LG ELECTRONICS U.S.A., INC. et al v. WHIRLPOOL CORPORATION et al

Filing 180

MEMORANDUM OPINION (REDACTED PUBLIC VERSION). Signed by Chief Judge Garrett E. Brown, Jr on 6/14/2011. (gxh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
__________________________________________
)
LG ELECTRONICS U.S.A., INC. AND
)
LG ELECTRONICS, INC.,
)
)
Plaintiffs,
)
)
v.
) Civil Action No. 09-5142 (GEB-ES)
)
WHIRLPOOL CORP. AND ANCHOR
)
MEMORANDUM OPINION
APPLIANCE, INC.,
)
REDACTED PUBLIC VERSION
)
Defendants.
)
__________________________________________)

BROWN, Chief Judge
This matter comes before the Court on Whirlpool Corporation’s appeals (D.E. 121,
145, and 146) from Magistrate Judge Esther Salas’ decision finding that certain transcript

designations were confidential and that certain of LG’s responses to requests for admissions
were appropriate and should not be deemed admitted. (D.E. 134). 1 LG Electronics U.S.A., has
opposed the appeals. The Court has reviewed the parties’ submissions and decided the motion
without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons set forth
below, Judge Salas’ decision is affirmed in part and reversed in part.

1

Whirlpool filed the first appeal of Judge Salas’ order prior to the order’s entry on the docket. However, in the
interest of facilitating the progress of the case, the Court will consider the motion despite that procedural defect.

1

I.

BACKGROUND
This is a patent infringement case involving four patents directed toward certain

refrigerators and refrigerator systems. Plaintiffs filed this case on October 7, 2009, and the case
proceeded without relevant event until, on June 25, 2010, November 3, 2010, and January 14,
2011, Whirlpool sought inter-partes reexaminations challenging the validity of the patents before
the Patent Office (“PTO”). (See D.E. 67, 73, 75). Since that time, the parties have conducted
parallel proceedings before the PTO and this Court. The parties have frequently cited the current
proceedings before the PTO to this Court, and this appeal arises, in part, because Whirlpool
wishes to disclose to the PTO information obtained in this action.
The parties recently stipulated to a protective order. In the section of the order setting
forth its purposes, the order cites concern about the confidentiality of certain information:
Whereas [LG] and [Whirlpool] are currently litigating the present patent
infringement action, which is likely to involve discovery of documents and
testimony containing trade secrets and other confidential research,
development, and commercial information of the parties to this action and third
parties . . . and commercially sensitive information relating to business
strategies, manufacturing and distribution capabilities, costs, pricing,
profitability, customers, suppliers, and other business and financial data.
(Confidentiality Order at 1; D.E. 119). The order explains that this concern is based upon an
irreparable harm to the legitimate business interests of the parties if third parties are able to
access this information. (Id. at 2). The order further explains that information designated by the
producing party as confidential shall remain so designated until a challenge results in a court
order removing the designation. (Id. at 3, 4, 7). However, the order nonetheless requires that the
burden of showing that the designated material is confidential remains on the party who makes
that designation. (Id. at 3, 4, 7, 12).

2

The Confidentiality Order further explains that its terms apply where a party in good faith
represents that the information is not in the public domain and it:
contain[s] any trade secrets within the meaning of the Uniform Trade Secrets
Act or other confidential or proprietary information, including, without
limitation, financial, strategic, research, development, manufacturing costs or
other costs of doing business, technical, personal or commercial information,
or any other information not normally revealed to third parties or, if revealed to
third parties, is such that the Producing Party would require that the material be
held in confidence.
(Id. at 4-5). The order sets forth that the receiving party shall use any information designated
Confidential for no other purpose other than the preparation, trial and appeal of this case, except
based on further order of the Court.
II.

DISCUSSION
A.

