Free Letter - District Court of Delaware - Delaware

Case 1 :05-md-01717-JJF Document 752 Filed O2/15/2008 Page 1 of 4
W. Harding Drane, Jr.
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VIA ELECTRONIC FILING AND BY HAND
The Honorable Vincent J. Poppiti
Blank Rome LLP
Chase Manhattan Centre, Suite 800
1201 North Market Street
Wilmington, DE 198{}l·—4226
Re: Advanced Micro Devices, Inc., et ol. v. Intel Corporation, et ol., C.A.
No. 05-44]-JJF; In re Intel Corporation, CA. No. 05-MD-1*71 7-JJF;
and Phil Paul, at al. v. Intel Corporation, CA. 05-485-JJF .
Dear Judge foppitiz -
Intel hereby submits this letter, requesting a conference to discuss the entry of a further
case management order addressing the taking of depositions in these matters. Intel and Plaintiffs
have engaged in a lengthy meet and confer process, including correspondence and a face to face
meeting, but appear to remain far apart in our views. Plaintiffs insisted that Intel proceed first,
rather than provide simultaneous proposals, followed by simultaneous replies. In the interests of
having this important issue timely addressed, Intel agreed to provide its views first, but does
want to be sure that the briefing schedule allows some time for Intel to respond to the proposal
AMD submits}
The Federal Rulesrequire that counsel develop a cost-effective plan for discovery,
including depositions. The parties have postponed addressing depositions to deal with the
massive document productions. And the document productions have exceeded all bounds of
reason, contrary to the parties’ expectations when agreeing to a custodian based approach. Intel
estimates that its custodian based production will approximate 140 million pages of doctunents.
l The parties have reached agreement on a number of other deposition related issues. They I
have jointly retained a court reporting service, and have agreed to protocols establishing
deposition "point orsons" for scheduling, a timetable for noticing depositions, as wei] as the
presumptive locations for depositions. These agreements will be embodied in a separate
stipulation.

Case 1:05-md-01717-JJF Document 752 Filed 02/15/2008 Page 2 of 4
The Honorable Vincent J. Poppiti
February l5, 2008
Page 2
This figure does not include data or corporate based requests. Once the AMD production and
third party productions are added in, it is clear that more than the equivalent of 200 million pages
of documents ~» easily 9 miles high if printed out- will have been produced. The costs are also
at a level both unexpected and stunning. In approaching deposition discovery, it is obvious that a
different approach — one focused on a potential trial of this case —— must be employed, or this case
will be notable as a failure of our litigation system. In the meet and confer process, it was
apparent that Plaintiffs were seeking hundreds of depositions, and proposing a five-track
deposition process that would simply continue the unrnanageable and unnecessarily expensive
approach employed to date.
We also presently have an April 2009 trial date. Given the massive amount of work
ahead (including document review ofthe 200 million of pages recently produced or soon to be
produced by AMD, Intel and third parties, preparation of expert reports and related discovery,
motion practice and trial preparation), intel believes it is critical that reasonable parameters of
deposition discovery be established now, to allow the matter to be litigated at all. As set forth
above, the scope and costs of document discovery in this matter are staggering, and it is obvious
that it will be an extraordinary challenge and will require aggressive management to develop a
reasonable deposition plan.
No party has suggested that the limits on the number and length of depositions in Rule
30(a)(2)(A) and (d)(2) should be strictly adhered to in this case, but the Rule requires by its
express terms either a stipulation of the parties or an Order of the Court before the limits are
exceeded. See FED. R. Civ. P. 30, advisory committee's note ("One aim of [Rule 30(a)(2)(A)] is
to assure judicial review under the standards stated in Rule 26(b)(2) before any side will be
allowed to take more than ten depositions in a case without agreement ofthe other parties.");
Lopez v. Patrick, No. 2:05 cv 452, 2007 U.S. Dist. LEXIS 59093, at *2-3 (Nl). Ind. Aug. 7,
2007); Lloyd v. Valley Forge Life Ins. C0., No. C06—5325 PDB, 2007 U.S. Dist. LEXIS 40526, at
*5-7 (D. Wash. Mar. 23, 2007). The Federal Rules no longer allow a party to decide unilaterally
on the scope of discovery, in favor of a system that requires case management plan up front,
reflecting a meaningful balancing of the burdens and benefits from the requested discovery.
Intel recognizes that the plan may need to be revised as the deposition process continues, but a
first step is a realistic plan.
lt is against this backdrop that lntel makes the following proposal for deposition
discovery. lt is substantially similar to what it proposed to Plaintiffs in the meet and confer
process. The proposal has the following components:
l. There should be basic parity between the sides on the number of depositions.
Plaintiffs cannot fairly demand the right to conduct more depositions than intel. The argument
that plaintiffs bear the burden of proof cannot justify inequality in depositions. Plaintiffs get to
present their proof first at trial, and in a case of this magnitude will have to choose what issues to
pursue and what to drop. Intel, on the other hand, must prepare for every eventuality. While
Intel has to date agreed to significantly greater discovery burdens, it can no longer do so without
being unfairly prejudiced. If events later justify a need on the part of either side for an additional
allotment of depositions, that can be addressed by the Court at that time.

