There will be a hearing in Apple v. Samsung I in Judge Lucy Koh's courtroom, Courtroom 8 on the 4th floor, on August 21 at 2:00 PM, so if any of you stalwarts can attend, that would be fabulous. You don't even have to wake up early.
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What's it about? Didn't they just have a case management hearing in April? Why yes. Yes, they did, but there have been "progress and changes" since, according to the parties' Joint Case Management Statement [PDF], which fills us in on the details. Both parties would like some changes since the last case management hearing. Here's the last joint case management statement, back in April. And the judge's order on April 30 was to go forward immediately with the damages trial, unless certain things happened in the USPTO reexaminations of Apple's patents at issue. Some of those things have almost happened, and there are other quirks, so some changes are being requested.
The real core issue is Samsung's '381 motion, asking for a new trial on Apple's '381 patent based on newly discovered evidence or for entry of judgment on liability. Apple Opposes with a capital O. It now wants another chance to file a sur-reply [PDF], which Samsung opposes [PDF], claiming that "Apple identifies no 'new' arguments Samsung raised in its reply that were not responsive to arguments in Apple’s opposition." The parties have been told that this motion wasn't on the calendar yet, but that they should be prepared to argue it on August 21. There is also the fact that the USPTO has found all relevant claims in the '915 patent invalid in a final office action. There can be more to come on that, but how does it impact the damages trial is the question?
And that is why we really should be there to hear it, if any of you can arrange your affairs to get there and be our eyes and ears. Samsung is telling the court that "Apple is attempting to 'sandbag' Samsung and obtain an unfair tactical advantage" by various proposals on how to go forward and by refusing to seriously meet and confer with Samsung. For example, Apple wants the judge to restrict the parties to the same exhibits used at the first trial. But that's not really fair in Samsung's eyes, because since that first trial, Apple has said things to the USPTO that conflict with what they said about the '381 and '915 patents at that trial:
Samsung does not believe the Court should limit the parties to the same exhibits disclosed prior to the first trial. For example, Apple has made numerous admissions to the USPTO subsequent to the first trial that directly contradict its arguments concerning the scope of the ’381 and ’915 patents. Apple should not be permitted to tell the Patent Office one thing and the new jury another. Samsung should be able to put this new evidence before the jury. Doing so would raise no issues concerning inconsistent appellate records because liability issues are not being retried and this damages trial will have its own separate record. Rather, the trial should be held based on an evidentiary record as it exists at the time of the new trial.If you can go, email me please and I'll tell you more.
[Update: We still need a volunteer.]
Jump To CommentsThe filings since we last looked in:
Yes, that's filing number 2,362 in this eternal litigation. And you thought *SCO* dragged on and on like molasses. At least these guys know how to litigate real issues, and that's why, to me, it's never boring. We are watching two sides, both very skilled at what they do, jockeying for positions that they hope will benefit their clients. Within limits, that's what lawyers are supposed to do. But if you recall, both sides were sanctioned for bad behavior, or at least over-the-top tactics before the first trial, so the question here for the judge will be, are they, one or both, doing that again?
