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

Filing 604

EXHIBITS re #602 Administrative Motion to File Under Seal re Samsung's January 10, 2012 Filings Exhibit 2 - [Proposed] Public Redacted Version of Samsung's Renewed Motion to Compel filed bySamsung Electronics Co. Ltd.. (Attachments: #1 Declaration Trac Declaration, #2 Declaration Hutnyan Declaration, #3 Exhibit A, #4 Exhibit B, #5 Exhibit C, #6 Exhibit D, #7 Exhibit E, #8 Exhibit F, #9 Exhibit G, #10 Proposed Order)(Related document(s) #602 ) (Maroulis, Victoria) (Filed on 1/11/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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APPLE, INC.,
PLAINTIFF,
VS.
SAMSUNG ELECTRONICS CO.
LTD., ET AL,
DEFENDANT.

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CV-11-1846-LHK
SAN JOSE, CALIFORNIA
DECEMBER 16, 2011
PAGES 1-66

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TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE PAUL S. GREWAL
UNITED STATES DISTRICT JUDGE

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

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FOR THE PLAINTIFF:

MORRISON & FOERSTER, LLP
BY: MICHAEL JACOBS
ESTHER KIM
JASON BARTLETT
RICHARD HUNG
425 MARKET STREET
SAN FRANCISCO, CA 94105

FOR THE DEFENDANT:

QUINN EMANUEL
BY: VICTORIA MAROULIS
555 TWIN DOLPHIN DR., 5TH FL
REDWOOD SHORES, CA 94065

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(APPEARANCES CONTINUED ON THE NEXT PAGE)

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OFFICIAL COURT REPORTER: SUMMER FISHER, CSR, CRR
CERTIFICATE NUMBER 13185
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FOR THE DEFENDANT:

QUINN EMANUEL
BY: BRETT ARNOLD
SARA JENKINS
MELISSA CHAN
555 TWIN DOLPHIN DRIVE, 5TH FL
REDWOOD SHORES, CA 94065

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SAN JOSE, CALIFORNIA

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DECEMBER 16, 2011

P R O C E E D I N G S
(WHEREUPON, COURT CONVENED AND THE
FOLLOWING PROCEEDINGS WERE HELD:)

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THE CLERK:

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ELECTRONICS COMPANY.

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APPLE, INC. VERSUS SAMSUNG
CASE NUMBER CV -11-1846.

MATTER ON FOR PLAINTIFF'S MOTION TO
COMPEL AND DEFENDANT'S MOTIONS TO COMPEL.
COUNSEL, PLEASE STATE YOUR APPEARANCES.
MR. JACOBS:

GOOD AFTERNOON YOUR HONOR.

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MICHAEL JACOBS FROM MORRISON & FOERSTER FOR APPLE.

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WITH ME IS RICH HUNG, JASON BARTLETT AND

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ESTHER KIM FROM MORRISON & FOERSTER.

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THE COURT:

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GOOD MORNING, OR I SHOULD SAY GOOD

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ALL RIGHT.

AFTERNOON TO EACH OF YOU.

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MS. MAROULIS:

GOOD MORNING, YOUR HONOR.

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VICTORIA MAROULIS FROM QUINN EMANUEL.

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WITH ME ARE MY COLLEAGUES BRETT ARNOLD,

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MELISSA CHAN AND SARA JENKINS.

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THE COURT:

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ALL RIGHT.

GOOD AFTERNOON TO

EACH OF YOU.
ALL RIGHT.

I HAVE A TOTAL OF THREE

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MOTIONS BEFORE ME.

I HAVE READ THE PAPERS,

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INCLUDING THOSE THAT WERE MOST RECENTLY SUBMITTED.
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AS I UNDERSTAND IT THERE'S ONE MOTION

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FROM APPLE AND TWO FROM SAMSUNG BEFORE ME THIS

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AFTERNOON.

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AGAIN, I'M AFRAID GIVEN THE OTHER

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CONSTRAINTS IN MY SCHEDULE I CAN ONLY AFFORD AN

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HOUR OF TIME FOR TODAY'S ARGUMENT, SO I WILL LEAVE

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IT FOR YOU ALL TO DECIDE HOW YOU SPEND YOUR HALF AN

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HOUR, BUT UNFORTUNATELY MY CRIMINAL CALENDAR TAKES

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PRIORITY AND I HAVE TO STOP AT 1:30.

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SO MR. JACOBS, I'LL START WITH YOU.
DO YOU WANT TO SPEND YOUR HALF-HOUR?

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MR. JACOBS:

CONCISELY, YOUR HONOR.

WE

HAVE NO PRESENTATIONS.

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HOW

AND I THINK WHAT WE ARE ASKING FROM YOU
TODAY CAN BE SUMMARIZED AS FOLLOWS:

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WE NEED TO LIGHT A FIRE UNDER SAMSUNG TO

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GET PRODUCTION DONE VERY QUICKLY.

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WE HAVE BEEN IN THIS CASE FOR A FAIR AMOUNT OF

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TIME.

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IT HAS LAGGED.

WE HAD A VERY PRODUCTIVE OCTOBER AND

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NOVEMBER BUT WE REALLY NEED TO GET DECEMBER TO BE A

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PRODUCTIVE MONTH GIVEN OUR SCHEDULE.

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NOTICED DEPOSITIONS IN KOREA FOR JANUARY.

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AND WE HAVE

I THINK THE HEART OF THE ISSUE, ACTUALLY
LOOKING AT SAMSUNG'S OPPOSITION BRIEF, IS THAT WE
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ENVISIONED GETTING THIS PRODUCTION IN TIME FOR

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THOSE DEPOSITIONS TO GO FORWARD.

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LITERALLY LAST NIGHT, THIS MORNING, GETTING DATES

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FROM SAMSUNG.

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WE ARE ONLY NOW,

THEY ARE LATER THAN WE ASKED FOR.

BUT THERE'S A KIND OF AN ALFONSE AND

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GASTON ASPECT TO THIS.

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WE NEED THEM FOR THE DEPOSITIONS.

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DOCUMENTS, WE ARE NOT FISHING HERE.

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WE NEED THESE DOCUMENTS.
THEY ARE CORE

WE HAVE ILLUSTRATED TO YOUR HONOR SOME OF

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THE DOCUMENTS WE GOT ALREADY THAT LEAD US TO THINK

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THAT WHEN THIS PRODUCTION IS DONE WE ARE GOING TO

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HAVE VERY PRODUCTIVE RESULTS.

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SO NUMBER ONE, WE WERE ASKING YOU TO

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PRESS SAMSUNG FOR REALLY EXPEDITIOUS PRODUCTION OF

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THE DOCUMENTS THAT THEY CONCEDE ARE RELEVANT.

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THERE ARE REALLY ACTUALLY -- IN GENERAL,

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THERE'S NOT A LOT OF FIGHTS HERE ABOUT RELEVANCE,

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IT'S ABOUT GETTING IT DONE.

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SO THAT'S NUMBER ONE WHAT WE ARE ASKING
FOR.
ON THEIR COMEBACK MOTIONS, IN MOST CASES

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WE ARE DONE ALREADY.

WE CONVEYED THAT IN OUR

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OPPOSITION BRIEF, OR THERE'S SOME THINGS THAT I

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THINK THIS IS KIND OF THE LONG TAIL OF THE

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PRODUCTION WE ARE AT NOW WHERE THEY ARE ASKING FOR
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THINGS THAT SURFACED IN DEPOSITIONS.
WE ARE ASKING FOR A COUPLE THINGS.

WE'RE

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ASKING FOR CONFIDENTIALITY PROTECTION FROM

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YOUR HONOR.

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ARE CHASING DOWN THINGS, ESPECIALLY WHERE WE ARE

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CHASING DOWN THINGS THAT ARE QUITE OLD.

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WE ARE ASKING FOR SOME TIME WHERE WE

AND THEN WE'RE ASKING FOR -- WE THINK WE

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DREW REASONABLE RELEVANCE CUTS SO THAT THE TOTAL

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BURDEN OF THIS PRODUCTION IS JUST MASSIVE AND NOT

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GARGANTUAN, AND WE WOULD LIKE YOUR SUPPORT FOR

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THOSE RELEVANCE DETERMINATIONS WE'VE MADE.

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SO THAT'S IT IN A NUT SHELL.

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AND ON THE OFFENSIVE MOTION, IF YOU WILL,

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ON OUR MOTION TO COMPEL, IT'S REALLY JUST A

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QUESTION OF GETTING IT DONE.

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THAT THIS IS WAY TOO FAST AND WHY THE RUSH BUT WE

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HAVE A RUSH WE HAVE A MARCH CUTOFF DATE.

SAMSUNG WILL PROTEST

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AND ON OUR SIDE THE ASYMMETRY IN THIS

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SITUATION IS THAT WE ARE GOING TO HAVE TO GO TO

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KOREA TO TAKE THE DEPOSITIONS AND THE DOCUMENTS

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WILL BE IN KOREAN AND WILL HAVE TO HAVE BEEN

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TRANSLATED.

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THE COURT:

CAN I ASK A QUESTION ABOUT

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THE SOURCE CODE THAT SAMSUNG HAS PRODUCED OR NOT

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PRODUCED TO DATE.
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I HAVE REVIEWED THE DECLARATIONS

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SUBMITTED BY SAMSUNG IN RESPONSE TO YOUR MOTION AND

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THEY SEEM TO SUGGEST THAT ON MULTIPLE OCCASIONS

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THEY HAVE IN FACT PRODUCED CODE.

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IS THAT NOT TRUE?
WITH WHAT THEY HAVE PRODUCED?

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IS THERE SOME PROBLEM

I WOULD LIKE TO HEAR YOUR THOUGHTS ABOUT
THAT.
MR. JACOBS:

SURE.

AS I READ THE PAPERS, WHAT THEY SAID IS

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THEY HAVE PROMISED TO PRODUCE.

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ASKING FOR IS PRODUCTION OR DEADLINES FOR

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PRODUCTION.

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THAT I UNDERSTAND WERE VERY RECENTLY PRODUCED, THEY

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HAVEN'T ACTUALLY PRODUCED THE CODE.

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WHAT WE HAVE BEEN

AND EXCEPT FOR MINOR FRAGMENTS OF CODE

SO THIS GOES BACK TO THE LOCAL RULE, THE

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REQUIREMENT THAT YOU PRODUCE CODE FOR AN ACCUSED

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INSTRUMENTALITY.

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IN THEIR ANSWER TO THAT THEY SAID, WE

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WILL GET AROUND TO IT AFTER WE MEET AND CONFER,

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AFTER WE HAVE A PROTECTIVE ORDER, NOTWITHSTANDING

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WE HAVE A DEFAULT PROTECTIVE ORDER.

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THEN THERE WERE VARIOUS LETTERS BACK AND

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FORTH AND VARIOUS COMMITMENTS, IN PRINCIPLE TO

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PRODUCE, BUT WHAT WE NEVER GOT FROM THEM WAS
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NATURAL PRODUCTION OR A HARD DATE FOR THAT

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PRODUCTION.

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AND I'M GOING TO TURN TO MY TEAM AND MAKE
SURE I'M REPRESENTING TO THE COURT ACCURATELY.

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MR. HUNG:

THAT IS CORRECT.

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WHAT HAPPENED WAS WE RECEIVED THE PROMISE

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ON OCTOBER 7TH AND THEN MULTIPLE LETTERS RELATING

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TO SOURCE CODE, ALMOST ALL OF WHICH WERE ON THE

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DEFENSIVE SIDE OF THE CASE, MEANING THEIR ASSERTION

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OF PATENTS AGAINST US.
AND FINALLY LAST NIGHT WITHIN A WEEK WE
RECEIVED SOME LIMITED AMOUNTS OF SOURCE CODE.
BEFORE THIS WEEK'S OFFER OF ACCESS TO

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SOURCE CODE, I BELIEVE THE TOTAL AMOUNT WAS A

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COUPLE OF PAGES OF A PRINTOUT RELATED TO ONE CODE,

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AT LEAST FOR THE OFFENSIVE SIDE.

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THE COURT:

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I HAD ANOTHER QUESTION REGARDING THE

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ALL RIGHT.

DESIGN HISTORY DOCUMENTS YOU ALL POINT TO.
SO AS I UNDERSTAND IT THERE HAS BEEN A
PRODUCTION; IS THAT NOT CORRECT?

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AGAIN, IS THE PROBLEM WITH THE QUALITY OR

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SUFFICIENCY OF THE PRODUCTION OR, TO DATE, HAVE YOU

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NOT RECEIVED ANYTHING LIKE CAD FILES AND THINGS OF

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THAT NATURE REGARDING PRODUCTS?
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MR. JACOBS:

RIGHT.

LET'S TAKE THE CAD

FILES TO START WITH.

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WHAT WE RECEIVED WERE THE FINAL CAD FILES

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FOR THE PRODUCT AS SHIPPED.

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THE CAD FILES THAT REPRESENT DEVELOPMENT

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DOCUMENTATION FOR THESE DESIGNS.

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THE COURT:

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HAVE YOU GOT ANY SKETCHBOOKS,

ANYTHING LIKE THAT?

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BUT WE HAVEN'T GOTTEN

MR. JACOBS:

I DON'T BELIEVE UNLESS, VERY

RECENTLY.
MR. HUNG:

AFTER FILING OUR MOTION WE

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RECEIVED ABOUT 20,000 PAGES WHICH I UNDERSTAND

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INCLUDE SOME SKETCHBOOKS.

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CAN SAY BETTER THAN WE CAN WHETHER IT'S ALL.

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DOUBT IT'S ALL BECAUSE THEY WERE PRIMARILY

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MARKETING DOCUMENTS AND THE LIKE WITHIN THOSE

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20,000 PAGES.

THEY CAN TELL -- THEY
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THE COURT:

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AND WHETHER WE'RE TALKING ABOUT CAD FILES

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OR I WILL CALL THEM INTERIM CAD FILES FOR LACK OF A

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BETTER TERM, SKETCHBOOKS AND SO FORTH, I TAKE IT

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IT'S THE DESIGNERS WHO WANT TO USE THESE FOUR, IT'S

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THE DEPOSITIONS OF THEIR DESIGNERS?

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MR. JACOBS:

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THE COURT:

OKAY.

ABSOLUTELY.
HAVE THOSE DEPOSITIONS BEEN
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FIXED YET?

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MR. JACOBS:

THEY HAVE NOT.

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AGAIN, THE SEQUENCING ISSUE.

