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

Filing 1043

Declaration of Nathan Sabri in Support of #1042 Opposition/Response to Motion, #1041 Administrative Motion to File Under Seal Apple Inc.'s Opposition to Samsung's Motion to Enforce April 12, 2012 Order filed byApple Inc.. (Attachments: #1 Exhibit 1, #2 Exhibit 2, #3 Exhibit 3, #4 Exhibit 4, #5 Exhibit 5, #6 Exhibit 6, #7 Exhibit 7, #8 Exhibit 8, #9 Exhibit 9, #10 Exhibit 10, #11 Exhibit 11, #12 Exhibit 12, #13 Exhibit 13, #14 Exhibit 14, #15 Exhibit 15, #16 Exhibit 16, #17 Exhibit 17, #18 Exhibit 18, #19 Exhibit 19, #20 Exhibit 20, #21 Exhibit 21, #22 Exhibit 22, #23 Exhibit 23, #24 Exhibit 24, #25 Exhibit 25, #26 Exhibit 26, #27 Exhibit 27)(Related document(s) #1042 , #1041 ) (Jacobs, Michael) (Filed on 6/5/2012)

DECLARATION OF NATHAN SABRI IN
SUPPORT OF APPLE’S OPPOSITIONS TO
SAMSUNG’S MOTION FOR SANCTIONS AND
MOTION TO ENFORCE

EXHIBIT 3

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November 10, 2011

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Via E-Mail
Rachel Kassabian
Kevin Johnson
Victoria Maroulis
Quinn Emanuel
555 Twin Dolphin Drive, 5th Floor
Redwood Shores, CA 94065
Re:

Apple Inc. v. Samsung Elecs. Co. et al. Case No. 11-cv-1846 LHK (N.D. Cal.)
CONFIDENTIAL—Subject to Protective Order

Dear Rachel, Kevin and Victoria:
I write in response to your letters of October 26 and November 3 regarding the parties’
requests for production, and as a further follow-up to our meet and confer sessions. As an
initial matter and contrary to the representation in your letters, Apple is not required to
address your objections before Samsung begins producing documents. Rather, Apple is
entitled to know what documents Samsung intends to produce, and Samsung must begin its
production of documents responsive to Apple’s requests.
As detailed in our prior letters and further explained below, we believe that your objections
to Apple’s requests are not well taken. Nevertheless, Apple would like to reach consensus
with Samsung on a document discovery plan that addresses both parties’ need for certain
documents while still addressing each sides’ concerns about the breadth of discovery. We
therefore have prepared the attached draft proposal listing an initial set of categories of
documents that each party should produce right away. The proposal attempts to maintain
reciprocity while recognizing that each party’s claims and, therefore, their need for
documents, may be different. Without waiving its arguments set forth below or Apple’s right
to insist ultimately on a full and complete production of documents responsive to these
requests, Apple proposes that each party initially produce the categories of documents
described in Exhibit A to this letter in response to the requests listed there.
If you want to discuss the details of this proposal, Apple reiterates its request for a separate
meet and confer session to allow both parties to discuss the details and reach a consensus

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November 10, 2011
Page Eight
employees, and the reporting structures for the organization. RFP No. 46 also calls for this
information.
• RFP No. 49 is relevant to the extent that Samsung is relying on a joint defense
privilege to protect documents from disclosure. Please confirm that Samsung will produce
joint defense agreements or will log the same.
Samsung’s Requests for Production
Product Examples
As noted in Samsung’s letter of November 3, Apple proposed a mutual exchange of product
exemplars. This proposal is intended to remedy Samsung’s inconsistent approaches with
respect to production of exemplars. Samsung has requested exemplars of products from
Apple (see Samsung’s RFP No. 1) but simultaneously refused to produce exemplars of its
own products, responding, “Without a showing of Apple’s inability to independently acquire
such products, Samsung will not be providing samples of the products, since those are
publicly available to Apple. (Samsung Letter of October 26.) Apple looks forward to
Samsung’s response to the proposal.
Prior Deposition and Trial Transcripts
Samsung has maintained that it is entitled to all prior deposition and trial transcripts for
inventors, regardless of subject matter. Apple has agreed to produce, and has produced, prior
deposition and trial transcripts for inventors involving the asserted patents, and responded
that seeking irrelevant transcripts is overbroad and unduly burdensome.
The mere fact that prior inconsistent testimony may be admissible does not justify overbroad
discovery of all prior testimony where Samsung has no reason to believe such inconsistent
testimony exists. Samsung’s request is based on nothing more than speculation and is the
very definition of a fishing expedition. See Rivera v. NIBCO, Inc., 364 F.3d 1057, 1072 (9th
Cir. 2004) (“District courts need not condone the use of discovery to engage in ‘fishing
expeditions.’”); Prof’l Recovery Servs. v. GE Capital Corp., 2009 U.S. Dist. LEXIS 3889, at
*13 (D. N.J. Jan. 15, 2009) (“To cast a wide net for discovery of information in the hopes
that something of use may come back is the essence of a fishing expedition precluded by the
rule of proportionality.”).
The case law cited in Samsung’s letter of November 3 does not support Samsung’s
overbroad request. In fact, the court in one of the cases cited by Samsung, Bennett v.
Segway, Inc., 2011 U.S. Dist. LEXIS 120955 (W.D.N.C. Oct. 19, 2011), approached the
issue exactly as Apple has proposed. Bennett involved a personal injury action arising out of
use of a Segway. Bennett, 2011 U.S. Dist. LEXIS 120955, at *2. The plaintiff sought copies
of all deposition transcripts and copies of trial testimony for specified Segway employees

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relating to any personal injury action. Id. The Bennett court ordered the defendants to
produce transcripts for personal injury actions stemming from the operation or use of a
Segway. Id. at *11. Here, Samsung has made a request even broader than the Bennett
plaintiff, asking for all prior deposition and trial transcripts with no limit as to subject matter.
Apple has agreed to produce prior deposition and trial transcripts relating to the asserted
patents.
The other case cited by Samsung, Inventio AG v. Thyssenkrupp Elevator Americas Corp.,
662 F. Supp. 2d 375 (D. Del. 2009) is simply off-point, as that case involved a dispute over
the existence of a connection between a specified patent and the patent-in-suit. If Samsung
believes that a particular prior proceeding in which an inventor testified has a “technological
nexus” justifying production of transcripts from that proceeding, it should so state, but it is
unreasonable and unpersuasive to assert that every non-personal proceeding any inventor has
ever been involved in has a “technological nexus” with this case.
Apple will respond to the remaining specific issues re-raised in your November 3 letter—
e.g., sketchbook and source code production—with a separate letter.
Best regards,
/s/
Wesley E. Overson
Attachment

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