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

Filing 987

Administrative Motion to File Under Seal filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC(a Delaware limited liability company). (Attachments: #1 Proposed Order Granting Motion to Seal, #2 Declaration of Daniel Shim in Support of Motion to Seal, #3 Samsung's Opposition to Apple's Motion for Adverse Inference Jury Instructions, #4 Declaration of Thomas Watson, #5 Exhibit 1 to Watson, #6 Exhibit 2 to Watson, #7 Exhibit 3 to Watson, #8 Exhibit 4 to Watson, #9 Exhibit 5 to Watson, #10 Exhibit 6 to Watson, #11 Exhibit 7 to Watson, #12 Exhibit 8 to Watson, #13 Exhibit 9 to Watson, #14 Exhibit 10 to Watson, #15 Exhibit 11 to Watson, #16 Exhibit 12 to Watson, #17 Exhibit 13 to Watson, #18 Exhibit 14 to Watson, #19 Exhibit 15 to Watson, #20 Exhibit 16 to Watson, #21 Exhibit 17 to Watson, #22 Exhibit 18 to Watson, #23 Exhibit 19 to Watson, #24 Exhibit 20 to Watson, #25 Exhibit 21 to Watson, #26 Exhibit 22 to Watson, #27 Exhibit 23 to Watson, #28 Exhibit 24 to Watson, #29 Exhibit 25 to Watson, #30 Exhibit 26 to Watson, #31 Exhibit 27 to Watson, #32 Exhibit 28 to Watson, #33 Exhibit 29 to Watson, #34 Exhibit 30 to Watson, #35 Exhibit 31 to Watson, #36 Exhibit 32 to Watson, #37 Exhibit 33 to Watson, #38 Declaration of Sara Jenkins, #39 Declaration of Alex Binder, #40 Exhibit 1 to Binder, #41 Exhibit 2 to Binder, #42 Exhibit 3 to Binder, #43 Exhibit 4 to Binder, #44 Declaration of Hankil Kang, #45 Declaration of Don Joo Lee, #46 Declaration of Giho Ro, #47 Declaration of Han-Yeol Ryu, #48 Declaration of Heontae Son, #49 Declaration of Ioi Lam, #50 Declaration of Jong Dae Park, #51 Declaration of Joo Hyuk Kang, #52 Declaration of Kang Hyun Lee, #53 Declaration of Min Cheol Shin, #54 Declaration of Minhyouk Lee, #55 Declaration of Nara Cho, #56 Declaration of Se-Hyun Cho, #57 Declaration of Sungsik Lee, #58 Declaration of Won Pyo Hong, #59 Declaration of Wooup Kwon, #60 Declaration of Young-jo Lim, #61 Declaration of YoungSoon Lee, #62 Declaration of Kyu Hyuk Lee, #63 Declaration of Michael Finnegan, #64 Declaration of Byungil Kim, #65 Declaration of M. James Daley, #66 Declaration of Raymond Warren, #67 Proposed Order Denying Apple's Motion for Adverse Inference Jury Instructions)(Maroulis, Victoria) (Filed on 5/29/2012)

1 QUINN EMANUEL URQUHART & SULLIVAN, LLP
Charles K. Verhoeven (Cal. Bar No. 170151)
2 [e-mail]
50 California Street, 22nd Floor
3 San Francisco, California 94111
Telephone: [phone]
4 Facsimile: [phone]
5 Kevin P.B. Johnson (Cal. Bar No. 177129)
[e-mail]
6 Victoria F. Maroulis (Cal. Bar No. 202603)
[e-mail]
th
7 555 Twin Dolphin Drive 5 Floor
Redwood Shores, California 94065
8 Telephone: [phone]
Facsimile: [phone]
9
Michael T. Zeller (Cal. Bar No. 196417)
10 [e-mail]
865 S. Figueroa St., 10th Floor
11 Los Angeles, California 90017
Telephone: [phone]
12 Facsimile: [phone]
13 Attorneys for SAMSUNG ELECTRONICS
CO., LTD., SAMSUNG ELECTRONICS
14 AMERICA, INC. and SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC
15
16

UNITED STATES DISTRICT COURT

17

NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION

18 APPLE INC., a California corporation,
19
20

CASE NO. 11-cv-01846-LHK

Plaintiff,
vs.

