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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`ANCORA TECHNOLOGIES, INC.
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`VS.
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`LG ELECTRONICS, INC., ET AL
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`*
`*
`*
`*
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`September 9, 2020
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`* *
`
` CIVIL ACTION NO. AU-20-CV-34
`SAMSUNG ELECTRONICS CO., LTD, *
` ET AL
`*
`
`BEFORE THE HONORABLE ALAN D ALBRIGHT, JUDGE PRESIDING
`TELEPHONIC DISCOVERY HEARING
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`APPEARANCES:
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`For the Plaintiff:
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`For Defendant LG:
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`For Defendant Samsung:
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`Charles L. Ainsworth, Esq.
`Robert Christopher Bunt, Esq.
`Parker, Bunt & Ainsworth, P.C.
`100 East Ferguson, Suite 418
`Tyler, TX 75702
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`Steven M. Seigel, Esq.
`Susman Godfrey L.L.P.
`1201 Third Avenue, Suite 3800
`Seattle, WA 98101
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`Elizabeth M. Chiaviello, Esq.
`Winstol D. Carter, Jr., Esq.
`Thomas R Davis, Esq.
`Morgan Lewis and Bockius LLP
`1000 Louisiana Street, Suite 4000
`Houston, TX 77002
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`Collin W. Park, Esq.
`Morgan Lewis & Bockius, LLP
`1111 Pennsylvania Ave., N.W.
`Washington, DC 20004-2541
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`Anupam Sharma, Esq.
`Matthew Phelps, Esq.
`Covington & Burling LLP
`3000 El Camino Real
`5 Palo Alto Square, 10th Floor
`Palo Alto, CA 94306
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`ANCORA Ex. 2003, Page 1
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`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`ANCORA TECHNOLOGIES, INC.
`
`VS.
`
`LG ELECTRONICS, INC., ET AL
`
`*
`*
`*
`*
`
`September 9, 2020
`
`* *
`
` CIVIL ACTION NO. AU-20-CV-34
`SAMSUNG ELECTRONICS CO., LTD, *
` ET AL
`*
`
`BEFORE THE HONORABLE ALAN D ALBRIGHT, JUDGE PRESIDING
`TELEPHONIC DISCOVERY HEARING
`
`APPEARANCES:
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`1 2 3 4 5 6 7 8 9
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`For the Plaintiff:
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`For Defendant LG:
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`For Defendant Samsung:
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`Charles L. Ainsworth, Esq.
`Robert Christopher Bunt, Esq.
`Parker, Bunt & Ainsworth, P.C.
`100 East Ferguson, Suite 418
`Tyler, TX 75702
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`Steven M. Seigel, Esq.
`Susman Godfrey L.L.P.
`1201 Third Avenue, Suite 3800
`Seattle, WA 98101
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`Elizabeth M. Chiaviello, Esq.
`Winstol D. Carter, Jr., Esq.
`Thomas R Davis, Esq.
`Morgan Lewis and Bockius LLP
`1000 Louisiana Street, Suite 4000
`Houston, TX 77002
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`Collin W. Park, Esq.
`Morgan Lewis & Bockius, LLP
`1111 Pennsylvania Ave., N.W.
`Washington, DC 20004-2541
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`Anupam Sharma, Esq.
`Matthew Phelps, Esq.
`Covington & Burling LLP
`3000 El Camino Real
`5 Palo Alto Square, 10th Floor
`Palo Alto, CA 94306
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`ANCORA Ex. 2003, Page 1
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`Court Reporter:
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`Melissa Richards Smith, Esq.
`Gillam & Smith, LLP
`303 South Washington Avenue
`Marshall, TX 75670
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`Kristie M. Davis
`United States District Court
`PO Box 20994
`Waco, Texas 76702-0994
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`Proceedings recorded by mechanical stenography, transcript
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`produced by computer-aided transcription.
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`ANCORA Ex. 2003, Page 2
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`(September 9, 2020, 10:30 a.m.)
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`MS. MILES: Telephonic discovery hearing in Civil Action
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`1:20-CV-34, styled Ancora Technologies, Incorporated versus LG
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`Electronics Incorporated, and others.
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`THE COURT: If I could hear announcements from counsel,
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`please.
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`MR. SEIGEL: Good morning, Your Honor. This is Steve
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`Seigel from Susman Godfrey on behalf of plaintiff Ancora, and I
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`believe that Charley Ainsworth and Chris Bunt are also on the
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`line.
