1 IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

 2 AUSTIN DIVISION

 3 VOXER, INC. and VOXER IP LLC, ) AU:20-CV-00655-LY

)

 4 Plaintiffs, )

)

 5 v. ) AUSTIN, TEXAS 

)

 6 META PLATFORMS, INC., f/k/a )

FACEBOOK, INC., and INSTAGRAM LLC, )

 7 )

 Defendants. ) SEPTEMBER 12, 2022

 8

 9 **********************************************

TRANSCRIPT OF JURY TRIAL

 10 VOLUME 1

BEFORE THE HONORABLE LEE YEAKEL

 11 **********************************************

 12 APPEARANCES: 

 13 FOR THE PLAINTIFFS: G. BLAKE THOMPSON 

MANN TINDEL THOMPSON 

 14 201 E. HOWARD STREET 

HENDERSON, TEXAS 75654

 15

MICHAEL D. POWELL

 16 SAM STAKE 

CHRISTINE WEIJIA CHEN

 17 OGNJEN ZIVOJNOVIC

QUINN EMANUEL URQUHART & SULLIVAN LLP 

 18 50 CALIFORNIA STREET, 22ND FLOOR 

SAN FRANCISCO, CALIFORNIA 94111

 19

ROBERT W. STONE 

 20 QUINN EMANUEL URQUHART & SULLIVAN LLP 

555 TWIN DOLPHIN DRIVE, 5TH FLOOR 

 21 REDWOOD SHORES, CALIFORNIA 94065

 22 GAVIN SNYDER 

QUINN EMANUEL URQUHART & SULLIVAN LLP 

 23 1109 FIRST AVENUE, SUITE 210 

SEATTLE, WASHINGTON 98101

 24

 25

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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Case 1:20-cv-00655-DAE Document 338 Filed 10/12/22 Page 1 of 116
 1 FOR THE DEFENDANTS: MICHAEL E. JONES 

SHAUN WILLIAM HASSETT

 2 POTTER MINTON PC 

110 NORTH COLLEGE, SUITE 500 

 3 TYLER, TEXAS 75702

 4 ROBERT A. VAN NEST 

CHRISTA M. ANDERSON

 5 DAVID J. SILBERT

EUGENE M. PAIGE

 6 PUJA V. PARIKH

PAVEN MALHOTRA

 7 JASON S. GEORGE

SEAN M. ARENSON

 8 VISHESH NARAYEN

KEKER, VAN NEST & PETERS LLP 

 9 633 BATTERY STREET 

SAN FRANCISCO, CALIFORNIA 94111-1809

 10

BLAINE H. EVANSON 

 11 GIBSON, DUNN & CRUTCHER LLP 

3161 MICHELSON DRIVE 

 12 IRVINE, CALIFORNIA 92612

 13 COURT REPORTER: ARLINDA RODRIGUEZ, CSR 

501 WEST 5TH STREET, SUITE 4152

 14 AUSTIN, TEXAS 78701

(512) 391-8791

 15

 16

 17

 18

 19

 20

 21

 22

 23

 24 Proceedings recorded by computerized stenography, transcript 

 25 produced by computer.

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

2

Case 1:20-cv-00655-DAE Document 338 Filed 10/12/22 Page 2 of 116
13:01:45 1 (Open court, no jury) 

13:01:45 2 THE COURT: We're here because I understand there's a 

13:01:47 3 matter we need to take up before we start selecting the jury in 

13:01:53 4 Cause Number 20-CV-655, Voxer and others v. Meta Platforms and 

13:02:01 5 others. 

13:02:02 6 So who wants to proceed with where we are today? 

13:02:04 7 MR. POWELL: Good morning, Your Honor. Mike Powell 

13:02:06 8 for the plaintiff, Voxer. The plaintiff does have one issue it 

13:02:09 9 would like to raise regarding the limine rulings. The Court 

13:02:13 10 advised that the parties, in this case, Voxer, should request 

13:02:17 11 leave before seeking to use certain evidence in the case. That 

13:02:22 12 evidence that we're interested in does come up in the opening 

13:02:26 13 statement and with some early witnesses. So we're hoping the 

13:02:30 14 Court will indulge hearing our argument to request leave to 

13:02:33 15 introduce that evidence.

13:02:34 16 THE COURT: As long as it's short.

13:02:36 17 MR. POWELL: It will be. With the Court's 

13:02:39 18 permission, I do have some PowerPoint slides that I think will 

13:02:40 19 help illustrate the issues. I can hand up -- 

13:02:43 20 THE COURT: That doesn't lead to short.

13:02:48 21 MR. POWELL: I think it's only four or five slides, 

13:02:50 22 just to present the evidence so you can see what we're talking 

13:02:53 23 about.

13:02:54 24 THE COURT: Pass them up.

13:03:03 25 MR. POWELL: And I don't know if the electronic 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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Case 1:20-cv-00655-DAE Document 338 Filed 10/12/22 Page 3 of 116
13:03:05 1 system is live. But if we could pull up the first slide, I'm 

13:03:08 2 just going to compare quickly, Your Honor, Motion in Limine 

13:03:11 3 Number 3, which you granted, and Motion in Limine Number 4, 

13:03:15 4 which was withdrawn by the defense. 

13:03:18 5 In both motions the subject matter that the defense 

13:03:24 6 was concerned with is, I think, the same. In both instances 

13:03:28 7 they were worried about an e-mail from Mark Zuckerberg dated 

13:03:33 8 March 2012 which advocated for copying competitor technology 

13:03:38 9 such as Voxer.

13:03:39 10 Voxer is actually mentioned in that e-mail, and it 

13:03:42 11 relates to Mr. Zuckerberg's trip to China, where he was 

13:03:45 12 impressed by their ability to copy other people's technology 

13:03:49 13 and quickly bring it to market. And the -- the reference was 

13:03:53 14 to Voxer because two Chinese companies had done just that and 

13:03:57 15 were having great success in the market in Asia because of it. 

13:04:01 16 The second category is about completion, whether the 

13:04:07 17 parties are competitors and whether Facebook's actions in 

13:04:10 18 cutting off Voxer from what's called its Friends API, 

13:04:14 19 Application Programming Interface, is a fact that the jury 

13:04:17 20 should hear in this case.

13:04:18 21 In Motion in Limine Number 3, the purported reason to 

13:04:22 22 exclude was, quote, Voxer's conduct in this litigation to date 

13:04:27 23 has made clear that it intends to try to piggyback on negative 

13:04:32 24 publicity directed to Facebook in recent years and turn this 

13:04:35 25 patent infringement matter into a de facto referendum on 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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13:04:38 1 Facebook's corporate citizenship.

13:04:39 2 In Motion in Limine Number 4 we're going to find the 

13:04:42 3 same evidence being presented, or they're attempting to 

13:04:47 4 exclude. The difference here -- the only difference here is 

13:04:49 5 that, as to that competitor category, they limited that motion 

13:04:53 6 to just matters in 2012.

13:04:56 7 Now, they did that, importantly, because the decision 

13:04:59 8 to cut Voxer off from the Friends API happened in January of 

13:05:05 9 2013. And actually happened as a culmination of the 

13:05:08 10 discussions that Voxer and Facebook were having about whether 

13:05:11 11 they were going to acquire Voxer, license its technology, 

13:05:15 12 whether they were or were not competitors. 

13:05:17 13 At some point in that process in early 2013, Facebook 

13:05:21 14 decides you are a competitor; we're going to cut you off. And 

13:05:25 15 the contention by Voxer is that activity led to Voxer's 

13:05:29 16 ultimate financial demise.

13:05:31 17 The reason here in MIL Number 4, they again accuse us 

13:05:34 18 of seeking to capitalize on negative publicity directed to 

13:05:38 19 Facebook. 

13:05:39 20 The point, Your Honor, is we're not trying to bring 

13:05:41 21 in Facebook's misdeeds globally. There may be several 

13:05:46 22 perceived misdeeds that have nothing to do with this case. The 

13:05:48 23 misdeeds that we're interested in are specifically tied to 

13:05:50 24 Voxer. The Mark Zuckerberg e-mail involves Voxer's technology 

13:05:55 25 being copied in China and Mark Zuckerberg saying that sounds 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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Case 1:20-cv-00655-DAE Document 338 Filed 10/12/22 Page 5 of 116
13:05:58 1 like a good idea.

13:05:59 2 The other e-mails and internal communications relate 

13:06:03 3 to whether or not Voxer is a competitor and Facebook's decision 

13:06:07 4 to cut them off from a very important interface that was a 

13:06:10 5 third of Voxer's business in 2013.

13:06:12 6 Now, tying it to the case, slide 4, this is 

13:06:17 7 Cathy Lawton. This is the expert report for the defense. 

13:06:21 8 She's going to offer the opinion that I've highlighted here. 

13:06:24 9 Voxer had a history of failing to meet its projections. 

13:06:28 10 Voxer's financial condition indicates that the form of the 

13:06:31 11 license agreement would be a lump sum. And she talks about the 

13:06:35 12 lackluster financial performance leading up to the hypothetical 

13:06:39 13 negotiation, Your Honor, which in this case is November of 

13:06:42 14 2018. 

13:06:44 15 All of this conduct leads into the hypothetical 

13:06:47 16 negotiation that the real reason Voxer's financial condition 

13:06:51 17 suffered is Facebook stepped in and cut it off from the Friends 

13:06:54 18 Application Programming Interface, which tubed its business. 

13:06:58 19 The next slide will show how this same information, 

13:07:03 20 facts, and evidence is relevant to the issue of willful 

13:07:06 21 infringement. This excerpt is from Voxer's opposition to the 

13:07:11 22 motion for summary judgment on willfulness which, as Your Honor 

13:07:14 23 knows, the defendants withdrew. They withdrew it because they 

13:07:18 24 knew there was a triable issue of fact based on the exact 

13:07:22 25 evidence they now seek to exclude. We argued in that 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

6

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13:07:26 1 opposition Facebook determined that Voxer app was a competing 

13:07:29 2 social network and restricted the Voxer app's access to 

13:07:32 3 Facebook Friends API. That's bad-faith conduct and shows an 

13:07:37 4 intent to harm Voxer.

13:07:38 5 We know from Ms. Lawton's expert report, if we can go 

13:07:43 6 to the second cite. I think it's page 6 -- no. It is 

13:07:50 7 page 615. This isn't in the slide deck, Your Honor, but here's 

13:07:56 8 another opinion from Ms. Lawton: Quote, Voxer and Facebook are 

13:08:00 9 not competitors, end quote.

13:08:01 10 She intends to argue to the jury that they're not 

13:08:05 11 competitors, whereas the documents that we seek to use and 

13:08:08 12 profile in the opening say the exact opposite. They say that 

13:08:11 13 Mark Zuckerberg and his senior executives discussed ad nauseam 

13:08:17 14 Voxer's business and came to the exact opposite conclusion. 

13:08:20 15 They said they are competitive and we must harm their business. 

13:08:23 16 Otherwise, it's a problem for us going forward. 

13:08:25 17 That information is necessary to explain the entire 

13:08:28 18 commercial relationship between Voxer and Facebook that will 

13:08:32 19 inform the Georgia-Pacific Factor analysis that goes into the 

13:08:36 20 hypothetical negotiation.

13:08:37 21 Thank you, Your Honor.

13:08:42 22 MR. VAN NEST: Good afternoon, Your Honor. 

13:08:44 23 Bob Van Nest for Meta. 

13:08:47 24 Your Honor granted Motion in Limine 3, which was 

13:08:50 25 directed to keeping out evidence of Facebook's decision in 2013 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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13:08:56 1 to prevent Voxer from using the Friends API platform. And 

13:09:00 2 there's a good reason for that.

13:09:02 3 This evidence is essentially an unpled antitrust 

13:09:06 4 claim lobbed into the middle of a patent case. It has nothing 

13:09:10 5 to do with patent infringement. It happened in 2013, five 

13:09:14 6 years before the patents issued. It doesn't have anything to 

13:09:18 7 do with the patents. They hadn't even been applied for. It 

13:09:22 8 involves a different Facebook product than the accused product, 

13:09:25 9 which is Facebook Live. It involves Voxer's walkie-talkie app, 

13:09:31 10 which is a voice app, not video. 

13:09:35 11 And in a patent case, the but-for world we look to is 

13:09:39 12 a world in which there was no patent infringement. This has 

13:09:42 13 nothing do with that. And, as we said in our motion, 

13:09:45 14 Your Honor, it's highly prejudicial. They do want to tap into 

13:09:48 15 whatever feelings people have about social networking companies 

13:09:52 16 like Facebook, and they want to present Facebook as a bully 

13:09:58 17 that kicked them off. 

13:10:00 18 Now, this happened in 2013. They could have filed a 

13:10:03 19 claim then, but they didn't. They could have filed a claim as 

13:10:06 20 part of this case, but they didn't. This evidence has nothing 

13:10:08 21 to do with any issue the jury is going to be hearing. And 

13:10:13 22 that's why I think Your Honor granted the motion in the first 

13:10:15 23 place, and that's what should pertain.

13:10:17 24 They want to turn this case into sort of a referendum 

13:10:20 25 or the corporate conduct of Facebook, which is going to amount 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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13:10:24 1 of a real free-for-all.

13:10:26 2 Now, as to these opinions by Ms. Lawton and others, 

13:10:29 3 none of those opinions have been expressed yet. I obviously 

13:10:33 4 understand that, if we open the door to something, then 

13:10:35 5 Your Honor may revisit this. But, as the case stands now, it's 

13:10:39 6 a patent infringement case where they're alleging infringement 

13:10:43 7 of two patents that didn't issue until 2018 and 2019 and in 

13:10:48 8 which the conduct of Facebook or the conduct of Voxer back in 

13:10:52 9 2013 has absolutely nothing to do with it.

13:10:54 10 So that's the -- that was the basis for the motion. 

13:10:59 11 I assume that was the basis for Your Honor's ruling. But, in 

13:11:02 12 any event, it's correct that if we start to allow this type of 

13:11:06 13 thing, we're going to have a free-for-all on our hands where 

13:11:09 14 we're talking about conduct that just has nothing whatsoever to 

13:11:13 15 do with patent infringement or patent damages or willfulness. 

13:11:17 16 Willfulness in a patent case, as Your Honor is well 

13:11:20 17 aware, depends on knowing about the patents and willfully 

13:11:23 18 infringing them. These patents didn't even issue until five 

13:11:27 19 years after 2013 and 2018. They weren't even applied for until 

13:11:32 20 Facebook Live was on the market. They weren't applied for 

13:11:35 21 until four years after these events that counsel is talking 

13:11:38 22 about.

13:11:38 23 So, again, we have no problem with them talking about 

13:11:43 24 discussions they had with Facebook about selling them their 

13:11:48 25 technology. Okay. That -- but this -- the idea that they can 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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13:11:52 1 come in an unpled antitrust claim or breach of contract or 

13:11:57 2 whatever they want to call it and turn this case into a 

13:12:01 3 free-for-all is just not the way we ought to be going. We 

13:12:04 4 ought to be focusing the jury's attention on the issues as to 

13:12:07 5 patent infringement, which are plenty complicated, as 

13:12:11 6 Your Honor knows. We've got two patents, six claims, an 

13:12:13 7 invalidity claim, infringement claims, and a willfulness claim. 

13:12:17 8 This evidence has nothing to do with any of those and 

13:12:21 9 is only going to serve to confuse our jurors, prolong the 

13:12:25 10 trial, turn it into a free-for-all. And for that reason I 

13:12:28 11 think Your Honor was right to stick with the ruling that you 

13:12:32 12 made on Motion in Limine 3.

13:12:36 13 THE COURT: Mr. Powell, you can respond briefly.

13:12:39 14 MR. POWELL: Thank you, Your Honor.

13:12:40 15 I'm not sure what I just heard, but willful 

13:12:43 16 infringement absolutely covers the conduct that we're talking 

13:12:46 17 about. There's no underhanded way to assert breach of contract 

13:12:51 18 or anticompetition. That's just pure fallacy, Your Honor. 

13:12:55 19 The conduct we're talking about is directed at Voxer, 

13:12:59 20 not the world, not the market, not harming consumers. And, 

13:13:03 21 yeah, if they breached a contract called their terms of use to 

13:13:07 22 inflict pain on my client, of course that's relevant to 

13:13:09 23 willfulness. It shows an intent and motive to harm. So I'm 

13:13:13 24 not sure what case Mr. Van Nest is litigating, but it ain't the 

13:13:17 25 case that's here today. 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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13:13:18 1 The hypothetical negotiation, the but-for world, 

13:13:21 2 yeah, it's November 2018. The but-for world starts there. 

13:13:25 3 This conduct happened before. It's leading up to that 

13:13:28 4 negotiation. It's real-world, not but-for world. And there's 

13:13:32 5 no fantastical situation where you can sweep this evidence 

13:13:36 6 under the carpet and pretend it didn't exist. 

13:13:39 7 They've already allowed in all the communications 

13:13:42 8 from 2012. That discussion continues into 2013, and it ends 

13:13:46 9 when Facebook cuts us off from the API. It would be incredibly 

13:13:50 10 unfair not to let the jury hear the culmination of the parties' 

13:13:53 11 commercial relationship over a two-year period just because 

13:13:56 12 they're worried that their client has a bad reputation in the 

13:14:00 13 world. That's not our problem, that's theirs. We're trying 

13:14:02 14 this case, not the case that he just told you about.

13:14:05 15 THE COURT: Well, the case the court sees that we're 

13:14:07 16 going to try is a patent infringement case. At least that's 

13:14:14 17 what we're going to start out trying, and we'll see how it 

13:14:17 18 develops from that point forward. 

13:14:20 19 I'm going to deny the motion to bring these things 

13:14:23 20 out in opening statements. Make your opening statements based 

13:14:27 21 solely on patent infringement. We will then see how this 

13:14:31 22 progresses. And if there is an opening of the door or if there 

13:14:36 23 is reason that I think that it should come back in, it can come 

13:14:41 24 back in later. But it's not going to come in in opening 

13:14:44 25 statements. I think you can open this case well enough, and 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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13:14:49 1 we'll go forward from there.

13:14:51 2 MR. POWELL: Thank you, Your Honor.

13:14:52 3 THE COURT: So what else do we have before we get the 

13:14:56 4 jury up here at two o'clock? Are we ready to go.

13:15:01 5 MR. STONE: Nothing from the plaintiff, Your Honor.

13:15:03 6 MR. SILBERT: Your Honor, David Silbert for Meta. 

13:15:05 7 Just one housekeeping issue, which is that we sent the Court a 

13:15:09 8 letter on Friday to Ms. Baffes about a proposed confidentiality 

13:15:14 9 protocol. I just wanted to check in with the Court on the 

13:15:17 10 status of that. There will be exhibits admitted, I assume, 

13:15:21 11 starting tomorrow.

13:15:21 12 THE COURT: Well, yes, I have reviewed that. Are the 

13:15:27 13 parties in agreement on that protocol? 

13:15:30 14 MR. STONE: We didn't have an objection to it, Your 

13:15:32 15 Honor. Robert Stone for the plaintiff.

13:15:34 16 THE COURT: Then we'll proceed with that protocol.

13:15:36 17 MR. SILBERT: Thank you so much, Your Honor.

13:15:37 18 THE COURT: Now, the way we'll proceed just -- and 

13:15:40 19 I'll give you some time to set up because it's going to affect 

13:15:44 20 people in the audience -- is the way I select a jury is 

13:15:48 21 probably a whole lot closer to what you've seen in state court. 

13:15:51 22 I don't bring people up to the bench and do that kind of thing. 

13:15:55 23 They'll be in the pews. I will run through my 

13:15:58 24 questions, which you'll find are going to be cumulative of some 

13:16:03 25 of yours and are going to be cumulative of some of the 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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13:16:11 1 questionnaires. But I think we need to reinforce some things. 

13:16:13 2 When I get through with my questions, then the plaintiff gets 

13:16:19 3 their 30 minutes of voir dire I've allotted and then the 

13:16:22 4 defendant does. You can spend your time just about any way you 

13:16:27 5 want to except in argument. This is voir dire. It's not 

13:16:32 6 argument. You can ask your pet questions that I haven't had an 

13:16:35 7 objection to, and I don't have an objection to any of what you 

13:16:38 8 submitted. So don't read into it that I may have had an 

13:16:43 9 objection if I don't ask your question. 

13:16:45 10 You can ask additional questions off of the 

13:16:48 11 questionnaires or to follow up anything that any of the jurors 

13:16:53 12 have -- potential jurors have indicated. Or you can just stand 

13:17:00 13 there and look nice and tell them how pretty you are and what a 

13:17:03 14 great lawyer you are and you're going to win your case without 

13:17:05 15 arguing that.

13:17:06 16 Now, one of the things, if I didn't make it clear 

13:17:09 17 when we talked about jury selection before, I'm going to be 

13:17:13 18 keeping notes up here of responses that jurors make that I 

13:17:20 19 think might be problematic as to whether somebody might be a 

13:17:24 20 good juror or a bad juror or whether they really want to serve 

13:17:28 21 on this jury or whether they might be distracted. And that 

13:17:40 22 means issues that are not grounds for legally excluding a 

13:17:46 23 juror.

13:17:46 24 Before you make your challenges for cause and after 

13:17:54 25 the jury panel is out of the room, I'm going to go though my 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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13:17:57 1 list; I urge you to be keeping your own lists. And I'll get to 

13:17:59 2 a juror and I'll say, I've got a problem with what this juror 

13:18:04 3 said. I'll go to the plaintiff first. If the plaintiff is 

13:18:08 4 willing to strike the juror, then I'll go to the defendant. 

13:18:11 5 We're not going to argue this, but if you both agree that there 

13:18:18 6 is a juror you don't want, we'll take them off and they will 

13:18:20 7 not appear in your strike lists. 

13:18:23 8 I do that because I found when I was on your side of 

13:18:26 9 the bench for many years that, if somebody really didn't want 

13:18:32 10 to be on a jury, they did not make a good juror. And they 

13:18:35 11 always blamed it on somebody, and I was always afraid I was 

13:18:39 12 going to be the one they blamed it on that they ended up on the 

13:18:42 13 jury. But this is not going to be argued. If the plaintiff 

13:18:44 14 says, no, we want the juror retained, then I don't ever get to 

13:18:47 15 the defendant and vice versa. But that way, if you both agree 

13:18:50 16 there's a problem juror out there, since you're only getting 

13:18:52 17 three strikes, we'll take that up. 

13:18:58 18 Now, we're not going to tell the jurors that we're 

13:19:00 19 doing because that would start a land rush and we're not going 

13:19:03 20 to do that. But after we get through that, then I will take up 

13:19:05 21 your challenges for cause, and then we'll recess for you to 

13:19:07 22 strike your lists. And then we'll get the jurors back in here 

13:19:11 23 and we will seat the eight that are actually going to try your 

13:19:18 24 case.

