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

Filing 1388

MOTION Adverse Inference Jury Instruction filed by Samsung Electronics America, Inc.. Responses due by 8/9/2012. Replies due by 8/16/2012. (Attachments: # 1 Declaration, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Proposed Order)(Maroulis, Victoria) (Filed on 7/26/2012)

1 QUINN EMANUEL URQUHART & SULLIVAN, LLP
Charles K. Verhoeven (Cal. Bar No. 170151)
2 [e-mail]
50 California Street, 22nd Floor
3 San Francisco, California 94111
Telephone: [phone]
4 Facsimile: [phone]
5 Kevin P.B. Johnson (Cal. Bar No. 177129)
[e-mail]
6 Victoria F. Maroulis (Cal. Bar No. 202603)
[e-mail]
th
7 555 Twin Dolphin Drive 5 Floor
Redwood Shores, California 94065
8 Telephone: [phone]
Facsimile: [phone]
9
Michael T. Zeller (Cal. Bar No. 196417)
10 [e-mail]
865 S. Figueroa St., 10th Floor
11 Los Angeles, California 90017
Telephone: [phone]
12 Facsimile: [phone]
13 Attorneys for SAMSUNG ELECTRONICS
CO., LTD., SAMSUNG ELECTRONICS
14 AMERICA, INC. and SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC
15
16

UNITED STATES DISTRICT COURT

17

NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION

18 APPLE INC., a California corporation,
Plaintiff,

19
20

CASE NO. 11-cv-01846-LHK

vs.

21 SAMSUNG ELECTRONICS CO., LTD., a
Korean business entity; SAMSUNG
22 ELECTRONICS AMERICA, INC., a New
York corporation; SAMSUNG
23 TELECOMMUNICATIONS AMERICA,
LLC, a Delaware limited liability company,
24
Defendants.
25

DECLARATION OF ALEX BINDER IN
SUPPORT OF SAMSUNG’S MOTION
FOR ADVERSE INFERENCE JURY
INSTRUCTION

26
27
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02198.51845/4875828.2

Case No. 11-cv-01846-LHK
DECLARATION OF ALEX BINDER IN SUPPORT OF SAMSUNG’S MOTION FOR ADVERSE
INFERENCE JURY INSTRUCTION

1

I, Alex Binder, declare:

2

1.

I make this declaration in Support of Samsung Electronics Co., Ltd., Samsung

3 Electronics America, Inc., and Samsung Telecommunications America, LLC (collectively
4 “Samsung’s”) Motion for Adverse Inference Jury Instruction.
5

2.

I am an attorney in the law firm of Quinn Emanuel Urquhart & Sullivan, LLP,

6 counsel for Samsung. I have personal knowledge of the facts set forth in this declaration and, if
7 called upon as a witness, I could and would testify to such facts under oath.
8

3.

Under my supervision, contract attorneys for Quinn Emanuel and document

9 production vendors engaged by Quinn Emanuel assisted in gathering the information provided in
10 Paragraphs 5-15 of this Declaration.
11

4.

The numbers provided in Paragraphs 5-15 of this Declaration regarding Samsung's

12 productions include documents served by the parties in this action, as well as in the following
13 actions: In the Matter of Certain Electronic Devices, Including Wireless Communication Devices,
14 Portable Music and Data Processing Devices, and Tablet Computers, USITC Inv. No. 337-TA15 794 and Apple Inc. v. Samsung Electronics Co., LTD., et al., and In the Matter of Certain
16 Electronic Digital Media Devices and Components Thereof, USITC Inv. No. 337-TA-796.
17

5.

Attached hereto as Exhibit 1 is a true and correct copy of Apple Inc.'s

18 Supplemental Identification of Custodians, Search Terms, and Document Retention Notices
19 ("Apple's Defensive Transparency Disclosures"), and Exhibit FF thereto. Pursuant to the Court's
20 Order Granting-in-Part Apple's Motion for an Adverse Inference Jury Instruction ("Order") (Dkt.
21 No. 895) at page 2, footnote 4, this exhibit previously submitted under seal was unsealed on
22 7/25/12.
23

6.

Attached hereto as Exhibit 2 is a true and correct copy of Apple Inc. Amended

24 Document Retention Notice Distribution. ("Apple's Offensive Transparency Disclosures").
25 Pursuant to the Court's Order at page 2, footnote 4, this exhibit previously submitted under seal
26 was unsealed on 7/25/12.
27
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Case No. 11-cv-01846-LHK
-1DECLARATION OF ALEX BINDER IN SUPPORT OF SAMSUNG’S OPPOSITION TO APPLE’S
MOTION ADVERSE INFERENCE JURY INSTRUCTION

1

7.

