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`CIVIL ACTION NO.
`2:19-CV-152-JRG
`MARSHALL, TEXAS
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`)(
`)(
`)(
`)(
`)(
`SEPTEMBER 8, 2020
`)(
`9:01 A.M.
`)(
`PRETRIAL HEARING
`BEFORE THE HONORABLE JUDGE RODNEY GILSTRAP
`UNITED STATES CHIEF DISTRICT JUDGE
`
`SOLAS OLED LTD.
`
`VS.
`
`SAMSUNG DISPLAY CO.,
`LTD., ET AL.
`
`FOR THE PLAINTIFF: (See Attorney Attendance Sheet docketed
`in minutes of this hearing.)
`
`FOR THE DEFENDANTS:(See Attorney Attendance Sheet docketed
`in minutes of this hearing.)
`
`COURT REPORTER:
`
`Shelly Holmes, CSR, TCRR
`Official Reporter
`United States District Court
`Eastern District of Texas
`Marshall Division
`100 E. Houston Street
`Marshall, Texas 75670
`(903) 923-7464
`
`(Proceedings recorded by mechanical stenography, transcript
`produced on a CAT system.)
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`CIVIL ACTION NO.
`2:19-CV-152-JRG
`MARSHALL, TEXAS
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`)(
`)(
`)(
`)(
`)(
`SEPTEMBER 8, 2020
`)(
`9:01 A.M.
`)(
`PRETRIAL HEARING
`BEFORE THE HONORABLE JUDGE RODNEY GILSTRAP
`UNITED STATES CHIEF DISTRICT JUDGE
`
`SOLAS OLED LTD.
`
`VS.
`
`SAMSUNG DISPLAY CO.,
`LTD., ET AL.
`
`FOR THE PLAINTIFF: (See Attorney Attendance Sheet docketed
`in minutes of this hearing.)
`
`FOR THE DEFENDANTS:(See Attorney Attendance Sheet docketed
`in minutes of this hearing.)
`
`COURT REPORTER:
`
`Shelly Holmes, CSR, TCRR
`Official Reporter
`United States District Court
`Eastern District of Texas
`Marshall Division
`100 E. Houston Street
`Marshall, Texas 75670
`(903) 923-7464
`
`(Proceedings recorded by mechanical stenography, transcript
`produced on a CAT system.)
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`I N D E X
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`September 8, 2020
`
`Appearances
`Pretrial Hearing
`Court Reporter's Certificate
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`COURT SECURITY OFFICER: All rise.
`THE COURT: Be seated, please.
`All right. This is the time set for pre-trial
`matters to be heard before the Court in Solas OLED Limited
`versus Samsung Display Limited, et al. This is Civil Case
`No. 2:19-CV-152.
`Let me call for announcements at this time.
`What says the Plaintiff, Solas?
`MS. HENRY: Good morning, Your Honor. Claire
`Henry on behalf of Plaintiff, Solas. I'm joined today by
`my law partner, Andrea Fair, and my co-counsel, Marc
`Fenster, Reza Mirzaie, Adam Hoffman, Neil Rubin, and Jacob
`Buczko. We're ready to proceed, Your Honor.
`THE COURT: All right. Thank you.
`What says the Defendants?
`MR. GILLAM: Good morning, Your Honor. Gil Gillam
`for Samsung. Also with me here today, Bob Haslam, Jeffrey
`Lerner, and Daniel Cho. Ready to proceed, Your Honor.
`THE COURT: All right. Thank you.
`Counsel, let me begin with some housekeeping
`matters to go over with you.
`This case is set for jury selection on Thursday,
`October the 1st. That will be the third jury trial I will
`have tried since the advent of COVID-19. There are various
`public health-related protocols that the Court is
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`implementing. Let me cover some of those with you, as well
`as the basic housekeeping matters that we need to cover
`also.
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`First of all, I'll note that the pre-trial order
`indicates that Mr. Fenster and Mr. Mirzaie are designated
`as co-lead counsels for the Plaintiffs. The Court's local
`rules and the Court's practice do not allow for co-lead
`counsel. If I ever start allowing that, I'll have 17
`people who are all co-lead counsel. We need one lead
`counsel.
`So you two gentlemen flip a coin or do whatever
`you need to do and file a new notice with the Court that
`indicates which one of you is lead counsel for purposes of
`this case.
`As I say, the case is set for jury selection on
`October the 1st, which is a Thursday. My recent experience
`indicates to me that it will take most, if not all, of the
`entire first day to select, seat, and swear the jury in in
`this case.
