Case 1:14-cv-01430-CJB Document 519-1 Filed 05/31/22 Page 1 of 30 PageID #: 28597
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`Case 1:14-cv-01430-CJB Document 519-1 Filed 05/31/22 Page 2 of 30 PageID #: 28598
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` IN THE UNITED STATES DISTRICT COURT
` IN AND FOR THE DISTRICT OF DELAWARE
` - - -
`
` ELM 3DS INNOVATIONS, LLC, )
` )
` Plaintiff, )
` )
` vs. ) Civil Action No.
` ) 14-1430-LPS-CJB
` SAMSUNG ELECTRONICS CO., )
` LTD., )
` )
` Defendants. )
`
` - - -
` Wilmington, Delaware
` Monday, May 9, 2022
` Discovery Dispute
` - - -
`BEFORE: HONORABLE CHRISTOPHER J. BURKE, Magistrate Judge
` - - -
`APPEARANCES:
`
` FARNAN LLP
` BY: MICHAEL J. FARNAN, ESQ.
` and
` BARTLIT BECK LLP
` BY: MATTHEW R. FORD, ESQ.
` (Chicago, Illinois)
` and
` BARTLIT BECK LLP
` BY: JOHN M. HUGHES, ESQ., and
`
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`Page 2
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`1 APPEARANCES: (Continued)
`2 NOSSON D. KNOBLOCH, ESQ.
` (Denver, Colorado)
`
`3
`
`4
`
` Counsel for Plaintiff
`
` YOUNG CONAWAY STARGATT & TAYLOR, LLP
`5 BY: ADAM W. POFF, ESQ.
`6 and
`7 PAUL HASTINGS LLP
` BY: YAR R. CHAIKOVSKY, ESQ.
`8 (Palo Alto, California)
`9 and
`10 PAUL HASTINGS LLP
` BY: JAMES V. RAZICK, ESQ.
`11 (Washington, D.C.)
`12 Counsel for Defendants
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
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`Page 4
`1 THE COURT: Okay. Thank you. All right.
`2 And, Counsel, let me just say a few things
`3 by way of introduction or process. First of all, it's
`4 good to be back with you all again, it's a been a while,
`5 and it's good to be with you this afternoon. Second, I
`6 just wanted to just remind the parties, in particular, I
`7 think, plaintiff's side here, that if we have further
`8 discovery disputes in the case, pursuant to my guidelines
`9 with regard to discovery disputes, which I always note in
`10 my orders sending out a discovery dispute teleconference,
`11 one of the things I ask, and it's particularly helpful
`12 for me, that if the parties are going to attach exhibits,
`13 it's really helpful if the parties will highlight in
`14 yellow the portions in the exhibits that they attached
`15 that the Court should particularly focus on. I'm not
`16 sure that the plaintiff's side did that here, and so I
`17 just want to remind them to do that going forward because
`18 it really assists the Court.
`19 Okay. With regard to the merits of the
`20 issue, I also -- before I get there, I just also do want
`21 to say I have another motion hearing starting at 2:00 so
`22 we have about an hour to discuss this issue. Hopefully,
`23 we won't need all of it.
`24 But with all that said, let me turn to
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`Page 3
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`Page 5
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`1 defendants' counsel because it's their motion. And I
`1 THE COURT: Let's go on the record, and,
`2 should say for the record that, here, the issue at play
`2 as we do, let me just state for the record that we're
`3 is that defendants are seeking an order that the
`3 here this afternoon by way of a teleconference to resolve
`4 plaintiff be required to produce certain information
`4 a discovery dispute in the matter of Elm 3DS Innovations,
`5 about any compensation that has or will go to Mr. Leedy,
`5 LLC, versus Samsung Electronics Co., Limited, et al.
`6 who is the now-deceased inventor here in the case for
`6 This is civil action number 14-1430-CJB in our court.
`7 plaintiff's side. It will go to his surviving family
`7 And before we go further, let me have
`8 members based on the results either of this litigation or
`8 counsel for each side identify themselves for the record.
`9 of other matters.
`9 We'll start first with counsel for the plaintiff's side,
`10 And so with that said, let me turn to
`10 and we'll begin there with Delaware counsel.
`11 defendants' counsel. And, Mr. Chaikovsky, you're going
`11 MR. FARNAN: Good afternoon, Your Honor.
