Patent Lawyer Blog
Apple noticed the depositions of several high-ranking employees at Samsung and moved to compel their depositions. As the district court explained, “Apple argues that it entitled to these depositions because each SEC witness has unique, firsthand, non-repetitive knowledge of facts and events central to this litigation. The SEC witnesses acted in their authoritative, decision making capacities regarding certain Samsung policies that directed other employees to consider and compare Apple products when designing or re-designing the accused products or features. The STA witnesses are personally knowledgeable of or responsible for development, marketing, and finance decisions relating to the U.S. market for the accused products. Because Samsung has not produced any discovery from these witnesses, all of the evidence it relies upon has been pieced together from other witness sources.”
Samsung opposed the motion, responding “[t]hat these six witnesses hold the title of Executive Vice president or higher, oversee at a minimum entire groups or divisions of employees, and have only high-level knowledge far removed from the facts at issue in the case. Apple has not demonstrated that the information it seeks is unique, first-hand, and non-repetitive, principally because Apple has failed to obtain this information through other less burdensome means.”
After reviewing the law pertaining to “apex” depositions, the court stated that “[t]he ‘apex’ doctrine exists in tension with the otherwise broad allowance for discovery of party witnesses under the federal rules. This judicially-created vehicle appropriately seeks to limit the potential for the discovery rules to serve as a tool for harassment. Yet the court finds the doctrine’s common application to the classic paradigm of a single-hierarchy corporate structure to be ill-suited to determining apex status and the resulting bounds of appropriate discovery in the case of a large, multi-national corporation. A company of global proportions, like Samsung, may in a single breath identify tens of high-level executives, each in charge of what amounts to its own, significant division or sub-organization within the company. In such a case, the two-prong test for unique first-hand, non repetitive knowledge and for the party’s attention to other, less intrusive discovery methods must form only part of a more nuanced equation. In order that the “apex” designation as applied to multiple executives does not itself become a tool for evading otherwise relevant and permissible discovery, the court must assess not only the materiality of the proposed deponent’s knowledge of pertinent facts and the availability of other means for the party to access that knowledge, but with apologies the person’s degree of “apex-ness” in relation to these factors. On the proverbial sliding scale, the closer that a proposed witness is to the apex of some particular peak in the corporate mountain range, and the less directly relevant that person is to the evidence proffered in support of his deposition, the more appropriate the protections of the apex doctrine become. ”
With these factors in mind, the court then ruled on a number of the high-ranking depositions. Focusing on the CEO of Samsung, the court noted that “Apple seeks to compel the deposition of Choi by arguing that he has been deeply involved in directing Samsung’s employee to make Samsung products more lie Apple’s products. To show Choi’s unique, first-hand knowledge regarding Samsung’s purported strategy of considering Apple’s products when creating new Samsung products, Apple offers two categories of documents. The first category consists of emails and meeting minutes authored by other Samsung employees that indicate Choi presided over meetings or discussion involving, for example, ‘product competiveness against iPAD2’ and resulting design changes for Samsung’s own tablet products, or that summarize statement or directive attributed to Choi that reference the need to evaluate Samsung’s high-end products against Apple’s and thereby develop products that are more competitive. The second category consists of documents from 2007 – shortly after Apple’s release of the iPhone and before Samsung’s “Design Management Center” of which Choi was the head at the time. The proffered document outlines a strategy that Apple contends mimics its own, renowned strategy for customer experience, as well as directly cites Apple products.”
The court also noted that Apple had tried to obtain the information it sought from lower level employees but was unsuccessful in doing so.
As a result, the court ultimately sided with Apple on the issue: “Choi’s position as CEO of Samsung Electronics Company does not automatically shield his deposition. In In re Google, this court ordered the limited deposition of the defendant’s CEO after the plaintiff showed that he had unique knowledge of facts that could not be secured by other less intrusive means of discovery. Specifically, the CEO was a named inventor on several patents, he was one of a few employees at Google during at the time of hypothetical negotiations of the patents at issue, and he had direct knowledge of the patent search industry. In light of the evidence proffered by Apple that Choi was at the head of a strategic shift in Samsung’s design mentality oat precisely the time that certain accused products were being developed, the court is similarly persuaded that Choi may have engaged in ‘the type of hands-on-action which demonstrates the unique personal knowledge required to compel a deposition of a CEO.’ Although Samsung is correct that holding rank at the top of the relevant hierarchy is not enough, apple has set forth additional bases that warrant discovery into Choi’s role in developing the polices or strategies identified as suspect by Apple.”
But the court limited the number of hours of the deposition to just two hours recognizing that the CEO was the quintessential “apex” witness.
The authors of www.PatentLawyerBlog.com 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 SGibson@jmbm.com.