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ARTICLE · 26 AUGUST 2016

Experts' Foreign Analysts Subject To Deposition

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In an ongoing dispute between Ericsson and TCL in the Central District of California over patents allegedly essential to a European Telecommunications Standards Institute standard, TCL retained two testifying experts to analyze the entire universe of patents declared essential to ETSI—over 170,000 of them—for certain basic information, as well as an analysis of how many of them are actually essential.

United StatesIntellectual Property
Mark Hannemann
Mark Hannemann
Thomas Makin
Thomas Makin
Eric Lucas
Eric Lucas
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In an ongoing dispute between Ericsson and TCL in the Central District of California over patents allegedly essential to a European Telecommunications Standards Institute ("ETSI") standard, TCL retained two testifying experts to analyze the entire universe of patents declared essential to ETSI—over 170,000 of them—for certain basic information, as well as an analysis of how many of them are actually essential. Given the gargantuan task, TCL hired two consulting firms in India—an Ernst & Young group and Concur IP—with the U.S.-based testifying experts overseeing the work of the Indian teams. Each team had a leader in India, and Ericsson sought to depose those Indian team leaders.1

Overruling the magistrate judge, the district judge granted Ericsson's request to depose the team leaders in India. The court concluded that Ericsson did not have sufficient opportunity to cross-examine the evidence through the testifying experts alone. The district judge found, based on the

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