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

Filing 633

OPPOSITION to ( #602 Samsung's MOTION for Clarification Regarding the Court's December 22, 2011 Order re Samsung's January 10, 2012 Filings filed by Apple Inc.. (Attachments: #1 Proposed Order)(Jacobs, Michael) (Filed on 1/17/2012) Modified text on 1/18/2012 (dhm, 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]

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., a California corporation,
Plaintiff,

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v.
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,

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Case No.

11-cv-01846-LHK (PSG)

APPLE’S OPPOSITION TO
SAMSUNG’S MOTION FOR
CLARIFICATION REGARDING
THE COURT’S DECEMBER 22,
2011 ORDER
Date:
Time:
Place:
Judge:

January 19, 2012
10:00 a.m.
Courtroom 5, 4th Floor
Hon. Paul S. Grewal

Defendants.
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APPLE’S OPP. TO SAMSUNG’S MOT. FOR CLARIFICATION RE: DEC. 22, 2011 ORDER
CASE NO. 11-CV-01846-LHK (PSG)
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I.

INTRODUCTION
There is nothing in the Court’s December 22, 2011 Order that requires clarification.

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Samsung identified four categories of documents that it wished to show its expert, Itay Sherman,

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and those four categories were the subject of the Court’s Order. Samsung cannot now complain

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that it needs the Court’s assistance to understand the boundaries of the categories set forth in

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Samsung’s own papers. Moreover, there is no ambiguity regarding the additional categories of

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confidential documents that it wishes to provide to Mr. Sherman—Samsung admits that these

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additional categories do not fall within the scope of relief granted by the Sherman Order.
Samsung is really seeking reconsideration of the Sherman Order. It fails to comply with

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the requirements for filing such a motion, however. In addition, the categories of documents that

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Samsung seeks to show Mr. Sherman raise exactly the same risk of competitive harm that led the

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Court to deny a portion of the relief sought in the previous motion.
For these reasons, the Court should deny Samsung’s motion.

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II.

ARGUMENT

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A.

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There is nothing remotely ambiguous in the Court’s December 22 Order (“Sherman

Nothing in the December 22 Order Requires Clarification.

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Order”). That Order granted Samsung’s motion with respect to 3 specific categories of materials

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(CAD files, design patent inventor sketchbooks, and design inventor deposition transcripts) and

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denied the motion with respect to a fourth category (presentations and other internal documents).

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(Dkt. No. 535.) The four document categories that were the subject of the Sherman Order were

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the same four document categories identified in Samsung’s motion. (Dkt. No. 482 at 4-5.) As the

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author of those categories, it is preposterous for Samsung to suggest that they are somehow

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unclear and require the Court to interpret them for Samsung.

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Nor is there any ambiguity as to whether the additional categories listed in the current

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motion fall within the categories approved by the Court in the Sherman Order. Indeed, Samsung

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admits that they do not. (Samsung Mot. at 2 (Sherman Order “did not address these [additional]

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categories”).) Since Samsung does not and cannot identify anything in the Sherman Order that

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requires clarification, its motion should be denied.
APPLE’S OPP. TO SAMSUNG’S MOT. FOR CLARIFICATION RE: DEC. 22, 2011 ORDER
CASE NO. 11-CV-01846-LHK (PSG)
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B.

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Samsung Seeks Reconsideration of the Court’s December 22 Order, but
Makes No Attempt to Comply With the Requirements of a Motion for
Reconsideration.

Samsung asserts that its previous motion sought a broader range of relief than the

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categories that were the subject of the Sherman Order. (Samsung Mot. at 4 (stating that the

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previous motion sought permission to show Mr. Sherman “any documents, depositions, and other

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materials related to Apple’s designs and design patents, excluding any documents discussing

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Apple’s multi-touch technology”).) In essence, Samsung argues that the Court erred in limiting

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its analysis to the categories discussed in the Sherman Order, and now asks the Court to allow Mr.

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Sherman access to additional categories which (according to Samsung) were also sought by its

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previous motion. This is a motion for reconsideration, and as such is governed by the

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requirements set forth under Local Rule 7-9.

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Samsung fails to comply with those requirements. First, Samsung failed to seek and

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obtain leave of the Court for filing a motion for reconsideration. See Civ. L.R. 7-9(a) (“No party

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may notice a motion for reconsideration without first obtaining leave of Court to file the

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motion”).

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Second, Samsung does not even attempt to make the showing required under Local Rule

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7-9(b), which requires a party seeking reconsideration to show: (a) that a material difference in

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fact or law exists from that which was presented to the Court, and that the party did not know

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such law or fact at the time of the previous motion despite reasonable diligence; or (b) new

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material facts or a change of law after the order; or (c) a manifest failure by the Court to consider

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material facts or dispositive legal arguments which were presented to the Court. Civ. L.R. 7-9(b).

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Samsung points to no new facts or law and does not suggest that the arguments and facts

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presented in its current motion were previously presented to the Court. Samsung only argues that

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the Court misread the scope of relief sought by the previous motion. This is not a ground for

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reconsideration under the Northern District Local Rules. On this basis alone, the Court should

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deny Samsung’s motion.

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APPLE’S OPP. TO SAMSUNG’S MOT. FOR CLARIFICATION RE: DEC. 22, 2011 ORDER
CASE NO. 11-CV-01846-LHK (PSG)
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C.

The Relief Sought by the Motion Does Not Comport With the Court’s
Reasoning in the Sherman Order.

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To the extent that the Court considers the additional document categories sought by

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Samsung’s motion, it should deny Samsung’s request to allow Mr. Sherman access to them. Mr.

