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

Filing 57

Declaration of Todd M. Briggs in Support of #56 MOTION to Compel Apple to Produce Reciprocal Expedited Discovery filed bySamsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: #1 Exhibit 1, #2 Exhibit 2, #3 Exhibit 3, #4 Exhibit 4, #5 Exhibit 5, #6 Exhibit 6, #7 Exhibit 7, #8 Exhibit 8, #9 Exhibit 9, #10 Exhibit 10, #11 Exhibit 11, #12 Exhibit 12, #13 Exhibit 13, #14 Exhibit 14, #15 Exhibit 15, #16 Exhibit 16, #17 Exhibit 17, #18 Exhibit 18, #19 Exhibit 19, #20 Exhibit 20, #21 Exhibit 21, #22 Exhibit 22, #23 Exhibit 23, #24 Exhibit 24, #25 Exhibit 25, #26 Exhibit 26, #27 Exhibit 27, #28 Exhibit 28)(Related document(s) #56 ) (Maroulis, Victoria) (Filed on 5/27/2011)

1 QUINN EMANUEL URQUHART & SULLIVAN, LLP
Charles K. Verhoeven (Cal. Bar No. 170151)
2 [e-mail]
50 California Street, 22nd Floor
3 San Francisco, California 94111
Telephone: [phone]
4 Facsimile: [phone]
5 Kevin P.B. Johnson (Cal. Bar No. 177129)
[e-mail]
6 Victoria F. Maroulis (Cal. Bar No. 202603)
[e-mail]
th
7 555 Twin Dolphin Drive 5 Floor
Redwood Shores, California 94065
8 Telephone: [phone]
Facsimile: [phone]
9
Michael T. Zeller (Cal. Bar No. 196417)
10 [e-mail]
865 S. Figueroa St., 10th Floor
11 Los Angeles, California 90017
Telephone: [phone]
12 Facsimile: [phone]
13 Attorneys for SAMSUNG ELECTRONICS
CO., LTD., SAMSUNG ELECTRONICS
14 AMERICA, INC. and SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC
15
16

UNITED STATES DISTRICT COURT

17

NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION

18 APPLE INC., a California corporation,
19
20

CASE NO. 11-cv-01846-LHK

Plaintiff,
vs.

21 SAMSUNG ELECTRONICS CO., LTD., a
Korean business entity; SAMSUNG
22 ELECTRONICS AMERICA, INC., a New
York corporation; SAMSUNG
23 TELECOMMUNICATIONS AMERICA,
LLC, a Delaware limited liability company,
24
Defendants.
25

DECLARATION OF TODD M. BRIGGS
IN SUPPORT OF SAMSUNG’S MOTION
TO COMPEL APPLE TO PRODUCE
RECIPROCAL EXPEDITED
DISCOVERY AND UNOPPOSED CIVIL
L.R. 6-3 MOTION TO SHORTEN TIME

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Case No. 11-cv-01846-LHK
DECLARATION OF TODD M. BRIGGS

1

I, Todd M. Briggs, declare:

2

1.

I am a partner in the law firm of Quinn Emanuel Urquhart & Sullivan, LLP,

3 counsel for Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., and Samsung
4 Telecommunications America, LLC (collectively "Samsung").

I have personal knowledge of the

5 facts set forth in this declaration and, if called upon as a witness, I could and would testify to such
6 facts under oath.
7 Exhibits
8

2.

Attached hereto as Exhibit 1 is a true and correct copy of a report entitled "Today

9 in Tech: Why the iPad 3 is one to watch, Verizon killing unlimited data."

This copy of this

10 report was printed on May 25, 2011 from the website of CNN Money at the following website
11 address: http://tech.fortune.cnn.com/2011/03/02/today-in-tech-why-the-ipad-3-yes-3-is-the-one-to12 watch/.
13

3.

