What was John Quinn thinking when he authorized a press
statement on behalf of his client Samsung in a patent trial
against Apple, discussing exhibits the judge had specifically
barred that very morning?
Quinn, of course, is the managing partner of the powerhouse
litigation shop Quinn Emanuel Urquhart & Sullivan. Besides Apple
v. Samsung, the firm has a hand in lots of high-profile fights:
It represents Google and it is a major plaintiff-side player in
billion-dollar litigation over failed mortgage-backed
The patent trial -- which will decide whether Samsung
violated iPhone and iPad IP -- kicked off this week with jury
selection, opening statements and the first witnesses. But the
pretrial run-up was not kind to Samsung or the lawyers at Quinn
Emanuel. U.S. District Judge Lucy Koh in San Jose, California,
issued two pretrial injunctions against Samsung in June: one
against the Galaxy Nexus phone and the other against the Galaxy
Tab 10.1. This is a decidedly different environment from the one
Google's Motorola Mobility unit faced with Judge Richard Posner
in Chicago, who tossed Apple's case because he thought it could
not prove damages (he also tossed Motorola's much slimmer case
Koh handed down evidentiary rulings on in limine motions for
and against both sides. But Samsung just couldn't get past one
of the decisions that went against it: what slides it could
present to the jury during Quinn Emanuel partner Charles
Verhoeven's opening statement. The South Korean company wanted
to display images of Samsung designs that were in development
before the iPhone, which look similar to the Apple product and
could undermine the validity of Apple's patents. Samsung also
wanted to discuss evidence of Apple's reliance on Sony phone
designs, to show that even Apple is inspired by others.
But U.S. Magistrate Judge Paul Grewal had ruled those
contentions had not been disclosed in time, so Koh said Samsung couldn't use them during opening arguments. The Quinn team asked
her to reconsider. Denied.
That's when Quinn stepped onto the stage on Tuesday, the day
after a jury was sworn and just minutes before openings were set
to start. Dressed in a stylish blue suit with mussed hair, Quinn
stood before Koh and said he had "been practicing for 36 years"
and had never begged the court, but that now he was begging that
she reconsider on the slides. Again, Koh said no.
"What's the point of having a trial?" Quinn said, his voice
rising. "What's the point?"
Koh tried to shut him down. "Mr. Quinn, please, please, we
have done three reconsiderations on this. You've made your
"Can I get some explanation..."
"Mr. Quinn, don't make me sanction you, please!" the judge
barked. "I want you to sit down, please."
Quinn did, but the drama was just getting started. At 2:48
p.m., after openings were done and a suave Apple industrial
designer was testifying, a Samsung press statement hit our inbox
(along with those of other reporters) with a link to the
excluded slides. (The linked material has since been removed,
but All Things D snagged it.) "The excluded evidence would have
established beyond doubt that Samsung did not copy the iPhone
design," the statement said. "Fundamental fairness requires that
the jury decide the case based on all the evidence."
Less then two hours later, after Koh sent the jury home for
the day, Apple lawyer Harold McElhinny of Morrison & Foerster
stood up. McElhinny said he had been unsure what Quinn was up to
that morning, but the press statement made it clear.
"This is an intentional attempt to pollute this jury,"
McElhinny said, adding that it should be considered "contempt of
Koh jumped all over it.
"Call Mr. Quinn," she told the Samsung legal team. "I'd like
to see him today." When they told her he had already gone back
to Los Angeles for an event, Koh ordered Quinn to file a
declaration by Wednesday. "I want to know who drafted the press
release, who authorized it from your legal team," Koh said, "and
I want Mr. Quinn's declaration as to what his role was."
Quinn's declaration hit the docket Wednesday morning.
"Contrary to the representations Apple's counsel made to this Court, Samsung did not issue a general press release and
more importantly, did not violate any Court Order or any legal
or ethical standards," he wrote. "These false representations by
Apple's counsel publicly and unfairly called my personal
reputation into question and have resulted in media reports
likewise falsely impugning me personally."
Instead, Quinn said Samsung was merely responding to press
inquiries about the issue (though this reporter didn't ask about
it) and attached a redacted email he said was from a journalist.
All of the material in the excluded exhibits was previously in
the public record, Quinn argued, and lawyers have a First
Amendment right to speak to the press. The case has "enormous
potential commercial impact," and Koh had already ruled that
pretrial submissions are a part of trial, he wrote.
"Samsung's brief statement and transmission of public
materials in response to press inquiries was not motivated by or
designed to influence jurors," Quinn wrote. "The members of the
jury had already been selected at the time of the statement and
the transmission of these public exhibits, and had been
specifically instructed not to read any form of media relating
to this case."
In a filing on Wednesday, Apple said Quinn had not answered
all of the judge's questions and that it would file an emergency
motion seeking sanctions. Since the trial is dark until Friday,
we may have to wait until then to hear what Koh makes of his
(Reporting by Dan Levine)
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