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

Filing 799

Administrative Motion to File Under Seal filed by Apple Inc.(a California corporation). (Attachments: #1 Proposed Order, #2 [Redacted Public Version] Apple's Combined Reply, #3 Proposed Order, #4 [Redacted Public Version] Declaration of Mia Mazza in Support of Apple's Combined Reply, #5 Exhibit 1 to [Redacted Public Version] of Declaration of Mia Mazza, #6 Exhibit 2 to [Redacted Public Version] of Declaration of Mia Mazza, #7 Exhibit 3 to [Redacted Public Version] of Declaration of Mia Mazza, #8 Exhibit 4 to [Redacted Public Version] of Declaration of Mia Mazza, #9 Exhibit 33 to [Redacted Public Version] of Declaration of Mia Mazza)(Jacobs, Michael) (Filed on 3/12/2012)

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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,

Case No.

11-cv-01846-LHK (PSG)

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Plaintiff,
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v.
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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.,
Defendants.

DECLARATION OF MIA MAZZA
IN SUPPORT OF APPLE’S
COMBINED REPLY IN SUPPORT
OF ITS MOTION TO COMPEL
DEPOSITIONS OF SAMSUNG’S
PURPORTED “APEX”
WITNESSES AND OPPOSITION
TO SAMSUNG’S MOTION FOR A
PROTECTIVE ORDER
Date:
Time:
Place:
Judge:

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

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REDACTED PUBLIC VERSION
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MAZZA DECL. ISO APPLE’S COMBINED REPLY ISO MOT. TO COMPEL AND OPP. TO MOT. FOR PROT. ORD.
CASE NO. 11-CV-01846-LHK (PSG)
sf-3116763

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I, Mia Mazza, declare as follows:

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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 Combined Reply in

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Support of Its Motion to Compel Depositions of Samsung’s Purported “Apex” Witnesses and

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Opposition to Samsung’s Motion for a Protective Order.

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2.

Certain of the exhibits to this Declaration consist of Korean-language documents

produced by Samsung in this action. Apple has obtained certified translations of those documents
and submits those translations herewith along with each Korean original.
3.

A description of the meet-and-confer process leading to Apple’s filing its Motion

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to Compel Depositions of 14 of Samsung’s Purported “Apex” Witnesses (“Motion to Compel”),

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along with facts concerning Apple’s having produced its own comparable “high level” employees

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for deposition, is set forth in my declaration in support of Apple’s Motion to Compel, filed

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February 16, 2012.

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4.

On February 5, 2012, I sent an email to Rachel Kassabian, who is one of

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Samsung’s attorneys in this action, stating in part that Apple “will not at this time pursue the

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depositions of Woncheol Chae, Chang Hwan Hwang, . . . and Hankil Yoon.” Those three

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witnesses were among the 23 purported apex witnesses listed in Ms. Kassabian’s letter of

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February 3, 2012 (“February 23 Kassabian letter”) (Dkt. No. 752-16). Attached hereto as

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Exhibit 1 is a true and correct copy of that February 5 email.

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5.

On February 9, 2012, Apple sent Samsung a thirteen-page letter containing a

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witness-by-witness summary outlining why Samsung’s objections were meritless. (Dkt.

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No. 754-14.) Reflecting that Apple had dropped three of the 23 purported apex witnesses

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identified in the February 23 Kassabian letter, Apple’s letter discusses 20 witnesses.

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On February 12, 2012, I sent an email to Ms. Kassabian and Alex Binder, who also

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is one of Samsung’s attorneys in this action, stating in part that Apple “will not at this time pursue

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the deposition[] of Justin Lee.” Mr. Lee is another one of the 23 purported apex witnesses listed
MAZZA DECL. ISO APPLE’S COMBINED REPLY ISO MOT. TO COMPEL AND OPP. TO MOT. FOR PROT. ORD.
CASE NO. 4:11-cv-01846-LHK
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in the February 23 Kassabian letter. Attached hereto as Exhibit 2 is a true and correct copy of

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that February 12 email.