07/29/2013 - 2350 - Order by Hon. Lucy H. Koh granting 2274 Motion to Intervene, granting-in-part and denying-in-part Motion to Seal.(lhklc3, COURT STAFF) (Filed on 7/29/2013) (Entered: 07/29/2013)
07/29/2013 - 2351 - Declaration of Hoshin Lee in Support of 2345 Administrative Motion to File Under Seal Apples Motion To Seal Regarding Apples Opposition To Samsungs Motion For New Trial Regarding 381 Patent Pursuant To Rule 59 Based On Newly Discovered Evidence Or, Alternatively, For Entry Of Judgment On Liab Declaration of Hoshin Lee in Support of Apple's Administrative Motion to File Documents Under Seal filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Related document(s) 2345 ) (Maroulis, Victoria) (Filed on 7/29/2013) (Entered: 07/29/2013)
07/29/2013 - 2352 - Administrative Motion to File Under Seal Samsung's Reply in Support of Motion for New Trial Regarding '381 Patent Pursuant to Fed. R. Civ. P. 59 Based on Newly Discovered Evidence or, Alternatively, for Entry of Judgment on Liability filed by Samsung Electronics Co. Ltd.. (Attachments: # 1 Trac Declaration, # 2 Proposed Order, # 3 Reply Brief, # 4 van Dam Supplemental Declaration, # 5 Exhibit 1, # 6 Exhibit 2)(Maroulis, Victoria) (Filed on 7/29/2013) (Entered: 07/29/2013)
07/31/2013 - 2353 - OPPOSITION to ( 2344 Administrative Motion to File Under Seal Apples Motion To Seal Regarding Apple Inc.s Motion To Modify April 29, 2013, Case Management Order Excluding Evidence Of Certain Infuse 4G Sales Or, In The Alternative, For Leave To Seek Reconsideration Of T ) Samsung's Opposition to Apple Inc.'s Motion to Modify April 29, 2013 Case Management Order Excluding Evidence of Certain Infuse 4G Sales or, in the Alternative, for Leave to Seek Reconsideration of that Order and to Clarify that the Order Applied Solely to the Infuse 4G filed by Samsung Electronics Co. Ltd.. (Attachments: # 1 Becher Declaration, # 2 Exhibit A)(Maroulis, Victoria) (Filed on 7/31/2013) Modified on 8/1/2013 (dhmS, COURT STAFF). (Entered: 07/31/2013)
07/31/2013 - 2354 - Proposed Order re 2353 Opposition/Response to Motion,, Proposed Order Denying Apple's Motion to Modify April 29, 2013 Case Management Order by Samsung Electronics Co. Ltd.. (Maroulis, Victoria) (Filed on 7/31/2013) (Entered: 08/01/2013)
08/02/2013 - 2355 - MOTION to Stay re 2350 Order on Motion to Intervene Unopposed Motion to Stay Effect of July 29, 2013 Order (Dkt. 2350) filed by Apple Inc.. Responses due by 8/16/2013. Replies due by 8/23/2013. (Attachments: # 1 Declaration of Mark D. Selwyn, # 2 Exhibit A, # 3 Exhibit B, # 4 Proposed Order)(Selwyn, Mark) (Filed on 8/2/2013) (Entered: 08/02/2013)
08/07/2013 - 2356 - REPLY MEMORANDUM in Support of (re 2343 MOTION To Modify April 29, 2013, Case Management Order Excluding Evidence Of Certain Infuse 4G Sales Or, In The Alternative, For Leave To Seek Reconsideration Of That Order, And To Clarify That The Order Applied Solely To The ) filed by Apple Inc.. (McElhinny, Harold) (Filed on 8/7/2013) Modified text on 8/8/2013 (dhmS, COURT STAFF). (Entered: 08/07/2013)
08/08/2013 - 2357 - Administrative Motion to File Under Seal filed by Apple Inc.. (Attachments: # 1 Public Redacted Version - Apple's Surreply to Samsung's Motion for New Trial Regarding '381 Patent Pursuant to Rule 59 Based on "Newly Discovered Evidence" or, Alternatively, for Entry of Judgment on Liability, # 2 Public Redacted Version - Balakrishnan Declaration, # 3 Exhibit A to Balakrishnan Declaration (Public Version), # 4 Exhibit B to Balakrishnan Declaration (Public Version))(McElhinny, Harold) (Filed on 8/8/2013) (Entered: 08/08/2013)
08/08/2013 - 2358 - MOTION for Leave to File a Surreply to Samsung's Motion for New Trial Regarding '381 Patent Pursuant to Rule 59 Based on "Newly Discovered Evidence" or, Alternatively, for Entry of Judgment on Liability filed by Apple Inc.. (Attachments: # 1 Declaration of Nathan Sabri, # 2 Proposed Order)(McElhinny, Harold) (Filed on 8/8/2013) (Entered: 08/08/2013)
08/08/2013 - 2359 - CERTIFICATE OF SERVICE by Apple Inc. (McElhinny, Harold) (Filed on 8/8/2013) (Entered: 08/08/2013)2360 - Filed & Entered: 08/10/2013
OPPOSITION to (  MOTION for Leave to File a Surreply to Samsung's Motion for New Trial Regarding '381 Patent Pursuant to Rule 59 Based on "Newly Discovered Evidence" or, Alternatively, for Entry of Judgment on Liability ) filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Proposed Order Denying Apple's Motion For Leave to File a Surreply)(Maroulis, Victoria) (Filed on 8/10/2013) Modified text on 8/12/2013 (dhmS, COURT STAFF).
