Conference on Trade-Secret and Advice-of-Counsel Instructions
124 linesSAN JOSE, CALIFORNIA DECEMBER 17, 2021 P R O C E E D I N G S
(COURT CONVENED AT 8:36 A.M.)
(JURY OUT AT 8:36 A.M.)
JUDGE DAVILA: WE'RE ON THE RECORD IN THE HOLMES MATTER. ALL COUNSEL ARE PRESENT. MS. HOLMES IS PRESENT. WE'RE OUTSIDE OF THE PRESENCE OF THE JURY. BEFORE WE BRING THE JURY IN, I JUST WANTED TO TALK ABOUT A COUPLE OF THINGS THAT CAME TO MY ATTENTION YESTERDAY, AND I HAVE SOME QUESTIONS FOR COUNSEL. MR. DOWNEY, THIS INVOLVES YOUR ARGUMENT, SIR. I GUESS I NEED SOME HELP ON YOUR ARGUMENT. IT APPEARS THAT DURING YOUR ARGUMENT YOU TALKED ABOUT TRADE SECRETS, AND PLEASE RECALL THAT DURING OUR DISCUSSION ABOUT JURY INSTRUCTIONS, YOU -- YOUR TEAM INFORMED US THAT, THE COURT AND YOUR COLLEAGUE OPPOSITE, THAT YOU'D LIKE TO WITHDRAW THE TRADE SECRET INSTRUCTION.
MR. DOWNEY: YES, YES.
JUDGE DAVILA: WHICH WAS DONE. I GRANTED THAT. NOW IT APPEARS THAT THE ISSUE OF TRADE SECRETS IS IN FRONT OF THE JURY THROUGH YOUR ARGUMENT. NOT EVIDENCE, I RECOGNIZE THAT. CONCURRENT WITH THAT IS -- AND I'M CURIOUS ABOUT THERE'S A MIL, I THINK IT WAS NUMBER 5, THAT TALKED ABOUT ADVICE OF COUNSEL AND THE REQUIREMENTS FOR ADVICE OF COUNSEL. AND IT SEEMS LIKE WE'RE CLOSE TO THAT NOW FROM YOUR ARGUMENT.
MR. DOWNEY: YEAH. YOUR HONOR, I THINK WHAT THE ARGUMENT CONVEYED RELATES NOT TO EVEN THE ACCURACY OF THE VIEW WHAT A TRADE SECRET IS, BUT RATHER JUST, WITHIN THE COMPANY, WHAT THEY UNDERSTOOD UNDER THEIR POLICY WAS A TRADE SECRET. AND SO IT'S AN ISSUE THAT REALLY GOES TO INTENT, NOT TO THE ACCURACY OR TO THE FULLNESS OF ANY ADVICE. WE WOULD REQUEST -- WOULDN'T REQUEST AN ADVICE OF COUNSEL INSTRUCTION WITH THAT, NOR WOULD WE ASK FOR AN INSTRUCTION ON THE ELEMENTS BECAUSE I THINK MS. HOLMES IS CONTAINED IN THE POLICY MEMO AND WHICH I REFERENCED DURING ARGUMENT YESTERDAY.
JUDGE DAVILA: ARE YOU ADVANCING A TRADE SECRETS DEFENSE?
MR. DOWNEY: WELL, I'M ADVANCING IT AS AN INTENT DEFENSE ONLY, WHICH IS TO EXPLAIN THE REASONS THAT THE DEFENDANT ACTED AS SHE DID. I DON'T THINK THERE'S PER SE A TRADE SECRET DEFENSE IN THIS CONTEXT, BUT I'M NOT SEEKING THE COURT'S IMPRIMATUR THAT THAT IS A -- THAT HER UNDERSTANDING WAS CORRECT OR INCORRECT. I'M JUST INTRODUCING THE EVIDENCE AND ARGUING ABOUT THE EVIDENCE THAT IS PART OF THE RECORD.
JUDGE DAVILA: THANK YOU. MY CONCERN IS THAT THE JURY, THEY'VE HEARD US TALK ABOUT, YOU TALK ABOUT TRADE SECRETS BOTH IN YOUR EXAMINATIONS AND CROSS-EXAMINATIONS -- AND I'M GOING TO ASK THE GOVERNMENT'S THOUGHTS ON THIS, TOO -- BUT IT OCCURRED TO ME THAT THIS JURY HAS BEEN -- HAS HEARD THIS TERM "TRADE SECRETS" AS WITNESSES HAVE DESCRIBED IT, AS THE LAWYERS HAVE DESCRIBED IT, BUT THEY WILL NOT HAVE ANY INSTRUCTION FROM THE COURT AS TO WHAT A TRADE SECRET IS SUCH THAT THAT COULD GUIDE THEIR DELIBERATIONS. THAT'S THE CONCERN I HAVE AS THE JUDICIAL OFFICER MAKING SURE THAT THE JUDGE HAS -- EXCUSE ME, THE JURY HAS SUFFICIENT INFORMATION SUCH THAT THEY CAN DELIBERATE FULLY ON THE ISSUES BEFORE THEM. THE TRADE SECRETS INSTRUCTION THAT WAS OFFERED BY YOU WOULD SUGGEST THAT THAT, AT LEAST INITIALLY, WAS AN ISSUE THAT YOU FELT, YOUR TEAM FELT, THAT THE COURT SHOULD INSTRUCT ON BECAUSE THAT WAS GOING TO BE OF SOME MOMENT IN THE CASE. WHEN YOU WITHDREW THAT INSTRUCTION, I SUPPOSE A REASONABLE INFERENCE COULD BE THAT THAT'S NO LONGER THE CASE, THAT THAT WOULDN'T BE AT LEAST BECAUSE WE WOULDN'T NEED TO INSTRUCT THE JURY AS TO TRADE SECRET ISSUES. AND NOW AT THIS JUNCTURE, AND PLEASE RECALL THAT THE EXHIBIT THAT WE'VE REFERENCED, WHAT IS IT, 105? I WAS LOOKING AND I WAITED ON MY COMMENTS BECAUSE I WANTED TO READ THE TRANSCRIPT AGAIN LAST NIGHT.
