Case 2:17-cv-00140-WCB-RSP Document 204 Filed 10/12/18 Page 1 of 10 PageID #: 9818
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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 OPPOSITION TO PLAINTIFF’S MOTION TO
`COMPEL CORPORATE REPRESENTATIVE DEPOSITION ON THE SUBJECT OF
`IMPORTATION AND SALES TO SAMSUNG SUBSIDIARIES
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`Case 2:17-cv-00140-WCB-RSP Document 204 Filed 10/12/18 Page 2 of 10 PageID #: 9819
`Case 2:17-cv-00140-WCB-RSP Document 204 Filed 10/12/18 Page 2 of 10 PageID #: 9819
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`CyWee’s Motion to Compel Corporate Representative Deposition not only
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`mischaracterizes the facts but also demands information that is 1mimportant to the remaining
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`issues in this case. The motion rests on allegations that Samsung Electronics C0.. Ltd. (“SEC”)
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`and Samsung Electronics Amelica, Inc. (“SEA”) (collectively, “Samsmlg”) hid—
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`—. However, Samsung voluntarily disclosed the existence of-
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`_, and CyWee cites no facts supporting its allegation that Samsung is hiding other US.
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`subsidiaries. The motion appears to be nothing more than an attempt to depose an additional
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`witness after the close of fact discovely. The motion should therefore be denied.
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`1.
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`STATEMENT OF FACTS
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`A.
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`Samsung Voluntarily Disclosed— and
`the Relevant Financial Information
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`Sa1ns1mg disclosed the existence of_ not in response to a coru't order but
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`rather in response to a letter from CyWee. CyWee claims that “Samsrmg was forced by an Order
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`from this Court to reveal for the first time that SEC subsidialy—
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`-” Dkt. No. 168 at 5. This is completely false, and CyWee’s citation for this claim is
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`confusing and at best unavailing. Dkt. No. 168 at 5. CyWee cites to paragraph 3 of the Shore
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`declaration, which does not cite any comt order. Dkt. No. 168—1. Instead—and contrary to
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`— were eere-eeeeepeeeueeevehmeeuy by
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`Samsung.
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`Case 2:17-cv-00140-WCB-RSP Document 204 Filed 10/12/18 Page 3 of 10 PageID #: 9820
`Case 2:17-cv-00140-WCB-RSP Document 204 Filed 10/12/18 Page 3 of 10 PageID #: 9820
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`Specifically. on August 13. two weeks after the close of fact discovery. CyWee sent a
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`letter to Samsrmg seeking “all documents showing importation of the Accused Products” to
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`determine who “record importer[s]” were. Dkt. No. 157-4. Despite the questionable relevance of
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`the existence of any other importers, and despite the fact that discovery had closed, Samsruig
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`Products. Dkt. No. 157—5 at 2. Samsung further offered to produce ‘—
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`Dkt.
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`No. 157-8. This voluntary production of information and documents directly contradicts
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`CyWee’s rmsupported claim that the information was “intentionally hidden,” “fraudulently
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`concealed,” or that “Samsung was forced by an Order from this Com1 to reveal for the fn‘st time
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`.” Dkt. No. 168 at 5. In reality. Samsrmg
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`voluntarily disclosed this information. Additionally. it is unclear that Samsung could have
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`hidden theeaseme—
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`Samsrmg’s investigation related to this case has revealed that—
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`Brann Decl. 1] 4. CyWee ah'eady has
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`extensive fmancial information for SEA, and importation information for SEA is currently the
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`Case 2:17-cv-00140-WCB-RSP Document 204 Filed 10/12/18 Page 4 of 10 PageID #: 9821
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`subject of a pending motion to compel. Dkt. No. 157. Additionally, Samsung has already
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`produced a deponent for SEA, Sean Diaz. Brann Decl. ¶ 5.
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`B.