2361 - Filed & Entered: 08/10/2013
Administrative Motion to File Under Seal Samsung's Opposition to Apple's Motion For Leave to File a Surreply filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Declaration of Joby Martin In Support of Samsung's Administrative Motion to File Documents Under Seal, # (2) Proposed Order)(Maroulis, Victoria) (Filed on 8/10/2013)
08/14/2013 - 2362 - CASE MANAGEMENT STATEMENT filed by Apple Inc., Samsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(McElhinny, Harold) (Filed on 8/14/2013) (Entered: 08/14/2013)
And it all matters. As you know, the reason there is a need for a new damages trial is because the jury did its math wrong. So that has to be fixed. But Samsung believes it got the infringement issues wrong too, and it's now a race between the USPTO reexamination process and Judge Koh's scheduling. Apple, naturally, wants to go forward immediately, because it's to its advantage to get a large damages award, even if on patents that are very questionable. Like Apple cares about that. Not.
Samsung would like to slow this down so it can get a clear indication from the USPTO as to whether or not these goofy patents are even valid. Why, it wonders, should Apple be awarded damages on invalid patents?
You may wonder about that yourself. The answer is simple. It's how the US patent system works currently. Or doesn't work, depending on whether you are Apple or are the rest of us. People get paid for lousy patents every day. That's one serious problem the US patent system faces, and it's why you hear so many calls to fix it. But Apple would like to benefit from the unfairness before anyone has a chance to fix it.
The disputes that are left include one regarding Apple's desire to use Julie Davis as substitute damages expert. Apple's expert, Terry Musika, died, which can happen in molasses litigation. So they are deposing her and rebutting and there's a briefing schedule on all that. There are administative motions on deck, too, and in addition to the '381 motion, there are two other main issues:
Apple’s motion regarding Infuse 4G first sale dates: Apple filed a Motion to Modify the April 29, 2013, Case Management Order Excluding Evidence Of Certain Infuse 4G Sales (Dkt. No. 2343). Samsung has opposed (Dkt. No. 2353). The motion is set for hearing on August 21, at the same time as the CMC.All of this, just to remind you, is in preparation for a damages trial, to decide how much Samsung owes Apple, after the jury got it so wrong. I'm sure you can figure out why Samsung would prefer a new trial on liability on the '381 patent first, rather than just going to damages on a patent that they may not have infringed in the first place, according to new evidence, they claim. This new case management hearing is to try to resolve some of the issues with the hope that the trial can be simplified.
Developments with the USPTO: Apple filed a Statement of Recent Decision Regarding Confirmation of Claim 19 of U.S. Patent No. 7,469,381 (Dkt. No. 2323). Samsung filed a Statement of Recent Decision Regarding Final Office Action by the USPTO Rejecting U.S. 20 Patent No. 7,844,915 (Dkt. No. 2349).
