Free Letter - District Court of Delaware - Delaware

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 1 of 96

EXHIBIT B

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 2 of 96

080707hr.txt

1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Page 1 Hearing of above matter taken pursuant to notice before Renee A. Meyers, Registered Professional Reporter and Notary Public, in the law offices of BLANK ROME, LLP, 1201 North Market Street, Wilmington, Delaware, on Tuesday, August 7, 2007, beginning at approximately 3:30 p.m., there being present: BEFORE:THE HONOROABLE VINCENT J. POPPITI, SPECIAL MASTER APPEARANCES: THE BAYARD FIRM RICHARD D. KIRK, ESQ. 222 Delaware Avenue, Suite 900 Wilmington, Delaware 19899 for Plaintiffs PHILLIPS, L.G., LCD CO., LTD, ) ) Plaintiffs, ) C.A. No. 04-343(JJF) ) v. ) ) TATUNG CO., TATUNG COMPANY OF ) AMERICA, INC., and VIEWSONIC ) CORPORATION, ) ) Defendants. ) IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ROUGH DRAFT

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 3 of 96

080707hr.txt 21 22 23 24 CORBETT & WILCOX Registered Professional Reporters 230 North Market Street Wilmington, DE 19899 (302) 571-0510 www.corbettreporting.com Corbett & Wilcox is not affiliated with Wilcox & Fetzer, Court Reporters

2 1 APPEARANCES (Continued): 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 CONNOLLY BOVE LODGE & HUTZ LLP M. EDWARD DANBERG, ESQ. 1007 North Orange Street Wilmington, Delaware 19899 Page 2 GREENBERG TRAURIG LLP FRANK MERIDETH, ESQ. VALERIE HO, ESQ. MARK KREISMAN, ESQ. 2450 Colorado Avenue, Suite 400E Santa Monica, California 90404 for Defendant Tatung Company of America, Inc. MCKENNA, LONG & ALDRIDGE, LLP CASS W. CHRISTENSON, ESQ. REL S. AMBROZY, ESQ. DEREK AUITO, ESQ. LORI BRZEZYNSKI, ESQ. 1900 K Street, N.W. Washington, D.C. 20006 for Plaintiffs RICHARDS LAYTON & FINGER FREDERICK L. COTTRELL, III, ESQ. ANNE SHEA GAZA, ESQ. One Rodney Square Wilmington, Delaware 19801 for Defendant Tatung Co.

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 4 of 96

080707hr.txt for Defendant Viewsonic Corporation 17 18 19 20 21 22 23 24 BINGHAM McCUTCHEN LLP MANUEL NELSON, ESQ. TRACY ROMAN, ESQ. 355 South Grand Avenue Los Angeles, California 90071-3106 for Defendant Viewsonic Corporation

3 1 2 3 4 5 6 7 8 9 10 11 12 SPECIAL MASTER POPPITI: Mr. Kirk, please. MR. KIRK: Yes, Your Honor. This is Richard Kirk for The Bayard Firm for the plaintiff LG Phillips, LCD Company, Ltd. With me on the line from Washington, from the firm of McKenna, Long & Aldridge, are my colleagues, Cass Christenson, Lori Brzezynski, Rel Ambrozy, and Derek Auito. MS. GAZA: Good afternoon, Your Honor, Anne Gaza from Richards, Layton & Finger on behalf of the Tatung defendants. With me on the line is Fred Cottrell as well as Frank Merideth, Valerie Ho, and Mark Kreisman Page 3

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 5 of 96

080707hr.txt 13 14 15 16 17 18 19 20 21 22 23 24 much. Let us use the agenda that was sent over yesterday for purposes of addressing the issues contained in that agenda. The first on the agenda is the status of LPL's supplemental document production to ViewSonic, and that was covered in ViewSonic's 7/27 submission and LPL's 8/three submission and in from the law firm of Greenberg Traurig. MR. DANBERG: Good afternoon, Your Honor. Ed Danberg at Connolly, Bove. With me is Manuel Nelson and Tracy Roman. SPECIAL MASTER POPPITI: Thank you very

4 1 2 3 4 5 6 7 8 ViewSonic's 8/three submission, and I have that marked as D M3 seven. MR. NELSON: Your Honor, I will be addressing the issues on behalf of ViewSonic. Shall I proceed? SPECIAL MASTER POPPITI: Yes, please. MR. NELSON: Just to recap, Your Honor, how we got here, on June 28th, we had a long hearing where Page 4

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 6 of 96

080707hr.txt 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 you ordered LPL to produce documents in response to various requests for production of documents from ViewSonic. On July 13th, we had a hearing because the issue of burden of all that production came up and LPL proposed, as a preliminary matter, to provide a limited production and to see where we'd be based upon the review of that limited production and Your Honor thought that was an acceptable preliminary approach. We have now received approximately 3,000 pages of production from LPL. But where we filed ourselves, Your Honor, is that, as you can see from the correspondence that's attached as exhibits to our submissions of August 3rd, we have identified somewhere in the order of 250 pages of drawings that are either illegible or very difficult to read, on the one hand,

5 1 2 3 4 and No. 2, while that's not necessarily explicitly stated in our submission, those drawings that are legible aren't -- do not provide sufficient details regarding the physical characteristics of the modules Page 5

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 7 of 96

080707hr.txt 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 for us to be able to determine with specificity where fastening elements are on the rear side or from the rearview of a module. And what I mean by that is perhaps I see a little circle with a cross in it that looks like a Phillips head screw, but because that drawing may not have a parts lists, there is no identification of that being, in fact, a screw. Because that particular image is really a two-dimensional drawing from above the back, you don't know what layer that screw, if it is a screw, is placed, is it actually on the rear surface of the module, does it connect the back light unit to the module, or is it in an embedded layer? So we are in a position where we actually aren't able to discern the physical characteristics that we need for this case. So where that leads us today, Your Honor, we didn't submit all of the illegible documents for the August 3rd submission because we didn't think we'd waist your time looking at what's not legible.

