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

Filing 1518

Apple's Objections to Samsung's Proposed Cross Examination Exhibits and Materials for Phil Schiller, Peter Bressler and Susan Kare; Apple's Responses to Samsung's Objections to Cross Examination Exhibits and Material for Justin Denison Apples Objections To Samsungs Proposed Cross Examination Exhibits And Materials For Phil Schiller, Peter Bressler, And Susan Kare by Apple Inc.. (Jacobs, Michael) (Filed on 7/31/2012) Modified on 8/1/2012 (srm, COURT STAFF).

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HAROLD J. MCELHINNY (CA SBN 66781)
[e-mail]
MICHAEL A. JACOBS (CA SBN 111664)
[e-mail]
RACHEL KREVANS (CA SBN 116421)
[e-mail]
JENNIFER LEE TAYLOR (CA SBN 161368)
[e-mail]
ALISON M. TUCHER (CA SBN 171363)
[e-mail]
RICHARD S.J. HUNG (CA SBN 197425)
[e-mail]
JASON R. BARTLETT (CA SBN 214530)
[e-mail]
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: [phone]
Facsimile: [phone]

WILLIAM F. LEE
[e-mail]
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
Telephone: [phone]
Facsimile: [phone]
MARK D. SELWYN (SBN 244180)
[e-mail]
WILMER CUTLER PICKERING
HALE AND DORR LLP
950 Page Mill Road
Palo Alto, California 94304
Telephone: [phone]
Facsimile: [phone]

Attorneys for Plaintiff and
Counterclaim-Defendant APPLE INC

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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APPLE INC., a California corporation,

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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
SAMSUNG’S PROPOSED CROSS
EXAMINATION EXHIBITS AND
MATERIALS FOR PHIL SCHILLER,
PETER BRESSLER, AND SUSAN KARE
APPLE’S RESPONSES TO SAMSUNG’S
OBJECTIONS TO CROSS
EXAMINATION EXHIBITS AND
MATERIALS FOR JUSTIN DENISON

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Defendants.
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Trial:
Time:
Place:
JUDGE:

July 31, 2012
9:00 a.m.
Courtroom 8, 4th Floor
HON. LUCY H. KOH

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APPLE’S OBJECTIONS TO SAMSUNG’S PROPOSED CROSS EXAMINATION EXHIBITS
CASE NO. 11-CV-01846-LHK
sf-3176740

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Samsung’s proposed exhibits and materials for the cross examinations of Phil Schiller,

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Peter Bressler, and Susan Kare include a variety of inadmissible documents. These include

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materials that directly contradict rulings by this Court and Judge Grewal or which Samsung

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reasonably could have anticipated relying upon (and therefore included) on its list of 200 exhibits.

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Apple specifically objects to the Samsung’s use or attempted admissions of such materials on

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these bases, and further identifies additional objections for specific materials below.1

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Exhibit/
Demons.
Schiller Cross Examination Exhibits

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SDX001-3

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Schiller Depo.

Apple’s Objections

The demonstratives Samsung intends to use in its cross examination of
Mr. Schiller should be excluded for two reasons. The photographs are
misleading as the ear piece on the phone is barely visible against the white
backdrop. The label “Samsung Galaxy S” is misleading as there is no single
Galaxy S phone.
Mr. Schiller’s former testimony is inadmissible hearsay under Rule 804(b)
because he is available to testify at trial.
This evidence is hearsay under Rule 804(b) because all three witnesses reside
within the District and are available.

S. Ng,
G. Joswiak &
F. Rothkopf
Depos.
Kare Cross Examination Exhibits
Kare Depo.
Ms. Kare’s former testimony is inadmissible hearsay under Rule 804(b)
because she is available to testify at trial.
F. Anzures & The deposition of Freddy Anzures is hearsay under Rule 804(b) as he resides in
I. Chaudhri
this District.2 In disclosing the depositions of Freddy Anzures and Imran
Depo.
Chaudhri as possible examination exhibits, Samsung did not designate the
portions of their testimony for potential admission. Apple reserves its right to
object to specific portions of Mr. Anzures and Mr. Chaudhri’s deposition.
Bressler Cross Examination Exhibits
DX511
Samsung has no evidence or expert testimony to establish that this exhibit is a
primary or secondary reference. On appeal from this Court’s preliminary
[JP’638]
injunction ruling, the Federal Circuit explained that it was improper to ignore
the “arched, convex front of the ’638 reference,” as depicted in its side profile,
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After the parties meet and conferred, Samsung agreed to withdraw its objections to
JX1086, JX1089, JX1091, DX501, DX526, DX538, DX558, DX562, DX623, DX624, DX678,
DX729, DX730, DX736, DX752, Lucente Expert Report and Exhibits A-D; Lucente Rebuttal
Report and Exhibits A-D, Apple’s Response to Samsung’s Interrogatory No. 1.
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The parties have agreed that Mr. Chaudri’s testimony may be by deposition instead of
live testimony due to his unavailability.

