Case 1:14-cv-01430-LPS Document 480 Filed 02/24/22 Page 1 of 9 PageID #: 27923
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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,
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`Defendants.
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`DEFENDANTS’ RESPONSE IN OPPOSITION TO SUSAN R. BROWN’S
`MOTION FOR PROTECTIVE ORDER AS TO SUBPOENA FOR DOCUMENTS
`FROM DISSOLUTION OF MARRIAGE AND SUBPOENA FOR DEPOSITION
`
`Dated: February 17, 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 480 Filed 02/24/22 Page 2 of 9 PageID #: 27924
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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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`
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`Plaintiff,
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`Defendants.
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`DEFENDANTS’ RESPONSE IN OPPOSITION TO SUSAN R. BROWN’S
`MOTION FOR PROTECTIVE ORDER AS TO SUBPOENA FOR DOCUMENTS
`FROM DISSOLUTION OF MARRIAGE AND SUBPOENA FOR DEPOSITION
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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 motion of Ms. Susan R. Brown for a protective order regarding Samsung’s
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`document and deposition subpoenas. D.I. 470; Ex. 1.1 Ms. Brown’s motion should be denied
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`because she has responsive, non-privileged information that is relevant to the present patent case—
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`namely the deposition transcript of Ms. Julia Leedy, which “address[es] the valuation issue”
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`related to patents at issue in the divorce between Ms. Leedy and Mr. Glenn Leedy. D.I. 470 ¶ 8;
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`Ex. 1 ¶ 8. This deposition transcript is relevant to the present patent case, as the value of the same
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`patent family and some of the same patents asserted in this case was at issue in the Leedy divorce
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`proceeding. But Ms. Brown improperly refuses to produce this transcript on the basis that it is
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`1 As explained below, Ms. Brown emailed her initial motion to Samsung on February 3 and asked
`that it be e-filed, which Samsung did (D.I. 470). On February 17, Ms. Brown served an amended
`motion on Samsung via email, which is attached as Exhibit 1.
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`-1-
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`Case 1:14-cv-01430-LPS Document 480 Filed 02/24/22 Page 3 of 9 PageID #: 27925
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`attorney-client privileged or protected work product and that the deponent does not consent,
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`without providing any support for either position. Ms. Brown’s motion should be denied.
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`I.
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`FACTUAL BACKGROUND
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`On January 11, 2022, Samsung served a document subpoena and deposition subpoena on
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`Ms. Brown seeking information regarding the value of patents at issue in the divorce proceedings
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`between Mr. Leedy and Ms. Leedy, including the value of Elm Technology Corporation (an entity
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`jointly owned by Mr. Leedy and Ms. Leedy to which the patents were assigned at the time). Ex.
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`2 (Subpoenas); Ex. 3 (Excerpts of the Nov. 18, 2012 Leedy Divorce Agreement) at 9. Some of
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`the same patents and other patents from the same patent family are asserted against Samsung in
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`the present case. Ex. 3 at 9, 17–18; Ex. 4 (Patent Related Exhibits to the Divorce Agreement) at
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`1–3. On January 26 and 27, 2022, Samsung and Ms. Brown discussed the subpoenas, and Samsung
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`expressed its willingness to work with Ms. Brown to minimize any burden or inconvenience on
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`Ms. Brown relating to the subpoenas.
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`During those conversations, Ms. Brown acknowledged that she had in her records the
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`deposition transcript of Ms. Leedy from the divorce proceedings and that it included multiple
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`references to patents—the value of which was at issue during the divorce. But Ms. Brown
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`maintained that she could not produce the deposition transcript because it was attorney-client
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`privileged or protected work product and that she would only produce it with Ms. Leedy’s consent.
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`Based on those discussions, Samsung agreed to extend the deadline for Ms. Brown to produce
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`documents to allow time for further consideration. Ex. 5 (Jan. 2022 Email Chain Between Razick
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`and Brown) at Jan. 27, 2022 Email from Razick to Brown. Samsung also provided Ms. Brown the
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`contact information that it was aware of for Ms. Leedy’s current attorney because of the possibility
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`-2-
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`Case 1:14-cv-01430-LPS Document 480 Filed 02/24/22 Page 4 of 9 PageID #: 27926
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`that Ms. Leedy would consent to production and moot the issue. Id. at Jan. 31, 2022 Email from
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`Razick to Brown.2
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`On February 3, 2022, Ms. Brown served Samsung with her motion for a protective order
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`regarding both the document and deposition subpoenas. D.I. 470.3 In that motion, she confirmed
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`that she has possession of Ms. Leedy’s deposition transcript and that it “address[es] the valuation
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`issue” of the patents; Ms. Brown’s motion also included minor additional detail regarding the
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`contents of that transcript. Id. ¶ 8. While paragraph 8 of Ms. Brown’s motion indicated that she
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`attached relevant pages of Ms. Leedy’s deposition transcript as Exhibit A, Ms. Brown
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`subsequently confirmed to Samsung that this statement was in error. Ms. Brown did not intend to
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`include any Exhibit A or deposition transcript pages and did not do so. And on February 17, Ms.