Each side presents how it wants things done from here on out. First Apple, beginning on page 3 of the PDF:
II. APPLE’S PROPOSALS FOR CASE MANAGEMENT AND TRIAL PREPARATIONAnd here's Samsung's, beginning on page 7 of the PDF:
On April 29, 2013, at the close of the last Case Management Conference in this case, the Court set August 21 as the date of the next CMC, with the express consent of Samsung’s counsel. The Court stated:But at this point, you know, August , you may be able to flag some issues that we can resolve that will help you in preparing...(April 29 Hearing Tr. 88: 1-3.)In this Case Management Statement, Apple has identified a number of the issues that have arisen as it plans for the November trial, in the hope of getting guidance from the Court. Many of these issues arose during the preparation of Apple’s Expert Report and were specifically identified to Samsung no later than June 24, when that report was served. Rather than attempting to meet and confer or to open any dialogue, Samsung moved to continue the trial date. (Dkt. No. 2326-4.)
Apple sent a proposed Neutral Statement on infringement and validity to Samsung on August 7 in order to start the meet-and-confer process on that statement. Apple sent a draft joint CMC statement to Samsung on August 9 in order to start the meet-and-confer process on that statement. As of August 9, Samsung had made no proposals of any kind to Apple or done anything to initiate the meet and confer process on any trial preparation issues. Last Sunday, August 11, Samsung responded not by meeting and conferring on any of the issues Apple raised, but simply by attacking Apple for trying to begin the meet and confer process. Samsung claims Apple has made no effort to meet and confer, but this is plainly untrue—Apple made two overtures, and Samsung has refused to respond.
Now, having refused to meet and confer, Samsung objects to discussing any of these subjects at a Case Management Conference, because its lead counsel has a conflict — which apparently existed at the time Samsung agreed to the CMC date.
It should be obvious that both parties have already begun to prepare for the trial. Issues have arisen, been identified, and even been briefed that need to be discussed with the Court. It will not be helpful to postpone these discussions until October.
Presenting infringement and validity to jury/neutral statement: The April 29, 2013, Case Management Order directed the parties to meet and confer regarding how to present information regarding infringement and validity to the jury. (Dkt. No. 2316 at 3.) Apple proposes that the Court read a neutral statement to the jury at the outset of the case to provide information about the prior trial and the nature of the new trial. This neutral statement would be in the nature of the type of preliminary instruction that this Court read to the jury at the start of the liability trial, explaining the nature of the proceeding. Among other things, the neutral statement would inform the jury that infringement and validity have been established and are not to be revisited.
As noted above, Apple provided Samsung with a draft neutral statement on August 7, 2013, to begin the meet-and-confer process on such a statement. For reference, the draft that Apple provided to Samsung is attached as Exhibit A. Samsung’s assertion that Apple is somehow “attempt[ing] to circumvent the meet and confer process” is inconsistent with the facts: Apple sent Samsung a first draft of a neutral statement a full week before the August 21 CMC, informed Samsung it wished to begin the meet-and-confer process, and proposed that the parties begin discussing the concept with the Court at the CMC.
Apple believes that the neutral statement also should inform the jury that the Court has determined the dates on which Samsung had notice of its infringement of each patent, and therefore the dates when damages can start running on each patent. Those dates would be included in the juror notebooks.
Disclosures of witnesses and deposition designations: The April 29, 2013, Case Management Order authorized Apple to substitute a new damages expert for Terry Musika. Apart from that substitution, Apple understands that the only witnesses and deposition designations that may be used at the new trial are those that were listed in the parties’ final pretrial submissions filed on July 23, 2012. That is, Samsung is limited to the witnesses and designations listed in Dkt. Nos. 1278 (excluding Appendix A, which was struck by the Court (see Dkt. No. 1293) and 1284), and Apple is limited to the witnesses and designations listed in Dkt. Nos. 1287 and 1290. Apple further understands that the witnesses’ testimony must be within the scope of the topics disclosed in those submissions.
