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

Filing 1468

OBJECTIONS to Apple's Proposed Examination Exhibits and Materials For Second Day of Trial by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC(a Delaware limited liability company). (Attachments: # 1 Declaration Of Kara M. Borden, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3)(Maroulis, Victoria) (Filed on 7/30/2012)

1 QUINN EMANUEL URQUHART & SULLIVAN, LLP
Charles K. Verhoeven (Cal. Bar No. 170151)
 [e-mail]
50 California Street, 22nd Floor
 San Francisco, California 94111
Telephone: [phone]
 Facsimile: [phone]
 Kevin P.B. Johnson (Cal. Bar No. 177129)
[e-mail]
 Victoria F. Maroulis (Cal. Bar No. 202603)
[e-mail]
th
 555 Twin Dolphin Drive 5 Floor
Redwood Shores, California 94065
 Telephone: [phone]
Facsimile: [phone]

Michael T. Zeller (Cal. Bar No. 196417)
 [e-mail]
865 S. Figueroa St., 10th Floor
 Los Angeles, California 90017
Telephone: [phone]
 Facsimile: [phone]
 Attorneys for SAMSUNG ELECTRONICS
CO., LTD., SAMSUNG ELECTRONICS
 AMERICA, INC. and SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC



UNITED STATES DISTRICT COURT



NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION

 APPLE INC., a California corporation,



Plaintiff,
vs.

 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
SAMSUNG’S OBJECTIONS TO APPLE’S
PROPOSED EXAMINATION EXHIBITS
AND MATERIALS FOR SECOND DAY
OF TRIAL






02198.51855/4880767.1

Case No. 11-cv-01846-LHK
SAMSUNG’S OBJECTIONS TO APPLE’S PROPOSED EXAMINATION EXHIBITS AND MATERIALS
FOR SECOND DAY OF TRIAL

1
2
3
4
5

WITNESS
AND
EXHIBIT
NO.
Bressler:
PX 3 and 4
PDX 61 –
66

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

02198.51855/4880767.1

Bressler:
PX 5 and 6

SAMSUNG’S OBJECTIONS

These exhibits contain information that was not timely produced, not produced at
all in discovery, or not on Apple‟s exhibit list. They are also outside the scope of
Mr. Bressler‟s report and improper summaries under FRE 1006. Exhibit 3
consists of images of 28 different phones and Exhibit 4 contains images of 16
different tablets. Moreover, Mr. Bressler is not competent to testify about these
exhibits to the extent they purport to comment on internal Samsung product
development and Samsung‟s intent.
These exhibits also are misleading and unfairly prejudicial. Samsung has designed
and marketed hundreds of designs that are not represented in these exhibits. Apple
has selectively chosen from among a wide variety of different Samsung designs to
present a misleading picture of Samsung‟s design history. These documents are
irrelevant, incomplete and unfairly prejudicial, even if shown to the jury as
demonstratives (let alone as exhibits that are admitted into evidence). They
suggest a timeline of events that never occurred based only on Apple‟s selective
compilation of images, and should be precluded on this basis alone.
PX 5 and PX6 contain quotations from 9 and 18 separate press reports,
respectively. None of these exhibits is permissible as a Federal Rule of Evidence
1006 summary. Federal Rule of Evidence 1006 provides that a party may “use a
summary, chart, or calculation to prove the content of voluminous writings,
recordings, or photographs that cannot be conveniently examined in court.” Fed.
R. Evid. 1006. The underlying materials are not voluminous, are straightforward,
and can be “conveniently examined in court,” and thus Federal Rule of Evidence
1006 does not apply to them. See Highland Capital Mgmt., L.P. v. Schneider,
551 F. Supp. 2d 173, 190 (S.D.N.Y. 2008) (FRE 1006 summaries may only be
used when the underlying evidence is so voluminous that it cannot conveniently be
examined by a jury and cannot be used where the underlying evidence is
“relatively straightforward”); see also United States v. Johnson, 594 F.2d 1253,
1255 (9th Cir. 1979) (“The purpose of Rule 1006 is to allow the use of summaries
when the volume of documents being summarized is so large as to make their use
impractical or impossible.”). Indeed, PX 5 and 6 are the exact opposite of the
summaries permitted under this rule: instead of proving the content of voluminous
documents in condensed form, they collect a small number of separate documents
in a single larger exhibit. None of the cases Apple has cited supports the
admission of these exhibits under Rule 1006 – those courts permitted summaries
of documents previously admitted as separate exhibits because they assisted the
jury in understanding the complicated content of “voluminous records that cannot
readily be presented in evidence to a jury and comprehended.” United States v.
Rizk, 660 F.3d 1125, 1131 (9th Cir. 2011) (allowing chart summarizing the
mortgage and appraisal data for 96 properties in a real estate loan fraud case); see
also United States v. Shirley, 884 F.2d 1130, 1133 (9th Cir. 1989) (allowing chart
showing information about a web of telephone calls that would “help the jury
organize and evaluate evidence which is factually complex and fragmentally
revealed in the testimony of the multitude of witnesses.”). PX 5 and 6, in
contrast, allow Apple to present argument through selecting choice quotations and
to avoid the Court‟s 200-exhibit limit.
The quotations are also hearsay. Apple argues that it may use these exhibits
under FRE 703. But in jury trials, “federal law generally bar[s] an expert from

