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)
[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]

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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
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6.

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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10.

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
CASE NO. 11-CV-01846-LHK
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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
CASE NO. 11-CV-01846-LHK
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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
CASE NO. 11-CV-01846-LHK
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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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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
CASE NO. 11-CV-01846-LHK
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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
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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
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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
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