Apple Inc. v. Samsung Electronics Co. Ltd. et al
Filing
1362
Unredacted Exhibits to Musika Declaration in Support of Apple's Opposition to Samsung's Daubert Motion re 1256 Order on Administrative Motion to File Under Seal, (Dkt. No. 991) by Apple Inc.. (Attachments: # 1 Exhibit D, # 2 Exhibit E, # 3 Exhibit F, # 4 Exhibit G, # 5 Exhibit H, # 6 Exhibit I, # 7 Exhibit J, # 8 Exhibit L, # 9 Exhibit M, # 10 Exhibit N, # 11 Exhibit O, # 12 Exhibit P, # 13 Exhibit Q, # 14 Exhibit R, # 15 Exhibit V, # 16 Exhibit W, # 17 Exhibit X)(Jacobs, Michael) (Filed on 7/26/2012) Modified text on 7/27/2012 (dhm, COURT STAFF).
Exhibit D
(Submitted Under Seal)
In The Matter Of:
APPLE INC.
v.
SAMSUNG ELECTRONICS CO.,
___________________________________________________
TODD PENDLETON - Vol. 1
March 21, 2012
___________________________________________________
HIGHLY CONFIDENTIAL
ATTORNEY'S EYES ONLY
HIGHLY CONFIDENTIAL - ATTORNEY'S EYES ONLY
TODD PENDLETON - 3/21/2012
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
--oOo-APPLE INC. a California
corporation,
)
)
)
Plaintiff,
)
)
vs.
) 11-cv-01846-LHK
)
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.
)
________________________________)
HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
DEPOSITION OF
TODD PENDLETON
_____________________________
MARCH 21, 2012
VOLUME I
(Pages 1 - 217)
REPORTED BY:
617-542-0039
SARAH LUCIA BRANN, CSR 3887
Merrill Corporation - Boston
www.merrillcorp.com/law
b00a524a-8f31-45b4-84ce-4c5e17018117
HIGHLY CONFIDENTIAL - ATTORNEY'S EYES ONLY
TODD PENDLETON - 3/21/2012
Page 7
1
MS. CARUSO:
Margret Caruso, Quinn,
2
Emanuel, Urquhart & Sullivan, representing Samsung.
3
And with me is Cindi Moreland of STA.
4
THE VIDEOGRAPHER:
Your court reporter
5
today is Sarah Brann of Merrill.
6
please swear in the witness?
Would the reporter
7
TODD PENDLETON
8
__________________________________
9
10
called as a witness, who, having been first duly
sworn, was examined and testified as follows:
11
THE VIDEOGRAPHER:
12
EXAMINATION BY MR. PLUNKETT
13
14
15
16
Please begin.
MR. PLUNKETT:
Q.
Good morning.
Could
you state and spell your name for the record?
A.
It's Todd Pendleton, T-o-d-d, last name
Pendleton, P-e-n-d-l-e-t-o-n.
17
Q.
What's your home address?
18
A.
6546 Sondra Drive, Dallas, Texas 75214.
19
Q.
Is this your first deposition?
20
A.
Yes, it is.
21
Q.
So let's go over some basics of the
22
deposition.
23
oath today?
Do you understand that you are under
24
A.
I do.
25
Q.
Do you understand that that's the same
617-542-0039
Merrill Corporation - Boston
www.merrillcorp.com/law
b00a524a-8f31-45b4-84ce-4c5e17018117
HIGHLY CONFIDENTIAL - ATTORNEY'S EYES ONLY
TODD PENDLETON - 3/21/2012
Page 8
1
oath as if you were testifying in a court?
2
A.
Yes.
3
Q.
If you don't understand my questions, you
4
can ask me to rephrase.
Okay?
5
A.
Okay.
6
Q.
Do you understand that if you answer my
7
question it will indicate that you understood the
8
question?
9
10
A.
Yes.
Q.
You will have an opportunity to review
11
your transcript to make any corrections, but I want
12
to make sure you understand that if you correct your
13
transcript we will have the opportunity to comment
14
about your corrections in court.
15
that?
Do you understand
16
A.
Yes.
17
Q.
Is there anything preventing you from
18
giving complete and accurate testimony today?
19
A.
No.
20
Q.
What's your current position with Samsung?
21
A.
Chief marketing officer of wireless
22
terminals.
23
Q.
And who is your employer?
24
A.
Samsung.
25
Q.
Do you work for Samsung Telecommunications
617-542-0039
Merrill Corporation - Boston
www.merrillcorp.com/law
b00a524a-8f31-45b4-84ce-4c5e17018117
HIGHLY CONFIDENTIAL - ATTORNEY'S EYES ONLY
TODD PENDLETON - 3/21/2012
Page 64
1
just go out on a limb here.
2
Pendleton 1.
3
whatever.