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On February 13, 2012, I sent another email to Ms. Kassabian and Mr. Binder,

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stating in part that Apple “will not at this time pursue the deposition[] of . . . Younseok Lee.”

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The email further stated: “Note that Younghee Lee is one of the witnesses to whom Samsung has

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objected as ‘apex.’ This is the fifth ‘apex’ witness Apple has taken off its deposition schedule

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since receiving Samsung’s February 3, 2012, letter.” Attached hereto as Exhibit 3 is a true and

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correct copy of that February 13 email.

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On February 14, 2012, I sent another email to Mr. Binder and Ms. Kassabian,

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stating in part that Apple “is willing to cut one additional witness [Samsung] has claimed to be

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‘apex’: YoungHoon Eom.” Attached hereto as Exhibit 4 is a true and correct copy of that

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February 14 email.

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9.

I have reviewed Ms. Kassabian’s Declaration in support of Samsung’s motion for

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protective order (Dkt. No. 752-15) and the Declaration of Joby Martin in support of Samsung’s

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opposition to Apple’s Motion to Compel. (Dkt. No. 773-4.) In Ms. Kassabian’s declaration, she

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asserts that, after Apple sent its February 9 letter to Samsung (described in Paragraph 7 of her

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Declaration), “Samsung subsequently narrowed its apex objections down from 23 to 17

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executives.” (Dkt. No. 752-15 ¶¶7-8.) In Mr. Martin’s declaration, he asserts that “Samsung has

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repeatedly narrowed its apex objections down from 23 to 17, to 14, to 10, to 9 executives,” and

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that “[d]uring that time, Apple refused to make even a single concession as to any of Samsung’s

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apex witnesses.” (Dkt. No. 773-4 ¶2.) Mr. Martin’s declaration further states that “on

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March 2, 2012, for the first time, Apple offered to drop its demand for the deposition of one of

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[Samsung’s] apex executives.” (Id., emphasis added.) I do not know of any factual basis for any

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of these assertions, which were made by Ms. Kassabian and Mr. Martin under penalty of perjury.

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To the contrary, as set forth above, it is Apple who unilaterally dropped Samsung’s purported

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“apex” witnesses from 23 to 20 (Woncheol Chae, Chang Hwan Hwang, and Hankil Yoon), to 19

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(Justin Lee), to 18 (Younseok Lee), and then from 15 to 14 (YoungHoon Eom) and (most

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recently, on March 12, 2012) from 9 to 6 (Jaewan Chi, Heonbae Kim, and Dong Jin Koh). Apple
MAZZA DECL. ISO APPLE’S COMBINED REPLY ISO MOT. TO COMPEL AND OPP. TO MOT. FOR PROT. ORD.
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dropped five witnesses before Samsung dropped any of its objections to any depositions, and

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Apple dropped six witnesses before Apple filed its motion to compel. And Apple has dropped a

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total of 9 witnesses between February 5, 2012 and the date of this declaration.

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Attached hereto as Exhibit 5 is a true and correct copy of a document produced by

Samsung beginning with Bates number SAMNDCA10202827.

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Attached hereto as Exhibit 6 is a true and correct copy of excerpts from the

deposition transcript of Seogguen Kim, taken February 29, 2012.
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Attached hereto as Exhibit 7 is a true and correct copy of excerpts from the

deposition transcript of Don-Joo Lee, taken February 17, 2012.
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Attached hereto as Exhibit 8 is a true and correct copy of a document produced by

Samsung beginning with Bates number SAMNDCA10249770.

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A certified translation is included.
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Attached hereto as Exhibit 9 is a true and correct copy of an email chain from

August 2008 produced by Samsung beginning with Bates number SAMNDCA10885538.

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A certified
translation is included.
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Attached hereto as Exhibit 10 is a true and correct copy of an email from

January 2010 produced by Samsung beginning with Bates number SAMNDCA10907800.

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A
certified translation is included.
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Attached hereto as Exhibit 11 is a true and correct copy of a document produced

by Samsung beginning with Bates number SAMNDCA10422392.