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Sherman is the CEO of a multi-touch technology company that directly competes with Apple. In

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its previous motion, Samsung asserted that Mr. Sherman’s review of Apple’s documents would

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not pose a risk of competitive harm to Apple because Samsung would show him documents

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relating only to design, not technology. At the hearing on the motion, the Court responded to that

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point by observing that, according to one of Samsung’s own witnesses, the line between design

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and technology is “pretty blurry when you get down to specific instances of whether someone

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should look at the document or not.” (Mazza Decl. Ex. A at 54:11-15.)

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Consistent with this point, the Court held that Mr. Sherman could review only those

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“design-related materials that bear insufficient risk of revealing utility-side details that would

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benefit Sherman’s work with DoubleTouch.” (Dkt. No. 535 at 3.) The category of “presentations

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and other internal documents showing that design features are functional” did not satisfy this

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standard because the category was “ambiguous” and “suggests material of a nature that is not

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strictly design-oriented and that may contain input from a broader range of Apple’s people and

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processes.” (Id. at 4.)

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That reasoning applies to each of the categories identified in Samsung’s motion:

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Internal design team emails that relate to phone, music player, and table designs. This

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category is no less ambiguous than the “presentations and other internal documents” category

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rejected in the Sherman Order. Moreover, like that rejected category, it covers a wide range of

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material that “is not strictly design-oriented.”

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Exhibits from depositions of design patent inventors. As noted above, it is indisputable

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that none of these documents fall within the scope of relief granted in the Sherman Order.

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Nevertheless, Apple agrees to allow Mr. Sherman to review the confidential portions of the Reply

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Declaration of Christopher in Support of Apple’s Motion for a Preliminary Injunction, excluding

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the exhibits thereto.
APPLE’S OPP. TO SAMSUNG’S MOT. FOR CLARIFICATION RE: DEC. 22, 2011 ORDER
CASE NO. 11-CV-01846-LHK (PSG)
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The remainder of this category clearly contains material precluded by both the letter and

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spirit of the Sherman Order. The category includes “presentations about design functionality”

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(Samsung Mot. at 5), which falls squarely in the category rejected in the Sherman Order. For

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example, one such presentation contains 73 pages of highly detailed technical information

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regarding the iPhone, including schematics showing the physical structure of the iPhone

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touchscreen. (Mazza Decl. Ex. C.) This category also includes emails and photographs which

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could similarly “reveal[] utility-side details that would benefit Sherman’s work” for Apple

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competitors. (Dkt. No. 535 at 3.) For example, one such email contains detailed technical

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schematics revealing the physical compositions of what appear to be touchscreens for Apple

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devices. (Mazza Decl. Ex. B)
As for any purported public documents in this category, Samsung is free to request or
move for de-designation of such documents.
Apple’s models and prototypes. This category clearly crosses the line between design and

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functionality. Mr. Sherman would be able to study, analyze, and digest not just pure design

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information, but actual hardware. There can be no doubt that this would allow him to glean

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details of the hardware’s functionality that could benefit his multi-touch company.

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Declarations by Apple’s design inventors and deposition transcripts and declarations of

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Apple’s design experts. As noted, it is indisputable that none of these documents fall within the

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scope of relief granted in the Sherman Order. Nevertheless, Apple agrees to allow Mr. Sherman

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to review the confidential portions of the declarations of its design inventors that have been filed

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to date, excluding confidential exhibits. Apple further agrees to allow Mr. Sherman to review the

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confidential portions of the deposition transcript of Cooper Woodring, excluding confidential

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exhibits. Mr. Woodring is the only Apple design expert who has provided written or oral

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testimony in this case to date.

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As for documents in this category that do not currently exist, such as any future written or

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oral testimony from Peter Bressler or Apple’s design inventors, the Court should deny Samsung’s

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motion. There is no way of knowing what any future declarations or transcripts may reveal about

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utility-side details of Apple’s products. Such future material, like the documents rejected by the
APPLE’S OPP. TO SAMSUNG’S MOT. FOR CLARIFICATION RE: DEC. 22, 2011 ORDER
CASE NO. 11-CV-01846-LHK (PSG)
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Court in the Sherman Order, may very well be “of a nature that is not strictly design-oriented and

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that may contain input from a broader range of Apple’s people and processes.” (Dkt. No. 535 at

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3.)

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D.

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The Court Should Reject Samsung’s Request for “Clarification” That the
Sherman Order is Without Prejudice to Further Motions.

As discussed above, Samsung had admitted that its previous motion sought the Court’s

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permission to show Mr. Sherman “any documents, depositions, and other materials related to

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Apple’s designs and design patents, excluding any documents discussing Apple’s multi-touch

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technology.” (Samsung Mot. at 4.) That broad description clearly encompasses discovery

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material that Apple may produce in the future. The Court denied Samsung’s previous motion,

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with the sole exception of the three categories set forth in the Sherman Order. Thus, if Samsung

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wishes to show Mr. Sherman any confidential design material that was not discussed in the

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Sherman Order—including the categories requested by its current motion, and including any

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future discovery materials—it must seek the Court’s leave to move for reconsideration of the

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Sherman Order. It cannot bypass that procedure, which is mandated by this District’s Local

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Rules, by seeking advance permission to revisit those issues whenever it pleases.

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III.

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CONCLUSION
For the reasons discussed above, the Court should deny Samsung’s motion.

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Dated: January 17, 2012

MORRISON & FOERSTER LLP

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By:

/s/ Michael A. Jacobs
MICHAEL A. JACOBS
Attorneys for Plaintiff
APPLE INC.

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APPLE’S OPP. TO SAMSUNG’S MOT. FOR CLARIFICATION RE: DEC. 22, 2011 ORDER
CASE NO. 11-CV-01846-LHK (PSG)
sf-3093770

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