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MOTION TO DISQUALIFY

THE RULE 706 EXPERT

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ORRICK, HERRINGTON & SUTCLIFFE LLPKAREN G. JOHNSON-MCKEWAN (SBN 121570)[email protected] L. HURST (SBN 148738)[email protected] M. RAMSEY (SBN 209218)[email protected] Howard Street, San Francisco, CA 94105Tel: 1.415.773.5700 / Fax: 1.415.773.5759PETER A. BICKS ( pro hac vice)

[email protected] T. SIMPSON ( pro hac vice)[email protected] West 52nd Street, New York, NY 10019Tel: 1.212.506.5000 / Fax: 1.212.506.5151

BOIES, SCHILLER & FLEXNER LLPDAVID BOIES ( pro hac vice)[email protected]

333 Main Street, Armonk, NY 10504Tel: 1.914.749.8200 / Fax: 1.914.749.8300STEVEN C. HOLTZMAN (SBN 144177)[email protected] Harrison St., Ste. 900, Oakland, CA 94612Tel: 1.510.874.1000 / Fax: 1.510.874.1460

ORACLE CORPORATIONDORIAN DALEY (SBN 129049)[email protected] K. MILLER (SBN 95527)[email protected] M. SARBORARIA (SBN 211600)

[email protected] Oracle Parkway,Redwood City, CA 94065Tel: 650.506.5200 / Fax: 650.506.7117

ttorneys for Plaintiff ORACLE AMERICA, INC.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

ORACLE AMERICA, INC.,Plaintiff,

v.

GOOGLE INC.,

Defendant.

Case No. CV 10-03561 WHANOTICE OF MOTION AND MOTIONTO DISQUALIFY THE RULE 706EXPERT

Date: November 19, 2015Time: 8:00 a.m.Dept.: Courtroom 8, 19th Floor Judge: Honorable William H. Alsup

Case 3:10-cv-03561-WHA Document 1340 Filed 10/15/15 Page 1 of 9


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- 1 -MOTION TO DISQUALIFY

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NOTICE OF MOTION AND MOTION

TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE

THAT the following Motion to Disqualify the Rule 706 Expert will be heard on November 19,

2015 at 8:00 a.m., or as soon thereafter as counsel may be heard, in Courtroom 8, 19th Floor of

this Court, located at 450 Golden Gate Avenue, San Francisco, California, the Honorable William

H. Alsup presiding. Plaintiff Oracle America, Inc. will and hereby does move to disqualify the

Court’s Rule 706 expert on the grounds that it is no longer appropriate for Dr. Kearl to serve as a

neutral expert based on his work since the last trial, and that no other Rule 706 expert is needed in

light of the reduced scope of the case.

This motion is based on the Notice of Motion and Motion to Disqualify the Rule 706

Expert, the following Memorandum of Points and Authorities, the Declaration of Peter A Bicks,

the pleadings and papers on file in this action, and such other and further papers and argument

presented prior to or at the hearing on the Motion.

Dated: October 15, 2015

/s/ Peter A. BicksPETER A. BICKS

Attorney for Plaintiff ORACLE AMERICA, INC.



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MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

It is no longer appropriate for Dr. Kearl to serve as a neutral expert in this case. When he

was hired by Samsung in Apple v. Samsung , he sided with Google in a highly-publicized case

where the patents at issue involved technology that is part of Android. The case, still ongoing in

this district, was effectively Apple v. Google: Google agreed to indemnify Samsung, the very

same attorneys represented Google and Samsung, and Google had control and authority over

Samsung’s defense. And one of the issues in that case was whether, as Apple argued, Samsung

used Dr. Kearl’s analysis to give the jury a low damages number in an attempt to make all patents

appear to have little value. Or, as Apple asked the jury, why else would Samsung pay experts $5

million to pursue a $6 million claim if not to try to devalue patents? Having an expert wear the

hat of a neutral party in this case when he previously wore an Android hat is prejudicial to Oracle

and risks injecting complications into the case that should be avoided.

Nor should the Court replace Dr. Kearl because a Rule 706 expert is no longer necessary

in this case. The damages analysis will not have the same complexity now that the patent claims

are out of the case. The parties’ experts in the normal adversary process will sufficiently present

the issues to the Court and the jury. If the Court nevertheless concludes that an expert is

necessary to assist the Court in evaluating the reports of the parties’ experts, the parties should

jointly select a neutral expert who should not testify in front of the jury.

ARGUMENT

I. It Is Inappropriate For Dr. Kearl To Remain As A Neutral Expert.

Because a Rule 706 expert is appointed by the Court, he must remain neutral throughout

the proceedings. See Students of California Sch. for the Blind v. Honig , 736 F.2d 538, 549 (9th

Cir. 1984) (“Rule 706 allows the court to appoint a neutral expert on its own motion.”); vacated

on other grounds, 471 U.S. 148, 149-50 (1985); Gorton v. Todd, 793 F. Supp. 2d 1171, 1177

(E.D. Cal. 2011) (“The Rule only allows a court to appoint a neutral expert.”). This Court has

also recognized a Rule 706 expert’s neutrality, stating that the expert should provide a “neutral

explanation and viewpoint,” ECF 236 at 2, have “no conflicts,” ECF 610 at 4, and be



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“unimpeachable,” ECF 350 at 23.

Since Dr. Kearl testified in Apple v. Samsung —not as a neutral expert but, as we now

know, one hired by Samsung1 —it is no longer appropriate for him to serve in this neutral role.

Samsung is a leading Android device maker. And while Samsung was named as the defendant in

Apple v. Samsung , Samsung argued that the case was “really about Apple versus Google’s

Android.” Samsung Tr. 367.2 This was not an offhand remark, it was one of Samsung’s major,

oft-repeated themes: “It’s an attack on Android. It’s an attack, it’s an attack . . . It’s the truth.

It’s an attack on Android, and that’s what this case is.” Id. at 358-59; see also, e.g., id. at 372 (“A

holy war on Android.”); id. at 359 (Apple is “trying to limit consumer choice and to gain an

unfair advantage over its one major competitor, Google’s Android.”); id at 3267 (“[W]e have a

holy war with Google”). Samsung made this argument because the patents at issue dealt with

software features that are in Google’s Android, not hardware that is part of Samsung’s equipment.

Id. at 356-57. For example, one patent involved technology that allowed a user to run a search

both on the internet and locally on the phone. Id. at 1929. Even Apple’s counsel quoted an article

describing the search ability as “an awesome feature for Android.” Id. at 323.

On top of that, one of Samsung’s main defenses was that Google’s engineers are so

skilled, they would never copy. See, e.g., id. at 356 (“[The] accused features on [the Samsung]

phone were developed independently by . . . the software engineers at Google . . . .”); id. at 368

(Google’s engineers “don’t need to copy Apple.”); id at 370 (“the hard work and the ingenuity of

the engineers at Google”); id. at 356 (“most sophisticated and creative minds in the smartphone

industry”); id. at 368 (“they can do just about anything”); id. at 3258 (“brilliant engineers, [at]

Google, right up the street”); id. at 3265 (“these independent geniuses at Google”). That defense

made by the party who hired Dr. Kearl undermines his neutrality. In our case, it has already been

determined that Google did copy thousands of lines of Oracle’s code rather than create its

1See Declaration of Peter A. Bicks (“Bicks Decl.”) Ex. 5 (Dr. Kearl Apple v. Samsung Corrected

Expert Report) at 3.2 Citations to the trial transcript from Apple v. Samsung will be “Samsung Tr. __.” See BicksDecl. Ex. 1, 3-4. Citations to docket entries from that case will be “Samsung ECF __.” SeeBicks Decl. Ex. 3. The Apple v. Samsung docket number is 12-CV-00630-LHK (N.D. Cal.).



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libraries entirely from scratch.

Dr. Kearl argues that the Apple v. Samsung case’s emphasis on Android is not relevant

because Dr. Kearl was involved with Samsung’s counterclaims against Apple, which meant his

“analysis focused on the value of the asserted patents in the Apple products.” ECF 1313 at 4.

Accordingly, Dr. Kearl claims, “to the degree that a mobile operating system or platform was

relevant, that operating system would have been the Apple iOS operating system and not

Android.” ECF 1313 at 4. But that point fails to appreciate Oracle’s concerns with Dr. Kearl

serving as a neutral expert. The issue is not whether his analysis specifically dealt with Android.

A jury may well not appreciate that fine parsing of Dr. Kearl’s role. The issue is that Dr. Kearl

was on the Android/Google side of an extremely significant case, no matter whether he was on

offense, defense, or special teams.

Indeed, Google was involved in that case even more than being a focal point of the trial.

Google “agreed to indemnify Samsung,” as one Google lawyer testified in a 30(b)(6) deposition.

Samsung ECF 1920 at 13; Samsung Tr. 2785. As part of that indemnity, Google had the authority

to “control the litigation and defense.” Samsung ECF 1920 at 16; see also id. at 17 (noting that

Google has “control and authority over the defense” of at least two of the patents at issue).

The Google-Samsung connection was so strong that Google and Samsung were even

represented by the same attorneys in Apple v. Samsung . For some “third party” discovery issues,

Google itself filed briefs, rather than acting through Samsung. See, e.g., Samsung ECF 142. On

the Apple v. Samsung docket, all the attorneys representing Google are also attorneys representing

Samsung. See Samsung docket 12-CV-00630-LHK. There was effectively no difference

between Samsung and Google.

Dr. Kearl nevertheless contends that he was not part of any “strategy of defending

Android” because he was involved in Samsung’s counterclaims against Apple. ECF 1313 at 4.

This is at best a superficial approach. Apple laid bare the real strategy: that those counterclaims

were a key part of Samsung’s defense. Apple asked for over $2 billion in damages, Samsung Tr.

337. (It had just secured a $1 billion award against Samsung, see Apple Inc. v. Samsung

Electronics Co., 786 F.3d 983, 989 (Fed. Cir. 2015)). Samsung asserted patent counterclaims



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and, based on Dr. Kearl’s analysis, asked for only approximately $6 million. Samsung Tr. 3321.

Apple argued that Samsung was using Dr. Kearl to make all patents in the smartphone space seem

like they have a low value. Apple told the jury that it only made sense for Samsung to pay its

experts over $5 million to pursue a $6 million claim in one circumstance: “[I]f you’re trying to

devalue patents, all patents.” Id. at 3350-51; see also id. (“To devalue, to cheapen, to convince

you that patents are not worth that much.”); id. at 343 (“They want you to believe that patents are

not worth much.”).

Apple also suggested that Dr. Kearl artificially lowered his calculations, pointing to a part

of Dr. Kearl’s report where he stated that “[t]he value that . . . users placed on Facetime [an

allegedly infringing Apple feature] is likely higher, and likely many times higher, than the $.99

amount I used in my calculations.” Samsung Tr. 2673-74.

See Bicks Decl. Ex. 5 (Dr. Kearl Apple v.

