Case 1:14-cv-01430-CJB Document 506 Filed 04/27/22 Page 1 of 29 PageID #: 28195
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`ELM 3DS INNOVATIONS, LLC, a
`Delaware limited liability company,
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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, and
`SAMSUNG AUSTIN SEMICONDUCTOR,
`LLC, a Delaware limited liability company,
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`Plaintiff,
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`Defendants.
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`C.A. No. 14-1430-CJB
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`DEFENDANTS’ LETTER BRIEF IN SUPPORT OF THEIR REQUEST FOR THE
`PRODUCTION OF COMPENSATION INFORMATION FOR MR. GLENN LEEDY’S
`SURVIVING FAMILY MEMBERS AND MR. GLENN LEEDY’S WILL
`
`
`Dated: April 20, 2022
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`OF COUNSEL:
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`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
`
`
`
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`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
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`

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`Case 1:14-cv-01430-CJB Document 506 Filed 04/27/22 Page 2 of 29 PageID #: 28196
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`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
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`Elizabeth L. Brann
`PAUL HASTINGS LLP
`4747 Executive Drive, 12th Floor
`San Diego, CA 92121
`(858) 458-3000
`elizabethbrann@paulhastings.com
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`Soyoung Jung
`PAUL HASTINGS LLP
`515 S. Flower Street, 25th Floor
`Los Angeles, CA 90071
`(213) 683-6000
`soyoungjung@paulhastings.com
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`

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`Case 1:14-cv-01430-CJB Document 506 Filed 04/27/22 Page 3 of 29 PageID #: 28197
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`Dear Judge Burke:
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`Samsung submits this letter brief pursuant to the Court’s order (D.I. 495) in advance of
`the May 9, 2022 discovery dispute hearing.
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`First, Samsung respectfully requests that the Court order Plaintiff Elm 3DS Innovations,
`LLC (“Elm”) to produce information regarding how any damages award from this litigation
`would be distributed to the surviving family members of Mr. Glenn Leedy—the sole named
`inventor on the patents asserted in this case and Elm’s former owner. Elm wants to tell the jury
`that Mr. Leedy spent his life dedicated to developing the technology in the asserted patents, that
`he passed away while this case was pending, and that he is survived by his family. Even though
`Elm has offered to not specifically state to the jury that damages will flow to Mr. Leedy’s family,
`Elm wants the jury to assume that. In other words, once the jury hears about Mr. Leedy, his
`passing, and his family, any juror will reasonably assume that damages will go to those surviving
`family members. To rebut that assumption, Samsung should be able to explain to the jury what
`amount would actually go to the family, but Elm steadfastly refuses to produce the relevant
`information.
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`Samsung respectfully requests that the Court order Elm to produce information regarding
`how any proceeds from exploiting the asserted patents or related patents have gone to or will go
`to the surviving family members, including how any damages award from this litigation would
`be distributed to them. Such production should include any portion of Mr. Leedy’s will related
`to the disposition of any interest in Elm, or that is otherwise related to how compensation has
`flowed to or will flow to his surviving family members. This compensation information is
`necessary for Samsung to rebut any suggestion to the jury that if it awards damages to Elm, those
`damages will benefit Mr. Leedy’s surviving family members.
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`Second, Samsung requests that the Court order Elm to comply with Judge Hall’s prior
`order requiring Elm to produce all portions of Mr. Leedy’s will applicable to Ron Epstein’s
`authorization to act on behalf of Mr. Leedy’s estate. Elm has offered to produce certain portions
`showing
` but refuses to produce all applicable portions.
`BACKGROUND
`I.
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`Glenn Leedy’s Work, Family, and Passing. Prior to this lawsuit, Mr. Leedy co-owned
`with his then-wife Ms. Julia Leedy the company Elm Technology Corporation, which was the
`then-current assignee of the patents asserted in the present lawsuit. Ex. 1 (Excerpts of the Nov.
`18, 2012 Leedy Divorce Agreement) at 9. They had two children and divorced in 2012. Id. at 1.
