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

Filing 1570

Declaration of RICHARD S.J. HUNG in Support of 1569 MOTION for Reconsideration APPLES MOTION FOR RECONSIDERATION REGARDING RULINGS ON OBJECTIONS TO BRESSLER, KARE, SCHILLER, DENISON & FORSTALL EXHIBITS (DKT. NO. 1563) filed byApple Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Related document(s) 1569 ) (Jacobs, Michael) (Filed on 8/3/2012)

Page 1 of 10

Hung, Richard S. J.
From:

Rawson, Taryn S.

Sent:

Thursday, August 02, 2012 12:32 AM

To:

'Robert Becher'; Victoria Maroulis; Hung, Richard S. J.; Kitano, Jamie H.

Cc:

AvS_NDCal_Trial_Team; '[e-mail]'; Samsung v. Apple

Subject: RE: Apple's Objections to Schiller Cross Examination Exhibits

Rob,
When we print out this list, it’s 6 pages long. Please confirm Samsung genuinely intends to fully brief all
these objections.
Taryn
From: Robert Becher [mailto:[e-mail]]
Sent: Thursday, August 02, 2012 12:26 AM
To: Rawson, Taryn S.; Victoria Maroulis; Hung, Richard S. J.; Kitano, Jamie H.
Cc: AvS_NDCal_Trial_Team; '[e-mail]'; Samsung v. Apple
Subject: RE: Apple's Objections to Schiller Cross Examination Exhibits

Taryn--We disagree that MacOs was not disclosed given that Apple provided Samsung with a stipulation
on it in December 2011. We realized, however, that we do not need to use it with Mr. Schiller
and will withdraw the exhibit from his disclosure.
As to your question about SDX3589, it was a mistake and will not be used.
Our filing tomorrow at 8 a.m. will address your supplemental objections to the Schiller cross
exhibits as well as the below objections.
With respect to your Denison objections, what is misleading about the dates and phones titles?
What is argumentative about our exhibits? Are you really contending a 30 second ad is a waste
of time?
Below are our objections. Samsung continues to assert all the objections referenced in Dkt #
1507 and 1521 including foundation objections, except that it is no longer asserting the untimely
disclosure objection to PX 60 which was withdrawn in Dkt # 1526. This list is for new
objections only.

Trial Ex.
No.
PX142
PDX16

8/3/2012

OBJECTIONS TO SCHILLER MATERIALS
Hearsay, irrelevant, cumulative, unduly prejudicial, lacks
personal knowledge, lacks foundation
Hearsay, irrelevant, cumulative, unduly prejudicial, lacks
personal knowledge, lacks foundation, misleading

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Trial Ex. No.
JX1042
JX1044
JX1045

PX12

PX19

PDX17
PDX18

PDX20

PDX21

PDX22
PDX23
PDX24

8/3/2012

OBJECTIONS TO FORSTALL MATERIALS
Outside the scope
Foundation
Improper sponsoring witness
Outside the scope
Foundation
Outside the scope
Foundation
Outside the scope
Violates Court’s 200 exhibit order
Violation of MIL1; No nexus to asserted IP
Foundation
FRE401
FRE403: confusing and waste of time
FRE1006: Improper compilation
Improper sponsoring witness
Hearsay
Not cited in response to interrogatories
Outside the scope
Foundation
FRE1006: Improper compilation
Improper sponsoring witness
Not produced during discovery
Not cited in response to interrogatories
Outside the scope
Foundation
Outside the scope
Foundation
Outside the scope
Foundation
Expert testimony
Legal conclusion
Outside the scope
Foundation
Expert testimony
Legal conclusion
Foundation
Expert testimony
Legal conclusion
Outside the scope
Foundation
Outside the scope
Foundation

