Apple Inc. v. Samsung Electronics Co. Ltd. et al

Filing 1031

Declaration of Cyndi Wheeler in Support of #978 Administrative Motion to File Under Seal filed byApple Inc.(a California corporation). (Attachments: #1 Exhibit 1, #2 Exhibit 2, #3 Exhibit 3, #4 Exhibit 4, #5 Exhibit 5, #6 Proposed Order)(Related document(s) #978 ) (Bartlett, Jason) (Filed on 6/4/2012)

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1 2 3 4 5 6 7 8 9 HAROLD J. MCELHINNY (CA SBN 66781) hmcelhinny@mofo.com MICHAEL A. JACOBS (CA SBN 111664) mjacobs@mofo.com JENNIFER LEE TAYLOR (CA SBN 161368) jtaylor@mofo.com ALISON M. TUCHER (CA SBN 171363) atucher@mofo.com RICHARD S.J. HUNG (CA SBN 197425) rhung@mofo.com JASON R. BARTLETT (CA SBN 214530) jasonbartlett@mofo.com MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: (415) 268-7000 Facsimile: (415) 268-7522 10 11 12 WILLIAM F. LEE william.lee@wilmerhale.com WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 Telephone: (617) 526-6000 Facsimile: (617) 526-5000 MARK D. SELWYN (SBN 244180) mark.selwyn@wilmerhale.com WILMER CUTLER PICKERING HALE AND DORR LLP 950 Page Mill Road Palo Alto, California 94304 Telephone: (650) 858-6000 Facsimile: (650) 858-6100 Attorneys for Plaintiff and Counterclaim-Defendant APPLE INC. 13 UNITED STATES DISTRICT COURT 14 NORTHERN DISTRICT OF CALIFORNIA 15 SAN JOSE DIVISION 16 17 APPLE INC., a California corporation, Plaintiff, 18 19 20 21 22 v. SAMSUNG ELECTRONICS CO., LTD., a Korean corporation; SAMSUNG ELECTRONICS AMERICA, INC., a New York corporation; and SAMSUNG TELECOMMUNICATIONS AMERICA, LLC, a Delaware limited liability company, 23 Case No. 11-cv-01846-LHK DECLARATION OF CYNDI WHEELER IN SUPPORT OF SAMSUNG’S ADMINISTRATIVE MOTION TO FILE DOCUMENTS UNDER SEAL RE SAMSUNG’S MOTION FOR LEAVE TO SEEK RECONSIDERATION Defendants. 24 25 26 27 28 DECLARATION OF CYNDI WHEELER IN SUPPORT OF SAMSUNG’S MOTION TO FILE UNDER SEAL CASE NO. 11-CV-01846-LHK sf-3153627 1 I, Cyndi Wheeler, hereby declare as follows: 2 1. I am an attorney for Apple Inc. (“Apple”). I submit this declaration in support of 3 Samsung’s Administrative Motion to File Under Seal (Dkt. No. 978) pursuant to Local Rules 7- 4 11 and 79-5. I have personal knowledge of the matters set forth below. If called as a witness I 5 could and would competently testify as follows. 6 2. Samsung’s Motion for Leave to Seek Reconsideration of the Court’s May 21, 2012 7 Order (the “Motion”) and Exhibits 1, 3, 6-10, 12-14, and 16 to the Declaration of Thomas Watson 8 in Support of the Motion (“Watson Declaration”) contain Apple-confidential information. 9 Specifically: 10 3. Exhibit 1 to the Watson Declaration contains the confidential analysis of Apple’s 11 expert Terry Musika and includes information from other highly confidential documents, 12 including third party competitive market research studies. This exhibit should be sealed in its 13 entirety. 14 4. Exhibit 3 to the Watson Declaration is an excerpt from the November 4, 2011 15 deposition of Christopher Stringer. Mr. Stringer discusses specific details of an internal design 16 model that is highly confidential and not available to the public. A proposed redacted version is 17 attached as Exhibit 1. 18 5. Exhibits 6-9 to the Watson Declaration depict highly detailed photographs of 19 Apple’s internal design model with scale and comparison information, none of which is available 20 to the public. Proposed redacted versions of Exhibits 6, 7, and 8 to the Watson Declaration are 21 attached as Exhibits 2, 3, and 4, respectively. Exhibit 9 consists of an extreme closeup providing 22 considerably more detail than has been disclosed to the public, and should be sealed in its 23 entirety. The Court previously addressed this issue (see, e.g., Order re Discovery Motions [Dkt. 24 No. 673] at 25) and confirmed that Apple