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To read comments to this article, go here
Judge Koh Agrees to Hear Oral Argument Dec. 6 on Jury Misconduct and When Apple Learned of It ~pj Updated
Friday, November 09 2012 @ 05:30 AM EST

The Hon. Lucy Koh has ruled [PDF], sort of, on Samsung's motion to compel Apple to reveal when it learned about the jury foreman not answering fully in voir dire. By sort of, I mean she says she will hear oral argument about it on December 6th, along with everything else, and then if she grants Samsung's motion to compel, she'll likely order fuller briefing before ruling on Samsung's motion for judgment as a matter of law, another motion already before her that will be argued on December 6th also.

I know. It seems like a kick the can down the road order. True, she's really busy, and she doesn't want to make a mistake. A lot is riding on this. She also probably doesn't want to read any more briefs than she really needs to, but normally Samsung would get to respond to Apple's opposition, so it's a little strange. California needs to fund its courts and create an atmosphere where judges can work without being overburdened. But the upside for Samsung is that she's apparently taking their motion seriously, despite Apple's opposition, and she did not deny it out of hand. But she could have granted the motion without oral argument as well. Considering how hard it is to establish jury misconduct, though, I'd call this a win for Samsung, or more accurately that Samsung has made it over the first hurdle, with more to come on the 6th. If any of you can make it for the hearing, that'd be important, I think. That's in San Jose, California, Dec. 6 at 1:30 PM. If you can go, email me please, and we'll talk.

The order reads like this:

On October 30, 2012, Samsung filed a motion to compel Apple to disclose the circumstances and timing of Apple’s discovery of certain information regarding the jury foreperson. ECF No. 2108. On November 2, 2012, Apple filed an opposition. ECF No. 2118. At the December 6, 2012 hearing, the Court will consider the questions of whether the jury foreperson concealed information during voir dire, whether any concealed information was material, and whether any concealment constituted misconduct. An assessment of such issues is intertwined with the question of whether and when Apple had a duty to disclose the circumstances and timing of its discovery of information about the foreperson. Accordingly, the Court will address Samsung’s motion to compel at the December 6, 2012 hearing. If the Court grants Samsung’s motion to compel, the Court will likely order supplemental briefing before ruling on Samsung’s motion for judgment as a matter of law.

IT IS SO ORDERED.

The part that doesn't strike me as being so favorable to Samsung is the part about whether or not what happened really matters. If she can't tell from the briefs already before her that "the jury foreperson concealed information during voir dire, whether any concealed information was material, and whether any concealment constituted misconduct", I wonder what it would take to convince her. But if she wanted to be convinced, why block Samsung's reply brief? Is she so busy she forgot about where we are in the process? Normally, motions go like this: 1) Party A files a motion, 2) Party B opposes, and then 3) Party A gets to reply to the opposition. Then there is oral argument if needed, and then the judge rules. Here, we've taken steps 1 and 2, and there's a judge ruling there will be oral argument, but there's no step 3. That's been skipped over. And while Samsung will have an opportunity to answer any questions the judge may have that made her decide on hearing oral argument, so will Apple. But if I were Apple, I'd be a bit worried about this ruling, and I'd take it that she does want to know why Apple won't answer a simple question like when it learned about the problem in voir dire. It struck me as suspicious, so maybe it did her as well. I recall during the trial, she told the lawyers for both sides, outside of the jury's hearing, that she didn't trust what any of them told her. So maybe she is thinking about Samsung's charge that perhaps Apple knew before the verdict and said nothing to the judge. If that's what this is about, Apple needs to have a mighty strong answer ready, I'd say.

There is also an elaborate order [PDF] from the magistrate judge, Paul Grewal, on sanctions the parties both have to pay for discovery issues. Both sides got sanctioned, both were ordered to pay, and both complained about the amount. They were supposed to provide more detailed invoices, but neither side did, so the judge tried to figure it out himself from what he had, and he reduces the sanction on each, with the net result that Samsung comes out ahead:

IT IS HEREBY ORDERED that within seven days of this order Apple shall pay to Samsung $160,069.41 as the sanction award from the court’s July 11 order.

IT IS FURTHER ORDERED that within seven days of this order Samsung shall pay to Apple $21,554.14 as the sanction award from the court’s April 23 order.

