Matthew Powers (MP): There are tons of other computer experts that can be employed in this.

J. Patel (J): What about that? Aren't there tons of others that you could easily find?

FS: Your honor, Burst has made a long-term investment in him. He's spent time to become familiar with the patents and products -- at least 100 hrs. of work on our case ...

J: Why was this person chosen?

FS: Well, he's well known by our law office. ("We've worked with him in the past." -- Parker Fose.) Both parties seem to agree that he is a good expert.

J: Maybe I should hire him (as MY expert) if he's so good! (Chuckle.) I'm serious!

MP: He's received extensive confidential info from our lawyers.

J: It's not a loyalty test! He's an expert that has worked for Susman Godfrey before.

FS: These cases are extremely unrelated (system interrupts and QT streaming, etc.) There's nothing he received that would benefit us in this case.

J: What did he learn in the Gobeli case?

MP: The manner of the timing of signals -- at that level.. The other issue is the work product issue: he was privy to discussions with Apple attorneys as to our strategy in preparing for a Markman hearing...

-- At his point J. Patel had played her role well by listening to arguments from both sides. Not tipping her hand. But she had to make a decision. The conference was scheduled for just 1/2 hr. It had gone almost that long on this one issue alone. Time to be decisive! She knew what she HAD to do. When this judge's mind is made up, that's it! The argument is over! The tone of her voice changed, but still very calm and unemotional. But when she spoke, everyone in the courtroom knew that issue was decided, once and for all --

J: It was bad judgment to hire him. -- It's better to err on the side of caution. And I'm telling you (speaking to Burst's side) for your own sake. Deal with it now. I know you've invested a lot of time in this expert, but if something should come out in the future ... It will cost you a lot less if something comes out -- a potential calamity -- that he has mentioned something of a confidential nature ...

All of a sudden it was over. Almost like a sudden mood swing. But it wasn't really. She listens to both sides with a great deal of interest and deference, then focuses on the point that she feels is critical to her decision-making process. In this dispute, the technological issues where not nearly as important to her as the lawyer-expert "Work Product." What MIGHT have been said to whom? That was it! Find another expert!

Before the hearing I had predicted we would win on Bershad. And I still believe we had the upper hand, by far, on the technological arguments. But we lost on the work product issue. Hers was almost a subjective decision, I would say. But probably the right one. Powers is probably more familiar with J. Patel than the Seattle attorneys, and figured he could get her acquiescence. He was right. But it was also a good lesson in J. Patel's mind and thinking process that will serve our side well in the future. She bends over backwards to be fair!