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
2

IN THE UNITED STATES DISTRICT COURT

3

FOR THE NORTHERN DISTRICT OF CALIFORNIA

4

SAN JOSE DIVISION

5
6
7
8
9
10

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

)
)
)
)
)
)
)
)
)
)

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

11
12
13

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

14
15

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

16

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

17
18
19
20
21
22
23

(APPEARANCES CONTINUED ON THE NEXT PAGE)

24
25

OFFICIAL COURT REPORTER: SUMMER FISHER, CSR, CRR
CERTIFICATE NUMBER 13185
1

1

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

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

2

1

SAN JOSE, CALIFORNIA

2
3
4
5
6

APRIL 9, 2012

P R O C E E D I N G S
(WHEREUPON, COURT CONVENED AND THE
FOLLOWING PROCEEDINGS WERE HELD:)
THE COURT:

MR. RIVERA, WOULD YOU CALL

MATTER ON THIS MORNING'S CALENDAR.

7

THE CLERK:

8

CALLING APPLE INC. VERSUS SAMSUNG

9
10
11

ELECTRONICS.

YES, YOUR HONOR.

CASE NUMBER CV-11-1846.

MATTER ON FOR APPLE'S RULE FOR 37 (B)(2)
MOTION AND SAMSUNG'S MOTIONS TO COMPEL.

12

COUNSEL, PLEASE STATE YOUR APPEARANCES.

13

MS. TUCHER:

14

ALLISON TUCHER FROM MORRISON & FOERSTER

15
16
17

GOOD MORNING, YOUR HONOR.

ON BEHALF OF APPLE, INC.
AND WITH ME TODAY IS MY PARTNER
ERIK OLSON AND NATE SABRI.

18

THE COURT:

GOOD MORNING, COUNSEL.

19

MS. MAROULIS:

20

VICTORIA MAROULIS, COUNSEL FOR SAMSUNG.

21

WITH ME ARE MY PARTNERS DIANE HUTNYAN AND

GOOD MORNING, YOUR HONOR.

22

ANTHONY ALDEN, AND OUR ASSOCIATE TEAM MEMBERS SARA

23

JENKINS WHO WILL BE ARGUING TODAY AND JOBY MARTIN

24

AND CURRAN WALKER.

25

THE COURT:

GOOD MORNING TO YOU AND YOUR
3

1

TEAM AS WELL, MS. MAROULIS.

2

ALL RIGHT, COUNSEL.

I HAVE ON MY

3

CALENDAR THREE MOTIONS.

4

SANCTIONS AND TWO MOTIONS TO COMPEL FILED BY

5

SAMSUNG.

6

A MOTION FROM APPLE FOR

BEFORE WE TURN TO THE SUBSTANCE OF THE

7

THREE MOTIONS I WANTED TO JUST BETTER UNDERSTAND A

8

COUPLE OF LATE SUBMISSIONS THAT I RECEIVED ON

9

FRIDAY AND OVER THE WEEKEND.

10
11

MS. MAROULIS, I WILL START WITH YOU, WITH
YOUR INDULGENCE.

12

COULD YOU EXPLAIN TO ME WHY MY STAFF WAS

13

ASKED TO CONSIDER PAPERS FILED ON A SATURDAY BEFORE

14

A MONDAY HEARING?

15

MS. MAROULIS:

16

FOR LATE SUBMISSION.

17

YOUR HONOR, WE APOLOGIZE

THINGS.

18

THERE ARE TWO SEPARATE

ONE WAS OUR IN CAMERA SUBMISSION OF

19

TRANSCRIPTS.

20

NEGOTIATE WITH APPLE SUBMISSION OF THE TRANSCRIPTS

21

ON THE RECORD SO THEY ARE PART OF THE RECORD.

22

WE WEREN'T ABLE TO DO SO, SO APPLE IS REFUSING TO

23

PROVIDE THEM BUT WAS WILLING TO PROVIDE THEM IN

24

CAMERA.

25

AND WHAT WE ARE HOPING TO DO IS TO

AND

SO WE THOUGHT FOR THE COURT TO FULLY
4

1

CONSIDER THE MOTION AFTER THE HEARING AND THE

2

PLEADINGS THE COURT WOULD NEED TO ACTUALLY CONSULT

3

THE DEPOSITIONS.

