13-08-30 Samsung Motion To Strike Portions of Apple Damages Report

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02198.51855/5494997.3

Case No. 11-cv-01846-LHK
SAMSUNGS MOTION TO STRIKE PORTIONS OF THE EXPERT REPORT OF JULIE L. DAVIS

QUINN EMANUEL URQUHART & SULLIVAN, LLP
Charles K. Verhoeven (Bar No. 170151)
charlesverhoeven@quinnemanuel.com
50 California Street, 22
nd
Floor
San Francisco, California 94111
Telephone: (415) 875-6600
Facsimile: (415) 875-6700

Kevin P.B. Johnson (Bar No. 177129)
kevinjohnson@quinnemanuel.com
Victoria F. Maroulis (Bar No. 202603)
victoriamaroulis@quinnemanuel.com
555 Twin Dolphin Drive, 5
th
Floor
Redwood Shores, California 94065-2139
Telephone: (650) 801-5000
Facsimile: (650) 801-5100

William C. Price (Bar No. 108542)
williamprice@quinnemanuel.com
Michael T. Zeller (Bar No. 196417)
michaelzeller@quinnemanuel.com
865 S. Figueroa St., 10th Floor
Los Angeles, California 90017
Telephone: (213) 443-3000
Facsimile: (213) 443-3100

Attorneys for SAMSUNG ELECTRONICS
CO., LTD., SAMSUNG ELECTRONICS
AMERICA, INC. and SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION
APPLE INC., a California corporation,

Plaintiff,

vs.

SAMSUNG ELECTRONICS CO., LTD., a
Korean business entity; SAMSUNG
ELECTRONICS AMERICA, INC., a New
York corporation; SAMSUNG
TELECOMMUNICATIONS AMERICA,
LLC, a Delaware limited liability company,

Defendant.

CASE NO. 11-cv-01846-LHK

SAMSUNGS MOTION TO STRIKE
PORTIONS OF THE EXPERT REPORT
OF JULIE L. DAVIS

Date: October 10, 2013
Time: 1:30 p.m.
Place: Courtroom 8, 4th Floor
Judge: Hon. Lucy H. Koh

PUBLIC REDACTED VERSION

Case5:11-cv-01846-LHK Document2386 Filed08/30/13 Page1 of 10
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02198.51855/5494997.3
-i-
PLEASE TAKE NOTICE that on October 10, 2013, at 1:30 p.m., or as soon as the matter
may be heard by the Honorable Lucy H. Koh in Courtroom 8, United States District Court for the
Northern District of California, Robert F. Peckham Federal Building, 280 South 1st Street, San
Jose, CA 95113, Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., and Samsung
Telecommunications America, LLC (collectively, Samsung) shall and hereby do move pursuant
to the Courts April 29, 2013 and August 22, 2013 Case Management Orders for an order striking
portions of the Expert Report of Julie L. Davis, CPA.
This motion is based on this notice of motion and supporting memorandum of points and
authorities; the Declaration of Robert J. Becher (Becher Decl.) and exhibits thereto; and such
other written or oral argument as may be presented at or before the time this motion is taken under
submission by the Court.
RELIEF REQUESTED
An order striking certain identified paragraphs, and the corresponding portions of the
Expert Report of Julie L. Davis, CPA.
STATEMENT OF ISSUES
Whether the Expert Report of Julie L. Davis, CPA includes new theories, new
methodologies, new data, and new damages periods.

DATED: August 30, 2013 QUINN EMANUEL URQUHART &
SULLIVAN, LLP

By /s/ Victoria F. Maroulis
Victoria F. Maroulis
Attorney for SAMSUNG ELECTRONICS CO.,
LTD., SAMSUNG ELECTRONICS AMERICA,
INC., and SAMSUNG
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02198.51855/5494997.3
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INTRODUCTION
The Court ruled that the sole purpose of the [new] trial is to correct for the erroneous
notice dates (Dkt. 2316 at 2-3), and the parties are thus limited to the theories raised in the first
trial. See, e.g., Becher Decl.
1
Ex. 4, 4/29/13 Hrg. Tr. at 67:17-21. The Court explicitly instructed
that there can be no variations other than the notice date. Id. at 65:12-21; see also 70:12-13
(No new theories, no new methodologies, no new data, no new damages period.). Despite the
Courts rulings, Apples new expert, Ms. Davis, attempts to increase Apples claimed damages by
(a) presenting damages methodologies and damages periods that Mr. Musika did not discuss in his
reports or at trial; (b) proffering opinions and calculations that the Court previously excluded; and
(c) relying on exhibits and testimony that Mr. Musika did not cite in his report or discuss at trial.
While the changes may look small on paper, they result in the addition of hundreds of millions of
dollars in additional claimed damages, severely prejudice Samsung, and should be stricken.
I. MS. DAVISS NEW THEORIES SHOULD BE STRICKEN
A. Ms. Daviss Lost Profits | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Ms. Davis improperly changes Mr. Musikas method for calculating Apples lost profits in
order to claim over | | | | | | | | more than the amount of lost profits Apple sought at the first trial
for the same 13 products at issue in the new trial. Compare Davis Rpt. Ex. 17.1-PT-H (| | | | | | | | | |
in lost profits for the 13 new trial products) with PX25A1.4 ($385,937,640 in lost profits for the
same 13 products). Mr. Musikas method for calculating lost profits assumed that Samsung would
design around Apples asserted intellectual property, and that Apple should be entitled to lost
profits only during those hypothetical design around periods. See Trial Tr. at 2084:3-19. Mr.
Musika assumed those design around periods | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
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| | Musika Rpt. 129.

1
Copies of the Davis Report, Musika Report, and Supplemental Musika Report are attached
as Exhibits 1-3 to the Declaration of Robert J. Becher (Becher Decl.). A redlined comparison of
the Davis Report and the Musika Report are attached as Exhibit 4 to the Becher Declaration.
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02198.51855/5494997.3
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In contrast, Ms. Davis now includes calculations that | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
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| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Davis Rpt. 93; Becher Decl. Ex. 5,
8/26/13 Davis Dep. Tr. at 110:5-12, 130:21-131:3. | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Ms. Davis increases Apples lost profits claim
by more than $305 million, as compared to her calculations using Mr. Musikas methodology
where the design around period started as of the date of first infringement. Compare Davis Rpt.
Ex. 17.1-PT-H (| | | | | | | | | | | | | | in lost profits using new theory) with Ex. 17.1-PT-J (| | | | | | | | | | |
in lost profits using Mr. Musikas original theory); Becher Decl. Ex. 5 at 134:12-20.
2

The Court previously barred Mr. Musika from presenting the methodology that Ms. Davis
now seeks to use, because it was not timely disclosed in his expert reports. Dkt. 1678, 1690. The
Court held: Mr. Musika did not timely disclose his calculations pursuant to an alternative two
notice period theory. Dkt. 1690 at 2. Under Mr. Musikas excluded two notice period theory,
Apple sought to increase its claimed damages by shifting certain design around periods to start
after first infringement, as Ms. Davis has done. See, e.g., Davis Rpt. Ex. 17.2-PT-H, 17.2-PT-I.
3

The Court precluded Mr. Musika from doing so. Because the Courts ruling excluding Mr.
Musikas alternate lost profits theory remains binding, Ms. Daviss new calculations should be
stricken. See Dkt. 2316 at 2-3 (prior rulings on . . . evidentiary objections remain in effect as law
of the case.); Becher Decl. Ex. 6, 8/21/13 Hrg. Tr. at 12:14-16 ([A]nything that was previously
excluded . . . does not fall within the proper scope of this trial.).
4

2
Ms. Davis knew this would be a problem and thus included an alternative set of calculations
that adhere to Mr. Musikas methodology, specifically Exhibits 17-PT-J and 17-PT-K. Tellingly,
using her new methodology, Ms. Davis calculates lost profits | | | | | | | | | | | | | | | | | | | | despite the
fact that Mr. Musika did noteither in his reports or at trial. | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
3
The two notice period theory is shorthand for the fact that shifting these design around
periods results in two lost profits periods per productone lost profits period for the 381 patent
that starts on August 4, 2010, and one for other patents that starts on the filing of the complaint or
amended complaint.
4
This outcome is consistent with the Courts application of these rules to Samsung. At the
April 29, 2013 CMC, Samsung requested that it have an opportunity to present to the jury
(footnote continued)
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02198.51855/5494997.3
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Ms. Daviss new approach is also contrary to Federal Circuit law. When calculating lost
profits, courts look to whether noninfringing design arounds are available starting on the date of
first infringementeven if it is earlier than the notice date. In Grain Processing Corp. v.
American Maize-Products Co., 185 F.3d 1341, 1347 n.3 (Fed. Cir. 1999), the patent holder could
not recover damages for infringing sales prior to giving notice via filing its complaint in 1981,
because it did not mark its products. The court found that because a non-infringing alternative
first used in 1991 could have theoretically been implemented in 1979, the defendant could have
completed its design around before receiving notice. Id. at 1347-48. Accordingly, the Federal
Circuit affirmed the denial of lost profits. Id. at 1353-55.
5

Likewise, in Power Integrations, Inc. v. Fairchild Semiconductor Intl., 711 F.3d 1348
(Fed. Cir. 2013), the Federal Circuit distinguished between (1) the bar on recovery of damages for
failure to mark or provide actual notice under 35 U.S.C. 287, and (2) the hypothetical
reconstruction of the market for purposes of calculating lost profits, which takes place at the date
of first infringement regardless of actual notice. See id. at 1378-1379 (finding error in a lost
profits award where the price erosion analysis used the date of actual notice, rather than the date of
first infringement). As the Federal Circuit explained, what the patentee would have made but for
the infringement requires analysis of infringement-free market conditions, and thus the proper
starting point of such a price erosion analysis is the date of first infringement. Id. at 1379.
6
Ms.

different damages period." (Becher Decl. Ex. 4 at 81:14-16.) Apple vociferously opposed (id. at
81:17-23) and the Court denied Samsungs request.
5
Ms. Davis improperly relies on | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | But the March 1 Order says nothing about the proper
period to evaluate available non-infringing alternatives for lost profits purposes and should not be
interpreted to contradict Federal Circuit precedent.
6
In her reasonable royalty opinion, Ms. Davis acknowledges that design arounds should be
considered as at the date of first infringement, as she must under governing law. See Wang Labs,
Inc. v. Toshiba Corp., 993 F.2d 858, 869-870 (Fed. Cir. 1993) (hypothetical negotiations should
be as of date of patent issuance, even if this was before the notice date); Laserdynamics, Inc. v.
Quanta Computer, Inc., 694 F.3d 51, at 75 (Fed. Cir. 2012) (the six year limitation on recovery of
past damages does not preclude the hypothetical negotiation from taking place on the date
infringement started, even if damages cannot be collected until a later time) (citing Wang, 993
F.2d at 870). Panduit Corp. v. Stahlin Bros. Fibreworks, Inc., 575 F.2d 1152, 1156 (6th Cir.
1978), recognized that the date for evaluating noninfringing substitutes for a lost profits analysis is
the date of first infringement, the same as the date for evaluating a hypothetical negotiation. Id. at
(footnote continued)
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02198.51855/5494997.3
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Daviss attempt to | | | | | | | | | | | | | | | | | | | | | | | | | | | | | violates this cardinal principle by assuming
that Samsung | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Accordingly, Ms. Daviss new opinions that move the start of the hypothetical design
around periods should be stricken as new, contrary to the Courts orders, and inconsistent with
Federal Circuit precedent.
B. Ms. Daviss New Opinion on Apples Sales Capacity Should Be Stricken
In her report, Ms. Davis concedes that | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
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Nonetheless, she asserts that | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Id. At her deposition, Ms.
Davis clarified that this includes | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | This | | | | | | | | | | opinion is entirely new. It is
nowhere to be found in Mr. Musikas reports, deposition transcript, or trial testimony. Indeed, Mr.
Musika agreed at trial that Apple had no capacity to make any additional sales of the iPhone 4
from June through October 2010. Trial Tr. at 2141:13-2142:14 (Q. And this is a time [June-
October 2010] when Apple couldnt even service its own customers for the iPhone 4; correct? A.
[Mr. Musika] Well, yes, with the iPhone 4. They had available iPhones, but not the iPhone 4.).
At no point did Mr. Musika say that Apple could have | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
as Ms. Davis now asserts for the first time. Ms. Daviss new opinion should be stricken.
C. Ms. Daviss New Infringers Profits Theories Should Be Stricken
At trial, Apple sought infringers profits solely based on Samsungs gross profits. Now,
Apple seeks to inflate its potential damages by presenting two additional theories of infringers
profits| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Mr. Musika never calculated infringers profits equal to Samsungs incremental profit on

1162. Indeed, the Panduit courts analysis of non-infringing substitutes for purposes of assessing
lost profits and a reasonable royalty was one and the same. Id. at 1156, 1161, 1162.
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a product-by-product basis in his expert reports or at trial. See Musika Rpt. 151 | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Becher Decl. Ex. 5 at 274:4-19, 276:16-24. Mr.
Musika did not even mention incremental profits to the jury. Trial Tr. at 2031-2172. Yet, Ms.
Davis now calculates infringers profits for each of the 13 products at issue in the new trial based
on | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | See, e.g., Davis Rpt. Ex. 17.1-PT-I; see also id. at Ex.
50.1-PT - Ex. 50.9-PT.
Apple has claimed that Ms. Daviss | | | | | | | | | | | | | | | | | theory is not new because she used
Mr. Musikas methodology. But Mr. Musika only calculated overall | | | | | | | | | | | | | | | | | for all
Samsung products (including non-accused products). See Musika Rpt. Ex. 50-S; Trial Tr. at
2058:4-6 (admitting that PX28 (identical to Ex. 50-S) shows the numbers for the overall entity,
and includes other sales of non-accused items.). Mr. Musika never calculated | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Ms. Davis now does both. Her new | | | | | | | |
| | | | | | | | theorywhich calculates as much as | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
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| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | should be stricken.
Ms. Daviss presentation of infringers profits based on | | | | | | | | , see, e.g., Davis Rpt. Ex.
17-PT-H, Ex. 18-PT-H, is inconsistent with Apples assurances that it would present the same
calculation of deductible expenses. Becher Decl. Ex. 4 at 59:21-62:12. Although Mr. Musikas
expert report included calculations of Samsungs revenue, at trial, Mr. Musika presented
infringers profits as equal to Samsungs gross profits. See Trial Tr. at 2053:17-2055:16. Mr.
Musika did not dispute that Samsung was entitled to deduct at least some costs. Id. at 2063:23-24;
see also id. at 2066:18-19 (in deducting costs, he stop[ped] at the gross profit line).
D. The Court Should Strike Ms. Daviss New Descriptions of the Utility Patents
Ms. Daviss descriptions of the 381, 915 and 163 patents (Davis Rpt. 27-29) differs
dramatically from Mr. Musikas descriptions (Musika Rpt. 11, 13, 15). As shown by the redline
comparing the experts descriptions of the patents, her descriptions broaden and change the scope
of the patented technology. Becher Decl. Ex. 7. This unjustified change should not be allowed.
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E. Ms. Davis Offers Opinions That Have Already Been Excluded
During the first trial, the Court barred Apple from offering testimony that Samsung
[v]iolated court orders to produce financial records, and limited Apple to asking Mr. Musika a
single leading question related to Samsungs discovery conduct. Dkt. 1668 at 1-2. Yet, Ms. Davis
purports to | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | See, e.g., Davis Rpt. 145, 147-148, 152-155.
Additionally, in its Daubert ruling, the Court excluded Mr. Musikas opinion that Apple suffered
irreparable harm as a result of Samsungs alleged infringement, and his opinion that Samsungs
cost data failed to meet Samsungs burden of proving deductible expenses. Dkt. 1157. Ms. Davis
revives both of these opinions by devoting an entire section of her report to | | | | | | | | | | | | | | | | | | | | |
| | | (Davis Rpt. 74-88) and opining on | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | (id. at 162). The Court should enforce its prior rulings and strike these opinions. See Dkt.
2316 at 2-3 (prior rulings on . . . evidentiary objections remain in effect as law of the case.).
II. THE COURT SHOULD STRIKE MS. DAVISS RELIANCE ON NEW EVIDENCE
Ms. Davis relies on dozens of documents that Mr. Musika did not cite in his reports or at
trial. For example, while Mr. Musikas lost profits analysis relied on the documents listed in
Exhibits 24 and 25 to his original report as evidence of demand for the patented products (Musika
Rpt. 121-122; see also Musika Supp. Rpt. Ex. 24-S), Ms. Davis cites numerous additional
documents.
7
Ms. Davis relies on this evidence | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
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even though Mr. Musikas reports did not cite these materials.
8
All these references should be

