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`WILSON SONSINI GOODRICH & ROSATI P.C.
`MORRIS FODEMAN (pro hac vice)
`mfodeman@wsgr.com
`WENDY L. DEVINE (SBN 246337)
`wdevine@wsgr.com
`NATALIE J. MORGAN (SBN 211143)
`nmorgan@wsgr.com
`12235 El Camino Real
`San Diego, CA 92130
`(858) 350-2300
`
`HILGERS GRABEN PLLC
`MICHAEL T. HILGERS (pro hac vice)
`mhilgers@hilgersgraben.com
`575 Fallbrook Blvd, Suite 202
`Lincoln, NE 68521
`(402) 218-2106
`
`Attorneys for Plaintiff NuVasive, Inc.
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`SAN DIEGO DIVISION
`NUVASIVE, INC., a Delaware
`CASE NO.: 18-cv-00347-CAB-MDD
`corporation,
`
`))))))))))))))
`
`Plaintiff,
`
`v.
`
`ALPHATEC HOLDINGS, INC., a
`Delaware corporation, and ALPHATEC
`SPINE, INC., a California corporation,
`Defendants.
`
`PARTIES’ PROPOSED JURY
`INSTRUCTIONS
`
`Judge: Hon. Cathy Ann Bencivengo
`Courtroom: 15A
`Trial Date: January 10, 2022
`
`PARTIES’ PROPOSED JURY
`INSTRUCTIONS
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`18-cv-00347-CAB-MDD
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`ADDITIONAL COUNSEL INFORMATION:
`NIMALKA R. WICKRAMASEKERA (SBN: 268518)
`nwickramasekera@winston.com
`DAVID P. DALKE (SBN: 218161)
`ddalke@winston.com
`LEV TSUKERMAN (SBN: 319184)
`ltsukerman@winston.com
`WILLIAM M. WARDLAW (SBN: 328555)
`wwardlaw@winston.com
`WINSTON & STRAWN LLP
`333 S. Grand Avenue
`Los Angeles, CA 90071-1543
`Telephone: (213) 615-1700
`Facsimile: (213) 615-1750
`GEORGE C. LOMBARDI (pro hac vice)
`glombardi@winston.com
`BRIAN J. NISBET (pro hac vice)
`bnisbet@winston.com
`SARANYA RAGHAVAN (pro hac vice)
`sraghavan@winston.com
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, IL 60601-9703
`Telephone: (312) 558-5600
`Facsimile: (312) 558-5700
`
`ROBERT N. KANG (SBN: 274389)
`rkang@winston.com
`WINSTON & STRAWN LLP
`101 California Street, 35th Floor
`San Francisco, CA 94111-5840
`Telephone: (415) 591-1000
`Facsimile: (415) 491-1400
`
`Attorneys for Defendants ALPHATEC HOLDINGS, INC.
`AND ALPHATEC SPINE, INC.
`
`PARTIES’ PROPOSED JURY
`INSTRUCTIONS
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`PRELIMINARY JURY INSTRUCTIONS
`
`PARTIES’ PROPOSED JURY
`INSTRUCTIONS
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`PROPOSED PRELIMINARY INSTRUCTION NO. 1
`DUTY OF JURY
`Members of the jury: You are now the jury in this case. It is my duty to
`instruct you on the law.
`It is your duty to find the facts from all the evidence in the case. To those
`facts you will apply the law as I give it to you. You must follow the law as I give it
`to you whether you agree with it or not. And you must not be influenced by any
`personal likes or dislikes, opinions, prejudices or sympathy. That means that you
`must decide the case solely on the evidence before you. You will recall that you
`took an oath to do so.
`At the end of the trial I will give you final instructions. It is the final
`instructions that will govern your duties.
`Please do not read into these instructions, or anything I may say or do, that I
`have an opinion regarding the evidence or what your verdict should be.
`
`Authorities: Ninth Circuit Manual of Model Civil Jury Instructions (Jan. 2017,
`updated Mar. 2021) at 1.3.