13:19:19 25 I do not -- we're not going to go to opening 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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Case 1:20-cv-00655-DAE Document 338 Filed 10/12/22 Page 14 of 116
13:19:21 1 statements this evening. We're going to get the jury selected 

13:19:25 2 this evening, and then we'll come back in the morning, you'll 

13:19:27 3 make your opening statements, and call your first witness.

13:19:31 4 Anything else between now and two o'clock we need to 

13:19:34 5 take up, or are we ready for the jury? 

13:19:38 6 MR. STONE: Not for the plaintiff.

13:19:40 7 MR. VAN NEST: I think we're ready, Your Honor. 

13:19:41 8 Thank you.

13:19:41 9 THE COURT: Ms. Oakes, you may let Ms. Demings know 

13:19:44 10 that she can go ahead and bring the jurors up an seat them to 

13:19:52 11 where they're seated by two o'clock or in that range. When 

13:19:55 12 they're through with their orientation, let me know when 

13:19:58 13 they're ready for us to proceed with voir dire.

13:20:00 14 MR. VAN NEST: Your Honor, could I ask one quick 

13:20:02 15 question. And I apologize because I think you told us this 

13:20:05 16 last time. But are they seeing the patent video now? 

13:20:07 17 THE COURT: Yes.

13:20:08 18 MR. VAN NEST: So they're seeing it now, and they'll 

13:20:09 19 have seen it -- they won't see it again tomorrow.

13:20:12 20 THE COURT: No. They won't see it again tomorrow.

13:20:15 21 MR. VAN NEST: Thank you. That's what I thought.

13:20:16 22 THE COURT: I was just at the Federal Circuit 

13:20:18 23 Judicial Conference, and we had judges meeting. It's always 

13:20:19 24 interesting to see how people around the country do things. 

13:20:22 25 Some judges view the video with the jurors and ask -- 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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13:20:27 1 and answer any questions that they may have. Those judges I 

13:20:30 2 suspect come from jurisdictions that have a lot more free time 

13:20:35 3 on their hands than I do. 

13:20:37 4 But, no, the jurors will have seen the video before 

13:20:40 5 they're up here, before the voir dire starts, and they won't 

13:20:42 6 see it again.

13:20:43 7 MR. VAN NEST: Great. Thank you, Your Honor.

13:20:44 8 MR. STONE: Thank you, Your Honor. 

13:20:45 9 THE COURT: All right. Thank you.

14:13:41 10 We're in recess for a few minutes.

14:13:41 11 (Open court, prospective jurors present)

14:50:44 12 THE COURT: The jurors are out in the hall ready to 

14:50:46 13 be seated. Let me ask a question, because I generally at the 

14:51:00 14 appropriate point in the voir dire ask the lawyers, one from 

14:51:02 15 each side, to identify themselves for the plaintiff. Who 

14:51:05 16 should I call on to introduce yourself and the people at your 

14:51:08 17 counsel table and the witnesses you expect to call?

14:04:09 18 MR. THOMPSON: Blake Thompson for the plaintiff, 

14:04:11 19 Your Honor. 

14:04:12 20 THE COURT: And for the defendant?

14:04:13 21 MR. JONES: Your Honor, Mike Jones.

14:04:15 22 THE COURT: All right. We've got it.

14:04:17 23 MR. JONES: Thank you, sir.

14:04:18 24 THE COURT: Are we ready to go.

14:04:21 25 MR. THOMPSON: We're ready. 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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14:04:21 1 THE COURT: All right. Let's bring the jurors -- the 

14:04:23 2 potential jurors in and seat them, then. And they are going to 

14:04:25 3 be on my right; is that correct? All right.

14:04:28 4 (Open court, prospective jurors present) 

14:06:39 5 THE COURT: All right. You may be seated.

14:06:45 6 Good afternoon, ladies and gentlemen. I'd like to 

14:06:49 7 welcome all members of the jury panel to the United States 

14:06:52 8 District Court here in Austin. My name is Lee Yeakel, and I am 

14:06:56 9 one of two district judges for the Austin Division of the 

14:07:00 10 Western District of Texas. 

14:07:02 11 As Ms. Demings, the Division Deputy Clerk, explained 

14:07:05 12 to you, the Western District of Texas consists of seven 

14:07:09 13 divisions: Austin, Waco, San Antonio, El Paso, Del Rio, Pecos, 

14:07:17 14 and Midland-Odessa. The federal court here in Austin considers 

14:07:22 15 appropriate federal actions brought in Bastrop, Blanco, 

14:07:26 16 Burleson, Burnet, Caldwell, Gillespie, Hays, Kimble, Lampasas, 

14:07:31 17 Lee, Llano, Mason, McCulloch, San Saba, Travis, Washington, and 

14:07:37 18 Williamson Counties.

14:07:39 19 The area covered by the Austin Division is quite 

14:07:42 20 large, and that is the reason that some of you were required to 

14:07:46 21 travel a substantial distance to participate in these court 

14:07:50 22 proceedings. The court recognizes the sacrifices that many of 

14:07:55 23 you are making to perform this jury service, and I greatly 

14:07:58 24 appreciate your efforts. 

14:08:00 25 Now, you've been summoned to try a civil case. When 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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14:08:06 1 parties to a federal lawsuit like this one desire and qualify 

14:08:08 2 for a resolution of their case by a jury, federal law entitles 

14:08:13 3 them to receive the benefit of an impartial jury of their 

14:08:16 4 peers. To obtain such a jury, persons are called from 

14:08:21 5 throughout the area which comprises that particular division of 

14:08:25 6 the district, in this case, from the 17 counties that make up 

14:08:28 7 the Austin Division. 

14:08:31 8 Persons are selected at random to assure that they 

14:08:35 9 represent a cross-section of people. It was this random 

14:08:40 10 selection process that resulted in your being here today. In 

14:08:43 11 fact, you were randomly selected by a computer. So if you're 

14:08:47 12 in the group of people that believes a computer has never done 

14:08:51 13 you a favor, I'm sure that has been reinforced by your name 

14:08:55 14 popping out of the computer and getting you down here today. 

14:08:59 15 But, again, your participation in the jury process, which is 

14:09:02 16 vital to our nation's judicial system, is especially 

14:09:08 17 appreciated by the court and the parties involved in this 

14:09:10 18 litigation. 

14:09:12 19 Now, let me share with you a little bit about the 

14:09:15 20 jury system and its importance to our society and why it is 

14:09:18 21 important to this court and these parties and you. 

14:09:22 22 Calling citizens to hear disputes has been known 

14:09:26 23 throughout history. The jury system is mentioned as far back 

14:09:30 24 as the Pentateuch, the first five books of the Hebrew Bible. 

14:09:34 25 The Jewish people would impanel juries to decide questions of 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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14:09:37 1 property value and property ownership, and there is some 

14:09:43 2 thought that, traditionally, the reason we have twelve jurors 

14:09:46 3 in our typical jury is a reflection of the twelve Tribes of 

14:09:50 4 Israel and the Twelve Apostles. Although, as time has moved 

14:09:53 5 on, we have adjusted that a little bit, and we're only going to 

14:09:57 6 select eight of you for jury service today. 

14:10:00 7 Modern-day juries have historic roots in Byzantine, 

14:10:04 8 Greek, Roman, and European systems. The Greeks began using the 

14:10:09 9 jury system in about 1500 BC. Greek juries were sometimes 

14:10:14 10 huge. 501 jurors decided the fate of Socrates. And you think 

14:10:22 11 you've had some parking problems here today when we only 

14:10:25 12 summoned about 23 of you to be on this panel.

14:10:27 13 The Romans adopted the jury system from the Greeks. 

14:10:32 14 The Romans are responsible for bringing the jury system to 

14:10:36 15 England in about the fourth century. The English experience 

14:10:39 16 has been a leading influence in shaping the modern American 

14:10:43 17 jury system. 

14:10:45 18 Following its advance by the Romans, England had a 

14:10:49 19 rough system of juries in the late ninth century under Alfred. 

14:10:53 20 The Normans, following their arrival in the 11th century, 

14:10:57 21 established the foundations of the modern jury system. 

14:11:01 22 In 1215 a tyrannical English king, King John, 

14:11:07 23 attempted to do away with the right to trial by jury which had 

14:11:10 24 been part of the English judicial system for over 700 years. 

14:11:14 25 The English people would not stand for the deprivation of this 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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14:11:18 1 right, among others that they cherished, so in a misty meadow 

14:11:22 2 called Runnymede, King John was forced to sign the Magna Carta, 

14:11:27 3 which guaranteed to the English people the right to jury trials 

14:11:29 4 and other rights as well. Twenty-eight states have adopted the 

14:11:34 5 language of the Magna Carta verbatim and placed it in their 

14:11:39 6 state constitutions in ensuring the right to a trial by jury in 

14:11:43 7 state court.

14:11:44 8 The concept of jury trials was so deeply ingrained in 

14:11:48 9 the American colonists in the settling of America, that when 

14:11:51 10 another tyrannical English king, King George, III, attempted to 

14:11:56 11 deny the right to jury trials to the colonists, 

14:11:59 12 Thomas Jefferson, for the Second Continental Congress, in 

14:12:04 13 penning the complaints against the Crown, set out the denial of 

14:12:08 14 the right to jury trial as one of the specific bases for 

14:12:11 15 separation from England. The War of Independence followed, 

14:12:16 16 people fought and died to secure our rights and independence, 

14:12:20 17 and today the United States Constitution guarantees the right 

14:12:23 18 to jury trials.

14:12:25 19 Now, democracy makes very few demands of its 

14:12:29 20 citizens. We're required to pay taxes and render service in 

14:12:33 21 time of war. Some have said that jury service is akin to 

14:12:37 22 service for your country in time of war in importance, and I 

14:12:41 23 have no quarrel with that statement.

14:12:43 24 To the average citizen there are, in my opinion, but 

14:12:47 25 two things you must do to preserve democracy: And that's to 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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14:12:51 1 respond for jury service and to vote. And your presence here 

14:12:55 2 today satisfies one of those, and you'll have the opportunity 

14:12:59 3 in November for the other. 

14:13:02 4 Now, we're about to select a jury for a case styled 

14:13:06 5 Voxer, Incorporated and Voxer IP, LLC, versus Meta Platforms, 

14:13:13 6 Incorporated, formally known as Facebook, Inc., and Instagram, 

14:13:18 7 LLC. It is Cause Number 1:20-CV-655-LY on the docket of my 

14:13:26 8 court.

14:13:26 9 We call what we're doing now voir dire, which derives 

14:13:32 10 its name from the French vua-deer, and many people pronounce it 

14:13:37 11 vua-deer. But in Texas we just say vor-dire. It seems to roll 

14:13:41 12 off the tongue better and go better with BBQ than vua-deer. So 

14:13:46 13 we're not in Paris today, so we're going to pronounce it the 

14:13:49 14 Texas way. 

14:13:50 15 Now, I will ask you a number of questions, and it's 

14:13:55 16 imperative that you listen carefully to the questions I'm about 

14:13:58 17 to ask because you may be selected to serve on the jury in this 

14:14:01 18 case.

14:14:01 19 After I have finished asking questions, the attorneys 

14:14:05 20 for each side will have an opportunity to ask questions, and 

14:14:10 21 then the attorneys will exercise strikes that they are allotted 

14:14:14 22 to exclude certain members of the panel so that we end up with 

14:14:18 23 eight jurors, as I've mentioned, who will ultimately remain and 

14:14:23 24 hear the evidence in this case.

14:14:24 25 The process of voir dire requires the court and the 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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14:14:28 1 attorneys for each party to ask potential jurors about their 

14:14:35 2 backgrounds, knowledge, biases, and prejudices. In the process 

14:14:39 3 of doing this, these questions may at times feel intrusive to 

14:14:42 4 you. Please understand that it is certainly not the court or 

14:14:45 5 the parties' intention to intrude on your personal business. 

14:14:50 6 However, to ensure that the jury selected for this case has no 

14:14:54 7 knowledge of the facts or the parties to the case and holds no 

14:14:58 8 biases or prejudices, it is necessary to ask these questions. 

14:15:03 9 If at any time you would like to provide your answer 

14:15:06 10 to any question privately, please simply indicate that you 

14:15:10 11 would like to do so, I will have you approach the bench, and 

14:15:14 12 you can then answer the question with only the court and 

14:15:18 13 attorneys present.

14:15:19 14 When you answer a question, I would appreciate it if 

14:15:23 15 you would state your name and your seat number. That is the 

14:15:27 16 seat number you're in at this moment in the courtroom. And 

14:15:31 17 please use the microphone that will be provided to you by 

14:15:34 18 Ms. Baffes so that the court reporter's record will be able to 

14:15:38 19 reflect who is answering.

14:15:40 20 Now, Mr. Blake Thompson, would you please stand.

14:15:45 21 The person standing is Mr. Blake Thompson of the law 

14:15:49 22 firm of Mann, Tindel & Thompson, and he represents the 

14:15:53 23 plaintiffs in this case, Voxer Inc. and Voxer IP, LLC. 

14:15:59 24 Mr. Thompson would you please introduce the 

14:16:03 25 representatives, cocounsel, local counsel, legal assistants or 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

22

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14:16:07 1 others who are now or who will be seated at your counsel table 

14:16:12 2 during this trial.

14:16:15 3 MR. THOMPSON: Yes, Your Honor. Again, my name is 

14:16:17 4 Blake Thompson, and members of my team are Sam Stake, 

14:16:20 5 Mike Powell, Robert Stone, my client, Thomas Katis, and 

14:16:27 6 Johanna Hillard.

14:16:27 7 THE COURT: Mr. Thompson, would you please read to 

14:16:29 8 the members of the panel the list of all witnesses that 

14:16:32 9 Voxer -- that the Voxer parties expect to call in this case.

14:16:37 10 MR. THOMPSON: Yes, Your Honor. We'll be calling, 

14:16:38 11 again, our client Thomas Katis. We'll also be calling 

14:16:42 12 Matthew Ranney, Michael Mitzenmacher, Benjamin Davenport, 

14:16:47 13 Christopher Daniels, Peter Deng, and Alan Ratliff.

14:16:51 14 THE COURT: Members of the jury panel, do any of you 

14:16:54 15 recognize, or are any of you or any member of your family 

14:16:58 16 familiar with, to your knowledge, personally acquainted with, 

14:17:02 17 related to, had any business dealings with, or ever been 

14:17:06 18 employed by Voxer Incorporated, Voxer IP, LLC, or their lawyers 

14:17:12 19 or legal assistants who have been introduced, or any of the 

14:17:16 20 persons whose names Mr. Thompson has just listed for you? 

14:17:20 21 If so, please raise your hand.

16:19:02 22 (No response) 

14:17:25 23 THE COURT: Thank you. Mr. Jones, would you please 

14:17:28 24 stand.

14:17:30 25 MR. JONES: Yes, sir.

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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14:17:31 1 THE COURT: The person standing is Mr. Mike Jones 

14:17:34 2 from Potter Minton PC, and he represents the defendants in this 

14:17:38 3 case, Meta Platforms, Incorporated, formally known as Facebook, 

14:17:43 4 incorporated, and Instagram, LLC.

14:17:46 5 Mr. Jones, would you introduce the representatives 

14:17:49 6 cocounsel, local counsel, legal assistants, or others who are 

14:17:54 7 or will be seated at the counsel table with you.

14:17:57 8 MR. JONES: Thank you, Your Honor. Yes, sir. 

14:18:00 9 Seated at counsel table is our lead counsel, Robert 

14:18:04 10 Van Nest. Beside him is David Silbert. This is Mr. Paven 

14:18:15 11 Malhotra. Seated next to Mr. Malhotra is Puja Parikh. Seated 

14:18:21 12 next to her is Christa Anderson. Seated next to her is 

14:18:26 13 Gene Paige. My client is John Poffenberger from Facebook. 

14:18:34 14 Thank you, Your Honor.

14:18:35 15 THE COURT: Mr. Jones, would you please read to the 

14:18:37 16 members of the jury panel the list of all witnesses that the 

14:18:40 17 defendants expect to call in this case.

14:18:43 18 MR. JONES: Yes, sir. 

14:18:47 19 Dave Capra, Jeremiah Chan, Federico Larumbe, 

14:18:52 20 Ken Leland, Victor Loh, Abhischek Mathur, John Poffenberger, 

14:19:03 21 Jacob Stinson, Cathy Lawton, Samrat Bhattacharjee, and 

14:19:10 22 Kevin Jeffay, Your Honor.

14:19:12 23 THE COURT: Members of the jury panel, do any of you 

14:19:15 24 recognize, or are any of you or any member of your family known 

14:19:19 25 to you, familiar with, personally acquainted with, related to, 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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14:19:25 1 or had any business dealings with or ever been employed by the 

14:19:29 2 defendants or defendant's lawyers or legal assistants who were 

14:19:33 3 introduced or any of the persons whose name Mr. Jones has just 

14:19:36 4 listed for you? 

14:19:37 5 If so, please raise your hand.

16:21:47 6 (No response)

14:19:40 7 THE COURT: Thank you. You may be seated.

14:19:43 8 MR. JONES: Thank you, sir.

14:19:45 9 THE COURT: Ladies and gentlemen of the jury panel, 

14:19:47 10 to the best of your knowledge, have any of the attorneys in 

14:19:50 11 this case or members of their law firms acted as your attorney 

14:19:55 12 or the attorney for any member of your immediate family or 

14:19:58 13 close friends that you know about? 

16:22:10 14 (No response)

14:20:03 15 THE COURT: Do any of you recognize any other member 

14:20:07 16 of the panel as being a close, personal friend, acquaintance, 

14:20:11 17 or business associate? Now you laugh because I've just told 

14:20:15 18 you a computer selected all of you, but I asked that question 

14:20:18 19 one time and we had two people that had played golf in the same 

14:20:23 20 foursome for the last 20 years once or twice a week. 

14:20:26 21 So do any of you know any of the others of you on the 

14:20:29 22 jury panel? If so, please raise your hand.

16:22:43 23 (No response)

14:20:32 24 THE COURT: Do any of you know or do you know anyone 

14:20:41 25 that you know of that has interest in the outcome of this case? 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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14:20:46 1 (No response)

14:20:47 2 THE COURT: The attorneys, in consultation with me 

14:20:50 3 and in several discussions about this, have estimated that this 

14:20:55 4 case will take approximately six to seven trial days, which 

14:21:00 5 means we will move into next week and probably should finish 

14:21:05 6 this case up by the middle of the week. 

14:21:08 7 Is there anyone who would suffer any undue hardship 

14:21:12 8 or have any special problem serving on a jury for that length 

14:21:16 9 of time? I know it is a hardship and a problem for all of you, 

14:21:20 10 and your service is appreciated, but is there anyone that would 

14:21:24 11 suffer any undue hardship or problems?

14:21:31 12 (No response) 

14:21:31 13 THE COURT: Thank you. Do any of you have any 

14:21:32 14 illness in your family or any business problem or similar 

14:21:36 15 personal concern which would make it difficult for you if you 

14:21:40 16 were on this jury to be attentive to the evidence that's 

14:21:44 17 presented? 

14:21:44 18 If so, please raise your hand.

14:21:46 19 (No response)

14:21:46 20 THE COURT: Do any of you have any problem with your 

14:21:51 21 eyesight or your hearing or any other physical disability which 

14:21:55 22 in any manner would prevent you from either seeing or hearing 

14:21:59 23 the evidence presented at trial, knowing that the eight of you 

14:22:04 24 who are selected will be sitting over here in the jury box to 

14:22:07 25 my right, which is against the wall, and the witness will be 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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14:22:11 1 sitting in this stand here to my right. And we have pretty 

14:22:16 2 good microphone systems and electronic systems in here when 

14:22:21 3 they work. But know if there's a problem during this trial, 

14:22:25 4 everything you're looking at went to the lowest bidder. That's 

14:22:29 5 what the government gave us here. 

14:22:31 6 But is there anyone -- usually it's the court that's 

14:22:33 7 accused of having the bad eyesight or hearing, but is there any 

14:22:36 8 of you-all that might have a problem? 

16:24:53 9 (No response)

14:22:39 10 THE COURT: Seeing none, thank you. 

14:22:42 11 Now, Voxer asserts that the defendant's Facebook Live 

14:22:47 12 and Instagram Live services and features infringe on two 

14:22:54 13 patents that were issued to Voxer. Now, this is the assertion 

14:22:59 14 by the plaintiff. I'm not telling you this is what happened. 

14:23:02 15 This is what the claims are. You will make the decision as to 

14:23:06 16 what's happened.

14:23:07 17 But Voxer asserts that Meta and Instagram directly 

14:23:12 18 infringed Voxer's patents and directly infringed by inducing or 

14:23:16 19 contributing to end users' infringements. That's what they 

14:23:22 20 claim.

14:23:22 21 They additionally contain that Meta's, which was 

14:23:26 22 formally known as Facebook, infringement is willful because 

14:23:29 23 Facebook knew of Voxer's patents, knew that the Facebook Live 

14:23:34 24 and Instagram Live services and features infringed, but they 

14:23:38 25 deliberately chose to continue in their course of using the 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

27

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14:23:42 1 infringing services and features and inducing or contributing 

14:23:47 2 to end users' infringement.

14:23:49 3 Because of this, Voxer seeks damages for no less than 

14:23:53 4 a reasonable royalty for the defendant's alleged infringements, 

14:23:58 5 together with interest and costs.

14:24:01 6 Now, the defendants on the other hand, Facebook and 

14:24:09 7 Instagram, deny Voxer's allegations of patent infringement. 

14:24:13 8 And, first, Facebook contends that its Facebook Live and 

14:24:17 9 Instagram Live products do not infringe Voxer's patents. 

14:24:22 10 Facebook contends that it independently developed its Facebook 

14:24:26 11 Live and Instagram video products without using any of Voxer's 

14:24:31 12 claimed inventions.

14:24:32 13 So, again, like what I told you about Voxer, I'm not 

14:24:35 14 telling you that any of this is true. That will be your 

14:24:38 15 decision. This is what the defendant's allegations and 

14:24:42 16 positions are. 

14:24:43 17 Accordingly, Facebook contends that Voxer will fail 

14:24:47 18 in meeting its burden of proof to prove that Facebook practiced 

14:24:51 19 every aspect of Voxer's patented technology. And, second, 

14:24:55 20 Facebook contends that some of the patents Voxer asserts in 

14:25:00 21 this case are invalid. 

14:25:02 22 Now, patent law requires a patent to be found invalid 

14:25:07 23 if the claimed invention had already been invented by others or 

14:25:11 24 would have been obvious to people in the field. Facebook 

14:25:15 25 contends that some of Voxer's patents are invalid because 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

28

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14:25:18 1 someone else developed the claimed inventions before Voxer did. 

14:25:22 2 And, finally, Facebook contends that, even if infringement of a 

14:25:27 3 valid patent is found, the damages Voxer requests are 

14:25:31 4 unreasonable. 

