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

Filing 1047

Administrative Motion to File Under Seal Apple's Reply in Support of Motion for Adverse Inference Jury Instructions Due to Samsung's Spoliation of Evidence (Dkt. 895) filed by Apple Inc.. (Attachments: #1 Proposed Order, #2 Apple's Reply Brief, #3 Declaration of Esther Kim)(Jacobs, Michael) (Filed on 6/5/2012)

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HAROLD J. MCELHINNY (CA SBN 66781)
[e-mail]
MICHAEL A. JACOBS (CA SBN 111664)
[e-mail]
JENNIFER LEE TAYLOR (CA SBN 161368)
[e-mail]
ALISON M. TUCHER (CA SBN 171363)
[e-mail]
RICHARD S.J. HUNG (CA SBN 197425)
[e-mail]
JASON R. BARTLETT (CA SBN 214530)
[e-mail]
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: [phone]
Facsimile: [phone]

WILLIAM F. LEE
[e-mail]
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
Telephone: [phone]
Facsimile: [phone]
MARK D. SELWYN (SBN 244180)
[e-mail]
WILMER CUTLER PICKERING
HALE AND DORR LLP
950 Page Mill Road
Palo Alto, California 94304
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiff and
Counterclaim-Defendant APPLE INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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APPLE INC., a California corporation,

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Plaintiff,
v.
SAMSUNG ELECTRONICS CO., LTD., a
Korean business entity; SAMSUNG
ELECTRONICS AMERICA, INC., a New York
corporation; SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC, a
Delaware limited liability company,
Defendants.

Case No.

11-cv-01846-LHK (PSG)

REPLY DECLARATION OF
ESTHER KIM IN SUPPORT OF
APPLE’S MOTION FOR ADVERSE
INFERENCE JURY
INSTRUCTIONS DUE TO
SAMSUNG’S SPOLIATION OF
EVIDENCE
Date:
Time:
Place:
Judge:

June 21, 2012
10:00 a.m.
Courtroom 5, 4th Floor
Hon. Paul S. Grewal

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PUBLIC REDACTED VERSION

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KIM REPLY DECL. ISO APPLE’S MOTION FOR ADVERSE INFERENCE JURY INSTRUCTIONS DUE TO SPOLIATION
CASE NO. 11-CV-01846-LHK (PSG)
sf-3154823

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I, Esther Kim, declare as follows:

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1.

I am an associate with the law firm of Morrison & Foerster LLP, counsel for

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Apple Inc. (“Apple”). I am licensed to practice law in the State of California and admitted to

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practice before this Court. Unless otherwise indicated, I have personal knowledge of the matters

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stated herein or understand them to be true from other members of my litigation team. I make

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this declaration in support of Apple’s Motion for Adverse Inference Jury Instructions Due to

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Samsung’s Spoliation of Evidence.

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2.

Certain exhibits to this declaration consist of Korean-language documents

produced by Samsung in this action. Apple has obtained certified translations of the documents
and submits those translations herewith along with each Korean original.
3.

Pursuant to the Court’s September 28, 2011, Order (Dkt. No. 267), Samsung

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served its first Identification of Custodians, Litigation Hold Notices and Search Terms

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(“transparency disclosures”) on October 7, 2011. Attached hereto as Exhibit 1 is a true and

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correct copy of the October 7, 2011, disclosures and relevant accompanying exhibits,

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i.e., Exhibits S, T, and U.

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4.

Samsung subsequently amended or supplemented its transparency disclosures four

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times, serving them on October 10, 2011, December 1, 2011, February 26, 2012, and most

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recently, on May 27, 2012.

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5.

Attached hereto as Exhibit 2 is a true and correct copy of Samsung’s transparency

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disclosures served on October 10, 2011, titled “Samsung’s Amended Identification of Custodians,

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Litigation Hold Notices and Search Terms.” The only exhibit amended in these disclosures was

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Exhibit V, which is not relevant here. Accordingly, Exhibits S, T, and U remain the same as the

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October 7, 2011, disclosures.

