Case5:11-cv-01846-LHK Document1496 Filed07/30/12 Page1 of 8
`
`WILLIAM F. LEE
`william.lee@wilmerhale.com
`WILMER CUTLER PICKERING
`HALE AND DORR LLP
`60 State Street
`Boston, MA 02109
`Telephone: (617) 526-6000
`Facsimile: (617) 526-5000
`
`
`
`MARK D. SELWYN (SBN 244180)
`mark.selwyn@wilmerhale.com
`WILMER CUTLER PICKERING
`HALE AND DORR LLP
`950 Page Mill Road
`Palo Alto, California 94304
`Telephone: (650) 858-6000
`Facsimile: (650) 858-6100
`
`HAROLD J. MCELHINNY (CA SBN 66781)
`hmcelhinny@mofo.com
`MICHAEL A. JACOBS (CA SBN 111664)
`mjacobs@mofo.com
`RACHEL KREVANS (CA SBN 116421)
`rkrevans@mofo.com
`JENNIFER LEE TAYLOR (CA SBN 161368)
`jtaylor@mofo.com
`ALISON M. TUCHER (CA SBN 171363)
`atucher@mofo.com
`RICHARD S.J. HUNG (CA SBN 197425)
`rhung@mofo.com
`JASON R. BARTLETT (CA SBN 214530)
`jasonbartlett@mofo.com
`MORRISON & FOERSTER LLP
`425 Market Street
`San Francisco, California 94105-2482
`Telephone: (415) 268-7000
`Facsimile: (415) 268-7522
`
`
`
`Attorneys for Plaintiff and
`Counterclaim-Defendant APPLE INC.
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`SAN JOSE DIVISION
`
`APPLE INC., a California corporation,
`
`Case No. 11-cv-01846-LHK
`
`Plaintiff,
`
`v.
`
`DECLARATION OF GREGORY JOSWIAK
`IN SUPPORT OF APPLE’S MOTION TO
`SEAL TRIAL EXHIBITS
`
`
`
`SAMSUNG ELECTRONICS CO., LTD., a
`Korean corporation; SAMSUNG
`ELECTRONICS AMERICA, INC., a New
`York corporation; and SAMSUNG
`TELECOMMUNICATIONS AMERICA,
`LLC, a Delaware limited liability company,
`
`Defendants.
`
`
`
`DECLARATION OF GREGORY JOSWIAK ISO MOTION TO SEAL TRIAL EXHIBITS
`CASE NO. 11-CV-01846-LHK
`sf-3176932
`
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`SIGHTSOUND TECHNOLOGIES, LLC
`EXHIBIT 2109
`CBM2013-00020 (APPLE v. SIGHTSOUND)
`PAGE 000001
`
`

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`Case5:11-cv-01846-LHK Document1496 Filed07/30/12 Page2 of 8
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`I, Gregory Joswiak, hereby declare as follows:
`1.
`
`I am a Vice President in Apple’s Product Marketing department. I submit this
`
`declaration in support of Apple’s motions regarding sealing, filed contemporaneously herewith. I
`
`have personal knowledge of the matters set forth below. If called as a witness I could and would
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`competently testify as follows.
`2.
`
`I understand Apple seeks to seal highly sensitive documents that disclose Apple’s
`
`market research and strategy. If disclosed to the public, this information would expose Apple to
`
`serious competitive harm.
`3.
`
`I understand that Samsung has selected as potential trial exhibits in this action
`
`eight of the quarterly iPhone buyer survey reports that compile and analyze results obtained from
`
`the monthly surveys of iPhone buyers that Apple conducts. The surveys reveal, country-
`
`by-country, what is driving our customers to buy Apple’s iPhone products versus other products
`
`such as the Android products that Samsung sells, what features they most use, our customers’
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`demographics and their level of satisfaction with different aspects of iPhone.
`4.
