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

Filing 820

Declaration of Cyndi Wheeler in Support of #801 Administrative Motion to File Under Seal filed byApple Inc.. (Attachments: #1 Exhibit 1)(Related document(s) #801 ) (Hung, Richard) (Filed on 3/20/2012)

EXHIBIT 1

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February 23, 2012

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By Email ([e-mail])
Diane Hutnyan
Quinn Emanuel
865 South Figueroa St., 10th Floor
Los Angeles, CA 90017-2543
Re:

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

Dear Diane:
I write in response to your February 13, 2012 letter regarding Apple’s document production.
We address each of these items in the order listed in your letter. We will respond to the ten
new categories raised by your letter separately.
1.

All baseband processor source code (complete and uncorrupted)

On February 3, 2012, upon receiving consent from Intel, Apple produced the Intel baseband
processor source code in its possession that Apple identified as relevant. This is a substantial
volume of code—nearly 1,000,000 pages. Printed, this code would fill more than 400 boxes.
As we have informed you, Apple does not possess Intel HDL. To the extent that you cannot
locate any non-HDL code related to accused functionality, please specify as soon as possible
what you believe to be missing so that we may investigate.
You have asked Apple to provide the Bates range for the Intel source code. We would do so
if we could. However, Apple cannot provide a Bates range for this source code because
Apple produced the code for inspection and review on a secure source code review machine
pursuant to the terms of the protective order.
2.
All technical documents, including at least the software and hardware
architecture documents, technical specifications, and the register programming guides
for the baseband processor chips and any other technical documents that describe the
functional blocks of the baseband processors
On January 19, 2012, upon receiving consent from Intel, Apple produced over 21,000 pages
of technical documents related to the Intel baseband processor chips used in the accused

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Diane Hutnyan
February 23, 2012
Page Two
Apple products. These documents reflect information aboutREDACTED

Documents reflecting information about theREDACTED

d

d
nd within the Bates ranges

below:
APL7940014230717 APL7940014246571
APL7940014377134 APL7940014386271
APL7940014406344 APL7940014407990
APL7940014421735 APL7940014451933
APL7940014495384 APL7940014497436
APL7940014685634 APL7940014712365
APL7940015599797 APL7940015599831
APL7940015625337 APL7940015626646
APL7940015763768 APL7940015768597
The custodians of these documents areREDACTED
Samsung has not identified any relevant information missing from these materials. To the
extent that you cannot locate certain information you believe to be relevant, please specify as
soon as possible what you believe to be missing so that we may investigate.

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Diane Hutnyan
February 23, 2012
Page Three
3.

All source code relating to NeXTSTEP OS (complete and uncorrupted)

Apple confirms that it has produced all related code located after a diligent and reasonable
search.
As Samsung previously admitted, its sole reason for seeking code related to the NeXTSTEP
OS is the narrow question of whether NeXTSTEP OS had a status bar within the meaning of
the ’002 patent. Notwithstanding this limited relevance, Samsung demanded that Apple
produce all code relating to this 15-year-old operating system.
Substantial time and expense was incurred in recovering NeXTSTEP OS code from obsolete
archived media. Apple produced all source code it was able to locate. The source code is
not Bates labeled because Apple produced the code for inspection and review on a secure
source code review machine pursuant to the terms of the protective order.
Apple produced the NeXTSTEP OS code on January 13, 2012. Yet in the intervening five
weeks, Samsung appears to have spent almost no time reviewing the code produced, has
requested no code pages, and has yet to ask a single question about NeXTSTEP code in any
of the many depositions it has taken in this case.
Apple does not represent that this production is “complete and uncorrupted,” and the Court’s
January 27, 2012 Order (“Order”) does not impose such a requirement. The Court accepted
Apple’s representation that it has produced all such source code, and noted that Apple should
supplement its production if it should locate additional source code. (Order, at 17.) No
additional code has been located.
4.
All technical documents relating to NeXSTEP OS that Apple previously
produced in other litigation
Apple has produced more than 4,000 documents referencing NeXTSTEP in this case. They
are located throughout Apple’s production. Apple specifically re-produced technical
documents relating to NeXTSTEP on February 2, 2012. There are 263 relevant documents,
including without limitation user manuals, photographs, presentations, media and news
reports, graphs, and research results. The Bates range for this production is
APLNDC0001568861—APLNDC0001621189.
Samsung has not identified any missing materials, nor how the technical documents in other
litigation bear any nexus to the ’002 patent. If Samsung believes that Apple has not
produced relevant technical documents related to NeXTSTEP OS, please state the basis for
that belief.