`At a high level, let me tell you what you can
`expect. The venire panel has been advised and summonsed to
`be here at 7:45. They'll be brought into the courthouse
`one at a time. They'll be processed individually through
`security, and then they'll be escorted by a Court Security
`Officer to the courtroom. They'll be placed in the gallery
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`in designated seats.
`My intention is to put 40 members of the venire
`panel in the gallery. The entire gallery will be consumed
`with socially distanced members of the venire panel.
`Therefore, if you have additional staff, paralegals, jury
`consultants, corporate representatives, in-house counsel,
`or others, they will not be permitted in the courtroom
`during jury selection.
`The Magistrate's courtroom downstairs will be
`available for those folks. There will be monitors there
`where what goes on in here will be streamed so that they
`can observe and see what goes on.
`But the facilities that we have just will not
`accommodate those other than the trial teams and the venire
`panel in this courtroom and allow for social distancing.
`The members of the venire panel will be required
`to wear a mask. They will have gloves available if they
`want them. There will be two Court Security Officers in
`the gallery amongst the members of the panel during jury
`selection. Both sides will examine the panel from the
`podium.
`If you specifically call on a member of the venire
`panel to answer a question or during the time when they're
`called upon by the Court to answer those nine background
`questions that are standard procedure, each member, as it
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`comes their turn or when the question is posed to them,
`will stand. They will remove or pull down their masks so
`that you can see the entirety of their face when they give
`the answers, and then they will put their mask back and
`have a seat. That's the procedure that we'll follow there.
`I'm going to limit each side to three individuals
`at counsel table during jury selection. You choose who you
`want at counsel table during jury selection. Whether it's
`three lawyers, it's a corporate representative and two
`lawyers, it's a lawyer, a corporate representative, and a
`jury consultant, I don't care who the three people are. I
`care that you not have more than three people at counsel
`table during jury selection.
`Also, counsel, one thing that's a little bit
`unusual about this process during this environment is that
`we will not be having bench conferences. It doesn't make
`public health sense to have six of you come up and whisper
`six inches from my face here at the bench.
`So when it comes time for me to inquire whether
`counsel has any challenges for cause among the members of
`the panel, Ms. Holmes, the court reporter, and I will
`leave. We'll go into the jury room. You'll come in with
`us. And I'll instruct the Court Security Officer to
`maintain order in the courtroom. And there, outside of the
`presence of the jury, or the jury panel, rather, you'll
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`advise me as to who you might wish to challenge for cause
`on the record.
`Then I will bring in those individuals to the jury
`room with you in there with me so that on the record, they
`can be examined and a determination made by the Court as to
`whether to grant or deny your challenge for cause.
`Same process will happen with regard to members of
`the panel that have scheduling conferences -- or scheduling
`conflicts, rather, that would not permit them to be here
`throughout the entirety of the trial.
`I intend to tell the jury panel what's going on,
`but that just is a little bit different. But it's really
`the only way that I can interview those members challenged
`for cause or those with scheduling problems outside of the
`presence of everyone else and still do it on the record.
`Also, there won't be recesses while we have the
`entire panel in the courtroom. It makes no sense to let 40
`people get up and walk out of the courtroom all at one
`time. That will destroy the benefits of the social
`distancing.
`So the Court Security Officers will as -- at the
`appropriate time go to each row which should have about
`three people on it and see if any of those three people
`need a restroom break or some other reason to leave the
`courtroom. And if so, they'll take them out, they'll do
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`what they've left to do, and then they'll bring them back
`and put them back in their seats and go to the next row.
`As I mentioned, there'll be two Court Security
`Officers in the gallery during voir dire. They'll each
`have a separate handheld microphone, and when any member of
`the panel is asked a question and answers it by using one
`of those handheld microphones, the second handheld
`microphone will be given to the next person, and the one
`that's been used will be wiped down with a disinfectant --
`disinfecting cloth so that we will clean and sanitize each
`microphone between its uses with the panel. And that will
`be visible to the members of the panel.
`I'm going to order that meals be provided for the
`jury throughout the trial so that they will not leave the
`jury room. I'm going to have the jury box, the jury room,
`the restrooms that serve the jury room deep cleaned each
`day during the trial after we exit the courthouse for the
`day.
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`Everybody will have their temperature checked when
`they come in the courthouse each day, and that includes the
`members of the venire panel on the first day, the members
`of the jury on every other day, and each member of the
`trial teams as you come in.
`On the first day, I've already advised you this by
`email, I believe, I will call or have my staff call you
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`when it's appropriate for you to come to the courthouse and
`go through security and enter the building. I don't think
`it's a good idea to have the trial teams and the venire
`panel intermingling outside the courthouse as you come in
`together.
