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

Filing 1060

*** Declaration of Trevor Darrell in Support of Samsung's Reply and Exhibit D and E to Darrell Declaration FILED IN ERROR WITH CONFIDENTIAL INFORMATION. DOCUMENT LOCKED. *** Administrative Motion to File Under Seal filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC(a Delaware limited liability company). (Attachments: #1 Proposed Order Granting Motion to File Documents Under Seal, #2 Samsung's Reply in Support of Motion to Strike Expert Testimony Based on Undislcosed Facts and Theories, #3 Declaration of Christopher E. Price in Support of Samsung's Reply, #4 Exhibit 1 to Price Declaration, #5 Exhibit 2 to Price Declaration, #6 Exhibit 3 to Price Declaration, #7 Exhibit 4 to Price Declaration, #8 Exhibit 5 to Price Declaration, #9 Exhibit 6 to Price Declaration, #10 Exhibit 7 to Price Declaration, #11 Exhibit 8 to Price Declaration, #12 Exhibit 9 to Price Declaration, #13 Exhibit 10 to Price Declaration, #14 Exhibit 11 to Price Declaration, #15 Exhibit 12 to Price Declaration, #16 Exhibit 13 to Price Declaration, #17 Exhibit 14 to Price Declaration, #18 Exhibit 15 to Price Declaration, #19 Exhibit 16 to Price Declaration, #20 Exhibit 17 to Price Declaration, #21 Exhibit 18 to Price Declaration, #22 Exhibit 19 to Price Declaration, #23 Exhibit 20 to Price Declaration, #24 Exhibit 21 to Price Declaration, #25 Exhibit 22 to Price Declaration, #26 Exhibit 23 to Price Declaration, #27 Exhibit 24 to Price Declaration, #28 Exhibit 25 to Price Declaration, #29 Exhibit 26 to Price Declaration, #30 Exhibit 27 to Price Declaration, #31 Exhibit 28 to Price Declaration, #32 Exhibit 29 to Price Declaration, #33 Exhibit 30 to Price Declaration, #34 Exhibit 31 to Price Declaration, #35 Declaration of Michael J. Wagner in Support of Samsung's Reply, #36 Exhibit A to Wagner Declaration, #37 Exhibit B to Wagner Declaration, #38 Exhibit C to Wagner Declaration, #39 Declaration of Trevor Darrell in Support of Samsung's Reply, #40 Exhibit A to Darrell Declaration, #41 Exhibit B to Darrell Declaration, #42 Exhibit C to Darrell Declaration, #43 Exhibit D to Darrell Declaration, #44 Exhibit E to Darrell Declaration)(Maroulis, Victoria) (Filed on 6/7/2012) Modified on 6/8/2012 (fff, COURT STAFF).

EXHIBIT A

1

MICHAEL J. WAGNER

J.D., Loyola University School
of Law at Los Angeles (1975)

Managing Director
M.B.A., University of California
at Los Angeles (1971)
B.S. Engineering,
University of Santa Clara
(1969)

Michael Wagner, a Managing Director with LitiNomics, has testified 125 times at trial, 34 times in
arbitration, and 305 times in deposition. He has testified in Federal courts in 18 different states and
in State court in 10 different States. The most frequent subject matters of his expert testimony are
the calculation of commercial damages or business value. He has also testified a number of times
on the subject of alter ego.

EXPERIENCE
2007-Present

Managing Director, LitiNomics

2004–2007

Senior Advisor, CRA International (successor to InteCap, Inc.)

1999–2004

Managing Director, InteCap, Inc.

1999

Senior Vice President, PHB Hagler Bailly, Inc. (successor to Putnam, Hayes &
Bartlett, Inc.)

1993–1999

Managing Director, Putnam, Hayes & Bartlett, Inc. (successor to Dickenson,
O’Brien & Associates)

1985–1992

Partner, Price Waterhouse
Senior Manager, 1983–1985
Manager, 1979–1980
Consultant, 1976–1979

1981–1983

Principal, Dickenson, O’Brien & Associates
Associate, 1980–1981

1975–1976

Associate Cost Engineer, Fluor Engineers & Constructors, Inc.

