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)
EXHIBIT 21
Hearing Transcript 9/28/11
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
APPLE, INC.,
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PLAINTIFF,
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VS.
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SAMSUNG ELECTRONICS CO.,
LTD., ET AL,
DEFENDANT.
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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
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SAN JOSE, CALIFORNIA
P R O C E E D I N G S
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(WHEREUPON, COURT CONVENED AND THE
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FOLLOWING PROCEEDINGS WERE HELD:)
THE COURT:
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PLEASE HAVE A
MR. RIVERA, WHENEVER YOU ARE READY, WOULD
YOU CALL THE MATTER ON THIS MORNING'S CALENDAR
THE CLERK:
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YES, YOUR HONOR.
CALLING APPLE, INC. VERSUS SAMSUNG
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GOOD MORNING.
SEAT.
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SEPTEMBER 28, 2011
ELECTRONICS, ET AL.
CASE NUMBER CV-11-1846.
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COUNSEL, PLEASE STATE YOUR APPEARANCES.
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MR. OVERSON:
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APPLE, INC.
THE COURT:
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MS. MAROULIS:
VICTORIA MAROULIS WITH
QUINN EMANUEL ON BEHALF OF SAMSUNG.
AND WITH ME IS MR. KEVIN JOHNSON ALSO FOR
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MR OVERSON, GOOD MORNING,
SIR.
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WESLEY OVERSON ON BEHALF OF
SAMSUNG AND BRETT ARNOLD.
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THE COURT:
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WELCOME BACK, MS. MAROULIS.
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GOOD MORNING, GENTLEMAN.
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MR. OVERSON:
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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
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FROM APPLE, INC.
THE COURT:
GOOD MORNING TO EACH OF YOU
ALL RIGHT.
WELL, I HAVE REVIEWED THE
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AS WELL.
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FILINGS WITH RESPECT TO THIS MOTION AS WELL AS
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THE -- I SHOULD SAY, INCLUDING THE NUMEROUS
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DECLARATIONS THAT HAVE BEEN SUBMITTED, SO I FEEL AS
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IF I'M FAIRLY UP TO SPEED ON THE PAPER RECORD.
IT IS APPLE'S MOTION, SO I WILL BEGIN
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WITH COUNSEL FOR APPLE.
AND BEFORE WE TURN TO THE MATTERS AT HAND
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I HAD A PROCEDURAL QUESTION, I WANTED TO MAKE SURE
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I WAS UNDERSTANDING THE POSTURE OF THIS MOTION
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CORRECTLY.
WHEN DID LEAD TRIAL COUNSEL MEET BEFORE
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THIS MOTION WAS BROUGHT?
MR. OVERSON:
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YOUR HONOR.
THE COURT:
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AND WHO ATTENDED ON BEHALF OF
APPLE AND WHO ATTENDED ON BEHALF OF SAMSUNG?
MR. OVERSON:
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THE 15TH, I BELIEVE,
MR. JOHNSON FOR SAMSUNG AND
MR. JACOBS FOR APPLE.
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THE COURT:
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AND IS IT CORRECT TO UNDERSTAND THAT
Apple v. Samsung
OKAY.
Page 3
Hearing Transcript 9/28/11
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MR. JACOBS AND MR. JOHNSON WILL BE TRYING THIS
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CASE?
MR. OVERSON:
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YOUR HONOR.
MR. JOHNSON:
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YES, YOUR HONOR.
IT WAS
THE 16TH.
THE COURT:
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I CAN SAY SO FOR OUR SIDE,
ALL RIGHT.
I APPRECIATE
THAT.
MR. OVERSON:
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THANK YOU.
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IT WAS THE FRIDAY.
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MR. JACOBS:
IF I MAY, YOUR HONOR, JUST
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ON THAT TOPIC BECAUSE MR. JOHNSON AND I HAVE TALKED
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ABOUT THIS AS WELL.
