Case 1:14-cv-01432-LPS Document 275 Filed 05/27/20 Page 1 of 19 PageID #: 16961
`
`
`Frederick L. Cottrell, III
`302--651-7509
`Cottrell@rlf.com
`
`May 20, 2020
`
`
`
`VIA CM/ECF & HAND DELIVERY
`The Honorable Leonard P. Stark
`United States District Court
`District of Delaware
`844 King Street
`Wilmington, DE 19801
`
`Re: Elm 3DS Innovations v. Micron Tech. Inc. et al, C.A. No. 1:14-1431-LPS-CJB
`
`Dear Chief Judge Stark:
`
`Five and a half years after filing this lawsuit, Elm now seeks to amend its Complaint to add
`conclusory willful infringement allegations. The Court should deny Elm’s Motion.1
`
`First, Elm provides no good cause, let alone diligence, for its five-plus year delay. During its
`delay, all twelve asserted patents expired. Elm’s founder, the sole alleged inventor of all asserted
`patents, died. Elm’s delay is particularly unwarranted given Elm’s own admission that its
`willfulness claim is not based on any new facts learned in discovery. Rather, Elm bases its claim
`on the same information already in Elm’s possession when it first filed this litigation.
`
`Elm’s unjustified delay prejudices Defendants in at least three ways. First, Defendants are
`unable to depose Mr. Leedy about his alleged disclosure to Defendants because he died during
`Elm’s delay. Second, because the RFP deadline has passed, Defendants are unable to seek
`documents allegedly supporting Elm’s proposed willful infringement claim. Third, Elm’s delay
`limits Defendants’ ability to obtain opinions of counsel.
`
`Finally, the amendment is futile because Elm’s willfulness claim is based on Elm’s unsupported
`assertion of a meeting between Leedy and Micron.2 Elm had nothing to support this allegation
`before bringing suit. Now, over five years later, and despite numerous requests from Micron,
`Elm still lacks any evidence showing this meeting occurred. The only other alleged basis for
`pre-filing knowledge is Micron’s citations to Elm’s patents in its Information Disclosure
`Statements during patent prosecution. This, too, fails to show Micron’s knowledge.
`
`I.
`
`Elm Has No Good Cause For Its 5-Plus Years Delay, Which Prejudices Defendants
`A.
`Elm’s Undue Delay
`Amendments should be denied where “denial [can] be grounded in bad faith or dilatory motive,
`truly undue or unexpected delay, [or] repeated failure to cure deficiency by amendments
`previously allowed. . . .” Lundy v. Adamar of N.J., Inc., 34 F.3d 1173, 1196 (3d Cir. 1994).
`
`
`
`1 Elm’s May 13, 2020 letter (DI 252) also sought “two other substantive changes:” (1) removing U.S. Patent No.
`8,035,233, based on a PTAB decision that the asserted ‘233 Patent claims are invalid; and (2) revisions “to reflect
`the fact that [Mr. Leedy] passed away in 2017.” Mot. at 2. Defendants do not object to these two amendments.
`2 Each Defendant will write separately as to its specific facts regarding futility.
`
`
`
`
`
`

