Case 2:17-cv-00140-WCB-RSP Document 110 Filed 06/28/18 Page 1 of 7 PageID #: 3070
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`CYWEE GROUP LTD.,
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`Plaintiff
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`v.
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`SAMSUNG ELECTRONICS CO. LTD.
`AND SAMSUNG ELECTRONICS
`AMERICA, INC.,
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`Defendants.
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`NO. 2:17-CV-00140-WCB-RSP
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`DEFENDANTS SAMSUNG ELECTRONICS CO., LTD. AND SAMSUNG
`ELECTRONICS AMERICA, INC.’S MOTION FOR PROTECTIVE ORDER
`REGARDING THE DEPOSITION OF DONG JIN KOH
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`Defendants Samsung Electronics Co., Ltd. (“SEC”) and Samsung Electronics America, Inc.
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`(“SEA”) (collectively, “Samsung”) respectfully move, pursuant to Federal Rules of Civil Procedure
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`26 and 45, for a protective order prohibiting Plaintiff CyWee Group Ltd. (“CyWee”) from taking the
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`deposition of Dong Jin Koh.
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`Mr. Koh is a President and a Chief Executive Officer (“CEO”) of SEC. Given Mr. Koh’s
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`responsibilities, CyWee’s proposed deposition would impose an undue burden on Mr. Koh and a
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`significant disruption to SEC’s business.
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`CyWee has not shown any basis for imposing this burden. Instead, CyWee argues that Mr.
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`Koh’s deposition is necessary because Mr. Koh previously served as the Head of SEC’s Mobile
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`Communications Business and therefore purportedly has information regarding Samsung’s decision
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`to add sensor fusion technology to the accused products and Samsung’s licensing decisions as of the
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`alleged date of first infringement. Contrary to CyWee’s representations, Mr. Koh has no unique
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`personal knowledge of these facts that could not be obtained through other means. Indeed, CyWee
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`already requested detailed information regarding Samsung’s decision to add sensor fusion
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`Case 2:17-cv-00140-WCB-RSP Document 110 Filed 06/28/18 Page 2 of 7 PageID #: 3071
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`technology to the accused products in an interrogatory it served a day before noticing Mr. Koh’s
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`deposition. CyWee also noticed a 30(b)(6) witness on this topic in April, and Samsung has
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`designated a witness on that topic. Similarly, CyWee’s argument that it needs to depose Mr. Koh on
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`Samsung’s licensing-related decisions is equally flawed. Samsung is already making three senior
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`members of its licensing team available for deposition. CyWee has not shown why it cannot obtain
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`the information it seeks from these less burdensome means. Samsung thus respectfully requests a
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`protective order against CyWee’s premature and overreaching deposition request.
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`I.
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`BACKGROUND
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`On April 20, 2018, CyWee served Plaintiff’s Notice of Deposition of Samsung Electronics
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`Co., Ltd., identifying sixty-five topics. Declaration of Elizabeth L. Brann (“Brann Decl.”) ¶ 2.
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`Topic No. 4 of CyWee’s notice requests that Samsung designate a witness to testify on “all
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`facts Related To the earliest decision to add Motion Sensor Fusion Technology to SEC products,
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`including the Accused Instrumentalities.” Id. On June 18th, Samsung designated six witnesses to
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`testify regarding various topics in CyWee’s 30(b)(6) notice, including Topic No. 4. Id. ¶ 8. CyWee
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`has not yet taken any of these depositions.
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`On June 13, CyWee served its Second Set of Interrogatories to Samsung. Interrogatory No.
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`32 requests that Samsung:
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`Describe in detail the process(es) through which Samsung made the
`decision to include Sensor Fusion Technology in the Accused
`Products. Among other things, Your answer shall (a) identify the top
`three individuals responsible for the final decision to include Sensor
`Fusion Technology in each Accused Product; (b) state the date(s) the
`decision(s) to include Sensor Fusion Technology in each Accused
`Product were made; (c) describe the reasons for including Sensor
`Fusion Technology in each Accused Product; (d) describe how the
`decision to include Sensor Fusion Technology in each Accused
`Product was communicated among Samsung’s personnel; (e) identify
`the person(s) who communicated the decision to include Sensor
`Fusion Technology in each Accused Product within Samsung; (f)
`identify the person(s) within Samsung to whom the decision to
`include Sensor Fusion Technology in the Accused Products was first
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`Case 2:17-cv-00140-WCB-RSP Document 110 Filed 06/28/18 Page 3 of 7 PageID #: 3072
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`communicated; and (g) identify any Documents related to or
`referencing Samsung’s decisions
`to
`include Sensor Fusion
`Technology in the Accused Products.
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`Id. ¶¶ 3–4. Samsung’s responses are due on July 13, 2018.