WE ARE ON A VERY FAST PACE ON THIS CASE
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AND AS YOU MIGHT IMAGINE LEAD TRIAL COUNSEL ARE
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PULLED IN A VARIETY OF DIFFERENT DIRECTIONS AND WE
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HAVE BEEN TRYING TO FIGURE OUT HOW WE COULD MEET,
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WHAT WE UNDERSTAND YOUR DESIRES TO BE TO HAVE
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SERIOUS, REALLY INTENSE EFFORTS TO RESOLVE THESE
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DISPUTES BEFORE THEY TEE UP TO YOU WITHOUT BOGGING
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DOWN THE PROCESS GOING BACK AND FORTH BETWEEN THE
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PENINSULA.
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I DON'T KNOW IF YOU'VE SEEN ANYTHING IN
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OTHER CASES THAT YOU HAVE FOUND SATISFACTORY AS A
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SUBSTITUTE FOR LEAD COUNSEL MEETING AND CONFERRING
Apple v. Samsung
Page 4
Hearing Transcript 9/28/11
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IN PERSON THAT YOU WOULD BE OPEN TO, BUT SINCE YOU
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ASKED THE QUESTION I THOUGHT IT WOULD BE -THE COURT:
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SURE.
IT'S AN INTEREST I
SUSPECT MR. JOHNSON SHARES AS WELL.
WELL, FIRST EVER ALL, I THINK IT'S
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IMPORTANT TO NOTE PARTICULARLY ON THE RECORD, THIS
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IS NOT MY INTEREST, IT'S JUDGE KOH'S INTEREST AND
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ORDER, SO I'M NOT ABOUT TO MODIFY HER ORDER WITHOUT
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SPECIFIC DIRECTION FROM HER ON THAT.
I WOULD SUGGEST THAT IF YOU FOUND THIS
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PROCESS CUMBERSOME, PARTICULARLY IN THE CONTEXT OF
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THIS FAST TRACK IN ITS PRELIMINARY INJUNCTION
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PHASE, TWO THOUGHTS COME TO MIND.
ONE, THAT PERHAPS I MIGHT SUGGEST THAT
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THE BURDENS THAT YOU ALL FACE IN PRESENTING THESE
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ISSUES ARE SIMILAR TO THE BURDEN THE COURT HAS IN
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RESOLVING THEM, THAT OUGHT TO BE WEIGHED AND
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CONSIDERED BEFORE BRINGING A WAVE OF MOTIONS.
HAVING THAT SAID, IF YOU THINK A MORE
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STREAMLINE PROCESS WOULD BE APPROPRIATE ESPECIALLY
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NOW THAT DISCOVERY IS BEFORE MYSELF INSTEAD OF
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JUDGE KOH, I WOULD SUGGEST A SHORT LETTER OR MOTION
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TO JUDGE KOH WOULD BE THE APPROPRIATE COURSE.
I JUST DON'T BELIEVE I HAVE JURISDICTION
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TO OVERRULE THE ARTICLE III JUDGE ON THIS
Apple v. Samsung
Page 5
Hearing Transcript 9/28/11
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PARTICULAR ISSUE.
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MR. JACOBS:
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THE COURT:
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LET'S TURN TO THE MATTERS AT HAND.
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SO WHY DON'T YOU BEGIN MR. OVERSON.
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MR. OVERSON:
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IF YOU WOULD PERMIT ME JUST A FEW MINUTES
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THANK YOU VERY MUCH, JUDGE.
ALL RIGHT.
YES, YOUR HONOR.
FOR CONTEXT HERE.
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I KNOW THAT YOUR HONOR IS FAMILIAR WITH
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THE CASE AND HAS READ THE PAPERS BUT THIS CASE IS
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KIND OF -- THE BASIS OF THIS CASE IN THE
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PRELIMINARY INJUNCTION MOTION IS REALLY THE
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SIMILARITY, THE STRIKING SIMILARITY BETWEEN THE
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DESIGNS OF THE ACCUSED PRODUCTS AND THE APPLE
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PRODUCTS AND OF COURSE THE UNDERLYING PATENTS THAT
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ARE AT ISSUE.
