Samsung is fighting hard, in what I'd describe as a D-Day, Normandy invasion, take-the-beach-at-all-costs style, fighting to the max over every inch. Perhaps that's because the new lawyer added to the Samsung team from Quinn Emanuel, John Pierce, tasked with overseeing all the post-verdict motions, is an ex-Army officer. It definitely has that military feel.

I have a lot of documents to show you since our last look at developments, and the most important is a motion to compel [PDF] Apple to reveal when it first learned that the jury foreman "failed to disclose truthfully during voir dire that he had sued and been sued by his former employer, Seagate, despite the Court’s express question asking him whether he had ever been a party to any litigation".

It appears to my eyes that Samsung believes that it is at least possible that Apple may have known earlier than Samsung did and failed to speak up, because on what other basis would Apple claim that Samsung coulda/shoulda known? That's Apple's argument, that somehow Samsung failed in a duty to investigate earlier and hence waived its rights to complain. I mean, did Apple know? Or is it just an argument with nothing to support it? Either way, Samsung ought to prevail on this motion, and maybe on its request for a new trial, arguing that "The trial was tainted by the presence of a juror who was not truthful on an issue that goes directly to bias."

If Apple knew and failed to say anything, it's sanctionable, Samsung argues. And if Apple argues that Samsung had a duty to investigate the voir dire responses, did Apple believe it had the same duty? There's no such duty, Samsung says, but if Apple sincerely argues there is, did it investigate and find out during the trial and stay silent for a tactical benefit? If not, in what way has Samsung waived anything by not doing what Apple didn't do either? "By challenging the reasonableness of Samsung’s investigation, Apple has put the extent of its own knowledge and investigation at issue," Samsung writes.

Jump To Comments

[Motion as Text;
Filings]

Samsung, in its motion, argues it is entitled to know what Apple knew and when, in order to properly respond to Apple's arguments:

Samsung will respond in due course in its reply to this remarkable and untenable suggestion that it should have extra-judicially investigated a sitting juror’s bankruptcy despite its lack of relevance to any question asked on voir dire. But in order to have a full and fair opportunity to reply to Apple’s “waiver” argument, Samsung is entitled to know when Apple first learned of Mr. Hogan’s undisclosed Seagate litigation, including whether it knew of Mr. Hogan’s misstatements to the Court prior to Samsung’s post-trial motion and nonetheless concealed that knowledge from the Court. Apple’s answer to that question is relevant both to whether Apple complied with its obligation to disclose known misrepresentations to the Court and whether a reasonable litigant in this case should have discovered Mr. Hogan’s untruthfulness sooner than Samsung did. Apple has refused to disclose this information despite Samsung’s request. Samsung therefore respectfully requests that the Court compel Apple to disclose when it first learned of Mr. Hogan’s undisclosed Seagate litigation....

If Apple knew that Mr. Hogan’s statements were untruthful all along and stood silent in order to gain a tactical advantage from the seating of a biased juror, Apple’s misconduct would itself warrant sanction and relief and certainly must be disclosed. If, on the other hand, Apple, like Samsung, did not know that Mr. Hogan had been untruthful until after the verdict, that is relevant evidence that Samsung’s reliance on the presumptive veracity of Mr. Hogan’s voir dire responses during trial was reasonable. Apple cannot fault Samsung for not discovering juror untruthfulness while refusing to disclose whether and when Apple itself discovered this untruthfulness.

Apple had asked Samsung that same question, and Samsung provided the information, that it was only after he began talking to the media, revealing details that he had not mentioned in voir dire. But Apple -- who argues that there is no new trial needed because Samsung ought to have known earlier and hence somehow waived its right to complain -- simply refused [PDF] to answer Samsung's parallel question. I'll show you Samsung's motion to compel as text, because it's an important filing. Or, more accurately, it could prove to be important, if the motion is granted.

