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

Filing 321

Declaration of Jason R. Bartlett in Support of #319 Apple's Motion to Compel Samsung to Produce Documents and Provide Responsive Answers to Propounded Discovery filed by Apple Inc.. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D, #5 Exhibit E, #6 Exhibit F, #7 Exhibit G, #8 Exhibit H, #9 Exhibit I, #10 Exhibit J, #11 Exhibit K, #12 Exhibit L, #13 Exhibit M)(Bartlett, Jason) (Filed on 10/18/2011) Modified on 10/19/2011 linking entry to document #319 (dhm, COURT STAFF).

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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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Attorneys for Plaintiff and
Counterclaim-Defendant APPLE INC.

WILLIAM F. LEE
[e-mail]
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
Telephone: [phone]
Facsimile: [phone]
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]

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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,

Case No.

11-cv-01846-LHK

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Plaintiff,
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v.
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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.

DECLARATION OF JASON R.
BARTLETT IN SUPPORT OF
APPLE’S MOTION TO COMPEL
SAMSUNG TO PRODUCE
DOCUMENTS AND PROVIDE
RESPONSIVE ANSWERS TO
PROPOUNDED DISCOVERY
Date: October 25, 2011
Time: 10:00 am
Courtroom: 5, 4th Floor
Honorable Paul S. Grewal

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PUBLIC VERSION
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EXHIBIT J FILED UNDER SEAL
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DECLARATION OF JASON R. BARTLETT
CASE NO. 11-CV-01846-LHK
la-1141127

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I, Jason R. Bartlett, declare as follows:

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I am an attorney with the law firm of Morrison & Foerster LLP, counsel for Apple

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Inc. (“Apple”). I am licensed to practice law in the State of California. Unless otherwise

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indicated, I have personal knowledge of the matters stated herein and, if called as a witness, could

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and would testify competently thereto. I make this declaration in support of Apple’s Motion to

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Compel Samsung to Produce Documents and Provide Response Answers to Propounded

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Discovery.

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2.

In a letter dated July 1, 2011, through counsel, Apple reminded Samsung of its

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obligations to preserve documents and electronic evidence during the course of litigation, citing

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Samsung’s demonstrated inability to preserve such materials in previous actions as the impetus

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for the letter. Within the letter, specific instances of previous misconduct were cited from various

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cases, including “Fractus, S.A. v. Samsung Elecs. Co., Case No. 09-cv-203 (E.D. Tex.) (trial

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transcript referring to Samsung’s continued policy of deleting electronic mail every two weeks,

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even after lawsuit filed).” A true and correct copy of this July 1 letter is attached hereto as

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Exhibit A.

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3.

On July 12, 2011, Apple propounded to Samsung a single interrogatory in an effort

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to obtain discovery narrowly tailored to Apple’s request for a preliminary injunction filed with

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the Court on July 1, 2011. Attached hereto as Exhibit B is a true and correct copy of Apple Inc.’s

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Interrogatories to Defendants Relating to Apple’s Motion for a Preliminary Injunction – Set One.

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4.

On that same day, Apple propounded to Samsung a number of requests for

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production, again to obtain discovery narrowly tailored to Apple’s request for a preliminary

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injunction. Attached hereto as Exhibit C is a true and correct copy of Apple Inc.’s Requests for

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Production of Documents and Things Relating to Apple’s Motion for a Preliminary Injunction –

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Set One.

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5.

Prior to the Court-imposed deadline by which Apple had to complete its service of

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motion-related discovery, Apple propounded a second set of requests for production to Samsung.

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Attached hereto as Exhibit D is a true and correct copy of Apple Inc.’s Requests for Production of

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DECLARATION OF JASON R. BARTLETT
CASE NO. 11-CV-01846-LHK
la-1141127

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Documents and Things Relating to Apple’s Motion for a Preliminary Injunction – Set Two,

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served on August 26, 2011.

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6.

Samsung responded to Apple’s requests for production on August 31, 2011.

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Attached hereto as Exhibit E is a true and correct copy of Samsung’s Objections and Responses

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to Apple’s Requests for Production of Documents and Things Relating to Apple’s Motion for a

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Preliminary Injunction – Sets One (Nos. 1-8) and Two (Nos. 155-217).

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7.

Also on August 31, 2011, Samsung objected, but did not respond, to Apple’s

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Interrogatory No. 1. Attached hereto as Exhibit F is a true and correct copy of Samsung’s

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Objections to Apple’s Interrogatories to Defendants Relating to Apple’s Motion for a Preliminary

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Injunction – Sets One (No. 1) and Two (Nos. 10-14).
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On September 1, 2011, less than 24 hours after receiving Samsung’s objections

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and responses, I sent an email to Ms. Melissa Chan, counsel for Samsung, to request a meeting to

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confer with counsel in order to address certain discovery related issues. A call was set for

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September 2, 2011.

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9.

