Tessera Motion For Ftc T
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Case 2:05-cv-00094-JDL
Document 281-1
Filed 03/15/2006
Page 1 of 7
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS MARSHALL DIVISION TESSERA, INC.,
§ § Plaintiff, § § vs. § § MICRON TECHNOLOGY, INC., a Delaware § corporation, MICRON SEMICONDUCTOR § PRODUCTS, INC., an Idaho corporation, § INFINEON TECHNOLOGIES AG, a German § corporation, INFINEON TECHNOLOGIES § RICHMOND, LP, a Delaware corporation, and § INFINEON TECHNOLOGIES NORTH § AMERICA CORP., a Delaware corporation, § § Defendants. § §
Civil Action No. 2-05cv-94 The Honorable John D. Love Jury Opposed Expedited Hearing Requested
TESSERA INC.’S EXPEDITED MOTION TO COMPEL PRODUCTION OF TRANSCRIPTS AND EXHIBITS FROM FTC PROCEEDING
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Case 2:05-cv-00094-JDL
Document 281-1
Filed 03/15/2006
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TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that Tessera, Inc. (“Tessera”) hereby moves for an order compelling Micron to produce transcripts and exhibits from the Federal Trade Commission (“FTC”) proceeding, In the Matter of Rambus, Docket No. 9302. These materials are directly relevant to Tessera’s antitrust claims, and there is no question that Micron's counsel possesses them. Micron has promised to produce them, but has repeatedly failed to do so, seriously prejudicing Tessera’s ability to prepare for upcoming depositions of Micron employees who testified in the FTC proceeding. Tessera cannot properly prepare for these depositions without access to these transcripts. Tessera therefore requests expedited consideration of this Motion and further requests that it be heard at the scheduled March 21 hearing. This motion is based upon the memorandum below, accompanying exhibits, the files and records in this action, matters of which the Court may take judicial notice, and such additional argument and evidence as may later be considered by the Court before ruling on this motion. MEMORANDUM IN SUPPORT OF MOTION Micron is improperly withholding relevant exhibits and transcripts of depositions and trial testimony given by its employees in the FTC proceeding, In the Matter of Rambus, Docket No. 9302. Micron admits these documents are in its possession, but has failed to produce them. These transcripts and exhibits are directly relevant to of Tessera's claims. Tessera alleges that Micron and Infineon manipulated the market for RDRAM in an effort to destroy that market and the Tessera packaging technology used in RDRAM. The ALJ in the FTC proceeding made extensive findings of fact regarding DRAM manufacturers’ anticompetitive activities directed at RDRAM. See, e.g., In the Matter of Rambus, Inc., 2004 WL 390647 at 63-82 (FTC February 23, 2004) (ALJ Initial Decision). Evidence presented in this proceeding, including deposition and trial transcripts, and exhibits, upon which the Administrative Law Judge based his findings of fact, are therefore immediately relevant to Tessera’s claims.1 1
Tessera has been able to obtain a subset of transcripts from the FTC investigation that were publicly released. However, certain transcripts and testimony was withheld from the public based on confidentiality assertions made by participants in the investigation, including 1464449
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Case 2:05-cv-00094-JDL
Document 281-1
Filed 03/15/2006
Page 3 of 7
Micron admits that it possesses these documents. (Declaration of Charles E. Elder at ¶2.) And, Micron had an obligation to produce these documents eight months ago, in accordance with this Court’s Discovery Order. (See May 16, 2006 Discovery Order (Docket No. 38) at ¶ 2 (“[E]ach party shall disclose to every other party … a copy of all documents, data compilations and tangible things in the possession … of the party … that are relevant to … pleaded claims or defenses involved in the action.”) Despite the Court’s Order and Tessera’s repeated requests for these materials, Micron continues to withhold these documents. As one example of the harm caused by Micron’s failure to abide by its discovery obligations, the materials Micron continues to withhold include the transcript of Mr. Jeffrey Mailloux’s deposition testimony in the FTC proceeding. Mr. Mailloux is a former Micron employee whom Tessera has subpoenaed for deposition. Like almost every other Micron employee whom Tessera has attempted to depose regarding Micron’s anticompetitive activities, Mr. Mailloux filed a motion for a protective order. Mr. Mailloux’ lawyer claimed that Mr. Maillloux had a nervous breakdown caused by this previous deposition and that further depositions would endanger his health. He argued that the witnesses’ prior testimony should suffice to avoid having his deposition taken in this case. (Tessera, Inc. v. Micron Technology, Inc., Case No. 06-6004-S-BLW (D. Idaho), Docket No. 1.) Tessera requested the transcript of Mr. Mailloux's deposition in the FTC proceeding from Micron and Mr. Mailloux in order to evaluate these assertions and to determine whether a compromise could be reached where Tessera receives the discovery it needs without burdening Mr. Mailloux. (Stockinger Decl. at ¶ 2 and Ex. 2.) Rather than produce the transcript directly to Tessera, Micron only provided Mr. Mailloux’s counsel with the transcript. (Stockinger Decl., Ex. 1.) When Tessera requested the transcript from Micron, Micron questioned Tessera’s need for the transcript. (Id.) Tessera thereafter sent a formal letter to Micron reiterating its request for the Mailloux transcript, as well as all transcripts of testimony and exhibits submitted in the FTC proceeding. (Stockinger
the Defendants, Micron and Infineon. This Court has entered a Stipulated Protective Order according to which such materials may be produced and protected.
