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

Filing 1569

MOTION for Reconsideration APPLES MOTION FOR RECONSIDERATION REGARDING RULINGS ON OBJECTIONS TO BRESSLER, KARE, SCHILLER, DENISON & FORSTALL EXHIBITS (DKT. NO. 1563) filed by Apple Inc.. (Jacobs, Michael) (Filed on 8/3/2012)

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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 MOTION FOR
RECONSIDERATION REGARDING
RULINGS ON OBJECTIONS TO
BRESSLER, KARE, SCHILLER,
DENISON & FORSTALL EXHIBITS
(DKT. NO. 1563)

Defendants.

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APPLE MOT. FOR RECON. RE: RULINGS ON OBJ. TO BRESSLER, KARE, SCHILLER, DENISON & FORSTALL EXHS.
CASE NO. 11-CV-01846-LHK
sf-3178692

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I.

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The Court’s procedures require that the parties identify their direct witnesses and related

Background.

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materials two days before their testimony at 7 p.m. (“the two-day rule”). (Dkt. No. 1267.) Apple

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thus identified and disclosed materials for Peter Bressler, Susan Kare, Philip Schiller, and

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Justin Denison on Sunday, July 29, 2012 for potential testimony on Tuesday, July 31, 2012.

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Also per the Court’s schedule, the parties briefed Samsung’s objections to these exhibits

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on Monday, July 30, 2012 at 8 a.m. (Dkt. Nos. 1517 & 1518.) These witnesses ultimately did

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not testify on Tuesday, July 30, 2012 (except for Mr. Schiller briefly), and the Court did not

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resolve Samsung’s objections to these witnesses’ materials that day.

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II.

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Because Mr. Bressler, Ms. Kare, and Mr. Denison did not testify and Mr. Schiller’s

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testimony had just begun, Apple disclosed a small set of additional exhibits on Wednesday:

Samsung’s new objections to previously identified (and objected to) exhibits.

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

Peter Bressler: 3 demonstrative slides revised & 2 slides added

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

Susan Kare: 3 demonstrative slides revised and 4 slides added (multiple other
slides deleted for brevity)

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

Peter Schiller: 1 demonstrative and 1 exhibit corrected (all typographical errors)

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

Justin Denison: Deposition testimony supplemented with deposition errata, and 2
exhibits added



Wookyun Kho: 1 deposition excerpt removed

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Apple also disclosed Scott Forstall as a potential witness for Friday, August 3, 2012.
Rather than objecting only to the limited supplemental witness disclosures and
Mr. Forstall’s materials, Samsung re-objected and added new objections for all five of these
witnesses’ direct exhibits and demonstratives. Samsung asserted 125+ old and new objections to
95+ exhibits or demonstrative slides. Its objections spanned six single-spaced pages and used
vague phrases like “outside the scope” and “untimely disclosed.” Samsung disclosed its
objections late at night (at 12:26 a.m), forcing Apple to scramble to meet the Thursday 8:00 a.m.
briefing deadline. Yet upon request, Samsung refused to identify the specific objections that it
intended to brief within the parties’ five page limit. (Hung Decl. Ex. A.)
APPLE MOT. FOR RECON. RE: RULINGS ON OBJ. TO BRESSLER, KARE, SCHILLER, DENISON & FORSTALL EXHS.
Case No. 11-CV-01846-LHK
sf-3178692

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On Thursday, August 2, 2012, the Court indicated that it would treat the parties’ latest

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objections as superceding their earlier objections. (Dkt. 1544.) Believing that Samsung had

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waived its new objections to previously identified materials, Apple focused its limited five-page

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briefing on new or newly revised materials. The Court therefore entertained many of Samsung’s

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objections that Apple did not have an opportunity to answer.

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III.

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Samsung’s “object a lot, but vaguely” approach misled the Court into sustaining many of

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its objections -- including barebones, “untimely disclosed” ones that were patently false.

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The Court sustains several of Samsung’s objections.

A.

Peter Bressler Exhibits & Demonstratives

EXH.
NO.

REASON FOR
SUSTAINING
OBJECTION
PX3,
“The devices in PX3,
PX4,
PX4, and PDX65-66 to
PDX55- which Samsung now
PDX66 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.” (Dkt. 1563
at 2.)

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PX133,
PX141,
PX142,
PX174,
PX175
PX152,
PX197,
PX198

“These exhibits were
untimely produced
after the close of fact
discovery.” (Dkt. 1563
at 2.)
“These devices were
never produced for
inspection during fact
discovery and were not
discussed in Bressler’s
Report . . . . [T]hese

