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

Filing 23

OPPOSITION to ( #12 MOTION to Shorten Time for Briefing and Hearing on Plaintiff's Motion to Expedite Discovery ) filed by Samsung Electronics America, Inc., Samsung Telecommunications America, LLC. (Maroulis, Victoria) (Filed on 4/25/2011) Modified text on 5/3/2011 (dhm, COURT STAFF).

1 QUINN EMANUEL URQUHART & SULLIVAN, LLP
Charles K. Verhoeven (Cal. Bar No. 170151)
2 [e-mail]
50 California Street, 22nd Floor
3 San Francisco, California 94111
Telephone: [phone]
4 Facsimile: [phone]
5 Kevin P.B. Johnson (Cal. Bar No. 177129)
[e-mail]
6 Victoria F. Maroulis (Cal. Bar No. 202603)
[e-mail]
th
7 555 Twin Dolphin Drive 5 Floor
Redwood Shores, California 94065
8 Telephone: [phone]
Facsimile: [phone]
9
Edward DeFranco (Cal. Bar No.165596)
10 [e-mail]
51 Madison Avenue, 22nd Floor
11 New York, New York 10010
Telephone: [phone]
12 Facsimile: [phone]
13 Michael T. Zeller (Cal. Bar No. 196417)
[e-mail]
14 865 S. Figueroa St., 10th Floor
Los Angeles, California 90017
15 Telephone: [phone]
Facsimile: [phone]
16
Attorneys for Samsung Electronics America, Inc.
17 and Samsung Telecommunications America LLC
18
UNITED STATES DISTRICT COURT

19

NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION

20
21

APPLE INC., a California corporation,
Plaintiff,

22
23

vs.

SAMSUNG ELECTRONICS CO., LTD., a
24 Korean business entity; SAMSUNG
ELECTRONICS AMERICA, INC., a New
25 York corporation; SAMSUNG
TELECOMMUNICATIONS AMERICA,
26 LLC, a Delaware limited liability company,
27

CASE NO. 4:11-cv-01846-LHK
SAMSUNG’S OPPOSITION TO
PLAINTIFF’S MOTION TO SHORTEN
TIME FOR BRIEFING AND HEARING
ON PLAINTIFF’S MOTION TO
EXPEDITE DISCOVERY
Date: April 26, 2011
Time:
Courtroom 4, 5th Floor
Judge: Hon. Lucy H. Koh

Defendants.

28
03498.51845/4109427.1

Case No. 4:11-cv-01846-LHK
SAMSUNG’S OPPOSITION TO APPLE’S MOTION TO SHORTEN TIME

1

Samsung Electronics America, Inc. (“SEA”) and Samsung Telecommunications America,

2 LLC (“STA”) (collectively “Samsung”) respectfully submit this Opposition to Plaintiff Apple,
3 Inc.’s (“Apple”) Motion to Shorten Time for Briefing and Hearing on Plaintiff’s Motion to
4 Expedite Discovery (D.N. 12) (“Motion to Shorten Time”). No Samsung entity has answered or
5 otherwise responded to the Complaint. Each Samsung entity makes a limited special appearance
6 in order to oppose Apple’s Motion to Shorten Time and reserves all jurisdictional objections.
7

MEMORANDUM OF POINTS AND AUTHORITIES

8 I.

Introduction

9

Before it even served or provided Samsung with courtesy copies of its lawsuit, Apple

10 launched a one-sided campaign to expedite discovery into Samsung’s unreleased Galaxy products.
11 Not only does Apple wish to deprive Samsung of the common discovery safeguards afforded to all
12 litigants, but it also seeks to cut in half the already short amount of time Samsung has to defeat
13 Apple’s attempts to gain this early discovery. The Court should deny Apple’s Motion to Shorten
14 Time. The prejudice Apple alleges it might suffer if the Court does not shorten time on its Motion
15 to Expedite Discovery (D.N. 10) is highly questionable, and of Apple’s own making. By contrast,
16 Samsung will suffer real and substantial prejudice if Apple’s Motion to Shorten Time is granted,
17 because it would be deprived of a meaningful opportunity to oppose Apple’s Motion to Expedite
18 Discovery. The Court should not allow Samsung to suffer such prejudice, especially where the
19 discovery Apple requests would result in Apple’s sneak peek into its competitor’s new products.
20 Furthermore, Apple’s motion is procedurally improper under this Court’s Local Rules because
21 Apple failed to deliver the motion on the day Apple filed it and because Apple failed to meet and
22 confer with Samsung prior to filing.
23 II.

Argument

24

A.

25

Civil Local Rule 6-3(a)(3) expressly requires that Apple identify “the substantial harm or

Apple Does Not Sufficiently Articulate the Need for the Shortened Schedule.