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Case 2:05-cv-00094-JDL
Document 281-1
Filed 03/15/2006
Page 4 of 7
Decl., Ex. 2.) Micron failed to respond to this written request. Tessera then sent a follow-up email, after being told by Mr. Mailloux’s counsel that Micron intended to produce the transcript. (Stockinger Decl., Ex. 3.) In response to that email, Micron's counsel promised to produce the transcript from Mr. Mailloux’s previous deposition by March 13. (Id.) Micron, however, reneged on its promise. It failed to produce the transcript on March 13. Tessera wrote Micron yet again, advising that it had not received the Mailloux transcript or any others, that it expected to receive the transcript of Mr. Mailloux’s testimony by March 14, and that, absent production of the Mailloux transcript and exhibits (and the other transcripts and exhibits as well) by a date certain, Tessera would need to file the instant motion. (Stockinger Decl., Ex. 4.) Micron did not respond to this letter by the time requested. However, just before Tessera filed this motion, Micron wrote asserting that it never promised Tessera would receive Mr. Mailloux’s transcript on Monday, March 13 despite its counsel’s previous email which states: “You will get it Monday.” (Stockinger Decl., Ex. 3.) Further, disingenuously claiming that it is “confused” as to the relevance of its employees’ testimony submitted in the FTC proceeding, Micron continues to refuse to produce these documents.2 (Stockinger Decl, Ex. 5.) Micron’s refusal has seriously prejudiced Tessera’s ability to prepare for depositions and, obviously, to respond appropriately to Mr. Mailloux’s pending motion for a protective order. This Court "adheres to … a policy of liberal discovery…. [and] will not tolerate gamesmanship that attempts to conceal or delay the production of discoverable items.” STMicroelectronics, Inc. v. Motorola, Inc., 308 F. Supp. 2d 754, 756 (E.D. Tex. 2004). The materials sought by Tessera are plainly relevant and should have been produced nearly a full year ago, without Tessera ever having to request them to begin with. Tessera respectfully requests an Order compelling Micron to produce forthwith the deposition and trial testimony provided by Micron employees in the FTC proceeding, including any associated exhibits. Tessera also requests this Court's expedited consideration of this issue because Tessera will soon be taking the deposition of Mr. Mailloux if his motion for protective order is denied, as 2
Micron’s counsel also states that they purportedly mailed the transcripts of Mr. Mailloux on March 10. Five days later, Tessera has still not received this transcript.
1464449
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Case 2:05-cv-00094-JDL
Document 281-1
Filed 03/15/2006
Page 5 of 7
well as depositions of other Micron employees. Tessera requests this motion be heard at the scheduled March 21 hearing.