Samsung Corrected Expert Report) at Tables 17a-f. Samsung, for its part, told the jury that

Apple’s “billion dollar numbers are completely unsupported,” and that it would “show [the jury]

how properly to calculate a royalty,” by demonstrating how “Dr. Kearl calculated these

damages.” Samsung Tr. at 412. In other words, Samsung’s lawyers directly offered Dr. Kearl’s

analysis as a rebuttal approach on the Android claims, not just as an affirmative calculation on

Samsung’s counterclaims.

Because Dr. Kearl was on the Android side of Apple v. Samsung , it is no longer proper for

him to serve as a neutral expert here. A Rule 706 expert is cloaked in the authority of the Court.

Cf. 29 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 6302 (2015)

(“[B]ecause of the expert’s link to the court, a jury may fail to scrutinize his testimony to the

same extent it would the testimony of party experts. Thus, the testimony of a court-appointed

expert may undermine rather than promote accurate factfinding.”). Both Dr. Kearl and Samsung

appeared to recognize the power of a court endorsement. Of all the times that Dr. Kearl has

served as an expert witness, Samsung asked Dr. Kearl only about his role in this case during the



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Samsung trial. Dr. Kearl answered by highlighting that he was hired neither for a plaintiff nor for

a defendant, but for the Court in this case: “I’ve been an expert witness in a lot of cases, both for

plaintiffs and defendants. But a few years ago, I was hired by Judge William Alsup of the

Northern District of California to be a court expert, to be his expert.” Samsung Tr. 2657. During

closing statements, Samsung emphasized Dr. Kearl’s neutrality in our case as a reason for his

reliability: “[He] even was retained by the court to serve as a neutral expert for the court in

another case.” Samsung Tr. 3319.

Given Dr. Kearl’s participation in Samsung/Google’s defense, he should not remain as

this Court’s expert. Retaining him as a “neutral” expert is inviting real prejudice to Oracle and

confusion for the jury. As previously discussed, Dr. Kearl’s testimony at trial would force Oracle

to steer between Scylla and Charybdis. See ECF 1311 at 5. Normally, a party could cross-

examine an expert about his ties to the opposing side. But because Dr. Kearl is the Court’s

expert, that approach risks suggesting to the jury that the Court has in some way endorsed

Google’s side. And the jury may already be confused about why it’s hearing from a third expert

on the damages issue. The other option, not raising the Apple v. Samsung case at all, means not

being able to expose to the jury potential biases as would be possible with any other expert.

Dr. Kearl should no longer serve as a Rule 706 expert in this case.

II. A Rule 706 Expert Is No Longer Necessary.

The Court should not appoint any Rule 706 expert to replace Dr. Kearl because—as

Oracle previously explained, see ECF 1311 at 5-7—a Rule 706 expert is no longer necessary

(though Oracle acknowledges that the Court previously stated that it would reevaluate the need

for a Rule 706 expert after the parties submit their expert damages reports, July 30, 2015 Tr. at

48-50).

“Rule 706 should be invoked only in rare and compelling circumstances.” Monolithic

Power Sys., Inc. v. O2 Micro Int’l Ltd., 558 F.3d 1341, 1348 (Fed. Cir. 2009). That appointment

is generally reserved for “complex scientific, medical or technical matters,” Armstrong v. Brown,

768 F.3d 975, 987 (9th Cir. 2014); see, e.g., Walker v. Am. Home Shield Long Term Disability

Plan, 180 F.3d 1065, 1071 (9th Cir. 1999) (involving “contradictory evidence about an elusive



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disease of unknown cause”).

The damages calculations are not as complex as they were when the patent claims were

still in the case. In November 2011, the Court explained that an important reason why the

damages issue “was particularly involved” was that “[d]amages from patent infringement are

governed by different legal standards than damages from copyright infringement, [and] some

accused products and acts are relevant to both parts of the action.” ECF 610 at 2. This

complication no longer exists. Whatever may be said of the significantly more complex first trial

Oracle does not intend to assert “complicated damage theories” at the retrial. See ECF 1321 at

13. And the Court will be able to decide for itself once it has the opportunity to review the

parties’ expert reports.

III. A Rule 706 Expert Should Not Testify At Trial.

Even if the Court determines that it still requires a Rule 706 expert, the parties should

jointly select a neutral expert who should not testify in front of the jury. As Google previously

explained: “If the jury also hears testimony from a third, neutral expert, that will further

complicate the jury’s decision on damages. Moreover, if the jury is aware that the Court’s expert

was appointed by the Court and is not a representative of the parties, that expert will have a

powerful stamp of Court approval and objectivity that will lend a disproportionate weight to that

expert’s opinions and testimony.” ECF 235 at 3. Oracle agrees. Any Rule 706 expert should not

testify at the trial.

CONCLUSION

Dr. Kearl should no longer serve as a Rule 706 expert in this case, and the Court should

not appoint a new expert.



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Dated: October 15, 2015 KAREN G. JOHNSON-MCKEWANANNETTE L. HURSTGABRIEL M. RAMSEYPETER A. BICKSLISA T. SIMPSONOrrick, Herrington & Sutcliffe LLP

By: /s/ Peter A. BicksPETER A. BICKS

Attorneys for Plaintiff ORACLE AMERICA, INC.



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DECLARATION OF PETER A. BICKSCV 10-03561 WHA

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ORRICK, HERRINGTON & SUTCLIFFE LLPKAREN G. JOHNSON-MCKEWAN (SBN 121570)[email protected] L. HURST (SBN 148738)[email protected] M. RAMSEY (SBN 209218)[email protected] Howard Street, San Francisco, CA 94105Tel: 1.415.773.5700 / Fax: 1.415.773.5759PETER A. BICKS ( pro hac vice) [email protected] T. SIMPSON ( pro hac vice)[email protected] West 52

ndStreet, New York, NY 10019

Tel: 1.212.506.5000 / Fax: 1.212.506.5151

BOIES, SCHILLER & FLEXNER LLPDAVID BOIES ( pro hac vice)[email protected] Main Street, Armonk, NY 10504

Tel: 1.914.749.8200 / Fax: 1.914.749.8300STEVEN C. HOLTZMAN (SBN 144177)[email protected] Harrison St., Ste. 900, Oakland, CA 94612Tel: 1.510.874.1000 / Fax: 1.510.874.1460

ORACLE CORPORATIONDORIAN DALEY (SBN 129049)[email protected] K. MILLER (SBN 95527)[email protected] M. SARBORARIA (SBN 211600)[email protected]

500 Oracle Parkway,Redwood City, CA 94065

Tel: 650.506.5200 / Fax: 650.506.7117

Attorneys for Plaintiff ORACLE AMERICA, INC.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

ORACLE AMERICA, INC.

Plaintiff,v.

GOOGLE INC.

Defendant.

Case No. CV 10-03561 WHA

DECLARATION OF PETER A. BICKSIN SUPPORT OF ORACLE’S MOTIONTO DISQUALIFY THE RULE 706EXPERT

Dept.: Courtroom 8, 19th Floor Judge: Honorable William H. Alsup

Case 3:10-cv-03561-WHA Document 1340-1 Filed 10/15/15 Page 1 of 3


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I, Peter A. Bicks, declare and state as follows:

1. I am a partner with the law firm of Orrick, Herrington & Sutcliffe LLP (“Orrick”),

attorneys of record for plaintiff Oracle America, Inc. (“Oracle”). I am a member of the bar of the

State of New York and have been admitted pro hac vice in this action. I am familiar with the

events, pleadings and discovery in this action and, if called upon as a witness, I could and would

testify competently to the matters stated herein of my own personal knowledge.

2. I submit this declaration in support of Oracle’s Motion to Disqualify the Rule 706

Expert.

3. On September 10, 2015, Oracle submitted to this Court Dr. James Kearl’s trial

testimony in Apple v. Samsung , 12-CV-00630-LHK (N.D. Cal.) See ECF 1311-10, 1311-11.

4. Attached as Exhibit 1 is a true and correct copy of the April 1, 2014 trial transcript

from Apple v. Samsung . This transcript includes the opening statements from Apple and

Samsung.

5. Attached as Exhibit 2 is a true and correct copy of Exhibit 3010 in Apple v.

Samsung . It is ECF 1920 in that case. This exhibit includes a transcript of a video deposition of

James Maccoun.

6. Attached as Exhibit 3 is a true and correct copy of an excerpt of the April 22,

2014 trial transcript from Apple v. Samsung . This excerpt indicates when James Maccoun’s

videotaped deposition was played to the jury.

7. Attached as Exhibit 4 is a true and correct copy of the April 29, 2014 trial

transcript from Apple v. Samsung . This transcript includes the closing arguments from Apple and

Samsung.

8. Attached as Exhibit 5 is a true and correct copy of excerpts from the Corrected

Expert Report of Dr. James R. Kearl in Apple v. Samsung as produced by Quinn Emanuel.

///

///

///

///



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I declare under penalty of perjury under the laws of the United States that the foregoing is

true and correct.

Executed this 15th day of October, 2015, at New York, New York.

/s/ Peter A. BicksPeter A. Bicks



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EXHIBIT 1



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UNI TED STATES COURT REPORTERS

268

UNI TED STATES DI STRI CT COURT

NORTHERN DI STRI CT OF CALI FORNI A

SAN J OSE DI VI SI ON

APPLE I NC. , A CALI FORNI ACORPORATI ON,

PLAI NTI FF,

VS.

SAMSUNG ELECTRONI CS CO. , LTD. ,A KOREAN BUSI NESS ENTI TY;

SAMSUNG ELECTRONI CS AMERI CA,I NC. , A NEWYORK CORPORATI ON;SAMSUNG TELECOMMUNI CATI ONSAMERI CA, LLC, A DELAWARELI MI TED LI ABI LI TY COMPANY,

DEFENDANTS.

)))))))))

))))))))

C- 12- 00630 LHK

SAN J OSE, CALI FORNI A

APRI L 1, 2014

VOLUME 2

PAGES 268-497

TRANSCRI PT OF PROCEEDI NGSBEFORE THE HONORABLE LUCY H. KOH

UNI TED STATES DI STRI CT J UDGE

APPEARANCES ON NEXT PAGE

OFFI CI AL COURT REPORTERS: LEE- ANNE SHORTRI DGE, CSR, CRRCERTI FI CATE NUMBER 9595I RENE RODRI GUEZ, CSR, CRRCERTI FI CATE NUMBER 8074

PROCEEDI NGS RECORDED BY MECHANI CAL STENOGRAPHY TRANSCRI PT PRODUCED WI TH COMPUTER

Case5:12-cv-00630-LHK Document1622 Filed04/07/14 Page1 of 231Case 3:10-cv-03561-WHA Document 1340-2 Filed 10/15/15 Page 2 of 232


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269

A P P E A R A N C E S:

FOR PLAI NTI FF MORRI SON & FOERSTERAPPLE: BY: HAROLD J . MCELHI NNY

RACHEL KREVANS

425 MARKET STREETSAN FRANCI SCO, CALI FORNI A 94105

WI LMER, CUTLER, PI CKERI NG,HALE AND DORRBY: WI LLI AM F. LEE60 STATE STREETBOSTON, MASSACHUSETTS 02109

BY: MARK D. SELWYN950 PAGE MI LL ROADPALO ALTO, CALI FORNI A 94304

FOR SAMSUNG: QUI NN, EMANUEL, URQUHART & SULLI VANBY: J OHN B. QUI NN WI LLI AM PRI CE865 S. FI GUEROA STREET, FLOOR 10LOS ANGELES, CALI FORNI A 90017

BY: VI CTORI A F. MAROULI S KEVI N B. J OHNSON555 TWI N DOLPHI N DRI VESUI TE 560REDWOOD SHORES, CALI FORNI A 94065



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I NDEX OF PROCEEDI NGS

OPENI NG STATEMENT BY MR. MCELHI NNY P. 298

OPENI NG STATEMENT BY MR. LEE P. 338

OPENI NG STATEMENT BY MR. QUI NN P. 351

I NDEX OF WI TNESSES

PLAI NTI FF' S

PHILIP SCHILLER

DI RECT EXAM BY MR. MCELHI NNY P. 417

CROSS- EXAM BY MR. PRI CE P. 475

I NDEX OF EXHI BI TS

MARKED ADMI TTED

PLAI NTI FF' S

118 428135A 429180 4321441 436113A 437127A 439133 440134 441143 445123 461

DEFENDANT' S



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SAN J OSE, CALI FORNI A APRI L 1, 2014

P R O C E E D I N G S

( J URY OUT AT 9:02 A. M. )

( J UROR ANDERSON PRESENT TELEPHONI CALLY. )

J UROR ANDERSON: THI S I S LAURA ANDERSON.