Standard of Review

Pursuant to 28 U.S.C. § 636(b)(1)(A), Federal Rule of Civil Procedure 72(a), and Local
Civil Rule 72.1(a), a United States Magistrate Judge may hear non-dispositive motions. “A
magistrate judge's ruling on a non-dispositive matter such as a discovery motion is entitled to
great deference and is reversible only for abuse of discretion.” Eisai Co. v. Teva Pharms. USA,
Inc., 629 F.Supp.2d 416, 433–34 (D.N.J. 2009). On appeal, a district court may modify or set
aside a magistrate judge's non-dispositive order only if the ruling was “clearly erroneous or
contrary to law.” Fed.R.Civ.P. 72(a); L. Civ. R. 72.1(c)(1)(A); see also Haines v. Liggett Group
Inc., 975 F.2d 81, 91 (3d Cir. 1992); Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1113 (3d
Cir. 1986).
A ruling is clearly erroneous “when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite and firm conviction that a mistake
has been committed.” Dome Petroleum Ltd. v. Employers Mut. Liab. Ins. Co., 131 F.R.D. 63, 65
3

(D.N.J. 1990) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92
L.Ed. 746 (1948)). A magistrate judge's order is contrary to law “when the magistrate judge has
misinterpreted or misapplied the applicable law.” Doe v. Hartford Life & Accident Ins. Co., 237
F.R.D. 545, 548 (D.N.J. 2006) (citing Pharm. Sales & Consulting Corp. v. J.W.S. Delavau Co.,
106 F.Supp.2d 761, 764 (D.N.J. 2000)). While a magistrate judge's decision typically is entitled
to deference, “a magistrate judge's legal conclusions on a non-dispositive motion will be
reviewed de novo.” Eisai, 629 F.Supp.2d, 434.
B.

Analysis

Whirlpool appeals two aspects of Judge Salas’ rulings below. First, Whirlpool appeals
Judge Salas’ decision that LG’s responses to Requests for Admissions (“RFAs”) were
appropriate. Second, Whirlpool appeals Judge Salas’ determination that certain portions of the
Sung Hoon Chung deposition are confidential. This Court finds that Judge Salas did not abuse
her discretion in finding LG’s responses were appropriate and should not be deemed admitted
and on several of the confidentiality designations, but disagrees with Judge Salas’ application of
the law when dealing with three of the passages designated as confidential.
1. RFA Responses
According to Federal Rule of Civil Procedure 36,
(1) Scope. A party may serve on any other party a written request to admit, for
purposes of the pending action only, the truth of any matters within the scope
of Rule 26(b)(1)
....
(4) Answer. If a matter is not admitted, the answer must specifically deny it or
state in detail why the answering party cannot truthfully admit or deny it. A
denial must fairly respond to the substance of the matter; and when good faith
requires that a party qualify an answer or deny only a part of a matter, the
answer must specify the part admitted and qualify or deny the rest. The
answering party may assert lack of knowledge or information as a reason for
4

failing to admit or deny only if the party states that it has made reasonable
inquiry and that the information it knows or can readily obtain is insufficient to
enable it to admit or deny.
....
(6) Motion Regarding the Sufficiency of an Answer or Objection. The
requesting party may move to determine the sufficiency of an answer or
objection. Unless the court finds an objection justified, it must order that an
answer be served. On finding that an answer does not comply with this rule,
the court may order either that the matter is admitted or that an amended
answer be served.
In other words, a response is proper if it “fairly respond[s] to the substance of the matter.” A
partial denial is proper if “good faith requires the party qualify an answer or deny only party of
the matter,” and if it specifies the portions of the RFA that it agrees with and the portions that it
denies.
Here, Whirlpool’s RFA Nos. 64-66, 69, 70, and 72 request that LG admit that “LG did
not Disclose [a certain reference] to the United States Patent and Trademark Office in connection
with the prosecution of [certain patent applications].” Whirlpool defined “Disclose” to mean
“bringing a patent, publication, application, or other information to the attention of the United
States Patent and Trademark Office during the pendency of a patent application by listing the
patent, publication, application, or other information in an Information Disclosure Statement
submitted to the United States Patent and Trademark Office.” (Whirlpool RFA at 4).
LG responded as follows:
LGE obejcts [sic] to the definition of the term “Disclose.” Without waiving
and except as objected to in the foregoing objections and General Objections,
LGE responds that the [certain reference], contained in Exhibit A2, was not
listed in an Information Disclosure Statement submitted to the United States
Patent and Trademark Office during the prosecution of the [certain patent]
applications. Except as stated in its response, LGE denies this request.

