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

Filing 484

OPPOSITION to (re 480 ADMINISTRATIVE MOTION for Relief Regarding Lead Counsel Meet and Confer Requirement ) filed by Apple Inc.. (Jacobs, Michael) (Filed on 12/13/2011) Modified text on 12/14/2011 (dhm, COURT STAFF).

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1 2 3 4 5 6 7 8 9 HAROLD J. MCELHINNY (CA SBN 66781) hmcelhinny@mofo.com MICHAEL A. JACOBS (CA SBN 111664) mjacobs@mofo.com JENNIFER LEE TAYLOR (CA SBN 161368) jtaylor@mofo.com ALISON M. TUCHER (CA SBN 171363) atucher@mofo.com RICHARD S.J. HUNG (CA SBN 197425) rhung@mofo.com JASON R. BARTLETT (CA SBN 214530) jasonbartlett@mofo.com MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: (415) 268-7000 Facsimile: (415) 268-7522 10 11 12 WILLIAM F. LEE william.lee@wilmerhale.com WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 Telephone: (617) 526-6000 Facsimile: (617) 526-5000 MARK D. SELWYN (SBN 244180) mark.selwyn@wilmerhale.com WILMER CUTLER PICKERING HALE AND DORR LLP 950 Page Mill Road Palo Alto, California 94304 Telephone: (650) 858-6000 Facsimile: (650) 858-6100 Attorneys for Plaintiff and Counterclaim-Defendant APPLE INC. 13 14 UNITED STATES DISTRICT COURT 15 NORTHERN DISTRICT OF CALIFORNIA 16 SAN JOSE DIVISION 17 18 APPLE INC., a California corporation, 19 20 21 22 23 24 25 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 OPPOSITION TO SAMSUNG’S ADMINISTRATIVE MOTION FOR RELIEF REGARDING LEAD COUNSEL MEET AND CONFER REQUIREMENT Judge: Hon. Lucy H. Koh Defendants. 26 27 28 APPLE’S OPPOSITION TO SAMSUNG’S ADMINISTRATIVE MOTION FOR RELIEF RE MEET AND CONFER CASE NO. 11-CV-01846-LHK (PSG) sf-3082120 1 Apple respectfully opposes Samsung’s request for relief from the “lead trial counsel . . . 2 meet and confer” requirement of the Court’s Minute Order and Case Management Order [D.N. 3 187] (“CMC Order”). In its CMC Order, the Court required that the parties’ lead counsel meet 4 and confer in person before filing a discovery motion. Apple’s lead trial counsel is available for 5 the in-person meet and confer tomorrow and has stated as much, but Samsung has declined this 6 offer. Samsung simply cannot show that it has made any good-faith effort to comply with the 7 Court’s requirement. 8 9 Samsung’s Previous Refusal to Meet and Confer on Apple’s Issues. As Apple explained in its own administrative motion last week, Apple has been trying to schedule a lead trial counsel 10 meet and confer with Samsung since at least November 30, 2011. (See Declaration of Michael 11 Jacobs in Support of Apple’s Administrative Motion for Temporary Relief Regarding Lead 12 Counsel Meet and Confer Requirement (“Jacobs Decl.”) at ¶ 5.) The purpose of the meeting was 13 to address both parties’ outstanding discovery issues. (Id. at ¶ 3, 5.) 14 On November 30, 2011, Apple proposed December 5, 6, or 7, 2011 for this meeting. (Id. 15 at ¶ 5.) Apple explained that scheduling this meeting was urgent, as it would be difficult to have 16 the parties’ discovery disputes heard before the end of the year if this meeting did not occur 17 immediately. (Id. at ¶ 7.) 18 Apple’s first request for this meeting was met with silence. (Id. at ¶ 5.) Accordingly, on 19 December 2, 2011, Apple’s lead counsel reached out to Samsung’s lead counsel directly to try to 20 schedule this meeting. (Id. at ¶ 8.) Apple’s lead counsel again explained that the meet-and- 21 confer session was intended to address both parties’ issues, and he reiterated his willingness to 22 meet at any time on December 5, 6, or 7, 2011. (Id. at ¶ 8.) 23 When Samsung’s lead counsel finally responded on December 3, 2011, he explained that 24 he was in the middle of a trial on the East Coast and thus unavailable for an in-person meeting 25 before December 19, 2011. (Id. at ¶ 9.) Upon learning of this, Apple’s lead counsel proposed 26 that the parties seek the Court’s leave to conduct the meet and confer telephonically. This was 27 because—as he explained to Samsung’s lead counsel—Apple’s lead counsel was about to depart 28 APPLE’S OPPOSITION TO SAMSUNG’S ADMINISTRATIVE MOTION FOR RELIEF RE MEET AND CONFER CASE NO. 11-CV-01846-LHK (PSG) sf-3082120 1 1 for Tokyo on Friday, December 9, 2011, and would himself have limited availability after that 2 date. (Id. at ¶ 8, 9.) 