VirnetX Inc. v. Cisco Systems, Inc. et al

Filing 568

Minute Entry for proceedings held before Judge Leonard Davis: Jury Selection held on 10/29/2012. (Court Reporter Shea Sloan.) (Attachments: # 1 Sign In Sheets) (cwk) (Main Document 568 replaced on 10/30/2012) (cwk, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
OCTOBER 28, 2012
LEONARD DAVIS, Judge Presiding
Law Clerk(s): Gabrielle LaHatte
Chief Staff Attorney: Nicole Mitchell
VIRNETX INC.
V.
APPLE INC.
ATTORNEYS FOR PLAINTIFF
See Sign-In Sheet

Court Reporter: Shea Sloan
Judicial Assistant: Carrie King
CIVIL ACTION NO: 6:10-CV-417
JURY SELECTION
ATTORNEYS FOR DEFENDANTS
See Sign-In Sheet

On this day, came the parties by their attorneys and the following proceedings were had:
OPEN: 9:00 AM

ADJOURN: 3:45 PM

TIME:

MINUTES:

9:00 AM

Preliminary Proceedings: Pretrial matters taken up.
Jason Cassady for Plaintiff discussed Motion in Limine issues.
Mr. Cassady presented arguments on Plaintiff’s Motion in Limine B. Scott
Woloson responded for Defendant and discussed potential agreement. Mr. Cassady
replied. Court granted motion.
Austin Curry presented arguments on Plaintiff’s Motion in Limine G. Mr. Woloson
responded for Defendant. Court granted motion and advised counsel that they must
approach the bench before this issue is brought before the jury.
Brad Caldwell presented arguments on Plaintiff’s Motion in Limine F. Matt
Rodgers responded for Defendant. Mr. Caldwell replied. Court inquired of Mr.
Rodgers re Daubert. Mr. Rodgers responded. Mr. Caldwell further replied. Court
granted motion and advised counsel that they must approach the bench before this
issue is brought before the jury. Court discussed effect this information may have
on the jury.
Mr. Caldwell presented arguments on Plaintiff’s Motion in Limine H. Mr.
Woloson responded and discussed potential agreement. Mr. Caldwell replied. Mr.
Woloson replied. Mr. Caldwell further replied. Court inquired regarding relief
Plaintiff is requesting. Mr. Caldwell responded. Court advised counsel that this
matter will be taken up when the issue arises during trial.
Mr. Cassady advised that Plaintiff has no further matters to discuss.
Mr. Woloson advised that Defendant has no further matters to discuss.

TIME:

MINUTES:
Court inquired regarding Plaintiff’s Emergency Motion to Dismiss Invalidity
Counterclaims (Docket No. 559).
Danny Williams responded for Defendant. Mr. Williams presented a summary of
the proceedings to date.
Court inquired regarding a stipulation. Mr. Williams responded.
Court inquired regarding length of trial time subject to motion. Mr. Williams
responded.
Court inquired regarding re-examination subject to motion. Mr. Williams
responded.
Court inquired regarding effect of dismissal subject to motion as compared to jury
verdict. Mr. Williams responded.
Court inquired regarding effect on co-defendants subject to motion. Mr. Williams
responded.
Doug Cawley responded for Plaintiff. Discussed timetable for adjudication of
validity claims. Court requested copy of Plaintiff’s proposed order denying motion.
Copy tendered to the Court.
Mr. Williams responded for Defendant. Court inquired regarding communications
between the parties. Eric Albritton responded. Mr. Cawley had nothing further.
Court inquired of Mr. Cawley regarding effect Plaintiff’s proposed order would
have as compared to a jury finding. Mr. Cawley responded. Court inquired
regarding specific language that would trigger termination of proceedings at
USPTO.
Court inquired of Mr. Williams regarding potential agreement. Mr. Williams
responded. Court inquired regarding re-examination proceedings. Mr. Williams
responded. Court and Mr. Williams discussed.
Mr. Cawley responded. Mr. Williams replied. Court inquired of Mr. Williams
regarding motion having same effect as a jury finding. Mr. Williams requested
time to confer with his client.

9:40 AM

Court in recess

9:47 AM

Court resumes.
Court inquired regarding Defendant’s response. Mr. Albritton responded for
Defendant and requested the Court deny its motion. Mr. Cawley advised that
Plaintiff does not object. Court denied Plaintiff’s Emergency Motion to Dismiss
Invalidity Counterclaims (Docket No. 559) without prejudice to refiling.
Mr. Albritton advised that the Desmarais firm will be assisting the defense team for
Defendant Apple. Mr. Cawley responded that Plaintiff does not object if invalidity
ruling will apply to Defendant Cisco as well. Mr. Desmarais addressed the Court
and asked to respond. The Court acknowledged Mr. Desmarais.
John Desmarais appeared and represented that he and Michael Stadnick would
request to appear at trial on behalf of Defendant Apple only and that collateral
estoppel should not apply to Defendant Cisco. Mr. Cawley responded.

