IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`§§
`
`§
`§ Case No. 2:19-CV-00414-JRG
`§
`
`BRIGHT DATA LTD.
`
` Plaintiff,
`
` v.
`
`§§
`
`§
`
`TEFINCOM S.A. D/B/A NORDVPN
`
` Defendants.
`
`JOINT STATUS REPORT REGARDING MEDIATION
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`Pursuant to the Court’s March 16, 2022 mediation orders (“Mediation Order”)1 entered in
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`each of the Bright Data Ltd. v. Teso LT, UAB et. al., Case No. 2:19-CV-00395 (“Teso Action”),
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`Bright Data Ltd. v. Code200, UAB et. al., Case No. 2:19-CV-00396 (“Code200 Action”) and
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`Bright Data Ltd. v. Tefincom S.A., Case No. 2:19-CV-00396 (“Tefincom Action”) (collectively,
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`“Related Actions”) and subsequent orders regarding the same, the Parties held an in-person medi-
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`ation on August 24, 2022 before Judge Folsom regarding the Related Actions. Pursuant to the
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`Court’s Mediation Order in the Teso Action, Plaintiff Bright Data Ltd. (“Bright Data”) and De-
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`fendants Teso LT, UAB, Metacluster LT, UAB and Oxysales, UAB (collectively, “Defendants”)
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`respectfully file this Joint Status Report. As stated in Judge Folsom’s August 25, 2022 Mediation
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`Report, “The mediation session ended in an impasse. No further follow up is anticipated.” Teso
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`Action, Dkt. 586 at 1; Code200 Action, Dkt. 277 at 1; Tefincom Action, Dkt. 214 at 1.
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`Remaining Disputes in Tefincom Action: The Parties have the following remaining dis-
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`putes and other motions:
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`1 A similar Mediation Order was entered in each of the Teso Action (Dkt. 580), Code200 Action
`(Dkt. 270), and Tefincom Action (Dkt. 205).
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`Major Data, UAB v. Bright Data Ltd.
`IPR2022-00915, EX. 2028
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` Defendants’ response and subsequent briefing to Bright Data’s pending Motion to
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`Exclude Dr. Aviel Rubin (“Motion to Exclude Dr. Aviel Rubin,” November 18,
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`2021, Dkt. 179);
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` The Parties’ Joint Stipulation and Motion for Entry of Order Addressing Claims
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`and Parties to address Tefincom’s post-litigation reorganization (See e.g. Dkt. 183);
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` Bright Data’s Second Amended Complaint (See e.g. Dkt. 183);
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` Tefincom’s Answer to Second Amended Complaint (See e.g. Dkt. 183);
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` The Parties exchange of Updated Exhibit Lists, Witness Lists and Deposition Des-
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`ignations;
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` The Filing of the Joint Pretrial Order, Proposed Jury Instructions, and Joint Pro-
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`posed Verdict Form; and
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` Bright Data’s Motions in Limine (Dkt. 167)(Briefing is incomplete as Defendant
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`has not filed its response to the motions);
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` Defendants’ Motions in Limine (Dkt. 166)(Briefing is incomplete as Defendant has
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`not filed its reply in support of the motions);
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` Defendant’s motion for Summary Judgment of Noninfringement of the ‘319, ‘510,
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`and ‘614 Patents (Dkt. 93);
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` Bright Data’s Motion for Partial Summary Judgment on Certain Invalidity Grounds
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`(Dkt. 92);
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` Defendant’s Motion for Partial Summary Judgment of Noninfringement or in the
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`Alternative Invalidity for the ’511 Patent (Dkt. 91);
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` Defendant’s motion to Exclude Opinions and Testimony of Dr. Vernon Thomas
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`Rhyne, III (Dkt. 90);
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` Bright Data’s Motion to Strike Certain Invalidity Opinions of Dr. Michael J. Freed-
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`man (Dkt. 89);
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` Defendant’s motion to Exclude Opinions and Testimony of Dr. Stephen Becker
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`(Dkt. 88);
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` Defendant’s Motion for Summary Judgment of Invalidity of the ‘’319, ‘’510, and
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`’511 Patents (Dkt. 87);
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` Bright Data’s Motion to Strike Certain Non-Infringement Opinions of Dr. Kevin
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`Almeroth (Dkt. 86);
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` Bright Data’s Daubert Motion to Exclude Expert Testimony of Keith R. Ugone
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`(Dkt. 85);
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` Bright Data’s Motion for Leave to File Second Amended Infringement Contentions
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`(Dkt. 75); and
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` Bright Data requests the production of updated financials from Tefincom and an-
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`ticipates filing a Motion for Updated Financials to the extent there is any dispute.
