Case 5:16-cv-00179-RWS Document 239 Filed 07/02/18 Page 1 of 83 PageID #: 13311
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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
` ) 8:48 a.m.
`ZTE USA, INC. June 25, 2018
`
` TRANSCRIPT OF TRIAL
` MORNING SESSION
` BEFORE THE HONORABLE ROBERT W. SCHROEDER III,
` UNITED STATES DISTRICT JUDGE,
` AND A JURY
`
`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
` ) 8:48 a.m.
`ZTE USA, INC. June 25, 2018
`
` TRANSCRIPT OF TRIAL
` MORNING SESSION
` BEFORE THE HONORABLE ROBERT W. SCHROEDER III,
` UNITED STATES DISTRICT JUDGE,
` AND A JURY
`
`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 239 Filed 07/02/18 Page 2 of 83 PageID #: 13312
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`FOR THE PLAINTIFF:
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`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 239 Filed 07/02/18 Page 3 of 83 PageID #: 13313
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`P R O C E E D I N G S
`(Jury out.)
`THE COURT: All right. We're on the record back in
`chambers. I think it's about 8:45. Good morning to
`everybody.
`All got some rest this weekend?
`MR. BEABER: A little bit.
`THE COURT: We have a number of things we need to
`
`discuss.
`
`First, you probably heard in the courtroom we lost
`a juror over the weekend.
`MS. CUNNINGHAM: No.
`THE COURT: Mr. Grissom, Juror No. 3. Apparently,
`his wife was having some medical problems and was in the
`emergency room yesterday. And I don't know the precise
`details of what the issue is or what his situation is, but
`apparently he's going to be unable to continue in the trial.
`I asked Mrs. Schroeder to reach out to him, and she
`spoke to him just a -- just a while ago just to verify that
`there was not any way he could be back and continue to serve.
`So I will be glad to answer any questions. You all
`really know at this point about all I know, so I'm not sure
`that there's much more that I can tell you.
`This is the first time this has happened to me, so
`I'm unsure exactly what to do other than to excuse him. We
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`Case 5:16-cv-00179-RWS Document 239 Filed 07/02/18 Page 4 of 83 PageID #: 13314
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`obviously have seated eight. That leaves us with seven.
`We'll keep our fingers crossed that we don't lose an
`additional juror before it gets submitted for deliberations.
`So that's what I know about that.
`Any questions, comments, concerns about that?
`I know that, Mr. Wisnia, the issue you raised on
`Friday afternoon with respect to the shadow juror -- I saw
`the filings yesterday with respect to that. I've reviewed
`both parties' filings. I'd be glad to hear anything in
`addition you all want to add to it, but I think I understand
`in general what -- what the concerns are.
`MR. WISNIA: Your Honor, the -- Howard Wisnia.
`The only additional point I would raise, which I --
`we didn't include in the briefing is on this locked room
`issue. If you may recall, we had that discussed in the
`brief.
`
`10(k) of the protective order specifically provides
`some further information on this. And it reads as follows:
`If the receiving party's outside counsel, consultants, or
`experts obtained printouts or photocopies of source code
`material, the receiving party shall ensure that such outside
`counsel, consultants, or experts keep the printouts or
`photocopies in a secured, locked area in the offices of such
`outside counsel, consultants, or experts.
`So the reference we believe in 10(e) to the locked
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`Case 5:16-cv-00179-RWS Document 239 Filed 07/02/18 Page 5 of 83 PageID #: 13315
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`room is a reference to 10(k).
`Thank you, Your Honor.
`THE COURT: Okay. Anything you all --
`MR. FUSSELL: Well, I would -- I would just comment
`
`on that.
`
`Your Honor, their reading of this is essentially
`that we were to keep the source code in a locked room in our
`offices, give them two days' notice each time that somebody
`reviewed the code for the first time. Then we were supposed
`to log in and log out anytime anybody went in and out of that
`source code room, if you will, locked room.
`That -- Mr. Wisnia knows that has not been the
`practice throughout this case. He raises this for the first
`time now that they have an issue with our jury consultants.
