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

Filing 603

EXHIBITS re #602 Administrative Motion to File Under Seal re Samsung's January 10, 2012 Filings Exhibit 1 - [Proposed] Public Redacted Version of Samsung's Motion to Compel filed bySamsung Electronics Co. Ltd.(a Korean corporation). (Attachments: #1 Exhibit Hutnyan Declaration, #2 Exhibit A, #3 Exhibit B, #4 Exhibit C, #5 Exhibit D, #6 Exhibit E, #7 Exhibit F, #8 Exhibit G, #9 Exhibit H, #10 Exhibit I, #11 Exhibit J, #12 Exhibit K, #13 Exhibit L, #14 Exhibit M, #15 Exhibit N, #16 Exhibit O, #17 Exhibit P, #18 Exhibit Q, #19 Exhibit R, #20 Exhibit S, #21 Exhibit T, #22 Exhibit U, #23 Exhibit V, #24 Exhibit W, #25 Exhibit X, #26 Exhibit Y, #27 Exhibit Z, #28 Exhibit AA, #29 Exhibit BB, #30 Exhibit CC, #31 Proposed Order)(Related document(s) #602 ) (Maroulis, Victoria) (Filed on 1/11/2012)

1 QUINN EMANUEL URQUHART & SULLIVAN, LLP
Charles K. Verhoeven (Cal. Bar No. 170151)
 [e-mail]
50 California Street, 22nd Floor
 San Francisco, California 94111
Telephone: [phone]
 Facsimile: [phone]
 Kevin P.B. Johnson (Cal. Bar No. 177129)
[e-mail]
 Victoria F. Maroulis (Cal. Bar No. 202603)
[e-mail]
 555 Twin Dolphin Drive 5th Floor
Redwood Shores, California 94065
 Telephone: [phone]
Facsimile: [phone]

Michael T. Zeller (Cal. Bar No. 196417)
 [e-mail]
865 S. Figueroa St., 10th Floor
 Los Angeles, California 90017
Telephone: [phone]
 Facsimile: [phone]
 Attorneys for SAMSUNG ELECTRONICS
CO., LTD., SAMSUNG ELECTRONICS
 AMERICA, INC. and SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC



UNITED STATES DISTRICT COURT



NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION

 APPLE INC., a California corporation,

CASE NO. 11-cv-01846-LHK



DECLARATION OF DIANE C.
HUTNYAN IN SUPPORT OF
SAMSUNG’S MOTION TO COMPEL
APPLE TO PRODUCE DOCUMENTS
AND THINGS



Plaintiff,
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.


Date: January 18, 2012
Time: 10:00 a.m.
Place: Courtroom 5, 4th Floor
Judge: Hon. Paul S. Grewal
[PROPOSED] PUBLIC REDACTED
VERSION




02198.51855/4539505.5

Case No. 11-cv-01846-LHK
DECLARATION OF DIANE C. HUTNYAN

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I, Diane C. Hutnyan, declare:

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1.

I am a partner at Quinn Emanuel Urquhart & Sullivan, LLP, counsel for Samsung

3 Electronics Co., Ltd., Samsung Electronics America, Inc. and Samsung Telecommunications
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America, LLC (collectively, “Samsung”).

I am licensed to practice law in the State of California.

I submit this declaration in support of Samsung’s Motion to Compel Apple to Produce Documents

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and Things.

I have personal knowledge of the facts set forth in this declaration and, if called

upon as a witness, I could and would testify to the following facts.
2.

On January 5, 2012, the parties held a lead counsel meet and confer session.

At 3

10 a.m., approximately six hours before the meet and confer, Apple's counsel sent Samsung's counsel
11 a letter setting forth Apple's position for the first time on many of these items.
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A true and correct

copy of this letter is attached hereto as Exhibit A.

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3.

Attached hereto as Exhibit B is a true and correct copy of the January 7, 2012,

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letter from Apple's counsel to Samsung's counsel.

16 Source Code and Technical Documents
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4.

On August 3 and September 16, 2011, Samsung propounded Requests for

18 Production ("RFPs") directed to obtaining source code and technical documents relating to Apple's
19 products and prior art.
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5.

Attached hereto as Exhibit C is a true and correct copy of certain Requests for

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Admission Samsung propounded on September 16, 201,

asking Apple to admit that the accused

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phones comply with the 3GPP Standard.
6.

Attached hereto is Exhibit D is a true and correct copy of certain of Apple's

25 Responses and Objections to Samsungs Requests for Admission, received October 26, 2011.

In

26 these responses,
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7.

Attached hereto as Exhibit E is a true and correct copy of the December 2, 2011.

letter from Samsung's counsel to Apple's counsel requesting production of 15 categories of source

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code and technical documents.
8.

Attached hereto as Exhibit F is a true and correct copy of the December 6, 2011.

