Case 4:09-cv-01827 Document 158 Filed in TXSD on 04/13/11 Page 1 of 4
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF TEXAS
`HOUSTON DIVISION
`
`CIVIL ACTION NO. 4:09-cv-01827
`
`Judge Keith P. Ellison
`
`JURY TRIAL DEMANDED
`
`§§§§§
`
`§§
`
`§§§§§§
`
`§
`
`WESTERNGECO L.L.C.,
`
`Plaintiff,
`
`V.
`
`ION GEOPHYSICAL CORPORATION,
`FUGRO-GEOTEAM, INC.,
`FUGRO-GEOTEAM AS,
`FUGRO NORWAY MARINE SERVICES
`AS, FUGRO, INC., FUGRO (USA), INC. and
`GEOSERVICES, INC.,
`
`Defendants.
`
`UNOPPOSED NOTICE OF APPLICATION
`FOR ISSUANCE OF LETTER OF REQUEST
`
`TO:
`
`ALL PARTIES AND THEIR COUNSEL OF RECORD HEREIN
`
`PLEASE TAKE NOTICE that Defendant ION Geophysical Corporation ("ION" or
`
`"Defendant") hereby applies to the Court, pursuant to Federal Rule of Civil Procedure 28(b), for
`
`the issuance of a Letter of Request to The Royal Ministry of Justice and Police, Department of
`
`Civil Affairs, P.O. Box 8005, Dep. 0030, Oslo, Norway, to enable ION to secure the production
`
`of documents and to obtain oral testimony from the following individual:
`
`Oyvind Hillesund ("Mr. Hillesund")
`c/o Petroleum Geophysical Services
`Strandveien 4
`N-1326 Lysaker
`Oslo, Norway
`
`Good cause exists for the grant of this Application in that this witness will provide
`
`testimony that is important to ION to establish elements of its defenses and to rebut Plaintiffs
`
`claims, as set forth in more detail in the Letter of Request and ION understands that it will take
`
`some time for the Court in Norway to act on the Letter of Request. The other parties have been
`
`2217474vl
`
`WESTERNGECO Exhibit 2096, pg. 1
`PGS v. WESTERNGECO
`IPR2014-01478
`
`

`
`Case 4:09-cv-01827 Document 158 Filed in TXSD on 04/13/11 Page 2 of 4
`
`given timely notice of this Application and do not oppose this Application, as set forth in the
`
`attached Declaration of Ray T. Torgerson, ~ 5.
`
`Pursuant to a prior Letter of Request
`
`issued by this Court on June 29, 2010, Mr.
`
`Hillesund was deposed by the parties on October 20, 2010, before Judge Anne Cathrine Haug in
`
`the Asker Brerum Court in Sandvika, Norway. At that time, the Norwegian Court did not permit
`
`ION's counsel to examine Mr. Hillesund on certain matters, concluding that they were not
`
`addressed in the original requested topics of testimony and observing that ION could seek a new
`
`Letter of Request to cover additional
`
`topics. After subsequent briefing by the parties in
`
`November and December 2010 on whether the original Letter of Request covered the additional
`
`topics,
`
`the Norwegian Court denied ION's request
`
`to resume Mr. Hillesund's deposition.
`
`Accordingly, ION now seeks a new Letter of Request setting out additional topics of testimony
`
`directed to Mr. Hillesund on which ION previously was not permitted to inquire.
`
`This Application is based on the attached Memorandum of Points and Authorities, the
`
`Declaration of Ray T. Torgerson, the proposed Letter of Request lodged concurrently herewith,
`
`the pleadings and papers on file in this action, and any evidence and argument that may be
`
`presented at the hearing on this Application.
`
`221 7474v I
`
`2
`
`WESTERNGECO Exhibit 2096, pg. 2
`PGS v. WESTERNGECO
`IPR2014-01478
`
`

`
`Case 4:09-cv-01827 Document 158 Filed in TXSD on 04/13/11 Page 3 of 4
`
`Dated: April 13,2011.
`
`Respectfully submitted,
`
`_
`
`/s/ Ray T. Torgerson
`David Burgert
`LEAD ATTORNEY
`State Bar No. 03378300
`dburgert@porterhedges.com
`Ray T. Torgerson
`State Bar No. 24003067
`rtorgerson@polierhedges.com
`Paul A. Dyson
`State Bar No. 24059704
`pdyson(cV,porterhedges.com
`PORTER HEDGES LLP
`1000 Main Street, 36th Floor
`Houston, Texas 77002-6336
`Telephone: (713) 226-6668
`Facsimile:
`(713) 226-6268
`
`ATTORNEYS FOR DEFENDANT
`ION GEOPHYSICAL CORPORATION
`
`CERTIFICATE OF CONFERENCE
`
`I hereby certify that I conferred with Timothy Gilman, counsel for WesternGeco, and
`Gordon Arnold, counsel for the Fugro entities, regarding this Application, and WesternGeco and
`Fugro indicated they were unopposed to this Application.
`
`/s/ Ray T. Torgerson
`Ray T. Torgerson
`
`2217474vl
`
`3
`
`WESTERNGECO Exhibit 2096, pg. 3
`PGS v. WESTERNGECO
`IPR2014-01478
`
`

