Apple Inc. v. Samsung Electronics Co. Ltd. et al
Filing
1774
ORDER Regarding Objections; ORDER Regarding Samsung's Motion to Exclude. Signed by Judge Lucy H. Koh on 8/15/2012. (lhklc2, COURT STAFF) (Filed on 8/15/2012)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
United States District Court
For the Northern District of California
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APPLE, INC., a California corporation,
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Plaintiff,
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v.
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SAMSUNG ELECTRONICS CO., LTD., A
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Korean corporation; SAMSUNG
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ELECTRONICS AMERICA, INC., a New York )
corporation; SAMSUNG
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TELECOMMUNICATIONS AMERICA, LLC, )
a Delaware limited liability company,
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Defendants.
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Case No.: 11-CV-01846-LHK
ORDER RE: OBJECTIONS TO GREG
JOSWIAK,TIM SHEPPARD, MICHAEL
WAGNER, TONY BLEVINS, PAUL
DOURISH, TONY GIVARGIS, DAN
DZUBAN, EMILIE KIM, RICHARD
LUTTON, AND MANI SRIVASTAVA;
ORDER RE: SAMSUNG’S MOTION TO
EXCLUDE EMILIE KIM, GREG
CHAPMAN, AND SONY CUSTODIAN
OF RECORDS
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After reviewing the parties’ briefing, considering the record in the case, and balancing the
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considerations set forth in Federal Rule of Evidence 403, the Court rules on the parties’ objections
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as follows:
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A. Greg Joswiak
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1. Samsung’s Objections
COURT’S RULING ON OBJECTION
WITNESS
AND
EXHIBIT NO.
Joswiak: Depo Sustained. Apple’s counter-designation was intended to rebut Samsung’s
273:20-274:21 designation of Joswiak Depo 238:1-9. The Court has sustained Apple’s
objection to Joswiak Depo 238:1-9. Accordingly, Apple’s counter-designation is
moot.
2. Apple’s Objections
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ORDER ON OBJECTIONS TO EXHIBITS; ORDER ON SAMSUNG’S MOTION TO EXCLUDE WITNESSES
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WITNESS
COURT’S RULING ON OBJECTION
AND
EXHIBIT NO.
Joswiak: Depo Sustained. Joswiak testified in deposition that he was not aware of any consumer
238:1-9
who had bought a Samsung phone mistaking it for an Apple phone. Absence of
consumer confusion is not relevant to trade dress dilution, which merely requires
consumer association.
Samsung argues that Joswiak’s testimony that consumers do not confuse Apple
and Samsung phones is relevant to design patent infringement. Consumer
confusion is not required to establish design patent infringement. Instead, design
patent infringement is established by considering whether the accused device
creates the same overall visual impression as the patent in suit. Lack of
consumer confusion is not strongly probative of the issue of whether the accused
devices do not infringe. In contrast, this testimony is outweighed by the risk that
the jury would draw an improper inference.
United States District Court
For the Northern District of California
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B. Tim Sheppard
1. Samsung’s Objections
COURT’S RULING ON OBJECTION
WITNESS
AND
EXHIBIT NO.
Sheppard:
Sustained-in-part and overruled-in-part. The Court has held that the flaws in
PDX62.2
Samsung’s financial disclosures are relevant evidence that the jury may consider.
The Court has limited discussion of Judge Grewal’s sanctions order to avoid
prejudice to Samsung. However, PDX62.2 makes no reference to Judge
Grewal’s Sanctions Order or any other Court findings. Accordingly, the
probative value of PDX62.2 for impeachment outweighs the risk of prejudice.
Samsung also argues that it is improper to characterize its February 10 and
March 29 disclosures as “incomplete” when the disclosures were simply missing
phones that Samsung asserts were not yet at issue in the case. However, Judge
Grewal’s sanctions order, ECF No. 880, stated, “The merits of Samsung’s basis
for excluding sales and revenue data for the Galaxy S II Skyrocket, Galaxy S II
Epic 4G edition, and Galaxy Tab 10.1 LTE is not the subject of the motion
before the court. The court merely notes that having not sought court intervention
to establish those models as being outside the scope of Apple’s claims and
contentions or to otherwise limit Samsung’s obligation respecting damages
production, Samsung was obligated to produce responsive discovery under the
liberal standard set by Fed. R. Civ. P. 26(b).” ECF No. 880 at 12, n. 42.