`Mr. Wisnia took the deposition of every one of the
`experts in this case, and he knew that they had reviewed the
`source code beforehand. He asked them questions -- extensive
`questions about their review of the source code, and he knew
`that he -- they had never once received two days' notice
`before many of those source code reviewers had reviewed the
`source code.
`Now he's taken a different position, trying to
`defend, frankly, the absurdity of the position that they've
`taken on -- with respect to this juror consultant issue.
`I just want to raise that with the Court because
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`Case 5:16-cv-00179-RWS Document 239 Filed 07/02/18 Page 6 of 83 PageID #: 13316
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`this is something they're raising for the very first time,
`when the entirety over a year of this case that has not once
`been an issue.
`MR. WISNIA: Your Honor, may I respond to that?
`THE COURT: Yes, you may.
`MR. WISNIA: I -- okay -- take high offense to
`that, and I don't say that lightly. I know in litigation
`it's rough and tumble, and I try to keep it -- I try to keep
`it aboveboard.
`All the experts in this case were disclosed to us
`under the protocol of this case, which is we knew them. They
`had -- we had signed protective orders well before I took
`their deposition. So I -- we -- they were disclosed to us
`more than two days in advance of whenever they reviewed -- I
`assumed they had reviewed before, two days before they had
`reviewed the source code.
`I have no reason to know, until Mr. Fussell just
`told me now, that they weren't abiding by the protective
`order and keeping -- keeping this stuff in a locked room in
`their office.
`If you read Section 10 -- 10 it provides extremely
`detailed steps that the parties must take to protect the
`source code in this case.
`I mean, you can't fly with it in certain places.
`Certain counsel has to carry it. You have to have 48 hours'
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`notice if you want to bring it to a deposition, all sorts of
`stuff. It's extremely, extremely detailed.
`And so I take great and high offense to the
`suggestion that this is just some ruse that I'm proposing
`now, that I didn't know that they were -- that they were
`doing this stuff previously.
`Okay. And I -- I fully expect that counsel has
`been reviewing the source code, abiding by the protective
`order. And until -- until I bumped into this -- to this
`fellow that was staring at us intently in the -- in the
`courtroom, I had no idea that -- that this was an issue.
`So we think the protective order has not been
`violated.
`I also think, quite honestly --
`THE COURT: The protective order has not been
`violated or has been --
`MR. WISNIA: I -- I -- I apologize. I believe the
`protective order has been violated. I had no reason to
`believe it was violated before this issue just arose.
`And -- and, quite honestly, I think it strains
`reasonableness to suggest that these folks are jury
`consultants and not mock jurors.
`THE COURT: What -- what's the difference, in your
`
`view?
`
`MR. WISNIA: In my view, a jury consultant --
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`Case 5:16-cv-00179-RWS Document 239 Filed 07/02/18 Page 8 of 83 PageID #: 13318
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`THE COURT: And what -- and how does it matter?
`MR. WISNIA: Well, in this -- under the protective
`order of 5(f), you are -- a party is allowed to use
`litigation consultants, including jury consultants and trial
`consultants, to see certain information.
`THE COURT: In fact, that was specifically
`contemplated by the parties clearly prior to entry of the
`protective order because it's not in the sample protective
`order, correct?
`MR. WISNIA: I -- I take your word for it, Your
`
`Honor.
`
`THE COURT: I mean, I can tell you it's not, so you
`all obviously discussed it or had some reason for including
`it in the protective order that was entered in this case by
`agreement.
`MR. WISNIA: Yeah. So a jury consultant or a trial
`consultant is somebody whose job it is -- typically a
`psychologist or someone -- effectively what Dr. Phil used to
`do before he now became Dr. Phil, which is that you work with
`counsel and you develop voir dire questions, you develop
`themes for trial that you think are going to resonate with
`the juror panels, and you look for the type of juror that you
`think -- you don't think is going to be favorable to your
`case, so you can use your "peremptive" strikes effectively.
`That's one purpose for a jury consultant.