`So once the panel is checked in and seated, we'll
`call you as to when you should come to the building and
`enter on that first day, October the 1st. Other than that,
`there'll be no limitations on when you get here other than
`the schedule that the Court intends to keep.
`After the jury is seated and sworn and I dismiss
`the remainder of the panel, then your support staff will be
`welcome to enter the courtroom. Those of you where you
`would have more than three people at counsel table can
`enter the courtroom, as well. I want to maintain no more
`than three people at counsel table during the trial.
`But inside the bar, there are benches on each side
`of the courtroom. Mr. Fenster, Ms. Henry are on one on the
`Plaintiff's side. There'll be spaces for your additional
`team members to be present inside the bar, but I don't want
`more than three people at each table during the course of
`the trial.
`Now, with regard to the housekeeping matters
`related to the process itself, each side is going to be
`afforded 30 minutes to examine the panel for jury selection
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`purposes. Each side will be given the customary option of
`using up to three minutes at the beginning of their time to
`give a very high level non-argumentative barebones overview
`of what's at issue in the case, just enough to give a bare
`amount of context to the panel. It is not to be
`argumentative.
`If I sense that it's argumentative, I will call
`you down in front of the panel. And if it's excessively
`argumentative, I'll impose some sanction. So make it
`non-argumentative.
`I'll seat eight members for the jury in this case,
`and each side will be afforded four peremptory challenges.
`After we select the jury, we'll immediately
`proceed into the trial with my preliminary instructions,
`your opening statements, and the Plaintiff's case-in-chief.
`I'm going to afford each side 13 hours per side to
`present their evidence. That does not include voir dire,
`it does not include opening statements, it does not include
`closing arguments.
`I'll give each side 30 minutes per side for
`opening statements.
`And I'm going to afford each side a total of 40
`minutes per side for closing arguments.
`And you may divide your time, Plaintiffs, between
`your first and final closing arguments, with the only
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`caveat that you must use at least 50 percent of your time
`in your initial closing argument.
`Any disputes regarding demonstratives or other
`matters can be taken up with the Court beginning at 7:30
`each morning. My intention during the course of the trial
`is to start with the evidence at approximately 8:30 each
`morning. I will be in chambers no later than 7:30. That
`hour is available to counsel to maximize the use of your
`designated trial time by not consuming it while we're in
`the courtroom and on the clock.
`If you have issues that have arisen overnight that
`you have not been able to resolve through strenuous and
`professional and candid meet and confer efforts, then I'll
`be available during that hour to give you guidance and
`resolve those surviving disputes.
`You're obviously to exchange demonstratives and
`any other matters each evening. You're to meet and confer
`over any possible objections or arguments or disputes not
`later than 9:00 o'clock. If you can't resolve those
`problems within an hour, by 10:00 o'clock, you're to email
`my staff as to where you are and what problems as to what
`issues you have at that time.
`You are to continue to meet and confer. And by
`7:00 o'clock the next morning, you're to deliver a
`three-ring binder to the door of chambers identifying
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`what's still in dispute. If there's a demonstrative or
`some other document, you should include a copy of whatever
`the issue is, as well as a single succinct paragraph
`outlining each party's position.
`It does me no good to get a demonstrative and see
`what the Plaintiff's problem is and hear nothing from the
`Defendant or vice versa. Make sure I hear from both sides
`in a single succinct paragraph with the item that's in
`dispute and deliver that in a three-ring binder to chambers
`by 7:00 o'clock.
`By 7:30, I'll be prepared to sit down with you and
`go over those issues, give you guidance. And hopefully by
`8:30, be prepared to bring in the jury and begin that day's
`portion of the trial.
`Beginning on the second day, I will ask, before
`the jury is brought in, for each side to go to the podium
`and to read into the record those items from the list of
`pre-admitted exhibits that were used during the preceding
`day's portion of the trial.
`We will keep a running record in the record of the
`items from the pre-admitted exhibit list what's actually
`been used before the jury. And we'll do that each day
`beginning with the second day. That way there'll be a
`clear record of what's been used before the jury and is no
`longer a merely pre-admitted exhibit but is an admitted
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`exhibit and part of the record.
`Those items not used before the jury, not covered
`by that rendition into the record in the mornings will
`remain only pre-admitted. They are not part of the record.
`They are not a part of the evidence in the case. And we'll
`keep -- keep that clear distinction on the record each
`morning beginning with the second day of the trial.
`If you have disputes regarding witnesses that are
`going to testify by deposition, either designation disputes
`or counter-designation disputes, make sure those come to me
`no later than the day before the day you intend to use
`them. I do not want the trial delayed because you brought
`me those disputes the day of, and then there are problems
`with your technical people recutting tape or otherwise
`implementing the guidance that the Court would give.
