`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF ARKANSAS
`MARSHALL DIVISION
`
`C.A. NO.
`2:20- cv- 00283- JRG
`[LEAD CASE]
`
`C.A. NO.
`2:20- cv- 00284- JRG
`
`C.A. NO.
`2:20- cv- 00285- JRG§
`[MEMBER CASES]
`
`)))))))))))))
`
`JAPAN DISPLAY INC.,
`PANASONIC LIQUID CRYSTAL
`DISPLAY CO., LTD.,
`
`Plaintiffs,
`
`VS.
`
`TIANMA MICROELECTRONICS
`CO. LTD.,
`
`Defendant.
`
`
`
`REPORTER'S RECORD
`
`TRANSCRIPT OF MOTION TO COMPEL AND STATUS CONFERENCE
`
`BEFORE THE HONORABLE RODNEY GILSTRAP
`
`October 26, 2021; 1: 33 p.m.
`
`MARSHALL, TEXAS
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`
`Proceedings recorded in realtime via machine shorthand.
`________________________________________________________
`
`Dana Hayden, CCR, RMR, CRR, CRC
`Federal Official Court Reporter
`35 East Mountain Street
`Fayetteville, Arkansas 72701
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`Page 1 of 23
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`Tianma Exhibit 1019
`Tianma v. JDI, et al.
`Trial IPR2021-01060
`
`
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`2
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`FOR THE PLAINTIFFS:
`
`APPEARANCES
`
`Mr. Erik Chiles Shallman
`Vinson & Elkins LLP
`2801 Via Fortuna, Suite 100
`Austin, TX 78746
`(512) 542- 8400
`Eshallman@ velaw. com
`
`Mr. Eric Joseph Klein
`Vinson & Elkins LLP
`2001 Ross Avenue, Suite 3900
`Dallas, TX 75201- 2975
`(214) 220- 7782
`Eklein@ velaw. com
`
`FOR THE DEFENDANT:
`
`
`
`Mr. Eric Hugh Findlay
`Findlay Craft PC
`102 N College Avenue, Suite 900
`Tyler, TX 75702
`(903) 534- 1100
`Efindlay@ findlaycraft. com
`
`Messrs. Aidan C Skoyles and James R. Barney
`Finnegan Henderson Farabow Garret Dunner, LLP
`901 New York Avenue, NW
`Washington, DC 20001
`(202) 408- 4000
`Aidan. skoyles@ finnegan. com
`James. barney@ finnegan. com
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`***** PROCEEDINGS *****
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`THE COURT: This is the time set for hearing
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`before the Court on a motion for a motion to compel
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`production by Japan Display, the Plaintiff in the Japan
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`Display, et al. Versus Tianma Microelectronics Company.
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`The Court has also scheduled at this time a
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`status conference on this matter. This includes lead
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`case number 2: 20-CV-2 84 and member cases 2 84 and 2 85.
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`Let me ask for announcements and then we' ll
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`proceed with a recital of what I understand is an
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`agreement of the parties resolving that motion to
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`compel, which appears as Document 137 in this case.
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`What says the Plaintiffs, Japan Display,
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`et al. ?
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`MR. KLEIN: Good afternoon, your Honor. Eric
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`Klein and Erik Shallman on behalf of Japan, Inc. and
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`Japan Display Company ready to proceed.
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`THE COURT: What's the announcement from
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`Defendant Tianma?
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`MR. FINDLAY: Good afternoon, your Honor. Eric
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`Findlay for Tianma Electronics; along with me, Mr. James
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`Barney, Mr. Aidan Skoyles. We' re ready to proceed,
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`Judge.
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`THE COURT: All right. Thank you, Mr. Findlay.
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`Counsel, I' ve been advised by my staff, who's
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`been in contact with you earlier today that the motion
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`to compel, Document 1 37, has been resolved by agreement
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`of the parties. I'd like to get a short recitation of
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`the substance of that resolution on the record.
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`I understand that particularly perhaps with the
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`Plaintiff there may be a need to confirm this with
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`clients in Japan, and we can certainly do it subject to
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`that confirmation within a relatively short period of
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`time. But let's put on the record, if you will, where
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`you are with regard to the motion to compel and the
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`particulars of the resolution that's been reached.
