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

Filing 859

Declaration of Erica Tierney in Support of #847 Administrative Motion to File Under Seal Samsung's Opposition to Apple's Motion for Partial Summary Judgment filed byApple Inc.(a California corporation). (Attachments: #1 Exhibit 1, #2 Exhibit 2)(Related document(s) #847 ) (Selwyn, Mark) (Filed on 4/9/2012)

EXHIBIT 2

EXHIBIT S2
FILED UNDER SEAL

425 MARKET STREET
SAN FRANCISCO
CALIFORNIA 94105-2482
TELEPHONE: [phone]
FACSIMILE: 415 268 7522

MO RRI SO N & F O E RST E R L LP
N E W YO RK , SAN F RAN C I SCO ,
LO S AN G E LE S , P ALO ALTO ,
SAC RAME N T O , SAN D I E G O ,
D E N VE R , N O RT H E RN VI RG I N I A
WASH I N G T O N , D C

,

T O K YO , L O N D O N , BRU SSE L S ,
BE I JI N G , SH AN G H AI , H O N G K O N G

WWW.MOFO.COM

March 14, 2012

Writer’s Direct Contact
415.268.6615
[e-mail]

By Email ([e-mail])
Diane Hutnyan
Quinn Emanuel
865 South Figueroa St., 10th Floor
Los Angeles, CA 90017-2543
Re:

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

Dear Diane:
I write regarding certain Apple witnesses noticed for deposition in Apple’s offensive case,
who are the subjects of my January 24, February 23, February 27, and March 6, 2012,
1
letters.
In early February, Samsung advised Apple that it was objecting to the depositions of 23
Samsung employees on “apex” grounds, and Apple advised Samsung that it was objecting to
the depositions of 10 Apple employees on relevance and “apex” grounds. During a lead trial
counsel meeting on February 6, 2012, the parties agreed that each would provide the other
with written correspondence laying out, in as detailed a fashion as would be provided to the
Court in a motion to compel, the factual basis for its belief that each witness possesses
sufficiently relevant information to justify the burden of producing him or her for deposition.
Samsung took the position that without this level of detail, it would object to any motion to
compel on the grounds that Apple had not satisfied the lead trial counsel meet-and-confer
requirement.
Apple provided its promised letter to Samsung on February 9, 2012, after notifying Samsung
that it would not be seeking the depositions of 3 of Samsung’s 23 purportedly “apex”
witnesses. The letter set forth a detailed 9-page description of the factual basis for Apple’s
seeking the 20 remaining purported “apex” depositions, citing to documents produced by
other witnesses as well as deposition testimony. Apple’s letter notified Samsung that it

1

I understand that my colleagues at WilmerHale are separately discussing with you Apple’s objections to the
depositions of Deborah Goldsmith, Justin Santamaria, and Saku Hieta in Apple’s defensive case.

sf-3119216

Diane Hutnyan
March 14, 2012
Page Two
would be moving to compel the depositions of these 20 witnesses on shortened time and set
forth a proposed shortened briefing schedule.2
Samsung’s response, the very next day, was to serve Apple with notices for the depositions
of Tim Cook (Apple’s Chief Executive Officer and a member of Apple’s Board of
Directors), Bruce Sewell (Apple’s Senior Vice President and General Counsel), Noreen Krall
(Apple’s Senior Director of IP Law and Litigation), and Jeff Williams (Apple’s Senior Vice
President, Operations). This was an obvious effort to force out of Apple a series of “apex”
objections for Samsung to turn around and use in opposing Apple’s motion to compel.
Samsung did not place the depositions of these or any other Apple employees on its agenda
for the February 14-15 lead trial counsel meeting. Apple placed on its agenda, and the
parties discussed, the depositions of the original 10 employees who had been discussed at the
February 6, lead counsel meeting. Apple reiterated that it would not be scheduling the
depositions of these employees while it was still awaiting Samsung’s detailed letter that it
had promised on February 6. Samsung indicated that the letter would be forthcoming.
By February 17, Apple still had not received the letter Samsung had promised on February 6
and February 14-15, in which Samsung was supposed to lay out, in detail and with support,
the factual basis for its belief that the objected-to Apple witnesses possesses sufficiently
relevant information to justify the burden of producing yet another witness for deposition.
While awaiting the letter, Apple reviewed all then-outstanding deposition notices for Apple
employees, and finished scheduling the depositions of those employees who might
reasonably have relevant testimony to provide.
By February 23, 2012, Apple still had not received the promised letter from Samsung, and
the number of objectionable depositions had risen to 22. Apple sent a letter reiterating that
Samsung needed to provide its “factual basis in writing, in at least the level of detail
provided by Apple in its letters, citing to documents and deposition testimony, if any, for its
belief that any of those 22 witnesses possess information directly relevant to this case
sufficient to justify their depositions.”
Samsung immediately sent Apple a letter that did not provide the promised information but
threatened to move to compel the depositions of the 22 employees. Samsung then noticed an
additional 5 depositions of Apple employees. Apple advised that it would not be making
those 5 employees available for deposition.

