Case 4:18-cv-06185-HSG Document 46 Filed 03/12/19 Page 1 of 4
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`Sarah G. Hartman (Cal. Bar No. 281751)
`shartman@brownrudnick.com
`Peter Lambrianakos (pro hac vice)
`plambrianakos@brownrudnick.com
`Vincent J. Rubino, III (pro hac vice)
`vrubino@brownrudnick.com
`Brown Rudnick LLP
`7 Times Square
`New York, NY 10036
`Telephone:
`(212) 209-4800
`Facsimile:
`(212) 209-4801
`
`Arjun Sivakumar (Cal. Bar No. 297787)
`asivakumar@brownrudnick.com
`Brown Rudnick LLP
`2211 Michelson Drive, Seventh Floor
`Irvine, California 92612
`Telephone: (949) 752-7100
`Facsimile: (949) 252-1514
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`Attorneys for Defendant
`AGIS SOFTWARE DEVELOPMENT LLC
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`OAKLAND DIVISION
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` Case No. 18-cv-06185-HSG
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`DEFENDANT’S RESPONSE PURSUANT TO
`THE COURT’S MARCH 12, 2019 ORDER
`(DKT. 45)
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`Trial Date: None set
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`Plaintiff,
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`ZTE (USA) INC.,
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`v.
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`AGIS SOFTWARE DEVELOPMENT LLC, et
`al.
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`Defendants.
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`DEFENDANT’S RESPONSE PURSUANT TO THE COURT’S ORDER (DKT. 45), CASE NO. 18-cv-06185-HSG
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`Case 4:18-cv-06185-HSG Document 46 Filed 03/12/19 Page 2 of 4
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`Pursuant to the Court’s March 12, 2019 Order (Dkt. 45), Defendant AGIS Software
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`Development LLC (“AGIS Software”) submits the following response to Plaintiff ZTE (USA), Inc.'s
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`(“ZTE”) Administrative Motion to Remove Filed Documents (Dkt. 44), filed March 11, 2019.
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`On March 5, 2019, ZTE filed its Response to Defendant's Motion to Dismiss the Second
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`Amended Complaint (the “Response”) (Dkt. 43), the Declaration of Bradford C. Schulz (the
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`“Declaration”) (Dkt. 43-1), and accompanying exhibits (Dkts. 43-2-43-35).1 Promptly upon receipt,
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`AGIS Software notified ZTE that the use and filing of Exhibits 3-6, 8, 10, 14 and 34, and all
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`information contained therein, which were designated ”RESTRICTED-ATTORNEYS EYES
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`ONLY” pursuant to the Protective Order in AGIS Software Development, LLC v. ZTE Corp., et al.,
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`Case No. 2:17-cv-00517 (E.D. Tex.) (Consolidated Case), violated the terms of that Order. See AGIS
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`Software Development, LLC v. Huawei Device USA Inc., et al, Case No. 2:17-cv-00513 (Lead Case),
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`Dkt. 119 (“Protective Order”); see also Declaration of Sarah G. Hartman (“Hartman Decl.”) Ex. A.
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`AGIS Software requested that ZTE immediately withdraw the designated Exhibits, as well as other
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`documents referencing any and all designated information (including any and all portions of
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`documents referencing and/or relying on designated information). Id. Although ZTE noted
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`disagreement over the interpretation of the Protective Order, it nonetheless agreed to withdraw the
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`designated Exhibits and their “associated non-sealed documents.” Id. ZTE presented AGIS Software
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`with a proposed Joint Stipulation (“Stipulation”) that requested the withdrawal of the designated
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`Exhibits and the un-redacted versions of the Response and Declaration, but not the publicly-filed
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`versions of the Response and Declaration. Ex. A.
