Motorola Mobility, Inc. v. Apple, Inc.

Filing 333

Plaintiff's MOTION to Enforce Order Compelling Rule 30(b)(6) Deposition Testimony from Apple and Accompanying Memorandum of Law in Support by Motorola Mobility, Inc.. (Attachments: # 1 Composite Exhibit A)(Mullins, Edward)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 1:10-cv-23580-SCOLA/BANDSTRA

MOTOROLA MOBILITY, INC.,
Plaintiff,
v.

JURY TRIAL DEMANDED

APPLE INC.,
Defendant.

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

MOTOROLA’S MOTION TO ENFORCE ORDER
COMPELLING RULE 30(b)(6) DEPOSITION TESTIMONY FROM
APPLE AND ACCOMPANYING MEMORANDUM OF LAW IN SUPPORT

CASE NO. 1:10-cv-23580-SCOLA/BANDSTRA

Pursuant to Federal Rule of Civil Procedure 30(b)(6), 37(a) and S.D. Local Rules 7.1(e),
26.1, Plaintiff and Counterclaim Defendant Motorola Mobility, Inc. (“Motorola”) respectfully
submits this motion requesting that the Court enforce its Order entered March 30, 2012, which
compelled Defendant and Counterclaim Plaintiff Apple Inc. (Apple”) to provide Rule 30(b)(6)
testimony relating to Rule 30(b)(6) First Notice Topics 59 and 60 regarding the email
notification function for iOS 5 and the source code for the webmail functionality of Apple’s
accused MobileMe product.
This motion should be granted for the reasons set forth in the memorandum of law below.
MEMORANDUM OF LAW
I.

PRELIMINARY STATEMENT
Motorola brings this motion because Apple refuses even to attempt to schedule Court-

ordered 30(b)(6) testimony unless Motorola agrees to conditions imposed by Apple, none of
which are required by the Court’s order. Apple’s refusal flagrantly disregards this Court’s Order
entered March 30, 2012, which directed that “Apple shall produce Rule 30(b)(6) witnesses with
knowledge regarding the e-mail notification function for iOS 5 and the source code for the
webmail functionality of Apple’s accused MobileMe product within ten (10) days of the date of
this Order or as otherwise agreed by the parties.” (D.E. 289 at 1-2.) In addition, after Motorola
filed its motion, but before the Court entered its Order, Apple agreed that it would also provide
Rule 30(b)(6) testimony on text message notifications (analogous to the email notifications) if
the Court compelled 30(b)(6) testimony for email notifications, which the Court so ordered.
Thus, there can be no dispute—and Apple does not dispute—that Apple must provide the
testimony that Motorola seeks.

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CASE NO. 1:10-cv-23580-SCOLA/BANDSTRA
Nonetheless, Apple has stonewalled Motorola. It first refused to provide the testimony
until after the close of fact discovery currently, May 4.1 When Motorola made clear that it
would seek relief from the Court if Apple did not provide the testimony before May 4, Apple
stated it would not even contact its engineers to schedule their testimony unless Motorola agreed
that Motorola would not seek any depositions on the same topics in Motorola’s other pending
action against Apple. Apple’s unilaterally imposed condition directly contradicts the Court’s
Order. Accordingly, Motorola requests that the Court enforce its Order and require Apple to
provide the 30(b)(6) testimony that Motorola seeks without conditions.
II.

STATEMENT OF FACTS
Motorola’s Motion to Compel on E-Mail Notifications and the Source Code for Webmail

for MobileMe and the Court’s Order Granting that Motion. Motorola filed a motion to compel
on March 9, 2012, seeking two sets of 30(b)(6) testimony, which Motorola had noticed but
which Apple refused to provide. (D.E. 260) In particular, Motorola sought 30(b)(6) testimony
on the email notification function for iOS 5 and the source code for the webmail functionality of
Apple’s accused MobileMe product. (Id.) On March 30, 2012, the Court entered an order
granting Motorola’s motion, giving Apple ten days to provide testimony on those two issues,
unless otherwise agreed to by the parties. (D.E. 289.)
The Parties’ Related Dispute over 30(b)(6) Testimony Regarding Text Message
Notifications For iOS Devices. After Motorola filed its motion to compel, a discovery dispute
arose concerning a third topic of 30(b)(6) testimony, testimony relating to text messaging
notifications on Apple’s Accused iOS devices with text messaging functionality. Text message
notifications relate to the same infringement issues as the email notifications that Motorola
1

On April 23, 2012, the Court ordered the parties to meet and confer on a new schedule,
which presumably would move the discovery cut-off date. (DE 327).