`12 It's Michael Farnan. With me on the line are John
`12 to be taking this up for defendants' side?
`
`13 Hughes, Matt Ford, and Nosson Knobloch from Bartlit Beck.13 MR. CHAIKOVSKY: That's correct, Your
`14 And if it's acceptable to Your Honor, Mr. Hughes will
`14 Honor.
`15 make the presentation this morning -- I'm sorry -- this
`15 THE COURT: Okay. Why don't I jump in
`16 afternoon.
`16 with some questions that I had, and I'll certainly give
`17 THE COURT: Okay. Thank you. All right.
`17 you the chance to fill in and tell me anything else you
`18 We'll do the same for counsel for defendants' side and,
`18 want to tell me about the dispute as well. And I guess
`19 again, let's begin with Delaware counsel.
`19 maybe a good place to start is you say that discovery of
`20 MR. POFF: Yes. Good afternoon, Your
`20 this information is relevant to rebut any argument or
`21 Honor. It's Adam Poff from Young Conaway for Samsung.
`21 suggestion by Elm at trial to the jury that the lawsuit's
`22 And with me, from Paul Hastings, we have Yar Chaikovsky
`22 intended to benefit Mr. Leedy's surviving family members.
`23 and James Razick, and Mr. Chaikovsky will be presenting
`23 And we know that plaintiff is willing --
`24 on behalf of Samsung.
`24 not only willing to stipulate with you jointly that it
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`Page 6
`1 will not make that argument or suggestion explicitly at
`2 trial, but it's otherwise told me that, regardless of
`3 whether there's a joint stipulation, it's not going to do
`4 that.
`5 And so can you just further flush out your
`6 view in light of that, in light of the fact that we know
`7 plaintiff is not going to say at trial, Hey, jury, if you
`8 give the plaintiff money, it's all going to go to
`9 Mr. Leedy's children. Can you just kind of flush out
`10 your view about how it is that, nevertheless, there's a
`11 real concern here that that's what the jury is going to
`12 think and so the defendant needs to get a bunch of
`13 documents that will help it parse through exactly how
`14 much goes to who and when.
`15 MR. CHAIKOVSKY: Sure, Your Honor. Again,
`16 Mr. Chaikovsky from Paul Hastings.
`17 Your Honor, they did say that they will
`18 not make that explicit comment on page 2 of Docket 507.
`19 You know, the issue in this case, Your Honor, I think it
`20 comes through in the letter briefs, is that they have --
`21 Elm, the plaintiff, has one fact witness in this case,
`22 Ron Epstein. He is their only 30(b)(6) witness, their
`23 only 30(b)(1) witness. He's the only person who will be
`24 testifying on their behalf in this case as far as we
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`Page 7
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`1 know, absent expert witnesses.
`2 And, you know, I think what's pertinent to
`3 that commentary is what they said in the next paragraph
`4 of their letter brief 507 on page 2, Your Honor, in that
`5 they'll provide Mr. Leedy's background as a prolific
`6 inventor; they will say that he passed away; they will
`7 say that he's survived by his wife and two children.
`8 And, in fact, just stating that, this legacy humanizes
`9 the man, who dedicated his life's work to inventions. In
`10 contradistinction, we have Samsung, a Korean entity that
`11 is being accused of infringement.
`12 And, you know, with these facts, Your
`13 Honor, they don't need to make the explicit tie for a
`14 jury, right? It's ultimately when Ron Epstein, the sole
`15 person, you know -- they'll do it in an opening; they'll
`16 do it in close; they'll do it when Ron Epstein testifies.
`17 There may be other opportunities, which they'll avail
`18 themselves to say that this is about Glenn Leedy, the
`19 individual who's passed away.
`20 And this is very different than a case
`21 where we have the inventor alive, and then that
`22 compensation goes to the inventor. But the issue is we
`23 have a case against Samsung, a Korean entity, that --
`24 where they'll be talking about passed away, children, and
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`Page 8
`1 common sense and playing on the emotions of a jury will
`2 net, you know -- in the absence of, I guess, perhaps some
`3 explicit instruction otherwise, you know, the natural
`4 inclination for any, you know, common sense person is
`5 going to be the tie that the compensation's going to
`6 those children.