`
`Case 4:09-cv-01827 Document 158 Filed in TXSD on 04/13/11 Page 4 of 4
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that on the 13th day of April, 2011, the foregoing was
`electronically filed with the Clerk of Court using the CMIECF system which will send
`notification of such filing to the following:
`
`Gordon Arnold, Esq.
`ARNOLD & KNOBLOCH L.L.P.
`4900 Woodway, Suite 900
`Houston, Texas 77056
`Telephone: (713) 972-1649
`Facsimile: (713) 972-1180
`
`John M. Elsley, Esq.
`Rachel de Cordova, Esq.
`ROYSTON, RAYZOR, VICKERY &
`WILLIAMS, L.L.P.
`711 Louisiana, Suite 500
`Houston, Texas 77002-6418
`Telephone: (713) 224-8380
`Facsimile: (713) 225-9945
`
`ATTORNEYS FOR DEFENDANTS,
`FUGRO-GEOTEAM, INC.,
`FUGRO, INC.,
`FUGRO (USA), INC., AND
`FUGRO GEOSERVICES, INC.
`
`Lee L. Kaplan, Esq.
`Attorney in Charge
`SMYSER KAPLAN & VESELKA, L.L.P.
`700 Louisiana, Suite 2300
`Houston, TX 77002
`Tel: 713-221-2323
`Fax: 713-221-2320
`E-mail:
`lkaplan@skv.com
`
`Timothy K. Gilman, Esq.
`Xiaoyan Zhang, Esq.
`Simeon G. Papacostas, Esq.
`KIRKLAND & ELLIS L.L.P.
`601 Lexington Avenue - 36th Floor
`New York, NY 10022-4675
`Tel: 212-446-4689
`Main: 212-446-4800
`Fax: 212-446-4900
`E-mail:
`tgilman@kirkland.com
`E-mail:
`jdesmarais@kirkland.com
`E-mail: xzhang@kirkland.com
`E-mail: spapacostas@kirkland.com
`
`Gregg F. LoCascio, P.C.
`KIRKLAND & ELLIS L.L.P.
`655 Fifteenth Street, N.W.
`Washington, D.C. 20005
`Tel: 202-879-5290
`E-mail: glocascio0).kirkland.com
`
`ATTORNEYS FOR PLAINTIFF
`WESTERNGECO L.L.C.
`
`lsi Ray T. Torgerson
`Ray T. Torgerson
`
`221 7474v 1
`
`4
`
`WESTERNGECO Exhibit 2096, pg. 4
`PGS v. WESTERNGECO
`IPR2014-01478
`
`

`
`Case 4:09-cv-01827 Document 158-1 Filed in TXSD on 04/13/11 Page 1 of 6
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF TEXAS
`HOUSTON DIVISION
`
`CIVIL ACTION NO. 4:09-cv-01827
`
`Judge Keith P. Ellison
`
`JURY TRIAL DEMANDED
`
`§§§§§
`
`§§
`
`§§§§§§
`
`§
`
`WESTERNGECO L.L.C.,
`
`Plaintiff,
`
`V.
`
`ION GEOPHYSICAL CORPORATION,
`FUGRO-GEOTEAM, INC.,
`FUGRO-GEOTEAM AS,
`FUGRO NORWAY MARINE SERVICES
`AS, FUGRO, INC., FUGRO (USA), INC. and
`GEOSERVICES, INC.,
`
`Defendants.
`
`MEMORANDUM OF POINTS AND AUTHORITIES
`
`Defendant ION Geophysical Corporation ("ION" or "Defendant") respectfully requests
`
`that this Court issue the Letter of Request attached as Exhibit 1 to the accompanying Declaration
`
`of Ray T. Torgerson ("Torgerson Decl."), and lodged concurrently herewith, directed to The
`
`Royal Ministry of Justice and Police, Norway. The Letter requests the examination of the
`
`following individual by deposition, and requests the production of documents from the
`
`individual relating to the above-captioned action:
`
`Oyvind Hillesund ("Mr. Hillesund")
`c/o Petroleum Geophysical Services
`Strandveien 4
`N-1366 Lysaker
`Oslo, Norway
`
`ION expects that the requested documents and testimony will provide evidence that will
`
`assist ION in establishing its defenses and rebutting Plaintiffs claims in this action, as set forth
`
`in more detail below and in the Letter of Request. The other parties to this action does not
`
`oppose this Application. See Torgerson Decl. ~ 5. An application is appropriate in this instance
`
`22 I7494v I
`
`WESTERNGECO Exhibit 2096, pg. 5
`PGS v. WESTERNGECO
`IPR2014-01478
`
`

