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

Filing 194

Declaration of Cyndi Wheeler in Support of #175 Administrative Motion to File Under Seal SAMSUNG'S OPPOSITION TO APPLE'S MOTION FOR PRELIMINARY INJUNCTION filed byApple Inc.. (Attachments: #1 Proposed Order)(Related document(s) #175 ) (Bartlett, Jason) (Filed on 8/30/2011)

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HAROLD J. MCELHINNY (CA SBN 66781)
[e-mail]
MICHAEL A. JACOBS (CA SBN 111664)
[e-mail]
RICHARD S.J. HUNG (CA SBN 197425)
[e-mail]
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: [phone]
Facsimile: [phone]

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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]
WILLIAM F. LEE (pro hac vice)
[e-mail]
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff
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,
Plaintiff,

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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,

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Case No. 11-cv-01846-LHK
DECLARATION OF CYNDI WHEELER IN
SUPPORT OF SEALING SAMSUNG’S
SUPPORTING MATERIALS AND
UNREDACTED OPPOSITION TO APPLE’S
MOTION FOR A PRELIMINARY
INJUNCTION
Date:
Time:
Place:
Judge:

Defendants.

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DECLARATION OF CYNDI WHEELER IN SUPPORT OF SEALING MATERIALS
CASE NO. 11-CV-01846-LHK
sf-3040011

Hon. Lucy H. Koh

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Pursuant to Civil L.R. 79-5(d), Plaintiff Apple Inc. submits the appended declaration of

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Cyndi Wheeler in support of Samsung’s Stipulated Administrative Motion to File Under Seal

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Pursuant to Local Rules 7-11 and 79-5 (D.N. 175), to establish that the following are sealable:

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for a Preliminary Injunction (“Samsung Opposition”);

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•

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Sara Jenkins in Support of Samsung’s Opposition to Apple’s Motion for a Preliminary

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Injunction (D.N. 179) (“Jenkins Declaration”); and

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The confidential, unredacted version of Samsung’s Opposition to Apple’s Motion

Exhibits M, N, O, LL, P, FF, HH, MM, NN, OO, and QQ1 to the Declaration of

The Declaration of Michael J. Wagner in Support of Samsung’s Opposition to

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Apple’s Motion for a Preliminary Injunction (D.N. 173) (“Wagner Declaration”); and

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Exhibit B to the same.

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DECLARATION OF CYNDI WHEELER

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I, Cyndi Wheeler, do hereby declare as follows:

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I am a Senior Patent Litigation Counsel at Apple Inc. (“Apple”). I submit this

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Declaration in support of Samsung’s Stipulated Administrative Motion to File Under Seal

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Pursuant to Local Rules 7-11 and 79-5 (D.N. 175). I have personal knowledge of the facts set

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forth in this Declaration and, if called as a witness, could and would competently testify to them.

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2.

Exhibit M to the Jenkins Declaration is an excerpt from the deposition transcript of

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Richard Lutton, which was initially designated HIGHLY CONFIDENTIAL-ATTORNEYS’

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EYES ONLY under the interim protective order. Following the review period, Apple revised its

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designations. The following portions of Exhibit M remain HIGHLY CONFIDENTIAL -

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ATTORNEYS' EYES ONLY: pages 63:1-66:25; 80:17-83:25; 136:1-17; 137:18-139:25; 252:2-

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255:4. The remainder of Exhibit M is designated CONFIDENTIAL. These excerpts contain

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highly confidential and commercially sensitive business information, including confidential

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information regarding licensing agreements and potential licensing agreements with business

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Samsung inadvertently omitted Exhibit QQ to the Jenkins Declaration in its motion to
seal. This exhibit was also filed under seal, and Apple has provided information in this
declaration demonstrating that it should remain under seal.

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DECLARATION OF CYNDI WHEELER IN SUPPORT OF SEALING MATERIALS
CASE NO. 11-CV-01846-LHK
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partners, confidential discussions between the parties relating to legal disputes, and information

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about confidential discussions with third parties relating to legal disputes.

