`ELM 3DS INNOVATIONS LLC, a Delaware
`Limited Liability Company,
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`Plaintiff,
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`C.A. No. 14-1430-LPS
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`Case 1:14-cv-01430-LPS Document 372 Filed 11/19/20 Page 1 of 2 PageID #: 22596
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`v.
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`SAMSUNG ELECTRONICS CO., LTD., a
`Korean Business Entity, SAMSUNG
`SEMICONDUCTOR, INC., a California
`Corporation, SAMSUNG ELECTRONICS
`AMERICA, INC., a New York Corporation,
`SAMSUNG AUSTIN SEMICONDUCTOR,
`LLC, a Delaware Limited Liability Company,
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`Defendants.
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`MEMORANDUM ORDER
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` Pending before the Court is Defendants’ (collectively, “Samsung’s”) request to compel
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`certain litigation funding-related discovery from Plaintiff (“Elm”). (See D.I. 341, 344, 348, 349,
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`355, 367, 371.) During a discovery dispute teleconference, the Court ordered Elm to produce for
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`in camera review a selection of 50 disputed documents from the following four categories: (1)
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`agreements with third parties that provided or considered providing litigation funding (Category
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`1); (2) communications with third parties that did not provide litigation funding (Category 2); (3)
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`communications with funders that occurred prior to this litigation (Category 3); and (4)
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`communications with funders that occurred after this litigation began (Category 4). Samsung
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`contends that the disputed discovery is relevant to damages, “key” substantive patent issues,
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`standing, “trial themes,” and bias. Samsung further argues that the requested discovery is not
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`privileged or protected by the work product doctrine. Elm responds that the disputed documents
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`are irrelevant and protected by the work product doctrine.
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`Case 1:14-cv-01430-LPS Document 372 Filed 11/19/20 Page 2 of 2 PageID #: 22597
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`Having now reviewed in camera the documents submitted by Elm, and having considered
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`all of the parties’ filings, IT IS HEREBY ORDERED that Samsung’s request to compel
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`discovery is DENIED.
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`1.
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`“Discoverability of litigation funding materials under Federal Rule of Civil
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`Procedure 26 is a contested issue on which there is no binding precedent in the Third Circuit.”
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`United Access Techs., LLC v. AT&T Corp., No. CV 11-338-LPS, 2020 WL 3128269, at *1 (D.
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`Del. June 12, 2020). Judges in this district have found it “prudent” to review in camera disputed
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`litigation funding-related documents. Id. That is the approach the Court has taken here.
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`2.
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`I conclude that the documents in Category 1 are not relevant. Although there is a
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`split of authority, I agree with the courts that have concluded that litigation funding agreements
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`themselves are generally not relevant. I have also reviewed the submitted documents at issue here,
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`and I agree with Elm that they are not relevant to any of the issues proffered by Samsung.
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`3.
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`Having reviewed the submitted documents in Categories 2 and 3, I note that
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`portions of certain attachments to a subset of those documents discuss litigation strategy with
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`respect to the patents-in-suit and are thus (arguably) marginally relevant to the parties’ claims and
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`defenses. However, those documents were clearly prepared in anticipation of litigation (regardless
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`of which test applies to that determination) and are thus protected by the work product doctrine.1
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`4.
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`I conclude that the documents in Category 4 are protected by the work product
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`doctrine.
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`Dated: November 19, 2020
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` ___________________________________
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`The Honorable Jennifer L. Hall
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`UNITED STATES MAGISTRATE JUDGE
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`1 Samsung has not argued that any work product protection was waived because the
`documents were disclosed to a third party, and I would reject that argument.
`2
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