Case No. 11-cv-01846-LHK
-1SAMSUNG’S OBJECTIONS TO APPLE’S PROPOSED EXAMINATION EXHIBITS AND MATERIALS
FOR SECOND DAY OF TRIAL

disclosing such inadmissible evidence.” Williams v. Illinois, 132 S. Ct. 2221,
2234 (2012). Experts are thus prevented from “simply recit[ing] facts that
constitute inadmissible hearsay.” McDevitt v. Guenther, 522 F. Supp. 2d 1272,
1294 (D. Haw. 2007) (barring such sections of expert‟s report); see also Malletier
v. Dooney & Bourke, Inc., 525 F. Supp. 2d 558 (S.D.N.Y. 2007) (“[A] party
cannot call an expert simply as a conduit for introducing hearsay under the guise
that the testifying expert used the hearsay as the basis of his testimony”).

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

02198.51855/4880767.1

Kare: PX 7,
21 22, and
161

These exhibits should also be excluded because they are not relevant to the claims
and defenses in this trial, and they are far more prejudicial, confusing and
misleading than they are probative. FRE 402, 403.
Samsung objects to these exhibits under FRE 1006. Moreover, Apple never
produced these images during discovery. These exhibits also violate MIL No. 7
and the Court‟s statements that the jury should be presented with actual products,
not manipulated photographs of the products arranged in “views corresponding” to
the figures in Apple‟s design patents. Exhibit 21 is also misleading in that it only
presents a partial representation of the GUI of the accused products. These
exhibits also lack foundation and a proper sponsoring witness, particularly with
respect to Exhibit 22 and its inclusion of internal Samsung documents. Moreover,
Exhibit 22 is misleading in its use of callouts which are not representative of the
contents of the underlying document.
Ms. Kare, a non-percipient witness, is not a proper sponsoring witness for these
internal Samsung documents and cannot lay foundation for them.

Kare: PX
35, 41, 44,
55, 178, and
The quotations in these exhibits are inadmissible hearsay. See, e.g., Alchemy II,
179, 49-54
Inc. v. Yes! Entertainment Corp., 844 F. Supp. 560, 570 n. 12 (C.D. Cal. 1994);
Williams v. Illinois, 132 S. Ct. 2221, 2234 (2012); McDevitt v. Guenther, 522 F.
Supp. 2d 1272, 1294 (D. Haw. 2007)
These documents also do not relate to the specific intellectual property rights at
issue, as the Court has already recognized with respect to PX 44, and should
therefore be excluded under FRE 402 and 403.