Court Docket - Here are all the recent filings in the District Court:

2083 - Filed & Entered: 10/23/2012
STIPULATION WITH PROPOSED ORDER re 2082 MOTION to Compel Depositions of Samsung's Declarants filed by Apple Inc.. (Attachments: # 1 Declaration Declaration of Eric Olson in Support of the Stipulation regarding the Schedule for Briefing Apple's Motion to Compel Depositions of Samsung's Declarants)(Jacobs, Michael) (Filed on 10/23/2012) Modified text on 10/24/2012 (dhmS, COURT STAFF). (Entered: 10/23/2012)

2084 - Filed & Entered: 10/24/2012
RESPONSE to 2052 Apple's Improper Objections to Evidence in Samsung's Reply in Support of Non-Jury Claims, Including Indefiniteness filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Related document(s) 2052 ) (Maroulis, Victoria) (Filed on 10/24/2012) Modified text on 10/25/2012 (dhmS, COURT STAFF). (Entered: 10/24/2012)

2085 - Filed & Entered: 10/24/2012
ORDER REGARDING SCHEDULE FOR BRIEFING APPLE'S MOTION TO COMPEL DEPOSITIONS by Judge Paul S. Grewal granting 2083 Stipulation (psglc2, COURT STAFF) (Filed on 10/24/2012) (Entered: 10/24/2012)

2086 - Filed & Entered: 10/24/2012
EMERGENCY MOTION BY NONPARTY MOTOROLA MOBILITY LLC TO STAY ENFORCEMENT OF MAGISTRATE'S OCTOBER 23, 2012 ORDER SETTING DEADLINE re 2040 filed by Motorola Mobility LLC. (Attachments: # 1 Declaration of Jennifer A. Golinveaux, # 2 Proposed Order, # 3 Certificate/Proof of Service)(Golinveaux, Jennifer) (Filed on 10/24/2012) Modified text on 10/25/2012 (dhmS, COURT STAFF). (Entered: 10/24/2012)

2087 - Filed & Entered: 10/25/2012
ORDER by Judge Lucy H. Koh granting in part and denying in part 2081 Motion for Reconsideration ; granting 2086 Ex Parte Application (lhklc2, COURT STAFF) (Filed on 10/25/2012) (Entered: 10/25/2012)

2088 - Filed & Entered: 10/25/2012
OPPOSITION to ( 2070 MOTION for Order Permitting Cross-Use of Discovery Materials From Case No. 12-630 ) filed by Apple Inc.. (Jacobs, Michael) (Filed on 10/25/2012) Modified text on 10/26/2012 (dhmS, COURT STAFF). (Entered: 10/25/2012)

2089 - Filed & Entered: 10/26/2012
Renewed Administrative Motion to File Documents Under Seal re Exhibits to the Musika Declaration in Support of Apple's Motion for Permanent Injunction filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # 1 Declaration of Hankil Kang)(Maroulis, Victoria) (Filed on 10/26/2012) Modified text on 10/29/2012 (dhmS, COURT STAFF). (Entered: 10/26/2012)

2090 - Filed & Entered: 10/26/2012
OPPOSITION to ( 2082 MOTION to Compel Depositions of Samsung's Declarants ) filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # 1 Proposed Order, # 2 Declaration of John Pierce, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3)(Maroulis, Victoria) (Filed on 10/26/2012) Modified text on 10/29/2012 (dhmS, COURT STAFF). (Entered: 10/26/2012)

2091 - Filed & Entered: 10/26/2012
Excerpted Replacement Exhibits 9, 10, 11, 12, 28, 29, 30, 31, 32, 34, 38, 47, 71, 72, 83, 85, 189, 191, 195, 206, 207, and 208 re 2065 Declaration in Support, filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Related document(s) 2065 ) (Estrich, Susan) (Filed on 10/26/2012) Modified text on 10/29/2012 (dhmS, COURT STAFF). (Entered: 10/26/2012)

2092 - Filed & Entered: 10/26/2012
ADMINISTRATIVE MOTION to Enlarge Page Limit for Reply In Support of Motion for Permanent Injunction and for Enhanced Damages filed by Apple Inc.. (Attachments: # 1 Declaration Richard Hung Declaration, # 2 Proposed Order)(Jacobs, Michael) (Filed on 10/26/2012) Modified text on 10/29/2012 (dhmS, COURT STAFF). (Entered: 10/26/2012)

