Polaris PowerLED Technologies, LLC v. Samsung Electronics America, Inc.
Filing
351
MEMORANDUM OPINION AND ORDER. Signed by District Judge Rodney Gilstrap on 6/14/20019. (nkl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
POLARIS POWERLED
TECHNOLOGIES, LLC,
Plaintiff,
v.
SAMSUNG ELECTRONICS AMERICA,
INC., SAMSUNG ELECTRONICS CO.,
LTD., SAMSUNG DISPLAY CO., LTD.,
Defendants.
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CIVIL ACTION NO. 2:17-CV-00715-JRG
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff Polaris PowerLED Technologies LLC’s (“Polaris”) objection
to the preadmission of exhibit DX 63, proffered by Defendants Samsung Electronics America,
Inc., Samsung Electronics Co., Ltd., and Samsung Display Co., Ltd. (collectively, “Samsung”).
(See Dkt. No. 335.) Having considered the parties’ arguments and for the reasons set forth herein,
the Court overrules Polaris’s objection and finds that DX 63 should be and hereby is
PREADMITTED pursuant to Federal Rule of Evidence (“FRE”) 807.
I.
Background
Polaris accuses Samsung of infringing U.S. Patent No. 8,223,117 (the “’117 Patent”). (Dkt.
No. 18.) Samsung, among other defenses, asserts that the Garmin GTX327 transponder is prior art
that invalidates the ’117 Patent. (Dkt. No. 322, at 12.) The Garmin GTX327 is a transponder
designed to be installed in aircraft that allows the aircraft to communicate with ground radar.
Samsung’s expert, Dr. Philip C.D. Hobbs, examined and tested a model of the GTX327
transponder to determine that, in his opinion, it renders the ’117 Patent invalid. (Dkt. No. 201-3,
Part XII.B.)
Samsung seeks to establish that the particular transponder that Dr. Hobbs examined (the
“Tested Device”), which was originally purchased in 2003 and sold to Dr. Hobbs in 2018, is an
authentic and unaltered model of the Garmin GTX327. In support of this, Samsung seeks to
preadmit DX 63, which contains pages of the maintenance records of the aircraft into which the
Tested Device was installed (the “Maintenance Log”). The Maintenance Log shows the date on
which the Tested Device was installed in the aircraft and the date on which it was removed, after
which it was sold to Dr. Hobbs. Federal Aviation Regulations require that the Maintenance Log
be accurately maintained and transferred to any subsequent purchaser of the aircraft. This
particular aircraft was sold, and the Maintenance Log transferred, between the time when the
Tested Device was installed and when it was removed and sold to Dr. Hobbs.
II.
Legal Standard
In patent cases, regional circuit law is applied to evidentiary issues. VirnetX, Inc. v. Cisco
Sys., Inc., 767 F.3d 1308, 1324 (Fed. Cir. 2014).
FRE 807, the residual exception to the rule against hearsay, allows hearsay statements to
be admitted, even when not specifically covered by a hearsay exception in FRE 803 or 804, if:
(1) the statement has equivalent circumstantial guarantees of trustworthiness;
(2) it is offered as evidence of a material fact;
(3) it is more probative on the point for which it is offered than any other evidence that the
proponent can obtain through reasonable efforts; and
(4) admitting it will best serve the purposes of these rules and the interests of justice.
Fed. R. Evid. 807(a).
“Although Rule 807 contemplates the consideration of multiple factors, the ‘lodestar of the
residual hearsay exception analysis’ is on the ‘equivalent circumstantial guarantees of
trustworthiness’ requirement.” United States v. Saguil, 600 F. App’x 945, 946 (5th Cir. 2015)
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(quoting United States v. El–Mezain, 664 F.3d 467, 498 (5th Cir. 2011)). District courts have
“considerable discretion” in applying the residual exception. Id. (quoting United States v. LoalzaVasquez, 735 F.2d 153, 157 (5th Cir. 1984)).
III.
Discussion
The Court finds that each of the factors relevant to the residual exception analysis is met.
A. Equivalent Circumstantial Guarantees of Trustworthiness
The Maintenance Log has equivalent circumstantial guarantees of trustworthiness. Such
logs are required to be maintained by federal regulation. Individuals who perform maintenance on
an aircraft are required to make an entry in the aircraft’s maintenance record specifying the work
performed, date completed, name of the person performing the work, and a signature of the person
approving the work. 14 C.F.R. § 43.9(a). The registered owner or operator of the aircraft is required
to maintain these records, id. § 91.417, and to transfer such records to a subsequent purchaser of
the aircraft, id. § 91.419. Failure to comply with these regulations could result in a civil penalty of
up to $50,000 assessed by the Federal Aviation Administration (“FAA”). 1 Id. § 13.18; see also 49
U.S.C. § 46301(d). This regulated method of creating and maintaining maintenance records
enforced by the FAA constitutes equivalent, if not more substantial, circumstantial guarantees of
trustworthiness as those provided by the enumerated hearsay exceptions. See Saguil, 600 F. App’x
at 947 (finding that manufacturer’s inscriptions have “equivalent guarantees of trustworthiness”
under the residual exception where “such inscriptions are required by law . . . and false
designations . . . give rise to civil liability”).
