Case 2:21-cv-00040-JRG Document 200 Filed 01/12/22 Page 1 of 19 PageID #: 9523
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`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`
`
`CASE NO. 2:21-cv-00040-JRG
`(Lead Case)
`
`JURY TRIAL DEMANDED
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`
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`CASE NO. 2:21-cv-00041-JRG
`(Member Case)
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`JURY TRIAL DEMANDED
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`GESTURE TECHNOLOGY
`PARTNERS, LLC,
`
`Plaintiff
`
`v.
`
`HUAWEI DEVICE CO., LTD.,
`HUAWEI DEVICE USA, INC.,
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`Defendants.
`
`
`GESTURE TECHNOLOGY
`PARTNERS, LLC,
`
`Plaintiff
`
`v.
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`SAMSUNG ELECTRONICS CO., LTD.
`AND SAMSUNG ELECTRONICS
`AMERICA, INC.,
`
`Defendants.
`
`SAMSUNG DEFENDANTS’ OMNIBUS MOTION IN LIMINE
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`

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`Case 2:21-cv-00040-JRG Document 200 Filed 01/12/22 Page 2 of 19 PageID #: 9524
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`TABLE OF CONTENTS
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`Page
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`I.
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`II.
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`V.
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`X.
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`MIL No. 1 (Opposed): Preclude Reference To Products That Are Not Accused Of
`Infringement ....................................................................................................................... 1
`MIL No. 2 (Opposed): Preclude Reference to Any Pre-Suit Contact, Pre-Suit
`Knowledge, or Willfulness ................................................................................................ 2
`III. MIL No. 3 (Opposed): Preclude Reference to Non-Reliance on Opinion of
`Counsel .............................................................................................................................. 3
`IV. MIL No. 4 (Opposed): Preclude Reference to Actions of Samsung or Its
`Employees as “Stealing,” “Copying,” “Pirating,” or Other Improper Taking ................... 4
`MIL No. 5 (Opposed): Preclude Reference to Any Duty of Samsung to
`Investigate GTP’s Patents Prior to the Litigation as Part of Its Business .......................... 4
`VI. MIL No. 6 (Opposed): Preclude Reference to Samsung’s Size, Wealth, Revenues,
`Profitability, Market Value, Market Share, or Similar Metrics ......................................... 5
`VII. MIL No. 7 (Opposed): Preclude Any Derogatory Reference To Samsung Being
`Foreign, Korean, To Its Corporate Identity or Culture, or The Like ................................. 6
`VIII. MIL No. 8 (Opposed): Preclude Reference to the Overall or Relative Size or
`Location of the Parties’ Law Firm or Trial Teams ............................................................ 8
`IX. MIL No. 9 (Opposed): Preclude Any Appeal to Sympathy Based On Dr. Pryor’s
`Age or Military Service ..................................................................................................... 9
`MIL No. 10 (Opposed): Preclude Reference To Samsung Not Respecting
`Intellectual Property Rights Generally ............................................................................... 9
`XI. MIL No. 11 (Opposed): Preclude Reference to Unrelated Litigations,
`Investigations, and Negative News Coverage of Samsung and Affiliated Entities ......... 10
`XII. MIL No. 12 (Opposed): Preclude Argument That Party’s Corporate
`Representative is Obligated to Prepare on Any Particular Topic or Is Charged
`with the Knowledge of Others Within the Company ....................................................... 12
`XIII. MIL No. 13 (Opposed): Preclude Reference to Absent Witnesses or Executives ........... 13
`XIV. MIL No. 14 (Opposed): Preclude Argument That Past Licenses Indicate that
`GTP’s Patents are Valid and/or Infringed ........................................................................ 14
`XV. MIL No. 15 (Opposed): Preclude Reference to Non-Asserted Patents .......................... 15
`XVI. MIL No. 16 (Opposed): Preclude Any Reference Bolstering the USPTO or Its
`Examiners ........................................................................................................................ 15
`
`-i-
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`

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`Case 2:21-cv-00040-JRG Document 200 Filed 01/12/22 Page 3 of 19 PageID #: 9525
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`Pursuant to the Court’s Sixth Amended Docket Control Order (Dkt. 155), Defendants
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`Samsung Electronics Co., Ltd. and Samsung Electronics America, Inc. (together, “Samsung”)
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`move the Court in limine to enter an order instructing Plaintiff Gesture Technology Partners, LLC
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`(“GTP”), its counsel, its representatives, and its witnesses (whether in person or by deposition) to
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`refrain from referring in any way, either directly or indirectly, to any matters which are the subject
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`of this motion in limine without first approaching the bench outside the hearing of the jurors and
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`obtaining a favorable ruling regarding the relevance and admissibility of the matters sought to be
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`presented to the jury. Samsung further moves the Court in limine to enter an order: (1) instructing
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`GTP’s counsel to discuss this motion in limine with each of its witnesses before they are presented
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`to testify; and (2) that information regarding any matters which are the subject of this motion in
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`limine be redacted from otherwise admissible documents, papers, and things offered by GTP as
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`exhibits and/or evidence in the trial of this case.
