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

Filing 822

Administrative Motion to File Under Seal filed by Apple Inc.. (Attachments: #1 Proposed Order, #2 [Redacted Public Version] Apple's Reply Brief, #3 [Redacted Public Version] Olson Reply Declaration, #4 Exhibit C to [Redacted Public Version] Olson Reply Declaration, #5 Exhibit E to [Redacted Public Version] Olson Reply Declaration, #6 Exhibit G to [Redacted Public Version] Olson Reply Declaration, *** DOCUMENT LOCKED [822-7] AT FILER'S REQUEST. *** #7 Exhibit I to [Redacted Public Version] Olson Reply Declaration, #8 [Redacted Public Version] Roberts Reply Declaration, #9 [Redacted Public Version] Kim Reply Declaration, #10 Exhibit 1 to [Redacted Public Version] Kim Reply Declaration, #11 Exhibit 2 to [Redacted Public Version] Kim Reply Declaration, #12 Exhibit 3 to [Redacted Public Version] Kim Reply Declaration, #13 Exhibit 4 to [Redacted Public Version] Kim Reply Declaration, #14 Exhibit 5 to [Redacted Public Version] Kim Reply Declaration, #15 Exhibit 6 to [Redacted Public Version] Kim Reply Declaration, #16 Exhibit 7 to [Redacted Public Version] Kim Reply Declaration, #17 Exhibit 8 Part 1 to [Redacted Public Version] Kim Reply Declaration, #18 Exhibit 8 Part 2 to [Redacted Public Version] Kim Reply Declaration, #19 Exhibit 11 to [Redacted Public Version] Kim Reply Declaration, #20 Exhibit 12 to [Redacted Public Version] Kim Reply Declaration, #21 Certificate/Proof of Service)(Jacobs, Michael) (Filed on 3/20/2012) Modified on 3/21/2012 (wv, COURT STAFF). Modified on 3/21/2012 (wv, COURT STAFF).

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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: 415.268.7522

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 (CA SBN 244180)
[e-mail]
WILMER CUTLER PICKERING HALE
AND DORR LLP
950 Page Mill Road
Palo Alto, California 94304

Attorneys for Plaintiff and CounterclaimDefendant 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,
Plaintiff,

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v.
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,
Defendants.

Case No.

11-cv-01846-LHK

REPLY DECLARATION OF
GRANT L. KIM IN SUPPORT OF
APPLE’S RULE 37(B)(2)
MOTION RE SAMSUNG’S
VIOLATION OF JANUARY 27,
2012 DAMAGES DISCOVERY
ORDER
Date:
Time:
Place:
Judge:

April 3, 2012
10:00 a.m.
Courtroom 5, 4th Floor
Hon. Paul S. Grewal

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PUBLIC REDACTED VERSION
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REPLY DECL. OF GRANT KIM ISO APPLE’S RULE 37(B)(2) MOTION RE VIOLATION OF JAN 27 ORDER
CASE NO. 11-cv-01846-LHK (PSG)
sf-3122030

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I, Grant L. Kim, declare as follows:

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I am an attorney at the law firm of Morrison & Foerster LLP, counsel of record in

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this action for Plaintiff Apple Inc. I submit this Reply Declaration in Support of Apple’s

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Rule 37(b)(2) Motion Re Samsung’s Violation of January 27, 2012 Damages Discovery Order.

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Unless otherwise indicated, I have personal knowledge of the matters set forth below. If called as

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a witness I could and would testify competently as follows.

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2.

Attached as Exhibit 1 hereto is a true and correct copy of Apple’s Second Set of

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Requests for Production of Documents, dated August 3, 2011. As can be seen at pages 1-2,

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Apple defined “Products at Issue” as including

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and “any similar products, and any products that Apple accuses of
infringing its intellectual property in this litigation.”
3.

Apple used the same definition of “Products at Issue” in every set of discovery

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requests that it served on Samsung that used this phrase, including: (a) Apple’s Second Set of

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Interrogatories (August 3, 2011); (b) Apple’s Sixth Set of Requests for Production of Documents

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(October 26, 2011); (c) Apple’s Seventh Set of Requests for Production of Documents

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(November 11, 2011); (d) Apple’s Fifth Set of Interrogatories (November 14, 2011); (e) Apple’s

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Seventh Set of Interrogatories (January 14, 2012); (f) Apple’s Tenth Set of Interrogatories

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(January 23, 2012); (g) Apple’s Fourteenth Set of Interrogatories (February 5, 2012); (h) Apple’s

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Sixteenth Set of Interrogatories (February 7, 2012). Samsung never objected that it did not

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understand the meaning of

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4.