THE COURT:
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WELL, IT IS THE DESIGNS THAT
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ARE CLAIMED IN THE PATENTS THAT ARE THE BASIS FOR
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YOUR DESIGN PATENT INFRINGEMENT CLAIM.
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MR. OVERSON:
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BUT AS YOUR HONOR CAN IMAGINE, WHEN APPLE
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SEES A PHONE THAT LOOKS LIKE -- THIS IS THE SAMSUNG
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AND THIS IS THE APPLE IPHONE.
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KIND OF SIMILARITY AND THE MARKET IMPACT THAT IT
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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
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AND THE URGENCY OF THE PROCEEDING.
THE COURT:
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SINCE YOU BROUGHT UP THE
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ISSUE OF THE PRODUCTS I DID HAVE A QUESTION UNDER
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EGYPTIAN GODDESS.
IS THE DESIGN OF THE PRODUCT ITSELF
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RELEVANT IN ANY WAY TO THE ANALYSIS, THE ORDINARY
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OBSERVER ANALYSIS?
MR. OVERSON:
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I WOULD SAY THAT IN THE
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CONTEXT OF THE PRELIMINARY INJUNCTION MOTION IT IS
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RELEVANT BECAUSE IT GOES TO THE MARKET IMPACT AND
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IRREPARABLE HARM.
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THE COURT:
ALL RIGHT.
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PUTTING ASIDE THE ISSUE OF IRREPARABLE
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HARM, WHICH I UNDERSTAND IS A PRETTY IMPORTANT PART
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OF YOUR MOTION AND WE'LL COME BACK TO IT, STRICTLY
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SPEAKING THOUGH UNDER THE FEDERAL CIRCUIT'S
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PRECEDENT, WOULD THE DISTRICT JUDGE IN EVALUATING
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THE LIKELIHOOD OF THE SUCCESS ON THE MERITS, THAT
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PRONG OF YOUR PI MOTION, WOULD SHE BE PERMITTED TO
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LOOK TO THE EMBODIMENTS OR MUST SHE CONSIDER HOW
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THESE PATENTS ARE CLAIMED AND NOTHING MORE?
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MR. OVERSON:
THE ANALYSIS CERTAINLY
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SHOULD CERTAINLY FOCUS ON THE --
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THE COURT:
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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:
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THE CLAIMS.
WE WOULD SAY IT'S TOTALLY IRRELEVANT,
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-- CLAIMS, AND BRINGING OF
HONOR.
THE COURT:
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SO IS IT LEGALLY PERMISSIBLE
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UNDER FEDERAL CIRCUIT PRECEDENT FOR HER TO CONSIDER
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THE DESIGN EMBODIMENT?
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MR. OVERSON:
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YOUR HONOR, THE JUDGE COULD CONSIDER.
THE COURT:
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ALL RIGHT.
I SUSPECT WE WILL
HEAR MORE ABOUT THAT.
ALL RIGHT.
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I WOULD SAY IT'S A FACTOR,
GO ON.
I'M SORRY FOR
INTERRUPTING.
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MR. OVERSON:
OKAY.
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AND WE ALSO HAVE, OF COURSE, AN IPAD II
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AND WE HAVE THE SAMSUNG TABLET.
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THE COURT:
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FULL DISCLOSURE, I'VE GOT MY
IPAD I UP HERE, SO LET'S GET THAT OUT ON THE TABLE.
MR. OVERSON:
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SO SAMSUNG'S POSITION IN
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THE PRELIMINARY INJUNCTION PROCEEDINGS IS THERE WAS
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JUST A NATURAL EVOLUTION OF PRODUCT DEVELOPMENT
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SUCH THAT THEIR PRODUCT ENDED UP LOOKING A LOT LIKE
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THE APPLE PRODUCTS, AND I THINK THEY HAVE TO
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ADDRESS THE SIMILARITY, EVEN JUDGE KOH STATED ON
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THE RECORD THAT THE PRODUCTS LOOK "STRIKINGLY
Apple v. Samsung
Page 8
Hearing Transcript 9/28/11
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SIMILAR."
