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rkirk@,bayardtirnrcom
BY HAND AND BY EMAIL
January 26, 2007
The Honorable Vincent J. Poppiti
Blank Rome LLP
1201 Market Street, Suite 800
Wilmington, DE 19801
Re: LG.Philips LCD C0., Ltd. v. ViewSonic, C.A. N0. 04-343 JJF
Dear Special Master Poppiti:
Plaintiff LG.Philips LCD Co., Ltd.’s ("LPL") respectfully requests clarification
concerning three deposition timing issues arising out of the Court’s August 18, 2005 Scheduling
Order (D.I. 198) (the "Scheduling Order").
General Time Limits. LPL requests guidance and clarification concerning the amount of
time for which each fact witness may be deposed in this case. Section 4(d) of the Scheduling
Order provides that depositions for English—speaking witnesses are limited to 10.5 hours.
However, the Scheduling Order appears to mistakenly set a 10.5 hour limit for English-speaking
witnesses, when the Court intended to adopt D€f€1"1Cl311lS’ proposal limiting non-English
depositions to 10.5 hours, and limiting English depositions to 7 hours.
On June 17, 2005, the parties jointly submitted a proposed scheduling order (D.1. 192),
attached hereto as Ex. A (the "Proposed Scheduling Order"). As indicated in the Proposed
Scheduling Order, the parties were not able to reach agreement on the limits to place on
depositions for this case. (See Ex. A at § 3(d).) Accordingly, each side submitted proposed
language for the Couit’s consideration. (See id.) LPL proposed that each side be permitted to
take 12 depositions. (See id. at § 3(d)(i).) In pertinent part, Defendants proposed the following:
No fact witness or designee under Rule 30(b)(6) for whom English is their
first language shall be deposed for more than seven hours. No fact witness
or designee under Rule 30(b)g 6) for whom English is not their first
language shall be deposed for more than 10.5 hours.
(Irl. at § 3(d)(ii) (emphasis added).)
ln pertinent part, the Court appears to have intended to adopt Defendants’ proposed
language with respect to deposition time limitations:
6502l2—l
Case 1:04-cv—OO343-JJF Document 418 Filed O1/26/2007 Page 2 of 4
The Honorable Vincent J. Poppiti
THE BAYARD FIRM January 26, 2007
Page 2
No fact witness or designee under Rule 30(b)(6) for whom English is their
first language shall be deposed for more than 10.5 hours.
(Sched. Order at § 4(d).) Upon comparison of these provisions, however, it appears that the
Court made a scrivener’s or transcription error. Specifically, the Scheduling Order adopts the
beginning and ending portions of Defendants’ proposal, but omits the intervening language
underlined above. (Compare id. with Ex. A at § 3(d)(ii) (underlined portions above show
language not included in Court’s Scheduling Order).) As a result, the Scheduling Order fails to
address the time permitted for non—English-speaking witnesses. Presumably, consistent with the
Defendants’ proposed language, the Court intended to provide that Englislrspeaking witnesses
may be deposed for up to seven hours (which is also consistent with Fed. R. Civ. P. 30(d)(2)),
and that non—English—speaking witnesses may be deposed for 3~5 additional hours, which is
customary given the need for translationl
Inventors. LPL also seeks clarification that the Scheduling Order nreans what it says
concerning the limit for inventor depositions. Section 4(d) expressly and clearly provides that:
"No fact witness or designee under Rule 30(b)(6) for wlrorn English is their first language shall
be deposed for more than 10.5 hours. Notwithstanding the foregoing limitations, the inventors
ofthe patents-in~suit may be deposed for up to 21 hours total, which shall be consecutive?
(Sched. Order (emphasis added).) As discussed above, Defendants proposed this exact language
to the Court. (See Ex. A.) Both of the inventors in this case, Jong Hwarr Kim and Young Woo
Cho, speak Korean as their first language, LPL maintains that § 4(d) permits the Defendants to
depose the two inventors for a combined total of up to 21 hours on consecutive dates.
Despite the clear language of § 4(d), Defendants seek to take a 21—hour deposition of
each Inventor. (See Ex. 10 to LPL’s Jan. 26, 2007 Local Rule 7.1.1 Certification [hereinafter
"Cert."] at 3.) Defendants tlnrs seek six days of depositions of the inventors, in addition to
substantial hours of deposition time when the inventors testify as Rule 30(b)(6) designees. The
Court presumably did not intend such a burdensome and extraordinary result, which is
inconsistent with a plain reading of the limit that the inventors "may be deposed for up to 21
hours total," regardless of whether the inventors speak English or Korean. Three deposition days
is more than sufficient and LPL respectfully requests confirmation that § 4(d) of the Scheduling
Order limits Defendants to 21 hours of deposition for both inventors combined.