6 Page 6

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 8 of 96

080707hr.txt 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 SPECIAL MASTER POPPITI: I appreciate that. MR. NELSON: What we want to produce and what we proposed to LPL is we really want our samples of their products. The reason we want samples is because there is no denying what the physical characteristics of that module are once we have the samples in our hand. We have produced samples to LPL for inspection or purpose and we have done it for somewhere in the order of 150 monitors. We are just asking that they provide samples for the products that they have identified in their documents. We are going to still continue along with the preliminary proposal that Your Honor accepted that was made by LPL, but we'd like to add to that list of what's being produced samples of the products, both the prior art products and the products that were made, sold, offered for sale after 1999. And then just to tie this together, I think one of the issues might be whether we have actually a request for production of samples and I don't know if Your Honor recalls, but during the June 28th hearing, we discussed ViewSonic's request for production No. 128. And request for production No. 128 actually does request samples. At the time of the June 28th hearing, you accepted LPL's Page 7

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 9 of 96

080707hr.txt 24 objection that that request was overly broad. However,

7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 once we started going down the path of narrowing the production because of burden on -- when we actually adopted LPL's position on July 13th, in my opinion, and out of fairness, we should have actually gone back and revisited request for production 128, which involves the request for samples because, really, without the samples, we have got a lot of documents that are, A, either illegible or, B, do not give us the features that we need to be able to have our expert identify what are the precise fastening elements or items that could be fastening elements on the rear surface of the LCD module. That's the first part of our petition; we request samples of their products. SPECIAL MASTER POPPITI: Let me ask this QUESTION: I gather, based on the communication of the correspondence that I have read and I expect, based on what you are telling me now, that the clarity of the production, on paper, is not going to improve? Is that Page 8

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 10 of 96

080707hr.txt 20 21 22 23 24 what I am hearing LPL say? What you have is what you have given and the clarity is not going to get any better with looking at other documents? MR. CHRISTENSON: Your Honor, the answer to that question is yes, in part, and no, in part.

8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 In part, that's correct. We have documents for which we have produced the best available copies and they show what they show and we cannot provide better copies. In some cases, we have been able to provide better copies and we are in the process now of providing additional better copies for certain pages that were just recently identified by ViewSonic as being some of the pages they say are not legible, and that's part of the basis for them seeking module samples at this point. So I think some of those issues are likely to be cured but not all of those issues are likely to be cured. I think it's also important to point out that the documents that we have do provide -- that we have produced do provide the type of information that was requested in the document request, and that Page 9

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 11 of 96

080707hr.txt 16 17 18 19 20 21 22 23 24 information relates to the parts of the modules that LPL makes and how those modules are assembled. SPECIAL MASTER POPPITI: Let me make an observation about that, the last statement. I am certainly not in a position, based on what I have been given, to make that judgment, and nor would I expect, and I could be wrong about this, that you want to be sitting with me in a courtroom and literally pointing and click to go show me what you have just said because

9 1 2 3 4 5 6 7 8 9 10 11 I would expect that that labor and that -- I would expect it would be, No. 1, intense, and unnecessary; is that a fair comment? MR. CHRISTENSON: Your Honor, I think that sounds like a fair comment. We would want to be as efficient as we can be and I think your observations are accurate. SPECIAL MASTER POPPITI: So let me see if I understand. You are making, and I want some definition to this, you are making best efforts to give best copy? And that has not -- the roll out is not complete yet? Page 10

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 12 of 96

080707hr.txt 12 13 14 15 16 17 18 19 20 21 22 23 24 MR. CHRISTENSON: That's correct. We have produced, in some cases, we were able to go back for documents identified initially by ViewSonic, we were able to, essentially, reformat those documents on our end and in a way that provided better resolution and produce those copies. Some documents are what they are. We don't have any way to improve the legibility. Then there are some additional documents recently identified that we are going to reproduce in a different format that we think would give better legibility. SPECIAL MASTER POPPITI: And have you all taken the opportunity to go through the documents for

10 1 2 3 4 5 6 7 purposes of determining that category they are what they are, or is that yet to be done? MR. CHRISTENSON: Your Honor, I believe that those documents were identified by ViewSonic in a letter dated August 2nd at page 3. SPECIAL MASTER POPPITI: Right. MR. CHRISTENSON: And those are the Page 11

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 13 of 96

080707hr.txt 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 start. documents that we have been working to provide improved copies. SPECIAL MASTER POPPITI: I expect, and tell me, from ViewSonic's perspective, that that process should certainly continue, and I think I just heard both of you saying that it is continuing and I expect you both agree it should continue? MR. NELSON: Yes. From ViewSonic's perspective, the improved legibility should continue, but that doesn't foreclose our need for samples. In fact, if you could, I'd like to turn to Exhibit E of LPL's August 3rd submission. SPECIAL MASTER POPPITI: Exhibit E? MR. NELSON: Yeah. We can actually start with Exhibit C if you'd like. THE COURT: Start wherever you tell me to

11 1 2 3 C. SPECIAL MASTER POPPITI: I am at Exhibit C Page 12 MR. NELSON: Why don't we start with Exhibit

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 14 of 96

080707hr.txt 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 and that is correspondence dated July the 31st, 2007, from Mr. Auito. MR. NELSON: Correct. And in Exhibit C, you will see that they produced replacement drawings for roughly 40 pages we identified, 40 pages of drawings that we identified. They were able to provide replacement drawings. Just so Your Honor is aware, we identified somewhere along the order of 77 pages of drawings that needed to be replaced, but they were able to replace 40 of those 77 drawings. The rest were not be able to be replaced. That bates span, if you notice, is LPL 214 five to 21187. That's the bates scan of replacement drawings, 214 five to 21187. It will include the No. 21152. SPECIAL MASTER POPPITI: I see that. MR. NELSON: If we turn to exhibit E. SPECIAL MASTER POPPITI: Okay. MR. NELSON: Exhibit E is Bates No. 21152. It's one of those replacement drawings. This is the best they are going to be able to produce with respect to that drawing.

Page 13

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 15 of 96

080707hr.txt 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 SPECIAL MASTER POPPITI: I can tell you I looked at it and I can tell you it wasn't, from this lay person's eye, it wasn't very helpful and I gather you are telling me, from your trained eye, it's not helpful. MR. NELSON: Not only not helpful, there is no date on the document, there's no model on the document. I can't tell where the screws are. It's absolutely not helpful. The replacement documents not going to save the day in this case. And one other, if you would like me to point out another example that's been submitted by LPL in their exhibits, I will be glad to do so. SPECIAL MASTER POPPITI: Okay. MR. NELSON: If you want to turn to Exhibit F, Your Honor, the very next exhibit, on August 3rd, we have been -- I don't know if Your Honor recalls, we have been requesting documents that showed the assembly of LPL's modules for a long time now, and that's actually the crux of why we want the samples is because we can't tell how these modules actually assembled from two-dimensional figures. Exhibit F is an example after service manual that they have just produced on August Page 14

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 16 of 96

080707hr.txt 23 24 3rd. If we turn to what is page 10 of Exhibit F, pages 10 and 11.