7
See Davis Rpt. 106, 134, 136, 137, 41-42, 58-60 (citing SAMNDCA00214969,
SAMNDCA10246338, PX58, PX60, PX62, PX55, PX2261, PX186, PX21A, PX7, PX8, PX3,
PX6 and PX174).
8
Davis Rpt. 133 (citing APLNDC-Y0000146961, APLNDC-Y0000233381, APLNDC-
Y0000234932, APLNDC-Y0000235973, PX142, PX11, PX12, PX13 and PX127).
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02198.51855/5494997.3
-7-
stricken. See Becher Decl. Ex. 6 at 20:24-21:4 (acknowledging that the Courts order compelled
[Ms. Davis] to give exactly the same opinions that Mr. Musika gave . . . using the same documents
he used).
Ms. Davis also relies extensively on testimony not cited by Mr. Musika in his reports or at
trial. First, Ms. Davis cites deposition transcripts and declarations that do not appear anywhere in
Mr. Musikas reportsincluding the declaration of Eric Roberts, a Morrison Foerster employee
who was never deposed in this case.
9
Second, Ms. Davis relies on the trial testimony of several
individuals, including Scott Forstall, Chris Stringer, Russell Winer, Susan Kare, Peter Bressler,
and Dong Hoon Chang, none of whom were even mentioned in Mr. Musikas reports or trial
testimony. Davis Rpt. 135, 136. Finally, Ms. Davis belatedly addresses testimony that Mr.
Musika did not respond to at trial. Id. (Junyeun Wang); see also id. at 165 (Tim Sheppard).
Because Apple chose not to recall Mr. Musika for further testimony at the conclusion of
Samsungs case, Ms. Davis should not be permitted to address this testimony.
Finally, Mr. Musika testified at trial about just four trial exhibits.
10
Trial Tr. at 2031-2172
(testimony limited to PX25A1, PX28, PX34 and PX194). In contrast, Ms. Davis refers to dozens
of documents about which Mr. Musika did not testify, and which are directed to liability issues,
rather than damages. See, e.g., Davis Rpt. 132, 166, 254-256. Apples transparent strategy is to
introduce its entire liability case through Ms. Davis. Such testimony is impermissible.

9
Davis Rpt. at 147 (citing 2/28/12 Decl. of Eric R. Roberts); id. at 152-153 (3/31/12
Depo, of Jaehwan Sim).
10
Samsung understands the Courts order as limiting Ms. Daviss trial testimony to the
evidence Mr. Musika presented to the jury at trial. See, e.g., Becher Decl. Ex. 4 at 41:18-42:5 (the
new trial is to be a very simply change of Mr. Musikas exhibits to start from the correct date).
If Samsungs understanding of the Courts order is incorrect, both sides damages experts should
be permitted to rely on exhibits discussed in reports but not presented to the jury.
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02198.51855/5494997.3
-8-

DATED: August 30, 2013 QUINN EMANUEL URQUHART &
SULLIVAN, LLP

By /s/ Victoria F. Maroulis
Charles K. Verhoeven
Kevin P.B. Johnson
Victoria F. Maroulis
William C. Price
Michael T. Zeller

Attorneys for SAMSUNG ELECTRONICS
CO., LTD., SAMSUNG ELECTRONICS
AMERICA, INC. and SAMSUNG

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02198.51855/5494303.2

Case No. 11-cv-01846-LHK (PSG)
BECHER DECLARATION ISO SAMSUNG'S MOTION TO STRIKE PORTIONS OF THE EXPERT REPORT OF
JULIE L. DAVIS
QUINN EMANUEL URQUHART & SULLIVAN, LLP
Charles K. Verhoeven (Bar No. 170151)
charlesverhoeven@quinnemanuel.com
50 California Street, 22
nd
Floor
San Francisco, California 94111
Telephone: (415) 875-6600
Facsimile: (415) 875-6700

Kevin P.B. Johnson (Bar No. 177129
kevinjohnson@quinnemanuel.com
Victoria F. Maroulis (Bar No. 202603)
victoriamaroulis@quinnemanuel.com
555 Twin Dolphin Drive, 5
th
Floor
Redwood Shores, California 94065-2139
Telephone: (650) 801-5000
Facsimile: (650) 801-5100

William C. Price (Bar No. 108542)
williamprice@quinnemanuel.com
Michael T. Zeller (Bar No. 196417)
michaelzeller@quinnemanuel.com
865 S. Figueroa St., 10th Floor
Los Angeles, California 90017
Telephone: (213) 443-3000
Facsimile: (213) 443-3100

Attorneys for SAMSUNG ELECTRONICS CO.,
LTD., SAMSUNG ELECTRONICS AMERICA,
INC. and SAMSUNG

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION
APPLE INC., a California corporation,

Plaintiff,

vs.

SAMSUNG ELECTRONICS CO., LTD., a
Korean business entity; SAMSUNG
ELECTRONICS AMERICA, INC., a New
York corporation; SAMSUNG
TELECOMMUNICATIONS AMERICA,
LLC, a Delaware limited liability company,

Defendants.

CASE NO. 11-cv-01846-LHK (PSG)

DECLARATION OF ROBERT J.
BECHER IN SUPPORT OF SAMSUNGS
MOTION TO STRIKE PORTIONS OF
THE EXPERT REPORT OF JULIE L.
DAVIS

Case5:11-cv-01846-LHK Document2386-1 Filed08/30/13 Page1 of 4
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02198.51855/5494303.2
-1-
JULIE L. DAVIS
I, Robert J. Becher, declare as follows:
1. I am a partner in the law firm of Quinn Emanuel Urquhart & Sullivan, LLP,
counsel for Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., and Samsung
Telecommunications America, LLC (collectively, Samsung). I submit this declaration in
support of Samsungs Motion to Strike Portions of the Expert Report of Julie L. Davis (Motion
to Strike). I have personal knowledge of the facts set forth in this declaration and, if called
upon as a witness, I could and would testify to such facts under oath.
2. Attached hereto as Exhibit 1 is a true and correct copy of the Expert Report of
Julie L. Davis, CPA (as of 8/23/2013) (Davis Report), including exhibits. The copy of the
Davis Report has been highlighted in yellow to show the material that Samsung is moving to
strike. The highlighting in Exhibit 32-S2 and Exhibit 33-S2 appears in the original and those
exhibits are not subject to Samsungs Motion to Strike.
3. Attached hereto as Exhibit 2 is a true and correct copy of the March 22, 2012
Expert Report of Terry L. Musika, C.P.A., including exhibits.
4. Attached hereto as Exhibit 3 is a true and correct copy of the May 8, 2012
Supplemental Expert Report of Terry L. Musika, C.P.A., including exhibits.
5. Attached hereto as Exhibit 4 is a true and correct copy of excerpts from the
Transcript of Proceedings in this action, dated April 29, 2013.
deposition transcript of Julie L. Davis, dated August 26, 2013.
Transcript of Proceedings in this action, dated August 21, 2013.
8. Attached hereto as Exhibit 7 is a redline comparison of the characterizations of
Apple patents-in-suit offered in the Davis Report and the Musika Report.
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02198.51855/5494303.2
-2-
JULIE L. DAVIS

I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.
Executed on August 30, 2013, at Los Angeles, California.
/s/ Robert J. Becher
Robert J. Becher

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02198.51855/5494303.2
-3-
JULIE L. DAVIS
GENERAL ORDER ATTESTATION

I, Victoria Maroulis, am the ECF user whose ID and password are being used to file the
foregoing document. I hereby attest pursuant to General Order 45.X.B. that concurrence in the
electronic filing of this document has been obtained from Robert J. Becher.

/s/ Victoria Maroulis

EXHIBIT 1
FILED UNDER SEAL


EXHIBIT 2
FILED UNDER SEAL


EXHIBIT 3
FILED UNDER SEAL


EXHIBIT 4

1 of 23 sheets Page 1 to 4 of 91 05/03/2013 12:52:56 AM
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UNI TED STATES COURT REPORTERS
1
UNI TED STATES DI STRI CT COURT
NORTHERN DI STRI CT OF CALI FORNI A
SAN J OSE DI VI SI ON
APPLE I NC. , A CALI FORNI A
CORPORATI ON,
PLAI NTI FF,
VS.
SAMSUNG ELECTRONI CS CO. , LTD. ,
A KOREAN BUSI NESS ENTI TY;
SAMSUNG ELECTRONI CS AMERI CA,
I NC. , A NEWYORK CORPORATI ON;
SAMSUNG TELECOMMUNI CATI ONS
AMERI CA, LLC, A DELAWARE
LI MI TED LI ABI LI TY COMPANY,
DEFENDANTS.

