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)

Exhibit B

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February 9, 2012

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By Email ([e-mail]) and Overnight Delivery
Rachel Herrick Kassabian
Quinn Emanuel
555 Twin Dolphin Drive, Fifth Floor
Redwood Shores, CA 94065
Re:

Apple v. Samsung, Case No. 11-cv-1846-LHK (PSG) (N.D. Cal.)
Subject to Protective Order––Contains Samsung AEO Information

Dear Rachel:
I write regarding Samsung’s production of source code for the accused devices. To date,
Samsung’s production of source code has been limited to only a single version of source
code for each accused device. If any accused device ran more than a single version of
code––which appears to be what Samsung’s change logs indicate––Samsung must produce
those other versions of source code as well. The Court’s December 22, 2011 Order makes
this clear.
Apple’s December 8, 2011 motion to compel sought an order directing Samsung to produce
its source code for the accused devices. As Apple’s motion pointed out, this source code is
responsive to several Apple Requests for Production (such as RFP Nos. 224, 228, and 232),
and is required by Patent Local Rule 3-4(a). Apple’s motion requested the production of,
“[a]t minimum[,] the items listed in the Proposed Order filed herewith.” (Apple 12/8/11
Mot. to Compel Production of Docs. & Things at ii.) Apple’s proposed order then specified
that Samsung must produce its source code relating to a range of accused functions “in any
Samsung product at issue.” (Apple’s 12/8/11 [Proposed] Order Granting Apple’s Mot. to
Compel Production of Docs. & Things at 2-3 (emphasis added).) There was no limitation
restricting the requested relief to only certain versions of the Samsung source code.
The Court’s December 22, 2011 decision on Apple’s motion was unambiguous. The Court
held that Samsung needed to produce (with one exception not relevant here) “the source code
and technical documents requested by Apple’s motion.” (12/22/11Order at 2.) The Order
contained no carve-outs that would limit the mandated production to only a single version of
code per accused device. And, the Court’s Order required production of the code at issue by

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February 9, 2012
Page Two
December 31, 2011. Samsung’s production of all versions of its code for the accused
devices is thus over six weeks past due.
Time is running out for discovery. Please produce the source code by February 14, 2012.
Given the Court’s Order, Samsung has no basis to withhold it. The only alternative to
Samsung producing all versions of its code that would be acceptable to us is for Samsung to
stipulate that any versions of source code that it has not produced do not materially differ
from the produced versions with regard to their implementations of the accused
functionalities; we are prepared to discuss the details of such a stipulation. Absent that,
Apple needs to receive the source code that was due on December 31st immediately.
Finally, the production of all of the required code versions will necessitate additional
software and reference code on the source code review computers at your office. In
accordance with Paragraph 11(c) of the Protective Order, Apple requests that the enclosed
software be installed on the source code review computers: Slick Edit, Source-Navigator,
PowerGrep, ExamDiff Pro, and WinDiff. Apple also asks that copies of the public versions
of Android that correspond to those on the accused devices be made accessible on the review
computer to facilitate comparisons across versions. Apple will provide a hard drive with the
relevant public versions of Android that it has identified, and it reserves the right to
supplement this set after Samsung has identified all of the Android versions associated with
the accused devices.
If Samsung is unwilling to make the production requested above by February 14, 2012, we
will add this to the agenda for the February 14th lead counsel meet-and-confer session.
However, please note that, especially because this is discovery that the Court has already
ordered Samsung to produce––and because it has already been covered in the meet-andconfer discussions that led to Apple’s original motion––we will expect to resolve any
disputes on this either before or at the lead counsel meeting. To that end, if Samsung objects
to producing the materials requested in this letter, please explain the bases for its objection
right away.
Sincerely,
/s/ Marc J. Pernick
Marc J. Pernick
Encl.

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