Case 1:14-cv-01430-LPS Document 479 Filed 02/23/22 Page 1 of 10 PageID #: 27897
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 14-1430-LPS
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`REDACTED VERSION
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`ELM 3DS INNOVATIONS, LLC, a
`Delaware limited liability company,
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`Plaintiff,
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`v.
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`SAMSUNG ELECTRONICS CO., LTD.,
`SAMSUNG SEMICONDUCTOR, INC.,
`SAMSUNG ELECTRONICS AMERICA,
`INC., and SAMSUNG AUSTIN
`SEMICONDUCTOR, LLC,
`
`Defendants.
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`DEFENDANTS’ RESPONSE IN OPPOSITION TO JULIETTE E. LIPPMAN’S
`MOTIONS FOR PROTECTIVE ORDER
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`Dated: February 16, 2022
`
`YOUNG CONAWAY STARGATT &
`TAYLOR, LLP
`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
`
`Attorneys for Defendants Samsung Electronics
`Co., Ltd., Samsung Semiconductor, Inc.,
`Samsung Electronics America, Inc., and
`Samsung Austin Semiconductor, LLC
`
`28987958.1
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`

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`Case 1:14-cv-01430-LPS Document 479 Filed 02/23/22 Page 2 of 10 PageID #: 27898
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 14-cv-01430-LPS
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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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`
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`v.
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`
`
`Plaintiff,
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`Defendants.
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`DEFENDANTS’ RESPONSE IN OPPOSITION TO JULIETTE E. LIPPMAN’S
`MOTIONS FOR PROTECTIVE ORDER
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`Defendants Samsung Electronics Co., Ltd., Samsung Semiconductor, Inc., Samsung
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`Electronics America, Inc., and Samsung Austin Semiconductor, LLC (collectively, “Samsung”)
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`hereby respond to the motions of Ms. Juliette E. Lippman, Esquire, for a protective order regarding
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`the subpoenas for documents and a deposition issued to her in this case. D.I. 464, 465, 469.1 Ms.
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`Lippman’s motions should be denied because the primary basis for her opposition is that Samsung
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`is seeking attorney-client privileged or work-product protected documents. But Samsung is not
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`seeking such documents. Instead, Samsung seeks relevant, responsive documents relating to the
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`value of patents asserted in this case and that are not privileged and not protected work product—
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`such as deposition transcripts from the divorce where the patents were discussed.
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`1 Because of the substantial overlap in arguments, Samsung is submitting this single opposition
`opposing the protective order motions regarding documents and a deposition. All cites to Ms.
`Lippman’s protective order motion regarding documents are to D.I. 469, which is Ms. Lippman’s
`amended motion.
`
`-1-
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`

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`Case 1:14-cv-01430-LPS Document 479 Filed 02/23/22 Page 3 of 10 PageID #: 27899
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`I.
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`FACTUAL BACKGROUND
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`Elm 3DS Innovations, LLC (“Elm”) asserts numerous patents against Samsung in this case
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`where the named inventor is Mr. Glenn Leedy. Mr. Glenn Leedy was married to Ms. Julia Leedy
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`when he purportedly invented the subject matter of these asserted patents and filed for several of
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`them. See Ex. 1 (Excerpts of the Nov. 18, 2012 Leedy Divorce Agreement) at 9. In 2011, divorce
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`proceedings were initiated between Mr. Leedy and Ms. Leedy. The value of the patents, including
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`the value of Elm Technology Corporation—the entity that Mr. Leedy and Ms. Leedy jointly owned
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`and to which the patents were assigned (Ex. 1 at 9)—was at issue during the divorce, which
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`concluded in 2012. After becoming aware of the divorce through review of documents produced
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`by Elm, Samsung obtained copies of all publicly available documents filed during the divorce
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`proceedings. See, e.g., Ex. 1. The divorce agreement—one of the documents obtained by
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`Samsung—provides a formula designating how a portion of the proceeds from monetizing the
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`patents would flow to Ms. Leedy. Id. at 17–18; see also Ex. 2 (Patent Related Exhibits to the
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`Divorce Agreement) at 1–2. Thus, the divorce agreement confirmed that the value of the patents
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`was at issue during the divorce. Furthermore, disclosures of witnesses during the divorce included
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`experts regarding patent valuation. See, e.g., Ex. 3 (Excerpt of July 2012 Witness List) at 2.
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`Therefore, Samsung issued subpoenas to the divorce attorneys—including Ms. Lippman, who was
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`Mr. Leedy’s divorce attorney, on January 12, 2022—seeking documents and a deposition relating
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`to the value of the patents. D.I. 469-2 (Document Subpoena); Ex. 4 (Deposition Subpoena).