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`THE COURT: Okay. Good to hear that.
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`And for defendants?
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`MR. CARTER: Good morning, Your Honor. Winn Carter for
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`LGE, along with Collin Park, Elizabeth Chiaviello and Tom
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`Davis.
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`THE COURT: Very good. Thank you.
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`Okay. I'm sorry. Was there someone else that wanted to
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`announce?
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`MR. SHARMA: Yes. Good morning, Your Honor. This is
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`Anupam Sharma from Covington Burling on behalf of Samsung.
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`Also with me is Matthew Phelps from Covington.
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`THE COURT: Okay. Anybody else?
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`MS. SMITH: Your Honor, it's Melissa Smith on behalf of
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`Samsung as well.
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`THE COURT: Thanks for being here.
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`ANCORA Ex. 2003, Page 3
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`MS. SMITH: Good morning.
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`THE COURT: Good morning.
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`Is that everyone?
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`Okay. And I'm happy to jump in and take up the matters.
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`I've got the e-mail. So I think we're all ready to go.
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`MR. CARTER: Yes, Your Honor. So Winn Carter for LGE.
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`As we reported in our e-mail this morning, we have
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`responded -- or had an opportunity, and we thank you for that
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`opportunity to speak with our clients about the three asks that
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`were first raised in the call on Thursday.
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`And regarding those three asks from Ancora, we have agreed
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`to produce a witness to discuss the e-mail practices that they
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`asked for with that witness being produced on or before
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`September the 24th I believe was the date. Obviously it will
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`be by a remote hearing, given the current circumstances both in
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`the United States and in Korea. And we've asked for Ancora's
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`proposal on how the logistics of the deposition will take place
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`and so forth. So we're awaiting those directions from Ancora.
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`Regarding the second ask from Ancora that was requesting
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`that LGE supplement its response to Ancora's contention
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`Interrogatory No. 13 by September the 11th, since this is a
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`contention interrogatory, Your Honor, and obviously fact
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`discovery and expert discovery is not complete -- been
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`completed yet, and that is several weeks away, we're still
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`willing to supplement based upon our current information, the
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`ANCORA Ex. 2003, Page 4
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`information that was provided in Interrogatory No. 13, and
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`would be willing to do so by I believe the 25th of September.
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`We also have -- and we raised this in our call with Ancora
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`on Friday. We also have outstanding contention
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`interrogatories, specifically one dealing with invalidity
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`contentions, and we raised this because they did not answer
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`that contention interrogatory. They provided a bunch of
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`objections and said that we would discuss with you a mutual
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`time to respond to these contention interrogatories, which we
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`understood to be for both parties. And so if they wish for us
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`to respond to the contention interrogatory by September 25th to
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`provide that, it seems only right, citing the goose-gander
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`rule, that by September 25th Ancora also provide its response
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`to that Interrogatory No. 13 dealing with invalidity
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`contentions. That's the proposal we made, and --
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`THE COURT: Mr. Carter. Mr. Carter.
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`MR. CARTER: Yes.
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`THE COURT: This is Alan Albright.
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`What -- I know generally speaking what the
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`interrogatory you're -- what specifically are you seeking at
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`this time for the plaintiff to add with respect to the
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`invalidity? If you could help me out with a little more
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`specificity.
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`MR. CARTER: Yes, sir. The Interrogatory No. 13 asks for
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`information concerning their position on the invalidity
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`ANCORA Ex. 2003, Page 5
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`contentions. I don't have that interrogatory in front of me at
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`this point, but perhaps one of my colleagues can pull it up or
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`speak to it more specifically, but the answer -- the answer
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`that Ancora provided was basically no answer. They did not
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`respond at all and they said that we -- because discovery's
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`ongoing, investigation's ongoing, expert discovery, all of the
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`issues associated with contention interrogatories, they refuse
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`to answer. And so they have not provided any answer at all.
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`So that's the issue that we're dealing with at this point. We
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`would like for them to provide a supplemental answer to that
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`interrogatory, answering the contention interrogatory if we're
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`in the position they have to do so as well.
