Cypress Insurance Company v. SK Hynix America, Inc.

Filing 242

Court's Rulings on Hynixs Objections to Cypress' Deposition Designations (Dkt. # 239 -1) and Court's Rulings on Cypress' Objections to Hynix's Counter-Designations (Dkt. # 237 -1) (TH)

Cypress Insurance Company v. SK Hynix America, Inc.
C17-467 RAJ

Court’s Rulings on Hynix’s Objections to Cypress’ Deposition Designations (Dkt. # 239-1)
BRIAN TOBEY
PAGE /
LINE
16:1-17:8
28:229:13;
31:1132:7;
33:1434:21;
44:14-24;
48:16-24;
52:2354:13;
55:1457:12;
62:3-17;
66:2467:18;
68:1969:18;

NATURE OF
OBJECTION
Foundation

REASON

RESPONSE

COURT’S RULING

As outlined in Hynix’s
General Objection, Hynix
objects to the use of any part
of Mr. Tobey’s testimony
because Cypress has failed to
establish that Mr. Tobey is
unavailable under the Federal
Rules of Civil Procedure
(“Rule”) 32(a)(4), the use of
deposition testimony in court
proceedings in lieu of live
testimony. Mr. Tobey is
former employee of Microsoft
and a resident of Washington
and resides within
approximately 20 miles of this
Court. Fed R. Civ. Proc.
32(a)(4)(B). Cypress has
neither indicated nor
established (1) that Cypress
was unable to “procure the

Mr. Tobey is no longer a
Microsoft employee. He has
informed counsel that he will
be in California at his second
home during March. He was
available for live testimony
on the February dates before
Hynix moved for a
continuance. We are still
trying to convince him to
agree to travel to Seattle to
testify live during the week
of March 18th and have kept
Hynix updated. However,
for now, we are advised he is
out-of-state and not subject to
subpoena.

SUSTAINED without
prejudice. Witness has
not shown to be
unavailable under Rule
32(a)(4). Cypress has
not shown that it was
unable to procure the
witness’s attendance by
subpoena when the
change in trial date
occurred on January 18.
Dkt. # 152. Cypress has
also not demonstrated
that Tobey would not
voluntarily testify.

All pre-fire conduct
testimony should be subject

PAGE /
LINE

NATURE OF
OBJECTION

REASON

RESPONSE

witness’s attendance by
subpoena” (i.e., no evidence
of an attempt to serve Mr.
Tobey), (2) that Mr. Tobey is
now deceased, or (3) that he is
ill or imprisoned. Fed. R. Civ.
Proc. 32(a)(4)(A), (C)-(D).
Thus, the Court must exclude
the use of Mr. Tobey’s
deposition testimony.

to Court’s limiting
instruction.

personally oversee the Hynix
account and had never
reviewed the Ninth
Amendment until the day
before his deposition. Fed. R.
Evid. 602, 701.

Q.
And do you know why
Microsoft didn’t have a backup supplier?

The witness has personal
knowledge of the subject of
testimony and hence has
appropriate foundation. He
testified that at the time he
was corporate vice-president
of all manufacturing and
supply chain hardware
In general, no foundation has operations (Tobey 6:14-15)
and that the oversight of the
been laid from Mr. Tobey’s
testimony. And it is unclear if Hynix account was under his
control (Tobey 6: 16-22).
he is testifying as to what his
subordinates reported to him
Further, the witness testified
as opposed to his personal
to specific details of
knowledge.
discussions with Hynix
leading up to the 9th
Additionally, Mr. Tobey
Amendment.
testified that he did not

A.
…we had meetings
with Hynix. We explained
the vulnerability of the

COURT’S RULING

PAGE /
LINE

NATURE OF
OBJECTION

REASON
Q. Okay. And at the time
you left Microsoft, did you
oversee the SK Hynix
account?
A. Yeah.
Q. Okay.
A. Somebody working for me
did.
Q. Okay. But ultimately that
–
A. Reported up to me.
(Tobey, Brian, 6:16-6:22)
A: I haven't read this
contract. You guys will have
to. I'm sure it's in there.
(Tobey, Brian, 28:21-22)
Q. Okay. And did you
negotiate the Amendment
Nine to the Microsoft/SK
Hynix contract?
A. I don't even know what
Amendment Nine is until I
saw it yesterday. I did not
negotiate . . . Amendment
Nine.
(Tobey, Brian, 30:3-20)

