Citing EDTX Virus Outbreak, Samsung Requests Trial Delay

By Katie Buehler
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Law360 (November 18, 2020, 7:35 PM EST) -- Samsung on Wednesday asked to delay by three months an Eastern District of Texas patent trial scheduled to begin Dec. 4, citing concerns over COVID-19 after a recent trial in the district ended in a mistrial after 15 participants tested positive for the novel coronavirus.

In an opposed motion, Samsung Display Co. Ltd. and related entities asked U.S. District Judge Rodney Gilstrap to push its trial concerning three mobile screen display technology patents owned by Solas OLED Ltd. to March. Samsung argued that the recent spike in COVID-19 cases nationwide and the necessity for its attorneys and witnesses to travel from California and South Korea, respectively, "presents exceptional circumstances."

Samsung filed this request a day after Judge Gilstrap's colleague, U.S. District Judge Amos L. Mazzant III, granted a mistrial in a breach-of-contract dispute he was overseeing in Sherman, Texas, about 150 miles northwest of Marshall, Texas, where Judge Gilstrap presides. By Nov. 19, 15 participants from that trial had tested positive for the coronavirus.

"The incidence of COVID-19 infecting thirteen people — jurors, counsel, and court staff — at a recent trial in Sherman, Texas, underscores that even the best efforts and precautions cannot prevent trials from serving as spreader events," Samsung said.

Samsung suggested in its motion that the availability of at least one vaccine by March 2021 would make the Marshall trial much safer for some of its high-risk attorneys. It added the three-month delay would also allow for the country's second wave of COVID-19 to pass.

Judge Gilstrap has already postponed Samsung's trial once, from Oct. 5 to Dec. 4, after the company said a key expert witness who lives in West Virginia wouldn't be able to travel to Texas to testify at trial, according to court documents. Solas didn't oppose that continuance.

Samsung argued in its Wednesday motion that the new trial date's proximity to Thanksgiving and other winter holidays would require its attorneys and witnesses to travel during the busiest travel time of the year, facing an increased risk of exposure on their way to or from the trial. California public health officials have also issued a travel warning that urges anyone entering or returning to the state to self-quarantine for 14 days, meaning attorneys could be separated from their families for Christmas and other holidays, Samsung said.

Halfway through the Sherman trial, which began jury selection on Nov. 2, Judge Mazzant learned that a dismissed juror had tested positive for the coronavirus. As of Thursday, 15 participants, including two jurors, multiple attorneys for both the plaintiff and defendant, and court staffers had tested positive for the virus. The judge postponed the trial for two weeks on Nov. 9, and ultimately granted a mistrial Tuesday after the parties failed to agree to proceed with a five-person jury.

It was the first of 20 trials held in the Eastern District of Texas since June in which positive virus tests have been reported. People entering Judge Mazzant's courthouse had their temperatures checked daily, there were physical barriers set up in some parts of the courtroom, and mask-wearing and social distancing were required.

Judge Gilstrap held his first pandemic-era trial in August, and has held one trial every month since. His most recent trial, a dispute between Google LLC and Personalized Media Communications LLC over video programming patents, ended Nov. 6 when a jury returned a verdict clearing Google of the infringement claims.

He has installed a plexiglass wall in front of the witness stand in his Marshall courtroom and placed hand sanitizer in several spots around the well and jury box. Attorneys and jurors have their temperature taken every day before court.

Texas, which leads the nation in COVID-19 cases, has had more than 1.1 million cases reported since the pandemic started. Over the last seven days alone, the state has recorded more than 59,000 new cases, according to data from the state's Department of State Health Services.

Counsel for Solas didn't immediately respond to requests for comment Wednesday.

The patents-in-suit are U.S. Patent Nos. 6,072,450; 7,446,338 and 9,256,311.

Solas is represented by Marc Fenster, Reza Mirzaie, Neil A. Rubin, Kent N. Shum and Theresa Troupson of Russ August & Kabat, Sean A. Luner, Gregory S. Dovel and Jonas B. Jacobson of Dovel & Luner LLP, and T. John Ward Jr., Claire Abernathy Henry and Andrea L. Fair of Ward Smith & Hill PC.

Samsung is represented by Jeffrey H. Lerner, David A. Garr, Jared R. Frisch, Daniel W. Cho, Tarek J. Austin, Eric T. O'Brien, David J. Cho, Jordan V. Hill and Robert T. Haslam of Covington & Burling LLP and Melissa R. Smith of Gillam & Smith LLP.

The case is Solas OLED Ltd. v. Samsung Display Co. Ltd. et al., case number 2:19-cv-00152, in the U.S. District Court for the Eastern District of Texas.

--Editing by Michael Watanabe.

Update: This story was updated Nov. 19 to reflect that two additional court staffers tested positive for COVID.

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