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Hearing Today at Noon in Apple v Samsung Re Motion to Compel Apple to Show HTC Agreement ~pj Updated
Wednesday, November 21 2012 @ 12:24 PM EST

There's a hearing suddenly called by the magistrate judge, Hon. Paul Grewal, in the Apple v Samsung post-verdict trial. It's about unsealing the Apple/HTC license agreement mostly -- here's Apple's response [PDF] to that motion -- but there are other requests to seal various filings and some disputes about things already filed as well. Samsung wants to do more depositions and more briefing in regard to Apple's motion for a judgment as a matter of law, for example. The hearing is set for noon today, and the lawyers can do it by phone. So it's likely going on right now as we speak.

Part of the reason for the hearing, aside from a speedier resolution, is that there is some question about why there is a motion to unseal the HTC agreement.

Jump To Comments

Apple claims that it and HTC don't mind providing it, so long as the "consideration" is kept sealed from the public (technically that it be marked "Highly Confidential - Attorney's Eyes Only" as per the protective order in the case), and Apple claims that Samsung has agreed to that condition, while preserving its rights to request the unredacted version later, making the motion moot. But it adds that Samsung doesn't agree that it's moot, so there is more to this story than Apple is telling.

In an email [PDF] attached as an exhibit to Apple's opposition, from the new lawyer just added to Samsung's team, Daryl M. Crone, who I gather will be handling the HTC issue, since Quinn Emanuel represented HTC in the other dispute with Apple, Samsung explains why it can't agree to the two restrictions yet:

We are not willing to agree to the portion of the stipulation that requires Samsung to withdraw its motion at this time or states that Samsung will withdraw its motion seeking the unredacted agreement. As stated in my email of this morning, we need to see the redacted Agreement first. Please let us know if you are still willing to provide the redacted Agreement to Samsung given our commitment to treat it as Highly Confidential—Attorneys’ Eyes Only.
It's not unusual at all for lawyers to represent several clients in various disputes with some overlap, as the Bloomberg article linked to above states, but there are lines you don't cross. That's why the Quinn Emanuel lawyers in this litigation don't know the amount HTC is paying, even though the same firm handled the deal. It's kind of like Chinese walls in software development. You might work for the same company, but you and the other group can't communicate about what they are working on or vice versa. And if you work with one group, you can't join the other one later and work on their project. And with lawyers, it's kind of like that, that you can't represent opposing clients simultaneously or at all, and sometimes that means bringing in an outside firm, so there's absolutely no question about a wall being in place. You saw David Boies represent the US *against* Microsoft, then represent SCO Group against Novell funded *by* Microsoft, and now is representing Novell *against* Microsoft. The key is that none of those litigations' subject matters currently overlap. I have a bit of an issue with the last one, personally, in that technically Boies Schiller still represents SCO, the embers for which are still at least partly warm. But the Novell issue is dead and buried.

Here are the ABA's Model Rules of Professional Conduct, if you are interested in more precision about what lawyers ideally do and don't do. For example, here's the section on former clients:

Client-Lawyer Relationship Rule 1.9 Duties To Former Clients

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client

(1) whose interests are materially adverse to that person; and

(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter;

unless the former client gives informed consent, confirmed in writing.

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or

(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

The issue is whether the two clients have interests that are materially adverse. And you can get the former client to say it's fine to represent the new one. All of that is why it's impossible or at least hard to know, as an outsider, all that happens in such a matter without it showing up on a docket. HTC and Samsung are rather obviously on the same side, generally speaking, meaning both getting sued by Apple over Android, or were on the same side when this started. I'd like to read that licensing agreement myself, actually. I'm explaining all this, because if you see FOSSPatents frothing at the mouth about a conflict of interest, or a near one, you'll have the real facts, not someone's personal opinion based on who knows what.

Why Apple finds that Samsung email hard to understand or why it would think that the email, which clearly does not agree to the two restrictions yet, should be characterized to the judge as Samsung agreeing and hence mooting Samsung's motion is a puzzlement to me. What's not hard to parse out is that there is a lack of trust in this picture, and maybe some issues about wording, and that's something the judge may be able to fix by just ruling on the matter.

Consideration can mean more than money, by the way, and that might just be the clue to what's going on here. Samsung may be worried about Apple word tricks, resulting in Samsung agreeing to more than it means to.

