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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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]

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.,

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Case No.
Plaintiff,

v.
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.,

11-cv-01846-LHK (PSG)

DECLARATION OF JASON R.
BARTLETT IN SUPPORT OF
APPLE’S OPPOSITION TO
SAMSUNG’S ADMINISTRATIVE
MOTION TO EXTEND TIME FOR
COMPLIANCE WITH ORDER ON
MOTION TO COMPEL

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Defendants.
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DECLARATION OF JASON R. BARTLETT ISO APPLE’S OPPOSITION TO SAMSUNG’S MOTION TO EXTEND TIME
CASE NO. 11-CV-01846 LHK (PSG)
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I, JASON R. BARTLETT, declare as follows:

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1.

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. I have personal

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knowledge of the matters stated herein or understand them to be true from members of my

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litigation team. I make this declaration in support of Apple’s Opposition to Samsung’s Motion to

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Extend Time for Compliance with Certain Deadlines Set by the Court’s December 22, 2011

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Order.

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2.

On September 20, 2011, Apple moved to compel production of “[a]ll documents

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relating to any customer surveys, studies, analyses or investigations regarding the Products at

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Issue.” ((Apple’s Mot. to Compel Samsung to Produce Documents and Provide Responsive

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Answers to Propounded Discovery, filed under seal September 20, at 3) (quoting Apple’s Request

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for Production No. 206).) Apple also moved to compel production of documents relating to the

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development and design of the Samsung products at issue, explaining that Samsung had failed to

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produce any true design history documents. (Id. at 1, 8.)

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3.

In its opposition, filed September 26, Samsung wrote: “Apple’s motion seeks to

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compel production of (1) development and design documents referencing Apple, (2) documents

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pertaining to certain alleged statements of Lee Don Joo, (3) marketing documents, (4) customer

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survey documents, and (5) customer confusion documents referencing Apple. Samsung already

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has produced the responsive documents it has located to date regarding categories one through

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four, and has properly objected to producing documents in response to category five on relevance

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and undue burden grounds, among others. Apple‘s motion to compel thus is largely moot, and the

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only live controversy — regarding consumer confusion documents — should be decided in

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Samsung‘s favor.” (Samsung’s Opp. to Apple’s Mot. to Compel [Dkt. 258] at 5.)

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4.

At the hearing on Apple’s September 20 Motion to Compel, Samsung made the

following representations to the Court:

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“There’s a body of design documents. We produced a huge number of them.” (Sept.

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28, 2011 Tr. at 66:8-9.)

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DECLARATION OF JASON R. BARTLETT ISO APPLE’S OPPOSITION TO SAMSUNG’S MOTION TO EXTEND TIME
CASE NO. 11-CV-01846 LHK (PSG)
sf-3088921

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“The other categories of documents are broadly marketing and consumer surveys.

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And again, with respect to these categories, we have searched the relevant files and

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produced an enormous number of documents ranging from market share to marketing

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presentations to competitive analysis, who is our competition, what you should be

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targeting, marketing surveys as well.” (Id. at 66:16-23.)

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“So consumer surveys was a contested topic, we thought it was not relevant in this

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instance, we thought rather than fight it just produce it so we did. We are surprised to

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see that in the motion to compel.” (Id. at 67:2-6.)

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A true and correct copy of the relevant transcript pages quoted above is attached as
Exhibit A.

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5.

On September 28, 2011, the Court ordered Samsung to produce “[f]rom any

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central files or the custodial files of any individuals with specific responsibility for surveying

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customers of Samsung’s Galaxy S 4G and Infuse 4G, Droid Charge phones and Galaxy Tab 10.1

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table[t] computer, all survey documents that reference the Apple products currently alleged by

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Apple to embody one or more [of] the ornamental or utility features claimed in the patents” by

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October 7. (Order Granting in Part and Denying in Part Apple’s Motion to Compel [Dkt. 267.] at

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4.)

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6.

Apple sent letters to Samsung on October 8, October 10, October 19, November 1,

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and November 4 raising apparent deficiencies in Samsung’s production of survey and design

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documents in response to the Court’s September 28 order. Copies of these letters are attached as

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Exhibit B.

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7.

Samsung responded to Apple via letter on November 8, stating: “Samsung

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disagrees with Apple's o overly broad reading of the Order . . . . Nevertheless, during our call we

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agreed to take Apple's request back to Samsung in hopes of resolving the issue. We have done so,

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and Samsung has agreed to consider supplementing its production based upon Apple's broader

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request. We will get back to you shortly.” A true and correct copy of this letter is attached as

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Exhibit C.

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DECLARATION OF JASON R. BARTLETT ISO APPLE’S OPPOSITION TO SAMSUNG’S MOTION TO EXTEND TIME
CASE NO. 11-CV-01846 LHK (PSG)
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Apple followed up with Samsung regarding Samsung’s production of survey

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documents via letter on November 16. Samsung replied on November 20 confirming its

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“previous agreement to supplement its production of consumer survey documents” and adding

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that it would consider Apple’s specific requests. A true and correct copy of these letters is

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attached as Exhibit D.

