Case 9:19-cv-81160-RS Document 931 Entered on FLSD Docket 05/19/2021 Page 1 of 8
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
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`Case No. 9:19-cv-81160-RS
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`APPLE INC.,
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`v.
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`CORELLIUM, LLC,
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`Plaintiff,
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`Defendant.
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`PLAINTIFF APPLE INC.’S MOTION FOR LEAVE
`TO FILE A MOTION IN LIMINE TO PRECLUDE CORELLIUM’S
`“DEMONSTRATIVE” THAT DOES NOT REPRESENT ITS ACTUAL PRODUCT
`AND INCORPORATED MEMORANDUM OF LAW
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`Case 9:19-cv-81160-RS Document 931 Entered on FLSD Docket 05/19/2021 Page 2 of 8
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`Apple seeks leave to file a motion in limine, attached as Exhibit A, to bar Corellium from
`using at trial a purported demonstrative exhibit—which is not demonstrative at all, but is instead a
`made-for-litigation version of its software product that no customer has ever seen—that Corellium
`just recently disclosed to Apple more than a year after the close of discovery.
`On March 26, 2021, Corellium provided Apple with a new set of source code for its iOS-
`virtualizing software product, CORSEC iOS, saying it intended to use the source code as a
`“demonstrative aid” at trial. The code contains over 10,000 lines of new code that Corellium never
`produced in discovery, and
` does not exist on
`any versions of the product at issue in this case. And while Corellium apparently intends to run
`this newly minted software program that executes made-for-trial computer code before the jury,
`Apple’s counsel and experts have had no opportunity to do the same, as they can only review this
`purported demonstrative code and cannot run it, which requires access to Corellium’s internal
`systems.
`When Apple attempted to confer with Corellium about the new source code, Corellium
`evaded. Corellium’s counsel initially declined to provide any further details, claiming they were
`not obligated to do so. It was not until April 30, 2021, after Apple followed up on multiple
`occasions, that Corellium revealed that the source code is for a “demonstrative” version of its
`product that Corellium plans to show to the jury. The problem with Corellium’s plan is that the
`modified version of its product Corellium intends to show the jury is not the version of its product
`at issue in this case—and so it will be confusing and misleading to jurors, who will have difficulty
`distinguishing it from the real thing. Equally concerning is the fact that Corellium is attempting to
`prevent Apple from learning anything about this “demonstrative” edition of CORSEC iOS, and
`has filed a motion seeking to prevent Apple from having any further access to the altered source
`code, ECF No. 909, which the Court has set for a hearing on Friday, May 28, 2021, ECF No. 926.
`Because Corellium did not tell Apple about its made-for-trial version of its product until
`over seven months after the deadline for motions in limine, Corellium prevented Apple from
`knowing about or addressing this issue when motions in limine were due. Corellium’s creation of
`a new, trial-specific version of its product long after the deadline for motions in limine passed
`constitutes good cause to modify the Court’s scheduling order to permit Apple to file the attached
`motion in limine.
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`Case 9:19-cv-81160-RS Document 931 Entered on FLSD Docket 05/19/2021 Page 3 of 8
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`I.
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`BACKGROUND
`In discovery, Apple sought from Corellium all source code related to the product at issue
`in this case. See Ex. D (RFP Nos. 7–9) at 3. Corellium first produced its source code in April
`2020 in a folder called “
`.” Ex. B (Nightingale Dawson Decl.) ¶ 3. That source code
`—CORSEC iOS1—that Corellium sold to
`reflected
`customers at that time. Id. In early 2021, after Apple reminded Corellium of its duty to supplement
`its productions, including its source code production, Corellium agreed to—and did—supplement
`its discovery with new source code for the product it makes available to customers. Id. ¶ 4. This
`source code, which Corellium produced on March 12, 2021, in a folder called “
`,”
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`
`. Id.
`Two weeks later, on March 26, 2021, unprompted by Apple, Corellium provided Apple
`with a third folder of source code, which it dubbed “
`,” telling Apple cryptically that
`it had made a “new, small update” to its code that it intended to use as a “demonstrative aid” at
`trial. Ex. E at 2. Apple’s own preliminary inspection of the source code, however, indicates the
`update is not small, and that it materially differs from Corellium’s prior source code productions.
`The source code Corellium provided on March 26 for its purported demonstrative aid contains over
`10,000 lines of code that differ from the source code of the version sold to consumers, which
`Corellium had produced on March 12. Ex. C (Nieh Decl.) ¶ 4; Ex. B ¶¶ 4–5. Notably, these
`changes
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`Ex. C ¶¶ 4–5.
` does not exist in any of the versions of CORSEC iOS Corellium has
`provided for Apple’s inspection. Id. ¶ 5. It is not listed in any of Corellium’s release notes, which
`detail for customers the features and functions of the newest versions of CORSEC iOS. Ex. B ¶ 5.