JUST TO

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GIVE YOU OUR DEPOSITION STRATEGY HERE, WE

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IDENTIFIED WITNESSES UP FRONT THAT WE THOUGHT COULD

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HELP US SET THE STAGE FOR DOING THOUGHTFUL

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DEPOSITIONS GOING FORWARD.

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AND SO WE WERE TRYING TO GET THE
DOCUMENTS DONE TO HAVE THE DEPOSITIONS TO DO THE
THOUGHTFUL EXERCISE OF DEPOSITIONS AFTER THAT.

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THE COURT:

NOW, YOU ALSO, I BELIEVE

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REQUESTED A NUMBER OF E-MAILS REGARDING, TO WHAT

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EXTENT AT ALL THEY LOOKED AT YOUR PRODUCTS DURING

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THE DESIGN PROCESS.

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PRODUCTION.

I AM IN A FOG AS TO THAT

HAVE YOU RECEIVED ANY SUCH E-MAILS?

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MR. JACOBS:

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INJUNCTION DISCOVERY.

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NOT SINCE THE PRELIMINARY

AND AGAIN, WE HAVE AN AGREEMENT IN

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PRINCIPLE TO SEARCH FOR ALL REFERENCES TO APPLE.

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SIMILARLY, WE'RE SEARCHING FOR ALL REFERENCES TO

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SAMSUNG AND THAT'S WHAT WE ARE LOOKING FOR RIGHT

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AWAY.

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THE COURT:

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AND I HAD THOUGHT THAT BACK IN SEPTEMBER

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ALL RIGHT.

I ISSUED AN ORDER ON THIS; IS THAT CORRECT?
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MR. JACOBS:

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THE COURT:

YOU HAD.
SO EVEN AS TO THE PRELIMINARY

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INJUNCTION PHASE MATERIALS, YOUR POSITION IS THAT

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SAMSUNG HAS NOT COMPLIED WITH MY ORDER ON THAT?

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MR. JACOBS:

THAT'S CORRECT.

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I THINK TO BE FAIR TO THE SAMSUNG SIDE ON

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THIS, IN THE PRELIMINARY INJUNCTION WE HAD A

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LIMITED TARGET SET OF PRODUCTS AND A LIMITED

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TARGETED SET OF PATENTS.

I HOPE THEY FOCUSED ON

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THAT IN PRODUCING IN RESPONSE TO THE PRELIMINARY

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INJUNCTION.

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BUT NOW WE ARE, OF COURSE IT'S A LARGER

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SET OF PRODUCTS, A LARGER SET OF RIGHTS, PRESUMABLY

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A LARGER SET OF DESIGNERS.

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THE COURT:
FORTH.

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MR. JACOBS:

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THE COURT:

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LARGER SET OF FEATURES AND SO

EXACTLY.
AGAIN, I'M JUST GOING THROUGH

THE LIST OF REQUESTS IN YOUR MOTION.

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ON THE SURVEY AND MARKETING DOCUMENTS, SO

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WHAT IS THE STATUS OF THAT PRODUCTION?

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THIS HAS BEEN A MOVING TARGET AS YOU MOVE THROUGH

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THE MOTION PRACTICE, BUT WHERE DO THINGS STAND

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TODAY?

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MR. JACOBS:

I SUSPECT

WE HAVE GOTTEN SOME SURVEY
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DOCUMENTS, QUITE INTERESTING SURVEY DOCUMENTS, BUT

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WE HAVE A LOT OF REASON TO BELIEVE THEY ARE NOT

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DONE YET AND I THINK THEY HAVEN'T REPRESENTED THAT

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THEY ARE DONE.

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THE COURT:

ALL RIGHT.

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AND AS BETWEEN THESE FOUR MAJOR

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CATEGORIES OF REQUESTS THAT YOU'VE IDENTIFIED, YOU

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BROUGHT UP THE ISSUE OF SEQUENCING.

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IS THERE ANY KIND OF RESOLUTION YOU MIGHT

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REACH ABOUT WHAT YOU NEED SOONER RATHER THAN LATER?

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LATER ISN'T VERY LATE GIVEN THE SCHEDULE JUDGE KOH

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SET.

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ARE THERE PARTICULAR CATEGORIES THAT ARE
MOST CRITICAL?
MR. JACOBS:

I THINK THE ONLY HONEST

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ANSWER, YOUR HONOR, THAT I CAN GIVE YOU IS THAT WE

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HONED IT DOWN FOR PURPOSES OF THIS MOTION.

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THESE ARE -- WE CHARACTERIZE IT AS SUCH AND

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PREPARING FOR THE HEARING I THOUGHT THROUGH THAT

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QUESTION AGAIN, ARE THESE REALLY CORE DOCUMENTS?

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ARE THESE THE, TO USE A PHRASE I RATHER LIKE, THE

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NUGGET OF THE CASE?

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AND WITH RESPECT TO, JUST TO CLICK

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THROUGH THEM, WITH RESPECT TO SOURCE CODE, ALTHOUGH

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ANDROID IS PROBABLY AVAILABLE, SAMSUNG IS NOT
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STIPULATING THAT ANDROID IS THE RELEVANT UNIVERSE

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OF CODE AND THEY HAVE THEIR OWN SKIN ON TOP OF

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ANDROID PHONES.

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THE COURT:

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MR. JACOBS:

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I SEE.
SO YOU SEE WHERE THIS IS

GOING.

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THE COURT:

YES.

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SO AT LEAST AS OF TODAY, THE

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MODIFICATIONS OR IMPLEMENTATION OF ANDROID THAT

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SAMSUNG HAS DEPLOYED IS IN PLAY IN THIS CASE AND SO

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THE PUBLICLY AVAILABLE ANDROID SOURCE IS

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INSUFFICIENT, FROM YOUR PERSPECTIVE.

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MR. JACOBS:

EXACTLY.

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TO BE SLIGHTLY MORE PRECISE, THERE'S A

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TOUCHWIZ SAMSUNG USER INTERFACE THAT SAMSUNG

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DEVELOPED AND TOUCHWIZ IS AN IMPORTANT COMPONENT OF

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THE CODE WE SEEK.

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SIMILARLY, WITH DESIGN HISTORY WE HAVE AN

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EARLY PRODUCTION OF SOME DOCUMENTS THAT GO TO SOME

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OF OUR COPYING CASE.

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A LOT MORE THERE.

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BUT WE BELIEVE THAT THERE IS

WE INFER THAT THERE'S A LOT MORE THERE BY

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LOOKING AT THE SIMILARITY OF THE PRODUCTS, BUT WE

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BELIEVE BASED ON SOME OF THE EVIDENCE WE'VE

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RECEIVED THAT THERE'S A LOT MORE THERE AS WELL.
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THE COURT:

SO ACROSS THESE FOUR

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CATEGORIES, ARE ANY SPECIFIC SUBCATEGORIES OR TYPES

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OF DOCUMENTS WITHIN THE CATEGORIES THAT SAMSUNG

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JUST TOLD YOU, LOOK, WE DON'T THINK YOU NEED TO

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PRODUCE THEM, OR IS THE ISSUE SPEED AND

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SUFFICIENCY?

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MR. JACOBS:

SPEED AND SUFFICIENCY,

YOUR HONOR.
THE COURT:

ALL RIGHT.

WELL, BEFORE WE TURN TO ANY OF THE

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SAMSUNG ISSUES, ANY OTHER POINTS YOU WANT TO MAKE

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IN YOUR MOTION?

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I WOULD LIKE TO HEAR FROM SAMSUNG, OF
COURSE, BUT I THINK IT'S EASIEST TO STICK TO THIS.
MR. JACOBS:

THE TOUGHEST ISSUE ON OUR

MOTION IS EXACTLY WHAT TIME.
AND I WOULD LOVE TO BE ABLE TO SAY WE

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COULD GIVE THEM AN EXTRA WEEK OR AN EXTRA TWO WEEKS

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FROM WHAT WE ARE ASKING FOR, BUT I FEAR THAT IF WE

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DON'T GET AN ORDER TO DO IT AS QUICKLY AS OBVIOUSLY

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POSSIBLE, IT'S GOING TO HAUNT US AS WE CAREEN

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TOWARD THE DISCOVERY CUTOFF.

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THE COURT:

I DON'T MEAN TO QUIBBLE, BUT

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I TAKE SAMSUNG AT THEIR WORD THAT THEY ARE ACTING

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AS QUICKLY AS POSSIBLE.
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THE ISSUE SEEMS TO ME AS IF THEY'RE AT

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THEIR LIMITS.

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ARE YOU LOOKING FOR DATES CERTAIN

FROM THE COURT?

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MR. JACOBS:

OH, YES.

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I THINK THAT THE -- WHAT WE HAVE SEEN

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WHEN WE HAVE SOUGHT PRODUCTION FROM SAMSUNG, WHEN

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THE COURT SETS A DATE, THEY DO THEIR BEST TO

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COMPLY.

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SO YOU WILL RECALL THAT IN THE

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PRELIMINARY INJUNCTION PHASE ORDER THAT YOU ISSUED

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YOU SAID FRIDAY BEFORE THE HEARING, AND I THINK

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THEY REALLY TRIED.

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THE WEEKEND AND EVEN ON MONDAY BECAUSE OF SOME

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TECHNICAL GLITCHES, BUT WE BELIEVE THEY RESPOND TO

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COURT ORDERS.

IT TURNED OUT IT CAME IN OVER

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THE COURT:

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MR. JACOBS:

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THE COURT:

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MS. MAROULIS?

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MS. MAROULIS:

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ALL RIGHT.
THANK YOU, YOUR HONOR.
THANK YOU, MR. JACOBS.

GOOD AFTERNOON,

YOUR HONOR.

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THE COURT:

GOOD AFTERNOON.

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MS. MAROULIS:

JUST TO FOCUS ON THE MAIN

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POINT OF THE APPLE MOTION WHICH IS THE TIMING OF

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THE PRODUCTION, AS YOU SAW FROM OUR PAPERS AND AS
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APPLE KNOWS FROM MULTIPLE MEET AND CONFERS, WE ARE

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COMMITTED TO PRODUCING VIRTUALLY ALL OF THESE

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DOCUMENTS AROUND JANUARY 6TH.

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THEY MAY HAVE WANTED IT EARLIER BUT WE

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CANNOT MAKE IT EARLIER.

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THAT REQUIRES US TO DO IT EARLIER, WE WOULD HAVE TO

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SEEK SOME KIND OF RELIEF FROM THAT ORDER.

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AND IF THERE'S AN ORDER

THE COMBINATION OF ISSUES, INCLUDING THE
NUMBER OF CUSTODIANS -THE COURT:

I HAVEN'T EVEN ISSUED THE

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ORDER AND YOU ARE ALREADY TELLING ME YOU ARE GOING

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TO SEEK RELIEF.

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MS. MAROULIS:

THIS IS BECAUSE APPLE

REPRESENTED THEY NEED THIS NOW.
I THINK ORIGINALLY THEY ASKED FOR

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DECEMBER 15TH, IN THE MOTION PAPERS THEY SAY

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DECEMBER 23RD.

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AND IT'S JUST NOT VIABLE.

WE SUBMITTED DECLARATIONS FROM OUR TEAM

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MEMBERS AND FROM SAMSUNG ABOUT THE FACT THAT THAT'S

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NOT GOING TO HAPPEN.

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AND WE ARE TRYING VERY HARD TO WORK WITH

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THAT BOTH IN TERMS OF MEET AND CONFERS WITH THE

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PRODUCTION OBLIGATIONS TO MOVE THE CASE ALONG

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BECAUSE WE UNDERSTAND THAT'S THE COURT ORDER TO US

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FROM JUDGE KOH.
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BUT REALISTICALLY WE STARTED PRODUCING

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ALL THE CATEGORIES OF DOCUMENTS AND WE TOLD THEM WE

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WILL COMPLETE THEM SOON.

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PERSPECTIVE THIS MOTION WAS NOT NECESSARY AT ALL.

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THE COURT:

SO FROM SAMSUNG'S

WOULD YOU AGREE MS. MAROULIS,

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THEN, THAT THE ISSUE BEFORE ME NOW ISN'T YOUR

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WILLINGNESS TO PRODUCE THESE DOCUMENTS IT'S UNDER

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WHAT SCHEDULE AND UNDER WHAT DEMANDS APPLE IS

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INSISTING UPON, THAT IS REALLY THE CRUX OF THE

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DEBATE?

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MS. MAROULIS:

THAT IS THE CRUX OF THAT.

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THERE'S A COUPLE EXCEPTIONS, AND THAT HAS

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TO DO WITH APPLE MOVED ON SOME REQUESTS THAT WERE

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NEVER MET AND CONFERRED ON IN THE TECHNICAL

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DOCUMENT SECTION.

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FOR EXAMPLE, THEY LIST A NUMBER OF

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REQUESTS WE COVER IN THE CHAN DECLARATION,

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PARAGRAPHS 21 TO 22, THAT BROADLY TAKE A SWIPE AT

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TECHNICAL DOCUMENTS.

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OTHER THAN SOURCE CODE, THOSE THINGS WERE
NOT DISCUSSED AMONG THE PARTIES.

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SO SOURCE CODE, WE OFFERED THEM FOR

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INSPECTION.

AND THEY'RE GOING TO BE INSPECTING

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THAT.

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EACH ONE OF THESE, I THINK IT'S 17 DIFFERENT

BUT I CANNOT MAKE A REPRESENTATION AS TO

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REQUESTS THAT HAS NOT BEEN VENTILATED YET.

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THE SECOND POINT WE WANTED TO MAKE WAS TO

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THE EXTENT THE COURT IS INCLINED TO SET A DATE BY

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WHICH SAMSUNG NEEDS TO COMPLETE ITS PRODUCTION, THE

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SAME SHOULD APPLY TO APPLE.

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IN OUR MOTION WE EXPLAINED THE DIFFERENT

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CATEGORIES, THE SAME CATEGORIES IN THEIR MOTION

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THAT APPLE HAS NOT ITSELF MET.

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FOR EXAMPLE, THEY HAVE NOT PRODUCED ANY

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SOURCE CODE.

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MOTION TO COMPEL TWO PAGES OF SOURCE CODE THAT

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RELATES TO PRIOR ART.

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THEY OFFERED YESTERDAY TO FILE A

THE COURT:

WOULD YOU BE SO KIND AS TO

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REFRESH ME IN THIS CASE.

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HERE, YOU JUST HEARD ONE OF THEM.

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MAKING SOURCE CODE AVAILABLE THROUGH SOME TYPE OF

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LIVE ACCESS, LAPTOP PRODUCTION?