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`THE COURT: Well, I'm not sure that this is -- help me out
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`here a little bit. I'm not sure that this is quite a bilateral
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`thing the way you're suggesting, but I'm not saying you're
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`wrong. I -- if I understand correctly what they -- and I'll
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`hear from Mr. Siegel, but my understanding of what they are
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`seeking in terms of discovery from you in the contention
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`interrogatory they want is essentially information that is in
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`your possession, your client's possession that they need as
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`opposed to a legal position which is what you want. At least I
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`think that's what you want. Maybe I'm not fully understanding
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`what it is you want with regard to their invalidity
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`contentions. I see them as different -- kind of different
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`asks, but I may be missing it, and I certainly want you to
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`ANCORA Ex. 2003, Page 6
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`explain it to me if I'm not fully understanding what it is you
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`want. I don't see reciprocity here in this situation, but I
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`certainly want to be fair, and if I'm missing it, you know, let
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`me know what it is that I'm missing.
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`MR. CARTER: Yeah. So if you look at Interrogatory -- our
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`Interrogatory No. 13 which we attached. So what they're asking
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`for is our contention -- let me get to it here. Their
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`interrogatory to us says: To the extent that you contend that
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`any limitation or step or any asserted claim is performed by an
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`entity other than you or is not attributable to you, state for
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`each such limitation or step.
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`And the way we've answered that because -- by the
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`phraseology of their interrogatory, we basically -- we say, we
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`are not -- we contend that LGE does not do those steps. We
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`have no contention at this time that anyone else performs those
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`steps. In other words, they're asking for us to say, based
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`upon the steps contained in the patent, who performs those
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`steps, and we're not taking the position at this point that any
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`third party performs those steps, and we've taken the position
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`that LGE does not perform those steps and we've outlined in our
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`answer specifically how we -- how we respond to that question.
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`THE COURT: Okay. Now, how -- I get that. Now, how is
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`that reciprocal in terms of your -- your -- it seems to me,
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`and, again, I certainly want to be as fair as I can to both
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`sides in terms of reciprocity here, but it seems to me that
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`ANCORA Ex. 2003, Page 7
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`you -- your -- you and your client uniquely have a factual
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`understanding within your ability to know whether or not your
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`clients perform the steps or not that is not the same as asking
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`the plaintiff to inform you as a legal matter why your
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`invalidity contentions at this time prior to the Markman are --
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`whether your -- what their concerns are with your invalidity
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`contentions, which seems to me to be more of a legal matter
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`comparing your -- the art that you've cited to the art to the
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`patents that are asserted. I don't see those still as being
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`reciprocal in terms of asking for the same kinds of
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`information, but help me out maybe on the -- maybe do this.
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`Explain to me how it is that what you're asking the plaintiff
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`to do is not a legal matter and it's something factual that's
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`within their client's understanding that shouldn't have to wait
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`until the Markman. Let me try it that way.
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`MR. CARTER: Well, I'm not -- well, we responded to a
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`contention interrogatory that was phrased by the plaintiffs.
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`And the way the interrogatory was phrased is how we responded
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`to it. And so we provided the information that we had that was
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`available to it. We're willing to supplement by September the
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`25th to provide additional information that's in our
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`possession, but we don't know what third parties have done.
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`Discovery hasn't been concluded. Other -- the plaintiffs have
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`subpoenaed documents from third parties, and we're receiving
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`those documents. So we don't know what other -- what third
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`ANCORA Ex. 2003, Page 8
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`parties do regarding the application of their work in
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`connection with this patent. What we -- at this point in time
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`what we're saying is we have no contention. We don't know what
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`the third parties do regard -- with regard to the activities
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`that they perform.
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`THE COURT: Okay. Now --
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`MR. CARTER: I'm assuming that's going to come out in
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`discovery. I mean, that's part of the plaintiff's burden is to
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`show those steps in -- as far as how this -- how the OTA
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`updates here infringe.
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`THE COURT: And is there something I've done that makes
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`you think that I am requiring you to go beyond what you just --
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`if that's your -- if that's your position -- your position with
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`regard to what your client does and the information they have,
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`have I done something that indicates that you think I'm
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`requiring you to do more than that at this point?
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`MR. CARTER: No. I think -- I think what I'm concerned
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`about is that you may require us to do more. In other words,
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`you may require us to investigate perhaps what other -- what
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`third parties do to prove that we do not perform these steps,
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`not that we -- not that the -- excuse me. To be clear, that
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`you may require us to investigate what third parties do in
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`connection with the performance of those steps when in fact
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`that's the plaintiff's burden to show that. That's not
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`information -- excuse me, Your Honor. I didn't mean to
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`ANCORA Ex. 2003, Page 9
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`interrupt you.
