Late on Tuesday, Apple filed a first response to Samsung's allegations of jury misconduct. Apple does not oppose Samsung's motion to seal all of its related accusations but wonders why Samsung brings such a motion after it "failed to redact enough material from its jury misconduct motion and supporting papers to keep the substance of its allegations secret", a failure that enabled the media to identify that Samsung's attacks target jury foreman Velvin Hogan. What Apple does oppose is Samsung's request that the parties be barred from contacting members of the jury. That request doesn't make sense to Apple given that the media would still be free to talk to any of the jurors, and in light of the willingness of several jurors to give interviews.
On Sunday I posted my overall assessment of Apple's and Samsung's Rule 50 motions and noted that at least one item of the table of cited authorities revealed mudslinging against Mr. Hogan. I brought up only that one citation and then went on to comment on numerous other aspects of the parties' Rule 50 motions. ThomsonReuters' Alison Frankel and Dan Levine engaged in more extensive research on the jury misconduct question and, among other things, found out that a dispute with Seagate apparently drove Mr. Hogan into bankruptcy in the early 1990s. They also talked to him about it, and his comment was that Samsung's lawyers have "a job to do", which he says he doesn't hold against them. Nevertheless I doubt that he was happy to see this kind of story surface.
That very well-researched ThomsonReuters story is only one of the media reports Apple attached to its brief. The first article to be referenced by Apple's filing is this San Jose Mercury News story as an example of widespread "reporting that Samsung is attacking the jury verdict based on alleged juror misconduct". Apple points to this CNET article to show that "Samsung's attack on the jury's verdict began with Samsung's issuance of a stinging press release after the reading of the verdict on August 24". A Korea Times article serves to show that the jury foreman "is the target of Samsung’s jury misconduct motion". And in connection with the willingness of some jurors to talk to the media, Apple points to a Wall Street Journal article.
Apple condemns Samsung's attempt to get a new trial on the basis of jury misconduct:
"Samsung's attacks are baseless, and its jury misconduct motion frivolous on its face."
Apple's contradiction is based on several arguments. One of them is timing: "Among other failings, Samsung's motion does not even address, let alone disclose, when Samsung learned the facts on which it bases its misconduct allegations, and in particular, whether Samsung impermissibly delayed raising this issue, as the facts Samsung does disclose suggest." In this regard, Apple points to a ruling in which an appeals court deemed jury misconduct arguments waived since the information disclosed at the time of jury selection (late July, by the way) would have permitted discovery of the information underlying the allegation. Apple wants this timing issue to be clarified. Footnote 1 of its filing says:
"On the afternoon of September 24, Apple asked Samsung to disclose how and when it learned of each of the facts underlying its allegations and notified Samsung of its intent to file an expedited motion to compel such disclosure if Samsung does not provide it voluntarily. Apple is waiting for Samsung's response."
It's pretty clear that Samsung only took issue with the jury after it received a verdict that it understandably doesn't like.
Apple has no problem with the court granting Samsung's sealing request, but it's clear that Apple doesn't see a point in it. If Samsung had really wanted to hide this whole misconduct issue from the public, it could also have redacted its table of authorities. It's not just about which parts of Samsung's motion must be filed but also about Apple's forthcoming reply. Apple is flexible. It has nothing to hide and is willing to file its response publicly.
What Apple is absolutely against is a court order that the parties not talk to members of the jury. Again, the timing of Samsung's motion doesn't make sense to Apple. And more fundamentally, "[t]his [requested] relief is not the proper subject of an administrative motion and can be denied on that ground alone", but if the court considers it anyway, Apple wants that part of the motion to be denied on its merits.
Apple's first argument is that "Samsung's requested order would not serve Samsung's stated purpose of protecting jurors from 'extra-judicial scrutiny and public criticism.'" The order would enjoin only the parties, not the media. Apple says it "has no intention of subjecting jurors to unwanted scrutiny or criticism, and Apple's Rule 50 and 59 motion did not provide any grounds for doing so", but "Samsung offers no basis for the Court to prevent Apple from contacting jurors until Samsung's JMOL Motion is fully resolved, which presumably includes any appeal". Apple is concerned that Samsung may have contacted some jurors and now wants to deny Apple the same opportunity. In that event, Samsung would already have obtained all the information that is useful to it, and the rest of the world would remain free to talk to any of the jurors, but only Apple would be restricted in its ability to defend its rights.
Apple also points to other cases in which post-verdict interviews were deemed proper under certain circumstances.
What I like about Apple's motion is that Apple is at the same mindful of the jurors' privacy and not at all afraid to discuss in public what needs to be addressed because of Samsung's initiative. I continue to be very skeptical of Samsung's chances of winning a new trial on the grounds of misconduct. It wouldn't even be easy to hold a hearing at which the jurors have to testify. Federal Rule of Evidence 606(b) allows only some very limited exceptions under which jurors may serve as witnesses on what happened in the same case. As Professor Brian Love noted on Twitter, even "[e]vidence jurors drank heavily [and] used marijuana [and] cocaine at lunch breaks [is apparently] not enough", pointing to the pretty astounding Tanner v. United States affair (Wikipedia summary, full text of Supreme Court decision). If you're looking for a story on a jury that really misbehaved in unbelievable ways, Tanner is an example next to which anything Samsung appears to allege in Apple v. Samsung pales in comparison, if there can be any comparison at all.
Maybe Judge Koh will find a way to ensure that this sideshow ends sooner rather than later.
On a related note, a Korea Times article said that Samsung and Google were going to have a high-level meeting in Seoul today, with the patent situation being on the agenda.
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