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

Filing 467

Administrative Motion to File Under Seal filed by Apple Inc.. (Attachments: #1 Exhibit Motion to Compel, #2 Exhibit Mazza Declaration, #3 Exhibit Ex. 1 to Mazza Decl, #4 Exhibit Ex. 2 to Mazza Decl, #5 Exhibit Ex. 3 to Mazza Decl, #6 Exhibit Ex. 4 to Mazza Decl, #7 Exhibit Ex. 5 to Mazza Decl, #8 Exhibit Ex. 6 to Mazza Decl, #9 Exhibit Ex. 7 to Mazza Decl, #10 Exhibit Ex. 8 to Mazza Decl, #11 Exhibit Ex. 9 to Mazza Decl, #12 Exhibit Ex. 10 to Mazza Decl, #13 Exhibit Ex. 11 to Mazza Decl, #14 Exhibit Ex. 12 to Mazza Decl, #15 Exhibit Ex. 13 to Mazza Decl, #16 Exhibit Ex. 14 to Mazza Decl, #17 Exhibit Ex. 15 to Mazza Decl, #18 Exhibit Ex. 16 to Mazza Decl, #19 Exhibit Ex. 17 to Mazza Decl, #20 Exhibit Ex. 18 to Mazza Decl, #21 Proposed Order)(Jacobs, Michael) (Filed on 12/8/2011) Modified on 12/15/2011 (feriab, COURT STAFF). (Attachment 10 replaced on 12/21/2011) (sp, COURT STAFF). (Attachment 16 replaced on 12/21/2011) (sp, COURT STAFF). PURSUANT TO ORDER #523 DOCUMENTS 467-10 AND 467-16 REMOVED. Modified on 12/21/2011 (sp, 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]

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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.,

Case No.

11-cv-01846-LHK

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Plaintiff,
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v.
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DECLARATION OF MIA MAZZA
IN SUPPORT OF MOTION TO
COMPEL PRODUCTION OF
DOCUMENTS AND THINGS

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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PUBLIC REDACTED VERSION
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DECLARATION OF MIA MAZZA ISO APPLE’S MOTION TO COMPEL
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I, Mia Mazza, 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 Production of Documents and Things.

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2.

The parties’ non-lead trial counsel have met and conferred weekly since

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October 19, 2011, except for the week of Thanksgiving, in an attempt to resolve discovery issues

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and negotiate the parameters of each party’s production. During these negotiations, and in

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follow-up correspondence, Apple has identified discrete categories of core technical, design, and

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marketing documents that it must receive immediately to prepare for the upcoming depositions of

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37 Samsung witnesses, expected to take place in January 2012. Despite repeated requests from

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Apple, however, Samsung has refused to commit to substantially completing its production of

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these documents by a date certain before the winter holidays.

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3.

Apple has filed concurrently an Administrative Motion for Temporary Relief from

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Lead Counsel Meet and Confer Requirement, requesting limited relief from the provision in the

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Court’s Minute Order and Case Management Order [D.N. 187] that requires the parties’ lead trial

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counsel to meet and confer in person before a discovery motion is filed. As detailed in the

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Administrative Motion, and the Declaration of Michael A. Jacobs in Support of that motion,

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Apple has made a diligent, good faith effort to confer with Samsung’s lead trial counsel in person

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(or otherwise) before filing this motion, but was unsuccessful in doing so.

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Source Code and Technical Documents

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4.

Apple served its Infringement Contentions on August 26, 2011. The contentions

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identified the features in Samsung’s products that allegedly infringed Apple’s patents. Samsung

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subsequently alleged that Apple’s Infringement Contentions were inadequate, claiming that they

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failed to cite to source code and technical specifications.

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5.

Attached hereto as Exhibit 1 is a true and correct copy of the Invalidity

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Contentions Samsung served on October 7, 2011. Samsung’s Invalidity Contentions stated that

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Samsung would produce source code for inspection. As of the date of this Declaration, however,

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Samsung has not produced any source code for inspection in Apple’s offensive action. In

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Samsung’s own offensive action, Samsung has made source code available for inspection related

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to the conception and reduction to practice of its 3G patents, so Samsung is generally capable of

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producing source code for inspection.

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6.

