Apple V. Samsung: Samsung Moves To Preclude Apple From Commenting On Samsung's Failure To Call Certain Witnesses At Trial

As the patent trial between Samsung and Apple continues, Samsung moved to preclude Apple from either eliciting testimony or attorney comment on Samsung's failure to call certain witnesses to testify at trial. In its motion, Samsung asserted that permitting such testimony would be prejudicial and would be inappropriate because the district court limited the parties to a 25-hour trial time limit. In analyzing Samsung's request, the district court noted that "Samsung has not identified, any case law supporting Samsung's requested blanket prohibition on testimony or attorney comment regarding either party's failure to call particular witnesses." Contrary to Samsung's position, the district court found that "[c]ounsel may comment to the jury on the failure to call a witness or the judge may instruct on the presumption." Food Machinery & Chem. Corp. v. Meader, 294 F.2d 377, 384 (9th Cir. 1961). Furthermore, both parties have been subject to the same time limit and other legal and procedural constraints of which Samsung complains, and both parties are equally free to point out the alleged deficiencies in the opposing party's case, to the extent permitted by law. In fact, during cross-examination of Apple's experts, Samsung asked why Apple's experts had not communicated directly with certain Apple inventors, who are still employed by Apple and available. Thus, the jury could have drawn inferences about these inventors' ability to testify and their absence at trial." Nonetheless, the district court did caution that misuse of the "missing witness" rule could be grounds for a curative instruction to the jury. "As a general matter, the 'missing witness' or 'uncalled witness' rule allows a party to 'properly argue to the jury the possibility of drawing [an adverse] inference from the absence of a witness,' provided that the party first 'establish[es] that the missing witness was peculiarly within the adversary's power to produce.' Chicago College of Osteopathic Med. V. George A. Fuller Co., 719 F.2d 1335, 1353 (7th Cir...