MR. DOWNEY: YES.
JUDGE DAVILA: I COULDN'T RECALL IF YOU HAD ACTUALLY UTTERED THE PHRASE "ADVICE OF COUNSEL" OR NOT, AND YOU DIDN'T.
MR. DOWNEY: NO, I DIDN'T.
JUDGE DAVILA: IT'S 15055.
MR. DOWNEY: YES.
JUDGE DAVILA: AND WE HAD SOME DISCUSSION ABOUT THIS, AND THE GOVERNMENT OBJECTED ON RULE 16 GROUNDS AND WE HAD SOME DISCUSSION ABOUT THIS AND IT ULTIMATELY WAS ADMITTED. AND THAT'S THE FOCUS OF BACK TO THIS TRADE SECRET. SO I'M JUST CURIOUS, NOW THIS JURY HAS HEARD TRADE SECRETS, WHAT THEY KNOW FROM TRADE SECRETS IS FROM THAT DOCUMENT, WHICH ADMITTEDLY IS A DRAFT, I UNDERSTAND THAT, BUT WILL THERE BE JURY CONFUSION, JUROR CONFUSION REGARDING THE ISSUE OF TRADE SECRETS AND WHETHER OR NOT THEY NEED TO BE INFORMED, INSTRUCTED AS TO A TRADE SECRET AND HOW THAT COMES INTO PLAY WITH ANY GOOD FAITH ARGUMENT, ET CETERA? THAT'S THE QUESTION.
MR. DOWNEY: YEAH, I THINK THE DYNAMICS OF WHERE WE ARE ON THIS, YOUR HONOR, IS THAT, AS MR. SCHENK SAID IN HIS CLOSING YESTERDAY, THAT THE DISCUSSION AND EXPLANATION OF CERTAIN CONDUCT AS BEING MOTIVATED BY A TRADE SECRET CONCERN WAS A RETROSPECTIVE EXPLANATION. I THINK THE EVIDENCE IS ONLY OFFERED TO SHOW THE STATE OF MIND OF THE DEFENDANT. IT'S NOT REALLY A QUESTION OF WHETHER HER UNDERSTANDING IS CONSISTENT WITH ANY INSTRUCTION THE COURT WOULD GIVE AS TO WHAT A TRADE SECRET IS OR IS NOT. I DON'T THINK THE COURT -- I DON'T THINK THE JURY NEEDS TO RESOLVE THAT QUESTION. I THINK WHAT THE JURY NEEDS TO RESOLVE IS, IN LOOKING AT THE EXHIBIT, DO THEY THINK THAT WAS SOMETHING WHICH INFORMED HER INTENT OR DO THEY THINK IT WASN'T? AND IF THEY THINK IT WAS SOMETHING, ARE HER ACTIONS CONSISTENT WITH WHAT THE POLICY OF THE COMPANY WAS? I THINK -- FOR EXAMPLE, I DON'T KNOW THAT THIS IS THE SITUATION, BUT YOU COULD IMAGINE THE POLICY OF THE COMPANY BEING INCONSISTENT WITH WHAT YOUR HONOR WOULD INSTRUCT, AND I DON'T KNOW WHAT THE BENEFIT WOULD BE IN THAT CASE OF HAVING AN INSTRUCTION ONE WAY OR THE OTHER. SO IT SEEMS TO ME THAT THE COURT GIVING SUCH AN INSTRUCTION DOESN'T ADDRESS A QUESTION THAT THE JURY REALLY NEEDS TO RESOLVE. I THINK WHAT THE JURY NEEDS TO RESOLVE IS BASED ON THE FACTS OF THE CASE.
JUDGE DAVILA: DO I NEED TO TELL THE JURY THAT, LADIES AND GENTLEMEN, TO REMIND THEM THAT THE COMMENTS OF COUNSEL ARE NOT EVIDENCE, AND THAT THERE HAS BEEN NO LEGAL DEFENSE PROFFERED REGARDING TRADE SECRETS?
MR. DOWNEY: I CERTAINLY WOULD VIEW THAT AS CALLING OUT ONE ISSUE FOR COMMENT. I THINK THEY DON'T -- I THINK I HAVE NO ISSUE WITH THEM BEING TOLD DURING INSTRUCTIONS THAT THERE IS NOT AN ISSUE FOR THEM TO RESOLVE AS TO WHAT THE LAW OF TRADE SECRETS IS, THAT EVIDENCE THAT HAS BEEN INTRODUCED ON THAT SUBJECT MERELY IS EVIDENCE INTRODUCED RELEVANT TO THE DEFENDANT'S INTENT. IT SEEMS TO ME THAT I DON'T KNOW THAT THAT IS NECESSARY, BUT I DON'T KNOW WHAT -- I DON'T REALLY KNOW WHAT THE COURT WOULD HOPE THE JURY TO RESOLVE AS A RESULT OF THAT INSTRUCTION OTHER THAN COMPARING IT TO WHAT WAS SAID, WHICH I THINK DOES HAVE THE DIFFICULTY OF RUNNING, POTENTIALLY OF RUNNING SOME PREJUDICE TO THE DEFENDANT.
