Case 5:19-cv-00036-RWS Document 250-1 Filed 03/30/20 Page 1 of 20 PageID #: 9559
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`MAXELL, LTD.,
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`v.
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`APPLE INC.,
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TEXARKANA DIVISION
`
`
`Plaintiff,
`
`Case No. 5:19-cv-00036-RWS
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`JURY TRIAL DEMANDED
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`FILED UNDER SEAL
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`
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`Defendant.
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`
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`DECLARATION OF SAQIB J. SIDDIQUI IN SUPPORT OF
`MAXELL, LTD.’S REPLY IN SUPPORT OF OPPOSED MOTION FOR SANCTIONS
`
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`I, Saqib J. Siddiqui, hereby declare and state as follows:
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`1.
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`I am an attorney at Mayer Brown LLP, counsel for Plaintiff Maxell, Ltd.
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`(“Maxell”) in the above-captioned lawsuit. I submit this declaration in support of Maxell’s Reply
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`in Support of Opposed Motion for Sanctions. I have personal knowledge of the statements
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`herein, and, if called to do so, I could and would testify competently as to the same.
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`2.
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`Attached as Exhibit R is a true and correct copy of a letter sent from James
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`Fussell to Tony Beasley on July 22, 2019.
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`3.
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`Attached as Exhibit S is a true and correct excerpt of the
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` (APL-MAXELL_01307259 – 1308418), produced by Apple on March 6,
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`4.
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`Attached as Exhibit T is a true and correct excerpt of the Rough Transcript for the
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`Deposition of Adam Machalek, held on March 6, 2020.
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`1
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`MAXELL, LTD.,
`
`v.
`
`APPLE INC.,
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TEXARKANA DIVISION
`
`
`Plaintiff,
`
`Case No. 5:19-cv-00036-RWS
`
`JURY TRIAL DEMANDED
`
`FILED UNDER SEAL
`
`
`
`Defendant.
`
`
`
`
`DECLARATION OF SAQIB J. SIDDIQUI IN SUPPORT OF
`MAXELL, LTD.’S REPLY IN SUPPORT OF OPPOSED MOTION FOR SANCTIONS
`
`
`I, Saqib J. Siddiqui, hereby declare and state as follows:
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`1.
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`I am an attorney at Mayer Brown LLP, counsel for Plaintiff Maxell, Ltd.
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`(“Maxell”) in the above-captioned lawsuit. I submit this declaration in support of Maxell’s Reply
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`in Support of Opposed Motion for Sanctions. I have personal knowledge of the statements
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`herein, and, if called to do so, I could and would testify competently as to the same.
`
`2.
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`Attached as Exhibit R is a true and correct copy of a letter sent from James
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`Fussell to Tony Beasley on July 22, 2019.
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`3.
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`Attached as Exhibit S is a true and correct excerpt of the
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`
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` (APL-MAXELL_01307259 – 1308418), produced by Apple on March 6,
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`4.
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`Attached as Exhibit T is a true and correct excerpt of the Rough Transcript for the
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`Deposition of Adam Machalek, held on March 6, 2020.
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`Case 5:19-cv-00036-RWS Document 250-1 Filed 03/30/20 Page 2 of 20 PageID #: 9560
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`5.
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`Attached as Exhibit U is a true and correct copy of a letter sent from Tony
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`Beasley to Jamie Beaber on October 16, 2019.
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`6.
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`Attached as Exhibit V is a true and correct excerpt of
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` (APL-MAXELL_01308419 – 1308477), produced by Apple on March 9, 2020.
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`7.
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`Attached as Exhibit W is a true and correct excerpt of
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` (APL-MAXELL_01308478 – 1308553), produced by Apple on March 9, 2020.
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`8.
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`Attached as Exhibit X is a true and correct excerpt of
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` (APL-MAXELL_01308554 – 01308597), produced by Apple on March 9, 2020.
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`9.
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`Attached as Exhibit Y is a true and correct excerpt of
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` (APL-MAXELL_01308598 – 1308619), produced by Apple on March 9, 2020.
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`10.
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`Attached as Exhibit Z is a true and correct excerpt of the
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` (APL-MAXELL_01445399 – 1445451), produced by Apple on March 18,
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`11.