THE CLERK: HI , MS. ANDERSON. WE' RE CALLI NG FROM THE

COURTROOM.

J UROR ANDERSON: HELLO.

THE COURT: HI , MS. ANDERSON. TELL US WHAT I S

HAPPENI NG TODAY.

J UROR ANDERSON: I ' M NOT FEELI NG WELL. I WOKE UP

EARLY THI S MORNI NG WI TH VOMI TI NG AND DI ARRHEA, AND I T' S BEEN

GOI NG ON THROUGHOUT THE MORNI NG. I HAVE BEEN RI DI NG FROM

MONTEREY TO SAN J OSE. I ' VE HAD TO PULL OVER MULTI PLE TI MES.

THE COURT: OKAY. ALL RI GHT. THEN I - - I S THERE ANY

OBJ ECTI ON TO EXCUSI NG MS. LAURA ANDERSON FOR HARDSHI P?

MR. LEE: NONE FOR APPLE, YOUR HONOR.

MR. QUI NN: NOR FOR SAMSUNG.

THE COURT: ALL RI GHT. THEN, MS. ANDERSON, THANK YOU

VERY MUCH FOR YOUR SERVI CE. WE HOPE THAT YOU RECOVER QUI CKLY,

AND YOU HAVE FULFI LLED YOUR J URY DUTY.

J UROR ANDERSON: OKAY.

THE COURT: ALL RI GHT. THANK YOU.

J UROR ANDERSON: THANK YOU.

THE COURT: THANK YOU. FEEL BETTER.



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J UROR ANDERSON: THANK YOU.

THE COURT: OKAY. THEN LET' S BRI NG I N MS. GALONJ A,

NUMBER 7.

( J UROR GALONJ A PRESENT. )

THE COURT: MS. GALONJ A, WELCOME. TAKE A SEAT

ANYWHERE THAT' S COMFORTABLE FOR YOU. CAN YOU PLEASE TELL US

WHAT I SSUE YOU' RE HAVI NG?

J UROR GALONJ A: FI RST, I HAVE TO APOLOGI ZE, AND THEN

I HAVE TO TELL, I T' S AN HONOR FOR ME TO BE CHOSEN HERE.

BUT YESTERDAY WHEN I CAME HOME AND I LOOKED FOR ALL PROS

AND, YOU KNOW, AGAI NST THE DUTI ES, DUTY, I REALI ZED I HAVE SOME

I SSUE TO ASK YOU TO DI SMI SS ME BECAUSE YESTERDAY YOU ASKED I F

SOMEBODY HAD SOME HARDSHI P FOR THE, LI KE FI NANCI AL SI DE, AND

FI RST, I HAVE TO APOLOGI ZE. I ' M HERE 16 YEARS, BUT MY ENGLI SH

I S STI LL LI MI TED.

FI RST TI ME I RAI SED THE HAND AND THEN AFTER THAT, BECAUSE

I REALLY DI DN' T THI NK I WOULD BE CHOSEN 100 PERCENT.

AND THEN I SAI D, OKAY, I ' M NOT GOI NG TO TELL MY REASON

BECAUSE I T' S FI NANCI AL SI DE, HARD FOR ME.

BUT WHEN I CAME HOME AND I LOOK ON THAT, YOU KNOW, I ' M

WORKI NG TWO PART- TI ME J OBS, NOT WELL PAI D. MY HUSBAND DOESN' T

WORK FOR FOUR YEARS. WE HAVE SOME FI NANCI AL I SSUE.

AND I LOOK I N MY HANDBOOK, THE SCHOOL DI STRI CT WHERE I ' M

WORKI NG, THEY PAY ME, LI KE I WOULD BE PAI D $40 PER DAY.

TODAY I LEARNED SOMETHI NG MORE, AND I WI LL BE PAI D ONE



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MONTH LATER BECAUSE WE HAVE TO GI VE THE PROOF UNTI L THE 10TH OF

THE MONTH, AND THEN WE' LL BE PAI D, YOU KNOW, THE FOLLOWI NG

MONTH.

I T MEANS ONE MONTH I WI LL BE LATE, AND I LI VE PAY CHECK TO

PAY CHECK.

THE COURT: OKAY.

J UROR GALONJ A: THERE WI LL BE I SSUE FOR ME

FI NANCI ALLY.

AND THEN I ' M NOT DRI VI NG. MY HUSBAND GI VE ME RI DE RI GHT

NOW, AND HE WI LL PI CK ME UP.

THAT MEANS, YOU KNOW, I DON' T HAVE PROOF, I DON' T PARK THE

CAR, I DON' T HAVE MI LEAGE.

THE COURT: OH, WELL, YOUR HUSBAND WOULD STI LL GET

REI MBURSED FOR THE MI LEAGE, EVEN I F YOU' RE NOT DRI VI NG, WHOEVER

I S DRI VI NG WI LL GET REI MBURSED FOR THE MI LEAGE.

SO YOU WI LL GET REI MBURSED FOR THAT. I F THAT WOULD MAKE A

DI FFERENCE, YOU CAN LET ME KNOW.

J UROR GALONJ A: AND THEN THI S MORNI NG I CALL MY

J OB - - I WORK I N THE KI TCHEN I N THE SCHOOL. YOU KNOW, THEY

HAVE TO FI ND SUBSTI TUTE FOR ME. I T' S NOT EVERY TI ME EASY TO

FI ND, AND THEY TOLD ME THAT.

YOU KNOW, I TOLD MAYBE WHOLE MONTH AND MY SUPERVI SOR WAS,

LI KE, OH, YOU KNOW, HOWWE CAN FI ND FOR ONE- MONTH SUBSTI TUTE?

THE COURT: UM- HUM.

J UROR GALONJ A: AND I T' S ALSO I SSUE - -



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THE COURT: DO YOU THI NK THAT MI GHT PUT YOUR J OB AT

RI SK?

J UROR GALONJ A: YEAH, I THI NK SO.

THE COURT: ALL RI GHT. I S THERE ANY OBJ ECTI ON TO

EXCUSI NG MS. GALONJ A FOR HARDSHI P?

MR. LEE: NOT FOR APPLE, YOUR HONOR.

MR. QUI NN: NOT FOR SAMSUNG.

THE COURT: OKAY. MS. GALONJ A, I WANTED TO THANK YOU

SO MUCH FOR YOUR WI LLI NGNESS TO SERVE, AND I REALLY APPRECI ATE

THAT YOU TRI ED TO SERVE ON THI S J URY AND YOU' VE FULFI LLED YOUR

DUTY. SO THANK YOU.

J UROR GALONJ A: OKAY. I THANK YOU, EVERYBODY, FOR

UNDERSTANDI NG.

THE COURT: CAN YOU GO TO THE SECOND FLOOR TO THE

J URY ASSEMBLY ROOM, AND THEY CAN WORK OUT ALL OF YOUR

PAPERWORK.

J UROR GALONJ A: OKAY. THANK YOU.

THE COURT: THANK YOU.

THE CLERK: LET ME GO CHECK. I THI NK WE' RE STI LL

MI SSI NG ONE OR TWO.

THE COURT: WE' RE STI LL MI SSI NG A J UROR.

THE CLERK: WHEN SHE CAME OUT.

THE COURT: WE HAD BEEN MI SSI NG ONE OR TWO J URORS,

BUT LET' S SEE I F THEY' VE NOWARRI VED.

WAI T ONE SECOND.



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(PAUSE I N PROCEEDI NGS. )

THE COURT: OKAY. THE DOOR I S CLOSED.

I ASSUME YOU STOOD UP FOR AN I SSUE?

MR. MCELHI NNY: I DI D. J UST TWO, ACTUALLY NOT EVEN

I SSUES, WE' VE REACHED AGREEMENT ON SOMETHI NG.

THE COURT: OKAY. YOU' RE SETTLI NG?

(LAUGHTER. )

MR. MCELHI NNY: LET' S SEE. WHAT' S THE CALENDAR DATE?

MR. QUI NN AND I WOULD J OI NTLY MOVE THE COURT FOR AN ORDER

EXCLUDI NG PERCI PI ENT WI TNESSES FROM THI S COURTROOM AND THE

OVERFLOWCOURTROOM DURI NG THE TRI AL.

THE COURT: THAT' S GRANTED.

MR. MCELHI NNY: WI TH EACH SI DE TO POLI CE THEI R OWN

WI TNESSES.

THE COURT: THAT' S GRANTED. THAT MOTI ON I S GRANTED.

MR. MCELHI NNY: AND, SECONDLY, WI TH THE COURT' S

PERMI SSI ON, AS WE DI D I N THE FI RST TRI AL, MR. LEE AND I WOULD

LI KE TO SPLI T OUR OPENI NGS WI THI N THE TWO CASES WI THI N THE TI ME

LI MI T THAT YOUR HONOR HAS SET.

THE COURT: THAT' S FI NE.

(DI SCUSSI ON OFF THE RECORD BETWEEN THE COURT AND THE

CLERK. )

THE COURT: LET ME I NFORM THE PARTI ES THAT

MS. NGUYEN, WHO I S J UROR NUMBER 1, HAS J UST I NFORMED

MS. PARKER BROWN THAT SHE I S GOI NG ON VACATI ON AS OF THE



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EVENI NG OF WEDNESDAY, MARCH 7TH.

THE CLERK: MAY 7TH.

THE COURT: MAY 7TH. SO THAT WOULD BE, YOU KNOW,

SHOULD BE A FULL WEEK OF J URY DELI BERATI ONS.

I ' M HOPI NG THAT THE J URY MAY BEGI N DELI BERATI NG ON

TUESDAY, APRI L 29TH. CERTAI NLY BY APRI L 30TH, WEDNESDAY.

