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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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 OPPOSITION TO
SAMSUNG’S ADMINISTRATIVE
MOTION FOR RELIEF REGARDING
LEAD COUNSEL MEET AND
CONFER REQUIREMENT
Judge:

Hon. Lucy H. Koh

Defendants.

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APPLE’S OPPOSITION TO SAMSUNG’S ADMINISTRATIVE MOTION FOR RELIEF RE MEET AND CONFER
CASE NO. 11-CV-01846-LHK (PSG)
sf-3082120

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Apple respectfully opposes Samsung’s request for relief from the “lead trial counsel . . .

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meet and confer” requirement of the Court’s Minute Order and Case Management Order [D.N.

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187] (“CMC Order”). In its CMC Order, the Court required that the parties’ lead counsel meet

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and confer in person before filing a discovery motion. Apple’s lead trial counsel is available for

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the in-person meet and confer tomorrow and has stated as much, but Samsung has declined this

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offer. Samsung simply cannot show that it has made any good-faith effort to comply with the

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Court’s requirement.

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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

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meet and confer with Samsung since at least November 30, 2011. (See Declaration of Michael

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Jacobs in Support of Apple’s Administrative Motion for Temporary Relief Regarding Lead

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Counsel Meet and Confer Requirement (“Jacobs Decl.”) at ¶ 5.) The purpose of the meeting was

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to address both parties’ outstanding discovery issues. (Id. at ¶ 3, 5.)

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On November 30, 2011, Apple proposed December 5, 6, or 7, 2011 for this meeting. (Id.

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at ¶ 5.) Apple explained that scheduling this meeting was urgent, as it would be difficult to have

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the parties’ discovery disputes heard before the end of the year if this meeting did not occur

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immediately. (Id. at ¶ 7.)

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Apple’s first request for this meeting was met with silence. (Id. at ¶ 5.) Accordingly, on

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December 2, 2011, Apple’s lead counsel reached out to Samsung’s lead counsel directly to try to

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schedule this meeting. (Id. at ¶ 8.) Apple’s lead counsel again explained that the meet-and-

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confer session was intended to address both parties’ issues, and he reiterated his willingness to

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meet at any time on December 5, 6, or 7, 2011. (Id. at ¶ 8.)

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When Samsung’s lead counsel finally responded on December 3, 2011, he explained that

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he was in the middle of a trial on the East Coast and thus unavailable for an in-person meeting

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before December 19, 2011. (Id. at ¶ 9.) Upon learning of this, Apple’s lead counsel proposed

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that the parties seek the Court’s leave to conduct the meet and confer telephonically. This was

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because—as he explained to Samsung’s lead counsel—Apple’s lead counsel was about to depart

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APPLE’S OPPOSITION TO SAMSUNG’S ADMINISTRATIVE MOTION FOR RELIEF RE MEET AND CONFER
CASE NO. 11-CV-01846-LHK (PSG)
sf-3082120

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for Tokyo on Friday, December 9, 2011, and would himself have limited availability after that

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date. (Id. at ¶ 8, 9.)

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But despite repeated follow-up requests via e-mail, letters, and teleconference, Samsung

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never identified any dates before December 19, 2011, for its lead counsel’s availability (whether

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in-person or by phone). (Id. at ¶¶ 7, 9, 12–14.) Apple thus was forced to seek temporary, limited

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relief from the Court’s meet-and-confer requirement on December 8, 2011, for its motion to

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compel.

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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

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Grewal’s order shortening time, Samsung’s opposition is due on Wednesday, December 14, 2011,

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and the hearing is scheduled for Friday, December 16, 2011.

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Samsung’s Sudden Availability to Meet and Confer on Its Own Discovery Issues. Only

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after the Court granted Apple temporary relief from the in-person meet-and-confer requirement

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did Samsung express any interest in scheduling an immediate meet and confer. On Saturday,

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December 10, 2011, at 3:25 p.m. Pacific time, Samsung e-mailed Apple to demand a telephonic

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lead trial counsel meet-and-confer less than 24 hours later, at 2 p.m. Pacific time on Sunday,

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December 11. (See Declaration of Mia Mazza in Support of Apple’s Opposition to Samsung’s

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Administrative Motion for Relief Regarding Lead Counsel Meet and Confer Requirement

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(“Mazza Decl.”), ¶ 2 & Ex. A.) Samsung proposed this time even though it knew that Apple’s

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lead counsel had already left for Tokyo and the proposed time corresponded to early morning

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Tokyo time.

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Apple responded to Samsung’s sudden, allegedly urgent request to meet and confer by

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noting that the time difference made such a meet and confer difficult. (Id. ¶ 3 & Ex. B.) Apple

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offered, however, to make its lead trial counsel available for the in-person meet and confer on

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Tuesday, December 13, 2011, within hours of his flight’s landing in the Bay Area. (Id.)

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Rather than accept Apple’s offer, Samsung informed Apple that it would be seeking relief

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from the Court’s meet-and-confer requirement. (Id. ¶ 4 & Ex. C.) As of the filing of this

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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

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own discovery issues besides its proposal of 7 a.m. Tokyo time on December 11, 2011, or its

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prior proposal of December 19, 2011.

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Samsung’s gamesmanship in dodging Apple’s own meet and confer requests—but then

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demanding a middle-of-the-night meet and confer and rejecting an in-person meeting less than 24

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hours from now—is plain. Samsung cannot demonstrate that it has made good-faith efforts to

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satisfy the Court’s requirement—a requirement intended to reduce the parties’ discovery disputes.

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Apple’s trial counsel is available tomorrow. Both in view of its gamesmanship and its failure to

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comply (or try to comply) with the Court’s requirement, Samsung’s motion for administrative

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relief should be denied.1

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Dated: December 13, 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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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.

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APPLE’S OPPOSITION TO SAMSUNG’S ADMINISTRATIVE MOTION FOR RELIEF RE MEET AND CONFER
CASE NO. 11-CV-01846-LHK (PSG)
sf-3082120

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