Case 2:17-cv-00140-WCB-RSP Document 210 Filed 10/16/18 Page 1 of 8 PageID #: 10191
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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 SUR-REPLY IN 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 210 Filed 10/16/18 Page 2 of 8 PageID #: 10192
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`I.
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`CYWEE CONTINUES TO MISCHARACTERIZE THE COURT-MANDATED
`SCOPE OF THE DEPOSITION ON WRITTEN QUESTIONS
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`CyWee states in its reply that “the reason we are here” is because Samsung allegedly
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`failed to answer Interrogatory 14 and “the reason the Court ordered the DOWQs was Samsung
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`failed to provide the SEC Financial Information in its interrogatory responses.” Dkt. No. 184 at
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`1. That is incorrect. In reality, CyWee complained in previous motions to compel that Samsung
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`did not provide SEC financial information in response to Interrogatory 14. See, e.g., Dkt. No.
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`124 at 4; Dkt. No. 130 at 1. Samsung offered to produce that information before CyWee filed
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`those motions to compel, and Samsung subsequently did produce the SEC financial information.
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`Dkt. No. 129 at 1–3; Dkt. No. 180-1 ¶ 6. Then, at the August 10 hearing, the Court clearly
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`limited the scope of this deposition on written questions to the already produced SEC financial
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`information. See 8/10/2018 Hr’g. Tr. at 106:4–8; 104:12–14. The Court’s order for the
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`deposition on written questions further supports this understanding of the scope. Dkt. No. 145.
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`The Court’s order as to the scope obviously controls.
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`II.
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`SEC’S RESPONSES TO THE DEPOSITION ON WRITTEN QUESTIONS ARE
`NOT MATERIALLY DEFICIENT
`A.
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`Samsung Did Not Agree to an “Interrogatory-like” Format
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`CyWee incorrectly claims that Samsung chose to answer the written questions in an
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`“interrogatory-like” format. Dkt. No. 184 at 1. Instead Samsung merely stated “Samsung will
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`provide its answers in writing with the witness swearing to the same oath that he would take at a
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`deposition under Rule 30.” Supp. Brann Decl., Ex. 1. Further, and in explicit contrast to
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`CyWee’s current position, CyWee responded to Samsung that “the objections are still limited to
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`‘Form’ and to assert a privilege. These are not interrogatories.” Id. Indeed, deponents are not
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`expected to answer deposition questions in exacting detail and instead these questions are more
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`suited for interrogatories. United States ex rel. Fago v. M & T Mortg. Corp., 235 F.R.D. 11, 25
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`-1-
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`Case 2:17-cv-00140-WCB-RSP Document 210 Filed 10/16/18 Page 3 of 8 PageID #: 10193
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`(D.D.C. 2006). Fact discovery has closed and the time for interrogatories has passed. As CyWee
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`admits that the basis of its Motion is to obtain interrogatory-like answers, the Motion seeking to
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`compel such answers is improper and should be denied.
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`B.
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`The Responses to the Financial Information Questions Are Not Materially
`Incomplete (Numbers 6, 8–14, 40–42, and 64–67)
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`CyWee’s claims in its reply regarding Question 6
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`. Dkt. No. 180 at 3–4. The response was not materially
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`deficient. Additionally, by CyWee’s own admission that was an attempt to propound additional
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`interrogatories. Dkt. No. 184 at 1–2. That attempt is improper and should be rejected. Dkt. No.
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`180 at 3–4.
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`CyWee’s reply does not explain how the response to Question 8 is deficient besides the
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`fact that it does not possess the detail CyWee now desires, but never asked for in the deposition
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`on written questions. Dkt. No. 184 at 2. CyWee’s apparent remorse over the questions it posed
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`does not make the response materially deficient. The question was fully and fairly answered as
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`asked. Dkt. No. 180 at 5.
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`As CyWee’s reply does not mention Question 9, it appears CyWee no longer claims the
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`response to that question is deficient. In any event, the question was fully and fairly answered,
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`especially in light of the supplemental response, which CyWee apparently neglected to read. Dkt.
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`No. 180 at 5–6.
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`CyWee’s remaining complaint in regards to the response to Question 10 is that
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`-2-
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`Case 2:17-cv-00140-WCB-RSP Document 210 Filed 10/16/18 Page 4 of 8 PageID #: 10194
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`CyWee’s question was fully and fairly answered. The
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`response is not materially deficient because CyWee does not like the wording.
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`CyWee goes on to complain that
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`Thus, the question asked was fully and fairly
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`answered. The Court may note that these allegations are being dealt with in the parallel briefing
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`on CyWee’s Motion to Compel a Corporate Representative Deposition. Dkt. No. 194 at 2.
