Case 3:18-cv-02245-JD Document 315 Filed 02/02/24 Page 1 of 2
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`February 2, 2024
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`M O R R I S O N & F O E R S T E R L L P
`A U S T I N , B E I J I N G , B E R L I N , B O S T O N ,
`B R U S S E L S , D E N V E R , H O N G K O N G ,
`L O N D O N , L O S A N G E L E S , M I A M I ,
`N E W Y O R K , P A L O A L T O , S A N D I E G O ,
`S A N F R A N C I S C O , S H A N G H A I , S I N G A P O R E ,
`T O K Y O , W A S H I N G T O N , D . C .
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`Via CM-ECF
`The Honorable James Donato
`United States District Judge
`U.S. District Court for the Northern District of California
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`Re:
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`Firstface Co. v. Apple Inc., Case No. 3:18-cv-2245-JD
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`Dear Judge Donato:
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`Apple responds to Firstface’s January 30, 2024 letter (Dkt. No. 314). Firstface’s letter
`misleadingly suggests that Apple has “agreed” not to call Mr. Thomas at trial. Firstface knows
`this is untrue. Both in writing and during the parties’ oral meet and confer, Apple made clear that
`it would not call Mr. Thomas if that would resolve the parties’ dispute. Inexplicably, Firstface also
`falsely claims that Apple “agreed” not to offer “testimony from Dr. Cockburn regarding the source
`code on Apple’s prior art iPhone 3GS and 4 products.” But Apple never agreed that Dr. Cockburn
`could not provide any prior art source code-related opinions, especially as he reviewed and
`specifically opined on source code produced before the fact discovery close in his expert report.
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`On January 26, 2024, Apple conferred orally with Firstface. To try to reach a resolution,
`Apple proposed not to call Mr. Thomas as a witness. In response, Firstface asked that Apple
`propose related language for a stipulation. When sending the draft stipulation to Firstface on
`January 29, Apple noted: “attached are proposed edits to the stipulation to resolve the outstanding
`disputes re: Mr. Thomas’s and Dr. Cockburn’s testimony.” (Ex. 1 at 1; emphasis added.)
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`Apple believes that its proposed stipulation (attached) fairly responds to the Court’s order
`(Dkt. No. 305). Firstface’s motion sought to limit the scope of Mr. Thomas’s testimony. (Dkt.
`No. 198.) In response to the Court’s order barring Mr. Thomas from testifying about “materials
`not disclosed before the discovery cut-off,” Apple proposed not to call Mr. Thomas at all. Apple
`also proposed to preclude Dr. Cockburn from offering the opinions in paragraph 196 and the first
`sentence of paragraph 210 of his report, which addressed unproduced source code versions.
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`Firstface’s requested relief, by contrast, vastly overreaches. It is not limited to undisclosed
`materials, and it seeks to preclude testimony even as to materials that Apple produced before the
`discovery cut-off. Firstface seeks to preclude Mr. Thomas from testifying about any prior art
`source code (including properly produced source code) and Dr. Cockburn from testifying about
`his related discussions with Mr. Thomas. (Dkt. No. 314 at 2.) Because source code produced
`before the discovery cut-off cannot constitute “materials not disclosed before the discovery
`cut-off” (D.I. 305), however, the Court’s order precludes neither.
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`Apple indisputably produced versions of prior art source code for the iPhone 3GS and 4
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`Case 3:18-cv-02245-JD Document 315 Filed 02/02/24 Page 2 of 2
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`before the fact discovery cut-off. (Compare Dkt. No. 198 at 5 and Dkt. No. 211 at 3, 9-10 with
`Dkt. No. 314 (Firstface falsely alleging that Apple did not “disclose the source code for its prior
`art 3GS and 4 products”).) Although Apple could not locate the code for the specific iOS versions
`installed on its iPhone 3GS and 4 samples, it produced code for other iOS sub-versions used with
`the iPhone 3GS and 4 before 2011. Dr. Cockburn inspected and opined regarding that properly
`produced code in his report, and Firstface’s expert did the same. Mr. Thomas, whom Apple
`disclosed as knowledgeable of the development of the accused products, testified at his deposition
`about his personal knowledge of iOS source code, including the produced prior art versions. (Dkt.
`No. 211-6 at 125:8-126:3 (testifying that all iOS code versions turned on the display in response
`to a Home button press).) Mr. Thomas’s testimony about produced prior art code and
`Dr. Cockburn’s reliance on discussions with Mr. Thomas about that code therefore are appropriate.
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`As further relief, Firstface asks the Court to preclude Dr. Cockburn from testifying
`“regarding the source code on [sic] Apple’s prior art iPhone 3GS and 4 products,” including
`testimony “comparing, or substituting, the ‘functionality’ of produced versions of source code to,
`or with, the ‘functionality’ of undisclosed source code implemented on the iPhone 3GS and 4
`products.” (Dkt. No. 314 at 2.) This, too, overreaches. Apple does not intend to have
`Dr. Cockburn testify about unproduced versions of code. Apple also will agree that he may not
`testify about paragraph 196 and the first sentence of paragraph 210 of his report, which discussed
`unproduced source code versions. But Dr. Cockburn’s anticipated testimony about produced code
`is not subject to the Court’s order.
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`The overbreadth of Firstface’s requested relief is apparent from the paragraphs of his
`report1 that Firstface seeks to preclude beyond 196 and the first sentence of 210:
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`Paragraphs 191 and 204-207 concern source code produced before the discovery cut-off;
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`they explain that the produced versions were used in the iPhone 3GS and 4 before 2011.
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`Paragraphs 194 and 208 do not refer to Mr. Thomas or unproduced source code at all; they
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`discuss the iPhone 3GS and 4’s functionality based on Dr. Cockburn’s review of produced code.  
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`Paragraphs 195 and 209 concern Dr. Cockburn’s testing of samples of the iPhone 3GS and
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`4 products; they explain that the functionality that Dr. Cockburn observed via testing is identical
`to that in the produced code that he reviewed.
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`In sum, Apple’s proposal to not call Mr. Thomas and to strike the language in
`Dr. Cockburn’s report referring to unproduced code corresponds to the relief contemplated by the
`Court’s order. Apple asks that the Court enter an order consistent with its proposed stipulation.
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`Respectfully submitted,
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`/s/ Arturo J. González
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`cc: All Counsel of Record via CM/ECF
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`1 The relevant paragraphs of Dr. Cockburn’s report are available at Dkt. No. 199-6.
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`2
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