Free Response to Motion - District Court of Delaware - Delaware

Case 1:07-cv-00180-JJF

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 v. TATUNG COMPANY, TATUNG COMPANY OF AMERICA, INC., and VIEWSONIC CORPORATION, Defendant. L.G. PHILIPS LCD CO., LTD, Plaintiff,

The Honorable Ricardo S. Martinez

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

No. MS 07-0030-RSM PLAINTIFF L.G.PHILIPS LCD CO., LTD.'S OPPOSITION TO TATUNG'S MOTION FOR EXPEDITED HEARING AND MOTION FOR TELEPHONIC HEARING Noted for Hearing March 19, 2007 at 9:00 a.m.

Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, Plaintiff LG.Philips LCD Co., Ltd. ("LPL") hereby opposes the Request for Expedited Hearing filed by Defendants Tatung Company and Tatung Company of America, Inc. (collectively "Tatung") in relation to the third party subpoena served on Amazon.com, Inc. by LPL. Ex. 1. LPL

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requests that Tatung's motion for expedited hearing be denied and that, in any event, the Court schedule a hearing at a time when LPL's Washington, D.C. counsel is available and allow LPL to participate in the hearing by telephone. Tatung failed to confer with LPL about possible hearing dates, failed to provide sufficient notice to LPL of its motion, and purposely scheduled numerous such motions around the country on the same day. This motion involves extensive factual issues, thus necessitating that LPL's Washington, D.C. counsel present argument to the Court. For these reasons, LPL respectfully requests that it be permitted to appear by telephone or that the hearing date be rescheduled for a date when LPL's counsel may appear and be heard. PLAINTIFF L.G.PHILIPS LCD CO., LTD.'S OPPOSITION TO TATUNG'S MOTION FOR EXPEDITED HEARING AND MOTION FOR TELEPHONIC HEARING - 1
MS-07-0030 RSM GARDNER BOND TRABOLSI PLLC
A T T O R N E Y S

2200 SIXTH AVENUE, SUITE 600 SEATTLE, WASHINGTON 98121 TELEPHONE (206) 256-6309 FACSIMILE (206) 256-6318

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I.

STATEMENT OF FACTS This matter involves a subpoena issued by LPL in relation to discovery in a patent

infringement action pending in the United States District Court in Delaware ("Main Case"). On December 27, 2006, LPL served a third party subpoena on Hewlett-Packard Company. On February 13 and 14, 2007, LPL served approximately 23 other third party subpoenas

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("Subpoenas") on various distributors, retailers, and purchasers of Defendants' products in the United States. The Subpoenas were issued based on LPL's understanding that these parties, who have current or former business relationships with Tatung and ViewSonic Corporation ("ViewSonic"), another Defendant in the underlying case, have documents that are relevant to the instant action, including but not limited to, documents related to purchase and sale of the infringing products in the United States, documents relating to Defendants' efforts to market the infringing products in the United States, documents relating to Defendants' technical specifications, and other important discovery concerning infringement, inducement, damages, and other issues.1 The Subpoenas seek documents and information related solely to the products at issue in this action. In addition, the Subpoenas requested that all documents be produced by March 5, 2007, and that depositions occur between March 12 and March 27, 2007, consistent with the March 30 deadline for third party discovery in this case. LPL provided notice and copies of the Subpoenas to the Defendants prior to the service of the Subpoenas. During a telephone conference on January 30, 2007, Tatung indicated for the first time that it intended to file a motion for protective order with respect to the Subpoena directed to Hewlett-Packard, but Tatung never did so.2 More than one month later, on March 5, Tatung again threatened to file
LPL has also sought the same information and documents, unsuccessfully, from the Defendants. Defendants have produced some - but certainly not all ­ discovery that LPL seeks. Notably, much of Defendants' production is subject to objections and limitations that LPL disputes and which are the subject of numerous discovery motions already pending before the Special Discovery Master in the Main Case in the District of Delaware, as described more fully below. 2 Hewlett-Packard has produced more than 5000 pages of relevant, responsive documents. Hewlett-Packard's production belies Tatung's argument that the Subpoenas are burdensome to the third parties, particularly because the majority of the third parties are smaller entities with far fewer responsive documents. Moreover, Hewlett1

PLAINTIFF L.G.PHILIPS LCD CO., LTD.'S OPPOSITION TO TATUNG'S MOTION FOR EXPEDITED HEARING AND MOTION FOR TELEPHONIC HEARING - 2
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GARDNER BOND TRABOLSI PLLC
A T T O R N E Y S