Attached hereto as Exhibit 2 is a true and correct copy of a report entitled "Apple:

14 Analyst Says No LTE in iPhone 5; To Add Sprint, T-Mobile."

This copy of this report was

15 printed on May 25, 2011 from the website of Forbes at the following website address:
16 http://blogs.forbes.com/ericsavitz/2011/05/13/apple-analyst-says-no-lte-in-iphone-5-to-add-sprint17 t-mobile/.
18

4.

Attached hereto as Exhibit 3 is a true and correct copy of a report entitled "Apple

19 Presents iPhone 4."

This copy of this report was printed on May 25, 2011 from the website of

20 Apple at the following website address: http://www.apple.com/pr/library/2010/06/07iphone.html.
21

5.

Attached hereto as Exhibit 4 is a true and correct copy of a report entitled "Apple

22 Announces the New iPhone 3GS—The Fastest, Most Powerful iPhone Yet."

This copy of this

23 report was printed on May 25, 2011 from the website of Apple at the following website address:
24 http://www.apple.com/pr/library/2009/06/08iphone.html.
25

6.

Attached hereto as Exhibit 5 is a true and correct copy of a report entitled "Apple

26 Introduces the New iPhone 3G."

This copy of this report was printed on May 25, 2011 from the

27 website of Apple at the following website address:
28 http://www.apple.com/pr/library/2008/06/09iphone.html.
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1

7.

Attached hereto as Exhibit 6 is a true and correct copy of a report entitled "iPhone

2 Premieres This Friday Night at Apple Retail Stores."

This copy of this report was printed on

3 May 25, 2011 from the website of Apple at the following website address:
4 http://www.apple.com/pr/library/2007/06/28iphone.html.
5

8.

Attached hereto as Exhibit 7 is a true and correct copy of a report entitled "Apple

6 Launches iPad 2."

This copy of this report was printed on May 25, 2011 from the website of

7 Apple at the following website address: http://www.apple.com/pr/library/2011/03/02ipad.html.
8

9.

Attached hereto as Exhibit 8 is a true and correct copy of a report entitled "Apple

9 Launches iPad."

This copy of this report was printed on May 25, 2011 from the website of Apple

10 at the following website address: http://www.apple.com/pr/library/2010/01/27ipad.html.
11

10.

Attached hereto as Exhibit 9 is a true and correct copy of a report entitled "Apple

12 Discontinues Sale of IPhone 3G Model Ahead of Conference."

This copy of this report was

13 printed on May 25, 2011 from the website of Bloomberg Businessweek at the following website
14 address: http://www.businessweek.com/news/2010-06-04/apple-discontinues-sale-of-iphone-3g15 model-ahead-of-conference.html.
16

11.

Attached hereto as Exhibit 10 is a true and correct copy of a letter sent on May 16,

17 2011 from Victoria F. Maroulis, of Quinn Emanuel Urquhart & Sullivan, LLP, Samsung's counsel,
18 to the attention of Jason R. Bartlett, of Morrison and Foerster LLP, Apple's counsel.
19

12.

Attached hereto as Exhibit 11 is a true and correct copy of a letter sent on May 19,

20 2011 from Victoria F. Maroulis, of Quinn Emanuel Urquhart & Sullivan, LLP, Samsung's counsel,
21 to the attention of Jason R. Bartlett, of Morrison and Foerster LLP, Apple's counsel.
22

13.

Attached hereto as Exhibit 12 is a true and correct copy of a letter sent on May 20,

23 2011 from Jason R. Bartlett, of Morrison and Foerster LLP, Apple's counsel, to the attention of
24 Victoria F. Maroulis, of Quinn Emanuel Urquhart & Sullivan, LLP, Samsung's counsel.
25

14.

Attached hereto as Exhibit 13 is a true and correct copy of a letter sent on May 24,

26 2011 from Jason R. Bartlett, of Morrison and Foerster LLP, Apple's counsel, to the attention of
27 Todd Briggs, of Quinn Emanuel Urquhart & Sullivan, LLP, Samsung's counsel.
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1

15.

