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

Filing 742

REPLY (re #738 MOTION to Shorten Time ) filed byApple Inc.. (Attachments: #1 Declaration of Mia Mazza in Support of Apple's Reply in Support of Motion to Shorten Time re "Apex" Witnesses, #2 Exhibit A)(Jacobs, Michael) (Filed on 2/17/2012)

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1 2 3 4 5 6 7 8 9 HAROLD J. MCELHINNY (CA SBN 66781) MICHAEL A. JACOBS (CA SBN 111664) JENNIFER LEE TAYLOR (CA SBN 161368) ALISON M. TUCHER (CA SBN 171363) RICHARD S.J. HUNG (CA SBN 197425) JASON R. BARTLETT (CA SBN 214530) MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: (415) 268-7000 Facsimile: (415) 268-7522 WILLIAM F. LEE 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) 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 Case No. 11-cv-01846-LHK (PSG) APPLE’S REPLY IN SUPPORT OF 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 25 26 27 28 APPLE’S REPLY ISO MOT. TO SHORTEN TIME FOR BRIEFING AND HEARING ON MOT. TO COMPEL “APEX” DEPOS CASE NO. 11-CV-01846-LHK (PSG) sf-3108814 1 Samsung has unjustifiably refused to produce key witnesses for deposition and now seeks 2 to delay even further by requiring Apple’s Motion to Compel to be heard after the close of 3 discovery. Samsung’s opposition fails to tell the whole story. In truth: 4 It was not until February 3 that Samsung notified Apple that it was pursuing apex 5 objections to 22 out of its 23 witnesses. With one exception, Samsung had asserted boilerplate 6 objections to the 23 witnesses, including boilerplate apex objections for some of those witnesses. 7 Samsung then purported to engage with Apple in attempting to schedule those depositions. The 8 sole exception was the head of Samsung Telecommunications America. Samsung sent a letter on 9 January 13 claiming apex protection for this single witness and asking Apple to withdraw his 10 deposition notice. As Apple moved forward to pursue scheduling of the other noticed Samsung 11 witnesses’ depositions, Apple did not pursue scheduling of the STA head’s deposition. Apple 12 resumed seeking this witness’s deposition only after taking three depositions of lower-level 13 witnesses who failed to provide useful testimony about Samsung’s finances. Samsung gave no 14 comparable notice for any other witness until it sent its February 3 letter. (Mazza Reply Decl. in 15 Supp. of Mot. to Shorten Time (“Mazza Reply Decl.”) ¶ 2.) 16 Apple diligently pursued this issue once Samsung sent its February 3 letter regarding 17 purported apex witnesses. Once Samsung sent its February 3 letter as to the 23 purported apex 18 witnesses, Apple (1) raised the issue at the February 6, lead trial counsel meet and confer, 19 (2) followed up with a detailed thirteen-page letter on February 9 explaining its grounds for 20 deposing those witnesses, and (3) sent an additional letter on February 12. (Mazza Shortening 21 Decl. ¶¶ 5–7.) Apple then (4) made the issue its highest priority at the February 14 and 15 lead 22 trial counsel meet and confers. (Mazza Reply Decl. ¶ 3.) Samsung’s assertion that Apple did not 23 meet and confer in good faith is disingenuous. Apple’s letters set forth its position on each 24 witness in detail. Samsung does not suggest what purpose it would have served for Apple to 25 restate its position over and over again during the meet and confers (except of course to cause 26 further delay). 27 28 APPLE’S REPLY ISO MOT. TO SHORTEN TIME FOR BRIEFING AND HEARING ON MOT. TO COMPEL “APEX” DEPOS CASE NO. 11-CV-01846-LHK (PSG) sf-3108814 1 1 Samsung has had notice of Apple’s arguments and purportedly “thin evidence” since 2 February 9 and can respond on February 20. Samsung’s Opposition never says it cannot file 3 its brief on February 20, just that it doesn’t want to. Apple’s thirteen-page letter on February 9 4 and follow-up letter on February 11 gave Samsung ample notice of Apple’s position. Samsung 5 should have no problem responding to Apple’s supposedly “thin evidence.” Apple has sought a 6 schedule that would complete the parties’ briefing on the apex issue as early as February 20 to 7 allow the Court’s clerks substantial time to review the parties’ papers in advance of the proposed 8 February 28 hearing date. Apple’s proposed schedule does not include a reply brief. (Mazza 9 Shortening Decl. ¶ 4.) 10 Samsung spurned Apple’s offer to suggest an alternative briefing schedule. Apple 11 advised Samsung of its proposed briefing schedule on February 9, the morning of February 15, 12 and the morning of February 16. Samsung never suggested an alternative. On the morning of 13 February 16, Apple notified Samsung that it would propose a hearing date on February 28 rather 14 than February 21, and invited Samsung to propose an alternative briefing schedule. Apple 15 postponed its filing of its papers from 9:00 a.m. until noon so that it could receive a suggested 16 briefing schedule from Samsung. Samsung, however, declined to propose an alternative to 17 Apple’s proposed schedule. (Mazza Shortening Decl ¶¶ 13–16; Mazza Reply Decl. ¶ 4 & Ex. A.) 18 Nor does its Opposition propose an alternative. 19 Apple is mindful of the Court’s admonitions about shortened time. Apple’s Motion to 20 Shorten Time acknowledged that shortened time places burdens on the Court and showed that the 21 need for shortened time is due to Samsung’s unjustified refusal to produce 14 witnesses for 22 deposition so close to the close of discovery. 23 Dated: February 17, 2012 MORRISON & FOERSTER LLP 24 25 26 27 By: /s/ Michael A. Jacobs MICHAEL A. JACOBS Attorneys for Plaintiff APPLE INC. 28 APPLE’S REPLY ISO MOT. TO SHORTEN TIME FOR BRIEFING AND HEARING ON MOT. TO COMPEL “APEX” DEPOS CASE NO. 11-CV-01846-LHK (PSG) sf-3108814 2

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