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`Case 5:16-cv-00179-RWS Document 239 Filed 07/02/18 Page 9 of 83 PageID #: 13319
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`Another purpose of a jury consultant is they help
`you arrange, monitor, and present mock juries -- excuse me --
`mock trials prior to the trial. In other words, they arrange
`it -- they arrange the mock jurors. They arrange the
`location. They -- they do a -- they facilitate that process.
`That is what a jury consultant does.
`A mock -- they always know the counsel that they're
`working with. Part of their job is how do we get an
`advantage over the other side of the party. They need to
`know who they represent and who they work with.
`So in helping you develop your themes and -- and
`the evidence that you should and shouldn't present in the
`case, they need access to the confidential information.
`A mock juror, on the other side, is somebody that
`you try to effectively replicate what you expect your real
`jurors are going to do. They need to be as objective as
`possible.
`And I understand that a mock jury, you typically
`don't let them know -- and I've been in mock trials myself.
`You don't want them to know what side you're from because
`then they have some sort of bias, either favorably or -- or
`unfavorably, based on who hired them.
`So I have not had any further conversations with
`these four people that apparently are sitting in the -- in
`the courtroom. I only had a very brief conversation with the
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`one gentleman who told me he was an observer. I didn't know
`he was a mock juror or a jury consultant or whatever they
`want to call him now until Mr. Beaber told me that.
`But the fact that they've said in their briefing
`that these people don't know who they work for and what side
`they're working for, tells me that they're mock jurors.
`They're not jury consultants, Your Honor.
`MR. FUSSELL: I would just like to comment on that
`with respect -- well, first of all, Your Honor, I don't want
`to insinuate -- or excuse me. I don't want to show that --
`or state that we haven't abided by the protective order in
`this case. We have, in fact, abided by the protective order
`Paragraph 10(k) that he's referring to.
`We have gone to great lengths to protect the source
`code in this case and keep it in a locked area. It's in --
`it's in a locked, like, container with a -- with a -- with a
`lock on it where nobody can get in and out except one
`paralegal. I mean, I just don't want to say that just
`because he didn't keep it in a locked room as his reading of
`the -- of the protective order requires.
`As to this point with respect to mock jurors versus
`jury consultants, I think we explained this very clearly in
`the brief. The parties did contemplate mock jurors, even if
`you accept their definition that these individuals are mock
`jurors, and addressed that right in Paragraph 5(g) and
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`Case 5:16-cv-00179-RWS Document 239 Filed 07/02/18 Page 11 of 83 PageID #: 13321
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`said -- and said that mock jurors are -- are allowed to see
`designated material.
`Now, how did the parties define designated
`material? That is right in Paragraph 3 in Footnote 2. I
`read this for Your Honor: The term "designated material" is
`used throughout this protective order to refer to the class
`of materials designated as confidential, restricted,
`attorneys' eyes only, or restricted confidential source code,
`both individually and collectively.
`Clearly, the parties contemplated mock jurors being
`able to see source code information. It couldn't be any
`clearer, Your Honor.
`THE COURT: Well, let me say this: I think the --
`I don't know from the Plaintiff's view whether your jurors --
`your shadow jurors is what I would call them -- have been
`compromised at this point. If they have, I'm not sure
`there's anything that I can do to fix that. I don't know
`whether the Defendants have shadow jurors in the courtroom.
`MR. WISNIA: We do not, Your Honor.
`THE COURT: But it's certainly, in my experience,
`fairly common practice in this district for parties to
`utilize shadow jurors. So there's certainly nothing new
`about the fact that the Plaintiffs have, you know, made a
`decision to utilize shadow jurors. It's a fairly common --
`common practice.
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`Case 5:16-cv-00179-RWS Document 239 Filed 07/02/18 Page 12 of 83 PageID #: 13322
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`As I said, I do think the protective order entered
`into by agreement between the parties deviates from the
`sample order in that it has definitions of designated
`material with respect to mock jurors.
`And I'll also note that the protective order itself
`specifically says that it applies to pretrial discovery, and
`nothing in the order shall be deemed to prevent the parties
`from introducing any designated material into evidence at the
`trial of this action or from using any information contained
`in designated material at the trial of this action, subject
`to any pretrial order issued by the Court.
