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

Filing 463

ADMINISTRATIVE MOTION for Temporary Relief Regarding Lead Counsel Meet and Confer Requirement filed by Apple Inc.. Responses due by 12/12/2011. (Attachments: #1 Declaration, #2 Exhibit A, #3 Exhibit B, #4 Exhibit C, #5 Exhibit D, #6 Exhibit E, #7 Proposed Order)(Jacobs, Michael) (Filed on 12/8/2011) Modified text on 12/9/2011 (dhm, COURT STAFF).

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HAROLD J. MCELHINNY (CA SBN 66781)
[e-mail]
MICHAEL A. JACOBS (CA SBN 111664)
[e-mail]
JENNIFER LEE TAYLOR (CA SBN 161368)
[e-mail]
ALISON M. TUCHER (CA SBN 171363)
[e-mail]
RICHARD S.J. HUNG (CA SBN 197425)
[e-mail]
JASON R. BARTLETT (CA SBN 214530)
[e-mail]
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: [phone]
Facsimile: [phone]

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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]

Attorneys for Plaintiff and
Counterclaim-Defendant APPLE INC.

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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,

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Plaintiff,
v.
SAMSUNG ELECTRONICS CO., LTD., a
Korean corporation; SAMSUNG
ELECTRONICS AMERICA, INC., a New
York corporation; and SAMSUNG
TELECOMMUNICATIONS AMERICA,
LLC, a Delaware limited liability company,

Case No. 11-cv-01846-LHK (PSG)
APPLE’S ADMINISTRATIVE
MOTION FOR TEMPORARY
RELIEF REGARDING LEAD
COUNSEL MEET AND CONFER
REQUIREMENT
Judge:

Defendants.

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APPLE’S ADMINISTRATIVE MOTION FOR RELIEF RE MEET AND CONFER
CASE NO. 11-CV-01846-LHK (PSG)
sf-3080258

Hon. Lucy H. Koh

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In accordance with Northern District of California Local Rule 7-11, Apple submits this

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administrative motion for temporary, limited relief from the “lead trial counsel . . . meet and

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confer” requirement set forth in the Court’s Minute Order and Case Management Order [D.N.

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187] (“CMC Order”).

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Apple has requested that Samsung agree to substantially complete its production of core

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design, marketing, and technical documents by a date certain before the winter holidays. Apple

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needs these documents to prepare for depositions expected to take place during January 2012.

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As detailed in the Declaration of Michael A. Jacobs filed herewith (“Jacobs Decl.”),
Apple made a diligent, good-faith effort to schedule a meeting with Samsung’s lead trial counsel,

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Charles Verhoeven, to discuss the issues in Apple’s motion to compel in person (or otherwise).

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During two non-lead-trial counsel meetings and in multiple follow-up letters, Apple informed

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Samsung that it intended, if the parties were unable to reach agreement, to file the motion on

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December 8, for a proposed hearing on shortened time on or before December 16. (Jacobs Decl.

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¶¶ 5–6.) Apple also informed Samsung that Judge Grewal’s calendar reflects his unavailability to

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hear matters during the week of December 19, 2011.

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Samsung responded that Mr. Verhoeven is currently in trial on the East Coast and will not

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be available to meet and confer in person until December 19, 2011. (Id. ¶ 9 & Ex. C.) Apple

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suggested that the parties file a joint stipulation requesting leave for lead counsel to meet and

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confer telephonically on this occasion, but Samsung did not agree to join that stipulation. (Id.)

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Samsung also did not indicate that Mr. Verhoeven would make himself available by telephone

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before December 19, 2011, in any event. (Id. ¶¶ 9–13 & Exs. C–E.) Samsung further has

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represented that all of its counsel are unavailable the following week, from December 26, 2011,

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through January 1, 2012. (Id. ¶ 4.)

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Against this background, Apple’s motion to compel must be heard on or about

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December 16, 2011, or it cannot be heard until January 2012, and thus Apple cannot wait until

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December 19 for a lead counsel meet-and-confer to take place. A January 2012 hearing on

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Apple’s motion to compel would prejudice Apple’s ability to proceed with discovery in a timely,

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orderly fashion. There is a March 8, 2012 fact discovery cutoff in this case. Depositions
APPLE’S ADMINISTRATIVE MOTION FOR RELIEF RE MEET AND CONFER
CASE NO. 11-CV-01846-LHK (PSG)
sf-3080258

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therefore need to begin promptly in January 2012. Apple has noticed 37 depositions of design,

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marketing, and technical witnesses expected to take place in January 2012. For its part, Samsung

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has now noticed 39 depositions of Apple witnesses.

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Despite weekly, hours-long meet-and-confer calls between non-lead counsel, however,

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Samsung has produced almost no documents relating to Apple’s offensive case since its

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Preliminary Injunction production in early October 2011. Since October 13, 2011, the date of the

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Preliminary Injunction hearing in this case, Samsung has produced only 71 documents totaling

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241 pages in connection with Apple’s infringement claims against Samsung. (See Declaration of

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Minn Chung in Support of Apple’s Motion to Compel Production of Documents and Things, filed

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concurrently herewith, at ¶ 3.) All of those 71 documents were attachments that had been missing

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from e-mails Samsung had produced with its Preliminary Injunction production. (Id.) Apple,

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meanwhile, has produced over one million pages in connection with its infringement claims

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against Samsung. (Id.)

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Once Apple receives documents from Samsung, Apple will need to translate Samsung’s

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Korean-language documents, analyze highly technical materials and source code, and piece

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together the design history of over thirty Samsung accused products before travelling to Korea to

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take depositions. Apple will also need significant time to review any materials that are produced

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to determine if anything is missing and plan further discovery. If Apple does not receive

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production of the core design, marketing, and technical documents sought in the motion to

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compel well before January 2012, Apple’s ability to conduct meaningful depositions and properly

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defend its own witnesses in depositions will be unduly compromised.

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For the foregoing reasons, Apple respectfully requests relief from the Court’s “lead trial
counsel . . . meet and confer” requirement for purposes of Apple’s motion to compel.
Dated: December 8, 2011

MORRISON & FOERSTER LLP

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By:

/s/ Michael A. Jacobs
Michael A. Jacobs

Attorneys for Plaintiff
APPLE INC.

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APPLE’S ADMINISTRATIVE MOTION FOR RELIEF RE MEET AND CONFER
CASE NO. 11-CV-01846-LHK (PSG)
sf-3080258

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