Case 2:17-cv-00140-WCB-RSP Document 208 Filed 10/16/18 Page 1 of 7 PageID #: 10174
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`CYWEE GROUP LTD.,
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`Plaintiff
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`v.
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`SAMSUNG ELECTRONICS CO. LTD.
`AND SAMSUNG ELECTRONICS
`AMERICA, INC.,
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`Defendants.
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`NO. 2:17-CV-00140-WCB-RSP
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`DEFENDANTS’ SUR-REPLY TO PLAINTIFF’S MOTION FOR LEAVE TO
`SUPPLEMENT EXPERT REPORTS TO INCLUDE THIRD PARTY DISCOVERY
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`CYWEE GROUP LTD.,
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`Plaintiff
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`v.
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`SAMSUNG ELECTRONICS CO. LTD.
`AND SAMSUNG ELECTRONICS
`AMERICA, INC.,
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`Defendants.
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`NO. 2:17-CV-00140-WCB-RSP
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`DEFENDANTS’ SUR-REPLY TO PLAINTIFF’S MOTION FOR LEAVE TO
`SUPPLEMENT EXPERT REPORTS TO INCLUDE THIRD PARTY DISCOVERY
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`Case 2:17-cv-00140-WCB-RSP Document 208 Filed 10/16/18 Page 2 of 7 PageID #: 10175
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`CyWee’s reply fails to explain its lack of diligence in supplementing its infringement
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`theories, fails to acknowledge the substantial prejudice that would be imposed on Samsung if
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`leave were allowed, and ultimately fails to demonstrate good cause for this supplementation.
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`is also no dispute that CyWee was required to supplement its infringement contentions by late
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`August. CyWee has not provided sufficient justification for why it did not do so.
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`Instead, CyWee’s reply relies on mischaracterizations to distract from and attempt to
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`excuse its unjustified delays.
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` Moreover, CyWee’s belated
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`attempt to inject an entirely new theory of infringement at this late stage of the case would
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`impose substantial prejudice on Samsung. As CyWee has not established good cause for this
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`supplementation, its motion for leave should be denied.
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`I.
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`SAMSUNG HAS NEVER BEEN IN A BETTER POSITION THAN CYWEE TO
`OBTAIN
` SOURCE CODE
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`CyWee argues that Samsung was in a better position than CyWee to obtain
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`source code. That is incorrect.
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`CyWee’s argument is further misleading. Regardless of which party was arguably in a
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`better position to obtain
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` source code in the first place, CyWee received access to
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`-1-
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`Case 2:17-cv-00140-WCB-RSP Document 208 Filed 10/16/18 Page 3 of 7 PageID #: 10176
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` CyWee has still not (and cannot) adequately explain why it did not supplement
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`its infringement contentions by late August as the Court’s schedule required. CyWee places the
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`blame on Samsung, but any blame rests squarely on CyWee.
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`II.
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`CYWEE DID NOT REVIEW
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` SOURCE CODE UNTIL OCTOBER
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`CyWee simply failed to approach the source code discovery process with diligence.
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`-2-
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`Case 2:17-cv-00140-WCB-RSP Document 208 Filed 10/16/18 Page 4 of 7 PageID #: 10177
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`CyWee attempts to shift the blame for its own inaction.
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`. Again, this argument is both incorrect and misleading. As set forth in Samsung’s
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`Motion to Strike (Dkt. No. 187), Samsung’s “representative products” proposal to CyWee was a
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`compromise solution to the problem of CyWee’s unreasonable demand for indexed, extracted
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`versions of the whole phone source code for every accused product, which would have required
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`Samsung to decompress and index thousands of files plainly irrelevant to the subject matter of
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`the litigation. As a compromise, Samsung offered to extract and index the whole phone source
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`code for certain representative products instead.
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`III. CYWEE CANNOT REMEDY THE SUBSTANTIAL PREJUDICE TO SAMSUNG
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`CyWee cannot reasonably dispute the substantial prejudice to Samsung if the proposed
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`supplementation were allowed. CyWee’s reply argues that Samsung is not prejudiced because it
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`-3-
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`Case 2:17-cv-00140-WCB-RSP Document 208 Filed 10/16/18 Page 5 of 7 PageID #: 10178
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`allegedly has “always enjoyed access to
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` code.” As Samsung has explained multiple
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`times, however, that claim is demonstrably incorrect.
