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The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

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Newspicks Thread Here... | 283 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
As Mom used to say...
Authored by: Anonymous on Tuesday, November 06 2012 @ 11:14 AM EST

Something is rotten In the state of Denmark.

FYI - for those who don't recognize the quote, it is from Hamlet. Mom had a
Canadian classical education.

Wayne
http://madhatter.ca

[ Reply to This | # ]

Apple Refuses to Answer Samsung's Q Re When It Learned About the Foreman's Seagate Litigation ~pj
Authored by: Anonymous on Tuesday, November 06 2012 @ 11:26 AM EST
Lets assume Apple could truthfully say "We learned about Hogan's issues
from/after Samsung".

Are there any reasons for not doing so other than to get all the lawyers more
billable hours?

[ Reply to This | # ]

Corrections Thread Here...
Authored by: lnuss on Tuesday, November 06 2012 @ 11:27 AM EST
...

---
Larry N.

[ Reply to This | # ]

Off Topic Thread Here...
Authored by: lnuss on Tuesday, November 06 2012 @ 11:28 AM EST
...

---
Larry N.

[ Reply to This | # ]

Newspicks Thread Here...
Authored by: lnuss on Tuesday, November 06 2012 @ 11:29 AM EST
...

---
Larry N.

[ Reply to This | # ]

COMES Thread Here...
Authored by: lnuss on Tuesday, November 06 2012 @ 11:30 AM EST
...

---
Larry N.

[ Reply to This | # ]

Case law
Authored by: Anonymous on Tuesday, November 06 2012 @ 11:31 AM EST
Does it really matter that Samsung didn't cite case law? With
something that seems to be this serious, why should they need
to point to a previous case to say, Apple's lawyers may have
known, and we'd like to know why they didn't speak up about
it.

Further down the rabbit hole we go.

[ Reply to This | # ]

  • Case law - Authored by: Anonymous on Tuesday, November 06 2012 @ 01:19 PM EST
    • Case law - Authored by: rcsteiner on Tuesday, November 06 2012 @ 01:35 PM EST
      • Case law - Authored by: Anonymous on Tuesday, November 06 2012 @ 04:21 PM EST
  • Case law - Authored by: Anonymous on Tuesday, November 06 2012 @ 01:36 PM EST
  • Case law - Authored by: Doghouse on Tuesday, November 06 2012 @ 01:52 PM EST
Apple Refuses to Answer Samsung's Q Re When It Learned About the Foreman's Seagate Litigation ~pj
Authored by: Anonymous on Tuesday, November 06 2012 @ 11:43 AM EST
Apple is making a lot of mistakes lately... the case against
Samsung in the UK, the one against Motorola in Wisconsin, this
one. Their bullish aggression will be their undoing. You can't
get away with that cr... stuff for so long. Every bully meets
their match, sooner or later.

[ Reply to This | # ]

Apple Refuses to Answer Samsung's Q Re When It Learned About the Foreman's Seagate Litigation ~pj
Authored by: OpenSourceFTW on Tuesday, November 06 2012 @ 12:31 PM EST
It does look a little odd that Apple doesn't just say, "We learned about it after the verdict too."
This is exactly what I was thinking. Sounds kinda guilty.... Especially since stating that they learned about it after the verdict would seem to fit better with how they have been behaving lately. Just like Hogan, if they had just kept quiet (i.e. not ask Samsung when they learned about Hogan), nobody would know. However, they now seem to share Hogan's penchant for having an uncontrollable mouth.

[ Reply to This | # ]

Apple Refuses to Answer Samsung's Q Re When It Learned About the Foreman's Seagate Litigation ~pj
Authored by: Anonymous on Tuesday, November 06 2012 @ 12:56 PM EST
<blockquote>
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
</blockquote>
We've seen this behavior in Apple before. They think they are not responsible
for something but others are.