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`Bright Data further anticipates updating its damages expert’s calculations regarding
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`the same.
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`Bright Data’s Scheduling Proposal and Position in Tefincom Action: The Court’s No-
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`vember 11, 2021 Order found “that a continuance is appropriate in light of the Jury Verdict in the
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`Teso case and the parties’ ongoing mediation efforts.” ECF 181 at 1. Bright Data engaged in
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`mediation in good faith, but the mediation concluded without any resolution with the mediator
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`reporting “The mediation session ended in an impasse. No further follow up is anticipated.” Tefin-
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`com Action, Dkt. 214 at 1. Consequently, Bright Data requests that the stay be lifted and the Court
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`grant Bright Data’s proposed schedule to proceed with resolution of the above disputes and trial.
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`Tefincom Action, Dkt. 205. Understanding that both the Tefincom and Code200 Actions are in
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`the pretrial phase, Bright Data proposes that the Court schedule the Tefincom trial first, because
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`the Tefincom Action involves significantly higher damages and resolution of that case may reduce
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`issues in the Code200 Action.
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`Bright Data’s
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`Event
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`Proposed Dates
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`September 8, 2022 Parties file the Joint Stipulation and Motion for Entry of Order Address-
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`ing Claims and Parties;
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`Defendant files its Opposition to Bright Data’s Motions in Limine; and
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`Defendant files its Reply in Support of Defendants’ Motions in Limine.
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`September 15,
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`Parties Exchange Updated Exhibit Lists, Witness Lists and Deposition
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`2022
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`Designations;
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`Bright Data files it Reply in Support of its Motion to Exclude Dr. Aviel
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`Rubin;
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`Bright Data files it Reply in Support of Its Motions in Limine;
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`Bright Data files its Second Amended Complaint; and
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`Defendant produces updated financials.
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`September 22,
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`Parties File Joint Pretrial Order, Joint Proposed Jury Instructions, and
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`2022
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`Joint Proposed Verdict Form;
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`Parties file Surreplies to Motions in Limine; and
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`Defendant files its Surreply to the Motion to Exclude Dr. Aviel Rubin;
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`Bright Data files its Motion for Updated Financials
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`September 29,
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`Tefincom Files Answer to Second Amended Complaint
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`2022
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`October 2022
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`Pretrial Conference
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`November 2022 –
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`Jury Selection and Trial
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`December 2022
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`Having reached an impasse in the mediation, Defendant has no basis to request a continued
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`stay based on a speculative appeal of the Teso Action or post-grant proceedings before the PTAB.
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`The November 5, 2021 jury verdict upheld the validity of all asserted claims of the ’319, ’510, and
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`’614 Patents. Despite the nine month delay since the jury verdict, defendants in the Teso Action
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`have filed no motions challenging the jury finding of validity and Tefincom has no basis for as-
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`serting that this Court or the Federal Circuit will simplify any issues by overturning the jury ver-
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`dict. Further, Defendant’s requested administrative closure of the matter would clearly prejudice
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`Bright Data as it would stay the case indefinitely. In addition, such an indefinite stay is unwar-
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`ranted given the late stage of the litigation as both parties were preparing for the November 29,
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`2021 pretrial conference when the conference and trial were continued to accommodate mediation.
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`The IPRs and EPRs also do not warrant a stay under the factors described in NFC Techs.
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`LLC v. HTC Am., Inc., Case No. 2:13-cv-1058-WCB, 2015 U.S. Dist. LEXIS 29573, at *5 (E.D.
