Oracle America, Inc. v. Google Inc.

Filing 994

PROPOSED CHARGE TO THE JURY AND SPECIAL VERDICT FORM. Signed by Judge Alsup on April 26, 2012. (Attachments: #1 Draft Special Verdict Form)(whalc1, COURT STAFF) (Filed on 4/26/2012)

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1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 8 ORACLE AMERICA, INC., No. C 10-03561 WHA 9 11 For the Northern District of California United States District Court 10 12 13 Plaintiff, v. GOOGLE INC., Defendant. / 14 COURT’S PROPOSED CHARGE TO THE JURY 15 AND SPECIAL VERDICT FORM 16 Appended hereto are copies of the draft charge to the jury and special verdict form given 17 to both sides on April 26, 2012, for discussion with the Court at the charging conference on 18 April 27, 2012, at 2:15 p.m. Although counsel have filed numerous waves of overlapping and 19 even contradictory proposed instructions in the past, the proposed charge is based on the way 20 the trial has actually developed, taking into account issues that have emerged and receded and 21 concessions by counsel. Subject to the upcoming charging conference, the Court believes the 22 proposed charge adequately and fairly covers all issues actually still in play. Therefore, in order 23 to give the district judge a fair opportunity to correct any error as matters now stand, counsel 24 must, at the charging conference, bring to the judge’s attention any addition, subtraction or 25 modification or other objections or proposal for the jury instructions. Otherwise, all such points 26 shall be deemed waived and it will not be sufficient merely to argue after the verdict that a 27 proposed instruction filed earlier in the proceedings somehow was not adopted. Rather, any 28 such proposal that counsel still cares about must be raised anew at the charging conference. 1 The charging conference shall be conducted so as to give full and fair opportunity for counsel to 2 raise any and all objections and proposals. 3 4 5 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 11 For the Northern District of California United States District Court 10 ORACLE AMERICA, INC., 12 13 14 15 16 No. C 10-03561 WHA Plaintiff, v. GOOGLE INC., Defendant. / 17 18 19 20 21 [DRAFT] FINAL CHARGE TO THE JURY (PHASE ONE) AND SPECIAL VERDICT FORM FOR CHARGING CONFERENCE ON APRIL 27, 2012, AT 2:15 P.M. 22 23 24 25 26 27 28 3 1 1. 2 Members of the jury, it is now time for me to give you the final 3 instructions, including instructions on the law that governs this case. A copy of 4 these instructions will be available in the jury room for you to consult as 5 necessary. the side with the burden of proof has carried that burden, applying the elements of 8 proof required by the law, elements I will provide you in a moment. In following 9 my instructions, you must follow all of them and not single out some and ignore 10 others. You must not read into these instructions or into anything the Court may 11 For the Northern District of California It is your duty to find the facts from all the evidence and to decide whether 7 United States District Court 6 have said or done as suggesting what verdict you should return — that is a matter 12 entirely up to you. 13 14 15 2. The evidence from which you are to decide what the facts are consists of: 1. 16 The sworn testimony of witnesses, whether presented in person or by depositions; 17 2. The exhibits received into evidence; and 18 3. Any stipulated facts. 19 20 21 22 3. Certain things, however, are not evidence, and you may not consider them in deciding what the facts are. I will list them for you: 1. Arguments, statements and objections by lawyers are not 23 evidence. The lawyers are not witnesses. What they have 24 said in their opening statements, closing arguments and at 25 other times is intended to help you interpret the evidence, 26 but it is not evidence itself. If the facts as you remember 27 them differ from the way the lawyers have stated them, 28 your memory of them controls. 4 1 2. A suggestion in a question by counsel or the Court is not 2 evidence unless it is adopted by the answer. A question by 3 itself is not evidence. Consider it only to the extent it is 4 adopted by the answer. 5 3. Testimony or exhibits that have been excluded or stricken, 6 or that you have been instructed to disregard, are not 7 evidence and must not be considered. In addition, some 8 testimony and exhibits have been received only for a 9 limited purpose; where I have given a limiting instruction, 11 For the Northern District of California United States District Court 10 12 13 14 you must follow it. 4. Anything you may have seen or heard when the Court was not in session is not evidence. 