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

Filing 145

EXHIBITS re #144 Declaration in Support, Exhibits 15-25 to Declaration of Heather H. Martin filed byGoogle Inc.. (Attachments: #1 Exhibit 16, #2 Exhibit 17, #3 Exhibit 18, #4 Exhibit 19, #5 Exhibit 20, #6 Exhibit 21, #7 Exhibit 22, #8 Exhibit 23, #9 Exhibit 24, #10 Exhibit 25)(Related document(s) #144 ) (Candido, Amy) (Filed on 4/28/2012)

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EXHIBIT 21 Hearing Transcript 9/28/11 1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION APPLE, INC., 6 PLAINTIFF, 7 VS. 8 9 SAMSUNG ELECTRONICS CO., LTD., ET AL, DEFENDANT. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ) ) ) ) ) ) ) ) ) ) CV-11-1846-LHK SAN JOSE, CALIFORNIA SEPTEMBER 28, 2011 PAGES 1-87 TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE PAUL S. GREWAL UNITED STATES DISTRICT JUDGE A P P E A R A N C E S: FOR THE PLAINTIFF: MORRISON FOERSTER BY: WESLEY OVERSON RICHARD HUNG MINN CHUNG MICHAEL JACOBS 425 MARKET STREET SAN FRANCISCO, CA 94105 FOR THE DEFENDANT: QUINN EMANUEL BY: VICTORIA MAROULIS BRETT ARNOLD KEVIN JOHNSON 555 TWIN DOLPHIN DRIVE, 5TH FL REDWOOD SHORES, CA 94065 OFFICIAL COURT REPORTER: SUMMER FISHER, CSR, CRR Apple v. Samsung Page 1 Hearing Transcript 9/28/11 1 SAN JOSE, CALIFORNIA P R O C E E D I N G S 2 (WHEREUPON, COURT CONVENED AND THE 3 4 FOLLOWING PROCEEDINGS WERE HELD:) THE COURT: 5 6 PLEASE HAVE A MR. RIVERA, WHENEVER YOU ARE READY, WOULD YOU CALL THE MATTER ON THIS MORNING'S CALENDAR THE CLERK: 9 YES, YOUR HONOR. CALLING APPLE, INC. VERSUS SAMSUNG 10 11 GOOD MORNING. SEAT. 7 8 SEPTEMBER 28, 2011 ELECTRONICS, ET AL. CASE NUMBER CV-11-1846. 12 COUNSEL, PLEASE STATE YOUR APPEARANCES. 13 MR. OVERSON: 14 APPLE, INC. THE COURT: 15 16 MS. MAROULIS: VICTORIA MAROULIS WITH QUINN EMANUEL ON BEHALF OF SAMSUNG. AND WITH ME IS MR. KEVIN JOHNSON ALSO FOR 19 20 MR OVERSON, GOOD MORNING, SIR. 17 18 WESLEY OVERSON ON BEHALF OF SAMSUNG AND BRETT ARNOLD. 21 THE COURT: 22 WELCOME BACK, MS. MAROULIS. 23 GOOD MORNING, GENTLEMAN. 24 MR. OVERSON: 25 ALL RIGHT. YOUR HONOR, MAY I ALSO INTRODUCE MR. JACOBS, MR. HUNG AND MR. MINN CHUNG. Apple v. Samsung Page 2 Hearing Transcript 9/28/11 ALSO WITH US HERE TODAY IS CYNDI WHEELER 1 2 FROM APPLE, INC. THE COURT: GOOD MORNING TO EACH OF YOU ALL RIGHT. WELL, I HAVE REVIEWED THE 3 4 AS WELL. 5 6 FILINGS WITH RESPECT TO THIS MOTION AS WELL AS 7 THE -- I SHOULD SAY, INCLUDING THE NUMEROUS 8 DECLARATIONS THAT HAVE BEEN SUBMITTED, SO I FEEL AS 9 IF I'M FAIRLY UP TO SPEED ON THE PAPER RECORD. IT IS APPLE'S MOTION, SO I WILL BEGIN 10 11 WITH COUNSEL FOR APPLE. AND BEFORE WE TURN TO THE MATTERS AT HAND 12 13 I HAD A PROCEDURAL QUESTION, I WANTED TO MAKE SURE 14 I WAS UNDERSTANDING THE POSTURE OF THIS MOTION 15 CORRECTLY. WHEN DID LEAD TRIAL COUNSEL MEET BEFORE 16 17 THIS MOTION WAS BROUGHT? MR. OVERSON: 18 19 YOUR HONOR. THE COURT: 20 21 AND WHO ATTENDED ON BEHALF OF APPLE AND WHO ATTENDED ON BEHALF OF SAMSUNG? MR. OVERSON: 22 23 THE 15TH, I BELIEVE, MR. JOHNSON FOR SAMSUNG AND MR. JACOBS FOR APPLE. 24 THE COURT: 25 AND IS IT CORRECT TO UNDERSTAND THAT Apple v. Samsung OKAY. Page 3 Hearing Transcript 9/28/11 1 MR. JACOBS AND MR. JOHNSON WILL BE TRYING THIS 2 CASE? MR. OVERSON: 3 4 YOUR HONOR. MR. JOHNSON: 5 6 YES, YOUR HONOR. IT WAS THE 16TH. THE COURT: 7 8 I CAN SAY SO FOR OUR SIDE, ALL RIGHT. I APPRECIATE THAT. MR. OVERSON: 9 THANK YOU. 10 IT WAS THE FRIDAY. 11 MR. JACOBS: IF I MAY, YOUR HONOR, JUST 12 ON THAT TOPIC BECAUSE MR. JOHNSON AND I HAVE TALKED 13 ABOUT THIS AS WELL. WE ARE ON A VERY FAST PACE ON THIS CASE 14 15 AND AS YOU MIGHT IMAGINE LEAD TRIAL COUNSEL ARE 16 PULLED IN A VARIETY OF DIFFERENT DIRECTIONS AND WE 17 HAVE BEEN TRYING TO FIGURE OUT HOW WE COULD MEET, 18 WHAT WE UNDERSTAND YOUR DESIRES TO BE TO HAVE 19 SERIOUS, REALLY INTENSE EFFORTS TO RESOLVE THESE 20 DISPUTES BEFORE THEY TEE UP TO YOU WITHOUT BOGGING 21 DOWN THE PROCESS GOING BACK AND FORTH BETWEEN THE 22 PENINSULA. 23 I DON'T KNOW IF YOU'VE SEEN ANYTHING IN 24 OTHER CASES THAT YOU HAVE FOUND SATISFACTORY AS A 25 SUBSTITUTE FOR LEAD COUNSEL MEETING AND CONFERRING Apple v. Samsung Page 4 Hearing Transcript 9/28/11 1 IN PERSON THAT YOU WOULD BE OPEN TO, BUT SINCE YOU 2 ASKED THE QUESTION I THOUGHT IT WOULD BE -THE COURT: 3 4 SURE. IT'S AN INTEREST I SUSPECT MR. JOHNSON SHARES AS WELL. WELL, FIRST EVER ALL, I THINK IT'S 5 6 IMPORTANT TO NOTE PARTICULARLY ON THE RECORD, THIS 7 IS NOT MY INTEREST, IT'S JUDGE KOH'S INTEREST AND 8 ORDER, SO I'M NOT ABOUT TO MODIFY HER ORDER WITHOUT 9 SPECIFIC DIRECTION FROM HER ON THAT. I WOULD SUGGEST THAT IF YOU FOUND THIS 10 11 PROCESS CUMBERSOME, PARTICULARLY IN THE CONTEXT OF 12 THIS FAST TRACK IN ITS PRELIMINARY INJUNCTION 13 PHASE, TWO THOUGHTS COME TO MIND. ONE, THAT PERHAPS I MIGHT SUGGEST THAT 14 15 THE BURDENS THAT YOU ALL FACE IN PRESENTING THESE 16 ISSUES ARE SIMILAR TO THE BURDEN THE COURT HAS IN 17 RESOLVING THEM, THAT OUGHT TO BE WEIGHED AND 18 CONSIDERED BEFORE BRINGING A WAVE OF MOTIONS. HAVING THAT SAID, IF YOU THINK A MORE 19 20 STREAMLINE PROCESS WOULD BE APPROPRIATE ESPECIALLY 21 NOW THAT DISCOVERY IS BEFORE MYSELF INSTEAD OF 22 JUDGE KOH, I WOULD SUGGEST A SHORT LETTER OR MOTION 23 TO JUDGE KOH WOULD BE THE APPROPRIATE COURSE. I JUST DON'T BELIEVE I HAVE JURISDICTION 24 25 TO OVERRULE THE ARTICLE III JUDGE ON THIS Apple v. Samsung Page 5 Hearing Transcript 9/28/11 1 PARTICULAR ISSUE. 2 MR. JACOBS: 3 THE COURT: 4 LET'S TURN TO THE MATTERS AT HAND. 5 SO WHY DON'T YOU BEGIN MR. OVERSON. 6 MR. OVERSON: 7 IF YOU WOULD PERMIT ME JUST A FEW MINUTES 8 THANK YOU VERY MUCH, JUDGE. ALL RIGHT. YES, YOUR HONOR. FOR CONTEXT HERE. 9 I KNOW THAT YOUR HONOR IS FAMILIAR WITH 10 THE CASE AND HAS READ THE PAPERS BUT THIS CASE IS 11 KIND OF -- THE BASIS OF THIS CASE IN THE 12 PRELIMINARY INJUNCTION MOTION IS REALLY THE 13 SIMILARITY, THE STRIKING SIMILARITY BETWEEN THE 14 DESIGNS OF THE ACCUSED PRODUCTS AND THE APPLE 15 PRODUCTS AND OF COURSE THE UNDERLYING PATENTS THAT 16 ARE AT ISSUE. THE COURT: 17 WELL, IT IS THE DESIGNS THAT 18 ARE CLAIMED IN THE PATENTS THAT ARE THE BASIS FOR 19 YOUR DESIGN PATENT INFRINGEMENT CLAIM. 20 MR. OVERSON: 21 BUT AS YOUR HONOR CAN IMAGINE, WHEN APPLE 22 SEES A PHONE THAT LOOKS LIKE -- THIS IS THE SAMSUNG 23 AND THIS IS THE APPLE IPHONE. 24 KIND OF SIMILARITY AND THE MARKET IMPACT THAT IT 25 HAS, THAT'S WHAT'S DRIVING THIS WHOLE PROCEEDING Apple v. Samsung THAT IS CORRECT. WHEN THEY SEE THIS Page 6 Hearing Transcript 9/28/11 1 AND THE URGENCY OF THE PROCEEDING. THE COURT: 2 SINCE YOU BROUGHT UP THE 3 ISSUE OF THE PRODUCTS I DID HAVE A QUESTION UNDER 4 EGYPTIAN GODDESS. IS THE DESIGN OF THE PRODUCT ITSELF 5 6 RELEVANT IN ANY WAY TO THE ANALYSIS, THE ORDINARY 7 OBSERVER ANALYSIS? MR. OVERSON: 8 I WOULD SAY THAT IN THE 9 CONTEXT OF THE PRELIMINARY INJUNCTION MOTION IT IS 10 RELEVANT BECAUSE IT GOES TO THE MARKET IMPACT AND 11 IRREPARABLE HARM. 12 THE COURT: ALL RIGHT. 13 PUTTING ASIDE THE ISSUE OF IRREPARABLE 14 HARM, WHICH I UNDERSTAND IS A PRETTY IMPORTANT PART 15 OF YOUR MOTION AND WE'LL COME BACK TO IT, STRICTLY 16 SPEAKING THOUGH UNDER THE FEDERAL CIRCUIT'S 17 PRECEDENT, WOULD THE DISTRICT JUDGE IN EVALUATING 18 THE LIKELIHOOD OF THE SUCCESS ON THE MERITS, THAT 19 PRONG OF YOUR PI MOTION, WOULD SHE BE PERMITTED TO 20 LOOK TO THE EMBODIMENTS OR MUST SHE CONSIDER HOW 21 THESE PATENTS ARE CLAIMED AND NOTHING MORE? 22 MR. OVERSON: THE ANALYSIS CERTAINLY 23 SHOULD CERTAINLY FOCUS ON THE -- 24 THE COURT: 25 I'M SAYING AS A LEGAL MATTER. Apple v. Samsung IT'S GOING TO FOCUS ON IT, Page 7 Hearing Transcript 9/28/11 MR. OVERSON: 1 2 THE CLAIMS. WE WOULD SAY IT'S TOTALLY IRRELEVANT, 3 4 -- CLAIMS, AND BRINGING OF HONOR. THE COURT: 5 SO IS IT LEGALLY PERMISSIBLE 6 UNDER FEDERAL CIRCUIT PRECEDENT FOR HER TO CONSIDER 7 THE DESIGN EMBODIMENT? 8 MR. OVERSON: 9 YOUR HONOR, THE JUDGE COULD CONSIDER. THE COURT: 10 11 ALL RIGHT. I SUSPECT WE WILL HEAR MORE ABOUT THAT. ALL RIGHT. 12 13 I WOULD SAY IT'S A FACTOR, GO ON. I'M SORRY FOR INTERRUPTING. 14 MR. OVERSON: OKAY. 15 AND WE ALSO HAVE, OF COURSE, AN IPAD II 16 AND WE HAVE THE SAMSUNG TABLET. 17 THE COURT: 18 FULL DISCLOSURE, I'VE GOT MY IPAD I UP HERE, SO LET'S GET THAT OUT ON THE TABLE. MR. OVERSON: 19 SO SAMSUNG'S POSITION IN 20 THE PRELIMINARY INJUNCTION PROCEEDINGS IS THERE WAS 21 JUST A NATURAL EVOLUTION OF PRODUCT DEVELOPMENT 22 SUCH THAT THEIR PRODUCT ENDED UP LOOKING A LOT LIKE 23 THE APPLE PRODUCTS, AND I THINK THEY HAVE TO 24 ADDRESS THE SIMILARITY, EVEN JUDGE KOH STATED ON 25 THE RECORD THAT THE PRODUCTS LOOK "STRIKINGLY Apple v. Samsung Page 8 Hearing Transcript 9/28/11 1 SIMILAR." WHETHER THERE'S A NATURAL EVOLUTION OR 2 3 SOMETHING MORE, LIKE THE COPYING OF THE APPLE 4 PRODUCT, IS VERY, VERY IMPORTANT TO THE MOTION. AND WHAT WE ARE DOING IS WE ARE SEEKING 5 6 EVIDENCE THAT IN FACT WHEN SAMSUNG CHOSE TO DEVELOP 7 PRODUCTS THAT LOOK LIKE THESE PRODUCTS DO, WHEN 8 THEY FIRST CHOSE TO GO THAT DIRECTION IN THE 9 DESIGN, DID THEY CONSIDER AND REVIEW THE APPLE 10 PRODUCTS AND MAKE A DECISION, WE WANT TO LOOK MORE 11 LIKE THAT VERY SUCCESSFUL APPLE PRODUCT. THE COURT: 12 IF I MIGHT INTERRUPT AGAIN, I 13 JUST WANT TO MAKE SURE I UNDERSTAND YOUR ARGUMENT 14 CLEARLY. IS IT APPLE'S THEORY THAT WHEN SAMSUNG 15 16 FIRST DESIGNED THESE PRODUCTS THEY WERE LOOKING AT 17 AND INDEED COPYING THE APPLE'S DESIGNS, OR IS IT 18 THE REDESIGN OR ALLEGED REDESIGN? 19 MR. OVERSON: 20 OUR THEORY AS TO THE PHONES -- THERE'S 21 YES. THREE PHONES, ONE TABLET. AS TO THE PHONES, THEY COPIED THE 22 23 IPHONES, OKAY. 24 COPIED THE IPAD. 25 THEY COPIED THE IPAD II. Apple v. Samsung AS TO THE TABLET, THEY INITIALLY THE IPAD II CAME OUT AND THEN Page 9 Hearing Transcript 9/28/11 SO SAMSUNG'S THEORY, AGAIN, IS THAT 1 2 THERE'S JUST THIS EVOLUTION, WE DIDN'T COPY. AND IF I MAY, I'VE ALREADY GIVEN TO 3 4 OPPOSING COUNSEL, I WOULD LIKE TO HAND UP TO THE 5 BENCH A SET OF REFERENCE EXHIBITS. IF YOU WOULD LOOK A TAB 1, YOUR HONOR, 6 7 AGAIN, IN THE WAY OF SETTING THE STAGE, BUT I THINK 8 IT'S IMPORTANT TO UNDERSTAND THE -- 9 MS. MAROULIS: 10 QUICK OBJECTION TO THESE EXHIBITS? 11 MATERIALS THAT WERE NEVER SUBMITTED WITH THE PAPERS 12 THAT WERE FILED. FIRST TIME NOW, THEY WERE NOT PART OF THE MOTION. THE COURT: 15 16 ALL RIGHT. I WILL NOTE YOUR OBJECTION. I JUST WANT TO GET TO THE MERITS OF THIS 17 18 THEY INCLUDE SO WE ARE NOT ONLY SEEING THEM FOR THE 13 14 YOUR HONOR, MAY I RAISE A DISPUTE. MS. MAROULIS: 19 AND TO THE EXTENT 20 MR. OVERSON WANTS TO GO INTO THE DESCRIPTION OF 21 SAMSUNG'S CONFIDENTIAL DOCUMENTS, WE WILL NEED TO 22 EXCUSE APPLE'S COUNSEL WHO IS PRESENT HERE. THE COURT: 23 AGAIN, I WILL LEAVE IT TO YOU 24 ALL TO POLICE THAT. 25 IMPLICATING PROTECTIVE ORDER, I'M SURE YOU WILL Apple v. Samsung IF THERE'S AN ISSUE Page 10 Hearing Transcript 9/28/11 1 TAKE APPROPRIATE STEPS TO REQUEST THE CLEARING OF 2 THE COURTROOM OR MOVE ON TO ANOTHER DOCUMENT. MS. MAROULIS: 3 THERE'S A NUMBER OF 4 DOCUMENTS IN MR. OVERSON'S STACK THAT ARE MARKED 5 HIGHLY CONFIDENTIAL. 6 THE COURT: WELL, LET'S TAKE THIS ONE 7 DOCUMENT AT A TIME. I REALLY WANT TO GET TO THE 8 MERITS OF YOUR DISPUTE. MR. OVERSON: 9 I UNDERSTAND, YOUR HONOR. REALLY BRIEFLY, THE ARGUMENT IS FROM 10 11 SAMSUNG'S SIDE THAT THERE'S A NATURAL EVOLUTION, 12 BUT WHAT WE CAN SEE IS THE SMARTPHONES BEFORE THE 13 IPHONE THAT SAMSUNG PUT OUT ON THE LEFT. IN THE CENTER, THE IPHONE COMES OUT ON 14 15 JANUARY 2007. THEN ON THE RIGHT ARE SOME IPHONES 16 THAT WERE DEVELOPED AFTERWARDS. 17 SAY, THE ACCUSED DEVICE IS, IN OUR VIEW, SPOT ON. THE COURT: 18 AND NEEDLESS TO NONE OF THE THREE DESIGN 19 PATENTS THAT ARE BEING ASSERTED IN THIS PI PHASE 20 CLAIM FEATURES WHICH ARE REVEALED WHILE THE 21 PRODUCTS ARE OPERATING, RIGHT? 