2200 SIXTH AVENUE, SUITE 600 SEATTLE, WASHINGTON 98121 TELEPHONE (206) 256-6309 FACSIMILE (206) 256-6318

Case 1:07-cv-00180-JJF

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additional motions for protective orders with respect to the later served 23 Subpoenas. In addition, even though Tatung had received the second batch of Subpoenas nearly three weeks earlier, Tatung indicated that some or all of such motions would be made on an ex parte basis because of the March 5 return date on some of the Subpoenas, which incidentally was that day. (See Ex. 2, Emails between V. Ho and C. Connor (Mar. 5-7, 2007).) Tatung claimed to

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have standing to raise any such objections on behalf of the third parties because it claimed that the Subpoenas pertained to Tatung's still unresolved objections to the scope of discovery in the Main Case. Tatung never explained why it had waited several weeks before raising its objections, but merely stated that it intended to file its motions on an ex parte basis. See id. In an exchange of emails, LPL strenuously objected to Tatung's position that it could file ex parte motions on any issue in the case, including any issues related to the third party subpoenas served by LPL. See id. In addition, LPL further reiterated its position that Tatung had no standing to raise objections to the Subpoenas, principally, because Tatung has never proved why any documents now in the custody of third parties are confidential, trade secrets, or otherwise shielded from discovery. See id. Nonetheless, Tatung evidently began filing its motions on March 9, 2007. All of the motions filed are nearly identical. Many of the motions were filed on an ex parte basis. With respect to the remaining motions, which were not technically filed ex parte, the motions were served in a questionable manner. For example, none of the 23 motions were sent to Shari Klevens at McKenna Long & Aldridge, even though Ms. Klevens was the attorney who issued and served all of the Subpoenas at issue (as evident from the face of the Subpoenas). Indeed, even though LPL's counsel sent an email on Friday, March 2, 2007 providing a service list for all documents in the Main Case, Tatung failed to serve motions on the complete list of attorneys included in that list. As a result, Tatung did not learn of many of

Packard's production reveals many "Process Management Plans," even after Tatung denied the existence of such documents and refused to produce them. Tatung's failure to produce documents adds support for LPL's position that it needs the discovery sought from the third parties.

PLAINTIFF L.G.PHILIPS LCD CO., LTD.'S OPPOSITION TO TATUNG'S MOTION FOR EXPEDITED HEARING AND MOTION FOR TELEPHONIC HEARING - 3
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GARDNER BOND TRABOLSI PLLC
A T T O R N E Y S

2200 SIXTH AVENUE, SUITE 600 SEATTLE, WASHINGTON 98121 TELEPHONE (206) 256-6309 FACSIMILE (206) 256-6318

Case 1:07-cv-00180-JJF

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the motions until well after they were filed. Moreover, Tatung served the majority of its motions by regular mail, even though Tatung requested expedited hearings with respect to those motions, ensuring the possibility that the courts would rule before LPL would receive the motions, let alone have an opportunity to respond. Notably, the facts suggest that Tatung actually went out of its way to make sure that LPL did not receive the motions in a timely

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manner. For example, Tatung served only a few of the motions electronically, and then, even though Shari Klevens was the only attorney to sign LPL's subpoenas, served its motions only on two other LPL attorneys, one of whom Tatung knew to be out of the office defending depositions for the Main Case. Also, even though Tatung committed to LPL and the Special Master during a hearing on March 12, 2007 that it would provide electronic copies of all motions by the close of business on March 12, 2007, Tatung has so far failed to do so. See Ex. 3, Letter from C. Connor to Tatung's counsel on March 12, 2007, which advises Tatung of LPL's additional concerns. As a further example, according to Tatung, it filed a Motion for Protective Order with regard to the Subpoena served on Sensormatic in the Southern District of Florida on March 9, 2007. That motion was served by mail only and received by LPL in the mid-afternoon on Monday, March 12, 2007 (in the afternoon mail delivery). At 4:30 p.m. that same day, LPL received notice that the Southern District had granted the motion, and the court's order stated that the court reviewed an opposition filed by LPL (evidently using language from a standard proposed order).3 Ex. 4. Moreover, Tatung is now trying to capitalize on the Southern District of Florida's mistaken entry of an order in Tatung's favor by encouraging other courts, including this one, to grant Tatung's motions even as LPL is preparing its oppositions. See e.g., Ex. 5. As yet another example of Tatung's failure to provide adequate notice of its motions,
LPL has filed a Motion for Reconsideration in the Southern District of Florida, advising the Court that its order was issued before LPL had been given notice of Tatung's motion and before LPL had an opportunity to respond.
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PLAINTIFF L.G.PHILIPS LCD CO., LTD.'S OPPOSITION TO TATUNG'S MOTION FOR EXPEDITED HEARING AND MOTION FOR TELEPHONIC HEARING - 4
MS-07-0030 RSM