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`Subsequently, the patents were assigned to Plaintiff Elm 3DS Innovations, LLC (“Elm”),
`and on November 21, 2014, Elm filed this case asserting numerous patents, all of which named
`Mr. Leedy as the sole inventor. D.I. 1 ¶¶ 1, 4, 13, 15. Mr. Leedy was also Elm’s president and
`sole owner. D.I. 1 ¶¶ 4, 28; Ex. 2 (Elm’s Response to Interrogatory 4) at 22. On July 16, 2017,
`Mr. Leedy passed away. Ex. 3 (
`) at 1.
`He is survived by Ms. Leedy and his two children. Ron Epstein—who currently purports to run
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`1
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`Case 1:14-cv-01430-CJB Document 506 Filed 04/27/22 Page 4 of 29 PageID #: 28198
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`this litigation on Elm’s behalf, Elm’s lone Rule 30(b)(6) witness, and the purported
`. Ex. 2 at 23.
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`Judge Hall’s Prior Order. During the course of this case, Samsung developed a
`potentially case-dispositive standing argument based on various transfers of Mr. Leedy’s
`ownership interest in Elm and previously sought discovery from Elm regarding the same in a
`dispute decided by Judge Hall. Specifically, Samsung’s prior discovery dispute letter sought the
`production of six bullet point categories of documents, including documents regarding “Epstein’s
`authorization to act . . . on behalf of Glenn Leedy’s estate (including any applicable portions of
`Leedy’s will).” Ex. 4 (D.I. 423) at 3 (emphasis added). During the hearing on this issue, Judge
`Hall ordered that “Elm produce these bullet point documents that are on Page 3 . . . .” Ex. 5
`(July 21, 2021 Hr’g Tr.) at 12:22-13:1.
`COMPENSATION INFORMATION FOR MR. LEEDY’S SURVIVING FAMILY
`II.
`MEMBERS IS RELEVANT AND SHOULD BE PRODUCED
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`Elm should be ordered to produce information regarding how any proceeds from
`exploiting the asserted patents or related patents have flowed to or will flow to Mr. Leedy’s
`surviving family members, including as a result of any damages award in this present lawsuit.
`Specifically, Elm should be ordered to supplement its response to Interrogatory 4 to provide this
`information and also produce any portion of Mr. Leedy’s will related to the disposition of any
`interest in Elm,1 or that is otherwise related to how compensation has flowed to or will flow to
`his surviving family members.2 This information is relevant to rebut any argument or suggestion
`by Elm to the jury that this lawsuit is intended to benefit Mr. Leedy’s surviving family members.
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`As an initial matter, both Judge Hall and Elm have recognized that the compensation
`flowing to Ron Epstein as a result of these patents or this litigation is relevant and should be
`produced. See, e.g., Ex. 9 (Oct. 30, 2020 Hr’g Tr.) at 17:18-24 (“[Judge Hall]: So Elm, they’re
`allowed to ask Mr. Epstein if he is going to get a payout of the litigation, if he is involved in the
`litigation funding. I mean that is clearly relevant to bias; right? [Elm]: Yes. And to be clear,
`we have already produced any documents showing compensation Mr. Epstein would get in this
`case or because of this case.”); Ex. 5 at 45:18-46:6 (“[Samsung]: Because Mr. Epstein is a
`witness for Elm, we already discussed this with Your Honor on a previous call, but his
`compensation is relevant by a termination clause. [Judge Hall]: I agree with that principle
`completely. . . . But anything that has to do with his compensation, that, to me, sound like it
`could be relevant to bias.”); Ex. 2 at 23-24. The compensation flowing to Mr. Leedy’s family
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`1 During the afternoon this letter brief was due, Elm offered to produce “that portion of the will
`showing disposition of the assets in Mr. Leedy’s will.” Ex. 6 at 1. But given the late hour of this
`offer, Samsung maintained this portion of its request; Samsung will inform the Court if the
`parties are able to resolve this portion of their dispute.
`2 Elm has never suggested that Interrogatory 4 does not call for this information or that the will is
`not responsive to a request for production. If Elm belatedly makes this argument, requests for
`production 37, 40, 73, 82-84, 86-87, and 93 encompass this information. Exs. 7-8.
