Case 2:15-cv-01274-JRG-RSP Document 55 Filed 12/22/15 Page 1 of 15 PageID #: 389
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`JOINT MOTION FOR ENTRY OF OPPOSED DISCOVERY ORDER
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`Pursuant to the Court’s Order of November 2, 2015 (Dkt. 29), Plaintiff and Defendants
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`Case No. 2:15-cv-01274-JRG-RSP
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`JURY TRIAL DEMANDED
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`LEAD CASE
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`BLITZSAFE TEXAS, LLC,
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`Plaintiff,
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`v.
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`HONDA MOTOR CO., LTD., ET AL,
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` Defendants.
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`submit competing forms of Proposed Discovery Order. Plaintiff’s Proposed Discovery Order is
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`attached as Exhibit 1 and Defendants’ Proposed Discovery Order is attached as Exhibit 2. The
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`Parties were able to reach agreement on almost all provisions of the Discovery Order, but two
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`provisions remain in dispute: (1) limits on party depositions (section 5(d)); and (2) the total time
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`that Defendants may collectively depose the inventor of the patents-in-suit in his individual
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`capacity (section 5(e)).
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`I.
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`Party Depositions (Section 5(d))
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`A.
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`Plaintiff’s Position
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`Plaintiff proposes to depose each Defendant (defined in section 5(a) as a group of
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`defendants separately accused of infringement) for 50 hours. This total deposition time for each
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`group of defendants is 20 hours less than would be permitted under the Federal Rules of Civil
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`Procedure (which allows for 10 depositions of up to 7 hours each under Rule 30(a)(2)(A)(i)) for
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`Case 2:15-cv-01274-JRG-RSP Document 55 Filed 12/22/15 Page 2 of 15 PageID #: 390
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`each individual defendant. Fifty hours of deposition time is necessary because Plaintiff will need
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`to explore numerous issues in depositions, including identification and development of the
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`accused products, technical aspects and functionality of the accused products, identification of
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`the entities that make and import the accused products, sales and marketing of the accused
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`products (relevant to damages and obviousness), revenues and costs generated by the accused
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`products, knowledge of the patents-in-suit, and identification and locations of relevant
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`documents and electronically stored information.
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`This discovery will be substantial because each Defendant sells accused automobile
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`infotainment systems that are found in multiple makes and models of millions of automobiles
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`sold over a period of several years. For example, one Defendant, Toyota, is believed to sell at
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`least thirteen models of Toyota automobiles since as early as the 2010 model year, and at least 10
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`models of Lexus automobiles since as early as the 2009 model year, that contain infotainment
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`systems accused of infringing the patents-in-suit. Although these infotainment systems are
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`believed to share common functionality relevant to the patents-in-suit, there are potentially over
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`100 iterations of infotainment systems for each Defendant into which Plaintiff will need
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`depositions from multiple witnesses in order to prove its case.
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`Plaintiff is unlikely to realize significant efficiencies in discovery that will minimize
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`deposition time because the Defendants do not appear to make or sell common accused products.
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`Based on its research to date, which includes purchasing and tearing down infotainment systems,
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`the structure and components of the accused infotainment systems vary from Defendant to
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`Defendant. Moreover, each Defendant will also have unique information concerning
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`manufacturing, sales and marketing, revenues and costs, knowledge of the patents-in-suit, and
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`storage of relevant documents and electronically stored information. Therefore, Plaintiff’s
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`Case 2:15-cv-01274-JRG-RSP Document 55 Filed 12/22/15 Page 3 of 15 PageID #: 391
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`depositions of Defendants will have little substantive overlap. Defendants’ argument that
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`Plaintiff is seeking 250 hours of depositions is obviously misleading, as no Defendant would be
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`subject to more than 50 hours, nor would any Defendant be required to attend any other
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`Defendant’s depositions.
