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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1 2 3 4 5 6 7 8 9 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 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 10 11 Attorneys for Plaintiff and Counterclaim-Defendant APPLE INC. 12 13 UNITED STATES DISTRICT COURT 14 NORTHERN DISTRICT OF CALIFORNIA 15 SAN JOSE DIVISION 16 17 APPLE INC., a California corporation, Plaintiff, 18 19 20 21 22 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., 23 Defendants. 24 25 26 27 28 MAZZA DECL. ISO APPLE’S MOTION TO SHORTEN TIME CASE NO. 11-CV-01846-LHK (PSG) sf-3108177 Case No. 11-cv-01846-LHK (PSG) DECLARATION OF MIA MAZZA IN SUPPORT OF APPLE’S MOTION TO SHORTEN TIME Date: Time: Place: Judge: February 28, 2012 10:00 a.m. Courtroom 5, 4th Floor Hon. Paul S. Grewal 1 I, Mia Mazza, declare as follows: 2 1. I am a partner in the law firm of Morrison & Foerster LLP, counsel for Apple Inc. 3 (“Apple”). I am licensed to practice law in the State of California. Unless otherwise indicated, I 4 have personal knowledge of the matters stated herein or understand them to be true from 5 members of my litigation team. I make this Declaration in support of Apple’s Motion to Shorten 6 Time For Briefing and Hearing on Apple’s Motion to Compel Depositions of 14 of Samsung’s 7 Purported “Apex” Witnesses (“Motion to Shorten Time”). 8 9 2. Between December 6, 2012, and January 28, 2012, Apple timely served written notices for the 14 depositions at issue in Apple’s Motion to Compel Depositions of 14 of 10 Samsung’s Purported “Apex” Witnesses (“Motion to Compel”). True and correct copies of those 11 notices are attached as Exhibit 1 to the Declaration of Mia Mazza In Support of Apple’s Motion 12 To Compel (“Mazza Declaration”). The deposition notices set deposition dates between early 13 January and mid-February. After serving the notices, counsel for Apple attempted to meet and 14 confer with counsel for Samsung to obtain dates when each of the witnesses would sit for 15 deposition. 16 3. Samsung served formal objections to five of the deposition notices in late-January 17 2012. None of those formal objections asserted an objection on the grounds that the employees 18 were high-level “apex” employees. On January 13, 2012, Samsung sent Apple a letter claiming 19 that a sixth witness was a high ranking Samsung official and requesting that Apple withdraw its 20 deposition notice. Samsung served formal objections to six other deposition notices on February 21 2, 2012. True and correct copies of Samsung’s January 13 letter and its objections to Apple’s 22 deposition notices are attached as Exhibits 2 and 3 to the Mazza Declaration, respectively. 23 4. On February 3, Samsung’s counsel sent a letter to Apple’s counsel identifying a 24 list of 23 purportedly “high-ranking Samsung executives” whose depositions had been noticed by 25 Apple, including the one witness that was the subject of the January 13 letter. Samsung’s letter 26 asserted that “these depositions are highly unlikely to lead to the discovery of relevant 27 information” and claimed that the 23 witnesses have “no relationship to the accused products or 28 the patents-in-suit other than their place atop Samsung’s organization hierarchy.” A true and MAZZA DECL. ISO APPLE’S MOTION TO SHORTEN TIME Case No. 4:11-cv-01846-LHK sf-3108177 1 1 correct copy of Samsung’s February 3rd letter is attached as Exhibit 4 to the Mazza Declaration. 2 Samsung did not move for a protective order with respect to any of the 23 witnesses at that time. 3 5. The parties held a lead trial counsel meet-and-confer on February 6, 2012. They 4 discussed, among other topics, Samsung’s objections on purported “apex” grounds to the 5 depositions of the 23 witnesses in the February 3 letter. Samsung did not agree to withdraw its 6 objections as to any of the 23 witnesses. Instead, Samsung asked Apple to send a letter providing 7 more information as to why Apple should be permitted to depose the witnesses listed in their 8 February 3 letter. 9 6. On February 9th, Apple sent Samsung a thirteen-page letter containing a witness- 10 by-witness summary outlining why Samsung’s objections were meritless. A true and correct 11 copy of that letter is attached as Exhibit 5 to the Mazza Declaration The letter discussed each 12 witness’s connection with key issues in this case and cited to specific documents establishing 13 each witness’s connection. 