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Discovery and Pre-Trial Filings

Discovery and Pre-Trial Filings. If you’re going to play in my sandbox, you play by my rules Discovery ground rules Samsung’s discovery responses Motion practice arising from Samsung’s answers to contention requests Last ditch attempt by Samsung to use excluded evidence Why did Samsung beg?

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Discovery and Pre-Trial Filings

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  1. Discovery and Pre-Trial Filings • If you’re going to play in my sandbox, you play by my rules • Discovery ground rules • Samsung’s discovery responses • Motion practice arising from Samsung’s answers to contention requests • Last ditch attempt by Samsung to use excluded evidence • Why did Samsung beg? • Lessons

  2. If You’re Going to Play In My Sandbox, You Play By My Rules • Effort to retain control of workload • Courts have implemented a collection of rules to make litigation fairer and more efficient, and the task of overseeing cases less burdensome • Rule 26 and 37 • Local Patent Rules • Supplemented by case-made law that court is justified in narrowing scope of case

  3. Discovery Ground Rules • Mandatory disclosures • Pursuant to Rule 26 • Under 26(a)(1), must disclose identity of individuals and documents that you may use to support your claims or defenses • Parallel mandatory disclosures under Patent Local Rule 3 • Plaintiff • Under 3-1, detailed infringement contentions • Under 3-2, produce documents related to statutory bars and date of invention • Defendant • Under 3-3, detailed invalidity contentions • Under 3-4, documents pertaining to operation of accused devices and prior art

  4. Discovery Ground Rules Cont’d • Rule 26(e) duty to supplement • Applies to both 26(a) disclosures and to other forms of discovery responses • Modification of disclosures/responses • Under 3-6, amendments “may be made only by order of the Court upon a timely showing of good cause” • Duty to supplement not abrogated by 3-6

  5. Discovery Ground Rules Cont’d • What happens if a party doesn’t fulfill its mandatory disclosure obligations or its duty to supplement? • Under Rule 37(c)(1), a party is not allowed to use that information (including at trial) “unless the failure was substantially justified or is harmless” • Court has option of imposing alternate remedies

  6. Samsung’s Discovery Responses • Initial 26(a)(1) and Local Rule 3 disclosures • ~9/7/11 • Unclear whether any by Samsung were directed to design patents or trade dress • Answer to Interrogatory no. 5 • 9/8/11 answer unenlightening • Answer to Interrogatory no. 12 • 12/19/11 answer unenlightening • Written discovery closed 3/10/12 • Samsung amended its answers to contention interrogatories • 3/19/12 disclosed new theories • Sherman expert report served 3/23/12 • Contained new stuff • F700 design • Sony style design

  7. Motion Practice Arising From Samsung’s Answers to Contention Interrogatories • Apple moved to strike portions of Samsung’s expert reports (939) • Magistrate Grewal granted part of Apple’s motion (1144) • Samsung then moved Koh for relief (1216) • Koh denied Samsung request for relief after trial started (1545) • Before Koh’s 1545 ruling, Samsung filed trial brief (1322) with excluded evidence • In response, Apple moved to enforce Grewal order excluding evidence (1420) • Parties exchanged opening slides before trial • Before trial, Apple objected to Samsung’s opening slides containing excluded evidence (1441) • Samsung responded same day (1442) • Koh grantedApple’s objections same day (1456) • Koh granted Apple motion to enforce Grewal order (1553) on same day as 1545

  8. Last Ditch Attempt By Samsung To Use Excluded Evidence • After voir dire, Samsung brought in the big gun – John Quinn • Founder of Quinn Emmanuel • Generally considered one of the best patent trial lawyers in the country • His firm boasts a win rate at trial of 90% • Quinn attempted to reargue the rulings to exclude evidence of F700 development and Sony-style design • Koh wouldn’t hear it • Quinn then released the excluded evidence to the press

  9. Why Did Samsung Beg? • Samsung didn’t want to be painted as a copiest – or at least not as the only copiest • Stigma • Probative of infringement, willful infringement, validity, and secondary meaning • Without excluded evidence, focus remains on Samsung’s “slavish copying” • With the excluded evidence, Samsung case stronger

  10. Do Samsung’s Relevance Arguments Regarding Sony-Style Design Hold Water? • To rebut Apple’s creation theory that the iPhone was “revolutionary” • To rebut allegations of copying • To establish that the industry at large was moving toward the basic design concepts • To rebut allegations of willfulness

  11. Lessons • Even the best lawyers make mistakes – key is to minimize those that can’t be corrected • Adhere to FRCP and Patent Local Rules • If a defendant, think hard about how to diffuse allegations of copying • What should Samsung have done? • Made sure all facts supportingits non-infringement and invalidity defenses were timely memorialized in discovery responses

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