GARDNER BOND TRABOLSI PLLC
A T T O R N E Y S

2200 SIXTH AVENUE, SUITE 600 SEATTLE, WASHINGTON 98121 TELEPHONE (206) 256-6309 FACSIMILE (206) 256-6318

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on March 12, 2007, Tatung sent a letter to Judge Mary L. Cooper in the District of New Jersey and forwarded a copy of Tatung's Motion for Protective Order filed in that court. Tatung copied two of LPL's attorneys on the letter electronically (although not Ms. Klevens), but did not attach the enclosures, even though LPL had not otherwise received those documents at that time. See Ex. 6. Moreover, even after LPL reiterated during a hearing in

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the Main Case that Ms. Klevens and Cormac Connor, also of McKenna Long & Aldridge LLP, should be included on correspondence relating to the third party subpoenas, Tatung had continued to leave them off of new emails enclosing the requested motions. See Ex. 7. Finally, as further evidence of Tatung's conduct with respect to the Motions for Protective Order, not only did Tatung provide untimely and/or no notice of the motions, but Tatung failed to confer with LPL on possible times for the hearing and scheduled several overlapping hearings in multiple jurisdictions. For example, Defendants initially tried to schedule three oral arguments, all on the morning of March 15, 2007, in New Jersey, Massachusetts, and Illinois. These three motions, and many others, were scheduled only a few days after the motions were filed and served by regular U.S. mail, rather than electronically, if at all.4 While Tatung filed the Motions for Protective Order, it did so without regard for the fact that several of the third parties had either already produced the requested documents or agreed to produce the requested documents.5 However, because Tatung contacted the third parties to notify them of Tatung's Motions, several of the third parties have now refused to produce the requested discovery. See, e.g. Ex. 8.

As Tatung is aware, all of these emergency hearings have been scheduled to occur simultaneously with depositions of Tatung's witnesses. Because LPL's lead trial counsel are busy taking and defending depositions this week, it appears that Tatung strategically filed these requests for expedited hearing in an attempt to prevent LPL from obtaining significant and relevant information it needs from the third parties or to divert LPL's focus from the Tatung depositions. 5 For example, even after learning that Tatung had filed Motions related to the Subpoenas, a few of the third parties have agreed to produce the requested documents, further undermining Tatung's argument that the Subpoenas are burdensome.

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PLAINTIFF L.G.PHILIPS LCD CO., LTD.'S OPPOSITION TO TATUNG'S MOTION FOR EXPEDITED HEARING AND MOTION FOR TELEPHONIC HEARING - 5
MS-07-0030 RSM

GARDNER BOND TRABOLSI PLLC
A T T O R N E Y S

2200 SIXTH AVENUE, SUITE 600 SEATTLE, WASHINGTON 98121 TELEPHONE (206) 256-6309 FACSIMILE (206) 256-6318

Case 1:07-cv-00180-JJF

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II.

ARGUMENT A. Defendants' Request for Expedited Hearing Should Be Denied

Defendants argue that LPL has created the need for expedited hearing by serving its Subpoenas "at the last minute." This is simply not true.6 Indeed, LPL waited to serve its Subpoenas because, simply put, LPL was hopeful that it would receive the discovery at issue

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from the Defendants. However, as the discovery deadline quickly approached and Defendants had not provided the requested information, LPL realized it had no choice but to serve the Subpoenas before LPL's opportunity to obtain the discovery was lost. Nonetheless, LPL served the Subpoenas a full six weeks before the deadline for third party discovery. Indeed, in a hearing on March 12, 2007, Tatung conceded that it has not produced all responsive discovery documents and that it would produce additional documents in April 2007, after the deadline for the close of third party discovery. Contrary to Tatung's suggestion, Tatung has created its own delay and now offers that delay as justification for its expedited relief. Indeed, even though Tatung received the Subpoenas on or about February 13 and 14, it waited more than three weeks to file the instant motion. Tatung's request for an expedited motion would be unnecessary but for Defendants' failure to file this motion when it learned of the scope of the Subpoenas. LPL should not have to pay for Tatung's delay.7 B. LPL Requests that Any Hearing On This Matter Be Scheduled At a Time When LPL'S Washington, D.C. Counsel Is Available and Requests Leave to Participate By Telephone

Because Tatung filed approximately 23 motions, all with requests for expedited hearing, the various courts have begun to schedule hearings at the same time. Tatung did not

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While the Scheduling Order in the Main Case sets March 30, 2007 as the close of third party discovery, LPL has twice requested extensions of this deadline. Tatung opposed those requests, which were denied. 7 In addition, on Friday, March 16, 2007, Special Master Vincent Poppiti in the District of Delaware will consider whether to extend the deadline for third party discovery. If that motion is granted, the deposition can be rescheduled past March 30, 2007 and any alleged need for expedited resolution of this motion will be rendered moot. Also pending before Special Master Poppiti is LPL's request that Tatung be precluded from continuing their blatant interference with appropriate third party discovery.