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`I.
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`MIL No. 1 (Opposed): Preclude Reference To Products That Are Not Accused Of
`Infringement
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`The Court should preclude GTP from introducing any evidence, testimony, or argument
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`regarding products that are not accused of infringement (whether because they are not Samsung
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`products, because they are products from outside the period of alleged infringement, or otherwise)
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`with respect to its claims of infringement and/or for damages. As examples, GTP’s proposed trial
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`exhibit list includes exhibits regarding Apple devices (PTX66–69, 72, 85), Huawei devices (PTX
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`65, 70, 73, 76, 78, 84, 90, 92, 95-100), Alcatel devices (PTX 71), LG devices (PTX 77, 83), and
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`Fujitsu devices (PTX 80). See Ex. 2. As another example, GTP’s exhibit list includes PTX 94
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`titled “
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`?” even though the EX2F
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`device is not accused of infringement. See Ex. 1. Further examples include products from outside
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`the period of alleged infringement, even if they are accused of infringement during the period.
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`-1-
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`Case 2:21-cv-00040-JRG Document 200 Filed 01/12/22 Page 4 of 19 PageID #: 9526
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`Such evidence, testimony, or argument is irrelevant to the issues at trial and is highly
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`prejudicial to Samsung. This Court has precluded evidence as to products that are not accused of
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`infringement on the same or similar grounds. See Order at 8, SEVEN Networks, LLC v. Google
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`LLC, 2:17-cv-00442-JRG (E.D. Tex., Jan. 18, 2019), Dkt. No. 606 (“SEVEN should be precluded
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`from offering evidence or argument regarding Android products that are not offered by Google
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`and not accused in this case, including any suggestion that these products may infringe or that
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`Google is liable for these products. This motion in limine is GRANTED-AS-AGREED.”); Order
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`at 3, Weatherford Tech. Hold. v. Tesco Corp., 2:17-cv-00456-JRG (E.D. Tex., Nov. 14, 2018),
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`Dkt. No. 166 (“The Court holds that the one and only proper comparison is the language of the
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`claims as compared to the accused products. Tesco is precluded from discussing third-party
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`products that are not accused in this case, without prior leave of Court.”) Any probative value is
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`substantially outweighed by the danger of unfair prejudice and jury confusion. See Fed. R. Evid.
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`401, 403.
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`II. MIL No. 2 (Opposed): Preclude Reference to Any Pre-Suit Contact, Pre-Suit
`Knowledge, or Willfulness
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`GTP admitted there was no pre-suit communication between GTP and Samsung, admitted
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`Samsung had no pre-suit knowledge of any of the Patents-in-Suit, and stipulated to dismiss with
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`prejudice all claims of willful infringement. The Court should preclude any evidence, testimony,
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`or argument that there was pre-suit contact or communication between GTP and Samsung; that
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`Samsung had pre-suit knowledge or awareness of GTP, Dr. Timothy Pryor, or the Patents-in-Suit;
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`or that Samsung infringed willfully, intentionally, deliberately, or the like.
