Apple Inc. v. Samsung Electronics Co. Ltd. et al
Filing
1462
RESPONSE to APPLE'S RESPONSES TO SAMSUNG'S OBJECTIONS TO THE EXHIBITS AND DEMONSTRATIVES TO BE USED DURING THE EXAMINATIONS OF PHIL SCHILLER, PETER BRESSLER AND SUSAN KARE, AND JUSTIN DENISON by Apple Inc.. (Jacobs, Michael) (Filed on 7/30/2012)
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HAROLD J. MCELHINNY (CA SBN 66781)
hmcelhinny@mofo.com
MICHAEL A. JACOBS (CA SBN 111664)
mjacobs@mofo.com
RACHEL KREVANS (CA SBN 116421)
rkrevans@mofo.com
JENNIFER LEE TAYLOR (CA SBN 161368)
jtaylor@mofo.com
ALISON M. TUCHER (CA SBN 171363)
atucher@mofo.com
RICHARD S.J. HUNG (CA SBN 197425)
rhung@mofo.com
JASON R. BARTLETT (CA SBN 214530)
jasonbartlett@mofo.com
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: (415) 268-7000
Facsimile: (415) 268-7522
WILLIAM F. LEE
william.lee@wilmerhale.com
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
Telephone: (617) 526-6000
Facsimile: (617) 526-5000
MARK D. SELWYN (SBN 244180)
mark.selwyn@wilmerhale.com
WILMER CUTLER PICKERING
HALE AND DORR LLP
950 Page Mill Road
Palo Alto, California 94304
Telephone: (650) 858-6000
Facsimile: (650) 858-6100
Attorneys for Plaintiff and
Counterclaim-Defendant APPLE INC
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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APPLE INC., a California corporation,
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Plaintiff,
v.
SAMSUNG ELECTRONICS CO., LTD., a
Korean business entity; SAMSUNG
ELECTRONICS AMERICA, INC., a New York
corporation; SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC, a
Delaware limited liability company,
Defendants.
Case No. 11-cv-01846-LHK
APPLE’S RESPONSES TO SAMSUNG’S
OBJECTIONS TO THE EXHIBITS AND
DEMONSTRATIVES TO BE USED
DURING THE EXAMINATIONS OF
PHIL SCHILLER, PETER BRESSLER
AND SUSAN KARE, AND JUSTIN
DENISON
APPLE’S RESPONSES TO SAMSUNG’S
OBJECTIONS TO DEPOSITION
TESTIMONY OF WOOKYUN KHO,
JAEGWAN SHIN & QI LING
Trial:
Time:
Place:
JUDGE:
July 30, 2012
9:00 a.m.
Courtroom 1, 5th Floor
HON. LUCY H. KOH
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APPLE’S RESPONSES TO SAMSUNG’S OBJECTIONS TO EXHIBITS AND DEMONSTRATIVES
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Consistent with the Court’s direction to the parties to streamline their trial presentations
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and minimize the number of exhibits, Apple has offered selected categories of admissible
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documents, photographs, and physical objects in summary form under Fed. R. Evid. 1006. This
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approach will “contribute[] to the clarity of the presentation to the jury” and “avoid[] needless
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consumption of time[.]” United States v. Gardner, 611 F.2d 770, 776 (9th Cir. 1980).
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Samsung has objected to several of these exhibits and related demonstratives as allegedly
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improper summaries, but identified little or no basis for its objections during the parties’ June 29,
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2012 meet and confer and related correspondence. In all cases, Apple’s summaries reflect
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evidence: (1) that is itself admissible; (2) that either is or has been available for Samsung’s
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inspection or has been produced; and (3) is so voluminous that its entry at trial would burden the
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jury and bog down Apple’s ability to present its case. For all these reasons, they satisfy the
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requirements of Rule 1006.
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Exs./
Demons.
Apple’s Responses to Samsung’s Specific Objections Raised
during the Parties July 29, 2012 Meet and Confer
PX133-135,
PX138,
PX140-141,
PDX1-3,
PDX5-7
(Schiller)
The articles that comprise PX133-135, PX138, and PX140-141 and are quoted
in PDX1-3 and PDX5-7 are not hearsay or are subject to a hearsay exception.
