Elan Microelectronics Corporation v. Apple, Inc.

Filing 316

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)

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EXHIBIT A From: Sent: To: Cc: Subject: Walter, Derek Monday, June 13, 2011 6:30 PM Bu, Jane Elan Apple Team; Apple Elan WGM Service RE: Deposition Notices Apple Issued to Elan Employees dated May 23 Jane: 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 location. 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 immediate intervention. Thanks, Derek 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). 1 Best, Jane 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 Jane, 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. Best, Sonal N. Mehta Weil, Gotshal & Manges LLP 201 Redwood Shores Parkway Redwood Shores, CA 94065-1134 sonal.mehta@weil.com +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 2 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. Best, Jane H. Bu Alston & Bird LLP 275 Middlefield Road | Suite 150 | Menlo Park, CA 94025 650-838-2019 Direct 650-838-2001 Fax ******************************************************* IRS Circular 230 disclosure: To ensure compliance with requirements imposed by the IRS and other taxing authorities, we inform you that any tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties that may be imposed on any taxpayer or (ii) 3 promoting, marketing or recommending to another party any transaction or matter addressed herein. ______________________________________________________ NOTICE: This e-mail message and all attachments transmitted with it may contain legally privileged and confidential information intended solely for the use of the addressee. If the reader of this message is not the intended recipient, you are hereby notified that any reading, dissemination, distribution, copying, or other use of this message or its attachments is strictly prohibited. If you have received this message in error, please notify the sender immediately by telephone (404-8817000) or by electronic mail (postmaster@alston.com), and delete this message and all copies and backups thereof. Thank you. The information contained in this email message is intended only for use of the individual or entity named above. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited If you have received this communication in error, please immediately notify us by email (postmaster@weil.com), and destroy the original message. Thank you. 4

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