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` UNITED STATES DISTRICT COURT
` WESTERN DISTRICT OF TEXAS
` WACO DIVISION
`DEMARAY, LLC
`) Docket No. WA 20-CA-634 ADA
` )
`vs.
` ) Waco, Texas
` )
`INTEL CORPORATION
`) April 23, 2021
`__________________________________________________________
` UNITED STATES DISTRICT COURT
` WESTERN DISTRICT OF TEXAS
` WACO DIVISION
`) Docket No. WA 20-CA-636 ADA
`DEMARAY, LLC
` )
` ) Waco, Texas
`vs.
` )
`SAMSUNG ELECTRONICS CO., )
`LTD. (A KOREAN COMPANY), )
`SAMSUNG ELECTRONICS
`)
`AMERICA, INC., SAMSUNG
`)
`SEMICONDUCTOR, INC.,
`)
`SAMSUNG AUSTIN
`)
`SEMICONDUCTOR, LLC
`) April 23, 2021
`
` TRANSCRIPT OF VIDEOCONFERENCE DISCOVERY HEARING
` BEFORE THE HONORABLE ALAN D. ALBRIGHT
`
`APPEARANCES:
`For the Plaintiff:
`
`Mr. Crawford Maclain Wells
`Irell & Manella, LLP
`1800 Avenue Of The Starts,
`Suite 900
`Los Angeles, California 90067
`Mr. Richard D. Milvenan
`McGinnis, Lochridge
`& Kilgore, LLP
`600 Congress Avenue, Suite 2100
`Austin, Texas 78701
`
`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`Case 6:20-cv-00636-ADA Document 104 Filed 05/09/21 Page 2 of 29
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`2
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`(Appearances Continued:)
`For Intel Corporation:
`
`Mr. J. Stephen Ravel
`Kelly, Hart & Hallman, LLP
`303 Colorado Street, Suite 2000
`Austin, Texas 78701
`Mr. Philip Ou
`Paul Hastings, LLP
`1117 South California Avenue
`Palo Alto, California 94304
`For Samsung Electronics: Mr. Brian C. Nash
`Pillsbury, Winthrop,
`Shaw, Pittman, LLP
`401 Congress Avenue, Suite 1700
`Austin, Texas 78701
`Ms. Lily Iva Reznik, CRR, RMR
`501 West 5th Street, Suite 4153
`Austin, Texas 78701
`(512)391-8792
`
`Court Reporter:
`
`
`Proceedings reported by computerized stenography,
`transcript produced by computer-aided transcription.
`
`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`Case 6:20-cv-00636-ADA Document 104 Filed 05/09/21 Page 3 of 29
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`3
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`THE COURT: Hello. It's Alan Albright.
`MR. RAVEL: Hello, Judge.
`THE COURT: Mr. Ravel? Who else do I have on --
`Suzanne, would you call the case, please?
`THE CLERK: Sure.
`Discovery hearing in Civil Action 6:20-CV-634,
`styled, Demaray, LLC vs. Intel Corporation, and; Case No.
`6:20-CV-636, styled, Demaray, LLC vs. Samsung Electronics
`Company, Limited.
`THE COURT: Could I have announcements from
`counsel, please?
`MR. MILVENAN: Yes, your Honor.
`For the Plaintiff Demaray, LLC, this is Rick
`Milvenan from McGinnis Lochridge, and I'm joined by
`Maclain Wells from Irell and Manella.
`MR. RAVEL: Your Honor, Steve Ravel for Intel.
`And Phil Ou from Paul Hastings will be our primary speaker
`today.
`
`THE COURT: Okay. And I've read -- I'm sorry.
`Go ahead.
`MR. NASH: Judge, this is Brian Nash of Pillsbury
`here on behalf of the Samsung Defendants. And Phil will
`also be speaking on our behalf today, as well.