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MS. MAROULIS:

I HAVE A NUMBER OF THESE
ARE YOU ALL

IT'S FOR INSPECTION,

YOUR HONOR, NOT IN ESCROW BUT IN COUNSEL'S OFFICES.

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THE COURT:

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AND I KNOW WE HAD THE DISCUSSION AROUND

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RIGHT.

OKAY.

THAT BEFORE, SO I APPRECIATE YOU REMINDING ME.

23

MS. MAROULIS:

24

SO WITH RESPECT TO THE FOURTH CATEGORY AT

25

ISSUE.

YES, YOUR HONOR.

SOURCE CODE DESIGN DOCUMENTS, SURVEY
18

1

DOCUMENTS AND DOCUMENTS THAT REFLECT A SEARCH BASED

2

ON THE TERM "APPLE" FOR US AND "SAMSUNG" FOR THEM,

3

THEY HAVE NOT COMPLETED THEIR PRODUCTION.

4

SO TO THE EXTENT THERE'S A DATE,

5

JANUARY 6TH OR JANUARY 10TH, IT HAS TO BE

6

RECIPROCAL.

7

WE --

8

THE COURT:

9
10

AND I TAKE YOUR POINT AND

SAUCE FOR THE GOOSE IS SAUCE FOR THE GANDER, THE
ARGUMENT IS USUALLY A GOOD ONE.

11

IS IT YOUR RECOMMENDATION ARGUMENT,

12

POSITION, HOWEVER YOU WANT TO FRAME IT TO THE

13

COURT, THAT IF I'M GOING TO APPLY A SINGLE STANDARD

14

TO BOTH PARTIES THAT THE BETTER STANDARD IS TO SET

15

A DATE FURTHER OUT AS OPPOSED TO AN EARLIER DATE?

16
17
18

IN OTHER WORDS, AS BETWEEN THOSE TWO
WHICH POSITION DO YOU THINK IS MORE APPROPRIATE?
MS. MAROULIS:

YOUR HONOR, I THINK IT

19

WOULD BE MORE REALISTIC TO SET IT FOR MID-JANUARY,

20

WOULD BE MORE REALISTIC WITH SOME CATEGORIES OF

21

DOCUMENTS BEING PRIORITIZED FOR DEPOSITIONS.

22

FOR EXAMPLE, WE'VE WORKED SUCCESSFULLY

23

WITH APPLE FOR THE INVENTION PROSECUTING ATTORNEY

24

DEPOSITIONS.

25

WHERE WE PRODUCED DOCUMENTS SEVERAL DAYS BEFORE

WE JUST COMPLETED ABOUT 50 OF THEM

19

1
2

DEPOSITIONS.
SO EVEN IF THERE'S A DEADLINE THAT'S

3

FURTHER OUT IN JANUARY, WE CAN CERTAINLY EXPEDITE

4

SOME CATEGORIES OF DOCUMENTS TARGETED TO THE

5

SPECIFIC DEPOSITIONS.

6

THE COURT:

SO ARE THERE PARTICULAR -- I

7

MEAN, THE CONCERN I HAD IS JUST THE SCHEDULE IS

8

MIGHTY TIGHT.

9

MID-JANUARY WOULD SUGGEST WE LOSE THE FIRST TWO

10
11

AND, YOU KNOW, EVEN A DEADLINE IN

WEEKS OF THE MONTH FOR DEPOSITION PURPOSES.
ARE THERE PARTICULAR INDIVIDUALS OR

12

CATEGORIES RELATING TO INDIVIDUALS THAT I MIGHT

13

PRIORITIZE IN YOUR VIEW?

14

THOSE FIRST TWO WEEKS.

15

MS. MAROULIS:

SO WE TAKE ADVANTAGE OF

THERE WERE A COUPLE

16

DEPOSITION DATES OFFERED TO APPLE.

17

DECEMBER 30TH AND ANOTHER ONE IS JANUARY 12TH.

18

ONE IS

SO FOR THOSE CUSTODIANS WE WILL

19

PRIORITIZE AND PRODUCE THEIR DOCUMENTS, IF THEY

20

HAVEN'T ALREADY BEEN PRODUCED, NO LATER THAN THREE

21

DAYS BEFORE THE DEPOSITION LIKE WE HAVE DONE WITH

22

THE INVENTOR DEPOSITIONS FOR BOTH SIDES.

23

AND TO THE EXTENT YOUR HONOR NEEDS

24

EXAMPLES OF WHY WE BELIEVE APPLE'S PRODUCTION IS

25

NOT COMPLETE, IT'S LISTED IN THE PAPERS.
20

1

BUT FOR EXAMPLE, THEY ARE PRESSING FOR

2

THE SURVEYS.

3

SURVEYS TOTAL THAT WE COULD FIND IN THE PRODUCTION.

4

AND CLEARLY ORGANIZATIONS SUCH AS APPLE PROBABLY

5

HAS AN ENTIRE CONSUMER SURVEY DEPARTMENT.

6

AND APPLE ITSELF PRODUCED ONLY FIVE

THE COURT:

WELL, I WILL GET TO APPLE'S

7

PRODUCTION IN A MINUTE.

8

YOUR PRODUCTION, JUST SO I CAN KEEP ALL OF THIS

9

STRAIGHT.

10

I STILL WANT TO FOCUS ON

IN YOUR ORGANIZATION, IS THERE A SIMILAR

11

ORGANIZATION THAT'S RESPONSIBLE?

12

MS. MAROULIS:

WE HAVE SEVERAL CUSTODIANS

13

WHO ARE PRIMARILY RESPONSIBLE AND WE SEARCHED THEIR

14

FILES, AND WE PRODUCED SOME OF THE DOCUMENTS.

15
16
17

I DON'T KNOW IF IT'S ALL, I WILL NEED IT
TO CONFER -THE COURT:

YOU ARE NOT OBJECTING TO

18

MAKING THEM A COMPLETE PRODUCTION, YOUR POINT IS

19

IT'S IN PROCESS?

20

MS. MAROULIS:

IT'S IN THE PROCESS.

21

THERE'S ONE LIMITATION WE'VE ASKED IT BE

22

FOCUSED ON THE PRODUCTS SOLD IN THE U.S. THAT ARE

23

ACCUSED IN THE COMPLAINT AS OPPOSED TO PRODUCTS

24

SOLD IN A NETHERLANDS OR CHINA OR SOMEWHERE ELSE.

25

BUT FOR THE U.S. WE DO NOT HAVE AN
21

1

OBJECTION.

2

THE COURT:

ON THE ISSUE OF THE E-MAIL,

3

AN ISSUE OF SOME INTEREST TO ME THESE DAYS, THE

4

QUESTION I HAVE IS:

5

YOU TO PAW THROUGH A NUMBER OF CUSTODIANS E-MAILS

6

LOOKING FOR REFERENCES TO APPLE.

7

ALL REACHED SOME CONSENSUS OR AGREEMENT ON WHO

8

EXACTLY YOU NEED TO BE RESEARCHING E-MAILS FOR?

9

SO THEY ESSENTIALLY ARE ASKING

MS. MAROULIS:

I ASSUME YOU HAVE

WELL, THEY WANT US TO

10

SEARCH EVERY SINGLE CUSTODIAN FOR THE TERM "APPLE."

11

WE'VE GENERALLY AGREED TO IT, BUT SUBJECT

12

TO THE CONDITION.

13

FOR SAMSUNG, AND THEY HAVEN'T YET COMMITTED TO

14

THAT.

15

ONE, THEY WANTED US TO SEARCH

AND TWO, UNFORTUNATELY "APPLE" IS A MORE

16

COMMON TERM THAN "SAMSUNG."

17

PEOPLE BUYING FOOD FOR DINNER, YOU ALSO GET

18

QUICKTIME, ITUNE FILES.

19

SO IN ADDITION TO

SO IN SEARCHING CUSTODIAN FILES, WE'RE

20

GETTING A LOT OF FALSE HITS.

WE ARE TRYING TO

21

FILTER IT OUT BUT THAT'S ONE OF THE THINGS SLOWING

22

DOWN THE PRODUCTION.

23

THE COURT:

I JUST WANT TO MAKE SURE,

24

THERE WAS ONE OTHER QUESTION I HAD FOR YOU AND THEN

25

WE'LL TURN TO YOUR MOTION AFTER REBUTTAL ON THIS
22

1

ARGUMENT TO CLOSE THIS OUT.

2

THE ADDITIONAL QUESTION I HAD CONCERNS

3

THE SOURCE CODE WHEN IT WAS FIRST AVAILABLE TO

4

APPLE.

5

YOUR DECLARATION SEEMS TO SUGGEST OR

6

IMPLY THAT THERE HAS BEEN SOURCE CODE AVAILABLE TO

7

THEIR FOLKS FOR SOME TIME, AM I READING THOSE RIGHT

8

OR IS THE THAT NOT TRUE?

9

MS. MAROULIS:

10

YES, YOUR HONOR.

WE MADE REPRESENTATIONS IN OUR INITIAL

11

PATENT RULES DISCLOSURES UNDER 3-4 THAT THE SOURCE

12

CODE WILL BE AVAILABLE TO APPLE UPON THE PROTECTIVE

13

ORDER CONCLUSION.

14

WE'VE HAD AN UNUSUALLY DIFFICULT TIME

15

HERE NEGOTIATING THE PROTECTIVE ORDER BETWEEN THE

16

SIDES AND WE HAVE BEEN WAITING FOR THE PROTECTIVE

17

ORDER.

18

YET COMPLETE WE STARTED OFFERING SOURCE CODE WHILE

19

IT'S STILL BEING NEGOTIATED.

20

BUT SEEING HOW THE PROTECTIVE ORDER IS NOT

THE COURT:

SINCE YOU BROUGHT UP THE

21

PROTECTIVE ORDER, ARE YOU SAYING -- I WILL

22

APOLOGIZE WITH ANY PROBLEMS WITH THE COURT.

23

HAVE NOT ALL SUBMITTED A PROTECTIVE ORDER TO ME.

YOU

24

MS. MAROULIS:

NO, YOUR HONOR.

25

WE HAVE BEEN OPERATING UNDER THE INTERIM
23

1

PROTECTIVE ORDER AND WE GENERALLY PRODUCED VERY

2

HIGHLY CONFIDENTIAL INFORMATION PURSUANT TO IT.

3

SOURCE CODE IS A BIT DIFFERENT, SO WE

4

NEGOTIATED A FAIRLY ROBUST PROVISION UNDER WHICH

5

BOTH SIDES WILL BE PRODUCING TO EACH OTHER CODE.

6

THERE HAS BEEN SOME SOURCE CODE PRODUCED

7

BY SAMSUNG IN CONNECTION TO THE INVENTOR

8

DEPOSITIONS, SO THAT'S OLD, HISTORIC SOURCE CODE,

9

SO NOT THE SAME CONFIDENTIALITY ISSUES NECESSARILY

10

IN PLAY.

11

THE COURT:

SO IT WOULD SEEM TO ME THAT

12

GETTING THAT PROTECTIVE ORDER ISSUE RESOLVED IS ONE

13

OF THE HIGHEST PRIORITIES IF WE ARE TALKING ABOUT

14

CODE GETTING PRODUCED IN ADVANCE OF DEPOSITIONS; IS

15

THAT FAIR?

16

MS. MAROULIS:

IT IS, YOUR HONOR.

17

IT'S SUBJECT OF THE NEGOTIATIONS.

18

SURMISED FROM OUR PAPERS WE HAVE A WEEKLY MEET AND

19

CONFER CALL THAT LASTS BETWEEN THREE AND SIX HOURS.

20

IT'S BEING DISCUSSED VERY ACTIVELY AND WE ARE VERY

21

CLOSE.

YOU PROBABLY

22

THE COURT:

ALL RIGHT.

23

THOSE ARE THE QUESTIONS I HAD.

UNLESS

24

YOU HAVE ANYTHING FURTHER, I WILL HEAR FROM

25

MR. JACOBS AND WE WILL COME BACK AND TALK ABOUT
24

1

YOUR NEGOTIATIONS.

2

ANY REBUTTAL, MR. JACOBS?

3

MR. JACOBS:

4

I THINK THERE'S A FALSE SYMMETRY,

YES, YOUR HONOR.

5

YOUR HONOR, BEING ADVANCED.

6

PRODUCTIONS IN THE PRELIMINARY INJUNCTION PHASE.

7

WE HAVE MADE ENORMOUS

THEY HAVE MADE A TINY PRODUCTION.

THIS

8

IS A PROBLEM OF SAMSUNG'S OWN MAKING FOR NOT HAVING

9

GOTTEN TO IT AND FOR HAVING ENGAGED IN DILATORY

10
11

TACTICS.
WE SAW AN EXAMPLE OF IT JUST NOW.

12

THERE'S NO EXCUSE FOR US NOT HAVING GOTTEN THEIR

13

SOURCE CODE UNDER THE INTERIM PROTECTIVE ORDER.

14

AND THE FACT THAT THERE'S A COMPLEX

15

PROTECTIVE ORDER GOING ON, COMPLEX NEGOTIATION IS

16

NO EXCUSE FOR THAT ONCE WE SAID WE REALLY NEED IT.

17

MAYBE WHILE WE WERE TALKING EARLIER, BUT ONCE WE

18

SAY WE NEED IT, WE NEED IT.

19

AS FOR APPLE'S PRODUCTION, THERE'S A

20

MESSAGE FROM WILMER HALE TO SAMSUNG DATED

21

DECEMBER 6TH THAT SAYS, THE SOURCE CODE WE ARE

22

PREPARED TO PRODUCE IT AND HERE'S HOW WE ARE GOING

23

TO PRODUCE IT, AND IT'S ALL OUT THERE FOR THEM.

24
25

SO WE HAVE, THIS IS THE SOURCE CODE,
THAT'S THE CORRESPONDING SOURCE CODE, THE
25

1

DEFENDER'S SOURCE CODE.

2

THE COURT:

JUST SO THAT I UNDERSTAND

3

YOUR POINT COMPLETELY, ARE YOU TELLING ME THAT

4

BECAUSE OF THIS PROTECTIVE ORDER ISSUE, YOU HAVE

5

NOT HAD ANY ACCESS TO SOURCE CODE FROM SAMSUNG?

6

I'M STILL UNCLEAR ON THAT.

7

MR. JACOBS:

8

THESE FILES THAT WE WERE BOTH REFERRING

9

ESSENTIALLY, THAT'S CORRECT.

TO OF HISTORICAL NATURE.

