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

Filing 1088

Administrative Motion to File Under Seal filed by Samsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: #1 Proposed Order, #2 Reply in Support of Motion for Rule 37 Sanctions, #3 Reply Declaration of Diane C. Hutnyan, #4 Exhibit 1, #5 Exhibit 2, #6 Exhibit 3, #7 Exhibit 4, #8 Exhibit 5, #9 Exhibit 6, #10 Exhibit 7, #11 Exhibit 8, #12 Exhibit 9, #13 Exhibit 10, #14 Exhibit 11, #15 Exhibit 12, #16 Exhibit 13)(Maroulis, Victoria) (Filed on 6/12/2012)

EXHIBIT 1

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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APPLE, INC.,
PLAINTIFF,
VS.
SAMSUNG ELECTRONICS CO.
LTD., ET AL,
DEFENDANT.

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CV-11-1846-LHK
SAN JOSE, CALIFORNIA
APRIL 9, 2012
PAGES 1-189

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TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE PAUL S. GREWAL
UNITED STATES DISTRICT JUDGE

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A P P E A R A N C E S:

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FOR THE PLAINTIFF:

MORRISON & FOERSTER, LLP
BY: ALLISON TUCHER
NATHAN SABRI
JOBY MARTIN
425 MARKET STREET
SAN FRANCISCO, CA 94105

FOR THE DEFENDANT:

QUINN EMANUEL
BY: VICTORIA MAROULIS
SARA JENKINS
555 TWIN DOLPHIN DRIVE, 5TH FL
REDWOOD SHORES, CA 94065

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(APPEARANCES CONTINUED ON THE NEXT PAGE)

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OFFICIAL COURT REPORTER: SUMMER FISHER, CSR, CRR
CERTIFICATE NUMBER 13185
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FOR THE PLAINTIFF:

MORRISON & FOERSTER, LLP
BY: ERIK OLSON
755 PAGE MILL ROAD
PALO ALTO, CA 94304

FOR THE DEFENDANT:

QUINN EMANUEL
BY: DIANE HUTNYAN
ANTHONY ALDEN
CURRAN WALKER
865 S. FIGUEROA ST., 10TH FLOOR
LOS ANGELES, CALIFORNIA 90017

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ITS MOTION WAS A CASE THAT WOULD NOT ALLOW

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PRODUCTION OF PRIOR DEPOSITION TESTIMONY WHERE THE

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DEPONENTS WERE NOT WITNESSES IN THE CASE AT ISSUE.

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THE WHOLE THRUST OF THAT MOTION AND ORDER

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WAS PRIOR TESTIMONY OF APPLE WITNESSES, NOT ALL

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EMPLOYEES.

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SO THAT'S THE ONE DIRECTION SAMSUNG IS
NOW ATTEMPTING TO EXPAND

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THE COURT:

I WANT TO UNDERSTAND APPLE'S

VIEW.

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ARE YOU TELLING ME MY ORDER LIMITS

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APPLE'S OBLIGATION TO THOSE INDIVIDUALS WHO WILL

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TESTIFY AT TRIAL?

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MR. SABRI:

OR WHO WERE DEPOSED IN THIS

THE COURT:

IS THERE ANY LANGUAGE IN MY

CASE.

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ORDER THAT YOU CAN POINT ME TO THAT SUPPORTS THAT

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POSITION?

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MR. SABRI:

WITNESSES, WE BELIEVE IS

CLEAR, YOUR HONOR.
APPLE'S -- PRIOR DEPOSITION OF APPLE
WITNESSES TESTIFYING IN AN EMPLOYEE CAPACITY.
THE COURT:

SO YOUR POSITION IS WHEN I

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SAID WITNESSES I MEANT WITNESSES IN THIS CASE, I.E.

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DEPOSITION WITNESSES OR TRIAL WITNESSES, I WASN'T
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REFERRING FOR EXAMPLE TO DEPOSITION WITNESSES IN

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THE PRIOR CASE?

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MR. SABRI:

YES, YOUR HONOR.

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WE DO BELIEVE THAT IS WHAT THE ORDER

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REFERRED TO.

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CONTEXT OF THE MOTION WOULD ONLY HAVE GONE THAT

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FAR.

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AND WE BELIEVE THE ORDER READ IN THE

THE COURT:

DON'T YOU AGREE, COUNSEL,

THAT THERE'S NO BURDEN OBJECTION HERE, NO SERIOUS

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BURDEN OBJECTION ON APPLE'S PART.

