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

Filing 887

Declaration of Mia Mazza In Support Of Apples Administrative Motion For Clarification Regarding April 12 Order filed byApple Inc.. (Attachments: #1 Exhibit 1, #2 Exhibit 2, #3 Exhibit 3, #4 Exhibit 4, #5 Exhibit 5, #6 Exhibit 6, #7 Exhibit 7, #8 Exhibit 8, #9 Exhibit 9, #10 Exhibit 10, #11 Exhibit 11, #12 Exhibit 12, #13 Exhibit 13, #14 Exhibit 14, #15 Exhibit 15, #16 Exhibit 16, #17 Exhibit 17, #18 Exhibit 18, #19 Exhibit 19, #20 Exhibit 20, #21 Exhibit 21, #22 Exhibit 22, #23 Exhibit 23, #24 Exhibit 24)(Tucher, Alison) (Filed on 4/26/2012)

Exhibit 4

UNITED STATES INTERNATIONAL TRADE COMMISSION
Washington, D.C.

In the Matter of
CERTAIN ELECTRONIC DEVICES WITH
MULTI-TOUCH ENABLED TOUCHPADS
AND TOUCHSCREENS

Inv. No. 337-TA-714

Order No.2: Protective Order
WHEREAS, documents and information may be sought, produced or exhibited by and
among the parties to the above captioned proceeding, which materials relate to trade secrets or
other confidential research, development or commercial information, as such terms are used in
the Commission's Rules, 19 C.F.R. Section 210.34(a)(7),
IT IS HEREBY ORDERED THAT:
1. Confidential business information is information which has not been made public and
which concerns or relates to the trade secrets, processes, operations, style of work, or apparatus,
or to the production, sales, shipments, purchases, transfers, identification of customers,
inventories, amount or source of any income, profits, losses, or expenditures of any person, firm,
partnership, corporation, or other organization, the disclosure of which information is likely to
have the effect of either (1) impairing the Commission's ability to obtain such information as is
necessary to perform its statutory functions, or (2) causing substantial harm to the competitive
position of the person, firm, partnership, corporation, or other organization from which the
information was obtained, unless the Commission is required by law to disclose such
information.

2. Any information submitted, either voluntarily or pursuant to order, in this
investigation, which is asserted by a supplier to contain or constitute confidential business
information shall be so designated by such supplier in writing, or orally at a deposition,
conference or hearing, and shall be segregated from other information being submitted.
Documents shall be clearly and prominently marked on their face with the legend: "[supplier's
name] CONFIDENTIAL BUSINESS INFORMATION, SUBJECT TO PROTECTIVE
ORDER," or a comparable notice. Information obtained during discovery and asserted by the
supplier to be.confidential under this order will be deemed to be confidential unless the
administrative law judge or the Commission rules that it is not. When such information is made
part of a pleading, or is offered into the evidentiary record, the party offering it must state the
basis for its claimed confidentiality. Confidential information whether submitted in writing or in
oral testimony shall be disclosed at a hearing only on the in camera record and shall not be made
part of the public record of this proceeding. The administrative law judge or the Commission
may determine that information alleged to be confidential is not confidential, or that its
disclosure is necessary for the proper disposition of the proceeding, at any time before, during or
after the close of the hearing herein. If such a determination is made by the administrative law
judge, opportunity shall be provided to the supplier of such information to argue its
confidentiality, prior to the time that such ruling becomes final.
3. In the absence of written permission from the supplier or an order by the Commission
or the administrative law judge, any confidential documents or business information submitted in
accordance with the provisions of paragraph 2 above shall not be disclosed to any person other
than: (i) outside counsel for parties to this investigation, including necessary secretarial and
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clerical personnel assisting such counsel, (ii) qualified persons taking testimony involving such
documents or information and necessary stenographic and clerical personnel thereof, (iii)
technical experts and their staff who are employed by outside counsel under (i) above for the
purposes of this litigation (unless they are otherwise employed by, consultants to, or otherwise
affiliated with a non-governmental party, or are employees of any domestic or foreign
manufacturer, wholesaler, retailer, or distributor of Certain Electronic Devices With Multi-Touch
Enabled TouchPads And Touchscreens, which are the subject of this investigation), and (iv) the
Commission, the administrative law judge, the Commission staff, and personnel of any
governmental agency as authorized by the Commission. However see Commission rule 210.5
(b) which conforms to 19 U.S.C. § 1337(n)(2), which clarifies the list of government officers and
employees who may have access to confidential business information, and (c) which alerts
suppliers to the possibility that confidential business information may be transmitted to a federal
district court, subject to such protective order as the district court determines necessary. This
result might occur in a limited class of cases because of28 U.S.C. § 1659. Past Commission
practice has been to permit the transfer of confidential business information to another court only
with permission of the supplier of the information. Particularly where the supplier is a third party
who is involved in neither the Commission investigation nor the district court case, it is
important that the supplier be made aware that treatment of confidential information would be
governed by the district court's protective order and not that of the Commission following
transmittal of the record under this provision. See also Commission rule 210.39 which outlines
the circumstances in which the Commission's record, including the in camera record, may be
transmitted to a federal district court, subject to such protective order as the district court

