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

Filing 834

RESPONSE (re #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 bySamsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: #1 Exhibit Exhibit A - Proposed Stipulation, #2 Declaration Declaration of Todd Briggs, #3 Exhibit Exhibit 1, #4 Exhibit Exhibit 2, #5 Proposed Order)(Maroulis, Victoria) (Filed on 3/23/2012)

1 QUINN EMANUEL URQUHART & SULLIVAN, LLP
Charles K. Verhoeven (Bar No. 170151)
 [e-mail]
50 California Street, 22nd Floor
 San Francisco, California 94111
Telephone: [phone]
 Facsimile: [phone]
 Kevin P.B. Johnson (Bar No. 177129)
[e-mail]
 Victoria F. Maroulis (Bar No. 202603)
[e-mail]
th
 555 Twin Dolphin Drive, 5 Floor
Redwood Shores, California 94065-2139
 Telephone: [phone]
Facsimile: [phone]

Michael T. Zeller (Bar No. 196417)
 [e-mail]
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



UNITED STATES DISTRICT COURT



NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION


 APPLE INC., a California corporation,

CASE NO. 11-cv-01846-LHK



DECLARATION OF TODD BRIGGS IN
SUPPORT OF SAMSUNG’S OPPOSITION
TO APPLE’S RULE 37(B)(2) MOTION
BASED ON SAMSUNG'S ALLEGED
VIOLATION OF THE COURT'S
DECEMBER 22, 2011 ORDER
REGARDING SOURCE CODE



Plaintiff,
vs.

 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,

Defendant.


Date: April 24, 2012
Time: 10:00 a.m.
Place: Courtroom 5, 4th Floor
Judge: Hon. Paul S. Grewal



Case No. 11-cv-01846-LHK
BRIGGS DECLARATION IN SUPPORT OF SAMSUNG’S OPPOSITION TO MOTION FOR SANCTIONS

1

I, Todd Briggs, declare:

2

1.

I am a partner in the law firm of Quinn Emanuel Urquhart & Sullivan, LLP,

3 counsel for Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., and Samsung
4 Telecommunications America, LLC (collectively, “Samsung”). I submit this declaration in
5 support of Samsung’s Opposition To Apple’s Rule 37(B)(2) Motion Based On Samsung's Alleged
6 Violation Of The Court's December 22, 2011 Order Regarding Source Code. Except as otherwise
7 noted, I have personal knowledge of the facts set forth in this declaration and, if called upon as a
8 witness, I could and would testify to such facts under oath.
9

2.

Contrary to the statements in paragraph 2 of Marc Pernick’s declaration supporting

10 Apple’s motion, I am informed and believe that Samsung has offered to make source code
11 available on several occasions. On October 7, 2011, in its Patent Local Rule 3-4 disclosure,
12 Samsung represented that it would make available for inspection source code relating to Apple's
13 infringement.

On December 14, Samsung reiterated to Apple that this source code was available

14 for review. Then again, on December 31, 2011, in accordance with the Court’s December 22,
15 2011 Order, Samsung made additional source code available for inspection. Since its Rule 3-4
16 disclosures, Samsung has offered to make additional source code available on November 15, 17,
17 and 21 and December 2 and 6. Samsung also produced for inspection source code relating to
18 design-arounds on January 23 and March 10 and 12.
19

3.

By December 31, I am informed and believe that Samsung made source code

20 available for inspection to Apple. That source code, which included the full source code for each
21 of the products at issue and the source code for the accused functionalities, amounted to
22 approximately 829 gigabytes. Based on an estimate of 60 pages per megabyte (MB) and 1024
23 MBs in a gigabyte (GB), I am informed and believe that the 829 GB of code is roughly 50,933,760
24 pages of source code.
25

4.

Despite the purported urgency of Apple's request, Apple did not inspect the source

26 code when it was produced; instead, counsel for Apple said that they were not prepared to do so
27 and waited to review the code at a later date.
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Case No. 11-cv-01846-LHK
-2BRIGGS DECLARATION IN SUPPORT OF SAMSUNG’S OPPOSITION TO MOTION FOR SANCTIONS

1

5.

This set of source code included the release-version of the accused products—the

2 version that is most relevant to Apple’s claims, which allege infringement and damages by the
3 accused products as of the date of release.
4

6.

Shortly after the Court issued its January 27 Order, Samsung began meeting and

5 conferring with Apple regarding a stipulation identifying the source code that the parties could use
6 as representative of the accused products in order to streamline issues relating to the infringement
7 analysis. The meet and confer process continued throughout February and early March.
8

7.

On March 9, without warning to Samsung, Apple filed its Motion for Sanctions. At

9 that time, the parties were still actively negotiating the stipulation, and following Apple’s Motion,
10 counsel for Samsung contacted counsel for Apple regarding the stipulation. Attached hereto as
11 Exhibit 1 is a true and correct copy of an e-mail from Todd M. Briggs to Marc J. Pernick dated
12 March 15, 2012, transmitting the most recent proposed stipulation.
13

8.

Apple suggested the parties add a provision to the stipulation that Samsung admits

14 it violated the Court’s December 22, 2011 Order, and that Samsung agree to the preclusion of
15 Samsung’s source code. Attached hereto as Exhibit 2 is a true and correct copy of a letter sent
16 from Marc J. Pernick to Todd M. Briggs dated March 16, 2012, setting forth Apple's demands
17 with regard to the proposed stipulation.
18

9.

Since Samsung produced its design-around source code on March 10 and 12, I am

19 informed and believe that no one from Apple has printed any part of the code.
20

10.

Since the close of discovery on March 8, 2012, I am informed and believe that

21 Apple has produced 204,246 pages of documents, including over 1,000 pages on the day
22 Samsung’s expert reports were due.
23

I declare under penalty of perjury under the laws of the United States that the foregoing is

24 true and correct.
25
26
27

Executed in Redwood Shores, California, on March 23, 2012.
/s/ Todd Briggs
Todd Briggs

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Case No. 11-cv-01846-LHK
-3BRIGGS DECLARATION IN SUPPORT OF SAMSUNG’S OPPOSITION TO MOTION FOR SANCTIONS

1
2

General Order 45 Attestation
I, Victoria F. Maroulis, am the ECF user whose ID and password are being used to file this

3 Declaration. In compliance with General Order 45(X)(B), I hereby attest that Todd Briggs has
4 concurred in this filing.
5

/s/ Victoria Maroulis

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Case No. 11-cv-01846-LHK
-4BRIGGS DECLARATION IN SUPPORT OF SAMSUNG’S OPPOSITION TO MOTION FOR SANCTIONS