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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1 2 3 4 5 6 7 8 9 HAROLD J. MCELHINNY (CA SBN 66781) hmcelhinny@mofo.com MICHAEL A. JACOBS (CA SBN 111664) mjacobs@mofo.com JENNIFER LEE TAYLOR (CA SBN 161368) jtaylor@mofo.com ALISON M. TUCHER (CA SBN 171363) atucher@mofo.com RICHARD S.J. HUNG (CA SBN 197425) rhung@mofo.com JASON R. BARTLETT (CA SBN 214530) jasonbartlett@mofo.com MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: (415) 268-7000 Facsimile: (415) 268-7522 10 11 12 WILLIAM F. LEE william.lee@wilmerhale.com WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 Telephone: (617) 526-6000 Facsimile: (617) 526-5000 MARK D. SELWYN (SBN 244180) mark.selwyn@wilmerhale.com WILMER CUTLER PICKERING HALE AND DORR LLP 950 Page Mill Road Palo Alto, California 94304 Telephone: (650) 858-6000 Facsimile: (650) 858-6100 Attorneys for Plaintiff and Counterclaim-Defendant APPLE INC. 13 UNITED STATES DISTRICT COURT 14 NORTHERN DISTRICT OF CALIFORNIA 15 SAN JOSE DIVISION 16 17 APPLE INC., a California corporation, Plaintiff, 18 19 20 21 22 23 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. 24 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 25 26 27 28 MAZZA DECL. ISO APPLE’S MOT. TO COMPEL TIMELY PRODUCTION OF DOCUMENTS IN ADVANCE OF DEPOSITIONS CASE NO. 11-CV-01846-LHK (PSG) sf-3099266 1 I, Mia Mazza, declare as follows: 2 1. I am a partner in the law firm of Morrison & Foerster LLP, counsel for Apple Inc. 3 (“Apple”). I am licensed to practice law in the State of California. Unless otherwise indicated, 4 I have personal knowledge of the matters stated herein or understand them to be true from 5 members of my litigation team. I make this Declaration in support of Apple’s Motion to Compel 6 Timely Production of Foreign-Language and Other Documents in Advance of Related 7 Depositions. 8 9 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, 10 non-privileged documents from each inventor’s or prosecutor’s files no later than five days before 11 his or her deposition. With a few isolated exceptions of a small number of late-discovered 12 documents produced three or four days in advance, Apple abided by this “five-day rule.” All of 13 Apple’s documents were in English. 14 15 16 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. 4. After purportedly finishing its preliminary injunction production on October 12, 17 2011, Samsung stopped producing documents relevant to Apple’s offensive case until 18 December 7, 2011. 19 5. The chart below summarizes recent document productions by Samsung for its 20 witnesses whose depositions were taken by Apple in the past two weeks. The chart shows the 21 name of each witness, the scheduled deposition start time, date(s) that Samsung produced 22 documents from the witness’s files, the volume of the production, and the approximate time in 23 advance of the deposition that the production was received by Apple. 24 25 [Continued on next page] 26 27 28 MAZZA DECL. ISO APPLE’S MOT. TO COMPEL TIMELY PRODUCTION OF DOCUMENTS IN ADVANCE OF DEPOSITIONS CASE NO. 11-CV-01846-LHK (PSG) sf-3099266 1 1 Witness 2 3 4 5 Ahyoung Kim Ahyoung Kim 6 7 Ahyoung Kim 8 9 10 Ahyoung Kim Bo-ra Kim 11 12 13 14 15 16 17 18 Wookyun Kho Junho Park Junho Park Nara Cho Tim Sheppard 19 20 Tim Sheppard 21 22 Justin Denison 23 Justin Denison 24 Brian Rosenberg 25 26 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) 27 28 MAZZA DECL. ISO APPLE’S MOT. TO COMPEL TIMELY PRODUCTION OF DOCUMENTS IN ADVANCE OF DEPOSITIONS CASE NO. 11-CV-01846-LHK (PSG) sf-3099266 2 1 6. As noted in the chart above, Samsung produced 4,409 Korean-language 2 documents sourced to Ah Young Kim just two days before her January 11, 2012 deposition. 