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

Filing 906

Declaration of Jason Bartlett In Support Of #759 Apples Petition For Attorneys Fees Pursuant To #880 The Courts April 23 Order filed by Apple Inc.. (Attachments: #1 Exhibit 1, #2 Exhibit 2)(Bartlett, Jason) (Filed on 5/7/2012) Modified on 5/9/2012 linking entry to document #759 and #880 (dhm, COURT STAFF).

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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]

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,

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Plaintiff,
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,

Case No. 11-cv-01846-LHK (PSG)
DECLARATION OF JASON
BARTLETT IN SUPPORT OF
APPLE’S PETITION FOR
ATTORNEYS’ FEES PURSUANT TO
THE COURT’S APRIL 23 ORDER

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Defendants.
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DECLARATION OF JASON BARTLETT ISO APPLE’S PETITION FOR ATTORNEYS’ FEES
CASE NO. 11-cv-01846-LHK (PSG)
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I, Jason Bartlett, declare as follows:

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I am a partner at Morrison & Foerster LLP, counsel for Apple Inc. (“Apple”) in this

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action. I make this declaration based on personal knowledge and could testify competently to the

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facts stated herein. On April 23, 2012, this Court granted in part Apple’s Motion for 37(b)(2)

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Sanctions, and it awarded Apple its “fees and expenses incurred in connection with Apple’s

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motion to compel that resulted in the December 22 Order.” (Dkt. No. 880 at 9 (“Sanctions

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Order”).) This Declaration details those fees.

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I.

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INTRODUCTION
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In December 2011, Apple filed a motion to compel because Samsung had failed to

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produce four key categories of documents: (1) source code and other technical documents

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showing the operation of the allegedly infringing product features; (2) design history documents,

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including CADs, sketchbooks, etc.; (3) e-mails and other documents showing Samsung’s analysis

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and consideration of Apple and Apple products; and (4) relevant survey and marketing

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documents. This motion resulted in the December 22 Order. (See Dkt. No. 537 (“December 22

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Order”).) The Court has awarded Apple its fees arising from Samsung’s failure to produce one of

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the four categories of documents. (Dkt. No. 880 at 9.) Based on time records of those individuals

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involved in developing the facts underlying and writing the motion, I and individuals working at

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my direction have identified the fees incurred in connection with obtaining the December 22

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Order. Apple requests that the Court award one-fourth of the fees associated with the

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December 22 motion as a reasonable apportionment of the total effort associated with the motion.

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II.

THE MOTION TO COMPEL THAT RESULTED IN THE DECEMBER 22
ORDER

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Eight attorneys were involved in assessing Samsung’s deficient production,

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researching the parties’ negotiation history, and subsequently preparing the motion that resulted
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in the December 22 Order: Richard Hung, Jason Bartlett, Mia Mazza, Minn Chung,
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Marcelo Guerra, Nate Sabri, Esther Kim and Euborn Chiu. Paralegal support for the filing was
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provided by Rosemary Barajas. Richard Hung, Jason Bartlett, and Michael Jacobs attended the
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hearing, and Michael Jacobs argued the motion.
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DECLARATION OF JASON BARTLETT ISO APPLE’S PETITION FOR ATTORNEYS’ FEES
CASE NO. 11-cv-01846-LHK (PSG)
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Starting in late November, a team of Morrison & Foerster attorneys began to

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analyze the various deficiencies in Samsung’s production. This analysis led to the preparation of

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the motion granted on December 22, 2011. I managed this work, with the assistance of

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Richard Hung. Mia Mazza and associate Marcelo Guerra were principally involved in analyzing

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Samsung’s deficient production and then preparing the motion to compel. Associates Nate Sabri,

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Esther Kim, and Euborn Chiu assisted with the analysis and drafting.

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4.