`So, I mean, I think the safest thing to do going
`forward is, to the extent you all are continuing to use
`shadow jurors, let's just make sure they excuse themselves
`when the courtroom is sealed at that point.
`And with respect to any -- or with respect to any
`of those persons who have either -- prior to this time, had
`access to source code, that they acknowledge that they've
`done so and that they agree to enter into the undertaking
`that the protective order provides for. Either of -- either
`of those is acceptable to me.
`And I'd be glad to hear any concerns or comments,
`Mr. Wisnia, but --
`MR. WISNIA: Understood, Your Honor.
`THE COURT: -- that's my thought.
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`Case 5:16-cv-00179-RWS Document 239 Filed 07/02/18 Page 13 of 83 PageID #: 13323
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`MR. WISNIA: Yeah. And if our papers didn't make
`it clear, I'll make it clear. We don't object to the idea of
`a mock juror. We understand -- or a shadow juror, for that
`matter. The question is, they can't be here seeing source
`code in particular. We understand they could see
`confidential and AEO information.
`If they had told us that they had these shadow
`jurors, we would have worked with them to say, okay, when
`we're going to get to the source code, just have one of your
`people shepherd them out of the courtroom, and that won't be
`an issue. Just give everybody a heads-up and have them go
`out the back.
`We didn't know that they were present. I had no
`reason to believe that that was happening.
`I, myself -- they feel maybe they didn't put
`enough -- all that much source code up. I certainly did. I
`intend to with other witnesses as well.
`THE COURT: Of course.
`MR. WISNIA: So what I had -- what we had suggested
`in the briefing and what I would again urge the Court is
`just, one, that we get an identification of who these people
`are, not just here, but apparently they may have done this
`also in the real mock trials that they did prior to the
`trial, showing source code. We need identification of those
`people and a copy of their undertakings.
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`Case 5:16-cv-00179-RWS Document 239 Filed 07/02/18 Page 14 of 83 PageID #: 13324
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`And, two, that going forward, we just -- either
`they're not in the sealed session or they are shepherded out
`during the source code presentation. That's fine with us.
`And then to the extent there's other issues to be addressed,
`we think that we've got plenty of other stuff on our plate
`during this trial to just --
`THE COURT: That's -- that's kind of where I am at
`this point. I mean, I think we've got a -- we've got a
`procedure for going forward. I haven't heard the Plaintiffs
`comment on it yet, but I'd say let's focus on the merits of
`the case and not collateral issues.
`MR. BEABER: Your Honor, one thing to say.
`First, both our jury consultant and the shadow
`jurors have signed agreements to abide by the protective
`order, so I want to make that --
`THE COURT: Sure.
`MR. BEABER: -- clear. And it was done for this
`purpose, so they would abide by the protective order.
`THE COURT: Well in advance of the trial; is that
`
`right?
`
`MR. BEABER: The jury consultant was hired back in
`March, I think.
`THE COURT: Okay.
`MR. BEABER: And so -- and then obviously the
`jury -- the shadow jurors here, we didn't even retain them
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`until after we got Your Honor's listing of jurors and all
`that kind of stuff.
`THE COURT: Okay.
`MR. BEABER: So those were signed more recently,
`obviously.
`THE COURT: Okay.
`MR. BEABER: But to the protective order, if we
`don't have the shadow jurors in the room for the confidential
`information, there's no point in having shadow jurors, right?
`I mean, if they -- they would have to sit out
`during all of the damages testimony, during everything.
`There is no point to that provision in the protective order
`if we can't have them sit in for the trial. They
`effectively -- their opinions don't matter, respectfully,
`Your Honor.
`And I think the protective order is very clear.
`The locked room that Mr. Wisnia is talking about, the log,
`that is the source code review room where we go in and look
`at their computers, right?
`There is another locked room. There's locked rooms
`for the source code at each counsel's offices, and I think
`what Mr. Fussell was saying, yes, that's kept in a locked --
`there's no log required for that room. That's a room for
`safekeeping of printed-out code.