`

`Case 1:14-cv-01432-LPS Document 275 Filed 05/27/20 Page 2 of 19 PageID #: 16962
`The Honorable Leonard P. Stark
`May 20, 2020
`
`Elm’s motion should be denied because it has failed to provide any explanation for its over five
`year delay. See Del. Display Grp. LLC v. Lenovo Grp. Ltd., Civil Action No. 13-2108-RGA,
`2016 WL 720977 (D. Del. Feb. 23, 2016). In Lenovo, the court denied the plaintiff’s motion to
`add willfulness claims due to its “nearly two years” of delay despite having possession of the
`relevant information. The court reasoned: “Plaintiffs…offer nothing as to why they waited until
`nearly two years after filing the complaint to assert willfulness. This is particularly hard to
`understand, since it seems that the only legitimate basis for the willfulness assertion was
`something that Plaintiffs undoubtedly knew before ever filing the original complaint.” Id. at *8.
`
`Elm argues that its amendment is timely because it is within the Court’s schedule to file amended
`pleadings. The Lenovo court, however, rejected an identical argument: “The question of whether
`a motion for leave to amend is timely under the scheduling order is certainly relevant to the
`question of whether there has been undue delay. They are not, however, the same question. Just
`as a motion filed after the deadline could be filed without undue delay, so too could undue
`delay exist when a motion is filed before the deadline.” Id. (emphasis added).
`
`The Lenovo court also reasoned that plaintiff’s amendment should be denied because plaintiff
`previously amended the complaint:
`
`When ‘a party fails to take advantage of previous opportunities to amend, without
`adequate explanation, leave to amend is properly denied.’ … Plaintiffs provide no
`explanation for why they did not seek leave earlier or why the allegations of willfulness
`were not included in earlier amendments. Plaintiffs’ only ‘reason[] for not amending
`sooner’ appears to be that the scheduling order's deadline had not yet elapsed. Given that
`this motion was filed on the last possible day, which was also the date that fact discovery
`was scheduled to close, and the delay in filing appears to have been an intentional effort
`to wait until the last moment, that does not suffice. I find that there was undue delay….
`
`Id. at *9 (emphasis added; citations omitted).
`
`Like Lenovo, Elm’s proposed amendment does not add a single new factual allegation, and is
`based on facts Elm knew since 2014. See Mot. at 2 (“Elm 3DS is not adding any factual
`allegations to the complaints.”). It is not based on any new document, new testimony, or new
`discovery responses. This demonstrates that Elm could have alleged willfulness when it filed its
`original complaint or its FAC. Where the Lenovo court found a “nearly two years” delay “hard
`to understand,” that delay pales in comparison to Elm’s five-plus years delay.
`
`Also like Lenovo, Elm fails to explain why it did not or could not assert willfulness in 2014. Elm
`also fails to explain why it did not amend the Complaint to allege willfulness in the five-plus
`year course of the lawsuit, despite opportunities to do so. Elm filed an amended Complaint on
`March 27, 2015, but did not allege willful infringement.3
`
`
`3 This is not the first case in which Elm’s counsel has failed to act diligently in seeking leave to amend to assert
`willful infringement. See E.I. DuPont De Nemours & Co. v. Unifrax I LLC, No. 14-1250-RGA, 2017 U.S. Dist.
`LEXIS 68842, at *5 (D. Del. May 5, 2017) (denying motion, filed by Elm’s counsel more than a year after the
`deadline to amend pleadings, for leave to amend to plead willfulness, noting that plaintiff “seems to have been in
`possession of the facts essential to bring a willfulness claim well prior to the amendment deadline established by the
`scheduling order”).
`
`2
`
`