WHETHER THERE'S A NATURAL EVOLUTION OR
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SOMETHING MORE, LIKE THE COPYING OF THE APPLE
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PRODUCT, IS VERY, VERY IMPORTANT TO THE MOTION.
AND WHAT WE ARE DOING IS WE ARE SEEKING
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EVIDENCE THAT IN FACT WHEN SAMSUNG CHOSE TO DEVELOP
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PRODUCTS THAT LOOK LIKE THESE PRODUCTS DO, WHEN
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THEY FIRST CHOSE TO GO THAT DIRECTION IN THE
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DESIGN, DID THEY CONSIDER AND REVIEW THE APPLE
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PRODUCTS AND MAKE A DECISION, WE WANT TO LOOK MORE
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LIKE THAT VERY SUCCESSFUL APPLE PRODUCT.
THE COURT:
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IF I MIGHT INTERRUPT AGAIN, I
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JUST WANT TO MAKE SURE I UNDERSTAND YOUR ARGUMENT
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CLEARLY.
IS IT APPLE'S THEORY THAT WHEN SAMSUNG
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FIRST DESIGNED THESE PRODUCTS THEY WERE LOOKING AT
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AND INDEED COPYING THE APPLE'S DESIGNS, OR IS IT
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THE REDESIGN OR ALLEGED REDESIGN?
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MR. OVERSON:
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OUR THEORY AS TO THE PHONES -- THERE'S
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YES.
THREE PHONES, ONE TABLET.
AS TO THE PHONES, THEY COPIED THE
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IPHONES, OKAY.
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COPIED THE IPAD.
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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
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THERE'S JUST THIS EVOLUTION, WE DIDN'T COPY.
AND IF I MAY, I'VE ALREADY GIVEN TO
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OPPOSING COUNSEL, I WOULD LIKE TO HAND UP TO THE
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BENCH A SET OF REFERENCE EXHIBITS.
IF YOU WOULD LOOK A TAB 1, YOUR HONOR,
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AGAIN, IN THE WAY OF SETTING THE STAGE, BUT I THINK
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IT'S IMPORTANT TO UNDERSTAND THE --
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MS. MAROULIS:
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QUICK OBJECTION TO THESE EXHIBITS?
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MATERIALS THAT WERE NEVER SUBMITTED WITH THE PAPERS
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THAT WERE FILED.
FIRST TIME NOW, THEY WERE NOT PART OF THE MOTION.
THE COURT:
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ALL RIGHT.
I WILL NOTE YOUR
OBJECTION.
I JUST WANT TO GET TO THE MERITS OF THIS
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THEY INCLUDE
SO WE ARE NOT ONLY SEEING THEM FOR THE
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YOUR HONOR, MAY I RAISE A
DISPUTE.
MS. MAROULIS:
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AND TO THE EXTENT
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MR. OVERSON WANTS TO GO INTO THE DESCRIPTION OF
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SAMSUNG'S CONFIDENTIAL DOCUMENTS, WE WILL NEED TO
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EXCUSE APPLE'S COUNSEL WHO IS PRESENT HERE.
THE COURT:
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AGAIN, I WILL LEAVE IT TO YOU
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ALL TO POLICE THAT.
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IMPLICATING PROTECTIVE ORDER, I'M SURE YOU WILL
Apple v. Samsung
IF THERE'S AN ISSUE
Page 10
Hearing Transcript 9/28/11
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TAKE APPROPRIATE STEPS TO REQUEST THE CLEARING OF
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THE COURTROOM OR MOVE ON TO ANOTHER DOCUMENT.
MS. MAROULIS:
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THERE'S A NUMBER OF
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DOCUMENTS IN MR. OVERSON'S STACK THAT ARE MARKED
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HIGHLY CONFIDENTIAL.
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THE COURT:
WELL, LET'S TAKE THIS ONE
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DOCUMENT AT A TIME.
I REALLY WANT TO GET TO THE
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MERITS OF YOUR DISPUTE.
MR. OVERSON:
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I UNDERSTAND, YOUR HONOR.
