UNITED STATEST DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`
`
`
`
` Case No. 2:23-cv-00285-JRG-RSP
`
`Plaintiff
`
`
`COBBLESTONE WIRELESS, LLC,
`
`
`
`v.
`
`SAMSUNG ELECTRONICS CO., LTD.,
`SAMSUNG ELECTRONICS AMERICA,
`INC.,
`
`
`
`
`Defendant.
`
`
`
`T-MOBILE USA, INC., AT&T SERVICES, INC., AT&T MOBILITY LLC, AT&T
`CORP., AND CELLCO PARTNERSHIP d/b/a VERIZON WIRELESS TO
`RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION TO MODIFY
`PROTECTIVE ORDER
`
`
`
`
`
`IPR2024-00137
`Petitioners' Ex. 1236
`Ex. 1236.00001
`
`

`

`TABLE OF CONTENTS
`
`INTRODUCTION .............................................................................................................. 1
`
`STATEMENT OF FACTS ................................................................................................. 2
`
`ARGUMENT ...................................................................................................................... 4
`
`I.
`
`COBBLESTONE’S PROPOSED RELIEF IS INAPPROPRIATE AND
`EXTREMELY PREJUDICIAL TO THE CARRIER DEFENDANTS. ..............4
`
`A. Cobblestone Attempts to Circumvent the Rules of Discovery .......................4
`
`B. Cobblestone’s Proposal Is Extremely Prejudicial to the Carrier
`Defendants ......................................................................................................6
`
`II. COBBLESTONE’S POSITION IS INCONSISTENT WITH ITS
`OPPOSITION TO CONSOLIDATION ...............................................................8
`
`III. THIS IS A MESS OF COBBLESTONE’S OWN MAKING ..............................9
`
`CONCLUSION ................................................................................................................. 10
`
`i
`
`IPR2024-00137
`Petitioners' Ex. 1236
`Ex. 1236.00002
`
`

`

`INTRODUCTION
`
`Third-parties T-Mobile USA Inc., AT&T Services Inc., AT&T Mobility LLC,
`
`AT&T Corp., and Cellco Partnership d/b/a Verizon Wireless (collectively the “Carrier
`
`Defendants”) oppose Cobblestone’s Motion to Modify the Protective Order in the above-
`
`captioned case (Dkt. 43, Cobblestone’s “Motion”). For the reasons set forth below,
`
`Cobblestone’s Motion will materially impact the course of litigation in the Carrier
`
`Actions1, to the Carrier Defendants’ detriment. Cobblestone asks the Court to amend a
`
`Protective Order that it previously agreed to so that it may port documents and source code
`
`from Samsung Electronics Co. Ltd. (“Samsung”) and Samsung Electronics America, Inc.
`
`(“Samsung America”) into six separate cases against the Carrier Defendants. Not only does
`
`Cobblestone want a shortcut around proper discovery mechanisms, but its requested relief
`
`actually asks the Court to bless its attempt to cherry-pick discovery conducted outside the
`
`Carrier Defendants’ presence. This proposal is significantly prejudicial to the Carrier
`
`Defendants and cannot be reconciled with Cobblestone’s steadfast efforts to avoid
`
`consolidation of the numerous Cobblestone cases. Cobblestone has repeatedly opposed the
`
`Carrier Defendants’ efforts to consolidate its various actions (including efforts to
`
`consolidate the First and Second Carrier Actions, or the Carrier Actions and the Samsung
`
`Action). Cobblestone has also declined to exercise its rights to seek discovery of foreign
`
`
`1 Cobblestone Wireless, LLC v. T-Mobile USA, Inc., 2:22-cv-00477-JRG-RSP;
`Cobblestone Wireless, LLC v. AT&T Services Inc.; AT&T Mobility LLC; AT&T Corp.,
`2:22-cv-00474-JRG-RSP; Cobblestone Wireless, LLC v. Cellco Partnership d/b/a Verizon
`Wireless, 2:22-cv-00478-JRG-RSP (collectively,
`the “First Carrier Actions”); and
`Cobblestone Wireless, LLC v. T-Mobile USA, Inc., 2:23-cv-00381-JRG-RSP; Cobblestone
`Wireless, LLC v. AT&T Services Inc., AT&T Mobility LLC, and AT&T Corp., 2:23-cv-
`00380-JRG-RSP; Cobblestone Wireless, LLC v. Cellco Partnership d/b/a Verizon
`Wireless, 2:23-cv-00382-JRG-RSP (collectively, the “Second Carrier Actions”). The First
`Carrier Actions and Second Carrier Actions are the “Carrier Actions.”
`
`1
`
`IPR2024-00137
`Petitioners' Ex. 1236
`Ex. 1236.00003
`
`

