and they have done so:

10/02/2012 - 36 - Letter from Appellants Samsung Electronics America, Inc., Samsung Electronics Co., Ltd. and Samsung Telecommunications America, LLC Re: District Court Ruling Following Limited Remand. Service: 10/02/2012 by email. [27924]

10/03/2012 - 37 - MOTION of Appellants Samsung Electronics America, Inc., Samsung Electronics Co., Ltd. and Samsung Telecommunications America, LLC to terminate appeal through voluntary dismissal with prejudice.. [Consent: unopposed]. Service: 10/03/2012 by email. [28182]

10/15/2012 - 38 - ORDER granting motion to voluntarily dismiss its appeal [37] filed by Appellants Samsung Electronics America, Inc., Samsung Electronics Co., Ltd. and Samsung Telecommunications America, LLC. Each side shall bear its own costs. ISSUED AS A MANDATE: October 15, 2012. Service: 10/15/2012 by clerk. [29758]

The same filing as #38 appears in the District Court docket as #2077:
10/18/2012 - 2077 - ORDER of USCA as to 1138 Notice of Appeal to the Federal Circuit, filed by Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC, Samsung Electronics America, Inc., Federal Circuit #2012-1506: Samsung Electronics Co., Ltd. et al move without opposition to voluntarily dismiss its appeal with prejudice. Upon consideration thereof, It is Ordered that the motion is GRANTED. Each Side Shall bear its Own Costs. (dhmS, COURT STAFF) (Filed on 10/18/2012) (Entered: 10/22/2012)
Just explaining in case you come across something and wonder what the dropped appeal is about. You'll notice, if you take the time to read all the Orders that the judge isn't granting each and every Apple request or denying Samsung's outright, but there does still seem to be some issues of evenness. Take a look, for example, at Samsung's description [PDF] of the issue of how many pages each side was to get to argue whether or not Apple could get an injunction against Samsung's products. Apple had asked for 10 more pages, but it already had more than Samsung to begin with. That request for even more -- submitted after Samsung had already filed its alloted pages -- was denied [PDF].

Apple is asking that 26 Samsung products be blocked from sale in the US. Yes. 26, speaking of IP maximalism. It seems to have taken the magistrate judge's breath away, and so he is allowing a little more leeway for Samsung to respond, and he granted [PDF] Samsung's request, over Apple's opposition, to depose some of Apple's declarants, like Phil Schiller. He also granted Apple's request to depose four of Samsung's experts. Judge Lucy Koh, the presiding judge, has also granted [PDF] Samsung's request, over Apple's opposition, to use discovery from the other Apple v. Samsung litigation she is also overseeing, Case No. 12-CV-00630. Samsung had said [PDF] that Apple introduced not only new material but conflicting declarations, such as Schiller saying one thing at trial and another now in his declaration:

Similarly, Mr. Schiller now offers opinions that are new or in conflict with his testimony at trial. Compare Dkt. 1985, ¶¶ 4, 6-7, 14, 15 (opining on Galaxy line of smartphones, competition with iPhone, and confusion) with R.T. 656:21-657:3; 657:13-659:1; 694:25-696:5; and 696:14-699:19 (conflicting trial testimony on same topics).
So that's where they are currently, each side fighting over every inch of beach. We see two very sophisticated law firms who know how to fight, how to *really* fight, in a court of law when there is plenty of money available to try everything they know how to do and clients willing to fight to their last breath. Neither side will give up a single grain of sand without a full battle. Some of it will seem petty to you, but the truth is, every detail can matter, depending on how things play out, and you never know for sure exactly what the judge will do, so you must fight over details too, if you are determined to prevail. The judge even makes a little remark in one order about Apple filing such and so and Samsung "not to be left out" doing the same in return. She sees what I see, which is that this is an unusual battle. If you hire a lawyer for some rinky dink problem, don't expect anything at all like this, because you won't get it, unless you are a one percenter and can afford it. Steve Jobs promised that he was willing to spend Apple's last dime to pay for thermonuclear war, and Apple is following through.