RESPONSE
launch. We explained the
reliance we would have on
them. And they told us it
wouldn’t be a problem.
(Tobey 15:8-14)
Also, Hynix’s counterdesignations include
questions to Brian Tobey
about the limited number of
back-up suppliers and their
relationship with Hynix
(Tobey 20:5-22) and his
knowledge of the
qualifications of the Hynix
chip for the Xbox.. Hynix
can’t argue on one hand that
Tobey has insufficient
personal knowledge of the
relationship with Hynix and
then, on the other, attempt to
elicit testimony about other
options for the Xbox launch.
Similarly, with respect to the
9th Amendment, Hynix has
designated testimony wherein
the witness is asked about the
pricing terms (Tobey 24:4-7).

COURT’S RULING

PAGE /
LINE

NATURE OF
OBJECTION

REASON

RESPONSE

Q. Okay. So as you sit here
today, you don't recall any
specific discussions relating to
Micron, SK Hynix, and
Samsung as it related to the
chips that ended up in the
Xbox One?
A. No.
(Tobey, Brian, 14:12-14:16)

The witness has the proper
foundation to testify about
typical supply contract terms
and how they operate.

Moreover, Mr. Tobey’s
testimony on Microsoft’s
intent behind certain terms is
inadmissible. RSD AAP, LLC
v. Alyeska Ocean, Inc., 190
Wash. App. 304, 315 (2015)
(“[E]xtrinsic evidence of a
party’s subjective, unilateral,
or undisclosed intent
regarding the meaning of a
contract’s terms is
inadmissible.”).

Q. The phrase capacity
commitment does that have
any special meaning to you?
A. What it means to me is
that they have committed to
making the parts that we
require them to make.
(Tobey 28:2-6)
Q. At a capacity
commitment of 60 million,
you would expect the
supplier to be able to supply
you 60 million?
A. Our contracts usually
start with a number and…SK
Hynix is obligated to the
forecast we deliver within
some time period. (Tobey
28:11-24)
This witness has described
typical terms within a

COURT’S RULING

PAGE /
LINE

NATURE OF
OBJECTION

REASON

RESPONSE
Microsoft supply contract
and how the forecast process
operates. Based upon his
role as vice-president of the
supply chain operations and
his personal experience with
this and other contract
relationships, this witness
clearly has the foundation for
this testimony.
When asked about whether or
not Hynix could allocate
under the contract, the
witness references specific
conversations at meetings
with Hynix that he attended;
There is proper foundation
for this testimony.
Q. Did you believe that
under the contract between
Microsoft and SK, SK was
allowed to allocate?
A. No. I believe…today
that, not only contractually
but in verbal agreements,
when we told them they were

COURT’S RULING

PAGE /
LINE

NATURE OF
OBJECTION

REASON

RESPONSE

COURT’S RULING

going to be in a single
supply, they told me, “you
will not have a problem”. If
there’s a problem we will
make sure you get your
supply” (Tobey 66:20-67-4).

45:13-16

Foundation;
relevance

This testimony goes right to
the heart of Microsoft’s
intentions in entering into the
contract with Hynix and its
expectations as to “priority”
(which is part of the standard
CPA-a version of which was
signed with Hynix in 2004).
The witness should be able to
testify to what he told Hynix
in advance, during contract
discussions.
Hynix repeats its above
Witness is testifying to
SUSTAINED objection based on Rule 32(a) personal knowledge of which Foundation
in its entirety.
companies were receiving
priority after the Wuxi
Additionally, Hynix objects to fire. Hynix has admitted that
Apple had “super-priority”
this testimony because Mr.
and this was clearly made
Tobey is testifying as to
another entity’s state of mind. known to Microsoft when
Fed. R. Evid. 602, 701.
Hynix was deciding who

PAGE /
LINE

NATURE OF
OBJECTION

67:19-68:1 Non-responsive

REASON

RESPONSE

COURT’S RULING

would receive chips after the
fire.
Hynix repeats its above
After the witness testified as OVERRULED
objection based on Rule 32(a) to whether or not Hynix was
in its entirety.
allowed to allocate after the
fire, Hynix asked whether
Additionally, Hynix objects to when Hynix made certain
statements (about
this testimony because Mr.
guaranteeing Microsoft’s
Tobey did not answer the
chip supply) “if the fire was a
question.
foreseeable event”. The
witness answered: “as senior
executives at a major
corporation they understood
all the potential ramifications
of that commitment when
they made it”. (Tobey 67:1968:1). Hynix may not like
the answer but it is certainly
an answer to the question and
is in no way non-responsive.

