`
`EXHIBIT 1
`
`Alacritech, Ex. 2015 Page 1
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`
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`Case 2:16-cv-00693-JRG-RSP Document 71-3 Filed 10/31/16 Page 2 of 8 PageID #: 1790
`
`From: Stephens, Garland
`Sent: Friday, October 21, 2016 6:23 PM
`To: 'Claude M. Stern'
`Cc: claudestern@quinnemanuel.com; Joe Paunovich; Gil Gillam (gil@GillamSmithLaw.com); Constant, Justin
`(justin.constant@weil.com); McClellan, Doug
`Subject: RE: Alacritech v. Dell
`
`Claude, Joe‐
`
`As I said in my email yesterday, Intel is prepared to abide by the existing schedule, if Alacritech does not enlarge
`the case through counterclaims, provides Intel with immediate access to Alactritech’s infringement contentions
`relating to Intel products, and consents to Intel’s intervention. I understand from your email that Alacritech is
`refusing.
`
`Contrary to your “understanding” Intel has had no involvement in the existing orders and motions in the case. Intel
`has not been a party, and has been prevented from assessing the case because of Alacritech’s ongoing improper
`refusal to allow Intel to see the infringement contentions relating to Intel products. Any delay is due to Alacritech.
`
`Intel cannot agree to Alacritech’s conditions, and they seem calculated to delay Intel’s intervention. I urge you to
`change your mind and am available to discuss it today and Monday morning. Unless Alacritech will agree to Intel’s
`intervention without these unacceptable conditions, we will file an opposed motion.
`
`‐Garland
`
`From: Claude M. Stern [mailto:claudestern@quinnemanuel.com]
`Sent: Friday, October 21, 2016 1:31 AM
`To: Stephens, Garland
`Cc: claudestern@quinnemanuel.com; Joe Paunovich
`Subject: RE: Alacritech v. Dell
`
`Garland,
`
`Alacritech did not ask Intel to intervene in the case against Dell and Intel is not in a position to dictate
`terms for its intervention. The case was filed in late June 2016; Intel has known about it for nearly 4
`months but waited until last week to request intervention. Putting aside this unexplained delay, we have
`made a reasonable proposal for Intel’s intervention to try to limit prejudice to Alacritech. Intel’s request is
`either (a) timely because it will not change the case schedule/deadlines or require the Court and
`Alacritech to revisit and rebrief issues already before the Court or (b) untimely and will unfairly prejudice
`Alacritech.
`
`
`1
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`Alacritech, Ex. 2015 Page 2
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`
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`Case 2:16-cv-00693-JRG-RSP Document 71-3 Filed 10/31/16 Page 3 of 8 PageID #: 1791
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`We understand that Intel has been in discussions with Dell and the other defendants behind the scenes
`for some time, discussing issues that have already been decided and/or briefed to the Court, including
`among other things the Docket Control Order, Discovery Order, and the disputes regarding Alacritech’s
`designation of its infringement contentions as “Confidential” and Source Code printing under the
`Protective Order. Aside from adding Intel as a Party to the Discovery Order, if Intel wanted to weigh in on
`any of the issues that have occurred to date in the case it could have sought intervention
`earlier. Alacritech is unwilling to be side-tracked in prosecuting its case against Defendants simply
`because Intel wants to join the case.
`
`Regarding Alacritech’s Confidential Infringement Contentions against Dell, Intel is not a party to the case
`and until such time that it is Alacritech will not disclose them to Intel. As explained in the email yesterday,
`if the Court allows Intel to intervene in the Dell matter, and Intel agrees to be bound by the terms of the
`Protective Order (which agreement has no effect on Intel until such time that it is a party), we will provide
`Intel a copy of our contentions against Dell at that time and also will consider whether it is necessary and
`appropriate to provide a copy of our contentions against the CenturyLink and Wistron defendant
`groups. This will be resolved quickly if done by Unopposed Motion, but in any event, there are no
`deadlines in the case that would require Intel to have immediate access to Alacritech’s Confidential
`Infringement Contentions against Dell. Dell (and the other Defendants) is represented by competent
`counsel that is more than capable of preparing their P.R. 3-3 & 3-4 Disclosures (Invalidity Contentions)
`and complying with their respective discovery obligations without the need for special input from Intel. In
`short, Intel can wait until it is a party to the case to see our contentions against Dell.
`
` will be out of the office tomorrow, but please let Joe know if Intel is willing to proceed with our
`Unopposed Motion without re-litigating the issues raised in your email below.