I would guess that both of these judges will be very glad to see Apple v. Samsung come to a close. It's such a hard-fought battle, it makes a lot of work for the judges.

Update: I see the media making a few mistakes, so rather than correct anyone in particular, I thought it would be kinder to just set out the facts correctly. The issue isn't just what was said in voir dire. Samsung's motion for judgment as a matter of law raised another issue, one that I think is more serious and more likely to matter to the judge than when Apple knew about the voir dire matter. Samsung's motion was originally filed with the section on jury misconduct sealed, but here is that section unredacted after the judge ordered it to be so. You can read the entire section on that page as text, but I'd like to highlight here the other issue in addition to not mentioning the Seagate litigation during voir dire:

Finally, Mr. Hogan’s self-reported conduct during the jury deliberations presents the “reasonable possibility” that extraneous material “could have affected the verdict.” Sea Hawk Seafoods, Inc. v. Alyeska Pipeline Serv. Co., 206 F.3d 900, 906 (9th Cir. 2000). In post-verdict interviews with the media, Mr. Hogan said that he told his fellow jurors an accused device infringes a design patent based on “look and feel” (Estrich Decl. Ex. N), that an accused device infringes a utility patent unless it is “entirely different” (id. Ex. M), that a prior art reference could not be invalidating unless that reference was “interchangeable” (id. Exs. L, N), and that invalidating prior art must be currently in use (id. Ex. O). These incorrect and extraneous legal standards had no place in the jury room. See Hard, 812 F.2d at 485; Gibson v. Clanon, 633 F.2d 851, 853, 855 (9th Cir. 1981); United States v. Perkins, 748 F.2d 1519, 1530-33 (11th Cir. 1984); Casanas v. Yates, 2010 WL 3987333, at *6 (N.D. Cal. Oct. 12, 2010) (approving for cause dismissal where juror “was applying his experience to question the law, not using his experience to determine the facts”).

For all these reasons, Mr. Hogan’s conduct during voir dire and jury deliberations must be fully examined in a hearing with all jurors and can be cured only by a grant of new trial.

This is precisely why the judge asks prospective jurors if they were ever involved in any prior litigation, even as a witness. As the judge told them, she wanted to be sure they did not do what Hogan in his own accounts says he did do.

As you can imagine, this is a much more serious claim, and it will come up on December 6th at the hearing.

When Apple knew about the failure to mention the Seagate litigation will be discussed, but first both issues, especially this issue of introducing extraneous materials, will be argued, so that the judge can decide if it matters to the outcome and whether it reaches the bar of misconduct. The extraneous issues introduction is the one that I think is going to ultimately be the one that makes or breaks Samsung's JMOL motion. I'm sure you can understand why it's so important that a juror not transform into an "expert" in the jury deliberations -- the other side doesn't get to refute his "testimony". So that's the unfairness of it. And if, as in this case, the other jurors tell the world that this extraneous material was what convinced them and thus they followed wrong "expert testimony", Samsung is prejudiced, to put it mildly.

Yes, it's a high bar, but it's not impossibly high. It will be up to the judge, and then almost certainly the appeals court to decide how high this particular fact pattern reaches.

Here's the transcript of the voir dire that has been released to the public:

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, the judge asked if any prospective juror had *ever* been involved in litigation. Ever means ever. If you asked me if I had ever written any articles for Groklaw, I wouldn't say, "Yes, I wrote one today about Apple v. Samsung," and then stop. I'd say, "Yes, I've written about 5,000 articles." Why? Because ever doesn't mean I get to pick one and pretend that is all there is.

And here is a list of articles about the jury foreman's various media events and interviews, so you can verify for yourself if the media coverage matches the facts precisely:

1. Jury in Apple v. Samsung Goofed, Damages Reduced -- Uh Oh. What's Wrong With this Picture?

2. The Foreman's Aha Moment Was Based on Misunderstanding Prior Art

3. Apple v Samsung Foreman Gets More Things Wrong

4. Judge in Oracle v. Google Explains What Jurors Must Not Do -- And It's What the Jury in Apple v. Samsung Seem to Have Done

5. Voir Dire Reveals Broken Promises

6. More Unredacted Documents Surface Re Foreman

7. How Both Sides View Foreman's Voir Dire


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