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)
hmcelhinny@mofo.com
MICHAEL A. JACOBS (CA SBN 111664)
mjacobs@mofo.com
JENNIFER LEE TAYLOR (CA SBN 161368)
jtaylor@mofo.com
ALISON M. TUCHER (CA SBN 171363)
atucher@mofo.com
RICHARD S.J. HUNG (CA SBN 197425)
rhung@mofo.com
JASON R. BARTLETT (CA SBN 214530)
jasonbartlett@mofo.com
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: (415) 268-7000
Facsimile: (415) 268-7522
WILLIAM F. LEE
william.lee@wilmerhale.com
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
Telephone: (617) 526-6000
Facsimile: (617) 526-5000
MARK D. SELWYN (SBN 244180)
mark.selwyn@wilmerhale.com
WILMER CUTLER PICKERING
HALE AND DORR LLP
950 Page Mill Road
Palo Alto, California 94304
Telephone: (650) 858-6000
Facsimile: (650) 858-6100
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,
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Plaintiff,
v.
SAMSUNG ELECTRONICS CO., LTD., a
Korean business entity; SAMSUNG
ELECTRONICS AMERICA, INC., a New York
corporation; SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC, a
Delaware limited liability company,
Case No. 11-cv-01846-LHK (PSG)
DECLARATION OF MARC J.
PERNICK IN SUPPORT OF APPLE’S
OPPOSITION TO SAMSUNG’S
MOTION TO STRIKE EXPERT
TESTIMONY BASED ON
UNDISCLOSED FACTS AND
THEORIES
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Defendants.
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PUBLIC REDACTED VERSION
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DECLARATION OF MARC J. PERNICK ISO APPLE’S OPPOSITION TO SAMSUNG’S MOTION TO STRIKE
CASE NO. 11-cv-01846-LHK (PSG)
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I, Marc J. Pernick, declare as follows:
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I am a partner in the law firm of Morrison & Foerster LLP, counsel for Apple Inc.
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(“Apple”) in this action. I am licensed to practice law in the State of California and admitted to
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practice before this Court. I submit this declaration in support of Apple’s Opposition to
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Samsung’s Motion to Strike Expert Testimony Based on Undisclosed Facts and Theories.
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1.
Unless otherwise indicated, I have personal knowledge of the matters stated herein
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or understand them to be true from members of my litigation team. If called as a witness, I would
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testify to the facts set forth below.
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2.
Attached hereto as Exhibits 1 and 2 are a true and correct copy of Samsung’s First
and Second Supplemental Responses to Interrogatory No. 81.
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Samsung produced the document bearing Bates No. SAMNDCA10903768-783 on
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February 19, 2012. Attached as Exhibit C to the Declaration of Dr. Michel Maharbiz in Support
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of Apple’s Opposition to Samsung’s Motion to Strike Expert Testimony, filed herewith
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(“Maharbiz Declaration”) is a true and correct copy of SAMNDCA10903768-783. Apple also
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received this document from Atmel (designated ATMEL-SAMSUNG00000286-301) on
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February 22, 2012. Attached as Exhibit D to the Maharbiz Declaration is a true and correct copy
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of ATMEL-SAMSUNG00000286-301.
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4.
Dr. Michel Maharbiz offered expert deposition testimony in this case on
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April 19, 2012. Attached hereto as Exhibit 3 is a true and correct copy of excerpts of
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Dr. Maharbiz’s deposition testimony.
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5.
Dr. Brian Von Herzen offered expert deposition testimony in this case on
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April 27, 2012. Attached hereto as Exhibit 4 is a true and correct copy of excerpts of Dr. Von
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Herzen’s deposition testimony.
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6.
On August 3, 2011, Samsung served its First Set of Requests for Production to
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Apple and its First Set of Interrogatories to Apple. Apple served its objections on
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September 12, 2011. A true and correct copy of the relevant Requests for Production and Apple’s
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objections are attached hereto as Exhibit 5.
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DECLARATION OF MARC J. PERNICK ISO APPLE’S OPPOSITION TO SAMSUNG’S MOTION TO STRIKE
CASE NO. 11-cv-01846-LHK (PSG)
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7.
Attached hereto as Exhibit 6 is a true and correct copy of Samsung’s Interrogatory
No. 16 and Apple’s objections thereto.
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Dr. Sanjay Sood offered expert deposition testimony in this case on
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April 20, 2012. Attached hereto as Exhibit 7 is a true and correct copy of excerpts of Dr. Sood’s
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deposition testimony.
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9.
Attached hereto as Exhibit 8 is a true and correct copy of Exhibit L to Samsung’s
Patent L.R. 3-1 Infringement Contentions for the ’711 Patent.
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On March 22, 2012, Dr. Woodward Yang provided an infringement report for the
’711 Patent. Attached hereto as Exhibit 9 is a true and correct copy of excerpts of the Expert
Report of Dr. Woodward Yang, including certain exhibits attached thereto.
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Also on March 22, 2012, Dr. Tony Givargis provided an expert report regarding
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the invalidity of asserted claims of ’711 Patent. Attached hereto as Exhibit 10 is a true and
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correct copy of excerpts of Dr. Givargis’s report.
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Attached hereto as Exhibit 11 is a true and correct copy of excerpts of Apple’s
L.R. 3-3 Disclosures, including certain exhibits to those disclosures.
