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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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APPLE, INC.,
PLAINTIFF,
VS.
SAMSUNG ELECTRONICS CO.
LTD., ET AL,
DEFENDANT.

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CV-11-1846-LHK
SAN JOSE, CALIFORNIA
APRIL 9, 2012
PAGES 1-189

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TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE PAUL S. GREWAL
UNITED STATES DISTRICT JUDGE

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A P P E A R A N C E S:

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FOR THE PLAINTIFF:

MORRISON & FOERSTER, LLP
BY: ALLISON TUCHER
NATHAN SABRI
JOBY MARTIN
425 MARKET STREET
SAN FRANCISCO, CA 94105

FOR THE DEFENDANT:

QUINN EMANUEL
BY: VICTORIA MAROULIS
SARA JENKINS
555 TWIN DOLPHIN DRIVE, 5TH FL
REDWOOD SHORES, CA 94065

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(APPEARANCES CONTINUED ON THE NEXT PAGE)

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OFFICIAL COURT REPORTER: SUMMER FISHER, CSR, CRR
CERTIFICATE NUMBER 13185
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FOR THE PLAINTIFF:

MORRISON & FOERSTER, LLP
BY: ERIK OLSON
755 PAGE MILL ROAD
PALO ALTO, CA 94304

FOR THE DEFENDANT:

QUINN EMANUEL
BY: DIANE HUTNYAN
ANTHONY ALDEN
CURRAN WALKER
865 S. FIGUEROA ST., 10TH FLOOR
LOS ANGELES, CALIFORNIA 90017

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NECESSARY?

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MS. TUCHER:

YOUR HONOR, THE BUSINESS

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PLANS HELP US TO SEE WHAT 2012 IS SUPPOSED TO LOOK

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LIKE IN SAMSUNG'S EYES.

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IT WAS PART OF WHAT YOU ORDERED PRODUCED

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ON FEBRUARY 3RD AND THEY'VE GIVEN THEM TO US IN

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REDACTED FORM, THEY JUST TOOK OUT A LOT OF THE

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INFORMATION.

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THE COURT:

REDACTED EVEN IF YOU DON'T KNOW EXACTLY?

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CAN YOU TELL WHAT'S BEEN

MS. TUCHER:

WE CAN TELL MUCH OF THE

SUBSTANCE OF THE REPORTS.

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THE COURT:

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MS. TUCHER:

ALL RIGHT.
SO THOSE ARE THE DOCUMENTS

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AND DATA THAT WE BELIEVE SHOULD HAVE BEEN PRODUCED

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FEBRUARY 3RD AND THAT WE WOULD LIKE TO HAVE

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PRODUCED AS THE FIRST ITEM IN OUR ASK HERE AS A

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RESULT OF THE VIOLATION OF YOUR FEBRUARY 3RD ORDER.

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WE THINK WE WILL NEED A LITTLE BIT OF

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TIME WITH A WITNESS TO MAKE SURE WE UNDERSTAND THE

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DATA CORRECTLY.

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SO RATHER THAN ASKING FOR A NEW 30(B)(6) DEPONENT

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YOU'VE ALREADY ORDERED THAT JOSEPH CHUNG BE MADE

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AVAILABLE.

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AT STA, WE THINK IN A POSITION TO ANSWER QUESTIONS

WE UNDERSTAND DISCOVERY IS CLOSED,

HE'S -- BECAUSE OF HIS POSITION AS CFO

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IF WE COULD HAVE A COUPLE OF EXTRA HOURS WITH HIM.
WE'VE ASKED THAT WE BE ALLOWED TO USE THE

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NEW DATA THAT WE GET FROM SAMSUNG WITHOUT FILING

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SUPPLEMENTAL EXPERT REPORT.

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THAT OUR ORIGINAL EXPERT REPORT IS IN.

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GOING TO SOON GET THEIR RESPONSE TO THAT.

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THE REASON FOR THAT IS
WE ARE

OUR DAMAGES EXPERT IS DUE TO BE DEPOSED

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SOME TIME THIS MONTH, THE LAST DATE FOR EXPERT

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DEPOSITIONS IS THE 27TH OF APRIL.

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WE DON'T THINK IT'S FAIR TO ALLOW SAMSUNG

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TWO BITES AT THE APPLE, TWO OPPORTUNITIES TO

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CROSS-EXAMINE OUR DAMAGES EXPERT AS A BENEFIT OF

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THEIR OWN VIOLATION OF YOU'RE ORDER.

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THE COURT:

SO WOULDN'T A BETTER WAY TO

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SOLVE THAT PROBLEM BE TO SIMPLY DELAY HIS

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DEPOSITION AND HAVE HIM DEPOSED ONCE AFTER A

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SUPPLEMENTAL REPORT IS TENDERED?