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Diane Hutnyan
February 23, 2012
Page Four
5.
All source code related to prior art to the asserted patents, including prior art
alleged in earlier litigation or discovered by Samsung and requested of Apple
Apple has produced source code relating to NeXTSTEP, “SuperClock,” and Mac OS X 10.0.
NeXTStep code was produced on January 13, 2012 and SuperClock and Mac OS X 10.0
code on December 15, 2011. Apple supplemented its production of Mac OS X 10.0 code on
December 22 at Samsung’s request. Although not requested by Samsung, Apple also
produced source code relating to Mac OS 7.5, which Apple understood to be related to
SuperClock. That code was made available for Samsung’s inspection starting on
December 15. Apple also produced potentially relevant portions of Mac OS X 10.1 code on
December 15.
Accordingly, Apple has produced all source code in its possession that it understands to be
relevant to prior art to the asserted patents. If Samsung believes that there is additional
source code in Apple’s possession relevant to prior art to the asserted patents, please identify
the basis for that belief, the particular prior art it seeks, and the alleged relevance of that prior
art to the instant case.
6.
All responsive documents found after search for “Samsung” and any Samsung
product at issue in this case, or any alias therefore, in the files of Apple’s designers and
engineers who worked on the relevant products, employees responsible for marketing
those products, and employees responsible for developing the features at issue
Apple has produced tens of thousands of documents, comprising more than two million
pages, which contain the term “Samsung” or other keywords relating to the accused
Samsung products. The documents are too numerous and diffuse to identify individually by
Bates number. Apple has provided a text searchable load file, however, to enable Samsung
to locate these documents within Apple’s three document productions.
Apple searched for the term “Samsung” and the names of the Samsung accused products in a
database of more than fifteen million documents. Custodial data in this set is representative
of the individuals who were responsible for developing and marketing the Apple products at
issue. Represented are members of Apple’s Product Marketing, Advertising, Human
Interface Design, Industrial Design, iOS Programming, Mechanical Design, and Market
Research teams. More than 55 individual custodians were searched, including the following:
Altick, Kelly
Andre, Bartley
Anzures, Freddy
Blumenberg, Chris
Borchers, Bob
Boule, Andre

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Ive, Jonathan
Imahiro, James
Johnson, Tim
Jobs, Steve
Joswiak, Greg
Jue, Erik

Russell, Peter
Sammons, Melinda
Satzger, Douglas
Seid, Calvin
Shebanek, Mike
Sinclair, Steve

Diane Hutnyan
February 23, 2012
Page Five
Brodrick, Scott
Brown, John
Chaudhri, Imran
Chen, Wei
Coffman, Patrick Lee
Coster, Daniel
Christie, Greg
de Iullis, Daniele
Dinh, Richard
Elias, John
Forstall, Scott
Gosler, Jared
Haggerty, Myra
Herz, Scott
Hobson, Phil
Hotelling, Steve
Howarth, Richard
Huppi, Brian

Kamen, Zack
Kerr, Duncan
Krah, Chris
Lamiraux, Henri
Land, Brian
Lee, Mark
Lemay, Stephen
Lindbergh, Suzanne
Newton, Ian
Ng, Stan
Nishibori, Shin
Novick, Gregory
Ording, Bas
Pantfoerder, Achim
Platzer, Andrew
Prest, Chris
Rangel, Art
Robbin, Jeff

Rohrbach, Matt
Schiller, Phil
Strickon, Joshua
Stringer, Chris
Tan, Tang Yew
Tchao, Michael
Ternus, John
Twiggs, Sissie
Van Os, Marcel
Wang, Erik
Westerman, Wayne
Whang, Eugene
Whiteside, Tamara
Williamson, Richard
Zadesky, Steve
Zorkendorfer, Rico

For the custodians above, Apple applied all of the following search terms:
Samsung
Acclaim near/2 Samsung
Ace near/2 Samsung
Captivate near/2 Samsung
Continuum near/2 Samsung
“Droid Charge”
“Exhibit 4G”
“Epic 4G”
“F700”
“Fascinate near/2 Samsung

