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)

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Exhibit 11 EXHIBIT T FILED UNDER SEAL quinn emanuel trial lawyers | los angeles 865 South Figueroa Street, 10th Floor, Los Angeles, California 90017-2543 | TEL: (213) 443-3000 FAX: (213) 443-3100 WRITER'S DIRECT DIAL NO. (213) 443-3666 WRITER'S INTERNET ADDRESS 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 NEW YORK | 51 Madison Avenue, 22nd Floor, New York, New York 10010-1601 | TEL (212) 849-7000 FAX (212) 849-7100 California Street, 22nd Floor, San Francisco, California 94111-4788 | TEL (415) 875-6600 FAX (415) 875-6700 SILICON VALLEY | 555 Twin Dolphin Drive, 5th Floor, Redwood Shores, California 94065-2139 | TEL (650) 801-5000 FAX (650) 801-5100 CHICAGO | 500 W. Madison Street, Suite 2450, Chicago, Illinois 60661-2510 | TEL (312) 705-7400 FAX (312) 705-7401 SAN FRANCISCO | 50 WASHINGTON, DC | 1299 Pennsylvania Avenue NW, Suite 825, Washington, District of Columbia 20004-2400 | TEL (202) 538-8000 FAX (202) 538-8100 Old Bailey, London EC4M 7EG, United Kingdom | TEL +44(0) 20 7653 2000 FAX +44(0) 20 7653 2100 TOKYO | NBF Hibiya Building, 25F, 1-1-7, Uchisaiwai-cho, Chiyoda-ku, Tokyo 100-0011, Japan | TEL +81 3 5510 1711 FAX +81 3 5510 1712 MANNHEIM | Mollstraße 42, 68165 Mannheim, Germany | TEL +49(0) 621 43298 6000 FAX +49(0) 621 43298 6100 MOSCOW | Voentorg Building, 3rd Floor, 10 Vozdvizhenka Street, Moscow 125009, Russia | TEL +7 495 797 3666 FAX +7 495 797 3667 LONDON | 16 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; “Apple partners with patent troll Digitude Innovations — and wow, what a deal”, accessed on May 10, 2012, at 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

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