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CASE NO. 1:10-cv-23580-SCOLA/BANDSTRA
addressed in its motion to compel. (Korhonen Email 4/17/12.)2 Apple took the position that the
question of whether Apple needed to provide a witness on text message notifications would be
determined by the Court’s ruling on Motorola’s motion to compel testimony regarding email
notifications. Motorola agreed to that arrangement. (See Id.) The Court granted Motorola’s
motion, and Apple has not disputed that it must provide testimony on both text message and
email notifications.
Motorola’s Efforts to Schedule the 30(b)(6) Depositions Required By the Court’s Order.
On March 30, 2012, this Court ordered that Apple provide further deposition testimony within 10
days. (D.E. 289.) Nonetheless, Apple so far has not provided a deposition on the topics of
either email notifications or text message notifications. Apple did offer to provide a deposition
of Phil Peterson on April 9 relating to the source code for the webmail functionality for
MobileMe.

(Haskett Email 4/3/12.)

On April 4, Counsel for Motorola asked Apple to

reschedule the deposition for a time during the weeks of April 16 or April 23 due to a scheduling
conflict for Motorola’s counsel. (Bonifield Email 4/16/12.) Apple has not provided any further
deposition dates relating to the 30(b)(6) topics, however.
On April 16, Motorola emailed Apple noting that Apple had still not made any witness
available for email notifications and had not provided an updated date for a deposition on source
code for webmail, and requesting that Apple provide those deposition dates. (Bonifield Email
4/16/12.) On April 17, Motorola also emailed Apple affirming that Apple needed to provide a
witness on text message notifications since the Court had granted Motorola’s motion to compel.
(Korhonen Email 4/17/12.) On April 18, having not heard from Apple in response to either the
April 16 or April 17 emails, Motorola emailed Apple again requesting that Apple provide

2

The emails referred herein are attached as Composite Exhibit A.

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CASE NO. 1:10-cv-23580-SCOLA/BANDSTRA
deposition dates prior to May 4, 2012, which is the current discovery cut off. (Bonifield Email
4/18/12.)
Apple’s Refusal to Schedule Deposition Testimony. Apple responded that it would not
provide any Court-ordered witness prior to May 4. (Haskett Email 4/18/12.)
Apple contended that it needed to schedule the depositions after May 4 because of “the
schedules of the engineers, combined with the level of activity in the Illinois case [currently
pending between Apple and Motorola].”

(Haskett Email 4/18/12.)

In response, Motorola

pointed out that Apple’s counsel should have time for the depositions—particularly given that
Apple was scheduling multiple depositions that it wanted to take—and that it had ample time to
schedule the depositions around any conflicts in its engineers’ schedules. (Bonifield Email
4/19/12.)

Motorola made clear that if Apple did not provide the witnesses immediately,

Motorola would seek relief from the Court. (Id.)
Apple responded that it would only attempt to schedule its witnesses if Motorola agreed
to waive its right to seek depositions on those topics in the second litigation (Motorola Solutions,
Inc. v. Apple, Inc., 1:12-cv-20271-RNS) (“Florida II”) between the parties before this Court:
Regardless, we will not provide witnesses for deposition twice on
the same subjects. Therefore, if you insist on proceeding now with
these depositions, we will not provide witnesses on these topics
again, either in Florida I or Florida II. Please confirm that you
nonetheless wish to proceed with the depositions now, and I will
check into whether the engineers are available.
(Haskett Email 4/20/12 (emphasis added).) Neither Motorola nor Apple have begun to take
discovery in this second case, and indeed, four additional parties sued by Apple have not even
appeared in the case as of yet.

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CASE NO. 1:10-cv-23580-SCOLA/BANDSTRA

III.

ARGUMENT
A.

