Page 1 – DECLARATION IN SUPPORT OF SUPPLEMENTAL BRIEFING 

IN SUPPORT OF DEFENDANTS PROPOSED JURY INSTRUCTIONS AND 

VERDICT FORM

Page 1 – UPM-L1\00701969.000

TOMASI BRAGAR DUBAY

121 SW Morrison Street, Suite 1850 

Portland, Oregon 97204

Telephone: (503) 894-9900

Facsimile: (971) 544-7236

Kathryn P. Salyer, OSB #883017

Eleanor A. DuBay, OSB #073755

Blake Van Zile, OSB #184672

ksalyer@tomasilegal.com

edubay@tomasilegal.com

bvanzile@tomasilegal.com

Tomasi Bragar DuBay

121 SW Morrison Street, Suite 1850

Portland, Oregon 97204-3136

Telephone: (503) 894-9900

Facsimile: (971) 544-7236

Christopher W. Savage, D.C. Bar #362657

Katherine Sheriff, D.C. Bar #1632141

chrissavage@dwt.com

katherinesheriff@dwt.com

(Admitted Pro Hac Vice)

Davis Wright Tremaine LLP

1301 K Street NW, Suite 500 East

Washington, DC 20005-3317

Telephone: (202) 973-4200

Facsimile: (202) 973-4499

Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

UNIGESTION HOLDING, S.A., a foreign 

corporation, d/b/a DIGICEL HAITI,

Plaintiff & Counterclaim-Defendant,

v.

UPM TECHNOLOGY, INC., et al.,

Defendants & Counterclaim-Plaintiffs

Case No. 3:15-CV-00185-SI

DECLARATION OF CHRISTOPHER W. 

SAVAGE IN SUPPORT OF

SUPPLEMENTAL BRIEFING IN 

SUPPORT OF DEFENDANTS' PROPOSED 

JURY INSTRUCTIONS AND VERDICT 

FORM

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 1 of 77
Page 2 – DECLARATION IN SUPPORT OF SUPPLEMENTAL BRIEFING 

IN SUPPORT OF DEFENDANTS PROPOSED JURY INSTRUCTIONS AND 

VERDICT FORM

Page 2 – UPM-L1\00701969.000

TOMASI BRAGAR DUBAY

121 SW Morrison Street, Suite 1850 

Portland, Oregon 97204

Telephone: (503) 894-9900

Facsimile: (971) 544-7236

I, Christopher W. Savage, declare under penalty of perjury:

1. I am an attorney at Davis Wright Tremaine LLP. I am one of the attorneys 

representing the defendants in the above-captioned action. I make this declaration based on 

personal knowledge and my review of the records and files in this proceeding and public records 

referenced herein. I am competent to testify if called to do so.

2. I make this declaration in support of Supplemental Briefing in Support of 

Defendants' Proposed Jury Instructions and Verdict Form. 

3. Attached hereto as Exhibit 1 is a true and correct copy of Defendants' 

proposed redline revisions to the Court's draft Preliminary Jury Instructions dated October 29, 

2022. A Microsoft Word version with Defendant's proposed revisions in "track changes" is being 

submitted directly to the Court contemporaneously herewith. 

4. Attached hereto as Exhibit 2 is a true and correct copy of Defendants' 

proposed redline revisions to the Court's draft Final Jury Instructions dated October 29, 2022. A 

Microsoft Word version with Defendant's proposed revisions in "track changes" is being submitted 

directly to the Court contemporaneously herewith. 

5. Attached hereto as Exhibit 3 is a true and correct copy of Defendants' 

proposed redline revisions to the Court's draft Verdict Form dated October 29, 2022. A Microsoft 

Word version with Defendant's proposed revisions in "track changes" is being submitted directly 

to the Court contemporaneously herewith. 

I HEREBY DECLARE THAT THE ABOVE STATEMENT IS TRUE TO THE 

BEST OF MY KNOWLEDGE AND BELIEF, AND THAT I UNDERSTAND IT IS MADE FOR 

USE AS EVIDENCE IN COURT AND IS SUBJECT TO PENALTY FOR PERJURY.

Dated: November 11, 2022.

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 2 of 77
Page 3 – DECLARATION IN SUPPORT OF SUPPLEMENTAL BRIEFING 

IN SUPPORT OF DEFENDANTS PROPOSED JURY INSTRUCTIONS AND 

VERDICT FORM

Page 3 – UPM-L1\00701969.000

TOMASI BRAGAR DUBAY

121 SW Morrison Street, Suite 1850 

Portland, Oregon 97204

Telephone: (503) 894-9900

Facsimile: (971) 544-7236

By:_______________________________

Christopher W. Savage

Portland, OR 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 3 of 77
Page 1 of 1 – CERTIFICATE OF SERVICE

UPM-L1\00696834.000

TOMASI BRAGAR DUBAY

121 SW Morrison Street, Suite 1850 

Portland, Oregon 97204

Telephone: (503) 894-9900

Facsimile: (971) 544-7236

CERTIFICATE OF SERVICE

I hereby certify that on November 11, 2022, I served the foregoing 

DECLARATION OF CHRISTOPHER W. SAVAGE IN SUPPORT OF SUPPLEMENTAL 

BRIEFING IN SUPPORT OF DEFENDANTS' PROPOSED JURY INSTRUCTIONS AND 

VERDICT FORM on the following individuals by electronic service to said individuals:

Robert C.L. Vaughan 

Cherine Smith Valbrun

Leah Storie

Anisha Carla Atchanah

Kim Vaughan Lerner LLP

One Financial Plaza

100 SE Third Avenue • Suite 2001

Fort Lauderdale, FL 33394

Email: rvaughan@kvllaw.com

Email: cvalbrun@kvllaw.com

Email: lstorie@kvllaw.com

Email: aatchanah@kvllaw.com

Anne M. Talcott

Kathryn E. Kelly

Andrew J. Lee

Schwabe, Williamson & Wyatt, PC

Pacwest Center

1211 SW 5th Ave., Suite 1900

Portland, OR 97204

Email: atalcott@schwabe.com

Email: kkelly@schwabe.com

Email: ajlee@schwabe.com

Kent D. Bressie

HWG LLP

1919 M Street N.W., Suite 800

Washington, D.C. 20036

Email: kbressie@hwglaw.com

Dated: November 11, 2022.

TOMASI BRAGAR DUBAY

By: /s/ Eleanor A. DuBay

Kathryn P. Salyer, OSB #883017

Eleanor A. DuBay, OSB #073755

Blake Van Zile, OSB #184672

ksalyer@tomasilegal.com

edubay@tomasilegal.com

bvanzile@tomasilegal.com

Telephone: (503) 894-9900

DAVIS WRIGHT TREMAINE LLP

By: /s/ Christopher W. Savage

Christopher W. Savage, D.C. Bar #362657

chrissavage@dwt.com

Katherine Sheriff, D.C. Bar #1632141

katherinesheriff@dwt.com

(Admitted Pro Hac Vice)

Telephone: (202) 973-4200

Of Attorneys for Defendants

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 4 of 77
Draft Dated: October 29, 2022 (Not filed in CM/ECF)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

UNIGESTION HOLDING, S.A.,

d/b/a DIGICEL-HAITI,

Plaintiff,

v.

UPM TECHNOLOGY, INC. and

DUY BRUCE TRAN,

Defendants.

Case No. 3:15-cv-185-SI

PRELIMINARY JURY

INSTRUCTIONS

Exhibit 1 

Page 1 of 27 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 5 of 77
Members of the Jury: You are now the jury in this case. It is my duty to 

instruct you on the law.

It is your duty to find the facts from all the evidence in the case. To those 

facts you will apply the law as I give it to you. You must follow the law as I give 

it to you whether you agree with it or not. You must decide the case solely on the 

evidence and the law before you. You have taken an oath to do so.

Perform these duties fairly and impartially. You should not be influenced by 

any person’s race, color, ethnicity, religious beliefs, national ancestry, sexual 

orientation, gender identity, gender, or economic circumstances. Also, do not 

allow yourself to be influenced by personal likes or dislikes, sympathy, prejudice, 

fear, public opinion, or biases.

At the end of the trial, I will give you a set of written final instructions.

Those final instructions are what will govern your duties.

Please do not read into these instructions, or anything I may say or do, that I 

have an opinion regarding the evidence or what your verdict should be.

When you deliberate at the end of the trial, it will be your duty to weigh and 

evaluate all the evidence received in this trial and, in that process, to decide the 

facts. To the facts as you find them, you will apply the law as I give it to you. You 

must follow the law as I give it to you, whether you agree with it or not. You will 

recall that you have taken an oath to do so. In following my instructions, you must

Exhibit 1 

Page 2 of 27 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 6 of 77
follow all of them and not single out some and ignore others; they are all 

important. You must decide the case solely on the evidence and the law before 

you. You must not be influenced by any personal likes or dislikes, opinions, 

prejudices, sympathy, or biases.

Let me now talk a little more about biases.

As we previously discussed during the jury selection process this morning, 

we all have feelings, assumptions, perceptions, fears, and stereotypes about others. 

Some biases we are aware of. Others, we might not be fully aware of, which is 

why they are called unconscious, or implicit, biases. No matter how unbiased we 

may think we are, are brains are hard-wired to make certain unconscious 

decisions. We look at others and filter what they say through our own personal 

experiences and background. Because we all do this, we often see life in a way 

that tends to favor people who are like ourselves, or who have had life experiences 

like our own.

Biases can affect our thoughts, how we remember what we see and hear, who be 

believe or disbelieve, and how we make important decisions.

As jurors, you are being asked to make important decisions. You must, first, 

take the time you need to reflect carefully and thoughtfully about the evidence.

Second, you need to think about why you are making the decision you are 

making and examine it for bias. Reconsider your first impressions of people and 

the evidence in this case. If the people involved in this case were from different

Exhibit 1 

Page 3 of 27 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 7 of 77
backgrounds, for example, richer or poorer, more or less educated, old or 

younger, or of a different gender, gender identity, sexual orientation, race, 

ethnicity, or religion, would you still view them, and the evidence, the same 

way?

Third, listen to one another. You must carefully evaluate the evidence and 

resist, and help each other to resist, any urge to reach a verdict influenced by bias 

for or against any party or witness. You all have different backgrounds and will 

be viewing this case based on your own insights, assumptions, and biases. 

Listening to different perspectives may help you better identify the possible 

effects that hidden, or unconscious, biases, may have on decision-making.

And fourth, resist jumping to conclusions based on personal likes or 

dislikes, generalizations, gut feelings, prejudices, sympathies, stereotypes, or 

unconscious biases.

The law demands that you make a fair decision based solely on the 

evidence received at trial, your individual evaluation of that evidence, your 

reasoning, your common sense, and the law that I give to you in my instructions.

When you go into the jury room to deliberate at the end of the trial, you 

will be asked to decide the case. But you not only will have to vote “yes” or “no” 

on certain verdict questions and, depending on your answers, possibly make other 

decisions. To do your duty as jurors, you will also have to explain to your fellow 

jurors what evidence you believe supports your decision to vote a certain way. I

Exhibit 1 

Page 4 of 27 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 8 of 77
tell you this now because research has shown that jurors who understand they will 

be accountable to their fellow jurors for their vote follow the evidence more 

closely and are more engaged in jury deliberations. Our legal system wants you to 

pay attention and to engage fully in jury deliberations because jurors who do these 

things help make sure the trial reaches a just and fair result under the law. Thus, 

we ask jurors to pay attention during the trial and participate with their fellow 

jurors during deliberations.

Overview of the Case

Now that you have been selected to be the jurors in this case, I am going to 

repeat what I said during jury selection, describing what this dispute is about. I 

am doing this to help you follow the evidence that soon will be presented by the 

parties. I will give you a summary of the positions of the parties and will 

describe the Plaintiff’s claim, which the Defendants deny. The Plaintiff has the 

burden of proving its claim. Please do not draw any conclusions from what I am 

saying. You will need to decide the facts based on the evidence that will be 

presented at trial.

As a mentioned earlier today during the jury selection process, this is a civil 

lawsuit. It is not a criminal case. In a civil trial, the plaintiff seeks money damages 

from the defendants.

Also as I previously said, the plaintiff in this case is a company called 

“Unigestion Holding, S.A.,” also known as “Digicel-Haiti.” I will refer to the

Exhibit 1 

Page 5 of 27 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 9 of 77
plaintiff mostly as “Digicel-Haiti,” but both “Unigestion” and “Digicel-Haiti” 

refer to the same company. Digicel-Haiti owns and operates a wireless 

telecommunications network in the country of Haiti, located in the Caribbean.