`

`Case 1:14-cv-01432-LPS Document 275 Filed 05/27/20 Page 3 of 19 PageID #: 16963
`The Honorable Leonard P. Stark
`May 20, 2020
`
`Elm’s argument that its motion to amend is “timely under the Court’s Scheduling Order” does
`not justify its five-plus year delay. “[U[ndue delay [can] exist when a motion is filed before the
`deadline.” 2016 WL 720977 at *8. And, like in Lenovo, Elm sought amendment “on the last
`possible day.” Id. Moreover, the scheduling order contemplated that the claim construction
`order may change the scope of the claims asserted, which might warrant amendment. It did not
`contemplate giving the parties an expansive amount of time to assert claims which it had all facts
`about years ago.
`B.
`Elm’s Delay Prejudices Micron By Preventing Discovery On Willfulness
`Elm’s undue delay is highly prejudicial which is a basis to deny the amendment. Cureton v.
`Nat'l Collegiate Athletic Ass'n, 252 F.3d 267, 273 (3d Cir. 2001). During Elm’s delay, Mr.
`Leedy died. Mr. Leedy is central to Elm’s willfulness allegations—not only was he the founder
`of Elm and sole alleged inventor of the asserted patents, he is the only Elm individual with direct
`knowledge of alleged meetings with Defendants. No one from Micron recalls the alleged
`meeting. No document (Micron’s or Elm’s) supports the contention that the meeting ever took
`place. But due to Elm’s undue delay, Defendants cannot depose Mr. Leedy.
`
`The absence of a willfulness allegation affected Defendants’ litigation strategy. For example,
`had Elm asserted willfulness in its initial 2014 Complaint, Defendants would have conducted
`discovery on Elm’s alleged evidence of pre-filing notice of the asserted patents. But the deadline
`for service of document requests (“RFPs”) has now passed (February 9, 2020). DI 214.
`Defendants would also have sought opinions of counsel, but the delay and inability to obtain
`discovery on this issue limits that option.
`II.
`Elm’s Amendment Is Futile Because It Fails To State A Claim For Willfulness
`Amendment is futile “when the complaint, as amended, does not state a claim upon which relief
`can be granted. If the proposed amendment ‘is frivolous or advances a claim or defense that is
`legally insufficient on its face, the court may deny leave to amend.’” Koken v. GPC Int'l, Inc.,
`443 F. Supp. 2d 631, 634 (D. Del. 2006) (internal citations omitted).
`
`Elm must allege facts that “are sufficient to show that the plaintiff has a ‘plausible claim for
`relief.’” Chalumeau Power Sys. LLC v. Alcatel-Lucent, 2012 WL 6968938 (D. Del. Jul. 18,
`2012) (dismissing willful infringement). Amendments should be denied when the “factual
`allegations do not plausibly support the conclusion that each defendant ‘acted despite an
`objectively high likelihood that its actions constituted infringement…,’ and that defendants knew
`or should have known that their actions constituted infringement of a valid patent.” Id. at *2.
`
`Elm’s amendment to add willfulness claims is futile. Elm’s Motion indicates that its willful
`infringement claims are based on Micron’s conduct before Elm filed its Complaint.4 In order to
`plead willfulness, Elm makes two allegations: (1) that a purported meeting between Mr. Leedy
`and Micron occurred “[i]n 2000 or 2001,” in which Mr. Leedy allegedly provided a presentation
`and a copy of the ’167 Patent (which is not asserted in this case), as alleged in ¶ 31 of the
`Amended Complaint; and (2) that Micron cited Elm’s patents during prosecution of Micron’s
`
`
`
`4 To the extent Elm alleges that Micron willfully infringed Elm’s patents post-filing, each of Elm’s asserted patents
`have expired in the 5-year period of Elm’s delay. Elm cannot accuse Micron of infringing—willfully or
`otherwise— patents after they have expired.
`
`3
`
`

