Case 2:17-cv-00140-WCB-RSP Document 189 Filed 10/05/18 Page 1 of 18 PageID #: 9059
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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.,
`
`Defendants.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`
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`NO. 2:17-CV-00140-WCB-RSP
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`
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`DEFENDANTS SAMSUNG ELECTRONICS CO., LTD. AND SAMSUNG
`ELECTRONICS AMERICA, INC.’S OPPOSITION TO PLAINTIFF’S MOTION TO
`COMPEL FULLY RESPONSIVE ANSWERS TO DEPOSITION ON WRITTEN
`QUESTIONS
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`Case 2:17-cv-00140-WCB-RSP Document 189 Filed 10/05/18 Page 2 of 18 PageID #: 9060
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`TABLE OF CONTENTS
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`Page
`STATEMENT OF RELEVANT FACTS .......................................................................... 1
`ARGUMENT ..................................................................................................................... 3
`A.
`The Responses to the Financial Information Questions (Numbers 6, 8–14,
`40–42, and 64–67) Were Not Materially Deficient ............................................... 3
`1.
`Question Number 6 .................................................................................... 3
`2.
`Question Number 8 .................................................................................... 5
`3.
`Question Number 9 .................................................................................... 5
`4.
`Question Number 10 .................................................................................. 7
`5.
`Question Numbers 11–14 .......................................................................... 7
`6.
`Question Numbers 40, 64, and 65 .............................................................. 8
`7.
`Question Numbers 41 and 42 ..................................................................... 9
`8.
`Question Numbers 66 and 67 ..................................................................... 9
`The Responses to the Questions Regarding SAM_CYWEE00172322
`(Numbers 64–67 and 72–79) Were Not Materially Deficient ............................... 9
`1.
`Question Numbers 64–67 .......................................................................... 9
`2.
`Question Numbers 72–77 ........................................................................ 10
`3.
`Question Numbers 78 and 79 ................................................................... 10
`The Questions Regarding “Critical Components” (Numbers 82–87)
`Exceed the Scope of the Deposition .................................................................... 11
`The Questions Regarding SEA Financial Information Spreadsheets
`(Numbers 88–124) Exceed the Scope of the Deposition ..................................... 12
`CYWEE’S REQUESTED RELIEF IS IMPRACTICAL ................................................ 13
`CONCLUSION ................................................................................................................ 14
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`I.
`II.
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`III.
`IV.
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`B.
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`C.
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`D.
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`-i-
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`Case 2:17-cv-00140-WCB-RSP Document 189 Filed 10/05/18 Page 3 of 18 PageID #: 9061
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases
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`United States ex rel. Fago v. M & T Mortg. Corp.,
`235 F.R.D. 11 (D.D.C. 2006) ........................................................................................... passim
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`Other Authorities
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`Fed. R. Civ. P. 30(b)(6)..................................................................................................................13
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`-ii-
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`Case 2:17-cv-00140-WCB-RSP Document 189 Filed 10/05/18 Page 4 of 18 PageID #: 9062
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`CyWee’s Motion to Compel demands extensive information never contemplated to be
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`provided through this deposition on written questions. It should be denied for three reasons.
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`First, a number of the questions seek highly detailed information not previously requested from
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`or provided by Samsung Electronics Co., Ltd. (“SEC”). Such questions are beyond the Court-
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`ordered scope of this deposition, which is the financial information already produced by SEC in
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`this case. Moreover, these questions are more properly suited for interrogatories and therefore
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`are an attempt to propound additional interrogatories after the close of fact discovery. Second,
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`CyWee’s Motion raises questions that were never asked in the deposition on written questions.
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`Third, the remaining alleged deficiencies are based on mischaracterizations—and even false
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`recitations—of the deponent Mr. Kyuhyun Han’s responses. Accordingly, CyWee’s Motion to
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`Compel further supplemental answers to these questions should be denied.
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`I.
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`STATEMENT OF RELEVANT FACTS
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`CyWee filed two separate motions to compel asking for a deponent in Texas on SEC
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`financial data and material cost files. Dkt. Nos. 136 at 3; 130 at 7. Samsung declined to produce
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`deponents on this information because, among other reasons, CyWee delayed in asking for this
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`information and fact discovery had closed. Dkt. Nos. 141 at 1–2; 135 at 3. Those requests were
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`limited to topics on SEC financial information and not Samsung Electronics America, Inc.
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`(“SEA”) financial information, and indeed CyWee had already deposed Mr. Sean Diaz on those
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`topics. The Court heard argument on those motions to compel on August 10.