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`Defendants’ proposal that depositions of Defendants be limited to 28 hours is unrealistic
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`given the scope and complexity of this case, and their argument that a typical patent case
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`involves one day of 30(b)(6) depositions directed to infringement is baseless and contrary to
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`practical experience. For example, the likelihood that each Defendant will designate a single
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`witness who will be able to testify in a single day regarding all of the technical aspects of the
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`dozens of accused infotainment systems sold by a Defendant in two separate products lines in
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`each case (e.g., Honda and Acura in the Honda case, Volkswagen and Audi in the Volkswagen
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`case, etc.), is remote at best. At minimum, Plaintiff expects that two to three days of depositions
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`will be necessary solely to explore the technical aspects of the accused products.
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` Defendants’ proposal to afford themselves 28 hours to depose the Plaintiff in the name
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`of “proportionality” is specious. While the Defendants are all far-flung, multi-billion dollar
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`conglomerates with thousands of employees, Plaintiff is a small company with a single
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`employee, Ira Marlowe, its principal and the inventor of the patents-in-suit. By Defendants’ own
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`admission that 28 total hours of depositions of a party should be sufficient, Defendants should
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`require only 14 hours of deposition time of Plaintiff and 14 hours of individual time with Mr.
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`Marlowe as the inventor. Instead, Defendants seek 28 hours of party depositions and, as set
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`forth below, 21 additional hours with Mr. Marlowe personally. Therefore, Defendants’ idea of
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`proportionality is to depose Plaintiff for 49 hours while each Defendant is required to give only
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`28 hours of depositions. By Defendants’ analysis, 21 hours of depositions of Plaintiff, above and
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`Case 2:15-cv-01274-JRG-RSP Document 55 Filed 12/22/15 Page 4 of 15 PageID #: 392
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`beyond the personal deposition of Mr. Marlowe, is more than sufficient to meet Defendants’
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`discovery needs.
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`Accordingly, Plaintiff respectfully requests that the Court allow it to take 50 hours of
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`depositions per Defendant, and permit Defendants to collectively depose Plaintiff for 21 hours.
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`B.
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`Defendants’ Position
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`Plaintiff seeks to limit five defendant groups to a total of 21 hours of deposition time of
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`plaintiff, while demanding a total of 250 hours with defendants’ witnesses. Plaintiff’s demand is
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`unreasonable and unduly burdensome for the defendants. The defendants propose a reciprocal
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`limitation on party depositions of 28 hours:
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`Plaintiff may take up to 28 total hours of deposition testimony
`(inclusive of both 30(b)(1) and 30(b)(6) depositions) of each
`Defendant. The Defendants collectively may take up to 28 hours of
`deposition testimony of plaintiff (inclusive of both 30(b)(1) and
`30(b)(6) depositions).
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`This 28-hour proposal gives plaintiff, for example, two full days of Rule 30(b)(6) testimony, i.e.,
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`one day on liability and one day on damages which is customary in patent cases, plus an
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`additional 14 hours for individual depositions, if necessary. And, of course, the plaintiff can
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`always request more deposition time in the unlikely event the 28-hour limit is reached.
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`Plaintiff has not provided any reason why 28 hours with each defendant would be
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`insufficient, let alone any justification for subjecting each defendant to 50 hours of deposition
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`time, which converts to over seven full days of depositions of each defendant for a total of over
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`35 days of depositions. Instead, plaintiff simply claims to be entitled to 70 hours per defendant
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`under the federal rules. In a consolidated case such as this one, however, plaintiff is limited to
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`10 depositions total under Rule 30(a)(2)(A)(i) (“A party must obtain leave of court…[if] the
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`deposition would result in more than 10 depositions being taken under this rule or Rule 31 by the
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`plaintiffs….”), and, in any event, 250 hours of deposition time in a case with only two patents
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`Case 2:15-cv-01274-JRG-RSP Document 55 Filed 12/22/15 Page 5 of 15 PageID #: 393
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`does not meet the revised federal rules’ proportionality requirement: “Rule 30 is amended in
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`parallel with Rules 31 and 33 to reflect the recognition of proportionality in Rule 26(b)(1).”
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`Advisory Committee Notes to 2015 Amendment of Rule 30.
