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

Filing 758

Administrative Motion to File Under Seal filed by Samsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: #1 Declaration of Melissa Chan In Support of Samsung's Administrative Motion to File Under Seal, #2 Proposed Order Granting Samsung's Motion to Seal, #3 REDACTED Samsung's Opposition to Apple's Motion for Sanctions, #4 Declaration of Sara Jenkins In Support of Samsung's Opposition to Apple's Motion for Sanctions - REDACTED, #5 Exhibit A to Jenkins Declaration, #6 Exhibit B to Jenkins Declaration, #7 Exhibit C to Jenkins Declaration, #8 Exhibit D to Jenkins Declaration, #9 Exhibit E to Jenkins Declaration, #10 Exhibit F to Jenkins Declaration, #11 Exhibit G to Jenkins Declaration, #12 Exhibit H to Jenkins Declaration, #13 Exhibit I to Jenkins Declaration, #14 Exhibit J to Jenkins Declaration, #15 Exhibit K to Jenkins Declaration, #16 Exhibit L to Jenkins Declaration, #17 Exhibit M to Jenkins Declaration, #18 Exhibit N to Jenkins Declaration, #19 Exhibit O to Jenkins Declaration, #20 Certificate/Proof of Service)(Maroulis, Victoria) (Filed on 2/25/2012)

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1 QUINN EMANUEL URQUHART & SULLIVAN, LLP Charles K. Verhoeven (Cal. Bar No. 170151) 2 charlesverhoeven@quinnemanuel.com 50 California Street, 22nd Floor 3 San Francisco, California 94111 Telephone: (415) 875-6600 4 Facsimile: (415) 875-6700 5 Kevin P.B. Johnson (Cal. Bar No. 177129) kevinjohnson@quinnemanuel.com 6 Victoria F. Maroulis (Cal. Bar No. 202603) victoriamaroulis@quinnemanuel.com 7 555 Twin Dolphin Drive 5th Floor Redwood Shores, California 94065 8 Telephone: (650) 801-5000 Facsimile: (650) 801-5100 9 Michael T. Zeller (Cal. Bar No. 196417) 10 michaelzeller@quinnemanuel.com 865 S. Figueroa St., 10th Floor 11 Los Angeles, California 90017 Telephone: (213) 443-3000 12 Facsimile: (213) 443-3100 13 Attorneys for SAMSUNG ELECTRONICS CO., LTD., SAMSUNG ELECTRONICS 14 AMERICA, INC. and SAMSUNG TELECOMMUNICATIONS AMERICA, LLC 15 16 UNITED STATES DISTRICT COURT 17 NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION 18 APPLE INC., a California corporation, Plaintiff, 19 20 CASE NO. 11-cv-01846-LHK DECLARATION OF SARA JENKINS IN SUPPORT OF SAMSUNG’S OPPOSITION TO APPLE'S MOTION FOR RULE 37(B)(2) SANCTIONS vs. 21 SAMSUNG ELECTRONICS CO., LTD., a Korean business entity; SAMSUNG 22 ELECTRONICS AMERICA, INC., a New York corporation; SAMSUNG 23 TELECOMMUNICATIONS AMERICA, LLC, a Delaware limited liability company, 24 Defendants. 25 Date: March 6, 2012 Time: 10:00 a.m. Place: Courtroom 5, 4th Floor Judge: Hon. Paul S. Grewal REDACTED 26 27 28 02198.51855/4617652.3 Case No. 11-cv-01846-LHK JENKINS DECLARATION IN SUPPORT OF SAMSUNG’S OPPOSITION TO APPLE'S MOTION FOR RULE 37(B)(2) SANCTIONS 1 I, Sara Jenkins, declare: 2 1. I am an associate in the law firm of Quinn Emanuel Urquhart & Sullivan, LLP, 3 counsel for Samsung Electronics Co., Ltd., Samsung Electronics America, Inc. and Samsung 4 Telecommunications America, LLC (collectively, “Samsung”). 5 the State of California. I am licensed to practice law in I submit this declaration in support of Samsung’s Opposition to Apple’s 6 Motion to For Rule 37(B)(2) Sanctions for Samsung’s Violation of Two Discovery Orders. I 7 have personal knowledge of the facts set forth in this declaration and, if called upon as a witness, I 8 could and would testify to the following facts. 9 The Court Sets Strict Limits For “Narrowly Tailored” Preliminary Injunction Discovery. 10 2. Early in the case, Apple urged the Court to adopt an expedited and limited 11 discovery schedule for its “focused,” motion “limited to three design patents and one utility 12 patent.” (Dkt. No. 100 at 1, 2.) Based on these representations, the Court limited the 13 injunction-related discovery phase, instructing the parties to “keep discovery requests reasonable 14 in scope and narrowly tailored to address the preliminary injunction motion.” (Dkt. No. 115. at 15 2 .) 