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

Filing 144

Declaration of Heather H. Martin in Support of #142 Opposition/Response to Motion, filed byGoogle Inc.. (Attachments: #1 Exhibit 1, #2 Exhibit 2, #3 Exhibit 3, #4 Exhibit 4, #5 Exhibit 5, #6 Exhibit 6, #7 Exhibit 7, #8 Exhibit 8, #9 Exhibit 9, #10 Exhibit 10, #11 Exhibit 11, #12 Exhibit 12, #13 Exhibit 13, #14 Exhibit 14)(Related document(s) #142 ) (Candido, Amy) (Filed on 4/28/2012)

EXHIBIT 9

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January 31, 2012
VIA ELECTRONIC MAIL
J. Jason Lang
Weil, Gotshal & Manges LLP
201 Redwood Shores Parkway
Redwood Shores, CA 94065
[e-mail]
Re:

Apple Inc. v. Motorola, Inc. et al., No. 10-23580 (S.D. Fla.)

Dear Mr. Lang:
I write to follow up on our meet and confer discussions regarding the subpoena Defendant and
Counterclaim-Plaintiff Apple Inc. (“Apple”) served on non-party Google Inc. (“Google”) on
Friday, November 4, 2011 (the “Subpoena”). We appreciate Apple’s willingness to narrow its
discovery requests and work with Google in this matter. As you know, Apple has withdrawn all
requests in the Subpoena except document categories 10-19 and deposition topics 7-16.
Source Code Production
Google has completed its production of highly confidential source code in response to the
Subpoena.
Category Nos. 10-14/Topic Nos. 7-11
During our meet-and-confer discussion of January 19, 2012, you confirmed the scope of the
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J. Jason Lang
January 31, 2012
Page 2
Google-provided functionality that Apple accuses for categories 10-14 and topics 7-11 is limited
to outputting video to an external display through an HDMI port. You also confirmed that Apple
will narrow these topics and categories to the accused Motorola lead device, the Xoom. Subject
of course to its previously stated objections, Google will respond to these requests as narrowed.
Category Nos. 15-19/Topic Nos. 12-16
During our meet-and-confer discussion of January 19, 2012, you confirmed the scope of the
Google-provided functionality that Apple accuses for categories 15-19 and topics 12-16 is
limited to what you refer to as the “slide-to-unlock” and “pattern unlock” functionalities. As
Matt Warren noted in his letter of November 23, 2011, without agreeing to your descriptions of
these functionalities, we understand what you are referring to. You also confirmed that Apple
will narrow these topics and categories to the accused Motorola lead devices, the Droid and the
Xoom. Subject of course to its previously stated objections, Google will respond to these
requests as narrowed.
Category Nos. 14, 19
These requests call for documents sufficient to describe “any advice, guidance, instruction,
service, assistance or other contribution provided by Google to Motorola or any other person” in
order to enable the accused functionality, as narrowed, “including but not limited to conception,
design, engineering, source code, manufacturing, testing, or verification of such functionality.”
As you know, Android is an open-source project, and most Android products are based on
Google’s open-source code without involvement by Google beyond writing the open-source
code itself. Some devices, sometimes called “lead devices,” are developed in cooperation with
Google. For Motorola, these lead devices are the Droid and the Xoom.
For non-lead devices, however, Motorola develops from Google’s open-source code, but Google
neither controls nor oversees this development. As a result, it is unlikely that Google has
responsive documents concerning non-lead accused Motorola devices. Nevertheless, in an
abundance of caution, we will conduct a reasonable search, including at least the engineers
responsible for the relevant functionality, for documents responsive to categories 14 and 19 that
concern the narrowed accused functionalities I have discussed above. We do not currently
believe Google has sufficient knowledge regarding this topic to tender a witness, but would be
willing to reevaluate this position after completing our document review and production.
I believe this resolves all issues regarding the Subpoena, but please let me know if it does not.
Finally, nothing in this letter is intended to waive or withdraw our objections to the Subpoena,
tendered on November 18, 2011.
Very truly yours,
/s
Kristin J. Madigan