BUT IN TERMS OF TOUCHWIZ,

10

IN TERMS OF THE CURRENT SAMSUNG CELL PHONE

11

OPERATING SYSTEM, WE HAVE NOT HAD ACCESS.

12
13

THE COURT:

THE TOUCHWIZ, IS THAT THE UI

LAYER?

14

MR. JACOBS:

EXACTLY.

15

AND I DON'T MEAN BY THAT TO BE LIMITING,

16

I THINK OUR REQUESTS SPEAK FOR THEMSELVES AND

17

THERE'S BEEN PLENTY, YOUR HONOR, OF MEET AND

18

CONFER.

19

IF ANYTHING WAS CONVEYED TO YOU IN THE

20

PILE OF PAPERS YOU GOT, IT'S BEEN THERE'S LOTS OF

21

DISCUSSIONS, LOTS OF EFFORTS TO WORK IT OUT.

22

WE REACHED OUR LIMIT IN TWO WAYS.

WE

23

REACHED OUR TIME LIMIT, WE JUST HAVE TO GET THIS

24

STUFF QUICKLY.

25

STARTED MEASURING WHAT WE HAD DONE AS AGAINST WHAT

AND WE REACHED OUR LIMIT WHERE WE

26

1
2
3
4

SAMSUNG HAD DONE.
AND THAT ASYMMETRY JUST STARTED TO JUMP
OUT AT ALL OF US.
THE COURT:

I CONFESS I HAVE NOT REVIEWED

5

THE INTERIM PROTECTIVE ORDER RECENTLY, BUT I

6

BELIEVE UNDER THE TERMS OF THAT ORDER THERE'S A

7

PROVISION FOR SOURCE CODE.

8

MR. JACOBS:

9

THE COURT:

EXACTLY.
OKAY.

10

ANYTHING FURTHER?

11

MR. JACOBS:

ALL RIGHT.

12
13

SO THAT'S THE ESSENCE OF IT,

YOUR HONOR.
IN TERMS OF TIME, IF WE -- IF THIS MOTION

14

WERE NOT NECESSITATED BY A PATTERN THAT WE SAW OF

15

COMMITMENTS, BUT NOT REAL HARD COMMITMENTS, THEN WE

16

WOULD HAVE MORE SYMPATHY FOR SAMSUNG.

17

WE DO KNOW THERE ARE ISSUES COMING BACK

18

OUR WE WAY, BUT WE THINK WE HAVE MOVED HEAVEN AND

19

EARTH TO MEET TIME DEADLINES AND WE DON'T SEE THAT

20

ON THEIR SIDE.

21

THE COURT:

22

CUSTODIANS ARE AT ISSUE HERE?

23

MR. JACOBS:

IN THE E-MAIL, HOW MANY

I THINK WE HAD A GOOD

24

DISCUSSION ABOUT CUSTODIANS AND I DON'T KNOW THE

25

ANSWER BUT I DON'T THINK THAT'S THE NATURE OF THE
27

1

DISPUTE.

I KNOW YOU'RE INTERESTED IN IT FOR OTHER

2

REASONS, BUT I DON'T THINK --

3

THE COURT:

WE ARE TALKING ABOUT A DOZEN,

4

A THOUSAND, YOU ALL HAD A LOT OF FOLKS WHO KNOW

5

STUFF.

6
7
8
9

MR. HUNG:

IT'S CERTAINLY IN THE DOZENS,

I BELIEVE IT'S THE HIGH DOZENS; IS THAT FAIR?
MS. MAROULIS:

I THINK IT WOULD BE AROUND

50 PROBABLY.

10

THE COURT:

SOMEWHERE IN THAT RANGE?

11

ALL RIGHT.

IS THERE ANYTHING ELSE YOU

12
13
14
15

WANT TO ADD, MR. JACOBS?
MR. JACOBS:

WELL, THERE'S SOME SPECIFIC

ISSUES THAT SAMSUNG RAISED.
I THINK THEY ARE WELL BRIEFED AND I WOULD

16

BE SURPRISED IF YOU WANTED TO HEAR VERY GRANULAR

17

ARGUMENT ABOUT INDIVIDUAL ISSUES.

18

BUT LIMITING TO U.S. PRODUCTS, WHEN THE

19

PRODUCTS ARE SOLD ON AN INTERNATIONAL BASIS AND

20

MAYBE JUST LABELED AND TAILORED FOR A PARTICULAR

21

MARKET, THAT'S UNACCEPTABLE.

22

CARVE OUT FROM SAMSUNG'S DEVELOPMENT ACTIVITY.

23

THAT WOULD BE A HUGE

THIS PRODUCT SHIPPED IN THE UNITED STATES

24

MAY BE A VERSION OF THIS PRODUCT THAT WAS SHIPPED

25

IN KOREA OR AUSTRALIA OR THE NETHERLANDS.

THE
28

1

COPYING MAY HAVE BEEN DONE FOR THE PRODUCT IN MY

2

LEFT HAND AND THEN REFLECTED IN THE COPY IN MY

3

RIGHT HAND.

4

THE COURT:

IF YOUR THEORY IS THAT

5

THERE'S A SUBSTANTIAL RELATIONSHIP THAT JUSTIFIES

6

DISCOVERY WITH RESPECT TO EACH OF THOSE PRODUCT

7

VERSIONS, DO YOU NEED TO HAVE DISCOVERY AS TO ALL

8

THOSE PRODUCT VERSIONS IN ORDER TO PROVE UP YOUR

9

THEORY?

10

DO YOU SEE WHAT I'M GETTING AT?
IT SEEMS TO ME IF WHAT YOU ARE SAYING IS,

11

THERE MAY BE A DUTCH VERSION OF THIS PRODUCT THAT

12

SHEDS LIGHT ON ISSUES CONCERNING THE U.S. VERSION,

13

OF COURSE IT'S THE U.S. VERSION THAT'S ACCUSED,

14

RIGHT?

15

I'M STRUGGLING WITH THAT.

16

WHAT DO YOU NEED THE DUTCH VERSION FOR?

MR. JACOBS:

WELL, IF THE DUTCH VERSION

17

WAS AFTER THE U.S. VERSION THEN NO NEW COPYING

18

WOULD HAVE SHOWN UP IN THE U.S. VERSION BY VIRTUE

19

OF BEING DERIVED FROM THE DITCH VERSION.

20

BUT IF THE KOREAN VERSION -- THE U.S. IS

21

NOT THE FIRST MARKET TO GET THE PRODUCTS WHEN

22

SAMSUNG RELEASES.

23

IS THE ONE THAT SAMSUNG WAS DEVELOPING OR TESTING

24

ON ITS CONSUMERS TO SEE HOW THEY -- WHAT APPLE

25

FEATURES THEY WERE MISSING, LET'S SAY, WHICH IS THE

SO IF YOU SAY THE KOREAN VERSION

29

1

KIND OF THING THAT COULD SHOW UP IN THE DOCUMENT,

2

BELIEVE ME, THEN WE WOULD NEED THE DOCUMENTATION OF

3

HOW THE KOREAN VERSION WAS DEVELOPED.

4

THE COURT:

IS THERE ANY KIND OF

5

AGREEMENT WE COULD FORGE HERE THAT FOR CERTAIN

6

PHONES OR TABLETS, THE U.S. WAS THE PRIMARY.

7

OR, YOU KNOW, IN OTHER WORDS, DOES THIS

8

ISSUE IMPLICATE THE ENTIRE SET OF ACCUSED PRODUCTS

9

OR THERE ARE SPECIFIC PRODUCTS OR VERSIONS THAT ARE

10

MORE PARTICULARLY IMPACTED BY THIS REALITY THAT

11

AMERICA DOESN'T ALWAYS GET THE FIRST VERSION OF THE

12

PRODUCT.

13

MR. JACOBS:

I THINK IT'S ALMOST ALWAYS

14

THE CASE THAT THE UNITED STATES HAS NOT BEEN THE

15

FIRST.

16
17
18

THE COURT:

WE ARE ALWAYS SECOND OR

THIRD.
MR. JACOBS:

I'M JUST DOING A MENTAL

19

CHECK LIST, YOUR HONOR, THIS ISN'T A REPRESENTATION

20

BUT A MENTAL CHECK LIST OF WHAT WE'VE SEEN AND HOW

21

THESE PRODUCTS ROLL OUT.

22

ON THE OTHER HAND, I'D BE SURPRISED IF

23

ZIMBABWE WAS THE FIRST MARKET.

24

THE COURT:

25

KOREA AND EUROPE ARE

OBVIOUSLY VERY IMPORTANT MARKETS.
30

1

MR. JACOBS:

KOREA, JAPAN, AUSTRALIA,

2

EUROPE ARE CRITICAL.

3

THE COURT:

4

THANK YOU, MR. JACOBS.

5

ALL RIGHT.

6

MS. MAROULIS, LET'S TURN TO

I WOULD LIKE TO START WITH THE MOTION
WITH RESPECT TO DOCUMENTS AND ANSWERS.

9

MS. MAROULIS:

10
11

ALL RIGHT.

YOUR MOTIONS.

7
8

OKAY.

YES, YOUR HONOR.

MAY I MAKE ONE BRIEF POINT ABOUT
MR. JACOBS'S REBUTTAL?

12

THE COURT:

13

MS. MAROULIS:

NEITHER SIDE HAS PRODUCED

14

SOURCE CODE TO EACH OTHER, JUST SO IT'S CLEAR.

15

NEITHER SIDE HAS.

16
17

THE COURT:

OTHER THAN THE HISTORICAL

CODE.

18

MS. MAROULIS:

19

SMALL AMOUNTS OF HISTORICAL CODE.

20

BOTH SIDES HAVE PRODUCED

TURNING TO SAMSUNG'S MOTION, THERE WERE

21

THREE DIFFERENT CATEGORIES RAISED IN OUR PAPERS,

22

AND I'M PLEASED TO REPORT THAT ONE OF THEM SEEMS TO

23

HAVE BEEN RESOLVED.

24
25

SO WITH RESPECT TO THE UTILITY DOCUMENTS
THAT WE ASKED FOR IN CONNECTION WITH THE CLAIMS
31

1

CONSTRUCTION, JUST YESTERDAY APPLE SENT US A LETTER

2

SAYING THAT THEY WILL PRODUCE THE SUPERCLOCK AND A

3

MAC CODE THAT WE HAVE BEEN ASKING FOR.

4

AND ASSUMING THAT THE CODE WHEN YOU LOOK

5

AT IT ACTUALLY IS THE CODE THEY REPRESENT IT IS, WE

6

DON'T THINK THE COURT NEEDS TO CONCERN ITSELF WITH

7

THAT.

8
9

THE COURT:

IS THE SUPERCLOCK THE

RELEVANT PORTION OF THE 10.0 CODE OR --

10

MS. MAROULIS:

11

THE COURT:

12
13
14
15

NO, IT'S THE 7.5.

I THOUGHT I WAS WITH YOU, BUT

ALL RIGHT.
MS. MAROULIS:

YES, YOUR HONOR.

IT

APPEARS THAT'S BEEN RESOLVED.
WITH RESPECT TO THE PLEADINGS FROM

16

MOTOROLA AND OTHER PRIOR CASES, AGAIN, THEY'VE

17

STARTED PRODUCING THOSE PLEADINGS TO US BUT WOULD

18

LIKE SOME KIND OF CLARIFICATION FROM THE COURT OR

19

FROM THEM THAT THEY HAVE GIVEN US EVERYTHING.

20

BECAUSE THIS IS A VERY DISCREET SET OF DOCUMENTS

21

AND IT'S EASIER FOR THEM TO TELL US WHETHER THEY

22

PRODUCED IT OR NOT.

23

THE COURT:

AND WHEN YOU SAY YOU WANT

24

EVERYTHING FROM THE MOTOROLA LITIGATION MATERIALS,

25

ARE YOU TALKING ABOUT PLEADINGS, BRIEFS,
32

1
2
3
4
5

TRANSCRIPTS?
MS. MAROULIS:

CORRECT, YOUR HONOR.

IT'S WITH RESPECT TO JUST A COUPLE OF PATENTS,
IT'S NOT EVERYTHING FROM THE LITIGATION.
THE COURT:

YOU ARE JUST LOOKING TO

6

FIGURE OUT WHAT THEY SAID ABOUT THOSE TERMS IN

7

OTHER CASES.

8

MS. MAROULIS:

EXACTLY.

9

AND IN ADDITION TO THAT THEY HAVE

10

REDACTED CERTAIN CONFIDENTIAL INFORMATION OF THIRD

11

PARTIES FROM THAT LITIGATION, BUT WE HAVE AN

12

INTERIM PROTECTIVE ORDER AND THEY HAVE ASKED US TO

13

PRODUCE THIRD PARTY CONFIDENTIAL INFORMATION SUCH

14

AS LICENSES.

15

SO WE BELIEVE IT'S APPROPRIATE FOR THEM

16

TO PRODUCE THAT INFORMATION SUBJECT TO THE HIGHEST

17

LEVEL OF CONFIDENTIALITY OF THE PROTECTIVE ORDER.

18

WITH RESPECT TO THE OTHER CATEGORIES,

19

YOUR HONOR, I THINK MR. JACOBS FAILED TO RAISE IT

20

AS A FOLLOW ON OR VERY DISCREET SET.

21

IT IS A VERY TARGETED MOTION AND THAT IS

22

WHY WE THINK APPLE SHOULD HAVE NO PROBLEM COMPLYING

23

WITH IT BECAUSE WE GAVE THEM A LIST OF THINGS THAT

24

ARE DISCREET BUT CRUCIALLY IMPORTANT TO OUR CASE.

25

AND GIVEN HOW QUICKLY THEY REACTED, FOR
33

1

EXAMPLE WITH THE SOURCE CODE, AFTER WE FILED THE

2

MOTION WE THINK IT SHOULD BE FAIRLY EASY FOR THEM

3

TO COMPLY WITH OUR REQUESTS.

4

SO TURNING TO THE CATEGORY OF THE DESIGN

5

DOCUMENTS, THAT'S THE MAIN AREA OF OUR MOTION,

6

THERE ARE BASICALLY FOUR DIFFERENT THINGS WE ARE

7

ASKING FOR.

8
9
10

ONE IS VERY FAMILIAR TO YOUR HONOR.
RELATES TO THE 035 MOCK UP WHICH IS THE PRODUCT
TYPE FOR THE '889 DESIGN PATENT.

11
12
13
14
15

IT

THE COURT:

YOU ARE LOOKING FOR THE CAD

FILES.
MS. MAROULIS:

WE ARE LOOKING FOR A

VARIETY OF THINGS.
FIRST OF ALL, IT SHOULD BE A REALLY

16

SIMPLE ISSUE, BUT WE ARE ASKING FOR THE RETURN OF

17

OUR WORK PRODUCT PHOTOS.

