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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Exhibit 32 Case 6:09-cv-00203-LED-JDL Document 1020 Filed 06/10/11 Page 1 of 123 PageID #: 30452 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION 2 3 FRACTUS 4 VS. 5 SAMSUNG ELECTRONICS, CO., LTD., 6 ET AL 7 8 * * * * * * * Civil Docket No. 6:09-CV-203 Tyler, Texas May 20, 2011 8:30 A.M. TRANSCRIPT OF JURY TRIAL BEFORE THE HONORABLE LEONARD DAVIS UNITED STATES DISTRICT JUDGE 9 APPEARANCES: 10 FOR THE PLAINTIFFS: 11 12 MR. MAX TRIBBLE, JR. Susman Godfrey 1000 Louisiana Street Suite 5100 Houston, TX 77002 MR. MICHAEL HEIM MR. LESLIE PAYNE Heim Payne & Chorush 600 Travis St., Suite 6710 Houston, TX 77002 13 14 15 MR. JUSTIN NELSON MS. GENEVIEVE VOSE Susman Godfrey 1201 Third Avenue Suite 3800 Seattle, WA 98101 16 17 18 19 20 APPEARANCES CONTINUED ON NEXT PAGE: 21 COURT REPORTERS: 22 23 24 MS. SUSAN SIMMONS, CSR MS. JUDITH WERLINGER, CSR Official Court Reporter 100 East Houston, Suite 125 Marshall, TX 75670 903/935-3868 25 (Proceedings recorded by mechanical stenography, transcript produced on CAT system.) 1 Case 6:09-cv-00203-LED-JDL Document 1020 Filed 06/10/11 Page 106 of 123 PageID #: 30557 106 1 Was Samsung aware in 2006, while it was still doing 2 business with Fractus, that Fractus was already building 3 this nice jury story of infringement of the multilevel 4 patent? 5 A. This is the first time that I'm hearing it. 6 Q. And that is a Samsung phone that's contained 7 on Exhibit 172; is that correct? 8 A. Yes, it is. 9 Q. And at that time, Fractus and Samsung were 10 still doing business together? 11 A. Yes. 12 Q. And never told you that they were -- had it in 13 mind all along to sue us three years later? 14 A. That's right. We never heard anything like 15 that. 16 MR. BARTA: Pass the witness. 17 THE COURT: All right. Cross-exam. CROSS-EXAMINATION 18 19 BY MR. NELSON: 20 Q. Good afternoon, Mr. Kim -- or good morning 21 still. 22 A. Yes. 23 Q. You understand that once a lawsuit has been 24 filed, every party has an obligation to preserve 25 relevant documents, correct? Case 6:09-cv-00203-LED-JDL Document 1020 Filed 06/10/11 Page 107 of 123 PageID #: 30558 107 1 A. Yes, I do. 2 Q. Your e-mails continued to delete after 14 days 3 even after this lawsuit was filed and after we had given 4 notice about you personally to Samsung, correct? 5 A. Well, system-wise. It is system-wise. The 6 system itself would -- is such way that it -- those were 7 deleted within 14 days, unless there's a request to 8 preserve these documents. And if these documents are 9 documents that are considered to be important, and those 10 would be preserved, though. MR. NELSON: 11 First of all, could you 12 please tell the witness, if he can answer my question 13 yes or no, we have very limited time, so I would 14 appreciate yes or no answers, if he can. 15 A. Yes. 16 Q. (By Mr. Nelson) The answer is: Yes, your 17 e-mails continued to be destroyed after 14 days even 18 after we let Samsung know about you personally, correct? 19 A. No. 20 MR. NELSON: Could we bring up the 21 JungMin Ro deposition, Page 61, Line 22? 22 Q. (By Mr. Nelson) This was a corporate testimony 23 from Samsung. She stated: For the custodians listed, 24 has the automatic deletion function in mySingle been 25 suspended? Case 6:09-cv-00203-LED-JDL Document 1020 Filed 06/10/11 Page 108 of 123 PageID #: 30559 108 1 ANSWER: No. 2 Is that correct, or was she not telling the 3 truth? 4 A. Yes. 5 Q. Thank you. 6 That's the way she answered it. It's also true, Mr. Kim, that when a Samsung 7 employee changes computers, that computer is wiped 8 clean, correct? 9 A. Well, yes. 10 Q. Do you know -MR. NELSON: 11 Well, let's bring up 12 Plaintiff's Exhibit 114, please. 13 first page there. 14 Yeah. And let's go -- on the Jae-Ki Jung. Q. (By Mr. Nelson) Mr. Kim, do you know Jae-Ki A. I don't know this person very well. 15 Jung? 16 17 MR. NELSON: 18 page, please. Next page. If we go to the following Next page. Blow up the date, 19 please. 20 Q. (By Mr. Nelson) This is an offer and 21 acceptance of Fractus antennas, and it was accepted by 22 Mr. Jae-Ki Jung, correct? 23 A. MR. NELSON: 24 25 Yes, that's right. Q. Next page, please. (By Mr. Nelson) And at the bottom, it states

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