Given that even those final witness and designation lists were lengthy, to facilitate the parties’ and Court’s preparation for trial, including the efficient resolution of objections, Apple proposes that the parties exchange witness lists and deposition designations well in advance of trial. To that end, Apple proposes that no later than September 23, 2013, the parties exchange lists of the witnesses and deposition testimony they intend to use at trial, other than solely for impeachment or rebuttal, together with a brief statement describing the substance of the testimony to be given. The parties would address any objections to the listed witnesses and deposition designations in connection with meeting and conferring regarding a Joint Pretrial Statement. The parties would include their final witness lists and deposition designations in the Joint Pretrial Statement to be filed on October 3, 2013 (14 days before the scheduled pretrial conference). Apple seeks the Court’s direction as to whether an earlier date for filing the Joint Pretrial Statement, and corresponding earlier dates for the parties to exchange witness lists, would assist the Court.
Samsung’s suggestion that the parties should be free to designate “any previously disclosed witness” is unreasonable and inconsistent with the Court’s directive, “You’ll have your same witnesses from last time.” (April 29 Hearing Tr. at 79:12-13.) Samsung’s pool of potential witnesses would apparently include not only the 50 live witnesses and 45 deposition witnesses Samsung disclosed, but the additional 112 witnesses it improperly disclosed in an appendix that the Court struck. (Dkt. No. 1293.) This prejudices Apple, who would be limited to the disclosure it served in compliance with the Court’s order, and rewards Samsung for ignoring the Court’s order. (Id. at 1 (“Samsung’s Appendix A is contrary to the letter and spirit of the Court’s Case Management Order.”).)
Samsung’s reference to R. Sukumar is grossly misleading. Samsung did not properly disclose Dr. Sukumar as a witness in the first trial—he was listed on Samsung’s improper Appendix A. Nevertheless, Samsung requested the Court’s permission to call Dr. Sukumar in Samsung’s case on its own patents. The Court found that exclusion of Dr. Sukumar’s survey would be unduly prejudicial to Samsung. (Dkt. No. 1749 at 3-4.) Dr. Sukumar testified for three minutes on direct examination solely regarding his survey and valuation of Samsung’s patents. (Trial Tr. at 3092:2-3095:15.) The issues that Dr. Sukumar discussed, which the Court believed it would have been unduly prejudicial to exclude from the first trial, are not present in this trial. Exhibit procedure: Apple believes that the Court should (1) limit the parties to the same exhibits disclosed in the parties’ July 2012 pretrial submissions; and (2) before trial, admit exhibits already admitted in connection with the first trial to avoid unnecessary argument and process regarding exhibits actually submitted to the first jury.
Samsung’s proposal that the parties should have a trial based on an entirely new set of exhibits is unwarranted and inconsistent with the Court’s directive. Samsung’s assertion that it needs new exhibits to respond to Julie Davis is also incorrect, as Ms. Davis’s opinion is strictly limited by the Court’s order to the methodologies and data used by Apple’s first expert, Terry Musika. 6 Time allocation: Apple believes the trial time allotted by the Court should be split evenly between the parties. Assuming November 12, 2013, is taken up entirely by jury selection, this would leave 26 hours of trial time (6.5 hours per day on November 13, 14, 15, and 18). Apple therefore proposes that each party be allotted 13 hours of trial time, including time for opening statements and closing arguments.
Motions in limine: Apple is mindful that the Court’s prior rulings on the parties’ motion in limine remain in effect and may not be relitigated. It is possible, however, that new issues may arise in connection with the new trial. Accordingly, Apple proposes that the Court permit the parties to file motions in limine solely on issues that are not controlled by the Court’s prior rulings. Apple proposes that any motions in limine be filed on October 3, and oppositions be filed on October 7 (14 days and 10 days before the scheduled pretrial conference).
