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).

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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 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 617-542-0039 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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