Court’s Rulings on Cypress’ Objections to Hynix’s Counter-Designations (Dkt. # 237-1)

PAGE /
NATURE OF
LINE
OBJECTION
14:12-17:8 Subject to
Limiting
Instruction as to
pre-fire conduct
and Context

REASON
All testimony should be
subject to Limiting Instruction
as to pre-fire conduct and
Hynix additions should be
included with plaintiff’s
designation 15:8-25 for
context.

RESPONSE

COURT’S RULING

As outlined in Hynix’s
SUSTAINED
General Objection, Hynix
objects to the use of any part
of Mr. Tobey’s testimony
because Cypress has failed to
establish that Mr. Tobey is
unavailable under the Federal
Rules of Civil Procedure
(“Rule”) 32(a)(4), the use of
deposition testimony in court
proceedings in lieu of live
testimony. Mr. Tobey is
former employee of
Microsoft and a resident of
Washington and resides
within approximately 20
miles of this Court. Fed R.
Civ. Proc. 32(a)(4)(B).
Cypress has neither indicated
nor established (1) that
Cypress was unable to
“procure the witness’s
attendance by subpoena”
(i.e., no evidence of an

PAGE /
LINE

17:9-19:7

NATURE OF
OBJECTION

Subject to
Limiting
Instruction as to
pre-fire conduct
and Context

REASON

RESPONSE

attempt to serve Mr. Tobey),
(2) that Mr. Tobey is now
deceased, or (3) that he is ill
or imprisoned. Fed. R. Civ.
Proc. 32(a)(4)(A), (C)-(D).
Thus, the Court must exclude
the use of Mr. Tobey’s
deposition testimony.
To the extent that the Court
permits Mr. Tobey’s
testimony, Hynix’s response
is as follows:
Hynix agrees that all
testimony should be subject
to Limiting Instruction No.
59.
All testimony should be
Hynix repeats its above
subject to Limiting Instruction objection based on Rule
as to pre-fire conduct and
32(a) in its entirety.
Hynix additions should be
included with plaintiff’s
To the extent that the Court
designation 17:19-19:7 for
permits Mr. Tobey’s
context.
testimony, Hynix’s response
is as follows:
Hynix agrees that all
testimony should be subject
to Limiting Instruction No.
59.

COURT’S RULING

SUSTAINED

PAGE /
LINE
20:5-22

25:5-9

NATURE OF
OBJECTION
Foundation,
Context and
subject to
Limiting
Instruction as to
pre-fire conduct

Subject to
Limiting
Instruction as to
pre-fire conduct
and Context

REASON

RESPONSE

COURT’S RULING

Witness had no involvement
in pre-fire discussions with
Samsung and Micron (Tobey
20:15-22). Further, all
testimony should be subject to
Limiting Instruction as to prefire conduct and Hynix
additions should be included
with plaintiff’s designation
20:9-14 for context..

Hynix repeats its above
objection based on Rule
32(a) in its entirety.
To the extent that the Court
permits Mr. Tobey’s
testimony, Hynix’s response
is as follows:

OVERRULED as to
the foundation objection
and otherwise
sustained.

Hynix’s counter-designations
are designed to highlight Mr.
Tobey’s lack of foundation.
To the extent that Cypress
objects to Hynix’s counterdesignations on the basis of
foundation, Hynix agrees that
all such objections should
apply, which then should be
applied with equal force to all
parties.

Hynix agrees that all
testimony should be subject
to Limiting Instruction No.
59.
All testimony should be
Hynix repeats its above
subject to Limiting Instruction objection based on Rule
as to pre-fire conduct and
32(a) in its entirety.
Hynix additions should be
included with plaintiff’s

SUSTAINED

PAGE /
LINE

NATURE OF
OBJECTION

REASON
designation 28:2-29:13 for
context.

