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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1 2 3 4 5 6 7 8 9 10 HAROLD J. MCELHINNY (CA SBN 66781) MICHAEL A. JACOBS (CA SBN 111664) RACHEL KREVANS (CA SBN 116421) JENNIFER LEE TAYLOR (CA SBN 161368) ALISON M. TUCHER (CA SBN 171363) RICHARD S.J. HUNG (CA SBN 197425) JASON R. BARTLETT (CA SBN 214530) MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: (415) 268-7000 Facsimile: (415) 268-7522 WILLIAM F. LEE WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 Telephone: (617) 526-6000 Facsimile: (617) 526-5000 MARK D. SELWYN (SBN 244180) WILMER CUTLER PICKERING HALE AND DORR LLP 950 Page Mill Road Palo Alto, California 94304 Telephone: (650) 858-6000 Facsimile: (650) 858-6100 11 12 13 Attorneys for Plaintiff and Counterclaim-Defendant APPLE INC. 14 15 UNITED STATES DISTRICT COURT 16 NORTHERN DISTRICT OF CALIFORNIA 17 SAN JOSE DIVISION 18 APPLE INC., a California corporation, 19 20 21 22 23 24 25 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. 26 27 28 DECLARATION OF BETH KELLERMANN ISO OPP. TO MOT. FOR SPOLIATION ADVERSE INFERENCE CASE NO. 11-CV-01846-LHK sf-3179263 1 I, Beth Kellermann, hereby declare as follows: 2 1. I am the Litigation eDiscovery Manager at Apple Inc. I submit this declaration in 3 support of Apple’s opposition to Samsung’s motion for spoliation adverse inference instruction 4 against Apple. I have personal knowledge of the matters set forth below. If called as a witness I 5 could and would competently testify as follows. 6 2. In my role as Litigation eDiscovery Manager, I oversee discovery processes for 7 litigation matters. I manage a team of analysts who are trained in eDiscovery practices and 8 technology. Together, we oversee the process for collecting, processing and producing electronic 9 evidence and paper that has been converted to electronic format. 10 3. Apple has no automatic email deletion policies or systems. Generally speaking, at 11 Apple data is stored in a decentralized fashion. Each business unit and each employee within 12 each business unit may individually store documents relevant to their work. 13 4. To satisfy its document retention and production obligations in ligation, Apple 14 undertakes a rigorous document retention and collection process that includes the issuance of a 15 legal hold to those employees who counsel has determined may have information that is 16 potentially relevant to a specific matter. After a legal hold issues, counsel may conduct individual 17 data collection interviews. During the interview, employees are asked questions about their 18 document and email storage practices. Counsel will also confirm that each individual has 19 received a document retention notice and understands his or her document retention obligations. 20 If relevant documents are identified during the course of the interview, a collection is conducted 21 by a computer analyst specially trained in techniques for collecting data from Apple computer 22 equipment in a forensically sound manner. Typically, such a collection would include making a 23 complete copy of all of the employee’s work-related email accounts. 24 5. There is no policy at Apple dictating that an employee must delete particular 25 emails after a certain period of time. Employees who are not subject to document retention 26 notices are encouraged to keep the size of their email accounts below certain limits. Such 27 employees whose email accounts are too large may receive automatic notices requesting that they 28 DECLARATION OF BETH KELLERMANN ISO OPP. TO MOT. FOR SPOLIATION ADVERSE INFERENCE CASE NO. 11-CV-01846-LHK sf-3179263 1 1 reduce the size of their email accounts. Employees who are under document retention do not 2 receive such notices. 3 6. Apple is frequently involved in litigation and therefore it issues many document 4 retention notices. Document retention notices are typically sent by email from the Vice President, 5 Litigation to individual custodians. My eDiscovery team maintains a database of all document 6 retention notices that we have issued. 7 8 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: 9 Bart Andre (19 notices) 10 Brian Huppi (3 notices) 11 Christopher Stringer (14 notices) 12 Duncan Kerr (16 notices) 13 Eugene Whang (8 notices) 14 Jonathan Ive (41 notices) 15 Matthew Rohrback (17 notices) 16 Rico Zorkendorfer (1 notice) 17 Shin Nishibori (3 notices) 18 Steven Lemay (32 notices) 19 Scott Forstall (78 notices) 20 Because Apple employees receive so many litigation hold notices covering diverse subject 21 matters, many of them have adopted a general practice of attempting to retain all substantive 22 documents and communications relating to their work. 23 8. Apple former CEO Steve Jobs was regularly identified as having data that was 24 potentially relevant to many different pieces of litigation. Accordingly, rather than repeatedly 25 issue separate document retention notices to him, separate procedures were put in place to retain 26 and search his data and to apprise him of the materials he was required to preserve. As part of 27 this, from time to time Apple made and retained copies of his email account. 28 DECLARATION OF BETH KELLERMANN ISO OPP. TO MOT. FOR SPOLIATION ADVERSE INFERENCE CASE NO. 11-CV-01846-LHK sf-3179263 2 1 9. When each new case arises, before conducting new collections, we go through a 2 rigorous process of providing counsel with a complete inventory of all of our historical data 3 collections. Counsel then determines, in consultation with the employee and Apple eDiscovery 4 analysts, which prior collections should be searched for potential review. In connection with this 5 case, prior collections from Steve Jobs, Jonathan Ive and Scott Forstall, among others, were 6 included in the dataset that was searched for potential review. 7 10. After the issuance of a document retention notice, if an employee terminates 8 employment with Apple, a complete preservation copy of all of the employee’s user-created files 9 are made. For instance, such a collection was conducted after Brian Huppi left Apple in April 10 2010. By contrast, Douglas Satzger left Apple in 2008 when he was not subject to document 11 retention. Accordingly, no termination collection was made of his data. 12 13 I declare under penalty of perjury that the foregoing is true and correct. Executed this 5th day of August, 2012 at Sacramento, California. 14 15 /s/ Beth Kellermann Beth Kellermann 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF BETH KELLERMANN ISO OPP. TO MOT. FOR SPOLIATION ADVERSE INFERENCE CASE NO. 11-CV-01846-LHK sf-3179263 3 ATTESTATION OF E-FILED SIGNATURE 1 2 3 4 5 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 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF BETH KELLERMANN ISO OPP. TO MOT. FOR SPOLIATION ADVERSE INFERENCE CASE NO. 11-CV-01846-LHK sf-3179263 4

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