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`The information that plaintiff seeks – identification and development of the accused
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`products, technical aspects of the accused products, identification of the entities that make and
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`import the accused products, sales and marketing of the accused products, revenues and costs
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`generated by the accused products, knowledge of the patents-in-suit, and identification and
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`locations of relevant documents and electronically stored information – is routinely covered by
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`document productions and two Rule 30(b)(6) depositions (on liability and damages). There is no
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`need for “multiple witnesses”, as plaintiff contends, when a Rule 30(b)(6) deposition is available.
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`Plaintiff claims that defendants’ proposal “is unrealistic given the scope and complexity of this
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`case”; however, plaintiff fails to explain why this case, involving only two patents, has an
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`exceptionally large scope. Furthermore, the burden on each defendant associated with plaintiff’s
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`plan to depose “multiple witnesses” for up to 50 hours would outweigh any likely benefit.
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`Plaintiff states that two to three days of depositions will be necessary to explore technical
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`issues, but plaintiff is demanding over seven days of depositions for each defendant and does not
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`provide any reasonable justification for the additional four to five days of depositions. Plaintiff
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`claims that it is “remote” that defendants, such as VW/Audi, would designate a single witness
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`able to testify in a single day regarding all of the technical aspects the accused infotainment
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`systems. But VW/Audi have often done exactly that in other cases related to its infotainment
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`systems, without complaint from the plaintiffs, and there are only two patents-in-suit in this case,
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`four accused systems, and significant overlap in technology amongst the accused vehicles, all of
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`which is demonstrated by the document productions. In other similar cases with several more
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`Case 2:15-cv-01274-JRG-RSP Document 55 Filed 12/22/15 Page 6 of 15 PageID #: 394
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`patents, the parties, including the plaintiff, agreed that 28 hours of deposition time was sufficient.
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`See, e.g., Norman IP Holdings, LLC, v. Lexmark International, Inc., et al., Case 6:11-cv-00495-
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`LED, D.I. 268 filed 09/06/12 (“Plaintiff may take up to 7 hours of Rule 30(b)(6) depositions on
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`liability per defendant and 7 hours of Rule 30(b)(6) depositions on damages per defendant, with
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`an additional 14 hours of Rule 30(b)(1) depositions of individual party witnesses per
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`defendant.”). Regarding party depositions of plaintiff, plaintiff insists that Mr. Marlowe would
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`be the sole witness, but defendants have no way of knowing if this is true or if there are other
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`employees of plaintiff who should be deposed; there is no reason for the deposition limits not to
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`be reciprocal.
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`In sum, plaintiff’s demand for 250 hours for its side while limiting defendants to 21 hours
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`is unfairly disproportionate, unreasonable, and unsupportable, and should be rejected in favor of
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`defendants’ reciprocal 28-hour proposal.
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`II.
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`Inventor Deposition Time (Section 5(e))
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`A.
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`Plaintiff’s Position
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`Plaintiff proposes that the Defendants may collectively depose the inventor of the
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`patents-in-suit for up to 10 hours. This time limit is sufficient because topics unique to the
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`inventor, such as the conception and reduction to practice of the claimed inventions and the
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`prosecution of the patent applications, are identical for all Defendants. In addition, the two
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`patents-in-suit are members of the same family and share much of the same specification,
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`reducing the time needed to explore those patents at deposition. Plaintiff’s proposal of 21 hours
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`(three full days under the Federal Rules) is overkill and would result in the inventor being
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`subjected to duplicative questioning by multiple Defendants.
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`Case 2:15-cv-01274-JRG-RSP Document 55 Filed 12/22/15 Page 7 of 15 PageID #: 395
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`It should be noted that the inventor, Ira Marlowe, is also the principal of Plaintiff and
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`likely will be designated as Plaintiff’s representative to testify under Rule 30(b)(6) for a variety
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`of topics that are typically addressed by a corporate representative. As such, Defendants will
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`have additional time to depose Mr. Marlowe under the agreed portions of the Discovery Order,
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`bringing his possible total deposition time to 49 hours under Defendants’ proposal, an excessive
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`sum.
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`Defendants support their request for 21 hours of inventor depositions with copies of
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`motions filed by different attorneys on behalf of a different car company in a prior lawsuit.