`
`I understand that Samsung has also selected six iPad tracking studies as potential
`
`trial exhibits. These are very similar in nature to the iPhone buyer surveys. On a quarterly basis,
`
`these studies report on and analyze results obtained from surveys of iPad buyers that Apple
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`conducts every month. These reports are also international in scope, and report on, and compare,
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`for different countries, what is driving our customers’ decisions to purchase iPad, provide detailed
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`information on the features and attributes they use, customer demographics, consideration of
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`other brands and level of satisfaction with different attributes of the product.
`5.
`
`Apple seeks to seal all surveys and tracking studies of iPhone and iPad buyers. No
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`competitor has access to our customer base to conduct the type of in-depth analysis contained in
`
`our buyer surveys and tracking studies. Getting access to this analysis would be of enormous
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`benefit to our competitors. Today, a competitor who is trying to take away Apple market share
`
`can only speculate as to the importance that Apple’s customers place, for instance, on FaceTime
`
`video calling, battery life, or Siri voice capability. They have to guess as to what demographics –
`
`age, gender, occupation – are most satisfied with Apple’s products. Certainly, they do not know
`DECLARATION OF GREGORY JOSWIAK ISO MOTION TO SEAL TRIAL EXHIBITS
`CASE NO. 11-CV-01846-LHK
`sf-3176932
`
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`1
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`PAGE 000001
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`Case5:11-cv-01846-LHK Document1496 Filed07/30/12 Page3 of 8
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`how the preferences of customers in, for example, Japan differ from those in Australia, Korea,
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`France or the United States. Perhaps most importantly, they are unable to observe trends over
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`time. All of that information is set out in exacting detail in the proposed exhibits. No other entity
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`could replicate this research because no other entity has access to the customer base that Apple
`
`has. And no other entity could replicate the trend data by conducting its own survey today.
`6.
`
`Also important are the conclusions Apple has drawn from the data. Knowing
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`about Apple’s customer base preferences is extremely useful to a competitor, but knowing what
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`Apple thinks about its customer base preferences is even more valuable. If Apple had access to
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`this kind of in-depth analysis of our competitors, we could infer what product features our
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`competitors are likely to offer next, when, and in what markets. Our probability of success in
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`predicting our competitors’ next move next would improve dramatically. Having that level of
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`insight and confidence in our competitors’ next moves would allow us to target our efforts to
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`prepare products and marketing counterstrategies in the short term, and target our long-term
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`product plans to stay far ahead of the competition. Given unfettered access to Apple’s recent
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`internal market research, I have no doubt that Apple’s competitors would use it as described
`
`above, resulting in serious competitive harm to Apple.
`7.
`
`Because of the extreme sensitivity of this product research information,
`
`distribution of the iPhone buyer surveys and iPad tracking studies is very tightly controlled within
`
`Apple. The documents are stamped as confidential on a “need to know” basis. Consistent with
`
`this designation, no internally conducted surveys of Apple customers are allowed to circulate
`
`outside a small, select group of Apple executives. No iPhone-related surveys or iPad-related
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`surveys are allowed to be distributed to anyone outside this group without my personal express
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`permission, which I regularly refuse. When I do approve further distribution, it is almost always
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`on a survey question-by-survey question basis, and even then distribution is limited to individuals
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`who have a demonstrated need to know.
`8.
`
`Trial Exhibit DX614 is the iPhone buyer survey report for the one month period of
`
`August 2010. Trial Exhibit DX772 is the iPhone buyer survey report for the second quarter of
`
`Apple’s 2010 fiscal year (“FY ’10 Q2”). Trial Exhibit DX773 is the iPhone buyer survey report
`DECLARATION OF GREGORY JOSWIAK ISO MOTION TO SEAL TRIAL EXHIBITS
`CASE NO. 11-CV-01846-LHK
`sf-3176932
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`2
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`PAGE 000002
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`Case5:11-cv-01846-LHK Document1496 Filed07/30/12 Page4 of 8
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`for FY ’10 Q3. Trial Exhibit DX774 is the iPhone buyer survey report for FY ’10 Q4. DX775 is
`
`the iPhone buyer survey report for FY ’11 Q1. Trial Exhibit DX534 is the iPhone buyer survey
`
`report for FY ’11 Q2. DX776 is the iPhone buyer survey report for FY ’11 Q3. Trial Exhibit
`
`DX767 is the iPhone buyer survey report for FY ’11 Q4. Each of these documents follows a
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`substantially similar format, reporting on the same type of information for iPhone buyers from
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`surveys conducted during the period of time that it covers. During this time there was a slight
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`change to some of the countries on whom we report internationally, but otherwise the reports are
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`quite similar.
