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Even with a jury that included a high school math teacher, the numbers did not add up. Four hours after a Southern District jury awarded Tee Vee Tunes the relatively small amount of $300,000 in the company’s copyright infringement action against, two concerned jurors phoned the chambers of Judge Jed Rakoff to report the award should have been more than $2 million. Calling the situation “unprecedented,” U.S. District Judge Rakoff called the jury back to court Monday to determine whether the verdict, as delivered on Friday, should be disregarded — and what amounted to a victory for should be wiped out. The jurors’ message triggered a flurry of e-mails and telephone calls between the clerk, Rakoff, lawyers for both sides and members of the jury. “The gist of the problem,” Rakoff said Monday at a hearing on the issue, “was that there was a calculation problem and a mistake had been made in the verdict’s arithmetic.” With Rakoff having decided that was liable for infringement on some 145 works before trial, the one-week jury trial that ended Friday dealt solely with damages. Before beginning deliberations on Thursday, the eight jurors were told by Rakoff to fix damages for each of the works. The judge said he would assemble the final tally after the panel had been dismissed. The jury awarded no damages for some of the works, $750 or more on other works and $50,000 for infringement of a “greatest hits” compilation of television’s most beloved theme songs. The problem arose on the jury’s award of damages on more than 50 works. On the verdict sheet, the jury awarded $3,125 per violation, and lawyers for Tee Vee Tunes, as well as Rakoff, have reason to believe that the jury actually intended to award $31,250 per violation — a mistake that was apparently repeated over and over, and one that Rakoff said “has been known to happen even to math teachers.” Over the objection of Jeffery A. Conciatori, attorney for, Rakoff and the lawyers then interviewed the panel members behind closed doors. Seven of the eight were interviewed Monday, with the eighth interview to be held today. NOT QUITE PRECEDENTS At Monday’s hearing, Rakoff first said that “[a] jury’s verdict should not lightly be reopened for any reasons, including statements by the jurors.” However, he said, despite the paucity of case law on the subject, jurors have been questioned in two cases where “there had been an inaccuracy in the rendering of the verdict,” Attridge v. CenCorp, 836 F2d. 113 (2d Cir.1987), and Ferrante v. Metro-North Commuter Railroad, 738 FSupp 106 (S.D. 1990). The judge said, “Those cases make the distinction between the process and the need for an accurate rendition of what (the jury actually agreed on).” Conciatori’s objection to interviewing the jurors was based on Federal Rule of Civil Procedure 606(b), which allows jurors to be interviewed for two reasons: to determine if the jury had been exposed to undue influence during deliberations, or to assess if some “extraneous influence” had been injected into the deliberations. Neither of the two cases cited by Judge Rakoff, Mr. Conciatori said, “fall within the confines of 606.” Rakoff said Conciatori’s argument was “relevant but not dispositive.” “These cases do seem to create some kind of exception under Rule 606(b),” Rakoff said. But Conciatori said there was no mistake: Rakoff had instructed the jurors to fill out a special verdict sheet, he made clear he would tally the verdict, and each member of the jury was polled. “There has been no miscommunication of the verdict to the court,” he said. Rakoff smiled as he said he appreciated how the outcome would have been different had he asked for a general verdict from the jury, adding that “I will, from now on, be sure to follow my intuition” on the practice. And although Rakoff said the case appeared to be without precedent, he said that “does not warrant closing my eyes to the problem the jurors brought to my attention with such a verdict.” Rakoff asked attorneys for both sides to brief the jury issue once the juror interviews were complete. Michael S. Elkin and Thomas P. Lane, of Thelen Reid & Priest, represented Tee Vee Tunes. Conciatori and Michael B. Carlinsky, of Orrick, Herrington & Sutcliffe, represented

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