13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 11. MR. NELSON: 010 is the best exploded view document that they have ever produced. And 11 happens to be the parts list that corresponds with that exploded view, so it's helpful because we get to see that item No. 7 in the exploded view is actually a screw there and are a couple of the screws. So, this is actually a reasonable document because it does actually break it down into three dimensions and so we can tell what layer that screw son. Unfortunately, Your Honor, we have been advised that they only have nine of these service manuals, that they have produced all of the service manuals that correspond to the top 10 products that they have since 1999. And just by simple a arithmetic, that would be somewhere on the order of more than 50 products, so they have produced nine service manuals and, of course, they don't have any service manuals for Page 15 SPECIAL MASTER POPPITI: I am there, 10 and

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 17 of 96

080707hr.txt 19 20 21 22 23 24 any of the products that were sold prior to 1999 so that would be prior art. So, this is best document I have seen in LPL's production, and I only have nine of them. SPECIAL MASTER POPPITI: Okay. Well, then, let's turn to the discussion from earlier in the day,

14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 but please remind me what the -- I am looking at the transcript where the request for production 128 was dealt with, and if you would point me to the page reference that I have already seen today, but, unfortunately, I didn't -MR. NELSON: I didn't hear the question. If I would point to the page reference? SPECIAL MASTER POPPITI: Reference to where 128 was. MR. CHRISTENSON: Your Honor, that should be, I believe, at page 128 into 129 of the transcript. MR. NELSON: Your Honor, what you also want to look at is the actual document request, itself. SPECIAL MASTER POPPITI: I have that in Page 16

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 18 of 96

080707hr.txt 15 16 17 18 19 20 21 22 23 24 front of me. MR. NELSON: Okay. SPECIAL MASTER POPPITI: Let me make this observation. I think it's fair to say that the context of what we were doing when we were looking at the theories 126, 127, and 128, it was for purposes of, No. 1, my making a ruling, and then it was also for the purpose of you all taking those rulings, having some discussion about the scope of the rulings, and coming up with a path forward is No. 1; is that a fair statement

15 1 2 3 4 5 6 7 8 9 10 from your respective positions? MR. CHRISTENSON: Your Honor, yes. On page 130 at the top, you clearly state, "I will require a meet and confer on the scope of 126 and 127 but not with respect to 128. " SPECIAL MASTER POPPITI: Correct. MR. NELSON: Yes. SPECIAL MASTER POPPITI: And I think it's also fair to say that when we were looking at 128 and looking at 128 now, one 28 eight, in its preamble Page 17

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 19 of 96

080707hr.txt 11 12 13 14 15 16 17 18 19 20 21 22 23 24 phrase, if you will, says, "All information from January 1, 1997," and by virtue of that language, I did make the ruling that, with respect to all information, that was simply too broad, it lacked precision, there was no definition, and I wasn't going to entertain that. And I think that's clear from the transcript. What is also clear, by virtue of it not being part of the transcript, unless somebody can point me to the discussion that we had, and if we had it, I simply don't recall it and I didn't comb the transcript for purposes of finding it, there was no discussion in this transcript of the last phrase in the interrogatory which says, "Including a Sam of each such flat panel display device." Is that fair?

16 1 2 3 4 5 6 MR. NELSON: That's fair, Your Honor. MR. CHRISTENSON: Your Honor, I agree with that as well, I think, and Mr. Miller, from ViewSonic, at page 125, describes request one 28 in terms of what was being sought, and he refers to information relating to etcetera, etcetera. Page 18

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 20 of 96

080707hr.txt 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 SPECIAL MASTER POPPITI: Right. MR. CHRISTENSON: It does not refer there at all to samples and modules and, presumably, that's why it was not addressed. SPECIAL MASTER POPPITI: Right. So, I mean, I think, for purposes of the record that I am dealing with, the issue with respect to the information, that is, the documents that were being sought, was squarely addressed, discussed, I disposed of it by virtue of issuing a ruling. And with respect to the request for the opportunity to have request samples, I didn't deal with it. It wasn't raised. And I -- if you want to be heard on that issue, in other words, why is it unfair to raise the issue of samples now given the fact that what we -- what I think I am faced with is not an insignificant amount of documents that don't do what, perhaps, each of you expect that they would do? Why is it unfair to look at the issue of samples? And maybe

17 1 2 it's not. Maybe you both agree it's not. I know ViewSonic agrees it's not. Page 19

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 21 of 96

080707hr.txt 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 MR. CHRISTENSON: Your Honor, from LPL's perspective, I think that your premise there was that both sides feel that our document production didn't do what we had expected, but I respectfully disagree because -SPECIAL MASTER POPPITI: How do I measure that, Mr. Christenson, without sitting down with you and whether, you know, whether it's going through the one good one and the one that is indescribable to me, how many of those do I have to see before I make a judgment that we should be looking at samples here? All of them? A sampling of them? MR. CHRISTENSON: Your Honor, that is actually a question that I discussed with ViewSonic: What specific samples were they requesting from us? And they had stated they would clarify that. Initially, in the July 27th submission to Your Honor from ViewSonic, on page 2 of that submission, they are requesting samples for what they call prior art products, which are the pre1999 products. SPECIAL MASTER POPPITI: Right. MR. CHRISTENSON: And, so, we had

Page 20

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 22 of 96

080707hr.txt 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 investigated that and determined that LPL does not maintain an inventory, if you will, of old modules from that time period where they could provide those modules. And, so, the issue that was submitted to you on the July 27th letter, I think, is moot because we can't provide the, what they call "prior art module samples." They then, very recently, shifted gears away from that and now they want us to produce samples, apparently, for all the products since 1998 that are reflected in our document production. But, you know, the -- I think it's telling that their initial request to Your Honor in the July 27th submission was for the pre1999 modules, and only when we determined we don't have those did they then say they want the more recent modules. MS. ROMAN: Your Honor, this is trace roam on behalf of ViewSonic. Just to be fair, our July 27th submission did make it clear that we were doing the best we could to review the information that had been produced at that point in time. Naturally, our primary focus from that information that had been produced was to start with the prior art documents that had been Page 21

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 23 of 96

080707hr.txt 22 23 24 produced. And, so, what we are giving you an update for in the July 27th status report fell under a heading "Lack of information regarding the prior art products."