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Although the Court overrules Samsung’s objection as to the content of PDX62.2,
the Court finds that the large red stamps are unnecessarily prejudicial. Apple
must use a more restrained graphic to convey the flaws in Samsung’s financial
disclosures.
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The Court agrees with Samsung that the title of PDX62.2, “Samsung’s Financial
Disclosures” implies that all of Samsung’s financial disclosures are addressed on
the slide. Accordingly, the Court sustains Samsung’s objection to the title of
PDX62.2.
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United States District Court
For the Northern District of California
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2. Apple’s Objections
COURT’S RULING ON OBJECTION
WITNESS
AND
EXHIBIT NO.
Sheppard:
Sustained. Apple objects that DX616 consists of irrelevant sale and shipping
DX616
documents for a 2006 phone not at issue in this case. These documents are not
evidence of how any of the accused devices are imported, transported, or sold.
Thus, under FRE 403, DX 616 would waste time and confuse the jury.
Sheppard:
Sustained. Apple objects that Sheppard cannot testify as to SEC expenses in
SDX3960.003 SDX3960.003 because Sheppard testified at his January 24, 2012, and Febuary
29, 2012 depositions that he has personal knowledge of only SEA and STA, and
no personal knowledge of financial documents prepared at SEC.
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Apple deposed Sheppard as to SEC on December 21, 2011, pursuant to
Sheppard’s 30(b)(6) designation. However, Sheppard’s designation was later
modified to cover only SEA and STA. Sheppard clearly disclaimed personal
knowledge of certain SEC financial and accounting details. See Hung Decl., Ex.
6 at 51:11-24 (“I don’t have visibility to – to the factories or supplies involved”);
Hung Decl., Ex. 6 at 39:23-40:10 (“I have no personal knowledge of what [types
of financial documents are] prepared at SEC [in the ordinary course of
business].”); Hung Decl. Ex. 7 at 134:7-18 (“Q: If you look at Exhibit 1922 and
1923, at line 20, there’s an item that says others and a number of more going
down to line 34. Do you see that? A: Yeah, one of them stops at 33, and one of
them goes to 34, yeah. Q: Is it correct you are not here to speak on behalf of any
Samsung entity with respect to the information that is found in those lines as to
these spreadsheets? A: That is correct.”). Thus, Sheppard has not established
that he has personal knowledge regarding the information in SDX3960.003.
C. Michael Wagner
1. Samsung’s Objections
COURT’S RULING ON OBJECTION
WITNESS
AND
EXHIBIT NO.
PX2317.42-43 Overruled. Mr. Wagner’s statements from a treatise on patent damages are
potentially relevant impeachment evidence. Apple does not seek to have Mr.
Wagner’s damages treatise PX2317 admitted to the jury. Instead, Apple seeks to
impeach Mr. Wagner with his prior inconsistent statements contained in PX2317.
Mr. Wagner’s general statements made in a treatise present substantially lower
risk of creating a time-wasting sideshow than evidence from a past trial that
involved specific parties, facts, and law distinct from those at issue in this case.
PDX61.13-14
Sustained-in-part and overruled-in-part. PDX61.13 is highly similar to PDX62.2.
The Court overrules Samsung’s objection to the content of PDX61.13 for the
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ORDER ON OBJECTIONS TO EXHIBITS; ORDER ON SAMSUNG’S MOTION TO EXCLUDE WITNESSES
same reasons as PDX62.2. Furthermore, the validity of the underlying financial
data used in Mr. Wagner’s damages calculations is relevant to his expert
testimony. However, the Court sustains Samsung’s objection as to the
prejudicial use of large red stamps. Apple must use a more restrained graphic.
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PDX61.14 presents accurate and relevant quotations from deposition testimony
of Mr. Sim. Samsung does not object to the use of the testimony but objects to
the slide title and the use of red font to emphasize admissions of “error.” Apple
has modified the title such that it now accurately represents the content of Mr.
Sim’s quoted testimony without the use of objectionable scare quotes. Apple is
entitled to change its demonstrative’s font color to emphasize portions of Mr.
Sim’s testimony that it considers most relevant. Accordingly, the Court
overrules Samsung’s objection to PDX61.14.
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For the Northern District of California
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EXHIBIT
NUMBER
DX702
2. Apple’s Objections
COURT’S RULING ON OBJECTION
Reserved. Apple objects that the basis for Mr. Wagner’s hypothetical damage
calculations have been excluded by Judge Grewal’s order, see ECF No. 1106,
and therefore Mr. Wagner’s testimony lacks foundation. Apple’s objection,
however, ignores that Mr. Wagner’s testimony concerns the cost of hypothetical
design-arounds, which are not excluded by Judge Grewal’s order, as opposed to
actual design-arounds, which are excluded. See ECF No. 1163 at 35:20-36:13.