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APPLE’S OBJECTIONS TO SAMSUNG’S PROPOSED CROSS EXAMINATION EXHIBITS
CASE NO. 11-CV-01846-LHK
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Exhibit/
Demons.

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DX628

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[Home button
application]

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DX727,
DX728
[KR’547,
JPD’383]
DX740

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[035 photos]
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DX741

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[035 model]
DX743
[App.
29/382,846]

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JX1040
[D’889]

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JX1074
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[Compaq
TC1000]
JX1093

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[LG Prada]

Apple’s Objections
in making this comparison. Apple Inc. v. Samsung Elecs. Co., 678 F.3d 1314,
1326 (Fed. Cir. 2012). In light of the Federal Circuit’s decision, this exhibit
should be excluded as misleading and confusing.
The Court has already struck this reference from Samsung’s opening as
untimely disclosed. (Dkt. No. 1510.) Samsung’s theories based on this Apple
trademark application were not timely disclosed in discovery. In fact, this
document itself was not timely disclosed in discovery. These theories were
disclosed in neither Samsung’s interrogatory responses nor its expert reports.
This evidence is also irrelevant under Rule 402 and 403.
Samsung has offered no evidence or expert testimony to establish that any of
these exhibits is a primary or secondary reference.

Judge Grewal struck Samsung’s theories based on this prototype because they
were not timely disclosed during discovery. (Dkt. No. 1144.) As the Court has
previously ruled, it would be improper for the jury to consider this evidence as
limiting the scope of the D’889 design. (Dkt. No. 1170 at 6.) Should the Court
nevertheless admit this exhibit, limiting instructions are required under Rule
105 that the 035 prototype cannot be considered prior art to the D’677 patent.
Apple objects to these photographs under Rule 1002.
With the exception of its objection under Rule 1002, Apple repeats its
objections to DX0740 to DX0741.
Samsung’s attempt to introduce this evidence is contrary to three rulings.This
Court’s ruling on Apple’s motion in limine #2 excluded Apple non-prior art
patents such as this one. (Dkt No. 1267 at 3.) Invalidity contentions based on
this reference were struck by Judge Grewal (Dkt. No. 1144.) This Court struck
the expert report of Nicolas Godici, the only place Samsung had disclosed this
evidence. (Dkt. No. 1157 at 5-6.)
In granting Apple’s motion to strike certain of Samsung’s expert opinions due
to untimely raised theories (Dkt. No. 1144), Judge Grewal struck
Mr. Sherman’s attempt to rely on the D’889 patent as alleged prior art to the
D’677 patent. A limiting instruction pursuant to Rule 105 thus is required that
the D’889 patent cannot be considered prior art to the D’677 patent.
JX1074 should be excluded as irrelevant because it is not a proper secondary
reference. Samsung will not be able to authenticate JX1074. Samsung also
failed to produce JX1074 during discovery. If the Court does admit JX1074
into evidence, it should be accompanied by a limiting instruction that it can be
considered an alternative design.
JX1093 is not prior art. Samsung cannot establish that it is prior art and
Samsung will not be able to authenticate JX1093. JX1093 is inadmissible under
Rules 402 and 403 as non-prior art. Samsung’s expert’s opinions of Mr.
Lucente have been struck. Moreover, certain of Samsung’s theories based on
JX 1093 were not timely disclosed during discovery. Samsung also will not be

APPLE’S OBJECTIONS TO SAMSUNG’S PROPOSED CROSS EXAMINATION EXHIBITS
CASE NO. 11-CV-01846-LHK
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Exhibit/
Demons.

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P. Bressler
ITC-796
Hearing
Testimony &
Prior Depos.
P. Bressler
Expert Reports
& Exhibits
C. Stringer
ITC-796 Direct
Witness Stmt.
& Prior Depos.
Q. Hoellwarth
Depo.

Apple’s Objections
able to authenticate JX1093. If the Court does admit JX1093 into evidence, it
should be accompanied by a limiting instruction that it is not prior art to the
D’035 patent.
Mr. Bressler’s former testimony is inadmissible hearsay under Rule 804(b)
because he is available to testify at trial.

Samsung has listed Mr. Bressler’s entire expert report, rebuttal report, and
exhibits to both but has not indicated the specific portions they will use. Apple
objects to this lack of specificity.
This evidence is hearsay under Rules 801 and 802, as Mr. Stringer is available
to testify at trial.

This evidence is hearsay under Rules 801 and 802, as he works in this District.

