Saturday, July 6, 2013

Apple says Samsung "simply seeks to delay and derail the damages retrial" scheduled for November

On Tuesday I reported on Samsung's claim that Apple seeks "vastly greater damages" in the retrial scheduled for November 2013 and the related motion for relief from the case management order concerning the retrial. For the procedural background of this, let me refer you to the post I just linked to. In a nutshell, Samsung argued that a new damages report from a new damages expert (because Apple's damages expert from last year's trial, Terry Musika, had passed away in the meantime) violates previous court orders that Apple's new expert had to base her report on all of the theories and methodologies approved last time, and on the same data, except that certain notice periods would be adjusted.

Judge Lucy Koh wanted to minimize the potential for dispute at this stage. She even wanted to eliminate it that way, but she knew that there's always room for disagreement in this bitterly-contested litigation. At the case management conference in April, the judge and Apple agreed that there "shouldn't be anything" to discuss in terms of motions to strike from each other's damages reports, but Judge Koh figured that something might come up anyway. Here's an excerpt from the hearing transcript (Mr. Jacobs is Morrison & Foerster's Michael Jacobs, counsel for Apple):

The Court: Now, motion to strike from each other's expert reports, I would -- can we limited that to ten pages?

Mr. Jacobs: Is it clear, Your Honor, that we're not --

The Court: There really shouldn't be anything.

Mr. Jacobs: There shouldn't be anything.

The Court: If everyone follows my ruling of no new theories, no new methodologies, no new data, no new damages period, there really shouldn't be. But I'm not totally optimsitic based on my experience with this case over the last two years.

Samsung also agreed to this. It just wanted to preserve its record for an appeal by formally stating that it maintains all of last year's objections to the previous report with respect to the new one.

Judge Koh later clarified again that she wanted to avoid duplicity:

The Court: [...] I don't want to relitigate -- anything that's already been decided and has already survived a Daubert motion or a motion in limine will continue to be admissible and part of the case.

The above framework provides both parties with limited opportunity for challenging each other's reports. But as Samsung's motion made clear, Samsung doesn't like the numbers ("vastly greater") at which Apple's new damages expert arrived. The only way to challenge the numbers (provided that the underlying numbers are correct and that there are no mathematical errors) is to dispute the methdology. And under the case schedule set in April, its objections to Apple's report would be discussed at an October 10, 2013 hearing -- one month and two days before the trial date. So Samsung wanted to start a fight over Apple's expert report now, and the procedural vehicle it chose is a "motion for administrative relief".

Apple primarily addresses Samsung's motion on substance, denying the allegations of any failure to comply with previous orders. But it also points to the fact that the existing case management order allows Samsung to raise any such issues, and it notes that in the Northern District of California, the applicable "Local Rule 7-11 exists to resolve non-substantive administrative issues not addressed in the Federal Rules, such as changes to 'page limitations' or filing 'documents under seal.'" By contrast, this here is substantively a Daubert motion and procedurally a motion to vacate all deadlines. But Samsung's alleged "misuse" of this motion category required Apple to respond over the Independence Day weekend.

Elsewhere in its brief, Apple says this:

"Samsung's real purpose is clear: it simply seeks to delay and derail the damages retrial."

The further process is now in Judge Koh's hands (the applicable rule provides for no reply by Samsung). Apple's opposition brief explains why the new damages report is in full compliance with court orders, and supporting declarations were signed by the new damages expert and the firm that provided her (and the previous damages expert) with input (Davis declaration, Robinson declaration).

I just linked to those documents if you're interested in further detail. I guess Judge Koh will simply deny Samsung's motion and carry on with the case, but if she's concerned about Samsung possibly having a factual basis for claiming Apple violated a court order, then there'll probably be further briefing and/or a hearing.

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