There are two defendants in this case: one company and one individual. The 

company defendant is “UPM Technology, Inc.” or “UPM” for short. UPM also 

has been known as “UPM Telecom, Inc.” and “UPM Marketing, Inc.,” but those 

names all refer to the same company, which for simplicity I will just refer as 

“UPM.” The individual defendant is Mr. Duy Bruce Tran. UPM is a 

telecommunications company based in the greater Portland area, specifically 

Hillsboro. Mr. Tran is UPM’s founder and Chief Executive Officer.

Digicel-Haiti’s claims arise out of the law of fraud, specifically what the 

law calls “fraud by active concealment.” In general, it is more expensive to place 

an international call from the United States to Haiti than it is to place a local call 

within Haiti, even when both calls end (or terminate) with a customer in Haiti on 

Digicel-Haiti’s wireless network. Digicel-Haiti charges at least $0.23 (23 cents) 

per minute for international calls from the United States to Haiti and 

approximately

$0.09 (9 cents) per minute for local calls within Haiti. In the telecommunications 

industry, making a phone call is also referred to as “terminating” a call.

In this lawsuit, the Plaintiff, Digicel-Haiti, alleges that the Defendants, 

UPM and its founder and chief executive Mr. Tran, terminated international calls 

Exhibit 1 

Page 6 of 27 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 10 of 77
on Digicel-Haiti’s network without paying the Digicel-Haiti rate for terminating 

international calls. Digicel-Haiti alleges that UPM accomplished this by 

fraudulently concealing its activities.

According to Digicel-Haiti, UPM did this in one of two ways. In other 

words, Digicel-Haiti alleges two different ways that UPM circumvented DigicelHaiti’s international pricing. Digicel-Haiti calls these two methods “traditional 

bypass” and “Roam Like You Are Home bypass,” or “RLYH bypass.” UPM uses 

the labels “in-country bypass” for the first way and simply “Roam Like You Are 

Home service,” or just “RLYH,” for the second way. The Defendants say that 

their RLYH activities are not a type of bypass at all. To be neutral, I will 

sometimes switch between the two sets of names or use both. I will call the first 

way “traditional bypass” or “in-country bypass;,” and they refer to the same thing. 

I will call the second way “Roam Like You Are Home bypass” or simply “Roam 

Like You Are Home,” and they refer to the same thing.

Before I get into the differences between traditional bypass and RLYH 

bypass, let me describe their similarities. For both methods, Digicel-Haiti alleges 

that UPM used a combination of telecommunications technology and the Internet 

to “bypass” Digicel-Haiti’s international rate. UPM allegedly did this by acquiring 

Digicel-Haiti’s SIM cards. SIM, spelled S-I-M, stands for “Subscriber Identity 

Module.” SIM cards are small computer chips often put in cell phones that allow a

Exhibit 1 

Page 7 of 27 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 11 of 77
cellular device to access a cellular network. For example, if a phone has a DigicelHaiti SIM card, then the Digicel-Haiti cellular network could recognize that phone 

and card as valid and give it access to Digicel-Haiti’s wireless network in Haiti.

UPM used prepaid Digicel-Haiti SIM cards to access its wireless network. This 

means that UPM’s calls would go through to Haiti only if the SIM card’s account 

had enough money to make the call. When an account’s money ran out, a call 

could disconnect, even if the SIM card was valid.

Now, I will describe the differences between in-country bypass and RLYH 

service. When a call originates in the United States and terminates in Haiti through 

Digicel-Haiti’s network, it usually goes through one of Digicel-Haiti’s two

“international switches” located in the United States. These switches let DigicelHaiti recognize that an international call is coming through and charge $0.23 per 

minute for those calls.

For traditional or in-country bypass, UPM arranged for calls coming from 

the United States to avoid Digicel-Haiti’s international switches. Instead, UPM 

used computer servers in Oregon that connected calls over the Internet to UPM’s 

Gateway devices in Haiti. This use of the Internet is sometimes known as “Voice 

over Internet Protocol,” or VoIP. When UPM sends a call to Haiti over the 

Internet, the call arrives in Haiti at a device called a “Gateway.” Gateways are like 

to wireless radios. They transmit calls received in Haiti over the Internet from

UPM’s servers in the United States directly to Digicel-Haiti’s local cellular 

Exhibit 1 

Page 8 of 27 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 12 of 77
network. Gateways can make multiple calls at the same time.

Because UPM used these Gateways rather than Digicel-Haiti’s international 

switches, Digicel-Haiti did not charge the international rate of 23 cents per minute. 

Instead, Digicel-Haiti registered these types of calls sent by UPM as local calls 

made entirely with Haiti, and charged them the local rate of about 9 cents per 

minute.

RLYH, or RLYH bypass, is different from traditional, or in-country, 

bypass. RLYH is a special discount program. By paying a subscription fee, 

subscribers to the RLYH program can make calls to Haiti from the United States 

without paying international and roaming rates. Instead, these customers can 

make calls to Haiti at the local per-minute rate. Digicel-Haiti contends that RLYH 

is offered to customers in Haiti. UPM contends that RLYH is offered to anyone 

with a Digicel- Haiti SIM card, whether in Haiti or in the United States.

Digicel-Haiti alleges that UPM obtained Digicel-Haiti’s SIM cards and then 

enrolled some of those cards in Digicel-Haiti’s RLYH program. UPM then used 

its computer servers to connect international calls from the United States to 

Digicel- Haiti’s roaming partners in the United States. Digicel-Haiti’s roaming 

partners in the United States are U.S. telecommunications carriers that provide 

communications services in this country. With RLYH, Digicel-Haiti’s United

States roaming partners paid Digicel-Haiti the 23 cents per minute international 

termination rate for each RLYH call, while UPM was charged 9 cents per minute 

Exhibit 1 

Page 9 of 27 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 13 of 77
for such calls. For RLYH, UPM contends that it used Gateway radios in the 

United States, rather than Gateway radios in Haiti.

Now I will explain how the alleged fraud comes into this trial. DigicelHaiti sought to prevent companies like UPM from engaging in both traditional 

bypass and RLYH bypass in Haiti. When Digicel-Haiti believed that one of its 

SIM cards was being used in either of those ways, Digicel-Haiti would deactivate 

that card so that it could no longer be used to make calls. Also, UPM contends 

that after Digicel-Haiti would deactivate a SIM that it believed was being used for 

bypass, Digicel-Haiti generally would keep any money left over in that SIM 

card’s account.

In this trial, Digicel-Haiti alleges that UPM used special computer 

software, sometimes called “Human Behavior Simulation” software (or HBS 

software), when placing calls from the United States to Haiti. According to 

Digicel-Haiti, HBS software allowed UPM to mimic how real human beings 

make calls. Allegedly, this software would control when each SIM card would be 

used to make a call, how long it stayed on calls, how often it made a call, and 

similar factors. Digicel-Haiti alleges that UPM used this HBS software to try to 

avoid Digicel- Haiti’s efforts to detect and deactivate SIM cards being used by 

UPM. In other words, Digicel-Haiti alleges that UPM used Human Behavior 

Simulation software to commit fraud by actively concealing, or hiding, UPM’s 

bypass and RLYH activities from Digicel-Haiti. Based on this claim, DigicelExhibit 1 

Page 10 of 27 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 14 of 77
Haiti is seeking money damages for the calls UPM terminated on its network, as 

well as punitive damages. 

UPM and Mr. Tran deny that they engaged in fraud by active concealment. 

They say that UPM did not use HBS software to try to deceive Digicel-Haiti into 

thinking that actual human beings were making calls with the SIM cards that 

UPM used. UPM further states that Digicel-Haiti was very good at detecting when 

a SIM card was being used for bypass, and quickly deactivated those cards.

UPM also argues that it did not cause any economic harm to Digicel-Haiti, 

which is required for a claim of fraud by active concealment. UPM says that 

Digicel-Haiti had no losses because it kept all the leftover money in the accounts 

of deactivated SIM cards. For traditional bypass, UPM says that Digicel-Haiti 

received the correct per-minute rate of 9 cents per minute because UPM’s 

Gateways were in Haiti and the calls, therefore, were made entirely with Haiti. 

For RLYH, UPM contends that Digicel-Haiti received 23 cents per minute from 

its roaming partners in the United States plus 9 cents per minute from UPM. In 

addition, for both types of bypass, UPM contends that Digicel-Haiti was not 

actually entitled to $0.23 per minute, because it was required to pay $0.05 per 

minute to the Haitian government for incoming international traffic, and so was 

entitled to at most $0.18 per minute. According to UPM, even if it used HBS 

software to actively conceal its activities, Digicel-Haiti has not been financially 

harmed or harmed in the amount that Digicel-Haiti claims. Digicel-Haiti disagrees 

Exhibit 1 

Page 11 of 27 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 15 of 77
and contends that it has been harmed by UPM’s use of RLYH.

As you can see, the parties agree on some things and disagree on other 

things. That is why we are having a trial. Also, I appreciate that some of these 

issues may seem complicated. If you are selected to serve on this jury, you will hear 

what I just explained a few more times, you will see evidence, and you will hear 

witness testimony. It will make more sense as the trial progresses.

But I do need to make one thing clear now. The Court has already ruled that 

bypass, by itself, is not fraud under Oregon law, which is the law that applies in 

this case. Whether UPM purchased SIM cards from third-party vendors, whether 

UPM placed multiple SIM cards in computer servers, and whether UPM used 

those servers to terminate calls over the internet from the United States to Haiti are 

questions that may have to be determined at trial, but even if those specific 

activities were done, they are not, by themselves, fraud. Also, whether UPM used 

multiple SIM cards to subscribe to RLYH may have to be determined at trial, but 

even if it did, that, by itself, is not fraud.

The only questions of alleged fraud in this trial are: (1) whether 

Defendants UPM and Mr. Tran actively concealed their activities from DigicelHaiti by using Human Behavior Simulation software; (2) if they did, whether 

UPM’s use of HBS software caused harm to Digicel-Haiti; and (3) if it did, what 

is a reasonable estimate of that harm, without speculating. Specifically, the first 

question is whether UPM and Mr. Tran used Human Behavior Simulation 

Exhibit 1 

Page 12 of 27 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 16 of 77
software to mimic the patterns of individual human callers to disguise the fact 

that they were a business using multiple SIM cards and terminating multiple calls 

on Digicel- Haiti’s network. UPM and Mr. Tran deny using HBS, and DigicelHaiti alleges that they did.

Burden of Proof

The plaintiff has the burden of proving all the elements its claim of fraud, 

other than except for the amount of the amount of damages, by what the law calls 

“clear and convincing evidence.” When a party has the burden of proving a claim

by clear and convincing evidence, it1 That means that the party asserting a claim 

of fraud must present evidence on all elements of that claim that leaves you with a 

firm belief or conviction that it is highly probable that the factual contentions of 

the claim or defense are true.facts required for liability are true.2 Clear and 

convincing evidence is evidence which is free from confusion, fully intelligible, 

distinct, and establishes that the defendant intended to deceive the plaintiff. 3

If the plaintiff proves by clear and convincing evidence all the elements of 

its claim of fraud, other than the amount of damages, the plaintiff then need only 

prove the amount of its damages by what the law calls a “preponderance of the 

1

See Final Jury Instruction (Draft Dated October 29, 2022), No. 2.

2

Id.

3 Riley Hill Gen. Contractor, Inc. v. Tandy Corp., 303 Or 390, 407, 737 P2d 595 (1987) (citing 

Cook v. Michael, 214 Or. 513, 527, 330 P.2d 1026 (1958)); see also Defendants' Proposed 

Instructions (ECF #473) ("UPM Instructions"), p. 7.

Exhibit 1 

Page 13 of 27 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 17 of 77
evidence.” When a party has the burden of proving its damages by a 

preponderance of the evidence, it means that you must be persuaded by the 

evidence that the facts showing the amount of damages to be awarded are more 

probably true than not true. 

In this case, Digicel-Haiti is suing not only UPM, but also its chief executive 

officer, Mr. Tran. To hold an officer of a corporation liable for fraudulent conduct 

committed by the corporation, a plaintiff must first establish that the corporation is 

liable for fraud by clear and convincing evidence and, then, the plaintiff must prove

by clear and convincing evidence that the officer either personally participated in the 

fraudulent conduct or had knowledge of the fraudulent conduct being committed and 

did not stop it from occurring before the officer can be held personally liable.

4

Also, a plaintiff must prove a claim for punitive damages by clear and 

convincing evidence.

