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

Filing 691

MOTION to Permit Samsung's Expert Samuel Lucente to Review Materials Designated Under the Protective Order filed by Samsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. Motion Hearing set for 2/7/2012 10:00 AM in Courtroom 5, 4th Floor, San Jose before Magistrate Judge Paul Singh Grewal. Responses due by 2/3/2012. Replies due by 2/6/2012. (Attachments: #1 Declaration of Albert P. Bedecarre, #2 Exhibit A, #3 Exhibit B, #4 Exhibit C, #5 Exhibit D, #6 Exhibit E, #7 Exhibit F, #8 Exhibit G, #9 Exhibit H, #10 Exhibit I, #11 Exhibit J, #12 Exhibit K, #13 Exhibit L, #14 Exhibit M, #15 Proposed Order)(Maroulis, Victoria) (Filed on 1/30/2012)

EXHIBIT K

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WRITER'S INTERNET ADDRESS
[e-mail]

January 25, 2012
VIA ELECTRONIC MAIL
Mia Mazza
Morrison & Foerster LLP
425 Market Street
San Francisco, CA 94105-2482
Re:

Apple, Inc. v. Samsung Elecs. Co., et al., No. 11-cv-1846-LHK (N.D. Cal.)

Dear Mia:
Apple’s pattern of unfounded objections to Samsung’s disclosed design experts is harassing and
improper. None of Apple’s serial, nitpicking objections justifies preventing Samsung’s experts-who have sworn under oath to abide by the Protective Order--from obtaining access to Apple’s
documents. Therefore, the only explanation we can imagine for Apple’s conduct is an intent to
delay and impede Samsung’s ability to prepare its defense in actions that were expedited at
Apple’s insistence.
Marc Pernick’s letter of January 24, 2012 maintaining objections to Sam Lucente and demanding
still more information about Robert Anders is the latest example of Apple’s unwarranted and
dilatory objections. Samsung disclosed Mr. Lucente with all of the required information on
December 13, 2011. Samsung then responded to Apple’s two separate objections lodged on
December 27, 2011 and January 17, 2012 with additional information about Mr. Lucente’s work
experience, his current consulting clients, and his co-ownership of U.S. and a pending foreign
patent application. The fact that Mr. Lucente has patents in the relevant field makes him

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HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
Mia Mazza
January 25, 2012
qualified to provide expert testimony in this matter; it does not disqualify him from access to
Apple’s allegedly confidential material. As you have been informed, Mr. Lucente is not engaged
in any kind of business that might be considered competitive to Apple’s smartphone and tablet
computer businesses. Based on this record, Apple has no credible basis to believe that
Mr. Lucente would violate that Protective Order, nor that he would obtain some competitive
advantage from accessing Apple’s confidential documents in connection with his service as an
expert in this case.
Indeed, Apple has implicitly conceded that it has no legitimate concern about Mr. Lucente by
twice proposing to trade off its objections to Mr. Lucente in exchange for Samsung either
waiving objections to an Apple expert or moving up expert procedures in this case to match the
schedule in the ITC. Most recently, on January 16, you offered: “We will be prepared to close
the loop on Apple's objections to Samsung's expert Lucente, assuming Samsung will close the
loop on its objections to Apple's expert Peter Bressler (also discussed at the last LCM&C).”
Even though Samsung voluntarily withdrew its objections to Mr. Bressler yesterday, Apple
refused to withdraw its objections to Mr. Lucente, stating instead that it would consider
“reasonable restrictions” on documents he can receive.
Apple predictably objected to Dr. Robert Anders as well, claiming that it needs to know if he has
patents relating to smartphones or tablet computers, and whether he has any other clients in this
field. As a preliminary matter, Apple is fully capable of searching for any patents that
Dr. Anders might have, and Dr. Anders has disclosed the required information about his clients
already. Thus neither of Apple’s objections justify disqualifying Dr. Anders from receiving
Apple’s allegedly confidential materials. Further, they fail to meet the requirement of section
7.4(b) of the Protective Order to “set forth in detail” the grounds for the objection; they simply
seek more free discovery.
Nevertheless, to continue its effort to get Apple to approve a single design expert it has
disclosed, Samsung responds that Dr. Anders reports that he has no issued patents in any field,
no pending applications in any field, and no other clients in the smartphone or tablet computer
business. Accordingly, Apple has no basis to continue its objection against Dr. Anders under the
Protective Order and no evidence whatsoever to suggest that he would violate that Protective
Order he has signed under oath.
Opening expert reports are due March 22, 2012. Samsung cannot tolerate Apple’s blatant
attempts to thwart Samsung’s experts from viewing documents they may deem relevant to their
opinions. Nor can it wait any longer to resolve Apple’s objections. These issues already have
been discussed at prior lead counsel meet and confer sessions and they were raised at the hearing
before Magistrate Judge Grewal last week. Unless Apple withdraws its objections to Samuel
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HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
Mia Mazza
January 25, 2012
Lucente and Robert Anders by 5:00 p.m. today, Samsung will proceed with motion practice on
an expedited basis.
Very truly yours,
/s/ Rachel Herrick Kassabian
Rachel Herrick Kassabian
RHK

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