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

Filing 224

REPLY (re #205 MOTION to Compel (Redacted) MOTION to Compel (Redacted) MOTION to Compel (Redacted) ) Redacted filed bySamsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Maroulis, Victoria) (Filed on 9/12/2011)

1 QUINN EMANUEL URQUHART & SULLIVAN, LLP
Charles K. Verhoeven (Cal. Bar No. 170151)
 [e-mail]
50 California Street, 22nd Floor
 San Francisco, California 94111
Telephone: [phone]
 Facsimile: [phone]
 Kevin P.B. Johnson (Cal. Bar No. 177129)
[e-mail]
 Victoria F. Maroulis (Cal. Bar No. 202603)
[e-mail]
 555 Twin Dolphin Drive 5th Floor
Redwood Shores, California 94065
 Telephone: [phone]
Facsimile: [phone]

Michael T. Zeller (Cal. Bar No. 196417)
 [e-mail]
865 S. Figueroa St., 10th Floor
 Los Angeles, California 90017
Telephone: [phone]
 Facsimile: [phone]
 Attorneys for SAMSUNG ELECTRONICS
CO., LTD., SAMSUNG ELECTRONICS
 AMERICA, INC. and SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC



UNITED STATES DISTRICT COURT



NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION

 APPLE INC., a California corporation,



SAMSUNG’S REPLY IN SUPPORT OF
ITS MOTION TO COMPEL

Plaintiff,



CASE NO. 11-cv-01846-LHK

vs.

 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,

Defendants.


Date: Tuesday, September, 13, 2011
Time: 10:00 a.m.
Courtroom: 5, 4th Floor
Honorable Paul S. Grewal




Case No. 11-cv-01846-LHK
SAMSUNG’S REPLY IN SUPPORT OF ITS MOTION TO COMPEL

TABLE OF CONTENTS

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Page

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4 I. 

INTRODUCTION ................................................................................................................. 1 

5 II. 

ARGUMENT ........................................................................................................................ 2 

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A. 

Samsung’s Discovery Requests Are Narrowly Tailored According To The
Court’s Order............................................................................................................. 2 

B. 

The Court Should Compel Apple To Produce
During The Preliminary Injunction Phase ................................................................. 2 

C. 

The Court Should Compel Apple To Produce
.......................................................................................................................... 5 

D. 

The Court Should Compel Further Answers To Samsung’s Interrogatory
Nos. 1, 3, and 6. ......................................................................................................... 9 

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12 III. 

CONCLUSION ................................................................................................................... 11 

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MEMORANDUM OF POINTS AND AUTHORITIES
I.

INTRODUCTION
Apple is obligated to produce the relevant and responsive documents and information

Samsung has repeatedly requested. But Apple has side-stepped its obligations, which it
voluntarily assumed in seeking a preliminary injunction, by offering a series of deficient, and even
frivolous, excuses, forcing Samsung to seek relief from the Court to get basic information and
documents that should have been produced months ago.
under normal circumstances.

Apple’s conduct would be inappropriate

It is egregious here where Apple has filed a preliminary injunction

motion that seeks to interfere with its main competitor’s products and the Court has made clear
that it expects the parties to brief the issues as fully as possible so that a fair decision may be
reached.
Specifically, Apple still refuses to produce

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And Apple still refuses to provide Samsung with simple answers to its proper questions
about when Apple first believed its asserted patents were being infringed. Not only does Apple
misconstrue Samsung’s interrogatories, but it also misreads controlling case law that establishes
the relevance of Samsung’s interrogatories to rebut Apple’s claim of irreparable harm. Apple
continues to give evasive non-answers and mistakenly criticizes Samsung’s interrogatories as
asking for sweeping responses that Samsung has never requested.
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1 II.

ARGUMENT

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A.

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Samsung’s Discovery Requests Are Narrowly Tailored According To The Court’s
Order.

Throughout its opposition, Apple purports to rely on this Court’s order setting the
parameters of discovery for the preliminary injunction phase.