22 IN OTHER WORDS, IT'S NOT ENTIRELY -- 23 MR. OVERSON: 24 I BELIEVE THEY ARE EXTERIOR FEATURES. 25 Apple v. Samsung THE COURT: RIGHT. Page 11 Hearing Transcript 9/28/11 SO ANY OF THESE INTERIOR ICON FEATURES, 1 2 THEY ARE NOT RELEVANT TO THE ANALYSIS, CORRECT? MR. OVERSON: 3 4 YOUR HONOR. MR. OVERSON: 5 6 NOT IN THE PI PHASE, OKAY. SO I WILL MOVE ON AND LET'S GET TO THE MERITS. I DO -- BOTH SIDES AGREE THAT COPYING 7 8 EVIDENCE IS RELEVANT IN A PI CONTEXT. 9 DON'T FARE AS WELL ON PI PROCESS BECAUSE IT'S 10 COPIERS BALANCING OF THE EQUITIES. SOMEBODY WHO IS COPYING SOMEBODY ELSE'S 11 12 PRODUCT IS NOT GOING TO GET MAYBE A BENEFIT OF THE 13 DOUBT THAT SOMEBODY WHO JUST DESIGNED THE PRODUCT 14 AND THEN IT HAPPENED TO INFRINGE. THE COURT: 15 THEY TELL YOU IN THEIR 16 OPPOSITION, CORRECT, THAT YOU HAVE NO EVIDENCE OF 17 COPYING, THEY PUT THAT ISSUE IN PLAY? MR. OVERSON: 18 19 THEY PUT THE ISSUE SQUARELY IN PLAY. AND WHAT WE'LL SEE AS A THEME THROUGH 20 21 THIS HEARING, I BELIEVE, IS THAT SAMSUNG WILL NOT 22 PRODUCE EVIDENCE THAT'S DIRECTLY RELEVANT TO THE 23 ARGUMENTS THEY WERE MAKING. 24 MANY OF THESE ISSUES INTO THE PI PROCESS AND YET 25 THEY THINK THEY CAN MAKE THE ARGUMENTS ON THE Apple v. Samsung THEY ARE INJECTING Page 12 Hearing Transcript 9/28/11 1 AFFIRMATIVE SIDE WITHOUT BACKING IT UP WITH THE 2 PRODUCTION OF THE DOCUMENTS THAT ARE RELEVANT TO 3 THOSE ARGUMENTS. SO WHAT APPLE IS LOOKING FOR IN DOCUMENT 4 5 REQUEST NUMBER 1 IS DOCUMENTS WHEREBY THE SAMSUNG 6 DECISION MAKERS AND DESIGNERS LOOK AT APPLE 7 PRODUCTS AND EVALUATED THOSE PRODUCTS AND 8 CONSIDERED THEM DURING THE PROCESS THAT THEY WERE 9 ARRIVING AT THE DECISION TO COME OUT WITH THESE 10 PRODUCTS, THE DESIGN OF THESE PRODUCTS. 11 AND IT'S A PRETTY BASIC -- 12 THE COURT: 13 ALL APPLE PRODUCTS OR ANY APPLE PRODUCT? MR. OVERSON: 14 WELL, CERTAINLY THE 15 PRODUCTS THAT ARE THE PHONES AND THE TABLETS, 16 YOUR HONOR. THE COURT: 17 SO TO BE PRECISE THE 18 EMBODIMENTS OF THE THREE DESIGN PATENTS THAT ARE 19 BEING ASSERTED IN THIS PHASE, CORRECT? MR. OVERSON: 20 21 I THINK THAT'S RIGHT, YOUR HONOR, YES. 22 THE COURT: OKAY. 23 SO WHEN YOUR PAPERS REFER TO "APPLE 24 PRODUCTS," WE'RE ALL ON THE SAME PAGE HERE, WE ARE 25 TALKING ABOUT THE EMBODIMENTS OF THOSE THREE DESIGN Apple v. Samsung Page 13 Hearing Transcript 9/28/11 1 PATENTS? MR. OVERSON: 2 3 THE MAC, YOUR HONOR. 4 THE COURT: WE ARE NOT TALKING ABOUT NOR ARE WE TALKING ABOUT 5 OTHER VERSIONS OF THESE PRODUCTS WHICH ARE NOT 6 EMBODIMENTS OF THE CLAIMS. MR. OVERSON: 7 I THINK THAT'S CORRECT. 8 DON'T THINK THERE'S ANY FURTHER EMBODIMENTS THAT 9 I NEED TO BE CONSIDERED. WHAT -- SO WHEN WE HAVE MET AND CONFERRED 10 11 ON THESE ISSUES WE HAVE GOTTEN NOWHERE. 12 ASKED, WHO HAVE YOU TALKED TO? 13 DONE TO COLLECT THESE DOCUMENTS? 14 THE COURT: 15 MR. OVERSON: WE HAVE WHO, WHAT HAVE YOU WHAT DID THEY TELL YOU? WORK PRODUCT. 16 PRODUCT OBJECTION. 17 IT'S A WORK DONE TO DO THE COLLECTION. SO THAT HAS LEFT US UP AGAINST A WALL 18 19 WHERE WE CAN'T REALLY GET FURTHER. SO THAT IS WHY IT IS CERTAINLY ONE OF THE 20 21 THEY WON'T TELL US WHAT THEY'VE REASONS WHY WE ARE HERE. THEY HAVE GIVEN US SOME DOCUMENTS AND 22 23 THEY HAVE MADE A BIG POINT IN THE PAPERS OF SAYING, 24 LOOK, WE PRODUCED THINGS. 25 DOCUMENTS. Apple v. Samsung THEY HAVE PRODUCED SOME Page 14 Hearing Transcript 9/28/11 "SOME DOCUMENTS" IS NOT WHAT THE 1 2 DISCOVERY OBLIGATIONS REQUIRE. THEY HAVE NEVER 3 SAID AND THEY DON'T SAY IN THE PAPERS, WE'VE DONE A 4 REASONABLE SEARCH, WE'VE DONE A THOROUGH JOB AND WE 5 HAVE GIVEN YOU ALL THE RESPONSIVE DOCUMENTS 6 ALREADY. THEY DO NOT SAY THAT AS TO ANY OF THESE 7 8 REQUESTS AND CERTAINLY NOT AS TO THIS ONE HAVING TO 9 DO WITH THE ANALYSIS OF APPLE PRODUCTS. WHAT THEY HAVE GIVEN US IS DISTURBING IN 10 11 THAT IT IS LARGELY NONRESPONSIVE AND REFLECTS, IN 12 OUR VIEW, DISRESPECT OF THE PROCESS. AND NOW I'M GOING TO REFER TO TAB 3 WHICH 13 14 I THINK OPPOSING COUNSEL BELIEVES CONTAINS HIGHLY 15 CONFIDENTIAL ATTORNEY'S EYES ONLY INFORMATION; IS 16 THAT CORRECT, COUNSEL? THE COURT: 17 18 BOTTOM OF THE PAGE, RIGHT? MS. MAROULIS: 19 20 MR. OVERSON: SO I'M FLAGGING THIS IN CASE YOU WISH TO HAVE -MS. MAROULIS: 23 24 THAT'S CORRECT, YOUR HONOR. 21 22 THAT'S WHAT IT SAYS ON THE AND IT WOULD BE MY REQUEST TO HAVE APPLE IN-HOUSE COUNSEL EXCUSED. 25 Apple v. Samsung THE COURT: WELL, I THINK WE TALKED ABOUT Page 15 Hearing Transcript 9/28/11 1 CLEARING THE COURTROOM THE LAST TIME. I CAN'T 2 REMEMBER WHICH COUNSEL IN THE PATENT CASE I HAD THE 3 DISCUSSION WITH IN THE PAST, BUT I'M NOT INCLINED 4 TO DO THAT. 5 I APPRECIATE THE DOCUMENTS MAY ILLUSTRATE 6 CERTAIN POINTS, I THINK SAMSUNG'S POINT HERE IS THE 7 BETTER ONE. 8 ORDER AND LET'S HAVE AN OPEN DISCUSSION ABOUT 9 WHAT'S AT STAKE HERE. LET'S NOT IMPLICATE THIS PROTECTIVE I DON'T NEED TO SEE THESE 10 PAPERS TO UNDERSTAND YOUR POINT. SO LET'S VOID ANY 11 ISSUES THAT REQUIRE ME TO LOCK THE PUBLIC 12 COURTHOUSE, OKAY. 13 MR. OVERSON: OKAY. 14 BUT YOUR HONOR, I WILL HAVE TO REFER TO 15 WHAT THE CONTENT IS OF WHAT THEY'VE PRODUCED AND I 16 KNOW THAT SAMSUNG HAS TAKEN THE POSITION THAT I 17 CAN'T DO THAT WITHOUT BREACHING THE PROTECTIVE 18 ORDER IN FRONT OF SOMEONE FROM APPLE. WE DON'T AGREE WITH THAT POSITION AS TO 19 20 THESE DOCUMENTS, WE DON'T AGREE AT ALL. I WANT TO 21 MAKE THAT CLEAR. 22 SIDE HAS SAID I CANNOT DO THIS WITHOUT BREACHING 23 THE PROTECTIVE ORDER. I'M JUST BEING RESPECTFUL OF ONE 24 THE COURT: 25 WELL, YOU KNOW I TRY TO SET THIS ON THE Apple v. Samsung ALL RIGHT. Page 16 Hearing Transcript 9/28/11 1 FAST TRACK AND BE AS AVAILABLE AND AS OPEN AS I CAN 2 WITH YOU GUYS BUT I THINK I'VE MADE MY POSITION 3 VERY CLEAR THAT I DON'T LIKE CLOSING COURTROOMS. 4 IF WE ARE GOING TO TALK ABOUT 5 CONFIDENTIALLY DESIGNATED INFORMATION, I DON'T SEE 6 AS A PROCEDURAL MATTER THAT I CAN DO ANYTHING OTHER 7 THAN LOCK THE COURTROOM. SO LET'S GET TO THE MERITS HERE, LET'S 8 9 10 AVOID ANY OF THESE ISSUES AND FOCUS ON THE ARGUMENT, ALL RIGHT? MR. OVERSON: 11 THE DOCUMENTS THAT ARE 12 PRODUCED TO US, OVER A THOUSAND PAGES OF THEM WERE 13 PICTURES, PICTURES OF THINGS THAT DON'T HAVE TO DO 14 WITH THIS CASE. 15 SO WHEN WE TAKE INTO ACCOUNT THAT THEY 16 CLAIM WE'VE DONE THIS GREAT JOB, WE PRODUCED ALL 17 THE DOCUMENTS AND THEY LIST THE BATES NUMBERS, IF 18 YOU LOOK AT PARAGRAPH 8 OF THE JENKINS 19 DECLARATION -THE COURT: 20 YOUR POINT IS THE HANDFUL OF 21 DOCUMENTS PRODUCED INCLUDE PARAGRAPHS OF BILLINGS 22 THAT HAS NOTHING TO DO WITH THIS CASE. MR. OVERSON: 23 AND MY POINT IS ALSO ALL OF 24 THE DOCUMENTS LISTED UNDER PARAGRAPH 8 OF THE 25 JENKINS DECLARATION DON'T HAVE TO DO WITH WHAT Apple v. Samsung Page 17 Hearing Transcript 9/28/11 1 WE'RE LOOKING FOR OR WHAT WAS CALLED FOR. 2 AND THEY ACTUALLY CITED TO THESE 3 DOCUMENTS IN THEIR DECLARATION AS IF THEY SUPPORTED 4 THEIR POSITION THAT THEY'D DONE A GOOD JOB ON THE 5 PRODUCTION. 6 APPLE, FOR ITS PART, HAS DONE IN-PERSON 7 INTERVIEWS, IN-PERSON COLLECTIONS, THEY HAVE DONE 8 THE E-MAIL SWEEPS, WE'VE DONE ATTORNEY REVIEW OF 9 DOCUMENTS BEFORE PRODUCTION, WE'VE DONE ALL THE 10 THINGS WE ARE SUPPOSED TO DO. WE DON'T KNOW WHAT SAMSUNG HAS DONE BUT 11 12 WHAT WE'VE SEEN IT DOES NOT LOOK LIKE THEY'VE DONE 13 THAT GOOD OF A JOB. THE COURT: 14 15 CUSTODIAN? MR. OVERSON: 16 17 HAVE YOU TOLD THEM YOUR WE HAVE. WE PRODUCED A LOT OF DOCUMENTS, WE HAVE A LOT OF DEPOSITIONS. 18 THE COURT: 19 LET'S TAKE THIS FROM THE TOP. 20 A LIST OF EACH OF THE INDIVIDUALS FROM WHOM YOU'VE 21 COLLECTED DOCUMENTS? MR. OVERSON: 22 23 YES. THEY HAVE I BELIEVE THAT THEY HAVE -THE COURT: 24 25 SO THEY HAVE A LIST. YES OR NO? DO YOU KNOW THE ANSWER? Apple v. Samsung Page 18 Hearing Transcript 9/28/11 MR. JACOBS: 1 I BELIEVE THE STATE OF PLAY 2 IS WE HAVE OFFERED THAT KIND OF TRANSPARENCY ON THE 3 PRODUCTION AND WE HAVEN'T REACHED CLOSURE. THE COURT: 4 MAYBE WE WILL GET TO THAT. 5 IT SOUNDS LIKE WE ALL AGREE THAT INFORMATION HAS 6 NOT BEEN SHARED. HAVE YOU PROVIDED A LIST OF INDIVIDUALS 7 8 WHO RECEIVED LITIGATION HOLDS IN THIS MATTER? MR. JACOBS: 9 SAME ANSWER, YOUR HONOR. 10 HAVE OFFERED AFFIRMATIVELY TO HAVE THAT KIND OF 11 TRANSPARENCY RECIPROCALLY IN BOTH SIDE'S 12 WE PRODUCTION. WE THINK THAT'S THE ONLY WAY TO GET 13 14 THROUGH A CASE LIKE THIS WITHOUT A LOT OF 15 MISUNDERSTANDINGS DOWN THE ROAD. 16 WE HAVEN'T REACHED CLOSURE. 17 THINK THEY HAVE SAID NO, BUT WE HAVEN'T REACHED 18 CLOSURE. MR. OVERSON: 19 I DON'T WE FAVOR TRANSPARENCY SO WE 20 FAVOR HAVING EVERYTHING ON THE TABLE AS TO WHAT'S 21 HAPPENED. 22 COLLECTION PROCESS, SO THE PARTIES HAVE SOME 23 CONFIDENCE IN THE RESULT. SO WHY DO WE KNOW WE HAVEN'T GOTTEN 24 25 AND THAT HAS HAPPENED DURING THE EVERYTHING? Apple v. Samsung WELL, THERE'S 13 DESIGNERS THAT HAVE Page 19 Hearing Transcript 9/28/11 1 BEEN IDENTIFIED IN INTERROGATORY ANSWERS. THE COURT: 2 THESE ARE INDIVIDUALS WHO ARE 3 IDENTIFIED IN EITHER 26(A) OR RULE 33 RESPONSES AS 4 PARTICIPATING IN THE DESIGN OF THE ACCUSED 5 PRODUCTS? 6 MR. OVERSON: 7 OUT OF THOSE 13 DESIGNERS, WE HAVE SEVEN 8 YES. E-MAILS, SEVEN TOTAL. THE COURT: 9 SEVEN E-MAILS FROM THEIR 10 FILES OR SEVEN E-MAILS ON WHICH THOSE INDIVIDUALS 11 APPEAR EITHER AS A SENDER OR RECEIVER? MR. OVERSON: 12 13 RECEIVER. SO YOU HAVEN'T RECEIVED A CUSTODIAN LOG? 16 MR. OVERSON: 17 THE COURT: 18 AS A SENDER OR I DON'T KNOW WHERE THEY CAME FROM. THE COURT: 14 15 YES. NO. IN OTHER WORDS, YOU DON'T KNOW FROM WHOSE FILES THE DOCUMENT WAS PRODUCED? 19 MR. OVERSON: NO, YOUR HONOR. 20 THERE IS ONE LEAD DESIGNER ON ONE OF THE 21 ACCUSED PHONES AND THAT LEAD DESIGNER WAS 22 IDENTIFIED IN A 30(B)(6) DEPOSITION. 23 E-MAIL FROM THAT PERSON. THE COURT: 24 25 WE HAVE ONE WHAT'S THAT INDIVIDUAL'S NAME. Apple v. Samsung Page 20 Hearing Transcript 9/28/11 1 MR. OVERSON: MIN HUNG LEE. 2 MR. CHUNG: 3 MR. OVERSON: 4 MR. CHUNG SPEAKS KOREAN. 5 THE COURT: 6 MR. OVERSON: MIN HYOUK LEE. THANK YOU. ALL RIGHT. SO WE DON'T -- IT'S VERY 7 PLAIN THAT THERE WAS NOT AN E-MAIL TYPE REVIEW. 8 HAVE -- WE DO HAVE SOME KOREANS, WE DO. THE COURT: 9 WE AN E-MAIL COLLECTION? 10 MR. OVERSON: CORRECT. 11 I'M ASSUMING, YOUR HONOR, I DON'T WANT TO 12 CAST ASPERSIONS ON OPPOSING COUNSEL, I'M ASSUMING 13 IT WASN'T COLLECTED. 14 THE COURT: WELL, TO BE FAIR, EACH OF YOU 15 IN YOUR PAPERS CAST A LOT OF ASPERSIONS AND I WAS 16 GOING TO BRING THIS UP LATER. YOU KNOW, AS I SAID THE LAST TIME, I'VE 17 18 BEEN THERE AND I KNOW WHAT IT'S LIKE TO WRITE THESE 19 BRIEFS, BUT THE INVECTIVE ON BOTH SIDES DOESN'T 20 HELP ME ANSWER THE QUESTION. SO SINCE YOU BROUGHT UP THE ISSUE OF 21 22 ASPERSIONS IN THE FUTURE, IT WOULD HELP ME GET AT 23 THE MERITS BY AVOIDING ALL THAT RHETORIC AND 24 PROVIDING SPECIFICS HERE. 25 Apple v. Samsung I HOPE THAT WON'T BE NECESSARY. Page 21 Hearing Transcript 9/28/11 MR. OVERSON: 1 YES, YOUR HONOR, I WILL 2 TAKE THAT TO HEART. OUR CONCERN IS THAT THE 3 DOCUMENTS HAVE NOT BEEN COLLECTED. 4 THE COURT: 5 MR. OVERSON: SURE, I GET THAT. AND THERE'S AN OFFICE OF 6 DEVELOPMENT AT SAMSUNG THAT APPARENTLY IS INVOLVED 7 IN DECIDING WHAT PRODUCTS ARE PURSUED AND WHICH 8 ONES ARE NOT. WE DON'T KNOW ALL OF THOSE PEOPLE AS TO 9 10 THESE PRODUCTS. WE DON'T KNOW WHO AT SAMSUNG SAID, 11 GO FORWARD WITH THIS DESIGN, WE DON'T KNOW THAT 12 INFORMATION SO IT'S HARD -- WE CANNOT JUST SAY HERE 13 ARE THE INDIVIDUALS, GO SEARCH THEIR E-MAIL BECAUSE 14 WE DON'T HAVE THAT INFORMATION. 15 THE COURT: IS IT YOUR POSITION THAT TYPE 16 OF DOCUMENT WOULD BE RESPONSIVE TO, SAY, REQUEST 17 NUMBER 1 WHICH IS THE DOCUMENT REQUEST WHICH YOU'RE 18 MOVING ON? 19 MR. OVERSON: 20 THE COURT: 21 YES. SO IF A GENTLEMAN WITH, MY APOLOGIES, I WILL CALL HIM MR. SMITH. IF MR. SMITH AT SAMSUNG HAS DECIDED WE 22 23 ARE GOING TO GO TO MARKET ON X DATE WITH THIS 24 DESIGN, THEN YOU WOULD LIKE TO KNOW THAT RIGHT? 