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

Filing 796

Declaration of Marc J. Pernick in Support of #795 MOTION for Sanctions Apple's Rule 37(b)(2) Motion Based on Samsung's Violation of the Court's December 22, 2011 Order Regarding Source Code filed byApple Inc.(a California corporation). (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D, #5 Exhibit E, #6 Exhibit F, #7 Exhibit G)(Related document(s) #795 ) (Jacobs, Michael) (Filed on 3/9/2012)

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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., a California corporation,
Plaintiff,

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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.
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Case No.

11-cv-01846-LHK (PSG)

DECLARATION OF MARC J.
PERNICK IN SUPPORT OF
APPLE’S RULE 37(b)(2) MOTION
BASED ON SAMSUNG’S
VIOLATION OF THE COURT’S
DECEMBER 22, 2011 ORDER
REGARDING SOURCE CODE
Date:
Time:
Place:
Judge:

April 24, 2012
10:00 a.m.
Courtroom 5, 4th Floor
Hon. Paul S. Grewal

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PERNICK DECL. ISO APPLE’S RULE 37(B)(2) MOT. BASED ON VIOLATION OF DEC. 22 ORDER RE: SOURCE CODE
CASE NO. 11-CV-01846-LHK (PSG)
sf-3114935

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I, Marc J. Pernick, declare as follows:

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1.

I am a partner in the law firm of Morrison & Foerster LLP, counsel for Apple Inc.

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(“Apple”). I am licensed to practice law in the State of California. Unless otherwise indicated, I

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have personal knowledge of the matters stated herein or understand them to be true from

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members of my litigation team. I make this Declaration in support of Apple’s Rule 37(b)(2)

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Motion Based on Samsung’s Violation of the Court’s December 22, 2011 Order Regarding

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Source Code.

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2.

Apple’s Infringement Contentions in this case allege that features of 27 Samsung

products infringe eight of Apple’s utility patents. I am informed and believe that Samsung served

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its Invalidity Contentions on October 7, 2011, but did not produce any source code for the

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accused products. I am also informed and believe that, as of early December 2011, Samsung had

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still not produced any source code.

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3.

Samsung produced some source code shortly after the Court issued its

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December 22, 2011 Order. I am informed and believe that this production was limited to code for

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only a single version of each accused product. Samsung’s February 5, 2012 letter to me explains

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how Samsung selected the one version of each accused product for which it produced source

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code. A true and correct copy of this letter is attached hereto as Exhibit A.

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4.

Apple asked Samsung by letter of February 9, 2012 to immediately produce the

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source code for the remaining versions of the accused products, and repeated its request at the

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lead trial counsel meetings on February 14-15, 2012. A true and correct copy of my

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February 9, 2012 letter to Samsung’s counsel regarding that issue is attached hereto as Exhibit B.

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5.

In response to Apple’s requests, Samsung still produced none of the missing

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source code. But Samsung did represent that, for certain accused products, any modifications to

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the unproduced source code did not affect the accused functionalities (with the exception of the

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accused “bounce” functionality). A true and correct copy of a February 14, 2012 letter from

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Samsung’s counsel to me regarding that issue is attached hereto as Exhibit C.

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6.

Samsung also said in this letter (and at the February 14-15, 2012 lead counsel

meetings) that it would continue investigating this issue and report back to us with regard to
PERNICK DECL. ISO APPLE’S RULE 37(B)(2) MOT. BASED ON VIOLATION OF DEC. 22 ORDER RE: SOURCE CODE
Case No. 4:11-cv-01846-LHK
sf-3114935

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additional accused products. At the lead counsel meetings, Samsung stated that it would try to

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complete this investigation by February 22, 2012.

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7.

Samsung did not provide us with any further information on this topic on

February 22, 2012, and did not produce any additional source code on that date.
8.

On February 26, 2012, Apple tried again to resolve or narrow the issues with

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regard to this dispute. On that date, I sent Samsung’s counsel a proposed stipulation for

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Samsung’s consideration. I also asked Samsung to get back to me with any comments regarding

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this stipulation by February 28. A true and correct copy of a February 26, 2012 letter from me to

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Samsung regarding this issue, together with the draft stipulation attached to that letter, is attached

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hereto as Exhibit D.
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Samsung’s counsel asked me on February 27, 2012 to forward a Microsoft Word

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version of our proposed stipulation. A true and correct copy of the email with this request is

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attached hereto as Exhibit E.

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10.

I sent Samsung’s counsel the requested Word version of our proposed stipulation

later that day. A true and correct copy of my email doing so is attached hereto as Exhibit F.

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Samsung did not respond to Apple’s proposal on February 28, 2012.

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12.

On February 29, 2012, I again asked Samsung for comments to our proposed

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stipulation. A true and correct copy of my email doing so is attached hereto as Exhibit G.
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Samsung’s counsel never responded to my email.

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I declare under penalty of perjury that the foregoing is true and correct. Executed on
March 9, 2012, at Palo Alto, California.
/s/ Marc J. Pernick
Marc J. Pernick

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PERNICK DECL. ISO APPLE’S RULE 37(B)(2) MOT. BASED ON VIOLATION OF DEC. 22 ORDER RE: SOURCE CODE
Case No. 4:11-cv-01846-LHK
sf-3114935

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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 Marc J. Pernick has

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concurred in this filing.

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Dated: March 9, 2012

/s/ Michael A. Jacobs
Michael A. Jacobs

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PERNICK DECL. ISO APPLE’S RULE 37(B)(2) MOT. BASED ON VIOLATION OF DEC. 22 ORDER RE: SOURCE CODE
CASE NO. 11-CV-01846-LHK (PSG)
sf-3114935

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