`7 And the issue we've had in this case is we
`8 know Ron Epstein's getting a good deal of compensation.
`9 There are obviously certain people getting compensation,
`10 which we're not entitled to in discovery, but at least
`11 from the discovery perspective -- we're not saying at
`12 trial. We're allowed to test the veracity of whether,
`13 you know -- if they're going to get up and tell that
`14 story, irrespective of the tie -- is any money actually
`15 flowing to the family here? And we've actually, from Elm
`16 themselves, not been able to obtain any of that
`17 information in this litigation.
`18 They're not willing to disclose whether --
`19 be it his ex-wife or his children or anybody other than
`20 Ron Epstein -- is actually getting any compensation
`21 relating to this litigation. This is unusual compared to
`22 any other case because, normally, we don't have a
`23 passed-away solo inventor where there is one fact
`24 witness, and perhaps a family member would testify. We
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`Page 9
`1 don't have that here. We have Ron Epstein testifying in
`2 this situation.
`3 THE COURT: Mr. Chaikovsky, can I jump in
`4 to ask you, I assume that if the plaintiff were to tell
`5 us on this call, Look, fine, if it's a matter of
`6 obviating this dispute, we don't have to say that
`7 Mr. Leedy had children or has children that survived him.
`8 If they said that, you know, we're not going to mention
`9 the fact that he has children, would that obviate the
`10 dispute?
`11 MR. CHAIKOVSKY: That's right, Your Honor.
`12 I think they've provided that option. The reasonable
`13 options are to say, There's Elm; we have patents; Samsung
`14 infringes. That's what's relevant. And going to what
`15 you just said, Your Honor, and then that obviates the
`16 dispute.
`17 On the other hand, if they're going to get
`18 up and say what they said in the letter, then we're
`19 entitled to this discovery. That's right, Your Honor.
`20 THE COURT: Okay. And then one point you
`21 made in your letter -- we know Mr. Epstein's role, and it
`22 sounds like we know he's going to be a witness at a
`23 trial. At one point in your letter, you said something
`24 like, We need to know the amount of compensation
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`1 Mr. Leedy's children will get because it's relevant to
`2 know how much compensation Mr. Epstein's going to get.
`3 But from what I could tell from the
`4 documents, it looks like there have been statements made
`5 that, in essence, Mr. Epstein's going to get a certain
`6 set percentage of any recovery, presumably after fees and
`7 costs, et cetera.
`8 I guess I wasn't sure how it is that
`9 getting information about exactly how much money the
`10 children are going to receive necessarily is going to
`11 shed much more light on how much money Mr. Epstein is
`12 going to receive. Because I understand the latter could
`13 be said to be relevant to bias, but I just couldn't see
`14 how the two were connected.
`15 MR. CHAIKOVSKY: Yeah. So I think that
`16 this last point, Your Honor, is a secondary argument.
`17 Obviously, if we were to discover information that -- and
`18 so it shouldn't be a primary focus, but if we were to
`19 discover information regarding payments and/or percentage
`20 or whatever, you know -- we're not looking for the
`21 accounting they're worried about. That's not what we're
`22 looking for. But that contradistincts, right, what
`23 Mr. Epstein's getting in light of what the family's
`24 getting or his ex-wife's getting. There's a chance, but
`
`1 But I will tell you who got involved right
`2 away was Mr. Epstein's first counsel, not additional
`3 counsel, Bartlit Beck, both in the form of -- actually,
`4 Nosson Knobloch's on the phone here. After, for example,
`5 Judge Hall granted our motion to compel on March 30th,
`6 Nosson Knobloch, on April 13th, actually instructed
`7 Ms. Lippman not to release any documents until she
`8 receives further advice.
`9 So we have Bartlit Beck, Mr. Epstein's
`10 attorney or Elm's attorney -- I'm not sure -- instructing
`11 Ms. Lippman, who's been ordered by Judge Hall to make a
`12 production -- to actually instructing her, again, two
`13 weeks after the order, not to produce anything. And
`14 these are kind of the troubling aspects we've been
`15 dealing with in dealing with Bartlit Beck.
`16 And now we've got Hilgers Grabin on this.
