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

Filing 1564

MOTION Regarding Sealing Issues Related to August 3 Wintess Examinations by Apple Inc. (Attachments: # 1 Appendix A, # 2 Proposed Order)(Jacobs, Michael) (Filed on 8/2/2012) Modified on 8/6/2012 counsel failed to post document as a motion (dhm, 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]

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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,
Plaintiff,

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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 (PSG)
APPLE’S MOTION REGARDING
SEALING ISSUES RELATED TO
AUGUST 3 WITNESS
EXAMINATIONS

Defendants.

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APPLE’S MOTION REGARDING SEALING ISSUES RELATED TO AUGUST 3 WITNESS EXAMINATIONS
CASE NO. 11-CV-01846-LHK (PSG)

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Apple has two motions to seal pending before the Court: (1) a Motion to Seal Prior

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Motions and Exhibits Thereto (Dkt. No. 1499) and (2) a Motion to Seal Confidential Trial

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Exhibits (Dkt. No. 1495). These motions provide a particularized, document-by-document

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showing of good cause and compelling reasons for sealing of Apple’s most competitively

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sensitive information. Along with these motions, Apple submitted declarations from several of its

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executives attesting to the value of this information, the efforts Apple has undertaken to maintain

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its secrecy, and the harm that Apple would suffer if it were publicly disclosed.

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Tomorrow, August 3, Samsung intends to use four documents that are subject to Apple’s
Motion to Seal Confidential Trial Exhibits – PX102, PX103, DX617, and DX767 – during its

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cross-examination of Philip Schiller, Apple’s Senior Vice President of Worldwide Marketing.1 In

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addition, Samsung untimely disclosed (at 9:23 p.m. on August 2) four more Schiller cross-

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examination exhibits (DX534 and DX774-76) which are similarly subject to Apple’s pending

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motion. Apple objected to this late amendment to Samsung’s list.

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Without further action, these highly confidential exhibits will be publicly disclosed,

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causing severe harm to Apple. Apple has sought to avoid that harm without further burdening the

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Court and has been diligently negotiating a stipulation with Samsung regarding use of the parties’

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confidential documents, including PX102, PX103, DX617, and DX767. Apple submitted a

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detailed proposal to Samsung on July 26. Since that time, the parties have met and conferred

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(including meetings in person) and have exchanged several drafts.

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One part of Apple’s proposal has been that, for certain sensitive exhibits, only the portions

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shown to the jury during examinations of witnesses would come into evidence. To illustrate this

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proposal, Apple sent Samsung excerpted versions of DX617 and DX767 containing only pages

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discussed in DX701, a Samsung summary exhibit pursuant to Federal Rule of Evidence 1006. By

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placing into the record only the few relevant pages of what are now exhibits containing hundreds

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of pages, Apple’s proposal would lessen the burdens on the jury and the Court and would balance

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Appendix A to this Notice is a chart describing PX102, PX103, DX617, and DX767 and
identifying the portions of Apple’s motions to seal that relate to these four exhibits.

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APPLE’S MOTION REGARDING SEALING ISSUES RELATED TO AUGUST 3 WITNESS EXAMINATIONS
CASE NO. 11-CV-01846-LHK (PSG)

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the public interest in access to court records and Apple’s interest in maintaining secrecy of its

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valuable trade secrets. The parties have been unable to reach agreement, however.

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Apple therefore requests that the Court issue an order accepting Apple’s proposed

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redactions of PX102 and PX103, which it lodged with the Court Tuesday morning, July 31, and

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directing Samsung to enter into evidence only those portions of DX617 and DX767 that it

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reasonably intends to use during its cross-examination of Mr. Schiller.2

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In the event that the Court denies either or both of Apple’s motions to seal, Apple asks

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that the Court stay any order requiring public filing of Apple’s confidential exhibits for five days

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so that Apple may seek relief.

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Dated: August 2, 2012

MORRISON & FOERSTER LLP

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By: /s/ Michael A. Jacobs
Michael A. Jacobs

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Attorneys for APPLE INC.

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If the Court allows Samsung’s untimely supplementation of its examination list to
include DX534 and DX774-76, Apple requests that only excerpted portions of those documents
be entered into evidence as well.

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APPLE’S MOTION REGARDING SEALING ISSUES RELATED TO AUGUST 3 WITNESS EXAMINATIONS
CASE NO. 11-CV-01846-LHK (PSG)

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