SO I DON' T PERCEI VE THAT TO BE A PROBLEM. DO YOU WANT TO

BE HEARD ON THAT? I ' M NOT ANXI OUS TO LOSE ANOTHER J UROR RI GHT

NOW.

MR. LEE: I ' M ACTUALLY PETRI FI ED ABOUT LOSI NG ANOTHER

J UROR.

BUT I DON' T THI NK I T' S A PROBLEM. WE SHOULD BE DONE BY

THEN.

THE COURT: OKAY. MR. QUI NN?

MR. QUI NN: I T DOESN' T SEEMTO BE A PROBLEM, YOUR

HONOR.

THE COURT: OKAY. SO WHEN SHE COMES OUT, I ' M J UST

GOI NG TO REASSURE HER THAT I ' VE CONSULTED WI TH YOU ALL, AND WE

DON' T PERCEI VE THAT TO BE A PROBLEM.

OKAY. THEN I THI NK WE HAVE EVERYONE NOW. I S THAT RI GHT,

MS. PARKER BROWN?

THE CLERK: WE DO.

THE COURT: ALL RI GHT. THEN LET' S START.

THE CLERK: I ' M GOI NG TO TAKE A SECOND AND TELL THEM

THAT THEY DON' T HAVE TO SPREAD ALL THE WAY, THEY CAN - -



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THE COURT: SURE, THAT' S FI NE.

I ' M SORRY. HAVE YOU ALREADY DI STRI BUTED THE J URY BI NDERS?

THE CLERK: NO.

(DI SCUSSI ON OFF THE RECORD BETWEEN THE COURT AND THE

CLERK. )

THE COURT: LET ME ASK THE PARTI ES, WOULD YOU LI KE

THEM TO GET THEI R J URY BI NDERS NOW? I THI NK I T MAKES SENSE

BECAUSE THE J URY I NSTRUCTI ONS ARE I N THERE.

AND I THI NK MR. SWARUUP CONFI RMED THAT THEY HAVE THE

LATEST VERSI ONS. OKAY. THANK YOU.

( J URY I N AT 9: 12 A. M. )

THE COURT: ALL RI GHT. WELCOME. PLEASE TAKE A SEAT.

WELCOME AND GOOD MORNI NG.

UNFORTUNATELY, MS. ANDERSON WAS VERY, VERY I LL, HAS HAD A

LOT OF VOMI TI NG. SO SHE HAD TO BE EXCUSED.

AND MS. GALONJ A AS WELL HAD SOME PRETTY SEVERE HARDSHI PS.

SO SHE HAD TO BE EXCUSED.

SO I HAVE EI GHT OF YOU LEFT AND YOU ARE EACH PRECI OUS, AND

I AM GOI NG TO BE PUTTI NG I MMUNE ENHANCI NG POWDERS AND VI TAMI N C

DRI NKS I N THE J URY ROOM. I ' M GOI NG TO ASK YOU TO EACH DRI NK

ONE OR TWO EVERY DAY. OKAY.

NO BUNGEE J UMPI NG, NOTHI NG CRAZY I N THE NEXT MONTH, REALLY

CAUTI OUS, BECAUSE I NEED TO HAVE ALL OF YOU REMAI N ON THE J URY.

OKAY?

ALL RI GHT.



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I ' M NOWGOI NG TO READ TO YOU THE PRELI MI NARY J URY

I NSTRUCTI ONS.

AND, MS. NGUYEN, I UNDERSTAND THAT YOU HAVE A VACATI ON

PLANNED THE EVENI NG OF MAY 7TH, WEDNESDAY. I THI NK THAT SHOULD

BE FI NE.

J UROR NGUYEN: OKAY.

THE COURT: WE DO HOPE THAT THE J URY WI LL BEGI N

DELI BERATI NG SOME TI ME ON EI THER TUESDAY, APRI L 29TH, OR

WEDNESDAY, APRI L 30TH. SO THAT SHOULD BE SUFFI CI ENT TI ME.

BUT I F I T' S NOT, THEN WE CAN ALWAYS DI SCUSS AT THAT POI NT

HOWTO PROCEED.

OKAY. YOU NOWHAVE J URY BI NDERS WHI CH YOU CAN LOOK

THROUGH THAT HAVE HELPFUL I NFORMATI ON ABOUT THE CASE.

I WANT TO POI NT YOU TO THE PRELI MI NARY J URY I NSTRUCTI ONS

WHI CH, EVEN THOUGH YOU HAVE A HARD COPY, I AM REQUI RED TO READ

THEM TO YOU.

SO I F YOU WOULD PLEASE TURN TO YOUR PRELI MI NARY J URY

I NSTRUCTI ONS I N YOUR BI NDERS. SO I T' S THE THI RD BI G TAB. I S

EVERYONE THERE? ALL RI GHT. THANK YOU.

ALL RI GHT. DUTY OF THE J URY.

LADI ES AND GENTLEMEN, YOU ARE NOWTHE J URY I N THI S CASE.

I T I S MY DUTY TO I NSTRUCT YOU ON THE LAW.

THESE I NSTRUCTI ONS ARE PRELI MI NARY I NSTRUCTI ONS TO HELP

YOU UNDERSTAND THE PRI NCI PLES THAT APPLY TO CI VI L TRI ALS AND TO

HELP YOU UNDERSTAND THE EVI DENCE AS YOU LI STEN TO I T.



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YOU WI LL BE ALLOWED TO KEEP THI S SET THROUGHOUT THE TRI AL

TO WHI CH TO REFER. THI S SET OF I NSTRUCTI ONS I S NOT TO BE TAKEN

HOME.

ACTUALLY, YOUR J URY BI NDERS ARE ALSO NOT TO BE TAKEN HOME.

PLEASE LEAVE THEM I N THE J URY ROOM DURI NG BREAKS AND I N THE

EVENI NGS. THANK YOU.

THI S SET OF I NSTRUCTI ONS MUST REMAI N I N THE J URY ROOM WHEN

YOU LEAVE I N THE EVENI NGS. AT THE END OF THE TRI AL, I WI LL

GI VE YOU A FI NAL SET OF I NSTRUCTI ONS. I T I S THE FI NAL SET OF

I NSTRUCTI ONS WHI CH WI LL GOVERN YOUR DELI BERATI ONS.

YOU MUST NOT I NFER FROM THESE I NSTRUCTI ONS OR FROM

ANYTHI NG I MAY SAY OR DO AS I NDI CATI NG THAT I HAVE AN OPI NI ON

REGARDI NG THE EVI DENCE OR WHAT YOUR VERDI CT SHOULD BE.

I T I S YOUR DUTY TO FI ND THE FACTS FROM ALL THE EVI DENCE I N

THE CASE. TO THOSE FACTS YOU WI LL APPLY THE LAWAS I GI VE I T

TO YOU.

YOU MUST FOLLOWTHE LAWAS I GI VE I T TO YOU WHETHER YOU

AGREE WI TH I T OR NOT.

DO NOT LET PERSONAL LI KES OR DI SLI KES, OPI NI ONS,

PREJ UDI CES, BI AS OR SYMPATHY I NFLUENCE YOUR DECI SI ON.

BI AS I NCLUDES BI AS FOR OR AGAI NST ANY PARTY OR ANY WI TNESS

BASED UPON NATI ONALI TY, RACE OR ETHNI CI TY.

THAT MEANS THAT YOU MUST DECI DE THE CASE SOLELY ON THE

EVI DENCE BEFORE YOU. YOU WI LL RECALL THAT YOU TOOK AN OATH TO

DO SO.



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280

I N FOLLOWI NG MY I NSTRUCTI ONS, YOU MUST FOLLOWALL OF THEM

AND NOT SI NGLE OUT SOME AND I GNORE OTHERS. THEY ARE ALL

I MPORTANT.

WHAT I S EVI DENCE?

THE EVI DENCE YOU ARE TO CONSI DER I N DECI DI NG WHAT THE

FACTS ARE CONSI STS OF:

1. THE SWORN TESTI MONY OF ANY WI TNESS;

2. THE EXHI BI TS WHI CH ARE RECEI VED I NTO EVI DENCE; AND,

3. ANY FACTS TO WHI CH THE LAWYERS HAVE AGREED.

WHAT I S NOT EVI DENCE?

I N REACHI NG YOUR VERDI CT, YOU MAY CONSI DER ONLY THE

TESTI MONY AND EVI DENCE RECEI VED I NTO EVI DENCE.

CERTAI N THI NGS ARE NOT EVI DENCE, AND YOU MAY NOT CONSI DER

THEM I N DECI DI NG WHAT THE FACTS ARE. I WI LL LI ST THEM FOR YOU.

NUMBER 1. ARGUMENTS AND STATEMENTS BY LAWYERS ARE NOT

EVI DENCE. THE LAWYERS ARE NOT WI TNESSES. WHAT THEY WI LL SAY

I N THEI R OPENI NG STATEMENTS, WI LL SAY I N THEI R CLOSI NG

ARGUMENTS, AND AT OTHER TI MES I S I NTENDED TO HELP YOU I NTERPRET

THE EVI DENCE, BUT I T I S NOT EVI DENCE.

I F THE FACTS AS YOU REMEMBER THEM DI FFER FROM THE WAY THE

LAWYERS HAVE STATED THEM, YOUR MEMORY OF THEM CONTROLS.

NUMBER 2. QUESTI ONS AND OBJ ECTI ONS BY LAWYERS ARE NOT

EVI DENCE. ATTORNEYS HAVE A DUTY TO THEI R CLI ENTS TO OBJ ECT

WHEN THEY BELI EVE A QUESTI ON I S I MPROPER UNDER THE RULES OF

EVI DENCE.



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YOU SHOULD NOT BE I NFLUENCED BY THE OBJ ECTI ON OR BY THE

COURT' S RULI NG ON I T.

NUMBER 3. TESTI MONY THAT HAS BEEN EXCLUDED OR STRI CKEN OR

THAT YOU HAVE BEEN I NSTRUCTED TO DI SREGARD I S NOT EVI DENCE AND

MUST NOT BY CONSI DERED.

I N ADDI TI ON, SOMETI MES TESTI MONY AND EXHI BI TS ARE RECEI VED

ONLY FOR A LI MI TED PURPOSE. WHEN I GI VE A LI MI TI NG

I NSTRUCTI ON, YOU MUST FOLLOWI T.

NUMBER 4. ANYTHI NG YOU MAY HAVE SEEN OR HEARD WHEN THE

COURT WAS NOT I N SESSI ON I S NOT EVI DENCE. YOU ARE TO DECI DE

THE CASE SOLELY ON THE EVI DENCE RECEI VED AT THE TRI AL.

EVI DENCE FOR A LI MI TED PURPOSE.

SOME EVI DENCE MAY BE ADMI TTED FOR A LI MI TED PURPOSE ONLY.

WHEN I I NSTRUCT YOU THAT AN I TEM OF EVI DENCE HAS BEEN

ADMI TTED FOR A LI MI TED PURPOSE, YOU MUST CONSI DER I T ONLY FOR

THAT LI MI TED PURPOSE AND FOR NO OTHER.