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`During the August 10 hearing, the Court was quite clear that the scope of the deposition
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`on written questions was limited to questions on SEC financial information already produced in
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`this case. The Court stated that the deposition would be “directed to the Samsung Korea financial
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`information and drilling down into the components of the information that has been produced.”
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`8/10/2018 Hr’g. Tr. at 104:12–14. Counsel for Samsung, Chris Kennerly, clarified the scope of
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`Case 2:17-cv-00140-WCB-RSP Document 189 Filed 10/05/18 Page 5 of 18 PageID #: 9063
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`this deposition, stating “I heard drilling into SAP system and getting more data, and I don’t think
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`that that’s what we’re contemplating. We’ve produced the information. So what I would expect
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`are questions about what we’ve produced,” to which the Court responded, “Right.” Id. at 106:4–
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`8. The Court’s subsequent Order confirmed the limited scope of this deposition, stating “[w]ith
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`respect to CyWee’s questions regarding the financial information of Samsung Electronics Co.,
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`Ltd., CyWee shall serve its questions . . . by August 17, 2018.” Dkt. No. 145 at 1.
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`CyWee, however, presented deposition questions that far exceeded the Court’s Order.
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`CyWee included questions attempting to force Samsung to provide every individual cost for
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`every Accused Product. CyWee also tried to retake its live deposition of SEA’s financial witness,
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`Mr. Diaz, asking questions about SEA data as well.
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`Samsung made good faith efforts to provide the information requested, within the scope
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`contemplated by the Court’s Order. Samsung’s witness, Mr. Kyuhyun Han, personally reviewed
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`the SEC financial information produced in the case and responded to the questions. He testified
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`that
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`. His responses were compiled and served on CyWee. Dkt. No. 164-8.
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`CyWee, however, claimed it was not satisfied and complained about certain responses. Dkt. No.
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`164-2. Samsung made every attempt to resolve CyWee’s alleged concerns, and Mr. Han served
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`supplemental answers to the deposition questions. Dkt. No. 164-3. CyWee still was not satisfied
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`and filed the instant Motion to Compel.
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`Case 2:17-cv-00140-WCB-RSP Document 189 Filed 10/05/18 Page 6 of 18 PageID #: 9064
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`II.
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`ARGUMENT
`A.
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`The Responses to the Financial Information Questions (Numbers 6, 8–14, 40–
`42, and 64–67) Were Not Materially Deficient
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`CyWee’s Motion to Compel complains that Samsung’s responses to questions 5–79 were
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`“materially incomplete.” Dkt. No. 164 at 4. In reality, CyWee only ever raised an issue with—
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`and its Motion only addressed—less than twenty of these questions, rather than seventy-four. Id.
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`at 5–10; Dkt. No. 164-2. Regardless, each of those questions either was fully responded to, asked
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`for additional document production and was thus inappropriate, or was misrepresented in
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`CyWee’s Motion.
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`1.
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`Question Number 6
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`Question Number 6 asks,
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` Additionally, to the extent this request asks for additional information,
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`it is outside the Court-ordered scope of the deposition. Further, this question, as CyWee views it,
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`requires exacting detail which a deponent is not expected to provide and instead is more suited
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`for interrogatories. United States ex rel. Fago v. M & T Mortg. Corp., 235 F.R.D. 11, 25 (D.D.C.
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`2006) (finding corporate testimony would not be compelled on topics requiring detailed
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`-3-
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`information—including loan numbers for hlmdreds of loans, and employee names for those that
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`reviewed over one hlmdred loans—and instructing that to the extent fluther discovery was
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`required on these topics, it need only be provided pursuant to interrogatories ah‘eady propounded
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`on these precise topics). Accordingly, this can be viewed as an improper attempt by CyWee to
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`belatedly propound interrogatories.
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`Cyeew also claims that it .. entitleme—
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`To the extent CyWee requests written instluctions, that is
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`beyond the scope of the deposition. If this request is asking the deponent to recall the instructions
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`word for word, it is improper since a deponent is not required to provide that level of detail.
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`Fago. 235 F.R.D. at 25. Again, this appears to be an improper attempt to ask interrogatories after
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`the close of discovery. Further, such commrmications are protected by the attorney-client
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`privilege, a privilege which CyWee explicitly said during a September 6, 2018 meet and confer
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`that it would not consider waived in regards to the instructions. Declaration of Elizabeth L.
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`Brann (“Brann Decl.”) 1] 2. CyWee’s current request for the written instructions without
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`reference to this conversation is misleading or at best incomplete.
