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Case 1:04-cv-00343-JJF Document 586 Filed O3/15/2007 Page 1 of 3
RECHARDS, LAYTON & FINGEZFQ
A PROFESSIONAL ASSOCRATEON
ONE Rcomav Smtmnz
" 920 Noam KING Sraner
ANNE SHEA GAZA WILMINGTON, DELAWARE IQBOI Dmzcsr {Elm.
czaoai ee a-7700 "éfigggsgiiig
Fax taczai een-7701
WWW..RLF~.COM
. March 15, 2007
BY E—MAIL & HAND DELIVERY
The Honorable Vincent J. Poppiti
BLANK ROME. LLP
Chase Manhattan Center
l20l Market Street, Suite 800
Wilmington, DE l980l
Re: LG.PfriHp.s LCD Co., Ltd. v ViewSonic Corp., et al, C.A. No. 04—·343—J.TF
Dear Special Master Poppiti:
Defendants Tatung Company and Tatung Company of America (collectively, the "Tatung
Defendants") oppose Plaintiff LG. Philips LCD Co., Ltdfs ("LPL") motion to extend the deadline for
third party discovery. Unfortunately, LPL’s motion is based mostly on mischaracterizations of the record.
As Your Honor will recall, earlier this year, LPL sought to extend the third party discovery cutoff
on multiple occasions. On each of those occasions, Your Honor denied LPL’s request to prolong
discovery. Having delayed seeking third party discovery until the eve of the discovery cutoff in the hopes
that the Court would extend the deadline, LPI. now tries to use the Tatung Defendants’ properly filed
motions for protective order as an excuse to seek another extension.
LPI. waited until mid to late February 2007 to issue 23 subpoenas out of approximately I6
different districts to the Tatung Defendants’ customers. It could have issued these subpoenas in January
or early February 2007, but it did not do so. For example, the subpoena to Radio Shack was issued on
February 26, 2007. (See LPL’s Subpoena to RadioShack Corporation, attached hereto as Exhibit A),
Contrary to LPI.,’s suggestion that it did not know the Tatung Defendants would be filing motions for
protective order until March 5, 2007, the Tatung Defendants in fact asked for a meet and confer on
February 27, 2007 regarding LPL’s subpoenas to their customers and the anticipated motions for
protective order. in an obvious attempt to "run down the clock", LPL’s counsel responded that
they were not available for a meet and conier until March 5, 2007, the return date on the subpoenas
for the production of documents. LPL sought to further delay the tiling of the motions by asking the
Tatung Defendants to provide relevant case law and suggesting that it may be willing to narrow the scope
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March t5, 2007
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of the subpoenas. After the Tatung Defendants provided the relevant case law, LPL finally indicated on
March 6, 2007 that it was unwilling to narrow or modify any of its subpoenas. Because the
depositions were noticed for mid to late March, the Tatung Defendants indicated that they may not have
sufiicient time to tile regularly noticed motions under the local rules ofthe various districts, and informed
LPL that they may have to seek expedited relief. The `1`atung Defendants stated that they would provide,
and in fact have provided, notice of these motions to LPL. (See Letter from Valerie Ho to Cormac
Connor, dated February 27, 2007, and email correspondence between the same, dated March 5-7, 2007,
attached hereto as Exhibit B) The "fatung Defendants filed their first motions on March 9, 2007 — three
days after LPI, indicated that it was unwiiling to modify the subpoenas. In short, any supposed deiay
associated with third party discovery was caused by LPL, not the "fatung Defendants.
What is even more striking is that while LPI., is asking this Court to continue third party
discovery on the grounds that it does not have sufficient time to complete this discovery, it is at the same
time opposing in the other districts the Tatung Defendants’ requests for expedited hearings. (See LPL’s
Opposition to Tatung’s Motion for Expedited Hearing, dated March E4, 2007, attached hereto as Exhibit
C) Again, LPL is creating the very delay that it is using as a basis for extending third party discovery.