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`2
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`Case 1:14-cv-01430-CJB Document 506 Filed 04/27/22 Page 5 of 29 PageID #: 28199
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`members should be treated the same. That compensation information—including Mr. Leedy’s
`will—may also bear on Mr. Epstein’s compensation. For example, if the surviving family
`members are receiving little compensation, that suggests Mr. Epstein may be receiving more.
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`Furthermore, Elm’s complaint in this action spends myriad paragraphs discussing Mr.
`Leedy and his role with Elm, as well as detailing his purported work in inventing the subject
`matter claimed in the asserted patents. D.I. 1 ¶¶ 15-32. At trial, Elm will discuss Mr. Leedy and
`his work and background—including his family.3 While Elm offered during a meet and confer
`to consider a narrow stipulation that Elm would not make the specific argument that monetary
`damages will go to Mr. Leedy’s ex-wife and his children, Elm reserved the right to present Mr.
`Leedy’s story and background, which would include his family. Once the jury hears Mr.
`Leedy’s story, including about his family and passing, the jury will reasonably assume that any
`compensation that would have gone to him from exploiting these patents or from a damages
`award in this case will now go to his surviving family members. Elm wants the jury to make that
`assumption. But Samsung suspects that only a small portion of any proceeds will actually go to
`Ms. Leedy4 or Mr. Leedy’s surviving children, and Samsung is entitled to this information to
`show the jury that this suit is not for the benefit of Mr. Leedy’s family.
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`While Elm also argues that this information (including Mr. Leedy’s will) is private, that
`is not a valid basis to withhold production. There is a protective order in this action, and Elm
`can designate such information pursuant to that protective order, if appropriate.
`III. ELM MUST COMPLY WITH JUDGE HALL’S PRIOR ORDER
`
`As discussed above, Judge Hall previously ordered Elm to produce all portions of Mr.
`Leedy’s will applicable to Mr. Epstein’s authorization to act on behalf of Mr. Leedy’s estate.
`See Section I, supra. But Elm is only willing to produce the affirmative “
`
`.” Ex. 6 at 1.
`, Elm intends to redact
`While Elm has represented that
`information on successor executors. Id. So Samsung will not be able to determine whether a
`successor possibly
`. Additionally, Elm has not confirmed that it will
`produce any other portion that bears on any other person or entity having authority to administer,
`dispose of, or otherwise govern Mr. Leedy’s estate (or any portion thereof), or confirmed there
`are no other portions. Id. These would also be applicable portions of Mr. Leedy’s will and
`subject to Judge Hall’s prior order. Elm should be ordered to produce them.
`
`*
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`*
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`*
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`Samsung respectfully requests that the Court grant Samsung’s requested relief and issue
`the attached proposed order (Ex. 10) requiring Elm to produce this relevant information.
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`3 Samsung reserves all rights to move in limine regarding Elm’s trial presentation.
`4 The public 2012 divorce agreement suggests
` will go to Ms. Leedy.
`Ex. 1 at 17-18. But Samsung does not know whether there have been any interim agreements or
`if this information is otherwise accurate and complete.
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`3
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`Case 1:14-cv-01430-CJB Document 506 Filed 04/27/22 Page 6 of 29 PageID #: 28200
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`Respectfully Submitted,
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`/s/ Adam W. Poff
`Adam W. Poff (No. 3990)
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`cc: All Counsel of Record (via Email)
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`4
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`Case 1:14-cv-01430-CJB Document 506 Filed 04/27/22 Page 7 of 29 PageID #: 28201
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`Exhibits 1-3
`REDACTED IN THEIR
`ENTIRETY
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`Case 1:14-cv-01430-CJB Document 506 Filed 04/27/22 Page 8 of 29 PageID #: 28202
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`Exhibit 4
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`Case 1:14-cv-01430-CJB Document 506 Filed 04/27/22 Page 9 of 29 PageID #: 28203
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 14-1430-LPS
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`LETTER TO THE HONORABLE JENNIFER L. HALL FROM
`PILAR G. KRAMAN REGARDING SAMSUNG DEFENDANTS’ DISCOVERY LETTER
`IN ADVANCE OF JULY 21, 2021, DISCOVERY HEARING (D.I. 422)
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`
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`ELM 3DS INNOVATIONS, LLC, a
`Delaware limited liability company,
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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, and
`SAMSUNG AUSTIN SEMICONDUCTOR,
`LLC, a Delaware limited liability company,
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`Plaintiff,
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`Defendants.