In all, approximately 196 attorney hours were spent analyzing the production and

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preparing and filing the motion, its two supporting declarations and 22 exhibits, and the ancillary

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motions to seal and to shorten time. Around 16 paralegal hours were spent on the filing. An

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additional 20 attorney hours were spent by Richard Hung, Michael Jacobs, and me to prepare and

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argue the motion at the hearing.

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5.

Total fees incurred by Apple in connection with the December 22 Order were

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$116,669. Apple therefore seeks recovery of one-fourth of these fees, or $29,167. Although

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Apple also incurred costs as a result of having to file its motion, no costs are included in this

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request.

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6.

Attached hereto as Exhibit 1 is a true and accurate chart prepared by individuals

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working under my direction that totals the hours worked by each of the above individuals in

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connection with the motion. The chart sets forth the total time spent on the motion, the total cost

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in fees incurred by Apple, and the average attorney billing rates charged.

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III.

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THE TOTAL AMOUNT OF TIME INCURRED IN CONNECTION WITH
THE DECEMBER 22 ORDER IS REASONABLE
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Considerable effort was required to develop and file the motion that led to the

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December 22 Order. Attorneys having specialized skill in reading and understanding technical

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and Korean language documents contributed to preparing the motion. Samsung also multiplied

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costs associated with the motion by making it impossible for Apple timely to complete the lead

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trial counsel meet-and-confer process. Apple was forced to prepare an extensive history of the

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parties’ meet-and-confer record and file a separate motion for administrative relief from the lead

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trial counsel meet and confer requirement. The Court subsequently found Apple’s motion for
DECLARATION OF JASON BARTLETT ISO APPLE’S PETITION FOR ATTORNEYS’ FEES
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administrative relief supported by “good cause.” Thus, although Apple is not seeking recovery of

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the time spent conferring with Samsung, the extra time spent on the motion for administrative

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relief (which was a necessary component of the motion to compel resulting in the December 22

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Order) reflects the extra burden put on Apple through Samsung’s failure to properly meet-and-

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confer.

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Apple also incurred significant costs associated with preparing and filing a

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separate motion to shorten time. Given Samsung’s long failure to comply with the September 28

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Order or to produce documents responsive to Apple’s requests, Apple needed relief immediately.

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If the motion had been delayed until after the end-of-year holidays, any subsequent order would

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have come too late to give Apple the relief it needed before the close of discovery on March 8.

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The Court granted Apple’s motion to shorten time.

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In addition, Apple was required to prepare a separate motion to seal portions of the

motion to compel which contained confidential information subject to protective order.

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10.

Apple incurred significant fees in addition to the fees detailed in this motion.

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Apple is not seeking reimbursement for the time of the Morrison & Foerster senior partners who

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reviewed and commented the motion.

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Apple is also not seeking reimbursement for many of the Korean-speaking

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attorneys who helped search Samsung’s production and prepare summaries relied upon to frame

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the motion to compel and supporting declarations. Although such fees were necessarily incurred,

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time records are such that I am unable to determine with reasonable precision how much effort

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was specifically directed to the motion at issue. Accordingly, the fees addressed in this

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declaration are limited to those associated with analyzing the information provided by document

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review attorneys and summarizing the deficiencies in the production in the briefing that led to the

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December 22 Order.

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IV.

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THE RATES CHARGED IN CONNECTION WITH THE DECEMBER 22
ORDER ARE CONSISTENT WITH PREVAILING INDUSTRY RATES
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The following section describes the attorneys and staff who contributed to

preparing, filing, and arguing the motion; it also discusses Morrison & Foerster’s rates and timeDECLARATION OF JASON BARTLETT ISO APPLE’S PETITION FOR ATTORNEYS’ FEES
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keeping practices for this litigation. The rates charged are comparable to the median rates

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reported in the American Intellectual Property Law Association (the “AIPLA”) Economic Survey

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Report. Based on publically available information, Morrison & Foerster’s rates are also

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comparable to the rates charged by Samsung’s own outside counsel.

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A.

