Case 1:13-cv-00919-JLH Document 544 Filed 05/07/23 Page 1 of 4 PageID #: 55588
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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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`))))))))))
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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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`LETTER TO THE HONORABLE JENNIFER L. HALL
`FROM NEAL BELGAM REGARDING RESPONSE TO THE MOTION FOR
`SANCTIONS FILED BY NON-PARTY APPLE INC.
`
`SMITH, KATZENSTEIN & JENKINS LLP
`Neal C. Belgam (No. 2721)
`Daniel Taylor (No. 6934)
`1000 West Street, Suite 1501
`Wilmington, DE 19801
`(302) 652-8400
`nbelgam@skjlaw.com
`dtaylor@skjlaw.com
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`Attorneys for Plaintiff Arendi S.A.R.L.
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`Of Counsel:
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`SUSMAN GODFREY LLP
`Seth Ard (pro hac vice)
`Max Straus (pro hac vice)
`1301 Avenue of the Americas, 32nd Floor
`New York, NY 10019
`sard@susmangodfrey.com
`mstraus@susmangodfrey.com
`
`John Lahad (pro hac vice)
`1000 Louisiana Street, Suite 5100
`Houston, TX 77002-5096
`jlahad@susmangodfrey.com
`
`Kalpana Srinivasan (pro hac vice)
`1900 Avenue of the Stars, Suite 1400
`Los Angeles, CA 90067
`ksrinivasan@susmangodfrey.com
`
`Kemper Diehl (pro hac vice)
`401 Union Street, Suite 3000
`Seattle, WA 98101-3000
`kdiehl@susmangodfrey.com
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`Dated: May 7, 2023
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`

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`Case 1:13-cv-00919-JLH Document 544 Filed 05/07/23 Page 2 of 4 PageID #: 55589
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`Dear Judge Hall:
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`Plaintiff Arendi S.A.R.L. and its counsel (collectively, “Arendi”) write in response to the
`Motion for Sanctions filed by non-party Apple Inc. (“Apple”) at D.I. 538. Arendi respectfully
`requests that the Court deny the motion and will file a full response on or before May 18, 2023,
`per Local Rule 7.1.2(b). Although Arendi intends to file a timely response to the motion, the
`inflammatory and meritless accusations against Plaintiff’s law firm warranted an immediate
`response.
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`Throughout trial, Arendi repeatedly requested to seal the courtroom whenever it anticipated
`that details of the settlement agreement between Arendi and Apple might be discussed. E.g., Trial
`Tr. (4/26) at 575:21-576:3; 588:23-589:8. Arendi even distributed demonstratives to the jury
`during opening and closing that would obviate the need to discuss in open Court the license
`agreement at issue. Arendi took special precautions to avoid disclosing details of the agreement in
`open court, and twice made requests to seal the courtroom during the examination of Mr. Weinstein
`alone, which is the only examination at issue in Apple’s motion. Id. Apple’s motion points to an
`occasion on April 26, 2023, when—during spontaneous redirect examination—the witness
`mentioned a license amount and damages demand amount at a moment when the courtroom was
`unsealed, in response to a question that did not seek to elicit that information.1 The inadvertent
`disclosure was quickly cured through conditional sealing of the exchange. Id. 655:11-14.
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`Apple’s motion is about something else: the allegation that Arendi and its counsel
`intentionally disclosed this information in bad faith in order to further their litigation goals in other
`cases. Its contention that the disclosure was intentional and deliberate is unsupported, extremely
`troublesome, and not a proper basis for this motion. It is also belied by the record, in which Arendi
`repeatedly asked for sealing every other time the license arose.
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`Apple first alerted the Court to this issue during a break in Mr. Weinstein’s testimony,
`saying that it would file a motion that “evening” to seal the record. Trial Tr. (4/26) 654-55. Apple
`asked that such disclosure not “happen again,” and it never did. Id. The Court asked Plaintiff and
`Defendant whether they had any objection, and both said “no.” Id. The Court then “conditionally
`sealed” the transcript, and it has been under seal ever since. Id. The Court invited Apple to file
`its motion to seal the testimony at issue, and further asked Apple to submit an application
`explaining the basis for sealing this and other information presented at trial. The full colloquy is
`below:
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`Apple’s Counsel: During the last examination, there was some disclosure of Apple's
`confidential information in both the agreement between Apple and Arendi, as well as
`information produced in the previous litigation. So we will be filing something, this
`evening, to seal that portion of the transcript. But if we could make sure that we’re
`protecting that information and sealing the courtroom when it’s presented, so that that
`doesn’t happen again.
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`1 The question on redirect did not ask for any confidential information. See id. at 641:17-19. Apple
`also points to a follow-up question, which referred to the expert’s own opinion on the total amount
`of damages in the two cases, but that question also did not refer to the Apple license amount.
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`1
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`Case 1:13-cv-00919-JLH Document 544 Filed 05/07/23 Page 3 of 4 PageID #: 55590
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`THE COURT: Any objection from the plaintiff?
