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

Filing 878

OPPOSITION to ( #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 ) Opposition filed bySamsung Electronics Co. Ltd.. (Attachments: #1 Declaration of Anderson in support, #2 Exhibit A, #3 Exhibit B)(Maroulis, Victoria) (Filed on 4/22/2012) Modified text on 4/23/2012 (dhm, COURT STAFF).

1 QUINN EMANUEL URQUHART & SULLIVAN, LLP
Charles K. Verhoeven (Bar No. 170151)
2 [e-mail]
50 California Street, 22nd Floor
3 San Francisco, California 94111
Telephone: [phone]
4 Facsimile: [phone]
5 Kevin P.B. Johnson (Bar No. 177129)
[e-mail]
6 Victoria F. Maroulis (Bar No. 202603)
[e-mail]
th
7 555 Twin Dolphin Drive, 5 Floor
Redwood Shores, California 94065-2139
[phone]
8 Telephone:
Facsimile:
[phone]
9
10 Michael T. Zeller (Bar No. 196417)
[e-mail]
11 865 S. Figueroa St., 10th Floor
Los Angeles, California 90017
12 Telephone: [phone]
Facsimile: [phone]
13
14 Attorneys for SAMSUNG ELECTRONICS CO.,
LTD., SAMSUNG ELECTRONICS AMERICA,
15 INC. and SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC
16
17

UNITED STATES DISTRICT COURT

18

NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION

19
20 APPLE INC., a California corporation,

CASE NO. 11-cv-01846-LHK (PSG)

21

SAMSUNG’S OPPOSITION TO APPLE’S
ADMINISTRATIVE REQUEST FOR
LEAVE TO FILE SUPPLEMENTAL
DECLARATION OF ERIK J. OLSON IN
SUPPORT OF APPLE’S RULE 37(b)(2)
MOTION RE SAMSUNG’S ALLEGED
VIOLATION OF JANUARY 27, 2012
DAMAGES DISCOVERY ORDER

22

Plaintiff,
vs.

23 SAMSUNG ELECTRONICS CO., LTD., a
Korean business entity; SAMSUNG
24 ELECTRONICS AMERICA, INC., a New
York corporation; SAMSUNG
25 TELECOMMUNICATIONS AMERICA,
LLC, a Delaware limited liability company,
26
Defendants.
27
28
02198.51855/4717561.3

Date:
Time:
Place:
Judge:

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

Case No. 11-cv-01846-LHK (PSG)
SAMSUNG’S OPPOSITION TO APPLE’S ADMINISTRATIVE
REQUEST FOR LEAVE TO FILE SUPPLEMENTAL DECLARATION

1

Civil Local Rule 7-3(d) requires that “[o]nce a reply is filed, no additional memoranda,

2 papers or letters may be filed without prior Court approval,” unless a party meets certain
3 exceptions not relevant here. Apple filed its Rule 37(b)(2) motion on February 28, 2012.
4 Samsung filed its opposition on March 13, 2012, and Apple filed its reply on March 20, 2012.
5 The Court heard argument on Apple's motion two weeks ago, on April 9, 2012. The record is now
6 closed, as evidenced by the Court’s denial of Samsung’s request for leave to file a sur-reply to the
7 very same motion. (Dkt. 863.) Apple’s request to file a supplemental declaration should likewise
8 be denied as untimely.
9

What is more, contrary to Apple’s assertions, its motion does not just seek to “make the

10 Court aware” of certain post-hearing developments. Rather, Apple seeks to delay the deposition
11 of Apple's damages expert, Terry Musika, whose report lies at the heart of Apple’s damages claim.
12 Mr. Musika is currently scheduled to be deposed on April 26, 2012. This was a date offered and
13 agreed to in writing by Apple before it apparently decided on a new strategy of using its pending
14 sanctions motion to delay the deposition. (See Anderson Declaration, Exh. A.) Given the
15 magnitude of the damages numbers Mr. Musika conjures, and his novel approach to arriving at
16 those numbers, Samsung will be substantially prejudiced by any further delay in deposing Mr.
17 Musika. As Apple well knows, Daubert motions are due in less than a month, on May 17, 2012.
18 (Dkt. 869 at 2.) Samsung should be allowed to take Mr. Musika’s deposition this week, on the
19 date proposed by Apple eleven days ago, so that it has sufficient time to prepare a Daubert and/or
20 summary adjudication motion.
21

Moreover, at the hearing on April 9, Apple argued that – if the Court ordered Samsung to

22 produce additional documents – both side’s experts should submit supplemental reports. (See
23 Anderson Declaration, Exh. B, at 103:4-14.) Yet now, Apple seeks to defer only its own damages
24 expert’s deposition, while the deposition of Samsung’s rebuttal damages expert proceeds as
25 planned. This would give Apple an unfair tactical advantage in this crucial phase of the case by
26 blocking Samsung from preparing a Daubert motion or other challenge, while allowing Apple to
27 proceed with the discovery it needs for the same purpose.
28
02198.51855/4717561.3

Case No. 11-cv-01846-LHK (PSG)
-1SAMSUNG’S OPPOSITION TO APPLE’S ADMINISTRATIVE
REQUEST FOR LEAVE TO FILE SUPPLEMENTAL DECLARATION

1

For the foregoing reasons, Samsung respectfully requests that the Court deny Apple leave

2 to file a Supplemental Declaration in Support of its Rule 37(b)(2) Motion Re Samsung’s Alleged
3 Violation of January 27, 2012 Damages Discovery Order. If the Court does grant Apple leave,
4 Samsung respectfully requests leave to respond to Apple’s unfounded allegations in a
5 supplemental declaration of its own.
6
DATED: April 22, 2012

Respectfully submitted,

7
8
9
10
11
12
13
14

QUINN EMANUEL URQUHART & SULLIVAN, LLP
By: /s/ Victoria F. Maroulis
Charles K. Verhoeven
Kevin P.B. Johnson
Victoria F. Maroulis
Michael T. Zeller
Attorneys for SAMSUNG ELECTRONICS CO., LTD.,
SAMSUNG ELECTRONICS AMERICA, INC. and
SAMSUNG TELECOMMUNICATIONS AMERICA,
LLC

15
16
17
18
19
20
21
22
23
24
25
26
27
28
02198.51855/4717561.3

Case No. 11-cv-01846-LHK (PSG)
-2SAMSUNG’S OPPOSITION TO APPLE’S ADMINISTRATIVE
REQUEST FOR LEAVE TO FILE SUPPLEMENTAL DECLARATION