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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1 2 3 4 5 6 7 8 9 HAROLD J. MCELHINNY (CA SBN 66781) hmcelhinny@mofo.com MICHAEL A. JACOBS (CA SBN 111664) mjacobs@mofo.com JENNIFER LEE TAYLOR (CA SBN 161368) jtaylor@mofo.com ALISON M. TUCHER (CA SBN 171363) atucher@mofo.com RICHARD S.J. HUNG (CA SBN 197425) rhung@mofo.com JASON R. BARTLETT (CA SBN 214530) jasonbartlett@mofo.com MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: (415) 268-7000 Facsimile: (415) 268-7522 WILLIAM F. LEE william.lee@wilmerhale.com WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 Telephone: (617) 526-6000 Facsimile: (617) 526-5000 MARK D. SELWYN (SBN 244180) mark.selwyn@wilmerhale.com WILMER CUTLER PICKERING HALE AND DORR LLP 950 Page Mill Road Palo Alto, California 94304 Telephone: (650) 858-6000 Facsimile: (650) 858-6100 10 11 Attorneys for Plaintiff and Counterclaim-Defendant APPLE INC. 12 13 UNITED STATES DISTRICT COURT 14 NORTHERN DISTRICT OF CALIFORNIA 15 SAN JOSE DIVISION 16 17 APPLE INC., a California corporation, Plaintiff, 18 19 20 21 22 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, 23 Defendants. 24 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 25 26 27 28 SUPPLEMENTAL OLSON DECL. ISO APPLE’S MOT. TO ENFORCE THE COURT’S JANUARY 27 ORDER & SEEK SANCTIONS CASE NO. 11-CV-01846-LHK (PSG) sf-3135689 1 I, Erik J. Olson, declare as follows: 2 1. I am a partner in the law firm of Morrison & Foerster LLP, counsel for Apple Inc. 3 (“Apple”). I am licensed to practice law in the State of California. Unless otherwise indicated, I 4 have personal knowledge of the matters stated herein or understand them to be true from 5 members of my litigation team. I make this Supplemental Declaration in support of Apple’s 6 Motion regarding Samsung’s Violation of the Court’s January 27, 2010 Damages Discovery 7 Order (“Motion”). 8 2. 9 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 10 Court has questions regarding the facts set forth in this Declaration, Apple will be prepared to 11 address them during the upcoming April 24 hearing on another Apple motion. 12 Scheduling the Deposition of Apple’s Damages Expert Terry Musika 13 3. Apple’s Motion requests that Samsung be required to produce additional 14 documents and data to Apple, but that Apple’s expert not be required to produce a supplemental 15 report or sit for a second deposition. (Dkt. No. 759-2 at 17.) During the hearing on Apple’s 16 Motion, counsel for Apple argued that it would not be fair to give Samsung two opportunities to 17 cross-examine Apple’s damages expert as a benefit of Samsung’s own violation of the Court’s 18 order. (Apr. 9, 2012 Hrg. Tr. at 53.) The Court responded, “Wouldn’t a better way to solve that 19 problem be simply to delay his deposition and have him deposed once after a supplement report is 20 tendered?” (Id.) For the Court’s convenience, a true and correct copy of an excerpt of the 21 April 9, 2012, transcript is attached hereto as Exhibit A. 22 4. Following the Court’s direction, Apple has asked Samsung to defer the deposition 23 of Apple’s damages expert, Terry Musika, until the Court rules on the pending motion. Samsung 24 has refused. Attached hereto as Exhibits B and C are true and correct copies of correspondence 25 between counsel for Apple and counsel for Samsung reflecting this exchange. 26 5. Mr. Musika’s deposition is currently scheduled for April 26, 2012. 27 28 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) 1 sf-3135689 1 The Sixth Version of Samsung’s Spreadsheet 2 6. Apple’s Motion addressed the multiple versions of a spreadsheet produced by 3 Samsung after the Court’s February 3 deadline. (Dkt. No. 759-2 at 10-12.) Samsung’s damages 4 expert, in his April 16 rebuttal expert report, makes reference to yet another version of this 5 spreadsheet, containing different numbers from any version previously produced to Apple. On 6 April 17, 2012, Samsung produced this sixth version of the spreadsheet and other financial data, 7 apparently assembled for the benefit of Samsung’s damages expert but not provided previously to 8 Apple. Based on what Apple can determine, this sixth spreadsheet suffers from the same 9 problems and errors in the previous versions, which were discussed at the hearing on Apple’s 10 Motion. 11 The Deposition of Joseph Cheong 12 7. Apple’s Motion requests that Apple be permitted to depose a witness 13 knowledgeable about any financial information Samsung might be ordered to produce as a result 14 of the Motion. (Dkt. No. 759-2 at 18.) During the hearing on Apple’s Motion, Apple suggested 15 that the deposition of Joseph Cheong, the Chief Financial Officer of Samsung 16 Telecommunications America LLC, might satisfy this request. (Apr. 9, 2012 Hrg. Tr. at 52-53.) 17 Counsel for Samsung similarly described Mr. Cheong’s deposition as “an opportunity” to obtain 18 relevant testimony. (Id. at 70.) 19 8. Mr. Cheong was deposed on April 18, 2012. During his deposition, Mr. Cheong 20 was shown two versions of Samsung’s financial spreadsheet. Mr. Cheong testified that he had 21 never seen the spreadsheets, had no understanding of what they were, and could not state whether 22 they were accurate. Accordingly, Mr. Cheong’s deposition could not satisfy Apple’s request for 23 the deposition of a witness knowledgeable about Samsung’s financial information. 24 25 26 27 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 28 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) 2 sf-3135689 1 2 ATTESTATION OF E-FILED SIGNATURE I, Alison M. Tucher, am the ECF User whose ID and password are being used to file this 3 Declaration. In compliance with General Order 45, X.B., I hereby attest that Erik Olson has 4 concurred in this filing. 5 Dated: April 20, 2012 /s/ Alison M. Tucher Alison M. Tucher 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SUPPLEMENTAL OLSON DECL. ISO APPLE’S MOT. TO ENFORCE THE COURT’S JANUARY 27 ORDER & SEEK SANCTIONS CASE NO. 11-CV-01846-LHK (PSG) 3 sf-3135689

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