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).

Exhibit G

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December 29, 2011

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Via E-Mail ([e-mail])
Rachel Herrick Kassabian
Quinn Emanuel
555 Twin Dolphin Dr., 5th Floor
Redwood Shores, California 94065
Re:

Apple v. Samsung, Case No. 11-cv-1846-LHK (PSG) (N.D. Cal.)

Dear Rachel:
We have received your e-mail of this morning regarding Judge Grewal’s December 22, 2011,
Order.
That Order requires that Samsung produce specific categories of documents by
December 31, 2011. Samsung has asked that Apple stipulate to a nine-day extension, or until
January 9, 2012, for Samsung to complete its production of documents falling within two
identified categories — “relevant customer surveys” (item no. 4 in the Order) and “design
history e-mails” (item no. 2). This is double the number of days that Judge Grewal allowed
Samsung in the Order.
Apple cannot agree to Samsung’s request. There are several reasons for this:
First, as to “relevant customer surveys,” it is undisputed that these documents were
requested and should have been produced long ago. In his September 28, 2011, Order, Judge
Grewal compelled Samsung to produce documents within this category by October 7, 2011.
Convinced that Samsung had not fully complied with the Court’s Order and produced all
relevant survey documents (whether relating to the specific products at issue in the
preliminary injunction or all Samsung products at issue), Apple has continued to press
Samsung for these documents over the last two months. On December 3, 2011, Samsung
promised that it would “substantially complete” this production by December 15, 2011.
(December 3, 2011, Kassabian Letter to Mazza at 6-7.)
Skeptical of Samsung’s vague promises, and with no production forthcoming, Apple again
was forced to move to compel Samsung’s production of these documents on
December 9, 2011. Via his December 22nd Order, Judge Grewal again agreed that Apple
was entitled to these documents immediately.

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Rachel Herrick Kassabian
December 29, 2011
Page Two
It is important to note that Judge Grewal’s December 22nd Order requires Samsung to
produce, by December 31st, only “those [survey] materials that were subject to [his]
September 28[th] Order and not yet produced.” Samsung’s latest representation that it
cannot complete its review of these materials by December 31st therefore means that
Samsung has withheld documents in response to Apple’s requests and in violation of Judge
Grewal’s earlier order for several months. Indeed, the volume apparently is so enormous
that Samsung “believes,” based on its “current estimates,” that it requires another 10 days
still to review them.
Judge Grewal ordered Samsung’s “immediate[]” production of these materials for a
reason — they should have been produced long ago, during the preliminary injunction phase.
To date, however, Samsung has produced only a limited number of documents in response to
Judge Grewal’s latest Order. Apple cannot agree to Samsung’s willful violation of not one,
but two court orders.
Second, as to “design history e-mails,” it is equally undisputed that these documents were
requested and should have been produced long ago. As Apple detailed in its December 9th
motion to compel giving rise to Samsung’s required production, these documents are
responsive to multiple outstanding Apple discovery requests.
As with Samsung’s survey documents, Samsung previously represented that its production
would be “substantially complete” by December 15th. And as with Samsung’s survey
documents, Samsung’s representation that it cannot complete its review of its design history
documents by December 31st means that Samsung has withheld responsive documents for
several months. Finally, and again as with Samsung’s survey documents, the volume of
withheld materials apparently is so enormous that Samsung requires another ten days still to
review them.
Third, Samsung’s representations that it has been “working around the clock” and using its
“best efforts” to meet Judge Grewal’s latest order are not credible.
Just this week alone — and despite claiming that no Samsung attorneys were available to
meet and confer because they were attempting to comply with the Court’s order — four
different Samsung attorneys sent no fewer than six single-spaced, multi-page letters on
discovery-related topics. (See December 27, 2011, S. Hall Letter to J. Bartlett regarding
Apple discovery responses; December 27, 2011, K. Suh Letter to M. Mazza concerning
Apple’s NeXT production; December 27, 2011, D. Hutnyan Letter to M. Mazza regarding
meet and confer process; December 28, 2011, K. Suh Letter to M. Mazza concerning Apple’s
production of Nokia-related documents; December 28, 2011, K. Suh Letter to M. Mazza
concerning Apple’s production of Tiger operating system; December 29, 2011, M. Ducca
Letter to M. Mazza regarding Apple’s production of a computer with Mac OS X).

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Rachel Herrick Kassabian
December 29, 2011
Page Three
Samsung’s lack of diligence in complying with Judge Grewal’s latest discovery order is
striking in comparison with Apple’s own efforts to comply with that same order. Since
Judge Grewal issued his December 22nd Order, a team of over 25 individuals, including
scanner operators, Apple in-house attorneys and legal assistants, discovery technicians, and
outside counsel have worked overtime and over weekends to comply with that order. As for
the Apple employees assisting these efforts, they did so despite a company-wide shutdown
and pre-existing vacation plans.
Fourth, and most importantly, Apple is highly prejudiced by Samsung’s continued delayed
production. The March 8, 2012 fact discovery cutoff is looming. “Design history e-mails”
and “survey documents” are core documents that Apple needs to prepare for the upcoming
depositions.
Although Samsung alleges that its delayed production “will not impact any of the currently
scheduled depositions, as Samsung is prioritizing the document collection and production for
those custodians,” the currently scheduled depositions start on January 11th — just two days
after its proposed January 9th deadline. Samsung also ignores completely the 30 noticed
depositions of other Samsung witnesses — witnesses for whom Samsung has yet to offer
dates, and whom Apple has insisted on deposing in January and early February in light of the
March 8th fact discovery close.
****
In closing, Samsung must start producing the ordered documents on a rolling basis
immediately. Judge Grewal ordered such rolling production, but few if any documents have
been forthcoming.
Apple might be willing to entertain reasonable stipulations concerning Judge Grewal’s
discovery orders based on unforeseeable circumstances (e.g., production delays due to
technical difficulties, as occurred with Samsung’s preliminary injunction phase production).
But Samsung’s intentional delay in gathering and producing documents in response to longoutstanding requests — and in spite of Judge Grewal’s prior orders — do not warrant further
delays.
Sincerely,
/s/ Mia Mazza
Mia Mazza
cc:

Samuel Maselli; Calvin Walden; Peter Kolovos

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