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Judge Koh Denies Samsung Motion to Strike ~pj Updated
Tuesday, October 16 2012 @ 10:54 AM EDT

As expected, Judge Lucy Koh has denied Samsung's motion to strike [PDF]. Samsung pointed out that the judge had told the parties to limit their briefs on two kinds of motions -- for judgment as a matter of law and on motions asking for an injunction -- to 30 pages. Also there was a rule not to use declarations or other exhibits attached to motions to bring up matters not in the main brief. Portions of Apple's declarations attached to Apple's injunction motion [PDF], in Samsung's view, violated those rules. So it asked for a sanction, that the offending portions of the declarations be stricken, but Judge Koh didn't see it that way:
Samsung’s reason for striking the material is procedural: that the declarations serve to circumvent the page limits for Apple’s motion in violation of the Court’s Order Re: Post-Trial Proceedings issued on August 28, 2012, ECF No. 1945.

As the motion to strike is essentially an “evidentiary or procedural objection” to the permanent injunction motion, it must be contained within the opposition brief and subject to the opposition brief’s page limitations. See Civ. L. R. 7-3(a); see also Order Denying Motion for Preliminary Injunction, ECF No. 452, at 5. Because Samsung filed the motion to strike separately from the opposition, Samsung’s motion to strike is DENIED. See Civ. L. R. 7-3(a). Samsung’s motion to shorten time and Apple’s opposition thereto are DENIED as moot.

So, denied on a technicality. Your first reaction may be that Apple is, once again, being favored by the judge. It was mine too. But there is a subtext, if you check the documents referenced, that make it a bit more nuanced. For one thing, Samsung can still add these objections to its opposition to Apple's motion for judgment as a matter of law, because that deadline isn't until October 19.

So why file it like this separately first? Probably so they'd have room to argue other things, if this had survived the judge's scalpel. And the judge is still free to disregard those portions of the declarations, and she will if her order means anything to her. If she is this strict with Samsung, she surely needs to be strict with Apple too, or it looks like bias, and then it gets added to the appeal. So in that sense Samsung couldn't lose. Actually, I expect this to show up in the appeal anyhow. For sure, Samsung is building its appeal.

It all illustrates something nicely that you need to understand to follow along meaningfully: that lawyers sometimes are speaking or writing on more than one level at the same time, and judges sometimes answer them in the same multi-layered way. I think this may be one of those times, particularly because this isn't the first time Samsung has tried to get rid of some of those same declarations, as I'll show you.

First, the filings:

2035 - Filed & Entered: 10/08/2012
EXHIBITS re [2031] MOTION to Shorten Time Regarding Samsung's Motion to Strike CORRECTED Exhibit 1 to Declaration of Kara Borden filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Related document(s)[2031]) (Maroulis, Victoria) (Filed on 10/8/2012)

2036 - Filed & Entered: 10/08/2012
Terminated: 10/09/2012
MOTION to Remove Incorrectly Filed Document at Docket No. 2031-2 filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Proposed Order)(Maroulis, Victoria) (Filed on 10/8/2012)

2037 - Filed & Entered: 10/09/2012
CLERK'S NOTICE SETTING HEARING ON MOTOROLA MOBILITY'S EMERGENCY MOTION TO SEAL CONFIDENTIAL DOCUMENT: Motion Hearing (In Re: Docket No. [2028]) set for 10/10/2012 at 01:30 PM before Magistrate Judge Paul Singh Grewal. Counsel is instructed to contact CourtCall at 866-582-6878 to arrange for telephonic appearance. ***This is a text only docket entry, there is no document associated with this notice.*** (ofr, COURT STAFF) (Filed on 10/9/2012)

2038 - Filed & Entered: 10/09/2012
ORDER by Judge Lucy H. Koh denying [2031] Motion to Shorten Time; denying [2032] Motion to Strike (lhklc2, COURT STAFF) (Filed on 10/9/2012)

2039 - Filed & Entered: 10/09/2012
ORDER by Judge Lucy H. Koh denying [2026] Motion to Remove Incorrectly Filed Document; denying [2036] Motion to Remove Incorrectly Filed Document (lhklc2, COURT STAFF) (Filed on 10/9/2012)

