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 G

quinn emanuel

trial lawyers | los angeles

865 South Figueroa Street, 10th Floor, Los Angeles, California 90017-2543 | TEL: [phone] FAX: [phone]

April 10, 2012
Via E-Mail
Mark Lyon
Gibson Dunn & Crutcher, LLP
1881 Page Mill Road
Palo Alto, California 94304
Re:

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

Dear Counsel:
I write to follow-up on the parties' lead trial counsel meet and confer held on April 10, 2012 at
Quinn Emanuel's Los Angeles office.
During the meet and confer, Samsung noted the deficiency with Apple's response to Samsung's
Interrogatory No. 4. Specifically, though Apple supplemented its response to this interrogatory
to provide the Bates numbers of certain license agreements, Apple has not represented that those
license agreements it identifies constitute all license agreements for the Preliminary Injunction
Patents. Similarly, Samsung pointed out that Apple has not responded to the remainder of
Interrogatory No. 4. In response, Apple agreed to confer internally and, by close of business on
April 13, 2012, confirm that the license agreements listed in Apple's Supplemental Interrogatory
Response No. 4 represent all license agreements and whether Apple will further supplement this
interrogatory to provide the remaining information that it requests.
With respect to Samsung's Interrogatory Nos. 1 and 3, Samsung pointed out that Apple's
response is inadequate because it leaves open the possibility that Apple currently knows of facts
relevant to Apple's Preliminary Injunction Motion and yet is saving those facts for Apple's Reply
brief. In response, Apple represented that it is not presently aware of any pertinent facts that it is
withholding only to insert into its Reply brief.
quinn emanuel urquhart & sullivan, llp
NEW YORK |

51 Madison Avenue, 22nd Floor, New York, New York 10010-1601 | TEL [phone] FAX [phone]
50 California Street, 22nd Floor, San Francisco, California 94111-4788 | TEL [phone] FAX [phone]
SILICON VALLEY | 555 Twin Dolphin Drive, 5th Floor, Redwood Shores, California 94065-2139 | TEL [phone] FAX [phone]
CHICAGO | 500 W. Madison Street, Suite 2450, Chicago, Illinois 60661-2510 | TEL [phone] FAX [phone]
WASHINGTON, DC | 1299 Pennsylvania Avenue NW, Suite 825, Washington, District of Columbia 20004-2400 | TEL [phone] FAX [phone]
LONDON | 16 Old Bailey, London EC4M 7EG, United Kingdom | TEL [phone] FAX [phone]
TOKYO | NBF Hibiya Building, 25F, 1-1-7, Uchisaiwai-cho, Chiyoda-ku, Tokyo 100-0011, Japan | TEL [phone] FAX [phone]
MANNHEIM | Mollstraße 42, 68165 Mannheim, Germany | TEL [phone] FAX [phone]
02198.51981/4698754.2
MOSCOW | Voentorg Building, 3rd Floor, 10 Vozdvizhenka Street, Moscow 125009, Russia | TEL [phone] FAX [phone]
SAN FRANCISCO |

As to Samsung's Interrogatory No. 2, Samsung stated that it would be willing to limit the
definition of "prior art" as used therein to the prior art of record that Apple disclosed to the
USPTO. Notwithstanding Samsung's offer, Apple refuses to provide any further response to
Interrogatory No. 2, contending that Apple believes the information sought by this interrogatory
is irrelevant and, according to Apple, it is unable to respond because of the terms "incremental
improvement," "prior art" and "design-arounds."
The parties also discussed Samsung's responses to Apple's First Set of Interrogatories. With
respect to Interrogatory Nos. 2 and 3, and in response to Apple's question regarding whether
Apple based its Motion on the "wrong" source code, Samsung stated that Apple has, in fact,
based its Preliminary Injunction Motion on the wrong source code – meaning that Apple bases
its motion upon the publicly available version of Ice Cream Sandwich ("ICS"). The code that is
on the Galaxy Nexus phone, however, is not the open source publicly available version of ICS,
but rather a proprietary version that only Google possesses. Samsung again confirmed that it
does not have this propriety ICS source code. Accordingly, Samsung cannot presently make a
comparison between that proprietary ICS source code and the open source version. Samsung
confirmed that to the extent Samsung acquires this propriety ICS source code, Samsung will
provide it to Apple and the parties will subsequently meet and confer regarding further discovery
obligations related to that source code, if any.
With respect to Samsung's response to Apple's Interrogatory No. 8, Samsung again pointed out
that this interrogatory was overbroad as it seeks information regarding "any Samsung
smartphone or tablet computer." Samsung also stated that because this interrogatory seeks
discovery on all Samsung products, it is irrelevant to Apple's Preliminary Injunction Motion.
Apple responded that it believes this interrogatory is relevant to show a pattern of copying
which, according to Apple, may be a "secondary consideration" in showing likelihood of success
on the merits. Apple added that, in its view, this interrogatory may also be relevant to irreparable
harm. Though Samsung disagreed with each of these contentions, Samsung requested a proposal
from Apple by which the scope of Interrogatory No. 8 would be narrowed. Apple stated that it
will let Samsung know if it has such a proposal, but Samsung should assume that Apple is
unwilling to narrow this interrogatory in any way.
As to Interrogatory No. 9, Apple provided Samsung with three bates numbers of documents
produced in other cases between Samsung and Apple that Apple claimed are responsive to this
interrogatory. Samsung has reviewed these three documents. None deal with Galaxy Nexus or
the accused features at issue on Apple's Preliminary Injunction Motion. If you continue to
believe these documents are relevant to Interrogatory No. 9, please explain how; if there are
additional documents you would like us to consider on this issue, please identify them.
Samsung also reiterated that its investigation is continuing and, if Samsung discovers
information or documents responsive to Interrogatory No. 9, then Samsung will supplement its
response accordingly. Apple was dissatisfied with Samsung's response and indicated that it
intends to bring a motion to compel regardless of Samsung's efforts to respond to this
interrogatory. Apple also stated that it may move for an order regarding requirements on
Samsung's investigation, but Apple refused to (or was unable to) articulate exactly what relief
Apple would seek through such a motion.

02198.51981/4698754.2

2

Samsung also noted that to the extent Apple's Interrogatory No. 9 requests that Samsung identify
certain documents produced in other cases, Apple is equally able to search through those
productions and identify such documents. Accordingly, Interrogatory No. 9 really amounts to a
request that Samsung do Apple's heavy lifting in identifying these documents.
As to Interrogatory No. 10, Samsung stated that it would consider supplementing its response to
this interrogatory. However, Apple responded to Samsung's offer by stating that it could not
think of anything that Samsung could say or do in response to Interrogatory No. 10 that would
satisfy Apple. Notwithstanding Apple's position, Samsung will let Apple know by close of
business on April 11, 2012 if Samsung will supplement its response to Interrogatory No. 10.
As to Apple's Interrogatory Nos. 5, 6 and 7, the parties agreed that they are at an impasse and
Apple stated that it "may seek relief" at some later date, without specifying what that relief might
be.
The parties also agreed to further meet and confer on Samsung's responses to Apple's production
requests on April 11, 2012 at 2:00 pm (after the parties' Rule 26(f) conference).
Lastly, though not specifically discussed, Samsung notes that Apple has not responded to
Samsung's letter dated April 6, 2012 regarding Apple's objections and responses to Samsung's
Requests for Production. Accordingly, Samsung requests that Apple also be prepared to discuss
the issues raised in Samsung's April 6th letter during the continued meet and confer tomorrow.
Very truly yours,

Michael L. Fazio

02198.51981/4698754.2

3