Nokia Corporation v. Apple Inc.

Filing 355

NOTICE of Subpoena to Thomas C. Mavrakakis by Nokia Corporation, Nokia Inc. (Attachments: # 1 Exhibit A)(Smith, Rodger)

EXHIBIT 1

AO 88A (Rev. 06/09) Subpoena to Testify at a Deposition in a Civil Action

UNITED STATES DISTRICT COURT
for the
__________ District of __________
Northern District of California
Nokia Corporation

)
)
)
)
)
)

Plaintiff

v.
Apple Inc.
Defendant

Civil Action No. 1:09-cv-00791-GMS
(If the action is pending in another district, state where:
__________ Districtof Delaware
District of __________

)

SUBPOENA TO TESTIFY AT A DEPOSITION IN A CIVIL ACTION
To: Thomas C. Mavrakakis, Bridges & Mavrakakis LLP, 540 Cowper Street, Suite 100, Palo Alto, CA 94301

✔
u Testimony: YOU ARE COMMANDED to appear at the time, date, and place set forth below to testify at a
deposition to be taken in this civil action. If you are an organization that is not a party in this case, you must designate
one or more officers, directors, or managing agents, or designate other persons who consent to testify on your behalf
about the following matters, or those set forth in an attachment:
Place: Alston & Bird LLP, 275 Middlefield Road, Suite 150

Date and Time:
06/07/2011 9:30 am

Menlo Park, CA 94025-4008

The deposition will be recorded by this method:

Court Reporter and videographer

✔
u Production: You, or your representatives, must also bring with you to the deposition the following documents,
electronically stored information, or objects, and permit their inspection, copying, testing, or sampling of the
material:
Please see Attachment A for document requests. Please produce documents responsive to the attached requests no
later than June 1, 2011 at Alston & Bird LLP, 275 Middlefield Road, Suite 150, Menlo Park, CA 94025-4008.

The provisions of Fed. R. Civ. P. 45(c), relating to your protection as a person subject to a subpoena, and Rule
45 (d) and (e), relating to your duty to respond to this subpoena and the potential consequences of not doing so, are
attached.
Date:

05/10/2011

CLERK OF COURT
OR
/s/ Matthew D. Richardson
Signature of Clerk or Deputy Clerk

Attorney’s signature

The name, address, e-mail, and telephone number of the attorney representing (name of party)
Nokia Corporation and
Nokia Inc.
, who issues or requests this subpoena, are:
Matthew D. Richardson, Esq., 1201 W Peachtree St., Atlanta, GA 30309-3424; [e-mail];
404-881-4478

AO 88A (Rev. 06/09) Subpoena to Testify at a Deposition in a Civil Action (Page 2)

Civil Action No. 1:09-cv-00791-GMS
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 45.)
This subpoena for (name of individual and title, if any)
was received by me on (date)

.

u I served the subpoena by delivering a copy to the named individual as follows:
on (date)

; or

u I returned the subpoena unexecuted because:
.
Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also
tendered to the witness fees for one day’s attendance, and the mileage allowed by law, in the amount of
$
My fees are $

.
for travel and $

for services, for a total of $

I declare under penalty of perjury that this information is true.

Date:
Server’s signature

Printed name and title

Server’s address

Additional information regarding attempted service, etc:

0.00

.

AO 88A (Rev. 06/09) Subpoena to Testify at a Deposition in a Civil Action (Page 3)

