Case 1:13-cv-00919-JLH Document 557 Filed 05/25/23 Page 1 of 6 PageID #: 56824
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 13-919-JLH
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`ARENDI S.A.R.L.,
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`Plaintiff,
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`v.
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`GOOGLE LLC,
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`Defendant.
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`NON-PARTY APPLE INC.’S REPLY IN SUPPORT OF
`MOTION FOR SANCTIONS
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`Plaintiff Arendi S.A.R.L.’s (“Plaintiff”) Opposition misstates the law and facts, ignores
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`the harm to Apple resulting from the public disclosure of Apple confidential information by
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`Plaintiff’s counsel and expert during trial, and ignores Plaintiff’s counsel’s failure to take any
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`action regarding the disclosure after it occurred. Plaintiff’s arguments are misplaced, and the
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`Court should award Apple sanctions as requested in its Motion.
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`I.
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`The Conduct of Plaintiff’s Counsel and Expert Warrant Sanctions.
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`Plaintiff first argues that “an inadvertent disclosure that was promptly corrected does not
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`warrant sanctions.” (Opp. at pp. 8-13.) This argument fails as an initial matter because it suggests
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`that a heightened bad faith standard applies and must be met to support a sanctions award.
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`However, as the Third Circuit explained in Republic of Philippines v. Westinghouse Elec. Corp.:
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`Although we stated in Landon v. Hunt, 938 F.2d 450 (3d Cir.1991), that a
`prerequisite for the exercise of the district court’s inherent power to sanction is a
`finding of bad faith conduct” (id. at 454), that statement should not be read to
`require a finding of bad faith in every case, regardless of the sanction contemplated.
`… [A] court need not always find bad faith before sanctioning under its inherent
`powers: “[s]ince necessity does not depend upon a litigant’s state of mind, the
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`Case 1:13-cv-00919-JLH Document 557 Filed 05/25/23 Page 2 of 6 PageID #: 56825
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`inherent sanctioning power must extend to situations involving less than bad faith.”
`Chambers v. NASCO, Inc., 501 U.S. 32, 45-46 (1991).
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`Republic of Philippines v. Westinghouse Elec. Corp., 43 F.3d 65, n. 11 (3rd Cir. 1994). Here, the
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`Court is empowered by the law of this Circuit to fashion an appropriate remedy based on its
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`inherent powers to sanction. Id. at 74. Moreover, while “a pattern of wrongdoing may require a
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`stiffer sanction than an isolated incident,” nothing prohibits the Court from sanctioning a party or
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`its counsel for a singular action. Id. Applying this standard, the facts here demonstrate more than
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`sufficient wrongdoing by Plaintiff. This is because the disclosure was neither entirely
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`“inadvertent,” nor was it “promptly corrected” through any action by Plaintiff.
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`First, even if one were to agree that Mr. Weinstein’s disclosure of the Settlement Amount
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`(as defined in the Opposition) during his redirect testimony was “spontaneous,” (though Apple
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`disputes this) the balance of the disclosure complained of by Apple was unquestionably not.
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`Rather than halting Mr. Weinstein’s redirect testimony at that point and seeking to seal the
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`courtroom, Plaintiff’s counsel proceeded with an immediate follow-up line of questioning in
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`which he disclosed the Damages Figure and elicited additional testimony from Mr. Weinstein
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`regarding his damages analysis with respect to Apple. (See 4/26/23 Transcript at 641:20 to
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`642:22.) Such conduct is not inadvertent, and it is mere luck that Mr. Weinstein did not
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`“spontaneously” reveal any additional Apple confidential information in response to Plaintiff’s
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`counsel’s follow-up questioning.1
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`Even if Mr. Weinstein’s statement was a spontaneous utterance over which counsel had
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`no control, thereafter Plaintiff failed to undertake any actions to rectify the situation. Instead of
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`1 It is also mere luck for Arendi that there were no members of the public in the courtroom at the
`time of this disclosure. Notably, Plaintiff’s counsel failed to confirm this fact. Rather, it was
`Apple’s counsel who asked all unknown participants in the courtroom to confirm their affiliation
`with the parties.
