Elan Microelectronics Corporation v. Apple, Inc.
Declaration of Derek C. Walter in Support of 315 MOTION to Shorten Time for Apple's Motion to Compel Elan Employee Depositions in N.D. Cal. filed byApple, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 315 ) (Walter, Derek) (Filed on 6/28/2011)
Monday, June 13, 2011 6:30 PM
Elan Apple Team; Apple Elan WGM Service
RE: Deposition Notices Apple Issued to Elan Employees dated May 23
Thank you for your email. We look forward to receiving dates for the noticed depositions soon. We are also available at
9:30 am on Wednesday to discuss open issues regarding deposition scheduling.
With regard to deposition location, although we are happy to discuss further, we do not see any basis for Elan's position
that the parties' agreement on deposition location is limited only to Elan's claims in this action. Indeed, there is no such
language in the parties' agreement to this effect, nor was this part of the parties' discussions about the agreement.
Indeed, long after Apple filed its counterclaims, the parties' reaffirmed their original agreement in the January 20, 2011
further CMC statement, again without any suggestion from Elan that it would somehow seek to limit the agreement to
only Elan's claims.
As to the location of the Apple's 30(b)(6) deposition specifically, you are mistaken that all of Apple's 30(b)(6) topics
relate only to Apple's counterclaims. In fact, Apple's notice includes topics related to the conception and reduction to
practice of the Elan patents-in-suit, Elan's knowledge of Apple's alleged infringement, marking, and Elan's damages
case. All of these topics relate to Elan's claims, not Apple's. Moreover, even if all of Apple's 30(b)(6) topics related only
to its counterclaims, that still would not provide a basis for abrogating the parties' agreement regarding deposition
In advance of our meet and confer on Wednesday, please let us know why you believe section IV.B of the joint CMC
statement applies only to Elan's claims. If Elan continues to take that position, we will likely need to seek the Court's
From: Bu, Jane [mailto:Jane.Bu@alston.com]
Sent: Friday, June 10, 2011 10:44 AM
To: Mehta, Sonal
Cc: Elan Apple Team; Apple Elan WGM Service
Subject: FW: Deposition Notices Apple Issued to Elan Employees dated May 23
Sonal: thanks for considering our proposal. Elan is currently looking into the availability of these five witnesses and will
be able to provide some dates to you soon. In the meantime, I suggest we have a call next week to discuss the
deposition logistics along the lines you proposed below, particularly with respect to the location of the depositions and
Mr. Lin's deposition timing. I also note that it is Elan's position that Section IV.B of the Joint CMC only applies to Elan's
claims in this action. Indeed, all of the noticed individual witnesses as well as Apple's 30(b)(6) topics only relate to
Apple's counterclaims. Further, to respond to your email regarding Apple's 30(b)(6) deposition notice, yesterday, we
served Elan's responses and objections to the deposition notice. During the same meet and confer next week, I'd like to
also discuss the scope of the topics, the potential designated Elan witnesses, and of course, the deposition
logistics. Please let me know if you are available for the meet and confer on Wed 9:30 am (pdt).
From: Mehta, Sonal [mailto:Sonal.Mehta@weil.com]
Sent: Tuesday, June 07, 2011 8:57 AM
To: Bu, Jane; Greenblatt, Nathan
Cc: Apple Elan WGM Service; Elan Apple Team
Subject: RE: Deposition Notices Apple Issued to Elan Employees dated May 23
We have considered your proposal with respect to Messrs. Yang, Wu and Chen. In an effort to be as efficient as possible
we would consider deposing Mr. Yang first if Elan commits to presenting him sufficiently early that we have an
opportunity to request the depositions of Messrs. Wu and Chen during the discovery period should we decide to
proceed with those depositions, and with Elan's commitment that it will promptly present Messrs. Wu and Chen for
deposition should we make that request. Note that we are agreeing to stage these depositions in this way in the spirit
of efficiency, but are obviously entitled to depose more than one witness in a particular group if that is warranted. Thus,
while we are hopeful we can get the discovery we need from Mr. Yang, we cannot agree to your suggestion that our
request to depose Messrs. Wu and Chen would be subject to Elan's agreement or to a requirement that Mr. Yang was
unable to answer certain questions. Assuming we are in agreement, please promptly provide a deposition date for Mr.
