Apple Inc. v. Samsung Electronics Co. Ltd. et al
Filing
1592
Declaration of Jason R. Bartlett in Support of 1591 Opposition/Response to Motion for Adverse Inference Jury Instruction filed byApple Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11)(Related document(s) 1591 ) (Bartlett, Jason) (Filed on 8/6/2012)
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MO RRI SO N & F O E RST E R L LP
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T O K YO , L O N D O N , BR U SSE L S,
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November 2, 2011
Writer’s Direct Contact
415.268.6615
JasonBartlett@mofo.com
Via E-Mail (marissaducca@quinnemanuel.com)
Marissa Ducca
Quinn Emmanuel
555 Twin Dolphin Drive, 5th Floor
Redwood Shores, CA 94065-2139
Re:
Apple v. Samsung, Case No. 11-cv-1846-LHK (N.D. Cal.)
Dear Marissa:
This letter responds to your letter dated October 18, 2011, to questions raised by Samsung in
the parties’ joint meet-and-confer working session on October 19, 2011, and to related
representations set forth in Rachel Herrick Kassabian’s letter to Wes Overson dated October
21, 2011.
In response to your letters, and also in the interest of the “transparency” Judge Grewal has
instructed the parties to provide one another, we wanted to provide you some additional
information and context on the document collection and culling processes applied by Apple
in conjunction with the above-referenced suit brought against Samsung.
Collection
Apple follows a standardized collection procedure for individual custodians:
1. A Morrison & Foerster attorney, a representative from Apple’s internal legal department,
and a technician from Apple’s in-house data collection vendor all meet with the custodian in
person at his or her workplace. At least one additional Morrison & Foerster attorney
typically participates by phone. Two hours are usually allotted for these meetings, during
which Apple and its outside counsel interview the custodian while his or her documents are
being collected to ensure that all relevant data sources are identified and captured. To date,
Apple has collected documents from approximately 25 custodians in connection with this
case, according to this protocol. A partner from Morrison & Foerster has personally
participated in all such collections.
2. When a custodian’s documents are collected, Apple’s data collection vendor copies the
custodian’s email and electronic documents, and collects additional potentially relevant
materials identified during the interview. These emails, electronic documents, and other
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Marissa Ducca
November 2, 2011
Page Two
materials are then processed into the attorney document review for production. Typically, no
automatic “keyword” limitations are applied at this stage of the collection. In certain
instances, when the custodian’s documents are relevant to a very narrow or specific aspect of
the case, a more targeted collection may be conducted by searching the index of documents
maintained on the custodian’s computer for documents and emails hitting certain keywords.
3. For certain custodians whose emails and electronic files have already been collected for
another recent litigation matter, a separate protocol is followed to facilitate expedient
production. Before the custodial interview, Apple and Morrison & Foerster review and
analyze Apple’s records of these “prior” collections to make a preliminary determination, in
light of the breadth of the collections and the cases involved, whether one (or a combination)
of the prior collections is potentially comprehensive enough to be used in lieu of a new
collection to meet Apple’s discovery obligations in this case. If it is determined that the prior
collection is not potentially sufficient, Apple follows the protocol described in (1) above.
4. If Apple and Morrison & Foerster determine that a custodian’s prior electronic collection
is potentially sufficient, a representative from Apple’s internal legal department and one or
more Morrison & Foerster attorneys then proceed to interview the custodian by telephone to
obtain additional information that will allow for a final determination on the issue. During
the phone interview, Apple and outside counsel also solicit sufficient information to
determine whether there are any additional potentially relevant sources of information that
should be collected to meet Apple’s discovery obligations. Where Apple and Morrison &
Foerster determine, with input from the custodian, that a prior collection may be used in lieu
of a new collection, the prior collection is processed into the attorney document review for
production. To date, Apple and its outside counsel have conducted approximately 16 such
interviews inconnection with this case. A partner from Morrison & Foerster personally
participated in nearly all of them.
5. Custodians who are no longer employed by Apple are processed in a similar manner as
the protocol described in (4), using prior collections, including any collections made at the
time of the employee’s departure from the company. To date, Apple and its outside counsel
have incorporated the documents of approximately 6 former Apple employees into the
attorney document review for production in this case.
For each current Apple employee named on a patent Apple has asserted in this litigation, as
well as those patents it has asserted in the ITC case, Apple’s internal legal team and
Morrison & Foerster attorneys have followed these standardized collection and interview
processes. In addition, they have executed targeted data collections from Apple’s various
servers and central files, resulting in the processing of a large volume of additional data into
the attorney document review for production, to meet discovery obligations with respect to
other evidentiary needs.
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Marissa Ducca
November 2, 2011
Page Three
Culling
Of course, the volume of electronic documents collected according to the above procedure
exceeds the volume that can reasonably be reviewed by attorneys for production. Therefore,
after electronic documents are collected, they are culled for responsiveness by running a set
of keyword search terms, prepared by attorneys intimately familiar with the claims and
defenses in the case. The keywords are typically prepared in advance of the custodian
interviews discussed above and the custodians themselves are given the opportunity to
review and comment on the sufficiency of the keywords. Samsung has been provided with a
list of the keyword search terms used to cull the document collections of all but the design
inventors. Enclosed herewith is a listing of the keyword search terms and date limitations
used for the culling of custodial collections of design inventors.
The documents are further processed to reduce volume by eliminating duplicates from the
review set so that only one copy of each document collected from a particular custodian is
reviewed and produced. Duplicates are not removed to the extent they appear in the
documents of two or more different custodians.
After search terms are applied and the documents are “de-duplicated,” the documents that hit
one or more search terms are processed into a review tool that facilitates efficient review and
tagging of the documents by attorneys. At least one, and often two, attorneys reviews each
document. Based on the exercise of attorney judgment, relevant, non-privileged documents
are identified and produced to Samsung as appropriate.
We hope this outline has illuminated the process by which Apple’s documents go from a
custodian’s possession, custody, or control into Samsung’s hands. Please do not hesitate to
let me know if you have any questions or would like additional detail.
We are reviewing your specific questions regarding the documents of specific inventors such
as Stephen LeMay, John Elias, and Imran Chaudhri, and will respond to them upon the
completion of our research.
Sincerely,
/s/ Jason R. Bartlett
Jason R. Bartlett
Encl.
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