2

Apple sent Samsung a further 3-page letter on February 12, 2012, identifying additional facts and arguments
that Apple would cite in its motion to compel. The parties finished meeting and conferring on the issue on
February 14-15, and then Apple filed its motion to compel on February 16, 2012.

sf-3119216

Diane Hutnyan
March 14, 2012
Page Three
On February 28, 2012, Samsung finally provided a 4-page letter discussing 20 of the 22
witnesses identified in Apple’s February 23 letter. The letter did not provide any supporting
detail for its asserted factual basis for any of those depositions. For nearly all of the
employees the descriptions were one or two sentences long, and made vague, unsupported
assertions that an employee has “relevant knowledge regarding the patents in suit and
Samsung’s alleged infringement,” or “relevant knowledge regarding the design and
development of the products at issue,” or merely “knowledge regarding the products at
issue.” The letter did not cite to any documents that had been produced by other witnesses,
and it did not cite to any deposition testimony. Rather, Samsung objected to providing that
information, asserting that it “would be a road map to every deposition [Samsung] takes. It
is not Samsung’s responsibility to help Apple’s counsel prepare for these depositions. And it
is not appropriate for Apple to condition these depositions on Samsung’s provision of such
information.”
In other words, Samsung refused to provide Apple with the type of information Samsung had
required Apple to provide before Samsung would consider Apple’s meet-and-confer
obligations to have been satisfied in advance of Apple’s motion to compel. Nevertheless,
Samsung’s February 28 letter stated that Samsung planned to “place this issue on the agenda
for the next lead counsel meet and confer and move to compel these depositions.”
On February 29, 2012, counsel for Apple sent a follow-up email to counsel for Samsung
requesting that Samsung provide, as Samsung itself had required of Apple, “a full description
of the arguments and facts Apple would make in its motion to compel.” Apple’s counsel
further observed, “Neither party viewed that letter as an inappropriate ‘road map to every
deposition;’ rather, it was provided (and, to our knowledge, received) in the spirit of the
transparency the Court intends the parties to provide.” The email stated, “[p]lease let us
know immediately whether Ms. Hutnyan’s letter was intended to provide a similarly full
description of the arguments and facts to be included in Samsung’s threatened motion to
compel. At this time, based on the sparsity of her letter, Apple can only assume that this was
not her intent.”
After this exchange of correspondence, the last week of fact discovery ensued. Apple made
three of the 22 employees available for deposition despite its previous objection—Chris
Hood, Steve Sinclair, and John Brown. Samsung declined to depose John Brown. Samsung
proceeded with multiple depositions of Apple employees each weekday, including numerous
30(b)(6) depositions.
Samsung has now deposed 83 Apple employees and prosecutors in this case, and at least 2
more depositions are on calendar for this week and beyond, for a total of 85 depositions.
Apple has objected to Samsung’s taking any additional depositions of Apple employees in
this case. Apple’s objection has been based primarily upon relevance and burden including,
for certain senior executives and attorneys, the heightened relevance required to be shown to
sf-3119216

Diane Hutnyan
March 14, 2012
Page Four
establish that a company should undertake the burden of producing “apex” or attorney
3
employees. At this point in discovery, the burden of producing an additional 22 witnesses
in this case outweighs any additional relevance their depositions may have. Apple requested
that Samsung provide an explanation, for each witness, of the basis for Samsung’s belief that
the depositions’ relevance outweighs burden, at the same level of detail that Samsung
required of Apple before filing its motion to compel. Samsung has refused to attempt to
make even that basic showing.
Because Apple has now lifted its objections to several of the original 22 objected-to
depositions and Samsung has let some of the others go, for the sake of clarity going into the
lead trial counsel meeting the remaining employees to whom Apple has objected are listed
below, and prior discussions are summarized.
Aaron von Minden, Amy Chuang, and Zack Kamen