18

THE COURT:

19

MS. MAROULIS:

20

AS YOUR HONOR RECALLS, ON DECEMBER 2ND

21

YOU WERE ASKED TO RULE ON A MOTION BY APPLE WHEN

22

THEY VIDEO TAPED AN INSPECTION OF ONE OF THE

23

PROTOTYPES WE OFFERED.

24

WORK PRODUCT, AND YOUR HONOR AGREED WITH THAT.

25

THESE ARE THE MEMORY CARDS?
YES, THE MEMORY CARDS.

AND THEY ARGUED THAT IT'S

YOUR HONOR FURTHER SAID THAT THESE ARE
34

1

THE RULES THAT APPLY TO BOTH SIDES.

2

SO UNDER THAT RULING AND IN THE GENERAL,

3

MOTIONS OF WORK PRODUCT WE ASKED FOR THE RETURN OF

4

THAT AND APPLE IS REFUSING.

5

THIS SHOULD BE A VERY SIMPLE THING, THEY

6

NEED TO RETURN US THE MEMORY STICK AND THE PHOTOS.

7

THE COURT:

I HAVE TAKE IT YOU HAVE NOT

8

WITHHELD OR OBJECTED TO ANY OF THEIR ATTENTION FROM

9

THEIR INSPECTION?

10

MS. MAROULIS:

11

THE ONLY TIME WE DID OBJECT WE WERE

12

THAT'S CORRECT.

OVERRULED BY YOUR HONOR SO WE COMPLIED.

13

THAT SHOULD BE A SIMPLE ISSUE.

14

OTHER RELATED ITEMS TO THE 035 MOCK UP,

15

ONE IS WE NEED TO SEARCH FOR HIGHER QUALITY PHOTOS

16

OF THIS PRODUCT.

17

A RELATED ISSUE IS VERY IMPORTANT TO US

18

WHICH IS APPLE CONTINUES TO SHIELD THE 035 MOCK UP

19

WITH A SECRECY IN THE PROTECTION OF THE ORDER.

20
21
22

HOWEVER, THIS IS THE SAME MOCK UP THEY
SUBMITTED TO THE PTO IN THE FORM OF PHOTOS.
THIS IS WHAT THEY BASE THEIR PATENT ON.

23

THIS IS WHY THE PATENT OFFICE GAVE THEM THE PATENT.

24

THEY SUBMITTED PHOTOS TO THE PATENT OFFICE AND THAT

25

WAS PART OF THE FILE HISTORY AND PART OF WHAT THE
35

1
2

PATENT EXAMINER CONSIDERED.
NOW THEIR OBJECTIONS TO DESIGNATING THIS

3

IS THAT OUR PICTURES ARE APPARENTLY MUCH MORE

4

FOCUSED AND CLEAR THAN WHAT THEY SUBMITTED TO THE

5

PATENT OFFICE.

6

BUT WE CAN'T REALLY, SERIOUSLY HAVE THIS

7

CONVERSATION THAT THEY SENT THE BLURRY PICTURES TO

8

THE PATENT OFFICE AND THEREFORE MORE CLEAR, USEFUL

9

EVIDENCE THAT WE COULD SUBMIT TO THE JURY AND TO

10

YOUR HONOR AND TO OTHER PARTS OF THIS CASE, SHOULD

11

BE GRANTED TO US.

12

SO THAT'S AN ISSUE WHERE WE NOT ONLY NEED

13

ADDITIONAL DOCUMENTS FOR THE 035 MOCK UP, BUT WE

14

NEED TO DE-DESIGNATE THE PICTURES THAT WERE OF

15

PUBLIC KNOWLEDGE BECAUSE THEY WERE SUBMITTED IN TO

16

THE PATENT OFFICE IN SOME FORM.

17

THE COURT:

JUST SO I UNDERSTAND YOUR

18

POINT, YOU ARE SAYING THAT THERE ARE ADDITIONAL

19

PICTURES THAT EXIST AND THERE'S NO DISPUTE THE

20

ADDITIONAL PICTURES EXIST; IS THAT RIGHT?

21

MS. MAROULIS:

22

THE PICTURES WE ARE DISCUSSING IS THE

23
24
25

NO, YOUR HONOR.

PICTURES WE TOOK OF THE MOCK UP.
SO THEY PRODUCED THE MOCK UP FOR
INSPECTION, WE TOOK THE PHOTOS AND THE PHOTOS ARE
36

1

ATTACHED TO THE MOTION.

2

AND YOU WILL SEE THAT IN CONTRAST TO THE

3

PHOTOS THAT WERE SENT TO THE PTO, IT HAS MULTIPLE

4

VIEWS OF THE DEVICE AND MUCH MORE GRANULAR AND THAT

5

IS VERY IMPORTANT TO OUR ARGUMENTS.

6

APPLE IS REFUSING TO DE-DESIGNATE THEM

7

EVEN THOUGH THEY ARE OF THE SAME MOCK UP WHICH THEY

8

SUBMITTED TO THE PTO IN THE PHOTO FORM.

9

AND FINALLY, YOUR HONOR, AS MENTIONED

10

WE'RE SEEKING ADDITIONAL CAD FILES, RECORDS, SHOP

11

RECORDS FROM THE MODEL AND ANYTHING ELSE YOU CAN

12

FIND ON THIS 035 MOCK UP BECAUSE IT GOES DIRECTLY

13

TO THE SCOPE OF THEIR PATENT, AND HOW TO INTERPRET

14

IT AND WHETHER THE SIMILARITY OF THE SAMSUNG

15

DEVICE.

16

THE COURT:

DO YOU HAVE ANY AFFIRMATIVE

17

PROOF OR DEMONSTRATION THAT THESE CAD DRAWINGS OR

18

MODEL SHOP RECORDS EXIST AND THEY ARE NOT BEING

19

PRODUCED?

20
21

OR IS YOUR COMPLAINT THAT THEY HAVEN'T
LOOKED IN THE CORRECT PLACES?

22

MS. MAROULIS:

23

MORE IN THE TERMS OF THE SEARCH.

24
25

ALL RIGHT.

I THINK OUR COMPLIANT IS

MOVING ON TO OTHER CATEGORIES

OF DESIGN DOCUMENTS, THERE ARE QUITE A FEW.
37

1

I WOULD LIKE A BETTER PRODUCTION OF

2

SKETCHBOOKS THAT WE ALSO DISCUSSED WITH YOUR HONOR

3

SEVERAL MONTHS AGO.

4

THE COPIES THAT WE RECEIVED WERE SEVERELY

5

REDACTED.

6

SOME REDACTION OF FUTURE PRODUCTS THAT WE SHOULD

7

NOT BE LOOKING AT, WE INTRODUCED OR DEPOSED VARIOUS

8

WITNESSES AND ONE INVENTOR CONCEDED WE HAD ABOUT 50

9

DIFFERENT SKETCHBOOKS AND ONLY SEVEN PAGES FROM

10

AND WHILE WE AGREED THAT THERE SHOULD BE

THAT INDIVIDUAL WERE PRODUCED.

11

AND UNLESS HE WAS WORKING WITH

12

REFRIGERATORS OR SOMETHING COMPLETELY DIFFERENT

13

THERE'S GOT TO BE --

14

THE COURT:

15

FUTURE PRODUCTS?

16
17

WHAT IF HE WAS WORKING ON

WAS HE CLEAR THAT THE 50 BOOKS HE WAS
REFERENCING WERE PAST PRODUCTS?

18

MS. MAROULIS:

IT WAS -- I WAS NOT AT

19

THAT DEPOSITION, BUT MY UNDERSTANDING WAS WITH PAST

20

PRODUCTS.

21

THEN FINALLY THERE'S A CATEGORY THAT I

22

WILL TERM "PRIOR ART" AND I CAN SPEAK DIRECTLY TO

23

IT IF YOUR HONOR WOULD LIKE.

24

TRIO DEVICES --

25

THE COURT:

IT'S SONY DEVICES,

THE RAZOR AND THE PHILIPS?
38

1

MS. MAROULIS:

THE RAZOR AND THE PHILIPS

2

AND BRAINBOX AND APPLE, APPLE CINEMA, THOSE ARE

3

PRETTY SELF EXPLANATORY BECAUSE WE NEED THEM TO

4

SHOW THE INVALIDITY OF APPLE'S PATENTS AND ALSO TO

5

SHOW THE EVOLUTION OF THE DESIGN LANGUAGE THAT

6

WE'RE DISCUSSING IN THIS CASE.

7

THIS IS A BRIEF SUMMARY OF THE PRIOR ART

8

ISSUES.

9

WHICH IS THE TRANSCRIPT FOR THE PRIOR INVENTOR

10

AND WITH RESPECT TO THE VERY LAST CATEGORY

DEPOSITIONS AND PRIOR EMPLOYEE DEPOSITIONS.

11

WE ASKED APPLE TO PRODUCE MANY OF THE

12

TRANSCRIPTS FROM PRIOR LITIGATIONS.

13

DIFFERENT FROM MANY OF THE PATENT CASES BECAUSE IN

14

THE PATENT CASE YOU SAY, OKAY, I WILL PRODUCE YOU

15

TRANSCRIPTS FROM THE SAME PATENT OR FROM SOMETHING

16

SIMILARLY TECHNOLOGICALLY.

17

THIS CASE IS

BECAUSE APPLE PUT AT ISSUE THE LOOK AND

18

FEEL OF THE IPHONE, THE REASON IT'S SUCCESSFUL, WHY

19

PEOPLE BUY IT, HOW IT EVOLVED, THE CONSUMER

20

BEHAVIOR, A LOT WIDER SPECTRUM OF TRANSCRIPTS IS

21

RELEVANT.

22

THE COURT:

AREN'T AT LEAST -- WELL, FOR

23

EXAMPLE, YOU POINT TO THIS MOTION THAT THERE MAY BE

24

ANY NUMBER OF REASONS WHY THE IPHONE IS SUCCESSFUL.

25

ISN'T THAT AN ISSUE IN PRETTY MUCH EVERY
39

1

PATENT CASE INVOLVING THE IPHONE?

2

MS. MAROULIS:

3

THAT'S TRUE AS WELL, BUT

IT ISN'T JUST LIMITED TO THE PATENT CASES.

4

IF THERE'S A FALSE ADVERTISING CASE THERE

5

COULD BE SOME PRODUCTS LIABILITY CASES WHERE

6

FUNCTIONALITY IS DISCUSSED.

7

ARE GOING TO LIMIT IT TO A TECHNOLOGICAL NEXUS.

8

DON'T KNOW HOW TO ASSESS THAT, AND WE WILL ONLY GET

9

THE TRANSCRIPTS THAT DISCUSS THE PATENT --

10

THE COURT:

THAT'S WHY THEY SAY WE
WE

WELL, HAVE YOU ALL TAKEN A

11

LOOK AT THE CASES THAT HAVE BEEN FILED THAT

12

IMPLICATE THESE PRODUCTS AND TAKEN A FIRST CUT AT

13

THE CASES THAT YOU ARE PARTICULARLY INTERESTED?

14

MS. MAROULIS:

WE SUGGESTED TO APPLE THAT

15

THEY PRODUCE TO US A LIST OF, AND THIS WOULD BE

16

RECIPROCAL AS WELL, A LIST OF DEPOSITION

17

TRANSCRIPTS IMPLICATED THERE, BECAUSE IT'S POSSIBLE

18

THE MAJORITY OF CUSTODIANS HAVE NEVER BEEN DEPOSED

19

OR VERY FEW OF THEM HAD BEEN.

20

PROPOSAL.

THEY REJECTED THAT

21

IT IS DIFFICULT TO DETERMINE FOR PUBLIC

22

SEARCH OF PACER AND SIMILAR DATABASES, WHAT IS AT

23

STAKE AND WHAT TECHNOLOGY IS AT STAKE.

24

IMPOSSIBLE TO DO IT VIA PATENT NUMBER SEARCH, BUT

25

NOT THE --

IT'S

40

1

THE COURT:

WELL, I GUESS WHAT I WAS

2

THINKING OF IS WHY NOT JUST LOOK FOR ALL OF THE --

3

THE COMPLAINTS ARE CERTAINLY MATTERS OF PUBLIC

4

RECORD, SO WHY NOT IDENTIFY, YOU KNOW, A UNIVERSE

5

OF APPLE CASES, CASES IN WHICH APPLE IS A DEFENDANT

6

IN WHICH THE PRODUCTS HAVE BEEN ACCUSED OF

7

INFRINGEMENT TO START, AND REVIEW THE COMPLAINTS

8

AND YOU COULD PRETTY QUICKLY UNDERSTAND WHAT

9

PATENTS ARE AT ISSUE AND WHAT FUNCTIONS AND

10

FEATURES WERE BEING PUT IN PLAY BY THOSE CASES;

11

ISN'T THAT ONE WAY OF AT LEAST FOCUSING THE REQUEST

12

A LITTLE BIT?

13
14

MS. MAROULIS:

THAT'S

DEFINITELY ONE OF THE WAYS.

15
16

YES, YOUR HONOR.

THE COURT:
SIDES.

AND THIS WOULD APPLY TO BOTH

I'M JUST BRAIN STORMING.

17

OKAY.

ALL RIGHT.

18

MS. MAROULIS:

SO THIS, IN SHORT, IS THE

19

SUBSTANCE OF OUR MOTION, AND I'M SURE YOUR HONOR

20

HAS SOME SPECIFIC QUESTIONS THAT I'M HAPPY TO

21

ANSWER, BUT I'M MINDFUL OF THE CRIMINAL CALENDAR.

22

THE COURT:

WELL, I THINK WE STILL HAVE A

23

LITTLE BIT OF TIME, SO LET ME HEAR FROM MR. JACOBS

24

OR ONE OF HIS COLLEAGUES THEN I'LL GIVE YOU A

25

CHANCE FOR REBUTTAL ON THIS ISSUE.
41

1
2

MR. JACOBS:

SO LET ME BREAK IT DOWN BY

RELEVANCE AND BY CONFIDENTIALITY.

3

ON THE TRANSCRIPT ISSUE IT'S A RELEVANCE

4

QUESTION.

5

TECHNOLOGICAL NEXUS.

6

WE DREW A REASONABLE CUT, WE SAID

APPLE IS IN LITIGATION FOR A VARIETY OF

7

REASONS.