Attached hereto as Exhibit 14 is a true and correct copy of a report entitled "First

2 Gen iPhone Shortage Hits NYC."

This copy of this report was printed on May 25, 2011 from the

3 website of Gizmodo at the following website address: http://ca.gizmodo.com/388517/first-gen4 iphone-shortage-hits-nyc.
5

16.

Attached hereto as Exhibit 15 is a true and correct copy of a report entitled "iPhone

6 is 'unavailable' in UK and US Apple stores; 3G release imminent?"

This copy of this report was

7 printed on May 25, 2011 from the website of TUAW at the following website address:
8 http://www.tuaw.com/2008/05/10/iphone-is-unavailable-in-uk-and-us-apple-stores-3g-release-im/.
9

17.

Attached hereto as Exhibit 16 is a true and correct copy of a report entitled "Apple

10 halts online iPhone sales, stores out of stock." This copy of this report was printed on May 25,
11 2011 from the website of MobileCrunch at the following website address:
12 http://www.mobilecrunch.com/2008/05/11/apple-halts-online-iphone-sales-stores-out-of-stock/.
13

18.

Attached hereto as Exhibit 17 is a true and correct copy of a report entitled "No

14 More iPhones at Apple Store – 3G Imminent?" This copy of this report was printed on May 25,
15 2011 from the website of TechCrunch at the following website address:
16 http://techcrunch.com/2008/05/11/no-more-iphones-at-apple-store-3g-imminent/.
17

19.

Attached hereto as Exhibit 18 is a true and correct copy of a report entitled

18 "Today's sign that the 3G iPhone is nigh."

This copy of this report was printed on May 25, 2011

19 from the website of CNET at the following website address: http://news.cnet.com/8301-13579_320 9941728-37.html?tag=mncol;txt.
21

20.

Attached hereto as Exhibit 19 is a true and correct copy of a report entitled "Apple

22 Countersues Nokia."

This copy of this report was printed on May 26, 2011 from the website of

23 Apple at the following website address:
24 http://www.apple.com/pr/library/2009/12/11countersue.html
25

21.

Attached hereto as Exhibit 20 is a true and correct copy of a report entitled "Apple

26 Sues HTC for Patent Infringement."

This copy of this report was printed on May 26, 2011 from

27 the website of Apple at the following website address:
28 http://www.apple.com/pr/library/2010/03/02patents.html.
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1

22.

Attached hereto as Exhibit 21 is a true and correct copy of a page found on the

2 website of Palm.

This copy was printed on May 26, 2011 and can be found by visiting the

3 following website address and clicking on the tab entitled "webOS":
4 http://www.palm.com/us/products/phones/pre/index.html.
5

23.

Attached hereto as Exhibit 22 is a true and correct copy of a page found on the

6 website of RIM.

This copy was printed on May 26, 2011 from the following website address:

7 http://us.blackberry.com/smartphones/blackberrystorm/.
8

24.

9 website of LG.

Attached hereto as Exhibit 23 is a true and correct copy of a page found on the
This copy was printed on May 26, 2011 and can be found by visiting the

10 following website address and clicking on the tab entitled "Gallery":
11 http://www.lg.com/us/mobile-phones/LG-LGAS740.jsp.
12

25.

Attached hereto as Exhibit 24 is a true and correct copy of a page found on the

13 website of Motorola. This copy was printed on May 26, 2011 from the following website
14 address: http://www.motorola.com/Consumers/US-EN/Consumer-Product-and-Services/Mobile15 Phones/Motorola-ATRIX-US-EN.
16

26.

Attached hereto as Exhibit 25 is a true and correct copy of page found on the

17 website of Sony Ericsson.

This copy was printed on May 26, 2011 from the following website

18 address: http://www.sonyericsson.com/play/main.aspx?cc=us&lc=en#screen-1.
19

27.

Attached hereto as Exhibit 26 is a true and correct copy of a still image from an

20 animation found on the website of Nokia.