4. Evidence may be direct or circumstantial. Direct evidence is direct proof 15 of a fact, such as testimony by a witness about what that witness personally saw 16 or heard, or did. Circumstantial evidence is proof of one or more facts from 17 which you could find another fact. By way of example, if you wake up in the 18 morning and see that the sidewalk is wet, you may find from that fact that it 19 rained during the night. However, other evidence, such as a turned-on garden 20 hose, may explain the presence of water on the sidewalk. Therefore, before you 21 decide that a fact has been proved by circumstantial evidence, you must consider 22 all the evidence in the light of reason, experience and common sense. You should 23 consider both kinds of evidence. The law makes no distinction between the 24 weight to be given to either direct or circumstantial evidence. It is for you to 25 decide how much weight to give to any evidence. 26 27 28 5. In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a 5 1 witness says, or part of it or none of it. In considering the testimony of any 2 witness, you may take into account: 3 1. 4 The opportunity and ability of the witness to see or hear or know the things testified to; 5 2. The witness’ memory; 6 3. The witness’ manner while testifying; 7 4. The witness’ interest in the outcome of the case and any 8 9 bias or prejudice; 5. 11 For the Northern District of California United States District Court 10 testimony; 6. 12 13 14 15 Whether other evidence contradicted the witness’ The reasonableness of the witness’ testimony in light of all the evidence; and 7. Any other factors that bear on believability. 6. You are not required to decide any issue according to the testimony of a 16 number of witnesses, which does not convince you, as against the testimony of a 17 smaller number or other evidence, which is more convincing to you. The 18 testimony of one witness worthy of belief is sufficient to prove any fact. This 19 does not mean that you are free to disregard the testimony of any witness merely 20 from caprice or prejudice, or from a desire to favor either side. It does mean that 21 you must not decide anything by simply counting the number of witnesses who 22 have testified on the opposing sides. The test is not the number of witnesses but 23 the convincing force of the evidence. You should base your decision on all of the 24 evidence regardless of which party presented it. 25 7. 26 27 28 6 1 A witness may be discredited or impeached by contradictory evidence or 2 by evidence that, at some other time, the witness has said or done something or 3 has failed to say or do something that is inconsistent with the witness’ present 4 testimony. If you believe any witness has been impeached and thus discredited, 5 you may give the testimony of that witness such credibility, if any, you think it 6 deserves. 7 8 9 8. Discrepancies in a witness’ testimony or between a witness’ testimony and that of other witnesses do not necessarily mean that such witness should be discredited. Inability to recall and innocent misrecollection are common. Two 11 For the Northern District of California United States District Court 10 persons witnessing an incident or a transaction sometimes will see or hear it 12 differently. Whether a discrepancy pertains to an important matter or only to 13 something trivial should be considered by you. 14 However, a witness willfully false in one part of his or her testimony is to 15 be distrusted in others. You may reject the entire testimony of a witness who 16 willfully has testified falsely on a material point, unless, from all the evidence, 17 you believe that the probability of truth favors his or her testimony in other 18 particulars. 19 20 21 9. In determining what inferences to draw from evidence you may consider, among other things, a party’s failure to explain or deny such evidence. 22 23 10. Certain charts and summaries have been received into evidence. Charts 24 and summaries are only as good as the underlying supporting material. You 25 should, therefore, give them only such weight as you think the underlying 26 material deserves. 27 11. 28 7 1 Now I will address the burden of proof. In this case, the preponderance of 2 the evidence standard applies on all sides, so whoever has the burden of proof on 3 an issue must carry that issue by a preponderance of the evidence. When a party 4 has the burden of proof on any claim by a preponderance of the evidence, it 5 means you must be persuaded by the evidence that the claim is more probably 6 true than not true. To put it differently, if you were to put the evidence favoring a 7 plaintiff and the evidence favoring a defendant on opposite sides of a scale, the 8 party with the burden of proof on the issue would have to make the scale tip 9 somewhat toward its side. If the party fails to meet this burden, then the party with the burden of proof loses on the issue. Preponderance of the evidence 11 For the Northern District of California United States District Court 10 basically means “more likely than not.” 12 12. 