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`It is also misleading. Indeed, CyWee does not dispute that its proposed supplementation
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`would assert a fundamentally different theory of infringement than set forth in its original claim
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`charts
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`In addition, CyWee cannot provide any solution for the significant time that Samsung has
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`already lost developing its non-infringement positions based on CyWee’s original infringement
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`theory. Samsung still has not seen the new infringement theory that CyWee would advance if the
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`proposed supplementation is allowed. CyWee does not explain why it should, as the result of its
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`inexcusable delay, have the significant benefit of Samsung’s already-served invalidity report to
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`use to fine tune CyWee’s infringement allegations, while Samsung is left guessing at the precise
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`contours of CyWee’s new theory.
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`A fourth extension in this case (however short) is not warranted and would not remedy
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`the substantial prejudice that would be imposed on Samsung.
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`IV. CONCLUSION
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`CyWee’s reply fails to adequately explain its lack of diligence.
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`, yet CyWee declined to perform an
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`adequate review of that code until October. CyWee likewise cannot provide a solution to remedy
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`the substantial prejudice its inexcusable delay would impose on Samsung. Accordingly, CyWee
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`has failed to demonstrate the requisite good cause and its Motion should be denied.
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`-4-
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`Case 2:17-cv-00140-WCB-RSP Document 208 Filed 10/16/18 Page 6 of 7 PageID #: 10179
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`DATED: October 12, 2018
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`Respectfully submitted,
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`By: /s/ Christopher W. Kennerly
`Christopher W. Kennerly
`TX Bar No. 00795077
`chriskennerly@paulhastings.com
`PAUL HASTINGS LLP
`1117 S. California Ave.
`Palo Alto, California 94304
`Telephone: (650) 320-1800
`
`Barry Sher (pro hac vice)
`NY Bar No. 2325777
`barrysher@paulhastings.com
`Zachary Zwillinger (pro hac vice)
`NY Bar No. 5071154
`zacharyzwillinger@paulhastings.com
`PAUL HASTINGS LLP
`200 Park Avenue
`New York, New York 10166
`Telephone: (212) 318-6000
`
`Elizabeth L. Brann (pro hac vice)
`CA Bar No. 222873
`elizabethbrann@paulhastings.com
`Bob Chen (pro hac vice)
`CA Bar No. 273098
`bobchen@paulhastings.com
`PAUL HASTINGS LLP
`4747 Executive Drive, 12th Floor
`San Diego, California 92121
`Telephone: (858) 458-3000
`
`Melissa R. Smith
`TX Bar No. 24001351
`melissa@gillamsmithlaw.com
`GILLAM & SMITH, LLP
`303 S. Washington Ave.
`Marshall, TX 75670
`Telephone: (903) 934-8450
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`Attorneys for Defendants
`SAMSUNG ELECTRONICS CO., LTD AND
`SAMSUNG ELECTRONICS AMERICA,
`INC.
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`-5-
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`Case 2:17-cv-00140-WCB-RSP Document 208 Filed 10/16/18 Page 7 of 7 PageID #: 10180
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`CERTIFICATE OF SERVICE
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`I hereby certify that a true and correct copy of the foregoing document was filed
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`electronically in compliance with Local Rule CV-5 on October 12, 2018. As of this date, all
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`counsel of record had consented to electronic service and are being served with a copy of this
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`document through the Court’s CM/ECF system under Local Rule CV-5(a)(3)(A) and by email.
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` /s/ Christopher W. Kennerly
`Christopher W. Kennerly
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`CERTIFICATE OF AUTHORIZATION TO SEAL
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`I hereby certify that under Local Rule CV-5(a)(7), the foregoing document is filed under
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`seal pursuant to the Court’s Protective Order entered in this matter.
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` /s/ Christopher W. Kennerly
`Christopher W. Kennerly
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`-6-
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