REALLY BRIEFLY, THE ARGUMENT IS FROM
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SAMSUNG'S SIDE THAT THERE'S A NATURAL EVOLUTION,
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BUT WHAT WE CAN SEE IS THE SMARTPHONES BEFORE THE
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IPHONE THAT SAMSUNG PUT OUT ON THE LEFT.
IN THE CENTER, THE IPHONE COMES OUT ON
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JANUARY 2007.
THEN ON THE RIGHT ARE SOME IPHONES
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THAT WERE DEVELOPED AFTERWARDS.
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SAY, THE ACCUSED DEVICE IS, IN OUR VIEW, SPOT ON.
THE COURT:
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AND NEEDLESS TO
NONE OF THE THREE DESIGN
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PATENTS THAT ARE BEING ASSERTED IN THIS PI PHASE
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CLAIM FEATURES WHICH ARE REVEALED WHILE THE
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PRODUCTS ARE OPERATING, RIGHT?
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IN OTHER WORDS, IT'S NOT ENTIRELY --
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MR. OVERSON:
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I BELIEVE THEY ARE EXTERIOR
FEATURES.
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Apple v. Samsung
THE COURT:
RIGHT.
Page 11
Hearing Transcript 9/28/11
SO ANY OF THESE INTERIOR ICON FEATURES,
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THEY ARE NOT RELEVANT TO THE ANALYSIS, CORRECT?
MR. OVERSON:
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YOUR HONOR.
MR. OVERSON:
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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
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EVIDENCE IS RELEVANT IN A PI CONTEXT.
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DON'T FARE AS WELL ON PI PROCESS BECAUSE IT'S
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COPIERS
BALANCING OF THE EQUITIES.
SOMEBODY WHO IS COPYING SOMEBODY ELSE'S
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PRODUCT IS NOT GOING TO GET MAYBE A BENEFIT OF THE
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DOUBT THAT SOMEBODY WHO JUST DESIGNED THE PRODUCT
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AND THEN IT HAPPENED TO INFRINGE.
THE COURT:
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THEY TELL YOU IN THEIR
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OPPOSITION, CORRECT, THAT YOU HAVE NO EVIDENCE OF
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COPYING, THEY PUT THAT ISSUE IN PLAY?
MR. OVERSON:
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THEY PUT THE ISSUE SQUARELY
IN PLAY.
AND WHAT WE'LL SEE AS A THEME THROUGH
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THIS HEARING, I BELIEVE, IS THAT SAMSUNG WILL NOT
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PRODUCE EVIDENCE THAT'S DIRECTLY RELEVANT TO THE
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ARGUMENTS THEY WERE MAKING.
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MANY OF THESE ISSUES INTO THE PI PROCESS AND YET
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THEY THINK THEY CAN MAKE THE ARGUMENTS ON THE
Apple v. Samsung
THEY ARE INJECTING
Page 12
Hearing Transcript 9/28/11
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AFFIRMATIVE SIDE WITHOUT BACKING IT UP WITH THE
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PRODUCTION OF THE DOCUMENTS THAT ARE RELEVANT TO
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THOSE ARGUMENTS.
SO WHAT APPLE IS LOOKING FOR IN DOCUMENT
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REQUEST NUMBER 1 IS DOCUMENTS WHEREBY THE SAMSUNG
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DECISION MAKERS AND DESIGNERS LOOK AT APPLE
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PRODUCTS AND EVALUATED THOSE PRODUCTS AND
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CONSIDERED THEM DURING THE PROCESS THAT THEY WERE
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ARRIVING AT THE DECISION TO COME OUT WITH THESE
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PRODUCTS, THE DESIGN OF THESE PRODUCTS.
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AND IT'S A PRETTY BASIC --
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THE COURT:
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ALL APPLE PRODUCTS OR ANY
APPLE PRODUCT?
MR. OVERSON:
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WELL, CERTAINLY THE
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PRODUCTS THAT ARE THE PHONES AND THE TABLETS,
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YOUR HONOR.