14:25:32 5 So that, in a nutshell, is the claims of the parties. 

14:25:37 6 This will play itself out in more detail for the eight of you 

14:25:40 7 that are selected to serve on this jury. And later in this 

14:25:46 8 proceeding the lawyers will give their opening statements, 

14:25:48 9 which will be more detailed renditions of their understanding 

14:25:53 10 of the facts and their allegations in this case. 

14:25:56 11 But based on the sort summary that I have just 

14:25:58 12 provided you, I want to ask you a few questions concerning any 

14:26:02 13 knowledge you might have about this case. 

14:26:05 14 Have any of you read anything about this case in the 

14:26:10 15 newspapers, or have you heard anything about it on the radio or 

14:26:13 16 in conversations with others or seen anything on television 

14:26:17 17 about it, or have you learned, heard, read, or seen anything 

14:26:21 18 about it from any source whatsoever, other than in this 

14:26:26 19 courtroom or in connection with your initial qualification or 

14:26:30 20 orientation for jury service by Ms. Demings or any other court 

14:26:35 21 personnel? 

14:26:35 22 If you've heard anything about it other than in that 

14:26:39 23 context, please raise your hand. 

14:26:49 24 You've got to stick your hand way up so I can see 

14:26:51 25 you. 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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14:26:52 1 Yes. Would you please state your name and seat 

14:26:55 2 number.

14:26:55 3 JUROR KALISH: Howard Kalish, Number 21.

14:26:59 4 THE COURT: All right. I do not want you to tell me 

14:27:01 5 at this time what you may have read or heard about this case. 

14:27:04 6 Rather, I want to ask you a few specific questions about the 

14:27:10 7 matter. 

14:27:10 8 First, what is your source of information: newspaper, 

14:27:12 9 radio, television, or conversations with others? 

14:27:15 10 JUROR KALISH: It's an online newspaper magazine.

14:27:19 11 THE COURT: All right. And how many separate 

14:27:22 12 articles did you see or read? 

14:27:23 13 JUROR KALISH: Just one.

14:27:25 14 THE COURT: And when about was that? 

14:27:27 15 JUROR KALISH: Oh, maybe six or eight months ago.

14:27:33 16 THE COURT: All right. Did you read the article all 

14:27:35 17 the way through, or did you just read a paragraph or two and 

14:27:39 18 scan the remainder? 

14:27:40 19 JUROR KALISH: I just scanned it.

14:27:42 20 THE COURT: All right. Do you now remember any 

14:27:44 21 specific fact or circumstances covered in the article which you 

14:27:48 22 may not have -- which you may not have already heard here in 

14:27:52 23 court? But don't specify that fact or circumstance to me, just 

14:27:56 24 do you remember anything specific about it? 

14:27:59 25 JUROR KALISH: Yes.

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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14:27:59 1 THE COURT: All right. In any event, regardless of 

14:28:10 2 what it is that you've heard, have you formed an opinion 

14:28:12 3 concerning any of the issues to be tried in this case? 

14:28:16 4 JUROR KALISH: No.

14:28:18 5 THE COURT: If selected as a juror in this case, 

14:28:24 6 would you be able to disregard what you've heard in its 

14:28:29 7 entirety, put it out of your mind, anything at all you may have 

14:28:34 8 read in that article, and decide the case based solely on the 

14:28:37 9 evidence presented here in the courtroom and during the trial 

14:28:43 10 and follow the law as I give it to you? 

14:28:45 11 JUROR KALISH: Yes.

14:28:46 12 THE COURT: All right. Give me your seat number one 

14:28:48 13 more time.

14:28:48 14 JUROR KALISH: Twenty-one.

14:28:50 15 THE COURT: All right. Thank you. You may be 

14:28:58 16 seated. 

14:28:58 17 Anyone else? 

14:28:59 18 (No response)

14:28:59 19 THE COURT: Now, let me ask you this: Is there 

14:29:17 20 anyone on the jury panel -- this to some extent goes over what 

14:29:22 21 you may have gotten in your jury questionnaire that was sent 

14:29:25 22 out, but it's information that I want to know here. Is there 

14:29:31 23 anyone on this panel that's ever served on a grand jury in the 

14:29:34 24 past.

18:00:00 25 (No response)

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

31

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14:29:36 1 THE COURT: Is there anyone here on the panel who has 

14:29:39 2 ever served on a jury like this, what we call a regular jury or 

14:29:44 3 a petit jury? If so, please raise your hand.

14:29:56 4 JUROR RUDOLPHI: Christine Rudolphi, Seat Number 6.

14:30:02 5 THE COURT: What was your seat number again? 

14:30:04 6 JUROR RUDOLPHI: Six.

14:30:05 7 THE COURT: All right. Was your prior jury service 

14:30:08 8 on a state or federal jury? 

14:30:10 9 JUROR RUDOLPHI: State.

14:30:11 10 THE COURT: And how many times have you served on a 

14:30:13 11 jury? 

14:30:14 12 JUROR RUDOLPHI: Twice.

14:30:17 13 THE COURT: And when did you serve on a jury each 

14:30:20 14 time? Approximately how long ago? 

14:30:23 15 JUROR RUDOLPHI: One in 2015 and one in 2017.

14:30:27 16 THE COURT: All right. Were the cases civil or 

14:30:29 17 criminal or one of each? 

14:30:30 18 JUROR RUDOLPHI: One of each.

14:30:31 19 THE COURT: Were you the foreman of either one of 

14:30:33 20 those jurors? 

14:30:34 21 JUROR RUDOLPHI: No, sir.

14:30:35 22 THE COURT: Without telling me the outcome in each 

14:30:38 23 case, did the jury deliberate and arrive at a verdict? 

14:30:41 24 JUROR RUDOLPHI: It did.

14:30:42 25 THE COURT: Is there anything about that prior jury 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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14:30:45 1 experience that would prevent you from being a fair and 

14:30:48 2 impartial juror if chosen in this case? 

14:30:51 3 JUROR RUDOLPHI: No, sir.

14:30:51 4 THE COURT: Thank you.

14:30:52 5 Who else? 

14:30:58 6 JUROR CHAMPLIN: Jacob Champlin, 17.

14:31:05 7 THE COURT: All right. And was your prior jury 

14:31:07 8 experience in state or federal court? 

14:31:09 9 JUROR CHAMPLIN: State.

14:31:09 10 THE COURT: And how many times have you served on a 

14:31:11 11 jury? 

14:31:12 12 JUROR CHAMPLIN: Once.

14:31:13 13 THE COURT: And how long ago was it? 

14:31:14 14 JUROR CHAMPLIN: Ten years.

14:31:16 15 THE COURT: Was the case civil or criminal? 

14:31:18 16 JUROR CHAMPLIN: Criminal.

14:31:18 17 THE COURT: Were you the foreman of the jury? 

14:31:20 18 JUROR CHAMPLIN: No.

14:31:21 19 THE COURT: And without, again, disclosing the 

14:31:24 20 outcome, did the jury deliberate and arrive at a verdict? 

14:31:27 21 JUROR CHAMPLIN: Yes.

14:31:28 22 THE COURT: Is there anything in that prior jury 

14:31:31 23 experience that would prevent you from being fair and impartial 

14:31:34 24 if you were selected as a member of this jury? 

14:31:36 25 JUROR CHAMPLIN: No.

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

33

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14:31:37 1 THE COURT: Thank you.

14:31:37 2 Anyone else? All right. This next question. 

14:31:47 3 JUROR WELCH: My name Roxann Welch. I'm Number 2.

14:31:55 4 THE COURT: And Ms. Welch, was your prior service in 

14:32:01 5 a federal court or a state court? 

14:32:02 6 JUROR WELCH: I thought it was a county court. Is 

14:32:04 7 that a thing or not? I've been on two juries here in Austin, 

14:32:10 8 and they were both criminal cases.

14:32:12 9 THE COURT: It would have been state, I'm pretty 

14:32:14 10 sure. 

14:32:14 11 JUROR WELCH: Okay.

14:32:14 12 THE COURT: How many times have you served on a jury? 

14:32:17 13 JUROR WELCH: Twice.

14:32:18 14 THE COURT: And how long ago was that? 

14:32:20 15 JUROR WELCH: About 7 years and 14 years.

14:32:22 16 THE COURT: And were the cases civil, criminal, or 

14:32:24 17 one of each? 

14:32:25 18 JUROR WELCH: Criminal.

14:32:27 19 THE COURT: All right. Were you the foreman of 

14:32:29 20 either jury? 

14:32:30 21 JUROR WELCH: No.

14:32:30 22 THE COURT: Without telling me the outcome, did the 

14:32:33 23 jury deliberate and arrive at a verdict? 

14:32:36 24 JUROR WELCH: Yes.

14:32:36 25 THE COURT: In each case? 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

34

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14:32:37 1 JUROR WELCH: Yes.

14:32:37 2 THE COURT: And is there anything in any of that 

14:32:39 3 prior jury experience that would prevent you from being a fair 

14:32:42 4 and impartial juror if chosen in this case? 

14:32:44 5 JUROR WELCH: No.

14:32:45 6 THE COURT: Thank you. Anybody else? Please stick 

14:32:49 7 your hand way up so I can see you from here.

14:32:51 8 (No response)

14:32:52 9 THE COURT: As will become more obvious to the eight 

14:32:56 10 of you that serve on this jury, I'm really old, so you've got 

14:32:59 11 to bear that in mind.

14:33:00 12 All right. This next question is directed to those 

14:33:03 13 of you that might have served in the military.

14:33:05 14 Is there anyone on the panel who has ever served on 

14:33:09 15 general or special court-martial? Please raise your hand.

18:00:00 16 (No response)

14:33:15 17 THE COURT: Have you or any family member or close 

14:33:18 18 friend, other than in a divorce proceeding, ever participated 

14:33:22 19 in a lawsuit or other legal action as a party, witness, or any 

14:33:29 20 other capacity? If so, please raise your hand.

14:33:33 21 JUROR MOORE-CATION: Monica Moore-Cation, Seat 1. 

14:33:39 22 And it was an eviction case.

14:33:41 23 THE COURT: All right. And in what capacity were you 

14:33:45 24 involved: a witness? a party? 

14:33:46 25 JUROR MOORE-CATION: I was the residence owner.

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

35

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14:33:49 1 THE COURT: All right. Is there anything in that 

14:33:51 2 prior experience that would prevent you from being a fair and 

14:33:54 3 impartial juror if selected in this case.

14:33:56 4 JUROR MOORE-CATION: No.

14:33:58 5 THE COURT: Thank you. I think we have one more down 

14:34:00 6 the row here.

14:34:13 7 JUROR SMITH: Aaron Smith, Number 19. 

14:34:14 8 I was a defendant in an employment lawsuit.

14:34:17 9 THE COURT: Pardon me. I didn't hear the last part.

14:34:19 10 JUROR SMITH: I was a defendant in an employment 

14:34:21 11 lawsuit.

14:34:22 12 THE COURT: All right. Is there anything in that 

14:34:24 13 prior jury experience that would prevent you from being a fair 

14:34:27 14 and impartial juror if selected in this case? 

14:34:32 15 JUROR SMITH: No.

14:34:32 16 THE COURT: Thank you. Anyone else? 

14:34:34 17 (No response)

14:34:34 18 THE COURT: Seeing none, have any of you, or a close 

14:34:40 19 family member known to you, filed a lawsuit or -- well, had a 

14:34:47 20 desire to file a lawsuit or other legal action but were 

14:34:51 21 prevented from doing so for some reason?

18:00:00 22 (No response)

14:34:56 23 THE COURT: Have any of you attended law school or 

14:35:03 24 had any special training in the law or worked in a law library, 

14:35:08 25 a law school, a lawyer's office, or other business related to 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

36

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14:35:12 1 the law? 

14:35:13 2 If so, please raise your hand.

14:35:14 3 JUROR MOORE-CATION: I have worked in multiple law 

14:35:24 4 offices.

14:35:25 5 THE COURT: You've got to state your name and seat 

14:35:27 6 number.

14:35:28 7 JUROR MOORE-CATION: Sorry. Monica Moore-Cation, 

14:35:30 8 Seat 1. 

14:35:30 9 And I have worked in multiple law offices.

14:35:32 10 THE COURT: All right. For a law firm? 

14:35:33 11 JUROR MOORE-CATION: Yes.

14:35:34 12 THE COURT: All right. And would that experience 

14:35:35 13 prevent you from following the court's instructions in this 

14:35:39 14 case, even though you might disagree with my instructions.

14:35:43 15 JUROR MOORE-CATION: No.

14:35:45 16 THE COURT: All right. And would that experience 

14:35:46 17 prevent you from being a fair and impartial juror in this case? 

14:35:49 18 JUROR MOORE-CATION: No.

14:35:50 19 THE COURT: And would that experience prevent you 

14:35:52 20 from rendering a verdict based solely on the evidence presented 

14:35:55 21 in the courtroom and the instructions that I give you as a 

14:35:59 22 juror?

14:36:00 23 JUROR MOORE-CATION: No.

14:36:01 24 THE COURT: Thank you.

14:36:02 25 JUROR KALISH: Howard Kalish, 21. 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

37

Case 1:20-cv-00655-DAE Document 338 Filed 10/12/22 Page 37 of 116
14:36:11 1 I'm retired now, but I worked for a technology 

14:36:14 2 company here in Austin for many years, and I worked with the 

14:36:17 3 lawyers there on patent and trademark infringement in my role 

14:36:21 4 there. And I have fairly good ongoing training on patent and 

14:36:28 5 trademark infringement.

14:36:32 6 THE COURT: Is there anything in that experience that 

14:36:34 7 would prevent you -- this is the $64 question -- from following 

14:36:38 8 my instructions in this case even if you disagree with those 

14:36:42 9 instructions? 

14:36:43 10 JUROR KALISH: No.

14:36:44 11 THE COURT: Would that experience prevent you in any 

14:36:46 12 way from being a fair and impartial juror in this case? 

14:36:49 13 JUROR KALISH: No.

14:36:50 14 THE COURT: And would that experience prevent you 

14:36:52 15 from rendering a verdict based solely on the evidence presented 

14:36:55 16 here in the courtroom and the instructions that I give to the 

14:36:59 17 jury? 

14:36:59 18 JUROR KALISH: I think that's a yes answer. I'm not 

14:37:05 19 sure. I can do it.

14:37:06 20 THE COURT: All right. In other words, you could put 

14:37:07 21 your experiences out of your mind and render a verdict based 

14:37:10 22 solely on what you hear in the courtroom and the instructions 

14:37:13 23 that I give you; is that correct? 

14:37:14 24 JUROR KALISH: Yes.

14:37:15 25 THE COURT: All right. Thank you.

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

38

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14:37:16 1 Anyone else? Any law-related employment or 

14:37:20 2 background?

14:37:25 3 (No response) 

14:37:25 4 THE COURT: Now, members of the panel who have served 

14:37:26 5 on juries before are already aware that, once selected as a 

14:37:31 6 juror, you become the judge of facts in the case, the judge of 

14:37:34 7 the credibility of the witnesses, and the judge of the weight 

14:37:38 8 to be given the testimony of the witnesses. 

14:37:41 9 It is your prerogative as a juror to believe all of 

14:37:44 10 the testimony of a witness, only part of the testimony of a 

14:37:47 11 witness, or you may totally disbelieve the testimony of a 

14:37:51 12 witness. This is completely up to you. As jurors, you are the 

14:37:57 13 exclusive judges of the facts, the credibility of the 

14:38:00 14 witnesses, and the weight to be given their testimony. 

14:38:06 15 Whereas the jury is the exclusive judge of the facts, 

14:38:09 16 the court, which is represented by me, is the sole judge of the 

14:38:15 17 law applicable in the case. At the conclusion of all the 

14:38:19 18 testimony and after the lawyers for both sides have presented 

14:38:22 19 their summary of the case to you and their closing arguments, I 

14:38:26 20 will explain the law controlling the issues involved in this 

14:38:30 21 case. You are to be governed by my explanation of the 

14:38:34 22 applicable law, which will be set out in what is termed the 

14:38:38 23 "Court's Instructions and Charge." 

14:38:41 24 If you are selected to sit as a juror on this case, 

14:38:45 25 will you be able to -- able and willing to render a verdict 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

39

Case 1:20-cv-00655-DAE Document 338 Filed 10/12/22 Page 39 of 116
14:38:49 1 based solely on the evidence presented at the trial and the law 

14:38:52 2 as I give it to you in my instructions, disregarding any other 

14:38:57 3 ideas, notions, or beliefs about the law that you may have 

14:39:01 4 encountered in reaching your verdict? 

14:39:03 5 If you would be unable or unwilling to render a 

14:39:07 6 verdict based solely on the evidence presented at trial and the 

14:39:11 7 law as I give it to you in my instructions, please raise your 

14:39:14 8 hand at this time.

18:00:00 9 (No response)

14:39:16 10 THE COURT: This is a civil case. Therefore, the 

14:39:22 11 plaintiffs have the burden of proving their claims by what is 

14:39:25 12 called a preponderance of the evidence. Those of you who have 

14:39:29 13 served on criminal juries are familiar with the requirement of 

14:39:33 14 proof beyond a reasonable doubt. Please bear in mind that, in 

14:39:38 15 civil cases, the proof standard is not beyond a reasonable 

14:39:40 16 doubt, as in criminal cases; but, rather, the plaintiffs must 

14:39:45 17 prove each claim by a preponderance of the evidence. 

14:39:51 18 This means that the plaintiff must produce evidence 

14:39:54 19 which, when considered in the light of all of the facts, leads 

14:39:57 20 you to believe that the plaintiff's claims are more likely true 

14:40:00 21 than not. In other words, the plaintiff must prove each of its 

14:40:08 22 claims by evidence that shows merely by the greater weight of 

14:40:14 23 the credible evidence. It's a balancing test. It's above 50 

14:40:20 24 percent. 

14:40:20 25 Is there anyone among you who would require Voxer to 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

40

Case 1:20-cv-00655-DAE Document 338 Filed 10/12/22 Page 40 of 116
14:40:24 1 prove each claim by a preponderance -- would be unable -- let 

14:40:28 2 me just start over. 

14:40:30 3 Is there anyone among you who would be unable to 

14:40:33 4 require Voxer to prove each claim by a preponderance of the 

14:40:36 5 evidence as I have explained that term to you? 

18:00:00 6 (No response)

14:40:40 7 THE COURT: Is there anyone among you who would hold 

14:40:44 8 Voxer to a greater or lesser standard of proof? 

18:00:00 9 (No response)

14:40:51 10 THE COURT: You will be called upon in this case to 

14:40:53 11 decide liability, and you may be called upon to award money 

14:40:56 12 damages if you find they are appropriate. 

14:40:59 13 Do any of you have any religious, philosophical, or 

14:41:04 14 other belief that prevents you from acting as an impartial 

14:41:08 15 juror in this case? 

18:00:00 16 (No response)

14:41:10 17 THE COURT: Do any of you have any strong feelings 

14:41:12 18 either way about whether or not to award monetary damages that 

14:41:18 19 would cause you not to be able to follow the law in that regard 

14:41:22 20 as I give it to you? 

18:00:00 21 (No response)

14:41:27 22 THE COURT: Now, do any of you have a Voxer, 

14:41:34 23 Facebook, or Instagram account? 

14:41:39 24 Almost everyone.

14:41:40 25 Do any of you have strong feelings, positive or 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

41

Case 1:20-cv-00655-DAE Document 338 Filed 10/12/22 Page 41 of 116
14:41:48 1 negative, toward Voxer, Facebook, or Instagram, based on your 

14:41:52 2 own experience or experience of someone close to you? 

14:42:01 3 All right. I'm going to let the lawyers follow up 

14:42:03 4 with questions, so note which jurors have indicated so.

14:42:09 5 THE COURT: Have you or any member of your immediate 

14:42:12 6 family, or your employer, current or previous, ever been 

14:42:15 7 employed or had any dealings with the United States Patent and 

14:42:18 8 Trademark Office? Please raise your hand.

14:42:21 9 (No response) 

14:42:27 10 THE COURT: Have you or any member of your immediate 

14:42:29 11 family ever invented a new product or process or applied for a 

14:42:35 12 United States or foreign patent? 

14:42:41 13 (Several jurors raise their hands)

14:42:45 14 THE COURT: Have any of you had an experience in 

14:42:47 15 which you felt someone used an idea you had without your 

14:42:52 16 permission or you were accused of using an idea without 

14:42:57 17 permission? 

18:00:00 18 (No response)

14:43:01 19 THE COURT: Have any of you ever been involved in or 

14:43:05 20 worked for a company that was involved in a licensing a patent? 

14:43:12 21 (Several jurors raise their hands)

14:43:12 22 THE COURT: Now, this case involves a patent dispute, 

14:43:16 23 including issues of patent infringement and patent validity.

14:43:20 24 Have you, any of you, or any member of your family or 

14:43:23 25 close friends known to you been involved in a patent dispute, 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

42

Case 1:20-cv-00655-DAE Document 338 Filed 10/12/22 Page 42 of 116
14:43:27 1 either as an individual or as part of a company? 

18:00:00 2 (No response)

14:43:33 3 THE COURT: Do any of you have any opinions about 

14:43:35 4 patents, patent rights, or the United States Patent and 

14:43:40 5 Trademark Office that may make it difficult for you to be a 

14:43:43 6 fair and impartial juror in this case? 

14:43:46 7 (No response)

14:43:50 8 THE COURT: Do any of you work in the high-tech 

14:43:53 9 industry? 

14:43:57 10 (Several jurors raise their hands)

14:43:57 11 THE COURT: After all, you live in Austin. 

14:44:01 12 Do any of you have any opinions about patents, patent 

14:44:05 13 rights, or the United States Patent, and Trademark Office that 

14:44:08 14 might make it difficult for you to be a fair and impartial 

14:44:10 15 juror in this case? 

14:44:12 16 (No response)

14:44:12 17 THE COURT: Do any of you have any particular 

14:44:19 18 expertise in audio, video, or text messages or social media, 

14:44:25 19 more than just being good at it? 

18:00:00 20 (No response)

14:44:29 21 THE COURT: Now, if you're selected as a juror in 

14:44:32 22 this case, you cannot discuss the case with your fellow jurors 

14:44:36 23 before you are permitted to do so at the conclusion of trial, 

14:44:40 24 or with anyone else until after a decision has been reached by 

14:44:44 25 the jury. Therefore, you cannot talk about the case or 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

43

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14:44:48 1 otherwise have any communications about the case with anyone, 

14:44:52 2 including your fellow jurors, until I tell you that such 

14:44:56 3 discussions may take place. 

