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

Filing 613

Administrative Motion to File Under Seal filed by Apple Inc.. (Attachments: #1 Apple's Motion to Compel Production of Documents and Things, #2 Mazza Declaration ISO Apple's Motion to Compel, #3 Ex A to Mazza Decl, #4 Ex B to Mazza Decl, #5 Ex C to Mazza Decl, #6 Ex D to Mazza Decl, #7 Ex E to Mazza Decl, #8 Ex F to Mazza Decl, #9 Ex G to Mazza Decl, #10 Ex H to Mazza Decl, #11 Ex I to Mazza Decl, #12 Ex J to Mazza Decl, #13 Ex K to Mazza Decl, #14 Ex L to Mazza Decl, #15 Ex M to Mazza Decl, #16 Ex N to Mazza Decl, #17 Proposed Order)(Jacobs, Michael) (Filed on 1/11/2012) Modified on 6/8/2012 (ofr, COURT STAFF).

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HAROLD J. MCELHINNY (CA SBN 66781)
[e-mail]
MICHAEL A. JACOBS (CA SBN 111664)
[e-mail]
JENNIFER LEE TAYLOR (CA SBN 161368)
[e-mail]
ALISON M. TUCHER (CA SBN 171363)
[e-mail]
RICHARD S.J. HUNG (CA SBN 197425)
[e-mail]
JASON R. BARTLETT (CA SBN 214530)
[e-mail]
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: [phone]
Facsimile: [phone]

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WILLIAM F. LEE
[e-mail]
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
Telephone: [phone]
Facsimile: [phone]
MARK D. SELWYN (SBN 244180)
[e-mail]
WILMER CUTLER PICKERING
HALE AND DORR LLP
950 Page Mill Road
Palo Alto, California 94304
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiff and
Counterclaim-Defendant APPLE INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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APPLE INC.,

Case No.

11-cv-01846-LHK (PSG)

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Plaintiff,
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v.
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DECLARATION OF MIA MAZZA
IN SUPPORT OF MOTION TO
COMPEL PRODUCTION OF
DOCUMENTS AND THINGS

SAMSUNG ELECTRONICS CO., LTD., A
Korean business entity; SAMSUNG
ELECTRONICS AMERICA, INC., a New York
corporation; SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC, a
Delaware limited liability company.,
Defendants.

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MAZZA DECLARATION ISO APPLE’S MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND THINGS
11-CV-01846-LHK (PSG)
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I, Mia Mazza, declare as follows:

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I am a partner in the law firm of Morrison & Foerster LLP, counsel for Apple Inc.

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(“Apple”). I am licensed to practice law in the State of California. Unless otherwise indicated, I

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have personal knowledge of the matters stated herein or understand them to be true from

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members of my litigation team. I make this Declaration in support of Apple’s Motion to Compel

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Production of Documents and Things.

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2.

To date, Apple has produced more than 870,000 pages of documents to Samsung

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in support of Apple’s affirmative case. This excludes a large number of improperly rendered

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documents that were clawed back immediately after their production. Apple has also produced

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more than 400,000 pages of documents to Samsung in Apple’s offensive ITC proceedings, which

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will be available for cross-use in this case under the parties’ negotiated Protective Order.

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3.

The Court’s September 28, 2011, Order required Samsung to produce several

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categories of documents by Friday, October 7, 2011. Samsung, citing technical difficulties, did

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not finish producing the required documents until Tuesday, October 12, 2011, the day before the

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October 13, 2011 hearing on Apple’s Motion for Preliminary Injunction. Over the following six

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weeks the only documents Samsung produced in response to Apple’s document requests relating

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to Apple’s claims against Samsung were attachments that had been omitted from Samsung’s

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preliminary injunction production.

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4.

Samsung subsequently stopped producing documents in Apple’s offensive case.

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Between October 18, 2011, and December 21, 2011, with the exception of Thanksgiving week,

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the parties engaged in weekly meet-and-confer calls amongst non-lead counsel. Throughout each

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week, the parties exchanged correspondence regarding outstanding document production issues.

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Throughout that period, however, Samsung did not produce a single additional document (other

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than some missing attachments) responsive to Apple’s document requests relating to its claims

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against Samsung. On Apple’s agenda every week, and in at least one letter every week, Apple

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pushed Samsung to produce additional documents that Samsung was supposed to have produced

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by October 7, 2011. Despite these regular discussions, Apple advised Samsung on November 30,

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MAZZA DECLARATION ISO APPLE’S MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND THINGS
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2011, that Apple would be moving to compel on December 8, 2011. On December 7, 2011, the

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day before Apple filed its motion, Samsung started producing documents.

