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

Filing 683

Declaration of Mia Mazza in Support of #682 MOTION to Compel Apple's Motion to Compel Timely Production of Foreign-Language and Other Documents in Advance of Related Depositions filed byApple Inc.. (Attachments: #1 Exhibit A)(Related document(s) #682 ) (Jacobs, Michael) (Filed on 1/27/2012)

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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]

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.,
Defendants.

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Case No.

11-cv-01846-LHK (PSG)

DECLARATION OF MIA MAZZA
IN SUPPORT OF APPLE’S
MOTION TO COMPEL TIMELY
PRODUCTION OF FOREIGNLANGUAGE AND OTHER
DOCUMENTS IN ADVANCE OF
RELATED DEPOSITIONS
Date:
Time:
Place:
Judge:

February 1, 2012
10:00 a.m.
Courtroom 5, 4th Floor
Hon. Paul S. Grewal

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MAZZA DECL. ISO APPLE’S MOT. TO COMPEL TIMELY PRODUCTION OF DOCUMENTS IN ADVANCE OF DEPOSITIONS
CASE NO. 11-CV-01846-LHK (PSG)

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I, Mia Mazza, declare as follows:

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1.

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,

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I 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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Timely Production of Foreign-Language and Other Documents in Advance of Related

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Depositions.

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2.

Samsung deposed all of Apple’s inventors and patent prosecutors in October

2011. For purposes of those depositions the parties had agreed to produce relevant, responsive,

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non-privileged documents from each inventor’s or prosecutor’s files no later than five days before

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his or her deposition. With a few isolated exceptions of a small number of late-discovered

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documents produced three or four days in advance, Apple abided by this “five-day rule.” All of

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Apple’s documents were in English.

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3.

Apple typically finished producing documents on the fifth day before the

deposition was to take place, no fewer than 105 hours before the deposition began.
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After purportedly finishing its preliminary injunction production on October 12,

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2011, Samsung stopped producing documents relevant to Apple’s offensive case until

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December 7, 2011.

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5.

The chart below summarizes recent document productions by Samsung for its

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witnesses whose depositions were taken by Apple in the past two weeks. The chart shows the

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name of each witness, the scheduled deposition start time, date(s) that Samsung produced

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documents from the witness’s files, the volume of the production, and the approximate time in

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advance of the deposition that the production was received by Apple.

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[Continued on next page]

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MAZZA DECL. ISO APPLE’S MOT. TO COMPEL TIMELY PRODUCTION OF DOCUMENTS IN ADVANCE OF DEPOSITIONS
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Witness

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Ahyoung Kim
Ahyoung Kim

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Ahyoung Kim

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Ahyoung Kim
Bo-ra Kim

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Wookyun Kho
Junho Park
Junho Park
Nara Cho
Tim Sheppard

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Tim Sheppard

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Justin Denison

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Justin Denison

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Brian
Rosenberg

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Brian
Rosenberg

N.D. Cal.
Depo Date (9
a.m.)
Wednesday,
January 11,
2012
Wednesday,
January 11,
2012
Wednesday,
January 11,
2012
Wednesday,
January 11,
2012
Wednesday,
January 11,
2012
Thursday,
January 12,
2012
Saturday,
January 14,
2012
Saturday,
January 14,
2012
Saturday,
January 14,
2012
Tuesday,
January 24,
2012
Tuesday,
January 24,
2012
Wednesday,
January 25,
2012
Wednesday,
January 25,
2012
Thursday,
January 26,
2012
Thursday,
January 26,
2012

Production
Date(s)

No. Docs

No. Pgs

Comments
(Language)

January 9
(1:11 a.m.)

251

1,610

January 9
(6:49 p.m.)

4,158

30,720

January 10
(12:23 a.m.)

837

9,513

January 11
(9:42 a.m.)

476

3,069

January 7
7:41 p.m.

161

4,607

January 7
7:41 p.m.

31

844

January 11
6:40 p.m.

5,284

32,469

January 12
11 a.m.

2,163

20,135

January 10
11:49 a.m.

488

10,046

January 18
5:24 p.m.
PST
January 20
9:48 p.m.
PST

74

2,428

5,256

35,011

56 hours in
advance
(Korean)
39 hours in
advance
(Korean)
9 hours in
advance
(Korean)
40 minutes
after depo
started
(Korean)
86 hours in
advance
(Korean)
110 hours in
advance
(Korean)
63 hours in
advance
(Korean)
46 hours in
advance
(Korean)
94 hours in
advance
(Korean)
6 days in
advance
(English)
4 days in
advance
(English)

January 20
9:14 p.m.
PST
January 21
12:04 a.m.
PST
January 21
12:04 a.m.
PST
January 22
10:25 p.m.
PST

11,862

66,829

440

18,892

70

2,597

6,262

36,783

5 days in
advance
(English)
4 days in
advance
(English)
5 days in
advance
(English)
4 days in
advance
(English)

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MAZZA DECL. ISO APPLE’S MOT. TO COMPEL TIMELY PRODUCTION OF DOCUMENTS IN ADVANCE OF DEPOSITIONS
CASE NO. 11-CV-01846-LHK (PSG)

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6.

As noted in the chart above, Samsung produced 4,409 Korean-language

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documents sourced to Ah Young Kim just two days before her January 11, 2012 deposition.

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Because these documents needed to be translated before they could be analyzed and culled for use

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at deposition, only a small percentage of them were reviewed by Apple’s outside counsel before

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the deposition. Samsung produced an additional 9,513 pages of Korean-language documents

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sourced to Ms. Kim just 9 hours in advance of her deposition. Apple was barely able to process

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and upload these documents into a repository where they could begin to be reviewed and

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translated before the deposition began. Apple did not complete the review of these documents.

