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

Filing 892

OPPOSITION to ( #885 ADMINISTRATIVE MOTION For Clarification Of April 12 Order ) filed by Samsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: #1 Declaration, #2 Exhibit A, #3 Exhibit B, #4 Exhibit C, #5 Exhibit D, #6 Exhibit E, #7 Exhibit F, #8 Exhibit G, #9 Exhibit H, #10 Exhibit I, #11 Exhibit J, #12 Exhibit K, #13 Exhibit L, #14 Exhibit M, #15 Exhibit N, #16 Exhibit O, #17 Proposed Order)(Maroulis, Victoria) (Filed on 4/30/2012) Modified text on 5/1/2012 (dhm, COURT STAFF).

EXHIBIT L

quinn emanuel

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April 24, 2012
VIA ELECTRONIC MAIL
Mia Mazza, Esq.
Morrison & Foerster LLP
425 Market Street
San Francisco, CA 94105-2482
Re:

Apple v. Samsung Elecs. Co. et al., Case No. 11-cv-1846 LHK (N.D. Cal.)

Dear Mia,
I write in response to your April 22 letters concerning Apple's compliance with the April 12
Court Order.
Part A of the April 12 Order required Apple to produce materials related to its design patent
applications. Samsung has neither received the ordered materials nor an explanation for Apple's
delay. Please produce these materials immediately.
Apple represents that is "has completed its production of [Apple employee] deposition
transcripts pursuant to Part B.1 of the Court’s April 12, 2012, Order." Please provide the Bates
ranges for this production so that Samsung can confirm it has received, and can fully access,
these materials.
Regarding your contention that there is a "barrier to production" of the materials ordered in
Section Part B.2., if Apple truly believed this Court could not order unredacted production
without causing Apple to violate another protective order, it could have presented that argument,
and supporting evidence, to the Court in its opposition to either or both of Samsung’s motions to
compel. But it did not do so for whatever reason, and so Apple's new objection that "it does not
appear that these orders" will permit Apple to comply with the April 12 order is both belated and
quinn emanuel urquhart & sullivan, llp
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waived.
In addition, Apple has had many opportunities over the last few months to clear any supposed
“barrier[s] to production” that existed. For example, Apple could have cooperated with Samsung
to obtain consents. We told you on February 23 that Motorola needed more information about
what Apple was producing before it could give consent. We asked Apple, which had unique
knowledge of that case and of what it planned to produce, to provide that information, but we
received no response. Later we found out that this was because, while Apple had promised to
produce the materials to Samsung once we had obtained the requisite consents, Apple had no
plans to produce anything.
Another easy opportunity for Apple to avoid "barrier[s] to production" came and went when we
asked Apple, repeatedly, to identify all the third parties whose CBI was implicated , so that we
could obtain all the consents. But Apple deliberately waited until February 6 to mention two of
the entities HTC and Nokia) and did not identify Elan or Quantum as having any CBI issues until
yesterday. Assuming there is even a legitimate issue here, Apple's own obstructionism created
this situation and so Apple cannot complain now that it is in a difficult position.
Further, Judge Grewal does not view third-party CBI as a “barrier to production." The Court
specifically ordered the unredacted production of all responsive materials over Motorola’s
known objection, explaining that there is "no reason that the protective order in this case is
inadequate to protect third-party confidentiality interests." Dkt. 867. So if Apple believes that it
needs specific authorization from third parties to avoid violating its protective orders in other
cases by complying with the April 12 order, then it should work hard to obtain it before the
compliance date, rather than wasting time making new demands on Samsung.
Nothing requires Samsung to furnish Apple with direct written authorizations from the third
parties whose CBI is implicated, as Apple now requests. The Court directed Samsung to seek
the necessary consents. Despite the fact that we were unfamiliar with the materials at issue, we
did our best to obtain consents with adequate coverage, and when we were successful, we
communicated the exact consents that we had obtained to Apple in writing. Apple
acknowledged these and even complained about how “complicated” they were in its latest
opposition brief, but it never asked us to furnish direct written authorization from the parties.
Certainly, if Apple believed the December 22 order required it, or if it desired the comfort of a
direct written authorization from these third parties, it could have asked for it months ago. And
the same is true of Apple’s new demand for “blanket” consent. If Apple was concerned that the
consents we had obtained were insufficient to cover the materials our motion was seeking to
compel, it could have stated that weeks ago. All of these issues could have been resolved by
now had Apple been reasonably cooperative, rather than obstructionist.
All this said, here is the current status, as we understand it. Each of these statements assumes the
premise of Apple's new objection: that despite the Court's April 12 order, there is third-party
CBI in materials responsive to the order that cannot be produced without specific authorization
from the third parties.

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Nokia: We sent you Nokia’s direct written consent four weeks ago. If you believe the scope of
that consent will not cover the materials whose production the Court has ordered, then you will
need to discuss that issue with Nokia.
Atmel: You have already received Atmel’s direct written consent twice. If you believe the
scope of that consent will not cover the materials whose production the Court has ordered, then
you will need to discuss that issue with Atmel.
Google: More than two months ago, we described, in detail, the specific consent we had
obtained from Google. We believe Google's consent would include all pertinent materials from
the eight cases specified by the Court, based on Google's recollection of the cases in which it
produced CBI. However, if Apple is aware of Google CBI that was produced in the Elan cases,
or in the Nokia v. Apple case, then you will need to discuss that issue with Google to extend the
consent.
HTC: Almost two months ago, in our March 1 letter, we described, in detail, the consent we had
obtained from HTC. Based on what we know, we believe HTC's consent would include all
pertinent materials. However, if Apple has determined that the scope of that consent will not
cover the materials whose production the Court has ordered, then you will need to take that up
with HTC.
Motorola: We told you more than two months ago that Motorola needed more information
before it could furnish consent to produce its CBI. Apple has refused to provide such
information and so any failure to obtain consent is not Samsung's responsibility. I suggest Apple
cooperate with Motorola and give them the information that they require.
Elan, Quantum, others: We did not seek or obtain consent for these entities because Apple
never identified them as having any third-party CBI issues. Your suggestion that we "well
kn[e]w" there were other entities is belied by our repeated requests for this information and the
parties' recent briefing which only discussed the CBI of five entities. So any lack of consent is
Apple's own doing, and you will need to obtain consent from these and any other entities whose
identities Apple is still withholding from us in order to comply with the Court's order.
Samsung also rejects Apple's demand that it go through hundreds of pages of docket by to try to
identify, without being able to see any of these items, "each nonpublic item in each case that
Samsung wishes to receive." The Court has imposed no such burden on Samsung; quite the
opposite. In opposing Samsung’s motion, Apple attempted to argue that the burden of producing
these materials should fall on Samsung, but the Court rejected Apple's argument and ordered it to
produce all responsive materials. And since these are all Apple cases, Apple will be hard pressed
to explain why its production was deficient.

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In sum, it is Apple’s job to ensure that it complies in full with the Court’s order. Apple should
take any and all steps it believes are necessary immediately, in order to ensure it can make the
full production, on time, and without violating any supposed obligations it has to third parties.
Kind regards,
/s/ Diane C. Hutnyan
Diane C. Hutnyan

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