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

Filing 738

MOTION to Shorten Time filed by Apple Inc.. (Attachments: #1 Mazza Declaration in Support of Motion to Shorten TIme, #2 Proposed Order)(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)

APPLE’S MOTION TO SHORTEN
TIME FOR BRIEFING AND
HEARING ON 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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APPLE’S MOTION TO SHORTEN TIME FOR BRIEFING AND HEARING ON APPLE’S MOT. TO COMPEL “APEX” DEPOS
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NOTICE OF MOTION AND MOTION
TO DEFENDANTS AND THEIR ATTORNEY OF RECORD:
PLEASE TAKE NOTICE that Apple Inc. (“Apple”) hereby moves the Court, pursuant to

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Civil Local Rules 6-1(b) and 6-3, to shorten time for briefing and hearing on its accompanying

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

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Compel”). Specifically, Apple requests that:

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1)

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2012; and

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2)

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Samsung’s opposition to the Motion to Compel be filed no later than February 20,

The hearing take place on or about February 28, 2012 at 10:00 a.m.

This motion is based on this notice of motion and supporting memorandum of points and

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authorities; the Declaration of Mia Mazza in Support of Apple’s Motion to Shorten Time for

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Hearing and Briefing on Apple’s Motion to Compel Depositions of 14 of Samsung’s Purported

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“Apex” Witnesses, the Declaration of Mia Mazza in Support of Apple’s Motion to Compel

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Depositions of 14 of Samsung’s Purported “Apex” Witnesses, the exhibits filed therewith, and

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such other written or oral argument as may be presented at or before the time this motion is taken

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under submission by the Court.

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Dated: February 16, 2012

MORRISON & FOERSTER LLP

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By:

/s/ Michael A. Jacobs
MICHAEL A. JACOBS
Attorneys for Plaintiff
APPLE INC.

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APPLE’S MOTION TO SHORTEN TIME FOR BRIEFING AND HEARING ON APPLE’S MOT. TO COMPEL “APEX” DEPOS
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MEMORANDUM OF POINTS AND AUTHORITIES
In early February 2012, Samsung objected to 23 deposition notices that Apple had timely

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served in December and January, claiming that each witness has “no relationship to the accused

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

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Apple responded on February 9 with a detailed, 13-page letter that showed each witness’s direct

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involvement in key issues that go to the heart of Apple’s claims in this case. Apple’s February 9

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letter cited recently-produced Samsung documents demonstrating that these witnesses have

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relevant and likely inculpatory information about the development and design of Samsung’s

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products, including information related to Apple’s claims that Samsung deliberately copied

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Apple’s products. Despite Apple’s detailed showing in its February 9 letter, Apple’s agreement

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to defer scheduling the depositions of six of the witnesses, and the parties’ discussion of the issue

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during three separate lead trial counsel meetings, Samsung still refuses to produce for deposition

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14 of the purported “apex” witnesses.

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Apple has done everything in its power to resolve this issue within the confines of the fact

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discovery cutoff without court intervention. As detailed below, however, Apple now has no

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choice but file a motion to compel and to seek to have it heard on shortened time.

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Apple timely served deposition notices for dates well within the discovery period.

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Apple timely served notices of deposition for the 14 witnesses at issue between December 6,

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2011 and January 28, 2012, for deposition dates between early January and mid-February.

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(Mazza Decl. ¶ 2.) The depositions were thus noticed and could have taken place well before the

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March 8 discovery cut-off. (See id.)

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Samsung did not assert the vast majority of its apex objections until February. After

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serving the notices, Apple repeatedly attempted to obtain a commitment from Samsung as to a

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date when each of the 14 witnesses would be made available to sit for the noticed depositions. (Id.

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at ¶ 2.) In January 13, 2012, Samsung asserted that one of Apple’s proposed deponents was an

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“apex” employee who should not be deposed. (Id. at ¶ 3.) On February 3, Samsung sent a letter

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asking Apple to justify why it needed to depose 23 purportedly “high-ranking Samsung

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executives,” including the one witness that was the subject of the January 13 letter. (Id. at ¶ 4.)
APPLE’S MOTION TO SHORTEN TIME FOR BRIEFING AND HEARING ON APPLE’S MOT. TO COMPEL “APEX” DEPOS
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Apple raised Samsung’s objections at the February 6 lead trial counsel meet and

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

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meeting, Apple raised this issue, but the parties did not resolve the dispute at that time. Samsung

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did not agree to withdraw its objections as to any of the 23 witnesses. Instead, it asked for more

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information as to why Apple should be able to depose the witnesses. (Mazza Decl. ¶ 5.)

