NetList Inc (NLST)

[Jetmek_03052]

Case 8:20-cv-00993-MCS-ADS Document 426 Filed 02/28/24

https://storage.courtlistener.com/recap/gov.uscourts.cacd.783923/gov.uscourts.cacd.783923.426.0.pdf



Title Page

Attorneys for Plaintiff Netlist Inc.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
SOUTHERN DIVISION
NETLIST INC., a Delaware
corporation,
Plaintiff,
v.
SAMSUNG ELECTRONICS CO.,
LTD., a Korean corporation,
Defendant.

Case No. 8:20-cv-00993-MCS (ADS)

NETLIST INC.’S NOTICE OF
SUPPLEMENTAL AUTHORITY IN
SUPPORT OF NETLIST’S MOTION IN
LIMINE TO ADMIT TESTIMONY (#3)
[REDACTED PUBLIC VERSION]
Date: March 18, 2024
Time: 2 p.m. PT
Location: Courtroom 7C
Judge: Hon. Mark C. Scars

Page 1

NOTICE OF SUPPLEMENTAL AUTHORIITY
Netlist, Inc. (“Netlist”) respectfully submits this Notice in support of Netlist’s
Motion in Limine to Admit Testimony (Dkt. 417), to inform the Court that Judge
Gilstrap has granted Netlist’s Motion for Relief from the Protective Order to allow
Netlist to present the deposition testimony of Mr. Joseph Calandra for this Court’s
review for admission in this Action.

Netlist Inc. v. Samsung Elecs. Co., Ltd., No. 2:22-
cv-293, Dkt. 679 (E.D. Tex. Feb. 28, 2024).

Judge Gilstrap held:
Netlist is not seeking to obtain extra discovery in this case to be used
in the CDCA Action, but rather Netlist is simply asking that it be
allowed to show Judge Scarsi deposition testimony that has already
taken place so that Judge Scarsi can determine whether or not such
testimony is relevant and admissible in the CDCA.

Exhibit A at 3. A true and correct copy of the testimony Netlist seeks to admit is
attached as Exhibit B (the exhibit includes full pages with the proposed testimony to
designate for playing before the jury highlighted).

As discussed in the Motion (Dkt. 417 at 5), Mr. Calandra was Samsung’s
30(b)(6) witness on various topics relating to Samsung policies regarding product
sales of NAND and DRAM, which cover the application of sales to customers with a
supply agreement such as the JDLA, including topic 55 (“facts and circumstances of
all sales or offers for sale of the Samsung Accused Products”), topic 51 (“Samsung’s
actual, proposed, contemplated, planned or prospective pricing policies, strategies,
plans, practices, or decisions for the Samsung Accused Products”), topic 50
(“distribution channels for the Samsung Accused Products”), and topic 59 (“expected,
planned, and forecasted profitability, revenues, and sales of the Samsung Accused
Products”). Dkt 417-14 (Ex. 13 (Netlist 30(b)(6) notice), 474-17 (Ex. 16 Samsung
email designating Mr. Calandra).

{Redacted lines = 3}

Page 2

{Redacted Lines = 9}

Samsung stated to the Ninth Circuit: “No ordinary businessperson in
Samsung’s position would agree to supply an unquantified amount of DRAM and
NAND to a single customer ‘on request at a competitive price.’” Netlist Inc. v.
Samsung Elecs. Co., LTD., 2022 WL 21243 72, at *34-35 (9th Cir. Jun. 6, 2022)
(Samsung’s Brief on Cross-Appeal). Samsung’s recently filed Memorandum of
Contentions of Fact and Law (Dkt. 402) has made clear it intends to attempt to present
the same argument to the jury. Under “Key Evidence in Opposition” Samsung lists
“Evidence of true supply agreements the parties have entered, which are materially
different in structure, language and substance from the JDLA.”

Dated: February 28, 2024 Respectfully submitted,

IRELL & MANELLA LLP
A. Matthew Ashley
Jason Sheasby
Michael Harbour


By: /s/ Jason Sheasby
Jason Sheasby