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`CyWee Mischaracterizes Sean Diaz’s Testimony
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`CyWee’s motion mischaracterizes the testimony of Sean Diaz as falsely admitting that
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` That is
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`CyWee also states that
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`incorrect. It appears instead that counsel for CyWee asked Mr. Diaz
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`-3-
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`Case 2:17-cv-00140-WCB-RSP Document 204 Filed 10/12/18 Page 5 of 10 PageID #: 9822
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`Neither of these statements shows that Mr. Diaz was
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` nor does CyWee explain
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`why it believes this is the case. Id.
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`C.
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`CyWee Changed the Scope of Its Demanded 30(b)(6) Deposition Even After
`Filing This Motion.
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`After CyWee filed this motion, it sent Samsung a 30(b)(6) deposition notice on some of
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`these same topics and some additional topics. Ex. 4. CyWee told Samsung, “When you respond
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`to the Motion to Compel, consider the notice as the topics actually at issue.” Ex. 5. Once again
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`CyWee has moved the target on Samsung making it difficult to meet, let alone comprehend, its
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`ever-shifting demands. It appears CyWee has set a moving target for the Court as well by filing a
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`motion to compel a deponent on certain topics, then adding and subtracting topics mid-briefing.
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`II.
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`ARGUMENT
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`Samsung will not address the merits of the specific topics listed in CyWee’s motion (Dkt.
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`No. 168) because it understands those topics to no longer be operative. Instead Samsung will
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`address the demand to compel a deponent on importation information generally. Such a
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`deposition is inappropriate because it was made after the close of discovery and CyWee has not
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`demonstrated good cause for the deposition. Lucent Techs., Inc. v. Gateway, Inc., No. 07-cv-
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`2000-H CAB, 2008 WL 183637, at *2 (S.D. Cal. Jan. 17, 2008) (stating that “[a] party may
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`obtain relief from a ‘cut-off’ date only by demonstrating good cause for allowing further
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`discovery” and granting a motion for protective order where the party seeking a deposition after
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`the close of fact discovery “offer[ed] no reasons as to why it could not have completed this
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`discovery in a timely manner”).
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`Case 2:17-cv-00140-WCB-RSP Document 204 Filed 10/12/18 Page 6 of 10 PageID #: 9823
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`A.
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`CyWee Has No Basis to Compel a Deponent
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`CyWee cannot dispute that its deposition notice was served without leave and long after
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`the close of discovery. Leave to take the deposition should not be granted because the discovery
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`is not proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). Specifically, the discovery is
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`not important to resolving any outstanding issue. Id. CyWee argues that it is entitled to a
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`deponent on importation
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`. CyWee has offered no evidence that any other importer of record exists. Therefore, the
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`requested deposition will not resolve any outstanding substantive issue but instead is a blatant
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`fishing expedition. Micro Motion, Inc. v. Kane Steel Co., Inc., 894 F.2d 1318, 1327–28 (Fed. Cir.
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`1990) (“An unfounded suspicion regarding [a party]’s infringement does not support discovery
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`into that subject matter. . . . While the expression ‘fishing expedition’ has been generally
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`denigrated as a reason for objecting to discovery, in some situations, such as the one at hand, it
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`remains apt.”).
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`CyWee argues that a deposition is also justified because
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`. No
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`discovery fraud exists because Samsung’s voluntary disclosures and further acts of cooperation
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`cannot be fraud. Yet again, CyWee has taken a forthcoming disclosure and used it to generate
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`additional baseless disputes.
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`Case 2:17-cv-00140-WCB-RSP Document 204 Filed 10/12/18 Page 7 of 10 PageID #: 9824
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`B.
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`CyWee’s Additional Demands Are Not Justified
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`In the last sentence of its motion, CyWee makes four additional demands: (i) “that the
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`Court order Samsung (SEC and SEA) to supplement their disclosures to reveal all Samsung
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`subsidiaries to whom SEC or SEA sell Accused Products”; (ii) “all imports of Accused Products
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`by SEC and SEA subsidiaries”; (iii) “to whom those subsidiaries sell or transfer Accused
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`Products after they receive them”; and (iv) “the terms and conditions of those sales.” Dkt. No.
