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 28

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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., A CALIFORNIA
CORPORATION,

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PLAINTIFF,

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VS.
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,
DEFENDANTS.

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C-11-01846 LHK
SAN JOSE, CALIFORNIA
MAY 12, 2011
PAGES 1-52

TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE LUCY H. KOH
UNITED STATES DISTRICT JUDGE

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APPEARANCES ON NEXT PAGE

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OFFICIAL COURT REPORTER: LEE-ANNE SHORTRIDGE, CSR, CRR
CERTIFICATE NUMBER 9595

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A P P E A R A N C E S:

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FOR THE PLAINTIFF:

MORRISON & FOERSTER
BY: HAROLD J. MCELHINNY,
MICHAEL A. JACOBS,
JASON R. BARTLETT, AND
GRANT L. KIM
425 MARKET STREET
SAN FRANCISCO, CALIFORNIA 94105

ALSO PRESENT:

MAUREEN MCCALL AND JAMES WITT

FOR THE DEFENDANT:

QUINN, EMANUEL, URQUHART,
OLIVER & HEDGES
BY: CHARLES K. VERHOEVEN AND
ERIK C. OLSON
50 CALIFORNIA STREET, 22ND FLOOR
SAN FRANCISCO, CALIFORNIA 94111

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BY:

VICTORIA F. MAROULIS AND
KEVIN P.B. JOHNSON
555 TWIN DOLPHIN DRIVE
SUITE 560
REDWOOD SHORES, CALIFORNIA 94065

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VAGUE.

I WON'T ADOPT THAT.

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I MEAN, NORMALLY MR. VERHOEVEN WOULD HAVE

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90 TO 120 DAYS TO GET ALL THIS ORGANIZED.

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ASKING HIM TO DO IT IN 30.

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REASONABLE.

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MR. MCELHINNY:

YOU'RE

IT'S GOT TO BE

WHAT I WANT -- WHAT I

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WANT IS THE PACKAGE OF MATERIALS THAT IS PREPARED

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THAT IS UNIQUE TO THIS PRODUCT, WHICH IS ALREADY --

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THEY WOULD HAVE IT TOGETHER IN ONE PLACE, THEY DO

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HAVE IT TOGETHER IN ONE PLACE, THAT DESCRIBES HOW

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THE PRODUCT IS TO BE MARKETED.

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THE COURT:

PACKAGE OF MATERIALS UNIQUE

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TO PRODUCT THAT DESCRIBES HOW PRODUCT IS TO BE

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MARKETED?

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THAT JUST SOUNDS TOO BROAD TO ME.
MR. VERHOEVEN:

I DON'T HAVE ANY IDEA

WHAT THAT MEANS.

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THE COURT:

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MR. VERHOEVEN:

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THE COURT:

I REALLY DON'T EITHER.
YOUR HONOR --

ANYWAY, I'M REALLY SORRY, I

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HAVE TWO OTHER CASES THAT HAVE BEEN PATIENTLY

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WAITING.

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MR. MCELHINNY:

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THE COURT:

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MR. VERHOEVEN:

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I KNOW.

WE NEED TO MOVE ON WITH THIS.
YOUR HONOR, MAY I SAY ONE

THING VERY BRIEFLY?
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THE COURT:

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MR. VERHOEVEN:

YES.
IF WE'RE GOING TO HAVE

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EXPEDITED DISCOVERY FOR THE EXPRESS PURPOSE OF THEM

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FILING A MOTION FOR PRELIMINARY INJUNCTION, WHICH

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WE OPPOSE, YOUR HONOR, BUT IF THAT'S WHAT'S GOING

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TO HAPPEN, IN ALL FAIRNESS, SHOULDN'T THAT

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DISCOVERY BE RECIPROCAL?

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AND I WOULD REQUEST -- I DON'T KNOW
WHETHER WE WOULD GO TO THE MAGISTRATE BECAUSE I

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KNOW THE MAGISTRATE'S BEEN ASSIGNED, BUT THERE ARE

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THINGS THAT WE FAIRLY SHOULD BE ENTITLED TO GET,

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THROUGH DISCOVERY, TO OPPOSE A PRELIMINARY

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INJUNCTION, SUCH AS ANY EVIDENCE THEY HAVE OF ANY

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CONFUSION, OR LACK OF CONFUSION, BETWEEN THESE

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PRODUCTS AND APPLE PRODUCTS; ANY DOCUMENTS

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CONCERNING GOOD WILL; LOSS OF GOOD WILL; MARKET

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SHARE; REPUTATION TO APPLE THROUGH THE INTRODUCTION

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OF THESE.

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IF THEY'VE DONE RESEARCH SURVEYS OR

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STUDIES RELATING TO LIKELIHOOD OF CONFUSION, WE

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WOULD BE ENTITLED TO THOSE IF WE WERE TO FAIRLY

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OPPOSE A PRELIMINARY INJUNCTION MOTION.