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C- 11- 01846 LHK
SAN J OSE, CALI FORNI A
APRI L 29, 2013
PAGES 1- 90
TRANSCRI PT OF PROCEEDI NGS
BEFORE THE HONORABLE LUCY H. KOH
UNI TED STATES DI STRI CT J UDGE
APPEARANCES ON NEXT PAGE
OFFI CI AL COURT REPORTER: LEE- ANNE SHORTRI DGE, CSR, CRR
CERTI FI CATE NUMBER 9595
PROCEEDI NGS RECORDED BY MECHANI CAL STENOGRAPHY
TRANSCRI PT PRODUCED WI TH COMPUTER
2
1
A P P E A R A N C E S: 2
FOR PLAINTIFF MORRISON & FOERSTER 3
APPLE: BY: MICHAEL A. JACOBS
NATHANIEL B. SABRI 4
425 MARKET STREET
SAN FRANCISCO, CALIFORNIA 94105 5
BY: ERIK J. OLSON 6
755 PAGE MILL ROAD
PALO ALTO, CALIFORNIA 94304 7
8
FOR COUNTERCLAIMANT WILMER, CUTLER, PICKERING,
APPLE: HALE AND DORR 9
BY: WILLIAM F. LEE
60 STATE STREET 10
BOSTON, MASSACHUSETTS 02109
11
BY: MARK D. SELWYN
LAUREN FLETCHER 12
950 PAGE MILL ROAD
PALO ALTO, CALIFORNIA 94304 13
14
FOR THE DEFENDANT: QUINN, EMANUEL, URQUHART, 15
OLIVER & HEDGES
BY: WILLIAM C. PRICE 16
MICHAEL T. ZELLER
SCOTT B. KIDMAN 17
865 SOUTH FIGUEROA STREET
10TH FLOOR 18
LOS ANGELES, CALIFORNIA 90017
19
BY: KATHLEEN M. SULLIVAN
51 MADISON AVENUE, 22ND FLOOR 20
NEW YORK, NEW YORK 10022
21
BY: VICTORIA F. MAROULIS
555 TWIN DOLPHIN DRIVE 22
SUITE 560
REDWOOD SHORES, CALIFORNIA 94065 23
24
25
UNITED STATES COURT REPORTERS
3
SAN JOSE, CALIFORNIA APRIL 29K, 2013 1
P R O C E E D I N G S 2
(COURT CONVENED AND THE FOLLOWING PROCEEDINGS WERE HELD:) 00:-01 3
THE CLERK: CALLING CASE NUMBER C-11-01846 LHK, 00:-01 4
APPLE, INCORPORATED VERSUS SAMSUNG ELECTRONICS COMPANY LIMITED, 00:-01 5
ET AL. 00:-01 6
MR. JACOBS: MICHAEL JACOBS FROM MORRISON & FOERSTER. 00:-01 7
WITH ME ARE ERIC OLSON AND NATHAN SABRI FOR APPLE, YOUR HONOR. 00:-01 8
MR. LEE: GOOD AFTERNOON, YOUR HONOR. BILL LEE, 00:-01 9
MARK SELWYN, AND LAUREN FLETCHER FROM WILMER, HALE FROM APPLE. 00:-01 10
THE COURT: OKAY. I'M SORRY. I DIDN'T EVEN CATCH 00:-01 11
THE PEOPLE WITH MR. JACOBS. 00:-01 12
ERIC OLSON, YOU SAID, AND WHO ELSE? 00:-01 13
MR. JACOBS: NATHAN SABRI, YOUR HONOR, S-A-B-R-I. 00:-01 14
THE COURT: OKAY. THANK YOU. 00:00 15
AND THEN MR. LEE, OKAY. 00:00 16
MR. LEE: MARK SELWYN, YOUR HONOR. 00:00 17
THE COURT: OKAY. 00:00 18
MR. LEE: AND LAUREN FLETCHER, F-L-E-T-C-H-E-R. 00:00 19
MR. PRICE: GOOD AFTERNOON, YOUR HONOR. BILL PRICE 00:00 20
WITH QUINN, EMANUEL FOR SAMSUNG. 00:00 21
AND WITH ME AT COUNSEL TABLE ARE KATHLEEN SULLIVAN, 00:00 22
SCOTT KIDMAN, WHO PROBABLY WON'T BE SPEAKING, MICHAEL ZELLER, 00:00 23
AND VICTORIA MAROULIS. 00:00 24
THE COURT: OKAY. GOOD AFTERNOON. 00:00 25
4
MR. PRICE: GOOD AFTERNOON. 00:00 1
THE COURT: OKAY. I HAVE A FEW QUESTIONS, BUT I'M 00:00 2
OTHERWISE READY TO RULE ON EVERYTHING. 00:00 3
LET ME JUST ASK THE FEW QUESTIONS FIRST. SO WHEN IS THE 00:00 4
PTO LIKELY TO ISSUE A RE-EXAM CERTIFICATE FOR THE '381 AND THE 00:00 5
'915 PATENTS? 00:00 6
MR. JACOBS: BY ISSUING A RE-EXAMINATION CERTIFICATE, 00:00 7
YOUR HONOR, I THINK YOUR HONOR IS ASKING WHEN IS THIS GOING TO 00:00 8
BE OVER. 00:00 9
THE COURT: AS FAR AS THE PTO. 00:00 10
MR. JACOBS: AS FAR AS THE PTO. 00:00 11
THE COURT: I DON'T CARE ABOUT THE APPEALS BOARD. I 00:00 12
DON'T CARE ABOUT THE APPELLATE CIRCUIT. WHEN IS THE PTO GOING 00:00 13
TO BE OVER? 00:00 14
MR. JACOBS: THE PTO'S ROLE -- LET ME CHECK AND MAKE 00:00 15
SURE I HAVE THE RIGHT ANSWER. I BELIEVE THE ANSWER IS NOT TOO 00:00 16
FAR AWAY, BUT SUBJECT TO THOSE APPEALS, ET CETERA. 00:00 17
THE COURT: SO MARCH 29TH, 2013 IS WHEN THE PTO 00:00 18
ISSUED THE FINAL OFFICE ACTION IN THE '381? 00:00 19
MR. JACOBS: YES. 00:00 20
THE COURT: AND WHAT IS IT THAT YOU ARE FILING ON 00:00 21
MAY 29TH OF 2013? 00:00 22
MR. JACOBS: MAY I HAVE A MOMENT, YOUR HONOR? 00:00 23
MS. MAROULIS: I'M SORRY, YOUR HONOR. IS THE 00:00 24
QUESTION WHAT IS BEING FILED ON MAY 29TH? 00:00 25
57
AND I DON'T CARE IF THEY DON'T ARGUE IT, THE JURY IS VERY 01:10 1
LIKELY TO THINK, "OH, WOW, AN ECONOMIST. I MEAN, THAT'S A 01:10 2
SIGNIFICANT POSITION. I MEAN, I'VE GOT A C.P.A. WHO DOES MY 01:10 3
TAXES." 01:11 4
SO THIS IS REALLY TRYING TO CHANGE, YOU KNOW, THE NATURE OF 01:11 5
THIS TRIAL ON DAMAGES. 01:11 6
THE COURT: IF APPLE GETS A NEW EXPERT, I'LL ALLOW 01:11 7
SAMSUNG TO GET A NEW EXPERT ON DAMAGES. 01:11 8
MR. PRICE: AND BECAUSE OF THE EXPERTISE, WE WOULD 01:11 9
PROBABLY NEED DISCOVERY. SO ONE THING WE MIGHT DO IS WAIT 01:11 10
UNTIL WE FIND OUT EXACTLY WHAT APPLE IS UP TO HERE, WHAT'S IN 01:11 11
THEIR REPORT, WHO'S THE EXPERT, YOU KNOW, HOW IS THIS GOING TO 01:11 12
CHANGE? 01:11 13
THE COURT: YOU KNOW WHAT? YOU KNOW WHAT? I THINK 01:11 14
YOU ALL DON'T UNDERSTAND HOW CLOSE YOU ARE NOT TO GETTING A 01:11 15
TRIAL. OKAY? 01:11 16
DO YOU KNOW HOW MANY TRIALS I'LL HAVE IN APPLE'S CASES NEXT 01:11 17
YEAR? SHOULD I JUST REMIND YOU? SO WE HAVE APPLE II MARCH 31 01:11 18
THROUGH APRIL 25; I HAVE THE IN RE: HIGH TECH TRIAL IN WHICH 01:11 19
APPLE IS ONE OF THE SEVEN DEFENDANTS, THAT'S SET FOR TRIAL 01:11 20
MAY 27TH THROUGH JULY 17TH; THE MDL PRIVACY CASE AGAINST APPLE 01:11 21
IS AUGUST 4TH THROUGH AUGUST 18TH OF 2014. 01:11 22
OKAY? SO YOU HAVE GOTTEN A LOT OF DUE PROCESS IN THIS 01:11 23
COURT. I'M ASKING YOU TO KEEP IT NARROW, NO NEW THEORIES, NO 01:12 24
NEW CALCULATIONS. 01:12 25
58
BUT YOUR SAYING, "NO, NOW WE'RE GOING TO REDO THE COSTS 01:12 1
WHICH THEY DIDN'T DO REALLY DURING THE LAST TRIAL" IS ALREADY 01:12 2
SIGNALLING TO ME WHAT IS GOING TO HAPPEN. 01:12 3
SO I WAS GOING TO GIVE YOU A TRIAL DATE TODAY, BUT NOW I'M 01:12 4
NOT GOING TO. 01:12 5
MR. JACOBS: YOUR HONOR, WE -- 01:12 6
THE COURT: WE CAN SET THIS FOR A FURTHER CMC AFTER 01:12 7
YOU DISCLOSE YOUR EXPERT AND THEN I'LL DECIDE AT THAT POINT 01:12 8
WHETHER I WANT TO TRY THIS CASE AND WHEN. OKAY? THAT IS 01:12 9
WITHIN MY DISCRETION. OKAY? 01:12 10
SO WHEN SHOULD WE COME BACK FOR A CMC? I'M NOT GOING TO 01:12 11
GIVE YOU A TRIAL DATE TODAY. 01:12 12
MR. JACOBS: YOUR HONOR, WE NEED -- I'M SORRY. 01:12 13
WE'RE -- I REALLY AM TRYING TO MEET THE COURT'S OBJECTIVES 01:12 14
HERE. 01:12 15
THE POINT OF RETAINING SOME FLEXIBILITY ON WHO WOULD 01:12 16
TESTIFY WAS TO MAKE SURE OUR EXPERT WOULD BE AVAILABLE WHEN WE 01:12 17
HAVE A TRIAL DATE, SO THERE IS A KIND OF -- THERE IS, 01:12 18
REGRETTABLY, A CART BEFORE THE HORSE PROBLEM HERE. 01:12 19
THE COURT: OKAY. BUT WHAT YOU SAID ABOUT COSTS, 01:12 20
THAT IS A NEW ISSUE. 01:13 21
MR. JACOBS: NO, COST IS NOT -- NO, DEDUCTIBLE 01:13 22
EXPENSE IS NOT A NEW ISSUE AT ALL. MR. MUSIKA -- 01:13 23
THE COURT: OKAY. THEN WHY DO YOU HAVE TO REDO 01:13 24
EXPENSES? THE ONLY THING THAT WAS INCORRECT WAS THE NOTICE 01:13 25
59
DATE. THAT HAS NOTHING TO DO WITH EXPENSES OF APPLE. SO -- 01:13 1
MR. JACOBS: NO, NO, NOT APPLE EXPENSES. 01:13 2
THE COURT: SO WHY DOES THAT HAVE TO BE REDONE? 01:13 3
MR. JACOBS: SORRY. NOT APPLE EXPENSES, YOUR HONOR. 01:13 4
I'M SORRY I WASN'T CLEAR. 01:13 5
THE COURT: WHAT? 01:13 6
MR. JACOBS: YOUR HONOR, IGNORE -- FORGET THIS. WE 01:13 7
WILL HAVE A SINGLE -- 01:13 8
THE COURT: EXPENSES OF WHAT? 01:13 9
MR. JACOBS: OF SAMSUNG'S DEDUCTIBLE -- RECALL THAT A 01:13 10
MAJOR ISSUE AT TRIAL FOR INFRINGER'S PROFITS WAS WHETHER WHAT 01:13 11
SAMSUNG HAD CATEGORIZED AS GNA KINDS OF EXPENSES WAS, IN FACT, 01:13 12
DIRECTLY ATTRIBUTABLE TO THE SPECIFIC PRODUCTS. AND THAT'S 01:13 13
WHAT THE INSTRUCTION SAYS. IT SAYS DIRECTLY ATTRIBUTABLE. 01:13 14
IN THE NEW TRIAL, BOTH SIDES WILL BE ARGUING THAT ISSUE 01:13 15
AGAIN TO THE JURY. WE HAVE TO ARGUE THAT ISSUE TO THE JURY. 01:13 16
WE CAN'T NOT ARGUE THAT ISSUE TO THE JURY. 01:13 17
AND OUR WITNESS WILL SAY THAT WHAT SAMSUNG IS PRESENTING TO 01:13 18
THE JURY AS DEDUCTIBLE EXPENSES ARE, IN FACT, NOT DIRECTLY 01:13 19
ATTRIBUTABLE. 01:14 20
THE COURT: BUT WHAT DOES THAT HAVE TO DO WITH THE 01:14 21
NOTICE DATE? THAT IS THE PIECE THAT I'M MISSING. 01:14 22
MR. PRICE: THAT HAS NOTHING TO DO WITH THE NOTICE 01:14 23
DATE. 01:14 24
THIS HAS TO DO WITH WHAT THE INFRINGER'S PROFITS ARE. 01:14 25
60
I MEAN, THERE WAS A HUGE DIFFERENCE IN NUMBERS BETWEEN 01:14 1
THEIR EXPERT AND OURS BECAUSE MR. WAGNER DEDUCTED COSTS. 01:14 2
AND NOW WE'RE HEARING THAT THEY'RE GOING TO, YOU KNOW, HAVE 01:14 3
TWO EXPERTS. 01:14 4
THE COURT: GET A DO-OVER. 01:14 5
MR. JACOBS: WE'LL HAVE A SINGLE EXPERT. 01:14 6
THE COURT: YOU'LL GET A DO-OVER ON EXPENSES. I 01:14 7
UNDERSTAND. 01:14 8
FORGET IT THEN. NO TRIAL DATE. WE'LL SET ANOTHER CMC. 01:14 9
I'M TRYING TO CONVEY HOW SERIOUS I AM THAT THIS NEEDS -- 01:14 10
I'M NOT GOING TO LET YOU GET A DO-OVER. YOU ARE NOT GOING TO 01:14 11
BE ABLE TO RAISE NEW THEORIES IN THIS CASE. 01:14 12
MR. JACOBS: IT'S NOT A NEW THEORY, YOUR HONOR. IT'S 01:14 13
RIGHT IN MR. MUSIKA'S REPORT. 01:14 14
THE COURT: WHAT IS THE DIFFERENCE OF A CORRECTED 01:14 15
NOTICE DATE ON EXPENSES? YOU HAVE NOT BEEN ABLE TO ARTICULATE 01:14 16
WHAT IS THE CONNECTION THERE. HOW DOES A NOTICE DATE OF 01:14 17
APRIL 15TH AFFECT THE EXPENSE? 01:14 18
MR. JACOBS: WHAT I THINK -- LET ME -- WE'VE THOUGHT 01:15 19
ABOUT THIS, YOUR HONOR, AND IF YOU JUST GIVE ME A MINUTE HERE, 01:15 20
I THINK I CAN INTERPRET IN OUR LEGAL FRAMEWORK WHAT THE COURT 01:15 21
IS SAYING. 01:15 22
WHAT THE COURT IS SAYING IS THE JURY -- THE COURT BELIEVES 01:15 23
THAT THE JURY MADE A FINDING ON DEDUCTIBLE EXPENSES AND AWARDED 01:15 24
US A PERCENTAGE OF OUR SOUGHT AFTER LOST PROFITS. 01:15 25
05/03/2013 12:52:56 AM Page 61 to 64 of 91 16 of 23 sheets
61
AND WHAT THE COURT IS, IN ESSENCE, PROPOSING IS THAT WE 01:15 1
HAVE A NEW TRIAL LIMITED TO THE REVERSE ENGINEERING OF THE 01:15 2
PRIOR JURY VERDICT AS IT RELATES TO DEDUCTIBLE EXPENSES. 01:15 3
THE COURT WOULD BE, IN EFFECT, TAKING THE REVERSE 01:15 4
ENGINEERING AND MAKING IT, THAT PERCENTAGE, A KIND OF A LAW OF 01:15 5
THE CASE. 01:15 6
THE COURT: NO, NO, NO. I'M ASKING YOU TO EXPLAIN, 01:15 7
WHAT IS THE RELATION BETWEEN A NEW NOTICE DATE TO EXPENSES? 01:15 8
MR. JACOBS: THERE IS NO -- 01:15 9
THE COURT: WHAT IS THAT RELATIONSHIP? WHY DOES A 01:15 10
NEW NOTICE DATE NECESSITATE A NEW ANALYSIS AND A NEW 01:15 11
CALCULATION ON EXPENSES? THAT'S WHAT I DON'T UNDERSTAND. 01:15 12
MR. JACOBS: BECAUSE THE ONLY WAY YOU COULD NOT DO 01:15 13
THAT IS TO ACCEPT SOME PRIOR ADJUDICATION OF WHAT THE PROPER 01:15 14
DEDUCTIBLE EXPENSES WERE, AND THE COURT ACCEPTED SAMSUNG'S 01:16 15
ARGUMENT ON THIS POINT FOR PURPOSES OF DECIDING WHETHER THE 01:16 16
JURY'S AWARD WAS EXCESSIVE. 01:16 17
BUT TO NOW TURN THAT REVERSE ENGINEERING INTO A RESTRICTION 01:16 18
IN THE NEW DAMAGES TRIAL IS TO TAKE THAT REVERSE ENGINEERING 01:16 19
WAY, WAY, WAY TOO FAR. 01:16 20
THERE'S NO RELATIONSHIP, AS SUCH, BETWEEN THE NEW NOTICE 01:16 21
DATE -- 01:16 22
THE COURT: I GUESS I DON'T UNDERSTAND. WHY DO YOU 01:16 23
HAVE TO GIVE NEW CALCULATIONS ON EXPENSES? 01:16 24
MR. JACOBS: WE WILL NOT GIVE NEW CALCULATIONS ON 01:16 25
62
EXPENSES. 01:16 1
WE WILL SIMPLY ARGUE THAT -- OUR DAMAGES EXPERT WILL ARGUE 01:16 2
THAT SAMSUNG'S ASSIGNMENT IS INCORRECT, JUST AS IT DID IN THE 01:16 3
FIRST TRIAL. 01:16 4
THE COURT: THAT'S NOT WHAT YOU SAID. YOU SAID YOU 01:16 5
NEED TO GET SOMEONE TO SUPPLEMENT DR. VELLTURO FROM INVOTEX -- 01:16 6
MR. JACOBS: YES. 01:16 7
THE COURT: -- TO REDO THE CALCULATION EXPENSES. 01:16 8
MR. JACOBS: NO. I'M SORRY. IF I SAID THAT, I 01:16 9
MISSPOKE. 01:16 10
WE'RE NOT GOING TO REDO THE CALCULATIONS. IT'S THE SAME 01:16 11
CALCULATION OF DEDUCTIBLE EXPENSES. 01:16 12
AND WE'LL HAVE A SINGLE EXPERT, YOUR HONOR. WE WILL NOT GO 01:17 13
WITH TWO EXPERTS. WE'LL FIGURE OUT HOW TO HANDLE THAT 01:17 14
DEDUCTIBLE EXPENSE ISSUE WITHOUT HAVING AN ADDITIONAL EXPERT. 01:17 15
MR. PRICE: AND THEN THE QUESTION IS, IS THAT 01:17 16
ADDITIONAL EXPERT GOING TO BE AN ECONOMIST SO THEY CAN NOW PUT 01:17 17
AN ECONOMIST BEFORE THE JURY AND TRUMP US ON QUALIFICATIONS? 01:17 18
OR IS IT GOING TO BE WHAT IT WAS BEFORE, WHICH IS A C.P.A.? 01:17 19
THE COURT: IT NEEDS TO BE A C.P.A. OTHERWISE IF 01:17 20
THEY GET AN ECONOMIST, YOU'LL GET AN ECONOMIST, IT'LL REOPEN 01:17 21
DISCOVERY AND I WILL NOT SET THIS TRIAL. I WON'T SET THE TRIAL 01:17 22
DATE. 01:17 23
I MEAN, NOT EVERY JUDGE TRIES A CASE IN 14 MONTHS LIKE I 01:17 24
DID THE FIRST ONE. I AM NOT GOING TO GIVE YOU A TRIAL DATE. 01:17 25
63
IF YOU ARE UNREASONABLE AND TAKE NO CONSIDERATION OF THE 01:17 1
COURT'S RESOURCES, THEN YOU DESERVE TO HAVE THAT KIND OF -- 01:17 2
MR. JACOBS: WE ARE -- 01:17 3
THE COURT: -- THAT KIND OF TRIAL DATE WHICH IS GOING 01:17 4
TO BE MUCH, MUCH LATER. 01:17 5
I ALREADY TOLD YOU, I WILL BE IN TRIAL ON APPLE CASES FOR 01:17 6
ABOUT SIX, SEVEN MONTHS NEXT YEAR. OKAY? 01:17 7
SO IF YOU'RE ASKING ME TO GIVE YOU YET ONE MORE TRIAL, THEN 01:17 8
I'M ASKING YOU TO KEEP THIS VERY LIMITED AND NARROW. NO NEW 01:17 9
THEORIES. NO NEW NUMBERS. NO NEW PRODUCTS. NO NEW METHODS. 01:18 10
KEEP THIS NARROW SO THAT WE CAN LIMIT THIS SO THAT WE'RE 01:18 11
NOT REOPENING AND HAVING THE SAME NIGHTMARE WE'VE HAD 01:18 12
PREVIOUSLY. 01:18 13
MR. JACOBS: WE WILL STIPULATE THAT THE -- WE -- IF 01:18 14
ALL OF US AGREE, WE CAN QUALIFY MR. VELLTURO AS AN ACCOUNTANT 01:18 15
EVEN THOUGH HE ISN'T. 01:18 16
I MEAN, IF THAT'S REALLY SAMSUNG'S WORRY, SAMSUNG COULD 01:18 17
SIMPLY STIPULATE TO HIS QUALIFICATIONS AND WE WON'T UTTER THE 01:18 18
WORD THAT HE'S AN ECONOMIST IF THAT'S WHAT THIS IS ALL ABOUT. 01:18 19
MR. PRICE: HERE'S -- 01:18 20
MR. JACOBS: IF THEY WILL STIPULATE THAT HE'S 01:18 21
QUALIFIED TO TESTIFY, WE'LL GO THROUGH HIS CREDENTIALS WITHOUT 01:18 22
MENTIONING THAT HE'S A PH.D. ECONOMIST OR WHATEVER HE IS. 01:18 23
MR. PRICE: THAT'S THE FUNNY THING. HE'S NOT 01:18 24
QUALIFIED TO GIVE THE OPINION THEY WANT HIM TO GIVE. 01:18 25
64
MR. JACOBS: NOW THAT'S A DIFFERENT -- 01:18 1
MR. PRICE: IF THE FIRST TRIAL, IT WAS AN OPINION BY 01:18 2
A C.P.A. ABOUT WHAT DEDUCTIBLE COSTS WERE, HUGE ISSUE, HOW TO 01:18 3
GET THESE THINGS, AND MR. JACOBS JUST SAID, "WE NEED TO BRING 01:18 4
IN AN ACCOUNTANT TO SUPPLEMENT VELLTURO BECAUSE VELLTURO IS NOT 01:19 5
QUALIFIED" -- 01:19 6
THE COURT: OKAY. I'M SORRY. 01:19 7
YOU HAVE YOUR CLIENT HERE. ASK IF YOU'RE GOING TO INSIST 01:19 8
ON AN ECONOMIST, OKAY? 01:19 9
IF YOU INSIST ON AN ECONOMIST, THEN I'M GOING TO GIVE 01:19 10
SAMSUNG THE OPPORTUNITY TO SELECT AN ECONOMIST AND WE WILL 01:19 11
REOPEN DISCOVERY. OKAY? 01:19 12
MR. JACOBS: GIVE ME A MINUTE, YOUR HONOR. 01:19 13
THE COURT: GO AHEAD. 01:19 14
(PAUSE IN PROCEEDINGS.) 01:19 15
MR. JACOBS: AGREED, YOUR HONOR. OUR SUBSTITUTE 01:19 16
EXPERT FOR TERRY MUSIKA WILL BE A C.P.A. 01:19 17
THE COURT: OKAY. NOW, MR. PRICE, WHAT'S YOUR 01:19 18
RESPONSE TO THAT? 01:19 19
MR. PRICE: WELL, I GUESS THE RESPONSE IS WE -- 01:19 20
WHOOPS, SORRY. -- IS THAT WE NEED TO KNOW WHO, WE NEED TO KNOW 01:19 21
WHAT THEIR OPINION IS GOING TO BE AND, YOU KNOW, WHETHER -- 01:20 22
IT'S AMAZING WE'RE HERE AND WE DON'T KNOW WHO. I DON'T 01:20 23
UNDERSTAND WHY WE'RE HERE AND WE DON'T KNOW WHO. 01:20 24
MR. JACOBS: WE TOLD THEM AMONG WHOM IT COULD BE, 01:20 25
65
YOUR HONOR. I THINK THIS HAS NOW TURNED INTO A GRAVER ISSUE. 01:20 1
THE COURT: WELL, I HAVEN'T HEARD. I'VE HEARD 01:20 2
DR. VELLTURO AND MAYBE SOMEBODY FROM INVOTEX. 01:20 3
MR. JACOBS: WELL, NOW WE'RE GOING TO FIND A C.P.A., 01:20 4
YOUR HONOR, BECAUSE -- AND THE BEST C.P.A., THE MOST EFFECTIVE 01:20 5
TRIAL WITNESS THAT CAN TESTIFY ON THE DATE THAT YOU SET FOR A 01:20 6
NEW TRIAL, THAT'S WHAT WE'RE GOING TO GO OUT AND FIND, AND WHO 01:20 7
CAN ADOPT MR. MUSIKA'S REPORT WITH VARIATIONS ONLY -- AS 01:20 8
LIMITED -- 01:20 9