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`Case 1:13-cv-00919-JLH Document 557 Filed 05/25/23 Page 3 of 6 PageID #: 56826
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`“promptly tak[ing] all reasonable measures to retrieve the improperly disclosed Discovery
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`material and [] ensur[ing] that no further or greater unauthorized disclosure and/or use thereof is
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`made” as required by the Protective Order, Plaintiff’s counsel merely stated to Apple’s counsel
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`that he would “deal with it later” and then took no action. Plaintiff’s argument amounts to “no
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`harm, no foul,” while conveniently ignoring that any perceived lack of harm to Apple is
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`attributable entirely to Apple’s corrective measures—not Plaintiff.2 Had Apple’s counsel not
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`been in Court to monitor Plaintiff’s use of Apple confidential information, this violation of the
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`Protective Order would have persisted without correction. But Apple cannot attend every trial
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`where its confidential information is presented and it must be able to depend on signatories to a
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`Protective Order that they will abide by such protections. Plaintiff failed to do so here, and
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`sanctions are warranted.
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`II.
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`Plaintiff Violated the Protective Order, as Well as Its Supplemental Agreement with
`Apple and the Confidentiality Provisions of the Apple Agreement.
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`Plaintiff designated the Apple Agreement as “CONFIDENTIAL OUTSIDE COUNSEL
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`ONLY” at the time it produced the Apple Agreement pursuant to the Protective Order and
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`agreed to the supplemental protections that Apple requested. (ECF No. 540 (Sakimae
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`Declaration) ¶ 3.) At no point during discovery or at trial did Plaintiff seek to de-designate the
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`Apple Agreement. Indeed, when Apple told Plaintiff that it would monitor trial, Plaintiff tacitly
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`acknowledged that public disclosure would be improper and agreed to measures to protect the
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`Apple Agreement from public disclosure while discussing the information contained therein the
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`2 Plaintiff states that “Apple has not identified anything else that Arendi should have done.”
`(Opp. at 12.) At a minimum, Plaintiff should have determined if anyone else was in the
`Courtroom at the time of its disclosure and worked with them to “ensure that no further or
`greater unauthorized disclosure and/or use thereof [was] made.” (ECF No. 16-1 at ¶ 13(A).)
`Plaintiff did not do this; Apple did.
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`Case 1:13-cv-00919-JLH Document 557 Filed 05/25/23 Page 4 of 6 PageID #: 56827
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`with the jury. (See Opp. at 13.) Plaintiff’s argument that it didn’t violate the Protective Order
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`here is disingenuous and should be rejected.
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`But even if the Court were to determine the Plaintiff did not technically violate the
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`Protective Order, that would not be fatal to this motion for sanctions as violation of a Court order
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`is not a necessary threshold to a sanctions award. Rather, in addition to their civil contempt
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`power, federal courts have inherent power to impose sanctions for a party’s misconduct. See In
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`re Intel Corp. Microprocessor Antitrust Litig., 562 F. Supp. 2d at 610-11; see also Citrix Sys.,
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`Inc. v. Workspot, Inc., No. CV 18-588-LPS, 2020 WL 5884970, at *6 (D. Del. Sept. 25, 2020).
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`Here, even setting aside the Protective Order, Plaintiff does not dispute in its Opposition that it
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`violated its supplemental agreement with Apple regarding the treatment of the Apple Agreement
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`at trial in this action as well its confidentiality obligations to Apple under the Apple Agreement.
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`Any of these violations is, and certainly all of these violations taken together are, sufficient
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`misconduct to award sanctions against Plaintiff.
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`III. Apple Suffered Indisputable Prejudice as a Result of Plaintiff’s Public Disclosure of
`Apple Confidential Information.