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THE COURT:

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MR. MCELHINNY:

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WHAT'S YOUR RESPONSE TO THAT?
MY RESPONSE TO THAT, YOUR

HONOR, IS THAT THE RULES SET OUT THE BASIS FOR
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THIS.

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THERE'S BEEN NO REQUEST -- I MEAN, WE
FILED THREE BRIEFS HERE.

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THERE'S BEEN NO REQUEST.

THE WAY DISCOVERY STARTS IN THIS

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DISTRICT, WHICH IS A MEET AND CONFER ABOUT WHAT

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THEY REASONABLY NEED, IF THEY'RE GOING TO NEED IT

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TO OPPOSE AN INJUNCTION AND IF IT'S REASONABLE AND

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IF YOUR HONOR IS GOING TO GIVE IT TO THEM, WE'LL

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RESOLVE THAT.

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I HAVE SAID NOW TWICE THAT WE'RE WILLING

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TO LIVE BY THE RULES THAT YOU SET FOR US, BECAUSE

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WE WANT AN INJUNCTION HERE AND WE'RE NOT GOING TO

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GET AN INJUNCTION HERE IF WE'RE NOT RECIPROCAL IN

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DISCOVERY.

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I UNDERSTAND THAT.
THE COURT:

OKAY.

SO I'M HEARING THAT

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YOU ARE WILLING, THEN, TO AGREE TO SOME EXPEDITED

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PRODUCTION OF YOUR OWN.

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MR. MCELHINNY:

YES.

THE ANSWER TO THAT

IS YES, AS YOUR HONOR STATES IT.

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CAN I SUGGEST, ON THE DEPOSITION ISSUE --

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THE COURT:

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MR. MCELHINNY:

YES.
-- THAT WE WILL ACCEPT

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THEIR GOOD FAITH IF THEY GIVE US A PERSON THAT

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THEY'RE GOING TO CERTIFY AS, YOU KNOW,

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KNOWLEDGEABLE ON THESE AREAS, WE WILL TAKE IT AS A
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PERSONAL DEPOSITION.

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PRODUCE A 30 -- A 30(B)(6) AND A SEARCH --

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THE COURT:

WE WILL NOT REQUIRE THEM TO

I WON'T GIVE YOU A 30(B)(6).

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THAT'S NOT FAIR TO MAKE THEM GO THROUGH THE WHOLE

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COMPANY ON THIS EXPEDITED --

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MR. MCELHINNY:

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THAT'S WHAT I'M SAYING.

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HONOR.

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I UNDERSTAND THAT.
I'M AGREEING WITH YOUR

THAT'S -MR. VERHOEVEN:

YOUR HONOR, THERE IS

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ABSOLUTELY NO REASON, IF THIS IS ALL ABOUT DESIGN,

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ORNAMENTAL PATENT, DESIGN PATENTS AND TRADE DRESS

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THAT THEY NEED TO TALK TO SOMEBODY ABOUT IT.

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IF THEY HAVE THE PRODUCTS, THEY CAN LOOK

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AT WHAT THE PRODUCTS LOOK LIKE.

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DEPOSITION IN ORDER TO MAKE THEIR ASSESSMENT,

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NUMBER ONE.

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THEY DON'T NEED A

AND NUMBER TWO, THERE IS NO SINGLE PERSON

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IN THIS GIANT ORGANIZATION WITH ALL OF THESE

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PHONES.

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ACROSS AS CLEARLY AS I SHOULD HAVE, BUT IF YOU TAKE

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A LOOK AT THE PRODUCTS THEY'RE ASKING FOR, THAT'S

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NOT -- THOSE PRODUCTS ARE DIFFERENT FOR DIFFERENT

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CARRIERS BECAUSE IT'S A VERY COMPLEX PRODUCT, AND

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YOU -- IF YOU LOOKED AT MY SLIDE, FOR EXAMPLE, ON

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SLIDE -- I'LL BE VERY BRIEF, YOUR HONOR, SLIDE 2,

IF YOU TAKE -- I DON'T KNOW IF I GOT THIS

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MARKETING MATERIALS.

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NOW, IF SOMETHING CHANGES, I GUESS YOU
COULD COME BACK AND ASK.

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AT THIS POINT, I DON'T THINK THAT

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SAMSUNG'S REQUEST FOR MUTUAL DISCOVERY IS RIPE, BUT

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YOU CAN PURSUE THAT FOR SOME TYPE OF RECIPROCAL

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DISCOVERY.

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AND WHY DON'T WE SET A TIME, LIKE A
FURTHER CMC MAYBE -- OR I GUESS WE CAN JUST WAIT

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AND SEE WHAT, IF ANYTHING, GETS FILED AND THEN

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WE'LL SET IT THEN.