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`Dated: July 12, 2021
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`Case 1:14-cv-01430-CJB Document 506 Filed 04/27/22 Page 10 of 29 PageID #: 28204
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`Dear Magistrate Judge Hall:
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`Elm has withheld a number of documents related to critical issues in this litigation,
`including its settlement agreement with SK Hynix, documents relating to its standing to maintain
`this litigation, documents for which Elm has provided insufficient privilege claims, and
`relevance-based redactions to Elm’s engagement agreement with Epicenter Law, P.C. Elm also
`refuses to extend the deposition of its lone corporate designee on more than 100 topics to any
`more than two days, despite taking many days of depositions of Samsung’s corporate designees.
`Elm must provide the requested discovery.
`I.
`Elm Must Produce Its Settlement Agreement with SK Hynix Because of Its
`Relevance to Damages
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`Elm refuses to produce its recent settlement agreement with SK Hynix, which was
`previously a defendant in a parallel patent infringement case brought by Elm. The Federal
`Circuit and district courts “have routinely recognized that license agreements relating to the
`patents-in-suit, and entered into in connection with settlement, are discoverable.” See, e.g.,
`Wyeth v. Orgenus Pharma Inc., C.A. No. 09-3235 FLW, 2010 WL 4117157, at *4 (D.N.J. Oct.
`19, 2010) (collecting cases). That is because “prior settlements can be relevant to determining
`damages,” so long as such settlements are “sufficiently comparable.” Elbit Sys. Land & C4I Ltd.
`v. Hughes Network Sys., LLC, 927 F.3d 1292, 1299 (Fed. Cir. 2019); see also Intellectual
`Ventures I LLC v. Symantec Corp., C.A. No. 10-1067-LPS, 2016 WL 937220, at *4 (D. Del.
`Mar. 10, 2016) (allowing reliance on settlement agreements to prove damages). The patent
`infringement case Elm filed against SK Hynix involved the same patents at issue here. See C.A.
`No. 14-1432-LPS, D.I. No. 288 at 1–2. Moreover, the full extent of the settlement agreement’s
`comparability cannot be determined without its production. The settlement agreement is
`responsive to at least Defendants’ Request for Production Nos. 24, 26, 50, 53, 54, 56, and 57. See
`Exhibit A. Because Elm’s settlement agreement with SK Hynix is responsive and relevant, Elm
`must produce it.
`II.
`Elm Must Produce Documents Relevant to Its Standing to Maintain This Litigation
`
` Ron Epstein, Elm’s
`purported manager, acknowledged the legitimacy of the issues Samsung raised with Elm’s
`standing to pursue this litigation. See Exhibit B. Yet Elm has refused to produce documents
`related to those standing issues, including documents related to the transfer of ownership
`interests in Elm from the Glenn Leedy Administrative Trust (“the Trust”) to the individual trusts
`set up for Glenn Leedy’s children (“Child Trusts”). Those documents implicate a threshold issue
`in this litigation and must be produced.
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`Two separate transactions undermine Elm’s standing to maintain this lawsuit. First,
`Glenn Leedy, the sole owner and member of Elm, “transferred all of his ownership interests in
`. . . [Elm] into the Glenn Leedy Revocable Trust” on July 1, 2016. Exhibit C at 25. Second,
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`1
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`Case 1:14-cv-01430-CJB Document 506 Filed 04/27/22 Page 11 of 29 PageID #: 28205
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`In both transactions, based on the information Elm has provided to date, it appears that
`the Elm ownership interests may have been transferred without a corresponding action to make
`the transferee(s) members of Elm. Under applicable Delaware law, that would have left Elm
`without any members. 6 Del. C. § 18-702(b)(1), (3). It would also have automatically triggered
`Elm’s dissolution. § 18-801(a)(4) (effective Aug. 1, 2015 to July 31, 2016); see also Perry v.
