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

Filing 565

OPPOSITION to ( 554 MOTION for Extension of Time For Compliance With Certain Deadlines Set By The Court's Order (Dkt No. 537) ) filed byApple Inc.. (Attachments: # 1 Declaration, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Proposed Order)(Jacobs, Michael) (Filed on 12/30/2011) Modified text on 1/4/2012 (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, Plaintiff, 19 20 21 22 23 24 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 TO EXTEND TIME FOR COMPLIANCE WITH ORDER ON MOTION TO COMPEL Judge: Paul S. Grewal Defendants. 25 26 27 28 APPLE’S OPPOSITION TO SAMSUNG’S ADMINISTRATIVE MOTION TO EXTEND TIME FOR COMPLIANCE CASE NO. 11-CV-01846-LHK (PSG) sf-3088833 1 2 INTRODUCTION Over the past four months, Samsung has repeatedly promised that it has completed or will 3 soon complete its production of survey and design history documents. But only now, after this 4 Court compelled it to make good on these promises, has Samsung finally marshaled the resources 5 to get the job done. Granting Samsung’s request for a further extension, after months of promises 6 and non-production, would reward Samsung’s misrepresentations and delays. 7 Samsung’s requested relief should therefore be denied. Samsung should be obligated to 8 produce documents as required by the Court’s December 22, 2011 Order. To the extent that 9 Samsung does not or cannot comply with that Order, the Court can determine the appropriate 10 remedy after Samsung’s production is complete and the prejudicial impact of its delays is known. 11 ARGUMENT 12 As Apple explained to Samsung shortly before Samsung filed its motion, Samsung cannot 13 justify further delaying production of its survey and design history documents.1 Months ago, 14 Samsung promised that it would produce these documents promptly. Months ago, the Court 15 ordered Samsung to make these productions. Any delay in Samsung’s production is inexcusable. 16 I. 17 Apple’s First Motion to Compel. Apple has moved to compel Samsung’s production of Samsung Should Have Produced Survey and Marketing Documents Long Ago. 18 survey and marketing documents not once, but twice. Apple first moved to compel their 19 production back in September. (Bartlett Decl. ¶ 2.) In opposing Apple’s motion, Samsung 20 represented that it “already [had] produced the responsive documents it has located to date” 21 relating to surveys and marketing documents and that Apple’s motion to compel was “largely 22 moot.” (Samsung’s Opp. to Apple’s Mot. to Compel [Dkt. 258] at 5 (emphasis added).) At the 23 September 28, 2011 hearing, Samsung’s counsel reinforced this representation, stating: 24 25 1 26 27 28 Samsung ’s allegation that Apple refused to stipulate to its requested extension “inexplicably” is false. (Samsung’s Mot. to Extend Time for Compliance with Certain Deadlines Set by the Court’s Dec. 22, 2011 Order [Dkt. 554-0] (“Mot.”) at 4.) Apple wrote Samsung to explain its opposition before Samsung filed its motion. (Bartlett Decl. ISO Apple’s Opp’n to Mot. (“Bartlett Decl.”) Ex. G.) APPLE’S OPPOSITION TO SAMSUNG’S ADMINISTRATIVE MOTION TO EXTEND TIME FOR COMPLIANCE CASE NO. 11-CV-01846-LHK (PSG) sf-3088833 1 1 2 [C]onsumer surveys was a contested topic, we thought it was not relevant in this instance, we thought rather than fight it just produce it so we did. We are surprised to see that in the motion to compel. 3 (Bartlett Decl. Ex. A at 66:16-23, 67:2-6 (emphasis added).) The Court granted Apple’s motion 4 that same day and ordered Samsung to make this production by October 7th. 5 Samsung’s Repeated Promises. Samsung did not complete its survey production as 6 ordered. Apple therefore pressed Samsung, in discovery correspondence and in telephonic meet- 7 and-confers, to complete this production. (Id. ¶ 6, Ex. B.) Apple noted that Samsung’s non- 8 production violated the Court’s September 28th Order. Samsung promised that it was already 9 addressing Apple’s concern: 10 12 Samsung disagrees with Apple's overly broad reading of the Order . . . . Nevertheless, during our call we agreed to take Apple's request back to Samsung in hopes of resolving the issue. We have done so, and Samsung has agreed to consider supplementing its production based upon Apple's broader request. We will get back to you shortly. 13 (Id. Ex. C.) When Samsung still did not make this production, Apple continued to press Samsung. 