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`1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`*
`DEMARAY LLC
` *
`* CIVIL ACTION NOS.
`*
`*
`*
`
`VS.
`
`
`INTEL CORPORATION
`SAMSUNG ELECTRONICS, ET AL
`
`March 4, 2021
`
`W-20-CV-634
`W-20-CV-636
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`
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`BEFORE THE HONORABLE ALAN D ALBRIGHT
`TELEPHONIC DISCOVERY HEARING
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`APPEARANCES:
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`For the Plaintiff:
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`For Defendant Intel:
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`For Samsung Defendants:
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`Crawford Maclain Wells, Esq.
`Irell & Manella LLP
`1800 Avenue of the Stars, Suite 900
`Los Angeles, CA 90067
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`Richard D. Milvenan, Esq.
`McGinnis Lochridge and Kilgore
`600 Congress Avenue, Suite 2100
`Austin, TX 78701
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`J. Stephen Ravel, Esq.
`Kelly Hart & Hallman LLP
`303 Colorado Street, Suite 2000
`Austin, TX 78701
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`Claire M. Specht, Esq.
`WilmerHale
`60 State Street
`Boston, Massachusetts 02109
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`Brian Christopher Nash, Esq.
`Austin Michael Schnell, Esq.
`Pillsbury Winthrop Shaw Pittman LLP
`401 Congress Avenue, Suite 1700
`Austin, TX 78701-3797
`
`Philip Ou, Esq.
`Yar R. Chaikovsky, Esq.
`Paul Hastings LLP
`1117 South California Avenue
`Palo Alto, CA 94304
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00636-ADA Document 80 Filed 03/10/21 Page 2 of 18
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`2
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`Court Reporter:
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`Kristie M. Davis, CRR, RMR
`PO Box 20994
`Waco, Texas 76702-0994
`(254) 340-6114
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`Proceedings recorded by mechanical stenography, transcript
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`produced by computer-aided transcription.
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00636-ADA Document 80 Filed 03/10/21 Page 3 of 18
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`3
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`DEPUTY CLERK: Discovery hearing in Civil Action
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`6:20-CV-634, styled Demaray LLC versus Intel Corporation, and
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`Case No. 6:20-CV-636, styled Demaray LLC versus Samsung
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`Electronics Company, LTD and others.
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`THE COURT: If I could hear announcements from counsel,
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`and while you're doing that, I'm going to grab a tablet real
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`quick.
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`MR. WELLS: Your Honor, for the plaintiffs Demaray we have
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`Maclain Wells from Irell & Manella and Rick Milvenan from
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`McGinnis Lochridge.
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`THE COURT: Welcome both.
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`MR. RAVEL: Your Honor, for defendant Intel our client
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`representative today is John Edwards. From Paul Hastings we
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`have Phil Ou and Yar Chaikovsky. From WilmerHale we have
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`Claire Specht. And Mr. Ou will be our primary speaker today.
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`THE COURT: Good morning, Mr. Ou.
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`MR. OU: Good morning, Your Honor.
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`THE COURT: And anyone else?
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`MR. NASH: Your Honor, sorry about that. This is Brian
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`Nash with Pillsbury here on behalf of the Samsung defendants.
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`I'm also joined by my colleague Austin Schnell of Pillsbury.
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`And we will also be deferring to Mr. Ou on behalf of Samsung
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`for the speaking role today.
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`THE COURT: Very good. I'm happy to take up your issues.
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`MR. OU: Thank you, Your Honor. Philip Ou for Intel and
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00636-ADA Document 80 Filed 03/10/21 Page 4 of 18
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`4
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`Samsung.
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`Your Honor, just to begin, I know the parties submitted
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`quite a lengthy submission in terms of background. Hopefully
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`that's at least helpful in framing the issues.
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`THE COURT: Yes, sir.
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`MR. OU: I just wanted to orient Your Honor kind of how we
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`got here. Intel and Samsung, as you may remember from our
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`January hearing -- discovery hearing -- we had filed transfer
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`motions back in November. And over the last few months we've
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`been dealing with venue discovery that Demaray has been
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`seeking. That's included, discovery from Applied Materials
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`who's the supplier to Intel and Samsung.
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`And we finally completed that process at the beginning of
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`February when we took the deposition of Applied Materials. And
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`so the day after that Mr. Wells and I and Mr. Ravel and
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`Mr. Nash actually met and conferred to come up with a schedule
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`to make sure we finished venue briefing since we had claim
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`construction deadlines coming up as well. They committed to
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`filing their responsive brief on February 23rd.
