Jury Foreman Will Be the Focus in the Next Round of Samsung vs. Apple

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This week, a Federal judge will consider the questions raised by Samsung concerning the jury foreman “concealed information” during the jury selection process and whether there was misconduct in its losing lawsuit.

Apple vs. SamungAfter the August decision, in which a jury found Samsung guilty of multiple counts of patent infringement and ordered Samsung to pay up to the tune of $1 billion, more information on jury foreman Velvin Hogan came to light.

The first issue was that Hogan didn’t disclose during jury selection that he had been sued by Seagate, his former employer, which Samsung said in court papers has a “substantial strategic relationship” with Samsung. The litigation with Seagate led Hogan to file for personal bankruptcy in 1993, something else Hogan did not disclose during jury selection (a process known as voir dire). A PDF of his questioning during the selection process is here.

Also, Hogan appears to have acted as a consultant to the jurors, instructing them on his knowledge of patent laws. In multiple interviews since the decision, Hogan, a Silicon Valley engineer, admitted that he actively guided the jury with his knowledge of patents when he told attorneys during the selection process he would not, and the judge hearing the case specifically said not to do that.

A Tough Sell

Samsung is trying to get the $1 billion patent judgment thrown out, but Samsung “has a hill to climb” in order to get this case to a new trial, said Nasir Pasha, a corporate attorney with Top Floor Legal PC.

“The biggest challenge for arguing misconduct by the foreman for ‘influencing the jury’ during deliberations is showing that his acts were prejudicial,” he said. “It’s a fine line, so the foreman’s past experience is not a per se violation as to wrongfully influencing the jury, but if the foreman applied his personal experience and opined to the other jurors regarding the Apple vs. Samsung case in the context of his personal experiences, it would probably be considered prejudicial.”

One of the jurors said that it was only after the foreman took them through his experiences “did it make the deliberations easier on the jurors.” That, said Pasha, “is a very significant indication that the jury was influenced heavily on the personal experiences of the foreman and may in fact have effected the outcome wrongfully.”

Being a foreman in and of itself has an impact, he notes, since Hogan was given a leadership role, and as a foreman, you would have a better sense of influence on the jury.

The biggest challenge for arguing misconduct by Hogan for concealing information is whether his previous suit creates a bias and whether he did in fact conceal this information, said Pasha.

“The facts we are given suggest that he was asked if he was ever in a lawsuit and he described that he was a party to a lawsuit with a former partner. It’s unclear as to whether he was referring to the lawsuit with this Seagate and that he in fact did not disclose this lawsuit,” he said.

Also, the suit took place 20 years ago, and it’s not known how much of a partnership Samsung and Seagate had at the time, if any. Seagate and Samsung reach a major strategic alliance last year when Seagate bought Samsung’s hard drive business, so that could potentially shoot down the conflict argument there.

So Samsung’s chances of getting the case overturned are weak. And despite it all, Hogan could also face trouble but probably won’t, said Pasha. “I think the judge can issue sanctions for egregious misconduct of jurors, but I do not know the basis or underlying law for this authority,” he said.

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