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`On January 27, 2022, prior to Ms. Lippman filing her motion for a protective order,
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`Samsung spoke with Ms. Lippman regarding the subpoenas and made clear that Samsung was not
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`seeking to break or have anybody waive any attorney-client privilege between Ms. Lippman and
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`Mr. Leedy. Ex. 5 (Jan. 27, 2022 Email from Razick to Lippman). Samsung also made clear that
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`it was willing to work with Ms. Lippman to identify mutually agreeable times and places for
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`-2-
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`Case 1:14-cv-01430-LPS Document 479 Filed 02/23/22 Page 4 of 10 PageID #: 27900
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`document production (including via electronic means if that was easiest) and a deposition, if
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`necessary. Id. Ms. Lippman stated that she would look for her files from the divorce proceeding
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`and would speak with Samsung approximately a week later after doing so. Id. Later that evening,
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`Ms. Lippman filed her motions. D.I. 464, 465. The Court subsequently ordered the parties to meet
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`and confer. D.I. 467. On February 4, Ms. Lippman filed an amended motion regarding the
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`document subpoena—in which she acknowledged that she has files from the divorce proceedings.
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`D.I. 469 at 2 n.1.
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`On February 9, the parties conducted a meet and confer. Ms. Lippman confirmed that she
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`has multiple categories of documents from the divorce proceedings, which the parties discussed.
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`Samsung reiterated that it was only seeking non-privileged and non-work product documents
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`relating to the value of the patents. In particular, Ms. Lippman confirmed that she has deposition
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`transcripts from both Ms. Leedy and Mr. Leedy. While Ms. Lippman would not reveal details
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`because she maintained that the depositions are privileged, it seemed apparent to Samsung that at
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`least the deposition transcript of Mr. Leedy mentioned his patents. Samsung brings the present
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`opposition because Samsung still seeks Ms. Lippman’s compliance with the document and
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`deposition subpoenas. The issue is that Ms. Lippman is maintaining the position that documents
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`like deposition transcripts from the divorce proceeding are protected from disclosure by the
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`attorney-client privilege or the work-product doctrine. Samsung is aware of no basis for this
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`position, and Ms. Lippman has provided no support. Thus, Samsung requests that Ms. Lippman’s
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`motions be denied and that she produce these documents. In particular, Ms. Lippman should
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`produce all non-privileged, non-work product documents—including deposition transcripts—
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`regarding or relating to the value of the patents at issue in the divorce, including any regarding or
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`relating to the value of Elm Technology Corporation.
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`-3-
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`Case 1:14-cv-01430-LPS Document 479 Filed 02/23/22 Page 5 of 10 PageID #: 27901
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`II.
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`ARGUMENT
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`Ms. Lippman has not shown good cause for a protective order because Samsung’s
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`subpoenas to Ms. Lippman do not subject her to “annoyance, embarrassment, oppression, or undue
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`burden or expense.” Fed. R. Civ. P. 26(c)(1). The party requesting a protective order bears the
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`burden of establishing good cause and must demonstrate “that disclosure will cause a ‘clearly
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`defined and serious injury.’” Dommel Properties, LLC v. Jonestown Bank & Tr. Co., No. 1:11-
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`cv-02316, 2013 WL 4855427, at *7 (M.D. Pa. Sept. 11, 2013) (quoting Glenmede Tr. Co. v.
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`Thompson, 56 F.3d 476, 483 (3d Cir. 1995)). Ms. Lippman has not made this showing.
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`To the extent Ms. Lippman’s motion is considered a motion to quash, she has not met her
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`heavy burden to quash the subpoenas. “The party seeking to quash the subpoena2 bears the burden
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`of demonstrating that the requirements of Rule 45 are satisfied.” Robocast, Inc. v. Microsoft Corp.,
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`No. 1:13-mc-00104-RGA, 2013 WL 1498666, at *1 (D. Del. Apr. 12, 2013) (citation and quotation
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`marks omitted). “Courts have described this as a heavy burden.” Id.
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`Document Subpoena. Ms. Lippman’s motion regarding documents should be denied
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`because Samsung is not seeking attorney-client privileged or work-product protected documents,
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`and documents like deposition transcripts are not privileged or protected work product. See D.I.
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`469 ¶¶ 5–6 (seeking a protective order based on privilege or work product); see supra Section I.