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determines necessary. In addition, referring to Commission Administrative Order No. 97-06,
dated February 4, 1997, information submitted under this Protective Order may be disclosed to
technical contract personnel who are acting in the capacity of Commission employees, for
developing or maintaining the records of this investigation or related proceedings, or in internal
audits and investigations relating to the programs and operations of the Commission pursuant to
5 U.S.C. Appendix 3. Any contract personnel will sign appropriate non-disclosure agreements.}
Where the supplier of information under this order is a third party who is not involved in the
Commission investigation, it is important that the supplier be made aware of the disclosure of
such information to contract personnel by being provided a copy of the protective order.
4. Confidential business information submitted in accordance with the provisions of
paragraph 2 above shall not be made available to any person designated in paragraph 3(i) and (iii)
unless he or she shall have first read this order and shall have agreed, by letter filed with the
Secretary of this Commission (letter of acknowledgment): (i) to be bound by the terms thereof;
(ii) not to reveal such confidential business information to anyone other than another person
designated in paragraph 3; and (iii) to utilize such confidential business information solely for
purposes of this investigation. Such letter shall also acknowledge that the signatory(ies) has
(have) read the order. Such letter shall further state which parties the person filing the letter is
involved with and shall state in what capacity he or she is a signatory to the Protective Order
(M:., as an attorney under Paragraph 3(i) or technical expert under Paragraph 3(iii) and, in the
case of an attorney, in what jurisdictions he or she is admitted to practice. Each attorney seeking

1 A supplier of confidential business information may request that the administrative law
judge identify said contract personnel.

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access to confidential business information shall sign such letter individually, but clerical and
support personnel (including law clerks and paralegals) of that attorney need not sign. All letters
of acknowledgment of this Protective Order shall be served on all non-parties who have
theretofore submitted confidential business information in accorda,nce with the provisions of
paragraph 2, above.
5. Confidential business information obtained in the Commission proceeding may be
used with the consent of the supplier in a parallel district court proceeding under a protective
order issued by the district court without losing its confidential status under the protective order
in this proceeding as long as the information is not made public in the district court proceeding or
by someone who obtains the information from that source or by anyone else.
6. Confidential business information furnished by a supplier may lose its protection
under this order if it is disseminated to anyone not authorized to see it either by this protective
order or by a protective order issued by a district court in a parallel proceeding protecting
confidential business information obtained by the parties under the Commission's protective
order. Information obtained pursuant to the Commission's protective order, however, may be
produced to the district court under the district court protective order only with the consent of the
suppliers of that information.
7. If the Commission or the administrative law judge orders, or if the supplier and all
parties to the investigation agree, that access to, or dissemination of, information submitted as
confidential business information shall be made to persons not included in paragraphs 3, 5 or 6
above, such matter shall only be accessible to, or disseminated to, such persons based on the
conditions pertaining to, and obligations arising from, this order, and such persons shall be

