Case 6:12-cv-00855-RWS Document 385 Filed 01/19/16 Page 1 of 6 PageID #: 28628
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
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`Judge Robert W. Schroeder III
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`VIRNETX INC., et al
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`V.
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`§
`§
`§
`APPLE INC.
`________________________________________________________________________
`MINUTES FOR FINAL PRE-TRIAL CONFERENCE
`HELD BEFORE JUDGE ROBERT W. SCHROEDER III
`JANUARY 19, 2016
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`CIVIL NO. 6:12cv855
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`§§
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`ADJOURN: 3:47 pm
`OPEN:10:05 am
`________________________________________________________________________
`ATTORNEY FOR PLAINTIFFS: See Attorney Sign-In Sheet
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`ATTORNEY FOR DEFENDANTS: See Attorney Sign-In Sheet
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`LAW CLERK:
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`Jenna Rea
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`COURTROOM DEPUTY:
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`Betty Schroeder
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`Brenda Smith
`COURT REPORTER:
`______________________________________________________________________________
`______________________________________________________________________________
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`10:05 am
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`Case called, parties announced ready, Court introduces staff and welcomes
`parties; Court suggests he goes through some logistical issues with respect to
`trial; would like to hear argument to clarify a few things; will take up motions in
`limine and then objections to exhibits; we will have until 4:00; jury selection and
`trial will begin on January 25; explains jury selection process; Mr. Johnny Ward
`asks when they can get list; Court says they can have them Friday afternoon;
`parties need to contact Gleith Green, Clerk’s Office; trial schedule for first day
`will be opening statements after lunch and then testimony to begin; the course of
`the trial schedule will be starting at 9:00 with witness on stand, jury in box ready
`to go; Court will be here by 8:00, take up any matters no later than 8:30; Court
`questions if any trial management issues remain; Mr. Jason Cassady responds;
`advises Court that the following will be tried - patent ‘135, claims 1, 3, 7, 8; ‘151,
`claim 13; ‘211, claims 36, 37, 47, 51; and ‘504, claims 1, 2, 5, 16, 21, 27; Mr.
`Greg Arovas advises Court regarding time needed; believes they can do it in 19
`hours; Mr. Cassady would like 12 hours; Mr. Arovas responds; Mr. Brad
`Caldwell responds; Court responds with 15 hours to present case, if redundant or
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`Case 6:12-cv-00855-RWS Document 385 Filed 01/19/16 Page 2 of 6 PageID #: 28629
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`wasting time, will reduce that amount; Court advises parties to have exhibit lists
`every day, plus previous day’s list; Mr. Jones asks question regarding cumulative;
`Court responds; Mr. Daniel Pearson asks about admitting en masse on first day;
`Court responds; Mr. Arovas questions Court regarding en masse; Court responds;
`Court explains practice of sealing courtroom; each side responsible for complying
`with the rule; on last day of trial, Court will supply lunch tojury; parties can
`submit snacks and drinks; agreed juror notebooks will be allowed; Court asks if
`parties have discussed witness questioning by the jury; Mr. Cassady responds;
`Court is inclined to do it; Mr. Arovas advises they are discussing it; Mr. Caldwell
`responds; Court responds; Court advises parties of electronic devices policy in
`courtroom; cell phones can be brought in but must be turned off and put away;
`schedule will be 9:00; one morning break around 10:15 or 10:30, for about 15
`minutes; go to around noon; lunch for an hour and fifteen minutes; come back
`around 1:15, break around 3:15 or 3:30, about 15 minute break; go until about
`5:00; if having to break early, will try to make time up the next day; Mr. Caldwell
`asks about opening - 30 minutes would work; Court responds; Mr. Arovas
`responds - an hour, maybe 45 minutes; Court will let the parties know later, but
`will probably go 45 minutes; Court asks about closing; Mr. Caldwell and Mr.