5

(LG’s response to RFA at 25-29). Essentially, LG agreed that no person raised the references to
the patent office; however, it objected to the definition of “disclose.”
Judge Salas was well within her discretion to find that this was an appropriate response.
LG’s response fairly responded to the substance of the matter by explaining that the references
were not listed in an Information Disclosure Statement (“IDS”) and thus were not directly
considered by the Patent Office. Further, Judge Salas’ determination that LG could parse
portions that it admitted and portions it would not admit was not an abuse of discretion.
While LG’s response splits a hair pretty finely, it had good reason to be careful. The
word “disclose” implies a duty to disclose. However, LG itself had no such duty – it was only
the people involved in the patent prosecution that had such a duty. See 37 C.F.R.1.56(c).
Further, a person is only under such a duty to disclose to the PTO if the material is known to such
person and is material to patentability. See 37 C.F.R.1.56(a) (“. . . a duty to disclose to the
Office all information known to that individual to be material to patentability . . .”). LG’s
admission that the people involved in the prosecution of this patent did not provide these
references in an IDS does not also require LG to imply that it should have provided them. LG
admitted these statements to the extent that was appropriate and Whirlpool may use that
admission at trial. As such, Judge Salas did not abuse her discretion when she found that these
responses were appropriate. See Eisai Co., 629 F.Supp.2d at 433–34. 2

2

This Court agrees that LG has written the responses in the passive voice, which makes it seem as if the company
had little to do with the patent and could have had no duty to disclose. However, in light of the fact that LG itself
had no duty of disclosure (only those persons involved in the patent prosecution), Judge Salas’ ruling was not an
abuse of discretion.

6

2. Confidentiality Designations of the Chung Deposition
However, in light of LG’s burden to show that the designated portions of the deposition
were confidential, it clearly failed to make such a showing on some of the passages designated.
“In order to override the common law right of access, the party seeking the closure of a hearing
or the sealing of part of the judicial record bears the burden of showing that the material is the
kind of information that courts will protect and that disclosure will work a clearly defined and
serious injury to the party seeking closure.” In re Cendant Corp., 260 F.3d 183, 194 (3d. Cir.
2001) (internal quotations omitted). “In delineating the injury to be prevented, specificity is
essential. Broad allegations of harm, bereft of specific examples or articulated reasoning, are
insufficient.” Id. (internal citations and quotations omitted). In determining access, “[t]he strong
common law presumption of access must be balanced against the factors militating against
access. The burden is on the party who seeks to overcome the presumption of access to show
that the interest in secrecy outweighs the presumption.” Id.
LG’s argument in an attempt to carry this burden was manifestly insufficient, as it
consisted entirely of “[b]road allegations of harm, bereft of specific examples or articulated
reasoning,” which is insufficient under Third Circuit law. See In re Cendant Corp., 260 F.3d at
194. The only argument LG advanced to carry its burden of showing harm was that:
Whirlpool’s request is contradicted by the transcript itself, which plainly
reveals LGE’s nonpublic and internal “trade secrets [and] other confidential or
proprietary information, including . . . strategic, research, [and] development . .
. information.”
(Joint Letter Brief, D.E. 116 at 7). This is exactly the type of broad statement of harm that is
insufficient to carry the burden of harm – LG cites no specific harm, but merely conclusorily
states that the transcript “plainly reveals” the confidential information.
7

The declarations supporting these statements in LG’s motion to seal and in its letter to
Judge Salas fare somewhat better, but in some cases the confidential issues alleged are not borne
out in the passages designated. Jae-Oak Kho’s declaration in support of a discovery letter to
Judge Salas states that
The portions of [the deposition] that were designated confidential and/or
proprietary to LGE – specifically, highly-sensitive information concerning
design and/or research information relating to the development of LGE’s
French door refrigerators, including the contributions of specific LGE
personnel to such work and the areas of respective expertise. Such information
is highly confidential. 3
(D.E. 99-2 at ¶7). The Court agrees that information concerning the design of commercial
embodiments would create prejudice if disclosed to the public. Further, the Court agrees that the
contributions and areas of expertise of people working on the project might ease the burden of a
competitor attempting to reverse engineer LG’s refrigerators because the competitor would know
what type of team it should assemble. However, in several of the passages, these concerns are
not borne out.
a.

Passage 1

The statements, and context where necessary, are reproduced below. The statements that
LG designated as confidential are highlighted, whereas the context required appears without
highlighting.
Q: Okay. How long did this interview with Mr. Lee and Mr. Kim last?
A: I can’t remember exactly, but as far as I remember, it was around 30
minutes to 50 minutes.

3

Jae-Oak Kho’s declaration in support of the motion to seal (D.E. 103-2), reveals nothing about why the
information designated would injure LG if disclosed publicly. The declaration merely states that LG has valuable
trade secrets that are maintained as confidential in the competitive refrigerator market. (Id.). However, the mere
fact that LG has valuable trade secrets does not mean that it can designate Mr. Chung’s deposition confidential if he
quotes its public stock price.

