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

Filing 740

OPPOSITION to ( #738 MOTION to Shorten Time ) filed by Samsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: #1 Declaration, #2 Proposed Order)(Maroulis, Victoria) (Filed on 2/16/2012) Modified text on 2/17/2012 (dhm, COURT STAFF).

1 QUINN EMANUEL URQUHART & SULLIVAN, LLP
Charles K. Verhoeven (Bar No. 170151)
[e-mail]
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50 California Street, 22nd Floor
3 San Francisco, California 94111
Telephone: [phone]
4 Facsimile: [phone]
Kevin P.B. Johnson (Bar No. 177129
[e-mail]
Victoria F. Maroulis (Bar No. 202603)
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[e-mail]
555 Twin Dolphin Drive, 5th Floor
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Redwood Shores, California 94065-2139
[phone]
8 Telephone:
Facsimile:
[phone]
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Michael T. Zeller (Bar No. 196417)
[e-mail]
865 S. Figueroa St., 10th Floor
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Los Angeles, California 90017
12 Telephone: [phone]
Facsimile: [phone]
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14 Attorneys for SAMSUNG ELECTRONICS CO.,
LTD., SAMSUNG ELECTRONICS AMERICA,
15 INC. and SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC
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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION

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20 APPLE INC., a California corporation,
Plaintiff,

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vs.

23 SAMSUNG ELECTRONICS CO., LTD., a
Korean business entity; SAMSUNG
24 ELECTRONICS AMERICA, INC., a New
York corporation; SAMSUNG
25 TELECOMMUNICATIONS AMERICA,
LLC, a Delaware limited liability company,
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Defendant.
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CASE NO. 11-cv-01846-LHK
SAMSUNG'S OPPOSITION TO APPLE'S
MOTION TO SHORTEN TIME FOR
BRIEFING AND HEARING ON APPLE’S
MOTION TO COMPEL DEPOSITIONS
OF 14 OF SAMSUNG’S “APEX”
EXECUTIVES

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Case No. 11-cv-01846-LHK
SAMSUNG'S OPPOSITION TO MOTION TO SHORTEN TIME ON APPLE’S MOTION TO COMPEL
DEPOSITIONS OF 14 OF SAMSUNG’S APEX EXECUTIVES

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MEMORANDUM OF POINTS AND AUTHORITIES

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Apple has moved to shorten time on its Motion to Compel Depositions of 14 of Samsung's

3 "Apex" Executives. (Dkt. 738). Apple’s motion willfully ignores the Court’s prior
4 admonishments regarding shortened time and presents no good cause for forcing Samsung to brief
5 these important issues over the space of a holiday weekend. Apple’s motion should be denied.
6 I.

APPLE'S MOTION TO SHORTEN FLOUTS THE COURT'S ADMONISHMENTS

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AGAINST LEAP-FROGGING OTHER LITIGANTS FOR ITS OWN

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CONVENIENCE.

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This Court has repeatedly made clear that the parties may not abuse the procedures for

10 shortening time on urgent matters by seeking shortened time on every single discovery motion
11 they file – as Apple has done since the inception of this case. At a January 19, 2012 discovery
12 hearing, the Court took the parties to task for burdening the Court with nine discovery motions on
13 shortened time. And most recently, on January 31, 2012, the Court vacated a prior order in which
14 it had granted shortened time for one of Apple's discovery motions (Dkt. 699):
In light of the pending motion, on the heels of so many others, the court is thus
forced to consider whether the mechanism of shortened time has come under abuse
in this case. That is, by continuously and successfully requesting to jump to the
head of the court’s line, do Apple and Samsung unfairly obtain an expediency in
decisions-rendered that other litigants patiently standing in the queue do not or only
rarely receive?

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The answer revealed by the docket in this case is, unfortunately, yes. Although it
may not be the province or responsibility of Apple or Samsung – or any individual
party for that matter – to consider the externalities that its tactics impose on those
sharing the judicial resources of this court, perhaps it should be. In any event, the
court cannot overlook its duty to balance the legitimate needs of the parties in this
case against the impact on other litigants who seek to be heard on a reasonable
schedule.

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(Dkt. 699 at 2). Apple apparently has chosen to ignore the Court’s clear instructions, in flagrant
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disrespect of the Court's time and the needs of other litigants facing issues far more significant
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than a deposition-related discovery dispute. Apple’s motion should be denied on this basis alone.1
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Apple's motion to shorten also violates Civil Local Rule 6-3. The Rule requires that a
motion to shorten "disclose[] all previous time modifications in the case, whether by stipulation or
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(footnote continued)
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Case No. 11-cv-01846-LHK
SAMSUNG'S OPPOSITION TO MOTION TO SHORTEN TIME ON APPLE’S MOTION TO COMPEL
DEPOSITIONS OF 14 OF SAMSUNG’S APEX EXECUTIVES

1 II.

APPLE HAS NOT SHOWN GOOD CAUSE FOR SHORTENING TIME.

