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

Filing 2746

ORDER ON SAMSUNGS OBJECTIONS TO APPLES EXHIBITS AND DEPOSITION DESIGNATIONS WITH RESPECT TO BENNER, DENISON, KIM, LEE, LUCENTE, RYU, SHERMAN, WANG, AND BUCKLEY, ECF No. 2727. Signed by Judge Lucy Koh on 11/14/2013. (lhklc2, COURT STAFF) (Filed on 11/14/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN JOSE DIVISION

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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 ON SAMSUNG’S
OBJECTIONS TO APPLE’S EXHIBITS
AND DEPOSITION DESIGNATIONS
WITH RESPECT TO BENNER,
DENISON, KIM, LEE, LUCENTE, RYU,
SHERMAN, WANG, AND BUCKLEY

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Samsung has filed objections to Apple’s exhibits and deposition designations. ECF No.
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2727. Apple has filed a response. ECF No. 2726. After reviewing the parties’ briefing, considering
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the record in the case, and balancing the considerations set forth in Federal Rule of Evidence 403,
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the Court rules on Samsung’s objections as follows:
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A. Benner
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EXHIBIT
NUMBER
PX 3034

COURT’S RULING ON OBJECTION
Sustained. In the 2012 trial, Apple successfully objected to Samsung introducing
evidence of its “Next Big Thing” campaign as irrelevant. ECF No. 1511 at 1-2.
PX 3034 concerns the “Impact Measured” of that very campaign. Apple cannot
now seek to introduce an exhibit which discusses the very campaign Apple
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Case No.: 11-CV-01846-LHK
ORDER ON SAMSUNG’S OBJECTIONS TO APPLE’S EXHIBITS AND DEPOSITION DESIGNATIONS WITH
RESPECT TO BENNER, DENISON, KIM, LEE, LUCENTE, RYU, SHERMAN, WANG, AND BUCKLEY

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PX 41, PX 179

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Samsung argues for exclusion of both exhibits because they were previously
excluded and because Benner lacks personal knowledge of them. The exhibits
were in fact previously excluded in the 2012 trial, but only for purposes of
admission during Dr. Kare’s testimony, because Dr. Kare had not included them
in her expert report. ECF No. 1563 at 4 (“Because these . . . exhibits were not
disclosed in Kare’s expert reports, they are beyond the scope of her expert
opinion and may not be used in her direct examination.”) The Court’s prior
ruling does not prohibit Apple from using these exhibits during cross
examination of another witness, Benner.

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United States District Court
For the Northern District of California

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Samsung’s personal knowledge objection, however, is overruled without
prejudice. To the extent that Apple cannot establish at trial that Benner has
personal knowledge of these exhibits, Samsung is free to re-raise its Rule 602
personal knowledge objection. Apple claims it will address the Rule 602
objection with “testimony from Benner” at trial. ECF No. 2726 at 1.

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B. Denison
EXHIBIT
NUMBER
PX 38, PX 34

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Sustained in part and overruled in part. The Court notes that it construes
Samsung’s “Rule 6031 foundation” objection, ECF No. 2727 at 1, as either a
Rule 602 personal knowledge objection or a foundation objection to the
admission of both exhibits.

In the retrial, foundation is no longer an issue for the parties’ documents because
each party has stipulated to the authenticity of their own documents. See ECF
No. 1205; ECF No. 2736 at 2.

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PX 34: Sustained. Denison’s trial testimony makes clear that he has no personal
knowledge of PX 34. ECF No. 1610 at 832-33. PX 34 is an internal Samsung
document called “Samsung Feasibility Review” which notes that the iPhone is

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COURT’S RULING ON OBJECTION

As a preliminary matter, while Samsung claims that the Court previously
sustained Samsung’s “Rule 603 foundation objection” to both exhibits, ECF No.
2727 at 1, the Court sustained only Samsung’s foundation objection to the
admission of PX 38 and PX 34 during the 2012 trial because Apple had not laid
sufficient foundation for authenticity of the exhibit through Denison’s testimony
on cross. ECF No. 1610 at 832-33. Samsung did not object on the basis of Rule
602 in the 2012 trial. Id.

