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Unredacted Filings Reveal Claims of Juror Misconduct in Apple vs Samsung Trial
zaphod777 writes with this bit from Groklaw on more Jury related intrigue in the Apple-Samsung trial: "Samsung has now filed an unredacted version [PDF] of its motion for judgment as a matter of law, a new trial, and/or remittitur. That's the one that was originally filed with a redacted section we figured out was about the foreman, Velvin Hogan. The judge ordered it filed unsealed, and so now we get to read all about it. It's pretty shocking to see the full story. I understand now why Samsung tried to seal it. They call Mr. Hogan untruthful in voir dire (and I gather in media interviews too), accuse him of 'implied bias' and of tainting the process by introducing extraneous 'evidence' of his own during jury deliberations, all of which calls, Samsung writes, for an evidentiary hearing and a new trial with an unbiased jury as the cure."
It would seem that everyone's favorite foreman did not disclose that he was sued by Seagate for breach of contract, and that he may have had a chip on his shoulder considering that Samsung is the largest single shareholder of Seagate.
I think for lying during selection Hogan should be charged with perjury and contempt of court.
The article says 10 years, but I'm not sure where that comes from.
The Samsung filing states he was asked “you or a family member or someone very close to you [has] ever been involved in a lawsuit, either as a plaintiff, a defendant, or as a witness?"
i.e. no time qualifier
He was asked if he was involved in any lawsuits within the last ten years, which he answered. The lawsuit with Seagate occurred in 1993 which is beyond ten years ago. Thus, he did not disclose it because it wasn't asked of him. But let's pretend he attempted to deceive the system in order to screw over Samsung because that sounds better, right?
(emphasis mine)
Where do you get "within the last ten years", it is not in the summary, the article, or the unredacted filing, which says:
“you or a family member or someone very close to you [has] ever been involved in a lawsuit, either as a plaintiff, a defendant, or as a witness?” (Reporter’s Transcript (“RT”) 148:18-21), he disclosed one such lawsuit but failed to disclose two others, including one in which he was sued by his former employer, Seagate, for breach of contract after he failed to repay a promissory note (RT 148:22-150:12; Seagate Tech., Inc. v. Hogan, Case No. MS-93-0919 (Santa Cruz Mun. Ct. June 30, 1993), Declaration of Susan Estrich (“Estrich Decl.”) Ex. A), and filed for personal bankruptcy six months later (In re Velvin R. Hogan and Carol K. Hogan, Case No. 93-58291-MM (Bankr. N.D. Cal. Dec. 27, 1993); Estrich Decl., Ex. B).
the court: okay. welcome back. please take a seat. we had a few more departures in your absence. let's continue with the questions. the next question is, have you or a family member or someone very close to you ever been involved in a lawsuit, either as a plaintiff, a defendant, or as a witness?
from the voir dire transcript
I've been on a jury, and you'd be amazed at how easy it is for the entire jury to fall in line behind someone who seems to know what he's talking about, especially if the trial involves something few people have experience in (such as patent law). If the rest of the jury trusted him as the resident expert on the issue at hand, they would likely go along with whatever he said.
The '10 years' comment comes from an interview that the juror gave. The transcript does not back up his statement. He may have misunderstood, or maybe the transcript was wrong (I'd think unlikely). But that's the story.
Prediction for end of Universe #42: Fencepost error in Quantum_bogosort.cpp
pshaw. Primary sources? Yeah, right I'll accept that when I'm dead. Get back to me when you've got a Wikipedia article or, preferably, a tweet.
He was asked if he was involved in any lawsuits within the last ten years, which he answered. The lawsuit with Seagate occurred in 1993 which is beyond ten years ago. Thus, he did not disclose it because it wasn't asked of him. But let's pretend he attempted to deceive the system in order to screw over Samsung because that sounds better, right?