16 3. Over the next several months, Apple repeatedly stated that the scope of discovery 17 for the preliminary injunction was “narrowly tailored,” in justifying its limited production of 18 documents in response to Samsung’s discovery requests. Attached as Exhibit A is a true and 19 correct copy of an August 5, 2011 letter from Jason Bartlett to Victoria Maroulis. In this letter, 20 Apple refused to provide complete discovery responses regarding Apple’s infringement positions 21 relating to the four Apple patents at issue in the preliminary injunction motion stating that 22 “Samsung’s ‘discovery requests [should be] reasonable in scope and narrowly tailored to address 23 the preliminary injunction motion.” 24 4. Similarly, in its preliminary injunction-related discovery responses, Apple made 25 clear that it was only “conducting a reasonable investigation appropriate for the limited 26 preliminary injunction discovery.” Attached hereto as Exhibit B is a true and correct copy of 27 Apple's Supplemental Responses to Interrogatories 1,3, and/or 6 dated 9/30/11. 02198.51855/4617652.3 28 Case No. 11-cv-01846-LHK -2JENKINS DECLARATION IN SUPPORT OF SAMSUNG’S OPPOSITION TO APPLE'S MOTION FOR RULE 37(B)(2) SANCTIONS 1 Apple Propounds Belated and Sweepingly Broad Preliminary Injunction Discovery Demands 2 5. In contrast to the two-month time-frame Samsung gave Apple to respond to 3 Samsung's preliminary injunction-related document requests (serving them on July 6, 2011), 4 Apple waited until August 26, 2011 – the very last day for propounding such discovery and over 5 two months after it filed its preliminary injunction motion – before serving the vast majority of its 6 preliminary injunction discovery requests. 7 6. Apple effectively sought a full-fledged production of general discovery in just 8 seventeen days. Below are just some of Apple’s preliminary injunction requests that capture the 9 breadth of subject matter that Apple pursued: 10 a. REQUEST NO. 158: All Documents relating to the design, development, 11 or implementation of the following features of the Products at Issue: (1) their Hardware 12 Design; (2) the functionality that allows for a list to be scrolled beyond its terminus or a 13 document to be translated beyond its edge until the list or document is partially displayed; 14 and (3) functionality that allows for a list that is scrolled beyond its terminus to scroll back 15 or bounce back into place or for a document that is translated beyond its edge to translate 16 back or bounce back so that the list or document returns to fill the screen. 17 b. REQUEST NO. 161: All Documents and things relating to the design of 18 the Hardware Design of the Products at Issue, including for example, CAD images or files, 19 emails, notebooks, photographs, sketches, design specifications, models, mock-ups, and 20 other design documents. 21 c. REQUEST NO. 163: All Documents relating to functional and cost 22 considerations that constrained or altered the Hardware Design of the Products at Issue. 23 d. REQUEST NO. 164: All Documents relating to aesthetic considerations 24 relating to the Hardware Design of the Products at Issue. 25 e. REQUEST NO. 167: All Documents to the design of the user interface for 26 each of the Products at Issue. 27 02198.51855/4617652.3 28 Case No. 11-cv-01846-LHK -3JENKINS DECLARATION IN SUPPORT OF SAMSUNG’S OPPOSITION TO APPLE'S MOTION FOR RULE 37(B)(2) SANCTIONS 1 f. REQUEST NO. 204: All Documents relating to your analysis, review, 2 consideration, or copying of, or comparison against, any Apple product or product feature, 3 including (1) their Hardware Design; (2) the functionality that allows for a list to be 4 scrolled beyond its terminus or a document to be translated beyond its edge until the list or 5 document is partially displayed; and (3) functionality that allows for a list that is scrolled 6 beyond its terminus to scroll back or bounce back into place or for a document that is 7 translated beyond its edge to translate back or bounce back so that the list or document 8 returns to fill the screen. 