Free Memorandum in Opposition - District Court of Delaware - Delaware

Case 1 :04-cv-00343-JJF Document 434 Filed O2/O2/2007 Page 1 of 4 .
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Re: LG.Philips LCD C0., Ltd. v. ViewSonic et al., USDC, D. Del., No. 04-343-JJF
ViewSonic’s Opposition to LPL’s Motion to Compel ViewSonic to Categorize its
Products
Dear Special Master Poppiti:
ViewSonic opposes the January 26, 2007 motion submitted by LG.Philips LCD Co., Ltd.
("LPL") to compel ViewSonic to work promptly with LPL to categorize its products based on
the manner in which the LCD module is attached within its products into "mounting systems or
mounting categories, so that LPL may determine whether certain ViewSonic flat panel display
products infringe the Patents—in—Suit" (hereinafter "Motion"). LPL’s Motion has no support in
fact or law and, if granted, would require ViewSonic to specially prepare documents solely for
the benefit of LPL. The motion is fatally flawed and should be denied.
No Specific Discovery Reguest Seeks The Information Sought By LPL’s Motion
LPL has not pointed to any specific Request for Production ("RFP") or interrogatory that
seeks categorizations or classifications of "mounting systems" or "mounting categories," or
documents containing such categorizations or classifications. There is no such discovery
request. Although LPL argues that RFPs 2-5 supports its Motion, a proper reading of each of
these RFPs reveals that none seek categorization or classification of "mounting systems" or
"mounting categories."1 LPL’s motion seeks to raise a new discovery request long after the
period within which to serve discovery requests expired, i.e., June 30, 2006. See D.I. 198, Aug.
18, 2005 Sched. Order, ‘][ 4(a).
LPL Never Previously Indicated That ViewSonic’s Service Manuals Are
Insufficient To Allege Infringement
ViewSonic produced approximately 200 technical Service Manuals corresponding to
more than ninety percent of ViewSonic’s Visual Display Products imported, offered for sale or
sold in the U.S. since December 24, 2002, the earliest issue date of the patents in suit. The
Service Manuals contain what LPL refers to as "exploded view diagrams" of the ViewSonic
product. In its Motion, LPL suggests for the first time that ViewSonic’s Service Manuals are not
sufficient to determine whether a ViewSonic product infringes. This is directly contrary to
LPL’s position of more than four months ago.
1 A copy of LPL’s RFPs 2-5 is provided as Exhibit 3 hereto.

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Specifically, LPL’s motion relies on single pages extracted from several ViewSonic
Service Manuals, including the VG15l, VG700b, VG900, VG900b, and VP230mb. See Exs. A 2
& C of LPL’s Motion. These Service Manuals were among more than 60 Service Manuals
ViewSonic produced on September 14, 2006. See Ex. 1 [Decl. of M. Nelson], ‘[[‘[[ 6, 8. Notably,
on September 26, 2006, LPL’s counsel represented "We have completed our review of the
exploded view documents produced on September 1[4}, 2006. Based on that review, we have
determined that all of the monitors identwed in that September I [4] th production potentially
infringe the Patents-in—Suit. Also, please confirm that, as we have discussed multiple times,
you are producing the balance of the exploded view documents on a rolling basis." See Ex. 4
[2006-09-26 letter from R. Ambrozy to S. Miller (emphasis added)]. LPL did not suggest in
September 2006 that ViewSonic’s Service Manuals were not sufficient to determine
infringement. On the contrary, based on the exploded views provided in the Service Manuals,
LPL specifically represented that the ViewSonic Service Manuals were sufficient to determine
the products that potentially infringed the patents in suit, and LPL requested that any remaining
Service Manuals be produced on a rolling basis. LPL’s contradiction here of its own statements
regarding the sufficiency of the Service Manuals — not supported by any evidence such as a
declaration of an expert- should be rejected. As LPL stated in September, the Service Manuals
are more than sufficient for LPL to determine whether ViewSonic’s products potentially infringe
the patents—in—suit.
Regardless Of The Sufficiency Of The Service Manuals,
ViewSonic Cannot Be Forced To Create Documents That Do Not Exist
Without any legal authority, LPL asks the Court to compel ViewSonic to create
documents that categorize products and documents into LCD module "mounting systems" or
"mounting categories." LPL’s Motion, at 1, 2, 3. Rule 34 of the Federal Rules of Civil
Procedure is limited to documents and things which are in the "possession, custody or control" of
the party from whom documents are sought. "A defendant in a civil action cannot be compelled
to create, upon the request of the plaintiff, documentary evidence which is not already in
existence." Ingram v. Home Depot, U.S.A., Inc., No. Civ. A. 97-8060, 1999 WL 88939, ***3 (E.D.
Pa. Feb. 19, 1999) (citation omitted, emphasis added); see also Rockwell Int'! Corp. v. H. Wohfe
Iron and Metal Co., 576 F. Supp. 511, 513 (W.D. Pa. 1983) ("Rule 34 cannot be used to require
the adverse party to prepare, or cause to be prepared, a writing to be produced for inspection, but
can be used only to require the production of things in existence.") (quoting Soetaert v. Kansas
City Coca Cola Bottling Co., 16 F.R.D. 1, 2 (W.D. Mo. 1954)). See also Ex. 5 [Transcript of
December 28, 2006 Hearing ("Tr.")], p. 26, ll. 9-13 (acknowledging Court has no authority to
compel production of document not generated in ordinary course of business).
ViewSonic has already notified LPL that, in the ordinary course of its business,
ViewSonic does not categorize, classify, or concern itself with the type and/or classification of
module mounting technology or mounting systems employed or used in any of its Visual Display
Products. Ex. 6 [2007-01-29 letter from S. Miller to C. Christenson.] ViewSonic cannot be
compelled to prepare any categorization of "mounting systems" or list of "mounting categories."