`____Given
`____Modified
`____Denied
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`PARTIES’ PROPOSED JURY
`INSTRUCTIONS
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`PROPOSED PRELIMINARY INSTRUCTION NO. 2
`UNITED STATES PATENTS
`[NuVasive Proposed Language: Patents are granted by the United States
`Patent and Trademark Office (sometimes called the “PTO” or “USPTO”). A
`patent gives the owner the right to exclude others from making, using, offering to
`sell, or selling the claimed invention within the United States or importing it into
`the United States. During the trial, the parties may offer testimony to familiarize
`you with how one obtains a patent from the PTO, but I will give you a general
`background here.] [Alphatec Proposed Language: This case involves a dispute
`relating to a United States patent. Before summarizing the positions of the parties
`and the legal issues involved in the dispute, let me take a moment to explain what a
`patent is and how one is obtained. Patents are granted by the United States Patent
`and Trademark Office (sometimes called “the PTO”). A valid United States patent
`gives the patent holder the right to prevent others from making, using, offering to
`sell, or selling the patented invention within the United States, or from importing it
`into the United States, during the term of the patent without the patent holder’s
`permission. A violation of the patent holder’s rights is called infringement. The
`patent holder may try to enforce a patent against persons believed to be infringers
`by means of a lawsuit filed in federal court.]
`[NuVasive Proposed Language: To obtain a patent, an application for a
`patent must be filed with the PTO by an applicant. The application includes a
`specification, which should have a written description of the invention, how it
`works, and how to make and use it so as to enable others skilled in the art to do so.
`The specification concludes with one or more numbered sentences or paragraphs.
`These are called the “claims” of the patent. The purpose of the claims is to
`particularly point out what the applicant regards as the claimed invention and to
`define the scope of the patent owner’s exclusive rights.] [Alphatec Proposed
`
`PARTIES’ PROPOSED JURY
`INSTRUCTIONS
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`Language: To obtain a patent one must file an application with the PTO. The
`process of obtaining a patent is called patent prosecution. The PTO is an agency of
`the federal government and employs trained patent examiners who review
`applications for patents. The application includes what is called a “specification,”
`which must contain a written description of the claimed invention telling what the
`invention is, how it works, how to make it and how to use it so others skilled in the
`field will know how to make or use it. The specification concludes with one or
`more numbered sentences. These are the patent “claims.” When the patent is
`eventually granted by the PTO, the claims define the boundaries of its protection
`and give notice to the public of those boundaries.]
`[NuVasive Proposed Language: After an application for a patent is filed
`with the PTO, the application is reviewed by a trained PTO Patent Examiner. The
`Patent Examiner reviews (or examines) the patent application to determine whether
`the claims are patentable and whether the specification adequately describes the
`claimed invention. In examining a patent application, the Patent Examiner
`searches records available to the PTO for what is referred to as “prior art,” and he
`or she also reviews prior art submitted by the applicant.
`When the parties are done presenting evidence, I will give you more specific
`instructions as to what constitutes prior art in this case. Generally, prior art is
`previously existing technical information and knowledge against which the Patent
`Examiners determine whether or not the claims in the application are patentable.
`The Patent Examiner considers, among other things, whether each claim defines an
`invention that is new, useful, and not obvious in view of this prior art. In addition,
`the Patent Examiner may consider whether other requirements for a patent are
`met.]
`
`[Alphatec Proposed Language: After the applicant files the application, a
`PTO patent examiner reviews the patent application to determine whether the
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`PARTIES’ PROPOSED JURY
`INSTRUCTIONS
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`claims are patentable and whether the specification adequately describes the
`invention claimed. In examining a patent application, the patent examiner reviews
`information about the state of the technology at the time the application was filed.
`As part of that effort, the patent examiner searches for and reviews information
`that is publicly available, submitted by the applicant, or both. That information is
`called “prior art.” Prior art is defined by law, and I will give you at a later time
`specific instructions as to what constitutes prior art. However, in general, prior art
`includes things that existed before the claimed invention, that were publicly
`known, or used in a publicly accessible way in this country, or that were patented
`or described in a publication in any country. The patent examiner considers, among
`other things, whether each claim defines an invention that is new, useful, and not
`obvious in view of the prior art. A patent lists the prior art that the examiner
`considered; this list is called the “cited references.”]
`[NuVasive Proposed Language: Following the prior art search and
`examination of the application, the Patent Examiner advises the applicant in
`writing what the Patent Examiner has found and whether any claim is patentable
`(in other words, “allowed”). This writing from the Patent Examiner is called an
`“Office Action.” More often than not, the initial Office Action by the Patent
`Examiner rejects the claims. The applicant then responds to the Office Action and
`sometimes cancels or changes the claims or submits new claims or makes
`arguments against a rejection. This process may go back and forth between the
`Patent Examiner and the applicant for several months or even years until the Patent
`Examiner is satisfied that the application and claims are patentable. Upon payment
`of an issue fee by the applicant, the PTO then “issues” or “grants” a patent with the
`allowed claims.