However, it is unclear where Wagner obtained his hypothetical cost information.
If these hypothetical costs were created by Wagner, then he may testify. If
Wagner obtained the cost information from Samsung, then he may not testify
regarding this topic. Samsung shall file a proffer regarding the basis of Wagner’s
hypothetical cost figures by 7:30 a.m. on Thursday, August 16, 2012.
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D. Tony Blevins
1. Samsung’s Objections
COURT’S RULING ON OBJECTION
WITNESS
AND
EXHIBIT NO.
Blevins:
Overruled. PDX59 and PDX60 are a disassembled iPhone4 and the iPhone4
PDX59 and
logic board. An iPhone4, including its internal parts, has already been admitted
PDX60
into evidence. PDX59 and PDX60 are simply demonstratives to more easily
display the internal logic board without disassembling the device entered into
evidence. PDX59 and PDX60 were timely disclosed according to the schedule
for disclosing demonstrative exhibits. Accordingly, the Court overrules
Samsung’s objection that PDX59 and PDX60 were untimely disclosed.
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E. Paul Dourish
1. Samsung’s Objections
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WITNESS
COURT’S RULING ON OBJECTION
AND
EXHIBIT NO.
PX112,
Overruled. Samsung objects that Dr. Dourish’s expert report is insufficiently
PDX42.7-.25
particular with regard to his opinion that the ‘893 patent is invalid in light of KR
‘792 patent. Upon review, however, the Court finds that both Dr. Dourish’s
expert report and claim chart for the ‘893 patent cite specific portions of the KR
‘792 patent. See, e.g., Dourish Expert Report ¶ 115 (“The KR ‘792 patent
discloses setting the digital image processing apparatus in the reproduction mode.
See, e.g., KR ‘792 patent, pp. 5-2 to 5-4 and Drawings 1-3.”). Although
Samsung cites Apple’s invalidity contention for claim 10 of the ‘893 patent,
which “consists of over 10 pages of block quotes, including over four pages of
quotes from KR ‘792 alone,” as a particularly egregious example of insufficient
specifics, the invalidity contentions provide specific excerpts from the relevant
patents, element-by-element, for each of claim 10’s eight elements. Thus, Dr.
Dourish has provided Samsung with sufficient notice of his opinions regarding
the invalidity of the ‘893 patent based on KR ‘792.
PX124
Sustained-in-part and overruled-in-part. Apple argues that PX124, the iBook
System, is relevant as prior art to claim 10 of the ‘893 patent. However,
Samsung objects that Dr. Dourish has not identified any evidence that this system
was ever “known or used by others” in the manner that Dr. Dourish asserts
anticipates claim 10 prior to the original filing date of the ’893 patent. See 25
U.S.C. 102(a). Apple has not addressed this issue. Because the relevance of
PX124 depends on evidence of actual use of this system on a date prior to the
filing date, and Apple has not proffered admissible evidence that this exhibit
meets that requirement, Samsung’s objection is sustained. However, if Apple is
able to present relevant, admissible evidence such that a reasonable jury could
find that the iBook is prior art, then the iBook would be admissible.
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2. Apple’s Objections
COURT’S RULING ON OBJECTION
WITNESS
AND
EXHIBIT NO.
DX2635
Sustained. Samsung has agreed to use PX112 in place of DX2635.
F. Tony Givargis
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1. Samsung’s Objections
EXHIBIT
NUMBER
PX113
COURT’S RULING ON OBJECTION
Sustained-in-part and overruled-in-part. Samsung objects to PX113, documents
reflecting sales of certain Sony products and the affidavit of Lee Hill
authenticating them. The Court agrees that the affidavit of Lee Hill is hearsay,
and Apple identifies no relevant hearsay exceptions. Therefore, Lee Hill’s
affidavit is inadmissible under Rule 802. However, Lee Hill’s affidavit, though
inadmissible, does serve to authenticate the attached documents as records
regularly kept in the ordinary course of business. Thus, the attached documents
qualify for the business records exception, see Fed. R. Evid. 803(6), and are self5
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ORDER ON OBJECTIONS TO EXHIBITS; ORDER ON SAMSUNG’S MOTION TO EXCLUDE WITNESSES
authenticating under Rule 902(11). Thus, Lee Hill’s affidavit is not admissible,
but the attached business records are.