The cross demonstratives are misleading. Many pages are misleading as they
Bressler
Demonstratives contain pictures of accused devices turned on to distract the jury from the
design at issue. Moreover, many pages contain graphics that obscure portions
of the accused devices thereby preventing the jury from appreciating the overall
impression of the accused designs. The pages are also objectionable to the
extent they are not to scale or are scaled in a misleading way. The
demonstratives are also objectionable to the extent they show only partial views
of the designs at issue. Page 7 contains an alleged non-infringement argument
that has been stricken by Judge Grewal as an untimely raised theory (Dkt. No.
1144). Page 8 contains a purported three-way comparison but such comparison
is improper because Samsung has not proven that the LG Prada is prior art.
(Dkt. No. 1144) Page 9 contains an alleged non-infringement argument that
has been stricken by Judge Grewal as an untimely raised theory (Dkt. No.
1144). Pages 9 and 10 include graphics purporting to show a non-infringement
argument that is incorrect under the law (that logos are irrelevant).

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APPLE’S OBJECTIONS TO SAMSUNG’S PROPOSED CROSS EXAMINATION EXHIBITS
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Exhibit/
Demons.
PX44, PX54,
PX58

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[“Relative
Evaluation
Report on S1,
iPhone,”
“Lessons from
Apple” (BCG),
Denison email
re: request to
STA]

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W. Kho Depo.

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PX60
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[“STA
Competitive
Situation
Paradigm
Shift”]
Ex. 225 to
30(b)(6)
Deposition

Prior Denison
Testimony

Apple’s Responses to Samsung’s Objections to Denison’s Cross Exhibits
The Court already has overruled Samsung’s objections to these exhibits when
designated by Apple for Mr. Denison’s direct examination. (Dkt. No. 1512.)
Undeterred by the Court’s adverse ruling, Samsung attempts to lodge new new
objections to Apple’s use of these exhibits with Mr. Denison for the first time
after this Court’s ruling. These new objections are untimely and waived.
Samsung did not raise this objection to these documents either with Apple’s
opening statement or its objections to the Court filed (and resolved) yesterday.
The objection also is without merit. Samsung has long known of Apple’s
contentions of willful copying (which were disclosed as far back as the
preliminary injunction phase). Apple timely raised Samsung’s “continued . . .
development, manufacture, importation, distribution, and sale of electronic
devices as to which there was no objectively reasonable theory of noninfringement” in response to Samsung’s interrogatory no. 7 -- which did not ask
for the identification of specific supporting documentation. Moreover, these
are Samsung’s own documents, so it cannot claim surprise. (PX44, in any
event, was identified in Apple’s supplemental responses at the close of
discovery.) Finally, and regardless, these documents are independently
admissible to support Apple’s infringement claims and to demonstrate copying,
which is a factor in multiple claims and defenses (e.g., non-obviousness).
Apple will lay a proper foundation for these exhibits.
The Court already has overruled Samsung’s objections to this testimony. (Dkt.
No. 1512.)
Samsung’s objection that this document was not identified in Apple’s
contention interrogatories fails. Samsung did not produce document until aover
month after fact discovery closed, and it has long known of Apple’s contentions
of willful copying (which were disclosed as far back as the preliminary
injunction phase).

Apple does not intend to use this exhibit affirmatively with Mr. Denison, but
added this exhibit in the event he needs to refresh his recollection regarding the
Samsung employees he spoke with to prepare for his 30(b)(6) deposition.
Thus, because Apple is not offering this document for the truth of the matter
asserted, it is not hearsay.
Apple is not seeking to introduce Mr. Denison’s prior testimony into evidence
as an exhibit. Rather, Apple listed this prior testimony solely as potential
impeachment material, and thus these materials did not need to be disclosed on
Apple’s exhibit list. Apple will properly use these materials as impeachment
evidence.
Samsung has taken the position that confidential business information from the
ITC-796 investigation may be used in this case. Samsung has disclosed several
documents from the ITC-796 investigation that it intends to use on the cross of

APPLE’S OBJECTIONS TO SAMSUNG’S PROPOSED CROSS EXAMINATION EXHIBITS
CASE NO. 11-CV-01846-LHK
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Mr. Bressler. Samsung is taking an inconsistent position by objecting to the use
of these ITC-796 materials by Apple. In any event, in light of Samsung’s
objection that some of the prior Denison testimony listed as potential
impeachment material is Samsung confidential and subject to a protective
order, Apple has now identified prior testimony from Mr. Denison in the ITC794 matter that is not subject to a protective order in an attempt to obviate
Samsung’s concern.

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Dated: July 31, 2012

MORRISON & FOERSTER LLP

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By:

/s/ Michael A. Jacobs________
Michael A. Jacobs
Attorneys for Plaintiff
APPLE INC.

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APPLE’S OBJECTIONS TO SAMSUNG’S PROPOSED CROSS EXAMINATION EXHIBITS
CASE NO. 11-CV-01846-LHK
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