4
Okay.
5
Number 1.
Because I am not going to --
If I get in trouble, I get in trouble.
Let's mark this as, please, Pendleton Exhibit
6
7
Okay?
I am just going to do
I can't slide, because we have got a chasm
here.
8
(Deposition Exhibit 1
9
was marked for identification.)
10
MR. HEYISON:
Q.
Okay, Mr. Pendleton.
So
11
this is Apple's ninth Rule 30(b)(6) deposition
12
notice.
13
A.
Okay.
14
Q.
I'd like to direct your attention to page
15
eight.
16
A.
Okay.
17
Q.
Do you understand that you have been
18
designated to testify concerning topic number four,
19
for each of the covered products, Samsung's
20
marketing plans, and strategies, and marketing, and
21
sales messaging during the period from 2006 through
22
the present?
23
A.
Yes.
24
Q.
Do you also understand you have been
25
designated to testify concerning topic number five,
617-542-0039
Merrill Corporation - Boston
www.merrillcorp.com/law
b00a524a-8f31-45b4-84ce-4c5e17018117
HIGHLY CONFIDENTIAL - ATTORNEY'S EYES ONLY
TODD PENDLETON - 3/21/2012
Page 65
1
which is, "For each of the Covered Products,
2
Samsung's marketing plans, strategies, marketing,
3
sales messaging and advertising for use against each
4
Competitive Product and Apple Accused Product during
5
the period 2006 through the present"?
6
A.
Yes.
7
Q.
Okay.
8
And then let's turn to topic number
38, which you will find on page 14.
9
Do you understand that you have been
10
designated to testify concerning Samsung's
11
promotional or marketing programs and materials for
12
any of the covered products, including but not
13
limited to programs and materials that describe the
14
advantages or benefits of such products over other
15
products in any studies, reports, and analyses
16
concerning such programs and materials --
17
Let me finish, and then you can object.
18
MS. CARUSO:
Sure.
19
MR. HEYISON:
Q.
20
-- during the period
2006 through the present?
21
MS. CARUSO:
And my objection is based on
22
the fact that Mr. Pendleton is not designated to
23
talk about studies and reports about studies
24
concerning an analysis concerning the programs and
25
materials during the period 2006 through the
617-542-0039
Merrill Corporation - Boston
www.merrillcorp.com/law
b00a524a-8f31-45b4-84ce-4c5e17018117
HIGHLY CONFIDENTIAL - ATTORNEY'S EYES ONLY
TODD PENDLETON - 3/21/2012
Page 66
1
present.
2
MR. HEYISON:
Q.
Okay.
So,
3
Mr. Pendleton, do you understand what your
4
attorney's, I will call it a de-designation, is?
5
A.
Yes.
6
Q.
Okay.
So for the first part of that,
7
which is Samsung's promotional or marketing programs
8
and materials for any of the covered products,
9
including but not limited to programs and materials
10
that describe the advantages or benefits of such
11
products over other products, you understand you are
12
designated to testify about that topic?
13
A.
Correct.
14
Q.
Okay.
15
Good.
So, now, in each one of those topics we
16
have just talked about there is a term called
17
covered products.
18
A.
Mm-hmm.
19
Q.
Okay?
20
A.
Yes.
21
Q.
Okay.
Did you notice that before today?
So if you look on page six of that
22
notice, topic number six, there's a definition of
23
covered products.
So please turn to that for me.
24
A.
Okay.
25
Q.
And it's defined as "any product sold or
617-542-0039
Merrill Corporation - Boston
www.merrillcorp.com/law
b00a524a-8f31-45b4-84ce-4c5e17018117
HIGHLY CONFIDENTIAL - ATTORNEY'S EYES ONLY
TODD PENDLETON - 3/21/2012
Page 115
1
increase its market -- smartphone market share?
2
MS. CARUSO:
3
THE WITNESS:
Objection.
Beyond the scope.
Overall market share again
4
remained flat.
5
others that carried the product.
6
MR. HEYISON:
7
8
A.
And with respect to
No.
MS. CARUSO:
10
MR. HEYISON:
Objection.
Q.
Did anybody's sales
decrease?
12
13
Q.
those carriers, did Apple's sales decrease?
9
11
In some carriers we did better than
MS. CARUSO:
Objection.
Vague.
Beyond
the scope.
14
THE WITNESS:
15
as well as it used to.
16
haven't done as well in that time frame, in the
17
fourth quarter, as they have in the past.
18
MR. HEYISON:
Obviously RIM is not doing
HTC and Motorola also
Q.
In the smartphone market
19
are there sub segments of that market, like premium,
20
regular?
21
A.
There are price point differentials, yes.
22
Q.
Okay.
23
Can you tell me what those are in
the smartphone market?
24
MS. CARUSO:
25
THE WITNESS:
617-542-0039
Objection.