Attached as Exhibit 2 hereto is a true and correct copy of a printout of the

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“Explore the Galaxy S II” page of Samsung’s website, downloaded from

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http://www.samsung.com/us/article/explore-the-galaxy-s-ii . This page includes photos and

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descriptions of all “Galaxy S II” models sold by U.S. carriers, including the Sprint “Galaxy S II

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Epic 4G Touch”; the AT&T “Galaxy S II Skyrocket”; the T-Mobile “Galaxy S II”; the AT&T

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“Galaxy S II”; and the U.S. Cellular “Galaxy S II.” It also includes links to other Samsung

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webpages that include additional information about all of these Galaxy S II models.

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REPLY DECL. OF GRANT KIM ISO APPLE’S RULE 37(B)(2) MOTION RE VIOLATION OF JAN 27 ORDER
CASE NO. 11-cv-01846-LHK
sf-3122030

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5.

Attached as Exhibit 3 are true and correct copies of photos of the front and back of

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the Sprint Galaxy S II Epic 4G Touch, downloaded from Samsung’s website at

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http://www.samsung.com/us/mobile/cell-phones/SPH-D710ZKASPR-gallery. As shown by these

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photos, the back of the Sprint Galaxy S II, includes the “Galaxy S II” logo, with no reference to

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“Epic 4G Touch.”

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Attached as Exhibit 4 are true and correct copies of photos of the front and back of

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the AT&T Galaxy S II Skyrocket, downloaded from Samsung’s website at

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http://www.samsung.com/us/mobile/cell-phones/SGH-I727MSAATT-gallery. As shown by

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these photos, the back of the AT&T Galaxy S II, includes the “Galaxy S II” logo, with no

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reference to “Skyrocket.”
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Attached as Exhibits 5 and 6 are true and correct copies of photos of the front and

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back of the T-Mobile and AT&T Galaxy S II, downloaded from Samsung’s website at

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http://www.samsung.com/us/mobile/cell-phones/SGH-T989ZWBTMB-gallery and

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http://www.samsung.com/us/mobile/cell-phones/SGH-I777ZKAATT-gallery, respectively. As

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shown by these photos, the back of these two models includes the same “Galaxy S II” logo that

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appears on the Sprint Galaxy S II Epic 4G Touch and the AT&T Galaxy S II Skyrocket.

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Attached as Exhibit 7 hereto is a true and correct copy of a printout of the

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“Explore Galaxy Tabs” page of Samsung’s website, downloaded from

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http://www.samsung.com/us/guide-page/galaxy-s/#galaxytab. As can be seen, Samsung’s

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“Explore Galaxy Tabs” webpage includes photos and descriptions of both the “Galaxy Tab 10.1

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(Wi-Fi Only)” and the “Galaxy Tab 10.1 (Verizon 4G LTE).” It also includes links to other pages

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that contain more information about these products.

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Attached as Exhibit 8 hereto is a true and correct copy of a printout of a review of

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the Galaxy Tab 10.1 4G LTE, dated August 15, 2011, downloaded from

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http://www.anandtech.com/show/4605/samsung-galaxy-tab-101-4g-lte-review. The review states

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that the LTE version of the Galaxy Tab 10.1 is “[b]ased on the same design as the WiFi only

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Galaxy Tab 10.1,” and is “identical in dimensions.” (Id. at 2.) It includes a side-by-side

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comparison that shows that the technical specifications of the Galaxy Tab 10.1 (Wi-Fi only) and
REPLY DECL. OF GRANT KIM ISO APPLE’S RULE 37(B)(2) MOTION RE VIOLATION OF JAN 27 ORDER
CASE NO. 11-cv-01846-LHK
sf-3122030

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the Galaxy Tab 10.1 (4G LTE) are virtually identical, with the key difference between that the

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LTE version allows connection over a 3G or LTE cellular network. (Id. at 3-4.)

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to Samsung’s Interrogatory No. 5, served on September 12, 2011.

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Attached as Exhibit 9 hereto is a true and correct copy of Apple’s initial response

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Attached as Exhibit 10 hereto is a true and correct copy of Apple’s Second

Amended Response to Samsung’s Interrogatory No. 5, served on March 8, 2012.

