Samsung's trial lawyers have a propensity to engage in conduct that they later have to explain to the court. It's really strange that this always happens to them, and never to Apple's counsel:
First they didn't want to accept Judge Koh's exclusion of certain "evidence", which their client then gave to the press. Despite being asked by the court to specify their own role in the creation of that press release, they didn't explain (at least not in writing).
Then they showed several Samsung witnesses the courtroom (not while the court was in session, but they had apparently stipulated to a rule that no witness was going to enter the courtroom anytime during the trial period).
And on Wednesday, Magistrate Judge Paul S. Grewal gave Samsung until 5:00 PM local time on Thursday to "file a declaration either confirming or refuting the absence of any admission [of a trial lawyer who argued on Samsung's behalf on Tuesday] in the court's records". Let's look at this one more closely.
Judge Grewal's order doesn't name the lawyer, but she is uniquely identifiable as Susan Estrich, described by Wikipedia as a "lawyer, professor, author, political operative, feminist advocate, and political commentator for Fox News". The order refers to a female lawyer and a hearing on Tuesday regarding Samsung's "me too" motion for an adverse inference jury instruction. At that hearing, Samsung was represented (according to the official minute entry) by "Susan Estrich and Joseph Ashby".
On July 27, Judge Lucy Koh, the federal judge presiding over this litigation, set the rules at a case management conference. In a subsequent minute order and case management order, she summarized one of the rules as follows:
"ALL TRIAL LAWYERS must make appearances in this case and must be admitted in this District."
This could not have been louder or clearer, and it appeared as the third item on the first page of the order. But the problem is that the court's records show neither an entry of Ms. Estrich's appearance before she presented Samsung's argument at that hearing nor her admission to practice before the United States District Court for the Northern District of California. The former would usually be a mere formality and easily curable, but Judge Koh's explicit order that all trial lawyers had to enter an appearance before presenting an argument was undoubtedly violated. However, what Judge Grewal describes as "potentially a more serious breach" is the question of whether Ms. Estrich is admitted to this federal district's bar. Undoubtedly, Judge Grewal is aware of the fact that she is a law professor at the University of Southern California Law School, and he notes that "the requirements for admission to this district's bar may not be particularly onerous for one licensed to practice law in the State of California". Still, he stresses that the requirements for admission to this district's bar "are no mere formality".
Judge Grewal doesn't want to rush to judgment, and I guess that's because he's aware of the waves that sanctions against Samsung and a famous American lawyer, political activist and Fox News commentator could make. He doesn't rule out "the possibility that perhaps the error lies with the court and its recordkeeping". That's why Samsung's lawyers now have the chance to provide any documents that help clarify this question. He goes on to say the following:
"But if the court's records are not in error, the court will proceed to consider what further measures should be taken."
It will be very interesting to see what comes out of this. In a motion filed late on Wednesday, Samsung's counsel asked for a joint appeal hearing before Judge Koh in order to address both appeals against Judge Grewal's decisions on the adverse inference motions. Samsung previously asked Judge Koh for a de novo determination (a full review without any deference to Judge Grewal's decision on Apple's adverse inference motion), and it says (which makes sense) that whoever loses the decision on Samsung's own motion will also appeal. Samsung wants to ensure that both appeals are discussed together since Samsung's primary argument is that any duty to safeguard relevant emails on Samsung's part cannot precede Apple's duty to do the same. Apple, however, argues that only Samsung knew that it was going to continue to infringe and, thereby, provoke litigation.
Samsung's proposal that the court hear both appeals at the same time is logical no matter whether one agrees with its position on the issue. As long as Samsung's argument is not rejected by the court, there is a factual overlap, though Samsung would want to conflate the two motions anyway, even if only for psychological reasons. But if Samsung's argument on its own adverse inference motion was presented by a trial lawyer who lacked an admission to this district court's bar, then Samsung's motion might fail just on that basis and the court might not even reach the substantive part of the motion.
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