Page 3 of 10

Trial Ex. No.
PX7
PX35
PX41
PX44
PX55

PX58

PX160
PX178
PX179
PDX14.4,
14.8-14.10
PDX14.2414.27, 14.2914.33
PDX14.3414.36
PDX14.37

Trial

OBJECTIONS TO KARE
Outside the scope
Not timely disclosed
Not timely disclosed
Outside the scope
Disputed translation
Not timely disclosed
Improper sponsoring witness
Outside the scope
Not timely disclosed
Hearsay
Foundation
Competence
Misleading: user interface does not even exist
Outside the scope
Not timely disclosed
Outside the scope
Not timely disclosed
Disputed translation
Misleading: icon comparison alone
Misleading: only show partial view of asserted trade dress
Outside the scope
Outside the scope
Not timely disclosed
Misleading: only shows partial view of asserted trade dress

Ex. OBJECTIONS TO DENISON MATERIALS

No.
PX 34

1. Lacks personal knowledge. FRE 602.
2. Beyond the scope of 30(b)(6)designation
3. Improper impeachment. FRE 613(b).
4. Incomplete partial translation (should be resolved by replacement of
partial translation with full translation agreed to in meet and confer).

8/3/2012

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5. Incorrect translation of certain words and phrases.
6. Relevance. FRE 402.
7. Improper Purpose.
8. FRE 403 undue distraction and consumption of time.
9. Hearsay not within any exception.
PX 38

1. Lacks personal knowledge. FRE 602.
2. Beyond the scope of 30(b)(6)designation
3. Improper impeachment. FRE 613(b).
4. Not identified in response to contention interrogatory on evidence of
willfulness
5. Improper Purpose.
6. Relevance. FRE 402.
7. FRE 403 undue distraction and consumption of time.
8. Hearsay not within any exception.

PX 44

1. Incorrect translations of certain words and phrases.

PX 62

1. Not identified in response to contention interrogatory on evidence of
willfulness

Errata to
September 21,
2011 30(b)(6)
Deposition of
Justin Denison
Deposition
Testimony of
Wookyun Kho
Deposition
Testimony of
Jaegwan Shin and
Qi Ling

1. Exhibit not appearing on Apple’s Exhibit List. It is too late to add to
that list now.

Trial Ex. No.
PX-3-

8/3/2012

Apple has not demonstrated that he is unavailable pursuant to Federal Rule
of Civil Procedure 32(a)(4) or that his testimony is properly admissible.
Samsung plans to make Mr. Kho available as a live witness.
The Court has already ruled that these depositions may not be played.

Objections to Bressler Materials
Document never produced; inadmissible demonstrative;

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REVISED

intentionally altered from what was previously shown to jury;
misleading sampling; witness not competent; includes devices
not made available for inspection; includes products not sold in
US and untimely accused; if admitted should require a disclaimer
it is a "non-representative, non-comprehensive, and disputed
graphic created by Apple" and a limiting instruction to the same
effect.

PX-4

PX-5

Document never produced; inadmissible demonstrative; not
competent witness; includes devices not made available for
inspection; argumentative; if admitted should require a
disclaimer saying it is a "non-representative, non-comprehensive,
and disputed graphic created by Apple" and a limiting instruction
to the same effect.
References numerous documents never produced, produced
late, and/or not relied upon by witness; Foundation; Improper
sponsoring witness; unrelated to limited IP rights at issue;

PX-6

References numerous documents never produced, produced
late, and/or not relied upon by witness; Foundation; Improper
sponsoring witness; unrelated to limited IP rights at issue;

PX-7

Improper demonstrative -- Comparison should be to actual
phones; Galaxy S2 phones not properly accused; Ace, i9000, and
i9100 not sold in U.S.; Mesmerize-labeled slide shows wrong
phone; orientation of Tab 10.1 wrong; Incomplete; fails to show
all views and features visible over the life of the products.
Improper demonstrative – comparison should be to actual
devices
Argumentative title – these are only disputed alternatives.
Includes images of the Fidler Replica (see objections below to
JX1078)

PX-8
PX-10

PX-32
PX-59

Untimely; Outside scope/ never considered; incompetent
Disputed Translation between the parties; hearsay being
submitted for truth of matter asserted - Fed. R. Evid.
803(6); Improper Sponsoring Witness; Foundation; Incompetent;
401; 402; 403

PX-133

Untimely produced; lack of foundation; hearsay; unrelated to
limited IP rights at issue; 402; 403