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A
certified translation is included.

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MAZZA DECL. ISO APPLE’S COMBINED REPLY ISO MOT. TO COMPEL AND OPP. TO MOT. FOR PROT. ORD.
CASE NO. 4:11-cv-01846-LHK
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Attached hereto as Exhibit 12 is a true and correct copy of a document produced

by Samsung beginning with Bates number SAMNDCA00196646.

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A certified translation is included.
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Attached hereto as Exhibit 13 is a true and correct copy of an email chain from

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October, 2010 produced by Samsung beginning with Bates number SAMNDCA10774544.

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certified translation is included.
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Attached hereto as Exhibit 14 is a true and correct copy of a document produced

by Samsung beginning with Bates number SAMNDCA10775880.

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A certified translation is included.
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Attached hereto as Exhibit 15 is a true and correct copy of an email from

May 2010 produced by Samsung beginning with Bates number SAMNDCA10911066.

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A
certified translation is included.
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Attached hereto as Exhibit 16 is a true and correct copy of an email from

August 2010 produced by Samsung beginning with Bates number SAMNDCA10771078.

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A certified translation is
included.
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Attached hereto as Exhibit 17 is a true and correct copy of an email chain from

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May and June 2010 produced by Samsung beginning with Bates number SAMNDCA10764503.

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A certified translation is

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included.
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Attached hereto as Exhibit 18 is a true and correct copy of excerpts from the

deposition transcript of Jinsoo Kim, taken February 3, 2012.

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24.

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dated Nov. 2010 - Jan. 2011, bearing Bates numbers SAMNDCA00533129-159.

Attached hereto as Exhibit 19 is a true and correct copy of a

MAZZA DECL. ISO APPLE’S COMBINED REPLY ISO MOT. TO COMPEL AND OPP. TO MOT. FOR PROT. ORD.
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25.

Attached hereto as Exhibit 20 is a true and correct copy of an email dated July 24,

2011 from Yong Sung Park bearing Bates numbers SAMNDCA11115223-229.

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Attached hereto as Exhibit 21 is a true and correct copy of an email chain dated

August 10, 2010 bearing Bates numbers SAMNDCA10185356-364.

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Attached hereto as Exhibit 22 is a true and correct copy of an email bearing Bates

numbers SAMNDCA10172484-488 authored by Don Jin Koh and dated May 6, 2010.

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Attached hereto as Exhibit 23 is a true and correct copy of an email chain

produced by Samsung bearing Bates numbers SAMNDCA10167858-867.

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Attached hereto as Exhibit 24 is a true and correct copy of an email bearing Bates

numbers SAMNDCA10181789-794 authored by Don Jin Koh and dated July 2, 2010.

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Attached hereto as Exhibit 25 is a true and correct copy of an email bearing Bates

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numbers SAMNDCA10247568-570 authored by Dong Hoon Chang and dated September 24,

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2010.

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Attached hereto as Exhibit 26 is a true and correct copy of an email bearing Bates

numbers SAMNDCA11023144-164 authored by Don Jin Koh and dated September 23, 2011.

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MAZZA DECL. ISO APPLE’S COMBINED REPLY ISO MOT. TO COMPEL AND OPP. TO MOT. FOR PROT. ORD.
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Attached hereto as Exhibit 27 is a true and correct copy and a certified translation

of a document beginning with Bates number SAMNDCA10320161. The document is

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Attached hereto as Exhibit 28 is a true and correct copy and a certified translation

of an email chain beginning with Bates number SAMNDCA00532560.

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34.

I am informed by my team that Apple has not been able to depose a witness with

specific knowledge of SEC’s finances.
35.

Attached hereto as Exhibit 29 is a true and correct copy of an email from

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Dale Sohn to members of his team, dated February 15, 2011, bearing Bates Number S-ITC-

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500000321-322.

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MAZZA DECL. ISO APPLE’S COMBINED REPLY ISO MOT. TO COMPEL AND OPP. TO MOT. FOR PROT. ORD.
CASE NO. 4:11-cv-01846-LHK
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36.

