Case 1:14-cv-01430-LPS Document 472 Filed 02/10/22 Page 1 of 5 PageID #: 27352
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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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`Plaintiff,
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`v.
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`C.A. No. 14-cv-1430-LPS
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`JURY TRIAL DEMANDED
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`SAMSUNG ELECTRONICS CO., LTD., et al.,
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`FILED UNDER SEAL
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`Defendants.
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`LETTER TO THE HONORABLE JENNIFER L. HALL
`REGARDING SAMSUNG’S RESPONSES TO ELM’S INTERROGATORY NOS. 6–8
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`Dated: February 7, 2022
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`Brian E. Farnan (#4089)
`Michael J. Farnan (#5165)
`FARNAN LLP
`919 North Market Street, 12th Floor
`Wilmington, DE 19801
`(302) 777-0300
`bfarnan@farnanlaw.com
`mfarnan@farnalaw.com
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`Attorneys for Plaintiff Elm 3DS
`Innovations, LLC
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`Case 1:14-cv-01430-LPS Document 472 Filed 02/10/22 Page 2 of 5 PageID #: 27353
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`Dear Judge Hall,
`Elm moves to compel Samsung to provide narrative responses to Interrogatories 6, 7, and 8.
`These interrogatories seek such core technical information as the dimensions and composition of
`the representative products.1 Instead of substantively responding to these interrogatories, Samsung
`has invoked Rule 33(d), which permits a party to answer an interrogatory by identifying documents
`where “the burden of deriving or ascertaining the answer” from the documents “will be substantially
`the same for either party.” Samsung’s reliance on Rule 33(d) is improper.
`The documents Samsung has identified are exceedingly difficult for Elm to decipher. They
`contain copious foreign language content, include nomenclature that is impossible for Elm to
`decode, and bury the requested information in a maze of extraneous data. Further, the portions of
`Samsung documents that Elm has been able to decipher include contradictory information about
`such basic features as die thickness and the dielectrics used in the products. Finally, the documents
`appear to be missing critical data sought in Elm’s interrogatories. Discovery in this case began nearly
`seven years ago. It is long past time for Samsung to provide complete, straightforward answers to
`basic questions about its products that are critical to the infringement analysis.
`Procedural History
`Elm served Interrogatories 6, 7, and 8 nearly two years ago. See Ex. 1. Samsung’s response
`invokes Rule 33(d) and identifies thousands of pages of documents. See Ex. 2. Elm did not
`immediately press Samsung for a narrative response because Samsung had indicated it would
`provide product-specific discovery only after the parties reached a representative products
`agreement. See, e.g., Ex. 3 at 1–2. The parties finalized that agreement late last year. See D.I. 443. In
`that agreement, Samsung committed to provide early discovery on three “exemplar” products. Id. at
`6. Elm identified the three exemplar products nearly five months ago. See Ex. 4. After receiving
`Samsung’s documents, Elm asked Samsung to supplement its interrogatory responses so that “Elm
`could evaluate the sufficiency of Samsung’s supplementation.” Ex. 5 at 4. Approximately one month
`later, Samsung produced an Exemplar Product Chart “correlating documents to the three exemplary
`products in relation to certain of Elm’s interrogatories.” Ex. 6. Elm promptly informed Samsung
`that its reliance on Rule 33(d) was improper, and that narrative responses were required. See Ex. 7.
`Samsung has refused to provide narrative responses, see Ex. 8, so Elm brought the instant motion.
`The Burden of Deriving the Relevant Information is Substantially Greater for Elm
`Samsung is in a far better position than Elm to interpret the documents cited in the
`Exemplar Product Chart. The documents are chock-full of impenetrable technical jargon and codes
`that Elm cannot decipher.
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`Courts have rejected reliance on Rule 33(d) where the cited records
`contain nomenclature more readily understandable to the responding party. See, e.g., Boldstar Tech.,
`LLC v. Home Depot, Inc., No. 07-80435-CIV, 2008 WL 11320212, at *3 (S.D. Fla. Apr. 4, 2008)
`(ordering Home Depot to supplement interrogatory responses that cited documents containing
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`1 Elm’s interrogatories actually seek this data for all accused products. But Elm’s motion is limited to
`the 194 representative products. In another effort to narrow this dispute, Elm only addresses a
`subset of the interrogatory responses that improperly rely on Rule 33(d). Elm hopes the Court’s
`guidance here will enable the parties to sort out their disputes over the other interrogatories.
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`Case 1:14-cv-01430-LPS Document 472 Filed 02/10/22 Page 3 of 5 PageID #: 27354
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`“numerous columns with only numbers or alphanumeric codes and other undefined terms”); Cornell
`Rsch. Found., Inc. v. Hewlett Packard Co., 223 F.R.D. 55, 76, 76 at n.18 (N.D.N.Y. 2003) (ordering HP
`to provide narrative responses where the cited documents included “nomenclature specific to HP”).
