Free Redacted Document - District Court of Delaware - Delaware

Case 1 :O6Â¥cv-00788-JJF Document 175 Filed O3/28/2008 Page 1 of 2
Asn-1EY 8. GEDDES
ATTORNEYS AND COUNSELLORS AT LAW TELEPHONE
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March 24, 2008
VIA ELECTRONIC MAIL
AND HAND DELIVERY
The Honorable Vincent J. Poppiti REDACTED
Spccia] Master PUBLIC VERSION
Blank Rome LLP
Chase Manhattan Center, Suite 800
Wilmington, DE il 9801 -4226 I
Re: ProMOS Technologies, Inc. v. Freescale Semiconductor, Inc.,
C.A. No. 06-788-JJF (QM 4)
Dear Judge Poppiti:
if if We are in receipt of Mary Graham’s letter of 11:00 this morning, and we want to provide
" our reaction to the proposal made therein in advance of this aftemoon’s conference call. As the
record already reflects, we would welcome additional information from Freescale on the identity
of all cache-containing products manufactured or sold by Freescale, as we believe that the
production of such information by Freescale is long overdue. However, Freescale’s proposal
that it provide us with a list of products that contain already—accused cores and a list of cores
"within the same families" as such already-accused cores, plus certain damages and technical
documents, is insufficient to resolve the issues presently before the Special Master, particularly
in light of Freescale’s suggestion that its proposal “would take some time to_ complete."
Fig, Freescale has not yet offered to provide us with complete information needed to
supplement and correct the deposition testimony of Mr. Snyder regarding the identity of cache-
containing products manufacture or sold by Freescale (and required by Interrogatory No. 1
nearly 10 months ago). ProMOS has sought in discovery a list of all products that contain cache
memory, not just products that contain already-accused cores or other cores "within the same
families." There is no logical reason to limit discovery to those cores, as Freescale proposes.
Indeed, as the LG.Philips case circulated by the Special Master makes clear, the burden is on
Freescale to iirst provide teclmical information about all of its cache-containing cores and
products so that ProMOS can make an infringement determination with respect to such cores and
products; the burden is not on ProMOS to identify by name the products and cores on which it
desires discovery.
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Case 1 :06-cv-00788-JJF Document 175 Filed O3/28/2008 Page 2 of 2
,. The Honorable Vincent J. Poppiti .
March 24, 2008
Page 2

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REDACTED That statement suggests that
A Freescale may be limiting discovery in ways that are not even clear yet.
Second, Freescale’s proposal does not address — and, indeed, appears designed to side-
step — the issue of appropriate sanctions, which ProMOS is not in a position to evaluate or
compromise until it obtains a complete list of Freescale Products that were shielded from
discovery. This issue is particularly important because trial is scheduled for June 30m in this
case, and ProMOS may need evidentiary sanctions to avoid undue prejudice resulting from
Freescale’s conduct. ProMOS also may be entitled to monetary sanctions for the wasted time,
resources and energydevoted to seeking basic discovery from Freescale in this case. ProMOS
will not be in a position to determine the precise relief needed to remedy Freescale’s discovery
misconduct until alter it receives the information that Freescale has been withholding.
Third, ProMOS is troubled by Freesca1e’s suggestion that it "would take some time to
complete" even the limited production of infonnation proposed in Freescale’s letter. There is no ‘
apparent reason that Freescale cannot generate a complete (or very near-complete) list of its own
products and cores that contain cache memory in short order, nor should it take much time to
gather sales and technical information regarding such products and cores. It would be surprising
if Freescale had not already undertaken such efforts in order to evaluate its position in this case.
, As noted in ProMOS’s January ll letter, since the outset of discovery, Freescale has
.._.. sought to delay this action to ensure that its case against ProMOS in the Eastern District of Texas
i i_.» _ _ will proceed to trial before this case. Freescale’s most recent proposal — with its suggestion that
‘ any resolution of problems created by its own discovery misconduct will take "some time" —
appears to be part and parcel of that effort. Judge Schell recently has advised the parties that he
will not issue a Markrnan ruling in the Texas case until late April or May 2008, as a result of ‘
. which that case is unlikely to go to trial in May, as previously scheduled. Judge Schell has yet to
set a new trial date, but it seems likely that trial in the Texas case will not occur until late
summer or early fall 2008. Under no circumstances should Freescale be permitted to delay the
June 30th trial in this case, since that would simply reward Freescale for its own discovery
E misconduct. We will be prepared to discuss this matter in greater detail on this aftemoon’s call.
Respectfully,
. /s/ Hfany Geyer Lydon
Tiffany Geyer Lydon
TGL/dmf
cc: Mary B. Graham, Esquire (via electronic mail)
Steven J. Routh, Esquire (via electronic mail)
David L. Witcoff, Esquire (via electronic mail)
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