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Apple Seeks Order Preventing Samsung’s Attorney from Participating in Further Depositions on Charges That Attorney Did Not Practice with Honesty, Care and Decorum

In the ongoing action between Apple and Samsung, Apple filed a motion for a protective order seeking to prohibit one of Samsung’s attorneys from participating in any further depositions. Alternatively, Apple sought an order restricting the attorney from engaging in particularly abusive deposition acts, including belligerent and insulting treatment of witnesses, repeated interruptions, unilaterally terminating a deposition, uncivil treatment of opposing counsel, engaging in lengthy colloquy on the record, among other things.

Samsung objected to the order and denied that any in appropriate conduct had occurred at all Samsung also noted that Apple’s witnesses were Apple’s patent lawyers and agents who are accustomed to the adversarial process.

The court was apparently less than happy to have this dispute land before it. “And so the court confronts a circumstance in which two sophisticated parties, represented by equally sophisticated and reputable law firms, confront the identical set of actions and yet urge diametrically opposite conclusions. In support of their respective positions, both sides file transcript after transcript. Both sides encourage the review of deposition DVD after deposition DVD. And yet, remarkably, neither side confronts to even truly acknowledges evidence undermining its preferred conclusion, in textbook examples of what psychologists refer to as ‘confirmation bias.'”

The court also was not pleased that neither party followed the district court’s requirement that lead trial counsel must meet and confer before filing this type of motion. “Nor does either side point to even one instance in which it followed Judge Koh’s explicit instruction for lead trial counsel to meet in person before imposing on the court what is essentially a motion to behave.”

Accordingly, the court denied Apple’s motion but the opinion reflected poorly conduct of both parties that can only be described as “lose lose” situation. “In light of this unfortunate record of non-compliance with Judge Koh’s instructions, the court denies Apple’s motion. These instructions were not optional, and at no point have the parties sought relief from these instructions even after the undersigned reminded them of that opportunity. The court must therefore decline to share the conclusions it has reached about what is depicted in the transcripts and DVDs stacked on the court’s desk.”

The court’s order should leave the unmistakable conclusion that neither party acted appropriately and that these type of disputes, particularly with sophisticated parties and counsel, should be resolved without need for court intervention.
Apple, Inc. v. Samsung Electronics Co., Ltd., Case No. C 11-1846 LHK (PSG) (N.D. Cal. Nov. 16, 2011)

The authors of are patent trial lawyers at Jeffer Mangels Butler & Mitchell LLP. We represent inventors, patent owners and technology companies in patent licensing and litigation. Whether pursuing patent violations or defending infringement claims, we are aggressive and effective advocates for our clients. For more information contact Stan Gibson at 310.201.3548 or