THE COURT: CAREFUL. 01:20 10
MR. JACOBS: AS LIMITED VARIATIONS AS POSSIBLE. 01:20 11
THE COURT: I'M NOT GOING TO ALLOW ANY VARIATIONS 01:20 12
OTHER THAN THE NOTICE DATE. I'M NOT GOING TO ALLOW ANY OTHER 01:20 13
VARIATIONS OTHER THAN THE NOTICE DATE. I -- IS THAT CLEAR? 01:20 14
MR. JACOBS: THAT SOUNDS LIKE A RULING. WE'LL TAKE 01:20 15
IT AS A RULING. 01:20 16
THE COURT: THAT IS A RULING. 01:20 17
MR. JACOBS: WE'LL TAKE IT AS SUCH. 01:20 18
THE COURT: THERE ARE NO VARIATIONS OTHER THAN THE 01:20 19
NOTICE DATE. THIS IS JUST REDOING THE LAST TRIAL ON THIS ONE 01:21 20
LIMITED ISSUE. 01:21 21
MS. MAROULIS: YOUR HONOR, THERE ARE SOME ISSUES THAT 01:21 22
WILL COME UP REGARDLESS OF WHAT THE REPORT LOOKS LIKE, AND AT 01:21 23
LEAST TWO OF THEM ARE THIS: 01:21 24
A NEW PERSON MIGHT BE SUBJECT TO DAUBERT CHALLENGE FOR 01:21 25
66
THEIR QUALIFICATIONS, THAT'S ONE. 01:21 1
THE SECOND ONE WE FLAGGED IN OUR PAPERS, WHICH IS THE 01:21 2
PRODUCTS THAT YOUR HONOR ENTERED THE FINAL ORDER ON, THOSE ARE 01:21 3
THE LOST PROFITS THEORIES. THEY ACTUALLY KNOW -- THE JURY 01:21 4
WOULD KNOW LOST PROFITS FOR THE PRODUCTS THAT ARE GOING TO NEW 01:21 5
TRIAL POTENTIALLY, SO WE SHOULD BE ABLE TO BRIEF THAT AND 01:21 6
EXPLAIN WHY APPLE MAY OR MAY NOT BRING THAT THEORY FORWARD. 01:21 7
SO WHEN YOUR HONOR SAYS WE'LL BE LIMITED TO EVERYTHING LIKE 01:21 8
IN THE OLD CASE, WE WANT TO MAKE SURE IT'S CLEAR THAT THE 01:21 9
MOTION PRACTICE MIGHT BE DIFFERENT AND THERE WILL BE MOTIONS 01:21 10
COMING FORWARD, EVEN IF THE REPORT IS VERY SIMILARLY HUED TO 01:21 11
THE OLD REPORT. 01:21 12
MR. JACOBS: YOUR HONOR, THIS IS -- 01:21 13
THE COURT: WAIT. CAN I -- CAN YOU -- I'M SORRY. I 01:21 14
DIDN'T UNDERSTAND WHAT YOU WERE SAYING ABOUT THE AVAILABLE 01:21 15
REMEDIES. 01:22 16
MS. MAROULIS: YOUR HONOR, THE JURY REJECTED THE 01:22 17
FINDING OF LOST PROFITS AS TO THE PRODUCTS THAT YOUR HONOR 01:22 18
DESIGNATED FOR A NEW TRIAL. 01:22 19
SO SAMSUNG SHOULD BE ABLE TO SEEK EXCLUSION OF LOST PROFITS 01:22 20
THEORIES IF WE SEE IT IN THE NEW REPORT, BECAUSE WE DON'T KNOW 01:22 21
WHAT WE'LL SEE IN APPLE'S EXPERT REPORT. 01:22 22
MR. JACOBS: THAT'S AN INFERENCE, YOUR HONOR. 01:22 23
IT'S -- THIS IS BACK TO THE POINT ABOUT HOW MUCH WE TAKE 01:22 24
THIS REVERSE ENGINEERING OF THE VERDICT AND TURN IT INTO LAW OF 01:22 25
67
THE CASE. WE BELIEVE THAT WOULD BE LEGAL ERROR. 01:22 1
IT'S ONE THING TO LOOK AT -- WE DISAGREE WITH THE REVERSE 01:22 2
ENGINEERING THAT WAS DONE, BUT IT'S ONE THING TO DO THAT AND 01:22 3
AWARD A NEW TRIAL. 01:22 4
IT'S ANOTHER THING TO SAY, "WELL, I LOOK AT THIS JURY AND 01:22 5
THE JURY COULDN'T POSSIBLY HAVE AWARDED LOST PROFITS BASED ON 01:22 6
THIS NUMBER; THEREFORE, APPLE IS PRECLUDED FROM SEEKING LOST 01:22 7
PROFITS IN THE NEW TRIAL." 01:22 8
THE COURT: WELL, I AGREE WITH THAT. WE'RE REDOING 01:22 9
LAST YEAR'S TRIAL. 01:22 10
THAT DOESN'T MEAN THAT A THEORY THAT WAS PRESENTED TO LAST 01:22 11
YEAR'S JURY CANNOT BE PRESENTED IN A NEW TRIAL. SO THAT 01:22 12
REQUEST IS GOING TO BE DENIED. 01:23 13
MS. MAROULIS: YOUR HONOR, THE PRIOR JURY REJECTED 01:23 14
THAT, THE LOST PROFITS AS TO THESE SET OF PRODUCTS. 01:23 15
THE COURT: I HEAR YOU, AND THE NEXT JURY MAY, TOO. 01:23 16
BUT I'M JUST SAYING, I'M GOING TO ALLOW -- WHATEVER 01:23 17
THEORIES EITHER SIDE PRESENTED TO THE LAST JURY CAN BE 01:23 18
PRESENTED TO THIS JURY. 01:23 19
YOU CAN -- YOU CAN PRESENT LESS IF YOU WANT TO, BUT YOU 01:23 20
CANNOT PRESENT MORE. OKAY? 01:23 21
WHAT -- I UNDERSTAND ON DAUBERT ON QUALIFICATIONS. I 01:23 22
WOULD -- 01:23 23
MR. JACOBS: IT'S NOT REALLY DAUBERT, YOUR HONOR. 01:23 24
IT'S A -- DAUBERT IS METHODOLOGY AND I THINK WE'VE PASSED ALL 01:23 25
68
THE METHODLOGICAL CHALLENGES. 01:23 1
I THINK THAT'S ONE OF THE BENEFITS THAT WE'RE ACCRUING FROM 01:23 2
YOUR HONOR'S DIRECTION TO US IS WE WILL NOT HAVE DAUBERTS 01:23 3
BECAUSE DAUBERTS WERE DONE, AND DONE TO A FARE-THEE-WELL, LAST 01:23 4
YEAR. 01:23 5
IF THEY WANT TO CHALLENGE -- HAVING COERCED US INTO A 01:23 6
C.P.A. AND NOW SAYING, "OH, THE C.P.A. IS NOT QUALIFIED," FINE. 01:23 7
THE COURT: ALL RIGHT. WELL, WHAT ABOUT A -- THIS IS 01:23 8
WHAT I WAS GOING TO SUGGEST: HAVE APPLE'S EXPERT -- IDENTIFY 01:23 9
ITS NEW C.P.A. EXPERT, ONE PERSON, BY MAY 13TH. 01:24 10
MR. JACOBS: OKAY. 01:24 11
THE COURT: OKAY? APPLE SUBMIT -- I DON'T EVEN KNOW 01:24 12
IF YOU WOULD REALLY NEED ALL THESE DATES, OR ALL THIS TIME, BUT 01:24 13
I GUESS BECAUSE YOU'RE GETTING A NEW PERSON UP TO SPEED -- JUNE 01:24 14
24TH, WHICH IS I THINK THE DATE YOU REQUESTED. 01:24 15
MR. JACOBS: IT'S TWO DAYS BEFORE, BUT THAT'S FINE, 01:24 16
YOUR HONOR. 01:24 17
THE COURT: OKAY. SAMSUNG'S REPORT, JULY 26TH. YOU 01:24 18
REQUESTED, I THINK, 30 DAYS. 01:24 19
EXPERT DEPOSITIONS CONCLUDED BY AUGUST 7TH. 01:24 20
DOES THAT GIVE YOU ENOUGH TIME OR IS THAT TOO TIGHT? 01:24 21
MS. MAROULIS: THAT MIGHT BE TOO TIGHT, YOUR HONOR, 01:24 22
BECAUSE WE'LL ALSO HAVE EXPERT DISCOVERY IN THE FOLLOW-ON CASE. 01:24 23
THE COURT: OH, OKAY. WHAT ABOUT AUGUST 30TH? 01:24 24
AUGUST 23RD? 01:24 25
69
MS. MAROULIS: AUGUST 30TH, YOUR HONOR. 01:25 1
MR. JACOBS: I THINK THE 23RD IS PLENTY, YOUR HONOR. 01:25 2
THAT IS NEARLY A MONTH FOR EXPERT DEPOSITIONS. 01:25 3
THE COURT: OKAY. THEN I WAS GOING TO ALLOW ONLY 01:25 4
SAMSUNG, NOT APPLE, ONE NO MORE THAN FOUR-PAGE, LET'S CALL IT A 01:25 5
RULE 702 OBJECTION BASED ON QUALIFICATIONS ALONE. 01:25 6
BECAUSE EVERYONE IS JUST GOING TO BE USING THE THEORIES 01:25 7
THAT HAVE ALREADY GONE THROUGH EXTENSIVE MOTION PRACTICE LAST 01:25 8
YEAR, THERE WILL BE NO NEW CHALLENGES TO THEORIES. OKAY? 01:25 9
BUT IF YOU WANT TO CHALLENGE APPLE'S EXPERT ON WHETHER HE 01:25 10
OR SHE IS QUALIFIED TO GIVE THE OPINION, I THINK THAT IS 01:25 11
LEGITIMATE. OKAY? SO FOUR PAGES AT MOST. 01:25 12
MS. MAROULIS: THANK YOU, YOUR HONOR. 01:25 13
AND WE HAVE TO RESERVE OUR RIGHT TO CHALLENGE IF THEY 01:25 14
CHANGE THE REPORT SUBSTANTIALLY, WHICH THEY CLAIM RIGHT NOW 01:25 15
THEY WON'T. 01:25 16
THE COURT: OKAY. SO I WAS GOING TO SET A DATE FOR 01:25 17
THAT AS WELL. 01:25 18
NOW, I'M GOING TO SET A HEARING DATE. I WOULD LEAVE IT TO 01:26 19
THE PARTIES TO SET A BRIEFING SCHEDULE, ALTHOUGH I WANT FINAL 01:26 20
BRIEFS THREE WEEKS IN ADVANCE OF THE HEARING DATE. 01:26 21
BUT OCTOBER 10TH OF 2013 I WOULD HEAR THE ONE SAMSUNG 01:26 22
MOTION CHALLENGING THE QUALIFICATION SOLELY OF APPLE'S NEW 01:26 23
EXPERT AND ANY MOTIONS TO STRIKE FROM EITHER EXPERT REPORT. 01:26 24
NOW, LET'S PUT PAGE LIMITS ON THIS. AND I DON'T THINK I 01:26 25
70
NEED -- I CERTAINLY DON'T THINK I NEED A REPLY ON THE 702. 01:26 1
BUT WE'LL SAY THAT APPLE CAN FILE A FOUR-PAGE RESPONSE TO 01:26 2
SAMSUNG'S FOUR-PAGE OBJECTION TO THE QUALIFICATIONS OF YOUR NEW 01:26 3
EXPERT. NO REPLY ON THAT ONE. 01:26 4
MR. JACOBS: OKAY. THANK YOU. 01:26 5
THE COURT: NOW, MOTION TO STRIKE FROM EACH OTHER'S 01:26 6
EXPERT REPORTS, I WOULD -- CAN WE LIMIT THAT TO TEN PAGES? 01:26 7
MR. JACOBS: IS IT CLEAR, YOUR HONOR, THAT WE'RE 01:27 8
NOT -- 01:27 9
THE COURT: THERE REALLY SHOULDN'T BE ANYTHING. 01:27 10
MR. JACOBS: THERE SHOULDN'T BE ANYTHING. 01:27 11
THE COURT: IF EVERYONE FOLLOWS MY RULING OF NO NEW 01:27 12
THEORIES, NO NEW METHODOLOGIES, NO NEW DATA, NO NEW DAMAGES 01:27 13
PERIOD, THERE REALLY SHOULDN'T BE. 01:27 14
BUT I'M NOT TOTALLY OPTIMISTIC BASED ON MY EXPERIENCE WITH 01:27 15
THIS CASE OVER THE LAST TWO YEARS. 01:27 16
SO, I MEAN, I WOULD LIKE TO LIMIT THAT FURTHER, IF AT ALL 01:27 17
POSSIBLE, IN TERMS OF PAGE LIMITS. 01:27 18
AND I THINK A REPLY ACTUALLY MIGHT BE HELPFUL ON THAT 01:27 19
SCORE. 01:27 20
SO -- AND I ASSUME THAT THERE WILL PROBABLY BE 01:27 21
CROSS-MOTIONS WOULD BE MY GUESS. 01:27 22
MR. JACOBS: CAN IT BE CLEAR, YOUR HONOR, THAT THOSE 01:27 23
MOTIONS LITERALLY ONLY GO TO THE -- TO ANY DIFFERENCES? 01:27 24
THE COURT: YES, ANY DIFFERENCES FROM LAST TIME. 01:27 25
71
MR. JACOBS: SO WE'RE -- TO STATE IT AGAIN, THE 01:28 1
OBVERSE, WE ARE NOT GOING TO BE RELITIGATING MR. WAGNER'S OR 01:28 2
MR. MUSIKA'S REPORTS. 01:28 3
THE ONLY PROPER FOCUS OF ANY MOTIONS TO STRIKE WILL BE THE 01:28 4
INCREMENT, THE CHANGE IN THE NEW REPORTS? 01:28 5
THE COURT: YES. 01:28 6
MR. JACOBS: OKAY. 01:28 7
MS. MAROULIS: YOUR HONOR, IN TERMS OF PRESERVING THE 01:28 8
RECORD FOR APPEAL -- 01:28 9
THE COURT: YES. 01:28 10
MS. MAROULIS: -- WE MIGHT NEED TO SIMPLY STATE OR 01:28 11
RESTATE OUR PRIOR MOTIONS AND OBJECTIONS. WE'LL DOUBLE-CHECK 01:28 12
THAT. 01:28 13
MS. MAROULIS: BUT WE MIGHT HAVE TO, AT SOME POINT IN 01:28 15
THE HEARING OR IN WRITING, SIMPLY SAY THAT WE'RE RESTATING THEM 01:28 16
SO THAT THEY'RE NOT WAIVED, MUCH THE SAME WAY AS JURY 01:28 17
INSTRUCTIONS, YOU HAVE TO REPEAT IT MULTIPLE TIMES. 01:28 18
THE COURT: OKAY. THAT'S FINE. 01:28 19
I'M HOPING THAT YOU MAY JUST BE ABLE TO, YOU KNOW, PER 01:28 20
STIPULATION, BOTH PARTIES PRESERVE THE PREVIOUS OBJECTIONS THAT 01:28 21
THEY MADE TO METHODOLOGIES AND THEORIES AND CALCULATIONS OF THE 01:28 22
EXPERT, SOMETHING LIKE THAT. 01:28 23
BUT, YES, I DON'T WANT TO RELITIGATE -- ANYTHING THAT'S 01:28 24
ALREADY BEEN DECIDED AND HAS ALREADY SURVIVED A DAUBERT MOTION 01:28 25
72
OR A MOTION IN LIMINE WILL CONTINUE TO BE ADMISSIBLE AND PART 01:29 1
OF THE CASE. 01:29 2
SO LET'S SET LIMITS ON THAT IN TERMS OF PAGES. WHAT -- 01:29 3
MS. MAROULIS: TEN PAGES ON MOVING PAPERS, TEN PAGES 01:29 4
ON OPPOSITION, AND SEVEN ON REPLY? 01:29 5
THE COURT: WELL, I'M REALLY HOPING THAT IF -- IF MY 01:29 6
RULING AS TO THE SCOPE OF THE NEW EXPERT REPORTS IS FOLLOWED, 01:29 7
WE REALLY SHOULDN'T NEED -- 01:29 8
MR. JACOBS: SEVEN, SEVEN, FOUR, YOUR HONOR? 01:29 9
THE COURT: YOU KNOW, WE SHOULDN'T NEED 54 PAGES OF 01:29 10
BRIEFING ON THIS, RIGHT? 01:29 11
MR. JACOBS: SEVEN, SEVEN, FOUR? 01:29 12
THE COURT: SO YOU'RE NOT OPTIMISTIC, EITHER. 01:29 13
MR. JACOBS: NO, I AM. I JUST -- I DON'T THINK THIS 01:29 14
IS ABOUT PAGE LIMITS SO MUCH. I ACTUALLY THINK IT'S ABOUT 01:29 15
SCOPE, AND IF THERE ARE NEW ISSUES THAT ARISE, THEY SHOULD BE 01:29 16
VENTILATED. 01:29 17
THE COURT: ARE YOU SATISFIED WITH THOSE LIMITS? 01:29 18
MS. MAROULIS: THAT WOULD BE FINE, YOUR HONOR. 01:29 19
THE COURT: SEVEN, SEVEN, FOUR? 01:29 20
MS. MAROULIS: THAT WOULD BE FINE, YOUR HONOR. 01:29 21
THE COURT: ALL RIGHT. SO SEVEN, SEVEN, FOUR. 01:30 22
WORK OUT THE BRIEFING SCHEDULE. IF YOU NEED TO THEN MOVE 01:30 23
UP THE EXPERT DEPOSITION DISCOVERY DEADLINE TO GET THE 01:30 24
BRIEFING -- I WOULD LIKE, PLEASE, THREE WEEKS WITH THE REPLY 01:30 25
77
OCTOBER 24TH IS THE JUDGE'S MEETING. I DON'T KNOW ABOUT THE 01:34 1
31ST. 01:35 2
THE CLERK: OCTOBER 17TH IS THE DATE RESERVED FOR THE 01:35 3
CLASS CERT MOTION ON I BELIEVE IT'S HERSKOWITZ AND JUEL. 01:35 4
THE COURT: RIGHT. BUT I THINK THE SUGGESTION IS 01:35 5
THAT DATE'S TOO EARLY. 01:35 6
THE CLERK: OH, OKAY. 01:35 7
THE COURT: SO IF YOU WOULD CHECK OCTOBER 31, PLEASE? 01:35 8
THE CLERK: OCTOBER 31, IT'S THE DATE FOR THE CLASS 01:35 9
CERT IN THE IPHONE CASE. 01:35 10
THE COURT: OH, YEAH. THAT'S NOT A GOOD DATE. 01:35 11
THE CLERK: AND ALSO CLASS CERT IN BRAZIL VERSUS DOLE 01:35 12
FOODS. 01:35 13
THE CLERK: NOVEMBER 7TH IS THE DATE FOR APPLE'S 01:35 15
SUMMARY JUDGMENT MOTION IN THE IPHONE CASE. 01:35 16
THE COURT: UM-HUM. 01:35 17
THE CLERK: AND A COUPLE CASES LAST DAY FOR 01:35 18
DISPOSITIVE MOTIONS. 01:35 19
THE COURT: AND WHICH ONES ARE THOSE, PLEASE? 01:35 20
THE CLERK: OGDEN VERSUS BUMBLE BEE, A J & J, AND A 01:35 21
JOHNSON VERSUS SAN BENITO COUNTY. 01:36 22
THE COURT: OKAY. WHAT I WAS GOING TO SUGGEST AS 01:36 23
A -- WHEN IS COLUMBUS DAY? THAT'S THE 11TH? 01:36 24
THE CLERK: COLUMBUS DAY IS THE 14TH. 01:36 25
78
THE COURT: NO, VETERAN'S DAY. 01:36 1
THE CLERK: OH, VETERAN'S -- 01:36 2
THE COURT: WHAT I WAS GOING TO SUGGEST AS A TRIAL 01:36 3
DATE WAS NOVEMBER 12, 13, 14, 15, AND 18, SO I WANTED TO HEAR 01:36 4
YOUR PROPOSALS AS TO WHAT WOULD GO TO THE JURY FAIRLY SOON IN 01:36 5
OCTOBER SO THAT YOU COULD PREPARE THAT FOR NOVEMBER. 01:36 6
IF I MOVE THE 31ST HEARING TO THE 7TH, THEN I -- THAT COULD 01:37 7
OPEN UP THE 31ST. 01:37 8
BUT THEN THAT GIVES YOU LESS THAN TWO WEEKS. WOULD THAT BE 01:37 9
ENOUGH TIME FOR YOU TO -- 01:37 10
(DISCUSSION OFF THE RECORD BETWEEN DEFENSE COUNSEL.) 01:37 11
MS. MAROULIS: THAT SHOULD BE FINE, YOUR HONOR. 01:37 12
THE COURT: WHICH ONE? 01:37 13
MS. MAROULIS: THE 31ST IF THAT'S AVAILABLE. 01:37 14
THE COURT: OKAY. DO YOU WANT TO BE HEARD ON THAT 01:37 15
DATE? 01:37 16
MR. JACOBS: THAT'LL BE FINE, YOUR HONOR. 01:37 17
SHALL WE DECLARE THAT THE PRETRIAL CONFERENCE DATE, THEN, 01:37 18
FOR THE TRIAL IN -- 01:37 19
THE COURT: WELL, I'M JUST WONDERING IF WE SHOULD -- 01:37 20
THE ONLY THING IS I DO HAVE -- WHAT WAS THAT? -- CLASS 01:37 21
CERTIFICATION IN AN MDL ON OCTOBER 31, SO I WOULD HAVE TO BUMP 01:37 22
THAT TO PUT THIS CASE ON THAT DATE. 01:37 23
WHAT I'D LIKE TO DO -- COULD WE TRY TO KEEP IT ON THE 17TH 01:38 24
AND THEN WHATEVER -- I MEAN, MY SENSE IS, FROM LAST TIME, 01:38 25
79
BREAKING THINGS UP INTO SMALLER INCREMENTS IS A LITTLE BIT 01:38 1
EASIER FOR THE COURT THAN HAVING BIG, MASSIVE HEARINGS. IT'S 01:38 2
MORE DIFFICULT TO PREPARE FOR THEM AND WHATNOT. 01:38 3
COULD WE TRY TO KEEP IT ON THE 10TH AND THE 17TH, AND THEN 01:38 4
IF THERE IS POTENTIALLY SPILL OVER, WE'D HAVE THE 31ST AS A 01:38 5
POTENTIAL OVERFLOW DAY? WOULD THAT GIVE YOU ENOUGH TIME? 01:38 6
MS. MAROULIS: THAT'S FINE, YOUR HONOR. IF THAT'S 01:38 7
WHAT'S NEEDED FOR THE COURT, OF COURSE. 01:38 8
THE COURT: OKAY. SO WHY DON'T WE KEEP THE 17TH ON? 01:38 9
I ALSO DON'T ANTICIPATE -- I WASN'T GOING TO EVEN SET ANY 01:38 10
MOTIONS IN LIMINE BECAUSE I REALLY DON'T THINK THERE SHOULD BE 01:38 11
ANYTHING REALLY DIFFERENT. YOU'LL HAVE YOUR SAME WITNESSES 01:39 12
FROM LAST TIME. 01:39 13
OKAY. SO THE TRIAL WILL BE NOVEMBER 12, 13, 14, 15, 18. 01:39 14
I WAS ANTICIPATING MAYBE OPENINGS OF 45 MINUTES EACH, 01:39 15
CLOSINGS OF ONE HOUR EACH. 01:39 16
I HAVEN'T DECIDED THE EVIDENCE TIME PERIOD. I THINK WE'LL 01:39 17
HAVE TO FIGURE OUT IF THE '381 IS IN OR NOT. WE'LL HAVE TO 01:39 18
MAKE THAT DECISION ONCE WE HAVE MORE SORT OF SENSE OF THE 01:39 19
SCOPE. 01:39 20
MS. MAROULIS: YOUR HONOR, MAY WE SUGGEST THAT WHEN 01:39 21
WE SUBMIT TO THE COURT THE PAPERS REGARDING '381, AND WE 01:39 22
SUSPECT THE EXAMINER WILL NOT REOPEN ANYTHING, THAT THE PARTIES 01:39 23
REVISIT WHAT YOUR HONOR SUGGESTED, WHICH IS STAYING THE '381 01:39 24
AND STIPULATING POTENTIALLY TO THE REST TO OBVIATE THE TRIAL? 01:39 25
80
WE WOULD LIKE AN OPPORTUNITY TO REAPPROACH THAT WITH BOTH 01:39 1
THE COURT AND APPLE. 01:39 2
THE COURT: OH, THAT'S FINE. THAT'S FINE. 01:40 3
AND I DON'T HAVE TO SET ANY TIME PERIOD OR TIME LIMITATIONS 01:40 4
NOW ON OPENING AND CLOSING AND EVIDENCE. WE CAN DECIDE THAT 01:40 5
LATER IF THE TRIAL DOES HAPPEN. 01:40 6
BUT TENTATIVELY I WAS THINKING EIGHT JURORS WITH THREE 01:40 7
PEREMPTORIES EACH, AND WE'LL HAVE TO GET A HUGE JURY POOL 01:40 8
BECAUSE I THINK IT'LL BE MUCH MORE DIFFICULT TO FIND JURORS AT 01:40 9
THIS STAGE. 01:40 10
NOW, WITH REGARD TO YOUR MOTION, I WOULD SAY SET IT FOR A 01:40 11
HEARING, BUT SINCE WE DON'T KNOW EXACTLY WHEN THE FINAL DATES 01:40 12
WILL BE, I GUESS WHAT I WOULD ASK IS WHEN YOU DO GET FINAL WORD 01:40 13
FROM THE PTO AS TO BOTH PATENTS, '915 AND '381, IF YOU WOULD 01:40 14
CONTACT MS. PARKER BROWN, CC APPLE'S COUNSEL, AND WE'LL TRY TO 01:40 15
GET YOU A HEARING DATE IF A HEARING IS NECESSARY. 01:40 16
I MAY JUST BE ABLE TO DECIDE IT ON THE PAPERS, BUT A 01:41 17