(emphasis mine)
Where do you get "within the last ten years", it is not in the summary, the article, or the unredacted filing, which says:
“you or a family member or someone very close to you [has] ever been involved in a lawsuit, either as a plaintiff, a defendant, or as a witness?” (Reporter’s Transcript (“RT”) 148:18-21), he disclosed one such lawsuit but failed to disclose two others, including one in which he was sued by his former employer, Seagate, for breach of contract after he failed to repay a promissory note (RT 148:22-150:12; Seagate Tech., Inc. v. Hogan, Case No. MS-93-0919 (Santa Cruz Mun. Ct. June 30, 1993), Declaration of Susan Estrich (“Estrich Decl.”) Ex. A), and filed for personal bankruptcy six months later (In re Velvin R. Hogan and Carol K. Hogan, Case No. 93-58291-MM (Bankr. N.D. Cal. Dec. 27, 1993); Estrich Decl., Ex. B).
It's in several other articles since:
Hogan, in a phone interview yesterday, denied that there was any misconduct, saying the court instructions for potential jurors required disclosure of any litigation they were involved in within the last 10 years -- and that the 1993 bankruptcy and related litigation involving Seagate fell well outside that time range.
“Had I been asked an open-ended question with no time constraint, of course I would’ve disclosed that,” Hogan said, referring to the bankruptcy and related litigation. “I’m willing to go in front of the judge to tell her that I had no intention of being on this jury, let alone withholding anything that would’ve allowed me to be excused.”
Note: I'm not saying he's right and the Samsung brief is wrong - just that that's where the 10 year claim comes from.
If you have a PACER account, you should be able to pull up the Court Reporter's transcript from voir dire, and see what question was asked.
The problem with that is that according to the transcript he was asked a question over and above the "court instructions". The court instructions refer to a form that potential jurors are asked to fill out. The transcript refers to a direct question asked during voir dire. While it is possible that he legitimately believed that the court instructions applied to the question, that does not change the fact that he failed to answer the question as asked. It is also possible he either misunderstood the court instructions or flat out lied about them and that no such instruction was ever issued.
The truth is that all men having power ought to be mistrusted. James Madison
What is this man doing here???
At the time of his lawsuit (1993), Seagate wasn't owned by Samsung. And wouldn't be for more than a decade later, until 2011.
There are two types of people in the world: Those who crave closure
It's marked troll because it's incorrect. Groklaw has the transcripts, he was asked if he was ever involved in any such lawsuits with no time constraints. 10 years was never mentioned or asked
See it for yourself: court transcript from Jury Selection
Court: The next question is, have you or a family member or someone very close to you ever been involved in a lawsuit, either as a plaintiff, a defendant, or as a vitness?
...
Prospective juror: In 2008, after my company went belly up, the programmer that worked for me filed a lawsuit against me
He goes on to give details of that case (which was settled out of court). He never disclosed the dispute with Seagate. But obviously, the court never said anything about not disclosing cases older than 10 years. So, he failed to disclose a very important case, probably because doing so would have meant that he couldn't have served in the jury, which he really much wanted (see TFA).
Guess what? He doesn't get to make that decision. The judge wanted to know ever? That's the judge's call. When it comes to jury selection, they get to decide what is relevant. Doesn't mean you'll be excluded, but they want to know.
For example I was in the pool for a marajuna case (way at the end, so unlikely I'd get on the jury) and the subject of criminal record came up. For employment they can ask about felonies in the last I believe 7 years. The court has wider latitude for juries. So one guy, he was probably 45 or 50, says ya I have a guilty plea for auto theft when I was 18. Judge asks more about it, it was a "young and stupid" kind of thing, his civil rights have been fully restored, and so on. He ended up being on the jury.
It is the kind of thing he wouldn't reveal to an employer, but the court got to ask. They weren't dicks about it, like I said he sat on the jury, but the judge gets to weigh it and make a decision.
So CPT Armchair Lawyer here doesn't get to decide how long they are allowed to ask about. If they asked ever, they get to ask ever.
Even better than a tweet, I've got an anonymous Slashdot post implicating that does business in Tehran.
