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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`CYWEE GROUP LTD.,
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`CASE NO. 2:17-cv-00140-RWS-RSP
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`v.
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`Plaintiff,
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`SAMSUNG ELECTRONICS CO., LTD. AND
`SAMSUNG ELECTRONICS AMERICA, INC.
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`Defendants.
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`JURY TRIAL DEMANDED
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`FILED UNDER SEAL
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`PLAINTIFF’S MOTION FOR LEAVE TO SUPPLEMENT INFRINGEMENT
`CONTENTIONS AND EXPERT REPORTS
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`Samsung’s1 gamesmanship on disclosing the code used in its accused smartphone
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`devices continues. Plaintiff CyWee Group Ltd. (“CyWee”) requests leave to supplement its
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`infringement contentions and expert reports to address facts that were disclosed, for the first
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`time, in Samsung’s rebuttal expert report.
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`As the Court is well aware, CyWee was forced to go to extraordinary lengths to obtain
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`third-party discovery from Qualcomm regarding how its sensor fusion algorithm is implemented
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`in certain of Samsung’s accused products.2 After being met with resistance from Samsung and
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`Qualcomm at every step, CyWee finally obtained the deposition of Qualcomm’s representative,
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`and it promptly thereafter supplemented its infringement contentions and expert report. Now,
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`Samsung is attempting to ambush CyWee with a rebuttal expert report that relies upon
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`previously undisclosed information adduced during a private interview of the same Qualcomm
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`1 “Samsung” refers collectively to Defendants Samsung Electronics Co., Ltd. and Samsung
`Electronics America, Inc.
`2 See Dkt. 176.
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`PLAINTIFF’S MOTION FOR LEAVE TO SUPPLEMENT INFRINGEMENT
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`witness that CyWee previously deposed. Samsung’s counsel attended the deposition and,
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`although it had the opportunity to do so, did not ask the witness any questions.3
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`The relief requested in this motion is simple—CyWee seeks leave to supplement its
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`expert report and infringement contentions to address the narrow set of facts that Samsung and
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`Qualcomm unfairly and intentionally concealed, and then conspired together to reveal in a last-
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`minute attempt to derail CyWee’s infringement allegations as to half of the Accused Products.
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`CyWee requests that it be given seven days to do so.4
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`I.
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`BACKGROUND
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`A.
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`CyWee’s Third-Party Discovery to Qualcomm
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`Samsung is one of Qualcomm’s most important customers, and
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`. In fact, Samsung’s relationship with
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`Qualcomm is so significant that they are parties to a joint defense agreement that covers this
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`lawsuit.5 There can be no doubt that Samsung has enjoyed access, the right to possess, and the
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`3 Declaration of Ari Rafilson (“Rafilson Decl.”) ¶ 2.
`4 CyWee offered to supplement its report and infringement contentions within one week
`(excluding holidays) of Samsung’s agreement that it may do so. See Rafilson Decl. Ex. 1. That
`offer stands, regardless of Samsung’s opposition to this motion, and should therefore mitigate
`any contention by Samsung that it will not have the supplements prior to taking the deposition of
`CyWee’s expert.
`5 Although Samsung has disclosed that it is a party to a joint defense agreement with Qualcomm,
`it has never produced that agreement or described what, if any, indemnity or cooperation
`provisions are contained in that agreement that might apply to this lawsuit or compel
`Qualcomm’s cooperation in discovery. See Dkt. 176 at Declaration of Ari Rafilson (“Rafilson
`Prior Decl.”)
` Despite their close
`relationship, Samsung originally represented to CyWee that it had no ability to gain Qualcomm’s
`cooperation in discovery. See, e.g., Id. at Rafilson Prior Decl. Ex. 4 (May 17, 2018 email from E.
`Brann) (“Samsung did not (and does not) have relevant source code developed by third parties in
`its possession custody or control . . .”). But obviously, as discussed herein, Samsung is more than
`able to secure Qualcomm’s cooperation when it stands to gain something from it.
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`ability to produce under the terms of the Protective Order, any information in the possession of
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`Qualcomm related to the code in the Samsung Accused Products.
