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

Filing 877

ADMINISTRATIVE REQUEST For Leave To File Supplemental Declaration Of Erik J. Olson In Support Of Apples Rule 37(B)(2) Motion Re Samsungs Violation Of January 27, 2012 Damages Discovery Order filed by Apple Inc.. (Attachments: #1 Declaration of Erik J. Olson ISO Rule 37(b)(2) re Damages, #2 Exhibit A, #3 Exhibit B, #4 Exhibit C, #5 Proposed Order)(Tucher, Alison) (Filed on 4/20/2012) Modified text on 4/23/2012 (dhm, COURT STAFF).

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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]

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]

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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,

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Defendants.
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Case No.

11-cv-01846-LHK (PSG)

SUPPLEMENTAL
DECLARATION OF ERIK J.
OLSON IN SUPPORT OF
APPLE’S RULE 37(B)(2) MOTION
RE SAMSUNG’S VIOLATION OF
JANUARY 27, 2012 DAMAGES
DISCOVERY ORDER
Date:
Time:
Place:
Judge:

April 9, 2012
10:00 a.m.
Courtroom 5, 4th Floor
Hon. Paul S. Grewal

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SUPPLEMENTAL OLSON DECL. ISO APPLE’S MOT. TO ENFORCE THE COURT’S JANUARY 27 ORDER & SEEK SANCTIONS
CASE NO. 11-CV-01846-LHK (PSG)
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I, Erik J. Olson, 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 litigation team. I make this Supplemental Declaration in support of Apple’s

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Motion regarding Samsung’s Violation of the Court’s January 27, 2010 Damages Discovery

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Order (“Motion”).

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2.

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After the Motion was argued and submitted on April 9, 2012, three relevant

developments have occurred that Apple wishes to bring to the Court’s attention. To the extent the

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Court has questions regarding the facts set forth in this Declaration, Apple will be prepared to

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address them during the upcoming April 24 hearing on another Apple motion.

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Scheduling the Deposition of Apple’s Damages Expert Terry Musika

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3.

Apple’s Motion requests that Samsung be required to produce additional

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documents and data to Apple, but that Apple’s expert not be required to produce a supplemental

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report or sit for a second deposition. (Dkt. No. 759-2 at 17.) During the hearing on Apple’s

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Motion, counsel for Apple argued that it would not be fair to give Samsung two opportunities to

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cross-examine Apple’s damages expert as a benefit of Samsung’s own violation of the Court’s

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order. (Apr. 9, 2012 Hrg. Tr. at 53.) The Court responded, “Wouldn’t a better way to solve that

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problem be simply to delay his deposition and have him deposed once after a supplement report is

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tendered?” (Id.) For the Court’s convenience, a true and correct copy of an excerpt of the

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April 9, 2012, transcript is attached hereto as Exhibit A.

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4.

Following the Court’s direction, Apple has asked Samsung to defer the deposition

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of Apple’s damages expert, Terry Musika, until the Court rules on the pending motion. Samsung

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has refused. Attached hereto as Exhibits B and C are true and correct copies of correspondence

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between counsel for Apple and counsel for Samsung reflecting this exchange.

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5.

Mr. Musika’s deposition is currently scheduled for April 26, 2012.

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SUPPLEMENTAL OLSON DECL. ISO APPLE’S MOT. TO ENFORCE THE COURT’S JANUARY 27 ORDER & SEEK SANCTIONS
CASE NO. 4:11-cv-01846-LHK (PSG)
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The Sixth Version of Samsung’s Spreadsheet

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6.

Apple’s Motion addressed the multiple versions of a spreadsheet produced by

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Samsung after the Court’s February 3 deadline. (Dkt. No. 759-2 at 10-12.) Samsung’s damages

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expert, in his April 16 rebuttal expert report, makes reference to yet another version of this

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spreadsheet, containing different numbers from any version previously produced to Apple. On

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April 17, 2012, Samsung produced this sixth version of the spreadsheet and other financial data,

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apparently assembled for the benefit of Samsung’s damages expert but not provided previously to

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Apple. Based on what Apple can determine, this sixth spreadsheet suffers from the same

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problems and errors in the previous versions, which were discussed at the hearing on Apple’s

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Motion.

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The Deposition of Joseph Cheong

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7.

Apple’s Motion requests that Apple be permitted to depose a witness

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knowledgeable about any financial information Samsung might be ordered to produce as a result

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of the Motion. (Dkt. No. 759-2 at 18.) During the hearing on Apple’s Motion, Apple suggested

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that the deposition of Joseph Cheong, the Chief Financial Officer of Samsung

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Telecommunications America LLC, might satisfy this request. (Apr. 9, 2012 Hrg. Tr. at 52-53.)

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Counsel for Samsung similarly described Mr. Cheong’s deposition as “an opportunity” to obtain

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relevant testimony. (Id. at 70.)

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8.

Mr. Cheong was deposed on April 18, 2012. During his deposition, Mr. Cheong

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was shown two versions of Samsung’s financial spreadsheet. Mr. Cheong testified that he had

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never seen the spreadsheets, had no understanding of what they were, and could not state whether

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they were accurate. Accordingly, Mr. Cheong’s deposition could not satisfy Apple’s request for

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the deposition of a witness knowledgeable about Samsung’s financial information.

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I declare under penalty of perjury that the foregoing is true and correct. Executed on
April 20, 2012, at Palo Alto, California.
/s/ Erik Olson
Erik Olson

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SUPPLEMENTAL OLSON DECL. ISO APPLE’S MOT. TO ENFORCE THE COURT’S JANUARY 27 ORDER & SEEK SANCTIONS
CASE NO. 4:11-cv-01846-LHK (PSG)
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ATTESTATION OF E-FILED SIGNATURE
I, Alison M. Tucher, 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 Erik Olson has

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concurred in this filing.

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Dated: April 20, 2012

/s/ Alison M. Tucher
Alison M. Tucher

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SUPPLEMENTAL OLSON DECL. ISO APPLE’S MOT. TO ENFORCE THE COURT’S JANUARY 27 ORDER & SEEK SANCTIONS
CASE NO. 11-CV-01846-LHK (PSG)
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