5 A jury may award punitive damages to punish misconduct 

and deter similar misconduct from occurring in the future.6 That means that the 

party seeking punitive damages must present evidence that leaves you with a firm 

belief that it is highly probable that the facts required for punitive damages are 

true.7

4

See Final Jury Instruction (Draft Dated October 29, 2022) No. 20; UPM Instructions, p. 33; UPM 

Instructions Response, p. 16-18.

5

See Final Jury Instruction (Draft Dated October 29, 2022) No. 2.

6 UCJI No. 75.02 (Punitive Damages—General).

7

Id.

Exhibit 1 

Page 14 of 27 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 18 of 77
You should base your decision on all the evidence, regardless of which 

party presented it.

What Is Evidence

The evidence you are to consider in deciding what the facts are consists of:

1. the sworn testimony of any witness;

2. the exhibits that are received into evidence; and

3. any facts to which the parties have agreed, which are called 

“stipulations.” The parties have agreed to certain facts8and a glossary 

of technical terms that will be presented to you after the attorneys' 

opening arguments [and to be placed into evidence as Exhibit(s) __]. 

You must therefore treat these stipulated facts as having been proved.9

What Is Not Evidence

In reaching your verdict, you may consider only the testimony and 

exhibits received into evidence. Certain things are not evidence, and you may 

not consider them in deciding what the facts are. I will list them for you:

1. Arguments and statements by lawyers are not evidence. The 

lawyers are not the witnesses in this case. What they will soon say in their 

opening statements, will say in their closing arguments at the end of the trial, 

and at other times is intended to help you interpret the evidence, but what the 

8

See Joint Stipulations (ECF #362) and Supplemental Joint Stipulations (Glossary) (ECF #368). 

9

9th Circuit Model Civil Jury Instructions ("MCJI") No. 2.2 (Stipulations of Fact). 

Exhibit 1 

Page 15 of 27 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 19 of 77
lawyers say is not evidence. Also, if the facts as you remember them differ 

from the way the lawyers have stated them, your memory of them controls.

2. Questions and objections by lawyers are not evidence. Attorneys 

have a duty to their clients to object when they believe a question is improper 

under the rules of evidence. You should not be influenced by the objection or 

by the court’s ruling on it.

3. 3. Testimony that has been excluded or stricken, or that you have been

instructed to disregard, is not evidence and must not be considered. In addition, 

sometimes testimony and exhibits are received only for a limited purpose; when. 

When I have giveninstruct you a limiting instructionthat an item of evidence has 

been admitted only for a limited purpose, you must followconsider it only for that 

limited purpose and not for any other purpose.10

4. Anything you may see or hear when the court is not in session is not 

evidence. You are to decide the case solely on the evidence received at the trial. 

Direct and Circumstantial Evidence

Evidence may be direct or circumstantial. Direct evidence is direct proof of a

fact, such as testimony by a witness about what that witness personally saw or 

heard or did. Circumstantial evidence is proof of one or more facts from which 

you could find another fact. You should consider both kinds of evidence. The law 

10 MCJI 1.10 (What is Not Evidence). 

Exhibit 1 

Page 16 of 27 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 20 of 77
makes no distinction between the weight to be given to either direct or 

circumstantial evidence. It is for you to decide how much weight to give to any 

evidence.

By way of example, if you wake up in the morning and see that the 

sidewalk is wet, you may find from that fact that it rained during the night. Other 

evidence, however, such as testimony that someone turned on a garden hose, may 

provide a different explanation for the presence of water on the sidewalk. 

Therefore, before you decide that a fact has been proven by circumstantial 

evidence, you must consider all the evidence in the light of reason, experience, 

and common sense.

Ruling on Objections

There are rules of evidence that control what can be received into evidence.

When a lawyer asks a question or offers an exhibit into evidence and a lawyer on 

the other side thinks that it is not permitted by the rules of evidence, that lawyer 

may object. If I overrule the objection, by saying “overruled,” for example, the 

question may be answered, or the exhibit may be received. If I sustain the 

objection, by saying “sustained,” for example, the question may not be answered, 

or the exhibit may not be received. Whenever I sustain an objection to a question, 

you must ignore the question and must not guess what the answer might have been.

Sometimes I may order that evidence be stricken from the record and that 

you disregard or ignore the evidence. That means that when you are deciding the 

Exhibit 1 

Page 17 of 27 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 21 of 77
case, you must not consider the evidence that I told you to disregard.

Credibility of Witnesses

In deciding the facts in this case, you may have to decide which testimony 

to believe and which testimony not to believe. You may believe everything a 

witness says, or part of it, or none of it. Also, proof of a fact does not necessarily 

depend on the number of witnesses who testify about it. In considering the 

testimony of any witness, you may consider:

1. the opportunity and ability of the witness to see or hear or know 

the things testified to;

2. the witness’s memory and other factors affecting their cognitive 

abilities;

11

3. the witness’s manner while testifying;

4. the witness’s interest in the outcome of the case, if any;

5. the witness’s bias or prejudice, if any;

6. whether other evidence contradicted the witness’s testimony;

7. the reasonableness of the witness’s testimony based on all the 

evidence; and

8. [Evidence concerning the character of the witness for 

11 UPM Instructions, p. 10; see also Defendants' Response to Plaintiff Unigestion Holdings, S.A.'S 

Objections to Defendants' Proposed Jury Instructions and Verdict Form (ECF #496) ("UPM 

Instructions Response"), p. 8-9

Exhibit 1 

Page 18 of 27 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 22 of 77
truthfulness; and]12

9. 8. any other factors that bear on believability.

In your determination of credibility, you must avoid bias, conscious or 

unconscious, based on a witness’s race, color, religious beliefs, national ancestry, 

sexual orientation, gender identity, gender, or economic circumstances.

In addition, the weight of the evidence as to a fact does not necessarily 

depend on the number of witnesses who testify about it.

Conduct of the Jury

I will now say a few words about your conduct as jurors. First, keep an 

open mind throughout the trial, and do not decide what the verdict should be until 

you and your fellow jurors have completed your deliberations at the end of the 

case.

Second, because you must decide this case based only on the evidence 

received in the case and on my instructions as to the law that applies, you must 

not be exposed to any other information about the case or to the issues it involves 

during the course of your jury duty.

Thus, until the end of the case or unless I tell you otherwise:

1. Do not communicate with anyone in any way and do not let anyone 

else communicate with you in any way about the merits of the case or anything to 

12 UCJI No. 10.03; UPM Instructions, p. 10; UPM Instructions Response, p. 8-9. 

Exhibit 1 

Page 19 of 27 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 23 of 77
do with it. This includes discussing the case in person, in writing, by phone or 

electronic means, via email, via text messaging, or any Internet chat room, blog, 

website or application, including but not limited to Facebook, YouTube, Twitter, 

Tumblr, Instagram, LinkedIn, Snapchat, WhatsApp, or any other forms of social 

media. This applies to communicating with your family members, your employer, 

the media or press, and the people involved in the trial. If you are asked or 

approached in any way about your jury service or anything about this case, you 

must respond that you have been ordered not to discuss the matter and to report 

the contact to the court.

2. You may, however, notify your family and your employer that you 

have been seated as a juror in the case. You may tell them that you are expected 

to be in court from 9:00 a.m. through 5:00 p.m. every day that the trial is in 

session, and you may tell them how long this trial is expected to last. But you 

may not tell them what this case is about or who is involved.

3. If any lawyer, party, or witness does not speak to you when you pass 

in the hall, ride the elevator, or the like, remember it is because they are not 

supposed to talk or visit with you, either. That is why you are asked to wear your

juror tags. It shows that you are a juror and should not be approached in any way 

during this trial.

4. Because you will receive all the evidence and legal instruction you 

properly may consider to return a verdict: do not read, watch, or listen to any news 

Exhibit 1 

Page 20 of 27 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 24 of 77
or media accounts or commentary about the case or anything to do with it; do not 

do any research, such as consulting dictionaries, searching the Internet or using 

other reference materials or law books; and do not make any investigation or in 

any other way try to learn about the case on your own. By this I mean, if there is a 

newspaper article or radio or television report relating to this case, do not read the 

article or watch or listen to the report. Also, as I said, do not try to do any 

independent factual or legal research or investigation on your own on any matters 

relating to the case or this type of case. Do not do any research on the internet, for 

example. You are to decide the case upon the evidence presented at trial. In other 

words, you should not consult dictionaries, law books, or reference materials; do 

not search the internet, websites, blogs, or use any other electronic tools to obtain 

factual or legal information about this case or to help you decide the case. In short, 

do not try to find out information from any source other than what I allow to be 

received in evidence in this courtroom.

5. The law requires these restrictions to ensure the parties have a fair 

trial based on the same evidence that each party has had an opportunity to address

and respond to. A juror who violates these restrictions jeopardizes the fairness of 

these proceedings, and a mistrial could result that would require the entire trial 

process to start over. If any juror is exposed to any outside information, please 

notify the court immediately.

Exhibit 1 

Page 21 of 27 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 25 of 77
Publicity During Trial

If there is any news media account or commentary about the case or 

anything to do with it, you must ignore it. You must not read, watch or listen to 

any news media account or commentary about the case or anything to do with it. 

The case must be decided by you solely and exclusively on the evidence that will 

be received in the case and on my instructions as to the law that applies. If any 

juror is exposed to any outside information, please notify me immediately.

No Transcript Available to Jury

During deliberations, you will have to make your decision based on what 

you recall of the evidence. You will not have a transcript of the trial. I urge you to 

pay close attention to the testimony as it is given. If at any time you cannot hear or 

see the testimony, evidence, questions or arguments, let me know so that I can 

correct the problem.

Taking Notes

If you wish, you may take notes to help you remember the evidence. If you 

do take notes, please keep them to yourself until you and your fellow jurors go to 

the jury room to decide the case. Do not let note-taking distract you. When you

leave, your notes should be left in the jury room. No one will read your notes. At 

the end of the entire trial, you will be welcome to take your notes home with you 

or you can leave them with us and we will destroy them – but until then, please 

leave them in the jury room at the end of each trial day. Whether or not you take 

Exhibit 1 

Page 22 of 27 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 26 of 77
notes, you should rely on your own memory of the evidence. Notes are only to 

assist your memory. You should not be overly influenced by your notes or those of 

your fellow jurors.

Bench Conferences and Recesses

From time to time during the trial, it may become necessary for me to talk 

with the attorneys out of the hearing of the jury, either by having a conference at 

the bench when the jury is present in the courtroom, or by calling a recess. Please 

understand that while you are waiting, we are working. The purpose of these 

conferences is not to keep relevant information from you, but to decide how 

certain evidence is to be treated under the rules of evidence and to avoid 

confusion and error. We will do what we can to keep the number and length of 

these conferences to a minimum. I may not always grant an attorney’s request for 

a conference, and I may tell an attorney to move on to another topic and save our 

discussion for the next break. Do not consider my granting or denying a request 

for a conference as any indication of my opinion of the case or of what your 

verdict should be.

Outline of Trial Process

Trials proceed in the following way: First, the lawyers for each side make 

opening statements. An opening statement is not evidence. It is simply an outline 

to help you understand what that party expects the evidence will show.

After the opening statements, the plaintiff’s lawyer will call a witness to 

Exhibit 1 

Page 23 of 27 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 27 of 77
testify, either in person or by playing video excerpts or by reading portions from 

the deposition of that witness. A deposition is the sworn testimony of a witness 

taken before trial. The witness is placed under oath to tell the truth, and lawyers 

for each party may ask questions. The questions and answers are recorded. Insofar 

as possible, you should consider deposition testimony shown or read to you in 

court in the same way as if the witness had testified in court in person.

When a witness is called to the stand to testify before you in person, the 

witness will be questioned first by a lawyer for the plaintiff in what is called 

“direct examination.” After the direct examination of a witness is completed, a 

lawyer for the defendant may question that witness. That is called “crossexamination.” When that cross-examination is done, I will allow the plaintiff’s 

lawyer to ask additional questions; that is called “re-direct examination.” Next, I 

will allow the defendant’s lawyer to ask additional questions; that is called

“re-cross-examination.”

After the plaintiff has presented all its witnesses, the defendants will be 

allowed to call witnesses. If a defendant calls a witness, that person will be 

examined and cross-examined in the same manner that I have just described.

You should keep an open mind throughout the entire trial. After all the 

evidence has been presented, I will give each of you a written copy of the Final 

Jury Instructions on the law that applies in this case, and the attorneys for each 

side will make their closing arguments. After that, you will go to the jury room to 

Exhibit 1 

Page 24 of 27 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 28 of 77
discuss the case with each other, deliberate on your verdict, and answer the 

questions presented to you on the verdict form.