As examples of press coverage that Apple’s products have received, these
articles are highly relevant under Rule 402 to Apple’s claims for trade dress
dilution. Third-party publicity is a relevant factor under 15 U.S.C.
§ 1125(c)(2)(A)(i). There is nothing unfairly prejudicial or misleading about
these published articles, which are from reputable news sources. Given the
standard for fame, Apple’s selection of six articles is not cumulative.
Mr. Schiller has personal knowledge of these articles and may sponsor them.
PX11,
PDX11,
PX125-128,
PX129-132
(Schiller)
Samsung’s objection to PX125, which was not identified on Mr. Schiller’s
exhibit list, is unnecessary and premature. As to the remainder, these ads are
highly relevant to Apple’s trade dress claims because extensive advertising is
probative of secondary meaning and fame. See, e.g., 15 U.S.C.
§ 1125(c)(2)(A)(i). Apple’s examples establish the extensive promotion of its
trade dress and thus are not cumulative. There is no risk of prejudice because
jurors will be able to attribute proper weight to ads, which they encounter in
everyday life. They also are not hearsay as they are not being offered for their
truth but as examples of ads that Apple ran in the U.S.
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PX12-14,
PX17
(Schiller)
Apple’s Rule 1006 exhibits are admissible for the reasons stated above.
These documents are not hearsay because they are not being offered for their
truth, but as examples of ads that Apple ran in the U.S. and press coverage
that Apple’s products have received. These ads, video clips, and articles are
highly relevant under Rule 402 to Apple’s claims for trade dress dilution as
advertising and third-party publicity is a relevant factor under 15 U.S.C.
§ 1125(c)(2)(A)(i). As published clips and articles from reputable media
sources, there is nothing unfairly prejudicial or misleading about these
documents. There is no risk of prejudice with respect to the ads because
jurors will be able to attribute proper weight to these types of documents.
Given the standard for fame, the use of these compilations is not cumulative.
PDX13
(Schiller)
Apple timely disclosed this demonstrative. There is nothing misleading about
this demonstrative, which identifies overlapping trade channels for the parties’
prodcuts. This demonstrative is directly relevant to the Sleekcraft factor for
trade dress infringement regarding similarity of trade channels, and its
relevance is not substantially outweighed by a risk of unfair prejudice,
confusion, or delay. The source of this demonstrative is Mr. Schiller’s
forthcoming testimony. This demonstrative will not be entered into evidence,
but will be used to guide the jury through Mr. Schiller’s testimony.
Mr. Schiller has personal knowledge of Apple and Samsung’s respective trade
channels and thus is a proper sponsoring witness.
PDX10
(Schiller)
Apple timely disclosed this demonstrative. These charts incorporate
information from PX143-146, which were timely disclosed in Mr. Schiller’s
exhibit list and to which Samsung has not objected. PDX10.1 and PDX10.2
incorporate information from PX144-146 and PX143-145, respectively.
PX33
(Schiller)
Samsung objects to Apple’s alleged failure to “identify the source” of this
exhibit. As its Bates number indicates, however, this document was produced
during discovery with a load file identifying its custodian. Mr. Schiller,
Apple’s Senior Vice President of Worldwide Marketing, also can speak to the
accuracy of the information in this exhibit.
PX16
(Schiller)
This chart accurately incorporates information from PX33; it is not
misleading. Apple timely disclosed this exhibit with its trial exhibit list and
with Mr. Schiller’s exhibit list.
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PX3/PX4
(Bressler)
These FRE 1006 exhibits summarize the voluminous number of phones and
tablets considered by Apple’s expert, Mr. Bressler, in his opening and rebuttal
expert reports. Due to the sheer number of devices examined by Mr. Bressler,
a summary of these devices will clarify for the jury issues related to
infringement, copying, willfulness, and validity. There is nothing misleading
about the sizing or presentation of the Apple products, and PX4 is
straightforward images from the patent. The exhibits are not outside the
scope of Mr. Bressler’s expert reports, as they attached and he opined
regarding similar exhibits. See, e.g., Bressler Op. Report at Ex. 25 and 26;
Reb. Report at Ex. 2 (Bartlett Decl. Exs. A-B). Nothing is untimely about the
underlying exhibits, and they were not stricken by Court order.