8

Q: Okay. During the course of that meeting did you all discuss any specific
problems related to the design of ice and water delivery systems in
refrigerators?
A: No.
Q: Do you have a general understanding of the invention that’s described in
the ‘665 patent?
A: Yes.
Q: Do you understand the problem or problems that this invention is
supposed to solve?
A: I believe, yes.
Q: Could you state for us generally what you thought those problems were?
A: I think I need to see this, because it was more than seven years ago and I
can’t remember this patent exactly.
. . . . [long colloquy between attorneys regarding the protective order]
A: So this patent is about the refrigerator that has a freezer in the bottom
and the refrigerator part in the up side, and there is icemaker in the refrigerator
part, and for the icemaker to make ice, it needs [] cold air. It should be sent
from the freezer part.
Q: Right.
A: And this patent is about how to send the cold air from the bottom freezer
to the upper refrigerator part, specifically [the] ice maker area. So it’s like
general idea[] and the compilation of the refrigerator of this type.
Q: Okay. And how long --- I’ll try to put together a clear question here.
When was the first time you started working on solutions to this problem.
A: I can’t remember because there were things at work I was doing, so I
can’t remember exactly when I started thinking about how to solve this
problem.
....
Q: So there’s no specific event that stands out in your mind as to when you
started working on the solution to these problems of cold air flow in these
types of refrigerators?
A: I can’t remember because as I told you there were a lot of things
happening at the same time.
Q: Okay.
ATTORNEY GENE LEE: I also object for lack of foundation.
ATTORNEY SPEARS: Okay.
Q: Do you know if this was a problem that you were assigned within the
first month of your work at LG?
A: I don’t think so, because as I told you, I was acquiring knowledge to do
this kind of job at the very first months, which according to Exhibit One, I
joined LG Electronics on May 15th. So the first was 15 days, two weeks, so I
was kind of getting familiar with the environment of LG Electronics.
Q: Does the ‘665 patent generally describe a system or configuration that
solves this problem of cold air flow that you identified?
A: As far as I know, yes.
9

(Chung Depo. Tr. at 17-21). LG has failed to explain what could possibly be confidential about
when Mr. Chung began working on the invention. This passage discloses no trade secret or
design information of any kind that any competitor could use to gain a competitive advantage or
to reverse engineer the product. Indeed, LG has not designated Mr. Chung’s start date as
confidential (see id. at 11) and this Court cannot imagine a legitimate reason that the date he
started work on the invention would give competitors an advantage they do not already have.
Further, the fact that Mr. Chung contributed to the invention is not confidential –the patent lists
him as an inventor, which means that he contributed to the conception of at least one claim.
LG asserts that disclosure of this information is prejudicial because Whirlpool wishes to
submit the information to the PTO. LG argues that such a use by Whirlpool is improper under
the Confidentiality Order. This argument fails to overcome the public’s right to this information
for two reasons: (1) the disclosure of the information is not a legitimate commercial injury in
light of the duty of many of LG’s agents to disclose this material information to the PTO—it is
not proper for LG to use a confidentiality designation to keep this information from those agents
and the PTO; (2) even though the Confidentiality Order prevents Whirlpool from using even
non-confidential information outside of the litigation, the constraints on Whirlpool are irrelevant
to whether the public should have access to the passage.
First, each and every person at LG who is involved in the prosecution of the
reexamination application is under a duty to disclose material information to the PTO. 37
C.F.R.§ 1.56 (c). The date of invention is material because it may be inconsistent with one of the
arguments LG’s prosecution team has made to the PTO on reexamination. See 37 C.F.R. § 1.56
(b)(2) (information inconsistent with a position taken before the PTO is material).
10

