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

Filing 1490

Administrative Motion to File Under Seal Samsung's Renewed Motion to Seal Dkt. Nos. 927, 991, 1013, 1022, 1060, 1206 filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # 1 Declaration of GiHo Ro in Support of Samsung's Renewed Administrative Motion, # 2 Declaration of Prashanth Chennakesavan in Support of Samsung's Renewed Administrative Motion, # 3 Exhibit 1-15 to the Chennakesavan Declaration, # 4 Proposed Order Granting Samsung's Renewed Administrative Motion to File Under Seal)(Maroulis, Victoria) (Filed on 7/30/2012)

1 QUINN EMANUEL URQUHART & SULLIVAN, LLP
Charles K. Verhoeven (Bar No. 170151)
 [e-mail]
50 California Street, 22nd Floor
 San Francisco, California 94111
Telephone: [phone]
 Facsimile: [phone]
 Kevin P.B. Johnson (Bar No. 177129)
[e-mail]
 Victoria F. Maroulis (Bar No. 202603)
[e-mail]
th
 555 Twin Dolphin Drive, 5 Floor
Redwood Shores, California 94065-2139
 Telephone: [phone]
Facsimile: [phone]

Michael T. Zeller (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 (PSG)
DECLARATION OF GIHO RO IN
SUPPORT OF SAMSUNG’S RENEWED
ADMINISTRATIVE MOTION TO FILE
DOCUMENTS UNDER SEAL



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Case No. 11-cv-01846-LHK (PSG)
RO DECLARATION IN SUPPORT OF SAMSUNG’S RENEWED ADMIN. MOTION TO FILE UNDER SEAL

1

DECLARATION OF GIHO RO

2

I, GiHo Ro do hereby declare as follows:

3

1.

I am a Senior Manager, Administration Team in the Mobile Communications

4 Division at Samsung Electronics Co., Ltd. (“SEC”). I submit this Declaration in support of
5 Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., and Samsung
6 Telecommunications America, LLC (“Samsung’s”) Renewed Administrative Motion to File
7 Documents Under Seal (“Renewed Motion”). I have personal knowledge of the facts set forth in
8 this Declaration and, if called as a witness, could and would competently testify to them.
9

2.

In my position, I assist and report directly to the Chief Financial Officer of SEC’s

10 Mobile Communications Division and receive all financial reporting within the Mobile
11 Communications division that is sent to the Chief Financial Officer. I am thus intimately familiar
12 with the types and nature of financial data and reports generated by Samsung, how those data and
13 reports are used within Samsung, and how they could be used by Samsung’s competitors if
14 publically disclosed.
15

3.

I have reviewed the documents that are the subject of Samsung’s Renewed Motion,

16 and agree with the proposed highlighted redactions attached to the declaration of Prashanth
17 Chennakesavan. The documents at issue are not “financial statements”; nor do they merely
18 contain “financial information.” They identify the cost of the components Samsung uses to
19 manufacture its products, and contain detailed information about the cost to manufacture at least
20 32 product lines and Samsung’s profit margins on those products, calculated using highly sensitive
21 cost and overhead information. In addition, they contain the profits earned for each product line.
22

4.

This is not the type of information that Samsung reports to investors, the SEC, the

23 press, or business analysts. The information has never been made available outside of the
24 company and is also not available to the vast majority of people who work for Samsung. This
25 information is highly confidential to Samsung and Samsung takes extraordinary steps to maintain
26 the secrecy of the information. Even within Samsung’s finance and accounting groups, this
27 information can only be accessed by certain financial personnel on a very restricted need-to-know
28 basis.
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Case No. 11-cv-01846-LHK (PSG)
-2RO DECLARATION IN SUPPORT OF SAMSUNG’S RENEWED ADMIN. MOTION TO FILE UNDER SEAL

1

5.

The information contained in these documents was produced in this case to Apple’s

2 outside counsel and experts for the sole purpose of calculating supposed damages. It was produced
3 under a Protective Order and was marked “Highly Confidential – Attorneys’ Eyes Only.”
4 Samsung took special precautions when producing this data to Apple, including restricting the
5 distribution of soft copies of the data, copying of data, or inspecting the data in an unsecured
6 environment. Samsung distributed a limited number of numbered compact discs that contained
7 soft copies of the data, retrieved the discs after a certain amount of time, and only permitted the
8 inspection of certain data in a secure location to prevent unauthorized copying or dissemination.
9

6.

Disclosure of per product revenues, pricing, and costs will permit competitors to

10 undercut Samsung's pricing, and allow business partners to gain leverage against Samsung in
11 business and supply agreement negotiations.
12

7.

