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

Filing 1098

Declaration of Cyndi Wheeler in Support of #1061 Administrative Motion to File Under Seal Samsung's Reply In Support of Motion To Exclude Opinions of Certain of Apple's Experts, #1067 Administrative Motion to File Under Seal , #1060 Administrative Motion to File Under Seal , #1069 Administrative Motion to File Under Seal Exhibits to Trac Declaration in Support of Reply to Samsung's Motion for Summary Judgment, #1074 Administrative Motion to File Under Seal , #1063 Administrative Motion to File Under Seal Samsung's Reply in Support of Samsung's Motion for Summary Judgment filed byApple Inc.. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D, #5 Proposed Order)(Related document(s) #1061 , #1067 , #1060 , #1069 , #1074 , #1063 ) (Jacobs, Michael) (Filed on 6/14/2012)

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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]

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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]

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,
Plaintiff,

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v.

Case No. 11-cv-01846-LHK (PSG)
DECLARATION OF CYNDI WHEELER
IN SUPPORT OF SAMSUNG’S
ADMINISTRATIVE MOTIONS TO FILE
DOCUMENTS UNDER SEAL

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,
Defendants.

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DECLARATION OF CYNDI WHEELER IN SUPPORT OF SAMSUNG’S MOTIONS TO FILE UNDER SEAL
CASE NO. 11-CV-01846-LHK (PSG)
sf- 3157567

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I, Cyndi Wheeler, hereby declare as follows:

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1.

I am an attorney for Apple Inc. (“Apple”). I submit this declaration in support of

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Samsung’s Administrative Motions to File Under Seal (Dkt. Nos. 1060, 1061, 1063, 1067, 1069,

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and 1074) pursuant to Local Rules 7-11 and 79-5. I have personal knowledge of the matters set

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forth below. If called as a witness I could and would competently testify as follows.

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Declaration of Michael J. Wagner in Support of Samsung’s Reply In Support of

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Samsung’s Motion to Strike Expert Testimony Based on Undisclosed Facts and Theories

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(“Wagner Declaration”) (Dkt. No. 1060-35)

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2.

Exhibit B to the Wagner Declaration is a true and correct copy of Volume I of the

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April 20, 2012 Corrected Expert Report of Michael J. Wagner. I am informed and believe that

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this report contains information confidential to Samsung, as set forth in the Declaration of Bill

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Trac in Support of Samsung’s Administrative Motions to File Documents Under Seal (Dkt.

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No. 1071), and therefore I have reviewed only a redacted version of the report. The portion of the

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report I have reviewed contains non-public Apple confidential information relating to Apple’s

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products, and could be used to Apple’s disadvantage by competitors if it were not filed under

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seal. Because this expert report contains the confidential information of both parties, they have

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stipulated that it should be submitted under seal in full and not on the public record. Exhibit B

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should be sealed in its entirety.

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3.

Exhibit C to the Wagner Declaration is a true and correct copy of a summary of

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Apple’s Licenses and Agreements. It contains highly confidential and commercially sensitive

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business information, including confidential information regarding licensing agreements and

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potential licensing agreements with business partners. The documents discussed contain Apple

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and third party proprietary information that is highly sensitive and highly confidential to the

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company and to those third parties. Exhibit C should be sealed in its entirety.

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4.

To the extent the Wagner Declaration itself refers to or discusses the exhibits

above, it should be sealed for the same reasons.

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DECLARATION OF CYNDI WHEELER IN SUPPORT OF SAMSUNG’S MOTIONS TO FILE UNDER SEAL
CASE NO. 11-CV-01846-LHK (PSG)
sf- 3157567

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Declaration of Christopher Price In Support of Samsung’s Reply In Support of

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Samsung’s Motion to Strike Expert Testimony Based on Undisclosed Facts and Theories

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(“Price Declaration”) (Dkt. 1060-3)

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5.

Exhibits 1-6 and 13 to the Price Declaration are true and correct copies of license

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agreements and licensing-related documents between Apple and third parties, which are subject to

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non-disclosure agreements. They contain highly confidential and commercially sensitive

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business information, including confidential information regarding licensing agreements and

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potential licensing agreements with business partners. These exhibits should be sealed in its

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entirety.

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6.

Exhibit 20 to the Price Declaration is a true and correct copy of a document

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produced by Apple in this case as Bates number APLNDC-Y0000055416 and marked “Highly

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Confidential—Attorneys’ Eyes Only.” This document contains specific non-public financial data

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that is highly confidential to Apple. The exhibit should be sealed in its entirety.

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7.

Exhibit 21 to the Price Declaration is a true and correct copy of a document

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produced by Apple in this case as Bates number APLNDC-Y0000055417 and marked “Highly

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Confidential—Attorneys’ Eyes Only.” This document contains specific non-public financial data

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that is highly confidential to Apple. It should be sealed in its entirety.

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8.

Exhibit 29 to the Price declaration is a true and correct copy of an excerpt of the

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transcript of the April 20, 2012 deposition of Sanjay Sood, Ph.D. It discusses the focus of a

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confidential consumer research study. This business information was created at a significant cost

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to Apple, and could be used by Apple’s competitors to its disadvantage, particularly because it

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discusses Apple's direct competitors. The exhibit should be sealed in its entirety.

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9.

To the extent the Price Declaration itself refers to or discusses the exhibits above,

it should be sealed for the same reasons.
10.

Apple does not maintain a claim of confidentiality over Exhibit 30 to the Price

Declaration.