On September 2, 2011, counsel for both parties held a lengthy call during which

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Samsung, through counsel, agreed to investigate a number of issues raised by Apple. On

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September 7, 2011, I sent a letter to Ms. Chan confirming the compromises reached by the parties

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stemming from the September 2 teleconference and providing proposals and clarifications

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requested by Samsung. A true and correct copy of that letter is attached hereto as Exhibit G.

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10.

Two days later, Samsung responded to my letter of September 7. A true and

correct copy of Samsung’s response letter of September 9, 2011 is attached hereto as Exhibit H.
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In response to Samsung’s positions, I sent on that same day an email to Ms.

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Victoria Maroulis, counsel for Samsung, to request an in-person meeting to address the parties’

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disagreements with respect to various discovery issues. My request was to meet in person in the

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offices of Samsung’s counsel on Monday, September 12. That request was refused. On

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September 13, 2011, I again asked Samsung’s counsel to meet with counsel for Apple at the

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former’s offices, and again was refused.

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DECLARATION OF JASON R. BARTLETT
CASE NO. 11-CV-01846-LHK
la-1141127

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On September 14, 2011, counsel for both parties participated in another

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teleconference to address several discovery related issues. I thereafter sent a letter addressed to

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Ms. Rachel Herrick Kassabian and Ms. Chan, counsel for Samsung, to memorialize the

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conversations had during that call. A true and correct copy of that letter is attached hereto as

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Exhibit I. In that letter, another request for an in-person meeting was presented. That request

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was also refused.

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At approximately 10 p.m. on Wednesday, September 14, 2011, after the several

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requests to meet in person were either ignored or refused, I sent an email to Ms. Kassabian

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informing her that Apple would request the Court’s assistance to intervene. Shortly thereafter,

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counsel for Samsung agreed to meet in person with Apple’s counsel in the Palo Alto offices of

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Morrison & Foerster LLP on Friday, September 16.

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Counsel for both parties met as scheduled on that Friday but were unable to

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resolve their disputes. For instance, Samsung had previously represented that it had produced

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“any responsive documents that might exist, after a reasonable search” in response to Apple’s

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Request for Production No. 1. Samsung also confirmed during the meeting of September 16 that

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its objections purporting to exclude from its production documents relating to irrelevant

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“functionalities” and “geographies” were not a basis for Samsung to omit relevant design

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documents from the production. When Apple asked a series of questions about the scope of

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Samsung’s document collection to clarify potential inconsistencies in those positions, however,

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Samsung would not or could not answer those questions. Further, when asked why its production

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to date was comprised of only about 13 percent of documents written in Korean, why there was

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not a single notebook or sketch from a Samsung designer, why there were only about 35 e-mails

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in the entirety of the production (none originating from Samsung designers), and why there were

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almost no documents regarding Apple products, Samsung had no explanation at all. Instead,

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Samsung protested that Apple was incorrectly “assuming such documents actually do exist.”

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These and other issues were memorialized in a letter I sent to Ms. Chan on September 20, 2011.

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A true and correct copy of this letter is attached hereto as Exhibit J.

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DECLARATION OF JASON R. BARTLETT
CASE NO. 11-CV-01846-LHK
la-1141127

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Also during the meeting of September 16, Samsung represented that it was still in

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the process of collecting documents, and it expected to produce more documents later that day as

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well as on Saturday, September 17. Samsung did make clear, however, that it would not produce

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any surveys or marketing documents that did not specifically mention one of the four Samsung

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products named in Apple’s preliminary injunction motion, even if those surveys or documents

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mentioned or referred to any Apple products.

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On the evening of September 19, 2011, at 9:44 p.m., Samsung served to Apple its

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first substantive response to Apple’s Interrogatory No. 1. Attached hereto as Exhibit K is a true

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and correct copy of Samsung’s Response and Objections to Apple’s Interrogatories to Defendants

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Relating to Apple’s Motion for a Preliminary Injunction (No. 1).
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Attached hereto as Exhibit L is a true and correct copy of an article entitled

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“Samsung sees iPad 2’s thinness, price as challenges.” Upon information and good faith belief,

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this copy of this report was printed on September 19, 2011 from the website Yonhap News

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Agency at the following website address:

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http://english.yonhapnews.co.kr/techscience/2011/03/04/9/0601000000AEN20110304009300320

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F.HTML.

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Attached hereto as Exhibit M is a true and correct copy of relevant excerpts of the

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transcript from the Videotaped Deposition of Michael J. Wagner, CPA, taken in this matter on

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Wednesday, September 14, 2011.

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I declare under penalty of perjury under the laws of the United States and the State of
California that the foregoing is true and correct.

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Executed on September 20, 2011 in San Francisco, California.

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By: /s/ Jason R. Bartlett_____________
Jason R. Bartlett

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DECLARATION OF JASON R. BARTLETT
CASE NO. 11-CV-01846-LHK
la-1141127

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