Gem near/2 Samsung
“Galaxy i9000”
“Galaxy Prevail”
“Galaxy S 4G”
“Galaxy S2”
“Galaxy Tab 8.9”
“Galaxy Tab 10.1”
Gravity near/2 Samsung
Indulge near/2 Samsung
“Infuse 4G”
Intercept near/2 Samsung

Mesmerize near/2 Samsung
“Nexus S”
“Nexus S 4G”
Replenish near/2 Samsung
“Showcase i500”
“Showcase Galaxy S”
Sidekick near/2 Samsung
Transform near/2 Samsung
Vibrant near/2 Samsung

In addition, Apple searched the seven custodians below for documents discussing Samsung
and the concepts in Samsung’s non-essential patents:

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Diane Hutnyan
February 23, 2012
Page Six
Hernan Eguiluz, Emilie Kim, Carlos Salinas, Ian Wilkinson: (Samsung) near/10
(photo* or picture* or image* or camera)
Justin Santamaria: (Samsung) near/10 (message or messages or text or texts or
texting or "app switch*")
George Dicker, Morgan Grainger: (Samsung) near/25 ("world clock" or "clock")
Apple also searched documents collected from 20 additional individuals using the terms
listed below each set of names:
Allen, Andy
Alsina, Thomas
Chapman, Greg
Lancaster, Chuck
Samsung

Dimpflmaier, Ron
Faheem, Faraz
Manning, Billy
Mishra, Puneet
Muresan, TB
Narang, Mohit
Sanguinetti, Louie
Schell, Stephan
Shi, Jason
Sorensen, Robert
Stewart, Cole

Lutton, Chip
Mavrakakis, Tom
Singer, David
Teksler, Boris
Workman, Helene Plotka
Samsung near/3 patent
“@samsung.com” near/5
patent
ETSI near/5 Samsung

(Samsung) near/5
(“patent*”)

3GPP near/5 Samsung

In total, collections sourced from over eighty Apple witnesses have been searched for the
term “Samsung.” After an extensive investigation involving the review of more than one
million documents, Apple was unable to identify any aliases for Samsung used at Apple. As
a result, no alias for Samsung was applied in Apple’s search. If Samsung has identified any
such alias in the documents Apple has produced, please let us know.
As Samsung is aware, Samsung is a supplier for Apple of certain products. Therefore, as
contemplated by the Court’s Order, Apple applied appropriate delimiters to some of the
search terms in order to minimize nonresponsive documents for review. Apple identified and
tested delimiters associated with Samsung’s role as Apple vendor. For instance, Samsung
supplies both Flash and RAM memory for the iPhone 4. Apple therefore used delimiters
such as SRAM, RAM, NAND, Flash, SDRAM, and DDR. A full list of the delimiters
applied will be disclosed in Apple’s updated transparency disclosures.

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Diane Hutnyan
February 23, 2012
Page Seven
Now that Samsung has had an opportunity to review the production, please let us know
immediately what additional searches, if any, Samsung would request that Apple run.
7.
All parts and small samples used in the design process for accused products,
such as those described in the Ive deposition
Apple confirms that it has produced for inspection all materials responsive to this category
located after a diligent and reasonable search.
Materials responsive to this request were first made available for inspection on January 13,
2012, at the Cypress hotel in Cupertino. The burden of that production was enormous. On
January 13, Apple produced all industrial design models it was able to find relating to the
iPhone, iPad, and iPod touch products, totalingREDACTED
7
and partial models are extremely sensitive Apple proprietary materials. Apple hired a team
of movers to transport the material to a hotel and hired a guard secure the room during the
review. Subsequently, Apple has made the entire set of models available for Samsung’s
inspection at a secure escrow site at a cost to Apple of several thousand dollars a week.
Apple’s January 13 production represents all of the parts and small samples which Apple has
been able to locate that were used in the design process.
Apple notes that of the REDACTED
noted
above, only one single part was shown to Jonathan Ive in his February 7 deposition. In the
February 15 deposition of Christopher Stringer, Samsung used no small parts or samples.
8.
All technical and marketing documents related to the dock icons used in Tiger,
other than emails
Apple confirms that it produced by February 7, 2012 technical and marketing documents
related to the dock icons used in Tiger located after a diligent and reasonable search.
Samsung originally asked for “all documents regarding Tiger,” which is a version of the Mac
OS X operating system. This demand placed an impossible burden on Apple that far
outweighed any need by Samsung for Tiger-related documents. Only after the parties were
well on their way to motion practice did Samsung concede that the one and only aspect of
Tiger that is relevant is its dock icons. Although Apple did not believe that Tiger is relevant
prior art, Apple produced documents and things sufficient to show the Tiger dock icons. In
particular, Apple produced a new, in-the-box, version of Tiger 10.4.3 for inspection.
Samsung, however, continued to demand “all” documents regarding Tiger.