`

`third parties like Samsung in Korea via the Hague Evidence convention in any of the
`
`Carrier Actions. This is a problem of Cobblestone’s own making, and the Carrier
`
`Defendants should not be asked to waive the normal protections of discovery to resolve it.
`
`The Court should not grant Cobblestone’s Motion.
`
`STATEMENT OF FACTS
`
`Cobblestone’s Serial Filings. Cobblestone filed seven cases related to these issues
`
`over nine months in this district. In the First Carrier Actions, it asserted four patents against
`
`the Carrier Defendants and specifically accused Samsung products. Those cases were filed
`
`on December 15, 2022. Next, Cobblestone filed the Samsung Action on June 16, 2023,
`
`asserting the four patents from the First Carrier Action plus an additional patent: the ’802
`
`patent. Then, on August 25, 2023, Cobblestone filed the Second Carrier Actions in which
`
`it asserted only the ’802 patent against the Carrier Defendants and specifically accused
`
`Samsung products.
`
`Cobblestone’s Infringement Allegations. On March 13, 2023, Cobblestone
`
`specifically identified Samsung products as Accused Instrumentalities pursuant to P.R. 3-
`
`1(b) in the First Carrier Actions. E.g., Ex. 1 (excerpt of Cobblestone’s Preliminary
`
`Disclosure of Asserted Claims and Infringement Contentions to Verizon) at pgs. 2, 9). On
`
`September 28, 2023, Cobblestone identified the same Samsung products as Accused
`
`Instrumentalities in the Samsung Action. See Dkt. 43 at 5 (noting the “complete overlap of
`
`… Samsung Products at issue.”) Finally, on December 11, 2023, Cobblestone identified
`
`the same Samsung products as Accused Instrumentalities for the ’802 patent in the Second
`
`Carrier Actions. E.g., Ex. 2 (excerpt of Cobblestone’s Preliminary Disclosure of Asserted
`
`Claims and Infringement Contentions to Verizon) at pg. 2.
`
`2
`
`IPR2024-00137
`Petitioners' Ex. 1236
`Ex. 1236.00004
`
`

`

`Cobblestone’s Discovery Efforts in the Carrier Cases. On July 18, 2023,
`
`Cobblestone noticed a subpoena in the First Carrier Actions to Samsung America, and
`
`served an amended notice on July 19, 2023. Dkt. 43-2 (“Cobblestone’s Subpoenas”).
`
`Cobblestone’s Subpoenas in the First Carrier Actions were only directed to Samsung
`
`America; Samsung was not subpoenaed or even referenced in Cobblestone’s Subpoenas.
`
`There can be no question that Cobblestone understands and appreciates the distinction
`
`between Samsung and Samsung America: Cobblestone’s lead counsel, Reza Mizraie, has
`
`been adverse
`
`to Samsung Electronics Co.
`
`in 91 disputed proceedings. See,
`
`https://search.docketnavigator.com/patent/attorney/90097/2 (search of attorney: Reza
`
`Mizraie, filtered for “Samsung Electronics Co., last accessed March 6, 2024). 2
`
`In the Second Carrier Actions, Cobblestone only attempted to subpoena Samsung
`
`America on February 13, 2024. Dkt. 43-5. Cobblestone has not filed motions for Hague
`
`discovery on Samsung in any of the Carrier Actions. And finally, Cobblestone has not
`
`moved to compel either Samsung America or Samsung to comply with any duly issued
`
`subpoena in any Carrier Action.
`
`Relevant Timing. To better understand the posture of Cobblestone’s Motion—
`
`including its suggestion that its requested relief was unforeseeable at the time of the entry
`
`of the Protective Order in the Samsung Action—the below timeline displays relevant dates:
`
`
`2 Indeed, the first time Cobblestone appears to have directed any attempt at discovery to
`the foreign SEC entity in any Carrier Action was when these issues were all coming to a
`head in January 2024, nearly seven months after its original discovery requests to SEA.
`At that time, Cobblestone gave notice of its intent to serve a facially defective Rule 45
`subpoena on the foreign SEC entity.
`
`3
`
`IPR2024-00137
`Petitioners' Ex. 1236
`Ex. 1236.00005
`
`