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`I don't care whether Plaintiff makes the
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`presentation and Defendant agrees or Defendant makes the
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`presentation and Plaintiff agrees or you do it jointly,
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`but I just want to get the matter on the record.
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`MR. KLEIN: Eric Klein for Plaintiffs, your
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`Honor. The parties have reached a resolution. It's
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`actually Tianma that needs to get confirmation for that.
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`THE COURT: Okay. I knew somebody did.
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`MR. KLEIN: Okay.
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`THE COURT: Why don't you go to the podium,
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`Mr. Klein, please.
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`MR. KLEIN: Thank you, your Honor.
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`The two issues that were brought up during the
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`motion -- for the motion to compel were resolved. We
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`5
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`believe we have a resolution for those.
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`The first issue regarding whether documents
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`related to Tianma Japan would be sought in this case,
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`and the parties have made an agreement, and this is the
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`one that is subject to approval from Tianma Japan, which
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`we believe won't be an issue and it will be forthcoming
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`sometime in the next day or two.
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`The parties reached an agreement where the
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`plaintiffs will not pursue discovery from Tianma Japan
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`in the current case. In exchange, Tianma Japan and
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`Tianma Microelectronics will agree not to argue in any
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`subsequent litigation, but the Plaintiffs' litigation of
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`the above- captioned case include any decisions that the
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`Plaintiffs made during that litigation will create
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`estoppel or preclusion regarding any claims against
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`Tianma Japan.
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`THE COURT: All right. Let me ask defense
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`counsel to confirm the accuracy of that recitation.
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`MR. BARNEY: That's accurate, your Honor. And
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`just to be precise, we do have confirmation from our
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`client, Tianma Microelectronics, as to that agreement;
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`we just need to confirm with Tianma Japan, which we will
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`do tomorrow morning, and we do not expect any problems
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`there.
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`THE COURT: All right. Let me ask you to do
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`this, Mr. Barney. Once you' ve confirmed this matter
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`with Tianma Japan, I' ll ask you not later than the end
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`of business tomorrow to file a notice with the Court
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`confirming on the record that that has been confirmed
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`with Tianma Japan.
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`MR. BARNEY: Yes, your Honor.
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`THE COURT: All right. Now, is there anything
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`else related to the motion to compel that we need to
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`take up?
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`MR. KLEIN: One more issue that we have an
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`agreement on. There's a second issue in the motion to
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`compel and that was the Plaintiffs' request for Tianma
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`to produce customer agreements and technical
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`documents --
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`THE COURT: Yes, I remember.
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`MR. KLEIN: -- documents by the customers, and
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`the parties have reached an agreement. Tianma will
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`stipulate as follows for the above- captioned cases only.
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`From time to time, Tianma Microelectronics communicates
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`technical parameters and/ or specifications of its LCD
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`panel products with customers, and from time to time
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`Tianma Microelectronics also enters into agreements with
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`customers of its LCD panel products; and to the best of
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`Tianma Micro's knowledge, such communications and
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`agreements do not identify the geographic location of
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`downstream products that incorporate Tianma
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`Microelectronics' LCD panel products.
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`Tianma Microelectronics does not track the
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`geographic destination of its customers' products
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`incorporating Tianma Microelectronics' LCD panel
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`products. In fact, Tianma Microelectronics has no way
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`to track such information because its customers
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`generally do not share information about where their
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`downstream products may be offered for sale or sold,
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`including whether they may be imported into or sold into
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`the United States.
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`And to the best of Tianma
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`Micro knowledge/ information regarding the geographic
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`destination of downstream products that incorporate
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`Tianma Microelectronics' LCD panel products should be in
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`the hands of Tianma Microelectronics' customers and also
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`potentially with their downstream customers.
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`THE COURT: All right. Let me also ask the
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`Defendant to confirm the accuracy of that recital.
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`MR. BARNEY: That recital was accurate, your
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`Honor.
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`THE COURT: All right. Does that complete the
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`issues raised in the motion to compel?
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`MR. KLEIN: Your Honor.
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`MR. BARNEY: Yes, your Honor.