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Moreover, Mr. Dzuban, as a custodian of records for Sony, can authenticate the
business records and lay the foundation to establish that the records are regularly
kept in the ordinary course of business.
Sustained. PX114, a printout of a website that Apple argues is probative to the
common understanding of the term “midlet” in the art. Accordingly, PX114 is
only relevant if it uses “midlet” in the same way that a person of ordinary skill in
the art would have at the time of filing of the ‘711 patent. Apple has provided
no evidence that the word “midlet” is used in PX114 consistent with how a
person or ordinary skill in the art would have used it at the time of filing of the
‘711 patent. Therefore, Apple has not established the relevancy of this
document.
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2. Apple’s Objections
COURT’S RULING ON OBJECTION
EXHIBIT
NUMBER
SDX3922.003/
SDX3922.004/
DX2634
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SDX3922.015
Overruled. Apple objects, under Rule 403, to Samsung’s exhibits which point
out that Dr. Givargis’s initial expert report applied a definition of “applet” that
was different than the definition that the Court later adopted in claim
construction. In his rebuttal report, after the claim construction, Dr. Givargis
confirmed that his opinions were unchanged, even adopting the Court’s
construction of “applet,” Samsung is entitled to question Dr. Givargis about the
basis of his opinions, including the definition of the word “applet” that he
applied. The probative value of such testimony is not substantially outweighed
by the risk of unfair prejudice. See Fed. R. Evid. 403. If Apple believes
Samsung is misrepresenting Dr. Givargis’s opinions, it is free to re-direct him on
this point.
Sustained. Samsung has agreed not to use this exhibit with Dr. Givargis.
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G. Dan Dzuban (Sony Record Keeper)
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1. Samsung’s Objections
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EXHIBIT
NUMBER
PX113
COURT’S RULING ON OBJECTION
Sustained-in-part and overruled-in-part. Samsung objects to PX113, documents
reflecting sales of certain Sony products and the affidavit of Lee Hill
authenticating them. The Court agrees that the affidavit of Lee Hill is hearsay,
and Apple identifies no relevant hearsay exceptions. Therefore, Lee Hill’s
affidavit is inadmissible under Rule 802. However, Lee Hill’s affidavit, though
inadmissible, does serve to authenticate the attached documents as records
regularly kept in the ordinary course of business. Thus, the attached documents
qualify for the business records exception, see Fed. R. Evid. 803(6), and are selfauthenticating under Rule 902(11). Thus, Lee Hill’s affidavit is not admissible,
but the attached business records are.
Moreover, Mr. Dzuban, as a custodian of records for Sony, can authenticate the
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business records and lay the foundation to establish that the records are regularly
kept in the ordinary course of business.
Overruled. PX116 is a Sony Ericsson K700i user guide. Apple has indicated
that Mr. Dzuban will lay the proper foundation regarding the authenticity of this
document. Moreover, the Court finds that this document meets the requirements
for Rule 807, the residual hearsay exception. This document has circumstantial
guarantees of trustworthiness because the second page establishes that the
document is a manual published by Sony Ericsson. Presumably this document
will be used to establish the functionality of the device according to the
manufacturer. See FRE 807(a)(2)-(3) (statement must be offered as evidence of
a material fact and be more probative on the point for which it is offered than
any other evidence that the proponent can obtain through reasonable efforts”).
Finally, the Court finds that admission would best serve the purposes of these
rules and the interests of justice. Accordingly, this document is admissible
pursuant to FRE 807(a)(2)-(3).
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PX116
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Moreover, Mr. Dzuban, as a custodian of records for Sony, can also lay the
foundation to establish that the document is regularly kept in the ordinary course
of business and is admissible pursuant to FRE 803(6).
United States District Court
For the Northern District of California
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H. Emilie Kim
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1. Samsung’s Objections
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EXHIBIT
NUMBER
PX111
PX124
COURT’S RULING ON OBJECTION
This objection has been resolved.
This objection has been resolved.
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EXHIBIT
NUMBER
DX2635
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This objection has been resolved. Samsung has agreed to use PX112 in place of
DX2635.
I. Richard Lutton
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2. Apple’s Objections
COURT’S RULING ON OBJECTION
EXHIBIT
NUMBER
DX531
1. Apple’s Objections
COURT’S RULING ON OBJECTION
Sustained. Samsung seeks to use this exhibit, which is a settlement presentation
given in September 2010 by Samsung to Apple. Apple objects that this exhibit is
(1) hearsay and (2) barred by FRE 408 as a confidential settlement negotiation.