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Exhibit N to the Jenkins Declaration is a document that was produced by Apple in

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this litigation, and used as Exhibit 5 during the deposition of Richard Lutton. It was designated

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HIGHLY CONFIDENTIAL-ATTORNEYS’ EYES ONLY under the interim protective order. It

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contains information provided under Federal Rule of Evidence 408 during confidential

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discussions between the parties prior to the filing of this lawsuit.

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4.

Exhibit O to the Jenkins Declaration is an excerpt from the deposition transcript of

Cooper Woodring. Apple has designated a portion of this excerpt on p.159 as HIGHLY

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CONFIDENTIAL-ATTORNEYS’ EYES ONLY under the interim protective order because it

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contains a discussion of Apple’s internal market research summary. This information is

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confidential and proprietary to Apple, and could be used to its disadvantage by competitors.

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5.

Exhibit LL to the Jenkins Declaration is a document that was produced by Apple

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in this litigation. It was designated HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

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under the interim protective order. It contains confidential, proprietary market research and

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analysis, including information about the competitive landscape for mobile devices. This

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business information was created at a significant cost to Apple, and could be used by Apple's

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competitors to its disadvantage, particularly because it discusses Apple's direct competitors. It

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also reflects Apple’s confidential business strategy.

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6.

Exhibit P to the Jenkins Declaration is an excerpt from the deposition transcript of

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Christopher Stringer, an Apple employee. The transcript was designated HIGHLY

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CONFIDENTIAL-ATTORNEYS’ EYES ONLY under the interim protective order. The

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excerpts reflected in Exhibit P remain confidential because they contain trade secret information

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reflecting: Apple’s product design process, specifics regarding the iPad design project, and the

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inner workings of Apple’s industrial design group. This information is highly sensitive and could

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be used by Apple’s competitors to Apple’s disadvantage.

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7.

Exhibit FF to the Jenkins Declaration is a copy of Apple Inc.’s Objections and

Responses to Samsung’s Interrogatories to Apple Relating to Apple Inc.’s Motion for Preliminary
DECLARATION OF CYNDI WHEELER IN SUPPORT OF SEALING MATERIALS
CASE NO. 11-CV-01846-LHK
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Injunction and Apple Inc.’s August 18, 2011 verification of its interrogatory responses. Apple's

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objections and responses to Samsung’s Interrogatories to Apple Relating to Apple Inc.'s Motion

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for a Preliminary Injunction were designated as Highly Confidential--Outside Attorneys' Eyes

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Only because they contain commercially sensitive information, including information regarding

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Apple's development of its patented inventions, its licensing practices and agreements with third

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parties, and its assessment of competitors’ products and market share. Disclosure of such

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commercially sensitive information to Samsung and the public is inappropriate as it would

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provide Samsung and third-party competitors with inside information about Apple's confidential

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business practices.

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8.

Exhibit HH to the Jenkins Declaration is an excerpt from the deposition transcript

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of Bas Ording, an Apple employee. The entire transcript was initially designated HIGHLY

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CONFIDENTIAL - ATTORNEYS' EYES ONLY under the interim protective order. Following

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the review period, Apple revised its designations. The following portions of Exhibit HH remain

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HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY: pages 92-102; 130-133; 136-

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140:21; 141:8-142; 144-145:10; 145:19-146:22; 147:18-148; 186:6-14; 202:17-21; 211:18-24;

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213:24-214. These sections of the transcript contain confidential information about Apple's

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product design process, including discussions of source code and internal communications that

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have also been designated HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY. This

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trade secret information could be used by Apple's competitors to its disadvantage.

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Exhibit MM to the Jenkins Declaration is a document that was produced by Apple

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in this litigation. It was designated HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

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under the interim protective order. It contains confidential, proprietary market research and

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analysis, including information about the competitive landscape for mobile devices. This

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business information was created at a significant cost to Apple, and could be used by Apple's

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competitors to its disadvantage, particularly because it discusses Apple's direct competitors. It

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also reflects Apple’s confidential business strategy.

