Summary: Samsung has used the opening of expert witness examination in the Australian Federal Court to question whether Apple asked a witness to change his view.
Samsung’s Australian counsel Katrina Howard has used the opening of the so-called “hot tub” cross examination of three expert witnesses to question whether Apple encouraged one of the witnesses to change a view that he had previously expressed in an expert report filed to the court.
The court this morning called upon three telecommunications engineering expert witnesses — Dr Rami Mukhtar, professor Aruna Seneviratne and associate professor Riaz Esmailzadeh — to testify about their understanding of Samsung’s 3G patents and whether these are implemented in Apple’s iPhone 4, iPhone 4S and iPad 2 products.
Earlier in the week, Howard accused Apple’s law firm, Freehills, of asking these experts to change some of the evidence submitted in an expert report at the beginning of August. Before official questioning got underway this morning, Howard interrogated Seneviratne as to what exactly had taken place that led to the errata report being that seeks to amend the original report.
“After [the original report was filed] were you contacted by any member of Apple’s legal team?” Howard asked.
“No. I was called for a meeting,” Seneviratne replied. He stated that the meeting took place at Freehills’ offices.
He said that he wasn’t asked about specific items in the report, but that an inconsistency in the report was pointed out to him.
“It was pointed out and I agreed it was not the same,” he said.
He said that he was not asked to reconsider his view by Freehills. Howard then turned to an email that Seneviratne sent, following the meeting to Mukhtar and Esmailzadeh.
“‘I had a short meeting with Freehills yesterday, they asked me to reconsider,’” Howard read out to the court.
“Are you now saying they didn’t ask you to reconsider those words, despite the email?” Howard asked.
Seneviratne said that this was just the wording of the email.
“It’s the way I wrote the mail to these two individuals. It is not a formulation of Freehills.”
Seneviratne said that after his meeting, he wrote up the proposed changes and circulated them to the other two experts before sending them to Freehills.
Apple counsel Steven Burley said that in light of the evidence given by Seneviratne, Howard should consider withdrawing the “objectionable” comments that she made on Monday. Justice Annabelle Bennett urged Howard to consider this.
“You made quite serious statements, and we now have evidence on it. You might want to consider that, personally,” she said.
“The comments I made the other day are about the process, not the individuals involved,” Howard replied.
“It’s a matter for you. You should look at the transcript and what you said, and see if you want to modify that,” Bennett said.
The hot-tub process, which sees all three witnesses simultaneously answering questions from Apple and Samsung counsel, as well as from Bennett, is expected to last for the rest of Wednesday.