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`THE COURT: No. No. No. No. No. I interrupted you.
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`So --
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`MR. CARTER: That's not information that -- in comparison
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`to the steps that are contained within the patent versus what
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`our knowledge is, we don't know at this time that information.
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`THE COURT: Well, and I don't know -- if that's your
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`response at this time -- well, let me hear from Mr. Siegel
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`because I'm -- I don't know -- if Mr. Siegel is asking for me
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`to require you to give that information -- to do that
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`investigation at this time, let me make sure that he is asking
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`me to tell you to do that and then I'll hear from Mr. Siegel
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`why he thinks he would be entitled to have you do that at this
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`point.
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`MR. CARTER: Okay.
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`MR. SEIGEL: Thank you, Your Honor. This is Mr. Siegel.
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`I think we can -- I hopefully can clarify this a little
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`bit. As I explained to LG on the phone in some detail on
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`Friday, what we are asking LG to do is not investigate third
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`parties', you know, operations and provide information that is
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`not within their custody and control, but, rather, as we, you
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`know, explained in our -- or as we requested in our
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`Interrogatory No. 13, we asked them to explain with reference
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`to our operative infringement contention and our allegations
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`that contain -- factual material contained in those
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`ANCORA Ex. 2003, Page 10
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`contentions. And basically we have stated in those contentions
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`that we think LG is responsible soup to nut for every factual
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`allegation that we state in our contentions and that, as a
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`result, LG is responsible for directly infringing the methods
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`that are asserted in this case.
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`LG has told us that they believe that third parties are
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`somehow involved, and what we are asking LG to do is with a
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`great degree of specificity with reference to our operative
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`contentions tell us which of the factual allegations we have
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`asserted are not attributable to LG but rather are performed by
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`some third party.
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`Now, we understand that LG is taking the position that it
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`doesn't know the details about those third parties'
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`involvement, but what we believe we are entitled to know now
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`is, given that they have our infringement contentions, looking
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`at the factual information that we provided to them that we
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`used to say, here's how we think you infringe, which parts of
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`those specific functions, processes or steps are -- you know,
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`did we mistakenly say, LG, you perform, rather than, you know,
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`and have that come back and tell us actually in fact LG doesn't
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`do that. That's attributable to a third party. So that's what
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`we're asking for here is for LG to articulate their
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`noninfringement dissent to the extent that it depends upon some
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`third party performing a step that we've alleged as
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`attributable to LG.
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`ANCORA Ex. 2003, Page 11
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`MR. CARTER: Your Honor, if I might respond to that.
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`THE COURT: Let me -- Mr. Carter, keep whatever you're
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`going to say in your forefront of your mind because I need to
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`ask Mr. Siegel something real quick.
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`So, Mr. Siegel, why is it that you would be -- typically I
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`don't allow a lot of discovery prior to the Markman because I
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`like getting -- how does the information that you're seeking --
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`I get why you want it. You're going to need it. And I also
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`know Mr. Carter is going to have -- I'm going to hear from Mr.
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`Carter about whose burden is whose, but why should I allow this
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`discovery prior to the Markman? How does it impact whatever
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`claim construction work I'm going to be doing? If there's a
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`need for it because you are concerned that you're going to --
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`it's going to be tough for you to get the discovery done within
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`the time limits that you'll have in trial without getting a
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`start now, maybe that's it, but ordinarily this is not
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`discovery that I would allow to advance unless it directly
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`relates to the claim construction process.
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`MR. SEIGEL: Certainly, Your Honor. And I think I should
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`clarify this. We've already had claim construction in this
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`case and we've received your order.
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`THE COURT: Okay.
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`MR. SEIGEL: So but I did want to just briefly kind of
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`24
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`remind the Court that all of these issues and these requests
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`25
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`that we're speaking about were a result of the Court's prior
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`ANCORA Ex. 2003, Page 12
`
`
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`13
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`order that if LG was going to take the position that third
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`parties were involved in these steps and refused to stipulate
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`to controlling or directing those third parties' involvement in
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`delivering software updates to LG phones, that it was required
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`to produce e-mail custodians to search those e-mails so that we
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`could get evidence of this. And then LG subsequently informed
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`us that all of the LG -- the e-mails that we were seeking had
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`been lost or destroyed in some transition to cloud computing.
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`So these -- all of these requests really stem from that because
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`1 2 3 4 5 6 7 8 9
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`we're looking to get at the evidence and information that LG
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`has told us is destroyed or lost. So we're trying to find
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`other ways of getting at that information.