`17 And they try to say it's us trying to insinuate ourselves
`18 into the passed-away gentleman's personal life. No,
`19 it's -- Your Honor focused it at the outset. It's, Hey,
`20 if you want to tell the story of Elm and Elm's patents
`21 are infringed and Samsung infringes, and as for large dog
`22 eyes, we'll paint that story. But if they're going to
`23 tell the story about a passed away gentleman, and he's
`24 got a wife, and he's got surviving children, and there's
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`Page 11
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`1 that's a completely secondary argument. It's not a
`2 driver, you know.
`3 But you should know that Mr. Epstein is
`4 the, you know -- they keep pointing to he's the -- he was
`5 the trustee for the wife's trust. He is now the trustee
`6 for the children's trust. That's the position -- by the
`7 way, they're taking great standing that he's the trustee.
`8 And so we have this individual who's the only witness
`9 who's a trustee for the children's trust, and, you know,
`10 we're not able to get from them a lot of information.
`11 I think it's kind of -- if you focused on
`12 page 1 of their letter brief, you know, it's kind of
`13 interesting that they go into -- they say the executor of
`14 Mr. Leedy's estate. Well, guess who that happens to be,
`15 Your Honor. That's Mr. Epstein. He happens to be
`16 everything in this case. They didn't put his name in
`17 their brief on page 1 of 507, but that's who it is.
`18 And Mr. Epstein was forced to hire
`19 additional counsel. Well, I think that that's kind of
`20 funny, Your Honor. Yeah, sure. Hilgers Grabin was
`21 added, you know, pursuant to the kind of going back and
`22 forth with Ms. Lippman, who is one of the divorce
`23 attorneys that Judge Hall ordered documents to be
`24 produced.
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`Page 13
`1 a trust in their name, well, Your Honor, that opens the
`2 door. And, you know, they're trying to stop discovery
`3 into that for some reason, despite Mr. Epstein looking
`4 like he has control over everything.
`5 THE COURT: Okay. Mr. Chaikovsky, in your
`6 letter, and this is related, but at one point you said
`7 that you "Suspect that only a small portion of the
`8 litigation proceeds will actually go to the children."
`9 And I guess my question is -- and, obviously, in every
`10 case, there's going to be fees and costs, you know, every
`11 patent case, one can assume there's going to be fees and
`12 costs that a patentee, through the use of their counsel,
`13 will have to expend so, literally, you're not going to
`14 get every dollar.
`15 But beyond that, it sounded like from your
`16 letter you said you have some additional suspicions that
`17 you know about Mr. Epstein and the percentage he's
`18 supposed to get. You know about what Mr. Leedy's wife's
`19 percentage is supposed to be. But you have some
`20 suspicions, maybe beyond that, that the children aren't
`21 going to get the remainder.
`22 So I guess my question is: What
`23 suspicions? Like, what are you talking about? Why do
`24 you suspect that only a small portion of the litigation
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`1 proceeds will go to the children?
`2 MR. CHAIKOVSKY: So, at a broad point, and
`3 then I'll go to a narrower point, Your Honor, from a
`4 breadth perspective, the fact that Bartlit Beck, now with
`5 another firm, have just not produced this in the course
`6 of discovery when no one's saying it's going to be
`7 admitted at trial, but they've withheld this information
`8 and made us chase it since last fall -- really last
`9 summer, perhaps. It just seems like it should be a
`10 trivial item. This is not personal in any way,
`11 responsive to our Interrogatory Number 4, yet they're
`12 willing to tell us what Epstein's making.
`13 We understand the Court previously did not
`14 allow litigation funding discovery and law firm
`15 discovery, but, for example, even the ex-wife, we've had
`16 to get her percentage through public records, divorce,
`17 you know, files. You know, just the -- and that can be
`18 accurate or not accurate and subsequently amended. We
`19 don't know. There have been trusts. There have been
`20 other documents. There have been ratifications that
`21 Mr. Epstein's produced during this litigation. You know,
`22 it's been going on since 2014.
`23 And so it's really the absence of
`24 information that causes us to have somewhat, you know --
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`Page 15
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`1 really what's transpiring here, in addition to the fact
`2 that, you know -- at least what we're entitled to, which
`3 is Epstein's compensation and the family's compensation,
`4 seems like it may not add up to much, understanding
`5 there's an aspect that we may not be entitled to -- what
`6 the law firm and the litigation funders in this case are
`7 getting. But it's, like, let's just get confirmation.