2093 - Filed & Entered: 10/26/2012
ORDER by Judge Lucy H. Koh granting 2070 Motion Allowing cross-use of discovery (lhklc2, COURT STAFF) (Filed on 10/26/2012) (Entered: 10/26/2012)

2094 - Filed & Entered: 10/26/2012
Apples Memorandum Of Points And Authorities In Support Of 2064 Samsungs Administrative Motion To File Documents Under Seal filed by Apple Inc.. (Attachments: # 1 Proposed Order)(Bartlett, Jason) (Filed on 10/26/2012) Modified on 10/29/2012 linking entry to document #2064 (dhmS, COURT STAFF). (Entered: 10/26/2012)

2095 - Filed & Entered: 10/26/2012
Declaration Of Cyndi Wheeler In Support Of 2064 Samsungs Administrative Motion To File Documents Under Seal filed by Apple Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Bartlett, Jason) (Filed on 10/26/2012) Modified on 10/29/2012 linking entry to document #2064 (dhmS, COURT STAFF). (Entered: 10/26/2012)

2096 - Filed & Entered: 10/26/2012
Declaration Of Nathan Sabri In Support Of 2064 Samsungs Administrative Motion To File Documents Under Seal filed by Apple Inc.. (Attachments: # 1 Exhibit A)(Bartlett, Jason) (Filed on 10/26/2012) Modified on 10/29/2012 counsel failed to link entry to document #2064 (dhmS, COURT STAFF). (Entered: 10/26/2012)

2097 - Filed & Entered: 10/26/2012
Excerpted Replacement Exhibit 37 re 2065 Declaration filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Related document(s) 2065 ) (Estrich, Susan) (Filed on 10/26/2012) Modified text on 10/29/2012 (dhmS, COURT STAFF). (Entered: 10/26/2012)

2098 - Filed & Entered: 10/26/2012
OPPOSITION to ( 2092 MOTION to Enlarge Page Limit for Reply In Support of Motion for Permanent Injunction and for Enhanced Damages ) filed by Samsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Maroulis, Victoria) (Filed on 10/26/2012) Modified text on 10/29/2012 (dhmS, COURT STAFF). (Entered: 10/26/2012)

2099 - Filed & Entered: 10/28/2012
ADMINISTRATIVE MOTION for Leave to File Reply in Support of Motion to Enlarge Page Limit for Permanent Injunction and Enhanced Damages Reply filed by Apple Inc.. (Attachments: # 1 Exhibit A Exhibit A Apples Reply in Support of Administrative Motion to Enlarge Page Limit for Reply in Support of Motion for Permanent Injunction and for Enhanced Damages, # 2 Declaration Declaration of Richard S.J. Hung iso Apples Administrative Motion for Leave to File Reply in Support of Motion to Enlarge Page limit for Permanent Injunction and Enhanced Damages Reply, # 3 Proposed Order Proposed Order)(Jacobs, Michael) (Filed on 10/28/2012) Modified text on 10/29/2012 (dhmS, COURT STAFF). (Entered: 10/28/2012)

2100 - Filed & Entered: 10/28/2012
ADMINISTRATIVE MOTION for Leave to File Apples brief in Response to Samsungs Request for Additional Depositions filed by Apple Inc.. (Attachments: # 1 Exhibit Exhibit A Apples Brief in Response to Samsungs Request for Additional, # 2 Declaration Declaration of Richard S.J. Hung in Support of Apples Administrative Motion for Leave to File Apples brief in Response to Samsungs Request for Additional Depositions)(Jacobs, Michael) (Filed on 10/28/2012) Modified on 10/29/2012 (dhmS, COURT STAFF). (Entered: 10/28/2012)

2101 - Filed & Entered: 10/29/2012
RESPONSE (re 2099 MOTION for Leave to File Apples Administrative Motion for Leave to File Reply in Support of Motion to Enlarge Page Limit for Permanent Injunction and Enhanced Damages Reply ) filed bySamsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Maroulis, Victoria) (Filed on 10/29/2012) (Entered: 10/29/2012)