`
`Regards,
`
` Claude
`
`From: Stephens, Garland [mailto:Garland.Stephens@weil.com]
`Sent: Thursday, October 20, 2016 3:14 PM
`To: Joe Paunovich <joepaunovich@quinnemanuel.com>; McClellan, Doug <Doug.McClellan@weil.com>; Constant,
`Justin <Justin.Constant@weil.com>; gil@gillamsmithlaw.com
`Cc: Claude M. Stern <claudestern@quinnemanuel.com>; jw@wsfirm.com; Claire Henry <claire@wsfirm.com>;
`Andrea Fair <andrea@wsfirm.com>
`Subject: RE: Alacritech v. Dell
`
`Joe‐
`
` I
`
`We have carefully reviewed your proposal. Unfortunately it is unworkable as proposed. However, I am
`hopeful we can quickly work out an approach that will permit Intel to intervene without further delay.
`
`If Alacritech agrees not to change the scope of the case through counterclaims against Intel, and
`immediately shares with Intel all of its infringement contentions that refer to Intel components, there is
`no reason to change the existing schedule. We can prepare an unopposed motion to intervene reciting
`Intel’s and Alacritech’s agreement on these two points immediately.
`
`We are also prepared to treat the infringement contentions as “confidential” under the protective order
`until the Court resolves the dispute on whether that designation is improper. However, Intel will not
`waive its right to inform the Court of its views on whether the designation is improper.
`
`We do not presently see any issues with the E‐Discovery order.
`
`2
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`Alacritech, Ex. 2015 Page 3
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`
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`Case 2:16-cv-00693-JRG-RSP Document 71-3 Filed 10/31/16 Page 4 of 8 PageID #: 1792
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`The discovery order looks reasonable, but needs modifications to refer to Intel as a party to the case and
`incorporate limitations for Intel comparable to those in the existing order.
`
`The protective order is missing some important protections necessary for Intel source code. We do not
`see a need to change it as far as it applies to other parties’ code. We expect we can negotiate reasonable
`Intel‐specific provisions source code once the motion to intervene is filed.
`
`None of these issues raises any substantive obstacle to Intel’s immediate intervention. We can negotiate
`the modifications needed to the discovery and protective orders promptly after filing the unopposed
`motion to intervene.
`
`Please let me know today if Alacritech will agree to this proposal, and we will provide a draft motion.
`
`‐Garland
`
`From: Joe Paunovich [mailto:joepaunovich@quinnemanuel.com]
`Sent: Wednesday, October 19, 2016 6:59 PM
`To: Stephens, Garland; McClellan, Doug; Constant, Justin; gil@gillamsmithlaw.com
`Cc: claudestern@quinnemanuel.com; jw@wsfirm.com; Claire Henry; Andrea Fair
`Subject: Alacritech v. Dell
`
`Garland,
`
`
`As discussed yesterday, we cannot agree to Intel’s disputed Motion to Intervene but will agree to the attached
`Unopposed Motion to Intervene and File a Complaint in Intervention in the lawsuit filed by Alacritech, Inc. against
`Dell, Inc., Civil Action No. 2:16‐cv‐00695‐JRG. The Complaint in Intervention that is referenced as Exhibit A in the
`Unopposed Motion is the draft you provided to us for review. Please confirm Intel’s agreement to file these
`documents as‐is and when it plans to do so. We will send you a copy of a proposed order granting the intervention
`that would accompany the Unopposed Motion.
`
`
`Regarding Intel’s request for a copy of Alacritech’s contentions, our contentions against the Defendants’ in this
`matter are designated Confidential and as such, we will not agree to disclose them to Intel until it is an actual Party
`to the consolidated action and agrees to be bound by the Protective Order. If the Court allows Intel to intervene in
`the Dell matter, and Intel agrees to be bound by the terms of the Protective Order, we will provide Intel a copy of
`our contentions against Dell at that time and also will consider whether it is necessary and appropriate to provide a
`copy of our contentions against the CenturyLink and Wistron defendant groups. We expect this will be resolved
`fairly quickly after Intel files the attached Unopposed Motion.
