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

Filing 759

Administrative Motion to File Under Seal filed by Apple Inc.. (Attachments: #1 Proposed Order, #2 Redacted Public Version of Apple's Rule 37(b)(2) Motion Re Samsung's Violation of January 27, 2012 Damages Discovery Order, #3 Proposed Order, #4 Public Redacted Version of Declaration of Erik J. Olson, #5 Public Redacted Version of the Declaration of Eric R. Roberts)(Jacobs, Michael) (Filed on 2/28/2012)

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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,

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Plaintiff,
v.
SAMSUNG ELECTRONICS CO., LTD., a
Korean corporation; SAMSUNG ELECTRONICS
AMERICA, INC., a New York corporation; and
SAMSUNG TELECOMMUNICATIONS
AMERICA, LLC, a Delaware limited liability
company,

Case No. 11-cv-01846-LHK (PSG)
[PROPOSED] ORDER GRANTING
APPLE INC.’S RULE 37(b)(2)
MOTION RE SAMSUNG’S
VIOLATION OF JANUARY 27, 2012
DAMAGES DISCOVERY ORDER

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Defendants.
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[PROPOSED] ORDER GRANTING APPLE’S 37(B)(2) MOT. RE SAMSUNG’S VIOLATION OF DISCOVERY ORDER
CASE NO. 11-CV-01846-LHK (PSG)
pa-1513201

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Pursuant to Federal Rule of Civil Procedure 37(b)(2), Local Rule 37-4, and the Court’s

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inherent authority, Apple seeks specified further orders arising from conduct by Defendants

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Samsung Electronics Co., Ltd. (“SEC”), Samsung Electronics America, Inc. (“SEA”), and

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Samsung Telecommunications America, LLC (“STA”) (collectively, “Samsung”) that Apple

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contends materially violated the portion of the Court’s January 27, 2011 Order re Discovery

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Motions (Dkt. No. 673) addressing “Sales and financial information relevant to establishing

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damages” (the “Order” or “January 27 Order”). Having considered the arguments of the parties

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and the papers submitted, and GOOD CAUSE HAVING BEEN SHOWN, IT IS HEREBY

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ORDERED that Apple’s Rule 37(b)(2) Motion re Samsung’s Violation of January 27 Order is

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GRANTED.
The Court finds based on clear and convincing evidence that Samsung materially violated

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the January 27 Order by failing to produce highly relevant documents that were subject to the

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Order. The Order arose from Apple’s Motion to Compel, filed on January 11, 2012, which was

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accompanied by a detailed proposed order that sought production of multiple categories of sales

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and financial documents relevant to Apple’s damages case. Samsung opposed the motion on the

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ground that it was moot, and made numerous statements in its opposition papers and at the

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hearing that it would produce documents in all the categories that Apple was seeking. Relying on

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Samsung’s assurances, the Court issued the January 27 Order, which set a deadline of February 3,

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2012 for Samsung to complete its production. On February 3, Samsung produced a document

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labeled “SAMNDCA00323946” in response to most of the categories in the Order, which

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Samsung contended fulfilled its obligations under the Order. Samsung refused to produce

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additional documents that Apple requested.

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As detailed in Apple’s motion and supporting declarations and exhibits, the document at

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issue does not satisfy all the categories of documents that Apple sought, which included for

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example, reports of financial information to Samsung management in the U.S. and Korea.

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Moreover, the document contains highly-summarized information that does not cover all of the

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categories of information that Apple requested, and does not provide Apple with the tools for

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Apple to test the accuracy of the summarized information or to create its own damages model.
[PROPOSED] ORDER GRANTING APPLE’S 37(B)(2) MOT. RE SAMSUNG’S VIOLATION OF DISCOVERY ORDER
CASE NO. 11-CV-01846-LHK (PSG)
pa-1513201

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The document also has a large number of errors and inconsistencies. Apple presented evidence

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that Samsung maintains in the ordinary course of business the types of documents that Apple

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seeks and that Samsung has produced such documents in other litigation. The Court finds that

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Samsung did not satisfy its obligations under the Order.

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Apple has demonstrated that Samsung’s violation of the Order has prejudiced and will

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continue to prejudice Apple, including because Apple did not have access to the documents it

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needed for its damages case at the time that it deposed Samsung’s damages witnesses and when

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its experts prepared their damages reports.

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In light of the quantity and obvious relevance of the withheld materials, Samsung’s

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production in a different litigation of some of the kinds of documents that Apple seeks, and

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Samsung’s refusal to produce the documents in this action notwithstanding its assurances to the

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Court and this Court’s Order, the Court further finds that Samsung’s violation of the Order was

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willful and in bad faith.

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Where, as here, a party has violated a court’s discovery order, Rule 37(b)(2)(A) permits

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the court to make “further just orders.” Pursuant to Rule 37(b)(2)(A) and the Court’s inherent

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authority, the Court orders and finds as follows:

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1. Within one week of the entry of this Order, Samsung shall produce all the documents

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identified in Section V of Apple’s [Proposed] Order Granting Apple’s Motion to

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Compel Production of Documents and Things, Docket No. 616, entitled, “Financial

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Information Relevant to Damages.”

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2. Apple’s damages experts may base their opinions to be offered at trial on the

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documents to be produced under Paragraph 1 above, without providing a new expert

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report and without being deposed after Samsung produces those documents. Samsung

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may not cross-examine Apple’s damages experts based on their expert reports, which

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were prepared without access to those documents.

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3. Apple may depose a Samsung Rule 30(b)(6) witness on the newly produced

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documents to be produced under Paragraph 1 above for a total of no more than 10

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hours, which hours will not count against Apple’s allotted deposition hours.
[PROPOSED] ORDER GRANTING APPLE’S 37(B)(2) MOT. RE SAMSUNG’S VIOLATION OF DISCOVERY ORDER
CASE NO. 11-CV-01846-LHK (PSG)
pa-1513201

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4. Samsung’s expert and any Samsung witnesses may not testify regarding Samsung’s

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sales or profitability based on any document other than the document labeled

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“SAMNDCA00323946.”

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5. Samsung may not seek a continuance or extension of the trial date or any other case

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deadline, or seek to delay any other deadline Samsung faces in this action, based in

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whole or in part on orders issued in connection with this Motion or on any party’s

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actions in compliance with those orders.

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6. The Court hereby finds that Samsung materially violated this Court’s January 27, 2012

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Order re Discovery Motions (Dkt. No. 673) requiring Samsung to produce sales and

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financial information relevant to establishing damages by February 3, 2012.

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IT IS SO ORDERED.

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Dated: ________________, 2012.

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HONORABLE PAUL S. GREWAL
United States Magistrate Judge

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[PROPOSED] ORDER GRANTING APPLE’S 37(B)(2) MOT. RE SAMSUNG’S VIOLATION OF DISCOVERY ORDER
CASE NO. 11-CV-01846-LHK (PSG)
pa-1513201

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