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`AGIS Software explained to ZTE that the publicly-filed versions of the Response and
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`Declaration still violate the Protective Order because they improperly include un-redacted and/or
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`partially redacted sentences that cite to one or more of the designated Exhibits; un-redacted citations
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`to the designated Exhibits; un-redacted statements that rely on information contained in one or more
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`of the improper exhibits; and redactions that suggest the existence of designated material that is
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`1 In connection with its Response, ZTE filed an Administrative Motion to File Under Seal un-
`redacted versions of the Response, the Declaration and Exhibits 3, 4, 5, 6, 8, 10, 14, and 34, under
`seal. Dkts. 42; 42-1—42-14. The filing of these documents under seal does not cure ZTE’s violation
`of the Protective Order.
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`Case 4:18-cv-06185-HSG Document 46 Filed 03/12/19 Page 3 of 4
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`prohibited from being used in any way. Id.
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`The Protective Order clearly provides that designated documents and information, including
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`Exhibits 3-6, 8, 10, 14 and 34 and the information contained therein, “shall be used by the Parties
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`only in the litigation of this Action and shall not be used for any other purpose.” Protective Order ¶
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`13 (emph. added). Thus, ZTE cannot legitimate dispute that its use and reliance on the publicly-filed
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`versions of the Response and Declaration, which still reference and/or rely, implicitly and explicitly,
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`on designated material, violates the Protective Order. Moreover, the mere fact that the redactions are
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`visible, as well as the citations to designated Exhibits, creates an improper inference as to the
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`existence of designated material that, pursuant to the terms of the Protective Order, may not to be
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`used for any purpose other than in connection with the Texas Action. ZTE should not be permitted
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`to engage in such a flagrant violation of the Protective Order and misuse of designated information
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`(even if redacted) to intimate to the Court that there is additional evidence available to support
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`ZTE’s baseless claim for personal jurisdiction over AGIS Software. No such information exists, and
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`ZTE’s conduct constitutes a continued violation of the Protective Order.
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`Accordingly, because ZTE’s proposed joint Stipulation was inadequate to rectify ZTE’s
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`violations of the Protective Order, AGIS Software could not agree to it. Hartman Decl. Ex. A.
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`Instead, AGIS Software requested that ZTE file a Corrected Response to its Motion to Dismiss that
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`excluded any and all reference to any of the designated Exhibits and/or any information contained
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`therein, without the use of redactions. ZTE refused, and filed the Administrative Motion (Dkt. 44).
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`Nonetheless, AGIS Software agrees and stipulates to the withdrawal of the material listed in
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`ZTE’s Motion (Exhibits 3-6, 8, 10, 14, and 34 and the un-redacted versions of the Response and
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`Declaration, Dkts. 42-4, 42-6, 42-7, 42-8, 42-9, 42-10, 42-11, 42-12, 42-13, & 42-14). However, to
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`fully rectify ZTE’s violations of the Protective Order, AGIS Software further requests that ZTE be
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`Ordered to file a Corrected Response to Defendant’s Motion to Dismiss that excludes any and all
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`reference to any of the designated Exhibits and/or any information contained therein, without the use
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`of redactions, and which provides that the Corrected Response be treated as if it was the only
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`response for purposes of calculating the deadline for AGIS Software’s reply, pursuant to L.R. 7-3(c).
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`Case 4:18-cv-06185-HSG Document 46 Filed 03/12/19 Page 4 of 4
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`Date: March 12, 2019
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` Respectfully submitted,
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`By:
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`/s/ Peter Lambrianakos
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`Peter Lambrianakos
`NY Bar No. 2894392
`Email: plambrianakos@brownrudnick.com
`Vincent J. Rubino, III
`NY Bar No. 4557435
`Email: vrubino@brownrudnick.com
`Sarah G. Hartman
`CA Bar No. 281751
`Email: shartman@brownrudnick.com
`BROWN RUDNICK LLP
`7 Times Square
`New York, NY 10036
`Telephone: 212-209-4800
`Facsimile: 212-209-4801
`
`Arjun Sivakumar
`CA Bar No. 297787
`BROWN RUDNICK LLP
`2211 Michelson Drive, Seventh Floor
`Irvine, CA 92612
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`Attorneys for Defendant
`AGIS Software Development LLC
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