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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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.,

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Case No.
Plaintiff,

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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11-cv-01846-LHK (PSG)

DECLARATION OF ERIK J.
OLSON IN SUPPORT OF APPLE’S
RULE 37(B)(2) MOTION RE
SAMSUNG’S VIOLATION OF
JANUARY 27, 2012 DAMAGES
DISCOVERY ORDER
Date:
Time:
Place:
Judge:

April 3, 2012
10:00 a.m.
Courtroom 5, 4th Floor
Hon. Paul S. Grewal

Defendants.
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PUBLIC REDACTED VERSION

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OLSON DECLARATION ISO APPLE’S RULE 37(B)(2) MOTION RE VIOLATION OF JAN. 27 ORDER
11-CV-01846-LHK (PSG)
pa-1512979

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I, Erik J. Olson, declare as follows:

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I am a partner in the law firm of Morrison & Foerster LLP representing Apple in

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this matter. I am licensed to practice law in the State of California. I have personal knowledge of

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the facts set forth below, except where I note that I am relying on the work of others whom I

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supervise. I make this declaration in support of Apple’s Rule 37(b)(2) Motion Re Samsung’s

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Violation of the January 27, 2012 Damages Discovery Order (“Rule 37 Motion”).

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2.

On August 26, 2011, and October 26, 2011, Apple propounded on Samsung

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detailed requests for the production of relevant documents as to Samsung’s U.S. and worldwide

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revenue, units sales, profits, selling prices, costs, and other financial information. Attached hereto

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as Exhibits 1 and 2, respectively, are true and correct copies of excerpts of Apple Inc.’s Requests

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for Production of Documents and Things Relating to Apple’s Motion for a Preliminary

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Injunction—Set Two, dated August 26, 2011, and Apple Inc.’s Sixth Set of Requests for

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Production of Documents, dated October 26, 2011.

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3.

By mid-December, and after it became clear that Samsung had produced only a

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smattering of unconnected reports, Apple wrote multiple letters to Samsung requesting that

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Samsung produce financial documents in response to Apple’s requests. Attached hereto as

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Exhibits 3, 4, and 5 are true and correct copies of letters from Apple counsel Mia Mazza to

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Samsung counsel Diane Hutnyan on December 19, 26, and 28, 2011, respectively. Samsung did

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not produce significant additional financial documents. At my direction, attorneys for Apple

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confirmed by searching Samsung’s production that Samsung had not yet provided meaningful

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discovery into revenues, profits, and sales on the accused products.

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4.

In January and after Apple noted it would seek relief from the Court by filing a

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motion to compel the next day, Samsung offered to supplement its production of financial

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documents by February 3, 2012. Attached hereto as Exhibit 6 is a true and correct copy of a

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letter, dated January 10, 2012, from Rachel Herrick Kassabian to Harold McElhinny.

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5.

On January 11, 2012, Apple moved to compel the production of financial

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documents. (See Apple’s Motion to Compel Production of Documents and Things, filed

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Jan. 11, 2012, Dkt. No. 613). Apple sought an order requiring Samsung to produce documents by
OLSON DECLARATION ISO APPLE’S RULE 37(B)(2) MOTION RE VIOLATION OF JAN. 27 ORDER
11-CV-01846-LHK (PSG)
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January 23, which would have allowed Apple to use the documents in connection with the

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deposition of

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, which took place on January 24, 2012.
Along with the motion, Apple filed a detailed proposed order granting the motion,

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Dkt. No. 616 (“[Proposed] Order Granting Apple’s Motion to Compel Production of Documents

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and Things”), a true and correct copy of which is attached to the Rule 37 Motion as Appendix A.

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Attached hereto as Exhibit 7 is a true and correct copy of a letter, dated

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January 18, 2012, from Mia Mazza to Rachel Herrick Kassabian, requesting that Samsung

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identify the Bates numbers containing the financial information that Samsung claims to have

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produced. Samsung failed to respond to this request.

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8.