I hate to watch it, and the paralegal side loves watching it at the same time, in that I've never seen anything quite like this, and it's professionally fascinating. But I wish Apple would see reason, and pull back on the extremism. I've always liked Apple, and I can't admire this, and it makes me sad to know that Apple's brand is being ruined. The US got drunk on the idea of IP maximalism, thinking it would solve some economic problems. They think that, though, because Hollywood told them so, and how does the world view Hollywood's IP legal work? If you want people to buy what you are selling, they have to like you enough to want to buy from you. And now it's Apple imitating Hollywood's extremism. Does it make you want to reward the company with your hard-earned money? Are their products as "cool" in your eyes, now that you are watching its legal behavior toward Samsung, a partner of Apple's? 26 devices Apple wants to block. 26. I mean. It's trying to put Samsung out of business in the US. For what? Rounded corners on a tablet? Are they listening to the wrong lawyers?

Here's Samsung's motion to compel, as text, and notice that it asks that Apple be ordered to provide the information "under penalty of perjury". I'm not used to lawyers asking for that regarding other lawyers. They are all officers of the court, and truth is assumed under normal circumstances. While you and I must offer written evidenciary materials, like affidavits, under penalty of perjury, lawyers usually just "affirm". Samsung, I gather, assumes nothing any more about Apple, and they wouldn't ask for this unless they had a plan in the event that truthful information is ordered but is not forthcoming:

Samsung's Motion as Text:

**********************

SAMSUNG’S NOTICE OF MOTION AND
MOTION TO COMPEL APPLE TO
DISCLOSE THE CIRCUMSTANCES AND
TIMING OF ITS DISCOVERY OF JUROR
INFORMATION

NOTICE OF MOTION

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

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 compelling Apple Inc. (“Apple”) to provide a full and complete disclosure, under penalty of perjury, of when and how Apple first learned that the jury foreman, Velvin Hogan, had been a party to lawsuits involving Seagate that he failed to disclose to the Court in response to the Court’s direct questioning at voir dire and of the nature and timing of these lawsuits. This information is relevant to Apple’s argument, made in Apple’s opposition to Samsung’s Motion for New Trial, that Samsung waived its challenges based on Mr. Hogan’s misrepresentations because Samsung purportedly “could have” and “should have” discovered them earlier.

This motion is based on this notice of motion and supporting memorandum, and such other written or oral argument as may be presented at or before the time this motion is taken under submission by the Court.

RELIEF REQUESTED

Samsung seeks an Order compelling Apple to provide a full and complete disclosure, under penalty of perjury, attesting to the circumstances and timing of its discovery of factual information relating to Mr. Hogan, including specifically when and how Apple first learned that Mr. Hogan had been a party to lawsuits involving Seagate and of the nature and timing of these lawsuits.

1

DATED: October 30, 2012

QUINN EMANUEL URQUHART & SULLIVAN, LLP

By /s/ Susan R. Estrich
Charles K. Verhoeven
Kevin P.B. Johnson
Victoria F. Maroulis
Michael T. Zeller
Attorneys for SAMSUNG ELECTRONICS CO.,
LTD., SAMSUNG ELECTRONICS AMERICA,
INC. and SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC

2

Preliminary Statement

As Samsung showed in its post-trial motion for new trial, jury foreman Velvin Hogan failed to disclose truthfully during voir dire that he had sued and been sued by his former employer, Seagate, despite the Court’s express question asking him whether he had ever been a party to any litigation. Dkt. 1990-3 at 2. After Samsung filed that motion, Apple demanded that Samsung disclose “how and when it learned of the facts underlying its allegations that the judicial process was tainted” in order to assess “whether Samsung has preserved” its arguments. Dkt. 2022-1, Ex. A. Samsung did so, providing Apple with sworn declarations that establish that only after the verdict issued did Samsung and its counsel “learn of the facts” showing that Mr. Hogan had made misrepresentations about his litigation history during voir dire. Dkt. 2022.

