There was never any doubt that every nook and cranny of the jury's verdict would be dissected and challenged after Samsung suffered a huge loss in its historic infringement trial against Apple in August. That's the norm — losers and winners in nearly every case ask the presiding judge to overturn or modify portions of the jury's verdict. What they don't often do is ask the court to investigate a particular juror for misconduct. But Samsung's lawyers were listening closely to what jury foreman Velvin Hogan said in post-trial interviews and are now asking the court to investigate further and ultimately grant a new trial.
Hogan gave numerous interviews after the trial, including one with The Verge at the end of August. Most of what he had to say during these interviews was standard stuff: how the jury examined every accused product, how he kept the deliberations moving along, how they tried to be fair and objective, and so on. But the more he said, the more we all learned about his approach during the deliberations and his potential influence on the rest of the jury — and Samsung's lawyers clearly saw an opportunity, and perhaps an obligation, to investigate Hogan more closely. And Samsung's also questioning his truthfulness during the selection process (voir dire) that landed him on the jury in the first place.
A jury verdict will not be disturbed unless it is plainly erroneous or manifestly unjust
Hogan's public statements on how he conducted himself during deliberations are certainly interesting, but we have to keep in mind that allegations of juror misconduct are rare, and it's even more uncommon for a court to find that a juror's conduct warrants a formal evidentiary hearing or a new trial. The jury system in the US is a valued and protected institution, and jurors are generally treated with kid gloves and are even required to operate behind closed doors during deliberations. Lawyers make their case in the courtroom and the jury decides however they want. If you go to the jury you have to take your chances — especially in cases like Apple vs. Samsung, where both parties were repeatedly urged to settle by the court.
But Samsung clearly feels that Hogan behaved improperly during jury selection and deliberations, and they have the right to ask for added scrutiny. The underlying law is simple: a jury verdict is presumed valid and and will not be disturbed unless its is "plainly erroneous or manifestly unjust." (That's lawyer-speak for it has to be really bad.) Samsung has an extremely high threshold to overcome, but it's not impossible.
In arguing that Hogan introduced improper outside material to influence the verdict, Samsung focuses on a few interviews in particular. (We've removed the inline citations, but you can find them in the source PDF.)
Finally, Mr. Hogan's self-reported conduct during the jury deliberations presents the "reasonable possibility" that extraneous material "could have affected the verdict." In post-verdict interviews with the media, Mr. Hogan said that he told his fellow jurors an accused device infringes a design patent based on "look and feel" that an accused device infringes a utility patent unless it is "entirely different," that a prior art reference could not be invalidating unless that reference was "interchangeable," and that invalidating prior art must be currently in use. These incorrect and extraneous legal standards had no place in the jury room.
While it's clear from these select quotes that Hogan was wrong in his summary of patent law, it's unclear whether these after-the-fact recollections exactly represent what was said during deliberations or what influence, if any, they might have had on the other jurors or the verdict. Jurors aren't lawyers, after all, and they can't be expected to act like they are. That's why a hugely complex case was reduced to a lengthy list of discrete and short questions on a verdict form, and that's why most patent cases settle before getting to a jury. Insisting a juror got the law wrong is rarely going to be valid grounds for overturning a verdict. It's easy for lawyers to scrutinize a verdict in hindsight, but you need more than "he's not a lawyer" to prove misconduct.
The open-ended question
Samsung's argument that Hogan lied during voir dire questioning to get a seat on the jury might be enough, though. During the initial questioning, Judge Koh asked Hogan, and every other juror, whether "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." The court transcript is clear. The question was straight forward and open-ended: any case, at any time, ever. Hogan disclosed one case he was involved in, but failed to disclose two others. He should have disclosed all three cases — he was involved as a party in three litigation matters and should have said as much so that Apple and Samsung could have inquired further into the topic if they felt the need.
Still, Samsung has to make a connection between what Hogan failed to disclose (even if it was a lie of omission) and a bias on his part that could have influenced the jury verdict. According to US Supreme Court precedent, Samsung will have to prove that Hogan failed to honestly answer a material question and that a correct answer would have provided a valid basis for Samsung to challenge his selection. Was it an honest mistake? Does it even matter?
Feels a little like a game of six degrees of separation
This is where it gets really tricky for Samsung. One of the cases Hogan failed to disclose was a 1993 breach of contract case with his former employer, Seagate. Samsung underscores that as of last year it sold one of its divisions to Seagate, making Samsung the single largest shareholder in Seagate. Further, Samsung indicates that the attorney that sued Hogan on behalf of Seagate is the husband of a lawyer at the firm representing Samsung in its case against Apple. This may all sound like a six degrees of separation exercise, but it ultimately comes down to whether or not Samsung can demonstrate actual bias and that it would have been justified in kicking Hogan from the jury if he had fully disclosed his history with Seagate.
There are a couple of significant hurdles Samsung will have to get over to succeed on this part of its argument. First, the trial record does show that Judge Koh asked Hogan where he had worked and he identified Seagate as one of his previous employers.
The Court: All right. And can you tell us the seven companies you worked for? Digital Equipment, Memorex?
Prospective Juror: Okay. To begin with, I worked for a company that no longer exists called Caylis Memories; then Memorex Corporation; then Storage Technology Corporation in Colorado; Digital Equipment Corporation in Colorado Springs; I worked for Seagate Technology...
If the nature of the particular contract dispute with Seagate is Samsung's main concern than it may still have an argument, but if the real issue is a broader assertion that Hogan has a bias against Seagate — and indirectly Samsung — Judge Koh might just find that Samsung had enough information to decide whether to cut him from the jury from the start. Which brings up the other big hurdle: due diligence.
Did Samsung already know about Hogan's other litigation cases? Should it have known? As with every trial, but especially with a case of this magnitude, jury selection is huge. Each side has its own lawyers and jury consultants that specialize in asking the right questions of prospective jurors and in conducting their own independent research of the jury pool. Legal databases and search engines are as common to these people as a brush is to a painter. Samsung may have a hard time convincing Koh that it didn't do some additional research into each of the jurors — which would have uncovered Hogan's other litigation cases.
He's still talking
For his part, Hogan denied any misconduct or bias in a recent interview with Bloomberg. However, he's still getting some things wrong: asserting that the litigation disclosure question was limited to cases within the last 10 years and that he would have disclosed everything if the question had been "open-ended." Regardless, he's still talking, so we can assume the lawyers are still listening.
It's also far too early to say how Judge Koh will ultimately view this jury misconduct issue — we haven't even seen Apple's response to the allegations yet. Portions of Samsung's story may raise some eyebrows, while others may seem like a stretch. Regardless, it's safe to assume that the court will tread lightly, as jury verdicts are rarely modified, and Koh warned both parties to settle repeatedly. Apple and Samsung chose to go to the jury, and they may have to live with the consquences. Samsung will have to do more than just convince Koh that it has a believable narrative of Hogan's potential bias — it needs to clearly connect the dots between that bias, improper conduct, and a bad outcome. We'll see how Apple responds.