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

Filing 648

Declaration of Cyndi Wheeler in Support of #602 Administrative Motion to File Under Seal re Samsung's January 10, 2012 Filings filed byApple Inc.. (Attachments: #1 Exhibit 1, #2 Exhibit 2, #3 Exhibit 3, #4 Exhibit 4, #5 Exhibit 5, #6 Exhibit 6, #7 Exhibit 7, #8 Exhibit 8, #9 Exhibit 9, #10 Exhibit 10, #11 Exhibit 11, #12 Exhibit 12, #13 Exhibit 13, #14 Exhibit 14, #15 Exhibit 15, #16 Exhibit 16, #17 Exhibit 17, #18 Proposed Order)(Related document(s) #602 ) (Hung, Richard) (Filed on 1/18/2012)

1
2
3
4
5
6
7
8
9

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]

10
11
12

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]

Attorneys for Plaintiff and
Counterclaim-Defendant APPLE INC.

13
14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

SAN JOSE DIVISION

17
18

APPLE INC., a California corporation,

19
20
21
22
23
24
25

Plaintiff,
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,

Case No.

11-cv-01846-LHK

DECLARATION OF
CYNDI WHEELER IN SUPPORT
OF SAMSUNG’S
ADMINISTRATIVE MOTION TO
FILE DOCUMENTS UNDER
SEAL

Defendants.

26
27
28
DECLARATION OF CYNDI WHEELER ISO SAMSUNG’S ADMINISTRATIVE MOTIONS TO FILE UNDER SEAL
CASE NO. 11-cv-01846-LHK
sf-3095037

1

I, Cyndi Wheeler, do hereby declare as follows:

2

1.

I am an attorney for Apple Inc. (“Apple”). I submit this declaration in support of

3

Samsung’s Administrative Motion to File Documents Under Seal. [Dkt. No. 602.] Unless

4

otherwise indicated, I have personal knowledge of the matters set forth below. If called as a

5

witness I could and would testify competently as follows.

6

2.

Samsung’s Motion to Compel, the Declaration of Diane C. Hutnyan in Support of

7

Samsung’s Motion to Compel (“Hutnyan Declaration ISO MtC”), and exhibits attached to the

8

Hutnyan Declaration ISO MtC contain Apple-confidential material. (See Declaration of Bill Trac

9

in Support of Samsung’s Administrative Motion to File Documents Under Seal [Dkt. No. 602-1])

10

(“Trac Declaration.”) Specifically:

11

Exhibit A to the Hutnyan Declaration ISO MtC consists of a letter with

12

references to mechanical outlines (MCOs), the number of physical design

13

models that Apple possesses, a license relationship with a third party, and

14

internal Apple code names for its products. A proposed redacted version is

15

attached hereto as Exhibit 1.

16

Exhibit D to the Hutnyan Declaration ISO MtC consists of Apple’s Objections

17

and Responses to Samsung’s First Set of Requests for Admission and was

18

designated CONFIDENTIAL under the interim protective order as certain of

19

Apple’s responses and objections contain technical information regarding the

20

functionality of Apple’s products relating to baseband processors. This

21

information is not publicly available and could be used by Apple’s competitors

22

to its disadvantage. A proposed redacted version is attached hereto as Exhibit

23

2.

24

Exhibits K and L to the Hutnyan Declaration ISO MtC consist of, respectively,

25

a large selection from the deposition of a senior design executive at Apple, and

26

a letter discussing statements made at the executive’s deposition. The

27

deposition and letter contain discussions of Apple’s product development

28

processes for iPhone and iPad across industrial design and engineering

DECLARATION OF CYNDI WHEELER ISO SAMSUNGS ADMINISTRATIVE MOTION TO FILE UNDER SEAL
CASE NO. 11-cv-01846-LHK
sf-3095037

1

1

disciplines, Apple internal structure and workflow, and alternate designs

2

created and considered during the development of the iPhone and iPad. These

3

topics reveal confidential information about Apple’s product development and

4

design strategy. With the exception of lines 62:7-10 and 69:19-25, the entirety

5

of Exhibit K should be filed under seal. The entirety of Exhibit L should be

6

filed under seal. A proposed redacted version of Exhibit K is attached hereto

7

as Exhibit 3.

8

Exhibit M to the Hutnyan Declaration ISO MtC consists of excerpts from the

9

deposition of an Apple designer. The excerpts contain discussion of Apple’s

10

internal product development process for the iPhone graphical user interface.