2102 - Filed & Entered: 10/29/2012
RESPONSE (re 2100 MOTION for Leave to File Apples Administrative Motion for Leave to File Apples brief in Response to Samsungs Request for Additional Depositions ) SAMSUNGS OPPOSITION TO APPLES ADMINISTRATIVE MOTION FOR LEAVE TO FILE APPLES BRIEF IN RESPONSE TO SAMSUNGS REQUEST FOR ADDITIONAL DEPOSITIONS filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Maroulis, Victoria) (Filed on 10/29/2012) (Entered: 10/29/2012)

2103 - Filed & Entered: 10/29/2012
RESPONSE (re 2100 MOTION for Leave to File Apples Administrative Motion for Leave to File Apples brief in Response to Samsungs Request for Additional Depositions ) Samsung's CORRECTED Opposition To Apple's Administrative Motion For Leave To File Apple's Brief in Response To Samsung's Request For Additional Depositions filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Maroulis, Victoria) (Filed on 10/29/2012) (Entered: 10/29/2012)

2104 - Filed & Entered: 10/29/2012
ORDER by Judge Lucy H. Koh denying 2092 Motion for Leave to File Excess Pages; denying 2099 Motion for Leave to File (lhklc2, COURT STAFF) (Filed on 10/29/2012) (Entered: 10/29/2012)

2105 - Filed & Entered: 10/29/2012
ORDER GRANTING MOTION TO COMPEL by Judge Paul S. Grewal granting 2082 Motion to Compel; granting 2100 Motion for Leave to File (psglc2, COURT STAFF) (Filed on 10/29/2012) (Entered: 10/29/2012)

2106 - Filed & Entered: 10/30/2012, Terminated: 11/01/2012
MOTION to clarify order compelling expert depositions re [2105] Order on Motion to Compel, Order on Motion for Leave to File filed by Apple Inc.. Responses due by 11/13/2012. Replies due by 11/20/2012. (Attachments: # (1) Proposed Order [Proposed] Order Granting Apple's Motion to Clarify Order Compelling Expert Depositions)(Jacobs, Michael) (Filed on 10/30/2012)

2107 - Filed & Entered: 10/30/2012
STIPULATION WITH PROPOSED ORDER re [2106] MOTION to clarify order compelling expert depositions re [2105] Order on Motion to Compel, Order on Motion for Leave to File Regarding Schedule For Briefing filed by Apple Inc.. (Jacobs, Michael) (Filed on 10/30/2012)

2108 - Filed & Entered: 10/30/2012
MOTION to Compel Apple to Disclose the Circumstances and Timing of Its Discovery of Juror Information, filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. Motion Hearing set for 12/6/2012 01:30 PM in Courtroom 4, 5th Floor, San Jose before Hon. Lucy H. Koh. Responses due by 11/13/2012. Replies due by 11/20/2012. (Attachments: # (1) Declaration Maroulis Decl in support of Samsung's Motion to Compel, # (2) Exhibit Ex A to Maroulis Decl in support of Samsung's Motion to Compel, # (3) Exhibit Ex B to Maroulis Decl in support of Samsung's Motion to Compel)(Maroulis, Victoria) (Filed on 10/30/2012) Modified text on 10/31/2012 (dhmS, COURT STAFF).

2109 - Filed & Entered: 10/30/2012 Terminated: 11/01/2012
STIPULATION WITH PROPOSED ORDER re [2108] MOTION to Compel Apple to Disclose the Circumstances and Timing of Its Discovery of Juror Information re Briefing Schedule filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Declaration Maroulis Decl in support of Stipulation re Schedule for Briefing Samsung's Motion to Compel, # (2) Exhibit A to Maroulis Declaration in support of Stipulation re Schedule for Briefing Samsung's Motion to Compel)(Maroulis, Victoria) (Filed on 10/30/2012)

2110 - Filed & Entered: 10/30/2012
Proposed Order re [2108] MOTION to Compel Apple to Disclose the Circumstances and Timing of Its Discovery of Juror Information by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Maroulis, Victoria) (Filed on 10/30/2012)

2111 - Filed & Entered: 10/30/2012
NOTICE of Appearance by Scott Liscom Watson (Watson, Scott) (Filed on 10/30/2012)

2112 - Filed & Entered: 10/31/2012
OPPOSITION to ( [2106] MOTION to clarify order compelling expert depositions re [2105] Order ) filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Maroulis, Victoria) (Filed on 10/31/2012) Modified text on 11/1/2012 (dhmS, COURT STAFF).

