United States District Court, N.D. California, San Jose Division
ORDER RE: DISPUTED EVIDENTIARY ISSUES RE: DKT. NO.
H. KOH, United States District Judge.
parties' joint pretrial conference statement, Samsung
raises a range of disputed evidentiary issues, which Samsung
numbered 4 through 23. ECF No. 3661 at 30-36. Apple responds
to these disputed evidentiary issues in the joint pretrial
conference statement. See Id. at 23-29.
respect to the following two issues, Samsung shall submit
supplemental briefs of no more than two pages for each of the
two topics below by 5:00 p.m. on May 4, 2018. Apple shall
file responses of no more than two pages per topic by 5:00
p.m. on May 7, 2018.
• Samsung Disputed Evidentiary Issues Nos. 6 and
8: Whether Apple can assert that a jury found any
Samsung phone updated to an alternative design for the
applications menu to infringe the D'305 patent. Samsung
shall identify in its supplemental brief when it first raised
the issue of updated application menus.
• Samsung Disputed Evidentiary Issue No. 17:
Whether Samsung may introduce at trial the prior testimony of
Mr. Bressler (and Dr. Kare) regarding infringement where the
Court relied on that testimony, among other things, as
supporting the need for a new trial. Samsung shall specify
whether it envisions using Mr. Bressler's deposition
testimony or Mr. Bressler's prior trial testimony.
addition, in order to lessen the burden on the parties and
the Court during trial, the Court finds that some of
Samsung's other disputed evidentiary issues are
appropriate for resolution without further briefing.
Accordingly, the Court rules as follows:
Samsung's Disputed Evidentiary Issue No. 4 - Experts Who
appears to dispute whether Apple may call Dr. Singh and Dr.
Balakrishnan, two computer science experts who testified at
the previous two trials in this case about the same two Apple
utility patents at issue in the upcoming trial. Apple did not
disclose these experts on December 15, 2017 at the time Apple
disclosed Dr. Kare, Mr. Ball, and Ms. Davis. Because the
Court only reopened discovery related to the article of
manufacture and related damages issues, see ECF No.
3538 at 3:22-4:1, there was no need for the parties to
disclose experts who would testify as to other issues. Such
experts were covered by the Groundhog Day rule and no
additional discovery was allowed related to them in any
event. Apple will be allowed to call Dr. Singh and Dr.
Balakrishnan, both of whom were previously disclosed,
previously testified, and whose testimony is governed by the
Groundhog Day rule.
Samsung's Disputed Evidentiary Issues Nos. 5, 7 - White
Court understands Samsung to be raising the white phone issue
for the purpose of preserving the issue for appeal. The Court
already ruled in its order on the parties'
Daubert motions that Samsung “has waived its
argument that the totals in JX1500 include sales of
noninfringing white phones.” ECF No. 3645 at 46.
Samsung will not be allowed to present evidence related to
white phones at trial.
Samsung's Disputed Evidentiary Issue No. 9 - Galaxy Note
7 Batteries, Bribery
seeks to prevent Apple from mentioning or seeking to
introduce into evidence any negative reporting “related
to Samsung or its employees that is outside the scope of the
specific issues to be decided by the jury, including
regarding the batteries of Galaxy Note 7 devices or bribery
charges brought against a former Samsung executive.”
ECF No. 3661 at 30-31. Information related to the Galaxy Note
7, which is not at issue in the instant retrial, as well as
bribery charges against a former Samsung executive are not
relevant to the instant retrial. The Court will exclude such
evidence under Federal Rule of Evidence 403 because its
probative value would be substantially outweighed by a danger
of unfair prejudice to Samsung and wasting time.
Samsung's Disputed Evidentiary Issue No. 10 - Dr.
Kare's “Marketing Opinions”
Daubert motions, Samsung sought to preclude Dr. Kare
and Mr. Ball from offering opinions related to consumer
behavior or marketing because such areas were outside Dr.
Kare's area of expertise. The Court noted in its
Daubert order that “Samsung does not identify
any particular part of either Dr. Kare's reports that
constitutes a marketing opinion.” ECF No. 3645 at 23.
Samsung now points out that the Court inadvertently