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

Filing 105

Declaration of Michael L. Fazio in Support of #103 Opposition/Response to Motion, #104 Opposition/Response to Motion, filed bySamsung Electronics America, Inc., Samsung Electronics Co., Ltd., Samsung Telecommunications America, LLC. (Attachments: #1 Exhibit A to Fazio Decl., #2 Exhibit B to Fazio Decl., #3 Exhibit C to Fazio Decl., #4 Exhibit D to Fazio Decl., #5 Exhibit E to Fazio Decl., #6 Exhibit F to Fazio Decl., #7 Exhibit G to Fazio Decl., #8 Exhibit H to Fazio Decl., #9 Exhibit I to Fazio Decl., #10 Exhibit J to Fazio Decl., #11 Exhibit K to Fazio Decl., #12 Exhibit L to Fazio Decl., #13 Exhibit M to Fazio Decl.)(Related document(s) #103 , #104 ) (Shields, Patrick) (Filed on 4/18/2012)

EXHIBIT L

quinn emanuel trial lawyers | los angeles
865 South Figueroa Street, 10th Floor, Los Angeles, California 90017-2543 | TEL: [phone] FAX: [phone]

April 2, 2012
Via E-Mail
Brian M. Buroker
Gibson Dunn & Crutcher, LLP
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036-5306
Re:

Apple v. Samsung Elecs. Co. et al, Case No 12-cv-630

Dear Mr. Buroker
I write to respond to Apple's meet and confer letter dated March 29, 2012. In its letter, Apple
references the discovery schedule ordered by the Court, stating that "the Court not only permitted
discovery, but also shortened the amount of time by which the parties are required to respond to
discovery requests …." Apple seems to contend that because the Court permitted expedited
discovery relevant only to Apple's Preliminary Injunction Motion, Samsung must not only waive
all objections to Apple's interrogatories, but also unfailingly respond to Apple's interrogatories
no matter how infirm they are. Obviously, that was not the Court's Order. See also Fed. R. Civ.
P. 33(b)(3) ("Each interrogatory must, to the extent it is not objected to, be answered …")
(emphasis added).
Similarly, Apple accuses Samsung of "fail[ing] to abide by the Court's schedule." Apple's
statement is baseless. Samsung responded to Apple's interrogatories by the deadline ordered by
the Court. Samsung responded to Apple Interrogatory Nos. 1, 2, 3, 9 and 10 while objecting to
Apple's remaining five interrogatories. The Court's Scheduling Order requires no more.
Samsung's specific objections and responses to the contentions raised by Apple in its March 29th
letter are addressed below.
Interrogatory Nos. 2-3, 9-10
Apple contends that Samsung "provided only a perfunctory response" to Interrogatory Nos. 2-3.
These interrogatories seek information regarding the Ice Cream Sandwich source code generated
by Google and used by Galaxy Nexus. As Samsung made clear in these interrogatory responses
– and as Samsung states once again – the source code for the version of Ice Cream Sandwich
used on Galaxy Nexus was written by Google, not Samsung. Samsung does not have possession

of that source code. To Samsung’s knowledge, the only company in possession of the source
code used on Galaxy Nexus is Google.
Interrogatory No. 2 asks Samsung to provide additional information based upon the source code.
Because Samsung has no source code to produce, Samsung cannot possibly identify "all [source
code] files that relate to the accused features," as Apple requests in Interrogatory No. 2.
In the same vein, Apple's Interrogatory No. 3 requests that Samsung compare the source code
modules identified in Apple's expert declarations with the source code used in Galaxy Nexus
and, based upon Samsung's comparison, identify the differences and persons knowledgeable
about those differences. Again, because Samsung does not have this source code, Samsung
cannot possibly perform the comparison requested by Apple.
Apple also quibbles with Samsung's response to Interrogatory Nos. 9 and 10. These
interrogatories request that Samsung identify consumer studies, analysis or reports regarding the
accused features (Interrogatory No. 9), and internal or third party discussions regarding the
accused features (Interrogatory No. 10). Samsung responded by stating that it is presently
unaware of either, and that if discovery reveals information responsive to these interrogatories,
then Samsung will promptly supplement its response. It is unclear how Samsung's response may
rationally be classified as "perfunctory." Again, Samsung cannot provide to Apple that which
Samsung does not have.
Interrogatory Nos. 4-8
Apple contends that Samsung improperly failed to respond to Interrogatory No. 4. Yet Apple
ignores the fact that its Interrogatory No. 4 consists of no fewer than nine separate interrogatories
rolled into one. Specifically, it seeks to discover:
(1)