26 prejudice that would occur if the Court did not change the time.” Apple fails to make such a
27 showing. The alleged urgency underlying Apple’s Motion to Shorten Time is highly questionable.
28 Apple claims it will suffer imminent harm if Samsung’s Galaxy products are introduced into the
03498.51845/4109427.1

Case No. 4:11-cv-01846-LHK
-1SAMSUNG’S OPPOSITION TO APPLE’S MOTION TO SHORTEN TIME

1 U.S. market. (Mot. to Shorten Time (D.N. 12) at 1.) Apple’s belief that these products are about
2 to be introduced into the U.S. market is based upon various “[p]ress accounts.” (Id., citing Bartlett
3 Shorten Decl. (D.N. 13) at ¶ 5, citing Bartlett Expedite Decl. (D.N. 11) at Exs. 1-2 and 4-8.) Most
4 of those press accounts issued from mid-February to early March of this year. (Bartlett Expedite
5 Decl. (D.N. 11) at Exs. 1-2 and 4-8.) Yet Apple did not file its complaint in this action until April
6 15, 2011. (See D.N. 1.) If Apple were concerned about “imminent harm,” it would have filed its
7 complaint months earlier, when these initial press accounts issued. Or it would have filed a
8 motion for a preliminary injunction, or a temporary restraining order. But Apple did none of these
9 things. Instead, Apple delayed filing its complaint for weeks, and now asks this Court to shorten
10 the period during which Samsung may prepare an opposition to Apple’s Motion to Expedite
11 Discovery – which seeks extensive, invasive, and unwarranted discovery into Samsung’s
12 unreleased products. (Mot. to Expedite Disc. (D.N. 10) at 13.) This Court should not allow Apple
13 to create “imminent harm” to itself by delaying the filing of its complaint, and then rely on that
14 prejudice to require Samsung less time to oppose that discovery than the Local Rules would
15 otherwise allow.
16

Nor does Apple argue – because it cannot – that there is a risk the requested information

17 will disappear before the normal course of discovery, and before Samsung has a full and fair
18 opportunity to be heard on its objections to the substance of the requested discovery. Wangson
19 Biotech. Group, Inc. v. Tan Tan Trading Co., Inc., No. C 08-04212 SBA, 2008 WL 4239155, *7
20 (N.D. Cal. Sept. 11, 2008) (“[M]ovants are expected to provide evidence supporting their need,
21 such as a custodian’s practice of destroying records . . . [or] spoilage or destruction will occur in
22 the due course of business activities”) (internal citations omitted). In short, Apple’s perceived
23 urgency does not constitute sufficient grounds to deprive Samsung of the time it needs to properly
24 object to Apple’s attempt to obtain expedited discovery.
25

B.

Samsung Will Be Severely Prejudiced by the Shortened Schedule.

26

Requiring Samsung to respond to Apple’s Motion to Expedite Discovery within the

27 shortened period Apple seeks would essentially deny Samsung the opportunity to fully present the
28 prejudice it will suffer. The Court should not deprive Samsung of that opportunity, especially
03498.51845/4109427.1

Case No. 4:11-cv-01846-LHK
-2SAMSUNG’S OPPOSITION TO APPLE’S MOTION TO SHORTEN TIME

1 considering what is at stake: no less than Apple’s advance preview of its competitors’ valuable
2 new Galaxy products. (See Compl. (D.N. 1) at ¶ 4 (alleging that Galaxy mobile phones and
3 Galaxy Tab computer tablet products compete with Apple’s iPhone and iPad); Mot. to Expedite
4 Disc. (D.N. 10) at 13 (itemizing Galaxy products (and others) on which Apple seeks discovery).)
5

Further, in order to oppose Apple’s Motion to Expedite Discovery, SEA and STA will

6 have to coordinate with Korea-based Samsung Electronics Co., Ltd. (“SEC”). SEC has not yet
7 been served with the complaint in this action or been delivered by Apple a copy of its Motion to
8 Expedite Discovery. (See Bartlett Expedite Decl. (D.N. 11) at ¶ 13; Certificate of Service (D.N.
9 14) and Amended Certificate of Service (D.N. 16) (indicating that only Samsung Electronics
10 America, Inc. and Samsung Telecommunications America, LLC were delivered a copy of Apple’s
11 motion).) Apple’s failure to serve SEC with its complaint weighs against granting expedited
12 discovery and shortening the time to respond to Apple’s motion. Qwest Commc’ns Int’l, Inc. v.
13 WorldQuest Networks, Inc., 213 F.R.D. 418, 420 (D. Colo. 2003) (noting that failure to serve
14 complaint on defendant weighed against expedited discovery).
15

Moreover, Samsung and its counsel have not had a meaningful opportunity to analyze the

16 extent of the prejudice they would suffer if subjected to the broad discovery Apple seeks. An
17 analysis of that prejudice is necessary to oppose Apple’s Motion to Expedite Discovery, since
18 courts in the Ninth Circuit use the “good cause” standard to determine whether expedited
19 discovery should be granted. Wangson, 2008 WL 4239155 at *7. Under that standard, the
20 moving party is entitled to discovery only where “the need for expedited discovery, in
21 consideration of the administration of justice, outweighs the prejudice to the responding party.”
22 Id.
23

Here, Samsung and its counsel have to coordinate a critical competitive business issue

24 across the Pacific Ocean and eleven time zones with a parent entity that has not yet been served
25 with the Complaint in order to determine the prejudice Apple’s Motion to Expedite Discovery will
26 impose upon it. Samsung would be severely prejudiced if required to oppose Apple’s Motion to
27 Expedite Discovery on a shortened schedule.
28
03498.51845/4109427.1

Case No. 4:11-cv-01846-LHK
-3SAMSUNG’S OPPOSITION TO APPLE’S MOTION TO SHORTEN TIME

1

C.