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THE MATERIALS FAIRLY QUICKLY IF YOU HAD TO.

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MR. SABRI:

YOU CAN PRODUCE

PRODUCTION OF ALL EMPLOYEES

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WOULD BE SIGNIFICANTLY MORE BURDENSOME.

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ITEM --

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THE COURT:

ONE

YOU DON'T HAVE A DATABASE AT

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MORRISON & FOERSTER THAT HAS ALL OF THESE

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DEPOSITION TRANSCRIPTS AVAILABLE TO YOU?

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MR. SABRI:

WE DO FOR WITNESSES.

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APPLE'S DATABASE -- SO AS WE EXPLAINED IN THE

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BRIEFING, APPLE STORES THESE TRANSCRIPTS ON A

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WITNESS-BY-WITNESS BASIS.

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SO WHEN WE SEARCH FOR TRANSCRIPTS WE

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DON'T GO NOKIA DELAWARE, LET'S PULL ALL

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TRANSCRIPTS, WE SAY WITH WHO ARE THE PEOPLE WE

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NEED.
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THE COURT:

RIGHT.

SO YOU GO GET THE

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LIST OF PEOPLE WHO TESTIFIED IN NOKIA, DELAWARE AND

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PULL EACH ONE MANUALLY, RIGHT?

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MR. SABRI:

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HOWEVER, WHAT WAS DISCUSSED IN THE

WE COULD DO THAT EXTRA STEP.

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EARLIER ARGUMENT, WHAT WE ARE HERE ON IS A MOTION

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TO ENFORCE THE PRIOR ORDER, NOT A MOTION TO COMPEL.

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THE PARTIES HAVE NOT MET AND CONFERRED ON

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THE POINT THAT YOUR HONOR IS DISCUSSING NOW.

THE

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ISSUE HAS NEVER BEEN BRIEFED OVER WHETHER SUCH A

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BROAD PRODUCTION --

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THE COURT:
ANALYSIS.

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SO LET'S TALK ABOUT THE

OUR TIME IS LIMITED.
WHAT OBJECTION HAS APPLE HAD IN PRODUCING

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TRANSCRIPTS FROM INDIVIDUALS OTHER THAN THOSE THAT

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THEY HAVE ALREADY PRODUCED?

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WHAT'S THE PROBLEM?

THERE'S A DEPOSITION

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TRANSCRIPT SITTING IN AN APPLE DATABASE AS I SPEAK

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THAT YOU CAN PRODUCE IN ABOUT 10 MINUTES, I

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SUSPECT, MAYBE 20.

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SO THERE'S NO BURDEN OBJECTION.

WHAT IS THE OBJECTION TO PRODUCING,

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SUBJECT TO THE PROTECTIVE ORDER IN THIS LITIGATION

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OF ALL THE BELLS AND WHISTLES, WHAT'S YOUR

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OBJECTION?

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MR. SABRI:

THE ONLY OBJECTIONS, YOUR
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HONOR, WOULD BE WITHOUT SEEING WHO THE EMPLOYEES

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AND THE PRIOR WITNESSES ARE, I DON'T THE WHAT THE

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RELEVANCE WOULD BE.

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THE COURT:

SO YOU DIDN'T EVALUATE THAT

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ISSUE BEFORE YOU TOOK THE POSITION OR IN FILING

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YOUR OPPOSITION TO THIS MOTION?

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MR. SABRI:

WE BELIEVE IT WOULD BE

BURDENSOME.

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WELL, LET ME TAKE A QUICK SIDE STEP --

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THE COURT:

WHAT'S THE BURDEN OF

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PRODUCING A DEPOSITION TRANSCRIPT OR EVEN A

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THOUSAND OF THEM FROM A DATABASE?

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MR. SABRI:

I HAVE TO SAY, WHAT I DON'T

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KNOW YOUR HONOR IS WHETHER THERE EVEN WOULD BE ANY

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OTHER TRANSCRIPTS THAT WOULD NEED TO BE PRODUCED,

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IF THERE ARE OTHER RELEVANT TRANSCRIPTS.

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ME TELL YOU WHY.

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DETOUR, BUT I THINK IF YOU WILL INDULGE ME YOU WILL

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SEE WHY.

LET

THIS IS GOING TO SOUND LIKE A

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THE COURT:

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GO AHEAD.

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MR. SABRI:

PROCEED AT YOUR PERIL.

