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

Filing 736

Administrative Motion to File Under Seal filed by Apple Inc.. (Attachments: #1 Proposed Order granting administrative to file under seal, #2 [Public] APPLE INC.S MOTION TO COMPEL DEPOSITIONS OF 14 OF SAMSUNGS PURPORTED APEX WITNESSES, #3 Declaration [Public] Mazza Declaration in Support of APPLE INC.S MOTION TO COMPEL DEPOSITIONS OF 14 OF SAMSUNGS PURPORTED APEX WITNESSES, #4 Exhibit 15, #5 Exhibit 16, #6 Proposed Order granting motion to compel)(Jacobs, Michael) (Filed on 2/16/2012)

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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]

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,
Plaintiff,

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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.,

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Defendants.

Case No.

11-cv-01846-LHK (PSG)

DECLARATION OF MIA MAZZA
IN SUPPORT OF APPLE’S
MOTION TO COMPEL
DEPOSITIONS OF 14 OF
SAMSUNG’S PURPORTED
“APEX” WITNESSES
Date:
Time:
Place:
Judge:

February 28, 2012
10:00 a.m.
Courtroom 5, 4th Floor
Hon. Paul S. Grewal

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PUBLIC REDACTED VERSION
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MAZZA DECL. ISO APPLE’S MOTION TO COMPEL DEPOSITIONS OF 14 OF SAMSUNG’S PURPORTED “APEX” WITNESSES
CASE NO. 11-CV-01846-LHK (PSG)
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I, Mia Mazza, declare as follows:

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1.

I am a partner in the law firm of Morrison & Foerster LLP, counsel for Apple Inc.

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(“Apple”). I am licensed to practice law in the State of California. Unless otherwise indicated, I

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have personal knowledge of the matters stated herein or understand them to be true from

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members of my litigation team. I make this Declaration in support of Apple’s Motion to Compel

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Depositions of 14 of Samsung’s Purported “Apex” Witnesses (“Motion to Compel”).

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2.

Certain of the exhibits to this Declaration consist of Korean-language documents

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produced by Samsung in this action. To the extent time has permitted, Apple has obtained

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certified translations of those documents and submits those translations herewith along with each

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Korean original. With respect to the remaining Korean-language documents attached hereto,

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Apple has obtained non-certified translations and submits those herewith along with the Korean

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original.

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3.

Between December 6, 2012, and January 28, 2012, Apple timely served written

notices of the 14 depositions at issue here

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4.

Apple served each of the above-referenced deposition notices at least 10 days

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before the noticed deposition date, and served many of the notices more than 30 days in advance.

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All depositions were noticed for dates well before the March 8, 2012, discovery cutoff, and were

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set for dates when Apple’s attorneys would be in Korea taking other depositions in this case.

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5.

Samsung formally objected to some of the 14 depositions at issue in this motion in

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January 2012, and others on February 2, 2012. Samsung did not always object on the basis that

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the witnesses were apex employees. Attached hereto as Exhibit 2 is a true and correct copy of

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Samsung’s January 13, 2012, objection to the deposition of

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Exhibit 3 are true and correct copies of Samsung’s January 21 and February 2 notices of

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objection.

Attached hereto as

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MAZZA DECL. ISO APPLE’S MOTION TO COMPEL DEPOSITIONS OF 14 OF SAMSUNGS’ PURPORTED “APEX” WITNESSES
Case No. 4:11-cv-01846-LHK
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sf-3107162

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6.

On February 3, Samsung’s counsel sent a letter to Apple’s counsel identifying a

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list of 23 purportedly “high-ranking Samsung executives” whose depositions had been noticed by

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Apple. Samsung’s letter asserted that “these depositions are highly unlikely to lead to the

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discovery of relevant information” and claimed that the 23 witnesses have “no relationship to the

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accused products or the patents-in-suit other than their place atop Samsung’s organization

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hierarchy.” Attached hereto as Exhibit 4 is a true and correct copy of this letter. Samsung did

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not move for a protective order with respect to any of the 23 witnesses at that time.

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7.

The parties held a lead trial counsel meet-and-confer on February 6, 2012. They

discussed, among other topics, Samsung’s objections on purported “apex” grounds to the

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depositions of the 23 witnesses in the February 3 letter. Samsung did not agree to withdraw its

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objections as to any of the 23 witnesses. Instead, Samsung asked Apple to send a letter providing

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more information as to why Apple should be permitted to depose the witnesses.

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8.

On February 9th, Apple sent Samsung a thirteen-page letter containing a witness-

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by-witness summary outlining why Samsung’s objections were meritless. Attached hereto as

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Exhibit 5 is a true and correct copy of this letter. The letter discussed each witness’s

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involvement with key issues in this case and cited to specific documents establishing each

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witness’s connection to the issues.