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`CyWee’s only remaining complaint regarding Questions 11–14 is that
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`Again, CyWee fails to explain how the responses to Questions 41 and 42 are deficient.
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` This request is therefore moot.
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`Samsung believes these questions have been fairly and fully answered as asked. Dkt. No. 180 at
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`8. As to Questions 40 and 64–67, CyWee complains that
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`That is incorrect.
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` and is therefore improper at this stage. Dkt. No. 180 at 8–10.
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`The request is also improper as it is outside the Court-mandated scope of already produced SEC
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`financial data. Id.
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`-3-
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`Case 2:17-cv-00140-WCB-RSP Document 210 Filed 10/16/18 Page 5 of 8 PageID #: 10195
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`C.
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`The Operating Profit Questions Were Not Ignored (Question Numbers
`72–79)
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`CyWee claims that Samsung ignored CyWee’s complaints regarding questions relating to
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`Samsung components and operating profits. Dkt. No. 184 at 5. That is also incorrect. Samsung’s
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`Opposition clearly stated that these questions appeared to be belated interrogatories and were
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`outside the Court-mandated scope of the deposition, i.e., SEC financial data already produced in
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`this case. Dkt. No. 180 at 10.
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`D.
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`Question Numbers 72–76 Were Outside the Scope of the Deposition
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`In its reply, CyWee claims that Samsung has ignored CyWee’s complaints that Mr. Han
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`was not prepared to answer Questions 72–76. Dkt. No. 184 at 5. To the contrary, Samsung has
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`objected to the questions as additional, belated and improper interrogatories and as outside the
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`Court-mandated scope of the deposition. Dkt. No. 180 at 10. CyWee’s claim that Mr. Han was
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`not sufficiently prepared ignores those objections and is incorrect.
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`E.
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`The “Critical Components” Questions Were Outside the Court-Mandated
`Scope of the Deposition (Question Numbers 82–87)
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`Again, CyWee claims that these questions were not answered due to Mr. Han’s lack of
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`knowledge. Dkt. No. 184 at 5. As already explained, however, these questions are outside the
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`scope of the deposition mandated by the Court. Dkt. No. 180 at 11. They are additionally, and
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`apparently by CyWee’s own admission, an attempt to propound additional interrogatories. Dkt.
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`No. 184 at 1–2. That is improper. Dkt. No. 180 at 11. CyWee’s reply ignores Samsung’s
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`objections that the questions were improper in the first place. Further, it is difficult to see how
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`CyWee can, in the same brief, take the contrasting positions that “[a]s a Rule 30(b)(6) witness,
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`the Deponent was required to gather information to answer the DOWQs from anyone and any
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`-4-
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`Case 2:17-cv-00140-WCB-RSP Document 210 Filed 10/16/18 Page 6 of 8 PageID #: 10196
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`material within SEC’s custody or control” and that “cases involving question and answer
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`procedures under Fed. R. Civ. P. 30(b)(6) or 31 have no relevance here.” Dkt. No. 184 at 2, 5.
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`The deposition on written questions cannot vary between a 30(b)(6) deposition and
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`interrogatories depending on which is most convenient to CyWee’s argument at any given time.
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`F.
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`The SEA Financial Information Questions Were Outside the Scope of the
`Deposition (Question Numbers 88–124)
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`Recycling the same arguments,
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`. Again, CyWee ignores
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`Samsung’s response that these questions are improper as outside the Court-mandated scope of
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`the deposition and as an improper attempt to propound additional, belated interrogatories. Dkt.
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`No. 180 at 12–13.
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`III. CONCLUSION
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`CyWee’s reply escalates from mischaracterizing the scope of the deposition to inventing
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`an agreement by Samsung to answer the questions like interrogatories. In reality, the deposition
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`questions are outside the Court-mandated scope of the deposition and are replete with improper
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`attempts to propound additional, belated interrogatories. Accordingly, CyWee’s Motion should
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`be denied.
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`-5-
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`Case 2:17-cv-00140-WCB-RSP Document 210 Filed 10/16/18 Page 7 of 8 PageID #: 10197
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`DATED: October 12, 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
`
`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
`
`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
`
`Melissa R. Smith
`TX Bar No. 24001351
`melissa@gillamsmithlaw.com
`GILLAM & SMITH, LLP
`303 S. Washington Ave.
`Marshall, TX 75670
`Telephone: (903) 934-8450
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`Attorneys for Defendants
`SAMSUNG ELECTRONICS CO., LTD AND
`SAMSUNG ELECTRONICS AMERICA,
`INC.
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`-6-
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`Case 2:17-cv-00140-WCB-RSP Document 210 Filed 10/16/18 Page 8 of 8 PageID #: 10198
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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 12, 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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`-7-
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