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

Filing 1360

Unredacted Declaration of Bill Trac in Support of Samsung's Reply in Support of Motion for Summary Judgment by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC(a Delaware limited liability company) re 1256 Order on Administrative Motion to File Under Seal, re (Dkt. Nos. 1068, 1069) (Attachments: # 1 Exhibit 1 to the Trac Declaration, # 2 Exhibit 2 to the Trac Declaration, # 3 Exhibit 8 to the Trac Declaration, # 4 Exhibit 9 to the Trac Declaration, # 5 Exhibit 10 to the Trac Declaration, # 6 Exhibit 14 to the Trac Declaration, # 7 Exhibit 15 to the Trac Declaration, # 8 Exhibit 16 to the Trac Declaration, # 9 Exhibit 17 to the Trac Declaration, # 10 Exhibit 18 to the Trac Declaration, # 11 Exhibit 19 to the Trac Declaration, # 12 Exhibit 20 to the Trac Declaration, # 13 Exhibit 21 to the Trac Declaration, # 14 Exhibit 22 to the Trac Declaration, # 15 Exhibit 23 to the Trac Declaration, # 16 Exhibit 24 to the Trac Declaration, # 17 Exhibit 25 to the Trac Declaration, # 18 Exhibit 26 to the Trac Declaration, # 19 Exhibit 27 to the Trac Declaration, # 20 Exhibit 28 to the Trac Declaration)(Maroulis, Victoria) (Filed on 7/26/2012) Modified text on 7/27/2012 (dhm, COURT STAFF).

quinn emanuel

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November 1, 2011

WRITER'S INTERNET ADDRESS
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VIA E-MAIL
Jason Bartlett
Morrison & Foerster LLP
425 Market St.
San Francisco, CA 94105-2482
Re:

Apple v. Samsung Electronics, et al., No. 5:11-cv-01846-LHK (N.D. Cal.)

Dear Jason:
As you are aware, we have noted repeatedly the deficient nature of Apple’s productions relating
to its design patent inventors. The depositions of Apple’s designers have only served to
highlight the extent of Apple’s production deficiencies.
Design Sketchbooks
As mentioned previously, Apple’s production of design sketchbooks has been, and continues to
be, disorganized and incomplete. For example, Peter Russell-Clarke testified in his deposition
that he expected there would be more than just 4 pages of sketches related to iPhone, iPod, and
iPad designs spanning at least five and a half years of product generations. (Oct. 20, 2011
Deposition of Peter Russell-Clarke, Tr. 61:6-62:5.) Mr. Russell-Clarke also testified that he
personally has dozens of large sketchbooks that span his entire time as a designer in his locker at
Apple’s facility. (Id. at 51:13-52:16.) Indeed, several of Apple’s designers have acknowledged
using one or more sketchbooks per year from the time that they started working at Apple.
(October 21, 2011 Deposition of Daniele de Iuliis, Tr. 16:7-12; October 24, 2011 Deposition of
Matthew Rohrbach, Tr. 36:17-38:16; October 27, 2011 Deposition of Daniel Coster, Tr. 53:757.) Yet, to this date, Apple has produced only a relatively small amount of incomplete portions
of these and other designers’ sketchbooks.

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Jason Bartlett
November 1, 2011
Page 2
Comments made during depositions of Apple’s designers add to Samsung's concerns about the
completeness of the produced sketchbook portions. For example, Richard Howarth testified that
he only searched for and turned over sketchbooks related to the iPhone, and that he did not look
for any tablet-related sketches. (October 31, 2011 Deposition of Richard Howarth, Tr. 36:1638:4.) Because tablet-related sketches are clearly relevant to the claims in this case, including
those related to the ‘889 design patent, Samsung has serious concerns regarding the adequacy of
Apple’s production of design sketchbooks.
Moreover, Apple has failed to provide custodian information or other identifying information for
most, if not all, of the design sketchbooks. This lack of identifying information has not only
forced Samsung to speculate as to which sketches belong to which designers, but, even worse,
has caused confusion and wasted valuable deposition time. As one example, Mr. Howarth
acknowledged that certain sketchbook portions bearing the name “Dicky” on the cover page
were his, but then denied that other sketches on pages that came right before and/or after pages
with the name "Dicky" written on it were his. (Howarth Deposition, Tr., 29-224; 225:2-228:1
(discussing certain documents between APLNDC0000036618 and APLNDC0000038155).)
Samsung therefore requests that Apple confirm that it will search for and produce all remaining
relevant sketchbook portions for the Apple designers, including those stored in their lockers at
Apple, and that Apple will provide identifying information for the sketchbooks it has gathered
and produced. Samsung also requests that Apple produce or make available for inspection and
copying the entire sketchbook or sketchbooks containing the documents bearing production
numbers APLNDC0000036618-38155 so that certain essential information, including the
identity of the owner of the sketchbook, the time period during which the sketches were created,
and other pages associated with the sketches on these pages can be ascertained.
“Phillips Receiver” Testing Reports
In his deposition, Mr. Howarth was questioned regarding a document (APLNDC0001205801)
that references “Phillips receiver design / testing” in connection with the “M68” project. Mr.
Howarth confirmed that this document appeared to relate to a “component from Phillips” that
Apple was using for testing in connection with the development of the first iPhone. (Howarth
Dep., Tr. 230:18-231:17.) Samsung requests that Apple produce all documents and reports
related to this testing or, if already produced, that Apple identify such documents by production
number.
1989 “Brain Box”
Finally, it has come to Samsung’s attention that Apple may have in its possession additional
potential prior art relating to the ‘889 design patent in the form of a product or protoype referred
to as the “Brain Box” – a flat panel display and keyboard designed in 1989 by Apple designers,
including Gavin Ivester, Tony Guido and Sigmar Wilnauer. Samsung requests that Apple
produce or make available for inspection all documents and things, including all models and

Jason Bartlett
November 1, 2011
Page 3
prototypes, related to the Brain Box. These materials are responsive to (at least) Samsung's
Request for Production No. 98.
In light of these and other production deficiencies, Samsung reserves the right to pursue motion
practice and to re-call all deponents impacted by Apple’s production failures for an additional
day of deposition.
Sincerely,
/s/ Michael T. Zeller
Michael T. Zeller