2040 - Filed & Entered: 10/10/2012
Minute Entry: Motion Hearing held on 10/10/2012 before Magistrate Judge Paul S. Grewal re [2028] Emergency Administrative Motion to File Under Seal Confidential Document filed by Motorola Mobility LLC: The Court denies Motorola Mobility's Motion to Seal for reasons stated on the record. (Court Reporter: Summer Fisher.) (ofr, COURT STAFF) (Date Filed: 10/10/2012)

2041 - Filed & Entered: 10/12/2012
Brief re [1981] Brief, Reply Regarding Non-Jury Claims Including Waiver, Equitable Estoppel, Unclean Hands, and Unfair Competition filed byApple Inc.. (Related document(s)[1981]) (Selwyn, Mark) (Filed on 10/12/2012)

2042 - Filed & Entered: 10/12/2012
REPLY (re [1988] MOTION on Samsung's Non-Jury Claims, Including Indefiniteness ) filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Declaration of John M. Pierce, # (2) Exhibit 1, # (3) Exhibit 2, # (4) Exhibit 3, # (5) Exhibit 4, # (6) Exhibit 5, # (7) Exhibit 6, # (8) Exhibit 7, # (9) Exhibit 8, # (10) Exhibit 9, # (11) Exhibit 10, # (12) Exhibit 11, # (13) Exhibit 12, # (14) Exhibit 13, # (15) Exhibit 14, # (16) Exhibit 15, # (17) Exhibit 16, # (18) Exhibit 17)(Maroulis, Victoria) (Filed on 10/12/2012)

To begin parsing this out, let's look at the references the judge put into her order. Let's begin with this one, "ECF No. 1945", meaning docket number 1945. That turns out to be this order [PDF] from this same judge, the order giving the 30-page rule for Rule 50 motions and for Apple's motion for a permanent injunction that Samsung cited as being the order Apple had violated. In addition to the page limits, there was this paragraph:
The page limits set forth herein will be strictly enforced. Any argument that is not explicitly articulated within the briefing page limits will be disregarded. Any supporting documentation shall be for corroboration purposes solely and shall not be used as a vehicle for circumventing the Court’s page limits. Any citations to the record must include the relevant testimony or exhibit language. Any single-spaced bullets in an attempt to circumvent the briefing page limits will be disregarded.
And a footnote added:
1 The Court will entertain only one post-judgment motion for relief per side, not including Apple’s motion for permanent injunction and willfulness enhancement. Accordingly, any party who wishes to move for relief pursuant to Rules 52(b), 59, or 60, shall incorporate such motion(s) into its Rule 50 motion.
So that was supposedly the way each side was to conduct itself. Samsung, in its Motion to Strike [PDF], filed on October 5th, said Apple had violated that order. Apple filed a lot more than that. Samsung asked that parts of the Declarations of Christopher Crouse, Terry Musika, Marylee Robinson, Phillip W. Schiller, and Russell S. Winer in Support of Apple’s Motion for a Permanent Injunction be struck.

Here's how Samsung described the purpose of the motion to strike in its motion [PDF] to shorten time:

That motion seeks to enforce this Court’s August 28, 2012 Order limiting Apple to 30 pages for its Motion for a Permanent Injunction and for Damages Enhancements (“Injunction and Enhancement Motion.” In violation of that Order, Apple submitted more than 40 pages of declarations containing additional argument and evidence, much of which was either not referenced in the brief at all, or only discussed in a single sentence of the brief.
So, Samsung is merely asking her to "strictly enforce" her own order, which she wrote that she would do. So far, she has not, based on a technicality she could have viewed a different way, had she desired to rule for Samsung. It is rather clear that she did not want to rule for Samsung, and perhaps she has in mind some rulings yet to appear that rely on those declarations. Or she may just be a rules person, and once she doesn't like you, she rules very strictly everything you do, while making allowances for people she likes. Most of us do that, and it's usually totally unconscious. Don't you excuse yourself or your best friend for things that in others you judge quite harshly? Most people do, but they don't always realize it. So it could be that. Or, the judge could simply be right about the rules and the way she views the motion to strike.