13 On any claim, if you find that plaintiff carried its burden of proof as to 14 each element of a particular claim, your verdict should be for plaintiff on that 15 claim. If you find that plaintiff did not carry its burden of proof as to each 16 element, you must find against plaintiff on that claim. This same principle also 17 applies to defendants on claims for which it has the burden of proof. 18 13. 19 I will now turn to the law that applies to this case. Oracle seeks damages 20 against Google for alleged copyright infringement. Google denies infringing any 21 such copyright material and asserts that any use by it of copyrighted material was 22 protected, among other things, by a defense called “fair use,” which will be 23 explained below. To the extent that you find liability in this phase, we will 24 consider the extent of damages in the third phase of the trial. Now, I will give 25 you an overview of copyright law in general. Then I will give you a summary of 26 the claims and defenses at issue in this case. After that I will give you a further 27 statement of the copyright law to help you in resolving the claims and defenses. 28 14. 8 1 By federal statute, copyright is an exclusive right to copy a work, a right 2 that lasts for 95 years from the date of publication. This right to copy includes the 3 exclusive rights to: 4 1. 5 6 copyrighted work or to license others to do so; 2. 7 8 For the Northern District of California United States District Court 11 Recast, transform, adapt the work, that is, prepare derivative works based upon the copyrighted work; 3. 9 10 Make additional copies or otherwise reproduce the Distribute copies of the copyrighted work to the public by sale; and 4. Display publicly a copyrighted work. It is the owner of a copyright who may exercise these exclusive rights to 12 copy. Even though someone may acquire a copy of the copyrighted work, such as 13 a book from a bookstore, for example, the copyright owner retains rights to 14 control the making of copies of the work. The term “owner” includes the author 15 of the work or someone who has purchased the copyright. An owner may sue for 16 copyright infringement. 17 18 15. Copyright automatically exists in a work the moment it is fixed in any 19 tangible medium of expression, such as putting pen to paper. The owner of the 20 copyright may then register the copyright by delivering to the Copyright Office of 21 the Library of Congress a copy of the copyrighted work and applying via a 22 registration form, after which the Copyright Office will either allow or disallow 23 the application. By way of examples, copyrighted works can include 24 1. 25 Literary works like books, periodicals and, of particular interest here, operating manuals; 26 2. Musical works; 27 3. Photographs and drawings; 28 4. Motion pictures; 9 1 2 5. Computer programs, also of particular interest here. Only that part of the works comprised of original works of authorship 3 fixed in any tangible medium of expression from which it can be perceived, 4 reproduced, or otherwise communicated, either directly or with the aid of a 5 machine or device can be protected by copyright. To take examples, words can 6 be fixed on paper, and a computer program can be fixed in the memory of a 7 mobile phone. 8 9 16. As stated, the owner of a copyright has the exclusive right to make copies of all of part of the copyrighted work. If someone else does so without consent 11 For the Northern District of California United States District Court 10 from the owner, then there is infringement (except in certain circumstances I will 12 describe below). 13 14 17. The copyright confers ownership over particular the expression of ideas in 15 a work but it never confers ownership over ideas themselves. For example, if a 16 book describes a strategy for playing a card game, the copyright prevents anyone 17 (but the owner) from duplicating the book itself but everyone is still free to read 18 the book and to use the strategy, for the idea set forth in the book, that is the 19 strategy, is not protected by copyright. And, everyone is entitled to write their 20 own book about the same game and the same strategy so long as they do not 21 plagiarize the earlier book. 22 Another statutory limitation on the scope of a copyright is that copyright 23 never protects any procedure, process, system, method of operation, concept, 24 principle, or discovery. Possibly such things can be claimed under the patent 25 system or by trade secret laws but they may not be claimed by copyright. Again, 26 the main point is that the copyright protects the particular expression composed 27 by the author. 28 18. 10 1 I will now turn to the claims in this case. Oracle claims Google has 2 infringed its copyrights in two registered works, namely, “Java Standard Edition, 3 Version 1.4” (TX 464) and “Java 2 Standard Edition, Version 5.0” (TX 475), and 4 the application leading to those registrations appear at TX 3529 and 3530. 