III. SAMSUNG’S STATEMENT REGARDING APPLE’S PROPOSALS FOR CASEWho cares about such minutia, you ask? The clients. Because how the judge rules can matter a lot in how a trial plays out. I'll give you an example. Remember at the first trial how each side was limited in how long they each had? Well, if one side has to cover 6 issues, let's say, at a trial and the other has to cover 12, you can see that the side with more issues is going to run out of time. In fact, Samsung did. If one side runs out of time, maybe it only gets to use most of its exhibits but not all the exhibits it placed on the list in anticipation of trial. If there is a second trial, and now there are only 5 instead of 12 issues, that party will want to cover what it couldn't cover in the first trial because it ran out of time and couldn't put a witness on the stand or had to rush through without reaching all the exhibits.
MANAGEMENT AND TRIAL PREPARATION
Samsung has requested relief from the current schedule in its pending Administrative Motion for Relief, as well as in its Motion for a New Trial Regarding ’381 Patent. In the event the Court wishes to hear further case management proposals for the current schedule, Samsung believes the majority of the issues Apple requests the Court to address are unripe and motivated by Apple’s improper attempts to seek tactical advantage.
On August 9, 2013, just three business days before the filing deadline, Apple served Samsung with its draft portion of this Joint Statement. Apple’s portion raises trial management issues and proposed deadlines that will affect the scope and substance of the new trial, as well as Samsung’s preparations for trial. In particular, Apple proposes limitations on witnesses, deposition designations, and trial exhibits that are clearly prejudicial to Samsung. Yet, Apple never notified Samsung it would raise these issues at the August 21 CMC, and made no effort to meet and confer with Samsung about them. Moreover, given the importance of these issues, Samsung’s lead counsel for the new trial, Bill Price, would appreciate the opportunity to discuss them with the Court. However, Mr. Price is heading into a trial and is not able to attend the August 21 CMC. Samsung requested that Apple agree to a brief continuance of the CMC, but Apple has indicated its lead counsel is unavailable for a six-week period encompassing all the potential alternative dates. Samsung also requested that the parties postpone discussion of Apple’s new issues with the Court, but Apple refused. See Exhibit B attached hereto.
Instead, Apple claimed that it had raised some of these issues in its portion of the April 22, 2013 Joint Statement Regarding Further Post-Trial Proceedings. See Exhibit B. But most of the issues it now raises and all of its proposed new deadlines were never mentioned on April 22, 2013. What is more, making vague proposals months before trial is scheduled and a Case Management Order is entered is not the same as meeting and conferring on specific proposals and deadlines. Apple next claims that the issues it now raises for the first time were disclosed in Julie Davis’s June 24, 2013 Expert Report. When pressed about where in Ms. Davis’s Report Apple had disclosed its specific proposals concerning trial logistics, Apple could only respond that Samsung’s Administrative Motion concerning Ms. Davis’s Report raised the issue of “whether trial witnesses will be recalled or whether, in the new trial, the prior testimony will be given by a damages expert,” and “whether previous trial exhibits need to be modified to reflect the smaller group of accused devices.” See Exhibit C. Neither of these issues have been raised by Apple for discussion at the CMC, and nowhere in Ms. Davis’s Report does she discuss the proposals that it has.
As a result of Apple’s tactics, Samsung will not have its lead trial counsel at the August CMC to address these issues, which are in any event unripe. Apple is attempting to “sandbag” Samsung and obtain an unfair tactical advantage. Apple’s tactics will also burden the Court with having to address disputes that could conceivably be resolved were Apple willing to discuss them. Samsung thus requests that the Court delay any decision on these issues until after Samsung has had the opportunity to properly consider them, the parties meet and confer, and Samsung’s lead trial counsel is available to address any disputes with the Court. Samsung has already indicated to Apple its willingness to meet and confer on these issues and to schedule a further case management conference in the event the parties are unable to agree.
Nonetheless, in the event the Court declines Samsung’s request, Samsung hereby offers its preliminary views on Apple’s new proposals:
Presenting infringement and validity to jury: The Court’s April 29, 2013 Case Management Order directed the parties to “meet and confer regarding how to present information regarding infringement and validity to the jury.” (Dkt. No. 2316 at 3:15-16.) On August 7, just one week before the deadline for this Statement, Apple served a purported “neutral” statement “[t]o start this meet-and-confer process.” See Exhibit B. The date set by the Case Management Order to address this issue is October 17, 2013, a date expressly agreed to by Apple at the last CMC.
