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

Filing 1512

ORDER re 1468 Samsung's Objections to Apple's Proposed Examination Exhibits and Materials for Second Day of Trial. Signed by Judge Lucy H. Koh on 7/30/12. (lhklc3, COURT STAFF) (Filed on 7/30/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
For the Northern District of California

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APPLE, INC., a California corporation,

)
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Plaintiff,
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v.
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SAMSUNG ELECTRONICS CO., LTD., A
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Korean corporation; SAMSUNG
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ELECTRONICS AMERICA, INC., a New York )
corporation; SAMSUNG
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TELECOMMUNICATIONS AMERICA, LLC, )
a Delaware limited liability company,
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Defendants.
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)

Case No.: 11-CV-01846-LHK
ORDER ON SAMSUNG’S
OBJECTIONS TO APPLE’S PROPOSED
EXAMINATION EXHIBITS AND
MATERIALS FOR SECOND DAY OF
TRIAL
(re: dkt. #1468)

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Samsung has filed objections to the exhibits and demonstratives to be used during Apple’s

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direct examinations of (1) Peter Bressler; (2) Susan Kare; (3) Phil Schiller; and (4) Justin Denison.

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See ECF No. 1468. Samsung has also filed objections to the deposition testimony Apple intends to

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play of (5) Wookyun Kho; (6) Jaegwan Shin; and (7) Qi Ling. See id. Apple has filed a response.

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See ECF No. 1462. After reviewing the parties’ briefing, considering the record in this case, and

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balancing the considerations set forth in Federal Rule of Evidence 403 (“FRE 403”), the Court

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rules on Samsung’s objections as follows:

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1. Objections Re: Peter Bressler
WITNESS
COURT’S RULING ON OBJECTION
AND
EXHIBIT NO.
Bressler: PX3, Overruled. Rule 1006 provides: “The contents of voluminous writings,

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

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PX4, PDX6166

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United States District Court
For the Northern District of California

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Bressler: PX5,
PX6

recordings, or photographs which cannot conveniently be examined in court may
be presented in the form of a chart, summary, or calculation.” “A proponent of
summary evidence must establish that the underlying materials upon which the
summary is based (1) are admissible in evidence and (2) were made available to
the opposing party for inspection.” United States v. Rizk, 660 F.3d 1125, 1130
(9th Cir. 2011) (citing Amarel v. Connell, 102 F.3d 1494, 1516 (9th Cir. 1996)).
“These materials must be admissible, but need not themselves be admitted into
evidence.” Id. (citing United States v. Meyers, 847 F.2d 1408, 1412 (9th Cir.
1988)). “The availability requirement ensures that the opposing party has ‘an
opportunity to verify the reliability and accuracy of the summary prior to trial.’”
Id. (quoting Paddack v. Dave Christensen, Inc., 745 F.2d 1254, 1261 (9th Cir.
1984)). PX3 and PX4 depict compilations of images of Samsung phones and
tablets and images of the iPhone and iPad. Samsung does not dispute that the
underlying materials are admissible or that they were made available to Samsung
for inspection, as they are images of Samsung’s own products. The evidence is
not outside the scope of Bressler’s report, which opined on similar exhibits, and
is not unfairly prejudicial under FRE 403. Samsung is free to argue that the
compilations are incomplete or misleading on rebuttal and cross. To the extent
the demonstratives are substantively identical to PX3 and PX4, Samsung’s
objections to the demonstratives are also overruled.
Overruled. The Court has previously ruled that media articles are relevant at
least to issues of infringement, consumer confusion, willfulness, and secondary
considerations of non-obviousness. PX5 and PX6 are compilations of such
summarized media articles. Samsung does not dispute that the underlying
materials are admissible or that they were made available to Samsung for
inspection. Thus, these summaries are admissible under FRE 402 and 1006.
These exhibits are not offered for the truth of the matter asserted and therefore
are not hearsay. These exhibits are not unfairly prejudicial under FRE 403.