I imagine in Samsung's mind, its motion was for sanctions or a motion to enforce an order. But the judge took it as a procedural or evidentiary motion related to Apple's motion for judgment as a matter of law, so the rules could preclude her from granting it. True, judges do have wide lattitude to do what they think they should, and they can find a way to rule for a party that they want to rule for.

But now let's look at that rule, cited as Civ. L. R. 7-3(a), which stands for Civil Local Rules, meaning the rules in that court:

7-3. Opposition; Reply; Supplementary Material

(a) Opposition. Any opposition to a motion may include a proposed order, affidavits or declarations, as well as a brief or memorandum under Civil L.R. 7-4. Any evidentiary and procedural objections to the motion must be contained within the brief or memorandum. Pursuant to Civil L.R. 7-4(b), such brief or memorandum may not exceed 25 pages of text. The opposition must be filed and served not more than 14 days after the motion was filed. Fed. R. Civ. P. 6(d) does not apply and thus does not extend this deadline. However, by this Local Rule, the Court extends by 3 days the deadline to file an opposition to a motion if the motion was not filed and served through the Court’s Electronic Case Filing (ECF) system and was served pursuant to Fed. R. Civ. P. 5(b)(2)(C), (D), (E) or (F).

There is an exception to the rule:
(d) Supplementary Material. Once a reply is filed, no additional memoranda, papers or letters may be filed without prior Court approval, except as follows:

(1) Objection to Reply Evidence. If new evidence has been submitted in the reply, the opposing party may file within 7 days after the reply is filed,and serve an Objection to Reply Evidence, which may not exceed 5 pages of text, stating its objections to the new evidence, which may not include further argument on the motion. The Objection to Reply Evidence must be filed and served not more than 7 days after the reply was filed. Fed. R. Civ. P. 6(d) does not apply and thus does not extend this deadline. However, by this Local Rule, the Court extends by 3 days the deadline to file an Objection to Reply Evidence if the reply was not filed and served through the ECF system and was served pursuant to Fed. R. Civ. P. 5(b)(2)(C), (D), (E) or (F).

This isn't the first time this judge has used this rule against Samsung. The final reference I wanted to show you is her earlier order on a motion denying Apple's earlier motion for preliminary injunction, which is Docket No. 452 [PDF]. If you look at page 5, you will see the judge denying Samsung's objections to Apple's evidence offered in support of its reply to the preliminary injunction motion. As long-timers here know, you are not supposed to add new evidence to a Reply motion, and if you do, the other side is supposed to be given an opportunity to respond, and Samsung believed Apple had done so. So guess what Samsung wanted thrown out? Here's the judge, refusing to do so, and notice why:
The Court DENIES Samsung's separate motion to exclude on the ground that Samsung failed to comply with Civil Local Rule 7-3, which requires that any evidenciary objections to a motion be contained within the opposition memorandum. See also Cortez v. Global Ground Support, LLC, No. 09-CV-4138, 2010 WL 5173861, at *2 n.5 (N.D. Cal. Dec. 15, 2010) (declining to consider evidentiary objections filed in separate brief pursuant to Civ. L.R. 7-3(a)). Furthermore, Civil Local Rule 7-3 limits the oppostion memorandum to 25 pages. With leave of the Court, Samsung filed a 40-page opposition memorandum that included none of the evidentiary objections presented in Samsung's separate motion to exclude (indeed, it appears that Samsung cited evidence from the declaration it seeks to exclude). Thus, it would further neither the spirit nor the letter of Civil Rule 7-3 for the Court to consider Samsun's separate evidentiary objections. Cf. C & C Jewelry Mfg., Inc. v. West, No. 09-CV-01303, 2011 WL 835821, at *3 (N.D. Cal. Mar. 4, 2011) (considering objections contained in document separate from the opposition memorandum because objections and opposition memorandum "together total[ed] less than twenty five pages" and consideration of the evidentiary objections therefore did not violate the spirit of Civil L. R. 7-3(a))....

