Apple Inc. v. Samsung Electronics Co. Ltd. et al
Filing
715
Administrative Motion to File Under Seal Apple's Administration to File Documents Under Seal filed by Apple Inc.. (Attachments: #1 Apple Inc.'s Motion for Rule 37(B)(2) Sanctions for Samsung's Violation of Two Discovery Orders, #2 Declaration of Minn Cheung in Support of Apple's Motion for Sanctions, #3 Exhibit T to Chung Declaration, #4 Exhibit V to Chung Declaration, #5 Exhibit Y to Chung Declaration, #6 Exhibit Z to Chung Declaration, #7 Exhibit AA to Chung Declaration, #8 Proposed Order Granting Apple's Motion for Sanctions, #9 Proposed Order Granting Admin Motion)(Jacobs, Michael) (Filed on 2/8/2012)
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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
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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
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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,
Case No. 11-cv-01846-LHK
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Plaintiff,
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v.
SAMSUNG ELECTRONICS CO., LTD., a
Korean corporation; SAMSUNG
ELECTRONICS AMERICA, INC., a New
York corporation; and SAMSUNG
TELECOMMUNICATIONS AMERICA,
LLC, a Delaware limited liability company,
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Defendants.
DECLARATION OF MINN CHUNG IN
SUPPORT OF APPLE INC.’S MOTION
FOR RULE 37(B)(2) SANCTIONS FOR
SAMSUNG’S VIOLATION OF TWO
DISCOVERY ORDERS
Date:
Time:
Place:
Judge:
March 27, 2012
10:00 a.m.
Courtroom 5, 4th Floor
Hon. Paul S. Grewal
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SUBMITTED UNDER SEAL
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DECLARATION OF MINN CHUNG ISO MOTION FOR RULE 37(B)(2) SANCTIONS
CASE NO. 11-CV-01846-LHK
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I, MINN CHUNG, declare as follows:
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1.
I am an attorney at the law firm of Morrison & Foerster LLP, counsel of record in
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this action for plaintiff Apple Inc. (“Apple”). I submit this declaration in support of Apple’s
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Motion for Finding That Samsung Violated Discovery Orders (the “Motion”). Unless otherwise
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indicated, I have personal knowledge of the matters set forth below. If called as a witness I could
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and would testify competently as follows:
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2.
I am a native Korean speaker and proficient in written Korean language. I have a
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Bachelor of Science degree in physics from the Massachusetts Institute of Technology and spent
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over 15 years developing technology products, both hardware and software, before attending law
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school.
3.
Attached hereto as Exhibit A is a true and correct copy of Samsung’s Response
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and Objections to Apple’s Interrogatories Relating to Apple’s Motion for a Preliminary
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Injunction (No. 1) dated September 19, 2011. - Redacted -
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4.
Attached hereto as Exhibit B is a true and correct copy of Samsung’s Objections
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and Responses to Apple’s Interrogatories Relating to Apple’s Motion for a Preliminary Injunction
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– Set Two (Nos. 10-14), dated September 21, 2011. In its Responses to Apple’s Interrogatories
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Nos. 10 and 11, Samsung identified the same persons listed in Paragraph 3 above as designers of
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the Infuse 4G, the Galaxy S 4G, the Galaxy Tab 10.1, and the Droid Charge.
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5.
The last day Samsung produced any document prior to the hearing on Apple’s
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Motion for a Preliminary Injunction, which was held on October 13, 2011, was October 12, 2011.
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Two documents numbering ten pages, Bates numbered SAMNDCA00045058-00045067, which
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appear to be prior art references, were produced on October 12, 2011. No custodian information
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was provided for these documents by Samsung.
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DECLARATION OF MINN CHUNG ISO MOTION FOR RULE 37(B)(2) SANCTIONS
CASE NO. 11-CV-01846-LHK
sf-3101608
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By October 13, 2011, Samsung had produced 2,446 documents in total sourced to
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the Designer Custodians listed in Paragraph 3 above. Of these, 98 documents, only about
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4 percent, mentioned Apple or Apple products.
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After October 13, 2011, Samsung produced no documents sourced to any of the
Designer Custodians listed in Paragraph 3 above until December 7, 2011.
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Between December 7, 2011 and December 31, 2011, Samsung produced 293
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documents in total sourced to the Designer Custodians, 84 of which referenced Apple or Apple
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products. Hence, the percentage of documents referencing Apple or Apple products from the
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Designer Custodians in this period was 28 percent, which was a seven-fold jump compared to
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the percentage in Samsung’s production up to October 13, 2011.
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After December 31, 2011, Samsung produced 4,282 documents sourced to the
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Designer Custodians, 1,034 of which referenced Apple or Apple products—over ten times the
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number produced during the Preliminary Injunction phase of this case. The percentage of
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documents referencing Apple or Apple products from the Designer Custodians in this period was
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24 percent.
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In total, Samsung produced 1,118 documents numbering over 35,000 pages from
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the custodial files of the Designer Custodians that reference Apple or Apple products since
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December 7, 2011. Of these documents, all but 2 were produced since December 23, 2011.