THE COURT:
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SO TO BE PRECISE THE
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EMBODIMENTS OF THE THREE DESIGN PATENTS THAT ARE
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BEING ASSERTED IN THIS PHASE, CORRECT?
MR. OVERSON:
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I THINK THAT'S RIGHT,
YOUR HONOR, YES.
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THE COURT:
OKAY.
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SO WHEN YOUR PAPERS REFER TO "APPLE
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PRODUCTS," WE'RE ALL ON THE SAME PAGE HERE, WE ARE
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TALKING ABOUT THE EMBODIMENTS OF THOSE THREE DESIGN
Apple v. Samsung
Page 13
Hearing Transcript 9/28/11
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PATENTS?
MR. OVERSON:
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THE MAC, YOUR HONOR.
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THE COURT:
WE ARE NOT TALKING ABOUT
NOR ARE WE TALKING ABOUT
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OTHER VERSIONS OF THESE PRODUCTS WHICH ARE NOT
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EMBODIMENTS OF THE CLAIMS.
MR. OVERSON:
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I THINK THAT'S CORRECT.
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DON'T THINK THERE'S ANY FURTHER EMBODIMENTS THAT
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I
NEED TO BE CONSIDERED.
WHAT -- SO WHEN WE HAVE MET AND CONFERRED
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ON THESE ISSUES WE HAVE GOTTEN NOWHERE.
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ASKED, WHO HAVE YOU TALKED TO?
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DONE TO COLLECT THESE DOCUMENTS?
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THE COURT:
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MR. OVERSON:
WE HAVE
WHO, WHAT HAVE YOU
WHAT DID THEY TELL YOU?
WORK PRODUCT.
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PRODUCT OBJECTION.
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IT'S A WORK
DONE TO DO THE COLLECTION.
SO THAT HAS LEFT US UP AGAINST A WALL
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WHERE WE CAN'T REALLY GET FURTHER.
SO THAT IS WHY IT IS CERTAINLY ONE OF THE
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THEY WON'T TELL US WHAT THEY'VE
REASONS WHY WE ARE HERE.
THEY HAVE GIVEN US SOME DOCUMENTS AND
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THEY HAVE MADE A BIG POINT IN THE PAPERS OF SAYING,
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LOOK, WE PRODUCED THINGS.
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DOCUMENTS.
Apple v. Samsung
THEY HAVE PRODUCED SOME
Page 14
Hearing Transcript 9/28/11
"SOME DOCUMENTS" IS NOT WHAT THE
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DISCOVERY OBLIGATIONS REQUIRE.
THEY HAVE NEVER
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SAID AND THEY DON'T SAY IN THE PAPERS, WE'VE DONE A
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REASONABLE SEARCH, WE'VE DONE A THOROUGH JOB AND WE
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HAVE GIVEN YOU ALL THE RESPONSIVE DOCUMENTS
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ALREADY.
THEY DO NOT SAY THAT AS TO ANY OF THESE
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REQUESTS AND CERTAINLY NOT AS TO THIS ONE HAVING TO
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DO WITH THE ANALYSIS OF APPLE PRODUCTS.
WHAT THEY HAVE GIVEN US IS DISTURBING IN
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THAT IT IS LARGELY NONRESPONSIVE AND REFLECTS, IN
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OUR VIEW, DISRESPECT OF THE PROCESS.
AND NOW I'M GOING TO REFER TO TAB 3 WHICH
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I THINK OPPOSING COUNSEL BELIEVES CONTAINS HIGHLY
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CONFIDENTIAL ATTORNEY'S EYES ONLY INFORMATION; IS
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THAT CORRECT, COUNSEL?
THE COURT:
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BOTTOM OF THE PAGE, RIGHT?
MS. MAROULIS:
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MR. OVERSON:
SO I'M FLAGGING THIS IN
CASE YOU WISH TO HAVE -MS. MAROULIS:
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THAT'S CORRECT,
YOUR HONOR.
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THAT'S WHAT IT SAYS ON THE
AND IT WOULD BE MY REQUEST
TO HAVE APPLE IN-HOUSE COUNSEL EXCUSED.