Federal Rule of Civil Procedure 45 (c), (d), and (e) (Effective 12/1/07)
(c) Protecting a Person Subject to a Subpoena.
(1) Avoiding Undue Burden or Expense; Sanctions. A party or
attorney responsible for issuing and serving a subpoena must take
reasonable steps to avoid imposing undue burden or expense on a
person subject to the subpoena. The issuing court must enforce this
duty and impose an appropriate sanction — which may include lost
earnings and reasonable attorney’s fees — on a party or attorney
who fails to comply.
(2) Command to Produce Materials or Permit Inspection.
(A) Appearance Not Required. A person commanded to produce
documents, electronically stored information, or tangible things, or
to permit the inspection of premises, need not appear in person at the
place of production or inspection unless also commanded to appear
for a deposition, hearing, or trial.
(B) Objections. A person commanded to produce documents or
tangible things or to permit inspection may serve on the party or
attorney designated in the subpoena a written objection to
inspecting, copying, testing or sampling any or all of the materials or
to inspecting the premises — or to producing electronically stored
information in the form or forms requested. The objection must be
served before the earlier of the time specified for compliance or 14
days after the subpoena is served. If an objection is made, the
following rules apply:
(i) At any time, on notice to the commanded person, the serving
party may move the issuing court for an order compelling production
or inspection.
(ii) These acts may be required only as directed in the order, and
the order must protect a person who is neither a party nor a party’s
officer from significant expense resulting from compliance.
(3) Quashing or Modifying a Subpoena.
(A) When Required. On timely motion, the issuing court must
quash or modify a subpoena that:
(i) fails to allow a reasonable time to comply;
(ii) requires a person who is neither a party nor a party’s officer
to travel more than 100 miles from where that person resides, is
employed, or regularly transacts business in person — except that,
subject to Rule 45(c)(3)(B)(iii), the person may be commanded to
attend a trial by traveling from any such place within the state where
the trial is held;
(iii) requires disclosure of privileged or other protected matter, if
no exception or waiver applies; or
(iv) subjects a person to undue burden.
(B) When Permitted. To protect a person subject to or affected by
a subpoena, the issuing court may, on motion, quash or modify the
subpoena if it requires:
(i) disclosing a trade secret or other confidential research,
development, or commercial information;
(ii) disclosing an unretained expert’s opinion or information that
does not describe specific occurrences in dispute and results from
the expert’s study that was not requested by a party; or
(iii) a person who is neither a party nor a party’s officer to incur
substantial expense to travel more than 100 miles to attend trial.
(C) Specifying Conditions as an Alternative. In the circumstances
described in Rule 45(c)(3)(B), the court may, instead of quashing or
modifying a subpoena, order appearance or production under
specified conditions if the serving party:
(i) shows a substantial need for the testimony or material that
cannot be otherwise met without undue hardship; and
(ii) ensures that the subpoenaed person will be reasonably
compensated.

(d) Duties in Responding to a Subpoena.
(1) Producing Documents or Electronically Stored Information.
These procedures apply to producing documents or electronically
stored information:
(A) Documents. A person responding to a subpoena to produce
documents must produce them as they are kept in the ordinary
course of business or must organize and label them to correspond to
the categories in the demand.
(B) Form for Producing Electronically Stored Information Not
Specified. If a subpoena does not specify a form for producing
electronically stored information, the person responding must
produce it in a form or forms in which it is ordinarily maintained or
in a reasonably usable form or forms.
(C) Electronically Stored Information Produced in Only One
Form. The person responding need not produce the same
electronically stored information in more than one form.
(D) Inaccessible Electronically Stored Information. The person
responding need not provide discovery of electronically stored
information from sources that the person identifies as not reasonably
accessible because of undue burden or cost. On motion to compel
discovery or for a protective order, the person responding must show
that the information is not reasonably accessible because of undue
burden or cost. If that showing is made, the court may nonetheless
order discovery from such sources if the requesting party shows
good cause, considering the limitations of Rule 26(b)(2)(C). The
court may specify conditions for the discovery.
(2) Claiming Privilege or Protection.
(A) Information Withheld. A person withholding subpoenaed
information under a claim that it is privileged or subject to
protection as trial-preparation material must:
(i) expressly make the claim; and
(ii) describe the nature of the withheld documents,
communications, or tangible things in a manner that, without
revealing information itself privileged or protected, will enable the
parties to assess the claim.
(B) Information Produced. If information produced in response to a
subpoena is subject to a claim of privilege or of protection as trialpreparation material, the person making the claim may notify any
party that received the information of the claim and the basis for it.
After being notified, a party must promptly return, sequester, or
destroy the specified information and any copies it has; must not use
or disclose the information until the claim is resolved; must take
reasonable steps to retrieve the information if the party disclosed it
before being notified; and may promptly present the information to
the court under seal for a determination of the claim. The person
who produced the information must preserve the information until
the claim is resolved.
(e) Contempt. The issuing court may hold in contempt a person
who, having been served, fails without adequate excuse to obey the
subpoena. A nonparty’s failure to obey must be excused if the
subpoena purports to require the nonparty to attend or produce at a
place outside the limits of Rule 45(c)(3)(A)(ii).

ATTACHMENT “A” TO SUBPOENA
DEFINITIONS
A.

“Nokia” means Nokia Corporation and Nokia Inc., including their predecessors,
successors, parents, subsidiaries (whether owned directly or indirectly), affiliates,
divisions and operating units thereof, agents and entities under common control with
them.

B.

“Apple” means Apple Inc., including its predecessors, successors, parents, subsidiaries
(whether owned directly or indirectly), affiliates, divisions and operating units thereof,
agents and entities under common control with it.

C.

“Including” or any variant thereof means “including without limitation.”

D.

“And” and “or” shall mean “and/or,” and shall be construed both conjunctively as well as
disjunctively in order to maximize their scope.

E.

“Any” and “all” mean “any and all.”

F.

“Each” and “every” mean “each and every.”

G.

“You,” “your” or “yours” shall mean Thomas C. Mavrakakis.

H.

