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

Filing 1467

OBJECTIONS to APPLE'S OBJECTIONS TO THE EXHIBITS TO BE USED DURING THE DIRECT EXAMINATION OF JUSTIN DENISON by Apple Inc.. (Jacobs, Michael) (Filed on 7/30/2012)

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1 2 3 4 5 6 7 8 9 10 11 12 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 13 UNITED STATES DISTRICT COURT 14 NORTHERN DISTRICT OF CALIFORNIA 15 SAN JOSE DIVISION 16 17 APPLE INC., a California corporation, 18 19 20 21 22 23 24 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, Case No. 11-cv-01846-LHK APPLE’S OBJECTIONS TO THE EXHIBITS TO BE USED DURING THE DIRECT EXAMINATION OF JUSTIN DENISON Trial: Time: Place: JUDGE: July 30, 2012 9:00 a.m. Courtroom 1, 5th Floor HON. LUCY H. KOH Defendants. 25 26 27 28 APPLE’S OBJECTIONS TO EXHIBITS TO BE USED DURING JUSTIN DENISON DIRECT EXAMINATION CASE NO. 11-CV-01846-LHK sf-3176445 1 Apple does not object to the majority of Samsung’s proposed exhibits for the direct 2 examination of Justin Denison. Apple limits its objections to just two exhibits, and reserves it 3 objections as to a third. 4 DX627 is inadmissible for several reasons. First, there is no proof that this exhibit (a 5 lengthy list of Best Buy circulars) is authentic under Rule 901. Best Buy, not Samsung, produced 6 these documents, and no Best Buy employee was deposed or testified as to their authenticity. 7 Mr. Denison cannot authenticate these circulars (some of which are in Spanish). Second, to the 8 extent to that Samsung seeks to use these exhibits to rely upon art or devices that Judge Grewal 9 has struck as not timely disclosed, Samsung’s attempted use of this exhibit to discuss such art or 10 devices is improper. (Dkt. No. 1144.) For example, Judge Grewal struck Samsung’s attempted 11 reliance on the iRiver U and YP-K3 mp3 player – but these devices appear at pages 362, 407, 598 12 and 123 of this exhibit. To the extent the exhibit includes other prior art on which Samsung may 13 attempt to rely, such as the Sirius S50 mp3 player at page 123, that art was never disclosed. 14 Third, the exhibit is not relevant under Rules 402 and 403. At most, the exhibit shows that 15 Samsung products were marketed by Best Buy, a fact which is not in dispute. Fourth, the exhibit 16 (literally hundreds of pages of advertisements) attempts to skirt the Court’s limit of 200 exhibits 17 per side and is not a Rule 1006 summary 18 DX629 is also inadmissible. First, Samsung’s television ads are not relevant for the 19 proffered purpose of showing “lack of confusion or dilution.” (Dkt. No. 1285-1 at 11.) Whether 20 or not Samsung’s products infringe or dilute Apple’s trade dress does not turn on the content of 21 Samsung’s own ads. Second, Mr. Denison is an improper witness to sponsor these ads, as he 22 testified during his deposition that he has no role in advertising. See, e.g., Jan. 25, 2012 Dep. 23 Tr. at 26-27 (“Q. Is it part of your responsibility to determine the advertising that is done for 24 STA’s productions in the United States? A. I’m not in charge of any advertising decisions. . . . 25 Q. Is there any aspect of the advertising campaign for STA products that's done in the United 26 States that -- that you participate in? A. No.”). Third, these television ads are inadmissible 27 hearsay under Rule 802. Should the exhibit come into evidence, Apple seeks a limiting 28 instruction under Rule 105 stating these ads are only relevant to show Samsung’s marketing APPLE’S OBJECTIONS TO EXHIBITS TO BE USED DURING JUSTIN DENISON DIRECT EXAMINATION CASE NO. 11-CV-01846-LHK sf-3176445 1 1 channels, Samsung’s target consumer, and the competitive nature of the parties’ respective 2 products. 3 Apple does not object to DX684 (a depiction of various Samsung phones) because the 4 Court overruled Apple’s objection to the demonstrative version in its July 29, 2012 ruling on 5 Apple’s objections to Samsung’s opening slides. (Dkt. No. 1456 at 2 (discussing slide 10).) 6 Apple assumes that the Court has determined that this exhibit is admissible as a summary under 7 Rule 1006, and it notes that it has offered similar compilations. If Apple’s understanding of the 8 Court’s ruling is incorrect, Apple objects to this exhibit under Rule 1006 as an inaccurate and 9 incomplete representation of Samsung’s smartphone products. 10 Dated: July 30, 2012 MORRISON & FOERSTER LLP 11 12 13 14 By: /s/ Michael A. Jacobs Michael A. Jacobs Attorneys for Plaintiff APPLE INC. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 APPLE’S OBJECTIONS TO EXHIBITS TO BE USED DURING JUSTIN DENISON DIRECT EXAMINATION CASE NO. 11-CV-01846-LHK sf-3176445 2

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