November 18, 2013
APPLE INC., a California Corporation, Plaintiff,
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.
ORDER RE: SAMSUNG'S SUBMISSION OF IN CAMERA ARGUMENTS (Re: Docket Nos. 2757, 2772, 2780)
PAUL S. GREWAL, Magistrate Judge.
On November 17 and 18, 2013, Apple, Inc. ("Apple") and Nokia Corporation ("Nokia") filed motions to strike the brief filed in camera on November 15, 2013 by Samsung Electronics Co., LTD., ("Samsung"). Apple and Nokia both decry the brief as an improper, ex parte communication. They argue that without access to some version of the brief, they cannot properly consider, let alone respond to, the "thrust of Samsung's arguments, " thus depriving the court of the "back-and-forth process [that] is, of course, a fundamental feature of our judicial system." In order to preserve this process, say Apple and Nokia, ex parte arguments are only accepted under the "rarest of circumstances, " and those circumstances are not present here.
The court agrees. Although the court agreed to undertake an in camera review of the documents over which Samsung asserted privilege, it never granted Samsung the authority to keep any argument to the court beyond the reach of the other parties. In fact, the court explicitly cautioned Samsung that it would not tolerate further undue efforts to deny Apple and Nokia's outside counsel access to the evidence at the center of this dispute.
In order to ensure that Apple and Nokia have a full and fair opportunity to participate in this process, and so that the court may have the benefit of input from all sides in light of this improper submission, Samsung shall file on the public docket redacted versions of its November 15 brief and accompanying declarations (excluding those exhibits to the declarations over which Samsung asserts attorney-client, work-product, or mediation privilege) by November 19, 2013 at 5:00 p.m. Apple and Nokia may each file a brief of their own on the privilege issue no later than November 21, 2013 at 7:00 p.m. These briefs shall not exceed 15 pages. Having reviewed Samsung's brief and declarations, the court notes that very little in the submission merits redaction. However, given Samsung's actions in this matter so far,  it nonetheless feels compelled to remind Samsung's that broad assertions of plainly unprotected information will not be tolerated. If Samsung attempts wholesale redactions of sections of the documents, the court will have no qualms about requiring the filing of completely unredacted copies quickly thereafter.
IT IS SO ORDERED.