`

`ARGUMENT
`
`I.
`
`COBBLESTONE’S PROPOSED RELIEF IS INAPPROPRIATE AND
`EXTREMELY PREJUDICIAL TO THE CARRIER DEFENDANTS.
`
`Cobblestone’s requested relief is an attempt to backdoor evidence into the Carrier
`
`Actions from a foreign non-party. Even more troubling is the fact that Cobblestone’s
`
`proposed relief—language stating that Cobblestone “may produce” Samsung evidence in
`
`the Carrier Actions—would allow it to cherry-pick the documents and source code it wants
`
`produce in the Carrier Actions while simultaneously preventing the Carrier Defendants
`
`from accessing exculpatory evidence, participating in depositions, or otherwise engaging
`
`in the discovery against Samsung.
`
`A.
`
`Cobblestone Attempts to Circumvent the Rules of Discovery
`
`If Cobblestone wants discovery from Samsung America or Samsung in the Carrier
`
`Actions, there is a way to seek it: discovery via the proper channels of Federal Rule of Civil
`
`Procedure 45 and the Hague Evidence Convention. But Cobblestone did not even attempt
`
`to seek Hague discovery from Samsung in Korea in the Carrier Actions. Instead, it appears
`
`that, at best, it approached Samsung America’s counsel to inquire whether a separate
`
`foreign corporate entity would waive service of a Rule 45 subpoena. And with respect to
`
`discovery from Samsung America, Cobblestone issued a subpoena in the Carrier Actions
`
`4
`
`IPR2024-00137
`Petitioners' Ex. 1236
`Ex. 1236.00006
`
`

`

`and is receiving the discovery it requested, so there is no need to dump documents produced
`
`by Samsung America in the Samsung Action into the Carrier Actions.
`
`By attempting to introduce evidence it procured without the proper service of a
`
`Rule 45 subpoena on SEC as a foreign entity or Hague discovery, Cobblestone essentially
`
`vitiates the protections afforded to the Carrier Defendants by the rules. These rules of
`
`discovery which Cobblestone now attempts to circumvent are not merely formulaic. The
`
`Carrier Defendants have been given no opportunity to object or otherwise monitor the
`
`discovery efforts in the Samsung Action, and the Carrier Defendants’ understanding is that
`
`the late-breaking Rule 45 subpoena to the foreign SEC entity is facially flawed from the
`
`start. Cobblestone should not be permitted to avoid its obligations under Rule 45 and the
`
`Hague Evidence convention in this way.
`
`Cobblestone’s Motion attempts to justify its relief by invoking “the difficulties
`
`Cobblestone has faced in obtaining discovery in the Carrier Actions,” but it provides no
`
`indication of what those difficulties are. Motion at 2. Cobblestone also suggests that its
`
`requested relief would reduce or eliminate “discovery disputes related to Samsung’s
`
`(non)compliance with the subpoenas in the Carrier Actions.” Id. at 12. The facts indicate
`
`that there are no “difficulties.” Cobblestone has not sought the Court’s assistance in
`
`enforcing the subpoena against Samsung America in the Carrier Actions. If there are
`
`“difficulties” in obtaining discovery in the Carrier Actions, Cobblestone should bring a
`
`motion to resolve those issues in those cases. And with respect to Samsung, there do not
`
`appear to be any properly served subpoenas or motions for Hague discovery in the Carrier
`
`Actions, so
`
`there cannot be any “discovery disputes
`
`related
`
`to Samsung’s
`
`(non)compliance” with facially defective subpoenas. Failing to even try to get Hague
`
`5
`
`IPR2024-00137
`Petitioners' Ex. 1236
`Ex. 1236.00007
`
`