`
`Case 4:09-cv-01827 Document 158-1 Filed in TXSD on 04/13/11 Page 2 of 6
`
`given the nature and importance of the evidence in Norway.
`
`ION has no other alternative but to
`
`seek this Letter of Request, as the witness in Norway is not a party and cannot be compelled to
`
`appear in any other manner.
`
`Further, when ION deposed Mr. Hillesund on October 20, 2010, before Judge Anne
`
`Cathrine Haug in the Asker Rerum Court in Sandvika, Norway, pursuant to a prior Letter of
`
`Request issued by this Court on June 29, 2010, the Norwegian Court did not permit ION's
`
`counsel to examine Mr. Hillesund on certain matters, concluding that they were not addressed in
`
`the original requested topics of testimony and observing that ION could seek a new Letter of
`
`Request to cover additional topics. After subsequent briefing by the parties in November and
`
`December 2010 on whether the original Letter of Request covered the additional topics, the
`
`Norwegian Court denied ION's request to resume Mr. Hillesund's deposition. Accordingly, ION
`
`submits a new Letter of Request setting out additional topics of testimony directed to Mr.
`
`Hillesund on which ION previously was not permitted to inquire. Defendant understands that it
`
`will take some time for the court in Norway to act on the Letter of Request. Defendant
`
`respectfully submits that no reason exists that would prevent this Court from issuing the Letter of
`
`Request.
`
`A.
`
`The Hague Convention
`
`Article 1 of the Hague Convention on the Taking of Evidence Abroad in Civil or
`
`Commercial Matters ("Hague Convention") empowers a judicial authority of a signatory state to
`
`request the competent authority of another signatory state to obtain evidence by means of Letter
`
`of Request.
`
`See Hague Convention and 28 U.S.C. § 1781 (attached to Torgerson Decl. as
`
`Exhibit 2). Both Norway and the United States of America are signatories to the Hague
`
`Convention. Pursuant to its authority in Article 2, Norway has designated The Royal Ministry of
`
`Justice and Police as its central authority to receive Letters of Request. Consequently, this Court
`
`2217494vl
`
`2
`
`WESTERNGECO Exhibit 2096, pg. 6
`PGS v. WESTERNGECO
`IPR2014-01478
`
`

`
`Case 4:09-cv-01827 Document 158-1 Filed in TXSD on 04/13/11 Page 3 of 6
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`properly may issue a Letter of Request to that authority. Pursuant to Federal Rule of Civil
`
`Procedure 28(b), the Letter of Request is to be issued on application and notice and on terms that
`
`are just and appropriate. Rule 28(b) further provides: "[a] letter of request, a commission, or
`
`both may be issued
`
`.. without a showing taking the deposition in another manner is
`
`impracticable or inconvenient." The other parties to this action do not oppose this Application.
`
`Torgerson Decl., ~ 5.
`
`B.
`
`Background to Application
`
`ION seeks issuance of the Letter of Request because it seeks discovery from the deponent
`
`regarding matters that are critical to ION's case. See Torgerson Decl., ~ 6. Plaintiff filed its
`
`Complaint for patent
`
`infringement on June 12, 2009. On June 16, 2009, ION answered
`
`Plaintiffs complaint and asserted various counterclaims. On July 9, 2009, Plaintiff filed its
`
`answer to ION's counterclaims adding other counterclaims.
`
`ION alleges that Plaintiff infringes
`
`U.S. Patent No. 6,525,992 (the '''992 Patent"). Plaintiff asserts that defendants infringe five
`
`patents-U.S. Patent Nos. 6,691,038 (the "'038 Patent"), 6,932,017 (the "'017 Patent"),
`
`7,080,607 (the "'607 Patent"), 7,162,967 (the "'967 Patent), and 7,293,520 (the "'520 Patent").
`
`The '017, '607, '967, and '520 Patents are referred to as the "Bittleston Patents."
`
`The six patents-in-suit are directed to technology for positioning marine seismic
`
`streamers used to conduct offshore seismic surveys. Marine seismic surveys use a ship to tow an
`
`array of numerous streamers through the water. Each streamer is typically more than 3 km in
`
`length and contains a multitude of seismic sensors, called hydrophones, which collect acoustic
`
`data reflected from the subsurface of the ocean. Air guns, or other signal sources, generate the
`
`acoustic signals that create the data collected by the hydrophones. Ultimately, this collected data
`
`is analyzed and processed, yielding an image of the subsurface geology, which is often referred
`
`22 I7494v I
`
`3
`
`WESTERNGECO Exhibit 2096, pg. 7
`PGS v. WESTERNGECO
`IPR2014-01478
`
`

`
`Case 4:09-cv-01827 Document 158-1 Filed in TXSD on 04/13/11 Page 4 of 6
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`to as a "survey." Ideally, the streamers remain at a specific depth and lateral position relative to
`
`each other while the data is collected. This stability yields a more consistent and accurate
`
`survey.
`
`C.
`
`Relevance of Discovery Sought
`
`The discovery requested in Norway is directly relevant to these issues, as set forth in
`
`detail in the Letter of Request. See Torgerson Decl., Ex. 1. The reasons will be summarized
`
`here. Mr. Hillesund is a former employee of Plaintiff, who was deeply involved in the
`
`development of Plaintiffs Q-Fin streamer steering device, control system, and related products.
`
`Further, Mr. Hillesund is a current employee of Petroleum Geo-Services ("PGS"), a customer of
`
`ION using certain products that Plaintiff accuses of infringing its patents-in-suit,
`
`including
`
`DigiFIN. Therefore, Mr. Hillesund possesses relevant, necessary information regarding the
`
`alleged infringement of WestemGeco's patents by ION.
`
`In addition, in conjunction with his
`
`work at PGS, Mr. Hillesund is familiar with a new lateral steering device, known as the e-Bird,
`
`which PGS has developed with Kongsberg and may represent a non-infringing substitute product
`
`in the marine seismic industry.
`
`Further, because Mr. Hillesund is no longer employed by
`
`Plaintiff, ION is unable to obtain his deposition testimony and any relevant documents by any
`
`other means than a Letter of Request.
`
`D.
`
`Letter of Request
`
`Consequently, ION seeks, through the Letter of Request, that the Court in Norway issue a
`
`summons compelling Oyvind Hillesund to appear in the designated local court of law in Norway
`
`at an appropriate time and date to give testimony under oath by question and answers upon oral
`
`depositions, such depositions to continue from day-to-day until completion. Topics of the
`
`testimony that would be taken are attached as Exhibit A to the Letter of Request.
`
`22 17494v 1
`
`4
`
`WESTERNGECO Exhibit 2096, pg. 8
`PGS v. WESTERNGECO
`IPR2014-01478
`
`