JUDGE DAVILA: WELL --
MR. DOWNEY: AND I SAY THAT HYPOTHETICALLY, YOUR HONOR. I DON'T KNOW THAT THAT IS TRUE. IT WOULD OBVIOUSLY DEPEND ON THE CONTENT AND SO FORTH.
JUDGE DAVILA: SURE. BUT LET ME FIRST SAY I'M NOT TRYING TO INTERJECT MYSELF IN EITHER OF YOUR CASES HERE.
MR. DOWNEY: YES.
JUDGE DAVILA: BUT, AGAIN, MY POSITION IS MAKING SURE THE JURY IS FULLY INFORMED, THIS CROSSED MY MIND. THERE WERE TWO ISSUES, THE TRADE SECRETS. YOU HAD ADVOCATED INITIALLY FOR AN INSTRUCTION ON TRADE SECRETS. WE HAD DISCUSSION. I LOOKED AT YOUR PROFFER AND YOUR PROFFER SUGGESTED THAT WE ASK THE JURY TO DEFINE CALIFORNIA LAW. YOU RECALL THAT.
MR. DOWNEY: RIGHT, RIGHT.
JUDGE DAVILA: AND I SAID I DON'T THINK THAT'S FAIR. AND YOUR TEAM WITHDREW THAT INSTRUCTION.
MR. DOWNEY: THAT'S RIGHT. I THINK YOUR HONOR WAS ALSO CONCERNED WHAT, WHAT RELEVANCE DOES IT HAVE IF IT DOESN'T INFORM THE FACTS OF THE CASE DIRECTLY.
JUDGE DAVILA: WELL, I'M CONCERNED ABOUT THAT, AND I'M ALSO CONCERNED ABOUT SOMETHING BEING LEFT PREGNANT FOR THE JURY FOR THEM TO DECIDE AN ISSUE BASED ON A LACK OF FULSOME INSTRUCTION AS TO WHAT THEY SHOULD DO. AGAIN, THE ADVICE OF COUNSEL ISSUE IS ONE OF CONCERN. I KNOW THE MIL ORDER SAID IT WAS PREMATURE. THE GOVERNMENT ASKED THAT I GRANT THEIR MOTION SAYING THAT THERE COULD BE NO ADVICE OF COUNSEL DEFENSE. I SAID, WELL, IT'S PREMATURE TO MAKE THAT DECISION NOW. WE HAVEN'T STARTED THE EVIDENCE YET. YOU KNOW WHAT THE FOUNDATIONS ARE BASED ON THE NINTH CIRCUIT'S CASES, AND IF YOU DECIDE TO DO THAT, INTRODUCE AN ADVICE OF COUNSEL DEFENSE, WHICH WOULD GO TO GOOD FAITH, IT'S NOT AN ABSOLUTE DEFENSE, OF COURSE. IT'S SOMETHING THAT THE JURY CAN CONSIDER WHEN THEY CONSIDER INTENT. YOU DIDN'T DO THAT IN YOUR CASE. I DON'T RECALL THAT.
MR. DOWNEY: NOR IS IT MY INTENT TO ASK FOR THAT INSTRUCTION.
JUDGE DAVILA: RIGHT. RIGHT. BUT THERE'S A LITTLE BIT OF A -- ARE WE CLOSE TO THAT? ARE WE IN THAT NEIGHBORHOOD NOW? ARE WE IN THE NEIGHBORHOOD OF TRADE SECRETS? ARE WE IN THE NEIGHBORHOOD OF ADVICE OF COUNSEL SUCH THAT WE NEED TO GIVE DIRECTION TO THE JURY? THAT'S MY CONCERN HERE. LET ME CALL ON THE GOVERNMENT. I DON'T KNOW IF THEY HAVE A COMMENT. MAYBE THEY'LL TELL ME I'M COUNTING TOO MANY ANGELS ON PINHEADS. I DON'T KNOW.
MR. LEACH: CAN THE COURT HEAR ME?
JUDGE DAVILA: I PROBABLY COULD IF YOU SPEAK INTO THIS ONE (INDICATING).
MR. LEACH: I'M TOLD THIS MICROPHONE DOESN'T WORK AND I NEED TO TURN THIS ON SOMEHOW.
MR. DOWNEY: HERE.
MR. LEACH: MR. DOWNEY HAS EXPERIENCE.
JUDGE DAVILA: HE'S GOT EXPERIENCE IN THIS.
MR. LEACH: HOW ABOUT NOW?
JUDGE DAVILA: LOUD AND CLEAR. THANK YOU.
MR. LEACH: THANK YOU, YOUR HONOR. I'LL ADDRESS THIS BECAUSE I WAS HANDLING THE JURY INSTRUCTION ON THIS POINT.
JUDGE DAVILA: YES.
MR. LEACH: OUR CONCERN WITH THE TRADE SECRET INSTRUCTION AT THE TIME WAS, FIRST, IT WAS AN INCOMPLETE STATEMENT OF THE LAW. IT DIDN'T ADDRESS ASPECTS OF THE LAW LIKE THE NOSAL CASE WHICH SAYS THAT YOU CAN PROTECT A TRADE SECRET WITH A CONFIDENTIALITY AGREEMENT. SO OUR OBJECTION WAS THAT IT WAS INCOMPLETE, AND IT ALSO HIGHLIGHTED A PARTICULAR PIECE OF EVIDENCE IN WHAT WE THOUGHT WAS A MISLEADING WAY. OUR POSITION IS THAT THE DISCUSSION ABOUT TRADE SECRET IS THE PRETEXT TO SIMPLY DISCLOSE INFORMATION THAT THEY --
(CELL PHONE RINGING.)
