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Case 1 :06-cv-00788-JJF Document 199 Filed 05/20/2008 Page 1 of 4
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May 13, 2008
VIA ELECTRONIC FILING and HAND DELIVERY
The Honorable Vincent J. Poppiti REDACTED
Special Master _PUBLIC VERSION
Blank Rome LLP
Chase Manhattan Center, Suite 800
Wilmington, DE 1.980 1 -4226
Re: ProMOS Technologies, Inc. v. Freescale Semiconductor, Inc.,
C.A. No. 06-788-JJF (QM )
Dear Judge Poppiti:
Pursuant to the Second Amended Omnibus Rule 16 Scheduling Order, plaintiff ProMOS
Technologies, Inc. ("ProMOS") respectfully submits the following unresolved discovery dispute
for the special master’s resolution. Speciiically, ProMOS seeks an Order compelling Freescale
to re-produce a witness to testify about substantive changes made to his deposition answers in an
errata sheet, in which he stated that his original answers were not "totally truthful? Pursuant to
applicable case law, ProMOS also is entitled to its costs and fees associated with the re-opened
deposition.
Pr0MOS served its Third Notice of Deposition on December 19, 2007. Topic 4 ofthe
Notice required a witness capable of testifying about "the features, functionality, uses, and
operation of each Freescale Product and of each product that incorporates or includes a Freescale
Product, including but not to the processor(s), core(s), cache memory(ies), cache
controller(s), and all other portions thereo£" Ex. l.
_ I REDACTED
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Case 1 :06-cv-00788-JJF Document 199 Filed 05/20/2008 Page 2 of 4
The Honorable Vincent J. Poppiti
May 13, 2008
Page 2
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On March 7, 2008, Freescale provided ProMOS with an errata sheet for Mr. Benzel’s
deposition. Ex. 3. That errata sheet stated as follows:
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However, Freescale has not been willing to re-open the Mr. Benzel deposition so that ProMOS
may cross—examine him regarding the statements made in his errata sheet. More recently,
Freescale oH`ered to re-open the Benzel deposition but only if ProMOS agreed to limit its
additional questioning to 30 minutes. In an effort to compromise, ProMOS offered to limit the
re—opened deposition of Mr. Benzel to one hour and to attempt to complete the deposition in less
time, if possible. But ProMOS could not agree to a hard-and-fast 30—rninute time limit because it
is not clear in advance of re-opening the deposition the extent or nature of the information Mr.
_ Benzel may have to provide or how readily such information may be adduced. In particular, if
Freescale asserts privilege or other objections during the course of the deposition, 30 minutes of
deposition time could be consumed before ProMOS has a chance to inquire about a number of
issues that it has a right to explore.
Under the case law, ProMOS clearly has a right to cross—examine Mr; Benzel regarding
substantive changes to his testimony, as reflected in the errata sheet. It is true that Rule 30(e)
permits a witness to review his deposition transcript and make changes to the _extent necessary.
However, it also is well—settled that "[i]f changes are made, this has the effect of making the
examination uncompleted, and the parties ordinarily may then examine the witness further in the
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Case 1 :06-cv-00788-JJF Document 199 Filed 05/20/2008 Page 3 of 4
The Honorable Vincent J. Poppiti
May 13, 2008
Page 3
light ofthe new answers." 8A Wright & Miller Fed. Prac. & Proc. Civ.2d § 2118. For this
reason, courts routinely grant opposing parties the opportunity to re-open a deposition for the
purposes of cross-examining a witness who has made substantive changes to his deposition
transcript, including questions directed not only to the reason for the changes but also whether
the deponent or his counsel is responsible for the changes. gg, gg, Reilly v. TXU Corp., 230
F.R.D. 486, 491 (N D. Tex. 2005) (permitting defendants to re—open deposition to cross-examirre
plaintiff about "the reasons for the changes and the source of the changes, such as whether they
came nom Plaintiff himself or his counsel.”); Erstad v. Curtis Bay Towing Co., 28 F.R.D. 583,
584 (D. Md. 1961) ("Counse1 have the right to inquire, of record and under oath, as to the
reasons for any change, andwhether such changes originated with the deponent or with the
attorney").
Courts also have found that it is appropriate to assess costs against the party responsible
for making any substantive changes to a deposition transcript. E, g_,g,, Reilly v. TXU Corp.,
230 F.R.D. 486, 490 (N .D. Tex. 2005) (noting that courts routinely assess "the costs of additional
discovery necessitated by the substantive changes against the deponent").
ProMOS therefore respectfully requests the right to re-open the deposition of Mr. Benzel
for the pmposes of cross-examining him regarding his substantive changes to his errata sheet,
and seeks any costs and fees associated with doing so. While ProMOS does not expect to need
more than an hour or so to conduct the deposition, there is no basis for limiting the deposition to
an unreasonably short period of time, as Freescale has attempted to do.
Respectfully,
/s/ John G. Day
John G. Day
J GD: nml
Attachments
cc: Mary B. Graham, Esquire (via electronic mail)
Steven J. Routh, Esquire (via electronic mail)
David L. Witcofi Esquire (via electronic mail)
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