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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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 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 11 12 Attorneys for Plaintiff and Counterclaim-Defendant APPLE INC. 13 14 UNITED STATES DISTRICT COURT 15 NORTHERN DISTRICT OF CALIFORNIA 16 SAN JOSE DIVISION 17 APPLE INC., Case No. 11-cv-01846-LHK 18 Plaintiff, 19 v. 20 21 22 23 24 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 ESTHER KIM IN SUPPORT OF APPLE’S OPPOSITION TO SAMSUNG’S MOTION TO PERMIT SAMSUNG’S EXPERT ITAY SHERMAN TO REVIEW DESIGN MATERIALS DESIGNATED UNDER THE PROTECTIVE ORDER Defendants. 25 26 PUBLIC VERSION EXHIBITS 3, 4, 5, AND 6 FILED UNDER SEAL 27 28 DECLARATION OF ESTHER KIM ISO APPLE’S OPPOSITION TO SAMSUNG’S MOTION RE ITAY SHERMAN 11-CV-01846-LHK sf-3083360 1 I, Esther Kim, declare as follows: 2 1. I am an attorney with the law firm of Morrison & Foerster LLP, counsel for 3 Apple Inc. (“Apple”). I am licensed to practice law in the State of California. Unless otherwise 4 indicated, I have personal knowledge of the matters stated herein and, if called as a witness, could 5 and would testify competently thereto. I make this declaration in support of Apple’s Opposition 6 to Samsung’s Motion to Permit Samsung’s Expert Itay Sherman to Review Design Materials 7 Designated Under the Protective Order. 8 9 10 11 2. Attached hereto as Exhibit 1 is a true and correct copy of the “About us” page from the Double Touch website, having the universal resource locator (“URL”): http://dotwo-tech.com/index.html. 3. Attached hereto as Exhibit 2 is a true and correct copy of the published patent 12 application having U.S. Publication Number 2011-0193819 A1 and a publication date of 13 August 11, 2011. This publication is titled “Implementation of Multi-Touch Gestures Using a 14 Resistive Touch Display” and lists Itay Sherman as the first named inventor. 15 16 17 4. Attached hereto as Exhibit 3 is a true and correct copy of excerpts of the deposition transcript from the deposition of Itay Sherman on September 15, 2011. 5. Attached hereto as Exhibit 4 is a true and correct copy of a September 6, 2011, 18 letter from Samsung’s counsel to Apple’s counsel, disclosing Itay Sherman as an expert. The 19 letter requests that Apple inform Samsung by September 9 “whether Apple objects, and the 20 grounds for such objection, to the disclosure to Itay Sherman of information produced in this 21 litigation by Apple” and designated by Apple as “Confidential” or “Highly Confidential – 22 Attorneys’ Eyes Only” under the Interim Model Protective Order. 23 6. Attached hereto as Exhibit 5 is a true and correct copy of an e-mail chain 24 containing four e-mails between Samsung’s counsel and Apple’s counsel from 25 September 6, 7, and 19, 2011, discussing the disclosure of Apple confidential information to 26 Mr. Sherman. 27 28 7. Attached hereto as Exhibit 6 is a true and correct copy of an October 25, 2011, letter from Samsung’s counsel to Apple’s counsel, documenting Apple’s objection to DECLARATION OF ESTHER KIM ISO APPLE’S OPPOSITION TO SAMSUNG’S MOTION RE ITAY SHERMAN 11-CV-01846-LHK sf-3083360 1 1 Mr. Sherman being shown any confidential documents unless Samsung first provides a list of 2 Bates numbers so that Apple can review them and object” and Samsung’s refusal to do so. 3 8. Attached hereto as Exhibit 7 is a true and correct copy of Samsung’s First Set of 4 Requests for Production to Apple, Inc., dated August 3, 2011. Request No. 139 states: “All 5 DOCUMENTS relating to the functionality—including the ease of manufacturing, costs savings, 6 enhanced usability, or any other benefit—of any claimed feature, element, or combination of 7 elements in any of the APPLE DESIGN PATENTS, APPLE TRADE DRESS, AND APPLE 8 TRADEMARKS.” 9 10 11 9. Attached hereto as Exhibit 8 is a true and correct copy of the “Technology” page from the Double Touch website, having the URL: http://dotwo-tech.com/index.html. 10. Attached hereto as Exhibit 9 is a true and correct copy of a Technology Review 12 article published by M.I.T. and dated Thursday, February 14, 2003. This article is titled 13 “Rethinking the Cell Phone” and indicates that Modu intended to compete with Apple’s iPhone. 14 The article can be found at the URL: 15 http://www.technologyreview.com/printer_friendly_article.aspx?id=20276. 16 17 18 19 20 I declare under penalty of perjury that the foregoing is true and correct. Executed this 15th day of December, 2011 at San Francisco, California. /s/ Esther Kim Esther Kim 21 22 23 24 25 26 27 28 DECLARATION OF ESTHER KIM ISO APPLE’S OPPOSITION TO SAMSUNG’S MOTION RE ITAY SHERMAN 11-CV-01846-LHK sf-3083360 2 1 2 ATTESTATION OF E-FILED SIGNATURE I, Richard S.J. Hung, am the ECF User whose ID and password are being used to file this 3 Declaration. In compliance with General Order 45, X.B., I hereby attest that Esther Kim has 4 concurred in this filing. 5 Dated: December 15, 2011 /s/ Richard S.J. Hung Richard S.J. Hung 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF ESTHER KIM ISO APPLE’S OPPOSITION TO SAMSUNG’S MOTION RE ITAY SHERMAN 11-CV-01846-LHK sf-3083360 3

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