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`As the party seeking enhanced damages, GTP bears the burden of showing it is entitled to
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`the relief sought. Erfindergemeinschaft UroPep GbR v. Eli Lilly & Co., No. 2:15-cv-1202-WCB,
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`2017 WL 2190055, at *1 (E.D. Tex. May 18, 2017)). GTP admitted that there were no pre-suit
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`-2-
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`

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`Case 2:21-cv-00040-JRG Document 200 Filed 01/12/22 Page 5 of 19 PageID #: 9527
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`communications between GTP and Samsung, and that Samsung had no pre-suit knowledge of any
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`of the Patents-in-Suit. Ex. 2 at Response Nos. 16, 38. Thus, under Fed. R. Civ. P. 26 and 37, the
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`Court should preclude any evidence, testimony, or argument to the effect that Samsung had any
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`contact or communication with GTP, or any knowledge or awareness of GTP, Dr. Pryor, or the
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`Patents-in-Suit, before August 30, 2016. See Enova Tech. Corp. v. Initio Corp., C.A. No. 10-04-
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`LPS, 2013 WL 12156023, at *1 (D. Del. Jan 31, 2013) (precluding plaintiff from offering
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`“improper or insufficient pre-suit knowledge” of the asserted patents); IGT v. All. Gaming Corp.,
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`No. 2:04-cv-1676-RCJ-RJJ, at *10 (D. Nev. Oct. 21, 2008) (excluding evidence on pre-suit
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`knowledge based on plaintiff’s interrogatory responses). Further, GTP stipulated to dismiss with
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`prejudice all claims of willful infringement. Dkt. No. 134 at 2. Thus, under Fed. R. Civ. P. 26 and
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`37, the Court should preclude any evidence, testimony, or argument to the effect that Samsung
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`infringed willfully, intentionally, deliberately, or the like.
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`Any such evidence, testimony, or argument irrelevant to the issues at trial and is highly
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`prejudicial to Samsung. Any probative value is substantially outweighed by the danger of unfair
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`prejudice and jury confusion. See Fed. R. Evid. 401, 403.
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`III. MIL No. 3 (Opposed): Preclude Reference to Non-Reliance on Opinion of Counsel
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`GTP initially asserted a claim of willful infringement. See 21-cv-00041, Dkt. No. 1 ¶¶ 46,
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`61, 76, 91. Samsung elected not to assert an advice of counsel defense against that claim. GTP
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`has since stipulated to dismiss with prejudice all claims of willful infringement. Dkt. No. 134 at
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`2. Any evidence, testimony, or argument that Samsung failed to obtain or elected not rely on an
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`opinion of counsel is irrelevant to the issues at trial and is highly prejudicial to Samsung. Any
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`probative value is substantially outweighed by the danger of unfair prejudice and jury confusion.
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`See Fed. R. Evid. 401, 403. Courts in this District regularly grant this type of motion in limine as
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`agreed. See Order at 5–6, Realtime Data, LLC v. Actian Corp, 6:15-cv-00463-RWS-JDL (E.D.
`
`-3-
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`

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`Case 2:21-cv-00040-JRG Document 200 Filed 01/12/22 Page 6 of 19 PageID #: 9528
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`Tex. May 4, 2017), Dkt. No. 551 (precluding plaintiff from stating defendant had a duty to obtain
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`an opinion of counsel, or draw any adverse inference from decision not to seek an opinion).
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`IV. MIL No. 4 (Opposed): Preclude Reference to Actions of Samsung or Its Employees
`as “Stealing,” “Copying,” “Pirating,” or Other Improper Taking
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`The Court should preclude any evidence, testimony, or argument characterizing, whether
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`explicitly or implicitly, actions of Samsung or any of its witnesses, employees, or representatives
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`as “stealing,” “copying,” “pirating,” or other charged words suggesting an improper taking from
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`GTP or Dr. Timothy Pryor. Any such evidence, testimony, or argument is irrelevant to the issues
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`at trial and highly prejudicial to Samsung. For these reasons, this Court often precludes plaintiffs
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`in patent cases from using words such as “copying,” “stealing,” “robbing,” or others that explicitly
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`or implicitly suggest an improper taking. See, e.g., Order at 4, Traxcell Techs., LLC v. AT&T, Inc.,
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`No. 2:17-cv-718-RWS-RSP (E.D. Tex. Oct. 1, 2019), Dkt. No. 429 (barring allegations of
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`copying); Order at 13, Huawei Techs. Co. v. T-Mobile US, Inc., No. 2:16-cv-00052 (E.D. Tex.
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`Sept. 29, 2017), Dkt. No. 440; Order at 6, Implicit, LLC v. Trend Micro, Inc., No. 6:16-cv-00080
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`(E.D. Tex. Oct. 3, 2017), Dkt. No. 253; Personalized Media Commc’ns, LLC v. Zynga, Inc., No.