Beyond the scope.
The, again, majority of
Merrill Corporation - Boston
www.merrillcorp.com/law
b00a524a-8f31-45b4-84ce-4c5e17018117
HIGHLY CONFIDENTIAL - ATTORNEY'S EYES ONLY
TODD PENDLETON - 3/21/2012
Page 116
1
the -- call them super phone, whatever you want to
2
call them -- could be $199 and above.
3
have 199 down to 99 as your mid tier, and $99 and
4
below as more of your entry level, if you want to
5
call it that.
6
7
MR. HEYISON:
Q.
You could
And does Samsung have
product offerings in each of those three categories?
8
A.
Yes.
9
Q.
And does Apple -- where does Apple have
10
product offerings with respect to those?
11
MS. CARUSO:
Objection.
12
THE WITNESS:
Similar.
13
MR. HEYISON:
Q.
Beyond the scope.
Pardon?
14
A.
It would be similar.
15
Q.
So, do Samsung and Apple compete in all
16
three categories?
17
18
MS. CARUSO:
Objection.
Beyond the scope.
Vague.
19
THE WITNESS:
Yes.
20
MR. HEYISON:
Q.
21
And the Galaxy S is $199
and above?
22
MS. CARUSO:
23
THE WITNESS:
Yes.
24
MR. HEYISON:
Q.
25
Objection.
Beyond the scope.
And the Apple iPhone 4S
is in that category, too?
617-542-0039
Merrill Corporation - Boston
www.merrillcorp.com/law
b00a524a-8f31-45b4-84ce-4c5e17018117
HIGHLY CONFIDENTIAL - ATTORNEY'S EYES ONLY
TODD PENDLETON - 3/21/2012
Page 117
1
A.
Yes.
2
Q.
Are you aware of any period of time in
3
which Samsung's market share of the smartphone
4
market has gone up and Apple's has gone down?
5
MS. CARUSO:
6
THE WITNESS:
No.
7
MR. HEYISON:
Q.
8
Objection.
Beyond the scope.
Do you know what Prime
Competitrack is?
9
A.
No.
10
MS. CARUSO:
11
MR. HEYISON:
Objection.
Q.
Beyond the scope.
Does Samsung use Twitter
12
in any way to promote its smartphone or tablet
13
products?
14
15
A.
for our smartphones, yes.
16
17
18
Q.
is?
Okay.
Can you describe to me what that
I don't even know what you mean by handle.
A.
19
20
We have a Samsung mobile Twitter handle
So we have a Twitter account.
MS. CARUSO:
This might call for a
narrative.
21
THE WITNESS:
Yes.
So we have a Twitter
22
account, a Samsung mobile Twitter account, and it's
23
daily communications.
24
want to connect with us, they can send us a note,
25
and there is a person that can answer questions
617-542-0039
If people have questions or
Merrill Corporation - Boston
www.merrillcorp.com/law
b00a524a-8f31-45b4-84ce-4c5e17018117
HIGHLY CONFIDENTIAL - ATTORNEY'S EYES ONLY
TODD PENDLETON - 3/21/2012
Page 217
1
2
I declare under penalty of perjury the
3
foregoing is true and correct.
4
_________________________, California, this ____ day
5
of ____________, 2012.
6
7
Subscribed at
________________________________
Todd Pendleton
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617-542-0039
Merrill Corporation - Boston
www.merrillcorp.com/law
b00a524a-8f31-45b4-84ce-4c5e17018117
HIGHLY CONFIDENTIAL - ATTORNEY'S EYES ONLY
TODD PENDLETON - 3/21/2012
Page 218
1
CERTIFICATE OF REPORTER
2
I, SARAH LUCIA BRANN, a Certified
3
Shorthand Reporter, hereby certify that the witness
4
in the foregoing deposition was by me duly sworn to
5
tell the truth, the whole truth, and nothing but the
6
truth in the within-entitled cause;
7
That said deposition was taken in
8
shorthand by me, a disinterested person, at the time
9
and place therein stated, and that the testimony of
10
the said witness was thereafter reduced to
11
typewriting, by computer, under my direction and
12
supervision;
13
That before completion of the deposition,
14
review of the transcript [ ] was [X] was not
15
requested.
16
deponent (and provided to the reporter) during the
17
period allowed are appended hereto.
18
If requested, any changes made by the
I further certify that I am not of counsel
19
or attorney for either or any of the parties to the
20
said deposition, nor in any way interested in the
21
event of this cause, and that I am not related to
22
any of the parties thereto.
23
DATED:
March 27, 2012
24
_________________________________
25
SARAH LUCIA BRANN, CSR No. 3887
617-542-0039
Merrill Corporation - Boston
www.merrillcorp.com/law
b00a524a-8f31-45b4-84ce-4c5e17018117
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