JUDGE DAVILA: DON'T LET HIM BACK IN.
MR. LEACH: AT THE TIME THE ARGUMENT THAT WE CAN'T DISCLOSE TO WALGREENS OR OTHERS WAS A PRETEXT, AND A CONVENIENT REASON NOT TO DISCLOSE WHAT THEY DIDN'T WANT TO DISCLOSE. AND THAT'S OUR ARGUMENT. WE'RE GOING TO ARGUE THAT BASED ON THE FACTS. I DO THINK THAT THE COURT HAS TOUCHED ON AN ISSUE THAT MIGHT BE APPROPRIATE IN TERMS OF ADVICE OF COUNSEL DISASSOCIATED FROM NECESSARILY THE TRADE SECRET ISSUE. THEY HAVEN'T PROFFERED AN ADVICE OF COUNSEL DEFENSE. THERE ARE ELEMENTS FOR ESTABLISHING THE ADVICE OF COUNSEL DEFENSE. WHAT I HEARD FROM MR. DOWNEY RIGHT NOW IS THAT THEY'RE NOT ASSERTING AN ADVICE OF COUNSEL DEFENSE. SO I DO THINK IT MIGHT BE APPROPRIATE TO CRAFT SOMETHING ALONG THE LINES OF WHAT YOUR HONOR WAS SUGGESTING, DISASSOCIATED FROM THE TRADE SECRET ISSUE, BECAUSE I WORRY IF THE COURT IS GOING TO WEIGH IN ON THAT TERM, IT, IT COULD BE PUTTING A STAMP ON A FACTUAL ISSUE THAT I THINK COULD CUT EITHER WAY FOR BOTH PARTIES.
JUDGE DAVILA: YES, I DON'T WANT TO DO THAT. I DON'T WANT TO INTERJECT MYSELF INTO YOUR CASES.
MR. DOWNEY: AND LET ME SAY, I AGREE WITH THAT CONCERN. I THINK AT THIS POINT THE GOVERNMENT'S CASE-IN-CHIEF, JUST TO BE PRACTICAL AND HAVE THIS DISCUSSION ALONG THE LINES THAT MR. LEACH IS DISCUSSING, THEY RAISED THE SUGGESTION THAT A LOT OF BEHAVIORS IN THE COMPANY WERE SECRETIVE AND CONCEALING AND SO FORTH. I'M CERTAINLY ENTITLED TO PRESENT AN UNDERSTANDING THAT THE DEFENDANT HAD OF WHAT SHE UNDERSTOOD AS TO WHAT THE REQUIREMENTS WERE AND SO FORTH WITHOUT REGARD TO ANY ADVICE OF COUNSEL DEFENSE. AND THE JURY HAS EVIDENCE IN FRONT OF IT WHERE IT CAN EVALUATE WHETHER SHE ACTED CONSISTENT WITH THAT UNDERSTANDING OR NOT. I THINK TO INSTRUCT RUNS THE RISK THAT THERE IS, YOU KNOW --
JUDGE DAVILA: WELL, WE'RE HERE IN THIS MORASS NOW BECAUSE THAT'S WHERE THE EVIDENCE HAS TAKEN US. LET ME GET BACK TO MR. LEACH.
MR. DOWNEY: SORRY.
JUDGE DAVILA: NO, NO.
MR. LEACH: THE GOVERNMENT WOULD BE FINE WITH SOME FORM OF INSTRUCTION THAT MS. HOLMES IS NOT ASSERTING AN ADVICE OF COUNSEL DEFENSE AND AN ADVICE OF COUNSEL DEFENSE REQUIRES -- I DON'T HAVE THE MODEL IN FRONT OF ME -- BUT THERE'S ESSENTIALLY THREE ELEMENTS, A FULL DISCLOSURE OF THE FACTS OF THE LAWYER FOLLOWING THE ADVICE AND NOT KNOWING SOME ADDITIONAL INFORMATION. I DON'T THINK THAT INSTRUCTING ON THE NUANCES OF TRADE SECRET LAW WOULD AID THE JURY AT THIS POINT. I THINK IT'S MORE A FACTUAL MATTER. BUT ADDING CLARITY THROUGH THE INSTRUCTIONS THAT THERE'S NO ADVICE OF COUNSEL DEFENSE AT ISSUE I THINK COULD BE BENEFICIAL.
(DISCUSSION OFF THE RECORD.)
JUDGE DAVILA: SO TODAY I WAS CURIOUS WHETHER WE HAD THE CONVERSATION, I WANTED TO HAVE IT, I WAS CURIOUS, MR. DOWNEY, WHETHER YOU WOULD SAY THERE HAS BEEN A FULSOME MEETING OF THE NINTH CIRCUIT REQUIREMENTS IN THE CASE BECAUSE BY THE FACT THAT ON DIRECT EXAMINATION MS. HOLMES INDICATED THAT SHE SPOKE WITH COUNSEL, HOUSE COUNSEL. YOU WOULD TELL ME THAT THAT ACTS AS A WAIVER OF THE PRIVILEGE, WHICH IS ONE OF THE REQUIREMENTS, AND THAT SHE THEN ACTED ON -- THERE MIGHT BE SOME FOUNDATIONAL REQUIREMENTS I THINK THAT ARE MISSING FROM NINTH CIRCUIT CASE LAW ON WHAT THAT IS. I JUST AM CURIOUS WHETHER OR NOT THE JURY IS GOING TO BE -- NOT HAVE ALL OF THE INFORMATION THAT THEY NEED. I DON'T WANT TO SAY MISLED, BUT I WILL SAY NOT HAVE ALL OF THE INFORMATION THAT THEY NEED BASED ON THE ARGUMENT AND ON THE STATE OF THE EVIDENCE.