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`Attached as Exhibit AA is a true and correct excerpt of the
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` (APL-MAXELL_01445560 – 1445634), produced by Apple on March 18,
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`2020.
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`2020.
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`12.
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`Attached as Exhibit BB is a true and correct copy of a letter sent from Marc
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`Pensabene to Jamie Beaber on March 24, 2020.
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`13.
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`Attached as Exhibit CC is a true and correct excerpt of the Rough Transcript for
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`the Deposition of Daniel Borges, held on March 11, 2020.
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`14.
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`Claim 1 of the ’193 Patent includes the following claim element for which Maxell
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`has requested relief to rely on a representative product “controller controls said transmitter so
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`that an open-loop power control is performed and then a closed-loop power control is
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`Case 5:19-cv-00036-RWS Document 250-1 Filed 03/30/20 Page 3 of 20 PageID #: 9561
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`performed according to said power control signal so as to control the transmitted power to
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`converge into a range required by said cell-site station, and said controller controls a gain of
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`said variable amplitude amplifier and a bias condition of said power amplifier using a set of
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`bias and gain data stored in said memory.”
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`15.
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`The below table provides an index of productions made by Apple after November
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`27, 2019. The index provides the date of the production, number of documents produced, number
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`of pages produced, and a high-level summary of the materials included in the production:
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`High-Level Summary of Produced Materials
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`Date
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`12/6/19
`12/13/19
`1/15/20
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`No.
`Documents
`23
`12
`583
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`No.
`Pages
`3,012
`1,251
`83,358
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`1/24/20
`1/31/20
`2/10/20
`2/12/20
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`2/20/20
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`2/28/20
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`15
`20
`96
`3,547
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`299
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`282
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`3/5/20
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`978
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`6,776
`191
`2,348
`7,928
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`66,284
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`10,585
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`21,678
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`3/6/20
`3/9/20
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`3/10/20
`(3/11 est)
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`17
`4
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`597
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`2,826
`201
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`105,071
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`3/12/20
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`315
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`5,885
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`3
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`Case 5:19-cv-00036-RWS Document 250-1 Filed 03/30/20 Page 4 of 20 PageID #: 9562
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`3/13/20
`3/17/20
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`58
`41
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`3/18/20
`3/20/20
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`3/24/20
`TOTAL
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`6
`112
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`365
`7,370
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`23,328
`2,454
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`649
`4,554
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`12,160
`360,539
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`16.
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`On February 20, 2020, Apple confirmed that it added source code to the review
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`computers on February 19, 2020. On March 16, 2020, Apple stated that “Based on Maxell’s
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`recent requests for additional source code, Apple is in the process of updating the source code
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`productions…. We will notify Maxell when those updates are completed, however, due to the
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`closure of our San Francisco office, we uncertain when the updates will be completed.” On
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`March 20, 2020, Apple informed Maxell that amongst this office closure “Apple added source
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`code to the review computers on the following dates: March 10, 13, and 18. The added source
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`code
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`include
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`the
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`following projects:
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`understands that at least s
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` is still forthcoming.
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` Maxell further
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`17.