3 But despite repeated follow-up requests via e-mail, letters, and teleconference, Samsung 4 never identified any dates before December 19, 2011, for its lead counsel’s availability (whether 5 in-person or by phone). (Id. at ¶¶ 7, 9, 12–14.) Apple thus was forced to seek temporary, limited 6 relief from the Court’s meet-and-confer requirement on December 8, 2011, for its motion to 7 compel. 8 9 The Court granted Apple’s requested relief on December 9, 2011, and Judge Grewal granted Apple’s motion to shorten time on its motion to compel later that same day. Per Judge 10 Grewal’s order shortening time, Samsung’s opposition is due on Wednesday, December 14, 2011, 11 and the hearing is scheduled for Friday, December 16, 2011. 12 Samsung’s Sudden Availability to Meet and Confer on Its Own Discovery Issues. Only 13 after the Court granted Apple temporary relief from the in-person meet-and-confer requirement 14 did Samsung express any interest in scheduling an immediate meet and confer. On Saturday, 15 December 10, 2011, at 3:25 p.m. Pacific time, Samsung e-mailed Apple to demand a telephonic 16 lead trial counsel meet-and-confer less than 24 hours later, at 2 p.m. Pacific time on Sunday, 17 December 11. (See Declaration of Mia Mazza in Support of Apple’s Opposition to Samsung’s 18 Administrative Motion for Relief Regarding Lead Counsel Meet and Confer Requirement 19 (“Mazza Decl.”), ¶ 2 & Ex. A.) Samsung proposed this time even though it knew that Apple’s 20 lead counsel had already left for Tokyo and the proposed time corresponded to early morning 21 Tokyo time. 22 Apple responded to Samsung’s sudden, allegedly urgent request to meet and confer by 23 noting that the time difference made such a meet and confer difficult. (Id. ¶ 3 & Ex. B.) Apple 24 offered, however, to make its lead trial counsel available for the in-person meet and confer on 25 Tuesday, December 13, 2011, within hours of his flight’s landing in the Bay Area. (Id.) 26 Rather than accept Apple’s offer, Samsung informed Apple that it would be seeking relief 27 from the Court’s meet-and-confer requirement. (Id. ¶ 4 & Ex. C.) As of the filing of this 28 opposition, Samsung has never offered a single time for its availability to meet and confer on its APPLE’S OPPOSITION TO SAMSUNG’S ADMINISTRATIVE MOTION FOR RELIEF RE MEET AND CONFER CASE NO. 11-CV-01846-LHK (PSG) sf-3082120 2 1 own discovery issues besides its proposal of 7 a.m. Tokyo time on December 11, 2011, or its 2 prior proposal of December 19, 2011. 3 Samsung’s gamesmanship in dodging Apple’s own meet and confer requests—but then 4 demanding a middle-of-the-night meet and confer and rejecting an in-person meeting less than 24 5 hours from now—is plain. Samsung cannot demonstrate that it has made good-faith efforts to 6 satisfy the Court’s requirement—a requirement intended to reduce the parties’ discovery disputes. 7 Apple’s trial counsel is available tomorrow. Both in view of its gamesmanship and its failure to 8 comply (or try to comply) with the Court’s requirement, Samsung’s motion for administrative 9 relief should be denied.1 10 Dated: December 13, 2011 MORRISON & FOERSTER LLP 11 By: /s/ Michael A. Jacobs Michael A. Jacobs Attorneys for Plaintiff APPLE INC. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 Samsung’s haste to move to compel without meeting and conferring is plain. On the morning of December 12, 2011, Samsung’s counsel wrote to Apple’s counsel indicating Samsung’s intent to move on just one issue―its “second motion to compel” regarding Itay Sherman. (Mazza Decl. ¶ 4 & Ex. C.) Samsung’s concurrently filed motion to compel seeks far greater relief, however. 28 APPLE’S OPPOSITION TO SAMSUNG’S ADMINISTRATIVE MOTION FOR RELIEF RE MEET AND CONFER CASE NO. 11-CV-01846-LHK (PSG) sf-3082120 3

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