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

Filing 310

Declaration of Grant L. Kim in Support of Apple's Objections to Samsung's Untimely New Evidence, filed by Apple Inc.. (Attachments: #1 Exhibit A, #2 Notice of Manual Filing Exhibit B, #3 Exhibit C, #4 Exhibit D, #5 Notice of Manual Filing Exhibit E, #6 Exhibit F, #7 Notice of Manual Filing Exhibit G, #8 Exhibit H, #9 Exhibit I, #10 Exhibit J)(Jacobs, Michael) (Filed on 10/17/2011) Modified on 10/18/2011. Cannot link entry. Ojections have not been efiled. NOTICES OF MANUAL FILING ARE NOT IN COMPLIANCE WITH GENERAL ORDER NO. 62 (dhm, COURT STAFF).

EXHIBIT F

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

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APPLE INC., a California
corporation,

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Plaintiff,
vs.
Case No. 11-CV-01846-LHK
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.
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CONFIDENTIAL
ATTORNEYS' EYES ONLY
OUTSIDE COUNSEL
VIDEOTAPED DEPOSITION OF SISSIE TWIGGS
Redwood Shores, California
Wednesday, July 27, 2011

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Reported by:
LORRIE L. MARCHANT, CSR No. 10523, RPR, CRR, CCRR, CLR
JOB NO. 40670
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July 27, 2011
10:12 a.m.

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Videotaped Deposition of SISSIE

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TWIGGS, held at the offices of Quinn

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Emanuel Urquhart & Sullivan, LLP, 555

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Twin Dolphin Drive, Redwood Shores,

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California, before Lorrie L. Marchant,

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a Certified Shorthand Reporter,

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Registered Professional Reporter,

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Certified Realtime Reporter,

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California Certified Realtime Reporter

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and Certified LiveNote Reporter.

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A P P E A R A N C E S:

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FOR THE PLAINTIFF APPLE INC.:
MORRISON & FOERSTER
BY: JENNIFER LEE TAYLOR, ESQ.
JULIA D. KRIPKE, ESQ.
425 Market Street
San Francisco, California 94105

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FOR THE DEFENDANTS SAMSUNG:
QUINN EMANUEL URQUHART & SULLIVAN
BY: VICTORIA F. MAROULIS, ESQ.
555 Twin Dolphin Drive, 5th Floor
Redwood Shores, California 94065

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and
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BY:

ERIK OLSON, ESQ.
ALEX BINDER, ESQ.
KEVIN JOHNSON, ESQ.
50 California Street
San Francisco, California 94111

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ALSO PRESENT:
Erica Tierney, Apple IP Litigation Counsel
Sean McGrath, Videographer
---oOo---

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pages in.

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A.

This page, this document?

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Q.

Exhibit 2.

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A.

Here.

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Q.

Please look at Topic 11.

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A.

Yes.

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Q.

Is it your understanding that Apple designated

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you to be a corporate representative to testify on Topic

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11?

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A.

Yes, they did.

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Q.

Are there any other topics in this Notice of

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Deposition that you are going to be testifying about as

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a representative of Apple?

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A.

I need to go through each topic.

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believe there's anything else for me here.

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I don't

speaking to Topic 11.

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Q.

I'll only be

And as to Topic 11, which is Apple's contention

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that Apple will be irreparability harmed in the absence

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of a preliminary injunction, are you testifying as to

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full topic or some subset of that topic?

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A.

I'll be speaking to the part that I'm

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responsible for that's within the scope of my

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responsibility, which is worldwide advertising.

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case, United States advertising.

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Q.

In this

Will you be speaking about market share and
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sales?

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A.

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sales.

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Q.

That will be covered by another witness?

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A.

I believe so.

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Q.

Okay.

I will not be speaking about market share and

So is it fair to say that the subject on

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which you're Apple's 30(b)(6) representative is the same

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subject that's covered in your declaration?

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A.

Yes.

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Q.

What have you done to prepare for today's

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It's the same subject in my declaration.

deposition?
A.

Yesterday I met with the three representatives

that are here.
Q.

Please don't tell me anything you discussed.

Just logistics, who you met with.