25 Apple v. Samsung MR. OVERSON: YES. Page 22 Hearing Transcript 9/28/11 1 THE COURT: 2 HOW IS THAT E-MAIL WHICH SAYS, WE ARE 3 GOING TO GO TO MARKET ON X DAY, RESPONSIVE TO A 4 DOCUMENT REQUEST THAT IS DIRECTED SPECIFICALLY TO 5 AN ANALYSIS OF APPLE PRODUCTS? MR. OVERSON: 6 7 WELL, THE DOCUMENT -- FAIR ENOUGH. THE DOCUMENT REQUEST HAS TO DO WITH 8 9 OKAY. ANALYSIS OR CONSIDERATION OF APPLE PRODUCTS THE COURT: 10 AND WE HAVE PRODUCTS, NOW WE 11 ARE TALKING SPECIFICALLY ABOUT THE EMBODIMENTS OF 12 THE THREE DESIGN PATENTS. 13 MR. JACOBS: 14 TECHNICAL POINT HERE. 15 YOUR HONOR, IF I MAY ON A ARE WORKING ON IT. I KNOW THIS ISSUE BECAUSE WE THEY POINTED OUT IN OPPOSITION TO THE 16 17 PRELIMINARY INJUNCTION THAT WE DID NOT ANSWER AN 18 INTERROGATORY ABOUT, AND DECLARE THAT THE IPAD OR 19 IPAD II IS AN EMBODIMENT IN THE TECHNICAL SENSE OF 20 THE IPAD RELATED DESIGN PATENT THAT IS IN SUIT. 21 AND SO I WASN'T SURE WHETHER YOU WERE 22 USING THE TERM IN A TECHNICAL SENSE. 23 TALKING ABOUT THEIR COPYING. 24 WE'RE TALKING ABOUT THE COPYING OF THE IPHONE AND 25 THE IPADS, IPAD (1) OR IPAD II. Apple v. Samsung WE ARE IN THIS PROCEEDING Page 23 Hearing Transcript 9/28/11 THE COURT: 1 2 FEATURES WHICH ARE CLAIMED IN THE PATENT. MR. JACOBS: 3 WELL, WHICH LEADS TO THE 4 INFRINGEMENT OF THE PATENT. 5 WILL BE UPDATING OUR DISCOVERY RESPONSE TODAY AS TO 6 WHETHER THOSE ARE EMBODIMENTS OF THE TECHNICAL 7 LEGAL SENSE OF THE IPAD RELATED PATENT. I THINK THEY ARE GOING TO GO DOWN A PATH 8 9 AND AS IT HAPPENS, WE IN RESPONDING TO THIS ARGUMENT AND I WANTED TO HEAD 10 THAT OFF BECAUSE I SEE AGITATION AT THE OTHER 11 TABLE. THE COURT: 12 13 I'M GOING TO GIVE MS. MAROULIS AMPLE OPPORTUNITY TIME TO ADDRESS IT. MS. MAROULIS: 14 YOUR HONOR, WOULD YOU LIKE 15 ME TO ADDRESS IT NOW OR LATER? 16 THE COURT: 17 I WOULD RATHER HAVE YOUR ARGUMENT IN TOTAL. MR. OVERSON: 18 SO YOUR HONOR, ADDRESSING 19 YOUR CONCERN ABOUT THE E-MAIL, IF THE E-MAIL 20 DOESN'T HAVE ANYTHING TO DO WITH APPLE, WE 21 UNDERSTAND THAT'S NOT RESPONSIVE TO REQUEST NUMBER 22 1. IF THE EXECUTIVE SAID APPLE HAS THIS 23 24 GREAT FEATURE, WE SHOULD LOOK INTO THAT, THEN IT IS 25 RESPONSIVE. Apple v. Samsung BECAUSE IT'S GOING -- IT'S A Page 24 Hearing Transcript 9/28/11 1 CONSIDERATION OF APPLE IN THE CONTEXT OF THE 2 DEVELOPMENT OF THESE PRODUCTS AT THE DESIGN OF THE 3 PRODUCTS. 4 THE COURT: FAIR ENOUGH. 5 IF HE SAYS THE APPLE IPAD II HAS THIS 6 FEATURE AND IT'S THE FEATURE THAT'S AT ISSUE IN ONE 7 OF THE THREE DESIGN PATENTS, I UNDERSTAND YOUR 8 POINT. BUT AGAIN, IF HE'S SIMPLY COMMENTING ON 9 10 THE DESIGN OR DEVELOPMENT PRODUCT OUTSIDE OF THE 11 CONTEXT OF A COMPARISON TO APPLE, IT'S NOT 12 RESPONSIVE TO REQUEST 1. MR. OVERSON: 13 14 SO WE HAVE ADDITIONAL REQUESTS THAT WENT TO THOSE KINDS OF DOCUMENTS. 15 THE COURT: BUT THEY ARE NOT BEFORE ME. 16 MR. OVERSON: 17 WHAT WE TRIED TO DO BECAUSE OF THIS CORRECT. 18 EMERGENCY STATUS WE ARE IN WITH THE REPLY DUE IN 19 TWO DAYS WITH THE HEARING IN TWO WEEKS, WE TRIED TO 20 FOCUS ON THE ONE OF THE MOST IMPORTANT THINGS. AND ONE OF THE MOST IMPORTANT THINGS IS 21 22 THIS TYPE OF DOCUMENT WHERE THEY ARE DISCUSSING 23 APPLE PRODUCTS. 24 THE DOCUMENTS WHERE THE DESIGNERS ARE TALKING ABOUT 25 APPLE. Apple v. Samsung WHAT WE HAVE SEEN IS WE DIDN'T GET THE BUSINESS MEN ARE TALKING ABOUT APPLE. Page 25 Hearing Transcript 9/28/11 APPLE IS THE MARKET LEADER AND 1 2 CLEARLY -- 3 THE COURT: 4 MR. OVERSON: CLEARLY, HOW DO I KNOW THAT? WELL, EVEN THE 30(B)(6) 5 WITNESS SAID THAT, WHICH HAPPENED -- THE DEPOSITION 6 HAPPENED AFTER, YOUR HONOR, EVEN HE SAID THEY 7 ALWAYS EVALUATE ALL OF THE APPLE PRODUCTS. THE COURT: 8 9 WELL, IT'S ONE THING TO EVALUATE THE PRODUCTS. WHAT PROOF DO I HAVE IN THE RECORD BEFORE 10 11 ME THAT THERE ARE E-MAIL COMMUNICATIONS LOOKING AT 12 THESE CLAIMED FEATURES THAT YOU'RE NOT RECEIVING? BECAUSE THAT'S THE QUESTION I HAVE TO 13 14 ANSWER, RIGHT? I CAN'T JUST IMAGINE WHAT MIGHT BE 15 THERE, I HAVE TO LOOK AT WHAT IS THERE. MR. OVERSON: 16 HELP ME. SO THE FACTS THAT WE HAVE 17 NO E-MAILS WHATSOEVER FROM SEVERAL OF THE 18 DESIGNERS. 19 THE LEAD DESIGNER OF ONE OF THE ACCUSED PRODUCTS. 20 THE FACT THAT WOOK YAN KHO, W-O-O-K Y-A-N K-H-O, 21 WAS STATED IN AN INTERROGATORY ANSWER, THIS IS ALL 22 HAPPENING AS WE SPEAK, IT'S KIND OF REAL TIME. 23 HE CONSIDERED, THEY ADMITTED THEY CONSIDERED THE 24 APPLE PRODUCT IN THE PROCESS OF THE DESIGN. 25 HAVE NOTHING FROM HIM. Apple v. Samsung THE FACT THAT WE HAVE ONE E-MAIL FROM BUT WE Page 26 Hearing Transcript 9/28/11 THE FACT THAT AN EXECUTIVE AT SAMSUNG WAS 1 2 QUOTED IN THE PRESS AS SAYING THAT THE APPLE 3 PRODUCT WAS THINNER AND THAT THE SAMSUNG I-TABLET 4 PRODUCT WOULD HAVE TO BE REDESIGNED. THE COURT: 5 IS IT TRUE THAT STATEMENT WAS 6 LATER CORRECTED BY THE VERY SAME PERIODICAL WHICH 7 PUBLISHED IT? MR. OVERSON: 8 9 CLEARLY ESTABLISHED FROM THE OPPOSITION PAPERS. THE COURT: 10 11 I DIDN'T THINK THAT WAS MEANS. WELL, I'M NOT SURE WHAT THAT DID THEY RETRACT IT OR DIDN'T THEY? 12 MR. OVERSON: 13 THE COURT: 14 YOU ARE NOT AWARE OF ANY MR. OVERSON: I HAVE NOT SEEN THAT. AND THEY HAVEN'T GIVEN YOU EVIDENCE TO THAT EFFECT. THE ONLY THING I HAVE IS WHAT'S IN THE 17 18 I LOOKED -- RETRACTION AT ALL? 15 16 I CANNOT SEE. OPPOSITION PAPERS. BUT IN ANY EVENT, THE FACT OF WHETHER 19 20 THEY RETRACTED IT OR NOT, THERE WAS EVIDENCE 21 SOMETHING WAS SAID AND THERE WAS A FEW E-MAILS 22 ABOUT IT AFTERWARDS. OBVIOUSLY THERE'S NO DISPUTE THAT THEY -- 23 24 THE CHRONOLOGY GOES, THEY HAVE A TABLET, THE IPAD 25 II COMES OUT, IT'S THINNER, THEY REDESIGN A THINNER Apple v. Samsung Page 27 Hearing Transcript 9/28/11 1 TABLET. THAT'S JUST A FRACTION -- IT'S WITHIN A 2 PERCENTAGE POINT OR TWO OF THE THINNESS OF THE 3 APPLE PRODUCT. THE COURT: 4 AND IS THE RELATIVE THICKNESS 5 OF THE PRODUCT, I SHOULD SAY THE OBJECTIVE 6 THICKNESS OF THE PRODUCT, IS THAT AN ISSUE RELEVANT 7 TO ANY OF THE THREE DESIGN PATENTS? MR. OVERSON: 8 9 THAT'S AN ISSUE THAT'S BEEN FILED, YOUR HONOR, YES. 10 OKAY. 11 FOR HERE IS SOME FAIRNESS. 12 THERE'S NO EVIDENCE OF COPYING, APPLE HAS FAILED, 13 THEY HAVEN'T PRESENTED ANYTHING THAT SHOWS COPYING 14 AND YET THEY ARE MAKING THESE KINDS OF OBJECTIONS 15 TO OUR DOC REQUESTS AND THEY ARE NOT TELLING US 16 WHAT THEY ARE DOING IN TERMS OF THE PRODUCTION. 17 AND THEY HAVEN'T TOLD YOUR HONOR, WE PERFORMED A 18 THOROUGH SEARCH AND PRODUCED ALL RESPONSIVE 19 DOCUMENTS; THEY HAVE NOT SAID THAT. THEY ARE SAYING LOOK, WHAT WE ARE LOOKING FOR FROM YOUR HONOR 20 21 SO AGAIN, WE -- WHAT WE'RE LOOKING IS AN ORDER SAYING THEY SHOULD DO THAT. THE COURT: 22 I DON'T WANT TO JUMP AHEAD IN 23 YOUR ARGUMENT, BUT DO YOU WANT TO SPEAK 24 SPECIFICALLY TO MR. LEE'S DOCUMENTS? 25 WAS AN ISSUE THAT WAS THE SUBJECT OF A PARTICULAR Apple v. Samsung I THINK THAT Page 28 Hearing Transcript 9/28/11 1 DOCUMENT REQUEST, CORRECT? 2 MR. OVERSON: CORRECT. 3 SO MR. LEE WAS QUOTED IN THE PRESS AS 4 SAYING, WE WILL HAVE TO IMPROVE THE PARTS THAT ARE 5 INADEQUATE, APPLE MADE IT VERY THIN. SO OUR REQUEST IS VERY SIMPLE, WE WANT 6 7 THE DOCUMENTS TO/FROM FROM MR. LEE HAVING TO DO 8 WITH THAT. IT'S A VERY, VERY NARROW REQUEST. THE COURT: 9 YOU GOT SOME. MR. OVERSON: 10 WE GOT SOME AND WHEN WE MET 11 AND CONFERRED WE WEREN'T EVEN TOLD THAT THEY WOULD 12 AGREE TO SEARCH. 13 I SAID, CAN YOU AT LEAST AGREE TO SEARCH? 14 THEY SAID, WE CAN'T TELL YOU WHETHER WE WILL SEARCH 15 OR NOT. 16 SO -- 17 THE COURT: AND I'M GOING TO HEAR FROM 18 SAMSUNG AS I SAID IN JUST A MINUTE, BUT YOU ARE 19 TELLING ME IN A MEET AND CONFER ON A REQUEST 20 SPECIFICALLY DIRECTED TO THIS GENTLEMAN, BASED ON A 21 STATEMENT HE MADE IN A PUBLIC NEWSPAPER, THE 22 RESPONSE FROM OPPOSING COUNSEL, SOMEBODY SITTING AT 23 THAT TABLE WAS, WE WILL NOT COMMIT TO SEARCHING 24 THIS GENTLEMAN'S FILES? 25 Apple v. Samsung MR. OVERSON: IT WAS MS. CHAN, Page 29 Hearing Transcript 9/28/11 1 YOUR HONOR. SO SHE SAID, I CAN'T TELL YOU ONE WAY OR 2 3 MELISSA CHAN. ANOTHER WHETHER WE AGREE TO SEARCH THOSE FILES. 4 THAT'S THE ACCURATE WAY OF PUTTING IT. 5 AND WHAT DO THEY SAY IN THE PAPERS? THEY 6 ARE NOT SAYING, WE'VE DONE IT, LET'S COMPLETE THE 7 SEARCH. 8 WILL PRODUCE AFTER A REASONABLE SEARCH. 9 ESSENTIALLY CONCEDING THAT THEY HAVEN'T DONE THE 10 IN FACT, WITH THIS REQUEST THEY SAY THEY SEARCH. THE COURT: 11 12 AND THIS IS, BY THE WAY, A REQUEST YOU MADE ON AUGUST 26TH, CORRECT? 13 MR. OVERSON: 14 THE COURT: 15 THAT'S CORRECT. THE LAST DAY YOU COULD SERVE THE REQUEST. 16 MR. OVERSON: LET ME ADDRESS THAT. 17 SO WE SERVED REQUEST NUMBER 1 ON 18 JULY 12TH. IN THE INTERIM AFTER THAT THE JUDGE -- 19 JUDGE KOH SET A SCHEDULE. THE SCHEDULE CONTEMPLATED THAT APPLE 20 21 WOULD HAVE A FEW DAYS AFTER RECEIVING THE 22 OPPOSITION PAPERS FROM SAMSUNG TO ISSUE REQUESTS. 23 THEIR OPPOSITION PAPERS CAME IN ON THE 22ND OF 24 AUGUST, WE ISSUED THE REQUEST BY THE DUE DATE ON 25 THE 26TH. Apple v. Samsung Page 30 Hearing Transcript 9/28/11 SO IT IS -- THE STRUCTURE OF THE 1 2 PROCEEDING WAS SUCH THAT WE -- HAVING THE 3 OPPORTUNITY TO LOOK AT THE OPPOSITION AND THEN 4 DECIDING WHAT WE NEEDED. 5 OKAY. SO I WOULD SAY ON THE ISSUE WITH 6 MR. LEE, IT'S SIMPLY THEY ADMITTED IN THEIR 7 OPPOSITION PAPERS THAT THEY HAVEN'T DONE THE SEARCH 8 YET. SO WE BELIEVE WE DESERVE AN ORDER SAYING 9 10 THEY SHOULD DO THE SEARCH AND PRODUCE PROMPTLY. 11 AND WE WOULD SUGGEST PROMPTLY MEANS WE CAN GET TO 12 THIS AT THE END BUT PROMPTLY MEANS BY NEXT TUESDAY. THERE'S ALSO REQUESTS, YOUR HONOR, 13 14 RELATING TO MARKETING AND SURVEY DOCUMENTS. 15 THEY SAY WE HAVE PRODUCED A LOT ALREADY. 16 DON'T SAY WE'VE DONE A REASONABLE SEARCH, WE'VE 17 PRODUCED ALL RESPONSIVE DOCUMENTS. THE COURT: 18 AGAIN, THEY I HAD A QUESTION ABOUT YOUR 19 CHOICE OF LANGUAGE ON THE REQUESTS AT LEAST WITH 20 RESPECT TO EITHER ONE OR THE OTHER, I CAN'T 21 REMEMBER IF IT WAS MARKETING OR THE CONSUMER SURVEY 22 REQUEST. AS I READ YOUR REQUEST, IT REFERENCED 23 24 PRODUCTS AND THE DEFINITION OF PRODUCTS SEEMED TO 25 BE, SAMSUNG PRODUCTS, NOT APPLE PRODUCTS. Apple v. Samsung Page 31 Hearing Transcript 9/28/11 SO AM I MISREADING OR MISUNDERSTANDING 1 2 THE REQUEST ITSELF? OR AM I RIGHT? MR. OVERSON: 3 SO THERE ARE TWO DIFFERENT 4 REQUESTS THAT RELATE TO THIS SUBJECT. 5 NUMBER 214 GOES TO ALL DOCUMENTS RELATING TO THE 6 MARKETING OF PRODUCTS AT ISSUE THAT DISCUSSED OR 7 REFER DIRECTLY OR INDIRECTLY TO APPLE OR APPLE 8 PRODUCTS INCLUDING, AND THEN THERE'S A LIST AND 9 MARKETING, PLANS, MARKET SURVEYS, FOCUS GROUP 10 AND REQUEST STUDIES. SO TO THE EXTENT THAT THERE ARE APPLE 11 12 MARKET SURVEYS THAT ARE RELATED TO THESE PRODUCTS, 13 AND I CAN'T IMAGINE WHY THEY WOULD BE DOING MARKET 14 SURVEYS ON APPLE, ON THE IPHONE, IF IT DOESN'T 15 RELATE TO THIS PRODUCT. SO I BELIEVE THAT QUESTION WOULD BE 16 17 ADDRESSED BY DOCUMENT REQUEST NUMBER 214 RATHER 18 THAN 206 WHICH WE CONCEDE DOES NOT GO TO THE APPLE 19 PRODUCTS. OKAY. 20 IT'S CURIOUS HERE YOUR HONOR, AND 21 AGAIN THIS IS A THEME HERE THAT THEY ARE NOW 22 ARGUING WELL, THESE SURVEYS ARE RELEVANT BECAUSE 23 THEIR OWN IRREPARABLE HARM EXPERT MR. WAGNER HAS 24 RELIED EXTENSIVELY ON SURVEYS. 25 Apple v. Samsung AND I PUT IN THE BINDER AND I WON'T Page 32 Hearing Transcript 9/28/11 1 REFERENCE IT BECAUSE I'M TAKING YOUR DIRECTION 2 YOUR HONOR THAT I NOT DISTRACT US, BUT PARAGRAPHS 3 81 THROUGH 84 OF THE WAGNER DECLARATION GO THROUGH 4 APPLE'S LACK OF SURVEY EVIDENCE, AND MORE 5 IMPORTANTLY HIS RELIANCE ON DIFFERENT SURVEYS. THEIR EXPERT HAS USED AN APPLE SURVEY AND 6 7 SAID, SEE, THERE'S NO IRREPARABLE HARM, LOOK AT 8 THIS APPLE SURVEY THAT APPLE PRODUCED, AND SAYING 9 PEOPLE AREN'T AS INTERESTED IN THESE QUALITIES AS 10 APPLE SAYS, LOOK AT THE SURVEY, OKAY. SO THEY WON'T GIVE US THE SURVEYS ON 11 12 THEIR SIDE. I MEAN, THIS IS AN IMBALANCE THAT 13 SHOULD NOT BE ALLOWED TO -- 14 THE COURT: COULD YOU SHED SOME MORE 15 LIGHT ON MR. WAGNER'S THEORY? 