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 D

755 PAGE MILL ROAD
PALO ALTO
CALIFORNIA 94304-1018
TELEPHONE: [phone]
FACSIMILE: 650.494.0792
WWW.MOFO.COM

February 26, 2012

MORRISON & FOERSTER LLP
NEW YORK, SAN FRANCISCO,
LOS ANGELES, PALO ALTO,
SACRAMENTO, SAN DIEGO,
DENVER, NORTHERN VIRGINIA,
WASHINGTON, D.C.
TOKYO, LONDON, BRUSSELS,
BEIJING, SHANGHAI, HONG KONG

Writer’s Direct Contact
650.813.5718
[e-mail]

By Email ([e-mail])
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.)

Dear Rachel:
During the lead counsel meet-and-confer sessions that we held on February 14-15, 2012, the
parties discussed how to handle Samsung’s failure to produce all of the source code required
by the Court’s December 22, 2011 Order. We in particular discussed reaching a stipulation
as to versions of the accused products for which Samsung had not yet produced source code.
Your February 14th letter set out a list of accused products for which Samsung represented
that any versions for which it had not yet produced source code did not––except with regard
to U.S. Patent No. 7,469,381––materially differ from the version for which Samsung had
produced source code. You also stated in our meetings (as reflected in your February 14th
letter) that Samsung would continue to investigate this issue, and would report back to us on
whether additional accused products could be added to that list. We expected to hear from
you on this issue by last Wednesday, February 22nd. We have not, however, received any
further information from you.
For purposes of moving this discussion along, I attach here a draft stipulation for Samsung’s
consideration. As you will see, the current draft includes the accused products mentioned in
your February 14th letter. I have also left blank spaces to account for additional products that
you are able to add at this point.
We have been very patient on this issue, but the time has come to resolve it. Please review
this draft stipulation, and get back to us with any comments by the close of business on
February 28, 2012.

pa-1514322

Rachel Kassabian
February 26, 2012
Page Two
Sincerely,
/s/ Marc J. Pernick

Marc J. Pernick

cc:

Calvin Walden
Peter Kolovos

pa-1514322

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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]
Attorneys for Plaintiff and
Counterclaim-Defendant APPLE INC.

QUINN EMANUEL URQUHART &
SULLIVAN, LLP
Charles K. Verhoeven (Cal. Bar No.
170151)
50 California Street, 22nd Floor
San Francisco, California 94111
Telephone: [phone]
Facsimile: [phone]
Kevin P.B. Johnson (Cal. Bar No. 177129)
Victoria F. Maroulis (Cal. Bar No. 202603)
555 Twin Dolphin Drive 5th Floor
Redwood Shores, California 94065
Telephone: [phone]
Facsimile: [phone]
Michael T. Zeller (Cal. Bar No. 196417)
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

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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.

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JOINT STIPULATION AND
[PROPOSED] ORDER
REGARDING SOURCE CODE
FOR THE ACCUSED DEVICES

SAMSUNG ELECTRONICS CO., LTD., a
Korean corporation; SAMSUNG ELECTRONICS
AMERICA, INC., a New York corporation; and
SAMSUNG TELECOMMUNICATIONS
AMERICA, LLC, a Delaware limited liability
company,

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Case No. 11-cv-01846-LHK

Defendants.

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JOINT STIPULATION AND [PROPOSED] ORDER RE: SOURCE CODE FOR ACCUSED DEVICES
CASE NO. 11-CV-01846-LHK
pa-1514264

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WHEREAS, Apple Inc. (“Apple”) commenced the above-captioned action against

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Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., and Samsung

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Telecommunications America, LLC (collectively “Samsung,” and together with Apple, “the

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Parties” and individually each a “Party”) on April 15, 2011;

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WHEREAS, through Requests for Production propounded on Samsung and other

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discovery mechanisms, Apple sought production of the source code for the accused products (see,

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e.g., Apple RFP Nos. 224, 228, and 232);

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WHEREAS, on December 8, 2011, Apple filed a motion to compel seeking an order
directing Samsung to produce its source code for the accused products, including its source code

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relating to certain specified accused functions (see Apple’s 12/8/11 [Proposed] Order Granting

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Apple’s Mot. Compel Production of Docs. & Things at 2-3);

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WHEREAS, on December 22, 2011, the Court issued an order requiring Samsung to

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produce “the source code and technical documents requested by Apple’s motion” by

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December 31, 2011 (12/22/11 Order at 2);

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WHEREAS, Samsung produced only one version of source code for each accused product
by December 31, 2011;
WHEREAS, Apple contends that Samsung should be precluded from arguing that any

