Case 2:17-cv-00140-WCB-RSP Document 274 Filed 12/21/18 Page 1 of 7 PageID #: 11697
`RESTRICTED – ATTORNEYS’ EYES ONLY
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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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`FILED UNDER SEAL
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`DEFENDANTS SAMSUNG ELECTRONICS CO., LTD. AND SAMSUNG
`ELECTRONICS AMERICA, INC.’S OPPOSITION TO PLAINTIFF’S MOTION TO
`DE-DESIGNATE CONFIDENTIAL MATERIALS
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`Case 2:17-cv-00140-WCB-RSP Document 274 Filed 12/21/18 Page 2 of 7 PageID #: 11698
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`CyWee’s motion challenging the confidentiality designations of deposition testimony and
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`documents produced by Samsung relies on a defective reading of the Protective Order and a
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`strained analysis of statements made by Samsung’s witnesses at deposition. In particular, CyWee
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`improperly relies on Samsung’s witnesses’ deposition testimony to argue that Samsung believes
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`sensor fusion technology lacks “value.” According to CyWee, Samsung’s sensor fusion
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`technology does not qualify as a trade secret and cannot be designated “CONFIDENTIAL,”
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`“RESTRICTED - ATTORNEYS’ EYES ONLY,” or “RESTRICTED - CONFIDENTIAL
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`SOURCE CODE” under the Protective Order. This argument has two primary deficiencies.
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`First, CyWee misinterprets the Protective Order. Contrary to CyWee’s arguments, the
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`Protective Order plainly permits designation of “confidential or proprietary information or trade
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`secrets” as “RESTRICTED - ATTORNEYS’ EYES ONLY,” or “RESTRICTED -
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`CONFIDENTIAL SOURCE CODE.” Nowhere does the Protective Order require that a party
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`seeking to designate a document establish that information in the document meets the statutory
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`definition of a trade secret.
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`Second, Samsung’s witnesses’ testimony shows that public disclosure of the information
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`in disputed materials would in fact adversely impact Samsung. Samsung has a reasonable basis
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`for maintaining the confidentiality of the disputed materials: Public disclosure of those materials
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`would benefit Samsung’s competitors by giving them access to previously undisclosed
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`information that can be used to Samsung’s detriment. Regardless of Samsung’s witnesses’ views
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`of the “value” of sensor fusion technology, Samsung would be adversely impacted because it
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`would lose the competitive edge held by maintaining the secrecy of the disputed information.
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`-1-
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`Case 2:17-cv-00140-WCB-RSP Document 274 Filed 12/21/18 Page 3 of 7 PageID #: 11699
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`I.
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`ARGUMENT
`A.
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`CyWee Ignores the Protective Order’s Plain Language
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`Under the Protective Order, “[a] Party shall designate documents, information or material
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`as “CONFIDENTIAL” only upon a good faith belief that the documents, information or material
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`contains confidential or proprietary information or trade secrets of the Party . . . .” Dkt. No. 39
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`¶ 6 (emphasis added). The Protective Order does not otherwise define “CONFIDENTIAL,” and
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`it does not set forth any other requirements that must be met for materials to be appropriately
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`designated “CONFIDENTIAL.” To the extent a party believes certain “CONFIDENTIAL”
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`material “is so sensitive that its dissemination deserves even further limitation,” the Protective
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`Order permits the party to designate that material “RESTRICTED - ATTORNEYS’ EYES
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`ONLY” or “RESTRICTED - CONFIDENTIAL SOURCE CODE.” Id. ¶ 8.
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`CyWee states that, based on the Uniform Trade Secrets Act and Texas law, a “trade
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`secret” must have “independent economic value” and must also “present[] an opportunity to
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`obtain an advantage over competitors who do not know or use it.” Dkt. No. 262 at 8. The
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`Protective Order, however, does not mention either of those requirements. CyWee nonetheless
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`concludes, based solely on the “trade secret” prong, that the disputed materials cannot be
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`designated “CONFIDENTIAL,” “RESTRICTED - ATTORNEYS’ EYES ONLY,” or
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`“RESTRICTED - CONFIDENTIAL SOURCE CODE” under the Protective Order because they
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`do not contain information meeting those requirements. See Dkt. No. 262 at 7–9.
