The long-awaited trial date in MV3 Partners LLC v. Roku, Inc. is here at last! Our intention this week on the blog is to cover some of the more notable occurrences during trial. As always, if there’s anything in particular you’re interested in hearing about, please let us know. Here’s how pretrial proceedings and opening statements went this morning.
The Marshal opened the doors to Judge Albright’s Courtroom No. 1 at 8AM sharp. Beyond the parties and their representatives, a couple dozen interested observers filled the gallery. For anyone thinking of paying their own visit to Court, the back rows did not appear to hit the Court’s maximum COVID-era audience capacity.
Speaking of which, in recognition of our new pandemic-tinged reality, all non-court staff were masked, per Judge Albright’s operative trial procedures. The Court also clarified that the three people sitting at each counsel table are permitted to wear or not wear masks, as they prefer.
The Court began pretrial proceedings at 8:30. Topics covered were:
- Objection procedures: Judge Albright opened with a directive that there would be no bench conferences in light of the coronavirus. The Court further explained that to the extent the parties believe that an objection must be addressed outside the presence of the jury, there would be a break in proceedings, so any such objection had “better be something very important.” The Court noted that the loser of the objection argument would have the time devoted to the adjournment deducted from their trial-presentation allotment. (For this case, that’s 14 hours per side.)
- Witness access: Witnesses with health concerns previously disclosed to the Court will be permitted to enter the courtroom via a private rear entrance, allowing for significantly reduced person-to-person contact.
- Exhibit admissions: The parties agreed between themselves that certain unobjected-to exhibits could be preadmitted, and requested that the parties be allowed to read those exhibits into the record each morning. Judge Albright agreed to the proposal. The parties can refer to all preadmitted exhibits without having to move for admission of the exhibits during the flow of trial.
- Treatment of confidential material: For exhibits designated as Roku’s confidential material, Judge Albright asked for confirmation regarding whether Roku requested that the courtroom be cleared. Counsel confirmed that Roku was requesting merely that confidential information not be published on the courtroom screens in a manner visible to the public. The Court stated that as long as the parties themselves could handle the related technical execution, Roku’s proposal was acceptable.
- Evidentiary objection #1: Roku produced revised financial figures the evening of Friday, October 2, purporting to revise sales figures covering 2014-2019. MV3 requested to be able to instead rely on Roku’s September 23, 2020 sales disclosure, and that Roku be precluded from relying on the newly-revised numbers. Judge Albright sustained MV3’s objection and excluded the newly-produced sales figures, explaining that even though he “d[id]n’t think that anyone did anything intentionally wrong,” a production the Friday night before trial was too late for an update.
- Evidentiary objection #2: The Court ruled that since an objection to MV3’s survey expert was still pending, MV3 would not be permitted to reference that expert during opening arguments.
- Jury instructions: The Court explained to counsel that final jury instructions would be forthcoming shortly, as prepared by the Court based on the parties’ written submissions (including objections). The Court explained that the parties would later have an opportunity to preserve any objections for appeal, but did not indicate any intention to hold extended arguments at a formal charge conference.
At roughly 9AM the Court commenced trial by seating seven jurors in a socially-distanced fashion. Judge Albright introduced himself to the jury for the first time, given that voir dire was conducted last week by Magistrate Judge Manske. Judge Albright expressed particular gratitude that it is an “even more extraordinary” event than normal to serve on a jury during this coronavirus pandemic. The Court noted that “We have done everything we can to try to make you feel comfortable” given the coronavirus—but encouraged the jury to update the Marshal with any safety concerns not previously anticipated.
The Court then delivered preliminary jury instructions, and the parties delivered their opening statements mostly without incident. Roku objected following conclusion of MV3’s opening—outside the presence of the jury—to certain comments relating to issuance of the asserted patent, given that Roku dropped its invalidity case on October 1. The Court overruled the objection, and made clear that the parties were not to put on any evidence relating to validity during the course of trial.
Next update to come as events warrant and circumstances allow.