Below are some relevant extracts from Burke v Hopkins CA5 Appeal, where opposing counsel is claiming that embedded links are not part of the record and then can be stricken.
Appellants’ Brief contains a multitude of embedded links to documents not part of the appellate record and those links (and related documents) are improper as part of the Burke’s brief.1
1 See Appellants’ Brief at (1) “SUPRISE.PDF” at Page 12, Page 15 at fn. 6, and Page 34, (2) “HISTORY.COM” at Page 12, (3) RECONSIDERATION LETTER at Page 14 and at Page 17.
The Burkes links to the billing records (now improperly possessed and stored by the Burkes in an online database) simply are not part of the appellate record. The Burkes’ ongoing possession over the documents, as well as the attachment and production of those documents is not permissible to have been done in the Burkes’ brief to the Court.
The rule consistently applied in all federal appellate courts, including this Court, is that “[m]aterial that was not presented in the district court and is not a part of the record on appeal is not considered.” U.S. v. Crawford, 205 F.3d 1337, 1999 WL 1338370, *2 (5th Cir. Dec. 20, 1999) (emphasis added)2; see also U.S. v. Salinas, 701 F.3d 41 (5th Cir 1983) (affidavit filed with the court of appeals to support a petition for rehearing, averring matters contrary to statements made in the record, would not be considered because it was both untimely and not properly part of the record on appeal).
R. App. P. 10(a) defines the appellate record as consisting of the original papers and exhibits filed in the district court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the district clerk.
The information in the links embedded in Appellants’ Brief is clearly not in the appellate record and was included in Appellants’ Brief with the sole purpose of harassing Appellees for their legal representation of their clients.
Appellees therefore respectfully request that the Court strike Appellants’ Brief in its entirety, or reject Appellants’ Brief for re-filing without the embedded, improperly submitted materials. See Clark v. Coats & Clark Inc., 929 F.2d 604, 609-610 (11th Cir. 1991)(granting motion to strike an affidavit submitted on appeal that was not a part of the record).
Single Fifth Circuit Judge Edith Brown Clement agreed with Hopkins and has demanded in her order that the portions of the Burkes Initial Brief as identified by Hopkins be stricken. This is error for several reasons, but this post merely discusses one. Below you’ll see a recent order by E.D. Tex. Federal Judge Rodney Gilstrap. He cites poetry (6) in his order. There is no difference here when the Burkes cited the History channel to expand on the definition of ‘roman candle’ orders by referencing the US Paratroopers who lost their lives in the war against Germany.
Furthermore, there were many similar embedded links in the Burkes’ Initial Brief in Burke v Ocwen (19-20267) and this was not objected too by opposing counsel nor stricken by the court. There is a lack of consistency that defies the due process clause and the rule of law.
This. https://t.co/mMdK0ThOYQ@ClassActionLaw @statebaroftexas @SupremeCourt_TX @JudgeDillard @JusticeWillett @KannonShanmugam @roysimon @VolokhC @JoshMBlackman @josh_hammer @nytimes @blaw @law360 @VAStateBar @TheFlaBar @DC_Bar @scotxblog @ishapiro @Public_Justice @FedSoc pic.twitter.com/kqLKMqYiGb
— LawsInTexas (@lawsintexasusa) July 5, 2020
Gilstrap Cites Poet In Refusal To Postpone Apple Patent Trial
Originally published; July 21, 2020
Eastern District of Texas Judge Rodney Gilstrap on Tuesday shot down Apple’s request to postpone an in-person jury trial in a patent lawsuit over 4G LTE technology, quoting poet Robert Frost in his reasoning why the trial should begin in two weeks despite the pandemic.
In a 9-page order, Judge Gilstrap rejected Apple’s bid earlier this month to delay an Aug. 3 trial for two months amid the recent surge in COVID-19 cases in Texas. Apple had argued that holding the trial as scheduled would endanger “all involved in the trial,” as well as local areas and the areas all participants would be going back to after the trial.
But Judge Gilstrap said that maintaining the trial date was the “better choice,” warning that calling off the planned trial next month will cause “lengthy, protracted delay, which will simply guarantee material prejudice to all parties.”
“The task of balancing very real public health concerns against the right of the parties to resolve their far-reaching disputes is a challenge this court has not sought and does not relish,” the judge wrote. “However, as Robert Frost admonished in A Servant to Servants, ‘the best way out is always through.'”
Judge Gilstrap also noted the various safety measures he has imposed in his courtroom, including daily sanitation of the facilities, face shields, temperature checks and restricting the number of attorneys seated at counsel tables.
The judge also agreed to allow three witnesses who live in Europe to testify via live video. He said that while he would prefer in-person testimony, “these are unprecedented times, which call for unprecedented measures.”
“Real time live video testimony from these witnesses presented via monitors in the courtroom will enable the jury to make instantaneous deductions about each such witness and his testimony,” he said.
Also on Tuesday, Eastern District of Texas Magistrate Judge Roy Payne postponed a patent trial in video game maker Gree Inc.’s suit against rival Supercell Oy, which was set to begin Aug. 3, the same day as the Apple trial, in the same Marshall, Texas, courthouse, amid pandemic concerns.
Supercell argued that surging virus cases in Texas meant that the jury trial “presents the risk of becoming a super spreader event.”
Because Gree did not oppose the motion, Judge Payne rescheduled the trial to Sept. 14.
The fight over whether or not to hold the August trial in the Apple case as planned comes in a lawsuit filed last February by PanOptis, which alleges that Apple is infringing the patents by offering 4G LTE capability on the iPhone, iPad and Apple Watch. PanOptis said it tried to get Apple to take a license, but that the company did not get on board.
After Apple asked Judge Gilstrap to push back the trial due to the COVID-19 pandemic, PanOptis countered Monday that the smartphone giant’s bid to delay the Harrison County trial was based on incomplete and inaccurate information.
“If there are strict social-distancing and masking requirements in place now because of the governor’s rules, and infections are currently low in Harrison County, now is the best and safest time to hold a trial in the Eastern District,” PanOptis said. “Apple hired a doctor to tell the court to wait to start holding trials until flu seasons starts in the United States and when independent modeling predicts virus infections and deaths will increase. This is not a credible position.”
This prompted a same-day reply from Apple that contended that PanOptis’ response “throws mud” at its medical expert, while referring to the company’s claims that Apple is enacting delay tactics as “smears.”
“Plaintiffs’ assertion that the situation could grow worse in two months is not evidence that it is safe to hold a trial today,” Apple said Monday. “Contrary to plaintiffs’ conclusion, the fact that current projections estimate 80,000 more deaths in the next 60 days underscores just how serious this pandemic is now.”
The patents-in-suit are U.S. Patent Nos. 8,005,154; 8,019,332; 8,385,284; 8,411,557; 9,001,774; 8,102,833; and 8,989,290.
Counsel for the parties did not immediately respond to requests for comment Tuesday.
PanOptis is represented by Samuel Baxter, Jennifer Truelove and Steven Pollinger of McKool Smith PC, Jason Sheasby and Hong Zhong of Irell & Manella LLP, and Jill Bindler of Gray Reed & McGraw LLP.
Apple is represented by Mark Selwyn, Mindy Sooter, Timothy Syrett and Brittany Blueitt Amadi of WilmerHale and Melissa Smith of Gillam & Smith LLP.
The case is Optis Wireless Technology LLC et al. v. Apple Inc., case number 2:19-cv-00066, in the U.S. District Court for the Eastern District of Texas.