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

Filing 996

Administrative Motion to File Under Seal Documents Under Seal Re Apples Opposition To Samsungs Motion To Strike Expert Testimony filed by Apple Inc.. (Attachments: #1 Declaration Of Cyndi Wheeler In Support Of Apples Administrative Motion To File Under Seal Documents Re Apples Opposition To Samsungs Motion To Strike Expert Testimony, #2 Declaration Of Mia Mazza In Support Of Apples Administrative Motion To File Documents Under Seal Re Apples Opposition To Samsungs Motion To Strike Expert Testimony, #3 [Proposed] Order Granting Apples Administrative Motion To File Documents Under Seal Re Apples Opposition To Samsungs Motion To Strike, #4 Apples Opposition To Samsungs Motion To Strike Expert Testimony Based On Undisclosed Facts And Theories, #5 Declaration Of Marc J. Pernick In Support Of Apples Opposition To Samsungs Motion To Strike Expert Testimony Based On Undisclosed Facts And Theories, #6 Exhibit Pernick Decl. Ex. 8, #7 Exhibit Pernick Decl. Ex. 10, #8 Exhibit Pernick Decl. Ex. 11, #9 Exhibit Pernick Decl. Ex. 12, #10 Exhibit Pernick Decl. Ex. 16, #11 Exhibit Pernick Decl. Ex. 17, #12 Exhibit Pernick Decl. Ex. 19, #13 Declaration Of Michel Maharbiz, Ph.D. In Support Of Apples Opposition To Samsungs Motion To Strike Expert Testimony, #14 Exhibit Maharbiz Decl. Ex. A, #15 Exhibit Maharbiz Decl. Ex. B, #16 [Proposed] Order Denying Samsungs Motion To Strike Expert Testimony (Dkt. No. 936))(Jacobs, Michael) (Filed on 5/31/2012) Modified on 6/3/2012 pursuant to General Order No. 62, attachment #1 and #2 Sealed (dhm, COURT STAFF).

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HAROLD J. MCELHINNY (CA SBN 66781)
[e-mail]
MICHAEL A. JACOBS (CA SBN 111664)
[e-mail]
JENNIFER LEE TAYLOR (CA SBN 161368)
[e-mail]
ALISON M. TUCHER (CA SBN 171363)
[e-mail]
RICHARD S.J. HUNG (CA SBN 197425)
[e-mail]
JASON R. BARTLETT (CA SBN 214530)
[e-mail]
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: [phone]
Facsimile: [phone]

WILLIAM F. LEE
[e-mail]
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
Telephone: [phone]
Facsimile: [phone]
MARK D. SELWYN (SBN 244180)
[e-mail]
WILMER CUTLER PICKERING
HALE AND DORR LLP
950 Page Mill Road
Palo Alto, California 94304
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiff and
Counterclaim-Defendant APPLE INC.

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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APPLE INC., a California corporation,
Plaintiff,

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v.
SAMSUNG ELECTRONICS CO., LTD., a
Korean corporation; SAMSUNG
ELECTRONICS AMERICA, INC., a New
York corporation; and SAMSUNG
TELECOMMUNICATIONS AMERICA,
LLC, a Delaware limited liability company,

Case No. 11-cv-01846-LHK
DECLARATION OF CYNDI
WHEELER IN SUPPORT OF
APPLE’S ADMINISTRATIVE
MOTION TO FILE UNDER SEAL
DOCUMENTS RE APPLE’S
OPPOSITION TO SAMSUNG’S
MOTION TO STRIKE EXPERT
TESTIMONY

Defendants.

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WHEELER DECL. ISO MOTION TO FILE UNDER SEAL RE MOTION TO STRIKE EXPERT TESTIMONY
CASE NO. 11-CV-01846-LHK
sf-3150855

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I, Cyndi Wheeler, do hereby declare as follows:

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1.

