Motorola Mobility, Inc. v. Apple, Inc.

Filing 235

REPLY to Response to Motion re 224 MOTION to Compel Responses to Interrogatories Regarding Set-Top Box Patents (Nos. 19-22) filed by Apple, Inc.. (Attachments: # 1 Affidavit Declaration of Jason Lang, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D)(Pace, Christopher) Modified on 2/10/2012 (ls).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
Case No. 1:10cv023580-Civ-RNS-TEB
MOTOROLA MOBILITY, INC.,
Plaintiff,

JURY TRIAL DEMANDED

v.
APPLE INC.,
Defendant.
APPLE INC.,
Counterclaim Plaintiff,
v.
MOTOROLA, INC. and
MOTOROLA MOBILITY, INC.,
Counterclaim Defendants.

APPLE INC.’S REPLY IN SUPPORT OF ITS MOTION TO COMPEL RESPONSES TO
INTERROGATORIES REGARDING SET-TOP BOX PATENTS (NOS. 19-22)

I.

INTRODUCTION
The most striking thing about Motorola’s opposition brief is the absence of any

attempt to deny that Apple’s Interrogatory Nos. 19-22 seek core information needed to prove its
infringement allegations with respect to U.S. Patent Nos. 5,583,560, 5,594,509, and 5,621,456
(collectively, “set-top box patents” or “STB patents”) or that Motorola is in possession of the
information sought by those interrogatories. Instead, Motorola’s brief argues that not only did it
have relevant information in its possession, but it had so much relevant information that it found
Apple’s interrogatories overly burdensome and chose to withhold all responsive documents.
Moreover, it appears that Motorola never intended to supplement its responses to Interrogatory
Nos. 19-22, despite misleading representations made to the contrary. Motorola now resorts to
excuses and objections that were raised for the first time in its opposition. Had those objections
been raised during the prolonged meet and confer process, however, Apple would have been
more than willing to clarify the scope of its interrogatories.
II.

ARGUMENT
A.

Whether Motorola Promised to Supplement its Responses
Motorola’s account of the meet and confer history is telling. Motorola devotes

three full pages in its opposition brief detailing how its email correspondence was carefully
crafted to avoid specifically promising that it would supplement its responses to Interrogatory
Nos. 19-22. In essence, the crux of Motorola’s argument appears to be that Apple’s counsel
misunderstood and wrongly assumed that Motorola was planning to supplement its interrogatory
responses, even though Motorola never actually agreed to do so. Motorola, however, has a duty
to produce relevant documents and respond to Apple’s interrogatories independent of whether its
counsel makes any promises to do so.
Even assuming for the sake of argument that the inclusion of Interrogatory Nos.
20 & 22 in Mr. Quarmby’s November 21, 2011 letter was not intended to reflect an agreement to
provide substantive responses to those interrogatories, Motorola does not and cannot dispute that
Apple complained that Motorola’s responses to Apple’s third set of interrogatories were deficient

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on December 21, 2011 (two days after they were served) and repeatedly requested
supplementation. Ho Decl. ¶ 15 & Exs. N, O, and Q.1 Nor does Motorola dispute that it was
unprepared to exchange supplemental interrogatory responses on the December 16 deadline
Motorola itself proposed and sought additional time, see Ho Decl. ¶ 14 & Ex. M, or that Apple’s
agreement to Motorola’s proposed extension to January 16 was conditioned on Motorola’s
representation that its supplemental responses to the interrogatories raised during meet and
confer would be substantive in nature. Ho Decl. ¶ 16 & Ex. P. Notably, Motorola declined to
submit declarations in support of its opposition brief from any of the individuals who
participated in the relevant meet and confers. Instead, Motorola openly admits that it promised
Apple that “our supplementation will include any supplemental responses for the third set,” see
Opp. Br. at 4; Ho Decl. Ex. P, but argues that this did not mean Motorola was actually promising
to supplement anything. Opp Br. at 8-9. Had Apple shared this understanding, it never would
have agreed to the extension requested by Motorola, nor would additional time have been
necessary. In fact, if Motorola had been forthcoming that it was not planning to supplement its
responses to Interrogatory Nos. 19-22, Apple would have insisted on an earlier exchange and
perhaps filed this motion weeks ago. Even viewed in the light most favorable to Motorola, the
facts suggest that Motorola deliberately misled Apple into believing that it would supplement
these interrogatories to gain additional time to respond to other interrogatories.
B.

Whether Apple Properly Met and Conferred
Motorola’s allegation that Apple did not properly meet and confer is

disingenuous. Motorola alleges that “Apple never sought to meet and confer to discuss or
narrow the language of its Interrogatories” and attempts to justify its failure to respond by
arguing that Apple’s interrogatories are vague and overbroad. Opp. Br. at 6, n.4. Yet, during the
meet and confer process, not once did Motorola state that the reason it was refusing to
supplement its answers to Interrogatories Nos. 19-22 was that it believed those interrogatories to
1

References to “Ho Decl.” refer to the Declaration of Jill J. Ho in Support of Apple Inc.’s
Motion to Compel Responses to Interrogatories Regarding Set-Top Box Patents (Nos. 19-22).