`If you read that paragraph that talks about the log
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`and the locked room for source code review, that is going to
`Pillsbury's office, going in, looking at the source code
`review computer, logging in when you're in that room, logging
`out.
`
`Our source code reviewers, for example, when they
`had to go to the bathroom, they signed in, signed out of that
`room. That is not the locked room that we're talking -- that
`Mr. Wisnia is talking about.
`And so he contorts the paragraphs in that
`protective order -- Your Honor, if you read through that
`protective order, I am shocked by Mr. Wisnia's filing.
`You know, I looked this over. I read through this protective
`order three or four times. I look at the definition of
`"designated material," which mock juror says -- it says in no
`uncertain terms, they can see designated materials.
`Designated materials include source code by
`definition.
`So even assuming Mr. Wisnia is right with respect
`to these being mock jurors -- I call them shadow jurors like
`Your Honor does -- they still fall within the agreed terms of
`the protective order.
`We should not be put at a disadvantage for abiding
`and agreeing with the other party that this is permissible
`and then have to have, you know, the shadow jurors, that we
`paid for, out of the courtroom during the confidential
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`Case 5:16-cv-00179-RWS Document 239 Filed 07/02/18 Page 17 of 83 PageID #: 13327
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`sessions.
`Effectively, we've spent a whole lot of money then
`for no reason, and we've completely abided by that order.
`Like I said to Your Honor on Friday, we read
`through this. We abided by it at every step of the way, and
`we shouldn't be at a disadvantage for doing what the parties
`agreed we needed to do in this process.
`MR. WISNIA: Your Honor, I'll try not to take it
`personally, but they've already suggested that I've done this
`as some sort of ruse, and now that I am contorting the
`protective order.
`The protective order is quite clear. The producing
`party shall be entitled to a copy of the log upon one day's
`advanced notice to the receiving party. If I'm keeping the
`log, why am I asking him for the log? Doesn't make any
`sense.
`
`THE COURT: Address 5(g).
`MR. WISNIA: 5(g). 5(g).
`THE COURT: Page 6 of the protective order.
`MR. WISNIA: Okay. We think it's quite clear that
`the designated material they're talking about here is the
`confidential and attorneys' eyes only information, because as
`you go through it, there's a discussion of here's who could
`see confidential, in 5 -- sorry -- in -- I think it's 5, who
`can see it.
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`Case 5:16-cv-00179-RWS Document 239 Filed 07/02/18 Page 18 of 83 PageID #: 13328
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`And then in 9, they say who could see AEO, right?
`They say (a) through (c) and (e), (g), right? You see that
`at the bottom of Page 6. That's who could see the AEO level.
`So I agree that 5(g) personnel can see --
`THE COURT: The problem, Mr. Wisnia, is designated
`material is defined at Page 3, Paragraphs 3 and 4 of the
`protective order, and it specifically includes source code,
`confidential source code. It defines it individually and
`collectively as designated material.
`Now --
`MR. WISNIA: I'm not sure I agree that it -- I
`understand designated material could be confidential,
`restricted -- confidential or restricted attorneys' eyes only
`or restricted confidential source code when read in the
`context of this order and --
`THE COURT: Well, but read the footnote. Read the
`footnote. The term "designated material" used throughout --
`MR. WISNIA: I agree, Your Honor.
`THE COURT: Okay. All right. So let's -- we've
`spent quite a bit of time on this already. Your -- I
`understand what your position is. I think that the -- I
`certainly don't know everything that went into the parties'
`thoughts when they were negotiating this. All I can do is
`read what the language of the order is.
`And I think mock jurors, under this agreement, are
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`Case 5:16-cv-00179-RWS Document 239 Filed 07/02/18 Page 19 of 83 PageID #: 13329
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`permitted; and as long as they have signed an acknowledgment
`or an undertaking verifying that they agree to be bound by
`the terms of the protective order, I'm not going to prohibit
`them from continued participation in the trial.
`MR. WISNIA: Including the portion that relates to
`source code?
