Opinion
6-21-CV-00057-ADA
09-09-2021
VLSI TECHNOLOGY LLC, Plaintiff v. INTEL CORPORATION, Defendant
ORDER ON MOTION FOR NEW TRIAL FOR JUROR MISCONDUCT
ALAN D ALBRIGHT
Before the Court in the above-entitled and styled cause of action is a Motion for New Trial filed by Defendant Intel Corporation (“Intel”) on March 29, 2021. ECF No. 581. Plaintiff VLSI Technology LLC (“VLSI”) filed its Response on April 12, 2021. ECF No. 595. Intel filed a Reply on April 19, 2021. ECF No. 596. In the Motion, Intel informs the Court of an instance of potential juror misconduct and prejudice to the Defendant in relation to the trial held in this matter from February 22 to March 2, 2021. Intel requests that the Court grant a new trial or hold an evidentiary hearing to investigate the potential misconduct. The Court heard oral argument on this Motion on August 11, 2021.
Intel separately filed a Motion for Judgment that Recovery is Barred Under the Doctrine of Unclean Hands (ECF No. 591); a Motion for Judgment as a Matter of Law (ECF No. 591); and a Motion for No Infringement of U.S. Patent No. 7, 725, 759 Under the Doctrine of Equivalents (ECF No. 593). This order does not address those motions.
For the reasons explained below, the Court will DENY the Motion for New Trial in its entirety and will not hold an evidentiary hearing to inquire further into this matter.
I. LEGAL STANDARD
In a motion for new trial alleging juror misconduct, “[t]he procedures used to investigate allegations of juror misconduct and the decision as to whether to hold an evidentiary hearing are matters which rest solely within the sound discretion of the district court." United States v. Kelley, 140 F.3d 596, 608 (5th Cir. 1998). Accordingly, a district court's denial of a motion for new trial based on juror misconduct, as well as the “choice of methods to investigate the possibility” that such misconduct exists, are reviewed for abuse of discretion. United States v. Cantu, 167 F.3d 198, 201 (5th Cir.1999).
“To be entitled to a new trial based on an extrinsic influence on the jury, a defendant must first show that the extrinsic influence likely caused prejudice.” United States v. Jordan, 958 F.3d 331, 335 (5th Cir. 2020) (quoting United States v. Mix, 791 F.3d 603, 608 (5th Cir. 2015)). If that occurs, the burden then shifts to the responding party to show a lack of prejudice, which it can do by showing that there is “no reasonable possibility that the jury's verdict was influenced by the extrinsic evidence.” Id. (quotingMix, 791 F.3d at 608). The previous test requiring that any outside influence on the jury was presumptively prejudicial has been rejected by the Fifth Circuit, and instead “the presumption of prejudice and the assignment of the burden of proof are not triggered automatically but are imposed at the discretion of the district court.” United States v. Sylvester, 143 F.3d 923, 933 (5th Cir. 1998); see also Jordan, 958 F.3d at 335.
Some Circuits have taken a contrary view as to the standard of rebuttable presumption. See United States v. Greer, 285 F.3d 158, 173 (2d Cir. 2002); United States v. Basham, 561 F.3d 302, 318 (4th Cir. 2009); Mayhue v. St. Francis Hosp. of Wichita, Inc., 969 F.2d 919, 922 (10th Cir. 1992). However, the Fifth Circuit adopts the above view, which is shared by others. See Middlebrook v. Napel, 698 F.3d 906, 908 (6th Cir. 2012); United States v. Blumeyer, 62 F.3d 1013, 1016-17 (8th Cir. 1995). United States v. Williams-Davis, 90 F.3d 490, 496 (D.C. Cir. 1996).
A district court is further not required to conduct a “full-blown evidentiary hearing in every instance in which an outside influence is brought to bear upon a petit jury.” United States v. Ramos, 71 F.3d 1150, 1153 (5th Cir. 1995). Instead, in deciding whether a hearing is justified, the court “must balance the probable harm resulting from the emphasis such action would place upon the misconduct and the disruption involved in conducting a hearing against the likely extent and gravity of the prejudice generated by the misconduct.” Id. Thus, “[t]he court is not required to conduct an investigation into claims of exposure that are merely speculative.” United States v. Smith, 354 F.3d 390, 394 (5th Cir. 2003) (quoting Kelley, 140 F.3d at 608).