`

`Case 1:14-cv-01432-LPS Document 275 Filed 05/27/20 Page 4 of 19 PageID #: 16964
`The Honorable Leonard P. Stark
`May 20, 2020
`
`patent applications, as alleged in ¶¶ 51-60. Each of these allegations is insufficient on its face.
`A.
`Elm Fails To Identify Facts That Show Micron Ever Met With Mr. Leedy
`Despite multiple requests from Micron, Elm never produced any documentary evidence that a
`meeting between Micron and Leedy actually took place. Five and a half years into the
`litigation—during which the parties produced 7,500 documents totaling over 138,000 pages—
`Elm has yet to provide a shred of evidence that the alleged meeting occurred.
`
`In Micron’s Interrogatory No. 1, Micron asked Elm to “[i]dentify and describe all evidence—
`including but not limited to documents, communications, and expected witness testimony—of a
`meeting between Glenn Leedy and Micron as alleged in paragraph 50 of the First Amended
`Complaint.” In its April 24, 2020 response (Ex. A), Elm identified only two documents,
`ELM3DS00041228 (Ex. B) and ELM3DS00041225 (Ex. C). Neither document, however,
`supports Elm’s contention, and both are inadmissible hearsay because the author is now dead.
`The documents fail to show any meeting, or even any reference to a meeting. They are not even
`communications with Micron, but emails from Leedy to third parties.
`
`The first document is Glenn Leedy’s funding solicitation email to a contact at Hyundai, in which
`Mr. Leedy encourages him to invest in “Elm’s licensee Tachyon Semiconductor,” and tells him
`that “Micron and Infineon have pledged investment,” suggesting that he “take a good look at
`Tachyon as soon as possible.” The email has nothing to do with Elm’s allegation of a meeting
`between Micron and Leedy. To date, none of the documents produced by either party evidence
`that Micron ever “pledged investment” in any of Leedy’s technology. Leedy’s statement appears
`to be unsubstantiated puffery hoping to entice a potential investor.
`
`The second email is also not relevant. In an message to Bob Patti of Tezzaron, Leedy states: “I
`told him you expected to have a demonstration circuit by December with Micron and Infineon on
`record to work with you once they receive the demo circuit, and that Tachyon was currently
`trying to close [sic] a second round of financing.” This email likewise fails to demonstrate a
`Micron-Leedy meeting. Moreover, to the extent “you” refers to Mr. Patti and Tezzaron, Mr.
`Leedy’s statement does not refer to his own alleged dealings with Micron, but dealings between
`Micron and third party Tezzaron.
`
`After thorough investigation, Micron has not located any document that shows a meeting
`between Mr. Leedy and Micron ever took place. The only document in Micron’s possession that
`even mentions Mr. Leedy is a single file folder labeled “Glenn Leedy,” which had no contents,
`and no reference to any meeting or discussion (MICRON-ELM-00011208, Ex. D).
`
`Even if Elm could substantiate that a meeting took place in 2000 or 2001 (which Elm cannot),
`that would not suffice to show Micron’s knowledge of the asserted patents, because Mr. Leedy
`allegedly presented the ’167 Patent during that meeting—which is not asserted in this case. A
`conclusion that Micron had knowledge would be based on an absurd premise that a company that
`had one meeting regarding one patent is presumed to have knowledge of all the other patents in
`the same family, no matter how large the patent family or the span of filing dates.
`B.
`Citations To Elm’s Patents Is Insufficient To Show Pre-Suit Knowledge
`Elm alleges that Micron had pre-suit knowledge of the asserted patents because Micron cited to
`Elm’s patents during prosecution of Micron’s patent applications. As alleged support, Elm
`
`4
`
`