16 SAYING? 17 AND I UNDERSTAND HE'S NOT YOUR EXPERT. I DON'T UNDERSTAND OR FOLLOW THE POINT, MR. OVERSON: 18 WHAT EXACTLY IS HE MR. WAGNER, I CAN HELP ON 19 THAT SINCE I TOOK HIS DEPOSITION SO I COULD HELP ON 20 THAT. 21 THE COURT: 22 MR. OVERSON: ALL RIGHT. ON THE SURVEY FRONT 23 MR. WAGNER IS LOOKING AT SURVEY RESULTS AND 24 DECIDING WHETHER THERE HAS BEEN ANY BRAND EROSION 25 OR DAMAGE TO APPLE AS A RESULT OF THE SALES OF THE Apple v. Samsung Page 33 Hearing Transcript 9/28/11 1 SAMSUNG PRODUCTS. AND ONE OF THE WAYS HE ATTEMPTS TO 2 3 BUTTRESS HIS POSITION IS BY SAYING APPLE'S BRAND IS 4 REALLY, REALLY STRONG. 5 BY THIS, PEOPLE KNOW WHAT APPLE IS. IT'S NOT GOING TO GET HURT HE ALSO LOOKS AT WHETHER DESIGN, WE ARE 6 7 TALKING LARGELY ABOUT DESIGN PATENTS, WHETHER 8 DESIGN MATTERS TO PEOPLE. HIS POSITION IS THESE SURVEYS SHOW PEOPLE 9 10 CARE ABOUT OTHER THINGS, THEY DON'T CARE ABOUT 11 DESIGN AS MUCH. THE COURT: 12 SO AS PART OF THE BODY OF 13 EVIDENCE WHICH HE POINTS TO SUPPORT THESE 14 CONCLUSIONS HE IDENTIFIES ONE OR MORE APPLE 15 SURVEYS. 16 MR. OVERSON: 17 THE COURT: CORRECT. AND SAYS, HEY, IF YOU LOOK AT 18 THAT INFORMATION YOU WILL SEE NOTHING IN HERE ABOUT 19 ANY ISSUE IN THIS CASE; FAIR ENOUGH? MR. OVERSON: 20 WELL, YOU WILL SEE RESULTS 21 THAT SHOW THAT THIS IS NOT SO IMPORTANT SO THERE'S 22 NO IRREPARABLE HARM. 23 THE COURT: 24 MR. OVERSON: 25 ALL RIGHT. SO AGAIN WE DESERVE A REPRESENTATION THAT THERE'S BEEN A REASONABLE Apple v. Samsung Page 34 Hearing Transcript 9/28/11 1 SEARCH ON ALL RESPONSIVE DOCUMENTS ON THE SURVEY 2 MARKETING FRONT HAS BEEN PRODUCED. THE SAME THING GOES FOR THE CONSUMER 3 4 CONFUSION REQUEST WHICH IS 215. SO AGAIN, LET ME GO THROUGH THE 5 6 CHRONOLOGY HERE. 7 WE ASKED FOR A CONSUMER CONFUSION RELATED 8 DOCUMENTS ON EXHIBIT E, PAGE 48 IS EXHIBIT E TO THE 9 BARTLETT DECLARATION RATHER. PAGE 48 YOU WILL SEE 10 THEIR RESPONSE, THERE WAS NOTHING ABOUT IRRELEVANCE 11 OF CONSUMER CONFUSION. 12 IN WRITING. THEY DIDN'T OBJECT ON THAT AND IN FACT THEY COULDN'T BECAUSE THEIR 13 14 OWN EXPERT HAS STATED THAT CONSUMER CONFUSION IS 15 THE KEY FACTOR THAT SHOULD BE LOOKED AT TO DECIDE 16 WHETHER THERE'S BEEN HARM TO THE BRAND EQUITY OF 17 APPLE OR NOT. 18 THE COURT: THIS IS MR. WAGNER AGAIN? 19 MR. OVERSON: 20 SO MR. WAGNER, PARAGRAPH 18, 20, 22, 31 YES. 21 OF HIS DECLARATION ALL GO ON ABOUT HOW CONSUMER 22 CONFUSION IS THE ONLY WAY THAT APPLE COULD HAVE 23 BEEN HURT. 24 ANYTHING ON THAT IN THEIR OPENING PAPERS, I FIND 25 THERE'S NO BRAND DILUTION, THERE'S NO EROSION. Apple v. Samsung AND BECAUSE APPLE DIDN'T SUBMIT Page 35 Hearing Transcript 9/28/11 THE COURT: 1 2 SO IF YOU CAN INDULGE ME FOR A MOMENT, I WANT TO MAKE SURE I'M FOLLOWING THIS. SO IN A NUT SHELL, WE ARE IN THE CONTEXT 3 4 HERE OF A PRELIMINARY INJUNCTION MOTION AND PUTTING 5 ASIDE THE UTILITY PATENT FOR THE MOMENT, WE HAVE A 6 QUESTION AS TO WHETHER UNDER EGYPTIAN GODDESS AN 7 ORDINARY OBSERVER WOULD BE ABLE TO DISTINGUISH 8 BETWEEN THE PRODUCT THAT'S ACCUSED AND THE 9 ORNAMENTAL DESIGN THAT'S CLAIMED, FAIR ENOUGH? 10 MR. OVERSON: 11 THE COURT: YES. AND THAT REALLY GOES TO THE 12 ISSUE IN THE CONTEXT OF A PI MOTION OF THE MERITS 13 OF THE CLAIM. YOUR POSITION -- YOUR ARGUMENT IS THAT 14 15 SEPARATE OR BEYOND THE MERITS QUESTION THERE'S THIS 16 QUESTION OF WHETHER YOUR CLIENT WILL SUFFER 17 IRREPARABLE HARM AS A RESULT OF OR FLOWING FROM 18 THAT INFRINGEMENT. 19 MR. OVERSON: 20 THE COURT: CORRECT. THAT'S THAT PRONG OF THE 21 ANALYSIS THAT THE CONFUSION ISSUE BECOMES RELEVANT. 22 HAVE I BASICALLY FOLLOWED YOUR ARGUMENT? 23 MR. OVERSON: 24 THE COURT: 25 MR. OVERSON: Apple v. Samsung CORRECT, YOUR HONOR. OKAY. ALL RIGHT. BUT THE ARGUMENT IS FAIRLY Page 36 Hearing Transcript 9/28/11 1 SIMPLE. WHEN YOU ARE A LITIGANT, YOU CAN'T HAVE 2 3 YOUR EXPERT GET UP AND SAY, APPLE DOESN'T HAVE ANY 4 PROOF OF THIS PARTICULAR THING, CONSUMER CONFUSION. 5 THAT'S THE ONLY WAY THAT THEY COULD HAVE BEEN 6 HARMED ON THE BRANDS. THE COURT: 7 BY THE WAY, DO YOU AGREE WITH 8 MR. WAGNER THAT IT'S A NECESSARY OR ESSENTIAL 9 CONDITION THAT APPLE DEMONSTRATE CONSUMER CONFUSION 10 IN ORDER TO SECURE A PI IN THIS CASE? 11 MR. OVERSON: 12 THE COURT: 13 NEVERTHELESS, YOUR POINT IS THAT'S HIS 14 NO. I SUSPECTED NOT. POSITION AND WE ARE ENTITLED TO TEST HIM. 15 MR. OVERSON: YES. 16 THE COURT: 17 MR. OVERSON: 18 AND SO ON THE CONSUMER CONFUSION FRONT WE OKAY. OKAY. 19 SAW IN THE OPPOSITION PAPERS A DECLARATION SAYING 20 THAT THIS WOULD BE TOO HARD, WE HAVE ALL THESE 21 CONSUMER RECORDS AND CALL DATABASES BUT THIS IS 22 JUST TOO DIFFICULT. AND TO THAT I SAY THEY'VE ADMITTED YOU 23 24 CAN'T EXPORT THE DATA INTO AN EXEL FORMAT AND THEN 25 IT'S SEARCHABLE. Apple v. Samsung Page 37 Hearing Transcript 9/28/11 AND THE FACT THAT IT'S DIFFICULT, THERE'S 1 2 A LOT OF THINGS DIFFICULT IN THIS CASE. 3 FACT THAT THEY WAITED THIS LONG TO THINK ABOUT 4 DOING IT IS ALSO DISTURBING. THE COURT: 5 AND THE WELL, SHORT OF GETTING 6 SAMSUNG'S SUPPORT ORGANIZATION TO EXPORT ITS 7 ENTIRE, I CAN'T IMAGINE THE SIZE OF THEIR DATABASE 8 SYSTEM, WHAT LIMITATIONS HAVE YOU PROPOSED OR 9 OFFERED TO MINIMIZE THAT BURDEN? 10 WHAT WOULD YOU HAVE IN MIND? SURELY YOU 11 DON'T WANT TO KNOW ABOUT EVERY COMPLAINT OF EVERY 12 SAMSUNG TOASTER, FOR EXAMPLE, RIGHT? 13 MR. OVERSON: YOU ARE ABSOLUTELY RIGHT. 14 AND SO WHAT WE WOULD PROPOSE IS THAT -- I 15 MEAN, WE COULD COME UP WITH A LIST OF TEN SEARCH 16 TERMS TODAY. THE COURT: 17 18 TO THEM? MR. OVERSON: 19 20 HAVE YOU MADE THAT PROPOSAL I HAVE NOT GIVEN THEM SPECIFIC TERMS. 21 THE COURT: 22 MR. OVERSON: ALL RIGHT. BUT WE WOULD -- WE COULD 23 COME UP WITH A LIST OF SEARCH TERMS AND THEY WOULD 24 BE THINGS LIKE IPAD, APPLE, THERE WOULD BE MAYBE 25 FACE TIME, APPLICATIONS THAT RUN ON APPLE BUT NOT Apple v. Samsung Page 38 Hearing Transcript 9/28/11 1 ON SAMSUNG, MAYBE ITUNES. 2 SEARCH TERMS WE WOULD BE TALKING ABOUT. THE COURT: 3 THOSE ARE THE KINDS OF SO I TAKE IT THE KIND OF 4 RECORD YOU ARE MOST INTERESTED IN IS SOMETHING LIKE 5 THE FOLLOWING: 6 IN SAN JOSE, CALIFORNIA TO THE SAMSUNG HELP DESK 7 THAT THEIR TABLET OR THEIR PHONE DOESN'T HAVE QUOTE 8 "THE FEEL OR THE FEATURE THAT THE IPAD HAS," WHICH 9 HAPPENS TO BE CLAIMED IN YOUR PATENT. IS THAT THE KIND OF THING YOU ARE TRYING 10 11 TO GET AT? MR. OVERSON: 12 13 THE FEEL. CERTAINLY WE BELIEVE IT HAS SO IT'S MORE THE FEATURE. THE COURT: 14 15 A COMPLAINT FROM AN INDIVIDUAL HERE YOU WOULD LIKE SOME EVIDENCE THAT THE PUBLIC AGREES WITH YOU, RIGHT? MR. OVERSON: 16 THE PUBLIC, WE BELIEVE THAT 17 THERE WILL BE EVIDENCE THAT THE PUBLIC THOUGHT THEY 18 COULD RUN THEIR ITUNES ON THE SAMSUNG PHONE, THE 19 ACCUSED PHONE. 20 THE COURT: 21 MR. OVERSON: 22 SO THE OTHER OBJECTIONS I THOUGHT WERE 23 MOSTLY TO -- WERE, WE THOUGHT, WERE NOT TERRIBLY 24 STRONG LIKE THAT. 25 THAT IT MIGHT NOT WORK, AND WE CAN DEAL WITH THAT. Apple v. Samsung ALL RIGHT. OKAY. THERE MIGHT BE MISSPELLINGS, Page 39 Hearing Transcript 9/28/11 I THINK THE KEY THING IS COMING UP WITH A 1 2 LIST OF TERMS AND DOING IT. FINALLY, I WANT TO CLARIFY ON SANCTIONS. 3 4 WE DID NOT FILE A SEPARATE SANCTIONS MOTION AND THE 5 PROPOSED ORDER DOESN'T SAY ISSUE SANCTIONS, 6 YOUR HONOR. THE COURT: 7 8 MOTION FOR SANCTIONS BEFORE ME AS A LOCAL RULE. MR. OVERSON: 9 CORRECT. AND THIS WAS NOT INTENDED TO BE A 10 11 WHICH MEANS I DON'T HAVE A SANCTIONS MOTION, THAT'S WHY WE DID NOT DO THAT. WHAT WE ARE ASKING FOR IS AN ORDER TO 12 13 PRODUCE BY A DATE CERTAIN. OUR REPLY IS DUE 14 FRIDAY, WE UNDERSTAND THAT'S NOT GOING TO BE 15 REALISTIC BUT WE ARE ASKING THAT THE COURT MAKE 16 THAT DATE CERTAIN, BE NEXT TUESDAY. A LOT OF THESE DOCUMENTS ARE GOING TO 17 18 COME IN KOREAN. 19 MR. CHUNG WHO SPEAKS KOREAN ON OUR TEAM, BUT IT'S 20 GOING TO TAKE US SOME TIME TO PROCESS THAT. 21 ARE GOING TO WANT TO TRY TO PROCESS THESE DOCUMENTS 22 FOR PURPOSES OF USE IN THE PI PROCEEDINGS. THE COURT: 23 24 WE ARE VERY FORTUNATE TO HAVE AND WE AND YOUR PI HEARING BEFORE JUDGE KOH IS ON THE 13TH? 25 Apple v. Samsung MR. OVERSON: CORRECT. Page 40 Hearing Transcript 9/28/11 1 SO WE WOULD ALSO ASK THAT WE, WHEN THE 2 PRODUCTION HAPPENS WE GET A LETTER FROM OPPOSING 3 COUNSEL CERTIFYING THAT A REASONABLE SEARCH HAS 4 BEEN DONE INCLUDING IN KOREA. AND FINALLY, WE REQUEST THAT THERE BE 5 6 ORDERED -- THAT WE GET A DEPOSITION OF A 30(B)(6) 7 WITNESS ABOUT THE COLLECTION PROCESS. WITHOUT THIS ORDER WE WILL NOT GET ANY 8 9 INFORMATION BECAUSE WE'RE TOLD IT'S WORTH NOTHING. THE COURT: 10 11 NOTICE TO THAT EFFECT? 12 MR. OVERSON: HAVE YOU SERVED A DEPOSITION WE HAVEN'T BECAUSE WE ARE 13 PAST THE TIME AND THERE'S OBJECTIONS ALREADY ABOUT 14 BEING PAST THE TIME. SO WE DIDN'T ANTICIPATE THAT WE WOULD 15 16 HAVE HAD THIS KIND OF PROBLEM. I'M ABOUT TO SIT DOWN, THERE HAS TO BE 17 18 SOME CONSEQUENCES THOUGH. WE DIDN'T MOVE FOR A 19 SANCTION MOTION HERE BUT THERE HAS TO BE SOME 20 CONSEQUENCES IF WE JUST DON'T GET THE INFORMATION. 21 IF THEY'RE DELAYED, DELAYED, DELAYED AND 22 WE ARE TWO WEEKS BEFORE THE HEARING AND THEY ARE 23 PAST THE DEADLINE AND NOW THEY ARE DOING A 24 REASONABLE SEARCH ON THESE THINGS, THERE SHOULD BE 25 SOME CONSEQUENCES NOW TO SAMSUNG. Apple v. Samsung Page 41 Hearing Transcript 9/28/11 AND WE WOULD ASK YOUR HONOR THAT IF 1 2 YOUR HONOR AGREES THEY HAVE TO PRODUCE BY A DATE 3 CERTAIN THAT WE BE GIVEN THE OPPORTUNITY TO COME 4 RIGHT BACK IN IF SOMEHOW THAT DOESN'T HAPPEN. 5 THE COURT: 6 YOU WILL HAVE SOME OPPORTUNITY FOR 7 ALL RIGHT. REBUTTAL AS WELL. 8 THANK YOU FOR YOUR ARGUMENT. 9 MS. MAROULIS? 10 MS. MAROULIS: 11 THANK YOU FOR LISTENING TO US ON THE 12 GOOD MORNING, YOUR HONOR. SHORT NOTICE. I WANT TO BEGIN WITH THE QUESTION 13 14 YOUR HONOR POSED FOR COUNSEL FOR APPLE EARLIER IN 15 THE ARGUMENT WHICH IS THE SIMILARITY OF PRODUCT 16 MATTER IN THE PATENT DESIGN INFRINGEMENT CASE. AND THE FEDERAL CIRCUIT LAW SAYS IT DOES 17 18 NOT MATTER. THERE'S LAW THAT WE CITED -- 19 THE COURT: THAT'S WHAT SUN HILL SAYS. 20 MS. MAROULIS: SUN HILL, KEYSTONE AND 21 MANY OTHER CASES THAT SAY FOR THE PURPOSES OF 22 LIABILITY YOU COMPARE ACCUSED PRODUCT TO AN 23 ASSERTED DESIGN PATENT AND SPECIFICALLY THE 24 FEATURES THAT ARE ASSERTED. 25 Apple v. Samsung SO THE FIRST ORDER OF BUSINESS IS THAT Page 42 Hearing Transcript 9/28/11 1 ANY ALLEGED SIMILARITY OF PRODUCTS IS NOT REALLY 2 RELEVANT FOR THEIR PI MOTION. THE SECOND IS, AND I CAN SAY THAT BECAUSE 3 4 I THINK THE ONLY PERSON IN THE AUDIENCE IS APPLE 5 COUNSEL, IN THEIR INTERROGATORY RESPONSES THEY 6 ADMITTED THAT IPAD II OR IPAD IS NOT AN EMBODIMENT 7 OF THEIR PATENT THAT COVERS THE TABS. SO MR. JACOBS HERE REPRESENTED THEY WERE 8 9 10 GOING TO CHANGE THE INTERROGATORY. IT SOUNDS LIKE THEY WANT TO CHANGE IT FROM YES TO NO, ERRATICALLY. BUT THE RECORD SHOWS THE TAB IS NOT AN 11 12 EMBODIMENT OR THE IPAD IS NOT AN EMBODIMENT OF THE 13 PATENT. AND THAT'S A VERY SIGNIFICANT ISSUE 14 15 BECAUSE PART OF MR. OVERSON'S ARGUMENT FOCUSED ON 16 THAT STATEMENT BY LEE DON-JOO, ONE OF THE 17 EXECUTIVES FROM SAMSUNG, RELATED TO THE IPAD II. 18 AND WHILE WE HAVE PRODUCED A NUMBER OF 19 DOCUMENTS RELATED TO THE STATEMENTS, WE ARE 20 POSITIVE THIS IS NOT RELEVANT TO THE PRELIMINARY 21 INJUNCTION MOTION WHICH IS FUNDAMENTALLY ABOUT 22 ALLEGED PATENT INFRINGEMENT. THE COURT: 23 WELL, I THINK YOU UNDOUBTEDLY 24 HEARD WHAT I HAD POSED TO OPPOSING COUNSEL JUST A 25 FEW MOMENTS AGO. Apple v. Samsung Page 43 Hearing Transcript 9/28/11 I TEND TO AGREE THAT FOR PURPOSES OF 1 2 LIABILITY OR MERITS ASSESSMENT EGYPTIAN GODDESS, 3 SUN HILL SET THE METES AND BOUNDS OF WHAT'S 4 APPROPRIATE FOR DISCOVERY. BUT A MOTION FOR PI ADDRESSES THE MORE 5 6 FUNDAMENTAL OR BROADER QUESTION OF IRREPARABLE 7 HARM, DOES IT NOT? DOESN'T THAT HARM ANALYSIS GO BEYOND 8 9 10 SIMPLY WHETHER THIS PARTICULAR FEATURE HAPPENS TO INFRINGE THEIR CLAIM? 