14 (Id. ¶¶ 8-9, Exs. D-E.) Samsung promised on December 3rd to “use its best efforts to complete 15 substantial production of [survey] documents before December 15, 2011.” (Id. ¶ 10, Ex. F.) 11 16 Apple’s Second Motion to Compel. When Samsung again did not produce the documents 17 as promised and ordered, Apple filed another motion to compel. (Bartlett Decl. ¶ 11.) In 18 opposing Apple’s subsequent motion, Samsung underscored its multiple promises to produce its 19 survey documents, and it again promised to make this production promptly, claiming that it was 20 making “every effort” to do so: 21 22 23 24 25 26 27 Again, on at least December 3, 4 and 8, Samsung agreed to produce relevant survey documents . . . . Moreover, Samsung committed to substantially completing that production by December 31, 2011, and is making every effort to meet that deadline . . . . (Opp. to Apple’s Mot. to Compel (“MTC Opp.”), filed Dec. 14, 2011, at 8.) Samsung’s Concessions of Delay. Only now, after all these promises and two Court orders, has Samsung finally undertaken the task of collecting these documents. Samsung’s declarant admits as much, explaining Samsung’s efforts to produce these documents now for the first time. (See Kang Decl. ISO Mot. to Extend Time for Compliance with Certain Deadlines Set 28 APPLE’S OPPOSITION TO SAMSUNG’S ADMINISTRATIVE MOTION TO EXTEND TIME FOR COMPLIANCE CASE NO. 11-CV-01846-LHK (PSG) sf-3088833 2 1 by the Court’s Dec. 22, 2011 Order [Dkt. 554-1] (“Kang Decl.”) ¶ 4.) Mr. Kang emphasizes the 2 “massive volume of data that had to be collected pursuant to the Order,” explains the difficulties 3 in reviewing these documents over a “nine-day period,” and describes how Samsung hired e- 4 discovery help and attorneys, bothered custodians at home, and couriered data from Korea. (Id.) 5 After months of representations that a full production of consumer survey documents was 6 complete or around the corner, Apple is at a loss to understand how Samsung could still have a 7 “massive volume of data” to collect and review. Samsung has no excuse for not undertaking 8 these efforts sooner. The only survey documents that Samsung is required to produce by 9 December 31st are those already “subject to the September 28[th] Order and not yet produced.” 10 (Dkt. 537 at 3 (emphasis added).) Per the Court’s prior September 28th Order, these documents 11 should have been produced by October 7th. Not only is Samsung in violation of that prior order, 12 its violation is so massive that it requires another 10 days to complete this production – even after 13 (allegedly) working flat-out for 9 days. 14 II. 15 There also is no excuse for Samsung’s claimed need for further time to produce its design 16 history documents. As with the survey documents, the Court addressed Samsung’s production of 17 its design history documents at the September 28th hearing. Samsung’s counsel acknowledged 18 that “[t]here’s a body of design documents,” but claimed that Samsung had already “produced a 19 huge number of them.” (Bartlett Decl. ¶ 4, Ex. A at 66:8-9.) 20 Samsung Promised to Produce Design History Documents Long Ago. In response to Apple’s subsequent inquiries about the timing of Samsung’s complete 21 production of these documents, Samsung agreed to “substantially complete” this production by 22 December 15th. Samsung promised to “re-run” certain searches against the collections of 23 “designers and engineers who worked on the products at issue, employees responsible for 24 marketing those products, and employees responsible for developing the infringing features” by 25 that date. (Id. ¶ 10, Ex. F.) In opposing Apple’s motion to compel, Samsung repeated this 26 promise, noting that it “already has committed to make its best efforts to substantially complete 27 its production of the specified design history documents by January 6, 2012.” (MTC Opp. at i, 1.) 28 APPLE’S OPPOSITION TO SAMSUNG’S ADMINISTRATIVE MOTION TO EXTEND TIME FOR COMPLIANCE CASE NO. 11-CV-01846-LHK (PSG) sf-3088833 3 1 As with the survey documents, Samsung’s claims that it is finally collecting and 2 reviewing a “massive volume of data” now for production on January 9th belie its prior 3 representations. Despite claiming that it had collected these documents, just needed to “re-run” 4 searches, and could produce them sooner, Samsung now alleges that it requires additional time to 5 complete this production. Samsung’s failure to advance its production of these documents, after 6 previously representing that it would do so by dates certain, is its own fault. 7 III. 8 While Samsung claims that it has been “working around the clock” to comply with the Samsung’s Claims of Diligence Are Not Credible. 9 Court’s Order (Mot. at 2), these claims are not credible. This week alone—despite claiming that 10 no Samsung attorneys were available to confer on Apple’s discovery requests because they were 11 working to comply with the Court’s Order —four different Samsung attorneys sent seven single- 12 spaced, multi-page letters on discovery issues of concern to Samsung. (Bartlett Decl. ¶ 13.) 