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`Tex. Mar. 11, 2015) (Bryson, J.): (1) Bright Data will be prejudiced, (2) the litigation is in the
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`advanced pre-trial phase, and (3) a stay will not likely simplify issues for the Court. None of the
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`IPRs against the any Bright Data patents have resulted in a final written decision invalidating any
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`of the patent claims or addressing any of the claim construction issues, and the earliest final written
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`decision would not be expected before May 2023. Furthermore, the reexaminations (EPRs) of the
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`’511 and ’614 Patents referenced by Defendant below are each subject to a pending petition to stay
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`based on the copending IPRs handling the same claim construction issues.
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` With regard to scheduling, Defendant has had more than nine months to prepare its re-
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`sponses to the Bright Data’s Motions in Limine and its own Replies to Bright Data’s Oppositions
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`to Tefincom’s Motions in Limine, which Bright Data filed back in November 2021. With regard
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`to updated financials, Defendant also has an obligation to update its own financials which are
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`particularly dated given the nine month delay. Bright Data’s damages expert identified the Tefin-
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`com financials that he relied upon and there should be no issue for Tefincom to produce the current
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`data.
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`Defendant’s Scheduling Proposal and Position in Tefincom Action: Defendant pro-
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`poses that the Court administratively close this matter pending the resolution of the Teso case by
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`the Court and, should either party appeal, the Federal Circuit. The Tefincom matter involves the
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`same three patents as Teso, as well as one patent from Code200. Not only do the patents overlap,
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`the parties jointly moved, and the Court accepted the parties’ request “[t]o find that the ultimate
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`claim constructions adopted by the Court in Teso and Code200 shall apply as if ordered by the
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`Court in this case” because of the similarity in positions. ECF Nos. 62, 63. Thus, resolution of
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`the Teso litigation will provide further guidance in this matter. The efficiencies gained by waiting
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`for resolution of the Teso matter would conserve judicial resources because substantial work re-
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`mains for both the Court and the parties to prepare for trial. Five Daubert motions, four motions
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`for summary judgment, and numerous motions in limine and evidentiary objections remain pend-
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`ing. The parties also have not completed briefing on motions in limine or submitted the pretrial
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`order.
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`Further, the PTAB has issued four institution decisions granting institution of two separate
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`IPRs challenging all asserted claims of the asserted ’319 Patent and another two separate IPRs
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`challenging all asserted claims of the asserted ’510 Patent. In each decision, the PTAB rejected
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`Bright Data’s assertion that the Court’s constructions of “client device” and “server” are wrong
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`and, instead, held: “We credit the district court’s interpretation of the claim terms” “client device”
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`and “first/second server.” See, e.g., IPR2021-01493, Paper 11 at 22. Additionally, all asserted
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`claims of the asserted ’511 and ’614 Patents stand rejected in final office actions in ex parte reex-
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`aminations, where the examiner has likewise rejected Plaintiff’s arguments that the Court’s claim
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`constructions of “client device” and “server are wrong.” See, e.g., Final Office Action in Reex-
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`amination No. 90/014,624 at 70 (holding, contrary to Plaintiff’s arguments and as the Court held,
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`a “computer can be both a client and a server depending on what role it is playing at a particular
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`time”). Continued progress of these patent office proceedings may further resolve or simplify this
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`matter. Accordingly, administratively closing this matter would conserve judicial resources.
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`Should the Court decline to administratively close this matter, Bright Data’s scheduling
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`proposal is inappropriate. First, Bright Data has no justification for proposing trial in Tefincom
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`proceed before trial in Code200 despite the fact that Code200 has a lower case number. Second,
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`Bright Data’s proposal that Defendant be required in four business days to make multiple substan-
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`tive filings addressing issues that have been dormant for almost a year is not necessary. Third,
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`Bright Data’s proposal that “Defendant produces updated financials” in two weeks is not practical.