Disclosure of specific cost information and bills of materials will allow competitors

13 and business partners to use this information to gain leverage against Samsung in business and
14 supply agreement negotiations. It will also assist competitors in product and financial planning.
15

8.

The need for confidentiality extends to portions of summaries created by the

16 damages experts in this case. While some of the information contained in these summaries is not
17 highly sensitive, other information, like specific profit margins, and per-unit costs, would have the
18 same detrimental effect on Samsung as the distribution of the underlying data would have. For
19 example, competitors could interfere with pricing strategy if they knew Samsung’s per-unit costs.
20 The highlighted versions of these documents attached to Mr. Chennakesavan’s declaration identify
21 which of the financial figures stated would subject Samsung to improper and unfair competition if
22 disclosed.
23

9.

The requested relief in the Motion to Seal is necessary to protect the confidentiality

24 of extremely sensitive financial information contained in the documents included in Dkt. Nos.
25 927, 1013, 1022, 1060, 1064, 1185, 1206, 1208, and 1209.
26

Dkt. No. 927

27

10.

Samsung’s Motion to Exclude Opinions of Certain of Apple's Experts (Dkt. No.

28 927-01) contains references to very specific cost numbers that are HIGHLY CONFIDENTIAL –
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Case No. 11-cv-01846-LHK (PSG)
-3RO DECLARATION IN SUPPORT OF SAMSUNG’S RENEWED ADMIN. MOTION TO FILE UNDER SEAL

1 ATTORNEYS’ EYES ONLY. It is my understanding that this document also contains
2 information designated by Apple as confidential. I have reviewed a version of the document that
3 was partially redacted and only included Samsung’s financial data. I did not review any of the
4 documents underlying Samsung’s Motion.
5

11.

Page 18 of this document references the specific amount of Samsung’s costs

6 considered by the experts in this case. This information is confidential and proprietary to
7 Samsung, and the adverse competitive effects on Samsung could be devastating if Samsung’s
8 competitors were able to obtain this information because this document was not filed under seal.
9 For example, competitors and business partners could use this information against Samsung to
10 undercut Samsung's pricing, or gain leverage against Samsung in business and supply agreement
11 negotiations. However, only the highlighted portions of this document need to be sealed in order
12 to protect the critical information and Samsung's interests.
13

12.

Exhibits 1, 3, and 5 to the Declaration of Joby Martin in support of Samsung’s

14 Motion to Exclude Opinions of Certain of Apple's Experts (Dkt. Nos. 927-03, 927-05 , and 92715 07) are documents prepared by Samsung’s damages expert in this litigation that contain HIGHLY
16 CONFIDENTIAL – ATTORNEYS’ EYES ONLY information regarding Samsung’s revenues,
17 pricing, gross profit, and other financial data from which Samsung’s revenues, pricing and profit
18 data can be calculated. It is my understanding that these documents also contain information
19 designated by Apple as confidential. I have reviewed versions of the documents that were
20 partially redacted and only included Samsung’s financial data.
21

13.

The portions of the documents that I reviewed contain highly sensitive and

22 confidential information related to Samsung’s financial results and pricing with carrier customers
23 which are not publicly reported and are protected from disclosure due to their significant
24 competitive value. Even within Samsung, the information is only available to be accessed by a
25 very limited number of finance personnel. This information is confidential and proprietary to
26 Samsung, and the adverse competitive effects on Samsung could be devastating if Samsung’s
27 competitors were able to obtain this information because this document was not filed under seal.
28
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Case No. 11-cv-01846-LHK (PSG)
-4RO DECLARATION IN SUPPORT OF SAMSUNG’S RENEWED ADMIN. MOTION TO FILE UNDER SEAL

1 However, only the highlighted portions of this document need to be sealed in order to protect the
2 critical information and Samsung's interests.
3

14.

Exhibit 10 to the Declaration of Joby Martin in support of Samsung’s Motion to

4 Exclude Opinions of Certain of Apple's Experts (Dkt. No. 927-12) includes spreadsheets prepared
5 by Apple’s expert showing detailed analysis of Samsung’s profits, revenues and cost of goods for
6 2010-2012 that are HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY. It is my
7 understanding that these documents also contain information designated by Apple as confidential.
8 I have reviewed versions of the documents that were partially redacted and only included
9 Samsung’s financial data.
10

15.

The portions of the documents that I reviewed contain highly sensitive and

11 confidential information that is not reported outside of Samsung. Even within Samsung, this
12 information is heavily secured and very few Samsung employees have access to this information.
13 This information could be used by Samsung’s competitors in order to attempt to undercut
14 Samsung’s prices and would disadvantage Samsung’s competitive position if it were not to be
15 filed under seal.
16

16.