On January 19, 2012, the Court held a hearing on Apple’s January 11 Motion

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to Compel. Attached hereto as Exhibit 8 is a true and correct copy of excerpted portions of the

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transcript of that January 19, 2012 hearing.

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America

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information Apple sought in its Motion to Compel for that deposition; instead, Apple was forced

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to use its limited deposition time

On January 24, 2012, I took the deposition of Samsung Telecommunications
. Apple did not have the financial

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testified that

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Attached hereto as Exhibit 9 is a true and correct copy of excerpted portions of the transcript of

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the deposition of

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Shortly after the deposition of

attorneys for Apple, at my direction,

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searched for the financial documents

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not find them. On January 27, 2012, Apple then wrote to Samsung to confirm that Samsung

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would produce under the Order the financial documents that

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Samsung had not yet produced. Attached hereto as Exhibit 10 is a true and correct copy of that

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letter, dated January 27, 2012, from Erik Olson to Rachel Herrick Kassabian.

, and with few exceptions, did

had identified but that

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OLSON DECLARATION ISO APPLE’S RULE 37(B)(2) MOTION RE VIOLATION OF JAN. 27 ORDER
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Later in the day on January 27, the Court issued an Order, Docket No. 673, on

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Apple’s motion to compel the production of financial documents. The Order stated: “All

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production subject to this order must be completed on a rolling basis and no later than

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February 3, 2012.”

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Attached hereto as Exhibit 11 is a true and correct copy of a letter, dated

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February 1, 2012, from Mark Pernick to Rachel Herrick Kassabian, requesting that Samsung

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respond to Apple’s January 27, 2012 letter confirming that Samsung would produce the identified

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financial documents.

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On February 2, Samsung responded to Apple’s January 27 letter by saying it

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intended to produce documents in accordance with the Order. Attached hereto as Exhibit 12 is a

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true and correct copy of that letter, from Rachel Herrick Kassabian to me.

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On February 3, the last day Samsung could comply with the Order, Samsung

produced

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Attached hereto as Exhibit 13 is a true and correct copy of a letter, dated

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February 4, 2012, from Mark Pernick to Rachel Herrick Kassabian, asking whether Samsung

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intends to produce the documents described in the January 27, 2012 letter.

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On February 6, 2012, lead counsel for Apple and Samsung met and conferred

about the financial documents that Samsung had failed to produce.
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Attached hereto as Exhibit 14 is a true and correct copy of a letter, dated

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February 9, 2012, from Mark Pernick to Rachel Herrick Kassabian, again requesting that

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Samsung identify the specific Bates ranges of financial documents that Samsung contends it

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produced to Apple. Again, Samsung failed to respond.

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OLSON DECLARATION ISO APPLE’S RULE 37(B)(2) MOTION RE VIOLATION OF JAN. 27 ORDER
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Attached hereto as Exhibit 15 is a true and correct copy of a letter, dated

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February 10, 2012, from Marc Pernick to Rachel Herrick Kassabian addressing Samsung’s failure

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to comply with the Court’s January 27 Order. The letter includes, “Exhibit 1:

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Attached hereto as Exhibit 16 is a true and correct copy of a letter, dated

February 12, 2012, from Marc Pernick to Rachel Herrick Kassabian addressing Samsung’s failure

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to produce the documents requested for production in Erik Olson’s January 27, 2012 letter

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(Exhibit 10 above). This letter also identified, for each category of documents that Samsung did

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not produce, which Apple requests for production covering each document category, and notes

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the categories unequivocally covered in the Order.

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Attached hereto as Exhibit 17 is a true and correct copy of a letter, dated

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February 12, 2012, from Marc Pernick to Rachel Herrick Kassabian discussing problems with the

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26-tab Excel spreadsheet, and Samsung’s failure to comply with the Court’s January 27 Order.