`THE COURT: Yes.
`MR. WISNIA: Okay.
`THE COURT: So to the extent you have continuing
`concerns about people who are in the courtroom who look
`suspicious to you or whatever, Mr. Wisnia, don't hesitate to
`let me know that, and I will deal with it in a way that I
`think is most appropriate, but I think that might be
`better -- that's what I'm here for.
`So if you think there's -- you've got some concerns
`about somebody who shouldn't be in the courtroom, why don't
`you bring that to my attention.
`MR. WISNIA: Very well, Your Honor.
`THE COURT: Okay. What else do we need to address
`before we have the jury brought into the courtroom?
`Did the deposition of Dr. Phinney occur this
`
`weekend?
`
`MS. CUNNINGHAM: It did.
`THE COURT: All right.
`MS. CUNNINGHAM: Saturday afternoon, Your Honor.
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`Case 5:16-cv-00179-RWS Document 239 Filed 07/02/18 Page 20 of 83 PageID #: 13330
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`THE COURT: Okay. And were your concerns about
`those slides satisfied, Ms. Cunningham?
`MS. CUNNINGHAM: Your Honor, it became very clear
`during the deposition, as we suspected, that his opinions had
`indeed changed from his report.
`However, we have withdrawn our objections to those
`slides. They did modify some of them as well, I believe, to
`address some of the objections, and we believe it's
`appropriate for cross-examination.
`THE COURT: Okay.
`MS. CUNNINGHAM: And we're comfortable proceeding
`
`with it.
`
`THE COURT: Very well.
`Anything else?
`MR. CULBERTSON: You had objections to the
`deposition designations of Tian Dao?
`MS. BJURSTROM: Yeah. We have -- our associate
`
`is --
`
`MR. CULBERTSON: Out there? Okay. That's fine.
`THE COURT: When will that --
`MR. CULBERTSON: That's first out.
`THE COURT: Oh, very first --
`MS. BJURSTROM: Oh, that's first?
`MR. CULBERTSON: Yeah.
`MS. BJURSTROM: Oh, I didn't know that.
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`Case 5:16-cv-00179-RWS Document 239 Filed 07/02/18 Page 21 of 83 PageID #: 13331
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`THE COURT: Well --
`MS. BJURSTROM: We can go get him real quick.
`MR. WISNIA: So the order is, you're going to play
`all of the depos, and then you're going to have Phinney go
`up? Is that --
`MR. CULBERTSON: Just Dao first.
`MR. WISNIA: Okay.
`THE COURT: Let's go off the record.
`(Discussion off the record.)
`THE COURT: All right. Back on the record.
`Good morning.
`MR. STEPHENS: Good morning, Your Honor.
`THE COURT: So I think there's a deposition that
`the parties -- what's the witness's name?
`MR. CULBERTSON: Tian Dao.
`THE COURT: Okay.
`MS. CUNNINGHAM: Tian Dao, I believe.
`THE COURT: Okay.
`MR. CULBERTSON: Thank you.
`And they have raised, Your Honor -- ZTE has raised
`objections to the designations that we've made, so I think
`it's appropriate for them to go first.
`THE COURT: Yeah. Let me hear that.
`MR. STEPHENS: Your Honor, our designations --
`THE REPORTER: I'm sorry. Can you tell me who --
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`Case 5:16-cv-00179-RWS Document 239 Filed 07/02/18 Page 22 of 83 PageID #: 13332
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`what your name is?
`MR. STEPHENS: Matthew Stephens for ZTE USA.
`THE REPORTER: Okay. Thank you. I'm sorry.
`THE COURT: Welcome, Mr. Stevens.
`MR. STEPHENS: Thank you, Your Honor.
`Our deposition designation -- our objections
`primarily relate to what we consider to be Rule 408
`settlement communications. We understand Your Honor's ruling
`on the motions in limine. We are simply restating those to
`preserve the record.
`THE COURT: Certainly.
`MR. STEPHENS: The other issue that is presently
`still ripe is relating to an introductory statement to
`alleviate some concerns we had regarding which -- who the
`witness was testifying on behalf of and whom he was
`discussing licensing negotiations with, particularly Hitachi
`Maxell.