“Thing(s)” has the broadest meaning allowable under Federal Rule of Civil Procedure 34
and includes any tangible object other than a document and, without limitation, objects of
every kind and nature, as well as prototypes, models, or physical specimens thereof.

I.

“Document” has the broadest meaning allowable under Federal Rules of Civil Procedure
34, and includes, without limitation, any thing or any written or graphic matter or any
medium of any type or description upon which intelligence or information is recorded, or
from which intelligence or information can be perceived, including computer, electronic,
magnetic and optical media of all kinds, which is or has been in the possession, custody
or control of Thomas C. Mavrakakis, or of which Thomas C. Mavrakakis has knowledge,
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including the original and any non-identical copy (whether different from the original
because of notes made on said copy or otherwise) of any advertising literature;
agreement; bank record or statement; blueprint; book; book of account; booklet;
brochure; calendar; chart; circuit diagram; circular; coding form; communication (intraor inter-company); components listing; computer data; computer printout; computer
software and supporting indices; data; documentation; flow charts; comments; object
code; source code and computer programs; contract; copy; correspondence; data base;
design document; diary; die; display; draft of any document; drawing; electronic mail (email); engineering change order; engineering specification; film, film transparency; flyer;
forecast; graph; index; instruction; instruction manual or sheet; internet pages; invoice;
job requisition; letter; license; log; machine readable form; manual; manufacturing data;
manufacturing drawing; map; marketing plan; mask; memoranda; minutes; model;
newspaper or other clippings; notes; notebook; opinion; packing checklist; packing list;
pamphlet; paper; periodical or other publications; photograph; physical object; press
release; price list; print; printed circuit board; product brochure; product specification;
promotional literature; prototype; receipt; record; recorded read-only memory (ROM);
recording; report; sales data; schematic; sketch; solicitation; statement; statistical
compilation; stenographic note; study; summary (including any memoranda, minutes,
notes, records or summary of any (a) telephone or intercom conversation or message,
(b) conversation or interview, or (c) meeting or conference); technical, service or
operational manual; technical specification; telegram; telephone log; timing diagram;
travel or expense records; video recording; videotape; voice recording; voucher;
worksheet or work paper; and/or any other documentary material of any nature.

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J.

“Person” or “persons” shall mean an individual, corporation, proprietorship, partnership,
association, or any other entity.

K.

“Concerning” means concerning, regarding, describing, comprising, referring to, related
to, supporting, favoring, opposing, bolstering, detracting from, located in, considered in
connection with, bearing on, evidencing, indicating, reporting on, recording, alluding to,
responding to, connected with, commenting on, in respect of, about, in relation to,
discussing, showing, describing, reflecting, analyzing constituting, and being.

L.

"SSO" means any standards-setting organization responsible for establishing technical
standards for telecommunications products or services, including but not limited to ETSI,
IEEE, ITU, ARIB, 3GPP, 3GPP2, and TIA.

M.

"Standard" means any established industry standard for telecommunications products or
services, including but not limited to IS-95, GSM, GPRS, EDGE, UMTS, CDMA2000
(1xRTT and EV-D0), 802.11, and 802.16.

N.

"FRAND" means fair, reasonable, and non-discriminatory.

O.

"RAND" means reasonable and demonstrably free of any unfair discrimination.

P.

“Communication” means any contact between two or more entities by which any
information or knowledge is transmitted or conveyed or attempted to be transmitted or
conveyed, including written contact including letters, memoranda, telegrams, telefaxes,
telecopies, telexes or e-mails, text messages and oral contact including face-to-face
meetings, telephone conversations, voicemails, answering machine messages and
telephonic notes.

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Q.

“Relating to” or “related to” when referring to any given subject matter shall mean,
without limitation, any document that constitutes, comprises, involves, contains,
embodies, reflects, identifies, states, refers directly or indirectly to, or is in any way
relevant to the particular subject matter identified.

R.

The term “identify” when used in conjunction with a document or other thing means to
specify the document or thing in sufficient detail to permit Nokia to locate the document
or thing.

S.

The term “This Litigation” means the above-referenced action, entitled Nokia
Corporation v. Apple Inc., C.A. No. 09-791-GMS, United States District Court for the
District of Delaware.

INSTRUCTIONS
1.

You are to search all documents within your possession, custody, or control, wherever
located, including but not limited to any documents placed in storage facilities or in the
possession of any employee, agent, representative, attorney, investigator, or other person
acting or purporting to act on your behalf (whether located at his/her residence or place of
business), in order to fully respond to the requests herein.

2.

You are to produce documents from any single file in the same order as they were found
in such file, including any labels, files, folders and/or containers in which such
documents are located in or associated with. If copies of documents are produced in lieu
of the originals, such copies should be legible and bound or stapled in the same manner
as the original.

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3.

