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

Filing 769

Administrative Motion to File Under Seal filed by Apple Inc.(a California corporation). (Attachments: #1 Proposed Order, #2 [Redacted Public Version] Apple Inc.'s Reply in Support of Motion for Rule 37(b)(2) Sanctions, #3 [Redacted Public Version] Reply Declaration of Minn Chung in Support of Apple's Motion for Rule 37(b)(2) Sanctions, #4 [Redacted Public Version] Erik J. Olson Reply Declaration in Support of Apple's Motion for Rule 37(b)(2) Sanctions)(Jacobs, Michael) (Filed on 3/5/2012)

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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]

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., a California corporation,

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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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Case No. 11-cv-01846-LHK (PSG)
REPLY DECLARATION OF ERIK J.
OLSON IN SUPPORT OF APPLE
INC.’S MOTION FOR RULE 37(B)(2)
SANCTIONS FOR SAMSUNG’S
VIOLATION OF TWO DISCOVERY
ORDERS
Date:
Time:
Place:
Judge:

March 27, 2012
10:00 am
Courtroom 5, 4th Floor
Hon. Paul S. Grewal

Defendants.
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REDACTED PUBLIC VERSION

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REPLY OLSON DECL. ISO APPLE’S MOTION FOR RULE 37(B)(2) SANCTIONS
CASE NO. 11-cv-01846-LHK (PSG)
sd-583797

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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, attorneys of record for

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

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

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others whom I supervise. I make this reply declaration in support of Apple’s Motion for Rule

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37(b)(2) Sanctions for Samsung’s Violation of Two Discovery Orders.

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2.

On February 16, 2012, Samsung designated

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, as its

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Rule 30(b)(6) witness to testify on Samsung’s behalf on “market research and analysis, including

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any surveys of customers” regarding what value they place on various technology asserted in the

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case including designs. Attached hereto as Exhibit 1 is a true and correct copy of February 16,

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2012 and February 20, 2012 correspondence from Samsung’s counsel in which Samsung

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designated

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produced any other witness to discuss its survey evidence on customers in the United States.

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3.

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as its Rule 30(b)(6) witness on such topics. Samsung has to date not

deposition was scheduled for and did occur on February 22, 2012.
Less than 72 hours before

deposition, Samsung produced 3,076

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documents totaling in excess of 30,600 pages. These documents included a substantial amount of

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new survey evidence and materials that

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production of new documents is inexplicable given that

This late

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He would, by necessity, be one of the primary sources in any
search for survey evidence at Samsung.
5.

At 9:59 p.m. on February 21, 2012—less than 12 hours before

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deposition—Samsung produced, for the first time, a massive electronic database and associated

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files in native format (SAMNDCA00352061.sav). The electronic database file was located on a

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production volume so large that it took over 7.5 hours to download and unzip. That is, it was not

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available in any form until after 5:30 am in the morning on February 22, 2012.

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REPLY OLSON DECL. ISO APPLE’S MOTION FOR RULE 37(B)(2) SANCTIONS
CASE NO. 11-cv-01846-LHK (PSG)
sd-583797

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6.

The electronic database file cannot be read with any conventional software. It

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requires specialized software used to conduct statistical analysis. Based on my investigation

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since the production, this software program also requires additional training and experience to

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operate effectively.

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The same evening, Samsung also attempted to produce a .pdf version of the same

database file with no functionality,

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The .pdf document is essentially unreadable, and it is entirely unusable as a way

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of interpreting or evaluating the contents of the database. It provides, at best, highly truncated

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information and incomplete information on consumer responses. The .pdf document is itself

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more than 1,150 pages long. At approximately midnight on February 21, Apple asked Samsung

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to bring to

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with the native file and the software necessary to run it.

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8.

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deposition a hard-copy printout of the .pdf document, and a computer

Samsung did not produce either until about an hour after the deposition of
began. Apple’s counsel only had time to review it for less than three hours on the day

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of

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load the electronic file successfully into any other program since that time. These attempts also

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suggest that the database is incomplete or a self-selected set of information.

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deposition while questioning was ongoing. Apple’s counsel has not been able to

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Based on this cursory review during the deposition, however, Apple discovered

that the file in question was

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Samsung’s late production made it impossible for Apple to meaningfully question

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about the database during his deposition. Given Samsung’s designation of

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as the Rule 30(b)(6) designee on topics related to consumer surveys and his role as
REPLY OLSON DECL. ISO APPLE’S MOTION FOR RULE 37(B)(2) SANCTIONS
CASE NO. 11-cv-01846-LHK (PSG)
sd-583797

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the person responsible for such work inside Samsung, this deposition was effectively Apple’s one

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opportunity to get meaningful information about the late-produced survey documents and this

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electronic database from a Samsung witness with knowledge about the U.S. market.

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Moreover, evaluation and use of the electronic database requires the use of an

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expert in statistical analysis. From my review of the file, this would have been apparent to

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Samsung and to its counsel. At the time the production occurred, no expert hired by Apple with

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expertise in statistical methods could view Samsung’s file because it was marked confidential.

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Given that the discovery cut off is March 8, 2012 and expert reports are due on March 22, 2012,

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Samsung’s production of the massive database file months after the deadlines in the Court’s

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orders, two weeks before the discovery cut-off, and less than 30 days before expert reports are

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due has made it impossible to obtain testimony on or analyze its contents. Samsung’s late

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production has significantly prejudiced Apple.

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12.

On January 27, 2012, the Court ordered Samsung to produce multiple categories of

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financial information about the accused products on February 3, 2012. On February 3, 2012,

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Samsung instead produced a single spreadsheet in an effort to satisfy this order. Apple has

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separately moved for sanctions for violation of the Court’s order based on this deficient

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production.

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//

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//
REPLY OLSON DECL. ISO APPLE’S MOTION FOR RULE 37(B)(2) SANCTIONS
CASE NO. 11-cv-01846-LHK (PSG)
sd-583797

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On February 28, 2012, one day prior to the deposition of Samsung’s Rule 30(b)(6)

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designee on financial information and 25 days after the Court ordered deadline, Samsung

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produced a new spreadsheet with new totals and new data. Samsung’s counsel later said that

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Samsung intended this new spreadsheet to supersede the prior February 3, 2012 production.

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Apple’s counsel had less than 24 hours to review and evaluate this new spreadsheet prior to the

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Rule 30(b)(6) deposition. This late, and still deficient, production has significantly prejudiced

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Apple’s ability to seek discovery and follow up on Samsung’s financial information in pursuit of

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Apple’s claim for damages.

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I declare under penalty of perjury that the foregoing is true and correct. Executed this 5th
day of March, 2012, at Palo Alto, California.
/s/ Erik J. Olson
Erik J. Olson

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REPLY OLSON DECL. ISO APPLE’S MOTION FOR RULE 37(B)(2) SANCTIONS
CASE NO. 11-cv-01846-LHK (PSG)
sd-583797

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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: March 5, 2012

/s/ Michael A. Jacobs
Michael A. Jacobs

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REPLY OLSON DECL. ISO APPLE’S MOTION FOR RULE 37(B)(2) SANCTIONS
CASE NO. 11-cv-01846-LHK (PSG)
sd-583797

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