`

`discovery against Samsung in Korea is not a “difficulty,” and Samsung’s alleged
`
`“(non)compliance” with a facially defective subpoena is not a basis for shortcutting the
`
`rules.
`
`There is no reason why Cobblestone could not have sought discovery from
`
`Samsung via the Hague Evidence convention, and Cobblestone does not offer any reason.
`
`There is also no reason why it cannot use Rule 45 to obtain all necessary discovery from
`
`Samsung America in the Carrier Actions, and Cobblestone does not offer any reason.
`
`Cobblestone was either (1) negligent in pursuing discovery against Samsung in the Carrier
`
`Actions, or (2) decided that the easier route was to sue Samsung in order to obtain party
`
`discovery with the goal of porting the discovery into the Carrier Actions. The Court need
`
`not resolve why Cobblestone found itself in this position, however, as neither provides a
`
`basis for gifting Cobblestone a discovery shortcut.
`
`B.
`
`Cobblestone’s Proposal Is Extremely Prejudicial to the Carrier
`Defendants
`
`Cobblestone wants to dump documents of its own choosing into the Carrier Actions
`
`to be used against the Carrier Defendants to attempt to prove liability and (undoubtedly)
`
`demand huge damages. The relief Cobblestone seeks is highly prejudicial to the Carrier
`
`Defendants.
`
`Cobblestone’s requested relief is as follows: “Documentary discovery and source
`
`code discovery produced or made available by Samsung in this case may be produced by
`
`Cobblestone” in the Carrier Actions. Motion at 12 (emphasis added). In other words,
`
`Cobblestone wants to be able to procure discovery from Samsung and produce whatever
`
`evidence helps its case, while the Carrier Defendants cannot see, access, or participate in
`
`any of the discovery that Cobblestone does not deem worthy of producing in the Carrier
`
`6
`
`IPR2024-00137
`Petitioners' Ex. 1236
`Ex. 1236.00008
`
`

`

`Actions. The Carrier Defendants (and the Intervenors) do not have access to any of the
`
`“documentary discovery and source code discovery” in the Samsung Action and, frankly,
`
`nor should they; it is inappropriate for a set of defendants and intervenors in one case to
`
`gain wholesale access to competitor/supplier discovery in another case.
`
`This is exactly the kind of one-sided discovery that Rule 45, the Hague Evidence
`
`convention, and the protective orders regularly issued by this Court, are meant to avoid.
`
`Cobblestone wants to take months to propound its own discovery requests on Samsung and
`
`Samsung America, sift through their responsive productions, review source code at its
`
`leisure, depose witnesses, and then, when the mood strikes Cobblestone, it “may” produce
`
`the allegedly incriminatory evidence it now claims it needs in the Carrier Actions – with
`
`no commitment to include exculpatory evidence. The Carrier Defendants and Intervenors
`
`would then be left to deal with the consequences of the discovery that Cobblestone deigned
`
`to produce in the Carrier Actions. This type of “stealth discovery” is antithetical to the
`
`pursuit of the truth, and precisely why the normal rules of discovery contemplate that
`
`discovery is conducted in the open as between parties.
`
`Cobblestone does not even attempt to address the prejudice to the Carrier
`
`Defendants, despite knowing that the Carrier Defendants object to its proposed relief. 3 The
`
`word “prejudice” only appears once in Cobblestone’s Motion in the context of the
`
`discussion of “the lack of harm or prejudice to Samsung.” Motion at 2.4 But Samsung is
`
`
`3
`Cobblestone’s characterization of the Carrier’s objection as “unfair” is, to put it
`mildly, an oversimplification. During the meet-and-confer, the Carrier Defendants
`expressed why the request was unfair. Cobblestone ignored those issues in its Motion.
`4
`The Carrier Defendants understand that Samsung and Samsung America will be
`responding separately regarding the prejudice risked by the exposure of their confidential
`information to the various parties in the Carrier Actions.
`
`7
`
`IPR2024-00137
`Petitioners' Ex. 1236
`Ex. 1236.00009
`
`

