Case 3:14-cv-00757-REP-DJN Document 735 Filed 01/28/16 Page 1 of 7 PageID# 38818
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE EASTERN DISTRICT OF VIRGINIA
`
`CLL'^ '
`
`Richmond Division
`
`JAN 28 2016
`
`SAMSUNG ELECTRONICS CO., LTD.,
`
`Plaintiff,
`
`V.
`
`Civil Action No. 3:14cv757
`
`NVIDIA CORPORATION,
`et al.,
`
`Defendants.
`
`MEMORANDUM OPINION
`
`This matter
`
`is before the Court on DEFENDANTS' MOTION TO
`
`SUPPLEMENT DEFENDANTS' WITNESS LIST (Docket No. 677).
`
`For
`
`the
`
`foregoing reasons,
`
`the motion has been denied (see ORDER, Docket
`
`No. 692).
`
`BACKGROUND
`
`An
`
`important
`
`issue in this case is whether
`
`the defendant,
`
`NVIDIA Corporation ("NVIDIA")^ is liable for pre-suit damages if
`
`it
`
`is
`
`found
`
`to have
`
`infringed the
`
`6,287,902
`
`and
`
`8,252,675
`
`patents.
`
`A key
`
`component of
`
`that determination is whether
`
`NVIDIA
`
`controlled
`
`its
`
`supplier,
`
`Taiwan
`
`Semiconductor
`
`Manufacturing Co.
`
`('^TSMC") .
`
`On December 16, 2015,
`
`the Court
`
`issued a Memorandum Opinion
`
`(Docket No.
`
`602)
`
`that,
`
`inter alia, outlined the kind of proof
`
`and Velocity Holdings,
`Inc.
`^ The other defendants. Old Micro,
`LLC, have been dismissed upon agreement of the parties.
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE EASTERN DISTRICT OF VIRGINIA
`
`CLL'^ '
`
`Richmond Division
`
`JAN 28 2016
`
`SAMSUNG ELECTRONICS CO., LTD.,
`
`Plaintiff,
`
`V.
`
`Civil Action No. 3:14cv757
`
`NVIDIA CORPORATION,
`et al.,
`
`Defendants.
`
`MEMORANDUM OPINION
`
`This matter
`
`is before the Court on DEFENDANTS' MOTION TO
`
`SUPPLEMENT DEFENDANTS' WITNESS LIST (Docket No. 677).
`
`For
`
`the
`
`foregoing reasons,
`
`the motion has been denied (see ORDER, Docket
`
`No. 692).
`
`BACKGROUND
`
`An
`
`important
`
`issue in this case is whether
`
`the defendant,
`
`NVIDIA Corporation ("NVIDIA")^ is liable for pre-suit damages if
`
`it
`
`is
`
`found
`
`to have
`
`infringed the
`
`6,287,902
`
`and
`
`8,252,675
`
`patents.
`
`A key
`
`component of
`
`that determination is whether
`
`NVIDIA
`
`controlled
`
`its
`
`supplier,
`
`Taiwan
`
`Semiconductor
`
`Manufacturing Co.
`
`('^TSMC") .
`
`On December 16, 2015,
`
`the Court
`
`issued a Memorandum Opinion
`
`(Docket No.
`
`602)
`
`that,
`
`inter alia, outlined the kind of proof
`
`and Velocity Holdings,
`Inc.
`^ The other defendants. Old Micro,
`LLC, have been dismissed upon agreement of the parties.
`
`
`
`Case 3:14-cv-00757-REP-DJN Document 735 Filed 01/28/16 Page 2 of 7 PageID# 38819
`
`that
`
`could
`
`be
`
`used
`
`to
`
`show whether
`
`NVIDIA
`
`controls
`
`the
`
`manufacturer of
`
`a
`
`product
`
`that
`
`is
`
`alleged to infringe
`
`two
`
`patents-in-suit
`
`in this action.
`
`Thereafter,
`
`on December 29,
`
`2015, Samsung Electronics Co., Ltd.
`
`(''Samsung") moved to amend
`
`the Final Pretrial Order
`
`to supplement
`
`its designations of
`
`the
`
`discovery provided by NVIDIA that was
`
`to be used at
`
`trial.
`
`Specifically,
`
`Samsung wanted
`
`to
`
`add NVIDIA's
`
`response
`
`to
`
`Interrogatory No.
`
`10
`
`(Docket No.
`
`610).
`
`Samsung's motion was
`
`granted by Order entered on January 15,
`
`2016
`
`(Docket No.
`
`659)
`
`("January 15 Order).
`
`That Order also contained the following
`
`provisions:
`
`the granting
`If the Defendants perceive that
`of
`this motion and the adding of
`the Answer
`[to
`Interrogatory No.
`10]
`to the matters
`that
`will
`be
`received
`in
`evidence
`necessitate,
`on their part,
`the addition of
`other designations or of other evidence,
`it
`is further ORDERED that:
`(i)
`they shall
`...
