Case 5:16-cv-00179-RWS Document 229 Filed 07/02/18 Page 1 of 183 PageID #: 12237
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TEXARKANA DIVISION
`
`MAXELL, LTD. )
`
` DOCKET NO. 5:16cv179
`-vs- )
` Texarkana, Texas
` ) 8:36 a.m.
`ZTE USA, INC. June 18, 2018
`
` TRANSCRIPT OF IN CHAMBERS PRETRIAL CONFERENCE AND
`VOIR DIRE OF THE JURY PANEL
` MORNING SESSION
` BEFORE THE HONORABLE ROBERT W. SCHROEDER III,
` UNITED STATES DISTRICT JUDGE,
`
`A P P E A R A N C E S
`
`
`FOR THE PLAINTIFF:
`
`MR. JAMIE B. BEABER
`MAYER BROWN LLP
`1999 K Street, NW
`Washington, DC 20006
`
`MR. GEOFFREY P. CULBERTSON
`PATTON TIDWELL & CULBERTSON, LLP
`2800 Texas Blvd.
`Texarkana, TX 75503
`
`COURT REPORTER: MS. CHRISTINA L. BICKHAM, RMR, CRR
` FEDERAL OFFICIAL COURT REPORTER
` 300 Willow, Ste. 221
` Beaumont, TX 77701
`
`
`Proceedings taken by Machine Stenotype; transcript was
`produced by a Computer.
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`1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TEXARKANA DIVISION
`
`MAXELL, LTD. )
`
` DOCKET NO. 5:16cv179
`-vs- )
` Texarkana, Texas
` ) 8:36 a.m.
`ZTE USA, INC. June 18, 2018
`
` TRANSCRIPT OF IN CHAMBERS PRETRIAL CONFERENCE AND
`VOIR DIRE OF THE JURY PANEL
` MORNING SESSION
` BEFORE THE HONORABLE ROBERT W. SCHROEDER III,
` UNITED STATES DISTRICT JUDGE,
`
`A P P E A R A N C E S
`
`
`FOR THE PLAINTIFF:
`
`MR. JAMIE B. BEABER
`MAYER BROWN LLP
`1999 K Street, NW
`Washington, DC 20006
`
`MR. GEOFFREY P. CULBERTSON
`PATTON TIDWELL & CULBERTSON, LLP
`2800 Texas Blvd.
`Texarkana, TX 75503
`
`COURT REPORTER: MS. CHRISTINA L. BICKHAM, RMR, CRR
` FEDERAL OFFICIAL COURT REPORTER
` 300 Willow, Ste. 221
` Beaumont, TX 77701
`
`
`Proceedings taken by Machine Stenotype; transcript was
`produced by a Computer.
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`Case 5:16-cv-00179-RWS Document 229 Filed 07/02/18 Page 2 of 183 PageID #: 12238
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`FOR THE PLAINTIFF:
`
`MR. ALAN GRIMALDI
`MR. KFIR B. LEVY
`MR. JAMES A. FUSSELL III
`MR. BRYAN C. NESE
`MR. WILLIAM J. BARROW
`MS. TIFFANY MILLER
`MR. BALDINE B. PAUL
`MR. SAQIB J. SIDDIQUI
`MR. CLARK S. BAKEWELL
`MAYER BROWN LLP
`1999 K. Street, NW
`Washington, DC 20006
`
`FOR THE DEFENDANT:
`
`MR. ERIC H. FINDLAY
`FINDLAY CRAFT PC
`102 N. College Ave., Ste. 900
`Tyler, Texas 75702
`
`MS. CALLIE A. BJURSTROM
`MR. HOWARD N. WISNIA
`MS. NICOLE S. CUNNINGHAM
`MR. SARA J. O'CONNELL
`PILLSBURY WINTHROP SHAW PITTMAN LLP
`501 W. Broadway, Ste. 1100
`San Diego, CA 92101-3575
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`Case 5:16-cv-00179-RWS Document 229 Filed 07/02/18 Page 3 of 183 PageID #: 12239
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`P R O C E E D I N G S
`(In Chambers Pretrial Conference)
`THE COURT: Okay. We're on the record back in
`chambers. It's Monday, June the 18th. I don't know if you
`all have met Chris Bickham, who will be our court reporter
`throughout the week.