Unable to contradict those facts, Apple has conceded that Samsung did not have actual knowledge of Mr. Hogan’s misrepresentations during voir dire until after the verdict and thus is foreclosed from arguing that Samsung waived its juror conduct argument for not having raised it sooner on that basis. Apple nonetheless argues in its opposition to Samsung’s new trial motion that Samsung waived its juror conduct argument anyway because it “could have” and “should have” discovered Mr. Hogan’s undisclosed Seagate litigation sooner. Dkt. 2050 at 1-2 (emphasis added). Specifically, Apple suggests that Samsung should have obtained a copy of Mr. Hogan’s 1993 bankruptcy file during voir dire, and that had it done so, it might have discovered the Seagate litigation that Mr. Hogan failed truthfully to disclose. Id.

Samsung will respond in due course in its reply to this remarkable and untenable suggestion that it should have extra-judicially investigated a sitting juror’s bankruptcy despite its lack of relevance to any question asked on voir dire. But in order to have a full and fair opportunity to reply to Apple’s “waiver” argument, Samsung is entitled to know when Apple first learned of Mr. Hogan’s undisclosed Seagate litigation, including whether it knew of Mr. Hogan’s misstatements to the Court prior to Samsung’s post-trial motion and nonetheless concealed that knowledge from the Court. Apple’s answer to that question is relevant both to whether Apple complied with its obligation to disclose known misrepresentations to the Court and whether a reasonable litigant in this case should have discovered Mr. Hogan’s untruthfulness sooner than

1

Samsung did. Apple has refused to disclose this information despite Samsung’s request. Samsung therefore respectfully requests that the Court compel Apple to disclose when it first learned of Mr. Hogan’s undisclosed Seagate litigation.

Factual Background

As Samsung showed in its new trial motion, the Court asked Mr. Hogan whether “you or a family member or someone very close to you [has] ever been involved in a lawsuit, either as a plaintiff, a defendant, or as a witness,” but Mr. Hogan failed to disclose that Seagate had sued him or that, as he later revealed in a media interview, that he had sued Seagate. Dkt. 1990-3 at 2. It is public knowledge that Samsung is Seagate’s largest direct shareholder and has a substantial relationship with Seagate. Id. Moreover, the attorney who represented Seagate in the litigation against Mr. Hogan is married to a Quinn Emanuel partner. Id.

After Samsung filed its motion making these points, Apple questioned whether “Samsung has preserved arguments concerning juror misconduct.” Dkt. 2022, Ex. A. Specifically, on September 24, 2012, Apple demanded that Samsung provide “a sworn declaration” to disclose “how and when it learned of the facts underlying its allegations that the judicial process was tainted.” Id. Samsung agreed to do so, and on October 1, 2012, served a declaration of counsel affirming that Samsung “had no knowledge of Velvin Hogan’s litigation against Seagate until after the jury verdict was rendered in this case.” Dkt. 2022, Ex. B at 1. Samsung explained that, “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 22 (Bankr. N.D. Cal. Dec. 27, 1993),” which “file included papers showing that Seagate Technology, Inc. had filed litigation against Mr. Hogan.” Id.

This did not satisfy Apple. Instead, in follow-up communications, Apple requested that Samsung disclose additional information, including “[w]hen and how Samsung obtained any and all information about Mr. Hogan’s bankruptcy, including the date and results of any database searches for information about Mr. Hogan conducted by Samsung, Quinn, or anyone else working for Samsung or Quinn.” Dkt. 2022, Ex. C. Again, Apple claimed that “information regarding

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when and how Samsung learned of the facts underlying its claims of alleged juror misconduct is relevant to whether Samsung has preserved those arguments.” Id. Samsung agreed to comply with Apple’s request again, and on October 4, 2012, filed with the Court a supplemental declaration of counsel setting forth the sequence of events in precise detail. See Dkt. 2022.

