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

Filing 899

MOTION for Extension of Time to File Response/Reply as to #895 Administrative Motion to File Under Seal filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC(a Delaware limited liability company). (Attachments: #1 Proposed Order Granting Motion to Extend Time, #2 Declaration of Sara Jenkins in Support of Motion to Extend Time, #3 Exhibit 1 to the Declaration of Sara Jenkins)(Maroulis, Victoria) (Filed on 5/7/2012)

1 QUINN EMANUEL URQUHART & SULLIVAN, LLP
Charles K. Verhoeven (Bar No. 170151)
2 [e-mail]
50 California Street, 22nd Floor
3 San Francisco, California 94111
Telephone: [phone]
4 Facsimile: [phone]
5 Kevin P.B. Johnson (Bar No. 177129)
[e-mail]
6 Victoria F. Maroulis (Bar No. 202603)
[e-mail]
th
7 555 Twin Dolphin Drive, 5 Floor
Redwood Shores, California 94065-2139
[phone]
8 Telephone:
Facsimile:
[phone]
9
10 Michael T. Zeller (Bar No. 196417)
[e-mail]
11 865 S. Figueroa St., 10th Floor
Los Angeles, California 90017
12 Telephone: [phone]
Facsimile: [phone]
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14 Attorneys for SAMSUNG ELECTRONICS CO.,
LTD., SAMSUNG ELECTRONICS AMERICA,
15 INC. and SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION

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APPLE INC., a California corporation,

CASE NO. 11-cv-01846-LHK (PSG)

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

DECLARATION OF SARA JENKINS IN
SUPPORT OF SAMSUNG’S MOTION TO
ENLARGE TIME FOR BRIEFING AND
HEARING
Date:
Time: 10:00 a.m.
Place: Courtroom 5, 4th Floor
Judge: Hon. Paul S. Grewal

Plaintiff,
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vs.

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Defendants.

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Case No. 11-cv-01846-LHK (PSG)
JENKINS DECLARATION

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DECLARATION OF SARA JENKINS
I, Sara Jenkins, declare as follows:

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I am a member of the bar of the State of California and an associate with Quinn

4 Emanuel Urquhart & Sullivan LLP, attorneys for Samsung Electronics Co., Ltd., Samsung
5 Electronics America, Inc., and Samsung Telecommunications America, LLC (“Samsung”). I
6 make this declaration of personal, firsthand knowledge, and if called and sworn as a witness, I
7 could and would testify competently thereto.
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2.

On May 1, 2012, Apple, Inc. (“Apple”) filed with District Judge Lucy H. Koh its

9 Motion for Adverse Inference Jury Instructions based on Samsung’s alleged spoliation of
10 evidence. (Dkt. 895.) Under Civil Local Rule 7-3, Samsung’s Opposition is due on May 15, 2012
11 and Apple’s Reply is due on May 22, 2012. The hearing was originally scheduled for June 7,
12 2012.
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3.

During the parties’ case management conference on May 2, 2012, District Judge

14 Koh referred the Motion to this Court. Apple has not re-noticed the Motion for a different date
15 based on the court’s availability or responded to Samsung’s multiple requests to try and stipulate
16 to an appropriate briefing and hearing schedule, as discussed infra.
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4.

Samsung requests an enlargement of time in order to adequately respond to Apple’s

18 serious allegations. Samsung proposes that its Opposition be due on May 29, 2012, Apple’s Reply
19 be due on June 5, 2012, and the hearing be scheduled for July 10, 2012, or as soon thereafter as
20 possible.
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5.

Over the next two weeks, Samsung’s counsel will take and defend on-going expert

22 depositions, prepare and file pre-trial motions both in this case as well as a related action before
23 the International Trade Commission (“ITC”), participate in a court-ordered mediation session with
24 Apple, and prepare for a hearing in the ITC action. Samsung’s counsel will be in hearing for the
25 ITC action between May 30 and June 16 in Washington, DC.
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6.