`The collection of papers generated by the Patent Examiner and the applicant
`during this time of corresponding back and forth is called the “prosecution
`
`PARTIES’ PROPOSED JURY
`INSTRUCTIONS
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`history.” You may also hear the “prosecution history” referred to as the “file
`history” or the “file wrapper.”]
`[Alphatec Proposed Language: After the prior art search and examination
`of the application, the patent examiner then informs the applicant in writing what
`the examiner has found and whether any claim is patentable, and thus will be
`“allowed.” This writing from the patent examiner is called an “office action.” If the
`examiner rejects the claims, the applicant has an opportunity to respond and
`sometimes changes the claims or submits new claims. This process, which takes
`place only between the examiner and the patent applicant, may go back and forth
`for some time until the examiner is satisfied that the application and claims meet
`the requirements for a patent. Sometimes, patents are issued after appeals with the
`PTO or to a court. The papers generated during this time of communicating back
`and forth between the patent examiner and the applicant make up what is called the
`“prosecution history.” All of this material becomes available to the public no later
`than the date when the patent issues.]
`[NuVasive Proposed Language: A patent is presumed to be valid. In other
`words, it is presumed to have been properly granted by the PTO. But that
`presumption of validity can be overcome if clear and convincing evidence is
`presented in court that proves the patent is invalid. In this case, it is ultimately for
`you to decide, based on my instructions to you, whether Defendants Alphatec
`Holdings, Inc. and Alphatec Spine, Inc. (collectively “Alphatec” for short) have
`shown that the patent claims are invalid.] [Alphatec Proposed Language: The fact
`that the PTO grants a patent does not necessarily mean that any invention claimed
`in the patent, in fact, deserves the protection of a patent. For example, the PTO
`may not have had available to it all the information that will be presented to you. A
`person accused of infringement has the right to argue here in federal court that a
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`PARTIES’ PROPOSED JURY
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`claimed invention in the patent is invalid because it does not meet the requirements
`for a patent.]
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`PARTIES’ PROPOSED JURY
`INSTRUCTIONS
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`Authorities: [NuVasive: AIPLA’s Model Patent Jury Instructions (2019) at 1.1 &
`1.2; Volterra Semiconductor Corp. v. Primarion, Inc., No. C-08-05129 JCS, 2011
`WL 4079223, at *10 (N.D. Cal. Sept. 12, 2011) (adopting jury instructions
`regarding the statutory presumption of validity because they “explained that the
`clear and convincing [evidence] standard is used because a patent is entitled to a
`statutory presumption of validity until it is proven invalid by clear and convincing
`evidence”); Am. Tech. Ceramics Corp. v. Presidio Components, Inc., No. 14-CV-
`6544(KAM)(GRB), 2019 WL 2330855, at *9 (E.D.N.Y. May 31, 2019) (adopting
`jury instructions regarding statutory presumption of validity because “it will be
`helpful and not at all confusing to a jury to understand why the particular party
`bears the burden of proof, and that the burden is greater than a preponderance of
`the evidence”); Int'l Bus. Mach. Corp. v. Groupon, Inc., No. 16-122-LPS, 2018
`WL 3007662, at *2 (D. Del. June 15, 2018) (adopting jury instructions regarding
`presumption of validity because “it is reasonable and appropriate to provide the
`jury with some brief explanation for why the burden of proving invalidity is
`different and greater than the burden of proving infringement and damages.”)]
`[Alphatec: N.D. Cal. Model Pat. Jury Inst. A.1.]
`____Given
`____Modified
`____Denied
`
`PARTIES’ PROPOSED JURY
`INSTRUCTIONS
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`PROPOSED PRELIMINARY INSTRUCTION NO. 3
`STATEMENT OF THE CASE
`This is an action for patent infringement. Plaintiff NuVasive, Inc.
`(NuVasive) alleges that Defendants Alphatec Holdings, Inc. and Alphatec Spine,
`Inc. (jointly Alphatec) infringe three U.S. Patents.
