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

Filing 637

Administrative Motion to File Under Seal filed by Apple Inc.. (Attachments: #1 Wheeler Declaration ISO Motion to Seal, #2 Proposed Order ISO Motion to Seal, #3 Bartlett Declaration ISO Opposition to Motion to Enforce, #4 Ex A to Bartlett Decl, #5 Ex B to Bartlett Decl, #6 Ex C to Bartlett Decl, #7 Ex D to Bartlett Decl, #8 Ex E to Bartlett Decl, #9 Ex F to Bartlett Decl, #10 Ex G to Bartlett Decl, #11 Ex H to Bartlett Decl, #12 Ex I to Bartlett Decl, #13 Ex J to Bartlett Decl, #14 Ex K to Bartlett Decl, #15 Opposition to Motion to Enforce, #16 Maselli Decl ISO Opposition to Motion to Compel, #17 Ex A Maselli Decl, #18 Ex B Maselli Decl, #19 Ex C Maselli Decl, #20 Ex D Maselli Decl, #21 Ex E Maselli Decl, #22 Opposition to Motion to Compel, #23 Mazza Declaration ISO Opposition to Motion for Clarification, #24 Ex A Mazza Decl, #25 Ex B Mazza Decl, #26 Ex C Mazza Decl)(Jacobs, Michael) (Filed on 1/17/2012)

Exhibit B

quinn emanuel

trial lawyers | los angeles

865 South Figueroa Street, 10th Floor, Los Angeles, California 90017-2543 | TEL: [phone] FAX: [phone]

January 2, 2012
VIA E-MAIL
Mia Mazza
Morrison & Foerster
425 Market Street
San Francisco, CA 94105-2482
Re:

Apple v. Samsung Electronics, et al., No. 5:11-cv-01846-LHK (N.D.Cal.)

Dear Mia:
I write regarding Apple’s continuing failure to produce documents and materials that Samsung
has been requesting for weeks – and, in many cases, much longer. In light of Apple’s refusal to
provide these materials – or to engage in good faith meet and confer discussions regarding these
issues – Samsung anticipates that it will be required to file a motion to compel on issues that
cannot be resolved by or before the lead counsel in-person meet and confer currently set to take
place on January 5, 2012. Samsung hopes to avoid having to file such a motion and hopes that
Apple will agree to produce the requested materials so as to make such a motion unnecessary. In
order to avoid motion practice, Samsung needs Apple’s firm commitment that it will provide the
following categories of documents by a date certain as set forth below.
Source Code and Technical Documents
For several weeks now, Samsung has demanded that Apple produce source code and technical
documents responsive to Samsung’s requests for production. (See December 2, 2011 Letter from
Chan to Overson.) The documents, which go directly to applications and accused functionalities
of the accused Apple products, are essential to Samsung’s case. Yet, despite admitting nearly a
quinn emanuel urquhart & sullivan, llp
LOS ANGELES | 865

South Figueroa Street, 10th Floor, Los Angeles, California 90017-2543 | TEL [phone] FAX [phone]
Madison Avenue, 22nd Floor, New York, New York 10010-1601 | TEL [phone] FAX [phone]
SAN FRANCISCO | 50 California Street, 22nd Floor, San Francisco, California 94111-4788 | TEL [phone] FAX [phone]
CHICAGO | 500 W. Madison Street, Suite 2450, Chicago, Illinois 60661-2510 | TEL [phone] FAX [phone]
NEW YORK | 51

WASHINGTON, DC | 1299
LONDON | 16

Pennsylvania Avenue NW, Suite 825, Washington, District of Columbia 20004-2400 | TEL [phone]

FAX (202)

Old Bailey, London EC4M 7EG, United Kingdom | TEL [phone] FAX [phone]
TOKYO | NBF Hibiya Building, 25F, 1-1-7, Uchisaiwai-cho, Chiyoda-ku, Tokyo 100-0011, Japan | TEL [phone] FAX [phone]
MANNHEIM | Erzbergerstraße 5, 68165 Mannheim, Germany | TEL [phone] FAX [phone]
MOSCOW | Voentorg Building, 3rd Floor, 10 Vozdvizhenka Street, Moscow 125009, Russia | TEL [phone] FAX [phone]

