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

Filing 1460

RESPONSE to re 1454 Objection Samsung's Response to Apple's Objections to Cross Examination Exhibits of Christopher Stringer by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC(a Delaware limited liability company). (Maroulis, Victoria) (Filed on 7/30/2012)

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
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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION

18 APPLE INC., a California corporation,
Plaintiff,

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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

SAMSUNG’S RESPONSES TO APPLE’S
OBJECTIONS TO DESIGNATED CROSS
EXAMINATION EXHIBITS OF
CHRISTOPHER STRINGER

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Case No. 11-cv-01846-LHK
SAMSUNG’S RESPONSES TO APPLE’S OBJECTIONS TO STRINGER CROSS EXHIBITS

1

Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., and Samsung

2 Telecommunications America, LLC (collectively “Samsung”) respectfully submits the following
3 responses to the objections raised by Apple Inc. (“Apple”) with respect to the exhibits designated
4 for use during the cross-examination of Apple’s designer, Christopher Stringer.

Apple’s

5 objections should be denied because Apple provides no basis for excluding any of them.
6

Exhibit

Samsung’s Response

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DX504

Judge Grewal’s order cited by Apple (Dkt. 1144) granted
Apple’s motion to strike portions of Samsung’s expert reports
based on certain theories and/or prior art. Judge Grewal’s
order did not exclude DX504 in its entirety or its admission
into evidence through witnesses other than Samsung’s experts.
Moreover, Samsung is entitled to use this reference for
impeachment purposes in cross-examining Apple’s design
witnesses, including Mr. Stringer.
DX511 is admissible for several reasons beyond serving as a
primary reference in an invalidity analysis, including for
establishing the level of ordinary skill, rebutting allegations of
copying, and non-infringement. Moreover, Samsung is
entitled to use this reference for impeachment purposes in
cross-examining Apple’s design witnesses, including Mr.
Stringer. Accordingly, no limiting instruction is required, as
Apple argues.
Judge Grewal’s order (Dkt. 1144) did not strike – and Apple’s
proposed order did not mention – DX562, which is an internal
Apple e-mail regarding Sony’s influences on Apple design.
This exhibit is relevant to at least design patent functionality
and non-infringement, trade dress functionality, and alleged
copying. After having delayed production of emails and
witnesses relating to the influence of Sony designs during fact
discovery, Apple cannot now argue that Samsung’s theories
are untimely. This is particularly true in the context of cross
examination of witnesses, such as Mr. Stringer, who Apple
offers to testify regarding the origins of the iPhone design.
DX623 are CAD drawings reflecting Apple’s attempts to
emulate Sony designs. This exhibit is admissible for all of
the same reasons as DX562.
DX624 is an article regarding the influence of Braun designs
on Apple products. This exhibit is relevant to at least design
patent functionality and non-infringement, trade dress
functionality, and alleged copying. Contrary to Apple’s
arguments, DX624 was timely disclosed during expert
discovery and marked during expert depositions.
Accordingly, Apple has had ample notice and ability to

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DX511

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DX562

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DX623

DX624

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-1SAMSUNG’S RESPONSES TO APPLE’S OBJECTIONS TO STRINGER CROSS EXHIBITS

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DX628

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DX649

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DX678

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DX690

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DX691

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DX708

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DX740

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DX741

question Samsung’s expert witnesses on this exhibit, including
at the April 25, 2012 Deposition of Christopher Mount.
Samsung is entitled to use this reference for impeachment
purposes in cross-examining Apple’s design witnesses,
including Mr. Stringer.
DX628 is relevant to invalidity and non-infringement of
Apple’s asserted design patents and trade dress. This
document was timely produced and marked during expert
discovery, including at the April 27, 2012 Deposition of
Russell Winer. Samsung is entitled to use this reference for
impeachment purposes in cross-examining Apple’s design
witnesses, including Mr. Stringer.
DX649 is an article circulated among Apple designers
regarding Sony’s achievements in electronic design. This
exhibit is admissible for all of the same reasons as DX562.
Contrary to Apple’s argument, DX678 was not included in the
prior art references stricken by Judge Grewal’s Order. Nor
did Apple’s proposed order mention this reference. Apple’s
argument is merely an attempt to stretch the bounds of Judge
Grewal’s focused Order beyond all bounds to include virtually
any prior art reference. DX678 has not been excluded by any
Order. On the contrary, this exhibit was disclosed during the
early stages of discovery, and is relevant to invalidity, noninfringement and other issues.
DX690 is CAD drawings reflecting Apple’s attempts to
emulate Sony designs. This exhibit is admissible for all of
the same reasons as DX562.
DX691 is a video clip in which the head of Apple industrial
design, Jonathan Ive, discusses Apple’s design concepts for the
iPhone. It is relevant to non-infringement, invalidity,
functionality, and Apple’s design influences. Accordingly,
DX691 is likely to be highly relevant to Mr. Stringer’s
testimony as a member of Apple’s industrial design team.
DX708 is an Apple report describing the results of a tear-down
of a Samsung smartphone. This report is relevant to at least
copying and to impeach Mr. Stringer’s testimony regarding
Apple’s analysis of competitor products.
DX740 are photos of the 035 mockup that were prepared by
Apple and submitted as part of the D’889 prosecution history.
This exhibit is admissible for all of the same reasons as
DX740.
DX741 is the 035 mockup that Apple disclosed during
prosecution as an embodiment of the D’889 patent. This
mockup is relevant to at least invalidity and non-infringement.
Samsung has never been precluded from relying on the 035
mockup, as Apple contends. Instead, Apple’s previous
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-2SAMSUNG’S RESPONSES TO APPLE’S OBJECTIONS TO STRINGER CROSS EXHIBITS