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`THE COURT: Okay. I'm sorry. For some reason I
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`thought -- I was tracking incorrectly where this case was at.
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`So now -- but that also means I'm more confused in each
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`direction. I understand fully now why the plaintiff wants what
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`they want, but I don't understand why the plaintiff has not
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`18
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`maybe updated the invalidity contentions. So now that -- let
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`19
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`me get -- now let me get restarted here. I'll start with Mr.
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`20
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`Carter and I'll hear from Mr. Carter as to why his client is
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`21
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`unwilling to answer discovery. I've got whose burden it is,
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`22
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`but it sounds to me like the interrogatories that plaintiff has
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`23
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`sent you are appropriate, and then I'll hear from Mr. Carter as
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`24
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`to why I think I -- and if you want to add anything as to why
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`25
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`the plaintiff's response on invalidity contentions is
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`ANCORA Ex. 2003, Page 13
`
`
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`14
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`insufficient and I'll hear from Mr. Siegel in response to that.
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`So, Mr. Carter, the interrogatories sound logical to me if
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`we're at this point in the litigation. So help me out why you
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`should not have to answer.
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`MR. CARTER: So Mr. -- it's not a question of not
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`answering, Judge. We have answered. We've provided a detailed
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`answer to the interrogatory. In fact, Mr. Siegel pointed out
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`to some language in our answer, but let me point you to other
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`language in our answer, and it falls on Page 9, and it's
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`1 2 3 4 5 6 7 8 9
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`10
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`consistent with all of the steps that Page 9 of the answers to
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`11
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`interrogatories that we attached. For instance, when you say
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`12
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`that LGE does not contend -- LGE does not contend that any
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`13
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`other person or entities perform this step -- the step that is
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`14
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`being discussed -- any of the accused products in the United
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`15
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`States during the time period.
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`So our contention is is that LGE does not contend that any
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`17
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`third party perform this step. It's not that we're contending
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`that a third party did perform this step. However, if the jury
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`does determine or if somebody does determine that a step was
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`performed in the United States, then it was performed by some
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`third party, not us. Not LGE. So that's -- that's where we
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`22
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`are. But we're saying that we contend that we -- that no third
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`23
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`party performs these steps. Saying it backwards. So Mr.
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`24
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`Siegel wants to say -- wants to get discovery from us about a
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`25
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`contention that we're not making.
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`ANCORA Ex. 2003, Page 14
`
`
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`15
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`THE COURT: Okay. Mr. Siegel -- Mr. Siegel, tell me --
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`you know, occasionally I get this where I'm not sure what to
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`do. Tell me exactly what it is that you want -- if you could
`
`draft my order, tell me what it is you want me to tell Mr.
`
`Carter to do and his client to do, and we'll go from there.
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`MR. SEIGEL: Thank you, Your Honor. Certainly. What I
`
`think the disconnect here and what I think would be in the
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`order is that we're not asking LG to make a contention about
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`the claim limitations as those limitations are phrased in the
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`1 2 3 4 5 6 7 8 9
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`10
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`patent. What we're asking LG to do is make -- take a position
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`11
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`on the factual allegations that we've included in our
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`12
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`infringement contentions. For instance, various screenshots
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`13
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`and, you know, statements by LG about how its phones update
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`14
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`their own software and firmware using the over the air process.
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`15
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`And so to the extent that LG is saying, we understand that
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`16
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`you've taken that factual information from publicly available
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`17
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`sources and you're saying that we view that, well, at least a
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`18
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`portion of that is not done by us and the portion that's not
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`19
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`done by us is this. And so it's really looking at it from the
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`20
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`perspective of our factual contentions. We want LG to tell us
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`21
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`which portions with specificity of our factual contentions they
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`22
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`are saying they do not do. So this is without regards to the
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`23
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`claim language and the language of the patent. We're really
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`24
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`just asking them to tell us what factual material we've
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`25
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`asserted that LG does they are now claiming they do not do.
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`ANCORA Ex. 2003, Page 15
`
`
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`16
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`THE COURT: Mr. Carter, that -- the way Mr. Siegel phrased
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`it made total sense to me.