2113 - Filed & Entered: 10/31/2012
Corrected Administrative Motion to File Under Seal re Samsung's Oppositions to Apple's Motion for Judgment as a Matter of Law, New Trial, and Amended Judgment, and Motion for Permanent Injunction and Damages Enhancement, filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Declaration of Prashanth Chennakesavan)(Maroulis, Victoria) (Filed on 10/31/2012) Modified text on 11/1/2012 (dhmS, COURT STAFF).

2114 - Filed & Entered: 10/31/2012 Terminated: 10/31/2012
MOTION for leave to appear in Pro Hac Vice FOR CAREY R RAMOS ( Filing fee $ 305, receipt number 0971-7240557.) filed by Samsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Declaration, # (2) Exhibit A)(Ramos, Carey) (Filed on 10/31/2012)

2115 - Filed & Entered: 10/31/2012
ORDER by Judge Lucy H. Koh granting [2114] Motion for Pro Hac Vice (lhklc2, COURT STAFF) (Filed on 10/31/2012)

2116 - Filed & Entered: 11/01/2012
ORDER RE APPLE'S MOTION TO CLARIFY by Judge Paul S. Grewal entered [2106] Motion Clarification of Order (psglc2, COURT STAFF) (Filed on 11/1/2012)

2117 - Filed & Entered: 11/01/2012
Administrative Motion to File Under Seal RENEWED MOTION BY NONPARTY MOTOROLA MOBILITY LLC TO SEAL PORTIONS OF EXHIBIT 23 filed by Motorola Mobility LLC. (Attachments: # (1) Declaration of Jennifer Golinveaux, # (2) Proposed Order, # (3) Certificate/Proof of Service)(Golinveaux, Jennifer) (Filed on 11/1/2012)

10/02/2012 - 36 - Letter from Appellants Samsung Electronics America, Inc., Samsung Electronics Co., Ltd. and Samsung Telecommunications America, LLC Re: District Court Ruling Following Limited Remand. Service: 10/02/2012 by email. [27924]

10/03/2012 - 37 - MOTION of Appellants Samsung Electronics America, Inc., Samsung Electronics Co., Ltd. and Samsung Telecommunications America, LLC to terminate appeal through voluntary dismissal with prejudice.. [Consent: unopposed]. Service: 10/03/2012 by email. [28182]

10/15/2012 - 38 - ORDER granting motion to voluntarily dismiss its appeal [37] filed by Appellants Samsung Electronics America, Inc., Samsung Electronics Co., Ltd. and Samsung Telecommunications America, LLC. Each side shall bear its own costs. ISSUED AS A MANDATE: October 15, 2012. Service: 10/15/2012 by clerk. [29758]

10/18/2012 - 2077 - ORDER of USCA as to 1138 Notice of Appeal to the Federal Circuit, filed by Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC, Samsung Electronics America, Inc., Federal Circuit #2012-1506: Samsung Electronics Co., Ltd. et al move without opposition to voluntarily dismiss its appeal with prejudice. Upon consideration thereof, It is Ordered that the motion is GRANTED. Each Side Shall bear its Own Costs. (dhmS, COURT STAFF) (Filed on 10/18/2012) (Entered: 10/22/2012)

Apple is asking that 26 Samsung products be blocked from sale in the US. Yes. 26, speaking of IP maximalism. It seems to have taken the magistrate judge's breath away, and so he is allowing a little more leeway for Samsung to respond, and he granted [PDF] Samsung's request, over Apple's opposition, to depose some of Apple's declarants, like Phil Schiller. He also granted Apple's request to depose four of Samsung's experts. Judge Lucy Koh, the presiding judge, has also granted [PDF] Samsung's request, over Apple's opposition, to use discovery from the other Apple v. Samsung litigation she is also overseeing, Case No. 12-CV-00630. Samsung had said [PDF] that Apple introduced not only new material but conflicting declarations, such as Schiller saying one thing at trial and another now in his declaration:

Similarly, Mr. Schiller now offers opinions that are new or in conflict with his testimony at trial. Compare Dkt. 1985, ¶¶ 4, 6-7, 14, 15 (opining on Galaxy line of smartphones, competition with iPhone, and confusion) with R.T. 656:21-657:3; 657:13-659:1; 694:25-696:5; and 696:14-699:19 (conflicting trial testimony on same topics).

I hate to watch it, and the paralegal side loves watching it at the same time, in that I've never seen anything quite like this, and it's professionally fascinating. But I wish Apple would see reason, and pull back on the extremism. I've always liked Apple, and I can't admire this, and it makes me sad to know that Apple's brand is being ruined. The US got drunk on the idea of IP maximalism, thinking it would solve some economic problems. They think that, though, because Hollywood told them so, and how does the world view Hollywood's IP legal work? If you want people to buy what you are selling, they have to like you enough to want to buy from you. And now it's Apple imitating Hollywood's extremism. Does it make you want to reward the company with your hard-earned money? Are their products as "cool" in your eyes, now that you are watching its legal behavior toward Samsung, a partner of Apple's? 26 devices Apple wants to block. 26. I mean. It's trying to put Samsung out of business in the US. For what? Rounded corners on a tablet? Are they listening to the wrong lawyers?

Here's Samsung's motion to compel, as text, and notice that it asks that Apple be ordered to provide the information "under penalty of perjury". I'm not used to lawyers asking for that regarding other lawyers. They are all officers of the court, and truth is assumed under normal circumstances. While you and I must offer written evidenciary materials, like affidavits, under penalty of perjury, lawyers usually just "affirm". Samsung, I gather, assumes nothing any more about Apple, and they wouldn't ask for this unless they had a plan in the event that truthful information is ordered but is not forthcoming:

Samsung's Motion as Text:

**********************

SAMSUNG’S NOTICE OF MOTION AND
MOTION TO COMPEL APPLE TO
DISCLOSE THE CIRCUMSTANCES AND
TIMING OF ITS DISCOVERY OF JUROR
INFORMATION

NOTICE OF MOTION

PLEASE TAKE NOTICE that Defendants Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., and Samsung Telecommunications America, LLC (collectively “Samsung”) shall and hereby do move the Court for an Order compelling Apple Inc. (“Apple”) to provide a full and complete disclosure, under penalty of perjury, of when and how Apple first learned that the jury foreman, Velvin Hogan, had been a party to lawsuits involving Seagate that he failed to disclose to the Court in response to the Court’s direct questioning at voir dire and of the nature and timing of these lawsuits. This information is relevant to Apple’s argument, made in Apple’s opposition to Samsung’s Motion for New Trial, that Samsung waived its challenges based on Mr. Hogan’s misrepresentations because Samsung purportedly “could have” and “should have” discovered them earlier.

This motion is based on this notice of motion and supporting memorandum, and such other written or oral argument as may be presented at or before the time this motion is taken under submission by the Court.

RELIEF REQUESTED

1

QUINN EMANUEL URQUHART & SULLIVAN, LLP

By /s/ Susan R. Estrich
Charles K. Verhoeven
Kevin P.B. Johnson
Victoria F. Maroulis
Michael T. Zeller
Attorneys for SAMSUNG ELECTRONICS CO.,
LTD., SAMSUNG ELECTRONICS AMERICA,
INC. and SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC

2

Preliminary Statement

Unable to contradict those facts, Apple has conceded that Samsung did not have actual knowledge of Mr. Hogan’s misrepresentations during voir dire until after the verdict and thus is foreclosed from arguing that Samsung waived its juror conduct argument for not having raised it sooner on that basis. Apple nonetheless argues in its opposition to Samsung’s new trial motion that Samsung waived its juror conduct argument anyway because it “could have” and “should have” discovered Mr. Hogan’s undisclosed Seagate litigation sooner. Dkt. 2050 at 1-2 (emphasis added). Specifically, Apple suggests that Samsung should have obtained a copy of Mr. Hogan’s 1993 bankruptcy file during voir dire, and that had it done so, it might have discovered the Seagate litigation that Mr. Hogan failed truthfully to disclose. Id.

