NOKIA CORPORATION v. APPLE INC.

Filing 4

Memorandum in opposition to re 1 MOTION to Quash filed by NOKIA CORPORATION. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Declaration of Rohan Kale, # 11 Text of Proposed Order)(Brinkman, Paul)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA

NOKIA CORPORATION,
Plaintiff,
v.

Civil Action No. 1:11-mc-00295-RLW

Defendant.

Underlying Case in the District of Delaware
Civil Action No. 09-791-GMS
Assigned to: Honorable Gregory M. Sleet

APPLE INC.,

APPLE INC.,
Counterclaim-Plaintiff,
v.
NOKIA CORPORATION and NOKIA INC.,
Counterclaim-Defendants.
DECLARATION OF ROHAN KALE

DECLARATION OF ROHAN KALE
I, Rohan Kale, hereby declare as follows:
1.

I am an attorney at law licensed to practice before all of the courts of the

state of Georgia. I am an associate in the law firm of Alston & Bird LLP, counsel for
plaintiff Nokia Corporation (“Nokia”). I have knowledge of all of the following facts
and, if called as a witness, could and would competently testify thereto.
2.

Attached as Exhibit A is a true and correct copy of Nokia’s October 22,

2009 Complaint for Patent Infringement filed against Apple, Inc. in the United States
District Court for the District of Delaware.
3.

Attached as Exhibit B is a true and correct copy of Apple’s December 11,

2009 Answer and Counterclaims filed against Nokia.
4.

Attached as Exhibit C are true and accurate copies of initial office action

rejections issued by the United States Patent and Trademark Office with respect to US
Patents 5,455,854 and 5,315,703.
5.

Attached as Exhibit D are the reexamination interview summaries for US

Patents 5,315,703 and 5,455,854. It is my understanding that the interviews were
attended by Robert Sterne, Glenn Perry, Richard Coller, and Salvadore Bezos from the
law firm Sterne, Kessler, Goldstein, and Fox LLP. It is also my understanding that these
attorneys are not currently representing Apple in the ongoing litigation between Apple
and Nokia.
6.

Attached as Exhibit E are true and correct copies of the subpoenas issued

by this Court in connection with the above referenced action, and which Nokia served on
Messrs Robert Sterne, Glenn Perry, Richard Coller, and Sal Bezos on March 25, 2011.

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7.

Attached as Exhibit F are true and correct copies of the proofs of service

for the subpoenas issued by this Court in connection with the above reference action.
8.

Attached as Exhibit G is a true and correct copy of a letter dated April 8,

2011 from Byron Pickard, counsel for Sterne, Kessler, Goldstein, and Fox LLP, to me.
This letter contains the objections of Messrs. Sterne, Perry, Coller, and Bezos to Nokia’s
subpoenas (Ex. E).
9.

On April 13, 2011, I conferred telephonically with Byron Pickard

regarding the deposition subpoenas issued by this Court. During the conversation, Mr.
Pickard and I disagreed on the relevancy of the deposition testimony and whether it
would touch on matters protected by attorney-client privilege. I explained that Messrs.
Sterne, Perry, Coller, and Bezos were present at the reexamination interviews of two of
the patents at suit in the ongoing Delaware litigation and as such have personal
knowledge as to the non-privileged details that transpired. Mr. Pickard refused to
provide alternative dates for depositions and instead offered to provide a Rule 30(b)(6)
corporate designee to testify on narrowly designated topics.
10.

On April 14, 2011, I notified Mr. Pickard that testimony from a Rule

30(b)(6) corporate designee as an alternative to testimony from the subpoenaed witnesses
is unacceptable to Nokia and again requested alternative deposition dates. On April 19,
2011, Mr. Pickard informed me that the witnesses would not appear on the dates
specified on the subpoenas.
11.

On April 29, 2011, I made a final attempt to obtain alternative deposition

dates by sending another email to Mr. Pickard. I notified Mr. Pickard of Nokia’s intent to
seek judicial enforcement of the subpoenas if we did not receive proposed dates.

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12.

Attached as Exhibit H is a true and correct copy of the email

correspondence between Mr. Pickard and myself from April 8, 2011 to April 29, 2011.
13.

On May 4, 2011, Mr. Pickard indicated his belief that Nokia is not entitled

to depose Apple’s attorneys and provided a list of objections. Mr. Pickard further
requested that Nokia withdraw the subpoenas.
14.

On May 5, 2011, I communicated, to Mr. Pickard, my disappointment by

their refusal to comply with the subpoenas and responded to the list of objections from
his May 4 email. I again told Mr. Pickard that the subpoenas seek deposition testimony
that relates to highly relevant, non-privileged testimony that directly affects the patents
involved in the Delaware litigation. I also explained that the details of the events at the
reexamination interview are not in the public domain and Nokia is entitled to depose
everyone who was present at the reexamination interviews. I also stated that Nokia has
never withdrawn the subpoenas to Messrs. Sterne, Perry, Coller, and Bezos.
15.

Attached as Exhibit I is a true and correct copy of the final email

correspondence between Mr. Pickard and myself from May 4, 2011 to May 5, 2011.

Dated: June 3, 2011

_________________________

Rohan Kale

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