PROFESSIONAL AFFILIATIONS (CURRENT)
Member, American Institute of Certified Public Accountants - # 1079895
Certified in Financial Forensics - # 23 (2008 – current)
CFF Credential Committee (2008 – 2011)

MICHAEL J. WAGNER
Page 2

AICPA Litigation Services Committee (1993–1995)
AICPA Business Valuation Standards Task Force (1994–1995)
AICPA and IBA combined Conference Steering Committee (1995)
AICPA MAS Practice Standards and Administration Subcommittee (1988–1990)
AICPA Auditing Standards Board Litigation Services Task Force (1989)
AICPA 1990 through 1995 Litigation Services Conference Steering Committees
Co-Editor, CPA Expert (1994–1996)
Certified Public Accountant, State of California - # 30327
Member, State Bar of California - # 67911
Member, Sedona Conference Patent Damages and Remedies Working Group
Panel of Experts, Dunn on Damages

PROFESSIONAL AFFILIATIONS (PAST)
Member, American Bar Association
Member, State Bar of California (inactive status 1991–1995)
Member, California Society of Certified Public Accountants
Litigation Services Committee (1985–1990), Chairman (1987–1989)
Government Relations Committee (1989–1990)
Contingent Fee Task Force (1988–1990)
Member, Oregon Society of Certified Public Accountants
Litigation Services Committee (1990–1994)
Certified Public Accountant, States of Hawaii (1980–1983), Washington (1990–1994), Oregon
(1990–1994)
Member, Los Angeles County Bar Association
Dispute Resolution Services, Sub-chair of Administration Committee (1987–1989)
NASD Board of Arbitrators
Hastings College of Advocacy, Faculty Expert
NITA, Faculty Member
Certified Management Consultant
American Arbitration Association’s Panel of Arbitrators
Arbitration Services of Portland, Inc.
Academy of Experts

**Underlined party was my client.

MICHAEL J. WAGNER
Page 3

PUBLICATIONS
“Book of Wisdom – Is it Fact or Fiction”, Dunn on Damages – The Economic Damages Report for
Litigators, Issue 3, Summer 2011
"A Primer on Patent Damages", Dunn on Damages - The Economic Damages Report for Litigators
and Experts, Issue 2, Spring 2011.
"The 25% Rule Lives On", IP Law 360, September 8, 2010 (co-authored with John Jarosz and Carla
Mulhern)
“Response to One Man’s Opinion, comments on ‘A New Look at Expected Cash Flows and Present
Value Discounts’,” CPA Expert, spring 2004 (co-authored with Michael Crain and Bonnie Goldsmith)
“Differences between Economic Damages Analysis and Business Valuation,” Chapter 13 in the
Handbook of Business Valuation and Intellectual Property Analysis, McGraw-Hill, 2004 (coauthored with Michael Dunbar)
th

rd

nd

st

Litigation Services Handbook (4 Edition – 2007, 3 Edition – 2001, 2 Edition – 1995, 1 Edition –
1990), John Wiley & Sons, (co-edited with Peter B. Frank and Roman L. Weil).

Chapters Co-Authored
4th Edition:
Chapter 1 “The Role of the Financial Expert in Litigation Services”
Chapter 8 “Ex Ante versus Ex Post Damages Calculations”
Chapter 22 “Patent Infringement Damages”
Chapter 29 “Alter Ego”
rd

3 Edition:
Chapter 1 “The Role of the Financial Expert in Litigation Services”
Chapter 5A “Ex Ante versus Ex Post Damages Calculations” (2003 Supplement)
Chapter 24 “Patent Infringement Damages”
Chapter 38 “Alter Ego”
nd

2 Edition:
Chapter 1 “The Role of the CPA in Litigation Services”
Chapter10 “Alter Ego”
Chapter 34 "Patent Infringement Damages”
st

1 Edition:
Chapter 1 “The Role of the CPA in Litigation Services”
Chapter 17 “Patent Infringement Damages”
Chapter 31 “Securities Act Violations: Computation of Damages”
**Underlined party was my client.