9 10 11 12 13 14 15 16 17 g. REQUEST NO. 206: All Documents relating to any customer surveys, studies, analyses or investigations regarding the Products at Issue. h. REQUEST NO. 207: All Documents identifying or analyzing the market or markets to which Samsung intends to sell the Products at Issue. i. REQUEST NO. 208: All Documents created within the last five years relating to Samsung’s actual or projected smartphone market share. j. REQUEST NO. 209: All Documents created within the last five years relating to Samsung’s actual or projected tablet computer market share. k. REQUEST NO. 214: All Documents relating to marketing of any Products 18 at Issue that discuss or refer directly or indirectly to Apple or Apple products, including 19 copies of all advertisements or other promotional materials, marketing plans, market 20 surveys, focus group studies, or other documents related to testing of advertisements or 21 advertisement messaging. Documents responsive to this Request include, but are not 22 limited to, your “Hello” marketing campaign relating to the Galaxy S, your “See Flash 23 Run” marketing campaign for the Galaxy Tab, and your “Appelmos” (“Applesauce”) 24 marketing campaign relating to the Galaxy S II. 25 l. REQUEST NO. 215: All Documents relating to any instances of consumer 26 confusion in which Samsung was made aware that a person confused an Apple product for 27 a Product at Issue, or a Product at Issue for an Apple product. 02198.51855/4617652.3 28 Case No. 11-cv-01846-LHK -4JENKINS DECLARATION IN SUPPORT OF SAMSUNG’S OPPOSITION TO APPLE'S MOTION FOR RULE 37(B)(2) SANCTIONS 1 7. Apple's belated service of its requests proved extremely burdensome to Samsung, 2 given the large number of document custodians and the difficulties of collecting documents 3 overseas. 4 8. On September 1, 2011, four business days after receiving Apple’s August 26 5 document requests, Samsung began producing documents to Apple. Samsung ultimately 6 produced preliminary injunction-related documents both before and after the rolling deadline (as 7 Apple did with its preliminary injunction production), providing them to Apple as expeditiously as 8 possible given the circumstances. Samsung had produced more than 32,000 pages of documents 9 by September 20, 2011. 10 Samsung's Substantial Compliance with the September 28 Order 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 02198.51855/4617652.3 28 Case No. 11-cv-01846-LHK -5JENKINS DECLARATION IN SUPPORT OF SAMSUNG’S OPPOSITION TO APPLE'S MOTION FOR RULE 37(B)(2) SANCTIONS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Apple Warns Samsung to Expect to See Documents Responsive to Samsung's Preliminary Injunction Requests During the General Discovery Phase 21 15. Attached hereto as Exhibit D is a true and correct copy of a letter from Michael 22 Jacobs to Victoria Maroulis dated October 7, 2011 in which Mr. Jacobs warns Samsung that 23 “[s]ome of the documents located as part of” Apple’s general discovery process “may also be 24 responsive to Samsung’s preliminary injunction discovery requests.” 