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A.

Okay.

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Q.

How long did you meet for?

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A.

It was about an hour.

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Jennifer, Julia and Erica Tierney.

We met for about an

hour, hour and a half.
Q.

Did you review any documents during that

meeting?

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A.

We reviewed my declaration.

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Q.

And attachments to the declaration?

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A.

There were several attachments that were

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collected.

I did not review each and every one of them.
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refer to Exhibit 2 --

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A.

Okay.

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Q.

-- we looked at it before.

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It states your -- and by "your" means Apple --

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contention that Apple will be irreparably harmed in the

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absence of a preliminary injunction.

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A.

Can you remind me where I'm looking

for this?
Q.

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I'm sorry.

Sure.
Let's take a look at Exhibit 2, which is a

30(b)(6) notice.

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A.

Okay.

That's this.

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Q.

Yeah.

So it refers to the back of the document

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it says, Topics.
A.

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MS. TAYLOR:
(indicating).

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It says, Topics.
It says, Topics, here

She wants you looking at Topic 11.

BY MS. MAROULIS:
Q.

So I believe we established earlier today that

you were selected --

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A.

Yes.

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Q.

-- to cover Topic 11.

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So do you see that it says, Your contention

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that Apple will be irreparably harmed in the absence of

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a preliminary injunction?
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What is Apple's contention as to why it will be
harmed in the absence of an injunction?
A.
that.

I want to make sure that I'm fully interpreting
So --

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MS. TAYLOR:

With respect to that, you're only

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one of three witnesses who's been designated to testify

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on that.

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have knowledge, not the full scope of the contentions.

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There are two other witnesses.

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So you testified as to the areas where you

THE WITNESS:

Right.

So I've worked on

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Apple advertising for a long time, certainly from the

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beginning of iPhone and iPad.

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What I'm aware of, the process, what the team

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does, the amount of money that's spent, the care and

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design throughout every stage of the process is a

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critical part to getting Apple's message out.

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What I have stated in my declaration is that

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important -- the key to that message is our product

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design.

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We spend, as I said, a lot of time and money

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and care and nights and weekends ensuring that we've

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done that to beyond the best of our abilities.

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BY MS. MAROULIS:

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Q.

Do you have --

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A.

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Q.

I'm sorry.

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A.

No.

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Q.

Do you have any specific knowledge of Apple

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Go ahead and finish.

Go ahead.

being harmed by the sales of Samsung devices?
A.

I do not have specific knowledge of that, but

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what I can say is that it's -- it seems to be quite

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obvious that if you have a product that is well known

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and has certain -- a certain look and feel and function

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to it, and you've spent a lot of time, money and care

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getting that product knowledge out in the field, and

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someone comes along and copies what you've done, that at

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some stage that will start to chip away at what you've

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built.

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And I think the question of irreparable is a

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real one in consumer's minds.

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get them to pay attention.

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diverge.

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expensive, it's hard.

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You've lost them.

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It's easy to get them to

It's hard to bring them back.

It's not only

It's impossible in some cases.

MS. MAROULIS:

Move to strike that as

nonresponsive.

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It's hard -- it's hard to

BY MS. MAROULIS:
Q.

Do you have any evidence of Apple being harmed

by the sale of Samsung devices?
MS. TAYLOR:

That's been asked and answered.

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THE WITNESS:

Harmed by the sale of -- do I

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have evidence that Apple has been harmed by the sale of

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Samsung devices?

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way that you're looking for.

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I'm not sure I can answer that in the

BY MS. MAROULIS:
Q.

Have you seen any evidence showing that Apple's

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sales declined as a result of the sale of Samsung

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devices?

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MS. TAYLOR:

That's actually outside the scope

of her designation.

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But you can answer if you know.

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THE WITNESS:

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figures.

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I -- I don't have our sales

I believe somebody might speak to that.
BY MS. MAROULIS:

Q.

But you yourself do not know of any evidence

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showing that the Apple sales declined because of Samsung

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devices; correct?

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A.

I don't have those figures.

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Q.

Do you have any information whether Apple's

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market share declined as a result of the sale of Samsung

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devices?