11 MS. MAROULIS: YES, YOUR HONOR. 12 AND FOR THAT REASON WE HAVE PRODUCED A 13 NUMBER OF DOCUMENTS THAT ARE CUSTOMER SURVEYS IN 14 VARIOUS MARKETING DOCUMENTS THAT OTHERWISE WOULD BE 15 COMPLETELY IRRELEVANT TO THE PATENT CASES BECAUSE 16 OUR EXPERT DID RELY ON VARIOUS PUBLICLY AVAILABLE 17 SURVEYS. 18 SO ONE OF THEIR REQUESTS GOES TO -- 19 THE COURT: 20 AVAILABLE SURVEYS? MS. MAROULIS: 21 22 MR. WAGNER RELIED ON SOME PUBLICLY AVAILABLE DATA AND SOME PRODUCED BY APPLE. BUT THERE ARE BASICALLY TWO TYPES OF 23 24 THESE WERE ALL PUBLICLY ISSUES BEFORE YOUR HONOR TODAY: 25 Apple v. Samsung THE FOUR CATEGORIES OF DOCUMENTS WHICH Page 44 Hearing Transcript 9/28/11 1 SAMSUNG HAS ALREADY PRODUCED AND WHICH WE BELIEVE 2 THE COMPLAINTS ARE WARRANTED. AND THERE'S ONE CATEGORY OF DOCUMENTS 3 4 THAT SAMSUNG BELIEVES IS IN DISPUTE, THE ONLY ONE 5 IN DISPUTE AND THAT'S THE DOCUMENTS GOING TO THE 6 CUSTOMER CONFUSION OR ALLEGED CONFUSION. SO WITH RESPECT TO THE FIRST SET OF 7 8 ISSUES WHICH IS FOUR DIFFERENT CATEGORIES OF 9 DOCUMENTS, WE BELIEVE THAT THE RECORD IS CLEAR FROM 10 THE JENKINS DECLARATION AND FROM OUR BRIEF AND 11 OTHERWISE THAT WE'VE PRODUCED DOCUMENTS AFTER 12 REASONABLE SEARCH THAT ANSWER THESE REQUESTS. THE COURT: 13 IS IT YOUR POSITION YOU HAVE 14 PRODUCED ALL DOCUMENTS WHICH HAVE BEEN IDENTIFIED 15 AFTER A REASONABLE SEARCH? MS. MAROULIS: 16 YOUR HONOR, IT'S ALWAYS 17 HARD TO SAY ALL DOCUMENTS WITH A COMPANY OF THAT 18 SIZE. 19 THE COURT: 20 MS. MAROULIS: 21 THAT'S WHY I'M ASKING. I THINK NOBODY CAN MAKE A REPRESENTATION. BUT IT'S CLEAR FROM OUR DECLARATIONS THAT 22 23 WE'VE CONDUCTED THE SEARCH AND WE CAME UP WITH A 24 NUMBER OF DOCUMENTS. 25 THAT APPLE COUNSEL RIDICULED, BUT THOSE DOCUMENTS Apple v. Samsung THERE'S A NUMBER OF DOCUMENTS Page 45 Hearing Transcript 9/28/11 1 COME FROM THE DESIGNER FILES OF SAMSUNG EMPLOYEES 2 AND THEY WERE THEMSELVES INQUIRING DEPOSITIONS 3 ABOUT SOURCE OF INSPIRATION. SO THOSE ARE THE DOCUMENTS THAT PROVIDE 4 5 SOURCE OF INSPIRATION. THE COURT: 6 REALLY? THE EXTERIOR OF A 7 BUILDING WAS SOURCE OF INSPIRATION FOR ONE OF THE 8 PRODUCTS? MS. MAROULIS: 9 10 DESIGNERS COLLECT IDEAS. THE COURT: 11 12 APPARENTLY THIS IS THE WAY THAT'S YOUR POSITION? THAT'S WHAT THEY ARE TELLING YOU? MS. MAROULIS: 13 YOUR HONOR, IT COMES FROM 14 THE DESIGNERS' FILES DIRECTLY AND I WOULD RATHER 15 NOT GO FURTHER INTO THAT TO AVOID PROTECTIVE ORDER 16 ISSUES. 17 THE COURT: ALL RIGHT. 18 MS. MAROULIS: AMONG THE DOCUMENTS WE 19 PRODUCED ARE A LOT OF CATEGORIES THAT EXHAUSTIVELY 20 ADDRESS THE ISSUE OF -- FOR EXAMPLE, TWO WEEKS AGO 21 WE WERE BEFORE YOUR HONOR AND APPLE COUNSEL WAS 22 MAKING ARGUMENT THAT CAD TIMES ARE THE AND ALL AND 23 BE ALL. WE PRODUCED THE CAD FILES. 24 25 CAD FILES. Apple v. Samsung THEY HAVE OUR THE CAD FILES SPAN BACK, THEY CAN LOOK Page 46 Hearing Transcript 9/28/11 1 AT ITERATIONS OF DESIGN AND MAKE CONCLUSIONS. THE COURT: 2 WHAT ABOUT SKETCHBOOKS? YOU 3 WERE VERY PERSUASIVE IN EXPLAINING THE SIGNIFICANCE 4 OF SKETCHBOOKS. MS. MAROULIS: 5 6 BELONG TO THE INVENTORS OF THE PATENTS. THE COURT: 7 8 YOUR HONOR, THE SKETCHBOOK THEY DON'T HAVE SIMILAR SKETCHBOOKS? MS. MAROULIS: 9 10 SKETCHBOOKS. 11 WE DON'T HAVE SIMILAR WE HAVE LOOSE NOTES AND PRESENTATIONS THAT HAVE BEEN PRODUCED. SO IN THE JENKINS DECLARATION THERE'S A 12 13 LIST OF DIFFERENT CATEGORIES OF DESIGN DOCUMENTS 14 THAT HAVE BEEN PRODUCED. BUT WHAT YOUR HONOR FOCUSED ON EARLIER 15 16 CORRECTLY IS THAT REQUEST 1 ACTUALLY DOESN'T GO TO 17 ALL DESIGN DOCUMENTS, IT GOES TO DOCUMENTS WHERE 18 THERE WAS ANY COMPARISON OF THE TIMES. SO IN THE PRODUCTION AS A WHOLE, WE 19 20 PRODUCED DOCUMENTS REGARDING MARKET ANALYSIS OF 21 APPLE PRODUCTS INCLUDING DOCUMENTS LOOKING AT THE 22 INTERNALS OF THE IPHONES, THE TEAR DOWNS. 23 DOCUMENTS WERE IN THE PRODUCTION. BUT IN PRODUCING OUR DESIGN DOCUMENTS WE 24 25 SO THOSE ARE NOT OBLIGATED TO MANUFACTURE DOCUMENTS THAT Apple v. Samsung Page 47 Hearing Transcript 9/28/11 1 DON'T EXIST. 2 DOCUMENT, A DOCUMENT THAT SAYS WE COPIED SOMETHING 3 FROM APPLE. WE DON'T HAVE THOSE DOCUMENTS. WE HAVE TAKEN A 30(B)(6) DEPOSITION LAST 4 5 THEY ARE LOOKING FOR A SMOKING GUN WEEK -THE COURT: 6 WELL, JUST TO BE PRECISE, 7 THEIR POSITION, THEIR REPRESENTATIONS THAT YOU HAVE 8 NOT IDENTIFIED ANY SUCH DOCUMENTS BASED ON THE 9 INVESTIGATION YOU HAVE DONE TODAY. I THINK YOU JUST TOLD ME EARLIER YOU 10 11 CAN'T STAND HERE AND MAKE A REPRESENTATION THAT NO 12 SUCH DOCUMENT EXISTS OF YOUR CLIENT BECAUSE YOU 13 DON'T KNOW. MS. MAROULIS: 14 15 THAT'S CORRECT, YOUR HONOR. BUT I DO WANT TO TALK BRIEFLY ABOUT THE 16 17 30(B)(6) DEPOSITION OF A SAMSUNG REPRESENTATIVE WHO 18 ASKS SPECIFICALLY WHETHER HE INTERVIEWED THE 19 DESIGNERS OF THE PRODUCTS AT ISSUE. HE TESTIFIED HE SPOKE WITH ALL OF THEM 20 21 AND INQUIRED EXTENSIVELY WHETHER ANY OF THEM 22 CONSIDERED APPLE PRODUCTS WHEN DESIGNING THEIR 23 PRODUCTS, NOT JUST COPYING, BUT ANY CONSIDERATION 24 OF FRAME OF REFERENCE. 25 NOT. Apple v. Samsung THEY TESTIFIED THEY HAVE Page 48 Hearing Transcript 9/28/11 THE COURT: 1 2 SO HE SPOKE WITH EACH OF THESE 13 INDIVIDUALS? MS. MAROULIS: 3 HE SPOKE WITH MAYBE 7 OR 8 4 INDIVIDUALS, HE SPOKE WITH PRINCIPAL DESIGNERS FOR 5 ALL OF THE FOUR PRODUCTS AT ISSUE. THE COURT: 6 IT IS TRUE THOUGH, IS IT NOT, 7 THAT THERE WERE 13 PEOPLE IDENTIFIED IN YOUR 8 INTERROGATORY IN 26(A) RESPONSES? 9 MS. MAROULIS: THINKING BACK ACTUALLY, HE 10 HAS TALKED TO EVERYONE WHO WAS IDENTIFIED IN 11 INTERROGATORY 1 RESPONSE. 12 STANDING HERE NOW HE TALKED TO EVERYONE IN THE 13 INITIAL DISCLOSURES. 14 HE DID SPEAK WITH INDIVIDUALS FROM INTERROGATORY 1. BUT I CANNOT SAY THAT'S THE DIFFERENCE. BUT 15 THE COURT: ALL RIGHT. 16 SO AS TO INTERROGATORY 1, OR ANY OF THE 17 OTHER INDIVIDUALS IN 26(A) RESPONSES, HAVE 18 DOCUMENTS BEEN COLLECTED? MS. MAROULIS: 19 DOCUMENTS HAVE BEEN 20 COLLECTED FROM INDIVIDUALS LISTED IN THE 21 INTERROGATORY 1 TO THE EXTENT THEY HAD THEM, AND 22 ADDITIONAL INDIVIDUALS TOO. 23 WERE FAIRLY WIDE RANGING. 24 THE COURT: 25 MS. MAROULIS: Apple v. Samsung THE DOCUMENT EFFORTS OKAY. AND HERE IF YOUR HONOR Page 49 Hearing Transcript 9/28/11 1 DOES REFER SECOND, WE HEARD TODAY THE OFFERS OF 2 TRANSPARENCY FROM APPLE ABOUT THEIR CUSTODIAN 3 INFORMATION, THAT'S THE FIRST TIME WE'VE HEARD 4 ABOUT THIS. WE ASKED IN DEPOSITIONS, MR. JOHNSON 5 6 ASKED IN THE BUCHAKJIAN DEPOSITION ABOUT HOW THEY 7 COLLECTED DOCUMENTS, WHAT STEPS THEY TOOK, AND WORK 8 PRODUCT OBJECTION WAS MADE. 9 SO TO THE EXTENT THERE'S GOING TO BE ANY 10 TRANSPARENCY GOING FORWARD, IT HAS TO BE OBVIOUSLY 11 A TWO-WAY STREET, BUT TO DATE THERE HASN'T BEEN 12 THAT TRANSPARENCY. 13 THE COURT: WHAT'S YOUR POSITION ON THAT? 14 I UNDERSTAND YOU WANT TO HAVE THE SAME 15 RULES APPLY, YOU ARE ENTITLED THAT SENSE OF 16 RECIPROCITY. WHAT DO YOU PROPOSE HERE, A DISCLOSURE OF 17 18 SUCH INFORMATION OR NOT? MS. MAROULIS: 19 YOUR HONOR, IN SOME OTHER 20 LITIGATIONS WE ARRIVED AT AGREEMENTS WHERE YOU 21 EXCHANGE CUSTODIAN LISTS AND MUTUALLY AGREEABLE 22 SEARCH TERMS. 23 IT'S FREQUENTLY DONE. I THINK THAT ONCE WE GET PAST THE 24 25 THAT IS ACCEPTABLE PRACTICES AND PRELIMINARY INJUNCTION STAGE AND HAVE MORE TIME Apple v. Samsung Page 50 Hearing Transcript 9/28/11 1 COLLECTIVELY, WE WILL WORK THAT POSITION OUT. BUT LET IT BE CLEAR THIS IS THE FIRST 2 3 TIME APPLE REQUESTED IT ALL AND THEY CERTAINLY 4 DIDN'T OFFER IT UNTIL THIS HEARING TOWARD US, AND 5 SO IT'S SOMETHING THAT HELPS LITIGATION TO PROCEED 6 EFFICIENTLY, BUT IN A CONTEXT OF VERY COMPRESSED 7 DISCOVERY PERIOD. 8 PARTIES HERE. AND THE FRAMEWORK OF THIS -- 9 THE COURT: 10 11 IT HAS NOT BEEN DONE WITH THE WELL, IF I CAN JUST STOP YOU THERE. I ACCEPT WHAT YOU ARE SAYING FOR THE 12 13 MOMENT, BUT WHAT I'M MORE INTERESTED IN IS, IN THIS 14 CONTEXT WE ARE HERE IN THE CONTEXT OF THE 15 PRELIMINARY INJUNCTION AND I AGREE THIS IS 16 CERTAINLY THE FIRST TIME I'VE HEARD ABOUT THIS 17 ISSUE. 18 MAKE THAT DISCLOSURE TO EACH OTHER OR NOT? 19 APPLE SAY WE WANT TO MAKE THAT DISCLOSURE, WHAT'S 20 SAMSUNG'S POSITION? WHAT IS YOUR POSITION? MS. MAROULIS: 21 SHOULD THE PARTIES I HEARD WE WOULD BE UPON WILLING 22 TO COME UP WITH A LIST OF CUSTODIANS, YOUR HONOR. 23 THE DOCUMENT COLLECTION WAS DONE PRETTY 24 QUICKLY AND IT WAS PRETTY FAR REACHING, SO WE'LL 25 RETRACE THE STEPS AND IF NECESSARY PROVIDE THE Apple v. Samsung Page 51 Hearing Transcript 9/28/11 1 LISTS. BUT I DON'T THINK IT'S NECESSARY THIS 2 3 INSTANCE BECAUSE OUR PRODUCTION IS FAR MORE 4 EXTENSIVE THAN APPLE AT THE MOMENT. 5 IF YOU COMPARE THE PURE NUMBERS, WE 6 PRODUCED MORE THAN 30,000 PAGES THEY PRODUCED 7 14,000 PAGES. 8 DEPOSITION, THEY HAVE DONE SIX. 9 E-MAILS TO THEIR 600. WE PRODUCED NINE WITNESSES FOR WE HAVE 1500 SO IF ANYONE SHOULD BE COMPLAINING ABOUT 10 11 POSITIVE PRODUCTION IT SHOULD BE US. 12 ACTUALLY COMPLAINED TWO WEEKS AGO ABOUT VERY 13 SPECIFIC THINGS WE KNEW EXISTED WERE RELEVANT AND 14 WERE BEING WITHHELD. 15 COMPLAINING ABOUT THINGS THEY THINK SHOULD EXIST. THE COURT: 16 17 BUT WE BY CONTRAST APPLE IS WELL, YOU MAY BE RIGHT ABOUT THAT BUT NONETHELESS THE ISSUE REMAINS. LET'S FOCUS ON THE SPECIFIC 13 18 19 INDIVIDUALS. I HAVE BEEN TOLD, AND I HAVEN'T 20 VERIFIED THIS SO ALL OF YOU CAN BEAR WITH ME FOR A 21 MOMENT, I HAVE BEEN TOLD YOU IDENTIFIED 13 PEOPLE 22 WHO PARTICIPATED IN THE DESIGN PROCESS OF THESE 23 ACCUSED PRODUCTS. 24 MS. MAROULIS: 25 THE COURT: Apple v. Samsung YES, YOUR HONOR. WERE EACH OF THOSE 13 Page 52 Hearing Transcript 9/28/11 1 INDIVIDUALS INTERVIEWED FOR POSSIBLE COLLECTION AND 2 PRODUCTION? 3 MS. MAROULIS: 4 THE COURT: 5 MS. MAROULIS: 6 YOUR HONOR, I BELIEVE SO. OKAY. BUT I DO NOT REPRESENT HUNDRED PERCENT RIGHT NOW AS TO THE 13 INDIVIDUALS. 7 THE COURT: 8 SO AT LEAST SITTING HERE TODAY YOU CANNOT 9 10 ALL RIGHT. REPRESENT TO ME THAT ALL 13 HAVE BEEN INTERVIEWED, CORRECT? MS. MAROULIS: 11 I KNOW A NUMBER OF 12 DESIGNERS WERE INTERVIEWED AND A NUMBER OF THEIR 13 DOCUMENTS COLLECTED. 14 13 THAT WERE INTERVIEWED, IT'S ACTUALLY MORE THAN 15 THAT. 16 THE COURT THAT ALL 13 WERE INTERVIEWED WHEN IN FACT 17 IT WAS 12 PLUS ANOTHER 20 AND ONE WAS MISSING. 19 BUT I DON'T WANT TO MAKE A REPRESENTATION TO THE COURT: 18 WHETHER OR NOT IT'S THE EXACT LET ME BE AS TRANSPARENT AS I AM SUGGESTING YOU ALL MIGHT WANT TO BE. 20 I DON'T RELISH THE OPPORTUNITY TO SIT 21 HERE AND NANNY THIS MEET AND CONFER PROCESS BUT 22 IT'S OBVIOUS TO ME THAT SOMETHING NEEDS TO BE DONE 23 BECAUSE SITTING HERE TODAY IN THE MIDDLE A VERY 24 COMMERCIALLY SIGNIFICANT DISPUTE, NEITHER ONE OF 25 YOU EVEN KNOWS OR CAN TELL ME WHAT CUSTODIANS HAVE Apple v. Samsung Page 53 Hearing Transcript 9/28/11 1 BEEN INTERVIEWED. I FIND THAT SURPRISING. SO WE DON'T KNOW WHETHER ALL 13 HAVE BEEN 2 3 INTERVIEWED. AS TO THOSE INDIVIDUALS WHO WERE 4 INTERVIEWED, CAN YOU TELL ME WERE THEIR INDIVIDUAL 5 HARD DRIVES WERE SEARCHED? MS. MAROULIS: 6 YOUR HONOR, IF THEY WERE, 7 AND IF YOU WANT ME TO GO INTO ANY FURTHER DETAIL 8 ABOUT THEIR DOCUMENTS I THINK I NEED TO EXCUSE 9 APPLE IN-HOUSE COUNSEL. 10 THE COURT: 11 WELL, AGAIN, I DON'T RELISH THIS 12 OPPORTUNITY BUT I'M GOING HAVE TO ASK APPLE COUNSEL 13 TO STEP OUTSIDE AND I WILL NOTE FOR THE RECORD THAT 14 THE ONLY INDIVIDUALS REMAINING IN THIS COURTROOM 15 ARE MEMBERS OF THE COURT PERSONNEL AND PARTIES. MR. OVERSON: 16 17 ON BEHALF OF APPLE WE WOULD OBJECT BECAUSE WE DO NOT -THE COURT: 18 19 ALL RIGHT. I'LL NOTE YOUR OBJECTION FOR THE RECORD. AS I SAID, I WOULD RATHER TALK ABOUT SOME 20 21 LEGAL ISSUES HERE, BUT IT'S GET DOWN TO THE 22 NITTY-GRITTY. SO OF THE 13 PEOPLE SOME SUBSET WERE 23 24 INTERVIEWED. 