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A.

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Samsung first raised its apex objections in early January 2012. (Declaration of Rachel

Apple Could Have Avoided Any Such Urgency Through Its Own Diligence.

4 Herrick Kassabian In Support of Opposition to Apple’s Motion to Shorten Time, at ¶ 2). During
5 the lead counsel meet and confer on January 5, 2012, Samsung’s counsel explained that it would
6 be objecting to those deposition notices; then again on January 13, 2012, Samsung specifically
7 identified its apex objections in relation to at least one of Samsung’s executives. (Id.) Apple has
8 known of this apex issue since at least then. It could have prioritized this issue during the parties’
9 meet and confer discussions, and filed this motion earlier, but chose not to. Apple may not burden
10 the Court with an expedited motion that it could have avoided through its own diligence.
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B.

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The "Apex" issue is not a simple or trivial one. It concerns the ability of the top executives

The Apex Issue Is Not Appropriate For Briefing On Just Four Days’ Notice.

13 to focus on running their companies without being forced to sit for deposition in every case filed
14 against those companies. Apex depositions are often abused, as has happened here.
15 Approximately 1 in 5 of Apple’s deposition notices inappropriately target senior level apex
16 executives, despite the fact that there are literally dozens of more relevant, lower level witnesses
17 Apple could have noticed in their stead. The present motion concerns 14 apex executives,
18 including the most senior executives at Samsung, STA CEO Dale Sohn and SEC Vice-Chairman
19 and CEO G.S. Choi. Such matters deserve more thorough consideration than Apple's four-day
20 time period to respond will permit. Indeed, Apple’s proposed briefing schedule plainly seeks to
21 prejudice Samsung for Apple’s own tactical advantage in forcing Samsung to oppose Apple’s
22 motion by February 20 (over a holiday weekend), even though its proposed hearing date is fully
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24 Court order." The "Mazza Declaration in Support of Motion to Shorten TIme" [sic] filed in
support of Apple's motion to shorten contains no such disclosure. (Dkt. 738-1). On this basis
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alone, Apple's motion must be denied. McCreary v. Celera Corp., 11-1618 SC, 2011 WL
26 1399263 (N.D. Cal. Apr. 13, 2011) ("Plaintiff's Motion does not comply with the Civil Local
Rules governing motions to enlarge or shorten time. … Here, Plaintiff has not included a
27 declaration in support of his Motion and has satisfied none of these requirements. Accordingly, the
Court DENIES Plaintiff's Motion to Shorten Time.").
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Case No. 11-cv-01846-LHK
SAMSUNG'S OPPOSITION TO MOTION TO SHORTEN TIME ON APPLE’S MOTION TO COMPEL
DEPOSITIONS OF 14 OF SAMSUNG’S APEX EXECUTIVES

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1 eight days later, on February 28. Such a draconian briefing schedule is plainly unnecessary.
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Nor will Apple suffer prejudice if its motion is heard on regular time. As a preliminary

3 matter, even assuming a February 28 hearing date, and even assuming Apple were to prevail on its
4 motion (which it shouldn’t) in a same-day ruling from the bench, it is highly unlikely that the apex
5 depositions could be arranged, scheduled and completed in the six business days between
6 February 28 and the close of discovery on March 8. Moreover, by Apple’s logic, any discovery
7 motions filed on regular time at this juncture would ultimately result in toothless orders – which
8 certainly is not the case. Surely, it is not the Court's intent that its orders cease to be enforceable
9 after March 8, and that the parties must madly rush to file all their motions on shortened time in
10 the next few weeks to avoid this fate. Indeed, the Local Rules permit motions to compel to be
11 filed as late as seven days after the close of discovery. See N.D. Cal. L.R. 37.3.
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C.

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Minimize The Burdens On The Court.