`
`When he refers to Hitachi, we had discussed
`potentially an introductory statement in which it would be
`made clear to the jury that he was referring to Hitachi
`Maxell.
`
`Throughout the course of our discussions, we -- ZTE
`has decided that we would prefer to just play the clips as
`they are, without any introductory statement.
`MR. CULBERTSON: Okay. That was -- that's the
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`Case 5:16-cv-00179-RWS Document 239 Filed 07/02/18 Page 23 of 83 PageID #: 13333
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`first time we're hearing that one, Your Honor.
`MS. CUNNINGHAM: I actually sent an e-mail to your
`team about 20 minutes ago before we came in here.
`MR. CULBERTSON: Okay.
`THE COURT: Twenty minutes ago when we were in
`
`here.
`
`MS. CUNNINGHAM: I apologize if you --
`MR. CULBERTSON: I don't deny that occurred.
`THE COURT: I think we were in here 20 minutes ago.
`MS. CUNNINGHAM: Well, it was in response to an
`e-mail one minute before their team -- I just wanted to --
`MR. CULBERTSON: We were wrangling over how to
`introduce the witness.
`THE COURT: Right.
`MR. CULBERTSON: What we had proposed is that he is
`an employee of ZTE Corp who was designated by ZTE USA to
`testify on behalf of ZTE USA on certain topics in this case.
`During the testimony you're about to see,
`references that Mr. Dao makes to Hitachi refer to Hitachi
`Maxell, which used to be the name of the Plaintiff in this
`case.
`
`And I think we were in agreement in that second
`part. It was the first part. We just wanted it to -- we
`wanted to stick to the facts. He is an employee of Corp. He
`was designated to testify for ZTE in this case. So that's
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`Case 5:16-cv-00179-RWS Document 239 Filed 07/02/18 Page 24 of 83 PageID #: 13334
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`the introduction we would like to make.
`THE COURT: I don't see any objection to that.
`MR. STEPHENS: Your Honor, we're concerned that
`there will be confusion in the jury's mind that they can
`associate Mr. Dao, who is testifying as a ZTE Corp employee,
`as being associated with ZTE USA, and we don't want to allow
`the inference and the confusion that might result from it.
`THE COURT: Well, they are the facts, are they not?
`MR. STEPHENS: Mr. Dao is a ZTE Corporation
`employee who is testifying.
`THE COURT: Was he designated as a witness on
`behalf of ZTE USA in this case?
`MR. STEPHENS: Yes, Your Honor.
`THE COURT: Okay. I think that solves it.
`MR. CULBERTSON: Would Your Honor like to make that
`introduction, or would you prefer I do it?
`THE COURT: I'm open to doing it however the
`parties want. If you want me to do it, I'll do it.
`MR. STEPHENS: Your Honor, may I add? If we are
`going to introduce Mr. Dao as an employee of ZTE Corp, we
`would also prefer that the reference to Hitachi be made clear
`that it is Hitachi Maxell and not just Hitachi.
`THE COURT: Sure.
`MR. CULBERTSON: That's understood.
`THE COURT: Okay. Do the parties want me to do it,
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`Case 5:16-cv-00179-RWS Document 239 Filed 07/02/18 Page 25 of 83 PageID #: 13335
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`or do the -- doesn't make any difference to me.
`MR. FINDLAY: I'd like Your Honor to do it.
`First -- Eric Findlay on behalf of ZTE USA.
`THE COURT: Be happy to do it.
`MR. FINDLAY: Yeah, I'd like --
`THE COURT: Yeah. If you'll provide --
`MR. CULBERTSON: May I e-mail it to you?
`THE COURT: Yes, uh-huh. You may.
`All right. Are there objections with respect to
`the actual testimony or is it just the introduction we're
`concerned about?
`MR. BEABER: I think it was they had objections,
`but I think they were just preserving them under --
`THE COURT: Oh, just that you referred to earlier
`with respect to the previous motion in limine.
`Okay, good. S
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