Masimo lawyer's promise dashes Apple's hopes for witness stand appearance by CEO Tim Cook
WilmerHale partner Joseph Mueller said Tuesday the company won't push Cook's as a witness 'for now,' so long as Masimo doesn't reference his courtroom absence.
Apple, Inc., can’t call CEO Tim Cook to the stand in a $3 billion trade secrets trial over the Apple Watch after the company’s lawyers didn’t timely include him on their witness list.
The billionaire boss of the world’s largest technology company sat for a video deposition in the case last year, and plaintiffs lawyers for the medical technology company Masimo Corp. and its affiliate Cercacor Laboratories, Inc. originally planned to play parts of it in the trial underway in U.S. District Court in Santa Ana, California.
But they changed course after Apple’s lawyers picked their own parts of the deposition to play, then they objected to Cook being added late to Apple’s witness list.
The trial opened with Cook’s testimony only tentative: Senior U.S. District Judge James V. Selna said Apple could call him if Masimo’s lawyers argued Apple targeted trade secrets through a “smart recruiting” process that went after Masimo’s key employees.
That hasn’t happened so far, and Masimo’s lawyer Joseph Re tried to ensure Cook’s absence by telling Judge Selna on Tuesday that he would told not invoke a so-called “empty chair argument” by questioning why Apple didn’t put the CEO on the stand.
But Re did so only reluctantly.
“Mr. Cook was never on their witness list at any time,” he told Judge Selna.
A Knobbe Martens LLP partner, Re said he pulled Cook’s deposition because Apple’s designations were “self serving and outside the scope of the court’s order on what topics could be covered.”
“We know the court overrules virtually all of the objections. We didn’t think there was any chance to keep that out…so we pulled it,” Re told the judge.
Re continued, “They were free to put Mr. Cook on their witness list, and they represented to this court repeatedly that Mr. Cook has no —“ before Judge Selna cut him off.
“Calm down, sir,” Selna said.
Re also appeared to criticize journalists for focusing on Cook’s possible testimony, saying, “This issue in the press has taken a life of its own.”
“It’s the only thing the press seems to be interested in in this case, is about Mr. Cook coming here,” Re said.
Employees at the Ronald Reagan Federal Building & Courthouse had been discussing Cook’s possible testimony since before trial began, including Apple’s insistence that the company have not just a couple security officers with Cook but an entire security team stationed at the building.
Apple’s lawyers at Wilmer Cutler Pickering Hale and Dorr LLP pressed for his testimony in a March 27 testimony that highlighted Re’s strategic maneuvering.
They also said Re’s team has had “a full and fair opportunity to depose Mr. Cook on the topics on which he will testify at trial—and the only ‘prejudice’ is that he can provide the facts on issues for which Plaintiffs would prefer to suggest a false narrative to the jury.”
“The phrase ‘smart recruiting’ appears only in a single e-mail authored by Mr. Cook,” according to the response. “Plaintiffs should not be permitted to misrepresent the facts around this e-mail.”
But WilmerHale partner Joseph Mueller, Apple’s lead trial lawyer, told Judge Selna Tuesday just before noon that the company “will not be pressing [Cook’s] testimony, at least for now” after Re explicitly stated he would not question Cook’s absence in front of the jury.
But again, Re did so only reluctantly, first telling Selna, “I’m not not quite sure what [Mueller] means by empty chair. They were free to call him and put them on their list.”
Re also said Cook’s deposition revealed he knew little about the issues in the case.
“I want the record to reflect that Mr. Cook testified,” Re told the judge. “He had no knowledge of Masimo. No knowledge of Cercacor. No knowledge of Mr. Kiani.”
Re was referring to Joe Kiani, Masimo’s CEO who was described in an internal Apple email as having a “Steve Jobs-like reputation” in the industry. That was in early 2013, when Apple was recruiting to help develop the Apple Watch.
I’ll have another article soon on the deposition testimony jurors heard Tuesday from Apple employees. Meanwhile, read my first trial article from Monday: 'This is a mess': Masimo trade secrets trial reveals details of Apple Watch development
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