Apple Inc. v. Samsung Electronics Co. Ltd. et al
Filing
1317
Administrative Motion to File Under Seal Apple's Renewed Motion to Seal filed by Apple Inc.. (Attachments: # 1 Proposed Order, # 2 Declaration of Mark D. Selwyn, # 3 Declaration of Nathan Sabri, # 4 Declaration of Erica Tierney)(Jacobs, Michael) (Filed on 7/24/2012)
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HAROLD J. MCELHINNY (CA SBN 66781)
hmcelhinny@mofo.com
MICHAEL A. JACOBS (CA SBN 111664)
mjacobs@mofo.com
RACHEL KREVANS (CA SBN 116421)
rkrevans@mofo.com
JENNIFER LEE TAYLOR (CA SBN 161368)
jtaylor@mofo.com
ALISON M. TUCHER (CA SBN 171363)
atucher@mofo.com
RICHARD S.J. HUNG (CA SBN 197425)
rhung@mofo.com
JASON R. BARTLETT (CA SBN 214530)
jasonbartlett@mofo.com
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: (415) 268-7000
Facsimile: (415) 268-7522
WILLIAM F. LEE
william.lee@wilmerhale.com
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
Telephone: (617) 526-6000
Facsimile: (617) 526-5000
MARK D. SELWYN (SBN 244180)
mark.selwyn@wilmerhale.com
WILMER CUTLER PICKERING
HALE AND DORR LLP
950 Page Mill Road
Palo Alto, California 94304
Telephone: (650) 858-6000
Facsimile: (650) 858-6100
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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
DECLARATION OF ERICA TIERNEY IN
SUPPORT OF APPLE’S RENEWED
MOTION TO 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 ERICA TIERNEY IN SUPPORT OF APPLE’S RENEWED MOTION TO SEAL
CASE NO. 11-CV-01846-LHK
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I, Erica Tierney, 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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Apple’s Renewed Motion to Seal filed herewith. I have personal knowledge of the matters set
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forth below or understand them to be true from internal discussions at Apple. If called as a
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witness I could and would competently testify as follows.
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2.
Apple seeks in its Renewed Motion to Seal only to seal the most critically
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sensitive categories of information: (a) highly sensitive and non-public financial and
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manufacturing information (cost data, product line details, profit margins, and capacity data); (b)
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third-party confidential research from Apple’s business partners that would severely impact the
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market for the third-party’s research reports; (c) specific terms of licenses, past settlements, and
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acquisitions, and (d) a detailed, 200-page electrical schematic with extensive details on the
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touchscreen modules and other components of Apple’s products. Each of these categories of
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information would expose Apple to serious and irreparable competitive harm if filed publicly.
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3.
Apple’s cost, product line information, profit margins, and capacity data would
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severely harm Apple competitively if released to the public. This information provides
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significantly more detail than companies in this industry disclose. It would allow competitors to
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tailor their expenditures, budgets, and production strategies specifically to counter Apple. With
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respect to capacity information, competitors would learn when Apple is typically stretched thinly
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and when Apple typically has excess capacity, and could alter their production timing
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accordingly. The capacity information at issue is extensive and comprehensive, covering periods
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as recent as the first quarter of 2012. With respect to cost information, Apple’s competitors and
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suppliers could use this information to alter their pricing on products competitive to Apple or
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components Apple uses in its products. With respect to product line information, Apple’s
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competitors would know precisely which of Apple’s products are selling the most strongly and
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could alter their development, product offerings, and marketing strategies to counter Apple.
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None of this information is publicly disclosed by Apple or its competitors in the industry, for the
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above reasons. Third parties may also consider information relating to the price Apple pays for
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DECLARATION OF ERICA TIERNEY IN SUPPORT OF APPLE’S RENEWED MOTION TO SEAL
CASE NO. 11-CV-01846-LHK
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its components to be confidential trade secret information that would cause them harm if released
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to the public.
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4.
Public disclosure of licenses, settlements, and acquisitions would negatively affect
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Apple’s future licenses, settlements, and acquisitions. Competitors and potential counterparties to
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licensing, settlement and acquisition agreements would gain an unfair insight into Apple’s
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business strategies and cost/benefit analyses. Using their knowledge of the precise substantive
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and financial terms of previously nonpublic agreements, they would be able to calibrate their
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negotiation strategies with Apple using that unfair advantage.
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5.