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`THE COURT: All right. Thank you, Counsel.
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`Now, while I have the benefit of having you
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`here, we are going to transition to a status conference,
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`and as counsel are aware, the Court has previously
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`expressed some substantive concern about the size and
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`the scope of the claims and defenses in this case and
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`has previously indicated a view that the case would
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`benefit from and is in need of substantial narrowing
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`going forward.
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`With that in mind, the Court has already
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`partially granted a request to amend the docket control
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`order, and I' ve extended the deadline to complete expert
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`discovery from October 25th of this year through
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`November 8 th of this year. I'm aware that the request
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`was an extension beyond November the 8 th. That's why
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`this was a grant in part as a part of Document 1 66 being
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`the Court's order.
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`I have before me an opposed motion to amend the
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`docket control order, and I am more than willing to
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`discuss with the parties where we stand as of now, what
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`you can anticipate going forward as to further narrowing
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`what is a workable time frame to adjust as necessary the
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`parameters of the docket control order to accommodate
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`that narrowing.
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`I am not inviting a ongoing process where we
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`are coming back to the Court on a regular basis to
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`adjust and tweak and extend various dates. I'm
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`certainly open to doing what we need to to get this case
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`postured so that it can be tried as it's now set, but
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`I'd like to get -- I know there has been -- pursuant to
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`the Court's orders and the action of the parties, I know
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`there's been substantial narrowing from where you were
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`to where you are.
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`I'd like a indication from you as to what you
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`anticipate realistically from where you are to where you
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`will be with regard to further narrowing of both the
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`asserted claims and the prior art references or other
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`invalidity defenses and how that might inform the Court
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`as to what is a reasonable and fair modification of one
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`or more parameters or deadlines set forth within the
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`current version of the docket control order.
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`So let me start with Plaintiff Japan Display
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`and ask you to give me a report, if you will, of where
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`you are and what you anticipate, where you will be going
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`forward as we proceed with the inevitable process of
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`narrowing the case moving toward trial.
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`Go ahead, Mr. Klein.
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`MR. KLEIN: Thank you, your Honor.
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`We'd like to make one note for the current
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`deadline to complete expert discovery, as your Honor
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`stated, was reset to November the 8 th. There's one
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`deposition that the parties have agreed on. It's the
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`only date that would work for both parties, but it's
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`currently scheduled for November the 16th and 17th.
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`It's a single deposition, but it will cover two days.
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`So we would --
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`THE COURT: Who is this the deposition of?
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`MR. KLEIN: Of one of Defendant's technical
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`experts, Mr. Fred Schubert.
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`THE COURT: Can you spell his last name for me?
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`MR. KLEIN: S-c-h-u-b-e-r-t.
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`THE COURT: And where is Mr. Schubert located.
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`MR. KLEIN: I believe he's in California.
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`MR. SKOYLES: I believe so. Not certain of
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`that, though.
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`MR. KLEIN: He's in the United States. The
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`depositions are all being done remotely. I apologize,
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`your Honor. I believe he's in California.
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`THE COURT: And I believe what you' re telling,
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`Mr. Klein, is you'd like a caveat or carveout to that
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`November 8 th deadline for this one single purpose to
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`permit Mr. Schubert's deposition on November 16th and/ or
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`17th?
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`MR. KLEIN: Yes, your Honor.
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`THE COURT: Okay.
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`Do Defendants join in that request? It's your
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`witness.
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`MR. BARNEY: Yes, your Honor. We have no
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`objection to that.
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`THE COURT: I' ll afford the parties that
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`latitude in light of my order extending the deadline for
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`expert discovery until November the 8 th, and I' ll permit
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`the single deposition as specified in the record of
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`Mr. Schubert to be taken outside that deadline over
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`November 16th and/ or the 17th.
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`All right. What else, Mr. Klein?
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`MR. KLEIN: Your Honor, with respect to
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`narrowing the case, the Plaintiff doesn't anticipate
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`doing further narrowing. It would certainly be informed
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`by the depositions continuing over the next several
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`weeks and then finishing on the 17th with Mr. Schubert.