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Attached hereto as Exhibit C is a chart summarizing Samsung’s production of all
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documents sourced to the Designer Custodians from the beginning of this case until January 24,
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2012. - Redacted -
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DECLARATION OF MINN CHUNG ISO MOTION FOR RULE 37(B)(2) SANCTIONS
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The designer custodial documents Samsung produced after December 23, 2011,
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are highly material to the disputed issues in Apple’s Motion for a Preliminary Injunction. Some
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help refute arguments Samsung made in opposition to Apple’s preliminary injunction motion.
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For example, Samsung’s Opposition brief claimed that the evidence then in the
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record “refutes Apple’s claim that the ornamental design of is products is the basis for its market
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share.” (Samsung Opposition to Apple’s Motion for a Preliminary Injunction (“Opposition”)
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filed Aug. 22, 2011 at 31.) - Redacted -
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DECLARATION OF MINN CHUNG ISO MOTION FOR RULE 37(B)(2) SANCTIONS
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DECLARATION OF MINN CHUNG ISO MOTION FOR RULE 37(B)(2) SANCTIONS
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DECLARATION OF MINN CHUNG ISO MOTION FOR RULE 37(B)(2) SANCTIONS
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DECLARATION OF MINN CHUNG ISO MOTION FOR RULE 37(B)(2) SANCTIONS
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DECLARATION OF MINN CHUNG ISO MOTION FOR RULE 37(B)(2) SANCTIONS
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DECLARATION OF MINN CHUNG ISO MOTION FOR RULE 37(B)(2) SANCTIONS
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DECLARATION OF MINN CHUNG ISO MOTION FOR RULE 37(B)(2) SANCTIONS
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Attached hereto as Exhibit M is a true and correct copy of a letter dated
November 4, 2011 sent from Apple’s counsel to Samsung’s counsel. - Redacted -
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Attached hereto as Exhibit N is a true and correct copy of a chart summarizing Samsung’s
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production of survey documents from the files of these Survey Custodians. For each Survey
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Custodian, the chart shows the number of survey documents referencing Apple or its products
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produced before October 13 and the number of documents produced after that date. Before
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October 13, Samsung did not produce any survey documents from the files of Survey Custodians
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at all. In December 2011 and January 2012, Samsung produced 410 documents referencing
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Apple or its products.
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Like the design documents discussed above, the survey documents withheld from
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Samsung’s preliminary injunction production contain highly relevant materials that were central
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to the issues in dispute in Apple’s preliminary injunction motion. - Redacted -
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DECLARATION OF MINN CHUNG ISO MOTION FOR RULE 37(B)(2) SANCTIONS
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. Attached hereto as Exhibit R is a list of all documents referencing
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Apple or Apple products produced on or after December 8, 2011 from the custodial files of the
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Designer Custodians. Attached hereto as Exhibit S is a list of all survey documents referencing
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Apple or Apple products produced on or after December 8, 2011 from the custodial files of the
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Survey Custodians. For each entry in these lists, a short description of the nature of reference to
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DECLARATION OF MINN CHUNG ISO MOTION FOR RULE 37(B)(2) SANCTIONS
CASE NO. 11-CV-01846-LHK
sf-3101608
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Apple or Apple products is provided. It is unquestionable that all of these documents should have
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been produced by October 7, 2011, under the Court’s September 28 Order.
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Attached hereto as Exhibit T is a true and correct copy of excerpts from the
transcript of the September 28, 2011 hearing on Apple’s motion to compel.
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Attached hereto as Exhibit U is a true and correct copy of Samsung’s Amended
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Identification of Custodians, Litigation Hold Notices and Search Terms dated October 10, 2011.
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The document was produced to Apple in conjunction with Samsung’s production of documents in
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October, 2011.
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Attached hereto as Exhibit V is a true and correct copy of a letter from Sara
Jenkins to Wesley Overson dated October 10, 2011.
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Attached hereto as Exhibit W is a true and correct copy of a letter from Wesley
Overson to Victoria Maroulis dated October 10, 2011.
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Attached hereto as Exhibit X is a true and correct copy of a letter from Rachel
Kassabian to Wesley Overson dated October 25, 2011.
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Attached hereto as Exhibit Y is a true and correct copy of a letter from Wesley
Overson to Rachel Kassabian dated November 1, 2011.
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Attached hereto as Exhibit Z is a true and correct copy of excerpts from a
transcript of a hearing held before this Court on January 19, 2012.
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Attached hereto as Exhibit AA is a true and correct copy of an e-mail from
Samsung’s counsel discussing vendor problems dated October 7, 2011.
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Attached hereto as Exhibit BB is a true and correct copy of excerpts from the
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transcript of the deposition of Justin Denison, Samsung’s 30(b)(6) designee, which took place on
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September 21, 2011.
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I declare under the penalty of perjury under the laws of the United States of America that
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the forgoing is true and correct and that this Declaration was executed this 8th day of February
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2012, at Seoul, South Korea.
By:
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/s/ Minn Chung
Minn Chung
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DECLARATION OF MINN CHUNG ISO MOTION FOR RULE 37(B)(2) SANCTIONS
CASE NO. 11-CV-01846-LHK
sf-3101608
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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 Minn Chung has
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concurred in this filing.
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Dated: February 8, 2012
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/s/ Michael A. Jacobs
Michael A. Jacobs
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DECLARATION OF MINN CHUNG ISO MOTION FOR RULE 37(B)(2) SANCTIONS
CASE NO. 11-CV-01846-LHK
sf-3101608
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