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Apple provides detailed listing of Samsung's misconduct during the discovery process


Apple last week filed a motion seeking to recoup US$15.7 million out of the approximately $60 million it incurred in legal fees during its first trial against Samsung.

In its brief detailing all of the legal work that went into litigating the case, Apple writes that its legal fees were "multiplied" on account of Samsung's own conduct during the discovery process. As a direct result of Samsung's behavior, the brief reads, Apple's legal team was forced to "file multiple motions to compel, including motions seeking production of copying documents, source code and financial information."

Apple also points out that because Samsung initially failed to make key executives available for deposition, Apple was forced to send its attorneys back to "Korea at considerable expense."

On account of Samsung's intransigence during the discovery process, the tech giant was slapped with sanctions a number of times, something which Apple was all too happy to detail in its brief.

Below is a summary of Samsung conduct that resulted in court-imposed sanctions.

1) Samsung was sanctioned for failure to comply with discovery orders regarding copying documents

Samsung's initial document production was due on September 12, 2011. When the deadline came and passed, Samsung only handed over to Apple approximately 15,000 pages of documents. Of those documents, only a small number related to design issues, which Samsung was required to look for and produce.

Apple's motion reads in part:

At the hearing on Apple's motion, Samsung told the Court that such documents did not exist: "[I]n producing our design documents we are not obligated to manufacture documents that don't exist. They are looking for a smoking gun document, a document that says we copied something from Apple. We don't have those documents."

Judge [Paul] Grewal ordered Samsung to produce all documents from the custodial
files of Samsung designers of the Samsung products at issue...

Samsung failed to comply with that order. Apple moved to enforce the Court's order and won. Samsung was again ordered on December 22, 2011 to produce the above documents by December 31, 2011. Samsung produced many additional documents after the second order, even retaining a second e-discovery vendor to assist as the volume of additional production was so high.

Apple then moved for, and was granted, sanctions. Judge Grewal sanctioned Samsung for violating two discovery orders requiring production of design and copying documents.

Samsung was sanctioned for withholding source code

Samsung was also required to produce source code for its accused products by December 31, 2011. Samsung missed this deadline, and though they offered up an explanation, Grewal found that there was no evidence to demonstrate that Samsung, in good faith, attempted to procure said source code by the aforementioned deadline.

Samsung was sanctioned for withholding financial information

During the course of the trial, Apple sought to review Samsung's financial information as a means to determine the extent to which Samsung's profits stemmed from its accused products. After Apple filed a motion to compel the production of pertinent financial information in January 2012, Samsung was directed by the Court to produce sales and financial information by February 3, 2012.

When February 3 came around, Samsung handed over a single spreadsheet.

Understandably not content, Apple moved for discovery sanctions, which Grewal soon ordered.

In total, Samsung revised its production of sales and financial information six times- on February 3, 10 and 28, March 8 (the close of fact discovery), March 22 and March 29.
On April 16, which was more than a month after the discovery cut-off, Samsung completely overhauled its financial calculation methods immediately prior to the delivery of Mr. Wagner's expert report.

Samsung was sanctioned for untimely disclosure of its theories

Samsung was also sanctioned for withholding its defenses regarding Apple's utility and design patents until after discovery had already closed.

Samsung faced sanctions again as a result of its decision to withhold until after the close of discovery its defenses to Apple's utility and design patent claims. On November 14, 2011, Apple served contention interrogatories seeking disclosure of Samsung's non-infringement and validity theories.
Samsung's response, served on December 19, 2011, was 18 pages of boilerplate and Bates numbers. On March 19, 2012, nine days after the close of fact discovery, Samsung served a 145-page supplemental response. Apple moved to strike the portions of Samsung's expert reports relying on these untimely disclosed theories. Judge Grewal struck those portions of Samsung's expert reports, and the Court affirmed his Order.
All told, it's no secret that Samsung and its legal team were no strangers to controversy during the course of this litigation. If you recall, Apple also took Samsung to task regarding its email-retention policy and recently asked for sanctions following news that Samsung executives were erroneously given access to confidential Apple licensing agreements.

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