Free Report and Recommendations - Special Master - District Court of Delaware - Delaware

Case 1 :06-cv-00788-JJF Document 238 Filed 07/10/2008 Page 1 of 4
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COUNSELORS AT LAW
Phone: (302) 425-64l0
Fax: (302) 428-5132
Email: P0ggiliga>BIunkRome.com
July 10, 2008
John G. Day, Esquire Mary B. Graham, Esquire
Ashby & Geddes Morris Nichols Arsht & Tunnell LLP
500 Delaware Avenue 1201 North Market Street
Wilmington, DE 19801 Wilmington, DE 19801
Re: ProMOS Technologies, Inc. v. Freescale Semiconductor, Inc.,
C.A. N0. 06-788 (.]lJF)
Special Master’s Report and Recommendation on the Motion of
Plaintiff, Promos Technologies, Inc., To Reopen The Deposition Of
Steven Benzel And For Other Relief (DM5e)
Dear Counsel,
This matter comes before me as Special Master on the motion of Plaintiff, ProMOS
Technologies, Inc. ("ProMOS") to reopen the deposition of Steven Benzel ("Benzel"). For the
reasons already stated on the record during the June 25, 2008 hearing on the motion [Tr. at pp.
19-48] and for reasons stated below, the Special Master concludes that a re-deposition of Benzel
is unnecessary. Further, the Special Master concludes that ProMOS is not entitled to the fees
associated with the deposition of the two additional Freescale individuals on the L2l0 cache.
Although the case law is clear that a deposition may be reopened when substantive
changes are made in an errata sheet, (See, e. g., Lugtig v. Thomas, 89 F.R.D. 639, 714-15 (D.C.Ill.
1981)) reopening Benzel’s deposition is, in the Special Master’s view, simply a waste of time.
When a deposition is reopened, the deposing counsel can only ask questions about the reasons
the changes were made, where the changes originated (with the deponent or the attorney) and
supplemental questions made necessary by the changed answer. Id. ProMOS asserts that it is
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entitled to reopen the Benzel deposition in order to obtain an explanation of why he gave an
answer during his deposition then retracted that answer. [Tr. at p. 24].
ln the Special Master’s view, the only questions that ProMOS can ask at a re-deposition
of Benzel, per Lugtig, either have already been answered by the errata sheet or cannot be
answered by Benzel. The errata sheet explains why Benzel gave one answer and later retracted
that answer, where the changes originated and also explains that Benzel does not have
information regarding the development of the DL2CC. This information was reiterated by
counsel for Freescale at the June 25, 2008 hearing. [Tr. at pp. 28-29].
Further, Freescale has already agreed to designate two individuals that ProMOS can
depose on the L210 cache controller, the project that Benzel identified in his errata sheet. The
Special Master finds it noteworthy that ProMOS admitted that Benzel would not be able to
provide the additional information on the L210 cache that it needs. [Tr. at p. 24:7-11].
At the June 25, 2008 hearing, the Special Master requested that the record be
supplemented to include the email exchange between counsel leading up to the deposition of
Benzel in order to be informed about the topics for which he was to be deposed. [Tr. at p. 43].
A review of the submittal emails demonstrates that they contain very broad language, adding no
additional information that would cause the Special Master to alter the conclusion.
E-mail from counsel for ProMos of February 9 and 12 to counsel for Freescale show the
agreed upon subject matter to which Benzel would be testifying on February 15, i.e. the ARM
cores including the ARM 920T, the ARM 926 and the ARM 1136. This was confirmed by Mr.
Maersch, counsel for Freescale, who when asked at the Benzel deposition about what topics
Benzel was being presented, repeated the above ARM cores. [Benzel Dep. at 5:20]. While Mr.
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Maersch added that Benzel would also testify to the "ARM Level 2 cache controller" (the
"Maersch Statement" [Id. at 5:21],, the Special Master concludes that the statement was neither
inconsistent with the parties’ understanding prior to Benzel’s deposition nor did it open the door
to a new topic for the following reasons.
First, the Level 2 cache controller is synonymous with the L210 cache. [Id at 6:13-14]
("I was responsible for the integration of the L2CC cache controller and I also refer to it as an
L210"). Second, as ProMOS acknowledged, the L2lO cache is part of the ARM 1136 platform.
[D.1. 192 at 1] ("The ARM 1136 has unified L2 cache that is referred to as ‘L210"’). In contrast,
as explained in Benzel’s errata sheet, the DL2CC is part of the "StarCore DSP processor
platform" not the ARM l 136 platform. And third, the DL2CC was not identified in Exhibit 1 of
ProMOS’s Third Notice of 30(b)(6) Deposition as a Freescale Product. Notably, the ARM 920T,
the ARM 926 and the ARM 1136 cores were all listed in Exhibit 1.
Thus, in view of each of the above and in the context of the parties’ discussions regarding
the topics leading up to Benzel’s deposition, the Maersch Statement regarding the Level 2 cache
controller appears to refer to the L210 cache which is part of the ARM 1136. Accordingly, the
Special Master concludes that Benzel was not presented to testify regarding the DL2CC, and the
Maersch Statement did not open the door to such testimony.
At the June 25, 2008 hearing, ProMOS for the first time sought fees and costs for
deposing the two newly designated individuals on the L210 cache. The Special Master is
mindful that ProMOS had only requested fees for reopening the deposition of Benzel. [D.1.192
at 3]. The Special Master concludes that ProMOS knew that it was going to depose at least one
additional individual based on Benzel’s errata sheet, which stated that he did not have further
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Case 1:06—cv—00788-JJF Document 238 Filed 07/10/2008 Page 4 of 4
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information on the topic but rather identified an individual with knowledge. Moreover, as stated
above, Benzel was not designated to testify regarding the DL2CC. Knowing that Benzel did not
possess any information regarding the L210 cache, ProMOS could have requested that Freescale
pay for any additional deposition costs related to the L2l0 cache. It chose not to.
Moreover, ProMOS’s eleventh hour request plainly violates D. Del. L. R. 7.1.3(c)(1)(G)
which requires that a brief be accompanied by, "a short conclusion stating the precise relief
requested." While the provisions of D. Del. L.R. 7.1.2 and 7.1.3 are more flexible when parties
are directed to file letter briefs [D.l. 131], the requirement that a party state with precision the
relief requested is a common sense fundamental requirement.
FOR THE FOREGOING REASONS, the Special Master concludes that ProMOS’s letter
Motion to Compel the re-deposition of Steven Benzel [D.I. 192] and its request to assess the
costs of the additional 30(b)(6) depositions should be DENIED.
The Special Master’s Report and Recommendations will become a final order of the
Court unless objections are taken within twenty (20) days as provided by the Court’s
Order of January 25, 2008. [D.l.. 133].
ENTERED this /Of/day of July, 2008.
ours ve trul
Vincent J. Pop ' `
5-5 * `·• 00614)
Special Master
VJ P/mcl
1201 Market Street Suite 800 Wilmington, DE 19801
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