`Until Ms. Bickham is familiar with you all during
`the course of our discussion back here in chambers, let me
`ask you to identify yourselves for the record before you
`speak.
`
`I have asked each side to give me a little
`two-sentence statement about your client so that when I get
`into my part of the voir dire, when I, you know, indicate who
`the parties are and whether they have any familiarity with
`them, I'll be able to give a short statement about it.
`I have ZTE's, and I guess someone is working on one
`for the Plaintiff; is that right?
`MR. FUSSELL: We have that. We typed it up. I
`think we'll --
`THE COURT: Okay. Got it.
`You should have received rulings on the outstanding
`motions in limine, as we discussed on the call last week.
`And I know ZTE had filed a motion to dismiss for
`improper venue.
`Having considered the briefing on that, which was
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`Case 5:16-cv-00179-RWS Document 229 Filed 07/02/18 Page 4 of 183 PageID #: 12240
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`only fully briefed last week, I'm going to deny the motion.
`I think under Micron and subsequent cases, issues on this
`subject are very fact-specific. And having considered the
`specific facts present in this case and in light of the fact
`that the motion was only filed one month ago and in light of
`the litigation and conduct of the parties, the motion will be
`denied.
`
`Are there any other pretrial issues that we need to
`discuss? I know the parties had said they would reduce the
`number of disputes that we would have to deal with at trial.
`Has there been any progress made on that?
`MR. WISNIA: Your Honor, both parties, they reduced
`their claims, and we reduced some of the prior art and
`reduced -- for certain patents, we're not asserting prior art
`any longer.
`THE COURT: Okay. Mr. Wisnia was speaking.
`MR. WISNIA: My apologies.
`MR. BEABER: Mr. Beaber for Maxell.
`We agree with that. I think just yesterday further
`prior art were -- was also dropped for three of the patents.
`So I think -- Your Honor entered the pretrial order
`today. It doesn't reflect the events of yesterday. So we
`may need to further amend that to reflect those prior arts.
`And I think we potentially may drop claims in light of that
`additional prior art. We're still considering that, given
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`Case 5:16-cv-00179-RWS Document 229 Filed 07/02/18 Page 5 of 183 PageID #: 12241
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`the timing.
`THE COURT: Okay. All right.
`MR. BJURSTROM: Your Honor, may I ask a question?
`This is Callie Bjurstrom.
`You mentioned that the rulings on the motions in
`limine had come out. There were a couple that we had talked
`about on the telephonic conference, No. 4 for ZTE USA and
`No. 10 that went to willfulness and those 408 communications,
`you carried those, and I just wanted to be clear that they're
`still carried.
`THE COURT: Has the order gone --
`LAW CLERK HALEY: It's sent to docketing. I don't
`know if it's --
`THE COURT: Oh. We -- we've entered an order this
`
`morning.
`
`MS. BJURSTROM: Oh. I didn't see those.
`THE COURT: It's either docketed or will shortly be
`docketed.
`MS. BJURSTROM: Okay.
`LAW CLERK HALEY: It's docketed.
`THE COURT: All right. Take a look at your e-mail.
`MS. BJURSTROM: Okay.
`THE COURT: And if you have any questions on that,
`obviously, after you've reviewed it, feel free to bring it
`up.
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`Case 5:16-cv-00179-RWS Document 229 Filed 07/02/18 Page 6 of 183 PageID #: 12242
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`My sense is this case is going to take about 10
`days to try. So, if we start today and move relatively
`smoothly through voir dire, hopefully, we'll get a jury
`seated by the end of the day today. That would be my
`expectation.
`I know it's somewhat more complicated in light of
`the circumstances we find ourselves in, but I do think
`letting the attorneys conduct a full voir dire with no time
`limits and creating a procedure by which we can individually
`voir dire jurors who have some knowledge or potentially have
`some knowledge about the parties, back in chambers, we'll be
`able to get a fair and impartial jury seated by the end of
`the day.