11

This discussion reveals confidential information about Apple’s product

12

development and design strategy. The entirety of Exhibit M should be filed

13

under seal.

14

Exhibit N to the Hutnyan Declaration ISO MtC consists of a letter that names a

15

specific server on which an Apple custodian stores documents and selections

16

from a deposition discussing manufacturing information, schematics, and code

17

possessed by Apple and an entity that was acquired by Apple. This

18

confidential information reveals Apple’s business practices, development

19

strategy, manufacturing details, and information about Apple’s data storage. A

20

proposed redacted version of Exhibit N is attached hereto as Exhibit 4.

21

Exhibits P and Y to the Hutnyan Declaration ISO MtC consist of letters

22

discussing the confidential work of Apple’s Industrial Design group and

23

internal code names. This information reveals confidential information about

24

Apple’s business practices and design group. Proposed redacted versions are

25

attached hereto as Exhibits 5 and 6.

26

Exhibit Q to the Hutnyan Declaration ISO MtC consists of a letter discussing

27

information regarding Apple’s advertising decisions that Samsung obtained

28

from a deposition. The details reveal Apple’s business practices, in particular

DECLARATION OF CYNDI WHEELER ISO SAMSUNGS ADMINISTRATIVE MOTION TO FILE UNDER SEAL
CASE NO. 11-cv-01846-LHK
sf-3095037

2

1

Apple’s advertising strategies. A proposed redacted version of Exhibit Q is

2

attached hereto as Exhibit 7.

3

Exhibits S and T to the Hutnyan Declaration ISO MtC consist of excerpts from

4

depositions containing discussions of Apple’s internal product development

5

processes for iPhone and iPod. These discussions reveal confidential

6

information about Apple’s product development and design strategy. The

7

entirety of Exhibits S and T should be filed under seal.

8

Exhibits U, W, and Z to the Hutnyan Declaration ISO MtC consist of letters

9

that contain references to internal Apple code names for its products. In

10

addition, Exhibit W contains a number of search terms for internal Apple

11

documents that were devised from confidential business, product development,

12

and design information to collect responsive documents, many of which will

13

themselves be confidential. These terms are non-public and were revealed to

14

Samsung’s counsel under a confidentiality designation in the interest of

15

discovery transparency. Proposed redacted versions of Exhibits U, W, and Z

16

are attached as Exhibits 8, 9, and 10, respectively.

17

Samsung’s Motion to Compel and the Hutnyan Declaration ISO MtC should

18

be filed under seal to the extent they refer to the above-referenced confidential

19

information.

20
21
22

3.

Apple does not maintain a claim of confidentiality on Exhibits B, J, O, P, R, V, X,

Y, AA, BB, or CC to the Hutnyan Declaration ISO MtC.
4.

Exhibit C to the Declaration of Diane C. Hutnyan in Support of Samsung’s

23

Renewed Motion to Compel (“Hutnyan Declaration ISO RMtC”) contains Apple-confidential

24

information. (See Trac Declaration.) Specifically, it consists of a letter that contains references

25

to internal Apple code names for its products and a reference to the confidential work of Apple’s

26

Industrial Design group. A proposed redacted version of Exhibit C is attached as Exhibit 11.

27
28

DECLARATION OF CYNDI WHEELER ISO SAMSUNGS ADMINISTRATIVE MOTION TO FILE UNDER SEAL
CASE NO. 11-cv-01846-LHK
sf-3095037

3

1

5.

Apple does not maintain a claim of confidentiality on Samsung’s Renewed Motion

2

to Compel, the Hutnyan Declaration ISO RMtC, or Exhibits A or B to the Hutnyan Declaration

3

ISO RMtC.

4

6.

Samsung’s Motion to Enforce Various Court Orders, the Declaration of Diane C.

5

Hutnyan in Support of Samsung’s Motion to Enforce Various Court Orders (“Hutnyan

6

Declaration ISO MtE”), and exhibits attached to the Hutnyan Declaration ISO MtE contain

7

Apple-confidential information. (See Trac Declaration.) Specifically:

8

Exhibit C to the Hutnyan Declaration ISO MtE consists of an excerpt from the

9

deposition of a senior design executive at Apple. The deposition contains a

10

discussion of Apple’s product development processes for iPhone and iPad

11

across both industrial design and engineering disciplines and Apple internal

12

structure and workflow. These topics reveal confidential information about

13

Apple’s product development and design strategy. The entirety of Exhibit C

14

should be filed under seal.