Questions of Witnesses by Jurors

When a witness has completed answering questions in both direct and 

cross- examination, a juror may submit a written question to our Courtroom 

Deputy, which I will review and share with the lawyers. If it is appropriate, we 

will either ask the witness that question before continuing, or another witness later 

in the trial may be asked that question. If the question or answer is not allowed 

under the rules of evidence, I will not allow the question to be asked or answered. 

I use this process primarily to reduce the risk of confusion or ambiguity in a

witness’s testimony. The jurors are not to assume the role of a lawyer. This 

process of allowing jurors to submit questions simply is intended to ensure that 

the evidence that the lawyers are presenting is reasonably clear and 

understandable for everyone.

Recesses

We will soon take a recess. During this recess and any other recesses, you 

must not discuss this case with anyone, including your fellow jurors, members of 

your family, people involved in the trial, or anyone else. If anyone tries to talk to 

you about the case, do not tell your fellow jurors but tell me about it immediately. 

Do not read, watch, or listen to any news reports of the trial, or conduct any 

factual or legal research or investigation, including on the internet, dictionaries, or 

Exhibit 1 

Page 25 of 27 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 29 of 77
law books. Do not go to or visit any location mentioned during the trial. Finally, 

keep an open mind throughout the trial until all the evidence has been received 

and you have heard the views of your fellow jurors. If you need to speak with me 

about anything, simply give a signed note to our courtroom deputy, Mary Austad, 

and she will give it to me. I may not repeat these admonitions each time we recess 

or adjourn, but even when I don’t repeat them, they will always apply. I am 

certain, however, that I will be reminding you about them from time to time.

Exhibit 1 

Page 26 of 27 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 30 of 77
Document comparison by Workshare Compare on Friday, November 11, 2022 

2:49:39 PM

Input:

Document 

1 ID file://F:\STORAGE\LSSe64DOCS\00000736\00702023.000.DOCX 

Description00702023.000 

Document 

2 ID file://F:\STORAGE\LSSe64DOCS\00000736\00702010.000.DOCX 

Description00702010.000 

Rendering 

set Standard

Legend:

Insertion 

Deletion 

Moved from 

Moved to 

Style change 

Format change 

Moved deletion 

Inserted cell

Deleted cell

Moved cell

Split/Merged cell

Padding cell

Statistics:

Count 

Insertions 66

Deletions 16

Moved from 2

Moved to 2

Style changes 0

Format changes 0

Total changes 86

Exhibit 1 

Page 27 of 27 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 31 of 77
Draft dated: October 29, 2022 (Not filed in CM/ECF)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

UNIGESTION HOLDING, S.A.,

d/b/a DIGICEL-HAITI,

Plaintiff,

v.

UPM TECHNOLOGY, INC. and

DUY BRUCE TRAN,

Defendants.

Case No. 3:15-cv-00185-SI

FINAL JURY INSTRUCTIONS

DATED this day of November, 2022.

Michael H. Simon

United States District Judge

Exhibit 2 

Page 1 of 40 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 32 of 77
INDEX OF FINAL JURY INSTRUCTIONS

Instruction No. 1: Duty of Jury.......................................................................4

Instruction No. 2: Burden of Proof—Clear and Convincing Evidence .........4

Instruction No. 3: Burden of Proof—Preponderance of the Evidence...........5

Instruction No. 4: What Is Evidence ..............................................................5

Instruction No. 5: What Is Not Evidence .......................................................6

Instruction No. 6: Evidence for a Limited Purpose........................................7

Instruction No. 7: Direct and Circumstantial Evidence .................................7

Instruction No. 8: Ruling on Objections.........................................................7

Instruction No. 9: Credibility of Witnesses....................................................8

Instruction No. 10: Charts and Summaries Received in Evidence ................9

Instruction No. 11: Charts and Summaries Not Received in Evidence ........10

Instruction No. 12: Stipulations of Fact ........................................................10

Instruction No. 13: Deposition in Lieu of Live Testimony...........................10

Instruction No. 14: Answers to Interrogatories.............................................11

Instruction No. 15: Responses to Requests for Admissions..........................11

Instruction No. 16: Opinion Testimony.........................................................11

Instruction No. 17: All Parties Are Equal Before the Law ...........................12

Instruction No. 18: Corporations, Agents, and Principals.............................12

Instruction No. 19: Two Defendants .............................................................12

Exhibit 2 

Page 2 of 40 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 33 of 77
Instruction No. 20: Joint or Separate Liability ..............................................12

Instruction No. 21: Plaintiff’s Claim of Fraud by Active Concealment .......13

Instruction No. 22: Compensatory Damages.................................................15

Instruction No. 23: Punitive Damages...........................................................17

Instruction No. 24: Verdict Form ..................................................................18

Instruction No. 25: Duty to Deliberate ..........................................................19

Instruction No. 26: Consideration of Evidence—Conduct of the Jury .........19

Instruction No. 27: Evidence in Electronic Format.......................................21

Instruction No. 28: Communication with Court............................................23

Instruction No. 29: Return of Verdict............................................................23

Exhibit 2 

Page 3 of 40 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 34 of 77
Instruction No. 1: Duty of Jury

Members of the Jury:

Now that you have heard all the evidence, it is my duty to instruct you on 

the law that applies to this case. You may keep a copy of these instructions and 

have them with you in the jury room to consult.

It is your duty to weigh and evaluate all the evidence received in the case 

and, in that process, to decide the facts. It is also your duty to apply the law as I 

state it to the facts as you find them, whether you agree with the law or not. You 

must decide the case solely on the evidence and the law. At the beginning of this 

trial, you took an oath promising to do so. Also, do not allow personal likes or 

dislikes, sympathy, prejudice, fear, public opinion, or biases to influence you.

You must follow all these instructions and not single out some and ignore 

others; they are all important. Please do not read into these instructions or into 

anything I may have said or done any suggestion as to what verdict you should 

return—that is a matter entirely up to you.

Instruction No. 2: Burden of Proof—Clear and Convincing Evidence

A plaintiff must prove all elements of a fraud claim except for the amount 

of damages by what the law calls “clear and convincing” evidence. That means 

that the party asserting a claim of fraud must present evidence on all elements of 

that claim except the amount of damages that leaves you with a firm belief or 

conviction that it is highly probable that the facts required for liability are true. 

Exhibit 2 

Page 4 of 40 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 35 of 77
Also, a plaintiff must prove a claim for punitive damages by clear and 

convincing evidence. That means that the party seeking punitive damages must 

present evidence that leaves you with a firm belief that it is highly probable that 

the facts required for punitive damages are true.

Proof by clear and convincing evidence is a higher standard of proof than 

proof by a preponderance of the evidence, but it does not require proof beyond a 

reasonable doubt. Clear and convincing evidence is evidence which is free from 

confusion, fully intelligible, distinct, and establishes that the defendant intended to 

deceive the plaintiff.1

You should base your decision on all the evidence, regardless of which party 

presented it.

Instruction No. 3: Burden of Proof—Preponderance of the Evidence

A plaintiff alleging fraud need only prove the amount of damages by what 

the law callcalls a “preponderance of the evidence.” That means that you must be 

persuaded by the evidence that the facts needed to show the amount of actual 

damages, if any, are more probably true than not.

After weighing all the evidence, if you cannot decide that something is more 

likely true than not true, you must conclude that the party did not prove it.2 You 

1 Riley Hill Gen. Contractor, Inc. v. Tandy Corp., 303 Or 390, 407, 737 P2d 595 (1987); see also

Defendants' Proposed Instructions (ECF #473) ("UPM Instructions"), p. 7.

2 Oregon Uniform Civil Jury Instructions ("UCJI") No. 14.02 (Preponderance of the Evidence) at ⁋ 

2. 

Exhibit 2 

Page 5 of 40 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 36 of 77
should base your decision on all the evidence, regardless of which party presented 

it.

Instruction No. 4: What Is Evidence

The evidence you are to consider in deciding what the facts are consists of:

1. the sworn testimony of any witness;

2. the exhibits that are received into evidence; and3. any facts to which 

the parties have agreed, which are also called “stipulations.” The 

parties have agreed to certain facts3[which were read to you and/or 

were placed into evidence as Exhibit __]. You must therefore treat 

these stipulated facts as having been proved.4Instruction No. 5: What 

Is Not Evidence

In reaching your verdict, you may consider only these three types of 

evidence. Certain things are not evidence, and you may not consider them in 

deciding what the facts are. I will list them for you:

1. Arguments and statements by lawyers are not evidence. The lawyers 

are not witnesses. What they saysaid in their opening statements, closing 

arguments, or at any other time is intended to help you interpret the evidence, but 

what the lawyers say is not evidence. If the facts as you remember them differ 

from how the lawyers stated them, you should rely on your memory of the facts.

2. Questions and objections by lawyers are not evidence. Attorneys have 

a duty to their clients to object when they believe a question is improper under the 

3

See Joint Stipulations (ECF #362) and Supplemental Joint Stipulations (Glossary) (ECF #368). 

4

 9th Circuit Model Civil Jury Instructions ("MCJI") No. 2.2 (Stipulations of Fact). 

Exhibit 2 

Page 6 of 40 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 37 of 77
rules of evidence. You should not be influenced by the objection or by the court’s 

ruling on it.

3. Any testimony that has been excluded or stricken or that I have 

instructed you to disregard is not evidence and must not be considered. In 

addition, some evidence was received only for a limited purpose; when I 

have instructed you to consider certain evidence only for a limited purpose, 

you must do so, and you may not consider that evidence for any other 

purpose.5

4. Anything you may have seen or heard when the court was not in 

session or when I was not on the bench is not evidence. You are to decide the case 

solely on the evidence received at trial.

Instruction No. 6: Evidence Received for a Limited Purpose

Some evidence may be admitted only for a limited purpose. If I instructed 

you that an item of evidence has been admitted only for a limited purpose, you 

must consider it only for that limited purpose and not for any other purpose.

Specifically, the Court received evidence related to [UPM’s shipping of 

items between UPM in Oregon and its agents in Haiti, and Defendants’ wire 

transfers between UPM and its agents in Haiti] and [describe any other limited5MCJI 1.10 (What is Not Evidence). 

Exhibit 2 

Page 7 of 40 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 38 of 77
purpose evidence admitted at trial] for a limited purpose. 

You may consider such evidence, testimony and argument only for the 

limited purpose of determining whether or not UPM used human behavior 

simulation software (or HBS software) with the motive, intent or absence of 

mistake to disguise the nature of any calls that UPM caused to be transmitted to 

Digicel-Haiti's network in Haiti.

You may not consider such evidence for any other purpose. You may not 

consider this testimony for the purpose of proving the Defendants' character in 

order to show that any Defendant acted in conformity with that character. 

Instruction No. 7: Direct and Circumstantial Evidence

Evidence may be direct or circumstantial. Direct evidence is direct proof of 

a fact, such as testimony by a witness about what that witness personally saw or 

heard or did. Circumstantial evidence is proof of one or more facts from which 

you could find another fact. You should consider both kinds of evidence. The law 

makes no distinction between the weight to be given to either direct or 

circumstantial evidence. It is for you to decide how much weight to give to any 

evidence.

Instruction No. 8: Ruling on Objections

There are rules of evidence that control what can be received in evidence.

When a lawyer asks a question or offers an exhibit in evidence and a lawyer on 

Exhibit 2 

Page 8 of 40 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 39 of 77
the other side believes that question or exhibit is not permitted by the rules of 

evidence, that lawyer may object. If I overruled the objection, the question may 

be answered, or the exhibit may be received in evidence. If I sustained the 

objection, however, the question may not be answered, or the exhibit may not be 

received in evidence. Whenever I sustained an objection to a question or an 

exhibit, you must ignore the question or the exhibit and must not guess what the 

answer might have been or what might have been in the exhibit that was offered.

Instruction No. 9: Credibility of Witnesses

In deciding the facts in this case, you may have to decide which testimony 

to believe and which testimony not to believe. You may believe everything a 

witness says, or part of it, or none of it.

In evaluating the testimony of any witness, you may consider:

1. the opportunity and ability of the witness to see or hear or know 

the things testified to;

2. the witness’s memory and other factors affecting their cognitive 

abilities;

6

3. the witness’s manner while testifying;

4. the witness’s interest in the outcome of the case, if any;

5. the witness’s bias or prejudice, if any;

6 UPM Instructions p. 10; see also Defendants' Response to Plaintiff Unigestion Holdings, S.A.'S 

Objections to Defendants' Proposed Jury Instructions and Verdict Form (ECF #496) ("UPM 

Instructions Response"), p. 8-9

Exhibit 2 

Page 9 of 40 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 40 of 77
6. whether other evidence contradicted the witness’s testimony;

7. the reasonableness of the witness’s testimony considering all 

the evidence; and

8. [Evidence concerning the character of the witness for 

truthfulness; and]7

9. 8. any other factors that you think bear on believability.