`It is not mentioned in a single document Corellium has produced in this litigation. Id. And it is
`not mentioned in any of Corellium’s responses to Apple’s interrogatory request regarding the
`versions of Corellium’s product and their functionality. Id.; Ex. F at 5–13. And because Apple
`cannot use the source code Corellium recently provided to run Corellium’s product—that is
`something only Corellium can do using internal systems that are not available to Apple or its
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`1 For much of this litigation, the parties and Court have referred to the Corellium product at issue
`as the Corellium Apple Product.
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` Apple now refers to it as CORSEC iOS.
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`Case 9:19-cv-81160-RS Document 931 Entered on FLSD Docket 05/19/2021 Page 4 of 8
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` works in practice.
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`experts—Apple is precluded from knowing how
`Ex. C ¶ 6.
`Apple therefore asked Corellium about its intentions with respect to the source code it
`provided on March 26. Corellium repeatedly evaded Apple’s attempts to meaningfully confer
`regarding the March 26 source code. Apple emailed Corellium on March 31 and April 1. Ex. B
`¶ 6. When Corellium failed to respond to Apple’s request to confer, Apple followed up again on
`April 6, with the parties finally scheduling a time to first discuss the source code on April 9, 2021.
`Id. Even then Corellium refused to provide any further information about its intentions,
`maintaining that it planned to use the source code as a demonstrative and was not obligated to
`provide further details. Id. Apple continued to examine the source code to determine how best to
`address Corellium’s demonstrative plans, Ex. C ¶¶ 4–5, and followed up with Corellium on April
`22, 2021 to better understand Corellium’s position, Ex. B ¶ 7. When Corellium again did not
`respond, Apple followed up on April 26, 2021, and then again on April 28, 2021. Ex. B ¶ 7.
`Corellium finally agreed to confer with Apple on April 29, 2021, but then was not prepared to
`address the source code during the parties’ call. Id. The parties finally conferred again regarding
`the purported demonstrative on Friday, April 30, 2021. Id.
`On April 30, Corellium disclosed for the first time that it planned to show the jury a version
`of CORSEC iOS running “
`,” but refused to provide any further detail on how this
`altered product would actually be presented to the jury. Id. When Apple noted that substantial
`changes had been made to the code, Corellium admitted that the product was not identical to the
`product it sold to customers. Id. And while Corellium contended the changes were immaterial, it
`provided no support for this bald assertion and no explanation for why the jury should see a version
`of Corellium’s product that is not at issue in this case. Id.
`Corellium has also filed a Motion for a Protective Order seeking to prohibit Apple from
`having any further access to the March 26 source code in the “
`” folder. ECF
`No. 909. In its reply in support of that motion, Corellium confirmed that this source code contains
`new code (though it disputes, without any evidence, the volume of changes related to the
`demonstrative aid), and reiterated its intention to use the code “as a demonstrative aid at trial.”
`ECF No. 924 at 2. Corellium also admitted that the source code it plans to show the jury as a
`demonstrative aid is “not Corellium’s source code implemented in Corellium’s actual product.”
`ECF No. 924 at 3 (emphasis in original).
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`Case 9:19-cv-81160-RS Document 931 Entered on FLSD Docket 05/19/2021 Page 5 of 8
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`II.
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`ARGUMENT
`A motion for leave to file a motion in limine after the Court’s scheduling deadline is
`effectively a motion seeking to modify that deadline, and thus must be supported by good cause.
`Horowitch v. Diamond Aircraft Indus., Inc., No. 6:06-cv-1703, 2009 WL 3790415, at *3 (M.D.
`Fla. Nov. 9, 2009); Fed. R. Civ. P. 16(b)(4). “This good cause standard precludes modification
`unless the schedule cannot be met despite the diligence of the party seeking the extension.”
`Aceituno v. Carnival Corp., No. 20-cv-23935, 2021 WL 1647890, at *2 (S.D. Fla. Apr. 27, 2021)
`(quoting Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418 (11th Cir. 1998)).
`Here, good cause exists to permit Apple to file a motion in limine regarding Corellium’s
`so-called demonstrative aid. In its first scheduling order, the Court set the deadline for motions in
`limine on August 17, 2020. ECF No. 32 at 2. At that time, Apple had no idea—and could not
`have known with any amount of diligence—that Corellium would later create and attempt to show
`the jury an altered version of its product that is not offered or sold to customers, and runs on made-
`for-litigation computer code. See ECF No. 924 at 2–3. It was not until March 26, 2021 that Apple
`even learned that Corellium had created new source code that it intended to use as a “demonstrative
`aid.” Ex. E. Over the next month, Apple diligently sought clarification on what this
`“demonstrative aid” was and how it would be used trial. But Corellium refused to answer. Ex. B
`¶¶ 6–7. Finally, on April 30, 2021, Corellium clarified that this “demonstrative aid” was not
`actually the presentation of new source code to the jury, but a new version of its product, running
`that code, that had been altered solely for the purposes of trial. Ex. B ¶ 7; see also ECF No. 924
`at 2–3. And though Corellium admitted that this made-for-trial version was not identical to the
`product it sells to customers, it insisted that no further explanation was necessary because any
`changes it made to the product were purportedly not material—a claim for which Corellium
`provided no support. Ex. B ¶ 7.
