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BY HAND AND BY EMAIL
March 6, 2007
The Honorable Vincent J. Poppiti
Blank Rome LLP
1201 Market Street, Suite 800
Wilmington, DE 19801
Re: LG.Philq1s LCD C0., Ltd. v. ViewSonic, C.A. N0. 04-343 JJF
Dear Special Master Poppiti:
McKenna Long & Aldridge LLP ("MLA") has not violated the Protective Order in this
case or the Protective Order entered in LG.Philzps LCD Company, Ltd. v. T atung Company,
T atung Company of America, Inc., Chunghwa Pictures Tubes, Ltd., and ViewSonic Corporation,
C.A. No. 05-292-JJF (the "05-292 caseâ€). MLA takes its obligations under this Court’s orders
very seriously and has fully complied with the Protective Orders in these actions at all times.
The Tatung Defendants’ motion to stay any further production of its confidential documents
regarding unaccused products is unfounded and is designed to harass the MLA attorneys and
divert their attention from both defending the ongoing depositions of LPL employees and
preparing for the depositions of Defendants’ witnesses next week.
In response to the Tatung Defendants’ concern that MLA attorneys assigned to this case
also were prosecuting patents involving flat panel display technology, MLA immediately
confirmed compliance and promptly provided Declarations from the three attorneys about which
the Tatung Defendants raised concerns. (Ex. 1.) That should have been the end of this
discussion. Instead, counsel for the Tatung Defendants continue to make false accusations of
improper conduct for strategic purposes.
The contemporaneously filed declarations of two MLA Intellectual Property Partners
conclusively establish that no prosecuting attorney involved in prosecuting flat panel display
technology has had access to Defendants’ Highly Sensitive Confidential ("HSC") documents.
The Tatung Defendants specifically reference Messrs. Bailey, Auito, and Angert and Ms. Davis,
who have been involved in this litigation, and suggest that because they are identified in a list of
attorneys associated with MLA’s customer number at the PTO, they must be violating the
Protective Order. As explained in the attached declarations, that is absolutely not the case. (See
Declaration of Rebecca G. Rudich ("Rudich Dec.") 1111 2-7 and Declaration of Matthew T. Bailey
("Bailey Dec.") 111] 3-5.)
653608-I
Case 1 :04-cv—OO343-JJF Document 539 Filed O3/06/2007 Page 2 of 4
The Honorable Vincent J. Poppiti
Tr-rrr BAYARD Frarvr March 6, 2007
Page 2
Second, the Tatung Defendants misconstrtre the import of documents obtained from the
Patent and Trademark Office ("PTO") website. Every law firm that prosecutes patents has a
customer number issued by the PTO. As is standard practice among law firms that prosecute
patents, MLA provides to the PTO a list of its registered patent attorneys, and the PTO associates
this list with MLA’s customer number for all pending applications involving that customer
number. This list is periodically updated when attorneys leave or join MLA, but this list does
not identify those attorneys as necessarily prosecuting each patent application pending before the
PTO. Indeed, MLA has set procedures on who prosecutes patents in the area of flat panel
display technology, especially to ensure compliance with the Protective Order in this case and in
other cases.1 (Rudich Dec. {lil 4-15.)
Any concern by the Tatung Defendants as to an ineffective "ethical wall†between Mr.
Bailey, an IP Partner at MLA, and Jennifer Davis, an MLA associate that Mr. Bailey supervises,
is unfounded. Neither Mr. Bailey or Ms. Davis engages in any patent prosecution activity related
to the patents-in—suit or any patent prosecution activity involving flat panel display technology.
Nevertheless, MLA has set procedures for handling HSC litigation materials. First, all MLA
attorneys working on this case are instructed to read, understand, and abide by the Protective
Order and are specifically told that only attomeys working on the case and who do not prosecute
patents in the area of flat panel technology are permitted access to HSC documents. Second, all
documents produced by the Defendants are loaded onto our Sumrnation database. That database
is password protected, and passwords are only given to litigators working on this case and not to
any patent prosecutors in the area of flat panel technology. The Defendants have primarily
produced documents in this case on a cd, and those cds are maintained in a locked file cabinet.
Third, litigation files are kept in litigation workrooms that are separate from the prosecution files.
All boxes and file cabinets containing HSC documents have been labeled as containing such
documents. Fourth, emails containing HSC documents or information are only circulated to
personnel authorized to review that information. (Bailey Dec. {lil 3-7.)
The Tatung Defendants’ insistence on further corroboration should be summarily
rejected. It would be burdensome and unnecessary for MLA to produce its confidential billing
records relating to all of the patents it prosecutes in the area of flat panel display technology.