TIME:

MINUTES:
Court requested that the parties file motions and briefing on the issue. Court
advised it is ready to proceed with jury selection.

9:50 AM

Court in recess so that Jury Panel may be seated.

10:00 AM

Jury Panel seated in the courtroom.
Court addressed the Jury Panel and welcomed them to jury service. Court provided
a brief overview of the case.
Court conducted voir dire examination of the Jury Panel.
Court asked counsel for the parties to introduce themselves, co-counsel, clients and
any witnesses from the East Texas area.
Mr. Cawley introduced himself, co-counsel, and client, and advised Plaintiff has no
witnesses from the East Texas area.
Court inquired if anyone knew those mentioned. No response.
Mr. Albritton introduced himself, co-counsel, and client, and advised Defendant has
no witnesses from the East Texas area.
Court inquired if anyone knew those mentioned. No response.
Mr. Cawley conducted voir dire examination of the jury panel on behalf of
Plaintiff.
Mr. Albritton conducted voir dire examination of the jury panel on behalf of
Defendant.
Court asked counsel to approach the bench. (Bench Conference held).
Court addressed the Jury and advised they will be given a 20 minute break.
Court requested Jurors #10, 22, and 23 remain in the courtroom.

11:21 AM

Jury excused from Courtroom.
Court asked Juror #23 some additional questions. Juror #23 excused.
Court asked Juror #22 some additional questions. Juror #22 excused.
Court asked Juror #10 some additional questions. Mr. Albritton asked Juror #10
some additional questions. Court questioned Juror further. Juror #10 excused.
Court addressed the parties and requested challenges as to these three witnesses.
Mr. Albritton challenged Juror #22 for cause. Mr. Cawley did not object. Court
granted motion.
Mr. Albritton challenged Juror #10 for cause. Mr. Cawley objected. Court denied
motion.
Mr. Albritton challenged Juror #23 for cause. Court denied motion.
Court advised counsel that each side will have 7 peremptory challenges.

11:30 AM

Court in recess.

TIME:

MINUTES:

11:50 AM

Jury seated in Courtroom

11:50 AM

Court resumed. Mr. Albritton requested to approach the bench. (Bench Conference
held).
Court asked Clerk to read the names of the jurors selected. Clerk read the 8 names
of the jurors. Court thanked and excused the remaining Jury Panel. Court asked
the Clerk to administer oath to Jury Panel. Jury sworn.
Court gave the Jury some preliminary instructions.

12:30 PM

Court excused Jury until Wednesday, October 31, 2012 at 9:00 a.m.
Court addressed the parties. Requested the parties have their exhibits ready to be
submitted on Wednesday. Requested the parties not file documents after 7:00 pm
or to otherwise advise the court the next morning of the filing. Requested available
witnesses appear to be sworn in on Wednesday. Requested the parties have their
jury charge ready on Wednesday morning.
Mr. Cawley advised Plaintiff has nothing further.
Mr. Albritton addressed the court regarding Motions in Limine. Mr. Cawley
responded that Plaintiff also has some Motion in Limine issues to be addressed.

12:35 PM

Court adjourned for lunch.

2:07 PM

Court resumed.
Mr. Caldwell requested to take up Plaintiff’s Motions in Limine. Discussed the
order of proceedings.
Mr. Caldwell presented arguments on Plaintiff’s Motion in Limine C. Mr.
Woloson responded for Defendant and discussed potential agreement on first part
of the motion. Court inquired regarding what Defendant might bring up before the
jury. Mr. Woloson responded. Mr. Caldwell replied. Court granted the motion
and advised counsel that they must approach the bench before this issue is brought
before the jury.
Mr. Caldwell presented arguments on Plaintiff’s Motion in Limine E and advised
that the first bulleted portion is agreed to by the parties. Court granted the first
bulleted portion.
Mr. Caldwell presented arguments on the second bulleted portion of Plaintiff’s
Motion in Limine E and advised that it is agreed to by the parties. Court granted
the second bulleted portion.
Mr. Caldwell advised that Plaintiff waives the third bulleted portion of its Motion in
Limine E. Court denied the third bulleted portion.
Mr. Caldwell presented arguments on the fourth bulleted portion of Plaintiff’s
Motion in Limine E. Drew Kim responded for Defendant. Mr. Caldwell
responded. Mr. Kim further responded. Court inquired regarding change in code in
use of defense. Mr. Kim responded. Court granted the fourth bulleted portion and
advised counsel that they must approach the bench before this issue is brought
before the jury.

