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

Filing 1563

ORDER re 1542 Samsung's [Corrected] Objections to Apple's Forstall, Bressler, Kare, Schiller and Denison Exhibits; and re 1543 Apple's Objections to Samsung's Denison and Schiller Exhibits. Signed by Judge Lucy H. Koh on 8/2/12. (lhklc3S, COURT STAFF) (Filed on 8/2/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the 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,
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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 (1) SAMSUNG’S
[CORRECTED] OBJECTIONS
REGARDING FORSTALL EXHIBITS,
AND AMENDED EXHIBIT
DISCLOSURES FOR BRESSLER,
KARE, SCHILLER AND DENISON;
AND (2) APPLE’S OBJECTIONS TO
SAMSUNG’S PROPOSED DIRECT
EXAMINATION MATERIALS FOR
DENISON AND SUPPLEMENTAL
OBJECTIONS TO SAMSUNG’S
PROPOSED CROSS EXAMINATION
MATERIALS FOR SCHILLER
(re: dkt. #1542, 1543)

Samsung has filed additional objections to the exhibits and demonstratives to be used
during Apple’s direct examinations of (1) Peter Bressler; (2) Susan Kare; (3) Phil Schiller; (4)
Justin Denison; and (5) Scott Forstall. See ECF No. 1542. Apple has filed objections to the
exhibits and materials to be used during Samsung’s (1) direct examination of Justin Denison, and
(2) cross examination of Phil Schiller. See ECF No. 1543. After reviewing the parties’ briefing,
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Case No.: 11-CV-01846-LHK
ORDER ON OBJECTIONS TO PROPOSED EXAMINATION EXHIBITS AND MATERIALS FOR BRESSLER,
KARE, DENISON, SCHILLER, AND FORSTALL

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considering the record in this case, and balancing the considerations set forth in Federal Rule of

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Evidence 403 (“FRE 403”), the Court rules on the parties’ objections as follows:

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United States District Court
For the Northern District of California

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I.

SAMSUNG’S OBJECTIONS

1. Objections Re: Peter Bressler
WITNESS
COURT’S RULING ON OBJECTION
AND
EXHIBIT NO.
Bressler: PX3
Sustained. FRCP 26(a)(2)(B) requires that an expert’s report contain “the facts
(revised), PX4, or data considered by the witness” in forming the expert’s opinions, as well as
PDX65-66
“any exhibits that will be used to summarize or support” the expert’s opinions.
The devices in PX3, PX4, and PDX65-66 to which Samsung now objects were
either omitted from the Bressler Report or struck from the Bressler Report by
Judge Grewal’s June 27, 2012 Order for being untimely disclosed. See ECF No.
1144 at 7. Accordingly, these exhibits are beyond the scope of Bressler’s
disclosed expert opinion and may not be used during his direct examination.
Apple may submit an amended exhibit that is properly tailored to include only
evidence timely disclosed and within the scope of Bressler’s expert reports.
Bressler: PX5, Sustained. Under FRCP 26(a)(2)(B), Bressler’s expert report was required to
PX6
disclose all the articles on which Bressler will give direct testimony at trial.
Samsung asserts that the Bressler Report did not disclose all the articles quoted in
PX5 and PX6. The Court has only an excerpt of the Bressler Report, which
appears to reference only three of the nine articles in PX5: the eWeek, PC
Magazine, and PCWorld reviews. See ECF No. 935, Ex. 6 (excerpts of Bressler
Report). Likewise, Bressler’s Report appears to reference only three of the 16
articles in PX6: the June 29, 2010, PCWorld review, the Washington Post
review, and the July 15, 2010, Wired review. See ECF No. 935, Ex. 6 (excerpts
of Bressler Report). Accordingly, the exhibits not disclosed in Bressler’s expert
opinion may not be used during his direct examination. The timely disclosed
press reviews are relevant to trade dress and therefore will not be excluded for
lack of relevance. Apple may submit amended exhibits that are properly tailored
to include only evidence timely disclosed and within the scope of Bressler’s
expert reports.
Bressler: PX7, Overruled. The Court has already ruled that Apple is not precluded from using
PX8
images of the accused devices or of Apple’s products. See ECF No. 1455 at 4;
ECF No. 1520 at 2. The actual devices themselves must be made available for
the jury to consider and compare during trial and deliberations, and therefore
Apple’s use of images of the devices does not run afoul of Egyptian Goddess v.
Swisa, 543 F.3d 665 (Fed. Cir. 20008), or the requirement under Contessa v.
Conagra, 282 F.3d 1370, 1381 (Fed. Cir. 2002), that “the ‘ordinary observer’
analysis . . . encompass all ornamental features visible at any time during normal
use of the product.” The Court has already denied Samsung’s motion to exclude
the Galaxy S2 and Galaxy S2 i9100, which were subjects of Samsung’s Motion
in Limine #3. See ECF No. 1267 at 4. The Court has also already denied
Samsung’s motion to exclude evidence related to the Galaxy S i9000 and Galaxy
Ace, as there is a factual dispute as to whether the devices were sold in the U.S.
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Case No.: 11-CV-01846-LHK
ORDER ON OBJECTIONS TO PROPOSED EXAMINATION EXHIBITS AND MATERIALS FOR BRESSLER,
KARE, DENISON, SCHILLER, AND FORSTALL

