Case 1:14-cv-01430-LPS Document 438 Filed 10/01/21 Page 1 of 4 PageID #: 26572
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`ELM 3DS INNOVATIONS, LLC,
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`SAMSUNG ELECTRONICS CO., LTD.,
`SAMSUNG SEMICONDUCTOR, INC.,
`SAMSUNG ELECTRONICS AMERICA, INC.,
`and SAMSUNG AUSTIN SEMICONDUCTOR,
`LLC,
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`v.
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`Plaintiff,
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`Defendants.
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`C.A. No. 14-01430-LPS-JLH
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`SAMSUNG’S OPPOSITION TO ELM’S EMERGENGY MOTION
`REGARDING RON EPSTEIN’S DEPOSITION
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`Elm’s emergency motion to proceed with the deposition of Ron Epstein on October 4
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`should be denied. Samsung never agreed to proceed with Epstein’s deposition on October 4, and
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`the record plainly supports that fact. Epstein is Elm’s sole corporate and fact witness in this
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`litigation, which has spanned seven years and for which the parties are currently negotiating a
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`further extension of fact discovery. Given the history of this case and the remaining time in
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`discovery, Elm has no basis to bring this motion attempting to force his deposition to
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`immediately proceed at this time.
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`The only support that Elm puts forth for its position is an incomplete statement from
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`Samsung’s portion of the parties’ Joint Status Letter (D.I. No. 433). The portion that Elm omits
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`with an ellipsis is set forth in full below:
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`In light of the asymmetry in protections the parties have against potential discovery
`abuse, Samsung is willing to proceed with a consecutive four-day deposition of
`Epstein beginning October 4, provided that Elm be required to reserve additional
`deposition time after the four-day period if (1) Elm produces additional discovery
`after the deposition or in a manner that leaves Samsung insufficient time to
`review it before the deposition, and/or (2) the Court’s assistance is necessary for
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`Case 1:14-cv-01430-LPS Document 438 Filed 10/01/21 Page 2 of 4 PageID #: 26573
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`issues that arise during the deposition, such as the potential issues identified
`above. It is already apparent that Samsung will need additional deposition time if
`the outstanding issues with Elm’s privilege log and the Epicenter Law engagement
`agreement are not resolved sufficiently in advance of the deposition, given the large
`number of Epstein’s communications that remain in dispute and their clear
`relevance. The backstop of additional deposition time is necessary, given that
`Epstein is Elm’s only deponent under Rule 30(b)(1) and Rule 30(b)(6).
`Alternatively, Samsung is willing to split the four-day deposition into two or more
`blocks that would ensure reasonable time for Samsung to seek and obtain any
`additional discovery it learns about during the deposition. Samsung respectfully
`requests the Court’s guidance with respect to these issues on the forthcoming
`deposition of Epstein.
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`D.I. No. 433 at 11 (emphasis added). On Friday, September 24, the Court ordered that Epstein’s
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`deposition should proceed in a single four-day block. D.I. No. 434. Under that order, the
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`provisos in Samsung’s statement do not apply: the issues regarding Elm’s privilege log have not
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`yet been resolved, and the Court has not yet decided whether Samsung will receive an
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`unredacted copy of Ron Epstein’s compensation agreement. Moreover, just yesterday,
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`September 30, Elm produced another batch of documents in response to Samsung’s outstanding
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`discovery requests. See Ex. A. Even if those documents satisfied all of Samsung’s outstanding
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`discovery requests (which is not the case), Samsung would need sufficient time in advance of
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`Epstein’s deposition to digest those documents, certainly more than one business day. Because
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`Samsung’s conditions for moving forward with Epstein’s deposition on October 4 were not met
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`and the Court denied Samsung’s request, Elm cannot contend that there was an agreement to
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`move forward on those days.
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`Nothing occurred after the Court’s order that could have changed Elm’s understanding.
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`Samsung made no statements to Elm regarding Epstein’s deposition. Elm made no effort to
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`confirm Epstein’s deposition before an email yesterday, September 30 at 6 p.m. ET from a
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`paralegal employed by Elm’s counsel requesting the identity of the court reporting firm for
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`Epstein’s deposition. See Ex. B. Elm’s motion fails to point any effort on its part to confirm that
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`Case 1:14-cv-01430-LPS Document 438 Filed 10/01/21 Page 3 of 4 PageID #: 26574
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`Samsung would be proceeding with Epstein’s deposition on October 4. Nor does it identify any
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`commitment or indication from Samsung that it would be doing so.
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`Elm has acknowledged the need for documents sufficiently in advance of its depositions
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`of Samsung’s witnesses. In July, Elm refused to proceed with the deposition of senior Samsung
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`engineer Sunhyun Kim on the eve of his deposition because of a document production that
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`Samsung had made a few days earlier, and even though Samsung had already prepared the
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`witness for multiple days. See Ex. C. Unlike here, the date for that deposition had been mutually
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`agreed and confirmed well in advance of the deposition. Elm was not even awaiting further
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`document productions relevant to that deposition, which is different than the present situation for
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`Epstein’s deposition.
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`In short, Elm demands to proceed with a deposition on dates that Samsung never agreed
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`to and without providing relevant, outstanding discovery to Samsung in advance of that
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`deposition. Elm’s “offer” to reserve the fourth day of Epstein’s deposition for a later date, which
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`was provided for the first time to Samsung yesterday evening after 9 p.m. ET, does nothing to
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`alleviate the significant prejudice to Samsung that would result from being forced to proceed
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`with Epstein’s deposition on October 4. Samsung has been proceeding with the understanding
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`that Epstein’s deposition would be rescheduled for later in fact discovery after Elm produces and
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`Samsung has a chance to digest all documents relevant to that deposition. Elm made no
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`statement or inquiry contrary to that understanding before springing this deposition on Samsung
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`with a seemingly innocuous email less than two business days before Elm contends that it was
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`set to begin.
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`The record does not support Elm’s alleged claim that Epstein’s deposition was set to
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`proceed on October 4. Even assuming that there was simply a misunderstanding between the
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`Case 1:14-cv-01430-LPS Document 438 Filed 10/01/21 Page 4 of 4 PageID #: 26575
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`parties, Elm has no good reason for why Epstein’s deposition should not be continued to a later
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`date given the time remaining in fact discovery and the fact that the parties are currently
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`negotiating a further extension to fact discovery. This emergency motion appears intended to
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`prejudice Samsung by forcing Epstein’s deposition to occur before Samsung is fully prepared
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`and before it has all the relevant information. Elm’s requested relief should be denied, and the
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`parties should be ordered to agree upon and schedule four days for Epstein’s deposition near the
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`close of fact discovery.
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`Dated: October 1, 2021
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`Respectfully submitted,
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`YOUNG CONAWAY STARGATT &
`TAYLOR, LLP
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`
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`/s/ Adam W. Poff
`Adam W. Poff (No. 3990)
`Pilar G. Kraman (No. 5199)
`Rodney Square
`1000 North King Street
`Wilmington, DE 19801
`(302) 571-6600
`apoff@ycst.com
`pkraman@ycst.com
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`Attorneys for Defendants Samsung Electronics
`Co., Ltd., Samsung Semiconductor, Inc.,
`Samsung Electronics America, Inc., and
`Samsung Austin Semiconductor, LLC
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