14:44:59 4 Thus, in addition to not having face-to-face 

14:45:02 5 discussions with your fellow jurors or anyone else, you cannot 

14:45:06 6 communicate with anyone about the case in any way, whether in 

14:45:10 7 writing or through e-mail, text messaging, blogs, or comments, 

14:45:15 8 or on social media, websites and apps like Twitter, Facebook, 

14:45:20 9 Instagram, LinkedIn, Youtube, WhatsApp, GroupMe, Snapchat, and 

14:45:28 10 TikTok. If you feel you cannot do this, then you cannot let 

14:45:31 11 yourself become a member of the jury in this case. 

14:45:34 12 Is there anyone who will not be able to comply with 

14:45:37 13 this restriction? And by that I mean turning off your smart 

14:45:41 14 phones and your means of electronic communication, knowing only 

14:45:45 15 about this case from what you hear in the courtroom and the law 

14:45:50 16 as I give it to you? Will everybody, if you're selected to the 

14:45:54 17 jury, be willing and able to do that? 

14:45:56 18 If you cannot do that, raise your hand for me.

18:00:00 19 (No response)

14:46:00 20 THE COURT: You also cannot conduct any type of 

14:46:03 21 independent or personal research or investigation regarding any 

14:46:08 22 matters related to this case. Therefore, you cannot use your 

14:46:12 23 cell phones, iPads, computers, or any other device to do any 

14:46:16 24 research or investigation regarding this case, the matters in 

14:46:20 25 this case, the legal issues in this case, or the individuals or 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

44

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14:46:24 1 entities in this case. And you must ignore any information 

14:46:28 2 about this case that you may see, even accidentally, while 

14:46:34 3 browsing on the Internet or on your social media feeds.

14:46:37 4 This is because you must -- pardon me. 

14:46:41 5 This is because you must base the decision that you 

14:46:44 6 will have to make in this case solely on what you hear and see 

14:46:47 7 in this courtroom. If you feel that you cannot do this, then 

14:46:52 8 you cannot let yourself become a member of the jury in this 

14:46:55 9 case.

14:46:56 10 Is there anyone who would not be able to comply with 

14:46:59 11 this restriction?

14:47:03 12 (No response) 

14:47:03 13 Now, I have allocated the lawyers for each side an 

14:47:07 14 opportunity to ask you questions. They will do their best to 

14:47:15 15 stay within my time confines, but if you hear me say "thank 

14:47:20 16 you" to one of them, it doesn't mean they've done anything 

14:47:23 17 wrong. It's just their signal that they're going to have to 

14:47:28 18 sit down because they've exhausted the time I've given them.

14:47:31 19 So at this time the attorney for each party will have 

14:47:35 20 an opportunity to ask you questions. Please remember, as I 

14:47:41 21 stated earlier, that the nature of some of the attorneys' 

14:47:45 22 questions may seem intrusive, but I assure you that the lawyers 

14:47:49 23 have no desire to pry into your backgrounds unnecessarily, but, 

14:47:53 24 rather, are doing so to ensure that each of you can act 

14:47:57 25 independently and without bias in serving as a juror in this 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

45

Case 1:20-cv-00655-DAE Document 338 Filed 10/12/22 Page 45 of 116
14:48:00 1 case. Further, the lawyers are given certain peremptory 

14:48:04 2 strikes which they can exercise, and their questions will give 

14:48:07 3 them information on which to base those strikes.

14:48:10 4 So please remember that if at any time you do not 

14:48:14 5 want to publicly answer a question, you may approach the bench 

14:48:18 6 and ask the question with only the court and the lawyers 

14:48:22 7 present.

14:48:22 8 So at this time the plaintiff may ask questions of 

14:48:28 9 the jury panel.

14:48:30 10 MR. THOMPSON: Thank you, Your Honor. May I get a 

14:48:32 11 five-minute warning before my time? 

14:48:34 12 THE COURT: You may.

14:48:35 13 MR. THOMPSON: Thank you. May it please the Court: 

14:48:38 14 Good afternoon, ladies and gentlemen. Again, my name 

14:48:41 15 is a Blake Thompson, and I'm one of the lawyers that has the 

14:48:44 16 honor of representing Voxer and Mr. Tom Katis. I appreciate 

14:48:49 17 you being here. I know there's probably places you'd rather be 

14:48:52 18 or things you'd rather be doing, so we appreciate your time and 

14:48:56 19 attention. 

14:48:57 20 I know you've all filled out juror questionnaires and 

14:49:00 21 been answering questions today, so it's probably only fair that 

14:49:03 22 I give you a little bit of information about myself. I'm from 

14:49:06 23 Texas, if you can't tell from my accent. I grew up in a small 

14:49:09 24 town of Overton, Texas. I live in Tyler now. I'm married. I 

14:49:14 25 have one son who is almost 8 years old, but he thinks he's 

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14:49:17 1 almost 18 years old. I went to school right down the road in 

14:49:21 2 Waco. So any of you that are diehard Longhorns, I hope you 

14:49:26 3 won't hold that against me.

14:49:27 4 I have a few questions for you, and it's my opinion 

14:49:30 5 that all of us have opinions and feelings and biases that we've 

14:49:34 6 just garnered from our personal life experiences. And so the 

14:49:39 7 point of these questions really are just to determine if you 

14:49:41 8 have any of those particular opinions or biases or feelings 

14:49:46 9 that might make it difficult for you to decide this case based 

14:49:50 10 solely on the evidence that's going to be provided. There's no 

14:49:54 11 right or wrong answers. I just need to get to know you a 

14:49:58 12 little bit so we can make our decision. Okay? 

14:50:00 13 First question I have for the panel is: Have you or 

14:50:02 14 a close family member or close friend ever worked for an 

14:50:06 15 insurance company? If you have, please raise your hand.

14:50:09 16 (No response)

14:50:09 17 MR. THOMPSON: Okay. A little different twist on 

14:50:12 18 that: Have you or a family member or close friend ever worked 

14:50:16 19 in what's sometimes referred to as risk management or claims 

14:50:20 20 for a company? Anyone? 

14:50:21 21 (No response)

14:50:23 22 MR. THOMPSON: Okay. I see no hands. 

14:50:25 23 Now, I know you were asked in your questionnaire your 

14:50:28 24 feelings about lawsuits, and Judge Yeakel has asked you a 

14:50:32 25 little bit about that, too. But I have a few more questions 

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14:50:36 1 about that. Who here thinks just as a whole there are too many 

14:50:38 2 lawsuits in our country? If you believe that, please raise 

14:50:41 3 your hand. And keep them up for just a second so I can kind of 

14:50:45 4 mark who you are, okay? 

14:50:50 5 Okay. Now, for those of you that raised your hand, I 

14:51:01 6 know we live in a world where we're watching TV, there's 

14:51:05 7 lawyers advertising; we're on the Internet, there's lawyers 

14:51:08 8 advertising; we're driving down the freeway, there's lawyers on 

14:51:10 9 the billboard. Lawyers everywhere, okay? 

14:51:13 10 Who, when you're saying there's too many lawsuits in 

14:51:16 11 this country, really you're thinking about personal injury type 

14:51:19 12 lawsuits? Raise hand if that's really what you're referring 

14:51:23 13 to? Okay. Keep them up for me if you don't mind just so I can 

14:51:27 14 see. 

14:51:31 15 All right. Now, there's no such thing as "patent 

14:51:36 16 police." So my client, the only option we have to redress 

14:51:40 17 their wrong is to come here to the courthouse. So is there 

14:51:45 18 anybody here that thinks there's just too many patent lawsuits, 

14:51:47 19 lawsuits over a patent? 

14:51:49 20 Okay. Mr. Champlin; is that correct? 

14:51:54 21 MR. THOMPSON: Okay. I have a question for you. Can 

14:52:02 22 you tell me little bit more about that, why you have that 

14:52:05 23 feeling? 

14:52:06 24 JUROR CHAMPLIN: I've looked at lots of software 

14:52:09 25 patent because I'm a software developer, or was. And I feel 

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14:52:15 1 like it's maybe less a problem with the legal system but more a 

14:52:18 2 problem with the Patent Office. I don't think they really 

14:52:21 3 understand what is novel and not in the software industry.

14:52:28 4 MR. THOMPSON: Okay. And I think you also mentioned 

14:52:30 5 that you had an issue with the Patent and Trademark Office. Is 

14:52:32 6 that what you're talking about? 

14:52:34 7 JUROR CHAMPLIN: Yes. I've had personal issue with 

14:52:37 8 the Patent and Trademark Office, yes.

14:52:41 9 MR. THOMPSON: You kind of have an issue with the way 

14:52:44 10 the system works. Is that fair? 

14:52:45 11 JUROR CHAMPLIN: Yes.

14:52:46 12 MR. THOMPSON: Would those issues and your beliefs 

14:52:48 13 prevent you from being able to be a fair and impartial juror on 

14:52:51 14 this case? 

14:52:52 15 JUROR CHAMPLIN: No.

14:52:53 16 MR. THOMPSON: Okay. All right. Thank you, 

14:52:55 17 Mr. Champlin. 

14:53:04 18 Mrs. Albright. I think she's on the front row here. 

14:53:09 19 Ms. Albright, from your response to questionnaire, I 

14:53:12 20 couldn't really determine if you were familiar with Voxer or 

14:53:15 21 not. Are you familiar with Voxer? 

14:53:17 22 JUROR ALBRIGHT: No.

14:53:18 23 MR. THOMPSON: Okay. So I think that, if I read this 

14:53:19 24 right, you put a one as unfavorable for Voxer in your response. 

14:53:24 25 Was that just unintentional or you just had no idea who Voxer 

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14:53:28 1 is?

14:53:29 2 JUROR ALBRIGHT: That was unintentional.

14:53:31 3 MR. THOMPSON: Okay. Thank you. I appreciate that. 

14:53:33 4 You can sit down.

14:53:33 5 Ms. Beebe. Did I pronounce your name right? 

14:53:43 6 JUROR BEEBE: Yes.

14:53:44 7 MR. THOMPSON: Okay. Sorry. Ms. Beebe, I think in 

14:53:47 8 some of your responses you describe yourself as very tech 

14:53:50 9 savvy; is that right? 

14:53:51 10 JUROR BEEBE: Yes.

14:53:52 11 MR. THOMPSON: Okay. Can you -- it's not a trick 

14:53:54 12 question. Can you -- can you kind of tell me why you consider 

14:53:57 13 yourself pretty tech savvy.

14:54:00 14 JUROR BEEBE: I use technology a lot, but it's not 

14:54:02 15 for work. Well, it is in a teaching standpoint. I'm a 

14:54:06 16 teacher. So in that light I use technology a lot, and then 

14:54:12 17 also in social media.

14:54:13 18 MR. THOMPSON: What do you teach? 

14:54:13 19 JUROR BEEBE: I teach art and work at a private 

14:54:15 20 school.

14:54:16 21 MR. THOMPSON: Okay. Thank you very much. I 

14:54:18 22 appreciate it. 

14:54:20 23 Mr. Chang. I should have said it quicker, and you 

14:54:25 24 could have gotten the microphone quicker. 

14:54:27 25 Mr. Chang, I believe that in your responses to the 

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14:54:30 1 questionnaire, that you indicated that you've used the Voxer 

14:54:32 2 app; is that right? 

14:54:34 3 JUROR CHANG: Correct.

14:54:35 4 MR. THOMPSON: Can you tell me a little bit about 

14:54:36 5 that? Do you currently use it? 

14:54:38 6 JUROR CHANG: I don't currently use it. This was 

14:54:40 7 probably sometime last year. It was at my gym. It was a way 

14:54:44 8 for the coaches to stay in communication with participants 

14:54:50 9 during training sessions, and it was only for maybe a 

14:54:54 10 three-month period, and I believe the app after that was over.

14:55:01 11 MR. THOMPSON: How would you describe your experience 

14:55:03 12 with that? Did you like it? Did you not like it? What? 

14:55:05 13 JUROR CHANG: Neutral. I mean, it's -- yeah. 

14:55:09 14 Neutral.

14:55:09 15 MR. THOMPSON: Okay. I noticed I think in your 

14:55:10 16 background that you have a lot of experience in design; is that 

14:55:13 17 right? Maybe games and such? 

14:55:14 18 JUROR CHANG: Correct.

14:55:15 19 MR. THOMPSON: All right. With your level of 

14:55:19 20 expertise and your background in technology, would you have any 

14:55:21 21 problem -- because I'll tell you in this case there's going to 

14:55:23 22 be experts on both sides talking about both sides' positions. 

14:55:27 23 Would you have any problem listening to those experts and not 

14:55:31 24 just looking at your own personal background when making a 

14:55:35 25 decision as a juror?

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14:55:36 1 JUROR CHANG: Yeah. I don't think I would have a 

14:55:40 2 problem, no.

14:55:41 3 MR. THOMPSON: Okay. And my point is, basically, 

14:55:44 4 that you don't feel like, with your level of expertise, that 

14:55:46 5 you might ignore or not pay attention that closely to the 

14:55:50 6 experts and rely more on your personal experience.

14:55:53 7 JUROR CHANG: This domain is not my area of focus, so 

14:55:57 8 I wouldn't have a problem.

14:55:59 9 MR. THOMPSON: Okay. Fair enough. Thank you so 

14:56:02 10 much. 

14:56:03 11 Ms. Estes. Ms. Estes, I think your response to some 

14:56:14 12 of the questionnaire questions, you indicated you don't use 

14:56:16 13 Facebook or Instagram; is that correct? 

14:56:19 14 JUROR ESTES: That is correct.

14:56:21 15 MR. THOMPSON: Now, I think your job is at H-E-B in 

14:56:26 16 marketing and so forth; is that correct? 

14:56:26 17 JUROR ESTES: Okay.

14:56:26 18 MR. THOMPSON: Do you not use any social media as 

14:56:28 19 part of your job or anything of that nature? 

14:56:30 20 JUROR ESTES: I mean, obviously, H-E-B uses social 

14:56:33 21 media and I have a team in San Antonio that uses social media 

14:56:38 22 from an advertising perspective. But for me, personally, I'm 

14:56:41 23 not directly involved in that.

14:56:43 24 MR. THOMPSON: Do you oversee that team that is doing 

14:56:46 25 that work? 

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14:56:46 1 JUROR ESTES: I do not. 

14:56:48 2 MR. THOMPSON: Thank you. I appreciate it.

14:56:50 3 Mr. Ilango? Did I pronounce your name correctly.

14:56:53 4 JUROR ILANGO: Yes.

14:56:54 5 THE COURT: Okay. Thank you. You indicated that you 

14:56:56 6 have a background in developing products; is that right? 

14:57:00 7 JUROR ILANGO: Yes.

14:57:00 8 MR. THOMPSON: Can you tell us little more about 

14:57:03 9 that? 

14:57:03 10 JUROR ILANGO: I'm involved in system design and 

14:57:05 11 design of semiconductor chips.

14:57:09 12 MR. THOMPSON: Have you ever had any of your 

14:57:11 13 inventions patented? 

14:57:12 14 JUROR ILANGO: Yes.

14:57:13 15 MR. THOMPSON: How many? 

14:57:14 16 JUROR ILANGO: Maybe a dozen.

14:57:16 17 MR. THOMPSON: Okay. You also indicated, I think, 

14:57:18 18 that maybe you were in a small claims -- had a small claims 

14:57:23 19 court case; is that right? 

14:57:24 20 JUROR ILANGO: Yes.

14:57:25 21 MR. THOMPSON: For an automobile; is that right? 

14:57:27 22 JUROR ILANGO: Yes. 

14:57:28 23 MR. THOMPSON: Were you the claimant or defendant or 

14:57:30 24 what? 

14:57:31 25 JUROR ILANGO: I was the defendant.

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14:57:33 1 MR. THOMPSON: Okay. Thank you very much, 

14:57:35 2 Mr. Ilango. 

14:57:37 3 Ms. Lancaster. Hi. I believe on your questionnaire 

14:57:42 4 you indicated that either you or maybe your significant other 

14:57:46 5 had some military experience; is that right?

14:57:50 6 JUROR LANCASTER: I served in the Army, yes.

14:57:51 7 MR. THOMPSON: You served in the Army. How long were 

14:57:55 8 you in the Army?

14:57:55 9 JUROR LANCASTER: Three years.

14:57:56 10 MR. THOMPSON: How long ago was that? 

14:57:58 11 JUROR LANCASTER: Over 20 years ago.

14:58:00 12 MR. THOMPSON: That was a bad question of me to ask 

14:58:02 13 you. I'm sorry. Thank you very much. I appreciate you.

14:58:04 14 Mrs. Moore-Cation. We'll let the microphone get to 

14:58:15 15 you. I think -- and, now, people were raising their hand 

14:58:18 16 pretty quickly and putting them down, so I want to make sure I 

14:58:21 17 have this right. Did you indicate that you have a patent or 

14:58:24 18 that you had applied for a patent? 

14:58:25 19 JUROR MOORE-CATION: Well, I worked for a company in 

14:58:27 20 the Bay Area. They were a material science company. And I was 

14:58:32 21 the product manager for a new polymer-based overcurrent 

14:58:37 22 protection device, and we did file for a patent for that 

14:58:40 23 product.

14:58:40 24 MR. THOMPSON: Okay. And you were just involved in 

14:58:42 25 that process, I guess?

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14:58:43 1 JUROR MOORE-CATION: I was involved in the process, 

14:58:44 2 yes.

14:58:45 3 MR. THOMPSON: Okay. Now, you also indicated, I 

14:58:48 4 think, there's a number of lawyers in your family; is that 

14:58:51 5 right? 

14:58:51 6 JUROR MOORE-CATION: There are.

14:58:52 7 MR. THOMPSON: So your dad is a judge; is that right? 

14:58:54 8 JUROR MOORE-CATION: Was a state judge.

14:58:56 9 MR. THOMPSON: Okay. And where was that? 

14:58:57 10 JUROR MOORE-CATION: 120th District Court in El Paso.

14:59:00 11 MR. THOMPSON: Okay. And what kind of law did he 

14:59:03 12 practice before he went on the bench? 

14:59:03 13 JUROR MOORE-CATION: Criminal.

14:59:04 14 MR. THOMPSON: And who else? I think you had a few 

14:59:06 15 other family members who are lawyers. Can you tell me about 

14:59:09 16 those.

14:59:09 17 JUROR MOORE-CATION: Yes. A couple of uncles, also 

14:59:11 18 criminal law.

14:59:12 19 MR. THOMPSON: Okay.

14:59:13 20 JUROR MOORE-CATION: A nephew who has currently just 

14:59:16 21 graduated, in fact, so I'm not sure what direction he's going. 

14:59:19 22 But he's also an attorney.

14:59:20 23 MR. THOMPSON: Where did he graduate from? 

14:59:22 24 JUROR MOORE-CATION: NYU.

14:59:24 25 MR. THOMPSON: NYU. Okay. I think you indicated 

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14:59:27 1 you've worked at a number of law offices; is that right? 

14:59:29 2 JUROR MOORE-CATION: I have, during high school and 

14:59:30 3 college. And while I was at UT, I worked for some mostly 

14:59:34 4 research assistant positions.

14:59:36 5 MR. THOMPSON: Were those law firms mostly criminal 

14:59:39 6 law firms or civil or a mix? 

14:59:40 7 JUROR MOORE-CATION: It was a mix, but primarily 

14:59:43 8 criminal.

14:59:43 9 MR. THOMPSON: Okay. All right. Did you ever work 

14:59:46 10 for any law firms that did civil litigation, either on the 

14:59:50 11 plaintiff's side or the defense' side? 

14:59:52 12 JUROR MOORE-CATION: Yes. But it was a long time 

14:59:55 13 ago.

14:59:56 14 MR. THOMPSON: Okay. You don't recall who those 

14:59:58 15 were? 

14:59:58 16 JUROR MOORE-CATION: I don't.

14:59:59 17 MR. THOMPSON: Okay. Thank you. I think you also 

15:00:01 18 indicated that your husband had developed or started several 

15:00:04 19 technology businesses; is that right? 

15:00:06 20 JUROR MOORE-CATION: That is correct.

15:00:07 21 MR. THOMPSON: Can you tell us about those? 

15:00:09 22 JUROR MOORE-CATION: Yes. They are -- he is a 

15:00:11 23 software designer and has been the founder of three software 

15:00:16 24 startup companies. He currently runs two of those, and I am 

15:00:21 25 contributor, not a paid employee.

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15:00:25 1 MR. THOMPSON: Okay. All right. Thank you very 

15:00:28 2 much. I appreciate it.

15:00:29 3 Ms. Nelson. Well, Ms. Nelson, I really don't have 

15:00:40 4 any questions for you. I guess I was blank. I was just moving 

15:00:43 5 along. Does that make your day? 

15:00:45 6 JUROR NELSON: It does.

15:00:46 7 MR. THOMPSON: Okay. Thank you. I do have some 

15:00:48 8 questions for Mr. Ridley. I believe in your questionnaire that 

15:01:00 9 you listed that your brother is an attorney; is that right? 

15:01:03 10 JUROR RIDLEY: Correct.

15:01:04 11 MR. THOMPSON: And where does he practice? 

15:01:05 12 JUROR RIDLEY: In Georgia.

15:01:07 13 MR. THOMPSON: Do you know what kind of law he 

15:01:09 14 practices? 

15:01:10 15 JUROR RIDLEY: General practice.

15:01:11 16 MR. THOMPSON: Okay. All right. I think you also 

15:01:12 17 have started your own business. You are a financial planner; 

15:01:15 18 is that right? 

15:01:15 19 JUROR RIDLEY: Correct.

15:01:16 20 MR. THOMPSON: Can you tell us a little bit more 

15:01:18 21 about starting your own business? How you did it, when you did 

15:01:22 22 it, that sort of thing? 

15:01:23 23 JUROR RIDLEY: Sure. Yeah. Just filed with the 

15:01:26 24 State, the LLC, and had to process the -- become a registered 

15:01:31 25 investment advisor with the State as well. Through my 

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15:01:35 1 experience with financial planning, investments, kind of saw a 

15:01:39 2 need for a specific service within the church world. And so I 

15:01:45 3 started my own firm six months ago.

15:01:48 4 MR. THOMPSON: And when you say church work, do you 

15:01:50 5 cater to some certain area or demographic? 

15:01:53 6 JUROR RIDLEY: To churches, specifically.

15:01:55 7 MR. THOMPSON: Thank you very much. I appreciate 

15:01:57 8 you. 

15:01:57 9 Ms. Rudolphi. I know you indicated you were a juror 

15:02:07 10 on a couple of cases; is that right? 

15:02:08 11 JUROR RUDOLPHI: Yes.

15:02:09 12 MR. THOMPSON: But I think I noticed in your 

15:02:11 13 information that you're also a member of a class action; is 

15:02:13 14 that right? 

15:02:13 15 JUROR RUDOLPHI: Yes. Uh-huh.

15:02:15 16 MR. THOMPSON: Can you tell me a little bit about 

15:02:16 17 that? 

