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

Filing 1236

Administrative Motion to File Under Seal Samsung's Objections to Apple's Exhibit List, Proposed Joint Exhibit List and Deposition Designations filed by Samsung Electronics Co. Ltd.. (Attachments: #1 Trac Declaration, #2 Proposed Order, #3 Samsung's Objections, #4 Ex. A, #5 Ex. B, #6 Ex. C, #7 Ex. D)(Maroulis, Victoria) (Filed on 7/13/2012) Modified on 7/16/2012 Pursuant to General Order No. 62 attachment #1 Sealed (dhm, COURT STAFF).

EXHIBIT A

1


Exhibit A - Samsung's General Objections to Apple's Exhibit List
Samsung generally objects to Apple’s Exhibit List for all the reasons discussed in

 Samsung’s motions in limine, filed on July 5, 2012. Samsung further objects to the extent Apple’s
 exhibits are translations that are inaccurate and/or misleading. Samsung will serve its specific
 objections to Apple’s proposed translations according to the schedule agreed to by the parties.
 Finally, Samsung reserves the right to raise additional objections during the proceedings,
 depending on the manner in which an exhibit is offered into evidence.
 Samsung’s Objection To Apple’s Effort To Circumvent The 125-Exhibit Limit By
Designating Multiple Documents As Single Exhibits

Apple has blatantly violated the Court’s July 9, 2012 Minute Order and Case Management

Order which provides that the parties may each identify only 125 exhibits, not counting rebuttal

and impeachment exhibits. Apple makes a complete end-run around the Court’s restriction on the

number of exhibits by artificially combining a large numbers of separate exhibits under a single

exhibit number. Left unchecked, Apple’s gamesmanship will severely penalize Samsung for

playing by the rules and listing 125 proper exhibits. And Samsung is not complaining about a

small number of additional exhibits: Apple crams roughly 498 exhibits into multi-document

“Exhibits” 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 17, 18, 19, 20, 21, 22, 25, 26, 27, 28, 29, and

123. This prejudicial violation of the Court’s effort to streamline this trial should not be

permitted.

For example, Apple’s Exhibit 1 is a 99-page exhibit broken into seven subparts with the

following titles: (i) Sketches of Pre-iPhone Designs Considered by Apple, (ii) CAD Images of
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Pre-iPhone Designs Considered by Apple, (iii) Photographs of Models of Pre-iPhone Designs

Considered by Apple, (iv) Photographs of Other Models of Designs Considered by Apple,
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(v) Sketches of Pre-iPad Designs Considered by Apple, (vi) CAD Images of Pre-iPad Designs

Considered by Apple, and (vii) Photographs of Models of Tablet Designs Considered by Apple.

This “exhibit” consists of over 249 images that Apple cobbled together from roughly 34 different

sources: some of the documents incorporated into this exhibit were produced in this or related

actions; some have no identification or attribution at all; and some are themselves freestanding

02198.51855/4858218 1

Case No. Case No. 11-cv-01846-LHK
-1SAMSUNG'S OBJECTIONS TO APPLE'S EXHIBIT LIST, PROPOSED JOINT EXHIBIT LIST AND
DEPOSITION DESIGNATIONS

1 declaration exhibits, expert report exhibits, and trial exhibits from the recent ITC hearing. No
2 matter how you look at it, this collection of documents cannot be considered one exhibit.
3

As another example, Exhibit 26, which Apple claims will be sponsored by its expert, Mr.

4 Musika, consists of an elaborate chart containing selective and biased quotations from--or
5 comments about--a total of 123 separate and unrelated documents. The total number of
6 documents quoted in this one exhibit almost exceeds the number of permitted exhibits. And
7 Exhibit 27 consists of a chart titled “Summary of Select Document Reflecting Comments on the
8 Smartphone and Tablet Marketplace.” The chart consists of 40 separate line items and each line
9 item contains direct quotations from random third party and Samsung documents that bear no
10 relation to each other. Many of the documents being quoted from were marked as separate
11 exhibits during depositions taken in this matter. As these examples show, Apple’s efforts to
12 shoehorn the content of a multitude of documents into a single exhibit is a clear violation of the
13 Court’s order.
14