19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 At that time, based on what we could review, we knew that the documents produced for the prior art products were insufficient and that we'd have to be looking at samples. During the meet and confer that I had with Mr. Christenson, he did inquire, Well, are you just limiting this to prior art products?, because it's unclear from your submission, or are you talking about samples for all products? So there was an ambiguity on both sides. There was no clear understanding on their part that it was only going to be prior art products. And I am sorry if it communicated that but we did try to make it clear in our July 27th submission that we weren't able to get through everything that had been produced despite how fast we were trying to go through it. So, during that meet and confer, I did say Page 22

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 24 of 96

080707hr.txt 18 19 20 21 22 23 24 that I would look into that and try and clarify it because I was not the one who had been reviewing the documents, so it was unclear to me whether the documents that had been produced relating to post patent filing products were sufficient to disclose the information that we needed to -- in order to resolve the issues for the case.

20 1 2 3 4 5 6 7 8 9 10 11 12 13 SPECIAL MASTER POPPITI: Mr. Christenson, I don't see this as sandbagging. I mean, this is production that is coming at the time it's coming. It's production that I gather was difficult to get through because some of it was simply not readable, whether "not readable" means it was not readable or lack of information or it was unclear or it was a bad copy, but it falls into the category that it wasn't worth anything. My concern is -- there are two observations I will make. No. 1, I am satisfied that the issue of samples is something that I didn't rule on. No. 2, I am inclined to -- by "inclined," I will, after I have some Page 23

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 25 of 96

080707hr.txt 14 15 16 17 18 19 20 21 22 23 24 further discussion with you, provide the opportunity to receive samples, and the path forward to that, I want some degree of assurance here that either I am going to have to dive into the production with your respective assistance so I can see for myself and I am just not sure that that's a good utilization of your time, it's not a good utilization of my time, and I am not sure that the resources that you are going to spend on all of that makes a great deal of sense. I would prefer that you forming and I have done this before, some agreement with respect to

21 1 2 3 4 5 6 7 8 9 samples, understanding that I will make some decision with respect to that O them, and if I have to tell you, on a date certain, not in a distant future, we have got to gather in a courtroom and you have got to start pointing and clicking for me, we are going to do that. " MR. CHRISTENSON: Your Honor I think I am clear on what you expect and we are still waiting to hear back from LPL to determine, you know, to what Page 24

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 26 of 96

080707hr.txt 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 extent the more recent products may exist in Sam form for which we can make a production. I believe, my understanding is, but I'd like to confirm this, that ViewSonic is amenable to paying for the costs associated with the samples that we would be producing? MS. ROMAN: That is correct. On the expedite it, Cass, if you just provide cost information with a list of products that are available, that would help to speed things along. MR. CHRISTENSON: , so Your Honor, we will proceed as you suggested. We will complete our investigation to determine what is available as quickly as we can and we will then promptly discuss that with ViewSonic toward a resolution.

22 1 2 3 4 5 SPECIAL MASTER POPPITI: My remaining question, then, is: Do I need to establish some date parameter, some deadline, some time frames to work within? Do you all want to do that and get back to me and tell me to determine a deadline or what the dates Page 25

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 27 of 96

080707hr.txt 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 forward are? MS. ROMAN: Your Honor, it's difficult for me to propose a date not knowing the difficulties that Mr. Christenson faces with getting the information he needs from his client. But as you are obviously well aware, we have the August 28th filing for the opening expert report and we do need that in advance of that so our expert can do his evaluation and prepare the report. So we'd certainly like it as quickly and expeditiously as we can. SPECIAL MASTER POPPITI: This is what I'd like to be done: Mr. Christenson, if you could, in communication with your client, discuss what we have just talked about and within the next several days, after having communication with your client, propose a date when you believe you are going to be able to finish the work, the date will be, in my view, a good faith target, and if the date has to be flipped because it's taking more time, then I am happy to hear that, that

23 1 it's taking more time and the date has to be flipped and Page 26

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 28 of 96

080707hr.txt 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 I will honor that taking you at your word. But I think it's important to establish some target date going forward that represents that good faith effort because of the deadline for expert reports that is rapidly approaching. MR. CHRISTENSON: Your Honor, I certainly will proceed as you just instructed. I think that sounds similar to the approach we took last time and we were able to -- I think that worked successfully. Are you asking for a date right now or are you asking us to -SPECIAL MASTER POPPITI: I am asking you to have conversation with your client or with whomever you need to talk with about the information you need to gather for purposes of determining what, if any, samples are available. MR. CHRISTENSON: Yes, Your Honor. So we will do that very promptly, and then we can, we will set a timetable and we can make you aware of that. MR. MERIDETH: Just so it's clear, we are talking about inclusive of prior art; am I correct? SPECIAL MASTER POPPITI: Thank you, Mr. Merideth. Page 27

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 29 of 96

080707hr.txt

24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 MR. CHRISTENSON: With respect to the older models, which are the 1997, 1998 models, as I stated before, there is no inventory of products from which we could produce samples going back that far. My understanding -- and that's an issue we had initially investigated when we received the July 27 letter. What I don't know right now is: I am assuming there is some recent product availability of samples. I just don't know the extent of that availability or how far back it goes. But I am checking for the full time period. MR. MERIDETH: I just want to make it clear that the one product that we are particularly concerned about, from Tatung's standpoint, is not the '97 or '98 product but is a 1996 product that we identified in our letter of August 3, 2007, and similar products from that time period. During the testimony of Mr. Kim, he indicated that there was a library of products, and I assume that you are going to check or have your client check in that library of products, and if stuff has been Page 28

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 30 of 96

080707hr.txt 21 22 23 24 disposed of we will have a log of what was diseases posed of, and we need to get that. Obviously, this particular module, the LC56N1 is a particularly important piece of prior art.

25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 We were able to obtain a so many of that, and you can see from the August 3rd letter how important the Sam is versus the incomplete drawing that was provided. And we are assuming that you are going to go back and find that data or tell us why it can't be found and/or has been disposed of. SPECIAL MASTER POPPITI: Mr. Christenson. MR. CHRISTENSON: Yes, Your Honor. The -as I said, we are going to look back for samples for the entire time period. I will reconfirm as to the earlier products, and if Mr. Merideth could give us the citation to the library of products that he referred to, that would be helpful because I think he might be misconstruing the testimony with respect to the purported library products. But we will work through those issues, we will check with LPL, we will continue Page 29

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 31 of 96

080707hr.txt 17 18 19 20 21 22 23 24 our investigation as promptly as we can, and whatever we can make available, we will try to work out with the other side and reach a resolution very promptly. SPECIAL MASTER POPPITI: What I do want is if there are any stumbling blocks along the way, I want you to arrange for a teleconference to get me on the line. MR. MERIDETH: Very well, Your Honor.