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Bressler: PX10

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Bressler: PX59

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Bressler:
PX133,
PX141,
PX142,
PX174, PX175
Bressler:
PX135

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Bressler:
PX152,
PX197, PX198

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Bressler:
PX157
Bressler:
PX173

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Bressler:
JX1007,
JX1030
Bressler:
JX1031,
JX1032,
JX1033,
JX1034,
JX1035
Bressler:
JX1078,
PDX15-17
Bressler:
PDX46-60
Bressler:

or not. See ECF No. 1267 at 2. To the extent the Mesmerize slide shows the
wrong phone, Apple shall file a corrected version of that slide by 8:00 a.m. on
August 3, 2012.
Overruled. Title is not improperly argumentative, as exhibit contains images of
commercial alternatives. Ruling on Fidler replica image is reserved until Apple
produces the Fidler replica for inspection.
Overruled. Samsung does not identify the basis for the translation dispute and
therefore provides no basis for sustaining the objection on this ground. Exhibit is
a party admission and not hearsay. Exhibit is relevant at least to damages and is
not unduly prejudicial under FRE 403. Apple must lay a proper foundation.
Sustained. A party may not use untimely disclosed evidence at trial except upon
a showing that “the failure was substantially justified or is harmless.” Fed. R.
Civ. P. 37(c)(1). These exhibits were untimely produced after the close of fact
discovery, and Apple has made no showing of substantial justification or lack of
prejudice. Accordingly, Samsung’s objections to PX133, 141, 142, 174, and 175
are sustained.
Overruled. PX135 was timely produced, is relevant to secondary considerations
of non-obviousness, is not offered for the truth of the matter asserted and
therefore is not hearsay, and is not unfairly prejudicial under FRE 403.
Accordingly, Samsung’s objection to PX135 is overruled.
Sustained. These devices were never produced for inspection during fact
discovery and were not discussed in Bressler’s Report, and are therefore
excludable under FRCP 26(a)(2) and 37(c)(1). Furthermore, these undisclosed
devices are excluded pursuant to Judge Grewal’s June 27, 2012 Order striking
portions of Bressler’s Report that reference undisclosed alternative devices.
Sustained. The Court has already ruled that this exhibit is inadmissible hearsay.
See ECF No. 1522 at 2.
Sustained. FRCP 26(a)(2)(B) requires that an expert’s report contain “the facts
or data considered by the witness” in forming the expert’s opinions, as well as
“any exhibits that will be used to summarize or support” the expert’s opinions.
This exhibit was not considered by Bressler in his expert report and is therefore
beyond the scope of Bressler’s disclosed expert opinion.
Overruled. The Court has already denied Samsung’s motion to exclude evidence
related to the Galaxy S i9000 and Galaxy Ace, as there is a factual dispute as to
whether the devices were sold in the U.S. or not. See ECF No. 1267 at 2.
Overruled. The Court has already denied Samsung’s motion to exclude these
accused devices (Galaxy S2 (AT&T), Galaxy S2 i9100, Galaxy S2 (T-Mobile),
Galaxy S2 Epic 4G Touch, and Galaxy S2 Skyrocket), which were the subject of
Samsung’s Motion in Limine #3. See ECF No. 1267 at 4.