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`MR. CARTER: Well, then he should send an interrogatory
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`which would then be signed by our client and verified that asks
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`that information. The Interrogatory No. 13 that we're fighting
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`about today does not ask for that information. And so the best
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`way, in my view, Your Honor, would be for an interrogatory to
`
`be sent that -- by the plaintiffs to seek that type of
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`information and then we'll deal with it. But we can't -- he's
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`1 2 3 4 5 6 7 8 9
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`now asking us to restructure an interrogatory that's specific
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`11
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`in one degree and now to move it into another hemisphere.
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`13
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`THE COURT: Okay. Fair enough.
`
`Mr. Siegel, why don't we --
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`MR. SEIGEL: Thank you. I just really want to clarify
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`15
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`that our interrogatory is actually phrased exactly how I just
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`16
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`described it, and I will quote directly. Quote -- this is the
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`Interrogatory No. 13: To the extent that you contend that any
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`limitation or step of any asserted claim as alleged in Ancora's
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`19
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`operative infringement contentions is performed by an entity
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`20
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`other than you are not attributable to you, please explain...
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`21
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`So I do want to state that this is actually the very
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`22
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`request that we issued. If LG was confused about it or had
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`23
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`some question, they were more than able to ask us for
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`24
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`clarifying information, but they didn't do so, and so that's
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`25
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`why we're asking for this information now.
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`ANCORA Ex. 2003, Page 16
`
`
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`17
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`MR. CARTER: And, Your Honor, Winn Carter again.
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`The operative phrase there is "to the extent that you
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`contend." In the interrogatories I pointed out in my initial
`
`statement LGE does not contend that a third party performs any
`
`of those steps. And so that's where we are. And if there's
`
`some way that --
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`THE COURT: Mr. -- let me try this. Mr. Seigel, are you
`
`able -- I think I've got the nub of the -- are you able to
`
`modify your interrogatory to take out the, do you contend,
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`1 2 3 4 5 6 7 8 9
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`10
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`which I get, maybe more form over substance, but that appears
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`11
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`to be what Mr. Carter is concerned with on behalf of his
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`12
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`client. Are you able to restructure your interrogatory to
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`13
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`leave out that you contend -- maybe you can say whatever words
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`14
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`you want, that you deny, however you want to do it, but I
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`15
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`understand -- but if you -- can you edit your interrogatory and
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`16
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`resend it to Mr. Carter and I can give him ten days to get you
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`17
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`an answer?
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`18
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`MR. SEIGEL: Certainly. We can certainly do that, Your
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`19
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`Honor.
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`20
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`THE COURT: Okay. And that's -- and that's ten real world
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`21
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`days.
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`22
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`And so now let's turn to Mr. Carter's concern that the
`
`23
`
`plaintiff has not responded to its interrogatory with respect
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`24
`
`to the invalidity contentions.
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`25
`
`Mr. Carter, if you would remind me exactly what your
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`ANCORA Ex. 2003, Page 17
`
`
`
`18
`
`interrogatory says.
`
`MR. CARTER: Yes, Judge. We were asking for the facts
`
`that were supporting the invalidity contentions or disputing
`
`the invalidity contentions. Unfortunately, I don't have that
`
`interrogatory in front of me.
`
`THE COURT: Well, and, Mr. Carter, I think that's -- I
`
`think that's my problem is typically I don't know -- and as
`
`I've said a thousand times, no one allowed me within a thousand
`
`feet of drafting invalidity contentions other than maybe for
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`1 2 3 4 5 6 7 8 9
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`10
`
`grammar purposes, but that being said, I think I do understand
`
`11
`
`what an invalidity contention is, which is that it's not, in my
`
`12
`
`opinion, a factual matter as much as a legal matter which is
`
`13
`
`that you in response to the '123 patent that the plaintiff is
`
`14
`
`asserting, you have found the Smith patent that anticipates it
`
`15
`
`or in combination with someone else makes it obvious, and I
`
`16
`
`don't see that as a factual matter, and maybe I'm -- again,
`
`17
`
`maybe it's the English that is my problem, but to me it is --
`
`18
`
`you know, that it's -- the invalidity contentions show that the
`
`19
`
`art that is being asserted reads on art that the patents are
`
`20
`
`being asserted. I don't see that as a factual matter as much
`
`21
`
`as it's something for experts to opine on, and I don't,
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`22
`
`generally speaking, see that as something that's well responded
`
`23
`
`to in the form of an interrogatory as much as I do in the form
`
`24
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`of an expert report, and that's why I'm not necessarily
`
`25
`
`tracking on your request for -- for what facts there are that
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`ANCORA Ex. 2003, Page 18
`
`
`
`19
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`you want the plaintiff to give you with respect to why they may
`
`disagree with your invalidity contentions. So if you could
`
`explain to me, that would be great.