`
`But, obviously, we'll just see how things develop.
`If that works that way and we get done in 10 days, that will
`put us to next Friday, June the 29th.
`Do we all think -- do the parties agree that the
`case can be tried by next Friday?
`MS. BJURSTROM: Yes.
`MR. BEABER: We do, Your Honor.
`MR. WISNIA: Yes.
`THE COURT: Okay. All right. If you don't, you
`know, I need to talk to the jury about potential time
`conflicts because that would move into the following week,
`which is a holiday; and I think we'd all prefer to avoid
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`Case 5:16-cv-00179-RWS Document 229 Filed 07/02/18 Page 7 of 183 PageID #: 12243
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`that.
`
`So, it sounds like we'll just treat Friday as a
`hard deadline. And to the extent we need to run our trial
`days longer, depending on how the schedule shapes up, we
`can -- we can do that.
`MR. BEABER: One scheduling, Your Honor, issue, if
`I may? James Beaber, if I may, on behalf of Maxell. We had
`sent an e-mail to the Court yesterday on Dr. Michael
`Caloyannides. He's our expert on the '317 and '193 patents.
`He has a scheduling conflict that's going to cause
`him to have to leave on Wednesday morning. So we have talked
`to the other side, and we think it's not going to be an issue
`to get his testimony in either today and hopefully conclude
`it by tomorrow. But with the unlimited time for voir dire,
`there might be an issue. So we had asked if the Judge could
`stay over for maybe an extra hour today or tomorrow to
`accommodate that.
`THE COURT: I -- I reviewed the e-mail and all of
`that's fine with me. We'll -- we'll work it out. We'll
`either go late today, depending on how things go; or we'll go
`late tomorrow.
`MR. BEABER: Thank you. We appreciate that.
`THE COURT: Yeah.
`Do we still have seven patents in this case?
`MR. BEABER: We do, Your Honor.
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`Case 5:16-cv-00179-RWS Document 229 Filed 07/02/18 Page 8 of 183 PageID #: 12244
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`THE COURT: Okay. And those would be -- let me
`make sure I have all of this right. Based on the pretrial
`order that was filed, the current asserted claims are claim 1
`of the '193, claims 1 through 3 of the '317 Patent, claims 5
`and 6 of the '493, claims 1 and 2 of the '729, claims 1 and 8
`of the '491, claim 1 of the '695 and claims 1 and 2 of the
`'794.
`
`Is all that correct?
`MR. BEABER: That's correct.
`THE COURT: Okay. And ZTE maintains 102 and 103
`challenges to all of the patents?
`MR. WISNIA: No longer.
`THE COURT: Oh, I'm sorry.
`MR. WISNIA: So --
`THE COURT: You're right.
`MR. WISNIA: -- we reduced that and --
`MR. BEABER: This was --
`THE COURT: Yeah, right.
`MR. BEABER: -- the updated from yesterday.
`MR. WISNIA: So we're dropping the 102 and 103
`challenges with respect to the '794, the 7 -- the camera
`patents, '729 and '493.
`MR. BEABER: Correct.
`MR. WISNIA: I believe those are the ones we told
`you yesterday.
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`Case 5:16-cv-00179-RWS Document 229 Filed 07/02/18 Page 9 of 183 PageID #: 12245
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`MR. BEABER: Yes.
`THE COURT: '794, '729 and --
`MS. BJURSTROM: '493.
`THE COURT: '493.
`MR. BEABER: And for the two camera patents, I
`think we're going to trim it back to just the independent
`claims. So, I think it's five for the -- if I may, Your
`Honor, look at the claims.
`THE COURT: Yes, certainly.
`MR. BEABER: I don't have them.
`Claim -- yeah, claim 5 for the '493, and then
`claim 1 for the '729.
`All right. There's a 112 challenge to the '317
`patent; is that correct? Still?
`MR. WISNIA: Currently, yes, your Honor.
`THE COURT: Okay. And 101 challenges to the '317
`and '794 patents. All of that is still maintained?
`MR. WISNIA: Correct, your Honor.