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I am an attorney for Apple Inc. (“Apple”). I submit this declaration in support of

Apple’s Administrative Motion to File Documents Under Seal re Apple’s Opposition to

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Samsung’s Motion to Strike Expert Testimony. I have personal knowledge of the matters set
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forth below. If called as a witness I could and would testify competently as follows.
2.

I understand that the confidential, unredacted version of Apple’s Opposition to

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Samsung’s Motion to Strike Expert Testimony contains material that Samsung has designated

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Outside Attorneys’ Eyes Only. I have reviewed a redacted version of this document. It contains

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highly confidential and commercially sensitive business information, including confidential
information regarding licensing agreements and potential licensing agreements with business

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partners, that could be used to Apple’s disadvantage by competitors if it were not filed under seal.
In addition, the parties have stipulated that damages-related expert materials should be submitted
to the Court under seal and not placed on the public record.
3.

The confidential, unredacted version of Terry L. Musika’s Declaration in Support

of Apple’s Opposition to Samsung’s Motion to Strike Expert Testimony contains highly
confidential and commercially sensitive business information, including confidential information

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regarding licensing agreements and potential licensing agreements with business partners that
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could be used to Apple’s disadvantage by competitors if it were not filed under seal. In addition,

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the parties have stipulated that all damages-related expert materials should be submitted to the

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Court under seal and not placed on the public record.

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4.

Exhibits A-C to Terry L. Musika’s Declaration in Support of Apple’s Opposition

to Samsung’s Motion to Strike Expert Testimony contain highly confidential and commercially
sensitive business information, including confidential information regarding licensing agreements

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and potential licensing agreements with business partners that could be used to Apple’s
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WHEELER DECL. ISO MOTION TO FILE UNDER SEAL RE MOTION TO STRIKE EXPERT TESTIMONY
CASE NO. 11-CV-01846-LHK
sf-3150855

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disadvantage by competitors if it were not filed under seal. In addition, the parties have stipulated

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that all damages-related expert materials should be submitted to the Court under seal and not

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placed on the public record.

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5.

I understand that the confidential, unredacted version of the Pernick Declaration in

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Support of Apple’s Opposition to Samsung’s Motion to Strike Expert Testimony contains

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material that Samsung has designated Outside Attorneys’ Eyes Only. I have reviewed a redacted

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version of this document. It contains highly confidential and commercially sensitive business

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information, including confidential information regarding licensing agreements and potential

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licensing agreements with business partners that could be used to Apple’s disadvantage by
competitors if it were not filed under seal. In addition, the parties have stipulated that all

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damages-related expert materials should be submitted to the Court under seal and not placed on
the public record.
6.

Exhibits 5, 6, 7, 9, 18 and 20-32 to the Pernick Declaration contain information

that Apple treats confidential in the ordinary course of its business. Specifically:
a. Pernick Declaration Exhibits 5 and 6 contain a large variety of types of
confidential information including information regarding licensing

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agreements and potential licensing agreements with business partners and
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commercially sensitive business information, including information about

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confidential discussions with third parties relating to legal disputes that

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could be used to Apple’s disadvantage by competitors if it were not filed

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under seal.

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b. Pernick Declaration Exhibit 7 is excerpts from the Sood Deposition on
April 20, 2012. It contains confidential, proprietary market research and

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analysis, including information about the competitive landscape for mobile
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WHEELER DECL. ISO MOTION TO FILE UNDER SEAL RE MOTION TO STRIKE EXPERT TESTIMONY
CASE NO. 11-CV-01846-LHK
sf-3150855

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devices. This business information was created at a significant cost to

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Apple, and could be used by Apple’s competitors to its disadvantage,

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particularly because it discusses Apple’s direct competitors. In addition,

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the parties have stipulated that all survey-related expert materials will be
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submitted under seal.