TIME:

MINUTES:
Mr. Caldwell presented arguments on the fifth bulleted portion of Plaintiff’s Motion
in Limine E. Mr. Kim responded. Mr. Caldwell responded. Mr. Kim further
responded. Court inquired regarding argument on non-infringing alternatives. Mr.
Kim responded. Mr. Caldwell responded. Court denied the fifth bulleted portion
and advised Defendant on what may be brought before the jury.
Mr. Caldwell presented arguments on the sixth portion of Plaintiff’s Motion in
Limine E (contained in the narrative portion of the motion). Mr. Williams
responded for Defendant. Court inquired regarding witness testimony. Mr.
Williams responded. Court inquired regarding expert reports. Mr. Williams
responded. Mr. Caldwell responded. Court inquired regarding prejudice to
Plaintiff. Mr. Caldwell responded. Court denied the sixth portion of the motion.
Court inquired regarding additional discovery. Mr. Caldwell responded. Mr.
Williams responded. Mr. Caldwell further responded. Mr. Williams further
responded. Court advised the parties.
Nothing further from Plaintiff.
Mr. Kim advised that Defendant’s Motion in Limine #1 is agreed. Mr. Cassady
responded and wanted to clarify the proposed language. Mr. Kim responded and
requested time to review the language.

2:52 PM

Court in recess.

3:08 PM

Court resumed.
Mr. Kim addressed the court regarding the portions of Defendant’s Motion in
Limine that are agreed. Court requested the parties file a joint stipulation. Mr.
Cassady responded. Mr. Kim responded.
Mr. Cassady advised that Plaintiff’s Motion in Limine A is agreed.
Mr. Caldwell advised that an agreement has been reached regarding examination of
Dr. Jones.
Mr. Woloson presented arguments on Defendant’s Motion in Limine #2. Mr. Curry
responded for Plaintiff. Court granted the motion as to the S. Jobs statement. Mr.
Woloson responded. Mr. Curry responded. Court denied the motion as to “should
have known.” Court advised the parties to provide trial briefs on this issue.
Mr. Woloson presented arguments on Defendant’s Motion in Limine #6. Mr.
Caldwell responded for Plaintiff. Mr. Williams responded for Defendant. Court
inquired regarding application and patent issued. Court will allow issue but not
argument in detail. Mr. Caldwell responded; requested clarification on what Court
will allow. Court inquired regarding reasons for argument. Mr. Caldwell
responded. Court clarified ruling. Mr. Williams responded. Mr. Cassady
responded. Court requested response from Mr. Williams. Mr. Williams responded.
Mr. Cassady responded. Court advised that this matter will be taken up when the
issue is reached at trial.
Mr. Woloson presented arguments on Defendant’s Motion in Limine #8. Mr. Curry
responded. Court denied motion.

TIME:

MINUTES:
Mr. Kim presented arguments on Defendant’s Motion in Limine #3. Mr. Pearson
responded for Plaintiff. Court granted the motion and advised counsel that they
must approach the bench before this issue is brought before the jury.
Mr. Kim presented arguments on Defendant’s Motion in Limine #7. Mr. Cawley
responded for Plaintiff. Mr. Kim replied. Court denied motion.
Mr. Albritton requested clarification of Court’s ruling on Defendant’s Motion in
Limine #3. Mr. Pearson responded. Court clarified ruling and advised Mr.
Albritton.
Mr. Kim presented arguments on Defendant’s Motion in Limine regarding
discovery disputes. Mr. Caldwell has no further arguments on this issue and
believes this issue needs no further ruling. Mr. Kim and Mr. Caldwell discussed
agreement.
Mr. Woloson inquired as to when Court would like to receive briefing. Court
responded.
Mr. Curry addressed the court regarding “willful blindness.” Court and Mr. Curry
discussed.
Mr. Cassady addressed the Court regarding newly issued products. Mr. Williams
responded. Mr. Cassady responded. Mr. Williams responded. Mr. Cassady
responded. Court inquired as to relief requested. Mr. Cassady responded. Mr.
Williams responded. Court and parties discussed.
Mr. Cassady addressed the Court regarding inequitable conduct. Court inquired of
Mr. Williams regarding inequitable conduct. Mr. Williams responded. Court
advised Mr. Williams regarding procedures for presenting testimony on this issue.
Mr. Williams responded. Court further advised Mr. Williams. Mr. Cassady
inquired regarding witness testimony. Mr. Williams responded. Court inquired as
to agreements on witnesses. Mr. Cassady responded. Mr. Williams inquired of the
Court regarding witness testimony. Court and Mr. Williams discussed.
Mr. Cassady requested the Court grant Plaintiff’s Motion in Limine as to Apple’s
patents to prevent use in Defendant’s opening statements. Court requested response
from Mr. Albritton regarding opening statements. Mr. Albritton responded. Mr.
Cawley responded. Court granted motion and advised counsel that they must
approach the bench before this issue is brought before the jury.

3:45 PM

There being nothing further, Court adjourned.