LPL has repeatedly argued that the Tatung Defendants do not have standing to file motions for
protective order. LPL. apparently cites Rule 45 for this proposition, but the Tatung Defendants have
repeatedly informed LPL (including during the meet and confer) that they are filing the motions under
Ruie 26(c). As a party in this case whose confidential information is being sought by way of subpoenas
issued to third parties, the "fatung Defendants clearly have standing to file motions for protective order.
See, e. g., Fed. R. Civ. Proc. 26(c); Portland Gen. Elec-. Co. v. US. Brink Doris! Not'! Assoc., 38 F. Supp.
2d l202, 1206 n. 3 (D. Or. 1999), rev'd on other grounds, 213 F.3d 1085 (9th Cir. 2000) (noting that
FRCP .26(c) "expressiy gives" a party standing to challenge third party subpoenas); see also, In re
Asia-worth, Inc. Securities Litigation, 2002 WL 33009225 at * i (SD. Cal. 2002) (finding that under
FRCP 26, defendants have standing to seek a protective order in connection with a third party subpoena);
Spriizgbook Lenders v. Noi*!l2tvesie1·ii Nor'! Ins. Co., 12i F.R.D. 679, 680 (ND. Cal. 1988) (citing FRCP
26(c) for the proposition that {Defendant] does have standing to object to {Piaintift"s} subpoena of a third
party"). In fact, Mr. Kirk’s March 13, 2007 response to Mr. Cottrell’s email to Your Honor from this
week essentially conceded that the Tatung Defendants have standing to tiie these motions, but LPL made
no attempt to revise its motion to Your Honor in which it mistakenly argued that the Tatung Defendants
have no standing.
As to additional items, the `fatung Defendants have not impeded third party discovery. In fact, it
is important to note that their motions for protective order do not seek to bar all discovery from third
parties. The motions merely seek to limit the document requests and deposition topics to the accused
products. The subpoenas currentiy seek technical, customer, and pricing information regarding ail visual
display products made or sold by the Tatung Defendants. (See, eg , Exhibit A hereto)
As for LPL’s request that the Tatung Defendants list the parties they have contacted regarding the
motions for protective order, LPL cites no case law to support this request. The Tatung Defendants are
entitled to inform their customers that they are tiling motions for protective order in connection with the
subpoenas. Moreover, LPI, itself has had numerous communications with subpoenaed parties and have
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The Honorable Vincent J. Poppiti
March 15, 2007
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not provided those communications to the Tatung Defendants.
As to LPL’s request that the Tatung Defendants provide notice regarding the motions, this is a red
herring. The `1`atung Defendants have provided notice to IPL of all the motions tiled, including email
and mail notice. As Mr. Kirk’s letter conceded, counsel for LPL was served with the motions. LPL’s
main complaint appears to he that Ms, Shari Kievens, another attorney with the McKenna firm, was not
one ofthe email recipients. Ms. Klevens, however, was not on the original service list and counsel for the
Tatung Defendants simply were not aware of Ms. I{levens’ role in this case. Moreover, LPL does not
explain why its many other attorneys did not sirnpiy forward to Ms. Klevens the emails regarding the
motions for protective order. In any event, Ms. Klevens has since been added to the service list. On
March l2, 2007, the `[atung Defendants also provided a chart to LPI., detailing the various motions that
were fiicd and the hearing dates schedule. (See Chart of Motions for Protective Order Regarding Third
Party Subpoenas, attached hereto as Exhibit D)
Finaliy, LPI,. completely failed to meet and confer in good faith regarding this motion. Although
the parties met and conferred in January and February regarding LPL,’s prior requests to extend third party
discovery, the parties have never met and conferred about this latest motion.
Accordingly, LPL’s motion should he denied in its entirety.
Respectfully,
i
Anne Shea Gaza
(#4093)
ASG/afg
cc: Clerk ofCourt (via CM/ECF)
Richard Kirk, Esquire (via electronic mail)
Cormac T. Connor, Esquire (via eiectronic mail)
Mark Krietaman, Esquire (via electronic inaii)
Scott R. Miiler, Esquire (via electronic mail)
Jeffrey B. Bove, Esquire (via electronic rnaii)
RL-Fl-3i27455—l

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