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)

EXHIBIT 2

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March 16, 2012

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By Email ([e-mail])
Todd M. Briggs
Quinn Emanuel
555 Twin Dolphin Dr., 5th Floor
Redwood Shores, California 94065
Re:

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

Dear Todd:
Thank you for getting back to us yesterday on the proposed stipulation regarding Samsung’s
violation of the Court’s December 22nd order concerning source code. Given that 18 days
had passed since we sent you our proposed stipulation––and that a month had passed since
Rachel and Charlie said that Samsung would, within a week, propose its own stipulation––
we were not sure we were going to hear back from you.
In any event, Apple’s motion for sanctions is of course not moot. Apple’s motion would not
be moot even if Samsung signed the draft stipulation that we proposed. This is true for
several reasons.
1. As a general matter, Apple’s proposed stipulation was never intended to resolve all of the
disputes between the parties resulting from Samsung’s failure to produce source code in
compliance with the Court’s December 22nd order. Apple’s stipulation was designed to
narrow the issues in dispute. But, given Samsung’s violations, a motion was still going to be
necessary.
2. Because Samsung has without question violated the December 22nd order, our motion
seeks a finding that Samsung committed the violation. (See Paragraph 1 of Apple’s
Proposed Order.) Samsung cannot moot this aspect of Apple’s motion unless it formally
agrees to this in a stipulation. We understand that Samsung does agree that it has violated
the order, and therefore suggest adding this to the stipulation under discussion. Without such
a provision, Apple’s motion could never be moot.
3. As reflected in Paragraph 2 of Apple’s Proposed Order, Apple needs an order or a formal
agreement from Samsung that Samsung and its experts will not at trial, on summary

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Todd M. Briggs
March 16, 2012
Page Two
judgment, or in any other context present, use, or rely on any source code that was not timely
produced under the December 22nd order. Samsung cannot moot this aspect of Apple’s
motion without providing its express agreement to this in a stipulation. You have not yet
done so.
4. As reflected in Paragraph 3 of Apple’s Proposed Order, Apple also seeks an order that, for
purposes of assessing infringement by any version of a Samsung accused product, the
product version for which Samsung timely produced source code shall be deemed
representative of all versions of that product. Far from agreeing to this relief, although it is
somewhat unclear, Paragraph 9 of your proposed stipulation seems to suggest the opposite.
Paragraph 9 seems to say that Samsung should be allowed to argue that it can rely on code it
produced after the December 31st deadline set by the Court––and even after the discovery
cut-off––to make non-infringement arguments. Samsung appears to seek the right to do so
even where the late-produced code differs substantively from the code it produced by
December 31st . This would be unfair and would allow Samsung to take advantage of its
violations of the Court’s order. Samsung’s proposal certainly does not moot Apple’s motion.
5. Aside from the issue of whether Samsung has mooted Apple’s motion, there are many
other problems with Samsung’s proposed stipulation. These are probably better addressed in
a phone call.
For starters, we note that Paragraphs 6-8 of your proposed stipulation ask Apple to enter into
stipulations regarding versions of source code produced after the December 31st deadline.
We do not know whether those portions of code are representative of the code for any
particular Samsung products, and we will not enter into any stipulations about that lateproduced code.
In addition, we do not know what Samsung means in its version of the stipulation when it
uses the word “released.” This could have several different meanings, and we do not know
which one Samsung intends here.
*

*

*

These are just some of the problems with Samsung’s version of the stipulation. For all of
these and other reasons, Samsung’s proposed stipulation is unacceptable, and does not
resolve the issues raised by Apple’s motion.
I would be happy to participate in a call with you next week on this. In the meantime, if you
would like, we can inform the Court that Samsung does not oppose at least portions of
Apple’s motion. At a minimum, we understand that Paragraph 1 of Apple’s Proposed
Order––which states, “[t]he Court finds that Samsung violated this Court’s

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Todd M. Briggs
March 16, 2012
Page Three
December 22, 2011 Order by failing to produce source code for the accused functionalities
for all versions of the accused products by December 31, 2011”––is not in dispute. Please let
us know how you would like to proceed.
Sincerely,
/s/ Marc J. Pernick
Marc J. Pernick

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