MICHAEL J. WAGNER
Page 4

“Economic Damages: Use and Abuse of Business Valuation Concepts,” Chapter 14 in The
Handbook of Advanced Business Valuation, McGraw-Hill, 1999 (co-authored with John Phillips).
“Tax Effects of Discount Rates in Taxable Damage Awards,” CPA Expert, winter 1999 (co-authored
with Greg Hallman).
“Experience Enhances Objectivity of Damage Estimates,” CPA Expert, winter 1997.
“Communicating in Litigation Services: Reports, A Nonauthoritative Guide,” AICPA Consulting
Services Practice Aid No. 96-3, 1996 (co-authored with Everett P. Harry III). Partially reprinted in
th
Recovery of Damages for Lost Profits, Volume 2, (5 Edition) by Robert L. Dunn.
“Court Expands Lost Profits Damages From Patent Infringement,” CPA Expert, summer 1996 (coauthored with Bruce L. McFarlane).
“The Implications of Changes in the Federal Rules of Civil Procedure for CPA-Expert Witnesses,”
The CPA Management Consultant Newsletter of the AICPA Management Consultant Division,
spring 1994 (co-authored with Bruce L. McFarlane).
“The Revised Federal Rules of Civil Procedures That Apply to Expert Witnesses,” CPA Litigation
Services Counselor, Volume 1994, Issues 2 & 3. Harcourt Brace (February and March 1994).
“What Juries Look for in CPAs,” Journal of Accountancy (November 1993).
“Litigation Services,” AICPA MAS Technical Consulting Practice Aid, No. 7 1986 reprinted and
updated as “Providing Litigation Services” AICPA Consulting Services Practice AID 93-4 (coauthored with Peter B. Frank) (1993).
“Valuation of Intangible Assets,” Financial Valuation: Businesses and Business Interests, Warren
Gorham Lamont, 1993 Supplement (co-authored with Lee B. Shepard).
“Opportunities in Litigation Services,” Journal of Accountancy, (June 1992) (co-authored with Bruce
L. McFarlane).
“Economic Damages in Patent Infringement Cases,” Patent Litigation 1991, Vol. II, Practicing Law
Institute, Course Handbook Series No. 321 (co-authored with Peter B. Frank and Jeffrey H. Kinrich).
“Using CPAs In Your Law Practice,” Seattle-King County Bar Bulletin, February 1991 (co-authored
with Bruce L. McFarlane). Reprinted in The Oregon Certified Public Accountant, September 1991,
as “The Role of the CPA in Commercial Litigation.”
“The Accountant’s Role in the Process of Damage Measurement,” The Practical Accountant (July
1990).
“How do you Measure Damages? Lost Income or Lost Cash Flow?” Journal of Accountancy
(February 1990).
“Expert Problems,” ABA Litigation Journal, Volume 15, No. 2 (Winter 1989).
“How to Control Your Expert,” Association of Business Trial Lawyers Report, Volume X, No. 2
(February 1988).
“Computing Lost Profits and Reasonable Royalties,” American Intellectual Property Law Association
Quarterly Journal, Volume 15, No. 4 1987 (co-authored with Peter B. Frank).

**Underlined party was my client.

MICHAEL J. WAGNER
Page 5

“Breach of Duty by Directors, Officers and Principal Shareholders: Shareholder Derivative Actions,”
Chapter 63, Commercial Damages, Matthew Bender (1986).
“Computers Revolutionize Damage Claim Analysis,” The Recorder (June 7, 1984).
“Analyzing Damage Claims—Discounted Cash Flow Method,” The National Law Journal
(August 29, 1983).
“The Litigator’s Ultimate Weapon,” Los Angeles Lawyer (May/June 1983) (co-authored with Peter B.
Frank and Jeffrey H. Kinrich).

Committee Publications
“Communicating Understandings in Litigation Services: Engagement Letters,” AICPA Consulting
Services Practice Aid 95-2 (1995).
Statement on Standards for Consulting Services No. 1, AICPA (October 1991).

Selected Speeches
“The Use of Consumer Surveys in Patent Cases for Damage Apportionment”, LES 2012 Winter
Meeting, March 13, 2012, Anaheim, CA
“Evolving IP Value: Recent Developments in Damages and Licensing”, Top IP Retreat, September
16, 2011, Pebble Beach, CA
"Patent Exhaustion", IP Damages Institute, November 8, 2010, Century City, California
"Big Verdicts Under Scrutiny: Taking a Hard Look at the Damages Case", The 2010 Midwest
Intellectual Property Institute, September 24, 2010, Minneapolis, Minnesota
th