Samsung argues that the document is neither hearsay nor barred by FRE 408
because it is being offered to establish that Apple had notice of Samsung’s
patents, a permissible use under both FRE 408 and FRE 802. In response, Apple
argues that the fact that Apple had notice of the ’941 and ’516 patents is no
longer in dispute because Apple conceded that it had notice of these patents in its
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response to interrogatory number 13. See Kolovos Decl. Ex. 28. Thus,
according to Apple, the exhibit is not admissible because it does not make any
fact in dispute more likely.
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Deposition
Testimony
161:13-162:16
J. Mani Srivastava
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1. Samsung’s Objections
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EXHIBIT
NUMBER
PX118
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PX119
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The Court agrees. Apple has conceded that it had notice of these two patents in
September 2010, which is the only purpose for which Samsung has sought to
introduce this exhibit. Therefore, the probative value of the exhibit is very low.
In contrast, introducing this exhibit would be an unnecessary waste of time and
duplication of evidence. Additionally, there is also the risk that the jury will
consider the evidence for an improper purpose. For example, that the exhibit
establishes the valuation or validity of a claim in dispute. Accordingly, this
exhibit is excluded pursuant to FRE 403. See Old Chief v. United States, 519
U.S. 172, 184-85 (1997). Samsung may, instead, introduce Apple’s interrogatory
response number 13 to establish notice.
Sustained. The Lutton deposition testimony identified by Apple relates to the
September 2010 settlement negotiations. For the same reasons identified above
with respect to DX 531, this testimony is also excluded under FRE 403.
EXHIBIT
COURT’S RULING ON OBJECTION
Overruled. Samsung objects that Dr. Srivastava’s expert report is insufficiently
particular with regard to his opinion that the ‘460 patent is invalid in light of
PX118, the “Suso” patent. Upon review, however, the Court finds that both Dr.
Strivastava’s expert report and claim chart for the ‘460 patent cite specific
portions of the Suso patent. See, e.g., Strivastava Expert Report ¶ 76 (“The
[Suso] patent discloses sequentially displaying other images stored in a memory
through the use of scroll keys. See, e.g., ‘648 patent, col. 6 ll. 8-10, col. 7 ll. 3749, and FIGS. 7 and 8a-8b.”). Thus, Dr. Strivastava has provided Samsung with
sufficient notice of his opinions regarding the invalidity of the ‘460 patent based
on Suso.
Overruled. Samsung objects that Dr. Strivastava’s expert report is insufficiently
particular with regard to his opinion that the ‘460 patent is invalid in light of
PX119, the “Yoshida” patent. Upon review, however, the Court finds that both
Dr. Strivastava’s expert report and claim chart for the ‘460 patent cite specific
portions of the Yoshida patent. See, e.g., Strivastava Expert Report ¶ 317 (“The
‘417 patent states: ‘the digital camera 100 is provided with the communicating
function, such as telephone, electronic mail, etc., and as shown in FIG. 1 (which
shows the outer appearance of the apparatus), there are provided on the front of
the digital camera 100 a shutter button 102, a mode dial 101, a lens 108, and a
stroboscope 109 which is arranged above the lens 108.’ ‘417 patent, col. 5, ll.
24–30.”). Thus, Dr. Strivastava has provided Samsung with sufficient notice of
his opinions regarding the invalidity of the ‘460 patent based on Yoshida.
2. Apple’s Objections
COURT’S RULING ON OBJECTION
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NUMBER
DX2635
Overruled. Samsung has agreed to use PX112 in place of DX2635, mooting
Apple’s objection.
K. Greg Chapman
COURT’S RULING ON MOTION TO EXCLUDE
Samsung moves to exclude the testimony of Greg Chapman. ECF No. 1747. Apple filed an
opposition. ECF No. 1763. For the reasons set forth below, the Court GRANTS Samsung’s
motion.
Federal Rule of Civil Procedure 26(a)(1)(A) requires the disclosure of the name and contact
information of individuals likely to have discoverable information. FRCP 26(e) requires timely
supplementation or amendment of a party’s initial disclosures. A party may not use untimely
disclosed evidence at trial except upon a showing that “the failure was substantially justified or is
harmless.” Fed. R. Civ. P. 37(c)(1).