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`And on that same day I asked Mr. Wells to look into the
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`availability of Dr. Demaray, who is, as far as I know, the
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`principal of Demaray LLC. But more importantly there's a long
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`history between Dr. Demaray, his predecessor company,
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`Symmorphix, and Applied Materials. Dr. Demaray used to work at
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`Applied Materials' joint venture Applied Komatsu over 20 years
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00636-ADA Document 80 Filed 03/10/21 Page 5 of 18
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`5
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`ago.
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`And there's a host of defenses that Intel and Samsung have
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`raised relating to Dr. Demaray and others' involvement in
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`Applied Materials and the predecessor company. I won't get
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`into the details of the merits of those disputes, but there are
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`those defenses. And we expect there's likely going to be
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`significant and crucial third-party witnesses that were
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`involved in the activities that happened 20 years ago.
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`And so for that reason we noticed, and we asked Mr. Wells
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`to look into availability of Dr. Demaray shortly after they
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`filed their responsive brief so that we can take that
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`deposition and get our reply brief in and get the issue
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`submitted for Your Honor.
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`It's been nearly a month and they've refused to even look
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`into Dr. Demaray's availability. Instead, they've offered at
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`least what we view as a proxy or consultant for Demaray, Brian
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`Marcucci. We don't know what Mr. Marcucci's going to say in
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`the deposition, but we do know that Dr. Demaray has likely
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`significant knowledge, and many instances probably the only
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`relevant knowledge about the relevant witnesses, their
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`involvement and things of that nature.
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`And respectfully, Your Honor, we don't believe it's proper
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`for Demaray to dictate the discovery that we take or the
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`discovery that we seek. They've made an objection. They said
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`that Dr. Demaray's an apex witness. We actually think he's
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00636-ADA Document 80 Filed 03/10/21 Page 6 of 18
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`6
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`quite the opposite apex witness. An apex witness is someone
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`that doesn't have firsthand knowledge of the issues; he seems
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`to be the person with the most knowledge. And for efficiency
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`purposes that's why we noticed his deposition.
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`The only other concern that Mr. Wells and Demaray has
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`raised is, they think that we're going to use this as an
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`opportunity to take merits-based discovery. Your Honor, we
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`have no intention of doing that. We know the rules, and
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`discovery's limited to issues that relate to venue.
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`And, Your Honor, we had a call two days ago where you gave
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`us guidance on how exactly to handle those situations. If they
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`think that we're going out of bounds, they can instruct the
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`witness not to answer. Sometimes the lawyers disagree. I
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`might think the question is within the bounds and Mr. Wells may
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`disagree. And he can make the instruction and risk potentially
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`having the witness come back a second time.
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`But those potential concerns aren't a reason to preclude
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`the defendants from taking the deposition that we noticed and
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`getting the discovery that we need.
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`And so, Your Honor, with that, I don't think that they've
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`met their burden. Your standing order on venue discovery says
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`that it's governed by Rule 26, and I don't think they've made a
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`showing that we shouldn't be able to proceed with Dr. Demaray's
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`deposition.
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`And so, Your Honor, we'd ask that his deposition be
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00636-ADA Document 80 Filed 03/10/21 Page 7 of 18
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`7
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`ordered as soon as possible so that we can complete venue
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`discovery.
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`There are a number of other issues raised in the
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`submission, and if Your Honor has any questions about the
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`details, I'd be happy to answer to answer them.
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`THE COURT: Why don't you go ahead and articulate -- I'm
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`sorry. Why don't you go ahead and articulate specifically
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`the -- what will help me, because I have a feeling I may be
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`hearing from you all again if I order a deposition. Why don't
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`you go ahead and outline for me exactly the areas that -- the
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`question -- the buckets of questions that you'd like to ask
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`this gentleman?
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`MR. OU: Yes, Your Honor. I'll give you a few examples.
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`THE COURT: Okay.
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`MR. OU: And we did provide a number of topics to
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`Mr. Wells and Demaray which we can -- I'd be happy to submit to
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`the Court, Your Honor.
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`But one example is back in 1998 Dr. Demaray left Applied
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`Materials' joint venture, Applied Komatsu, and they formed
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`another company, Symmorphix. As part of that leaving there was
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`an agreement that was made which granted Applied a license to
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`what we believe would cover the patents-in-suit.
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`The parties dispute whether or not that license covers the
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`patent-in-suit. And we're not going to the merits of that
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`argument, but certainly we believe that the people that
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00636-ADA Document 80 Filed 03/10/21 Page 8 of 18
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`8
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`negotiated that license are going to be relevant witnesses.