II. BACKGROUND
a. Procedural History
VLSI is the owner of U.S. Patent Nos. 8, 156, 357 (“the '357 Patent”), 7, 523, 373 (“the '373 Patent”), and 7, 725, 759 (“the '759 Patent”). Am. Compl., ECF No. 123, at 1. On April 11, 2019, VLSI sued Intel alleging that thousands of microprocessors made and sold by Intel infringe these patents (along with 5 others) and requesting enhanced damages for willful infringement. See Original Compl., ECF No. 1, at 33-34. On February 25, 2021, the Court granted a motion for summary judgment filed by Intel and concluded that Intel did not infringe the '357 Patent as a matter of law. See Order, ECF No. 532.
After almost two years of litigation, the Court held a trial in which the jury found that Intel literally infringed the '373 Patent and infringed the '759 Patent under the Doctrine of Equivalents. The jury awarded a lump sum damages total of $2,175,000,000-$1.5 billion of which was attributed to Intel's infringement of the '373 Patent and $675 million of which was attributed to Intel's infringement of the '759 Patent. See Verdict, ECF No. 564.
b. The Facebook Post
In the instant motion, Intel informs the Court that, while “investigating publicly available material to determine whether jurors relied on extraneous material in arriving at this damages award, ” Intel “discovered” a public Facebook post made by a juror (hereinafter, “the Juror”) during trial. That Facebook Post, created early on the morning of March 1, 2021, the sixth day of trial, contains a colorful photo collage comprising an image of the courtroom where the trial was held, a calendar of the month, several pictures of the comic book character Lex Luthor, the logo for his company LexCorp, and an image of the motto “In Science We Trust.”
The Court's use of the term “the Facebook Post” in this order refers to the March 1, 2021 post.
This Facebook Post is one in a lengthy series of photo collages published by the Juror, all of which follow a general template: each post is created on the first day of the month, each features a calendar of that month, most feature a character or characters from movies, and many feature pop culture “Easter eggs.” One such example is the February 2020 collage, which includes a picture of comic book character Harley Quinn, a stylized image of the Beatles' “All You Need Is Love” release, and the date February 14th circled with a heart. See Ex., ECF No. 595-2, at 15. The collage seems to have been celebrating the February 2020 release of Birds of Prey, which featured Quinn.
The Court has examined 36 collages in total, which equate to around three years of such posts. See Ex., ECF No. 595-2, at 2-37.
Similarly, the June 2020 collage included a picture of the comic book character Wonder Woman, several 1980s movie posters and the caption “Back to the Eighties.” See Ex., ECF No. 595-2, at 11. That collage seems to be celebrating the June 2020 release of Wonder Woman: 1984, which features Wonder Woman. Like Lex Luthor, Harley Quinn and Wonder Woman are characters from the DC Comics Justice League franchise.
Finally, the February 2021 collage, posted one month before the Facebook Post at issue in this motion, features a photo of the Waco Federal Courthouse from the outside, taken from Google Maps. See Ex., ECF No. 595-2, at 3. A Google Maps watermark is visible on the photo. This collage also features a picture of the envelope that contained the Juror's jury summons, as well as pictures related to Abraham Lincoln and Presidents Day.
III. DISCUSSION
Intel urges that the Court must grant a new trial in light of the Facebook Post for four reasons: (1) The Juror violated the Court's orders to the jury; (2) the Facebook Post shows that the Juror consulted extra-record information about this case in violation of the Court's orders to the jury; (3) the Facebook Post shows that the Juror pre-judged the case before the close of evidence and the jury charge; and (4) the Facebook Post shows the Juror was not entirely truthful in answering a material question on his juror questionnaire. See Mot., ECF No. 581, at 8-9. For each of these reasons, Intel requests a new trial, or, alternatively, requests that the Court should hold an evidentiary hearing to determine the full extent of juror misconduct, including any improper influence from outside sources. Id. at 15. The Court will examine each of Intel's arguments in turn.
a. Violation of Court Orders
Intel argues that the Facebook Post constitutes a violation of the Court's orders, issued to the jury in its preliminary instructions, issued by the magistrate judge during voir dire, and issued repeatedly each time the trial recessed. Intel points specifically to several such instructions. The first example, the Court's preliminary instructions, included:
During your jury service, you may not communicate any information about this case through any means or by any tools of technology. For example, do not talk face-to-face or use any electronic device or media, such as a telephone, cell phone, camera, recording device, PDA, computer, the Internet, any Internet service, any text or instant messaging service, any chat room, blog or website such as Facebook, et cetera, or any other way to communicate about this case. You may not communicate to anyone any information about this case until you have gotten your verdict to me.Mot., ECF No. 581, at 10 (citing Trial Tr., 183:3-10).
Second, Intel points to the last time the Court instructed the jury before the Juror's Facebook Post, wherein the Court warned the jury “do not use social media or look at anything about the case over the weekend.” Id. (citing Trial Tr., 1305:17-18).
