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

Filing 502

Administrative Motion to File Under Seal filed by Apple Inc.. (Attachments: #1 Declaration, #2 Proposed Order, #3 Exhibit Apple's Opposition to Samsung's Motion to Compel, #4 Mazza Decl ISO Apple's Opposition to Samsung's Motion to Compel, #5 Ex. 1 to Mazza Decl ISO Apple's Opposition to Samsung's Motion to Compel, #6 Ex. 2 to Mazza Decl ISO Apple's Opposition to Samsung's Motion to Compel, #7 Proposed Order Denying Samsung's Motion to Compel, #8 Apple's Opposition to Samsung's Motion to Permit Samsung's Expert Itay Sherman to Review Design Materials Designated Under the Protective Order, #9 Kim Declaration ISO Apple's Opposition to Samsung's Motion to Permit Samsung's Expert Itay Sherman to Review Design Materials Designated Under the Protective Order, #10 Ex. 1 to the Kim Declaration, #11 Ex. 2 to the Kim Declaration, #12 Ex. 3 to the Kim Declaration, #13 Ex. 4 to the Kim Declaration, #14 Ex. 5 to the Kim Declaration, #15 Ex. 6 to the Kim Declaration, #16 Ex. 7 to the Kim Declaration, #17 Ex. 8 to the Kim Declaration, #18 Ex. 9 to the Kim Declaration, #19 Proposed Order Denying Samsung's Motion to Permit Samsung's Expert Itay Sherman to Review Design Materials Designated Under the Protective Order)(Hung, Richard) (Filed on 12/15/2011)

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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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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.,

DECLARATION OF MIA MAZZA
IN SUPPORT OF APPLE’S
OPPOSITION TO SAMSUNG’S
MOTION TO COMPEL
PRODUCTION OF DOCUMENTS
AND THINGS

Defendants.

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PUBLIC REDACTED VERSION

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DECLARATION OF MIA MAZZA ISO APPLE’S OPPOSITION TO SAMSUNG’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 or understand them to be true

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from members of my litigation team. I make this declaration in support of Apple’s Opposition to

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Samsung’s Motion to Compel Production of Documents and Things.

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2.

Apple’s Motion for Preliminary Injunction was heard on October 13, 2011. Since

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the Preliminary Injunction hearing, Apple has produced approximately 12,239 documents totaling

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more than a million pages in its offensive case against Samsung. Apple has produced for

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inspection numerous CAD files, native and printed source code files, Director files on a computer

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capable of viewing them, and models and prototypes requested by Samsung in connection with

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inventor depositions. Samsung deposed 17 Apple patent prosecutors in the month of October

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2011 and 31 Apple inventors in the months of October and November 2011.

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3.

Since the Preliminary Injunction hearing, Samsung has produced about 650

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documents, totaling less than 29,000 pages. About 22,000 of those pages were produced in the

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past week. On November 22 and 23, 2011, Apple noticed nine depositions of Samsung

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witnesses. On December 6, 2011, Apple noticed an additional 28 depositions of Samsung

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witnesses. To date, Samsung has provided only one date for one of these depositions, despite

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Apple’s having requested dates in various letters, emails, and meet-and-confer calls. Samsung

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provided that date on the evening of December 14, 2011.

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4.

Other than the Apple v. Motorola documents related to Samsung’s claim

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construction briefing, Samsung has not requested that Apple substantially complete its production

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of the documents and things that are the subject of Samsung’s motion to compel by any date

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certain. During the parties’ December 7, 2011, meet-and-confer call, Samsung specifically

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declined to set any deadlines for substantial completion, instead stating that Samsung wanted to

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know that Apple was working diligently to search for and produce the requested information.

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Even Samsung’s December 10, 2011, letter to Apple listing thirteen items Samsung believed were

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“ripe for lead-counsel meet-and-confer” did not include any request that Apple substantially

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complete its production of the listed items by any particular point in time.

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5.

Apple produced documents from the Apple v. Motorola cases as requested by

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Samsung, on November 23, 2011 in the ITC 796 action, and again on December 1, 2011 in the

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N.D. Cal. action. The production was approximately 990 documents numbering approximately

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45,000 pages. Shortly after the production was made, Samsung identified a document that

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appeared to have redactions of Apple confidential information rather than third party confidential

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information. Apple immediately located a properly redacted copy and produced it on December

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8, 2011.

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On December 11, 2011, Samsung identified four items it believed may have been

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missing from the Apple v. Motorola production. First, Samsung requested the witness statement,

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testimony, and cross-examination of John Elias. Upon investigation, I was informed by counsel

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for Apple in the Motorola cases that

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Jeffrey Brown. Upon investigation, I was informed by outside counsel for Apple in the Motorola

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Motorola cases that these materials contain significant third-party confidential business

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brief.” Upon investigation, I received a copy of this brief from counsel for Apple in the Motorola

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7.

On December 8, 2011, Apple produced ALPNDC-X0000006115 through

APLNDC-X0000006144, which were the documents attached as Exhibit 8 to the Declaration of
Erik J. Olson in Support of Apple’s Opposition to Samsung’s Motion to Compel, dated
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October 31, 2011. These documents were not marked with any confidentiality designation when

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produced.

