Samsung has taken its beef with Apple back to court.  Just over a week ago, it filed a motion with U.S. District Judge Lucy Koh asking her to throw out the recent $1 billion Apple v. Samsung verdict.

While key portions of the motion were redacted, the index of authorities cited in those portions was not.  From these authorities, the media was easily able to conclude that one of Samsung’s arguments involved juror misconduct.  Furthermore, an analysis of the exhibits filed in support suggested that Samsung’s attack would focus on Velvin Hogan, the jury foreman.  One of these exhibits includes a portion of the jury selection process where Judge Koh required Hogan to confirm that he would “apply the law as [she instructed] and not based on [his] understanding of the law based on [his] own cases.”

Despite Hogan’s promise to Judge Koh, his post-trial comments to the media (especially this interview with Bloomberg) suggest he may not have remained true to his word.  Hogan told Bloomberg about other jurors who were confused by some of the issues and how he helped them understand.  Samsung’s concern is that his explanations drew on his prior knowledge and experience (he is an electrical engineer who owns a patent) rather than on information that was presented at trial.  If Hogan’s conduct during jury deliberation went as far as to describe the issues differently than the parties or the judge, it could be grounds for overturning the verdict.  One of the authorities Samsung cites is Rule 606(b) of the Federal Rules of Evidence, suggesting that it is trying to convince Judge Koh to call the jurors back to testify about whether  ”extraneous prejudicial information was improperly brought to the jury’s attention.”

Apple struck back early last week, filing a response and calling Samsung’s jury misconduct motion “frivolous on its face.”  Apple’s argument seems to deal primarily with timing, suggesting that Samsung “impermissibly delayed raising [the jury misconduct] issue” and thereby waived it.  Apple’s support is based on an 8th Circuit case where the party waived jury misconduct arguments because the allegation could have been based on information disclosed during jury selection.  Apple’s concern seems to be that a party aware of possible jury misconduct should not be able to wait to see if the verdict is in their favor before deciding to raise the issue.

Given Hogan’s assurance to Judge Koh during the selection process that he would refrain from using his own understand of the law, as well as the statements he made after the trial ended, it seems unlikely that Apple’s timing argument will be enough to prevent further examination of the issue.

Michael Joshi

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