In your determination of credibility, however, you must avoid bias, 

conscious or unconscious, based on a witness’s race, color, ethnicity, religious 

beliefs, national ancestry, sexual orientation, gender identity, gender, or economic 

circumstances.

Sometimes a witness may say something that is not consistent 

withsomethingwith something else he or she said. Sometimes different witnesses 

will give different versions of what happened. People often forget things or make 

mistakes in what they remember. Also, two people may see the same event but 

remember it differently. You may consider these differences, but do not decide 

that testimony is untrue just because it differs from other testimony.

If you decide, however, that a witness has deliberately testified untruthfully 

about something important, you may choose not to believe anything that witness 

7 UCJI No. 10.03 (Evaluating Witness Testimony); UPM Instructions p. 10; UPM Instructions 

Response, p. 8-9. 

Exhibit 2 

Page 10 of 40 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 41 of 77
said. On the other hand, if you think the witness testified untruthfully about some 

things but told the truth about others, you may accept the part you think is true and 

ignore the rest.

Neither the proof of a fact nor the weight of any evidence depends on the 

number of witnesses who testify. What is important is how believable the 

witnesses were and how much weight you think their testimony deserves.

Instruction No. 10: Charts and Summaries Received in Evidence

Certain charts or summaries have been admitted in evidence to illustrate 

information brought out in the trial. Charts and summaries are only as good as the 

testimony or other admitted evidence that supports them. You should, therefore, 

give them only such weight as you think the underlying evidence deserves.

Instruction No. 11: Charts and Summaries Not Received in Evidence

Certain charts or summaries not admitted in evidence have been shown to 

you to help explain the evidence in the case. I have sometimes referred to those 

items as “demonstrative evidence.” Demonstrative evidence will not be available 

to you during your deliberations, and they are only as good as the underlying 

evidence that supports them. You should, therefore, give them only such weight 

as you think they and the underlying evidence deserves.

Instruction No. 12: Stipulations of Fact

The parties have agreed to certain facts that I will read to you. You must 

treat these facts as having been proved. The stipulated, or agreed-upon, facts are as 

Exhibit 2 

Page 11 of 40 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 42 of 77
follows:

[INSERT, IF APPLICABLE]

1. The Plaintiff in this case is Unigestion Holdings, S.A., doing business 

as Digicel Haiti, Inc. (Digicel Haiti). Digicel Haiti provides mobile 

telecommunications services in Haiti and has more than four million customers. It 

operates solely within Haiti and has more than 900 employees. Digicel Haiti has 

several affiliated entities, collectively, the “Digicel Group.” Besides Digicel Haiti, 

the Digicel Group includes, among others, Digicel USA, Inc. (Digicel USA) and 

Digicel Jamaica Limited (Digicel Jamaica).

2. Digicel USA holds a license from the Federal Communications 

Commission that permits it to switch international telecom traffic in the United 

States. Digicel USA is not a party to this case, but it performs some functions relating 

to calls between the United States and Haiti. Digicel USA’s switching operations act 

as a hub for international traffic between wholesale carriers in the USA and several 

markets in the Caribbean, including Haiti, which is served by Digicel Haiti.

3. Digicel Jamaica is not a party to this case, but performs some 

administrative functions for Digicel Haiti, including billing United States 

telecommunications companies on behalf of Digicel Haiti.

4. The defendants in this case are UPM Technology, Inc. (UPM) and its 

owner and Chief Executive Officer Mr. Bruce Tran. UPM is an Oregon corporation. 

During the period relevant to this lawsuit, UPM participated in the spot market for 

Exhibit 2 

Page 12 of 40 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 43 of 77
international resale to identify other carriers that had traffic that terminated in other 

countries. 

5. UPM purchased bulk quantities of Digicel Haiti’s SIM cards from thirdparty vendors. “SIM” is an acronym for “Subscriber Identity Module.” Each SIM 

card contains a unique identification number and other information used to 

“authenticate” the card on a telecommunication carrier’s network, enabling the card 

to be used to make calls. Typically, an individual cell phone user would purchase a 

SIM card to be used for making calls from a specific cell phone, or handset. 

6. Each SIM card has an associated account in Digicel-Haiti’s system. For 

pre-paid wireless service, which is the only form of service relevant to this case, a 

SIM card must have money in its account in order to be used to make calls. Adding 

money to a prepaid SIM card is called “recharging” or “topping up” the SIM card. 

UPM would install multiple SIM cards in UPM’s computer servers (known as “SIM 

Units”), which were typically in Oregon. 

7. If a carrier, such as Digicel Haiti, deactivates (or de-authenticates) a 

SIM card, that card can no longer be used to make calls. 

8. A “softswitch” is a computer program running on a server connected to 

the Internet that can receive calls in “Voice over Internet Protocol,” or “VoIP”

format, and then transmit those calls to other devices that are also connected to the 

Internet. 

Exhibit 2 

Page 13 of 40 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 44 of 77
9. A Gateway device can contain multiple radios, or radio transmitters. 

After being received by the UPM Gateway device in Haiti, the call (which began in 

the United States) would be transmitted to Digicel Haiti’s cellular communications 

network in Haiti, for termination in Haiti. (In this context, “termination” means the 

location where a call is shown to be received for purposes of a telecommunications 

company’s tracking and billing records.) These calls would appear to Digicel Haiti to

be local calls that had begun in Haiti. Digicel Haiti would charge these calls as local. 

10. For another category of calls, UPM would use SIM cards that were 

registered with Digicel Haiti for Digicel Haiti’s discounted program known as “Roam 

Like You’re Home” (RLYH). In this scenario, when a call that originates in the 

United States intended for Haiti reached UPM’s softswitch in the United States, UPM 

would route that call through Gateway devices here in Portland, where it would be 

associated with a call initiated using a Digicel Haiti SIM Card. For these calls, a 

Digicel Haiti roaming partner (a United States wireless carrier) would route the call 

to Digicel Haiti’s network in Haiti through the Digicel Haiti international switches in 

the USA. Digicel Haiti’s network would recognize that call as having begun in the 

United States by a RLYH Digicel SIM card and would charge the local rate for such 

a call (and reduce the value remaining on the SIM card accordingly). 

11. To facilitate the termination of incoming international call traffic on 

Digicel Haiti’s network in Haiti, Digicel Haiti typically connects telephone calls sent 

Exhibit 2 

Page 14 of 40 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 45 of 77
to it from the United States through a system of telephone switching systems 

operated by Digicel USA and located in Miami, Florida, and New York City, New 

York. Digicel USA provides centralized switching facilities that allow for the 

management, technical support, and quality control for the switching equipment 

responsible for transmission and direction of international calls to Digicel Haiti and 

other Digicel Group affiliates from carriers in the United States. 

12. Digicel Haiti routes all telecommunications traffic from the United 

States to its cellular network in Haiti through the Digicel USA international switching 

centers in Miami and New York. From the cellular network in Haiti, a call is then 

terminated on a Digicel Haiti subscriber’s handset. 

13. Typically, a call from the United States to an individual in Haiti would 

be handled as follows. The caller in the United States (U.S. Caller) would place a call 

to a recipient in Haiti (Haitian Recipient). The call originates on a United States 

carrier’s network, and that carrier transfers the call to a wholesale international 

carrier. The wholesale international carrier recognizes the call as one that is directed 

to Haiti and sends the call to a Digicel USA switch, in either New York or Miami. 

The call is then transmitted from that switch to a switch in Haiti owned and operated 

by Digicel Haiti. The switch in Haiti sends the call to a cell site in Haiti, also owned 

and operated by Digicel Haiti. From that cell site, the call is transmitted by Digicel 

Haiti to the Haitian Recipient’s cellular device. 

14. When a call is directed through Digicel USA’s switch in Miami or New 

Exhibit 2 

Page 15 of 40 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 46 of 77
York, a Call Detail Record (CDR) is created at the switch. The CDR is complete 

when the call is completed. The CDR is a record generated by a switch that contains 

certain call information including the telephone number of the caller, the number of 

the recipient, the time the call was made, and the duration of the call. The information 

in the CDR about the calling and called telephone numbers is in the electronic 

signaling information transmitted from the sending switch as part of the technical 

process of handing off the call from one switch to another. The Digicel Haiti switch 

typically records when the call begins and the duration of the call. 

15. For each incoming international call, a separate simultaneous CDR is 

created by a switch in Haiti and operated by Digicel Haiti. For billing and 

administrative purposes, Digicel Jamaica uses both the CDRs from the international 

switches in Miami and New York and the CDRs from the local switch in Haiti to 

create reports used to reconcile the number of international calls made to Haiti and 

the number of minutes that should be invoiced to the appropriate parties. 

16. When UPM was itself providing call termination on a destination 

network, it would need to acquire SIM cards for use on that specific network. Each 

SIM card has a unique identification number, as well as a telephone number assigned 

to it by the destination network. 

17. “In-country bypass” refers to when UPM itself connected the calls to 

Digicel Haiti’s network in Haiti. In general terms, UPM would send calls via the 

Internet (using VoIP) to Haiti and, via a local Internet connection, to UPM’s Gateway 

Exhibit 2 

Page 16 of 40 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 47 of 77
devices in Haiti. The Gateways were equipped with standard wireless telephone 

service radios, or “ports,” which would make calls on Digicel Haiti’s network. UPM’s 

Gateway would have multiple radios installed inside which allowed the Gateways to 

make multiple calls at the same time. 

18. Before UPM could make calls using its Gateway devices, UPM needed 

to have acquired SIM cards for Digicel Haiti’s network and recharged those SIM 

cards so that the calls would go through. UPM acquired Digicel Haiti SIM cards by 

paying individual people in Haiti to buy them. The individuals would ship the SIM 

cards back to UPM in Oregon. UPM would then mount the SIM cards into a device 

called a “SIM Unit.” The SIM Unit is essentially a large SIM card reader — a device 

that can read the information contained on a SIM card and transmit that information 

to other UPM equipment and send that information, as needed, to Haiti. 

19. To make a wireless call on Digicel Haiti’s network (and, in fact, any 

network using standard technology), it is necessary to authenticate a SIM card on the 

network. To make a call, the radio in a UPM Gateway would transmit authentication 

data from the SIM Card to Digicel Haiti’s network and, after the network has 

confirmed that the SIM card is valid and has money in its account, the radio sends the 

network the number being called. At that point, Digicel Haiti’s network establishes a 

connection to the wireless phone of the party being called. 

20. “RLYH” refers to a specific service that Digicel Haiti offered to 

Exhibit 2 

Page 17 of 40 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 48 of 77
subscribers roaming in the United States known as “Roam Like You’re Home.” UPM 

also used Digicel Haiti’s RLYH service to terminate international calls to Haiti. With 

RLYH, a Digicel Haiti subscriber would pay a flat fee of around $25 per month to 

subscribe to the program. Digicel Haiti would then charge calls using the associated 

SIM card from the United States back to another Digicel Haiti subscriber at the same 

rate that a subscriber would pay for a local wireless call in Haiti. Digicel Haiti would 

also charge the United States wireless carrier (directly or indirectly) the $0.23 per 

minute fee for incoming international calls. After a month, the subscription would 

run out and, unless the RLYH service was renewed, normal roaming rates would 

apply for calls back to Haiti. 

21. When using RLYH to terminate calls on the Digicel Haiti network, a 

call bound for Digicel Haiti’s network would hit UPM’s softswitch and be directed, 

via the Internet, to a Gateway in Oregon, which would initiate a wireless call on the 

United States network of a Digicel Haiti roaming partner, such as AT&T. A SIM 

card enrolled in the RLYH program would be used to authenticate the call. The 

roaming partner would then get the call back to Haiti. 

22. UPM used software that managed the use of multiple SIM cards 

simultaneously. The software was configured to determine which SIM card was used 

to authenticate a call. When Digicel Haiti discovered that the calling and usage 

patterns of SIM cards differed from use by individual customers, Digicel Haiti would 

“de-authorize” those SIM cards so that calls associated with them could no longer be 

Exhibit 2 

Page 18 of 40 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 49 of 77
completed. In its counterclaims, UPM asserts: 

23. Digicel-Haiti used various technical means to analyze the calling and 

usage patterns associated with particular SIM cards to determine if the SIM card was 

being used in Bypass, and, when it concluded that the calling and usage patterns were 

not consistent with authorized use by an individual subscriber, it deauthorized the 

affected SIM cards in its own system, so that calls associated with those SIM cards 

would no longer be completed. UPM knew Digicel Haiti was doing this. Digicel 

Haiti did not know who was using any particular SIM that was being used for bypass. 