15

Exhibit D to the Hutnyan Declaration ISO MtE is identical to Exhibit A to the

16

Hutnyan Declaration ISO MtC. As discussed above, this exhibit consists of a

17

letter with references to Apple’s design practices, the specific number of

18

physical design models that Apple possesses, a license relationship with a third

19

party, and internal Apple code names for its products. The proposed redacted

20

version attached as Exhibit 1 also covers the portions of this exhibit that

21

should be filed under seal.

22

Samsung’s Motion to Enforce Various Court Orders should be filed under seal

23

to the extent it refers to the above-referenced confidential information.

24
25
26

7.

Apple does not maintain a claim of confidentiality on Exhibits F or I to the

Hutnyan Declaration ISO MtE.
8.

Samsung’s Motion for Clarification, the Declaration of Brett Arnold in Support of

27

Samsung’s Motion for Clarification (“Arnold Declaration”), and exhibits attached to the Arnold

28

Declaration contain Apple-confidential information. (See Trac Declaration.) Specifically:

DECLARATION OF CYNDI WHEELER ISO SAMSUNGS ADMINISTRATIVE MOTION TO FILE UNDER SEAL
CASE NO. 11-cv-01846-LHK
sf-3095037

4

1

Exhibits A-D to the Arnold Declaration consist of internal Apple documents

2

discussing Apple designs and testing, project specifications, code names, and

3

potential project specifications. These documents include e-mails and reports.

4

The confidential information in these documents reveals Apple’s business

5

practices, design and development practices, and strategy discussions and

6

decisions. These exhibits should be sealed in their entirety.

7

Exhibits E and F to the Arnold Declaration consist of photographs of Apple

8

Model 035. The photographs of Apple Model 035 have been the subject of

9

considerable briefing before the Court and a Court Order. (See Order Granting

10

in Part Samsung’s Motion to Compel [Dkt. No. 536.] at 3) (“December 22,

11

2011 Order.”) As the Court noted in its December 22, 2011 Order, Apple may

12

maintain its confidentiality designations on those photos that display details

13

that were not disclosed in earlier patent filings. (Id.) The Court suggested in a

14

footnote that photographs “taken close-up and at an angle” were an example of

15

such “additional detail” by commenting that it did not see “additional” details

16

but for those taken close-up and at an angle (Id. n.3.) Exhibit E consists solely

17

of photographs taken close-up and at an angle. These photographs reveal

18

significant details of one of Apple’s unreleased design models and, consistent

19

with the Court’s Order, should be filed entirely under seal. Moreover, as

20

Apple set forth in its Opposition to Samsung’s Motion to Enforce Various

21

Court Orders, filed January 17, 2011, size and scale information are not present

22

in any photographs that have been publicly filed, and thus reveal additional

23

details in one of Apple’s unreleased design models that should not be released

24

to the public. A proposed public redacted version of Exhibit F with this

25

additional size and scale information removed is attached as Exhibit 12.

26

Exhibit G to the Arnold Declaration consists of a confidential declaration

27

submitted to the Court by a Senior Director of Industrial Design at Apple. This

28

declaration describes Apple’s design process, discusses specifics of the design

DECLARATION OF CYNDI WHEELER ISO SAMSUNGS ADMINISTRATIVE MOTION TO FILE UNDER SEAL
CASE NO. 11-cv-01846-LHK
sf-3095037

5

1

and development process behind iPhone and a design patent, and includes a

2

number of CAD files as exhibits. CAD files are the most heavily protected

3

type of design document at Apple, as they reveal Apple’s designs and design

4

decisions in great detail with multiple views and a high degree of specificity.

5

These files are so confidential that they are produced for inspection at a third

6

party escrow facility, rather than directly to Samsung. Exhibit G should be

7

filed under seal in its entirety.

8

Exhibit H to the Arnold Declaration consists of a design patent with

9

handwriting from a member of Apple’s Industrial Design team. The Apple

10

employee’s written commentary reveals Apple’s confidential internal views on

11

and interpretation of the patent at issue. A proposed redacted version of

12

Exhibit H is attached as Exhibit 13.