PX-135

lack of foundation; hearsay; unrelated to limited IP rights at
issue; 402; 403

PX-141

Untimely produced; lack of foundation; hearsay; unrelated to

8/3/2012

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limited IP rights at issue; 402; 403
PX-142

Untimely produced; lack of foundation; hearsay; unrelated to
limited IP rights at issue; 402; 403

PX-152
PX-157

Untimely; never considered by witness; incompetent
Already excluded by Order at Dkt No. 1522 as inadmissible
hearsay.
Article considered by witness; lack of foundation; hearsay;
unrelated to limited IP rights at issue; 402; 403

PX-173

PX-174

Untimely produced; lack of foundation; hearsay; unrelated to
limited IP rights at issue; 402; 403

PX-175

Untimely produced; lack of foundation; hearsay; unrelated to
limited IP rights at issue; 402; 403

PX-197

Untimely/never produced; outside scope of expert testimony;
incompetent;

PX-198

Untimely/never produced; outside scope of expert testimony;
incompetent;

JX-1007
JX-1030
JX-1031
JX-1032
JX-1033
JX-1034
JX-1035
JX-1078

not sold in US; 402; 403;
not sold in US; 402; 403;
Not timely accused; 402;
Not timely accused; not sold in US; 402; 403;
Not timely accused; 402;
Not timely accused; 402;
Not timely accused; 402;
standing objection if not produced for inspection and made
available in court; object to extent not an accurate replica of the
tablet

Demonstratives
PDX-15-17
PDX-46-60

Same objections as JX-1078
Argumentative title – these are only "purported alternatives".
Includes images of the Fidler Replica (see objections above to
JX1078)

PDX 61-64
PDX 65-66
PDX-67

Same objections as for PX-3
Same objections as for PX-4
Improper sponsoring witness, incompetent, outside scope of
expert report, foundation

8/3/2012

Page 7 of 10

From: Rawson, Taryn S. [mailto:[e-mail]]
Sent: Wednesday, August 01, 2012 11:17 PM
To: Robert Becher; Victoria Maroulis; Hung, Richard S. J.; Kitano, Jamie H.
Cc: AvS_NDCal_Trial_Team; '[e-mail]'; Samsung v. Apple
Subject: RE: Apple's Objections to Schiller Cross Examination Exhibits

Rob,
Below are Apple’s objections to Denison’s direct examination exhibits. When can we expect to see Samsung’s
objections to the materials Apple disclosed at 7 pm?
Regards,
Taryn
JX1093 – improper non-prior art, irrelevant, untimely disclosed infringement theory, limiting
instruction, improper witness
DX629 – court has already excluded, irrelevant, waste of time, improper sponsoring witness, hearsay
Samsung’s opening slides 41-42 – not listed on Samsung’s exchanged trial exhibit list, personal
knowledge, did not actually use slides 41-42 during opening, misleading dates on slide, improper
sponsoring witness
Samsung’s Objs. to Apple’s Rule 30(b)(6) PI Depo. Notice and Ltr. from M. Chan to J. Bartlett – not listed
on Samsung’s exchanged trial exhibit list
SDX3508 – argumentative, improper legal conclusion
SDX3509, SDX3510 – argumentative, improper legal conclusion, did not disclose underlying exhibit with
Denison, foundation, personal knowledge, improper sponsoring witness
SDX3563 - Argumentative, improper legal heading, misleading as to names of Galaxy phones
SDX3565, SDX3566 – misleading, improper witness
SDX3587 - personal knowledge, hearsay, Rule 408, relevance, improper sponsoring witness, underlying
exhibit was not disclosed for Denison

From: Rawson, Taryn S.
Sent: Wednesday, August 01, 2012 10:04 PM
To: 'Robert Becher'; Victoria Maroulis; Hung, Richard S. J.; Kitano, Jamie H.
Cc: AvS_NDCal_Trial_Team; '[e-mail]'; Samsung v. Apple
Subject: RE: Apple's Objections to Schiller Cross Examination Exhibits

Hi Rob,
First, Apple does intend to file one 5-page brief tomorrow at 8 am. It will include:
our supplement objections to the Schiller cross exhibits listed below
our objections to the newly disclosed exhibits for Samsung’s direct exam of Justin Denison, which we’ll
send you shortly
our responses to the objections you’ll notify us of tonight
Could you please confirm what you are briefing tonight?
Second, Ken MacCardle will send the complete slide deck for Bressler’s exam in just a moment.

