Case 3:16-cv-02787-WHO Document 448 Filed 02/05/19 Page 1 of 8
`
`QUINN EMANUEL URQUHART & SULLIVAN, LLP
`Charles K. Verhoeven (Bar No. 170151)
`charlesverhoeven@quinnemanuel.com
`David A. Perlson (Bar No. 209502)
`davidperlson@quinnemanuel.com
`50 California Street, 22nd Floor
`San Francisco, California 94111
`Telephone: (415) 875-6600
`Facsimile: (415) 875-6700
`Kevin P.B. Johnson (Bar No. 177129)
`kevinjohnson@quinnemanuel.com
`Victoria F. Maroulis (Bar No. 202603)
`victoriamaroulis@quinnemanuel.com
`555 Twin Dolphin Drive, 5th Floor
`Redwood Shores, California 94065
`Telephone: (650) 801-5000
`Facsimile: (650) 801-5100
`Attorneys for Samsung Electronics Co., Ltd.,
`Samsung Electronics America, Inc., and
`Samsung Research America, Inc.
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
`CASE NO. 16-cv-02787-WHO
`HUAWEI TECHNOLOGIES CO., LTD., et al.,
`Plaintiffs,
`
`SAMSUNG’S OBJECTION TO
`HUAWEI’S REPLY EVIDENCE OR,
`IN THE ALTERNATIVE, FOR
`LEAVE TO FILE A SUR-REPLY TO
`HUAWEI’S REPLY IN SUPPORT OF
`ITS MOTION TO STRIKE THE
`JURY DEMAND FOR SAMSUNG’S
`BREACH OF CONTRACT
`COUNTERCLAIM
`Hearing Date: February 13, 2019
`Time: 2:00 p.m.
`Place: Courtroom 2, 17th Floor
`Judge: Hon. William H. Orrick
`
`v.
`SAMSUNG ELECTRONICS CO., LTD., et al.,
`Defendants.
`
`SAMSUNG ELECTRONICS CO., LTD. &
`SAMSUNG ELECTRONICS AMERICA, INC.
`Counterclaim-Plaintiffs,
`
`v.
`HUAWEI TECHNOLOGIES CO., LTD.,
`HUAWEI DEVICE USA, INC., HUAWEI
`TECHNOLOGIES USA, INC., & HISILICON
`TECHNOLOGIES CO., LTD.
`Counterclaim-Defendants.
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`Case No. 16-cv-02787-WHO
`SAMSUNG’S OBJECTION TO HUAWEI’S REPLY EVIDENCE OR, IN THE ALTERNATIVE, FOR LEAVE TO
`FILE A SUR-REPLY
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`

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`Case 3:16-cv-02787-WHO Document 448 Filed 02/05/19 Page 2 of 8
`
`TABLE OF CONTENTS
`
`CONTENTS
`
`Page
`
`INTRODUCTION..................................................................................................................1
`BACKGROUND....................................................................................................................1
`ARGUMENT .........................................................................................................................2
`A.
`The Court Should Strike Huawei’s New Reply Evidence and the Arguments
`Based On It Because Huawei Could Have, But Chose Not To, Present
`Them In Support of Its Motion. .................................................................................2
`Huawei’s New Reply Evidence and Arguments are Improper Rebuttal and
`Should Be Stricken.....................................................................................................4
`In The Alternative, Samsung Should Be Permitted to Respond to Huawei’s
`New Reply Evidence and Arguments. .......................................................................5
`CONCLUSION ......................................................................................................................5
`
`C.
`
`B.
`
`I.
`II.
`III.
`
`IV.
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`-ii-
`Case No. 16-cv-02787-WHO
`SAMSUNG’S OBJECTION TO HUAWEI’S REPLY EVIDENCE OR, IN THE ALTERNATIVE, FOR LEAVE TO
`FILE A SUR-REPLY
`
`

`

`Case 3:16-cv-02787-WHO Document 448 Filed 02/05/19 Page 3 of 8
`
`I.
`
`INTRODUCTION
`
`Samsung requests that pursuant to N.D. Cal. Civ. Local Rule 7-3 (D)(1) the Court strike
`from Huawei’s Reply in Support of Its Motion to Strike the Jury Demand for Samsung’s Breach of
`Contract Counterclaim (“Reply”) the following improper portions of the brief and supporting
`materials:
`
` The third paragraph of § II.A.2 of the Reply (Dkt. 443 at 8:12-9:5);
`§ II.B of the Reply (Dkt. 443 at 9:24-11:9);
`
` Ex. 6 to the Reply Greenblatt Declaration (Dkt. 443-2);
`¶¶ 4, 6, n.7 of the Raynard Reply Declaration (Dkt. 443-3 at 2:23-3:8, 4:9-20, 5:27-28);
`
` Exs. A - E to the Raynard Reply Declaration (Dkt. 443-4; 443-5; 443-6; 443-7; 443-8).
