`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`CYWEE GROUP LTD.,
`
`Plaintiff
`
`v.
`
`SAMSUNG ELECTRONICS CO. LTD.
`AND SAMSUNG ELECTRONICS
`AMERICA, INC.,
`
`Defendants.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`
`NO. 2:17-CV-00140-RWS-RSP
`
`
`
`DEFENDANTS SAMSUNG ELECTRONICS CO., LTD. AND SAMSUNG
`ELECTRONICS AMERICA, INC.’S REPLY IN SUPPORT OF MOTION TO STRIKE
`PLAINTIFF’S UNTIMELY SUPPLEMENTAL INFRINGEMENT CHARTS
`
`
`
`Case 2:17-cv-00140-WCB-RSP Document 224 Filed 10/22/18 Page 2 of 7 PageID #: 10512
`
`
`
`
`CyWee failed to timely supplement its infringement contention charts. It now blames
`
`Samsung for the delay by attempting to manufacture a false narrative that Samsung withheld
`
`source code and related information that would have allowed for timely supplementation. To the
`
`contrary, Samsung offered to make relevant source code available for inspection on March 23,
`
`2018 and identified the sensor fusion algorithm used by each accused product that same day.
`
`Indeed, the source code CyWee cites in the supplemental charts at issue in this motion has been
`
`available to CyWee since March 23, 2018. Because CyWee cannot provide any tenable excuse
`
`for its delay in attempting to supplement, Samsung respectfully submits that its motion to strike
`
`should be granted.
`
`I.
`
`CYWEE’S SUPPLEMENTATION WAS NOT TIMELY
`
`Samsung has consistently been forthcoming about its products’ operation.
`
`
`
`
`
`
`
`
`
`
`
`
`
`Further, CyWee cannot and does not dispute that each and every source code citation in
`
`its supplemental charts is from code produced to CyWee in hard copy form on May 11, 2018.
`
`The deadline for CyWee to supplement its infringement contentions to include that code was
`
`thus June 11, 2018. Dkt. No. 35 at 2.
`
`CyWee claims that the clock did not start until Samsung made fully-searchable source
`
`code available for inspection.
`
`
`
` Brann
`
`Decl. (Dkt. No. 187-1), Ex. 14. Therefore, even under CyWee’s view of the world, the deadline
`
`-1-
`
`
`
`Case 2:17-cv-00140-WCB-RSP Document 224 Filed 10/22/18 Page 3 of 7 PageID #: 10513
`Case 2:17-cv-00140-WCB-RSP Document 224 Filed 10/22/18 Page 3 of 7 PageID #: 10513
`
`for CyWee to supplement its infringement contentions to include that code was August 29 at the
`
`latest. CyWee did not meet that deadline either.
`
`CyWee attempts to explain away its failure to timely comply with the disclosure deadline
`
`by falsely alleging that Samsung withheld relevant inf01mation during pre-suit negotiations,
`
`failed to timely produce relevant source code during the fact discovely peliod, and offered an
`
`Imprepared witness to testify regarding— None of these
`
`excuses has any merit.
`
`CyWee first complains that Sams1mg failed to provide details regarding the sensor fusion
`
`source code used in each of the accused products dluing pre-suit negotiations, and alleges that
`
`— CyWee does not explain how negotiations that took place
`
`over a year and a half ago relate to its failure to timely supplement its infringement theories in
`
`view of information it obtained during the discovery period.
`
`Next, CyWee misleadingly argues that Samsrmg’s production of som‘ce code plintouts
`
`and other information in March and May 2018 did not provide CyWee adequate information to
`
`supplement its infiingement theories. However, the code CyWee cites in its supplemental charts
`
`is the same code Sams1mg made available for inspection on March 23 and produced in printed
`
`form on May 11.
`
`Fluther, despite knowing the specific version of sensor fusion som‘ce code used by each
`
`accused product and having a printed version of- sensor fusion source code for months
`
`
`
`
`
`Case 2:17-cv-00140-WCB-RSP Document 224 Filed 10/22/18 Page 4 of 7 PageID #: 10514
`
`
`before the depositions of Samsung’s corporate witnesses, CyWee again tries to point the finger at
`
`Samsung for its own delay in supplementing its infringement contentions by falsely alleging that
`
`
`
`
`
`
`
`
`
`Notwithstanding its attempts to shift blame to Samsung for its own failure to supplement
`
`its infringement contentions, CyWee cannot obscure the fact that it had information and access to
`
`source code adequate to supplement its infringement contentions by March 23 yet still failed to
`
`attempt to supplement until September 10. CyWee cannot credibly argue that it timely
`
`supplemented its infringement contentions.