`Arovas respond; Court is inclined to wait; Court would like to hear argument on
`Motion to Clarify
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`10:48 am
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`Mr. Caldwell argues Motion to Clarify (dkt. #369)
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`11:05 am
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`Court questions Mr. Caldwell; Mr. Caldwell responds
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`11:11 am
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`Mr. Arovas responds
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`11:31 am
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`Mr. Caldwell responds
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`11:39 am
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`11:42 am
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`Court appreciates the presentations given; Court rules that the motion will be
`GRANTED; does not incorporate the domain name service; for purposes of trial,
`the focus should be on factual issues
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`Court addresses two housekeeping matters; deadline for filing things during the
`course of trial shall be filed by 10:00 pm, response no later than 7:00 am the
`following morning; with respect to bench conferences - any time used at a bench
`conference will be deducted from the losing party; with respect to the Court’s
`request that the parties discuss a proposed remedy for the 29 page motion for
`judgment of no equitable conduct filed by plaintiffs- do parties want to be heard
`on that?
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`11:44 am
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`Mr. Mike Jones responds
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`11:47 am
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`Mr. Pearson responds; Court responds
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`11:49 am
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`Mr. Jones responds
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`11:50 am
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`Will break for lunch and take up motions in limine after lunch; Court believes it
`would have been the better practice to seek leave before filing motion; Court will
`reduce Plaintiff’s opening statement time from 45 minutes to 30 minutes
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`11:51 am
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`Recess
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`1:05 pm
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`1:06 pm
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`1:12 pm
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`1:19 pm
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`1:20 pm
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`1:24 pm
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`1:28 pm
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`1:32 pm
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`1:38 pm
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`1:39 pm
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`1:40 pm
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`1:44 pm
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`1:46 pm
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`1:47 pm
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`1:50 pm
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`1:51 pm
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`Court would like to hear argument on motions in limine, five minutes a side with
`no rebuttal; Mr. Arovas advises Court that an order has been agreed upon; Mr.
`Cassady advises that some of them have been worked out
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`Mr. Arovas begins with the motion relating to the proceedings of the 417 trial
`(Apple I)
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`Mr. Ward responds; Court responds
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`Court questions Mr. Ward; Mr. Ward responds
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`Mr. Arovas responds
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`Court advises that a lot of this will be flushed out at trial, a number of sidebars.
`Don’t think it necessary to retry the case; preliminary ruling is to DENY VPN On
`Demand; same with FaceTime; invalidity GRANTED; with respect to damages
`GRANTED; change in trial counsel GRANTED; Mr. Ward what about change in
`witnesses; Mr. Ward responds; will have to approach on that
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`Mr. Cassady argues VirnetX’s “D” - any reference to any litigation
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`Mr. Arovas responds
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`Court - will have to carry to trial; seems like parties should be able to come to an
`agreement on this (Apple X)
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`Mr. Caldwell questions Court; Court responds; if still a gap regarding CISCO
`will address it before opening
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`Mr. Jones argues Apple II relating to expert Dr. Wecker
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`Mr. Pearson responds
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`Court questions Mr. Pearson; Mr. Pearson responds; Court GRANTS motion
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`Mr. Robert Appleby argues part that relates to damages expert Mr. Weinstein
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`Mr. Cassady responds; motion GRANTED
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`Mr. Arovas sees no reason to argue part pertaining to Dr. Jones
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`1:52 pm
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`1:56 pm
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`1:59 pm
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`2:03 pm
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`2:05 pm
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`2:07 pm
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`2:10 pm
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`2:11 pm
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`2:12 pm
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`2:14 pm
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`2:15 pm
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`2:18 pm
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`2:19 pm
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`2:21 pm
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`2:24 pm
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`2:26 pm
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`2:27 pm
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`2:29 pm
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`2:30 pm