Apple issued litigation hold notices no earlier than April 29, 2011. Apple issued or

2 sent a total of 957 litigation hold notices. Apple issued or sent 264 litigation hold notices, or
3 roughly 28% of the total Apple litigation hold notices, on or after January 1, 2012.
4

8.

Four Apple design-related witnesses (Chris Harris, Chris Hood, Mark Lee, and

5 Chris Prest) do not appear in Apple's Defensive Transparency Disclosures as having been sent
6 defensive litigation hold notices. They appear in Apple's Offensive Transparency Disclosures as
7 having been issued offensive litigation hold notices on January 11, 2012.
8

9.

Brian Huppi does not appear in Apple's Defensive Transparency Disclosures, and

9 appears in Apple's Offensive Transparency Disclosures as having been issued an offensive
10 litigation hold notice on February 23, 2012.
11

10.

Steve Jobs does not appear in either Apple's Defensive Transparency Disclosures or

12 Apple's Offensive Transparency Disclosures as having been issued or sent an offensive or
13 defensive litigation hold notice.
14

11.

Attached hereto as Exhibit 3 is a true and correct copy of Apple Inc.'s First

15 Amended and Supplemental Initial Disclosures Pursuant to Rule 26(a)(1) ("Apple's Initial
16 Disclosures").

Pursuant to the Court's Order at page 2, footnote 4, this exhibit previously

17 submitted under seal was unsealed on 7/25/12.
18

12.

The following chart summarizes the dates certain offensive or defensive litigation

19 hold notices were issued or sent to certain individuals named in Apple's Initial Disclosures.
20

Witness

Potential area(s) of
knowledge (at least)

Offensive Litigation
Hold Notice Issued

21
22

Suzanne
Lindbergh

Appearance of Apple
products in popular
media

1/11/12

none

John Brown

The mobile phone,
tablet and media
player markets

9/27/11

none

Phil Schiller

Apple's iPhone and
iPad business

9/27/11

none

Tony Blevins

Supply chain for
baseband chips

none

2/8/12

23
24
25
26
27
28

Defensive
Litigation Hold
Notice Sent

Case No. 11-cv-01846-LHK
-2DECLARATION OF ALEX BINDER IN SUPPORT OF SAMSUNG’S OPPOSITION TO APPLE’S
MOTION ADVERSE INFERENCE JURY INSTRUCTION

1

incorporated into
accused Apple
products; identity of
baseband chips
incorporated into
accused Apple
products

2
3
4
5

Saku Hieta

Supply chain for
baseband chips
incorporated into
accused Apple
products; identity of
baseband chips
incorporated into
accused Apple
products

None

1/30/12

Justin Santamaria

Design and operation
of accused
functionality in
accused Apple
products

9/27/11

8/31/11,
1/30/12

6
7
8
9
10
11
12
13
14

13.

The following chart summarizes the number of emails Apple produced from the

15 custodial files of certain Apple employees relevant to this litigation:
16

Custodian

Relevance

17

No. of Emails in
Custodial
Production
14

No. of Documents
in Custodial
Production
135

Bartley Andre

named inventor of D270,
D899, D087,and D677
patents

BJ Watrous

head patent counsel

0

11

Brian Huppi

named inventor of '607

0

104

Chris Harris

model builder

0

0

Chris Stringer

named inventor of D677,
D270, and D889 patents

15

38

24

Curt Rothert

software engineer

30

30

25

Duncan Kerr

named inventor of D087,
D677, D270, and patents
D899

41

130

Eugene Whang

named inventor of D087,
D677, D270, and D899

36

146

18
19
20
21
22
23

26
27
28

Case No. 11-cv-01846-LHK
-3DECLARATION OF ALEX BINDER IN SUPPORT OF SAMSUNG’S OPPOSITION TO APPLE’S
MOTION ADVERSE INFERENCE JURY INSTRUCTION

1

Custodian

Relevance

2

No. of Emails in
Custodial
Production

No. of Documents
in Custodial
Production

patents
3
4
5

Evans Hankey

designer

0

21

Jonathan Ive

named inventor of D087,
D677, D270, and D899
patents

45

173

Mark Buckley

finance analyst

0

100

Mark Lee

manager, model shop

8

10

Matthew Rohrbach

named inventor of D087,
D677, D270, and D889
patents

32

385

Peter Russell-Clarke

named inventor of D270
patent

56

190

Quinn Hoellwarth

Apple in-house attorney,
prosecutor of '949, and
'757 patents

0

0

Rico Zorkendorfer

named inventor of D087,
D677, D270, and D889
patents

15

62

Shin Nishibori

named inventor of D889,
D087, D677, D270, and
D899 patents.