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Attached hereto as Exhibit 18 is a true and correct copy of a letter, dated

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February 13, 2012, from Rachel Herrick Kassabian to Marc Pernick. In it, Samsung asserts that

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Samsung fulfilled its obligation to produce financial documents, that Samsung’s production

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satisfies the Court’s January 27 Order, and that Samsung would not produce the documents Apple

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had identified.

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On February 14 and 15, 2012, lead counsel for Apple and Samsung again met and

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conferred regarding the documents Samsung had failed to produce and were unable to make an

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agreement.

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Samsung’s failure to produce financial documents in accordance with the

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February 3 deadline set by the Order has prejudiced Apple. Specifically, the deposition of

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Samsung’s 30(b)(6) witness on various financial topics is scheduled to occur before

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March 8, 2012. The initial exchange of expert reports, including those addressing monetary
OLSON DECLARATION ISO APPLE’S RULE 37(B)(2) MOTION RE VIOLATION OF JAN. 27 ORDER
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damages from infringement, is set to occur on March 22, 2012. Even if the Court orders

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Samsung to produce the requested financial information, such production would be after Apple

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has deposed Samsung’s 30(b)(6) witness and after Apple’s damages experts have prepared their

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reports.

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Lacking basic financial information from Samsung such as sales in units, profits,

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revenues, costs, fixed costs, and allocations for the accused products, as prepared in the ordinary

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course, Apple’s damages expert will not have the information required to prove the full measure

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of Apple’s damages under governing law. Should Samsung produce new, corrected or additional

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financial information, e.g. at the close of fact discovery or before other deposition of individuals

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with financial responsibilities, Apple will be prejudiced by the untimely production, e.g. by

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having to revise its expert reports to reflect profitability data newly produced.

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Apple brought an action against Samsung before the International Trade

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Commission (“ITC”), in which Apple seeks to block importation and sale of the same products as

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at issue in the instant suit, based on the same Apple intellectual property as at issue here. In that

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suit, the ITC has twice ordered Samsung to comply with Apple’s discovery requests. Attached

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hereto as Exhibit 19 is a true and correct copy of the ITC’s most recent order in that case, Order

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No. 14, issued on February 14, 2012.

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I asked attorneys working with me to review the documents produced in both this

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action and the two ITC actions to find any additional documents responsive to Apple’s requests

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and the Court’s order. In the course of this review, we discovered

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There is nothing close to a comprehensive or complete set of
documents in the multiple productions.
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Specifically, the recent review of the ITC 794 documents revealed

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OLSON DECLARATION ISO APPLE’S RULE 37(B)(2) MOTION RE VIOLATION OF JAN. 27 ORDER
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The significance of these documents and their usefulness is

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discussed in the declaration of Eric Roberts. Nonetheless, these sporadic productions show that

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Samsung has access to these documents, that they include relevant, responsive information and

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that Samsung’s failure to produce reflects an intentional decision to withhold them.

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In am familiar with Apple’s document production to Samsung. Apple’s

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productions include more detailed information on financial issues, more comprehensive

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documents in terms of the years and quarters that were included, costed bills of materials,

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additional detailed information on costs and manufacture and marketing of the products, and

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certain reports created in the ordinary course of business or given to management.
I declare under penalty of perjury that the foregoing is true and correct. Executed this
28th day of February, 2012 at San Francisco, California.
/s/ Erik J Olson
Erik J. Olson

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OLSON DECLARATION ISO APPLE’S RULE 37(B)(2) MOTION RE VIOLATION OF JAN. 27 ORDER
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ATTESTATION OF E-FILED SIGNATURE
I, Michael A. Jacobs, am the ECF User whose ID and password are being used to file this

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Declaration. In compliance with General Order 45, X.B., I hereby attest that Erik J. Olson has

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concurred in this filing.

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Dated: February 28, 2012

/s/ Michael A. Jacobs
Michael A. Jacobs

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OLSON DECLARATION ISO APPLE’S RULE 37(B)(2) MOTION RE VIOLATION OF JAN. 27 ORDER
11-CV-01846-LHK (PSG)
pa-1512979

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