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`168 at 9. These requests are problematic for two reasons. First, the parties have not conferred
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`about these requests, and they are therefore premature for a motion to compel. Brann Decl. ¶ 6.
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`Second, the majority of these requests have questionable relevance. For example, the identity of
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`“all Samsung subsidiaries to whom SEC or SEA sell Accused Products” is wholly unrelated to
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`this case because it includes subsidiaries whose importation and sales occur entirely outside of
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`the United States. CyWee does not state why these requests are necessary. Accordingly, the
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`Court should deny these additional requests.
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`C.
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`Sanctions Should Be Awarded Against CyWee, Not Samsung
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`This motion marks another in a long pattern of motions to compel by CyWee that are
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`based on mischaracterized or completely false facts. For example, as outlined above, CyWee’s
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`statements of concealment in this case are completely untrue. In reality,
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`-6-
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`Case 2:17-cv-00140-WCB-RSP Document 204 Filed 10/12/18 Page 8 of 10 PageID #: 9825
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` was voluntarily produced by Samsung. Further,
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`CyWee’s characterizations of Mr. Diaz’s testimony are false.
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`CyWee also makes a number of inflammatory—and, by CyWee’s own admission,
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`false—statements regarding an alleged fraud that it perceives Samsung committed in other cases.
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`For example, CyWee states that it believes Samsung may have “in all prior Eastern District of
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`Texas cases, intentionally withheld infringing sales evidence that would cumulatively total over
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` and that “Samsung’s misconduct [is] perhaps the most extensive discovery fraud
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`in the history of the United States legal system.” Dkt. No. 168 at 8. It further states Samsung
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`“fail[ed] to disclose the information in hundreds of other cases in this Court.” Id. at 9.
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`Putting aside that these allegations are wholly unrelated to CyWee’s Motion to Compel a
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`Deponent, these are serious accusations for which CyWee provides no support besides the bald
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`allegation that “this estimate” is based on at least one hundred cases in the last three years where
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` “have not been disclosed.” Id. CyWee makes no attempt to explain how it
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`came to the conclusion that
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` was relevant and not disclosed in those one hundred-
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`plus cases. In fact, CyWee later admitted that it did not do a review of those cases until after it
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`made these representations to the Court. Ex. 6. CyWee’s review revealed that its “estimate” was
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`too high and CyWee drastically narrowed the list of allegedly offending cases to only thirty-five
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`in the last five years. Id. CyWee corrected the declaration of Rhonda Polvado to reflect this.
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`Dkt. No. 169. CyWee still does not explain how it investigated or determined that
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`was relevant and not disclosed in these cases.
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`The numerous misstatements CyWee uses to support its motion are directly and clearly
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`rebutted by the record and even CyWee’s own subsequent corrections. Further, a number of
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`these statements, such as CyWee’s narrative on its belief that Samsung committed fraud in other
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`-7-
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`Case 2:17-cv-00140-WCB-RSP Document 204 Filed 10/12/18 Page 9 of 10 PageID #: 9826
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`cases, are wholly unrelated to the matter at hand and a distraction. Accordingly, Samsung
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`requests attorney’s fees for time spent preparing this Opposition to CyWee’s baseless and moot
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`motion to compel.
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`III. CONCLUSION
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`Samsung respectfully requests that the Court deny CyWee’s Motion to Compel Corporate
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`Representative Deposition on the Subject of Importation and Sales to Samsung Subsidiaries. Dkt.
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`No. 168.
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`DATED: October 9, 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
`
`Barry Sher (pro hac vice)
`NY Bar No. 2325777
`barrysher@paulhastings.com
`Zachary Zwillinger (pro hac vice)
`NY Bar No. 5071154
`zacharyzwillinger@paulhastings.com
`PAUL HASTINGS LLP
`200 Park Avenue
`New York, New York 10166
`Telephone: (212) 318-6000
`Facsimile:
`(212) 319-4090
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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
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`-8-
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`Case 2:17-cv-00140-WCB-RSP Document 204 Filed 10/12/18 Page 10 of 10 PageID #: 9827
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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 9, 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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`-9-
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