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be vague or overly broad. Ho Decl. ¶¶ 20-21; Lang Decl. ¶¶ 2-3.2 Motorola states that “Apple’s
failure to meet and confer on ‘the issues to be raised in the motion’ violates Local Rule
7.1(a)(3).” Opp. Br. at 6, n.4. But this argument ignores the fact that meeting and conferring is a
two-way street. If Motorola had anticipated that its vagueness or overbreadth objections were
going to be among “the issues” in this motion, it should have raised those points during meet and
confer, not for the first time in its opposition brief. Instead, counsel for Motorola merely stated
that Motorola believed no supplementation was necessary, even going so far as to suggest that
Apple’s counsel was misinterpreting Motorola’s documents and improperly drawing the
conclusion that Motorola had the requested information in its possession. Lang Decl. ¶ 2. At no
point did Motorola ask Apple to clarify or narrow the scope of its interrogatories. Id. Thus,
Motorola’s argument that Apple failed to properly meet and confer should be rejected.
C.

Whether Motorola Properly Objected to Apple’s Interrogatories
As shown in Apple’s opening brief, Motorola’s responses to its interrogatories

include a laundry list of boilerplate objections.

For example, Motorola’s response to

Interrogatory 20 includes the following objections: (1) attorney-client privilege; (2) attorney
work-product doctrine; (3) joint defense privilege; (4) the common interest doctrine; (5) any
other applicable privilege or immunity: (6) calls for legal conclusion or presents a question of
law; (7) calls for expert testimony or opinion; (8) is premature in light of the Court’s scheduling
order; (9) overly broad; (10) unduly burdensome; (11); not relevant to the claims or defenses of
any party to the extent it is not limited to the asserted claims; (12) lacks limit as to temporal
scope; (13) lacks limit as to geographic scope; (14) vague and ambiguous; (15) comprises
multiple interrogatories; and (16) seeks to add theories contrary to the relief sought and granted
by Apple’s Motion to Strike Motorola’s Supplemental Infringement Contentions.
Had Motorola raised during meet and confer what it now claims are its true
objections, i.e., vagueness and overbreadth, Apple would have been and is willing to clarify the
2

References to “Lang Decl.” refer to the Declaration of J. Jason Lang in Support of Apple Inc.’s
Motion to Compel Responses to Interrogatories Regarding Set-Top Box Patents (Nos. 19-22).

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scope of its interrogatories. First, with regard to Motorola’s objection that the phrase “set-top
box … with an interactive program guide” is vague, Apple has pointed to numerous documents
in Motorola’s own production that refer to interactive programming guide (“IPG”) or electronic
programming guide (“EPG”) software. See, e.g., Ho Decl. Exs. U, X, Y, Z, CC, and DD. As for
Motorola’s contention that Apple’s interrogatories seek information about Motorola set-top
boxes (STBs) that are not accused, had Motorola raised this issue, Apple would have clarified
that its interrogatories are limited to the Motorola STBs identified in its Infringement
Contentions. Finally, to address Motorola’s overbreadth objection, Apple is willing to narrow
the scope of its interrogatories with reasonable temporal limits as well as a reasonable limit on
the number of cable providers (e.g., providers that sell, lease, or otherwise provide the Motorola
accused STBs to end-users). Yet, Motorola did not raise these issues or propose a compromise;
thus, its eleventh-hour attempt to hide behind these objections should be rejected.
D.

Whether Motorola Possesses the Requested Information
Motorola never denies that it is in possession of the information requested by

Apple’s Interrogatory Nos. 19-22.

On the contrary, with respect to Interrogatory No. 19,

Motorola’s primary objection appears to be that it has too much information to provide a
response. Putting aside the fact that Motorola openly admits that it is still “in the process” of
producing relevant documents with only five weeks left in the fact discovery period, see Opp. Br.
at 7, the very rule Motorola cites in its brief requires it to supplement its interrogatory response
with the Bates ranges of documents it believes to be relevant.3 When pressed to supplement its
responses, Motorola repeatedly stated that it believed its responses to be complete and had no
intention of supplementing. Lang Decl. ¶¶ 2-3. Given Motorola’s “rolling production” of
admittedly responsive documents, however, its interrogatory response cannot be complete.

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Even if the information sought by Apple could more easily be gleaned from Motorola’s
documents than from a narrative description, Federal Rule of Civil Procedure 33(d)(1) expressly
provides that the responding party may answer by “specifying the records that must be reviewed,
in sufficient detail to enable the interrogating party to locate and identify them as readily as the
responding party could.”