`

`Case 1:14-cv-01432-LPS Document 275 Filed 05/27/20 Page 5 of 19 PageID #: 16965
`The Honorable Leonard P. Stark
`May 20, 2020
`
`identifies examples from Micron’s Information Disclosure Statement (“IDS”) submissions dating
`2000, 2005, 2008, and 2009. FAC at ¶ 51. Elm’s claim fails because disclosures to the Patent
`Office citing documents are insufficient to show pre-suit knowledge of infringement.
`
`Delaware courts have rejected arguments similar to Elm’s.5 In Chalumeau Power Sys., patentee
`alleged willfulness because the asserted patent was cited during prosecution of defendants’ three
`patent applications. Chalumeau, 2012 WL 6968938. The court rejected that argument, stating
`that the alleged facts “do not…make actual knowledge of the [asserted] patent’s existence by the
`two moving defendants plausible. The connection between the moving defendants and the patent
`applications from nearly a decade ago are not explained sufficiently to make plausible that either
`of the defendants had actual knowledge….” Id. at *1. The court concluded: “The factual
`support for the allegation of willfulness made in the Amended Complaint is insufficient. The
`factual allegations do not plausibly support the conclusion that each defendant ‘acted despite an
`objectively high likelihood that its actions constituted infringement of a valid patent,’ and that
`defendants knew or should have known that their actions constituted infringement….” Id. at *2.
`
`Similarly, in DermaFocus, the defendant’s founder was listed as an inventor on a patent
`application, and the plaintiff alleged defendant had pre-suit knowledge of infringement because
`an IDS was filed in connection with that application that listed the asserted patent as “one of
`seven listed ‘material references’ for determining patentability.” DermaFocus LLC v. Ulthera
`Inc., 201 F.Supp.3d 465, 467-468 (D. Del. 2016). The court held that “given the implausible
`inferences related to presuit knowledge, the court grants the motion to dismiss the FAC as it
`relates to pre-complaint willfulness.” Id. at 473. The court reasoned that while the asserted
`patent was cited on an IDS, “[t]here is no indication…that the [asserted] patent was mentioned
`again during prosecution…or otherwise by defendant before the instant litigation was filed….
`Although it is certainly conceivable that [the inventor] took note of the [asserted] patent a decade
`ago and shared his knowledge thereafter with others at his company, the court concludes that the
`allegations are neither likely nor reasonable; i.e., no plausible inference arises from the alleged
`facts that defendant had knowledge of the [asserted] patent in 2005.” Id. at 471.
`
`Elm’s allegations of Micron’s pre-suit knowledge are based on even more tenuous facts than the
`above cases. As an initial matter, many of the patents Elm alleges were included on an IDS are
`not asserted in this case. Elm makes the implausible argument that, when a patent applicant’s
`outside counsel lists a patent on an IDS, the patent owner has knowledge of not only the patent
`itself, but also other related patents in the family or naming the same inventor. Even if the
`argument were limited to only the asserted patents, Elm’s argument still fails. In several of the
`disclosures, the asserted patents are a small fraction of dozens, if not hundreds, of cited prior art
`references. That is different from situations where the Examiner applied a prior art patent that
`the applicant then needed to study and distinguish to overcome. Moreover, at any given time
`Micron has over 6,000 pending applications. As of August 2019, Micron owned over 13,000
`U.S. patents and over 5,000 active foreign patents. It would be unreasonable to expect Micron to
`“have knowledge” regarding all of the references cited in all of those patents and applications.
`
`
`
`5 While one earlier Delaware case found notice of the asserted patent based on an IDS submission to the PTO,
`Mallinckrodt Inc. v. E-Z-EM Inc., 671 F. Supp. 2d 563, 569 (D. Del. 2009), the more recent Delaware cases
`Chalumeau and DermaFocus rejected this argument.
`
`5
`
`

`

`Case 1:14-cv-01432-LPS Document 275 Filed 05/27/20 Page 6 of 19 PageID #: 16966
`The Honorable Leonard P. Stark
`May 20, 2020
`
`Respectfully,
`
`/s/ Frederick L. Cottrell, III
`
`Frederick L. Cottrell, III (#2555)
`
`cc:
`
`All Counsel of Record
`
`6
`
`

`

`Case 1:14-cv-01432-LPS Document 275 Filed 05/27/20 Page 7 of 19 PageID #: 16967
`Case 1:14-cv-01432-LPS Document 275 Filed 05/27/20 Page 7 of 19 PageID #: 16967
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`
`
`
`
`
`EXHIBIT A
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`EXHIBIT A
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`

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`Case 1:14-cv-01432-LPS Document 275 Filed 05/27/20 Page 8 of 19 PageID #: 16968
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`ELM 3DS INNOVATIONS, LLC,
`
`
`
`
`Plaintiff,
`
`
`v.
`MICRON TECHNOLOGY, INC., et al.,
`
`
`
`Defendants.
`
`
`C.A. No. 14-cv-1431-LPS
`
`JURY TRIAL DEMANDED
`
`
`
`
`
`ELM’S RESPONSES TO MICRON’S FIRST SET OF
`INTERROGATORIES
`
`Under Rule 33 of the Federal Rules of Civil Procedure and Local Civil Rule 26.1, Plaintiff
`
`Elm Technology Innovations, LLC, (“Elm”), through its counsel Bartlit Beck LLP responds to
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`Defendant Micron Technology, Inc., Micron Semiconductor Products, Inc. and Micron Consumer
`
`Products Group, Inc.’s (Case No. 14-cv-01431-LPS-CJB) (“Micron”) First Set of Interrogatories.
`
`GENERAL OBJECTIONS
`
`Elm makes the following General Objections to each Interrogatory, as applicable, in addition
`
`to any objections that are made to particular Interrogatories:
`
`1.
`
`Elm bases its responses to these Definitions, Instructions, and Interrogatories
`
`upon information known at this time. Elm’s investigation is ongoing and Elm reserves the right to
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`rely upon any facts, documents, or other evidence that it may develop or that may come to its
`
`attention at a later time. Elm sets forth these responses without prejudice to its right to supplement
`
`these responses or assert additional objections should it discover additional information or
`
`additional grounds for objections.
`
`2.
`
`Elm objects to each Definition, Instruction, and Interrogatory to the extent that it
`
`purports to impose any requirement or discovery obligation upon Elm beyond those set forth by the
`
`Federal Rules of Civil Procedure, the Scheduling Order, the applicable rules of the United States
`
`