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`Brown served an amended motion that removes the reference to an Exhibit A and removes some
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`of the additional detail regarding Ms. Leedy’s testimony. Ex. 1 ¶ 8. But the amended motion still
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`makes clear that the deposition transcript “address[es] the valuation issue” of the patents and
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`further suggests that Ms. Leedy offered, at least, her “opinion of the patents.” Id.
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`Ms. Leedy’s deposition testimony is relevant to issues in this case, including damages. But
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`Ms. Brown refuses to produce that transcript on the basis of attorney-client privilege and/or work-
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`product protection (id. ¶¶ 9–12) and Ms. Leedy’s objection to its production (id. ¶¶ 5, 13). As
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`explained below, neither is a proper basis to withhold production. And given Samsung’s
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`willingness to take any necessary deposition via Zoom or other videoconference platform at a date
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`2 As shown in this email, Samsung made clear that Ms. Leedy’s consent was not necessary, nor
`was her potential lack of consent a proper basis to withhold production.
`3 Ms. Brown provided her motion via email to counsel for Samsung and Elm on February 3, 2022.
`She subsequently asked that Samsung e-file the document on her behalf, which Samsung did on
`February 4. D.I. 470.
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`-3-
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`Case 1:14-cv-01430-LPS Document 480 Filed 02/24/22 Page 5 of 9 PageID #: 27927
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`and time that is convenient for Ms. Brown, Ms. Brown’s motion with respect to a deposition should
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`also be denied.
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`II.
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`ARGUMENT
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`Ms. Brown has not shown good cause for a protective order because Samsung’s subpoenas
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`to Ms. Brown do not subject her to “annoyance, embarrassment, oppression, or undue burden or
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`expense.” Fed. R. Civ. P. 26(c)(1). The party requesting a protective order bears the burden of
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`establishing good cause and must demonstrate “that disclosure will cause a ‘clearly defined and
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`serious injury.’” Dommel Properties, LLC v. Jonestown Bank & Tr. Co., No. 1:11-cv-02316, 2013
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`WL 4855427, at *7 (M.D. Pa. Sept. 11, 2013) (quoting Glenmede Tr. Co. v. Thompson, 56 F.3d
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`476, 483 (3d Cir. 1995)); see also AbbVie Inc. v. Boehringer Ingelheim Int’l GmbH, No. 17-cv-
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`1065, 2018 WL 2337133, at *1 (D. Del. May 23, 2018). Ms. Brown has not made this showing.
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`To the extent Ms. Brown’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 subpoena 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. Brown’s motion should be denied. First, Ms. Leedy’s
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`deposition transcript is relevant, as Ms. Brown’s motion acknowledges that it addresses the
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`valuation issue of the patents, which was an issue in the divorce. Ex. 1 ¶ 8; Ex. 3 at 9, 17–18; Ex.
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`4 at 1–3; see Pers. Audio, LLC v. Apple, Inc., No. 09-cv-111, 2011 WL 3269330, at *10 (E.D. Tex.
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`July 29, 2011) (finding patentee’s offer to sell patent and then-pending application for $5 million
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`relevant and worthy of “substantial weight” in determining patent damages). That the final divorce
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`agreement did not rely on Ms. Leedy’s testimony and did not put a specific dollar value on the
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`patents (Ex. 1 ¶ 8) does not render testimony regarding value irrelevant. Likewise, Ms. Brown’s
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`-4-
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`Case 1:14-cv-01430-LPS Document 480 Filed 02/24/22 Page 6 of 9 PageID #: 27928
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`suggestion that the 2012 time period of the transcript renders it irrelevant (id. ¶ 7) is unavailing,
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`especially because calculations of patent damages may relate to a time period many years prior to
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`the present day. See, e.g., Georgia-Pacific Corp. v. U.S. Plywood Corp., 318 F. Supp. 1116, 1120
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`(S.D.N.Y. 1970) (stating that factor 15 relates to an amount “at the time the infringement began.”).
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`Second, a deposition transcript is not protected by attorney-client privilege and does not
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`qualify as work product—regardless of whether it is filed. See Ex. 1 ¶¶ 9–12. Samsung is not
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`aware of any authority holding otherwise, and while Ms. Brown’s motion accurately quotes a
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`portion of Federal Rule of Evidence 502(g)(2) (id. ¶ 9), her motion does not explain how it could
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`apply to a deposition transcript where opposing attorneys were present, testimony was recorded,
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`etc. Ms. Brown’s motion invites the Court to determine whether work-product protection applies
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`to this deposition transcript (id. ¶ 12), and Samsung respectfully submits that the Court should
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`deny the motion and confirm that the deposition transcript should be produced.