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`2:32 pm
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`Mr. Caldwell argues VirnetX’s “A”
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`Court questions Mr. Caldwell; Mr. Caldwell responds
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`Mr. Arovas responds
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`Court questions Mr. Arovas; Mr. Arovas responds; Court responds - will GRANT
`motion; if we get to a point and want to discuss other patents, approach and we
`will take it up at that time
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`Mr. Arovas continues; Mr. Caldwell responds; Mr. Arovas responds; Court - for
`purposes of opening, let’s keep it at a very high level; Mr. Arovas responds
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`Mr. Appleby argues Apple III
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`Mr. Justin Nemunaitis responds
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`Court GRANTS motion
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`Mr. Nemunaitis questions Court; Court responds
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`Mr. Cassady argues VirnetX’s “E”; advises that subparts 3 and 4 are agreed
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`Mr. Appleby responds; thought they had an agreed MIL; Mr. Cassady responds;
`Court GRANTS motion
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`Mr. Cassady argues another subpart; Mr. Appleby responds; Court WILL HOLD
`ruling until results of deposition
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`Mr. Cassady argues motion in limine regarding derivation; Mr. Appleby responds
`Court wants parties to meet and confer to resolve this one
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`Mr. Jones argues Apple IV
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`Mr. Jason McManis responds
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`Court questions Mr. McManis; Mr. McManis responds; Mr. Caldwell responds
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`Mr. Jones responds; Court questions Mr. Jones; Mr. Jones responds
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`Court would like to see selected portions of transcripts from Mr. Jones; not
`inclined to rule differently than Judge Davis
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`Mr. Cassady argues VirnetX’s “F”
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`Mr. Appleby responds
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`Case 6:12-cv-00855-RWS Document 385 Filed 01/19/16 Page 5 of 6 PageID #: 28632
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`2:37 pm
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`2:38 pm
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`2:41 pm
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`2:43 pm
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`2:48 pm
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`2:52 pm
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`3:00 pm
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`3:03 pm
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`3:03 pm
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`3:23 pm
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`3:23 pm
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`3:29 pm
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`3:30 pm
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`3:31 pm
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`3:36 pm
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`3:40 pm
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`Mr. Cassady responds; motion will be granted
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`Mr. Jones argues Apple V
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`Mr. Chris Stewart responds; motion will be DENIED
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`Mr. John Summers argues VirnetX’s “H”; will not argue subsection B and C
`which leaves A
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`Mr. Joseph Loy responds; Court will DENY motion; will hear objections during
`trial as it arises and the plaintiff will need to be prepared to show specific
`questions and answers from the deposition where the witness was blocked from
`being asked or being allowed to answer the question
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`Ms. Jeannie Heffernan argues Apple VI
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`Court questions Mr. Pearson; Mr. Pearson responds to Court and then responds to
`Ms. Heffernan’s argument
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`Court believes this is a Daubert motion and has already ruled on it; will DENY
`but if we get to a point where Apple feels like we’re into testimony that feels
`prohibited, we will have a sidebar and deal with it at the time.
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`Break
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`Mr. Arovas advises that there are some agreements; a couple of open issues
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`Mr. Loy states that VirnetX’s “I” is agreed to; discusses agreement regarding
`VirnetX’s “J”; Mr. Cassady replies to agreement; Court asks exactly where are
`we; Mr. Cassady replies; VirnetX rejects offer regarding Mr. Van Pelt; Court
`responds; Mr. Cassady replies; Court will DENY VirnetX’s “J”;
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`Mr. Loy advises that deposition on January 24 will not exceed two hours;
`agreement on no evidence, testimony, or reference to any former or current Apple
`employee or executive as well as VirnetX’s employees or executives
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`Mr. Cassady advises that VirnetX’s “B” is agreed on; Mr. Deoras agrees
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`Ms. Leslie Schmidt argues Apple VII
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`Mr. Cassady responds; Court questions; Mr. Cassady responds; Court GRANTS
`motion
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`Mr. Caldwell responds to Motion in Limine regarding Mr. Van Pelt; Court
`questions Mr. Caldwell; Mr. Caldwell respons; Mr. Arovas responds; Mr.
`Caldwell responds
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`Case 6:12-cv-00855-RWS Document 385 Filed 01/19/16 Page 6 of 6 PageID #: 28633
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`3:43 pm
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`Mr. Pearson discusses exhibits; Court suggests either proceeding on Monday and
`taking up exhibits at that time or on Friday afternoon we can meet in Texarkana
`and discuss exhibits; Mr. Pearson agrees to doing it over the course of trial; Mr.
`Arovas would like to have meeting; Court advises we will meet in Texarkana at
`1:00 pm to discuss exhibits
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`3:47 pm
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`Recess