`In the alternative, Samsung requests that the Court grant leave for Samsung to file its sur-reply
`(attached hereto as Exhibit 1) addressing these specific portions of Huawei’s reply submissions.
`II.
`BACKGROUND
`On January 7, 2017, Huawei filed a Motion to Strike the Jury Demand for Samsung’s Breach
`of Contract Counterclaim (“Motion”), Dkt. 434, along with a declaration from Professor Raynard
`(“Raynard Declaration”) and supporting exhibits. On January 22, 2019, Samsung filed an
`Opposition (“Opposition”), Dkt. 439, and supported its rebuttal arguments with a declaration from
`Professor Jean-Sebastian Borghetti (“Borghetti Declaration”). On January 29, 2019, Huawei filed
`a Reply, Dkt. 443, that presented new evidence, raised new arguments, and submitted a further
`declaration from Professor Raynard (“Raynard Reply Declaration”) offering new opinions on the
`new evidence and arguments. For example, Huawei’s Reply raised the new arguments that “French
`law requires that breach of contract damages be an ‘immediate and direct consequence of the non-
`performance’ of the contract,” id. at 8, “U.S. federal procedural law governs an award of expert fees
`(as opposed to attorneys’ fees) as such an award is considered strictly procedural for Erie doctrine
`purposes,” id. at 2, and that “expert fees can only be reimbursed pursuant to Article 700 of the
`French Code of Civil Procedure,” id. at 13 (citing Raynard Reply Decl. ¶ 6).
`
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`Case No. 16-cv-02787-WHO
`SAMSUNG’S OBJECTION TO HUAWEI’S REPLY EVIDENCE OR, IN THE ALTERNATIVE, FOR LEAVE TO
`FILE A SUR-REPLY
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`Case 3:16-cv-02787-WHO Document 448 Filed 02/05/19 Page 4 of 8
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`III.
`
`ARGUMENT
`
`The Court should strike the new evidence and arguments that Huawei presented for the first
`time in its Reply or, in the alternative, grant Samsung leave to file a sur-reply to address the new
`evidence and arguments. Civ. L. R. 7-3(D)(1); see Dutta v. State Farm Mut. Auto. Ins. Co., 895
`F.3d 1166, 1171 (9th Cir. 2018) (“The [Northern] district court’s Rule 7-3(d) provides the aggrieved
`party with the opportunity to object to the district court’s consideration of the newly submitted
`evidence or to request leave to file a sur-reply opposition to it.”); see also Kolker v. VNUS Med.
`Techs., No. C 10-00900 SBA, 2012 WL 161266, at *6 (N.D. Cal. Jan. 17, 2012) (“It is improper for
`a moving party to introduce in a reply brief new facts or different legal arguments than those
`presented in the moving papers.”) (internal citations removed); see also In re Rains, 428 F.3d 893,
`902 (9th Cir. 2005) (affirming the district court’s decision to not address an argument that was only
`raised in the reply brief).
`A.
`The Court Should Strike Huawei’s New Reply Evidence and the Arguments
`Based On It Because Huawei Could Have, But Chose Not To, Present Them In
`Support of Its Motion.
`Where, as here, the party bearing the burden (Huawei) fails to support its motion with
`evidence and argument that it later offers only on reply, the Court should strike the new evidence
`and argument. In Single Touch Interactive, Inc. v. Zoove Corp., the Court refused to consider an
`expert declaration that was “new evidence offered for the first time on reply” in ruling on the motion
`at issue. No. 12-CV-831 YGR, 2013 WL 3802805, at *1 (N.D. Cal. July 17, 2013). Similarly, in
`In re Flash Memory Antitrust Litig., noting that “the Court does not consider new arguments or
`evidence presented for first time in a reply,” the Court refused to consider Plaintiff’s expert reply
`declaration where the new evidence submitted fell within the Plaintiff’s initial burden on the issue
`and the Court concluded “such evidence should have been proffered with Plaintiffs' moving papers
`in order to afford Defendants a full and fair opportunity to respond.” No. C 07-0086 SBA, 2010
`WL 2332081, at *15 (N.D. Cal. June 9, 2010).