“Do’s and Don’ts of Being and Expert Witness”, 24 Annual Bankruptcy and Restructuring
Conference, Association of Insolvency and Restructuring Advisors, June 7, 2008, Las Vegas,
Nevada
“Enforcing the License Agreement, Royalty Audits, Collections, and Litigation” The Intellectual
Property Law Section of the State Bar of California, April 9, 2008, San Francisco, California
“Effective Presentations of Financial Information at Trial”, 2007 Advanced Litigation Conference,
California Society of CPAs, May 3, 2007, Las Vegas, Nevada
“Discounting Damages to Present Value: Today’s Hottest Issues,” panelist, Business Valuation
Resources, July 20, 2005, Telephonic Conference
“Assessing and Proving Damages from Infringement,” panelist, USC Law School 2004 Intellectual
Property Institute, May 25, 2004, Beverly Hills, California
“Economic Damages,” AICPA National Business Valuation Conference, November 17, 2003,
Phoenix, Arizona
“Discovery of Expert Drafts and Notes, Panel Discussion,” Advanced Workshop on Calculating &
Proving Patent Damages, Law Seminars International, November 12, 2003, Seattle, Washington

**Underlined party was my client.

MICHAEL J. WAGNER
Page 6

“Calculating and Presenting Lost Profits: The Bread and Butter of Litigation Services” and “Mock
Arbitration for Lost Profits”, panelist on both presentations, AICPA National Conference on
Advanced Litigation Services, October 1, 2003, Miami, Florida
“Discount Rates and Taxation Issues in Damages,” 2003 Advanced Business Litigation Institute,
California Society of CPAs, May 9, 2003, La Quinta, California
“Current Issues in Patent Damages,” The Sedona Conference, November 10, 2000, Sedona,
Arizona
“Tax Issues in Lost Profits Damage Calculations” and panelist for “Expert Shootout, or Shoot the
Expert,” 2000 AICPA National Advanced Litigation Services Conference, October 17, 2000, Beverly
Hills, California
“IP Valuation: A Critical Component in Transactional and Litigation Strategy,” Silicon Valley
Intellectual Property Law Association, September 20, 2000, Palo Alto, California
“Damages, Damages, Damages: Business Damages In Commercial Litigation,” 1999 AICPA
National Advanced Litigation Services Conference, October 18, 1999, Atlanta, Georgia.
“Commercial Damages: A Case Study on Lost Profits,” 1998 AICPA National Advanced Litigation
Services Conference, October 14, 1998, Tempe, Arizona.
“Damages—What You Need to Know as Taught by the Experts,” 1998 ABA Section of Litigation
Annual Meeting, April 24, 1998, New York, New York.
“Expert Witnessing in a Fraud Case,” 1997 AICPA National Conference on Fraud, December 8,
1997, San Antonio, Texas.
“Advanced Issues in Determining Discount and Growth Rates,” 1997 AICPA National Advanced
Litigation Services Conference, October 16, 1997, Las Vegas, Nevada (with Greg Hallman).
“Alter Ego” and “More Effective Testimony,” EPA Third Annual Financial Analyst Workshop, May 7–
8, 1997, Denver, Colorado.
“More Effective Testimony,” 1996 AICPA National Advanced Litigation Services Conference,
October 1, 1996, New Orleans, Louisiana.
“Expert Witness,” The 1996 AICPA Practitioners’ Symposium, June 10, 1996, Las Vegas, Nevada.
“Calculating Damages,” 1996 Institute of Business Appraisers Conference on Appraising Closely
Held Businesses, January 26, 1996, Orlando, Florida.
“Calculating Damages,” 1995 Institute of Business Appraisers Conference on Appraising Closely
Held Businesses, January 26, 1995, Las Vegas, Nevada.
“The Revised Federal Rules of Civil Procedure That Apply to Expert Witnesses,” 1994 AICPA
National Advanced Litigation Services. Conference, October 20, 1994, Phoenix, Arizona.
“Damages In Employment Litigation,” Employment And Labor Law In Oregon, Lorman Education
Services, April 29, 1994, Portland, Oregon.
“Damages, Time Value of Money” and panel participant on “Practical Problems of Federal Rule of
Civil Procedure No. 26,” 1994 Litigation Advanced Forum, California Society of CPAs, April 25,
1994, Monterey, California.
**Underlined party was my client.