This copy was printed on May 26, 2011 and can be

21 found by visiting the following website address and clicking on the second blinking button from
22 the top of the phone entitled "3.2" Touch Screen Display":
23 http://www.nokia.com/NOKIA_COM_1/Microsites/Nokia_5800_XpressMusic/#/touch/.
24

28.

Attached hereto as Exhibit 27 is a true and correct copy of an email chain between

25 Erik Olson, an associate at Quinn Emanuel Urquhart & Sullivan, LLP, counsel to Samsung, and
26 Jason Bartlett of Morrison and Foerster LLP, dated May 26, 2011 and May 27, 2011.
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1

29.

Attached hereto as Exhibit 28 is a true and correct copy of excerpts from a

2 Transcript of Proceedings Before the Honorable Lucy H. Koh, United States District Judge, in
3 Apple Inc. v. Samsung Electronics Co., et al., No. C-11-01846-LHK (N.D. Cal.) (May 12, 2011).
4 Parties’ Conference Concerning Discovery Dispute
5

30.

On May 16, 2011, my partner, Victoria F. Maroulis, sent a letter to counsel for

6 Apple, Inc. (“Apple”) that set forth reciprocal discovery that Samsung requests from Apple.
7

31.

Not having heard back from Apple, on May 19, 2011, Ms. Maroulis sent another

8 letter to counsel for Apple, asking that Apple inform Samsung by the end of the week whether
9 Apple would produce the discovery Samsung requested.
10

32.

On May 20, 2011, Jason R. Bartlett, of Morrison & Foerster LLP, counsel for

11 Apple, sent Ms. Maroulis a letter informing her that Apple rejected the discovery requests set forth
12 in Ms. Maroulis’ May 16 letter.
13

33.

On May 23, 2011, I conducted a teleconference with Mr. Bartlett and Grant L. Kim,

14 also of Morrison & Foerster LLP. My associate, Erik C. Olson, was also on the call.

During

15 the teleconference, I explained to counsel for Apple why Samsung needed the discovery requested
16 in Ms. Maroulis’ letter of May 16.

Specifically, I explained that the requested discovery was

17 relevant to an analysis of whether there will be a likelihood of confusion between Apple’s future
18 products and Samsung’s future products.

I asked counsel for Apple whether Apple would

19 withdraw its rejection of Samsung’s discovery requests in light of our discussion.

Counsel for

20 Apple said they would confer with Apple and get back to us with Apple’s response the following
21 day.
22

34.

On May 24, 2011, Mr. Bartlett sent me a letter informing me that Apple maintained

23 its refusal to produce the discovery requested in Ms. Maroulis’ May 16 letter.
24 Samsung’s Civil L.R. 6-3 Motion to Shorten Time For Briefing and Hearing Schedule
25 Reasons for the Request
26
27

35.

On May 18, 2011, the Court issued a written order granting Apple limited

expedited discovery of Samsung’s future products, including Samsung’s production to Apple of

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1 “[t]he latest iteration of product samples for the Galaxy S2, Galaxy Tab 8.9, Galaxy Tab 10.1,
2 Infuse 4G, and 4G LTE (or ‘Droid Charge’),” as well as the latest iterations of the packaging and
3 packaging inserts for these products.

(Order Granting Limited Expedited Disc. (D.N. 52), at 6.)

4 Apple stated in its Reply In Support of Its Motion to Expedite Discovery that “Apple seeks
5 expedited discovery for the express purpose of evaluating a motion for a preliminary injunction
6 directed at products to be released in the near future.”
7

36.

(D.N. 34 at 6.)

On May 16, after the hearing on Apple’s Motion to Expedite Discovery, Samsung

8 requested that Apple produce samples of the final, commercial version of the next generation
9 iPhone and iPad that Apple will release, as well as the final version of the packaging in which
10 these products will be delivered to retail customers and the final version of the insert(s) that will
11 be included within such packaging.
12

37.