PLAINTIFF L.G.PHILIPS LCD CO., LTD.'S OPPOSITION TO TATUNG'S MOTION FOR EXPEDITED HEARING AND MOTION FOR TELEPHONIC HEARING - 6
MS-07-0030 RSM

GARDNER BOND TRABOLSI PLLC
A T T O R N E Y S

2200 SIXTH AVENUE, SUITE 600 SEATTLE, WASHINGTON 98121 TELEPHONE (206) 256-6309 FACSIMILE (206) 256-6318

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consult with LPL regarding LPL's availability with respect to any of the 23 pending motions prior to its request for expedited hearing. Consequently, Tatung attempted to schedule at least three hearings (of which LPL knows), all on the morning of March 15, at 9:00 a.m. (in New Jersey), at 9:15 a.m. (in Illinois), and 11:00 a.m. (in Massachusetts). These hearings, which are just a few examples, are obviously being scheduled to create the most interference,

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harassment, and burden on LPL's counsel. Because the various courts presumably are not aware of the other motions pending with respect to the 23 Subpoenas, the hearings being scheduled are at times when LPL is unavailable, primarily due to other hearings scheduled at the same time. As a result, LPL requests that any hearing on this matter be scheduled, or rescheduled to the extent already placed on the Court's docket, until a time when LPL's Washington, D.C. counsel is available. In addition, in light of the numerous hearings scheduled within hours of one another in different jurisdictions across the country, LPL requests that its Washington, D.C. counsel be permitted to participate in any hearings by telephone. If necessary, however, LPL will have local counsel present in person for the hearing. III. CONCLUSION For the foregoing reasons, LPL requests that Tatung's motion for expedited hearing be denied, and that the Court schedule a hearing at a time when LPL's Washington, D.C. counsel is available. LPL also requests that its counsel be permitted to participate in the hearing by telephone.

PLAINTIFF L.G.PHILIPS LCD CO., LTD.'S OPPOSITION TO TATUNG'S MOTION FOR EXPEDITED HEARING AND MOTION FOR TELEPHONIC HEARING - 7
MS-07-0030 RSM

GARDNER BOND TRABOLSI PLLC
A T T O R N E Y S

2200 SIXTH AVENUE, SUITE 600 SEATTLE, WASHINGTON 98121 TELEPHONE (206) 256-6309 FACSIMILE (206) 256-6318

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DATED this 14th day of March 2007. GARDNER BOND TRABOLSI PLLC

By_/s/ Ronald C. Gardner _______________ Ronald C. Gardner, WSBA No. 9270 Of Counsel:

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MCKENNA LONG & ALDRIDGE LLP

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MS-07-0030 RSM GARDNER BOND TRABOLSI PLLC
A T T O R N E Y S

Shari Klevens 1900 K Street, NW Washington, DC 20006 202-496-7207 Attorneys for Plaintiff

2200 SIXTH AVENUE, SUITE 600 SEATTLE, WASHINGTON 98121 TELEPHONE (206) 256-6309 FACSIMILE (206) 256-6318

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CERTIFICATE OF SERVICE The undersigned certifies that on March 14, 2007, she electronically filed the foregoing document with the Clerk of the Court using CM/ECF, which will send automatic notification of the filing to the following: PLAINTIFF L.G.PHILIPS LCD CO., LTD.'S OPPOSITION TO TATUNG'S MOTION FOR EXPEDITED HEARING AND MOTION FOR TELEPHONIC HEARING

Stacy Foster Warmuth Wilsdon Calfo PLLC [email protected]

Dated: March 14, 2007. 11 12 13 14 15 16 17 18 19 20 21 22 23 PLAINTIFF L.G.PHILIPS LCD CO., LTD.'S OPPOSITION TO TATUNG'S MOTION FOR EXPEDITED HEARING AND MOTION FOR TELEPHONIC HEARING - 9
MS-07-0030 RSM GARDNER BOND TRABOLSI PLLC
A T T O R N E Y S

/s/ Jan M. Young Jan M. Young Legal Assistant to Ronald C. Gardner

2200 SIXTH AVENUE, SUITE 600 SEATTLE, WASHINGTON 98121 TELEPHONE (206) 256-6309 FACSIMILE (206) 256-6318

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