25 INTERVIEWED, WERE THEIR HARD DRIVES SEARCHED? Apple v. Samsung NOW OF THAT SUBSET THAT WERE Page 54 Hearing Transcript 9/28/11 1 MS. MAROULIS: YES, YOUR HONOR. 2 AND I WANT TO PREFACE MY WORDS WITH 3 SAYING THAT WE, TO THE EXTENT APPLE LATER CLAIMS 4 THERE'S ANY KIND OF WAIVER OF PRIVILEGED 5 INFORMATION, THIS IS NOT A WAIVER IT'S IN RESPONSE 6 TO THE COURT'S INQUIRY. THE COURT: 7 8 MS. MAROULIS: THE COURT: 10 YES, YOUR HONOR. ARE EACH OF THESE SEARCHED INDIVIDUALS IN KOREA? MS. MAROULIS: 12 13 SO THEIR INDIVIDUAL HARD DRIVES WERE SEARCHED? 9 11 NOTED. YES, THE DESIGNERS WERE IN KOREA. THE COURT: 14 DID SOMEONE REPRESENTING 15 SAMSUNG IN THIS LAWSUIT GO MEET WITH EACH OF THOSE 16 PEOPLE? MS. MAROULIS: 17 18 YOUR HONOR? 19 THE COURT: 20 MS. MAROULIS: 21 YOU TELL ME. IN-HOUSE COUNSEL INTERVIEWED THOSE INDIVIDUALS, YES, YOUR HONOR. THE COURT: 22 23 INCLUDING HOUSE COUNSEL, DID ANY OUTSIDE COUNSEL PARTICIPATE IN THOSE DOCUMENT INTERVIEWS? 24 MS. MAROULIS: 25 THE COURT: Apple v. Samsung SOME, BUT NOT ALL. ALL RIGHT. Page 55 Hearing Transcript 9/28/11 MS. MAROULIS: 1 AND AGAIN, WE DON'T 2 BELIEVE WE HAVE GOTTEN ANY SIMILAR INFORMATION AT 3 ALL FROM APPLE. THE COURT: 4 BELIEVE ME, WHERE I'M GOING 5 WITH THIS IS GOING TO APPLY ACROSS THE BOARD BUT I 6 HAVE A SPECIFIC MOTION IN FRONT OF ME SO I NEED TO 7 DEAL WITH THAT. NOW IN TERMS OF THE COLLECTION EFFORTS, 8 9 WAS SOME TYPE OF MEMORANDUM PREPARED WHICH 10 IDENTIFIED THE TOPICS CORRESPONDING TO RESPONSIVE 11 DOCUMENTS? 12 FOLKS, IF YOU KNOW? HOW DID YOU GO ABOUT INTERVIEWING THESE MS. MAROULIS: 13 YOUR HONOR, I BELIEVE THAT 14 WOULD GO INTO THE WORK PRODUCT ISSUES, HOW THEY 15 WERE INTERVIEWED SPECIFICALLY. 16 THE COURT: 17 MS. MAROULIS: 18 THE COURT: 19 ALL RIGHT. BUT THEY WERE SPOKEN WITH? OKAY. WERE SEARCH TERMS USED? 20 MS. MAROULIS: 21 FOR THE PRODUCTION OF DOCUMENTS. 22 THE COURT: 23 MS. MAROULIS: 24 THE SEARCH TERMS WERE USED BUT NOT FOR THE COLLECTION? I CANNOT SAY FOR SURE, YOUR HONOR. 25 Apple v. Samsung MS. MAROULIS: MY UNDERSTANDING, Page 56 Hearing Transcript 9/28/11 1 YOUR HONOR, IS THAT SOME SEARCH TERMS WERE USED. THE COURT: 2 3 DISCLOSED TO APPLE? MS. MAROULIS: 4 5 HAVE THOSE SEARCH TERMS BEEN NO, THEY HAVE NOT DISCLOSED ANY SEARCH TERMS. 6 THE COURT: ALL RIGHT. 7 WERE E-MAIL REPOSITORIES SEARCHED AS PART 8 OF THIS COLLECTION AND INTERVIEW PROCESS FOR EACH 9 OF THESE -- I'M TALKING ABOUT THESE 14 OR SUBSET OF 10 THE 13 DESIGNERS. MS. MAROULIS: 11 12 YOUR HONOR, I UNDERSTAND THAT E-MAIL WAS SEARCHED. THE COURT: 13 ARE THESE FOLKS RUNNING 14 MICROSOFT EXCHANGE OR SOME COMMERCIALLY AVAILABLE 15 E-MAIL SERVER? MS. MAROULIS: 16 I COULD NOT SPEAK TO THE 17 TYPE OF SERVERS BUT I KNOW E-MAILS WERE SEARCHED, 18 THAT'S FROM THE E-MAIL SEARCHES THAT WE'VE 19 ASSEMBLED, THE E-MAILS THAT WERE PRODUCED. THE COURT: 20 SO DO YOU KNOW ONE WAY OR THE 21 OTHER, I DO NOT KNOW WHETHER SAMSUNG RUNS 22 MICROSOFT, PST FOLDERS WERE INTERVIEWED? MS. MAROULIS: 23 I DO NOT KNOW THE 24 SPECIFICS OF THE DESIGNATIONS OF WHAT EXACTLY WAS 25 SEARCHED. Apple v. Samsung Page 57 Hearing Transcript 9/28/11 1 THE COURT: ALL RIGHT. 2 MS. MAROULIS: WELL -- YOUR HONOR, ONE THING I DO 3 WANT TO POINT OUT IS THAT TO THE EXTENT ANY OF THE 4 E-MAIL EXISTED AS OF WHEN THIS LAWSUIT WAS FILED, 5 OBVIOUSLY IT'S BEING COLLECTED AND DEALT WITH BUT 6 TO THE EXTENT THAT SOME E-MAIL WAS ALREADY DELETED 7 LAST YEAR OR YEAR BEFORE, THE PARTY HAS NO 8 OBLIGATION TO FOREVER PRESERVE ITS E-MAIL BEFORE 9 LITIGATION IS PENDING. 10 THE COURT: 11 DID EACH OF THESE MEMBERS IN THIS SUBSET 12 ALL RIGHT. OF 13 GET A LITIGATION HOLD NOTICE OF SOME KIND? MS. MAROULIS: 13 14 I ASK YOU TO REPEAT. 15 THE COURT: PARDON ME, YOUR HONOR, CAN FOCUSSING ON THE SUBSET OF 16 THE 13 DID EACH OF THOSE INDIVIDUALS RECEIVE SOME 17 KIND OF HOLD NOTICE OR STRUCTURE. 18 MS. MAROULIS: 19 THE COURT: 20 MS. MAROULIS: 21 THE COURT: 22 NOTICE BEEN TENDERED TO APPLE? WAS IT PROVIDED IN WRITING? YES, YOUR HONOR. HAS A COPY OF THAT HOLD 23 MS. MAROULIS: 24 THE COURT: 25 YES, YOUR HONOR. NO. AND I'M GUESSING THEY HAVEN'T GIVEN YOU A COPY? Apple v. Samsung Page 58 Hearing Transcript 9/28/11 MS. MAROULIS: 1 ABSOLUTELY NOT. WE 2 BELIEVE THE WHOLE NOTICE IS PRIVILEGED BUT IT 3 EXISTS. 4 THE COURT: 5 WELL, IS THERE ANYTHING ELSE YOU CAN TELL 6 ME ABOUT THE SPECIFICS OF THIS COLLECTION EFFORT AS 7 TO THIS SUBSET? MS. MAROULIS: 8 9 IS YOUR HONOR STILL ON DESIGN DOCUMENTS? THE COURT: 10 11 ALL RIGHT. I'M JUST STARTING THERE, BUT YEAH. 12 MS. MAROULIS: OKAY. 13 THE IMPORTANT PART OF THE COLLECTION IS 14 THAT WE'VE PROVIDED A WHOLE NUMBER OF DIFFERENT 15 DESIGN TYPES OF DOCUMENTS. 16 COMPARED TO APPLE COLLECTION WHICH HAD 17 ALMOST NO DESIGN DOCUMENTS OUT OF THE FAMOUS CAD 18 FILES. 19 INSPIRATION DOCUMENTS, POWERPOINTS, MARKETING 20 DOCUMENTS WITH DESIGNS EMBEDDED. 21 WHOLE VARIETY OF DOCUMENTS -- 22 THE COURT: 23 WE PRODUCED CAD FILES, DESIGNER DRAWINGS, I'M SORRY. SO THERE'S A I ACTUALLY -- I REMEMBERED MY OTHER QUESTION I HAD FOR YOU. 24 DID APPLE EVER SAY TO YOU, COULD YOU JUST 25 SEARCH THESE INDIVIDUALS, THE SUBSET OR THE 13, FOR Apple v. Samsung Page 59 Hearing Transcript 9/28/11 1 E-MAIL AND USE THESE TERMS THAT WE ARE GOING TO 2 GIVE TO YOU TO FIND DOCUMENTS THAT ARE GOING TO BE 3 IMPORTANT IN THIS DISPUTE? DID THEY EVER GIVE YOU LIST OF THE SEARCH 4 5 TERMS? MS. MAROULIS: 6 THEY DID NOT GIVE A LIST 7 OF SEARCH TERMS. 8 INDIVIDUAL E-MAILS CAN BE SEARCHED AND IT WAS NOT 9 AS THE 13, IT WAS AS TO TWO OR THREE NAMES, I 10 RECALL, FROM THE MEET AND CONFER CORRESPONDENCE. THE COURT: 11 12 WHAT WAS THE ANSWER TO THAT QUESTION? MS. MAROULIS: 13 14 THEY HAVE INQUIRED WHETHER THAT WE ARE LOOKING INTO IT. AND YOUR HONOR, THIS GOES BACK TO WHAT 15 16 MR. JACOBS SAID EARLIER BECAUSE WE WERE DEFENDING 17 NINE DEPOSITIONS IN THE SPACE OF TEN DAYS, NOT 18 EVERY MEET AND CONFER COULD BE ATTENDED BY 19 MR. JOHNSON AND MYSELF. SO WE HAVE BEEN INVOLVED AS MUCH AS WE 20 21 COULD BUT SOME OF THEM TRANSPIRED WITH PEOPLE WHO 22 ARE NOT PRESENT HERE. THE COURT: 23 YOU MENTIONED THAT, I BELIEVE 24 YOU SAID YOU'VE TENDERED UP TO NINE WITNESSES FOR 25 DEPOSITION TODAY, SOMETHING LIKE THAT. Apple v. Samsung Page 60 Hearing Transcript 9/28/11 1 MS. MAROULIS: YES, YOUR HONOR. 2 THERE WERE SEVEN DECLARANTS AND THEN A 3 30(B)(6) WITNESS WHO TESTIFIED EXTENSIVELY AND 4 PREPARED AND SPOKE WITH A COUPLE DOZEN PEOPLE ON 5 THE RECORD. 6 EMPLOYEE EXECUTIVE THAT HAD BEEN NOTICED. THE COURT: 7 8 HE EXPLAINED THAT. AND A FORMER MR. WAGNER IS ONE OF THESE SEVEN DECLARANTS. MS. MAROULIS: 9 THE COURT: 10 YES, YOUR HONOR. NOW PUTTING ASIDE ANY 11 RETAINED EXPERTS LIKE MR. WAGNER, WERE THE FILES OF 12 EACH OF THESE INDIVIDUALS WHO WERE TEED UP FOR 13 DEPOSITION REVIEWED FOR POSSIBLY RELEVANT 14 RESPONSIVE DOCUMENTS? 15 MS. MAROULIS: 16 THE COURT: 17 SO EACH OF THOSE INDIVIDUALS HAD AN INTERVIEW? 18 MS. MAROULIS: 19 THE COURT: 20 YES, YOUR HONOR. YES, YOUR HONOR. AND DOCUMENTS WERE COLLECTED AND PRODUCED IN ADVANCE OF THE DEPOSITION. MS. MAROULIS: 21 SO ONE OF THEM 22 MR. DENNISON IS THE CURRENT EMPLOYEE OF SAMSUNG, 23 AND HIS DOCUMENTS WERE SEARCHED AND PRODUCED. AND MR. KONG IS A FORMER EMPLOYEE, SO HIS 24 25 FILES WERE SEARCHED AND WHATEVER WAS PRODUCED WAS Apple v. Samsung Page 61 Hearing Transcript 9/28/11 1 SAMSUNG DOCUMENTS. THEY ALSO SERVED A SEPARATE SUBPOENA ON 2 3 HIM FOR DOCUMENTS IN HIS CURRENT POSSESSION. 4 DIDN'T HAVE ANYTHING EXCEPT FOR FRAMED PARAGRAPH OR 5 FRAMED ARTICLE ABOUT HIM TALKING ABOUT VARIOUS 6 PRODUCTS. 7 OTHERWISE THEIR FILES WERE SEARCHED. SO HE BROUGHT THAT TO DEPOSITION. HE 8 THE COURT: 9 BUT ALL RIGHT. MR. LEE IS AN INDIVIDUAL WHO IS 10 SPECIFICALLY IDENTIFIED. 11 MEET AND CONFER WHEN APPLE ASKED, YOU WOULD SEARCH 12 HIS FILES, YOU WOULD NOT COMMIT ONE WAY OR THE 13 OTHER WITH THAT? MR. JOHNSON: IS IT TRUE THAT DURING A 14 YOUR HONOR, IF I COULD 15 ADDRESS THAT BECAUSE I WAS AT THE MEET AND CONFER 16 AND MS. MAROULIS WASN'T. THAT IS NOT CORRECT. 17 THEY RAISED 18 MR. LEE'S FILES AT THE MEET AND CONFER WHICH I WAS 19 THERE FOR THAT. 20 IT'S FRIDAY AFTERNOON, WE ARE CHECKING, WE ARE 21 GOING TO GET BACK TO YOU THE BEGINNING OF NEXT WEEK 22 BECAUSE IT WAS ALREADY THE WEEKEND IN KOREA. AND WHEN THEY RAISED IT I SAID AND THAT'S EXACTLY WHAT I TOLD THEM AND 23 24 THE NEXT THING THAT HAPPENED WAS, I MEAN, SO I WAS 25 ACTUALLY WAS QUITE AMAZED THAT WES GOT UP HERE AND Apple v. Samsung Page 62 Hearing Transcript 9/28/11 1 SAID THAT BECAUSE THAT DIDN'T HAPPEN AT ALL. 2 WE WENT AND CHECKED AND WE PRODUCED FILES 3 AND WE DID PRODUCE DOCUMENTS THAT DEMONSTRATED THAT 4 THE STATEMENT THAT WAS MADE IN THE PRESS WAS 5 ULTIMATELY RESTRUCTURED AND THERE WERE DOCUMENTS 6 ASSOCIATED WITH THAT THAT WERE PRODUCED. AND THERE WERE E-MAILS AND OTHER 7 8 DOCUMENTS THAT WERE PRODUCED OUT OF THE FILES AS 9 WELL, ULTIMATELY. THE COURT: 10 SO JUST SO I UNDERSTAND AS WE 11 SIT HERE TODAY, MR. LEE'S FILES HAVE BEEN REVIEWED, 12 RESPONSIVE DOCUMENTS HAVE BEEN COLLECTED, THE 13 PRIVILEGE HAS BEEN CLEARED OUT AND MATERIALS HAVE 14 BEEN PRODUCED; IS THAT RIGHT? 15 MR. JOHNSON: 16 THE COURT: 17 MR. JOHNSON: YES. OKAY. AND IF -- JUST WHILE I'M 18 HERE, WITH RESPECT TO -- AND THEN I'LL SIT DOWN, 19 MS. MAROULIS IS DOING PERFECTLY GREAT JOB -- YOU 20 KNOW, WE TALKED ABOUT WHO IS DOING THE DOCUMENT 21 COLLECTION, YOU KNOW, PART OF THE ISSUE HERE AS 22 WELL IS THERE ARE PEOPLE IN KOREA HELPING WITH THE 23 DOCUMENT COLLECTION. SAMSUNG HAS PEOPLE WHO ARE INVOLVED 24 25 WITHIN SAMSUNG, THERE'S A FORMER QUINN EMANUEL Apple v. Samsung Page 63 Hearing Transcript 9/28/11 1 ASSOCIATE WHO WORKED VERY CLOSELY WITH ME FOR MANY 2 YEARS WHO IS NOW IN HOUSE AT SAMSUNG. 3 PARTICIPATING AND COLLECTING DOCUMENTS IN KOREA 4 THERE'S A FORMER PARTNER FROM QUINN EMANUEL WHO IS 5 AT SAMSUNG WHO PARTICIPATED IN A COLLECTION WHO HAS 6 NOW MOVED ON BUT HE WAS ALSO INVOLVED. SHE'S BEEN SO IT'S NOT AS THOUGH -- AND THERE ARE 7 8 OTHER PEOPLE WITHIN THE LEGAL TEAM, FRANKLY, THAT 9 ARE ADMITTED TO THE BARS EITHER IN CALIFORNIA OR 10 NEW YORK WHO HAVE ALSO BEEN INVOLVED. SO IT'S NOT AS THOUGH WE TURNED THIS OVER 11 12 TO PEOPLE AND SAID, GO COLLECT DOCUMENTS AND WE 13 DIDN'T FOLLOW UP WITH IT. 14 WORKED WITH FOR MANY YEARS AND THE RELATIONSHIP 15 WITH SAMSUNG IS SUCH THAT, I MEAN, WE'VE GOTTEN 16 WHERE WE TRUST THEM AND WE'VE WORKED WITH THEM. THESE ARE PEOPLE WE SO DON'T WANT IT TO SEEM LIKE THERE WAS A 17 18 DISCONNECT BECAUSE IT WAS ACTUALLY VERY MUCH 19 CONNECTED. 20 THE COURT: ALL RIGHT. 21 WELL, I SUSPECT YOU WOULD SIMILARLY 22 ACCEPT A PROCESS AT APPLE THAT RELIED UPON THEIR 23 IN-HOUSE EXPERTISE TO DRIVE THIS PROCESS, FAIR 24 ENOUGH? 25 Apple v. Samsung MR. JOHNSON: YES. Page 64 Hearing Transcript 9/28/11 AND FRANKLY, YOU KNOW, I THINK I TOOK THE 1 2 FIRST DEPOSITION IN THE CASE WHERE I DEPOSED 3 MR. LUTTON WHO IS A FORMER PATENT COUNSEL AT APPLE. 4 AND I ASKED MR. LUTTON ABOUT DOCUMENT COLLECTION 5 AND, YOU KNOW, WHETHER THE RIGHT THING WAS DONE, 6 AND I WAS CONFRONTED WITH A WORK PRODUCT AND 7 ATTORNEY/CLIENT PRIVILEGE OBJECTION, SO I NEVER GOT 8 INTO IT AND I NEVER UNDERSTOOD. SO TO HEAR APPLE SAY NOW THAT THEY WANT 9 10 THE PROCESS TO BE TRANSPARENT IS AGAIN, THAT DIDN'T 11 COME UP IN THE MEET AND CONFER PROCESS I ATTENDED 12 UNTIL THIS VERY HEARING. I'M SORRY TO SAY THAT. 13 I AGREE WITH YOU, 14 WE NEED TO DO A BETTER JOB OF MEET AND CONFERRING 15 AND I THINK A LOT OF THIS IS TIED TO THE SCHEDULE 16 THAT EVERYONE HAS BEEN UNDER. SO ONCE WE GET BEYOND THE PRELIMINARY 17 18 INJUNCTION MOTION ON THE 13TH, HOPEFULLY THIS GETS 19 BACK TO A NORMAL CASE IN SOME RESPECTS AND WE CAN, 20 YOU KNOW, WE CAN AVOID THESE KINDS OF HEARINGS WITH 21 YOUR HONOR AND TRY TO RESOLVE THESE THINGS WHICH IS 22 WHAT WE WERE TRYING TO DO ON THE 16TH. 23 THE COURT: 24 MS. MAROULIS, YOU WERE SAYING? 