21 SAMSUNG ELECTRONICS CO., LTD., a
Korean business entity; SAMSUNG
22 ELECTRONICS AMERICA, INC., a New
York corporation; SAMSUNG
23 TELECOMMUNICATIONS AMERICA,
LLC, a Delaware limited liability company,
24
Defendants.
25

DECLARATION OF ALEX BINDER IN
SUPPORT OF SAMSUNG’S OPPOSITION
TO APPLE INC.’S MOTION ADVERSE
INFERENCE JURY INSTRUCTION

26
27
28

02198.51855/4743697.3

Case No. 11-cv-01846-LHK
DECLARATION OF ALEX BINDER IN SUPPORT OF SAMSUNG’S OPPOSITION TO APPLE’S
MOTION ADVERSE INFERENCE JURY INSTRUCTION

1

I, Alex Binder, declare:

2

1.

I make this declaration in response to Apple Inc.'s Motion for Adverse Inference

3 Jury Instruction ("Apple's Motion").
4

2.

I am an attorney in the law firm of Quinn Emanuel Urquhart & Sullivan, LLP,

5 counsel for Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., and Samsung
6 Telecommunications America, LLC (collectively “Samsung”).

I have personal knowledge of the

7 facts set forth in this declaration and, if called upon as a witness, I could and would testify to such
8 facts under oath.
9

3.

Under my supervision, contract attorneys for Quinn Emanuel and document

10 production vendors engaged by Quinn Emanuel assisted in gathering the information provided in
11 Paragraphs 5-29 of this Declaration.
12

4.

The numbers provided in Paragraphs 5-29 of this Declaration regarding Samsung's

13 and Apple's productions include documents served by the parties in this action, as well as in the
14 following actions: In the Matter of Certain Electronic Devices, Including Wireless
15 Communication Devices, Portable Music and Data Processing Devices, and Tablet Computers,
16 USITC Inv. No. 337-TA-794 and Apple Inc. v. Samsung Electronics Co., LTD., et al., and In the
17 Matter of Certain Electronic Digital Media Devices and Components Thereof, USITC Inv. No.
18 337-TA-796.
19

5.

20 emails.

Samsung has produced over 12,000,000 pages of documents, including over 80,000
Specifically, Samsung produced over 9,880,000 pages of documents in the ITC

21 investigations and over 2,150,000 pages in the Northern District of California action.
22

6.

Samsung has produced documents and emails from over 380 Samsung employees.

23

7.

Samsung has collected documents from more than 180 hard drives in possession of

24 Samsung custodians.
25

8.

Samsung has collected more than 14 terabytes of data as a result of its document

26 collection efforts for this litigation.
27

9.

Samsung has produced 26 emails sourced to Don Joo Lee.

28

10.

Samsung has produced 547 emails sourced to Joon Il Choi.
Case No. 11-cv-01846-LHK
-1-

DECLARATION OF ALEX BINDER IN SUPPORT OF SAMSUNG’S OPPOSITION TO APPLE’S
MOTION ADVERSE INFERENCE JURY INSTRUCTION

1

11.

Attached hereto as Exhibit 1 is a true and correct copy of the document produced

2 by Samsung bearing Bates labels SAMNDCA11560890 et seq., sourced to Joon Il Choi.
3

12.

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8

13.

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13

14.

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Samsung has produced 2,358 emails sourced to Junho Park.

15.

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19

16.

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24

17.

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26
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18.