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2. Objections Re: Susan Kare
WITNESS
COURT’S RULING ON OBJECTION
AND
EXHIBIT NO.
Kare: PX7,
Overruled. PX7 is a compilation of images of Samsung’s accused devices.
PX21, PX22,
PX21 is a compilation of images of the applications screen on each of Samsung’s
and PX161
accused devices. PX22 is a compilation of images of user interface alternative
designs. PX161 is a compilation of user interface designs. These exhibits are
relevant at least to Apple’s design patent and trade dress claims and are
admissible, provided Kare lays a proper foundation. Samsung does not argue
that it was denied an opportunity to inspect the underlying materials, which in
any event are Samsung’s own products. Consistent with the Court’s previous
ruling denying Samsung’s motion in limine #7 (ECF No. 1267 at 5), Apple may
use images of the accused products rather than rely exclusively on actual devices,
because the jury will have the physical products to consider and compare during
trial and deliberations. The evidence is not unfairly prejudicial under FRE 403,
and Samsung is free to argue that the compilations are incomplete or misleading
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Case No.: 11-CV-01846-LHK
ORDER ON SAMSUNG’S OBJECTIONS TO APPLE’S PROPOSED EXAMINATION EXHIBITS AND
MATERIALS FOR SECOND DAY OF TRIAL

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Kare: PX35,
PX41, PX44,
PX55, PX178,
PX179

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Kare: PX49-54

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United States District Court
For the Northern District of California

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Kare: PDX56

on rebuttal and cross.
Overruled. These are all internal Samsung documents and are admissible as
party admissions under FRE 801(d)(2), not hearsay. These exhibits are relevant
at least to Apple’s trade dress claims and are admissible, provided Kare lays a
proper foundation. The Court has already denied Samsung’s Daubert motion to
exclude Kare’s testimony, see ECF No. 1157 at 15, and thus finds that she is
competent to opine on icon and UI graphic design as discussed in these exhibits.
Overruled in part, Sustained in part. PX49 and PX53 are internal Samsung
documents and are admissible as party admissions under FRE 801(d)(2), not
hearsay. PX51 and PX52 are Apple’s own documents. PX54 is the BCG
consulting report commissioned by Samsung. With the exception of PX50,
which is a Best Buy circular, all of the aforementioned exhibits are relevant at
least to Apple’s trade dress claims, which are topics on which Kare is competent
to opine. See ECF No. 1157 at 15. However, PX50 is a Best Buy circular whose
minimal probative value is outweighed by risk of confusion of issues and waste
of time and is therefore excluded under FRE 403.
Reserved. The Court defers ruling until it can review the demonstrative.
Samsung must file this demonstrative by 8:00 a.m. on July 31, 2012.

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3. Objections Re: Phil Schiller
WITNESS
COURT’S RULING ON OBJECTION
AND
EXHIBIT NO.
Schiller:
Overruled. Apple identifies the source of the information in its response to
PDX10
Samsung’s objection.
Schiller: PX
Overruled in part, sustained in part. Although there is some overlap between
11, 126-132
Exhibit 11 and other exhibits, not all of the print advertisements in Exhibit 11
overlap with the print advertisements in Exhibits 126-132. Accordingly,
Samsung’s objection on the ground that exhibit 11 is cumulative is overruled.
Exhibits 126-128. Exhibit 126 is excluded. The advertisement does not show
the product until the very end of the advertisement, thus, the advertisement is
only weak evidence of fame. The relatively weak probative value is outweighed
by undue consumption of time pursuant to FRE 403. Exhibit 126 is excluded.
Exhibits 127-128. These advertisements feature the products at issue in the
advertisements. The advertisements are relevant to show fame for trade dress.
Additionally, the advertisements feature the intellectual property rights at issue in
this case. Thus, the relevance is not outweighed by potential prejudice.
Objections to Exhibits 127-128 are overruled.
Exhibits 129-132. These exhibits show print ads of the iPhone and the iPad, and
are admissible to establish fame and secondary meaning. Although the
advertisements are marked as “Apple Media Arts Lab,” Exhibit 11 suggests that
these advertisements were published. The copy on the advertisements are not
hearsay because the statements are not being offered to prove the truth of the
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Case No.: 11-CV-01846-LHK
ORDER ON SAMSUNG’S OBJECTIONS TO APPLE’S PROPOSED EXAMINATION EXHIBITS AND
MATERIALS FOR SECOND DAY OF TRIAL

