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

Filing 1129

MOTION for Reconsideration re 1115 Order on Motion for Miscellaneous Relief,,,,,, #1105 Order on 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 Exhibit to Samsung's Motion, #2 Declaration of Hankil Kang in Support of Samsung's Motion, #3 Exhibit 1 to the Kang Declaration, #4 Exhibit 2 to the Kang Declaration, #5 Exhibit 3 to the Kang Declaration, #6 Exhibit 4 to the Kang Declaration, #7 Exhibit 5 to the Kang Declaration, #8 Exhibit 6 to the Kang Declaration, #9 Exhibit 7 to the Kang Declaration, #10 Exhibit 8 to the Kang Declaration, #11 Exhibit 9 to the Kang Declaration, #12 Exhibit 10 to the Kang Declaration, #13 Exhibit 11 to the Kang Declaration, #14 Exhibit 12 to the Kang Declaration, #15 Exhibit 13 to the Kang Declaration, #16 Exhibit 14 to the Kang Declaration, #17 Exhibit 15 to the Kang Declaration, #18 Exhibit 16 to the Kang Declaration, #19 Exhibit 17 to the Kang Declaration, #20 Proposed Order Granting Samsung's Motion for Reconsideration)(Maroulis, Victoria) (Filed on 6/25/2012)

KANG DECLARATION
EXHIBIT 10

EXHIBIT I
FILED UNDER SEAL

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IN THE 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
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corporation,

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Plaintiff,

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-vs-

No. 11-CV-01846-LHK

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SAMSUNG ELECTRONICS CO., LTD.,
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a Korean business entity; et al.,

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Defendants.
/

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VIDEOTAPED DEPOSITION OF TIMOTHY SHEPPARD - 30(b)(6)

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HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

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SAN FRANCISCO, CALIFORNIA

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WEDNESDAY, FEBRUARY 29, 2012

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Reported by: LOUISE MARIE SOUSOURES, CSR NO. 3575

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Certified LiveNote Reporter

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JOB NO: 47031
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WEDNESDAY, FEBRUARY 29, 2012

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1:26 p.m.

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Deposition of TIMOTHY SHEPPARD,

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held at the offices of Morrison & Foerster, 425 Market

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Street, San Francisco, California, before Louise Marie

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Sousoures, a Certified Shorthand Reporter and a

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Certified LiveNote Reporter

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A P P E A R A N C E S

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FOR THE PLAINTIFF:

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MORRISON & FOERSTER

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755 Page Mill Road

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Palo Alto, CA

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BY:

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[e-mail]

94304

ERIK J. OLSON

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AND

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WILMERHALE

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950 Page Mill Road

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Palo Alto, CA

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BY: MARK D. SELWYN

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94304

[e-mail]

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A P P E A R A N C E S (CONTINUED)

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FOR THE DEFENDANT:

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QUINN EMANUEL URQUHART & SULLIVAN

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865 South Figueroa Street

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Los Angeles, CA

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BY:

90017

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ANTHONY P. ALDEN
[e-mail]

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THE VIDEOGRAPHER:
ALINE MAYER

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ALSO PRESENT:

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JULIE J. HAN

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SENIOR LITIGATION COUNSEL, SAMSUNG

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IT IS HEREBY STIPULATED AND AGREED

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by and between the attorneys for the

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respective parties herein, that filing and

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sealing be and the same are hereby waived.

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IT IS FURTHER STIPULATED AND AGREED

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that all objections, except as to the form

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of the question, shall be reserved to the

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time of the trial.
IT IS FURTHER STIPULATED AND AGREED

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that the within deposition may be sworn to

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and signed before any officer authorized

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to administer an oath, with the same

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force and effect as if signed and sworn

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to before the Court.

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- oOo -

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P R O C E E D I N G S

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-oOo-

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(Exhibit Nos. 1918 and 1919 were marked.)

13:26

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THE VIDEOGRAPHER:

13:26

Good afternoon.

Here

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marks the beginning of the deposition for Tim

13:26

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Sheppard, 30(b)(6) in the matter of Apple,

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Incorporated versus Samsung Electronics Company,

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Limited et al., in the United States District Court,

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Northern District of California, San Jose Division,

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case 11-CV-01846-LHK.

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Deposition is being held at 425 Market Street

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in San Francisco, California on February 29th, 2012 at

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approximately 1:26.

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I am Aline Mayer, a legal video specialist

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from TSG Reporting, headquartered at 747 Third Avenue,

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New York, New York, and our court reporter is Louise

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in association with TSG Reporting.

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Counsel, please introduce yourselves and
state who you represent for the record.
MR. OLSON:

Eric Olson from Morrison &

13:26
13:27
13:27

Foerster representing Apple.

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MR. SELWYN:

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on behalf of Apple.

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MR. ALDEN:

Mark Selwyn from WilmerHale also

13:27
Anthony Alden on behalf of Quinn

Emanuel for Samsung and the witness, Tim Sheppard.

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MS. HAN:

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THE VIDEOGRAPHER:

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Julie Han from Samsung.
The court reporter will

now please swear in the witness.

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13:27
13:27

--oOo--

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13:27

TIMOTHY SHEPPARD,

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having been first duly sworn by the

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Certified Shorthand Reporter to tell

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the truth, the whole truth, and nothing

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but the truth, testified as follows:

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EXAMINATION BY MR. OLSON:
Q.

Mr. Sheppard, you have been deposed in this

case before, correct?

13:27
13:27

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A.

Correct.

13:27

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Q.

And have your job responsibilities changed in

13:27

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a material way since your deposition in January of

13:27

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this year?

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A.

No.

13:27

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Q.

And is it correct that you are responsible

13:27

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for accounting functions at Samsung Technology --

13:27

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excuse me, Telecommunications America?