`U.S. Patent No. 8,439,832
`(which will generally be referred to as the ’832 Patent);
`U.S. Patent No. 7,819,801
`(which will generally be referred to as the ’801 Patent); and
`U.S. Patent No. 9,974,531
`(which will generally be referred to as the ’531 Patent)
`These patents relate to the field of spinal surgery, more specifically surgical
`access systems for the performance of spinal surgery and disk replacement
`procedures.
`NuVasive owns these three patents and alleges that surgical access systems
`sold by Alphatec infringe these patents and that Alphatec’s infringement is willful.
`It is NuVasive’s burden to prove by a preponderance of the evidence that
`Alphatec’s accused systems infringe NuVasive’s patents and that the infringement
`was willful. Regarding the ’832 Patent, there has already been a determination that
`Alphatec’s system infringes the asserted claims of that patent, so you, the jury, will
`only consider whether NuVasive proves that infringement to be willful. As to the
`claims of the other two patents, you the jury will decide if the claims are infringed
`as well as the question of willfulness. You should not infer from the determination
`that the ’832 Patent is infringed that the claims of the other asserted patents are
`also infringed. Each patent claim must be considered individually.
`Alphatec denies infringement of the ’801 Patent and ’531 Patents and denies
`willful infringement of all the asserted patents. Alphatec further alleges that the
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`asserted patents are invalid. Alphatec has the burden of proving invalidity by clear
`and convincing evidence.
`NuVasive seeks damages for the alleged infringements of its patents in the
`form of lost profits and a reasonable royalty. NuVasive must prove its damages by
`a preponderance of the evidence. Alphatec denies that NuVasive is entitled to any
`award of damages.
`
`Authorities: Finjan, Inc., v. ESET, LLC et al., No. 17-CV-183-CAB-BGS (S.D.
`Cal. Mar. 10, 2020) Doc. No. 792 at 80-81 (Reporter’s Transcript of Jury Trial,
`Day 1, Vol. 1); Doc. No. 355 (Pretrial Order) at 2-4 (Nature of the Case).
`____Given
`____Modified
`____Denied
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`PARTIES’ PROPOSED JURY
`INSTRUCTIONS
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`PROPOSED PRELIMINARY INSTRUCTION NO. 4
`BURDEN OF PROOF – PREPONDERANCE OF THE EVIDENCE
`When a party has the burden of proving any claim or defense by a
`preponderance of the evidence, it means you must be persuaded by the evidence
`that the claim or defense is more probably true than not true.
`You should base your decision on all of the evidence, regardless of which
`party presented it.
`
`Authorities: Ninth Circuit Manual of Model Civil Jury Instructions (Jan. 2017,
`updated Mar. 2021) at 1.6.
`____Given
`____Modified
`____Denied
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`PARTIES’ PROPOSED JURY
`INSTRUCTIONS
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`PROPOSED PRELIMINARY INSTRUCTION NO. 5
`BURDEN OF PROOF—CLEAR AND CONVINCING EVIDENCE
`When a party has the burden of proving any claim or defense by clear and
`convincing evidence, it means that the party must present evidence that leaves you
`with a firm belief or conviction that it is highly probable that the factual
`contentions of the claim or defense are true. This is a higher standard of proof than
`proof by a preponderance of the evidence, but it does not require proof beyond a
`reasonable doubt.
`
`Authorities: Ninth Circuit Manual of Model Civil Jury Instructions (Jan. 2017,
`updated Mar. 2021) at 1.7.
`____Given
`____Modified
`____Denied
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`PROPOSED PRELIMINARY INSTRUCTION NO. 6
`WHAT IS EVIDENCE?
`The evidence you are to consider in deciding what the facts are consists of:
`(1)
`the sworn testimony of any witness;
`(2)
`the exhibits that are admitted into evidence;
`(3)
`any facts to which the lawyers have agreed; and
`(4)
`any facts that I may instruct you to accept as proved.
`
`Authorities: Ninth Circuit Manual of Model Civil Jury Instructions (Jan. 2017,
`updated Mar. 2021) at 1.9.
`___ Given
`___ Modified
`___ Denied
`
`PARTIES’ PROPOSED JURY
`INSTRUCTIONS
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`PROPOSED PRELIMINARY INSTRUCTION NO. 7
`WHAT IS NOT EVIDENCE?
