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

Filing 735

RESPONSE (re #702 MOTION to Compel Apple's Re-Noticed Motion to Compel Timely Production of Foreign-Language and Other Documents in Advance of Related Depositions ) filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC(a Delaware limited liability company). (Attachments: #1 Declaration of Rachel Herrick Kassabian In Support of Samsung's Opposition to Apple's Motion to Compel, #2 Declaration of Joby Martin In Support of Samsung's Opposition to Apple's Motion to Compel, #3 Declaration of Alexander B. Binder In Support of Samsung's Opposition to Apple's Motion to Compel)(Maroulis, Victoria) (Filed on 2/16/2012)

1 QUINN EMANUEL URQUHART & SULLIVAN, LLP
Charles K. Verhoeven (Bar No. 170151)
 [e-mail]
50 California Street, 22nd Floor
 San Francisco, California 94111
Telephone: [phone]
 Facsimile: [phone]
 Kevin P.B. Johnson (Bar No. 177129)
[e-mail]
 Victoria F. Maroulis (Bar No. 202603)
[e-mail]
th
 555 Twin Dolphin Drive, 5 Floor
Redwood Shores, California 94065-2139
 Telephone: [phone]
Facsimile: [phone]

 Michael T. Zeller (Bar No. 196417)
[e-mail]
 865 S. Figueroa St., 10th Floor
Los Angeles, California 90017
 Telephone: [phone]
Facsimile: [phone]

 Attorneys for SAMSUNG ELECTRONICS CO.,
LTD., SAMSUNG ELECTRONICS AMERICA,
 INC. and SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC



UNITED STATES DISTRICT COURT



NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION


 APPLE INC., a California corporation,

CASE NO. 11-cv-01846-LHK (PSG)



DECLARATION OF JOBY MARTIN IN
SUPPORT OF SAMSUNG’S OPPOSITION
TO APPLE’S MOTION TO COMPEL



Plaintiff,
vs.

 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,

Defendant.


Date:
Time:
Place:
Judge:

March 6, 2012
10:00 a.m.
Courtroom 5, 4th Floor
Hon. Paul S. Grewal




02198.51855/4606009.1

Case No. 11-cv-01846-LHK (PSG)
MARTIN DECLARATION IN SUPPORT OF SAMSUNG‘S OPPOSITION
TO APPLE‘S MOTION TO COMPEL

1

I, Joby Martin, declare as follows:



1.

I am an associate in the law firm of Quinn Emanuel Urquhart & Sullivan, LLP,

 counsel for Samsung Electronics Co., Ltd., Samsung Electronics America, Inc. and Samsung
 Telecommunications America, LLC (collectively, ―Samsung‖). I submit this declaration in
 support of Samsung‘s Opposition to Apple‘s Motion to Compel Timely Production of Foreign Language and Other Documents in Advance of Related Depositions (―Apple‘s Motion to
 Compel‖). I have personal knowledge of the facts set forth in this declaration, except as
 otherwise noted, and, if called upon as a witness, I could and would testify to such facts under
 oath.


2.

Apple has repeatedly failed to produce its deposition-related documents at least

 five days – and in many cases not even three days – in advance of the corresponding depositions
 of its employees.


3.

For example, the deposition of Apple‘s Brian Land occurred on October 20,

 2011. After the deposition was over, Apple produced additional documents sourced to him that
 were relevant to the ‗129 patent that had not been produced before the deposition.


4.

Similarly, the deposition of Steven Christensen occurred on October 26, 2011,

 but Apple produced documents sourced to him on October 24, just two days prior to the
 deposition.


5.

The deposition of Richard Williamson occurred on October 28, 2011, but Apple

 produced documents sourced to him later that evening, after the conclusion of the deposition.


6.

The deposition of Wayne Westerman occurred on October 31, 2011, but Apple

 produced some documents pertaining to him on October 28, 2011.


7.

