Case 2:17-cv-00140-WCB-RSP Document 221 Filed 10/19/18 Page 1 of 7 PageID #: 10467
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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 CORPORATE REPRESENTATIVE DEPOSITION ON THE
`SUBJECT OF IMPORTATION AND SALES TO SAMSUNG SUBSIDIARIES
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`CYWEE GROUP LTD.,
`
`Plaintiff
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`v.
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`SAMSUNG ELECTRONICS CO., LTD.
`AND SAMSUNG ELECTRONICS
`AMERICA, INC.,
`
`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 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 221 Filed 10/19/18 Page 2 of 7 PageID #: 10468
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`CyWee’s Reply confirms that its Motion to Compel Corporate Representative Deposition
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`on the Subject of Importation and Sales is based on the flawed premise that Samsung hid the
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`existence of subsidiary importers of the Accused Products. To the contrary,
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` Accordingly, CyWee’s Motion should be denied.
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`I.
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`SAMSUNG DID NOT HIDE THE EXISTENCE OF ADDITIONAL IMPORTING
`SUBSIDIARIES
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`CyWee argues that it is entitled to this deposition after the close of fact discovery because
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`it believes SEC and Samsung Electronics America, Inc. (“SEA”) (collectively, “Samsung”) are
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`hiding the existence of additional importers. This theory is flawed for a number of reasons.
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`First, Samsung is not hiding importers.
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`disclosed voluntarily in response to a letter sent by CyWee after the close of fact discovery
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`That was
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`requesting this information.
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`Second, CyWee apparently believes Samsung is hiding additional importers based on its
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`incorrect theory that Samsung “failed to disclose” this information “in its disclosures mandated
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`by the Local Rules.” Dkt. No. 198 at 2. CyWee, however, provides no legal support for its claim
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`that importation information for entities not named in this case is relevant to its claims of direct
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`infringement. CyWee likewise provides no legal support for its claim that the information is
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`relevant since “CyWee accuses SEC of inducing its subsidiaries to infringe.” Dkt. No. 198 at 1–
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`2. Although CyWee’s complaint included boilerplate language regarding induced infringement,
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`-1-
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`Case 2:17-cv-00140-WCB-RSP Document 221 Filed 10/19/18 Page 3 of 7 PageID #: 10469
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`CyWee’s infringement contentions omit this theory. Dkt. No. 9 ¶ 25; Supplemental Declaration
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`of Elizabeth L. Brann ¶ 2, Ex. 7. “The Local Patent Rules directed to infringement contentions
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`are designed to ensure that defendants are given full and timely notice of the allegations against
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`them.” Sycamore IP Holdings LLC v. AT&T Corp., No. 2:16-CV-588-WCB, 2017 WL 4517953,
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`at *5 (E.D. Tex. Oct. 10, 2017). CyWee’s contentions cannot have provided any such notice of
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`induced infringement because they entirely omit this theory. Further, since the theory was not in
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`the contentions, Samsung reasonably believed (and continues to believe) it is not properly
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`asserted. Nike, Inc. v. Adidas Am. Inc., 479 F. Supp. 2d 664, 670 (E.D. Tex. 2007) (“Based on
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`the brief statements in the July 2006 contentions, followed by the October 2006 contentions in
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`which there was no mention of the doctrine of equivalents, it was reasonable for [Defendant] to
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`assume that the doctrine of equivalents was not being pursued.”). Regardless, Samsung has
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`already disclosed the allegedly relevant information.
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`Further, if CyWee’s theory were true—i.e., that Samsung hid the existence of importers
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`contrary to the Local Rules—it does not make sense that Samsung would
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`in response to a letter served by CyWee after the close of
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`fact discovery. Samsung’s forthcoming disclosures rebut CyWee’s conspiracy theory.
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`Third, CyWee’s only other alleged support that Samsung hid the existence
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` is the testimony of Sean Diaz. CyWee’s reply, however, confirms that Mr. Diaz only
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` CyWee claims that since “[t]hat testimony was false . . . [f]or
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`that reason alone, CyWee seeks a Samsung corporate representative to testify under oath in a
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`deposition whether any additional SEC subsidiaries exist that import Accused Products.” Id. at
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`3–4. Since CyWee’s statement that Mr. Diaz’s “testimony was false” (Id. at 3) is demonstrably
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`-2-
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`Case 2:17-cv-00140-WCB-RSP Document 221 Filed 10/19/18 Page 4 of 7 PageID #: 10470
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`incorrect, however, and since this incorrectly labeled “false testimony” is by CyWee’s admission
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`the basis for its Motion, the Motion should be denied.
