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

Filing 767

Declaration of Cyndi Wheeler in Support of #758 Administrative Motion to File Under Seal filed byApple Inc.. (Attachments: #1 Exhibit 1, #2 Exhibit 2)(Related document(s) #758 ) (Hung, Richard) (Filed on 3/5/2012)

EXHIBIT 1

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August 5, 2011

MORRISON & FOERSTER LLP
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Via Email
Victoria Maroulis, Esq.
Quinn Emanuel
555 Twin Dolphin Dr., 5th Floor
Redwood Shores, California 94065
Re:

Apple v. Samsung, Case No. 11-cv-1846-LHK (N.D. Cal.)

Dear Victoria:
This letter responds to your letter to Michael Jacobs of July 28.
Samsung’s Interrogatory No. 1 “Relating to Apple Inc.’s Motion for a Preliminary
Injunction” requests that Apple identify the dates on which Apple became aware of
Samsung’s infringement of the three design patents and one utility patent at issue in Apple’s
preliminary injunction motion. Apple has already responded to this interrogatory, and no
supplementation of its response is necessary.
Apple could not have become aware that the Galaxy Tab 10.1, Infuse 4G, Galaxy S
4G, and Droid Charge were infringing the patents at issue in Apple’s preliminary injunction
motion until these products were released for sale. As Charles Verhoeven expressly noted
during the hearing on Apple’s motion to expedite discovery, Samsung’s unreleased products
“aren’t final, your Honor, and they may change.” (5/12/11 Hearing Tr. 47:8-9.)
Accordingly, even assuming that one or more Apple employees had read news articles
containing advance images or descriptions of these unreleased products, any such employees
could not have confirmed the final appearance and functionality of these products until they
became publicly available for purchase.
In your letter, you also demand that Apple identify other Samsung products that
infringe the four Apple patents at issue in its preliminary injunction motion. Your demand
inappropriately seeks to expand the permissible scope of discovery relating to Apple’s
preliminary injunction motion. As the Court explained, Samsung’s “discovery requests
[should be] reasonable in scope and narrowly tailored to address the preliminary injunction
motion.” (D.N. 115 at 2.)

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Victoria Maroulis, Esq.
August 5, 2011
Page Two
The Federal Circuit authority that you cite, Polymer Techs. v. Bridwell, 103 F.3d 970
(Fed. Cir. 1996), does not support your assertion that “[t]he date [on which] Apple first
became aware of these devices is directly relevant to Apple’s claim of irreparable harm.”
Rather, that decision stands for the opposite proposition:
The fact that other infringers may be in the marketplace does
not negate irreparable harm. A patentee does not have to sue
all infringers at once. Picking off one infringer at a time is not
inconsistent with being irreparably harmed.
Id. at 975. Under Polymer Techs., there is no basis for your contention that Apple’s
awareness of infringement by other Samsung devices (or any other party’s devices that
Apple has accused of infringing its intellectual property, such as Nokia’s) is relevant to
Apple’s claim of irreparable harm.
Response to Interrogatory No. 2
Apple has already produced REDACTED

Apple will supplement its response to this interrogatory to include the
pertinent Bates numbers.
Responses to Interrogatories Nos. 3 & 6
In its responses to these interrogatories, Apple identified the Samsung products that
are the subject of its preliminary injunction motion. Apple will identify other Samsung
products that infringe the four patents at issue in Apple’s preliminary injunction motion
when serving its infringement contentions, consistent with this District’s Patent Local Rules.
As discussed above in connection with Interrogatory No. 1, Samsung has no basis for
demanding that Apple identify other infringing products at this time. In any event, Richard
Lutton already provided testimony on these subjects during his recent deposition.
Responses to Interrogatories Nos. 4 (Corrected & Uncorrected), 5, and 8
Apple’s identification of documents in response to these interrogatories (uncorrected)
is substantially complete, in view of the reasonable and narrowly tailored scope of discovery
appropriate for Apple’s preliminary injunction motion. Apple further notes that the
documents labeled Highly Confidential - Source Code that Apple has made for inspection are
responsive to Interrogatory No. 4 (uncorrected).