ACTUAL
FACTS
PX3 and PX4 were disclosed in the Bressler report at
paragraphs 95-101 (D.I. 935-6 at 21-23) and attached as
exhibits 25 & 27 to the report. (Hung Decl. Ex. B.)
Judge Grewal’s order never struck PX3 or PX4 as untimely
disclosed. Indeed, Samsung excluded the related discussion
from the scope of its proposed order. (See D.I. 934-4 at 2
(seeking to strike paragraphs 34, 51, 56, 60, 64-67, 68, 73,
77-80, 81, 86, 89-92, 104, 110-127, 136, 141-143, 191-193,
255-259, 338-344, 358 and 360, but not paragraphs 95-101.))
For the avoidance of any doubt, Apple has revised PX3 to
substitute Galaxy SII i777 with the Samsung Galaxy S II
T989 and deleted the third page of PX3. Each of the phones
in revised PPX3 was cited in exhibit 25 of Bressler’s report.
PDX65-66 is a demonstrative relating to PX3 and PX4.
All five exhibits were attached to the Zhang Decl. ISO
Apple’s preliminary injunction motion -- over a year ago.
See Dkt. No. 87-1 (PX174); Dkt. No. 87-2 (PX175); Dkt.
No. 87-31 (PX141); Dkt. No. 87-27 (PX133).
The devices are Samsung’s devices.
Apple made them available for inspection during expert
discovery, but Samsung declined. (Hung Decl. Ex. C.)
The devices were expressly discussed in Bressler’s report at

APPLE MOT. FOR RECON. RE: RULINGS ON OBJ. TO BRESSLER, KARE, SCHILLER, DENISON & FORSTALL EXHS.
Case No. 11-CV-01846-LHK
sf-3178692

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EXH.
NO.

REASON FOR
SUSTAINING
OBJECTION
undisclosed devices are
excluded pursuant to
Judge Grewal’s June
27, 2012 Order striking
portions of Bressler’s
Report that reference
undisclosed alternative
devices.” (Dkt. 1563 at
2.)
“This exhibit was not
considered by Bressler
in his expert report.”
(Dkt. 1563 at 3.)

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PX173

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B.

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EXH. NO.

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PX38,
PX55

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ACTUAL
FACTS
paragraphs 95-101(D.I. 935-6 at 21-23) and attached as
exhibits 25 & 27 to the report. (Hung Decl. Ex. B.)
Judge Grewal’s order never struck PX152, PX97, or PX198
as untimely disclosed. Indeed, Samsung excluded the
related discussion from the scope of its proposed order. (D.I.
934-4 at 2 (seeking to strike paragraphs 34, 51, 56, 60, 6467, 68, 73, 77-80, 81, 86, 89-92, 104, 110-127, 136, 141-143,
191-193, 255-259, 338-344, 358 and 360 – but not 95-101.))
PX173 is discussed in the Bressler report at paragraph 104 at
page 35 (D.I. 935-6 at 24.). (Hung Decl. Ex. B.)

Susan Kare’s Exhibits & Demonstratives
REASON FOR
SUSTAINING
OBJECTION
“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.” (Dkt. 1563 at
4.)

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PX14.34,
14.36

“[T]hese pages contain
an argument not

ACTUAL
FACTS
Interrogatory No. 7 did not ask for the identification of
documents relating to willfulness. (Hung Decl. Ex. D.
(“. . . state all facts supporting any contention by
APPLE that Samsung has willfully infringed, diluted,
or falsely designated the origin of its products for each
patent, trade dress, and trademark. . . ”).)
The interrogatory’s request for “all facts” does not
mean that Apple waived its ability to rely on a
document. “[C]ourts are loath to require a party to
‘write basically a portrait of their trial’ for the other
parties.” Roberts v. Heim, 130 F.R.D. 424, 427 (N.D.
Cal. 1989. For this reason, “contention interrogatories .
. . seek[ing] ‘all facts’ are overly broad and unduly
burdensome on their face.” In re eBay Seller Antitrust
Litigation, 2008 WL 5212170, at *2, No. C 07-1882 JF
(RS) (N.D. Cal. Dec. 11, 2008).
Regardless, Apple referred to documents relating to
Samsung’s copying as supporting its willfulness. (Id.
(referring to “all documents that Samsung has
produced, and continues to produce evidencing
comparisons, analyses, studies, teardowns, and
investigations of Apple products”).)
PDX14.34-36 depict a page from PX44. This page
from PX44 is expressly identified and discussed at

APPLE MOT. FOR RECON. RE: RULINGS ON OBJ. TO BRESSLER, KARE, SCHILLER, DENISON & FORSTALL EXHS.
Case No. 11-CV-01846-LHK
sf-3178692

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EXH. NO.

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PDX14.37

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C.
EXH.
NO.
PX38

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Kare report ¶ 89. (Hung Decl. Ex. E at 50 (referring to
Bates label SAMNDCA00204006.)
PDX14.37 depicts a page from PX55. This specific
page of PX55 is expressly identified and discussed at
Kare report ¶ 85. (Hung Decl. Ex. E at 48 (referring to
black & white version of PX55, at Bates label
SAMNDCA10252515.)
See also PX55, above.

Justin Denison’s Exhibits & Demonstratives

“PX38 was not identified in response to Samsung’s contention
Interrog. No. 7 regarding willfulness, and therefore may not be
used for this purpose.” (Dkt. 1563 at 5.)
“PX62 was not identified in response to Samsung’s contention
Interrog. No. 7 regarding willfulness, and therefore may not be
used for this purpose.” (Dkt. 1563 at 5.)