[ Reply to This | # ]

Todays Special: Red Herring
Authored by: SpaceLifeForm on Tuesday, November 06 2012 @ 01:16 PM EST
Apple is desparate to convince the Judge that there is nothing to worry about.

They are spinning the facts to make it appear that Samsung has no basis to complain.

Just because Samsung did learn of the bankruptcy the day of voir dire does *NOT* mean they knew of it at the time of voir dire questioning.

---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

Apple When It Learned About the Foreman's Seagate Litigation
Authored by: rsteinmetz70112 on Tuesday, November 06 2012 @ 01:18 PM EST
It seems to me that Apple's point about the bankruptcy is in fact not on point.
A bankruptcy is in itself not indicative of bias. Only the lawsuits that
precipitated the bankruptcy indicate possible bias.

Also didn't Samsung say the court records of these suits areare no longer
available? If so, how would they have been able to discover the suit without the
serendipitous marriage of one the Partners or by somehow getting access to
Seagate's records?

---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

Apple Refuses to Answer Samsung's Q Re When It Learned About the Foreman's Seagate Litigation ~pj
Authored by: Anonymous on Tuesday, November 06 2012 @ 01:24 PM EST
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.
Samsung's reasoning for compelling Apple to disclose when they knew about Hogan's lawsuits have NOTHING to do with Apple accusing Mr. Hogan of jury misconduct. It has to do with either a) Apple knew about his past and intentionally left a fireball on the jury stand, and didn't tell anyone he was an issue; or b) Apple is claiming Samsung should have known about this even thought Apple had no required duty to know.

In short, to me at least, it seems Apple's reasoning for not having to answer is non sequitur by denying the antecedant

1) If A is true, then B is true.
2) A is false.
3) Therefore, B is false.

~ukjaybrat - IANAL

[ Reply to This | # ]

Apple Refuses to Answer Samsung's Q Re When It Learned About the Foreman's Seagate Litigation ~pj
Authored by: jacks4u on Tuesday, November 06 2012 @ 01:43 PM EST
My question is this: would a reasonable and responsible lawyer disclose that a
juror was potentially biased, even though properly vetted thru voir dire? That
is, if Apple knew this, while the trial was still on-going, would they have an
obligation or responsibility to disclose?

[ Reply to This | # ]

This is dragging away from the central problem with the verdict
Authored by: Anonymous on Tuesday, November 06 2012 @ 01:57 PM EST
Whether the foreman was biased or not is fairly irrelevant to the faulty
verdict. The issue is that he acted as an expert witness, and as the judge, in
the jury room. Using his own experience and faulty understanding of patents he
persuaded the jury into a verdict not based on the merits of the evidence
presented but on his testimony that the patents should be upheld. In addition,
he interpreted the law in a manner which directly contradicted the judge's
instructions, despite swearing to weight the evidence based on the law as the
judge presented it. There is also good reason to believe that he dissuaded
other members from the jury from asking the judge for clarification on her
instructions. This behavior goes against the sworn commitments that he made
when appointed to the jury.

That he was not truthful in the other parts of his response to the judge, and
that he might have had an axe to grind with Samsung, just add fuel to the fire.
All this posturing from Apple is only to distract an overwhelmed judge who was
been known to miss things purely because of the deluge of "work
product" thrown at her.

Regards,
-Jeremy

[ Reply to This | # ]

apple dumplings in crock pot
Authored by: webster on Tuesday, November 06 2012 @ 07:42 PM EST

What a nifty title googled up in the search suggestion lines! The title should rightly be:

For a lawyer, to not disclose known juror misconduct, or the appearance of misconduct, is misconduct.

What a rare recipe we have here!

