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

Filing 530

MOTION for Reconsideration re #510 Order on Administrative Motion to File Under Seal Motion for Leave to File Motion for Reconsideration filed by Samsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: #1 Declaration Declaration of Hankil Kang, #2 Proposed Order)(Maroulis, Victoria) (Filed on 12/21/2011)

1 QUINN EMANUEL URQUHART & SULLIVAN, LLP
Charles K. Verhoeven (Cal. Bar No. 170151)
 [e-mail]
50 California Street, 22nd Floor
 San Francisco, California 94111
Telephone: [phone]
 Facsimile: [phone]
 Kevin P.B. Johnson (Cal. Bar No. 177129)
[e-mail]
 Victoria F. Maroulis (Cal. Bar No. 202603)
[e-mail]
 555 Twin Dolphin Drive 5th Floor
Redwood Shores, California 94065
 Telephone: [phone]
Facsimile: [phone]

Michael T. Zeller (Cal. Bar No. 196417)
 [e-mail]
865 S. Figueroa St., 10th Floor
 Los Angeles, California 90017
Telephone: [phone]
 Facsimile: [phone]
 Attorneys for SAMSUNG ELECTRONICS
CO., LTD., SAMSUNG ELECTRONICS
 AMERICA, INC. and SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC



UNITED STATES DISTRICT COURT



NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION

 APPLE INC., a California corporation,

CASE NO. 11-cv-01846-LHK



SAMSUNG’S MOTION FOR LEAVE TO
FILE MOTION FOR
RECONSIDERATION



Plaintiff,
vs.

 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.






Case No. 11-cv-01846-LHK
SAMSUNG’S MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION

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NOTICE OF MOTION

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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

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PLEASE TAKE NOTICE THAT on December 21, 2011, Defendants Samsung

4 Electronics Co. Ltd., Samsung Electronics America, Inc., and Samsung Telecommunications
5 America, LLC (collectively, “Samsung”) will move for leave to file a motion for reconsideration
6 of this Court’s December 16, 2011 Order (“Order”) on Apple’s unopposed motion.

This motion

7 will be based on this Notice of Motion and Motion for Leave to File a Motion for Reconsideration
8 of Order Granting In Part and Denying In Part Apple’s Motion to Seal, the Memorandum of Points
9 and Authorities, the Declaration of Hankil Kang in Support of the Motion for Leave, the Proposed
10 Order, and the files and records in this matter and any oral argument that the Court may hear.
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MEMORANDUM OF POINTS AND AUTHORITIES
Pursuant to Civil Local Rule 7-9, Defendant Samsung respectfully requests this Court

14 grant Samsung leave to file a motion for reconsideration of the Court’s December 16, 2011 Order
15 (“Order”) to the extent it denied Apple’s motion to seal Exhibit E of the Declaration of Minn
16 Chung.

Samsung is entitled to leave to file a motion for reconsideration because it is unclear

17 from the Court’s Order granting in part and denying in part Apple’s Unopposed Administrative
18 Motion to File Apple’s Motion to Augment Record and Supporting Documents Under Seal (Dkt.
19 No. 298) whether the Court considered the fact that Exhibit E of the Declaration of Minn Chung
20 In Support of Apple’s Motion to Augment Record (“Exhibit E”) reveals Samsung’s design
21 evaluation strategy and the results of Samsung’s significant investment in consumer research.
22 While the Declaration of Rosa Kim (the “Kim Declaration”) generally discusses the contents of
23 Exhibit E, the Declaration of Hankil Kang (the “Kang Declaration”), submitted herewith, provides
24 additional details behind the creation and information of Exhibit E.

These Declarations provide

25 information demonstrating that Exhibit E is sealable pursuant to Local Rule 79-5 due to the
26 competitive harm that would be caused by its disclosure.

Because the Kim and Kang

27 Declarations satisfy the requirements of Local Rule 79-5, and because it is unclear from the
28 Court’s ruling on Apple’s motion whether it considered the aspects of Exhibit E that include
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1 Samsung’s consumer research strategy and the results of its consumer research, as well as legal
2 authority not presented in Apple’s motion that address the confidential nature of Samsung’s
3 information, leave to seek reconsideration of the Order is appropriate.
4
5

(See L.R. 7-9.)

BACKGROUND
On October 11, 2011, Plaintiff Apple Inc. (“Apple”) filed an Unopposed Administrative

6 Motion to File Apple’s Motion to Augment Record and Supporting Documents Under Seal (Dkt.
7 No. 298).

Samsung thereafter filed the Declaration of Rosa Kim in Support of Sealing Apple’s

8 Motion to Augment Record, the Declaration of Minn Chung and Exhibits A-E thereto (Dkt. No.
9 458). Samsung did not submit any briefing regarding Apple’s unopposed motion.