Samsung seeks to exclude the declarations and supporting evidence of Terry Musika, Arthur Rangel, Sanjay Sood, Tony Blevins, and Christopher Stringer, because these new declarations were submitted for the first time in reply. Samsung also seeks to strike several paragraphs and corresponding exhibits from the reply declarations of Peter Bressler, Ravin Balakrishnan, and Cooper Woodring, because the opinions and evidence on claim construction offered in these paragraphs were offered for the first time in reply. Finally, Samsung moves to strike several documents produced by Apple after the production deadline, as well as Apple's contention that the iPad2 is a commercial embodiment of the D'889, because these documents and contentions were produced and established after court-imposed deadlines.

As a general rule, new evidence presented in reply should not be considered without giving the non-movant an opportunity to respond....After reviewing the declarations, evidence, and arguments at issue in Samsung's objections, the Court OVERRULES Samsung's objections to the Musika, Rangel, Sood, Blevins, and Stringer declarations. While the Court is disturbed that Apple did not include these declarations, particularly the Musika, Rangel, and Sood declarations, in its opening motion, the evidence presented by Apple in these declarations is not "new." Rather the declarations were offered to rebut evidence presented by Samsung in its opposition papers that Apple is unlikely to be irreparably harmed absent an injunction, and that the design patents are invalid because they are entirely functional. Similarly, the Court OVERRULES Samsung's objections to several paragraphs and corresponding exhibits from the reply declarations of Peter Bressler, Ravin Balakrishnan, and Cooper Woodring. This evidence was responsive to Samsun's arguments in its opposition regarding claim construction of both the utility and design patents. The Court also OVERRULES Samsung's objections to Apple's contention that the iPad2 is a commercial embodiment of the D'889 and the objections to documents produced by Apple after the production deadline....

3 Samsung also objects to the Blevin declaration because he was not disclosed in Apple's initial disclosures. The Court OVERRULES this objection because pursuant to Fed. R. Civ. P. 26(e), the parties may supplement initial disclosures after the fact. Moreover, Blevin's declaration is submitted in direct response to Samsung's arguments offered in its Opposition.

I left off a couple of footnotes that were not relevant to my point, which is that Samsung has been hit by the Rule 7-3(a) before. So why did Samsung try to get the evidence thrown out in a separate motion again? I mentioned some possibilities, but here's the big one: Samsung is building its appeal. Do you see how all of her overruling of Samsung's objections to evidence could be a matter the appeals court might review? I sure do. After all, what evidence is allowed in and what isn't can and does significantly influence how the jury views the case.

If Samsung is thinking like I am, it isn't expecting much help from this judge, because the water under the bridge so far isn't encouraging. But hers is not the final word. And so the appeal specialists working on this part of the litigation are building their case for a successful appeal.

On the judge's side, she is responsible to make both sides fight according to the rules, and here she is speaking to Samsung, and I hear her saying, OK, you have fleshed out your appeal, but I have not changed my mind. And I saw what you did. It didn't work this time either.

If any of you have any extra money jingling in your pocket and can help cover the expense for the endless documents being filed in this case, I'd appreciate it if you could help me out by hitting the PJ Paypal icon. The bill for the last quarter for court documents was over $1,000, a lot of it this case, where the parties are tireless about filing motions with endless exhibits. Docket number 2042 with all its exhibits, for example, cost $22 just for that one item, and the parties show no sign of letting up. If you can't donate, don't worry. You can and do help out in other ways. It's an unusual situation, one Groklaw has never faced before, where both sides file unusual amounts of documents. When clients have deep pockets, the lawyers try everything on their behalf, and that means a lot of motions.

Update at 12:54 PM: I have enough donations to cover, so you don't need to do more. Thank you so much, everyone that already met the need. You guys are the best.

Update 2: I had placed the wrong PDF for Apple's motion for a permanent injunction. I've fixed it now, and you can find the declarations attached to them on this Apple v. Samsung Timeline 2 page. Look for Docket No. 1982. Thanks to your generosity, I've added some more of the many documents and will make it complete shortly.

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