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`We believe Dr. Demaray was involved. We have some claims
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`of other individuals involved, but we don't know who actually
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`was involved and who's going to have that relevant knowledge.
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`That's something that Dr. --
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`THE COURT: So I get that. I get why you want to talk to
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`him about that. And with respect to how -- I'm assuming the
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`point of this is when you're -- when we're trying to allocate
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`the location of everyone who might be involved for me to weigh
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`the factors, you're -- I'm making this up, but you're going to
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`say we have Joe Smith who was at A&D and he's in Austin, but
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`we've got Mike Taylor and he's going to be involved and he's in
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`New York. But beyond identifying the location of where people
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`are, how in-depth do you anticipate going into what these
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`people might know?
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`MR. OU: Your Honor, we understand that there's a line
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`that gets into merits discovery and just the identification of
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`witnesses. We don't intend to get into the buried details.
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`But, Your Honor, we expect that Dr. Demaray's going to know,
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`for example, who is the person that has more knowledge than
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`others?
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`For example, the people that left Applied Komatsu that
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`went to Symmorphix, there's a handful of those names. I have a
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`feeling that if our reply brief we submit those list of names,
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`they're going to say when we eventually, you know -- if we
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00636-ADA Document 80 Filed 03/10/21 Page 9 of 18
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`argue the motion with Your Honor, they're going to say, well,
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`they haven't said. They don't know which one of these are
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`actually going to be critical trial witnesses. And so that's a
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`point that we need to at least get some understanding from
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`Dr. Demaray, him having been involved personally. And he's
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`probably the only person that is able to tell us that
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`information.
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`And there's a number of other issues related to this that
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`go into other defenses, but all of this is centered around
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`things that happened 20 years ago. There are a large number of
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`former Applied employees that went to Symmorphix. We think
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`that there's a potential ownership defense based on using
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`Applied confidential information. There's also a potential
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`inventorship issue.
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`And again, Your Honor, we're not trying to get into the
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`merits, but I'm sure that if we got too deep into anything that
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`Mr. Wells believed was the merits, he would instruct the
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`witness not to answer. And if we thought that it was
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`inappropriate, we'd potentially raise it with Your Honor. But
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`we're not intending to get into the detailed merits of those
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`issues.
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`THE COURT: Anything else you wanted to add before I hear
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`from Mr. Wells?
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`MR. OU: No, Your Honor, unless you had other questions
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`about those issues.
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00636-ADA Document 80 Filed 03/10/21 Page 10 of 18
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`THE COURT: No. I think I've got a handle on this.
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`Mr. Wells?
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`MR. WELLS: Yes, Your Honor. Thank you.
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`And just to frame the issue one more time, one or two
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`additional details, there's a transfer motion that was filed on
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`November 6th, I believe, of last year. And so discovery needs
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`to be -- a transfer discovery under the Court's standing order
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`needs to be completed by the beginning of next month.
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`In their opening brief plaintiffs didn't cite -- or
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`request any of this discovery. In the opposition brief filed
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`by Demaray we submitted a declaration from Demaray corporate
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`designee, Brian Marcucci, who provided a declaration detailing
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`Demaray documents and witnesses, and stating that Dr. Demaray's
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`committed to appearing before the Court at trial. And Demaray
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`as a company will provide documents to the Court in Waco
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`voluntarily.
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`There was no declaration submitted by Dr. Demaray in
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`support of plaintiff's opposition to the motion to transfer.
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`The defendants submitted a 30(b)(6) notice in addition to
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`a notice for Dr. Demaray. The 30(b)(6) notice has
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`approximately -- or has 20 topics. And we designated Brian
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`Marcucci as the 30(b)(6) witness for Demaray LLC. He's
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`prepared on those topics. He actually coordinated a trip
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`dropping his daughter off in Boston to be back for deposition
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`today, which has been -- and now he's available on March 9th to
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00636-ADA Document 80 Filed 03/10/21 Page 11 of 18
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`testify on the topics noticed.
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`He has spoken with the relevant witnesses, including
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`Dr. Demaray and others and probably has the most comprehensive
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`knowledge of anybody at Demaray regarding those topics and the
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`locations of evidence related thereto. He's ready to go ahead
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`with his deposition.