`
`Case 4:09-cv-01827 Document 158-1 Filed in TXSD on 04/13/11 Page 5 of 6
`
`CONCLUSION
`
`For all
`
`the foregoing reasons, Defendant ION Geophysical Corporation respectfully
`
`requests that the Court grant the Application in its entirety, and the Court should issue the
`
`requested Letter of Request, lodged separately.
`
`Dated: April 13,2011
`
`Respectfully submitted,
`
`lsi Ray T. Torgerson
`David Burgert
`LEAD ATTORNEY
`State Bar No. 03378300
`dburgertcmporterhedges.com
`Ray T. Torgerson
`State Bar No. 24003067
`rtorgerson@pOlierhedges.com
`Paul A. Dyson
`State Bar No. 24059704
`pdyson@porterhedges.com
`PORTER HEDGES LLP
`1000 Main Street, 36th Floor
`Houston, Texas 77002-6336
`Telephone: (713) 226-6668
`Facsimile:
`(713) 226-6268
`
`ATTORNEYS FOR DEFENDANT
`ION GEOPHYSICAL CORPORATION
`
`CERTIFICATE OF CONFERENCE
`
`I hereby certify that I conferred with Timothy Gilman, counsel for WesternGeco, and
`Gordon Arnold, counsel for the Fugro entities, regarding this Application, and WesternGeco and
`Fugro indicated they were unopposed to this Application.
`
`lsi Ray T. Torgerson
`Ray T. Torgerson
`
`2217494vl
`
`5
`
`WESTERNGECO Exhibit 2096, pg. 9
`PGS v. WESTERNGECO
`IPR2014-01478
`
`

`
`Case 4:09-cv-01827 Document 158-1 Filed in TXSD on 04/13/11 Page 6 of 6
`
`CERTIFICATE OF SERVICE
`The undersigned hereby certifies that on the 13th day of April, 2011, the foregoing was
`electronically filed with the Clerk of Court using the CMIECF system which will send
`notification of such filing to the following:
`
`Lee L. Kaplan, Esq.
`Attorney in Charge
`SMYSER KAPLAN & VESELKA, L.L.P.
`700 Louisiana, Suite 2300
`Houston, TX 77002
`Tel: 713-221-2323
`Fax: 713-221-2320
`E-mail:
`lkaplan@skv.com
`
`Timothy K. Gilman, Esq.
`Xiaoyan Zhang, Esq.
`Simeon G. Papacostas, Esq.
`KIRKLAND & ELLIS L.L.P.
`601 Lexington Avenue - 36th Floor
`New York, NY 10022-4675
`Tel: 212-446-4689
`Main: 212-446-4800
`Fax: 212-446-4900
`E-mail:
`tgilman(a)kirkland.com
`E-mail:
`jdesmarais(a)kirkland.com
`E-mail: xzhang@kirkland.com
`E-mail: spapacostas(a)kirkland.com
`
`Gregg F. LoCascio, P.C.
`KIRKLAND & ELLIS L.L.P.
`655 Fifteenth Street, N.W.
`Washington, D.C. 20005
`Tel: 202-879-5290
`E-mail: glocascio(a)kirkland.com
`
`ATTORL~EYS FOR PLAINTIFF
`WESTERNGECO L.L.C.
`
`Gordon Arnold, Esq.
`ARNOLD & KNOBLOCH L.L.P.
`4900 Woodway, Suite 900
`Houston, Texas 77056
`Telephone: (713) 972-1649
`Facsimile: (713) 972-1180
`
`John M. Elsley, Esq.
`Rachel de Cordova, Esq.
`ROYSTON, RAYZOR, VICKERY &
`WILLIAMS, L.L.P.
`711 Louisiana, Suite 500
`Houston, Texas 77002-6418
`Telephone: (713) 224-8380
`Facsimile: (713) 225-9945
`
`ATTORNEYS FOR DEFENDANTS,
`FUGRO-GEOTEAM, INC.,
`FUGRO, INC.,
`FUGRO (USA), INC., AND
`FUGRO GEOSERVICES, INC.
`
`lsi Ray T. Torgerson
`Ray T. Torgerson
`
`22 17494vl
`
`6
`
`WESTERNGECO Exhibit 2096, pg. 10
`PGS v. WESTERNGECO
`IPR2014-01478
`
`