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5.

Between September 30, 2011 and December 1, 2011, Samsung deposed 48 Apple

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patent prosecutors and inventors. The parties had agreed that each deponent’s relevant

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documents would be produced no fewer than five days before his or her deposition. Between late

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September and early November, Apple produced documents to Samsung almost every day. More

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than 15,000 documents were produced by Apple during that time frame, totalling more than

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750,000 pages.

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With the March 8, 2012, discovery cut-off quickly approaching, Apple has noticed

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the depositions of 38 Samsung witnesses, and expects those depositions to take place primarily in

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January and early February 2012. At least two of these witnesses are software programmers who

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helped develop and write the source code for the allegedly infringing “rubber banding” feature

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claimed by U.S. Patent No. 7,469,381. Twenty of these individuals are industrial or graphical

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user interface designers, identified by Samsung or its documents as being involved in the design

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of the Samsung products at issue. Other noticed deponents were involved in the hardware

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redesign of the Galaxy Tab 10.1. Still others were copied on documents showing Samsung’s

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analysis of Apple’s products.

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7.

This list of 38 witnesses is just the initial list of individuals whom Apple would

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like to depose. Apple plans to depose several additional witnesses in February 2012, including

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Samsung employees with knowledge of Samsung’s product development, witnesses familiar with

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sales and financial information, and employees responsible for customer surveys, marketing and

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business strategy. Apple also plans to depose several additional Samsung witnesses with

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knowledge relevant to Apple’s trademark infringement, damages and other claims. Because of

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the sparsity of Samsung’s document production, however, Apple has had difficulty both

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preparing for these depositions and identifying the most relevant additional deponents. The

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financial, marketing, design and technical documents being sought in this motion are relevant to

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all of these depositions.

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MAZZA DECLARATION ISO APPLE’S MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND THINGS
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Samsung has resisted scheduling 26 of the 38 depositions that Apple has noticed,

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and will not tell Apple which of these it will not schedule. To date, Samsung has provided dates

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for only 12 of these deponents. Samsung recently agreed to notify Apple by January 13, 2012

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which of its witnesses it will not put up for deposition voluntarily.

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9.

Between December 22, 2011, and December 31, 2011, counsel for Samsung sent

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at least 16 discovery-related letters to counsel for Apple. Thirteen of those letters were focused

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on Samsung’s requests of Apple, for everything from search terms, interrogatory responses,

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special inspections of alleged prior art, MCOs, and prototypes to the return of memory cards,

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repeating an inventor deposition, Samsung’s Rule 30(b)(6) notice, and even the meet-and-confer

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process itself. Samsung also propounded more than 100 document requests on December 30,

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2011.

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10.

Since January 1, 2012, Samsung has sent numerous communications to Apple in

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which Samsung claimed not to understand Apple’s requests, claimed they are “not ripe,” asserted

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that they are overbroad without identifying a specific, narrowed scope of production Samsung

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would agree to, or offered to produce documents but with additional conditions and soft or far-off

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deadlines.

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The parties held their first in-person lead trial counsel meeting on January 5, 2012,

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to try to crystallize each party’s position on numerous outstanding discovery issues and resolve at

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lesat some of them. At the end of the meeting, the parties agreed to exchange letters the next day

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(January 6) providing their best positions on certain issues discussed. On January 6, counsel for

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Samsung sent me an email stating that she would not be able to provide the letter until Sunday,

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January 8. There was no word from Samsung on Sunday. On Monday morning, counsel for

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Samsung stated that she was “finalizing [Samsung’s] written response.” The letter finally arrived

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at 7:45 p.m. on Tuesday, the same day the parties had originally agreed their briefs would be

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filed. Attached hereto as Exhibit A is a true and correct copy of Samsung’s January 10, 2012,

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letter.

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MAZZA DECLARATION ISO APPLE’S MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND THINGS
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12.