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9.

Apple sent a letter to Samsung on November 20 summarizing Samsung’s recent

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position on production of survey documents and stating, “Apple expects that Samsung’s

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production of these survey documents will be complete no later than the end of November.” A

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true and correct copy of this letter is attached as Exhibit E.

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10.

Samsung sent a letter to Apple on December 3 stating that it would “use its best

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efforts to complete substantial production” of survey-related documents and an electronic search

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of data collected from “designers and engineers who worked on the products at issue, employees

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responsible for marketing those products, and employees responsible for developing the

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infringing features” by December 15, 2011. A true and correct copy of this letter is attached as

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Exhibit F.

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On December 8, Apple filed a motion to compel again addressing, among other

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categories, design history documents and relevant survey and marketing documents. (Apple’s

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Mot. to Compel Production of Documents and Things [Dkt. 467-1] at i-ii). In its Opposition,

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Samsung stated: “Again, on at least December 3, 4, and 8, Samsung agreed to produce relevant

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survey documents responsive to a search for ‘Apple’ and related terms . . . . Moreover, Samsung

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committed to substantially completing that production by December 31, 2011, and is making

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every effort to meet that deadline, despite the significant technological and logistical hurdles this

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sweeping demand presents.” (Samsung’s Opp. to Apple’s Mot. to Compel, filed under seal Dec.

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14, 2011, at 8.) Samsung’s Opposition repeatedly reiterated, including in its headings, that it had

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already “committed to make its best efforts to substantially complete” production of survey

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documents and design history documents by December 31, 2011, and January 6, 2012,

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respectively. (Dkt. 467 at i, 1.)

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DECLARATION OF JASON R. BARTLETT ISO APPLE’S OPPOSITION TO SAMSUNG’S MOTION TO EXTEND TIME
CASE NO. 11-CV-01846 LHK (PSG)
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12.

On December 22, the Court ordered Samsung to complete its production of

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specified design history documents and of survey materials that should have been produced in

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response to the September 28 Order by December 31, 2011. (Order Granting-in-Part Plaintiff’s

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Mot. to Compel [Dkt. 537] at 3.)

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13.

In its present Motion to Extend, Samsung refers to its production as needing to

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take place in “nine days.” (Samsung’s Mot. to Extend Time for Compliance with Certain

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Deadlines Set by the Court’s Dec. 22, 2011 Order [Dkt. 554-0] at 1.) Samsung states that it “has

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worked diligently – and literally around the clock – to expedite the collection and production of

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documents requested by Apple and ordered produced by this Court.” (Id. at 2.) Samsung’s

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attorneys also represented to Apple on December 28 that they could not meet and confer because

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they were busy complying with the Court’s Order. However, the week of this filing alone, four

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different Samsung attorneys have sent seven single-spaced, multi-page letters to Apple on

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discovery-related topics of concern to Samsung.

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Samsung states in its Motion that it “intends to produce these documents on a

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rolling basis[.]” (Id.) However, in the eight days that have passed since the Court entered its

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order on December 22, 2011, Samsung has produced a total of 84 documents, all relating to a

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single potential deponent that was since taken off calendar—Jaegwan Shin. None of these 84

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documents were survey documents.

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15.

Samsung states in its Motion that Apple “inexplicably” and “without explanation”

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refused to stipulate to the extension sought by Samsung. (Id. at 4.) Samsung sought Apple’s

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stipulation via e-mail the morning of December 29. Apple sent an e-mail to Samsung at 1:43pm

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on December 29 stating that it would oppose Samsung’s request and follow up shortly with a

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letter. Apple sent that explanatory letter at 4:37pm, a true and correct copy of which is attached

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as Exhibit G. Twenty minutes later, Samsung filed its Motion with the above statements

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claiming that Apple had provided no explanation for its rejection of the requested stipulation.

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16.

To comply with the Court’s December 22 Order, Apple employed more than 25

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individuals including outside counsel and paralegals, a team of scan machine operators, in-house

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legal staff (who worked through a company-wide holiday shut-down and vacation), and outside eDECLARATION OF JASON R. BARTLETT ISO APPLE’S OPPOSITION TO SAMSUNG’S MOTION TO EXTEND TIME
CASE NO. 11-CV-01846 LHK (PSG)
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discovery specialists. Work proceeded full time, including overtime and weekends to comply

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with the Order.

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I declare under penalty of perjury that the foregoing is true and correct. Executed this 30th
day of December, 2011 at San Francisco, California.

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/s/ Jason R. Bartlett
Jason R. Bartlett

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DECLARATION OF JASON R. BARTLETT ISO APPLE’S OPPOSITION TO SAMSUNG’S MOTION TO EXTEND TIME
CASE NO. 11-CV-01846 LHK (PSG)
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ATTESTATION OF E-FILED SIGNATURE

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I, Michael A. Jacobs, 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 Jason R. Bartlett has

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concurred in this filing.

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Dated: December 30, 2011

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/s/ Michael A. Jacobs
Michael A. Jacobs