Apple did not disclose that Greg Chapman had information relevant to this proceeding in its
initial disclosures. Although Mr. Chapman appears to have been involved in the ITC case, Apple
did not amend the initial disclosures to include Greg Chapman as a potential witness in this
litigation until March 4, 2012, four days before the close of discovery. Samsung claims it was not
able to depose Mr. Chapman as a result of this late disclosure. The Court finds that Samsung was
prejudiced by Apple’s failure to amend its initial disclosures to give notice to Samsung that Mr.
Chapman likely held discoverable information. Moreover, the Court cannot say that the failure was
substantially justified or harmless. Apple has given no satisfactory reason for its delayed
disclosure.
Apple claims that Samsung was not prejudiced by its late disclosure because Judge Grewal
permitted Samsung to depose 5 Apple witnesses of its choosing for 10 hours after the discovery cut
off, and Samsung failed to select Mr. Chapman as one of the deponents. However, the remedy
crafted by Judge Grewal arose to mitigate the prejudice that Samsung suffered from Apple’s failure
to produce deposition transcripts of Apple employees in the ITC case. This remedy was not
directly related to Mr. Chapman. It is not clear how many individuals were involved in the ITC
case, from which Samsung was required to select. In short, the Court finds that given the specific
circumstances of this case, Mr. Chapman was not timely disclosed in Apple’s amended initial
disclosures, or in any interrogatory response, such that Samsung had timely notice in order to
conduct a deposition. Nor can the Court say that the failure to timely disclose was substantially
justified or harmless. Therefore Samsung’s motion is GRANTED.
L. Emilie Kim
COURT’S RULING ON MOTION TO EXCLUDE
Samsung moves to exclude the testimony of Emilie Kim with respect to Apple’s prior art.
ECF No. 1747. Apple has filed an opposition. ECF No. 1763. For the reasons set forth below, the
Court GRANTS Samsung’s motion.
Federal Rule of Civil Procedure 26(a)(1)(A) requires the disclosure of the name and contact
information of individuals likely to have discoverable information. FRCP 26(e) requires timely
supplementation or amendment of a party’s initial disclosures. A party may not use untimely
disclosed evidence at trial except upon a showing that “the failure was substantially justified or is
harmless.” Fed. R. Civ. P. 37(c)(1).
Apple initially disclosed Ms. Kim as a witness regarding “design and development of . . .
Software.” Hutnyan Decl. Ex. E. Apple did not disclose that it intended to introduce Ms. Kim as a
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witness regarding Apple’s prior art (iBook and iSight) until the July 6, 2012 witness list. Apple’s
disclosure is untimely, and Ms. Kim will not be permitted to testify regarding Apple’s prior art.
Apple appears to concede this as it has stated that it “will not to [sic] inquire about the iBook and
iSight during Ms. Kim’s direct examination.” Apple’s Response at 3.
M. Sony Keeper of Records
COURT’S RULING ON MOTION TO EXCLUDE
Samsung moves to exclude the testimony of Dan Dzuban, a record keeper for third party
Sony. ECF No. 1747. Apple has filed an opposition. ECF No. 1763. The Court GRANTS-in-part
and DENIES-in-part Samsung’s motion.
Federal Rule of Civil Procedure 26(a)(1)(A) requires the disclosure of the name and contact
information of individuals likely to have discoverable information. FRCP 26(e) requires timely
supplementation or amendment of a party’s initial disclosures. A party may not use untimely
disclosed evidence at trial except upon a showing that “the failure was substantially justified or is
harmless.” Fed. R. Civ. P. 37(c)(1).
The Sony Record Keeper was not disclosed on Apple’s witness list until July 6, 2012.
However, Apple has explained that it only intends to introduce Mr. Dzuban’s testimony to
authenticate and lay the foundation for third party Sony documents. The Court finds that although
Mr. Dzuban was not timely disclosed under Rule 26(a), Apple has established that under Rule 37(c)
that this failure to disclose was harmless. Samsung has been aware of this prior art since October
2011. Thus, Mr. Dzuban may testify only to authenticate and lay the foundation for Sony’s
documents. Mr. Dzuban may not offer any other testimony in this matter. If Samsung is willing to
stipulate to the authenticity of the Sony documents, Mr. Dzuban need not testify.
IT IS SO ORDERED.
Dated: August 15, 2012
_________________________________
LUCY H. KOH
United States District Judge
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Case No.: 11-CV-01846-LHK
ORDER ON OBJECTIONS TO EXHIBITS; ORDER ON SAMSUNG’S MOTION TO EXCLUDE WITNESSES
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