Third, Intel points to the Court's instruction to the jury that it not “conduct any independent investigation of this case, period, ” and that it not “try to obtain information from any source, ” “go online” to try to find information or “ever research any information” about the case. Id. at 11 (citing Trial Tr., 184:9-185:1).
Finally, Intel points to Magistrate Judge Manske's caution to the jury during voir dire: “Do not try to prejudge a case and assume [they] know where the trial is going. Wait until you have heard all of the evidence, the arguments of the attorneys and the Court's instructions on the law before making a decision.” Id. at 13 (citing Trial Tr., 10:1-5).
Intel argues that the Facebook Post clearly violated each of these Court orders. Most concerningly, Intel points to the origin of the image of the Waco courtroom where the trial was held. That image originates from the IPWatchdog blog and contains information about the case that Intel believes is highly prejudicial. See id. at 11. Certainly, that blog contains information which, if viewed by a juror, would constitute research in violation of the Court's order.
However, VLSI responds that, viewed in context, it is extremely unlikely that the Juror viewed the IPWatchdog blog in order to find the photograph of the courtroom:
“Every specific image in [the Juror's] March 1, 2021 collage appears to have been obtained from Google Images. The courtroom stock photo is the first result of a Google Images search for ‘waco courtroom.' The two ‘LexCorp' photos are both on the first page of results for ‘lexcorp.' The Lex Luthor from Smallville is the second result of a search for ‘smallville lex luthor president.' The Lex Luthor from Supergirl is the first result of a search for ‘supergirl lex luthor.' The Lex Luthor from Superman and Lois is the second result of a search for ‘superman and lois wole parks.' And the graphic that reads ‘In Science WE TRUST' is the fourth result of a search for ‘in science we trust.' Google images allows all of these full-sized images to be downloaded right from the search results page.”Resp., ECF No. 595, at 10 (cleaned up).
Further, VLSI points to the Juror's history with his collages, in which Google images and Google Maps are the source for his photos:
Intel notes that Juror X also posted a calendar collage on February 1, 2021. That collage's photos are likewise available from Google. The photo of Abraham Lincoln is the fifth result of a Google Images search for “abraham lincoln real photo”; the Lincoln quote is the first result of a search for “abraham lincoln rightful masters”; and the “Official Jury Summons Enclosed” photo is the fourth result of a search for “jury summons enclosed” The Courthouse photo definitively came from Google Maps, found by searching "800 Franklin Ave, Waco, Texas" and opening “Street View.” For proof, the collage and Google Maps photo have three identical “©2020Google” watermarks and identical window reflections of parked cars. The evidence thus overwhelmingly shows that Juror X uses Google to find photos.Id. at 11 (cleaned up).
The Court agrees with VLSI that to suggest the Juror departed from his established practice of using Google images to create photo collages and instead pulled some images off patent blogs requires a great deal of speculation. This speculation is further compounded by the fact that the specific article from which the photograph originated discussed the Waco courtroom's recent technology upgrade, not anything even remotely relevant to this case, so any relevant research would require a separate search.
Moreover, the Court agrees with VLSI that, with respect to the Court's instructions to the jury, the Juror abided by the letter of the law, if not the spirit. Based on the information available to the Court, the Juror did not “communicate any information about the case.” And despite the Court's instruction not to “use social media or look at anything about the case over the weekend, ” elsewhere the Court made clear that jurors could communicate “about the Dallas Cowboys or the recent freeze or anything [the jury would] like” other than information “about the case.” See (Trial Tr., 184:4-7). It was not the Court's intention to require the jury to completely cut themselves off from all forms of online communication, just to avoid discussion of the case with outside influences. At most, the Facebook Post and the February 2021 collage amount to a communication that the Juror was serving his jury duty-not a statement that violates the Court's orders or instructions.
The Court concludes that Intel has failed to carry its burden, which the Second Circuit has described as showing “clear, strong, substantial and incontrovertible evidence . . . that a specific, non-speculative impropriety has occurred.” United States v. Ianniello, 866 F.2d 540, 543 (2d Cir. 1989).
b. Extra-record Information
Intel argues that the IPWatchdog blog from which the Facebook Post's photo originated was extra-record information that tainted the jury and prejudiced Intel. Intel points to the Fifth Circuit's recent guidance that courts should consider “external influences presumptively prejudicial.” See United States v. Davis, 971 F.3d 524, 532 (5th Cir. 2020). The Court disagrees. As discussed above, Intel is required to demonstrate “that the extrinsic influence likely caused prejudice.” Jordan, 958 F.3d at 335.
