Case 2:16-cv-00693-JRG-RSP Document 116 Filed 01/30/17 Page 1 of 8 PageID #: 3289
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`2:16-cv-00693-JRG (LEAD CASE)
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`2:16-cv-00692-JRG
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`2:16-cv-00695-RWS
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`JURY TRIAL DEMANDED
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`CAVIUM, INC.’S REPLY IN SUPPORT OF MOTION TO INTERVENE
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`ALACRITECH, INC., A California corporation,
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`Plaintiff,
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`TIER 3, ET AL., WISTRON CORPORATION ET
`AL., DELL INC., A Delaware corporation,
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`v.
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`Defendants
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`Alacritech, Ex. 2016 Page 1
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`Case 2:16-cv-00693-JRG-RSP Document 116 Filed 01/30/17 Page 2 of 8 PageID #: 3290
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`I.
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`INTRODUCTION
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`Proposed Intervenor Cavium, Inc. (“Cavium”) respectfully submits this Reply in support
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`of its Motion to Intervene [Dkt. 109]. Alacritech, Inc.’s (“Alacritech”) Response admits that
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`Cavium should be permitted to intervene. [Dkt. 113] Faced with the same facts that formed the
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`basis for Intel’s successful motion to intervene (as Cavium had advised), Alacritech’s initial
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`reluctance to consent to the motion is difficult to explain. [Dkt. 71, 84] Alacritech now
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`improperly asks the Court to issue an order preventing Cavium from seeking future relief that
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`would disturb any prior order and compelling production of discovery -- without ever bringing a
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`motion. [Dkt. 113-8] Alacritech attempted a similar tactic in its response to Intel’s motion to
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`intervene [Dkt. 82] and the Court declined to impose any conditions upon Intel’s intervention.
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`[Dkt. 84] Cavium, like Intel, is entitled to intervene in the action without conditions.
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`II.
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`ARGUMENT
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`Alacritech’s attempt to impose conditions on Cavium’s intervention is improper for
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`multiple reasons. First, Alacritech’s requested relief asks the Court to ignore Due Process, the
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`Federal Rules of Civil Procedure, the Civil Local Rules and the Court’s own orders concerning
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`motion practice, case management and discovery. Moreover, the conditions requested are not
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`supported by Federal Rule of Civil Procedure 24 and the case law interpreting Rule 24. Finally,
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`even if Alacritech’s requested conditions were authorized by law, the facts of this case simply do
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`not warrant imposition of such conditions.
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`A.
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`Alacritech’s Requested Order Is Improper
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`Cavium is entitled as of right to participate as an intervening party in this action pursuant
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`to Rule 24(a). Alacritech cites to a treatise discussing the propriety of granting Rule 24(b)
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`permissive intervention subject to certain conditions or limitations. [Dkt. 113, pp. 3-4]
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`Alacritech, Ex. 2016 Page 2
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`However, Alacritech can cite to no case authorizing the conditions it seeks to impose on Cavium
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`in the circumstances of this action, regardless of whether intervention is granted pursuant to Rule
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`24(a) or (b). Cavium should have the same rights as any other party to seek relief for good cause
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`from any prior order of the Court. Alacritech’s attempt to prevent a future request for
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`modification is particularly troubling in light of Alacritech’s own recent expansion of the scope
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`of accused products and failure to provide meaningful infringement contentions as to many
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`products identified in the Complaint.
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`Alacritech’s attempt to obtain an order compelling discovery – without ever having filed
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`a motion and without having met and conferred, is unprecedented in any context. Putting aside
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`that the non-party subpoena issued to Cavium in the Northern District of California now is moot,
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`for any discovery dispute Alacritech must follow the Court’s procedures to meet and confer to
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`attempt to narrow the issues and file a properly-noticed motion to compel addressing Cavium’s
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`objections to the discovery requests at issue. See, e.g., Dkt. 45-1 at 9(c) and Local Rule CV-7.