`THE COURT: Okay. All right.
`Opening statements, 45 minutes. Direct and
`cross-examination, 23 hours per side. And closing
`statements -- did I give you a time on closing statements?
`MS. BJURSTROM: An hour.
`MR. FINDLAY: An hour?
`MS. BJURSTROM: It was an hour.
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`Case 5:16-cv-00179-RWS Document 229 Filed 07/02/18 Page 10 of 183 PageID #: 12246
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`THE COURT: Was it an hour?
`MR. LEVY: It was.
`MS. BJURSTROM: Yeah.
`THE COURT: Okay. I thought it was 45.
`MS. BJURSTROM: No. It's an hour.
`THE COURT: We'll go with an hour.
`So I don't have a final number on our panelists,
`but I had asked for a panel size of 40. So if -- we'll --
`we'll know that relatively quickly.
`I reviewed very carefully ZTE's proposal for the
`voir dire process, and I understand -- saw the e-mail
`exchange. I think it's only opposed in part; is that
`correct?
`
`MR. CULBERTSON: That's correct.
`THE COURT: And that's with respect to the daily
`polling of the jury.
`You know, my thought is I'm more than willing to
`follow the voir dire plan that ZTE submitted generally. I am
`incredibly reluctant to poll the jury every day about whether
`they've heard something in the news or online about either
`party. I really do think in some ways it sort of invites
`that investigation.
`I'm unaware of any cases out there that suggest
`it's appropriate to do that. So in light of having reviewed
`the law, I just don't think it's appropriate in this case.
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`Case 5:16-cv-00179-RWS Document 229 Filed 07/02/18 Page 11 of 183 PageID #: 12247
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`We -- you know, I -- I -- you'll get tired of
`hearing me give the instruction at the end of the day about
`not reading anything or talking to anybody. You know, this
`is my 24th jury trial.
`We've tried cases together, Mr. Findlay. I -- I am
`firmly convinced that jurors work very, very hard to get it
`right and that they are incredibly conscientious about
`following the rules. So --
`MR. FINDLAY: Not -- not to argue with the Court,
`but may I raise one point on that?
`THE COURT: Yes.
`MR. FINDLAY: Eric Findlay for ZTE USA.
`Your Honor, that -- I -- we respect your decision.
`We do still have that request and want it to be in the
`record.
`
`But let me give you a little bit more insight to
`our thinking on the whole issue that we're dealing with. We
`were, I can say, somewhat -- assuming that the answers are
`accurate in the questionnaires -- and I have no reason to
`think they're not -- we were pleased that no one reported any
`negative impressions of ZTE, at least initially.
`The concern that we do have, and the reason for
`that request, is if that's the case and we can get eight
`folks in the box that don't have any pre-notions of ZTE or
`any of the negative press out there, I think that's great.
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`Case 5:16-cv-00179-RWS Document 229 Filed 07/02/18 Page 12 of 183 PageID #: 12248
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`Our concern is getting infected or tainted during the course
`of the trial.
`One thing -- and I apologize, Your Honor. I forget
`your instructions right off the bat to the entire panel. But
`we would request that the entire panel, at the very beginning
`of the voir dire process, be given your caution to not talk
`about anything amongst themselves, to not research anything.
`Rather -- we'd like that to happen as soon as it can this
`morning as close --
`THE COURT: I will --
`MR. FINDLAY: -- to just the eight at the end of
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`the day.
`
`THE COURT: I will absolutely do that. I will
`absolutely do that. I'll do it -- you know the sort of
`general thing I go through at the beginning --
`MR. FINDLAY: Yes, sir.
`THE COURT: -- about the history of the jury trial,
`and I'll almost immediately before I get into asking any
`questions, I'll give them precisely that instruction.
`MR. FINDLAY: Okay. Thank you, Your Honor.
`Because the other -- again, just to express to the
`Court our thinking and where our -- where our concerns lie,
`about 20 of the folks answered the questionnaire that they
`get all or some of their news from the Internet. That raises
`a flag with us.