Exhibit 2 to the Declaration of Joby Martin in support of Samsung’s Motion to

17 Exclude Opinions of Certain of Apple's Experts (Dkt. No. 927-04) is an excerpt from the
18 HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY deposition of Apple’s damages
19 expert, Terry Musika. This transcript contains very specific information regarding Samsung’s
20 revenues, pricing, gross profit, and other financial data from which Samsung’s revenues, pricing
21 and profit data can be calculated. It is my understanding that this transcript also contains
22 information designated by Apple as confidential. I have reviewed a version of the document that
23 was partially redacted and only included Samsung’s confidential information.
24

17.

The portions of the transcript that I reviewed contain highly sensitive and

25 exceptionally confidential information related to Samsung’s financial results and pricing with
26 carrier customers which are not publicly reported and are protected from disclosure due to their
27 significant competitive value. Even within Samsung, the information is only available to be
28 accessed by a very limited number of finance personnel. This information is confidential and
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Case No. 11-cv-01846-LHK (PSG)
-5RO DECLARATION IN SUPPORT OF SAMSUNG’S RENEWED ADMIN. MOTION TO FILE UNDER SEAL

1 proprietary to Samsung, and the adverse competitive effects on Samsung could be devastating if
2 Samsung’s competitors were able to obtain this information because this document was not filed
3 under seal. However, only the highlighted portions of this document need to be sealed in order to
4 protect the critical information and Samsung's interests.
5

Dkt. No. 991

6

18.

Exhibits F and G to the Declaration of Terry L. Musika in Support of Apple’s

7 Opposition to Samsung’s Motion for Summary Judgment are spreadsheets prepared by Apple’s
8 expert showing detailed analysis of Samsung’s profits, revenues and cost of goods for 2010-2012
9 that are HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY. This information is highly
10 sensitive and confidential and is not reported outside of Samsung. Even within Samsung, this
11 information is heavily secured and very few Samsung employees have access to this information.
12 This information could be used by Samsung’s competitors in order to attempt to undercut
13 Samsung’s prices and would disadvantage Samsung’s competitive position if it were not to be
14 filed under seal.
15

Dkt. No. 1013

16

19.

Exhibit O to the Declaration of Michel Maharbiz in Support of Apple’s Opposition

17 to Samsung’s Motion for Summary Judgment contains HIGHLY CONFIDENTIAL –
18 ATTORNEYS’ EYES ONLY cost information. Specifically, page 15 of this document contains
19 Samsung’s total cost for one of its Galaxy Tab products. This information is confidential and
20 proprietary to Samsung, and the adverse competitive effects on Samsung could be devastating if
21 Samsung’s competitors were able to obtain this information because this document was not filed
22 under seal. For example, competitors and business partners could use this information against
23 Samsung to undercut Samsung's pricing, or gain leverage against Samsung in business and supply
24 agreement negotiations. However, only the highlighted number in this document needs to be
25 sealed in order to protect the critical information and Samsung's interests.
26

Dkt. No. 1022

27

20.

Exhibit 37 to the Declaration of Peter Bressler in Support of Apple’s Opposition to

28 Samsung’s Motion for Summary Judgment (Dkt. No. 1022) is a document produced by Samsung
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Case No. 11-cv-01846-LHK (PSG)
-6RO DECLARATION IN SUPPORT OF SAMSUNG’S RENEWED ADMIN. MOTION TO FILE UNDER SEAL

1 in this litigation that bears the designation HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
2 ONLY. The document contains confidential information regarding Samsung’s product costs.
3 This document contains highly sensitive and exceptionally confidential information related to
4 Samsung’s financial information and costs which is proprietary to Samsung. The adverse
5 competitive effects on Samsung could be devastating if Samsung's competitors were able to obtain
6 this information because this document was not filed under seal. However, only the highlighted
7 portions of this document need to be sealed in order to protect the critical information and
8 Samsung's interests.
9
10

Dkt. No. 1060
21.

Exhibit B to the Declaration of Michael J. Wagner in Support of Samsung's Reply

11 in Support of Motion to Exclude Testimony of Apple's Experts (Dkt. No. 1060-37) is a document
12 prepared by Samsung’s damages expert in this litigation that contains HIGHLY CONFIDENTIAL
13 – ATTORNEYS’ EYES ONLY information regarding Samsung’s revenues, pricing, gross profit,
14 and other financial data from which Samsung’s revenues, pricing and profit data can be calculated.
15 It is my understanding that this document also contains information designated by Apple as
16 confidential. I have reviewed a version of the document that was partially redacted and only
17 included Samsung’s financial data.
18

22.