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If the violation is committed by a person other than an individual or a small business concern,
the penalty is up to $400,000. 49 U.S.C. § 46301(d).
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B. Evidence of a Material Fact
The Maintenance Log is offered as evidence of a material fact, namely whether the Tested
Device was maintained in its original state since its initial purchase. The Maintenance Log is
circumstantial evidence that the Tested Device was unaltered from the time of its installation
shortly after purchase until the time it was removed and ultimately sold to Dr. Hobbs. Whether the
Tested Device is an authentic and unmodified version of the GTX 327 is central to Samsung’s
argument that the GTX327 constitutes invalidating prior art. (Dkt. No. 343 at 52:18–54:10.)
C. More Probative Than Other Evidence
The Maintenance Log is more probative of the issue of the Tested Device’s authenticity
than any other evidence Samsung can obtain through reasonable efforts. The Court previously
ordered the parties to seek the depositions of William Dickenson, Chip Parker, and any other prior
custodians who might have information relevant to the authenticity of the Tested Device and the
Maintenance Log. (Dkt. No. 338.) The parties have been unable to do so despite reasonable efforts.
(See Dkt. No. 344.) Moreover, it is not clear that the memories of a custodian regarding records
created up to 16 years ago would be more reliable, and thus more probative, than the
contemporaneous records maintained in the Maintenance Log.
D. The Purposes of the Rules and the Interests of Justice
Preadmission of the Maintenance Log would best serve the purposes of the rules of
evidence and the interests of justice. The residual exception “was designed to protect the integrity
of the specifically enumerated [hearsay] exceptions by providing the courts with the flexibility
necessary to address unanticipated situations and to facilitate the basic purpose of the Rules:
ascertainment of the truth and fair adjudication of controversies.” Dartez v. Fibreboard Corp., 765
F.2d 456, 462 (5th Cir. 1985). Consistent with this purpose the Court does not stretch the
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enumerated exceptions, such as the business record or public record exceptions, of which the
Maintenance Log is a close approximation. 2 Rather, the Court finds that the Maintenance Log is
probative of a material fact and contains sufficient indicia of authenticity to aid in the
“ascertainment of the truth and fair adjudication of” the controversy at hand, and therefore that its
admission under the residual exception is appropriate.
Preadmitting the Maintenance Log also serves the interests of justice by allowing Samsung
evidence to establish a key component of its invalidity case—whether the GTX327, as tested by
Dr. Hobbs, invalidates the ’117 Patent. This invalidity argument relies upon the Tested Device
being an authentic representation of the GTX327. Evidence of the Tested Device’s authenticity is
particularly important because the Court has already excluded evidence of the source code of the
GTX327, which was obtained after the close of fact discovery but which would have provided an
independent basis for Samsung’s invalidity argument. The Court excluded the source code in part
because Polaris argued that Samsung had already done testing on a model of the GTX327 and thus
the source code would have been “merely cumulative” and Samsung was “not prejudiced by not
having” the source code. (Dkt. No. 330, at 32:3–16.) If Samsung is unable to proffer evidence of
the Tested Device’s authenticity, then the source code evidence would not be “merely cumulative”
of the transponder’s testing and Samsung would indeed be prejudiced by its exclusion. Therefore,
allowing Samsung to establish the authenticity of the Tested Device serves the interests of justice.
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The Maintenance Log likely qualifies as a record “kept in the course of a regularly conducted
activity of a[n] . . . occupation, or calling, whether or not for profit.” Fed. R. Evid. 803(6)(B).
However, the Maintenance Log has been transferred between multiple owners, and thus, no
custodian can testify that it has been kept throughout its life in a manner required by FRE 803(6).
See Fed. R. Evid. 803(6)(D). Additionally, while the Maintenance Log was created and kept
pursuant to regulations from the Federal Aviation Administration, it is not a record of that public
office. See Fed. R. Evid. 803(8).
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E. Mr. Dickenson’s Declaration and The Pilot’s Guide Are Not Preadmitted
The pages of the Maintenance Log that Samsung seeks to admit are attached to a
declaration of Mr. Dickenson, the current owner of the aircraft into which the Tested Device was
installed. The declaration seeks to authenticate the Maintenance Log, but also includes additional
factual information such as when Mr. Dickenson purchased the aircraft and when he removed the
Tested Device. This information is hearsay without any equivalent circumstantial guarantees of
trustworthiness. Accordingly, Mr. Dickenson’s declaration itself is excluded. However, Dr. Hobbs
may testify about the Maintenance Log and the Tested Device within the scope of his expert report
and as a lay witness to the extent he has personal knowledge of the Maintenance Log and the
Tested Device.
DX 63 also includes a copy of the pilot’s guide that accompanied the Tested Device. To
the extent this pamphlet aided Dr. Hobbs’ testing of the Tested Device, Dr. Hobbs may discuss
portions of the pamphlet within the scope of his report. Fed. R. Evid. 803(18). However, the
pamphlet itself is not admitted as an exhibit. Id.
IV.
Conclusion
For the reasons set forth herein, the Court finds that DX 63, excluding Mr. Dickenson’s
declaration and the pilot’s guide, should be and hereby is PREADMITTED.
So Ordered this
Jun 14, 2019
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