Attached hereto as Exhibit 30 is a true and correct copy of an email chain, dated

from June 23 – 24, 2011, bearing Bates numbers S-ITC-500043605-611.

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Attached hereto as Exhibit 31 is a true and correct copy of an email dated

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March 2, 2010, bearing Bates numbers SAMNDCA10247549-552. The email relates remarks

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made by

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A draft version of this email was inadvertently filed on

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February 16, 2012 as Exhibit 8 to the Declaration of Mia Mazza in Support of Apple’s Motion to

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Compel Depositions of 14 of Samsung’s Purported “Apex” Witnesses (“Mazza Declaration”).

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The correct translation of Exhibt 8 to the Mazza Declaration was lodged with the Court on

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March 7, 2012. (See Dkt. No. 786.)

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38.

Attached as Exhibit 32 is a true and correct copy of excerpts from the transcript of

the deposition of Heon-Seok Lee taken February 29, 2012.
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On February 27, 2012, my colleague Marc Pernick sent a letter to Samsung

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regarding the then-upcoming deposition of Heon-Seok Lee. In his letter, Mr. Pernick reminded

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Samsung of the topics about which Mr. Lee was designated to testify and requested that he be

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prepared to answer questions on those topics. Attached as Exhibit 33 is a true and correct copy

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of that letter.

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MAZZA DECL. ISO APPLE’S COMBINED REPLY ISO MOT. TO COMPEL AND OPP. TO MOT. FOR PROT. ORD.
CASE NO. 4:11-cv-01846-LHK
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40.

On March 2, 2012, my colleague Marc Pernick sent a letter to Samsung detailing

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Apple’s concerns about the Heon-Seok Lee deposition, including the apparent lack of preparation

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on the designated issues. Attached as Exhibit 34 is a true and correct copy of that letter.

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41.

Attached as Exhibit 35 is a true and correct copy of excerpts from the transcript of

the deposition of Seong Hee Hwang taken March 7, 2012.
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On March 7, 2012, my colleague Marc Pernick sent a letter to Samsung expressing

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Apple’s objections to the lack of knowledge and preparation evidenced in the deposition of

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Seong Hee Hwang. Attached as Exhibit 36 is a true and correct copy of that letter.

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43.

Attached hereto as Exhibit 37 is a true and correct copy of Apple’s Sixth

Rule 30(b)(6) notices.
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Attached as Exhibit 38 is a true and correct copy of excerpts from the deposition

transcript of Kiwon Lee, taken March 8, 2012.
45.

Attached as Exhibit 39 is a true and correct copy of excerpts from the deposition

transcript of Sungsik Lee, taken March 1, 2012.
46.

Between February 16, 2012, and March 5, 2012, inclusive, 17 individuals were

designated to testify regarding Rule 30(b)(6) topics on behalf of Samsung.
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On March 12, 2012, Apple notified Samsung that it has determined that it will not

at this time pursue the depositions of Jaewan Chi, Heonbae Kim, and Dong Jin Koh.
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Attached hereto as Exhibit 40 is a true and correct copy of excerpts from the

deposition transcript of Dong Hoon Chang, taken March 7, 2012.
I declare under penalty of perjury that the foregoing is true and correct. Executed on
March 12, 2012 at San Francisco, California.
/s/ Mia Mazza
Mia Mazza

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MAZZA DECL. ISO APPLE’S COMBINED REPLY ISO MOT. TO COMPEL AND OPP. TO MOT. FOR PROT. ORD.
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ATTESTATION OF E-FILED SIGNATURE
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 Mia Mazza has

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concurred in this filing.

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Dated: March 12, 2012

/s/ Michael A. Jacobs
Michael A. Jacobs

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MAZZA DECL. ISO APPLE’S COMBINED REPLY ISO MOT. TO COMPEL AND OPP. TO MOT. FOR PROT. ORD.
CASE NO. 11-CV-01846-LHK (PSG)
sf-3116763

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