Unredacted Filings Reveal Claims of Juror Misconduct in Apple vs Samsung Trial 282
zaphod777 writes with this bit from Groklaw on more Jury related intrigue in the Apple-Samsung trial: "Samsung has now filed an unredacted version [PDF] of its motion for judgment as a matter of law, a new trial, and/or remittitur. That's the one that was originally filed with a redacted section we figured out was about the foreman, Velvin Hogan. The judge ordered it filed unsealed, and so now we get to read all about it. It's pretty shocking to see the full story. I understand now why Samsung tried to seal it. They call Mr. Hogan untruthful in voir dire (and I gather in media interviews too), accuse him of 'implied bias' and of tainting the process by introducing extraneous 'evidence' of his own during jury deliberations, all of which calls, Samsung writes, for an evidentiary hearing and a new trial with an unbiased jury as the cure."
It would seem that everyone's favorite foreman did not disclose that he was sued by Seagate for breach of contract, and that he may have had a chip on his shoulder considering that Samsung is the largest single shareholder of Seagate.
Re:He didn't disclose what he wasn't asked (Score:5, Informative)
The article says 10 years, but I'm not sure where that comes from.
The Samsung filing states he was asked “you or a family member or someone very close to you [has] ever been involved in a lawsuit, either as a plaintiff, a defendant, or as a witness?"
i.e. no time qualifier
Re:He didn't disclose what he wasn't asked (Score:5, Informative)
He was asked if he was involved in any lawsuits within the last ten years, which he answered. The lawsuit with Seagate occurred in 1993 which is beyond ten years ago. Thus, he did not disclose it because it wasn't asked of him. But let's pretend he attempted to deceive the system in order to screw over Samsung because that sounds better, right?
(emphasis mine)
Where do you get "within the last ten years", it is not in the summary, the article, or the unredacted filing, which says:
“you or a family member or someone very close to you [has] ever been involved in a lawsuit, either as a plaintiff, a defendant, or as a witness?” (Reporter’s Transcript (“RT”) 148:18-21), he disclosed one such lawsuit but failed to disclose two others, including one in which he was sued by his former employer, Seagate, for breach of contract after he failed to repay a promissory note (RT 148:22-150:12; Seagate Tech., Inc. v. Hogan, Case No. MS-93-0919 (Santa Cruz Mun. Ct. June 30, 1993), Declaration of Susan Estrich (“Estrich Decl.”) Ex. A), and filed for personal bankruptcy six months later (In re Velvin R. Hogan and Carol K. Hogan, Case No. 93-58291-MM (Bankr. N.D. Cal. Dec. 27, 1993); Estrich Decl., Ex. B).
Re:He didn't disclose what he wasn't asked (Score:5, Informative)
the court: okay. welcome back. please take a seat. we had a few more departures in your absence. let's continue with the questions. the next question is, have you or a family member or someone very close to you ever been involved in a lawsuit, either as a plaintiff, a defendant, or as a witness?
from the voir dire transcript [groklaw.net]
Re:I think for lying during selection (Score:5, Informative)
Re:He didn't disclose what he wasn't asked (Score:5, Informative)
The '10 years' comment comes from an interview that the juror gave. The transcript does not back up his statement. He may have misunderstood, or maybe the transcript was wrong (I'd think unlikely). But that's the story.
Re:He didn't disclose what he wasn't asked (Score:5, Informative)
He was asked if he was involved in any lawsuits within the last ten years, which he answered. The lawsuit with Seagate occurred in 1993 which is beyond ten years ago. Thus, he did not disclose it because it wasn't asked of him. But let's pretend he attempted to deceive the system in order to screw over Samsung because that sounds better, right?
(emphasis mine)
Where do you get "within the last ten years", it is not in the summary, the article, or the unredacted filing, which says:
“you or a family member or someone very close to you [has] ever been involved in a lawsuit, either as a plaintiff, a defendant, or as a witness?” (Reporter’s Transcript (“RT”) 148:18-21), he disclosed one such lawsuit but failed to disclose two others, including one in which he was sued by his former employer, Seagate, for breach of contract after he failed to repay a promissory note (RT 148:22-150:12; Seagate Tech., Inc. v. Hogan, Case No. MS-93-0919 (Santa Cruz Mun. Ct. June 30, 1993), Declaration of Susan Estrich (“Estrich Decl.”) Ex. A), and filed for personal bankruptcy six months later (In re Velvin R. Hogan and Carol K. Hogan, Case No. 93-58291-MM (Bankr. N.D. Cal. Dec. 27, 1993); Estrich Decl., Ex. B).