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`Those motions allege facts that Defendants do not contend are true, which have not been pleaded
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`by any Defendant in this case, and are clearly intended to prejudice Plaintiff. The improperly
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`styled “Motion for Sanctions” was a premature motion for summary judgment of invalidity that
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`was denied by the court. The Motion for Leave to Amend the Answer was never addressed by
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`the court. It is improper for Defendants to attempt to support an application to this Court for
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`relief in this case with an unrelated party’s pleadings in a different case which have no bearing
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`on any claim or defense of Defendants. Should Defendants uncover information in the course of
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`discovery which they believe necessitates additional deposition time, the application should be
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`made at that time. Otherwise, based on the facts actually of record, 10 hours of deposition time
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`of Mr. Marlowe is more than sufficient.
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`Accordingly, Plaintiff respectfully requests that the Court permit the Defendants to
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`depose the inventor in his individual capacity for no more than 10 hours.
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`B.
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`Defendants’ Position
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`Defendants are seeking 21 deposition hours of the named inventor, Ira Marlowe, of both
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`patents-in-suit:
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`Case 2:15-cv-01274-JRG-RSP Document 55 Filed 12/22/15 Page 8 of 15 PageID #: 396
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`Inventor Depositions: The Defendants as a group will be limited to
`21 deposition hours of the named inventor in his individual
`capacity (excluding deposition time as a 30(b)(6) witness, if any).
`Fact deposition testimony of the inventor is exclusive of any time
`the inventor spends testifying as either a designated party witness
`or expert witness.
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`There are five separate defendant groups in the case, which leaves only two hours per defendant
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`under plaintiff’s 10 hour limit. Under defendants’ proposal, each defendant group has 4.8 hours
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`of deposition time, which is more reasonable, especially given that more than one patent is being
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`asserted.
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`In addition to the standard issues, this case raises at least three additional issues of
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`inequitable conduct, inventorship, and spoliation. For example, in Marlowe Patent Holdings,
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`LLC v. Ford Motor Company, 2:11-cv-07044 (D. NJ), Ford raised the issue of whether Mr.
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`Marlowe began selling devices embodying his purported invention years before filing his patent
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`application with the U.S. Patent Office ("USPTO"). See Defendant Ford Motor Company's
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`Motion for Rule 11 Sanctions, Marlowe Patent Holdings, LLC v. Ford Motor Company, 2:11-cv-
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`07044 (D. NJ) (filed June 10, 2013) at page 2 (attached at Exhibit 3). Ford also raised the
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`question of inventorship of the ‘786 patent. For example, Ford alleged that Edward Fischer, a
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`New Jersey engineer who previously worked for Blitzsafe of America Inc. conceived and
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`developed the purported invention of the ‘786 patent almost two years before the filing date of
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`the ‘786 patent. See Defendant Ford Motor Company’s Brief in Support of Its Motion to Amend
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`its Answer and Counterclaims, Marlowe Patent Holdings, LLC v. Ford Motor Company, 2:11-
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`cv-07044 (D. NJ) (filed March 11, 2015) at page 1 (attached at Exhibit 4). In Ford’s Motion for
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`Rule 11 Sanctions, Ford also raised the issue of spoliation of evidence. Ford alleged that
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`Marlowe acknowledged that various Blitzsafe interfaces had been previously sold, but that
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`documents pertaining to early Blitzsafe interfaces “were destroyed in a ‘flood,’” and that early
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`Case 2:15-cv-01274-JRG-RSP Document 55 Filed 12/22/15 Page 9 of 15 PageID #: 397
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`computer files on the Blitzsafe interfaces “were destroyed in an ‘unrecoverable’ computer
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`failure.” See Brief In Support of Defendant Ford Motor Company’s Motion for Rule 11
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`Sanctions, Marlowe Patent Holdings, LLC v. Ford Motor Company, 2:11-cv-07044 (D. NJ)
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`(filed June 10, 2013) at page 11 (see Exhibit 3).
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`In view of the numerous issues and defendants in this case, defendants’ proposed limit of
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`21 hours is more reasonable than plaintiff’s 10 hour limit.