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argued was irrelevant to any issue in the 2012 trial.
Overruled without prejudice. PX 41 is titled “Samsung TN GUI Framework
Final Presentation” and summarizes the findings of a Samsung internal study on
the challenges and goals for its graphical user interface (“GUI”) design. PX 179
is an internal Samsung document which compares the GUI of the Galaxy S i9000
to that of several competitor phones, including the iPhone.

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Rule 603 states: “Before testifying, a witness must give an oath or affirmation to testify truthfully.
It must be in a form designed to impress that duty on the witness’s conscience.”
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Case No.: 11-CV-01846-LHK
ORDER ON SAMSUNG’S OBJECTIONS TO APPLE’S EXHIBITS AND DEPOSITION DESIGNATIONS WITH
RESPECT TO BENNER, DENISON, KIM, LEE, LUCENTE, RYU, SHERMAN, WANG, AND BUCKLEY

one of “four key factors that we expect will shape handsets in the coming five
year.” PX 34.13. Thus, Apple may not question Denison about the exhibit.
Moreover, PX 34 was admitted in the retrial on November 14, 2013, through the
testimony of Julie Davis.

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PX 38: Overruled without prejudice. PX 38 is a report from consultants hired by
Samsung to evaluate consumer preferences for different browser zooming
methods. PX 38 was admitted in the 2012 trial. ECF No. 1947 at 2. PX 38 was
admitted on November 13, 2013, in the retrial. The Court will allow Apple to
question Denison about PX 38 because his testimony last time does not suggest
one way or another whether he has personal knowledge of PX 38. Samsung is
free to re-raise its personal knowledge objection at trial if Apple does not lay
sufficient foundation for Denison’s personal knowledge.

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C. Kim
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United States District Court
For the Northern District of California

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EXHIBIT
NUMBER
PX 3001

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PDX 108

COURT’S RULING ON OBJECTION
Sustained. This exhibit is not on Apple’s exhibit list and thus was not timely
disclosed. ECF No. 2486-4.
Overruled in part and sustained in part. Samsung has objected to the use of PDX
108 during three different witness cross examinations (Kim, Ryu, Wang) for
various reasons. The Court addresses all of Samsung’s arguments with respect to
PDX 108 here. If Apple uses PDX 108 with Kim, Ryu, or Wang, Apple must
make the appropriate changes outlined below.
First, Samsung argues PDX 108 is more prejudicial than probative because it
contains images of Samsung phones not at issue. ECF No. 2727 at 2. Samsung
also claims that the use of the images of the patents placed on a timeline on
pages 3, 5, 7, and 8 would be relevant only to improperly litigate the notice dates
for the D’677 and D’305 patents. Id. Apple claims that the entirety of PDX108
is relevant because “the history of implementation of Apple designs into
Samsung’s products over time” rebuts Samsung’s claim that it could have
employed an alternative design that would have been equally desirable to
consumers as the infringing products. ECF No. 2726 at 2. Apple also argues that
“evidence that infringing phones were launched after the date Samsung argues it
would have used a non-infringing alternative is directly relevant because it
shows that in fact Samsung did not do so and instead continued to launch new
infringing products.” ECF No. 2726 at 6. The Court agrees with Apple and
overrules this particular objection. The Court also notes that contrary to
Samsung’s argument, there are no pictures of patents contained on pages 3, 5, 7,
and 8.
Second, Samsung argues that the picture of PX 52 on pages 3, 5, and 7 is
misleading and lacks probative value because PX 52 has relevance to
establishing notice only for the ‘381. ECF No. 2727 at 3. The Court agrees that
PX 52 has no relevance to notice for the D’677 or D’305 patents, as PX 52 does
not include those patents on the list of patents Apple claimed Samsung
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Case No.: 11-CV-01846-LHK
ORDER ON SAMSUNG’S OBJECTIONS TO APPLE’S EXHIBITS AND DEPOSITION DESIGNATIONS WITH
RESPECT TO BENNER, DENISON, KIM, LEE, LUCENTE, RYU, SHERMAN, WANG, AND BUCKLEY

infringed. Thus, Apple must strike the pictures of PX 52 on pages 3, 5, and 7.

