Apple Inc. v. Samsung Electronics Co. Ltd. et al
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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Melissa Chan [email@example.com]
Friday, March 23, 2012 11:01 AM
Pernick, Marc J.; Todd Briggs
Rachel Herrick Kassabian; AppleMoFo; 'WH Apple Samsung NDCal Service'; 'Kolovos, Peter'; 'Walden, S. Calvin';
Samsung v. Apple
Subject: RE: Apple v. Samsung: Correspondence re: Production of Source Code by Samsung
I write in response to your letter to Todd Briggs on March 16.
Your demand that Samsung “formally agree” to an alleged violation of the Court’s December 22nd Order
is simply a nonstarter. Samsung will not stipulate that it has allegedly violated the Courts Order –
because there has been no such violation. Nor will Samsung stipulate to any of Apple demands for the
preclusion of source code evidence, since Samsung timely produced the source code for the accused
products required under the Court’s December 22, 2011 Order.
Apple’s motion and your March 16 letter appear to misinterpret the Court’s December 22nd Order and
ignore the January 27th Order. As you know, the Court’s January 27, 2012 Order is the order that
addresses the production of documents sufficient to show version information, such as the additional
source code versions. That order clearly stated that in lieu of production, Samsung could negotiate a
stipulation that its source code production adequately represents the functionality of the entire set of
products. Although Samsung produced documents on February 3, 2012, reflecting the change history
for the accused products, in compliance with the Court’s January 27th Order, Samsung also has tried to
work with Apple to reach an agreement identifying a representative set of source code that could
streamline expert reports and result in efficiencies at trial for both parties. It now appears that Apple is
refusing to sign the stipulation unless Samsung agrees to include an admission that it violated a court
order, which is simply untrue. Thus, it is only Apple’s unreasonable demands and refusal to meet and
confer that have prevented the parties from reaching an agreement on that stipulation.
For the sake of clarity, Samsung has both (1) produced information regarding the changes made to
Samsung’s products or (2) tried to negotiate a stipulation regarding those versions. It is clear that Apple
has no intention of negotiating a resolution to Apple’s motion for sanctions or to the source code issue.
We therefore will prepare our response to Apple’s motion highlighting Apple’s refusal to meet and
confer in good faith as discussed above.
From: Pernick, Marc J. [mailto:MPernick@mofo.com]
Sent: Friday, March 16, 2012 5:55 PM
To: Todd Briggs
Cc: Rachel Herrick Kassabian; AppleMoFo; WH Apple Samsung NDCal Service; Kolovos, Peter; Walden, S.
Calvin; Samsung v. Apple
Subject: Apple v. Samsung: Correspondence re: Production of Source Code by Samsung
Attached please find correspondence regarding your proposed stipulation concerning Samsung's
production of source code in response to the Court's December 22, 2011 Order.
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