`

`Case 1:14-cv-01432-LPS Document 275 Filed 05/27/20 Page 9 of 19 PageID #: 16969
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`District Court for the District of Delaware, or any stipulation or agreement of the parties. Elm will
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`comply with its obligations under those rules, as well as its obligations under the Scheduling Order.
`
`3.
`
`Elm objects to each Definition, Instruction, and Interrogatory to the extent that
`
`Elm would have to draw a legal conclusion in order to provide a proper response, including, but not
`
`limited to, a legal conclusion related to whether a reference constitutes prior art as used in the Patent
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`Act, 35 U.S.C. § 1, et seq.
`
`4.
`
`Elm objects to each Definition, Instruction, and Interrogatory to the extent that it
`
`purports to define words or phrases in a manner that is different from their commonly understood
`
`meaning.
`
`5.
`
`Elm objects to Micron’s definition of the terms “Elm,” “Plaintiff,” “you,” “Your,”
`
`“YOU,” and “YOUR,” set forth in Definition 2, and its inclusion of “all of its subsidiaries, parent
`
`companies, holding companies, divisions, subdivisions, components, unit, partnerships, limited
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`partnerships, joint ventures, associations, and affiliates; all predecessors, successors, and assigns of
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`each of the foregoing; all past and present officers, employees, directors, agents, consultants,
`
`representatives, and attorneys of each of the foregoing; and all other Persons acting or purporting to
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`act for, on behalf of, or in the interest of Elm” on the grounds that the definition is vague,
`
`indefinite, ambiguous, unduly broad, overly burdensome, and attempts to place a burden upon Elm
`
`that is inconsistent with the Federal Rules of Civil Procedure and the Local Rules of this Court. Elm
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`further objects to Micron’s definition of these terms the extent such definition purports to impose
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`discovery obligations on entities not parties to this lawsuit and over which Elm does not exercise
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`control.
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`6.
`
`Elm objects to Micron’s definition of “Prior art” as set forth in Definition 9, and
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`will understand the term according to applicable legal standards under 35 U.S.C. §§ 102 and 103.
`
`2
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`
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`

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`Case 1:14-cv-01432-LPS Document 275 Filed 05/27/20 Page 10 of 19 PageID #: 16970
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`7.
`
`Elm objects to Micron’s definition of “Related Patent” in Definition 10 as vague
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`and overbroad, to the extent that it purports to impose any requirement or discovery obligation
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`upon Elm beyond those set forth by the Federal Rules of Civil Procedure or the applicable rules of
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`the United States District Court for the District of Delaware. Elm further objects to the definition to
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`the extent that it imposes burdens on Elm that are not reasonably calculated to lead to the discovery
`
`of admissible evidence.
`
`8.
`
`Elm objects to Micron’s definition of “Related Patent Application” in Definition
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`11 as vague and overbroad, to the extent that it purports to impose any requirement or discovery
`
`obligation upon Elm beyond those set forth by the Federal Rules of Civil Procedure or the
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`applicable rules of the United States District Court for the District of Delaware. Elm further objects
`
`to the definition to the extent that it imposes burdens on Elm that are not reasonably calculated to
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`lead to the discovery of admissible evidence.
`
`9.
`
`Elm objects to Micron’s definition of “Document” in Definition 14 as overbroad
`
`and unduly burdensome to the extent that it purports to impose obligations beyond those of the
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`Federal Rules of Civil Procedure.
`
`10.
`
`Elm objects to Micron’s definition of the term “Communication” in Definition 15
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`set forth in Definition 12 on the grounds that the definition is vague, indefinite, ambiguous, unduly
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`broad, burdensome, and attempts to place a burden upon Elm that is inconsistent with the Federal
`
`Rules of Civil Procedure or the Local Rules of this Court.
`
`11.
`
`Elm objects to Micron’s definition of the term “People” and “Person” in
`
`Definition 8 on the grounds that the definition is vague, indefinite, ambiguous, unduly broad,
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`burdensome, and attempts to place a burden upon Elm that is inconsistent with the Federal Rules of
`
`Civil Procedure and/or the Local Rules of this Court.
`
`3
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`
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`