26 1 2 3 4 5 6 7 8 9 10 11 12 SPECIAL MASTER POPPITI: Next. MS. ROMAN: I think the next issue flows directly from this very same conversation relates to whether or not the defendants will be allowed to depose a 30(b)(6) witness on behalf of LPL regarding the documents that have been produced and the issues that arise out of those documents. MR. CHRISTENSON: Your Honor, just to be clear, this is an issue that we feel is not ripe for discussion today. We don't think this is a part of the document production set of issues that was submitted. It's an issue that we have been trying to discuss and we Page 30

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 32 of 96

080707hr.txt 13 14 15 16 17 18 19 20 21 22 23 24 are continuing to discuss with the other side, but we don't think we are at the point right now where it's appropriate to submit to Your Honor because it's not clear to us specifically all the issues that are being sought for a deposition, No. 1, from ViewSonic, and we had a discussion yesterday with ViewSonic where they said that there are some topics that they think they want to re-pursue with LPL that were previously the subject of testimony and then they also let us know yesterday, for the first time, there may be additional topics and additional deposition notices that they intend to issue. We haven't seen any of that

27 1 2 3 4 5 6 7 8 information. They have agreed to provide us the topics, but so far we don't have that information. We learned yesterday for the first time that Tatung apparently also seeks the deposition and we don't know anything about the topics that Tatung is seeking testimony on. MR. MERIDETH: I can clarify that. Specifically, the topics that we feel that we are Page 31

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 33 of 96

080707hr.txt 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 entitled the 30th B six testimony on are topic No. 8 and topic No. 23 of the prior 30(b)(6) notices. SPECIAL MASTER POPPITI: And I don't have that in front of me Mr. Merideth. MR. MERIDETH: It refers specifically to prior art. SPECIAL MASTER POPPITI: Okay. MR. MERIDETH: And Mr. Kim and Mr. Chung were unable to adequately respond to those questions, and, indeed, thought that one of the items of prior art or suggested that one of the items of prior art was a clock radio. And they were inadequate -- they were not prepared to discuss these items and we were not in a position to question them, obviously, because they hadn't produced the data. We now have it, and it is very clear that,

28 1 2 3 4 at least as to this one product, the LCO56N1, that we are entitled to question about that. SPECIAL MASTER POPPITI: Let me ask this question, or perhaps make this observation. I don't Page 32

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 34 of 96

080707hr.txt 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 think that there should be any question that the production, as it is continuing, we all had this conversation many, many months ago where I suggested to you that I would not be surprised, No. 1, that there would be a need for additional discovery, and I said that I would be open to that. It seems to me the best things to do, in light of the deadline, is to, again, without knowing what the topics are going to be other than the go that were just identified, is to set a deadline for there to be some definition as to what you are all talking about so that if there is a dispute, I can do whatever I need to do to help to resolve the dispute. I don't think I have the kind of information that would permit me to give other than a guidance or an advisory, and I don't think that's appropriate. I do think, however, that, given my responsibility to manage, we should be talking about a short time frame in terms of coming up with the topics, of coming up with the time frame, and coming up with a

29 Page 33

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 35 of 96

080707hr.txt 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 number of notices that are going to be issued. MS. ROMAN: Your Honor, I don't disagree, and this is why, during the meet and confer yesterday, I agreed to work as quickly as I could to get those topics pulled together for Mr. Christenson. As I did point out to him, though, it's a little difficult to be all inclusive about the topics with out being, unfortunately, overly broad, without knowing what the I will illegible documents that are going to be replaced are going to looks like and what information they might yield or questions they might raise. We had two issues during our meet and confer and I think the only reason it was actually being discussed with you today is because it seemed like we were at a stand still as to whether a deposition was even appropriate, period, regardless of what the topics might be. We did identify categories or general information topics in both our July 27 and our August 3rd submission, and the specific topics that we would notice would fall within that scope, at least, and there might be a couple of others, and those included not only the issue of damages, the invalidity of the patent based on the documents, potential inequitable conduct made by Page 34

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 36 of 96

080707hr.txt 24 the documents, and the structure of products, the

30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 knowledge of prior art, statements made to the examiners, so I have been going through our previous deposition notices and pulling out the topics that apply to that. But they certainly fall within the scope of at least those that we have listed in there. And during our meet and confer, as I understand it, and Mr. Christiana, certainly please correct me if I was wrong, but if as I understood it, there was certainly an objection to presenting any witness for deposition based on the general topics that we had put forth in those submissions. And I am not sure providing topics that fall within the scope of that going to get us any further along, but I am happy to agree to provide that information by tomorrow with the topics specifically noticed so that we can move this issue along. SPECIAL MASTER POPPITI: Mr. Christenson. MR. CHRISTENSON: Yes. It is helpful to see what the topics are, as we had discussed, because depending on topic, No. 1, without knowing the topics, Page 35

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 37 of 96

080707hr.txt 20 21 22 23 24 it's hard for us to take a position, specifically, and know what is or is not appropriate. And furthermore, some of these topics we might be able to resolve short of a deposition and that's something we have indicated we are willing to do, you know, an obvious example is

31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 related to authenticity of documents. So I think it's important not to put the cart before the horses and to know what are the topics specifically and then we can discuss those topics and see to what extent we can resolve the issues. MS. ROMAN: Well, I can provide you the topics by close of business tomorrow California time. I can try to get it to you sooner, but I know that I have got some people traveling that I have to communicate with on this, so I will do my best to get it before close of business, but certainly by close of business. MR. MERIDETH: We will cooperate with Ms. Roman so we give one combined list. I think it's the easiest way to do it. SPECIAL MASTER POPPITI: That makes a great Page 36

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 38 of 96

080707hr.txt 16 17 18 19 20 21 22 23 24 deal of sense. And turn around to me, I want, again, without setting any deadline, the message has to be it has to happen quickly in light of the deadlines that are rapidly approaching. Okay? MS. ROMAN: In that regard, Cass, I am available any day Thursday and Friday for a meet and confer regarding it, so just let me know once you have had a chance to review the topics, we can make ourselves available.