If you do not produce each document or thing requested herein as they are kept in the
usual course of business, you must organize and label the documents or things produced
to correspond with the particular document request to which the document or thing is
responsive.

4.

You are to produce all documents which are responsive in whole or in part to any of the
requests herein in full, without abridgement, abbreviation, or expurgation of any sort, and
regardless of whether you deem such documents to be irrelevant to the issues in the
investigation for which such documents are being sought. If any such documents cannot
be produced in full, produce the document to the extent possible and indicate in your
written response what portion of the document is not produced and why it could not be
produced.

5.

You are required to produce not only the original or an exact copy of the original of all
documents or things responsive to any of the requests herein, but also all copies of such
documents or things which bear any notes or markings not found on the originals and all
preliminary, intermediate, final, and revised drafts or embodiments of such documents or
things. You are also required to produce all versions of the foregoing documents stored
by a computer internally, on disk, on CD-ROM, or on tape.

6.

You are to produce any purportedly privileged document containing non-privileged
matter, with the purportedly privileged portion excised or redacted.

7.

If any of the documents requested herein are no longer in your possession, custody, or
control, you are requested to identify each such requested document by date, type of
document, person(s) from whom sent, person(s) to whom sent, and person(s) receiving
copies, and to provide a summary of its pertinent contents.

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8.

If any document responsive to these requests has been destroyed, describe the content of
such document, the location of any copies of such document, the date of such destruction,
and the name of the person who ordered or authorized such destruction.

9.

Electronic and computerized materials must be produced in an intelligible format or
together with a description of the system from which it was derived sufficient to permit
tendering of the material intelligible.

10.

If production of any document listed and described herein is withheld on the basis of a
claim of privilege, each withheld document shall be separately identified in a privileged
document list. The privileged document list must identify each document separately,
specifying for each document at least: (1) the date; (2) author(s)/sender(s);
(3) recipient(s), including copy recipients; and (4) general subject matter of the
document.

The sender(s) and recipient(s) shall be identified by position and entity

(corporation or firm, etc.) with which they are employed or associated. If the sender or
the recipient is an attorney or a foreign patent agent, he or she shall be so identified. The
type of privilege claimed must also be stated, together with a certification that all
elements of the claimed privilege have been met and have not been waived with respect
to each document.

DOCUMENT REQUESTS
REQUEST FOR PRODUCTION NO. 1:
All patent license agreements that Apple has entered into (either as licensor or licensee)
that grant a license to one or more patents or patent applications, including but not limited to
those that have been declared essential to any Standard and that are or were subject to a FRAND
or RAND commitment made by the licensor to an SSO.

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REQUEST FOR PRODUCTION NO. 2:
Documents that reflect negotiations between Apple and any third party over a license to
one or more patents or patent applications, including but not limited to those that have been
declared essential to any Standard and that are or were subject to a FRAND or RAND
commitment made by the licensor to an SSO.
REQUEST FOR PRODUCTION NO. 3:
Documents sufficient to show the royalties that Apple has paid or received under each IPR
license agreement that includes one or more patents or patents that have been declared
essential to any Standard and that are or were subject to a FRAND or RAND commitment
made by the licensor to an SSO.
REQUEST FOR PRODUCTION NO. 4:
All documents regarding any patent license negotiations between Nokia and Apple.
REQUEST FOR PRODUCTION NO. 5:
A copy of any license agreement where Apple has licensed any of its nonessential patents
to a third party.
REQUEST FOR PRODUCTION NO. 6:
Documents that reflect or discuss Apple’s willingness or lack of willingness to license
any of its non-essential patents to a third party, including but not limited to documents that
reflect or discuss any plans or program established or contemplated by Apple to license such
non-essential patents.

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REQUEST FOR PRODUCTION NO. 7:
All Documents that refer or relate to any licensing offer for standards-essential patents
in which Apple offered to provide a third party with a "grantback" or reciprocal pick of nonessential patents.
REQUEST FOR PRODUCTION NO. 8:
All Documents that refer or relate to any licensing offer for standards-essential patents in
which a third party requested from Apple a “grantback” or reciprocal pick of non-essential
patents.
REQUEST FOR PRODUCTION NO. 9:
Documents that refer or relate to Apple’s understanding of a party’s rights and
obligations under FRAND including but not limited to what constitutes a FRAND undertaking
and what rate constitutes a FRAND rate, and why.
REQUEST FOR PRODUCTION NO. 10:
Documents that refer or relate to your understanding of a party’s rights and obligations
under FRAND including but not limited to what constitutes a FRAND undertaking and what rate
constitutes a FRAND rate, and why.
REQUEST FOR PRODUCTION NO. 11:
Documents that refer or relate to This Litigation, including but not limited to
communications or agreements between Apple and Nokia, you and Apple, or you and Nokia
related to This Litigation.

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