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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Defendants.

11-cv-01846-LHK (PSG)

DECLARATION OF ERIC R.
ROBERTS IN SUPPORT OF
MOTION TO ENFORCE
JANUARY 27, 2012 ORDER AS TO
FINANCIAL DOCUMENTS

Date:
Time:
Place:
Judge:

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

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PUBLIC REDACTED VERSION

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ROBERTS DECLARATION ISO APPLE’S RULE 37 MOTION AS TO VIOLATION OF COURT’S JAN. 27 ORDER
11-CV-01846-LHK (PSG)
pa-1513195

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I, Eric R. Roberts, declare as follows:

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1.

I am the Director of Forensic Accounting Services at Morrison & Foerster LLP,

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and have served in that position since 2006. For the eight years prior to that, I performed the

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same work and function at Morrison & Foerster but under different titles. I have over 40 years of

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financial and accounting experience, including 29 years at Deloitte (19 as a partner). I am a

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Certified Fraud Examiner and I have been certified in financial forensics by the American

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Institute of CPAs, as well as having been a CPA for over 40 years (currently in inactive status). I

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have a BS in Business Administration and an MBA from the University of California, Berkeley.

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2.

As a partner at Deloitte, I was responsible for financial statement audits of both

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large, multinational companies as well as small and startup operations. Many of these clients

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were in high-technology businesses. After several years as an audit partner, I transferred to the

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consulting practice, where I led the litigation support and bankruptcy practice in Northern

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California for 8 years. During that time I testified in many depositions and arbitrations and was

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accepted in federal and state courts both as an accounting and finance expert and as a damages

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expert. I also served as an arbitrator in an accounting-related case.

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3.

At Morrison & Foerster, much of my role is to assist attorneys by analyzing and

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often explaining financial statements and other financial data. I also work on cases involving

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financial or accounting-related matters brought by the Securities and Exchange Commission

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Enforcement Division.

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4.

I have reviewed and analyzed a document produced by Samsung to evaluate

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whether it provided information responsive to the Court’s January 27, 2012 Order requiring the

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production of documents and/or internal Samsung reports relating to, among other things, U.S.

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and worldwide sales, unit sales, costs, selling prices, and profits by accused product by carrier by

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quarter. Attached hereto as Exhibit A is a true and correct copy of

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I understand that

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ROBERTS DECLARATION ISO APPLE’S RULE 37 MOTION AS TO VIOLATION OF COURT’S JAN. 27 ORDER
11-CV-01846-LHK (PSG)
pa-1513195

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While

, it clearly is not

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sufficient and does not provide the detailed data required by the Court’s Order. Nor does it

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provide the level of detail required by a comprehensive damages analysis. The major reasons

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supporting my conclusion are summarized below.

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Amounts cannot be reconciled to audited financial statements or to publicly available

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information because no summary or other data are provided as to sales and expenses of

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non-accused products.

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ROBERTS DECLARATION ISO APPLE’S RULE 37 MOTION AS TO VIOLATION OF COURT’S JAN. 27 ORDER
11-CV-01846-LHK (PSG)
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6.

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the Court order,

Before describing in more detail the deficiencies of

in relation to

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Based on my experience in reviewing internal and external financial statements

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and reports, it is apparent to me that this document was not prepared as a contemporaneous

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business record, but rather

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Further, there is nothing

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about this document that indicates it was ever utilized by Samsung or provided to U.S. or Korean

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management.

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ROBERTS DECLARATION ISO APPLE’S RULE 37 MOTION AS TO VIOLATION OF COURT’S JAN. 27 ORDER
11-CV-01846-LHK (PSG)
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9.

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10.

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ROBERTS DECLARATION ISO APPLE’S RULE 37 MOTION AS TO VIOLATION OF COURT’S JAN. 27 ORDER
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See, e.g.,
as Exhibit C.

, a true and correct copy of which is attached hereto

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ROBERTS DECLARATION ISO APPLE’S RULE 37 MOTION AS TO VIOLATION OF COURT’S JAN. 27 ORDER
11-CV-01846-LHK (PSG)
pa-1513195

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This leads directly into another serious issue with
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the allocation of expenses.

How expenses are allocated to products can significantly impact their profitability.

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In my experience it is highly unusual for companies to directly relate general and administrative

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expenses and certain sales costs to specific products. It is my understanding that

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(See Olson Decl. Ex. 9

In some situations companies will

allocate these costs on a rational and consistent basis for management review and related
purposes.

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16.

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it

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is virtually impossible for a damages expert to determine which costs are fixed and which are

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variable. In my experience, the determination of the types and amount of costs which are fixed

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and variable is a significant input into a damage calculation.

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17.

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ROBERTS DECLARATION ISO APPLE’S RULE 37 MOTION AS TO VIOLATION OF COURT’S JAN. 27 ORDER
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Absent the

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documents

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expenses claimed.

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there is no way for Apple or its experts to verify the

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ROBERTS DECLARATION ISO APPLE’S RULE 37 MOTION AS TO VIOLATION OF COURT’S JAN. 27 ORDER
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I have been informed that Apple attorneys located certain financial documents that

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Samsung produced in the parallel ITC action after Apple filed its motion to compel. I conducted

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a review of these documents to determine if a comprehensive production of these documents

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would provide important information for testing the information in

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above or for calculating an appropriate amount of damages for this case.

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referred to

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ROBERTS DECLARATION ISO APPLE’S RULE 37 MOTION AS TO VIOLATION OF COURT’S JAN. 27 ORDER
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Finally, I have been informed that Samsung produced

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ROBERTS DECLARATION ISO APPLE’S RULE 37 MOTION AS TO VIOLATION OF COURT’S JAN. 27 ORDER
11-CV-01846-LHK (PSG)
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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/ Eric R Roberts
Eric R. Roberts

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ROBERTS DECLARATION ISO APPLE’S RULE 37 MOTION AS TO VIOLATION OF COURT’S JAN. 27 ORDER
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ATTESTATION OF E-FILED SIGNATURE

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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 Eric R. Roberts 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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ROBERTS DECLARATION ISO APPLE’S RULE 37 MOTION AS TO VIOLATION OF COURT’S JAN. 27 ORDER
11-CV-01846-LHK (PSG)
pa-1513195

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