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`So I --
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`THE COURT: Part of the problem here, and it
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`strikes me, having looked at your motions, it strikes me
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`as we' re kind of, to some degree, confronted with the
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`"chicken or the egg" situation.
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`On the one hand, everybody would like to have
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`the discovery of the witnesses as to all existing claims
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`and defenses and then have that as a resource to
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`determine what to keep and what to jettison.
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`On the other hand, nobody wants to go through
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`the time, expense, and delay of doing that for claims
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`and defenses that are not going to survive and the
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`parties would materially benefit by saving that time and
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`expense.
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`I think both are valid observations. I'm not
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`sure all one way or all the other way is the right
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`approach. You' re down to -- Plaintiff's down to, am I
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`right, 35 claims at present?
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`MR. KLEIN: Yes, your Honor.
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`THE COURT: What -- and, I mean, you started of
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`some astronomical number of, like, 135?
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`MR. KLEIN: That's correct.
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`THE COURT: What can you tell me about your
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`anticipated future narrowing going forward, both
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`time- wise and number of claims- wise?
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`MR. KLEIN: We spoke with Defendants this
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`morning and we' ve -- they floated the idea of having
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`that narrowing done sometime before the pretrial
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`disclosures are due on November the 24th, and we are
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`going to have further discussions about that, whether
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`that timing makes sense.
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`As far as the number of claims in -- moving
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`forward, we realize that 35 claims is still too many
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`claims to take to trial, but depending on --
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`THE COURT: No question about that.
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`MR. KLEIN: No question.
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`We' re about halfway through the depositions of
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`the experts, the technical experts. I think we might,
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`after today, be halfway through. So I think continuing
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`with those now that we' ve already made it halfway
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`through makes the most sense and then we will be in a
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`position to further narrow the case.
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`As far as the number of claims and patents to
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`narrow to, it's a little difficult because there are
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`families of patents that have more claims than others.
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`So it could be that the number of claims and patents, we
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`can't come up with that number at this time because it
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`just depends on which patents we choose.
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`There are some patents where there's only one
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`claim. There are a couple patents with only two claims
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`that are asserted, and if we choose those, there will be
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`substantially less claims, but there is at least one
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`patent where there are seven claims being asserted. So
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`it's difficult to come up with a number at this time
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`until we have the benefit of finishing discovery.
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`THE COURT: Let me ask you this, if you can
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`answer it for me. Are you anticipating, under any
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`scenario at present, extensions that would necessitate
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`altering the current schedule for Daubert motions or
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`motions to strike?
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`MR. KLEIN: No, your Honor.
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`THE COURT: Okay. I assume both sides know
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`that when this case gets to trial, at least if it's
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`before me, it will be a timed trial with a finite amount
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`of time provided to each side to put on your
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`case- in- chief both from the Plaintiff and the Defendant;
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`and I'm sure you' re all well aware of what's a general
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`rule of thumb for what allocation of time is common in
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`this court, and I think that's probably a pretty good
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`guide for you to carry forward as you move toward
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`further narrowing from both sides of the case.
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`MR. KLEIN: Yes, your Honor.
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`THE COURT: Mr. Barney, what can you add from
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`the Defendant's standpoint on this topic?
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`MR. BARNEY: Your Honor, we agree that the case
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`definitely needs to be narrowed, and we did talk with
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`the Plaintiffs today about a narrowing schedule. We had
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`proposed November 22nd, which we think is fair because
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`that will allow them to complete the depositions.
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`We asked them to narrow at that time to no more
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`than five patents and 20 claims, which to me, you know,
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`in my opinion is still a big case but, you know, that
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`would be a substantial narrowing, and we' re awaiting
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`their response to that.
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`THE COURT: What about your side of the coin on
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`invalidating references or combinations?
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`MR. BARNEY: Yes, your Honor, and we would
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`propose a number, something along the lines of five
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`combinations per patent and, of course, that's something
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`that we can also negotiate with the plaintiffs. So we
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`would be willing to do a commensurate narrowing of our
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`case at that time.
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`THE COURT: Do I hear correctly that Mr. Klein
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`said November 24th and you said November 22nd?
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`MR. BARNEY: Well, I --
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`THE COURT: Or were those different?