`So to make sure we don't have any unnecessary
`avoidable delays in the trial, bring me any deposition
`disputes not later than the day before the day you intend
`to use them.
`As is the Court's practice and pursuant to the
`provisions of Rule 50, the Court will hear motions from
`both Plaintiff and Defendant for judgment as a matter of
`law under Rule 50(a) after all the evidence has been
`presented. That means after the Plaintiff's case-in-chief
`has been presented and rested, the Defendants'
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`case-in-chief has been presented and rested, and any
`rebuttal case the Plaintiff may put on. At that point,
`I'll inquire as to whether either or both sides have
`motions to offer to the Court under Rule 50(a), and I will
`take those up at that time.
`After I have considered and ruled on any motions
`under Rule 50(a) of the Federal Rules of Civil Procedure,
`I'll conduct an informal charge conference in chambers with
`all counsel invited and welcome to participate where we'll
`then review the most current version of the proposed charge
`and verdict form.
`I'll hear complete and informal and fulsome input
`from both sides as to any areas in those submissions where
`the parties are not in agreement. I'll take into account
`that input from both sides. And after the informal charge
`conference has been completed, I'll generate what the Court
`believes in reliance on that input and the Court's own view
`of the issues and the law, the Court will generate what it
`believes to be the appropriate final jury instructions and
`verdict form.
`I'll provide copies of those to counsel with an
`adequate time to review them. And then I'll conduct a
`formal charge conference on the record where either party
`may lodge such formal objections to either the charge or
`the verdict that they think the interest of their client
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`and the law require.
`After that formal charge conference, I'll make any
`necessary adjustments, if any, and I'll generate then the
`final charge and verdict form. It's the Court's practice
`to give each member of the jury a printed hard copy of the
`final jury instructions so they're not distracted by trying
`to take notes while they're getting the final instructions
`from the Court. And they may take those eight copies with
`them to the jury room when they retire to deliberate, along
`with a single clean copy of the verdict form.
`During the course of the trial, it's the Court's
`practice to prohibit the identification or use of first
`names only for any individual. I don't believe that use of
`first names only in a United States District Court is in
`keeping with the requisite decorum that's required. I also
`believe it is inherently confusing in the transcript and
`the record, especially where there are more than one
`individual who might be identified by the same first name.
`Therefore, you are not to identify any individual
`on the record by first name only while the jury is in the
`courtroom and you're on the record. Your witnesses are not
`to do that, and you're to instruct your witnesses not to do
`that. And if your witnesses violate that, I'll hold you
`accountable because it's your responsibility to make sure
`that they follow the Court's instruction.
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`That -- that includes references to any technical
`person who may be in the room doing IT work for you.
`That's any reference to anybody. Avoid use of first names
`only.
`
`Also, I'll refer you to the Court's standing order
`on sealing the courtroom to protect proprietary or
`confidential information. That is the mechanism set forth
`in that standing order that I intend to use. The process
`of seeking redactions after the trial is not a means by
`which to avoid the disclosure of confidential information.
`Redaction, in the Court's view, is only for
`limited means such as unintended recitals of dates of
`birth, driver's license numbers, Social Security numbers,
`or other individual identity identifiers.
`As you're aware, the Court will allow the use of a
`juror questionnaire, and the juror questionnaire in this
`case has already been -- well, actually, I think it goes
`out today. But it will be back in advance of jury
`selection prior to October the 1st.
`I will refer each side to communicate with
`Ms. Kecia Clendening, the deputy clerk in charge for the
`Marshall Division, as to when you may have access to those
`completed juror questionnaires, and you're to follow her
`instructions implicitly.
`It is the Court's practice that you are not to
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`copy or retain any of the information on those juror
`questionnaires. You'll have hard copies of the answered
`questionnaires to use, and you're to return those to the
`clerk after the jury is selected and seated. You're not to
`scan them, you're not to Xerox them, you're not to copy
`them or retain that information in any way.
`We make it very clear to the citizens in the six
`counties that comprise this division that their personal
`information won't be kept by lawyers and then show up years
`later in somebody's database or somewhere else.
`So it's important that they be comfortable knowing
`that they can get full and complete and candid answers and
`not be concerned about that information being retained or
`copied by anybody.
`Again, follow the instructions of the deputy in
`charge with regard to the use and return of those hard copy
`juror questionnaires.
`Counsel, we have quite a few dispositive motions,
`we have quite a few disputed motions in limine, and we have
`a long list of exhibits from each side that we'll have to
`review for admissibility to formulate and complete the
`pre-admitted exhibit list before we can complete pre-trial.