Yang; otherwise, please promptly provide deposition dates for Messrs. Yang, Wu and Chen.
Please also let us know proposed dates for Messrs. Chen and Lin. With respect to Mr. Lin's deposition, the parties
continue to have a dispute as to whether the activities of Elan's IPR document can be shielded under the attorney-client
privilege. That issue is being presented to the Court in conjunction with Apple's May 31st motion to compel, which is
scheduled to be heard on July 5th. If Elan intends to assert privilege over Mr. Lin's activities, it may make sense to
schedule his deposition for shortly after that hearing so that we have the Court's guidance on the privilege issue before
that deposition. Note that we can only agree to defer the deposition until after that hearing if it is confirmed now for a
date promptly after July 5th.
Finally, with respect to location for these depositions, we would be happy to discuss but note that, pursuant to the
parties' agreement as set forth in Section IV.B of the January 20, 2011 Joint CMC Statement, we have been planning to
proceed with the depositions in the Bay Area.
Sonal N. Mehta
Weil, Gotshal & Manges LLP
201 Redwood Shores Parkway
Redwood Shores, CA 94065-1134
+1 650 802 3118 Direct
+1 650 802 3100 Fax
From: Bu, Jane [mailto:Jane.Bu@alston.com]
Sent: Friday, May 27, 2011 6:15 PM
To: Greenblatt, Nathan
Cc: Apple Elan WGM Service; Elan Apple Team
Subject: Deposition Notices Apple Issued to Elan Employees dated May 23
Nathan: I write in response to the deposition notices Apple issued to Elan employees on May 23.
Daisuke Shudo, Roven Lee, Jimmy Liu and Phoenix Lin are no longer employed by Elan. As with the 353 patent
inventors, Elan has no control over their availability to appear for a deposition and Alston+Bird is not currently
representing any of these individuals. The last known addresses of these former employees are as follows:
Roven Lee 李佳益
No. 87, Nan Men Road, South District, Taichung City, Taiwan 402
台中市南區南門里 30 鄰南門路 87 號
Jimmy Liu 劉智民
11F, No. 45, Pao Chung Road, Xindian District, New Taipei City, Taiwan 231
台北縣新店市寶興里寶中路 45 號 11 樓
Phoenix Lin 林維民
9F, No. 42, Lane 431, Ching Ping Road, Zhonghe District, New Taipei City, Taiwan 235
台北縣中和市新南里 46 鄰景平路 431 巷 42 號 9 樓
Mr. Eric Yang, Draco Wu, and Leo Chen are all employees in the same product development group. We would
expect them to have similar, if not identical, information regarding Elan's touchpad products. As such, we
propose to make Mr. Eric Yang available for deposition first. Mr. Yang is the head of the department and,
therefore, may be the most appropriate representative among them. If Mr. Yang were unable to answer
questions on any relevant topic(s), we would agree to make Mr. Wu and/or Mr. Chen available for deposition,
assuming they possess the information that Mr. Yang did not.
We are also looking into Mr. Wen-Jen Chen and Mr. Nick Lin's availability. However, we would like to meet
and confer regarding the locality of all of these depositions (as they related to Apple's counterclaims) and
the scope of deposition with respect to Mr. Lin, a member of Elan's legal department. Most of what Mr.
Lin knows will likely be privileged. We would like to explore ways for Apple to obtain nonprivileged information without having to call this witness, whose deposition will likely be muddled with
disputes over privileges.
Jane H. Bu
Alston & Bird LLP
275 Middlefield Road | Suite 150 | Menlo Park, CA 94025
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