In these circumstances, one would think that Samsung has ample time to consider Apple’s August 7 proposal and to meet and confer with Apple to attempt to formulate language acceptable to both sides. Yet, Apple now seeks to abridge Samsung’s time to consider Apple’s August proposal, circumvent the meet and confer process, and de facto amend the Case Management Order by raising the issue at the August 21 CMC. While Apple assures Samsung that it does not expect it to “finalize” its position by August 14, and that “the Court will want to know that the parties are in discussion,” this is belied by Apple’s proposed agenda item, below: “Address parties’ proposals regarding how infringement and validity should be presented to the jury via neutral statement or otherwise.” (Emphasis added.) Samsung is considering Apple’s proposal and is willing to meet and confer in the hopes of formulating common language. However, the Court should reject Apple’s attempt to circumvent the meet and confer process, gain an unfair advantage, and de facto amend the Case Management Order by advancing the discussion of issues on which there was already an agreed-upon timetable.
Disclosures of witnesses and deposition designations: Samsung believes that a limit on the total number of witnesses each side may designate and call at trial would be appropriate, but subject to such numerical limit, each side should be free to designate in pre-trial disclosures and call any previously disclosed witness. As Samsung indicated at the April 29, 2013 hearing, Apple is improperly attempting to prevent Samsung from being able to call witnesses – including Samsung’s survey expert, R. Sukumar, who was properly disclosed in Samsung’s July 7, 2012 witness list (Dkt. No. 1193-1) and testified at the earlier trial – on the pretext that they are disclosed on Appendix A of the July 23, 2012 version of Samsung’s witness list. Apple seeks to exploit Samsung’s good faith efforts to narrow its witness lists given the time constraints of the earlier trial by now excluding witnesses who pose no prejudice to Apple. The parties' final witness lists in the first trial were crafted to meet the Court’s 25-hour limit on both damages and liability testimony. Samsung would obviously have made very different choices had it known that it would be constrained by this final list at a new trial focused solely on damages and with additional time to present its damages case. Samsung’s proposal would obviate Apple’s purported concern about lengthy “witness and designation” lists, and will cause no prejudice because all of the witnesses have previously been disclosed. Samsung is willing to meet and confer with Apple to attempt to reach agreement on an appropriate number.
At the April 29 Case Management Conference, Apple agreed to a Pre-Trial Conference on October 17, 2013. Under Federal Rule of Civil Procedure 26(a)(3)(B), pre-trial disclosures are thus due on October 11, 2013. At no point during the April 29 Case Management Conference did Apple request early pre-trial disclosures, nor did it ever raise the issue with Samsung before servicing its portion of this Statement on August 9, 2013. Subject to the Court’s ruling on Samsung’s Administrative Motion for Relief from April 29, 2013 Case Management Order (Dkt. No. 2326), Samsung has been preparing for trial and scheduling various pre-trial preparations on the basis of the Federal Rules. To change this now, and order that Samsung must serve its pre-trial disclosures in just six weeks, would prejudice Samsung’s trial preparation. Moreover, the Court specifically chose a pre-trial conference date that would occur after the October 10, 2013 hearing. Indeed, it makes sense for pre-trial disclosures to be exchanged after the October 10 hearing on the parties’ motions to strike and any Samsung Daubert motion. That way, the parties can make final adjustments to their witness and exhibit lists in light of the Court’s guidance on the scope of damages expert testimony each side will be permitted to present.
Exhibit procedure: Samsung does not believe the Court should limit the parties to the same exhibits disclosed prior to the first trial. For example, Apple has made numerous admissions to the USPTO subsequent to the first trial that directly contradict its arguments concerning the scope of the ’381 and ’915 patents. Apple should not be permitted to tell the Patent Office one thing and the new jury another. Samsung should be able to put this new evidence before the jury. Doing so would raise no issues concerning inconsistent appellate records because liability issues are not being retried and this damages trial will have its own separate record. Rather, the trial should be held based on an evidentiary record as it exists at the time of the new trial.