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DECLARATION OF CYNDI WHEELER IN SUPPORT OF SAMSUNG’S MOTIONS TO FILE UNDER SEAL
CASE NO. 11-CV-01846-LHK (PSG)
sf- 3157567

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Declaration of Joby Martin In Support of Samsung’s Reply In Support of Samsung’s

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Motion to Exclude Opinions of Certain of Apple’s Experts (“Martin Declaration”)

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(Dkt. 1061-2)

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Martin Declaration.

Apple does not maintain a claim of confidentiality over Exhibits 1 or 4-7 to the

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Declaration of Brian Von Herzen, Ph.D., In Support of Samsung’s Reply In Support

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of Samsung’s Motion to Strike Expert Testimony Based on Undisclosed Facts and Theories

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(“Von Herzen Declaration”) (Dkt. No. 1067-2)

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12.

Apple does not maintain a claim of confidentiality over Exhibits 4-6 to the Von

Herzen Declaration.
Declaration of Bill Trac In Support of Samsung’s Reply In Support of Samsung’s
Motion for Summary Judgment (“Trac Declaration”) (Dkt. No. 1068)
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Exhibit 14 to the Trac Declaration is a true and correct copy of a letter from

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counsel for Samsung to counsel for Apple. It contains highly confidential and commercially

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sensitive business information, including confidential discussions between the parties relating to

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legal disputes and discovery procedures. The letter also contains internal Apple code names for

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its products and trade secret information reflecting Apple’s product design process, and should be

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partially sealed. A proposed redacted version is attached as Exhibit A.

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14.

Exhibit 15 to the Trac Declaration is a true and correct copy of a letter from

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counsel for Samsung to counsel for Apple. It contains highly confidential and commercially

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sensitive business information, including confidential discussions between the parties relating to

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legal disputes and discovery procedures, and should be partially sealed. A proposed redacted

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version is attached as Exhibit B.

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15.

Exhibit 16 to the Trac Declaration is a true and correct copy of a letter from

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counsel for Samsung to counsel for Apple. It contains highly confidential and commercially

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sensitive business information, including confidential discussions between the parties relating to

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legal disputes and discovery procedures, and should be partially sealed. A proposed redacted

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version is attached as Exhibit C.
DECLARATION OF CYNDI WHEELER IN SUPPORT OF SAMSUNG’S MOTIONS TO FILE UNDER SEAL
CASE NO. 11-CV-01846-LHK (PSG)
sf- 3157567

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Exhibit 17 to the Trac Declaration is a true and correct copy of a letter from

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counsel for Samsung to counsel for Apple. It contains highly confidential and commercially

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sensitive business information, including confidential discussions between the parties relating to

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legal disputes and discovery procedures, and should be partially sealed. A proposed redacted

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version is attached as Exhibit D.

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17.

Exhibits 19-21 to the Trac Declaration are portions of unpublished patent

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applications. Unpublished patent applications are so highly confidential that courts recognize a

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heightened relevancy standard for their production, as the Court has acknowledged. (See, e.g.,

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Order Granting-in-Part Samsung’s Motions to Compel and to Enforce [Dkt No. 867] at 4-5)

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(discussing “clear congressional determination that a design patent application is entitled to a

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period of confidentiality” and “significant risk of competitive harm that could result from

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disclosure of [Apple’s] pending design patents”). These exhibits should be sealed in their entirety.

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18.

To the extent the Trac Declaration itself refers to or discusses the exhibits above, it

should be sealed for the same reasons.
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Apple does not maintain a claim of confidentiality over Exhibits 1-2, 8-10, 18, 22-

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Declaration of Trevor Darrell in Support of Samsung's Motion to Strike Expert

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Testimony Based on Undisclosed Facts and Theories (“Darrell Declaration”) (Dkt. No.

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1074-2)

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Apple does not maintain a claim of confidentiality on Exhibits D and E to the

Darrell Declaration.

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*** *** ***
21.

Samsung’s Reply In Support of Samsung’s Motion to Strike Expert Testimony

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Based on Undisclosed Facts and Theories and Samsung’s Reply In Support of Samsung’s Motion

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for Summary Judgment should be sealed to the extent they refer to or discuss the exhibits above

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for the same reasons.

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22.

It is Apple’s policy not to disclose or describe its non-public business strategy

information, licensing agreements, financial data, consumer research data, information relating to
DECLARATION OF CYNDI WHEELER IN SUPPORT OF SAMSUNG’S MOTIONS TO FILE UNDER SEAL
CASE NO. 11-CV-01846-LHK (PSG)
sf- 3157567

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legal disputes and discovery procedures, and unpublished patent application information to third

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parties. The above-described documents reveal highly confidential information that, if disclosed,

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could be used by Apple’s competitors to Apple’s disadvantage. The requested relief is necessary

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and narrowly tailored to protect the confidentiality of this information.

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I declare under penalty of perjury that the foregoing is true and correct. Executed this
14th day of June, 2012 at Cupertino, California.

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/s/ Cyndi Wheeler
Cyndi Wheeler

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DECLARATION OF CYNDI WHEELER IN SUPPORT OF SAMSUNG’S MOTIONS TO FILE UNDER SEAL
CASE NO. 11-CV-01846-LHK (PSG)
sf- 3157567

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ATTESTATION OF E-FILED SIGNATURE

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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 Cyndi Wheeler has

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concurred in this filing.

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Dated: June 14, 2012

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/s/ Michael A. Jacobs
Michael A. Jacobs

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DECLARATION OF CYNDI WHEELER IN SUPPORT OF SAMSUNG’S MOTIONS TO FILE UNDER SEAL
CASE NO. 11-CV-01846-LHK (PSG)
sf- 3157567

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