Apple set forth its objections to these three employees’ depositions via letters to you dated
January 24, February 23, and February 27. In those letters, we repeatedly asked Samsung to
provide a detailed explanation of its basis for believing these three employees’ depositions
would lead to discoverable information. Samsung failed to do so. Messrs von Minden and
3

Out of the original 22 employees referenced in my January 24 letter, Samsung’s February 28 response did not
discuss two who were no longer with Apple. Apple then dropped its objections to three witnesses (Chris Hood,
John Brown, and Steve Sinclair), bringing the total to 17. Samsung served five additional deposition notices on
February 27—bringing the total number of objectionable depositions back up to 22. Samsung has not made any
attempt to provide a factual basis for the depositions of Kristi Schmidt, Michael Lee, David Zhang, or Jason
Huey at this time. (WilmerHale is discussing the fifth, Saku Hieta, with you separately.)

sf-3119216

Diane Hutnyan
March 14, 2012
Page Five
Kamen, and Ms. Chuang, also were among the 10 Apple employees discussed during the
parties’ February 6, and February 14-15, 2012, lead trial counsel meetings, where Samsung
explicitly promised to provide a detailed explanation of its basis for seeking these three
witnesses’ depositions. Samsung failed to do so. Apple has even produced the relevant,
responsive documents of all three witnesses. Samsung has failed to point to anything in
those documents indicating that their relevance in this case outweighs the burden to Apple of
putting up still more employees for deposition.
Fred Simon

Apple detailed its
objections to Mr. Simon’s deposition via letters to you dated January 24, February 23, and
February 27. In those letters, we repeatedly asked Samsung to provide a detailed explanation
of its basis for believing his deposition would lead to discoverable information. Samsung
failed to do so. Fred Simon also was one of the 10 Apple employees discussed during the
parties’ February 6, and February 14-15, 2012, lead trial counsel meetings, where Samsung
explicitly promised to provide a detailed explanation of its basis for seeking Mr. Simon’s
deposition. Samsung failed to do so.

Whether documents were “sourced” to Mr. Simon does not alter that fact or justify another
unnecessary deposition. Samsung has not pointed to any documents or deposition testimony
indicating that Mr. Simon’s relevance in this case outweighs the burden to Apple of putting
up still more employees for deposition.
David Falkenberg

sf-3119216

Diane Hutnyan
March 14, 2012
Page Six
Mr. Falkenberg was one of the 10 Apple employees
discussed during the parties’ February 6, and February 14-15, 2012, lead trial counsel
meetings, where Samsung explicitly promised to provide a detailed explanation of its basis
for seeking Mr. Falkenberg’s deposition. Samsung failed to do so. Samsung has not
provided any reason why Mr. Falkenberg’s relevance in this case outweighs the burden to
Apple of putting up still more employees for deposition.
Eddy Cue and Jeff Robbin

Jeff Robbin and Eddy Cue were among the 10 Apple employees discussed during the parties’
February 6, and February 14-15, 2012, lead trial counsel meetings, where Samsung explicitly
promised to provide a detailed explanation of its basis for seeking their depositions.
Samsung failed to do so.

nowhere provides any factual basis for this assertion, and indeed fails to explain what the
assertion even means. Samsung has failed to demonstrate that the relevance of Messrs.
Robbin and Cue in this case outweighs the burden to Apple of putting up still more
employees for deposition.

sf-3119216

Diane Hutnyan
March 14, 2012
Page Seven
John Geleynse

Mr. Geleynse was among the 10 Apple
employees discussed during the parties’ February 6, and February 14-15, 2012, lead trial
counsel meetings, where Samsung explicitly promised to provide a detailed explanation of its
basis for seeking his deposition. Samsung failed to do so.

Moreover, the
February 28 letter does not specify where or by whom Mr. Geleynse “has been described” as
a go-to person with knowledge about this irrelevant topic. Samsung has failed to
demonstrate that the relevance of Mr. Geleynse this case outweighs the burden to Apple of
putting up still more employees for deposition.
Eugene Kim
Mr. Kim was
among the 10 Apple employees discussed during the parties’ February 6, and February 1415, 2012, lead trial counsel meetings, where Samsung explicitly promised to provide a
detailed explanation of its basis for seeking his deposition. Samsung failed to do so.