`Neupert, C.A. No. 2017-0290-JTL, 2019 WL 719000, at *32 (Del. Ch. Feb. 15, 2019) (“The
`transfer of a sole member’s interest in a single-member LLC with an LLC agreement that lacked
`an automatic admission clause thus would result in the dissolution of the LLC.”).
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`With respect to the first transaction, Elm contends that the instrument that created the
`Trust constitutes the necessary “written consent” for the Trust for become the lone member of
`Elm following Leedy’s transfer of his ownership interests. See § 18-704(a) (effective Aug. 2,
`2010 to July 31, 2016); Exhibit D. But that instrument
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`As for the second transaction,
`Elm has refused to provide any similar documentation that would allow Samsung to evaluate its
`position.
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`Only certain categories of persons may prosecute a lawsuit on behalf of a dissolved
`Delaware LLC. § 18-803(b). Epstein does not fall within any of those categories. See § 18-803(a)
`(applicable to LLCs whose certificate of formation was filed and effective prior to July 31,
`2015). Therefore, Elm under the purported control of Epstein cannot prosecute this lawsuit
`because it lacks standing under Delaware law. See Fed. R. Civ. P. 17(b); see also Paradise
`Creations, Inc. v. UV Sales, Inc., 315 F.3d 1304, 1308 (Fed. Cir. 2003) (evaluating a dissolved
`corporation’s standing under the law of the state in which it was formed). Without knowing who
`has the authority to act on Elm’s behalf with respect to this lawsuit, Samsung cannot be sure that
`any resolution reached in this matter would be binding on Elm.
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`Samsung disputes Epstein’s ability to retroactively cure deficiencies with Leedy’s transfer to the
`Trust. Elm must produce any further documents in its possession, custody, or control regarding
`Leedy’s intentions with respect to the Trust and his transfer of ownership interests in Elm
`thereto. Such documents at least include any communications between Leedy, Epstein, and any
`other persons involved with creating the Trust.
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`The transfer of Elm ownership interests from the Trust to the Child Trusts raises many of
`the same potential issues as Leedy’s previous transfer of such interests to the Trust. If Epstein in
`his purported role as trustee of the Trust did not affirmatively admit the Child Trusts as members
`at the time of the transfer from the Trust, Elm could have been have been left without any
`members and become dissolved (to the extent it was not already dissolved from Leedy’s transfer
`to the Trust). Elm’s concern that this occurred appears to have inspired
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`.
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`Despite the implications for Elm’s standing to maintain this litigation, Elm has refused to
`produce any discovery related to the Child Trusts. Elm should be required to produce any
`documents related to the Child Trusts that could affect Elm’s standing, including documents
`regarding the following matters:
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` The formation of the Child Trusts, including any certification, declaration,
`instrument, or agreement for each of the Child Trusts;
` The transfer of interests in Elm to the Child Trusts;
` The admission of the Child Trusts as members of Elm;
` Any other terms, conditions, requirements, or intentions for the Child Trusts;
` Epstein’s authorization to act on behalf of the Child Trusts and/or on behalf of Glenn
`Leedy’s estate (including any applicable portions of Leedy’s will);
` Epstein’s authorization from the Child Trusts’ to act on Elm’s behalf.
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`III. Elm Has Asserted Improper and Unsubstantiated Claims of Privilege
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`Elm has refused to produce a large number of documents based on deficient privilege
`claims. First, many of the entries in Elm’s privilege log contain insufficient information to assess
`Elm’s claim of privilege. See Exhibit E; Exhibit F at 1–2. Elm has the burden of providing such
`information. Fed. R. Civ. P. 26(b)(5)(A). Exhibit F identifies the privilege log entries lacking
`sufficient information. Id. at 1–2. The deficiencies with those entries include failing to identify
`the sender/recipient of particular communications, failing to identify the author of particular
`documents, and failing to provide a sufficient privilege description.
