Case 6:20-cv-00636-ADA Document 438 Filed 12/15/23 Page 1 of 4
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`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`DEMARAYLLC,
`
`Plaintiff
`
`V.
`
`Case No. 6:20-cv-00636-ADA
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`SAMSUNG ELECTRONICS CO., LTD
`
`
`(A KOREAN COMPANY), SAMSUNG
`
`ELECTRONICS AMERICA, INC.,
`FILED UNDER SEAL
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`SAMSUNG SEMICONDUCTOR, INC.,
`and SAMSUNG AUSTIN
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`SEMICONDUCTOR, LLC,
`
`JURY TRIAL DEMANDED
`
`Defendants.
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`ORDER ON DISCOVERY DISPUTE
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`Issue
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`Demaray LLC's Position Samsung's Position
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`Samsung aheady confnmed to
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`Under FRCP Rule 26(e), Samsung
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`Indemnity
`Agreements
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`has a continuing obligation to
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`Demaray that nothing has changed
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`supplement its discove1y responses since it served its inte1Togato1y
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`if they are incomplete or inaccurate.
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`response over two years ago; therefore,
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`But Samsung refuses to confirm that there is nothing to supplement. Yet,
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`its response to Demaray's Demaray is pressing fo1ward on its
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`Inte1Togato1y 17 regarding attempt to obtain additional discove1y
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`indemnification remains complete regarding indemnity issues that it could
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`have raised during fact discove1y.
`and accurate.
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`Inte1Togato1y 17 requests Samsung responded to Inte1Togato1y 17
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`on July 29, 2021 with objections based
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`infonnation regarding "whether any
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`on, inter alia, relevance and privilege.
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`claims for indemnification or
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`Demaray raised a dispute over
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`potential indemnification related to
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`Samsung's response and--
`this case have been made, and if so,
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`describe them and identify any
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`related documents." See also RFP 26
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`("All agreements between You and
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`any other person or entity Relating
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`To indemnity obligations .... ").
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`ubsequent two years of fact discove1y,
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`·aised an issue as to the sufficienc of
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`'
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`Case 6:20-cv-00636-ADA Document 438 Filed 12/15/23 Page 2 of 4
`Case 6:20-cv-00636-ADA Document 438 Filed 12/15/23 Page 2 of 4
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`this response. Demaray’s motion is
`therefore improper and should be
`denied.
`
`First, Samsung already confirmed to
`Demaray in responseto its request that
`circumstances regarding indemnity
`have not changed since Samsung
`served its response, and thus
`Demaray’s requested relief is moot.
`
`Second, Demaray’s requestis really an
`untimely discovery dispute disguised as
`a “request to supplement.” Fact
`discovery closed on July 14, 2023 and
`Samsung’s response was served over
`two years ago. The deadline to raise a
`complaint as to the sufficiency of
`Samsung’s interrogatory response has
`long passed.
`
`Smith v. Twin Vill. Mgmt. LLC, No.
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`Implicitly admitting that this is highly
`untimely, Demaray couchesits request
`as “aris[ing]” in October because
`Samsung disclosed Applied witnesses
`under Rule 26(e). But Samsung
`disclosedall three witnesses nolater
`than February 16, 2023 as witnesses
`that Samsung mayrely on attrial, well
`within the fact discovery period.
`Moreover,all three witnesses were
`deposed in March or May 2023. The
`three witnesses and Samsung’s
`indemnity agreement with Applied
`were thus fully disclosed during the
`fact discovery period suchthat to the
`extent that Demaray felt Samsung’s
`response or disclosures were
`inadequate, it should have raised those
`issues during the fact discovery period.
`See Local Rule CV-16(e). Instead,
`Demaraywaited over three months to
`raise this purported dispute and only
`after raising indemnity issuesin the co-
`pending California case (during the fact
`discovery period) and ultimately
`withdrawing its motion there. See
`
`—<a
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`Samsung has
`never updated its response.