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`Case 5:16-cv-00179-RWS Document 229 Filed 07/02/18 Page 13 of 183 PageID #: 12249
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`I'm going to try to gently ask them to give us an
`idea of what you do to gather news on a daily basis, that
`sort of thing. And so that, again, is the concern that we
`have from outside information getting to those folks. But I
`appreciate your Honor's sensitivity to the issue, and thank
`you for your --
`THE COURT: I certainly understand. I think we all
`need to be careful about doing anything that could
`potentially infect the whole panel. So we'll just be
`sensitive to that on both sides so that we don't get any --
`into any generalized discussion about the parties and what
`they do and any of the issues that we're concerned about.
`So I think we want to just be sensitive to that,
`and we'll spend as much time back here in chambers as we need
`to.
`
`MR. FINDLAY: Thank you, Judge.
`THE COURT: Okay. Now, this was a little unclear
`in the e-mail. Do you all want to deal with the ZTE-related
`cause challenges before you do your regular voir dire or
`after that, with the cause and the hardship challenges at the
`end?
`
`MR. FINDLAY: I think it can be done then. Our
`thought was that if Your Honor can ask that question, does
`anybody know anything about the parties, those people that
`raise their hands, we'll kind of make a mental note, and they
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`Case 5:16-cv-00179-RWS Document 229 Filed 07/02/18 Page 14 of 183 PageID #: 12250
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`will be called up during the cause challenge portion.
`THE COURT: After you've done your voir dire?
`MR. FINDLAY: After we go through and do our
`regular questioning.
`THE COURT: Okay.
`MR. FINDLAY: So we get all out of the way.
`THE COURT: Is that fine with the Plaintiffs?
`MR. BEABER: No problem.
`MR. FINDLAY: I think that was fine with
`Mr. Culbertson.
`THE COURT: Okay.
`MR. FINDLAY: So we don't go back and forth, I
`guess. It's more efficient.
`THE COURT: So -- so I'll -- I'll just ask them to
`identify themselves, and we'll all keep track of who raises
`their hand. And then you all will do your voir dire, and
`however long that takes, that takes.
`At some point we'll probably have to break for
`lunch. And then once all of your voir dire is completed,
`whether it's before or after lunch, we will ask the people
`who have identified themselves as having some knowledge of
`ZTE or Maxell to come back in chambers, and we'll just voir
`dire them individually.
`MS. BJURSTROM: Okay.
`THE COURT: Does all that make sense?
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`MR. FINDLAY: Yes.
`MS. BJURSTROM: Yes.
`THE COURT: Okay. So I did add that instruction to
`my normal statements to the jury. The question I intend to
`ask at the end of my voir dire is: Have you heard of, read
`about, or seen anything online, including anything on social
`media, Facebook, Twitter, Instagram, Snapchat, et cetera, or
`seen anything on TV or in print about either Maxell, Hitachi,
`or ZTE? If you're not sure, please raise your hand if you
`think you might have.
`MS. BJURSTROM: Okay.
`THE COURT: All right. I've received the
`information of a Japanese interpreter that Maxell seeks to
`use, Sadaaki Matsutani?
`MR. BEABER: Correct.
`THE COURT: Is that correct?
`Okay. Is this the translator who was used for the
`depositions in this case?
`MR. BEABER: It was not. And our hope, Your Honor,
`we're going to attempt to have Mr. Nakamura testify in
`English. It's his second language. He -- where we would
`need a translator is really for technical issues, technical
`terms. So we're going to try to do our best to do it in
`English, if at all possible, but we will have the translator
`on standby if necessary.
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`THE COURT: All right.
`MR. WISNIA: Your Honor, we would object to that
`during Mr. Nakamura's deposition. I asked him if he would
`testify in English at the trial. He told me no, he would
`testify in his mother tongue.
`I believe that's true, and I asked almost every one
`of these witnesses. I believe I would make that
`representation.
`We were forced to take their deposition in
`Japanese. I will tell you that the deposition started at
`8:30 in the morning, ended at 11:45 only because Mr. Fussell
`and I were able to -- to agree on a couple things.
`Otherwise, it would have went on for another three or four
`hours because of the delay in the translation.