This also would invade privilege and interfere with the attorney-client relationship, solely
because Tatung disregards sworn declarations. Moreover, the suggestion by the Tatung
Defendants that MLA has rogue patent prosecutors who violate the Protective Order in this case
and seek out HSC documents is meritless. The Tatung Defendants have even gone so far as to
subpoena for a deposition MLA Partner Rebecca Rudich. The Tatung Defendants should not be
permitted to continue this farce by deposing Ms. Rudich. MLA asks that as part of denying the
Tatung Defendants’ motion, the Special Master also quash the Rudich subpoena.2 Otherwise,
MLA will file a separate motion to quash the Rudich subpoena.
I Tatung’s counsel, Greenberg Traurig, itself prosecutes patents inthe area of LCD technology according to the PTO
website, but it offers no assurances as to its own compliance with the Protective Order.
2 Ms. Rudich also will be out of town on the noticed deposition date of March 21, 2007. (Rudich Dec. 1[ 16.)
6536084
Case 1 :04-cv—OO343-JJF Document 539 Filed O3/06/2007 Page 3 of 4
The Honorable Vincent J. Poppiti
THE BAYARD Prruvr March 6, 2007
Page 3
LPL also has not violated the Protective Order in the "05—292 case." MLA has simply
and appropriately requested that the Tatung Defendants produce in this case those Tatung
documents that MLA knows have been produced in other cases but were not produced in this
case, even though such documents are clearly responsive to pending discovery requests. Despite
Defendants’ sudden memory loss, Mr. Christensen distinctly recalls a cordial conversation in
September 2006 wherein counsel discussed that because of the large volume of documents
produced in all of the cases, if any party discovers documents produced by a party in another
case but not in this case, the party should first bring such documents to the attention of counsel
for that party in this case before filing a motion to compel. No party would be using the
documents in the other cases in this case because the parties would ask that such documents be
produced in this case. Here, the issue concerns Tatung’s own documents and own witness
testimony, which the Tatung Defendants obviously have but which the Tatung Defendants have
not provided to their counsel for production or which have been purposely withheld. It is
nonsensical to suggest that MLA attorneys, aware of certain Tatung documents and Tatung
testimony from another case, cannot even bring such documents and information to the attention
of Tatung’s counsel so that those documents can be produced and used in this case. To suggest
otherwise would permit the Tatung Defendants to commit a fraud on this Court and purposely
withhold documents from production. Indeed, Tatung counsel itself argued last week to the
Court that LPL has not produced a certain document in this case. When Tatung finally sent the
document to MLA, the document had LPL bate—stamp numbers, and MLA has confirmed that
this document was produced by LPL in two other cases. (See Ex. 2.)
The Tatung Defendants have tried to make much of the fact that MLA rightfully brought
to the Special Master’s attention in a confidential filing under seal (not in the public record) a
portion of Tatung deposition testimony marked as Exhibit E to the filing. The purpose of the
exhibit was to inform the Court that Tatung previously admitted to having the very assembly
documents that it now states are not available or non-responsive. MLA withdrew this exhibit,
not because of any Protective Order violation, but because Tatung has now admitted it has such
documents referenced in Exhibit E and has offered to show these files to the Special Master.3
The Tatung Defendants also have mischaracterized the California proceeding relating to
the DEC agreement and side-mount patents. Significantly, Tatung fails to mention that it was
found to willfully infringe LPL’s patents by juries in both Delaware and California last year.
Tatung’s motion should be denied, and it should be ordered to produce its documents without
further delay.
Res ctfully subm`
cc: Counsel as shown on the attached certificate
3 MLA also withdrew Exhibit E in an effort to resolve this issue without further motions, but Tattuig has since gone
so far as to move to strike MLA’s entire filing that referenced Exhibit E. MLA will respond separately to Tatung’s
baseless motion.
6536084
Case 1 :04-cv—OO343-JJF Document 539 Filed O3/06/2007 Page 4 of 4
CERTIFICATE OF SERVICE
The undersigned counsel certifies that, on March 6, 2007, he electronically tiled
the foregoing document with the Clerk of the Court using CM/ECP, which will send
automatic notification of the tiling to the following:
Jeffrey 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 ofthe foregoing document
were sent by email to the above counsel on March 6, 2007, and will be sent by hand on
March 6, 2007, and were sent by email on March 6, 2007, and will be sent by first class
mail on March 6, 2007, to the 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 & Simon LLP
1801 Century Park East, Suite 2300
Los Angeles, CA 90067
/s/ Richard D. Kirk grk922)
Richard D. Kirk
571447~l
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