Responding to Apple’s Motion requires the review of thousands of pages of

27 documents, and of voluminous deposition testimony relating to not only each of the custodians at
28 issue, but also to Samsung’s practices as it relates to the preservation of documents. Samsung also
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Case No. 11-cv-01846-LHK (PSG)
JENKINS DECLARATION

1 has to consider the potential retention of experts and the application of the standards applicable to
2 preservation of documents pursuant to Korean law.
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7.

Samsung has attempted, but has not been able to obtain a stipulation from Apple to

4 change time. On May 2, 2012, my colleague Victoria Maroulis wrote to Apple’s counsel with a
5 request that the briefing schedule for this Motion be aligned with the briefing schedules for the
6 parties’ motions to strike. Samsung requested that the hearing for all the motions be scheduled for
7 July 10. A true and correct copy of the entire e-mail chain between Ms. Maroulis and counsel for
8 Apple, described in paragraphs 7-11, is attached as Exhibit 1.
9

8.

On May 3, 2012, Apple’s counsel responded and stated that it could not accept

10 Samsung’s proposed schedule, but did not offer to compromise on the briefing or hearing schedule
11 for this Motion. Instead, Apple simply stated that Samsung’s Opposition is due on May 15, 2012.
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9.

On May 4, 2012, Victoria Maroulis once again wrote to Apple’s counsel requesting

13 a stipulation to enlarge time.
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10.

Apple’s counsel did not accept Samsung’s offer or propose a different briefing

15 schedule. Instead, Apple’s counsel inquired about Samsung’s Opposition to Apple’s Motion for
16 Spoliation Sanctions in the ITC action and suggested that Samsung did not need any additional
17 time to file its Opposition since it filed an Opposition in the ITC action last week.
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11.

Victoria Maroulis responded on the same day, explaining that Apple sought

19 different remedies and once again asking for a counter-proposal. Counsel for Apple has not
20 responded since.
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12.

While Samsung filed its Opposition to Apple’s Motion for Spoliation Sanctions in

22 the ITC action last week, that Opposition does not mirror Samsung’s response here. In addition to
23 the fact that Apple seeks different remedies, the patents at issue are different, and Apple’s
24 allegations here involve different custodians. Moreover, Samsung’s obligation to preserve
25 evidence in this case arose at a different time than in the ITC action.
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13.

Upon receiving Apple’s Motion after business hours on May 1, 2012, Samsung

27 assigned all available resources, including assigning a number of attorneys who had not previously
28 worked on the case, to the task of preparing the Opposition.
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Case No. 11-cv-01846-LHK (PSG)
JENKINS DECLARATION

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14.

Samsung will suffer substantial prejudice if it does not receive additional time. The

2 sanctions Apple seeks would potentially alter the presentation of evidence to the jury and severely
3 impact Samsung’s ability to defend itself at trial.
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15.

The parties have requested, and the court has granted, numerous time modifications

5 in this case. Most recently, on March 1, 2012, the court ordered a modification to the briefing
6 schedules related to Apple’s Motion to Compel the depositions of Samsung’s apex witnesses and
7 Samsung’s parallel Motion for a Protective Order.
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16.

The time enlargement sought here will not have an impact on the schedule for the

9 case. The sanctions Apple seeks relate to instructions that will be given to the jury at the end of
10 the trial.
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12 Date: May 7, 2012

/s/ Sara Jenkins
Sara Jenkins

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Case No. 11-cv-01846-LHK (PSG)
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GENERAL ORDER ATTESTATION
I, Victoria F. Maroulis, am the ECF user whose ID and password are being used to file the

3 foregoing CERTIFICATE OF SERVICE. In compliance with General Order 45 (X)(B), I
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hereby attest that Sara Jenkins has concurred in this filing.

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6 DATE: May 7, 2012

/s/ Victoria Maroulis

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Case No. 11-cv-01846-LHK (PSG)
JENKINS DECLARATION