of comments to the WideBand source code. (Id. at 12.) On May 15, 2008, the court affirmed Judge Nuffer's order and specifically upheld the grant of the adverse jury instruction but stated that the "exact wording of the instruction will not be finally determined until trial." (Docket No. 860 at 1.) The May 15, 2008 Order stated "the court will instruct the jury that among other things, Dr. Yang was not truthful in his sworn deposition in this action and that his dishonesty may be used in weighing his credibility." (Id. at 2.)
During the October/November 2008 trial, the court read the adverse jury instruction concerning Dr. Yang's perjury to the jury, right before Dr. Yang testified.[8] The adverse instruction, in its final version, was read to the jury as follows:
THE COURT: ALL RIGHT. I WANT TO TELL YOU AN INSTRUCTION. PARTIES IN CIVIL CASES SUCH AS THIS HAVE OBLIGATIONS TO PROVIDE INFORMATION IN RESPONSE TO REQUESTS FROM THE OTHER PARTY AND TO ANSWER QUESTIONS TRUTHFULLY UNDER OATH IN DEPOSITIONS WHERE PARTIES MAY ASK QUESTIONS OF WITNESSES. DR. JUN YANG DID NOT ANSWER SOME QUESTIONS TRUTHFULLY REGARDING - RELATED TO THE EXISTENCE OF COMMENTS TO THE WIDEBAND SOURCE CODE UNDER OATH IN HIS DEPOSITION. YOU ARE THE SOLE JUDGES OF CREDIBILITY OF PARTIES AND WITNESSES, BUT YOU MAY CONSIDER THAT THE COURT HAS FOUND THAT DR. JUN YANG DID NOT ANSWER SOME QUESTIONS TRUTHFULLY UNDER OATH IN HIS DEPOSITION RELATED TO THE EXISTENCE OF COMMENTS TO THE WIDEBAND SOURCE CODE. (Oct. 24, 2008 Trial Tr. at 226 (Docket No. 1352).)
c. TRO Regarding Asset Sale
In the meantime, on June 17, 2008, months before trial, ClearOne filed a Motion *1256 for a Temporary Restraining Order and Preliminary Injunction Regarding Asset Disposition (the "TRO Motion"). The TRO Motion was brought in response to a transaction between Defendant WideBand Massachusetts ("WideBand") and WideBand Georgia. Donald Bowers, Lonny Bowers's father, was the principal owner of WideBand Georgia.
The transaction concerning ClearOne was at least partially reflected in a document titled "Agreement for Purchase and Sale of Business Including its Equipment, Software, and All Other Applicable Intellectual Property" (the "WideBand Sale Agreement"). (At that time, Donald Bowers was loaning a substantial amount of money to the WideBand Defendants (including the corporate defendants WideBand and Versatile DSP, Inc.) to pay their legal fees, and the Agreement was somehow connected to his ability to collect on the debt.)
The TRO Motion sought certain orders from the court to stop the transaction reflected in the WideBand Sale Agreement, or to the greatest extent possible, stop any further performance of that transaction by WideBand, Andrew Chiang, Jun Yang, Lonny Bowers and Versatile DSP, Inc.
At that stage in the litigation, the court had already found, through the 2007 preliminary injunction hearing and order, that ClearOne had established a likelihood of success on the merits, including a preliminary finding that the source and object code held by the WideBand Defendants was indeed ClearOne's protected trade secret, the Honeybee