32 1 2 3 4 5 6 7 8 9 10 11 MR. CHRISTENSON: Very good. Thank you. SPECIAL MASTER POPPITI: The only thing you may want to be considering, then, is we may want, and somebody remind me of this at the end of our work together today, we may want to set a date, whether it's called a status date or whether, call it what we want, with me so that there is something to target, if you will. MS. ROMAN: Yes, Your Honor. I believe that would be appropriate, and I, unfortunately, think we have to put it as early as Monday because if we are Page 37

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 39 of 96

080707hr.txt 12 13 14 15 16 17 18 19 20 21 22 23 24 going to have a deposition with a witness who is overseas, we are going to be making plans and scheduling things soon. SPECIAL MASTER POPPITI: Well, then, let's just pause for a moment. I can do Monday, the 13th. It would have to be later in the day and I am not going to be able to do anything with whatever submittals you have until after Friday. So if there were submittals even late Friday, that's fine, or if you expect they are going to be, not going to be significant in terms of the amount of information, if you get them to me first thing our time, on the East Coast, on the 13th, then I should have sufficient time to look at them and prepare for

33 1 2 3 4 5 6 7 something around 3:30 or 4:00 on the 13th. MR. CHRISTENSON: Your Honor, just so I understand, working backwards; the intent, then, to try to have a discussion with you scheduled for Monday -SPECIAL MASTER POPPITI: If there are issues remaining, correct. MR. CHRISTENSON: And submissions, would you Page 38

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 40 of 96

080707hr.txt 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 want short submissions or do you have a preference as to that? SPECIAL MASTER POPPITI: I think a short submission the morning of should be sufficient. MR. CHRISTENSON: The morning of the 13th, Your Honor? SPECIAL MASTER POPPITI: Yes. Or -- either the morning of the 13th or close of business on the 17th. MR. CHRISTENSON: I just think it might depend on when we are able to have the meet and confer and when we are able to really crystalize the issues which might not be until the end of this week. SPECIAL MASTER POPPITI: That's fine. That's why I am saying the 13th is fine. MR. CHRISTENSON: Very well. Thank you, Your Honor.

34 1 2 3 SPECIAL MASTER POPPITI: Why don't we do this, then: We will schedule, be on the safe side and schedule it at 4:30, does that give you more than enough Page 39

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 41 of 96

080707hr.txt 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 time, even after submissions, to try to discuss it? MR. CHRISTENSON: That's fine, Your Honor. Thank you. MS. ROMAN: That time is fine for ViewSonic, Your Honor. SPECIAL MASTER POPPITI: All right. Next, please. MR. CHRISTENSON: Your Honor, I don't know if there are any other issues. I think we have covered the issues in ViewSonic's submission, and if that's true, I can address LPL's submission concerning the OEM documents. MS. ROMAN: Yes, we believe the issues have been covered. SPECIAL MASTER POPPITI: Okay. Let me just move some things aside. Give me one moment, please. I am going to put you on mute. The next is the status of ViewSonic production of documents from OEMs. MR. CHRISTENSON: Yes, Your Honor. This relates to the documents that ViewSonic was ordered to

Page 40

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 42 of 96

080707hr.txt 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 produce from its OEM suppliers and the OEM suppliers, as you may recall, are the companies that provide ViewSonic with the display products that ViewSonic sells in the United States which include various accused products relevant to this case. ViewSonic has taken the position that the most relevant or most of the relevant documents that relate to the assembly of their products and the issues in this case are not in ViewSonic's direct custody, but, rather, are in the possession of ViewSonic's OEMs. And in February of 2007, Your Honor concluded that, under the contracts between ViewSonic and the OEMs, ViewSonic has control over the documents by virtue of clear contractual provision that provide ViewSonic with the right to demand and obtain the documents from its OEMs. Your Honor issued a ruling concluding that ViewSonic should produce those documents and that was appealed to the Court. Recently, judge foreign has adopted Your Honor's rulings, and the reasoning set forth in your rulings and confirmed that those documents should be produced. The deadline for production was July 18, I Page 41

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 43 of 96

080707hr.txt 23 24 believe. We received a very limited production

36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 consisting of approximately 180 pages, all of which related to a single OEM company, Arima, A-r-i-m-a, Computer Corporation. There were approximately 17 other OEM suppliers that ViewSonic contacted for all of the other suppliers; however, we have not received any document production, and for only one of those OEMs did we receive any response to ViewSonic's request for documents, and that was a -- we noted that in a footnote. One of the OEMs sent a letter to ViewSonic refusing to produce documents, saying there was no operative agreement between that OEM and ViewSonic. But for the other OEMs that were presumably contact by ViewSonic, there is no response that we have seen, at least no written response. ViewSonic originally produced copies of the correspondence that were not signed or dated. They subsequently produced topics of what appear to be the actual correspondence between ViewSonic and the OEMs, Page 42

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 44 of 96

080707hr.txt 19 20 21 22 23 24 and what we have determined, reviewing that correspondence, is that ViewSonic -- we think that the request for documents that ViewSonic sent to the OEMs is not sufficient. There is no question, at this point, that ViewSonic has a contractual right to obtain the documents. I am, in reviewing the record, it appears

37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 clear to me that the expectation was that ViewSonic would make a demand for the documents, and when we reviewed the March 2007 letter, it was a form letter March 2007 that ViewSonic sent. It is simply a request. It's not a true legal demand for documents. It does not refer to, specifically, the OEM agreement. It does not specifically invoke any rights under the agreement. And, so, we feel -- and given the context of the letter, which includes that ViewSonic was objecting, that it states that the documents were due to be produced in February, where is letter was dated in March, which suggests it could be construed as moot, and for the other reasons we set forth in our August 3rd letter to Your Honor, we feel that ViewSonic has not taken Page 43

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 45 of 96

080707hr.txt 15 16 17 18 19 20 21 22 23 24 sufficient steps to obtain the documents paragraph, so what we are asking is for Your Honor to require ViewSonic to make a more appropriate and clear demand exercising the right that is they have under those contracts so that we can get these very important documents that ViewSonic does not have. We learned yesterday from ViewSonic's counsel that, apparently, ViewSonic is no N the process of preparing a follow-up letter to the OEMs, but we haven't seen that letter. I am not sure if that letter

38 1 2 3 4 5 6 7 8 9 10 has gone out or not. And we are very concerned, at this point, with the status of the OEM production. MS. ROMAN: Your Honor, unfortunately, I did indicate to Mr. Christenson, that, while I am trying to confirm whether that second letter has gone out, the general counsels for ViewSonic is traveling and I haven't been able to get confirmation of it or not. But this was certainly one of the primary concerns at the time when we discussed this at, the I believe it was the January 3rd hearing, we were concerned with what was Page 44

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 46 of 96

080707hr.txt 11 12 13 14 15 16 17 18 19 20 21 22 23 24 going to happen once we requested the documents and the OEMs chose to ignore us, that we would be in a difficult position because how do we compel production of the documents from the OEMs? A letter that went out to the OEMs very clearly stated, "While we intend to appeal this order, we must collect and prepare the requested documents for production. Accordingly, ViewSonic hereby requests that you immediately provide us with copies of all responsive documents for production, to wit, LPL, that relate to any of the ViewSonic products set forth on the accompanying lists." We even indicated to them that the documents needed to be provided in their native format and include any electronic data.