18

94

Stephen Lemay

named inventor of '163
patent

43

59

Steve Jobs

named inventor of '949,
'678, D087, D677, D270,
D889, D757, and D678
patents; former CEO

51

54

Wei Chen

technical director

12

37

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

14.

The following chart summarizes the number of custodial emails produced for

certain Apple custodians dated after August 1, 2010 and before April 1, 2011. Of the 66 emails
listed below dated between August 1, 2010 and April 1, 2011, more than 20 are various
permutations of email chains, containing significant duplication.

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Case No. 11-cv-01846-LHK
-4DECLARATION OF ALEX BINDER IN SUPPORT OF SAMSUNG’S OPPOSITION TO APPLE’S
MOTION ADVERSE INFERENCE JURY INSTRUCTION

1

Name

2

Bartley Andre
Brian Huppi
Chris Harris
Chris Stringer
Curt Rothert
Duncan Kerr
Eugene Whang
Evans Hankey
Jon Ive
Mark Buckley
Mark Lee
Matthew Rohrbach
Peter Russell
Clarke
Quinn Hoellwarth
Rico Zorkendorfer
Shin Nishibori
Stephen Lemay
Steve Jobs
Wei Chen

3
4
5
6
7
8
9
10
11
12

Emails dated
8/1/10-3/31/11
1
0
0
4
3
7
7
0
5
0
3
16
2

Non-Email Documents
dated 8/1/2010-3/31/2011
1
0
0
2
0
12
6
0
9
0
0
25
1

0
3
0
0
3
12

0
3
0
0
0
7

13
14

15.

The following chart summarizes the number of non-custodial emails produced for

15 certain Apple custodians, compared to the number of custodial emails produced for each:
16
17

Witness
Chris Stringer

18
19

Douglas Satzger

20
Eugene Whang
21
22

Jonathan Ive

23
24

Matthew Rohrbach

25
26
27
28

Scott Forstall
Shin Nishibori

Relevance
named inventor of
D677, D270, and
D889 patents
Former industrial
design creative lead
and design manager
named inventor of
D087, D677, D270,
and D899 patents
named inventor of
D087, D677, D270,
and D899 patents
named inventor of
D087, D677, D270,
and D889 patents
Named inventor of
‘163 patent
named inventor of
D889, D087, D677,
D270, and D899

Non-Custodial Emails

Custodial Emails

475

15

133

0

144

36

759

45

112

31

1,676

172

43

18

Case No. 11-cv-01846-LHK
-5DECLARATION OF ALEX BINDER IN SUPPORT OF SAMSUNG’S OPPOSITION TO APPLE’S
MOTION ADVERSE INFERENCE JURY INSTRUCTION

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2
3

Stephen Lemay
Steve Jobs

4
5
6
7
8

16.

patents
named inventor of
'163 patent
named inventor of
'949, '678, D087,
D677, D270, D889,
D757, and D678
patents; former
CEO

2,028

40

2,042

51

Pursuant to the Court's Order at page 2, footnote 4, portions of this declaration

previously submitted under seal were unsealed on 7/25/12.

9
10
11

I declare under penalty of perjury that the foregoing is true and correct.

Executed in San

Francisco, California on July 26, 2012.

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15

By /s/ Alex Binder
Alex Binder

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Case No. 11-cv-01846-LHK
-6DECLARATION OF ALEX BINDER IN SUPPORT OF SAMSUNG’S OPPOSITION TO APPLE’S
MOTION ADVERSE INFERENCE JURY INSTRUCTION

1
2

GENERAL ORDER ATTESTATION
I, Victoria F. Maroulis, am the ECF user whose ID and password are being used to file the

3 foregoing DECLARATION OF ALEX BINDER IN SUPPORT OF SAMSUNG'S INC.'S
4 MOTION FOR ADVERSE INFERENCE JURY INSTRUCTION.

In compliance with

5 General Order 45, X.B., I hereby attest that Alex Binder has concurred in this filing.
6
7

DATE: July 26, 2012

/s/ Victoria Maroulis

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Case No. 11-cv-01846-LHK
-7DECLARATION OF ALEX BINDER IN SUPPORT OF SAMSUNG’S OPPOSITION TO APPLE’S
MOTION ADVERSE INFERENCE JURY INSTRUCTION