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`2:12-cv-00068-JRG, 2013 WL 10253110, at *2 (E.D. Tex. Oct. 30, 2013) (barring allegations of
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`copying). Moreover, as discussed above, GTP has stipulated to dismiss with prejudice all claims
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`of willful infringement. Dkt. No. 134 at 2. Any probative value is substantially outweighed by
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`the danger of unfair prejudice and jury confusion. See Fed. R. Evid. 401, 403.
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`V. MIL No. 5 (Opposed): Preclude Reference to Any Duty of Samsung to Investigate
`GTP’s Patents Prior to the Litigation as Part of Its Business
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`The Court should preclude any evidence, testimony, or argument suggesting that Samsung
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`had a duty to investigate patents generally as part of its business. Courts routinely exclude such
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`arguments as to any supposed general duty to investigate patents. See, e.g., Genband US LLC v.
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`Metaswitch Networks Corp., 2:14-cv-33-JRG-RSP, 2015 WL 12911530, at *4 (E.D. Tex. Sep. 30,
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`-4-
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`

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`Case 2:21-cv-00040-JRG Document 200 Filed 01/12/22 Page 7 of 19 PageID #: 9529
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`2015) (“[Plaintiff] may not argue that [Defendant] had an affirmative duty to investigate possible
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`infringement.”); Key Energy Servs., Inc. v. C.C. Forbes, LLC, No. 2:08-cv-346-CE, 2011 WL
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`7429433, at *3 (E.D. Tex. June 3, 2011) (precluding argument or testimony that “there is a duty
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`to investigate patents of others”); Order at 5–6, Realtime Data, LLC v. Actian Corp, 6:15-cv-463-
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`ROW-JDL (E.D. Tex. May 4, 2017), Dkt. No. 551 (precluding plaintiff from stating defendant had
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`a duty to search for patents it might infringe, a duty to obtain an opinion of counsel, or draw any
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`adverse inference from defendant’s decision not to seek an opinion of counsel); Order at 2, SynQor,
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`Inc. v. Artesyn Techs., Inc., No. 2:07-cv-497 (E.D. Tex. Dec. 12, 2010), Dkt. No. 762 (“Plaintiff
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`may not argue or elicit testimony that defendants had a legal duty to investigate plaintiff’s
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`patents.”). Any such evidence, testimony, or argument is irrelevant to the issues at trial and is
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`highly prejudicial to Samsung. Any probative value is substantially outweighed by the danger of
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`unfair prejudice and jury confusion. See Fed. R. Evid. 401, 403.
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`VI. MIL No. 6 (Opposed): Preclude Reference to Samsung’s Size, Wealth, Revenues,
`Profitability, Market Value, Market Share, or Similar Metrics
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`The Court should preclude any evidence, testimony, or argument regarding financial or
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`other metrics that are not tied to GTP’s live allegations as to the Accused Products and Accused
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`Features at issue. Such metrics include, for example, Samsung’s overall size, wealth, revenues,
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`profitability, market value, market share, and the like. Such metrics further include Samsung’s
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`revenues and profitability attributable to the Accused Products and/or Accused Features, whether
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`collectively or individually. The Court should also preclude evidence, testimony, or argument
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`regarding the parties’ relative sizes, financial positions, or perceived sophistication. See Tr. of
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`Hr’g at 35:10–36:4, 38:11–19, SEVEN Networks, LLC v. Google, LLC, No. 2:17-cv-00442-JRG (E.D.
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`Tex. Dec. 18, 2018), Dkt. No. 582 (“I want to make it real clear, neither of these trials are going to be
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`about David versus Goliath.”); Intellectual Ventures II LLC v. FedEx Corp., No. 2:16-cv-00980-JRG,
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`-5-
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`Case 2:21-cv-00040-JRG Document 200 Filed 01/12/22 Page 8 of 19 PageID #: 9530
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`2018 WL10638138, at *6 (E.D. Tex. Apr. 26, 2018) (excluding any reference to “denigrate Defendants
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`by painting a David and Goliath scenario”). Any such evidence, testimony, or argument is irrelevant
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`to the issues at trial and highly prejudicial to Samsung, as it can only be for the improper purpose
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`of presenting very large numbers to the jury to create the impression that GTP’s damages claim is
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`small by comparison and/or suggesting that Samsung can afford to pay a larger damages award
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`than may otherwise be supported by relevant and admissible evidence. Any such evidence,
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`testimony, or argument “cannot help but skew the damages horizon for the jury, regardless of the
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`contribution of the patented component to this revenue.” See Uniloc USA, Inc. v. Microsoft Corp.,
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`632 F.3d 1292, 1320 (Fed. Cir. 2011) (noting that the “$19 billion cat was never put back into the
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`bag” and that neither cross-examination nor a curative jury instruction offset the resulting unfair
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`prejudice). Any minimal probative value is substantially outweighed by the danger of unfair
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`prejudice and jury confusion. See Fed. R. Evid. 401, 403; Rembrandt Wireless Techs., LP v.
