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)

Exhibit 13

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May 24, 2011
Via E-Mail
Todd Briggs
Quinn Emanuel
555 Twin Dolphin Drive, 5th Floor
Redwood Shores, CA 94065-2139
Re:

Apple Inc. v. Samsung Electronics Co., et al.
Case No. 11-cv-1846-LHK

Dear Todd:
I am following up our call yesterday about Samsung’s request that Apple produce future
Apple products. As noted in my May 20 letter to Victoria Maroulis, Apple will base any
preliminary injunction motion on its current intellectual property rights, as embodied in its
current products. Apple will not rely on future Apple products. Therefore, future Apple
products are irrelevant to any such motion.
You asserted that future Apple products are relevant to a preliminary injunction because they
bear on “likelihood of expansion of product lines,” which is one of the “likelihood of
confusion” factors in AMC Inc. v. Sleekcraft Boars, 599 F.2d 341 (9th Cir. 1979). You also
stated that you do not know of any other reasons why such future products are relevant.
Sleekcraft does not support your position because it involved expansion of product lines that
were not competitive (family-oriented boats and low-profile racing boats) to make the
product lines competitive. 599 F.2d at 348. This expansion was relevant because “[t]he
evidence shows that both parties are diversifying their model lines,” creating a “strong”
potential that “one or both of the parties will enter the other’s submarket with a competing
model.” Id. at 348.

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Todd Briggs
May 24, 2011
Page Two
Here, in contrast, Samsung already competes directly with Apple’s highly distinctive and
innovative mobile phones and tablet computers. Thus, the likelihood of future expansion of
the parties’ product lines is not relevant to the issues in this case.1
Apple nevertheless remains willing to engage in expedited discovery, provided that such
discovery is reciprocal and directed to relevant issues. Therefore, we propose that the parties
agree to the following schedule for expedited discovery following the filing of a preliminary
injunction motion:
Day after filing: Apple and Samsung negotiate the scope of documents to be
produced.
Two weeks later: Apple produces documents;
One week later: Apple makes its declarants available for deposition
One week later: Samsung files opposition and produces documents
One week later: Samsung makes its declarants available for deposition
One week later: Apple files its reply.
Two weeks later: Hearing on PI motion
Finally, if Samsung files a motion on its request that Apple produce future products, we are
prepared to address that motion on the expedited schedule that you suggested:
May 27: Samsung’s Motion
June 2:

Apple’s Opposition

June 7:

Samsung’s Reply

June 9:

Hearing at 1:30 p.m.

Would you please let us know if you have reserved that hearing date with Judge Koh’s
Courtroom Deputy?
I look forward to your response.
1

Notably, Apple sought production of Samsung’s soon to be released products to determine if those products
will infringe Apple’s current intellectual property rights, not for an assessment of the Sleekcraft likelihood of
expansion factor, which is unnecessary for competing products.

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Todd Briggs
May 24, 2011
Page Three
Sincerely,

Jason R. Bartlett

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