MR. DOWNEY: WELL, YOUR HONOR, I WOULD TAKE STRONG EXCEPTION TO THAT. I THINK WE HAD DISCUSSION OF WHETHER WE WOULD WANT TO ASSERT AN ADVICE OF COUNSEL DEFENSE. WE DON'T. THE GOVERNMENT RAISED IN ITS CASE, WHICH IT'S PERFECTLY ENTITLED TO DO, THE IMPLICATION THAT A LOT OF THE BEHAVIORS IN THE COMPANY SUGGESTED CRIMINALITY BECAUSE THEY WERE SECRETIVE. WE HAVE INTRODUCED EVIDENCE WHICH DEMONSTRATES THAT THE UNDERSTOOD POLICIES OF THE COMPANY WERE WHAT THEY WERE IN REGARD TO THOSE ISSUES, IN TERMS OF ACCESS AND DIGITAL THINGS, ET CETERA. I THINK THE SUGGESTION THAT WE IN ANY WAY MISLED THEM IS -- HAS NO BASIS IN THE RECORD. AND I APPRECIATE THE ISSUE THAT YOUR HONOR IS DISCUSSING, BUT I WOULD TAKE STRONG EXCEPTION TO THE SENSE THAT THEY'VE BEEN MISLED.
JUDGE DAVILA: WELL, I SAID I'M NOT USING THE WORD "MISLED," BUT SOMETIMES BY SAYING IT, IT SUGGESTS SOMETHING, DOESN'T IT? AND THAT GOES FULL CIRCLE TO THE ARGUMENT HERE I THINK, WHAT I DON'T WANT THE JURY TO HAVE. I LOOKED AT THE TRANSCRIPT ON PAGE 9099 AT LINE 21, "MS. HOLMES HAD RECEIVED GUIDANCE IN CONNECTION WITH THAT WHEN SHE ASKED THAT A POLICY BE PREPARED FOR THE COMPANY."
MR. DOWNEY: RIGHT.
JUDGE DAVILA: "AND THEN THE DRAFT POLICY WAS SENT TO HER. SHE GOT A BASIC OUTLINE OF WHAT THE COMPANY HAD TO DO TO PREPARE TO PRESERVE ITS TRADE SECRETS." THAT'S AT LINES 21 THROUGH 25. AND ON PAGE 9100, YOU REFERENCED 15055, AND THEN YOU SAY AT LINE 2, "HE WAS AN ATTORNEY AT THE COMPANY WHO WAS WORKING ON THE POLICY AND REPORTED AS PART OF THE DRAFT," AND YOU SAY IT'S A DRAFT, AND HE CHARACTERIZED WHY IS SOMETHING A TRADE SECRET? SO HIS DEFINITION OF THAT WAS INTERJECTED --
MR. DOWNEY: RIGHT.
JUDGE DAVILA: -- AT LEAST ARGUED TO THE JURY. AND THEN YOU TALK ABOUT THE MEMO DEFINING AGAIN TRADE SECRETS. I THINK LATER ON YOU SUGGEST THAT YOUR CLIENT RECEIVED IT, MS. HOLMES RECEIVED IT, AND THAT THEN I SUPPOSE INFORMS THE --
MR. DOWNEY: I THINK THAT'S REFLECTED ON THE DOCUMENT, YES.
JUDGE DAVILA: RIGHT. RIGHT. SO THIS IS THE ISSUE THAT I WAS CONCERNED ABOUT. BUT DO I NEED TO TELL THIS JURY WHAT ADVICE OF COUNSEL IS? IF YOU'RE GOING TO ARGUE THAT SHE RELIED ON ADVICE OF COUNSEL, SHE RELIED ON THE MEMO, IS THAT ADVICE OF COUNSEL? AND IS THAT SOMETHING THAT I NEED TO ADDRESS TO THE JURY AS TO WHETHER OR NOT ADVICE OF COUNSEL HAS BEEN ACTUALLY MET HERE?
MR. DOWNEY: I DON'T SEE A BASIS OR REASON TO DO THAT. I HAVEN'T REQUESTED IT. I THINK THE DEFENSE GOES TO INTENT. OBVIOUSLY THE COURT WILL GIVE AN INTENT INSTRUCTION IN ANY EVENT, BUT I THINK IT'S AN UNNECESSARY INSTRUCTION IN THIS CONTEXT.
JUDGE DAVILA: WELL, I'VE GIVEN YOUR TEAM, YOU KNOW, YOUR REQUEST FOR GOOD FAITH OVER VEHEMENT --
MR. DOWNEY: RIGHT.
JUDGE DAVILA: -- OBJECTIONS.
MR. DOWNEY: APPROPRIATELY.
JUDGE DAVILA: YES. AND I'VE GIVEN THE INSTRUCTIONS YOU WANT ON WILLFULLY ALSO. AND MR. LEACH WAS RED IN THE FACE WHEN HE WAS OBJECTING TO BOTH OF THOSE.