`file
`a motion
`to
`that
`effect,
`therein
`identifying
`specifically
`the
`proposed
`additional
`evidence
`or
`designation,
`and
`shall file a supporting brief explaining the
`need for
`the addition sought
`in the motion.
`
`A
`
`briefing
`
`scheduled
`
`was
`
`established
`
`for
`
`submission
`
`of
`
`additional designations. Oral argument was heard on January 19,
`
`2016.
`
`In response to that authorization in the January 15 Order,
`
`NVIDIA
`
`filed a motion
`
`seeking
`
`to
`
`add
`
`its Executive Vice
`
`President
`
`of Operations, Debora Shoquist,
`
`as
`
`a witness
`
`to
`
`
`
`Case 3:14-cv-00757-REP-DJN Document 735 Filed 01/28/16 Page 3 of 7 PageID# 38820
`
`testify about
`
`the statements that were made in NVIDIA's
`
`response
`
`to Interrogatory No. 10 and the context for the response.
`
`DISCUSSION
`
`Samsung
`
`contends
`
`that,
`
`under
`
`the
`
`test
`
`in Koch
`
`v. Koch
`
`Inds.,
`
`Inc., 203 F.2d 1202, 1222 (lOth Cir. 2000), Fed. R. Civ.
`
`P.
`
`16(e) permits
`
`amendment of
`
`a Final Pretrial Order only to
`
`prevent manifest
`
`injustice,
`
`and
`
`that NVIDIA has
`
`not
`
`shown
`
`manifest
`
`injustice.
`
`Both parties agree that
`
`the decision in
`
`Koch provides
`
`the
`
`appropriate measure
`
`for
`
`assessing NVIDIA's
`
`motion to amend the Final Pretrial Order
`
`to add Ms. Shoquist as
`
`a witness.
`
`Those factors are:
`
`'Ml) prejudice or surprise to
`
`the party opposing trial of
`
`the issue;
`
`(2)
`
`the ability of
`
`that
`
`party to cure any prejudice;
`
`(3) disruption to the orderly and
`
`efficient trial of
`
`the case by inclusion of
`
`the new issue;
`
`and
`
`(4) bad faith by the party seeking to modify the order."
`
`Koch
`
`v. Koch
`
`Indus.,
`
`Inc.,
`
`203 F.2d at 1222.
`
`Of course,
`
`in this
`
`case,
`
`the proposed amendment
`
`to the Final Pretrial Order does
`
`not
`
`involve the addition of a new issue, but rather the addition
`
`of
`
`a
`
`new witness
`
`to address
`
`an existing issue.
`
`Nonetheless,
`
`both parties agree that the Koch analysis applies here.
`
`1. Whether There Is Surprise Or Prejudice
`
`The
`
`record is clear
`
`that
`
`Samsung was
`
`surprised by
`
`the
`
`addition of Ms. Shoquist as a potential witness because she had
`
`
`
`Case 3:14-cv-00757-REP-DJN Document 735 Filed 01/28/16 Page 4 of 7 PageID# 38821
`
`never
`
`been disclosed,
`
`under
`
`Fed.
`
`R. Civ.
`
`P.
`
`26(a),
`
`as
`
`a
`
`knowledgeable person on any issue.
`
`NVIDIA provided its initial
`
`disclosures under Rule 26(a) and provided three updates thereto,
`
`and Ms. Shoquist's name did not appear on any of
`
`the updates.
`
`To the contrary,
`
`the persons identified in the updated response
`
`who were
`
`identified to testify about
`
`the relationship between
`
`TSMC and NVIDIA was John Montrym and Dr.
`
`James Chen.
`
`Further, when NVIDIA was called upon to designate,
`
`under
`
`Fed.
`
`R.
`
`Civ.
`
`P.
`
`30(b) (6),
`
`a witness
`
`to
`
`testify on
`
`the
`
`relationship between NVIDIA and TSMC,
`
`including the contracts
`
`and agreements with that company. Dr. Chen was designated as the
`
`person to testify, not Ms. Shoquist.
`
`Finally, at oral argument,
`
`NVIDIA's counsel acknowledged that
`
`there are four witnesses who
`
`are to testify about
`
`the topic for which Mr. Shoquist
`
`is now
`
`tendered.
`
`On
`
`this
`
`record,
`
`it
`
`is
`
`clear
`
`that
`
`Samsung was
`
`surprised by the naming of Ms. Shoquist.
`
`Also,
`
`it appears
`
`that Samsung will be prejudiced by the
`
`addition of
`
`testimony from a witness whose
`
`identity was never
`
`disclosed as pertinent
`
`to the
`
`issue of whether NVIDIA has
`
`control over TSMC sufficient
`
`to call
`
`into play the obligation of
`
`NVIDIA for pre-suit damages.