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matter asserted. Objections to Exhibits 129-132 are overruled.
Schiller: PX12- Overruled. Exhibits 12-14 are compilations which show iPad advertisements,
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iPhone advertisements, and television programs in which the products have been
shown. Under FRE 1006, as long as the underlying materials are admissible, and
were made available to the opposing party for inspection, the summary is also
admissible. Samsung challenges the exhibits based on hearsay, but the
advertisements and television programs are not being offered to prove the truth
of the matter asserted, but rather are offered to establish fame, an element of the
trade dress claim. Samsung does not allege that the underlying exhibits were not
made available; accordingly, Samsung’s objection is overruled.

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United States District Court
For the Northern District of California

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Schiller: PDX7

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Schiller:
PDX13
Schiller: PX 16

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Schiller: PX33

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Schiller: PX
133-135, 138,
140-141. PDX
1-3, 5

Exhibit 17 is a series of summarized newspaper articles. Samsung challenges the
underlying exhibits claiming that they are inadmissible hearsay. However, like
Exhibits 12-14, these exhibits are not being offered to prove the truth of the
matter asserted, but rather are being used to establish fame. Accordingly,
Samsung’s objection is overruled.
Reserved. Samsung objects to the demonstrative based on FRE 403. The Court
defers ruling until it can review the demonstrative. Samsung must file these
demonstratives by 8:00 a.m.
Reserved. Samsung objects to this demonstrative for failure to timely disclose
and under FRE 403. The Court defers ruling until it can review the
demonstrative. Samsung must file these demonstratives by 8:00 a.m.
Overruled. Samsung objects that the exhibit is misleading and confusing because
it depicts only one iPhone product. Samsung has not clearly articulated why this
is misleading or cited to any authority that requires trade dress advertising
expenditures to be tied to a specific iPhone or iPad release. Moreover, it appears
that the information is derived from PX 33, which bears a bates stamp and was
disclosed in discovery.
Overruled. PX33 bears a bates stamp which identifies the source as an Apple
document. The document is not unduly confusing or misleading. Samsung has
not cited to any authority that requires trade dress advertising expenditures to be
tied to a specific iPhone or iPad release.
Overruled. These exhibits are not hearsay because they are not being offered to
prove the truth of the statements contained in the news articles. These exhibits
are being offered to show fame. Each news article also either features a
photograph of the product and/or describes the product. Therefore, Apple has
established a sufficient nexus between the news article and the IP rights at issue.

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4. Objections Re: Justin Denison
WITNESS
COURT’S RULING ON OBJECTION
AND
EXHIBIT NO.
Denison: PX44 Overruled. PX44 is not hearsay because it is a party admission under FRE
801(d)(2)(D). FRE 613(b) is inapplicable. Samsung may renew its objection if
Apple fails to lay a proper foundation.
Denison: PX54 Overruled. The document was produced by BCG at Samsung’s request and is
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Case No.: 11-CV-01846-LHK
ORDER ON SAMSUNG’S OBJECTIONS TO APPLE’S PROPOSED EXAMINATION EXHIBITS AND
MATERIALS FOR SECOND DAY OF TRIAL

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Denison:
PX62, PX58

relevant at least to issues of willfulness and damages. The document is not
offered for the truth of the matter asserted and therefore is not hearsay. FRE
613(b) is inapplicable. The probative value is not outweighed by the risk of
confusing the issues or wasting time under FRE 403.
Overruled. Both PX58 and PX62 are internal Samsung documents and are party
admissions under FRE 801(d)(2)(D), not hearsay. The documents are relevant at
least to issues of willfulness and damages, and their probative value is not
outweighed by the risk of confusing the issues or wasting time under FRE 403.

