MV3 v Roku Update Bits and Pieces

The first week of the MV3-Roku trial is at an end. As mentioned in our last post, it’s been a pretty standard case, all in all. So let’s just close out with some tidbits gleaned from Mark’s and my general observations over the last several days:

  • Jury instructions: Charge conference was held Friday afternoon in chambers, out of view of the public. The parties will have the opportunity on Tuesday to formally preserve objections on the record.
  • Rule 50 motions: Judge Albright allows JMOL motions to be submitted to the Court either orally or in written format. In this case, Judge Albright had Roku’s counsel preview Roku’s motion orally, and then denied the motion on the record.
  • Witness presentation: It’s fair to say that many of Judge Albright’s practices are more informal than the average Article III District Judge (e.g., impromptu telephonic conferences in lieu of briefed discovery motions)—but he has limits. As a practice pointer, you’ll do best to ensure that any witness testifying in front of the jury appear in business formal attire. (The Court’s feedback was delivered to counsel outside the presence of the jury, of course.)
  • Witness responsiveness: Judge Albright expects witnesses during cross-examination to answer opposing counsel’s questions directly. e.g., If asked a yes/no question, Judge Albright generally expects a yes/no answer—and isn’t overly shy about directing witnesses to comply.
  • Impeachment: Brush up on your trial advocacy before practicing in front of Judge Albright. In more than one exchange, Judge Albright rebuked counsel for attempting to impeach a witness using an allegedly inconsistent prior deposition statement, without first asking the exact same question (and receiving a different answer) at trial. Judge Albright also disfavors impeachment via overly selective references to deposition testimony (e.g., a single sentence), and expects to see sufficient context included.
  • Motions in limineIf a topic has been the subject of a motion in limine, pay extra caution when questioning a witness on that subject. The Court sua sponte chided the parties for an examination that danced around the edges of a prior ruling. i.e., MIL rulings aren’t about so-called “magic words”—they’re about how a sensitive subject matter should be generally treated, and the need to raise a proposal to address that subject matter with the Court in advance. (See the Court’s MIL order: “[Party] is precluded from raising this topic during voir dire and opening arguments. If
    [Party] seeks to put on evidence about this topic at trial, [Party] needs to notify the Court in advance for the Court’s ruling on the topic.”)
  • Redirect examinations: Consistent with his approach as a generally “pro-discovery” judge, Judge Albright appears to take a fairly liberal approach as to the extent to which a cross-examination can “open the door” for a redirect examination. Multiple objections to a redirect examination supposedly going beyond the scope of cross were overruled.
  • Expanding the documentary record: With that said, Judge Albright is decidedly not sympathetic to bringing in never-before-seen documents during trial. In addition to our prior coverage of updated sales figures produced right before trial, Judge Albright expressed skepticism that a document might be relevant to a cross-examination but not responsive to a prior discovery request—and that any exceptions would be the result of a very rare set of circumstances.
  • Examination consistency: If the Court overrules a speculation-based objection during direct examination regarding your witness’s belief, you can expect to have your own speculation-based objection overruled when your adversary asks your witness about the basis for that belief.
  • Travel tips: Favorite billboard between Waco and Austin: “One of these days, you’re going to love I-35. Till then, be careful.” (I question the premise, but I still chuckled.)
  • Unintentional anonymity: Not specific to the Waco Division, but be careful when assuming who’s behind the ubiquitous facemasks: Yours truly was mistaken both by an expert for his counsel, and by one party for the other party’s corporate witness. (No privilege-waiving conversations occurred.)

As for others’ coverage, there’s a particularly interesting exchange covered by Scott Graham of entitled “How a Motion to Transfer Out of the Western District of Texas Came Back to Haunt Roku” (URL title/subheading “Did Roku Forfeit Its Right to Be Texan?”) This is subscription-only, but it spotlights a very interesting issue identified sua sponte by Judge Albright, regarding tension between the Texas connections delivered in Roku’s corporate witness’s trial testimony (a common tactic for jury appeal), and Roku’s prior transfer motion briefing directed to the alleged inconvenience of litigating in Texas. Bottom line—remember what you’ve said before; the Court is paying attention!

Proceedings will recommence Tuesday morning at 10:30AM. Roku has just one more expert witness to present, and the Court expects that both the jury charge and summations will be completed by end of day. Deliberations, of course, will be in the jury’s hands.

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We’re going to dispense with the full Link Roundup for this week, but we’ll return to more regularly-scheduled programming next week.

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