Free Redacted Document - District Court of Delaware - Delaware

Case 1 :06-cv-00788-JJF Document 214 Filed 06/O2/2008 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
PROMOS TECHNOLOGIES, INC., ) REDACTED
) PUBLIC VERSION
Plaintiff, )
)
v. ) Civil Action No. 06-788 (JJF)
)
FREESCALE SEMICONDUCTOR, INC., )
)
Defendant. )
· PROMOS’S REPLY LETTER TO THE SPECIAL MASTER
DATED MAY 23, 2008 REGARDING BENZEL DEPOSITION
I (DM_)
. . ASHBY & GEDDES
Steven J. Balick (I.D. #2114)
I John G. Day (I.D. #2403)
` Lauren E. Maguire (I.D. #4261)
500 Delaware Avenue, 8th Floor
P.O. Box 1150
Wilmington, DE 19899
(302) 654-1888
sba1ick@ashby—geddes.com
[email protected]
[email protected]
Attorneys for Plaintyy
Of Counsel:
William H. Wright
Hogan & Hartson LLP
1999 Avenue of the Stars, Suite 1400
- Los Angeles, CA 90067 A
(310) 785-4672
Steven J. Routh
Sten A. Jensen
Hogan & Hartson LLP
555 Thirteenth Street, NW _
Washington, DC 20004
(202) 637-6472
Dated: May 23, 2008
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Case 1 :06-cv-00788-JJF Document 214 Filed 06/O2/2008 Page 2 of 4
Dear Judge Poppiti:
ProMOS Technologies, Inc. ("ProMOS") respectfully submits this reply in support of its request
for an order compelling Freescale Semiconductor, Inc. ("Freescale") to re-produce its own Rule
30(b)(6) witness to testify about substantive changes made in an errata sheet.
In its response, Freescale asserts that it is not necessary to re-open the deposition because "Mr.
Benzel has already provided the infomration he had in the errata sheet to his deposition." FSI
Letter at 1. That assertion — which would deny ProMOS its right to cross-examine the witness
regarding the reasons given in the errata for making the changes - is contrary to law. Lockheed
Martin Corp. v. L-3 Comm’ns Corp., 2007 WL 2209250, *8 (M.D. Fla. July 29, 2007) (rejecting
argument that an errata sheet can take the place of a party’s right to cross-examine the witness);
sgg gbg Receivables Purchasing Co., Inc. v. Engineering and Professional, 2006 WL 1096365,
*1 (W.D. Ark. Apr. 25, 2006) ("Further, defendant may move to reopen the deposition to give
defendant a chance to impeach plaintiff with his contradictory answers"). If it were true that a
party could avoid re-opening a deposition merely by arguing that the witness already provided all
of the information in his possession in the errata sheet, witnesses would have a perverse
incentive to change deposition testimony after the fact so that they could avoid cross-
examination on critical issues. Q; Foutz v. Town of Vinton, 211 F.R.D. 293, 295 (W.D. Va.
2002) (noting that "the deposition must be reopened to give the defendants the opportunity to
impeach Fautz with his contradictory answers").
Freescale also argues that ProMOS has failed to prove that the changes made in the errata sheet
are so substantial as to render the deposition incomplete. FSI Response at l, citing Lugtig v.
Thomas, 89 F.R.D. 639 (N .D. Ill. 1981). But in Lugtig, the court did permit the re-opening of
the deposition, and it did so based on changes that were similar to those presented here. Q at
641 ("an answer of ‘yes’ was changed to ‘no’ or an answer of ‘no’ was changed to ‘yes"’). The
other case cited by Freescale on this point, Allen & Co. v. Occidental Petroleum Com., 49 F.R.D.
337, 341 (S.D.N.Y. 1970), is easily distinguishable because it involved "the witness’ changing
his testimony in one place so as to be consistent with his testimony at another place in the same
deposition." The Court premised its holding on the fact that the deposing party "already had an
opportunity to cross-examine the witness on both the original answer and the answer as changed,
such that further cross—examination is not called for." QI
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I In addition, the witness changed one answer regarding the whereabouts of a particular
person from "I think he was in where, Baida" to "I think he was in Tripoli or Baida." The court
specifically noted that this was not a contradiction on a point that was vital to the case. Q at 341.
This type of change bears no relationship to the type of change made by Mr. Benzel.
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Case 1 :06-cv-00788-JJF Document 214 Filed 06/O2/2008 Page 3 of 4
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Freescale also argues that ProMOS’s questioning of Mr. Benzel should be limited in time and
scope. With regard to time, while ProMOS would have been willing to limit Mr. Benzel’s
deposition to one hour for the sake of compromise and to avoid the need to involve the Special
Master, Freescale did not accept that offer.
REDACTED
With regard to scope, ProMOS does not wish to re—tread old ground with Mr. Benzel, but it is
entitled to ask Mr. Benzel about the reasons for his original answer, the reasons for his changes,
whether those changes originated with counsel or on his own, and any other questions "made
necessary" by the changed answers. Lugtig v. Thomas, 89 F.R.D. 639, 642 (N .D. Ill. 1981)
("Deposing counsel can ask questions which were made necessary by the changed answers,
questions about the reasons the changes were made, and questions about where the changes
originated, whether with the deponent or with his attomey.") (case cited by Freescale).
REDACTED , J
ProMOS
therefore is entitled to explore that issue, as well as ask follow-up questions that it would have
asked in the first deposition had Mr. Benzel’s original answer been "yes" rather than "no." Sgg,
gg, Reilly v. TXU Corp., 230 F.R.D. 486, 491 (N.D. Tex. 2005).
Finally, Freescale suggests that it should not be required to pay ProMOS’s costs in cormection
with the re-deposition because Freescale eventually was willing to agree to re—open the
deposition for a limited scope and limited time. That argument misses the mark — the assessment
of costs against the party responsible for making the changes would have applied even if
Freescale had re-opened the deposition voluntarily — it is intended as a mechanism for ensuring
that parties do not abuse the right to make substantive changes in errata sheets. Reilly, 230
F .R.D. at 490 (party responsible for making changes is automatically assessed "the costs of
additional discovery necessitated by the substantive changes against the deponent"). As noted in
a case cited by Freescale, "[s]ince it is defendant’s actions which necessitate reopening the
examination of defendant, the costs and attorneys fees connected with the continued deposition
will be borne by defendant}? Lugtig v. Thomas, 89 F.R.D. at 642.
Finally, it is worth correcting the record on one point. Although Freescale complains that
0 ProMOS has "again misrepresented the record" by referring to Mr. Benzel’s original testimony
as not "totally truthful," FSI Letter at 2 n.4, `
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Case 1 :06-cv-00788-JJF Document 214 Filed 06/O2/2008 Page 4 of 4
Respectfully submitted,
/s/ Lauren E. Maguire
Lauren E. Maguire
LEM/dmf
cc: Mary B. Graham, Esquire (via electronic mail)
Steven J. Routh, Esquire (via electronic mail)
David L. Witcoif Esquire (via electronic mail) ·
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