`
`This dispute arises because, on
`October 10, 2023, Samsung
`disclosed thatit intends to rely upon
`three employee-witnessesofits
`reactor supplier, Applied,to testify
`on Samsung's behalfat trial. On
`October 17, 2023, in advance of the
`depositions of these three witnesses,
`Demaray requested that Samsung
`confirm that its response to
`Demaray's Interrogatory 17
`regarding indemnification remains
`complete and accurate. Despite its
`obligation under Rule 26(e),
`Samsunghasrefused to provide the
`requested confirmation or to
`supplementits response.
`
`On October 25, Demaray served a
`discovery dispute letter regarding
`this issue on Samsung. On
`November 2, Samsungreplied that
`that “circumstances regarding
`indemnity have not changed since
`Samsung served its supplemental
`interrogatory response on September
`20, 2021.” However, Samsung again
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`refused to confirmthatthe—
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`Given the fact that Samsung intends
`to rely upon the testimony of
`Applied witnesses for key issues
`relating to infringement,validity,
`and damages, and has submitted a
`collective 35 pages of witness
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`

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`Case 6:20-cv-00636-ADA Document 438 Filed 12/15/23 Page 3 of 4
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`disclosures on behalf of those
`Applied employee-witnesses,
`Demaray is entitled to information
`regarding indemnification
`obligations between Samsung and
`Applied. Such evidence is relevant
`to at least the issue of witness bias
`arising from their employment by a
`company that has potentially agreed
`to indemnify Samsung. See, e.g.,
`Ziilabs Inc., Ltd. v. Samsung Elecs.
`Co., No. 2:14-cv-203, 2015 WL
`13617214, at *3 (E.D. Tex. Oct. 28,
`2015) (“[I]f Samsung relies on a
`third-party witness whose employer
`has an indemnification agreement
`with Samsung, ZiiLabs may rely on
`the indemnification sections to show
`bias.”); Powell v. Home Depot USA,
`Inc., No. 07-80435-CIV, 2008 WL
`11320008, at *5 (S.D. Fla. June 26,
`2008) (“Because indemnification
`agreements would be relevant as
`potential impeachment evidence, …
`such indemnification agreements
`would be discoverable.”).
`
`1:19-CV-406-DAE, 2020 WL
`5995694, at *1 (W.D. Tex. Oct. 9,
`2020) (motion to compel filed a month
`after the close of fact discovery was
`untimely).
`
`Third, Demaray does not establish
`exceptional circumstances that warrant
`filing a motion to compel more than 14
`days after the close of fact discovery.
`Given that these witnesses were all
`previously disclosed to and deposed by
`Demaray during the fact discovery
`period, there is nothing “late” about
`Samsung’s October 10, 2023 Rule
`26(a)(2)(C) disclosures, which were
`served in accordance with the Federal
`Rules and case schedule. Demaray thus
`fails to establish that there are
`exceptional circumstances that warrant
`the Court taking up this motion after
`the fact discovery deadline. Bob
`Daemmrich Photography, Inc. v.
`Scholastic, Inc., No. 1:15-CV-1150-
`RP, 2018 WL 6265026, at *1 (W.D.
`Tex. Sept. 12, 2018).
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`Relief Requested:
`
`Relief Requested:
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`Samsung respectfully requests that
`Demaray’s motion be denied.
`
`Demaray respectfully requests that
`the Court order Samsung to confirm
`that its response to Interrogatory 17
`is complete and accurate as to the
`current indemnity obligations
`between Samsung and Applied, or
`otherwise supplement its response to
`accurately identify the current
`indemnity obligations.
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`Case 6:20-cv-00636-ADA Document 438 Filed 12/15/23 Page 4 of 4
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`COURT’S RULING
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`On November 7, 2023, the parties in the above-captioned case submitted their discovery
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`dispute chart above to the Court. On November 30, 2023, the Hon. Derek T. Gilliland heard the
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`arguments of the parties regarding this dispute. Having considered the written submissions and
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`arguments of the parties, the Court ORDERS as follows:
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`Given the Court’s understanding of the accuracy of Samsung’s response to Interrogatory
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`No. 17 based upon Samsung’s representations at the hearing, Demaray’s motion is DENIED.
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`SIGNED this 15th day of December, 2023.
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`By: ____________________________________
`HON. DEREK T. GILLILAND
`UNITED STATES MAGISTRATE JUDGE
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