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

Filing 1593

Declaration of Beth Kellermann in Support of 1591 Opposition/Response to Motion for Spoliation Adverse Inference Instruction Against Apple filed byApple Inc.. (Related document(s) 1591 ) (Bartlett, Jason) (Filed on 8/6/2012)

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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]

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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,

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Plaintiff,
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
DECLARATION OF BETH KELLERMANN
IN SUPPORT OF APPLE’S OPPOSITION
TO SAMSUNG’S MOTION FOR
SPOLIATION ADVERSE INFERNECE
INSTRUCTION AGAINST APPLE

Defendants.

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DECLARATION OF BETH KELLERMANN ISO OPP. TO MOT. FOR SPOLIATION ADVERSE INFERENCE
CASE NO. 11-CV-01846-LHK
sf-3179263

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I, Beth Kellermann, hereby declare as follows:

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1.

I am the Litigation eDiscovery Manager at Apple Inc. I submit this declaration in

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support of Apple’s opposition to Samsung’s motion for spoliation adverse inference instruction

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against Apple. I have personal knowledge of the matters set forth below. If called as a witness I

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could and would competently testify as follows.

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2.

In my role as Litigation eDiscovery Manager, I oversee discovery processes for

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litigation matters. I manage a team of analysts who are trained in eDiscovery practices and

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technology. Together, we oversee the process for collecting, processing and producing electronic

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evidence and paper that has been converted to electronic format.

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3.

Apple has no automatic email deletion policies or systems. Generally speaking, at

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Apple data is stored in a decentralized fashion. Each business unit and each employee within

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each business unit may individually store documents relevant to their work.

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4.

To satisfy its document retention and production obligations in ligation, Apple

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undertakes a rigorous document retention and collection process that includes the issuance of a

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legal hold to those employees who counsel has determined may have information that is

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potentially relevant to a specific matter. After a legal hold issues, counsel may conduct individual

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data collection interviews. During the interview, employees are asked questions about their

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document and email storage practices. Counsel will also confirm that each individual has

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received a document retention notice and understands his or her document retention obligations.

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If relevant documents are identified during the course of the interview, a collection is conducted

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by a computer analyst specially trained in techniques for collecting data from Apple computer

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equipment in a forensically sound manner. Typically, such a collection would include making a

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complete copy of all of the employee’s work-related email accounts.

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5.

There is no policy at Apple dictating that an employee must delete particular

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emails after a certain period of time. Employees who are not subject to document retention

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notices are encouraged to keep the size of their email accounts below certain limits. Such

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employees whose email accounts are too large may receive automatic notices requesting that they

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DECLARATION OF BETH KELLERMANN ISO OPP. TO MOT. FOR SPOLIATION ADVERSE INFERENCE
CASE NO. 11-CV-01846-LHK
sf-3179263

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reduce the size of their email accounts. Employees who are under document retention do not

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receive such notices.

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6.

Apple is frequently involved in litigation and therefore it issues many document

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retention notices. Document retention notices are typically sent by email from the Vice President,

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Litigation to individual custodians. My eDiscovery team maintains a database of all document

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retention notices that we have issued.

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7.

Based on our records, the following individuals each received document retention

notices in connection with one or more pieces of litigation on or before August 2010:

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Bart Andre (19 notices)

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Brian Huppi (3 notices)

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Christopher Stringer (14 notices)

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Duncan Kerr (16 notices)

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Eugene Whang (8 notices)

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Jonathan Ive (41 notices)

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Matthew Rohrback (17 notices)

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Rico Zorkendorfer (1 notice)

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Shin Nishibori (3 notices)

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Steven Lemay (32 notices)

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Scott Forstall (78 notices)

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Because Apple employees receive so many litigation hold notices covering diverse subject

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matters, many of them have adopted a general practice of attempting to retain all substantive

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documents and communications relating to their work.

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8.

Apple former CEO Steve Jobs was regularly identified as having data that was

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potentially relevant to many different pieces of litigation. Accordingly, rather than repeatedly

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issue separate document retention notices to him, separate procedures were put in place to retain

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and search his data and to apprise him of the materials he was required to preserve. As part of

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this, from time to time Apple made and retained copies of his email account.

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DECLARATION OF BETH KELLERMANN ISO OPP. TO MOT. FOR SPOLIATION ADVERSE INFERENCE
CASE NO. 11-CV-01846-LHK
sf-3179263

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When each new case arises, before conducting new collections, we go through a

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rigorous process of providing counsel with a complete inventory of all of our historical data

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collections. Counsel then determines, in consultation with the employee and Apple eDiscovery

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analysts, which prior collections should be searched for potential review. In connection with this

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case, prior collections from Steve Jobs, Jonathan Ive and Scott Forstall, among others, were

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included in the dataset that was searched for potential review.

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10.

After the issuance of a document retention notice, if an employee terminates

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employment with Apple, a complete preservation copy of all of the employee’s user-created files

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are made. For instance, such a collection was conducted after Brian Huppi left Apple in April

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2010. By contrast, Douglas Satzger left Apple in 2008 when he was not subject to document

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retention. Accordingly, no termination collection was made of his data.

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I declare under penalty of perjury that the foregoing is true and correct. Executed this
5th day of August, 2012 at Sacramento, California.

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/s/ Beth Kellermann
Beth Kellermann

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DECLARATION OF BETH KELLERMANN ISO OPP. TO MOT. FOR SPOLIATION ADVERSE INFERENCE
CASE NO. 11-CV-01846-LHK
sf-3179263

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ATTESTATION OF E-FILED SIGNATURE

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I, Jason R. Bartlett, am the ECF User whose ID and password are being used to file this
Declaration. In compliance with General Order 45, X.B., I hereby attest that Beth Kellermann
has concurred in this filing.
Dated: August 6, 2012

/s/ Jason R. Bartlett
Jason R. Bartlett

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DECLARATION OF BETH KELLERMANN ISO OPP. TO MOT. FOR SPOLIATION ADVERSE INFERENCE
CASE NO. 11-CV-01846-LHK
sf-3179263

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