Free Letter - District Court of Delaware - Delaware

Case 1:04-cv-00343-JJF Document 608 Filed O3/30/2007 Page 1 of 3
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March 30, 2007
BY E-MAIL & HAND DELIVERY
The Honorable Vincent J. Poppiti
BLANK ROME. LLP
Chase Manhattan Center
1201 Market Street, Suite 800
Wilmington, DE 19301
Re: LG. Philips LCD C0., Ltd. v. ViewSonic Corp., et nl., CLA. No. 04-343-.lJF
Dear Special Master Poppiti:
Defendants "1"etung Cernpeny and Tewng Company of America, rm, (lumpy, ·=ir,m,,,g·»)
respectfully submit this letter brief in support of their motion to compel Plaintiff LG. Philips LCD Co.,
Ltd, ("LPL") to allow inspection of those products in LPL’s possession, custody or control that LPL
claims were manufactured by Tatung,
This motion is necessitated by LPL’s continued refusal to permit Tatung to inspect the alleged
Tatung products in LPL’s possession, most of which LPL is accusing of infringement in this case and
presumably will use at trial. Tatung’s Document Request 57, served on October I4, 2005, seeks "all
documents and thing.; upon which LPL will rely at trial to support LPL’s contention that any product of
Tatung infringes any claim of any of the patents-in—suit." On March 15, 2007, 'fatung specifically
requested an inspection of all alleged 'famng products in LPL”s possession, custody or control, See Letter
dated March 15, 2007 at Exh. l. LPL has refused to permit such an inspection, claiming that an
inspection of the products would invade the work product ofLPL’s attorneys. See Letter dated March 21,
2007 at Exh. 2.
A. Legal Standard For Inspections.
Rule 26(b)(1) ofthe Federal Rules of Civil Procedure allows parties to obtain discovery regarding
any unprivileged matter that is "relevant to the claim or defense of any party?] For good cause, a court
may order discovery of any matter relevant to the subject matter of the action. Pursuant to Rule 34, a
party may request to inspect ‘°any tangible things which constitute or contain matters within the scope of
Rule 26(b) and which are in the possession, custody, or control ofthe party upon whom the request is
served,"
[ LPI,. has demanded that Tatung explain why an inspection is "necessary." See Letter from Cormac
Connor dated March l9, 2007 at Exh,. 3, LPL is incorrect; the standard for inspections is relevance, Sec
Curio, Inc. v. Pal! Corp., il6 F.R.D. 279, 231 (ED.1\l.Y. 1937) (allowing inspection and stating that "only
a showing of relevance is necessary and this has been met")..
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Case 1:04-cv-00343-JJF Document 608 Filed O3/30/2007 Page 2 of 3
The Honorable Vincent 3. Poppiti
March 30, 2007
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Courts routinely allow inspections of tangible things in the other pa1ty’s possession if they are
relevant to the action. See Plosse v. Tyco Elec. Corp., 448 F.Supp. 2d. 302, 306 (D. Mass. 2006)
(granting defendant’s motion to compel and ordering plaintiff to produce all computers and media storage
devices in plaintiffs possession, under his control or accessible by him, for inspection by defendanfs
expert); Minlcs v. Polaris Indus., Inc., 2006 WL 2400954 at *1 (MD. Fla. 2006) (ordering plaintiff to
produce for inspection “all documents within its possession, custody or control" responsive to defendarifs
requests, given that plaintiffs objections were not supported by facts or law).
Particularly in patent suits, inspections are commonplace. See Cuno Inc., il6 l*.R.D. at 280~81
(overruling objections and holding that "inspections are not an extraordinary means of discovery in patent
suits"); Micro Chem, Inc. ii. Lexrron, Inc., 193 F.R.D. 667, 670 (D. Colo. 2000) (granting defendant’s
motion to compel and allowing defendant and defendanfs expert to inspect plaintiffs commercial
embodiment of patcnt—in—suit); Minnesota Mining & Mfg. v. Niupon Carbide Inc2'zrs.., l71 HRD. 246, 248—
49 (D. Minn. i997) (granting motion to compel inspection of premises because an "inspection provides
the most efficient and effective means for determining whether a patented process has been infringed").
B. Tatung Is Entitled To Inspect The Products To Determine The Manufacturer Of The
Products And To Conduct Its Own Analysis.