8 email from Apple's counsel to Samsung's counsel, in which Apple agreed to produce five
9 categories of source code and technical documents.
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9.

During the parties' lead counsel meet and confer, Apple confirmed that it was only

willing produce the limited set of source code described in Mr. Maselli's December 6, 201, email.

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Apple further stated that it was unable to produce source code relating to baseband processors
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because the processors are manufactured by third parties.
10.

Attached hereto as Exhibit G is a true and correct printout of the following URL:

16 http://www.3gpp.org/article/umts, accessed at 5 p.m. on January 10, 2012.
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11.

Attached hereto as Exhibit H is a true and correct printout of the following URL:

18 http://www.apple.com/iphone/iphone-4/specs.html, accessed at 5 p.m. on January 10, 2012.
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NeXTSTEP Operating System

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12.

On October 5, 2011, Samsung issued RFPs directed to documents and things

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associated with the NeXTSTEP Operating System.
13.

Attached hereto as Exhibit I is a true and correct copy of my December 16, 2011,

24 letter to Apple's counsel in which several categories of documents and things relating to the
25 NeXTSTEP OS were requested.
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14.

During the parties’ December 21, 2011, non-lead counsel meet and confer, Apple

stated that it would produce only the NeXT OS source code.

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15.

Attached hereto as Exhibit J is a true and correct copy of the December 27, 2011

2 letter from Samsung's counsel to Apple's counsel reiterating its original request.
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16.

During the parties’ lead counsel meet and confer, Apple confirmed that it would

only produce the NeXT OS source code.

Apple also stated that it had represented to another

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party before the ITC that it did not have any materials relating to the NeXT OS, but that it
produced the materials months later.

8 MCOs, Physical Models, and Working Prototypes
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17.

During the December 1, 2011 deposition of

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

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from the
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18.

Attached hereto as Exhibit L is a true and correct copy of my December 3, 2011

15 letter to Apple's counsel, in which Samsung asked for Apple to produce these items.
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19.

During the non-lead counsel meet and confer on December 21, 2011, Apple refused

17 to produce the MCOs that Samsung requested because Apple claimed that Samsung's request was
18 "overbroad."
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Apple conditioned producing working prototypes on Samsung's production of

working prototypes.

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20.

On January 5, 2012, Apple's counsel suddenly

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That letter is attached previously hereto as Exhibit A.

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21.

At the lead counsel meet and confer session, Apple again refused to produce all of

25 the MCOs requested by Samsung.
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Apple also refused to provide a date certain by which it would

produce all prototypes, search for “incomplete” models, or produce MCOs and physical models by

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Case No. 11-cv-01846-LHK
DECLARATION OF DIANE C. HUTNYAN

1 January 9, 2012 as requested by Samsung.
2 Mac OS X Tiger
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22.

Despite that fact that Mac OS X Tiger is prior art to the D‘305 patent, Apple failed

to disclose it.

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Attached hereto as Exhibit M is a true and correct copy of

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excerpts from the

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23.

Attached hereto as Exhibit N is a true and correct copy of the October 18, 2011,

9 letter from Samsung's counsel to Apple's counsel requesting items relating to Mac OS X Tiger.
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24.

During the non-lead counsel meet and confer on December 21, 2011, Apple stated

that Samsung’s request was overbroad and burdensome, and agreed to produce only screenshots of

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the Tiger dock icons.
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25.

During the lead counsel meet and confer , Apple stated that it would produce only a

15 DVD of Mac OS X Tiger version 10.4.3.
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26.

Apple refused to enter into a stipulation that would have allowed Samsung to install

17 the produced copy of Mac OS X Tiger on a computer that met Apple’s published specifications.
18 Stanford Archive
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27.

Apple had previously represented that it had exhausted its search for historical,

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prior art documents, and that it had produced all responsive documents.

However, in late

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December 2011, Samsung learned through media reports that Apple had donated to Stanford large

23 amounts of documents and things relating to the design history of the products at issue.

At the

24 parties’ lead counsel meet and confer, Apple admitted that this library holds relevant historical
25 documents and artifacts, had been accessed by it for recent litigation against another adversary,
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and has an established process for granting access to third parties upon Apple’s request.

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28.

Attached hereto as Exhibit O is a true and correct copy of the January 9, 2012

2 email from
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Survey and Marketing Documents
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29.

On August 3, 2011, and October 5, 2011, Samsung issued RFPs directed to

obtaining survey and marketing documents from Apple.
30.

Attached hereto as Exhibit P is a true and correct copy of the December 3, 2011,

9 letter from Samsung's counsel to Apple's counsel requesting that Apple produce survey and
10 marketing documents on a reciprocal basis.
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31.

Attached hereto as Exhibit Q is a true and correct copy of the December 30, 2011,

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letter from Samsung's counsel to Apple's counsel, in which Samsung identified certain categories
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of marketing documents for which Apple's production was deficient.
32.