3 Because these documents needed to be translated before they could be analyzed and culled for use 4 at deposition, only a small percentage of them were reviewed by Apple’s outside counsel before 5 the deposition. Samsung produced an additional 9,513 pages of Korean-language documents 6 sourced to Ms. Kim just 9 hours in advance of her deposition. Apple was barely able to process 7 and upload these documents into a repository where they could begin to be reviewed and 8 translated before the deposition began. Apple did not complete the review of these documents. 9 Finally, on the morning of January 11 Samsung produced another 3,069 pages of Korean- 10 language documents from Ms. Kim’s files. Apple’s outside counsel had no chance even to access 11 these untranslated documents until the day after the deposition was over. 12 7. Samsung produced 5,256 English-language documents sourced to Tim Sheppard, 13 totaling 35,011 pages, just 84 hours before his January 24, 2012 deposition. Apple’s outside 14 counsel did what it could to review as many documents as possible before the deposition began, 15 but it was unable to complete its review. In that process, Apple determined that the production 16 contained numerous PowerPoint files that were printed illegibly or produced in black and white 17 although created in color. Legible documents were not received by Apple until the night before 18 the deposition began. Similar problems with a witness’s production are often identified in the 19 course of reviewing both English-language and foreign-language documents, and it typically 20 takes Samsung several more days to turn around corrected documents (if it is willing to do so). 21 8. In all, Samsung has produced 13,169 Korean-language documents (97,516 pages) 22 less than 3 days in advance of its witnesses’ depositions, and an additional 15,497 pages of 23 Korean-language materials less than 5 days in advance. Samsung has also produced 11,958 24 English-language documents, totaling 90,686 pages, less than 108 hours in advance of related 25 depositions. The large majority of these documents could not be reviewed by Apple’s outside 26 counsel before deposition. 27 28 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 MAZZA DECL. ISO APPLE’S MOT. TO COMPEL TIMELY PRODUCTION OF DOCUMENTS IN ADVANCE OF DEPOSITIONS CASE NO. 11-CV-01846-LHK (PSG) sf-3099266 3 1 data into a review tool that will allow Apple’s Korean-fluent attorneys to access and review the 2 information. Thus, a production received at 10 p.m. one evening cannot be accessed for review 3 until 10 p.m. the next evening. 4 10. Once Apple’s Korean-fluent attorneys are able to access the data, they review each 5 document and flag those that are potentially most useful for the upcoming deposition of the 6 custodian of the documents. On a rush basis, each Korean-fluent attorney is able to review and 7 analyze approximately 250 documents per eight-hour day. Ten Korean-fluent attorneys thus 8 could review roughly 2,500 documents in a full work day. 9 11. On average, about one-tenth of the documents produced by Samsung are sourced 10 to a given custodian flagged by Apple’s Korean-language attorneys as potentially useful for the 11 custodian’s upcoming deposition. Before Apple’s outside counsel can review and understand the 12 flagged documents and cull them down for use in deposition, however, each document must be 13 translated into English. On average, each document produced by Samsung contains about 14 12 pages of text. Through Apple’s current process, an informal translation of 12 pages of text 15 suitable for internal use can be prepared in about 45 minutes. It typically takes five full-time 16 Korean-language translators three to five work days to informally translate 250 documents into 17 English for use by attorneys preparing for depositions. 18 12. Considering paragraphs 9 through 11 above and paragraph 13 below, even if 19 Apple were to employ 10 full-time Korean-language attorneys and 5 full-time Korean-language 20 translators, it would take roughly 10 to 12 days for an average sized Korean-language document 21 production to be taken from production to use at deposition. 