Dated: March 15, 2006 /s/ Trevor V. Stockinger with permission of Attorney-in-Charge Attorneys for Plaintiff, TESSERA, INC. Harry Lee Gillam, Jr. (TX #07921880) Attorney-in-Charge Melissa Richards Smith (TX #24001351) GILLAM & SMITH LLP 110 South Bolivar, Suite 204 Marshall, Texas 75670 Telephone: (903) 934-8450 Facsimile: (903) 934-9257 Email: [email protected]
Franklin Jones, Jr. (TX #00000055) JONES & JONES, INC., P.C. 201 W. Houston Street P.O. Drawer 1249 Marshall, Texas 75671-1249 Telephone: (903) 938-4395 Facsimile: (903) 938-3360 Email: [email protected]
S. Calvin Capshaw (TX #03783900) BROWN MCCARROLL LLP P.O. Box 3999 Longview, Texas 75601-5157 Telephone: (903) 236-9800 Facsimile: (903) 236-8787 Email: [email protected]
T. John Ward, Jr. (TX #00794818) Law Office of T. John Ward, Jr., P.C. 109 W. Tyler St. Longview, Texas 75601 Telephone: (903) 757-6400 Facsimile: (903) 757-2323 Email: [email protected]
Otis W. Carroll (TX #03895700) IRELAND, CARROLL & KELLEY, P.C. 6101 S. Broadway Ave., Ste. 500 P.O. Box 7879 Tyler, Texas 75711 Telephone: (903) 561-1600 Facsimile: (903) 581-1070 E mail: [email protected]
1464449
Morgan Chu (CA #70446) Jonathan Steinberg (CA #98044) Benjamin Hattenbach (CA #186455) IRELL & MANELLA LLP 1800 Avenue of the Stars, #900 Los Angeles, CA 90067-4276 Telephone: (310) 277-1010 Facsimile: (310) 203-7199 Email: [email protected]
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Case 2:05-cv-00094-JDL
Document 281-1
Filed 03/15/2006
Page 6 of 7
CERTIFICATE OF CONFERENCE The undersigned hereby certifies that counsel for Tessera and counsel for Micron met and conferred on the issues addressed in this motion, and the parties were unable to resolve them. /s/ Trevor V. Stockinger
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Case 2:05-cv-00094-JDL
Document 281-1
Filed 03/15/2006
Page 7 of 7
CERTIFICATE OF SERVICE The undersigned hereby certifies that all counsel of record who are deemed to have consented to electronic service are being served with a copy of Tessera’s Motion to Compel Production of Transcripts and Exhibits From the FTC Proceeding, accompanying exhibits, and the proposed order via the Court’s CM/ECF system per Local Rule CV-5(a)(3). Any other counsel of record will be served by an overnight delivery service this 15th day of October, 2005. /s/ Trevor V. Stockinger
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Document 281-1
Filed 03/15/2006
Page 1 of 7
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS MARSHALL DIVISION TESSERA, INC.,
§ § Plaintiff, § § vs. § § MICRON TECHNOLOGY, INC., a Delaware § corporation, MICRON SEMICONDUCTOR § PRODUCTS, INC., an Idaho corporation, § INFINEON TECHNOLOGIES AG, a German § corporation, INFINEON TECHNOLOGIES § RICHMOND, LP, a Delaware corporation, and § INFINEON TECHNOLOGIES NORTH § AMERICA CORP., a Delaware corporation, § § Defendants. § §
Civil Action No. 2-05cv-94 The Honorable John D. Love Jury Opposed Expedited Hearing Requested
TESSERA INC.’S EXPEDITED MOTION TO COMPEL PRODUCTION OF TRANSCRIPTS AND EXHIBITS FROM FTC PROCEEDING
1464449
Case 2:05-cv-00094-JDL
Document 281-1
Filed 03/15/2006
Page 2 of 7
TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that Tessera, Inc. (“Tessera”) hereby moves for an order compelling Micron to produce transcripts and exhibits from the Federal Trade Commission (“FTC”) proceeding, In the Matter of Rambus, Docket No. 9302. These materials are directly relevant to Tessera’s antitrust claims, and there is no question that Micron's counsel possesses them. Micron has promised to produce them, but has repeatedly failed to do so, seriously prejudicing Tessera’s ability to prepare for upcoming depositions of Micron employees who testified in the FTC proceeding. Tessera cannot properly prepare for these depositions without access to these transcripts. Tessera therefore requests expedited consideration of this Motion and further requests that it be heard at the scheduled March 21 hearing. This motion is based upon the memorandum