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

Filing 1657

AMENDED ORDER Regarding Objections to Singh, Teksler Lee, and Chang Exhibits and Deposition Designations. Signed by Judge Lucy H. Koh on 8/10/2012. (lhklc2, COURT STAFF) (Filed on 8/10/2012) Modified text on 8/13/2012 (dhm, COURT STAFF).

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 SAN JOSE DIVISION United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 APPLE, INC., a California corporation, ) ) Plaintiff, ) v. ) ) SAMSUNG ELECTRONICS CO., LTD., A ) Korean corporation; SAMSUNG ) ELECTRONICS AMERICA, INC., a New York ) corporation; SAMSUNG ) TELECOMMUNICATIONS AMERICA, LLC, ) a Delaware limited liability company, ) ) Defendants. ) ) ) Case No.: 11-CV-01846-LHK AMENDED ORDER RE: OBJECTIONS TO SINGH, TEKSLER, LEE, AND CHANG EXHIBITS AND DEPOSITION DESIGNATIONS 18 After reviewing the parties’ briefing, considering the record in the case, and balancing the 19 considerations set forth in Federal Rule of Evidence 403, the Court rules on Samsung’s objections 20 as follows: 21 A. Karan Singh1 22 1. Samsung’s Objections 23 1 24 25 26 27 28 Apple has filed a motion to seal related to its objections and responses to Dr. Singh. Specifically, Apple seeks to seal Dr. Singh’s expert report. Although Samsung has not yet filed a declaration in support of the motion as is required by Civil Local Rule 79-5(d), the Court has reviewed the report and finds that only the portions of the report which contain undisclosed source code are properly sealable. See Agency Solutions.Com, LLC v. TriZetto Group, Inc., 819 F. Supp. 2d 1001, 1017 (E.D. Cal. 2011) (“[S]ource code is undoubtably[sic] a trade secret.”); Kamakana v. City and Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006). Accordingly, Apple’s motion to seal is GRANTED, in part. Samsung shall file a redacted version that redacts only source code. Additionally, as the Court has already noted, the courtroom will be open at all times during trial. Therefore, any slides used during Dr. Singh’s testimony will be available to the public. 1 Case No.: 11-CV-01846-LHK AMENDED ORDER ON OBJECTIONS TO EXHIBITS 1 2 EXHIBIT NUMBER PX49 3 4 5 6 7 8 PDX29 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 EXHIBIT NUMBER DX2557 19 21 Sustained. Although Samsung only produced PX 49 on April 10, 2012, over a month after the March 8, 2012 close of discovery, Dr. Singh’s rebuttal report was not completed until April 16, 2012. Thus, even with Samsung’s late production, Dr. Singh had the opportunity to include PX49 in his expert report but failed to do so. Because of this failure, Samsung lacked notice that Dr. Singh would be relying on PX49 in his testimony and therefore did not depose him on it. Because Samsung has not had the opportunity to depose Dr. Singh regarding PX49, it would be unfair to allow Dr. Singh to testify on PX49 at trial. FRE 102 and 403. However, this does not preclude Apple from seeking to introduce this document through another witness. Overruled. Although Dr. Singh never explicitly discussed source code in connection with claim 8 of the ‘915 patent, he did discuss this code in connection with claim 1. Although claim 1 and claim 8 are technically distinct claims, a reading of the ‘915 patent reveals that claim 1 discloses a method for scrolling on a touch-sensitive display of a device and claim 8 discloses a machine readable storage medium that stores instruction that, when executed, performs the method of claim 1. Other than their preambles, claim 8 and claim 1 are substantially the same. Accordingly, although Dr. Singh only discussed source code in connection with claim 1, Samsung should have been on notice that such discussion would also apply to claim 8. Samsung provides no support for its claim that Dr. Singh lacks foundation to discuss PDX29; so long as Apple lays foundation at trial, PDX29 will be admissible. 2. Apple’s Objections 18 20 COURT’S RULING ON OBJECTION October 25, 2011 ITC 796 Deposition Transcript 22 23 24 25 COURT’S RULING ON OBJECTION Sustained. The video in DX2557 contains footage of a Galaxy Tab 10.1 LTE that shows a “blue glow” design-around for the ‘381 bounce-back patent, which was excluded by Judge Grewal. This Court affirmed Judge Grewal’s ruling. Samsung concedes the presence of the “blue glow.” Sustained. This exhibit contains testimony from Dr. Singh’s ITC deposition regarding claim construction for patents not asserted in this litigation. Such information is not relevant to any issue in this case, and is therefore barred under FRE 402 and 403. Furthermore, the Court granted Samsung’s motion in limine to exclude the findings of parallel proceedings as confusing to the jury. See ECF No. 1269 ¶ 14. Accordingly, the Court sustains Apple’s objection because the risk of confusing the jury and wasting time by introducing excluded evidence outweighs the probative value of this testimony under FRE 403. B. Boris Teksler2 26 2 27 28 Samsung filed a motion to seal portions of its objections based on the protective order and