`

`not the only party prejudiced by Cobblestone’s requested relief. The Carrier Defendants
`
`would be irreparably prejudiced by Cobblestone’s proposed evidentiary cherry-picking. 5
`
`II.
`
`COBBLESTONE’S POSITION IS INCONSISTENT WITH ITS
`OPPOSITION TO CONSOLIDATION
`
`As outlined above, Cobblestone has filed numerous cases against the Carrier
`
`Defendants and Samsung relating to the same products and the same patents. In fact,
`
`Cobblestone repeatedly invokes the overlap as a basis for its requested relief:
`
`
`
` “the efficiencies in permitting Cobblestone to produce and rely on the same
`documentary and source code discovery provided to Cobblestone by
`Samsung in this Samsung Action…” Motion at 2.
`
` “Cobblestone filed complaints in the United States District Court for the
`Eastern District of Texas giving rise to the following patent infringement
`actions asserting the same patents at issue in this case…” Id. at 3.
`
` “The patents asserted against Samsung in this case are the same patents
`asserted in the Carrier Actions.” Id. at 6.
`
` “Good cause exists because the patents asserted in this case against
`Samsung are the same patents asserted against the carrier defendants in the
`Carrier Actions. Good cause further exists because the Samsung mobile
`devices and base stations at issue in this case are the same Samsung
`products at issue in the Carrier Actions.” Id. at 11 (emphasis in original).
`
`The irony in Cobblestone’s arguments, however, is that when faced with a motion
`
`to consolidate the First Carrier Actions with the Second Carrier Actions, Cobblestone
`
`opposed because of what it believes to be numerous differences between those cases. Dkt.
`
`No. 98 in Case No. 2:22-cv-477 at 7. In fact, Cobblestone goes so far as to argue that
`
`“Consolidation Will Not Meaningfully Reduce Duplication and Costs Given That There
`
`
`5
`It is likely that the Court will eventually have to wrestle with the consequences of
`Cobblestone’s proposed relief. The myriad evidentiary issues presented by documents
`obtained outside of the Carrier Actions from a third-party raise numerous hearsay,
`authenticity, and foundational issues that would be raised at the Pretrial Conference.
`
`8
`
`IPR2024-00137
`Petitioners' Ex. 1236
`Ex. 1236.00010
`
`

`

`Are No Overlapping Patent Families and Different Accused Functionalities.” Id. Now,
`
`however, it proposes dumping in cherry-picked evidence into both of those cases based on
`
`efficiency. When presented with the similar possibility of consolidating the Carrier Actions
`
`with the Samsung Action, Cobblestone resists that as well and argues that “Defendants
`
`miss the point” and “Defendants have not specifically identified any common issues or
`
`theories.” Dkt. No. 100 in Case No. 2:22-cv-477 at 4. This argument cannot be reconciled
`
`with its theory in the instant Motion that it can and in fact must avoid the obligations of
`
`third party discovery so it can cherry-pick discovery from the Samsung Actions to include
`
`in the Carrier Actions “because the patents asserted in this case against Samsung are the
`
`same patents asserted against the carrier defendants in the Carrier Actions…[and] because
`
`the Samsung mobile devices and base stations at issue in this case are the same Samsung
`
`products at issue in the Carrier Actions.” Motion at 11 (emphasis in original).
`
`Cobblestone has had numerous opportunities to consolidate its multiple pending
`
`actions in ways that make sense, are fair, and protect the interests of all defendants in all
`
`actions. It has repeatedly and consistently opposed such efforts – it should be held to its
`
`positions now.
`
`III. THIS IS A MESS OF COBBLESTONE’S OWN MAKING
`
`While it is true that a plaintiff can elect who it wants to sue and when, that does not
`
`entitle it to create a procedural mess. For months, the Carrier Defendants have advocated
`
`for reorganizing the cases in a manner that is most efficient for the parties and the Court.
`
`The Carrier Defendants have also pointed out that the posture of the cases presents a
`
`significant risk of impermissible double recovery with respect to the Samsung products.
`
`Cobblestone has resisted explaining how its serial lawsuits do not create risk of a potential
`
`double recovery while insisting that all cases must proceed on separate tracks. Now,
`
`9
`
`IPR2024-00137
`Petitioners' Ex. 1236
`Ex. 1236.00011
`
`