MR. DOWNEY: WE'LL KNOW BETTER IN THE FUTURE WHAT THE LAW IS.
JUDGE DAVILA: HE'S GOT THOSE. ANYWAY, MR. LEACH?
MR. LEACH: I THINK AN INSTRUCTION THAT MS. HOLMES IS NOT ASSERTING AN ADVICE OF COUNSEL DEFENSE, AND AN ADVICE OF COUNSEL DEFENSE REQUIRES THE ELEMENTS SET FORTH IN THE MODEL WOULD BE APPROPRIATE. I DO THINK THE ARGUMENT COUNSEL MADE, IF NOT STATING, WAS STRONGLY IMPLYING SHE RELIED ON THE ADVICE OF AN ATTORNEY. I WOULD CAUTION AGAIN A REFERENCE TO TRADE SECRETS BECAUSE IT MIGHT GIVE SOME VALIDITY TO THE DEFENSE THAT ANIMATED THE GOVERNMENT'S CONCERN IN THE FIRST INSTANCE. SO WE THINK AN INSTRUCTION THAT THAT IS NOT AN ISSUE IN THE CASE MIGHT BE APPROPRIATE.
MR. DOWNEY: YOUR HONOR, I THINK THE INSTRUCTIONS AS WE HAVE THEM ARE FINE. I THINK IF THEY'RE GOING TO BE ALTERED IN ANY WAY, EITHER AROUND ADVICE OF COUNSEL OR TRADE SECRETS, I'D WANT TO TALK TO MS. SAHARIA AND OTHERS ON OUR TEAM.
JUDGE DAVILA: SHE'S IN THE ROOM.
MR. DOWNEY: BUT I THINK THAT -- I DON'T SEE THE NEED FOR THEM WHEN WE'RE NOT ARGUING, AND I DON'T THINK IT'S APPROPRIATE TO INFORM THE JURY OF DEFENSES WE'RE NOT ASSERTING. THERE ARE MANY DEFENSES WE'RE NOT ASSERTING IN THIS CONTEXT. AND I THINK TO SUGGEST A POLICY WHICH STATES WHAT THE COMPANY'S POLICY IS AND INFORMS THE DEFENDANT'S INTENT IMPLICATES THE ADVICE OF COUNSEL DEFENSE IS TO SUGGEST IT'S NOT VALID FOR THE INTENT DEFENSE, WHICH I DON'T THINK THERE'S ANY DISPUTE THAT IT IS.
JUDGE DAVILA: SO ARE YOU -- AM I HEARING YOU SAY, "JUDGE, I'M GOING TO STAY AWAY, I'M NOT GOING TO SAY 'ADVICE OF COUNSEL,' I'M NOT GOING TO SAY SHE RELIED ON HER ATTORNEY'S ADVICE"?
MR. DOWNEY: I WASN'T REALLY PLANNING TO RETURN TO THAT SUBJECT.
JUDGE DAVILA: "I'M GOING TO AVOID THAT AND I'M NOT GOING TO GO BACK TO THAT IN MY ARGUMENT. MY ARGUMENT IS WELL BEYOND THAT AND I HAVE OTHER THINGS TO TALK ABOUT IN THE TIME REMAINING."
MR. DOWNEY: YES.
JUDGE DAVILA: AND I WOULD EXPECT THAT AND I WOULD OTHERWISE ENCOURAGE, IF THEY WISH, THE GOVERNMENT IN THEIR REBUTTAL TO SPEAK TO THIS ISSUE IF THEY WISH AND TO SUGGEST THAT THERE'S A DEFICIT IN THE EVIDENCE AS TO ADVICE OF COUNSEL AND THEY MAY NOT CONSIDER IT AND IT'S ARGUMENT, AND IT'S NOT EVIDENCE, BUT IT'S ARGUMENT, AND THAT WOULD SUFFICE TO INFORM THE JURY AS TO ANY CONCERNS THAT THEY MIGHT HAVE ABOUT WHETHER OR NOT THEY SHOULD RELY ON AN ADVICE OF COUNSEL?
MR. DOWNEY: WELL, I DON'T HAVE ANY BURDEN WITH REGARD TO THE INTENT DEFENSE, SO SOME OF THAT ARGUMENTATION I WOULD THINK IS IMPROPER. AND I DON'T THINK IT'S PROPER TO GIVE AN ADVICE OF COUNSEL DEFENSE SO THE REFERENCE OF DEFICIT OF EVIDENCE ON THE PART OF THE DEFENDANT, WHO HAS NO BURDEN, I THINK WOULD BE INAPPROPRIATE. I THINK -- THEY'RE CERTAINLY ENTITLED TO COMMENT ON THE EVIDENCE IN THE RECORD AS TO WHETHER, YOU KNOW, I DON'T KNOW WHAT, AS TO WHETHER OTHER EVIDENCE IN THE RECORD INFORMS HER KNOWLEDGE OR INTENT WITH RESPECT TO THE ISSUE THAT I RAISED. THE TRUTH IS THAT THEY RAISED THIS ISSUE AS TO SOME OF THESE BEHAVIORS FIRST AND WE SIMPLY WERE REBUTTING IT IN THE COURSE OF THE DEFENSE CASE. I DON'T THINK THAT THAT ENTITLES -- IF THEY WANTED TO DEMONSTRATE AS PART OF THEIR BURDEN OF PROOF THAT IT WAS NOT TRADE SECRET, OR A TRADE SECRET CONCERN THAT ANIMATED THAT ACTIVITY, THEY SHOULD HAVE PROVEN IT IN THEIR CASE, OR IN THEIR REBUTTAL CASE FOR THAT MATTER.