DI RECT OR CI RCUMSTANTI AL EVI DENCE.

EVI DENCE MAY BE DI RECT OR CI RCUMSTANTI AL. DI RECT EVI DENCE

I S DI RECT PROOF OF A FACT, SUCH AS TESTI MONY BY A WI TNESS ABOUT

WHAT THAT WI TNESS PERSONALLY SAWOR HEARD OR DI D.

CI RCUMSTANTI AL EVI DENCE I S PROOF OF ONE OR MORE FACTS FROM

WHI CH YOU COULD FI ND ANOTHER FACT.

YOU SHOULD CONSI DER BOTH KI NDS OF EVI DENCE. THE LAWMAKES

NO DI STI NCTI ON BETWEEN THE WEI GHT TO BE GI VEN TO EI THER DI RECT

OR CI RCUMSTANTI AL EVI DENCE. I T I S FOR YOU TO DECI DE HOWMUCH



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WEI GHT TO GI VE TO ANY EVI DENCE.

NUMBER 6. RULI NG ON OBJ ECTI ONS.

THERE ARE RULES OF EVI DENCE THAT CONTROL WHAT CAN BE

RECEI VED I NTO EVI DENCE. WHEN A LAWYER ASKS A QUESTI ON OR

OFFERS AN EXHI BI T I NTO EVI DENCE AND A LAWYER ON THE OTHER SI DE

THI NKS THAT I T I S NOT PERMI TTED BY THE RULES OF EVI DENCE, THAT

LAWYER MAY OBJ ECT.

I F I OVERRULE THE OBJ ECTI ON, THE QUESTI ON MAY BE ANSWERED

OR THE EXHI BI T RECEI VED.

I F I SUSTAI N THE OBJ ECTI ON, THE QUESTI ON CANNOT BE

ANSWERED AND THE EXHI BI T CANNOT BE RECEI VED.

WHENEVER I SUSTAI N AN OBJ ECTI ON TO A QUESTI ON, YOU MUST

I GNORE THE QUESTI ON AND MUST NOT GUESS WHAT THE ANSWER MI GHT

HAVE BEEN.

SOMETI MES I MAY ORDER THAT EVI DENCE BE STRI CKEN FROM THE

RECORD AND THAT YOU DI SREGARD OR I GNORE THE EVI DENCE. THAT

MEANS THAT WHEN YOU ARE DECI DI NG THE CASE, YOU MUST NOT

CONSI DER THE EVI DENCE THAT I TOLD YOU TO DI SREGARD.

CREDI BI LI TY OF WI TNESSES.

I N DECI DI NG THE FACTS I N THI S CASE, YOU MAY HAVE TO DECI DE

WHI CH TESTI MONY TO BELI EVE AND WHI CH TESTI MONY NOT TO BELI EVE.

YOU MAY BELI EVE EVERYTHI NG A WI TNESS SAYS, OR PART OF I T, OR

NONE OF I T.

PROOF OF A FACT DOES NOT NECESSARI LY DEPEND ON THE NUMBER

OF WI TNESSES WHO TESTI FY ABOUT I T.



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I N CONSI DERI NG THE TESTI MONY OF ANY WI TNESS, YOU MAY TAKE

I NTO ACCOUNT:

NUMBER 1. THE OPPORTUNI TY AND ABI LI TY OF THE WI TNESS TO

SEE OR HEAR OR KNOWTHE THI NGS TESTI FI ED TO;

NUMBER 2. THE WI TNESS' S MEMORY;

NUMBER 3. THE WI TNESS' S MANNER WHI LE TESTI FYI NG;

NUMBER 4. THE WI TNESS' S I NTEREST I N THE OUTCOME OF THE

CASE AND ANY BI AS OR PREJ UDI CE;

NUMBER 5. WHETHER OTHER EVI DENCE CONTRADI CTED THE

WI TNESS' S TESTI MONY;

NUMBER 6. THE REASONABLENESS OF THE WI TNESS' S TESTI MONY

I N LI GHT OF ALL THE EVI DENCE; AND,

NUMBER 7. ANY OTHER FACTORS THAT BEAR ON BELI EVABI LI TY.

THE WEI GHT OF THE EVI DENCE AS TO A FACT DOES NOT

NECESSARI LY DEPEND ON THE NUMBER OF WI TNESSES WHO TESTI FY ABOUT

I T.

I MPEACHMENT EVI DENCE - - WI TNESS.

THE EVI DENCE THAT A WI TNESS LI ED UNDER OATH OR GAVE

DI FFERENT TESTI MONY ON A PRI OR OCCASI ON MAY BE CONSI DERED,

ALONG WI TH ALL OTHER EVI DENCE, I N DECI DI NG WHETHER OR NOT TO

BELI EVE A WI TNESS AND HOWMUCH WEI GHT TO GI VE THE TESTI MONY OF

THE WI TNESS AND FOR NO OTHER PURPOSE.

NUMBER 9. CONDUCT OF THE J URY.

I WI LL NOWSAY A FEWWORDS ABOUT YOUR CONDUCT AS J URORS.

FI RST, KEEP AN OPEN MI ND THROUGHOUT THE TRI AL, AND DO NOT



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284

DECI DE WHAT THE VERDI CT SHOULD BE UNTI L YOU AND YOUR FELLOW

J URORS HAVE COMPLETED YOUR DELI BERATI ONS AT THE END OF THE

CASE.

SECOND, BECAUSE YOU MUST DECI DE THI S CASE BASED ONLY ON

THE EVI DENCE RECEI VED I N THE CASE AND ON MY I NSTRUCTI ONS AS TO

THE LAWTHAT APPLI ES, YOU MUST NOT BE EXPOSED TO ANY OTHER

I NFORMATI ON ABOUT THE CASE OR TO THE I SSUES I T I NVOLVES DURI NG

THE COURSE OF YOUR J URY DUTY.

THUS, UNTI L THE END OF THE CASE, OR UNLESS I TELL YOU

OTHERWI SE, DO NOT COMMUNI CATE WI TH ANYONE I N ANY WAY, AND DO

NOT LET ANYONE ELSE COMMUNI CATE WI TH YOU I N ANY WAY, ABOUT THE

MERI TS OF THE CASE OR ANYTHI NG TO DO WI TH I T.

THI S I NCLUDES DI SCUSSI NG THE CASE I N PERSON, I N WRI TI NG,

BY PHONE OR ELECTRONI C MEANS VI A E- MAI L, TEXT MESSAGI NG OR ANY

I NTERNET CHAT ROOM, BLOG, WEBSI TE OR ANY OTHER FEATURE.

THI S APPLI ES TO COMMUNI CATI NG WI TH YOUR FELLOWJ URORS

UNTI L I GI VE YOU THE CASE FOR DELI BERATI ON, AND I T APPLI ES TO

COMMUNI CATI NG WI TH EVERYONE ELSE, I NCLUDI NG YOUR FAMI LY

MEMBERS, YOUR EMPLOYER, AND THE PEOPLE I NVOLVED I N THE TRI AL,

ALTHOUGH YOU MAY NOTI FY YOUR FAMI LY AND YOUR EMPLOYER THAT YOU

HAVE BEEN SEATED AS A J UROR I N THI S CASE.

BUT I F YOU ARE ASKED OR APPROACHED I N ANY WAY ABOUT YOUR

J URY SERVI CE OR ANYTHI NG ABOUT THI S CASE, YOU MUST RESPOND THAT

YOU HAVE BEEN ORDERED NOT TO DI SCUSS THE MATTER AND TO REPORT

THE CONTACT TO THE COURT.



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285

BECAUSE YOU WI LL RECEI VE ALL OF THE EVI DENCE AND LEGAL

I NSTRUCTI ON YOU PROPERLY MAY CONSI DER TO RETURN A VERDI CT: DO

NOT READ, WATCH OR LI STEN TO ANY NEWS OR MEDI A ACCOUNTS OR

COMMENTARY ABOUT THE CASE OR ANYTHI NG TO DO WI TH I T; DO NOT DO

ANY RESEARCH, SUCH AS CONSULTI NG DI CTI ONARI ES, SEARCHI NG THE

I NTERNET OR USI NG OTHER REFERENCE MATERI ALS; AND DO NOT MAKE

ANY I NVESTI GATI ON OR I N ANY OTHER WAY TRY TO LEARN ABOUT THE

CASE ON YOUR OWN.

THE LAWREQUI RES THESE RESTRI CTI ONS TO ENSURE THE PARTI ES

HAVE A FAI R TRI AL BASED ON THE SAME EVI DENCE THAT EACH PARTY

HAS HAD AN OPPORTUNI TY TO ADDRESS. A J UROR WHO VI OLATES THESE

RESTRI CTI ONS J EOPARDI ZES THE FAI RNESS OF THESE PROCEEDI NGS AND

A MI STRI AL COULD RESULT THAT WOULD REQUI RE THE ENTI RE TRI AL

PROCESS TO START OVER.

I F ANY J UROR I S EXPOSED TO ANY OUTSI DE I NFORMATI ON, PLEASE

NOTI FY THE COURT I MMEDI ATELY.

NUMBER 10.

DURI NG DELI BERATI ONS YOU WI LL HAVE TO MAKE YOUR DECI SI ON

BASED ON WHAT YOU RECALL OF THE EVI DENCE. YOU WI LL NOT HAVE A

TRANSCRI PT OF THE TRI AL. I URGE YOU TO PAY CLOSE ATTENTI ON TO

THE TESTI MONY AS I T I S GI VEN.

I F AT ANY TI ME YOU CANNOT HEAR OR SEE THE TESTI MONY,

EVI DENCE, QUESTI ONS OR ARGUMENTS, LET ME KNOWSO THAT I CAN

CORRECT THE PROBLEM.

I F YOU WI SH, YOU MAY TAKE NOTES TO HELP YOU REMEMBER THE



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EVI DENCE. I F YOU DO TAKE NOTES, PLEASE KEEP THEM TO YOURSELF

UNTI L YOU AND YOUR FELLOWJ URORS GO TO THE J URY ROOM TO DECI DE

THE CASE.

DO NOT LET NOTE- TAKI NG DI STRACT YOU.

WHEN YOU LEAVE, YOUR NOTES SHOULD BE LEFT I N THE J URY

ROOM. NO ONE WI LL READ YOUR NOTES. THEY WI LL BE DESTROYED AT

THE CONCLUSI ON OF THE CASE.

WHETHER OR NOT YOU TAKE NOTES, YOU SHOULD RELY ON YOUR OWN

MEMORY OF THE EVI DENCE. NOTES ARE ONLY TO ASSI ST YOUR MEMORY.

YOU SHOULD NOT BE OVERLY I NFLUENCED BY YOUR NOTES OR THOSE OF

YOUR FELLOWJ URORS.

NUMBER 11.

THE PARTI ES HAVE AGREED TO CERTAI N FACTS THAT WI LL BE READ

TO YOU. YOU SHOULD THEREFORE TREAT THESE FACTS AS HAVI NG BEEN

PROVED.

NUMBER 12.

