Wednesday, May 23, 2012

Samsung asks court to impose sanctions on Apple for allegedly withholding evidence

No information has been made available yet about the CEO-level settlement talks that took place between Apple and Samsung these past two days, but at some point Magistrate Judge Spero will file a minute entry that will indicate whether or not further talks have been scheduled. In my view, it's a waste of time.

Meanwhile we have the next discovery dispute between Apple and Samsung. This time around, Samsung goes on the offense and wants the United States District Court for the Northern District of California to penalize Apple. Previously, a couple of lenient but also some more drastic sanctions were imposed on Samsung. Samsung is trying to mitigate the impact of the more drastic ones.

The new dispute manifests itself in three motions: Samsung moves for clarification and, separately, for sanctions, while Apple moves for clarification. All of this relates to an April 12, 2012 order that granted in part a Samsung motion to compel Apple to produce (i.e., deliver) certain material, including documents from "related proceedings" (other lawsuits that have some factual overlaps with this case).

According to Samsung, "Apple withheld 283 depositions and more than 34,000 pages of testimony from Samsung for months after [a] December 22 [o]rder". It appears that Apple produced this material a few months later, so those 34,000 pages aren't at issue now. It's worth noting that the sheer numbers don't mean too much: 34,000 pages can be pretty meaningless in a litigation in which many millions of pages (sometimes millions of documents) are at issue. A single page that contains incriminating evidence is worth more than any number of meaningless pages. Still, Apple's related conduct was deemed non-compliant and prejudicial. On April 12, Magistrate Judge Grewal wrote:

"In order to mitigate the prejudice to Samsung caused by Apple's failure to produce all responsive deposition transcripts in a timely manner, Samsung may take up to five additional depositions, for a total time not to exceed ten hours."

This indicates that some (though apparently not much) prejudice occurred. But that's just background. The new dispute is over what occurred since the April 12, 2012 order.

The most concise outline of the nature of the current disagreement is what Apple asks the court to "clarify":

  1. Part B.2 of the April 12, 2012 Order, compelling production of 'unredacted court documents,' does not require Apple to produce documents in violation of ITC protective orders or Local Rules. To the extent ITC protective orders or Local Rules do not have an exception that allows for production pursuant to a court order, Apple is relieved of any requirement to produce confidential documents from court files in the applicable cases.

  2. Part B.1 of the Order, compelling additional depositions, permitted Samsung to take only those depositions that were reasonably necessary to mitigate prejudice caused by Apple's late production of transcripts pursuant to the Order, and that were timely noticed.

With respect to the first item, the fact of the matter is that on April 27, Apple filed a motion in multiple ITC investigations in order to comply with the California order. As far as I can see, Apple made a serious, good-faith effort to comply. But there's a conflict here between the ITC's (and other district courts') desire to protect confidential information and the kind of access that Samsung demands. On May 7, the Office of Unfair Import Investigations (the "ITC staff") replied and basically said that Apple can't breach ITC rules in order to comply with an order from a district court.

It would be too harsh to say that Samsung's motion for sanctions is a "me too" motion just because Apple won sanctions against Samsung on more than one occasion. It's quite possible that Apple was less than fully cooperative. I've said before that Samsung plays more of those tactical games but Apple certainly doesn't want to be more forthcoming than necessary. That said, at least the part about documents from other litigations leads me to suspect that what Samsung primarily wants is a delay. Samsung may hope that it will take a while to sort out between the court in California and the ITC as well as other district courts which documents Apple ultimately has to make available to Samsung. The California court can solve the whole problem by providing the clarification Apple requests. In that case, there won't be a delay, and probably no sanctions.

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