Free Letter - District Court of Delaware - Delaware

Case 1:06-cv-00788-JJF

Document 100

Filed 12/19/2007

Page 1 of 3

MORRIS, NICHOLS, ARSHT & TUNNELL
1201 N O R T H M A R K E T S T R EE T P.O. B O X 1347 W I L M I N G T O N , D E L A W A R E 19899-1347 302 658 9200 302 658 3989 F A X
M A R Y B. G R A H A M 302.351.9199 [email protected]

LLP

December 19, 2007

VIA E-FILING The Honorable Joseph J. Farnan, Jr. United States District Court Federal Building 844 King Street Wilmington, DE 19801 Re: Dear Judge Farnan: In connection with the Court's review of the deposition of Freescale's Rule 30(b)(6) witness, Michael Snyder, Freescale notes the following support for certain points discussed at the hearing on Thursday, December 13: Examination of witness preparation: 1. As noted, Mr. Snyder was prepared for his deposition exclusively by counsel for Freescale. Although he was instructed not to answer generally-worded questions about his preparation with other persons, he then was allowed to answer whether he had met with counsel (p. 14, l. 6) and for how long ( p. 16, ll. 10-14). He also testified, "No," in response to the question, "Did you do anything to prepare for your deposition today other than meeting with counsel?" (p. 15, l. 16 - p. 16, l. 8). He answered various specific questions that would have revealed the identity of other persons he might have consulted, had there been others, and his answers confirmed that he had not met with persons other than counsel (see, e.g., p. 103 at ll. 4-7 [; p. 104, l. 20 - p. 105, l. 3). Thus, in the end, the witness testified as to the persons with whom he had prepared. 2. The documents used for Mr. Snyder's preparation were collected by counsel and are highly protected work product under Sporck v Peil, 759 F.2d 312, 316 (3rd Cir. 1985). That case is strict on the foundation required for discovery of such documents. 759 F.2d at 318. Under Sporck, one may not ask generally, "Which documents did you review," or even ProMOS Technologies, Inc. v. Freescale Semiconductor, Inc. C.A. No. 06-788 (JJF)

Case 1:06-cv-00788-JJF The Honorable Joseph J. Farnan, Jr. December 19, 2007 Page 2

Document 100

Filed 12/19/2007

Page 2 of 3

generally, "Which documents did you review that refreshed your recollection." Id. Rather, examining counsel must establish a foundation by (1) eliciting "specific testimony" and (2) only then asking "which, if any, documents informed that testimony." Id. Here, the witness in fact was allowed to testify about the document used to refresh his recollection that listed, by core, the various accused products, the types of caches they contain, and the related Freescale documents (see pp. 19-20). ProMOS has not suggested that they have otherwise established the requisite foundation of Sporck. Instead, ProMOS asked general questions, without reference to specific testimony, such as, "Did you review any documents that refreshed your recollection about any facts that you're here to testify about before you appeared for today's deposition?" (see p. 18, ll. 8-11; see also p. 21, ll. 4-5). Under Sporck, Freescale was not required to have the witness answer such general questions. 3. At the hearing, the Court appeared interested in the conduct of depositions in the Texas case. As can be seen from the attached excerpt from the rough transcript of yesterday's rule 30(b)(6) deposition of ProMOS, ProMOS's counsel engaged in the same type of conduct that he complained at the hearing was improper, e.g. instructing the 30(b)(6) witness on grounds of privilege not to answer the question of how much time had been spent in preparation for the deposition (an instruction that came after and despite the parties' agreement mentioned at the hearing, and below). Thus, ProMOS's own conduct confirms the propriety of Freescale's objections to similar lines of inquiry. Subsequent agreement: As noted, the parties have now reached an agreement that will apply as far as the questions that Rule 30(b)(6) witnesses will be allowed to answer (see attached). Thus, the issues raised by ProMOS about proper examination permitted of the preparation of a Rule 30(b)(6) witness are moot. Breaks taken where question pending: ProMOS complained that Freescale took breaks while questions were pending. From the transcript, it appears that ProMOS believed this occurred in two instances. The breaks were explained at the deposition and were legitimate (see pp. 57 and 76). Objections as to scope: Attached are the objections Freescale served prior to the deposition, based on Freescale's understanding of the parties' agreement narrowing the topics to products ProMOS had actually identified as accused ("Exhibit E products"). That objection is also discussed in the first portion of the transcript. The witness was prepared in accordance with Freescale's understanding of that agreement.

Case 1:06-cv-00788-JJF The Honorable Joseph J. Farnan, Jr. December 19, 2007 Page 3

Document 100

Filed 12/19/2007

Page 3 of 3

Respectfully,

/s/ Mary B. Graham
Mary B. Graham (#2256) MBG/dam Enclosures cc: Dr. Peter Dalleo, Clerk (via e-filing and hand delivery) John G. Day, Esquire (via email) Sten A. Jensen, Esquire (via email) David L. Witcoff, Esquire (via email)
1341137

Case 1:06-cv-00788-JJF

Document 100-2

Filed 12/19/2007

Page 1 of 2

Case 1:06-cv-00788-JJF

Document 100-2

Filed 12/19/2007

Page 2 of 2

Case 1:06-cv-00788-JJF

Document 100-3

Filed 12/19/2007

Page 1 of 2

Case 1:06-cv-00788-JJF

Document 100-3

Filed 12/19/2007

Page 2 of 2

Case 1:06-cv-00788-JJF

Document 100-4

Filed 12/19/2007

Page 1 of 6

Case 1:06-cv-00788-JJF

Document 100-4

Filed 12/19/2007

Page 2 of 6

Case 1:06-cv-00788-JJF

Document 100-4

Filed 12/19/2007

Page 3 of 6

Case 1:06-cv-00788-JJF

Document 100-4

Filed 12/19/2007

Page 4 of 6

Case 1:06-cv-00788-JJF

Document 100-4

Filed 12/19/2007

Page 5 of 6

Case 1:06-cv-00788-JJF

Document 100-4

Filed 12/19/2007

Page 6 of 6