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`Respectfully Submitted,
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`BROWN RUDNICK LLP
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` /s/ Peter Lambrianakos___________
`Alfred R. Fabricant
`Texas Bar No. 2219392
`afabricant@brownrudnick.com
`Lawrence C. Drucker
`ldrucker@brownrudnick.com
`Texas Bar No. 2303089
`Peter Lambrianakos
`Texas Bar No. 2894392
`plambrianakos@brownrudnick.com
`BROWN RUDNICK LLP
`7 Times Square
`New York, NY 10036
`Telephone: (212) 209-4800
`Facsimile: (212) 209-4801
`
`Samuel F. Baxter
`Texas State Bar No. 01938000
`sbaxter@mckoolsmith.com
`Jennifer L. Truelove
`Texas State Bar No. 24012906
`jtruelove@mckoolsmith.com
`MCKOOL SMITH, P.C.
`104 E. Houston Street, Suite 300
`Marshall, Texas 75670
`Telephone: (903) 923-9000
`Facsimile: (903) 923-9099
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`ATTORNEYS FOR PLAINTIFF BLITZSAFE
`TEXAS, LLC
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`9
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`Dated: December 22, 2015
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`Case 2:15-cv-01274-JRG-RSP Document 55 Filed 12/22/15 Page 10 of 15 PageID #: 398
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`/s/ Joseph M. Beauchamp________
`Joseph M. Beauchamp
`Texas State Bar No. 24012266
`jbeauchamp@jonesday.com
`H. Albert Liou
`Texas State Bar No. 24061608
`aliou@jonesday.com
`Erin C. Dickerman
`edickerman@jonesday.com
`JONES DAY
`717 Texas Street, Suite 3300
`Houston, Texas 77002-2712
`Telephone: (832) 239-3939
`Facsimile: (832) 239-3600
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`Joseph Melnik
`California State Bar No. 255601
`jmelnik@jonesday.com
`JONES DAY
`1755 Embarcadero Road
`Palo Alto, California 94303
`Telephone: (650) 739-3939
`Facsimile: (650) 739-3900
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`Randy Akin
`Texas State Bar No. 00954900
`gra@randyakin.com
`G.R. (RANDY) AKIN, P.C.
`3400 W. Marshall Avenue, Suite 300
`Longview, Texas 75604
`Telephone: (903) 297-8929
`Facsimile: (903) 297-9046
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`ATTORNEYS FOR DEFENDANTS
`AMERICAN HONDA MOTOR CO., INC.,
`HONDA OF AMERICA MFG., INC., HONDA
`MANUFACTURING OF ALABAMA, LLC,
`and HONDA MANUFACTURING OF
`INDIANA, LLC
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`10
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`Case 2:15-cv-01274-JRG-RSP Document 55 Filed 12/22/15 Page 11 of 15 PageID #: 399
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`_/s/ Paul R. Steadman_________
`Paul R. Steadman
`Illinois Bar No. 6238160
`paul.steadman@dlapiper.com
`Matthew D. Satchwell
`Illinois Bar No. 6290672
`matthew.satchwell@dlapiper.com
`DLA PIPER LLP
`203 N. LaSalle St., Suite 1900
`Chicago, IL 60601-1293
`Telephone: 312.368.2111
`Facsimile: 312.236.7516 –
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`Jeffrey L. Johnson
`Texas Bar No. 24029638
`jeffrey.johnson@dlapiper.com
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`DLA PIPER LLP
`1000 Louisiana, Suite 2800
`Houston, Texas 77002
`Telephone: (713) 425-8445
`Facsimile: (713) 300-6045
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`Patrick S. Park
`California Bar No. 246348
`patrick.park@dlapiper.com
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`DLA PIPER LLP
`20000 Avenue of the Stars, Suite 400
`North Tower
`Los Angeles, CA 90067
`Telephone: 310.595.3000
`Facsimile: 310.595.3300
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`ATTORNEYS FOR DEFENDANTS HYUNDAI
`MOTOR AMERICA, HYUNDAI MOTOR
`MANUFACTURING ALABAMA, LLC, KIA
`MOTORS AMERICA, INC., and KIA
`MOTORS MANUFACTURING GEORGIA,
`INC.