Finally, these documents are being used for testimony beyond Ms. Kare‟s
competence. Susan Kare describes herself as “an icon designer and user interface
graphic designer.” Ms. Kare is not a psychologist and has no qualifications to
support the introduction of her speculation about Samsung‟s state of mind and
what steps it actually took.
Kare: PX Ms. Kare did not make this comparative analysis of Samsung internal documents
49-54, PDX and the accused interfaces, and she has no foundation to introduce or rely upon
these Samsung documents. Thus, these slides contain undisclosed theories
56
beyond the scope of her report, lack foundation and a proper or competent
sponsoring witness, and are more prejudicial than probative. FRE 402, 403.
Schiller:
PDX 10 purports to be a summary of survey responses about iPhone features but
fails to identify the sources of information reflected in the summary.
PDX 10
Schiller:
PX 11 contains several advertisements stitched into one exhibit. It is cumulative of
PX 11, 126- PX 129-132, as it contains each one of those exhibits. Finally, PX 11 does not
identify any produced document as the source of the images it contains.
132
PX 126 is a video ad for the iPhone. It consists of numerous television and movie
clips of characters answering a phone and saying “Hello,” before the iPhone is
shown briefly. PX 126 is inadmissible under FRE 402 and 403, as irrelevant,
unduly prejudicial, and a waste of time.
Case No. 11-cv-01846-LHK
-2-

SAMSUNG’S OBJECTIONS TO APPLE’S PROPOSED EXAMINATION EXHIBITS AND MATERIALS
FOR SECOND DAY OF TRIAL

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

02198.51855/4880767.1

PX 127 is a video ad for the iPhone and is inadmissible under FRE 402 and 403
for similar reasons. It does not depict the iPhone trade dress asserted by Apple,
instead showing numerous functions unrelated to any asserted IP right. It is,
thus, likely to confuse the jury by highlighting features not at issue here.
PX 128 is a video ad for the iPad. It is also inadmissible under FRE 402 and 403.
PX 128 shows a host of features not related to any asserted IP right, and thus will
improperly influence the jury. Furthermore, at the end, the word “iconic” appears
on the screen. This is not only hearsay but highly prejudicial.
PX 129-132 appear to contain Apple advertisements. However, as these
documents are stamped with Apple‟s internal “Apple Media Arts Lab” labels, they
are not evidence of any public advertisements and are irrelevant. Even if they were
relevant, the exhibits depict features unrelated to any asserted IP right.
Furthermore, the advertisements contain copy that is clearly hearsay and
impermissible under FRE 802.
Schiller:
These exhibits represent an end-run around the Court‟s Order limiting the number
PX 12-14, of exhibits each party may introduce and do not comply with the requirements of
FRE 1006. These exhibits are also hearsay: out of court statements, including
17
titles, about Apple‟s advertisements, as well as “Media Clips” by third-parties,
offered for the truth of the matter asserted. In PX 17 Apple has summarized the
contents of news articles, rendering the document full of double hearsay for which
there is no exception. PX 17 also includes the unfairly prejudicial title for one
article, “Verdict Is in on Apple iPad: It‟s a Winner.” PX 17 is inadmissible under
FRE 1006.
Schiller:
This exhibit includes same prejudicial heading “Verdict Is in on Apple iPad: It‟s a
Winner” as PX 17 and should be excluded under FRE 403
PDX 7
Schiller:
Samsung objects to PDX 13 because there is no source listed for the information it
contains. Apple has not previously disclosed this slide and it appears to contain
PDX 13
information based on sources Apple did not disclose in discovery. Second, Mr.
Schiller is an improper sponsoring witness because he lacks foundation to testify
as to the alleged sales channels for Samsung product. Third, PDX 13 is
misleading and confusing, and as such is more prejudicial than probative. FRE
403. It does not differentiate as to time, which is highly significant given that the
iPhone‟s sole carrier from 2007 to 2010 was AT&T. The slide claims that
Verizon and Sprint were mutual sales channels, but that is not true for most of
time iPhones have been sold. Moreover, it does not differentiate between iPhone
and iPad products, nor does it differentiate between Samsung‟s products.
Schiller:
This exhibit purports to reflect advertising expenditures for iPhone and iPad
products but fails to identify its source material, is misleading and confusing
PX 16
because it depicts only one iPhone product, the iPhone 3GS, in a picture in the
exhibit, and the summary was not disclosed in discovery.
Schiller:
Exhibit 33 purports to reflect advertising expenditures for iPhone and iPad
products but fails to identify its source. It also is confusing and misleading
PX 33
because it does not identify the specific products purportedly reflected in the
totals.
Schiller:
These exhibits are hearsay media statements concerning Apple and Apple‟s
PX
133- products. Apple has argued that these articles show that Apple‟s trade dress is
135,
138, famous and distinctive. But the statements in these articles – e.g., that the iPhone
is “magical” and “revolutionary” – do not describe or depict the trade dress Apple
140-141.
claims in this lawsuit. Most of the statements are not related to the appearance of
PDX 1-3, 5; the iPhone, and the remaining ones, like "the iPhone is pretty,” are irrelevant to
Case No. 11-cv-01846-LHK
-3SAMSUNG’S OBJECTIONS TO APPLE’S PROPOSED EXAMINATION EXHIBITS AND MATERIALS
FOR SECOND DAY OF TRIAL