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`The below table provides an overview of whether each source code project cited
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`in Maxell’s Second Supplemental Infringement Contentions, served on March 13, 2020, had
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`been both produced prior to and addressed by Apple in its November 4, 2019 response to
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`Interrogatory No. 12 (which requests, for each directory of source code made available, that
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`Case 5:19-cv-00036-RWS Document 250-1 Filed 03/30/20 Page 5 of 20 PageID #: 9563
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`Apple identify the accused products and operating system versions to which each directory
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`corresponds):
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`Second Supplemental Infringement Contentions of U.S. Patent No. 8,339,493
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`Cited Source Code Project
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`Produced and Addressed in 11/4/19
`Interrogatory Response to Rog. 12
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`(Projects Not Produced by 11/4/19) /
`(Total Projects Cited)
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`6 / 28 = 21.4%
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`5
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`Case 5:19-cv-00036-RWS Document 250-1 Filed 03/30/20 Page 6 of 20 PageID #: 9564
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`Second Supplemental Infringement Contentions of U.S. Patent Nos. 6,748,317, 6,430,498,
`and 6,580,999
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`Cited Source Code Project
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`Produced and Addressed in 11/4/19
`Interrogatory Response to Rog. 12
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`(Projects Not Produced by 11/4/19) /
`(Total Projects Cited)
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`9 / 38 = 23.6%
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`6
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`Case 5:19-cv-00036-RWS Document 250-1 Filed 03/30/20 Page 7 of 20 PageID #: 9565
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`Second Supplemental Infringement Contentions of U.S. Patent No. 7,116,438
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`Cited Source Code Project
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`Produced and Addressed in 11/4/19
`Interrogatory Response to Rog. 12
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`(Projects Not Produced by 11/4/19) /
`(Total Projects Cited)
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`1 / 24 = 4.1%
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`Second Supplemental Infringement Contentions of U.S. Patent No. 10,084,991
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`Cited Source Code Project
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`Produced and Addressed in 11/4/19
`Interrogatory Response to Rog. 12
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`7
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`Case 5:19-cv-00036-RWS Document 250-1 Filed 03/30/20 Page 8 of 20 PageID #: 9566
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`Cited Source Code Project
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`Produced and Addressed in 11/4/19
`Interrogatory Response to Rog. 12
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`(Projects Not Produced by 11/4/19) /
`(Total Projects Cited)
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`8 / 16 = 50%
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`Second Supplemental Infringement Contentions of U.S. Patent No. 6,928,306
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`Cited Source Code Project
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`Produced and Addressed in 11/4/19
`Interrogatory Response to Rog. 12
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`8
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`PUBLIC VERSION
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`Case 5:19-cv-00036-RWS Document 250-1 Filed 03/30/20 Page 9 of 20 PageID #: 9567
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`Cited Source Code Project
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`Produced and Addressed in 11/4/19
`Interrogatory Response to Rog. 12
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`(Projects Not Produced by 11/4/19) /
`(Total Projects Cited)
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`26 / 53 = 49%
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`Second Supplemental Infringement Contentions of U.S. Patent No. 6,329,794
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`Cited Source Code Project
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`Produced and Addressed in 11/4/19
`Interrogatory Response to Rog. 12
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`9
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`Case 5:19-cv-00036-RWS Document 250-1 Filed 03/30/20 Page 10 of 20 PageID #: 9568
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`*
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`Cited Source Code Project
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`Produced and Addressed in 11/4/19
`Interrogatory Response to Rog. 12
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`(Projects Not Produced by 11/4/19) /
`(Total Projects Cited)
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`17 / 43 = 39.5%
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`Second Supplemental Infringement Contentions of U.S. Patent No. 10,212,586
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`Cited Source Code Project
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`Produced and Addressed in 11/4/19
`Interrogatory Response to Rog. 12
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`10
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`PUBLIC VERSION
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`Case 5:19-cv-00036-RWS Document 250-1 Filed 03/30/20 Page 11 of 20 PageID #: 9569
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`Cited Source Code Project
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`Produced and Addressed in 11/4/19
`Interrogatory Response to Rog. 12
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`(Projects Not Produced by 11/4/19) /
`(Total Projects Cited)
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`3 / 4 = 75%
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`Second Supplemental Infringement Contentions of U.S. Patent No. 6,408,193
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`Maxell did not include the source code projects cited for the ’193 Patent within the
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`Source Code count provided in the brief, as it presents a unique situation. A
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`2019 Interrogatory Response with its most recent March 5, 2020 Interrogatory Response:
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`November 4, 2019 Response
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`. Compare Apple’s November 24,
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`Case 5:19-cv-00036-RWS Document 250-1 Filed 03/30/20 Page 12 of 20 PageID #: 9570
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`March 5, 2020 Response
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`18.
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`As shown in the final chart for the preceding paragraph, Apple has still not
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`produced any source code corresponding to
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` The accused
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`products that include
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` are as follows: iPhone 5S, iPhone 5C, iPad Air (WiFi +
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`Cell), iPad Mini 2 (WiFi + Cell), iPad Mini 3 (WiFi + Cell), iPhone SE, iPad (5th generation)
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`(WiFi + Cell). For the first time on March 24, 2020, Apple informed Maxell that it is Apple’s
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`position that
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`include
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` are plainly outside the scope of discovery” as the products that
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` were discontinued before the relevant damages period. Apple’s sales
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`spreadsheet (APL-MAXELL_00710534) shows that Apple sold such products and recognized
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`revenue of products including
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`19.