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MS. TUCHER:

YOUR HONOR, I UNDERSTAND

THAT THAT IS AN ALTERNATIVE.
WE HAVE BEEN DOING EVERYTHING WE CAN TO

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STICK WITH THE SCHEDULE THAT JUDGE KOH SET IN THIS

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CASE BECAUSE IT'S NOT IN APPLE'S INTEREST TO SEE

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ANYTHING DELAYED.

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KNEW THAT APRIL 27TH IS THE --

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THE COURT:

BUT I JUST WANT TO MAKE SURE YOU

I'M JUST THINKING OF
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JUDGE KOH'S INTEREST IN MANAGING A TRIAL WITH

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TESTIMONY THAT WASN'T DISCLOSED IN A REPORT, THAT

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GETS AWFULLY DIFFICULT.

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MS. TUCHER:

I UNDERSTAND YOUR POINT, BUT

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I THINK THAT SAMSUNG IS THE PARTY THAT HAS PUT US

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IN THAT POSITION AND AT SOME LEVEL IT'S SAMSUNG'S

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RESPONSIBILITY TO COPE WITH THE CONSEQUENCES.

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WE'VE ALSO ASKED THAT SAMSUNG BE REQUIRED
TO LIVE WITH THE RESULTS OF ITS FEBRUARY 3RD

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PRODUCTION.

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BECAUSE OF THE BIG NUMBER THAT I SHOWED YOU THAT

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THEY HAVE MOVED FROM, THEY PULLED OUT PROFITS AND

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MOVED INTO COSTS.

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FEBRUARY 3RD.

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WE THINK THEY SHOULD BE REQUIRED TO LIVE WITH WHAT

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THEY GAVE US AS THE DATE YOU HAD ORDERED IT.

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AND THE REASON THAT THAT MATTERS IS

AND THEY DID THAT AFTER

AND WE THINK IT WAS ILLEGITIMATE BUT

THE COURT:

I APOLOGIZE FOR JUMPING

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AROUND A BIT ON THIS, BUT IS IT FAIR FOR ME TO

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UNDERSTAND THAT ALL OF THIS INFORMATION YOU BELIEVE

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SHOULD HAVE BEEN PRODUCED AND EITHER WASN'T OR WAS

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PRODUCED FAR TOO LATE, ALL RELATES TO YOUR CLAIM

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FOR PROFITS ALONE, OR DOES THIS IMPLICATE ANY OF

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YOUR OTHER BUCKET LIST OF DAMAGES, FOR LACK OF A

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BETTER TERM?

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MS. TUCHER:

I THINK IT IS MOST DIRECTLY
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PART OF THE ORIGINAL MOTION PRACTICE.
AND I APOLOGIZE YOUR HONOR AGAIN, BUT

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SINCE YOUR HONOR DID ASK THE QUESTION, MY

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COLLEAGUES INFORM ME THAT SKYROCKET AND EPIC ARE

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ACCUSED IN CASE TWO THAT YOUR HONOR WILL BE --

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THE COURT:

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THIS AT SOME POINT OR ANOTHER.

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SO WE ARE GOING DEALING WITH

MS. MAROULIS:

THAT APPEARS TO BE

CORRECT, FOR THE RECORD.
SO GOING BACK TO WHAT WAS AND WAS NOT
WITHIN THE SCOPE OF THE ORDER OF.
SO HOW DID SAMSUNG COMPLY WITH THE ORDER
IN THE SIX CATEGORIES OF DOCUMENTS IT PRODUCED?
FIRST OF ALL, WHILE THE SPREADSHEET WAS

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THE FOCUS OF COUNSEL'S ARGUMENT, THAT IS NOT THE

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ONLY FINANCIAL DOCUMENT WE HAVE PRODUCED.

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RECALL MR. MCELHINNY TWO WEEKS AGO THEY SAY THEY

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PRODUCED ONE PAGE.

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ONE PAGE, IT'S MULTIPLE PAGES DOCUMENT WITH ALL THE

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ATTACHMENTS AND ALL THE WORKSHEETS.

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THAT'S NOT PROPER.

AND I

IT'S NOT A

BUT MORE IMPORTANTLY, THAT IS NOT THE

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ONLY DOCUMENT WE HAVE PRODUCED.

WE PRODUCED

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ADDITIONAL SALES REPORTS, CLOSING REPORTS, VARIOUS

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CARRIER DOCUMENTS THAT SHOW WHO IS SELLING WHAT.

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WE HAVE ATTACHED OUR MOTION PAPERS THE
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DECLARATION OF JOBY MARTIN, THE LIST OF SOME OF THE

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FINANCIAL DOCUMENTS AND IN OUR BRIEFS WE EXPLAIN

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WHAT OTHER DOCUMENTS WE HAVE.

