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 12

EXHIBIT X
FILED UNDER SEAL

SUBJECT TO PROTECTIVE ORDER
CONTAINS ATTORNEYS’ EYES ONLY INFORMATION
May 15, 2012
Via Electronic Mail
Diane C. Hutnyan, Esq.
Quinn Emanuel Urquhart & Sullivan, LLP
865 South Figueroa Street, 10th Floor
Los Angeles, CA 90017
Re:

Apple Inc. v. Samsung Electronics Co. Ltd. et al.,
Case No. 11-cv-01856-LHK (N.D. Cal.)

Dear Diane:
I write in response to your May 11 letter and to the portion of Victoria Maroulis’ April 29 letter
to Marc Pernick that concerns Apple’s production of licenses and royalty reports.
Samsung’s claim that Apple’s production of licenses and royalty reports is inadequate is
unsupported and incorrect. With respect to royalty spreadsheets, Apple produced several
versions of the royalty spreadsheet in order to provide Samsung with up-to-date information
regarding royalty payments for iPhone, iPad, and iPod products at the level of detail requested by
Samsung. When Apple discovered that it had inadvertently produced information protected by
the attorney-client privilege and work product doctrine, it clawed back certain versions of the
royalty spreadsheet, consistent with the terms of the Protective Order. Apple explained the basis
for the clawback of the earlier royalty spreadsheets and redactions in writing, including in its
March 21, 2012 letter and April 12, 2012 e-mail, as well as in the April 11, 2012 Royalties
Spreadsheet Privilege Log. All redactions were based on privilege and work product. Dr.
O’Brien’s contentions that redactions were based on relevance is unsupported and incorrect.
With respect to production of patent licenses, as explained, Apple has searched for and produced
patent license agreements related to the accused iPhone, iPad, and iPod Touch products,
including licenses related to patents at issue, patents declared essential to the standards at issue,
and patent licenses identified in the royalty report for iPhone, iPad and iPod.

Diane C. Hutnyan, Esq.
May 15, 2012
Page 2

Further, Samsung’s complaints about Apple’s production of licenses is curious, given the relative
paucity of Samsung’s production in this regard. Samsung has never confirmed that it searched
for or produced licenses which may be comparable to a license for any of the patents in suit.
Samsung’s own expert, Dr. O’Brien, stated that such licenses would be relevant to an expert’s
analysis; although he admitted that he had not reviewed such licenses, nor did he ask Samsung
for such licenses to review. (O’Brien Tr. 178:2-179:23 (“ . . . I'm afraid I would say both parties
ought to produce everything. . . . I would prefer both sides produce as many as they can and
maybe overproduce licenses.”)).

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Diane C. Hutnyan, Esq.
May 15, 2012
Page 3

AppDel Bates
Number Range

ITC or N.D. Cal. Bates
Number Range

AppDel0000021 AppDel0000037

APL-ITC796-0000334590 APL-ITC796-0000334606

AppDel0000121 AppDel000155

APLNDC-WH0000454878 APLNDC-WH0000454912

AppDel0073610 AppDel0073648

APLNDC-WH0000455054 APLNDC-WH0000455092

AppDel0158881 AppDel0158905

APL794-N0000005799 APL794-N0000005823

AppDel0158967 AppDel0159005

APL-ITC796-0000010041 APL-ITC796-0000010079

AppDel0158906 AppDel0158943

Title of Document

APLNDC-WH0000726437APLNDC-WH0000726474

Samsung further complains that even if Apple has properly withheld its non-patent licenses,
“Apple has deprived Samsung of any means to test its methodology and representations by its
untimely productions and dubious redactions.” Apple has fully explained that it has produced
patent licenses identified in the final royalty spreadsheets and has not produced non-patent
licenses. Samsung is not entitled under the rules to “test [Apple’s] methodology and
representations” and further has provided no good reason for doing so. Further, Samsung
exaggerates the significance of any delayed production of additional patent licenses, as none of
these licenses are comparable to the patents at issue.

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Diane C. Hutnyan, Esq.
May 15, 2012
Page 4

hus, Samsung’s assertion in the April 29 letter that it will seek exclusion
of the reasonable royalty opinions of Apple’s experts is without basis or merit.
Very truly yours
/s/ Peter J. Kolovos
Peter J. Kolovos

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