Reserved. Apple must produce the Fidler replica for inspection and make it
available in court.
Overruled. Title is not improperly argumentative, as exhibit contains images of
commercial alternatives.
Overruled, as long as Apple can lay a foundation.
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Case No.: 11-CV-01846-LHK
ORDER ON OBJECTIONS TO PROPOSED EXAMINATION EXHIBITS AND MATERIALS FOR BRESSLER,
KARE, DENISON, SCHILLER, AND FORSTALL

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PDX67
2. Objections Re: Susan Kare
WITNESS
COURT’S RULING ON OBJECTION
AND
EXHIBIT NO.
Kare: PX7
Sustained. The Court previously overruled the objection based on FRE 1006.
Samsung now supplements its objection on the basis that the exhibit depicts 17
devices not considered by Kare or mentioned in her expert reports. FRCP
26(a)(2)(B) requires that an expert’s report contain “the facts or data considered
by the witness” in forming the expert’s opinions, as well as “any exhibits that
will be used to summarize or support” the expert’s opinions. This exhibit depicts
evidence not considered by Kare in her expert reports, and it is therefore beyond
the scope of her disclosed expert opinion. Apple may submit an amended exhibit
that is properly tailored to evidence within the scope of Kare’s expert reports.
Kare: PX41,
Sustained. The Court previously overruled the objection based on various
PX178, PX179 grounds. See ECF No. 1520 at 3. Samsung now objects to these exhibits as not
disclosed in Kare’s expert reports. Because these three exhibits were not
disclosed in Kare’s expert reports, they are beyond the scope of her expert
opinion and may not be used in her direct examination. See FRCP 26(a)(2)(B).
Kare: PX35,
Sustained in part, overruled in part. The Court previously overruled the
PX55
objection based on various grounds. See ECF No. 1520 at 3. Samsung now
objects to these exhibits because they were not timely disclosed in response to
Samsung’s contention Interrogatory No. 7 regarding willfulness. Because these
exhibits were not timely disclosed in response to Interrog. No. 7 regarding
evidence of willfulness, they may not be used for this purpose. However, PX41
and PX55 may be introduced for other purposes, subject to further FRE 403
balancing.
Kare: PX44
Overruled. Samsung does not identify the basis for translation dispute and
therefore provides no basis for sustaining the objection on this ground.
Kare: PX58
Overruled. Apple has withdrawn this exhibit with respect to examination of
Kare. See ECF No. 1548.
Kare: PX160
Overruled. Samsung objects to this exhibit as misleading and confusing because
the user interface does not actually exist but rather is a mock-up of a potential
product. Nothing about the exhibit is inherently misleading, and thus the Court
finds no reason to exclude the exhibit under FRE 403, provided Apple and Kare
do not misrepresent during examination that this is an actual commercial
alternative as opposed to a mock-up.
Kare:
Reserved. The parties have not numbered the pages of the demonstrative to be
PDX14.4,
used with Kare, and therefore the Court reserves ruling until the parties identify
PDX14.8the subject pages. However, the Court is likely to overrule Samsung’s objection
14.10
that these demonstratives are misleading because they contain comparisons
between individual icons under FRE 403 balancing. Samsung must file the pages
to which it objects by 8:00 a.m. on August 3, 2012.
Kare:
Reserved. The parties have not numbered the pages of the demonstrative to be
PDX14.24used with Kare, and therefore the Court reserves ruling until the parties identify
14.27, 14.29the subject pages. However, the Court is likely to overrule Samsung’s objection
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Case No.: 11-CV-01846-LHK
ORDER ON OBJECTIONS TO PROPOSED EXAMINATION EXHIBITS AND MATERIALS FOR BRESSLER,
KARE, DENISON, SCHILLER, AND FORSTALL

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14.33

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Kare:
PDX14.3414.36, 14.37

that these demonstratives are misleading because they only show the GUI of the
iPhone compared to the GUI of the accused Samsung phones under FRE 403
balancing. Samsung must file the pages to which it objects by 8:00 a.m. on
August 3, 2012.
Reserved. The parties have not numbered the pages of the demonstrative to be
used with Kare, and therefore the Court reserves ruling until the parties identify
the subject pages. However, the Court is likely to sustain Samsung’s objection
on the grounds that these pages contain an argument not disclosed in Kare’s
expert reports, and that PDX14.37 contains an excerpt from PX55, which was not
timely disclosed in response to Samsung’s Interrog. No. 7 regarding willfulness.
Samsung must file the pages to which it objects by 8:00 a.m. on August 3, 2012.