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Apple sent its detailed letter on February 9. On February 9, 2012, Apple sent Samsung

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a 13-page letter making a detailed showing that each of these witnesses was personally and

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intimately involved in issues that go to the heart of the dispute between the parties in this case.

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The letter cited documents that Samsung had recently produced tying each witness to a critical

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issue in the case. (Id. at ¶¶ 6 & 11.)

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Apple raised Samsung’s objections again at two subsequent lead trial counsel meet

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and confer sessions. The parties held additional lead trial counsel meet and confer sessions on

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February 14 and 15, 2012. During these sessions, Samsung withdrew its “apex” objections as to

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three witnesses. Samsung still refused to produce 14 of the witnesses for deposition. (Id. at ¶¶ 9-

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10.)

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Apple gave Samsung notice of its intent to move on shortened time. In its February

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9th letter, Apple provided notice to Samsung that it intended to file, on February 16, a motion to

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compel the deposition of Samsung’s witnesses. (Id. at ¶ 13.) The letter proposed an expedited

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briefing and hearing schedule for Apple’s motion that would provide for the hearing of the

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motion on Tuesday, February 21, 2012. (Id.) At the end of the meet and confer on February 14,

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Samsung’s counsel asked for 24 hours’ notice if Apple was going to move for shortened time on a

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motion to compel. (Id.) On the morning of February 15, Apple again notified Samsung in

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writing of Apple’s intent to file a motion to compel on shortened time regarding the “apex”

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depositions. Apple once again laid out the shortened briefing and hearing schedule for that

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motion. (Id.) Nevertheless, as detailed in the declaration of Mia Mazza, Samsung has neither

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agreed to a schedule proposed by Apple nor suggested an alternate schedule. (Id.)

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APPLE’S MOTION TO SHORTEN TIME FOR BRIEFING AND HEARING ON APPLE’S MOT. TO COMPEL “APEX” DEPOS
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Despite its efforts to resolve Samsung’s objections, Apple has no choice but to move to

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compel. Apple’s motion, filed herewith, demonstrates that Samsung has no legitimate grounds to

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prevent the discovery that Apple seeks. The 14 witnesses at issue are each personally and

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intimately involved in issues that go to the heart of the dispute between the parties in this case.

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(Mazza Decl. ¶ 11.) The witnesses include individuals who made key decisions regarding the

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design and development of Samsung’s products that are central to the issues in this case. (Id.)

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Their connection to the issues in this case is well demonstrated in Samsung’s own documents and

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deposition testimony, which are cited in Apple’s Motion to Compel. (Id.) Apple filed the Motion

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to Compel at the earliest possible date, after meeting and conferring with Samsung beginning

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with the February 6 lead counsel meet and confer, and then filing the motion soon after the

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February 14-15 lead counsel meet and confer session concluded.

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Apple also has no choice but to ask that the Court resolve this motion on shortened time.

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Apple is mindful that granting this request will burden the Court’s resources, but believes that

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shortened time is necessary in order for the depositions to take place before the March 8

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discovery cut-off. In light of that impending date, Apple’s ability to depose these witnesses

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would be effectively barred without an expedited briefing and hearing schedule. The earliest

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possible hearing date under an ordinary 35-day briefing and hearing schedule would be March 27,

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2012—nearly three weeks after the discovery cut-off. Apple thus urgently needs this Court’s

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assistance in resolving this dispute before the window of discovery closes.

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Apple has proposed a briefing and hearing schedule on shortened time that would allow

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Apple’s Motion to Compel to be heard on or before February 28, 2012. To provide the Court

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with as much time as possible to consider the parties’ briefing, Apple has proposed that the

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parties complete their briefing a little more than a week before the proposed hearing time.

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CONCLUSION

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For the foregoing reasons, Apple respectfully requests that the Court grant Apple’s

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Motion to Shorten Time for Briefing and Hearing on Apple’s Motion to Compel. In the event the

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proposed February 28 hearing date is not convenient for the Court, Apple respectfully requests

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APPLE’S MOTION TO SHORTEN TIME FOR BRIEFING AND HEARING ON APPLE’S MOT. TO COMPEL “APEX” DEPOS
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that the Court calendar the hearing of Apple’s motion for the next date thereafter as the matter

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may be heard.

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Dated: February 16, 2012

MORRISON & FOERSTER LLP

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By:

/s/ Michael A. Jacobs
MICHAEL A. JACOBS
Attorneys for Plaintiff
APPLE INC.

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APPLE’S MOTION TO SHORTEN TIME FOR BRIEFING AND HEARING ON APPLE’S MOT. TO COMPEL “APEX” DEPOS
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CASE NO. 11-CV-01846-LHK (PSG)
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