13 Samsung plainly has elected to place its own discovery priorities above the Court’s Orders. 14 Samsung’s latest production is the clearest evidence of its lack of diligence. In its Order, 15 the Court obligated to Samsung to make its production of its survey and design history documents 16 by “no later than December 31, 2011.” (Dkt. 537 at 3.) In its motion, Samsung itself 17 acknowledges its intent to “produce these documents on a rolling basis.” (Mot. at 2.) In the 8 18 days after the Court entered its Order, however, Samsung produced a grand total of 84 documents. 19 All of these documents relate to single potential deponent, Jaegwan Shin. (Bartlett Decl. ¶ 14.) 20 None of the deponent’s documents are survey documents. (Id.) Samsung now claims, on the 21 ninth day, to have produced “40,000 pages” from “at least ten custodians.” Apple has just begun 22 reviewing this production, but Samsung’s claim is notable for what it omits: who are the 23 custodians, what other custodians are being searched, when and how did Samsung actually search 24 for responsive documents, why were these documents not produced previously, and what remains. 25 Samsung’s lack of diligence in complying with the Court’s order is striking in comparison 26 with Apple’s own efforts. A team of over 25 individuals – including scanner operators, Apple in- 27 house attorneys and legal assistants, discovery technicians, and outside counsel—has worked 28 overtime and over weekends during the holiday season to comply with Apple’s obligations APPLE’S OPPOSITION TO SAMSUNG’S ADMINISTRATIVE MOTION TO EXTEND TIME FOR COMPLIANCE CASE NO. 11-CV-01846-LHK (PSG) sf-3088833 4 1 pursuant to the December 22nd order. (Bartlett Decl. ¶ 16.) The Apple employees did so despite 2 a company-wide shutdown and preexisting vacation plans. (Id.) Apple will meet the Court’s 3 deadline because of these extensive efforts and because it did not begin, but rather accelerated, its 4 efforts after the December 22 Order issued. Samsung has no excuse for not doing the same. 5 IV. 6 In light of Samsung’s intentional delays and violations of this Court’s orders, there is no Apple Will Be Prejudiced By Further Delays. 7 reason to grant Samsung’s requested extension. While an extension might be warranted for 8 unforeseeable circumstances (e.g., technical production difficulties), Samsung’s pattern of 9 promises, non-production, and delay is not such a circumstance. 10 Samsung’s delays have already prejudiced Apple. The March 8, 2012 fact discovery 11 deadline looms large, but Apple still lacks core documents important to its claims. The parties 12 also have scheduled a series of depositions beginning on January 11th, just two days after 13 Samsung’s proposed new production deadline. Samsung also has yet to offer days for 30 14 additional depositions. Unless Apple receives these documents (many of which will be in 15 Korean) now, it will be difficult to prepare for these depositions and conduct follow up discovery. 16 Besides denying Samsung’s requested relief, the Court should direct Samsung to disclose 17 immediately and in detail what it plans to produce in response to the Court’s Order. Samsung is 18 already required under the Court’s prior orders to disclose sources of data searched, search terms, 19 and other search parameters and limitations. Accelerating this disclosure will allow Apple to 20 assess the adequacy of Samsung’s upcoming production and determine whether additional relief 21 is required. In view of Samsung’s past and ongoing delays, neither Apple nor the Court should be 22 forced to wait until mid-January to determine the scope of Samsung’s compliance. 23 CONCLUSION 24 After months of promises and two Court orders, Samsung cannot delay its production of 25 survey and design history documents any longer. The Court should deny Samsung’s requested 26 extension and require that it produce the compelled documents immediately, as ordered by this 27 Court on September 28th and December 22nd. The Court also should order Samsung to disclose 28 the scope and parameters of its production immediately. APPLE’S OPPOSITION TO SAMSUNG’S ADMINISTRATIVE MOTION TO EXTEND TIME FOR COMPLIANCE CASE NO. 11-CV-01846-LHK (PSG) sf-3088833 5 1 Dated: December 30, 2011 MORRISON & FOERSTER LLP 2 3 4 By: /s/ Michael A. Jacobs Michael A. Jacobs Attorneys for Plaintiff APPLE INC. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 APPLE’S OPPOSITION TO SAMSUNG’S ADMINISTRATIVE MOTION TO EXTEND TIME FOR COMPLIANCE CASE NO. 11-CV-01846-LHK (PSG) sf-3088833 6

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