The Fifth Circuit has rejected the presumption of prejudice in external influences for the most part. See Jordan, 958 F.3d at 335 (“. . . a defendant must first show that the extrinsic influence likely caused prejudice.”). However, at first glance, Davis and Jordan seem to conflict. The cases can be distinguished. The Fifth Circuit in Davis very briefly discussed its earlier Oliver decision, in which it held (based on guidance from the Supreme Court) that the Sixth Amendment “forbids jurors from being subjected to private communication, contact or tampering and considers any such external influences presumptively prejudicial.” See Davis, 971 F.3d at 532 (cleaned up); Oliver v. Quarterman, 541 F.3d 329, 335 (5th Cir. 2008); Remmer v. United States, 347 U.S. 227, 229 (1954). The Court concludes that certain external influences must be considered presumptively prejudicial. Those influences include “private communication, contact, or tampering.” See Davis, 971 F.3d at 532. Other external influences are not deemed presumptively prejudicial, and the movant for new trial must demonstrate such prejudice. See Jordan, 958 F.3d at 335. Regardless, the external influences present here are not of those types the Davis court considers presumptively prejudicial. No private communication, contact, or tampering is alleged to have occurred in this case. Thus, Intel is required to demonstrate that the external influences allegedly present here are likely prejudicial.
A juror is exposed to an external influence when the juror reads information not admitted into evidence, such as a newspaper article about the case, or hears prejudicial statements from others.” Oliver v. Quarterman, 541 F.3d 329, 335 (5th Cir. 2008). Intel believes the IPWatchdog blog is similar to a “newspaper article about the case, ” and that the Court should therefore consider such a blog as being presumptively prejudicial.
The Court agrees that certain topics discussed by the IPWatchdog blog could constitute an “external influence” under the meaning of the term as established by the Supreme Court. See Robinson v. Polk, 444 F.3d 225, 231 (4th Cir. 2006) (King, J., dissenting) (“The external influences recognized by the [Supreme] Court . . . share a single, constitutionally significant characteristic: they are external to the evidence and law in the case, and carry the potential to bias the jury against the defendant.”). And regardless of which articulation of the external-influence standard the Court applies, a blog about patent litigation which heavily features discussion of the case at bar almost certainly contains information that would be prejudicial to a litigant. But, importantly, the Court has no reliable indication to suggest the Juror actually consulted the external influence in question.The Juror downloaded a picture from the blog, but his three years of Facebook posts indicate he gets his pictures from Google Images, which does not require users to view the source material. The suggestion that he read the blog or somehow garnered information that could even theoretically prejudice Intel requires speculation and falls well short of the clear, strong, substantial and incontrovertible evidence Intel is required to provide to obtain a new trial. This conclusion is further strained by the fact that the article from which the picture originated focused on the technology in the Waco courtroom-a topic extremely unlikely to result in any prejudice against a litigant even if the Juror had consulted it.
The line of cases Intel provides for the argument that the Court should consider the external influences presumptively prejudicial all support the conclusion that such a presumption arises only when the jury actually consulted those influences. See Davis, 971 F.3d at 532 (no juror misconduct issue where the “evidence reflects no external influence on the jury”); Oliver, 541 F.3d at 334 (juror misconduct issue where jury consulted the Bible during deliberations); United States v. Chiantese, 582 F.2d 974, 979 (5th Cir. 1978) (no abuse of discretion where trial judge did not hold an evidentiary hearing, because “there was no outside influence”); Haley v. Blue Ridge Transfer Co., Inc., 802 F.2d 1532, 1534 (4th Cir. 1986) (juror mistakenly retired to jury deliberation room with the jury for the wrong case and made comments to fellow jurors about the litigants); Mayhue v. St. Francis Hosp. of Wichita, Inc., 969 F.2d 919, 921 (10th Cir. 1992) (jury foreperson found in the bathroom and read aloud to fellow jurors a handwritten note with definitions of key words in trial).
Intel then further speculates that the specific damages figure the jury selected to compensate VLSI for Intel's infringement of the '759 Patent-$675 million-came from a New York Times article disclosing that Intel paid that amount to settle a case with another company not related to this lawsuit. Mot., ECF No. 581, at 17. Intel's suggestion appears to be that because the Juror downloaded a picture of the Waco courtroom for use in a colorful Facebook post, he must have (a) left his Google Images search to read the article on the IPWatchdog blog, (b) ignored the Court's orders not to conduct research and consulted other articles on the IPWatchdog blog, (c) continued to ignore the Court's orders by then conducting a separate “simple internet search” to find that Intel has settled patent cases with other companies, (d) found one such settlement at $675 million and arbitrarily selected it, (e) returned to the jury room with this information, and (f) somehow suggested that number as the appropriate damages figure for Intel's infringement of one of the two patents-in-suit.
