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Apple Refuses to Answer Samsung's Q Re When It Learned About the Foreman's Seagate Litigation ~pj Updated
Tuesday, November 06 2012 @ 10:54 AM EST

Apple very much does not want to have to answer Samsung's question in its motion to compel about when Apple learned about the jury foreman's earlier litigation with Seagate. Here's a bit from its response [PDF]:
Samsung’s motion to compel Apple to disclose what it knew about juror Velvin Hogan fails because only Samsung—not Apple—accuses Mr. Hogan of misconduct. What Samsung knew about Mr. Hogan bears directly on whether Samsung waived any objection to Mr. Hogan because it knew or could have discovered the basis for its objection before the verdict. Apple does not accuse Mr. Hogan of misconduct so what Apple knew is irrelevant. Not surprisingly, Samsung is unable to cite a single case that holds that the opposing party’s knowledge is relevant to whether the objecting party waived jury misconduct objections. Nor has Samsung made the showing needed to obtain Apple’s attorney work product.
Maybe that lack of earlier cases on point is because no party has ever made Apple's bone-headed move to make the timing central to a case. Now that Apple did that, of course Samsung wants an answer. But it's up to the judge, who will decide based on the law but also based on how seriously she takes the accusation of jury misconduct. Jury misconduct is hard to make stick, so the odds favor Apple.

Samsung takes it seriously, however, and so if she won't compel Apple to answer, the appeals court can. This could go on for some time. It does look a little odd that Apple doesn't just say, "We learned about it after the verdict too." It looks especially odd, because if they learned of it earlier, and didn't tell the court, it could be serious for Apple and for the law firm, Samsung has claimed, which could explain the mocking tone Apple adopts, as if it's quite a stretch to call what the foreman did misconduct.

Odder still is the fact that Apple again says that Samsung could have learned about the Seagate litigation itself prior to the verdict. How do they know? Did Apple know? Refusing to answer such a simple question makes clear, to me anyway, that each side believes the other side has not fully told all it knew or knows yet.

The filings, so you can follow along:

2118 - Filed & Entered: 11/02/2012
OPPOSITION to ( [2108] MOTION to Compel Apple to Disclose the Circumstances and Timing of Its Discovery of Juror Information ) filed by Apple Inc.. (Jacobs, Michael) (Filed on 11/2/2012) Modified text on 11/5/2012 (dhmS, COURT STAFF).

2119 - Filed & Entered: 11/02/2012
STIPULATION WITH PROPOSED ORDER re [2105] Order on Motion to Compel, Order on Motion for Leave to File Stipulation Regarding Schedule for Post-Trial Depositions filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Maroulis, Victoria) (Filed on 11/2/2012)

2120 - Filed & Entered: 11/02/2012
NOTICE by Apple Inc. re [2047] Order on Administrative Motion to File Under Seal Apple's Motion for a Permanent Injunction and for Damages Enhancements (PUBLIC REDACTED VERSION--PREVIOUSLY FILED UNDER SEAL) (Attachments: # (1) Declaration of Terry Musika (Public Redacted Version Previously Filed Under Seal), # (2) Exhibit 6 to Musika Decl., # (3) Exhibit 7 to Musika Decl., # (4) Exhibit 8 to Musika Decl., # (5) Exhibit 9 to Musika Decl., # (6) Exhibit 14 to Musika Decl., # (7) Exhibit 24 to Musika Decl., # (8) Exhibit 26 to Musika Decl., # (9) Exhibit 37 to Musika Decl., # (10) Exhibit 48 to Musika Decl., # (11) Exhibit 52 to Musika Decl., # (12) Exhibit 62 to Musika Decl., # (13) Exhibit 63 to Musika Decl., # (14) Declaration of Marylee Robinson, # (15) Exhibit 30 to Robinson Decl.)(Hung, Richard) (Filed on 11/2/2012)

2121 - Filed & Entered: 11/05/2012
EXHIBITS re [1985] Declaration in Support, Corrected Attachment 6 Cited in Paragraph 12 to Declaration of Philip W. Schiller in Support of Apple's Posttrial Motion for a Preliminary Injunction filed byApple Inc.. (Related document(s)[1985]) (Jacobs, Michael) (Filed on 11/5/2012)

Apple's argument -- one that doesn't hold water with me -- goes like this:
Samsung knew that Mr. Hogan “had worked for Seagate,” as he disclosed in voir dire. (Tr. 191:20-192:2.) This is significant because if Samsung genuinely believed (as it now alleges) that its relationship with Seagate was so important that bias against Seagate could create bias against Samsung, then Samsung should have asked Mr. Hogan about his departure from Seagate and any negative experiences with Seagate. (See Dkt. No. 2050 at 1-2.) Had Samsung asked about Seagate, it would have discovered the dispute. Samsung failed to do so and thus waived any objections.
This makes little sense to me. Thinking that he might be biased would stem from knowledge that the two *sued* each other, or particularly that Seagate sued him, not that he worked for them. You certainly can hold a grudge against someone who sued you to take your house away from you, maybe until the day you die. But just working for a company doesn't make you hate them, usually. If anything, it might make you favor them in later litigation.