`THE COURT: Okay. Jun, my law clerk, forwarded
`me what the issues are, so I'm pretty up to speed. That
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`
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`Case 6:20-cv-00636-ADA Document 104 Filed 05/09/21 Page 4 of 29
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`doesn't mean I know necessarily who wants to go first
`arguing. So I'll hear from whoever it is who has the
`laboring oar to persuade me.
`MR. WELLS: Your Honor, I believe that we are
`requesting the discovery. This is Maclain Wells of Irell
`Manella on behalf of Demaray. So I think we should
`probably go first.
`THE COURT: Fine by me.
`MR. WELLS: So, your Honor, the OGP calls for
`technical documents sufficient to show the operation of
`the accused products, and this is separate from transfer
`discovery and we're not here about transfer discovery
`today. We're talking about documents called for under the
`order governing proceedings regarding the functioning of
`the products that are in dispute. Here, those products
`are reactors used in the production of semiconductors.
`Now, Plaintiff Demaray has two patents that are
`at issue. Both are related to sputtering from a target
`associated with physical vapor deposition during the
`production of semiconductor devices. And all of the
`claims in both patents require the reactors at issue to
`have a DC power source to the target, an RF bias power
`source to the substrate, and a narrow band rejection
`filter, in addition to other elements.
`Now, defendants' reactor configurations are
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
`
`Case 6:20-cv-00636-ADA Document 104 Filed 05/09/21 Page 5 of 29
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`5
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`proprietary. They're maintained inhouse; these are not
`publicly available. So in Demaray's preliminary
`infringement contentions, it charted example products for
`which reverse-engineering information was available for it
`to help determine what it believes is the configurations
`at issue.
`But Demaray needs the electrical schematics
`regarding these PVD chambers in order to show the relevant
`functioning of the reactors and the interconnection of the
`different components that are at issue in all of the
`claims, including schematics sufficient to show the
`interconnections and any filters used.
`Now, this information's necessary at this point
`in time for several reasons. One is, it's necessary to
`fully address disputes at the upcoming claim construction
`hearing. For example, why are they seeking to import
`limitations regarding certain claim terms? Two, they've
`complained about Demaray's infringement contentions, and
`this will allow us to provide more robust infringement
`contentions. And we're happy to supplement once we get --
`in a reasonable amount of time, after we get this
`information.
`And three, it's going to focus the issues for
`upcoming merits discovery. We need to know what reactors
`are actually in dispute as we go into merits discovery.
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
`
`Case 6:20-cv-00636-ADA Document 104 Filed 05/09/21 Page 6 of 29
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`The alternative is that we have to serve discovery demands
`at the beginning of merits discovery, wait for a response,
`wait for production of the documents, meet and confer, and
`if there's a dispute, come back to the Court a month or
`two months into merits discovery, without even knowing, at
`that point, the full range of the reactors that are at
`issue.
`
`Now, these documents, they're not overly
`burdensome. There's a limited number of reactor
`configurations that Samsung uses and that Intel uses, and
`they're undisputedly available. The primary supplier of
`reactors to both Samsung and Intel is a company named
`Applied Materials. And Applied Materials has appeared in
`this case, is represented by Mr. Ou and has voluntarily
`produced documents in this case. And the 30(b)(6) for
`Applied said that these documents are maintained in a
`database that Applied has readily available at its
`offices.
`
`Now, defendants argue that they don't have any
`control over these schematics, or at least some of these
`schematics. So they acknowledged that they do have some
`of these schematics, and there's no basis to withhold
`those. Now, in addition, Applied Materials has been
`producing documents that are favorable to defendants
`voluntarily in this litigation since back in December.
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
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`Case 6:20-cv-00636-ADA Document 104 Filed 05/09/21 Page 7 of 29
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`Now, plaintiff did subpoena Applied for documents and got
`some documents in response to the subpoena and took a
`deposition of Applied, but that doesn't change the fact
`that even before the subpoena, Applied was appearing and
`producing documents with Applied Bates numbers in this
`limitation voluntarily.