You have also been provided a glossary of technical terms,8 which you are 

also to treat as being proved.

Instruction No. 13: Deposition in Lieu of Live Testimony

A deposition is the sworn testimony of a witness taken before trial. The 

witness is placed under oath to tell the truth and lawyers for each party may ask 

questions. The questions and answers are recorded.

The deposition of [name of witness] was taken on [date]. Insofar as possible, 

you should consider deposition testimony, presented to you in court in lieu of live 

testimony, in the same way as if the witness had been in the courtroom to testify. 

[Do not place any significance on the behavior or tone of voice of any person 

reading the questions or answers.]

8

Supplemental Joint Stipulations (Glossary) (ECF #368). 

Exhibit 2 

Page 19 of 40 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 50 of 77
Instruction No. 14: Answers to Interrogatories

Evidence was presented to you in the form of answers by one of the parties 

to written interrogatories submitted by the other side. These answers were given in 

writing and under oath before the trial in response to questions that were submitted 

under established court procedures. You should consider the answers, as far as 

possible, in the same way as if they were given by a witness from the stand.

Instruction No. 15: Responses to Requests for Admissions

Evidence was presented to you in the form of admissions to the truth of 

certain facts. These admissions were given in writing before the trial, in response 

to requests that were submitted under established court procedures. You must 

treat these facts as having been proved.

Instruction No. 16: Opinion Testimony

You have heard testimony from [name]Charles Castel and Kenneth 

McEwen who testified to opinions and the reasons for [his] [her] [their] opinions. 

This opinion testimony is allowed, because of the education or experience of [this 

witness] [these witnesses].

Such opinion testimony should be judged like any other testimony. You 

may accept it or reject it and give it as much weight as you think it deserves, 

considering the witness’s education and experience, credibility, the reasons given 

for the opinion, the reasonableness of any assumptions underlying the opinions,9

9 UCJI No. 10.06 (Expert Witnesses); see also UPM Instructions, p. 11. 

Exhibit 2 

Page 20 of 40 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 51 of 77
and all the other evidence in the case.

Instruction No. 17: All Parties Are Equal Before the Law

All parties are equal before the law. A corporation or other business entity is 

entitled to the same fair and conscientious consideration by you as any party.

Instruction No. 18: Corporations, Agents, and Principals

Under the law, a corporation is considered a person. It can only act through 

its employees, agents, directors, or officers. Therefore, a corporation is responsible 

for the acts of its employees, agents, directors, and officers performed within the 

scope of authority. An agent is a person who performs services for another person 

under an express or implied agreement and who is subject to the other’s control or 

right to control the manner and means of performing the services. The other person 

is called a principal.

Instruction No. 19: Two Defendants

There are two defendants in this case: UPM, the corporation, and Mr. Tran, 

an individual and UPM's Chief Executive Officer.

10 You should decide the case 

as to each defendant separately. Unless otherwise stated, the instructions apply to 

all parties. 

Instruction No. 20: Joint or Separate Liability and Officer/Director Personal 

Liability

Each person or corporation who commits fraudulent conduct is jointly liable

10 Preliminary Jury Instructions, p. 6 (Overview of the Case). 

Exhibit 2 

Page 21 of 40 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 52 of 77
for any indivisible injury legally caused by the fraudulent conduct.

To hold

First, in order to maintain an action for fraud against an officer or director of a 

corporation liable for, it is necessary to first establish that the corporation is liable 

for fraud. Only then can an officer or director be personally liable for the fraudulent 

conduct committed by. 

Second, if the corporation, a plaintiff is liable for fraud, the officer or director 

can only be held personally liable if he or she authorized or participated in the 

fraudulent conduct. Specifically, the Plaintiff must prove, by clear and convincing 

evidence, that thesuch director or officer either personally participated in the 

fraudulent conduct or had knowledge of the fraudulent conduct being committed and 

did not stop it from occurring.11Each person or corporation who commits fraudulent 

conduct is jointly liable for any indivisible injury legally caused by the fraudulent 

conduct.

Instruction No. 21: Plaintiff’s Claim of Fraud by Active Concealment

Using Human Behavior Simulation Software 

The only claim that is before you in this trial is the plaintiff’s claim that one 

or both defendants committed fraud by active concealment. Further, the only 

allegation of fraud by active concealment that is before you in this trial is 

11 UPM Instructions, p. 33; UPM Instructions Response, p. 16-18. 

Exhibit 2 

Page 22 of 40 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 53 of 77
plaintiff’s allegation that one or both defendantsUPM12 used human behavior 

simulation software to disguise the nature of any calls that UPM caused to be 

transmitted to Digicel-Haiti’s network in Haiti by simulating the calling patterns of 

local callers to mislead Digicel-Haiti and avoid detection by Digicel-Haiti (and 

deactivation of the associated SIM cards).

13

As I have stated earlier in this trial, UPM’s use of bypass or RLYH, if done 

without also using human behavior simulation software, is not fraud. Thus, if DigicelHaiti has not proven by clear and convincing evidence that UPM used human 

behavior simulation software to facilitate sending calls to Digicel-Haiti’s network and 

that UPM did that with the intent to deceive Digicel Haiti or to hinder Digicel Haiti’s 

ability to identify and block SIM cards being used by other than natural persons for 

individual calls, then your verdict must be for the defendants.14

Fraud by active concealment means any words or acts that 

createintentionally conceals a material matter either by creating a false impression 

covering up the truth or that removes or hinders an opportunity that might 

12

 There is no allegation that Mr. Tran, individually, used human behavior simulation software; 

rather, the claim is only that UPM, the corporation, implemented such HBS software in terminating 

calls to Digicel-Haiti's network in Haiti. It would be confusing and misleading to instruct the jury 

that one or both defendants terminated calls to Haiti, when only UPM did. See e.g., Opinion and 

Order (ECF #294), p. 5, 31; Opinion and Order on Digicel-Haiti’s Motions for Summary Judgment 

Against UPM's Counterclaims and to Exclude UPM's Expert Witness, and UPM's Motion for 

Partial Summary Judgment (ECF #384), p. 8. 

13 Opinion and Order (ECF #294), p. 5. 

14 Opinion and Order (ECF #294), p. 31. 

Exhibit 2 

Page 23 of 40 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 54 of 77
otherwise have led to the discovery of a material factinformation.

15 Fraud by active 

concealment is characterized by deceptive acts or contrivances intended to hide 

information, mislead, avoid suspicion, or prevent or delay further inquiry into a 

material matter.

To prevail on its claim of fraud by active concealment, Digicel-Haiti must 

prove each of the following five elements by clear and convincing evidence:

(1) A defendant made a false representation of a material matter;

(2) A defendant knew that the representation was false;

(3) A defendant intended to mislead the plaintiff;

(4) The plaintiff reasonably relied on the false representation; and

(5) The plaintiff was damaged as a direct result of its reliance on the false 

representation; in other words, the plaintiff must prove that its damages were 

caused by its reliance on the false representation.

A person can make a false representation of a material matter by actively 

concealing the truth. In other words, the law considers the active concealment of 

the truth to be making a false representation. A false representation by active 

concealment occurs when a person, by any word or act, conceals a material matter 

either by creating a false impression covering up the truth, or by removing or 

15 Paul v. Kelley, 42 Ore. App. 61, 65-66, 599 P.2d 1236 (1979), quoting Prosser, Law of Torts, § 

106, at 695 (4th ed. 1971); see also Caldwell v. Pop's Homes, Inc., 54 Or. App. 104, 113, 634 P.2d 

471 (1981) (same); UPM Instructions, p. 14.

Exhibit 2 

Page 24 of 40 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 55 of 77
hindering an opportunity that might otherwise have led to the discovery of the 

truth.

A fraudulent representation must be both false and material.16 A 

misrepresentation of a “material matter” is one that would be likely to affect the 

conduct of a reasonable person regarding a transaction with another person.17 

Additionally, a fraudulent misrepresentation of a material matter is one that is 

made by the defendant with knowledge of its falsity or ignorance of its truth.18

Fraudulent misrepresentation by active concealment of a material fact 

requires that the defendant suppress the truth with the intent to deceive the plaintiff. 

"Intent" means either: (1) the defendant desired to induce the plaintiff to act, or 

refrain from acting, in reliance on the misrepresentation; or (2) the defendant 

believed that the plaintiff would act, or refrain from acting, in reliance on the 

misrepresentation with substantial certainty.19

16 UPM Instructions, p. 13, citing Onita Pac. Corp. v. Trs. of Bronson, 122 Or. App. 452, 456, 858 

P.2d 453, 456 (1993) ("To establish fraud, plaintiffs must show that defendants made a false and 

material representation...").

17 Id. 

18 UPM Instructions, p. 15, citing Webb v. Clark, 274 Or. 387, 391, 546 P.2d 1078 (1976) (quoting 

Rice v. McAlister, 268 Or. 125, 128, 519 P.2d 1263 (1974)); Smith v. United States Escrow Corp., 

89 Or. App. 224, 229, 748 P.2d 168 (1988); Strawn v. Farmers Ins. Co., 350 Or. 336, 352, 258 P.3d 

1199, adh'd to on recons, 350 Or. 521, 256 P.3d 100 (2011)). 

19 UPM Instructions, p. 16, citing Restat 2d of Torts, §§ 531, 550; Elizaga v. Kaiser Found. Hosps., 

Inc., 259 Or. 542, 548, 487 P.2d 870 (1971) (citing Prosser, Torts (3d ed.) 711 at 715-719); United 

States Nat'l Bank v. Fought, 291 Or. 201, 223-26, 630 P.2d 337 (1981); Riley Hill Gen. Contractor, 

Inc. v. Tandy Corp., 303 Or. 390, 406-07, 737 P.2d 595 (1987); Caldwell v. Pop's Homes, Inc., 54 

Or. App. 104, 112, 634 P.2d 471 (1981); UCJI 40.06). 

Exhibit 2 

Page 25 of 40 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 56 of 77
The plaintiff must have (1) actually relied on the fraudulent 

misrepresentation by active concealment and (2) the plaintiff's reliance on the 

misrepresentation must have been reasonable. As to the first element, the plaintiff 

must have in fact relied upon the misrepresentation in acting or refraining from 

acting, and such reliance must have resulted in their loss. The plaintiff must have 

relied on the truth of the misrepresentation itself, and their reliance upon its truth 

must be a substantial factor in inducing them to act or to refrain from action.20

Then, if the plaintiff actually relied on the misrepresentation, their reliance must 

have been reasonable.21In determining whether a plaintiff’s reliance on alleged 

active concealment of the truth by a defendant was reasonable, you must consider 

the totality of the parties’ circumstances and conduct, including the sophistication of 

the party asserting fraud.

22 In doing so, you may consider factors such as:

(a) any information already known or obvious to the plaintiff; and (b) to 

confirm or refute the defendant's representation, as well as any resources or 

policies plaintiff had, or could have had, to detect such misrepresentations 

(b) the relative status, knowledge, experience, resources and sophistication 

of the plaintiff and the defendant in the telecommunications industry 

20 Restat 2d of Torts, §§ 537, cmt. b, 546, cmt. b, 548 (1977)

21 Restat 2d of Torts, §§ 537(b), 547; Vasquez-Lopez v. Ben. Or., Inc., 210 Or. App. 553, 580, 152 

P.3d 940 (2007); UPM Instructions, p. 17 

22 Vasquez-Lopez, 210 Or. App. at 580 (2007); Or. Pub. Emples. Ret. Bd. v. Simat, Helliesen & 

Eichner, 191 Or. App. 408, 428, 83 P.3d 350 (2004); UPM Instructions, p. 17. 

Exhibit 2 

Page 26 of 40 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 57 of 77
(c) the previous experience of the plaintiff and defendant in similar 

telecommunications transactions.