`In reaching your verdict, you may consider only the testimony and exhibits
`received into evidence. Certain things are not evidence, and you may not consider
`them in deciding what the facts are. I will list them for you:
`(1) Arguments and statements by lawyers are not evidence. The lawyers
`are not witnesses. What they may say in their opening statements, closing
`arguments and at other times is intended to help you interpret the evidence, but it is
`not evidence. If the facts as you remember them differ from the way the lawyers
`have stated them, your memory of them controls.
`(2) Questions and objections by lawyers are not evidence. Attorneys have
`a duty to their clients to object when they believe a question is improper under the
`rules of evidence. You should not be influenced by the objection or by the court's
`ruling on it.
`(3) Testimony that is excluded or stricken, or that you are instructed to
`disregard, is not evidence and must not be considered. In addition, some evidence
`may be received only for a limited purpose; when I instruct you to consider certain
`evidence only for a limited purpose, you must do so and you may not consider that
`evidence for any other purpose.
`(4) Anything you may see or hear when the court was not in session is not
`evidence. You are to decide the case solely on the evidence received at the trial.
`
`Authorities: Ninth Circuit Manual of Model Civil Jury Instructions (Jan. 2017,
`updated Mar. 2021) at 1.10.
`___ Given
`___ Modified
`___ Denied
`
`PARTIES’ PROPOSED JURY
`INSTRUCTIONS
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`PROPOSED PRELIMINARY INSTRUCTION NO. 8
`DIRECT AND CIRCUMSTANTIAL EVIDENCE
`Evidence may be direct or circumstantial. Direct evidence is direct proof of a
`fact, such as testimony by a witness about what that witness personally saw or heard
`or did. Circumstantial evidence is proof of one or more facts from which you could
`find another fact. You should consider both kinds of evidence. The law makes no
`distinction between the weight to be given to either direct or circumstantial
`evidence. It is for you to decide how much weight to give to any evidence.
`
`Authorities: Ninth Circuit Manual of Model Civil Jury Instructions (Jan. 2017,
`updated Mar. 2021) at 1.12.
`___ Given
`___ Modified
`___ Denied
`
`PARTIES’ PROPOSED JURY
`INSTRUCTIONS
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`PROPOSED PRELIMINARY INSTRUCTION NO. 9
`RULING ON OBJECTIONS
`There are rules of evidence that control what can be received into evidence.
`When a lawyer asks a question or offers an exhibit into evidence and a lawyer on
`the other side thinks that it is not permitted by the rules of evidence, that lawyer
`may object. If I overrule the objection, the question may be answered or the exhibit
`received. If I sustain the objection, the question cannot be answered, and the
`exhibit cannot be received. Whenever I sustain an objection to a question, you
`must ignore the question and must not guess what the answer might have been.
`Sometimes I may order that evidence be stricken from the record and that
`you disregard or ignore that evidence. That means when you are deciding the case,
`you must not consider the stricken evidence for any purpose.
`
`Authorities: Ninth Circuit Manual of Model Civil Jury Instructions (Jan. 2017,
`updated Mar. 2021) at 1.13.
`____Given
`____Modified
`____Denied
`
`PARTIES’ PROPOSED JURY
`INSTRUCTIONS
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`PROPOSED PRELIMINARY INSTRUCTION NO. 10
`CREDIBILITY OF WITNESSES
`In deciding the facts in this case, you may have to decide which testimony to
`believe and which testimony not to believe. You may believe everything a witness
`says, or part of it, or none of it.
`In considering the testimony of any witness, you may take into account:
`(1)
`the opportunity and ability of the witness to see or hear or know the
`things testified to;
`(2)
`the witness’s memory;
`(3)
`the witness’s manner while testifying;
`(4)
`the witness’s interest in the outcome of the case, if any;
`(5)
`the witness’s bias or prejudice, if any;
`(6) whether other evidence contradicted the witness's testimony;
`(7)
`the reasonableness of the witness's testimony in light of all the
`evidence; and
`(8)
`any other factors that bear on believability.
`Sometimes a witness may say something that is not consistent with something
`else he or she said. Sometimes different witnesses will give different versions of
`what happened. People often forget things or make mistakes in what they
`remember. Also, two people may see the same event but remember it differently.
`You may consider these differences, but do not decide that testimony is untrue just
`because it differs from other testimony.
`However, if you decide that a witness has deliberately testified untruthfully
`about something important, you may choose not to believe anything that witness
`said. On the other hand, if you think the witness testified untruthfully about some
`things but told the truth about others, you may accept the part you think is true and
`ignore the rest.
