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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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.
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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

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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

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Samsung has unjustifiably refused to produce key witnesses for deposition and now seeks

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to delay even further by requiring Apple’s Motion to Compel to be heard after the close of

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discovery. Samsung’s opposition fails to tell the whole story. In truth:

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It was not until February 3 that Samsung notified Apple that it was pursuing apex

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objections to 22 out of its 23 witnesses. With one exception, Samsung had asserted boilerplate

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objections to the 23 witnesses, including boilerplate apex objections for some of those witnesses.

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Samsung then purported to engage with Apple in attempting to schedule those depositions. The

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sole exception was the head of Samsung Telecommunications America. Samsung sent a letter on

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January 13 claiming apex protection for this single witness and asking Apple to withdraw his

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deposition notice. As Apple moved forward to pursue scheduling of the other noticed Samsung

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witnesses’ depositions, Apple did not pursue scheduling of the STA head’s deposition. Apple

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resumed seeking this witness’s deposition only after taking three depositions of lower-level

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witnesses who failed to provide useful testimony about Samsung’s finances. Samsung gave no

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comparable notice for any other witness until it sent its February 3 letter. (Mazza Reply Decl. in

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Supp. of Mot. to Shorten Time (“Mazza Reply Decl.”) ¶ 2.)

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Apple diligently pursued this issue once Samsung sent its February 3 letter regarding

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purported apex witnesses. Once Samsung sent its February 3 letter as to the 23 purported apex

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witnesses, Apple (1) raised the issue at the February 6, lead trial counsel meet and confer,

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(2) followed up with a detailed thirteen-page letter on February 9 explaining its grounds for

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deposing those witnesses, and (3) sent an additional letter on February 12. (Mazza Shortening

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Decl. ¶¶ 5–7.) Apple then (4) made the issue its highest priority at the February 14 and 15 lead

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trial counsel meet and confers. (Mazza Reply Decl. ¶ 3.) Samsung’s assertion that Apple did not

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meet and confer in good faith is disingenuous. Apple’s letters set forth its position on each

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witness in detail. Samsung does not suggest what purpose it would have served for Apple to

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restate its position over and over again during the meet and confers (except of course to cause

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further delay).

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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

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Samsung has had notice of Apple’s arguments and purportedly “thin evidence” since

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February 9 and can respond on February 20. Samsung’s Opposition never says it cannot file

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its brief on February 20, just that it doesn’t want to. Apple’s thirteen-page letter on February 9

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and follow-up letter on February 11 gave Samsung ample notice of Apple’s position. Samsung

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should have no problem responding to Apple’s supposedly “thin evidence.” Apple has sought a

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schedule that would complete the parties’ briefing on the apex issue as early as February 20 to

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allow the Court’s clerks substantial time to review the parties’ papers in advance of the proposed

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February 28 hearing date. Apple’s proposed schedule does not include a reply brief. (Mazza

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Shortening Decl. ¶ 4.)

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Samsung spurned Apple’s offer to suggest an alternative briefing schedule. Apple

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advised Samsung of its proposed briefing schedule on February 9, the morning of February 15,

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and the morning of February 16. Samsung never suggested an alternative. On the morning of

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February 16, Apple notified Samsung that it would propose a hearing date on February 28 rather

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than February 21, and invited Samsung to propose an alternative briefing schedule. Apple

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postponed its filing of its papers from 9:00 a.m. until noon so that it could receive a suggested

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briefing schedule from Samsung. Samsung, however, declined to propose an alternative to

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Apple’s proposed schedule. (Mazza Shortening Decl ¶¶ 13–16; Mazza Reply Decl. ¶ 4 & Ex. A.)

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Nor does its Opposition propose an alternative.

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Apple is mindful of the Court’s admonitions about shortened time. Apple’s Motion to

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Shorten Time acknowledged that shortened time places burdens on the Court and showed that the

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need for shortened time is due to Samsung’s unjustified refusal to produce 14 witnesses for

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deposition so close to the close of discovery.

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Dated: February 17, 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 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

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