`9.
`
`Each of the eight iPhone buyer survey reports listed in paragraph 8 above are
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`treated as highly confidential within Apple and are distributed only to a very limited group and on
`
`a need to know basis, as described in paragraph 7 above. Public disclosure of these reports would
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`cause significant competitive harm to Apple for the reasons described above. It would allow
`
`competitors to target the features that most attract our customers, to learn precisely how different
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`demographic groups of customers and customers in geographic regions view our products and
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`how they make use of them. The survey reports contain the conclusions Apple has drawn from
`
`the data. In addition, because these reports span a 2 year period beginning in the second quarter
`
`of 2010, they show the trend as to how this data has changed over time. We consider each of
`
`these eight iPhone buyer survey reports to be current and to contain information of which we
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`make active use. The earliest survey report, for the month of August 2010, covers iPhone 4, a
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`phone which Apple still actively markets and sells today. No competitor could replicate this
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`information without obtaining the information internally from Apple.
`10.
`
`DX768 is the iPad tracking study for the one month period of July 2010, created in
`
`September 2010. DX769 is the iPad tracking study for FY ’10 Q4. DX770 is the iPad tracking
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`study for FY ’11 Q1. DX617 is the iPad tracking study for FY ’11 Q2. DX771 is the iPad
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`tracking study for FY ’11 Q3. DX766 is the iPad tracking study for FY ’11 Q4. As is the case
`
`with the iPhone buyer surveys discussed in this declaration, each of these iPad tracking studies
`
`follows a substantially similar format, and reports and analyses data in response to surveys
`
`containing the same types of questions for the period of time that they address.
`DECLARATION OF GREGORY JOSWIAK ISO MOTION TO SEAL TRIAL EXHIBITS
`CASE NO. 11-CV-01846-LHK
`sf-3176932
`
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`3
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`PAGE 000003
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`11.
`
`Apple strictly maintains the confidentiality of each of these iPad tracking studies
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`in accordance with the procedures described in paragraph 7 above. Public disclosure of the
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`studies would seriously harm Apple. As with the iPhone buyer studies, it would give our
`
`competitors full access from surveys conducted of our customer database to the reasons why our
`
`customers purchase iPads, how they make use of them and their level of satisfaction broken down
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`by demographics and country, as well as to the conclusions that Apple itself has drawn from this
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`data. Together, the five surveys show how this data has changed over the past two years. We
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`still consider all of this information to be current and make use of it in our marketing and product
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`decisions. When iPad was first released in April 2010, there was no other product of its kind.
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`Obtaining information from July 2010 would be incredibly valuable to companies who are trying
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`to put forward competing products. It shows in great detail how customer preferences have
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`evolved over the time that iPad has been sold. Even if competitors could reliably survey Apple’s
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`current customers (they cannot) to determine their preferences today, they certainly cannot
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`reliably reconstruct what Apple customer’s preferences were in the past. Accordingly only Apple
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`has access to the extremely valuable time series of information that shows how customer
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`preferences have evolved. As the first company to successfully launch a tablet computer with
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`broad consumer appeal, Apple is far ahead of its competitors in understanding this important new
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`category of mobile electronic devices. Both the underlying data sets and the insights Apple has
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`drawn from them are carefully guarded Apple trade secrets. Disclosure to Apple’s competitors
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`would give them inside knowledge of the market and what Apple’s customers are thinking and
`
`valuing.
`12.
`
`I wish to add that Apple is not seeking to seal all of its marketing research
`
`documents in this action. In particular, Apple has made the difficult decision not to seek sealing
`
`of certain marketing research reports that report survey results on iPhone or iPad that were not
`
`limited to Apple’s customer base. Some of these reports were created by third party ComTech.