25 26 27 02198.51855/4617652.3 28 Case No. 11-cv-01846-LHK -6JENKINS DECLARATION IN SUPPORT OF SAMSUNG’S OPPOSITION TO APPLE'S MOTION FOR RULE 37(B)(2) SANCTIONS 1 Apple’s December Motion to Compel and the Court’s December 22, 2011 Order 2 16. At the time of Apple's filing of a motion to compel on December 8, the parties had 3 been in the midst of negotiating various discovery agreements, including an agreement to 4 reciprocally produce 5 6 7 8 9 10 11 12 13 14 15 Samsung's Substantial Compliance with the Court's December 22 Order 16 17 18 19 20 21 22 23 24 25 26 27 02198.51855/4617652.3 28 Case No. 11-cv-01846-LHK -7JENKINS DECLARATION IN SUPPORT OF SAMSUNG’S OPPOSITION TO APPLE'S MOTION FOR RULE 37(B)(2) SANCTIONS 1 Apple’s Failure to Produce Relevant Documents Prior to the Preliminary Injunction 2 Hearing 3 21. As preliminary injunction discovery came to a close, Samsung discovered that 4 Apple had failed to produce material evidence that was responsive to Samsung's discovery 5 requests during the preliminary injunction phase. 6 22. Samsung had requested emails from Apple's design inventors of Apple's asserted 7 patents during preliminary injunction related discovery. Attached hereto as Exhibit G is a true 8 and correct copy of excerpts of Samsung’s Requests for Production of Documents and Things 9 Relating to Apple Inc.’s Motion for a Preliminary Injunction, dated July 6, 2011.. Apple 10 ultimately admitted that it had never searched its design inventors' email for responsive 11 documents. 12 23. Apple failed to produce a highly relevant 13 14 15 16 17 This document is responsive to Samsung’s preliminary injunction 18 requests, but Apple did not produce it until after the preliminary injunction hearing. 19 24. Attached hereto as Exhibit I is a true and correct copy of excerpts taken from the 20 deposition of Christopher J. Stringer, dated February 15, 2012. 21 25. Apple has produced numerous documents describing 22 23 24 25 26 27 02198.51855/4617652.3 28 Case No. 11-cv-01846-LHK -8JENKINS DECLARATION IN SUPPORT OF SAMSUNG’S OPPOSITION TO APPLE'S MOTION FOR RULE 37(B)(2) SANCTIONS 1 2 3 4 5 6 7 8 9 26. Apple periodically has experienced technical problems with its document 10 production. For instance, notwithstanding the Court’s December 22, 2011, Order to produce 11 documents three (3) days before deposition, Apple dropped approximately 17,000 pages of 12 documents on Samsung the night before the scheduled deposition of Richard Dinh, citing “a 13 technical issue.” Attached hereto as Exhibit O is a true and correct copy of a letter from Mia 14 Mazza to Sara Jenkins, dated February 15, 2012. 15 27. On January 27, 2012, the Court Ordered that Apple produce several categories of 16 documents, and that “[a]ll production subject to this order must be completed on a rolling basis 17 and no later than February 3, 2012, with priority placed on completing relevant production no later 18 than three-days prior to any deposition.” (Dkt. No. 673 at 2) Yet, Apple recently admitted that 19 Apple did not comply in several respects with the Court’s Order. First, Apple admitted that “due 20 to processing errors.” Apple could not produce Bates numbered survey reports, marketing reports, 21 and media plans for iPhone, iPod touch, and iPad products until February 9, six days after the 22 court-ordered deadline. Second, Apple admitted that is still searching for and producing 23 documents responsive to Samsung’s Request for Production No. 55, now twenty days after the 24 court-ordered deadline. Third, Apple admitted that it produced its “Financial Documents” on 25 February 5 and February 16, 2012, between two and thirteen days after the court-ordered deadline. 26 I declare under penalty of perjury under the laws of the United States that the foregoing is 27 true and correct. 02198.51855/4617652.3 28 Case No. 11-cv-01846-LHK -9JENKINS DECLARATION IN SUPPORT OF SAMSUNG’S OPPOSITION TO APPLE'S MOTION FOR RULE 37(B)(2) SANCTIONS 1 Executed in Redwood Shores, California on February 25, 2012. 2 3 4 By /s/ Sara Jenkins Sara Jenkins . 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 02198.51855/4617652.3 28 Case No. 11-cv-01846-LHK -10JENKINS DECLARATION IN SUPPORT OF SAMSUNG’S OPPOSITION TO APPLE'S MOTION FOR RULE 37(B)(2) SANCTIONS

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