HEARING DATE JUST GIVES ME A DATE BY WHICH I'VE GOT TO FOCUS ON 01:41 18
THIS PARTICULAR MOTION AND TRY TO GET IT RESOLVED. 01:41 19
MS. MAROULIS: YES, YOUR HONOR, WE'LL DO THAT. 01:41 20
THE COURT: OKAY. ALL RIGHT. 01:41 21
MS. MAROULIS: YOUR HONOR, THERE'S ONE ISSUE THAT I 01:41 22
WANTED TO REVISIT. 01:41 23
I KNOW THE COURT SAID THERE WILL BE NO DO-OVERS OF VARIOUS 01:41 24
KINDS, BUT WITH RESPECT TO THE DAMAGES PERIOD, LAST TIME 01:41 25
81
JUDGE GREWAL DISALLOWED DESIGN AROUND EVIDENCE TO COMPENSATE 01:41 1
FOR WHAT HE PERCEIVED AS PREJUDICE TO APPLE FOR LATE 01:41 2
PRODUCTION. 01:41 3
MS. MAROULIS: WE WOULD LIKE TO REVISIT THAT AND BE 01:41 5
ABLE TO ACTUALLY INCLUDE THE DESIGN AROUND EVIDENCE AND PERIODS 01:41 6
BECAUSE SAMSUNG ALREADY WAS PUNISHED THE FIRST TIME AROUND IN 01:41 7
THE TRIAL, AND WE BELIEVE THAT THIS TIME THE JURY SHOULD ONLY 01:41 8
HEAR THE TIMES WHEN THE DESIGN AROUNDS WERE NOT AVAILABLE. 01:41 9
IT'S UNDISPUTED THAT AT LEAST ONE OF THE DESIGN AROUNDS WAS 01:41 10
IMPLEMENTED AS OF OCTOBER OR NOVEMBER 2011, AND APPLE CONCEDED 01:41 11
DURING THE PRELIMINARY INJUNCTION STAGE THAT THAT'S A 01:41 12
NON-INFRINGING ALTERNATIVE. 01:41 13
SO WE WOULD LIKE AN OPPORTUNITY TO PRESENT TO THE JURY 01:42 14
DIFFERENT DAMAGES PERIOD BASED ON THE DESIGN AROUND 01:42 15
AVAILABILITY. 01:42 16
MR. JACOBS: I THINK SAMSUNG IS -- THIS IS A CLASSIC 01:42 17
HAVE YOUR CAKE AND EAT IT, TOO. FOR THE LAST HOUR THEY'VE BEEN 01:42 18
URGING THE COURT NOT TO ALLOW ANY REOPENING OF ANYTHING AND 01:42 19
THAT APPLE HAS TO BE RESTRICTED TO THE QUALIFICATIONS OF AN 01:42 20
EXPERT THAT IT HAD LAST TIME. 01:42 21
NOW SAMSUNG WOULD LIKE A DO-OVER ON AN EVIDENTIARY SANCTION 01:42 22
THAT JUDGE GREWAL ENTERED AND THIS COURT ENFORCED. 01:42 23
THE COURT SHOULD NOT ENTERTAIN THAT MOTION. 01:42 24
THE COURT: THAT'S DENIED. IT'S GOING TO BE LIMITED 01:42 25
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TO THE SAME EVIDENCE THAT WAS BEFORE THE JURY OF 2012. 01:42 1
AND ONCE THIS IS RESOLVED, THEN YOU CAN TAKE ALL OF IT UP 01:42 2
TO THE FEDERAL CIRCUIT AND CERTAINLY APPEAL JUDGE GREWAL'S 01:42 3
RULING AND MY AFFIRMANCE OF THAT ORDER. I THINK THAT WOULD BE 01:42 4
THE APPROPRIATE REMEDY FOR THAT ISSUE. 01:42 5
MR. PRICE: YOUR HONOR, IF I CAN ADD ONE OTHER THING, 01:42 6
WHICH I DON'T KNOW, MR. JACOBS MIGHT AGREE TO. 01:43 7
FIRST, ON THAT ONE, THE REASON WE WERE MOVING TO BE ALLOWED 01:43 8
TO DO THAT IS BECAUSE OF THE LACK OF PREJUDICE AT THIS POINT. 01:43 9
I THINK THE SANCTION WAS BECAUSE THE CODE WAS TURNED OVER TOO 01:43 10
LATE, AND NOW IT SEEMS LIKE THERE'S BEEN PLENTY OF TIME TO 01:43 11
EXAMINE THAT CODE. 01:43 12
BUT A SECOND ISSUE, YOUR HONOR, IS YOU REMEMBER THERE WAS A 01:43 13
LOT OF TESTIMONY ON CAUSATION, ON WHAT DRIVES THE SALES OF 01:43 14
THESE PHONES, AND THAT'S PART OF MR. MUSIKA'S CALCULATIONS ON, 01:43 15
ON APPLE'S LOST PROFITS. 01:43 16
YOU KNOW, IF WE HAD A FEATURE IN OUR PHONE, THEN THAT MEANT 01:43 17
APPLE DIDN'T SELL A CERTAIN NUMBER OF PHONES. 01:43 18
AND SO THERE HAS TO BE, AND THERE WAS, TESTIMONY ABOUT WHAT 01:43 19
DRIVES THE SALE OF PHONES. 01:43 20
THERE'S BEEN MORE DATA ABOUT THAT NOW -- YOU CAN ACTUALLY 01:43 21
SEE IT IN THE PAPER ALMOST EVERY DAY -- AND THERE'S MORE 01:43 22
EXPERIENCE WITH THAT. 01:43 23
FOR EXAMPLE, YOU REMEMBER APPLE CAME OUT WITH ITS MAPS 01:43 24
APPLICATION AND THERE WERE SOME PROBLEMS WITH THAT AND THERE'S 01:43 25
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SOME DATA ON, DOES THAT AFFECT SALES? 01:43 1
SO THERE'S -- THERE'S AVAILABLE, YOU KNOW, MORE RECENT 01:43 2
DATA ON THE CRITICAL ISSUE OF WHAT DRIVES THE SALE OF THESE 01:44 3
PHONES. 01:44 4
AND AT THIS POINT, TO HAVE A FAIR TRIAL, I WOULD THINK WE 01:44 5
SHOULD AT LEAST BE ABLE TO HAVE DISCOVERY ON THAT ISSUE BECAUSE 01:44 6
THERE IS BETTER LEARNING ON IT NOW. 01:44 7
MR. JACOBS: YOUR HONOR, I THINK THEY'RE NOT 01:44 8
LISTENING TO -- 01:44 9
THE COURT: THAT'S DENIED. 01:44 10
OKAY. WHAT ELSE? 01:44 11
MR. PRICE: I LISTENED, BUT I THOUGHT I COULD GIVE IT 01:44 12
A SHOT. 01:44 13
(LAUGHTER.) 01:44 14
THE COURT: YEAH, NO. I APPRECIATE THAT AND I -- AND 01:44 15
I -- I CERTAINLY HEAR AND UNDERSTAND WHERE BOTH SIDES ARE 01:44 16
COMING FROM, THAT BECAUSE THIS IS THE SECOND TIME, YOU BOTH 01:44 17
KNOW THINGS THAT HAVE HAPPENED AND NOT HAPPENED THE WAY THAT 01:44 18
YOU HAD PLANNED AND THERE'S SOME INFORMATION THAT WOULD BE MORE 01:44 19
HELPFUL. 01:44 20
BUT I THINK FOR PURPOSES OF JUST TRYING TO GET THIS UP TO 01:44 21
THE CIRCUIT, I THINK IT WOULD CREATE MORE CONFUSION IF NOW WE 01:44 22
HAVE A COMPLETELY DIFFERENT RECORD ON INFRINGEMENT. I THINK IT 01:44 23
WOULD BE MORE COMPLICATED FOR THE CIRCUIT TO EVEN REVIEW IT. 01:44 24
I JUST WANT TO GET THIS RESOLVED AS QUICKLY AS POSSIBLE AND 01:45 25
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THEN GET THIS REVIEWED. 01:45 1
MR. PRICE: SURE. AND JUST TO BE CLEAR, YOUR HONOR, 01:45 2
THAT'S NOT AN INFRINGEMENT ISSUE. THAT'S A DAMAGES ISSUE. 01:45 3
ASSUMING THAT THERE'S INFRINGEMENT, DOES THAT MAKE A 01:45 4
DIFFERENCE? WOULD THAT DRIVE THE SALE OF PHONES? WOULD APPLE 01:45 5
LOSE PROFITS? 01:45 6
THE COURT: I UNDERSTAND. I UNDERSTAND. 01:45 7
MR. PRICE: OKAY. 01:45 8
THE COURT: BUT MY CONCERN IS IF WE REOPEN DAMAGES 01:45 9
FOR A LIMITED PURPOSE, THEN IT WILL UNFORTUNATELY OPEN UP THE 01:45 10
FLOODGATES FOR ALL PURPOSES AND THEN IT'S GOING TO BE A 01:45 11
FREE-FOR-FALL AND EXCEEDINGLY BURDENSOME FOR THE PARTIES TO 01:45 12
BASICALLY RELITIGATE THE WHOLE CASE. 01:45 13
MR. PRICE: WELL, MAY I ASK YOU THIS ON ANOTHER 01:45 14
ISSUE? I WANT TO MAKE SURE I UNDERSTAND ON HOW LIMITED WE ARE. 01:45 15
IN THE FIRST TRIAL, THEY HAD THEIR CONJOINT EXPERT TESTIFY, 01:45 16
WHICH I ASSUME HE'LL TESTIFY AGAIN. 01:45 17
MR. PRICE: BECAUSE OF TRIAL STRATEGY AND THE TIME WE 01:45 19
HAD, WE HAD ON OUR WITNESS LIST A REBUTTAL CONJOINT EXPERT. WE 01:45 20
DIDN'T CALL HIM IN THAT TRIAL -- 01:46 21
MR. PRICE: -- BECAUSE OF -- YOU KNOW, LARGELY 01:46 23
BECAUSE OF TIMING. 01:46 24
I WOULD THINK THAT, TO THE EXTENT WE WERE ABLE TO PRESENT 01:46 25
EXHIBIT 5
PUBLIC REDACTED
VERSION
Highly Confidential - Outside Counsels' Eyes Only
TSG Reporting - Worldwide 877-702-9580
Page 110
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of accept abl e subst i t ut es i s onl y r el evant
2
dur i ng t he damages per i od and mor e speci f i cal l y,
3
onl y r el evant dur i ng t he l ost pr of i t s per i od,
4
and I j ust gave you when t hose per i ods st ar t .
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Q. When di d you assume t hey st ar t ed? Di d 10: 58AM
6
you assume t hey st ar t ed on t he not i ce dat e, t he
7
avai l abi l i t y of noni nf r i ngement al t er nat i ves?
8
A. That ' s t he dat e upon whi ch I ' ve
9
consi der ed t he avai l abi l i t y of such al t er nat i ves
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and det er mi ned t hat t he desi gn- ar ound per i od 10: 59AM
11
needs t o be consi der ed i n or der t o addr ess t hat
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quest i on.
13
Q. How di d you come t o consi der t hat as
14
t he st ar t i ng poi nt ? Was i t gi ven t o you by
15
at t or neys? 10: 59AM
16
A. As I ' ve expl ai ned i n my r epor t , I don' t
17
see how Samsung can desi gn ar ound a pat ent unt i l
18
i t ' s not i f i ed of i t s exi st ence and t he f act t hat
19
i t ' s i nf r i ngi ng. Because I know what t hose
20
not i ce dat es ar e as det er mi ned by t he j udge, 10: 59AM
21
t hat woul d be t he f i r st dat e t hat Samsung coul d
22
be assumed t o st ar t a desi gn- ar ound.
23
Q. Do you bel i eve i t i s appr opr i at e t o
24
cal cul at e avai l abi l i t y of accept abl e
25
noni nf r i ngement al t er nat i ves at a di f f er ent dat e 11: 00AM
Page 130
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about desi gn- ar ound, woul d you cr edi t t he
2
t est i mony by Samsung' s exper t s?
3
A. I woul d need t o r evi ew such i nf or mat i on
4
and t al k t o peopl e who have t echni cal backgr ound
5
about what i t means. 11: 24AM
6
Q. Besi des speaki ng wi t h Mr . Lamar u, di d
7
you do anyt hi ng el se t o ascer t ai n t he l engt h of
8
t he desi gn- ar ound f or t he ' 915 pat ent ?
9
A. I t hi nk I ' ve al r eady descr i bed t hat I
10
t al ked t o Dr . Si ngh and I ' ve al so r evi ewed t he 11: 24AM
11
document s i n t hi s case.
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Q. What document s di d you r evi ew?
13
A. The ones t hat come t o mi nd r el at ed t o
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pot ent i al desi gn- ar ounds woul d be t he one t hat I
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descr i bed t o you ear l i er t hat was pr oduced by 11: 25AM
16
Samsung t hat shows an 18- t o 24- mont h desi gn
17
per i od.
18
Q. Di d t hat document speak about ' 915
19
speci f i cal l y?
20
A. No, not t o my r ecol l ect i on. 11: 25AM
21
Q. I n your r epor t you assumed t hat Samsung
22
woul d st ar t desi gni ng ar ound Appl e' s pat ent s
23
begi nni ng on t he l at est of t he dat es of i ssuance
24
of t he pat ent , t he dat e Samsung f i r st sol d t he
25
pr oduct , t hen i nf r i nged t he pat ent or t he dat e 11: 26AM
Page 131
1
when Samsung r ecei ved act ual not i ce; i s t hat
2
cor r ect ?
3
A. That i s cor r ect .
4
Q. Okay. Why di d you choose t hese dat es?
5
A. Wel l , we' d have t o t ake t hem 11: 26AM
6
one- by- one. I can' t choose a dat e bef or e t he
7
dat e of not i ce because you can' t st ar t desi gni ng
8
ar ound a pat ent unt i l you know of i t s exi st ence
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and t he f act t hat you ar e i nf r i ngi ng. I can' t
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st ar t desi gni ng ar ound a pat ent t hat hasn' t yet 11: 26AM
11
i ssued, and so t hose ar e t he t wo t hat I t hi nk
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dr i ve t he cal cul at i on f or t he most par t .
13
Q. You got t he not i ce dat es f r omt he
14
Cour t ' s Mar ch 1, 2013, or der ; i s t hat r i ght ?
15
A. I di d. 11: 27AM
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Q. Okay. The dat es i dent i f i ed by t he
17
or der ar e not t he dat es t hat Samsung act ual l y
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l ear ned of t he pat ent s, ar e t hey?
19
A. I don' t know what you' r e t al ki ng about .
20
Q. Ar en' t t hese t he ear l i est dat es 11: 27AM
21
suppor t ed by t he t r i al evi dence i n whi ch Appl e
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pr ovi ded not i ce t o Samsung on t he pat ent s
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pur suant t o t he st at ut e?
24
A. Say t hat agai n, t he ear l i est dat es t hat
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Samsung. . . 11: 27AM
Page 133
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dr i ves t he not i ce dat es i n t hi s case.
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Q. You al so pr epar ed a set of cal cul at i ons
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assumi ng t hat t he desi gn per i od woul d begi n on
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t he l at er of when t he r el evant pat ent i ssued or
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t he dat e when Samsung f i r st sol d a pr oduct t hat 11: 29AM
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i nf r i nged t he pat ent s at i ssue; i s t hat cor r ect ?
7
THE WI TNESS: I ' mgoi ng t o have t o have
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you r ead t hat one back, pl ease.
9
( Recor d r ead. )
10
THE WI TNESS: I ' mnot f ol l owi ng your 11: 29AM
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quest i on. Do you have a par t i cul ar cal cul at i on
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i n mi nd?
13
BY MS. MAROULI S:
14
Q. So you per f or med cal cul at i ons wher e
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desi gn- ar ound per i od st ar t s at t he not i ce dat e, 11: 29AM
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cor r ect ?
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A. I di d.
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Q. Okay. You al so pr epar ed al t er nat i ve
19
cal cul at i ons wher e t hose desi gn- ar ound per i ods
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st ar t on a di f f er ent dat e; i s t hat r i ght ? 11: 29AM
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A. I have an al t er nat i ve cal cul at i on t hat
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shows t he desi gn- ar ound per i ods st ar t i ng as
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Mr . Wagner al l eges pr i or t o t he not i ce dat es.
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Q. Okay. Why di d you pr epar e t hi s
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al t er nat i ve set of cal cul at i ons? 11: 30AM
Page 134
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A. I expect ed Mr . Wagner t o make t hat
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ar gument and want ed t o have avai l abl e t o t he
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j udge, i f she needs i t , t he cal cul at i on t hat
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woul d show what t he r esul t woul d be i f you
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st ar t ed wi t h t hat assumpt i on. 11: 30AM
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Q. Do you bel i eve t hat cal cul at i on' s
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appr opr i at e?
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A. I don' t t hi nk so. I don' t t hi nk i t ' s
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l ogi cal t o assume t hat Samsung coul d st ar t
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desi gni ng ar ound a pat ent t hat i t di dn' t yet 11: 30AM
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have not i ce about .
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Q. Okay. Do you agr ee t hat begi nni ng a
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desi gn- ar ound per i od on t hat dat e as opposed t o
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your ot her cal cul at ed dat es decr eases your l ost
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pr of i t s anal ysi s by 300 mi l l i on? 11: 31AM
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A. I can l ook i t up t o gi ve you t he exact
17
number , but I cer t ai nl y woul d agr ee wi t h you
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t hat i t decr eases t he t ot al damages number .
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Q. I t decr eases i t subst ant i al l y, cor r ect ?
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A. Yes, i t does. 11: 31AM
21
Q. Lost pr of i t s anal ysi s r equi r es
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r econst r uct i ng t he mar ket as i t woul d have been
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wi t hout t he i nf r i ngi ng pr oduct , cor r ect ?
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A. I t does.
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Q. Okay. Thi s i s cal l ed a " hypot het i cal 11: 31AM
Page 166