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`CyWee’s Motion also asks Samsung to respond to an additional five questions.1 These
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`questions were not present in Question 6 either literally or inherently. For example, Question 6
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`-
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`II;|I
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`tthht the thhththto—
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`—. tththth tht
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`h tttthh ht
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`of the deposition set by the Court. To the extent this request asks the deponent to recall-
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`— from memory, it is improper since a depouent is not required to provide
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`this extraordinary level of detail. Fago, 235 F.R.D. at 25. This appears to be nothing more than
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`an attempt to ask additional, belated interrogatories. CyWee’s complaints that the answers
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`regarding Question 6 were materially deficient are without melit.
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`2.
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`Question Number 8
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`Qttttttn Nthhtt t thhhasked—
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`—. It does not ask, literally or inherently, the additional six
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`questions to which CyWee now seeks to compel answers.2 CyWee had the oppommity to ask
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`these separate questions, but it did not. Apparently recognizing this, CyWee now improperly
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`seeks a second deposition to ask them. Samslmg fully and fairly answered the question asked,
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`and CyWee’s alleged complaints are again without merit.
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`3.
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`Question Number 9
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`Qttththhhhhtt hasht—
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`—. chevvt tthhh thtthh
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`question could have been properly answered simply as “no.” Dkt. No. 164—2 at 2. In the spirit of
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`cooperation, however, Sam31mg provided additional detail. It now appears that all of CyWee’s
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`complaints about this response stem from this vollmtarily provided information.
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`CyWee’s only actual request in regards to this question appears to be—
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`It is wholly unreasonable for
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`CyWee to argue it is a material deficiency not to answer a question that was never asked. Instead
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`this is a follow 11p question based on Mr. Han’s response.
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`CyWee’s remaining complaints seem to stem fi‘om its failure to read the supplemental
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`responses
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`Accordingly, these complaints are meritless.
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`4.
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`Question Number 10
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`CyWee appears to believe the answer to Question Number 10 is deficient purely because
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`it is not the answer CyWee wanted. Specifically‘ CyWee argues the answer should have listed
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`not make Mr. Han’s answer deficient.
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`CyWee’s disagreement with this classification does
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`“even more nom‘esponsive” than others (Dkt. No. 164 at 7) is also without merit.
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`5.
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`Question Numbers 11-14
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`CyWee complains that the responses to Question Numbers 11—14 are deficient since they
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`Case 2:17-cv-00140-WCB-RSP Document 189 Filed 10/05/18 Page 11 of 18 PageID #: 9069
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` Again, merely because CyWee does not like how the deponent
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`answered the question does not mean the response is deficient.
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`6.
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`Question Numbers 40, 64, and 65
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`Question Number 40 merely asked for
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`responses
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` Once again, it appears that CyWee failed to read Samsung’s supplemental
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` Third, to the extent CyWee is asking for
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`, that again exceeds
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`the Court-ordered scope of the deposition. Fourth, to the extent these requests ask the deponent
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`to recall each and every
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`, they are improper since a deponent is not
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`required to provide such exacting detail. Fago, 235 F.R.D. at 25. Once again, this appears to be
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`an improper attempt to ask interrogatories after the close of fact discovery.
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`-8-
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`7.
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`Question Numbers 41 and 42
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`Question Numbers 41 and 42 relate tohow—
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`— and were fully and fairly answered as asked. Dkt. Nos. 164-8 at 13—14;
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`164-3 at 9—10. CyWee makes no argument as to why the answers to these specific questions are
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`deficient.
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`8.
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`Question Numbers 66 and 67
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`Question Numbers 66 and 67 inquire about—.” Dkt. No. 164-5 at
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`— mt. No.
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`at
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`To the extent these questions request the production of additional financial data, they are outside
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`the Comt—ordered scope of the deposition. To the extent these requests ask the deponent to recall
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`each andeve_, they are improper since a deponent is not
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`required to provide that level of detail. Fago, 235 F.R.D. at 25. Once again, this seems to be an
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`attempt to propound belated intelrogatories. Samsmig objected to these questions accordingly.
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`Dkt. No. 164—8 at 22; Dkt. No. 164-3 at 12.
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`B.
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`The Responses to the Questions Regarding SAM_CYWEE00172322
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`(Numbers 64—67 and 72—79) Were Not Materially Deficient
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`1.