Apple Must Provide The 30(b)(6) Testimony Motorola Seeks Without
Conditions

The Court’s Order entered March 30, 2012 directed Apple to provide Rule 30(b)(6)
testimony on email notifications for iOS 5 and the source code for webmail for Apple’s accused
MobileMe product. (D.E. 289.) Apple must follow that order. Moreover, Apple must provide
testimony on text message notifications, which it agreed to provide if the Court compelled
testimony on email notifications.
Moreover, Apple must provide the 30(b)(6) testimony without conditions. Apple refuses
to even check the availability of its witnesses unless Motorola agrees that it will not be able to
seek additional testimony on the same subjects in the second litigation between the parties that is
also pending before this Court. (Haskett Email 4/20/12 (“Therefore, if you insist on proceeding
now with these depositions, we will not provide witnesses on these topics again, either in Florida
I or Florida II. Please confirm that you nonetheless wish to proceed with the depositions now,
and I will check into whether the engineers are available.”).) Apple has no basis for withholding
the depositions in order to force concessions out of Motorola. The Court ordered Apple to
provide the testimony to Motorola and the Court did not attach any conditions to that Order.
Apple must comply with the Court’s instruction, and since it refuses to do so, the Court should
enforce its Order and require Apple to provide the depositions without conditions in a timely
manner.
B.

Apple’s Excuses For Not Providing Testimony Earlier Are Baseless

Apple has no reason for not providing the depositions in a timely manner. Apple’s claim
that it cannot because of “the schedules of the engineers” has no merit. (Haskett Email 4/18/12.)

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CASE NO. 1:10-cv-23580-SCOLA/BANDSTRA
Apple will have had more than a month since March 30 to schedule depositions on just three
topics. Motorola is not seeking depositions of specific individuals; Apple may designate whom
it chooses, so long as they are adequately prepared to testify. Certainly, Motorola has given
Apple far more time than the ten days ordered by the Court. Motorola should not be punished
for acting in good faith in not holding Apple to that 10-day deadline.

Moreover, Apple

apparently had not even checked with its engineers at the time it claimed that their schedules
precluded depositions before May 4. After Motorola insisted on depositions before that date,
Apple changed it argument. After claiming on April 18 that it was not possible to schedule
depositions before May 4, Apple stated on April 20 that, if Motorola would agree to conditions
imposed by Apple, Apple would “check into whether the engineers are available.” (Haskett
Email 4/20/12.) Apple evidently still has not checked the availability of its engineers to testify.
Apple’s excuse that it does not have time to provide the depositions prior to May 4
because of “the level of activity in the Illinois case” is also not true. Apple suggests that, as a
result of the Illinois litigation, Apple’s counsel is too busy to handle depositions in the Florida
litigation.

That is not the case.

Apple continues to aggressively pursue scheduling of

depositions in this action that Apple wants to take of third-party witnesses. Just in the last week,
Apple has scheduled depositions of at least 3 Motorola witnesses for April 26, May 2, and May
4, as well as a third-party deposition Apple intends to take on April 25, and the parties are
finalizing deposition dates for multiple other witnesses Apple is seeking.

(See

Hadzimehmedovic Email 4/20/12; Arjun Email 4/19/12; Arjun Email 4/17/12.) Apple’s claim
that events in the Illinois case prevent it from scheduling depositions in the Florida case is
therefore demonstrably false.

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CASE NO. 1:10-cv-23580-SCOLA/BANDSTRA
In sum, Apple’s arguments that it should not have to provide the 30(b)(6) testimony
Motorola seeks before May 4 as Motorola requested are all false. But even if Apple did have
scheduling conflicts, it has been given more than enough time to schedule the depositions that it
was ordered to schedule by the Court. Indeed, the Court’s initial 10 day deadline reflects the fact
that 10 days should be enough time for Apple to schedule the depositions. Motorola ended up
giving Apple far more time—more than a month from the March 30 order to May 4. But Apple
never suggested to Motorola at that time that it would not schedule the depositions before May 4,
and Motorola never would have agreed to such a proposal. Apple should now be required to
schedule the depositions in a timely manner.
Moreover, Apple should be required to schedule the depositions without any condition
that Motorola would be waiving its right to take additional depositions on the same topics. The
Court’s March 30 Order did not impose any such restriction on Motorola. Motorola should not
have to bargain away its rights to discovery—particularly for the Florida II case, where
discovery has not even begun—in order to schedule depositions that Apple is required to provide
under the Court’s Order.
IV.

CONCLUSION
For the foregoing reasons, Motorola respectfully requests that this Motion to Enforce the

Court’s Order Entered March 30, 2012 be granted in its entirety.