4

WITH RESPECT TO THE SANCTIONS MOTION, WE

5

HAD SEVERAL LATE DEPOSITIONS ON THE 30TH AND 31ST

6

THAT WERE PART OF YOUR HONOR'S PRIOR ORDERS OF --

7
8

THE COURT:

SO OVER, I DON'T KNOW 9,

10 DAYS AGO.

9

MS. MAROULIS:

YOUR HONOR, ABOUT A WEEK.

10

AND WE DID NOT GET THE TRANSCRIPTS UNTIL THE 2ND OR

11

3RD OF APRIL.

12

AS QUICKLY AS WE COULD AND WE THOUGHT IT WOULD BE

13

MORE APPROPRIATE TO GIVE NOTICE TO APPLE BY FILING

14

THEM RATHER THAN BRING THIS MATTER UP AT THE

15

HEARING.

16
17
18

SO WE PUT TOGETHER THE SUBMISSIONS

THE COURT:

COULDN'T THAT HAVE BEEN DONE

BEFORE THE SATURDAY BEFORE THE HEARING?
MY ONLY POINT IS MY OPPORTUNITY TO

19

PROPERLY CONSIDER THE PAPERS, TO SAY NOTHING OF THE

20

OPPOSING PARTIES, IS PRETTY LIMITED.

21

AND I WOULD JUST THINK SOMETHING FILED ON

22

A SATURDAY BEFORE A MONDAY MORNING HEARING ISN'T

23

REALLY GIVING ME A FULL AND FAIR OPPORTUNITY TO

24

CONSIDER EVIDENCE THAT'S NOW ON THE RECORD AND I

25

WILL JUST HAVE TO INFORM MY DECISION.
5

1

METES AND BOUNDS OF WHAT THEY WERE OBLIGATED TO

2

PRODUCE IN RESPONSE TO YOUR ORDER.

3

JUST A NARROW POINT NOW, YOU KNOW THE

4

INCLUDED FORECAST, I WANT TO MAKE SURE YOU KNOW

5

THEY INCLUDE ACTUALS NOT JUST FORECASTS.

6

WHILE THEY MAY NOT BE PUBLICLY REPORTED,

7

THEY DO GO ALL THE WAY UP THE CHAIN IN SAMSUNG

8

KOREA SO THEIR NUMBERS ARE RELIED UPON --

9

THE COURT:

10

MS. TUCHER:

THEY ARE NUMBERS THAT MATTER.
THEY ARE NUMBERS THAT

11

MATTER, THEY ARE NUMBERS THAT HAVE BEEN GIVEN A

12

WHOLE LOT MORE REVIEW AND THOUGHT THAN THE NUMBERS

13

PROVIDED IN THE SPREADSHEET.

14

AND WHILE WE HAVE NO OBJECTION TO A

15

SPREADSHEET, OR I WOULDN'T HAVE SPOKEN SO MUCH

16

ABOUT THIS MORNING, WE DON'T THINK THAT'S A

17

SUBSTITUTE FOR PROVIDING A REPORT THAT ALREADY

18

EXISTS.

19

AND FINALLY ON THE QUESTION OF REMEDY, I

20

WANT TO POINT OUT WE DIDN'T ASK FOR PRECLUSIVE

21

SANCTIONS HERE.

22

YOUR HONOR WANTED TO SAY AN APPROPRIATE SANCTION

23

FOR THEIR BEHAVIOR, AND THEY MAY NOT CONTEST

24

MR. MUSIKA'S DAMAGES ANALYSIS, BUT I'M NOT ASKING

25

FOR THAT AND IT'S BECAUSE OF THAT THAT I DON'T

I WOULDN'T BE OPPOSED IF

102

1

THINK WE HAVE TO PROVE ANYTHING BEYOND WHAT WE'VE

2

ALREADY PROVEN IN TERMS OF THEIR MISCONDUCT IN THIS

3

CASE.

4

AND ALSO IF YOUR HONOR DECIDES THAT YOU

5

WANT TO ORDER SUPPLEMENTAL REPORT FOR MR. MUSIKA, I

6

WOULD ASK YOU TO ALSO ORDER THAT SUPPLEMENTAL

7

REPORTS FROM THE DAMAGES EXPERTS ON THEIR SIDE,

8

INCLUDING AT A MINIMUM AN EXPERT BY THE NAME OF

9

O'BRIEN AND AN EXPERT BY THE NAME TIES.