below, accompanying exhibits, the files and records in this action, matters of which the Court may take judicial notice, and such additional argument and evidence as may later be considered by the Court before ruling on this motion. MEMORANDUM IN SUPPORT OF MOTION Micron is improperly withholding relevant exhibits and transcripts of depositions and trial testimony given by its employees in the FTC proceeding, In the Matter of Rambus, Docket No. 9302. Micron admits these documents are in its possession, but has failed to produce them. These transcripts and exhibits are directly relevant to of Tessera's claims. Tessera alleges that Micron and Infineon manipulated the market for RDRAM in an effort to destroy that market and the Tessera packaging technology used in RDRAM. The ALJ in the FTC proceeding made extensive findings of fact regarding DRAM manufacturers’ anticompetitive activities directed at RDRAM. See, e.g., In the Matter of Rambus, Inc., 2004 WL 390647 at 63-82 (FTC February 23, 2004) (ALJ Initial Decision). Evidence presented in this proceeding, including deposition and trial transcripts, and exhibits, upon which the Administrative Law Judge based his findings of fact, are therefore immediately relevant to Tessera’s claims.1 1
Tessera has been able to obtain a subset of transcripts from the FTC investigation that were publicly released. However, certain transcripts and testimony was withheld from the public based on confidentiality assertions made by participants in the investigation, including 1464449
-1-
Case 2:05-cv-00094-JDL
Document 281-1
Filed 03/15/2006
Page 3 of 7
Micron admits that it possesses these documents. (Declaration of Charles E. Elder at ¶2.) And, Micron had an obligation to produce these documents eight months ago, in accordance with this Court’s Discovery Order. (See May 16, 2006 Discovery Order (Docket No. 38) at ¶ 2 (“[E]ach party shall disclose to every other party … a copy of all documents, data compilations and tangible things in the possession … of the party … that are relevant to … pleaded claims or defenses involved in the action.”) Despite the Court’s Order and Tessera’s repeated requests for these materials, Micron continues to withhold these documents. As one example of the harm caused by Micron’s failure to abide by its discovery obligations, the materials Micron continues to withhold include the transcript of Mr. Jeffrey Mailloux’s deposition testimony in the FTC proceeding. Mr. Mailloux is a former Micron employee whom Tessera has subpoenaed for deposition. Like almost every other Micron employee whom Tessera has attempted to depose regarding Micron’s anticompetitive activities, Mr. Mailloux filed a motion for a protective order. Mr. Mailloux’ lawyer claimed that Mr. Maillloux had a nervous breakdown caused by this previous deposition and that further depositions would endanger his health. He argued that the witnesses’ prior testimony should suffice to avoid having his deposition taken in this case. (Tessera, Inc. v. Micron Technology, Inc., Case No. 06-6004-S-BLW (D. Idaho), Docket No. 1.) Tessera requested the transcript of Mr. Mailloux's deposition in the FTC proceeding from Micron and Mr. Mailloux in order to evaluate these assertions and to determine whether a compromise could be reached where Tessera receives the discovery it needs without burdening Mr. Mailloux. (Stockinger Decl. at ¶ 2 and Ex. 2.) Rather than produce the transcript directly to Tessera, Micron only provided Mr. Mailloux’s counsel with the transcript. (Stockinger Decl., Ex. 1.) When Tessera requested the transcript from Micron, Micron questioned Tessera’s need for the transcript. (Id.) Tessera thereafter sent a formal letter to Micron reiterating its request for the Mailloux transcript, as well as all transcripts of testimony and exhibits submitted in the FTC proceeding. (Stockinger
the Defendants, Micron and Infineon. This Court has entered a Stipulated Protective Order according to which such materials may be produced and protected.