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9.

Between February 3 and February 14, 2012, Apple agreed to defer calendaring of

six of the depositions to which Samsung was objecting on purported “apex” grounds.
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Attached hereto as Exhibit 6 is a true and correct copy of Samsung’s response to

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Apple’s letter of February 9. Apple sent an additional letter to Samsung on February 12 further

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articulating its position on this issue. Among other things, the letter noted that most of the

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witnesses at issue in Apple’s Motion to Compel were not apex witnesses. Attached hereto as

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Exhibit 7 is a true and correct copy of Apple’s February 12, 2012, letter to Samsung.

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11.

The parties held another lead trial counsel meet-and-confer on February 14 and 15.

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The parties discussed Samsung’s “apex” objections and Samsung agreed to withdraw its

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objections to three of the witnesses listed in its February 3, 2012, letter, leaving a total of 14

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purported “apex” witnesses still in dispute. Samsung refused to produce the remaining 14
MAZZA DECL. ISO APPLE’S MOTION TO COMPEL DEPOSITIONS OF 14 OF SAMSUNGS’ PURPORTED “APEX” WITNESSES
Case No. 4:11-cv-01846-LHK
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witnesses for deposition. During that meeting, counsel for Samsung acknowledged Apple’s

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intent to move to compel the depositions of the remaining 14 purported “apex” witnesses, and

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stated that Samsung intended to move for a protective order to prevent Apple from deposing those

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14 witnesses.

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12.

Apple produced (or is scheduled to produce) three of its nine most senior

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executives—Scott Forstall, Jonathan Ive, and Phil Schiller, the most senior individuals in the iOS

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Software, Industrial Design, and Marketing groups, respectively.

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13.

Apple also produced, or agreed to produce, many other senior executives, vice

presidents, and directors (the same ranks as most of Samsung’s witnesses at issue in this motion)

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for deposition. This list includes, among others, Michael Tchao, Steve Zadesky, and Henri

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Lamiraux – Vice Presidents for Product Marketing (iPad), iPod/iPhone Product Design, and

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Software Engineering (iOS Apps & Frameworks), respectively.

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MAZZA DECL. ISO APPLE’S MOTION TO COMPEL DEPOSITIONS OF 14 OF SAMSUNGS’ PURPORTED “APEX” WITNESSES
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Attached hereto as Exhibit 15 is a true and correct copy of the webpage at

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http://english.yonhapnews.co.kr/business/2011/10/19/26/0501000000AEN20111019000200320F.

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html from February 15, 2012.

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Attached hereto as Exhibit 16 is a true and correct copy of the webpage at

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http://www.androidpolice.com/2011/10/20/samsung-decides-galaxy-nexus-was-not-actually-

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designed-to-avoid-apple-patents-doesnt-know-how-that-rumor-got-started-nothing-to-see-here/

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from February 15, 2012.

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MAZZA DECL. ISO APPLE’S MOTION TO COMPEL DEPOSITIONS OF 14 OF SAMSUNGS’ PURPORTED “APEX” WITNESSES
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MAZZA DECL. ISO APPLE’S MOTION TO COMPEL DEPOSITIONS OF 14 OF SAMSUNGS’ PURPORTED “APEX” WITNESSES
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MAZZA DECL. ISO APPLE’S MOTION TO COMPEL DEPOSITIONS OF 14 OF SAMSUNGS’ PURPORTED “APEX” WITNESSES
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MAZZA DECL. ISO APPLE’S MOTION TO COMPEL DEPOSITIONS OF 14 OF SAMSUNGS’ PURPORTED “APEX” WITNESSES
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53.

Apple sought to streamline discovery by requesting 30(b)(6) depositions of

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Samsung witnesses with knowledge of the accused features, but to date Samsung has only

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designated four 30(b)(6) witnesses to cover a narrow range of issues.

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MAZZA DECL. ISO APPLE’S MOTION TO COMPEL DEPOSITIONS OF 14 OF SAMSUNGS’ PURPORTED “APEX” WITNESSES
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I declare under penalty of perjury that the foregoing is true and correct. Executed
February 16, 2012 at San Francisco, California.
/s/ Mia Mazza
Mia Mazza

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MAZZA DECL. ISO APPLE’S MOTION TO COMPEL DEPOSITIONS OF 14 OF SAMSUNGS’ PURPORTED “APEX” WITNESSES
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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 Mia Mazza has

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concurred in this filing.

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Dated: February 16, 2012

/s/ Michael A. Jacobs
Michael A. Jacobs

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MAZZA DECL. ISO APPLE’S MOTION TO COMPEL DEPOSITIONS OF 14 OF SAMSUNGS’ PURPORTED “APEX” WITNESSES
CASE NO. 11-CV-01846-LHK (PSG)
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sf-3107162