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`MR. BARNEY: Two different things. I think he
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`referred to November 24th being the due date for the
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`pretrial submission and we just had backed up and said
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`let's do our narrowing two days before that so that when
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`we file that on November 24th, it will be with the
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`benefit of both parties' narrowing.
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`THE COURT: Well, that sounds like it's close
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`enough to me that capable lawyers on both sides of this
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`case ought to be able to find some common ground.
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`MR. BARNEY: Yes, your Honor.
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`THE COURT: To the extent I said this earlier,
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`I misspoke. I don't think I have a current motion to
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`modify the docket control before me now in light of the
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`earlier order which I mentioned which partially narrowed
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`the expert discovery deadline or cutoff, but it's clear
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`to me something along that line is coming.
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`What can both sides tell me? I' ve heard
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`general recitals about " We are continuing to talk," but
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`what can you tell me in a more specific manner that will
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`give me some assurance that if I give you a little more
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`latitude, you' ll come back to me with something workable
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`and agreed to; or is this something that, at the end of
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`the day, I'm going to see hands thrown up and then I'm
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`going to be asked to take over and do it for you?
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`I really don't want that to happen, and I want
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`to facilitate the earlier possibility to the fullest
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`extent I can without getting us so far down the road
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`that we are in a bind.
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`MR. BARNEY: Understood, your Honor. One thing
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`that I would point out is although the Plaintiffs have
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`narrowed to 35 claims, they are still asserting 13
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`patents. The number of patents, you know, is --
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`separate and apart from the number of claims, the number
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`of patents is also a concern for us on the defense side
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`because each patent is its own unique document with its
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`own unique priority date, so it comes with its own
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`unique set of prior art arguments and references and so
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`getting the number of patents down is just as important
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`from our perspective as getting the number of claims
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`down.
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`THE COURT: I think that's a very legitimate
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`observation.
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`MR. BARNEY: But other than that, I can't tell
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`you much more other than we are definitely willing to
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`work with the plaintiff to choose an appropriate date to
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`really get this case down to what's really going to be
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`tried to the jury because that drives jury instructions,
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`it drives motions in limine, it drives a lot of things
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`that are going to have to happen after that.
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`THE COURT: Well, as much as each of you don't
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`want to waste a lot of time and effort for things that
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`are not going to actually be tried, if you multiply that
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`by ten, that's how the Court feels about that same
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`topic. We all benefit when we get down to the real deal
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`earlier rather than later.
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`I think you- all understand the Court has a
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`legitimate and continuing concern about the process in
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`this case. I'm encouraged by what I'm hearing from you,
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`but you know, the old adage is the proof's in the
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`pudding.
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`What I'd like to do is charge you to continue
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`to work toward this goal with continuing efforts to meet
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`and confer. Whether you do it in person or
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`telephonically or by email makes no difference to me. I
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`know there are a lot of other moving parts going on at
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`the same time.
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`What's a reasonable amount of time for you- all
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`to work on this and get back to me with some kind of a
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`joint notice or report as to where you stand?
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`MR. BARNEY: I would propose maybe a week from
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`today to work that out, but I' ll look to hear from my
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`colleague.
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`THE COURT: What's your view, Mr. Klein?
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`MR. KLEIN: I guess, your Honor, for us to just
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`continue the discussion or to actually choose -- the
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`deadline to actually choose the --
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`THE COURT: I'm looking to put a date on the
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`calendar that says you will tell me where you are then,
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`and if it is, " We resolved these issues and here's where
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`we are," or it's, " We haven't resolved them; perhaps
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`we' ve narrowed them, but we still have work to do," you
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`know, I think this is a process where the Court and the
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`parties would benefit from the Court having some
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`continuing oversight, not just, "I' ll see you when it's
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`time for pretrial."
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`So I don't want it to be such a short period of
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`time that you really aren't able to make any real
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`progress because it's my hope you will make substantive
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`Page 18 of 23
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`progress. I don't want it to be so long that we wasted
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`time and if you come back to me without a resolution, we
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`can't get that time back.