Samsung’s delay in producing technical documents has hampered Apple’s ability

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to prepare for depositions of Samsung’s technical witnesses, which commenced January 11, 2012

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(the day of this submission). Their delay in producing even custodial documents is now beyond

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egregious: this morning, the deposition of one Samsung witness began at 9:00 a.m. Shortly

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thereafter, Samsung produced 476 Korean-language documents from her files. And this evening

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(January 11), Samsung produced 5,287 Korean-language documents (32,469 pages) from the files

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of a witness being deposed in 62 hours.

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13.

I am informed by my litigation team as follows: It would be unduly burdensome,

if not impossible, for Apple to glean the technical information it seeks from Samsung based

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solely on teardowns of publicly-available versions of the accused products or on inspection of

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Samsung’s piecemeal source code production (which does not and cannot show the evolution of

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the accused functionalities in Samsung’s products over time). Samsung’s production of source

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code to date appears to include, at most, just a single version of software for each accused device.

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Samsung has pushed out to consumer devices a number of software updates that have affected

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accused functionalities on Samsung’s products. Information regarding these and other updates is

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practically impossible for Apple to obtain on its own, as Apple cannot “undo” software updates

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that are applied to Samsung’s products. Thus, Apple would lose its ability to analyze an earlier

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version of Samsung’s software on a device each time it wished to assess the impact of an update.

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The various iterations of software updates, rendered obsolete by newer updates and versions of

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the software, are not readily publicly available. This is particularly true for the earlier-released

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accused devices that are no longer actively supported or maintained.

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14.

Attached hereto as Exhibit B is a true and correct copy of correspondence sent by

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counsel for Samsung to counsel for Apple, dated January 3, 2012, regarding Samsung’s

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production of source code and technical documents.

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Attached hereto as Exhibit C is a true and correct copy of a letter sent by counsel

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for Samsung to counsel for Apple, dated December 30, 2011, regarding Samsung’s production of

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additional sketchbooks, CAD, and physical models.

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MAZZA DECLARATION ISO APPLE’S MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND THINGS
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Samsung has a practice of designing a core product, such as the Galaxy S phone,

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and then offering that product under a variety of names with only slight design modifications.

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Attached hereto as Exhibit D are true and correct copies of a printout of a web page discussing

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Samsung’s practice.

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device in this case.

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18.

Samsung has produced models of the F700 mobile phone, which is a non-accused

Samsung is currently running or has recently run advertisements that refer to

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Apple, that mock Apple, or that copy Apple’s ads or use Apple’s actresses, all to trade on Apple’s

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goodwill. Attached hereto as Exhibit E is a collection of true and correct copies of printouts from

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web pages discussing this practice.
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Samsung has made an overbreadth objection to Apple’s request for product

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placement requests. Attached hereto as Exhibit F is a true and correct copy of a letter from

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counsel for Samsung to counsel for Apple dated January 6, 2011, discussing this objection.

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20.

Apple has learned of one survey, sent by Samsung to purchasers of Samsung

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products, concerning customer usage of and preferences for various Apple products, including the

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Apple products at issue. Apple brought this survey to Samsung’s attention on November 29,

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2011, and again on January 6, 2012. Attached hereto as Exhibits G and H are letters from counsel

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for Apple to counsel for Samsung regarding this survey.

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Attached hereto as Exhibit I is a true and correct copy of a letter sent by counsel

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for Samsung to counsel for Apple, dated January 2, 2012, regarding Samsung’s production of

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revenue, sales, pricing, and other financial information..

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22.

Attached hereto as Exhibit J is a true and correct copy of an excerpt of the

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transcript of the December 21, 2011, deposition of Tim Sheppard in In the Matter of Certain

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Electronic Digital Media Devices and Components Thereof, ITC Investigation No. 337-TA-796.

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I declare under penalty of perjury that the foregoing is true and correct. Executed this
11th day of January, 2012, at San Francisco, California.
/s/ Mia Mazza
Mia Mazza
MAZZA DECLARATION ISO APPLE’S MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND THINGS
11-CV-01846-LHK (PSG)
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ATTESTATION OF E-FILED SIGNATURE
I, Michael A. Jacobs, am the ECF User whose ID and password are being used to file this

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Declaration. In compliance with General Order 45, X.B., I hereby attest that Mia Mazza has

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concurred in this filing.

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Dated: January 11, 2012

/s/ Michael A. Jacobs
Michael A. Jacobs

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MAZZA DECLARATION ISO APPLE’S MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND THINGS
11-CV-01846-LHK (PSG)
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