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A.

Yes.

13:27

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Q.

And if I refer to that as STA, you would

13:27

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understand what I was referring to?

13:27

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A.

Yes.

13:28

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Q.

Do you have any role in the accounting at

13:28

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Samsung Electronics America?

13:28

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A.

No.

13:28

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Q.

Are you here to testify on behalf of Samsung

13:28

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with respect to any topics under a Rule 30(b)(6)

13:28

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notice?

13:28

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A.

I believe so.

13:28

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Q.

Are you here to testify on behalf of Samsung

13:28

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Telecommunications America?

13:28

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A.

You mean STA?

13:28

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Q.

Yes.

13:28

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A.

Yes.

13:28

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Q.

Did I say it wrong?

13:28

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A.

No.

13:28

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I thought you previously said you were

going to refer to it as STA.
Q.

I meant if I do refer to it, we will know

what I was talking about.

13:28
13:28
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A.

Yes.

13:28

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Q.

And just given that, let me make sure the

13:28

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record is clear.

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13:28

You are here to testify on behalf of STA or

13:28

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Samsung Telecommunications America with respect to the

13:28

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notice?

13:28

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A.

Yes.

13:28

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Q.

And are you here to testify on behalf of

13:28

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Samsung Electronics America with respect to the

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notice?

13:28

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A.

Yes.

13:28

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Q.

And are you here to testify on behalf of

13:28

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Samsung Electronics Corporation, the Korean parent in

13:28

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any way?

13:29

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A.

No.

13:29

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Q.

Let me hand you what I've had the court

13:29

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reporter mark as Exhibit 1918 and also what I've had

13:29

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her mark as Exhibit 1919.

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Starting with Exhibit 1918, can you tell me
what that is?
A.

13:29
13:29

Reading the front cover appears to be a

deposition notice.

13:29
13:29

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Q.

Have you ever seen Exhibit 1918 before?

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A.

It's possible.

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Q.

Did you see any list of topics you were being

I'm not --

13:30

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designated to respond to before you came to the

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deposition today?

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A.

Yes.

13:30

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Q.

In what form did you see that?

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A.

In the form of a Word document.

13:30

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Q.

From whom?

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MR. ALDEN:

Well, let me just state, caution

13:30

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you to the extent that counsel sent you a document in

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connection with the preparation of the deposition I'll

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A.

No.

14:06

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Q.

Were you ultimately able to validate whether

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the report you were looking at was accurate?

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A.

Yes.

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Q.

And was it accurate?

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A.

Yes.

14:07

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MR. ALDEN:

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THE WITNESS:

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MR. OLSON:

Objection, asked and answered.
Yes.
I'm going to mark as the first

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14:07
14:07

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exhibit in order -- the next exhibit in order,

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Exhibit 1920, a document that has been printed from a

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native spreadsheet that was given to us on February

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3rd and the Bates number of the document as it came to

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us was SAMNDCA 323946.

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I have placed that Bates number on the

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document as well on the first page, an indication it

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was marked highly confidential.

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(Exhibit No. 1920 was marked.)
BY MR. OLSON:

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Q.

14:08
14:08

Mr. Sheppard, while you take a look at that,

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I'm going to have marked as the next exhibit in order

14:08

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Exhibit 1921 a document that is SAMNDCA 3259495 to

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503.

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MR. ALDEN:

Let me state for the record as

discussed with counsel prior to the deposition there

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have been some additional spreadsheets produced which

14:08

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I believe would supersede Exhibits 1920 and 1921.

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(Exhibit No. 1921 was marked.)

14:08

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MR. OLSON:

14:08

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So are you representing 1920 and

1921 are incomplete or inaccurate?

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MR. ALDEN:

14:08

No, I believe that most of the

14:09

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data in the new spreadsheets is the same as the data

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in the old spreadsheets, but my understanding is that

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they -- the new spreadsheets are intended to replace

14:09

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the old ones and consolidate the two spreadsheets

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you've marked as Exhibit 1920 and 1921.

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MR. OLSON:

So let me ask and have you

14:09

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represent it for the benefit of the record.

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case, then, the new document solely combines what is

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Exhibit 1920 and 1921?

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MR. ALDEN:

Is it the

I am not in a position to make

14:09

14:09

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that representation.

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BY MR. OLSON:

14:09

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Q.

Mr. Sheppard, have you ever seen Exhibit 1920

before?

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14:09

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A.

Yes.

14:09

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Q.

When did you see it?

14:09

MR. ALDEN:

14:10

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Again, I'll object and instruct

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you not to answer on the basis of the attorney-client

14:10

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privilege to the extent you saw it during the meeting

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with counsel.

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the question.

14:10

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BY MR. OLSON:

14:10

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5

Q.

If you otherwise saw it, you can answer

Have you ever seen Exhibit 1920 other than in

the presence of counsel?

14:10

14:10
14:10

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A.

No.

14:10

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Q.

Do you understand Exhibit 1920 to have been

14:10

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solely prepared for the purposes of this litigation?

14:10

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A.

Yes, my understanding.

14:10

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Q.

Was any part of it prepared in the ordinary

14:10

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course of business on behalf of STA?

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MR. ALDEN:

Objection, vague and ambiguous.

BY MR. OLSON:
Q.

14:10
14:10
14:10
14:10

Was any document in the format of

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Let me ask a better question.

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Exhibit 1920 prepared at STA in the ordinary course of

14:10

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business?

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A.

No.

14:10

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Q.

Was any document in the format of

14:10

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Exhibit 1920 prepared in the ordinary course of

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business at SEA?

14:11

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A.

No.

14:11

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Q.

Was any document in the format of

14:11

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Exhibit 1920 prepared in the ordinary course of

14:11

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business at SEC?