(Opp. at 1, 6, 11, 13, 14.) Indeed,

whenever Apple faces a discovery request it does not like, it reflexively proclaims that the request
violates the Court’s July 18, 2011 order to keep discovery “narrowly tailored” to the preliminary
injunction motion. (D.N. 115.) Apple distorts the Court’s order. In denying Apple’s motion
for expedited — and thus more limited — discovery, Judge Koh stated that “the Court agrees with
Samsung that Apple’s motion presents complex issues of patent infringement, validity, and
construction, and seeks an extraordinary form of relief.” (D.N. 115 at 2 (emphasis added).)
Consequently, “the Court is inclined to provide the parties an opportunity to brief the issues as
fully as possible, thereby ensuring that the Court has sufficient information to make an informed
determination of the motion.” (Id. (emphasis added).) Furtherm ore, as the Court’s order itself
provides, “narrowly tailored” means that “[t]he discovery sought . . . must be relevant to the
preliminary injunction motion and may include discovery related to prior art, depositions of
declarants, and other discovery related to infringement and validity issues.”

(D.N. 115 at 2.)

“Narrowly tailored,” therefore, does not mean the parties can engage in self-help, picking and
choosing only those relevant documents and responses that are easiest to produce or most helpful
to their case. It includes everything relevant to address the issues Apple has put into play. Far
from being authorized by the Court’s order, Apple’s refusal to produce that discovery is contrary
to both the letter and spirit of the Court’s rulings.
B.

The Court Should Compel Apple To Produce
Preliminary Injunction Phase

During The

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Rather, it sought and obtained a series of patents from the U.S. Patent Office

11 that it now seeks to enforce against Samsung on a preliminary injunction motion. Therefore, it
12 put at issue all matters relevant to the conception of these designs as well as their patentability.
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Apple voluntarily brought a preliminary injunction motion months ago and

14 should have identified, reviewed and produced these relevant documents already.
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Whatever purported burden Apple now faces in reviewing these documents is a

21 creature of its own misunderstanding and delay.
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Nor can any

24 supposed burden be considered undue, given that Apple is seeking to enjoin flagship Samsung
25 products in the multi-billion dollar mobile device market.
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5 Moreover, Apple has never provided Samsung with a date by which it will produce
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Samsung has already spent the last month and a half

10 making these reasonable requests. (Mot at 3.) It should not have to wait any longer.

Samsung

11 is entitled to an order from this Court setting a date certain by which the documents will be
12 produced — and on a timetable that ensures their production in sufficient time before the
13 preliminary injunction hearing on October 13, 2011.
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C.

The Court Should Compel Apple To Produce

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17 Apple.

Indeed, Judge Koh has already rejected this argument from
In an earlier ruling on whether Apple had to produce its unreleased products to Samsung

18 after Samsung was ordered to produce its own to Apple, Judge Koh stated that “the Court agrees
19 with Samsung that the strict protective order required by the Court and stipulated to by the parties
20 would provide adequate protection to both parties.” (D.N. 79 at 10).

Judge Koh ordered this

21 even though “Apple maintains a strict policy of not commenting on future products[,] takes
22 extensive measures to protect information about its unreleased products . . . [and] closely guards
23 this information as a trade secret.” (Id.) And most importantly, Judge Koh ruled that “[t]he
24 Court will not assume that outside counsel and experts who agree to strict confidentiality will
25 nevertheless leak information about Apple’s products.” ( Id.)

Apple’s attempt to rehash this

26 rejected argument should be rejected yet again.
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That is no reason why the Court

6 should alter its ruling that the protective order is sufficient to protect Apple’s highly confidential
7 information.

(D.N. 79 at 10.) Indeed, the precise reason there is a protective order in this or

8 any other case is to allow relevant secret documents and information such as this to be produced in
9 strict confidence. See, e.g., Putnam v. Eli Lilly and Co., 508 F. Supp. 2d 812, 814 (C.D. Cal.
10 2007); A. Farber and Partners, Inc. v. Garber, 234 F.R.D. 186, 191-92 (C.D. Cal. 2006).
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14 (iPhone 4 CAD drawings available at https://devimages.apple.com.edgekey.net/resources/cases/
15 dimensions/iPhone-4-CDMA-model.pdf (Jenkins Dec. ¶ 23 & Ex. Q).)
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(Opp. at 10 (citing OKI Am., Inc.