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`The source code produced by Apple for
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` appears to
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`be incomplete.
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`Case 5:19-cv-00036-RWS Document 250-1 Filed 03/30/20 Page 13 of 20 PageID #: 9571
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` The
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` are included in one or more of the
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`following accused products: iPhone 7 Plus, iPhone 7, iPad Air (3rd generation) (WiFi + Cell),
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`iPad Pro (11") (WiFi + Cell), iPad Pro (12.9" 3rd generation) (WiFi + Cell), iPad mini (5th
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`generation) (WiFi + Cell), iPhone XS, iPhone XS Max, and iPhone XR.
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`20.
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`The deposition of Adam Machalek was scheduled to occur on March 6, 2020 in
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`California. Mr. Machalek was identified as Apple’s corporate representative regarding, in
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`general, the design, operation, and development of accused power management functionality
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`and/or hardware (related to the asserted ’794 Patent). On the evening of March 5, 2020, at 8:00
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`pm. eastern, Apple made a production of 978 documents. Among the documents produced were
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` Apple did not
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`provide any notice that the March 5, 2020 production contained materials relevant to Mr.
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`Machalek’s deposition. Even so, Maxell’s counsel inquired into the existence of such materials
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`and learned of their relevance. Ex. T, Machalek Rough Dep. Tr. at 178:6-179:6
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`21.
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`To date, Apple has not produced complete
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` Specifically, Apple has not produced complete
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` These materials would have been relevant to Mr. Machalek’s deposition.
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`22.
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`The deposition of Daniel Borges was scheduled to occur on March 11, 2020 in
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`California. Mr. Borges was not a corporate representative, but on February 3, 2020, Maxell
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`Case 5:19-cv-00036-RWS Document 250-1 Filed 03/30/20 Page 14 of 20 PageID #: 9572
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`noticed his 30(b)(1) deposition
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`On March 11, at 12:30 a.m eastern, Apple made a production of 597 documents.
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`23.
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`24.
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`On March 6, 2020, Apple produced
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`Case 5:19-cv-00036-RWS Document 250-1 Filed 03/30/20 Page 15 of 20 PageID #: 9573
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`25.
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`Beginning March 9, 2020, Apple produced
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`Case 5:19-cv-00036-RWS Document 250-1 Filed 03/30/20 Page 16 of 20 PageID #: 9574
`Case 5:19-cv-00036—RWS Document 250-1 Filed 03/30/20 Page 16 of 20 PageID #: 9574
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`Case 5:19-cv-00036-RWS Document 250-1 Filed 03/30/20 Page 17 of 20 PageID #: 9575
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`26.
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`The
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`Apple
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`examples:
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` cite to additional documents and repositories at
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` as shown in the following excerpted
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`27.
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`On March 18, 2020, Apple produced
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`Case 5:19-cv-00036-RWS Document 250-1 Filed 03/30/20 Page 18 of 20 PageID #: 9576
`Case 5:19-cv-00036—RWS Document 250-1 Filed 03/30/20 Page 18 of 20 PageID #: 9576
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`Case 5:19-cv-00036-RWS Document 250-1 Filed 03/30/20 Page 19 of 20 PageID #: 9577
`Case 5:19-cv-00036—RWS Document 250-1 Filed 03/30/20 Page 19 of 20 PageID #: 9577
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`Case 5:19-cv-00036-RWS Document 250-1 Filed 03/30/20 Page 20 of 20 PageID #: 9578
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`28.
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`Apple has not produced
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`I declare under penalty of perjury under the laws of the United States of America that the
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`above is true and correct and that this Declaration was executed on March 25, 2020 in
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`Washington, D.C.
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`Dated: March 25, 2020
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`By:
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`_______________________
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`Saqib J. Siddiqui
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`20
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`PUBLIC VERSION
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