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As for Interrogatory Nos. 20-22, Motorola’s responses remain woefully deficient.
For example, Motorola merely responded to Interrogatory No. 20 that: “Mobility has not sold in
the United States set top boxes that include a program guide of any type.” This fails to provide
information about Motorola set-top boxes “manufactured, used, distributed, sold, offered for
sale, or imported with an interactive program guide, by or on behalf of Motorola,” which would
include information regarding Motorola’s own use of its STBs in conjunction with an IPG—e.g.
during testing—and information regarding STBs distributed to end-users on behalf of Motorola,
not just STBs sold by Motorola to cable companies. The true meaning of Motorola’s carefully
chosen phrasing has only recently come to light. After weeks of hiding the ball, on February 7,
2012, Motorola finally explained its view that it does not sell any STBs “with IPGs” because
“[t]he installation of IPGs occurs post-sale, after the accused set-top boxes are received by
Motorola’s customers.” See Lang Decl. ¶ 5 & Ex. B. Even if true, the fact that IPGs are
installed post-sale does not excuse Motorola from liability under Apple’s theory of indirect
infringement or from its obligation to fully respond to Apple’s interrogatories.
There is no dispute that Motorola possesses the information requested by
Interrogatory Nos. 20-22. In the wake of Apple filing the instant motion, Motorola has finally
admitted that it possesses (and failed to previously produce) responsive documents as well as
executable IPG code. Lang Exs. B & C. In a February 8, 2012 email, Motorola’s counsel even
acknowledges that Motorola is only “now” producing documents that it knew about “since midNovember 2011, immediately after Apple sent its subpoenas to Motorola’s customers.” Lang
Decl. ¶ 6 & Ex. C. That Apple has been and continues to be prejudiced by Motorola’s delay
tactics is only underscored by the fact that three months later, subpoenaed third parties continue
to insist that Apple obtain the requested information from Motorola. Lang Decl. ¶ 4 & Ex. A.
III.

CONCLUSION
For the reasons described herein and in Apple’s opening brief, the Court should

compel Motorola to provide complete responses to Interrogatory Nos. 19-22.

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Dated: February 9, 2012

Respectfully submitted,
_/s/ Christopher R. J. Pace ____________
Christopher R. J. Pace
[e-mail]
Edward Soto
[e-mail]
WEIL, GOTSHAL & MANGES LLP
1395 Brickell Avenue, Suite 1200
Miami, FL 33131
Telephone: [phone]
Facsimile: [phone]
Attorneys for Apple Inc.

Of Counsel:
Matthew D. Powers
[e-mail]
Steven Cherensky
[e-mail]
Tensegrity Law Group LLP
201 Redwood Shores Parkway
Redwood Shores, CA 94065
Telephone: [phone]
Facsimile: 650-802-6001
Jill J. Ho
[e-mail]
WEIL, GOTSHAL & MANGES LLP
201 Redwood Shores Parkway
Redwood Shores, CA 94065
Telephone: [phone]
Facsimile: [phone]
Mark G. Davis
[e-mail]
WEIL, GOTSHAL & MANGES LLP
1300 Eye Street, N.W., Suite 900
Washington, DC 20005
Telephone: [phone]
Facsimile: [phone]

Robert T. Haslam
[e-mail]
COVINGTON & BURLING LLP
333 Twin Dolphin Drive, Suite 700
Redwood Shores, CA 94065
Telephone: [phone]
Facsimile: [phone]
Robert D. Fram
[e-mail]
Christine Saunders Haskett
[e-mail]
Samuel F. Ernst
[e-mail]
COVINGTON & BURLING LLP
One Front Street
San Francisco, CA 94111
Telephone: [phone]
Facsimile: [phone]

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CERTIFICATE OF SERVICE
I hereby certify that on February 9, 2012, I electronically filed the foregoing
document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document
is being served this day on all counsel of record or pro se parties identified on the attached
Service List in the manner specified, either via transmission of Notices of Electronic Filing
generated by CM/ECF or in some other authorized manner for those counsel or parties who are
not authorized to received electronically Notices of Electronic Filing.

/s/ Christopher R. J. Pace
Christopher R. J. Pace (Fla. Bar No. 0721166)

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SERVICE LIST
Motorola Mobility, Inc. versus Apple Inc.
Case No. 1:10cv023580-Civ-RNS
United States District Court, Southern District of Florida
Edward M. Mullins
Fla. Bar No. 863920
[e-mail]
ASTIGARRAGA DAVIS MULLINS & GROSSMAN, P.A.
701 Brickell Avenue, 16th Floor
Miami, FL 33131
Telephone: [phone]
Facsimile: [phone]
Of Counsel:
Charles K. Verhoeven
David A. Perlson
Anthony Pastor
QUINN EMANUEL URQUHART & SULLIVAN, LLP
50 California Street, 22nd Floor
San Francisco, CA 93111
[phone]
Raymond N. Nimrod
Edward J. DeFranco
QUINN EMANUEL URQUHART & SULLIVAN, LLP
51 Madison Avenue, 22nd Floor
New York, NY 10010
[phone]
David A. Nelson
QUINN EMANUEL URQUHART & SULLIVAN, LLP
500 West Madison Street, Suite 2450
Chicago, IL 60661
[phone]
[e-mail]
Attorneys for Motorola Mobility, Inc. and Motorola, Inc.
Electronically served via email

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