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 8

EXHIBIT E
FILED UNDER SEAL

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March 13, 2012
VIA ELECTRONIC MAIL
Jason Bartlett
Morrison & Foerster
425 Market Street
San Francisco, CA 94105-2482
Re:

Mia Mazza
Morrison & Foerster
425 Market Street
San Francisco, CA 94105-2482

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

Dear Jason and Mia,
Apple’s late or non-existent production of documents and other relevant materials has been
deficient to the point that it has thwarted Samsung's ability to get full and fair discovery through
depositions.
Design Depositions
For the vast majority of the Apple design inventors, their custodial document productions were
not produced until well after the date of the deposition. Additionally, Apple waited until midJanuary to make available for inspection over
models and parts that bear directly on the
conception and reduction to practice of Apple’s designs. Apple also waited until mid-November
to finally stipulate that the 035 model was the one depicted in the D889 file history, and CAD
files of the 035 model were not produced for yet another month, after all of the inventor
depositions had transpired.
Furthermore, many of Apple’s custodial document productions pertaining to certain design
witnesses are woefully deficient. For example, Apple has yet to produce several document
productions for key custodians, namely, Steve Jobs, the Human Interface Server, and a
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significant portion of Apple’s product design and reliability groups. Additionally, the
depositions of Douglas Satzger, Freddy Anzures, Jonathan Ive, Richard Dinh, and Scott Forstall
indicated that many documents relevant to functionality have yet to be produced, documents that
Samsung has already requested the production of in prior correspondence. As a result, Samsung
proposes that the depositions of at least the following witnesses be re-opened for a total of 30
hours:
Inventors

Other Design Witnesses

Bart Andre
Christopher Stringer
Daniel Coster
Daniele de Iullis
Duncan Kerr
Eugene Whang
Freddy Anzures
Imran Chaudhri (also a utility inventor)
Jonathan Ive
Matt Rohrbach
Peter Russell-Clarke
Richard Howarth
Rico Zorkendorfer

Achim Pantfoerder
Chris Harris
Chris Hood
Christopher Prest
Cooper Woodring
Fletcher Rothkopf
John Ternus
Mark Lee
Phil Hobson
Quin Hoellwarth
Richard Dinh
Steven Zadesky
Tang Tan

Utility Depositions
Apple continues to supplement its interrogatory responses regarding the conception and
reduction to practice dates of its utility patents, as noted in Samsung’s March 10, 2012 letter
requesting the re-opening of all inventor depositions affected by Apple’s amended responses.
Additionally, for the vast majority of the Apple utility inventors, their custodial document
productions were not produced until well after the date of the deposition. Furthermore, Apple
has yet to produce relevant materials from related proceedings, the production of which Samsung
recently moved to compel. As a result, Samsung proposes that the depositions of at least the
following witnesses be re-opened for a total of 30 hours:
Inventors

Marcel Van Os
Richard Williamson
Scott Forstall
Scott Herz
Steven Hotelling
Stephen Lemay
Steven Christensen
Wayne Westerman

Andre Boule
Andrew Platzer
Bas Ording
Brian Huppi
Brian Land
Chris Blumenberg
Greg Christie
John Elias
Joshua Strickon

Other Utility Witnesses
Myra Haggerty

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Nitin Ganatra

Ravin Balakrishnan

Samsung also reserves the right to depose Kelly Altick, who Samsung withdrew, in light of her
late production.
Additionally, Samsung proposes that the depositions of Richard Lutton and B.J. Watrous be reopened for a total of 14 hours in light of the significant volume of documents produced after
Lutton’s deposition and the fact that Watrous produced zero documents.
In Judge Grewal’s March 8th order, which permitted Apple to re-open the depositions of up to
10 Samsung witnesses for whom Korean-language documents were produced close in time to the
witnesses’ depositions for a total of 25 hours, he noted that “[t]o the extent that Samsung is
attempting to pursue a non-judicial remedy from Apple before consuming the court’s time, the
court strongly encourages Apple to extend the same opportunity to Samsung in those instances in
which Apple has produced a substantial volume of documents shortly before, or after, a
deposition.” (Dkt. No. 788 at fn. 18). At a minimum, therefore, Apple should agree to re-open

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the depositions of at least 10 witnesses of Samsung’s choosing. Given that Apple produced
documents in many instances AFTER the relevant deposition (and as recently as March 9th, after
the discovery cutoff as well), the additional 25 hours should not count against Samsung’s 250hour deposition limit.
Moreover, in light of Apple’s further discovery misconduct, including its ever-shifting of
conception dates and other Apple discovery failures, Samsung believes that it is entitled to the
full relief outlined in this letter. Samsung additionally reserves the right to seek additional
deposition time for the aforementioned witnesses regarding any relevant materials that have not
yet been produced. If Apple refuses to do so, please be prepared to discuss these issues at the
next lead counsel meet and confer. I look forward to hearing from you.
Kind regards,
/s/ Diane C. Hutnyan
Diane C. Hutnyan
cc:

Peter Kolovos
S. Calvin Walden

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