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`Samsung Elecs. Co., No. 2:13-CV-213-JRG-RSP, 2015 WL 627430, at *5 (E.D. Tex. Jan. 31, 2015)
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`(granting motion to “exclude evidence of Samsung’s size, wealth, total revenues or profits”);
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`Parthenon Unified Memory Architecture LLC v. Apple, Inc., , No. 2:15-cv-621-JRG-RSP,
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`2016WL 7743510, at *2 (E.D. Tex. Sept. 21, 2016) (“PUMA”) (granting motion in limine to
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`“exclude evidence, testimony, or argument during trial [of] Apple’s wealth, profits, revenue, size,
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`etc.” unrelated to the profits or revenues concerning the accused products); see also Laser
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`Dynamics, Inc. v. Quanta Comput., Inc., 694 F.3d 51, 68 (Fed. Cir. 2012) (“Admission of such
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`overall revenues [of the accused product], which have no demonstrated correlation to the value of
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`the patented feature alone, only serve to make a patentee’s proffered damages amount appear
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`modest by comparison, and to artificially inflate the jury’s damages calculation beyond that which
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`is ‘adequate to compensate for the infringement.’”) (alteration added) (citation omitted).
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`VII. MIL No. 7 (Opposed): Preclude Any Derogatory Reference To Samsung Being
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`-6-
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`

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`Case 2:21-cv-00040-JRG Document 200 Filed 01/12/22 Page 9 of 19 PageID #: 9531
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`Foreign, Korean, To Its Corporate Identity or Culture, or The Like
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`In the unlikely event that GTP or its counsel, witnesses, or representatives would make a
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`derogatory or disparaging reference, comment, or allusion to the fact that Samsung is incorporated
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`in a foreign country, that some Samsung employees are not United States citizens, or the like, the
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`Court should preclude any such evidence, testimony, or argument as irrelevant to the issues at trial
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`and highly prejudicial to Samsung. See, e.g., Infernal Tech., LLC v. Sony Interactive Ent. Am.,
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`LLC, No. 2:19-cv-00248-JRG, 2021 WL 405813, at *7 (E.D. Tex. Feb. 3, 2021) (Order on Sony
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`MIL #10) (“The Court will exclude any pejorative references to a party’s location or origin, and
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`any attempts to characterize or denigrate a person or party as being from a particular location.”);
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`Order at 8, Image Processing Techs., LLC v. Samsung Elecs. Co., No. 2:20-cv-050-JRG-RSP (E.D.
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`Tex. June 8, 2020), Dkt. 171 (granting “Samsung’s MIL No. 13: Taking Jobs from American
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`Workers”); SimpleAir, Inc. v. Google Inc., No. 2:13-CV-587-JRG, 2014 WL 7406430 (E.D. Tex.
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`Mar. 12, 2014) (excluding arguments and evidence of plaintiff being “a foreign company”); Order
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`at 9, Versata Software, Inc. v. SAP Am., Inc., No. 2:07-cv-153 CE, (E.D. Tex. May 5, 2011), Dkt.
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`No. 500 (excluding references to defendant’s foreign status). Further examples include any
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`reference to Samsung as a “dynasty,” “conglomerate,” “Chaebol” or the like; any derogatory
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`reference to Samsung’s corporate identity or culture; any derogatory reference to Samsung’s
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`executive, management, or leadership structure or activities not bearing directly on the issues at
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`trial; and any reference to Samsung’s alleged influence on any governmental or governing body
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`or any employee or agent of the same.
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`This does not preclude evidence, testimony, or argument regarding the fact that Samsung
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`Electronics Co., Ltd. is headquartered in Korea or that certain activities occurred in Korea to the
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`extent it bears directly on GTP’s claims or Samsung’s defenses.