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MR. ALDEN:

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THE WITNESS:

Objection, beyond the scope.
I have no personal knowledge of

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14:11

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what's prepared at SEC.

14:11

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BY MR. OLSON:

14:11

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Q.

Do you know who prepared Exhibit 1920?

14:11

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A.

I do not.

14:11

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Q.

Do you have any information on where the

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information prepared in 1920 comes from?
A.

I know where the data for STA and SEA comes

from.

14:11
14:11

Q.

14:11
All right.

Is it your understanding that

14:11

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Exhibit 1920 was prepared at the instructions of

14:11

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counsel?

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MR. ALDEN:

Objection, to the extent that

14:12

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your knowledge would -- comes from discussions with

14:12

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counsel, I'll instruct you not to answer that

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question.

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If otherwise, you can answer that question.

14:12

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THE WITNESS:

14:12

I think I explained earlier I

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don't know who prepared this document.

14:12

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BY MR. OLSON:

14:12

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23

Q.

Do you know whether it's a member of your

staff that prepared it?

14:12
14:12

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A.

I don't know means I don't know.

14:12

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Q.

Are your answers the same as to Exhibit 1921?

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A.

So in the context of answering the question

14:16

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do I have any information about this document that

14:16

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didn't come from counsel, the answer is no.

14:16

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MR. OLSON:

Let me have marked as the next

14:17

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exhibit in order, Exhibit 1922, a document marked

14:17

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Bates numbered SAMNDCA 354292 to 354385 and I'll

14:17

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represent for the record this was received yesterday

14:17

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at approximately 3 p.m.

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(Exhibit No. 1922 was marked.)
BY MR. OLSON:
Q.

14:17
14:17

Let me first ask you, Mr. Sheppard, have you

14:18

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ever seen Exhibit 1922 other than in the presence of

14:18

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counsel?

14:18

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A.

No.

14:18

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Q.

Is it your understanding that Exhibit 1922

14:18

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was prepared solely for purposes of this litigation?

14:18

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A.

That is my understanding.

14:18

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Q.

Do you have any understanding as to how

14:18

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Exhibit 1922 differs from Exhibit 1920 and 1921?

14:19

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A.

Yes, I have some understanding.

14:19

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Q.

What's your understanding?

14:19

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A.

Let me just validate one moment.

14:19

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My understanding is the individual pages at

14:20

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the product level are the same in both reports, but

14:20

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the products in this I believe is a different list

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THE WITNESS:

document in the presence of counsel.

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I've only reviewed this

So I don't think I can give you an answer.
BY MR. OLSON:

14:24
14:24
14:24

What, if anything, have you done to validate

14:24

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whether the data that's contained in Exhibit 1922 is

14:24

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accurate?

14:24

A.

I selected one product and I reran SAP data

14:24

to confirm that it matches the data in this report.

14:24

8
9

Q.

14:24

10

Q.

Which product was that?

14:24

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A.

The I500.

14:24

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Q.

The I500?

14:25

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A.

Yes.

14:25

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Q.

Does that product also have another name?

14:25

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A.

Not to me.

14:25

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Q.

And did you only seek to validate unit sales

14:25

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and revenue or did you validate any other lines?

14:25

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A.

I validated all five lines.

14:25

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Q.

And by the five lines, you mean the five

14:25

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lines that are listed under STA quantity, sales, COGS,

14:25

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expense and operating profit?

14:25

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A.

Correct.

14:25

23

Q.

Did you seek to validate any of the

14:25

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information in the SEC category -- excuse me, SEA

14:25

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category?

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A.

Yes.

14:25

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Q.

What did you do in that regard?

14:25

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A.

I think I had discussions with the colleague

14:26

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5
6

I mentioned before at SEC, Giho Ro.
Q.

And Mr. Ro gave you information on the SEA

14:26
14:26

category?

14:26

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A.

Yes.

14:26

8

Q.

What information did he give you to validate

14:26

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10
11

that the information regarding SEA was valid?
A.

He confirmed that the data is -- is a pure

extract from an SAP system.

14:26
14:26
14:26

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Q.

Was he the one who extracted it?

14:26

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A.

I do not know.

14:26

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Q.

How did he validate that's true?

14:26

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A.

I don't know.

14:26

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in that sense.

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I didn't ask him to validate

14:26

When you say validate it's true, what's true
are you referring to?

14:27

How did he validate that the information

14:27

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that's contained in Exhibit 1922 is from the SAP

14:27

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database on behalf of SEA?

14:27

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23

Q.

14:26

A.

Oh, okay.

14:27

In that case, I have to actually say he did

14:27

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send me a confirmation e-mail that explained which

14:27

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fields he had extracted from SEA, from the SAP system.

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Q.

When did he send this e-mail to you?

14:27

2

A.

Last night.

14:27

3

Q.

And which fields did he say were extracted

14:27

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from the SAP database?

14:27

5

A.

I don't recall the fields.

14:27

6

Q.

There's only five fields there, correct?

14:27

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A.

Yes, there are five lines, but that doesn't

14:27

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9

represent five fields in SAP.
Q.

Do you know which lines he validated that are

14:27
14:28

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under SEA?

14:28

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A.

14:28

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13
14

He validated all five lines on the

spreadsheet.
Q.

14:28

And what's your understanding as to how he

14:28

did that?

14:28

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A.

So have you read the spreadsheet?

14:28

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Q.

I have.

14:28

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A.

Okay, good.

14:28

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So as you can tell, the summary page here

14:28

19

appears to be a list of the many pages behind it.

14:28

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21

Would you agree with that?

22
23

14:28
14:28

yesterday at seven when I got this.

24
25

Actually, in the case of 1920, it wasn't.
So I haven't been able to do the math since

Q.

14:28

14:28

Are you able to tell me that's true?
A.