PX5/PX6
(Bressler)
The Court has already ruled on the relevance of the media articles that are
summarized in these exhibits. (Dkt. No. 1267 at 3-4.) These FRE 1006
exhibits condense the voluminous articles cited by Apple’s experts in their
reports and are relevant to at least infringement, consumer confusion,
copying, and willfulness. (Dkt. No. 1455 at 2.)
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Demons. 6166 (Bressler)
Slides 61 to 66 are merely demonstrative versions of PX3 and PX4. As PX3
and PX4 are admissible for the reasons discussed above, demonstrative slides
61-66 are unobjectionable.
PX7, PX21
(Kare)
Apple’s summaries are proper under FRE 1006 for the reasons addressed
above. These accused phones (which are, of course, Samsung’s own phones)
were disclosed in Apple’s contention interrogatory responses and repeatedly
made available for inspection by Samsung. The photographic summaries
allow the jury to hold in one document a complete set of images for the
numerous phones accused of infringement in this case, including all views of
the hardware and each page of the accused application screens. This will
make the presentation of evidence smoother and the receipt of evidence more
convenient for the jury. For example, these summaries will allow the jury to
study the universe of accused Samsung application screens together, without
needing to turn on each physical device, navigating to each application screen,
and passing the device amongst themselves.
PX22 (Kare)
As with PX7 and PX21, this compilation of alternative GUI designs contains
admissible evidence in the form of GUI designs and Samsung internal
documents. It is much more convenient for the jury to have in a single
summary these materials summarized from voluminous Samsung documents
and different sources.
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PX35, PX44
(Kare)
These are internal Samsung documents that show Samsung’s copying of
Apple's graphical user interface (GUI) designs. As statements by Samsung’s
employees within the scope of their employment, they are party admissions
and not hearsay. Moreover, they are the type of documents reasonably relied
upon by a GUI design expert to determine whether Samsung mimicked
Apple's designs. As such, they are admissible under FRE 703 because their
probative value in showing Samsung’s intent to copy Apple substantially
outweighs any prejudicial effect. With nearly 30 years of experience in icon
and user interface graphic design, Dr. Kare is competent to opine on the
designs shown in these documents. These documents also are discussed in
Dr. Kare's opening expert report.
PX41, PX55
(Kare)
See response concerning PX35, PX44.
Demons. 56
(Kare)
These demonstrative slides are admissible for the same reasons stated above
for PX35 and PX44 with respect to Samsung’s improper sponsoring witness,
foundation, and competency objections. They also are proper under
Rules 803(6)(b) and 801(2).
Demons. 3,
34, 43, 76-88
(Kare)
“Interactive” on these slides simply means that the order of slides may change
to accommodate Ms. Kare’s testimony. Clicking on an interactive slide
simply jumps to another slide in the demonstrative. All slides that Apple may
use with Ms. Kare, including those linked, have been provided.
PX44
(Denison)
The Court has already considered PX44, a 132-page document detailing
Samsung’s intentional copying by comparing and then adopting Apple’s
software design. PX44 is not hearsay because it is a party admission, and it
was made by Samsung employees within the scope of their employment.
Apple will establish the foundation for PX44 with or use it for impeachment
purposes with impeach Mr. Denison, STA’s Chief Strategy Officer for STA
and its 30(b)(6) witness on “Samsung’s imitation, copying, or emulation” of
Apple’s products. FRE 613 is inapplicable, as it relates to prior witness
statements. Samsung’s objections that this exhibit is prejudicial under FRE
403, may confuse or distract, or is consumptive of Apple’s time (in this timed
trial) lack merit. The extremely high probative value of this exhibit outweighs
any risk of prejudice to Samsung.