`
`Case 4:09-cv-01827 Document 158-2 Filed in TXSD on 04/13/11 Page 1 of 2
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF TEXAS
`HOUSTON DIVISION
`
`CIVIL ACTION NO. 4:09-cv-01827
`
`Judge Keith P. Ellison
`
`JURY TRIAL DEMANDED
`
`§§§§§
`
`§§
`
`§§§§§§
`
`§
`
`WESTERNGECO L.L.c.,
`
`Plaintiff,
`
`V.
`
`ION GEOPHYSICAL CORPORATION,
`FUGRO-GEOTEAM, INC.,
`FUGRO-GEOTEAM AS,
`FUGRO NORWAY MARINE SERVICES
`AS, FUGRO, INC., FUGRO (USA), INC. and
`GEOSERVICES, INC.,
`
`Defendants.
`
`DECLARATION OF RAY T. TORGERSON
`
`I, Ray T. Torgerson, the undersigned, hereby declare as follows:
`
`1.
`
`My name is Ray T. Torgerson. I am over eighteen years of age, of sound mind,
`
`and in all ways qualified and competent to make this declaration.
`
`I have personal knowledge of
`
`the facts contained in this declaration and they are true and correct.
`
`2.
`
`I am licensed to practice law in the State of Texas and Federal Courts in the
`
`Southern District of Texas.
`
`I am a partner in the law firm of Porter Hedges LLP, located in
`
`Houston, Texas, and my firm represents Defendant ION Geophysical Corporation ("ION" or
`
`"Defendant") in this litigation.
`
`3.
`
`Attached as Exhibit 1 hereto is a true and correct copy ofION's Letter of Request
`
`for Deposition Testimony of Oyvind Hillesund ("Mr. Hillesund"), which includes as exhibits a
`
`copy of list of topics covered in the prior deposition of Mr. Hillesund (Exhibit A) and the topics
`
`of the proposed deposition (Exhibit B).
`
`WESTERNGECO Exhibit 2096, pg. 11
`PGS v. WESTERNGECO
`IPR2014-01478
`
`

`
`Case 4:09-cv-01827 Document 158-2 Filed in TXSD on 04/13/11 Page 2 of 2
`
`4.
`
`Attached as Exhibit 2 hereto is a true and correct copy of the Hague Convention
`
`on the Taking of Evidence Abroad in Civil or Commercial Matters, and the text of 28 U.S.C. §
`
`1781.
`
`5.
`
`Attached as Exhibit 3 hereto is a true and correct copy of ION's Request for
`
`Service Abroad of Judicial or Extrajudicial Documents.
`
`6.
`
`Attached as Exhibit 4 hereto is a true and correct copy of ION's Request for
`
`International Assistance pursuant to the Hague Convention of 18 March 1970 on the Taking of
`
`Evidence Abroad in Civil or Commercial Matters.
`
`7.
`
`Notice of ION's intention to apply for this Letter of Request was communicated
`
`to counsel for Plaintiff and Co-Defendants, and they were unopposed.
`
`8.
`
`The deposition testimony of Oyvind Hillesund is critical to ION's case. Mr.
`
`Hillesund is a former employee of Plaintiff, who was deeply involved in the development of
`
`Plaintiff's streamer steering devices and their control systems. Mr. Hillesund is also a current
`
`employee of Petroleum Geo-Services ("PGS"), a current customer of ION (i) using certain
`
`products that Plaintiff accuses of infringing its patents-in-suit,
`
`including DigiFIN, and (ii)
`
`developing its own competitive product capable of providing lateral and horizontal steering
`
`control over seismic streamers.
`
`I declare under penalty of perjury under the laws of the United States of America that the
`
`foregoing is true and correct and that this declaration is executed in Houston, Texas on April 13,
`
`2011.
`
`lsi Ray T. Torgerson
`Ray T. Torgerson
`
`2217481JDOC
`
`2
`
`WESTERNGECO Exhibit 2096, pg. 12
`PGS v. WESTERNGECO
`IPR2014-01478
`
`

`
`Case 4:09-cv-01827 Document 158-3 Filed in TXSD on 04/13/11 Page 1 of 16
`
`EXHIBIT 1
`to
`Declaration of Ray T. Torgerson
`
`WESTERNGECO Exhibit 2096, pg. 13
`PGS v. WESTERNGECO
`IPR2014-01478
`
`