5 The registered copyrights generally cover the compilable code and documentation 6 for the Java API packages. The main issues you must decide concern these two 7 general types of work contained therein, namely “compilable code” and 8 “documentation.” As used in these instructions and the Special Verdict Form, the 9 term API “compilable code” refers to method and class names, declarations, definitions, organization, parameters, and implementation (as well as the resulting 11 For the Northern District of California United States District Court 10 object code) implementing the various API functions. In this connection, the 12 source code that implements the function of the API is called the 13 “implementation.” The “compilable code” does not include the English-language 14 comments you have heard about. Even though such comments are embedded in 15 the software program, these English-language comments do not get compiled and 16 are not used by the computer to perform API functions. Instead, the English- 17 language comments are part of what I will call the API “documentation,” a term 18 that encompasses all of the English-language comments. The term “API 19 documentation” includes all content — including English-language comments as 20 well as method and class names, declarations, definitions, organization, and 21 parameters — in the reference document for programmers. Again, please 22 remember that although these English-language comments appear in the software 23 program listing, they can be extracted for handy reference in the guides made 24 available to programmers. So, I will be referring to the “API compilable code” 25 and the “API documentation.” 26 19. 27 The copyrighted Java platform has more than 37 API packages and so 28 does the accused Android platform. As for the 37 API packages that overlap, 11 1 Google agrees that it uses the same names and declarations but contends that its 2 line-by-line implementations are different (with the exception of the rangeCheck 3 lines), a contention not disputed by Oracle. Instead, Oracle contends that Google 4 copied the structure, sequence and organization of the compilable code for the 37 5 API packages, individually as 37 separate packages and collectively as a single 6 group. Google agrees that the structure, sequence and organization of the 7 37 accused API packages on Android is substantially the same as the structure, 8 sequence and organization of the corresponding 37 API packages in Java. Google 9 states that the elements it has used are either not copyrightable in the first place or its use was protected by a statutory rule permitting the public, including 11 For the Northern District of California United States District Court 10 competitors, to make “fair use” of copyrighted works. It is my job to decide 12 whether or not the copyrights on the computer programs do or do not extend to 13 protect the structure, sequence and organization of the code of the programs. I 14 will not be able to decide this question until after your verdict. For purposes of 15 your deliberations, you must assume that the copyrights do cover the structure, 16 sequence and organization of the code. 17 18 20. I have, however, decided that the copyrights do not cover the names given 19 to files or packages because under the law, names cannot be copyrighted. This 20 includes the name “java” as well. Although “Java” has been registered as a 21 trademark, the name java cannot be copyrighted, nor can any other name, whether 22 one or two words or longer in length. Except for the names, you must take for 23 granted that the structure, sequence, and organization of the programs is protected 24 under copyright law. 25 21. 26 With respect to the API documentation, Oracle contends Google copied 27 the English-language comments in the copyrighted Java work and moved them 28 over to the documentation for the 37 API packages in Android. Google agrees 12 1 that there are similarities in the language but, pointing to differences as well, 2 denies that its documentation is a copy of the Java documentation. Google further 3 asserts that the similarities are largely the result of the fact that each API carries 4 out the same functions in both systems. Google again asserts the statutory 5 defense of fair use. For the API documentation issue, you do not need to be 6 concerned with structure, sequence, and organization, a concept that applies only 7 to the compilable code part of the case. 8 9 22. The issues just discussed center on the API packages. Apart from the API issues, I will now describe a shorter list of specific items that Oracle contends 11 For the Northern District of California United States District Court 10 were copied verbatim by Google. Specifically, Oracle contends that Google 12 copied verbatim certain lines of compilable code, namely the rangeCheck method 13 in two files, other source code as compiled into object code in seven “Impl.Java” 14 files and one other file and, finally, certain English-language comments in two 15 other files. Google responds that any verbatim copying by it was excusable under 16 the law as “de minimis.” For purposes of this group of infringement contentions, 17 the structure, sequence and organization is irrelevant and the comparison must be 18 made to the work as a whole as defined in a moment. 