confidentiality designations made by Apple. See ECF No. 1628. Although Apple has not yet filed a declaration in support of the motion as is required by Civil Local Rule 79-5(d), the Court has reviewed the motion and finds that none of the information is properly sealable pursuant to the 2 Case No.: 11-CV-01846-LHK AMENDED ORDER ON OBJECTIONS TO EXHIBITS 1 2 3 4 5 6 1. Samsung’s Objections EXHIBIT NUMBER Testimony About the August 4, 2012 Meeting Between Apple and Samsung PX52 7 8 United States District Court For the Northern District of California 11 12 EXHIBIT NUMBER PX51/DX586 (same document) 13 14 15 16 17 18 21 22 25 26 COURT’S RULING ON OBJECTION Overruled. Although PX51 claims on its face that it is provided for “Business Settlement Purposes Only” and provided under “Rule 408 of Federal Rules of Evidence, Without Prejudice,” Apple has offered no authority for the proposition that such a declaration is sufficient to exclude evidence under the FRE 408. FRE 408 precludes the use of compromise offers and negotiations “either to prove or disprove the validity or amount of a disputed claim.” Samsung seeks to introduce PX51 to demonstrate lack of notice, a permissible purpose under Rule 408. See Fed. R. Evid. 408. To avoid any potential Rule 403 problems, the Court will issue a limiting instruction to the jury that “PX51 may be considered to establish whether or not Samsung had notice of Apple’s design claims, and may not be used to prove or disprove the validity or amount of any disputed claims.” 1. Samsung’s Objections EXHIBIT NUMBER Lee Dep. at 24:13-15 COURT’S RULING ON OBJECTION Sustained. Apple has withdrawn this deposition designation. 2. Apple’s Objections 23 24 Overruled. Apple has provided a sufficient basis for the Court to find, by a preponderance of the evidence, that Samsung was shown the slide show presentation in PX52. C. Jun Won Lee 19 20 Overruled. Apple has provided a sufficient proffer to establish that Mr. Teksler will testify only about matters within his personal knowledge. The proffer also establishes that Mr. Teksler’s testimony will not rely on privileged communications or hearsay. 2. Apple’s Objections 9 10 COURT’S RULING ON OBJECTION EXHIBIT NUMBER Lee Dep. at 45:2-15, and 40:24-41:2, COURT’S RULING ON OBJECTION Sustained in part. Consistent with this Court’s prior ruling that Apple may not introduce evidence related to any FRAND issues until its rebuttal case, Samsung may not introduce evidence about Samsung’s assertions of patent infringement 27 28 “compelling reasons” standard set forth in Kamakana. Kamakana v. City and Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006). Accordingly, Samsung’s motion is DENIED. 3 Case No.: 11-CV-01846-LHK AMENDED ORDER ON OBJECTIONS TO EXHIBITS 1 2 44:3-5; 44:7-9; 55:20-21; 55:23-56:2 3 against Apple in Apple’s affirmative case. Rather, Samsung may present this evidence in its affirmative case. However, counter depo designations 55:20-21 and 55:23-56:2 relate to whether Apple discussed its trade dress at a meeting with Samsung. This relates to Apple’s affirmative case and is admissible at this time. 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 D. DONG HOON CHANG 1. Samsung’s Objections COURT’S RULING ON OBJECTION WITNESS AND EXHIBIT NO. Chang Dep. at 157:20-22, 158:5-10, 158:18-19 and 158:23-25. Overruled. Samsung objects that Dong Hoon Chang’s March 7, 2012 deposition testimony at 157:20-22, 158:5-10, 158:18-19 and 158:23-25 references communications with Samsung’s in-house legal team, and is protected by attorney-client privilege. Attorney-client privilege protects communications with attorneys, but will not protect an underlying fact simply because a client incorporated a statement of the fact into a communication with his or her attorney. See Oracle Am. v. Google, Inc., 2011 U.S. Dist. LEXIS 88747, *7 (N.D. Cal. Aug. 10, 2011) (citing Vasudevan Software, Inc. v. IBM Corp., No. 09-5897-RS, 2011 U.S. Dist. LEXIS 47764, *2 (N.D. Cal. Apr. 27, 2011)) (Where an individual learns of a patent’s existence through communication with an attorney, the date of that communication is not protected by attorney-client privilege, because the date the individual learned of the patent is an independent fact.). Based on the deposition designations provided by the parties, the information to which the witness testified is an underlying fact, and is not an attorney-client communication. Moreover, it does not appear that Samsung has provided a privilege log to preserve this objection. See Fed. R. Civ. P. 26(b)(5)(A)(ii). 18 19 20 21 2. Apple’s Objections COURT’S RULING ON OBJECTION WITNESS AND EXHIBIT NO. Chang Dep. at Overruled. Under the rule of completeness Samsung may play the additional 157: 8-10. deposition excerpts during its examination of the witness. 22 23 24 IT IS SO ORDERED. 25 Dated: August 10, 2012 _________________________________ LUCY H. KOH United States District Judge 26 27 28 4 Case No.: 11-CV-01846-LHK AMENDED ORDER ON OBJECTIONS TO EXHIBITS

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