This is a well crafted order for sanctions by a careful, smart jurist. Judge Davis certainly shows in this pleading that he is too intelligent to buy the bluster and feldgercarb that the Apple attorneys tried to run by him.
He puts them to what I seem to remember is called a Hobson's choice. They lose either way and neither option is good for Apple's case (if they ever allow this case see the inside of a courtroom). Even a minimally competent attorney could use the order to ram Apple's obviously shady conduct down their throats at trial. VHC's attorneys are certainly loving this order right now. Thanks for the hammer, Judge. Now I see why you do not get reversed on appeal.
What is especially bad for Apple going forward is the well reasoned and supported conclusion contained in the order that they acted in Bad Faith. That is the proverbial poop in the ice cream. They were found to not only have unjustifiably stopped the depo, but subsequently tried to put one over on the Judge regarding why they did it. Good luck getting any slack ever from this Judge again counsel!
After a month of all the worthless FUD and shameless shenannigans, it feels good tonight to have yet another actual fact to support the longs. Thanks for the studs (no need to name you as we all know your monikers) for your efforts on behalf of those of us who are holding fast against the powerful, unscrupulous forces amassed against us.
Accordingly, given that Apple’s counsel improperly terminated the deposition of Mr. Allié in violation of Rule 30(d)(3)(A), to address the relative harm VirnetX has suffered from such improper termination, and to act as a deterrent to such future conduct in this and other cases, the Court GRANTS VirnetX’s motion for sanctions and imposes the following sanctions:
(1) Apple must pay VirnetX’s reasonable attorneys’ fees and costs associated with responding to Apple’s motion for a protective order and the filing of VirnetX’s motion for sanctions;
(2) Apple must produce Mr. Allié for completion of his deposition at a time and location selected by VirnetX, all costs of such deposition to be paid by Apple.
Apple shall not, through counsel or otherwise, further communicate in any way with Mr. Allié regarding the patents about which the witness was testifying prior to termination of his deposition. To the extent Apple has communicated with Mr. Allié about the patents since his deposition was terminated, Apple and Mr. Allié are deemed to have waived any privilege they might otherwise assert as to these conversations, and the witness will truthfully answer any and all questions regarding any such communications between Mr. Allié and Apple or any of its counsel, employees or representatives. Apple is precluded from asking any questions of the witness with regard to the comparison of the two patents.
(3) However, in lieu of Sanction #2 above, Apple may elect the following sanction and no further deposition of Mr. Allié will be taken:
a. Apple is precluded from calling Mr. Allié at trial, or providing any rebuttal or counter-designations from Mr. Allié’s deposition testimony regarding the comparison of ‘225 application and ‘135 patent; and
b. The Court will give the following adverse inference instruction to the jury at an appropriate time during the trial:
“During the deposition of Mr. Allié, counsel for VirnetX asked questions related to comparison of VirnetX’s ‘135 patent and Apple’s ‘225 patent application. Counsel for Apple improperly terminated the deposition and did not permit Mr. Allié to answer these questions. You may, although you are not required to, infer that had Apple’s counsel not terminated Mr. Allié’s deposition, the testimony provided would have been unfavorable to Apple, and that Apple’s counsel’s reason for terminating the deposition was to prevent such unfavorable testimony from being presented to you in this case.”
This choice of sanctions allows Apple to complete the deposition and avoid the adverse inference instruction, but prohibits it from potentially profiting from having stopped the deposition. At the same time, if Apple chooses not to complete the deposition with any otherwise privileged post-termination communications waived, then such an adverse inference instruction is justified and appropriate.
Excellent post, some relief from the remorseless bashing by the shorts today. With this kind of favorable progress in the trial it's hard to understand why the stock is getting so battered. Long and strong.
I like this from the honorable judge.The judge's setences are STRONG!!
As an initial matter, the Court has reviewed the transcript excerpts submitted by the
parties and viewed the entirety of the video of Mr. Allié’s deposition. At no point did VirnetX’s
counsel conduct the deposition in a manner that could be characterized as intended to annoy,
embarrass, or oppress Mr. Allié. VirnetX’s counsel did not badger Mr. Allié, raise his voice, or
use inappropriate language. On the contrary, VirnetX’s counsel conducted the deposition in a
professional and respectful manner.