A DEPOSI TI ON I S THE SWORN TESTI MONY OF A WI TNESS TAKEN

BEFORE TRI AL. THE WI TNESS I S PLACED UNDER OATH TO TELL THE

TRUTH, AND LAWYERS FOR EACH PARTY MAY ASK QUESTI ONS. THE

QUESTI ONS AND ANSWERS ARE RECORDED.

YOU SHOULD CONSI DER DEPOSI TI ON TESTI MONY, PRESENTED TO YOU

I N COURT I N LI EU OF LI VE TESTI MONY, I NSOFAR AS POSSI BLE, I N THE

SAME WAY AS I F THE WI TNESS HAD BEEN PRESENT TO TESTI FY.

NUMBER 13.

EVI DENCE MAY BE PRESENTED TO YOU I N THE FORM OF ANSWERS OF



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ONE OF THE PARTI ES TO WRI TTEN I NTERROGATORI ES SUBMI TTED BY THE

OTHER SI DE. THESE ANSWERS WERE GI VEN I N WRI TI NG AND UNDER OATH

BEFORE THE ACTUAL TRI AL I N RESPONSE TO QUESTI ONS THAT WERE

SUBMI TTED I N WRI TI NG UNDER ESTABLI SHED COURT PROCEDURES.

YOU SHOULD CONSI DER THE ANSWERS, I NSOFAR AS POSSI BLE, I N

THE SAME WAY AS I F THEY WERE MADE FROM THE WI TNESS STAND.

14.

SOME WI TNESSES, BECAUSE OF EDUCATI ON OR EXPERI ENCE, ARE

PERMI TTED TO STATE OPI NI ONS AND THE REASONS FOR THOSE OPI NI ONS.

OPI NI ON TESTI MONY SHOULD BE J UDGED J UST LI KE ANY OTHER

TESTI MONY. YOU MAY ACCEPT I T OR REJ ECT, AND GI VE I T AS MUCH

WEI GHT AS YOU THI NK I T DESERVES, CONSI DERI NG THE WI TNESS' S

EDUCATI ON AND EXPERI ENCE, THE REASONS GI VEN FOR THE OPI NI ON,

AND ALL THE OTHER EVI DENCE I N THE CASE.

15.

LANGUAGES OTHER THAN ENGLI SH MAY BE USED DURI NG THI S

TRI AL.

WI TNESSES WHO DO NOT SPEAK ENGLI SH OR ARE MORE PROFI CI ENT

I N ANOTHER LANGUAGE TESTI FY THROUGH AN OFFI CI AL COURT

I NTERPRETER. ALTHOUGH SOME OF YOU MAY KNOWKOREAN, I T I S

I MPORTANT THAT ALL J URORS CONSI DER THE SAME EVI DENCE.

THEREFORE, YOU MUST ACCEPT THE I NTERPRETER' S TRANSLATI ON OF THE

WI TNESS' S TESTI MONY. YOU MUST DI SREGARD ANY DI FFERENT MEANI NG.

16.

YOU MUST NOT MAKE ANY ASSUMPTI ON ABOUT A WI TNESS OR A



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PARTY BASED SOLELY UPON THE USE OF AN I NTERPRETER TO ASSI ST

THAT WI TNESS OR PARTY.

17.

FROM TI ME TO TI ME DURI NG THE TRI AL, I T MAY BECOME

NECESSARY FOR ME TO TALK WI TH THE ATTORNEYS OUT OF THE HEARI NG

OF THE J URY, EI THER BY HAVI NG A CONFERENCE AT THE BENCH WHEN

THE J URY I S PRESENT I N THE COURTROOM, OR BY CALLI NG A RECESS.

PLEASE UNDERSTAND THAT WHI LE YOU ARE WAI TI NG, WE ARE

WORKI NG. THE PURPOSE OF THESE CONFERENCES I S NOT TO KEEP

RELEVANT I NFORMATI ON FROM YOU BUT TO DECI DE HOWCERTAI N

EVI DENCE I S TO BE TREATED UNDER THE RULES OF EVI DENCE AND TO

AVOI D CONFUSE AND ERROR.

OF COURSE, WE WI LL DO WHAT WE CAN TO KEEP THE NUMBER AND

LENGTH OF THESE CONFERENCES TO A MI NI MUM.

I MAY NOT ALWAYS GRANT AN ATTORNEY' S REQUEST FOR A

CONFERENCE. DO NOT CONSI DER MY GRANTI NG OR DENYI NG A REQUEST

FOR A CONFERENCE AS ANY I NDI CATI ON OF MY OPI NI ON OF THE CASE OR

OF WHAT YOUR VERDI CT SHOULD BE.

18.

THI S CASE I NVOLVES DI SPUTES RELATI NG TO UNI TED STATES

PATENTS. BEFORE SUMMARI ZI NG THE POSI TI ONS OF THE PARTI ES AND

THE LEGAL I SSUES I NVOLVED I N THE DI SPUTE, LET ME TAKE A MOMENT

TO EXPLAI N WHAT PATENTS ARE AND HOWTHEY ARE OBTAI NED.

PATENTS ARE GRANTED BY THE UNI TED STATES PATENT AND

TRADEMARK OFFI CE (SOMETI MES CALLED "THE PTO. ") I N GENERAL



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TERMS, A PATENT PROTECTS THE WAY AN ARTI CLE I S USED OR WORKS.

I T ALSO PROTECTS A METHOD OR PROCESS OF MAKI NG OR DOI NG

SOMETHI NG.

A VALI D UNI TED STATES PATENT GI VES THE PATENT OWNER THE

RI GHT TO PREVENT OTHERS FROM MAKI NG, USI NG, OFFERI NG TO SELL OR

SELLI NG THE PATENTED I NVENTI ON WI THI N THE UNI TED STATES, OR

FROM I MPORTI NG I T I NTO THE UNI TED STATES, DURI NG THE TERM OF

THE PATENT WI THOUT THE PATENT HOLDER' S PERMI SSI ON.

A VI OLATI ON OF THE PATENT OWNER' S RI GHTS I S CALLED

I NFRI NGEMENT. THE PATENT OWNER MAY TRY TO ENFORCE A PATENT

AGAI NST PERSONS BELI EVED TO BE I NFRI NGERS BY A LAWSUI T FI LED I N

FEDERAL COURT.

A PATENT I NCLUDES WHAT I S CALLED A "SPECI FI CATI ON. " THE

SPECI FI CATI ON MUST CONTAI N A WRI TTEN DESCRI PTI ON OF THE CLAI MED

I NVENTI ON TELLI NG WHAT THE I NVENTI ON I S, HOWI T WORKS, HOWTO

MAKE I T, AND HOWTO USE I T SO OTHERS SKI LLED I N THE FI ELD WI LL

KNOWHOWTO MAKE OR USE I T.

THE SPECI FI CATI ON CONCLUDES WI TH ONE OR MORE NUMBERED

SENTENCES. THESE ARE THE PATENT "CLAI MS . " WHEN THE PATENT I S

EVENTUALLY GRANTED BY THE PTO, THE CLAI MS DEFI NE THE BOUNDARI ES

OF I TS PROTECTI ON AND GI VE NOTI CE TO THE PUBLI C OF THOSE

BOUNDARI ES.

THE PROCESS OF OBTAI NI NG A PATENT I S CALLED PATENT

PROSECUTI ON. TO OBTAI N A PATENT, ONE MUST FI LE AN APPLI CATI ON

WI TH THE PTO. THE PTO I S AN AGENCY OF THE FEDERAL GOVERNMENT



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AND EMPLOYS TRAI NED EXAMI NERS WHO REVI EWAPPLI CATI ONS FOR

PATENTS.

AFTER THE APPLI CANT FI LES THE APPLI CATI ON, A PTO PATENT

EXAMI NER REVI EWS THE PATENT APPLI CATI ON TO DETERMI NE WHETHER

THE CLAI MS ARE PATENTABLE AND WHETHER THE SPECI FI CATI ON

ADEQUATELY DESCRI BES THE I NVENTI ON CLAI MED.

I N EXAMI NI NG A PATENT APPLI CATI ON, THE PATENT EXAMI NER

REVI EWS RECORDS AVAI LABLE TO THE PTO FOR WHAT I S REFERRED TO AS

"PRI OR ART. "

THE EXAMI NER ALSO WI LL REVI EWPRI OR ART I F I T I S SUBMI TTED

TO THE PTO BY AN APPLI CANT.

PRI OR ART I S DEFI NED BY LAWAND I WI LL GI VE YOU, AT A

LATER TI ME, SPECI FI C I NSTRUCTI ONS AS TO WHAT CONSTI TUTES PRI OR

ART.

HOWEVER, I N GENERAL, PRI OR ART I NCLUDES THI NGS THAT EXI STS

BEFORE THE CLAI MED I NVENTI ON, THAT WERE PUBLI CLY KNOWN OR USED

I N A PUBLI CLY ACCESSI BLE WAY I N THI S COUNTRY, OR THAT WERE

PATENTED OR DESCRI BED I N A PUBLI CATI ON I N ANY COUNTRY.

THE EXAMI NER CONSI DERS, AMONG OTHER THI NGS, WHETHER EACH

CLAI M DEFI NES AN I NVENTI ON THAT I S NEW, USEFUL, AND NOT OBVI OUS

I N VI EWOF THE PRI OR ART. A PATENT LI STS THE PRI OR ART THAT

THE EXAMI NER CONSI DERED; THI S LI ST I S CALLED THE "CI TED

PREFERENCES. "

AFTER THE PRI OR ART SEARCH AND EXAMI NATI ON OF THE

APPLI CATI ON, THE PATENT EXAMI NER THEN I NFORMS THE APPLI CANT I N



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WRI TI NG WHAT THE EXAMI NER HAS FOUND AND WHETHER ANY CLAI M I S

PATENTABLE, AND THUS WI LL BE "ALLOWED. "

THI S WRI TI NG FROM THE PATENT EXAMI NER I S CALLED AN "OFFI CE

ACTI ON. "

I F THE EXAMI NER REJ ECTS THE CLAI MS, THE APPLI CANT THEN

RESPONDS AND SOMETI MES CHANGES THE CLAI MS OR SUBMI TS NEW

CLAI MS.

THI S PROCESS, WHI CH TAKES PLACE ONLY BETWEEN THE EXAMI NER

AND THE PATENT APPLI CANT, MAY GO BACK AND FORTH FOR SOME TI ME

UNTI L THE EXAMI NER I S SATI SFI ED THAT THE APPLI CATI ON AND CLAI MS

MEET THE REQUI REMENTS FOR A PATENT.

THE PAPERS GENERATED DURI NG THI S TI ME OF COMMUNI CATI NG

BACK AND FORTH BETWEEN THE PATENT EXAMI NER AND THE APPLI CANT

MAKE UP WHAT I S CALLED THE "PROSECUTI ON HI STORY. " ALL OF THI S

MATERI AL BECOMES AVAI LABLE TO THE PUBLI C NO LATER THAN THE DATE

WHEN THE PATENT I SSUES.