`And so, we believe Applied has an obligation to
`provide the full scope of the documents relevant to the
`basic functioning and operation of the accused products,
`not a one-sided presentation. In addition, there is a
`subpoena on Applied, relating to transfer discovery
`granted, but there is an open subpoena to Applied, as
`well.
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`The second issue that defendants argue is that
`this case is limited to just what are ti nitride and
`tantalum nitride layers. Those are two examples of a thin
`film that you could put down on these semiconductor
`devices, because those are the examples that were
`specifically identified in Demaray's preliminary
`infringement contentions.
`Again, those are the examples from the available
`reverse-engineering. Demaray stated consistently
`throughout this case that its assertions regarding
`infringement are not limited to just those two examples.
`We've stated that there's other types of layers that might
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`Case 6:20-cv-00636-ADA Document 104 Filed 05/09/21 Page 8 of 29
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`8
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`be at issue, including other types of oxides, for example,
`as well as just plain metal layers for titanium, copper or
`cobalt that could be deposited using the reactors in
`question.
`And Demaray's position is that defendants can't
`meet their burden under the OGP by providing one-sided
`disclosures, providing an incomplete picture of their
`reactor configurations with information that's beneficial
`to them but not provide basic schematics that are readily
`available that provides the actual configuration of the
`reactors that are at issue in this case.
`And an example of this is at the last -- after
`the last hearing on these issues regarding transfer
`discovery, Applied was deposed in this matter, and the
`Applied witness admitted that certain chambers for certain
`types of metal layers have a DC power source, an RF bias,
`and a filter. But Samsung and Intel have refused to
`identify whether any of the specific chambers that they
`use have those types of metal layers and haven't provided
`schematics, and whatnot, regarding those.
`So we request that defendant produce electrical
`schematics for the reactors, for PVD processes that have a
`DC power source and an RF bias on the substrate, and then,
`we can determine whether or not as the additional elements
`required by the claims and update our infringement
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`
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`Case 6:20-cv-00636-ADA Document 104 Filed 05/09/21 Page 9 of 29
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`contentions and go into merits discovery, knowing what the
`actual reactors at issue in this case are. Thank you,
`your Honor.
`THE COURT: Were you done?
`MR. WELLS: Yes, your Honor.
`THE COURT: I think what should frighten everyone
`on this call is that I actually understood every single
`thing that you talked about with regard to how this
`technology works. So I don't know if that's a good thing
`or a bad thing for you all, but I actually understand this
`technology.
`So, Mr. Ravel, whoever's going to speak, I'm not
`sure which defendants are going to speak, and I don't
`really remember exactly who's going to speak on their
`behalf, but I'm happy to hear from the defendants.
`MR. OU: Yes, your Honor. Good afternoon.
`It's Philip Ou from Paul Hastings on behalf of
`both Intel and Samsung. Your Honor, can you hear me okay?
`THE COURT: Yes, sir. I can.
`MR. OU: Okay. Thank you, your Honor.
`Your Honor, to begin, I think the most important
`point in this dispute is, I believe counsel for Demaray
`recognizes that Intel and Samsung, who are the named
`defendants in this case, they complied with OGP. They
`produced the technical documents in their possession back
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`
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`Case 6:20-cv-00636-ADA Document 104 Filed 05/09/21 Page 10 of 29
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`in December. And the type of electrical schematics that
`they're seeking, those aren't in the possession of Intel
`and Samsung. And so, Intel and Samsung, they complied
`with their obligations. Back in December, they produced
`manuals, power supply manuals, chamber manuals, documents
`that were in their possession.
`Mr. Wells makes reference to Applied Materials
`voluntarily providing some documents at that point in
`time. That's true. Intel and Samsung went to Applied
`because there are documents that Intel and Samsung would
`normally have access to in the ordinary course of
`business, such as the BKMs, which are the best known
`methods. And, your Honor, those are the kind of the
`crown-jewel process recipe information that would actually
`come on the actual manufacturing equipment that is at
`Intel and Samsung's fabrication facilities.