On

10 December 16, 2011, the Court granted Apple’s motion as to Exhibits A-D of the Chung
11 Declaration (Dkt. No. 510).

However, the Court denied Apple’s request to file Exhibit E under

12 seal, and for that reason also denied Apple’s request to file its Motion to Augment Record under
13 seal.
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15

ARGUMENT
Local Rule 79-5(a) permits a document to be filed under seal “where [the] document, or

16 portions thereof, is privileged or protectable as a trade secret or otherwise entitled to protection
17 under the law.” A document is “sealable” under Rule 79-5(a) if the designating party can
18 demonstrate that “disclosure would cause significant harm to its competitive and financial
19 position” through “specific demonstrations of fact.” SuccessFactors, Inc. v. Softscape, Inc., 2008
20 WL 3876472 at *1 (N.D. Cal. Aug. 19. 2008).
21

The Kim Declaration generally describes the confidential and proprietary nature of the

22 information at issue in Exhibit E and the type of competitive harm that would result from its
23 public disclosure.

(Kim Decl. ¶ 2.)

As further described in the Kang Declaration, Exhibit E

24 reveals the methodology Samsung uses in conducting qualitative consumer research in its efforts
25 to elicit and understand consumer perceptions and preferences and what competitive analyses
26 Samsung conducts in connection with its design and product evaluation processes.

(Kang Decl.

27 ¶¶ 2-5.) Although some images may have been shown to consumers in the course of the survey
28 research, the document is confidential because the significance of those images and the strategies
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1 behind the use and analysis of the consumers’ feedback regarding those images have not been
2 revealed to consumers.

Samsung has expended considerable sums to develop these techniques

3 and to keep them secret, and the confidential and commercially sensitive nature of this information
4 will be destroyed unless the Court reconsiders its decision not to permit the filing of Exhibit E
5 under seal.

(Id.) Samsung’s efforts in conducting this research will now accrue to the benefit of

6 Samsung’s competitors unless this document is filed under seal.
7

In addition to revealing Samsung’s consumer research methodology, Exhibit E discusses

8 the study’s key findings regarding design preferences relating to size, shape, color, and
9 configuration of smartphone keypads.

The study also contains confidential information from the

10 files of Samsung’s designers regarding the design of Samsung products, including depictions of
11 prototypes that have never been released in the market or disclosed to the public.

(Id.)

If

12 Exhibit E is not filed under seal, Samsung will lose the valuable opportunity to further develop
13 these designs and incorporate them into future products, and worse, these designs may be hijacked
14 by competitors.
15

Unsurprisingly, the Court’s Order does not address legal authority that Apple did not raise

16 in its motion, but that supports the sealing of Samsung’s confidential information.

E.g., Whyte v.

17 Schlage Lock Co., 101 Cal. App. 4th 1443, 1456 (2002) (“the results of confidential marketing
18 research; advertising and marketing strategy, plans, and techniques . . . constitute trade
19 secrets[.]”); SI Handling Sys., Inc. v. Heisley, 753 F.2d 1244, 1259 (3rd Cir. 1985) (“Where
20 market research explores the needs of numerous, diverse buyers, the resulting profile is
21 information that can only be obtained by others who undertake the same study.”); Compuware
22 Corp. v. IBM Corp., 2003 WL 23212863 at *7 (E.D. Mich. 2003) (“The aggregation and
23 distillation of the needs and desires of numerous customers is protectable” under the Uniform
24 Trade Secrets Act.)

In addition, the Kang Declaration provides additional factual details

25 regarding Exhibit E’s confidentiality, and demonstrates that Samsung does protect the information
26 revealed in Exhibit E as a trade secret.

The Kim and Kang Declarations contain material facts

27 which, if considered, tip the balance in favor of granting Apple’s motion to file Exhibit E under
28 seal.

(See Civ. L.R. 7-9(b)(3)). Because it is unclear whether and to what extent the Court
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1 considered the Kim Declaration and because the Court did not have the additional details provided
2 in the Kang Declaration and the legal authorities cited herein before issuing its Order, leave to file
3 a motion for reconsideration is appropriate.
4
5

CONCLUSION
For the foregoing reasons, Samsung respectfully requests that this Court grant Samsung

6 leave to file a motion to reconsider its Order denying Apple’s administrative motion to file Exhibit
7 E under seal.
8
9 DATED: December 21, 2011
10

QUINN EMANUEL URQUHART &
SULLIVAN, LLP

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By /s/ Victoria Maroulis
Charles K. Verhoeven
Kevin P.B. Johnson
Victoria F. Maroulis
Michael T. Zeller
Attorneys for SAMSUNG ELECTRONICS CO.,
LTD., SAMSUNG ELECTRONICS AMERICA,
INC., and SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC

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Case No. 11-cv-01846-LHK
SAMSUNG’S MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION

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