`We think it's -- that we're going to be prejudiced
`in -- especially during the cross-examination if he's
`testifying in English and now I -- now I get to cross-examine
`him and play some clip where he's speaking Japanese, and it's
`going to lose the jury's attention, and they're going to be
`more focused on his in-court English testimony.
`THE COURT: When will he testify?
`MR. BEABER: He will likely testify -- well,
`depending on voir dire, we're hoping on Tuesday
`afternoon-ish.
`THE COURT: Okay.
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`Case 5:16-cv-00179-RWS Document 229 Filed 07/02/18 Page 17 of 183 PageID #: 12253
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`MR. BEABER: Possibly on Wednesday morning, but I
`would hope that he would probably --
`THE COURT: Okay.
`MR. BEABER: -- go on on Tuesday afternoon.
`THE COURT: All right. I'll -- I'll give you an
`opportunity to make a full record at the appropriate time,
`and I'll consider your objection.
`MR. WISNIA: Thank you.
`THE COURT: I'll have to do some basic voir dire
`questions to qualify the interpreter, and I -- I don't know
`if you all have thought about where the interpreter will sit,
`but I'm open to however you want to do that.
`MR. BEABER: I think there's a -- there's a chair
`right next to the witness stand. If that's appropriate, Your
`Honor, we would suggest that.
`THE COURT: That's fine. It's fine with me.
`Let's see.
`MR. CULBERTSON: When would you like to do that
`voir dire?
`THE COURT: Of the --
`MR. CULBERTSON: Of the interpreter.
`THE COURT: -- interpreter? We'll do it before we
`start with the jury in the morning.
`MR. CULBERTSON: Okay.
`THE COURT: Or -- or some other time where we're
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`Case 5:16-cv-00179-RWS Document 229 Filed 07/02/18 Page 18 of 183 PageID #: 12254
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`not wasting the jury's time doing it.
`I don't think the jury instructions are in terribly
`good shape. I don't know if you all have taken another crack
`at that, but I would urge you to do so.
`Now, we're a long way from deliberations and the
`end of the case, but you all ought to continue to work on
`that.
`
`MR. BEABER: Understood, Your Honor.
`THE COURT: And I'll -- I'll remind you.
`I don't think I have anything else. Any other
`concerns you all need to raise?
`MR. BEABER: There was one other question on
`confidentiality going on and off the confidential record for
`at least one witness, Dr. Caloyannides.
`THE COURT: Yeah. I understand the concern with
`that, and I -- I don't have any problem with that. I mean,
`I -- otherwise, I think it's best to segregate all of that
`material and do it in place, but I think because of the -- of
`the two patents it makes sense to do it in that case.
`I have looked at the slides that ZTE has objected
`to in terms of the voir dire. I'm -- with the exception --
`I'm fine with them with the exception of the scales of
`justice. I think those are quite difficult to interpret so
`I'd ask that you not use the clear and convincing and the
`preponderance of the evidence scales of justice.
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`Case 5:16-cv-00179-RWS Document 229 Filed 07/02/18 Page 19 of 183 PageID #: 12255
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`MR. CULBERTSON: Pull each of the scales?
`THE COURT: Just pull the scales.
`MR. CULBERTSON: Thank you.
`MR. LEVY: Your Honor?
`THE COURT: Yes.
`MR. LEVY: Just a question regarding timing as a
`matter of procedure. Through the case when there are
`objections to -- obviously, the objections to the slides for
`voir dire need to be addressed now.
`But -- so that we have the right people here at the
`right time, when will Your Honor be addressing the objections
`on, say, slides for the opening or slides for the witness?
`Will it be on the morning of the day that they will be given
`or right before the witness goes or --
`THE COURT: Well, we'll -- we'll -- I guess it just
`depends on how long voir dire goes. If we get to openings
`today, which, you know, we can be optimistic, we'll address
`those, you know, right before that.
`I'd like to do everything I can to save wasting the
`jury's time, so we'll stay late when we can deal with things
`outside of their presence, after they've gone home for the
`end of the day or before they get here in the morning.