15:02:16 18 JUROR RUDOLPHI: Yes. I worked for Toys"R"Us for 26 

15:02:20 19 years, and we were released, of course, when they went bankrupt 

15:02:24 20 without severance. So there was class action lawsuit filed for 

15:02:27 21 severance pay, and I was a part of that.

15:02:28 22 MR. THOMPSON: Okay. Have you been involved in any 

15:02:29 23 other lawsuits? 

15:02:30 24 JUROR RUDOLPHI: I don't think so, no.

15:02:32 25 MR. THOMPSON: All right. Thank you.

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15:02:34 1 JUROR RUDOLPHI: You're welcome.

15:02:36 2 MR. THOMPSON: And Mr. Rylie, good afternoon.

15:02:42 3 JUROR RYLIE: Good afternoon.

15:02:44 4 MR. THOMPSON: I understand you worked for NXP or you 

15:02:47 5 retired from NXP; is that right? 

15:02:50 6 JUROR RYLIE: Thirty-two years.

15:02:52 7 MR. THOMPSON: And I believe you were a maintenance 

15:02:54 8 technician; is that right? 

15:02:55 9 JUROR RYLIE: That's correct.

15:02:56 10 MR. THOMPSON: Can you tell us a little bit about 

15:02:57 11 what that job was and what you did on a daily basis?

15:02:59 12 JUROR RYLIE: I mainly maintained the semiconductor 

15:03:03 13 machines -- [unintelligible]. 

15:03:07 14 MR. THOMPSON: Can you say that again? I think you 

15:03:09 15 kind of cut out. Technology. You know how that goes.

15:03:12 16 JUROR RYLIE: [Unintelligible].

15:03:17 17 MR. THOMPSON: I'm hearing you, but I'm not sure the 

15:03:19 18 court reporter can.

15:03:38 19 JUROR RYLIE: I did maintenance on the semiconductor 

15:03:43 20 equipment that makes the wafers.

15:03:46 21 MR. THOMPSON: Okay. Okay. All right. Thank you 

15:03:48 22 very much. Appreciate you. 

15:03:56 23 Ms. Lewis. Now, Ms. Lewis, I think I noticed in your 

15:04:02 24 questionnaire that you said you have a real distrust of social 

15:04:05 25 media companies. You had some opinions about that. Can you 

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15:04:09 1 tell me about that? 

15:04:10 2 JUROR LEWIS: That's correct. I would say that 

15:04:12 3 pretty much sums it up. I have a very strong bias against 

15:04:15 4 social media, Facebook, particularly.

15:04:18 5 MR. THOMPSON: Okay. All right. Okay. Thank you 

15:04:20 6 very much. All right. 

15:04:24 7 Now, just to everyone, another question for the 

15:04:26 8 entire panel, so you can raise your hand if it applies to you.

15:04:29 9 Is there any of you who would have a problem sitting 

15:04:33 10 on a jury, regardless of the type of case it is, whether it's a 

15:04:37 11 patent case or any other kind of case, where you're asked to 

15:04:40 12 award potentially tens of millions or hundreds of millions of 

15:04:44 13 dollars? Just where that amount of money is a lot, and you 

15:04:47 14 would just have a problem considering that, no matter what the 

15:04:50 15 facts are. Does anyone -- anyone have a problem with that? If 

15:04:53 16 you do, raise your hand.

15:04:56 17 (No response)

15:04:56 18 MR. THOMPSON: Okay. I see no hands. 

15:04:58 19 Is there anyone here who just has sort of fundamental 

15:05:01 20 distrust of the government, just such that you feel like, if 

15:05:06 21 the government's involved in the process, whatever that is, 

15:05:09 22 it's probably messed up or screwed up or whatever because the 

15:05:12 23 government is involved in it? Does anyone here have a distrust 

15:05:15 24 in the government such that just anything they were involved 

15:05:17 25 in, you would question it, to put it another way? Anyone?

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15:05:21 1 (No response) 

15:05:21 2 THE COURT: Okay. I see no hands. 

15:05:24 3 All right. Who here considers yourself a leader? If 

15:05:27 4 you're in a situation and put in with a group of people, you're 

15:05:31 5 the type of person that kind of takes charge, whatever it is, 

15:05:33 6 and -- and moves forward. 

15:05:35 7 Okay one hand. Ms. Beebe; is that right, and Ms. -- 

15:05:39 8 Ms. Estes. Okay. Let me talk to Ms. Beebe first. Okay, 

15:05:50 9 Ms. Beebe, I'm going to put you on the spot again. 

15:05:52 10 Tell me why you think you're a leader -- consider 

15:05:55 11 yourself a leader? 

15:05:56 12 JUROR BEEBE: I'm in a lot of leadership positions. 

15:06:00 13 I teach at school, and I'm the leader of my department, based 

15:06:04 14 on I'm the only person in my department, so I'm in charge of 

15:06:08 15 running the art program at the school that I'm at. Also, at 

15:06:12 16 the old school that I was at, I was also the only art teacher, 

15:06:16 17 so I was over the entire department and built the program from 

15:06:20 18 scratch. Also I lead high school girls at my church.

15:06:25 19 MR. THOMPSON: Okay. And what's the name of the 

15:06:27 20 school that you teach? 

15:06:28 21 JUROR BEEBE: I work at San Marcos Academy.

15:06:32 22 MR. THOMPSON: Okay. Thank you very much, Ms. Beebe. 

15:06:34 23 I appreciate you. Can you pass that down to Ms. Estes? 

15:06:40 24 Okay, Ms. Estes, I'm putting you on the spot, too. I 

15:06:43 25 already know you're leading people at H-E-B, but tell me why 

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15:06:46 1 you consider yourself a leader.

15:06:49 2 JUROR ESTES: Mostly because of that, 38 years with 

15:06:51 3 H-E-B, running stores, director of operations for Central 

15:06:55 4 Texas, and now I'm the director of marketing and merchandising 

15:06:58 5 for the 56 stores here in Central Texas. I have a team of 

15:07:02 6 about 20 people reporting to me.

15:07:04 7 MR. THOMPSON: Okay. Twenty people, and you're over 

15:07:06 8 about 56 stores? 

15:07:08 9 JUROR ESTES: Yeah. Yes, sir.

15:07:09 10 MR. THOMPSON: Okay. Thank you very much. I 

15:07:11 11 appreciate you. 

15:07:21 12 Mr. Shultz. Mr. Shultz, I think in your 

15:07:29 13 questionnaire that there's a question about legal cases and 

15:07:35 14 such, and you indicated you work for Dell, I believe; is that 

15:07:39 15 right? 

15:07:40 16 JUROR SHULTZ: That's correct.

15:07:41 17 MR. THOMPSON: And you couldn't speak to any cases on 

15:07:43 18 behalf of Dell. Is that because you are involved in them and 

15:07:46 19 it's confidential, or it's because you don't know about any 

15:07:48 20 cases they're involved in? 

15:07:49 21 JUROR SHULTZ: Both, actually. I'm not involved in 

15:07:51 22 that department, and I'm not able to speak on their behalf as a 

15:07:55 23 spokesman.

15:07:56 24 MR. THOMPSON: Okay. But you're not involved in, 

15:07:58 25 like, the legal cases for Dell; is that right? 

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15:08:00 1 JUROR SHULTZ: That's correct.

15:08:02 2 MR. THOMPSON: Okay. All right. Thank you very 

15:08:03 3 much. Oh, wait. One other question. I think you also 

15:08:06 4 indicated that you had -- is it your spouse that works in a 

15:08:08 5 police role or something like that? Can you tell me about 

15:08:10 6 that? 

15:08:10 7 JUROR SHULTZ: Yeah. Police communications 

15:08:12 8 supervisor. Also a dispatcher for University of Texas.

15:08:17 9 MR. THOMPSON: Okay. All right. Thank you very 

15:08:19 10 much. 

15:08:21 11 All right. I believe that's all the questions I 

15:08:26 12 have. 

15:08:27 13 One other last question. See, that was a trick. One 

15:08:30 14 other last question. Judge Yeakel has asked you a lot of 

15:08:35 15 questions; I've asked you a lot of question. But is there 

15:08:37 16 anyone sitting here on this panel today that is sitting there 

15:08:41 17 thinking, If told him about X, whatever it is, it would 

15:08:44 18 probably mean I -- he would probably need to know that to 

15:08:48 19 decide whether or not I'd be a good juror for this case? 

15:08:51 20 Is there anything that you just need to share with us 

15:08:53 21 that you feel like we should know before choosing who is going 

15:08:56 22 to be the jurors in this case? Anyone? 

18:00:00 23 (No response)

15:09:00 24 MR. THOMPSON: Okay. All right. Well, I appreciate 

15:09:03 25 you, I thank you for your time, and we look forward to 

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15:09:06 1 presenting our case to the eight of you that are chosen. 

15:09:12 2 Thank you.

15:09:13 3 THE COURT: You may proceed.

15:09:14 4 MR. JONES: Thank you, Your Honor. 

15:09:17 5 Again, my name is Mike Jones. It is indeed my 

15:09:20 6 privilege in this case to represent Meta. As you've been told, 

15:09:23 7 they were formally known as Facebook. I'm probably going to 

15:09:27 8 just refer to them as Facebook because in all the documents and 

15:09:32 9 a lot of things you'll, see you'll hear everything talking 

15:09:35 10 about Facebook and we know them as Facebook. So that's what I 

15:09:39 11 will do, if it's okay with you. I also represent Instagram, 

15:09:44 12 and it's my privilege to do so.

15:09:45 13 In this particular case, the first thing I want to do 

15:09:49 14 on behalf of Facebook and Instagram is to thank you for coming 

15:09:56 15 here as jurors. I appreciate the time you're spending here, 

15:10:00 16 and I appreciate the time those of you who are selected as 

15:10:03 17 jurors will spend in this case. It's important time because 

15:10:06 18 this is an important resolution that needs to be decided 

15:10:10 19 between these parties. I thank you for doing that. I also 

15:10:14 20 thank you for the time you've already spent in filling out the 

15:10:16 21 questionnaires, because it does make things go much more 

15:10:20 22 smoothly.

15:10:20 23 And I do have a few questions that I want to ask you 

15:10:24 24 to follow up on things that you said in the questionnaire 

15:10:28 25 initially. But before I do that, the judge asked you if you 

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15:10:32 1 had personal dealings with the Patent and Trademark Office and 

15:10:36 2 also if you've had personal dealings either in applying or 

15:10:40 3 owning patents. And, unfortunately, I'm old. I don't move 

15:10:45 4 quickly, and I didn't get everybody's hand written down of 

15:10:50 5 those of you that raised your hand for that. 

15:10:52 6 So could I ask that question one more time and ask 

15:10:56 7 everybody to raise their hand, because I would like to talk to 

15:10:58 8 you each a little bit about those experiences that you have had 

15:11:03 9 with the patent office and have had experiences applying and 

15:11:07 10 owning patents.

15:11:08 11 So, if you would, would you raise your hands? Thank 

15:11:13 12 you. And I'll start out with you, Mrs. Moore-Cation. And I 

15:11:24 13 think you've already told us a little bit about those 

15:11:26 14 experiences, right? 

15:11:27 15 JUROR MOORE-CATION: Correct.

15:11:28 16 MR. JONES: And that your husband has been involved 

15:11:29 17 in that company that develops software products, correct? 

15:11:33 18 JUROR MOORE-CATION: Multiple companies, yes. 

15:11:35 19 MR. JONES: Multiple companies. My question to you 

15:11:37 20 is this: Is there anything about those experiences that you've 

15:11:39 21 had or you've heard about from your husband that would cause 

15:11:41 22 you to lean one way or the other as we enter into this case? 

15:11:45 23 JUROR MOORE-CATION: No.

15:11:46 24 MR. JONES: Okay. Thank you so much. Who is next on 

15:11:49 25 the first row? Yes, sir. That would be Mr. Ziaja. Did I 

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15:11:55 1 pronounce that right?

15:11:55 2 JUROR ZIAJA: Ziaja.

15:11:58 3 MR. JONES: I apologize. Anyway, could you tell me a 

15:12:01 4 little bit about your experiences? 

15:12:03 5 JUROR ZIAJA: So I think the question he asked was 

15:12:05 6 family members, too. I applied for one patent when I worked at 

15:12:09 7 IBM, but I was not granted one. And then my son worked for 

15:12:13 8 Paypal, and I think he was granted 12 or 13 patents in Paypal. 

15:12:16 9 And then I have a brother who was granted several patents at -- 

15:12:21 10 for Sun and for Oracle Joan.

15:12:26 11 MR. JONES: Thank you, sir. I appreciate that. My 

15:12:29 12 question to you would be the same that I just asked a moment 

15:12:31 13 ago. Is there anything about those experiences, either what 

15:12:34 14 you heard about from your son or others, or what you personally 

15:12:38 15 experienced, that would cause you to lean one way or the other 

15:12:40 16 as we begin this case? 

15:12:41 17 JUROR ZIAJA: No.

15:12:43 18 MR. JONES: Thank you, sir. I appreciate it. 

15:12:44 19 Next on the first row that would answer yes to that 

15:12:47 20 question? Anybody else on the first row had dealings with the 

15:12:52 21 patent office in either applying or owning patents? 

15:12:55 22 Thank you. So we can go to the next row, who would 

15:12:59 23 answer yes to that question? Yes, sir. I think that is 

15:13:02 24 Mr. Smith, right? 

15:13:03 25 JUROR SMITH: Yes.

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15:13:05 1 MR. JONES: Jones and Smith. All right. Yes, sir. 

15:13:08 2 Could you tell me about your experiences in that regard.

15:13:11 3 JUROR SMITH: I've applied for several U.S. patents.

15:13:14 4 MR. JONES: And what type of patents? 

15:13:16 5 JUROR SMITH: Electromechanical devices, not software 

15:13:19 6 related.

15:13:20 7 MR. JONES: Thank you. And how many, sir? 

15:13:23 8 JUROR SMITH: Three.

15:13:24 9 MR. JONES: Three. Thank you, sir. And is there 

15:13:26 10 anything about those experiences that would cause you to lean 

15:13:29 11 any way or the other as we start this case? 

15:13:32 12 JUROR SMITH: No.

15:13:34 13 MR. JONES: Thank you, sir. I appreciate it. 

15:13:36 14 Anybody else on the second row that's had experiences 

15:13:38 15 applying for and owning patents? Yes, sir. And that would be 

15:13:43 16 Mr. Rylie? 

15:13:45 17 JUROR ILANGO: Ilango.

15:13:47 18 MR. JONES: Okay. Thank you, sir. Juror 13, I 

15:13:50 19 believe, right, sir? 

15:13:52 20 JUROR ILANGO: Fourteen.

15:13:54 21 THE COURT: Thank you. Mr. Ilango. I apologize. 

15:13:58 22 And can you tell me a little bit about your experiences.

15:13:59 23 JUROR ILANGO: As part of working for my company, I 

15:14:02 24 have applied for several patents and received a dozen.

15:14:09 25 MR. JONES: And what type of patents did you receive? 

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15:14:12 1 JUROR ILANGO: Electronics design.

15:14:19 2 MR. JONES: Thank you, sir.

15:14:19 3 JUROR ILANGO: And electrical software. 

15:14:19 4 MR. JONES: Thank you, sir. And is there anything 

15:14:20 5 about that experience that would cause you to lean one way or 

15:14:23 6 the other as we begin this case? 

15:14:25 7 JUROR ILANGO: No.

15:14:27 8 MR. JONES: Thank you, sir. I appreciate it.

15:14:28 9 And then anybody else on the second row? 

18:00:00 10 (No response)

15:14:36 11 MR. JONES: Anybody else on the third row?

15:14:38 12 (No response) 

15:14:38 13 MR. JONES: Thank you so much. 

15:14:43 14 Now, I know that you all have -- while we're talking 

15:14:45 15 about the patent office, I know that you've all watched the 

15:14:48 16 film, the federal judiciary film that talks about patent 

15:14:52 17 lawsuits. And one of the things that was stated in the film 

15:14:57 18 that the judge had you look at was the fact that one of the 

15:15:01 19 issues in a case involving patent infringement may be whether 

15:15:05 20 or not the patent is valid. And I think that may happen in 

15:15:10 21 this case with regard to one of the patents in this case, the 

15:15:13 22 '557 case. 

18:00:00 23 Now, do any of you think it's unfair that a jury 

18:00:00 24 might be called upon to look at evidence and to consider 

18:00:00 25 evidence and decide whether or not a patent is valid? Do any 

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18:00:00 1 of you think that's unfair and we shouldn't operate that way? 

18:00:00 2 Anybody? 

18:00:00 3 (No response)

15:15:36 4 MR. JONES: The film also said that -- that there 

15:15:40 5 were numerous reasons why that was the case. But one of the 

15:15:45 6 reasons the film said was because jurors like yourselves, if 

15:15:49 7 you were chosen and selected to look at the evidence in this 

15:15:52 8 case, might consider evidence that the patent office did not 

15:15:57 9 consider; that jurors may see things, for example, prior art or 

15:16:03 10 prior inventions, that had not been seen by the patent office. 

15:16:07 11 Does anybody think that's unfair? 

18:00:00 12 (No response)

15:16:11 13 MR. JONES: Anybody? Thank you. I assume by your 

15:16:14 14 silence you do not. 

15:16:26 15 If we could go to Juror Number 4, Mr. Ziaja. And I 

15:16:33 16 just said your name wrong again. Tell me one more.

15:16:36 17 JUROR ZIAJA: Ziaja.

15:16:39 18 MR. JONES: Ziaja. I apologize. I really do. 

15:16:41 19 I noticed in reviewing your questionnaires that you 

15:16:43 20 were part of developing a startup company in the 1990s.

15:16:50 21 JUROR ZIAJA: Yes.

15:16:51 22 MR. JONES: Right, sir? 

15:16:52 23 JUROR ZIAJA: Yes, sir.

15:16:54 24 MR. JONES: Could you describe that experience to me 

15:16:56 25 a little bit.

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15:16:57 1 JUROR ZIAJA: It was a telecommunications support 

15:16:59 2 company that did work -- we had contracts with La Quinta 

15:17:04 3 Hotels, with Arizona Public Service, and then we got venture 

15:17:08 4 funding from Austin Ventures and we sold it off to a company 

15:17:11 5 out of Atlanta.

15:17:13 6 MR. JONES: Thank you, sir. Is there anything about 

15:17:16 7 those experiences that would cause you to lean one way or the 

15:17:19 8 other as we start this case? 

15:17:20 9 JUROR ZIAJA: No.

15:17:21 10 MR. JONES: Thank you. I appreciate it.

15:17:23 11 And if we could, Ms. Rudolphi? 

15:17:32 12 JUROR RUDOLPHI: Rudolphi.

15:17:34 13 MR. JONES: I'm sorry. I'm not winning today. 

15:17:40 14 And besides apologizing for mispronouncing your name, 

15:17:43 15 with regard to the class action suit you were involved in, were 

15:17:46 16 you the class representative? 

15:17:48 17 JUROR RUDOLPHI: Oh, no.

15:17:50 18 MR. JONES: Okay. Thank you, ma'am. 

15:18:01 19 And, if we could, I'd like to ask Ms. Powell a 

15:18:05 20 question, Juror 18. 

15:18:10 21 JUROR POWELL: Hello.

15:18:11 22 MR. JONES: How are you today? 

15:18:14 23 JUROR POWELL: Good. 

15:18:15 24 MR. JONES: Good. I noted that you were a service 

15:18:17 25 delivery manager for Cisco for 16 years, if I got it right. 

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15:18:21 1 Could you describe that job for us, please, ma'am.

15:18:23 2 JUROR POWELL: I interfaced with customers and with 

15:18:26 3 our network operations center with a product that we sold. And 

15:18:32 4 I basically made sure that we delivered the service that we -- 

15:18:36 5 that they contracted for.

15:18:37 6 MR. JONES: Thank you, ma'am. I appreciate it. 

15:18:51 7 Could we go to Mr. Smith, Juror 19. You told me a 

15:18:57 8 little bit about your involvement in patent applications and 

15:19:01 9 obtaining patents, right, sir? 

15:19:02 10 JUROR POWELL: Yes, sir.

15:19:03 11 MR. JONES: Jones I also noticed, I've gone back 

15:19:06 12 looking at my notes on your questionnaire, and it said that 

15:19:08 13 while you were at PGS, my team and I supported multiple 

15:19:12 14 application cases, prior art claims, and other technical 

15:19:15 15 support. Can you tell me what that means? 

15:19:17 16 JUROR SMITH: Sure. So I led an engineering division 

15:19:19 17 that was responsible for all the technical support for our 

15:19:22 18 legal team for patent applications, defenses, prior art 

15:19:26 19 research, et cetera.

15:19:27 20 MR. JONES: Thank you, sir. I appreciate it. 

15:19:37 21 And if we could go to Juror 22, Ms. Rodriguez?

15:19:45 22 JUROR RODRIGUEZ: Yes.

15:19:46 23 MR. JONES: I note that you were a science teacher at 

15:19:49 24 one time, right? 

15:19:50 25 JUROR RODRIGUEZ: Correct.

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15:19:53 1 MR. JONES: Could you tell me what subjects you 

15:19:55 2 taught and what levels? 

15:19:57 3 JUROR RODRIGUEZ: I taught six through eighth grade. 

15:20:00 4 I taught Earth science, physical science, and some biology.

15:20:04 5 MR. JONES: Thank you, ma'am. 

15:20:05 6 And then my next question would be for Ms. Lewis, 

15:20:09 7 Juror Number 12, please.

15:20:13 8 JUROR LEWIS: Yes, sir?

15:20:16 9 MR. JONES: Ms. Lewis, and I want to thank you. Voir 

15:20:19 10 dire means, I think, speak the truth, and I think you certainly 

15:20:22 11 did that on your questionnaire. And you stated on your 

15:20:24 12 questionnaire that, due to your feelings about social media, 

15:20:28 13 you could not be fair and impartial in a case involving social 

15:20:32 14 media companies, right? 

15:20:33 15 JUROR LEWIS: I think that is correct, yes.

15:20:35 16 MR. JONES: Thank you so much. I really appreciate 

15:20:38 17 your candor on that, and I'd like to kind of build on that. 

15:20:41 18 Thank you, ma'am. You can sit down.

15:20:42 19 I'd like to kind build on that with regard to the 

15:20:45 20 rest of the jury panel. And there are a lot of feelings about 

15:20:49 21 social media companies. I know that. And there's distrust of 

15:20:53 22 them, and there's dislike of them. 

15:20:58 23 My question to you is this: Does anybody feel that 

15:21:01 24 social media companies like Facebook invade people's privacy 

15:21:06 25 and do bad things because of that? 

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15:21:11 1 Yes. Thank you. And if I could, I'll take you-all 

15:21:13 2 one at a time. And I'll start out on the front row with 

15:21:18 3 Ms. Moore-Cation, please. 

15:21:24 4 Now, obviously, you have that feeling, and there's 

15:21:28 5 nothing wrong with having that feeling. We all have feelings. 