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`This Court has granted motions in limine precluding the disparagement or denigration of
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`-7-
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`Case 2:21-cv-00040-JRG Document 200 Filed 01/12/22 Page 10 of 19 PageID #: 9532
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`witnesses or individuals on the basis of nationality or place of origin. Whirlpool Corp. v. TST
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`Water, LLC, No. 2:15-cv-1528-JRG, 2017 WL 2931403, at *1 (E.D. Tex. Mar. 3, 2017) (“There
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`will be no disparaging or denigrating of witnesses by nationality or of any individual by nationality.
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`There will be no direct or indirect, overt or non-overt attempt to show that something is superior
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`or inferior based on its place of origin.”); see also Commil USA, LLC v. Cisco Sys., Inc., 720 F.3d
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`1361, 1370 (Fed. Cir. 2013), vacated in part on other grounds, 575 U.S. 632 (2015), and adhered
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`to in part, 813 F.3d 994 (Fed. Cir. 2015) (affirming order from the Eastern District of Texas
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`granting new trial where party “attempted to instill in the jury, through irrelevant references to
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`ethnicity and religion an ‘us versus them’ mentality”). Thus, any probative value is substantially
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`outweighed by the danger of unfair prejudice and jury confusion. See Fed. R. Evid. 401, 403. Any
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`mention of the nationality or place of origin of Samsung or its counsel, witnesses, employees, or
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`representatives should be very brief and strictly factual in nature, and only to the extent necessary
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`to advance legitimate purposes at trial.
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`VIII. MIL No. 8 (Opposed): Preclude Reference to the Overall or Relative Size or
`Location of the Parties’ Law Firm or Trial Teams
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`The Court should preclude any evidence, testimony, or argument regarding the overall or
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`relative size or location of the law firms retained by the parties. The Court should also preclude
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`any reference to the overall or relative size or the composition of the parties’ trial teams, including
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`but not limited to outside counsel and their employees or personnel, jury consultants and their
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`employees or personnel, or litigation support consultants and their employees or personnel. Such
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`information is irrelevant to the issues at trial and highly prejudicial to Samsung. Such information
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`may, for example, lead the jury to infer Samsung’s ability to pay a large judgment and thus skew
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`the jury’s determination as to damages. Such inferences are improper for the jury to consider. See
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`Panama Electric Co. v. Moyers, 259 F. 219 (5th Cir. 1919) (reversing judgment where plaintiff
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`-8-
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`Case 2:21-cv-00040-JRG Document 200 Filed 01/12/22 Page 11 of 19 PageID #: 9533
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`argued that his client was “a poor man” fighting a “rich corporation”). This Court has routinely
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`excluded reference to the relative sizes of law firms representing the parties. See, e.g., Dataquill
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`Ltd. v. Huawei Techs. Co Ltd., No. 2:13-CV-633-JRG-RSP, 2015 WL 11109697, at *1 (E.D. Tex.
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`June 11, 2015) (granting motion in limine excluding evidence of the relative sizes of law firms
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`representing the parties); Order at 2, Fiber Sys. Int’l Inc. v. Applied Optical Sys., Inc., No. 2:06-
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`cv-473 (E.D. Tex. Oct. 26, 2009) (Ward, J.), Dkt. No. 335 (granting motion in limine precluding
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`the parties “from discussing the comparative size of [the plaintiff] to [the defendant] (e.g., the
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`David versus Goliath argument)”) (alterations added). Any probative value is substantially
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`outweighed by the danger of unfair prejudice and jury confusion. See Fed. R. Evid. 401, 403.
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`IX. MIL No. 9 (Opposed): Preclude Any Appeal to Sympathy Based On Dr. Pryor’s Age
`or Military Service
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`The Court should preclude any evidence, testimony, or argument regarding Dr. Pryor’s age
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`or prior military service beyond those facts necessary and appropriate for introducing Dr. Pryor to
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`the jury. GTP has argued that Dr. Pryor “
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`
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`.” Dkt. No. 186 at 5. Dr. Pryor’s age,
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`like his prior military service, is irrelevant to the issues at trial and highly prejudicial to Samsung.
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`Such information may be used to improperly prompt sympathy from the jury, imply that Dr. Pryor
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`and/or GTP should be given the benefit of doubt as to its burdens of proof or otherwise, skew the
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`jury’s determination as to damages, or otherwise gain an unfair advantage at trial. Any probative
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`value is substantially outweighed by the danger of unfair prejudice and jury confusion. See Fed.
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`R. Evid. 401, 403.