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DX743

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JX1040

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APL-ITC796-00000360

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APL-ITC796-00000442

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Apple’s Responses to
Interrogatory Nos. 1
and 4
ITC 796 Witness
Statement of
Christopher Stringer
ITC Day 1 Hearing
Transcript

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ITC Exhibit RX-1894C

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ITC Depositions of
Christopher Stringer

attempt to exclude the 035 mockup and related evidence
through its Motion in Limine No. 1, has already been denied
by the Court. These exhibits are admissible and relevant to
the issues in this case, and are a proper subject for
impeachment during the cross-examination of Mr. Stringer.
DX743 is Apple’s U.S. Patent Application No. 29/382,846.
It is relevant to at least validity and non-infringement of the
D’889 patent. Samsung is entitled to use this reference for
impeachment purposes in cross-examining Apple’s design
witnesses, including Mr. Stringer.
JX1040 is the D’889 patent, an asserted patent in this case and
a joint exhibit. Apple’s objection to its use for purposes of
cross-examining Mr. Stringer, one of the ‘D’889 inventors, is
astounding. The D’889 patent is plainly relevant to Apple’s
claim of infringement and Samsung’s defenses, including
invalidity. Contrary to Apple’s argument, no limiting
instruction is required, or appropriate, regarding the
admissibility of one of the three design patents in suit.
This exhibit is Apple’s D’678 patent, which is one of the
asserted patents in the ITC-796 Investigation. This patent
should not be excluded under Apple’s Motion in Limine No. 2
because it is not being used to limit the scope of the asserted
patents in this action. Samsung is entitled to use this
reference for impeachment purposes in cross-examining
Apple’s design witnesses, including Mr. Stringer, regarding
the design of the various versions of the iPhone.
This exhibit is Apple’s D’757 patent, which is one of the
asserted patents in the ITC-796 Investigation. This patent
should not be excluded under Apple’s Motion in Limine No. 2
because the D’757 patent, was filed prior to the D’677 and
D’087 patents asserted in this case, not after. Therefore, the
Court’s ruling on Motion in Limine No. 2 does not apply.
Apple’s responses to these discovery requests are admissions
that are relevant may be used to impeach its design witnesses,
including Mr. Stringer, for the reasons in Section 1 below.
Mr. Stringer’s ITC witness statement is sworn testimony that is
relevant and may be used for impeachment purposes for all the
reasons discussed in Sections 1 and 2 below.
Mr. Stringer’s ITC hearing testimony is sworn testimony that
is relevant and may be used for impeachment purposes for all
the reasons discussed in Sections 1 and 2 below.
This exhibit is CAD drawings reflecting Apple’s attempts to
emulate Sony designs. This exhibit is admissible for all of
the same reasons as DX562.
Mr. Stringer’s ITC deposition testimony is sworn testimony
that is relevant and may be used for impeachment purposes for
all the reasons discussed in Sections 1 and 2 below.

Case No. 11-cv-01846-LHK
-3SAMSUNG’S RESPONSES TO APPLE’S OBJECTIONS TO STRINGER CROSS EXHIBITS

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Exhibit 34 to the
2/15/2012 ITC
Deposition of
Christopher Stringer

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5/2/2012 Deposition of
Shin Nishibori

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This exhibit to Mr. Stringer’s ITC deposition testimony
compares Apple designs to the prior art. It is relevant to at
least infringement and invalidity, and may be used for
impeachment purposes for all the reasons discussed in Sections
1 and 2 below.
The deposition testimony of Shin Nishibori, an unavailable
witness, is relevant and admissible as an exception to the
hearsay rule under Federal Rule of Evidence 804, as discussed
below in Section 1. It may also be used for impeachment of
Apple’s design witnesses, including Mr. Stringer.

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In addition to the exhibits listed in the chart above, Apple objects to two broader categories

9 of materials that are proper for use in cross examination.
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1.

