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ELECTRONICALLY FILED
BY HAND AND BY EMAIL
March 8, 2007
The Honorable Vincent]. Poppiti
Blank Rome LLP
1201 Market Street, Suite 800
Wilmington, DE 19801
Re: LG.Philtps LCD C0., Ltd. v. ViewSonic, C.A. N0. 04-343 JJF
Dear Special Master Poppiti:
This is Plaintiff LG.Philips LCD Co., Ltd.’s ("LPL") response to the Tatung Defendants’
(collectively, "Tatung") March 6, 2007 letter requesting reconsideration of Your Honor’s denial
of their motion to compel LPL’s deposition witness, Young Woo Cho, to identify all documents
that he reviewed with counsel in preparation for his deposition. Tatung has not introduced any
change in facts or law and has not identified any clear error committed by Your Honor in
denying Tatung’s oral motion. See Max ’s Seafood Cafe ex rel. Lou-/inn. [nc. v. Quinteros, 176
F.3d 669, 677 (3d Cir. 1999) (motion for reconsideration standards). Furthermore, Tatung’s
requested relief would violate established Third Circuit standards applicable to the work product
doctrine and attorney-client privilege. Tatung never established a foundation for their demand
that Mr. Cho reveal his attorneys’ protected work product. Tatung’s Motion should be denied.
At the outset ofthe March 5, 2007 deposition of Mr. Cho, Tatung improperly tried to
invade privilege and work product under the guise of Fed. R. Evid. 612. Before he had elicited
any substantive testimony hom Mr. Cho, Tatung’s counsel tried to get Mr. Cho to reveal the
types of documents that he had reviewed with LPL’s attorneys before the deposition. In fact
Tatung’s first l2 questions dealt only with background. (See Depo. of Cho at lzl-5:7 (Mar. 5,
2007), submitted with Tatung’s Motion). Without seeking any further testimony on any topic or
document, Tatung began to probe LPL’s protected work product:
Q: Can you tell us what you did to prepare for your testimony today?
A: Because this patent was tiled for application a long time ago, I need to refresh my
recollection of it. So I read the patent.
Q: Is there anything else that you did to prepare for the deposition?
A: I arrived here late aftemoon of Saturday and this past Sunday I had some discussions
with my attorneys at McKenna Long Aldridge.
Q: And what language did you use in that meeting?
653608—1
Case 1 :04-cv—OO343-JJF Document 556 Filed O3/08/2007 Page 2 of 4
The Honorable Vincent J. Poppiti
THE BAYARD FIRM March s, 2007
Page 2
A: lhad a translator, Ms. Ann, and she assisted me. So there was some English I
spoke, but it was a lot of Korean with her assistance.
Q: That would be Ms. Park?
A: Yes.
Q: How long did your meeting last?
e . L ; 4. A: i——¥ouir=etalking..about Sunday?
Q: Yes, sir. CD4 I WTC iiii T:_lATTl`T llii T
A: About 6 hours.
Q: Did you look at any documents other than the patents?
MR. BONO: l’m going to instruct the witness to not answer that question with respect to
documents you reviewed in the presence of counsel, because it is covered by the
attorney—client privilege. To the extent you reviewed documents outside the presence of
counsel, you are free to answer the question. ,....-mr-——
MR. MERIDETH: J ust a moment. The question was whether he reviewed any
documents, not the substance of any review, and l believe that that is not covered by the
attorney-client privilege.
(Id. at 5:8—6:l5 (emphasis added).)
The transcript shows that Tatung’s inquiry was not narrowly focused and came nowhere
near laying the foundation necessary to invoke Rule 612 or establish that Mr. Cho’s testimony
actually relied on documents previously selected by and reviewed with counsel. The Third
Circuit has determined that "the selection and compilation of documents by counsel. .. in
preparation for pretrial discovery falls within the highly-protected category of opinion work
product." Sporck v. Pell, 759 F.2d 312, 316 (3d Cir. 1985) (emphasis added). The court also
noted that, "[i]n selecting and ordering a few documents out of thousands counsel could not help
but reveal important aspects of his understanding of the case." Id. (quoting James Julian, Inc. v.
Raytheon Co., 93 F.R.D. 138, 144 (D. Del. 1982)). In Sporck, the court denied the plaintiff s
motion after finding that the deposing attorney demanded the information before asking any
specqic questions about the subject matter ofthe deposition, as would he necessary to implicate
Rule 612. Id. at 318.