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`PARTIES’ PROPOSED JURY
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`The weight of the evidence as to a fact does not necessarily depend on the
`number of witnesses who testify. What is important is how believable the witnesses
`were, and how much weight you think their testimony deserves.
`
`Authorities: Ninth Circuit Manual of Model Civil Jury Instructions (Jan. 2017,
`updated Mar. 2021) at 1.14.
`____Given
`____Modified
`____Denied
`
`PARTIES’ PROPOSED JURY
`INSTRUCTIONS
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`PROPOSED PRELIMINARY INSTRUCTION NO. 11
`DEPOSITION IN LIEU OF LIVE TESTIMONY
`A deposition is the sworn testimony of a witness taken before trial. The
`witness is placed under oath to tell the truth and lawyers for each party may ask
`questions. The questions and answers are recorded. When a person is unavailable
`to testify at trial, the deposition of that person may be used at the trial.
`Insofar as possible, you should consider deposition testimony, presented to
`you in court in lieu of live testimony, in the same way as if the witness had been
`present to testify.
`
`Authorities: Ninth Circuit Manual of Model Civil Jury Instructions (Jan. 2017,
`updated Mar. 2021) at 2.4.
`___ Given
`___ Modified
`___ Denied
`
`PARTIES’ PROPOSED JURY
`INSTRUCTIONS
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`PROPOSED PRELIMINARY INSTRUCTION NO. 12
`CONDUCT OF THE JURY
`I will now say a few words about your conduct as jurors.
`First, keep an open mind throughout the trial, and do not decide what the
`verdict should be until you and your fellow jurors have completed your
`deliberations at the end of the case.
`Second, because you must decide this case based only on the evidence
`received in the case and on my instructions as to the law that applies, you must not
`be exposed to any other information about the case or to the issues it involves
`during the course of your jury duty. Thus, until the end of the case or unless I tell
`you otherwise:
`Do not communicate with anyone in any way and do not let anyone
`else communicate with you in any way about the merits of the case or
`anything to do with it. This includes discussing the case in person, in
`writing, by phone, tablet, or computer, or any other electronic means,
`via email, text messaging, or any internet chat room, blog, website or
`application, including but not limited to Facebook, YouTube, Twitter,
`Instagram, LinkedIn, Snapchat, Tiktok, or any other forms of social
`media. This applies to communicating with your fellow jurors until I
`give you the case for deliberation, and it applies to communicating with
`everyone else including your family members, your employer, the
`media or press, and the people involved in the trial, although you may
`notify your family and your employer that you have been seated as a
`juror in the case, and how long you expect the trial to last. But, if you
`are asked or approached in any way about your jury service or anything
`about this case, you must respond that you have been ordered not to
`discuss the matter and report the contact to the court.
`
`Because you will receive all the evidence and legal instruction you
`properly may consider to return a verdict: do not read, watch or listen
`to any news or media accounts or commentary about the case or
`anything to do with it; do not do any research, such as consulting
`dictionaries, searching the Internet, or using other reference materials;
`and do not make any investigation or in any other way try to learn
`
`PARTIES’ PROPOSED JURY
`INSTRUCTIONS
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`about the case on your own. Do not visit or view any place discussed in
`this case, and do not use the Internet or any other resource to search for
`or view any place discussed during the trial. Also, do not do any
`research about this case, the law, or the people involved—including the
`parties, the witnesses or the lawyers—until you have been excused as
`jurors. If you happen to read or hear anything touching on this case in
`the media, turn away and report it to me as soon as possible.
`
`These rules protect each party’s right to have this case decided only on
`evidence that has been presented here in court. Witnesses here in court take an oath
`to tell the truth, and the accuracy of their testimony is tested through the trial
`process. If you do any research or investigation outside the courtroom, or gain any
`information through improper communications, then your verdict may be
`influenced by inaccurate, incomplete or misleading information that has not been
`tested by the trial process. Each of the parties is entitled to a fair trial by an
`impartial jury, and if you decide the case based on information not presented in
`court, you will have denied the parties a fair trial. Remember, you have taken an
`oath to follow the rules, and it is very important that you follow these rules.
`A juror who violates these restrictions jeopardizes the fairness of these
`proceedings and a mistrial could result that would require the entire trial process to
`start over. If any juror is exposed to any outside information, please notify the
`court immediately.
`
`Authorities: Ninth Circuit Manual of Model Civil Jury