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 C

quinn emanuel trial lawyers | silicon valley
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WRITER'S INTERNET ADDRESS
[e-mail]

February 14, 2012

Marc J. Pernick
Morrison & Foerster
755 Page Mill Road
Palo Alto, CA 94304
Re:

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

Dear Marc:
I write to respond to your letter of February 9, 2011 on the subject of source code. As Apple
knows, the Court’s December 22, 2011 order did not require Samsung to produce every single
version of source code for the accused devices. Apple’s December 2011 motions to compel did
not make such a broad request, and the Court did not sua sponte order it. Samsung complied in
full with the Court’s December 22 order, by producing well over 500 GB of source code for all
accused products.
Nor did the Court’s January 27, 2012 Order require such a production. Apple moved to compel
a much narrower category of source code information on January 11, 2012. In particular, Apple
made a narrow request for Samsung to produce “documents sufficient to show” the versions,
updates or changes to the source code. The Court’s January 27, 2012 order granted only Apple’s
narrow request, and did not require that Samsung produce all versions of source code for the
accused devices. Moreover, the Court recognized the undue burden that even this narrower
production would entail, and explicitly stated that Samsung could negotiate a stipulation
regarding the functionality of the accused products. Samsung is exploring that option now.
Samsung reserves the right to seek relief from the Court if Apple continues to unreasonably
demand irrelevant versions of Samsung source code which have nothing to do with the accused
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features.
Apple has requested that Samsung provide version information regarding Android code, because
it alleges that Samsung’s source code provides “no indication of which code versions were
produced for each accused device.” Apple is wrong. The Android source code produced by
Samsung does include such information. For example, the Samsung Vibrant runs Froyo, a.k.a.
Android version 2.2. This can be seen in the folder 4_Vibrant_T-Mobile_SGHT959\ANRD_PROD\ USA-GSM\2010\TMO\T959_Froyo \Android\frameworks\base\api, which
indicates the highest API level for the Android code. Apple need only inspect the code to locate
similar information in all of the remaining Samsung code.
In addition, Samsung is moving swiftly to produce additional information regarding any changes
to source code that may be relevant to the accused functionalities. This is a lengthy process
involving multiple versions of source code for dozens of Samsung products, and represents a
significant burden on Samsung. Nevertheless, Samsung can confirm that modifications to source
code for the following products have not affected the accused functionalities other than bounce:
Captivate, Continuum, Epic 4G, Exhibit 4G, Fascinate, Galaxy Ace Showcase, Galaxy S 4G,
Gravity Smart, Indulge, Intercept, Mesmerize, Nexus, Nexus S, Nexus S 4G, Replenish,
Showcase Galaxy S, Sidekick, Transform, Vibrant, and the Galaxy Tab (AT&T, Sprint, TMobile and Verizon versions). Samsung is continuing to collect information on the remaining
products and will provide a complete accounting of Samsung’s products as soon as its
investigation is complete.
With respect to Apple’s request to install certain software on the source code computers,
Samsung would be amenable to installing the software promptly if Apple will likewise install the
following onto its source code computers: cscope, ctags, vim, and vimdiff. Apple’s additional
request to have public versions of Android installed on the source code computer is not
contemplated by the Protective Order; however, Samsung is currently considering Apple’s
request.

Sincerely,
/s/ Rachel Herrick Kassabian
Rachel Herrick Kassabian

02198.51845/4597186.4

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