Indeed, just today, Apple produced more than 17,000 pages of documents

 sourced to Richard Dinh, who is scheduled to be deposed by Samsung tomorrow, February 16.
 Samsung did not receive the hard copies of these documents until 9:50 p.m.


8.

For Apple witness John Ternus, Apple produced just 36 documents less than four

 days in advance of his February 10, 2012 deposition. Apple‘s production was devoid of even a



02198.51855/4606009.1

Case No. 11-cv-01846-LHK (PSG)
-1MARTIN DECLARATION IN SUPPORT OF SAMSUNG‘S OPPOSITION
TO APPLE‘S MOTION TO COMPEL

1 single email sent to or from Mr. Ternus, and none of the documents produced by Apple appear
2 to be authored by Mr. Ternus.
3

9.

In collecting documents from its inventors prior to their depositions in October

4 2011, Apple ran improperly narrow date restrictions. After numerous meet and confer efforts,
5 Apple finally agreed to correct this deficiency. Thereafter, Apple produced substantially more
6 relevant documents regarding its inventors, who had already been deposed.
7

10.

More specifically, for 28 of the Apple witnesses who have been deposed thus far,

8 Apple has produced a substantial number of documents after the related deposition occurred. In
9 many instances, Apple did not complete its production for its deponent custodians until months
10 after the deposition. Apple‘s late productions are set forth in the chart below:
11

Deponent

Deposition
Date

Date Samsung
Received Apple’s Late
Productions

13

John Elias

Oct. 13, 2011

14

Steven LeMay

Oct. 14, 2011

Imran Chaudhri

Oct. 14, 2011

Chris Blumenberg

Oct. 14, 2011

Scott Herz

Oct. 14, 2011

Freddy Anzures

Oct. 18, 2011

Greg Christie
Peter Russell-Clarke

Oct. 18, 2011
Oct. 20, 2011

Brian Land

Oct. 20, 2011

Dec. 19, 2011
Feb. 2, 2012
Dec. 16, 2011
Dec. 20, 2011
Dec. 22, 2011
Feb. 3, 2012
Dec. 20, 2011
Dec. 30, 2011
Jan. 12, 2012
Jan. 20, 2012
Jan. 31, 2012
Dec. 30, 2011
Feb. 2, 2012
Dec. 16, 2011
Dec. 30, 2011
Feb. 2, 2012
Feb. 3, 2012
Dec. 16, 2011
Dec. 19, 2011
Dec. 22, 2011
Dec. 30, 2011
Jan. 12, 2012
Jan. 22, 2012
Feb. 3, 2012
Dec. 30, 2011
Feb. 2, 2012
Feb. 3, 2012
Oct. 21, 2011

12

15
16
17
18
19
20
21
22
23
24
25
26
27
28
02198.51855/4606009.1

Number of Days after
the deposition that
Apple last produced
custodial documents
111
111