1464449
-2-
Case 2:05-cv-00094-JDL
Document 281-1
Filed 03/15/2006
Page 4 of 7
Decl., Ex. 2.) Micron failed to respond to this written request. Tessera then sent a follow-up email, after being told by Mr. Mailloux’s counsel that Micron intended to produce the transcript. (Stockinger Decl., Ex. 3.) In response to that email, Micron's counsel promised to produce the transcript from Mr. Mailloux’s previous deposition by March 13. (Id.) Micron, however, reneged on its promise. It failed to produce the transcript on March 13. Tessera wrote Micron yet again, advising that it had not received the Mailloux transcript or any others, that it expected to receive the transcript of Mr. Mailloux’s testimony by March 14, and that, absent production of the Mailloux transcript and exhibits (and the other transcripts and exhibits as well) by a date certain, Tessera would need to file the instant motion. (Stockinger Decl., Ex. 4.) Micron did not respond to this letter by the time requested. However, just before Tessera filed this motion, Micron wrote asserting that it never promised Tessera would receive Mr. Mailloux’s transcript on Monday, March 13 despite its counsel’s previous email which states: “You will get it Monday.” (Stockinger Decl., Ex. 3.) Further, disingenuously claiming that it is “confused” as to the relevance of its employees’ testimony submitted in the FTC proceeding, Micron continues to refuse to produce these documents.2 (Stockinger Decl, Ex. 5.) Micron’s refusal has seriously prejudiced Tessera’s ability to prepare for depositions and, obviously, to respond appropriately to Mr. Mailloux’s pending motion for a protective order. This Court "adheres to … a policy of liberal discovery…. [and] will not tolerate gamesmanship that attempts to conceal or delay the production of discoverable items.” STMicroelectronics, Inc. v. Motorola, Inc., 308 F. Supp. 2d 754, 756 (E.D. Tex. 2004). The materials sought by Tessera are plainly relevant and should have been produced nearly a full year ago, without Tessera ever having to request them to begin with. Tessera respectfully requests an Order compelling Micron to produce forthwith the deposition and trial testimony provided by Micron employees in the FTC proceeding, including any associated exhibits. Tessera also requests this Court's expedited consideration of this issue because Tessera will soon be taking the deposition of Mr. Mailloux if his motion for protective order is denied, as 2
Micron’s counsel also states that they purportedly mailed the transcripts of Mr. Mailloux on March 10. Five days later, Tessera has still not received this transcript.
1464449
-3-
Case 2:05-cv-00094-JDL
Document 281-1
Filed 03/15/2006
Page 5 of 7
well as depositions of other Micron employees. Tessera requests this motion be heard at the scheduled March 21 hearing.
Dated: March 15, 2006 /s/ Trevor V. Stockinger with permission of Attorney-in-Charge Attorneys for Plaintiff, TESSERA, INC. Harry Lee Gillam, Jr. (TX #07921880) Attorney-in-Charge Melissa Richards Smith (TX #24001351) GILLAM & SMITH LLP 110 South Bolivar, Suite 204 Marshall, Texas 75670 Telephone: (903) 934-8450 Facsimile: (903) 934-9257 Email: [email protected]
Franklin Jones, Jr. (TX #00000055) JONES & JONES, INC., P.C. 201 W. Houston Street P.O. Drawer 1249 Marshall, Texas 75671-1249 Telephone: (903) 938-4395 Facsimile: (903) 938-3360 Email: [email protected]
S. Calvin Capshaw (TX #03783900) BROWN MCCARROLL LLP P.O. Box 3999 Longview, Texas 75601-5157 Telephone: (903) 236-9800 Facsimile: (903) 236-8787 Email: [email protected]
T. John Ward, Jr. (TX #00794818) Law Office of T. John Ward, Jr., P.C. 109 W. Tyler St. Longview, Texas 75601 Telephone: (903) 757-6400 Facsimile: (903) 757-2323 Email: [email protected]
Otis W. Carroll (TX #03895700) IRELAND, CARROLL & KELLEY, P.C. 6101 S. Broadway Ave., Ste. 500 P.O. Box 7879 Tyler, Texas 75711 Telephone: (903) 561-1600 Facsimile: (903) 581-1070 E mail: [email protected]
1464449
Morgan Chu (CA #70446) Jonathan Steinberg (CA #98044) Benjamin Hattenbach (CA #186455) IRELL & MANELLA LLP 1800 Avenue of the Stars, #900 Los Angeles, CA 90067-4276 Telephone: (310) 277-1010 Facsimile: (310) 203-7199 Email: [email protected]
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Case 2:05-cv-00094-JDL
Document 281-1
Filed 03/15/2006
Page 6 of 7
CERTIFICATE OF CONFERENCE The undersigned hereby certifies that counsel for Tessera and counsel for Micron met and conferred on the issues addressed in this motion, and the parties were unable to resolve them. /s/ Trevor V. Stockinger
1464449
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Case 2:05-cv-00094-JDL
Document 281-1
Filed 03/15/2006
Page 7 of 7
CERTIFICATE OF SERVICE The undersigned hereby certifies that all counsel of record who are deemed to have consented to electronic service are being served with a copy of Tessera’s Motion to Compel Production of Transcripts and Exhibits From the FTC Proceeding, accompanying exhibits, and the proposed order via the Court’s CM/ECF system per Local Rule CV-5(a)(3). Any other counsel of record will be served by an overnight delivery service this 15th day of October, 2005. /s/ Trevor V. Stockinger
1464449
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