`

`however, Cobblestone seems to believe that it must upend the protective order in the
`
`Samsung Action so that it can dump self-serving evidence into the Carrier Actions without
`
`permitting the Carrier Defendants access to exculpatory evidence. None of this is
`
`necessary; this entire situation could have been avoided if Cobblestone either conducted
`
`timely discovery via the appropriate mechanisms or agreed to consolidate the cases in a
`
`way that makes sense. The Court does not need to amend a Protective Order that
`
`Cobblestone freely agreed to simply because Cobblestone failed to appreciate the
`
`consequences of its decisions.
`
`CONCLUSION
`
`Cobblestone’s Motion should be denied.
`
`
`
`
`
`
`
`10
`
`IPR2024-00137
`Petitioners' Ex. 1236
`Ex. 1236.00012
`
`

`

`Dated: March 8, 2024
`
`
`
`/s/ David S. Frist
`David S. Frist
`David.Frist@alston.com
`ALSTON & BIRD LLP
`1201 West Peachtree Street NW
`Atlanta, GA 30309
`404-881-7000
`Fax: 404-881-7777
`
`Ross Ritter Barton
` Ross.Barton@alston.com
`ALSTON & BIRD LLP
`1120 South Tryon Street
`Suite 300
`Charlotte, NC 28203
`704-444-1287
`Fax: 704-444-1111
`
`Theodore Stevenson, III
` Ted.Stevenson@alston.com
`ALSTON & BIRD LLP
`2200 Ross Ave
`Suite 2300
`Dallas, TX 75201
`214-922-3507
`Fax: 214-922-3899
`
`Attorneys for AT&T Services, Inc.,
`AT&T Corp., AT&T Mobility LLC,
`T-Mobile USA, Inc., and Cellco
`Partnership d/b/a Verizon Wireless,
`
`Deron Dacus
`ddacus@dacusfirm.com
`The Dacus Firm
`821 ESE Loop 323, Suite 430
`Tyler, TX 75701
`903-705-1117
`Fax: 903-581-2543
`
`Attorney for AT&T Services, Inc.,
`AT&T Corp., AT&T Mobility LLC,
`Cellco Partnership d/b/a Verizon
`Wireless
`
`
`11
`
`IPR2024-00137
`Petitioners' Ex. 1236
`Ex. 1236.00013
`
`

`

`Melissa R. Smith
`melissa@gillamsmithlaw.com
`Tom Gorham
`tom@gillamsmithlaw.com
`Gillam & Smith LLP
`102 N. College, Suite 800
`Tyler, TX 75702
`903-934-8450
`Fax: 903-934-9257
`
`Attorneys for T-Mobile USA, Inc.
`
`
`
`
`
`
`
`
`12
`
`IPR2024-00137
`Petitioners' Ex. 1236
`Ex. 1236.00014
`
`

`

`CERTIFICATE OF SERVICE
`
`I hereby certify that a true and correct copy of the above and foregoing document
`
`has been served on March 8, 2024, on the counsel of record via electronic mail.
`
`/s/ David S. Frist
`David S. Frist
`
`13
`
`IPR2024-00137
`Petitioners' Ex. 1236
`Ex. 1236.00015
`
`