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3. Objections Re: Phil Schiller
WITNESS
COURT’S RULING ON OBJECTION
AND
EXHIBIT NO.
Schiller:
Overruled. PX 142 is a news article discussing the PTO’s exhibit on Apple’s
PX142, PDX
designs. PDX 16 is a demonstrative that enlarges the photograph of the exhibit
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which features the iPhone design. The Court previously determined that the
photograph of the exhibit is relevant to Apple’s iPhone design patent and trade
dress claims and is not unduly prejudicial. Neither the exhibit nor the
demonstrative is hearsay because it is not being offered to prove the truth of the
matter asserted. Moreover, neither the demonstrative nor the exhibit is
misleading or cumulative under 403.

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4. Objections Re: Justin Denison
WITNESS
COURT’S RULING ON OBJECTION
AND
EXHIBIT NO.
Denison:
Overruled, for the reasons stated in the Court’s previous Order. See ECF No.
PX44, PX54,
1520 at 5.
PX58
Denison: PX34 Overruled, if Apple can lay a proper foundation.
Denison: PX38 Sustained in part, overruled in part. PX38 was not identified in response to
Samsung’s contention Interrogatory No. 7 regarding willfulness, and therefore
may not be used for this purpose. Apple may use this exhibit for other purposes,
subject to further FRE 403 balancing.
Denison: PX62 Sustained in part, overruled in part. PX62 was not identified in response to
Samsung’s contention Interrogatory No. 7 regarding willfulness, and therefore
may not be used for this purpose. Apple may use this exhibit for other purposes,
subject to further FRE 403 balancing.
Denison: Depo Overruled. The Court previously overruled Samsung’s objection to the use of
testimony of
Wookyun Kho’s deposition testimony. Samsung’s renewed objection does not
Wookyun Kho persuade the Court to revisit this ruling. As a resident of South Korea, Mr. Kho
is unavailable to testify under FRCP 32(a)(4)(B), and therefore Mr. Kho’s
deposition testimony may be used at trial. Moreover, Samsung may not call Mr.
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Case No.: 11-CV-01846-LHK
ORDER ON OBJECTIONS TO PROPOSED EXAMINATION EXHIBITS AND MATERIALS FOR BRESSLER,
KARE, DENISON, SCHILLER, AND FORSTALL

Kho as a witness, as he does not appear on Samsung’s witness list. See ECF
Nos. 1278 and 1293 (striking Appendix A, which included Mr. Kho as a
witness).
Sustained, for the reasons stated in the Court’s previous Order. See ECF No.
1520 at 5.

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Denison: Depo
testimony of
Jaegwan Shin
Denison: Depo Sustained, for the reasons stated in the Court’s previous Order. See ECF No.
testimony of Qi 1520 at 5.
Ling

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5. Objections Re: Scott Forstall
WITNESS
COURT’S RULING ON OBJECTION
AND
EXHIBIT NO.
Forstall:
Sustained. Under FRCP 26(a)(1), in its initial disclosures, Apple was required to
JX1042,
disclose the names “along with the subjects of that information” of individuals
JX1044,
with discoverable information. Under FRCP 26(e), Apple is required to amend
JX1045, PX12, or supplement Rule 26 disclosures “in a timely manner.” The discovery
PX19, PDX17- disclosures provided by Samsung show that Apple only indicated that Forstall
18, PDX20-24 had discoverable information regarding the ’163 Patent in its initial disclosures
and its amendment to its initial disclosures. There was no indication in these
disclosures that Mr. Forstall would have discoverable information on the ’915
Patent, the ’381 Patent, or the D’305 Patent. Apple points to the pre-trial witness
disclosure on July 6, 2012, in which Apple identified Forstall as an intended
witness for the ’915 Patent, and the ’381 Patent. Apple also noted that Forstall
was deposed over several days in this action and the ITC action, but does not
indicate on what topics he was deposed.

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Based on the information before the Court, Apple failed to timely update its Rule
26 disclosures to provide Samsung with notice that Mr. Forstall would testify as
to patents other than the ’163 patent. Under FRCP 37(c), unless the failure was
substantially justified or harmless, Mr. Forstall may not testify on these topics at
trial. Apple’s pretrial disclosure on July 6, 2012 was after the close of expert and
fact discovery and there is no indication that Samsung had the opportunity to
depose Forstall on these topics. Therefore, these exhibits are excluded, and Mr.
Forstall shall not testify regarding the ’915 Patent, the ’381 Patent, or the D’305
Patent.