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Page 274
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t hi s case, because at t he t i me, he was l ooki ng
2
at a much br oader set of pr oduct t han j ust t he
3
seven t hat ar e r emai ni ng i n t hi s case.
4
Q. He di dn' t do a pr oduct - by- pr oduct
5
cal cul at i on, di d he? 03: 29PM
6
A. That ' s cor r ect . Ther e wer e t oo many
7
pr oduct s i nvol ved at t hat t i me.
8
Q. So i t ' s not si mpl y t hat Mr . Musi ka
9
di dn' t do t he i ncr ement al pr of i t f or t he seven
10
pr oduct s at i ssue; he di dn' t do i t f or any of 03: 29PM
11
t he accused pr oduct s, cor r ect ?
12
A. I f you' r e t al ki ng about on a
13
pr oduct - by- pr oduct basi s, t hat ' s cor r ect . He
14
cl ear l y di d i t on an over al l basi s, by l ooki ng
15
at Exhi bi t 50 t o hi s r epor t . 03: 29PM
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Q. So you agr ee he di d not do i t on
17
pr oduct - by- pr oduct , cor r ect ?
18
A. He di d not show t he i ncr ement al pr of i t
19
mar gi n on any speci f i c pr oduct . He di d i t on
20
t he combi ned set of pr oduct s i nvol ved i n t he 03: 30PM
21
case at t hat t i me.
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Q. Okay. I n your r epor t you st at e t hat
23
t he pr oper basi s i s t o cal cul at e gr oss pr of i t s.
24
I f t hat i s t he case, why do you al so
25
cal cul at e t he i ncr ement al pr of i t s? 03: 30PM
Page 276
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speci f i cal l y t o t he pr oduct s l ef t i n t he case.
2
Q. I s i t your opi ni on t hat onl y t he
3
expenses you' ve deduct ed t o cal cul at e Samsung' s
4
i ncr ement al pr of i t s ar e necessar y f or Samsung t o
5
sel l an addi t i onal uni t f or each of t he seven 03: 32PM
6
devi ces?
7
THE WI TNESS: I ' msor r y. I need t o
8
have you r ead t hat back, pl ease.
9
( Recor d r ead. )
10
THE WI TNESS: I f I under st and your 03: 32PM
11
quest i on cor r ect l y, I bel i eve t hat my anal ysi s
12
of t he i ncr ement al pr of i t mar gi n has pr oper l y
13
deduct ed t hose cost s t hat woul d i ncr ease f r oman
14
addi t i onal sal e of t hat pr oduct .
15
BY MS. MAROULI S:
16
Q. And Mr . Musi ka coul d have made t he
17
pr oduct - by- pr oduct cal cul at i on i f he want ed t o,
18
cor r ect ?
19
A. I don' t know how many pr oduct s wer e i n
20
t he case at t hat t i me t hat woul d have r equi r ed 03: 33PM
21
such a cal cul at i on, but I suppose t hat woul d
22
have been a possi bi l i t y.
23
Q. And he di d not do t hat , r i ght ?
24
A. He di d not do t hat .
25
Q. Your cal cul at i on of Samsung' s 03: 33PM
EXHIBIT 6
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UNI TED STATES DI STRI CT COURT
NORTHERN DI STRI CT OF CALI FORNI A
SAN J OSE DI VI SI ON
APPLE I NC. , A CALI FORNI A
CORPORATI ON,
PLAI NTI FF,
VS.
SAMSUNG ELECTRONI CS CO. , LTD. ,
A KOREAN BUSI NESS ENTI TY;
SAMSUNG ELECTRONI CS AMERI CA,
I NC. , A NEWYORK CORPORATI ON;
SAMSUNG TELECOMMUNI CATI ONS
AMERI CA, LLC, A DELAWARE
LI MI TED LI ABI LI TY COMPANY,
DEFENDANTS.