14:28

I thought you got this at three.

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Q.

It was sent to us at three.

14:28

2

A.

Okay.

14:29

3

Q.

Are you able to tell me whether or not the

14:29

4

totals on the first five pages are, in fact, the

14:29

5

addition of all of the material that's behind it?

14:29

6

A.

I cannot tell you that I -- I can tell you I

14:29

7

have not validated that calculation on the

14:29

8

spreadsheet.

14:29

9

Q.

You don't know?

14:29

10

A.

I don't know.

14:29

11

Q.

Do you know whether that's true of the unit

14:29

12
13

sales data?
A.

14:29

Well, I haven't established, I don't know.

I

14:29

14

think you can ask this question a hundred ways and

14:29

15

I'll still have to give you the same answer.

14:29

16

Q.

The same as to any line item?

14:29

17

A.

Yes.

14:29

18

Q.

How did -- who was the gentleman in your

14:29

19

general accounting department that you spoke to about

14:29

20

this document?

14:29

I've forgotten his name.

21

A.

Christopher Park.

14:29

22

Q.

Yes.

14:29

23
24
25

How did Mr. Park validate the

information around the I500?
A.

He was able to run a report out of SAP for

that particular model.

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14:30
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Highly Confidential - Attorneys Eyes Only

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1
2

Q.

And does the report only include the five

lines that are listed under STA?

3

A.

4

lines.

5

Q.

The report he ran contained more than five

14:30
14:30
14:30
14:30

Other than checking the I500, have you done

14:30

6

anything else to determine whether or not the data

14:30

7

that's in Exhibit 1922 is valid?

14:30

8

A.

Yes.

14:31

9

Q.

What?

14:31

10

A.

The data for the STA was prepared by STA

14:31

11

staff.

12

Q.

Who prepared the data?

14:31

13

A.

So Jaehee -- what's the last name, I forgot

14:31

14:31

14

her last name, J-A-E-H-E-E, I forgot the last name for

14:31

15

the moment.

14:32

16

Q.

To whom -- is that a male or female?

14:32

17

A.

Female.

14:32

18

Q.

To whom did she give the data?

14:32

19

A.

I do not know.

14:32

20

Q.

How did it get from her to being included in

14:32

21
22
23
24
25

Exhibit 1922?
A.

14:32

I think I said before I don't know who

prepared this report.
Q.

How do you know that her work -- this

document is an accurate reflection of her work?

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14:32
14:32
14:32
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1

A.

14:32

One, the conversation I had in counsel's

2

So two answers to that.

14:32

3

presence with SEC staff that I referred to earlier and

14:32

4

more importantly he was validating it by validation

14:33

5

with Christopher Park.

14:33

6

Q.

With respect to the one product?

14:33

7

A.

Yes.

14:33

8

Q.

What is it about the conversation you had

14:33

9
10
11
12

with the person from SEC that causes you to believe

14:33

her work is accurately reflected in Exhibit 1922?

14:33

A.

Because he told me because -- it was accurate

as reflected in this report.

14:33
14:33

13

Q.

How did he know?

14:33

14

A.

I don't know.

14:33

15

Q.

Was he involved in the preparation of

14:33

16

Exhibit 1922?

14:33

17

A.

I don't know who prepared Exhibit 1922.

14:33

18

Q.

I didn't ask that question.

14:33

Was this gentleman involved in the

14:33

19
20
21

preparation of Exhibit 1922 in any way?
A.

I don't know who prepared the Exhibit 1922.

14:33
14:34

22

It's very hard for me to then speculate as to who may

14:34

23

have been involved in the preparation of document

14:34

24

1922.

14:34

25

Q.

What's your understanding as to how he knew

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that the information was -- that's in Exhibit 1922 is

14:34

2

an accurate representation of what's in STA's system?

14:34

3

A.

Can you repeat that question?

14:34

4

Q.

Right.

14:34

5

What -- see if I can rephrase it in a

way that may be easier for you to understand.

6

14:34

What did he tell you that caused you to

14:34

7

believe that Exhibit 1922 is an accurate reflection of

14:34

8

information that's in STA's system of record?

14:34

9

A.

He told me that no one at SEC had prepared

14:34

10

any data for STA and the data had been prepared by STA

14:35

11

staff.

14:35

12

Q.

Did he identify who?

14:35

13

A.

Yes, I just named the person.

14:35

14

Q.

Mr. Park?

14:35

15

A.

No, Giho.

14:35

16

Q.

Did he identify anybody else?

14:35

17

A.

No.

14:35

18

Q.

Did he identify anything else he had done to

14:35

19

validate the data in any way as to STA?

14:35

20

A.

No.

14:35

21

Q.

Are you able to say on behalf of Samsung on

14:35

22

the record whether or not this document is a -- 1922

14:35

23

is a complete and authoritative and accurate statement

14:35

24

of the quantity of each of the products that are

14:35

25

listed -- quantity sold by period of each of the

14:35

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products that are listed on Exhibit 1922?

2

MR. ALDEN:

Objection, vague and ambiguous

14:35
14:35

3

and Mr. Sheppard is designated on behalf of STA and

14:35

4

SEA only so his answers can only be on behalf of those

14:35

5

entities.

14:36

6
7
8
9

THE WITNESS:

Do you want to --

BY MR. OLSON:
Q.

Sure.

14:36
14:36

Let me see if I can correct it in a

way that you can answer.

14:36
14:36

10

On behalf of STA and SEA, are you able to say

14:36

11

whether Exhibit 1922 is an authoritative and accurate

14:36

12

statement of the unit sales of each of the products

14:36

13

that are listed under the category STA and SEA in

14:36

14

Exhibit 1922?

14:36

15

A.

Yes.