109

111
112

96

107
105
84

Case No. 11-cv-01846-LHK (PSG)
-2MARTIN DECLARATION IN SUPPORT OF SAMSUNG‘S OPPOSITION
TO APPLE‘S MOTION TO COMPEL

1

Deponent

Deposition
Date

2
3
4
Joshua Strickon

Oct. 20, 2011

Steve Hotelling

Oct. 21, 2011

Rico Zorkendorfer

Oct. 21, 2011

Daniele De Lullis

Oct. 21, 2011

Matt Rohrbach

Oct. 24, 2011

Bas Ording

5

Oct. 25, 2011

Andre Boule

Oct. 26, 2011

Marcel Van Os

Oct. 26, 2011

Duncan Kerr

Oct. 26, 2011

Bartley Andre

Oct. 26, 2011

Scott Forstall

Oct. 27, 2011

Daniel Coster

Oct. 27, 2011

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
02198.51855/4606009.1

Date Samsung
Received Apple’s Late
Productions
Dec. 16, 2011
Dec. 20, 2011
Jan. 12, 2012
Dec. 30, 2011
Dec. 16, 2011
Dec. 20, 2011
Dec. 22, 2011
Jan. 12, 2012
Jan. 20, 2012
Feb. 2, 2012
Feb. 3, 2012
Dec. 20, 2011
Dec. 30, 2011
Feb. 3, 2011
Dec. 16, 2011
Dec. 20, 2011
Dec. 30, 2011
Jan. 20, 2012
Dec. 30, 2011
Feb. 2, 2012
Dec. 16, 2011
Dec. 19, 2011
Dec. 20, 2011
Dec. 30, 2011
Feb. 3, 2012
Dec. 30, 2011
Feb. 3, 2012
Dec. 16, 2011
Dec. 30, 2011
Jan. 31, 2012
Dec. 16, 2011
Dec. 20, 2011
Dec. 22, 2011
Dec. 30, 2011
Feb. 2, 2012
Feb. 3, 2012
Dec. 22, 2011
Dec. 30, 2011
Jan. 9 2012
Feb. 2, 2012
Dec. 20, 2011
Dec. 30, 2011
Jan. 31, 2012
Feb. 3, 2012
Dec. 30, 2011

Number of Days after
the deposition that
Apple last produced
custodial documents

71
104

104
91

101
101

100
97
100

99

99

98

Case No. 11-cv-01846-LHK (PSG)
-3MARTIN DECLARATION IN SUPPORT OF SAMSUNG‘S OPPOSITION
TO APPLE‘S MOTION TO COMPEL

1

Deponent

Deposition
Date

Eugene Whang

Oct. 27, 2011

Richard Williamson

Oct. 28, 2011

Richard Howarth

Oct. 31, 2011

Wayne Westerman

Oct. 31, 2011

Chris Stringer

Nov. 4, 2011

Douglas Satzger
Sir Jonathan Paul Ive

Nov. 8, 2011
Dec. 1, 2011

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18

11.

Date Samsung
Received Apple’s Late
Productions
Feb. 2, 2012
Dec. 16, 2011
Dec. 30, 2011
Dec. 16, 2011
Dec. 19, 2011
Dec. 20, 2011
Dec. 30, 2011
Feb. 2, 2012
Feb. 3, 2012
Dec. 16, 2011
Dec. 20, 2011
Dec. 30, 2011
Jan. 12, 2012
Jan. 20, 2012
Feb. 2, 2012
Feb. 3, 2012
Dec. 16, 2011
Dec. 19, 2011
Dec. 20, 2011
Dec. 30, 2011
Jan. 20, 2012
Dec. 16, 2011
Dec. 22, 2011
Dec. 30, 2011
Dec. 16, 2011
Dec. 30, 2011

Number of Days after
the deposition that
Apple last produced
custodial documents
64
98

95

82

48
52
29

Apple has produced at least 74,000 pages of documents sourced to custodians

19 whose depositions took place at least two weeks prior those productions.1
20

12.

For at least nine inventors —Scott Herz, Andre Boule, Imran Chaudhri, Bart

21 Andre, Freddy Anzures, Duncan Kerr, Wayne Westerman, Daniel Coster, and Peter Russell22 Clarke—Apple has produced more documents sourced to those inventors after their depositions
23 than it produced before their depositions.
24
25
26

1

By contrast, documents were produced from the custodial files of a Samsung deponent
27 after the deposition took place in only three instances, two of which involved discovery disputes
unrelated to depositions.
28
02198.51855/4606009.1

Case No. 11-cv-01846-LHK (PSG)
-4MARTIN DECLARATION IN SUPPORT OF SAMSUNG‘S OPPOSITION
TO APPLE‘S MOTION TO COMPEL

1

I declare under penalty of perjury under the laws of the United States of America that the

2 foregoing is true and correct.
3

Executed on February 15, 2012, at San Francisco, California.

4
5

/s/ Joby Martin
Joby Martin

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
02198.51855/4606009.1

Case No. 11-cv-01846-LHK (PSG)
-5MARTIN DECLARATION IN SUPPORT OF SAMSUNG‘S OPPOSITION
TO APPLE‘S MOTION TO COMPEL