People always whine about how courts seem to not want people with expertise in an area, and this is the reason. The jury is meant to be the judge of fact, not the judge of law (the judge is the judge of law). So the idea is they are given a set of evidence, and told what the law is and how to apply it, and then, in that context only, they are to decide what the facts show. They aren't to use outside information, they aren't to use their own supposed understanding. They consider the evidence presented and the law as instructed.
The whole idea is so you don't have an armchair lawyer with a hazy understanding of the law making bad decisions. You don't want someone who says "I'm an expert on this, listen to me," and turns out to be wrong, or motivated by something else.
The jury is not supposed to be an investigative force or anything. They are just supposed to judge the facts they are given in the context of the law they are instructed. Hence while you don't want people who are "stupid" in terms of low IQ, you do want people who do not have a background in the case. You want people who will consider things with an open mind, not come in assuming they know how things should go already.
Better not to link to 'that site' (f.o.s.s.patents) as it is run by the notorious you_pay_for_what_I_say F.Mueller.
Here is the story on inverse inference on Groklaw. While some may claim that site is biased as well (against software patents in this case) there is no money involved, just personal and professional conviction - and common sense of course.
--frank[at]unternet.org
I see you get your knowledge of this stuff from movies.
This was jury selection, not the trial. The judge was asking questions, not the attorneys. The juror is not on trial, and is not a witness. He is being asked simple, direct questions by the judge, for the purpose of seeing if there is anything that would disqualify him. The juror obviously knows this, and it is his responsibilty and duty to state any and all disqualifying information.
These things take long enough as it is. There is no reason to drag it out any further by treating every potential juror as some kind of hostile witness who needs to be thoroughy interrogated.
Lawyers (and the court) don't like it when a propspective juror asserts a particular layman's interpretation of legal language, without the expertise and knowledge to include relevant case law and history. They don't like it because it makes it too easy for a party to say "See, Juror X didn't follow the court's instructions on what the law is".
Which is exactly the problem that Samsung has with Mr Hogan's statements on what it takes to be prior art.
But yes, it will keep you out of the jury pool. Alternatively, you could just state that your are in favor of the death penalty for all criminals, including traffic violations.
--Joe
It was a yes or no question. He answered yes.
No, he did not answer "yes." This is from the transcript of the voir dire:
See what he did there? Instead of saying "yes," he answered as if that were the only case. By omitting the other two cases he was involved in, he effectively misrepresented that this was the only case. I'm sorry, but it is extremely foreseeable that being sued by Seagate is a material fact that should have been disclosed. He also lied later in this exchange:
He said months ago that his own experiences relating to patents helped him decide how he should rule, and then he proceeded to "help" other jurors understand based on that information--NOT the judge's instruction. And his statements since have indicated that he was going out of his way to be on this jury so that he could be a part of this big case.
It all looks pretty straight-forward to me. The guy borrowed $25,000 from Seagate in 1991, didn't pay it back, got sued, declared bankruptcy to dodge his financial obligation, and apparently still is buttsore about it. In 2012, he had an ax to grind against Seagate, he hid relevant information to get on the jury so that he could grind it, and then he proceeded to trash Samsung--the currently majority owners of Seagate--to get back at them. And now he's going out to the press and lying about the questions and instructions to not look like the tool he is.
I hope they nail his ass to the wall for juror misconduct and that Samsung gets an actual fair and impartial trial out of it.
Mistrial as a result of a juror's failure to disclose pertinent information is a bit of a long short. The courts do not like to overturn jury decisions.
However to be clear, it was not Samsung or Apple who were asking questions it was the judge. When Mr. Hogan answered questions about his 2008 law suit, but failed to disclose his other law suits, Judge Koh should have asked if there were any other cases, but failed to do so. The judge's failure to probe deeper and Mr. Hogan's failure to fully disclose his past should not be held against Samsung. Samsung doesn't have to prove perjury (which would be difficult as Mr. Hogan's answers were factual, but incomplete), only jury misconduct. My understanding (IANAL) is that the standard for jury misconduct is much lower - innocently answering questions wrongly can result in misconduct. However even if misconduct is shown, Samsung has to prove that the misconduct resulted in a bias. Bias is harder to prove however Mr. Hogan's post-trial statements seem to indicate such bias. He said the trial was the "highlight of my career - my life even" and that he wanted to "send a message to the industry at large that patent infringing is not the right thing to do". Sounds a lot like bias to me.