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`Defendant will, of course, work on good faith to update discovery as necessary. But Bright Data
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`has yet to even identify what updated information it requests. Defendant cannot be expected to
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`estimate the time to collect, let alone produce, information that has yet to be identified. The com-
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`pressed timing of Bright Data’s proposal demonstrates that, even if the Court agreed that the Tefin-
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`com case should move forward now, Bright Data’s October pretrial conference request is not prac-
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`tical.
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`Dated: August 31, 2022
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`Respectfully submitted,
`
`/s/ Ronald Wielkopolski
`J. MARK MANN
` Texas State Bar No. 12926150
`mark@themannfirm.com
`G. BLAKE THOMPSON
` Texas State Bar No. 24042033
`blake@themannfirm.com
`MANN | TINDEL | THOMPSON
`300 West Main Street
`Henderson, Texas 75652
`Telephone: (903) 657-8540
`Telecopier: (903) 657-6003
`
`KORULA T. CHERIAN
` sunnyc@cherianllp.com
`ROBERT HARKINS
`bobh@cherianllp.com
`CHERIAN LLP
`1936 University Avenue, Suite 350
`Berkeley, California 94704
`Telephone: (510) 944-0192
`
`THOMAS DUNHAM
` tomd@cherianllp.com
`RONALD WIELKOPOLSKI
` ronw@cherianllp.com
`CHERIAN LLP
`1901 L Street, NW, Suite 700
`Washington, DC 20036
`Telephone: (202) 838-1560
`
`S. CALVIN CAPSHAW
`
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` Texas State Bar No. 03783900
`ccapshaw@capshawlaw.com
`ELIZABETH L. DERIEUX
` Texas State Bar No. 05770585
`ederieux@capshawlaw.com
`CAPSHAW DERIEUX, LLP
`114 E. Commerce Avenue
`Gladewater, Texas 75647
`Telephone: (903) 845-5770
`
`Counsel for Bright Data Ltd.
`
`
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`Dated: August 31, 2022
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`Respectfully submitted,
`
`BRETT C. GOVETT
` Texas State Bar No. 08235900
` brett.govett@nortonrosefulbright.com
`NORTON ROSE FULBRIGHT US LLP
`2200 Ross Avenue, Suite 3600
`Dallas, Texas 75201
`Telephone: (214) 855-8000
`Telecopier: (214) 855-8200
`
`DANIEL S. LEVENTHAL
` Texas State Bar No. 24050923
` daniel.leventhal@nortonrosefulbright.com
`NORTON ROSE FULBRIGHT US LLP
`1301 McKinney, Suite 5100
`Houston, Texas 77010-3095
`Telephone: (713) 651-5151
`Telecopier: (713) 651-5246
`
`/s/ Brett C. Govett
`MICHAEL C. SMITH
` Texas State Bar No. 18650410
` michael.smith@solidcounsel.com
`SCHEEF & STONE, LLP
`113 East Austin Street
`Marshall, Texas 75670
`Telephone: (903) 938-8900
`Telecopier: (972) 767-4620
`
`STEVEN CALLAHAN
` Texas State Bar No. 24053122
` scallahan@ccrglaw.com
`CRAIG TOLLIVER
` Texas State Bar No. 24028049
` ctolliver@ccrglaw.com
`GEORGE T. “JORDE” SCOTT
` Texas State Bar No. 24061276
` jscott@ccrglaw.com
`MITCHELL SIBLEY
` Texas State Bar No. 24073097
` msibley@ccrglaw.com
`JOHN HEUTON
` Admitted Pro Hac Vice
` jheuton@ccrglaw.com
`CHARHON CALLAHAN
`ROBSON & GARZA, PLLC
`3333 Lee Parkway, Suite 460
`Dallas, Texas 75219
`Telephone: (214) 521-6400
`Telecopier: (214) 764-8392
`
`Counsel for Defendants Tefincom, S.A.
`
`
`
`
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`CERTIFICATE OF SERVICE
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`I hereby certify that all counsel of record who are deemed to have consented to electronic
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`service are being served this 31st day of August, 2022, with a copy of this document via electronic
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`mail.
`
`/s/ Ronald Wielkopolski
`
`
`
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