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Victoria Maroulis, Esq.
August 5, 2011
Page Three
As for “corrected” Interrogatory No. 4, Samsung’s position that the Court’s July 18,
2011 order does not govern discovery relating to Apple’s preliminary injunction motion is
puzzling. Indeed, Samsung has relied on the issuance of this order to delay serving its own
objections to Apple’s discovery requests -- despite previously agreeing to do so by July 25th.
See July 25, 2011 Briggs E-mail to Bartlett (changing position to note that “Samsung will be
serving its objections to Apple’s discovery pursuant to the Court’s July 18, 2011 Order”).
Regardless, and despite the tardy nature of Samsung’s “corrected” interrogatory,
Apple has already produced prosecution histories and made available for inspection CAD
files containing responsive information under Rule 33(d) of the Federal Rules of Civil
Procedure. Apple also made Chris Stringer available on August 3rd to discuss the
corresponding 30(b)(6) topic, subject to its objections. Should Samsung still believe that
supplementation of these interrogatories is required, Apple is willing to meet and confer on
this subject.
Documents Identified During Richard Lutton’s Deposition
As explained above, Apple will produce theREDACTED

Regarding Samsung’s other requests, they are not relevant to Apple’s preliminary
injunction motion. For example, Samsung’s Request for Production No. 23 (and related
Interrogatory No. 2) requests “all licenses and potential licenses for the DESIGN PATENTS
or the ’381 PATENT.” Mr. Lutton testified that Apple obtained licenses REDACTED
These licenses clearly are not responsive to any of
your discovery requests or the issues in Apple’s preliminary injunction motion.
Concerning Samsung’s request that Apple produce images of Samsung’s products,
your letter misstates Mr. Lutton’s testimony. He testified that he had seen images of these
products, but that he could not recall what specific images he had seen.
Because Samsung is already in possession of its own products and images of the
same, there is nothing to be produced in response to this request. In addition, because
Samsung already has a copy of Apple’s preliminary injunction motion, there is no need for
Apple to produce “any photographs or images that Apple used in its Motion for Preliminary
Injunction.”
Nevertheless, Apple will conduct a reasonable search to determine if Mr. Lutton
possesses any additional documents that are responsive to Samsung’s document requests and
issues relevant to Apple’s preliminary injunction motion. There is no reason to require Mr.

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Victoria Maroulis, Esq.
August 5, 2011
Page Four
Lutton to appear for a second deposition on these documents, however, and Apple does not
intend to make him available.
Documents Identified During Sissie Twiggs’ Deposition
As for the media plans referenced during Sissie Twiggs’ deposition, this information
is not responsive to the two requests that you identified (Request Nos. 26 and 27). This is
because the media plans do not identify the markets or market share for each version of the
iPhone and the iPad, as sought by these requests. Instead, as Ms. Twiggs testified, the media
plans indicate which advertisement will be placed in which media and the amount budgeted
for each advertisement.
Moreover, during her deposition, Ms. Twiggs identified the type of media in which
Apple advertises its iPad and iPhone products -- even identifying the specific media in which
the products have been advertised. She also testified about Apple’s overall advertising
expenditures for the iPad and the iPhone. Accordingly, the documents that you are seeking
are cumulative of Ms. Twiggs’ testimony and of documents that have already been produced,
in any event.
Nevertheless, Apple will conduct a reasonable search for media plans for the iPad and
iPhone products and will produce any media plans that it is able to locate. Apple will not,
however, produce Ms. Twiggs to appear for a second deposition on any such documents.
ComTech Presentation
Finally, we will conduct a reasonable search for any subsequent “ComTech United
States” presentations in Apple’s possession. If any exist and are responsive to Samsung’s
requests, we will produce them.
Sincerely,

Jason R. Bartlett

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