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

Filing 845

Administrative Motion to File Under Seal Exhibit D to the Reply Declaration of Marc J. Pernick in Support of Apple's Rule 37(b)(2) Motion Based on Samsung's Violation of the Court's December 22, 2011 Order Regarding Source Code filed by Apple Inc.. (Attachments: #1 Proposed Order, #2 Pernick Reply Declaration, #3 Exhibit A, #4 Exhibit B, #5 Exhibit C)(Jacobs, Michael) (Filed on 3/30/2012)

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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]

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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]

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., a California corporation,
Plaintiff,

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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.,
Defendants.

Case No.

11-cv-01846-LHK (PSG)

REPLY DECLARATION OF
MARC J. PERNICK IN SUPPORT
OF APPLE’S RULE 37(b)(2)
MOTION BASED ON
SAMSUNG’S VIOLATION OF
THE COURT’S DECEMBER 22,
2011 ORDER REGARDING
SOURCE CODE
Date:
Time:
Place:
Judge:

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

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EXHIBIT D FILED UNDER SEAL

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REPLY PERNICK DECL. ISO APPLE’S RULE 37(B)(2) MOT. BASED ON VIOLATION OF DEC. 22 ORDER RE: SOURCE CODE
CASE NO. 11-CV-01846-LHK (PSG)
sf-3126877

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I, Marc J. Pernick, declare as follows:

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1.

I am a partner in the law firm of Morrison & Foerster LLP, counsel for Apple Inc.

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(“Apple”). I am licensed to practice law in the State of California. Unless otherwise indicated, I

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have personal knowledge of the matters stated herein or understand them to be true from

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members of my Morrison & Foerster colleagues. I make this Reply Declaration in support of

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Apple’s Rule 37(b)(2) Motion Based on Samsung’s Violation of the Court’s December 22, 2011

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Order Regarding Source Code.

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2.

On October 26, 2011, Apple served a Sixth Set of Requests for Production of

Documents on Samsung. A true and correct copy of that document is attached hereto as
Exhibit A.

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3.

As described in Paragraphs 4-13 of my previous Declaration (Dkt. No. 796), Apple

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made repeated attempts to negotiate a stipulation with Samsung regarding whether the limited

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source code that Samsung produced by December 31, 2011 was representative of the source code

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that Samsung did no produce by that time (or ever). Those efforts included a proposed stipulation

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that I sent to Samsung on February 26, 2012, to which I requested a response by February 28,

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2012. I followed up that communication on February 29, 2012, with another request that

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Samsung respond to Apple’s proposal. Samsung did not reply to those communications until

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March 15, 2012.

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4.

On March 16, 2012, I replied to Samsung’s March 15 communication with

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comments on its proposed stipulation, and with suggestions for how the parties might resolve the

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issues raised in Apple’s Motion. Samsung did not reply to my March 16 communication until

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Friday, March 23, 2012. A true and correct copy of Samsung’s March 23 response is attached

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hereto as Exhibit B.

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5.

I replied by letter to Samsung on Monday, March 26, 2012. A true and correct

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copy of that letter is attached hereto as Exhibit C. Samsung has not responded to my March 26

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letter.

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REPLY PERNICK DECL. ISO APPLE’S RULE 37(B)(2) MOT. BASED ON VIOLATION OF DEC. 22 ORDER RE: SOURCE CODE
Case No. 4:11-cv-01846-LHK
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sf-3126877

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6.

Attached hereto as Exhibit D are two spreadsheets produced by Samsung bearing

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the labels SAMNDCA00324067 and SAMNDCA00324068. These spreadsheets are referenced

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on page 4 of Samsung’s Opposition Brief (Dkt. No. 834).

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I declare under penalty of perjury that the foregoing is true and correct. Executed on
March 30, 2012, at Palo Alto, California.
/s/ Marc J. Pernick
Marc J. Pernick

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REPLY PERNICK DECL. ISO APPLE’S RULE 37(B)(2) MOT. BASED ON VIOLATION OF DEC. 22 ORDER RE: SOURCE CODE
Case No. 4:11-cv-01846-LHK
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sf-3126877

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ATTESTATION OF E-FILED SIGNATURE

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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 Marc J. Pernick has

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concurred in this filing.

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Dated: March 30, 2012

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/s/ Michael A. Jacobs
Michael A. Jacobs

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REPLY PERNICK DECL. ISO APPLE’S RULE 37(B)(2) MOT. BASED ON VIOLATION OF DEC. 22 ORDER RE: SOURCE CODE
CASE NO. 11-CV-01846-LHK (PSG)
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sf-3126877