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`Alacritech asks the Court, by its response and proposed order, to effectively grant a motion to
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`compel discovery that Alacritech has yet to bring, on discovery that is not before the Court.
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`B.
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`Cavium Is Entitled To Intervene As Of Right And Without Conditions
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`Alacritech concedes that Cavium should join this action at least as a permissive
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`intervenor, and fails to refute that Cavium is entitled to intervene as of right under Rule 24(a), as
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`set forth in Cavium’s Motion. [Dkt. 109] Four factors must be considered to determine the right
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`to intervene pursuant to Rule 24(a): the timeliness of the request; the potential intervenor’s
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`interest relating to the property or transaction that is the subject of the action1; the possibility of
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`1 Cavium’s interest as a supplier to a defendant should be afforded greater weight. See, e.g.,
`Honeywell Int’l, Inc. v. Audiovox Commc’ns Corp., No. Civ. A. 04-1337-KAJ et al., 2005
`U.S. Dist. LEXIS 22933, at *9-10 (D. Del. May 18, 2005).
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`Alacritech, Ex. 2016 Page 3
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`impairment to the potential intervenor’s ability to protect its interest absent intervention; and the
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`adequacy of the representation of the potential intervenor’s interest by existing parties. See
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`Texas v. United States, 805 F.3d 653, 657 (5th Cir. 2015). Alacritech addresses only one of
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`these factors, timeliness, which it erroneously evaluates in isolation from the other factors and
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`the factual context of this action.
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`1.
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`Cavium’s Motion Is Timely Under The Circumstances Of The Action
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`Cavium’s motion to intervene is timely. No substantive proceedings have yet been
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`conducted in this action. Whether the case schedule should be adjusted in this action is
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`dependent on many factors that are not driven by Cavium. For example, Alacritech’s recent
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`expansion of the scope of the action with respect to the accused products of other parties;
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`Alacritech’s failure thus far to provide meaningful infringement contentions as to the accused
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`QLogic products; and whether Alacritech will further expand the products accused in the action.
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`In addition to the fact that the action still is in an early stage, the timing of Cavium’s
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`intervention is entirely reasonable under the circumstances. About a month after the lawsuit was
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`filed, Dell sought indemnification from QLogic Corporation (“QLogic”) based on Alacritech’s
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`identification of QLogic products in the complaint. Several weeks later, on August 16, QLogic
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`was acquired by Cavium. In the midst of an acquisition, the Dell letter was one of many tasks on
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`the plates of the QLogic and Cavium legal teams. The decision to become a party to a patent
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`lawsuit is not made lightly by any organization, and becomes even more complex for the
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`decision-makers of a newly-combined corporation.
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`Intel’s intervention in this action was not completed until November, and Alacritech’s
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`infringement contentions also did not become accessible to non-parties until November. In
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`addition, Alacritech denied Cavium’s counsel access for months to a license agreement that may
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`Alacritech, Ex. 2016 Page 4
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`provide a complete defense as to QLogic products, on the basis that Cavium is not a party and
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`the license is marked “Highly Confidential” under the Protective Order. In December,
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`Alacritech sent Cavium a broad subpoena, further increasing Cavium’s involvement in the
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`action. As explained in Cavium’s motion, the relevant Cavium decision-makers were largely
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`unavailable during the holidays, and promptly after the holidays Cavium moved to intervene.
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`2.
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`Cavium’s Motion Is Timely According To Applicable Law
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`As explained in Cavium’s Motion, “to take any prejudice that the existing parties may
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`incur if intervention is allowed into account under the rubric of timeliness would be to rewrite
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`Rule 24 by creating an additional prerequisite to intervention as of right.” Stallworth v.
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`Monsanto Co., 558 F.2d 257, 265 (5th Cir. 1977). Courts have found intervention timely in a
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`wide range of circumstances, absent some specific “but for” prejudicial result to the existing
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`parties due to later, rather than earlier, intervention. See Ross v. Marshall, 426 F.3d 745, 756
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`(5th Cir. 2005). Here, Alacritech has not articulated (and cannot articulate) any prejudice it will
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`suffer by virtue of Cavium intervening in January as opposed to a few months earlier.