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`X. MIL No. 10 (Opposed): Preclude Reference To Samsung Not Respecting
`Intellectual Property Rights Generally
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`The Court should preclude any evidence, testimony, or argument suggesting that Samsung
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`does not respect intellectual property rights generally, has a history or pattern of infringement, or
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`-9-
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`Case 2:21-cv-00040-JRG Document 200 Filed 01/12/22 Page 12 of 19 PageID #: 9534
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`the like—i.e., “corporate character evidence” or its equivalent.
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`Any such evidence, testimony, or argument is irrelevant to the issues at trial and highly
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`prejudicial to Samsung. Any such allegation does not bear on whether Samsung infringes the
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`Patents-in-Suit, whether the asserted claims are valid, or the amount of damages that may be
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`appropriate. See Tr. of Hr’g at 178:4–179:5, Garrity Power Services LLC v. Samsung Electronics
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`Co. Ltd. , 2:20-cv-00269-JRG (E.D. Tex. Dec. 13, 2021), Dkt. No. 228 (granting defendants MIL
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`to exclude “evidence, argument, or suggestion that Samsung doesn’t care about intellectual
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`property”); Order at 14, Huawei Techs. Co. v. Verizon Commc’ns Inc., 2:20-cv-00030-JRG (E.D.
`
`Tex. Jul. 2, 2021), Dkt. No. 462 (granting plaintiff’s motion to exclude “argument, evidence,
`
`testimony, or reference designed to insinuate that Huawei engages in intellectual property theft or
`
`other bad acts”); Mobile Telecomms. Techs., LLC v. ZTE (USA) Inc. No. 2:13-cv-946-JRG, 2016
`
`WL 8260584, at *2 (E.D. Tex. July 22, 2016) (excluding references and argument regarding
`
`“unrelated litigations, investigations, or accusations involving the parties or their affiliates or
`
`principles”); PUMA, 2016 WL 7743510, at *3 (excluding references that defendant does not
`
`respect intellectual property); DataTreasury Corp. v. Wells Fargo & Co., No. 2:06-cv-72 (DF),
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`2010 WL 11538713, at *14 (E.D. Tex. Feb. 26, 2010) (excluding unfavorable references to
`
`defendant unrelated to disputed issues).
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`Such evidence, testimony, or argument would be unfairly prejudicial and poses a serious
`
`risk of confusing the issues, misleading the jury, and wasting time. Any probative value that may
`
`exist is substantially outweighed by the danger of unfair prejudice and jury confusion. See Fed.
`
`R. Evid. 401, 403.
`
`XI. MIL No. 11 (Opposed): Preclude Reference to Unrelated Litigations, Investigations,
`and Negative News Coverage of Samsung and Affiliated Entities
`
`The Court should preclude any evidence, testimony, or argument regarding unrelated
`
`-10-
`
`

`

`Case 2:21-cv-00040-JRG Document 200 Filed 01/12/22 Page 13 of 19 PageID #: 9535
`
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`litigations or investigations involving Samsung and its affiliates or negative news coverage of
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`Samsung and its affiliates—i.e., “corporate character evidence” or its equivalent.
`
`For example, reference to the number of times Samsung has been sued for or accused of
`
`infringing intellectual property rights, or whether other courts or juries have found adversely to
`
`Samsung in such cases, is unduly prejudicial and risks confusing the jury, especially because
`
`extensive additional evidence would be necessary to put that evidence in context. References to
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`patent litigation actions brought by Samsung and its affiliates are similarly irrelevant and unfairly
`
`prejudicial. Further, references to negative news coverage of Samsung bears no relation to the
`
`claims or defenses in this action, creates unfair prejudice, and poses a serious risk of misleading,
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`inflaming, or confusing the jury. See Fed. R. Evid. 401, 403.