  • What happens at a hearing when the judge asks Jacobs, or some other Apple lawyer, when they learned of Velvin's fib? They can refuse to answer and accept the consequences, or answer and accept the consequences, if any. Unless they plan to try and stonewall the judge, they should pre-empt this scenario with prior disclosure, sealed or otherwise. Oh, but you can't seal steps in a recipe; it won't taste the same. Apple has clearly concluded that refusing to disclose this information, with all the attendant suspicion, attention and headlines, is better than the disclosure itself. It must be a doozy. What if they got an anonymous email, "Check out this case, Seagate v. Hogan, Velvin's your man!" If they found it with three amended googles, then they should just say so adding that Samsung fumbled it. Did they do due diligence or did they get some special inside information? The latter undermines their argument. They don't want to explain when and why they learned because then they would have to explain why they didn't disclose it to the Court or Samsung if they thought it was misconduct or important information. They could have approached the Court "ex parte" [without Samsung] and left it up to the Judge. What stress. In every trial the lawyers are on trial, too. They better have discussed this with their client. They are not going to be happy if this silence caused their snap billion-dollar verdict to slip away.
  • When Apple found out is also crucial. If it was during voir dire they are sunk. That is like Apple and Velvin misleading the judge. During trial, maybe. During deliberations, it is too late even for them. The alternate jurors are gone. Voir dire is taken very seriously and a lawyer trifles with it at his peril even though it is in great part guess work. Once during a multi-codefendant trial at a voir dire conducted in the jury room, one of the defense counsel announced to the judge that the next juror may be a neighbor or related to a neighbor who had taught his children. The juror was the daughter of that neighbor and did not know counsel. That juror sat on the jury. The judge thanked counsel. Later in the same voir dire a juror entered and answered several questions. Finally the juror indicated that she and her family were friends with one of the defense counsel and his family. The judge was very angry with counsel for not advising the court ahead of time. It appears extremely bad and suggests that counsel was trying to get a friend on the jury. So for Apple to let a former litigant against their opponent sit incognito is very close to the edge. Their fondest wish came true --he sat and produced a snap billion dollar verdict. And Velvin takes full credit with gushing public appearances. It is tainted.
  • Apple's position has to be that there was no misconduct. The lawyers have taken an advocate's perspective: Samsung missed, too bad for them. They have also taken a self-interested position: the Court missed, that's not our fault. They have also taken a wilfully "unknowing" position: "What misconduct? It was just a fluke!" With no misconduct there is no reason to disturb the verdict. A billion dollars does not come easy and they will not lightly give it away.
  • So what about Velvin's fib. He was asked if he had ever been in litigation. He did not say "yes" and await follow-up questioning. He immediately volunteered one incident of litigation thus implying only one incident of litigation. If there were more, he had the obligation to inform the court. He did not. He misled them. One would like to ask Velvin why didn't he inform the Court of the other litigation involving Seagate/Samsung? Wasn't that more significant? Velvin has already gone on record as saying that he thought he only had to answer for ten years. However the judge did not limit it to ten years so there he is in another fib. He also has gone on record with an epiphany during deliberations that he had to defend the patents. He also admits improperly ruling out all prior art due to its incompatibility with Apple software, another plain error. He also took a punitive role on damages pronouncing the need to teach Samsung a lesson. Despite the fact that juror deliberations are sacrosanct and rarely second-guessed, the judge is going to have to guess with Velvin and all his issues --like improper damages, inconsistencies, haste and failure to deliberate. It's like everyone in jail says they are innocent, rarely enough it is true. Any of these issues in a vacuum may would not be enough to disturb a verdict, but all of them cause some cross-fertilization and severe doubt. The standard for the Judge will be whether she abuses her discretion --she has to determine the presumptive facts going forward and rule thereon. This decision will not be disturbed unless an appeals court finds that she abused her discretion. Will she ride with valor and back Velvin, Apple and the verdict, or will she discreetly say this is either wrong, biased and unfair? Let's do it over right.
  • So the question becomes: Does the Judge want to conclude the trial was "good enough" despite Velvin's performance and accept the verdict with modifications? That should be her bias since the trial was her product. But that would be assailable by some in any panel of judges. The easy way out is to find a mistrial and do it over better with no chance of as much controversy. She would not abuse her discretion by concluding that Velvin misled her. That would spare the lawyers, too.
Such delicious marvels --like watching Planet of the Apes, Sandy flood newsreels or Julia Child from the grave! Too much! What spicy apple twists will tomorrow bring?