It's in several other articles [bloomberg.com] since:
Hogan, in a phone interview yesterday, denied that there was any misconduct, saying the court instructions for potential jurors required disclosure of any litigation they were involved in within the last 10 years -- and that the 1993 bankruptcy and related litigation involving Seagate fell well outside that time range.
“Had I been asked an open-ended question with no time constraint, of course I would’ve disclosed that,” Hogan said, referring to the bankruptcy and related litigation. “I’m willing to go in front of the judge to tell her that I had no intention of being on this jury, let alone withholding anything that would’ve allowed me to be excused.”
Note: I'm not saying he's right and the Samsung brief is wrong - just that that's where the 10 year claim comes from.
If you have a PACER account, you should be able to pull up the Court Reporter's transcript from voir dire, and see what question was asked.
Re:He didn't disclose what he wasn't asked (Score:5, Informative)
Re:He didn't disclose what he wasn't asked (Score:4, Informative)
"With regards to the Seagate suit and subsequent bankruptcy, Hogan says the court required jurors to disclose any litigation they were involved in within the last 10 years -- which he did. The 1993 Seagate business fell well outside that time range."
http://tech.fortune.cnn.com/2012/10/03/samsung-attacks-foreman-of-jury-that-awarded-apple-1b/ [cnn.com]
Re:I think for lying during selection (Score:4, Informative)
All of that is irrelevant, he was asked by the judge to list all previous cases he'd been involved in and he didn't mention this specific one. That's contempt of court, simple as that, it's a pretty clear cut case when someone is asked a simple question and doesn't.
Dating back many centuries this has been recognised as a problem in court that is hence punishable, it is in fact why British courts went from saying "I promise to tell the truth, and nothing but the truth" to saying "I promise to tell the truth, the whole truth, and nothing but the truth" precisely because people tried to get away with missing bits out like this guy - i.e. not actually telling the whole truth.
Don't think he got a chance to mention other cases (Score:1, Informative)
I read the transcript from voir dire. Given the way that the questions were asked, I don't think that Mr. Hogan was given the opportunity to mention the other cases.
He described the most recent case and indicated that it wouldn't affect his ability to be a good juror. Then the next person was asked about their case. Then the question was asked of "anyone else".
In my brief experience in court, one lesson that my lawyer taught me was to honestly answer questions, but don't offer info not asked for. Mr. Hogan was never asked about additional court cases after he described the most recent one.
Re:He did as he was asked (Score:5, Informative)
At the time of his lawsuit (1993), Seagate wasn't owned by Samsung. And wouldn't be for more than a decade later, until 2011.
Re:He didn't disclose what he wasn't asked (Score:5, Informative)
It's marked troll because it's incorrect. Groklaw has the transcripts, he was asked if he was ever involved in any such lawsuits with no time constraints. 10 years was never mentioned or asked
In other words he decided on 10 years (Score:5, Informative)
Guess what? He doesn't get to make that decision. The judge wanted to know ever? That's the judge's call. When it comes to jury selection, they get to decide what is relevant. Doesn't mean you'll be excluded, but they want to know.
For example I was in the pool for a marajuna case (way at the end, so unlikely I'd get on the jury) and the subject of criminal record came up. For employment they can ask about felonies in the last I believe 7 years. The court has wider latitude for juries. So one guy, he was probably 45 or 50, says ya I have a guilty plea for auto theft when I was 18. Judge asks more about it, it was a "young and stupid" kind of thing, his civil rights have been fully restored, and so on. He ended up being on the jury.
It is the kind of thing he wouldn't reveal to an employer, but the court got to ask. They weren't dicks about it, like I said he sat on the jury, but the judge gets to weigh it and make a decision.
So CPT Armchair Lawyer here doesn't get to decide how long they are allowed to ask about. If they asked ever, they get to ask ever.
The Real Reason Samsung Lost. (Score:1, Informative)
Samsung was destroying emails and manipulating the discovery process.
http://internationaledisclosure.blogspot.com/2012/09/apple-v-samsung-largest-international.html [blogspot.com]
Here's what the judge had to say:
“Apple sought a finding that Samsung spoliated evidence, and as a sanction for such conduct, an adverse inference jury instruction “to the effect that: (1) Samsung had a duty to preserve relevant evidence, including emails; Samsung failed to preserve large volumes of relevant emails and other documents; Samsung acted in bad faith in failing to preserve the relevant documents; and the jury may presume that the documents that Samsung failed to preserve would have been favorable to Apple's case and unfavorable to Samsung; and (2) if the jury finds infringement of any Apple patent, trademark, or trade dress, that jury may infer that the infringement was intentional, willful, and without regard to Apple's rights.”