`Apple should not be forced to simply take Corellium’s word that the admitted changes it
`has made to the made-for-trial software are not material, especially when Apple has had no
`opportunity to test the veracity of Corellium’s claim, let alone see what Corellium actually intends
`to show the jury. The
` does not appear in any product to which
`Apple has been given access, Ex. C ¶ 5, and is not mentioned anywhere in Corellium’s technical
`documents, discovery responses, product release notes, or even its expert reports, Ex. B ¶ 5.
`Corellium has refused to provide any clarity on what it seeks to do with this new version of its
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`Case 9:19-cv-81160-RS Document 931 Entered on FLSD Docket 05/19/2021 Page 6 of 8
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`product a trial, and since it appears Corellium simply intends to show the jury a litigation-inspired
`version of its product that is not actually at issue in this case, Apple has no choice but to seek leave
`to file a motion in limine to preclude any use of Corellium’s “demonstrative aid.” The risk of the
`jury being confused and misled by Corellium’s “demonstrative” and the unfair prejudice to Apple
`if Corellium is permitted to proceed with its plan, are manifest. And given that none of these facts
`were or could have been known to Apple at the time motions in limine were due, Apple has good
`cause for seeking leave to file its motion in limine after the Court’s deadline. See Long v. Baker,
`No. 8:12-cv-1943T35, 2014 WL 12839778, at *2 (M.D. Fla. Sept. 2, 2014) (granting motion for
`leave to file a supplemental motion in limine out of time).
`III. CONCLUSION
`Apple respectfully requests that the Court grant Apple leave to file its motion in limine to
`preclude Corellium from showing or describing to the jury a made-for-trial version of its product
`that appears to be materially different from the actual product Corellium sells to customers.
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`Case 9:19-cv-81160-RS Document 931 Entered on FLSD Docket 05/19/2021 Page 7 of 8
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`LOCAL RULE 7.1(A)(3) CERTIFICATION
`Pursuant to Local Rule 7.1(a)(3), the undersigned counsel verifies that counsel for Plaintiff
`conferred telephonically with counsel for Defendant on May 18, 2021, regarding the relief sought
`herein. Defendant opposes the relief sought herein.
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`Case 9:19-cv-81160-RS Document 931 Entered on FLSD Docket 05/19/2021 Page 8 of 8
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`Respectfully Submitted,
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`
`s/ Martin B. Goldberg
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`Martin B. Goldberg
`Florida Bar No. 0827029
`mgoldberg@lashgoldberg.com
`rdiaz@lashgoldberg.com
`Emily L. Pincow
`Florida Bar. No. 1010370
`epincow@lashgoldberg.com
`LASH & GOLDBERG LLP
`100 Southeast Second Street
`Miami, FL 33131
`(305) 347-4040 / (305) 347-4050 Fax
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`
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`Dated: May 19, 2021
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`Michele D. Johnson*
`michele.johnson@lw.com
`LATHAM & WATKINS LLP
`650 Town Center Drive, 20th Floor
`Costa Mesa, CA 92626
`(714) 540-1235 / (714) 755-8290 Fax
`
`Sarang Vijay Damle*
`sy.damle@lw.com
`Elana Nightingale Dawson*
`elana.nightingaledawson@lw.com
`LATHAM & WATKINS LLP
`555 Eleventh Street NW, Suite 1000
`Washington, DC 20004
`(202) 637-2200 / (202) 637-2201 Fax
`
`Andrew M. Gass*
`andrew.gass@lw.com
`Joseph R. Wetzel*
`joe.wetzel@lw.com
`LATHAM & WATKINS LLP
`505 Montgomery Street, Suite 2000
`San Francisco, CA 94111
`(415) 391-0600 / (415) 395-8095 Fax
`
`Jessica Stebbins Bina*
`jessica.stebbinsbina@lw.com
`LATHAM & WATKINS LLP
`10250 Constellation Blvd., Suite 1100
`Los Angeles, CA 90067
`(424) 653-5500 / (424) 653-5501 Fax
`
`Gabriel S. Gross*
`gabe.gross@lw.com
`LATHAM & WATKINS LLP
`140 Scott Drive
`Menlo Park, CA 94025
`(650) 463-2628 / (650) 463-2600 Fax
`
`*Admitted pro hac vice
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`Attorneys for Plaintiff APPLE INC.
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