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Case 1 :04-cv-00343-JJF Document 441 Filed O2/07/2007 Page 1 of 4
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eounssrores AT rxw
Phone: (302) 425-6410
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February 7, 2007
Richard D. Kirk, Esquire Jeffrey B. Bove, Esquire
The Bayard Finn Connolly Bove Lodge & Hutz LLP
222 Delaware Avenue 1007 North Orange Street
Suite 900 Wilmington, DE 19801
Wilmington, DE 19801
Re: LG. Philqas LCD C0., Ltd v. ViewSonic Corporation, etal.; C.A. No. 04-343 (JJF)
Mutual Requests By The Parties To Clarify Deposition Time Limits And
Scheduling Order
Dear Counsel:
Plaintiff LG. Philips LCD Co., Ltd. ("LPL") and ViewSonic Corporation ("ViewSonic"), by
their respective correspondence dated January 26, 2007, mutually request clarification of the Court’s
August 18, 2005 Scheduling Order (D.I. 198) (the "Scheduling Order").
The clarification sought relates to paragraph 4(d) ofthe Scheduling Order which reads as
follows:
Maximum of 84 hours of examination by plaintiff of fact witnesses,
excluding expert depositions, unless other wise agreed in writing by the
parties ordered the Court. Defendants combined shall by limited to 140
hours of examination of fact witnesses, excluding expert depositions. No
fact witnesses or designee under Rule 30(b)(6) for whom English is their
first language shall be deposed for more than 10.5 hours.
Notwithstanding the foregoing limitations, the inventors of the patents-
in-suit may be deposed for up to 2l hours total, which shall be
consecutive.
Chase Manhattan Centre 1201 Market Street Suite 800 Wilmington, DE 19801
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General Time Limits
The first question becomes what is the amount of` time f`or which each f`act witness may be
deposed? While the phrasing of` paragraph 4(d) currently provides that "no f`act witness or designee
under Rule 30(b)(6) f`or whom English is their first language shall be deposed f`or more than 10.5
hours," it appears the Court in considering the parties’ respective positions inadvertently omitted
essential language.
On June 17, 2005, the parties by joint submission proposed a scheduling order (D.I. 192) (the
"Proposed Scheduling Order”). The parties were not in agreement on the limits to be placed on
depositions in this case. LPL proposed that each side be permitted to take twelve depositions. See
Proposed Scheduling Order at paragraph 3(d)(i). ViewSonic proposed in pertinent part as f`ollows:
No fact witness or designee under Rule 30(b)(6) for whom English is
their first language shall be deposed for more than 7 hours. No fact
witness or designee under Rule 30(b)(6) for whom English is not their
first language shall be deposed for more than 10.5 hours.
The Court adopted the beginning and ending portions of ViewSonic’s proposal, omitting the
language relative to time permitted for English speaking witnesses. The Special Master is satisfied
that, in adopting ViewSonic’s proposed language, the Court intended to provide that English speaking
witnesses may be deposed for up to 7 hours, consistent with Fed. R. Civ. P. 30(d)(2), and that non-
English speaking witnesses maybe deposed for 3.5 additional hours.
The Special Master therefore recommends that the Scheduling Order be amended at paragraph
4(d) consistent with the language in Attachment 1 hereto.
Inventors
The second question becomes what is the time limit for inventor depositions. There are two
inventors in this case, Jong Hwan Kim and Young Woo Cho, both of whom speak Korean as their first
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language and each of whom will require an interpreter for his deposition. Paragraph 4(d) of the
Scheduling Order reads in pertinent part, "Notwithstanding the foregoing limitations, the inventors of
the patents-in-suit maybe deposed for up to 21 hours total which shall be consecutive."
LPL argues that the Scheduling Order provides that both inventors may be deposed for a
combined total of no more than 21 hours, all and each of which must occur on consecutive days.
ViewSonic argues that the Scheduling Order, which adopts their proposed language, was intended to
and permits each inventor to be deposed for up to 21 hours and that each inventor’s set of 21 hours
must be on consecutive days.
The Special Master is satisfied that a fair and reasonable reading of the disputed language
supports ViewSonic’s position. Having already determined that the Court intended that the Scheduling
Order provide that no witness "for whom English is not their first language shall be deposed for more
than 10.5 hours," the Special Master concludes that the sentence "Notwithstanding the foregoing
language. . ." would otherwise be surplusage and make no sense, unless the time limit itself was being
modified. Indeed, notwithstanding the fact that inventors may also be deposed as 30(b)(6) witnesses, it
is certainly a practical reality of patent litigation that inventors maybe expected to spend more time in
the chair than other fact witnesses.
Having stated the above, the Special Master concludes that the inventors in this case may each
be deposed for up to 21 hours and that each inventor’s set of 21 hours must occur on consecutive days,
as reflected in the recommended amendment to the Scheduling Order in Attachment 1.
30gb[(6) Depositions
The next question becomes, how should 30(b)(6) depositions be treated with respect to the time
limits established by the Scheduling Order as amended? The Special Master understands from the
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parties’ respective submittals that the meet and confer process is still taking place on this topic and,
therefore, that this issue is not yet ripe for consideration by the Special Master.
Conclusion
In sum, the Special Master concludes that until all proposed amendments to the Scheduling
Order can be recommended to and approved by the Court, the parties should conduct their discovery in
accordance with the language of Attachment 1.
Yours respectfully,
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Vincent J. Poppiti
Special Master
(DSBA 100614)
VJP:mcl
cc: Fredrick L. Cottrell, III Esquire
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