`
`II.
`
`CYWEE LACKS GOOD CAUSE TO SUPPLEMENT
`
`CyWee does not have good cause to supplement, as required under Patent L.R. 3-6. To
`
`the contrary, none of CyWee’s arguments addressing the four factors considered by Fifth Circuit
`
`Courts have merit.
`
`First, CyWee cannot justify its delay in supplementing. Instead, CyWee offers nothing
`
`more than unsupported excuses. As detailed in the preceding section, CyWee attempts to justify
`
`its own lack of diligence by blaming Samsung, but the facts do not support its excuses.
`
`
`
`
`
`
`
`Second, although the information to be supplemented is important to this case, CyWee
`
`states that that “[t]he supplements do not fundamentally alter CyWee’s damages or infringement
`
`theories, and . . . are based upon information that Samsung has had in its sole possession
`
`
`
`-3-
`
`
`
`Case 2:17-cv-00140-WCB-RSP Document 224 Filed 10/22/18 Page 5 of 7 PageID #: 10515
`
`
`throughout this case and even earlier during pre-Litigation negotiations that began in June of
`
`2016.” Dkt. 206 at 14. To the contrary, CyWee’s infringement theories have changed, as seen
`
`clearly in its expert report served just last week. Supp. Brann Decl., Ex. 23.
`
`Third, Samsung has been prejudiced by the delay.
`
`
`
`
`
`
`
`
`
`
`
` Accordingly, given that CyWee’s supplemental charts set forth a new,
`
`fundamentally different infringement theory, Samsung will suffer significant unfair prejudice
`
`unless CyWee’s supplemental charts are struck.
`
`Fourth, no continuance would cure the unfair prejudice to Samsung. CyWee states that a
`
`continuance would not be necessary because a trial date for the case has not yet been set and
`
`expert discovery has just begun. However, that ignores the fact that Samsung is already deep into
`
`the process of preparing its rebuttal expert reports based on the new infringement theory CyWee
`
`only just disclosed. Further, this case has already been delayed by CyWee on multiple occasions
`
`and Samsung is eager to bring it to a close. A continuance would only compound the unfair
`
`prejudice to Samsung.
`
`In light of the applicable factors, CyWee cannot demonstrate good cause to supplement
`
`and its supplement charts should be stricken.
`
`III. CONCLUSION
`
`Despite its numerous excuses, CyWee failed to timely supplement its infringement
`
`contentions and has not demonstrated good cause to supplement now. Indeed, Samsung would
`
`suffer considerable unfair prejudice if supplementation were permitted, given that CyWee’s
`
`-4-
`
`
`
`Case 2:17-cv-00140-WCB-RSP Document 224 Filed 10/22/18 Page 6 of 7 PageID #: 10516
`
`
`supplemental charts disclose an entirely new infringement theory. Accordingly, Samsung
`
`respectfully requests that the Court strike CyWee’s supplemental charts.
`
`
`DATED: October 18, 2018
`
`
`
`
`Respectfully submitted,
`
`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
`Facsimile:
`(650) 320-1900
`
`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
`Facsimile:
`(858) 458-3005
`
`Melissa R. Smith
`TX Bar No. 24001351
`melissa@gillamsmithlaw.com
`GILLAM & SMITH, LLP
`303 S. Washington Ave.
`Marshall, TX 75670
`Telephone: (903) 934-8450
`
`-5-
`
`
`
`Case 2:17-cv-00140-WCB-RSP Document 224 Filed 10/22/18 Page 7 of 7 PageID #: 10517
`
`
`Facsimile: (903) 934-9257
`
`Attorneys for Defendants
`SAMSUNG ELECTRONICS CO. LTD AND
`SAMSUNG ELECTRONICS AMERICA, INC.
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that a true and correct copy of the foregoing document was filed
`
`
`
`
`
`
`electronically in compliance with Local Rule CV-5 on October 18, 2018. As of this date, all
`
`counsel of record had consented to electronic service and are being served with a copy of this
`
`document through the Court’s CM/ECF system under Local Rule CV-5(a)(3)(A) and by email.
`
` /s/ Christopher W. Kennerly
`Christopher W. Kennerly
`
`
`
`CERTIFICATE OF AUTHORIZATION TO SEAL
`
`
`
`I hereby certify that under Local Rule CV-5(a)(7), the foregoing document is filed under
`
`
`
`seal pursuant to the Court’s Protective Order entered in this matter.
`
` /s/ Christopher W. Kennerly
`Christopher W. Kennerly
`
`
`
`
`
`
`
`
`-6-
`
`