`
`Case 4:09-cv-01827 Document 158-3 Filed in TXSD on 04/13/11 Page 2 of 16
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF TEXAS
`HOUSTON DIVISION
`
`CIVIL ACTION NO. 4:09-cv-01827
`
`Judge Keith P. Ellison
`
`JURY TRIAL DEMANDED
`
`§§§§§
`
`§§
`
`§§§§§§
`
`§
`
`WESTERNGECO L.L.c.,
`
`Plaintiff,
`
`V.
`
`ION GEOPHYSICAL CORPORATION,
`FUGRO-GEOTEAM, INC.,
`FUGRO-GEOTEAM AS,
`FUGRO NORWAY MARINE SERVICES
`AS, FUGRO, INC., FUGRO (USA), INC. and
`GEOSERVICES, INC.,
`
`Defendants.
`
`FROM:
`
`TO:
`
`LETTER OF REQUEST
`
`The United States District Court for the Southern District of Texas,
`United States of America
`
`The Royal Ministry of Justice and Police
`Department of Civil Affairs
`P.O. Box 8005 Dep
`0030 Oslo, Norway
`
`I.
`
`PARTIES AND THEIR REPRESENTATIVES
`
`A.
`
`Plaintiff
`
`The Plaintiff in this action (the "U.S. Action") is WesternGeco, L.L.C. ("WesternGeco"
`
`or "Plaintiff'). The Plaintiff is represented in the United States by:
`
`Timothy K. Gilman
`tgilman@kirkland.com
`KIRKLAND & ELLIS LLP
`601 Lexington Avenue
`New York, New York 10022
`Tel: (212) 446-4800
`Fax: (212) 446-4900
`
`2215933vl
`
`WESTERNGECO Exhibit 2096, pg. 14
`PGS v. WESTERNGECO
`IPR2014-01478
`
`

`
`Case 4:09-cv-01827 Document 158-3 Filed in TXSD on 04/13/11 Page 3 of 16
`
`Gregg F. LoCascio, P.e.
`glocascio@kirldand.com
`KIRKLAND & ELLIS LLP
`655 Fifteenth Street, N.W.
`Washington, D.C. 20005
`Tel: (202) 879-5290
`Fax: (202) 879-5200
`
`Lee L. Kaplan
`lkaplan@skv.com
`SMYSER KAPLAN & VESELKA, LLP
`Bank of America Center
`700 Louisiana, Suite 2300
`Houston, Texas 77002
`Tel: (713) 221-2323
`Fax: (713) 221-2320
`
`Additionally, Plaintiff has engaged the following counsel in Norway:
`
`Amund Brede Svendsen
`GRETTE ADVOKATFIRMAET DA
`Hieronymus Heyerdahlsgata 1
`P.O. Box 1397 Vika
`0114 Oslo, Norway
`Tel: 4722340000
`Fax: 4722340001
`
`B.
`
`Defendants
`
`The Defendants in the U.S. Action are ION Geophysical Corporation ("ION" or
`
`"Defendant")), Fugro-Geoteam, Inc., Fugro, Inc., Fugro (USA), Inc. and Fugro Geoservices, Inc.
`
`(collectively, the "Fugro Defendants"). ION is represented in the United States by:
`
`David L. Burgert
`Ray T. Torgerson
`Paul A. Dyson
`PORTER HEDGES, LLP
`1000 Main Street, 36th Floor
`Houston, Texas 77002
`Tel: (713) 226-6000
`Fax: (713) 228-1331
`
`ION has engaged the following counsel in Norway:
`
`2215933vl
`
`2
`
`WESTERNGECO Exhibit 2096, pg. 15
`PGS v. WESTERNGECO
`IPR2014-01478
`
`

`
`Case 4:09-cv-01827 Document 158-3 Filed in TXSD on 04/13/11 Page 4 of 16
`
`Rolf Trolle Andersen
`Cathrine M0ller Faaberg
`ADVOKATFIRMAET HJORT DA
`Akersgata 51
`P.O. Box 471 Sentrum
`0105 Oslo, Norway
`Tel: 472247 1800
`Fax: 472247 18 18
`
`The Fugro Defendants are represented in the United States by:
`
`Gordon Arnold
`ARNOLD & KNOBLOCH LLP
`4900 Woodway, Suite 900
`Houston, Texas 77056
`Tel: (713) 972-1649
`Fax: (713) 972-1180
`
`John M. Elsley
`Rachel de Cordova
`ROYSTON, RAYZOR, VICKERY & WILLIAMS, LLP
`711 Louisiana, Suite 500
`Houston, Texas 77002-6418
`Tel: (713) 224-8380
`Fax: (713) 225-9945
`
`C.
`
`Third Parties
`
`The third party witness from whom evidence is requested herein is as follows:
`
`Oyvind Hillesund ("Mr. Hillesund")
`Breiviklia 35
`Nesbru 1394
`Norway
`and
`c/o Petroleum Geophysical Services
`Strandveien 4
`N-1366 Lysaker
`Oslo, Norway
`
`Mr. Hillesund's legal representative in Norway is:
`
`Stig Gunleiksrud
`ARNTZEN DE BESCHE ADVOKATFIRMA AS
`Bygd0Y alle 2
`P.O. Box 2734 Solli
`
`2215933vl
`
`3
`
`WESTERNGECO Exhibit 2096, pg. 16
`PGS v. WESTERNGECO
`IPR2014-01478
`
`