5

considered subject to it unless the Commission or the administrative law judge finds that the
information is not confidential business information as defined in paragraph 1 hereof.
8. Any confidential business information submitted to the Commission or the
administrative law judge in connection with a motion or other proceeding within the purview of
this investigation shall be submitted under a designation that confidential information is
contained or attached therein, pursuant to paragraph 2 above. When any confidential business
information submitted in accordance with paragraph 2 above is included in an authorized
transcript of a deposition or exhibits thereto, arrangements shall be made with the court reporter
taking the deposition to bind such confidential portions and separately label them "[supplier's
name], CONFIDENTIAL BUSINESS INFORMATION, SUBJECT TO PROTECTIVE
ORDER." Before a court reporter receives any such information, he or she shall have first read
this order and shall have agreed in writing to be bound by the terms thereof. Alternatively, he or
she shall sign the agreement included as Attachment A hereto. Copies of each such signed
agreement shall be provided to the supplier of such confidential business information and to the
Secretary of the Commission.
9. The restrictions upon, and obligations accruing to, 'persons who become subject to this
order shall not apply to any information submitted in accordance with paragraph 2 above to
which the person asserting the confidential status thereof agrees in writing, or the Commission or
the administrative law judge rules, after proper notice and hearing, was publicly known at the
time it was supplied to the receiving party or has since become publicly known through no fault
of the receiving party.
10. The administrative law judge acknowledges that any document or information
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submitted as confidential business information pursuant to paragraph 2 above is to be treated as
such within the meaning of 5 U.S.C. § 522(b)(4) and 18 U.S.C. § 1905, subject to a challenge by
any party pursuant to paragraph 12 below or to a final ruling by the Commission, the
administrative law judge or its Freedom of Information Act Officer to the contrary, or by appeal
of such a ruling, interlocutory or otherwise.
11. If no determination has been made by the administrative law judge or the
Commission that the information designated as confidential by the submitter is not confidential,
the persons who are recipients of such information shall take all necessary and proper steps to
preserve the confidentiality of, and to protect each supplier's rights with respect to, any
confidential business information designated by the supplier in accordance with paragraph 2
above.
12. The supplier of any confidential information is hereby notified that Commission
regulations 19 C.F .R. § 20 1.19(c) through (e) generally require that the Commission will give
notice to a submitter of confidential information upon the Commission's receipt of an FOIA
request.
13. The supplier of any confidential information is put on notice that Commission rule
210.20 provides that only a party may move to declassify and that only then are such motions,
whether brought at any time during or after the conclusion of an investigation, addressed to and
ruled upon by an administrative law judge. Other requests to declassify made by non-parties,
such as an FOIA request, will not be referred to the administrative law judge for consideration
under the protective order.
14. If a party to this order who is a recipient of any business information designated as

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confidential and submitted in accordance with paragraph 2, disagrees with respect to such a
designation, in full or in part, it shall notify the supplier in writing, and they will thereupon
confer as to the status of the subject information proffered within the context of this order. If
prior to, or at the time of, such a conference, the supplier withdraws its designation of such
information as being subject to this order, but nonetheless submits such information for purposes
of the investigation, such supplier shall express the withdrawal in writing and shall serve such
withdrawal upon all parties, the administrative law judge, and the Commission investigative
attorney. If the recipient and supplier are unable to concur upon the status of the subject
information submitted as confidential business information within ten days from the date of
notification of such disagreement, any party to this order may raise the issue of the designation of
such a status to the Commission or to the administrative law judge, and the Commission or the
administrative law judge may raise the issue of designation of the confidential status without any
request from a party. Upon notice that such confidential status of information is at issue, the
party to the investigation which submitted the information and designated it as confidential shall
have the burden of proving such confidential status.
15. No less than ten days (or any other period of time designated by the administrative
law judge) prior to the initial disclosure to the proposed expert of any confidential information
submitted in accordance with paragraph 2, the party proposing to use such expert shall submit in
writing the name of such proposed expert and his or her educational and employment history to
the supplier. If the supplier objects to the disclosure of such confidential business information to
such proposed expert as inconsistent with the language or intent of this order or on other
grounds, it shall notify the recipient in writing of its objection and the grounds therefor prior to
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the initial disclosure. If the dispute is not resolved on an informal basis within ten days of receipt
of such notice of objection, motion may be made to the administrative law judge for a ruling on
such objection. The submission of such confidential business information to such proposed
expert shall be withheld pending the ruling of the administrative law judge. The terms of this
paragraph shall be inapplicable to experts within the Commission or to experts from other
governmental agencies who are consulted with, or used by, the Commission.
16. If confidential business information submitted in accordance with paragraph 2 is
disclosed to any person other than in the manner authorized by this protective order, the party
responsible for the disclosure must immediately bring all pertinent facts relating to such
disclosure to the attention of the supplier and the administrative law judge and, without prejudice
to other rights and remedies of the supplier, make every effort to prevent further disclosure by it
or by the person who was the recipient· of such information.
17. Nothing in this order shall abridge the right of any person to seek judicial review or
to pursue other appropriate judicial action with respect to any ruling made by the Comnlission,
its Freedom of Information Act Officer, or the administrative law judge concerning the issue of
the status of confidential business information.
18. Upon final termination of this investigation, each party that is subject to this order
shall destroy or return to the supplier all items containing confidential business information
subnlitted in accordance with paragraph 2 above, including all copies of such matter which may
have been made, but not including copies containing notes or other attorney's work product that
may have been placed thereon by counsel for the receiving party. All copies containing such
notes or other attorney's work product shall be destroyed. Receipt of material returned to the
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supplier shall be acknowledged in writing. This paragraph shall not apply to the Commission,
including its investigative attorney, and the administrative law judge, which shall retain such
material pursuant to statutory requirements and for other recordkeeping purposes, but may
destroy those additional copies in its possession which are regarded as surplusage.
19. If any confidential business information which is supplied in accordance with
paragraph 2 above is supplied by a non-party to this investigation, such a non-party shall be
considered a "supplier" within the meaning of that term as it is used in the context of this order.
20. At or before the final termination of the investigation, copies of confidential
information that was in the hands of expert witnesses must be retrieved or destroyed.
21. Except as provided in Commission rule 210.20, the jurisdiction of the administrative
law judge over this order terminates upon filing of the initial determination issued at the end of
the case. After that date, the Commission has jurisdiction to enforce this order and to issue
reprimands and other sanctions.
22. The parties may move to amend this order, but any proposed amendment that would
broaden the range of persons having access to confidential business information must be
proposed and adopted before such information is supplied in reliance upon the terms of this
order, unless all suppliers of confidential information consent to the amendment.
23. The Secretary shall serve a copy of this order upon all parties.