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`Second, Elm has claimed privilege over many documents either partially or entirely
`directed at business or other non-legal matters. See Exhibit E; Exhibit F at 3–4. Even for
`documents and communications involving an attorney, “[w]here a lawyer provides non-legal
`business advice, the communication is not privileged.” Wachtel v. Health Net, Inc., 482 F.3d
`225, 231 (3d Cir. 2007).
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`3
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`Case 1:14-cv-01430-CJB Document 506 Filed 04/27/22 Page 13 of 29 PageID #: 28207
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`Elm contends that
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`established an attorney-client
`relationship that protects communications on or after that date. However, even if Elm’s position
`were correct, it does not align with Elm’s treatment of its privilege log entries. Elm’s position
`means that
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`ould not be privileged. Yet Elm refuses to produce documents corresponding to
`certain such entries on its privilege log, including at least
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`Elm should be required to produce those
` communications.
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`, Elm has waived
`As for
`attorney-client privilege with respect to at least some of those documents by choosing to produce
`a cherry-picked set of such communications in response to Samsung’s complaints about Elm’s
`privilege log. In particular
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` Even if such communications
`were originally privileged, Elm cannot produce a self-serving subset of such documents while
`withholding the remainder. That results in waiver of privilege over all other such documents
`involving the same subject matter. See Fed. R. Evid. 502(a); GTECH Corp. v. Scientific Games
`Int’l, Inc., C.A. No. 04-138-JJF, 2005 WL 8170737, at * 2 (D. Del. Nov. 22, 2005) (“[I]f a
`partial waiver would be unfair to the party’s adversary, the privilege will be waived as to all
`communications or materials on the same subject.”). Elm should be required to produce
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`that
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`relate to the same subject matter as what Elm has already produced.
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`Even if Elm had not waived privilege over
`, many of those and other entries on Elm’s privilege log
`constitute non-privileged business or other non-legal documents and communications. See
`Exhibit F at 3–4. To the extent that Elm contends that certain of those documents contain both
`business and legal advice, those documents must be produced if their “primary purpose” is to
`“solicit or render advice on non-legal matters.” Hercules, Inc. v. Exxon Corp., 434 F. Supp. 136,
`147 (D. Del. 1977). Because Elm’s business is patent licensing, it appears that the documents
`identified in Exhibit F primarily relate to business concerns. Immersion Corp. v. HTC Corp.,
`C.A. No. 12-259-RGA, 2014 WL 3948021, at *2 (D. Del. Aug. 7, 2014) (citing Wachtel v.
`Health Net, Inc., 482 F.3d 225, 231 (3d Cir. 2007)) (ordering plaintiff to produce several
`documents related to patent licensing because “[plaintiff’s] business is the licensing of patents”).
`Elm should produce those documents.
`IV.
`Elm Cannot Make Relevance-Based Redactions to the
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`Elm has produced its
` in redacted form. See Exhibit K.
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`4
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` Elm produced the
` cannot be privileged. See
`redacted version after Samsung explained that
`Montgomery County v. Microvote Corp., 175 F.3d 296, 304 (3rd Cir. 1999) (“The attorney-client
`privilege does not shield fee arrangements.”). Elm contends that its redactions to
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`are based on relevance, but relevance-based redactions are impermissible. Delaware
`Display Grp. LLC v. Lenovo Grp. Ltd., Lenovo Holding Co., C.A. No. 13-2108-RGA, 2016 WL
`720977, at *6 (D. Del. Feb. 23, 2016) (“[A] party may not redact information that it unilaterally
`deems sensitive, embarrassing, or irrelevant.”). Elm must produce an unredacted version of
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`Elm Cannot Limit to Two Days the Deposition of Its Sole Corporate Designee
`Covering More Than 100 Topics
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`V.
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`Elm has designated Ron Epstein as its sole Rule 30(b)(6) designee yet refuses to make
`him available unless Samsung agrees to limit his deposition to two days. Federal Rule of Civil
`Procedure 30(d)(1) provides that “[t]he court must allow additional time [for deposition]
`consistent with Rule 26(b)(1) and (2) if needed to fairly examine the deponent.” See, e.g., In re
`Intel Corp. Microprocessor Antitrust Litig., C.A. No. 05-441-JJF, 2008 WL 5377979, at *2 (D.
