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

Filing 399

ORDER re #327 APPLES UNOPPOSED ADMINISTRATIVE MOTION TO FILE DOCUMENTS UNDER SEAL filed by Apple Inc. Order DENYING Apple's Motion for Protective Order. Signed by Judge Paul S. Grewal on 11/16/2011. (psglc2, COURT STAFF) (Filed on 11/16/2011)

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UNITED STATES DISTRICT COURT

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United States District Court
For the Northern District of California

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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APPLE INC.,

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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; and SAMSUNG
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TELECOMMUNICATIONS AMERICA, LLC,
a Delaware limited liability company,

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ORDER DENYING PLAINTIFF’S
MOTION FOR PROTECTIVE
ORDER
(Re: Docket No. 327)

Defendants.

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Case No.: C 11-1846 LHK (PSG)

The Local Rules of the Northern District require that attorneys "practice with the honesty,
care and decorum required for the fair and efficient administration of justice."1 By a motion filed at

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3:25 AM on October 27, 2011 for a protective order prohibiting a particular attorney from
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participating in any further depositions in this case on behalf of his clients Samsung Electronics

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Co., Ltd., Samsung Electronics America, Inc., and Samsung Telecommunications America, LLC

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(collectively, "Samsung"), Apple Inc. (“Apple”) charges the Samsung attorney with trampling

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Civil L.R. 11-4(a)(4).

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Case No.: C 11-1846 LHK (PSG)
ORDER DENYING PLAINTIFF’S MOTION FOR PROTECTIVE ORDER

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upon these standards. In the alternative, Apple asks for an order restricting the attorney from
engaging in particularly abusive deposition acts, including:

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belligerent and insulting treatment of witnesses;
repeated interruptions of witnesses and counsel;
unilaterally terminating a deposition because he disliked a witness’s answers;
asking the same question without modification despite requests for clarification or
repetition of answers by witnesses;
refusing to permit a witness to leave a deposition despite exceeding the seven hour time
limit in the Federal Rule by nearly forty minutes;
uncivil treatment of opposing counsel;
engaging in lengthy colloquy on the record; and
disregarding other requirements imposed by the Federal Rules of Civil Procedure.

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United States District Court
For the Northern District of California

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Apple characterizes the attorney’s conduct as nothing less than "inappropriate," "abusive,"

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"harassing," "contemptuous," and "mocking." Samsung, to put it mildly, objects. Relying upon the

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fact that the majority of the deponents are Apple’s patent lawyers and agents “who are accustomed

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to the adversarial process,” techniques taught in deposition textbooks, and the exacting standards

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applicable to a disqualification motion, Samsung denies that Apple has shown “compelling”

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grounds for interfering with its due process rights. At oral argument, Samsung even went so far as

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to deny – repeatedly – that the attorney had done even one thing wrong in his actions towards
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either opposing counsel or witnesses.

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And so the court confronts a circumstance in which two sophisticated parties, represented

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by equally sophisticated and reputable law firms, confront the identical set of actions and yet urge

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diametrically opposite conclusions. In support of their respective positions, both sides file

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transcript after transcript. Both sides encourage the review of deposition DVD after deposition

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DVD. And yet, remarkably, neither side confronts or even truly acknowledges evidence

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undermining its preferred conclusion, in textbook examples of what psychologists refer to as
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"confirmation bias." Nor does either side point to even one instance in which it followed Judge

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Koh's explicit instructions for lead trial counsel to meet in person before imposing on the court

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what is essentially a motion to behave.
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Case No.: C 11-1846 LHK (PSG)
ORDER DENYING PLAINTIFF’S MOTION FOR PROTECTIVE ORDER

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In light of this unfortunate record of non-compliance with Judge Koh's instructions, the

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court denies Apple's motion. These instructions were not optional, and at no point have the parties

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sought relief from these instructions even after the undersigned reminded them of that opportunity.

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The court must therefore decline to share the conclusions it has reached about what is depicted in

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the transcripts and DVDs stacked on the court's desk.

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United States District Court
For the Northern District of California

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Dated: November 16, 2011
_________________________________
PAUL S. GREWAL
United States Magistrate Judge

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Case No.: C 11-1846 LHK (PSG)
ORDER DENYING PLAINTIFF’S MOTION FOR PROTECTIVE ORDER