`
`Case 4:09-cv-01827 Document 158-3 Filed in TXSD on 04/13/11 Page 5 of 16
`
`0204 Oslo, Norway
`Tel: 4723 894000
`Fax: 4723 894001
`
`II.
`
`NATURE OF THE PROCEEDINGS
`
`The U.S. Action is an action for patent infringement under U.S. law.
`
`III.
`
`CURRENT STATE OF PROCEEDINGS
`
`Following the consolidation of suits involving the Fugro Defendants, the Court in the
`
`U.S. Action suspended all deadlines. As such, no trial date is presently set.
`
`ION contends that
`
`the orders requested herein are necessary to the U.S. Action in order to provide a full trial of the
`
`issues raised by the parties. Plaintiff and Defendants already have begun conducting discovery
`
`in accordance with United States procedure. ION has currently sought documents from Plaintiff
`
`and propounded on Plaintiff written questions relevant to the issues in the case. Plaintiff has also
`
`issued subpoenas for documents and testimony to third parties in the United States with
`
`knowledge of relevant facts.
`
`Expeditious issuance of the orders requested herein is claimed by ION to be necessary to
`
`enable the parties to complete discovery and prepare for trial.
`
`United States Federal Rule of Civil Procedure 28(b) expressly permits the taking of
`
`depositions and the obtaining of documents in foreign countries. However, under the applicable
`
`procedural rules in the United States, ION cannot compel deposition testimony or document
`
`production from such persons except by the procedure being utilized here.
`
`IV.
`
`THE WITNESS IN NORWAY
`
`A.
`
`Oyvind Hillesund
`
`Oyvind Hillesund is a resident of Norway, and is believed to reside at Breiviklia 35,
`
`Nesbru 1394.
`
`Hillesund is employed by Petroleum Geophysical Services ("PGS") at
`
`Strandveien 4, P.O. Box 89, N-1326 Lysaker, Oslo, Norway.
`
`2215933vl
`
`4
`
`WESTERNGECO Exhibit 2096, pg. 17
`PGS v. WESTERNGECO
`IPR2014-01478
`
`

`
`Case 4:09-cv-01827 Document 158-3 Filed in TXSD on 04/13/11 Page 6 of 16
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`Defendant contends that Oyvind Hillesund has personal knowledge of facts and
`
`information about the patents at issue in the U.S. Action. Oyvind Hillesund is a co-inventor on
`
`several of the patents in suit in the U.S. Action. Defendant further contends that Oyvind
`
`Hillesund has personal knowledge of facts and information regarding the identity of the inventor
`
`of the items covered by said patents. As a former employee ofWesternGeco, Mr. Hillesund was
`
`deeply involved in the development of Plaintiff's Q-Fin streamer steering device, control system,
`
`and related products. Accordingly, Defendant contends that Oyvind Hillesund has personal
`
`knowledge of facts and information about the validity and unenforceability of the patents at
`
`issue. These are among the issues hotly contested in the U.S. Action.
`
`Further, Mr. Hillesund is a current employee of PGS, a customer of Defendant ION using
`
`certain products that Plaintiff accuses of infringing its patents-in-suit,
`
`including DigiFIN.
`
`Therefore, ION contends that Mr. Hillesund possesses relevant, necessary information regarding
`
`the alleged infringement of certain U.S. patents.
`
`In addition, in conjunction with his work at PGS, Mr. Hillesund is familiar with a new
`
`lateral steering device, known as the e-Bird, which PGS has developed with Kongsberg and may
`
`represent a non-infringing substitute product in the marine seismic industry.
`
`These facts and information are material to the issues of the direct infringement of the
`
`patents under U.S. law. Defendant seeks to examine Oyvind Hillesund concerning these facts
`
`and circumstances. Defendant contends that Oyvind Hillesund's testimony is important to a
`
`complete trial of the issues raised by the parties.
`
`B.
`
`Mr. Hillesund's Prior Testimony
`
`Pursuant to a prior Letter of Request
`
`issued by this Court on June 29, 2010, Mr.
`
`Hillesund was deposed by the parties on October 20, 2010, before Judge Anne Cathrine Haug in
`
`2215933vl
`
`5
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`WESTERNGECO Exhibit 2096, pg. 18
`PGS v. WESTERNGECO
`IPR2014-01478
`
`

`
`Case 4:09-cv-01827 Document 158-3 Filed in TXSD on 04/13/11 Page 7 of 16
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`the Asker Brerum Court in Sandvika, Norway. A copy of the topics of testimony covered in the
`
`prior deposition of Mr. Hillesund is attached hereto as Exhibit A.
`
`The Norwegian Court did not permit ION's counsel to examine Mr. Hillesund on certain
`
`matters, concluding that they were not addressed in the original requested topics of testimony
`
`and observing that ION could seek a new Letter of Request to cover additional topics. After
`
`subsequent briefing by the parties in November and December 2010 on whether the original
`
`Letter of Request covered the additional topics, the Norwegian Court denied ION's request to
`
`resume Mr. Hillesund's deposition. Accordingly, ION submits a new Letter of Request setting
`
`out additional topics of testimony directed to Mr. Hillesund on which ION previously was not
`
`permitted to inquire.
`v.
`
`REQUEST FOR AID IN OBTAINING TESTIMONY OF WITNESS
`
`IT IS THEREFORE REQUESTED that:
`
`1.1
`
`A summons be issued compelling Oyvind Hillesund to appear in the designated
`
`local court of law at an appropriate date and time, to give testimony under oath by question and
`
`answers upon oral deposition, such depositions to continue from day to day until completion.
`
`Topics of the testimony that would be taken are attached hereto as Exhibit B.
`
`1.2
`
`The following attorneys, admitted and in good standing in the United States, be
`
`allowed to question the witnesses regarding the issues identified herein during the deposition that
`
`is the subject of this Letter of Request: David L. Burgert and Ray T. Torgerson. These attorneys
`
`are trial lawyers for Defendant in the U.S. Action, have been heavily involved in the U.S. Action,
`
`and are very familiar with the proceedings and the issues in this action in the United States, as
`
`well as the issues that will be the subject of the deposition in Norway. This action has been
`
`pending in the United States since June 12, 2009, and a substantial amount of discovery and
`
`other pretrial proceedings have occurred.
`
`It would be extremely time consuming, expensive, and
`
`2215933vl
`
`6
`
`WESTERNGECO Exhibit 2096, pg. 19
`PGS v. WESTERNGECO
`IPR2014-01478
`
`