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`So that's what prompted my question: From your
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`perspective, what's a realistic amount of time for
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`you- all to make some progress and if we' re lucky resolve
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`most of what's outstanding; if not, narrow it
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`substantially and at least get back to me with where you
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`are so that I can engage whether I need to inject myself
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`into the process because it's not happening in an
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`adequate time frame, or I don't have to inject myself
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`because it is happening in an adequate way. That's what
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`I'm asking for.
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`MR. KLEIN: Yes, your Honor. Thank you.
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`I think that if we could -- I think a week
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`might be too short but if we could have an update maybe
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`by the middle, the second week of December. All of the
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`depositions except Dr. Schubert will be finished and I
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`think that will give us all some time to take a look at
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`not only infringement side but they will be able to have
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`an idea about their narrowing on invalidity as well.
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`That will give us a chance to have a more meaningful
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`conversation.
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`THE COURT: Well, as a practical observation,
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`today's the 26th of October. I'm to try a patent
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`Page 19 of 23
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`infringement case next week, and I will probably not be
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`in a position to pay very much attention to anything
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`else.
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`The week after that is the week of the 8 th. It
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`would seem to me, based on at least what I know about my
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`situation, that I will be in a position to focus
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`substantively on a report sometime during that week.
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`How does 5 o' clock on Wednesday, the 10th of
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`November strike you, Counsel?
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`MR. BARNEY: That's fine with defense.
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`THE COURT: Mr. Klein, I see your head going up
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`and down.
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`MR. KLEIN: Yes, your Honor, fine for the
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`Plaintiffs.
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`THE COURT: I' ll direct an order that counsel
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`for the parties present to the Court by way of filing on
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`the docket a joint notice by before 5: 00 on Wednesday,
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`November the 10th, telling me where you are from today,
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`what you resolved, what remains outstanding, and suggest
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`to the extent either/ or both of you think it's
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`appropriate where the Court could help facilitate
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`further movement.
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`MR. KLEIN: Thank you, your Honor.
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`THE COURT: All right. Those are the main
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`topics I wanted to raise with Counsel as a part of this
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`meet- and- confer -- excuse me, as a part of this status
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`conference.
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`Let me ask you- all: Are there issues or
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`problems or things you' re aware of, whether it was a
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`part of this motion to compel or whether it relates to
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`narrowing of the case that you need to either raise with
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`me now or give me a heads- up is coming around the
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`corner?
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`Are there other things that we could all
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`benefit by, by discussing them with the benefit of
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`everybody present in the room? If not, I will let you
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`go; but if there are, I'd hate to give up this
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`opportunity.
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`Plaintiff aware of anything?
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`MR. KLEIN: Nothing from Plaintiffs, your
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`Honor.
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`THE COURT: How about Defendant?
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`MR. BARNEY: Could I have one second, your
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`Honor, to confer?
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`THE COURT: Certainly.
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`Nothing from Defendant, your Honor.
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`THE COURT: All right. Then that will complete
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`the matter set for today, including the motion to
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`compel, which has been resolved by the parties'
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`admirable meet- and- confer efforts subject to slight
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`confirmation which we' ll document on the record in the
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`next day or so, and this will also complete the status
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`conference conducted by the Court with the parties as
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`also set for the day.
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`Those being the matters set for hearing before
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`the Court today, that will complete today's hearing.
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`Thank you for your presence and your active work
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`together, Counsel. I hope we can build on this going
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`forward.
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`You are excused and the Court stands in recess.
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`(Proceedings adjourned at 2:00 p.m.)
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`Page 22 of 23
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`CERTIFICATE OF DEPUTY OFFICIAL REPORTER
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`I, Dana Hayden, Federal Deputy Realtime Court
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`Reporter, in and for the United States District Court
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`for the Eastern District of Texas, do hereby certify
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`that pursuant to Section 753, Title 28, United States
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`Code that the foregoing is a true and correct transcript
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`of the stenographically reported proceedings held in the
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`above- entitled matter and that the transcript page
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`format is in conformance with the regulations of the
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`Judicial Conference of the United States.
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`Dated this 28th of October, 2021.
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`____________________________________
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`Dana Hayden, CCR, RMR, CRR, CRC
`Federal Deputy Court Reporter
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