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`Case 1:14-cv-01432-LPS Document 275 Filed 05/27/20 Page 11 of 19 PageID #: 16971
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`12.
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`Elm objects to Micron’s definition of the terms “and” and “or” in Definition 17
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`on the grounds that the definition is vague, indefinite, ambiguous, unduly broad, burdensome, and
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`attempts to place a burden upon Elm that is inconsistent with the Federal Rules of Civil Procedure
`
`and the Local Rules of this Court.
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`13.
`
`Elm objects to Micron’s definition of the terms “Identify,” “identifying,”
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`“identity” or “identification” in Definition 23 on the grounds that the definition is vague, indefinite,
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`ambiguous, unduly broad, burdensome, and attempts to place a burden upon Elm that is
`
`inconsistent with the Federal Rules of Civil Procedure or the Local Rules of this Court. Elm further
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`objects to Micron’s definition of the terms “Identify,” “identifying,” “identity” or “identification”
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`when used in reference to a document or thing to the extent that it calls for information that Elm
`
`does not maintain in the ordinary course of business in a reasonably accessible manner.
`
`14.
`
`Elm objects to each Definition, Instruction, and Interrogatory to the extent that it
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`seeks information that is not relevant to the subject matter of these actions, is not relevant to the
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`claim or defense of any party, or is not reasonably calculated to lead to the discovery of admissible
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`evidence.
`
`15.
`
`Elm objects to each Definition, Instruction, and Interrogatory to the extent that it
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`is unduly burdensome, harassing, or oppressive and to the extent that the Definition, Instruction, and
`
`Interrogatory would require a search for documents or information that would be of little or no benefit
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`with respect to the issues or controversies in this action.
`
`16.
`
`Elm objects to each Definition, Instruction, and Interrogatory to the extent that it
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`calls for any information protected by the attorney-client privilege, the attorney work product
`
`doctrine, or any other applicable privilege or immunity. Disclosure of any such information shall not
`
`be deemed a waiver of any privilege or immunity. With respect to such information, Elm objects to
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`4
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`