As Samsung’s supplemental declaration shows, Samsung and its counsel did not learn of any facts showing that Mr. Hogan made misrepresentations in voir dire in his answers about lawsuits he was a party to until after the verdict in this case was rendered. After the verdict, Mr. Hogan made public statements which led the media to question his impartiality, including through suggestions that Mr. Hogan had financial ties to Apple by virtue of his patents. Id. at ¶ 4 and Ex. E. Because bankruptcy filings may contain financial information about a debtor, Samsung ordered a copy of Mr. Hogan’s bankruptcy file after these media reports were published and thereby discovered, for the first time, that Mr. Hogan had been sued by Seagate. Id. at ¶ 4. Samsung knew pre-verdict “that Mr. Hogan had declared bankruptcy in 1993 through a search performed on the LexisNexis database,” but that “LexisNexis report does not mention Mr. Hogan’s litigation with Seagate.” Id. at ¶ 9. And “[b]ecause Mr. Hogan’s 1993 bankruptcy did not involve litigation and was not responsive to any voir dire questioning, Samsung and its counsel did not investigate Mr. Hogan’s 1993 bankruptcy any further until after the verdict.” Id.1

The factual information Samsung has provided establishes that Samsung lacked knowledge until after the verdict had issued of Mr. Hogan’s misrepresentations during voir dire. Apple has not challenged the veracity or completeness of this information. Nor could it credibly do so. Apple now argues instead, for the first time, that Samsung should have discovered Mr. Hogan’s untruthfulness earlier because it had a duty to investigate Mr. Hogan during voir dire, including by “order[ing] the bankruptcy file.” Dkt. 2050 at 2. For its part, however, Apple has refused to

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disclose any information about its own knowledge of or investigation into Mr. Hogan, including whether Apple knew prior to the verdict of Mr. Hogan’s untruthfulness regarding the undisclosed Seagate litigation. See Declaration of Victoria Maroulis ¶ 3, Ex. B. 4

Argument

here is no doubt that Mr. Hogan was untruthful in voir dire by withholding the Seagate litigation in response to the Court’ direct questioning. Not only is this evident from the face of the Court's question, but also is abundantly confirmed by Mr. Hogan’s shifting excuses to the press for his misrepresentations.2

What Apple knew about Mr. Hogan’s undisclosed Seagate litigation, and when it first knew it, is relevant to the juror conduct issue before the Court for two independent reasons. If Apple knew that Mr. Hogan’s statements were untruthful all along and stood silent in order to gain a tactical advantage from the seating of a biased juror, Apple’s misconduct would itself warrant sanction and relief and certainly must be disclosed. If, on the other hand, Apple, like Samsung, did not know that Mr. Hogan had been untruthful until after the verdict, that is relevant evidence that Samsung’s reliance on the presumptive veracity of Mr. Hogan’s voir dire responses during trial was reasonable. Apple cannot fault Samsung for not discovering juror untruthfulness while refusing to disclose whether and when Apple itself discovered this untruthfulness.

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First, if Apple somehow discovered Mr. Hogan’s misrepresentations during trial and failed to disclose this to the Court, it must disclose as much now. The trial was tainted by the presence of a juror who was not truthful on an issue that goes directly to bias. If Apple, unlike Samsung, did know the truth all along, Apple should not be permitted to benefit from its concealment. To the contrary, Apple’s misconduct in concealing a juror’s known untruthfulness from the Court would warrant sanction and relief. A party that learns of juror untruthfulness has a duty to bring it to the Court’s attention at once. See Cal. Rule Prof. Conduct 5-200 (requiring duty of candor to Court); see also Dyer v. Calderon, 151 F.3d 970, 976 n.7 (9th Cir. 1998) (en banc) (“prosecutor had an ethical obligation to bring to the judge’s attention evidence” showing lies during voir dire); People v. Khounani, 2005 WL 488613, at *4 (Cal. App. March 03, 2005) (“Immediately upon learning of any juror misconduct, counsel should bring the violation to the court’s attention”). And Apple should not be heard to argue that Samsung somehow waived claims of taint that Apple itself discovered and concealed for tactical gain, for in that event, Apple’s unclean hands would prevent any such waiver claim. See, e.g., Seller Agency Council, Inc. v. Kennedy Center for Real Estate Educ., Inc., 621 F.3d 981, 986 (9th Cir. 2010) (“The doctrine of unclean hands . . . can bar a defendant from asserting an equitable defense”).

