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

Filing 773

RESPONSE (re #736 Administrative Motion to File Under Seal ) Opposition to Apple's Motion to Compel filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC(a Delaware limited liability company). (Attachments: #1 Proposed Order Granting Administrative Motion to File Documents Under Seal, #2 Declaration of Hankil Kang in Support of Samsung's Motion to File Documents Under Seal, #3 Exhibit Samsung's Redacted Opposition to Apple's Motion to Compel, #4 Declaration of Joby Martin In Support of Samsung's Opposition to Apple's Motion to Compel, #5 Exhibit A to Declaration of Joby Martin, #6 Proposed Order Denying Apple's Motion to Compel)(Maroulis, Victoria) (Filed on 3/6/2012)

Exhibit 2

1 QUINN EMANUEL URQUHART & SULLIVAN, LLP
Charles K. Verhoeven (Bar No. 170151)
 [e-mail]
50 California Street, 22nd Floor
 San Francisco, California 94111
Telephone: [phone]
 Facsimile: [phone]
 Kevin P.B. Johnson (Bar No. 177129)
[e-mail]
 Victoria F. Maroulis (Bar No. 202603)
[e-mail]
th
 555 Twin Dolphin Drive, 5 Floor
Redwood Shores, California 94065-2139
 Telephone: [phone]
Facsimile: [phone]

 Michael T. Zeller (Bar No. 196417)
[e-mail]
 865 S. Figueroa St., 10th Floor
Los Angeles, California 90017
 Telephone: [phone]
Facsimile: [phone]

 Attorneys for SAMSUNG ELECTRONICS CO.,
LTD., SAMSUNG ELECTRONICS AMERICA,
 INC. and SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC



UNITED STATES DISTRICT COURT



NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION


 APPLE INC., a California corporation,

ASE NO. 11-cv-01846-LHK (PSG)



DECLARATION OF JOBY MARTIN IN
SUPPORT OF SAMSUNG’S OPPOSITION
TO APPLE’S MOTION TO COMPEL
APEX WITNESSES



Plaintiff,
vs.

 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,

Defendant.


Date:
Time:
Place:
Judge:

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


02198.51855/4637106.1

Case No. 11-cv-01846-LHK (PSG)
MARTIN DECLARATION IN SUPPORT OF SAMSUNG’S OPPOSITION

1

I, Joby Martin, declare as follows:



1.

I am an associate with the law firm of Quinn Emanuel Urquhart & Sullivan, LLP,

 counsel for Samsung Electronics Co., Ltd., Samsung Electronics America, Inc. and Samsung
 Telecommunications America, LLC (collectively, “Samsung”). I submit this declaration in
 support of Samsung’s Opposition to Apple’s Motion to Compel Apex Witnesses (“Samsung’s
 Opposition”). I have personal knowledge of the facts set forth in this declaration, except as
 otherwise noted, and, if called upon as a witness, I could and would testify to such facts under
 oath.


2.

Between January 5, 2012, when Samsung first raised its apex objections to the

 depositions of certain senior executives, and the date of this filing, Samsung has repeatedly
 narrowed its apex objections down from 23 to 17, to 14, to 10, to 9 executives. During that time,
 Apple refused to make even a single concession as to any of Samsung's apex executives. On
 March 2, 2012, for the first time, Apple offered to drop its demand for the deposition of one of
 Apple's apex executives, if Samsung would agree not to depose Deborah Goldsmith, a critical
 witness whom another Apple witness described as a witness with knowledge regarding the
 world clock feature – the precise feature accused by Samsung’s ‘055 patent in this case. Apple's
 offer was unacceptable given the critical importance of Ms. Goldsmith, but Samsung did
 propose in a counteroffer to drop another witness in exchange for Apple dropping Mr. Chi – Ms.
 Goldsmith's supervisor, George Dicker. As of this filing, Apple has not responded to Samsung's
 offer.


3.

Since Samsung filed its Notice of Motion And Motion For A Protective Order on

 February 23, 2012, Samsung has made further concessions through additional meet and confer
 efforts, and has offered to make available for deposition Dr. Seungho Ahn. Thus, Samsung no
 longer seeks a protective order precluding the deposition of Dr. Ahn. However, other than their
 belated March 2 offer, Apple has neither offered to withdraw notices nor agreed to discuss
 whether additional 30(b)(6) witnesses could alleviate the need to depose apex executives.


4.