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LPL’s Motion Contains Many Factual Errors And Lacks Proper Foundation
LPL’s Motion contains many factual errors. For example, the Motion erroneously
indicates that the VX900 "document" is included in Exhibit A. No portion of the VX900’s
Service Manual is provided in any LPL exhibit.2 LPL, for the first time, suggests that the
Service Manuals show poor detail. ViewSonic produced electronic copies and files of the
Service Manuals, which may be easily blown up by LPL to show close-ups of any portion of any
drawing.3 LPL’s assertion that some of the Service Manuals only show a front view erroneously
relies on a single page, ignoring color photographs that show a rear view. Finally, LPL’s motion
indicates that "there are many [ViewSonic] products with a mounting system similar to the
VS900.” This demonstrates that LPL has already categorized the mounting systems.
The multitude of factual errors is symptomatic of another problem. The sweeping factual
assertions in LPL’s Motion are not supported by a declaration from an appropriate witness
regarding the information that can (or cannot) be gleaned from the documents produced by
ViewSonic. This lack of proper evidentiary foundation alone is sufficient to deny the Motion.
Viewsonic Has Offered More Than 100 Viewsonic Products
For Purchase Or Inspection By LPL
ViewSonic has offered more than 100 Visual Display Products for inspection or purchase
by LPL. Ex. 7 [2007-01-30 letter from S. Miller to counsel]. This represents at least 50% of the
ViewSonic Visual Display Products imported, offered for sale or sold in the U.S. since
December 24, 2002, far greater than the 10% suggested by LPL. LPL made its allegation
regarding inspection of ViewSonic products prior to the date set by Your Honor for ViewSonic
to offer this inspection. Ex. 5 [Tr.], p. 79, l. 9 - p. 81, l. 3.
LPL’s Motion effectively seeks to avoid having to prepare its own case, and instead have
ViewSonic prepare LPL’s infringement case. The Motion is procedurally and legally defective.
lf granted, it would require ViewSonic to prepare documents that do not exist and information
that was not requested in discovery. Not only is it unsupported in law or fact, the motion to also
too late. LPL indicates it first made its request for categorization in September 2006. Yet,
without explanation, LPL failed to pursue the present motion until January 26, 2007, at the close
of the discovery period and on the eve of party depositions. Granting the Motion would
prejudice ViewSonic’s preparation for the upcoming depositions of the parties’ witnesses. Based
on the foregoing, ViewSonic respectfully requests that Your Honor deny LPL’s January 26, 2007
motion to Compel ViewSonic to categorize its products into "mounting systems" or "mounting
categories?
Respectfully submitted,
/9/ Jaclyn M. Mason
Jaclyn M. Mason (#4737)
2 The complete Service Manual for the VX900 is submitted herewith. See Ex. l, YH 3-4, 7-8; Ex.
2 (file "VSO1l434.PDF" on CD).
3 LPL’s Motion also refers to a non—existent Exhibit D.

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cc: Tracy R. Roman, Esq. (via email)
Scott R. Miller, Esq. (via email)
Jeffrey B. Bove, Esq. (via email)
James D. Heisman, Esq. (via email)
Frederick L. Cottrell, HI, Esq. (via email)
Anne Shea Gaza, Esq. (via email)
Frank Merideth, Jr., Esq. (via email)
Mark H. Krietzman, Esq. (via email)
Valerie W. Ho, Esq. (via email)
Steve Hassid, Esq. (via email)
Rel S. Ambrozy, Esq. (via email)
Cass W. Christeuson, Esq. (via email)
Lora A. Brzezynski, Esq. (via email)
Richard D. Kirk, Esq. (via email

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