`Now, that information is in Intel and Samsung's
`possession, but it's on the reactor itself. And so, they
`had asked Applied, well, can you provide this actually in
`a readily ascertainable format? Because Applied has that
`information in PDF form and Applied did that. They
`voluntarily provided that information to help the case
`move forward and because that was information that Intel
`and Samsung do have access to.
`And the case proceeded and, your Honor, if you
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
`
`Case 6:20-cv-00636-ADA Document 104 Filed 05/09/21 Page 11 of 29
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`remember back in January, we had several disputes at issue
`about the scope of the case, and what discovery should be
`provided, and what was not. And, your Honor, if you'll
`recall, you denied the request for Applied Materials, who
`is a nonparty, to produce schematics. There were numerous
`other categories of information that Applied did provide.
`You ordered Applied to provide that. Applied then made
`its 30(b)(6) witness available for deposition.
`And Mr. Wells asked Applied's witness under venue
`discovery, hours at length, about every single Applied
`reactor, configuration, the power supplies, the filters.
`Your Honor, that's part of the record. The deposition's
`transcript is at Intel's case 73-1. And in our submission
`that we submitted to the Court, we cited to about 50 pages
`of Mr. Wells ever -- asking every detail possible about
`the configurations of Applied's reactors, whether or not
`they were identified in the infringement contentions,
`whether or not they were accused, or otherwise.
`And so, Demaray has the information about all of
`these reactors. And if the case proceeds into Markman and
`past that, when we actually get into merits discovery, you
`know, Applied has been subpoenaed. They are a nonparty,
`and it intends to comply with the subpoena at the
`appropriate time.
`But, your Honor, it's important that right now,
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
`
`Case 6:20-cv-00636-ADA Document 104 Filed 05/09/21 Page 12 of 29
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`12
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`we're still in pre-Markman. Merits discovery is supposed
`to be stayed, and Samsung and Intel believe they complied
`with their obligations. What Mr. Wells appears to be
`asking for is for a party to the case, before merits
`discovery even opens, to have to go to third parties who
`are not in the case. Demaray intentionally chose not to
`sue them, not to accuse them of infringement in this case,
`but to go get that information that otherwise is not in
`Intel and Samsung's possession.
`Your Honor, and so, for that reason, we think
`that their request for schematics from nonparties at this
`point is both premature and improper. Your Honor, I do
`note that in our submission, we did say, if Intel and
`Samsung do have such schematics, we know that they don't
`have those schematics from Applied Materials, but if they
`have schematics, there are a very de minimis number of
`non-Applied reactors that have been recently accused in
`the case. And the defendants are going back to see if
`they have those -- any information, and if they do,
`they'll provide it.
`But to ask the defendants to go and get
`information voluntarily from nonparties in this case, at
`this point, is both improper and premature. If Demaray
`wants that information, they should seek it once merits
`discovery opens.
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
`
`Case 6:20-cv-00636-ADA Document 104 Filed 05/09/21 Page 13 of 29
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`13
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`The last point, your Honor, I wanted to address
`is just about scope. I think Mr. Wells alluded to the
`fact that in this case, they are seeking discovery about a
`broad range of reactors. Your Honor, that issue was
`addressed during the January 26th hearing. It was dispute
`number two. And, your Honor, if I could share my -- if I
`have the ability to share my screen, I would show you the
`dispute, but it's dispute number two, submitted December
`29th, 2020 to your Honor.
`And, your Honor, during the hearing that we had,
`you denied their request. They had requested that Intel
`provide discovery about accused reactor configurations
`that go beyond titanium nitride and tantalum nitride,
`which are the ones that they allege that they have
`reverse-engineering reports to show that they have a
`good-faith basis to allege infringement. Now, it seems
`like they're seeking much more broader discovery and
`contrary to your Honor's prior ruling on this very
`dispute.
`Your Honor, I'll stop there unless you have any
`specific questions for me.