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`Finally, that Ms. Leedy—who
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` based on
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`the divorce agreement (Ex. 3 at 17–18)—objects to production of the document does not warrant
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`granting Ms. Brown’s motion for a protective order. None of Ms. Brown, Ms. Leedy, or even Ms.
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`Brown on behalf of Ms. Leedy has met the applicable standard to justify a protective order.
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`Furthermore, documents from divorce proceedings are properly discoverable. See Bd. of Trustees
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`of the Michigan Laborers’ Pension Fund v. Rite Way Fence, Inc., No. 14-cv-14142, 2016 WL
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`6215982, at *4 (E.D. Mich. Oct. 25, 2016) (ordering production of deposition transcripts and
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`exhibits from prior divorce proceeding pursuant to subpoena to divorce attorney’s law firm). To
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`the extent that Ms. Brown is concerned about non-responsive information 4 mingled with
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`4 Samsung is not seeking unrelated information regarding, for example, child custody or the value
`of homes or automobiles.
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`-5-
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`Case 1:14-cv-01430-LPS Document 480 Filed 02/24/22 Page 7 of 9 PageID #: 27929
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`responsive information, Samsung is willing to meet and confer regarding possible ways to redact
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`or otherwise not produce non-responsive information while still providing Samsung the relevant
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`discovery.5 Ms. Leedy’s objection does not provide a basis to withhold production.
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`Deposition Subpoena.6 Ms. Brown’s motion should be denied. First, Ms. Brown has not
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`offered any support for her argument that the possibility that she may be asked questions that
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`would call for her to “disclose potentially confidential settlement negotiations” means a deposition
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`cannot proceed. Ex. 1 ¶ 17; see, e.g., U.S. v. Barrier Indus., Inc., No. 95-cv-9114 BSJ, 1997 WL
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`97842, at *2 (S.D.N.Y. Mar. 5, 1997) (“[Federal Rule of Evidence 408] does not apply to
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`discovery.”) (citations omitted); see also Fla. Stat. § 90.408. Second, while Samsung’s deposition
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`subpoena did not explicitly specify a location for a deposition, Samsung is willing to proceed with
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`a remote deposition via Zoom or other videoconferencing platform. Thus, Ms. Brown can attend
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`any deposition from her office, home, or wherever else is convenient. Ex. 1 ¶ 16 (requesting that
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`any deposition take place via Zoom). Finally, Ms. Brown’s complaint regarding the date of the
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`subpoena (Ex. 1 ¶ 14) is obviated by Samsung’s willingness to schedule any deposition at a
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`mutually agreeable date and time. And the subpoena allowed more than a month after service for
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`the deposition, which is more than a reasonable time to comply. See, e.g., Subair Sys., LLC v.
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`Precisionaire Sys., Inc., No. 08-cv-60570, 2008 WL 1914876, at *2 n.4 (S.D. Fla. Apr. 26, 2008)
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`(stating that even ten days to comply with a deposition subpoena could be deemed reasonable).
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`Even if the Court were to find that time insufficient, the solution would be to modify the time for
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`5 The parties have not previously discussed this possibility because of Ms. Brown’s position that
`the entire transcript is privileged and/or work product.
`6 To the extent the Court orders Ms. Brown to produce the deposition transcript, Samsung will
`review it and further evaluate whether a deposition is necessary. But given the limited information
`Ms. Brown has provided, Samsung must maintain its deposition subpoena.
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`-6-
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`

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`Case 1:14-cv-01430-LPS Document 480 Filed 02/24/22 Page 8 of 9 PageID #: 27930
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`the deposition. See Robocast, 2013 WL 1498666, at *1 (“[T]his Court can lengthen the time frame
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`of compliance.”).
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`Attorney’s Fees. Ms. Brown’s motion includes a conclusory request for attorney’s fees.
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`Ex. 1 ¶ 20. However, no attorney’s fees are warranted because Samsung took reasonable steps to
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`avoid imposing an undue burden or expense on Ms. Brown, and Ms. Brown has not shown
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`otherwise. Fed. R. Civ. P. 45(d)(1). As explained in this opposition, Samsung contends that Ms.
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`Brown’s motion lacks merit and should be denied. Ms. Brown’s motion largely relies on the
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`legally erroneous assertion that a deposition transcript is privileged or work product. Furthermore,
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`Samsung has been working with and remains willing to work with Ms. Brown to minimize any
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`burden, including by, for example, agreeing to a remote deposition that requires no travel. No
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`attorney’s fees should be awarded in these 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. Brown’s motion for a
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`protective order be denied.
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`-7-
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`Case 1:14-cv-01430-LPS Document 480 Filed 02/24/22 Page 9 of 9 PageID #: 27931
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`DATED: February 17, 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,
`
`
`YOUNG CONAWAY STARGATT &
`TAYLOR, LLP
`
`/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
`Attorneys for Defendants Samsung Electronics
`Co., Ltd., Samsung Semiconductor, Inc.,
`Samsung Electronics America, Inc., and
`Samsung Austin Semiconductor, LLC
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`-8-
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