While Apple emerged victorious in its patent suit against Samsung last summer, the two tech behemoths have another trial looming concerning Samsung's Galaxy Nexus smartphone along with a slew of other Samsung devices. Consequently, 2014 will see both Apple and Samsung take center stage yet again in an entirely new patent suit, held in the same jurisdiction with the same judge.
The 2014 patent trial is currently in the discovery phase of litigation, and Florian Mueller recently stumbled upon a rather interesting motion filed by Apple entitled, "Google's Search Methodology Was Clearly Flawed."
The gist of the memo is that Apple has asked Google for certain documentation in connection with the aforementioned litigation, and that Google's search methodology in carrying out Apple's requests has been wanting.
In large and complex litigation suits like the one involving Apple and Samsung, the only way for large companies to handle wide-ranging discovery requests is to run automated searches using pre-determined search terms. And therein lies Apple's complaint -- they claim that the search terms used by Google aren't sufficiently inclusive and are subsequently leaving out documents that would otherwise be responsive to Apple's requests.
Apple believes Google purposely uses suboptimal search terms. For example, Apple claims to know that Google uses a different term internally for what Apple calls "slide to unlock". As a result, searches for "slide to unlock" wouldn't deliver too many documents in which Google employees discussed this patented technology.
To remedy this, Apple has offered to "work cooperatively with Google to correct these flaws." Moving forward, Apple wants Google to hand over its list of "search terms and custodians" to ensure that the search is as comprehensive as possible. Google, in turn, isn't keen on complying with Apple's offer to help, and goes so far as to call Apple's request for search terms to be an "undue burden."
Having worked on complex litigation cases involving large-scale discovery requests myself, I have to note that compiling a list of search terms is hardly burdensome. Of course, it's not as if one would expect Google to openly welcome Apple's ostensibly selfless offer of support.
Google further articulates that it's merely a third party to Apple and Samsung's litigation, and as such, the standard for what constitutes an "undue burden" is much lower than it would ordinarily be.
Apple contends that regardless of Google's standing as a third party, compiling a list of search terms and custodians is hardly a burden at all. What's more, Apple calls out Google for attempting to have it both ways to the extent that it boldly labels itself a third party only when it happens to be convenient.
Apple's motion reads in part:
Characterizing Google as merely a "third party" fails to capture the full extent of Google's involvement and collaboration with Samsung regarding the subject matter of this lawsuit. Google developed Android, which is used in the accused Samsung products and provides much of the accused functionality. Google and Samsung jointly developed the Galaxy Nexus, which is one of the accused products. Indeed, unlike every other third party in this case, Google affirmatively chose to involve itself in this litigation by providing declarations from its engineers to support Samsung's positions during the preliminary injunction phase of the case. Finally, in connection with Apple's Subpoenas, Google retained the law firm representing Samsung in this case, and used the same lawyers [Quinn Emanuel] representing Samsung within that law firm. In addition, both Google and Samsung have repeatedly resorted to claims of a "common interest privilege" in refusing to produce documents in this case. As a result, it simply strains credibility for Google to now assert that it should be viewed as a neutral third party. Google is providing material support to Samsung regarding the subject matter of this case; asking it to now provide basic information regarding its document production process is not unduly burdensome.
It'll certainly be interesting to see how this one plays out.