`
`MR. CARTER: I understand, Your Honor, and if that becomes
`
`an issue further, we'll -- if this interrogatory becomes an
`
`issue in the future -- the main thing was the position that
`
`Ancora was taking that these types of contention
`
`interrogatories were premature, and that's the reason I raised
`
`it. But we'll come back to the Court if we have an issue with
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`1 2 3 4 5 6 7 8 9
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`that.
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`11
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`THE COURT: Mr. Carter, I want to make absolutely clear.
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`12
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`I'm very concerned. I always want y'all to leave these
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`13
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`hearings with -- feeling that I've been fair to both sides.
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`14
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`And so if you get to the point where you think that the
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`15
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`plaintiff is not answering your discovery, I'm going to be as
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`16
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`equally strict that plaintiffs respond to your discovery as I
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`17
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`would be in the other direction. And with respect -- I will
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`18
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`say, generally speaking, with respect to this one issue, I
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`19
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`think it's much better dealt with in the expert reports than
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`20
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`asking an interrogatory about it because it just seems to me to
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`21
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`be something that an expert is going to have to opine about
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`22
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`with respect to why the art that you've asserted as
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`23
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`invalidating the patents that are in the case read on or don't
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`24
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`read on. Essentially the interrogatory response would just be
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`25
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`written by either a lawyer helping the expert or the expert.
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`ANCORA Ex. 2003, Page 19
`
`
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`20
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`So if you feel like you need help in discovery, that's fine.
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`If you feel like the discovery -- the expert reports you get
`
`from the plaintiff are inadequate, then you can certainly come
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`to the Court with that as well.
`
`MR. CARTER: Thank you, Your Honor. I understand.
`
`THE COURT: And what else do I need to take up with you
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`guys?
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`MR. CARTER: There was a third ask, Your Honor.
`
`THE COURT: Okay.
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`1 2 3 4 5 6 7 8 9
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`10
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`MR. CARTER: And it dealt with obtaining information from
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`11
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`LG's CNS Korea, and the plaintiff had asked us to obtain
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`12
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`documents from this other entity, separate entity, LG CNS
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`13
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`Korea. And we -- as you may recall, we drafted an e-mail based
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`14
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`upon what Ancora wanted us to ask them for. We sent that over
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`15
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`to LG CNS. We've been told -- we've received word that LG CNS
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`16
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`declines to follow that request. We're investigating what else
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`17
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`we can do, but at this point we don't have the ability to
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`18
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`compel LG CNS to do anything.
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`THE COURT: Okay. Mr. Siegel?
`
`MR. SEIGEL: Thank you, Your Honor. We -- as we explained
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`21
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`to LG, you know, LG CNS is a wholly owned subsidiary of the LG
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`22
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`corporation and it also has a contractual relationship with LG.
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`23
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`So we find it hard to believe that there aren't ways to, you
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`24
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`know, cajole these e-mails out of LG CNS, but, you know, taking
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`25
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`them at their word, you know, we understand LG is taking the
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`ANCORA Ex. 2003, Page 20
`
`
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`21
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`position that it -- really its hands are tied. You know, I
`
`think what this ultimately means for us is that we're going to
`
`have to go through the Hague to obtain these e-mails from this
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`LG subsidiary, and we can do so, but it may mean that we're
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`going to have, you know, certain amounts of discovery that, you
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`know, we'll have to see how this works out just with regards to
`
`the close of fact discovery and whether we're able to cure what
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`we need before that time.
`
`THE COURT: Well, Mr. Siegel, one of the great things
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`1 2 3 4 5 6 7 8 9
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`about this job in doing as much intellectual property work as I
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`11
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`get to do, one of the great things is it's rare that a lawyer
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`12
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`ever needs my advice on anything because the level of lawyering
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`13
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`is so exceptional. So I try never to do that, but I am --
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`14
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`what your -- my only concern here is keeping this case on track
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`15
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`to get to trial and any delay that this might cause me in my
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`16
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`ability to keep this case on track. So it certainly -- if --
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`this is for everyone. I would be extremely unhappy if it were
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`18
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`to be determined later that any of the defendants that are
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`in -- are in the case have the ability to obtain the documents
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`20
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`from LG CNS more quickly or without as muc
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