Apple’s license agreements are also the subject of nondisclosure agreements and
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are highly confidential to the third parties that signed those agreements with Apple. Those third
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parties would likely consider public disclosure of information about these license agreements to
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be extremely harmful to them.
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6.
The detailed electrical schematic at issue is trade secret information. It is a more
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than 200 page detailed schematic that shows the electrical configuration of Apple’s proprietary
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touchscreen modules and other components of the iPhone. Disclosure of the details of Apple’s
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products to this level of specificity gives competitors highly sensitive information that would
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enable them to copy numerous aspects of Apple’s engineering. Apple’s competitors would learn
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the precise makeup and limits of the products to which the schematic is relevant. The
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comprehensiveness and level of detail provided are not publicly available.
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7.
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portions thereof:
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The following documents consist of the Expert Report of Terry L. Musika or
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to Samsung’s Daubert Motion
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Exhibit A to the Declaration of Terry Musika in Support of Apple’s Opposition
Exhibit 3 to the Declaration of Joby Martin in Support of Samsung’s Daubert
Motion
Exhibit Q to the Declaration of Mia Mazza in Support of Apple’s Opposition
to Samsung’s Daubert Motion
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DECLARATION OF ERICA TIERNEY IN SUPPORT OF APPLE’S RENEWED MOTION TO SEAL
CASE NO. 11-CV-01846-LHK
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This report and exhibits contain highly sensitive financial data, capacity data, and third-party
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consumer research as described in more detail above and in the Declaration of Nathan B. Sabri in
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Support of Renewed Motion to Seal (“Sabri Declaration”) filed herewith. Proposed redacted
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versions are attached in highlighted form as Exhibits 1, 2, and 3, respectively
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The following exhibits consist of the Supplemental Expert Report of Terry Musika
or portions thereof:
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Exhibit B to the Declaration of Terry Musika in Support of Apple’s Opposition
to Samsung’s Daubert Motion
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Exhibit 1 to the Declaration of Joby Martin in Support of Samsung’s Daubert
Motion
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Exhibit C to the Declaration of Terry Musika in Support of Apple’s Opposition
to Samsung’s Motion for Summary Judgment
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Exhibit E to the Declaration of Terry Musika in Support of Apple’s Opposition
to Samsung’s Motion for Summary Judgment
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Exhibit K to the Declaration of Terry Musika in Support of Apple’s Opposition
to Samsung’s Daubert Motion
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Exhibit Y to the Declaration of Terry Musika in Support of Apple’s Opposition
to Samsung’s Daubert Motion
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Exhibit 10 to the Declaration of Joby Martin in Support of Samsung’s Daubert
Motion
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Exhibit Z to the Declaration of Terry Musika in Support of Apple’s Opposition
to Samsung’s Daubert Motion
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This report and exhibits also contain highly sensitive financial data, capacity data, and third-party
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consumer research as described in more detail above and in the Sabri Declaration. Proposed
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redacted versions are attached in highlighted form as Exhibits 4 through 11, respectively.
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9.
Samsung’s Reply in Support of Motion to Strike and the Declaration of Michael
Wagner in Support thereof include specific terms of licenses, settlements, and acquisitions, as
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DECLARATION OF ERICA TIERNEY IN SUPPORT OF APPLE’S RENEWED MOTION TO SEAL
CASE NO. 11-CV-01846-LHK
sf-3174344
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discussed above. A proposed redacted version of this reply and supporting declaration is attached
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in highlighted form as Exhibit 12.
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10.
Exhibit B to the Declaration of Michael Wagner in Support of Samsung’s Reply in
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Support of Motion to Strike consists of the Corrected Expert Report of Michael J. Wagner (Vol.
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1). This report contains product profit margin information and specific details of an acquisition.
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A proposed redacted version of this exhibit is attached in highlighted form as Exhibit 13.
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Apple’s Opposition to Samsung’s Daubert Motion and the Declaration of Terry
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Musika in Support thereof include product profit margin information. A proposed redacted
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version of this opposition and supporting declaration is attached in highlighted form as Exhibit
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14.
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Exhibit AA to the Declaration of Terry Musika in Support of Apple’s Opposition
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to Samsung’s Daubert Motion includes product profit margin information. A proposed redacted
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version of this exhibit is attached in highlighted form as Exhibit 15.