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Apple v. Samsung
THE COURT:
WELL, I THINK WE TALKED ABOUT
Page 15
Hearing Transcript 9/28/11
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CLEARING THE COURTROOM THE LAST TIME.
I CAN'T
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REMEMBER WHICH COUNSEL IN THE PATENT CASE I HAD THE
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DISCUSSION WITH IN THE PAST, BUT I'M NOT INCLINED
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TO DO THAT.
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I APPRECIATE THE DOCUMENTS MAY ILLUSTRATE
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CERTAIN POINTS, I THINK SAMSUNG'S POINT HERE IS THE
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BETTER ONE.
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ORDER AND LET'S HAVE AN OPEN DISCUSSION ABOUT
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WHAT'S AT STAKE HERE.
LET'S NOT IMPLICATE THIS PROTECTIVE
I DON'T NEED TO SEE THESE
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PAPERS TO UNDERSTAND YOUR POINT.
SO LET'S VOID ANY
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ISSUES THAT REQUIRE ME TO LOCK THE PUBLIC
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COURTHOUSE, OKAY.
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MR. OVERSON:
OKAY.
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BUT YOUR HONOR, I WILL HAVE TO REFER TO
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WHAT THE CONTENT IS OF WHAT THEY'VE PRODUCED AND I
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KNOW THAT SAMSUNG HAS TAKEN THE POSITION THAT I
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CAN'T DO THAT WITHOUT BREACHING THE PROTECTIVE
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ORDER IN FRONT OF SOMEONE FROM APPLE.
WE DON'T AGREE WITH THAT POSITION AS TO
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THESE DOCUMENTS, WE DON'T AGREE AT ALL.
I WANT TO
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MAKE THAT CLEAR.
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SIDE HAS SAID I CANNOT DO THIS WITHOUT BREACHING
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THE PROTECTIVE ORDER.
I'M JUST BEING RESPECTFUL OF ONE
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THE COURT:
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WELL, YOU KNOW I TRY TO SET THIS ON THE
Apple v. Samsung
ALL RIGHT.
Page 16
Hearing Transcript 9/28/11
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FAST TRACK AND BE AS AVAILABLE AND AS OPEN AS I CAN
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WITH YOU GUYS BUT I THINK I'VE MADE MY POSITION
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VERY CLEAR THAT I DON'T LIKE CLOSING COURTROOMS.
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IF WE ARE GOING TO TALK ABOUT
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CONFIDENTIALLY DESIGNATED INFORMATION, I DON'T SEE
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AS A PROCEDURAL MATTER THAT I CAN DO ANYTHING OTHER
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THAN LOCK THE COURTROOM.
SO LET'S GET TO THE MERITS HERE, LET'S
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AVOID ANY OF THESE ISSUES AND FOCUS ON THE
ARGUMENT, ALL RIGHT?
MR. OVERSON:
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THE DOCUMENTS THAT ARE
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PRODUCED TO US, OVER A THOUSAND PAGES OF THEM WERE
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PICTURES, PICTURES OF THINGS THAT DON'T HAVE TO DO
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WITH THIS CASE.
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SO WHEN WE TAKE INTO ACCOUNT THAT THEY
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CLAIM WE'VE DONE THIS GREAT JOB, WE PRODUCED ALL
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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:
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CERTAINLY, BUT I DON'T
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THINK THERE WOULD BE THAT KIND OF BURDEN IF WE
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LIMIT THE SEARCH TERMS AS I'VE DESCRIBED.
SO WE UNDERSTAND THE TIME PRESSURE.
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DO UNDERSTAND THAT.
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WE
BUT WE ALSO UNDERSTAND THE
PREJUDICE THAT IS HAPPENING TO US.
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THERE ARE STATEMENTS FROM THEIR EXPERTS
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AND WE -- BY THE WAY, MOST ALL OF THE DEPOSITIONS
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HAVE BEEN EXPERTS SO FAR.
SO WHEN THE QUESTION WAS
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ASKED HAVE WE SEARCHED EVERYTHING, IT'S MOSTLY ALL
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EXPERTS.