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c. Pernick Declaration Exhibit 9 is an excerpt from the Expert Report of

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Woodward Yang Regarding the Infringement of U.S. Patent Nos. US

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7,577,460, US 7,456,893, US 7,698,711 and US 7,079,871. I understand

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that Samsung has designated this Report Outside Attorneys’ Eyes
Only. Paragraphs 40, 75-76, 86, 88-91 and exhibit 3 of the attached

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excerpt contain non-public Apple confidential information relating to
Apple’s products and the source code in Apple’s products, and could be
used to Apple’s disadvantage by competitors if it were not filed under seal.
d. Pernick Declaration Exhibit 18 is excerpts from Apple’s Objections and
Responses to Samsung’s Interrogatories to Apple Relating to Apple Inc.’s
Motion for a Preliminary Injunction served July 25, 2011, which includes

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information regarding Apple’s development of its patented technologies.
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e. Pernick Declaration Exhibits 20-22 are correspondence from Apple to

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Samsung regarding the clawback of documents containing privileged

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information. These Exhibits contain highly confidential and commercially

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sensitive business and financial information, including confidential

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discussions between the parties relating to legal disputes, that could be

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used to Apple’s disadvantage by competitors if they were not filed under

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seal.
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WHEELER DECL. ISO MOTION TO FILE UNDER SEAL RE MOTION TO STRIKE EXPERT TESTIMONY
CASE NO. 11-CV-01846-LHK
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f. Pernick Declaration Exhibits 23-28 are selected licensing agreements. As

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such, they contain highly confidential and commercially sensitive business

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information, including confidential information regarding licensing

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agreements with business partners, that could be used to Apple’s
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disadvantage by competitors if it were not filed under seal.
g. Pernick Declaration Exhibit 29 is excerpts from the Blevins Deposition on

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April 3, 2012. It contains discussions of manufacturing details, strategies

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for detecting and resolving problems, and confidential details of design and

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development practices that could be used to Apple’s disadvantage by
competitors if it were not filed under seal.

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h. Pernick Declaration Exhibit 30 is excerpts from the O’Brien Deposition on
April 20, 2012. It contains highly confidential and commercially sensitive

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business information, including confidential information regarding

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licensing agreements and potential licensing agreements with business

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partners, that could be used to Apple’s disadvantage by competitors if it

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were not filed under seal.

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i. Pernick Declaration Exhibit 31 is excerpts from the Corrected Expert
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Report of Michael J. Wagner. Exhibit 32 is excerpts from the Wagner

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Deposition on May 12, 2012. They contain highly confidential and

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commercially sensitive business information, including confidential

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information regarding damages that could be used to Apple’s disadvantage

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by competitors if it were not filed under seal. In addition, the parties have

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stipulated that damages-related expert materials should be submitted to the

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Court under seal and not placed on the public record.
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WHEELER DECL. ISO MOTION TO FILE UNDER SEAL RE MOTION TO STRIKE EXPERT TESTIMONY
CASE NO. 11-CV-01846-LHK
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7.

It is Apple’s policy not to disclose or describe its confidential financial, licensing,

trade secret, or product development information. The information that is described above is
confidential to Apple. Apple is well known worldwide for its corporate culture of carefully

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maintaining the confidentiality of its business information. If disclosed, the information in the
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materials described above could be used by Apple’s competitors to Apple’s disadvantage.
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To the extent that Apple’s Opposition, and the Pernick, Musika, and Maharbiz

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Declarations, refer to or discuss the above-referenced materials, they could be used to Apple’s

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disadvantage by competitors if they were not filed under seal, for the same reasons.

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9.

The relief requested in this motion is necessary and is narrowly tailored to protect

confidential information, focusing only on specific exhibits and specific portions of the brief at

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issue.
I declare under penalty of perjury under the laws of the United States of America that the

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foregoing is true and correct to the best of my knowledge and that this Declaration was executed

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this 31st day of May, 2012, at Cupertino, California.

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By: /s/ Cyndi Wheeler

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WHEELER DECL. ISO MOTION TO FILE UNDER SEAL RE MOTION TO STRIKE EXPERT TESTIMONY
CASE NO. 11-CV-01846-LHK
sf-3150855

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