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

Filing 1627

Apple's OBJECTIONS and RESPONSES to 1628 Objections Regarding Proposed Examination Materials for Boris Teksler by Apple Inc.. (Selwyn, Mark) (Filed on 8/8/2012) Modified on 8/9/2012 linking entry to document #1628 (dhm, COURT STAFF).

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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 INC.’S OBJECTIONS AND
RESPONSES TO OBJECTIONS
REGARDING PROPOSED
EXAMINATION MATERIALS FOR
BORIS TEKSLER
Trial:
Time:
Place:
Judge:

August 10, 2012
9:00 a.m.
Courtroom 1, 5th Floor
Hon. Lucy H. Koh

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Defendants.
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APPLE INC.’S OBJECTIONS AND RESPONSES RE: PROPOSED EXAMINATION MATERIALS FOR BORIS TEKSLER
CASE NO. 11-CV-01846-LHK

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I.

APPLE’S OBJECTIONS TO SAMSUNG’S PROPOSED CROSS-EXAMINATION
MATERIALS FOR BORIS TEKSLER

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A.

PX51/DX586 (same document)

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PX51 is a settlement proposal Apple made to Samsung in October 2010, two months after

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Judge Grewal found that Apple provided “Samsung with a comprehensive summary of its

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specific patent infringement claims against specific Samsung products,” and over a month after

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Samsung concluded “there is a reasonable likelihood of future patent litigation between

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Samsung and Apple unless a business resolution can be reached.” (Dkt. No. 1321 at 16

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(emphasis in original).) As explained below, PX51 is inadmissible under Federal Rules of

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Evidence 408 and 403. Apple withdraws PX51 from its own exhibit list.
1.

Objection 1: FRE 408

PX51 is inadmissible under Federal Rule of Evidence 408. PX51 states it was provided

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for “Business Settlement Purposes Only,” and provided under “Rule 408 of Federal Rules of

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Evidence, Without Prejudice.” It refers to specific payment amounts and terms for a proposed

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settlement. (PX51 at 12-13, 15-18.) The jury may improperly use PX51 as evidence of the

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existence of liability or the amount of damages, which is precisely what Rule 408 prohibits. See,

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e.g., Cornell University v. Hewlett-Packard Co., 2008 WL 2223122, *1 (N.D.N.Y. 2008)

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(excluding evidence of patentee’s license offers to Hewlett-Packard and Intel under Rules 408

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and 402) (Federal Circuit Judge Rader, sitting by designation). Moreover, unlike with PX52

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(discussed below), which Apple offers to establish when it gave notice to Samsung of Apple’s

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infringement claims, Samsung cannot identify any proper justification for admitting PX51.

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2.

Objection 2: FRE 403

For these same reasons, PX51 is also inadmissible under Federal Rule of Evidence 403,

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because its “probative value is substantially outweighed by a danger of one or more of the

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following: unfair prejudice, confusing the issues, [and] misleading the jury . . .” See, e.g.,

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LadaTech, LLC v. Illumina, Inc., 2012 WL 1188266, *1 (D. Del., 2012) (excluding failed license

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negotiations under Rule 403).

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APPLE INC.’S OBJECTIONS AND RESPONSES RE: PROPOSED EXAMINATION MATERIALS FOR BORIS TEKSLER
CASE NO. 11-CV-01846-LHK

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II.

SAMSUNG’S OBJECTIONS TO APPLE’S PROPOSED DIRECTEXAMINATION MATERIALS FOR BORIS TEKSLER

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A.

Testimony from Boris Teksler Concerning the August 4, 2010 Meeting
between Apple and Samsung

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Apple does not intend to elicit testimony from Mr. Teksler as to anything that was said at

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the August 4, 2010 meeting between Apple and Samsung, beyond the fact that at that meeting

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Apple presented PX52, a PowerPoint presentation giving Samsung notice of its infringement of

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Apple patents and trade dress. Mr. Teksler has personal knowledge of this: he helped prepare

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PX52 in anticipation of the meeting, and he participated in subsequent meetings with Samsung in

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which the parties cross-referenced the earlier presentation of PX52. Samsung is free to cross-

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examine Mr. Teksler as to the limits of his personal knowledge, but this goes to the weight of the

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evidence, not its admissibility.

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1.

As noted above, Apple will only inquire into matters within Mr. Teksler’s personal

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Objection 1: FRE 602

knowledge. Samsung’s Rule 602 objection is thus unfounded.
2.

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Objection 2: FRE 802

As noted above, Apple will not inquire into anything that was said at the August 4, 2010

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meeting, beyond the fact that PX52 was presented—a fact that is within Mr. Teksler’s personal

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knowledge based on his preparation of PX52 and his participation in subsequent discussions with

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Samsung personnel in which PX52 was discussed.
B.

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PX52
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Objections 1 and 2: FRE 602 and 802

Samsung’s Rule 602 and Rule 802 objections to PX52 fail for the same reasons set out

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above. Mr. Teksler helped create PX52 and has personal knowledge, based on discussions with

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Samsung personnel, that it was delivered to Samsung. Further, the presentation is relevant,

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among other reasons, for the non-hearsay purpose of establishing that Apple put Samsung on

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notice of Apple’s patent infringement, trade dress, and copying claims no later than August 4,

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2010.

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APPLE INC.’S OBJECTIONS AND RESPONSES RE: PROPOSED EXAMINATION MATERIALS FOR BORIS TEKSLER
CASE NO. 11-CV-01846-LHK

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Dated: August 8, 2012

WILMER CUTLER PICKERING
HALE AND DORR LLP

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By:

/s/ Mark D. Selwyn
Mark D. Selwyn

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Attorneys for Plaintiff
APPLE INC.

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APPLE INC.’S OBJECTIONS AND RESPONSES RE: PROPOSED EXAMINATION MATERIALS FOR BORIS TEKSLER
CASE NO. 11-CV-01846-LHK

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