28:129:13

31:1132:12

Subject to
Limiting
Instruction as to
pre-fire conduct
and Context

Subject to
Limiting
Instruction as to
pre-fire conduct
and Context

RESPONSE

COURT’S RULING

To the extent that the Court
permits Mr. Tobey’s
testimony, Hynix’s response
is as follows:

Hynix agrees that all
testimony should be subject
to Limiting Instruction No.
59.
All testimony should be
Hynix repeats its above
subject to Limiting Instruction objection based on Rule
as to pre-fire conduct and
32(a) in its entirety.
Hynix additions should be
included with plaintiff’s
To the extent that the Court
designation 28:2-29:13 for
permits Mr. Tobey’s
context.
testimony, Hynix’s response
is as follows:
Hynix agrees that all
testimony should be subject
to Limiting Instruction No.
59.
All testimony should be
Hynix repeats its above
subject to Limiting Instruction objection based on Rule
as to pre-fire conduct and
32(a) in its entirety.
Hynix additions should be
included with plaintiff’s
To the extent that the Court
designation 31:11-32:7 for
permits Mr. Tobey’s
context.

SUSTAINED

SUSTAINED

PAGE /
LINE

NATURE OF
OBJECTION

REASON

RESPONSE

COURT’S RULING

testimony, Hynix’s response
is as follows:

33:1435:15

36:5-37:4

Subject to
Limiting
Instruction as to
pre-fire conduct
and Context

Foundation and
calls for a legal
conclusion. ER
401 and ER 403.

Hynix agrees that all
testimony should be subject
to Limiting Instruction No.
59.
All testimony should be
Hynix repeats its above
subject to Limiting Instruction objection based on Rule
as to pre-fire conduct and
32(a) in its entirety.
Hynix additions should be
included with plaintiff’s
To the extent that the Court
designation 33:14-34:21 for
permits Mr. Tobey’s
context.
testimony, Hynix’s response
is as follows:

The prejudice outweighs the
probative value, it is
duplicative of other testimony
and answer is nonresponsive
to question and otherwise
irrelevant. Reason: Witness is
asked about whether a
forecast is binding and if he
would direct counsel to the

Hynix agrees that all
testimony should be subject
to Limiting Instruction No.
59.
Hynix repeats its above
objection based on Rule
32(a) in its entirety.
To the extent that the Court
permits Mr. Tobey’s
testimony, Hynix’s response
is as follows:

SUSTAINED

OVERRULED

PAGE /
LINE

NATURE OF
OBJECTION

Subject to
Limiting
Instruction as to
pre-fire conduct
and Context

RESPONSE

contract. Witness answers: “I
haven’t read this contract…it
was below my pay grade to
sign”. (Tobey, 36:13-15).

54:14-22
and 55:813

REASON

Hynix’s counter-designations
are designed to highlight Mr.
Tobey’s lack of foundation.
To the extent that Cypress
objects to Hynix’s counterdesignations on the basis of
foundation, Hynix agrees that
all such objections should
apply, which then should be
applied with equal force to all
parties.

Hynix agrees that all
testimony should be subject
to Limiting Instruction No.
59.
All testimony should be
Hynix repeats its above
subject to Limiting Instruction objection based on Rule
as to pre-fire conduct and
32(a) in its entirety.
Hynix additions should be
included with plaintiff’s
To the extent that the Court
designation 52:23-54:13 and
permits Mr. Tobey’s
55:14-57:12 for context.
testimony, Hynix’s response
is as follows:
Hynix agrees that all
testimony should be subject
to Limiting Instruction No.
59.

COURT’S RULING

SUSTAINED

PAGE /
LINE
64:2-21

NATURE OF
OBJECTION
Subject to
Limiting
Instruction as to
pre-fire conduct

REASON

RESPONSE

All testimony should be
Hynix repeats its above
subject to Limiting Instruction objection based on Rule
as to pre-fire conduct.
32(a) in its entirety.
To the extent that the Court
permits Mr. Tobey’s
testimony, Hynix’s response
is as follows:
Hynix agrees that all
testimony should be subject
to Limiting Instruction No.
59.

COURT’S RULING
SUSTAINED