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

Filing 1503

Declaration of GREGORY JOSWIAK in Support of 1499 Administrative Motion to File Under Seal APPLES MOTION TO SEAL PRIOR MOTIONS AND EXHIBITS THERETO filed byApple Inc.. (Related document(s) 1499 ) (Jacobs, Michael) (Filed on 7/30/2012)

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1 2 3 4 5 6 7 8 9 10 HAROLD J. MCELHINNY (CA SBN 66781) MICHAEL A. JACOBS (CA SBN 111664) RACHEL KREVANS (CA SBN 116421) JENNIFER LEE TAYLOR (CA SBN 161368) ALISON M. TUCHER (CA SBN 171363) RICHARD S.J. HUNG (CA SBN 197425) JASON R. BARTLETT (CA SBN 214530) MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: (415) 268-7000 Facsimile: (415) 268-7522 WILLIAM F. LEE 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) WILMER CUTLER PICKERING HALE AND DORR LLP 950 Page Mill Road Palo Alto, California 94304 Telephone: (650) 858-6000 Facsimile: (650) 858-6100 11 12 13 Attorneys for Plaintiff and Counterclaim-Defendant APPLE INC. 14 UNITED STATES DISTRICT COURT 15 NORTHERN DISTRICT OF CALIFORNIA 16 SAN JOSE DIVISION 17 18 APPLE INC., a California corporation, Plaintiff, 19 20 21 22 23 24 v. SAMSUNG ELECTRONICS CO., LTD., a Korean corporation; SAMSUNG ELECTRONICS AMERICA, INC., a New York corporation; and SAMSUNG TELECOMMUNICATIONS AMERICA, LLC, a Delaware limited liability company, Case No. 11-cv-01846-LHK DECLARATION OF GREGORY JOSWIAK IN SUPPORT OF APPLE’S MOTION TO SEAL PREVIOUSLY FILED MOTIONS AND EXHIBITS THERETO Defendants. 25 26 27 28 DECLARATION OF GREGORY JOSWIAK ISO MOT. TO SEAL PREV. FILED MOTIONS & EXS. THERETO CASE NO. 11-CV-01846-LHK 1 I, Gregory Joswiak, hereby declare as follows: 2 1. I am a Vice President in Apple’s Product Marketing department. I submit this 3 declaration in support of Apple’s motions regarding sealing, filed contemporaneously herewith. I 4 have personal knowledge of the matters set forth below. If called as a witness I could and would 5 competently testify as follows. 6 2. I understand Apple seeks to seal two highly sensitive documents that disclose 7 Apple’s market research and strategy. If disclosed to the public, this information would expose 8 Apple to serious competitive harm. 9 3. The first exhibit, APLNDC-Y0000027256-27303, contains a lengthy excerpt from 10 a quarterly iPhone buyer survey report for the fourth quarter of Apple’s 2010 fiscal year. iPhone 11 buyer survey reports compile and analyze results obtained from the monthly surveys of iPhone 12 buyers that Apple conducts. The excerpt included from this survey reveals, country-by-country, 13 what is driving our customers to buy Apple’s iPhone products versus other products such as the 14 Android products that Samsung sells. This report covers iPhone 4, a phone which Apple still 15 actively markets and sells today. We consider the report to be current and it contains information 16 of which we make active use. 17 4. The second exhibit, APLNDC-Y0000023361-23393 is a lengthy excerpt from an 18 August 2010 iPad buyer survey. The iPad buyer survey is very similar in nature to the iPhone 19 buyer surveys described above. It reports on and analyzes results obtained from surveys of iPad 20 buyers that Apple conducted in 2010. The filed excerpt discusses what is driving our customers’ 21 decisions to purchase iPad, and provides detailed information on the features and attributes they 22 use. We still consider this information to be current and make use of it in our marketing and 23 product decisions. When iPad was first released in April 2010, there was no other product of its 24 kind. Obtaining information from August 2010 would be very valuable to companies who are 25 trying to put forward competing products 26 5. No competitor has access to our customer base to conduct the type of in-depth 27 analysis contained in our quarterly iPhone buyer surveys and the iPad buyer survey. Getting 28 access to this analysis would be of enormous benefit to our competitors. Today, a competitor DECLARATION OF GREGORY JOSWIAK ISO MOT. TO SEAL PREV. FILED MOTIONS & EXS. THERETO CASE NO. 11-CV-01846-LHK sf-3176937 1 1 who is trying to take away Apple market share can only speculate as to the importance that 2 Apple’s customers place, for instance, on FaceTime video calling, battery life, or Siri voice 3 capability. They have to guess as to what demographics – age, gender, occupation – are most 4 satisfied with Apple’s products. Certainly, they do not know how the preferences of customers 5 in, for example, Japan differ from those in Australia, Korea, France or the United States. All of 6 that information is set out in exacting detail in the proposed exhibits. No other entity could 7 replicate this research because no other entity has access to the customer base that Apple has. . 