The portions of the document that I reviewed contain highly sensitive and

19 exceptionally confidential information related to Samsung’s financial results and pricing with
20 carrier customers which are not publicly reported and are protected from disclosure due to their
21 enormous competitive value. Even within Samsung, the information is only available to be
22 accessed by a very limited number of finance personnel. This information is confidential and
23 proprietary to Samsung, and the adverse competitive effects on Samsung could be devastating if
24 Samsung’s competitors were able to obtain this information because this document was not filed
25 under seal. However, only the highlighted portions of this document need to be sealed in order to
26 protect the critical information and Samsung's interests.
27
28
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Case No. 11-cv-01846-LHK (PSG)
-7RO DECLARATION IN SUPPORT OF SAMSUNG’S RENEWED ADMIN. MOTION TO FILE UNDER SEAL

1

Dkt. No. 1206

2

23.

Apple’s Opposition to Samsung’s Motions in Limine (Dkt. No. 1206) includes

3 discussion of Samsung’s confidential product strategy documents, market and consumer research
4 documents, and Samsung’s profits. This information is not a matter of public record and reflects
5 Samsung’s confidential information. This information is confidential and proprietary to Samsung,
6 and the adverse competitive effects on Samsung could be devastating if Samsung’s competitors
7 were able to obtain this information because this document was not filed under seal. For example,
8 competitors could use Samsung’s profit data to better plan their own product releases and pricing.
9 However, only the highlighted portions of this document need to be sealed in order to protect the
10 critical information and Samsung’s interests.
11

24.

Exhibit 42 to the Kanada Declaration is a document prepared by Samsung’s

12 damages expert in this litigation that contains HIGHLY CONFIDENTIAL – ATTORNEYS’
13 EYES ONLY information regarding Samsung’s recent profits calculated on a product-by-product
14 basis. This document contains highly sensitive and exceptionally confidential information related
15 to Samsung’s recent financial results which are not publicly reported and are protected from
16 disclosure due to their significant competitive value. Such information is kept highly confidential
17 even within Samsung and can only be accessed by certain financial personnel, on a very restricted
18 need-to-know basis. This information is confidential and proprietary to Samsung, and the adverse
19 competitive effects on Samsung could be devastating if Samsung’s competitors were able to
20 obtain this information because this document was not filed under seal. For example, competitors
21 and business partners could use this information against Samsung to improve or plan their own
22 profit strategies in order to better compete. Because the confidential information can been seen
23 throughout this document, the document should be sealed in its entirety.
24

25.

Exhibit 43 to the Kanada Declaration consists of an excerpt from the transcript of

25 Michael Wagner which was designated HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
26 ONLY. The excerpt discusses confidential information regarding Samsung’s profit margins for
27 particular products which are not publicly reported and are protected from disclosure due to their
28 enormous competitive value. This information is confidential and proprietary to Samsung, and the
02198.51855/4880480.1

Case No. 11-cv-01846-LHK (PSG)
-8RO DECLARATION IN SUPPORT OF SAMSUNG’S RENEWED ADMIN. MOTION TO FILE UNDER SEAL

1 adverse competitive effects on Samsung could be devastating if Samsung’s competitors were able
2 to obtain this information because this document was not filed under seal. If a competitor knew
3 what Samsung’s profit margins were on particular products, it could use that information to
4 undercut Samsung’s pricing and obtain an unfair competitive advantage. However, in an effort to
5 balance the public’s need to know with Samsung’s interest in protecting its confidential
6 information, Samsung is seeking to seal only one sentence, which is highlighted, and which
7 contains the most sensitive information.
8

26.

Exhibit 44 to the Kanada Declaration consists of an excerpt from the transcript of

9 Timothy Sheppard which was designated HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
10 ONLY. The excerpt discusses confidential information regarding Samsung’s profit margins
11 which are not publicly reported and are protected from disclosure due to their enormous
12 competitive value. Such information is kept highly confidential even within Samsung and can
13 only be accessed by certain financial personnel, on a very restricted need-to-know basis. This
14 information is confidential and proprietary to Samsung, and the adverse competitive effects on
15 Samsung could be devastating if Samsung’s competitors were able to obtain this information
16 because this document was not filed under seal. For example, competitors and business partners
17 could use this information against Samsung to improve or plan their own profit strategies in order
18 to better compete. Competitors could also use this information against Samsung in business
19 negotiations. Because the confidential information can been seen throughout this document, the
20 document should be sealed in its entirety.
21
22

I declare under penalty of perjury that the forgoing is true and correct to the best of my

23 knowledge. Executed this 31st day of July, 2012, in Suwon, South Korea.
24
25
26
27
28
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Case No. 11-cv-01846-LHK (PSG)
-9RO DECLARATION IN SUPPORT OF SAMSUNG’S RENEWED ADMIN. MOTION TO FILE UNDER SEAL