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D.

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ACTUAL
FACTS

REASON FOR SUSTAINING OBJECTION

PX62

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REASON FOR
SUSTAINING
OBJECTION
disclosed in Kare’s
expert reports[] . . . .”
“[T]hese 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.”

ACTUAL
FACTS
See PX55 (Kare),
above.
See PX55 (Kare),
above.

Scott Forstall’s Exhibits & Demonstratives

Samsung’s vague “outside the scope” objection gave Apple no notice of its intent to argue
that Apple’s initial disclosures barred Mr. Forstall’s testimony. (Hung Decl. Ex. A.) Apple
provides a complete recitation of the relevant facts as they pertain to Mr. Forstall below.
EXH.
NO.
JX1042,
JX1044,
JX1045,
PX12,
PX19,
PDX1718,
PDX2024

REASON FOR
SUSTAINING
OBJECTION
“The discovery
disclosures
provided by
Samsung show
that Apple only
indicated that
Forstall had
discoverable
information
regarding the
’163 Patent in its

ACTUAL
FACTS
Mr. Forstall is Apple’s SVP of iOS. Apple’s Rule 26(a)(1)
disclosures indicated that he is knowledgeable about “[t]he
pertinent Apple patents-in-suit, including, conception, reduction to
practice, and inventorship; Apple products embodying the
inventions claimed by the pertinent Apple patents-in-suit, and
other Apple products.” (Hung Decl. Ex. F.) This was sufficient.
Cf. Lithuanian Commerce Corp. v. Sara Lee Hosiery, 177 F.R.D.
245, 278 (D.N.J. 1997) (disclosure of general areas of knowledge
sufficient under Rule 26). Additionally:
[JX1042 – D’305 patent/icons] Mr. Forstall testified regarding

APPLE MOT. FOR RECON. RE: RULINGS ON OBJ. TO BRESSLER, KARE, SCHILLER, DENISON & FORSTALL EXHS.
Case No. 11-CV-01846-LHK
sf-3178692

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EXH.
NO.

REASON FOR
SUSTAINING
OBJECTION
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,
’381 Patent, or
the D’305
Patent.”
“Apple 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.” (Dkt.
1563 at 6.)

ACTUAL
FACTS
icons. (Hung Decl. Ex. G at 216:17-23 (“I know like the design of
icons with the rounded recs was something that we cared about
because it . . . looked uniquely ours, and we didn’t want other
people to go and copy that design . . . .”); Ex. I at 295:14-21 (“So
one of the specific ones that we had talked about was the icon used
to merge calls . . . . ”).)
[JX1044 – ’915 patent/scroll/gestures; PDX23 -- scrolling and
zooming video] Mr. Forstall was asked and testified about the
’915 patent. (Hung Decl. Ex. H at 7:24-8:6 (“Q. Okay. And what
patents did you look at? A. There was one patent that deals with -well, patents deal with many things. There was a patent that deals
with sort of touch and gestures for things like scrolling; a lot of
other things included in that, but that was one of them.”).)
Mr. Forstall specifically testified about scrolling, zooming, and
how the phone operates. (Hung Decl. Ex. G at 28:19-22 (“And so
we had things like pinch to zoom, and so you could put two
fingers down and – and I guess we call this a depinch. You know,
pinch together actually shrinks it down, but a depinch zooms in.”);
Ex. H at 23:24-24:17 (“And when creating the iPhone, there were
so many completely unsolved problems that we had to tackle . . . .
And so we had to figure out a way, . . . with this touch and multitouch input, to scroll something in the way the user would want it,
even though there is imprecise input here. . . . [W]e came up with
a number of ways to figure out that the user intends to scroll this
vertical . . . there's other examples that we have, horizontal and
other dimensions as well -- but to determine that's their intent, and
then scroll in that dimension.”).)
[JX1045 – ’381 patent/rubberbanding; PDX24 (rubberbanding
video] Mr. Forstall testified about looking at a patent “dealing
with rubberbanding.” (Hung Decl. Ex. G at 8:12-13.) He
specifically testified about the “zoom” and “bounce” effects.
(Hung Decl. Ex. G at 202:5-10 (“Was the rubber banding
discussed after that first meeting? Rubber banding is one of the
sort of key things for the fluidity of the iPhone and – and all of
iOS, and so I know that it was one of the ones that Steve really
cared about.”).)
As noted above, Mr. Forstall testified about the ’381 and ‘915
patents, icons, and other graphical user interface topics such as
scrolling, pinching, zooming, gestures. He should be allowed to
testify on at least these topics.

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APPLE MOT. FOR RECON. RE: RULINGS ON OBJ. TO BRESSLER, KARE, SCHILLER, DENISON & FORSTALL EXHS.
Case No. 11-CV-01846-LHK
sf-3178692

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Dated: August 3, 2012

MORRISON & FOERSTER LLP

By:

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

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APPLE MOT. FOR RECON. RE: RULINGS ON OBJ. TO BRESSLER, KARE, SCHILLER, DENISON & FORSTALL EXHS.
Case No. 11-CV-01846-LHK
sf-3178692

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