`The Court should take a similar approach here with respect to Huawei’s new evidence and
`arguments. First, the Court should strike the new argument in the Reply regarding the alleged
`consequences of the “immediate and direct” causation requirement of French law. See Reply at 8-
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`Case No. 16-cv-02787-WHO
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`FILE A SUR-REPLY
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`Case 3:16-cv-02787-WHO Document 448 Filed 02/05/19 Page 5 of 8
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`9. Huawei effectively acknowledges this is a new argument by tying it to a statement in a textbook.
`See id. at 8 (quoting Dkt. 443-2 at 225). Huawei devoted a significant portion of its Motion and
`accompanying exhibits to issues of French law, but failed to present this evidence, or even to raise
`this argument, until its Reply. See generally Mot. at 9-10, Raynard Decl., Dkt. 434-4. This new
`evidence and argument should be stricken.
`Second, the Court should strike Huawei’s new contentions that any and all claims for
`experts’ fees, even when, as here, they are caused by a breach of contract, are nevertheless always
`and exclusively procedural under the Erie doctrine. See Reply at 9-11. This is a new legal argument
`that “should have been proffered” with Huawei’s moving papers.
`In re Flash Memory Antitrust
`Litig., 2010 WL 2332081, at *15.
`Huawei cannot justify its failure to make these arguments in its Motion. Huawei cannot
`credibly argue that it was unaware of Samsung’s contention that certain expert fees are recoverable
`as damages caused by Huawei’s breach of FRAND, and throughout its Motion, Huawei explicitly
`acknowledged that Samsung told Huawei it would claim litigation costs as damages for the breach
`of contract counterclaim. See, e.g., Mot. at 3-4 (“Samsung … stated that the damages included
`‘litigation costs and other business costs’”; “’Samsung has suffered injury including but not limited
`to substantial litigation costs’”; “’Samsung’s injury … is comprised of the cost of multiple
`litigations, attorneys’ fees, and the experts’ fees.’”). But Huawei chose to focus the arguments in
`its opening brief on attorneys’ fees. Huawei does not dispute this exclusive focus on Reply, but
`instead points to two statements in the original Raynard Declaration addressing both litigation costs
`and attorney fees, identifying no argument in its brief at all. See Reply at 11.
`Huawei cannot have it both ways. It could have argued in its Motion that breach of contract
`damages must be immediate and direct under French law or that litigation costs, such as experts’
`fees, are exclusively covered by federal procedural rules under the Erie doctrine. Instead, it chose
`to focus on the attorneys’ fees argument. The Court should strike the new arguments. See Kolker,
`2012 WL 161266, at *6 (declining to consider a new summary judgment contention raised in a reply
`brief); Nuvo Research Inc. v. McGrath, No. C 11-4006 SBA, 2012 WL 1965870, at *5 (N.D. Cal.
`May 31, 2012) (declining to consider a new motion to dismiss argument raised in a reply brief).
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`Case No. 16-cv-02787-WHO
`SAMSUNG’S OBJECTION TO HUAWEI’S REPLY EVIDENCE OR, IN THE ALTERNATIVE, FOR LEAVE TO
`FILE A SUR-REPLY
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`For the same reasons, the Court should strike the additional new opinions and evidence
`raised in the Raynard Reply Declaration and accompanying exhibits. “It is improper for a moving
`party to introduce in a reply brief new facts.” Kolker, 2012 WL 161266, at *6; see also World
`Lebanese Cultural Union, Inc. v. World Lebanese Cultural Union of New York, Inc., No. C 11-
`01442 SBA, 2011 WL 5118525, at *6 (N.D. Cal. Oct. 28, 2011) (“New evidence or analysis
`presented for the first time in a reply is improper and will not be considered.”). The Raynard Reply
`Declaration contains new facts that should have been in Huawei’s Motion. Specifically, it contains
`new facts regarding the allegedly exclusive applicability of Article 700 of the French Code of Civil
`Procedure to recovery of experts’ fees (see Raynard Reply Decl. ¶ 4, Exs. E & C) and additional
`case law purportedly addressing Article 700 in the context of witness fees (see id. Ex. A, ¶ 6, Exs.
`B & D, n. 7). Consequently, these opinions and evidence should be stricken.
`B.
`Huawei’s New Reply Evidence and Arguments are Improper Rebuttal and
`Should Be Stricken.
`
`The new Reply evidence is not responsive to arguments made in Samsung’s Opposition.