Paul J. Lucker
Chief Administrative Law Judge
Issued: April 26, 2010
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ATTACHMENT A
NONDISCLOSURE AGREEMENT FOR REPORTER/STENOGRAPHER/TRANSLATOR
I,

_ _ _ _ _ _ _ _ _ _ _ _ _" do solemnly swear that I will not divulge any

information communicated to me in any confidential portion of the investigation or hearing in
Certain Electronic Devices With Multi-Touch Enabled Touchpads And Touchscreens, Inv. No.
337-TA-714, except as permitted in the protective order issued in this case. I will not directly or
indir~ctly

use, or allow the use of such information for any purpose other than that directly

associated with my official duties in this case.
Further, I will not by direct action, discussion, recommendation, or suggestion to any
person reveal the nature of content of any information communicated during any confidential
portion of the investigation or hearing in this case.
I also affirm that I do not hold any position or official relationship with any of the
participants in said investigation.
I am aware that the unauthorized use or conveyance of information as specified above is a
violation of the Federal Criminal Code and punishable by a fine of up to $10,000, imprisonment
of up to ten (l0) years, or both.
Signed
Dated
Firm or affiliation

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CERTAIN ELECTRONIC DEVICES WITH MULTI-TOUCH
ENABLED TOUCHPADS AND TOUCHSCREENS

337-TA-714

PUBLIC CERTIFICATE OF SERVICE

I, Marilyn R. Abbott, hereby certify that the attached Order has been served by hand upon the
Commission Investigative Attorney, Aarti Shah, Esq., and the following parties as indicated, on
April 27, 2010

arilyn R. :Abbott, Secretary
Jtff;:>
U.S. International Trade Commission
500 E Street, SW
Washington, DC 20436

On Behalf of Complainant Elan Microelectronics
Corporation:

Paul F. Brinkman, Esq.
ALSTON & BIRD LLP
The Atlantic Building
950 F Street, NW
Washington, DC 20004

(R:v·a Hand Delivery
() ia Overnight Mail
( Via First Class Mail
( ) Other:
_

Respondent:

Apple Inc.
1 Infinite Loop
Cupertino, CA 95014

(fjia Hand Delivery
(
ia Overnight Mail
( ) Via First Class Mail
( ) Other:
_

PUBLIC MAILING LIST

Heather Hall
LEXIS-NEXIS
9443 Springboro Pike
Miamisburg, OH 45342

( ) Via Hand Delivery
( );Wia Overnight Mail
(~Via First Class Mail
( ) Other:
_

Kenneth Clair
Thomson West
1100 Thirteen Street, NW, Suite 200
Washington, DC 20005

( ) VJ a Hand Delivery

() ia Overnight Mail
( Via First Class Mail
( ) Other:
_