updated 06:22 pm EDT, Wed September 26, 2012
Samsung claims 1993 trial versus Seagate prejudiced foreman
Late Tuesday, Apple filed its response to Samsung's accusations of jury misconduct, primarily involving the jury foreman. Apple claims that "Samsung is attacking the jury verdict based on alleged juror misconduct" and that the attacks against both the jury as a whole and against Velvin Hogan directly are "baseless, and its jury misconduct motion frivolous on its face." Samsung is seeking an overturn of the jury's billion-dollar verdict against it based on the alleged misconduct, and a retrial.
Jury Foreman Velvin Hogan was hired by Seagate in the '80s. As a result of the hiring, he was required to move from his extant home in Colorado to Seagate's location in California. Seagate agreed to split the cost of the mortgage on the Colorado home. Hogan was a victim of layoffs in the early nineties, and Seagate claimed that Hogan needed to repay the mortgage money to the hard drive manufacturer. Hogan sued Seagate for fraud in 1993 with a countersuit filed by Seagate, ultimate forcing Hogan to file for personal bankruptcy to protect his home.
Samsung law firm Quinn Emanuel is arguing that Judge Lucy Koh needs to hold a hearing to determine whether the 1993 litigation can be used to negate the jury finding of mass infringement of Apples patents by Samsung. Hogan told Reuters that he didn't disclose the 1993 Seagate case or bankruptcy forced by the case during the jury selection because he wasn't specifically asked to disclose every case he had ever been in. Hogan did answer that he had been involved in litigation previously, and provided some information, but didn't discuss the matter with Seagate from nearly two decades ago.
Hogan's remarks to the press after the trial ended is leading Samsung to question whether the jury leaned on the foreman too heavily for analysis of the sometimes muddled testimony presented at the trial and calculations of damages. Samsung wants Judge Koh to hold a hearing with the jury members to have a discussion about the depth of the reliance on Hogan.
Apple is condemning this effort to mudsling the jurors. Apple disputes the timing of the filing, saying "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."
Apple says that the information given by the jury during selection in July was sufficient to determine if there would be any misconduct by the jurors based on prejudice from prior court cases. Patent analyst Florian Mueller believes that "It's pretty clear that Samsung only took issue with the jury after it received a verdict that it understandably doesn't like."
In one of Samsung's many post-trial motions, Quinn Emanuel has asked that neither Apple nor Samsung be allowed to talk to members of the jury, in order to protect jurors from "extra-judicial scrutiny and public criticism." The order as filed, only applies to Apple and Samsung, and not members of the media.
Apple believes that Samsung has already contacted some of the jurors, and wants to deny Apple the same opportunity, and says that "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's response notwithstanding, Samsung faces an uphill battle trying to convince the judge to call the jurors in to court for a hearing regarding conduct. Santa Clara patent law professor Brian J. Love said in a tweet that the Federal Rules of Evidence rule 606(b) has set the bar very high -- in another case, even evidentiary proof that the jurors drank heavily and used marijuana and cocaine at lunch breaks wasn't enough to call the jurors back to negate a verdict based on jury misconduct.
Rule 606(b)(2)(A) allows an exception for "extraneous prejudicial information was improperly brought to the jury's attention," but the foreman's prior legal involvement with Seagate seemingly has very little to do with Samsung, so proving that Hogan provided the extraneous prejudicial information would be difficult at best.
The case was brought by Apple after Samsung ignored warnings in 2010 from both the iPhone maker and its rival Google that Samsung's products were too derivative of Apple's designs in both trade dress and software. Apple has accused the company of "slavishly" copying from its innovations, down to the particular shade of green used in the identical "phone" icon.
Samsung countersued Apple, claiming it had in fact infringed on two of Samsung's patents, for which it asked for $400 million in compensation. The claims from Samsung were wholly rejected, and the company was awarded nothing. Another jury trial on different patent matters which spawned the sales injunctions on the Galaxy Tab 10.1 and Galaxy Nexus smartphone between the two giants is likely to take place in late 2013 or 2014.