14:36

16

MR. ALDEN:

17

THE WITNESS:

Objection, vague and ambiguous.
Authoritative -- so best of my

14:36
14:36

18

knowledge based on the analysis I've done I believe

14:36

19

these are accurate -- these spreadsheets contain

14:36

20

accurate data about the sales of the units listed in

14:36

21

this document.

14:36

22

BY MR. OLSON:

14:36

23

Q.

All right.

Not quite my question.

14:36

24

Are you able to state one way or the other,

14:36

25

yes or no, whether this document Exhibit 1922 is an

14:37

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authoritative and accurate statement of the unit sales

14:37

2

of each of the products that are listed as it relates

14:37

3

to the category STA and SEA on the spreadsheet?

14:37

4

MR. ALDEN:

5

THE WITNESS:

6

Same objection.

14:37

I'm not familiar with the term

authoritative in the accounting context.

14:37
14:37

7

So what I can say is that I believe this data

14:37

8

is an accurate reflection of what is contained in our

14:37

9

SAP database for STA and SEA.

14:37

BY MR. OLSON:

14:37

10
11

And other than speaking to Mr. Park and

14:37

12

Mr. Ro, what other analysis or information do you have

14:37

13

that causes you to believe that?

14:37

14

Q.

A.

That that's it.

14:38

MR. OLSON:

Let me have marked as the next

14:38

16

exhibit in order, Exhibit 1923, a document that is

14:38

17

SAMNDCA 354386 through 354600.

14:38

15

18
19
20

(Exhibit No. 1923 was marked.)

14:38

BY MR. OLSON:
Q.

14:38

Mr. Sheppard, let me ask you first:

Have you

14:39

21

ever seen Exhibit 1923 before other than in the

14:39

22

presence of counsel?

14:39

23
24
25

A.

Give me a second and try to figure out what

this is.

14:40
14:40

I'd have to say no, I've not.

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THE VIDEOGRAPHER:

Here marks the end of tape

15:00

2

1 in today's deposition, we're off the record, it's

15:00

3

3:00 o'clock.

15:00

4

(Recess taken.)

5

THE VIDEOGRAPHER:

6

Here marks the beginning

of tape 2 in the deposition of Mr. Sheppard.

7
8

15:00

We are back on the record, the time is 3:15.
BY MR. OLSON:

9

Q.

15:14
15:14
15:14
15:14

Mr. Sheppard, did you have anyone on your

15:14

10

staff check any of the information as to any of the

15:14

11

products that are included in Exhibit 1923?

15:14

12

A.

No.

15:14

13

Q.

Did you ask anybody at SEA or SEC's staff to

15:14

14

check the information as to any of the products that

15:14

15

are in Exhibit 1923?

15:14

16

A.

No, but 1923 doesn't contain any SEA data.

15:15

17

Q.

So obviously, then, you didn't do it as to

15:15

18

SEA.

15:15

19

Did you ask anybody at SEC to validate any of

15:15

20

the information as to a specific product like you did

15:15

21

with Mr. Park in any of the products in Exhibit 1923?

15:15

22

A.

No.

Once I had established how the data was

15:15

23

extracted from SAP, and I was available to validate

15:15

24

the point that Mr. Ro had made to me, I was quite

15:15

25

comfortable these were actual reflections what is in

15:15

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SAP.

15:15

2

Q.

Did you see Mr. Ro?

15:15

3

A.

Yes, remember I said earlier I had spoken to

15:15

4
5
6

Mr. Ro at SEC.
Q.

15:15

I thought I heard Rowland so I wanted to make

sure.

15:15
15:15

7

A.

It's R-O, not a common name.

15:15

8

Q.

And what is your understanding as to how the

15:15

9

data that's included on Exhibit 1922 and 1923 was

15:16

10

extracted?

15:16

11

A.

15:16

1922 and 1923, oh -- so ignoring the summary

12

page which I believe this just represents a

15:16

13

spreadsheet, but if you actually go to --

15:16

14
15
16

Q.

Let me pause you there.

When you say

'spreadsheet,' the addition of the other items?
A.

So I -- in my mind, the front -- so in native

15:16
15:16
15:16

17

form you would see this, I think, as a -- I would

15:16

18

imagine you would see this, I haven't seen this in

15:16

19

native form -- at least I don't think so -- in the

15:16

20

first page this would be the first tab of a

15:16

21

spreadsheet.

15:16

22
23
24
25

After that, you then see a tab for each -each product.

15:16
15:16

And by validating the data back to SAP for
the I500, I'm confident each tab then represents just

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a straight extract from SAP and summarized in this

15:17

2

spreadsheet format.

15:17

3
4

Q.

And how did you -- how did you come to the

understanding that this was an extract from SAP?

15:17
15:17

5

A.

Because that's our system of record.

15:17

6

Q.

But did someone tell you that or did you know

15:17

7
8
9

that the minute you saw it?
A.

I suspected that the minute I saw it, but I

validated it with a discussion with Mr. Ro.

10

Then I asked one of my -- Mr. Park to

15:17
15:17
15:17
15:17

11

actually reperform the extract to validate it was

15:17

12

accurately done.

15:17

13

Q.

With respect to the I500, did Mr. Park do it

15:17

14

just for one period of time or for all periods of

15:17

15

time?

15:17

16
17

A.

He did it for all the periods that were in --

let me see which one did he do.

15:17
15:17

18

He did it for the periods 2010, 2011.

15:17

19

So I didn't want him to just do it an extract

15:18

20

for one month.

21
22
23

I wanted to see a broader validation.

I wanted to be very confident this was
complete data and I knew where it came from.
Q.

15:18
15:18
15:18

If you'll grab Exhibit 1922, please, if

15:18

24

you'll first turn to the page that's marked at the top

15:18

25

Acclaim and at the bottom 354296.

