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Juanita R. Brooks, SBN 75934 Seth M. Sproul, SBN 217711 Frank J. Albert, SBN 247741 Joanna M. Fuller, SBN 266406 FISH & RICHARDSON P.C. 12390 El Camino Real San Diego, CA 92130 Phone: 858-678-5070 / Fax: 858-678-5099 [Additional counsel listed in signature block on last page.]
Attorneys for Defendant/Counterclaim-Plaintiff Apple Inc.
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
QUALCOMM INCORPORATED, Plaintiff, v. APPLE INC., Defendant. Case No. 3:17-cv-1375-DMS-MDD
APPLE INC.’S RESPONSE TO QUALCOMM’S BENCH MEMORANDUM REGARDING AN INSTRUCTION RELATING TO MR. SIVA’S TESTIMONY
Trial Date: March 4, 2019 Judge: Hon. Dana M. Sabraw
AND RELATED COUNTERCLAIMS.
Case 3:17-cv-01375-DMS-MDD Document 677 Filed 03/12/19 PageID.38490 Page 1 of 16
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INTRODUCTION
Arjuna Siva
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appeared at trial yesterday and truthfully and fully explained how he developed and communicated to Qualcomm the idea that Qualcomm claims is the “solution” covered by the ’949 patent—on which Mr. Siva is not named as an inventor. That is exactly the testimony that Apple expected Mr. Siva to provide because he had previously testified to those facts under oath at his deposition. Now that Mr. Siva has testified, the issue of a curative instruction about his unavailability is moot. Suggestions by Qualcomm and Matt Warren
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that Apple’s concerns were baseless ignores the undisputed chronology and facts. More importantly, it ignores what Mr. Warren said to Apple in the less than 24 hours he served as Mr. Siva’s counsel. In a real sense, Qualcomm is suggesting that the Court punish the victim or that the victim apologize. As set forth below, the record unequivocally demonstrates that Apple had good reason for its concerns and acted responsibly in raising those concerns with the Court. Indeed, for many months, Mr. Siva was planning to voluntarily testify at trial:
February 15, 2018: Mr. Siva is deposed in the International Trade Commission (ITC) litigation and represented by WilmerHale. Mr. Siva testified based on Qualcomm’s own description of the “solution” provided by the ’949 patent that he believed the idea was his.
April 25, 2018: After Mr. Siva testified in his ITC deposition, Qualcomm withdrew the ’949 patent from that case.
October 30, 2018: WilmerHale counsel speaks with Mr. Siva about this trial.
November 29, 2018: WilmerHale counsel meets with Mr. Siva for trial preparation.
February 21, 2019: WilmerHale counsel meets with Mr. Siva for trial
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Mr. Sivasithambaresan shortens his last name to Siva.
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Letter to the Court from David H. Kramer on behalf of Matt Warren, Dkt. 669.
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preparation.
March 1, 2019: WilmerHale counsel meets with Mr. Siva for trial preparation.
March 4, 2019: In its opening statement, Apple represents that Mr. Siva will voluntarily appear to testify, just as he had indicated he would.
March 6, 2019: Mr. Siva is scheduled to fly to San Diego but requests to change his flight to early on March 7. Then, on the morning of March 7, things changed. Mr. Siva emailed counsel from WilmerHale at 6:48 a.m. to inform them that he had retained new counsel in this matter, Mr. Warren. Shortly thereafter, Mr. Warren spoke with Richard O’Neill of WilmerHale. Mr. Warren indicated that he was now representing Mr. Siva, who was now
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intending to voluntarily attend trial unless subpoenaed. Mr. Warren also stated that he would “strongly advise” Mr. Siva not to answer questions in a manner that would indicate Mr. Siva contributed anything to the ’949 patent, and instead would advise him to limit his testimony strictly to reciting facts about what he had done and communicated to Qualcomm. After representing Mr. Siva for one day, Mr. Warren withdrew from the representation, and Mr. Siva’s current counsel represented him for the purposes of his trial testimony yesterday. These facts and this chronology—culminating with Mr. Warren’s emergence as Mr. Siva’s counsel on March 7, and informing Apple of his intent to “strongly advise” Mr. Siva to provide trial testimony that Apple believed might not be consistent with Mr. Siva’s earlier deposition testimony—caused Apple substantial and real concern. Indeed, based on these same available facts, the Court itself acknowledged that “I do understand why Apple is very upset.” (Tr. at 613:25-614:1.) From the start, Apple was clear when addressing this serious issue with the Court about the limitations of Apple’s knowledge regarding the origins of these
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