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)

Exhibit C

755 PAGE MILL ROAD
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March 26, 2012

MORRISON & FOERSTER LLP
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Writer’s Direct Contact
650.813.5718
[e-mail]

By Email ([e-mail])
Melissa N. Chan
Quinn Emanuel
55 Twin Dolphin Drive, Fifth Floor
Redwood Shores, CA 94065
Re:

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

Dear Melissa:
This responds to your email from Friday regarding Apple’s motion for sanctions for
Samsung’s failure to comply with the Court’s December 22nd order.
I first address your comments concerning the parties’ meet-and-confer discussions about
Samsung’s refusal to produce all of the source code that the Court ordered Samsung to
produce by December 31st. The record here speaks for itself. Even though Apple has no
obligation to meet and confer in connection with its request for sanctions, Apple has
diligently tried to minimize the issues that the Court needs to confront in deciding this
motion. It is Samsung, not Apple, that has stymied these discussions.
After discussing this matter at length with your colleagues in correspondence and at the
February 14-15 lead counsel meeting, I sent you a proposed stipulation on
February 26, 2012. Despite my affirmative effort to follow up with Samsung after
February 26th, Samsung remained silent for 18 days. Todd Briggs finally responded to me on
March 15th with a revised stipulation and a demand for immediate comments. Specifically,
Mr. Briggs threatened on March 16th that, if Apple did not respond with comments to
Samsung’s proposal by the next day, Samsung would “notify the Court” that Apple’s motion
for sanctions was moot.
I responded to Mr. Briggs on March 16th––one day after Samsung had provided its revised
stipulation––and offered Samsung our extensive and considered reactions to its proposal. I
also offered to speak with Mr. Briggs or any of your colleagues on the phone last week.
Once again, however, Samsung fell silent. After an entire week passed, you finally
responded on Friday, and have accused us of not meeting-and-conferring with Samsung.
Samsung has it exactly backwards.

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Melissa N. Chan
March 26, 2012
Page Two
In addition, I never “demanded” that Samsung “formally agree” that it violated Judge
Grewal’s December 31st order. To the contrary, Samsung had inquired about whether
Apple’s motion was somehow mooted by Samsung’s proposed stipulation. I responded by
noting that, as a threshold matter, Apple’s motion would not be moot unless Samsung
stipulated to a finding regarding its violations. This was not a demand on my part. It was
just an attempt to explore whether there was indeed any realistic way the parties could reach
an agreement that obviated the need for the Court to hear and decide Apple’s motion. Given
that Samsung had already admitted to facts that confirm its violations, we thought there was
a possibility that Samsung would agree to this provision in a formal stipulation. That would
have been a first step towards reaching a resolution of Apple’s motion, but this is apparently
not something Samsung is willing to do.
Your email also evinces a deeply flawed understanding of Judge Grewal’s orders. Judge
Grewal's December 22nd order directed Samsung to––by December 31st––produce all the
source code for the accused functionalities in the accused products. The order was not
limited to source code for just one version of the accused products. By its own admission,
Samsung did not comply with that command by December 31st, and it has not even complied
with it as of today.
The Court’s January 27th order was about something else. In the January 27th order, Judge
Grewal directed Samsung to produce a different set of technical documents––not source
code––by February 3rd. Indeed, both parties’ briefing on the January motion acknowledged
that the materials sought by Apple were in addition to the source code that the Court had
already ordered Samsung to produce by December 31st. (See Samsung 1/17/12 Opp. at 16-17
(referring to Apple’s “prior motion to compel” and the “first court-ordered deadline,
December 31, 2011, [for] Samsung [to] ma[ke] good and produce[ ] for inspection its source
code”); Apple 1/11/12 Motion at 6-7 (explaining that motion was directed to “14 remaining
categories of technical documents” that were not covered by December 22nd order).)
In the January 27th order, the Court directed Samsung to produce the 14 types of non-source
code technical documents Apple sought in the January motion, and also indicated that, in lieu
of a full production of those non-source code documents, Samsung could attempt to
“negotiate a stipulation that its production adequately represents the functionality of the
entire set of accused products.” (Order at 12.) But Samsung has mixed up the Court’s
orders. This instruction from the Court in January did not apply to the unambiguous
previous order that Samsung produce all of its accused source code by December 31st. It is
therefore irrelevant here. Apple’s pending motion for sanctions is about Samsung’s failure to
produce source code under the December 22nd order, not Samsung’s production of other nonsource code technical documents under the January 27th order.
Samsung did not come close to complying with the December 22nd order, and Apple has for
almost two months been trying to work out a way for the parties to properly address
pa-1519681

Melissa N. Chan
March 26, 2012
Page Three
Samsung’s violations without prejudicing Apple. Our motion and our proposed stipulation
both offer ways for the parties to accomplish this, at least to the extent that an agreement can
be reached. Samsung’s proposed stipulation does not.
We remain willing to discuss with you which versions of the accused products are––for
purposes of assessing infringement––in substance the same as the one version of each
accused product for which Samsung did timely produce its code. That is something our
original stipulation addresses, and we would be happy to keep discussing it. I offered to do
that over a week ago, and the offer remains on the table. Please call me if you would like to
discuss this further.
Sincerely,
/s/ Marc Pernick
Marc Pernick

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