10

AND WE HAVEN'T RECEIVED THEIR REBUTTAL

11

REPORTS, SO I DON'T KNOW IF THERE ARE OTHERS.

BUT

12

ANY KIND OF EXPERT ON THE SAMSUNG SIDE THAT DOES

13

DAMAGES ANALYSIS SHOULD BE REQUIRED TO FILE A

14

SUPPLEMENTAL REPORT.

15

THE COURT:

I DON'T WANT TO PUT WORDS IN

16

YOUR MOUTH, BUT WOULDN'T YOU PREFER THERE NOT BE A

17

REPORT AND SIMPLY WE WOULD BE ABLE TO EXCLUDE ANY

18

TESTIMONY ON THAT SUBJECT AT TRIAL ON THE BASIS

19

THAT THEY DIDN'T CLOSE THEY WEREN'T AUTHORIZED TO

20

DISCLOSE?

21

MS. TUCHER:

YOUR HONOR, I WOULD

22

CERTAINLY GO BACK TO MY ORIGINAL THAT THEY BE

23

REQUIRED TO KEEP THEIR TESTIMONY LIMITED, AND THAT

24

WOULD BE FACT AND EXPERT TESTIMONY LIMITED TO WHAT

25

THEY PRODUCED BY FEBRUARY 3RD.
103

1

I DON'T WANT TO DETRACT FROM THAT.

I HAD

2

IN SOME SENSE YOU WEREN'T GOING GIVE ME EVERYTHING

3

I ASKED FOR, BUT I WANT TO MAKE CLEAR THAT IF YOU

4

DECIDE WHETHER YOU THINK IT'S APPROPRIATE, THEY

5

HAVE EXPERTS ON THEIR SIDE THAT SUBMITTED REPORTS

6

THAT MAY NEED SUPPLEMENTING.

7

TO THE EXTENT YOU WERE PRESSING ON THE

8

QUESTION OF THE FOREIGN SUBSIDIARY DATA THAT WAS

9

GIVEN TO US AND THEN TAKEN OUT, IT'S NOT JUST THAT

10

WE SAW IT ONCE, AND THAT WE KNOW EVERYTHING WE NEED

11

TO KNOW, WE NEVER GOT DATA WITH REGARD TO THE

12

HERCULES PRODUCT BECAUSE THAT CORRECTION CAME

13

LATER.

14

OPPORTUNITY TO EXAMINE THE WITNESS ON IT BECAUSE

15

THAT WAS THE INSTRUCTION NOT TO ANSWER.

AND WE, OF COURSE, DIDN'T GET AN

16

THE COURT:

ALL RIGHT.

17

THANK YOU VERY MUCH.

18

ALL RIGHT.

WELL, WE HAVE TWO OTHER

19

MOTIONS TO ADDRESS.

20

REPORTER A BREAK, SO WHY DON'T WE STAND IN RECESS

21

FOR TEN MINUTES.

22
23

I DO NEED TO GIVE THE COURT

WE WILL TAKE THIS UP AT 12:00 AND KEEP
GOING.

24

(WHEREUPON A RECESS WAS TAKEN.)

25

THE COURT:

I WANT TO TURN NEXT TO
104

1

THANK YOU.

2

(WHEREUPON, THE PROCEEDINGS IN THIS

3

MATTER WERE CONCLUDED.)

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
187

1
2
3
4

CERTIFICATE OF REPORTER

5
6
7
8
9

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

10

THE NORTHERN DISTRICT OF CALIFORNIA, 280 SOUTH

11

FIRST STREET, SAN JOSE, CALIFORNIA, DO HEREBY

12

CERTIFY:

13

THAT THE FOREGOING TRANSCRIPT,

14

CERTIFICATE INCLUSIVE, CONSTITUTES A TRUE, FULL AND

15

CORRECT TRANSCRIPT OF MY SHORTHAND NOTES TAKEN AS

16

SUCH OFFICIAL COURT REPORTER OF THE PROCEEDINGS

17

HEREINBEFORE ENTITLED AND REDUCED BY COMPUTER-AIDED

18

TRANSCRIPTION TO THE BEST OF MY ABILITY.

19
20
21
22
23

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

24
25
188

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
189