19 20 23. Now, I will turn to the more detailed law. In order to prove infringement, 21 Oracle must prove by a preponderance of the evidence that Oracle’s work is 22 original and that it is the owner of the part of the work allegedly copied. 23 24. 24 NOTE: COUNSEL SHALL PROVIDE AN AGREED-ON PARAGRAPH RE 25 26 27 28 OWNERSHIP. 25. To prove infringement, Oracle must also prove that Google copied all or a protected part of a copyrighted work owned by it. There are two ways to prove 13 1 copying. One is by proof of direct copying, as where the copyrighted work itself 2 is used to duplicate or restate the same words and symbols on a fresh page. 3 The second way is via circumstantial evidence by showing the accused 4 had access to the copyrighted passages in question and that there are substantial 5 similarities or, in certain instances, virtual identity between copyrighted work and 6 the accused work. The virtual identity test is used when the subject under 7 consideration is a narrow one and we would expect certain terms and phrases to 8 be used. This is in contrast to a literary work in which there will be a broad range 9 of creativity, in which case it is necessary only to prove substantial similarity. In this trial, you should use the substantial similarity test for all such comparison 11 For the Northern District of California United States District Court 10 except for those involving the API documentation, in which case you should use 12 the virtual identity test. This is because the documentation for the API packages 13 describe narrow technical functions and it is to be expected that the same words 14 and phrases would be more likely used. 15 16 17 26. NOTE: COUNSEL SHALL PROVIDE AN AGREED-ON PARAGRAPH RE THE OBJECTIVE-SUBJECTIVE TEST. 18 19 27. Copying that is considered “de minimis” is not actionable. A copying is 20 “de minimis” only if it is so meager and fragmentary that compared to the work as 21 a whole the average audience would not recognize the appropriation. You must 22 consider the qualitative and quantitative significance of the copied portions in 23 relation to the work as a whole. The burden is on Oracle to prove that the copied 24 material was not de minimis. 25 26 28. Now, I will explain the law governing Google’s defense based on the 27 statutory right of the public to make “fair use” of copyrighted works. The public 28 may use any copyrighted work in a reasonable way under the circumstances 14 1 without the consent of the copyright owner if it would advance the public interest. 2 Such use of a copyrighted work is called a “fair use.” The owner of a copyright 3 cannot prevent others from making a fair use of the owner’s copyrighted work. 4 5 6 Google has the burden of proving this defense by a preponderance of the evidence. In determining whether the use made of the work was fair, you should 7 consider the following factors: 8 1. 9 such use is of a commercial nature or is for nonprofit 10 educational purposes; 11 For the Northern District of California United States District Court The purpose and character of the use, including whether 2. The nature of the copyrighted work; 12 3. The amount and substantiality of the portion used in 13 14 15 relation to the copyrighted work as a whole; and 4. The effect of the use upon the potential market for or value of the copyrighted work. 16 If you find that Google proved by a preponderance of the evidence that 17 Google made a fair use of Oracle’s work, your verdict should be for Google on 18 that question in the Special Verdict Form. 19 29. 20 With respect to the infringement issues concerning the rangeCheck and 21 other similar files, Google admits that the accused lines of code and comments 22 came from the copyrighted material but contends that the amounts involved were 23 so negligible as to be de minimis and thus should be excused. 24 25 30. In your deliberations, you will need to make certain comparisons to the 26 “work as a whole.” It is my job to isolate and identify for you the “work as a 27 whole.” You must take my identification as controlling if and when this comes 28 up in your deliberations. This issue arises when (1) comparing Oracle’s work and 15 1 Android’s work for similarity under both substantial similarity and virtual identity 2 standards, (2) deciding whether Google copied only a de minimis amount of 3 Oracle’s work, and (3) evaluating the third factor of fair use: the amount and 4 substantiality of the portion used in relation to the copyrighted work as a whole. 