`8 You know, if it's de minimis amount, then there
`9 shouldn't -- it may be relevant; it may not be relevant
`10 given what we've just discussed already this morning.
`11 On the other hand, if it's a large amount,
`12 they should have probably turned it over, and we probably
`13 wouldn't even have this hearing, Your Honor.
`14 THE COURT: I guess on the "it may not
`15 amount to much" part of your answer, the plaintiff, in
`16 their letter brief, they kind of suggest that you want
`17 every last document showing every last litigation expense
`18 that has been or will be expended in the case so you will
`19 know exactly how much money, at the end of the day, will
`20 end up going to the kids versus whatever Mr. Epstein gets
`21 versus whatever Mr. Leedy's ex-wife gets.
`22 Is that what you're really seeking? I
`23 mean, at its most narrow, I guess one could read your
`24 request as, Look, I just want to confirm. I know there's
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`Page 16
`1 going to be fees and costs. You don't have to go into
`2 exactly what those are going to be or how much they are.
`3 I know Mr. Epstein's going to get X percentage. I know
`4 Mr. Leedy's ex-wife, based on the documents we've seen,
`5 may be entitled to a certain amount, and then there's the
`6 children.
`7 Like, you could say you request, at the
`8 narrowest, just, Hey, is there anybody else except the
`9 children, or is that it? Like, do they get the rest?
`10 At the broadest, and it's what the
`11 plaintiff is suggesting, you could be asking for, Look, I
`12 want a detailed accounting of every last dollar that is
`13 going to flow to the children versus any other entity on
`14 Elm's side, and I want explicit detail about exactly how
`15 it is that those moneys have come to flow to them,
`16 including all kinds of agreements between counsel and
`17 plaintiff, et cetera.
`18 So I guess what I'm asking is: What
`19 exactly are you asking for here? Is it pretty narrow or
`20 fairly expansive or something in between?
`21 MR. CHAIKOVSKY: Your Honor, you hit the
`22 nail on the head. It's a narrow request. It's not the
`23 broad request. We never made the broad request. That's
`24 why you don't see any requests from us asking for that.
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`Page 17
`1 It's narrow. You know, it would be nice to have some
`2 specificity. Or like, Hey, Mr. Epstein gets effectively
`3 approximately -- it's a different formula, but, like, 10
`4 percent, right? Okay. So his ex-wife's going to get X
`5 percent, and the children are going to get X percent,
`6 understanding, as you said, that that would be subject to
`7 costs, et cetera. We don't need all that. It's kind of
`8 a rough ballpark to substantiate the veracity -- if they
`9 want to get up and tell that story -- and like you said,
`10 they have the option of just saying, We're Elm; we have
`11 these patents; they're being infringed.
`12 But they want to humanize the person, as
`13 they say in their letter, so we just want to gut check
`14 it, as you said, and that's a narrow request, we think.
`15 THE COURT: So, really, I think what
`16 you're saying, Mr. Chaikovsky, and tell me if this is
`17 wrong, is that, you know, by way of an additional
`18 supplemental answer to your Interrogatory Number 4, it
`19 could be, in your view, as simple as some additional
`20 narrative language that said, Look, after fees and costs,
`21 you've already been provided -- presented with an
`22 explanation of exactly the percentage of an award that
`23 Mr. Epstein will receive. And you know that, you know,
`24 we've already provided you with information about the
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`Page 18
`1 amount of money that Mr. Leedy's ex-wife would receive.
`2 And then, you know, the remainder of any moneys would go
`3 to the children or some explanation of the relative
`4 percentage based on what they've already said about
`5 Mr. Epstein and Mr. Leedy's ex-wife.
`6 That kind of a narrative answer, perhaps
`7 as narrow as that, is really all you're seeking. Is that
`8 what you're saying?
`9 MR. CHAIKOVSKY: Yeah. I think the one
`10 thing I'd just make sure, Your Honor -- you're right,
`11 absolutely -- is that we get numerical answers. And if
`12 they want to create a new numerical ballpark to, you
`13 know, like -- because, again, I don't want lit funding,
`14 and I don't want counsel. If they want to say, Here's
`15 100 percent of the whole, which 100 percent excludes lit
`16 funding and counsel, then, you know, break that down,
`17 right?