In the same vein, Apple’s Exhibit 5 contains select quotations from nine press reports

15 followed by the reports themselves. Exhibit 6 contains quotations from 18 press reports followed
16 by the reports themselves, and Exhibit 17 contains quotations from 28 different news articles and
17 the articles themselves. Each of the reports and articles within these exhibits is a separate, free18 standing document and should count as one exhibit.
19

Apple has also engaged in egregious conduct with video compilations. Exhibit 12 consists

20 of 68 different video files, each containing a separate iPhone advertisement. Likewise, Exhibit 14
21 is comprised of 27 media clips regarding the iPad and iPhone. Once again, each video file is a
22 separate exhibit.
23

Apple has done the same thing with improper compilations of pictures and documents

24 related to alleged design alternatives. Exhibit 10, with a title of “Alternative Designs” on the first
25 page, is a 141-page exhibit consisting of numerous images of 13 different products. Exhibit 20 is
26 a 178-page exhibit with headings such as “Smartphone Alternative Designs,” “Tablet Alternative
27 Designs” and “GUI Alternative Designs.” It includes images and documents relating to 33
28 additional products. These alleged alternative designs are analogous to the prior art references that
02198.51855/4858218 1

Case No. Case No. 11-cv-01846-LHK
-2SAMSUNG'S OBJECTIONS TO APPLE'S EXHIBIT LIST, PROPOSED JOINT EXHIBIT LIST AND
DEPOSITION DESIGNATIONS

1 Samsung included on its exhibit list individually with separate exhibit numbers because they are
2 separate products or other references. If Apple were playing by the rules like Samsung did, then
3 each alleged alternative product would be a separate exhibit.
4

None of these exhibits is permissible as a Federal Rule of Evidence 1006 summary.

5 Indeed, Apple appears to concede this point for all but one of its multi-document "compilations"
6 because Apple identified only Exhibit 123 as an "FRE 1006 summary" in its exhibit list. Federal
7 Rule of Evidence 1006 provides that a party may “use a summary, chart, or calculation to prove
8 the content of voluminous writings, recordings, or photographs that cannot be conveniently
9 examined in court.” Fed. R. Evid. 1006. Federal Rule of Evidence 1006 does not apply to
10 documents that are straightforward and are not voluminous. Highland Capital Mgmt., L.P. v.
11 Schneider, 551 F. Supp. 2d 173, 190 (S.D.N.Y. 2008) (FRE 1006 summaries may only be used
12 when the underlying evidence is so voluminous that it cannot conveniently be examined by a jury
13 and cannot be used where the underlying evidence is “relatively straightforward”). It is typically
14 used to summarize “concrete, mathematical, objective information [that] is capable of accurate
15 presentation in chart or summary form.” U.S. v. Stone, 2012 WL 441168, at *5 (E.D. Mich. Feb.
16 10, 2012); see also United States v. Johnson, 594 F.2d 1253, 1255 (9th Cir. 1979) (“The purpose
17 of Rule 1006 is to allow the use of summaries when the volume of documents being summarized
18 is so large as to make their use impractical or impossible.”) To be sure, Exhibit 123 is no
19 exception to Apple’s improper exhibit designations. The five freestanding documents contained in
20 Exhibit 123 are not voluminous, are straightforward, and can be “conveniently examined in court.”
21 Accordingly, the Court should strike exhibits 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 17, 18, 19, 20,
22 21, 22, 25, 26, 27, 28, 29, and 123 because Apple has violated the Court’s order limiting the
23 number of exhibits for each side to 125. If the Court decides to permit any portion of these
24 exhibits, Samsung should not be disadvantaged because it played by the rules. Instead, Samsung
25 should be granted the right to include 498 additional exhibits on its exhibit list.
26
27
28
02198.51855/4858218 1

Case No. Case No. 11-cv-01846-LHK
-3SAMSUNG'S OBJECTIONS TO APPLE'S EXHIBIT LIST, PROPOSED JOINT EXHIBIT LIST AND
DEPOSITION DESIGNATIONS