Here's the docket, including the notice about the hearing:

2148 - Filed & Entered: 11/19/2012
NOTICE by Apple Inc. re [2136] Order on Administrative Motion to File Under Seal Musika Exhibit 12 - Previously Filed Under Seal (Attachments: # (1) Musika Exhibit 13 - Previously Filed Under Seal, # (2) Musika Exhibit 21 - Previously Filed Under Seal, # (3) Musika Exhibit 25 - Previously Filed Under Seal, # (4) Musika Exhibit 49 - Previously Filed Under Seal)(Hung, Richard) (Filed on 11/19/2012)

2149 - Filed & Entered: 11/20/2012
Administrative Motion to File Under Seal filed by Apple Inc.. (Attachments: # ( 1) Apple's Opposition to Samsung's Motion to Compel Depositions and to File Supplemental Brief in Opposition to Permanent Injunction (Public Version), # (2) Declaration of Erik Olson in Support of Apple's Opposition to Samsung's Motion to Compel Deposition and to File Supplemental Brief (Public Version), # (3) Exhibit 1, # (4) Exhibit 2, # (5) Exhibit 3, # (6) Exhibit 4 (Public Version), # (7) Exhibit 5)(Jacobs, Michael) (Filed on 11/20/2012)

2150 - Filed & Entered: 11/20/2012
CERTIFICATE OF SERVICE by Apple Inc. (Jacobs, Michael) (Filed on 11/20/2012)

2151 - Filed & Entered: 11/20/2012
RESPONSE (re [2144] MOTION to Compel Production of Settlement Agreement with HTC ) Apple's Opposition to Samsung's Motion to Compel Production of Settlement Agreement with HTC filed byApple Inc.. (Attachments: # (1) Declaration of Richard Hung, # (2) Exhibit 1)(Jacobs, Michael) (Filed on 11/20/2012)

2152 - Filed & Entered: 11/21/2012
ORDER SETTING HEARING AT NOON TODAY. After reviewing both pending motions and the responses filed yesterday evening, and in the interest of providing a prompt decision on the underlying disputes, the court believes that a brief oral argument today at noon would benefit all concerned. In light of the limited notice provided, the court will permit counsel's participation by telephone. Any counsel intending to participate by phone should coordinate arrangements with Mr. Rivera, courtroom deputy to the undersigned. re [2141] Administrative Motion to File Under Seal Motion to Compel Depositions of Apple Reply Expert Declarants filed by Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC, Samsung Electronics America, Inc., [2144] MOTION to Compel Production of Settlement Agreement with HTC filed by Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC, Samsung Electronics America, Inc.. Signed by Judge Paul S. Grewal on 11/21/12. (Grewal, Paul) (Filed on 11/21/2012)

Update: And here's what happened later, the judge saying he's taken it under advisement and will issue a written order; also there are two new Quinn Emanuel lawyers joining the Samsung team, both of them attending the hearing, as you can see by the minutes from the day:

2153 - Filed & Entered: 11/21/2012
CLERK'S NOTICE RE: TELEPHONIC APPEARANCE FOR 11/21/12 MOTION HEARING: Counsel requesting to appear telephonically are 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 11/21/2012)

2154 - Filed & Entered: 11/21/2012
NOTICE of Appearance Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC Notice of Appearance of Robert J. Becher (Maroulis, Victoria) (Filed on 11/21/2012)

2155 - Filed & Entered: 11/21/2012
NOTICE of Appearance Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC Notice of Appearance of Anthony P. Alden (Maroulis, Victoria) (Filed on 11/21/2012)

2156 - Filed & Entered: 11/21/2012
Minute Entry: Motion Hearing held on 11/21/2012 before Magistrate Judge Paul S. Grewal re [2141] MOTION to Compel Depositions of Apple Reply Expert Declarants filed by Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC, Samsung Electronics America, Inc., and [2144] MOTION to Compel Production of Settlement Agreement with HTC filed by Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC, Samsung Electronics America, Inc.: The Court takes matters under submission; written order after hearing to be issued. (Court Reporter FTR: (12:06 to 1:04.) (ofr, COURT STAFF) (Date Filed: 11/21/2012)

The two new lawyers are Anthony Alden, who hails originally from Australia and is a partner at Quinn, and Robert Becher. Both handle high-stakes IP and complex commercial disputes. Mr. Becher, also a partner, represents Samsung against Apple before the ITC. He also trounced Rambus, so thank you Mr. Becher, included in a list of representative clients:
Obtained a ruling from the United States District Court for the District of Delaware, following a one week bench trial, that Rambus Inc. could not enforce twelve patents related to computer memory against Micron Technology, Inc. because it engaged in bad-faith spoliation of evidence.

Successfully defended MediaTek, Broadcom, NVIDIA and others in an ITC investigation brought by Rambus regarding memory controllers.

Update: The judge granted Samsung's motion to compel. See the next article for the details.

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