Samsung will respond in due course in its reply to this remarkable and untenable suggestion that it should have extra-judicially investigated a sitting juror’s bankruptcy despite its lack of relevance to any question asked on voir dire. But in order to have a full and fair opportunity to reply to Apple’s “waiver” argument, Samsung is entitled to know when Apple first learned of Mr. Hogan’s undisclosed Seagate litigation, including whether it knew of Mr. Hogan’s misstatements to the Court prior to Samsung’s post-trial motion and nonetheless concealed that knowledge from the Court. Apple’s answer to that question is relevant both to whether Apple complied with its obligation to disclose known misrepresentations to the Court and whether a reasonable litigant in this case should have discovered Mr. Hogan’s untruthfulness sooner than

1

Factual Background

After Samsung filed its motion making these points, Apple questioned whether “Samsung has preserved arguments concerning juror misconduct.” Dkt. 2022, Ex. A. Specifically, on September 24, 2012, Apple demanded that Samsung provide “a sworn declaration” to disclose “how and when it learned of the facts underlying its allegations that the judicial process was tainted.” Id. Samsung agreed to do so, and on October 1, 2012, served a declaration of counsel affirming that Samsung “had no knowledge of Velvin Hogan’s litigation against Seagate until after the jury verdict was rendered in this case.” Dkt. 2022, Ex. B at 1. Samsung explained that, “after the verdict and after the publication of press accounts raising questions about Mr. Hogan’s impartiality, Samsung requested and subsequently received on September 10, 2012 a copy of the bankruptcy court file from In re Velvin R. Hogan and Carol K. Hogan, Case No. 93-58291-MM 22 (Bankr. N.D. Cal. Dec. 27, 1993),” which “file included papers showing that Seagate Technology, Inc. had filed litigation against Mr. Hogan.” Id.

This did not satisfy Apple. Instead, in follow-up communications, Apple requested that Samsung disclose additional information, including “[w]hen and how Samsung obtained any and all information about Mr. Hogan’s bankruptcy, including the date and results of any database searches for information about Mr. Hogan conducted by Samsung, Quinn, or anyone else working for Samsung or Quinn.” Dkt. 2022, Ex. C. Again, Apple claimed that “information regarding

2

As Samsung’s supplemental declaration shows, Samsung and its counsel did not learn of any facts showing that Mr. Hogan made misrepresentations in voir dire in his answers about lawsuits he was a party to until after the verdict in this case was rendered. After the verdict, Mr. Hogan made public statements which led the media to question his impartiality, including through suggestions that Mr. Hogan had financial ties to Apple by virtue of his patents. Id. at ¶ 4 and Ex. E. Because bankruptcy filings may contain financial information about a debtor, Samsung ordered a copy of Mr. Hogan’s bankruptcy file after these media reports were published and thereby discovered, for the first time, that Mr. Hogan had been sued by Seagate. Id. at ¶ 4. Samsung knew pre-verdict “that Mr. Hogan had declared bankruptcy in 1993 through a search performed on the LexisNexis database,” but that “LexisNexis report does not mention Mr. Hogan’s litigation with Seagate.” Id. at ¶ 9. And “[b]ecause Mr. Hogan’s 1993 bankruptcy did not involve litigation and was not responsive to any voir dire questioning, Samsung and its counsel did not investigate Mr. Hogan’s 1993 bankruptcy any further until after the verdict.” Id.¹