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Third, Samsung argues that pages 7 and 8 misleadingly include both complaints
even though Apple did not assert the D’305 in the original complaint. ECF No.
2727 at 2. Apple did not in fact assert the D’305 in the original April 15, 2011
complaint. ECF No. 1 at 7. Thus, Apple must strike the pictures of the original
complaint from pages 7 and 8.

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Fourth, Samsung argues that pages 7 and 8 misleadingly include pictures of the
Galaxy S II T-Mobile, which was never accused of infringing the D’305 patent,
in a timeline entitled “D’305 patent infringement.” ECF No. 2727 at 3-4. The
Court finds that the pictures of the Galaxy S II T-Mobile are not substantially
misleading or more prejudicial than probative because Apple includes the
Galaxy SII T-Mobile in the slide to argue that it took Samsung a period of time,
after it was given notice of infringement in the complaint, to come up with a
non-infringing alternative. The inclusion of this phone is not for the purposes of
accusing it of D’305 patent infringement. However, the Court agrees with
Samsung that the title implies such. Accordingly, Apple must change the title on
pages 7 and 8 to minimize any risk that the jury will believe the Galaxy S II TMobile infringes the D’305. Apple has already expressed willingness to
“address the concerns Samsung has raised regarding the title of these slides.”
ECF No. 2726 at 6.

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United States District Court
For the Northern District of California

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Fifth, Samsung argues that pages 7 and 8, which are titled “D’305 Patent
Infringement,” improperly include images of the “entire phones instead of
excerpting the user interface claimed by the D’305 . . .” ECF No. 2727 at 2. The
Court granted Apple’s objection in the 2012 trial to Samsung’s demonstratives
which compared the D’305 patent with Samsung phone body styles because
“[t]he D’305 doesn’t go to the body style, so all these demonstratives [that] have
the body style in them . . . . [are] confusing.” ECF No. 1571; ECF No. 1611 at
1261-62. Consistent with this decision, the Court holds that Apple may show
only the user interface claimed by the D’305 on pages 7 and 8. Apple has
already stated it is willing to revise its slides accordingly. ECF No. 2726 at 5.

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D. Lee
EXHIBIT
NUMBER
PDX 107

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PX 3036 and

COURT’S RULING ON OBJECTION
Overruled. PDX 107 contains side by side graphics of iPhones next to a resized
Galaxy S i9000 phone. While Samsung claims this document does nothing but
relitigate infringement and also that the Galaxy S i9000 is not at issue in the
retrial, ECF No. 2727 at 2, PDX 107 is relevant and not substantially more
prejudicial than probative because it sheds light on how closely Samsung
implemented Apple’s patented designs, which is probative of demand for
Apple’s design patents and the reasonable royalty Samsung would have paid to
use those patents. The 2012 jury found that the Galaxy S i9000 infringed the
D’305 and D’677 patents. ECF No. 1930 at 6-7.
Sustained. These exhibits were not disclosed on Apple’s exhibit list. ECF No.
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Case No.: 11-CV-01846-LHK
ORDER ON SAMSUNG’S OBJECTIONS TO APPLE’S EXHIBITS AND DEPOSITION DESIGNATIONS WITH
RESPECT TO BENNER, DENISON, KIM, LEE, LUCENTE, RYU, SHERMAN, WANG, AND BUCKLEY

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PX 3037

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E. Lucente
EXHIBIT
NUMBER
PX 47

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United States District Court
For the Northern District of California

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PX 48

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Overruled. Samsung claims that use of this exhibit would be unduly prejudicial.
ECF No. 2727 at 2. PX 47 is an email from a Samsung employee to Samsung
Senior Vice President Dong Hoon Chang discussing how the Galaxy S “looks
like it copied the iPhone too much,” which is probative of demand for the
iPhone and Samsung’s belief about whether Apple’s patented features are
desirable, which are both in turn relevant to the reasonable royalty Samsung
would pay to use Apple’s patented features. The probative value of this evidence
is not substantially outweighed by any prejudice to Samsung.