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`Now, Dr. Demaray is, one, the main named inventor on the
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`patents that are at issue. Two, he's the head of two companies
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`that are at issue, Demaray LLC, the plaintiff, as well as
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`Antropy, which is an ongoing interest of his to continue to
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`develop technologies related to the patents-in-suit for battery
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`applications.
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`And I can't get into the details, but he is -- given that
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`this is public, but he's very active in both those companies
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`and very busy as the head of two companies. He's the
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`definition of an apex witness.
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`Under the case law in this circuit you can't demand a CEO
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`or the head of a company to appear where the requested
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`discovery's readily available from alternative sources.
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`There's no requirement under the federal rules that a 30(b)(6)
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`designee have firsthand knowledge of every piece of evidence
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`they're going to talk about; they prepare for it by speaking
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`with other witnesses. And Brian Marcucci has done that and
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`he's prepared to proceed.
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`The defendants designated individuals for their transfer
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00636-ADA Document 80 Filed 03/10/21 Page 12 of 18
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`discovery at each company that have no firsthand knowledge
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`whatsoever of the technology. They have no involvement with
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`PVD --
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`THE COURT: Mr. Wells?
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`MR. WELLS: Yes.
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`THE COURT: Mr. Wells, let me tell you what I'm going to
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`do. I'm going to give you a choice here. I can understand why
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`the defendants would like to have a chat with this gentleman
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`under oath. I can understand your position equally well. I'm
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`also cognizant of admonitions I've received recently from the
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`people who grade my papers on the correct timing of when I do
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`things. So I'm going to give you the choice.
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`If you believe that the deposition of the corporate
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`representative that you are going to give -- I think you said
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`on March 9th -- is going to be sufficient, I'm willing to allow
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`that as a first step. The defendants can take that deposition.
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`If they come to me with the deposition though and are able to
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`establish to me that they should have -- is it Dr. Demaray?
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`MR. WELLS: Yes.
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`THE COURT: If they establish that Dr. Demaray is
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`necessary to be deposed, then I probably will push back some of
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`these deadlines a little bit to allow that to happen first so I
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`can get everything in on the motion to transfer. Because I
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`definitely want to stay -- I want to do that in the way that
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`I'm trying to be as respectful as I can what the circuit has
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00636-ADA Document 80 Filed 03/10/21 Page 13 of 18
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`13
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`admonished me.
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`So if you believe that your corporate representative can
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`adequately provide the equivalent information that these
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`defendants need for their motion to transfer, I'm happy to let
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`you do that first. But I'm -- with no prejudice to Samsung and
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`Intel coming back to me and saying, you know, we need -- we
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`still need information that only Dr. -- the Doctor can provide.
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`So that's what I'm going to do here.
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`And so the defendants are hearing me. If this winds up
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`disadvantaging you, then I will make up for it on the timing.
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`I'll push back the deadlines for the motion to transfer, and
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`I'm going to push back all the other deadlines too, including
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`probably the Markman and the briefing for that.
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`But Mr. Wells, does that satisfy you?
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`MR. WELLS: Yes, Your Honor. I would simply add that we
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`have the 20 noticed 30(b)(6) topics for Mr. Marcucci who's
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`prepared on those. And if defendants have other specific
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`topics that they want him prepared on, let us know in the next
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`couple days and we'll get him prepared on those as well.
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`THE COURT: And, Mr. Wells, have you taken depositions
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`during this process, either Intel or Samsung, on discovery
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`depositions?
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`MR. WELLS: Yes, Your Honor. We have.
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`THE COURT: And how long -- did I set a deadline for --
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`whatever the amount of time was that I allowed you or that you
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00636-ADA Document 80 Filed 03/10/21 Page 14 of 18
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`agreed to the 30(b)(6) for the depositions you took of Intel
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`and Samsung should apply to this gentleman as well.
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`MR. WELLS: Just to be clear, Your Honor, we didn't have
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`set deadlines. I believe those 30(b)(6) depositions each
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`lasted about four hours. But there were three of them because
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`there was Samsung, Intel and Applied Materials.
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`THE COURT: Got it. Well, Mr. Wells, I would certainly
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`not try and win the battle of cutting off the length of time on
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`30(b)(6) to lose the war of me saying someone else might need
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`to testify. On the other hand, you know, a 30(b)(6) is a
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`30(b)(6).
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`Let me also admonish -- and I'm always careful to do this
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`with lawyers of this quality, because I know you are so
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`exceptional. But what I found was very -- and I get it,
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`there's already been a round of these where the plaintiff got
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`to take the deposition, so I understand that.