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THERE MAY BE ISSUES.

BUT I JUST ANTICIPATE THAT

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MR. MCELHINNY:

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THE COURT:

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MR. MCELHINNY:

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OKAY?
MAY I INQUIRE, YOUR

HONOR?

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THE COURT:

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MR. MCELHINNY:

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MAY I --

YES.
AGAIN, I'M IN THE SAME

MINDSET THAT I DON'T KNOW OF ANY OTHER ISSUES.

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THE COURT:

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MR. MCELHINNY:

YES.
BUT WE GOT AN ORDER

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ASSIGNING DISCOVERY MATTERS IN THIS CASE TO

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MAGISTRATE JUDGE GREWAL.

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THE COURT:

WELL, SINCE I'VE ISSUED THIS

ORDER, IF THERE'S ANY FOLLOW-UP REGARDING THIS
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ORDER, IT SHOULD COME TO ME.

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MR. MCELHINNY:

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THE COURT:

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THANK YOU, YOUR HONOR.

OKAY.

IS THERE ANYTHING

FURTHER?

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MR. MCELHINNY:

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THE COURT:

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MR. VERHOEVEN:

NOTHING, YOUR HONOR.

MR. VERHOEVEN?
SO ON THE RECIPROCAL

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ISSUE, I TAKE IT THEN THAT WE SHOULD DIRECT THAT TO

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YOUR HONOR AS WELL IF WE --

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THE COURT:

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MR. VERHOEVEN:

THAT'S FINE.
IF WE MEET AND CONFER --

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OBVIOUSLY WE'LL MEET AND CONFER, YOUR HONOR, AND IF

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WE'RE UNABLE TO REACH IT, WE'LL -- IF IT APPEARS TO

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US THAT THEY'RE PURSUING THE IDEA OF A PRELIMINARY

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INJUNCTION, WE WOULD WANT THAT DISCOVERY AS PART --

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PRIOR TO THE MOTION PRACTICE ON THAT.

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SO WE MAY HAVE TO FILE SOMETHING ON AN

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EXPEDITED SCHEDULE WITH YOUR HONOR IF WE CAN'T WORK

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IT OUT.

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THE COURT:

THAT'S FINE.

AND LET ME JUST

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SAY TO COUNSEL FOR APPLE, I'M NOT GOING TO BE HAPPY

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IF YOU'RE NOT GOING TO SAY WHAT'S GOOD FOR THE

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GOOSE IS NOT GOOD FOR THE GANDER.

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OKAY?

SO IF I'VE GRANTED YOU THIS EXPEDITED
DISCOVERY AND THEN YOU END UP BEING EXTREMELY
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UNREASONABLE ON THE RECIPROCAL DISCOVERY THAT'S

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REASONABLY REQUESTED, I'M NOT GOING TO BE VERY

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HAPPY WITH THAT.

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SO I'M HOPING THAT THERE WILL BE NO NEED

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FOR MOTION PRACTICE, THAT YOU MAY BE ABLE TO

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STIPULATE TO SOMETHING.

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MR. VERHOEVEN:

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THE COURT:

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THANK YOU, YOUR HONOR.

OKAY?

ALL RIGHT.

BUT THAT

SHOULD COME HERE.

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THANK YOU.

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MR. VERHOEVEN:

THANK YOU, YOUR HONOR.

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MR. MCELHINNY:

THANK YOU, YOUR HONOR.

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MR. OLSON:

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YOUR HONOR, MAY I APPROACH

THE COURT REPORTER TO ASK FOR A TRANSCRIPT?

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THE COURT:

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(WHEREUPON, THE PROCEEDINGS IN THIS

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OH, OKAY.

MATTER WERE CONCLUDED.)

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CERTIFICATE OF REPORTER

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I, THE UNDERSIGNED OFFICIAL COURT
REPORTER OF THE UNITED STATES DISTRICT COURT FOR

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THE NORTHERN DISTRICT OF CALIFORNIA, 280 SOUTH

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FIRST STREET, SAN JOSE, CALIFORNIA, DO HEREBY

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CERTIFY:

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THAT THE FOREGOING TRANSCRIPT,

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CERTIFICATE INCLUSIVE, CONSTITUTES A TRUE, FULL AND

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CORRECT TRANSCRIPT OF MY SHORTHAND NOTES TAKEN AS

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SUCH OFFICIAL COURT REPORTER OF THE PROCEEDINGS

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HEREINBEFORE ENTITLED AND REDUCED BY COMPUTER-AIDED

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TRANSCRIPTION TO THE BEST OF MY ABILITY.

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/S/
_____________________________
LEE-ANNE SHORTRIDGE, CSR, CRR
CERTIFICATE NUMBER 9595

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