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Samsung intends to file a motion for protective order regarding these fourteen apex

The Apex Issues Should Be Heard Together, Rather Than Piecemeal, To

15 executives, and does not intend to seek shortened time, given the Court’s clear directives. Apple’s
16 motion should be heard simultaneously with Samsung’s motion.2
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Moreover, while Apple’s motion suggests that Apple has consented to the depositions of

18 all of its apex witnesses, that is not the case. Apple omits that Samsung has noticed the
19 depositions of Apple CEO Tim Cook, and Apple Senior Vice Presidents Bruce Sewell and Jeff
20 Williams. (Kassabian Decl., ¶ 3). Though Samsung tried to raise these issues during the February
21 14 lead counsel meet and confer session, Apple has not yet responded to these notices. (Id. ¶ 4).
22 Given that Apple omitted reference to these executives in its supporting declaration describing the
23 apex witnesses to whom it has consented, (see Mazza Decl. ISO Motion for Shortened Time, ¶¶
24 12-13), Samsung expects that an apex objection from Apple is forthcoming. If so, Apple should
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Of course, if the Court does elect to hear this matter on shortened time, Samsung
27 respectfully requests that the Court shorten time on Samsung’s Motion for Protective Order as
well.
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Case No. 11-cv-01846-LHK
SAMSUNG'S OPPOSITION TO MOTION TO SHORTEN TIME ON APPLE’S MOTION TO COMPEL
DEPOSITIONS OF 14 OF SAMSUNG’S APEX EXECUTIVES

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1 meet and confer on these issues immediately, so that if motion practice becomes necessary, it can
2 get its motion on file without delay and the Court can resolve all of the apex issues at once rather
3 than burdening the Court with seriatim motions on the same subject.
4 III.

APPLE SHOULD NOT BE REWARDED FOR ITS CONTINUED DISREGARD OF

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THIS COURT’S DIRECTIVE TO MEET AND CONFER IN GOOD FAITH.

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Apple’s motion to shorten time should be denied for the additional reason that Apple has

7 failed to meet and confer in good faith to resolve this issue. Among other things, at the parties’
8 lead counsel meet and confer session on February 14, Samsung’s counsel attempted to engage
9 Apple’s counsel in a merits discussion of the apex issue, but Apple refused to respond. More
10 specifically, Samsung pointed out that the evidence Apple had offered to date did not reflect
11 unique knowledge, and asked for a response. (Kassabian Decl., ¶ 4). Apple refused, stating only
12 that its position was laid out in its February 9 letter. (Id.). Samsung also pointed out that Apple
13 had recently cancelled the depositions of several lower-level employees who reported (directly or
14 indirectly) to these apex executives, and asked why Apple had done so and why that didn’t defeat
15 Apple’s demand for these apex depositions. (Id.). Apple responded only that it has done so for
16 “strategic” reasons, and would not discuss the matter further, demanding instead that the parties
17 move on to the next issue. (Id.). Samsung also offered to drop its apex objections to three
18 executives, and asked Apple if it would drop other of its apex notices in return. (Id.). Apple again
19 refused. (Id.).
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Given the thin evidence Apple has proffered for many of these apex depositions, Apple’s

21 refusal to meaningfully discuss these issues suggests again that Apple is using these lead counsel
22 meet and confer sessions to merely “check the box” so that it can proceed with motion practice.
23 Such tactics should not be rewarded. The Court should order Apple to set its motion on regular
24 noticed time, and use the intervening briefing period to engage in further meaningful discussions
25 with Samsung that might obviate the need for the Court to even hear the motion. Apple must
26 accept that it may not get everything it wants here; some compromise will be necessary.
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CONCLUSION
For the foregoing reasons, Samsung respectfully requests that the Court deny Apple’s
Case No. 11-cv-01846-LHK
SAMSUNG'S OPPOSITION TO MOTION TO SHORTEN TIME ON APPLE’S MOTION TO COMPEL
DEPOSITIONS OF 14 OF SAMSUNG’S APEX EXECUTIVES

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1 Motion to Shorten Time for Briefing and Hearing on Apple’s Motion to Compel Certain
2 Depositions of Samsung Apex Executives.
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4 DATED: February 16, 2012

Respectfully submitted,

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QUINN EMANUEL URQUHART &
SULLIVAN, LLP

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By /s/ Rachel Herrick Kassabian
Charles K. Verhoeven
Kevin P.B. Johnson
Victoria F. Maroulis
Michael T. Zeller
Rachel Herrick Kassabian
Attorneys for SAMSUNG ELECTRONICS CO.,
LTD., SAMSUNG ELECTRONICS AMERICA,
INC. and SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC

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Case No. 11-cv-01846-LHK
SAMSUNG'S OPPOSITION TO MOTION TO SHORTEN TIME ON APPLE’S MOTION TO COMPEL
DEPOSITIONS OF 14 OF SAMSUNG’S APEX EXECUTIVES

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