`
`Others were created by Apple’s internal marketing research department. Apple has expended
`
`significant effort and expense gathering the information in these different reports and surveys,
`
`and internally treats these documents on a strictly confidential basis as well. However, I
`DECLARATION OF GREGORY JOSWIAK ISO MOTION TO SEAL TRIAL EXHIBITS
`CASE NO. 11-CV-01846-LHK
`sf-3176932
`
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`4
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`PAGE 000004
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`

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`Case5:11-cv-01846-LHK Document1496 Filed07/30/12 Page6 of 8
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`understand that the Court wants the parties to restrict their requests to seal to only their most
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`sensitive confidential information. We view the iPhone buyer surveys and iPad tracking studies,
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`and similar surveys taken of our Apple customer database, which cannot be replicated by
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`competitors, as the crown jewels of the marketing research group.
`13.
`
`There is one additional document containing Apple’s marketing research that
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`Apple is seeking to seal. Exhibit DX701 is a summary that I understand was created by Samsung.
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`It reports data taken from the iPhone quarterly buyer surveys and the iPad tracking surveys
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`discussed above. Pages 1 through 3 explicitly state that they report actual data taken from the
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`iPhone quarterly buyer surveys covering Q2 2010 through Q4 2011 relating to the importance of
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`features to the consumers’ iPhone purchase, and other brands that were considered. Pages 7
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`through 9 consist of actual data taken from iPhone quarterly buyer surveys and iPad tracking
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`studies for the period June 2010 through Q2 2011 in the case of page 7 and Q4 2011 for pages 8
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`and 9. These pages report on the importance of features to consumers’ decisions to purchase an
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`iPhone or iPad. As I described above, this summary reports data that can only be obtained from
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`Apple’s customer base, which no competitor can replicate. As reported in this format, it contains
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`precisely the type of trend data that Apple believes is valuable in evaluating purchase decisions.
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`This information would be of great value to any competitor who is trying to take away Apple
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`market share for iPhone or iPad because it shows the importance that Apple’s customers place on
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`features or attributes such as screen size, weight, battery life and camera capability. Consistent
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`with the approach that Apple has taken to sealing other marketing research documents, Apple is
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`not requesting to seal pages 4 through 6 of exhibit 701, which report information obtained from a
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`third party report commissioned by Apple, even though I believe that such data would still be of
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`value to competitors and Apple has taken steps to guard the confidentiality of this data as well.
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` declare under penalty of perjury that the foregoing is true and correct. Executed this
`
` I
`
`30th day of July, 2012 at Cupertino, California.
`
`DECLARATION OF GREGORY JOSWIAK ISO MOTION TO SEAL TRIAL EXHIBITS
`CASE NO. 11-CV-01846-LHK
`sf-3176932
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`PAGE 000005
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`

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`Case5:11-cv-01846-LHK Document1496 Filed07/30/12 Page7 of 8
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`/s/ Gregory Joswiak
`Gregory Joswiak
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`DECLARATION OF GREGORY JOSWIAK ISO MOTION TO SEAL TRIAL EXHIBITS
`CASE NO. 11-CV-01846-LHK
`sf-3176932
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`PAGE 000006
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`Case5:11-cv-01846-LHK Document1496 Filed07/30/12 Page8 of 8
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`ATTESTATION OF E-FILED SIGNATURE
`I, Jason R. Bartlett, am the ECF User whose ID and password are being used to file this
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`Declaration. In compliance with General Order 45, X.B., I hereby attest that Greg Joswiak has
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`concurred in this filing.
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`Dated: July 30, 2012
`
`
`
`
` /s/ Jason R. Bartlett
`Jason R. Bartlett
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`DECLARATION OF GREGORY JOSWIAK ISO MOTION TO SEAL TRIAL EXHIBITS
`CASE NO. 11-CV-01846-LHK
`sf-3176932
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`PAGE 000007