Mr. Kim’s relevance to this case or why the burden to Apple of providing his testimony, atop
the other 85 witnesses already deposed in this case, is justified.
Michael Lewis

sf-3119216

Diane Hutnyan
March 14, 2012
Page Eight

identify any of those
documents by Bates number or otherwise. Samsung has failed to demonstrate that the
relevance of Mr. Lewis in this case outweighs the burden to Apple of presenting him for
deposition.
Chris Birgers and Michael Solomon

Accordingly, Samsung
has failed to articulate any factual basis for their depositions, let alone one whose relevance
outweighs the burden to Apple of putting up still more employees for deposition.
Apple’s In-House Lawyers
On February 9, Apple sent Samsung its detailed 9-page letter substantiating its factual basis
for deposing Samsung’s apex witnesses. At the end of the letter, Apple set out a proposed
schedule for a motion to compel on shortened time.

sf-3119216

Diane Hutnyan
March 14, 2012
Page Nine

Samsung has failed to demonstrate any basis for its assertion that the relevance of
information Mr. Sewell and Ms. Krall are likely to have in this case outweighs the burden to
Apple of putting up still more employees for deposition, and in particular the Company’s
General Counsel and Senior Director of Intellectual Property Law and Litigation, where the
three in-house lawyers with actual involvement in the identified relevant issues have already
been deposed.
Four of Apple’s Nine Most Senior Executives
As mentioned above, on February 10, the day after Apple provided Samsung with a detailed,
9-page letter describing the bases for its pursuit of Samsung’s “apex” witnesses, Samsung
noticed the depositions of Apple CEO Tim Cook and Senior Vice President of Operations
Jeff Williams. Messrs. Cook and Williams, along with Messrs. Sewell and Cue discussed
above, are four of Apple’s nine most senior witnesses. Samsung noticed them for deposition
on February 10 solely in its attempt to create a “me too” argument for Samsung to assert in
opposition to Apple’s motion to compel.

Samsung has pointed to zero specific documents produced by
Apple or deposition testimony substantiating any relevant involvement of Mr. Cook, Mr.
Williams, Mr. Sewell, or Mr. Cue—let alone the “unique” involvement required for “apex”
witnesses, a standard that the parties have briefed extensively in recent motions. Apple
therefore has objected to the following four witnesses on both relevance and “apex” grounds:
Tim Cook, Chief Executive Officer and Board Member. Your February 28 letter
states that Samsung is seeking Mr. Cook’s deposition because of his role as “head of
Operations when the products at issue were developed.” The letter goes on to make

sf-3119216

Diane Hutnyan
March 14, 2012
Page Ten
broad assertions regarding “the role of the operations team at Apple” and assertions
that “multiple witnesses” have made regarding Mr. Cook’s role and involvement.
The February 28 letter does not identify any documents supporting these assertions,
nor does it cite any deposition testimony of these supposed “multiple witnesses.” The
February 28 letter’s only attribution of “unique” knowledge to Mr. Cook is
“regarding the distribution of the products at issue and Apple’s supply chain.”
Neither the distribution of the products at issue, nor Apple’s supply chain, has
relevance to this case sufficient to justify deposition of Apple’s CEO.
Jeff Williams, Senior Vice President of Operations. Your February 28 letter states
that Samsung is seeking Mr. Williams’s deposition because of his role as “someone
who has worked with Apple’s operations team since the late 1990s.” The February
28 letter’s only attribution of “unique” knowledge to Mr. Cook are vague references
to “the products at issue, and specifically the iPhone, [as well as] the patents in suit
and Samsung’s alleged infringement.” More specificity, as well as references to
documents and deposition testimony, is needed to satisfy the “apex” standard of
relevance.
Bruce Sewell, Senior VP and General Counsel (discussed above)
Eddy Cue, Senior Vice President, Internet Software and Services (discussed above)
Apple is willing to consider providing additional depositions if Samsung can articulate and
substantiate a factual basis for taking them. Such a basis would, at a minimum, require that
Samsung identify specific documents or other evidence justifying depositions beyond the
more than 85 that Samsung has already taken. Absent such a showing, however, Apple will
not allow its post-discovery period preparations for trial to be disrupted by more wasteful
depositions.
Sincerely,
/s/ Jason R. Bartlett
Jason R. Bartlett
cc:

Peter Kolovos
S. Calvin Walden

sf-3119216