39 1 2 3 4 5 6 Certainly, the letter did not reference the contract, but it didn't need to. Your Honor's order clearly referenced the contract, and as Mr. Christenson just pointed out, one of the OEMs did respond that he had read through Your Honor's order, which was clearly based on the existence of the written contract Page 45

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 47 of 96

080707hr.txt 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 compelling the production of the documents and since no contract existed, they weren't going to respond. So, we believe that we have complied with the order as it was written and that the follow-up after it, that I have mentioned to Mr. Christenson, that I believe was taking place to send another letter, shouldn't determine whether or not the effort that has already been made is already sufficient. SPECIAL MASTER POPPITI: So you are suggesting I don't need to see the second letter? MS. ROMAN: No, Your Honor. It's my understanding that the second letter was simply a follow-up based on the fact that the Court had accepted Your Honor's report and recommendation and it was simply to remind them that this had been done and that we needed these documents. I don't think, honestly, that it would have made a difference for the production of the documents

40 1 2 given the very clear instruction in our first letter which said we need to collect these and you need to Page 46

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 48 of 96

080707hr.txt 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 immediately provide us with copies of them and the lack of response from the OEMs. SPECIAL MASTER POPPITI: Well, let me suggest this: I would expect that if any one of you, any one of you that is involved with this teleconference were asked to make the demand or the request consistent with an order of the Court, that we would wind up with -- and I didn't count the number of us participating -we would wind up with a different product from each one of us. Some may couch it in terms of, I demanded by virtue of our contractual relationship, some may couch it in terms of, CAM here is the Court's order, send it to me. My concern, as articulated in the January 3rd hearing, as I quoted in LPL's correspondence of August 3rd, and I expect it would be helpful to read it for purposes of today's record, and I realize this is only a part of it and I did not go back to the January 3rd hearing to revisit any of other language. If you think it's important to do that, then please point out that language and I will put the transcript. But the language quoted in LPL's letter for submittal of August 3rd, "This ends up back on my desk

Page 47

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 49 of 96

080707hr.txt 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 with respect to the third parties abrogating their responsibility under the contract. The only thing I certainly would expect I would kindly ask for is the nature of the request made and the expect that the nature of the request is a pure and simple request. There is nothing that is in the file or the developed file which would suggest that ViewSonic is standing in the way of that production and/or suggesting that the OEM be accountable. I don't see anything in this letter of ViewSonic softballing it. I don't know that, by virtue of ViewSonic adding a phrase to say, By the way, you are required to do it under our contract, adds anything to the letter because the order reviewed all of that. So, I am not, on the record that I have before me, I am satisfied that an appropriate request was made, request, demand, I don't really see that there be any difference in the context of the way this is teed up. I'd like to see the second request for purposes of seeing what the follow-up was. If the follow-up is consistent in its language with its first request, then I think it just Page 48

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 50 of 96

080707hr.txt 22 23 24 buttresses my view that the -- it is what it is. It's one step removed. I expect that ViewSonic could force an issue independent of this Court action somewhere

42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 else, but I don't -- I didn't contemplate that and I really don't anticipate that Judge Farnan would have contemplated that by virtue of accepting my findings and recommendations. So, on this record, I am not convinced that ViewSonic didn't make an appropriate effort to get the information from the OEM. I do, however, want to see the follow-up. MS. ROMAN: Your Honor, I will get the follow-up, as I told Mr. Christenson, as soon as I can get it. I will produce it to him as well. And I will continue making those efforts today to get it as soon as possible. The truth; Your Honor, I don't even know if the follow-up letter has even gone out. SPECIAL MASTER POPPITI: Okay. MS. ROMAN: Given the general counsel's traveling, and I don't know if he has been able to Page 49

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 51 of 96

080707hr.txt 18 19 20 21 22 23 24 authorize it being sent. SPECIAL MASTER POPPITI: I understand. I'd like to see whatever is done. MS. ROMAN: Yes, Your Honor. SPECIAL MASTER POPPITI: Just a moment. Next, please. MS. BRZEZYNSKI: I believe the next issue is

43 1 2 3 4 5 6 7 8 9 10 11 12 13 LPL's request for a protective order relating to Tatung's request for a deposition of Rebecca Rudich, an attorney with the law firm of McKenna, Long & Aldridge. May I proceed? SPECIAL MASTER POPPITI: Sure. MS. BRZEZYNSKI: Your Honor, LPL moves for a protective order because Rebecca Rudich's proposed deposition has grown from a very well limited one issue deposition where Tatung initially said it was willing to accept a declaration to what has essentially become a fishing expedition for inequitable conduct in areas where Ms. Rudich does not have any relevant information at all. Page 50

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 52 of 96

080707hr.txt 14 15 16 17 18 19 20 21 22 23 24 A brief review of the history, I think, is necessary here. Tatung initially noticed Miss Rudich's deposition on March 1st of this year relating solely to its unfounded allegations that McKenna, Long & Aldridge violated the protective order in this case. As Your Honor is aware, ML A, my firm, spent considerable time and expense responding to those unfounded allegations and providing privileged documents for in camera review. That resulted in a ruling by Your Honor that ML A had not violated the protective order.

44 1 2 3 4 5 6 7 8 9 During that process, ML A clearing opposed the taking of Miss Rudich's deposition and Tatung withdraw its subpoena of Miss Rudich. That was clearly stated by Mr. Merideth on the record and then confirmed by him in his March 16th letter, which is Exhibit D to Tatung's submission attached to his 8/1 letter. In that March 16th letter, however, Tatung did state, in the second paragraph, that it still needed testimony from Rebecca Rudich on, quote, one very Page 51

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 53 of 96

080707hr.txt 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 that. MS. BRZEZYNSKI: Then, as you can see, Your Honor, that draft declaration was solely limited to limited issue, end quote. The letter went on to say that, quote, The testimony will be limited to only classes to a specific PTO office action regarding the '079 patent related to an IBM product, end quote. The letter also stated that Tatung was willing to accept the declaration in lieu of a deposition. Tatung offered to provide a draft declaration of what it wanted and we received that draft declaration on March 29th. That draft declaration sent by Mr. Merideth was based on Exhibit F to Tatung's submission and Exhibit 1 to LPL's August 1st submission. SPECIAL MASTER POPPITI: I have reviewed