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`On June 14, CyWee noticed the deposition of Dong Jin Koh. Id. ¶ 5. Mr. Koh is a President
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`and CEO of SEC. Id. ¶ 6. CyWee asserted that its proposed deposition was justified because of Mr.
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`Koh’s position from 2007–2011 as the Head of SEC’s Mobile Communications Business and
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`because CyWee needed information on “events that occurred during that period”—specifically the
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`decision-making process used by Samsung to add sensor fusion technology to the accused products.
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`Id. ¶ 7.
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`On June 20, Samsung informed CyWee that its deposition request was both unreasonably
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`burdensome and duplicative given CyWee’s 30(b)(6) notice and interrogatory on the same subject.
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`Id. ¶ 10. In an effort to compromise with CyWee, Samsung offered to reconsider CyWee’s request to
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`depose Mr. Koh after CyWee finished deposing Samsung’s 30(b)(6) witness on this topic. Id.
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`On June 20, CyWee refused Samsung’s compromise, stating that the issue of Mr. Koh’s
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`deposition would need to be “teed up for the Court” on a hotline call. Id. ¶ 11. On June 22,
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`Samsung responded that CyWee still had not provided any reason why the information it was
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`attempting to obtain from Mr. Koh could not be obtained using less burdensome means and that a
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`hotline call was premature. In an attempt to resolve the dispute without Court intervention,
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`Samsung requested dates and times when CyWee’s counsel would be available to meet and confer.
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`Id. ¶ 12.
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`On June 25, CyWee declined to provide its availability, raising for the first time that it
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`intended to ask Mr. Koh about Samsung’s licensing-related decisions. Rather than provide additional
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`information in a meet and confer, CyWee requested that Samsung file a Motion for Protective Order
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`with the Court. Id. ¶ 13. On the same day, in an effort to comply with the Local Rules of this
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`-3-
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`District, Samsung requested that CyWee confirm that it was refusing to meet and confer on the issue
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`of Mr. Koh’s deposition. Id. ¶ 14. CyWee responded that the parties had “conferenced already
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`twice” and that Samsung should move for a protective order. Id. ¶ 15. Accordingly, Samsung was
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`left with no recourse but to file the instant motion.
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`II.
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`ARGUMENT
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`CyWee has not provided and cannot provide any sufficient basis why it needs to depose
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`Dong Jin Koh, one of SEC’s Presidents and CEOs. A party seeking to depose a high-level corporate
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`executive must demonstrate that the executive has unique, personal knowledge which cannot be
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`obtained using less intrusive means. See Motion Games, LLC v. Nintendo Co., No. 6:12-cv-878-JDL,
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`2015 U.S. Dist. LEXIS 179771, at *11 (E.D. Tex. Mar. 18, 2015); see also Gauthier v. Union Pac. R.R.
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`Co., No. 1:07-CV-12 (TH/KFG), 2008 U.S. Dist. LEXIS 47199, at *10–11 (E.D. Tex. June 18,
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`2008); Comput. Acceleration Corp. v. Microsoft Corp., No. 9:06-CV-140, 2007 U.S. Dist. LEXIS 103806,
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`at *3 (E.D. Tex. June 15, 2007).
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`In Motion Games, the court denied plaintiff’s motion to compel the deposition of Nintendo’s
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`CEO when there was no indication that the CEO had unique, personal knowledge of the
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`information sought by plaintiff. 2015 U.S. Dist. LEXIS 179771, at *11. Centrally, the court found
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`that plaintiff had not even attempted to seek the information through a less burdensome means of
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`discovery, such as a Rule 30(b)(6) deposition. Id.
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`Similarly, in Computer Acceleration, the court granted Microsoft’s motion for a protective order
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`quashing plaintiff’s deposition of Bill Gates where there was no indication that Mr. Gates had
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`personal, unique knowledge of the facts. 2007 U.S. Dist. LEXIS 103806, at *3–4. Again, the court
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`noted plaintiff had not shown that the information requested from Mr. Gates could not be obtained
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`from lower-level Microsoft employees, especially given that plaintiff had already noticed
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`comprehensive 30(b)(6) depositions on Microsoft. Id. at *4.
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`-4-
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`Case 2:17-cv-00140-WCB-RSP Document 110 Filed 06/28/18 Page 5 of 7 PageID #: 3074
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`Here, the only purportedly unique information CyWee argues is in Mr. Koh’s possession is
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`Samsung’s decision to add sensor fusion technology to the accused products and licensing-related
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`decisions. CyWee concludes that Mr. Koh has this information by virtue of his former position as
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`the Head of SEC’s Mobile Communications Business. However, CyWee has not shown and cannot
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`show why this information would be unique to Mr. Koh. In fact, Mr. Koh was not directly involved
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`in the decision to add sensor fusion technology to the accused products in this case. Declaration of
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`Seongsig Kang (“Kang Decl.”) ¶ 6. Any information Mr. Koh has regarding the decision to add
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`sensor fusion technology would have been provided to him by others. Id. ¶ 7.