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`Samsung’s subpoenas seek documents and communications relating to the value of the patents at
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`issue in this case and related patents—some of which were also at issue in the divorce—and the
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`value of the entity to which the patents were assigned, Elm Technology Corporation. See, e.g.,
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`2 While styled as a motion for a protective order as opposed to a motion to quash, the primary
`basis for Ms. Lippman’s opposition—including in her motions and based on the parties’ meet
`and confers—is that the requested information is privileged or other protected matter, which
`requires quashing or modifying a subpoena under Federal Rule of Civil Procedure 45(d)(3)(iii).
`As explained in this opposition, Samsung does not seek privileged or protected matter.
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`-4-
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`

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`Case 1:14-cv-01430-LPS Document 479 Filed 02/23/22 Page 6 of 10 PageID #: 27902
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`D.I. 469-2 at Requests 1–10.3 Any such documents would be relevant to damages and potentially
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`other issues in this case. And even if the patents or Elm Technology Corporation were never
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`formally valued during the divorce, documents and information relating to their value would still
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`be responsive to Samsung’s subpoenas and relevant to this patent litigation. Furthermore,
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`documents from divorce proceedings are properly discoverable. See Bd. of Trustees of the
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`Michigan Laborers’ Pension Fund v. Rite Way Fence, Inc., No. 14-cv-14142, 2016 WL 6215982,
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`at *4 (E.D. Mich. Oct. 25, 2016) (ordering production of deposition transcripts and exhibits from
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`prior divorce proceeding pursuant to subpoena to divorce attorney’s law firm).
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`During the meet and confers with Ms. Lippman, Samsung made clear that it is not seeking
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`attorney-client privileged or work-product protected documents from the divorce. For example,
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`Samsung is not seeking protected communications between Ms. Lippman and her client, Mr.
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`Leedy. Instead, Samsung is seeking non-privileged, non-work product documents like deposition
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`transcripts and discovery produced between the parties. Ms. Lippman has erroneously asserted
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`that documents like deposition transcripts are privileged and/or work product but has not provided
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`any support for that position. Thus, Ms. Lippman’s motion for a protective order should be denied.
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`During the parties’ meet and confer and in her motion, Ms. Lippman offered several other
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`reasons to not produce documents, each of which should be rejected:
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`• Ms. Lippman stated that the personal representative of Mr. Leedy would need to
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`waive privilege and grant permission for the documents to be produced. D.I. 469
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`¶ 6. But the personal representative’s permission and waiver would only be needed
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`if Samsung were seeking privileged documents and waiver of privilege. See Fla.
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`3 Samsung’s subpoenas do not seek non-responsive information from the divorce like
`information regarding child custody, appraisal of cars or houses, etc. Samsung reiterated this
`during the meet and confers.
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`-5-
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`Case 1:14-cv-01430-LPS Document 479 Filed 02/23/22 Page 7 of 10 PageID #: 27903
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`Stat. § 90.502(3)(c). But Samsung is not seeking privileged documents, nor is
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`Samsung seeking any waiver of privilege.
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`• Ms. Lippman suggested that all non-privileged and non-work product protected
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`documents would have been filed and publicly available on the Florida divorce
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`case’s docket. Samsung, however, has not been able to locate, for example,
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`deposition transcripts or other discovery available on that docket.
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`• Ms. Lippman argues that the February 1 date for production was not coordinated
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`and no location was specified for production. D.I. 469 ¶ 3. Samsung, however,
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`was and remains willing to work with Ms. Lippman on both a time and method of
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`production. See Ex. 5 (noting extension of time for production to allow time to
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`search records). Given that Ms. Lippman has the documents on a DVD (D.I. 469
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`at 2 n.1), electronic transfer appears easiest for all parties—which is one method
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`specified in Samsung’s subpoena (D.I. 469-2).
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`Deposition Subpoena. 4 Ms. Lippman’s motion for a protective order regarding her
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`deposition should be denied because, as explained above, Samsung is not seeking attorney-client
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`privileged or work-product protected information. See D.I. 465 ¶¶ 3-4 (arguing for a protective
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`order based on privilege). Furthermore, while Samsung’s deposition subpoena did not explicitly
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`specify a location for a deposition, Samsung subsequently made clear to Ms. Lippman that it is
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`willing to proceed with a remote deposition via Zoom or other videoconferencing platform. Ex.
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`5. Thus, Ms. Lippman can attend any deposition from her office, home, or wherever else is
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`4 To the extent the Court orders Ms. Lippman to produce documents and she produces responsive
`documents, Samsung will review those documents and further evaluate whether a deposition is
`necessary. But given the limited information Ms. Lippman has provided to this point, Samsung
`must maintain its deposition subpoena.
