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

Filing 895

Administrative Motion to File Under Seal filed by Apple Inc.. (Attachments: #1 Apple Inc.s Motion For Adverse Inference Jury Instructions Due To Samsungs Spoliation Of Evidence, #2 Declaration of Esther Kim ISO Apple Inc.s Motion For Adverse Inference Jury Instructions Due To Samsungs Spoliation Of Evidence, #3 Exhibit 1, #4 Exhibit 32, #5 Exhibit 33, #6 Proposed Order Granting Apple Inc.s Motion For Adverse Inference Jury Instructions Due To Samsungs Spoliation Of Evidence, #7 Proposed Order Granting Apple's Administrative Motion to Seal Documents)(McElhinny, Harold) (Filed on 5/1/2012)

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HAROLD J. MCELHINNY (CA SBN 66781)
[e-mail]
MICHAEL A. JACOBS (CA SBN 111664)
[e-mail]
JENNIFER LEE TAYLOR (CA SBN 161368)
[e-mail]
ALISON M. TUCHER (CA SBN 171363)
[e-mail]
RICHARD S.J. HUNG (CA SBN 197425)
[e-mail]
JASON R. BARTLETT (CA SBN 214530)
[e-mail]
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: [phone]
Facsimile: [phone]

WILLIAM F. LEE
[e-mail]
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
Telephone: [phone]
Facsimile: [phone]
MARK D. SELWYN (SBN 244180)
[e-mail]
WILMER CUTLER PICKERING
HALE AND DORR LLP
950 Page Mill Road
Palo Alto, California 94304
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiff and
Counterclaim-Defendant APPLE INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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APPLE INC., a California corporation,
Plaintiff,

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v.
SAMSUNG ELECTRONICS CO., LTD., A
Korean business entity; SAMSUNG
ELECTRONICS AMERICA, INC., a New York
corporation; SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC, a
Delaware limited liability company.,

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Defendants.
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Case No.

11-cv-01846-LHK (PSG)

DECLARATION OF
ESTHER KIM IN SUPPORT OF
APPLE INC.’S MOTION FOR
ADVERSE INFERENCE JURY
INSTRUCTIONS DUE TO
SAMSUNG’S SPOLIATION OF
EVIDENCE
Date:
Time:
Place:
Judge:

June 7, 2012
1:30 p.m.
Courtroom 8, 4th Floor
Hon. Lucy H. Koh

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REDACTED PUBLIC VERSION

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KIM DECL. ISO APPLE’S MOTION FOR ADVERSE INFERENCE JURY INSTRUCTIONS DUE TO SPOLIATION
CASE NO. 11-CV-01846-LHK (PSG)
sf-3139313

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I, Esther Kim, declare as follows:

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I am an associate in the law firm of Morrison & Foerster LLP, counsel for Apple

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Inc. (“Apple”). I am licensed to practice law in the State of California. Unless otherwise

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indicated, I have personal knowledge of the matters stated herein or understand them to be true

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from other members of my litigation team. I make this Declaration in support of Apple’s Motion

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for Adverse Inference Jury Instructions Due to Samsung’s Spoliation of Evidence.

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2.

Certain exhibits to this Declaration consist of Korean-language documents

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produced by Samsung in this action. To the extent time has permitted, Apple has obtained

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certified translations of the documents and submits those translations herewith along with each

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Korean original. For the remaining Korean-language documents, Apple has obtained non-

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certified translations and submits those herewith along with the Korean original.

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3.

Attached hereto as Exhibit 1 is a true and correct copy of a translation of the

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Republic of Korea’s Fair Trade Commission (“KFTC”) Press Release dated March 16, 2012,

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which was obtained from the official website of the KFTC, at the address:

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http://www.ftc.go.kr/news/ftc/reportView.jsp?report_data_no=4688&report_data_div_cd=&tribu

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_type_cd=&currpage=6&searchKey=&searchVal=&stdate=&enddate= (last accessed on

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April 29, 2012).

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4.

Under my supervision, contract attorneys for Morrison & Foerster reviewed the

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custodial documents Samsung produced for witnesses who were deposed by Apple—documents

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produced in this action, as well as documents produced in the matter of Certain Electronic Digital

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Media Devices and Components Thereof, Investigation No. 337-TA-796, pending in the

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International Trade Commission (“ITC action”). The contract attorneys tallied the number of

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emails within the custodial documents for each witness.

