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).
Exhibit G
425 MARKET STREET
SAN FRANCISCO
CALIFORNIA 94105-2482
TELEPHONE: 415.268.7000
FACSIMILE: 415.268.7522
WWW.MOFO.COM
September 7, 2011
MORRISON & FOERSTER LLP
NEW YORK, SAN FRANCISCO,
LOS ANGELES, PALO ALTO,
SACRAMENTO, SAN DIEGO,
DENVER, NORTHERN VIRGINIA,
WASHINGTON, D.C.
TOKYO, LONDON, BRUSSELS,
BEIJING, SHANGHAI, HONG KONG
Writer’s Direct Contact
415.268.6615
JasonBartlett@mofo.com
Via Email
Melissa Chan, Esq.
Quinn Emanuel
555 Twin Dolphin Dr., 5th Floor
Redwood Shores, California 94065
Re:
Apple v. Samsung, Case No. 11-cv-1846-LHK (N.D. Cal.)
Dear Melissa:
I write to summarize and confirm our discussion Friday afternoon pertaining to
Samsung’s objections and responses to Apple’s preliminary injunction-related discovery.
Unless a different date is specifically requested below, please address each of the following
no later than the close of business on Friday, September 9.
INTERROGATORIES
“Delay” objection: Samsung has objected to a number of Apple’s interrogatories on
the basis that “Apple has delayed serving this interrogatory, despite Apple’s earlier
knowledge of the issues raised in the interrogatory and despite the fact that Apple has known
about the Court’s Order governing discovery relating to Apple’s motion for a preliminary
injunction since July 18, 2011.” Because Apple complied with the deadline set by the Court
for propounding discovery, it is unclear what basis Samsung has for making this objection.
Nevertheless, because you represented that Samsung does not intend to stand on this
objection, I understand that it will not impact the substance of Samsung’s responses.
Timing: we also discussed the timing of Samsung’s forthcoming responses, and I
appreciate your willingness to provide responses to interrogatories relevant to scheduled
depositions in advance of those depositions.
REQUESTS FOR PRODUCTION
Responses noting that Samsung will meet and confer: based on our discussion, I
understand that Samsung is in the process of collecting and producing documents based on
its understanding of the requests, even where the response for the request specifically notes
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Melissa Chan, Esq.
September 7, 2011
Page Two
“Samsung is willing to meet and confer with Apple about the relevance and scope of the
information sought by this request.” You clarified that this response does not mean that
Samsung is waiting to meet and confer on those requests prior to taking action on them. You
also confirmed that Samsung understands all of Apple’s requests for production sufficiently
well to begin searching for and producing documents responsive to each of them.
Experts: as was the case for Samsung’s requests pertaining to Apple’s experts, Apple
has requested the production of expert reports, declarations, and deposition and trial
transcripts from Samsung’s experts. Apple is amenable to a reasonable narrowing of its
original request, and I understand that you will be providing us with a proposal for limiting
the scope of this production. Please let us know by noon tomorrow how Samsung would like
to proceed, and if there are any such documents that will need to be produced prior to the
deposition scheduled for September 9, 2011.
Percipient witnesses: because this subject intersects with the discussion of expert
witnesses, please let us know Samsung’s proposal for narrowing the production of expert
reports, declarations, and deposition and trial transcripts from Messrs. Fidler and Bederson
by 5:00 p.m. on September 9, 2011.
Documents relied on by declarants: I understand that Samsung will be producing all
of the materials relied on by its declarants, and that these materials will be produced
sufficiently far in advance of the respective declarants’ depositions to allow for reasonable
preparation.
Documents related to RFP 166: as we discussed, Mr. Lee made a number of widelyreported comments about the redesign of the Galaxy Tab 10.1 following the announcement
of the iPad 2 on or about March 2, 2011. Because this request pertains to a single custodian
and is focused on the timeframe beginning in March 2011, it is already limited in scope.