JUDGE DAVILA: SO MY QUESTION WAS, SHOULD WE JUST RELY ON THE GOVERNMENT TO -- THEY KNOW WHAT THIS ISSUE IS, AND IF THEY WANT TO TALK ABOUT IT, THEY CAN ADDRESS IT IN THEIR REBUTTAL.
MR. DOWNEY: THEY'VE ADDUCED PLENTY OF EVIDENCE AND THEY CAN ADDRESS IT WITH THAT EVIDENCE.
MR. LEACH: IT CERTAINLY IS AN ISSUE THAT WE INTEND TO ADDRESS ON REBUTTAL, YOUR HONOR, AND I CONTINUE TO ASSERT THAT SOME FORM OF ADVICE OF COUNSEL IS NOT AN ISSUE IN THIS CASE WOULD BE APPROPRIATE. BUT WE'RE PREPARED TO ARGUE IT AS WELL.
JUDGE DAVILA: OKAY. WELL, THANK YOU. I RAISED THIS ISSUE, AS I SAID, BECAUSE I GET TO, I SUPPOSE, BUT THERE ARE ISSUES THAT CAME UP AS I LISTENED YESTERDAY AFTERNOON AND I HAD CONCERN THAT IT MIGHT CREATE AN ISSUE IN THE TRIAL SUCH THAT I WANTED TO ADDRESS IT BEFORE, BEFORE THE CLOSE OF YOUR ARGUMENTS. I, I THINK YOU ALL KNOW AND YOU'RE PROBABLY IN AGREEMENT THAT IT'S REALLY DISADVANTAGEOUS TO THE JURY, TO ALL OF US, TO TRY TO CREATE AN INSTRUCTION AT LITERALLY THE ELEVENTH HOUR. AND THE INSTRUCTIONS THAT WE HAVE MET THREE DAYS ON THEM, EXCHANGED EMAILS ON THEM, THEY'RE A SET PACKAGE NOW, THEY'RE NUMBERED, THEY'RE PAGINATED. I THINK WE HAVE COPIES FOR THE JURY. I EXPECT THAT I'M GOING TO INSTRUCT ABOUT 2:00 O'CLOCK THIS AFTERNOON IS WHAT I'M GUESSING. IT'S JUST DISRUPTIVE TO INTERRUPT THAT PROCESS. BUT I WANTED TO MAKE SURE, AND I RAISE MY CONCERNS HERE BECAUSE THEY'RE SERIOUS CONCERNS. I WAS CONCERNED, MR. DOWNEY, A LITTLE BIT ABOUT, ARE YOU GOING TOO FAR HERE? ARE YOU ARGUING ADVICE OF COUNSEL WITHOUT REALLY SAYING IT? IS IT -- ARE YOU PLANTING THE SEED WITHOUT SAYING SOMETHING? AND I JUST LOOK AT THAT AND I WAS A LITTLE CONCERNED ABOUT THE EQUITIES OF DOING THAT AND INVOLVING THAT IN FRONT OF THE JURY. THAT'S WHY I RAISED THIS.
MR. DOWNEY: WELL, I DON'T HAVE ACCESS, YOUR HONOR, TO THE EXTENT -- I DON'T HAVE ACCESS TO ANY INFORMATION ABOUT THIS SUBJECT THAT THE GOVERNMENT DOESN'T. SO I DON'T SEE THAT IT IS SOME INEQUITY, BUT I TAKE YOUR HONOR'S GENERAL POINT, BUT I DON'T SEE IT AS AN INEQUITY IN THE CASE.
JUDGE DAVILA: WELL, IT'S NOT SO MUCH THE CASE. I THINK IT'S THE ARGUMENT TO THE JURY. LET ME BE FRANK. DOES IT STATE TOO MUCH THAT'S NOT THERE? THAT WAS MY CONCERN. ARE WE TALKING --
MR. DOWNEY: AND MY ONLY POINT, YOUR HONOR, WAS THAT IF, IF THE -- I DON'T HAVE DIFFERENT EVIDENCE THAT SUGGESTS WHAT THE DEFENDANT'S STATE OF MIND WAS ON THESE ISSUES THAT I'M AWARE OF THAT WOULD DISPROVE THE ASSERTIONS THAT I MADE, SO I'M NOT SITTING HERE PREVENTING THE DISCOVERY OF ANY INFORMATION THAT IS, THAT IS CONTRARY TO WHAT I ARGUED, WHICH I THINK IS THE SPIRIT IN SOME WAYS OF, OF CERTAIN REQUIREMENTS AROUND ADVICE OF COUNSEL. THAT'S MY ONLY POINT.
JUDGE DAVILA: WELL, THAT WAS MY POINT. THAT'S WHAT CAUSED MY CONCERN.
MR. DOWNEY: YES.
JUDGE DAVILA: WE'RE DANCING AROUND IT.
MR. DOWNEY: YEAH.
JUDGE DAVILA: WE KNOW THE MUSIC, AND IT SEEMS LIKE YOU'RE DANCING, AND HOW CLOSE ARE YOU GETTING TO THE LINE? ARE YOU WITHIN THE MARGINS OR OUTSIDE OF THE MARGINS?
MR. DOWNEY: NO. I THINK THE DOCUMENTS THAT I KNOW ABOUT FROM THIS WERE PRODUCED BY THE GOVERNMENT AS FAR AS I KNOW.