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KIM DECL. ISO APPLE’S MOTION FOR ADVERSE INFERENCE JURY INSTRUCTIONS DUE TO SPOLIATION
CASE NO. 11-CV-01846-LHK (PSG)
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Deponent

Date of deposition

No. of Emails

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Total No. of Custodial
Documents

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Attached hereto as Exhibit 2 is a true and correct copy of the document produced

by Samsung beginning with Bates number SAMNDCA00514571,

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. A true and correct

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copy of a certified translation is included.
KIM DECL. ISO APPLE’S MOTION FOR ADVERSE INFERENCE JURY INSTRUCTIONS DUE TO SPOLIATION
CASE NO. 11-CV-01846-LHK (PSG)
sf-3139313

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Minhyouk Lee

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Joon-Il Choi

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Attached hereto as Exhibit 3 is a true and correct copy of the document produced

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by Samsung beginning with Bates number SAMNDCA00513783,

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A true and
correct copy of a certified translation is included.
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Don-Joo Lee

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Attached hereto as Exhibit 4 is a true and correct copy of the document produced

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by Samsung beginning with Bates number SAMNDCA00515899,

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A true and correct copy of a translation is included.
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Attached hereto as Exhibit 5 is a true and correct copy of the document produced

by Samsung beginning with Bates number SAMNDCA00509359,
KIM DECL. ISO APPLE’S MOTION FOR ADVERSE INFERENCE JURY INSTRUCTIONS DUE TO SPOLIATION
CASE NO. 11-CV-01846-LHK (PSG)
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A true and correct copy of a translation is included.
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Ioi Lam

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KIM DECL. ISO APPLE’S MOTION FOR ADVERSE INFERENCE JURY INSTRUCTIONS DUE TO SPOLIATION
CASE NO. 11-CV-01846-LHK (PSG)
sf-3139313

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Samsung produced

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Attached hereto as Exhibit 6 is a true and correct copy of the document produced

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by Samsung beginning with Bates number SAMNDCA00229449,

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Attached hereto as Exhibit 7 is a true and correct copy of the document produced

by Samsung beginning with Bates number SAMNDCA00229399,

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A
true and correct copy of a translation is included.
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Dong Hoon Chang

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Attached hereto as Exhibit 8 is a chart that lists 14 key documents

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KIM DECL. ISO APPLE’S MOTION FOR ADVERSE INFERENCE JURY INSTRUCTIONS DUE TO SPOLIATION
CASE NO. 11-CV-01846-LHK (PSG)
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Nara Cho

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Wookyun Kho, Junho Park, Ahyoung Kim, Hyejung Lee, Oh Chae Kwon, and

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Mincheol Shin

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Samsung produced

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Attached hereto as Exhibit 9 is a true and correct copy of Samsung’s Second

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Supplemental and Amended Identification of Custodians, Litigation Hold Notices and Search

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Terms, dated February 26, 2012, and Exhibits A, C, D, E, G, I, J, K, and S thereto.

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Attached hereto as Exhibit 10 is a true and correct copy of excerpts from the

transcript of the deposition of Kyu Hyuk Lee taken on March 8, 2012.
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Attached hereto as Exhibit 11 is a true and correct copy of excerpts from the

transcript of the deposition of Kyu Hyuk Lee taken on February 10, 2012, in the ITC action.
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Attached hereto as Exhibit 12 is a true and correct copy of excerpts from the

transcript of the deposition of Joo Hyuk Kang on February 6, 2012, in the ITC action.
KIM DECL. ISO APPLE’S MOTION FOR ADVERSE INFERENCE JURY INSTRUCTIONS DUE TO SPOLIATION
CASE NO. 11-CV-01846-LHK (PSG)
sf-3139313

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Attached hereto as Exhibit 13 is a true and correct copy of excerpts from the

transcript of the deposition of Kang Hyun Lee on February 3, 2012, in the ITC action.
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Attached hereto as Exhibit 14 is a true and correct copy of excerpts from the

transcript of the deposition of Se-Hyun Cho on February 20, 2012, in the ITC action.
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Attached hereto as Exhibit 15 is a true and correct copy of excerpts from the

transcript of the deposition of Seongho Won on March 12, 2012, in the ITC action.
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Attached hereto as Exhibit 16 is a true and correct copy of excerpts from the

transcript of the deposition of Joon-Il Choi on March 20, 2012, in the ITC action.
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Attached hereto as Exhibit 17 is a true and correct copy of excerpts from the

transcript of the deposition of Kyu Hyung Lee on March 15, 2012, in the ITC action.
32.

Attached hereto as Exhibit 18 is a true and correct copy of excerpts from the

transcript of the deposition of Junho Park on January 14, 2012.
33.

Attached hereto as Exhibit 19 is a true and correct copy of excerpts from the

transcript of the deposition of WooUp Kwon on April 11, 2012, in the ITC action.
34.