Because Mr. Lee’s documents are presumably primarily in Korean, it is difficult for Apple to
provide search terms without additional information. At a minimum, a reasonable search in
this instance would include terms such as “Apple”, “A-company”, “iPad”, and related
terminology in both Korean and English.
LaunchTile executable: we have been unable to run the LaunchTile executable that
you provided to us. As discussed, please check that a complete, executable version of the
program is in your possession, and send us a copy.
Source code: I understand that you will let us know if Samsung intends to make
source code (e.g., RFPs 197, 201) available for inspection, and will provide us with
additional information in advance of the depositions of Messrs. Bederson, van Dam, and
Johnson.
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Melissa Chan, Esq.
September 7, 2011
Page Three
Marketing/market research/market studies/market analysis/surveys: I understand that
Samsung intends to produce documents responsive to requests that ask for these types of
documents, and will let us know of any restrictions applied in terms of collection and
production. You also agreed to let us know whether Samsung is a subscriber to the Gartner
and IDC reporting services.
Best Buy (RFP 216): based on our discussion, I understand that you will investigate
documents that Samsung has that may be responsive to this request, and then let us know
what Samsung intends to produce.
KHAN SUBPOENA
You explained that Samsung would investigate whether Mr. Khan has any documents
responsive to Apple’s subpoena, and that Mr. Khan’s objections should not be construed as a
refusal to produce any documents. Please confirm that Samsung will produce responsive
documents on the date noticed in the subpoena.
30(B)(6) NOTICE
Based on our discussion, I understand that Samsung’s designee will be prepared to
testify on all of Apple’s propounded topics. The following are issues which I understand
were clarified Friday.
iPod touch: Samsung’s designee will be prepared to testify on the iPod touch product
line in addition to the iPhone and iPad product lines mentioned in topics 1 and 9, and
contemplated by topic 18.
Marketing: Samsung’s designee will be prepared to testify on topics related to the
marketing of Samsung’s accused products, such as information about advertising, the
markets in which Samsung’s accused products are sold, and promotion of Samsung’s
accused products.
Accused functionality: Samsung’s designee will be prepared to testify on the
functionalities in Samsung’s products that have been accused of infringing the ’381 patent.
Considerations in design: Samsung’s designee will be prepared to testify on decisions
relating to aesthetics, functionality, and cost that were made by Samsung in developing the
accused Samsung products. You agreed to let us know if Samsung requires any further
clarification of the term “cost.”
Development of products not sold in the United States: you agreed to provide
clarification on your objection that Samsung would not provide testimony on the
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Melissa Chan, Esq.
September 7, 2011
Page Four
development of products that were not sold within the United States. To be clear, Apple
considers products that were developed outside the United States to be responsive to its
deposition notice, even if the products were renamed, rebranded, or modified as part of a
localization process for the U.S. market. You agreed to let us know if Samsung intends to
provide testimony that is less than the full design history of the accused Samsung products.
Alternatives considered by product developers: Samsung’s designee will be prepared
to testify on alternative designs and user interfaces considered during the development of
Samsung’s accused products. Again, Apple considers products that were developed outside
the United States to be responsive to its deposition notice, even if the products were
renamed, rebranded, or modified as part of a localization process for the U.S. market.
Knowledge of patents: Samsung’s designee will be prepared to testify on Samsung’s
knowledge of the patents at issue in Apple’s preliminary injunction motion. Apple is willing
to limit the scope of topic 10 to Samsung employees involved with the development of the
accused products, as well as Samsung employees in any division or group that researches or
monitors competitors’ technology or intellectual property rights.
Customer surveys: Samsung’s designee will be prepared to testify on customer
surveys that relate to issues such as design and functionality, but not on surveys on subjects
such as sound quality.
Consumer confusion: Samsung’s designee will be prepared to testify on instances of
consumer confusion as they relate to Samsung’s accused products and Apple’s iPod touch,
iPhone, and iPad lines of products.
We look forward to receiving the proposals described above and are available to
discuss anything that does not comport with your understanding of what was discussed
during Friday’s meet and confer.
Sincerely,
Jason R. Bartlett
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