45 1 2 3 4 5 Ms. Rudich's response to its 2006 office action in the '079 application, and identification of what Ms. Rudich meant, as rear tray in an IBM 9516 product, and that's it. That declaration did not include any reference to what Ms. Rudich meant by spot mounting. In fact, there Page 52

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 54 of 96

080707hr.txt 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 was nothing further in that draft declaration about any other aspect of the '079 patent prosecution. There also was never any suggestion in that declaration or otherwise that Miss Rudich would be asked about the prosecution of the patents in suit. There was also no suggestion or reference in that draft declaration that Tatung wanted to ask her, Ms. Rudich, about any potential prior art other than the IBM 9516 product. All along, for months, a declaration was only ever limited to the identification of the term "rear tray" relating to the office action response and '079 continuation application. Even when you look at the two declarations submitted by LPL, which are exhibits four and six to LPL's August 1st submission, you reach the same conclusion. I will adhere that LPL does take issue with the statement made by Tatung in its August 1st letter that it was, quote, strung along by LPL who, apparently,

46 1 had never intention of ever agreeing to a meaningful Page 53

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 55 of 96

080707hr.txt 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 declaration or deposition, end quote. That statement cannot be anymore false and it's frankly unacceptable that that sentence was included in Tatung's submission given the history of LPL working very quickly to submit revised declarations to Tatung for its review. First, LPL sent a draft declaration on April 23rd, after first sending comments to Tatung, which Tatung then responded one day later and said that it was concerned -- excuse me, three days later, on April 26th, that it was concerned that LPL's initial draft contained subjective observations and commentary by Ms. Rudich. We then removed all subjective observations and commentary at Tatung's request and sent a revised draft just one day later, on April 27th. Again, that is declaration, like all prior declarations, focused solely on the office action response and an identification of what Ms. Rudich meant by "rear tray," and that's it. Now, months later, after the close of discovery, Tatung has increased the scope of the requested deposition even though they withdrew their deposition subpoena. Their 8/1 submission requesting a Page 54

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 56 of 96

080707hr.txt

47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 much broader deposition is not only untimely but, frankly, it is easy to dispense with. As you look at the 8/1 submission, and, Your Honor, for the first time Tatung seeks testimony from Miss Rudich relating to the prosecution history for the patents in suit. Tatung has a fundamental misunderstanding. Rebecca rude did not prosecute the patents in suit. Tatung must have known this since at least 2005, the patent prosecution history documents. Those are public records. Their initial disclosures filed on July 29th, 2005, identified son junction and three other attorneys or patent agents formerly with McKenna or its predecessor firm in addition to Rebecca Rudich as prosecuting attorneys. SPECIAL MASTER POPPITI: Did she not supervise? MS. BRZEZYNSKI: No, not this. This is what she did, and I will tell you exactly what she did: She was not the supervisor for the patents in suit, Your Page 55

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 57 of 96

080707hr.txt 21 22 23 24 Honor. It was Sung Jung and Tatung must have known this. If they wanted, at any time, to depose the prosecuting attorney for these patents in suit, they should have noticed the deposition of one of the

48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 prosecuting attorneys and it never did so. We have never represented, that Rebecca rude prosecuted the patents in suit. What she did, and we went back to verify that we were actually correct, she only signed three documents, in each of the patents in suit, and I will tell you exactly what they were. One was a change of address form that was submitted in each patent case after our merger, so that was submitted and signed by her as she did for many, many cases. The second was a non-substantive notice of appeal filed in each of the two patent cases, patents in suit. There, she signed them for Sung Jung because the deadline was engineering and son, who had directed its preparation of that notice of appeal, was unavailable. She did not prepare it. She did not direct its preparation. Page 56

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 58 of 96

080707hr.txt 17 18 19 20 21 22 23 24 The third is she signed -- she signed only one son standard active document in each case, and that was a primary amendment signed in March 2002. It was actually attached by Tatung to its submission. As you can see, she signed that over Sung Jung's signature block, because he was not available. That document was either prepared by Mr. Jung or for him at his direction. Rebecca rude was not involved in the

49 1 2 3 4 5 6 7 8 9 10 11 12 preparation of that document at all. Then we have, Your Honor, Tatung's letter of 8/three. It's a second submission. I submit to you, Your Honor, that Your Honor should disregard that submission as untimely. The deadline is clearly 8/1, two days earlier, although Tatung states in that letter that it obtained an LPL module on or about August 2nd, 2007, I frankly find that terminology curious on or about," that's right it received that product one day earlier or they didn't. Regardless of that fact, Your Honor, LPL simply disputes the allegation in that 8/3 submission Page 57

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 59 of 96

080707hr.txt 13 14 15 16 17 18 19 20 21 22 23 24 and disagrees that, regarding the relevance of the LPL product. Regardless, Rebecca Rudich's deposition relating to that LPL product is entirely not relevant or necessary. Rebecca rude did not prosecute the patents-in-suit and she never knew about that LPL LC056N1 module listed in the letter. We are agreeable to offering a simple declaration that says that she never knew about that module if that will suffice. Accordingly, Tatung's request, in its August 3rd letter to depose Rebecca Rudich regarding, quote, her knowledge of L G products that practiced the claimed

50 1 2 3 4 5 6 7 8 invention, any investigation that she performed and her general custom and practice when prosecuting patents, among other things, end quote, should be denied. She can't answer those questions if she did not prosecute the patents in suit. Tatung never noticed the depositions of any of the prosecution attorneys and it cannot legitimate he will claim that it ever intended to ask Rebecca rude Page 58

Case 1:04-cv-00343-JJF

Document 753-3

Filed 08/08/2007

Page 60 of 96

080707hr.txt 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 about these issues. " SPECIAL MASTER POPPITI: Let me just ask you a question about process for a moment because I don't have, in mind, all of the documents that you just referred to in terms of what Rebecca rude did or didn't do with the patent office. If they are in front of me in these applications, point me to them. MS. BRZEZYNSKI: Sure, Your Honor. I will point you to the only substantive document that Rebecca ever signed rolling to the prosecution of the patents in suit are attached as Exhibits B and C to Tatung's submission. SPECIAL MASTER POPPITI: Let me just pause and look at those for a moment. MS. BRZEZYNSKI: Sure. SPECIAL MASTER POPPITI: The submission of

51 1 2 3 4 August 3rd, 2007. MS. BRZEZYNSKI: Not the August 3rd, Your Honor. The August 1 submission. SPECIAL MASTER POPPITI: It's the August 1 Page 59

Case 1:04-c