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10.

Exhibit NN of the Jenkins Declaration is an excerpt from the deposition transcript

of Sissie Twiggs, an Apple employee. The entire transcript was initially designated HIGHLY
DECLARATION OF CYNDI WHEELER IN SUPPORT OF SEALING MATERIALS
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CONFIDENTIAL-ATTORNEYS’ EYES ONLY under the interim protective order. Following

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the review period, Apple revised its designations. Apple has designated the following portions of

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these excerpts, pages 147:15-148:3, 149:1-12, CONFIDENTIAL because they include discussion

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of Apple's strategy regarding the design and composition of its advertisements. Public disclosure

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of such commercially sensitive information is inappropriate as it would provide competitors with

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inside information about how Apple designs its advertisements, a process that Apple has invested

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significant time and money in and that Apple keeps confidential.

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Exhibit OO to the Jenkins Declaration is a document produced by Apple in this

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litigation. It was designated HIGHLY CONFIDENTIAL-ATTORNEYS’ EYES ONLY under

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the interim protective order. This document is an internal document that reflects confidential

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business communications regarding competitive strategy.

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Exhibit QQ to the Jenkins Declaration is a document that was produced by Apple

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in this litigation, and used as Exhibit 11 during the deposition of Richard Lutton. It was

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designated HIGHLY CONFIDENTIAL-ATTORNEYS’ EYES ONLY under the interim

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protective order. It contains information provided under Federal Rule of Evidence 408 during

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confidential discussions between the parties prior to the filing of this lawsuit.

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Schedules 1, 2, 3, 6, and 9 of Exhibit B to the Wagner Declaration contain

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information that comes from documents produced by Apple in this litigation. Those underlying

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documents were designated HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY under

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the interim protective order. Specifically, the numbers and figures contained in those documents,

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and reflected in Exhibit B, reflect confidential, proprietary market research and analysis,

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including information about the competitive landscape for mobile devices. This business

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information was created at a significant cost to Apple, and could be used by Apple's competitors

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to its disadvantage, particularly because it refers to Apple's direct competitors.

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Those portions of the unredacted version of the Wagner Declaration containing

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information drawn from Exhibit B to the Wagner Declaration should remain under seal for the

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same reasons as articulated above.

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DECLARATION OF CYNDI WHEELER IN SUPPORT OF SEALING MATERIALS
CASE NO. 11-CV-01846-LHK
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The portions of the confidential, unredacted version of Samsung’s Opposition to

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Apple’s Motion for a Preliminary Injunction containing information drawn from Exhibits M, N,

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O, LL, P, FF, HH, MM, NN, OO, and QQ to the Jenkins Declaration, as well as the Wagner

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Declaration and Exhibit B to the Wagner Declaration, should remain under seal for the same

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reasons articulated above.

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The requested relief is necessary and narrowly tailored to protect this confidential

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information. The exhibits described above do not contain significant relevant, non-confidential

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material.

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I declare under penalty of perjury under the laws of the United States of America that the

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forgoing is true and correct to the best of my knowledge. Executed this 30th day of August, 2011,

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in Cupertino, California.

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/s/ Cyndi Wheeler
Cyndi Wheeler

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DECLARATION OF CYNDI WHEELER IN SUPPORT OF SEALING MATERIALS
CASE NO. 11-CV-01846-LHK
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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
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Declaration. In compliance with General Order 45, X.B., I hereby attest that Cyndi Wheeler has
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concurred in this filing.
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Dated: August 30, 2011

By:

/s/ Jason R. Bartlett
Jason R. Bartlett

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DECLARATION OF CYNDI WHEELER IN SUPPORT OF SEALING MATERIALS
CASE NO. 11-CV-01846-LHK
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