18 v. Advanced Micro Devices, Inc., No. C 04-3171 CRB (JL), 2006 U.S. Dist. LEXIS 66441, at *12
19 (N.D. Cal. Aug. 31, 2006).) That case, however, gives only a cursory description of the
20 confidential files at issue and fails to mention a host of important details. For example, there is
21 no mention of how many files were involved, the nature of the review, whether it was effectively
22 possible for the adverse party to review the files under the protocol set up by the plaintiff, or any
23 other useful information.

OKI Am. at *12.

there is no evidence that the

24 defendant in OKI made even a single, good faith attempt to review the files under the parameters
25 demanded by the plaintiff. Id.

Thus, there is no possible way Apple could know whether the

26 discovery request in OKI was “substantively identical” to the one Samsung has made.

(Opp. at

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It could easily take much longer to do an in-depth review.

12 Samsung cannot be faulted for not wasting its time reviewing files under these restraints.
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D.

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The Court Should Compel Further Answers To Samsung’s Interrogatory Nos. 1, 3,
and 6.

Samsung’s motion to compel a further response to Interrogatory No. 1 is direct and clear.
It seeks the “date [Apple] first became aware” of any Samsung products allegedly infringing the
patents at issue. (Mot. at iii, 11.) Despite this simple relevant request, Apple has again refused
to supplement its evasive

language provided in its response. (Mot. at 11;

Opp. at 12.)

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Apple’s evasiveness on this question is telling.

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Noticeably, Apple fails to dispute that the basic information Samsung has requested is
relevant, simple to produce and within Apple’s current knowledge.
instead of answering the
interrogatory, which specifically applies to any and all Samsung products that Apple believes to be
infringing. (Opp. at 12; Mot. at 11.) As Samsung showed before, if Apple believed earlier
Samsung products infringed the same patents but did nothing to stop it, Apple must not have
believed it would be irreparably harmed.

(Mot. at 11.) Q uite tellingly, Apple nowhere disputes

this.
Samsung’s requests for further responses to Interrogatory Nos. 3 and 6 are similarly
reasonable, relevant, and simple.
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As Samsung explained in its

2 moving papers, these interrogatories merely seek the date when Apple first became aware of other
3 products that include the allegedly infringing features and how Apple proceeded with that
4 knowledge. (Mot. at 12.) As with Interrogatory No. 1, this information is directly relevant to
5 Apple’s claim of irreparable harm and is currently known to Apple. If Apple believed other
6 companies were infringing the patents-in-suit and did nothing about it, it must not have believed it
7 was being irreparably harmed.

(Mot. at 12 (quoting Polymer Techs. v. Bridwell, 103 F.3d 970,

8 974 (Fed. Cir. 1996).)
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Apple misconstrues these simple and relevant requests as requiring Apple to “develop

10 infringement contentions regarding the entire universe of phones and tablets.” (Opp. at 13.)
11 This is untrue. Samsung has never asked, intended, or expected Apple to investigate “the entire
12 universe” of products that it might possibly believe to be infringing. Instead, Samsung simply
13 seeks relevant information, to which it is entitled, of when Apple first believed the patents at issue
14 in the preliminary injunction motion were being infringed by other companies.

It should not be

15 hard for Apple to produce this information.
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In refusing to answer these interrogatories, Apple misreads Polymer Techs. v. Bridwell.

17 According to Apple, the date at which it first became aware of other alleged infringers is irrelevant
18 to its claim of irreparable harm because according to Polymer Techs a “patentee does not have to
19 sue all infringers at once” and “[p]icking off one infringer at a time is not inconsistent with being
20 irreparably harmed.” (Opp. at 13 (quoting Polymer Techs., 103 F.3d at 975).)

Samsung has

21 never asserted that Apple was required to sue all alleged infringers at once. Instead, Samsung
22 relies on the separate and equally valid proposition in Polymer Techs that “unreasonable delay in
23 bringing suit” and “indifference to enforcing one’s patent” are “relevant to an analysis of
24 irreparable harm.” (Mot. at 12 (quoting Polymer Techs, 103 F.3d at 974).) These are not
25 “opposite proposition[s]” as Apple wrongly posits. (Opp. at 13 (emphasis omitted).)

It is

26 wholly consistent to allow a plaintiff to sue alleged infringers one at a time to avoid irreparable
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