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CASE NO. 1:10-cv-23580-SCOLA/BANDSTRA
CERTIFICATE OF GOOD FAITH CONFERENCE
Pursuant to Local Rule 7.1(a)(3), I hereby certify that counsel for Motorola has conferred
with counsel for Apple in a good faith effort to resolve the issues raised in the motion and has
been unable to do so.
/s/ Edwrd M. Mullins
Edward M. Mullins (Fla. Bar No. 863920)

Dated: April 24, 2012

Respectfully submitted,

By:
/s/ Edward M. Mullins
Edward M. Mullins (FBN 863920)
[e-mail]
Annette C. Escobar (FBN 369380)
[e-mail]
ASTIGARRAGA DAVIS MULLINS
& GROSSMAN, P.A.
701 Brickell Avenue, 16th Floor
Miami, Florida 33131
Telephone: [phone]
Facsimile: [phone]

Charles K. Verhoeven*
David Perlson*
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
50 California Street, 22nd Floor
San Francisco, California 94111
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]
Edward J. DeFranco*
Raymond Nimrod*
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
51 Madison Avenue, 22nd Floor
New York, New York 10010
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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CASE NO. 1:10-cv-23580-SCOLA/BANDSTRA

David A. Nelson*
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
500 West Madison St., Ste. 2450
Chicago, IL 60661
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Marshall Searcy*
Matthew O. Korhonen*
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
865 S. Figueroa St., 10th Floor
Los Angeles, California 90017
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
*Admitted pro hac vice
Attorneys for Plaintiff and CounterclaimDefendants Motorola Solutions, Inc. and
Motorola Mobility, Inc.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on April 24, 2012, I electronically filed the foregoing
document with the Clerk of the Court using the CM/ECF filing system. I also certify that the
foregoing document is being served this date on all counsel of record or pro se parties on the
attached Service List in the manner specified, either via transmission of Notices of Electronic
Filing generated by the CM/ECF system or; in some other authorized manner for those counsel
or parties who are not authorized to receive electronically Notices of Electronic Filing.

/s/ Edward M. Mullins___________________
Edward M. Mullins (Fla. Bar No. 863920)

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CASE NO. 1:10-cv-23580-SCOLA/BANDSTRA
SERVICE LIST
Motorola Mobility, Inc. v. Apple, Inc.
Case No.: 1:10-cv-23580-SCOLA/BANDSTRA
United States District Court, Southern District of Florida
Christopher R.J. Pace
[e-mail]
Edward Soto
[e-mail]
Weil, Gotshal & Manges LLP
1395 Brickell Avenue, Suite 1200
Miami, Florida 33131
Telephone: [phone]
Facsimile: [phone]
Jill J. Schmidt*
[e-mail]
Anne M. Cappella*
[e-mail]
Brian C. Chang*
[e-mail]
Arjun Mehra*
[e-mail]
Jeremy Jason Lang*
[e-mail]
Weil, Gotshal & Manges, LLP
201 Redwood Shores Parkway
Redwood Shores, California 94065-1134
Telephone: [phone]
Facsimile: [phone]

Mark G. Davis*
[e-mail]
Weil, Gotshal & Manges LLP
1300 Eye Street, NW, Suite 900
Washington, DC 20005
Telephone: [phone]
Facsimile: [phone]

Samuel F. Ernst*
[e-mail]
Christine Saunders Haskett*
[e-mail]
Robert D. Fram*
[e-mail]
Chris Martiniak*
[e-mail]
Winslow B. Taub*
[e-mail]
R. Anthony Lopez*
[e-mail]
Covington & Burling LLP
One Front Street
San Francisco, California 94111-5356
Telephone: [phone]
Facsimile: [phone]
Robert T. Haslam*
[e-mail]
Anupam Sharma*
[e-mail]
Covington & Burling LLP
333 Twin Dolphin Drive, Suite 700
Redwood Shores, California 94065
Telephone: [phone]
Facsimile: [phone]
Elena M. DiMuzio*
[e-mail]
Covington & Burling LLP
One Front Street
San Francisco, California 94111
Tel.: [phone] / Fax: [phone]
Christopher K. Eppich*
[e-mail]
Covington & Burling LLP
9191 Towne Centre Drive, 6th Floor
San Diego, California 92122
Tel.: [phone] / Fax: [phone]

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CASE NO. 1:10-cv-23580-SCOLA/BANDSTRA
Matthew D. Powers*
[e-mail]
Steven S. Cherensky*
[e-mail]
Azra Hadzimehmedovic
[e-mail]
Tensegrity Law Group LLP
201 Redwood Shores Parkway, Suite 401
Redwood Shores, California
Telephone: [phone]
Facsimile: [phone]

*Admitted pro hac vice
Electronically served via CM/ECF

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