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United States District Court
For the Northern District of California

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5. Objections Re: Wookyun Kho
WITNESS
COURT’S RULING ON OBJECTION
Depo
Overruled. First, the Court will not rule on any objections that Samsung attempts
Testimony
to incorporate by reference from other documents. Second, Samsung’s objection
from Wookyun based on lack of foundation is overruled because the testimony explains he
Kho
studied Apple devices in designing the bounce feature. This is sufficient
foundation. Finally, Samsung’s references to FRE 611 and 613 are inapplicable.
FRE 611(a)(3) allows the court to exercise control to protect witnesses from
harassment or undue embarrassment. FRE 613 relates to a witness’s prior
statements, and establishes that a party need not show or disclose a witness’s
prior statements when conducting examination and states that extrinsic evidence
is admissible only if the witness is given an opportunity to explain or deny the
statement and an adverse party is given an opportunity to examine the witness.
Samsung has not established that either rule yet applies here.

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6. Objections Re: Jaegwan Shin
WITNESS
COURT’S RULING ON OBJECTION
Depo
Sustained. Samsung objects to the use of depo testimony of Jaegwan Shin during
Testimony of
Denison’s testimony at trial. Rule 32 applies to the use of depositions at trial.
Jaegwan Shin
FRCP 32 permits the use of deposition testimony against a party if: (1) the party
was present or represented at the taking of the deposition or had reasonable
notice of it; (2) it was used in compliance with the Federal Rules of Evidence;
and (3) the use is allowed by Rule 32(a)(2) through (8). Although Apple argues
that the evidence is admissible under FRE 802(d)(2)(D), Apple does not address
whether the deposition testimony may be used under Rule 32. Indeed, although
the first 2 requirements under Rule 32(a) are not in dispute, Apple has not
established that one of the exceptions to Rule 32(a)(2) through (8) applies. The
deposition testimony of Mr. Shin may not be used to impeach Mr. Denison. See
FRE 32(a)(2) (deposition testimony “given by the deponent as a witness” may be
used to impeach that witness.”). It does not appear that Mr. Shin is an “officer,
director, managing agent, or [30(b)(6) or 31(a)(4)] designee.” Although Mr.
Shin’s title is a “director” Apple has not laid any further foundation to establish
that he otherwise fits the definition set forth in Rule 32(a)(3). See Hynix
Semiconductor Inc. v. Rambus Inc., No. C–06–00244 RMW, 2008 U.S. Dist.
LEXIS 11767, at *18–19, 2008 WL 2581632 (N.D. Cal. Feb. 2, 2008) (“These
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Case No.: 11-CV-01846-LHK
ORDER ON SAMSUNG’S OBJECTIONS TO APPLE’S PROPOSED EXAMINATION EXHIBITS AND
MATERIALS FOR SECOND DAY OF TRIAL

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other people all have the capability to bind the corporation with their actions,
indeed, a 30(b)(6) or 31(a)(4) designee literally speaks for the corporation.” Id.
Thus, a “‘managing agent’ must have some authority[, similar to an officer or
director,] to act on behalf of the corporation or answer for it.”). Similarly, Apple
has not established that the deponents are unavailable under FRCP 32(a)(4), or,
that the other subdivisions of FRCP 32(a) apply. Accordingly, Samsung’s
objection is sustained.

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7. Objections Re: Qi Ling
WITNESS
COURT’S RULING ON OBJECTION
Depo
Sustained. The same rationale for exclusion of the deposition testimony of Mr.
Testimony of
Shin applies equally to Mr. Ling. Mr. Ling’s deposition testimony is not
Qi Ling
admissible under FRCP 32(a). Mr. Ling is not unavailable, nor does it appear
that he is a “party, agent, or designee” under FRCP 32(a)(3)-(4).

United States District Court
For the Northern District of California

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IT IS SO ORDERED.

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Dated: July 30, 2012

_________________________________
LUCY H. KOH
United States District Judge

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