Second, in the more likely case that Apple, like Samsung, did not know that Mr. Hogan was untruthful, that too is highly material for it shows that Samsung reasonably did not discover the untruthfulness until the trial was over. See, e.g., Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011) (to assess due diligence in context of equitable tolling, “we determine if (and when) a reasonable person in petitioner’s position would suspect the specific fraud or error”). Apple is wrong that litigants cannot rely on the veracity of juror statements and instead have a duty to extra-judicially investigate sitting jurors to test their voir dire responses. But if Apple is right that the relevant question is whether Samsung “should have” discovered Mr. Hogan’s untruthfulness by investigating him mid-trial, then Apple’s own failure to make such a discovery by conducting such an investigation would show that Samsung cannot be charged with failing to discover facts that neither party knew. Each side in this case is resourceful and sophisticated; if neither discovered Mr. Hogan’s untruthfulness, no reasonable party would have.

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By challenging the reasonableness of Samsung’s investigation, Apple has put the extent of its own knowledge and investigation at issue. Accordingly, Apple should be compelled to disclose the circumstances and timing of its discovery of Mr. Hogan’s lawsuit(s) with Seagate.

CONCLUSION

For the foregoing reasons, Samsung respectfully requests that its motion be granted.

DATED: October 30, 2012

Respectfully submitted,

QUINN EMANUEL URQUHART &
SULLIVAN, LLP

By /s/ Susan R. Estrich

Charles K. Verhoeven
Kevin P.B. Johnson
Victoria F. Maroulis
Michael T. Zeller
Attorneys for SAMSUNG ELECTRONICS CO.,
LTD., SAMSUNG ELECTRONICS AMERICA,
INC. and SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC

_______________
1 Mr. Hogan continued to speak with the press after Samsung filed its new trial motion. In one interview, Mr. Hogan explained that in fact “he sued Seagate for fraud, Seagate countersued.” Id. at ¶ 7 and Ex. F. This fraud claim is not mentioned in the bankruptcy file that Samsung obtained post-verdict, and the court’s records of Mr. Hogan’s lawsuit(s) with Seagate no longer exist. Id. To this day, this statement by Mr. Hogan to the press is the only information Samsung has been able to obtain about Mr. Hogan’s fraud claims against Seagate.

2 The Court’s voir dire questioning expressly required Mr. Hogan to disclose all of his prior lawsuits, without any time limitation. RT 148:18-21 (“Have you . . . ever been involved in a lawsuit, either as a plaintiff, a defendant, or as a witness.”) (emphasis added). Mr. Hogan nonetheless told the media, in one account, that he did not disclose the 1993 Seagate lawsuit because “the court instructions for potential jurors required disclosure of any litigation they were involved in within the last 10 years” and that “[h]ad I been asked an open-ended question with no time constraint, of course I would’ve disclosed that” (id. at 3 and Ex. G). In another interview, Mr. Hogan gave a different, conflicting excuse and claimed “that he didn’t mention the 1993 Seagate case” because “he wasn’t asked specifically to disclose every case he’d ever been involved in”. (Dkt. 2022 at 2-3 and Ex. F). Neither of Mr. Hogan's inconsistent explanations is correct. The Court’s question did ask him to disclose every case he had ever been involved in, with no 10-year limitation on this question anywhere in the record. Indeed, confirming the clarity of the Court's questioning, other prospective jurors disclosed lawsuits as far back as 1986, RT 155:22-23, and Mr. Hogan discussed his own prior jury service going as far back as 1973. RT 195:14-23 (“one was in ’73; one was in the mid ‘80s, ’87, I think it was; and the other one that was more recent was 1990”).

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