In the event the Court declines to accept Samsung’s position, an exception should be made with respect to Ms. Davis. In light of Mr. Musika’s passing, Samsung consented to Apple’s substitution of a new damages expert for the new trial, Ms. Davis. However, Samsung obviously never had the opportunity to depose Ms. Davis before pre-trial exchanges leading up to the first trial. Therefore, Samsung never had the opportunity to designate exhibits that would be useful for cross-examination of Ms. Davis and rebuttal testimony in light of her specific background, the assignments she was given, and the work performed in reaching her opinions. Under Apple’s proposal, Samsung would not even be allowed to designate exhibits used during Ms. Davis’s deposition, which will give Apple adequate notice and cause no prejudice.
The Court should reject Apple’s proposal to admit exhibits simply because they were admitted at the first trial. Numerous exhibits admitted during the first trial – such as those directed to liability, willfulness and trade dress claims – will have no relevance to the new trial. The pre-trial process requires the parties to attempt to stipulate to the pre-admission of exhibits and Samsung is willing to meet and confer with Apple to reduce the scope of any disputes. However, ordering a blanket admission of numerous exhibits without regard to their relevance and potential prejudice would be highly prejudicial to Samsung.
Samsung proposes that remaining issues about exhibits be addressed in accordance with the usual pre-trial procedures before the Court’s scheduled Pre-Trial Conference on October 17, 2013.
Time allocation: Samsung believes that Apple’s assumption of only one day of jury selection is optimistic in light of the extensive media attention devoted to this case and the trial’s venue. Nonetheless, Samsung is amendable to dividing any remaining time equally between the parties.
Motions in limine: Samsung agrees that the parties should be permitted to file a limited number of motions in limine, and is willing to meet and confer with Apple concerning an appropriate number. However, depending on the number of motions, it is likely that Apple’s proposed briefing schedule – which leaves just four days for oppositions – is too compressed. Samsung proposes that the parties meet and confer concerning the number of such motions and thereafter attempt to agree on a more realistic briefing schedule.
See how a small detail like how much time the parties will be granted at trial can have huge consequences?
So here are the parties' suggestions on what to address at the case management hearing:
V. PROPOSED AGENDAS FOR CMCApple mentions in number 2 that there was a scheduled hearing date for the '381 motion for today. But I gather somehow that's changed and it will be heard instead on the 21st.
Samsung’s Proposed Agenda1. Address the effect of the PTO’s recent actions on the new trial and expected timeline for resolution concerning the ’915 patent.Apple’s Proposed Agenda
2. Address any questions by the Court concerning Samsung’s Administrative Motion for Relief from April 29, 2013 Case Management Order.
3. Argument on Samsung’s Motion for New Trial Regarding ’381 Patent Pursuant to Fed. R. Civ. P. 59 based on Newly Discovered Evidence or, Alternatively, for Entry of Judgment on Liability.
4. Argument on Apple’s Motion to Modify the April 29, 2013, Case Management Order Excluding Evidence Of Certain Infuse 4G Sales.
5. Address schedule for motions to strike and any Daubert motion from Samsung.1. Address schedule for motions to strike and any 702 motion regarding Ms. Davis’s qualifications from Samsung.
2. Argument on Samsung’s ’381 motion (assuming motion was not heard at scheduled hearing date).
3. Argument on Apple’s Motion to Modify the April 29, 2013, Case Management Order Excluding Evidence Of Certain Infuse 4G Sales.
4. Address parties’ proposals regarding how infringement and validity should be presented to the jury via neutral statement or otherwise.
5. Address proposals regarding disclosures of witnesses and deposition designations.
6. Address proposals regarding motions in limine.