Apple’s Motion Violates Civil Local Rules 6-3(a) and 6-3(b).

2

Apple’s Motion to Shorten Time also violates the Civil Local Rules, and should be denied

3 on that basis alone. First, Apple failed to comply with the service provision of the applicable rule.
4 Civil Local Rule 6-3(b) provides: “A party filing a motion to enlarge or shorten time must deliver
5 a copy of the motion, proposed order and supporting declaration to all other parties on the day the
6 motion is filed.” (Emphasis added.) This Rule requires that all parties be in actual possession of
7 the motion on the same day it is filed because the 4-day response period is so brief.1
8

Apple admits it did not comply with this rule. While the ECF stamp of the Motion to

9 Shorten Time indicates that Apple filed the motion on April 19, 2011, the declarations of Apple’s
10 counsel and process server establish that it did not deliver the Motion to Shorten Time to SEA or
11 STA until April 20. (Decl. of Jason R. Bartlett In Support of Pl.’s Mot. to Expedite Disc.
12 (“Bartlett Expedite Decl.”) (D.N. 11) at ¶ 13; Certificate of Service (D.N. 14); Amended
13 Certificate of Service (D.N. 16).)
14

Second, Apple admits that it has made no attempt to stipulate with any of the Samsung

15 entities to its requested time change, as is required by Civil L.R. 6-3(a)(2). Counsel for Apple
16 states, “Given the urgent nature of Apple’s Motion to Expedite Discovery, I have not yet contacted
17 Samsung about obtaining a stipulation to Apple’s Motion to Shorten Time.” (Decl. of Jason R.
18 Bartlett In Support of Pl.’s Mot. to Shorten Time for Briefing and Hearing on Pl.’s Mot. to
19 Expedite Disc. (D.N. 13) (“Bartlett Shorten Decl.”) at ¶ 2.) Apple cites no authority for the
20 proposition that the alleged urgency of a party’s underlying motion relieves it of the requirement
21
22
23
24
25
26
27
28
03498.51845/4109427.1

1

It is significant that Civil Local Rule 6-3(b) uses the word “deliver” rather than “serve.”
Civil Local Rule 6-3(b) cross-references to Civil Local Rule 5-5(a)(2) regarding time and methods
for “delivery” of papers. Civil Local Rule 5-5(a)(2), in turn, provides that when a “Local Rule
requires delivery of a pleading or paper,” that “delivery” cannot be made by sending the document
to the party by mail. Civil Local Rule 5-5(a)(1) further explains that “delivery” means that the
document was “actually delivered.” While Civil Local Rule 5-5(b) requires that papers be
electronically served in cases subject to ECF, Apple did not accomplish electronic service on SEA
or STA, either. Apple has offered no evidence that the Samsung entities were “ECF Users” on the
date that Apple filed its Motion to Shorten Time. Thus, Apple was required to deliver a paper
copy of its Motion to Shorten Time to SEA and STA on the day that it was filed. See General
Order No. 45 IX.C.2 and Civil L.R. 6-3(b) & 5-5(a)(2).

Case No. 4:11-cv-01846-LHK
-4SAMSUNG’S OPPOSITION TO APPLE’S MOTION TO SHORTEN TIME

1 that it seek a stipulation to the time change it wants. Regardless of whether Apple knew whether
2 Samsung was represented, Apple could have reached out to the parties themselves to seek a
3 stipulation. It did not.
4 III.

Conclusion

5

For the foregoing reasons, the Court should DENY Plaintiff’s Motion to Shorten Time for

6 Briefing and Hearing on Plaintiff’s Motion to Expedite Discovery (D.N. 12). The Court should
7 instead ORDER that briefing on Plaintiff’s Motion to Expedite Discovery (D.N. 10) shall proceed
8 along the normal schedule prescribed by the Local Rules.
9
10
11 DATED: April 25, 2011
12

QUINN EMANUEL URQUHART &
SULLIVAN, LLP

13
14
15
16
17
18

By /s/ Victoria F. Maroulis
Charles K. Verhoeven
Kevin P.B. Johnson
Victoria F. Maroulis
Edward DeFranco
Michael T. Zeller
Attorneys for SAMSUNG ELECTRONICS
AMERICA, INC., and SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC

19
20
21
22
23
24
25
26
27
28
03498.51845/4109427.1

Case No. 4:11-cv-01846-LHK
-5SAMSUNG’S OPPOSITION TO APPLE’S MOTION TO SHORTEN TIME