Apple, Nokia Blast Samsung for Ducking Costs

     SAN JOSE, Calif. (CN) – Apple and Nokia blasted Samsung for hiding behind privilege in a fight over sanctions for leaking secret licensing agreements to hundreds of its employees worldwide.
     This past October, U.S. Magistrate Judge Paul Grewal disclosed that during the massive discovery ahead of the first iPhone-Galaxy patent trial in 2012, Samsung’s outside counsel sent unredacted key terms of Apple’s licensing agreements with Nokia, Ericsson, Sharp and Philips to Samsung headquarters despite a protective order.
     Samsung’s outside counsel from the firm Quinn Emanuel posted the information on an FTP site accessible by Samsung personnel and emailed employees with access instructions for the site, according to Grewal. Then the lawyers emailed the agreements – marked “Highly Confidential, Attorney Eyes Only” – several times to over 50 different Samsung employees and high-ranking licensing executives.
     After privately examining hundreds of documents related to the incident, Grewal ordered Samsung to reimburse Apple and Nokia for the costs of litigating the discovery breach – declining to slap the South Korean company with the deeper sanctions called for by the other companies.
     But earlier this month, Samsung questioned Grewal’s award of fees to Apple and Nokia, calling the companies’ breach allegations a “scorched-earth discovery expedition.” The company also balked at a finding that Samsung had waived its right to claim privilege for several documents Grewal examined in the discovery kerfuffle.
     In a pair of scathing responses, both Apple and Nokia lambasted Samsung for using privilege to duck paying the sanctions. Writing for Apple, attorney Mark Selwyn of the firm WilmerHale reminded Samsung that it waived privilege when it made affirmative use of the documents throughout the sanctions hearings.
     “Waiver occurred when Samsung and its employees selectively disclosed certain content of these documents – including representations about what the documents supposedly disclose and do not disclose – while concealing other portions under the guise of privilege,” Selwyn wrote.
     Samsung also failed to demonstrate the need for privilege when it submitted declarations from just 16 of the hundreds of employees who saw the confidential documents. And its violation of the protective order in the first place is the final nail in the coffin under the crime-fraud exception, Selwyn added.
     In a much longer response, Nokia lawyer Ryan Koppelman of the firm Alston & Bird said that it took Samsung and Quinn Emanuel eight months to admit to violating the protective order, and only did so when the evidence became too strong to ignore. Admitting guilt earlier would have saved Nokia all the costly troubles Samsung now complains about, Koppelman added.
     “Nokia’s work – often pursuant to court order, and more often the result of Samsung’s obstructionist litigation or discovery tactics – was necessary to establish even the basic facts of Samsung’s protective order violations,” Koppelman wrote. “And Nokia succeeded on its claims. Samsung’s motion for relief should be denied.”
     A hearing is slated for Aug. 28.

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