25 MS. MAROULIS: Apple v. Samsung ALL RIGHT. EXCELLENT. I'M GLAD Page 65 Hearing Transcript 9/28/11 1 MR. JOHNSON CLARIFIED THAT MEET AND CONFER ISSUE 2 BECAUSE I WAS NOT THERE. I WAS ANSWERING YOUR HONOR'S SPECIFIC 3 4 QUESTIONS ABOUT COLLECTION PROCESS, IF THERE'S 5 ANYTHING ELSE YOUR HONOR WOULD LIKE TO ADDRESS, WE 6 CAN DO THAT. SO THAT'S WITH RESPECT TO THE DESIGN 7 8 DOCUMENTS, RIGHT? 9 DOCUMENTS. THERE'S A BODY OF DESIGN WE PRODUCED A HUGE NUMBER OF THEM. 10 APPLE IS LOOKING FOR SPECIFIC DOCUMENTS OF ALLEGED 11 COPYING. THROUGH OUR SEARCH WE HAVEN'T FOUND ANY. 12 13 IF WE FIND ANY OTHER TIME OF COURSE IT WOULD BE 14 PRODUCED AND SUPPLEMENTED BECAUSE THAT'S THE 15 PARTIES OBLIGATION. THE OTHER CATEGORIES OF DOCUMENTS ARE 16 17 BROADLY MARKETING AND CONSUMER SURVEYS. AND AGAIN, 18 WITH RESPECT TO THESE CATEGORIES, WE HAVE SEARCHED 19 THE RELEVANT FILES AND PRODUCED AN ENORMOUS NUMBER 20 OF DOCUMENTS RANGING FROM MARKET SHARE TO MARKETING 21 PRESENTATIONS TO COMPETITIVE ANALYSIS, WHO IS OUR 22 COMPETITION, WHAT YOU SHOULD BE TARGETING, 23 MARKETING SURVEYS AS WELL. 24 SO THERE ARE TWO DIFFERENT REQUESTS. 25 IS MARKETING AS A WHOLE, THE OTHER IS CONSUMER Apple v. Samsung ONE Page 66 Hearing Transcript 9/28/11 1 SURVEYS. 2 SO CONSUMER SURVEYS WAS A CONTESTED 3 TOPIC, WE THOUGHT IT WAS NOT RELEVANT IN THIS 4 INSTANCE, WE THOUGHT RATHER THAN FIGHT IT JUST 5 PRODUCE IT SO WE DID. 6 IN THE MOTION TO COMPEL. AND AGAIN WITH DESIGN DOCUMENTS WE 7 8 WE ARE SURPRISED TO SEE THAT BELIEVE THESE DOCUMENTS HAVE BEEN PRODUCED. NOW THE DOCUMENTS OF CONFUSION, THE LAST 9 10 CATEGORY, IS A CONTESTED TOPIC STILL BECAUSE WE 11 DON'T THINK THOSE DOCUMENTS ARE RELEVANT IN THE PI 12 TEXT. IT IS TRUE THAT BROADLY SPEAKING APPLE 13 14 HAS TRADEMARK CLAIMS IN THIS CASE, BUT THEY CHOSE 15 TO NOT MOVE ON TRADEMARK CLAIMS. 16 MAKE THE PI MOTION SOLELY ABOUT PATENT INFRINGEMENT 17 ANALYSIS. THE COURT: 18 THEY CHOSE TO EVEN THOUGH IT'S PRETTY CLEAR 19 JUDGE KOH UNDERSTOOD TRADEMARKS WERE GOING TO BE AN 20 ISSUE IN THE PI MOTION, CORRECT? 21 MS. MAROULIS: THEY MADE IT SOUND TO 22 JUDGE KOH THAT TRADEMARK WAS GOING TO BE PART OF 23 IT, CORRECT. 24 WHEN SEE THAT IT WAS ONLY PATENT 25 INFRINGEMENT ALLEGATIONS, SO WE FOCUSED OUR EFFORTS Apple v. Samsung Page 67 Hearing Transcript 9/28/11 1 ON THAT. BUT WE JUST DON'T BELIEVE THE ALLEGED 2 3 CONFUSION DOCUMENTS ARE AT ISSUE HERE AT ALL. BUT 4 THE BURDEN SHOULD NOT BE OVERLOOKED AT ALL. 5 SUBMITTED A DECLARATION OF ONE OF SAMSUNG EMPLOYEES 6 WHO HAS PERSONAL KNOWLEDGE OF THE CONSUMER 7 COMMUNICATION DATABASE. WE AS YOU CAN IMAGINE THIS DATABASE MOSTLY 8 9 CONCERNS PEOPLE WHO ARE ANNOYED WHEN THEIR DATA IS 10 NOT WORKING OR THEY HAVE A SCRATCH ON THEIR PHONE. 11 SO PROBABLY 99.9 PERCENT OF THAT IS GOING TO BE 12 ENTIRELY IRRELEVANT. 13 POTENTIALLY WHERE SOME CONSUMER VOLUNTEERS THEIR 14 THOUGHTS ABOUT OTHER PEOPLE'S PRODUCTS. 15 TO IMAGINE THE CALL, BUT IF THEY DO I CAN REPRESENT 16 HERE THAT THAT CANNOT HAPPEN. THERE MIGHT BE SOME SUBSET IT'S HARD SO MR. WILKINS EXPLAINED IN DETAIL WHAT 17 18 IT WOULD TAKE TO ASSEMBLE AND FARE OUT THE RELEVANT 19 EVIDENCE THAT WE COULD THEN NEED TO SEARCH AND HAVE 20 ATTORNEY REVIEW OF AND THEN PRODUCE, BECAUSE NOT 21 EVERY CALL THAT MENTIONED APPLE IS GOING TO BE 22 NECESSARILY RESPONSIVE TO THE REQUEST. I THINK BY HIS ESTIMATE IT WAS GOING TO 23 24 BE THREE TO FOUR WEEKS. 25 MR. OVERSON POSED, WHY DIDN'T WE START DOING THIS Apple v. Samsung THE QUESTION THAT Page 68 Hearing Transcript 9/28/11 1 EARLIER? AS WE SAID IN OUR PAPERS, THE BULK OF OUR 2 DISCOVERY WE RECEIVED FROM APPLE IS CLOSE TO 60 3 DOCUMENT PRODUCTION REQUESTS WAS SEARCHED AUGUST 4 26TH. WE BELIEVE WHEN JUDGE KOH SET THE 5 6 DISCOVERY FOR THE PI MOTION SHE ENVISIONED 7 SOMETHING VERY DIFFERENT, SHE ENVISION AID NARROW 8 SUBSET OF DISCOVERY AND DEPOSITIONS OF THOSE 9 DECLARANTS WHO SUBMITTED DECLARATIONS PRO/CON, THE 10 PRELIMINARY INJUNCTION. I DOUBT THAT SHE HAD IN MIND THIS FAR 11 12 REACHING 60 TO 70 REQUEST FISHING TRIP INTO 13 SAMSUNG'S FILE PRIVACY. 14 SO IN CONCLUSION YOUR HONOR, TO AGAIN 15 CLARIFY ISSUES BEFORE US, UNLESS YOU HAVE OTHER 16 QUESTIONS, IS THAT THE FORTY CATEGORIES OF 17 DOCUMENTS WHERE SAMSUNG HAS ALREADY COMPLIED WITH 18 THE DISCOVERY -THE COURT: 19 BUT YOU DO NOT KNOW IF YOU'VE 20 SEARCHED ALL 13 DESIGNERS' FILES SO HOW CAN YOU SAY 21 IT'S DONE? 22 YOU DO NOT KNOW. YOU ARE NOT DONE. MS. MAROULIS: 23 YOU MAY BE DONE, BUT YOUR HONOR, I APOLOGIZE 24 FOR NOT BEING ABLE TO SAY ON RECORD ALL 13 WERE 25 SEARCHED. Apple v. Samsung I BELIEVE THEY WERE BUT I WOULD NEED TO Page 69 Hearing Transcript 9/28/11 1 DOUBLE CHECK. 2 THE COURT: 3 MR. LEE'S FILES, THOSE ARE ALL SEARCHED? 4 MS. MAROULIS: 5 ALL RIGHT. JACOB LEE'S FILES WERE SEARCHED; YES, YOUR HONOR. 6 THE COURT: 7 MS. MAROULIS: 8 AND SO GOING TO THE LAST DISPUTED ISSUE 9 ALL THE DOCUMENTS? YES, YOUR HONOR. WHICH IS THE ISSUE OF THE POTENTIAL CONFUSION 10 DOCUMENTS, WE SUBMIT THEY ARE BOTH RELEVANT AND 11 VERY BURDENSOME TO SEARCH. AND WHEN WE TALK ABOUT BURDEN, WE ARE NOT 12 13 TALKING BURDEN ON OUTSIDE COUNSEL BECAUSE THAT'S 14 NOT AN ISSUE, IT'S A BURDEN OF THE COMPANY ON 15 SAMSUNG. 16 WOULD TAKE FROM THE LEGITIMATE ENTERPRISE OF DOING 17 THE BUSINESS TO FOCUS ON HELPING US FARE OUT THE 18 POTENTIAL TWO OR THREE CUSTOMER CALLS THAT MAY OR 19 MAY NOT COME IN. AND THE AMOUNT OF TIME AND EFFORT IT THE COURT: 20 SO WITH RESPECT TO THE, I'M 21 GOING TO USE LANGUAGE OR VERNACULAR FROM MY OLD 22 WORLD, SUSPECT DATABASE, AS I REMEMBER IT AND 23 RECALL IT WHEN I HAD TO DO THESE COLLECTIONS THERE 24 WERE, ON OCCASION, PRODUCT MANAGERS IN PARTICULAR 25 WHO HAD A KEEN INTEREST IN UNDERSTANDING WHAT Apple v. Samsung Page 70 Hearing Transcript 9/28/11 1 FEATURES CUSTOMERS WERE INTERESTED IN, RIGHT? 2 THAT'S THEIR JOB IS TO FIGURE OUT WHAT THE NEXT 3 FEATURE OR RELEASE IS GOING TO BE. SO HAVE YOU UNDERTAKEN ANY EFFORTS TO 4 5 UNDERSTAND WHETHER THERE ARE ANY EXISTING PROCESSES 6 FOR SECURING FROM THAT DATABASE SOME SMALL SET OF 7 INFORMATION, NOT THE WHOLE THING, BUT HAVE YOU DONE 8 ANY OF THAT? MS. MAROULIS: 9 YOUR HONOR, WE LOOKED INTO 10 THE CUSTOMER SURVEYS, THOSE DATABASES, THAT'S WHERE 11 THE PRODUCTION CAME FROM IN FIGURING OUT WHAT 12 CUSTOMERS LIKE ABOUT SOMETHING AND WHY THEY BUY 13 PRODUCTS. 14 YOU'RE TALKING ABOUT. 15 RESPONSIVE TO REQUEST 214 NOT NECESSARILY THE 206 16 WHICH IS THE ALLEGED CONFUSION. 17 THE COURT: 18 THAT'S THE SUBSET OF DOCUMENTS I BELIEVE BUT THOSE DOCUMENTS WOULD BE YEAH. I ACCEPT YOUR CLARIFICATION. WHAT I WAS ACTUALLY GETTING AT WAS WITHIN 19 20 THE SUPPORT DATABASE, SUPPORT ORGANIZATIONS TEND 21 TO, AT LEAST IN MY EXPERIENCE, RESIST TAKING ON THE 22 RESPONSIBILITY AND OBLIGATION OF PROVIDING 23 COMPETITIVE INTELLIGENCE TO OTHER ELEMENTS OF THE 24 CORPORATION WHICH MAY VERY MUCH VALUE THAT 25 INFORMATION. Apple v. Samsung Page 71 Hearing Transcript 9/28/11 NEVERTHELESS I'M AWARE AT LEAST IN A 1 2 NUMBER OF LARGE MULTINATIONAL TECHNOLOGY 3 CORPORATIONS THAT I'M FAMILIAR WITH, THERE EXISTS 4 CERTAIN PROCESSES FROM TIME TO TIME WHEREBY THE 5 PRODUCT MANAGEMENT FUNCTION CAN SECURE SOME 6 INTELLIGENCE FROM THIS VAST DATABASE AS TO WHAT 7 YOUR ACTUAL CUSTOMERS WANT IN AN EXTRA RELEASE OF 8 THE PRODUCT. MY QUESTION IS SIMPLY WHETHER YOU'VE 9 10 UNDERTAKEN ANY EFFORTS TO IDENTIFY ANY OF THOSE 11 EXISTING OR PRE-EXISTING PROCESSES TO MINIMIZE YOUR 12 BURDEN SO YOU ARE NOT REDOING IT. 13 MS. MAROULIS: IF I UNDERSTAND 14 YOUR HONOR'S QUESTION CORRECTLY, YES WE INTERVIEWED 15 PEOPLE IN THE MARKETING ORGANIZATION AND THE 16 COMPETITIVE INTELLIGENCE ORGANIZATION AND FIGURED 17 OUT HOW THEY KEEP INFORMATION. 18 THE COURT: 19 ANYTHING FURTHER? 20 MS. MAROULIS: OKAY. ALL RIGHT. WOULD YOUR HONOR LIKE ME 21 TO BRIEFLY ADDRESS THE QUESTION OF SANCTIONS OR 22 IT'S NOT BEFORE THE COURT? THE COURT: 23 WELL, I WOULD LIKE TO HEAR 24 YOUR POSITION. 25 TO GIVE YOU THIS OPPORTUNITY. Apple v. Samsung I THINK I UNDERSTAND IT BUT I WANT Page 72 Hearing Transcript 9/28/11 MS. MAROULIS: 1 2 OUR POSITION IS IT'S NOT ENTIRELY PROPERLY BROUGHT FOR A NUMBER OF REASONS. I TOLD THEM EARLY ON IN JULY WE ARE 3 4 COMPLYING WITH ALL OUR OBLIGATIONS. BUT FOR THIS 5 COURT'S PURPOSES, IT'S NOT SUPPORTED BY ANY LAW, 6 NINTH CIRCUIT OR OTHERWISE. THERE'S BEEN NO MEET 7 AND CONFER ON THESE ISSUES. IT WASN'T PUT IN THE 8 SEPARATE MOTION AS REQUIRED BY THE LOCAL RULES. IT'S NOT JUST UNRIPE IT'S ENTIRELY 9 10 UNSUPPORTED. AND IT'S QUITE OFFENSIVE IN A WAY 11 BECAUSE IT'S SOMETHING THROWN OUT THERE IN THE 12 CONCLUSION IN PART OF THEIR PAPERS, NOT PROPER 13 SUPPORT, AND IT'S A GRAVE ACCUSATION. WE HOPE THAT IN THIS CASE IT CONTINUES 14 15 THERE'S NOT GOING TO BE ACCUSATION OF THAT SORT 16 JUST FLYING ACROSS THE -- 17 THE COURT: ALL RIGHT. 18 MS. MAROULIS: SO WE'VE BRIEFED THESE 19 ISSUES IN OUR MOTION, BUT VERY SIMPLY SPEAKING THEY 20 CANNOT JUST POINT TO SOME OTHER CASES THAT INVOLVE 21 SAMSUNG AND LUMP THEM ALL TOGETHER, WHATEVER THE 22 CIRCUMSTANCES ARE IN THOSE CASES, AND INFER THAT 23 SOMETHING SIMILAR IS HAPPENING HERE. THE COURT: 24 25 AS YOU POINTED OUT I BELIEVE YOUR ADVERSARY HAS SIMILARLY BEEN SANCTIONED IN Apple v. Samsung Page 73 Hearing Transcript 9/28/11 1 OTHER CASES AS WELL, CORRECT? 2 MS. MAROULIS: 3 THE COURT: 4 REBUTTAL? 5 MR. OVERSON: 6 MR. JACOBS: 7 10 OKAY. THANK YOU. YES, YOUR HONOR. CAN I BRING BACK MS. WHEELER? THE COURT: 8 9 THAT'S TRUE AS WELL. IF WE ARE GOING TO AVOID ANY CONFIDENTIAL INFORMATION WITH THE PROTECTIVE ORDER, I HAVE NO PROBLEM WITH THAT. 11 IF YOU WOULD, MR. JACOBS. 12 MR. JACOBS: 13 MR. OVERSON: CAN I? I DON'T THINK ANY OF THE 14 THINGS I'M GOING TO SAY ARE CONFIDENTIAL, I'M SURE. 15 I WILL DO MY BEST. 16 THE COURT: 17 MR. OVERSON: ALL RIGHT. SO YOUR HONOR, WE DO 18 BELIEVE A TRANSPARENCY, AND I THINK THAT WE HAVE, 19 INCLUDING IN RESPONSES TO SOME OF THEIR DOCUMENT 20 REQUESTS THAT WE HAVE NOTED THAT WE WOULD BE 21 WILLING TO BE MORE TRANSPARENT. AND THESE ISSUES DID COME UP TO SOME 22 23 DEGREE IN THE MEET AND CONFER SESSIONS BECAUSE WE 24 TALKED ABOUT, YOU KNOW, HAVE YOU SEARCHED THESE 25 FOUR PEOPLE? Apple v. Samsung THEY LISTED FOUR PEOPLE INVOLVED IN Page 74 Hearing Transcript 9/28/11 1 THE DESIGN IN THEIR INITIAL DISCLOSURES, HAVE YOU 2 SEARCHED THEM? WHAT HAVE YOU DONE? AND WE HIT ROADBLOCKS. 3 I THINK YOU HONOR 4 UNDERSTANDS THAT WE WERE TRYING TO PURSUE THAT AND 5 THEY TOLD US THEY WOULDN'T TELL US WHAT SEARCH 6 TERMS THEY USED. THERE WAS A PROCESS WHEREBY WE WERE GOING 7 8 TO TRY AND AGREE ON SEARCH TERMS BUT IT DIDN'T, IT 9 GOT OVERWHELMED BY THE SPEED OF THE CASE. BUT I DON'T THINK WE HEARD THAT AN E-MAIL 10 11 SEARCH HAS BEEN DONE ON THESE INDIVIDUALS TO LOOK 12 FOR, FOR EXAMPLE, APPLE OR IPHONE OR IPAD. 13 THAT HAS NOT HAPPENED. 14 THAT SEARCH HAS HAPPENED AND CERTAINLY THE FILES 15 AND THE PRODUCTION WOULD CONFIRM THAT. I MEAN, I DIDN'T HEAR THAT, THAT THE FACT THAT THERE'S ZERO E-MAILS FROM 16 17 THE MAJORITY OF THESE INDIVIDUALS THAT SAY APPLE 18 AND APPLE IS THE LEADING PRODUCT IN THE MARKET, IT 19 DOESN'T MAKE SENSE. THE COURT: 20 HAVE YOU DONE ANYTHING, AS 21 PART OF YOUR TRAFFIC ANALYSIS HAVE YOU ANALYZED, 22 FOR EXAMPLE, I UNDERSTAND YOU HAVEN'T RECEIVED A 23 CUSTODIAL LOG SO YOU DON'T KNOW WHERE THE DOCUMENTS 24 CAME FROM. 25 13 OF THESE INDIVIDUALS HAVE APPEARED ON AT LEAST Apple v. Samsung BUT HAVE YOU LOOKED TO SEE WHETHER ALL Page 75 Hearing Transcript 9/28/11 1 ONE E-MAIL? 2 APPEAR ANYWHERE IN THE PRODUCTION? MR. OVERSON: 3 4 ARE THERE INDIVIDUALS WHO DO NOT IF YOU KNOW. THERE MAY BE. I CAN'T SAY THAT. THERE'S A -- WE DID TRY IN THE CHUNG 5 6 DECLARATION TO GIVE YOUR HONOR AN OVERVIEW OF WHO 7 WAS MENTIONED AND WHO WASN'T. WE CAN SAY THERE'S NO E-MAILS FROM MOST 8 9 OF THE PEOPLE THEY SAY KNOW THE MOST ABOUT THIS. 10 AND THERE WAS INTERVIEWS OF 18 PEOPLE APPARENTLY 11 FOR 30(B)(6) DEPOSITIONS, AND WE DON'T HAVE E-MAILS 12 FROM THOSE PEOPLE. WE HAVE ONE OR TWO E-MAILS, WE ARE 13 14 TALKING TOTAL. WE ARE NOT TALKING AS TO ONE FROM 15 EACH, WE HARDLY HAVE ANYTHING. 