`18 You know, I'm just thinking of ways just
`19 like you are, Your Honor, in saying, State the remaining
`20 amount to the children. Well, if that remaining amount
`21 is 1 percent, I kind of would like to know that, is all
`22 I'm saying. So that's why -- I'm trying to put numbers
`23 on it, ultimately, but you're right, it's narrow enough,
`24 then, with their prose response to Rog 4. And I have no
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`1 saying that they'll succeed -- will get.
`2 And so that same kind of common sense
`3 argument that we've been talking about during the course
`4 of this hearing, you know, applies to those agreements
`5 where they'll say, Hey, you know, Micron paid
`6 $50 million, or whatever the number is. And, you know, I
`7 don't know what the number is off the top of my head; I'm
`8 making that number up. You know, hynix paid Y number of
`9 dollars. Yeah, same application, Your Honor.
`10 THE COURT: Okay. Mr. Chaikovsky,
`11 anything further before I turn to your colleagues on the
`12 other side?
`13 MR. CHAIKOVSKY: Nothing further, Your
`14 Honor.
`15 THE COURT: Okay. Thank you.
`16 Let me turn to plaintiff's counsel. And
`17 who's going to speak? Is it Mr. Hughes who's going to
`18 speak on behalf of the plaintiffs?
`19 MR. HUGHES: Yes, Judge Burke. John
`20 Hughes from Bartlit Beck for Elm. And, yeah, I'll be
`21 doing the talking for our side.
`22 And, Your Honor, you started with defense
`23 counsel with questions so I didn't want to jump in if you
`24 had questions for me, but I'm happy to jump in and
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`Page 19
`1 interest in knowing what the law firm's getting, Bartlit
`2 Beck, or the lit funder's getting. I'm trying to exclude
`3 that. That's right.
`4 THE COURT: Got it. Okay. And then the
`5 last question is: The other side noted that, very
`6 broadly, your request seems like it could include not
`7 only moneys that, you know -- information about moneys
`8 that Mr. Leedy's children would receive in this
`9 litigation, but information about percentages and money
`10 that they may have received from prior settlements or
`11 other litigations or any other instance where the money
`12 was provided in return for a license for the patent.
`13 Are you just focused, by way of your
`14 request for a supplement to Interrogatory Number 4, on
`15 this litigation?
`16 MR. CHAIKOVSKY: You know, I think our
`17 focus, Your Honor, is on this litigation. I think we're
`18 entitled to Elm, you know -- what Elm has for asserting
`19 these patents that they have against Micron and hynix.
`20 And those cases settled, Your Honor. You know, that will
`21 verify the veracity of kind of the story that they're
`22 telling. I mean, they're going to raise the licenses, I
`23 would say with almost certainty, right, at trial that
`24 Micron and hynix -- or at least attempt to. I'm not
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`1 address kind of the issues as I see it based on your
`2 back-and-forth with Samsung's counsel.
`3 THE COURT: Yeah. Mr. Hughes, let me try
`4 to start you off, and then, again, as with
`5 Mr. Chaikovsky, I'm certainly happy to have you fill in
`6 the blanks as well. But I think it seems like, for at
`7 least our purposes now, that plaintiff wants to -- and
`8 I'm not -- I know there may well be motions practice
`9 later, in limine motions about what can or can't be said
`10 about Mr. Leedy's children at trial. But for now, it
`11 seems at least, that the plaintiff's side wants to retain
`12 the ability to make reference to Mr. Leedy's children in
`13 the way that they do on page 2 of their letter. And so
`14 I'm just assuming that that is correct with my questions.
`15 And so from there, I guess I would ask,
`16 you know, one thing near the end of my discussion with
`17 Mr. Chaikovsky where I was saying, Look, in the
`18 plaintiff's letter, the plaintiff talks about all the
`19 information that defendants request would implicate, in
`20 terms of all the detail, particularly about, you know,
`21 the agreements between plaintiff and its counsel, how
`22 much fees have been expended, et cetera.
`23 And, ultimately, Mr. Chaikovsky said, No.