`THE COURT: No. I'm good.
`Anyone else, any other defendant want to speak?
`MR. OU: No, your Honor. I think I covered it
`for all the defendants -- all of the defendants, your
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
`
`Case 6:20-cv-00636-ADA Document 104 Filed 05/09/21 Page 14 of 29
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`14
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`Honor.
`
`THE COURT: Okay.
`MR. OU: Thank you.
`THE COURT: A response from Demaray?
`MR. WELLS: Yes, your Honor. Thank you.
`So I'll start with the last point regarding the
`arguments regarding limiting the discovery to tantalum
`nitride and titanium nitride. Your Honor did deny that
`with regard to transfer discovery, but that was a transfer
`issue and that's what your Honor was addressing.
`These are proprietary configurations. The idea
`that Demaray's case would be limited to the reactor layers
`on which a confined reverse-engineering while the other
`ones would be -- stay out of the case because defendants
`hide the information or fail to produce it, doesn't make
`any sense whatsoever. We need to know what reactors are
`at issue going to into merits discovery or we're going to
`spend months determining that before we could determine
`what discovery is actually necessary.
`And regarding the second point that Mr. Ou raised
`regarding the prior hearing, in the prior hearing, we did
`address Applied Materials' documents. And this was with
`regard to transfer discovery, and the Court noted that
`Applied Materials had to produce certain materials. Now,
`the Court did deny the request for schematics and with
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
`
`Case 6:20-cv-00636-ADA Document 104 Filed 05/09/21 Page 15 of 29
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`15
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`regard to transfer discovery and specifically stated.
`That's not going to be required for transfer discovery.
`So we're not seeking this information under
`transfer discovery. We're seeking this information
`because it turns out, the electrical schematics are what
`are necessary here to show the basic functioning of these
`products with regard to the technology addressed in the
`patents at issue.
`And the BKMs or product recipe information, that
`doesn't tell you how the power sources are connected and
`whether there's a filter and what -- how that filter is
`laid out. That information would be in electrical
`schematics. There are -- an Applied witness confirmed
`that, and the witness confirmed that these electrical
`schematics are readily available to Applied. And
`Applied's demonstrated in this case that it will produce
`documents and has produced documents voluntarily, separate
`and apart from any subpoena for defendants to produce when
`they're beneficial to defendants.
`We respectfully submit that Applied should have
`to produce documents fully describing the operation of the
`reactors that are at issue. Thank you.
`THE COURT: Help me out here. This is for the
`plaintiff. This is Alan Albright. This is for the
`plaintiff.
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
`
`Case 6:20-cv-00636-ADA Document 104 Filed 05/09/21 Page 16 of 29
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`16
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`So Applied Materials is not a party to the case,
`correct.
`MR. WELLS: Your Honor, Applied Materials is not
`a party to the case. They're coordinating the defenses
`with Samsung and Intel, including, for example, filing
`IPRs in another case in the Northern District of
`California. They're a third party here that has
`voluntarily produced documents on defendants' behalf.
`THE COURT: Well, let's assume all that's true.
`What power do I have to force Applied Material to do
`anything if they're not a party to the case?
`MR. WELLS: It would be twofold, your Honor. So
`the first issue is that there is case law stating that
`when a third party voluntarily produces documents for a
`defendant, for example, regarding some issues, it can't
`later say -- the defendant can't later say, oh, we don't
`have access and control of those documents that are not
`beneficial to our position.
`And so, cited in the submission to the Court --
`I'm sorry. I'm getting some feedback there. Citing in
`the submission to the Court, we noted case law that has
`held in similar circumstances that the defendant does have
`control, or is assumed to have control, over these
`documents.
`The second thing is, there is an outstanding
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
`
`Case 6:20-cv-00636-ADA Document 104 Filed 05/09/21 Page 17 of 29
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`17
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`subpoena on Applied that encompasses these documents. And
`so, that outstanding subpoena is certainly enforceable by
`the Court, and the Court certainly has the power to rule
`that Applied needs to produce these materials.