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`Finally, CyWee provides no legal support for the claim that its paranoia constitutes good
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`cause for this belated deposition. The record shows that Samsung has been very forthcoming in
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`the disclosure of importers, despite the questionable relevance of these requests.
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`II.
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`THE DEPOSITION IS NOT PROPORTIONAL TO THE NEEDS OF THE CASE
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`Samsung has already disclosed the importers of the Accused Products, as well as
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` Since there appears to be no additional information to be obtained from this deposition, and
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`the requested topics have questionable relevance in any event, this request is not proportional to
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`the needs of the case. Fed. R. Civ. P. 26(b)(1). The burden and expense of producing a witness
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`for deposition far outweighs the benefit of any information CyWee might hope to obtain from
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`the deposition. Specifically, CyWee has produced no evidence that any additional importers
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`exist, and Samsung has already disclosed the importers it located. Dkt. No. 157-5 at 2. Therefore,
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`CyWee’s Motion essentially demands that a Samsung witness prepare for and attend a deposition
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`that will amount to little more than a fishing expedition.
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`III. CYWEE’S CONDUCT IN THIS CASE ILLUSTRATES WHY A DECLARATION
`WOULD NOT BE SUFFICIENT
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`CyWee claims that “[a] simple and direct way” to avoid this deposition is for Samsung to
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`provide a declaration stating “that no SEC subsidiary
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` acts as an
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`importer of record of any Accused Products into the United States.” CyWee’s approach in this
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`case, however, suggests strongly that such a declaration would be anything but “a simple way” to
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`avoid additional discovery disputes.
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`Case 2:17-cv-00140-WCB-RSP Document 221 Filed 10/19/18 Page 5 of 7 PageID #: 10471
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`For example, Samsung voluntarily produced material cost files in this case, yet CyWee is
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`currently demanding a deposition to obtain this exact data. Dkt. No. 180 at 8–9. Additionally,
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`CyWee’s reply to this Motion twists Samsung’s cooperation in
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`, which specifically was crafted in order to minimize discovery and disputes, into
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`support for a deposition on importation, stating
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`Despite CyWee’s claims, it has rarely taken
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`Samsung’s discovery cooperation at face value. Given this pattern, Samsung sees no reason why
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`such a declaration would be useful. That said, if the Court is inclined to order further discovery,
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`Samsung requests the opportunity to discuss with the Court the option of providing a declaration
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`in lieu of a deposition.
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`IV. CYWEE’S FOUR ADDITIONAL REQUESTS FOR RELIEF ARE IMPROPER
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`CyWee lists four additional requests for supplemental disclosures related to operations of
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`other Samsung subsidiaries, additional alleged importation and sales, and terms of those sales.
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`Dkt. No. 198 at 5. CyWee cannot dispute, however, that the parties have not met and conferred
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`on these issues. Dkt. No. 194 at 6. Further, some of the requests demand discovery from
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` Thus, these requests appear to be an attempt to circumvent
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`those agreements. These additional requests should be denied.
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`V.
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`SANCTIONS AGAINST CYWEE ARE APPROPRIATE
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`CyWee’s reply doubles down on its numerous prior mischaracterizations. The record is
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`clear that Samsung did not hide the existence of additional subsidiary importers through Mr.
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`Diaz’s testimony or otherwise. CyWee also continues to make unsupported, inflammatory
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`accusations against Samsung. Dkt. No. 198 at 4. Again, CyWee does not explain how it came to
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`-4-
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`Case 2:17-cv-00140-WCB-RSP Document 221 Filed 10/19/18 Page 6 of 7 PageID #: 10472
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`the conclusion that importation information was hidden in other cases. Further, CyWee ignores
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`that it drastically misrepresented to the Court the potential scope of this alleged “fraud.” Dkt. No.
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`194 at 6–8. Regardless, this accusation has nothing to do with the present Motion. Accordingly,
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`Samsung requests attorneys’ fees incurred in opposing CyWee’s baseless Motion.
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`VI. CONCLUSION
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`The record shows that Samsung has never hidden the existence of additional subsidiary
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`importers of the Accused Products. Further, SEC has agreed to
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` Therefore, Samsung respectfully requests
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`that the Court deny CyWee’s Motion.
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`DATED: October 17, 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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`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
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`-5-
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`Case 2:17-cv-00140-WCB-RSP Document 221 Filed 10/19/18 Page 7 of 7 PageID #: 10473
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`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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`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 17, 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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`-6-
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