Case 1 :O4—cv-00343-JJF Document 584-10 Filed 03/15/2007 Page 2 of 4
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BY HAND AND BY EMAIL
January 10, 2007
The Honorable Vincent J. Poppiti
Blank Rome LLP
Chase Manhattan Centre
1201 Market Street, Suite 800
Wilmington, Delaware 19801
Re: LG.Philzps LCD C0., Ltd. v. ViewSonic Corporation, et al.; A
U.S. District Court Case No. 04-343 JJ F
Dear Special Master Poppiti:
Plaintiff LG.Philips LCD Co., Ltd. ("LPL") hereby supplements the record on the issue
of ViewSonic’s control of docrunents used to assemble ViewSonic’s products under
ViewSonic’s OEM Agreements with its suppliers. LPL’s further review of ViewSonic’s OEM
agreement with Jean has not revealed any limitations placed on the legal contractual rights
granted therein. The language of Section 10.9 Document Retention in particular clearly grants
ViewSonic an absolute right to and legal control of J ean’s documentation for at least 5 years
after the termination of the agreement. Jean OEM Agreement at VS 025147. See also Delta
OEM Agreement at VS025238; Innolux OEM Agreement at VS016939; Optoma OEM
Agreement at VS025315; Tatung OEM Agreement at SUBVS004l -42; and Top Victory OEM
Agreement at VS018037}
While LPL’s review did not reveal any limitations on the contractual rights granted, LPL
has identiiied additional sections of the OEM Agreements that underscore ViewSonic’s control
over suppliers and assembly documents. Specifically, Section 5.3 under Indemnification, recites:
"lf a lawsuit is instituted against ViewSonic claiming intellectual property infringement, Supplier
shall immediately provide ViewSonic with acceptable proof of non—infringement." OEM
I ViewSonic produced three additional OEM agreements with this document retention language on the day of the
December 28, 2006 hearing. See Arima OEM Agreement at VS026027; Top Victory OEM Agreement at
VS025965; and Vision.Ban.l< OEM agreement at VS026l68.
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The Honorable Vincent J. Poppiti
THE BAYARD FIRM January 10, 2007
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Agreement with Jean at VS025 144. Thus, the OEM Agreement specifically grants ViewSonic
the legal right to obtain any evidence or documents necessary for an infringement assessment,
the exact issue in this case. Further, this provision demonstrates the common interests of
ViewSonic and Jean.
The OEM Agreement also grants ViewSonic control over ViewSonic monitors in J ean’s
possession. Section 5.1 of Exhibit 1 to the Agreement states: "Supplier will provide, free of
charge, an initial RMA swap pool for each new model to be used by ViewSonic to effect timely
customer retums." OEM Agreement with Jean at VS025l55. This section indicates that Jean
has a "pool" of monitors for ViewSonic to swap out monitors immediately if a customer received
a faulty monitor, thus establishing that Jean has a number of monitors that would also be under
the legal control of ViewSonic.
LPL has conducted a thorough search and has not found any additional Third Circuit case
law beyond Mercy Catholic, which is controlling precedent. In Mercy Catholic, the Court
confirmed the standard to determine control by stating, "In the Rule 34 context, control is
defined as the legal right to obtain required documents on demand." Mercy Catholic Medical
Center v. Thompson, 380 F.3d 142, 161 (3d Cir. 2004) (citing Gerling Int 'l Ins. Co. v. Comm 'r,
839 F.2d 131, 140 (3d Cir. 1998)). Other courts also have found that control may be established
by a legal right pursuant to a contract provision. Rosie D. v. Romney, 256 F. Supp. 2d 115, 119
r (D. Mass. 2003) (citing Anderson v. Cryovac, Inc., 862 F.2d 910, 928-929 (lst Cir. 1988)).
The Novartis case does not support ViewSonic’s position. As Your Honor stated at the
January 3, 2007 hearing, "a focus on the relationship ofthe entities is sufficient but not
necessary." Tr. at 46. Further, as also noted by Your Honor, the present case is distinguishable
from Novartis because the Product Royalty Agreement in Novartis merely granted the defendant
the right to use the teclmical information in developing products and was not as broad as the
unlimited contractual provision here. Novartis Pharms. Corp. v. Eon Labs Mfg., Inc., 206 F.R.D.
392, 395 (D. Del 2002).
ViewSonic’s continued reliance on Inline Connection Corp. v. AOL Time Warner Inc.,
2006 WL 2864586 at *3 (D. Del. Oct. 5, 2006) also is misplaced. There was no contractual
provision permitting Inline access to relevant information, and there, the non—parties were
competitors to AOL, had refused to provide information to AOL, and AOL had no legal right to
demand infonnation. As Your Honor recognized at the hearing, a hypothetical proposition that a
right to documents could have been included in a contractual relationship is notably different
from the present case where a detailed contractual provision exists.
Finally, ViewSonic’s argument that one of its suppliers may refuse to provide ViewSonic
access to requested documents is clearly premature. At this time, there is no evidence that any
supplier will breach their contractual obligations. LPL contends that the unfettered contractual
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The Honorable Vincent J. Poppiti
THE BAYARD FIRM ymumy 10, 2007
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iight of ViewSonic to access documents under its OEM Agreements cannot be ignored, and that
ViewSonic must produce the requested documents.
Respectfully submitted,
' Q
0 * ~ ’1!¤*
Ashley B.
cc: Counsel as shown on the attached certificate
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