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`But what might be very helpful for Samsung and Intel to
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`both get the information that they want, but also to help me
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`were you to come back to me, is to give Mr. Wells a preview of
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`the questions that you're going to ask -- I'm not limiting you
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`to them. He doesn't get to say, oh, you didn't tell me you
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`were going to ask that. But I'm just saying if you give him in
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`advance an outline of questions that you're going to want the
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`30(b)(6) -- not just the topics because then you get a fight
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`and you say, oh, I said "development" and this has -- this is
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00636-ADA Document 80 Filed 03/10/21 Page 15 of 18
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`"development."
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`If you give him a preview of what you want the 30(b)(6) to
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`answer, that way when you -- if you have to come back to me,
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`I'm going to have a roadmap and see which of the questions you
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`wanted information from this gentleman for that you might then
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`say, he wasn't able to give it to us. We think this is
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`necessary for our motion, and we want the Doctor to answer
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`these questions. So that will save everyone the time of this
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`30(b)(6) witness saying, oh, I wasn't prepared. I didn't know
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`you wanted to know that.
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`The better job the defendants do -- but you don't have to
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`do this. I mean, you all do it however you want. But I'm
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`telling you it was something I used to do to avoid the other
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`side being able to say, we didn't know you were -- I mean, this
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`isn't a fact witness where you're hoping you can, you know, do
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`your magic at a deposition.
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`This is one where you -- I'm assuming, Mr. Ou, you know,
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`you would tell him now, look, I'm going to want to know this.
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`And have that witness prepared. And if I find that -- it'll
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`help me in either direction. If I find that you gave him a
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`good outline of questions and this witness, as a result of
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`that, was able to answer all those questions for you, well,
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`then we might not need the Doctor, because he will have had
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`that information.
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`So the better you all cooperate going in, the better job
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00636-ADA Document 80 Filed 03/10/21 Page 16 of 18
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`I'll do of grading the papers of the 30(b)(6) on how he did and
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`whether there's another deposition. Does that make sense?
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`MR. WELLS: Yes, Your Honor.
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`MR. OU: Yes, Your Honor.
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`THE COURT: Okay. But of course you all are -- you know,
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`it's -- I don't tell my wife how to drive. She's an adult,
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`and, you know, I would get in trouble. So it's entirely up to
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`you all what you do. I'm just forecasting for you what I
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`think, given this unique set of facts -- I understand, Mr. Ou,
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`why you want this gentleman's deposition. I'm sympathetic to
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`that.
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`And you may get, Mr. Wells, I understand why he's very
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`busy and someone else can provide all the relevant information
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`and you don't have to schedule him. I'm sympathetic to that.
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`So if I can do everything I can -- if you can get for
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`Samsung and Intel all the information that they would be
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`entitled to from the Doctor through this 30(b)(6), then we'll
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`move on. If we can't, then we'll deal with it.
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`And as soon as you're done with the transcript -- the
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`deposition and you have the transcript, you know, I will be
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`prepared to hear -- to set another hearing really quickly.
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`Okay?
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`MR. WELLS: Yes, Your Honor.
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`THE COURT: Anything else we can take up?
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`MR. OU: No, Your Honor. Thank you. Appreciate the
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00636-ADA Document 80 Filed 03/10/21 Page 17 of 18
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`guidance.
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`THE COURT: Okay. Very good. You all have a wonderful
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`day. I hope at least with the Austin people I see you sooner
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`rather than later in person.
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`And Mr. Ravel, you don't look much worse for the wear
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`having worked as hard as I know you did over the past couple of
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`weeks. So, you know, you're more industrial strength than I
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`am. I'm still tired.
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`So you all have a good day and be safe out there. Take
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`care.
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`(Hearing adjourned at 9:50 a.m.)
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00636-ADA Document 80 Filed 03/10/21 Page 18 of 18
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`UNITED STATES DISTRICT COURT )
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`WESTERN DISTRICT OF TEXAS
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`)
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`I, Kristie M. Davis, Official Court Reporter for the
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`United States District Court, Western District of Texas, do
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`certify that the foregoing is a correct transcript from the
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`record of proceedings in the above-entitled matter.
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`I certify that the transcript fees and format comply with
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`those prescribed by the Court and Judicial Conference of the
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`United States.
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`Certified to by me this 10th day of March 2021.
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`
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`
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`/s/ Kristie M. Davis
`KRISTIE M. DAVIS
`Official Court Reporter
`800 Franklin Avenue
`Waco, Texas 76701
`(254) 340-6114
`kmdaviscsr@yahoo.com
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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