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Finally, on the morning of January 11 Samsung produced another 3,069 pages of Korean-

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language documents from Ms. Kim’s files. Apple’s outside counsel had no chance even to access

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these untranslated documents until the day after the deposition was over.

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7.

Samsung produced 5,256 English-language documents sourced to Tim Sheppard,

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totaling 35,011 pages, just 84 hours before his January 24, 2012 deposition. Apple’s outside

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counsel did what it could to review as many documents as possible before the deposition began,

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but it was unable to complete its review. In that process, Apple determined that the production

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contained numerous PowerPoint files that were printed illegibly or produced in black and white

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although created in color. Legible documents were not received by Apple until the night before

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the deposition began. Similar problems with a witness’s production are often identified in the

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course of reviewing both English-language and foreign-language documents, and it typically

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takes Samsung several more days to turn around corrected documents (if it is willing to do so).

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8.

In all, Samsung has produced 13,169 Korean-language documents (97,516 pages)

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less than 3 days in advance of its witnesses’ depositions, and an additional 15,497 pages of

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Korean-language materials less than 5 days in advance. Samsung has also produced 11,958

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English-language documents, totaling 90,686 pages, less than 108 hours in advance of related

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depositions. The large majority of these documents could not be reviewed by Apple’s outside

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counsel before deposition.

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9.

When Apple receives an average-sized foreign-language document production

from Samsung, it takes about 24 hours to download the data to a secure repository and process the
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data into a review tool that will allow Apple’s Korean-fluent attorneys to access and review the

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information. Thus, a production received at 10 p.m. one evening cannot be accessed for review

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until 10 p.m. the next evening.

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10.

Once Apple’s Korean-fluent attorneys are able to access the data, they review each

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document and flag those that are potentially most useful for the upcoming deposition of the

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custodian of the documents. On a rush basis, each Korean-fluent attorney is able to review and

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analyze approximately 250 documents per eight-hour day. Ten Korean-fluent attorneys thus

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could review roughly 2,500 documents in a full work day.

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11.

On average, about one-tenth of the documents produced by Samsung are sourced

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to a given custodian flagged by Apple’s Korean-language attorneys as potentially useful for the

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custodian’s upcoming deposition. Before Apple’s outside counsel can review and understand the

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flagged documents and cull them down for use in deposition, however, each document must be

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translated into English. On average, each document produced by Samsung contains about

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12 pages of text. Through Apple’s current process, an informal translation of 12 pages of text

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suitable for internal use can be prepared in about 45 minutes. It typically takes five full-time

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Korean-language translators three to five work days to informally translate 250 documents into

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English for use by attorneys preparing for depositions.

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12.

Considering paragraphs 9 through 11 above and paragraph 13 below, even if

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Apple were to employ 10 full-time Korean-language attorneys and 5 full-time Korean-language

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translators, it would take roughly 10 to 12 days for an average sized Korean-language document

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production to be taken from production to use at deposition.

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13.

For English-language documents, it takes at least five days for a typical-size

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production to be reviewed and analyzed by attorneys sufficient to prepare for depositions and

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identify exhibits to be used at depositions. For designers, developers, and marketing custodians,

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Apple must piece together from the custodian’s files what precise role (among the multitude of

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possible roles) he or she played in the design, development, and/or commercialization of products

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that took several months and sometimes years to plan, design, develop, and launch.

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Understanding the development of the allegedly-infringing features involves reviewing e-mails
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and documents containing source code and other technical information. The review of

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Samsung’s financial information is equally complicated, as data must be stitched together from

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several documents before the relevance of financial materials can be determined.

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14.

The overwhelming majority of the 45-plus remaining depositions of Samsung

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witnesses will be taken in Seoul, Korea. Therefore, after Apple’s outside counsel cull the

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translated Samsung documents down into a set that will be used for deposition purposes, the

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documents must be transferred to Korea. On a rush basis, it takes at least two days for documents

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that were printed in the United States to be transferred to Seoul for final culling and preparation

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for use as exhibits in depositions.

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15.

When it was Apple’s turn to produce its English-language documents in

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October 2011, the parties agreed upon a “five-day” rule, acknowledging that five days is the

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minimum amount of time outside counsel needs to be able to competently process, review, cull,

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and prepare documents produced by the other side for relevant depositions. Apple continues to

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follow the five-day rule that the parties agreed upon months ago.

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The parties have agreed that, with respect to the calculation of deposition time for

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Korean-language depositions, two hours of translated deposition time will be counted as one hour

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of non-translated deposition time.

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17.

On and before January 13, 2012, counsel for Apple sent multiple letters to counsel

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for Samsung identifying the problems with Samsung’s tardy productions. The January 13 letter

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advised Samsung that it would be seeking an order requiring Samsung to produce foreign-

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language documents ten days before depositions. The parties’ lead trial counsel met and

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conferred regarding this issue on January 16, 2012. Harold McElhinny asked Charles Verhoeven

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whether Samsung would agree to produce foreign-language documents ten days in advance of

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custodians’ depositions. Mr. Verhoeven said that Samsung would not so agree.

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18.

A true and correct copy of a letter dated November 20, 2011, from Apple’s

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counsel to Samsung’s counsel reflecting the parties’ “5-day rule” agreement is attached hereto as

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Exhibit A (see page 6).

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I declare under penalty of perjury that the foregoing is true and correct. Executed this
27th day of January, 2012, at San Francisco, California.

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/s/ Mia Mazza
Mia Mazza

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MAZZA DECL. ISO APPLE’S MOT. TO COMPEL TIMELY PRODUCTION OF DOCUMENTS IN ADVANCE OF DEPOSITIONS
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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 27, 2012

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/s/ Michael A. Jacobs
Michael A. Jacobs

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