The relief that Tatung seeks would contradict Sporck, which is the controlling authority
on this issue and which expressly protects against identifying documents reviewed with counsel.
In Sporck, the Third Circuit held that "[p]roper application of Rule 612 should never implicate an
attorney’s selection, in preparation for a witness’ deposition, of a group of documents that he
believes critical to a case. Instead, identification of such documents under Rule 612 should result
only from opposing counsel ’s own selection of relevant areas of questioning, and from the
witness ’ subsequent admission that his answers to those specqic areas of questioning were
informed by documents he had reviewed." Id. Critically, Tatung’s counsel only asked, inthe
most general sense, whether Mr. Cho had reviewed documents for his deposition and had thus
refreshed his recollection. (See Cho Depo. at 5:8-8:9.) In response, Mr. Cho merely
acknowledged that he had reviewed some documents, selected by counsel, as part of his
preparation for the deposition. Reviewing documents necessarily helps any witness testify, but,
as Sporck holds, opposing counsel is not entitled to know what documents the attorney deemed
relevant. At no point did Mr. Cho indicate that his actual testimony had been influenced by any
653608-l
Case 1:04-cv-00343-JJF Document 556 Filed O3/08/2007 Page 3 of 4
The Honorable Vincent J. Poppiti
THE BAYARD FIRM March 8,2007
Page 3
_ documents that he had reviewed or that he relied on any documents to refresh any recollections
that became part of his testimony. Further, all of the documents that Mr. Cho reviewed have
been produced in this case. (See Ex. 1, Hr’ g Tr. at 24: 15-22 (Mar. 5, 2007).)
Your Honor properly determined that the facts in the instant case are distinguishable from
thecasesrthatjljatungrciteszjlfardeponent is inthe chair and if herhasrardocument that is placed 5 5 5 5
"_f tiiiiii ‘°_“““““â€1â€iâ€1“’i“1’fr6nt*trFliL——*iinmandtfrtlratrrlrrmrrrtocumen "*is, if1nerac1
15; see id. at 27:2-4 (denying motion).) Tatung never established that any foundation that would
allow it to use Rule 612 to override LPL’s privileged work product information. Just as Your
Honor denied Tatung’s motion on March 5, LPL respectfully requests that Your Honor deny
Tatung’s current motion.
Respectfully submitted,
*44;,4; [ ’
/ C »\,j, ’ f`
Richard D. Kirk (rk0922)
cc: Counsel as shown on the attached certificate
653608-1
Case 1:04-cv-00343-JJF Document 556 Filed O3/08/2007 Page 4 of 4
CERTIFICATE OF SERVICE
The undersigned counsel certifies that, on March 8, 2007, he electronically tiled
the foregoing document with the Clerk of the Court using CM/ECF, which will send
eeeeeee e¤¤¤>m¤ti¤1¤¤ti¤¤¤ti¤¤ Of tha .
J eftrey B Bove, Esq. Frederick L. Cottrell, III, Esq.
Jaclyn M. Mason, Esq. Anne Shea Gaza, Esq.
Connolly Bove Lodge & Hutz LLP Richards, Layton & Finger
1007 North Orange Street One Rodney Square
P.O. Box 2207 P.O. Box 551
. Wilmington, Delaware 19899-2207 Wilmington,DE. 19899
The undersigned counsel further certifies that copies of the foregoing document
were sent by email to the above counsel on March 8, 2007, and will be sent by hand on
March 8, 2007, and were sent by email on March 8, 2007, and will be sent by first class
mail on March 8, 2007, to tl1e following non—registered participants:
Scott R. Miller, Esq. Valerie Ho, Esq.
Connolly Bove Lodge & Hutz LLP Mark H. Krietzman, Esq.
355 South Grand Avenue Frank C. Merideth, Jr., Esq.
Suite 3150 Greenberg Trauri g LLP
Los Angeles, CA 90071 2450 Colorado Avenue, Suite 400E
Santa Monica, CA 90404
Tracy Roman, Esq.
Raskin Peter Rubin & Sirnon LLP
1801 Century Park East, Suite 2300
Los Angeles, CA 90067
/s/ Richard D. Kirk grk922)
Richard D. Kirk
571447-I
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