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

Filing 741

MOTION for Attorney Fees AND COSTS IN CONNECTION WITH MOTION TO COMPEL DEPOSITIONS OF 14 OF SAMSUNG'S PURPORTED "APEX" WITNESSES filed by Apple Inc.. Motion Hearing set for 3/27/2012 10:00 AM in Courtroom 5, 4th Floor, San Jose before Magistrate Judge Paul Singh Grewal. Responses due by 3/1/2012. Replies due by 3/8/2012. (Attachments: #1 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]

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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,

Case No. 11-cv-01846-LHK

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Plaintiff,
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v.
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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,

[PROPOSED] ORDER GRANTING
APPLE’S MOTION FOR
ATTORNEYS’ FEES AND COSTS IN
CONNECTION WITH MOTION TO
COMPEL DEPOSITIONS OF 14 OF
SAMSUNG’S PURPORTED “APEX”
WITNESSES

Defendants.

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[PROPOSED] ORDER GRANTING APPLE’S MOT. FOR FEES & COSTS RE MOT. TO COMPEL “APEX” DEPOSITIONS
CASE NO. 11-CV-01846-LHK
sf-3108217

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On February 15, 2012, Apple moved to compel the depositions of 14 high-level Samsung

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employees following Samsung’s repeated refusal to produce the witnesses for their noticed

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depositions under the “apex” doctrine. (See Mot. To Compel Depositions of 14 of Samsung’s

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Purported “Apex” Witnesses.) As explained in the Order granting that Motion, Samsung’s

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position was unjustified. As a result, Apple is entitled to recover its expenses, including

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attorney’s fees, in connection with the motion to compel.

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When a motion to compel is granted, “the court must, after giving an opportunity to be

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heard, require the party or deponent whose conduct necessitated the motion, the party or attorney

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advising that conduct, or both to pay the movant’s reasonable expenses incurred in making the

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motion, including attorney’s fees.” Fed. R. Civ. P. 37(a)(5)(A) (emphasis added); see also Civ. L.

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R. 37-4. Rule 37(a)(5)(A) provides exceptions to this mandatory rule only if the opposing party

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can establish “(i) the movant filed the motion before attempting in good faith to obtain the

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disclosure or discovery without court action; (ii) the opposing party’s nondisclosure, response, or

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objection was substantially justified; or (iii) other circumstances make an award of expenses

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unjust.” Fed. R. Civ. P. 37(a)(5)(A). The prevailing party is also entitled to reimbursement of the

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expenses incurred in connection with preparing a motion for fees and costs. Matlink, Inc. v.

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Home Depot U.S.A., Inc., No. 07cv1994-DMS (BLM), 2008 WL 8504767, at *6 (S.D. Cal. Oct.

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27, 2008), citing Anderson v. Dir., Office of Workers Comp. Programs, 91 F.3d 1322, 1325 (9th

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Cir. 1996).

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Samsung did not establish that any of the exceptions barring recovery of fees and costs

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exist. Apple filed the motion to compel after “attempting in good faith to obtain the [depositions]

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without court action[.]” See Fed. R. Civ. P. 37(a)(5)(A)(i). Samsung lacked a substantial

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justification for its refusal to produce the 14 witnesses for deposition. See id. at 37(a)(5)(A)(ii).

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Finally, there are no “other circumstances mak[ing] an award of expenses unjust.” Id. at

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37(a)(5)(A)(iii). Accordingly, Rule 37(a)(5)(A) mandates an award of Apple’s attorneys’ fees

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and costs.

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///

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[PROPOSED] ORDER GRANTING APPLE’S MOT. FOR FEES & COSTS RE MOT. TO COMPEL “APEX” DEPOSITIONS
CASE NO. 11-CV-01846-LHK
sf-3108217

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For the reasons discussed above, the Court grants Apple’s motion for expenses and

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ORDERS Samsung to pay the expenses as itemized in the Supplemental Declaration filed by

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Apple.

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IT IS SO ORDERED.

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Dated:

, 2012

By:
Hon. Paul S. Grewal
United States District Court Judge

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[PROPOSED] ORDER GRANTING APPLE’S MOT. FOR FEES & COSTS RE MOT. TO COMPEL “APEX” DEPOSITIONS
CASE NO. 11-CV-01846-LHK
sf-3108217

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