The jury was issued an Adverse Inference Instruction by the judge.
http://en.wikipedia.org/wiki/Adverse_inference [wikipedia.org]
Quote from Wikipedia:
"The United States Court of Appeals for the Eighth Circuit pointed out in 2004, in a case involving spoliation (destruction) of evidence, that "...the giving of an adverse inference instruction often terminates the litigation in that it is 'too difficult a hurdle' for the spoliating party to overcome. The court therefore concluded that the adverse inference instruction is an 'extreme' sanction that should 'not be given lightly'...".
Judge: "Assume Samsung is guilty. Feel free to be as impartial as you wish to be."
Jury: "Sweet. We'll be back in a few hours and can go home early."
The critical point in all of this is that Velvin Hogan's personal feelings were legally allowed to be part of the decision making process at that point. There is no misconduct.
Re:The Real Reason Samsung Lost. (Score:0, Informative)
Bzzzzt, wrong, they both have lost emails from same period and judge applied same reasoning to both [fosspatents.com]. In the end, nothing about adverse inference was left in jury instructions. Do try harder.
Re:In other words he decided on 10 years (Score:4, Informative)
Anybody can read the transcript, and there is no mention of a time period. As for whether there were 'other' instructions that said 10 years - who knows? However, in the transcript you can see where other jurors mentioned cases more than 10 years old, and the judge did not say 'I don't care about those'. Instead, he asked those jurors the exact same questions he asked everyone else.
Re:Why seal? (Score:2, Informative)
Because Samsung's lawyers are going to come out of it looking very stupid.
1. He was asked a yes or no question.
2. He answered yes, truthfully.
3. No followup questions were asked based on his first answer.
This will probably get thrown out the first time the judge lays eyes on it.
Re:The Real Reason Samsung Lost. (Score:5, Informative)
Better not to link to 'that site' (f.o.s.s.patents) as it is run by the notorious you_pay_for_what_I_say F.Mueller.
Here is the story on inverse inference [groklaw.net] on Groklaw. While some may claim that site is biased as well (against software patents in this case) there is no money involved, just personal and professional conviction - and common sense of course.
Re:He didn't disclose what he wasn't asked (Score:5, Informative)
I see you get your knowledge of this stuff from movies.
This was jury selection, not the trial. The judge was asking questions, not the attorneys. The juror is not on trial, and is not a witness. He is being asked simple, direct questions by the judge, for the purpose of seeing if there is anything that would disqualify him. The juror obviously knows this, and it is his responsibilty and duty to state any and all disqualifying information.
These things take long enough as it is. There is no reason to drag it out any further by treating every potential juror as some kind of hostile witness who needs to be thoroughy interrogated.
Re:I think for lying during selection (Score:2, Informative)
And?
I hope that's not all you've set your hopes on.
He answered yes, and gave AN example.
Re:He didn't disclose what he wasn't asked (Score:5, Informative)
It was a yes or no question. He answered yes.
No, he did not answer "yes." This is from the transcript of the voir dire:
See what he did there? Instead of saying "yes," he answered as if that were the only case. By omitting the other two cases he was involved in, he effectively misrepresented that this was the only case. I'm sorry, but it is extremely foreseeable that being sued by Seagate is a material fact that should have been disclosed. He also lied later in this exchange:
He said months ago that his own experiences relating to patents helped him decide how he should rule, and then he proceeded to "help" other jurors understand based on that information--NOT the judge's instruction. And his statements since have indicated that he was going out of his way to be on this jury so that he could be a part of this big case.
It all looks pretty straight-forward to me. The guy borrowed $25,000 from Seagate in 1991, didn't pay it back, got sued, declared bankruptcy to dodge his financial obligation, and apparently still is buttsore about it. In 2012, he had an ax to grind against Seagate, he hid relevant information to get on the jury so that he could grind it, and then he proceeded to trash Samsung--the currently majority owners of Seagate--to get back at them. And now he's going out to the press and lying about the questions and instructions to not look like the tool he is.
I hope they nail his ass to the wall for juror misconduct and that Samsung gets an actual fair and impartial trial out of it.