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`Despite their close joint defense and customer contractual relationships, Samsung and
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`Qualcomm have worked together to thwart CyWee’s attempts to gain a meaningful
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`understanding of how (and to what extent) Qualcomm’s code operates to infringe a number of
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`the Accused Products. The Court is already familiar with the details of CyWee’s difficulties in
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`obtaining discovery regarding devices that run on Qualcomm’s algorithm, and the Court has
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`already decided many of those facts in CyWee’s favor.6 But because this latest dispute cannot be
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`properly framed without reference to the parties’ earlier dispute regarding Qualcormn, a brief
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`recap follows:
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`0 During discovery, despite CyWee’s contention that Samsung had a superior right
`to demand production of the Qualcomm code used in Samsung’s products,
`Samsung forced CyWee to seek that information through third—party discovery7;
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`0 After CyWee served a subpoena on Qualcomm for production of its source code,
`both Qualcomm and Samsung objected to the subpoena, which the Court found
`“impeded CyWee’s discovery effort”;
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`0 After extended negotiations (including entry of a su
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`andiiualcomm’svettini ofCiWee’s exierts“b
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`lemental
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`rotective order
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`0 Although CyWee attempted to work informally with Qualconnn to gain an
`understanding of the code, Qualcomm became “[un]willing to volunteer any more
`information about the source code”“’;
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`6 See Dkt. 250, Memorandum Opinion and Order; Dkt. 176, Plaintiff’s Motion for Leave to
`Supplement Expert Reports to Include Third-Party Discovery (filed lmder seal).
`7 Dkt. 250 at 8-9.
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`8Id. at ll, 13.
`9 Id. at 11.
`1° Id. Obviously, as discussed herein, Qualconnn has been more than willing to work informally
`with Samsung, to CyWee’s detriment. This should put to rest any questions about Samsrmg’s
`sincerity when it contended during discovery that it could not efficiently facilitate production of
`Qualcomm’s source code without the need for months of third-party discovery.
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`• When Qualcomm made clear that it would not cooperate voluntarily (even as it
`was a party to a joint defense agreement with Samsung), CyWee immediately
`served Qualcomm with a deposition subpoena, and after further extended
`negotiations and delays on Qualcomm’s part, the deposition was scheduled for
`October 2, 201811;
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`• Foreseeing that it would need to supplement its expert reports following the
`Qualcomm deposition, CyWee promptly filed its Motion for Leave to Supplement
`Expert Reports to Include Third-Party Discovery (Dkt. 176); and
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`• The Court granted CyWee’s motion on October 24, 2018 and issued its
`Memorandum Opinion and Order (Dkt. 250) on November 7, 2018, finding
`“nothing to fault in CyWee’s conduct with regard to the Qualcomm discovery.”
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`On October 2, 2018, CyWee took the deposition of Qualcomm’s representative, Kaushik
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`Sridharan Lnu.12 During the deposition,
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`.13 Based upon that
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`testimony, CyWee’s expert prepared a report and charts illustrating infringement by the Accused
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`Products, and further provided an exhibit showing how the
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`During the deposition,
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`11 Id. at 11.
`12 Rafilson Decl. ¶ 2.
`13 Id.
`14 Id. at ¶ 3.
`15 Id. at ¶ 2.
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`16
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` Evidence regarding
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`is critical to CyWee’s claims for infringement of the ’978 patent by Samsung
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`devices running Qualcomm’s code.18
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`.21 Counsel for Samsung attended Mr. Lnu’s deposition, but did not ask a single
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`question.22 Counsel did not need to ask any questions because they had access to the witness
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`through the joint defense agreement.
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`CyWee’s Supplemental Expert Report and Infringement Contentions
`B.
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`16 Id.
`17 Id.
`18 Qualcomm’s testimony regarding the code at issue is relevant to show that Samsung’s Accused
`Products practice a single limitation of claim 10 of the ’978 patent: “obtaining one or more
`resultant deviation including a plurality of deviation angles using a plurality of measured
`magnetisms Mx, My, Mz and a plurality of predicted magnetism Mx′, My′ and Mz′ for the
`second signal set.” None of the issues presented herein impact CyWee’s theories of infringement
`of the ’438 patent, which does not require the use of a magnetometer.
`19 Rafilson Decl. ¶ 2.
`20 Id.
`21 Id.
`22 Id.
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`Promptly following Mr. Lnu’s deposition, and pursuant to the Court’s order granting
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`CyWee leave to amend its expert reports to incorporate information obtained from Qualconnn,
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`CyWee served the supplemental expert report of Dr. Rick Brown on October 22, 2018.23 Dr.
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`Brown’s supplemental report demonstrates how Samsung’s devices running—
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`suit.24 In his supplemental report,—
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`—I I
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`—-2“ Thu-ii Dr- Brown’s opinions in this
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`regard are based upon the code produced by Qualcomm, as well as Mr. Lnu’s rmcorr‘ected
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`testimony about how that code operates.
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`C.