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`Question Numbers 64—67
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`Accordmgly, eyttwt ttttttutm that—
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`— (Dkt. No. 164 at 11) is incon‘ect. Additionally, as stated
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`above, to the extent Question Numbers 64—67 request production of additional financial data,
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`Case 2:17-cv-00140-WCB-RSP Document 189 Filed 10/05/18 Page 13 of 18 PageID #: 9071
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`they are outside the scope of the deposition or not a proper inquiry for a deponent. Fago, 235
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`F.R.D. at 25.
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`2.
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`Question Numbers 72–77
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`These questions ask for additional data on
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`. Dkt. No. 164-5 at 11–12. CyWee
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`moves to compel responses to these questions, but these questions are improper for at least three
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`reasons. First, they effectively call for additional document production in light of
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`. They are therefore outside the scope of the
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`SEC financial data already produced in this case. Second, to the extent these requests ask the
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`deponent
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`, they are
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`improper since a deponent is not required to provide that amount of detail. Fago, 235 F.R.D. at
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`25. This appears instead to be an improper attempt to ask interrogatories long after the close of
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`fact discovery. Third, as outlined in Mr. Han’s response,
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` is therefore outside the scope of
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`the deposition. Dkt. No. 164-8 at 24–27. Samsung objected to these questions accordingly. Id.
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`3.
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`Question Numbers 78 and 79
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`These questions ask for
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`. Dkt. No. 164-5 at 12. CyWee seeks to compel
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`. Dkt. No. 164 at 12. First, as Mr. Han stated in his
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`response,
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`. Second,
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`these requests are outside the scope of the deposition limited to already produced SEC financial
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`information. Third, to the extent CyWee wants this response in narrative form, that is improper
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`since a deponent is not required to provide this level of detail. Fago, 235 F.R.D. at 25. This is yet
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`another attempt to propound belated interrogatories. Samsung objected accordingly. Dkt. No.
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`164-8 at 27. Notwithstanding, Samsung provided an explanation
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`. Id. It is unclear how this allegedly renders the
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`response materially deficient.
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`C.
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`The Questions Regarding “Critical Components” (Numbers 82–87) Exceed
`the Scope of the Deposition
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`CyWee demands that Samsung be made to answer Questions 82–87. Dkt. No. 164 at 13.
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`Each of these questions refers to “Critical Components,” which CyWee defined as “Components
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`required for an SKU or Model of an Accused Product to perform Critical Functions.” Dkt. No.
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`164-5 at 2, 13. “Critical Functions” is defined as
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`making and receiving a voice phone call, sending and receiving
`text messages with attachments, sending and receiving emails with
`attachments, taking and storing photos, accessing and searching the
`internet, displaying retrieved or created content related to the other
`Critical Functions, storing data and retrieving data in the form of
`digital files, PDFs or music/video files.
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`Id. These questions are improper for three reasons. First, given the definitions, responses would
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`require a technical opinion. Therefore, the questions are outside the Court-ordered scope of the
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`deposition, limited to SEC financial information already produced in this case. Regardless, Mr.
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`Han answered
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`Second, a number of the questions request additional financial data. That too is outside the scope
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`of the court-ordered deposition. Third, to the extent CyWee requires a narrative response, these
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`questions improperly require the deponent to recall overly detailed information. Fago, 235
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`F.R.D. at 25. This appears to be yet another attempt to propound interrogatories after the close of
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`fact discovery. Samsung objected to each of these questions for these reasons. Id.
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`Case 2:17-cv-00140-WCB-RSP Document 189 Filed 10/05/18 Page 15 of 18 PageID #: 9073
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`D.
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`The Questions Regarding SEA Financial Information Spreadsheets
`(Numbers 88–124) Exceed the Scope of the Deposition
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`CyWee demands responses to Question Numbers 88–124. Dkt. No 164 at 13–14. Each of
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`these questions relate to spreadsheets prepared by SEA. CyWee says that the questions must be
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`answered since the deposition was addressed to both SEC and SEA. Id. But who CyWee directed
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`the questions to is of no consequence. The Court was clear that the scope of the deposition was
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`SEC financial information already produced in this case. In fact, CyWee appears to understand
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`that the scope was so limited given its statements at the most recent hearing:
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`17 [THE COURT:] … And I would expect that the questions you ask -
`18 - I don’t want to buy a pig in a poke here -- but within reason
`19 would be questions that you’re entitled to frame.
`20 MR. SHORE: They would be just like the questions of
`21 Mr. Diaz about the Samsung America information that they
`22 produced Mr. Diaz for Samsung America. He was noticed for
`23 both --
`24 THE COURT: Yeah.