15:18

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2

Q.

In this case if you look at the next page it

shows what your total sales were, right?

3

A.

15:40

193.

15:40

4

15:40

5
6

A.

Using that ratio of about 10 percent it's in

the right ballpark.

7
8

15:40

15:40
15:40

This number is net of whatever the number
was.

15:40
15:40

9

Yes, this sounds about right.

15:40

Do you have any understanding as to why there

15:40

11

is no information in the category manufacturing below

15:40

12

with respect to the months August, September and

15:40

13

December?

15:40

A.

15:40

10

14

Q.

15

This is the SEC part of the document.
I don't know how they prepared this.

I can

15:40

16

only speculate they would -- no manufacturing occurred

15:40

17

in that period.

15:41

18

Q.

Do you have any understanding as to why

15:41

19

there's nothing in the category COGS or expense for

15:41

20

STA in September of 2011?

15:41

21
22
23

A.

If we hadn't sold any units we wouldn't have

any COGS entries to book.
So we would have to have sold some products

15:41
15:41
15:41

24

through to be able to record an entry there or had to

15:41

25

receive DOA units back to record a reverse entry.

15:41

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1
2

A.

a spreadsheet, but I don't know for sure.

3
4
5
6

If you have a better suggestion, we're very

11

16:33
16:33
16:33

Q.

16:33

How much profit did STA transfer to SEC in

2010 through the transfer pricing mechanism?
MR. ALDEN:

Objection, assumes facts not in

evidence.

9
10

16:33

interested.

7
8

To the best of my knowledge, they are kept in

16:33
16:34
16:34

THE WITNESS:

I don't know off the top of my

head.

16:34
16:34

2010, we had revenues at eight and a half to

16:34

12

9 billion and our APA requirement was to have about

16:34

13

one percent, just over one percent as profit to be

16:34
16:34

15

But I'm not sure, I'd have to go look at the

16:34

16

financials to figure out how much was actually

16:34

17

transferred to SEC and how much was expenses incurred

16:34

18

locally that got us to that right answer.

16:34

19

BY MR. OLSON:

16:34

20

16:34

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2

That's the way the math
works out.

3

16:35
16:35

So to get

, you have

16:35

4

to deduct local expenses which would be my expense, my

16:35

5

salary, and a number of different activities, local

16:35

6

rents and offices and all the employee work force and

16:35

7

then you deduct the cost of the -- of the inventory

16:35

8

that SEC sold to us which we sold on to carriers.

16:35

9

Q.

16:35

The one percent is the amount of the

10

Let me see if I'm understanding it.

16:35

11

projected or planned operating margin for STA; is that

16:35

12

right?

16:35

13

A.

Well, I simplify for this discussion that

16:35

14

under the APA agreement it works out because of our

16:35

15

Berry ratio target we're supposed to hit it would

16:35

16

approximate one to one and a half percent operating

16:35

17

margin.

16:35

18
19

Q.

Whatever other profits are made in margin on

a consolidated basis you were making 20 percent

16:36
16:36

20

16:36
22
23
24
25

MR. ALDEN:

Objection, vague and ambiguous,

assumes facts not in evidence.
THE WITNESS:

Well, supply chain is

complicated and spans multiple countries.

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2

I don't know where profit is earned in the
whole entire supply chain.

3

16:36
16:36

So if manufacturing is -- supplies are in

16:36

4

multiple countries, I don't know where their

16:36

5

individual relative profits lie in the entire supply

16:36

6

chain.

16:36

7

So it could be China, could be the U.S., if

16:36

8

we have supplies in the U.S., making profit that are

16:36

9

selling to Samsung, there's a lot of people involved

16:36

10

in manufacturing handsets.

16:36

11

BY MR. OLSON:

16:36

12

So in the hypothetical situation in which on

16:36

13

a consolidated basis from STA all the way up through

16:36

14

all the subsidiaries, Samsung collectively is making

16:36

15

Q.

, the plan by means of the APA

16:37

16

16:37
18
19
20

MR. ALDEN:

Objection, assumes facts not in

evidence, vague and ambiguous.

16:37

Well, firstly, I don't know

16:37

21

what the actual total consolidated profit is so I

16:37

22

don't know if it's

16:37

23

wonderful number to get to, but I don't know what the

16:37

24

reality is.

16:37

25

THE WITNESS:

16:37

.

Sounds like a

In terms of attempting to move profit, I

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don't think that's the way it works.

2

16:37

So the negotiation for the APA is really a

16:37

3

three-party negotiation between the Korean IRS, the

16:37

4

U.S. IRS and Samsung to say based on our economic

16:37

5

activity, they hire economists, we hire economists,

16:37

6

the Korean government hires economists and says based

16:37

7

on the activity STA does, this is a fair and

16:37

8

reasonable amount of profit that reflects the activity

16:38

9

that STA is doing.

16:38

10

Based on that, that's how the tax is paid.

16:38

11

So the tax is paid no matter whether STA's

16:38

12

having a good or bad year, guaranteed income to the

16:38

13

U.S. government.

16:38

14

BY MR. OLSON:

16:38

15

What I'm trying to understand is the

16:38

16

guarantee is limited to by virtue of the Berry ratio

16:38

17

ultimately approximately one to one and a half

16:38

18

percent; is that correct?

16:38

19

Q.

A.

21
22

16:38

There's no risk from the U.S. government

20

Yeah, but it's guaranteed no matter what.

16:38

point of view.
Q.

They're in a good position.

16:38

Any other profits go to other entities and

16:38

23

would be paid taxes elsewhere outside the United

16:38

24

States, correct?

16:38

25

A.

I don't know if there are profits.