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12.

Attached as Exhibit 11 hereto is a true and correct copy of an article dated

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August 31, 2011, about Samsung’s official announcement of the Galaxy S II models for AT&T,

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Sprint, and T-Mobile, downloaded from http://www.androidpolice.com/2011/08/30/galaxy-sii-

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variants-for-att-t-mobile-and-sprint-officially-announced-the-wait-is-almost-over/ According to
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the article, the specifications of the three Galaxy S II models are similar, but not identical. For

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example, the T-Mobile Galaxy S II has a 4.52 inch screen, while the AT&T Galaxy S II has a 4.3

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inch screen.

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13.

Attached as Exhibit 12 hereto is a true and correct copy of an article about the

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Galaxy S II from Wikipedia, downloaded from

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http://en.wikipedia.org/wiki/Samsung_Galaxy_S_II .

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14.

Attorneys working under my supervision have conducted database searches of

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documents produced by Samsung in this action. The results of these searches show that Samsung

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has produced thousands of documents that refer to one of the three models that Samsung contend

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are outside the scope of this case

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, and that do not refer to one of the models that Samsung concedes are
at issue
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Attached as Exhibit 13 hereto is a true and correct copy of a spreadsheet

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summarizing the results of a search for documents that refer to the

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and that do not refer to one of the models that Samsung concedes are at issue. This search

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identified a total of 864 documents produced by Samsung. These search results reflect documents

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that included one of the terms that Samsung uses to refer to the

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and
REPLY DECL. OF GRANT KIM ISO APPLE’S RULE 37(B)(2) MOTION RE VIOLATION OF JAN 27 ORDER
CASE NO. 11-cv-01846-LHK
sf-3122030

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that did not include one of the terms that Samsung uses to refer to the

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or the AT&T
Galaxy S II (specifically, “I777” or “Seine,” the AT&T model and project names).)
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Attached as Exhibit 14 hereto is a true and correct copy of a spreadsheet

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summarizing the results of a search for documents that refer to the

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that does not refer to one of the models that Samsung concedes are at issue. This search

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identified a total of 1,022 documents produced by Samsung. These search results reflect

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documents that included one of the terms that Samsung uses to refer to the

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, and

and that did
not include one of the terms that Samsung uses to refer to the

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Attached as Exhibit 15 hereto is a true and correct copy of a spreadsheet

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summarizing the results of a search for documents that refer to the

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does not refer to one of the models that Samsung concedes are at issue. This search identified a

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total of 1,047 documents produced by Samsung. These search results reflect documents that

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included one of the terms that Samsung uses to refer to the

and that

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and that did not include one of the terms that Samsung uses to refer to the

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Adding the totals in the three preceding paragraphs together, Samsung responded

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to Apple’s document requests in this litigation by producing a total of 2,933 documents in this

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litigation that refer to the three products that Samsung now contends are outside the scope of

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Apple’s claims, and that do not refer to related products that Samsung concedes are at issue. The

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next several paragraphs give examples of the documents that Samsung produced.

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Attached as Exhibit 16 hereto is a true and correct copy of a document that

Samsung produced as
REPLY DECL. OF GRANT KIM ISO APPLE’S RULE 37(B)(2) MOTION RE VIOLATION OF JAN 27 ORDER
CASE NO. 11-cv-01846-LHK
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Attached as Exhibit 17 hereto is a true and correct copy of a document that

Samsung produced as

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Attached as Exhibit 18 hereto is a true and correct copy of a document that

Samsung produced as

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I declare under penalty of perjury that the foregoing is true and correct. Executed this
20th day of March, 2012 at San Francisco, California.

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/s/ Grant L Kim
Grant L. Kim

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REPLY DECL. OF GRANT KIM ISO APPLE’S RULE 37(B)(2) MOTION RE VIOLATION OF JAN 27 ORDER
CASE NO. 11-cv-01846-LHK
sf-3122030

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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 Grant L. Kim has

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concurred in this filing.

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Dated: March 20, 2012

/s/ Michael A. Jacobs
Michael A. Jacobs

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REPLY DECL. OF GRANT KIM ISO APPLE’S RULE 37(B)(2) MOTION RE VIOLATION OF JAN 27 ORDER
CASE NO. 11-cv-01846-LHK
sf-3122030

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