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`Case 1:14-cv-01432-LPS Document 275 Filed 05/27/20 Page 12 of 19 PageID #: 16972
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`listing on a privilege log or otherwise identifying documents and communications that were created
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`or occurred subsequent to the commencement of this litigation.
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`17.
`
`Elm objects to each Definition, Instruction, and Interrogatory to the extent that it
`
`requests information that Elm is unable to locate following a reasonable search within the time
`
`frame for service of Elm’s responses to these Interrogatories. Elm further objects to each
`
`Definition, Instruction, and Interrogatory to the extent that it requires any information beyond what
`
`is presently available to Elm based upon a reasonable search of its own files and a reasonable inquiry
`
`of its current employees. Elm further objects to each Definition, Instruction, and Interrogatory to
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`the extent that it requires analysis of information that is not in the possession, custody or control of
`
`Elm.
`
`18.
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`Elm objects to each Definition, Instruction, and Interrogatory to the extent that it
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`is duplicative or cumulative or seeks information that may be obtained from other sources or
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`through other means of discovery that are more convenient, more efficient, more practical, less
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`burdensome, and/or less expensive.
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`19.
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`Elm objects to each Definition, Instruction, and Interrogatory to the extent it is
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`unlimited in time.
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`20.
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`In answering any of these Interrogatories, Elm does not concede the admissibility,
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`materiality, or relevance of any of the information provided.
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`21.
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`Elm reserves the right to modify, supplement, or amend these responses to the
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`extent permitted or required by the Federal Rules of Civil Procedure.
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`22.
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`Each response set forth below is given subject to each objection set forth in these
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`General Objections to Micron’s Definitions and Instructions. To the extent that Elm raises a
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`specific objection in response to any individual Interrogatory, the objection shall not be deemed or
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`construed as a waiver of any other objection set forth herein.
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`Case 1:14-cv-01432-LPS Document 275 Filed 05/27/20 Page 13 of 19 PageID #: 16973
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`23.
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`Elm objects to each Interrogatory, and to each Definition and Instruction, to the
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`extent that it calls for the disclosure of information that contains the confidential information of a
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`third party, or the joint confidential information of Elm and a third party, until Elm has requested
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`and received the consent of the affected third party to disclose such information, the matter has
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`been resolved by a court of competent jurisdiction, or Elm has otherwise exhausted all applicable
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`procedures under the Protective Order.
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`ANSWERS TO INTERROGATORIES
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`INTERROGATORY NO. 1:
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`Identify and describe all evidence—including but not limited to documents,
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`communications, and expected witness testimony—of a meeting between Glenn Leedy and Micron
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`as alleged in paragraph 50 of the First Amended Complaint.
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`ANSWER TO INTERROGATORY NO. 1:
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`Elm incorporates by reference each of its General Objections. In addition, Elm specifically
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`objects to this Interrogatory to the extent that it seeks information that is protected by the attorney-
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`client privilege, attorney-work-product doctrine, common-interest privilege, or any other privilege or
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`immunity.
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`Subject to and without waiving the foregoing general and specific objections, Elm responds
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`as follows:
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`Elm has already produced documents related to this Interrogatory in the course of discovery,
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`and those are hereby incorporated in accordance with Federal Rule of Civil Procedure 33(d). See, e.g.,
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`ELM3DS00041225; ELM3DS00041228. Elm further states that discovery is ongoing and that it will
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`supplement its response to this Interrogatory consistent with its obligations under Federal Rule of
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`Civil Procedure 26(e).
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`Case 1:14-cv-01432-LPS Document 275 Filed 05/27/20 Page 14 of 19 PageID #: 16974
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`In addition to documents, Elm expects Ron Epstein to testify that as early as 1996,
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`approximately two Micron employees met with Glenn Leedy to discuss thinning wafers. After Mr.
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`Leedy had received the first Elm 3DS Patent, the ’167 patent, Mr. Leedy reached back out and met
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`with Micron about the technology in the Elm 3DS Patents. By the end of 2001, Micron pledged to
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`invest in Elm 3DS’s technology.
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`Further, evidence of the meeting between Glenn Leedy and Micron could be contained in
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`documents Micron has produced or will produce, and such evidence could also be adduced during
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`deposition and trial testimony of Micron’s witnesses. Elm is not able to identify the evidence in
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`Micron’s possession, custody, or control at this time because discovery is ongoing, Micron has not
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`completed its document production, and no depositions have taken place.
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`Case 1:14-cv-01432-LPS Document 275 Filed 05/27/20 Page 15 of 19 PageID #: 16975
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`Dated: April 24, 2020
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`Respectfully submitted,
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`FARNAN LLP
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`/s/Michael J. Farnan
`Brian E. Farnan (#4089)
`Michael J. Farnan (#5165)
`919 North Market Street
`12th Floor
`Wilmington, DE 19801
`Tel: (302) 777-0300
`Fax: (302) 777-0301
`bfarnan@farnanlaw.com
`mfarnan@farnanlaw.com
`
`Adam K. Mortara (pro hac vice)
`Matthew R. Ford (pro hac vice)
`BARTLIT BECK LLP
`54 W. Hubbard Street, Suite 300
`Chicago, IL 606