`Huawei’s new argument and accompanying treatise regarding “immediate and direct” causation
`under French law is not a proper rebuttal to the Opposition. Both the Motion and the Opposition
`focus on the damages disclosure, not on whether the disclosure conformed to the alleged French law
`“immediate and direct” requirement. Next, Huawei did not present, and therefore Samsung did not
`proffer in rebuttal, arguments about whether federal procedural laws would exclusively apply to
`Samsung’s contract damages. See Opp. at 8-9. Huawei’s Erie doctrine arguments are not
`responsive to Samsung’s Opposition. Similarly, the new evidence and arguments in the Raynard
`Reply Declaration are not proper rebuttal to Samsung’s Opposition. The Raynard Reply Declaration
`attempts to introduce new exhibits and sources. See Raynard Reply Decl. ¶¶ 4-6, n. 7, and Exs. A-
`E. This new evidence raises novel issues such as additional French case law, articles of the French
`Code of Civil Procedure, scholars’ books, and legal treatises. See Docusign, Inc. v. Sertifi, Inc., 468
`F. Supp. 2d 1305, 1307 (W.D. Wash. 2006) (striking new evidence and arguments on reply,
`including an expert declaration that “references a host of new evidence and information, and
`provides ten pages of new expert opinion on claim construction” as these issues “should have been
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`Case No. 16-cv-02787-WHO
`SAMSUNG’S OBJECTION TO HUAWEI’S REPLY EVIDENCE OR, IN THE ALTERNATIVE, FOR LEAVE TO
`FILE A SUR-REPLY
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`addressed in the opening brief” and are “inappropriate for Reply”). The Court should strike
`Huawei’s new evidence and arguments from its Reply.
`C.
`In The Alternative, Samsung Should Be Permitted to Respond to Huawei’s
`New Reply Evidence and Arguments.
`
`In the alternative, Samsung requests that the Court grant leave for Samsung to file the sur-
`reply attached hereto as Exhibit 1, which responds to the new Reply evidence and argument. Courts
`in this District regularly grant a sur-reply “[t]o alleviate any possible prejudice to Defendants.”
`Senne v. Kansas City Royals Baseball Corp., No. 14-CV-00608-JCS, 2017 WL 897338, at *13
`(N.D. Cal. Mar. 7, 2017) (accepting a sur-reply where plaintiffs, on reply, proffered an expert
`declaration in support, even though this expert declaration did not present new evidence); Balfour
`Beatty Infrastructure, Inc. v. PB&A, Inc., No. 16-CV-01152-WHO, 2017 WL 956650, at *1 (N.D.
`Cal. Mar. 13, 2017) (denying motion to strike based on Civil L. R. 7-3(d)(3), but accepting sur-reply
`in response to reply evidence instead); see also Dutta, 895 F.3d at 1171 (“Where the opposing party
`believes he has been unfairly disadvantaged by a new factual matter included in a reply affidavit or
`declaration… the aggrieved party” may “request leave to file a sur-reply opposition to it.”).
`Without a sur-reply, Samsung will likely be prejudiced, as it will be deprived of its
`opportunity to respond in writing to Huawei’s new arguments. “As a general rule, new evidence
`presented in a reply should not be considered without giving the non-movant an opportunity to
`respond.” In re: Lenovo Adware Litig., No. 15-MD-02624-RMW, 2016 WL 6277245, at *14 (N.D.
`Cal. Oct. 27, 2016); see also Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996) (“[W]here new
`evidence is presented in a reply to a motion for summary judgment, the district court should not
`consider the new evidence without giving the [non-]movant an opportunity to respond.”) (alteration
`in original) (citation omitted). If Huawei’s new arguments and evidence are not stricken, Samsung
`should have an opportunity to respond to them in writing.
`IV.
`CONCLUSION
`
`For the foregoing reasons, Samsung respectfully requests that this Court either strike the new
`evidence and arguments contained in Huawei’s Reply, or grant Samsung leave to file a sur-reply.
`
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`Case No. 16-cv-02787-WHO
`SAMSUNG’S OBJECTION TO HUAWEI’S REPLY EVIDENCE OR, IN THE ALTERNATIVE, FOR LEAVE TO
`FILE A SUR-REPLY
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`Case 3:16-cv-02787-WHO Document 448 Filed 02/05/19 Page 8 of 8
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`DATED: February 5, 2019
`
`Respectfully submitted,
`
`QUINN EMANUEL URQUHART &
`SULLIVAN, LLP
`
`By
`
`/s/ Victoria F. Maroulis
`Charles K. Verhoeven
`Kevin P.B. Johnson
`Victoria F. Maroulis
`Thomas D. Pease
`David A. Perlson
`
`Attorneys for Samsung Electronics Co., Ltd.,
`Samsung Electronics America, Inc., and Samsung
`Research America, Inc.
`
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`Case No. 16-cv-02787-WHO
`SAMSUNG’S OBJECTION TO HUAWEI’S REPLY EVIDENCE OR, IN THE ALTERNATIVE, FOR LEAVE TO
`FILE A SUR-REPLY
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