Free Order - District Court of Delaware - Delaware

Case 1:04-cv-00343-JJF Document 706 Filed 07/03/2007 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
LG.PHILIPS LCD CO., LTD., :
Plaintiff, 2
v. 2 Civil Action No. 04-343-JJF
TATUNG CO., TATUNG COMPANY E
OF AMERICA, INC., and :
VIEWSONIC CORP., :
Defendants. E
MEMORANDUM ORDER
Pending before the Court is ViewSonic Corporation’s
Objections To Findings In Special Master’s Report And
Recommendation Regarding A Portion Of LG. Philips' Motion To
Compel ViewSonic To Provide Technical And Mounting Related
Discovery (D.I. 526). In his February l4, 2007, Report And
Recommendation (D.I. 487), the Special Master concluded, based
upon contractual agreements between ViewSonic Corporation
(“ViewSonic”) and certain third party Original Equipment
Manufacturers (“OEMs”), that ViewSonic had control over the =
documents at issue for purposes of requiring production pursuant
to Federal Rule of Civil Procedure 34{a).
By its Objections, ViewSonic contends that the documents at ,

issue belong to third—party OEMs who are competitors of é
Plaintiff, LG. Philips LCD Co., Ltd. (“LPL”). ViewSonic i

maintains that its agreements with the OEMs are insufficient Z
i
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Case 1:04-cv-00343-JJF Document 706 Filed 07/03/2007 Page 2 of 4
standing alone, to support a conclusion that ViewSonic has
control over the documents. ViewSonic contends that cases within
this Circuit including Gerling Int'l Ins. Co. v. Comm'r, 839 F.2d
131, 140 (3d Cir. 1998); Novartis Pharms. Corp. v. Eon Labs Mfg.,
Ingé, 206 F.R.D. 392 (D. Del. 2002) (Farnan, J.), and Inline
Connection Corp., v. AOL Time Warner, Inc., 2006 U.S. Dist. Lexis
72724, *2 (D. Del. Oct. 5, 2006) (Thynge, Magistrate J.), require
a higher threshold for establishing control. Because ViewSonic
does not have a parent/subsidiary relationship with these OEMs
and their respective businesses are not intertwined, ViewSonic
maintains that it does not have control over the documents and
argues that a contrary holding would reduce the concept of
control to the question of whether one had the “practical
ability" to access the documents, a standard rejected by the
Third Circuit.
The Court has reviewed the findings and conclusions of the
Special Master de ngvg and concludes that the Special Master
correctly concluded in the circumstances of this case that
ViewSonic is in control of the documents sought by LPL.
Specifically, the Court agree with the Special Master that the
plain language of paragraph 10.9 of the OEM agreements provides
ViewSonic with broad and unfettered access to the documents in
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Case 1:04-cv-00343-JJF Document 706 Filed 07/03/2007 Page 3 of 4
questionl, and the Court adopts the rationale provided by the .
Special Master in support of his conclusion. The Court also
agrees with the Special Master's analysis of the cases cited by
ViewSonic and finds those cases to be distinguishable from the
circumstances here. With regard to the Novartis decision, the
Court further highlights what the Special Master noted in his
factual recitation of that case, namely that the contractual
provision in Novartis was far more limited than the provision
here and only provided the party from who production was sought
access to the technical information in question for use in
“developing products for sale in the United States.” 206 F.R.D.
at 395. Thus, Novartis is distinguishable not only because the
Court did not rest its holding on the contractual provision, but
1 Section 10.9 provides:
Supplier shall retain copies of, and provide
ViewSonic access to, all records created or
received during the performance under this
Agreement, in hard and/or electronic copies,
including records supplied by subcontracted
third parties, for five (5) years following
the date of termination of this Agreement.
In the event that Supplier becomes insolvent
or discontinues its business at any point in
time while this provision is operative,
Supplier shall immediately notify ViewSonic
of this situation and provide ViewSonic with
immediate access to the documents and the
right to take possession, custody or control
and remove the documents to a storage
facility of ViewSonic's own choosing.
(D.I. 526, Exh. 3 at VS025l47).
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also because it was presented with a factually dissimilar
contractual provision.
NOW THEREFORE, IT IS HEREBY ORDERED that:
I. ViewSonic Corporation’s Objections To Findings In
Special Master’s Report And Recommendation Regarding A Portion Of
LG. Philips’ Motion To Compel ViewSonic To Provide Technical And
Mounting Related Discovery (D.I. 526) are OVERRULED.
2. The Special Master’s February I4, 2007 Report and
Recommendation Regarding A Portion Of LG Philips' Motion To
Compel Defendant ViewSonic Corporation To Provide Certain
Technical And Mounting—Related Discovery (D.I. 487) is ADOPTED.
J uly Q , 2007 — -»¤ I ·..·...... `··¢··¤
DATE s ` ‘‘’’ DTPWRTCT J cs
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