Sunday, August 12, 2012

Judge is tired of Apple-Samsung blame game, orders lawyers to meet in person this Sunday

Judge Lucy Koh, the federal judge presiding over the Apple v. Samsung trial in California, just entered the following order:

"The Court is disappointed by the parties' respective reports regarding their meet and confer efforts on final jury instructions. Lead trial counsel shall meet and confer in person today and file joint and disputed final jury instructions by Monday, August 13, 2012 at 8 a.m."

This order is the court's reaction to statements Apple and Samsung filed late on Friday evening. Apple claimed that "although [it] has tried diligently to advance the process, Samsung has stymied those efforts", and asked the court for guidance. Samsung replied a couple of hours later and -- guess what -- disagreed. It noted that it "has agreed to more than twenty revised instructions proposed by Apple and is continuing to review Apple's remaining disputed instructions for any common ground", while Apple had allegedly "agreed to only two complete instructions drafted solely by Samsung", one of which was a Ninth Circuit model instruction.

I previously reported on the parties' wide-ranging disagreements on what the jury should be told by the court. The parties' strategic objectives and claims in this action are so different that the number of disputed items will always be significant, no matter how long they negotiate. The judge will inevitably have to resolve this through a ruling, but at least they should be able to produce a joint document that indicates the areas of agreement as well as those of disagreement. They now have until Monday morning to get at least this done.

A requirement for the parties' lead counsel to meet in person on a Sunday is relatively unusual, and I'm not sure someone could be sanctioned for not making himself available today. But the judge wants to ensure that this trial stays on schedule. The final jury instructions won't be needed for another week or so, but Judge Koh needs to be given enough time to thjink about, and decide on, the disputed items.

In a separate order (entered a few minutes after the one on jury instructions), Judge Koh told Apple that an "offer or proof regarding evidence of its iPhone and iPad advertisements" was a disguised motion for leave to file a motion for reconsideration, and failed to meet the requirements for that. The history of those video clips is that Samsung's original objection was overruled because the court considered them relevant to the question of "fame" in connection with Apple's trade dress claims, but when Samsung objected again (during trial), the court agreed that those clips were "cumulative" and, according to Apple, "allowed only the indices into evidence". Apple argues that the clips "are not cumulative of the indices, which provide only identifying information such as title, date, and file name, similar to a book's table of contents", but it appears that Judge Koh won't rethink her original decision. There has recently been a lot of talk about material that Samsung wanted -- but wasn't allowed -- to present as evidence. There's also a fair amount of material that Apple was barred from using, but Apple made much less noise about those adverse decisions than Samsung did.

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