Apple is facing a huge challenge in dealing with truckloads of Korean-language documents produced by Samsung in two federal lawsuits in California and two ITC investigations. There's a substantial risk for Apple that it may miss out on important and potentially incriminating evidence comparable to the "Lindholm email" only because the fewest of its lawyers can read and search Korean documents. A patent case should mostly depend on technical facts, but the reality is that those technical facts are put before layperson juries, whose assessment of technical issues can be indirectly influenced by documents and testimony. And many of Samsung's patent assertions against Apple relate to standard-essential patents, a field in which documents and testimony can be particularly relevant.
Yesterday, two things happened that increase Apple's chances of dealing with the language barrier. Through two of the law firms it's already working with, Apple now has access to 73 additional, apparently Korean-American, lawyers as well as 20 document reviewers of the same ethnicity. And in one of the federal lawsuits, Apple was given a chance to take second depositions of up to ten Samsung witnesses since it previously didn't have a fair chance to sift through late-produced documents in time for the original depositions.
In the following sections, I'll discuss both developments.
Apple's Korean-American army of lawyers and reviewers
I previously saw at least one Korean name on a list of external lawyers working for Apple on the Samsung cases. But even the large law firms that represent Apple in this dispute only have a very limited number of Korean-American professionals on board. At the same time, Apple v. Samsung is a high-stakes battle and Apple's budget is presumably large enough to bring in many Korean-speaking professionals at rates that should be attractive to them.
A practical solution to bring in additional Korean-speaking firepower has been found. Yesterday, Morrison & Foerster (which works on Apple's patent assertions against Samsung) and Wilmer Hale (which defends Apple against Samsung's assertions) submitted to the ITC the documents with which an entire army of Korean-Americans agreed to be bound to the terms of a protective order. ITC rules to protect confidential treatment are very strict, and law firms cannot share documents with anyone who has not agreed to respect the relevant protective order.
WilmerHale submitted such declarations from 72 Korean-American contract attorneys. All of them, plus a 73rd lawyer who was not contracted by Wilmer Hale, also have a contract with MoFo. In addition to those contract attorneys, the firms have both contracted (the same) 20 Korean-American document reviewers for the purpose of this litigation. There are two more document reviewers (who have contracts with both firms) whose names do not suggest that they are Korean-American. They might nevertheless speak Korean, or they will just review English-language documents.
It would be interesting to know what kinds of cases those Korean-American contract attorneys usually work on. Presumably they were selected based on some experience with commercial and/or technical cases. But maybe even a Korean-American attorney who usually handles road accidents can be trained to read documents and look out for certain kinds of relevant information.
Chances are that those contract attorneys will significantly more money while Apple is indirectly paying for their services than usually. And while this is meant to be only a temporary involvement with MoFo and Wilmer Hale for them, if there's some great legal talent among them, it may just end up being discovered by one of those top-notch firms.
The temporary recruitment of 93 people to analyze Samsung documents for Apple demonstrates the resolve with which the number one company in the industry is fighting against the number two. The message to Samsung is that the Korean language barrier is surmountable -- with a bunch of cash.
Apple gets to take second depositions of up to ten Samsung witnesses
Yesterday, Magistrate Judge Paul S. Grewal ruled on an Apple motion to compel the timely production of documents by Samsung in advance of related witness depositions. This motion was brought in the first of two lawsuits instigated by Apple against Samsung in the Northern District of California. Apple alleged that Samsung had on certain occasions presented hundreds or even thousands of documents, most of them in Korean, only a day (or even just hours) ahead of depositions, making it hard or in some cases even logistically impossible for Apple's lawyers to analyze those documents in preparation of testimony. Under U.S. law, testimony bears so much weight that a litigant seeking to get mileage out of a key piece of evidence always tries to authenticate it (by asking a witness whether the document is real) and asks a witness further questions about it.
Apple would ideally have liked the court to tell Samsung to produce documents at least ten days in advance for documents written in whole or in part in a foreign language, and at least five days in advance for English-language material, contrasting with the "three-day rule" the court applied as a result of Apple's own successful request for an expedited trial. But when Apple brought the motion, it realized that it might not be decided before the close of fact discovery in this litigation, and alternatively asked for an opportunity to take additional (second) depositions of Samsung witnesses who should testify on documents that were produced after Apple's preferred deadlines.
Magistrate Judge Grewal found "Apple’s demonstration of a pattern of last-minute document production by Samsung to be troubling in its consistency" and granted Apple a part of what it requested as an alternative solution. Apple is allowed to identify up to ten Samsung witnesses, "out of those listed in the briefing on [the] motion", whom it seeks to depose a second time because it was logistically impossible to process and translate documents in time for the first depositions. Those second depositions all have to take place before the end of this month, be it in South Korea or in Northern California.
In addition, "the court strongly encourages Apple to extend the same opportunity to Samsung in those instances in which Apple has produced a substantial volume of documents shortly before, or after, a deposition". Samsung has not brought a formal motion to compel with respect to that issue, but at a hearing it asked for both parties to be required to respect the same rules. Apple did not rule out making witnesses available for a second time, and the footnote I just quoted from indicates that Samsung would be likely to succeed with such a motion if the parties failed to reach an agreement.
In my observation, Apple has also tried to be no more forthcoming with documents than it's legally required to, but I believe it's fair to say that Samsung has made more attempts to play tactical games and, in some cases, to stall. It appears that Samsung has been particularly uncooperative when Apple touched on sensitive issues, such as potential evidence of Samsung having deliberately imitated Apple's products and evidence of Samsung having engaged in "patent ambush" by not disclosing essential patents to standards body in time. Clearly, Samsung is on the defensive against Apple and that's why it's normal that it has less of an interest in the progress of those lawsuits.
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