16 THIS WAS JUST NOT DONE. SO IT SUGGESTS THAT 17 AND YOU KNOW, I'M NOT TRYING TO 18 DISRESPECT THE IN-HOUSE PEOPLE AT SAMSUNG, THEY MAY 19 BE FINE LAWYERS, I DO NOT KNOW, BUT THERE'S NO 20 SUBSTITUTE FOR HAVING OUTSIDE COUNSEL DO WHAT WE 21 HAVE DONE. THE COURT: 22 SO YOU HAVE HAD OUTSIDE 23 COUNSEL FROM MORRISON & FOERSTER AT EVERY CUSTODIAL 24 INTERVIEW? 25 Apple v. Samsung MR. OVERSON: YES. Page 76 Hearing Transcript 9/28/11 1 THE COURT: 2 MR. OVERSON: ALL RIGHT. SO WE NEED THOSE SEARCHES 3 TO BE DONE AND WE NEED SOME DETAILS THAT HOW THEY 4 WERE DONE AND THAT'S WHY WE WANTED TO DO THIS 5 FOLLOWUP 30(B)(6) IN ADDITION TO GETTING SOME 6 CERTIFICATION THAT IT'S ALL BEEN DONE. NOW, THERE'S MENTION OF CAD FILES, THEY 7 8 PRODUCE A LOT OF CAD FILES. WELL, THE CAD FILES 9 REFLECT THE PRODUCTS THAT AS THEY ENDED UP 10 APPEARING THEY DON'T GIVE US THE INFORMATION ABOUT 11 WHERE THE DESIGN ELEMENTS CAME FROM, AND THAT'S 12 REALLY WHAT WE ARE LOOKING AT IN DOCUMENT REQUEST 13 NUMBER 1. THE COURT: 14 THAT'S WHY I WAS ASKING ABOUT 15 THE SKETCHBOOKS, AT LEAST THE LAST TIME YOU ALL 16 WERE HERE OR AT LEAST SOME OF YOU WERE HERE, WE HAD 17 A PRETTY ROBUST DISCUSSION AROUND THE DESIGN 18 PROCESS. 19 MR. OVERSON: RIGHT. 20 AND THERE VERY WELL COULD BE SKETCHBOOKS. 21 THE COURT: SHE'S SAYING THERE AREN'T ANY 22 SKETCHBOOKS. 23 OR INDIVIDUAL DRAWINGS THEY HAVE BEEN PRODUCED TO 24 YOU. 25 Apple v. Samsung SHE'S SAYING IF THERE WERE SKETCHES HOW AM I TO ASSESS WHETHER THAT'S Page 77 Hearing Transcript 9/28/11 1 LEGITIMATE OR NOT AS TO SOME SPECIFIC -- I HAVE TO 2 ACCEPT YOUR REPRESENTATION JUST AS I HAVE TO ACCEPT 3 HERS. SO HOW AM I TO INDEPENDENTLY QUESTION 4 5 THAT UNLESS YOU COME FORWARD WITH SOME PROOF THAT 6 IN FACT THEY ARE HOLDING BACK DOCUMENTS? MR. OVERSON: 7 8 ON THE E-MAIL FRONT, I THINK WE HAVE SET FORTH -THE COURT: 9 WELL, YOU ARE POINTING TO THE 10 FACT THAT YOUR REQUEST NUMBER 1 WHICH WAS VERY 11 SPECIFIC IN ASKING FOR DOCUMENTS THAT REFERENCE THE 12 APPLE PRODUCTS, WE NOW ESTABLISHED WE ARE TALKING 13 ABOUT A SUBSET OF THE APPLE PRODUCT LINE. 14 SAYING WE HAVEN'T SEEN E-MAILS FROM CERTAIN PEOPLE 15 THAT HAVE THAT INFORMATION. YOU ARE WELL, IT'S ENTIRELY POSSIBLE, ISN'T IT, 16 17 THAT THERE ARE NO SUCH E-MAILS. 18 WHETHER OR NOT THEY ARE HOLDING THEM BACK JUST 19 BECAUSE THEY HAVEN'T SEEN THE DOCUMENTS YOU WANTED 20 TO SEE IN THE PRODUCTION? MR. OVERSON: 21 22 HOW AM I TO ASSESS YOUR HONOR DOES NOT NEED TO ASSESS THAT AT THIS STAGE. 23 WHAT WE ARE ASKING YOUR HONOR TO DO IS 24 ISSUE AN ORDER THAT BY TUESDAY OF NEXT WEEK THEY 25 PRODUCE ALL RESPONSIVE E-MAILS AND CERTIFY THAT IF Apple v. Samsung Page 78 Hearing Transcript 9/28/11 1 THEY HAVE DONE THE SEARCH WHICH WOULD OF COURSE 2 INCLUDE SEARCHING PEOPLE'S E-MAIL FOR TERMS LIKE 3 APPLE, IPHONE, IPAD -THE COURT: 4 OKAY. AND IS YOUR REQUEST 5 SPECIFIC AND DIRECTED TO THE 13 INDIVIDUALS WHO 6 HAVE BEEN IDENTIFIED AS BEING INVOLVED IN DESIGN 7 PROCESS? 8 THIS? MR. OVERSON: 9 10 CAN WE AT LEAST PUT THAT BOUNDARY AROUND I'M SORRY, YOUR HONOR, BUT WE CAN'T. IT WOULD BE EASY TO DO THAT AND CERTAINLY 11 12 THEY SHOULD BE SEARCHED, BUT THOSE ARE MY 13 UNDERSTANDINGS FROM SAMSUNG IS THAT THOSE ARE 14 DESIGNERS AS OPPOSED TO THE PEOPLE WHO DECIDED WHAT 15 PRODUCT DESIGNS TO PURSUE. 16 THE COURT: 17 MR. OVERSON: 18 THE COURT: 19 SO WHO ARE THOSE FOLKS? THOSE ARE PEOPLE -THE OFFICE OF THE DEVELOPMENT? MR. OVERSON: 20 THERE'S SOMETHING CALLED 21 THE OFFICE OF THE DEVELOPMENT AND WE UNDERSTAND 22 THEY HAVE A ROLE IN MAKING THOSE DECISIONS. THE COURT: 23 24 SO WHAT INDIVIDUALS IN THAT ORGANIZATION ARE WE TALKING ABOUT? 25 Apple v. Samsung MR. OVERSON: UNFORTUNATELY, WE DON'T Page 79 Hearing Transcript 9/28/11 1 KNOW. THE COURT: 2 3 DID YOU ASK THE 30(B)(6) WITNESS ABOUT THAT? MR. OVERSON: 4 WE ASKED QUESTIONS ABOUT 5 HOW THIS PROCESS WAS GOING BUT WE DIDN'T GET 6 SPECIFIC ANSWERS. 7 MADE THE DECISION. THE COURT: 8 9 MR. OVERSON: 400. MR. HUNG APPEARS TO HAVE SOME HELPFUL INFORMATION ON THIS TOPIC. MR. HUNG: 14 15 I CAN'T IMAGINE IT WOULD BE I THINK MY SUPPOSITION WOULD BE -THE COURT: 12 13 ARE WE TALKING FOUR PEOPLE OR 400 HERE IN THIS OFFICE? 10 11 THESE ARE THE FOUR PEOPLE WHO I ACTUALLY TOOK THE 30(B)(6) DEPOSITION OF MR. DENNISON ALONG WITH MS. MAROULIS. I JUST ASKED THE QUESTION ABOUT THE 16 17 DESIGN PROCESS, IT CUT OFF AT MR. CARRIERA. 18 MR. DENNISON LOOKED AT MR. CARRIERA AND KNEW VERY 19 LITTLE BEYOND THE DESIGN PROCESS. 20 THE COURT: HERE'S THE DILEMMA I FACE. 21 YOU'RE ASKING FOR AN ORDER THAT WOULD NOT 22 BE LIMITED TO 13 PEOPLE, POTENTIALLY MIGHT INVOLVE 23 DOZENS OF INDIVIDUALS AND YOU ARE ASKING THIS 24 COLLECTION OF PRODUCTION BE COMPLETED BY TUESDAY. 25 THAT'S JUST NOT GOING TO HAPPEN. Apple v. Samsung Page 80 Hearing Transcript 9/28/11 SO YOU ARE ASKING ME ESSENTIALLY TO ISSUE 1 2 AN ORDER THAT I KNOW WILL NOT BE OBEYED OR COULD 3 NOT BE OBEYED. MR. OVERSON: 4 5 I'M NOT ASSUMING THERE'S DOZENS OF OTHER INDIVIDUALS BEYOND THESE 13 PEOPLE. 6 THE COURT: 7 MR. OVERSON: 8 THE COURT: 9 LET'S SAY THERE'S ONLY FOUR. OKAY. THAT'S 17 PEOPLE TO GET A COLLECTION PRODUCTION PRIVILEGE REVIEW DATA 10 MANAGEMENT PROCESS, ALL OF THAT DONE BY TUESDAY? 11 THAT'S JUST NOT GOING TO HAPPEN, RIGHT? MR. OVERSON: 12 WELL, WE HAVE BEEN PUT IN 13 THIS POSITION. 14 AND OUR REPLY IS DUE IN TWO DAYS. YOUR HONOR, WE ARE VERY, VERY WELL AWARE 15 16 THIS REQUEST WENT OUT ON JULY 12TH OF THE SCHEDULE AND HOW TOUGH IT IS. AND IT'S NOT FAIR THOUGH TO DEPART AT THE 17 18 MOVING PARTY TO FACE THIS KIND OF STONE WALLING 19 THEN AT THE END SAY, WELL, IT'S TOO LATE. 20 NOT A FAIR OUTCOME. THAT'S SO THAT IS WHY THERE HAS TO BE SOME 21 22 CONSEQUENCE TO SAMSUNG FOR NOT PRODUCING THESE 23 DOCUMENTS, NOT DOING THE PROPER E-MAIL SEARCH THAT 24 WE ALL KNOW WE HAVE TO DO. 25 Apple v. Samsung THE COURT: CAN I ASK YOU ABOUT THE -Page 81 Hearing Transcript 9/28/11 1 AND I WILL USE THE TERMINOLOGY OR TERM "SUPPORT 2 DATABASE." 3 REFERENCE FOR IT. I SUSPECT SAMSUNG HAS ITS OWN SPECIFIC I CAN UNDERSTAND WHY YOU WOULD LIKE TO 4 5 KNOW IF CUSTOMERS ARE REFERRING TO SPECIFIC APPLE 6 FEATURES IN PLACING CALLS TO THAT ORGANIZATION, 7 NEVERTHELESS, I WOULD SUSPECT YOU WOULD AGREE 8 BECAUSE APPLE FACES THE SAME SITUATION WITH ITS 9 SUPPORT ORGANIZATION, THERE ARE THOUSANDS PERHAPS 10 MILLIONS OF RECORDS THAT WE ARE TALKING ABOUT WOULD 11 NEED TO BE REVIEWED AND EXPORTED. IS THERE SOME BOUNDARY OR LIMITATION 12 13 OTHER THAN GIVEN TO US ALL WITH CERTAIN TERMS THAT 14 YOU WOULD BE WILLING TO ACCEPT IN RESPONSE TO YOUR 15 REQUEST? 16 MR. OVERSON: SO YES IS THE ANSWER. 17 I THINK THE -- NO ONE SHOULD HAVE TO 18 REVIEW THOUSANDS AND TENS OF THOUSANDS OF ENTRIES. 19 THIS SHOULD BE A SEARCH PROCESS. 20 SEARCH PROCESS IS THE MOST ECONOMIC WAY IS THE 21 FASTEST WAY TO DO IT. I THINK THE ISSUE IS GOING TO BE FINDING 22 23 SEARCH TERMS THAT DON'T END UP WITH TOO MANY HEADS. THE COURT: 24 25 I DO THINK THE JUST TO DO THE AGGREGATION AND EXPORT, MY POINT OF REFERENCE MIGHT BE DATED Apple v. Samsung Page 82 Hearing Transcript 9/28/11 1 AND GETTING MORE DATED BY THE DAY, BUT THAT'S NOT 2 SOMETHING THAT'S INSUBSTANTIAL, YOU WOULD AGREE? I SUSPECT YOUR OWN SUPPORT PEOPLE WOULD 3 4 TELL YOU THAT, RIGHT? 5 BY ASKING FOR THIS INFORMATION FROM SAMSUNG YOU 6 KNOW IT'S COMING BACK AT YOU, RIGHT? 7 MR. OVERSON: 8 THE COURT: AND OF COURSE YOU UNDERSTAND CERTAINLY. SO WITH ALL THAT INFORMATION 9 AND UNDERSTANDING, YOU ARE SAYING YOU WANT THAT 10 KIND OF EFFORT UNDERTAKEN IN ORDER TO FIND THESE 11 INDIVIDUAL RECORDS THAT MAY OR MAY NOT EXIST? MR. OVERSON: 12 HAVING A TARGETED SEARCH OF 13 A DATABASE THAT'S BEEN IN A SEARCHABLE -- THAT'S 14 PUT IN THE SEARCHABLE FORMAT AND HAVING THE SEARCH 15 TERMS BE REASONABLE, I MEAN, WE'RE NOT GOING TO ASK 16 EVERY TIME THEY CALLED ABOUT THE GALAXY PHONE, THAT 17 WOULD BE TOO MANY, THE SEARCH TERMS WILL BE MORE 18 FOCUSED ON THE CONFUSION MEANING THE APPLE 19 PRODUCTS. WE DON'T BELIEVE -- I CAN'T SAY, BUT I 20 21 DON'T THINK THERE'S GOING TO BE TENS OF THOUSANDS 22 OF HITS IN APPLE IN THE CUSTOMER SERVICE. THE COURT: 23 YOUR POINT IS YOU WOULD BE 24 DELIGHTED TO FIND OUT IF THAT WAS TRUE AND YOU 25 WOULD LIKE TO FIND WHAT THE DOCUMENTS HAVE TO SAY. Apple v. Samsung Page 83 Hearing Transcript 9/28/11 MR. OVERSON: 1 CERTAINLY, BUT I DON'T 2 THINK THERE WOULD BE THAT KIND OF BURDEN IF WE 3 LIMIT THE SEARCH TERMS AS I'VE DESCRIBED. SO WE UNDERSTAND THE TIME PRESSURE. 4 5 DO UNDERSTAND THAT. 6 WE BUT WE ALSO UNDERSTAND THE PREJUDICE THAT IS HAPPENING TO US. 7 THERE ARE STATEMENTS FROM THEIR EXPERTS 8 AND WE -- BY THE WAY, MOST ALL OF THE DEPOSITIONS 9 HAVE BEEN EXPERTS SO FAR. SO WHEN THE QUESTION WAS 10 ASKED HAVE WE SEARCHED EVERYTHING, IT'S MOSTLY ALL 11 EXPERTS. 12 ONE CURRENT AMERICAN EMPLOYEE, NO KOREAN EMPLOYEES, 13 SO THERE HASN'T BEEN THAT PROCESS FOR DEPOSITIONS 14 HERE. THERE'S BEEN ONE FORMER SAMSUNG EMPLOYEE, BUT LET ME STAY ON POINT BECAUSE I'M 15 16 CLOSING UP HERE. THERE'S A PREJUDICE TO US. 17 ARE COMING TO THE END. 18 YOU CAN COME TO THE END AND SAY, YOU KNOW, THIS IS 19 JUST TOO HARD AND THIS IS TOO MUCH EFFORT. IT CANNOT BE THE CASE THAT WE COULDN'T MOVE EARLIER. 20 WE THEY PRODUCED 21 A LOT OF DOCUMENTS RIGHT ON THAT MEET AND CONFER 22 DAY, SEPTEMBER 16TH. 23 DOCUMENTS THAT WERE DUE ON THAT FRIDAY NIGHT AND 24 SATURDAY. 25 Apple v. Samsung THEY PRODUCED HALF THE WE MOVED ON THE 20TH. WE GOT THIS HEARING AS FAST AS WE COULD. Page 84 Hearing Transcript 9/28/11 1 WE'VE DONE THE BEST WE COULD TO GET THIS IN FRONT 2 OF THE COURT. AND WE NEED THE COURT'S ASSISTANCE IN 3 4 MOVING THIS FORWARD AND COMING UP WITH SOME FAIR 5 RESOLUTION SO WE DON'T END UP IN A SITUATION WHERE 6 WE ARE STANDING THERE ON THE 13TH NOT HAVING 7 RECEIVED RELEVANT EVIDENCE FROM THE OTHER SIDE IN 8 THE FACE OF THE OTHER SIDE'S ALLEGATIONS THAT WE 9 FAILED TO PRODUCE DOCUMENTS THAT ARE IN THEIR 10 POSSESSION. 11 OKAY. THANK YOU. 12 THE COURT: 13 THANK YOU VERY MUCH. 14 MS. MAROULIS, ANY SURREBUTTAL, AS THEY ALL RIGHT. 15 SAY IN OTHER PARTS OF THE COUNTRY? 16 MS. MAROULIS: 17 HAVE ANY SPECIFIC QUESTIONS. THE COURT: 18 19 NO, YOUR HONOR, UNLESS YOU NO, I THINK I UNDERSTAND YOUR RESPECTIVE POSITIONS. 20 I APPRECIATE THE ARGUMENT THIS MORNING. 21 I WILL GET AN ORDER OUT JUST AS QUICKLY AS I CAN, 22 ESPECIALLY IN LIGHT OF THE SCHEDULE YOU'RE ALL 23 OPERATING UNDER. AND THANK YOU FOR YOUR REMARKS THIS 24 25 MORNING. Apple v. Samsung Page 85 Hearing Transcript 9/28/11 1 MR. OVERSON: 2 THE CLERK: 3 (WHEREUPON, THE PROCEEDINGS IN THIS 4 THANK YOU, YOUR HONOR. COURT IS ADJOURNED. MATTER WERE CONCLUDED.) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Apple v. Samsung Page 86 Hearing Transcript 9/28/11 1 2 3 CERTIFICATE OF REPORTER 4 5 6 7 I, THE UNDERSIGNED OFFICIAL COURT 8 9 REPORTER OF THE UNITED STATES DISTRICT COURT FOR 10 THE NORTHERN DISTRICT OF CALIFORNIA, 280 SOUTH 11 FIRST STREET, SAN JOSE, CALIFORNIA, DO HEREBY 12 CERTIFY: 13 THAT THE FOREGOING TRANSCRIPT, 14 CERTIFICATE INCLUSIVE, CONSTITUTES A TRUE, FULL AND 15 CORRECT TRANSCRIPT OF MY SHORTHAND NOTES TAKEN AS 16 SUCH OFFICIAL COURT REPORTER OF THE PROCEEDINGS 17 HEREINBEFORE ENTITLED AND REDUCED BY COMPUTER-AIDED 18 TRANSCRIPTION TO THE BEST OF MY ABILITY. 19 20 21 22 __________________________ SUMMER A. FISHER, CSR, CRR 23 CERTIFICATE NUMBER 13185 24 25 Apple v. Samsung Page 87

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