WITNESSES MIGHT BE DEPOSED FOR EMPLOYMENT

8

CASES, THEY MIGHT BE DEPOSED IN A PRODUCT DEFECT

9

CASES WHERE IT'S JUST REMOTE.

10

WE THINK WE MADE A REASONABLE RELEVANCE

11

CUT THERE AND WE WOULD ASK FOR YOU TO SUPPORT IT.

12

SIMILARLY, WE HAVE -- IN SOME CASES THERE

13

ARE REQUESTS WHILE IF NARROWLY CONSTRUED MIGHT BE

14

THOUGHT OF AS TARGETED, THEY GO OFF INTO

15

IRRELEVANCY.

16

SO FOR EXAMPLE ON THE 035 AND IPAD ON

17

MODEL SHOP ORDERS AND OTHER RECORDS, WELL WHAT DOES

18

"OTHER RECORDS" MEAN?

19

OTHER RECORDS WHEN WE ARE TALKING ABOUT A CLAIM

20

THAT A DESIGN PATENT IS INVALID FOR SOME REASON.

21

I SHOULD PAUSE FOR A MINUTE.

22

ONE OF THE BENEFITS OF THE PRELIMINARY

WHAT'S THE RELEVANCE OF

23

INJUNCTION ORDER THAT WE GOT IS I THINK THE ISSUES

24

HAVE BECOME FOCUSED.

25

WE KNOW HOW TO ASSESS VALIDITY, WE KNOW
42

1

HOW TO ASSESS INFRINGEMENT.

2

BRIEFS OF THE PARTIES, BUT THE JUDGE HAS LAID THAT

3

OUT FOR US.

4

NOT NOW BETWEEN THE

ONE OF THE IMPACTS OF THAT IS I THINK IT

5

HAS NARROWED ON THE VALIDITY SIDE THE SCOPE OF

6

RELEVANT MATERIAL.

7

SO LET'S TAKE THE 035, FOR EXAMPLE, WHICH

8

IS AGAIN KIND OF A MIX OF RELEVANCE AND

9

CONFIDENTIALITY.

10

AS WE NOTED IN OUR BRIEF, THE EXAMINER

11

SPECIFICALLY DISCLAIMED THE RELEVANCE OF THE

12

PHOTOGRAPHS THAT WE SUBMITTED.

13

THEY WANT NOW TO DE-DESIGNATE AS

14

CONFIDENTIAL THE PHOTOGRAPH THEY TOOK OF THE ACTUAL

15

MODEL.

16

WHY?

BECAUSE THEY ARE MORE DETAILED.

WHAT'S THE POSSIBLE RELEVANCE OF MORE

17

DETAILED INFORMATION THAN THAT WHICH WAS SUBMITTED

18

TO THE PATENT OFFICE WHEN THE EXAMINER SAID EVEN

19

THAT WHICH YOU SUBMITTED TO THE PATENT OFFICE IS

20

NOT RELEVANT.

21

WE TAKE THESE MODELS AND THEIR

22

CONFIDENTIALITY VERY SERIOUSLY.

WHEN YOU MIX THE

23

LIMITED RELEVANCE WITH THE CONFIDENTIAL TREATMENT

24

WE GIVE TO THOSE MODELS, THEN IT'S CLEAR THAT THEY

25

SHOULD BE KEEPING THE PHOTOGRAPHS OF THE MODELS AS
43

1

CONFIDENTIAL.

2

SEGWAY FOR A MINUTE, CAN'T QUITE FIGURE

3

OUT WHY THEY NEED THESE DE-DESIGNATED, BECAUSE THEY

4

WANT TO USE THEM IN FOREIGN PROCEEDINGS?

5

SURE THAT'S ALL THAT PERMISSIBLE HERE TO USE THIS

6

VEHICLE FOR THAT, BUT WE COULD WORK SOMETHING OUT

7

SO THAT AS LONG AS THEIR CONFIDENTIALITY IS

8

MAINTAINED, THAT'S OUR CORE INTEREST.

9

TRYING TO BLOCK THEM FROM DEVELOPING THE CASE.

10

I'M NOT

WE ARE NOT

SO ON CLICKING THROUGH THEN, THE LIST TO

11

MAKE SURE I'M COMPLETE, WE HAVE REALLY TAKEN CARE

12

OF A LOT OF THESE THINGS.

13

SO ON THE MOTOROLA DOCUMENTATION, IT'S

14

EITHER PRODUCED OR IT DOESN'T EXIST.

SO WE

15

PRODUCED EVERYTHING WITH THE ONLY EXCLUSION BEING

16

REDACTIONS FOR GOOGLE CONFIDENTIAL INFORMATION IN

17

THE MOTOROLA TRANSCRIPTS.

18

IF YOU ORDER US TO PRODUCE REGARDLESS OF

19

THE REDACTIONS, OF COURSE WE WILL COMPLY WITH YOUR

20

ORDER BUT WE'VE GONE TO GOOGLE AND ASKED THEM FOR

21

PERMISSION TO PRODUCE THE REDACTED --

22

THE COURT:

23

MR. JACOBS:

24

I THINK WE ARE STILL WAITING FOR AN

25

WHAT HAVE THEY SAID?
-- PORTION.

ANSWER.
44

1

THE COURT:

2

ALL RIGHT.

3

MR. JACOBS:

4

I SHOULD HAVE ASKED THEM.

I THINK SOME OF THIS

MS. MAROULIS CONCEDED.

5

ON MAC OS 10, ALREADY PRODUCED.

6

SUPERCLOCK, ALREADY PRODUCED.

MEMORY CARDS, I'M

7

GOING TO LET MR. HUNG HANDLE BECAUSE HE WAS ON THE

8

PHONE WITH YOU AND THIS WAS DISCUSSED BEFORE.

9

ON THE 035, ASIDE FROM THE CONFIDENTIAL

10

ISSUE, THEY ARE ASKING FOR "OTHER RECORDS AND CAD

11

DRAWINGS."

12

AND WE ARE GOING TO TRY TO TIE THE CAD TO

13

THE 035, AND WE WILL TRY TO TELL THEM AS BEST WE

14

CAN, YES, THIS IS THE CAD FOR THIS MODEL.

15

MR. JACOBS:

SKETCHBOOKS.

16

SO THIS IS PRETTY IMPORTANT.

WE HAVE

17

AGREED THAT WE ARE GOING TO TRY TO MAKE THE

18

SKETCHBOOK PRODUCTION MORE COMPLETE FROM THE

19

STANDPOINT OF DATES AND DATE IDENTIFICATION.

20

BUT YOU RULED ON THIS IN SEPTEMBER AND

21

SAID THAT AS TO IRRELEVANT PRODUCTS WE DON'T NEED

22

TO PRODUCE THOSE SKETCHES SO WE WOULD CONTINUE TO

23

REDACT.

24
25

AND WE THINK THAT'S IMPORTANT AND
CONSISTENT WITH THE DIRECTION THAT YOU HAVE GIVEN
45

1
2

US.
ON THE SONY TRIO AND THE RAZOR, WE ARE

3

LOOKING, THESE ARE OLD PROJECTS.

4

WE WILL DO OUR BEST.

5
6
7

WE'RE LOOKING.

ON THE 1989 FLAT PANEL DISPLAY BRAINBOX,
IT'S 20 YEARS OLD BUT WE ARE LOOKING.
ON APPLE CINEMA DISPLAY, THIS IS BACK TO

8

A RELEVANCE ISSUE.

9

ABOUT CINEMA DISPLAY.

10

THEY ASK FOR ALL DOCUMENTS

I MEAN, THAT'S A PRODUCT.

THE ONLY

11

RELEVANCE IS WHAT WAS MADE AVAILABLE TO THE PUBLIC

12

AS A CLAIMED INVALIDITY PRIOR ART REFERENCE.

13

WAY TOO EXTREME IN TERMS OF WHAT THEY ARE SEEK.

14

WE PROPOSED TO PRODUCE THE CAD OR THE

SO

15

FINAL DESIGN ON THAT, SO THEY WILL HAVE THE CAD.

16

I TALKED ABOUT THE DEPOSITION

17

TRANSCRIPTS, I THINK I COVERED IT EXCEPT FOR THE

18

MEMORY CARDS.

19
20

THE COURT:

MR. HUNG, DO YOU WANT TO

ADDRESS THE MEMORY CARD?

21

MR. HUNG:

SURE.

22

JUST TO CLARIFY ONE THING.

23

IN TERMS OF ASKING GOOGLE FOR PERMISSION

24

TO PRODUCE THE TRANSCRIPTS, WE ASKED, SIMPLY

25

UNDERSTAND THAT QUINN EMANUEL DOES REPRESENT
46

1

GOOGLE.

2

SAID, YOU SHOULD BE ASKING THE TWO PARTIES GOOGLE

3

AND I BELIEVE ATMEL.

4

WE DID SAY, CAN YOU ASK YOUR CLIENT?

WE

THEY THEN WENT BACK AND SAID, NO YOU

5

SHOULD DO IT.

I THINK THAT'S THE CURRENT STATUS.

6

WE DO HAVE TO DO IT, THAT'S IN OUR COURT, BUT WE

7

HAVEN'T DONE IT YET.

8

TO CLARIFY THE ISSUE ON MEMORY CARDS --

9

THE COURT:

10

WOULD YOU AGREE, MR. HUNG, IF

I JUST SIMPLY ORDERED IT THERE WOULD BE NO PROBLEM?

11

MR. HUNG:

12

THE COURT:

13
14

IN TERMS OF THE TRANSCRIPTS?
WITH RESPECT TO GOOGLE'S

CONFIDENTIALITY CLAIMS.
MR. HUNG:

I THINK THAT'S RIGHT.

WE

15

WOULD HAVE TO INFORM THEM OF THE ORDER IN CASE THEY

16

WANTED TO SEEK PROTECTION.

17

MR. HUNG:

I THINK THAT'S RIGHT.

SO ON THE MEMORY CARD ISSUE, I

18

THINK THERE'S SOME CONFUSION GOING ON BECAUSE WHEN

19

WE LAST SPOKE THE ISSUE WAS THIS DIAMOND TOUCH

20

WASN'T A PROTOTYPE IT WAS A PUBLIC PIECE OF PRIOR

21

ART, SOMETHING YOU COULD BUY ON EBAY IF IT WAS

22

STILL CARRIED ON EBAY.

23

THE ISSUE WITH THE 035, IT'S A PRIVATE

24

DOCUMENT, IT'S A CONFIDENTIAL MODEL.

WE'VE ASKED

25

THEM FOR COPIES OF OUR MODELS, IN THE BRIEF WE
47

1

ASKED THEM FOR CAD FILES AND WE WOULDN'T PURPORT TO

2

GO TO KOREA AND INSPECT THE MODEL AND TAKE A

3

VIDEOTAPE AND TAKE THE PICTURES AND NOT SHARE IT

4

WITH THEM.

5

ORDER.

6

THAT'S THE POINT OF THE PROTECTIVE

WHEN WE LAST SPOKE YOU SAID, WHAT'S GOOD

7

FOR THE GOOSE IS GOOD FOR THE GANDER, AND IT

8

APPLIES BOTH WAYS.

9

YOU EMPHASIZE THE WORK PRODUCT ISSUE.

10

ARE NO LONGER COMING CLOSE TO HAVING SOMEONE

11

SITTING IN THE ROOM MONITORING, WE AGREE WORK

12

WE

PRODUCT TO GET PROTECTIVE WORK PRODUCT.

13

THE ISSUE COMES DOWN TO WHEN YOU TAKE

14

PHOTOGRAPHS OR VIDEOS OF WHATEVER ELSE YOU WANT OF

15

A CONFIDENTIAL DOCUMENT PROTECTED BY THE PROTECTIVE

16

ORDER, DOES THAT HAVE TO BE PRODUCED?

17

AND YOU DID SAY AT THE END OF THE LAST

18

HEARING WE SHOULD GO AND MAKE SURE IT'S COVERED BY

19

THE PROTECTIVE ORDER.

20

WHAT THE PROTECTIVE ORDER SAYS IS DURING

21

AN INSPECTION IT'S DESIGNATED CONFIDENTIAL, THEN

22

YOU PRODUCE AND YOU BATES LABEL IT.

23

THE IMPLICATION IS YOU REVIEW AND YOU

24

PRODUCE, THAT WAY EVERYONE CAN TRACK AND KNOWS WHAT

25

HAPPENED TO IT.
48

1

THE COURT:

IT WOULDN'T SEEM TO DESTROY

2

THE WORK PRODUCT PROTECTION THAT IS ATTACHED TO IT,

3

WOULDN'T IT?

4

MR. HUNG:

BUT THAT'S ALWAYS THE CASE

5

WHEN YOU REVIEW SOURCE CODE.

6

YOU REVIEW IN THIS CASE CAD DRAWINGS.

FOR EXAMPLE, OR WHEN

7

THE PURPOSE BEHIND THE PROTECTIVE ORDER

8

IS IT'S AN AGREED ORDER, WHETHER AN INTERIM ORDER

9

OR THE ACTUAL ENTERED ORDER.

YOU WANT TO PROTECT

10

THE CONFIDENTIALITY AND IT'S SECRET STUFF.

11

DON'T WANT TO ALLOW SOMEONE TO WALK IN AND MAKE A

12

VIDEO AND NOT SHOW YOU WHAT THEY DID, STORE IT

13

SOMEWHERE WHERE YOU DON'T EVEN KNOW HOW MANY COPIES

14

THEY MADE OR WHAT THEY MADE.

15

YOU

SO THAT'S WHY THE INTERIM PROTECTIVE

16

ORDER, THE ORDER WE PROPOSED OR WE ARE GOING TO

17

PROPOSE, WOULD HAVE A PROVISION WHERE WE TREAT IT

18

LIKE SOURCE CODE.

19

IT WE SHARE IT.

20

THEY INSPECT IT, WE BATES LABEL,

PUBLIC PRIOR ART, AGREED, TOTALLY

21

DIFFERENT.

22

AGAIN, THEY SHOULD HAVE TO GIVE US THE MEMORY CARD.

23

IF WE'RE GOING TO LOOK AT DIAMOND TOUCH

IF THEY WERE GOING TO LOOK AT ONE OF OUR

24

ITEMS ON THE DEFENSIVE CASE, WE SHOULDN'T BE IN THE

25

ROOM WHEN THEY'RE LOOKING AT THE PUBLIC ITEM AS
49

1

WELL IF WE HAVE THE ONLY COPY.

2

SO THAT'S OUR VIEW ON THAT ISSUE.

3

THE COURT:

4

ANY REBUTTAL ON THIS MOTION,

5

THANK YOU, MR. HUNG.