Samsung has designated 21 30(b)(6) witnesses covering approximately 160

 topics and subtopics to date. Samsung has designated SEC employees Seongwoo Kim, Sungho
02198.51855/4637106.1

Case No. 11-cv-01846-LHK (PSG)
-1MARTIN DECLARATION IN SUPPORT OF SAMSUNG’S OPPOSITION

1 Choi and Junwon Lee to testify regarding topics related to licensing and participation in
2 standards-bodies; SEC employees Minsuk Kim and Yunjung Lee to testify regarding topics
3 relating to the design of the accused products; SEC employees Heonseok Lee, Kiwon Lee, Sung
4 Hee Hwang, Han-Soo Jung, Joon-Il Choi, Wookyun Kho, Ioi Lam, and Dooju Byun to testify
5 regarding topics related to the technical development of allegedly infringing product features;
6 SEC employee Oh Chae Kwon and STA employees Todd Pendleton and Tim Benner to testify
7 regarding topics related to consumer research and the marketing of the accused products; Tim
8 Sheppard (STA’s Vice President of Finance and Accounting), Justin Denison (STA’s Chief
9 Strategy Officer), and Jae-Hwan Sim (Vice president of SEC's Business Operations Group) to
10 testify regarding topics relating to financials and business planning; and SEC employee GiSang
11 Lee to testify regarding topics relating to the Samsung patents-in-suit and the technology
12 disclosed in the ’055 and ’871 Patents.
13

5.

Samsung noticed the depositions of several Apple executives in early February,

14 2012. On February 14, 2012, during the lead counsel meet and confer, Samsung asked Apple to
15 confirm whether they would be objecting to any of the noticed witnesses on apex grounds.
16 Apple replied that it was still considering the issue.
17

6.

On February 20, 2012, after Apple first filed its Motion to Compel, Samsung

18 once again reached out to Apple by e-mail to inquire whether Apple would be objecting on apex
19 grounds to the noticed Apple senior executives. Apple did not respond. It was not until
20 February 23, 2012, the same day Samsung filed its motion for a protective order, that Apple
21 informed Samsung that it was objecting to no fewer than twenty two different deposition notices.
22 Apple stated that “some of these individuals would qualify as ‘apex’ witnesses,” but failed to
23 identify precisely which were supposed apex witnesses. A true copy of this letter is attached as
24 Exhibit A.
25

7.

I am informed and believed that during the February 17, 2012 deposition of Don

26 Joo Lee, the head of Sales and Marketing for SEC’s Mobile Communications division, Apple’s
27 counsel asked questions including, “[t]he iPhone was a revolutionary product when it was first
28 released in 2007; isn’t that right?,” “[t]he iPhone had a major impact on the smartphone
02198.51855/4637106.1

Case No. 11-cv-01846-LHK (PSG)
-2MARTIN DECLARATION IN SUPPORT OF SAMSUNG’S OPPOSITION

1 business,” and whether it was a successful product. Apple’s counsel also questioned Mr. Lee on
2 whether Samsung was interested in creating products with “desire, intrigue and delight.” It was
3 not until almost 4:30 p.m. that Apple asked Mr. Lee questions regarding his statements to the
4 media regarding the Galaxy Tab, the stated objective of the deposition. Samsung spent one hour
5 on that line of questioning.
6

8.

I am informed and believe that during the March 1, 2012 deposition of Sungsik

7 Lee, Vice President of UX Design Part 1, Apple spent the majority of its time asking him
8 whether he had seen various documents, and asked very few (and in most cases, no) substantive
9 questions about the documents. Despite Mr. Lee’s important role regarding UX design for the
10 Galaxy S smartphone products, Apple’s counsel asked him just a handful of substantive
11 questions, and did not bother to ask Mr. Lee even the most basic of substantive questions such as
12 how the Galaxy S UX was conceived of or designed. In Apple’s motion to compel, Apple
13 points to an email message in which Apple claims that Mr. Choi purportedly urges UX
14 executives to avoid “clinging to the past generation” and cites the iPhone as an example of the
15 new generation (MTC at 10). In fact, Vice President Sungsik Lee wrote that email, not Mr.
16 Choi. Mr. Choi was not an author or a recipient of that email. And at his deposition, I am
17 informed and believe that Mr. Lee (who was asked just a few questions about his email)
18 confirmed that the contents of the email were his words, not those of Mr. Choi.
19

9.

I am informed and believe that during Jungmin Yeo’s deposition, when she was

20 asked about redesigning, she responded, “I don’t – we haven’t done redesigned (sic) – we
21 haven’t done redesign.”
22

10.

I am informed and believe that during Ahyoung Kim’s deposition, when he was

23 asked about Samsung’s largest competitor, he responded, “I think that can vary, depending on
24 the situation and – and depending on the product . . . I believe all the competitors who
25 manufacture the same level products will be all competitors.”
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Case No. 11-cv-01846-LHK (PSG)
-3MARTIN DECLARATION IN SUPPORT OF SAMSUNG’S OPPOSITION

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Executed on March 5, 2012, at San Francisco, California.

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/s/ Joby Martin
JobyMartin

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Case No. 11-cv-01846-LHK (PSG)
-4MARTIN DECLARATION IN SUPPORT OF SAMSUNG’S OPPOSITION