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You're

16:38

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1

MR. OLSON:

Let me have marked as the next

17:18

2

exhibit in order 1926 a document that's identified as

17:18

3

S-ITC 500028870 to 28895 and labeled on the front as

17:18

4

part of a global consolidation package system.

17:18

5

(Exhibit No. 1926 was marked.)

17:18

6

THE WITNESS:

17:20

7

Okay.

BY MR. OLSON:

17:20

8

Q.

What is Exhibit 1926?

17:20

9

A.

It's an example of a global consolidation

17:20

10

package system report.

17:20

11

Q.

12

month?

13

A.

Yes.

17:20

14

Q.

And does it reflect information on STA's

17:20

15

And is this provided by STA to SEC every

17:20
17:20

financial results as of the end of a fiscal period?

17:20

16

A.

It does.

17:20

17

Q.

And in this case, it's February 2010,

17:20

18

correct?

17:20

19

A.

Correct.

17:20

20

Q.

And one of these is prepared for every month?

17:20

21

A.

Yes.

17:20

22

Q.

If you'll turn to the section that starts at

17:20

23

the top income statement, is this a detailed statement

17:20

24

of the accounts and their balances or amounts for that

17:21

25

period of February 2010 -- February 28th, 2010 from

17:21

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STA?

17:21

2

MR. ALDEN:

3

THE WITNESS:

Objection, vague and ambiguous.
So running from left to right,

17:21
17:21

4

the left-hand column represents the account GL code

17:21

5

from the standard global chart of accounts.

17:21

6

The account name is the name used globally.

17:21

7

February 2010, the third column represents

17:21

8

activity for the month of February 2010 and the next

17:21

9

column represents activity for the month of February

17:21

2011.

17:21

10
11

And all this -- it says top right-hand corner

12

local currency.

13

BY MR. OLSON:

14

Q.

All these numbers are U.S. dollars.

17:21
17:21
17:21

So if you look at the first section it says

17:22

15

sales and it goes down to a new item that says cost of

17:22

16

goods sold.

17:22

17

Do you see that?

17:22

18

A.

Yes.

17:22

19

Q.

Looking at Exhibit 1922 and 1923 where it

17:22

20

says STA sales, would it be -- would that information

17:22

21

that's presented there be available in the detail that

17:22

22

is provided in -- on this page?

17:22

23

A.

So let's -- the short answer is yes, but let

17:22

24

me qualify that because this could get a little

17:22

25

confusing.

17:22

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So this activity here represents all activity

17:22

2

for businesses for STA which includes network, handset

17:22

3

sales, represent accessory sales, represent all

17:22

4

activity, whereas this report is looking at specific

17:22

5

products.

17:22

6

So if I take -- so this would include

17:22

7

activity for selling parts to add warranty, repair

17:22

8

fenders, it would include the revenue for R&D that's

17:23

9

required to be booked under the APA agreement.

17:23

10
11
12

This activity here contains a lot more than
just on this document.
Q.

Understood.

17:23
17:23

Is the information that's in

17:23

13

1922 and 1923 in that sales line available at this

17:23

14

level of detail?

17:23

15

MR. ALDEN:

16

THE WITNESS:

17

Both of these are just pure extracts straight

Objection, vague and ambiguous.
Yes, it is.

17:23
17:23
17:23

18

from SAP.

17:23

19

BY MR. OLSON:

17:23

20

Q.

And the same then would be true as to -- that

17:23

21

the cost of goods line, COGS line is available in the

17:23

22

degree of detail that's available under cost of goods

17:23

23

sold on Exhibit 1926, correct?

17:23

24

MR. ALDEN:

25

THE WITNESS:

Same objection.
I'm sorry.

Yes.

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The account code on the left is the lowest

17:23

2

level in the GL that you can extract account level

17:23

3

information at the general ledger.

17:24

4

I don't know how familiar you are with SAP,

17:24

5

there are other modules you can get to a finer level

17:24

6

of granularity, depending on what data you want to

17:24

7

look at, but from a general ledger point of view, this

17:24

8

is as low as you go from an account code point of

17:24

9

view.

17:24

BY MR. OLSON:

17:24

10
11

Q.

12

these.

13

Let me simplify the need to go through any of

17:24
17:24

All of the line items in sales COGS expense

17:24

14

are available from the GL at this level of detail as

17:24

15

presented in page -- Exhibit 1926?

17:24

16

A.

Correct, and when I referred earlier that I

17:24

17

validated the data, when I pulled the data for the

17:24

18

I500, I went to this level of detail to confirm that

17:24

19

this data was exactly matching.

17:24

20
21
22
23

Q.

When you said "this level of detail," that's

the level of detail in Exhibit 1926?
A.

17:24
17:24

This is -- yes, exactly.

17:24

So the thing about SAP, you can extract the

17:25

24

data and say show me at the sales COGS operating, show

17:25

25

me those four lines because you can pull it at that

17:25

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level or you can say show me at this line and pull

17:25

2

every single line item.

17:25

3
4

You pull it either way it's an extraction
from the same database the same way.

5

17:25
17:25

It's a question of whether you want a

17:25

6

spreadsheet with 400 lines or you want it with five

17:25

7

lines.

17:25

8
9
10

The answer is going to be the same either
way.

17:25
17:25

From your understanding how you understand

17:25

11

the material in Exhibit 1922 and 1923 to have been

17:25

12

prepared, that as to the information in either of

17:25

13

those, anything under R&D would ultimately be zero?

17:25

14

Q.

Correct, it would, it would.

17:25

15

Let me rephrase that.

17:26

16

To the extent I'm testifying about SEA and

17:26

17

A.

STA, the R&D loans would be zero in that part.

We

17:26

17:26
20

Q.

I'm talking about in the SEA and STA part.

17:26

21

A.

Just want to be sure we're talking about the

17:26

22
23

same thing.