JUDGE DAVILA: NO, NO, NO, NO. I UNDERSTAND. WE'RE TALKING ABOUT TWO DIFFERENT THINGS HERE, THOUGH. WE'RE TALKING ABOUT THE EVIDENCE HERE AND NOW WE'RE TALKING ABOUT WHAT IS OUR DESCRIPTION OF THE EVIDENCE FOR THE JURY'S BEHALF.
MR. DOWNEY: RIGHT.
JUDGE DAVILA: AND THOSE ARE TWO -- I UNDERSTAND. YOU KNOW, IT'S AN ADVERSARY POSITION. YOU HAVE DIFFERENT OPINIONS ABOUT WHAT THE EVIDENCE IS.
MR. DOWNEY: YEAH.
JUDGE DAVILA: BUT I'M NOT SAYING THAT YOU HAVE GREATER EVIDENCE THAN THEY DO OR THEY THAN YOU. I'M SAYING THE COMMENT, THE FAIR COMMENT ABOUT THE EVIDENCE FOR THE JURY'S INFORMATION IS WHAT I'M CONCERNED ABOUT.
MR. DOWNEY: YES. UNDERSTOOD.
JUDGE DAVILA: ABOUT WHETHER OR NOT IT'S APPROPRIATE TO -- WHETHER I HAVE TO TAKE ANY MEASURE.
MR. DOWNEY: YES.
JUDGE DAVILA: THAT'S MY CONCERN NOW. BUT YOU'VE TOLD ME THAT YOU'VE MOVED WELL ON FROM ANY ADVICE OF COUNSEL.
MR. DOWNEY: I WON'T BE BACK TO THAT SUBJECT. I WON'T MENTION THE ISSUE. BUT I WILL SAY, IN MY OWN REVIEW OF YESTERDAY'S TRANSCRIPT, I DID REVIEW ON ONE ISSUE WHICH I WILL CORRECT, BUT I'LL LET THE COURT AWAIT THAT RATHER THAN --
JUDGE DAVILA: OKAY.
MR. DOWNEY: -- THERE WAS ONE ISSUE THAT I DID WANT TO ADDRESS AND CORRECT BECAUSE I THINK I MISSPOKE ON AN ISSUE AND IT COULD BE IMPORTANT AND I WANT TO CORRECT IT.
JUDGE DAVILA: ALL RIGHT. THANK YOU. ANYTHING FURTHER?
MR. LEACH: NO, YOUR HONOR. THANK YOU FOR RAISING IT.
JUDGE DAVILA: THANK YOU FOR THE CONVERSATION THIS MORNING. AS I'VE SAID, I'VE TOLD YOU MY CONCERNS AND MY OBSERVATIONS. THAT'S WHY WE'RE MEETING OUTSIDE OF THE PRESENCE OF THE JURY. I WANTED YOUR INPUT --
MR. DOWNEY: I APPRECIATE IT.
JUDGE DAVILA: -- TO INFORM ME ABOUT WHAT MY THOUGHTS ARE. SO LET'S GO BACK TO TIMING.
MR. DOWNEY: YES.
JUDGE DAVILA: WE'LL BRING OUR JURY IN IN ABOUT TWO MINUTES HERE. YOU THINK YOU'LL PROBABLY, MR. DOWNEY, WRAP UP BY THE FIRST BREAK.
MR. DOWNEY: I WOULD THINK SO, YOUR HONOR, YEAH.
JUDGE DAVILA: AND OUR FIRST BREAK IS AT 11:30 AGAIN?
MR. DOWNEY: YEAH. IF I'M DONE BEFORE THEN, YOU MAY DECIDE TO TAKE IT EARLIER. WE'LL SEE.
JUDGE DAVILA: ALL RIGHT. AND THEN WILL THE GOVERNMENT HAVE ANY REBUTTAL? YOU KNOW, MAYBE I'M BEING PRESUMPTUOUS.
MR. LEACH: I'LL RELY ON MY COLLEAGUE, MR. BOSTIC, BUT I ANTICIPATE HE HAS REBUTTAL SOMEWHERE IN THE NEIGHBORHOOD OF AN HOUR TO AN HOUR AND A HALF.
JUDGE DAVILA: OKAY. FAIR ENOUGH. ALL RIGHT.
MR. DOWNEY: I'LL JUST TAKE A MINUTE AFTER YOUR HONOR STEPS DOWN TO GET MIKED UP AND THEN WE'LL BE READY.
JUDGE DAVILA: SHOW HIM HOW TO DO THAT.
MR. DOWNEY: YES.
(DISCUSSION OFF THE RECORD.)
COURT CLERK: COURT IS IN RECESS.
(RECESS FROM 9:03 A.M. UNTIL 9:14 A.M.)
(JURY IN AT 9:14 A.M.)
JUDGE DAVILA: WE'RE BACK ON THE RECORD. COUNSEL IS PRESENT. MS. HOLMES IS PRESENT. OUR JURY IS PRESENT. GOOD MORNING, LADIES AND GENTLEMEN. BEFORE I ASK MR. DOWNEY TO CONTINUE WITH HIS ARGUMENTS, LET ME ASK YOU, DURING OUR BREAK, HAVE ANY OF YOU HAD CAUSE TO DISCUSS, READ, LEARN, LISTEN TO, OR IN ANY WAY COME ACROSS ANY INFORMATION ABOUT THIS CASE? IF SO, PLEASE RAISE YOUR HAND. I SEE NO HANDS. THANK YOU VERY MUCH. MR. DOWNEY, WOULD YOU LIKE TO CONTINUE WITH YOUR ARGUMENT?