The factual information Samsung has provided establishes that Samsung lacked knowledge until after the verdict had issued of Mr. Hogan’s misrepresentations during voir dire. Apple has not challenged the veracity or completeness of this information. Nor could it credibly do so. Apple now argues instead, for the first time, that Samsung should have discovered Mr. Hogan’s untruthfulness earlier because it had a duty to investigate Mr. Hogan during voir dire, including by “order[ing] the bankruptcy file.” Dkt. 2050 at 2. For its part, however, Apple has refused to

3

Argument

What Apple knew about Mr. Hogan’s undisclosed Seagate litigation, and when it first knew it, is relevant to the juror conduct issue before the Court for two independent reasons. If Apple knew that Mr. Hogan’s statements were untruthful all along and stood silent in order to gain a tactical advantage from the seating of a biased juror, Apple’s misconduct would itself warrant sanction and relief and certainly must be disclosed. If, on the other hand, Apple, like Samsung, did not know that Mr. Hogan had been untruthful until after the verdict, that is relevant evidence that Samsung’s reliance on the presumptive veracity of Mr. Hogan’s voir dire responses during trial was reasonable. Apple cannot fault Samsung for not discovering juror untruthfulness while refusing to disclose whether and when Apple itself discovered this untruthfulness.

4

Second, in the more likely case that Apple, like Samsung, did not know that Mr. Hogan was untruthful, that too is highly material for it shows that Samsung reasonably did not discover the untruthfulness until the trial was over. See, e.g., Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011) (to assess due diligence in context of equitable tolling, “we determine if (and when) a reasonable person in petitioner’s position would suspect the specific fraud or error”). Apple is wrong that litigants cannot rely on the veracity of juror statements and instead have a duty to extra-judicially investigate sitting jurors to test their voir dire responses. But if Apple is right that the relevant question is whether Samsung “should have” discovered Mr. Hogan’s untruthfulness by investigating him mid-trial, then Apple’s own failure to make such a discovery by conducting such an investigation would show that Samsung cannot be charged with failing to discover facts that neither party knew. Each side in this case is resourceful and sophisticated; if neither discovered Mr. Hogan’s untruthfulness, no reasonable party would have.

5

CONCLUSION

DATED: October 30, 2012

Respectfully submitted,

QUINN EMANUEL URQUHART &
SULLIVAN, LLP

By /s/ Susan R. Estrich

_______________
¹ Mr. Hogan continued to speak with the press after Samsung filed its new trial motion. In one interview, Mr. Hogan explained that in fact “he sued Seagate for fraud, Seagate countersued.” Id. at ¶ 7 and Ex. F. This fraud claim is not mentioned in the bankruptcy file that Samsung obtained post-verdict, and the court’s records of Mr. Hogan’s lawsuit(s) with Seagate no longer exist. Id. To this day, this statement by Mr. Hogan to the press is the only information Samsung has been able to obtain about Mr. Hogan’s fraud claims against Seagate.

² The Court’s voir dire questioning expressly required Mr. Hogan to disclose all of his prior lawsuits, without any time limitation. RT 148:18-21 (“Have you . . . ever been involved in a lawsuit, either as a plaintiff, a defendant, or as a witness.”) (emphasis added). Mr. Hogan nonetheless told the media, in one account, that he did not disclose the 1993 Seagate lawsuit because “the court instructions for potential jurors required disclosure of any litigation they were involved in within the last 10 years” and that “[h]ad I been asked an open-ended question with no time constraint, of course I would’ve disclosed that” (id. at 3 and Ex. G). In another interview, Mr. Hogan gave a different, conflicting excuse and claimed “that he didn’t mention the 1993 Seagate case” because “he wasn’t asked specifically to disclose every case he’d ever been involved in”. (Dkt. 2022 at 2-3 and Ex. F). Neither of Mr. Hogan's inconsistent explanations is correct. The Court’s question did ask him to disclose every case he had ever been involved in, with no 10-year limitation on this question anywhere in the record. Indeed, confirming the clarity of the Court's questioning, other prospective jurors disclosed lawsuits as far back as 1986, RT 155:22-23, and Mr. Hogan discussed his own prior jury service going as far back as 1973. RT 195:14-23 (“one was in ’73; one was in the mid ‘80s, ’87, I think it was; and the other one that was more recent was 1990”).

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