Morrison & Foerster Attorneys

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Michael Jacobs. Michael Jacobs is the co-founder of the firm’s Intellectual

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Property Practice Group. Mr. Jacobs concentrates his practice on litigation of high-technology

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and intellectual property matters. He has represented information technology and life sciences

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companies in over 35 patent lawsuits. Mr. Jacobs has twice won the California Lawyer Attorneys

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of the Year (CLAY) award, one for his advocacy on behalf of Intel in the Intel v. Hamidi

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“trespass to chattels” case and this year for his defense of Novell in SCO v. Novell. Mr. Jacobs is

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co-lead counsel to Apple in this litigation. He argued the motion that led to the December 22

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Order.

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Richard Hung. Richard Hung has litigated a wide variety of complex technology

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matters for clients in state and federal trial and appellate courts. His patent litigation matters have

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spanned technologies such as internet search and advertising, digital rights management and

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encryption, programmable logic devices, electronic books, and anticancer therapeutics. Mr. Hung

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is responsible for overseeing many of the day-to-day aspects of this case, and he acted as a

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conduit for information between the team and the client in preparing the motion. Mr. Hung

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worked with Apple on finalizing the motion that led to the December 22 Order and hearing

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preparation.

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Jason Bartlett. I have represented international and domestic companies as both

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plaintiffs and defendants in matters involving information technology, wireless

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telecommunications standards, biotechnology, medical devices, computer hardware, and heavy

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industry. I am the former Co-Chair of Morrison & Foerster’s E-Discovery Task Force. Together

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with Ms. Mazza, I have co-managed Apple’s discovery efforts in this litigation and have helped

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draft Apple’s motions to compel, including the instant motion. I also assisted in preparations for

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the hearing on the motion.
DECLARATION OF JASON BARTLETT ISO APPLE’S PETITION FOR ATTORNEYS’ FEES
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Mia Mazza. Mia Mazza is the founder and current Chair of Morrison &

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Foerster’s E-Discovery Task Force. In this role she leads a team of Litigation partners that acts as

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an internal resource for all litigators in helping solve e-discovery challenges as they arise in

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practice. Ms. Mazza’s expertise in complex litigation and e-discovery has made her an essential

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member of this team. Ms. Mazza has co-managed Apple’s discovery efforts in this litigation and

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has helped draft Apple’s motions to compel where necessary. Ms. Mazza had primary

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responsibility for supervising the preparation of motion to compel that led to the December 22

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Order. Because Ms. Mazza had first-hand knowledge of the meet-and-confer issues related to the

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motion, she also took the lead on drafting the complicated administrative motion for relief from

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the lead trial counsel meet-and-confer requirement.
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Minn Chung. Minn Chung’s practice focuses on intellectual property litigation.

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Mr. Chung has represented a number of high-technology clients in multi-patent, multi-district,

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patent litigation matters involving wide-ranging areas of technology, including plasma display

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panels, CPU architecture, parallel processing computer technology, device drivers, and

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semiconductor memory devices. Mr. Chung’s technical and Korean-language skills have made

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him invaluable in supporting the discovery efforts in this litigation. Mr. Chung was involved in

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assessing the deficiencies in Samsung’s production, and he prepared one of the declarations

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supporting the motion.

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Marcelo Guerra. Marcelo Guerra has worked at Morrison & Foerster since

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graduating from Harvard Law School in 2004. His practice is focused on patent litigation.

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Mr. Guerra has worked on this case since the fall of 2011. He has taken a lead role in researching

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and drafting many of Apple’s briefs and coordinating discovery issues, including the motion at

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issue here.

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Nathan Sabri. Nathan Sabri is involved in a wide variety of intellectual property

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matters, with an emphasis on intellectual property litigation and counseling. He has experience

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litigating trademark and copyright infringement actions in federal court. Mr. Sabri helped

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research issues related to copying and design history documents; he also edited and revised the

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motion.
DECLARATION OF JASON BARTLETT ISO APPLE’S PETITION FOR ATTORNEYS’ FEES
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Esther Kim. Esther Kim has worked at Morrison & Foerster since graduating

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from George Washington Law School in 2008, where she was elected to the Order of the Coif.