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`Alacritech’s Response cites two decisions denying post-judgment intervention for the
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`proposition that Cavium’s motion is untimely. Neither case is applicable here. In Corley v.
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`Jackson Police Department, a group of police officers sought to intervene in a discrimination
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`action after a consent decree was entered. Corley, 755 F.2d 1207, 1208 (1985). Intervention
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`was denied based on both unreasonable delay and prejudice to existing parties where the
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`movants should have known of the suit by 1973, a consent decree was entered in 1974, and the
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`movants sought to intervene in 1978. Id. at 1210. In Staley v. Harris County, the Southern
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`District of Texas denied a motion to intervene based on three of the four factors to be considered,
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`finding the motion untimely, that the movant’s substantive rights were not adversely affected by
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`Alacritech, Ex. 2016 Page 5
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`judgment, and that the existing parties adequately represented the movant’s argument. 223
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`F.R.D. 458, 464 (S.D. Tex. 2004). The movant’s members case had participated in the trial, and
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`its First Amendment arguments were made by the County during the year-long litigation. Id. at
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`462-64. Neither of the foregoing post-judgment attempts to intervene is applicable here.
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`The scope of the instant case still is in flux some six months after it was filed. Whether
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`Alacritech will expand the scope of the case further as to QLogic accused products (or those of
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`other parties) is known only to Alacritech. No claim construction proceedings have been held
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`and no dispositive motions have been filed. Alacritech cannot articulate any prejudice it will
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`suffer by Cavium’s intervention now that it would not suffer if Cavium had intervened a few
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`months earlier. Accordingly, Cavium’s intervention is timely.
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`C.
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`Conditions Are Not Warranted In The Context Of This Action
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`As Cavium stated in correspondence to Alacritech, while the scope of the case has yet to
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`be determined (and is largely in the hands of Alacritech), Cavium will work cooperatively with
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`all existing parties to find reasonable ways to integrate Cavium without undue delay. [Dkt. 113,
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`Ex. G] Since its intervention in late November, Intel has been integrated into the action in an
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`orderly manner. Cavium is diligently preparing to participate in this action and will meet all of
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`its obligations and ensure efficient conduct of the proceedings. If an issue arises as to discovery
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`or case management, Cavium anticipates following the Court’s orders and Local Rules in order
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`to minimize motion practice. Alacritech, on the other hand, delayed Cavium’s intervention and
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`increased motion practice by refusing to simply consent to Cavium’s motion without conditions.
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`III. CONCLUSION
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`For the reasons set forth above and in Cavium’s Motion to Intervene [Dkt. 109], Cavium
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`respectfully requests that the Court unconditionally grant its motion to intervene in this action.
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`Alacritech, Ex. 2016 Page 6
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`Case 2:16-cv-00693-JRG-RSP Document 116 Filed 01/30/17 Page 7 of 8 PageID #: 3295
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`Dated: January 30, 2017
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`Respectfully submitted,
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`/s/ Karineh Khachatourian
`Karineh Khachatourian (CA Bar No. 202634)
`Duane Morris LLP
`2475 Hanover Street
`Palo Alto, CA 94304-1194
`Telephone: (650) 847-4150/Fax: (650) 847-4151
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`Melissa Richards Smith
`TX State Bar No. 24001351
`GILLAM & SMITH, LLP
`303 South Washington Avenue
`Marshall, Texas 75670
`Telephone: (903) 934-8450/Fax: (903) 934-9257
`melissa@gillamsmithlaw.com
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`Attorneys for Cavium, Inc.
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`Alacritech, Ex. 2016 Page 7
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a true and correct copy of the above and foregoing
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`document has been served on January 30, 2017 to all counsel of record who are deemed to have
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`consented to electronic service via the Court’s CM/ECF system per Local Rule CV-5(a)(3).
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`/s/ Melissa R. Smith
`Melissa R. Smith
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`Alacritech, Ex. 2016 Page 8
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