MS. MAROULIS?

6

MS. MAROULIS:

7

LET'S START FROM THE BACK OF WHAT

8

MR. HUNG DISCUSSED.

9
10

BRIEFLY, YOUR HONOR.

APPLE DID INSPECT SAMSUNG PROTOTYPES AND
TOOK A NUMBER OF PICTURES AND NEVER GAVE US A COPY.

11

THE DISTINCTION THAT YOUR HONOR DREW IN

12

THE DECEMBER 2ND ORDER WAS BETWEEN WORK PRODUCT AND

13

NOT.

NOT BETWEEN CONFIDENTIAL AND NONCONFIDENTIAL.

14

SO WE BELIEVE THAT'S THE DISTINCTION THAT

15

APPLIES AND THE SAME RULE SHOULD APPLY TO BOTH

16

PARTIES, AND THAT IS WHY APPLE NEEDS TO RETURN OUR

17

MATERIALS.

18

SECOND POINT RELATES TO DESIGNATIONS AS

19

WELL, AND THAT'S THE POINT MR. JACOBS RAISED WHICH

20

IS:

21

THE 035.

WHY DO WE NEED TO DE-DESIGNATE THE PHOTOS OF

22

ONE OF THE REASONS IF IT'S NOT

23

CONFIDENTIAL IS WE CAN SHARE IT WITH THE CLIENT TO

24

HELP US FIND MORE PRIOR ART.

25

EXPERT, AND AS WE WILL DISCUSS IN A MINUTE IN A

WE CAN SHARE WITH OUR

50

1

DIFFERENT MOTION, THEY ARE BLOCKING OUR EXPERT'S

2

ACCESS TO CONFIDENTIAL INFORMATION.

3

SO HAD THIS INFORMATION ABOUT 035 MOCK UP

4

BEEN PROPERLY DESIGNATED AS PUBLIC, WE COULD HAVE

5

SHOWN IT TO MR. SHERMAN LONG AGO WHILE THIS MOTION

6

WAS PENDING.

7
8
9

THE COURT:

OR I CAN GRANT THE OTHER

MOTION AND HE COULD GET ACCESS THAT WAY.
MS. MAROULIS:

THAT IS ALSO TRUE, BUT WE

10

CANNOT OBVIOUSLY SHOW IT TO SAMSUNG EVEN THOUGH

11

IT'S THE SAME PHOTO JUST WITH DIFFERENT ANGLES

12

THAT'S SUBMITTED TO THE PATENT OFFICE.

13

FINALLY, MR. JACOBS MADE A STATEMENT THEY

14

WERE LOOKING FOR THE VARIOUS CATEGORIES THAT ARE

15

LISTED IN OUR MOTION, SAME IS TRUE FOR US.

16

TO DATE, THEY DID NOT PRODUCED AND NOT

17

AGREED ON VARIOUS CATEGORIES OTHER THAN WHAT I

18

STATED AT THE OUTSET OF MY ARGUMENT WHICH IS THE

19

SOURCE CODE FOR THE TWO PRIOR ART DEVICES AND

20

PLEADINGS FROM THE MOTOROLA LITIGATION.

21

SO THE REST IS SUBJECT TO THE MOTION.

22

THE COURT:

23

SHALL WE TURN OUR LAST FEW MINUTES TO

24

YOUR SECOND MOTION WITH RESPECT TO MR. SHERMAN?

25

ALL RIGHT.

I'M SORRY, MR. HUNG, IF YOU WANT TO TAKE
51

1

A MINUTE, I WILL GIVE YOU A MINUTE.

2
3

MR. HUNG:

CAN I ADD ONE POINT IN TERMS

OF THE INSPECTION?

4

TO THE EXTENT THAT WE PREVIOUSLY KEPT AND

5

CAN DID NOT GIVE THEM COPIES OF PHOTOGRAPHS WE TOOK

6

OF SOMETHING THAT'S CONFIDENTIAL, WE'RE HAPPY TO

7

DESTROY AND RETURN IT TO TAKE CARE OF THIS ISSUE.

8
9

WHAT'S GOOD FOR THE GOOSE IS GOOD FOR THE
GANDER.

10

RELATEDLY, BEFORE THE LAST INSPECTION

11

WHEN WE CALLED YOU THERE WAS ANOTHER INSPECTION

12

WHERE THEY DID TAKE A COPY OF OUR MEMORY STICK, SO

13

THAT SHOULD BE GIVEN BACK TO US AS WELL.

14

IT SHOULD APPLY BOTH WAYS, BUT WE THINK

15

THAT PROTECTIONS SHOULD CONTINUE TO APPLY TO

16

CONFIDENTIAL INFORMATION.

17
18
19

THE COURT:

LET'S TURN TO THE SECOND OF

SAMSUNG'S MOTIONS.
MS. MAROULIS:

YOUR HONOR, THE SECOND

20

MOTION WE HAVE IS A MOTION TO ALLOW ACCESS FOR OUR

21

DESIGN EXPERT MR. SHERMAN.

22

EXPERT ON THE ISSUES OF PHONE DESIGN WHICH IS

23

CENTRAL TO THIS CASE.

24
25

MR. SHERMAN IS AN

HE'S BEING DESIGNATED SOLELY FOR THE
PURPOSE OF LOOKING AT THE OUTSIDE HARDWARE LOOK AND
52

1

FEEL OF THE PHONES.

2

CONNECTION WITH THE PRELIMINARY INJUNCTION

3

PROCEEDINGS AND JUDGE KOH CREDITED HIS TESTIMONY.

4

HE SUBMITTED HIS TESTIMONY IN

WE STRONGLY BELIEVE AN EXPERT WHO CAN BE

5

USEFUL TO THE COURT AND THE JURY IN THIS CASE IS

6

SOMEONE WHO KNOWS ABOUT PHONE DESIGN BECAUSE THE

7

ISSUES OF INVALIDITY, THE ISSUES OF FUNCTIONALITY

8

AND THE ISSUES OF HOW THESE PHONES COME INTO BEING.

9

THEREFORE, THIS MOTION IS NOT JUST ABOUT

10

MR. SHERMAN.

11

OBJECTIONS TO ANY OTHER PERSON WHO KNOWS AND

12

PRACTICES DESIGN OF PHONES.

13

WE BELIEVE APPLE WILL HAVE SIMILAR

THE COURT:

THE ONLY PROBLEM IS FOLKS

14

WITH EXPERTISE, I SUSPECT ARE IN GREAT DEMAND BY

15

THE MARKET.

16

THAT?

17
18
19

SO WHAT LINE SHOULD I DRAW AROUND

MS. MAROULIS:

YOUR HONOR, THERE ARE TWO

BASIC LINES HERE.
ONE IS THAT WE HAVE TOLD APPLE THAT WE

20

WILL ONLY SHOW TO MR. SHERMAN THE DESIGN DOCUMENTS,

21

WE WILL NOT SHOW THEM ANY TECHNICAL DOCUMENTS.

22

THEIR CONCERN, AS STATED IN THEIR PAPERS,

23

IS THAT MR. SHERMAN'S CONSULT CURRENT CONSULTANT

24

COMPANY, WHICH IS ALL OF ONE PERSON, IS ENGAGED IN

25

THE BUSINESS OF PROVIDING CONSULTING ON MULTI TOUCH
53

1

TECHNOLOGY.

2

WE WOULD NOT SHOW HIM ANY SOURCE CODE OR

3

ANY OF APPLE'S TECHNICAL DOCUMENTATION.

4

REVIEWING DESIGN CAD FILES, DESIGN HISTORY

5

DOCUMENTS AND OTHER DESIGN SKETCHBOOKS AND DESIGN

6

DOCUMENTS.

7

HE IS NOT IN BUSINESS RIGHT NOW OF

8

DESIGNING HARDWARE.

9

RELATING TO THAT.

10
11

HE WILL BE

HE'S NOT DOING ANY CONSULTING
AND APPLE QUESTIONED HIM DURING

HIS DEPOSITION REGARDING WHAT HE DOES ACTUALLY DO.
THE COURT:

SO THE LINE BETWEEN DESIGN

12

AND FUNCTION IS AN ATTRACTIVE ONE, BUT HASN'T YOUR

13

OWN WITNESS SUGGESTED THAT'S PRETTY BLURRY WHEN YOU

14

GET DOWN TO SPECIFIC INSTANCES OF WHETHER SOMEONE

15

SHOULD LOOK AT THE DOCUMENT OR NOT?

16

MS. MAROULIS:

YOUR HONOR, WHEN I SAY I'M

17

NOT GOING TO SHOW HIM TECHNICAL DOCUMENTS, WE WILL

18

NOT SHOW HIM THE GUTS OF THE FILM.

19

HOW ONE -- IN THAT, THE MULTITOUCH

20

SYSTEM, HOW ONE DEALS WITH THE TOUCH SCREEN

21

TECHNOLOGY.

22

IS THAT DEPENDING WHERE YOU PLACE THE SPEAKERS

23

DICTATE THE FACT WHERE YOUR EAR IS.

24

FUNCTIONAL ARGUMENT BUT IT DOESN'T REQUIRE HIM TO

25

GO TO THE SOURCE CODE WHEN YOU HAVE THE ASPECTS OF

WHAT HE WAS TALKING ABOUT THE FUNCTION

THAT'S A

54

1
2

THE CASE.
WE HAVE PREVIOUSLY DISCUSSED WITH APPLE

3

SUBMITTING TO THEM A BROAD LIST OF CATEGORIES THAT

4

WE WILL SHOW THEM.

5

DOES CREEP INTO THE WORK PRODUCT ISSUES WE WERE

6

WILLING TO DO THAT, THEY REJECTED THAT PROPOSAL.

7
8
9

SUBMITTED DECLARATIONS THAT

WE WILL CERTAINLY NOT BE REQUIRED TO VET
WITH THEM EVERY DOCUMENT WE SHOW TO OUR EXPERT.
BUT IN GENERAL WE BELIEVE IN OUR MOTION

10

AND IN MR. SHERMAN'S DECLARATION, WE LAID OUT

11

SUFFICIENT BASIS TO SHOW THAT HE -- TWO THINGS.

12

ONE, HE'S NOT DIRECTLY COMPETING WITH

13

APPLE IN ANY WAY.

14

AND TWO, THAT BECAUSE HE WILL BE GIVEN

15

ONLY DESIGN DOCUMENTS AND NOT ANY KIND OF SOURCE

16

CODE OR TECHNICAL DOCUMENTS THAT CAN POTENTIALLY

17

HELP SOMEONE IN THE MULTI TOUCH BUSINESS, THIS WILL

18

NOT BE A THREAT TO APPLE.

19

AND I KNOW YOU WILL HEAR ON RESPONSE HOW

20

APPLE IS VERY CAREFUL ABOUT THE SECRECY OF ITS

21

DOCUMENTS AND WE OBVIOUSLY WE RESPECT THAT, BUT

22

THERE'S A NEED IN THIS CASE TO LOOK AT THE DESIGN

23

DOCUMENTS AND THERE'S A NEED FOR SOMEONE WHO KNOWS

24

ABOUT PHONE DESIGN.

25

ONE OF THE REASONS WE CHALLENGED ON THE
55

1

DAUBERT MOTION, APPLE'S EXPERT, IS HE DOESN'T KNOW

2

ANYTHING ABOUT FILM DESIGN.

3

FORCED TO GO WITH A SIMILAR EXPERT WHO DOES NOT

4

HAVE PRACTICAL EXPERIENCE IN LEARNING HOW TO DESIGN

5

PHONES AND EXPLAINING THAT TO THE JUDGE AND TO THE

6

JURY.

7

THE COURT:

AND WE SHOULD NOT BE

THE QUESTION I HAVE ON THAT

8

IS, IT SEEMS TO ME WHEN I'M DEALING WITH MOTIONS

9

LIKE THIS, ONE REASONABLE CONSIDERATION IS THE

10

UNIVERSAL POOL OF TALENT FROM WHICH TO DRAW ONE OR

11

MORE EXPERTS.

12

IN THIS PARTICULAR INSTANCE ARE YOU

13

TELLING ME THAT MR. SHERMAN IS ONE OF ONLY A

14

HANDFUL OF FOLKS IN THE WORLD, SAMSUNG IS A

15

WORLDWIDE COMPANY, THEY HAVE AMPLE REAL ESTATE

16

SOURCES WHO CAN INTELLIGENTLY SPEAK TO THE ISSUES

17

OF DESIGN?

18

MS. MAROULIS:

YOUR HONOR, YOU SHOULD

19

PROBABLY PICK UP FROM OUR PAPERS THAT MR. SHERMAN

20

IS IN ISRAEL.

21

GET SOMEBODY WHO IS NOT IN SOME CAPACITY INVOLVED

22

WITH APPLE, SAMSUNG OR ANY OF ITS DIRECT

23

COMPETITORS.

24
25

SO WE HAD TO GO ALL THE WAY THERE TO

THE COURT:

HE SHOULD LOVE TO WORK WITH

ALL OF YOU.
56

1

MS. MAROULIS:

2

SURE YOU WILL FORM THAT OPINION.

3
4

THE COURT:

I'M EXPRESSING NO OPINION AT

ALL.

5

MS. MAROULIS:

6

THE COURT:

7
8
9
10
11

AFTER THESE MOTIONS, I'M

IT WOULD BE DIFFICULT.

I KNOW SOMETIMES THAT'S AN

ISSUE RIGHT.
MS. MAROULIS:

IT'S A VERY SMALL POOL,

RIGHT, FOR REASONS OF BOTH SPECIFIC EXPERTISE AND
THE CONFLICT ISSUES.
WE OBVIOUSLY CANNOT WORK WITH ANYONE WHO

12

IS WORKING DIRECTLY OR INDIRECTLY WITH APPLE.

WE

13

CANNOT WORK WITH ANYONE WHO IS WORKING DIRECTLY OR

14

INDIRECTLY WITH SAMSUNG.

15

THERE'S SEVERAL OTHER LARGE COMPETITORS

16

OF BOTH COMPANIES WHERE THAT WOULD BE AN ISSUE AS

17

WELL VIS A VIE LOOKING AT BOTH APPLE'S CONFIDENTIAL

18

DOCUMENTS BUT OURS AS WELL.

19
20
21
22
23
24
25

THE COURT:

IS HE THE ONLY EXPERT YOU

HAVE ON THIS PARTICULAR SUBJECT?
I DON'T WANT TO INTRUDE UPON YOUR
CONFIDENTIAL -MS. MAROULIS:

HE'S THE ONLY EXPERT

DISCLOSED IN THE DESIGN.
SO IN CONCLUSION WE WOULD GREATLY
57

1

APPRECIATE A RULING ON THIS ISSUE.