17:26

Q.

17:26

In the line that says expense under SEA and

24

STA in 1922 and 1923, does it incorporate what is

17:26

25

labeled as I4 and I5 or is it just one of them?

17:26

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do was mark the entire transcript as highly

18:13

2

confidential attorneys' eyes only under the protective

18:13

3

order.

18:13

4

MR. OLSON:

All right.

18:13

5

MR. ALDEN:

I should say and all the exhibits

18:13

6

attached to the transcript.

18:13

7

MR. OLSON:

18:13

8

We -- handful of things.

18:13

9

One, I do not feel we're in a position to

18:13

10

close this deposition in part because of the late

18:13

11

production of documents in violation of a court order,

18:13

12

in fact, I believe in violation of two court orders.

18:13

13

No objection to that.

And believe that in certain categories,

18:13

14

Mr. Sheppard was not adequately prepared, but with

18:13

15

that reservation, I don't have any questions and don't

18:13

16

have any objection to the marking of the transcript

18:14

17

confidential.

18:14

18

I'll just say that we disagree

18:14

19

with counsel's position that the deposition is not

18:14

20

closed or that Mr. Sheppard hasn't been adequately

18:14

21

prepared.

18:14

22

MR. ALDEN:

This is Mr. Sheppard's fourth deposition in

18:14

23

connection with Samsung-Apple matters, his second

24

deposition in the Northern District of California.

25

believe his life has been sufficiently interrupted and

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I

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consider the deposition closed.

18:14

2

I have nothing further, though.

18:14

3

THE VIDEOGRAPHER:

18:14

Here marks the end of

4

today's deposition of Tim Sheppard, total number of

18:14

5

tapes used is three.

18:14

6

6:14.

We are off the record, it's

18:14

7
8
9
10

(Whereupon, at 6:14 p.m. the deposition of
TIMOTHY SHEPPARD was adjourned.)

11
12
13
14
15

TIMOTHY SHEPPARD

16
17
18
19
20
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I, LOUISE MARIE SOUSOURES, duly

2

authorized to administer oaths pursuant to Section

3

2093(b) of the California Code of Civil Procedure, do

4

hereby certify: That the witness in the foregoing

5

deposition was by me duly sworn to testify the truth

6

in the within-entitled cause; that said deposition was

7

taken at the time and place therein cited; that the

8

testimony of the said witness was reported by me and

9

was hereafter transcribed under my direction into

10

typewriting; that the foregoing is a complete and

11

accurate record of said testimony; and that the

12

witness was given an opportunity to read and correct

13

said deposition and to subscribe the same.

14

Should the signature of the witness not be affixed

15

to the deposition, the witness shall not have availed

16

himself or herself of the opportunity to sign or the

17

signature has been waived.

18

I further certify that I am not of counsel, nor

19

attorney for any of the parties in the foregoing

20

deposition and caption named, nor in any way

21

interested in the outcome of the cause named in said

22

caption.

23

DATE: 3-1-2012

24

LOUISE MARIE SOUSOURES, CSR. #3575

25

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1
2

INDEX OF EXAMINATIONS

3

PAGE

4

BY MR. OLSON

7, 172

5

BY MR. ALDEN

170

6
7
8
9
10

INDEX OF EXHIBITS

11
12

NUMBER

13

Exhibit 1918 Apple, Inc.'s seventh rule of

14

DESCRIPTION

Exhibit 1919 Document showing product names

16

Exhibit 1920 Document production Nos.

18
19
20
21

6

30(b)(6) deposition notice

15

17

PAGE

6
37

SAMNDCA 00323946
Exhibit 1921 Document production Nos.

38

SAMNDCA 00325459 to 503
Exhibit 1922 Document production Nos.

44

SAMNDCA 00354292 to 385

22

Exhibit 1923 Document production Nos.

23

SAMNDCA 00354386 to 4600

24

Exhibit 1924 Document production Nos.

25

SAMNDCA 00280457 to 465
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I N D E X (CONTINUED)

2

NUMBER

DESCRIPTION

PAGE

3

Exhibit 1925 Document production Nos.

136

4
5
6
7
8
9
10
11
12

S-ITC 500030711 to 714
Exhibit 1926 Document production Nos.

142

S-ITC 500028870 to 895
Exhibit 1927 Document production Nos.

153

S-ITC 003362010 to 045
Exhibit 1928 Document production Nos.

164

S-ITC 500018418 to 467
Exhibit 1929 Document production Nos.
SAMNDCA 11172582 to 590

13
14
15
16
17
18
19
20
21
22
23
24
25

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ERRATA SHEET FOR THE TRANSCRIPT OF:

2

Case Name: Apple Inc v. Samsung Electronics Company Limited

3

Dep. Date: Wednesday, February 29, 2012

4

Deponent: TIMOTHY SHEPPARD

5

CORRECTIONS:

6

Pg. Ln. Now Reads

7

___ ___ ______________ ______________ ______

8

___ ___ ______________ ______________ ______

9

___ ___ ______________ ______________ ______

10

___ ___ ______________ ______________ ______

11

___ ___ ______________ ______________ ______

12

___ ___ ______________ ______________ ______

13

___ ___ ______________ ______________ ______

14

___ ___ ______________ ______________ ______

15

___ ___ ______________ ______________ ______

16

___ ___ ______________ ______________ ______

17

___ ___ ______________ ______________ ______

18

____________________

19

Signature of Deponent

20

SUBSCRIBED AND SWORN BEFORE ME

Should Read

Reason

THIS____DAY OF____________, 2011.
21

_______________________________
22

(Notary Public) MY COMMISSION EXPIRES:_______

23

TIMOTHY SHEPPARD
24
25

TSG Reporting - Worldwide - 877-702-9580