`Del. Dec. 18, 2008) (allowing “2 or 3 days of deposition time for each of the involved witnesses”
`in a case involving “eight years of particularized knowledge by” those witnesses).
`
` Before Leedy (initially Elm’s sole party witness) passed away, the parties agreed that the
`defendants could depose him for 30 hours. Epstein now stands in Leedy’s shoes (albeit
`imperfectly) as Elm’s sole party witness. Indeed, Elm has designated him to cover more than 100
`deposition topics. See D.I. Nos. 209, 336. Given the breadth of patents, issues, and facts at issue
`in this litigation, Samsung cannot cover those deposition topics in only two days of deposition.
`For reference, Elm has deposed 14 corporate designees from Samsung over a total of 30 hours,
`after adjusting for translation. Elm cannot reasonably demand that Samsung cover a similar
`breadth of topics with Epstein in less than half of the time. Therefore, Samsung requests that Elm
`make Epstein available for four days of deposition.
`VI. Conclusion
`
`For the above reasons, Samsung respectfully requests that the Court order Elm to: (1)
`produce its settlement agreement with SK Hynix; (2) produce all documents related to its
`standing to maintain this litigation, including documents regarding the Child Trusts; (3) produce
`all documents on its privilege log with insufficient and/or improper claims of privilege; (4)
`
`produce an unredacted version of
`; and (5) make Ron Epstein, Elm’s sole corporate designee, available for four days of
`deposition.
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`5
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`

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`Case 1:14-cv-01430-CJB Document 506 Filed 04/27/22 Page 15 of 29 PageID #: 28209
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`cc:
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`Respectfully submitted,
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`Pilar G. Kraman (No. 5199)
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`Counsel of Record (via E-Filing and E-Mail)
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`6
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`Case 1:14-cv-01430-CJB Document 506 Filed 04/27/22 Page 16 of 29 PageID #: 28210
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`Exhibit 5
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`Case 1:14-cv-01430-CJB Document 506 Filed 04/27/22 Page 17 of 29 PageID #: 28211
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`1
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`y o u t h a t I ' v e r e a d b o t h t h e l e t t e r s , I ' v e
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`l o o k e d a t t h e a t t a c h m e n t s t o t h e e x t e n t a
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`f a v o r p o i n t e d o u t i n t h e l e t t e r s . A n d I
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`u n d e r s t a n d t h a t a t l e a s t o n e o f t h e s e
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`t u r n i t o v e r t o S a m s u n g t o s t a r t u s o f f
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`w i t h t h e f i r s t i s s u e . A n d w e ' l l g o i s s u e
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`b y i s s u e . G o a h e a d , c o u n s e l .
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`M S . B R A N N : T h a n k y o u , Y o u r
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`H o n o r . T h e s e t t l e m e n t a g r e e m e n t i s s u e w a s
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`r e s o l v e d . T h e p a r t i e s h a d m e t a n d
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`c o n f e r r e d a b o u t t h a t a n u m b e r o f t i m e s .
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`E l m d i d a g r e e t o p r o d u c e t h a t a g r e e m e n t .
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`S o I t h i n k w e c a n m o v e o n t o
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`t h e s t a n d i n g r e l a t e d d o c u m e n t s . F o r t h o s e
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`d o c u m e n t s , E l m ' s o p p o s i t i o n f o c u s e s o n t h e
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` IN THE UNITED STATES DISTRICT COURT
` FOR THE DISTRICT OF DELAWARE
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`ELM 3DS INNOVATIONS, LLC, )
` )
` Plaintiff, )
` ) Civil Action No.
`v. ) 14-1430 LPS
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`SAMSUNG ELECTRONICS CO., )
`LTD., et al., )
` )
` Defendants. )
`
` United States District Court
` 844 King Street
` Wilmington, Delaware
` Teleconference
` July 21, 2021
` 3:00 p.m.
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`w r o n g i s s u e . S a m s u n g h a s i d e n t i f i e d a
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`07/22/2021 10:06:31 PM
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