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C- 11- 01846 LHK
SAN J OSE, CALI FORNI A
AUGUST 21, 2013

PAGES 1- 76
TRANSCRI PT OF PROCEEDI NGS
BEFORE THE HONORABLE LUCY H. KOH
UNI TED STATES DI STRI CT J UDGE
APPEARANCES ON NEXT PAGE
OFFI CI AL COURT REPORTER: LEE- ANNE SHORTRI DGE, CSR, CRR
CERTI FI CATE NUMBER 9595
PROCEEDI NGS RECORDED BY MECHANI CAL STENOGRAPHY
TRANSCRI PT PRODUCED WI TH COMPUTER
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THE COURT: OKAY. WI TH REGARD TO - - THERE I S AN
UNOPPOSED MOTI ON TO STAY THE COURT' S ORDER GRANTI NG ROVI ' S
MOTI ON TO I NTERVENE AND GRANTI NG I N PART AND DENYI NG I N PART
THE MOTI ON TO SEAL. THAT' S ECF NUMBER 2355.
THAT UNOPPOSED MOTI ON TO STAY I S GRANTED AND I ' LL J UST
I NCLUDE AN ENTRY I N THE CASE MANAGEMENT ORDER THAT COMES OUT OF
TODAY' S PROCEEDI NG J UST SO I T' S CLEAR ON THE RECORD THAT THAT
HAS BEEN DEALT WI TH.
OKAY. LET' S GO TO THE PROPOSED NEUTRAL STATEMENT. I DON' T
I NTEND TO DO ANY NEUTRAL STATEMENT.
I DO ENVI SI ON THAT THE PRELI MI NARY J URY I NSTRUCTI ONS WOULD
HAVE TO GI VE SOME I NDI CATI ON TO THE J URY AS TO WHAT I SSUE I S
BEFORE THEMAND WHAT I SSUE THEY DO NOT NEED TO DECI DE, AND I ' M
GOI NG TO LEAVE I T FOR A LATER DATE FOR THE PARTI ES TO MEET AND
CONFER AND PERHAPS COME UP WI TH YOUR OWN SEPARATE PROPOSALS AS
TO WHAT YOU THI NK THAT LANGUAGE SHOULD BE, WHETHER I T SHOULD BE
J UST "I N A PRI OR PROCEEDI NG, A J URY FOUND I NFRI NGEMENT AND
VALI DI TY, " OR WHETHER I T SHOULD SAY, "YOU ARE TO ASSUME
VALI DI TY AND I NFRI NGEMENT AND THE ONLY I SSUE FOR YOU TO DECI DE
I S DAMAGES. " I WOULD LI KE YOU ALL TO MEET AND CONFER AND MAKE
A PROPOSAL AS TO WHAT THAT PRELI MI NARY J URY I NSTRUCTI ON SHOULD
BE.
BUT I DON' T I NTEND TO GI VE ANY OTHER STATEMENT BEYOND A
PRELI MI NARY J URY I NSTRUCTI ON, AND I EXPECT THI S I SSUE TO, AT
MOST, BE ONE OR TWO SENTENCES OF THE PRELI MI NARY J URY
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I NSTRUCTI ONS. OKAY? I HOPE THAT' S - -
MS. MAROULI S: THANK YOU.
THE COURT: - - SOMEWHAT HELPFUL GUI DANCE.
OKAY. LET' S GO TO THI S QUESTI ON ABOUT WI TNESSES, EXHI BI TS,
DEPOSI TI ON DESI GNATI ONS.
SO - - AND I ' LL GI VE YOU AN OPPORTUNI TY TO RESPOND, BUT I
HAVE BEEN THI NKI NG ABOUT HOWTO DO THI S I N THI S RETRI AL, AND I
THI NK THE CLEANEST WAY I S TO SAY THAT ANY EVI DENCE THAT WAS NOT
STRI CKEN, THAT WAS NOT SUBJ ECT TO SOME DAUBERT MOTI ON OR MOTI ON
I N LI MI NE AND EXCLUDED, THAT WAS TI MELY I DENTI FI ED, WHETHER I T
WAS ACTUALLY I NTRODUCED AS AN EXHI BI T OR WHETHER ANY TESTI MONY
WAS ACTUALLY ADDUCED FROMTHE TRI AL, I S ADMI SSI BLE AND I S
WI THI N THE PROPER SCOPE OF THI S RETRI AL.
HOWEVER, ANYTHI NG THAT WAS PREVI OUSLY EXCLUDED, ANY EXHI BI T
OR WI TNESS THAT WAS NOT TI MELY DI SCLOSED, ANY NEWDATA I S NOT
WI THI N - - DOES NOT FALL WI THI N THE PROPER SCOPE OF THI S TRI AL.
SO I DO BELI EVE THAT THE PARTI ES PREVI OUSLY I DENTI FI ED
WI TNESSES FOR SPECI FI C TOPI CS, AND I F THOSE WERE SUBMI TTED AND
DI SCLOSED TI MELY AND WERE NOT SUBJ ECT TO A MOTI ON TO STRI KE,
DAUBERT MOTI ON, MOTI ON I N LI MI NE THAT WAS GRANTED, THEN THAT I S
THE PROPER SUBJ ECT OF THI S UPCOMI NG TRI AL. ALL RI GHT?
SO SAME FOR EXHI BI TS. I F I T WAS TI MELY DI SCLOSED AND
WASN' T EXCLUDED I N ANY WAY, WHETHER I T WAS OR WAS NOT
I NTRODUCED DURI NG THE TRI AL, I T' S FAI R GAME FOR THI S TRI AL.
AS FAR AS WI TNESSES, I T DOES - - I AMLI MI TI NG THE WI TNESSES
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TO THE TOPI CS FOR WHI CH THEY WERE TI MELY DI SCLOSED AND FOR
WHI CH NO EXCLUSI ON ORDER WAS GRANTED.
OKAY? I S THAT CLEAR AS MUD, OR WHAT - -
MS. MAROULI S: YOUR HONOR, I HAVE A COUPLE OF
CLARI FI CATI ONS, I F I T' S OKAY.
THE COURT: OKAY. UM- HUM.
MS. MAROULI S: WI TH RESPECT TO WI TNESSES, THERE WERE
SEVERAL DI FFERENT I TERATI ONS OF THE WI TNESS LI ST.
THE COURT: OKAY.
MS. MAROULI S: I UNDERSTOOD WHAT YOUR HONOR J UST SAI D
I S TO SAY THAT WHEN SAMSUNG SERVED I TS WI TNESS LI ST ON
J ULY 7TH, THE FI RST LI ST, AND ANYONE FROMTHAT LI ST WHO WAS NOT
STRI CKEN LATER I N TRI AL CAN BE A WI TNESS POTENTI ALLY I N THI S
CASE. I S THAT RI GHT?
MR. MCELHI NNY: TO REFRESH - - I F I MAY REFRESH YOUR
HONOR' S RECOLLECTI ON? WE WENT THROUGH THREE I TERATI ONS OF
WI TNESS LI STS BECAUSE THE ORI GI NAL SAMSUNG WI TNESS LI ST HAD
OVER 200 WI TNESSES ON I T.
A SECOND I TERATI ON HAD THE PROPER NUMBER OF WI TNESSES, BUT
HAD AN APPENDI X A ATTACHED WHI CH I NCLUDED THE 200 WI TNESSES.
YOUR HONOR TOLD SAMSUNG THAT WAS NOT WHAT YOU HAD I NTENDED,
AND EACH PARTY SUBMI TTED A FI NAL WI TNESS LI ST, AND THAT WAS THE
WI TNESS LI ST FOR WHI CH WI TNESSES WERE ALLOWED TO TESTI FY AT
TRI AL.
WHAT MS. MAROULI S SAYS SHE UNDERSTANDS YOU TO MEAN I S TO GO
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USED, THEN I T WOULD BE HELPFUL TO DECI DE I T SOONER.
MS. MAROULI S: YOUR HONOR, I SUGGEST THAT WE DECI DE
I T BEFORE TRI AL.
THE COURT: OKAY. LET' S HAVE THAT BE PART OF THE
MOTI ONS I N LI MI NE, WHI CH ARE GOI NG TO BE DECI DED ON
OCTOBER 17TH, PLEASE.
MS. MAROULI S: THANK YOU.
THE COURT: OKAY. ALL RI GHT. BUT THAT I S THE
DEFAULT RULE, THAT I F I T WAS PREVI OUSLY ADMI TTED, WE' RE GOI NG
TO GO AHEAD AND ADMI T I T NOW, I T' LL SAVE TI ME AND BE SI MPLER,
AND NO NEWOBJ ECTI ONS WI LL BE ENTERTAI NED.
OKAY.
MR. MCELHI NNY: I ' M- -
THE COURT: LET' S TALK ABOUT TI ME ALLOCATI ON.
MR. MCELHI NNY: BEFORE WE LEAVE THAT - -
THE COURT: YES?
MR. MCELHI NNY: I ' MSORRY, YOUR HONOR. BEFORE WE
LEAVE THAT, WE HAVE THE SAME WHI CH LI ST PROBLEM, BECAUSE,
AGAI N, THE LI STS GOT NARROWED, AND THE ORI GI NAL LI ST HAD OVER A
THOUSAND EXHI BI TS ON I T, AND WE EVENTUALLY ENDED UP WI TH A - -
THE COURT: FI NAL.
MR. MCELHI NNY: THANK YOU.
THE COURT: FI NAL LI ST.
MS. MAROULI S: YOUR HONOR, WE HAVE ONE QUESTI ON
REGARDI NG THE EXHI BI T LI ST. AS YOU KNOW, APPLE CHANGED
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EXPERTS. THEY HAVE NOWJ ULI E DAVI S AS THEI R EXPERT. MS. DAVI S
SUBMI TTED A NUMBER OF NEWOPI NI ONS, WHI CH I S THE SUBJ ECT OF A
MOTI ON THAT' S COMI NG UP, AND SAMSUNG WOULD RESPECTFULLY REQUEST
A DEPARTURE FROMTHE SAME EXHI BI TS RULE FOR THE SOLE PURPOSE OF
I MPEACHMENT OF MS. DAVI S, BECAUSE WHEN WE WERE WORKI NG WI TH
MR. MUSI KA AND DEPOSI NG HI MAND DOI NG I MPEACHMENT AND WHATNOT,
WE WERE LI MI TED TO ONE SET OF DOCUMENTS.
AND NOWTHI S I S A NEWPERSON, A NEWEXPERT WHO HAS A NEW
SET OF OPI NI ONS AND I F WE' RE NOT ABLE TO USE ANY NEWDOCUMENTS
AT ALL TO CONTRADI CT HER OPI NI ONS, UNLESS THEY' RE STRI CKEN,
THAT WOULD BE PREJ UDI CI AL TO SAMSUNG.
THE COURT: I S THERE ANY OBJ ECTI ON FROMAPPLE AS TO
THAT?
MR. MCELHI NNY: THERE I S, YOUR HONOR.
THE COURT: WHAT' S THAT?
MR. MCELHI NNY: I DON' T UNDERSTAND THE LOGI C THAT
THERE WOULD BE DI FFERENT I MPEACHMENT OF MS. DAVI S. MS. DAVI S
I S RESTRI CTED TO GI VI NG MR. - - THE OBJ ECTI ON I S THAT THI S OPENS
THE WORLD TO ALL - - I MEAN, ALL OF A SUDDEN EVERY DOCUMENT - -
THERE' S NO WAY FOR ME TO KNOWWHAT DOCUMENTS THEY' RE TALKI NG
ABOUT, WHAT THE UNI VERSE OF EXHI BI TS BECOMES SUDDENLY.
THE COURT: UM- HUM.
MR. MCELHI NNY: WE HAVE A WI TNESS WHO' S BEEN - - AND
YOU' LL HEAR THE MOTI ONS, YOU' LL SEE I T - - VERY STRI CTLY, BY
YOUR HONOR' S ORDER, COMPELLED TO GI VE EXACTLY THE SAME OPI NI ONS
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THAT MR. MUSI KA GAVE - -
THE COURT: UM- HUM.
MR. MCELHI NNY: - - USI NG THE SAME METHODOLOGI ES,
USI NG THE SAME DOCUMENTS THAT HE USED, ESSENTI ALLY.
THE CONCEPT THAT THERE' S NEWI MPEACHMENT AND, THEREFORE,
THERE' S THI S BI G GAPI NG HOLE I N THE EXHI BI T RULE - - TO DO I T I N
THI S KI ND OF A CONTEXT FOR A BROAD ORDER I THI NK LOSES ALL
CONTROL OF THE PROCESS.
THE COURT: WELL, I J UST WANT TO GI VE YOU SORT OF
BROAD GUI DANCE, AND THEN I ' LL HAVE YOU MEET AND CONFER AND THEN
YOU CAN TEE I T UP FOR A LATER TI ME.
BUT I DO THI NK I F THERE I S I MPEACHMENT THAT I S SPECI FI C TO
MS. DAVI S, I DON' T KNOW, MAYBE SHE' S GOT A CHECK FRAUD
CONVI CTI ON, I - -
MR. MCELHI NNY: I T WASN' T ADMI TTED I N THE FI RST
TRI AL, YOUR HONOR.
( LAUGHTER. )
THE COURT: WELL, I ' MASSUMI NG MR. MUSI KA DI DN' T HAVE
THAT CONVI CTI ON. I DON' T KNOW. MAYBE I T' S YOUR CONVI CTI ONS AS
WELL.
( LAUGHTER. )
THE COURT: BUT I F THERE' S SOME SPECI FI C I MPEACHMENT
AS TO HER, I THI NK I T' S ONLY FAI R THAT SAMSUNG BE ALLOWED TO
BRI NG THAT UP.
NOW, I F THEY' RE NOWGOI NG TO ATTACK THE LOST PROFI TS
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METHODOLOGY WI TH HER OWN STATEMENT THAT' S CONTRARY, HER OWN
PUBLI CATI ON THAT' S CONTRARY TO THAT STATEMENT, I THI NK THAT' S
FAI R GAME, TOO.
NOW, I F I T' S OTHER THI RD PARTY TREATI SE THAT THEY SHOULD
HAVE BEEN ABLE TO DI SCOVER AND USE AGAI NST MR. MUSI KA, THEN I
AGREE, WHATEVER THEY SHOULD HAVE FOUND THAT WOULD BE APPLI CABLE
TO MR. MUSI KA SHOULD BE EXCLUDED.
BUT WHATEVER I S SPECI FI C TO MS. DAVI S, HER OWN SPEECHES,
HER OWN PUBLI CATI ONS, HER OWN CRI MI NAL CONVI CTI ONS, WHATEVER I T
I S, I THI NK THAT' S FAI R GAVE.
MR. MCELHI NNY: MAY WE HAVE A SPECI FI C DATE BY WHI CH
THOSE ARE I DENTI FI ED TO US SO THAT WE CAN FI ND OUT WHAT THI S
UNI VERSE I S, YOUR HONOR?
THE COURT: WELL, WHEN SHOULD THAT BE DECI DED? I ' MA
LI TTLE BI T CONCERNED THAT I F A CMC TURNS I NTO A MONSTER, I ' MA
LI TTLE BI T CONCERNED ABOUT OCTOBER 10 AND OCTOBER 17.
I WAS I NI TI ALLY ENVI SI ONI NG ANY MOTI ON TO STRI KE FROMTHE
EXPERT REPORT TO BE HEARD ON OCTOBER 10 WI TH ANY DAUBERT
MOTI ON, AND THEN HAVI NG ANY MOTI ON I N LI MI NE HEARD ON
OCTOBER 17.
SO WHEN DOES I T MAKE SENSE TO HAVE - -
MS. MAROULI S: YOUR HONOR, I T SEEMS LI KE PRETRI AL
CONFERENCE MATERI AL, SO I T WOULD BE HEARD AT THE PRETRI AL
CONFERENCE OF OCTOBER 17.
THE COURT: THE 17TH? OKAY. I WAS GOI NG TO GI VE YOU