THE FACT THAT THE PTO GRANTS A PATENT DOES NOT NECESSARI LY

MEAN THAT ANY I NVENTI ON CLAI MED I N THE PATENT, I N FACT,

DESERVES THE PROTECTI ON OF A PATENT. FOR EXAMPLE, THE PTO MAY

NOT HAVE HAD AVAI LABLE TO I T ALL THE I NFORMATI ON THAT WI LL BE

PRESENTED TO YOU.

A PERSON ACCUSED OF I NFRI NGEMENT HAS THE RI GHT TO ARGUE

HERE I N FEDERAL COURT THAT A CLAI MED I NVENTI ON I N THE PATENT I S

I NVALI D BECAUSE I T DOES NOT MEET THE REQUI REMENTS FOR A PATENT.

19.



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292

THERE ARE SEVEN PATENTS ASSERTED I N THI S CASE.

APPLE ACCUSES SAMSUNG OF I NFRI NGI NG UNI TED STATES PATENT

NUMBERS 5, 946, 647; 6, 847, 959; 7, 761, 414; 8, 046, 172.

PATENTS ARE OFTEN REFERRED TO BY THEI R LAST THREE DI GI TS,

SO APPLE' S PATENTS MAY BE REFERRED TO I N SHORTHAND AS THE ' 647,

' 959, ' 414, ' 721, AND ' 172 PATENTS.

SAMSUNG ACCUSES APPLE OF I NFRI NGI NG UNI TED STATES PATENT

NUMBERS 6, 226, 445 AND 5, 579, 239.

SAMSUNG' S PATENTS MAY BE REFERRED TO I N SHORT HAPPENED AS

THE 449 AND 239 PATENTS.

TO HELP YOU FOLLOWTHE EVI DENCE, I WI LL NOWGI VE YOU A

SUMMARY OF THE POSI TI ONS OF THE PARTI ES WI TH RESPECT TO THE

PATENT CLAI MS.

THE PARTI ES I N THI S CASE ARE APPLE, I NCORPORATED, WHI CH WE

WI LL REFER TO AS "APPLE" AND SAMSUNG ELECTRONI CS COMPANY

LI MI TED, SAMSUNG ELECTRONI CS AMERI CA, I NCORPORATED, AND SAMSUNG

TELECOMMUNI CATI ONS AMERI CA LI MI TED LI ABI LI TY CORPORATI ON, WHI CH

I WI LL REFER TO COLLECTI VELY AS "SAMSUNG" UNLESS I THI NK I T I S

I MPORTANT TO DI STI NGUI SH BETWEEN THESE ENTI TI ES FOR THE

PURPOSES OF A SPECI FI C I NSTRUCTI ON.

YOU MUST DECI DE THE CASE AS TO SAMSUNG ELECTRONI CS

COMPANY, SAMSUNG ELECTRONI CS AMERI CA, AND SAMSUNG

TELECOMMUNI CATI ONS AMERI CA SEPARATELY REGARDLESS OF WHETHER I

REFER TO THEM COLLECTI VELY AS "SAMSUNG" OR I NDI VI DUALLY.

THE CASE I NVOLVES FI VE UNI TED STATES PATENTS OWNED BY



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293

APPLE AND TWO UNI TED STATES PATENTS OWNED BY SAMSUNG.

APPLE FI LED THI S LAWSUI T AGAI NST SAMSUNG SEEKI NG MONEY

DAMAGES FROM SAMSUNG FOR ALLEGEDLY I NFRI NGI NG THE ' 647, ' 959,

' 414, ' 721, AND ' 172 PATENTS BY MAKI NG, I MPORTI NG, USI NG,

SELLI NG, AND/ OR OFFERI NG FOR SALE THE TABLET AND SMARTPHONE

PRODUCTS THAT APPLE ARGUES ARE COVERED CLAI M 9 OF THE ' 647

PATENT, CLAI M 25 OF THE ' 959 PATENT, CLAI M 20 OF THE ' 414

PATENT, CLAI M 8 OF THE ' 721 PATENT, AND CLAI M 18 OF THE ' 172

PATENT.

APPLE ALSO ARGUES THAT SAMSUNG ELECTRONI CS COMPANY

ACTI VELY I NDUCED SAMSUNG ELECTRONI CS AMERI CA, I NC. AND SAMSUNG

TELECOMMUNI CATI ONS AMERI CA LLC TO I NFRI NGE.

APPLE CONTENDS THAT SAMSUNG' S I NFRI NGEMENT HAS BEEN

WI LLFUL.

SAMSUNG DENI ES THAT I T HAS I NFRI NGED THE ASSERTED CLAI MS

OF THE ' 647, ' 959, ' 414, AND ' 721 PATENTS AND ARGUES THAT, I N

ADDI TI ON, THE ASSERTED CLAI MS ARE I NVALI D. I NVALI DI TY I S A

DEFENSE TO I NFRI NGEMENT.

YOUR DUTY FOR APPLE' S ' 172 PATENT I S DI FFERENT FROM THE

OTHER PATENTS. THE COURT HAS ALREADY FOUND THAT THE ADMI RE,

GALAXY NEXUS, GALAXY NOTE ( EXCLUDI NG ONE RELEASE), GALAXY SI I

(EXCLUDI NG ONE RELEASE) , GALAXY SI I EPI C 4G TOUCH (EXCLUDI NG

ONE RELEASE) , GALAXY SI I SKYROCKET (EXCLUDI NG ONE RELEASE) , AND

STRATOSPHERE I NFRI NGE CLAI M 18 OF THE ' 172 PATENT. YOU NEED

ONLY DETERMI NE WHETHER CLAI M 18 I S I NVALI D.



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294

SAMSUNG HAS ALSO BROUGHT CLAI MS AGAI NST APPLE FOR PATENT

I NFRI NGEMENT. SAMSUNG SEEKS MONEY DAMAGES FROM APPLE FOR

ALLEGEDLY I NFRI NGI NG THE ' 449 AND ' 239 PATENTS BY MAKI NG,

I MPORTI NG, USI NG, SELLI NG AND/ OR OFFERI NG FOR SALE APPLE' S, 1,

CERTAI N I PHONE AND I POD TOUCH PRODUCTS THAT SAMSUNG ARGUES ARE

COVERED BY CLAI M 27 OF THE ' 449 PATENT; AND, NUMBER 2, CERTAI N

I PHONE AND I PAD PRODUCTS THAT SAMSUNG ARGUES ARE COVERED BY

CLAI M 15 OF THE ' 239 PATENT.

SAMSUNG ALSO CONTENDS THAT APPLE' S I NFRI NGEMENT HAS BEEN

WI LLFUL.

APPLE DENI ES THAT I T HAS I NFRI NGED THE CLAI MS ASSERTED BY

SAMSUNG. APPLE DOES NOT ARGUE THAT SAMSUNG' S PATENTS ARE

I NVALI D. THEREFORE, YOU NEED ONLY DETERMI NE WHETHER THE ' 449

AND THE ' 239 PATENTS ARE I NFRI NGED AND WHETHER THAT

I NFRI NGEMENT HAS BEEN WI LLFUL.

I N THI S CASE, APPLE DOES NOT CONTEND THAT I T PRACTI CES THE

' 414, ' 172 OR ' 959 PATENTS, AND SAMSUNG DOES NOT CONTEND THAT

I T PRACTI CES THE ' 449 PATENT.

FOR EACH PARTY' S PATENT I NFRI NGEMENT CLAI MS AGAI NST THE

OTHER, THE FI RST I SSUE YOU WI LL BE ASKED TO DECI DE I S WHETHER

THE ALLEGED I NFRI NGER HAS I NFRI NGED THE CLAI MS OF THE PATENT

HOLDER' S PATENTS. FOR APPLE' S PATENTS, YOU WI LL ALSO BE ASKED

TO DECI DE WHETHER THOSE PATENTS ARE VALI D.

I F YOU DECI DE THAT ANY CLAI M OF EI THER PARTY' S PATENTS HAS

BEEN I NFRI NGED AND, FOR APPLE' S PATENTS, I S NOT I NVALI D, YOU



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295

WI LL THEN NEED TO DECI DE ANY MONEY DAMAGES TO BE AWARDED TO THE

PATENT HOLDER TO COMPENSATE I T FOR THE I NFRI NGEMENT.

YOU WI LL ALSO NEED TO MAKE A FI NDI NG AS TO WHETHER THE

I NFRI NGEMENT WAS WI LLFUL.

I F YOU DECI DE THAT ANY I NFRI NGEMENT WAS WI LLFUL, THAT

DECI SI ON SHOULD NOT AFFECT ANY DAMAGE AWARD YOU GI VE. I WI LL

TAKE WI LLFULNESS I NTO ACCOUNT LATER.

BEFORE YOU DECI DE WHETHER EI THER PARTY HAS I NFRI NGED THE

OTHER' S PATENTS, OR WHETHER APPLE' S PATENTS ARE I NVALI D, YOU

WI LL NEED TO UNDERSTAND THE PATENT CLAI MS. AS I MENTI ONED, THE

PATENT CLAI MS ARE NUMBERED SENTENCES AT THE END OF THE PATENT

THAT DESCRI BE THE BOUNDARI ES OF THE PATENT' S PROTECTI ON.

I T I S MY J OB AS J UDGE TO EXPLAI N TO YOU THE MEANI NG OF ANY

LANGUAGE I N THE CLAI MS THAT NEEDS I NTERPRETER.

I HAVE ALREADY DETERMI NED THE MEANI NG OF CERTAI N TERMS OF

THE CLAI MS OF SOME OF THE PATENTS AT I SSUE. YOU WI LL BE ASKED

TO APPLY MY DEFI NI TI ONS OF THESE TERMS I N THI S CASE.

HOWEVER, MY I NTERPRETATI ON OF THE LANGUAGE OF THE CLAI MS

SHOULD NOT BE TAKEN AS AN I NDI CATI ON THAT I HAVE A VI EW

REGARDI NG I SSUES, SUCH AS I NFRI NGEMENT (EXCEPT FOR APPLE' S ' 172

PATENT) AND I NVALI DI TY. THOSE I SSUES ARE YOURS TO DECI DE.

I WI LL PROVI DE YOU WI TH MORE DETAI LED I NSTRUCTI ONS ON THE

MEANI NG OF THE CLAI MS BEFORE YOU RETI RE TO DELI BERATE YOUR

VERDI CT.

FI NAL I NSTRUCTI ON.



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296

THE TRI AL WI LL NOWBEGI N. FI RST, EACH SI DE MAY MAKE AN

OPENI NG STATEMENT. AN OPENI NG STATEMENT I S NOT EVI DENCE. I T

I S SI MPLY AN OUTLI NE TO HELP YOU UNDERSTAND WHAT THAT PARTY

EXPECTS THE EVI DENCE WI LL SHOW.

THE PRESENTATI ON OF EVI DENCE WI LL THEN BEGI N. WI TNESSES

WI LL TAKE THE WI TNESS STAND AND THE DOCUMENTS WI LL BE OFFERED

AND ADMI TTED I NTO EVI DENCE.