Attached hereto as Exhibit R is a true and correct copy of my January 2, 2012,

16 letter to Apple's counsel.
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33.

In its January 5, 2012, letter (attached previously hereto as Exhibit A), Apple stated

18 that Samsung had never before requested these documents, and agreed to produce only some of
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the requested survey and marketing documents by January 31, 2012.

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Financial Documents
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34.

On August 3, 2011, Samsung issued RFPs directed to Apple's financial documents.

35.

In its January 5, 2012,

letter (attached previously hereto as Exhibit A), Apple

24 stated that Samsung had never before requested these documents, and agreed to produce only
25 some of the requested documents by January 31, 2012.
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36.

During the lead counsel meet and confer, Apple reiterated that it would produce

only this subset of financial documents and not the balance of Samsung’s request, which would

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DECLARATION OF DIANE C. HUTNYAN

1 have included financial documents relating to Apple’s U.S. business models, financial projections,
2 and business or strategic plans relating to the products at issue and patents-in-suit.
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“Samsung” Documents
37.

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

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transcript of the October 31, 2011, deposition of
38.

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

8 transcript of the October 27, 2011, deposition of
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39.

For months now, Samsung has been asking Apple to search its documents for the

10 term “Samsung,” any aliases Apple and its employees may use when discussing Samsung, and
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related Samsung products. Attached hereto as Exhibit U is a true and correct copy of the

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November 20, 2011, letter from Apple's counsel to Samsung's counsel in which Apple agreed to
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search its documents for "Samsung" and its aliases.
40.

Attached hereto as Exhibit V is a true and correct copy of the December 5, 2011,

16 letter from Apple's counsel to Samsung's counsel in which Apple agreed to search its documents
17 for "Samsung," its aliases, and related Samsung products.
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41.

During the lead counsel meet and confer, Apple revealed that it did not search for

any Samsung aliases or product names.

Apple also refused to run the terms “Android” and

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“Droid.”
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Design History Documents
42.

Attached hereto as Exhibit W is a true and correct copy of the November 15,

24 2011, letter from Apple's counsel to Samsung's counsel, in which Apple disclosed the search terms
25 it had applied to its electronic document search.
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43.

Attached hereto as Exhibit X is a true and correct copy of the November 29, 2011,

letter from Samsung's counsel to Apple's counsel a letter proposing additional search terms.

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44.

Apple initially agreed to run these additional search terms, and agreed to inform

2 Samsung of any delimiters it applied.
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Apple failed to inform Samsung of any problems for

nearly a month, after which it finally revealed in a letter (a true and correct copy of which is
attached hereto as Exhibit Y) the delimiters it had applied.

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45.

Attached hereto as Exhibit Z is a true and correct copy of the December 30, 2011,

letter from Samsung's counsel to Apple's counsel proposing revised search terms.

8 Apple's Response to Samsung's 30(b)(6) Notice
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46.

On December 14, 2011, Samsung served Apple with its First 30(b)(6) Deposition

10 Notice ("30(b)(6) Notice").
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47.

During the non-lead counsel meet and confer on December 21, 2011, Samsung

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attempted to schedule a 30(b)(6) deposition. Apple stated that it would not produce any
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witnesses for any of the topics listed in Samsung's 30(b)(6) Notice unless Samsung unilaterally

15 withdrew its entire notice and served a new one.
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48.

Attached hereto as Exhibit AA is a true and correct copy of the December 27,

17 2011 letter from Apple's counsel to Samsung's counsel, in which Apple's counsel stated that
18 Samsung's 30(b)(6) Notice is "oppressive" on its face.
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49.

Attached hereto as Exhibit BB is a true and correct copy of my December 31,

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2011 letter to Apple's counsel, in which I explained Samsung's position.
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50.

Attached hereto as Exhibit CC is a true and correct copy of my January 3, 2012

23 letter to Apple's counsel proposing depositions for certain topics in Samsung's 30(b)(6) Notice.
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51.

During the lead counsel meet and confer, Apple again refused to provide witnesses

25 for any topics unless Samsung first withdrew its entire notice.
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Apple's Failure to Produce Fact Witnesses

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DECLARATION OF DIANE C. HUTNYAN

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52.

On December 7, 2011, Samsung served 49 notices of deposition for fact witnesses.

2 These fact witnesses include engineers, employees in the marketing department, and design
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specialists, and were identified by other Apple witnesses as possessing highly relevant
information.

To date, Apple has failed to provide a date for any of the 49 noticed fact witnesses.

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53.

As January 8, 2012, Samsung has offered Apple dates for nine of the thirty-seven

notices of deposition for fact witnesses.
I declare under penalty of perjury under the laws of the United States that the foregoing is

9 true and correct.
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Executed in Los Angeles, California on January 10, 2012.

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/s/ Diane C. Hutnyan
Diane C. Hutnyan

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