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Diane Hutnyan
February 23, 2012
Page Eight
After Samsung brought a motion to compel production of such documents, the Court found
that Samsung’s request for “all” documents related to Tiger vastly “overreache[d],” and that
“Apple’s production of a ‘new, in-the-box’ version for Samsung’s inspection is sufficient to
show the limited features of Tiger alleged to be relevant to Samsung’s defenses.” (Order,
at 20.) In response to the Court’s Order for Apple to produce only “technical and marketing
documents related to [Tiger’s] dock icons, other than emails” (Id.), Apple made a
supplemental search and produced the documents on February 3, 2012. The production
spans more than 4,000 pages and bears the Bates APLNDC0001519052—
APLNDC0001523113. If there is a particular aspect of the Tiger icon set that Samsung
would like to investigate further after reviewing this production, please let us know.
9.
All survey reports and raw survey data for all customer surveys; all market
research reports; all print, television and other ad media plans; and online click counts
related to the iPhone, iPod touch, and iPad products
Apple confirms that it has produced all relevant documents in this category located after a
diligent and reasonable search.
Apple produced such documents on February 3, 2012. This production included all survey
reports and raw survey data; market research reports; all print, television, and other ad media
plans, and online click counts related to the iPhone, iPod touch, and iPad products.
Specifically, the production included the following:
More than 1,300 separate documents related to secondary market research from firms
such as Gartner and IDC. These were obtained by Apple pursuant to license agreements
and permission to produce had to be individually obtained.
Approximately 600 pages of documents related to J.D. Power surveys, which Apple had
to individually redact due to trade secrets claimed by J.D. Power.
Approximately 400 pages of documents related to surveys conducted by members of
Apple’s market research team.
More than 500,000 pages of other documents relating to this category, collected from
Apple’s market research archive and custodians in its market research team.
As previously discussed in correspondence, due to processing errors arising at Apple’s
discovery vendor, a subset of survey documents could not be produced in Bates numbered
form on February 3. Apple therefore made the original native data continuously available for
Samsung’s inspection until the Bates numbered versions could be produced on February 9.

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Diane Hutnyan
February 23, 2012
Page Nine
The Bates ranges for this production are APLNDC-X0000051955—APLNDC0000069414,
APLNDC-Y000023361—APLNDC0000048845, APLNDC0000036172—
APLNDC0000036570, APLNDC0001324150—APLNDC0001328140,
APLNDC0001331408—APLNDC0001335731, APLNDC0001337808—
APLNDC0001380559, APLNDC0001380865—APLNDC0001519051,
APLNDC0001523114—APLNDC0001772329, APLNDC0001792370—
APLNDC0001854951, APLNDC-X0000313770—APLNDC-X0000314368.
10.

All surveys or survey documents referencing Samsung’s products

Apple confirms that it has produced all surveys or survey documents referencing Samsung’s
products located after a diligent and reasonable search.
As noted above in response to category #9, Apple produced a vast number of surveys and
survey documents. It did not delimit the search by excluding Samsung products. Moreover,
as noted above in response to category #6, Apple has already collected from custodial
searches and produced documents referencing Samsung and Samsung products. The
documents referencing Samsung products are too numerous to identify individually but,
again, Apple has provided text-searchable load files for its productions.
11.