`
`See U.S.C. §§ 287(b). Having taken
`
`depositions of the Rule 30(b)(6) deponents and the other people
`
`who have knowledge of
`
`the topic, Samsung has prepared its case,
`
`and
`
`granting
`
`this motion would
`
`require
`
`Samsung
`
`to
`
`take
`
`
`
`Case 3:14-cv-00757-REP-DJN Document 735 Filed 01/28/16 Page 5 of 7 PageID# 38822
`
`depositions
`
`on
`
`eve of
`
`trial
`
`(jury selection is
`
`to occur
`
`on
`
`January 21, 2016 and the trial is to start on January 25, 2016).
`
`The tendering of a never-before identified witness on this topic
`
`prejudices Samsung.
`
`2. Whether The Prejudice Can Be Cured
`
`At
`
`this
`
`stage of
`
`the proceedings,
`
`it
`
`is difficult
`
`to
`
`perceive how the prejudice of having a previously unidentified
`
`witness brought
`
`to the fore can be cured.
`
`It
`
`is true that
`
`the
`
`Court
`
`could allow deposition of
`
`that
`
`person
`
`and
`
`that
`
`that
`
`process would provide some ability to cross-examine the witness.
`
`However, because discovery is closed, Samsung would not be able
`
`to pursue additional paths of discovery that her testimony might
`
`reveal.
`
`Nor would the proximity of
`
`trial
`
`allow for
`
`such a
`
`cou r s e .
`
`The Amendment Would Disrupt
`3. Whether
`Efficient Trial
`
`An Orderly And
`
`The
`
`keystone of
`
`an efficient
`
`trial
`
`is preparation and
`
`preparation for
`
`this
`
`trial has been underway
`
`for
`
`some
`
`time.
`
`Commencement of
`
`the trial
`
`is only a
`
`few days away and it would
`
`disrupt
`
`the orderly and efficient
`
`conduct
`
`of
`
`the
`
`trial
`
`to
`
`require adjustment of
`
`the trial preparations to accommodate the
`
`testimony of this new witness on this topic.
`
`
`
`Case 3:14-cv-00757-REP-DJN Document 735 Filed 01/28/16 Page 6 of 7 PageID# 38823
`
`4. Whether NVIDIA Acted In Bad Faith
`
`Samsung contends that NVIDIA has acted in bad faith because
`
`it
`
`is identifying a witness
`
`to replace others who may not be
`
`effective as
`
`she is in providing testimony.
`
`The Court cannot
`
`make
`
`such a conclusion.
`
`The record reflects that,
`
`in response
`
`to the provision in the Order granting NVIDIA the opportunity to
`
`add
`
`a
`
`previously
`
`sworn-to
`
`interrogatory
`
`response,
`
`NVIDIA
`
`assessed whether
`
`it needed another witness
`
`and presented its
`
`case
`
`in good
`
`faith to the Court.
`
`This
`
`factor
`
`therefore
`
`certainly does not cut against NVIDIA in the Koch analysis.
`
`Although not one of
`
`the Koch
`
`factors
`
`that are considered
`
`when assessing whether not allowing the witness to be added will
`
`work
`
`a manifest
`
`injustice,
`
`it
`
`seems necessary to assess
`
`the
`
`impact on NVIDIA of a decision denying its motion.
`
`The record
`
`shows
`
`that denial
`
`of
`
`the motion will
`
`not
`
`adversely affect
`
`NVIDIA.
`
`NVIDIA acknowledges
`
`that
`
`there are perhaps
`
`four witnesses
`
`(and definitely two) whom it will call
`
`to testify about
`
`the
`
`issue of control as it is presented in the context of
`
`the pre-
`
`suit
`
`damages
`
`issue.
`
`And,
`
`at oral
`
`argument
`
`on
`
`the motion,
`
`counsel for NVIDIA candidly acknowledged that Ms. Shoquist would
`
`say
`
`nothing
`
`that was
`
`not
`
`to be
`
`presented by
`
`these
`
`other
`
`previously identified witnesses.
`
`Under
`
`the circumstances,
`
`the
`
`
`
`Case 3:14-cv-00757-REP-DJN Document 735 Filed 01/28/16 Page 7 of 7 PageID# 38824
`
`Court cannot conclude that denial of
`
`the motion will prejudice
`
`NVIDIA.
`
`CONCLUSION
`
`For the foregoing reasons, and because NVIDIA has not
`
`shown
`
`that
`
`amendment of
`
`the Final Pretrial Order
`
`is necessary to
`
`prevent manifest
`
`injustice,
`
`DEFENDANTS' MOTION TO SUPPLEMENT
`
`DEFENDANTS' WITNESS LIST {Docket No. 677} has been denied.
`
`I t is so ORDERED.
`
`/s/
`
`/2^
`
`Robert E. Payne
`Senior United States District Judge
`
`Richmond, Virginia
`Date:
`January 27, 2016
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