538-8100

month ago that it was “prepared” to produce source code for all Apple accused products, Apple
has failed to produce these materials for inspection or provide a firm date for their production.
Thus, while Samsung has made available its source code to Apple, Apple has intentionally
withheld documents responsive to Samsung’s requests for production.
Apple’s ongoing failure to produce source code is inexcusable. Because the parties have already
exchanged several letters and have met and conferred on this issue, please confirm in writing by
the end of the day today that Apple will complete its production of all source code and technical
documents outlined in Melissa Chan’s letter of December 2, 2011, as well as Samsung RFP Nos.
39, 195, 196, 200, 202, 205, 207-210, and 212-218, by no later than January 10, 2012.
“Samsung” Documents
In Wesley Overson’s latter of November 15, 2011, Apple made a commitment to search the files
of its designers, engineers, marketing custodians and all relevant central files for the term
“Samsung” and related terms. Mia Mazza’s letter of December 5, 2011 further confirmed that
Apple agreed to search for “Samsung,” any Samsung product at issue, and any aliases related
thereto. Apple cannot justify any further delay in complying with the terms of the parties’
reciprocal agreement. Over a month has passed since Apple’s commitment, and Apple has
failed to produce these documents despite repeated requests in letters and during the parties’
meet and confer discussions.
Please confirm in writing by the end of the day today that Apple will complete its production of
relevant documents from this search by no later than January 10, 2012. Please also confirm that
Apple’s searches will include the terms “Android” and “Droid,” as these are logical alias terms
that Apple custodians may have used to refer to Samsung’s products or features of Samsung’s
products.
Surveys and Marketing Documents
Samsung has also requested that Apple produce documents responsive to Samsung’s requests
directed at the market for Apple’s products, including consumer surveys, focus groups and other
marketing-related documents. (See December 3, 2011, letter from Kassabian to Mazza and
Walden.) As we have previously discussed, these documents are responsive to discovery
requests that Samsung propounded as early as August. (See, e.g, RFP Nos. 29, 44, 130, 147,
148, 162, 163, 165, 169, 170, 177, 178, 190, 191, and 249.) With respect to Samsung’s
defensive case, these documents may show functionality of the asserted designs, competitive
analysis or copying of Samsung or other products, and other relevant information. With respect
to Samsung’s offensive case, these documents are necessary to adequately question witnesses,
including in upcoming depositions, regarding marketing, consumer feedback on the accused
features, damages, and other essential issues. Despite Apple’s previously acknowledgements
that this is a reciprocal document category, Apple has failed to produce such documents or
commit to production by a date certain.
Again, because the parties have discussed this issue at length in correspondence and have met
and conferred several times on this issue, please confirm by the end of the day today that Apple

2

will complete its production of all documents responsive to these requests by no later than
January 10, 2012.
Financial Documents
Samsung has requested certain financial documents related to the patents-in-suit and products at
issue in this case. (See Samsung RFPs Nos. 6-8, 25, 29, 42-44, 54-55, 69, 116, 130-134, 175,
252-54.) These documents are important for damages analysis as well as other issues, including
demonstrating when certain products were introduced into the market. Again, unlike Apple’s
overbroad requests, which include irrelevant requests for sales and financial data outside of the
U.S., Samsung has requested a narrow and specific set of highly relevant documents for
production. Again, despite discussing this issue during the parties’ last meet and confer, Apple
has failed to produce these documents. Samsung demands that Apple confirm by the end of the
day today that it will complete its production of these documents by January 10, 2012.
*******
In an effort to avoid unnecessary motion practice, Samsung hopes that Apple will commit to
production of these documents without further delay. Please let us know by the end of today, if
you will commit to production of these documents by January 10, 2012. Otherwise, these items
will be included on the lead counsel meet and confer agenda scheduled for January 5 and
Samsung will move to compel production of these items.

Kind regards,
/s/
Diane C. Hutnyan

3