THERE ARE TWO STANDARDS OF PROOF THAT YOU WI LL APPLY TO

THE EVI DENCE, DEPENDI NG ON THE I SSUE YOU ARE DECI DI NG. ON SOME

I SSUES, YOU MUST DECI DE WHETHER SOMETHI NG I S MORE LI KELY TRUE

THAN NOT. ON OTHER I SSUES, YOU MUST USE A HI GHER STANDARD AND

DECI DE WHETHER I T I S HI GHLY PROBABLE THAT SOMETHI NG I S TRUE.

APPLE WI LL START BY PRESENTI NG I TS EVI DENCE ON I TS

CONTENTI ONS THAT SAMSUNG HAS I NFRI NGED APPLE' S PATENTS. APPLE

WI LL ALSO PRESENT I TS EVI DENCE THAT SAMSUNG' S I NFRI NGEMENT HAS

BEEN WI LLFUL.

THESE WI TNESSES WI LL BE QUESTI ONED BY APPLE' S COUNSEL I N

WHAT I S CALLED DI RECT EXAMI NATI ON.

AFTER THE DI RECT EXAMI NATI ON OF A WI TNESS I S COMPLETED,

SAMSUNG HAS AN OPPORTUNI TY TO CROSS- EXAMI NE THE WI TNESS.

TO PROVE I NFRI NGEMENT OF ANY CLAI M, APPLE MUST PERSUADE

YOU THAT I T I S MORE LI KELY THAN NOT THAT SAMSUNG HAS I NFRI NGED

APPLE' S PATENTS.

AFTER APPLE HAS PRESENTED I TS WI TNESSES, SAMSUNG WI LL CALL

I TS WI TNESSES, WHO WI LL ALSO BE EXAMI NED AND CROSS- EXAMI NED.



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297

SAMSUNG WI LL PRESENT I TS EVI DENCE ON I TS CONTENTI ONS THAT APPLE

HAS I NFRI NGED SAMSUNG' S PATENTS.

SAMSUNG WI LL ALSO PRESENT I TS EVI DENCE THAT APPLE' S

I NFRI NGEMENT HAS BEEN WI LLFUL.

TO PROVE I NFRI NGEMENT OF ANY CLAI M, SAMSUNG MUST PERSUADE

YOU THAT I T I S MORE LI KELY THAN NOT THAT APPLE HAS I NFRI NGED

SAMSUNG' S PATENTS.

SAMSUNG WI LL ALSO PRESENT I TS EVI DENCE THAT ASSERTED

CLAI MS OF APPLE' S PATENTS ARE NOT I NFRI NGED AND ARE I NVALI D.

TO PROVE I NVALI DI TY OF ANY CLAI M, SAMSUNG MUST PERSUADE YOU

THAT I T I S HI GHLY PROBABLE THAT THE CLAI M I S I NVALI D.

APPLE WI LL THEN RETURN AND WI LL PUT ON EVI DENCE RESPONDI NG

TO SAMSUNG' S CONTENTI ON THAT THE APPLE PATENTS ARE I NVALI D.

APPLE WI LL THEN PRESENT I TS EVI DENCE THAT ASSERTED CLAI MS OF

SAMSUNG' S PATENTS ARE NOT I NFRI NGED.

BECAUSE THE EVI DENCE I S I NTRODUCED PI ECEMEAL, YOU MAY NEED

TO KEEP AN OPEN MI ND AS THE EVI DENCE COMES I N AND WAI T FOR ALL

THE EVI DENCE BEFORE YOU MAKE ANY DECI SI ONS. I N OTHER WORDS,

YOU SHOULD KEEP AN OPEN MI ND THROUGHOUT THE ENTI RE TRI AL.

AFTER THE EVI DENCE HAS BEEN PRESENTED, I WI LL GI VE YOU

FI NAL I NSTRUCTI ONS ON THE LAWTHAT APPLI ES TO THE CASE, AND THE

ATTORNEYS WI LL MAKE CLOSI NG ARGUMENTS. CLOSI NG ARGUMENTS ARE

NOT EVI DENCE.

AFTER THE I NSTRUCTI ONS AND CLOSI NG ARGUMENTS, YOU WI LL

THEN DECI DE THE CASE.



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PLAI NTI FF' S OPENI NG STATEMENT


298

WOULD EVERYONE J UST LI KE A MI NUTE TO J UST STAND UP. WHY

DON' T WE ALL J UST TAKE A STAND UP MOMENT BEFORE THE LI GHTS GO

OFF FOR THE VI DEO.

THE COURT: WE' RE NOWGOI NG TO WATCH A VI DEO. I T' S

ABOUT 17 MI NUTES. I ' M GOI NG TO ASK MS. PARKER BROWN I F YOU

WOULD DI M THE LI GHTS, PLEASE.

(A VI DEOTAPE WAS PLAYED I N OPEN COURT OFF THE RECORD. )

THE COURT: ALL RI GHT. WE ARE NOWREADY FOR OPENI NG

STATEMENTS. EACH SI DE MAY MAKE ONE, BUT THEY' RE NOT REQUI RED

TO DO SO.

I REMI ND YOU THAT AN OPENI NG STATEMENT I S NOT EVI DENCE.

WE ARE GOI NG TO KEEP OUR REGULAR SCHEDULE OF TAKI NG A

BREAK AT 10: 30 FOR AT LEAST 15 MI NUTES. WE' LL STI LL TAKE OUR

LUNCH BREAK FROM NOON TO 1: 00 AND HAVE OUR REGULAR AFTERNOON

BREAKS. OKAY?

ALL RI GHT. GO AHEAD, PLEASE. TI ME I S NOW10: 00 O' CLOCK.

MR. MCELHI NNY: THANK YOU, YOUR HONOR.

(MR. MCELHINNY GAVE HIS OPENING STATEMENT ON BEHALF OF

PLAINTIFF.)

MR. MCELHI NNY: MAY I T PLEASE THE COURT.

GOOD MORNI NG.

J URORS: GOOD MORNI NG.

MR. MCELHI NNY: WHERE WERE YOU ON J ANUARY 9TH, 2007?

THERE ARE A LOT OF PROBLEMS WI TH LAWSUI TS, AND I THI NK BY

THE TI ME WE' RE DONE, YOU' LL HAVE YOUR OWN LI TTLE LI ST OF ALL



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THE PROBLEMS WI TH LAWSUI TS AND I MPORTANT TRI ALS.

BUT ONE OF THEM THAT I WANT TO I LLUSTRATE FOR YOU I S THAT

I T TAKES A WHI LE TO GET TO COURT. I T TAKES A WHI LE TO BRI NG A

DI SPUTE TO A J URY LI KE YOU, AND DURI NG THAT TI ME, TI ME PASSES

AND LI FE CHANGES AND THI NGS THAT WERE NEWBEFORE NOWSEEM

COMMON.

AND SO ONE OF THE TESTS HERE, ONE OF THE THI NGS THAT YOU

SORT OF HAVE TO DO I S PUT YOURSELF BACK I N TI ME WHEN THESE

EVENTS OCCURRED AND REMEMBER WHAT LI FE WAS LI KE THEN.

SO THAT' S WHY I STARTED WI TH THAT QUESTI ON. WHERE WERE

YOU ON J ANUARY 9TH, 2007?

WE KNOWTHAT ON THAT DATE HUNDREDS OF PEOPLE I N THE BAY

AREA WERE I N THE MOSCONE CONVENTI ON CENTER I N SAN FRANCI SCO AT

THE MACWORLD CONVENTI ON BECAUSE THAT I S THE DATE THAT THE

I PHONE WAS I NTRODUCED.

AND WE KNOWTHAT BECAUSE WE HAVE A VI DEOTAPE OF THAT

PRESENTATI ON WHI CH I WOULD LI KE TO SHOWYOU.

(A VI DEOTAPE WAS PLAYED I N OPEN COURT OFF THE RECORD. )

MR. MCELHI NNY: MY NAME I S HAROLD MCELHI NNY. YOU MET

MY GOOD FRI END, BI LL LEE, YESTERDAY. AND ALONG WI TH MARK

SELWYN AND MY PARTNER, RACHEL KREVANS, AND OTHER MEMBERS OF OUR

TEAM, I T I S OUR PRI VI LEGE AND HONOR TO BE REPRESENTI NG APPLE I N

THI S LI TI GATI ON AGAI NST SAMSUNG ELECTRONI CS AND I TS

SUBSI DI ARI ES.

I T I S OUR J OB TO BRI NG YOU THE EVI DENCE THAT YOU' RE GOI NG



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TO NEED I N ORDER TO DO YOUR J OB, WHI CH I S TO DECI DE THE I SSUES

THAT J UDGE KOH WI LL GI VE YOU AT THE END OF THI S CASE.

WHI LE I ' M MAKI NG I NTRODUCTI ONS, I WOULD LI KE TO I NTRODUCE

TWO OTHER PEOPLE TO YOU. I N THE AUDI ENCE WE HAVE BRUCE SEWELL,

WHO' S THE GENERAL COUNSEL OF APPLE, AND NOREEN KRALL, WHO' S THE

VI CE- PRESI DENT AND I N CHARGE OF LI TI GATI ON FOR APPLE. AND

NOREEN I S MY BOSS.

ON BEHALF OF ALL OF APPLE' S EMPLOYEES, WE WOULD LI KE TO

THANK YOU FOR SERVI NG ON THI S J URY.

ALMOST SEVEN YEARS AGO, THE I NTRODUCTI ON OF THE I PHONE

LI TERALLY CHANGED THE NATURE OF THE TELEPHONE. THE PEOPLE AT

APPLE I NVENTED A WAY TO PUT THE COMPUTI NG POWER OF A MAC

COMPUTER ON A HANDHELD COMMUNI CATI ONS DEVI CE.

THEY ALSO MOVED THE WORLD FROM A PHYSI CAL KEYBOARD TO

TAPPI NG ON AN I NTERACTI VE GLASS FACE.

THOSE WERE TWO DRAMATI C CHANGES THAT HAPPENED AT THAT

MOMENT, AND THAT' S WHY TODAY, WHEN EVERYBODY DOESN' T - -

SOMEBODY THE OTHER DAY J UST SAI D TO ME, DO YOU REMEMBER WHEN

PEOPLE USED TO TALK ON TELEPHONES? DO YOU REMEMBER WHEN THEY

USED TO HAVE THOSE BI G BACK TELEPHONES? DO YOU REMEMBER WHEN

THERE USED TO BE PAY TELEPHONE BOOTHS ON EVERY CORNER?

THAT WORLD I S GONE, AND I T CHANGED ON THAT DAY I N J ANUARY

OF 2007.

YOU DON' T NEED TO TAKE MY WORD FOR THE EFFECT THAT THE

I PHONE HAD. DURI NG THI S TRI AL, YOU' LL SEE A NUMBER OF



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CONTEMPORANEOUS ARTI CLES AND REVI EWS THAT WI LL REMI ND YOU OF

THOSE EFFECTS.

SO, FOR EXAMPLE, YOU WI LL SEE PLAI NTI FF' S EXHI BI T 135A.

WE WI LL USE SOME TERMI NOLOGY, PLAI NTI FF' S EXHI BI T, YOU CAN SEE

THAT THE LOWER

15-10-15 Oracle Motion to Disqualify Damages Expert

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