`25 MR. SHORE: -- but they only produced him for one.
`1 But I would like to ask those types of questions and follow-up
`2 questions of a Samsung Korea witness.
`3 THE COURT: All right.
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`8/10/2018 Hr’g Tr. at 101:17–102:3. Accordingly, CyWee represented that the purpose was to
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`ask an SEC witness questions on SEC financial data analogous to the questions it asked the SEA
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`witness on SEA financial data. Given the limited scope, Samsung’s responses began by stating
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`“[t]he Court’s August 10, 2018 order only required a deposition by written questions regarding
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`the financial information of SEC and therefore these responses do not reflect information from
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`Samsung Electronics America, Inc. (‘SEA’).” Dkt. No. 164-8 at 1.
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`Further, CyWee appears to believe that
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`These questions are additionally improper insofar as they purport to require additional
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`document production. This deposition was limited to documents already produced. Also, to the
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`extent these requests ask the deponent to recall detailed financial information, they are improper
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`since a deponent is not required to provide such exacting detail. Fago, 235 F.R.D. at 25. These
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`are merely interrogatories CyWee is attempting to propound after the close of fact discovery.
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`Additionally, CyWee has already had a full opportunity to depose an SEA witness on
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`SEA’s produced financial data. Brann Decl. ¶ 7. Accordingly, CyWee’s questions are either
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`cumulative of information CyWee already possesses or are an attempt to ask questions it failed
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`to ask in Mr. Diaz’s deposition.
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`III. CYWEE’S REQUESTED RELIEF IS IMPRACTICAL
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`CyWee requests that the Court “[o]rder Samsung to immediately produce a prepared
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`witness, in Dallas, Texas, to fully answer CyWee’s questions.” Dkt. No. 164 at 15. Many of
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`CyWee’s requests are for extremely detailed information
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`for each and every Accused Product. Dkt. No. 164 at 9. These questions cannot properly be
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`answered during a deposition, nor is a deponent expected to provide this level of detail. Fago,
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`235 F.R.D. at 25 (“Although Rule 30(b)(6) requires a designated witness to thoroughly educate
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`him or herself on the noticed topic, it should go without saying that the witness should not have
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`to memorize hundreds of [] numbers.”). While Samsung objects to these questions as outside the
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`scope of the deposition insofar as they request additional document production, if the Court finds
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`any answers materially deficient, Samsung requests that it be allowed to supplement the answer
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`at the direction of the Court rather than produce a deponent.
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`Case 2:17-cv-00140-WCB-RSP Document 189 Filed 10/05/18 Page 17 of 18 PageID #: 9075
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`IV. CONCLUSION
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`Overall, CyWee’s Motion to Compel should be denied because a number of the requests
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`seek extremely detailed information not previously requested from SEC and are therefore far
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`beyond the Court-ordered scope of this deposition, because a number of questions were never
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`asked in the deposition, and because the remaining alleged deficiencies are based on incorrect
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`characterizations of the deponent’s testimony.
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`Samsung naturally disagrees with the numerous mischaracterizations in CyWee’s request
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`for sanctions, including that Samsung “hid” (Dkt. No. 164 at 14) any information. The opposite
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`is true. Instead, Samsung requests appropriate sanctions against CyWee for intentionally failing
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`to heed the Court’s prescribed scope for the deposition, and then compounding that violation by
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`filing the instant Motion based on clear mischaracterizations of the record, unsupported
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`arguments, and a complete failure to read all of the deponents responses. CyWee has not acted in
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`good faith and sanctions are warranted.
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`DATED: October 3, 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
`
`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
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`-14-
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`Case 2:17-cv-00140-WCB-RSP Document 189 Filed 10/05/18 Page 18 of 18 PageID #: 9076
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`4747 Executive Drive, 12th Floor
`San Diego, California 92121
`Telephone: (858) 458-3000
`Facsimile:
`(858) 458-3005
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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 October 3, 2018. As of this date, all
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`counsel of record had consented to electronic service and are being served with a copy of this
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`document through the Court’s CM/ECF system under Local Rule CV-5(a)(3)(A) and by email.
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` /s/ Christopher W. Kennerly
`Christopher W. Kennerly
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`CERTIFICATE OF AUTHORIZATION TO SEAL
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`I hereby certify that under Local Rule CV-5(a)(7), the foregoing document is filed under
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`seal pursuant to the Court’s Protective Order entered in this matter.
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` /s/ Christopher W. Kennerly
`Christopher W. Kennerly
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`-15-
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