5 Although you have seen that the copyright registrations cover a large 6 volume of work, the entire registered work is not the work as a whole for these 7 purposes. This may seem odd to you, so let me give an example. An entire 8 magazine issue may be copyrighted but a specific article advertisement or 9 photograph may be the relevant work as a whole depending on what was 11 For the Northern District of California United States District Court 10 allegedly copied. For purposes of this case, I have determined that the “work as a whole” 12 means the following: For purposes of Question No. 1 in the Special Verdict 13 Form, the “work as a whole” constitutes all of the compilable code associated 14 with all of the API packages (not just the 37) in the registered work. This 15 excludes the virtual machine. For purposes of the first two subquestions of 16 Question No. 2 in the Special Verdict Form, the “work as a whole” is, for each 17 API package, the compilable code for that individual API package. For purposes 18 of the last two subquestions of Question No. 2 in the Special Verdict Form, the 19 “work as a whole” means the contents (including name, declaration and 20 English-language comments) for that individual API package. For purposes of 21 Question No. 3, the “work as a whole” is the compilable code for the individual 22 file except for the last two files listed in Question No. 3, in which case the “work 23 as a whole” is the compilable code and all the English-language comments in the 24 same file. 25 31. 26 Google had no right to copy any elements of the Java platform protected 27 by copyright unless it had a written license to do so from Sun or Oracle or had a 28 written sub-license to do so from a third party who had a license from Sun or 16 1 Oracle conferring the right to grant such sub-licenses. The burden is on Google 2 to prove it had any such license or sublicense rights. Put differently, if Google 3 claims a license from a third party, Google has the burden to prove that the third 4 party itself had the proper right and authority from Sun or Oracle as to any of the 5 copyrights owned by Sun or Oracle and used by Google, for Google could acquire 6 from the third party no greater right than the third party had in the first place. 7 Similarly, if Google contends that Oracle or Sun had dedicated elements protected 8 by copyright to the public domain for free and open use, the burden is on Google 9 to prove such a public dedication. 32. 11 For the Northern District of California United States District Court 10 If you find Google liable on any copyright claim, then Oracle further 12 contends that Google should be found liable for vicarious liability. If you find 13 that any third-party mobile device manufacturers or end-users infringed Oracle’s 14 copyright in the works at issue, you may consider the Oracle’s claim that Google 15 vicariously infringed that copyright. Oracle has the burden of proving each of the 16 following by a preponderance of the evidence: 17 1. 18 19 Google profited directly from the infringing activity of third-party mobile device manufacturers or end-users; 2. Google had the right and ability to supervise the infringing 20 activity of third-party mobile device manufacturers or end- 21 users 22 If you find that Oracle proved each of these elements, your verdict should be for 23 Oracle if you also find that third-party mobile device manufacturers or end-users 24 infringed Oracle’s copyright. If, on the other hand, Oracle has failed to prove any 25 of these elements, your verdict should be for Google. 26 27 28 33. If you find Google liable on any copyright claim, then Oracle also further contends that Oracle should be found liable for contributing liability. A 17 1 defendant may be liable for copyright infringement engaged in by another if it 2 knew or had reason to know of the infringing activity and intentionally induces 3 that infringing activity. 4 If you find that third-party mobile device manufacturers or end-users 5 infringed Oracle’s copyright in the works at issue, you may proceed to consider 6 Oracle’s claim that Google contributorily infringed that copyright. To prove 7 copyright infringement, Oracle must prove both of the following elements by a 8 preponderance of the evidence: 9 1. Google knew or had reason to known of the infringing activity of third-party mobile device manufacturers or end- 11 For the Northern District of California United States District Court 10 users ; and 12 2. 13 Google intentionally induced third-party mobile device manufacturers’ or end-users’ infringing activity. 14 If you find that third-party mobile device manufacturers or end-users infringed 15 Oracle’s copyright and you also find that Oracle has proved both of these 16 elements, your verdict should be for Oracle. If, on the other hand, Oracle has 17 failed to prove either or both of these elements, your verdict should be for 18 Google. 