1
2

Denison:
PX 44

3
4

2. Beyond the scope. Even if testimony about a document with no connection
to the witness were admissible, this exhibit is outside the scope of Mr. Denison‟s
designation as a 30(b)(6) witness. Apple served a notice of deposition calling for
“Samsung‟s imitation, copying, or emulation of any Apple product in developing,
creating, or designing any of the Products at Issue,” which Apple defined as the
four products at issue in its preliminary injunction motion. Borden Decl, Ex 1 at
3:10-14. Samsung stated that Mr. Denison would only be produced to testify
“limited to the features in the Products at Issue that Apple has accused of
infringement in its preliminary injunction motion. (Samsung‟s Objections to
Apple‟s Notice of Rule 30(B)(6) Deposition of Samsung Electronics Co., Ltd
Relating to Apple‟s Motion for a Preliminary Injunction at 20:1-21:14. (emphasis
added)). The features at issue in the Preliminary Injunction Motion were the
features in the D‟087, D‟677, D‟889 and „381 patents, and Apple proceeded with
the deposition on that basis. Accordingly, as this Court recognized yesterday,
Mr. Denison‟s 30b6 testimony “is limited to certain IP rights and to certain
accused products.” Order on Samsung‟s Objections to Apple‟s Opening Slides
(Dkt. 1455) at 4.
As the Court recognized in excluding slides nos. 33, 34, 35 and 36 from
Apple‟s Opening (see id. at 3), PX 44 is replete with discussions that have nothing
to do with the IP at issue in this case. Although the Court permitted Apple‟s
opening to reference slides referencing features at issue regarding Apple‟s icon
design patent and trade dress and the „163 patent, those IP rights were not at issue
in Apple‟s motion for a preliminary injunction and Mr. Denison was not
designated to tesify (and did not testify) on those subjects.
There is nothing in
PX 44 that is within the scope of Mr. Denison‟s designation.

5
6
7
8
9
10
11
12
13
14
15
16
17

3. Improper impeachment. It would be improper for Apple to attempt to
impeach Mr. Denison with PX 44 under FRE 613(b). Only prior inconsistent
statements by the witness testifying are admissible to impeach the witness. See,
e.g. United States v. Berile, 286 F.3d 749, 757-758 (4th Cir. 2002) (“Only prior
inconsistent statements made by the witness are admissible as impeachment
evidence under FRE 613(b).”); Garcia-Martinez v. City & County of Denver, 392
F.3d 1187, 1194 (10th Cir. 2004) (“implicit in the use of prior inconsistent
statements to impeach is the requirement that the impeached witness actually
made the prior statement”). Because Mr. Denison did not make any of the
statements in PX 44, nor was it ever within the scope of his 30b6 deposition to
have knowledge of it, it cannot be used to impeach his testimony.
4. Hearsay not within any exception.

18
19
20
21
22
23
24
25
26
27
28

02198.51855/4880767.1

whether the claimed trade dress is associated with Apple by the public.
1. Lacks personal knowledge. Mr. Denison lacks any personal knowledge
regarding this document. FRE 602. He has never seen it. Even a 30(b)(6)
witness must have personal knowledge about a document for it to be admitted into
evidence through this witness. See, Digene Corp. v. Ventana Medical Systems,
Inc., 316 F. Supp. 2d 174, 181 n.10 (D. Del. 1994).

Denison:
PX 54

1. Improper impeachment under FRE 613(b) for the same reasons as PX 44.
Mr. Denison did not author this document nor did any other Samsung employee.
2. The purposes for which Apple has identified these documents (Damages,
willfulness, secondary considerations, design and trade dress claims and copying)
are not supported by this document, particularly for use with this witness, who had
nothing to do with the design of the accused products. Use of this third-party,
out-of-court statements for any of the purposes Apple identified, especially with
Case No. 11-cv-01846-LHK
-4-

SAMSUNG’S OBJECTIONS TO APPLE’S PROPOSED EXAMINATION EXHIBITS AND MATERIALS
FOR SECOND DAY OF TRIAL

1

this witness, would be an undue distraction and consumption of time. Therefore
54 should also be excluded under FRE 403 and as being offered for an improper
purpose.