Case 1:05-md-01717-JJF Document 752 Filed 02/15/2008 Page 3 of 4
The Honorable Vincent .l. Poppiti
February 15, 2008 ·
fage 3
2. No witness should be subjected to more than one deposition, absent Court order
· based on a showing of compelling circumstances.
3. Each side would have total of 75 depositions that could be taken without any
showing of good cause, divided between 50 party related (current and former employees of a
party) depositions and 25 third party witnesses. Expert discovery would be addressed separately.
We believe that the parties should up front identify their initial proposed list of deponents, which
they would then be free to change, in good faith, based on the progress of deposition discovery.
This will give each party the ability to begin and focus preparation on those persons who will be
deposed, and not have the burden of attempting to anticipate who from a list of several hundred
custodians might be deposed and do unnecessary preparation. The unprecedented volume of
documents and the costs of discovery make any other approach unreasonable. Then each party,
after exchanging the list of deponents, would also provide preliminary trial witness lists of party
related witnesses (which again would be subject to change based on discovery). Each party
would also have the right to take the deposition of any person on the other’s preliminary witness
list or who is subsequently added. Any depositions beyond those set forth here would require a
stipulation ofthe parties, or an individual showing of good cause. Intel would agree to an
expedited procedure for consideration of such requests.
These are very significant numbers of depositions under any objective standard, and
requiring the parties to plan and prioritize their depositions of the other side's witnesses is
reasonable. And if these numbers are inadequate (as Intel believes Plaintiffs will suggest), it is
also reasonable to require that a good cause showing be made inthe context of specific requests,
for specific deponents.2
4. The parties would be allowed presumptively to double~track depositions, but
anything beyond that would require agreement of the parties or good cause. _
5. Each party would be able to choose 15 party related witnesses and 10 third party
witnesses for 14 hour depositions, to the extent agreed to by the third parties. All other witnesses
would be subject to the 7 hour limit. Any witness requiring a translator could be deposed for 1
l/2 times the standard time. Each defending party would have the option of taking up to an
additional 2 hours for direct examination on the succeeding day, with a reasonable period ‘
allowed for further cross if the opportunity for direct examination is taken. _
6. The parties would each be allowed l0 days of Rule 30(b)(6) deposition, with any
additional time requiring a specific showing of good cause.
2 With respect to the class action litigation, Intel recognizes that there will be deposition
discovery that does not overlap with the AMD case, that would not contemplated in the
above schedule, and which will need to be addressed separately

Case 1:05-md-01717-JJF Document 752 Filed 02/15/2008 Page 4 of 4
The Honorable Vincent J. Poppiti
February 15, 2008
Page 4 ’
7. The cut-off for all custodian document discovery has been set for February 15,
2008. Additionally, all deposition reharvest requests and free throw custodian designations
would be made by July 31, 2008. The document production in this case needs to be concluded.
Once again, while the parties envisioned a process where additional document production would e
occur to address issues arising in discovery, that process too must have limits now, in light of the
size and costs ofthe production to date.
The overwhelming burdens of this litigation, and the interests of the parties, as well as the
judicial system require deposition discovery be structured with a clear view to what can
realistically be accomplished at a trial and within reasonable time parameters. This deposition
plan set forth above will require well over 200 days of actual deposition time, and enormous
expenditure of resources on the part of all parties to prepare for these depositions. Even after this
ambitious deposition schedule the parties will need meaningful time to complete expert reports
and discovery, and engage in pre—trial motion practice. As a result, we believe, based on the
considerations above, that the deposition limit must be tuned to the realistic length of any trial, as
opposed to one reflexively based on the numbers of custodians. lntel presumes a trial of no
longer than about 3 months ~ which would be at most about 45-50 trial days of testimony. No
jury can be expected to sit longer, or to endure more. This deposition plan would call for many
more depositions than there will be trial witnesses. But to allow hundreds of depositions on top
ofthe massive document production would mean that most ofthe time and money spent would
be wasted.
The huge document productions made by all parties ensure that Intel and Plaintiffs should
be extremely well informed about the relevant facts. Filing a monopolization case is not a
license for nnfocused, unlimited discovery. The limits and procedures set out here will force the
parties to figure out what is really important and focus their efforts to that end. See In re Suhirric
Acid Antitrust Lirig., 230 ll.R.D. 527, 532 (N .D. Ill. 2005). Intel’s proposal is intended to
facilitate a trial, not to block legitimate discovery. But unless the Court imposes a realistic
schedule on the parties now, thus forcing the parties to prioritize and limit deposition discovery
upfront, the cost of deposition discovery will be beyond staggering, the trial date will be
hopelessly delayed, and a record will be accumulated that cannot possibly be used at trial.
Respectfully,
W. Harding Drane, Jr. (#1023)
Wl-ID/mho
cc: The Honorable Vincent 3. Poppiti (via electronic mail)
Charles Diamond, Counsel for AMD (via electronic mail)
Michael I-lausfeld, Interim Class Counsel (via electronic mail)
Frederick L. Cottrell, lll (via electronic mail)
J arnes L. Holzman (via electronic mail)
#849003/29282