~webster~

Made chicken jambalaya for tomorrow!

[ Reply to This | # ]

Have you stopped beating your wife?
Authored by: Anonymous on Wednesday, November 07 2012 @ 04:31 AM EST
Apple seem headed for that logical conundrum. As I understand it, Mr Hogan
was asked about his involvement in past court cases and did not disclose the
one involving Seagate. Whether that meant he was biased is really irrelevant. He

was asked a question and provided an answer that, to use a euphemism, was at
variance with historical fact.

Did Apple know that the answer was wrong? If not, how can it expect Samsung
to know. If they did know, then did they think it was okay for Mr Hogan to
deceive Samsung and the judge? If it is not okay not to be truthful, why did
they
not say something? I can see no answer Apple can give that does not make
them look inconsistent, dishonest, incompetent, or a mixture. No wonder they
don't want to answer at all.

[ Reply to This | # ]

What are the chances of Apple being caught in a lie?
Authored by: Anonymous on Wednesday, November 07 2012 @ 08:40 AM EST
I'm not saying that they would do so, but what if they had
known about this from the start, and lied now to say that
they had only found out from Samsung.

What chances would there be to catch such deception?

Presumably if caught, the penalty would be severe for the
lawyers' career, and for Apple's case, but it seems like it
would never be found out.

[ Reply to This | # ]

Motion to compel decision
Authored by: Anonymous on Wednesday, November 07 2012 @ 09:43 AM EST
Is there a set date by which the motion to compel will be decided?

[ Reply to This | # ]

questioning in good faith
Authored by: mcinsand on Wednesday, November 07 2012 @ 10:14 AM EST
The 'Samsung should have known' makes no sense to me, because assuming
disclosures in bad faith becomes prohibitively cumbersome to investigate. Apple
seemed to me to be claiming that Samsung should have been digging into every
statement. If that is true, then why bother with punishing anyone for perjury?
I can see going over testimony carefully, but jurors have a duty to be open and
honest in the screening process and, if they are not, then they are (or should
be) liable, not the court officials that expected prospective jurors to actually
follow instructions ... which is where the Big V had issues.

An earler poster could not have been more accurate; to know of misconduct
without disclosing that knowledge is misconduct. Attorneys that knew that
Velvin was not being openly honest were themselves failing to be open or
honest.

Regards,
mc

[ Reply to This | # ]

Question About Emails
Authored by: Anonymous on Wednesday, November 07 2012 @ 12:14 PM EST
I read those emails between the lawyers and do not understand why they are
important and what they prove. Anybody could explain please?

[ Reply to This | # ]

Apple Refuses to Answer Samsung's Q Re When It Learned About the Foreman's Seagate Litigation ~pj Updated
Authored by: Anonymous on Wednesday, November 07 2012 @ 04:44 PM EST
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.
Of course that is a yes or no question! It is true that "ever means ever", but that just means that there is no time limit to the yes or no question.

The question is just asking if something ever happened. The answer is "yes" if it ever happened and "no" if it never happened.

If someone asked you if you ever wrote a article for Groklaw, the answer would be "yes." If someone asked me, the answer would be "no." If someone asked me if I ever wrote a comment, the answer would be "yes."

[ Reply to This | # ]

Two thoughts occured to me...
Authored by: GriffMG on Saturday, November 10 2012 @ 03:24 PM EST
One, I bet there is a smoking gun that indicates Apple was informed of the
jurors little issue either during voir dire or just after - and they know that
if they deny it, that smoking gun will be in the public domain faster than
Windows 8 boots...

two, is it just possible that they are digging frantically for evidence to
suggest that any smoking gun actually came from Samsung indirectly?

---
Keep B-) ing

[ Reply to This | # ]

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