Re:The Real Reason Samsung Lost. (Score:4, Informative)
Incorrect. Apple was guilty of the same behavior, and upon appeal, the judge issued instruction that either both parties receive Adverse Inference Instructions, or neither. Both parties opted for no instructions. Here's the source. [groklaw.net]
Re:He didn't disclose what he wasn't asked (Score:5, Informative)
However to be clear, it was not Samsung or Apple who were asking questions it was the judge. When Mr. Hogan answered questions about his 2008 law suit, but failed to disclose his other law suits, Judge Koh should have asked if there were any other cases, but failed to do so. The judge's failure to probe deeper and Mr. Hogan's failure to fully disclose his past should not be held against Samsung. Samsung doesn't have to prove perjury (which would be difficult as Mr. Hogan's answers were factual, but incomplete), only jury misconduct. My understanding (IANAL) is that the standard for jury misconduct is much lower - innocently answering questions wrongly can result in misconduct. However even if misconduct is shown, Samsung has to prove that the misconduct resulted in a bias. Bias is harder to prove however Mr. Hogan's post-trial statements seem to indicate such bias. He said the trial was the "highlight of my career - my life even" and that he wanted to "send a message to the industry at large that patent infringing is not the right thing to do". Sounds a lot like bias to me.
Samsung has a much stronger case for bias and misconduct involving Mr. Hogan on the claim that he ignored the Judge's instructions to the jury, relied on his own understanding of patent laws, and used his position as jury foreman to convince the jury to rule in favour of Apple. Jurors are not expected to be a clean slate, with NO outside knowledge or experience, however they ARE expected to weigh the evidence presented in the case and the legal issues as explained by the judge. If they have external expertise, they are NOT to use this to persuade or convince other jurors. In post-trial interviews, Mr. Hogan said that he explained to the rest of the jury the standards (his own) for infringement of design patents, functional patents and prior art. This is really the smoking gun. Jurors are supposed to deliberate on the evidence and the points of law as explained in the jury instructions. They are not supposed to conduct their own research (either on evidence or law), experiments, re-enactments, visit the scene of the crime, seek outside evidence, etc. and if they have outside information they MAY NOT share it with other jurors.
Re:Why seal? (Score:4, Informative)
Being in a jury selection process myself recently, the lawyers barely talk about the parties at all. In fact, they are as round-about and obtuse as possible, to the point of asking nearly idiotic questions like "do you have any preconceived notions about patents?". So unless he was following Seagate's progress on a daily basis for 15+ years, he was without a doubt NOT informed during the process of selection that Samsung had a share in Seagate. He probably didn't know that Seagate owns Maxtor. Or that Apple owns a stake in Akamai. Such things are not really common knowledge except maybe here at slashdot. ;)
Very few lawyers go to the trouble of posting a list of every company and sub-company that a corporation of that size owns and all of the stock options that it also holds (it's unlikely that such information would be easily available, as well), and then asking jurors to announce if they ever had dealings with any of these dozens of companies. They hardly even mention the company's name if they can help it.
In every instance that I have seen, they ask the potential jurors if they are able to be impartial. If the defendant says yes, and they don't do any followup, it's the lawyer's decision. Even then, even if there IS a bias, the lawyers have the option to excuse the person. Though they also always ask "Will this bias keep you from making an impartial decision in this specific case?" before deciding to finally get rid of you or not. Sometimes they do not as they have bigger idiots and problems to get rid of (like a juror that is too smart or opinionated or conservative or...) and then run out of options. Sometimes they simply don't ask any more questions and move on.
If the lawyers say the jury that they have selected is acceptable, it's not the jury's fault any more.
Re:He didn't disclose what he wasn't asked (Score:5, Informative)
Re:He didn't disclose what he wasn't asked (Score:5, Informative)
Trolly troll troll. He ignored prior art because of a notion he invented himself that prior art has to be "interchangeable". He influenced the jury to disregard prior art against Apple's patents because the prior art didn't run on iOS. That he was biased against Samsung is pretty obvious from the fact that he didn't also apply this (completely wrong) notion of "interchangeability" to Samsung's supposedly infringing software. If it has to run on iOS to be prior art, why doesn't it have to run on iOS to be infringing?
Re:Peers (Score:5, Informative)
Re:This is also why "stupid juries" can be prefera (Score:0, Informative)
Jury nullification.
The jury is the judge of guilt.
That involves two parts. Judging the facts, and judging the law.
Please take your revisionist interpretation elsewhere.