`
`
`Regards,
`Joe
`
`Joseph M. Paunovich | Quinn Emanuel Urquhart & Sullivan LLP | Office: +1.213.443.3257
`
`From: Stephens, Garland [mailto:Garland.Stephens@weil.com]
`Sent: Tuesday, October 18, 2016 8:49 AM
`To: Joe Paunovich <joepaunovich@quinnemanuel.com>; Claude M. Stern <claudestern@quinnemanuel.com>
`Cc: McClellan, Doug <Doug.McClellan@weil.com>; Constant, Justin <Justin.Constant@weil.com>;
`gil@gillamsmithlaw.com
`Subject: RE: Alacritech v. Dell
`
`Joe‐
`
`
`3
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`Alacritech, Ex. 2015 Page 4
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`
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`Case 2:16-cv-00693-JRG-RSP Document 71-3 Filed 10/31/16 Page 5 of 8 PageID #: 1793
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`We have already provided you with a draft motion and complaint. We now need Alacritech’s prompt decision on
`whether it will oppose. I look forward to Alacritech’s response early this afternoon.
`
`‐Garland
`
`
`
`
`
`Garland Stephens
`
`Weil, Gotshal & Manges LLP
`700 Louisiana, Suite 1700
`Houston, TX 77002-2755
`garland.stephens@weil.com
`+1 713 546 5011 Direct
`+1 713 224 9511 Fax
`
`From: Joe Paunovich [mailto:joepaunovich@quinnemanuel.com]
`Sent: Monday, October 17, 2016 9:13 PM
`To: Stephens, Garland; claudestern@quinnemanuel.com
`Cc: McClellan, Doug; Constant, Justin
`Subject: RE: Alacritech v. Dell
`
`Garland,
`
`Thank you for sending a copy of the motion and complaint. Since we did not have the benefit of this until later in
`the day, we need to discuss with our client tomorrow morning and will have a response for you hopefully by early
`afternoon. Are you able to share a draft of the unopposed motion (or stipulation) that you would propose filing if
`our client will agree?
`
`Joe
`
`Joseph M. Paunovich | Quinn Emanuel Urquhart & Sullivan LLP | Office: +1.213.443.3257
`
`From: Stephens, Garland [mailto:Garland.Stephens@weil.com]
`Sent: Monday, October 17, 2016 3:52 PM
`To: Claude M. Stern <claudestern@quinnemanuel.com>
`Cc: McClellan, Doug <Doug.McClellan@weil.com>; Joe Paunovich <joepaunovich@quinnemanuel.com>; Constant,
`Justin <Justin.Constant@weil.com>
`Subject: RE: Alacritech v. Dell
`
`Claude‐
`
`As you requested, I have attached a draft motion to intervene and complaint in intervention. We are providing this
`at your request for purposes of meeting and conferring only ‐ Intel reserves the right to make changes before filing.
`Please let me know promptly whether Alacritech opposes the motion.
`
`‐Garland
`
`
`
`
`
`Garland Stephens
`
`
`4
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`Alacritech, Ex. 2015 Page 5
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`
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`Case 2:16-cv-00693-JRG-RSP Document 71-3 Filed 10/31/16 Page 6 of 8 PageID #: 1794
`
`Weil, Gotshal & Manges LLP
`700 Louisiana, Suite 1700
`Houston, TX 77002-2755
`garland.stephens@weil.com
`+1 713 546 5011 Direct
`+1 713 224 9511 Fax
`
`From: Claude M. Stern [mailto:claudestern@quinnemanuel.com]
`Sent: Friday, October 14, 2016 9:45 PM
`To: Stephens, Garland
`Cc: claudestern@quinnemanuel.com; Joe Paunovich; McClellan, Doug; Constant, Justin
`Subject: RE: Alacritech v. Dell
`
`Garland,
`
` I
`
` I
`
` have just had a chance to review your email from after our Thursday call in detail. In addition to
`what Joe points out in his email reply, I want to be clear that one of the first things we asked you
`during our Thursday call was to provide us a copy of Intel's planned motion to intervene (and
`associated complaint in intervention) so that we could make a good faith determination whether
`there was merit to our accepting Intel’s request, but you inexplicably refused. It is difficult for us
`to evaluate your request without more than the generalities that you told us as the basis for
`intervention. You cited a case to us during the call, US Ethernet v. Acer, as support for the
`motion. We have looked at it but it appears to be distinguishable from the present case since
`Intel’s products, by themselves, were accused of infringement in that case whereas we have
`accused Defendants’ server systems which Intel does not manufacture, assemble or sell, and
`methods for using these server systems in data centers and other computing environments.
`
` again request that you provide a copy of your planned motion to intervene and complaint in
`intervention so that we can assess Intel's request. I cannot see any prejudice to your client from
`our reviewing the draft motion and complaint in intervention. If we can spare the court and the
`parties the need to address the motion formally, that would seem to be in everyone’s best
`interest.