Attached hereto as Exhibit 2 is a true and correct copy of a November 9, 2011,

letter from Apple’s counsel to Samsung’s counsel identifying specific categories of source code

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and other technical information. The letter requested that Samsung frontload those specific

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categories in its production and produce the documents as quickly as possible. The items

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requested in that letter relate to the operation of one or more of the allegedly infringing features

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previously identified in Apple’s Infringement Contentions.

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7.

During the parties’ November 9, 2011, meet and confer session, Samsung’s

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counsel promised to respond to Apple’s November 9, 2011, letter right away. She did not.

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Instead, in a November 20, 2011, letter Samsung’s counsel stated that she still needed to “confer

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with Samsung” regarding the requested technical documents. Attached hereto as Exhibit 3 is a

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true and correct copy of that November 20, 2011, letter.

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8.

Attached hereto as Exhibit 4 is a true and correct copy of a November 23, 2011,

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letter from Apple’s counsel to Samsung’s counsel, again raising the need for the source code and

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other technical documents identified in the November 9, 2011, letter and requesting that

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Samsung’s counsel identify, by no later than November 30, a date certain by which Samsung’s

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production to the listed items would be substantially complete.

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9.

Attached hereto as Exhibit 5 is a true and correct copy of a November 28, 2011,

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letter from Apple’s counsel to Samsung’s counsel, requesting immediate production of the

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categories of source code and other technical documents identified in the November 9, 2011,

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letter.

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10.

During the parties’ November 30, 2011, meet and confer session, Apple further

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explained the reasons why it needed immediate access to this source code and related technical

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documents, and Apple asked Samsung to commit to substantially completing its production of the

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source code and other technical documents by December 15, 2011. Samsung declined to make

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that commitment, arguing that Apple did not have a near-term need for the information.

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11.

Attached hereto as Exhibit 6 is a true and correct copy of a December 6, 2011,

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letter from Apple’s counsel to Samsung’s counsel, providing a further narrowed listing of

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categories of source code and other technical documents for expedited production and requesting

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that Samsung agree to substantially complete its production of those even more limited categories

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by December 15, 2011.
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During the parties’ December 7, 2011, meet and confer session and in follow-up

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correspondence (attached hereto as Exhibit 7), Apple asked Samsung to agree in writing that it

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would substantially complete its production of the limited categories of source code and other

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technical documents on or about December 15, 2011. Samsung declined to make that agreement.

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Design Files, Surveys, and Documents Referencing Apple’s Products

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13.

Apple has diligently pursued production of Samsung’s design history documents,

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including Samsung’s design files, relevant surveys, and documents discussing Apple’s products.

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Those documents were the subject of Apple’s first motion to compel, which the Court granted in

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part on September 28, 2011. Following the Court’s September 28, 2011, Order, Apple has

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written to Samsung multiple times regarding production of Samsung’s design decision

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documents. Some of that correspondence is summarized below and attached as Exhibits hereto.

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14.

Attached hereto as Exhibit 8 is a true and correct copy of a September 29, 2011,

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letter from Apple’s counsel to Samsung’s counsel. In the letter, Apple asked Samsung to produce

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its design history files, including CAD files, by the October 7, 2011, deadline set by the Court’s

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September 28, 2011, Order. Samsung had previously represented to the Court that it already had

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produced these documents or would produce them shortly. Attached hereto as Exhibit 9 is a true

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and correct copy of an October 3, 2011 letter sent by Samsung’s counsel in response, arguing that

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the September 28, 2011, Order did not obligate Samsung to produce those documents.
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15.

Attached hereto as Exhibit 10 is a true and correct copy of an October 10, 2011,

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letter from Apple’s counsel to Samsung’s counsel identifying specific deficiencies in Samsung’s

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production pursuant to the Court’s September 28, 2011 Order. It notes that Samsung did not use

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the search term “Apple” when searching the files of its relevant custodians. It also points out that,

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according to Samsung’s discovery disclosures, Samsung had not searched any marketing central

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files or custodians for survey documents. Accordingly, Samsung’s searches had not uncovered

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all documents responsive to the Court’s Order.

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16.

Attached hereto as Exhibit 11 is a true and correct copy of an October 13, 2011,

letter from Apple’s counsel to Samsung’s counsel. The letter asks Samsung to produce several

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categories of documents responsive to Apple’s requests for production, including requests related

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to Samsung’s design decisions and its analysis of Apple’s products.

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Attached hereto as Exhibit 12 is a true and correct copy of an October 19, 2011,

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letter from Apple’s counsel to Samsung’s counsel. The letter again discusses the deficiencies in

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Samsung’s production of design-decision documents pursuant to the Court’s September 28, 2011

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Order.