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Exhibits 20 and 21 to the Declaration of Christopher Price in Support of
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Samsung’s Reply in Support of Samsung’s Motion to Strike consist entirely of documents
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showing Apple’s capacity from late 2010 through early 2012. They should be sealed in their
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entirety for the reasons described above.
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Exhibit G to the Declaration of Michael Maharbiz in Support of Apple’s
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Opposition to Samsung’s Motion for Summary Judgment consists of over 200 pages of electrical
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schematics relating to Apple’s products, including iPhone. It includes touchscreen schematics,
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system block diagrams, and audio schematics, among other things. It should be sealed in its
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entirety.
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15.
Exhibit P1 to the Declaration of David Hecht in Support of Samsung’s Opposition
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to Apple’s Motion for Partial Summary Judgment is an excerpt from the deposition of Boris
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Teksler. It contains confidential information related to Apple’s license agreements with third
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parties. It should redacted for the reasons described above. A proposed redacted version of this
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exhibit is attached in highlighted form as Exhibit 16.
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DECLARATION OF ERICA TIERNEY IN SUPPORT OF APPLE’S RENEWED MOTION TO SEAL
CASE NO. 11-CV-01846-LHK
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16.
Exhibit 32 to the Martin Declaration in Support of Samsung’s Daubert Motion is
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the Expert Report of Richard L. Donaldson, Esq. Pages 23-29 contain highly sensitive and
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confidential Apple and third party information about Apple’s current and past licenses and should
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be redacted for the reasons described above. Footnote 18 contains highly sensitive and
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confidential Apple and third party information about the cost of certain components in Apple’s
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products and should redacted for the reasons described above. A proposed redacted version of
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this exhibit is attached in highlighted form as Exhibit 17.
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17.
Exhibit 67 to the Declaration of Brett Arnold in Support of Samsung’s Motion for
Summary Judgment is Apple Inc.’s Objections and Responses to Samsung’s Fourth Set of
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Interrogatories. It contains highly sensitive and confidential Apple and third party information
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about Apple’s current and past licenses and should redacted for the reasons described above. A
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proposed redacted version of this exhibit is attached in highlighted form as Exhibit 18.
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Exhibit A to the Declaration of Janusz A. Ordover in Support of Apple’s
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Opposition to Samsung’s Motion for Summary Judgment is the Expert Report of Dr. Janusz A.
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Ordover. Footnote 161 contains confidential information regarding Apple’s licenses and should
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be redacted for the reasons described above. A proposed redacted version of this exhibit is
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attached in highlighted form as Exhibit 19.
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Exhibit C to the Declaration of Michael Wagner in Support of Samsung’s Reply in
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Support of Motion to Strike is a true and correct copy of a summary of Apple’s Licenses and
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Agreements. It contains highly sensitive and confidential Apple and third party information
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about Apple’s current and past licenses and should redacted for the reasons described above. A
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proposed redacted version of this exhibit is attached in highlighted form as Exhibit 20.
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20.
Exhibits 1-6 and 13 to the Declaration of Christopher Price in Support of
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Samsung’s Reply in Support of Samsung’s Motion to Strike are license agreements and licensing-
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related documents between Apple and third parties and should be sealed in their entirety for the
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reasons described above.
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21.
I reviewed versions of the exhibits above that were redacted of Samsung
confidential information. However, the attached exhibits highlight only the confidential
DECLARATION OF ERICA TIERNEY IN SUPPORT OF APPLE’S RENEWED MOTION TO SEAL
CASE NO. 11-CV-01846-LHK
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information to which my declaration pertains. I understand that Samsung will file a supporting
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declaration to the extent it wishes to maintain a claim of confidentiality on these and other
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documents.
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I declare under penalty of perjury that the foregoing is true and correct. Executed this
24th day of July, 2012 at Cupertino, California.
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/s/ Erica Tierney
Erica Tierney
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DECLARATION OF ERICA TIERNEY IN SUPPORT OF APPLE’S RENEWED MOTION TO SEAL
CASE NO. 11-CV-01846-LHK
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ATTESTATION OF E-FDILED SIGNATURE
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I, Jason R. Bartlett, 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 Erica Tierney has
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concurred in this filing.
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Dated: July 24, 2012
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/s/ Jason R. Bartlett
Jason R. Bartlett
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DECLARATION OF ERICA TIERNEY IN SUPPORT OF APPLE’S RENEWED MOTION TO SEAL
CASE NO. 11-CV-01846-LHK
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