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`Plaintiff willfully ignores the real prejudice suffered by Apple here. Not only did it have
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`to station two attorneys in the courtroom for over a week to monitor trial, but it also had to
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`rectify the disclosure once it had occurred because Plaintiff was unwilling to do so. Plaintiff’s
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`statement that there is no prejudice because “Apple voluntarily allowed the Settlement Amount
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`to be made available to its competitor, Google, without consulting Arendi” is absurd. (Opp. at 6
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`(emphasis in original); Opp. at 16.) Google’s corporate representative, Mr. Choc, was in the
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`courtroom at the time that Mr. Weinstein disclosed the Settlement Amount because Plaintiff
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`failed to seal the Courtroom. (Second Declaration of Hannah L. Cannom in support of Non-Party
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`Apple Inc.’s Motion for Sanctions ¶ 2, Ex. A.) It was only because Mr. Choc had already heard
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`Case 1:13-cv-00919-JLH Document 557 Filed 05/25/23 Page 5 of 6 PageID #: 56828
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`the Settlement Amount as a result of Plaintiff’s improper disclosure that Apple consented to his
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`attending the closing, subject to certain conditions, which he satisfied. (Id.) Plaintiff cannot
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`credibly claim that Apple’s consent to Mr. Choc’s attendance at closing—after Plaintiff’s
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`improper disclosure of Apple’s confidential information in public court—demonstrates an
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`indifference or lack of diligence with respect to its, or Arendi’s, confidential information. Again
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`it was Plaintiff, not Apple, who should have remediated the Protective Order disclosure with Mr.
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`Choc. (ECF No. 16-1 at ¶ 13(A).)
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`Plaintiff argues that Apple’s timing and choice to file its Motion was driven by some
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`nefarious motivation, but it was not. (See Opp. at 3-4.) Apple waited more than a week to file its
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`Motion so as to let the trial conclude and to confirm that there were no additional Protective
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`Order violations with respect to Apple confidential information. In the interim, and to rectify the
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`immediate violation of the Protective Order, Apple promptly filed a motion to seal as requested
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`by the Court. (ECF No. [].) Apple seeks sanctions, not as a threat, but as a means to correct
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`Plaintiff’s failure to comply with the Protective Order and to proactively protect the Apple
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`confidential information that it had previously agreed to keep confidential.
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`IV. Apple’s Motion Is Procedurally Proper.
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`None of the case law cited by Plaintiff indicates that Apple must be a party to the
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`litigation in order to protect its confidential information and/or seek an award of sanctions here.
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`For example, Krumwiede v. Brighton Assocs., L.L.C., merely found that the plaintiff lacked
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`standing to challenge the defendant’s use of a non-party’s protected information where the non-
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`party attempted to “go through [the plaintiff] to vicariously attack [the defendant’s] use of [the
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`non-party’s] documents.” Case No. 05-cv-3003, 2006 WL 2644952, at *3 (N.D. Ill. Sept. 12,
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`2006); see also Burton Mech. Contractors, Inc. v Foreman, 48 F.R.D. 230, 234 (N.D. Ind. 1992)
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`(finding that plaintiff did not have standing to assert the confidentiality rights of non-parties).
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`Case 1:13-cv-00919-JLH Document 557 Filed 05/25/23 Page 6 of 6 PageID #: 56829
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`Here, Apple is not seeking to have a party seek redress on its behalf. Moreover, the Court itself
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`invited Apple to protect its confidential information and file a motion to seal the portion of the
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`transcript that is the subject of this motion. There is simply no basis to require Apple to intervene
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`to make this post-trial motion for sanctions. Further, as a non-party, Apple was not required to
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`meet and confer before filing the Motion. See L.R. 7.1.1 (“Except for civil cases involving pro se
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`parties or motions brought by nonparties…”).
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`***
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`For the foregoing reasons, Apple requests that its Motion for Sanctions be GRANTED
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`and that this Court enter an order (i) finding that Plaintiff, Plaintiff’s counsel, and Mr. Weinstein
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`violated the Protective Order in this case by disclosing designated information without
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`authorization, and admonishing them for doing so, and (ii) award Apple its fees in connection
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`with filing this Motion and any other fees or costs that the Court sees fit.
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`Dated: May 25, 2023
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`Respectfully submitted,
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`DLA PIPER LLP (US)
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`/s/ Brian A. Biggs
`Brian A. Biggs (No. 5591)
`1201 North Market Street, Suite 2100
`Wilmington, DE 19801
`Tel: (302) 468-5700
`brian.biggs@us.dlapiper.com
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`Attorneys for Defendant Apple Inc.
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