MS. HUTNYAN LISTED A FEW

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PROCEEDINGS, AND I BELIEVE THE IMPRESSION THAT HAS

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BEEN GIVEN IS APPLE HAS SIMPLY NOT PRODUCED ANY

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TRANSCRIPTS OR HAS PRODUCED HARDLY ANY TRANSCRIPTS
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FROM THESE RELATED PROCEEDINGS, AND THAT'S

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FACTUALLY WRONG.

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THE COURT:

WELL, WHAT ABOUT THE '796?

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MR. SABRI:

'796, I WILL TURN TO THAT IN

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A MOMENT, IF I MAY.

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WE BELIEVE THE '796 IS A WHOLE SEPARATE

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ISSUE.

IT IS NOT A PREDICTION, AN OF ISSUE OF

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PRODUCTION OF THE '796 CASE, IT'S SOLELY AN ISSUE

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OF USE.

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BUT BEFORE I TURN TO THAT --

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THE COURT:

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WHAT'S THE DIFFERENCE BETWEEN

PRODUCTION AND USE?

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MR. SABRI:

BOTH PARTIES AGREED -- IT'S

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NOT JUST APPLE, BOTH PARTIES AGREED AT THE OUTSET

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OF THESE CASES THAT THEY WOULD NOT USE DEPOSITION

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TRANSCRIPTS FROM THE ITC '796 CASE IN THIS CASE.

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AND THERE'S A CRITICAL REASON FOR THAT

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DISTINCTION, AND THAT IS JUDGE KOH IMPLEMENTED A

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250-HOUR DEPOSITION IN THIS CASE.

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LIMITS IN THE ITC.

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THERE ARE NO

SO APPLE ABIDED BY THAT LIMIT, MADE TOUGH

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CALLS, WHO SHOULD WE DEPOSE, WHAT SHOULD WE ASK

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THEM, LET'S KEEP OURSELVES WITHIN THE 250-HOUR

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LIMIT.

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SAMSUNG APPARENTLY DID NOT.
WHAT WE ENDED UP SEEING IS IN MANY DESIGN
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DEPOSITIONS IN THE ITC, SAMSUNG ASKING QUESTIONS

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THAT WERE SOLELY RELATED TO THE NORTHERN DISTRICT

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OF CALIFORNIA.

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APPLE'S COUNSEL HAD TO OBJECT ON THE

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RECORD, AND IT SEEMS NOW THAT THE PLAN ALL ALONG

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WAS IN CONTRAVENTION OF THE PARTY'S AGREEMENT FOR

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SAMSUNG AT THE LAST MINUTE TO SAY, LET'S TRY TO USE

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ALL OF THAT DEPOSITION FROM THE ITC, THE UNLIMITED

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AMOUNT IN THIS CASE.

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SO NUMBER ONE, IT'S JUST A VIOLATION OF
THE PARTY'S AGREEMENT.

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NUMBER TWO, WE KNOW SAMSUNG HAS THESE --

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THE COURT:

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I APOLOGIZE FOR INTERRUPTING

YOU.

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IF I GO BACK AND READ THROUGH THE MYRIAD

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OF MEET AND CONFER LETTERS AND EXCHANGES YOU ALL

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HAVE GIVEN ME TO CONSIDER, YOU ARE TELLING ME

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SOMEWHERE IN THAT PILE, THIS ONE, MAYBE THIS ONE,

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THERE'S A DOCUMENT WHERE YOU ALL AGREE WITHOUT

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CATEGORY, WITHOUT EXCEPTION THAT THE DEPOSITIONS

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THAT WERE TAKEN IN THE ITC MAY NOT BE USED IN THIS

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CASE?

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MR. SABRI:
TO A LETTER.

I DON'T KNOW IF IT'S REDUCED

WHAT I DO KNOW IS --

THE COURT:

SO IF IT'S NOT IN WRITING -133

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MR. SABRI:

SO IT WAS REDUCED -- WE DO

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HAVE A MEMORIALIZATION OF IT WHICH IS WHAT YOU ARE

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LOOKING FOR, THE PROTECTIVE ORDERS THAT WERE

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PROPOSED IN THIS CASE BY BOTH SIDES.

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SO MS. HUTNYAN BEGAN WITH THE ND CAL

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PROTECTIVE ORDER.

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OF DOCUMENTS AND WE CAN SEEK MORE.