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She has an undergraduate degree from Massachusetts Institute of Technology and a masters’

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degree from the University of California, Berkeley. Ms. Kim had overall responsibility for

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coordinating the work of Apple’s Korean-language review team. Ms. Kim helped edit and revise

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the motion based on her understanding of the deficiencies in Samsung’s production. Ms. Kim

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also helped prepare the detailed proposed order and the declarations in support of the motion.

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Euborn Chiu. Euborn Chiu is an associate in the San Francisco office of

Morrison & Foerster. Mr. Chiu’s expertise in electronics, software products, telecommunications

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devices, and computer systems makes him a key member of the team. In connection with the

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motion, Mr. Chiu performed discrete tasks in analyzing certain deficiencies in Samsung’s

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technical document production, and assisted with drafting.

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Rosemary Barajas. Rosemary Barajas is a senior paralegal in Morrison &

Foerster’s litigation department. Ms. Barajas helped prepare the motion for filing.

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B.

Comparable Rates

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Every other year, the American Intellectual Property Law Association (the

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“AIPLA”) produces an Economic Survey that reports on, among other things, individual billing

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rates for intellectual property services. I have reviewed the July 2011 edition of the AIPLA

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Economic Survey Report and compared the rates in it to the Exhibit showing the rates charged by

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Morrison & Foerster’s attorneys. The AIPLA Economic Survey indicates that the median billing

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rate for partners at private firms in the San Francisco Consolidated Metropolitan Statistical Area

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was $585 in 2010. For private law firms with 150 or more associates, the median rate for

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associates during the same time period was $390. The Survey does not indicate the assuredly

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higher rate for associates in the San Francisco Consolidated Metropolitan Statistical Area.

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As set forth in Exhibit 1, the median billing rate for partners and of counsel who

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worked on this motion is $582. The median rate for associates who worked on this motion is

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$398. These numbers are consistent with the numbers reported in the AIPLA Economic Survey.

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DECLARATION OF JASON BARTLETT ISO APPLE’S PETITION FOR ATTORNEYS’ FEES
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Morrison & Foerster’s rates are comparable to the rates charged by Samsung’s

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counsel, Quinn Emanuel Urquart & Hedges LLP. A bankruptcy court filing shows that in 2009,

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“hourly rates for partners and of counsel of Quinn Emanuel range from $970 to $580,” and

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“hourly rates for U.S. associates range from $390 to $820.” (Decl. of Andrew J. Rossman ISO

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Debtors’ Appl. for Oder Pursuant to 11 U.S.C. §§ 327(e) and 328(a) Approving the Emp.,

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Retention, & Subst. of Quinn Emanuel Urquhart Oliver & Hedges as Special Litig. Counsel ¶ 17,

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In re G-I Holdings Inc., Case Nos 01-30135 and 01-38790 (Bankr. D. N.J. Nov. 19, 2009).) A

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true and correct copy of this filing, which includes additional details concerning Quinn Emanuel’s

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rates, is attached hereto as Exhibit 2.

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Morrison & Foerster’s fees for its paralegals are also comparable to those charged

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in the community for similarly-skilled professionals. The rate charged for Ms. Barajas’s work

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was significantly less than the lowest rate Quinn charged for paralegals in 2009. (See id.)

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C.
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Time-Keeping In Relation to the Motion

Morrison & Foerster attorneys track time billed to Apple based on individual tasks.

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This has made it possible to isolate efforts spent developing and drafting the motion which led to

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the December 22 Order.

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I declare under penalty of perjury that the foregoing is true and correct. Executed this 7th
day of May, 2012, at San Francisco, California.
/s/ Jason Bartlett
Jason Bartlett

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DECLARATION OF JASON BARTLETT ISO APPLE’S PETITION FOR ATTORNEYS’ FEES
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