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`Samsung and Qualcomm Collude Against CyWee after the Deposition
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`On December 3, 2018, Samsung served the rebuttal report of its expert, Dr. Ray
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`Mercer. 27 In his report, Dr. Mercer stated the following:
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`23 Id. at 1[ 3. CyWee also served its supplemental infringement contentions charting Qualcomm’s
`code in the Accused Products at issue on October 25, 2018.
`2“ Id.
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`25 Id.
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`2“ Id.
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`27 Id. at 11 4.
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`r ‘
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`—In other words
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`”30 Accordingly, it is apparent that Samsung airanged for its
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`expert to conduct an off-the-record interview with Qualcomm’s witness nearly two months after
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`that witness was deposed, and now Sam31mg has ambushed CyWee with an expert repon that is
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`based upon a radical amendment of the Qualcomm witness’s sworn testimony, supported by not
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`a single document and based entirely on uncorroborated hearsay to which CyWee never enjoyed
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`access.
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`On December 12, 2018, counsel for CyWee wrote a letter to Sam51mg’s counsel stating
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`that CyWee intended to move for leave to supplement its infringement contentions and Dr.
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`Brown’s report to address the evidence adduced during Dr. Mercer’s interview with Mr. Lnu and
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`.31 In response, Samsmig not only refused to agree to this minor
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`requested relief. but it also: (1) blamed CyWee for failing to determine through third-party
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`2* Id. (emphasis added).
`29 Id.
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`3° Id. (emphasis added).
`31Id. at Ex. 1.
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`discovery that
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`, even though Samsung apparently enjoyed full
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`and unfettered access to Qualcomm’s information all along; (2) chided CyWee by contending
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`that the facts Mr. Lnu failed to disclose in his deposition actually revealed non-infringement
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`(which is incorrect); and (3) demanded that CyWee withdraw its claims of infringement with
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`respect to any Accused Products impacted by the revelations from Samsung’s private
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`uncorroborated hearsay interview with Mr. Lnu (even though Samsung has never supplemented
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`its responses to interrogatories seeking any information that it may rely on to support claims of
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`non-infringement).32 Accordingly, CyWee has no choice but to file another opposed motion on
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`what should be a minor and non-controversial issue, but which has instead devolved into further
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`gamesmanship on Samsung’s part. CyWee seeks leave to supplement its infringement
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`contentions and report not to change Dr. Brown’s original opinions based on the actual
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`Qualcomm code produced and the sworn uncorrected testimony of Qualcomm’s corporate
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`representative, but to add an opinion in the alternative that even if the unsworn, hearsay,
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`uncorroborated statements attributed to Mr. Lnu are accurate, the Accused Products containing
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`compiled code still infringe.33
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`II.
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`ARGUMENT AND AUTHORITIES
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`In its Memorandum Opinion on CyWee’s prior motion for leave, the Court addressed the
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`following non-exclusive factors to consider in determining whether CyWee should be allowed to
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`supplement its expert reports and amend its infringement contentions: (1) the length of the delay
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`and its potential impact on the judicial proceedings; (2) the reason for the delay, including
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`whether it was within the reasonable control of the movant; (3) whether the offending party was
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`32 Id. at Ex. 2; See also Dkt. 176 at Rafilson Decl. Ex. 2 (Responses to Interrogatory Nos. 4, 5).
`33 Rafilson Decl. ¶ 4.
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`diligent in seeking an extension of time, or in supplementing discovery, after an alleged need to
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`disclose the new matter became apparent; (4) the importance of the particular matter, and if vital
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`to the case, whether a lesser sanction would adequately address the other factors to be considered
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`and also deter future violations of the court’s scheduling orders, local rules, and the federal rules
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`of procedure; and (5) the danger of unfair prejudice to the non-movant.34
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`As the Court held with respect to CyWee’s prior motion, “the facts relating to Qualcomm
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`do not suggest a lack of diligence on CyWee’s part,” and “there is nothing to fault in CyWee’s
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`conduct with regard to the Qualcomm discovery.”35 Each of the foregoing factors weigh heavily
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`in favor of reaching the same conclusions with respect to this motion:
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`The Length of Delay: Any delay caused by CyWee’s minor supplementation of Dr.
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`Brown’s report36 and amendment of CyWee’s infringement contentions (to add alternative
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`opinions based upon Mr. Lnu’s uncorroborated statements) will be inconsequential. CyWee
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`seeks this relief based upon information that Samsung’s expert has already received and
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`addressed in his report, and which was not disclosed to CyWee until Samsung served its rebuttal
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`report. CyWee only requests that it be granted leave to serve its supplements within seven days,
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`and even though Samsung has opposed this relief, CyWee offers to serve the supplements on
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`Samsung within seven days (excluding holidays) of any request by Samsung that it do so.