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version of an accused product does not infringe any Apple patent-in-suit, unless the source code

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for that version of the product either (i) was produced by December 31, 2011, or (ii) differs in no

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material way from the source code for the version of the product that was produced by

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December 31, 2011;

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WHEREAS, although Samsung does not agree with Apple’s contention, Samsung

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represents that, for purposes of assessing infringement of all but one of the Apple patents-in-suit,

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the version of the following accused products for which Samsung did produce source code by

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December 31, 2011 is representative of all versions of that product:

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(a)
(b)
(c)
(d)
(e)

Captivate;
Continuum;
Epic 4G;
Exhibit 4G;
Fascinate;

JOINT STIPULATION AND [PROPOSED] ORDER RE: SOURCE CODE FOR ACCUSED DEVICES
CASE NO. 11-CV-01846-LHK
pa- 1514264

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(f) Galaxy Ace Showcase;
(g) Galaxy S 4G;
(h) Gravity Smart;
(i) Indulge;
(j) Intercept;
(k) Mesmerize;
(l) Nexus;
(m) Nexus S;
(n) Nexus S 4G;
(o) Replenish;
(p) Showcase Galaxy S;
(q) Sidekick;
(r) Transform;
(s) Vibrant;
(t) Galaxy Tab (AT&T, Sprint, TMobile and Verizon versions);
(u) ….
(v) …..
(w) …
(x) …...

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WHEREAS, Samsung’s representation does not apply to Apple’s allegation that

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Samsung’s accused products infringe U.S. Patent No. 7,469,381; and
WHEREAS, the Parties have determined that it is in their mutual interest to memorialize

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their partial resolution of this outstanding dispute regarding the consequences of Samsung’s

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failure to produce all of the source code covered by the Court’s December 22, 2011 Order by

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December 31, 2011.

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NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by the Parties as

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follows:

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1.

For purposes of assessing infringement of U.S. Patent Nos. 6,493,002, 7,853,891,

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7,864,163, 7,844,915, 7,812,828, 7,663,607, and 7,920,129 (whether direct or indirect, and

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whether literal or by equivalents), the version of source code that Samsung produced by

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December 31, 2011 for the following products is representative of the source code for all versions

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of that product:

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a.
b.
c.
d.
e.
f.
g.
h.
i.

Captivate;
Continuum;
Epic 4G;
Exhibit 4G;
Fascinate;
Galaxy Ace Showcase;
Galaxy S 4G;
Gravity Smart;
Indulge;

JOINT STIPULATION AND [PROPOSED] ORDER RE: SOURCE CODE FOR ACCUSED DEVICES
CASE NO. 11-CV-01846-LHK
pa- 1514264

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j.
k.
l.
m.
n.
o.
p.
q.
r.
s.
t.
u.
v.
w.
x.

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2.

Intercept;
Mesmerize;
Nexus;
Nexus S;
Nexus S 4G;
Replenish;
Showcase Galaxy S;
Sidekick;
Transform;
Vibrant; and
Galaxy Tab (AT&T, Sprint, TMobile and Verizon versions);
…….
…….
…….
…….

This stipulation is without prejudice to Apple’s right to seek any remedy or relief

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with regard to any disputes over Samsung’s production of source code in accordance with the

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December 22, 2011 Order that are not addressed in Section 1 of this Stipulation.

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Dated: February ___, 2012

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MORRISON & FOERSTER LLP

QUINN EMANUEL URQUHART &
SULLIVAN, LLP

By:_____________________________
HAROLD J. MCELHINNY
MICHAEL A. JACOBS
JENNIFER LEE TAYLOR
ALISON M. TUCHER
RICHARD S.J. HUNG
JASON R. BARTLETT

By:________________________________
CHARLES K. VERHOEVEN
KEVIN P.B. JOHNSON
VICTORIA F. MAROULIS
EDWARD DEFRANCO
MICHAEL T. ZELLER

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Attorneys for Plaintiff
APPLE INC.

Attorneys for SAMSUNG ELECTRONICS
CO. LTD, SAMSUNG ELECTRONICS
AMERICA, INC., AND SAMSUNG
TELECOMMUNICATIONS AMERICA,
LLC.

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JOINT STIPULATION AND [PROPOSED] ORDER RE: SOURCE CODE FOR ACCUSED DEVICES
CASE NO. 11-CV-01846-LHK
pa- 1514264

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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Dated: ___________________, 2012

By:
The Honorable Lucy H. Koh
United States District Court Judge

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JOINT STIPULATION AND [PROPOSED] ORDER RE: SOURCE CODE FOR ACCUSED DEVICES
CASE NO. 11-CV-01846-LHK
pa- 1514264

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