Free Redacted Document - District Court of Delaware - Delaware

Case 1:06-cv-00788-JJF

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Filed 03/28/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE PROMOS TECHNOLOGIES, INC., Plaintiff, v. FREESCALE SEMICONDUCTOR, INC., Defendant. ) ) ) ) ) ) ) ) )

C.A. No. 06-788 (JJF)

REDACTED PUBLIC VERSION

FREESCALE'S MARCH 24, 2008 LETTER TO SPECIAL MASTER

DM4
MORRIS, NICHOLS, ARSHT & TUNNELL LLP Mary B. Graham (#2256) James W. Parrett, Jr. (#4292) 1201 N. Market Street P.O. Box 1347 Wilmington, DE 19899-1347 302.658.9200 [email protected] Attorneys for Freescale Semiconductor, Inc.

OF COUNSEL: David L. Witcoff Kevin P. Ferguson John M. Michalik JONES DAY 77 West Wacker Chicago, IL 60601-1692 312.782.3939 James L. Wamsley III F. Drexel Feeling Thomas R. Goots JONES DAY North Point 901 Lakeside Avenue Cleveland, OH 44114-1190 216.586.3939 Dated: March 24, 2008
Redacted Filing Date: March 28, 2008

Case 1:06-cv-00788-JJF Dear Judge Poppiti:

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This letter responds to the Special Master's question to Freescale during the March 20 teleconference (Tr. 43) inquiring whether Freescale believed it had an obligation to supplement the testimony of Mr. Snyder relating to the ProMOS list of accused products. In keeping with its expressed desire to get discovery issues behind it, Freescale also makes a suggestion for resolving the current dispute. At the outset, Freescale notes that it has never understood Mr. Snyder's testimony to be incomplete, false or misleading 30(b)(6) testimony, or otherwise in need of supplementation. To the contrary, Freescale has always understood that the subject of the identification of Freescale products was not one of the 30(b)(6) topics as actually noticed. Indeed, during the March 20 teleconference, counsel for ProMOS conceded that ProMOS chose not to include the topic of identification in its 30(b)(6) Notice: "We didn't say, Produce a witness that can identify every Freescale product because we would have simply had the same argument that we have been having for two months about why that's too broad." (Tr. 27.) Mr. Snyder's testimony itself also explicitly indicates that his answers reflected only his personal knowledge.1

1

Rule 30(c)(2) requires that deposition testimony be taken "subject to any objection," and Freescale objected to the questions here as beyond the scope of the notice. When Freescale later indicated that it would make Mr. Snyder's testimony a 30(b)(6) and that he would "be allowed to testify as a 30(b)(6) under these topics," it did not create a new deposition topic where none had existed.

Case 1:06-cv-00788-JJF The Honorable Vincent J. Poppiti March 24, 2008 Page 2

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The foregoing discovery activities would take some time to complete and place a considerable and unanticipated burden on Freescale. As explained during the teleconference of January 17, Freescale had sought to provide everything that we understood that ProMOS was asking for by producing the documents and depositions that went forward over the last several months. The unexpected need to retread some of the same ground again is an unwelcome side effect that Freescale would take on if it would resolve this discovery dispute. Freescale therefore requests that the telephonic hearing currently scheduled for today at 2:00 p.m. be converted into a teleconference in which the foregoing can be discussed informally with the goal of reaching a practical resolution of the matters raised by ProMOS in DM-4. Respectfully,

/s/ Mary B. Graham
Mary B. Graham (#2256) MBG/dam cc: All counsel on service list
2165509

Case 1:06-cv-00788-JJF

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