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`-6-
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`Case 1:14-cv-01430-LPS Document 479 Filed 02/23/22 Page 8 of 10 PageID #: 27904
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`convenient. D.I. 465 ¶ 5 (requesting that she not be required to travel for a deposition). Finally,
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`Ms. Lippman’s complaint regarding the date of the subpoena (D.I. 469 ¶ 2) is obviated by
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`Samsung’s willingness to schedule any deposition at a mutually agreeable date and time (Ex. 5).
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`And the subpoena allowed more than a month after service for the deposition (D.I. 465 ¶¶ 1-2),
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`which is more than a reasonable time to comply. See, e.g., Subair Sys., LLC v. Precisionaire Sys.,
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`Inc., No. 08-cv-60570, 2008 WL 1914876, at *2 n.4 (S.D. Fla. Apr. 26, 2008) (stating that even
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`ten days to comply with a deposition subpoena could be deemed reasonable). Even if the Court
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`were to find that time insufficient, the solution would be to modify the time for the deposition. See
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`Robocast, 2013 WL 1498666, at *1 (“[T]his Court can lengthen the time frame of compliance.”).
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`Fees and Costs. Ms. Lippman’s motions each include a conclusory request for attorney’s
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`fees and costs related to the filing of the protective order motions. D.I. 465 ¶ 7; D.I. 469 ¶ 8. In
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`other words, Ms. Lippman seeks attorney’s fees for the filing of these motions—not costs or
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`expenses related to complying with the subpoenas.5 However, no attorney’s fees or costs are
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`warranted because Samsung took reasonable steps to avoid imposing an undue burden or expense
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`on Ms. Lippman, and Ms. Lippman has not shown otherwise. Fed. R. Civ. P. 45(d)(1). As
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`explained in this opposition, Samsung contends that Ms. Lippman’s motions lack merit and should
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`be denied. Ms. Lippman’s motions largely rely on the mistaken proposition that Samsung is
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`seeking privileged information—which Samsung has repeatedly stated that it is not—and the
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`legally erroneous assertion that items like deposition transcripts and discovery exchanged between
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`parties in litigation are privileged. Furthermore, Samsung has been working with and remains
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`5 Federal Rule of Civil Procedure 45(d)(2)(B)(ii) empowers a court to protect a party from
`“significant expense resulting from compliance” with a subpoena when ordering compliance.
`But Ms. Lippman has not attempted to show any significant expense or other justification for
`shifting costs related to complying with these subpoenas.
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`-7-
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`Case 1:14-cv-01430-LPS Document 479 Filed 02/23/22 Page 9 of 10 PageID #: 27905
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`willing to work with Ms. Lippman to minimize any burden, including by, for example, agreeing
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`to electronic production of documents and a remote deposition that requires no travel. Regardless
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`of the outcome of these motions, no attorney’s fees or costs should be awarded in these
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`circumstances.
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`*
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`*
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`*
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`For the reasons above, Samsung respectfully requests that Ms. Lippman’s motions for
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`protective order be denied.
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`-8-
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`Case 1:14-cv-01430-LPS Document 479 Filed 02/23/22 Page 10 of 10 PageID #: 27906
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`DATED: February 16, 2022
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`
`OF COUNSEL:
`
`Allan M. Soobert
`Naveen Modi
`Phillip W. Citroen
`Koichiro Kidokoro
`PAUL HASTINGS LLP
`875 15th Street, N.W.
`Washington, D.C. 20005
`(202) 551-1700
`allansoobert@paulhastings.com
`naveenmodi@paulhastings.com
`phillipcitroen@paulhastings.com
`koichirokidokoro@paulhastings.com
`
`Yar R. Chaikovsky
`Philip Ou
`Joseph J. Rumpler, II
`PAUL HASTINGS LLP
`1117 California Avenue
`Palo Alto, CA 94304
`(650) 320-1800
`yarchaikovsky@paulhastings.com
`philipou@paulhastings.com
`josephrumpler@paulhastings.com
`
`Elizabeth L. Brann
`PAUL HASTINGS LLP
`4747 Executive Drive, 12th Floor
`San Diego, CA 92121
`(858) 458-3000
`elizabethbrann@paulhastings.com
`
`Soyoung Jung
`PAUL HASTINGS LLP
`515 S. Flower Street, 25th Floor
`Los Angeles, CA 90071
`(213) 683-6000
`soyoungjung@paulhastings.com
`
`
`
`Respectfully submitted,
`
`/s/ Adam W. Poff
`YOUNG CONAWAY STARGATT &
`TAYLOR, LLP
`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
`Attorneys for Defendants Samsung Electronics
`Co., Ltd., Samsung Semiconductor, Inc.,
`Samsung Electronics America, Inc., and
`Samsung Austin Semiconductor, LLC
`
`-9-
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`