Trials

Why Didn't the Blurred Lines Defendants File Rule 50 Motions? (Waiver, again)

You can find plenty of commentary on whether the Ninth Circuit Court of Appeals ruled correctly when it upheld a jury verdict that “Blurred Lines” infringed the copyright in “Got To Give It Up.” But another aspect of this decision has received little attention, and that is a mistake made by trial counsel for the Williams/Thicke defendants in this case.

One of the things that keeps lawyers awake at night (or should) is the risk that they will unknowingly waive a client’s legal rights. I wrote about this in 2008 (Traps for the Unwary – Waiver), and again in 2010 (Mister Softee Bitten By Waiver Under FRCP 50 ). In the 2010 post I observed that Microsoft’s failure to move for judgment as a matter of law (“JMOL” in legal jargon) under Rule 50 may have cost it several hundred million dollars.

The bottom line is that lawyers always need to be alert to the risk of a waiver.… Read the full article

When the Judge Distrusts Your Lawyers: Waymo v. Uber

Uber is in trouble.

The trial between Alphabet’s Waymo and Uber over Waymo’s self-driving car trade secrets was scheduled to begin on December 4th before Judge William Alsup, of  Oracle v. Google fame. (Readers familiar with coverage of that case know how smart and tough he is).

According to published reports, at the last minute evidence (a letter) was discovered suggesting that Uber has a team dedicated to collecting trade secrets from competing companies. Allegedly, the people involved use disappearing-message apps, anonymous servers, and secret computers and phones to communicate without leaving a trail. The purpose was to ensure there was no paper trail that would come back to haunt the company in any criminal or civil litigation.

However, now that this has been disclosed, that strategy has backfired.

Whether this Uber team targeted Waymo is not entirely clear, but there is enough suspicion that it did for Judge Alsup to have postponed the trial so Waymo can conduct additional discovery – discovery that would have already have taken place had Uber disclosed this earlier.… Read the full article

Apple v. Samsung: One Angry Man?

by Lee Gesmer on December 20, 2012

Apple v. Samsung: One Angry Man?

Juror #8: It’s always difficult to keep personal prejudice out of a thing like this. And wherever you run into it, prejudice always obscures the truth. 12 Angry Men

In this business you got fifty ways you’re gonna screw up. If you think of twenty-five of them, then you’re a genius… and you ain’t no genius. Body Heat (“G”-rated version of quote from the movie)

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If you’ve noticed a lawyer with a paranoid, haunted look, and you’re wondering why, the answer may be that the lawyer is thinking, “what I have forgotten? Having a waived something I shouldn’t have?” The last time I wrote about the lawyer’s nightmare of waiver the waiver may have ended up costing Microsoft $300 million. In that case, i4i’s patent suit against Microsoft, Microsoft’s appeal of damages was made more difficult  by its failure to move for judgment as a matter of law on the issue.… Read the full article

Despite what lawyers may promise their clients, lawyers cannot guarantee confidentiality in litigation.

Much time and effort is spent negotiating “protective orders” (a stipulation filed by the parties and “entered” as an order by the court).  Usually the “PO,” as its called, provides for three designations: “attorney’s eyes only,” “confidential” and non-confidential.  “Attorney’s eyes only” usually covers attorneys and experts retained by a party, but not the executives or employees of the party itself.

Lawyers work hard to make sure they follow the dictates of a PO.  Most embarrassing for lawyers is when they mistakenly “under-designate” a group of documents (“oops, those documents should have been attorney’s eyes only, not simply confidential.  Can we agree to redesignate them?  You haven’t shown them to your client yet, have you?”). Usually this isn’t a problem (after all, there but for the grace of God …), but sometimes it is, requiring a motion and decision by the judge on how to treat the “mistake.”

Not infrequently, one side will claim the other side has “over-designated” documents: “that shouldn’t be attorney’s eyes only, will you agree to redesignate it a confidential?… Read the full article