Apple has informed Samsung that Apple does not believe that the discovery that

13 Samsung has requested will be relevant to the resolution of a motion for a preliminary injunction
14 that Apple will bring in this lawsuit.
15

38.

Apple has not agreed to provide any discovery prior to its filing of a preliminary

16 injunction motion.
17

39.

Samsung seeks resolution of this discovery dispute on a shortened schedule so that

18 it is not prejudiced in defending against Apple’s motion for a preliminary injunction by Apple’s
19 early access to Samsung’s products, but Samsung’s delayed access to the discovery it seeks from
20 Apple.
21 Samsung’s Effort’s to Obtain a Stipulation
22

40.

On May 26, 2011, my associate, Erik C. Olson, e-mailed Mr. Bartlett asking

23 whether Apple would join a stipulated request to shorten time on the briefing and hearing schedule
24 for Samsung’s Motion to Compel Apple to Produce Reciprocal Expedited Discovery (“Motion to
25 Compel”).

Attached to the email was a draft stipulated request.

Mr. Olson asked Mr. Bartlett to

26 inform Samsung whether Apple would join the stipulated request by the morning of May 27.

(Ex.

27 27, attached hereto.)
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1

41.

On May 27, Mr. Bartlett e-mailed Mr. Olson, stating that Apple declined to join the

2 stipulated request.

However, Mr. Bartlett also stated that Apple would not oppose a motion by

3 Samsung to obtain the briefing schedule set forth below.
4

- Samsung’s Opening Brief on its Motion will be due on or before May 27, 2011;

5

- Apple’s Opposition to Samsung’s Motion will be due on or before June 2, 2011; and

6

- Samsung’s Reply in support of its Motion will be due on or before June 7, 2011.

7 (Ex. 27, attached hereto.)
8 Prejudice that Samsung Will Suffer If the Court Does Not Shorten Time
9

42.

Currently, Samsung must produce to Apple samples of the latest iterations of the

10 Galaxy S2, Galaxy Tab 8.9, Galaxy Tab 10.1, Infuse 4G and 4G LTE, and those products’
11 packaging and packaging inserts by June 17.
12

43.

Apple has stated that it sought these product samples “for the express purpose of

13 evaluating a motion for a preliminary injunction directed at [Samsung] products to be released in
14 the near future.”
15

44.

(Apple’s Reply In Support of Mot. to Expedite Disc. (D.N. 34), at 6.)

Apple has not agreed to provide any discovery prior to its filing of a preliminary

16 injunction motion.
17

45.

If Samsung’s Motion to Compel is not heard on a shortened schedule, Apple will

18 have the opportunity to use Samsung’s produced product samples and other discovery to work up
19 its motion for a preliminary injunction and supporting evidence.

In the meantime, Samsung

20 would not have relevant discovery from Apple that it could use to prepare its defense to such a
21 motion.

Any delay in resolving the current discovery dispute would thus prejudice Samsung’s

22 ability to defend itself on the merits against any motion for a preliminary injunction.
23 Prior Time Modifications
24
25 10.)

46.

On Monday, April 19, 2011, Apple filed a Motion to Expedite Discovery. (D.N.

Also on April 19, Apple filed a Motion to Shorten Time for Briefing and Hearing on its

26 Motion to Expedite Discovery (“Motion to Shorten Time”). (D.N. 12.)

The Court granted in

27 part Apple’s Motion to Shorten Time, resulting in an approximately 12-day shortening of the
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1 briefing and hearing schedule that would have otherwise been allowable under the Local Rules.
2 (D.N. 26.)
3 Effect of Requested Modification
4

47.

The requested modification should have no effect on the rest of the schedule in this

5 action.
6

I declare under penalty of perjury that the foregoing is true and correct. Executed in

7 Redwood Shores, California on May 27, 2011.
8
9
10
11

By /s/ Todd M. Briggs
Todd M. Briggs

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