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

Filing 1662

ORDER Regarding Objections to Sittler and Benner. Signed by Judge Lucy H. Koh on 8/10/2012. (lhklc2, COURT STAFF) (Filed on 8/10/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
For the Northern District of California

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APPLE, INC., a California corporation,

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Plaintiff,
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v.
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SAMSUNG ELECTRONICS CO., LTD., A
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Korean corporation; SAMSUNG
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ELECTRONICS AMERICA, INC., a New York )
corporation; SAMSUNG
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TELECOMMUNICATIONS AMERICA, LLC, )
a Delaware limited liability company,
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Defendants.
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Case No.: 11-CV-01846-LHK
ORDER RE: OBJECTIONS TO SITTLER
AND BENNER

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After reviewing the parties’ briefing, considering the record in the case, and balancing the
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considerations set forth in Federal Rule of Evidence 403, the Court rules on Samsung’s objections
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as follows:
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A. Edward Sittler
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1. Samsung’s Objections
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EXHIBIT
NUMBER
Sittler: Direct
Testimony and
APLNDCY0000408232236

COURT’S RULING ON OBJECTION
Sustained. Sittler is a legal assistant to Apple’s attorneys at Morrison & Foerster.
Sittler would testify on direct examination that he purchased the Galaxy S i9000,
Galaxy Ace, and Galaxy SII i9000 in the United States from third party online
retailers. APLNDC-Y0000408232-236 are Sittler’s purchase receipts.
Whether Samsung sold the Galaxy S i9000, Galaxy Ace, and Galaxy SII i9000 in
the United States is at issue in the case. See, e.g., ECF No. 1267 at 2. Samsung
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Case No.: 11-CV-01846-LHK
ORDER ON OBJECTIONS TO EXHIBITS

witness Denison testified that Samsung has not sold these phones in the United
States. See August 6, 2012 Trial Tr. at 947:6-948:13; 961:15-19.

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Sittler was never disclosed by Apple in its initial disclosures and only appeared
on the witness list on July 6. Moreover, Sittler’s testimony is that he purchased
the products from third parties. Apple never disclosed its theory that Samsung
induced third parties to infringe in Apple’s infringement contentions.

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Finally, even if Sittler’s testimony was not precluded for the reasons stated
above, Sittler’s testimony would be precluded pursuant to FRE 403. This
testimony is of limited probative value to establishing that Samsung sold the
accused devices in the United States and would confuse the issues or unfairly
prejudice Samsung. Accordingly, Sittler’s testimony and his receipts are
inadmissible.

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B. Tim Benner

United States District Court
For the Northern District of California

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1. Samsung’s Objections
EXHIBIT
NUMBER
PX69

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PX89

COURT’S RULING ON OBJECTION
Overruled. Although Apple only added this exhibit to its exhibit list on August
5, 2012, this late addition comes as a result of Samsung dropping its ‘604 patent
just two hours before the exhibit lists were due. Because of this late change by
Samsung, Apple was forced to remove the exhibits that were originally marked
PX69 and PX89, as those exhibits related to the ‘604 patent, and to substitute in
replacement exhibits after the exhibit list deadline. Though Apple made this
substitution later than the Court would have liked, Apple did provide Samsung
with sufficient notice as to its intent to use PX69 so that Samsung was not
prejudiced.
Additionally, Samsung’s Rule 403 argument is unpersuasive. Samsung argues
that PX69, a Samsung survey reflecting the percentage of respondents who
identified each of a list of factors as important to their phone purchasing
decision, will be confusing to the jury. In particular, Samsung argues that it will
mislead the jury into thinking that design is the most important consideration in
handset purchases when, in fact, the survey respondents were not asked to rank
the importance of features to their decision-making. The Court is not convinced
that the risk of jury confusion substantially outweighs the probative value of this
exhibit. If Mr. Benner does not sufficiently explain what the results in PX69
show on direct examination, Samsung is free to seek clarification on crossexamination.
Overruled. Although Apple only added this exhibit to its exhibit list on August
5, 2012, this late addition comes as a result of Samsung dropping its ‘604 patent
just two hours before the exhibit lists were due. Because of this late change by
Samsung, Apple was forced to remove the exhibits that were originally marked
PX69 and PX89, as those exhibits related to the ‘604 patent, and to substitute in
replacement exhibits after the exhibit list deadline. Though Apple made this
substitution later than the Court would have liked, Apple did provide Samsung
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Case No.: 11-CV-01846-LHK
ORDER ON OBJECTIONS TO EXHIBITS