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During the parties’ December 7, 2011, meet-and-confer call, Apple informed

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Samsung that it would be producing source code for the Mac OS 10.0 operating system, an Apple

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computer capable of running it, and source code for the SuperClock system, on or about

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December 15, 2011.

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On or about December 15, 2011, Apple will produce at Morrison & Foerster’s Palo

Alto office the following items for Samsung’s inspection:

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An Apple computer specially configured and adapted to run the 10 year old Mac

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OS 10.0 operating system.

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Portions of the Mac Operating System 10.0 and 10.1 operating system source code

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believed to relate to the functions described in Samsung’s motion.

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Portions of the Mac Operating System 7.5—more than 15 years old—believed to

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correspond to the

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10. Apple’s attorneys have been diligently meeting and following up with the Industrial
Design team about the design discovery items Samsung’s seeks.

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11. During the parties’ December 7, 2011, meet-and-confer call, Apple advised Samsung
that

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14. Apple has agreed and already explained to Samsung that it will produce the CAD files
showing the final design of the Apple Cinema Display.

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15. Many months ago, Apple produced to Samsung all CAD files relating to the original

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iPhone project. Pursuant to the Court’s order, Apple re-produced the CAD data to Samsung via

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an escrow facility at the end of September. The data contains a CAD drawing of

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Apple has no additional CAD files to produce relating to the original
iPhone, and Apple has already agreed to take additional steps

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16. Apple has agreed to conduct a reasonable search for

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17. Apple has already stipulated that the
Attached as Exhibits A & B
hereto are true and correct copies of excerpts from the prosecution history of U.S. Patent No.
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D504,889.

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20. Apple has agreed to supplement its responses to Interrogatory No. 1.

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21. Apple has agreed to produce final CAD files for each item of purported prior art

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sought by Samsung in its motion.

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Apple will produce documents sufficient to show what it looked like. The parties have not

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specifically discussed any additional items that Samsung believes it has good reason to request of

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Apple regarding that alleged prior art. Samsung clarified in meet-and-confer communications

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that it is only seeking information regarding the external appearance of these displays.

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if CAD is no longer available

22. In a letter dated November 8, 2011, Samsung asked Apple to produce “all documents

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related to Apple Cinema Display, including but not limited to notebooks, diagrams, progress

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reports, studies, internal memoranda, contracts for services, and communications created or used

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in connection with the design of Apple Cinema Display, as well as any related models or

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prototypes.” Apple responded on November 10, 2011, asserting its disagreement that the Apple

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Cinema Display monitor is prior art, and stating further that Samsung’s “request for ‘all

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documents related to’ the monitor is overbroad and unduly burdensome given the alleged

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relevance of the device.”

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23. Apple will add

to its search term list applied to all Industrial Design

inventors and produce any relevant information located in that search.
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24. Apple has already:

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25. Samsung deposed

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26. On November 8, 2011, Apple received a letter from Samsung stating that it had

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27. During the December 7, 2011 meet-and-confer call, Apple advised Samsung that

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Apple will add

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inventors and produce any relevant, responsive documents located as a result of that search.

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Apple will also search for the term

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that no additional models are located elsewhere.

to its list of search terms applied to the documents of all Industrial Design

in Apple’s physical model archive database to confirm

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28. In a November 8, 2011 letter, Samsung asserted,

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requested that Apple produce

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Apple responded on November 10, stating that although it is “plain that Apple’s asserted

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29. Apple will add the terms

to Apple’s list of search terms applied to

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Industrial Design inventor documents, and produce all relevant, responsive documents located as

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a result of that search. Apple will also run the terms

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archive database to confirm that no additional models are located elsewhere.

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in its physical model

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31. Under the terms of the production of the models, which Samsung accepted,

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Samsung’s representatives were permitted to take photographs of the models, but the memory

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cards containing the photos were to be provided to Apple counsel. Apple subsequently produced

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high quality copies of these photographs to Samsung, with proper confidentiality designations and

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Bates numbers in the file format agreed by the parties.

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32.

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33. Apple has already produced excerpts of sketchbooks of designers involved in the
original iPhone and tablet projects that are the subject of the asserted hardware design patents.
34. Apple has not refused to produce deposition transcripts that are relevant to this case.

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For the inventors of the patents in suit, it has already produced prior testimony that bears a

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technological nexus to the patents at issue in this case. It is willing to produce similar transcripts

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for other deponents. Apple is involved in consumer class actions, employment cases, antitrust,

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and even personal-injury cases. Even for patent disputes, the patents at issue are often unrelated

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to the patents here. Apple’s dispute with Kodak, for example, involves digital imaging patents.

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35. Samsung has asserted during the parties’ meet and confer sessions that it is entitled to

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prior deposition transcripts in a broad range of case types due to the potential impeachment value

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of those transcripts.

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I declare under penalty of perjury that the foregoing is true and correct.
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Executed this 15th day of December, 2011 at San Francisco, California.
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/s/ Mia Mazza
Mia Mazza

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ATTESTATION OF E-FILED SIGNATURE
I, Richard S.J. Hung, 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 15, 2011

/s/ Richard S.J. Hung
Richard S.J. Hung

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