`
`Case 4:09-cv-01827 Document 158-3 Filed in TXSD on 04/13/11 Page 8 of 16
`
`inefficient for Defendant's U.S. counsel to educate a Norwegian attorney in these various issues,
`
`many of which are complicated,
`
`technical
`
`issues. Defendant is of the view that the most
`
`effective and efficient deposition of the witness would be taken by U.S. attorneys who are well
`
`versed in the relevant issues in the U.S. Action.
`
`1.3
`
`Timothy Gilman, Lee L. Kaplan, or other counsel of record for the Plaintiff in the
`
`U.S. Action be allowed to question the witness.
`
`1.4
`
`Gordon Arnold or other counsel of record for the Fugro Defendants in the U.S.
`
`Action be allowed to question the witness.
`
`VI.
`
`TRANSCRIPTION AND VIDEOTAPING OF DEPOSITION
`
`IT IS FURTHER REQUESTED that:
`
`1.5
`
`The deposition of Oyvind Hillesund be videotaped and transcribed as the
`
`deposition is being given, and the transcript of the deposition be signed and certified as correct
`
`by the witness;
`
`1.6
`
`The transcript and videotape of the deposition be authenticated by the Examiner
`
`nominated pursuant to section XIII below, and filed with the Royal Ministry of Justice and
`
`Police Registrar for transmittal to this Court at the following address:
`
`Clerk of the Honorable Judge Keith P. Ellison
`United States District Court for the Southern District of Texas
`Houston Division
`P.O. Box 61010
`Houston, Texas 77208
`United States of America
`
`1.7
`
`Certified copies of the transcript and videotape of the deposition be made as soon
`
`as practicable after the deposition has been taken, and sent to counsel for Defendant as follows:
`
`2215933vl
`
`7
`
`WESTERNGECO Exhibit 2096, pg. 20
`PGS v. WESTERNGECO
`IPR2014-01478
`
`

`
`Case 4:09-cv-01827 Document 158-3 Filed in TXSD on 04/13/11 Page 9 of 16
`
`David L. Burgert
`Ray T. Torgerson
`Porter & Hedges, L.L.P.
`1000 Main Street, 36th Floor
`Houston, Texas 77002
`United States of America
`
`to counsel for Plaintiff as follows:
`
`Timothy K. Gilman
`KIRKLAND & ELLIS LLP
`601 Lexington Avenue
`New York, New York 10022
`United States of America
`
`Gregg F. LoCascio, P.C.
`KIRKLAND & ELLIS LLP
`655 Fifteenth Street, N.W.
`Washington, D.C. 20005
`United States of America
`
`Lee L. Kaplan
`SMYSER KAPLAN & VESELKA, L.L.P.
`Bank of America Center
`700 Louisiana, Suite 2300
`Houston, Texas 77002
`United States of America
`
`and to counsel for the Fugro Defendants as follows:
`
`Gordon Arnold
`ARNOLD & KNOBLOCH LLP
`4900 Woodway, Suite 900
`Houston, Texas 77056
`Tel: (713) 972-1649
`Fax: (713) 972-1180
`
`John M. Elsley
`Rachel de Cordova
`ROYSTON, RAYZOR, VICKERY & WILLIAMS, LLP
`711 Louisiana, Suite 500
`Houston, Texas 77002-6418
`Tel: (713) 224-8380
`Fax: (713) 225-9945
`
`2215933vl
`
`8
`
`WESTERNGECO Exhibit 2096, pg. 21
`PGS v. WESTERNGECO
`IPR2014-01478
`
`

`
`Case 4:09-cv-01827 Document 158-3 Filed in TXSD on 04/13/11 Page 10 of 16
`
`VII. UNDERTAKING
`
`Defendant agrees and undertakes to meet, where required under Norwegian law, the costs
`
`of traveling or lost
`
`time incurred by the witness in complying with the orders issued in
`
`accordance with the requests herein.
`
`VIII. NOMINATION OF EXAMINER
`
`IT IS FURTHER REQUESTED that a barrister at law agreed upon by Defendant and
`
`Plaintiff, and if there is no agreement, such person as selected by the Royal Ministry of Justice
`
`and Police, be appointed as Examiner for the proceedings requested herein.
`
`IX.
`
`NOMINATION OF DEFENDANTS
`
`The Defendant IO