Samsung has produced over 5,159 documents, totaling over 71,191 pages, from the

28 Samsung employees identified in the Kim Declaration to Apple's Motion, including the following:
Case No. 11-cv-01846-LHK
-2DECLARATION OF ALEX BINDER IN SUPPORT OF SAMSUNG’S OPPOSITION TO APPLE’S
MOTION ADVERSE INFERENCE JURY INSTRUCTION

1

Custodian

Documents Produced

Pages Produced

2

Don Ju Lee

42

292

3

Dong Sub Kim

438

4,858

4

Hangil Song

6

156

5

Hyoung Shin Park

762

2,857

6

Ioi Lam

239

6,271

7

Jong Dae Park

256

5,343

8

Joon Il Choi

2,077

14,043

9

Minhyouk Lee

83

3,183

10

Nara Cho

488

10,046

11

Seoggeun Kim

262

8,568

12

Seunghwan Cho

76

934

13

Sungsik Lee

397

12,097

14

Won Pyo Hong

18

400

15

YoungSoon Lee

15

2,143

16
17

19.

Samsung has produced emails that were sent to or received by the Samsung

18 deponents listed in Apple's Motion that were collected from the custodial files of other Samsung
19 witnesses ("non-custodial emails").

Additionally, Samsung has produced documents that

20 mention the Samsung deponents listed in Apple's Motion that were collected from the custodial
21 files of other Samsung witnesses ("non-custodial documents").

The following chart summarizes

22 at least the number of non-custodial emails Samsung has produced that were sent from or received
23 by certain Samsung deponents mentioned in Apple's Motion and at least the number of additional
24 non-custodial documents Samsung has produced that mention these deponents.
25
26
27

Custodian
Don Joo Lee

Non-Custodial
Emails
420

Non-Custodial
Documents
31

Dong Sub Kim

124

4

28
Case No. 11-cv-01846-LHK
-3DECLARATION OF ALEX BINDER IN SUPPORT OF SAMSUNG’S OPPOSITION TO APPLE’S
MOTION ADVERSE INFERENCE JURY INSTRUCTION

1

Custodian

2

Hangil Song

Non-Custodial
Emails
77

Non-Custodial
Documents
501

3

Hyoung Shin Park

220

128

4

Ioi Lam

159

89

5

Minhyouk Lee

155

1,036

6

Jong Dae Park

470

150

7

Joon Il Choi

112

42

8

Nara Cho

1,027

149

9

Seunghwan Cho

1,167

327

10

Seoggeun Kim

1,030

319

11

Sung Sik Lee

3,102

807

12

Won Pyo Hong

65

15

13

Youngsoon Lee

105

52

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15

20.

The following chart summarizes the number of emails Apple produced from the

16 custodial files of certain Apple employees relevant to this litigation:
17

Custodian

Relevance

18

No. of Emails in
Custodial
Production
14

No. of Documents
in Custodial
Production
135

Bartley Andre

named inventor of D270,
D899, D087,and D677
patents

21

BJ Watrous

head patent counsel

0

11

22

Brian Huppi

named inventor of '607

0

104

23

Chris Harris

model builder

0

0

24

Chris Stringer

named inventor of D677,
D270, and D889 patents

15

38

Curt Rothert

software engineer

30

30

Duncan Kerr

named inventor of D087,
D677, D270, and patents
D899

41

130

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20

25
26
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28

Case No. 11-cv-01846-LHK
-4DECLARATION OF ALEX BINDER IN SUPPORT OF SAMSUNG’S OPPOSITION TO APPLE’S
MOTION ADVERSE INFERENCE JURY INSTRUCTION

1

Custodian

Relevance

2

No. of Emails in
Custodial
Production
36

No. of Documents
in Custodial
Production
146

Eugene Whang

named inventor of D087,
D677, D270, and D899
patents

Evans Hankey

designer

0

21

Jonathan Ive

named inventor of D087,
D677, D270, and D899
patents

45

173

Mark Buckley

finance analyst

0

100

Mark Lee

manager, model shop

8

10

Matthew Rohrbach

named inventor of D087,
D677, D270, and D889
patents

32

385

Peter Russell-Clarke

named inventor of D270
patent

56

190

Quinn Hoellwarth

Apple in-house attorney,
prosecutor of '949, and
'757 patents

0

0

Rico Zorkendorfer

named inventor of D087,
D677, D270, and D889
patents

15

62

Shin Nishibori

named inventor of D889,
D087, D677, D270, and
D899 patents.

