As the patent trial between Samsung and Apple continues, Samsung moved to preclude Apple from either eliciting testimony or attorney comment on Samsung's failure to call certain witnesses to testify at trial. In its motion, Samsung asserted that permitting such testimony would be prejudicial and would be inappropriate because the district court limited the parties to a 25-hour trial time limit.
In analyzing Samsung's request, the district court noted that "Samsung has not identified, any case law supporting Samsung's requested blanket prohibition on testimony or attorney comment regarding either party's failure to call particular witnesses." Contrary to Samsung's position, the district court found that "[c]ounsel may comment to the jury on the failure to call a witness or the judge may instruct on the presumption." Food Machinery & Chem. Corp. v. Meader, 294 F.2d 377, 384 (9th Cir. 1961). Furthermore, both parties have been subject to the same time limit and other legal and procedural constraints of which Samsung complains, and both parties are equally free to point out the alleged deficiencies in the opposing party's case, to the extent permitted by law. In fact, during cross-examination of Apple's experts, Samsung asked why Apple's experts had not communicated directly with certain Apple inventors, who are still employed by Apple and available. Thus, the jury could have drawn inferences about these inventors' ability to testify and their absence at trial."
Nonetheless, the district court did caution that misuse of the "missing witness" rule could be grounds for a curative instruction to the jury. "As a general matter, the 'missing witness' or 'uncalled witness' rule allows a party to 'properly argue to the jury the possibility of drawing [an adverse] inference from the absence of a witness,' provided that the party first 'establish[es] that the missing witness was peculiarly within the adversary's power to produce.' Chicago College of Osteopathic Med. V. George A. Fuller Co., 719 F.2d 1335, 1353 (7th Cir. 1983). That a missing witness was 'peculiarly within the adversary's power to produce' can be established 'by showing either that the witness is physically available only to the opponent or that the witness has the type of relationship with the opposing party that pragmatically renders his testimony unavailable to the opposing party.' Id. However, '[i]f the uncalled witnesses are equally available to both parties, no inference should be drawn.' Bellmore v. U.S. Steel Corp., 983 F.2s 1065, at *1 (6th Cir. 1992) (unpublished) (citing Harkins v. Perini, 419 F.2d 468, 471 (6th Cir. 1969); Herbert v. Wal-Mart Stores, Inc., 911 F.2d 1044, 1048 (5th Cir. 1990))."
Based on this analysis and with reference to the handling of the "missing witness" argument in criminal cases, the district court determined that "any specific objections about improper attorney argument will be evaluated on a case-by-case basis. See Littlefield v. McGuffey, 954 F.2d 1337, 1346 (7th Cir. 1992) ('Whether to allow argument on a party's 'failure to produce a witness rest[s] largely in the discretion of the trial court, but the court should not preclude such argument when the case presents a significant question on this point.'') (quoting Chicago College, 719 F.2d at 1352-53).
Apple, Inc. v. Samsung Electronics Co., Ltd., Case No. 11-CV-01846-LHK (N.D. Cal. Aug. 13, 2012)