UPDATE 11/1/12: A previous version of this story stated that Samsung only learned that juror Velvin Hogan was sued by Seagate Technologies because the lawyer that brought Seagate’s complaint, Michael Grady, is married to a partner at Quinn Emanuel Urquhart & Sullivan. While it’s true that Grady is married to a partner at Quinn Emanuel, that’s not how Samsung learned about Hogan’s dispute with Seagate. According to a October 4 affidavit filed by Quinn Emanuel partner Michael Zeller, the firm uncovered Hogan’s litigation with Seagate through its own research.
Samsung Electronic Co.’s bid to undo the $1 billion jury verdict it lost to Apple Inc. in August took a fascinating turn on Tuesday, when Samsung’s lawyers at Quinn Emanuel Urquhart & Sullivan unsealed allegations that the jury’s camera-loving foreman lied during voir dire. And if the attack on the juror succeeds, it may be thanks to a Quinn Emanuel lawyer who wasn’t even involved in the case.
The dust-up over the jury foreman, 67-year old Velvin Hogan, began on Sept. 21, when Samsung moved for a new trial on juror misconduct grounds. Quinn Emanuel filed that motion under seal, but by combing through the table of authorities, a handful of reporters were able to correctly surmise Samsung’s two-pronged argument. First, Samsung asserts that Hogan’s many post-verdict interviews show that he impermissibly brought outside knowledge into the deliberation process. Second, Samsung argues that Hogan failed to disclose that a company now linked with Samsung, Seagate Technologies, sued him for breach of contract in 1993 for allegedly failing to pay back a $25,000 loan. Hogan also failed to disclose that, after that case, he declared personal bankruptcy.
On Tuesday U.S. District Judge Lucy Koh in San Jose ordered Samsung to unseal the motion and related exhibits. They make for an interesting read. For one thing, the lawyer who sued Hogan on Seagate’s behalf, Michael Grady,is married to a partner in Quinn Emanuel’s Silicon Valley office named Diane Doolittle. What are the odds?
In case you’re wondering, Grady handled the Seagate case while in private practice at a firm called Bergeson & Eliopoulos. According to a Martindale search, he’s now chief in-house counsel for Solectron Corporation. Doolittle is co-chair of Quinn Emanuel’s national trial practice group and hasn’t made an appearance in the Samsung case.
The unsealed motion also helps flesh out why Hogan’s lawsuit with Seagate matters. As Quinn Emanuel explains, Samsung formed a strategic alliance with Seagate in April 2011 and now owns almost 10 percent of the company. “Mr. Hogan’s failure to disclose the Seagate suit raises issues of bias that Samsung should have been allowed to explore in questioning,” Quinn Emanuel argues. The implication is that, had Samsung known about Hogan’s history with Seagate, it might have bounced him just in case he decided to exact revenge on Seagate by siding against its business partner.
In an interview with Bloomberg, Hogan said that he didn’t tell Koh about the Seagate litigation because he’d only been asked about litigation from the last 10 years. “Had I been asked an open-ended question with no time constraint, of course I would’ve disclosed that,” he said. As Quinn Emanuel’s motion points out, the transcript shows that Koh’s phrasing couldn’t have been more open-ended. She asked, “have you or a family member or someone very close to you ever been involved in a lawsuit, either as a plaintiff, a defendant, or as a witness?”
The motion also uses Hogan’s post-verdict media blitz against him. Hogan told journalists that he was “grateful” to be selected for the jury, even though he’s a patent owner himself, and that serving was probably the “high point” of his life. He also said that he hopes the verdict “sends a strong message to the industry at large that patent infringing is not the right thing to do.” In a creative argument, Quinn Emanuel says that these statements are proof that lied during voir dire in order to get on the jury. Appeals courts have held that jurors that are desperate to get on a jury are presumed to be biased.
Hogan also revealed in interviews that he used his own experiences with the patent system to explain concepts like “prior art” to the jury. According to Samsung, Hogan went too far, bringing “incorrect and extraneous legal standards” into the deliberation process.
Samsung’s motion references a string of recent e-mails in which one of Apple’s lawyers at Morrison & Foerster, Jason Bartlett, demanded that Quinn Emanuel provide a sworn declaration explaining “how and when it learned the facts underlying its allegations that the judicial process was tainted.” In a follow-up e-mail, Barlett wrote that “the information is relevant to whether Samsung has preserved arguments concerning juror misconduct.” In response, Quinn Emanuel partner Susan Estrich submitted a sworn declaration stating that Samsung “did not know of Mr. Hogan’s undisclosed litigation against Seagate until after the verdict.”
If Koh decides to grant Samsung a new trial, she’ll be doing so grudgingly. After blasting Apple and Samsung for even taking the case to trial in the first place, she gave them just 25 hours to put on their respective cases. After Quinn Emanuel ran short on time to rebut Apple’s witnesses, Koh went out of her way to say she would shoot down any arguments that Samsung didn’t have enough time to put on its case.