LG has

argued to the PTO that the disclosure of the ‘665 patent was conceived in early January of 2003.
(July 14, 2010 response at 38; D.E. 139-1). However, Mr. Chung testified that he did not start
until May 2003, and did not start working on the patent until two weeks later. Mr. Chung’s
listing as inventor requires that he contributed to the conception of at least one of the claims of
the patent. See MPEP 2137.01 (conception allows a person to be listed as an inventor, reduction
to practice is irrelevant); Fiers v. Revel, 984 F.2d 1164, 1168, 25 USPQ2d 1601, 1604-05 (Fed.
Cir. 1993) (same). As such, this information may be inconsistent with the position that LG’s
prosecution team took on reexamination because Mr. Chung could not have conceived a portion
of one of the claims as early as LG alleges all of the claims were conceived. Losing the ability to
shield this information from its prosecution team and ultimately the PTO can hardly be
considered a legitimate injury that was contemplated by protective orders. 4
Second, LG improperly focuses the inquiry on Whirlpool’s intent to use the information
in an area other than this litigation. On the one hand, the Confidentiality Order does explain that,
absent a Court order, even non-confidential information obtained in discovery may not be used
for any purpose other than this litigation. (Compare Confidentiality Order at ¶7(a) with ¶7(b)).
On the other hand, this argument presumes that the information is non-confidential. The public’s
right to access the information is independent of Whirlpool’s ability to use it for a purpose
prohibited by the Confidentiality Order. Indeed, Whirlpool’s appeal is of Judge Salas’
confidentiality designation, not an application to be relieved of the dictates of the Confidentiality
Order.

4

The Court makes absolutely no finding on whether the failure to disclose this information would give rise to
inequitable conduct under Therasense, Inc. v. Becton, Dickinson and Co., ___ F.3d ___ (Fed. Cir. 2011).

11

In sum, the only possible injury resulting from the public disclosure of this passage is one
that is not properly protected by confidentiality, which guards against only the loss of legitimate
business interests. LG clearly failed to show this information was confidential. Therefore, Judge
Salas erred in applying the law, which does not contemplate confidentiality acting as a barrier to
disclosing information to the PTO when the patentee has a duty to disclose that information. The
Court will unseal this portion of the transcript and allow access of that portion to the public.
Whirlpool’s ability to use that non-confidential information outside this litigation and
disclose it to the PTO is a separate issue, and, without an explicit application, the Court sees no
reason to disturb the status quo established in the Confidentiality Order.
b.

Passage 2

The second passage LG designated as confidential deals with Mr. Chung listing the
elements of the patent:
Q: Okay. Are there any specific components --- of these components to the
refrigerator in the ‘665 patent, are there any specific components that you came
up with either alone or in combination with your co-inventors
ATTORNEY GENE LEE: I object to the question as vague and
ambiguous. But go ahead.
A: If I recall this ‘665 patent, can I recall it to my memory if there’s any
parts? Is that your intention?
Q: Yes, that’s it.
A: Okay. So there is – as I told you from the first part of this conversation,
I can remember ice maker and flow duct and refrigerator compartment and
freezer compartment. I’m not sure if the freezer compartment or the
refrigerator compartment can be called a part and there is an ice maker and ice
storage bin.

12

(Chung Depo. Tr. at 26-28) (emphasis added).
There is nothing remotely confidential about Mr. Chung’s first answer. Indeed, Mr.
Chung appears to be answering the question of whether there are parts of the ‘665 patent, and
lists them in response. These are disclosed in the patent, which is a public document, and are not
confidential.
The rest of the passage relates to the contributions of Mr. Chung to the elements of the
patent and the workings of the group. While it is difficult to conceive what is earth-shattering
about the fact that

, it is remotely possible that this

information could be used by a competitor to reverse engineer the commercial embodiment. As
such, for this portion, Judge Salas did not abuse her discretion.

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c.

Passage 3

Moving to the third passage at issue, the Court agrees with Judge Salas’ finding that this
passage is confidential. Specifically, this passage contains information about what is potentially
commercial embodiment of the patent:
Q: Okay. At column ten between lines 24 and 31, did you see reference to a
damper?
A: Yes.
Q: Did anything in that section of the patent describe how the damper is
specifically configured to regulate air flow?
A: In general I know there is a damper, but I can’t remember how this one is
specifically configured.
Q: And this portion of column ten didn’t describe how it was specifically
configured, did it?
A: I am not sure.

14

(Chung Depo. at 37-41). The specificity providing exactly which components LG used to
“configure” the damper is far beyond what the patentee disclosed in the patent. The patent
discloses merely what the damper should be “configured” to do; it does not disclose the specifics
of how it is accomplished. This testimony gives information beyond that in the patent,
information that may be the commercial embodiment of the refrigerator. Thus, it is confidential
and Judge Salas did not err, let alone abuse her discretion.
d.