with sufficient notice as to its intent to use PX69 so that Samsung was not
prejudiced.

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The Court already explicitly held, in denying-in-part Samsung’s motion in
limine #2, that this survey is admissible for the purposes of showing intent,
willfulness, and knowledge. See ECF 1267 ¶ 12. The Court sees no reason to
depart from its earlier ruling. Moreover, the fact that Samsung sought to
exclude this evidence in limine indicates that Samsung was not unfairly
prejudiced or surprised by Apple’s August 5 addition of PX89 to its exhibit list.

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United States District Court
For the Northern District of California

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2. Apple’s Objections
COURT’S RULING ON OBJECTION

EXHIBIT
NUMBER
Benner Depo.
Transcript at
36:16-19;
36:21-37:1;
38:8-11; 39:23; 40:5-7;
40:10-25;
42:20-23; 43:111; 43:13-24

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Overruled-in-part and sustained-in-part. Samsung has designated this testimony
to counter Apple’s designation of 37:24-38:2, and Apple objects that it is
unnecessary. The Court finds that the testimony at 36:16-19 and 36:21-37:1 is
admissible under Rule 106 as it clarifies Mr. Benner’s understanding of the word
“important” in the context of the portion of the deposition that Apple has
designated. Additionally, the Court finds that the testimony at 40:5-7; 40:10-25;
42:20-23; 43:1-11; 43:13-24 are admissible under Rule 106 as they explain the
single survey that Mr. Benner has identified as showing that physical appearance
of a smartphone is of lesser importance to consumer purchasing decisions—
testimony which completes the picture painted by Apple’s designation of 37:2438:2, in which Mr. Benner says he cannot name a single survey which shows that
physical appearance of a smartphone is unimportant to consumer purchasing
behavior.

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Benner Depo.
Transcript at
147:14-19;
147:23-148:13

Finally, the Court finds that, as currently designated, 38:8-11 and 39:2-3 are
incomplete. The answer at 39:2-3 is to a differently worded question than the
question asked at 38:8-11. If Samsung seeks to include these passages in its
deposition designation under Rule 106, it must also include the question asked at
38:22-25. Otherwise, this designation will not serve the purpose of Rule 106 and
will run afoul of Rule 403. A party seeking to introduce a counter designation
for completeness must do so during its own examination time.
Overruled. Samsung has designated this testimony to counter Apple’s
designation of 145:7-146:1, and Apple objects that it is unnecessary. The Court
finds that this designation is admissible under Rule 106 as it clarifies Mr.
Benner’s testimony regarding a survey showing consumer confusion when
shown a Samsung Galaxy Tab still photo advertisement. The portions of Mr.
Benner’s deposition designated by Samsung counter this testimony by providing
context for the confusion, explaining, for instance, that the survey was conducted
at a time when the iPad had become firmly established in the market, so, in his
opinion, it was natural for consumers to assume all tablets were iPads. A party
seeking to introduce a counter designation for completeness must do so during its
own examination time.

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Case No.: 11-CV-01846-LHK
ORDER ON OBJECTIONS TO EXHIBITS

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IT IS SO ORDERED.

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Dated: August 10, 2012

_________________________________
LUCY H. KOH
United States District Judge

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United States District Court
For the Northern District of California

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Case No.: 11-CV-01846-LHK
ORDER ON OBJECTIONS TO EXHIBITS