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6.

Attached hereto as Exhibit 3 is a true and correct copy of the transparency

disclosures served on December 1, 2011, titled “Samsung’s First Amended and Supplemental
KIM REPLY DECL. ISO APPLE’S MOTION FOR ADVERSE INFERENCE JURY INSTRUCTIONS DUE TO SPOLIATION
CASE NO. 11-CV-01846-LHK (PSG)
sf-3154823

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Identification of Custodians, Litigation Hold Notices and Search Terms,” and relevant

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accompanying exhibits, i.e., Exhibits S, T, and U.

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7.

Attached hereto as Exhibit 4 are two summary charts titled

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8.

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Attached hereto as Exhibit 5 is a chart summarizing
more than 550 of the documents from the May 26, 2012, production

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9.

Apple sent three letters to Samsung on January 29, 2012, February 21, 2012, and

February 29, 2012, asking Samsung to confirm whether it was

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Attached hereto as Exhibit 6 is a true and correct copy of the letter from Apple’s

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counsel Marc Pernick to Samsung’s counsel Rachel Kassabian, dated January 29, 2012,

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requesting this information. Attached hereto as Exhibit 7 is a true and correct copy of the second

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letter from Mr. Pernick to Ms. Kassabian, dated February 21, 2012, again requesting this

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information. Attached hereto as Exhibit 8 is a true and correct copy of the third letter from

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Mr. Pernick to Ms. Kassabian, dated February 29, 2012, repeating this request.

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10.

Samsung finally responded to Apple’s multiple requests by definitively answering,

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Attached hereto as Exhibit 9 is a true

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and correct copy of the letter from Samsung’s counsel Alex Binder to Marc Pernick, dated

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February 29, 2012, confirming that Samsung was not

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Attached hereto as Exhibit 10 is a true and correct copy of the document produced

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by Samsung beginning with Bates number SAMNDCA00044700, which is an email dated

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February 16, 2012,

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A true and correct copy of a certified translation is included.

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KIM REPLY DECL. ISO APPLE’S MOTION FOR ADVERSE INFERENCE JURY INSTRUCTIONS DUE TO SPOLIATION
CASE NO. 11-CV-01846-LHK (PSG)
sf-3154823

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12.

Attached hereto as Exhibit 11 is a true and correct copy of excerpts from the

transcript of the deposition of Dong Sub Kim taken on February 28, 2012.
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Under my supervision, contract attorneys for Morrison & Foerster reviewed the

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emails authored or received by

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custodians—documents produced in this action, as well as documents produced in the matter of

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Certain Electronic Digital Media Devices and Components Thereof, Investigation

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No. 337-TA-796, pending in the International Trade Commission. Samsung asserts that it

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produced

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& Foerster’s contract attorneys discovered more than

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that were produced from the files of other

However, Morrison

Of these, more than

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I declare under penalty of perjury that the foregoing is true and correct. Executed
June 5, 2012, at San Francisco, California.
/s/ Esther Kim
Esther Kim

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KIM REPLY DECL. ISO APPLE’S MOTION FOR ADVERSE INFERENCE JURY INSTRUCTIONS DUE TO SPOLIATION
CASE NO. 11-CV-01846-LHK (PSG)
sf-3154823

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ATTESTATION OF E-FILED SIGNATURE
I, Michael A. Jacobs, am the ECF User whose ID and password are being used to file this

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Declaration. In compliance with General Order 45, X.B., I hereby attest that Esther Kim has

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concurred in this filing.

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Dated: June 5, 2012

/s/ Michael A. Jacobs
Michael A. Jacobs

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KIM REPLY DECL. ISO APPLE’S MOTION FOR ADVERSE INFERENCE JURY INSTRUCTIONS DUE TO SPOLIATION
CASE NO. 11-CV-01846-LHK (PSG)
sf-3154823