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SHE SAID WE AGREED TO CROSS USE

WHAT SHE LEFT OUT, IT'S THE SENTENCE

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RIGHT AFTER, "WE AGREE TO CROSS USE OF DOCUMENTS"

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AND THIS PROVISION DOES NOT APPLY TO TRANSCRIPTS.

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THAT WAS IN WHAT BOTH PARTIES PROPOSED IN JANUARY.

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THE REASON BEHIND THAT LANGUAGE WAS THIS

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AGREEMENT THAT I'VE JUST BEEN DISCUSSING.

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KNOW TO WHAT EXTENT THAT AGREEMENT WAS, OVER THE

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PHONE OR VIA E-MAIL AND LETTERS.

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VERY CLEAR THERE'S A LIMIT IN THIS CASE, THERE'S NO

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LIMIT IN THAT CASE.

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ALL DEPOSITION TESTIMONY FROM AN UNLIMITED SOURCE

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APPLY IN A CASE WHERE THERE IS A LIMIT.

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I DON'T

I DO KNOW IT WAS

WE JUST CAN'T AGREE TO HAVE

SO APPLE ABIDED BY THE LIMIT, MADE TOUGH

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CALLS, AND NOW SAMSUNG WANTS TO AVOID THE

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CONSEQUENCES OF THOSE TOUGH CALLS AND THAT

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AGREEMENT.

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THE COURT:

SO I WANT TO MAKE SURE I

UNDERSTAND APPLE'S POSITION.
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REALLY, YOUR ONLY OBJECTION TO PRODUCING

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THE TRANSCRIPTS THAT ARE ESSENTIALLY BURDENLESS IS

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THAT IT WOULD BREAK THE DEAL YOU CUT WITH SAMSUNG?

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MR. SABRI:

IT WOULD BREAK THE DEAL.

IT

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WOULD ALLOW SAMSUNG TO GET THIS BENEFIT OF AN

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IMMENSE SOURCE OF DEPOSITION AT THE END OF THE

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GAME.

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DISCOVERY THAT BOTH PARTIES OPERATED UNDER.

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ALLOWS SAMSUNG TO REAP THE BENEFITS OF IMPROPER USE

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IT'S CHANGING THE RULES AFTER THE CLOSE OF
AND IT

OF THAT PROCEEDING FOR THAT CASE.
SO WHAT WE'VE SEEN IS QUESTIONS ASKED IN
ITC DEPOSITIONS THAT RELATES SOLELY TO ND CAL.

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WHAT WE SAW AFTER JUDGE KOH DENIED THE

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REQUEST FOR ADMINISTRATIVE RELIEF, AS YOUR HONOR

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MAY KNOW, DISCOVERY MUST END RELEVANCE COULD BE A

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LIMITLESS -- A BOTTOMLESS PIT, THAT'S NOT HER

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LANGUAGE, THAT'S MY PARAPHRASE.

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THEN WE SAW WAS A WHOLESALE DUMPING OF

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THE LETTERS FROM THIS CASE TO THE ITC CASE WHERE IN

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A SPAN OF THREE DAYS, EIGHT LETTERS, 40 CATEGORIES

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OF DOCUMENTS ALL FROM THE NORTHERN DISTRICT OF

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CALIFORNIA --

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THE COURT:

IS IT REALLY TRUE THAT THE

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ITC DOESN'T IMPOSE ANY LIMITS, DO THEY AGREE WITH

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THAT CHARACTERIZATION?
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CERTIFICATE OF REPORTER

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I, THE UNDERSIGNED OFFICIAL COURT
REPORTER OF THE UNITED STATES DISTRICT COURT FOR

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THE NORTHERN DISTRICT OF CALIFORNIA, 280 SOUTH

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FIRST STREET, SAN JOSE, CALIFORNIA, DO HEREBY

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CERTIFY:

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THAT THE FOREGOING TRANSCRIPT,

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CERTIFICATE INCLUSIVE, CONSTITUTES A TRUE, FULL AND

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CORRECT TRANSCRIPT OF MY SHORTHAND NOTES TAKEN AS

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SUCH OFFICIAL COURT REPORTER OF THE PROCEEDINGS

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HEREINBEFORE ENTITLED AND REDUCED BY COMPUTER-AIDED

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TRANSCRIPTION TO THE BEST OF MY ABILITY.

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__________________________
SUMMER A. FISHER, CSR, CRR
CERTIFICATE NUMBER 13185

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