Third Parties. The Scheduling Order, as amended, is silent as to the amount of time that the
parties have been allotted for third party depositions.2 Further, the Scheduling Order limits LPL
I Defendants appear to believe that by arbitrarily dividing their Rule 30(b)( 6) deposition topics into four notices,
they can require LPL’s to provide more hours of deposition testimony than if one notice was served. Apparently,
Defendants contend that LPL must produce one or more witnesses per deposition notice, to be deposed for at least
10.5 hours per witness, even for English—speaking witnesses. Defendants’ position is not consistent with the Federal
Rules or the Scheduling Order, and would allow a party to serve a separate notice for each deposition topic as a
tactical weapon. LPL maintains that the time limits in § 4(d) apply per witness, not per notice. Notably, during the
parties’ January 8, 2007 teleconference, Tatung proposed that the parties further discuss the amounts of time needed
for each Rule 30(b)(6) deposition witness and ViewSonic said that it "makes a lot of sense." LPL agrees and
continues to hope that these issues can be discussed and resolved by counsel before the February 9 hearing.
2 LPL has attempted to discuss this issue with the Defendants. However, Defendants canceled the parties’ recent
attempts to hold meet-and—confer sessions and then insisted that any future negotiations be conducted with a court
Case 1:04-cv—OO343-JJF Document 418 Filed O1/26/2007 Page 3 of 4
The Honorable Vincent J. Poppiti
THE BAYARD FIRM January 26, 2007
Page 3
to only 84 hours of deposition time, which is the equivalent of l2 days of deposition testimony.
Within this time, LPL intends to depose at least a dozen employees of Defendants, including
many witnesses who will testify using an interpreter. Under these circumstances, it would be
unfair to include third party deposition time within LPL’s 84—hour deposition cap. Because the
Scheduling Order is silent, LPL requests that the Special Master confirm that time spent on third
party depositions falls outside of the Scheduling Order’s time allotment.
In the event that the Special Master determines that third party depositions are covered by
§ 4(d), LPL respectfully requests additional time to complete third party depositions. As stated
above, while LPL intends to complete all of its deposition discovery within the 84—hour
allotment, LPL must use this time on the depositions of the Defendants’ many witnesses.}
Consequently, forcing LPL to compress its already strained deposition schedule by including any
third party depositions in the total time allotment would place undue pressure on LPL and would
likely require LPL to abandon valuable deposition discovery that would provide evidence to
support LPL’s claims. The same pressures do not apply equally to the Defendants for several
reasons. Among them, Defendants have been obtaining third party documents without the need
for depositions. Defendants also only need to depose a few LPL witnesses, but they have been
allotted l40 total hours of deposition time. Finally, Defendants are already resisting LPL’s
efforts to obtain third party discovery, as demonstrated by their efforts to prevent LPL from
obtaining relevant discovery from third party Hewlett·Packard.4 (See Exs. l6—l 7 to Cert.)
For these reasons, LPL respectfully requests that the Special Master clarify that the
Scheduling Order does not include third party deposition discovery within the deposition time
limits set forth in § 4(d) of the Scheduling Order. Alternatively, LPL requests that the Special
Master grant LPL at least an additional 28 hours of time for third party depositions. If further
time is needed, LPL will promptly address this issue at the appropriate time.
Respectfully submitted,
Richard D. Kirk (rk0922)
cc: Counsel as shown on the attached certificate
reporter present — a proposal that LPL finds to be unnecessary and one that would require the parties to bear
unnecessary and exorbitant costs that would delay the resolution of every dispute in this case. (See generally Cert.
(detailing LPL’s efforts to negotiate with Defendants on these issues).)
3 LPL has tiled a motion to compel depositions of the Defendants contemporaneously with this Motion. In that
Motion, LPL identities witnesses that LPL currently intends to depose, subject to possible additional depositions.
4 Notably, LPI/s subpoena on Hewlett-Packard was served only after ViewSonic served its own subpoena on
Hewlett—Pacl
Case 1:04-cv—OO343-JJF Document 418 Filed O1/26/2007 Page 4 of 4
CERTIFICATE OF SERVICE
The undersigned counsel certifies that, on January 26, 2007, he electronically
filed the foregoing document with the Clerk of the Court using CM/ECF, which will send
automatic notification of the filing 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 of the foregoing document
were sent by hand to the above counsel and by email and will be sent by first class mail
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 Traurig 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
57l447·l
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