8/3/2012

Page 8 of 10

Third, Apple produced exhibit 19 for inspection on the computer in MoFo’s Palo Alto office which also houses
Director files. They were produced for inspection before the close of discovery. Apple withdraws Exhibit 69.
Finally, you listed SDX3589 as a demonstrative for the Denison direct examination, but we didn’t see it in your
disclosure. Could you send it?
Kind regards,
Taryn
From: Robert Becher [mailto:[e-mail]]
Sent: Wednesday, August 01, 2012 9:21 PM
To: Rawson, Taryn S.; Victoria Maroulis; Hung, Richard S. J.; Kitano, Jamie H.
Cc: AvS_NDCal_Trial_Team; '[e-mail]'; Samsung v. Apple
Subject: RE: Apple's Objections to Schiller Cross Examination Exhibits

Taryn—
Does Apple intend to file one 5 page brief at 8 a.m. with the supplemental objections below as well as Apple’s
response to Samsung’s objections to the newly disclosed materials from this evening? Please let us know right
away.
Also, please send us a complete, revised slide deck for Mr. Bressler so we can evaluate the changes.
Finally, does Apple contend that exhibits 19 and 69 have been produced and, if so, when? Let us know this
evening.
Regards,
Rob
From: Rawson, Taryn S. [mailto:[e-mail]]
Sent: Wednesday, August 01, 2012 6:12 PM
To: Victoria Maroulis; Hung, Richard S. J.; Kitano, Jamie H.; Robert Becher
Cc: AvS_NDCal_Trial_Team; '[e-mail]'; Samsung v. Apple
Subject: RE: Apple's Objections to Schiller Cross Examination Exhibits

Vicki,
Here are the supplemental objections to the Schiller cross exhibits we will be filing with the Court tomorrow at 8
am.
Kind regards,
Taryn
•

DX516 - Samsung’s theories based on this exhibit were not timely disclosed in discovery; authenticity; Samsung’s
expert opinions on this reference have been struck, irrelevant, improper sponsoring witnesses, lack of foundation

•

•

DX572 – Wagner’s apportionment theory was excluded in the court’s Daubert order, relevance,
hearsay, improper sponsoring witness, lacks foundation, limiting instruction required, misleading,
untimely disclosure of related theories
DX592 – lacks foundation, improper sponsoring witness, hearsay, relevance, misleading, limiting

8/3/2012

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instruction required, Wagner’s apportionment theory was excluded in the court’s Daubert order
• DX605 – Wagner’s apportionment theory was excluded in the court’s Daubert order, relevance,
hearsay, improper sponsoring witness, lacks foundation, limiting instruction required, misleading,
untimely disclosure of related theories
• DX617 – excluded by Daubert order, relevance, hearsay, improper sponsoring witness, lacks foundation,
limiting instruction required, misleading, untimely disclosure of related theories
• DX649 –This Court sustained Apple’s objection to this evidence (Dkt. No. 1519.); lack of foundation,
relevance, irrelevant, misleading
• DX709, DX711, DX712, DX714, DX715, DX716, DX717 – lacks foundation, no personal knowledge,
irrelevant, misleading

From: Rawson, Taryn S.
Sent: Wednesday, August 01, 2012 4:44 PM
To: 'Victoria Maroulis'; Hung, Richard S. J.; Kitano, Jamie H.; Robert Becher
Cc: AvS_NDCal_Trial_Team; '[e-mail]'; Samsung v. Apple
Subject: Apple's Objections to Schiller Cross Examination Exhibits

Vicki,
We just noticed that Samsung mistakenly identified many of the exhibits that it intends to use on the cross
examination of Phil Schiller as plaintiff’s exhibits (with “PX”) when they are in fact defendant’s exhibits.
We intend to supplement our objections to Schiller cross exhibits with our objections to these documents. We
will send you shortly the list of objections we intend to file with the Court tomorrow at 8 am.
Regards,
Taryn

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