For months, Samsung has been attempting to get relevant
testimony from Apple designer
and named design patent inventor Shin
Nishibori. After court orders and long delays, Mr. Nishibori sat for deposition
with counsel for Apple defending him, but terminated the deposition after two
hours and refused to testify any further.
Samsung then demanded that Apple
produce Mr. Nishibori for trial testimony. When Apple claimed that Mr. Nishibori
was represented by separate counsel and eventually informed Samsung that Mr.
Nishibori had recently resigned from Apple, Samsung served a trial subpoena on
him in Hawaii which he now seeks to quash.
Because Samsung has been unable
to obtain Mr. Nishibori‘s appearance at trial, Samsung has offered deposition
testimony based on his unavailability. Apple now objects to Samsung‘s
designations of the testimony of Mr. Nishibori based on the Court‘s prior order
limiting Mr. Nishibori‘s testimony to issues relevant to functionality. See Dkt.
1553, at 3.
Apple‘s claim that the testimony designated by Samsung is
unrelated to functionality is mistaken, and Samsung should be permitted to
introduce the limited deposition testimony it has for purposes the Court has
previously allowed. Id. Of course, if Mr. Nishibori was not avoiding appearance
at trial, then Samsung would not be so limited in eliciting relevant
testimony.
The portions of Mr. Nishibori‘s testimony that Samsung has
designated are narrow. The total run time of the translated testimony is 11
minutes. The proffered testimony relates exclusively to (1) establishing Mr.
Nishibori‘s background and position at Apple; (2) discussing Mr. Nishibori‘s
efforts to create the ―sony-style‖ design referenced in DX 562; and
(3) providing foundational information regarding DX 562 that will help the jury
understand Samsung‘s arguments that the design patents embodied in Apple‘s
iPhone are functional.
For example, DX 562 contains a reference to a project
―shin‘s been doing with the sony-style chappy,‖ which the author Mr.
Howarth noted ―achieve[d] a much smaller-looking product with a much nicer
shape to have next to your ear and in your pocket.‖ The Court has twice
held that this exhibit is admissible to demonstrate functionality. See Dkt.
1519, at 2; 1545, at 11 (―The Howarth e-mail and . . . Nishibori testimony
are admissible only to show functionality.‖) Mr. Nishibori‘s brief
testimony regarding the timing and nature of his assignment to create the design
alternative referenced in DX 562 therefore relates directly to admissible
evidence and will assist the jury by providing the context and meaning of the
discussion contained in DX 562. That foundational information will help the jury
to better understand the functional considerations mentioned by Mr. Howarth in
DX 562 by providing information regarding the timing and nature of Mr.
Nishibori‘s design work, and the functional influences on the development of the
iPhone. In short, Mr. Nishibori‘s testimony will assist the jury in resolving
Samsung‘s claim that the D‘677 and D‘087 patents are invalid as
functional.
The Court has expressly ruled that DX 562 and Mr. Nishibori‘s
testimony are admissible for that purpose, and should do so again
here.
Significantly, Apple served counter-designations of Mr. Nishibori‘s
testimony and DX 562 as well. Apple apparently wants to use Mr. Nishibori‘s
testimony to provide context to the statements made in DX 562, but Apple does
not want Samsung to be able to do the same. Thus, Apple‘s position is confusing
and inconsistent.
Apple also objects to Mr. Nishibori‘s testimony on the
basis that it allegedly includes testimony that was incorrectly translated from
the original Japanese. Apple‘s objection affects only nine lines of the
designated testimony, at 25:7-15 and 25:21.
In each instance, Apple seeks to
use an alternative translation rendered by a secondary check interpreter, which
differs in only minor respects from the official translation. To the extent that
Apple believes these differences are significant and should therefore be
resolved by the trier of fact, Apple was free to counter-designate the
alternative translation provided by the check interpreter on the record. Apple
failed to make such counter-designations and does not provide any reason to
prevent Samsung from playing Mr. Nishibori‘s testimony as translated by the
official lead interpreter. This, too, is irreconcilable with Apple‘s objections,
which should be overruled.