14 7. Apple sent an additional letter to Samsung on February 12 further articulating its 15 positions on this issue. Among other things, the letter noted that mot of the witness at issue in 16 Apple’s Motion to Compel are not apex witnesses. A true and correct copy of that letter is 17 attached as Exhibit 7 to the Mazza Declaration. 18 19 20 8. 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: 9. The parties held another lead trial counsel meet-and-confer on February 14. The 21 parties discussed Samsung’s “apex” objections and Samsung agreed to withdraw its objections to 22 three of the witnesses listed in its February 3, 2012, letter, leaving a total of 14 purported “apex” 23 witnesses still in dispute. Samsung refused to produce the remaining 14 witnesses for deposition. 24 10. The parties held a further lead trial counsel meet-and-confer session on February 25 15, 2012. During that meeting, counsel for Samsung acknowledged Apple’s intent to move to 26 compel the depositions of the remaining 14 purported “apex” witnesses, and stated that Samsung 27 intended to move for a protective order to prevent Apple from deposing those 14 witnesses. 28 MAZZA DECL. ISO APPLE’S MOTION TO SHORTEN TIME Case No. 4:11-cv-01846-LHK sf-3108177 2 1 11. As detailed in Apple’s February 9th letter and its Motion to Compel, the witnesses 2 at issue in the Motion to Compel were personally and intimately involved in issues that go to the 3 heart of the dispute between the parties in this case. The witnesses include individuals who made 4 key decisions regarding the design and development of Samsung’s products that are central to the 5 issues in this case. Their involvement is well demonstrated in Samsung’s own documents and 6 deposition testimony, which are attached as exhibits to the Mazza Declaration 7 12. In contrast to Samsung’s approach, to date Apple has permitted Samsung to 8 depose numerous senior executives, vice presidents, and directors (the same ranks as most of 9 Samsung’s witnesses at issue in this motion). Apple has also allowed Samsung to depose three of 10 Apple’s nine most senior executives—Scott Forstall, Jonathan Ive, and Phil Schiller, the most 11 senior individuals in the iOS Software, Industrial Design, and Marketing groups, respectively. 12 13. In its February 9 letter to Samsung, Apple provided notice of its intent to file a 13 motion to compel the deposition of most of Samsung’s purported “apex” witnesses. The letter 14 proposed a shortened briefing and hearing schedule for Apple’s motion, providing for an 15 expedited hearing on February 21, 2012. At the end of the meet and confer on February 14, 16 Samsung’s counsel asked for 24 hours’ notice if Apple was going to move for shortened time on a 17 motion to compel. 18 14. On the morning of February 15, 2012, Apple again notified Samsung in writing of 19 Apple’s intent to file a motion to compel on shortened time regarding the “apex” depositions, 20 with a proposed hearing date of Tuesday, February 21, 2012, opening brief deadline of Thursday, 21 February 16, and opposition deadline of Monday, February 20 at noon. 22 15. On the morning of February 16, 2012, Samsung advised Apple that it was not 23 willing to stipulate to the proposed shortened schedule. Samsung neither agreed to Apple’s 24 proposed schedule nor suggested an alternate schedule. 25 16. Apple has now learned that the Court is unavailable on February 21, 2012, so 26 Apple now seeks a hearing date of February 28th (the Court’s next available Tuesday morning 27 hearing date). 28 MAZZA DECL. ISO APPLE’S MOTION TO SHORTEN TIME Case No. 4:11-cv-01846-LHK sf-3108177 3 1 2 3 I declare under penalty of perjury that the foregoing is true and correct. Executed on February 16, 2012, at San Francisco, California. 4 /s/ Mia Mazza Mia Mazza 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MAZZA DECL. ISO APPLE’S MOTION TO SHORTEN TIME Case No. 4:11-cv-01846-LHK sf-3108177 4 1 2 ATTESTATION OF E-FILED SIGNATURE I, Michael A. Jacobs, am the ECF User whose ID and password are being used to file this 3 Declaration. In compliance with General Order 45, X.B., I hereby attest that Mia Mazza has 4 concurred in this filing. 5 Dated: February 16, 2012 /s/ Michael A. Jacobs Michael A. Jacobs 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MAZZA DECL. ISO APPLE’S MOTION TO SHORTEN TIME CASE NO. 11-CV-01846-LHK (PSG) sf-3108177 5

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