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CLEAR THE SPREADSHEET SENT IS THE ONLY DOCUMENT

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APPLE RECEIVED.

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THE COURT:

SO IT'S ABSOLUTELY

IS IT ALSO CLEAR THAT NONE OF

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THE INFORMATION IN ANY OF THOSE DOCUMENTS PROVIDES

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APPLE WITH THE INFORMATION THEY ARE SEEKING BY THIS

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MOTION AND WHICH EXTENDS OUTSIDE OF THE SCOPE OF

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THOSE SIX CATEGORIES?

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MS. MAROULIS:

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YES, FOR SOME OF IT NO.

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YES AND NO. FOR SOME OF IT

FOR EXAMPLE COST AND BILL OF MATERIALS

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ARE NOT PART OF IT, FLUX REPORTS ARE PROBABLY NOT,

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BUT VARIOUS OTHER DATA THAT THEY ARE CLAIMING THEY

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DON'T HAVE CAN BE CALCULATED BY TAKING EXISTING

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DOCUMENTS WITH THE SUPPORT OF THE DEPOSITION

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TESTIMONY, AND YOUR HONOR SHOULDN'T UNDERSTAND THAT

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NOW MR. SIMMS WHO IS A VERY HIGH LEVEL EXECUTIVE

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WHICH MR. OLSON CONCEDED WAS DEPOSED TWICE AND

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MR. SHEPPARD WAS DEPOSED THREE TIMES IN THIS CASE

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ALONE, NOT COUNTING ITC.

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SO NOT ONLY HAVE WE PRODUCED ENORMOUS

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AMOUNTS OF DOCUMENTS AND FINANCIAL TOPICS, APPLE

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FOLKS HAVE NOW HAD BETWEEN 5 AND 7 OPPORTUNITIES TO
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SPEAK WITH OUR VARIOUS FINANCE PEOPLE WHO ARE VERY

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HIGH LEVEL INDIVIDUALS.

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THEY WILL ALSO HAVE AN OPPORTUNITY SPEAK

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WITH THE CFO OF STA, MR. CHUNG, PURSUANT TO THE

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APEX ORDER.

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SO THERE'S BEEN NO SHORTAGE OF
OPPORTUNITY --

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THE COURT:

I'M GLAD SAMSUNG VIEWS IT AS

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AN OPPORTUNITY, I APPRECIATE THAT CHARACTERIZATION.

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I DIDN'T MEAN TO INTERRUPT YOU THOUGH, GO

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ON.

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MS. MAROULIS:

YOUR HONOR, THE POINT

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BEING HERE IS THAT A LOT OF ARGUMENTS YOU HEARD

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TODAY WAS HOW THEY ARE GOING TO ARGUE THEIR DAMAGES

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CASE.

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NOW.

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AND I SUBMIT THAT'S NOT A PROPER FORM HERE
A LOT OF IT IS SUBSTANTIVE.
HOW DO YOU COUNT PROFITS?

DO YOU GO WITH

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CONSOLIDATED OR OTHERS?

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DISPUTES BETWEEN THE PARTIES AS TO HOW TO CALCULATE

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DAMAGES, AND THEY ARE GOING TAKE FORMS OF VARIOUS

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MOTION PRACTICE OR CROSS-EXAMINATION OF EXPERTS AT

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TRIAL.

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THERE'S GOING TO BE

IT DOESN'T PROBABLY SURPRISE YOUR HONOR

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THAT THE PARTIES DON'T SEE EYE TO EYE ABOUT HOW TO

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COUNT PROFITS, DAMAGES AND ALLOCATIONS.
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CERTIFICATE OF REPORTER

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I, THE UNDERSIGNED OFFICIAL COURT
REPORTER OF THE UNITED STATES DISTRICT COURT FOR

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THE NORTHERN DISTRICT OF CALIFORNIA, 280 SOUTH

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FIRST STREET, SAN JOSE, CALIFORNIA, DO HEREBY

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CERTIFY:

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THAT THE FOREGOING TRANSCRIPT,

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CERTIFICATE INCLUSIVE, CONSTITUTES A TRUE, FULL AND

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CORRECT TRANSCRIPT OF MY SHORTHAND NOTES TAKEN AS

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SUCH OFFICIAL COURT REPORTER OF THE PROCEEDINGS

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HEREINBEFORE ENTITLED AND REDUCED BY COMPUTER-AIDED

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TRANSCRIPTION TO THE BEST OF MY ABILITY.

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__________________________
SUMMER A. FISHER, CSR, CRR
CERTIFICATE NUMBER 13185

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