15:21:32 6 The questions we've got to decide here is, because of that 

15:21:36 7 feeling, does Facebook in this case start out a little bit 

15:21:38 8 behind? 

15:21:39 9 JUROR MOORE-CATION: No, they do not.

15:21:43 10 MR. JONES: Okay. We're on an even playing field, 

15:21:45 11 right? 

15:21:46 12 JUROR MOORE-CATION: Absolutely.

15:21:48 13 MR. JONES: And as we go forward, we're going to 

15:21:49 14 decide the case based upon the evidence, not based upon any 

15:21:51 15 feelings you might have? 

15:21:53 16 JUROR MOORE-CATION: Correct.

15:21:54 17 MR. JONES: Thank you. I appreciate it.

15:21:55 18 Okay. Could we go down. Who else raised their hand 

15:21:58 19 on the front row that said that? I think we're down at the 

15:22:02 20 very end, Mr. Chang. 

15:22:06 21 JUROR RUDOLPHI: That would be me also.

15:22:07 22 MR. JONES: Okay. I'm sorry. I didn't see you, did 

15:22:10 23 I.

15:22:11 24 JUROR RUDOLPHI: My sentiment is the same as her.

15:22:15 25 MR. JONES: Excuse me? 

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15:22:16 1 JUROR RUDOLPHI: My sentiment is the same. They 

15:22:19 2 won't start on the back end. 

15:22:20 3 Okay. Thank you, Ms. Rudolphi.

15:22:25 4 MR. JONES: Mr. Chang, again, you have feelings, 

15:22:28 5 obviously, about social media companies. My question to you is 

15:22:31 6 pretty simple: Does everybody start out here on an even 

15:22:35 7 playing field? Do we start out the same? Or is that something 

15:22:38 8 that causes you to feel one side is ahead of the other? 

15:22:42 9 JUROR CHANG: Well, I can think it starts even-keel. 

15:22:46 10 I think if you were to push me and ask me that question again, 

15:22:50 11 I probably would see you in a negative deficit in terms of not 

15:22:55 12 even-keel. I get this case is not about merits of social media 

15:23:03 13 companies, but it is in my mind.

15:23:06 14 MR. JONES: Certainly. Well, let me -- let me ask 

15:23:09 15 you just a couple of more questions about that. You know, 

15:23:13 16 before you've seen any evidence in this case, before you've 

15:23:17 17 seen anything, is that something -- your feelings about social 

15:23:22 18 media companies and Facebook, is that something that Facebook 

15:23:25 19 would have to overcome as it proceeds in this case? 

15:23:29 20 JUROR CHANG: Possibly. Like if it's a scale one to 

15:23:35 21 five, it would be close to four.

15:23:37 22 MR. JONES: I got you. And is that something that, 

15:23:40 23 you know, you might hold Facebook to a little higher standard 

15:23:45 24 than the other party because of that, right? 

15:23:48 25 JUROR CHANG: Correct.

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15:23:49 1 MR. JONES: And is it something, your feelings, 

15:23:52 2 something that you would -- you know, whether you wanted it to 

15:23:56 3 or not, if a Facebook employee gets up there, you might, you 

15:24:00 4 know, test their evidence a little harder just because of who 

15:24:04 5 they work for? Is that fair? 

15:24:06 6 JUROR CHANG: That's fair.

15:24:07 7 MR. JONES: Thank you, sir. I appreciate it. Thank 

15:24:09 8 you so much for your candor. I really do appreciate it. Did I 

15:24:13 9 miss anybody else on the front row with that question?

15:24:16 10 (No response) 

15:24:16 11 MR. JONES: Okay. Let's go to the second row if we 

15:24:18 12 could. Who has those feelings on the second row? Yes. Thank 

15:24:23 13 you. Mr. Champlin, right, sir? 

15:24:31 14 JUROR CHAMPLIN: Yes, sir.

15:24:34 15 MR. JONES: Okay. You've heard my questions before. 

15:24:35 16 What I'm going to ask you is this: Obviously, you have strong 

15:24:38 17 feelings about social media companies; is that right, sir? 

15:24:41 18 JUROR CHAMPLIN: Yes, sir.

15:24:42 19 MR. JONES: And, obviously, we all know Facebook is a 

15:24:44 20 social media company. So do they start out a little bit behind 

15:24:48 21 in this case before we ever get going? 

15:24:51 22 JUROR CHAMPLIN: I wouldn't think so in this case.

15:24:53 23 MR. JONES: Okay. Everybody is on even footing.

15:24:56 24 JUROR CHAMPLIN: Yes.

15:24:58 25 MR. JONES: Thank you, sir. I appreciate it. Thank 

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15:24:59 1 you for your candor. 

15:25:02 2 JUROR ESTES: Ms. Estes.

15:25:03 3 MR. JONES: Ms. Estes. I appreciate you helping me 

15:25:06 4 out.

15:25:07 5 JUROR ESTES: No worries.

15:25:08 6 MR. JONES: Very kind of you. And my question to you 

15:25:10 7 is you're telling me I have strong feelings about social media 

15:25:12 8 companies.

15:25:12 9 JUROR ESTES: From a personal standpoint, absolutely. 

15:25:15 10 I don't use, won't use it. Big waste of time. Now, on the 

15:25:19 11 business side of things, obviously, the company uses it, you 

15:25:22 12 know, from an advertising standpoint. So ...

15:25:25 13 MR. JONES: Great. And, as we start this case, do 

15:25:27 14 those feelings play any part in the way you feel about the 

15:25:31 15 parties and the evidence that's about to come in? Do we all 

15:25:34 16 start in the same place.

15:25:35 17 JUROR ESTES: Probably not.

15:25:37 18 MR. JONES: Okay. So before you hear any evidence in 

15:25:40 19 this case -- and, again, I totally appreciate your candor. 

15:25:43 20 Before you hear any evidence in this case, what you're telling 

15:25:46 21 me is, Mr. Jones, you know, your client is starting out a bit 

15:25:49 22 behind, sir.

15:25:49 23 JUROR ESTES: A very small part behind.

15:25:52 24 MR. JONES: But we are behind. Fair enough.

15:25:54 25 JUROR ESTES: Uh-huh.

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15:25:56 1 MR. JONES: Again the same question, just as I asked 

15:25:59 2 Mr. Chang, is it just due to the fact that we're Facebook and 

15:26:00 3 we're a social media company, you're going to hold us to a 

15:26:03 4 little higher standard than maybe you would another party? 

15:26:06 5 JUROR ESTES: Yes, sir.

15:26:07 6 MR. JONES: And, again, when you hear testimony from, 

15:26:09 7 say, a Facebook employee, is that also going to say, you know, 

15:26:13 8 I'm going to listen a little harder to what he has to say just 

15:26:15 9 because who he works for? 

15:26:16 10 JUROR ESTES: Not necessarily.

15:26:18 11 MR. JONES: Not necessarily. Thank you. I 

15:26:20 12 appreciate it. Thank you so much. 

15:26:26 13 Yes. Mr. Ilango, you have strong feelings about 

15:26:31 14 social media companies, right, sir? 

15:26:32 15 JUROR ILANGO: Yes, I do.

15:26:33 16 MR. JONES: Is there anything about those feelings 

15:26:36 17 that means that my client, Facebook, before you hear any 

15:26:39 18 evidence in this case starts out just a little bit behind or 

15:26:42 19 behind? 

15:26:43 20 JUROR ILANGO: Yes, they do.

15:26:44 21 MR. JONES: Okay. And, again, you know, with regard 

15:26:47 22 to my client, is it such that, you know, you're just going to 

15:26:50 23 hold my client to a higher standard than you might some other 

15:26:53 24 party just because of your strong feelings against social media 

15:26:57 25 companies and Facebook, right, sir? 

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15:26:59 1 JUROR ILANGO: Yes.

15:27:01 2 MR. JONES: And, again, if you hear testimony from a 

15:27:05 3 Facebook employee, you're going to -- just because of your 

15:27:10 4 feelings, you're going to judge it little more harshly due to 

15:27:14 5 who they work for, right, sir? 

15:27:15 6 JUROR ILANGO: Not the employee, no.

15:27:17 7 MR. JONES: Not the employees? 

15:27:19 8 JUROR ILANGO: Just the company.

15:27:21 9 MR. JONES: Thank you so much. I appreciate your 

15:27:23 10 candor. And I think, yes, I've already talked to you. Thank 

15:27:29 11 you so much, Ms. Lewis. I appreciate it.

15:27:31 12 And I think we're to Ms. Stone, right? And can you 

15:27:36 13 tell me about your feelings with regard to social media 

15:27:40 14 companies.

15:27:40 15 JUROR STONE: Yeah. So I think Facebook would be a 

15:27:43 16 little bit behind.

15:27:44 17 MR. JONES: Thank you. So due to the fact the way 

15:27:47 18 you feel about social media companies, Facebook in 

15:27:50 19 particular -- and I appreciate your candor -- you're just 

15:27:52 20 telling me Facebook starts behind in this case before any 

15:27:55 21 evidence has been presented, right, ma'am? 

15:27:57 22 JUROR STONE: Yes.

15:27:59 23 MR. JONES: And, again, similar questions. I'd just 

15:28:01 24 like to ask you this: In this case would you hold Facebook, 

15:28:04 25 due to your feelings in this regard, to a higher standard than 

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15:28:08 1 you might some other party? 

15:28:10 2 JUROR STONE: Yes.

15:28:11 3 MR. JONES: Okay. And when Facebook employees -- and 

15:28:13 4 they're going to. They're going to get up and testify. Would 

15:28:15 5 you judge their testimony a little more harshly than others 

15:28:19 6 based upon your feelings; is that right? 

15:28:21 7 JUROR STONE: Yes.

15:28:22 8 MR. JONES: Thank you, ma'am. I certainly appreciate 

15:28:24 9 your candor. 

15:28:30 10 And on the third row, have I missed anybody? Yes, 

15:28:32 11 ma'am. Ms. Rodriguez? 

15:28:33 12 JUROR RODRIGUEZ: I raised my hand in response to 

15:28:36 13 what you were saying about social media using data from its 

15:28:41 14 users.

15:28:41 15 MR. JONES: Right.

15:28:42 16 JUROR RODRIGUEZ: And I responded to that.

15:28:45 17 MR. JONES: I understand. And I would then kind of 

15:28:47 18 drill down as I've done with your other panel members, and I 

15:28:50 19 certainly appreciate the answers they've given me. Is there 

15:28:54 20 anything about that, that before we ever have any evidence from 

15:28:57 21 that witness stand in this case, that causes you to feel that 

15:29:01 22 Facebook's a little behind in this case already? 

15:29:04 23 JUROR RODRIGUEZ: No.

15:29:05 24 MR. JONES: Okay. Thank you, ma'am. I appreciate 

15:29:07 25 your candor. Thanks so much. 

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15:29:25 1 Now, Facebook and other social media companies have 

15:29:28 2 been in the news lately with regard to a number of items, but 

15:29:36 3 particularly with regard to politics. And I'm not going to ask 

15:29:40 4 anybody about any questions about their political beliefs. I'm 

15:29:42 5 just going to ask you this: Does anybody hold a political 

15:29:47 6 belief of any kind such that your political belief causes you 

15:29:53 7 to think that Facebook is not a good corporate entity? 

15:29:56 8 Do any of you hold political beliefs that cause you 

15:30:02 9 to feel that way? 

15:30:03 10 Yes, sir, Mr. Chang. Thank you, sir. I appreciate 

15:30:06 11 that. 

15:30:09 12 One final thing. Did somebody else raise your hand 

15:30:13 13 and I missed? Okay. Sorry. One final thing about Facebook 

15:30:16 14 inquiries. Recently Facebook was involved in a class action 

15:30:19 15 suit totally unrelated to the issues in this case, and notices 

15:30:23 16 recently went out about this class action. Has anybody 

15:30:26 17 received a notice like that? 

15:30:29 18 (No response)

15:30:31 19 MR. JONES: Thank you. Now, excluding Mr. Kalish, 

15:30:37 20 because he was kind enough to give us a lot of information 

15:30:40 21 about his special knowledge, after hearing Judge Yeakel's 

15:30:46 22 summary of this case, does anyone think, you know, after 

15:30:52 23 hearing him talk about this case, I have some special knowledge 

15:30:56 24 that applies to this case? Anybody feel like that as they sit 

15:31:01 25 here?

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15:31:03 1 (No response) 

15:31:03 2 MR. JONES: Thank you. Now, a number of you have 

15:31:10 3 started businesses. I noted that. And many of you own and 

15:31:16 4 operate businesses. And I would like to ask this question to 

15:31:22 5 the group as a whole because there's so many of you that do 

15:31:26 6 that. And that is this: 

15:31:27 7 Does anyone feel, from having started up a business 

15:31:33 8 or owned and operated a business, that their competitors in the 

15:31:38 9 marketplace are unfair to them? Does anybody feel like that? 

15:31:46 10 Does anybody feel like I've been in business for a long time 

15:31:50 11 and my competitors treat me very unfairly? 

15:31:53 12 (No response)

15:31:53 13 MR. JONES: Does anybody feel like, as a general 

15:31:56 14 rule -- this is just a general rule -- that large corporations 

15:31:59 15 take advantage of smaller businesses? Anybody feel like that.

15:32:06 16 Mr. Chang. Thank you, sir. 

15:32:09 17 Now, if we could, could I ask you one more question, 

15:32:13 18 Mr. Chang. Excuse me? Thank you. I've got a few more. Okay. 

15:32:16 19 Mr. Chang, if I could ask you a question, is your 

15:32:29 20 feeling in that regard, larger corporations taking advantage of 

15:32:33 21 smaller corporations, is that something that might affect your 

15:32:36 22 deliberations? 

15:32:37 23 JUROR CHANG: Possibly. Again, just because it's 

15:32:42 24 hard to ignore as far as the concept goes.

15:32:46 25 MR. JONES: Thank you, sir. Let me ask it to you 

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15:32:49 1 this way: You know, in this case there is no doubt that Voxer 

15:32:54 2 is not as large as Facebook is. Would that fact mean that you 

15:33:00 3 would feel the need to kind of protect them in the case as a 

15:33:06 4 juror? You would feel that way going into the case? 

15:33:09 5 JUROR CHANG: Not necessarily, no.

15:33:13 6 MR. JONES: Thank you, sir. I appreciate it.

15:33:15 7 And I missed somebody else on the second row, I 

15:33:19 8 think. Yes. Mr. Ilango. 

15:33:28 9 And I'd ask you just the same question I asked him. 

15:33:31 10 You know, in this case, like I just said, Voxer is no doubt 

15:33:35 11 going to be smaller than Facebook. And my question to you: Do 

15:33:38 12 you feel like you might need to take care of the smaller 

15:33:42 13 business in a lawsuit with a larger business? 

15:33:44 14 JUROR ILANGO: No.

15:33:46 15 MR. JONES: Thank you, sir. So they both -- size 

15:33:48 16 would play no role whatsoever in your decision in this case? 

15:33:51 17 JUROR ILANGO: No.

15:33:52 18 MR. JONES: Thank you, sir.

15:33:53 19 THE COURT: And I believe, finally, somebody on the 

15:33:56 20 back row. Ms. Rodriguez? Yes, ma'am.

15:33:59 21 JUROR RODRIGUEZ: So you had asked if we think that 

15:34:05 22 big companies take advantage of smaller ones? 

15:34:07 23 MR. JONES: Yes, ma'am.

15:34:09 24 JUROR RODRIGUEZ: And I do believe that.

15:34:13 25 MR. JONES: And my question to you would be this: 

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15:34:13 1 Would that play any role in your deliberations in this case? 

15:34:16 2 JUROR RODRIGUEZ: No.

15:34:17 3 MR. JONES: Thank you. I appreciate it. 

15:34:25 4 Yes, sir. Mr. Kalish. I'm sorry.

15:34:28 5 JUROR KALISH: I have some issues with Facebook, and 

15:34:31 6 I think it's the natural order of things, for larger companies 

15:34:35 7 to take advantage of smaller companies when they can. I work 

15:34:38 8 for a company that was definitely taken advantage of by one of 

15:34:41 9 the largest companies in the world until recently. We turned 

15:34:44 10 the tables on them. But I think that I might be somewhat more 

15:34:49 11 skeptical of Facebook and perhaps not -- maybe put a little bit 

15:34:55 12 more weight on the Voxer evidence and witnesses.

15:35:04 13 MR. JONES: Okay. And I appreciate your candor, 

15:35:06 14 Mr. Kalish. It's very kind of you to tell me that.

15:35:09 15 So, if I get it right, what you're telling me is 

15:35:13 16 that, look, Mr. Jones, as we start out this case, I want you to 

15:35:18 17 know I'm going to have skepticism toward whatever evidence is 

15:35:23 18 presented by Facebook. Fair enough? 

15:35:25 19 JUROR KALISH: I would like to say no, but I think 

15:35:28 20 that I would probably have that in the back of my mind, yes.

15:35:31 21 MR. JONES: Yeah. And that's something that -- that 

15:35:34 22 you feel before we begin the evidence, right, sir? Before any 

15:35:39 23 evidence comes in place? 

15:35:40 24 JUROR KALISH: Right.

15:35:40 25 MR. JONES: Right, sir. And that's something that 

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15:35:43 1 will affect the way you deliberate and view the evidence, or 

15:35:46 2 you're at least afraid it would? Fair enough, sir.

15:35:48 3 JUROR KALISH: I think that it's possible that I 

15:35:50 4 would try not to. But I think I -- like I said, I think I 

15:35:54 5 would be more skeptical, and I think it's a David-Goliath type 

15:36:02 6 situation.

15:36:03 7 MR. JONES: Thank you, sir. I appreciate it. Thank 

15:36:05 8 you so much.

15:36:06 9 Well, we're nearing the end of my time here. I'll 

15:36:09 10 tell you what. I'll try to jump in and just ask just two more 

15:36:12 11 questions or two more subject matters.

15:36:14 12 You've heard Judge Yeakel summarize this case. Is 

15:36:21 13 there anybody that, when they heard about it, kind of had a 

15:36:28 14 déjà vu kind of reaction to it? Kind of like, you know, hey, 

15:36:31 15 I've seen that movie before, I have some similar experience, or 

15:36:35 16 I know about certain circumstances that are just like that or 

15:36:40 17 very similar to that? 

15:36:41 18 Did anybody get that feeling or have that opinion 

15:36:44 19 when they heard Judge Yeakel summarize the case? 

15:36:47 20 (No response)

15:36:47 21 MR. JONES: Anybody? Thank you.

15:36:51 22 My final question to you is this, but before I ask 

15:36:55 23 it, I just want again thank you for your time. The good news I 

15:36:59 24 can tell you is I'm the last lawyer you're going to talk to 

15:37:02 25 today, so I know you're glad about that. So thank you so much 

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15:37:06 1 for your time. You've been very patient with me. 

15:37:08 2 My question to you is this: I take representing my 

15:37:11 3 clients Meta, Facebook, Instagram very, very seriously and my 

15:37:18 4 obligations to Mr. Poffenberger. As a result of that, I know I 

15:37:22 5 may not have asked the right question just because I'm not 

15:37:26 6 smart enough to. And my question to you is finally this: Is 

15:37:30 7 there something that we haven't talked about that you say, you 

15:37:33 8 know, in the back of your mind you're thinking, Mr. Jones, you 

15:37:37 9 really need to know this about whether or not I can be a fair 

15:37:40 10 juror to your clients. You really need to know this, but you 

15:37:43 11 haven't asked the right question.

15:37:45 12 Is there anything like that in anybody's mind they 

15:37:49 13 could tell me about? Anybody? Yes, ma'am.

15:37:55 14 JUROR MOORE-CATION: I would certainly hope this does 

15:37:58 15 not come into play, but I think it's important for me to say 

15:38:01 16 that I am very pro-small startup companies.

15:38:04 17 MR. JONES: Yes, ma'am.

15:38:07 18 JUROR MOORE-CATION: I don't think in this particular 

15:38:08 19 case that it would be an obstacle, but I do have a stake in 

15:38:16 20 several, and I just tend to really support entrepreneurs and 

15:38:23 21 innovators. And you should probably know that. That could be 

15:38:28 22 my bias. 

15:38:30 23 MR. JONES: Thank you so much.

15:38:32 24 JUROR MOORE-CATION: I hope not.

15:38:34 25 MR. JONES: Thank you so much. You're so kind to 

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15:38:36 1 tell me that. You know where I'm going to go next, and that's 

15:38:38 2 simply this: Is that something that you fear or you think may 

15:38:41 3 affect your deliberations, or do you think you can put that 

15:38:43 4 aside? 

15:38:43 5 JUROR MOORE-CATION: I hope not. I believe that it 

15:38:47 6 would not affect it. I hope it does not affect it. But I am 

15:38:51 7 aware that I might carry that bias.

15:38:55 8 MR. JONES: Thank you, ma'am. I appreciate your 

15:38:57 9 answer. I thank each and every one of you. I thank you very 

15:39:01 10 much.

15:39:05 11 THE COURT: Pardon me for a minute. I have to keep 

15:39:16 12 notes up here, too.

15:39:17 13 Ladies and gentlemen, the last couple of questions I 

15:39:20 14 have for you I think the lawyers have covered, but I'm going do 

15:39:24 15 ask them in my way. Other than what you have already stated, 

15:39:29 16 either in response to my questions or in response to any of the 

15:39:32 17 lawyers' questions, do you know of any reason why you might be 

15:39:36 18 prejudice for or against any of the parties because of the 

15:39:41 19 nature of this lawsuit or any other reason?

15:39:46 20 (No response) 

15:39:46 21 THE COURT: If you were one of the parties in this 

15:39:49 22 case, do you know of any reason that you haven't previously 

15:39:53 23 stated why you would not be content to have the case tried by 

15:39:57 24 someone in your frame of mind? 

18:00:00 25 (No response)

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15:40:02 1 THE COURT: And at the risk of being overly 

15:40:04 2 redundant, but that's what I do to try to get a fair and 

15:40:08 3 impartial jury, can you think of any other matter not yet 

15:40:11 4 touched upon which you should call to the court's attention 

15:40:15 5 which may have some bearing on your qualifications as a juror 

15:40:19 6 or which might prevent you from rendering a fair and impartial 

15:40:23 7 verdict in this case? 

18:00:00 8 (No response)

15:40:26 9 THE COURT: Thank you. Let me see the lawyers at the 

15:40:29 10 bench up here on this side for a moment, please.

15:40:32 11 (At the bench) 

15:40:43 12 THE COURT: Okay. Two to a side. That's better than 

15:40:46 13 clearing out all the tables.

15:40:48 14 It is my practice right now where I would release the 

15:40:53 15 panel and we would take up your challenges for cause and the 

15:40:55 16 other things that I've previously mentioned. Are there any 

15:40:59 17 jurors that you want held back for a moment to have a bench 

15:41:05 18 conference with regarding matters that you might want to 

15:41:10 19 challenge them for cause on, or are you satisfied you have all 

15:41:14 20 the information you need to make your challenges for cause? 