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`CyWee has proposed a date for Dr. Brown’s deposition, but Samsung has not yet accepted that
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`34 Dkt. 250 at 3 (citations omitted).
`35 Id. at 12.
`36 CyWee anticipates that the supplements to Dr. Brown’s report and its infringement contentions
`will merely show how Qualcomm’s code infringes the ’978 patent
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`. This will require modification of only two of the 25 exhibits to Dr.
`Brown’s report. See Rafilson Decl. at ¶ 4.
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`date. In any event, Dr. Brown will be prepared to address any issues covered by the
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`supplementation during his deposition.
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`The Reason for the Delay: As was the case with CyWee’s prior motion for leave, the
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`difficulty in obtaining information from Qualcomm is “a fact that cannot be laid at CyWee’s
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`doorstep.”37 Here, however, the circumstances are far more troubling than those that gave rise to
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`the prior motion.
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`. Rather, Mr. Lnu waited until nearly two months after the deposition to have a private
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`discussion with Samsung’s expert, in which he allegedly revealed that
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`. CyWee could not have anticipated this development, nor could it have foreseen that
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`Samsung would attempt to use it to unfairly ambush CyWee at the last minute.
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`CyWee’s Diligence in Seeking Leave: CyWee first learned of Samsung’s private
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`uncorroborated interview with Mr. Lnu when it received Dr. Mercer’s rebuttal report on
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`December 2, 2018.38 CyWee then addressed the issue with Dr. Brown and conferred with
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`Samsung on December 12, 2018 about the need to supplement Dr. Brown’s report. CyWee
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`37 Dkt. 250 at 13.
`38 No recordings or notes of the interview have been produced. Nothing exchanged between
`Qualcomm and Samsung has been produced either, as they are claiming a joint interest privilege
`from revealing their cooperation in defeating CyWee’s claims.
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`prejudice by Samsung must ring hollow in light of the very circumstances that gave rise to this
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`motion—despite repeatedly denying any control over Qualcomm’s production of source code,
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`and despite denying any ability to facilitate Qualcomm’s cooperation in discovery (and thus
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`forcing CyWee to engage in protracted third-party discovery), Samsung was able to coordinate a
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`one-on-one, off the record conversation between its expert and Qualcomm’s representative well
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`after the representative was deposed, and a matter of days before the deadline for serving rebuttal
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`expert reports. Samsung will suffer no prejudice.
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`III. CONCLUSION
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`CyWee respectfully requests that it be granted leave to supplement its expert reports and
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`infringement contentions within seven days.
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`Date: December 19, 2018
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`Respectfully submitted,
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`/s/ William D. Ellerman
`William D. Ellerman
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`Michael W. Shore
`Texas State Bar No. 18294915
`mshore@shorechan.com
`Alfonso Garcia Chan
`Texas State Bar No. 24012408
`achan@shorechan.com
`Christopher L. Evans
`Texas State Bar No. 24058901
`cevans@shorechan.com
`Ari B. Rafilson
`Texas State Bar No. 24060456
`arafilson@shorechan.com
`William D. Ellerman
`Texas State Bar No. 24007151
`wellerman@shorechan.com
`Paul T. Beeler
`Texas State Bar No. 24095432
`pbeeler@shorechan.com
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`
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`SHORE CHAN DEPUMPO LLP
`901 Main Street, Suite 3300
`Dallas, Texas 75202
`Tel: (214) 593-9110
`Fax: (214) 593-9111
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`Attorneys for Plaintiff
`CyWee Group Ltd.
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that all counsel of record who are deemed to have consented to
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`electronic service are being served with a copy of this document via the Court’s CM/ECF system
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`per Local Rule CV-5(a)(3) on December 19, 2018.
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`/s/ William D. Ellerman
`William D. Ellerman
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`CERTIFICATE OF CONFERENCE
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`This is to certify that counsel has complied with the meet and confer requirement in Local
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`Rule CV-7(h) and the issues are presented to the Court to resolve.
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`/s/ William D. Ellerman
`William D. Ellerman
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`CERTIFICATE OF AUTHORIZATION TO SEAL
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`I hereby certify that under Local Rule CV-5(a)(7), the foregoing document is filed under
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`seal pursuant to the Court’s Protective Order entered in this matter.
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`/s/ William D. Ellerman
`William D. Ellerman
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