MICHAEL J. WAGNER
Page 7

“Patent Infringement/Intellectual Property,” 1993 Litigation Services Conference, California Society
of CPA’s, December 1, 1993, Los Angeles; December 2, 1993, San Francisco, California.
“Expert Witness Depositions,” 1993 Oregon Society of CPA’s Litigation Support Services
Miniseries, November 17, 1993, Portland, Oregon.
“Panel: The Many Roads to Alternative Dispute Resolution” and “Basic Concepts in Litigation
Services,” Fifth Annual AICPA Conference on “The CPA’s Role in Litigation Services,” July 22–23,
1993, La Jolla, California.
“Professional Standards” and “Litigation Process/Role of Expert Witness” 1993 Litigation Services
Conference, Washington Society of Certified Public Accountants, May 20, 1993, Bellevue,
Washington.
“The Deposition of the Expert Witness,” Fourth Annual AICPA Conference on “The CPA’s Role in
Litigation Services,” July 17, 1992 Washington, DC; October 23, 1992, Las Vegas, Nevada.
“Litigation Services Standards,” 1992 Litigation Services Conference, Washington Society of
Certified Public Accountants, May 9, 1992, Silverdale, Washington.
“The Litigation Process Through Discovery,” 1991 Litigation Services Conference, California Society
of Certified Public Accountants, November 20, 1991, San Francisco; November 21, 1991, Los
Angeles, California.
“Professional Standards and Work Papers,” Oregon Society of CPAs, Litigation Support Services
Conference, September 27, 1991, Portland, Oregon.
“Economic Analysis of Damages: Computing Lost Profits and Reasonable Royalties,” IRR’s
Conference on Securing and Enforcing Intellectual Property Rights for Competitive Advantage,
September 26, 1991, San Francisco, California.
“How to be a Better Testifying Expert,” the Third Annual AICPA Conference on “The CPA’s Role in
Litigation Services,” July 11, 1991, Denver, Colorado; October 10, 1991, Atlanta, Georgia.
“Accounting Standards in Litigation Support—Current and Future,” Colorado Society of CPAs 1990
Litigation Support Conference, December 3,1990, Denver, Colorado.
“Mini Trials—New Work for Experts” and “Issues in Forensic Accounting,” National Forensic
Center’s 7th National Conference, December 8, 1990, Palm Springs, California.
“Deposition of the Expert,” California Society of CPAs 1990 Litigation Services Conference,
November 19, 1990—San Francisco; November 20, 1990, Los Angeles, California.
“Examining Damage Experts,” PLI’s Accountant’s Liability: Trial Strategies Conference, August 10,
1990, San Francisco, California.
“Developing Damages: Mock Trial Demonstration, “AICPA’s Conference on the CPA’s Role in
Litigation Services, July 13, 1990, Dallas, Texas; September 7, 1990, Washington, DC.
“Lost Profits, Business Interruptions” and “The Discovery Process,” 1990 Litigation Consulting
Conference, California Society of Certified Public Accountants, April 26, 1990, Los Angeles,
California.

**Underlined party was my client.

MICHAEL J. WAGNER
Page 8

“Standards in Litigation Services Engagements” and “Expert Witness Strategy Tactics,” Arizona
Society of CPAs’ Conference on the CPA as an Expert, September 25, 1989, Phoenix, Arizona.
“Damage Management,” AICPA’s Conference on the CPA’s Role in Litigation Support Services,
May 12, 1989, San Francisco; July 11, 1989, Boston; October 27, 1989, Chicago; December 8,
1989, Palm Beach, Florida.
“Litigation Services—Damage Studies,” AICPA’s 101st Annual Meeting, October 4, 1988, Los
Angeles, California.
“Litigation Update,” 1988 Marital Dissolution Conference, California Society of Certified Public
Accountants, September 26, 1988, San Francisco; September 27, 1988, Los Angeles, California.
“The Mini-Trial Approach to Dispute Resolution,” Los Angeles County Bar Association and the
American Arbitration Association Conference on New Techniques in Dispute Resolution, February
4, 1988, Los Angeles, California.
“Damages Issues During Trial,” Association of Business Trial Lawyers 14th Annual Seminar,
October 17, 1987, Rancho Mirage, California.
“Litigation Services Committee Update,” 1987 Marital Dissolution Conference, California Society of
Certified Public Accountants, September 22, 1987, Los Angeles, California.
“Using a CPA in Litigation,” 1987 Annual Meeting of the Florida Bar, June 11, 1987, Orlando,
Florida.
“Litigation Services,” 12th Annual AICPA Small Business Management Advisory Services
Conference, September 9–10, 1986, Dallas, Texas.

**Underlined party was my client.