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

Filing 974

Declaration of Cyndi Wheeler in Support of #934 Administrative Motion to File Under Seal Re Samsungs Motion To Strike Expert Testimony filed byApple Inc.. (Attachments: #1 Exhibit 1, #2 Exhibit 2, #3 Exhibit 3, #4 Exhibit 4, #5 Exhibit 5, #6 Exhibit 6, #7 Exhibit 7, #8 Exhibit 8, #9 Exhibit 9, #10 Exhibit 10, #11 Exhibit 11, #12 Exhibit 12, #13 Declaration Of Mark D. Selwyn In Support Of Samsungs Administrative Motion To File Documents Under Seal Re Samsungs Motion To Strike Expert Testimony, #14 Selwyn Decl. Ex. 1, #15 Selwyn Decl. Ex. 2, #16 Proposed Order [Proposed] Order Granting Samsungs Administrative Motion To File Documents Under Seal Re Samsungs Motion To Strike Expert Testimony)(Related document(s) #934 ) (Bartlett, Jason) (Filed on 5/24/2012)

Exhibit 11

EXHIBIT T
FILED UNDER SEAL

quinn emanuel

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May 11, 2012
VIA ELECTRONIC MAIL
Peter J. Kolovos, Esq.
WilmerHale
60 State Street
Boston, Massachusetts 02109
Re:

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

Dear Peter,
I write in response to Apple’s May 9, 2012 production of three patent licenses, over two months
after the February 23 deposition of Mark Buckley—Apple's Rule 30(b)(6) designee on licensing
issues—and the March 8 close of discovery, six weeks after Samsung served the Expert Report
of Vincent O’Brien, and over two weeks after the deposition of Dr. O’Brien. Apple’s repeated,
belated productions of inconsistent and misleading licensing information has significantly
impaired Samsung’s discovery efforts and interfered with its experts' efforts to analyze the
parties’ damages claims.
Apple’s May 9 production proves, once again, that Apple has failed to make a full production of
documents relating to patent licenses concerning the Accused Products.

quinn emanuel urquhart & sullivan, llp
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On March 13, 2012, Apple purported to claw back all prior versions of the licensing charts,
claiming privilege and third-party confidentiality, further obstructing the analysis of Samsung's
experts. Although Apple produced another series of replacement charts on March 15, 2012, it
clawed them back the evening of March 21, 2012—the night before opening expert reports were
due—and produced yet another series of replacement charts. Then, Apple clawed back the
March 21 charts and produced yet another series of licensing charts on April 11, 2012, Bates
numbered APLNDC-Y0000236371, three weeks after Samsung served its opening expert report
on damages. That same day Apple served, for the first time, a privilege log for the clawed back
licensing charts.1

Dr. O'Brien's concerns are well-founded. Apple has deprived Samsung of any means to test its
methodology and representations by its untimely productions and dubious redactions.

To this day, Apple's production of licensing agreements remains incomplete.

1

Notably, the privilege log and accompanying letter purport to claw back APLNDCY0000232449-2454, but concedes that it is not protected by any privilege and therefore by
Apple's own admission is not covered by the Protective Order's clawback provisions. The only
basis Apple offers for purporting to "claw back" APLNDC-Y0000232449-2454 is to "avoid
confusion," which is not a basis to withdraw documents. Accordingly, Samsung does not
recognize this document as clawed back.

2

Even more troubling than the missing licenses referenced by Mr. Musika is Apple’s effort to
conceal feature patent licensing agreements with a non-practicing entity, Digitude Innovations.
According to numerous media accounts, Apple entered into patent licensing agreements with
Cliff Island LLC and/or Digitude Innovations, transferring up to a dozen patents to it.2 This
includes at least two patents related to the accused products, USPTO #6208879 (Mobile
Information Terminal Equipment and Portable Electronic Apparatus) and USPTO #6456841
(Mobile Communication Apparatus Notifying User Of Reproduction Waiting Information
Effectively). These patents appear to be potentially relevant to, among other things, a
determination of a reasonable royalty rate for Apple's infringement of Samsung's feature patents.

2

“Apple Made A Deal With The Devil (No, Worse: A Patent Troll)”, accessed on May
10, 2012 at http://techcrunch.com/2011/12/09/apple-made-a-deal-with-the-devil-no-worse-apatent-troll/; “Apple partners with patent troll Digitude Innovations — and wow, what a deal”,
accessed on May 10, 2012, at http://venturebeat.com/2011/12/10/apples-patents-digitudeinnovations/.

3

Apple's delays and obfuscations must end. Apple should, by 5:00 p.m., Tuesday, May 14, 2012,
do the following:
(1)

Produce the documents identified as AppDel0000121 and AppDel0158967 in Mr.
Musika’s Rebuttal Report.

(2)

(4)

Produce all patent licenses related to the Accused Products.

(5)

Identify by Bates number, party, and date, all patent licensing agreements Apple
has produced in this matter.

Samsung reserves its rights to move to preclude Apple from relying on its belated, incomplete,
contradicting and misleading production of licensing information.
Kind Regards,
/s/ Diane C. Hutnyan
Diane C. Hutnyan
02198.51855/4745726.2

4