Passage 4

The fourth passage that LG designated as confidential deals with a potential contract
between LG’s trial counsel, Ropes & Gray, and Mr. Chung:
Q: Okay. I’d like to go back to your resume, which is Exhibit Two. And on
page five, yeah, that’s the one, under work experience you’ve indicated that
you’ve worked as a part-time technical consultant to Ropes & Gray; correct?
A: This is not correct information.
15

Q: Okay. All right. Please explain your answer.
A: As far as I remember late August, I received a phone call from LG
Electronics.
[Caution given to witness not to disclose information subject to attorneyclient privilege]
A: Okay. So basically I was offered this position, and I was willing to
accept this position. And when I was about to sign the contract form, I realized
that I’m not allowed to work off . . . campus and I . . . declined. And before I
decline[d], I correct[ed] my CV, but I re-corrected it after that.

(Chung Depo. at 41-44).
16

The Kho declaration does not even address the information in this passage. It never
mentions that the contracts of counsel are confidential (as opposed to privileged) information or
how the disclosure of such information might harm LG’s commercial interests. (See D.E. 99-2 at
¶7). The Kho declaration mentions only that the design, research, and the specialties and specific
contributions of LG’s employees are confidential. (See id.).
However, in light of the deference owed to a magistrate on discovery matters and the fact
that internal contracts are generally confidential, this Court finds that Judge Salas did not abuse
her discretion. Thus, the Court affirms Judge Salas’ finding that this information is confidential.
d.

Passage 5

The next passage that LG designated as confidential dealt with what scientists at LG had
accomplished prior to Mr. Chung’s arrival.

17

18

(Chung Depo. at 49-54). The Court finds that Judge Salas did not abuse her discretion in finding
that this passage was confidential.
This passage does not directly deal with elements of any of LG’s commercial
embodiments or trade secrets. However, it does deal with the specific background of Mr. Chung
and the other scientists who worked on the project. Further, it provides the portions of the
project that LG asked Mr. Chung, with his specialized knowledge, to focus on. This is
sufficiently confidential because competitors looking to solve the same problems LG solved in
its commercial embodiment would benefit from selecting a similar team to that which LG
selected. As such, the Court affirms Judge Salas’ ruling.
e.

Passage 6

The final confidential designation at issue is related to Mr. Chung’s contribution beyond
that of the prior work done by the previous inventors.

19

Q: Okay. When Mr. Lee was providing you with background information
that you discussed with Attorney 5 Mr. Lee, did he suggest to you that he had
solved the problems of air flow that are addressed in the ‘665 patent?
. . . . [Objection omitted]
A: You mean my contribution to solve this problem?
Q: Did Mr. Lee say, Mr. Chung, we have solved these problems with air
flow when he was providing you with his background information?
. . . . [Objection omitted]
A: I’m not sure about that.
Q: Okay. Insofar as you[‘re] concern[ed], problems with air flow addressed
in the ‘665 patent, those problems were solved by you in combination with
your co-inventors in the patent?
. . . . [Objection omitted]
A: Your question is, did we – I mean together, we inventors, did we actually
solve this problem using this patent?
Q: Uh-huh (yes).
A: I have no idea because I’m not sure this patent is used or not in the
commercial product.
Q: Does this patent contain any advances over the background information
that Myung Ryul Lee provided you?
A: I cannot remember exactly. I believe this was a little more specific than
[what] he told me.
(Chung Depo. 55-57). This passage does not contain confidential material. Indeed, it has little,
if any content. Mr. Chung does not have answers to any of the questions other than that the
patent is more specific than the information that he was given in an interview for the position.
The fact that the interview took place was already established in the non-confidential portions of
the record, (id. at 17), and this testimony gives no more information about the substance of the
meeting. As is evident from the question, the air-flow solutions are set forth in the patent itself
as well as non-designated portions of the transcript. (See id. at 19).
Further, the fact that the patent is “more specific” than the discussion cannot be
confidential information. The Court cannot imagine what use a competitor could put this

5

The Court concludes that this reference to “Attorney” was made in error and that “Attorney Mr. Lee” Refers to
Myung Ryul Lee.

20

information to in reverse engineering products or in competing with LG. As a result, the Court
finds that Judge Salas’ ruling that this information was confidential was an abuse of discretion
because LG manifestly did not carry its burden of showing harm as a result of disclosure.

III.

CONCLUSION
For the foregoing reasons the Court affirms Judge Salas’ ruling that LG’s responses to the

RFAs were appropriate but finds that a few of the passages that LG designated as confidential
are not confidential and should be unsealed.

Dated: June 14, 2011
/s/ Garrett E. Brown
GARRETT E. BROWN, JR., U.S.D.J.

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