15:41:20 21 MR. THOMPSON: None from Plaintiff, Your Honor. 

15:41:23 22 THE COURT: You good too?

15:41:24 23 MR. JONES: Yes.

15:41:25 24 THE COURT: Then I'm going to release them for I 

15:41:27 25 think about 30 minutes, and that should give us time to take up 

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15:41:30 1 the challenges for cause and the other things and for you to 

15:41:32 2 mark your lists, and then we'll get them back in here. That 

15:41:35 3 work for everybody? 

15:41:36 4 MR. THOMPSON: Yes, Your Honor.

15:41:38 5 MR. JONES: Yes, Your Honor.

15:41:40 6 (In open court) 

15:41:40 7 THE COURT: Ladies and gentlemen of the jury panel, 

15:41:41 8 at this time I'm going to give you a break. We're not through, 

15:41:45 9 but we're going to finish up. There's some matters I need to 

15:41:49 10 take up with the lawyers, so I'm going to give you a break 

15:41:54 11 until 4:15. Don't go far. Don't come back in the courtroom, 

15:42:00 12 but by a little before 4:15, be out there in the area to where 

15:42:05 13 the staff can bring you back in to seat you when we let you 

15:42:09 14 know that I'm through with my discussion with the lawyers.

15:42:12 15 Now, I know we've got at least one schoolteacher on 

15:42:17 16 this panel, so this is just like school. Look to your right, 

15:42:20 17 look to your left, know who your neighbor is, because you need 

15:42:23 18 to be seated in the same seats that you're in now when you come 

15:42:27 19 back in the courtroom. So be sure you do that.

15:42:30 20 So at this time you'll be in recess until 4:15.

18:00:00 21 (Jury panel recessed)

15:43:28 22 THE COURT: Let the record reflect that the jury 

15:43:29 23 panel has been recessed from the courtroom. There are no 

15:43:33 24 prospective jurors remaining in the courtroom. 

15:43:42 25 I indicated to you earlier today that I would be 

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15:43:44 1 keeping track of people that I thought would be people that 

15:43:47 2 would be problem jurors and urged you to do the same. I didn't 

15:43:56 3 find any that I thought would be problem jurors or that would 

15:43:58 4 have a problem hearing this case. I'm sure you-all heard some 

15:44:03 5 comments from jurors that might lead to your challenges for 

15:44:06 6 cause. 

15:44:06 7 But did anyone come up with anybody they would like 

15:44:09 8 to discuss that we should determine whether just to exclude on 

15:44:13 9 general principles or not? 

15:44:15 10 I'll start with the plaintiff, not because I favor 

15:44:19 11 the plaintiff, but I read from top to bottom, and in every case 

15:44:22 12 I've ever tried the plaintiff has been above the "v." 

15:44:26 13 So, Mr. Thompson, did you I have anybody listed? 

15:44:30 14 MR. THOMPSON: None from our side, Your Honor? 

15:44:32 15 THE COURT: And how about you, Mr. Jones?

15:44:35 16 MR. JONES: Your Honor, I have some challenges for 

15:44:36 17 cause, but I have none that I think follow in the category you 

15:44:37 18 just mentioned. 

15:44:38 19 THE COURT: All right. Then I'm going to start with 

15:44:40 20 the plaintiff again because that's my default. Mr. Thompson, 

15:44:45 21 challenges for cause? 

15:44:47 22 MR. THOMPSON: Your Honor, I would -- we would 

15:44:53 23 challenge Number 17. I think it was pretty obvious that 

15:44:59 24 Mr. Champlin, he has issues with how the patent office works. 

15:45:05 25 He has issues with the patent process. It seems to me he's not 

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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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15:45:08 1 going to be able to be a fair and impartial juror on this 

15:45:12 2 particular case.

15:45:14 3 THE COURT: All right. Let me hear a response from 

15:45:17 4 Mr. Jones.

15:45:18 5 MR. JONES: Your Honor, I didn't hear anything from 

15:45:21 6 Mr. Champlin that would result in rising to the level of cause. 

15:45:25 7 He does have certain feelings, but he didn't say any of those 

15:45:29 8 feelings were going to affect his deliberations. And, as such, 

15:45:32 9 I don't think he met the appropriate standard to state a 

15:45:35 10 challenge for cause.

15:45:36 11 THE COURT: I listened to him very carefully, and I 

15:45:42 12 believe the last statement he made to whoever he spoke to first 

15:45:46 13 said he could be fair. I take him at his word, so the 

15:45:49 14 challenge for cause to Juror Number 17 is overruled. 

15:45:58 15 Mr. Thompson, others? 

15:45:59 16 MR. THOMPSON: No, Your Honor. No more challenges 

15:46:01 17 for cause from Plaintiff.

15:46:02 18 THE COURT: All right. From the defendant? 

15:46:04 19 MR. JONES: Yes, Your Honor.

15:46:06 20 THE COURT: Mr. Jones? 

15:46:07 21 MR. JONES: We would challenge for cause Juror 

15:46:10 22 Number 10 Mr. Chang. He said due to his feelings about social 

15:46:15 23 media companies, Facebook, and other matters, that he had 

15:46:18 24 preexisting feelings and opinions that would affect his 

15:46:22 25 deliberations. And he could not assure us that he could put 

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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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15:46:26 1 those aside and they wouldn't affect his deliberations. In 

15:46:29 2 fact, he said my client started out behind. That is our 

15:46:33 3 challenge for cause, Your Honor.

15:46:34 4 THE COURT: All right. Mr. Thompson? 

15:46:35 5 MR. THOMPSON: I'll let Mr. Chang's statements speak 

15:46:38 6 for themselves, Your Honor.

15:46:39 7 THE COURT: Well, I'm going to tell you how I heard 

15:46:42 8 him, and I agree with the defendant. So Juror Number 10, the 

15:46:47 9 challenge for cause is sustained, and Juror Number 10 is off.

15:46:53 10 MR. THOMPSON: That's the best I could come up with, 

15:46:55 11 Your Honor.

15:46:58 12 THE COURT: I appreciate your candor, but we all sit 

15:47:00 13 here and hear the same things. And we've tried cases and we 

15:47:03 14 just understand how it's going to work, so I appreciate that.

15:47:08 15 MR. JONES: We would next challenge for cause 

15:47:10 16 Ms. Lewis, who on the form said she could not be a fair and 

15:47:14 17 impartial juror in any case involving a social media company. 

15:47:18 18 She has confirmed now on the record, Your Honor, and I think 

15:47:22 19 she meets every requirement that's needed to be stricken for 

15:47:26 20 cause.

15:47:28 21 MR. THOMPSON: Same response, Your Honor.

15:47:30 22 THE COURT: Yep. That's exactly the way I heard it, 

15:47:32 23 so the challenge for cause is sustained, and Juror Number 12 is 

15:47:41 24 stricken.

15:47:43 25 MR. JONES: Your Honor, our next challenge for cause 

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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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15:47:45 1 would be Mr. Ilango, who said he had strong feelings against my 

15:47:49 2 client, Facebook. He said that he had strong feelings about 

15:47:53 3 large corporations and the way they operated and that it would 

15:47:56 4 affect the way he deliberated and viewed the evidence. And he 

15:48:00 5 did not know that he could put it behind him, so I would 

15:48:02 6 challenge him for cause also.

15:48:05 7 MR. THOMPSON: Your Honor, I thought that Mr. Ilango 

15:48:08 8 at some point said that he could put those things aside. I may 

15:48:10 9 be wrong, but that he had strong feelings but he could put 

15:48:13 10 those aside for this particular case.

15:48:15 11 THE COURT: I didn't hear him say he could put them 

15:48:18 12 aside. I did her him say pretty strongly that Facebook started 

15:48:25 13 behind, and I thought he said that strongly enough to where he 

15:48:30 14 would have a problem rehabilitating himself. So I will sustain 

15:48:34 15 the challenge for cause to Juror 14.

15:48:41 16 MR. JONES: Your Honor, my next challenge for cause 

15:48:44 17 would be Juror Number 15, Ms. Estes, who, again, testified 

15:48:47 18 that -- or who stated that, due to her feelings about larger 

15:48:54 19 companies over smaller companies and the way they take 

15:48:57 20 advantage of them, as well as about my client, Facebook, that 

15:49:01 21 she had preexisting feelings that would cause my client to 

15:49:04 22 start out behind. And there was some impression that she 

15:49:07 23 wouldn't put aside or couldn't guarantee if she could put aside 

15:49:11 24 as she looked at the evidence, so we would challenge her for 

15:49:13 25 cause also.

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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15:49:15 1 MR. THOMPSON: Your Honor, I thought that I heard 

15:49:18 2 Mrs. Estes -- I know she had some strong opinions, but I 

15:49:20 3 thought she had said that she would do her best to set those 

15:49:23 4 aside to be a juror on this case. But I may have misunderstood 

15:49:27 5 her.

15:49:28 6 THE COURT: Well, I also think that she said she 

15:49:33 7 could set those aside, so I'm going to overrule the challenge 

15:49:40 8 for cause to Juror Number 15.

15:49:45 9 MR. JONES: Thank you. And then my final challenge 

15:49:47 10 for cause, I believe, unless my colleagues tell me I've missed 

15:49:50 11 somebody -- and I may have -- but, anyway, would be Juror 

15:49:55 12 Number 21, Mr. Kalish who said that, due to his experiences in 

15:50:01 13 the workplace, that he could not be fair to Facebook.

15:50:04 14 MR. THOMPSON: I'll defer to the Court on that one.

15:50:07 15 THE COURT: Well, I'm going to take the easy way out. 

15:50:10 16 Unless Mr. Jones is given a note that he's missed somebody in 

15:50:15 17 between, we're not going to get to 21 anyway, so I won't rule 

15:50:18 18 on that one.

15:50:21 19 MR. VAN NEST: We did miss someone, Your Honor. 

15:50:24 20 THE COURT: So now tell me which one you missed. 

15:50:27 21 MR. JONES: It would be Juror Number 11, Ms. Stone, 

15:50:30 22 who said that -- my memory of this is that she said that, due 

15:50:35 23 to her feelings about social media companies, that Facebook 

15:50:39 24 would be starting out behind and that she did not guarantee us 

15:50:45 25 and say for certain that she could put those feelings aside in 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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15:50:49 1 considering the evidence.

15:50:54 2 MR. VAN NEST: Your Honor, may I mention one thing? 

15:50:55 3 I apologize. May I mention one thing about her as well? 

15:50:59 4 THE COURT: Yes.

15:51:00 5 MR. VAN NEST: She actually did say that she would be 

15:51:02 6 holding our employees to a much higher standard in listening to 

15:51:06 7 their testimony. That was in addition to saying that the 

15:51:09 8 company would start out behind. That is Ms. stone.

15:51:16 9 THE COURT: And you don't think that would be 

15:51:18 10 deserving of that, Mr. Jones?

15:51:20 11 (Laughter)

15:51:20 12 MR. JONES: I hope not.

15:51:21 13 MR. THOMPSON: Your Honor, I didn't hear her confirm 

15:51:27 14 with that level of, I guess, power that she was going to -- she 

15:51:30 15 couldn't set things aside. I did understand that she didn't 

15:51:33 16 like social media companies and didn't use it.

15:51:38 17 THE COURT: My notes indicate concern about being 

15:51:41 18 able to set those aside, so I'm going to sustain the challenge 

15:51:43 19 for cause to Juror 11. So is that it on challenges for cause.

15:51:51 20 MR. JONES: Yes, sir, Your Honor.

15:52:10 21 THE COURT: So Juror Number 18 is the last juror in 

15:52:12 22 your strike range; is that correct? Does everybody agree with 

15:52:15 23 that.

15:52:15 24 MR. THOMPSON: I agree with that, Your Honor.

15:52:23 25 MR. VAN NEST: Juror 18 is the last one? 

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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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15:52:25 1 THE COURT: Yes. As long as you agree with that.

15:52:28 2 MR. VAN NEST: We do.

15:52:28 3 THE COURT: Because I don't want anybody, unless you 

15:52:31 4 just get carried away, to strike outside your strike range. I 

15:52:35 5 don't want you to do it because you over ...

15:52:37 6 All right. Then that's what we'll do. I'll give 

15:52:41 7 you -- what do you need? 15 minutes maybe? 

15:52:44 8 MR. THOMPSON: That would be great. 

15:52:45 9 THE COURT: All right. We've got the jury coming 

15:52:47 10 back at 4:15. I'll be back at 4:10 or so. Actually, when you 

15:52:52 11 get through with your strikes, if you'll gave them to 

15:52:54 12 Ms. Oakes, she'll bring them to me and I'll look at it and come 

15:52:57 13 back, and it will be about 410.

15:52:59 14 Do you-all want to take a quick recess after you've 

15:53:02 15 stricken your lists? 

15:53:04 16 MR. VAN NEST: Sure. That would be great, Your 

15:53:05 17 Honor.

15:53:05 18 THE COURT: Why don't you strike your lists, give 

15:53:07 19 them to Ms. Oakes, and then take whatever break you want to. 

15:53:10 20 And when you're back in the courtroom, then we'll get the jury 

15:53:12 21 back in.

15:53:18 22 (Recess)

16:14:39 23 (Open court, no jury) 

16:14:39 24 THE COURT: You've had an opportunity to see one 

16:14:40 25 another's strikes.

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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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16:14:42 1 MR. THOMPSON: Yes we have, Your Honor.

16:14:43 2 MR. JONES: Yes, Your Honor.

16:14:44 3 THE COURT: Is there any other thing we need to take 

16:14:46 4 up before we seat the jury? You're satisfied that is the jury, 

16:14:49 5 whether you're satisfied with each of them individually or not? 

16:14:52 6 MR. VAN NEST: That's right, Your Honor.

16:14:53 7 THE COURT: We good? 

16:14:54 8 Well, I will tell you, having been on your side of 

16:14:56 9 the bench for a long time, I'm sure you-all, like I am 

16:15:02 10 superstitious, because lawyers are always superstitious, but it 

16:15:07 11 always used to worry me -- you didn't have any double-strikes. 

16:15:10 12 It always used to worry me when I had a double-strike because I 

16:15:13 13 wanted to know what I missed. You know, if they wanted to 

16:15:17 14 strike that juror, why did I strike the juror? 

16:15:20 15 So if we're ready, we'll go ahead and bring the jury 

16:15:24 16 in. And you can be seated until they get seated. 

16:17:02 17 (Open court, prospective jurors present) 

16:17:02 18 THE COURT: All right. Let the record reflect the 

16:17:05 19 jury panel is back in the room. The lawyers have struck their 

16:17:09 20 lists. I have reviewed the lists. 

16:17:12 21 Ms. Oakes, would you please read the names of the 

16:17:14 22 jurors to be impaneled. And, as your name is called, if you'll 

16:17:18 23 come forward to the court security officer here, he will direct 

16:17:22 24 you to where you're going to sit.

16:17:24 25 THE CLERK: Juror Number 2, Roxann Marie Welch; 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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16:17:28 1 Juror Number 3, Amelia Grace Nelson; 

16:17:32 2 Juror Number 4, James Joseph Ziaja; 

16:17:36 3 Juror Number 5, Jackie Lura Albright; 

16:17:38 4 Juror Number 7, Laura Storrs Meyer. 

16:17:43 5 THE COURT: Now, you-all smile as you come forward.

16:17:49 6 THE CLERK: Juror Number 13, Roger Dale Rylie; 

16:17:56 7 Juror Number 15, Laura Lee Estes; and 

16:18:02 8 Juror Number 16, Deborah Dee Lancaster.

16:18:16 9 THE COURT: Let me direct my remarks to those of you 

16:18:19 10 that are not seated as jurors. I want to thank you again for 

16:18:23 11 doing your civic duty and being present today. We could not 

16:18:28 12 get a jury that is acceptable to the lawyers and the court 

16:18:33 13 without deliberately summoning more people than we know we're 

16:18:37 14 going to use on the jury in order that we get a cross-section 

16:18:42 15 and take care of it the way we have done here today.

16:18:45 16 I know that I speak for the parties and the lawyers 

16:18:49 17 when I thank you for your time and patience here today. But at 

16:18:53 18 this time I'm going to excuse you, and you may check with the 

16:18:57 19 clerk's office for any letters you might need for employers or 

16:19:02 20 anything, and the clerk's office will contact you if you're 

16:19:05 21 needed again. 

16:19:06 22 So at this time, with the thanks of the court, you 

16:19:10 23 are excused.

16:19:40 24 (Remaining prospective jurors excused)

16:19:40 25 THE CLERK: Will the jury please stand. The lawyers 

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16:19:44 1 may be seated. And if you'll raise your right hands, 

16:19:47 2 Ms. Oakes, will you please administer the oath to the jurors.

16:19:54 3 (Jury sworn)

16:20:16 4 THE COURT: You may be seated.

16:20:18 5 I'm not going to -- I'm going to try not to keep you 

16:20:22 6 here very long with what we're going to do today because I know 

16:20:25 7 you've been here a while. I'm going to give you some 

16:20:28 8 preliminary instructions with which you need to abide, and I'm 

16:20:32 9 going to tell you a little bit about what our work schedule is 

16:20:36 10 going to be. And then I will recess you for the evening, and 

16:20:38 11 we'll start tomorrow fresh with the opening statements by the 

16:20:42 12 lawyers and begin with the evidence then.

16:20:44 13 So now that you've been sworn, as I said, I'm going 

16:20:48 14 to give you some preliminary instructions to guide your 

16:20:51 15 participation in the trial. 

16:20:53 16 It will be your duty to find from the evidence what 

16:20:56 17 the facts are. You and you alone are the judges of the facts. 

16:21:02 18 You will then have to apply to those facts to the law as the 

16:21:06 19 court will give it to you, and you must follow that law whether 

16:21:10 20 you agree with it or not. 

16:21:15 21 Nothing the court may say or do during the course of 

16:21:18 22 the trial is intended to indicate, nor should it be taken by 

16:21:21 23 you as indicating, what your verdict should be. The evidence 

16:21:25 24 from which you will find the facts will consist of, one, the 

16:21:29 25 testimony of witnesses; two, written documents and other things 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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16:21:34 1 that are received into the record as exhibits; three, any facts 

16:21:40 2 the lawyers agree or stipulate to or that the court may 

16:21:44 3 instruct you to find; and, four, any applicable presumption.

16:21:48 4 Certain things are not evidence and must not be 

16:21:53 5 considered by you, and I will list them for you now. 

16:21:57 6 Statements, arguments, and questions by lawyers are 

16:22:00 7 not evidence. 

16:22:03 8 Objections to questions are not evidence. Lawyers 

16:22:06 9 have an obligation to their client to make an objection when 

16:22:10 10 they believe the evidence being offered is improper under the 

16:22:13 11 rules of evidence. You should not be influenced by the 

16:22:17 12 objection or by the court's ruling on it. If the objection is 

16:22:24 13 sustained, ignore the question. If the objection is overruled, 

16:22:29 14 treat the answer like any other. If you are instructed that 

16:22:32 15 some item of evidence is received for a limited purpose only, 

16:22:36 16 you must follow that instruction, whatever it may be.

16:22:39 17 Testimony that the court has excluded or told you to 

16:22:44 18 disregard is not evidence and must not be considered. Anything 

16:22:50 19 that you have seen or heard outside the courtroom is not 

16:22:54 20 evidence and must be disregarded. You are to decide the case 

16:22:59 21 solely on the evidence presented here in the courtroom. 

16:23:04 22 Now, there are two kinds of evidence, direct and 

16:23:09 23 circumstantial. "Direct evidence" is direct proof of a fact, 

16:23:14 24 such as the testimony of an eyewitness. "Circumstantial 

16:23:18 25 evidence" is proof of facts from which you may infer or 

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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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16:23:21 1 conclude that other facts exist. I will give you further 

16:23:26 2 instructions on these as well as other matters at the end of 

16:23:29 3 the case, but have in mind that you may consider both kinds of 

16:23:33 4 evidence, that is, both direct and circumstantial.

16:23:37 5 It will be up to you to decide which witnesses to 

16:23:41 6 believe, which witnesses not to believe, and how much of any 

16:23:45 7 witness's testimony to accept or reject. I will give you some 

16:23:50 8 guidelines for determining the credibility of witnesses at the 

16:23:53 9 end of the case.

16:23:54 10 Now, a few words about your conduct as jurors. You 

16:24:00 11 should give careful testimony -- pardon me. You should give 

16:24:04 12 careful attention to testimony and evidence presented for your 

16:24:07 13 consideration during the trial, but you should not form or 

16:24:11 14 express any opinion about the case one way or the other until 

16:24:15 15 you have heard all of the evidence and have had the benefit of 

16:24:19 16 the closing arguments of the lawyers and my instructions on the 

16:24:24 17 applicable law.

16:24:25 18 If you would like to take notes during the trial, you 

16:24:28 19 may do so. If you do take notes, be careful not to get so 

16:24:33 20 involved in note-taking that you become distracted and miss 

16:24:37 21 part of the testimony. Your notes are to be used only as aids 

16:24:42 22 to your memory, and if your memory should later be different 

16:24:46 23 from your notes, you should rely on your memory, not on your 

16:24:51 24 notes. 

16:24:52 25 If you do not take notes, rely only on your own 

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16:24:56 1 independent memory of testimony. Do not be unduly influenced 

16:25:01 2 by the notes of other jurors. A juror's notes are not entitled 

16:25:06 3 to any greater weight than the recollection of each juror 

16:25:10 4 concerning the testimony. And we will provide you with books 

16:25:14 5 tomorrow when you come back to keep your notes in.

16:25:16 6 Although exhibits which I admit into evidence during 

16:25:20 7 the course of the trial will be available to you for your 

16:25:23 8 inspection and review during your deliberation on a verdict, 

16:25:27 9 under normal circumstances, no written transcript of the 

16:25:30 10 testimony of witnesses can be made available to you for your 

16:25:34 11 review during your deliberations. Nor under normal 

16:25:38 12 circumstances can all or any significant portion of a witness's 

16:25:43 13 testimony be read to you once you commence your deliberations. 

16:25:47 14 It is therefore very important that you pay strict attention to 

16:25:50 15 the testimony given by each witness during the trial of this 

16:25:54 16 case. 

16:25:56 17 During the course of the trial, do not speak with any 

16:26:00 18 witness or with the defendants or the plaintiffs or with any of 

16:26:04 19 the lawyers in this case. Please do not talk with them about 

16:26:08 20 any subject at all. Until you retire to deliberate, you may 

16:26:13 21 not discuss this case with anyone, even your fellow jurors, and 

16:26:17 22 you must not permit anyone to attempt to discuss it with you or 

16:26:22 23 in your presence. 