18

94

Stephen Lemay

named inventor of '163
patent

43

59

Steve Jobs

named inventor of '949,
'678, D087, D677, D270,
D889, D757, and D678
patents; former CEO

51

54

Wei Chen

technical director

12

37

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21.

The following chart summarizes the number of non-custodial emails produced for

certain Apple custodians, compared to the number of custodial emails produced for each:

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28
Case No. 11-cv-01846-LHK
-5DECLARATION OF ALEX BINDER IN SUPPORT OF SAMSUNG’S OPPOSITION TO APPLE’S
MOTION ADVERSE INFERENCE JURY INSTRUCTION

1

Witness

Non-Custodial Emails

Custodial Emails

2

Chris Stringer

475

15

3

Douglas Satzger

133

0

4

Eugene Whang

144

36

5

Jonathan Ive

759

45

6

Matthew Rohrbach

112

31

7

Scott Forstall

1,676

172

8

Shin Nishibori

43

18

9

Stephen Lemay

2,028

40

Steve Jobs

2,042

51

10
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12

22.

Attached hereto as Exhibit 2 is a true and correct copy of Apple Inc.'s

13

Supplemental Identification of Custodians, Search Terms, and Document Retention Notices

14

("Apple's Defensive Transparency Disclosures"), and Exhibit FF thereto.

15
16
17

23.

Attached hereto as Exhibit 3 is a true and correct copy of Apple Inc. Amended

Document Retention Notice Distribution. ("Apple's Offensive Transparency Disclosures").
24.

18
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20

25.

21
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23
24
25
26

26.

27

27.

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Case No. 11-cv-01846-LHK
-6DECLARATION OF ALEX BINDER IN SUPPORT OF SAMSUNG’S OPPOSITION TO APPLE’S
MOTION ADVERSE INFERENCE JURY INSTRUCTION

1

28.

Attached hereto as Exhibit 4 is a true and correct copy of Apple Inc.'s First

2 Amended and Supplemental Initial Disclosures Pursuant to Rule 26(a)(1) ("Apple's Initial
3 Disclosures").
4

29.

The following chart summarizes the dates certain offensive or defensive litigation

5 hold notices were issued or sent to certain individuals named in Apple's Initial Disclosures.
6
7

Witness

Potential area(s) of
knowledge (at least)

Offensive Litigation
Hold Notice Issued

Defensive
Litigation Hold
Notice Sent

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10
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15
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Case No. 11-cv-01846-LHK
-7DECLARATION OF ALEX BINDER IN SUPPORT OF SAMSUNG’S OPPOSITION TO APPLE’S
MOTION ADVERSE INFERENCE JURY INSTRUCTION

1

I declare under penalty of perjury that the foregoing is true and correct.

Executed in San

2 Francisco, California on May 29, 2012.
3
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5
6

By /s/ Alex Binder
Alex Binder

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Case No. 11-cv-01846-LHK
-8DECLARATION OF ALEX BINDER IN SUPPORT OF SAMSUNG’S OPPOSITION TO APPLE’S
MOTION ADVERSE INFERENCE JURY INSTRUCTION

1
2

GENERAL ORDER ATTESTATION
I, Victoria F. Maroulis, am the ECF user whose ID and password are being used to file the

3 foregoing DECLARATION OF ALEX BINDER IN SUPPORT OF SAMSUNG'S
4 OPPOSITION TO APPLE INC.'S MOTION FOR ADVERSE INFERENCE JURY
5 INSTRUCTION.

In compliance with General Order 45, X.B., I hereby attest that Alex Binder

6 has concurred in this filing.
7
8

DATE: May 29, 2012

/s/ Victoria Maroulis

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Case No. 11-cv-01846-LHK
-9DECLARATION OF ALEX BINDER IN SUPPORT OF SAMSUNG’S OPPOSITION TO APPLE’S
MOTION ADVERSE INFERENCE JURY INSTRUCTION