Samsung’s argument that PX 48 was not listed in Musika’s report and thus has
“been precluded from being used at trial” for demand fails because the Court’s
held only that “Davis may not use any exhibits to argue demand for Apple’s
patented products or patented features unless such exhibits were
included in Musika’s Exhibit [List].” ECF No. 2645 at 4 (emphasis added).

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COURT’S RULING ON OBJECTION

Samsung’s argument that PX 48 was not listed in Musika’s report and thus has
“been precluded from being used at trial” for demand fails because the Court’s
held only that “Davis may not use any exhibits to argue demand for Apple’s
patented products or patented features unless such exhibits were
included in Musika’s Exhibit [List].” ECF No. 2645 at 4 (emphasis added).
Overruled. PX 48 is a presentation prepared for Samsung by a third party
concerning the user experience of the Galaxy S and the Wave. It summarizes a
Samsung survey of users regarding their opinions on Samsung’s operating
systems. It states that users saw the Galaxy GUI main menu “as a copy” of the
iPhone’s (PX 48.32) and “too much like an iPhone” (PX 48.63). This evidence
of copying suggests that Samsung found Apple’s patented features desirable,
and thus is probative of the reasonable royalty Samsung would pay to use
Apple’s patented features. The probative value of this evidence is not
substantially outweighed by any prejudice to Samsung.

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2486-4. The Court notes that Apple has made no response to Samsung’s timely
disclosure argument. See ECF No. 2726 at 3.

F. Ryu
EXHIBIT
NUMBER
PDX108
PX 194

COURT’S RULING ON OBJECTION
See discussion regarding Kim above.
Samsung raises three objections and the Court addresses each in turn.
Samsung first objects that the document is more prejudicial than probative. ECF
No. 2727 at 3. PX 194 was admitted in the 2012 trial without a limiting
instruction. ECF No. 1947 at 6. It is an internal Samsung email which
summarizes and quotes a speech given by Samsung’s CEO at a meeting in
which the CEO criticized Samsung’s user experience mindset of “clinging to the
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Case No.: 11-CV-01846-LHK
ORDER ON SAMSUNG’S OBJECTIONS TO APPLE’S EXHIBITS AND DEPOSITION DESIGNATIONS WITH
RESPECT TO BENNER, DENISON, KIM, LEE, LUCENTE, RYU, SHERMAN, WANG, AND BUCKLEY

past.” The email discusses how the iPhones set “the standard (?) [sic] of the
industry” and recommends changes to Samsung’s user experience. PX 194 at 1.
The evidence is relevant to showing that Samsung recognized the demand for a
better user experience platform, which is relevant to the reasonable royalty
Samsung would pay Apple in the hypothetical negotiation. Samsung’s objection
that the document is more prejudicial than probative is overruled.

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Samsung also objects that Apple “cannot lay a proper foundation for using PX
194 with Mr. Ryu, who is not listed on the document, is not listed as a
sponsoring witness, and has no knowledge of the matters set forth therein.” ECF
No. 2727 at 3. The Court interprets Samsung’s objection as an objection to both
lack of foundation for admitting the exhibit and lack of personal knowledge
under Rule 602. Apple’s briefing does not clarify whether Apple intends to
admit this exhibit through Ryu’s testimony or if Apple will simply question Ryu
about this exhibit. To the extent Apple seeks to admit this exhibit, Samsung’s
objection to the admission of the exhibit is overruled, as each party has
stipulated to the authenticity of documents produced by that party. See ECF No.
1205; ECF No. 2736 at 2.