Business plans and strategies responsive to Samsung’s RFP No. 55

Apple has made an extensive production of business plan and strategic documents. Both
before and after the Court’s Order issued, Apple production included:
Executive Reviews
Apple New Product Process Documents
Creative Briefs
Product Briefs
Marketing Requirements Documents
Reviewer’s Guides
Launch Guides
Such documents are found throughout Apple’s production.
After the Court’s Order issued, Apple conducted a search of documents that had not yet been
reviewed for production specifically to search for business plans and strategies. Apple
searched for the terms “business plan” and “strateg*” in documents containing terms
associated with the products at issue. The searches were conducted in the files of individuals
most likely to contain responsive materials. Specifically, Apple searched the files of its
Product Marketing department, which is the department responsible for defining product
requirements, understanding the market, and developing and executing product strategies.
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Diane Hutnyan
February 23, 2012
Page Ten
Apple also searched the files of certain senior executives, including Steve Jobs. One subset
of the responsive documents Apple produced on February 3, 2012 bears the Bates range
APLNDC-Y0000000210—APLNDC-Y0000004714.
Apple’s collection and review of documents is ongoing. Documents relevant to Samsung’s
request will continue until depositions of Product Marketing custodians have concluded.
12.
All the documents described in the section “Financial Documents” in Jason
Bartlett’s letter of January 5, 2012, and providing quarterly revenue, sales, costs of
goods sold, operating expenses, gross margin, operating margin, R&D costs & capital
expenditures on a per-model basis
Apple confirms that it has produced all relevant documents in this category located after a
diligent and reasonable search. These documents were produced on February 5 and February
16, 2012. They bear the Bates range APLNDC0001772330—APLNDC0001772340 and
APLNDC-Y0000049780—APLNDC-Y0000051620, respectively. Moreover, these
documents were produced in the litigation relating to the ’794 patent, which is already in the
possession of Samsung’s counsel. Those Bates ranges are APL7940015781339APL7940015781405 and APL794-F0000000001- APL794-F0000008603.
13.

All sketchbooks that contain material relevant to the asserted patents

Apple confirms that it has produced all relevant sketchbooks located after a diligent and
reasonable search.
Apple’s production of sketchbooks has been extensively described in other correspondence.
To summarize, Apple produced more than 234 sketchbooks collected from Apple’s Industrial
Design department. Apple produced the relevant pages on September 30, 2011, bearing the
Bates range APLNDC0000036609—APLNDC0000038187.
Pursuant to Samsung’s demand, Apple agreed to re-review and reproduce all of these
sketchbooks related to every design patent at issue, not just the relevant pages, redacting
appropriate information relating to products not at issue in this case. Over 33,000 pages, 243
sketchbooks, from 13 different industrial design custodians, spanning more than 7 years were
produced. The production was completed on December 30, 2011, and bore the Bates ranges
APLNDC0000092889—APLNDC0000093143 and APLNDC0001285670—
APLNDC0001318828.
As the Court stated in its Order, “Apple must produce only those sketchbooks or portions
thereof that contain material relevant to the asserted patents.” (Order, at 24 (emphasis
added).) Apple has done so.

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Diane Hutnyan
February 23, 2012
Page Eleven
14.
All CAD files created by Apple’s industrial designers for the products at issue,
including the CAD for the 035 tablet mockup in PDF and native CAD
Apple confirms that it has produced all relevant CAD files located after a diligent and
reasonable search.
All CAD files created by Apple’s industrial designers relating to the projects that led to the
patents in suit (original iPhone andRED tablet) were produced for Samsung’s inspection at
ACT
Morrison & Foerster’s Palo Alto office in July 2011. Apple further made these files
ED
available for inspection at a third party escrow facility in September 2011.
By December 30, 2011, Apple produced all CAD files created by Apple’s industrial
designers during the development of all released iPhone, iPod touch, and iPad products.
Furthermore, Apple identified and produced for Samsung’s inspection additional CAD data
relating specifically to the 035 tablet mockup. All of these materials were placed in the
escrow facility for Samsung’s inspection. This was confirmed in Mia Mazza’s December 30,
2011 letter to Rachel Kassabian.
Apple further directs Samsung to the Court’s Order, which specifically states that the Court
accepted Apple’s representations that Apple produced all relevant CAD files, and denied
Samsung’s motion as to CAD files as moot. (Order, at 25.)
***
Apple has made every effort to comply with the Court’s discovery orders. Through this
letter, Apple has provided a detailed account of its compliance.

Sincerely,
/s/ Jason R. Bartlett
Jason R. Bartlett
cc:

Peter Kolovos
S. Calvin Walden

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