Samsung has a much stronger case for bias and misconduct involving Mr. Hogan on the claim that he ignored the Judge's instructions to the jury, relied on his own understanding of patent laws, and used his position as jury foreman to convince the jury to rule in favour of Apple. Jurors are not expected to be a clean slate, with NO outside knowledge or experience, however they ARE expected to weigh the evidence presented in the case and the legal issues as explained by the judge. If they have external expertise, they are NOT to use this to persuade or convince other jurors. In post-trial interviews, Mr. Hogan said that he explained to the rest of the jury the standards (his own) for infringement of design patents, functional patents and prior art. This is really the smoking gun. Jurors are supposed to deliberate on the evidence and the points of law as explained in the jury instructions. They are not supposed to conduct their own research (either on evidence or law), experiments, re-enactments, visit the scene of the crime, seek outside evidence, etc. and if they have outside information they MAY NOT share it with other jurors.
If you aren't part of the solution, then there is good money to be made prolonging the problem
In voir dire, failing to answer completely is the same thing as not answering truthfully. It is a lie of omission because he was asked to fully elaborate, not cherry pick the lawsuit(s) that had no bearing on the trial while omitting the one(s) which did.
You are always asked if you were involved in lawsuits against a company. He would have been given a list of companies that Samsung has stock in or owns in part or in whole and if any of them he had 'bad feelings' against any of those companies. It is how I got out of jury duty because one of the companies was a company I did consulting at. You have to disclose that information otherwise you have a conflict of interest.
Only 'flamers' flame!
Trolly troll troll. He ignored prior art because of a notion he invented himself that prior art has to be "interchangeable". He influenced the jury to disregard prior art against Apple's patents because the prior art didn't run on iOS. That he was biased against Samsung is pretty obvious from the fact that he didn't also apply this (completely wrong) notion of "interchangeability" to Samsung's supposedly infringing software. If it has to run on iOS to be prior art, why doesn't it have to run on iOS to be infringing?
"With regards to the Seagate suit and subsequent bankruptcy, Hogan says the court required jurors to disclose any litigation they were involved in within the last 10 years -- which he did. The 1993 Seagate business fell well outside that time range."
That's what this Hogan guys says, but there was no 10 year limit. He made that up. The exact question the judge asked was:
THE COURT: Okay. Welcome back. Please take a seat. We had a few more departures in your absence. Let's continue with the questions. The next question is, have you or a family member or someone very close to you ever been involved in a lawsuit, either as a plaintiff, a defendant, or as a witness?
That's why they have transcripts, you know.
___
If you think big enough, you'll never have to do it.
Apparently subpoenas don't mean much in civil trials. Samsung had subpoenaed the Apple designer responsible for the design of the iPhone and the person named as the designer in at least one of the patents. A key witness for Samsung, Shin Nishibori who formerly worked for Sony, was an internal advocate of a "Sony Style" design as opposed to the "Extrudo" design. Apple eventually settled on the "Sony Style' design that featured rounded corners. Nishibori was expected to testify on the functional aspects of the "Sony Style' design - such as rounded corners so that it would be comfortable in the hand, pocket or when held up to your head, etc. If the design elements are functional, then the design patent is invalid. Unfortunately for Samsung, Mr. Nishibori's status at Apple Computer during the discovery phase went from employee, to long term leave of absence, to non-employee. His lawyer told the court that he would not appear as a witness, citing health issues. However his Twitter account said he was travelling and participating in 10K races in New Zealand and other locations.
If you aren't part of the solution, then there is good money to be made prolonging the problem