If , specifically in identifying and blocking potentially misused SIM Cards; 

(d) the plaintiff’'s ability to obtain information that would reveal the truth 

that the defendant actively concealed; 

(e) the parties’ respective access to specialists, means of information, and 

qualifications to engage in telecommunications operations; 

(f) whether the plaintiff took reasonable precautions to safeguard its own 

interests; 

(g) Whether the representation was specific or general; and 

Whether the representation was a statement of fact or the expression of an 

opinion.23 The plaintiff must have suffered a pecuniary loss (i.e., they must have 

been "damaged") as a direct result of their justifiable reliance on the defendant's 

material and false misrepresentation by active concealment using human behavior 

simulation software.24 If the plaintiff’s loss or injury would not have occurred but 

for a defendant’s wrongful conduct, then the defendant’s conduct caused the 

plaintiff’s loss or injury. On the other hand, if the plaintiff’s loss or injury still 

23 UPM Instructions, p. 17-18. 

24 UPM Instructions, p. 19, citing Knepper v. Brown, 345 Or. 320, 329-332, 195 P.3d 383 (2008); 

Strawn v. Farmers Ins. Co., 350 Or. 336, 352, 258 P.3d 1199, adh'd to on recons, 350 Or. 521, 256 

P.3d 100 (2011); Dizick v. Umpqua Cmty. Coll., 287 Or. 303, 311, 599 P.2d 444 (1979); Riley Hill 

Gen. Contractor, Inc. v. Tandy Corp., 303 Or. 390, 405, 737 P.2d 595 (1987); Restat 2d of Torts, 

§§ 550, 546, 548A). 

Exhibit 2 

Page 27 of 40 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 58 of 77
would have occurred even without the defendant’s wrongful conduct, the 

defendant’s conduct did not cause the plaintiff’s loss or injury.

Instruction No. 22: Compensatory Damages

It is the duty of the court to instruct you about the measure of damages. By 

instructing you on damages, the court does not mean to suggest for which party 

your verdict should be rendered.

If you find for the plaintiff, you must then determine the plaintiff’s damages, 

if any, sustained as a direct result of the defendant's active concealment using 

human behavior simulation software.

25 The plaintiff has the burden of proving 

damages by a preponderance of the evidence. “Damages” means the amount of 

money that will reasonably and fairly compensate the plaintiff for any injury you 

find was caused by a defendant. Such damages are called “compensatory 

damages.”

In deciding the amount of compensatory damages, you should consider the 

following:

1. any of Digicel-Haiti’s lost profits caused by a defendant’s 

wrongful conduct; and

25 UPM Instructions, p. 25; see also e.g., Oksenholt v. Lederle Labs., Div. of Am. Cyanamid Corp., 

294 Or. 213, 223, 656 P.2d 293 (1982), citing Cluck et ux v. Fish et al, 230 Or 63, 368 P2d 626 

(1962); Knepper v. Brown, 345 Or. 320, 330-332, 195 P.3d 383 (2008), citing Restatement 

(Second) of Torts § 548A, cmts. A-b (1977), W. Page Keeton, Prosser and Keeton on Torts § 110 

at 767 (5th ed. 1984); Restat. 2nd of Torts §§ 550, 546. 

Exhibit 2 

Page 28 of 40 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 59 of 77
2. any costs reasonably incurred by Digicel-Haiti in attempting to 

reduce, or mitigate, its lost profits directly caused by a defendant’s wrongful 

conduct. Digicel-Haiti may recover only those damageslosses that were caused 

byit actually suffered as a result of a defendant’s wrongful conduct. 26 Further, the 

only wrongful conduct at issue in this trial is Digicel-Haiti’s allegation that UPM 

used human behavior simulation software in placing or connecting calls to DigicelHaiti’s network in Haiti with the requisite intent to deceive Digicel Haiti or to 

hinder Digicel Haiti’s ability to identify and block SIM cards being used by other 

than natural persons for individual calls.27 You may not award damages to DigicelHaiti for harm that was not caused by UPM's use of human behavior simulation 

software.

The plaintiff’s damages may consist of lost profits, the costs of mitigating 

losses, or both. In order to recover any damages, the plaintiff must establish the 

existence and amount of damages sustained as a result of a defendant's wrongful 

conduct with reasonable certainty,28

To recover for lost profits, the plaintiff must first prove that there was a some

loss exists, and that the defendant’s wrongful conduct caused that loss.29 Those 

26 Id. 

27 Opinion and Order (ECF #294), p. 31. 

28 Parker v. Harris Pine Mills, Inc., 206 Or. 187, 205, 291 P.2d 709 (1955).

29 UCJI No. 77.01 (Damages for Lost Profits); UPM Instructions, p. 25. 

Exhibit 2 

Page 29 of 40 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 60 of 77
elements must be proven by clear and convincing evidence. If the plaintiff proves 

that a defendant caused the plaintiff to suffer lost profits by clear and convincing 

evidence, the plaintiff must then prove the existence and amount of its lost net 

profits that is reasonably probable by a preponderance of the evidence.30 The 

plaintiff may prove the amount of lost net profits with a reasonable estimate based 

on the evidence.31 The plaintiff need not prove the exact amount of its lost profits, 

but the plaintiff is not entitled to recover damages based on speculation, unverifiable 

estimates of loss, or guesswork unsupported by the evidence and reasonable 

probability.32

To decide the amount of lost net profits, first decide the total amount of 

money the plaintiff likely would have earned but did not had there not been fraud 

by active concealment committed by a defendant. Then, subtract from that amount 

what would have been (1) the plaintiff’s costs of doing businessterminating those 

calls to earn that money; (2) the $0.05 per minute fee that it would have been 

30 See e.g., Riley Hill Gen. Contractor, Inc. v. Tandy Corp., 303 Or. 390, 392-93, 737 P.2d 595 

(1987); Cruz Dev., Inc. v. Yamalova, 174 Or. App. 494, 497-98, 26 P.3d 174 (2001); Pearson v. 

Schmitt, 259 Or. 439, 442, 487 P.2d 84 (1971). 

31 Id. 

32 UPM Instructions, p. 25; see also JH Kelly, Ltd. Liab. Co. v. Quality Plus Servs., 305 Or. App. 

565, 585, 472 P.3d 280 (2020), citing Willamette Quarries v. Wodtli, 308 Ore. 406, 412, 781 P2d 

1196 (1989) ("Lost profits or sales, however, are not proved merely by testimony of unverifiable 

expectations of profits."); Buck v. Mueller, 221 Ore. 271, 282, 351 P2d 61 (1960) ("[L]oss of profits 

must not be uncertain and speculative."); Schafer v. Sunset Packing Co., 256 Or. 539, 544, 474 P.2d 

529 (1970) ("the degree to which such proof will succeed in establishing the reasonable certainty of 

profits must depend in large measure upon the circumstances of the particular case and thus will 

escape hard and fast rules of general applicability," citing 64 Harv L Rev 318, 319 (1950)). 

Exhibit 2 

Page 30 of 40 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 61 of 77
required to pay the Haitian government for each minute; and (3) the amount of 

money that UPM and/or Digicel-Haiti's roaming partners in the United Stated paid 

plaintiff for the calls terminated successfully on to Digicel-Haiti's network using 

human behavior simulation software. What remains are lost profits, which may be 

awarded as compensatory damages.

33

As I previously explained, the plaintiff also may recover the costs that it 

reasonably incurred in trying to reduce, or mitigate, its losses caused by a 

defendant’directly arising from UPM's wrongful conduct. using HBS software

Instruction No. 23: Punitive Damages

If you find for the plaintiff on its fraud claim and you have determined that 

the plaintiff is entitled to an award of compensatory damages, you may, but are 

not required to, also award punitive damages.34 The purposes of punitive damages 

are to punish a defendant's misconduct and to deter similar acts in the future. 

Punitive damages may not be awarded to compensate a plaintiff. for economic

losses caused by defendant's wrongful conduct.35 Punitive damages should only be 

33 UPM Instructions, p. 25.

34 UPM Instructions, p, 28; see also Klinicki v. Lundgren, 298 Or. 662, 687, 695 P.2d 906, 922 

(1985) ("Punitive damages cannot exist alone."); Schwarz v. Philip Morris USA, Inc., 272 Or. App. 

268, 283, 355 P.3d 931 (2015)l UCJI No. 75.02 (Punitive Damages—General). 

35 Klinicki v. Lundgren, 298 Or. 662, 686, 695 P.2d 906, (1985) ("actual damages are to compensate 

the injured party, whereas punitive damages are "to give bad actors a legal spanking" (citing Lane 

County v. Wood, 298 Or 191, 203, 691 P2d 473 (1984)); remedial damages "are different from 

punitive damages, which are intended to punish the tortfeasor and not to compensate the injured 

person," Busch v. McInnis Waste Sys., 366 Or. 628, 666, 468 P.3d 419 (2020), citing DeMendoza v. 

Huffman, 334 Or. 425, 442, 445-46, 51 P.3d 1232 (2002),

Exhibit 2 

Page 31 of 40 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 62 of 77
awarded if the defendant's culpability, after having paid compensatory damages, is 

so reprehensible as to warrant the imposition of further sanctions to achieve 

punishment or deterrence.36

The plaintiff has the burden of proving by clear and convincing evidence that 

punitive damages should be awarded and, if so, the amount of any punitive damages.

You may award punitive damages against a defendant if the plaintiff shows by 

clear and convincing evidence that the defendant either: (a) has shown a reckless 

and outrageous indifference to a highly unreasonable risk of harm and has acted 

with a conscious indifference to the health, safety, and welfare of others; or(b) has 

acted with malice.37 “Malice” means intentionally doing an injurious or wrongful 

act without justification or excuse. As I previously explainedThis includes 

committing an act with a bad motive, or done so recklessly as to be in disregard of 

social obligations, or done wantonly, maliciously, or wickedly.38 Again, clear and 

convincing evidence is evidence that makes you believe that the truth of the claim 

is highly probable.

Evidence has been received of conduct by the defendant occurring outside 

36 Schwarz, 272 Or. App. at 283, quoting State Farm Mutual Automobile Insurance Co. v. Campbell, 

538 US 408, 123 S Ct 1513, 155 L Ed 2d 585 (2003). 

37 UPM Instructions, p. 28; UCJI No. UCJI No. 75.02 (Punitive Damages—General), COMMENT

("Read both the recklessness and the malice standards only if the plaintiff alleges both and submits 

both to the jury."); see also e.g., Navas v. City of Springfield, 122 Or. App. 196, 201, 857 P.2d 867 

(1993); Neikes v. Ticor Title Co., 291 Or. App. 720, 727-28, 423 P.3d 102 (2018).

38 UPM Instructions, p. 32 (UCJI 75.02C (Punitive Damages—Malice Defined (unmodified)).

Exhibit 2 

Page 32 of 40 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 63 of 77
the State of Oregon.39 This evidence may be considered in evaluating the 

reprehensibility of the defendant’s conduct occurring in Oregon if the out-of-state 

conduct is reasonably related to the conduct of the defendant directed toward the 

plaintiff in Oregon.40

You may not award punitive damages against the defendant based on 

evidence of out-of-state conduct that was lawful in the state where it occurred (i.e., 

Oregon).41 Further, when considering reprehensibility, you may not consider 

conduct of the defendant, wherever it might have occurred, that is not similar to the 

conduct upon which you found the defendant liable to the plaintiff.42There is no 

fixed standard for determining the amount of punitive damages, and you are not 

required to award punitive damages. If you decide to award punitive damages, you 

should consider all the following, separately for each defendant, in determining the 

amount: (a) how reprehensible was that defendant’s conduct, considering the 

39 Id., p. 30-31 (UCJI No. 75.02A (Punitive Damages—Out-of-State Conduct) (unmodified) and 

UCJI No. 75.02A (Punitive Damages—Harm to Others) (unmodified)); see also UCJI No. 75.02A 

and 75.02B, CAVEAT ("This instruction should not be used unless evidence has been received of 

out-of-state conduct by the defendant. If it has been received, the jury must be instructed that it may 

not use this type of evidence to punish a defendant for conduct that was lawful in the jurisdiction 

where it occurred. State Farm Mutual Automobile Insurance Co. v. Campbell, 538 US 408, 421–22, 

123 S Ct 1513, 155 L Ed2d 585 (2003)." (emphasis in original)); UCJI No. 75.02 CAVEAT ("It may 

be necessary to instruct the jury on certain other federal constitutional limitations on punitive 

damages. See UCJI 75.02A (jury may not punish for out-of-state harm); UCJI 75.02B (jury may not 

punish for harm to others)."). 

40 Id.

41 Id. ("(i.e., Oregon)" added).

42Id.; see also id., p. 28 (rephrasing UCJI No. 75.02A). 

Exhibit 2 

Page 33 of 40 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 64 of 77
nature of that conduct and the defendant’s motive; (b) is there a reasonable 

relationship between the amount of punitive damages and the plaintiff’s harm; (c) 

has that defendant taken remedial measures that are reasonable under the 

circumstances to prevent reoccurrence of the offensive conduct?43 and (cd) in view 

of the defendant’s financial condition, what amount is necessary to punish the 

defendant and discourage future wrongful conduct? You may not punish a 

defendant merely because a defendant has substantial financial resources.