13

Samsung’s Motion for Clarification and the Arnold Declaration should be filed

14

under seal to the extent they refer to the above-referenced confidential

15

information. In particular, the Arnold Declaration refers to the number of

16

design models that Apple possesses, a fact that is also addressed in connection

17

with Exhibit A to the Hutnyan Declaration ISO MtC as discussed above, which

18

provides information on Apple’s design strategies and product development.

19
20
21

9.

Apple does not maintain a claim of confidentiality on Exhibits I or J to the Arnold

Declaration.
10.

Samsung’s Motion for a Protective Order and exhibits attached to the Declaration

22

of Diane C. Hutnyan in Support of Samsung’s Motion for a Protective Order (“Hutnyan

23

Declaration ISO MPO”) contain Apple-confidential information. (See Trac Declaration.)

24

Specifically:

25

Exhibits B, C, D, and K to the Hutnyan Declaration ISO MPO contain internal

26

Apple e-mail discussions between high-level Apple executives forwarding

27

third-party articles for discussion and, in the case of Exhibits D and K, adding

28

commentary. The identities of Apple executives who chose to forward certain

DECLARATION OF CYNDI WHEELER ISO SAMSUNGS ADMINISTRATIVE MOTION TO FILE UNDER SEAL
CASE NO. 11-cv-01846-LHK
sf-3095037

6

1

pieces of material for discussion, their e-mail addresses, and their commentary

2

are all highly confidential. This information reveals Apple’s strategic

3

discussions at the highest levels and contact information for the highest Apple

4

personnel. Proposed redacted versions of Exhibits B, C, D, and K to the

5

Hutnyan Declaration ISO MPO are attached as Exhibits 14, 15, 16, and 17,

6

respectively.

7

Exhibits E-J to the Hutnyan Declaration ISO MPO consist of internal

8

documents revealing design, development, and testing decisions and

9

discussions. Exhibit E is an internal slide deck with discussion points on iPad

10

2. Exhibit F is an internal talking points list for a senior design executive

11

regarding iPad 2. Exhibit G is an internal Apple report summarizing a

12

potential project specification. Exhibit H and I are an internal slide deck for

13

presentation to senior Apple executives and an internal project specification

14

discussing a then pre-release project and concept model. Exhibit J is an

15

internal e-mail discussing design and testing. Each of these exhibits reveals

16

confidential information regarding Apple’s confidential designs and product

17

development practices. These exhibits should be sealed in their entirety.

18

Samsung’s Motion for a Protective Order should be filed under seal to the

19

extent it incorporates confidential information from the above documents,

20

including for example Apple’s confidential internal code names.

21

11.

22

ISO MPO.

23

12.

Apple does not maintain a claim of confidentiality on the Hutnyan Declaration

It is Apple’s policy not to disclose or describe its confidential design, trade secrets,

24

product development, or business practices to third parties. The above information is confidential

25

to Apple. It is indicative of the way that Apple manages its business affairs, designs its products

26

and conducts product development. The above documents that contain internal Apple code

27

names reveal information that Apple uses to maintain confidentiality with respect to its entire

28

design and development process. If disclosed, the information in the materials described above

DECLARATION OF CYNDI WHEELER ISO SAMSUNGS ADMINISTRATIVE MOTION TO FILE UNDER SEAL
CASE NO. 11-cv-01846-LHK
sf-3095037

7

1

could be used by Apple’s competitors to Apple’s disadvantage. The requested relief is necessary

2

and narrowly tailored to protect the confidentiality of this information.

3

I declare under the penalty of perjury under the laws of the United States of America that

4

the forgoing is true and correct to the best of my knowledge and that this Declaration was

5

executed this 18th day of January, 2012, at Cupertino, California.

6
7

Dated: January 18, 2012

By: /s/ Cyndi Wheeler ___________
Cyndi Wheeler

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

DECLARATION OF CYNDI WHEELER ISO SAMSUNGS ADMINISTRATIVE MOTION TO FILE UNDER SEAL
CASE NO. 11-cv-01846-LHK
sf-3095037

8

1

ATTESTATION OF E-FILED SIGNATURE

2

I, Richard S.J. Hung, am the ECF User whose ID and password are being used to file this

3

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

4

concurred in this filing.

5

Dated: January 18, 2012

6

By:

/s/ Richard S.J. Hung
Richard S.J. Hung

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

DECLARATION OF CYNDI WHEELER ISO SAMSUNGS ADMINISTRATIVE MOTION TO FILE UNDER SEAL
CASE NO. 11-cv-01846-LHK
sf-3095037

9