`This problem pervades Samsung’s interrogatory responses.
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` Elm can only guess.
`Further compounding the disproportionate burden on Elm is Samsung’s reliance on
`numerous documents with foreign language content. See, e.g., Exs. 10, 14–16, 18 (documents with
`significant Korean content). Courts routinely reject reliance on foreign language documents in
`interrogatory responses made pursuant to Rule 33(d). See, e.g., Sungjin Fo-Ma, Inc. v. Chainworks, Inc.,
`No. 08-CV-12393, 2009 WL 2022308, at *5–6 (E.D. Mich. July 8, 2009) (reliance on Korean
`documents improper where “Plaintiff can readily refer to the documents and extract the information
`necessary to provide an English language answer”); Gamevice, Inc. v. Nintendo Co., No. 18-CV-01942-
`RS (TSH), 2019 WL 2763008, at *2 (N.D. Cal. July 2, 2019) (same for Japanese documents).
`Finally, the Exemplar Product Chart repeatedly cites a “standalone computer.” Ex. 6. The
`documents on this computer are available to Elm under extraordinarily restrictive conditions,
`including restrictions on copying. See Ex. 11 at 3; D.I. 72. Rule 33(d) requires that the receiving party
`be permitted to “make copies, compilations, abstracts, or summaries” of the documents. Samsung
`cannot rely on documents sequestered on this standalone computer to respond to interrogatories.
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` But “Rule 33(d) requires the specification of records from which the answer
`to [Interrogatories 6, 7, and 8] may be obtained without further explanation.” Scanlon v. Curtis Int’l,
`Ltd., No. 1:19-cv-00937-NONE-SKO, 2020 WL 7360543, at *8 (E.D. Cal. Dec. 15, 2020) (citation
`and quotation omitted) (emphasis added). It is not enough for Samsung to offer to iteratively
`address “specific concerns Elm may have” about Samsung’s documents. Ex. 8. That process would
`significantly delay discovery. Indeed, Samsung still has not resolved a discrepancy Elm raised a
`month ago. See Ex. 13. Samsung should provide complete, final interrogatory responses.
`Samsung’s Responses Contain Contradictory Data
`The limited portions of the documents cited in the Exemplar Product Chart that Elm has
`been able to decode provide contradictory data regarding fundamental features of the exemplar
`products.
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`Case 1:14-cv-01430-LPS Document 472 Filed 02/10/22 Page 4 of 5 PageID #: 27355
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`hese discrepancies about issues central to infringement also call into doubt the
`data in the Representative Products Agreement. Samsung represented to this Court that the data
`there was “accurate to the best of its knowledge,” and acknowledged that Elm was “relying on this
`data.” Id. at 1. Samsung cannot backtrack now from the information provided in that agreement.
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`Without additional
`guidance from Samsung, Elm cannot determine which dielectrics are included in this product.2
`Samsung is in a far better position than Elm to decode its technical documents. It is simply
`“implausible for [Samsung] to contend that the plaintiff stands on equal footing when it comes to
`determining how [Samsung’s] own products operate.” Laserdynamics, Inc. v. Asus Comput. Int’l, No.
`2:06-CV-348, 2009 WL 153161, at *2 (E.D. Tex. Jan. 21, 2009) (ordering narrative responses and
`sanctioning the defendant for its improper reliance on Rule 33(d)).
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` Someone at Samsung must know the size and
`arrangement of the dies in this product, and the dielectrics that it uses. Elm has tried and failed to
`derive this type of data from Samsung’s documents. Samsung should provide narrative responses.
`Samsung’s Documents Do Not Provide Complete Answers to Elm’s Interrogatories
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`In the absence of narrative responses or documents that clearly answer Elm’s interrogatories,
`it is exceedingly difficult to pinpoint data missing from Samsung’s responses. But after carefully
`studying Samsung’s documents, Elm has identified a troubling omission that is worth highlighting.
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`But Samsung’s response is
`silent on the issue, thus leaving Samsung the wiggle-room to surprise Elm at trial with testimony that
`might undermine Elm’s infringement positions. Such gamesmanship should not be tolerated.
`Conclusion
`In contrast to Elm, the burden on Samsung to supply narrative responses to these
`interrogatories should be minimal. Samsung has represented that the documents listed in the
`Exemplar Product Chart contain the requested data. To make that representation, someone at
`Samsung must have reviewed the documents and figured out what they say. Elm is merely asking
`that Samsung share that information. Accordingly, Elm respectfully requests that the Court order
`Samsung to provide complete narrative responses, in English, to Elm Interrogatories 6–8.
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`Case 1:14-cv-01430-LPS Document 472 Filed 02/10/22 Page 5 of 5 PageID #: 27356
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`cc: Counsel of Record (Via E-Mail)
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`Respectfully submitted,
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`/s/ Michael J. Farnan
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`Michael J. Farnan
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