Case 6:12-cv-00855-RWS Document 476 Filed 04/18/16 Page 1 of 4 PageID #: 35327
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
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`CASE NO. 6:12-CV-855
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`VIRNETX INC. AND SCIENCE
`APPLICATIONS INTERNATIONAL
`CORPORATION,
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`Plaintiffs,
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`vs.
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`APPLE INC.,
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`Defendant.
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`ORDER
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`Before the Court is Defendant Apple Inc.’s (“Apple”) Motion for Permission to Contact
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`Former Jurors (Docket No. 467). At the end of the jury trial in the above captioned case, the
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`Court stated that the parties could request permission to contact the jury to obtain trial
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`presentation feedback for younger attorneys. Docket No. 446 at 10:22–11:9. After reviewing
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`the briefing, Apple’s Motion (Docket No. 467) is GRANTED-IN-PART and DENIED-IN-
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`PART; the parties may contact the jurors through Court-approved questionnaires under the
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`conditions detailed below.
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`Requests to contact jurors are evaluated by balancing competing interests, such as (1) the
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`benefit to counsel of improved advocacy; (2) the juror’s privacy interests; and (3) the public’s
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`interest in well-administered justice. See United States v. Cauble, 532 F. Supp. 804, 810 (E.D.
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`Tex. 1982). In some instances where juror contact is allowed, it is under the district court’s
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`supervision. See, e.g., id. at 808–09; United States v. Kepreos, 759 F.2d 961, 967 (1st Cir.
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`1985).
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`Case 6:12-cv-00855-RWS Document 476 Filed 04/18/16 Page 2 of 4 PageID #: 35328
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`Through its Motion, Apple seeks permission to contact the jurors outside the presence of
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`the opposing party so that the jurors can comment freely on “their impressions of trial themes
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`and individual attorney performances.” Docket No. 742 at 1. Alternatively, if the Court chooses
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`to impose restrictions on how jurors are contacted, Apple proposed: (1) the Court informing
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`jurors that they may contact counsel for VirnetX Inc. (“VirnetX”) or Apple voluntarily and
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`providing contact information for counsel of both parties, or (2) VirnetX and Apple each
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`preparing a questionnaire and separately distributing the questionnaires to the jurors. Docket No.
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`472 at 5 n.1.
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`In response, VirnetX states that Apple will use unrestricted contact with the jurors as a
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`“fishing expedition” for additional grounds supporting a new trial. Docket No. 469 at 1, 3.
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`VirnetX also explains that any educational benefit gained from unfettered access to jurors is
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`outweighed by the privacy interests of the jurors. Id. at 6. VirnetX proposes restrictions for
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`contacting jurors, including: (1) the Court notifying the jurors that they can contact the parties’
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`attorneys jointly about advocacy and trial presentation, or (2) the parties sending a joint
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`questionnaire to the jurors; the questionnaire would identify the various attorneys who appeared
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`in the case and ask questions related to each attorney’s trial presentation and advocacy, but not
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`deliberations. Id. at 6 n.7.
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`The first proposal, informing jurors that they may contact attorneys in the case, gives the
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`Court little supervision over the interaction between a juror and the attorneys. See Kepreos, 759
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`F.2d at 967. In addition, the juror could be inconvenienced if he or she must wait for both
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`parties’ attorneys to be available for a conversation. See Docket No. 469 at 1–2.
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`The second proposal, a juror questionnaire, allows additional Court oversight. So that the
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`parties may obtain feedback on their presentation and trial themes in a way that is meaningful
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`Page 2 of 4
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`Case 6:12-cv-00855-RWS Document 476 Filed 04/18/16 Page 3 of 4 PageID #: 35329
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`and helpful to them, separate questionnaires will be allowed. Each party will have
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`an opportunity to review the opposing party’s questionnaire and bring to the Court’s attention
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`any concerning questions before it is mailed to the jurors. Answers to the questionnaires
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`provided by jurors will be given to the party who drafted the questionnaire. This will
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`give parties the opportunity to receive and reflect on trial presentation and theme feedback in
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`private; however, juror responses will need to be immediately disclosed to the opposing party if
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`they raise concerns of juror misconduct or any other new grounds for a mistrial.
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`The procedure for contacting the jurors will occur as follows. By April 25, 2016,
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`VirnetX and Apple may each file a questionnaire with no more than fifteen (15) questions. See
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`Docket No. 469 at 6 n.7; Docket No. 472 at 5 n.1. The Court will be especially critical of
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`questions with multiple subparts. The questions should focus on the trial presentation and
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`themes witnessed by the jurors.
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`By April 29, 2016, objections of no more than five (5) pages may be filed regarding the
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`opposing party’s questionnaire. By May 3, 2016, the parties may file a reply of no more than
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`five (5) pages responding to any objections. After the questionnaires are approved by the Court,
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`the Court will mail them to the jurors with a cover letter from the Court and a return
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`envelope. Juror responses to VirnetX’s questionnaire will be provided to VirnetX; juror
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`responses to Apple’s questionnaire will be provided to Apple. Any responses received to the
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`questionnaires must be designated as CONFIDENTIAL – ATTORNEYS’ EYES ONLY to
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`protect the privacy of the jurors.
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`The cover letter from the Court will ask the jurors if they are willing to speak with
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`counsel for VirnetX and Apple by phone. If this question is answered in the affirmative, then the
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`juror will be invited to provide a telephone number and information on the best time for
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`Page 3 of 4
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`Case 6:12-cv-00855-RWS Document 476 Filed 04/18/16 Page 4 of 4 PageID #: 35330
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`contacting him or her. This information will also be provided to counsel for the parties with
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`additional instructions at that time.
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`Page 4 of 4
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`.
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`____________________________________
`ROBERT W. SCHROEDER III
`UNITED STATES DISTRICT JUDGE
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`SIGNED this 18th day of April, 2016.