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MS. TAYLOR:

Again, that's outside the scope of

her designation.

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But you can answer if you know.

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THE WITNESS:

I don't have that information.

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BY MS. MAROULIS:
Q.

Okay.

Do you have any information on whether,

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as a result of Samsung devices, Apple's advertising

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became less effective?

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A.

When there's confusion, when someone is coming

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in with something that looks very much like your

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product, that -- that causes some confusion.

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And I have to state that it's not something
that's easy to get back.

Once you've derailed a

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conversation, it's hard to bring that back, if at all

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possible.

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back.

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Q.

So I don't know that you get those customers

Do you believe you lost any customers?

"You"

meaning Apple?
A.

There are probably -- there are probably a few

customers we lost.
Q.

Do you have any evidence of that or are you

just speculating?
A.

I don't have any evidence of that.

My guess --

my guess is that we lost some customers.
Q.

That is your guess, not supported by any

information; correct?
A.

I don't have the sales figures.
MS. TAYLOR:

Wait.

Wait.

She's not testifying

on behalf of the company on this.
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But go ahead and answer in your personal
knowledge.

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THE WITNESS:
figures.

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Okay.

I don't have the sales

Or the market share.
BY MS. MAROULIS:

Q.

Do you have any evidence of erosion of Apple's

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distinctiveness in customers' minds as a result of

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Samsung's phones?

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A.

I don't have evidence.

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Q.

So you don't have evidence at all that Apple

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has been harmed in any way by the sale of Samsung's

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phones; correct?

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A.

I focus on our advertising and what we're doing

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in our advertising and moving our advertising forward.

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And I don't spend -- I don't have time to spend on

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pulling data such as that.

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Does it exist?

So I do not have that data.

Probably.

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Q.

You don't know whether it exists or not; right?

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A.

I don't know.

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Q.

So your testimony on this topic is limited to

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amount of dollars that Apple spends on advertising; is

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that right?

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MS. TAYLOR:

Mischaracterizes her testimony.

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Move to strike -- you moved to strike her answer on the

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topic.
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THE WITNESS:

I testified to some of our

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spending today, yes.

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Apple's advertising spending.

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And part of my declaration is

BY MS. MAROULIS:
Q.

Ms. Twiggs, did you collect any documents in

connection with this litigation?
A.

There was a document regarding our spending for

iPad and iPhone that was collected.

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Q.

Any other documents?

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A.

The documents as part of my declaration?

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Q.

Let me clarify.

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In connection with the litigation parties

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collective exchange of documents, besides the

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spreadsheet you testified before about, did you collect

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and give to counsel any additional documents?

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A.

I have -- there's been nothing else that I've

been asked to share or to collect.
Q.

And so the collection of the advertisements

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that were attached to your declaration did not come from

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your files or did it?

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MS. TAYLOR:

That assumes facts not in evidence

and possibly mischaracterizes her testimony.
THE WITNESS:

So the way that the ads were

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collected, we have sort of a central collection point.

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They were gathered together and shared with the legal
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Sissie Twiggs.

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the record.

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The time is 5:02 p.m., and we are off

(Time noted:

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5:02 p.m.)
---oOo---

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____________________
SISSIE TWIGGS

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Subscribed and sworn to
before me this

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of

day

2011.

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_______________________
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CERTIFICATE

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STATE OF CALIFORNIA )
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:
COUNTY OF SONOMA

ss

)

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I, Lorrie L. Marchant, a Certified Shorthand

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Reporter, a Registered Professional Reporter, a

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Certified Realtime Reporter, and a Certified Realtime

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Professional within and for the State of California, do

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hereby certify:

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That SISSIE TWIGGS, the witness whose deposition is

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herein set forth, was duly sworn/affirmed by me and that

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such deposition is a true record of the testimony given

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by such witness.

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I further certify that I am not related to any of

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the parties to this action by blood or marriage and that

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I am in no way interested in the outcome of this matter.

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In witness whereof, I have hereunto set my hand
this 27th day of July, 2011.

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--------------------------------------------LORRIE L. MARCHANT, CSR, RPR, CRR, CLR, CCRR

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CSR No. 10523

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