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`In addition, like the plaintiffs in Motion Games and Computer Acceleration, CyWee also cannot
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`establish that the information it seeks cannot be obtained through other, less burdensome means.
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`CyWee already requested the information regarding Samsung’s decision to add sensor fusion
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`technology to the accused products through an interrogatory and included the topic in its 30(b)(6)
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`notice to Samsung. Samsung has not yet had the opportunity to respond to CyWee’s interrogatory
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`on this topic. Moreover, CyWee has not yet taken any 30(b)(6) depositions of Samsung.
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`Similarly, CyWee’s argument that it needs to depose Mr. Koh on Samsung’s licensing-related
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`decisions is equally flawed. Samsung has already offered the depositions of three senior members of
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`its licensing team: Mr. Injung Lee, a Senior Vice President and the Head of Licensing; Mr. Indong
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`Kang, a Principal Legal Counsel; and Mr. Jong Pil Hong, a Vice President. CyWee has not
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`demonstrated and cannot demonstrate it needs to ask Samsung’s President and CEO the same
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`questions that it could ask these witnesses.
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`As such, it is premature for CyWee to claim this information cannot be obtained through
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`other means. CyWee has provided no reason why—in addition to its 30(b)(6) deposition of
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`Samsung, interrogatory, and the depositions of three senior members of Samsung’s licensing team—
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`it must also depose Mr. Koh to obtain the same information. At the very least, CyWee’s Notice of
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`Case 2:17-cv-00140-WCB-RSP Document 110 Filed 06/28/18 Page 6 of 7 PageID #: 3075
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`Deposition should be quashed without prejudice to CyWee re-noticing Mr. Koh if CyWee’s
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`deposition of Samsung’s 30(b)(6) witness and licensing-team members indicates Mr. Koh does
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`possess some unique, relevant information that cannot otherwise be obtained. This is in fact the
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`same compromise that Samsung offered to CyWee, which CyWee rejected.
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`III. CONCLUSION
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`CyWee cannot show why it is necessary or reasonable to depose Mr. Koh, a President and
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`CEO at SEC. At the very least, CyWee’s Notice of Deposition is premature. CyWee cannot
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`plausibly claim it cannot obtain the information it seeks through less burdensome means—including
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`the interrogatory it has already propounded, the 30(b)(6) notice it has already served, and the
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`depositions of the senior members of Samsung’s licensing team. For these reasons, Samsung
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`respectfully requests that the Court issue a protective order preventing Mr. Koh’s deposition.
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`DATED: June 28, 2018
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`Respectfully submitted,
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`By: /s/ Christopher W. Kennerly
`Christopher W. Kennerly
`TX Bar No. 00795077
`chriskennerly@paulhastings.com
`PAUL HASTINGS LLP
`1117 S. California Ave.
`Palo Alto, California 94304
`Telephone: (650) 320-1800
`Facsimile:
`(650) 320-1900
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`Elizabeth L. Brann (pro hac vice)
`CA Bar No. 222873
`elizabethbrann@paulhastings.com
`Bob Chen (pro hac vice)
`CA Bar No. 273098
`bobchen@paulhastings.com
`PAUL HASTINGS LLP
`4747 Executive Drive, 12th Floor
`San Diego, California 92121
`Telephone: (858) 458-3000
`Facsimile:
`(858) 458-3005
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`-6-
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`Case 2:17-cv-00140-WCB-RSP Document 110 Filed 06/28/18 Page 7 of 7 PageID #: 3076
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`Melissa R. Smith
`TX Bar No. 24001351
`melissa@gillamsmithlaw.com
`GILLAM & SMITH, LLP
`303 S. Washington Ave.
`Marshall, TX 75670
`Telephone: (903) 934-8450
`Facsimile: (903) 934-9257
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`Attorneys for Defendants
`SAMSUNG ELECTRONICS CO. LTD AND
`SAMSUNG ELECTRONICS AMERICA, INC.
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`CERTIFICATE OF SERVICE
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`I hereby certify that a true and correct copy of the foregoing document was filed
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`electronically in compliance with Local Rule CV-5 on June 28, 2018. As of this date, all counsel of
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`record had consented to electronic service and are being served with a copy of this document
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`through the Court’s CM/ECF system under Local Rule CV-5(a)(3)(A).
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` /s/ Christopher W. Kennerly
`Christopher W. Kennerly
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`CERTIFICATE OF CONFERENCE
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`In accordance with Local Rule CV-7(h), I hereby certify that counsel for Defendant,
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`Elizabeth Brann, requested to meet and confer with counsel for Plaintiff by telephone twice on June
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`25, 2018. Counsel for Plaintiff represented that the parties had already conferred and indicated that
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`it would oppose the relief requested herein.
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` /s/ Christopher W. Kennerly
`Christopher W. Kennerly
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`-7-
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