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ONE CURRENT AMERICAN EMPLOYEE, NO KOREAN EMPLOYEES,
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SO THERE HASN'T BEEN THAT PROCESS FOR DEPOSITIONS
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HERE.
THERE'S BEEN ONE FORMER SAMSUNG EMPLOYEE,
BUT LET ME STAY ON POINT BECAUSE I'M
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CLOSING UP HERE.
THERE'S A PREJUDICE TO US.
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ARE COMING TO THE END.
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YOU CAN COME TO THE END AND SAY, YOU KNOW, THIS IS
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JUST TOO HARD AND THIS IS TOO MUCH EFFORT.
IT CANNOT BE THE CASE THAT
WE COULDN'T MOVE EARLIER.
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WE
THEY PRODUCED
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A LOT OF DOCUMENTS RIGHT ON THAT MEET AND CONFER
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DAY, SEPTEMBER 16TH.
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DOCUMENTS THAT WERE DUE ON THAT FRIDAY NIGHT AND
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SATURDAY.
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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
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WE'VE DONE THE BEST WE COULD TO GET THIS IN FRONT
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OF THE COURT.
AND WE NEED THE COURT'S ASSISTANCE IN
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MOVING THIS FORWARD AND COMING UP WITH SOME FAIR
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RESOLUTION SO WE DON'T END UP IN A SITUATION WHERE
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WE ARE STANDING THERE ON THE 13TH NOT HAVING
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RECEIVED RELEVANT EVIDENCE FROM THE OTHER SIDE IN
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THE FACE OF THE OTHER SIDE'S ALLEGATIONS THAT WE
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FAILED TO PRODUCE DOCUMENTS THAT ARE IN THEIR
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POSSESSION.
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OKAY.
THANK YOU.
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THE COURT:
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THANK YOU VERY MUCH.
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MS. MAROULIS, ANY SURREBUTTAL, AS THEY
ALL RIGHT.
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SAY IN OTHER PARTS OF THE COUNTRY?
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MS. MAROULIS:
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HAVE ANY SPECIFIC QUESTIONS.
THE COURT:
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NO, YOUR HONOR, UNLESS YOU
NO, I THINK I UNDERSTAND YOUR
RESPECTIVE POSITIONS.
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I APPRECIATE THE ARGUMENT THIS MORNING.
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I WILL GET AN ORDER OUT JUST AS QUICKLY AS I CAN,
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ESPECIALLY IN LIGHT OF THE SCHEDULE YOU'RE ALL
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OPERATING UNDER.
AND THANK YOU FOR YOUR REMARKS THIS
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MORNING.
Apple v. Samsung
Page 85
Hearing Transcript 9/28/11
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MR. OVERSON:
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THE CLERK:
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(WHEREUPON, THE PROCEEDINGS IN THIS
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THANK YOU, YOUR HONOR.
COURT IS ADJOURNED.
MATTER WERE CONCLUDED.)
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Apple v. Samsung
Page 86
Hearing Transcript 9/28/11
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CERTIFICATE OF REPORTER
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I, THE UNDERSIGNED OFFICIAL COURT
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REPORTER OF THE UNITED STATES DISTRICT COURT FOR
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THE NORTHERN DISTRICT OF CALIFORNIA, 280 SOUTH
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FIRST STREET, SAN JOSE, CALIFORNIA, DO HEREBY
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CERTIFY:
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THAT THE FOREGOING TRANSCRIPT,
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CERTIFICATE INCLUSIVE, CONSTITUTES A TRUE, FULL AND
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CORRECT TRANSCRIPT OF MY SHORTHAND NOTES TAKEN AS
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SUCH OFFICIAL COURT REPORTER OF THE PROCEEDINGS
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HEREINBEFORE ENTITLED AND REDUCED BY COMPUTER-AIDED
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TRANSCRIPTION TO THE BEST OF MY ABILITY.
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__________________________
SUMMER A. FISHER, CSR, CRR
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CERTIFICATE NUMBER 13185
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Apple v. Samsung
Page 87
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