`THE COURT: Okay. And I may have cut you off.
`Or maybe, actually, I think someone from the defendants
`were about to make an argument, and I welcome that at this
`time.
`
`MR. OU: Yes, your Honor. Philip Ou for the
`defendants.
`Your Honor, a couple of points. The first one is
`with regard to that subpoena that Mr. Wells noted. That's
`correct. There is a subpoena that was issued, but it was
`only issued under the guise of this is venue discovery.
`Your Honor, we think your rules are clear in that, you
`know, merits discovery is stayed until we've gotten past a
`Markman.
`
`Now, Mr. Wells previously made arguments they
`were able to obtain numerous amounts of information from
`Applied Materials. They deposed an Applied witness for
`several hours, asked them merits-based questions all under
`venue discovery, and we let it go and we let it happen.
`You know, maybe we shouldn't have, but, frankly, we let it
`go because we were willing to provide the information at
`that time because we thought and hoped it would help
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
`
`Case 6:20-cv-00636-ADA Document 104 Filed 05/09/21 Page 18 of 29
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`18
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`narrow the case.
`Mr. Wells apparently was not satisfied with that
`testimony. He has it. He spent several hours asking the
`witness about every single configuration, apparently, I
`think if he believes the witness was not telling the truth
`under oath. But that all goes to merits discovery, your
`Honor, and they'll have the opportunity to seek that
`information through a subpoena when the time is right
`during this case, your Honor. But right now, under the
`current scheduling order, it's not. Merits discovery is
`supposed to be stayed.
`And, your Honor, I just wanted to note, also,
`that in this case, there are also non-Applied equipment
`for which there is no subpoena, for which there actually
`were no disclosures in the original infringement
`contentions. Samsung and Intel voluntarily produced
`information about those non-Applied reactors on the
`December 11th OGP deadline. And Demaray supplemented its
`contentions in February, after your Honor ordered them to
`do that. But those are equipment suppliers that have not
`subpoenaed, they've barely been in the case.
`And, you know, the relief that the plaintiff is
`seeking is also now to go have Samsung and Intel go to
`those suppliers, voluntarily ask for information that, you
`know, is not in the possession of the defendants and
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
`
`Case 6:20-cv-00636-ADA Document 104 Filed 05/09/21 Page 19 of 29
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`19
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`produce them, again, prior to any merits discovery open --
`being open.
`THE COURT: Anything else from the plaintiff?
`MR. WELLS: Yes, your Honor. Just to briefly
`address the last point there that was raised.
`With regard to these third-party suppliers that
`haven't voluntarily produced documents in this case
`already, we request that defendants go to them and ask if
`they will voluntarily provide those schematics. If they
`refuse, then we'll serve a subpoena on them at the
`appropriate time.
`But the primary reactor supplier at issue here is
`Applied Materials. Both defendants have stated that.
`Applied Materials has produced documents voluntarily in
`this case, and there is an outstanding subpoena.
`And the case that I cited to you earlier, your
`Honor, was CGTech Dev v. 888 Holdings, 2007 Westlaw
`3908673. And there, the Court held if a party in a case
`can get access to the documents held by a third party by
`requesting it and the third party did not have an issue in
`producing the documents in the past, the documents are
`under the control of the party in the case.
`That's exactly what's going on here. And so,
`your Honor, we think that the Court has the control -- or
`the power to order both defendants to produce this
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
`
`Case 6:20-cv-00636-ADA Document 104 Filed 05/09/21 Page 20 of 29
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`information and Applied under the subpoena. Thank you.
`THE COURT: Okay.
`MR. OU: Your Honor, Mr. Ou --
`THE COURT: Yes, sir.
`MR. OU: May I briefly just address that very
`last point in Mr. Wells' case?
`THE COURT: You have -- yeah. I'm sitting in
`traffic that will take me another three hours to get about
`a quarter mile. So you have all the time that you care to
`chat about.