22 13. For English-language documents, it takes at least five days for a typical-size 23 production to be reviewed and analyzed by attorneys sufficient to prepare for depositions and 24 identify exhibits to be used at depositions. For designers, developers, and marketing custodians, 25 Apple must piece together from the custodian’s files what precise role (among the multitude of 26 possible roles) he or she played in the design, development, and/or commercialization of products 27 that took several months and sometimes years to plan, design, develop, and launch. 28 Understanding the development of the allegedly-infringing features involves reviewing e-mails MAZZA DECL. ISO APPLE’S MOT. TO COMPEL TIMELY PRODUCTION OF DOCUMENTS IN ADVANCE OF DEPOSITIONS CASE NO. 11-CV-01846-LHK (PSG) sf-3099266 4 1 and documents containing source code and other technical information. The review of 2 Samsung’s financial information is equally complicated, as data must be stitched together from 3 several documents before the relevance of financial materials can be determined. 4 14. The overwhelming majority of the 45-plus remaining depositions of Samsung 5 witnesses will be taken in Seoul, Korea. Therefore, after Apple’s outside counsel cull the 6 translated Samsung documents down into a set that will be used for deposition purposes, the 7 documents must be transferred to Korea. On a rush basis, it takes at least two days for documents 8 that were printed in the United States to be transferred to Seoul for final culling and preparation 9 for use as exhibits in depositions. 10 15. When it was Apple’s turn to produce its English-language documents in 11 October 2011, the parties agreed upon a “five-day” rule, acknowledging that five days is the 12 minimum amount of time outside counsel needs to be able to competently process, review, cull, 13 and prepare documents produced by the other side for relevant depositions. Apple continues to 14 follow the five-day rule that the parties agreed upon months ago. 15 16. The parties have agreed that, with respect to the calculation of deposition time for 16 Korean-language depositions, two hours of translated deposition time will be counted as one hour 17 of non-translated deposition time. 18 17. On and before January 13, 2012, counsel for Apple sent multiple letters to counsel 19 for Samsung identifying the problems with Samsung’s tardy productions. The January 13 letter 20 advised Samsung that it would be seeking an order requiring Samsung to produce foreign- 21 language documents ten days before depositions. The parties’ lead trial counsel met and 22 conferred regarding this issue on January 16, 2012. Harold McElhinny asked Charles Verhoeven 23 whether Samsung would agree to produce foreign-language documents ten days in advance of 24 custodians’ depositions. Mr. Verhoeven said that Samsung would not so agree. 25 26 27 28 MAZZA DECL. ISO APPLE’S MOT. TO COMPEL TIMELY PRODUCTION OF DOCUMENTS IN ADVANCE OF DEPOSITIONS CASE NO. 11-CV-01846-LHK (PSG) sf-3099266 5 1 18. A true and correct copy of a letter dated November 20, 2011, from Apple’s 2 counsel to Samsung’s counsel reflecting the parties’ “5-day rule” agreement is attached hereto as 3 Exhibit A (see page 6). 4 5 I declare under penalty of perjury that the foregoing is true and correct. Executed this 27th day of January, 2012, at San Francisco, California. 6 /s/ Mia Mazza Mia Mazza 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MAZZA DECL. ISO APPLE’S MOT. TO COMPEL TIMELY PRODUCTION OF DOCUMENTS IN ADVANCE OF DEPOSITIONS CASE NO. 11-CV-01846-LHK (PSG) sf-3099266 6 1 2 ATTESTATION OF E-FILED SIGNATURE I, Michael A. Jacobs, 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 Mia Mazza has 4 concurred in this filing. 5 Dated: January 27, 2012 6 /s/ Michael A. Jacobs Michael A. Jacobs 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MAZZA DECL. ISO APPLE’S MOT. TO COMPEL TIMELY PRODUCTION OF DOCUMENTS IN ADVANCE OF DEPOSITIONS CASE NO. 11-CV-01846-LHK (PSG) sf-3099266 7

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