EXHIBIT 7


02198.51855/5496689.1
REDLINE COMPARING MR. MUSIKAS AND MS. DAVISS
DESCRIPTIONS OF THE UTILITY PATENTS AT ISSUE

Strikethrough =deleted in Ms. Davis's report
Double-underline =added to Ms. Davis's report

U.S. Patent No. 7,469,381 (the The 381 Patent) covers, for example, a method, on a device
with atouch screen display, rubber banding or bounce back function, an effect that users
associate with Apples user interface. It relates to letting a user know when he or she has reached
the edge of an electronic document on a screen. For example, it covers a method for displaying
an electronic document and translating the document in response to object movement detected on
the display (e.g., a finger, such as a gesture) from a finger. When the user drags a document is
translated in a direction that causes anpast the edge of the document to be reachedwith a finger,
an area beyond the edge is displayed. The 381 Patent discloses that thisThis provides a visual
indicator to athe user that one or more edges of an electronicthe user reached the edge of the
document are being displayed. When the user releases the finger such that the device no longer
detects the movement of the object, the document is translatedpage snaps back so that the area
beyond the edge is no longer displayed.

U.S. Patent No. 7,844,915 (the The 915 Patent) covers, for example, a method for covers a
device with a scroll vs. gesture function on a touchscreen display. It relates to scrolling on a
touch -sensitive display of a device and for distinguishing between scrolling and other actions.
TheFor example, it covers a method that includes creating an event object in response to
receiving athe user input on the display and determining whether the event object invokes a
scroll (e.g., a window scroll) or a gesture operation (e.g., scaling the view) bys touch, and
distinguishing between a single input point (interpreted asfrom the user, which the device
interprets as invoking a scroll operation) or, and two or more input points (interpreted as a
gesture operation).from the user, which the device interprets as invoking a gesture operation. A
scroll operation scrolls (e.g., translates) the view associated with the event without scaling
(zooming in or out), while a gesture operation scales the view but may do more than that (e.g.,
rotate). One example of a gesture operation is pinch to zoom. A two-finger movement that
combines scaling and scrolling is a gesture operation because it can scale. Users see these
actions as scrolling, pinching, and zooming, and associate them with Apples user interface.

U.S. Patent No. 7,864,163 (the The 163 Patent) covers, for example, a method for displaying
andmanipulating a structured electronic document (e.g., an HTML web page) on a device with a
touch screen display. The method covers a device with a tap-to-zoom function. It relates to
allowing a user to double tap to enlarge and center on one portion of a document, then gesture on
a different portion of the document to center on that portion. For example, it covers a method
that includes enlarging and translating thea document to substantially center on a first box of the
document based on detecting a first touch gesture at the firstthat boxs location and, then
translating the document so that a second box is substantially centered based on detecting a
second touch gesture at the second boxs location. The patent also claims various other touches
and gestures for restoring a web page to its original size, matching a page width to the display
width, rotating a web page in portrait and landscape modes, and translating and scaling pages
using swipes and gestures.that second boxs location.

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