Whether or not Tatung manufactured the accused products is not only relevant, but is a
dispositive issue in this case. LPI., has indicated in its interrogatory responses that it possesses a number
of alleged Tatung products accused of infringement? See LPL’s Third Supplemental Response at Exh. 4.
Since then, LPL has accused three additional products, which it presumably possesses.3 Because many of
the companies for which Tatung provides OEM services also utilize other manufacturers to make the
same product, in order to accurately determine which supplier actually manufactured a specific product, a
physical inspection is necessary.4 Tatung therefore is entitled to examine and disassemble the products to
confirm that they are in fact made by Tatung.
Tatung is also entitled to examine the products to conduct its independent analysis with respect to
2 i;PL’s 'Third Supplemental Response to Interrogatory Number 2l states that LPI., has in its possession
the following models: Ll7AMTN—U0l; Ll7AMTT~i; VNAFTW; TelArt NTl9S (Tatung 17121);
LT 17A; V2.0KQDX—U02; TLM l705; Li 7UCCT—U02; TLM 1905; TLM i503; TLM 1703; L5CTSDP—
UO}; LSCDS; L5CDSDP—U2l.
3 The additional accused products presumably in LPL’s possession are the following models: HP
RG556AA; lloFCBT; Hitachi 37'HDL52.
4 LPL has offered, in lieu of inspection, serial numbers of the products in its possession. This proposal is
insufficient for two reasons. First, Tatung is entitled to inspect the products to verily that information.
Second, Tatung is entitled to inspect the products in order to conduct its own analysis. LPL also offered
to provide unspecified photographs ofthe products. Photographs selected by LPL would not be sufficient
for the same reasons. Moreover, LPL fails to explain why providing photographs which are presumably
taken and selected by LPL’s counsel would be acceptable whereas making the products themselves
available for inspection wouid invade counsel’s work product.
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Case 1:04-cv-00343-JJF Document 608 Filed 03/30/2007 Page 3 of 3
The Honorable Vincent .1. Poppiti
March 30, 2007
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infringement/noninfringement. Presumably, LPI,. has performed an infringement analysis regarding the
alleged Tatung products in its possession, and will rely on that analysis at trial. Tatung is likewise
entitled to examine the products in order to perform its own independent analysis and to develop
appropriate defenses.
C. LPL Has Not Offered Any Authority For Its Claim That Inspection Would Invade Attorney
Work Product.
In refusing to allow inspection, LPL has asserted that "Tatung’s request is designed to probe into
attorneys’ thought processes and mental impressions." See Exh. 3. LPI, has also stated that an inspection
"would require LPL to reveal attorney work product and would be unnecessarily burdensome to LPL."
See Email from Cormac Connor dated March 29, 2007 at Exh. 5. As the objecting party, LPL has the
burden of establishing privilege.. LPI., has not, however, offered any particularized facts or case law in
support of its assertion.
LPL’s work product claim is without merit. The products themselves are not in any way
privileged or protected by the work product doctrine, which only protects against disclosure ofthe mental
impressions, conclusions, opinions, or legal theories of an attorney. See Fed. R. Civ. P. 26(b)(3); sec also
FTC v. Grolicr Inc., 462 U.S. 19, 25 (l983). Moreover, LPL’s attorneys’ thought processes or mental
impressions will not be divulged in any way by Tatung or its expert’s examination and disassembly of the
products. Tatung has not and will not ask LPL or its attorneys to do anything during the inspection.
Accordingly, Tatung respectfully requests that Your Honor order LPL to allow inspection of all
alleged Tatung products in LPL’s possession, custody or control, Counsel for Tatung has offered to
schedule the inspection after the depositions set for mici—April 2007 have been conducted in an effort to
accommodate LPL’s schedule. Tatung will continue to cooperate in scheduling the inspection so it can
occur at a mutually convenient time.
Respectfully,
Frederick L. Cottrell, lll (#2555)
FLC,lII/afg
cc: Clerk of the Court (By Electronic Filing)
Richard Kirk, Esquire (via electronic mail)
Cormac T. Connor, Esquire (via electronic mail)
Lora Brzezynski, Esquire (via electronic mail)
Mark Krietzman, Esquire (via electronic mail)
Scott R. Miller, Esquire (via electronic mail)
Jeffrey B. Bove, Esquire (via electronic mail)
Tracy Roman, Esquire (via electronic mail)
attr-312;.574-1

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