2
3
4
5
6
7
8
9
10
11

3. Hearsay not within any exception.
Denison:
The purposes for which Apple has identified these documents (Damages,
willfulness, secondary considerations, design and trade dress claims and copying)
PX 62, 58
are not supported by this document, particularly for use with this witness, who had
nothing to do with the design of the accused products. Use of these out-of-court
statements for any of the purposes Apple identified, especially with this witness,
would be an undue distraction and consumption of time. Therefore PX 62 and 58
should also be excluded under FRE 403 and as being offered for an improper
purpose.
Samsung’s Objections to Other Material Apple Intends to Present
Testimony
FRCP 32 does not permit Apple to play designated deposition testimony of Qi
from Qi Ling Ling and Jaegwan Shin. Rule 32(a)(4) allows a party to offer designated
and Jaegwan testimony if the witness lives more than 100 miles away from the courthouse.
Both witnesses live within 100 miles of the courthouse: Mr. Ling lives in
Shin
Sunnyvale and Mr. Shin lives in Palo Alto. February 1, 2012 Qi Ling Dep. Tr.
at 5:21-25 (Borden Decl Exh 2); January 27, 2012 Jaegwan Shin Dep. Tr. at
6:20-21 (Borden Decl. Exh 3).

12

Apple also cannot present the this testimony under Rule 32(a)(3), which permits
a party to present deposition designations of “the party's officer, director,
managing agent, or designee.” Mr. Ling and Mr. Shin are not officers, members
of the board of directors, managing agents or corporate designees. Mr. Ling is
an engineer at Samsung‟s San Jose Mobile Communications Lab and did not
testify to any managerial authority. Ling Dep. Tr. at 6:2-3; 6:20-21. Mr. Shin
testified that he assists technical communications between the San Jose lab, the
research center, and local engineers; assists “with matters related to Google
approval” and makes arrangements for meetings for guests from Korea. Shin
Dep. Tr. 12:1-21.

13
14
15
16
17

Interrupting Mr. Denison‟s testimony to play deposition testimony of other
witnesses and then returning to Mr. Denison‟s testimony conflicts with standard
practice that witnesses should be called one at a time. Under the Federal Rules
of Civil Procedure, deposition witnesses who testify by deposition should be
called seriatim just like live witnesses.

18
19
20
21
22

Testimony
from
Wookyun
Kho

Samsung incorporates by reference all of its objections previously asserted
against the designated testimony. Specifically, the testimony at 49:7-23 should
be excluded because it lacks proper foundation. The designation improperly
provides testimony regarding certain devices but does not establish the identity
of those devices, which is likely to confuse and mislead a jury.

Denison
PDX‟s

It also is improper impeachment under Rule 613, and improper presentation of
testimony under Rule 611(a)(3) as indicated above.
These documents include deposition testimony, witness statements, and hearing
transcripts, among others. None of these documents are proper demonstratives,
and none of these documents appear on Apple‟s exhibit list. In addition, the ITC
witness statements and hearing transcript are subject to the ITC Protective
Order.

23
24
25
26
27
28

02198.51855/4880767.1

Case No. 11-cv-01846-LHK
-5SAMSUNG’S OBJECTIONS TO APPLE’S PROPOSED EXAMINATION EXHIBITS AND MATERIALS
FOR SECOND DAY OF TRIAL

1 DATED: July 30, 2012
2
3
4
5
6

QUINN EMANUEL URQUHART &
SULLIVAN, LLP
By /s/ Victoria F. Maroulis
Victoria F. Maroulis
Attorneys for SAMSUNG ELECTRONICS
CO., LTD., SAMSUNG ELECTRONICS
AMERICA, INC., and SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

02198.51855/4880767.1

Case No. 11-cv-01846-LHK
-6SAMSUNG’S OBJECTIONS TO APPLE’S PROPOSED EXAMINATION EXHIBITS AND MATERIALS
FOR SECOND DAY OF TRIAL