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`Arendi’s Counsel: No objection.
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`THE COURT: Any objection from the defendant?
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`Google’s Counsel: No, Your Honor.
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`THE COURT: All right. That portion is conditionally sealed. We’ll have you file your
`motion, and then you’ll have an opportunity to make your application for redacting the
`transcript.
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`Apple’s Counsel: Thank you.
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`Trial Tr. (4/26) 654:23-655:14.
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`That appeared to resolve the issue. Arendi is unaware of any members of the public not
`associated with the case who were present in the courtroom at the time of the disclosure. Apple’s
`counsel, who was in the courtroom at the same time, has also not identified any such members of
`the public. Cf. Trial Tr. (4/26) at 512:17-513:11 (The Court: “So based on what I’ve seen so far
`here, we’ve had no one from the public that is not associated with this case in some way that’s
`been excluded from the courtroom. . . . I’ll put on the record that when we’ve sealed the courtroom,
`my understanding is that there were only a couple of people excluded that were related to in-house
`people who weren’t permitted to see confidential information . . . .”).
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`Apple nevertheless filed its motion for sanctions out of the blue. Apple did not meet and
`confer with Arendi prior to filing its motion and did not inform Arendi of its intent to seek sanctions
`in advance of filing.
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`Apple claims it filed its sanctions motion “reluctantly” largely because Arendi “did not
`seek any corrective measures after the fact to mitigate the harm to Apple even after being asked to
`do so by Apple’s counsel.” D.I. 538 at 2. This statement is contradicted by the record. The transcript
`has been “conditionally sealed” from the moment Apple first raised the issue. Trial Tr. (4/26)
`654:23-655:14. Arendi immediately agreed to that protective action. Apple has never identified
`any other corrective measure it believes could be appropriate. From the moment the transcript was
`conditionally sealed, there has been nothing else to do other than adjudicate the broader issue of
`whether any of the pertinent information should be sealed from public view in the first place given
`the law’s strong preference for open proceedings.
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`Apple now complains that Arendi did not join its original motion for sealing, but in the
`original motion to seal, Apple agreed that the parties had properly met and conferred on this issue
`and noted that Arendi did not oppose the request.2 Apple also leaves out other important
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`2 See D.I. 491 (“Apple alerted the Court to this request during trial on April 26, 2023, and pursuant
`to D. Del. L.R. 7.1.1, Apple conferred with Plaintiff and Defendant regarding whether they
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`2
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`Case 1:13-cv-00919-JLH Document 544 Filed 05/07/23 Page 4 of 4 PageID #: 55591
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`background. On the evening of Mr. Weinstein’s testimony, Apple asked Arendi to join its motion
`for sealing, but did not send a draft of its intended motion. While Arendi had already agreed not to
`oppose the request for conditional sealing, Arendi could not agree to join a motion it had not seen.
`Accordingly, Arendi responded to Apple that night, writing “thanks for reaching out. Please send
`us a draft of the motion you’d like us to join.” Apple did not respond, did not further meet and
`confer, and simply filed its motion. That is not remotely close to an instance of failing to take
`“corrective measures,” as Apple’s motion improperly intimates.
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`Apple’s position in its sanctions motion is also at odds with its litigation behavior in this
`case: Apple agreed that the full terms of Apple’s license with Arendi could be shared with Google,
`its competitor. See Trial Tr. (5/2) at 1490:8-12 (Google’s Counsel: “So I do believe both sides are
`going to end up talking about the settlement terms from those various agreements … [W]e do have
`the permission from Apple that our corporate representative, Mr. Choc, can stay in the courtroom
`for the closings regardless of whether they are sealed or not.”).
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`The attacks on Plaintiff’s counsel are absolutely unfounded for other reasons too. As Apple
`is aware, Plaintiff’s counsel sought to exclude from this trial the very damages number that Apple
`now says Arendi intentionally disclosed. Only Google wanted Arendi’s damages demand as to
`Apple to be raised in this case, and Apple willingly gave Google’s counsel access to that number.
`Arendi had moved in limine to preclude any reference to the number at trial. D.I. 460, Ex. 8P.
`Apple’s suggestion that Plaintiff’s counsel would intentionally disclose information at trial that
`Plaintiff sought to exclude in the first instance defies logic.
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`Many of these issues could have been resolved amicably. Unfortunately, that is not the
`course Apple chose. In its forthcoming response, Arendi will explain further why the motion for
`sanctions is meritless. Regardless, to the extent Apple is concerned that Arendi has not “done
`enough” to remedy the issue, Arendi reiterates that it agrees to the continued, conditional sealing
`of the relevant record, as it has all along.
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`Respectfully,
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`/s/ Neal C. Belgam
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`Neal C. Belgam (No. 2721)
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`cc:
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`Clerk of Court (via CM/ECF)
`All Counsel of Record (via CM/ECF)
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`opposed this request to seal. (See 4/26 PM Transcript at 7:4-21.) Both parties indicated that they
`did not. (Id.).”).
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`3
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