VLSI suggests the $675 million figure is a round number accounting for around 80% of their requested damages for Intel's infringement of the '759 Patent and is simply the number the jury found fair after its deliberation. The Court agrees.
c. Pre-judgment of the Case
Intel next suggests that the content of the Facebook Post - images of Lex Luthor interposed over the Waco courtroom before the close of trial-indicates that the Juror had pre-judged the case before the close of evidence:
[The Juror's] March 1 Facebook post shows that he pre-judged the case before the close of evidence and before the jury charge. More specifically, the Lex Luthor imagery conveys a firm conviction on the merits of the case-and against Intel in particular-before deliberations even began. Lex Luthor is a comic book supervillain who is traditionally portrayed as Superman's nemesis. He is a billionaire industrialist and CEO of “LexCorp, ” which is a nefarious megaconglomerate technology company. His presence in the Waco courtroom in [the Juror's] Facebook post shows that [the Juror] equated Intel with an evil technology corporation, and thus demonstrates that he unfairly prejudged the case against Intel before the close of evidence-which constitutes juror misconduct.Mot., ECF No. 581, at 13.
A handful of problems exist with this rationale. First, like Intel's other arguments in this motion, the Court believes this one makes a mountain out of a molehill. The Facebook Post, like many others in the Juror's post history, contains images of movies and images related to things happening in the Juror's life. Those posts do not necessarily represent his opinion on various happenings. VLSI notes that Zach Snyder's Justice League (also known as The Snyder Cut), which released around two weeks after the Facebook Post, made headlines in the movie industry for its plan to feature Lex Luthor more heavily than the original version of the film on which it was based. See (Resp., ECF No. 595, at 8). It is VLSI's position that, like the many instances of the Juror posting images of movie characters in each month's collage, the Facebook Post was simply celebrating Lex Luthor's expanded role in The Snyder Cut. The Court agrees that, viewed in context, the Facebook Post is not at all an aberration from the Juror's post history-his calendars feature images of characters from movies being released each month. To say that he meant to deride Intel by comparing it to Lex Luthor or LexCorp ignores this post history.
Second, Intel's argument presumes both that the Juror associates Lex Luthor with Intel, and that the Juror is not the sort of person who sympathizes more with the “villain” than the “hero.” Perhaps the Juror associates not Intel, but VLSI with Lex Luthor-VLSI is a smaller organization challenging the powerful Intel, which could be analogized to a human being challenging Superman. Perhaps the Juror likes Lex Luthor, which could explain why Luthor's likeness dominates the Facebook Post, not that of Superman, Batman, Wonder Woman, the Flash, or Aquaman, each of whom are also featured in The Snyder Cut.
The third problem is that, even if by the 6th day of trial, the Juror had developed an anticorporate bias and a general distaste toward Intel, Intel does not explain how such a feeling, developed mid-trial and in response to evidence, constitutes juror misconduct. The jury is expected to keep an open mind as much as possible, but that expectation does not foreclose the possibility that strong evidence leads the jury to certain preliminary deductions before they retire to deliberate.
d. Truthfulness on Juror Questionnaire
Finally, Intel argues the Facebook Post constituted juror misconduct because it demonstrates that the Juror was not truthful when he indicated he had a neutral opinion of large corporations in America. The Facebook Post, Intel urges, demonstrates an anti-corporate bias that would have been grounds for a challenge for cause or peremptory strike.
But for many of the same reasons discussed above in response to Intel's pre-judgment argument, this assertion is unpersuasive. The Facebook Post likely does not actually demonstrate anti-corporate bias, and, even if it did, the Juror was entitled to change his mind about Intel in response to evidence presented at trial.
e. Summary
The Court finds that Intel has not carried its burden of demonstrating the existence of any external influence or showing that an external influence likely caused prejudice. As a result, a new trial on this basis would be inappropriate. See Jordan, 958 F.3d at 335. Furthermore, in keeping with the Court's responsibility to “balance the probable harm resulting from” an evidentiary hearing with “the likely extent and gravity of the prejudice generated by” the alleged misconduct, the Court concludes that an evidentiary hearing is unnecessary. Ramos, 71 F.3d at 1153; see also Smith, 354 F.3d at 394 (courts are “not required to conduct an investigation into claims of exposure that are merely speculative.”).
IV. CONCLUSION
For the reasons described above, the Court finds that Intel has not carried its burden of demonstrating that a new trial is necessary. Thus, the Court renders the following order:
IT IS ORDERED that Intel's Motion for New Trial (ECF No. 581) is DENIED.