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

Filing 825

OPPOSITION to ( #782 Administrative Motion to File Under Seal re Samsung's Motion Compel Production Materials From Related Proceedings and to Enforce 12/22/11 Court Order ) filed byApple Inc.. (Attachments: #1 Nathan Sabri Declaration, #2 Exhibit 1, #3 Exhibit 2, #4 Exhibit 3, #5 Exhibit 4, #6 Exhibit 5, #7 Exhibit 6, #8 Exhibit 7, #9 Exhibit 8, #10 Proposed Order)(Jacobs, Michael) (Filed on 3/21/2012) Modified text on 3/22/2012 (dhm, 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: [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.,

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Case No.
Plaintiff,

v.
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,

11-cv-01846-LHK

DECLARATION OF NATHAN
SABRI IN SUPPORT OF APPLE’S
OPPOSITION TO SAMSUNG’S
MOTION TO COMPEL
PRODUCTION OF MATERIALS
FROM RELATED PROCEEDINGS
AND TO ENFORCE
DECEMBER 22, 2011 COURT
ORDER

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Defendants.
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SABRI DECL. ISO OPP. TO SAMSUNG’S MTC PRODUCTION OF MATERIALS FROM RELATED PROCEEDINGS

CASE NO. 11-CV-01846 LHK (PSG)
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I, NATHAN SABRI, declare as follows:

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1.

I am an attorney with the law firm of Morrison & Foerster LLP, counsel for Apple

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Inc. (“Apple”). I am licensed to practice law in the State of California. I have personal

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knowledge of the matters stated herein or understand them to be true from members of my

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litigation team. I make this declaration in support of Apple’s Opposition to Samsung’s Motion to

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Compel Production of Materials from Related Proceedings and to Enforce December 22, 2011

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Court Order (“Samsung’s Motion”).

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2.

On November 3, 2011, Samsung sent a letter to Apple asserting that Samsung was

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entitled to prior testimony by witnesses employed by Apple in order to assess the credibility of

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the witnesses in this action. Samsung supported this proposition by citing a case that addressed

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production of prior deposition transcript from a case with a “technological nexus” to the case at

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issue. A true and correct copy of this November 3 letter is attached hereto as Exhibit 1. Minor

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irrelevant information regarding licenses has been redacted to avoid an unnecessary motion to file

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under seal.

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3.

On November 29, 2011, Apple sent a letter to Samsung proposing a definition for

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“technological nexus” with specific examples for clarity. A true and correct copy of this

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November 29 letter is attached hereto as Exhibit 2.

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4.

On December 6, 2011 Apple sent a letter to Samsung summarizing issues

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discussed at a November 30 meet-and-confer session. A true and correct copy of this December 6

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letter is attached hereto as Exhibit 3.

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5.

On February 13, 2012, Samsung provided Apple with a list of proceedings that it

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asserted had a “technological nexus” with the present lawsuit. Attached hereto as Exhibit 4 is a

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true and correct copy of the February 13 letter containing this list.

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6.

On February 29, 2012, Apple responded expressing appreciation that Samsung

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provided a list of cases but noting that Samsung had not actually made an attempt to limit its

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cases to those with a technological nexus. For example, Samsung’s list included a case involving

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one patent covering a vehicle audio system and another case involving image decoding,

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SABRI DECL. ISO OPP. TO SAMSUNG’S MTC PRODUCTION OF MATERIALS FROM RELATED PROCEEDINGS

CASE NO. 11-CV-01846 LHK (PSG)
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processing, and compression patents. Attached hereto as Exhibit 5 is a true and correct copy of

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this response letter.

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7.

On March 3, 2012, Samsung provided a revised list of actions that it asserted had a

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technological nexus with the present lawsuit. Attached hereto as Exhibit 6 is a true and correct

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copy of the March 3 letter containing this list. Samsung’s list included eight cases involving

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Apple and third parties and the Apple v. Samsung dispute currently pending before the ITC.

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8.

It is my understanding that Apple does not store deposition transcripts by matter.

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It stores deposition transcripts by employee. Accordingly, Apple cannot review a particular

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matter to determine all transcripts associated with that matter; it must proceed employee-by-

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employee and determine what transcripts, if any, it has in its possession for each.
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Apple searched for prior deposition transcripts that had not already been produced

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for Apple employees who are witnesses in the present matter, with the exception of individuals

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who testified in the present case that they have never been deposed before, from Samsung’s list of

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eight cases between Apple and third parties.

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10.

With two exceptions, discussed in more detail below, the only transcripts Apple

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identified that had not already been produced were from depositions that occurred after January

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15. Specifically, Apple identified and produced transcripts from the following post-January 15

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depositions: 1) February 22, 2012 deposition of Brian Huppi in ITC Investigation No. 337-TA-

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797 (APLNDC-Y0000231263); 2) February 28, 2012 deposition of Freddy Anzures in Apple v.

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Motorola (N.D. Ill.) (APLNDC-Y0000231227); 3) February 27, 2012 deposition of Stan Ng in

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Apple v. Motorola (N.D. Ill.) (APLNDC-Y0000231356); and 4) January 24, 2012 deposition of

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Steve Hotelling in ITC Investigation No. 337-TA-797 (APL-ITC796-X0000003155).

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11.

Apple had inadvertently not previously identified or produced a transcript from the

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November 10, 2010 deposition of Eric Jue in ITC Investigation No. 337-TA-714. Apple

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promptly produced this transcript after receiving Samsung’s final list of “related proceedings”

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sent on March 3. (APLNDC-Y0000231187.)

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SABRI DECL. ISO OPP. TO SAMSUNG’S MTC PRODUCTION OF MATERIALS FROM RELATED PROCEEDINGS

CASE NO. 11-CV-01846 LHK (PSG)
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12.

Apple has not produced transcripts from prior depositions of Apple 30(b)(6)

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representative Mark Buckley. Mr. Buckley testifies for Apple solely on financial issues. His

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testimony therefore has no technological nexus to this lawsuit.

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13.

Attached hereto as Exhibit 7 is a February 10 letter from Jason Bartlett to Diane

Hutnyan.
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Attached hereto as Exhibit 8 is a February 19 letter from Diane Hutnyan to Jason

Bartlett.
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I understand from my team that the parties have agreed to allow documents

produced in the ITC action to be used in the Northern District of California action, and vice versa,

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and have used documents accordingly. The parties have not agreed to cross-use of deposition

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transcripts. This is critical to keep the limits on deposition time in the Northern District of

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California action meaningful. The Northern District of California action has a 250 hour limit on

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depositions. The ITC Investigation has none—there are no limits on the number of depositions,

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and no limits on the length of time depositions can run.

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I declare under penalty of perjury that the foregoing is true and correct. Executed this 21st
day of March, 2012 at San Francisco, California.

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/s/ Nathan Sabri
Nathan Sabri

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SABRI DECL. ISO OPP. TO SAMSUNG’S MTC PRODUCTION OF MATERIALS FROM RELATED PROCEEDINGS

CASE NO. 11-CV-01846 LHK (PSG)
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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 Nathan Sabri has

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concurred in this filing.

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Dated: March 21, 2012

/s/ Michael A. Jacobs
Michael A. Jacobs

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SABRI DECL. ISO OPP. TO SAMSUNG’S MTC PRODUCTION OF MATERIALS FROM RELATED PROCEEDINGS

CASE NO. 11-CV-01846 LHK (PSG)
sf-3122400