PX54
(Denison)
PX54 is not being used to prove the truth of the matter asserted. The
document bears on willfulness, as it shows that Samsung hired consultants to
teach Samsung about the inner workings of Apple’s business. PX54 is also an
adoptive admission. Alternatively, PX54 is a business record made of
regularly conducted market research. FRE 613 is inapplicable, as it does not
implicate a prior witness statement. Samsung’s boilerplate FRE 403 objection
is meritless; the document is not prejudicial, confusing, distracting, or unduly
consumptive of time.
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PX58, PX62
(Denison)
PX58 and PX62 are not hearsay, but party admissions. Both exhibits are
either emails or presentations prepared by Denison or Denison’s marketing
team. Both were prepared by Samsung employees within the scope of their
employment.
General
objection to
“demonstratives”
(Denison)
As Apple has already informed Samsung, Apple mistakenly labeled certain
materials for impeachment with Mr. Denison or to refresh his recollection
under the category “demonstratives.” Samsung’s general objection therefore
is not well-taken. Apple’s use of these documents will be proper under Rules
607 and 612.
Playback of
depo.
testimony
during
Denison
Samsung’s objection to the playback of deposition testimony of Jaegwan
Shin, Qi Ling and Wookyun Kho during Mr. Denison’s examination is both
premature and improper. It is premature because Apple has not yet attempted
to play any of these individual’s depositions. Such testimony, in any event,
may properly be used to impeach Mr. Denison if he states or suggests (as he
did at his deposition as Samsung’s corporate representative) that Samsung has
never considered Apple’s products. Each of Mr. Shin, Mr. Ling, and Mr. Kho
testified at their depositions that they personally considered Apple’s iPhone or
iPad products in designing Samsung’s products.
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Jaegwan Shin Samsung objects to the identified excerpts from Mr. Shin’s testimony almost
depo.
entirely on the basis that he is not an unavailable witness. But his testimony is
objections
an admissible party admission under Rule 801(d)(2)(D), and thus may be
admitted regardless of availability. See Jack B. Weinstein & Margaret A.
Berger, Weinstein’s Federal Evidence §804.04(c) (2d ed. 2002) (explaining
admissibility of such evidence); In re Coordinated Pretrial Proceedings in
Petroleum Products Antitrust Litigation, 906 F.2d 432, 458 (9th Cir. 1990)
(admissible so long as “related to a matter within his scope of employment,”
even absent authority to bind the corporation).
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Mr. Shin is a Senior Director at Samsung’s the San Jose R&D center for its
mobile division. Mr. Shin admitted that he used the iPad, iPod Touch, and
iPhone 3G and 4S in developing Samsung’s products. Mr. Shin’s testimony
does not assume facts – he conceded this use, repeatedly, in the cited clips and
elsewhere at his deposition. See, e.g., 23:14-18 ([Q] “Why did you use an
iPad in connection with your work at Samsung?” [A] “As I mentioned earlier,
in the course of development, we would make comparisons with the products
of many other companies.”)
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Qi Ling
depo.
objections
See Shin objections. Mr. Ling’s testimony is admissible for the same reasons
as Mr. Shin, regardless of his availability. Mr. Ling admitted that he used an
iPad 2 in connection with his work at Samsung to “run a benchmark for the
browser project.” (24:17-20)
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APPLE’S RESPONSES TO SAMSUNG’S OBJECTIONS TO EXHIBITS AND DEMONSTRATIVES
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Wookyun
Kho depo.
objections
Samsung has objected to only one excerpt (49:7-23) based on his lack of
foundation. Mr. Kho’s testimony itself establishes the foundation for his
admissions that he studied Apple’s products in designing Samsung’s bounce
feature. See 49:10-19 (“At the time, I was involved in the work of improving
the bouncing effect and iPhone and iPad had effects that were similar in
appearance or the shape . . . .”).
Dated: July 30, 2012
MORRISON & FOERSTER LLP
By:
/s/ Michael A. Jacobs________
Michael A. Jacobs
Attorneys for Plaintiff
APPLE INC.
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APPLE’S RESPONSES TO SAMSUNG’S OBJECTIONS TO EXHIBITS AND DEMONSTRATIVES
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