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Dr. Givargis offered deposition testimony in this case on April 23, 2012. Attached
hereto as Exhibit 12 is a true and correct copy of excerpts of Dr. Givargis’s deposition testimony.
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Attached hereto as Exhibit 13 is a true and correct copy of an October 26, 2012
letter from counsel for Samsung to counsel for Apple.
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On January 10, 2012 Samsung agreed to produce product samples to Apple.
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Attached hereto as Exhibit 14 is a true and correct copy of a January 10, 2012 letter from counsel
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for Samsung to counsel for Apple indicating Samsung’s agreement to produce these products.
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Attached hereto as Exhibit 15 is a true and correct copy of one of many letters from counsel for
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Apple to counsel for Samsung requesting access to the products. Because Samsung did not
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provide Apple with the requested products, Apple obtained them independently.
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Attached hereto as Exhibit 16 is a true and correct copy of an April 22, 2012 letter
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from counsel for Samsung to counsel for Apple requesting to inspect the products
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Dr. Balakrishnan examined.
DECLARATION OF MARC J. PERNICK ISO APPLE’S OPPOSITION TO SAMSUNG’S MOTION TO STRIKE
CASE NO. 11-cv-01846-LHK (PSG)
sf-3150823
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17.
Attached hereto as Exhibit 17 is a true and correct copy of a letter from counsel
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for Apple to counsel for Samsung offering to make the products available for inspection. That
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inspection took place on May 29, 2012 and is set to continue on June 1, 2012.
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Attached hereto as Exhibit 18 is a true and correct copy of Apple’s Response to
Samsung’s Preliminary Injunction Interrogatory No 6.
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Apple produced updated versions of the iPhone, iPad, and iPod royalty reports on
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March 8, 2012 with information through fiscal Q1 2012. After the March 8 deadline, Apple
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determined that the produced royalty reports contained privileged and work product information.
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Pursuant to paragraph 16 of the Protective Order, Apple immediately clawed back the documents
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and substituted non-privileged versions two days later.
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When Samsung objected to the format of those documents, Apple produced new
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replacement documents. Samsung voiced additional objections to these documents, and to
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address those concerns, Apple produced a set of the original royalty reports redacted for
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privileged information.
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Counsel for Apple fully explained the reasons for clawing back these reports in its
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correspondence with counsel for Samsung and in its privilege log. Attached hereto as
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Exhibits 19, 20 and 21 are true and correct copies of correspondence from counsel for Apple to
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counsel for Samsung explaining the need to clawback these documents. Attached hereto as
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Exhibit 22 is a true and correct copy of an excerpt from Apple’s privilege log produced to
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Samsung on April 11, 2012, relating to these documents.
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On March 8, 2012, Apple made a production of documents bates labeled
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APLNDC-Y0000148298 - APLNDC-Y0000231186. This production included MFI licenses.
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Attached hereto as Exhibit 23 is a true and correct copy of the cover email for Apple’s
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March 8, 2012 production and relevant licenses produced that day.
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23.
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Prior to the March 8, 2012 close of fact discovery, Apple had produced
including all licenses covering the patents in suit. In fact, Apple produced all agreements
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that
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25, 26, 27 and 28 are relevant agreements produced as APL-ITC796-0000010041,
by September 29, 2011. Attached hereto as Exhibits 24,
DECLARATION OF MARC J. PERNICK ISO APPLE’S OPPOSITION TO SAMSUNG’S MOTION TO STRIKE
CASE NO. 11-cv-01846-LHK (PSG)
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APLNDC0001221082, APLNDC00014215, APLITC796-0000010019, and APLNDC-
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X0000007220, respectively.
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24.
Tony Blevins offered deposition testimony in this case on April 20, 2012.
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Attached hereto as Exhibit 29 is a true and correct copy of excerpts of Mr. Blevins’s deposition
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testimony.
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25.
Vincent O’Brien offered deposition testimony in this case on April 20, 2012.
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Attached hereto as Exhibit 30 is a true and correct copy of excerpts of Mr. O’Brien’s deposition
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testimony.
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Michael Wagner provided a “corrected expert report” on April 20, 2012. Attached
hereto as Exhibit 31 is a true and correct copy of excerpts of Mr. Wagner’s report.
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Mr. Wagner offered deposition testimony in this case on May 12, 2012. Attached
hereto as Exhibit 32 is a true and correct copy of excerpts of Mr. Wagner’s deposition testimony.
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I declare under penalty of perjury that the foregoing is true and correct. Executed this 31st
day of May, 2012, at Palo Alto, California.
/s/ Marc J. Pernick
Marc J. Pernick
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DECLARATION OF MARC J. PERNICK ISO APPLE’S OPPOSITION TO SAMSUNG’S MOTION TO STRIKE
CASE NO. 11-cv-01846-LHK (PSG)
sf-3150823
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ATTESTATION OF E-FILED SIGNATURE
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I, Michael A. Jacobs, am the ECF User whose ID and password are being used to file this
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Declaration. In compliance with General Order 45, X.B., I hereby attest that Marc J. Pernick has
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concurred in this filing.
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Dated: May 31, 2012
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/s/ Michael A. Jacobs
Michael A. Jacobs
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DECLARATION OF MARC J. PERNICK ISO APPLE’S OPPOSITION TO SAMSUNG’S MOTION TO STRIKE
CASE NO. 11-cv-01846-LHK (PSG)
sf-3150823
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