8 9 6. Also important are the conclusions Apple has drawn from the data. Knowing about Apple’s customer base preferences is extremely useful to a competitor, but knowing about 10 what Apple thinks about its customer base preferences is even more valuable. If Apple had 11 access to this kind of in-depth analysis of our competitors, we could infer what product features 12 our competitors are likely to offer next, when, and in what markets. Our probability of success in 13 predicting our competitors’ next move next would improve dramatically. Having that level of 14 insight and confidence in our competitors’ next moves would allow us to target our efforts to 15 prepare products and marketing counterstrategies in the short term, and target our long-term 16 product plans to stay far ahead of the competition. Given unfettered access to Apple’s recent 17 internal market research, I have no doubt that Apple’s competitors would use it as described 18 above, resulting in serious competitive harm to Apple. 19 7. Because of the extreme sensitivity of this product research information, 20 distribution of the iPhone buyer surveys and iPad buyer surveys and tracking studies is very 21 tightly controlled within Apple. The documents are stamped as confidential on a “need to know” 22 basis. Consistent with this designation, no internally conducted surveys of Apple customers are 23 allowed to circulate outside a small, select group of Apple executives. No iPhone-related surveys 24 or iPad-related surveys are allowed to be distributed to anyone outside this group without my 25 personal express permission, which I regularly refuse. When I do approve further distribution, it 26 is almost always on a survey question-by-survey question basis, and even then distribution is 27 limited to individuals who have a demonstrated need to know. 28 DECLARATION OF GREGORY JOSWIAK ISO MOT. TO SEAL PREV. FILED MOTIONS & EXS. THERETO CASE NO. 11-CV-01846-LHK sf-3176937 2 1 8. I wish to add that Apple is not seeking to seal all of its marketing research 2 documents in this action. In particular, Apple has made the difficult decision not to seek sealing 3 of certain marketing research reports that report survey results on iPhone or iPad that were not 4 limited to Apple’s customer base. Some of these reports were created by third party ComTech. 5 Others were created by Apple’s internal marketing research department. Apple has expended 6 significant effort and expense gathering the information in these different reports and surveys, 7 and internally treats these documents on a strictly confidential basis as well. However, I 8 understand that the Court wants the parties to restrict their requests to seal to only their most 9 sensitive confidential information. We view the iPhone buyer surveys and iPad tracking studies, 10 and similar surveys taken of our Apple customer database, which cannot be replicated by 11 competitors, as the crown jewels of the marketing research group. 12 13 I declare under penalty of perjury that the foregoing is true and correct. Executed this 30th day of July, 2012 at Cupertino, California. 14 15 /s/ Gregory Joswiak Gregory Joswiak 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF GREGORY JOSWIAK ISO MOT. TO SEAL PREV. FILED MOTIONS & EXS. THERETO CASE NO. 11-CV-01846-LHK sf-3176937 3 1 2 ATTESTATION OF E-FILED SIGNATURE I, Michael A. Jacobs, am the ECF User whose ID and password are being used to file this 3 Declaration. In compliance with General Order 45, X.B., I hereby attest that Gregory Joswiak 4 has concurred in this filing. 5 Dated: July 30, 2012 6 /s/ Michael A. Jacobs Michael A. Jacobs 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF GREGORY JOSWIAK ISO MOT. TO SEAL PREV. FILED MOTIONS & EXS. THERETO CASE NO. 11-CV-01846-LHK sf-3176937 4

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