CyberTech Rambler

November 2, 2012

Checkmate …

Filed under: Uncategorized — ctrambler @ 8:51 pm

Via Groklaw, we see a brilliant piece of work from Samsung’s lawyer. Samsung managed to corner Apple into a corner where whichever ways it choose, it will be on the losing part. Just in case Apple couldn’t see it, Samsung spell it out for Apple.

On the surface, the issue appears to be when did Apple know that the jury foreman was involved in a litigation that will make it biased against Samsung. Apple argued that Samsung could had, should had and _actually_ had, known that the Foreman is involved in the lawsuit but kept quiet to gain a litigation advantage. Samsung turn it around and say if it could had, should had and actually had, then so did Apple. As such, it wants to know when did Apple know about it. It is relying on a important concept in litigation that you should turn over information that might be useful to the other party even if it might be at your detriment. That is suppose to be one of the few things that distinguish between civilized and uncivilized litigation.

However, I believe Samsung’s intention is to bury Apple argument that it could had and should had known about it, let alone kept quiet to gain an advantage over Apple.

Apple appears to be at a weak position since it cannot win if it is stupid enough to take either paths Samsung laid out for it. However, Apple is not stupid. It will attempt to wiggle out of this by latching on the fact that Samsung did some digging on the Foreman during the trial and says it did something similar BUT no more. The latter is crucial, as Apple will argue that it is only looking for bias against itself so it is perfectly reasonable that it did not know about the potential bias. Crucially, it is Samsung’s duty to look after itself. If it did not it is its fault.

On the surface, Samsung’s request seems to be reasonable. However, let’s not forget that we only have Samsung’s words. The request will only be reasonable if and only if all of the following are satisfied: The foreman should had disclosed the litigation, the non-disclosure is material in determine whether the foreman is biased and Samsung could not reasonably be expected to discover this earlier. While people like me believe Samsung met that burden, the only person(s) that matters are the judges in this case.

As PJ says, we are watching GREAT lawyers from both side at work. This round to Samsung.

Finally, it is indeed unusual for Samsung to ask that Apple’s lawyers disclose what they know “under the penalty of perjury”. PJ noted that this is Samsung giving notice that if it will take things further if it thinks that  Apple had lied. The conspiracy theorist in me says Samsung have evidence that Apple did know about the litigation. However, the more balanced me says that Samsung is just sable-rattling.

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