`
`Courts in this district and elsewhere routinely preclude reference to unrelated litigations,
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`investigations, or purported bad acts involving litigants and related entities. See Tr. of Hr’g at 177-
`
`78, Clear Imagining Rsch., LLC, v. Samsung Elecs. Co. Ltd., 19-cv-326-JRG (E.D. Tex. Mar. 30,
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`2021), Dkt. No. 304 (granting defendants motion in limine precluding either party from making
`
`reference to other litigations); Order at 3, Optis Wireless Tech., LLC v. Apple Inc., 2:19-cv-00066-
`
`JRG (E.D. Tex. Aug. 9, 2021), Dkt. No. 668 (granting motion in limine precluding plaintiff from
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`referring to evidence, arguments, verdicts, judgments, or orders from other cases); Order at 8, Image
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`Processing Techs., LLC v. Samsung Elecs. Co., No. 2:20-cv-00050-JRG-RSP (E.D. Tex. June 8,
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`2020), Dkt. No. 171 (granting “Samsung’s MIL No. 10: Other Samsung Litigations” and
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`“Samsung’s MIL No. 12: Negative Unrelated News”); Order at 3, Imperium IP Holdings
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`(Cayman), Ltd. v. Samsung Elecs. Co., Ltd., No. 4:14-cv-371, (E.D. Tex. Feb. 1, 2016), Dkt. No.
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`231 (“Any argument, evidence, or testimony referring or relating to the Apple v. Samsung
`
`litigations or any other lawsuits with Samsung as a party not involving the patents-in-suit,
`
`including any in which Samsung has been found to infringe patents is excluded.”); Mobile
`
`-11-
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`

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`Case 2:21-cv-00040-JRG Document 200 Filed 01/12/22 Page 14 of 19 PageID #: 9536
`
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`Telecomms Techs.,2016 WL 8260584, at *2 (“The parties SHALL NOT introduce any references,
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`evidence, testimony (including expert testimony), or argument regarding unrelated litigations,
`
`investigations, or accusations involving the parties or their affiliates or principles.”); Ion, Inc.,
`
`2009 WL 10677596, at *3 (“The parties’ actions in other cases are irrelevant to the present case.”).
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`There is no reason to depart from this precedent here. Any reference to other litigations,
`
`investigations, or purported bad acts of Samsung and its affiliates is irrelevant to the issues this
`
`jury will have to decide. Even if GTP could articulate a scintilla of probative value, it would be
`
`substantially outweighed by the dangers of unfair prejudice, confusing the issues, and misleading
`
`the jury. See Fed. R. Evid. 401, 403.
`
`XII. MIL No. 12 (Opposed): Preclude Argument That Party’s Corporate Representative
`is Obligated to Prepare on Any Particular Topic or Is Charged with the Knowledge
`of Others Within the Company
`
`The Court should preclude any evidence, testimony, or argument suggesting that a party’s
`
`corporate representative at trial is obligated to prepare on any particular topic or is charged with
`
`the knowledge of others within the company. Such assertions are unsupported by applicable law,
`
`irrelevant to the issues at trial, and highly prejudicial to Samsung.
`
`Unlike a deponent designated under Federal Rule of Civil Procedure 30(b)(6), a corporate
`
`representative at trial is not given a list of topics for questioning. Further, Rule 602 prohibits all
`
`fact witnesses, including corporate representatives, from offering testimony beyond their personal
`
`knowledge. See Fed. R. Evid. 602; see also Union Pump Co. v. Centrifugal Tech. Inc., 404 F.
`
`App’x. 899, 907–08 (5th Cir. 2010) (per curiam) (holding a “corporate representative may not
`
`testify to matters outside his own personal knowledge ‘to the extent that information is hearsay not
`
`falling within one of the authorized exceptions’”). The Court should therefore preclude any
`
`suggestion that a party’s corporate representative at trial is obligated to prepare on any particular
`
`topic or is charged with the knowledge of others within the company. Order at 48–49,
`
`-12-
`
`

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`Case 2:21-cv-00040-JRG Document 200 Filed 01/12/22 Page 15 of 19 PageID #: 9537
`
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`DataTreasury Corp. v. Wells Fargo & Co., No. 2:06-cv-72-DF (E.D. Tex. Oct. 5, 2010), Dkt. 2392
`
`(granting defendants’ motion seeking order that “[t]he Parties should be precluded from asserting
`
`that a person who is acting as a Party’s corporate representative at trial (1) has a legal obligation
`
`to prepare to testify on any particular topic, (2) is charged with the knowledge of others within
`
`the company, or (3) has the ability to bind the Party with his or her trial testimony”).
`
`Accordingly, for example, GTP should not be permitted to suggest to the jury that any
`
`Samsung witness is expected to have knowledge regarding every topic that might be relevant to
`
`the case. For example, if a Samsung corporate representative works primarily in a marketing role,
`
`GTP should not be permitted to suggest that he or she should be prepared to testify as to corporate
`
`policies for dealing with patent infringement allegations, or that he or she should be well-versed
`
`in the technica