`
`In addition, your characterization of our questions during the call is inaccurate. Because you
`refused to provide us a copy of Intel's planned motion to intervene during our call, we asked
`whether the parties could simplify the court's motion docket in connection with Intel's request to
`intervene by agreeing that the defendants would withdraw their pending motion to transfer. We
`were wondering whether Intel’s intention was to intervene in the case and forego any subsequent
`effort to transfer the case. Of course, we were forced to guess at your client’s intentions since,
`again, we were being told we could not see the draft motion (and associated complaint in
`intervention draft). Initially you said you did not know the answer to this question and then near
`the end of our call you changed course and said your client would decline to consider this
`option.
`
`You also initially asked during the call if we would disclose to Intel our confidential contentions
`against only Dell if Intel intervened, but then you later in the call changed that request and asked
`for all of our confidential contentions even though Intel is not seeking to intervene, and indeed
`admitted that Intel has no plan to intervene, in the CenturyLink and Wistron actions since it is not
`indemnifying those defendants. As Joe stated in his email, you are also incorrectly state our
`position on the confidentiality of our contentions; our position is set forth in the protective order
`briefing to the Court.
`
`
`5
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`Alacritech, Ex. 2015 Page 6
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`
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`Case 2:16-cv-00693-JRG-RSP Document 71-3 Filed 10/31/16 Page 7 of 8 PageID #: 1795
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`We look forward to your response to our requests and will get back with you on your requests
`shortly. I suggest again that all parties would be best served if we could review Intel’s draft
`motion and complaint in intervention, so that we can more thoroughly assess Intel’s position and
`arguments, and potentially avoid needless motion practice.
`
`Regards,
`Claude
`
`
`From: Joe Paunovich
`Sent: Thursday, October 13, 2016 6:26 PM
`To: Stephens, Garland <Garland.Stephens@weil.com>
`Cc: Claude M. Stern <claudestern@quinnemanuel.com>; McClellan, Doug <Doug.McClellan@weil.com>; Constant,
`Justin <Justin.Constant@weil.com>
`Subject: Re: Alacritech v. Dell
`
`Garland,
`
`You are misstating our conversation, we did not and have never said we marked our contentions AEO to avoid a
`claim that they give rise to declaratory judgment jurisdiction for nonparties whose products are identified in the
`contentions. You are welcome to read the pending motion on the docket which accurately states our position on
`the confidentiality of our contentions. Nevertheless we understand you are asking now if we will disclose our
`contentions to Intel since it plans to intervene in the Dell action. As stated, we are considering the request and will
`get back with you shortly.
`
`
`In addition, we asked on the call for Intel to provide us its intended motion to intervene so that we could assess its
`position. We understand Intel refuses to provide us with a copy of the motion. In the same vein, we did not ask
`during the call but request that Intel provide us a copy of its intended complaint in intervention for the same
`reasons. Please let us know if Intel will agree.
`
`Regards,
`Joe
`
`On Oct 13, 2016, at 5:11 PM, Stephens, Garland <Garland.Stephens@weil.com> wrote:
`
`Claude, Joe‐
`
`
`Thank you for speaking with us today. As we discussed, Intel asks 1) whether Alacritech will oppose Intel’s motion
`to intervene in the Dell case, and 2) whether Alacritech will provide its infringement contentions for all three
`defendants to Intel on a confidential basis. You agreed to respond to both requests by Monday, October 17.
`
`
`You also inquired whether Intel and the Defendants would agree not to seek transfer if Alacritech agreed not to
`oppose intervention (assuming you determined that Alacritech had a good faith basis to oppose). As I said on the
`call, Intel cannot speak for the defendants, and in any event Intel will not agree to the proposal.
`
`
`Regarding Alacritech’s infringement contentions, you said that Alacritech marked them Attorneys’ Eyes Only to
`avoid a claim that they give rise to declaratory judgment jurisdiction for nonparties whose products are identified
`in the contentions. You asked if Intel would agree not to file a declaratory judgment action based on the
`contentions. As I said on the call, Intel will not agree to that condition.
`
`
`6
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`Alacritech, Ex. 2015 Page 7
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`
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`Case 2:16-cv-00693-JRG-RSP Document 71-3 Filed 10/31/16 Page 8 of 8 PageID #: 1796
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`Sincerely,
`Garland
`
`
`
`
`
`
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`7
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`Alacritech, Ex. 2015 Page 8
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`