WE ACTUALLY

2

TEED IT UP ABOUT TWO MONTHS AGO BUT WE HAD BEEN

3

HOPING TO RESOLVE IT WITH APPLE WITHOUT A MOTION

4

PRACTICE, AND IT LOOKED AT ONE POINT THAT WE WERE

5

CLOSE BUT PARTIES FELL APART AGAIN, ON THIS ISSUE.

6

AND SO IT WOULD BE VERY IMPORTANT FOR US

7

TO BE ABLE TO START SHOWING MR. SHERMAN THE

8

CONFIDENTIAL DOCUMENTS BECAUSE SO FAR HIS OPINION

9

HAS BEEN BASED ON PUBLIC INFORMATION AND HE NEEDS

10

TO GET ACCESS TO THE CONFIDENTIAL INFORMATION.

11

THE COURT:

ALL RIGHT.

12

MS. MAROULIS:

13

THE COURT:

14

MR. JACOBS:

THANK YOU.

THANK YOU, YOUR HONOR.

MR. JACOBS?
WELL, AGAIN, WE'RE SEEKING

15

HELP FOR PROTECTION OF OUR CONFIDENTIAL

16

INFORMATION.

17

GEOGRAPHICALLY REMOTE BUT QUITE PROXIMAL IN SUBJECT

18

AREA.

19

THIS IS AN INDIVIDUAL WHO IS

AND THE FACT THAT HE'S STILL ENGAGED IN

20

MULTI TOUCH, WHICH IS DIRECTLY COMPETITIVE WITH

21

APPLE, AND WHERE IN SAMSUNG'S VIEW OF THE CASE

22

MULTI TOUCH DRIVES DESIGN, MEANS THAT THERE'S --

23

THE OVERLAP BETWEEN, AS YOU WERE SUGGESTING THE

24

OVERLAP BETWEEN WHAT MIGHT BE REGARDED AS FUNCTION

25

AND WHAT MIGHT BE REGARDED AS DESIGN ESPECIALLY
58

1

FROM SAMSUNG'S STANDPOINT IS QUITE WIDE.

2

SO RECENTLY HE DID PHONE RELATED WORK.

3

HE CONSULTS.

4

CONSULTING INFORMATION AS ATTORNEY'S EYES ONLY, SO

5

ALL I WILL SAY ABOUT IT IS HE CONSULTS NOW AND

6

WOULD NOT DISCLOSE ALL OF HIS CONSULTING CLIENTS,

7

AND SOME OF HIS CONSULTING CLIENTS ARE IN THE PHONE

8

BUSINESS.

9

NOW THEY DESIGNATED SOME OF HIS

SO THE TEMPTATION THAT HE MIGHT HAVE,

10

BECAUSE ONCE YOU SEE THESE DESIGNS, I MEAN ONCE YOU

11

SEE THE DESIGN IDEAS, IT'S YOUR HEAD.

12

WE HAVE THESE PROTECTIVE MEASURES.

13

HAVE A PROSECUTION BAR WHICH WOULD CUT MORE BROADLY

14

FOR LAWYERS THAN THE LINE THEY WOULD DRAW FOR

15

SHERMAN.

16
17
18

THAT'S WHY

THAT'S WHY WE

SO FOR ALL THOSE REASONS WE THINK THIS
ONE IS TOO CLOSE.
AND IT'S A MULTI FACTORIAL.

I DON'T WANT

19

TO PIN IT TO ANY INDIVIDUAL ASPECT, ONCE HE GETS

20

INTO THE CIRCLE OF THE SUBJECT MATTER.

21

TO THE COMPLEXITY HERE OR OUR CONCERN THAT HE'S NOT

22

AN ACADEMIC, SO HE'S IN THE BUSINESS OF SELLING HIS

23

KNOWLEDGE AND TIME TO PEOPLE WHO WILL PAY FOR IT.

24
25

BUT TO ADD

AND WE ARE JUST VERY, VERY CONCERNED.
BECAUSE OF THE IMPORTANCE OF THIS INFORMATION AND
59

1

ITS SENSITIVITY

2
3

THE COURT:

DO YOU HAVE A -- HAVE YOU

DISCLOSED YET A COUNTERPART TO MR. SHERMAN?

4

MR. JACOBS:

5

THE COURT:

6

YES.
CAN YOU DESCRIBE FOR ME WHO

THAT PERSON IS AND THEIR EXPERTISE?

7

MR. JACOBS:

8

THE COOPER WOODRING IS A LONG TIME DESIGN

9

WE HAVE TWO.

EXPERT WHO IS HEAD OF THE INDUSTRIAL DESIGN

10

ASSOCIATION, FOR THE MOMENT I CAN'T REMEMBER HIS

11

NAME.

12

THEY DID CHALLENGE HIS CREDENTIALS --

13

JUDGE KOH DID NOT GRANT THAT MOTION AND ADMITTED

14

HIS TESTIMONY FOR PURPOSES OF THE PRELIMINARY

15

INJUNCTION.

16
17

WE ALSO HAVE ANOTHER EXPERT, IF YOU WILL
JUST GIVE ME A MINUTE

18

THE COURT:

19

SURE.

MR. JACOBS:

A BRESSLER, A DOCTOR

20

BRESSLER WHO HAS -- AND HE IS AN INDUSTRIAL

21

DESIGNER BY BACKGROUND.

22

AND I DON'T THINK -- HAVE WE DRAWN AN OBJECTION?

23
24
25

MR. JACOBS:

AND WE HAVE DISCLOSED HIM,

OH, THEY ARE OBJECTING.

THERE YOU GO.
SO WE DO NEED TO DRAW THE LINE.

BUT WE
60

1

WOULD DRAW IT AGAINST SHERMAN AND WE'LL GET TO

2

BRESSLER WHEN WE GET TO HIM.

3

THE COURT:

IS THERE ANY ROLE FOR

4

MR. SHERMAN THAT YOU THINK IS APPROPRIATE?

5

I MEAN, OBVIOUSLY HE CAN LOOK AT

6

NONCONFIDENTIAL INFORMATION, THAT'S NO PROBLEM.

7

MR. JACOBS:

EXACTLY.

AND HE DID THAT.

8

AND HE TESTIFIED IN THE PRELIMINARY INJUNCTION AND

9

JUDGE KOH ACKNOWLEDGED HIS TESTIMONY.

10

THE COURT:

BUT YOUR VIEW IS THAT GIVEN

11

HIS EXPERIENCE AND SUCCESS AT WHAT HE DOES, THERE'S

12

NO LINE I COULD DRAW AS TO CONFIDENTIALITY

13

INFORMATION THAT WOULD ADEQUATELY PROTECT YOUR

14

INTEREST?

15
16

MR. JACOBS:

I DON'T THINK SO, AND LET ME

GIVE YOU AN EXAMPLE AS TO WHY ITS SO DIFFICULT.

17

ONE OF THEIR PROPOSED CATEGORIES IS

18

DESIGN DOCUMENTATION THAT GO TO THE DESIGN OF APPLE

19

PRODUCTS.

20

WELL, APPLE'S PRODUCTS ARE CAPTURED IN

21

REVIEW DOCUMENTS AND THOSE REVIEW DOCUMENTS WOULD

22

MIX WHAT WE MIGHT THINK OF DESIGN, INDUSTRIAL

23

DESIGN WITH HARDWARE DESIGN OR PRODUCT DESIGN AND

24

THAT WILL ALL BE INTERMINGLED.

25

THE FACT OF ITS INTERMINGLING, I IMAGINE
61

1

WILL BE SOMETHING SAMSUNG WILL USE TO SAY, LOOK,

2

THIS IS ALL FUNCTIONALLY DRIVEN.

3

THEN THAT THE DOCUMENT THAT THEY WOULD PROPOSE TO

4

RELY ON WOULD NOT BE A PURE INDUSTRIAL DESIGN

5

DOCUMENT, IT WOULD HAVE A MINGLING OF MOTION.

6

THE COURT:

BUT THAT MEANS

IF I WERE ABLE TO DEFINE AND

7

DELINEATE A CATEGORY OF PURELY INDUSTRIAL DESIGN

8

DOCUMENTS THAT WERE NOT TAINTED IN ANY WAY BY MORE

9

FUNCTIONAL OR HARDWARE DRIVEN CONCERNS, WOULD THAT

10

BE SOMETHING I COULD DO THAT WOULD ADEQUATELY

11

PROTECT APPLE'S INTEREST?

12

NOT WORK?

13

MR. JACOBS:

OR WHY WOULD THAT STILL

I THINK BECAUSE HE'S SO

14

ACTIVE IN A CLOSE AREA.

THE FACT THAT HE'S DEALING

15

WITH MULTI TOUCH NOW AND CONSULTING FOR CONSUMERS

16

OF MULTI TOUCH, WHICH BY DEFINITION IS HANDHELD

17

PRODUCTS THAT YOU ARE GOING TO USE TO TOUCH, THAT'S

18

ALL PRETTY CLOSE TO AN IPAD OR IPHONE OR WHATEVER

19

OTHER DOCUMENTS MIGHT SURFACE IN THAT PRODUCTION.

20

THE COURT:

21

THANK YOU VERY MUCH.

22

MR. JACOBS:

23

THE COURT:

24
25

ALL RIGHT.

THANK YOU VERY MUCH.
ANY LAST REMARKS,

MS. MAROULIS.
MS. MAROULIS:

YES, YOUR HONOR.
62

1

MR. JACOBS INVOKED THE MIX DOCUMENTS THAT

2

MIGHT INVOLVE TECHNICAL SPECIFICATIONS WITH THE

3

DESIGN.

4
5

HOWEVER, THERE'S A HUGE NUMBER OF
CATEGORIES THAT ARE NOT MIXED AT ALL.

6

FOR EXAMPLE, CAD FILES WILL HAVE NO

7

TECHNICAL INFORMATION AS TO MULTI TOUCH TECHNOLOGY.

8

SAME WITH THE SKETCHBOOKS.

9
10

IN FULL, THEY WILL NOT HAVE THE
INFORMATION EITHER

11

THE COURT:

I TAKE IT THAT THEIR

12

INDUSTRIAL DESIGNERS ARE NOT CONCERNED VERY MUCH

13

WITH THE BLOOD AND GUTS OF THE MICROPROCESSOR,

14

RIGHT?

15
16

MS. MAROULIS:

CORRECT, YOUR HONOR

IT'S PURELY OUTSIDE THE HARDWARE AND SUCH.

17

AND THEN FINALLY, WE CAN NOT HAVE THE

18

CONCERNS ABOUT SECRECY OF APPLE'S PRODUCTS OVER

19

SAMSUNG'S NEED TO HAVE ACCESS TO INFORMATION

20

BECAUSE APPLE CHOSE TO PUT THE DESIGN AT ISSUE IN

21

THIS CASE.

22

THIS IS A CASE WHERE APPLE IS MOVING FULL

23

FORWARD ON ITS REVOLUTIONARY DESIGNS.

THERE'S A

24

COST TO INITIATING LITIGATION, AND THAT IS YOU HAVE

25

TO LET YOUR OPPONENT DO DISCOVERY.
63

1

AND THIS IS GOING TO BE PROTECTED BY THE

2

PROTECTIVE ORDER BY HIGHEST LEVEL OF DESIGNATION.

3

MR. SHERMAN IS GOING TO BE SUBJECT TO THE

4

PROTECTIVE ORDER UNDERTAKING.

5

HE'S GOING TO BE SUBJECT TO SANCTIONS OF THIS

6

COURT.

7

IF HE VIOLATES IT,

AND WE CANNOT SIMPLY NOT ALLOW US ACCESS

8

TO THE INFORMATION BECAUSE APPLE PREFERS TO KEEP

9

ITS FILES SUPER CONFIDENTIAL.

10

THE COURT:

11

RESTRICTIONS AT ALL?

12

IS MR. SHERMAN SUBJECT TO ANY

UNDER THE TERMS OF THE PROTECTIVE ORDER,

13

FOR EXAMPLE, PATENT ATTORNEYS ARE BOUND BY

14

PROSECUTION BARS, OFTEN THERE ARE COMPETITIVE

15

DECISION MAKING BOUNDARIES THAT ARE DRAWN.

16
17

IS MR. SHERMAN SUBJECT TO ANY
RESTRICTIONS?

18

MS. MAROULIS:

YOUR HONOR, I BELIEVE THAT

19

THE EXHIBITS TO PROTECTIVE ORDER UNDERTAKING SAYS I

20

THEREBY SUBJECT MYSELF TO THE JURISDICTION OF THIS

21

COURT.

22

I CANNOT QUOTE IT FROM MEMORY, BUT THERE

23

IS SOME LINE ABOUT THAT, SO HE WILL BE BOUND BY

24

THAT.

25

THE COURT:

ALL RIGHT.
64

1

UNLESS YOU HAVE ANYTHING FURTHER, I'M

2

AFRAID I'M OUT OF TIME.

3

MS. MAROULIS:

4

THE COURT:

5

ALL THESE MOTIONS ARE SUBMITTED.

THANK YOU, YOUR HONOR.

THANK YOU.
I WILL

6

WORK AS DILIGENTLY AS I CAN TO GET YOU AN ORDER

7

SHORTLY.

IN THE MEANTIME, HAVE A GOOD WEEKEND.

8

MR. JACOBS:

9

THE CLERK:

10
11

THANK YOU, YOUR HONOR.
THE COURT IS IN RECESS.

(WHEREUPON THE MATTERS IN THIS CASE WERE
CONCLUDED.)

12
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65

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CERTIFICATE OF REPORTER

5
6
7
8
9

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

10

THE NORTHERN DISTRICT OF CALIFORNIA, 280 SOUTH

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FIRST STREET, SAN JOSE, CALIFORNIA, DO HEREBY

12

CERTIFY:

13

THAT THE FOREGOING TRANSCRIPT,

14

CERTIFICATE INCLUSIVE, CONSTITUTES A TRUE, FULL AND

15

CORRECT TRANSCRIPT OF MY SHORTHAND NOTES TAKEN AS

16

SUCH OFFICIAL COURT REPORTER OF THE PROCEEDINGS

17

HEREINBEFORE ENTITLED AND REDUCED BY COMPUTER-AIDED

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TRANSCRIPTION TO THE BEST OF MY ABILITY.

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20
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__________________________
SUMMER A. FISHER, CSR, CRR
CERTIFICATE NUMBER 13185

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