Deposition Testimony and Discovery Responses in This Action

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Apple amazingly attempts to argue that properly designated discovery responses and

12 deposition testimony of Mr. Stringer and other witnesses in this action should be excluded due to
13 lack of foundation and as hearsay.

Apple’s objections in this respect must fail.

Apple’s

14 discovery responses in this action are party admissions that Samsung timely designated for trial.
15 It is well established under the Federal Rules of Civil Procedure that a deposition may be used by
16 any party for the purpose of impeaching the testimony of the deponent as a witness.
17 P. 32(a)(1).

This is true even though the testimony is not otherwise admissible.

18 Air Lines Transport Corp., 27 F. Supp. 946 (D.Conn. 1939).

Fed. R. Civ.

Lewis v. United

Apple’s discovery responses and

19 the deposition of Apple witnesses, including Mr. Stringer, in this action are relevant and
20 admissible including as impeachment evidence.

Moreover, the deposition testimony of Shin

21 Nishibori, an unavailable witness, is also properly admissible as an exception to the hearsay rule
22 under Federal Rule of Evidence 804.
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2.

Deposition and Hearing Testimony and Exhibits from the ITC-796 Investigation

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Apple claims that Samsung is not entitled to use admissions from Christopher Stringer’s

25 deposition, witness statement, or trial testimony or exhibits from the ITC 796 Investigation despite
26 the clear relevance of these materials.

Apple has already advanced the argument that it should

27 not be required to produce related deposition transcripts and court materials, and Judge Grewal has
28 rejected it on multiple occasions.

In fact, Apple was recently sanctioned for refusing to produce

Case No. 11-cv-01846-LHK
-4SAMSUNG’S RESPONSES TO APPLE’S OBJECTIONS TO STRINGER CROSS EXHIBITS

1 Apple employee depositions from related proceedings for use in this action.

Apple has no

2 legitimate basis for the exclusion of these documents, and simply wants to prevent material,
3 damaging admissions from coming to light.
4

Judge Grewal ordered Apple to produce all deposition transcripts with a “technological

5 nexus” to this case in the December 22, 2011 Order (Dkt. No. 536 at 5:10-19).

Apple continued

6 to withhold all deposition transcripts from the ITC 796 Investigation even though the D’678 and
7 D’757 patents asserted in that Investigation are virtually identical to the D’087 and D’677 patents.
8 These patents are purportedly embodied in the same versions of Apple’s iPhone, relate to the same
9 front surface of electronic devices, have identical inventors, share the same or substantially similar
10 prior art, and are allegedly infringed by the same Samsung products.

On April 12, 2012, Judge

11 Grewal granted Samsung’s motion to enforce the Court’s December 22, 2011 order, and required
12 Apple to produce all transcripts with a technological nexus to this action, including the ITC 796
13 Investigation.

(Dkt. No. 867 at 9:22-23) (“Apple must produce the deposition transcripts from

14 the ITC 796 ITC Investigation.”).

Apple’s claim that Samsung is not entitled to use these plainly

15 relevant admissions is unsupported.
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Mr. Stringer’s witness statement and hearing testimony are also covered by Judge

17 Grewal’s April 12 order compelling Apple to produce other materials from related proceedings.
18 Judge Grewal held that “[m]aterials from other actions that meet the technological nexus standard
19 are relevant, and in the case of court documents, the relevance is substantial enough to justify the
20 burden to Apple of producing them.” (Dkt. No. 867 at 11:21-23).

Mr. Stringer’s witness

21 statement, hearing testimony and exhibits are plainly “court documents” contemplated by the
22 Order.

Nor can Apple deny that the ITC 796 Investigation has a technological nexus with this

23 case or that the contents of the documents are relevant.
24 about the ITC protective order is unavailing.

Moreover, Apple’s purported concern

Apple raised this argument in its opposition to the

25 motion to compel, and Judge Grewal ordered the production of transcripts.

For the foregoing

26 reasons, Apple’s attempt to prevent relevant admissions from being used in this action must be
27 denied.
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Case No. 11-cv-01846-LHK
-5SAMSUNG’S RESPONSES TO APPLE’S OBJECTIONS TO STRINGER CROSS EXHIBITS

1 DATED:
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July 30, 2012

QUINN EMANUEL URQUHART &
SULLIVAN, LLP
By /s/ Victoria F. Maroulis
Charles K. Verhoeven
Victoria F. Maroulis
Kevin P.B. Johnson
Michael T. Zeller
Attorneys for SAMSUNG ELECTRONICS
CO., LTD., SAMSUNG ELECTRONICS
AMERICA, INC., and SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC

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Case No. 11-cv-01846-LHK
-6SAMSUNG’S RESPONSES TO APPLE’S OBJECTIONS TO STRINGER CROSS EXHIBITS