19 20 34. When you begin your deliberations, you should elect one member of the 21 jury as your foreperson. That person will preside over the deliberations and speak 22 for you here in court. I recommend that you select a foreperson who will be good 23 at leading a fair and balanced discussion of the evidence and the issues. 24 You will then discuss the case with your fellow jurors to reach agreement 25 if you can do so. Your verdict as to each claim and as to damages, if any, must be 26 unanimous. Each of you must decide the case for yourself, but you should do so 27 only after you have considered all of the evidence, discussed it fully with the 28 other jurors, and listened to the views of your fellow jurors. 18 1 Do not be afraid to change your opinion if the discussion persuades you 2 that you should. Do not come to a decision simply because other jurors think it is 3 right. It is important that you attempt to reach a unanimous verdict but, of course, 4 only if each of you can do so after having made your own conscientious decision. 5 Do not change an honest belief about the weight and effect of the evidence simply 6 to reach a verdict. 7 I will give you a special verdict form to guide your deliberations. 8 9 35. Some of you have taken notes during the trial. Whether or not you took notes, you should rely on your own memory of what was said. Notes are only to 11 For the Northern District of California United States District Court 10 assist your memory. You should not be overly influenced by the notes. When 12 you go into the jury room, the Clerk will bring in to you the trial exhibits received 13 into evidence to be available for your deliberations. The Clerk will also provide 14 you with an index to them. 15 36. 16 As I noted before the trial began, when you retire to the jury room to 17 deliberate, you will have with you the following things: 18 1. All of the exhibits received into evidence; 19 2. An index of the exhibits if the lawyers are able to stipulate 20 as to its form; 21 3. A work copy of these jury instructions for each of you; 22 4. A work copy of the verdict form for each of you; and 23 5. An official verdict form. 24 When you recess at the end of a day, please place your work materials in 25 the brown envelope provided and cover up any easels with your work notes so 26 that if my staff needs to go into the jury room, they will not even inadvertently see 27 any of your work in progress. 28 37. 19 1 A United States Marshal will be outside the jury-room door during your 2 deliberations. If it becomes necessary during your deliberations to communicate 3 with me, you may send a note through the marshal, signed by your foreperson or 4 by one or more members of the jury. No member of the jury should ever attempt 5 to communicate with me except by a signed writing, and I will respond to the jury 6 concerning the case only in writing or here in open court. If you send out a 7 question, I will consult with the lawyers before answering it, which may take 8 some time. You may continue your deliberations while waiting for the answer to 9 any question. Remember that you are not to tell anyone — including me — how the jury stands, numerically or otherwise, until after you have reached a 11 For the Northern District of California United States District Court 10 unanimous verdict or have been discharged. Do not disclose any vote count in 12 any note to the Court. 13 14 38. Now that you are going to begin your deliberations, however, you must 15 stay until 4:00 P.M. You may, of course, take a reasonable lunch break. The 16 Court recommends that you continue to start your deliberations by 8:00 A.M. If 17 you do not reach a verdict by the end of today, then you will resume your 18 deliberations tomorrow and thereafter. 19 It is very important that you let the Clerk know in advance what hours you 20 will be deliberating so that the lawyers may be present in the courthouse at any 21 time the jury is deliberating. 22 23 39. You may only deliberate when all of you are together. This means, for 24 instance, that in the mornings before everyone has arrived or when someone steps 25 out of the jury room to go to the restroom, you may not discuss the case. As well, 26 the admonition that you are not to speak to anyone outside the jury room about 27 this case still applies during your deliberation. 28 40. 20 1 After you have reached a unanimous agreement on a verdict, your 2 foreperson will fill in, date and sign the verdict form and advise the Court that 3 you have reached a verdict. The foreperson should hold onto the filled-in verdict 4 form and bring it into the courtroom when the jury returns the verdict. Thank you 5 for your careful attention. The case is now in your hands. You may now retire to 6 the jury room and begin your deliberations. 7 8 9 Dated: [ONLY SIGN AND DATE AFTER INSTRUCTION READ TO THE JURY] WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21

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