And if Samsung had asked about the circumstances of his leaving, that wouldn't have revealed anything pertinent either. He would likely have just answered that he was laid off. The lawsuit happened afterward, when the foreman failed to pay back a company loan, and given the way the foreman answered questions in voir dire, he could have answered all the questions without once mentioning the litigation. It's the kind of thing you'd have to know about to bring up, and if, as Samsung alleges, he was hiding it on purpose to get a seat on the jury, he would have continued to hide it no matter what Samsung asked, unless it was directly on point, as in "Did Seagate ever sue you?" And that's not a normal question anyone would think to ask in voir dire, unless they knew the answer already.

Now, this judge and I don't always reach identical conclusions from the same facts, and it's her decision that matters, so I can't predict a thing in this case. She may be influenced by Apple's arguments. Michael Jacobs of Morrison & Foerster wrote this, and he's mighty persuasive and has an appealing personality that most people would find a plus in any dispute. You kind of *want* him to be right. Even I do, and I don't think he is here. So that is always a factor when he shows up.

All I can say is that I don't think she *should* be influenced by it. And here's why: the public is watching. Some of us, probably a lot of us, have been deeply disturbed by this juror's behavior, and we'd very much like our faith in the legal system to be strengthened by what happens next, by how the court handles this issue. That's why I do Groklaw, to explain how the legal system works, with the hope that it will encourage confidence in it, and this case is very much not helping. So we'd like Apple to answer the question and let justice take its course, whichever way it turns out the full facts indicate. How can the public ever accept this jury's verdict as being fair or even plausible unless something is done to address the jury misconduct issue? A new trial with an untainted jury would solve that problem, even if they still found for Apple.

Apple makes a valid argument about Samsung knowing about the bankruptcy earlier than it says it knew about the Seagate litigation:

Contradicting its prior accusation that Mr. Hogan “failed to answer truthfully” by not disclosing the bankruptcy (Dkt. No. 2013 at 2), Samsung now argues that Mr. Hogan’s bankruptcy “did not involve litigation and was not responsive to any voir dire questioning.” (Dkt. No. 2108 at 5.) Samsung reversed course after finally admitting that it knew of the bankruptcy on the day of voir dire, suggesting that it never believed that Mr. Hogan should have disclosed the bankruptcy in response to a question about involvement in “a lawsuit,” but nevertheless argued for a position that it did not believe in an attempt to find some way to overturn the verdict.
It's also true, as Samsung has already said, that knowing about a bankruptcy isn't the same as getting the filing and reading about the litigation in all its details. It depends on what shows up in a LexisNexis search. Perhaps neither side is telling the whole story. It would not be the first time in the history of the United States legal system lawyers have done that in court filings. It's not their job to argue for the other side, only for their client.

It's for the judge to make sure someone gets to the bottom of this, in that Apple has made it an issue. But really, the flaws in the jury's verdict are so egregious, do we really need to go around and around on who knew what when? Apple is trying to escape a new trial based on a technicality. What matters is that the foreman knew, and he stayed quiet when he should have spoken, and that's what counts.

Apple pooh poohs any such concern, writing that "Apple’s view is that the 19-year old Seagate dispute is irrelevant and would not have supported challenge for cause." Note that Apple then uses the argument that a number of anonymous commenters tried out first on Groklaw:

Mr. Hogan honestly replied to the Court’s “yes-or-no” question about whether he had “ever been involved in a lawsuit” by raising his hand, disclosing a recent technology ownership dispute, and answering follow-up questions about that case. (Tr. 148:18-150:11.) He was not asked if there were other lawsuits or a bankruptcy, so he never failed to answer a question honestly. Neither the general “duty of candor” nor the two criminal cases that Samsung cites would have required Apple to disclose immaterial information about a juror.
Only a lawyer or a partisan would think that argument is valid. He was not asked a yes or no question. He was asked if he has *ever* been involved in any litigation, not just the one he cared to mention. Ever means ever and it means all of them. If the judge moved on, he had a duty to raise his hand again and say, "I didn't finish." In truth, the judge asked more than once, stressing how important it was for the prospective jurors to tell about any such, so she could make sure they understood that prior knowledge of the law might not be current. So he had more than one opportunity to raise his hand.

Then Apple makes the surprising claim -- after threatening Samsung with a motion to compel if it didn't answer the same question it now refuses to answer itself -- that it doesn't have to answer, because it's attorney work product. Again, if it felt that was so, why did it ask Samsung for it? And once it asked Samsung for it, it's laughable to me to claim that Apple can hide behind an attorney work product defense, after it is Apple who made this the pivot on which the entire question of a new trial depends. Apple says Samsung volunteered the information, but really, it was under threat of a motion to compel. On what basis would a motion to compel be valid, if this is all attorney work product?

The rest of the filings are a schedule for the post-trial depositions, stipulated to by the parties, and some corrected or unsealed exhibits.

Update: I see some are asking about Samsung's answers to the question of when Samsung learned about the voir dire problem. Here's Samsung's motion [PDF] asking for a new trial because of jury misconduct, and here's Apple's response [PDF].

If you go to this article, and go to Update 1, you'll find the text of the Declaration [PDF] of Michael T. Zeller, with an exhibit [PDF], where he tells the court how they learned of it.

And here's the detailed bankruptcy filing [PDF], which will show you the notation about the Seagate claim, and you can find many more details about the bankruptcy here, along with media reports of what the jury foreman said about it post-verdict.

And here's the emails between the lawyers, showing how not "voluntary" Samsung's answer to Apple's aggressive questioning was. And finally, here's the section of voir dire [PDF] that has been made public.

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