may maintain the confidentiality of photographs 25 depicting details of mockups not disclosed in patent filings, including scale information, and the 26 attached proposed redacted versions are consistent with de-designated versions of these same 27 photographs that Apple has produced to Samsung under the Bates range APLNDC-X0000007496 28 to 7527. DECLARATION OF CYNDI WHEELER IN SUPPORT OF SAMSUNG’S MOTION TO FILE UNDER SEAL CASE NO. 11-CV-01846-LHK sf-3153627 1 1 6. Exhibit 10 to the Watson Declaration is an excerpt from the October 21, 2011 2 deposition of Daniele de Iuliis. Mr. de Iuliis discusses and describes an internal Apple design 3 model and specific details of that model that are not available to the public. A proposed redacted 4 version is attached as Exhibit 5. 5 7. Exhibits 12 to 14 to the Watson Declaration are portions of unpublished patent 6 applications. Unpublished patent applications are so highly confidential that courts recognize a 7 heightened relevancy standard for their production, as the Court has acknowledged. (See, e.g., 8 Order Granting-in-Part Samsung’s Motions to Compel and to Enforce [Dkt No. 867] at 4-5) 9 (discussing “clear congressional determination that a design patent application is entitled to a 10 period of confidentiality” and “significant risk of competitive harm that could result from 11 disclosure of [Apple’s] pending design patents). These exhibits should be sealed in their entirety. 12 8. Exhibit 16 to the Watson Declaration consists of the report of Apple’s expert Dr. 13 Kent Van Liere. This is a survey-related report. The parties have stipulated that survey-related 14 expert reports would be filed under seal in full and not on the public record. These documents 15 contain confidential, proprietary research and analysis. This business information was created at 16 a significant cost to Apple, and could be used by Apple's competitors to its disadvantage and 17 should be under seal in its entirety. 18 19 20 9. The Motion should be sealed to the extent it refers to the exhibits above for the same reasons. 10. It is Apple’s policy not to disclose or describe its confidential business practices, 21 design and development information, or confidential consumer research to third parties. The 22 above information is indicative of the way that Apple manages its business affairs and reveals 23 highly confidential information on its design process. If disclosed, the information in the 24 materials described above could be used by Apple’s competitors to Apple’s disadvantage. The 25 requested relief is necessary and narrowly tailored to protect the confidentiality of this 26 information. 27 28 11. Apple does not maintain a claim of confidentiality on Exhibits 4, 5, 11, or 15 to the Watson Declaration. DECLARATION OF CYNDI WHEELER IN SUPPORT OF SAMSUNG’S MOTION TO FILE UNDER SEAL CASE NO. 11-CV-01846-LHK sf-3153627 2 1 I declare under penalty of perjury under the laws of the United States of America that the 2 foregoing is true and correct to the best of my knowledge. Executed this 4th day of June, 2012, in 3 Cupertino, California. 4 /s/ Cyndi Wheeler Cyndi Wheeler 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF CYNDI WHEELER IN SUPPORT OF SAMSUNG’S MOTION TO FILE UNDER SEAL CASE NO. 11-CV-01846-LHK sf-3153627 3 1 2 3 ATTESTATION OF E-FILED SIGNATURE I, Jason R. Bartlett, am the ECF User whose ID and password are being used to file this 4 Declaration. In compliance with General Order 45, X.B., I hereby attest that Cyndi Wheeler has 5 concurred in this filing. 6 Dated: June 4, 2012 7 By: /s/ Jason R. Bartlett Jason R. Bartlett 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF CYNDI WHEELER IN SUPPORT OF SAMSUNG’S MOTION TO FILE UNDER SEAL CASE NO. 11-CV-01846-LHK sf-3153627 4

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