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`11
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`Case 2:15-cv-01274-JRG-RSP Document 55 Filed 12/22/15 Page 12 of 15 PageID #: 400
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`_/s/ Sean N. Hsu_____________
`Jeffrey S. Patterson
`Texas Bar No. 15596700
`jpatterson@hdbdlaw.com
`Sean N. Hsu
`Texas Bar No. 24056952
`shsu@hdbdlaw.com
`Theresa M. Dawson
`Texas Bar No. 24065128
`tdawson@hdbdlaw.com
`HARTLINE DACUS BARGER DREYER LLP
`8750 North Central Expressway
`Suite 1600
`Dallas, Texas 75231
`Telephone: (214) 369-2100
`Facsimile: (214) 369-2118
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`ATTORNEYS FOR DEFENDANTS
`NISSAN NORTH AMERICA, INC. and
`NISSAN MOTOR CO., LTD.
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`12
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`Case 2:15-cv-01274-JRG-RSP Document 55 Filed 12/22/15 Page 13 of 15 PageID #: 401
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`_/s/ Brian K. Shelton_________
`J. Thad Heartfield
`Texas Bar No. 09346800
`thad@heartfieldlawfirm.com
`THE HEARTFIELD LAW FIRM
`2195 Dowlen Road
`Beaumont, TX 77706
`Telephone: (409) 866-3318
`Facsimlie: (409) 866-5789
`
`William H. Mandir (pro hac vice)
`wmandir@sughrue.com
`John F. Rabena (pro hac vice)
`jrabena@sughrue.com
`Brian K. Shelton (pro hac vice)
`bshelton@sughrue.com
`Fadi N. Kiblawi (pro hac vice)
`fkiblawi@sughrue.com
`Margaret M. Welsh (pro hac vice)
`mwelsh@sughrue.com
`SUGHRUE MION PLLC
`2100 Pennsylvania Avenue, NW
`Washington, DC 20037
`Telephone: (202) 293-7600
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`ATTORNEYS FOR DEFENDANTS TOYOTA
`MOTOR CORPORATION, TOYOTA MOTOR
`SALES U.S.A., INC., TOYOTA MOTOR
`MANUFACTURING, TEXAS, INC., TOYOTA
`MOTOR MANUFACTURING KENTUCKY,
`INC., and TOYOTA MOTOR
`MANUFACTURING MISSISSIPPI, INC.
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`13
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`Case 2:15-cv-01274-JRG-RSP Document 55 Filed 12/22/15 Page 14 of 15 PageID #: 402
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`__/s/ Deron R. Dacus____________
`Deron R. Dacus
`Texas State Bar No. 00790553
`ddacus@dacusfirm.com
`Peter A. Kerr
`pkerr@dacusfirm.com
`Texas Bar No. 24076478
`THE DACUS FIRM, P.C.
`821 ESE Loop 323
`Suite 430
`Tyler, TX 75701
`Telephone: (903) 705-1117
`Facsimile: (903) 705-1117
`
`Michael J. Lennon (pro hac vice)
`mlennon@kenyon.com
`Sheila Mortazavi (pro hac vice)
`smortazavi@kenyon.com
`KENYON & KENYON LLP
`One Broadway
`New York, NY 10004-1007
`Telephone: (212) 425-7200
`Facsimile: (212) 425-5288
`
`Susan A. Smith (pro hac vice)
`ssmith@kenyon.com
`KENYON & KENYON LLP
`1500 K Street, N.W.
`Washington D.C. 20005
`Telephone: (202) 220-4200
`Facsimile: (202) 220-4201
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`ATTORNEYS FOR DEFENDANTS
`VOLKSWAGEN GROUP OF AMERICA, INC.
`and VOLKSWAGEN GROUP OF AMERICA
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`Case 2:15-cv-01274-JRG-RSP Document 55 Filed 12/22/15 Page 15 of 15 PageID #: 403
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`CERTIFICATE OF SERVICE
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`I hereby certify that a true and correct copy of the above and foregoing document has
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`been served on all counsel of record via the Court’s ECF system on December 22, 2015.
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`
` /s/ Peter Lambrianakos
`
`15