Instruction No. 24: Verdict Form

A form titled “Verdict” has been prepared for you. As you will see, the 

Verdict form has several questions. Some of the questions ask you to answer either 

“Yes” or “No.” To answer those questions, you should place either a check mark 

or an “X” on the applicable line. Other questions ask you to fill in a dollar figure, 

if applicable. More detailed instructions are set forth in the Verdict form in italics.

Those detailed instructions will guide you by telling you which questions you 

must answer, and which questions you must skip, depending on your previous 

answers. As I will explain further after the closing arguments, your decision on 

each question that you answer must be unanimous.

***** CLOSING ARGUMENTS BY COUNSEL *****

43 UPM Instructions, p. 29. 

Exhibit 2 

Page 34 of 40 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 65 of 77
Instruction No. 25: Duty to Deliberate

Before you begin your deliberations, elect one member of the jury as your 

presiding juror. The presiding juror will preside over the deliberations and serve as 

the spokesperson for the jury in court. You should diligently strive to reach 

agreement with all other jurors if you can do so. Your verdict must be unanimous. 

Each of you must decide the case for yourself, but you should do so only after you 

have considered all the evidence, discussed it fully with the other jurors, and 

listened to their views.

It is important that you attempt to reach a unanimous verdict but, of course, 

only if you can do so after having made your own conscientious decision. Do not 

be unwilling to change your opinion if the discussion persuades you that you 

should. But do not come to a decision simply because other jurors think it is right 

or change an honestly held belief about the weight and effect of the evidence 

simply to reach a verdict.

Instruction No. 26: Consideration of Evidence—Conduct of the Jury

Because you must base your verdict only on the evidence received in the 

case and on these instructions, I remind you that you must not be exposed to any 

other information about the case or to the issues it involves. Except for discussing 

the case with your fellow jurors during your deliberations:

1. Do not communicate with anyone in any way and do not let anyone

else communicate with you in any way about the merits of the case or anything to 

Exhibit 2 

Page 35 of 40 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 66 of 77
do with it. This includes discussing the case in person, in writing, by phone, by 

email, by text messaging, or any Internet chat room, blog, website or application, 

including but not limited to Facebook, YouTube, Twitter, Instagram, LinkedIn, 

Snapchat, TikTok, or any other forms of social media. This applies to 

communicating with your family members, your friends, your employer, the 

media or press, and the people involved in this trial. If you are asked or 

approached in any way about your jury service or anything about this case, you 

must respond that you have been ordered by a federal judge not to discuss the 

matter. You must then report the contact to the court.

2. Do not read, watch, or listen to any news or media accounts or 

commentary about the case or anything to do with it. Do not do any research, 

such as consulting dictionaries, searching the Internet, or using any reference 

materials, and do not make any investigation or in any other way try to learn 

about the case on your own. Do not visit or view any place discussed in this case, 

and do not use Internet programs or other devices to search for or view any 

information, person, or place mentioned during the trial. Also, do not do any 

research about the law, court procedures, or the people involved in this case—

including the parties, the witnesses, or the lawyers—until after I have excused 

you as jurors. If you happen to read or hear anything touching on this case in the 

media or elsewhere, turn away and report that to the court as soon as possible.

These rules protect each party’s right to have this case decided only on 

Exhibit 2 

Page 36 of 40 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 67 of 77
evidence that has been presented here in court. Witnesses in court take an oath to 

tell the truth, and the accuracy of their testimony is tested through the trial process. 

If you do any research or investigation outside the courtroom, or gain any 

information through improper communications, then your verdict may be 

influenced by inaccurate, incomplete, or misleading information that has not been 

tested by the trial process. Each of the parties is entitled to a fair trial by an 

impartial jury, and if you decide the case based on information not presented in 

court, you will have denied the parties a fair trial. Remember, you have taken an 

oath to follow the rules, and it is very important that you follow these rules.

A juror who violates these restrictions jeopardizes the fairness of these 

proceedings, and a mistrial could result that would require the entire trial process 

to start over. If any juror is exposed to any outside information, please notify the 

court immediately.

Instruction No. 27: Evidence in Electronic Format

The exhibits received in evidence that are capable of being displayed 

electronically will be provided to you in that form, and you will be able to view 

them in the jury room. A computer, monitor, and related equipment will be 

available to you in the jury room.

A court technician will show you how to operate the computer and other 

equipment; how to locate and view the exhibits on the computer. You also will be 

provided with a paper list of all exhibits received in evidence. You may request a 

Exhibit 2 

Page 37 of 40 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 68 of 77
paper copy of any exhibit received in evidence by sending a note through the 

courtroom deputy, Mary Austad. If you need additional equipment or supplies or 

if you have questions about how to operate the computer or other equipment, you 

may send a note to Ms. Austad, signed by your foreperson or by one or more 

members of the jury.

If a technical problem or question requires hands-on maintenance or 

instruction, a court technician may enter the jury room with the courtroom deputy 

present for the sole purpose of assuring that the only matter that is discussed is the 

technical problem. When the court technician or any non-juror is in the jury room, 

the jury shall not deliberate or discuss the merits of the case. No juror may say 

anything to the court technician or any non-juror other than to describe the 

technical problem or to seek information about operation of the equipment.

The sole purpose of providing the computer in the jury room is to enable 

jurors to view the exhibits received in evidence in this case. You may not use the 

computer for any other purpose. At my direction, technicians have taken steps to 

ensure that the computer does not permit access to the Internet or to any outside 

website, database, directory, or other material. Do not attempt to alter the 

computer to obtain access to such materials. If you discover that the computer 

provides or allows access to such materials, you must inform the court 

immediately and refrain from viewing such materials. Do not remove the computer 

or any electronic data from the jury room, and do not copy any such data.

Exhibit 2 

Page 38 of 40 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 69 of 77
Instruction No. 28: Communication with Court

If it becomes necessary during your deliberations to communicate with me, 

you may send a note through the Courtroom Deputy, also known as a “bailiff,” 

signed by your presiding juror or one or more members of the jury. No member of 

the jury should ever attempt to communicate with me except by a signed writing. I 

will communicate with any member of the jury on anything concerning the case 

only in writing or here in open court. If you send out a question, I will consult with 

the parties before answering it, which may take some time. You may continue 

your deliberations while waiting for the answer to any question. Remember that 

you are not to tell anyone—including me—how the jury stands, numerically or 

otherwise, until after you have reached a unanimous verdict or have been 

discharged. Do not disclose any vote count in any note to the court.

Instruction No. 29: Return of Verdict

After you have reached unanimous agreement on each applicable question 

on the Verdict form, your presiding juror should fill in the form, sign and date it, 

and advise the Courtroom Deputy that you are ready to return to the courtroom.

Exhibit 2 

Page 39 of 40 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 70 of 77
Document comparison by Workshare Compare on Friday, November 11, 2022 

2:59:32 PM

Input:

Document 

1 ID file://F:\STORAGE\LSSe64DOCS\00000736\00702022.000.DOCX 

Description00702022.000 

Document 

2 ID file://F:\STORAGE\LSSe64DOCS\00000736\00702014.000.DOCX 

Description00702014.000 

Rendering 

set Standard

Legend:

Insertion 

Deletion 

Moved from 

Moved to 

Style change 

Format change 

Moved deletion 

Inserted cell

Deleted cell

Moved cell

Split/Merged cell

Padding cell

Statistics:

Count 

Insertions 218

Deletions 38

Moved from 2

Moved to 2

Style changes 0

Format changes 0

Total changes 260

Exhibit 2 

Page 40 of 40 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 71 of 77
Draft dated: October 29, 2022 (Not filed in CM/ECF)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

UNIGESTION HOLDING, S.A.,

d/b/a DIGICEL-HAITI,

Plaintiff,

v.

UPM TECHNOLOGY, INC. and

DUY BRUCE TRAN,

Defendants.

Case No. 3:15-cv-185-SI

VERDICT

We, the Jury, being duly empaneled and sworn, do unanimously find as follows:

1. Did Digicel-Haiti prove by clear and convincing evidence that UPM, Mr. Tran, or both 

engaged in fraud by active concealment by using human behavior simulation software to 

mimic the patterns of individual human callers to disguise the fact that they were a 

business using multiple SIM cards and terminating multiple calls on Digicel-Haiti's 

network in the context of traditional, or in-country, bypass?

a. UPM YES NO

If you answered “no” to Question 1(a), skip Question 1(b).

b. Mr. 

Tran

YES NO

Exhibit 3 

Page 1 of 6 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 72 of 77
2. Did Digicel-Haiti prove by clear and convincing evidence that UPM, Mr. Tran, or both 

engaged in fraud by active concealment by using human behavior simulation software

to mimic the patterns of individual human callers to disguise the fact that they were a 

business using multiple SIM cards and terminating multiple calls on Digicel-Haiti's 

network in the context of Digicel-Haiti’s RLYH program?

a. UPM YES NO

Exhibit 3 

Page 2 of 6 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 73 of 77
If you answered “no” to Question 2(a), skip Question 2(b).

b. Mr. 

Tran

YES NO

If you answered “yes” to any part of either Question 1 or Question 2, continue to Question 3. If 

you answered “no” to both Question 1(a) and Question 2(a), your verdict is for the Defendants; 

do not answer any more questions; have the presiding juror sign and date this form.

3. Did Digicel-Haiti prove by clear and convincing evidence that it suffered damages caused 

by a Defendant’s fraud by active concealment by using human behavior simulation 

software?

a. Bypass: YES NO

b. RLYH: YES NO

If you answered “yes” to any part of Question 3, continue to Question 4. If you answered “no” 

to both part (a) and part (b) of Question 3, your verdict is for the Defendants; do not answer 

any more questions; have the presiding juror sign and date this form.

4. What is the amount of Digicel-Haiti’s damages, if any, caused by any Defendant’s fraud 

by active concealment by using human behavior simulation software and proven by 

Digicel-Haiti by a preponderance of the evidence?

a. Bypass damages: $ 

b. RLYH damages: $ 

c. Total damages: $ 

Line c must equal the sum of Line a and Line b.

5. Of the amount(s), if any, specified in your answer to Question 4, what percentage is

a. the joint responsibility of UPM and Mr. Tran: %

b. the sole responsibility of UPM: %

Exhibit 3 

Page 3 of 6 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 74 of 77
c. the sole responsibility of Mr. Tran: %

The listed percentages must total 100 percent.

Exhibit 3 

Page 4 of 6 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 75 of 77
6. Did Digicel-Haiti prove by clear and convincing evidence that it should recover 

punitive damages against Defendant UPM?

YES NO

If you answered “yes” to either Question 1(b) or Question 2(b) and Question 3, continue to 

Question 7. If you answered “no” to both Question 1(b) and Question 2(b), skip to Question 8.

7. Did Digicel-Haiti prove by clear and convincing evidence that it should recover 

punitive damages against Defendant Mr. Tran?

YES NO

If you answered “yes” to either Question 6 or Question 7, continue to Question 8. If you 

answered “no” to both Question 6 and Question 7, do not answer any more questions; have the 

presiding juror sign and date this form.

8. What is the total amount of punitive damages that Digicel-Haiti should recover 

against either or both Defendants?

$

9. Of the amount, if any, specified in your answer to Question 8, what percentage is

a. the joint responsibility of UPM and Mr. Tran: %

b. the sole responsibility of UPM: %

c. the sole responsibility of Mr. Tran: %

The listed percentages must total 100 percent.

Your deliberations are now complete. Please have the presiding juror date and sign this form 

and inform the Courtroom Deputy that you are ready to return to the Courtroom.

DATED this day of November, 2022.

Presiding Juror

Exhibit 3 

Page 5 of 6 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 76 of 77
Document comparison by Workshare Compare on Friday, November 11, 2022 

3:09:31 PM

Input:

Document 

1 ID file://F:\STORAGE\LSSe64DOCS\00000736\00702024.000.DOCX 

Description00702024.000 

Document 

2 ID file://F:\STORAGE\LSSe64DOCS\00000736\00702019.000.DOCX 

Description00702019.000 

Rendering 

set Standard

Legend:

Insertion 

Deletion 

Moved from 

Moved to 

Style change 

Format change 

Moved deletion 

Inserted cell

Deleted cell

Moved cell

Split/Merged cell

Padding cell

Statistics:

Count 

Insertions 23

Deletions 0

Moved from 0

Moved to 0

Style changes 0

Format changes 0

Total changes 23

Exhibit 3 

Page 6 of 6 

Case 3:15-cv-00185-SI Document 506 Filed 11/11/22 Page 77 of 77