`So I understand, as you all do, that during the
`course of trial, there are times where we have to deal with
`things outside of their presence, and we make them wait, and
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`Case 5:16-cv-00179-RWS Document 229 Filed 07/02/18 Page 20 of 183 PageID #: 12256
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`that's just a necessary part of jury trials. But I do try to
`limit it to the extent I can.
`MR. LEVY: Thank you, Your Honor.
`And if I could make a suggestion, because
`oftentimes, you know, if there's a slide deck of, you know,
`50 slides and 10 of them are objected to, should Your Honor
`sustain the objections, there might be a need to modify the
`slides.
`
`So the earlier in the day that these are going that
`they could be addressed, the better able we are to not -- so,
`for example, even if it's going to go Tuesday afternoon, if
`we could address them Tuesday morning, that gives us that
`morning --
`THE COURT: Sure.
`MR. FINDLAY: -- to modify the slides.
`THE COURT: Totally -- totally agree with that.
`You all just sort of stay on top of it, and if
`you've told me, and it appears as though I've forgotten,
`remind me again, and we'll do it either at the end of the day
`or over the lunch break or whatever. But I know you need
`time to adjust afterwards.
`So I'm sensitive to that, and I'll just ask you to
`remind me during the course of the trial when we're at a
`place like that.
`MR. LEVY: Thank you.
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`Case 5:16-cv-00179-RWS Document 229 Filed 07/02/18 Page 21 of 183 PageID #: 12257
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`MR. BEABER: And in that regard, if opening is this
`afternoon, is it possible to get rulings on -- I know we have
`a number of objections back and forth on the opening -- so we
`can amend those.
`THE COURT: Yes. And I -- those were somewhat
`indecipherable to me. So could you all give us copies of
`those?
`
`MR. BEABER: Sure. Thank you, Your Honor.
`THE COURT: That will be helpful, yeah.
`And going back to the voir dire slides, not just
`the two preponderance of the evidence and clear and
`convincing.
`MR. CULBERTSON: All of the slides.
`THE COURT: All of -- I think there were four
`
`scales.
`
`MR. CULBERTSON: Understood.
`MR. WISNIA: Your Honor, just one point, which is
`that today when we were lining up to come through the
`security, we kind of bumped up against the jurors, so to
`speak, as they were coming in.
`THE COURT: Yes.
`MR. WISNIA: We didn't speak with them but smiled
`to -- I assume the Court will tell them that we weren't
`trying to -- we weren't being rude to folks; it's just --
`THE COURT: I will -- I'll give them the full
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`Case 5:16-cv-00179-RWS Document 229 Filed 07/02/18 Page 22 of 183 PageID #: 12258
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`speech on that.
`MR. WISNIA: Thank you, Your Honor.
`THE COURT: The other thing, I'm not sure whether
`it was -- it's this case or the Huawei case, but I think one
`of -- I'm assuming it's one of the Defendants had maybe
`contracted to have lunch provided at the church across the
`street.
`
`Not this case?
`MS. BJURSTROM: No.
`THE COURT: Okay. It's the church I attend. I
`just wanted to -- I heard it in a roundabout way, and I
`just -- I wanted to disclose that. I suspected it was the
`Huawei Defendant, so...
`MR. FINDLAY: No. I will talk with my assistant.
`For the record, I know we were exploring different options,
`so it is entirely possible --
`THE COURT: It's possible.
`MR. FINDLAY: -- that we reached out to them, but
`I'm not sure that's --
`MS. BJURSTROM: No, it's not.
`THE COURT: I think maybe it was Huawei. And they
`were going to use the -- one of their facilities and have
`lunches and dinners catered out. So I just wanted to
`disclose that's my church.
`All right. See you out there.
`
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`Case 5:16-cv-00179-RWS Document 229 Filed 07/02/18 Page 23 of 183 PageID #: 12259
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`MS. BJURSTROM: Thank you.
`(In Chambers Pretrial Conference concluded.)
`(Recess taken.)
`(Jury Panel in.)
`THE COURT: Please be seated.
`Ms. Combs, if you would, call the case for us.