`24 Look, what we're really looking for is an additional
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`Case 1:14-cv-01430-CJB Document 519-1 Filed 05/31/22 Page 8 of 30 PageID #: 28604
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`Page 22
`1 supplemental answer to Interrogatory Number 4, which
`2 provides some basis to understand, you know, after fees
`3 and costs, what percentage of a recovery would
`4 Mr. Leedy's children be expected to receive in light of,
`5 or as compared to the other people who we know might also
`6 be entitled to recovery. If that's the request, if it's
`7 narrower like that, why would that be objectionable?
`8 MR. HUGHES: Well, let me answer that
`9 first, and then I want to get to Your Honor's proposal,
`10 which I've been considering, that may short circuit all
`11 of this, but in terms of a narrow brief supplemental
`12 answer to Interrogatory Number 4, we can do that. And
`13 all that will do is provide a narrative of information
`14 that are in documents that Samsung already has: the will,
`15 the various trust agreements, the divorce decree, and so
`16 forth.
`17 What we can't do, because it's numerically
`18 impossible, is give percentages of the recovery or do
`19 math because, you know, if it's $1, you know, then, of
`20 course, the kids are going to get nothing. If it's
`21 $100 million, you know, they'd get a sizable amount. And
`22 if it's somewhere in between, you know -- so the math
`23 just varies.
`24 We could, you know, supplement the
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`Page 24
`
`1 I would only add, Your Honor -- I was
`2 thinking about this more over the weekend -- is the jury
`3 is going to know, of course, that the reason they're not
`4 hearing, you know, live from Mr. Leedy is that he's sadly
`5 passed away, you know, before we could get to the trial.
`6 And I think we may want -- and we can work this out later
`7 in the case -- some kind of agreement with Samsung, or
`8 maybe even a statement from the Court that just explains,
`9 you know -- that clears up any confusion jurors might
`10 have about why are we having this lawsuit if the lone
`11 inventor has already passed away. But that's probably
`12 for another day.
`13 I think for today, we can agree to work
`14 something out along the lines of your proposal. I would
`15 assume that obviates the need to update Interrogatory 4,
`16 but if we have -- if you would like us to do, you know, a
`17 very high level along the lines that I just described, we
`18 could do that.
`19 And Samsung's counsel mentioned a number
`20 of other things that I don't think are relevant here,
`21 which I don't plan to address, other than we are going to
`22 in no way to insinuate that it should matter to any issue
`23 in the case, you know, that Samsung is a Korean company.
`24 And I don't think I heard Samsung suggest this, but any
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`Page 23
`1 interrogatory response to basically confirm what I think
`2 Samsung wants to understand, which is that after, you
`3 know, the fees, expenses, contingent interests and so
`4 forth are paid out, and whatever the ex-wife is entitled
`5 to, which they have that information already, the rest
`6 goes to Elm, which is in the trust. So -- but they
`7 already know all that from the documents that they have,
`8 but if they want us to write those four sentences down,
`9 we can.
`10 As to your proposal, I really think if
`11 this had been suggested to us in the meet and confer by
`12 Samsung, we probably could have avoided our time together
`13 today entirely. But we've never had the intention of
`14 making the case about the children or having some, you
`15 know, bizarre emotional plea in a patent case, and we're
`16 perfectly willing to say -- we've already said we're not
`17 going to argue they're going to get any money. And if we
`18 want to work something out, what -- we're not mentioning
`19 the children in the trial, that's fine.
`20 I mean, Samsung will have to be careful in
`21 terms of questions that Samsung asks Mr. Epstein, but
`22 he's a sophisticated person who would understand that
`23 kind of agreement. So I do think that we'd be willing to
`24 do that.
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`Page 25
`1 suggestion that Bartlit Beck has, you know, played fast
`2 and loose with the discovery rules here is certainly not
`3 appreciated. So I'll leave it at that.
`4 THE COURT: And, I guess, Mr. Hughes, I
`5 think your proposal about something that might be a
`6 little obvious is, you know -- one question I was going
`7 to ask you is: Why does the jury even need to know that
`8 Mr. Leedy has two surviving children?
`9 It sounds like what you're saying is:
`10 They may not need to. We may be able to agree with the
`11 defendants' side that we won't make any reference, absent
`12 the defendant opening the door to that at trial or
`13 something like that, but we won't make any reference to
`14 the fact that he has two