`We're going to do everything we can do today.
`I've reserved tomorrow for additional pre-trial,
`if necessary. You need to make sure you're available
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`because it's quite likely we're not going to get everything
`completed today.
`And to the extent we have to reconvene tomorrow,
`my plan is to begin at 10:00 o'clock, not 9:00 o'clock
`tomorrow morning.
`Also, so you'll know, I have Monday, September the
`28th, also blocked off on my calendar in case two days is
`not enough and we have to have a third day. I hope that's
`not necessary. But we will complete the pre-trial process
`one way or the other before jury selection on October the
`1st.
`
`As I know you're aware because counsel on both
`sides have tried multiple jury trials before me, but just
`for clarity on the record, it's my intention to pre-admit
`all exhibits in this case. And I will review any disputed
`exhibits for admissibility or non-admissibility as a part
`of the pre-trial process.
`That will result in at the completion of the
`pre-trial process there being a defined universe of
`pre-admitted exhibits for both Plaintiff and Defendant,
`which will be have been either unobjected to, or they will
`have been reviewed for admissibility and found to be
`admissible under the rules of evidence by the Court.
`Those pre-admitted exhibits may be offered during
`the course of the trial by either party at any time without
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`a formal predicate or a formal introduction. That will
`save you time, and that, again, will maximize the
`designated trial time I've given both sides to present
`their cases.
`And as I mentioned, we will keep a running
`record -- running tally in the record from each side as to
`what they have used before the jury each day of the trial
`so that that can be clearly identified and those documents
`will be admitted exhibits. Any not used from the list of
`pre-admitted exhibits will be merely pre-admitted and not
`evidence in the case.
`I'm going to instruct that both sides jointly
`cooperate to prepare and deliver 10 juror notebooks to the
`Court, and I'm instructing that those be delivered not
`later than noon on Monday, September the 28th.
`Those juror notebooks should be simple three-ring
`binders. They should contain complete copies of each of
`the three patents-in-suit. They should contain a
`side-by-side comparison of any claim language that the
`Court has construed through the Markman process with one
`column on the left being on the claim language that was
`construed and the Court's construction or definition
`correspondingly situated on the right.
`You're not to include any analysis or anything
`further from the claim construction order the Court's
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`previously entered, simply the construed language and the
`construction of that language by the Court.
`You're to include a separate tabbed page for each
`witness that might testify in the case, either live or by
`deposition. Each page should have a head and shoulders
`photograph of the witness superimposed at the top of the
`page with the remainder of the page ruled lines for note
`taking.
`
`You should also include a new three-ring hole
`punched legal pad to be put in the back of the binder or
`notebook rather for additional note taking. And you should
`include a non-clicking ballpoint pen to go in the front
`flap. Again, those 10 copies should be delivered to
`chambers not later than noon on Monday the 28th of
`September.
`Also, counsel, in any patent infringement case,
`there is almost inevitably a battle of the experts, be it
`on infringement or validity or damages or any number of
`issues. I want to remind you that the expert witnesses in
`this case are confined to the limits of their expert
`reports.
`There are motions before the Court, and we'll take
`them up as a part of this pre-trial, seeking to strike
`certain portions of experts' reports. There are Daubert
`motions seeking to otherwise limit the experts' reports.
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`The reports, as they stand after pre-trial, after the
`Court's ruling on those motions, form the boundaries and
`parameters of what each expert should testify to.
`It is inherently disruptive when counsel raises
`objections during the course of the trial that an expert is
`attempting to testify beyond the bounds of their expert
`report. The Court does not have those reports memorized.
`The Court does not have them at my fingertips usually.
`There is only one way I can deal with that
`objection, and that is to send the jury out, get the actual
`report -- many of them, as you know, are hundreds of pages
`long -- and determine whether or not the question called
`for that was objected to seeks to elicit an answer or the
`statement that was made seeks to give an answer that goes
`outside the boundaries of those expert reports.
`Try to avoid the necessity of raising those
`objections. Make sure you've instructed your witnesses
`clearly -- your expert witnesses to stay within the
`confines of their reports.
`I have in earlier trials, not that I can ever
`recall with any of counsel present, but I have in earlier
`trials with other counsel seen that objection used for
`strategic purposes to either break a rhythm or to otherwise
`confuse or disrupt an examination or cross-examination of a
`witness that's designated as an expert. If at any time I
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`think that kind of a disruptive objection is being used for
`strategic purposes, I will not hesitate to impose an
`appropriate sanction.
`Also, counsel, at some point in the process, I
`will ask each side to give me a cell phone number and a
`name for a repr
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