16:26:23 24 And, insofar as the lawyers are concerned as well as 

16:26:27 25 others whom you may come to recognize as having some connection 

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16:26:31 1 with the case, you are instructed that in order to avoid even 

16:26:36 2 the appearance of impropriety, you should have no conversation 

16:26:40 3 whatever with those persons while you are serving on the jury.

16:26:44 4 The Sixth Amendment to our constitution guarantees a 

16:26:50 5 trial by an impartial jury. This means that, as jurors, you 

16:26:54 6 must decide this case based solely on the evidence and law 

16:26:57 7 presented to you here in the courtroom. Until all of the 

16:27:01 8 evidence and arguments have been presented and you begin to 

16:27:04 9 deliberate, you may not discuss this case with anyone, even 

16:27:09 10 your fellow jurors.

16:27:10 11 After you start to deliberate, you may discuss the 

16:27:13 12 case, the evidence, and the law as it has been presented, but 

16:27:17 13 only with your fellow jurors and only when you are all present 

16:27:21 14 at the same time in your jury room? You cannot discuss it with 

16:27:26 15 anyone else until you have returned the verdict and the case 

16:27:29 16 has come to an end.

16:27:30 17 Now I will walk you through a few specific examples. 

16:27:35 18 First, this means that during the trial you must not conduct 

16:27:39 19 any independent research about this case or the matters, legal 

16:27:45 20 issues, individuals, or other entities involved in this case. 

16:27:50 21 Just as you must not search or review any traditional sources 

16:27:54 22 of information about this case, such as dictionaries, reference 

16:27:58 23 materials, or television, news, or entertainment programs, you 

16:28:02 24 must not search the Internet or any other electronic resources 

16:28:06 25 for information about this case or the witnesses or the parties 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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16:28:10 1 involved in it. The bottom line for the important work you 

16:28:14 2 will be doing is that you must base your verdict solely on the 

16:28:18 3 evidence presented in the courtroom and my instructions on the 

16:28:22 4 law. 

16:28:24 5 Second, this means that you must not communicate 

16:28:27 6 about the case with anyone, including your family and friends, 

16:28:31 7 until deliberations when you will discuss the case only with 

16:28:35 8 other jurors. During deliberations you must not communicate 

16:28:40 9 about the case with anyone else. 

16:28:43 10 Most of us use smart phones, tablets, or computers in 

16:28:47 11 our daily lives to access the Internet for information and to 

16:28:52 12 participate in social media platforms. To remain impartial 

16:28:56 13 jurors, however, you must not communicate with anyone about 

16:28:59 14 this case, whether in person, in writing, or through e-mail, 

16:29:04 15 text messaging, blogs, or social media websites and apps like 

16:29:09 16 Twitter, Facebook, Instagram, LinkedIn, Youtube, WhatsApp, 

16:29:15 17 GroupMe, Snapchat, TikTok and the like. 

16:29:18 18 Please note that these restrictions are about all 

16:29:22 19 kinds of communication about the case, even those which are not 

16:29:26 20 directed at any particular person or group. Communication like 

16:29:32 21 blog posts or Tweets can be shared to an ever-expanding circle 

16:29:36 22 of people and can have an unexpected impact on the trial. For 

16:29:43 23 example, a post you might make to your social media account 

16:29:46 24 might be viewable by a witness who is not supposed to know what 

16:29:50 25 has happened in the courtroom before he or she has testified. 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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16:29:55 1 For these reasons you must inform me immediately if 

16:29:57 2 you learn about or share any information about the case outside 

16:30:02 3 the courtroom, even by accident, or if you discover that 

16:30:07 4 another juror has done so.

16:30:08 5 Finally a word about an even newer challenge for 

16:30:13 6 trials such as this one. Persons, entities, and even foreign 

16:30:18 7 governments may seek to manipulate your opinions or your 

16:30:21 8 impartiality during deliberations using the communications I 

16:30:25 9 have already discussed or using fake social media accounts, but 

16:30:33 10 these misinformation efforts might also be undertaken through 

16:30:36 11 targeted advertising online or on social media. 

16:30:41 12 Many of the tools you use to access e-mail, social 

16:30:44 13 media, and the Internet display third-party notifications 

16:30:49 14 pop-ups, or ads while you're using them. These communications 

16:30:52 15 may be intended to persuade you or your community on an issue 

16:30:57 16 that can influence you in your service as juror on this case. 

16:31:01 17 For example, while accessing your e-mail, social 

16:31:05 18 media, or the Internet, through no fault of your own you might 

16:31:09 19 see pop-ups containing information about this case or the 

16:31:12 20 matters, legal principles, individuals, or other entities in 

16:31:17 21 this case. Please be aware of this possibility, ignore any 

16:31:23 22 pop-ups or ads that might be relevant to what we are doing 

16:31:26 23 here, and certainly do not click through to learn more about 

16:31:29 24 these notifications if this happens -- pardon me -- about these 

16:31:37 25 notifications or ads if they appear. If this happens, please 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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16:31:40 1 let me know. 

16:31:41 2 This is a recurring problem in courts. We have been 

16:31:44 3 very fortunate in Austin that we have not had a problem with 

16:31:48 4 it. What happens is, if you attempt to investigate anything 

16:31:52 5 about this case or anything electronically and it comes to the 

16:31:58 6 attention of the parties or the court, that means we will have 

16:32:01 7 wasted all our time in the trial up to that point, as I will 

16:32:05 8 have to dismiss you and we will have to start the case totally 

16:32:08 9 over again and select a new jury. 

16:32:11 10 So please take me at my word, while you're serving on 

16:32:14 11 this jury, it is really important, and it is important to these 

16:32:18 12 parties' rights, that you decide this case based solely on the 

16:32:23 13 evidence and my instructions on the law. And at the beginning 

16:32:27 14 of each day I may ask you whether you have learned or shared 

16:32:31 15 any information outside this courtroom. I like to let the jury 

16:32:34 16 know in advance that I may be doing that so you're prepared for 

16:32:38 17 the question. But it is just better if you just have 

16:32:43 18 everything shut down with regard to this case while you're 

16:32:46 19 involved in it. 

16:32:47 20 I hope that for all of you this case is interesting 

16:32:50 21 and noteworthy. From time to time during the trial, I may be 

16:32:55 22 called upon to make rulings on law -- rulings of law on motions 

16:33:00 23 or objections made by the lawyers. You should not infer or 

16:33:04 24 conclude from any ruling I may make that I have any opinions on 

16:33:08 25 the merits of the case favoring one side or the other. 

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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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16:33:12 1 And if I sustain an objection to a question that goes 

16:33:15 2 unanswered by the witness, you should not speculate on what 

16:33:19 3 answer might have been given, nor should you draw any 

16:33:22 4 inferences or conclusions from the question itself. 

16:33:27 5 During the trial it may be necessary for me to confer 

16:33:31 6 with the lawyers from time to time out of your hearing 

16:33:34 7 concerning questions of law or procedure that require 

16:33:39 8 consideration by the court alone. On some occasions you may be 

16:33:42 9 excused from the courtroom as a convenience to you and to us 

16:33:47 10 while I discuss such matters with the lawyers. 

16:33:50 11 We will try to limit such interruptions as much as 

16:33:53 12 possible, but you should remember at all times the importance 

16:33:57 13 of the matter you are here to determine and should be patient 

16:34:01 14 even though the case may seem to go slowly. 

16:34:05 15 As I indicated earlier, the trial will begin tomorrow 

16:34:08 16 morning at nine o'clock. The lawyers for each side will be 

16:34:12 17 given an opportunity to make opening statements in which they 

16:34:16 18 may explain the issues in the case and summarize the facts they 

16:34:20 19 expect the evidence will show. 

16:34:23 20 First the lawyer for Voxer, Inc. and Voxer IP, LLC 

16:34:27 21 will make an opening statement, which, again, is simply an 

16:34:32 22 outline to help you understand the evidence that the Voxer 

16:34:36 23 lawyers expect to introduce. 

16:34:38 24 Next the attorneys for Facebook, or Meta Platforms, 

16:34:42 25 and Instagram will make an opening statement. 

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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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16:34:46 1 Voxer will then present witnesses, and the lawyer for 

16:34:49 2 Meta Platforms and Instagram may cross-examine them. 

16:34:52 3 Following Voxer's case, Meta may present witnesses, 

16:34:57 4 and counsel for Voxer will have the opportunity to 

16:35:01 5 cross-examine them. 

16:35:02 6 Subsequently, rebuttal witnesses may be presented. 

16:35:06 7 After all of the testimony and evidence has been 

16:35:09 8 presented, the lawyers will then be given another opportunity 

16:35:12 9 to address you and to make their summations or final arguments 

16:35:17 10 in this case. 

16:35:18 11 The statements that the lawyers make at the beginning 

16:35:21 12 of the case, as well as the arguments they present at the end 

16:35:25 13 of trial, are not to be considered by you either as evidence, 

16:35:29 14 which comes only from the witnesses and exhibits, or as your 

16:35:34 15 instruction on the law, which will come only from me. 

16:35:38 16 Nevertheless, these statements and arguments are intended to 

16:35:42 17 help you understand the issues and the evidence as it comes in, 

16:35:45 18 as well as the positions taken by both sides.

16:35:52 19 Now, a little bit about what our order of work will 

16:35:55 20 be. We will commence every morning at nine o'clock, so I ask 

16:35:59 21 you to be in your jury room a little before nine o'clock so we 

16:36:04 22 can start at 9:00. The court security officer will show you 

16:36:07 23 where your jury room is and explain to you how to get there.

16:36:11 24 We will go until noon or as close to noon as there is 

16:36:16 25 a convenient stopping point in the evidence each day. It may 

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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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16:36:19 1 be a little before, a little later. We will endeavor to get 

16:36:24 2 back by 1:30 and commence our afternoon sessions at 1:30, and 

16:36:28 3 we will go until 5:00 or as close to 5:00 as there is a 

16:36:33 4 convenient stopping point in the evidence. It may be a little 

16:36:37 5 earlier, it maybe a little later.

16:36:38 6 We will take a midmorning break about 10:30 and a 

16:36:44 7 midafternoon break about 3:15 or 3:30. I will not keep you 

16:36:49 8 seated in the jury box any longer than two hours at a stretch, 

16:36:55 9 so plan on that so we don't have undue interruptions. So 

16:36:59 10 that's the way we will do it. 

16:37:03 11 There will be things that come up which will affect 

16:37:06 12 that schedule. Austin has grown a lot as you've noticed in the 

16:37:12 13 last years. The last time we got a new judicial position in 

16:37:16 14 Austin was 1991. That's 31 years ago. We do not have enough 

16:37:21 15 federal judges in Austin. We only have two. Our docket is 

16:37:25 16 extremely large. The rest of it doesn't stop while I'm trying 

16:37:29 17 a case, so there may be times that it will seem a little 

16:37:33 18 disjointed because there will be something that I absolutely 

16:37:36 19 have to take up.

16:37:36 20 I try to do that over the noon hour or in the evening 

16:37:41 21 or afternoon recesses so I don't inconvenience you too much, 

16:37:45 22 but bear in mind it's an inconvenience on the lawyers and 

16:37:49 23 everybody, but the rest of the business of the court doesn't 

16:37:52 24 stop because I'm trying a case.

16:37:54 25 I can tell you on Wednesday we're going to have a 

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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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16:37:58 1 longer noon hour just so you can plan accordingly. We're 

16:38:03 2 probably going to recess about 11:15 and probably be back about 

16:38:06 3 two o'clock because of a matter of long standing that I've 

16:38:11 4 previously committed to.

16:38:12 5 But I will generally always be able to let you know 

16:38:16 6 what we're doing ahead of time. Again, we will try to be back 

16:38:22 7 on every other day by 1:30 so we can make this move along 

16:38:26 8 pretty quickly. But keep in mind there will be some 

16:38:31 9 interruptions, and you will get a longer noon hour on Wednesday 

16:38:34 10 because I already know that.

16:38:35 11 Now, you will be given notebooks, the contents of 

16:38:43 12 which I have worked out with the lawyers, that will contain 

16:38:48 13 some things such as the patents you're going to hear a lot 

16:38:52 14 about, such as the claims that are asserted in the patents. So 

16:38:57 15 you'll have those to look at and follow along. And a list of 

16:39:01 16 the questions that you're going to be asked to answer at the 

16:39:04 17 end of the trial so you'll have some idea of where you're going 

16:39:08 18 with this. Don't get consumed by the notebooks. It's just 

16:39:11 19 there to help you, but listen to the evidence and then listen 

16:39:17 20 to my charge. But it just goes a little more smoothly if you 

16:39:23 21 have some idea of where we're headed.

16:39:25 22 The lawyers are going to assist you with that first 

16:39:28 23 with their opening statements and then as we proceed during 

16:39:31 24 trial. But bear that in mind.

16:39:34 25 Now, we're about to take our first break during the 

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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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16:39:37 1 trial, and I want to remind you of the instructions that I've 

16:39:40 2 just given you. I'll give them to you in abbreviated form. 

16:39:45 3 Until the trial is over, you are not to discuss this 

16:39:47 4 case with anyone, including your fellow jurors, members of your 

16:39:51 5 family, or people involved in the trial or anyone else. If 

16:39:58 6 anyone approaches you and tries to talk to you about the case, 

16:40:01 7 do not tell your fellow jurors but advise me about it 

16:40:04 8 immediately. 

16:40:05 9 Do not read or listen to any news reports of the 

16:40:08 10 trial. Finally, remember to keep an open mind until all of the 

16:40:11 11 evidence has been received and you have heard the views of your 

16:40:14 12 fellow jurors. And do not attempt to find out anything about 

16:40:22 13 this case or any of the issues in it through the use of any 

16:40:24 14 electronic device, and do not transmit any information about 

16:40:28 15 this case through any electronic device.

16:40:30 16 Now, the gentleman over here to your left, my right, 

16:40:35 17 is your court security officer. You will get to know him 

16:40:38 18 throughout the trial. As I said, he will assist you with how 

16:40:42 19 to get in and out of the jury room. He looks like a really 

16:40:46 20 nice man. Believe me, he is not. I have instructed him that 

16:40:49 21 if he sees any of you using any electronic device, he is to 

16:40:53 22 take it from you, throw it to the floor, and smash it into 

16:40:56 23 little bits while you watch. So this will just go much more 

16:41:00 24 smoothly if you take me at my word and don't try to find out 

16:41:03 25 anything about this case. But if you need to speak with me 

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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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16:41:11 1 about anything, simply give a signed note to him to give to me, 

16:41:15 2 and then we will take that up from there. 

16:41:17 3 Now, I may not repeat these things to you before 

16:41:20 4 every break we take, but keep them in mind throughout the 

16:41:23 5 trial.

16:41:23 6 So at this time you will be in recess until 

16:41:26 7 nine o'clock in the morning. Please remember all of these 

16:41:30 8 instructions that I have given you. Please be back in your 

16:41:33 9 jury room a little bit before nine o'clock so we can start. So 

16:41:37 10 at this time you are recessed.

16:41:38 11 (Jury recessed) 

16:42:25 12 THE COURT: You may be seated. Couple of things for 

16:42:28 13 tomorrow. I have looked over what you have provided to go in 

16:42:33 14 the juror notebooks. I don't have a problem with it other than 

16:42:37 15 the fact I think I'm not going to submit them the instructions 

16:42:42 16 in the notebooks because they look a little daunting, and I 

16:42:45 17 have -- and I don't think I have a problem with giving them to 

16:42:49 18 the jury at the end. But I'm afraid they'll become consumed 

16:42:53 19 with them and spend more time on the notebooks than they will 

16:42:56 20 be listening to your case. So I'm going to include everything 

16:42:59 21 else, including the verdict form we've discussed, unless 

16:43:03 22 someone has a major objection to my scaling it down that way? 

16:43:06 23 MR. POWELL: Your Honor, I have just one question. 

16:43:08 24 Would I be able -- would we be able to refer to the jury 

16:43:11 25 instructions since we've agreed to them during the trial 

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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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16:43:14 1 proceedings? 

16:43:14 2 THE COURT: Any problem over here? 

16:43:17 3 MR. VAN NEST: No. Of course not.

16:43:17 4 THE COURT: Then you may. As long as they're agreed 

16:43:19 5 to, I don't have any problem with any of that.

16:43:21 6 MR. POWELL: Thank you, Your Honor.

16:43:22 7 THE COURT: All right. Any questions you-all may 

16:43:24 8 have about anything we need to take up before we come back in 

16:43:27 9 the morning? 

16:43:27 10 MR. POWELL: The plaintiff does have one matter, 

16:43:29 11 Your Honor.

16:43:29 12 THE COURT: All right.

16:43:30 13 MR. POWELL: And I'm sorry. I'd hoped we'd make it 

16:43:32 14 to tomorrow before we had to do this, but the plaintiff does 

16:43:35 15 believe the door has been opened, although this time it was the 

16:43:38 16 back door, by baiting the jury with the issues we addressed on 

16:43:42 17 the MIL 3. You heard them talk about Facebook not a good 

16:43:46 18 corporate citizen. You heard them talk about competitor 

16:43:49 19 treated unfairly. Those are the issues that the evidence 

16:43:53 20 that's being excluded addresses. 

16:43:55 21 We would like leave to file a brief, Your Honor. I 

16:43:57 22 have it with me today. I can provide a copy to the other side. 

16:44:00 23 We'd ask the Court to reconsider its motion -- its ruling so 

16:44:04 24 that we can actually address this in openings. We understand 

16:44:08 25 if it does not happen in openings, we would like the 

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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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16:44:10 1 opportunity to present the evidence during Mr. Katis's direct 

16:44:13 2 examination tomorrow. He lived it. He should be able to 

16:44:17 3 testify about it.

16:44:18 4 THE COURT: Let me hear from the defendant.

16:44:21 5 MR. VAN NEST: Your Honor, I didn't hear anything in 

16:44:23 6 the voir dire that was out of the ordinary. We had the 

16:44:26 7 obligation to examine jurors as to their biases and so on and 

16:44:31 8 so forth. No one was arguing. No one was presenting any 

16:44:33 9 evidence. So I don't think the ruling should change. There's 

16:44:35 10 no basis for that. There hasn't been any evidence, hasn't even 

16:44:38 11 been one word of opening statement.

16:44:41 12 MR. POWELL: Your Honor, our position would be that 

16:44:43 13 the jurors are now looking for that evidence. And if we don't 

16:44:45 14 give it to them, we suffer.

16:44:47 15 THE COURT: Well, I don't think they're looking for 

16:44:49 16 it. We're not going to take it up in opening statements. If 

16:44:53 17 you want to file a short brief with the copy to the other side, 

16:44:57 18 I'm going to allow them to respond to it. I will look at this 

16:45:01 19 again.

16:45:03 20 MR. POWELL: Thank you, Your Honor. I appreciate it. 

16:45:04 21 I'll hand up a copy. I would like to note for the record there 

16:45:07 22 is Facebook confidential material. This is not a redacted 

16:45:11 23 version. It is unredacted. We will file electronically, 

16:45:15 24 appropriately, a redacted version this evening.

16:45:17 25 THE COURT: All right. That doesn't look very short 

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16:45:23 1 to me.

16:45:24 2 MR. POWELL: It's actually exhibits so you can see 

16:45:25 3 all of the evidence, Your Honor.

16:45:26 4 THE COURT: Yeah. But I'm supposed to read the 

16:45:27 5 exhibits. That factors into my definition of shortness.

16:45:32 6 MR. POWELL: The brief I think is 10 pages.

16:45:34 7 THE COURT: Well, that's not very short either.

16:45:37 8 MR. POWELL: Maybe you and I have different 

16:45:39 9 definition of short, Your Honor. I apologize.

16:45:41 10 THE COURT: I have changed my perspective of short 

16:45:43 11 since I moved around to this side of the bench. I will admit 

16:45:46 12 that to you. And how long does the defendant need to respond? 

16:45:52 13 MR. VAN NEST: He just handed this tonight, 

16:45:55 14 Your Honor. I'm sure we can respond in two days.

16:45:56 15 THE COURT: Well, we'll take that back up in the 

16:45:58 16 morning and, I mean, how long you really need. We'll talk 

16:46:02 17 about that. Read this over.

16:46:04 18 MR. VAN NEST: Fine. Thank you.

16:46:05 19 THE COURT: Then we'll see where we are, and we'll do 

16:46:06 20 that in the morning. 

16:46:07 21 But it's out for opening statement, and if I need to 

16:46:10 22 adjust witnesses if I change my previous ruling, we'll adjust 

16:46:13 23 the witnesses and make it work.

16:46:16 24 MR. POWELL: Thank you, Your Honor.

16:46:16 25 THE COURT: Anything else we need to take up while I 

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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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16:46:18 1 have you-all? 

16:46:19 2 MR. VAN NEST: Not for Defendants, Your Honor.

16:46:21 3 MR. POWELL: Nothing else for the plaintiffs, 

16:46:22 4 Your Honor.

16:46:22 5 THE COURT: All right. Well, I appreciate the way 

16:46:24 6 this afternoon went. I thought it went smoothly. I'm looking 

16:46:27 7 forward to trying this case with you. So we are in recess 

16:46:32 8 until nine o'clock in the morning. 

16:46:34 9 If you need to get with me, you need to let my court 

16:46:40 10 staff know, either Ms. Oakes or Ms. Baffes -- 

16:46:43 11 I think you have their e-mail addresses. 

16:46:45 12 MR. VAN NEST: We do, Your Honor.

16:46:46 13 THE COURT: -- in time for me to be here. Try not to 

16:46:48 14 wait until 7:30 to tell me you have something you want to take 

16:46:52 15 up before nine o'clock.

16:46:54 16 MR. POWELL: Understood, Your Honor.

16:46:55 17 THE COURT: But I think we can go through this pretty 

16:46:58 18 smoothly without any problems.

16:47:01 19 So, with that having been said, I look forward to 

16:47:05 20 working with you, and we'll be in recess until nine o'clock in 

16:47:08 21 the morning.

16:47:09 22 (End of transcript) 

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ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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 1 UNITED STATES DISTRICT COURT )

 2 WESTERN DISTRICT OF TEXAS )

 3 I, Arlinda Rodriguez, Official Court Reporter, United 

 4 States District Court, Western District of Texas, do certify 

 5 that the foregoing is a correct transcript from the record of 

 6 proceedings in the above-entitled matter.

 7 I certify that the transcript fees and format comply with 

 8 those prescribed by the Court and Judicial Conference of the 

 9 United States. 

 10 WITNESS MY OFFICIAL HAND this the 17th day of 

 11 September 2022.

 12

 13 /S/ Arlinda Rodriguez

Arlinda Rodriguez, Texas CSR 7753

 14 Expiration Date: 10/31/2023

Official Court Reporter

 15 United States District Court

Austin Division

 16 501 West 5th Street, Suite 4152

Austin, Texas 78701

 17 (512) 391-8791

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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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