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18.

Attached hereto as Exhibit 13 is a true and correct copy of a November 4, 2011

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letter from Apple’s counsel to Samsung’s counsel discussing Samsung’s failure to comply with

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the Court’s September 28, 2011 Order. In order to obtain Samsung’s cooperation, Apple offered

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to search its own documents for the term “Samsung” provided Samsung would agree to search its

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documents for the term “Apple.” The letter notes that the parties should continue to use other

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relevant search terms when searching their documents.

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19.

Attached hereto as Exhibit 14 is a true and correct copy of a November 15, 2011,

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letter from Apple’s counsel to Samsung’s counsel, again proposing that the parties each use the

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other’s name as a search term in searching the files of relevant custodians. The letter proposes

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reciprocal production of these documents by November 30, 2011.

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20.

Attached hereto as Exhibit 15 is a true and correct copy of a November 16, 2011,

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letter from Apple’s counsel to Samsung’s counsel, requesting Samsung to immediately produce a

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specific set of survey documents referencing Apple or Apple’s products.
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21.

Attached hereto as Exhibit 16 is a true and correct copy of a November 20, 2011,

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letter from Apple’s counsel to Samsung’s counsel, stating that Apple expected Samsung to

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complete its production of “Apple” and survey documents by November 30, 2011. To avoid

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unnecessary sealing issues, two minor references to Apple confidential information that are

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irrelevant to the motion have been redacted.

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22.

In its November 23, 2011, letter (attached hereto as Exhibit 4), Apple asked

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Samsung to substantially complete production of survey documents pursuant to the Court’s

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September 28 Order.

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23.

During the parties’ December 7, 2011, meet-and-confer session and in follow-up

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correspondence (attached hereto as Exhibit 7), Apple asked Samsung to agree in writing that it

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would substantially complete its production of “Apple” and survey documents on or about

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December 15, 2011. Samsung declined to make that agreement.

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Scheduling Substantial Completion of Production

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24.

Attached hereto as Exhibit 4 is a true and correct copy of a November 23, 2011

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letter from Apple’s counsel to Samsung’s counsel stating, among other things, that Apple

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expected Samsung, by November 30, 2011, to substantially complete its production of survey and

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“Apple” documents and to provide a date certain for substantial completion of its production of

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source code and other technical documents.

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25.

Attached hereto as Exhibit 17 is a true and correct copy of a December 5, 2011,

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letter from Apple’s counsel to Samsung’s counsel summarizing the parties’ agreements regarding

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Samsung’s production of “Apple” and survey documents, and requesting that Samsung agree to

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substantially complete its production of those documents on December 15, 2011.

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26.

As discussed in paragraph 11 above, on December 6, 2011, Apple’s counsel sent a

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letter to Samsung’s counsel (attached hereto as Exhibit 6) setting forth a limited set of source

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code and other technical documents and requesting that Samsung agree to substantially complete

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its production of this limited set of documents by December 15, 2011.

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Attached hereto as Exhibit 18 is a true and correct copy of a December 6, 2011,

letter from Apple’s counsel to Samsung’s counsel setting forth a proposed schedule for
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substantial completion of Samsung’s production of a limited set of Samsung design history

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documents and things between December 23, 2011 and December 31, 2011.

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28.

During the parties’ December 7, 2011, meet-and-confer session, and in follow-up

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correspondence attached hereto as Exhibit 7, Apple asked Samsung to agree in writing that it

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would substantially complete its production of “Apple” documents, survey documents, and source

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code and other technical documents on or about December 15, 2011. Apple further asked

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Samsung to agree in writing that it would substantially complete its production of sketchbooks

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and physical models on or about December 23, 2011, and its production of physical models on or

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about December 31, 2011. Samsung declined to make that agreement.

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I declare under penalty of perjury that the foregoing is true and correct. Executed this 8th
day of December, 2011 at San Francisco, California.
/s/ Mia Mazza
Mia Mazza

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ATTESTATION OF E-FILED SIGNATURE
I, Michael A. Jacobs, am the ECF User whose ID and password are being used to file this

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Declaration. In compliance with General Order 45, X.B., I hereby attest that Mia Mazza has

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concurred in this filing.

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Dated: December 8, 2011

/s/ Michael A. Jacobs
Michael A. Jacobs

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