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II.

APPLE’S OBJECTIONS

1. Objections Re: Justin Denison
WITNESS
COURT’S RULING ON OBJECTION
AND
EXHIBIT NO.
Denison:
Overruled in part, sustained in part. Apple objects that JX-1093, the LG Prada, is
JX1093
not prior art to the D’677 and D’087 Patents, and therefore irrelevant. Apple
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Case No.: 11-CV-01846-LHK
ORDER ON OBJECTIONS TO PROPOSED EXAMINATION EXHIBITS AND MATERIALS FOR BRESSLER,
KARE, DENISON, SCHILLER, AND FORSTALL

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Denison:
DX629

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Denison:
Samsung’s
Opening Slides
41-42
Denison:
Samsung’s
Objs. to
30(b)(6) PI
Depo. Notice
and Letter from
M. Chan to J.
Bartlett
Denison:
SDX3586,
SDX3587,
SDX3584,
SDX3508-09,
SDX3588,
SDX3589

argues that the Prada was released in late 2006 while Stringer has testified that
the patented iPhone design was complete in April 2006. However, the jury may
choose not to credit Stringer’s testimony as to the date he designed the iPhone
face and bezel. Therefore, the Court overrules Apple’s objection with respect to
the D’677 and D’087 Patents. Apple also objects that Judge Grewal struck any
use of the LG Prada as prior art with respect to the D’305 Patent because
Samsung had not timely disclosed the LG Prada as potential D’305 prior art. See
ECF No. 1144 at 4. The LG Prada was disclosed as potential D’677 and D ’087
prior art at the preliminary injunction stage. Accordingly, the Court sustains
Apple’s objection with respect to the D’305 Patent. The Court ORDERS Apple
to submit a proposed limiting instruction in accord with this ruling.
Sustained. The Court previously excluded this exhibit. Samsung argues that it
seeks to play a 30 second clip of a Samsung advertisement that it argues is
relevant to its non-willful intent and to rebut allegations of dilution. However,
Samsung has not identified which clip it intends to show, nor does it articulate
how the clip is likely to be relevant to these issues. Accordingly, Apple’s
objection is sustained.
Sustained. These slides were not on Samsung’s exhibit list, and are not
admissible. Furthermore, Denison lacks personal knowledge of Apple’s internal
competitive documents.
Sustained for lack of relevance.

Reserved. The parties have not provided these demonstratives to the Court.
Accordingly, the Court defers ruling on Apple’s objections. Apple must submit
these demonstratives to the Court by 8:00 a.m. on August 3, 2012.

2. Objections Re: Phil Schiller
WITNESS
COURT’S RULING ON OBJECTION
AND
EXHIBIT NO.
Schiller:
Overruled. Apple objects to this exhibit on the basis that the reference was
DX572
struck by Judge Grewal’s Order. This exhibit, however, is an Apple survey that
is unrelated to Judge Grewal’s order cited by Apple.
Schiller:
Overruled. These Apple surveys may be used to impeach Mr. Schiller.
DX592, 605,
Moreover, these documents are Apple’s internal company documents and thus
and 617
are party admissions.
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Case No.: 11-CV-01846-LHK
ORDER ON OBJECTIONS TO PROPOSED EXAMINATION EXHIBITS AND MATERIALS FOR BRESSLER,
KARE, DENISON, SCHILLER, AND FORSTALL

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Schiller:
DX649

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Schiller:
DX709,
DX711,
DX712,
DX714,
DX715,
DX716,
DX717

Sustained. This exhibit was previously excluded by the Court because Judge
Grewal struck Samsung’s theory of invalidity, as well as its theory regarding
Sony’s influence of the Apple design. This document cannot be admitted to
impeach Schiller without being used for the purposes which were barred by
Judge Grewal.
Overruled. If Samsung is able to lay proper foundation, Samsung may be able to
use these exhibits. Second, the evidence is admissible to rebut allegations of
willfulness.

IT IS SO ORDERED.

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Dated: August 2, 2012

_________________________________
LUCY H. KOH
United States District Judge

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Case No.: 11-CV-01846-LHK
ORDER ON OBJECTIONS TO PROPOSED EXAMINATION EXHIBITS AND MATERIALS FOR BRESSLER,
KARE, DENISON, SCHILLER, AND FORSTALL