Samsung Attorney’s Leak Takes Center Stage

     SAN JOSE, Calif. (CN) – Apple’s VP for worldwide marketing touted the iPhone as an “icon,” but the real courtroom drama again swirled around Samsung attorney John Quinn’s leaking of barred evidence to the media.
     The latest controversy in the Apple-Samsung federal patent trial took center stage right out of the gate Friday morning, with Apple’s lawyers pressing U.S. District Judge Lucy Koh for sanctions against Quinn and his firm Quinn Emanuel Urquhart and Sullivan in the form of summary judgment.
     Quinn admitted leaking a statement from a “Samsung executive” and evidence supposedly showing that Sony designers inspired the iPhone Tuesday after Koh rejected his request to allow the evidence, prompting a temper tantrum from Quinn and the leak.
     In his court-ordered admission, Quinn said he acted on “multiple requests from members of the media seeking further explanation — including requesting the demonstrative exhibits at issue” and “did not violate any court order or any legal or ethical standards.”
     In fact, Quinn claims, his media release is consistent with Koh’s statements that “‘[t]he United States district court is a public institution, and the workings of litigation must be open to public view.'”
     According to Quinn, he acted to level the playing field — to protect Samsung’s reputation from the media “reporting in salacious detail Apple’s allegations of Samsung’s supposed ‘copying.'”
     “Moreover, Apple’s baseless and public assertions that Samsung’s transmission to the media of public information constituted contempt of court and that these actions were intended to pollute the jury were themselves glaring falsehoods, highlighting why Samsung has every right to defend itself in the public domain from unfair and malicious attacks,” Quinn said in his declaration.
     He calls his actions “lawful, ethical and fully consistent with the relevant California Rules of Professional Responsibility” — a statement Apple attorney William Lee contradicts in Apple’s response.
     “Samsung apparently believes that it is above the law, and that it — not this court — should decide what evidence the jury should see,” Lee said “Yesterday, the court once again rejected Samsung’s attempt to introduce evidence related to a defense that was not timely disclosed to Apple.
     “Undaunted, and apparently unwilling to accept the court’s ruling, Samsung chose self-help to get its excluded evidence before the jury: it issued a ‘statement’ attaching a set of excluded demonstrative slides and proclaiming that ‘[f]undamental fairness’ required the jury to consider them,” Lee continued.
     Samsung’s disregard of the rules of practice and Koh’s orders have become the company’s standard M.O. according to Lee, who pointed out that Samsung lawyers have been sanctioned four times already for discovery abuses and most recently for destroying evidence.
     “Litigation misconduct is apparently a part of Samsung’s litigation strategy — and limited sanctions have not deterred Samsung from such misconduct,” Lee said. “Now, with so much at stake, Samsung has taken the calculated risk that any sanctions arising from its attempt to influence the jury with its excluded arguments are a price it is willing to pay. Indeed, Samsung may have determined that its gambit could lead to a mistrial — which it apparently would welcome.”
     Apple’s lawyer declined to move for a mistrial, saying it would “only reward Samsung’s misconduct.”
     “The proper remedy for Samsung’s misconduct is judgment that Apple’s asserted phone design patents are valid and infringed … the proper remedy is to enter judgment against Samsung on those same patents,” Lee said.
     Judge Koh declined Apple’s suggestion, telling both sides she would revisit Quinn’s possible misconduct after the trial. However, she said the leak seemed like “a willful attempt to propagate excluded evidence” to influence the jury and — over the objections of both Apple and Samsung — polled the jury one by one in open court to see if they’d seen anything in the press, and if they could still be fair and impartial.
     Only one juror admitted to reading “headlines on the internet about the kitchen table” — a reference to testimony on Tuesday that Apple’s design ideas come from 12-15 people sitting around a kitchen table — but that he didn’t read the story and wasn’t influenced. Koh said she was satisfied enough with the jury’s answers to proceed with the trial.
     The judge also handed Samsung a definitive defeat by upholding magistrate judge Paul Grewal’s sanctions for discovery abuses relating to the company’s refusal to hand over source code for the products Apple claims it copied.
     “This court defers to the magistrate judge’s ultimate judgment that even if Samsung had produced some source code before the court ordered deadline, Samsung was hardly in compliance with Judge Grewal’s Order to produce all source code … by December 31, 2011. Even crediting Samsung’s partial compliance of source code production, it was not clearly erroneous for Judge Grewal to find that Apple was still prejudiced by Samsung’s failure to fully comply with Judge Grewal’s order to produce all source code,” Koh wrote.
     Koh also upheld Grewal’s decision to exclude some of Samsung’s expert testimony based on evidence and theories not disclosed in discovery.
     “[A]lthough Samsung may have disclosed in discovery some of the references and documents upon which its experts relied, Samsung also failed to supplement its answers to contention interrogatories to disclose to Apple some of the bases of its invalidity, infringement, and lack of distinctiveness theories until after the close of discovery. The record in this case is enormous, and the discovery burdens onerous on both parties. Judge Grewal did not clearly err in finding that Samsung’s disclosure of prior art references, witnesses, and documents in discovery was not sufficient to ‘make known’ to Apple, Samsung’s theories of invalidity and infringement,” Koh wrote.
     The judge also reaffirmed — again — that any evidence relating to Sony influencing Apple’s design decisions is inadmissible, leaving wide open the possibility of further sanctions of Samsung’s legal team for Tuesday’s media leak.

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