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However, Samsung’s personal knowledge objection is overruled without
prejudice. Pursuant to Rule 602, Apple must still establish Ryu’s personal
knowledge before eliciting testimony from Ryu about this email. ECF No. 2736
at 2. Samsung may re-raise its personal knowledge objection at the appropriate
time if Apple does not set forth sufficient foundation for personal knowledge at
trial.

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G. Sherman
EXHIBIT
NUMBER
PX 54

COURT’S RULING ON OBJECTION
Sustained in part and overruled in part. PX 54 is a presentation by Boston
Consulting Group to Samsung titled “Lessons from Apple,” given in November
2010. The document answers the question “Why you should care about Apple”
by explaining that Apple was “gaining massive share in smartphones.” PX 54.4.
The presentation also discusses Apple’s innovation with regard to user
experience and graphical user interface. See, e.g., PX54.6 and PX54.12. The
Court acknowledges that this document is probative of demand for Apple’s
iPhone and potentially patented features, and thus Georgia-Pacific factor
number 8, i.e., “the established profitability of the product made under the
patent; its commercial success; and its current popularity.” Georgia-Pacific
Corp v. U.S. Plywood Corp., 318 F.Supp. 1116, 11120 (S.D.N.Y. 1970).
However, in the 2012 trial, the exhibit was admitted with the limiting
instruction, “Do not consider for the truth of the matters asserted,” ECF No.
1947 at 2, because the Court found that the “document is not offered for the
truth of the matter asserted and therefore is not hearsay.” ECF No. 1520 at 5. In
the 2012 trial, the Court found it probative to Samsung’s knowledge for
willfulness. Id. Because the Court has held that all evidentiary rulings will
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Case No.: 11-CV-01846-LHK
ORDER ON SAMSUNG’S OBJECTIONS TO APPLE’S EXHIBITS AND DEPOSITION DESIGNATIONS WITH
RESPECT TO BENNER, DENISON, KIM, LEE, LUCENTE, RYU, SHERMAN, WANG, AND BUCKLEY

remain the same in this retrial as the 2012 trial, PX 54 may not be offered for the
truth of the matter asserted in the retrial but may be used for other purposes,
including to show Samsung’s knowledge of the value of the patented features.
However, the objection is sustained insofar as Apple seeks to use this document
for the truth of the matter asserted.

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United States District Court
For the Northern District of California