Attached hereto as Exhibit 20 is a true and correct copy of excerpts from the

transcript of the deposition of Jaehwang Sim taken on March 31, 2012.
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Attached hereto as Exhibit 21 is a true and correct copy of excerpts from the

transcript of the deposition of Corey Kerstetter taken on March 29, 2012.
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Attached hereto as Exhibit 22 is a true and correct copy of excerpts from the

transcript of the deposition of Hyun Goo Woo taken on March 6, 2012.
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Attached hereto as Exhibit 23 is a true and correct copy of Exhibit 5 to the

deposition of Michael Finnegan taken on March 1, 2012, in the ITC action.
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Attached hereto as Exhibit 24 is a true and correct copy of the document produced

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by Samsung beginning with Bates number S-ITC-003006124, which is the Samsung Mobile

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Organizational Chart. A true and correct copy of a certified translation is included.

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39.

Attached hereto as Exhibit 25 is a true and correct copy of excerpts from the

transcript of the deposition of Wookyun Kho taken on January 12, 2012.

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KIM DECL. ISO APPLE’S MOTION FOR ADVERSE INFERENCE JURY INSTRUCTIONS DUE TO SPOLIATION
CASE NO. 11-CV-01846-LHK (PSG)
sf-3139313

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Attached hereto as Exhibit 26 is a true and correct copy of excerpts from the

transcript of the deposition of Junho Park taken on January 14, 2012.
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Attached hereto as Exhibit 27 is a true and correct copy of excerpts from the

transcript of the deposition of Ahyoung Kim taken on January 11, 2012.
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Attached hereto as Exhibit 28 is a true and correct copy of excerpts from the

transcript of the deposition of Hyejung Lee taken on March 28, 2012.
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Attached hereto as Exhibit 29 is a true and correct copy of excerpts from the

transcript of the deposition of Oh Chae Kwon taken on March 30, 2012.
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Attached hereto as Exhibit 30 is a true and correct copy of excerpts from the

transcript of the deposition of Mincheol Shin taken on January 12, 2012.
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Attached hereto as Exhibit 31 is a true and correct copy of excerpts from the

transcript of the deposition of Nara Cho taken on January 14, 2012.
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Attached hereto as Exhibit 32 is a true and correct copy of excerpts from the

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transcript of the hearing held on May 20, 2011, in Fractus v. Samsung Electronics Co., Ltd., No.

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6:09-cv-203-LED, in the Eastern District of Texas.

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47.

On July 11, 2011, Apple sent Samsung a letter to confirm that Samsung had steps

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to preserve evidence and fulfill its document preservation obligations. Attached hereto as

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Exhibit 33 is a true and correct copy of this letter. The letter raised Samsung’s prior difficulties

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with document preservation, i.e., Mosaid Techs., Inc. v. Samsung Elecs. Co., 348 F. Supp. 2d 332,

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336,340 (D.N.J. 2004) (sanctioning Samsung and related entities for destroying relevant

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electronic mail after lawsuit filed); Fractus, S.A. v. Samsung Elecs. Co., No. 09-cv-203 (E.D.

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Tex.) (trial transcript referring to Samsung's continued policy of deleting electronic mail every

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two weeks, even after lawsuit filed).

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Attached hereto as Exhibit 34 is a true and correct copy of the document produced

by Samsung beginning with Bates number SAMNDCA10247537,

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A true and correct copy of a
translation is included.

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KIM DECL. ISO APPLE’S MOTION FOR ADVERSE INFERENCE JURY INSTRUCTIONS DUE TO SPOLIATION
CASE NO. 11-CV-01846-LHK (PSG)
sf-3139313

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Attached hereto as Exhibit 35 is a true and correct copy of the document produced

by Samsung beginning with Bates number SAMNDCA10247373,

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A true and correct
copy of a certified translation is included.
I declare under penalty of perjury that the foregoing is true and correct. Executed
May 1, 2012, at San Francisco, California.
/s/ Esther Kim
Esther Kim

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KIM DECL. ISO APPLE’S MOTION FOR ADVERSE INFERENCE JURY INSTRUCTIONS DUE TO SPOLIATION
CASE NO. 11-CV-01846-LHK (PSG)
sf-3139313

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ATTESTATION OF E-FILED SIGNATURE
I, Harold J. McElhinny, am the ECF User whose ID and password are being used to file

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this Declaration. In compliance with General Order 45, X.B., I hereby attest that Esther Kim has

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concurred in this filing.

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Dated: May 1, 2012

/s/ Harold J. McElhinny
Harold J. McElhinny

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KIM DECL. ISO APPLE’S MOTION FOR ADVERSE INFERENCE JURY INSTRUCTIONS DUE TO SPOLIATION
CASE NO. 11-CV-01846-LHK (PSG)
sf-3139313

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