"facts … surrounding Samsung's knowledge of the Preliminary Injunction Patents";

(2)

"circumstances surrounding Samsung's knowledge of the Preliminary Injunction Patents";

(3)

"whether or not Samsung was aware of each of the Preliminary Injunction Patents prior
to the filing of this lawsuit";

(4)

"when Samsung became aware of each of the Preliminary Injunction Patents";

(5)

"how Samsung became aware of each of the Preliminary Injunction Patents";

(6)

"efforts made to avoid [alleged] infringement of each of the Preliminary Injunction
Patents";

(7)

"identify the person(s) most knowledgeable about the response to this interrogatory";

(8)

"locate and identify all documents which refer or relate to the facts and assertions in the
response"; and

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(9)

"locate and identify all documents … which were reviewed in preparing the response to
this interrogatory";

Similarly, Apple's Interrogatory Nos. 5 and 6 contains at least ten subparts, while its
Interrogatory No. 7 contains eight subparts. Accordingly, in the aggregate, Apple's Interrogatory
Nos. 4-7 are, in fact, at least 37 separate interrogatories. The Court did not grant Apple leave to
exceed the 25 interrogatory limit. See Fed. R. Civ. P. 33(a).
Further, the information that Apple's seeks through its Interrogatory No. 4 – "facts and
circumstances surrounding Samsung's knowledge of the Preliminary Injunction Patents" – is
irrelevant to the issues of Samsung's alleged infringement of those patents, the validity of the
Preliminary Injunction Patents, irreparable harm and any other issue raised by Apple's
Preliminary Injunction Motion. If Apple disagrees, the please explain to Samsung how
Interrogatory No. 4 is relevant to Apple's Preliminary Injunction Motion.
Additionally, Apple's Interrogatory Nos. 5-7 are based upon Samsung's purported contentions as
articulated by Apple. Samsung responding to these interrogatories, therefore, necessarily
requires Samsung to articulate its contentions in advance of Samsung filing its Opposition to
Apple's Preliminary Injunction Motion. Yet according to the Court's Scheduling Order,
Samsung's Opposition – which will contain Samsung's contentions – is not due until April 23,
2012. Before Samsung files its Opposition Brief, Samsung's contentions are work product that
Apple is not entitled to discover.
As to Interrogatory No. 8, Apple acknowledges that it is "directed to whether Samsung
considered or copied any feature of Apple products in developing its smartphones or tablet
computers." Apple's Preliminary Injunction Motion has nothing to do with the vast body of
Apple features, Apple products and Samsung products. Rather, it deals with four accused
features of one Samsung product – the Galaxy Nexus. Indeed, the Court's Scheduling Order
does not permit such broad discovery. See Order dated February 22, 2012 at 2 ("The parties may
obtain discovery relevant to the preliminary injunction motion"). The information sought by
Interrogatory No. 8 also is irrelevant to any issue raised by Apple's Preliminary Injunction
Motion, and Apple's attempt to take discovery on issues well beyond the scope of that motion is
improper. If Apple contends that discovery on the gamut of "any Samsung smartphone or table
computer" and "any Apple product or produce feature" is relevant to Apple's Preliminary
Injunction Motion, then please articulate in detail that relevance.
Apple also states that if Samsung questions "any Apple witness regarding any of the foregoing"
then Apple "will move to preclude any/or strike such argument or evidence." As a preliminary
matter, it is unclear what Apple means by this confusingly-written sentence. If Apple takes issue
with Samsung’s written discovery responses, we suggest Apple engage in a meaningful meet and
confer process. The Local Rules and the Federal Rules of Civil Procedure outline a procedure
for resolution of such discovery disputes; however, that process does not include a declaration by
Apple, ipse dixit, that Samsung is precluded from proving certain facts. In any event, the Court
set a schedule by which Samsung must oppose Apple's Preliminary Injunction Motion, and
Samsung's forthcoming Opposition brief will contain Samsung's contentions that are relevant to
the motion.

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Lastly, Apple's letter of March 29th accuses Samsung of "violat[ing] both the letter and spirit of
the Court's Order." Samsung has done no such thing and Apple fails to expand upon its
accusation, other than to state that Apple believes Samsung's interrogatory responses are
inadequate. It should come to no surprise to Apple that Samsung believes Apple's interrogatory
responses are likewise inadequate. Samsung, however, has refrained from such unprincipled
conduct, like accusing Apple of violating Court Orders. The parties would be better served
without resorting to such statements.
Very truly yours,

Michael Fazio

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