Free Respone to Objections - District Court of Delaware - Delaware

Case 1:04-cv-00343-JJF Document 584-13 Filed O3/15/2007 Page1 0f 3

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Burrello, Meta
From: Ambrozy, Rel
Sent: Thursday, March 15, 2007 3:19 PM
To: Burrello, Meta; Connor, Cormac
Subject: FW: LG.Philips LCD Co., Ltd. v. Tatung, et al., C.A. No. 04-343-JJF
Attachments: LPL_excerpts and cases.doc; Mercy Catho|ic.doc; TRT FTC Communications.doc; Pennwalt.doc
From: Dick Kirk [mailto:[email protected]]
Sent: Friday, December 29, 2006 2:23 PM
To: Poppiti, Vincent J.
Cc: Ambrozy, Rel; Anne Shea Gaza; Frank C. Merideth, Jr.; Frederick L. Cottrell; Jaclyn Mason; Jeff Bove; JP Hong, Esquire; Mark
Krietzman; Monika Bialas; Scott Miller; Steve Hassid; Tracy Roman; Valerie Ho
Subject: LG.Philips LCD Co., Ltd. v. Tatung, etal., C.A. No. 04-343-JJF
Dear Special Master Poppiti,
Thank you for allowing us the opportunity to summarize the case law we submitted yesterday supporting LPL's position that
ViewSonic has custody or control over documents in the possession of OEMs. Below is LPL's summary of the case law:
1. The 3*d Circuit Court of Appeals recently contirmed the legal standard for custody or control over documents: "In the
context of Fed.R.Civ.P. 34(a), so long as the party has the legal right or ability to obtain the documents from another source upon
demand, that party is deemed to have control." Mercy Catholic Medical Center v. Thompson, 380 F.3d 142, 160-61 (3d Cir.
2004). See also TFT/FTC Communications, inc. v. Insurance Company of the State of Pennsylvania, No. 91—30—JJF, 1991 U.S.
Dist. LEXIS 11925, at *6 (D. Del. Aug. 6, 1991) (ordering production of documents of third party that had no parent-subsidiary
relationship nor Hnancial or managerial control by Defendant where documents at issue related to Plaintiffs claim) (J. Farnan).
2. This legal control standard is satished here. A showing of intertwined corporate identities is a sufhciem but not necessary
basis to establish legal control. See generally Pennwalt Corporation v. Plough, lnc., 85 F.R.D. 257, 263 (D. Del. 1979).
3. ViewSonic’s OEM agreements include document custody and control provisions that expressly and afhrmatively give
ViewSonic control over technical documents regarding ViewSonic’s products. (See attached summary of OEM contract
provisions furnished by email yesterday).
4. These technical documents are highly relevant to analyzing the mounting and assembly of ViewSonic’s product and may
be the best evidence available. For example, testimony in the California case from one ofthe OEM's, Jean Co., Ltd., confirms that
these documents include detailed mounting and assembly instructions.
5. ViewSonic has already exercised control over some of the documents at issue as evidenced by their production of Jean
documents in this litigation. (Bates Nos. VS022180-86).
6. The OEM custody and control provisions require documents to be maintained for and provided to ViewSonic,
distinguishing this case from others in this District cited by ViewSonic (see ln/ine Connection Corp. v. AOL Time Warner inc., No. C
A 02—272—MPT, 2006 WL 2864586 at *3 (D. Del. Oct. 5, 2006); Novartis Pharm. Corp. v. EON Labs. Mfg., 206 F.R.D. 392, 394-95
(D. Del. 2002).
7. In addition, ViewSonic and its OEMs work together as supplier and customer with common business interests to
manufacture ViewSonic’s products. Further, VS maintains very close oversight and control over its OEMs as evidenced by its
OEM agreement. This relationship is unlike the competitor/licensee relationship in Novartis, where the party had a mere "right to
use" the property.
Respectfully submitted,
Richard D. Kirk (rk0922)
3/15/2007

Richard D- Kirk Case 1:04-cv-00343-JJF Document 584-13 Filed O3/15/2007 Page 3 of 3
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