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PX 39

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JX 1019

Apple’s response suggests it is seeking to admit this exhibit to prove the truth of
the matter asserted: “PX 54 is . . . a party admission. The presentation discusses
a study done for Samsung that focused on Apple and its user interface. It is
highly probative of demand.” ECF No. 2726 at 5. Apple’s argument that this
falls under a hearsay exception suggests it is offering this evidence for the truth
of the matter asserted. The Court disagrees that this document is an admission
because there is no suggestion that Samsung has adopted the contents of this
document. Nonetheless, as set forth above, this document is relevant to
knowledge, and thus may be used for purposes other than for the truth of the
matter asserted.
Overruled. Mr. Sherman is an expert on design patents. PX 39 is an internal
Samsung document that compares, side by side, features of a Samsung
development phone against the iPhone, including the Apple icon layout in the
D’305 patent. PX 39.5 and 39.6. The document is evidence of demand for the
iPhone because it reflects instructions from Samsung’s CEO to “[i]mprove UX
while referring to iPhone 3GS.” PX 39.1. This evidence is relevant to rebut
Samsung’s contention that Samsung’s alternative designs were just as good as
the iPhone. The probative value of this evidence is not substantially outweighed
by any prejudice to Samsung, despite the fact that the Samsung phone depicted
in the document, the “Alkon,” is not at issue in the retrial. Further, while
Samsung claims the document contains subject matter (user interface) for which
Sherman was not disclosed as an expert, ECF No. 2727 at 4, Apple has not
indicated any intention to elicit expert testimony from Sherman regarding the
functioning of the GUI.
Sustained. Samsung argues that this exhibit is more prejudicial than probative.
ECF No. 2727 at 3. JX 1019 is the Galaxy S 4G device. This is a phone not at
issue for which Apple’s award was already sustained. ECF No. 2271 at 22.
Apple claims this evidence is probative because “Samsung released this device,
a near duplicate of the iPhone, after Apple requested that Samsung stop copying
Apple’s designs. The failure to change is probative of Samsung’s belief about
the value of the designs and the acceptability of any alternative.” ECF No. 2726
at 5. However, Apple does not cite any date for which Apple requested that
Samsung stop copying Apple’s design patents at issue. The Court is aware of
only PX 52, which is an August 4, 2010 presentation delivered by Apple to
Samsung entitled “Samsung’s Use of Apple Patents in Smartphones.” PX 52
was admitted in the 2012 trial to prove notice of the ‘381 patent. ECF No. 1695
at 1959. PX 52 does not include D’305 or D’677 on its list of infringed patents.
PX 52 at 12-16. As such, under Rule 403, the Court finds that the picture of a
phone that is not at issue for which Apple has already been compensated is
substantially more prejudicial than probative and risks the chance that the jury
will grant a duplicative award.
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Case No.: 11-CV-01846-LHK
ORDER ON SAMSUNG’S OBJECTIONS TO APPLE’S EXHIBITS AND DEPOSITION DESIGNATIONS WITH
RESPECT TO BENNER, DENISON, KIM, LEE, LUCENTE, RYU, SHERMAN, WANG, AND BUCKLEY

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H. Wang
EXHIBIT
NUMBER
PX 53

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PDX 108

COURT’S RULING ON OBJECTION
Overruled. This Samsung internal document compares the Galaxy S and the
iPhone 4, which is relevant to the issue of whether Samsung and Apple
phones are in competition. See Georgia-Pacific factor number 5, “the
commercial relationship between licensor and licensee, such as whether they
are competitors in the same territory in the same line of business; or whether
they are inventor or promoter.” Georgia-Pacific Corp., 318 F.Supp. at 1120.
Although it concerns a Samsung product not at issue, the probative value of
this evidence is not substantially outweighed by any prejudice to Samsung.
See discussion regarding Kim above.

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United States District Court
For the Northern District of California

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I. Buckley
DEPOSITION
DESIGNATION
Depo. at 181:1023; 181:25182:4; 182:1516; 182:22-25;
201:13-15;
201:21-23

COURT’S RULING ON OBJECTION
Sustained as to lines 181:10-23; 181:25-182:4, which were not disclosed in
either Apple’s October 29, 2013 deposition designations, ECF No. 2606-1, or
in Apple’s November 1, 2013 objections and counter-designations, ECF No.
2630.
Overruled as to lines 182:15-16; 182:22-25, which were not disclosed in
Apple’s October 29, 2013 deposition designations, ECF No. 2606-1, but were
disclosed in Apple’s November 1, 2013 objections and counter-designations,
ECF No. 2630 at 9.
Sustained as to lines 201:13-15; 201:21-23, which were not disclosed in either
Apple’s October 29, 2013 deposition designations, ECF No. 2606-1, or in
Apple’s November 1, 2013 objections and counter-designations, ECF No.
2630. The Court is unconvinced by Apple’s argument that the “rule of
completeness” requires the admission of this testimony, ECF No. 2726 at 6,
given that Apple did not designate this testimony in a timely fashion.

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IT IS SO ORDERED.

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Dated: November 14, 2013

_________________________________
LUCY H. KOH
United States District Judge

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Case No.: 11-CV-01846-LHK
ORDER ON SAMSUNG’S OBJECTIONS TO APPLE’S EXHIBITS AND DEPOSITION DESIGNATIONS WITH
RESPECT TO BENNER, DENISON, KIM, LEE, LUCENTE, RYU, SHERMAN, WANG, AND BUCKLEY