`COURTROOM DEPUTY: Cause No. 5:16-cv-179, Maxell,
`Ltd. vs. ZTE USA, Inc.
`THE COURT: Are the Plaintiffs ready to proceed?
`MR. CULBERTSON: Your Honor, Jeff Culbertson for
`the Plaintiff Maxell. Good morning.
`THE COURT: Good morning.
`MR. CULBERTSON: We're ready to proceed.
`THE COURT: Very well. Are the Defendants ready to
`
`proceed?
`
`MR. FINDLAY: Eric Findlay on behalf of ZTE USA.
`Good morning, Your Honor.
`THE COURT: Good morning.
`All right. Good morning, ladies and gentlemen, and
`welcome. I want to thank you for being here and tell you how
`much I appreciate your being here for jury service in the
`United States District Court for the Eastern District of
`Texas.
`
`I'm Judge Trey Schroeder. You've already met some
`of our court personnel upstairs. I think Ms. Clendening and
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`Case 5:16-cv-00179-RWS Document 229 Filed 07/02/18 Page 24 of 183 PageID #: 12260
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`Ms. Green were there this morning. But I want to introduce
`the members of my Court staff.
`My courtroom deputy for today is Ms. Shedera Combs.
`Throughout the course of this trial, Ms. Betty Schroeder will
`be here as our courtroom deputy.
`My law clerks, Ms. Aisha Haley, Ms. Barira Munshi,
`and Mr. Michael Trombetta.
`Our court security officer this morning is
`Mr. Kelly McKinnie. And in the afternoons during the course
`of the trial, it will be Mr. Angel Guzman.
`As I said, I'm Judge Schroeder. I'm a United
`States District Judge for the Eastern District of Texas. I
`live here in Texarkana where I was born and grew up. I've
`been a lawyer for more than 20 years now, and I've been on
`the bench about three years.
`Along with Judge Gilstrap in Marshall, I have
`responsibility for the trials here in Texarkana, cases here
`in Texarkana.
`I went to college in Missouri and then in Arkansas,
`and I graduated from law school in Washington, D.C.
`Before I went into private practice, I worked for
`the government for a couple of years; and then I clerked for
`a federal appellate judge for a couple of years after that.
`I'm married with two children who just graduated
`from high school a couple of weeks ago, and they're off to
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`Case 5:16-cv-00179-RWS Document 229 Filed 07/02/18 Page 25 of 183 PageID #: 12261
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`college this fall.
`My wife is a lawyer, too, but she doesn't practice
`anymore. I call her a recovering lawyer.
`And I'm telling you all these things about myself
`because in a few minutes, I'm going to ask you to give us the
`same type of information about yourself, and I think you're
`as entitled to know as much about me as we are about to learn
`about you.
`We are about to begin the trial of a civil case, a
`case involving patent infringement. And I want to first
`thank you for your service here today. You're playing a
`pivotal role in our system of justice, and I hope that you
`will consider it an honor to serve your country in this
`important role because that's what it is.
`By asking you to be here to potentially serve as a
`juror in this matter, we are asking you to be away from your
`jobs, your families, and your other responsibilities.
`For those of you who have children at home, I know
`how hectic your lives are. And the same goes for those of
`you who may be a caregiver to a family member or a friend.
`By asking you to be here, we are creating a
`significant intrusion into your lives. But the reason we do
`that is we have important work for you to do. We have
`important work that will not get done without a jury.
`This is the 26th case I've tried as a Judge, and I
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`Case 5:16-cv-00179-RWS Document 229 Filed 07/02/18 Page 26 of 183 PageID #: 12262
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`believe that your experience as a juror, if you are selected
`to serve on this jury, will depend in large part on what your
`initial frame of mind is.
`I recently read about a judge in Houston who said,
`well, you could look upon jury service as a form of a tax,
`just like an income tax you pay to the Federal Government or
`the property -- or the sales tax that you pay to your state
`or county or school district where you live. And this is a
`tax that you pay not with money but with your time and your
`effort.
`
`But this judge, in a courtroom very similar to this
`one, said there may be a better way to look at it, a better
`perspective, because the truth is you're doing something much
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