Florian Mueller of Foss Patents is reporting that a new order from Judge Grewal’s handed down on Friday suggests that Samsung and their attorney are likely to face sanction. The matter relates to improper disclosure of improper disclosures of highly confidential business information from Apple’s license agreements with other parties including Nokia, Ericsson, Sharp, and Philips by Samsung’s lawyers to their client, the report said.
Key highlights from Judge Grewal’s latest order (via Foss Patent) include:
- The question at this stage appears to be what sanctions the court should impose on Samsung and Quinn Emanuel:
“Having finally crawled out from under the boxes [full of material submitted for in camera review], it appears to [Judge Grewa] that if anything was breached, it was this court’s protective order, and that sanctions against Samsung and its attorneys are warranted.”
“[F]rom the arguments and evidence submitted, an outline does emerge suggesting sanctions should issue based on the following violations of its protective order: […]”
- Judge Grewal agrees with Apple that Samsung’s assertions of privilege were overreaching. At the very least, the court wants Samsung to provide until November 15 (next Friday) more of a justification for privilege because “the court thus far is unpersuaded that the generic statements in the [privilege] log meet the burden required to claim that protection”. Samsung is given another opportunity for briefing only “out of an abundance of caution”. Also, “[t]he court will not tolerate further efforts to deny outside counsel access to discovery not truly subject to privilege or work product protections”. Judge Grewal notes that “[b]y maintaining these seemingly unwarranted [privilege] claims, Samsung significantly burdens not only Apple and Nokia’s ability to address the sanctions issue, but also the [judge]’s ability to tell the full tale of what he has seen”. As you might imagine, I’m eager to see “the full tale of what [Judge Grewal] has seen” and to share it with you soon.
- Samsung failed to meet the court’s deadlines for submitting material for the in camera review. Footnote 9 says “Samsung submitted the last of its documents only [the day before the order,i.e., Thursday]”.
- There will be some further inquiry by the court into what happened at the June 4 meeting between Nokia and Samsung. Among other things, Nokia will have to produce to Samsung the Powerpoint presentation it used in that meeting.
- A previously unknown fact is that Samsung made what the court considers “wrongful use of the disclosed [information] in preparing for […] its negotiations and arbitrations with Ericsson between May 2012 and May 2013”.
- Ericsson appears to be increasingly interested and involved in this issue. The order also says that “[c]ounsel for Apple, Nokia, and Ericsson may be present for the entirety of all depositions taken in accordance with this order.”
- One of Judge Grewal’s questions relates to the extent to which Apple kept the terms of its license agreements with Nokia, Ericsson, Philips and “Siemans” (sic) confidential. So far I thought this was about license agreements with Nokia, Ericsson, Philips, and Sharp. Now Sharp is not mentioned, but Siemens is. Maybe a future order will shed light on this.
- “Samsung and its counsel are invited to file a brief by December 2, 2013 to show cause why sanctions should not issue for [the identified] violations. Apple and Nokia also may submit a brief by this same date proposing appropriate sanctions. The parties shall address both the legal framework and the evidence relevant to any sanction to be imposed.”