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`However, in addition to trade secrets, the Protective Order expressly contemplates
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`designation of “confidential or proprietary information.” Dkt. No. 39 ¶ 6. Without having
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`addressed the confidential or proprietary information prongs—under either of which documents
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`may also be appropriately designated “RESTRICTED - ATTORNEYS’ EYES ONLY” or
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`“RESTRICTED - CONFIDENTIAL SOURCE CODE,” CyWee posits that “Samsung cannot
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`-2-
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`Case 2:17-cv-00140-WCB-RSP Document 274 Filed 12/21/18 Page 4 of 7 PageID #: 11700
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`meet its burden of establishing that the Designated Materials are entitled to protection under any
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`level of confidentiality.” Dkt. No. 262 at 8.
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`CyWee has not established that the materials in dispute do not merit their
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`“RESTRICTED - ATTORNEYS’ EYES ONLY” or “RESTRICTED - CONFIDENTIAL
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`SOURCE CODE” designations. To the contrary, as discussed in the following section, Samsung
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`has a reasonable basis for maintaining the current designations assigned to the materials CyWee
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`seeks to de-designate.
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`B.
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`The Relevant Materials Deserve Their Current Designation
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`The information CyWee seeks to de-designate resulted from Samsung’s efforts and is
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`intended only for Samsung’s use. It is not public information, and Samsung’s witnesses did not
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`agree that Samsung would be willing to freely share its views, let alone technical details, about
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`its sensor fusion source code with third parties.1 Declaration of Gongbo Moon (“Moon Decl.”)
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`¶¶ 4–5; Declaration of Guy Waitley (“Waitley Decl.”) ¶¶ 4–5. Therefore, the materials deserve to
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`be covered by the Protective Order.
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`Regardless of the “value” (or lack thereof) ascribed by Samsung witnesses to sensor
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`fusion technology, Samsung still has a reasonable basis for maintaining witness testimony
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`regarding sensor fusion technology as confidential. Specifically, public dissemination of
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`Samsung’s opinions regarding the impact of sensor fusion technology on the competitiveness of
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`its devices in the marketplace would unfairly allow Samsung’s competitors access to Samsung’s
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`internal business information. Using that information, competitors could adjust their own
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`business strategies. By keeping this information highly confidential, Samsung maintains its
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`1 Indeed, Samsung only shared the information in the disputed materials with CyWee in view of
`its understanding that the materials would be designated “RESTRICTED - ATTORNEYS’
`EYES ONLY” or “RESTRICTED - CONFIDENTIAL SOURCE CODE” under the Protective
`Order.
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`-3-
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`Case 2:17-cv-00140-WCB-RSP Document 274 Filed 12/21/18 Page 5 of 7 PageID #: 11701
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`competitive advantage by preventing competitors from free-loading off of its proprietary
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`business knowledge.
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`Likewise, public dissemination of technical details and source code related to Samsung’s
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`internally-developed sensor fusion algorithm would unfairly allow Samsung’s competitors to
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`refine their own sensor fusion algorithms using Samsung’s efforts. Regardless of whether
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`Samsung views the functionalities enabled by sensor fusion to have “value,” Samsung benefits in
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`maintaining technical information regarding its approach to sensor fusion highly confidential by
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`forcing competitors to divert resources to develop their own approaches to sensor fusion.
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`CyWee only relies on one case—Constellation v. Avis—in which materials were found
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`improperly designated as confidential. Constellation, LLC v. Avis Budget Group, Inc., No. 5:07-
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`CV-38, 2007 WL 7658921, at *3 (E.D. Tex. Oct. 30, 2007). In that case, the court found the
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`plaintiff’s infringement contentions to be improperly designated confidential in part because the
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`plaintiff failed to show any particular harm that would result from their de-designation. See id.
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`The court also based its decision on its finding that the defendant had demonstrated that
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`designation of the materials hindered its ability to defend itself against the asserted claims and to
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`challenge the asserted patent in reexamination proceedings. Id. Here, Samsung has identified
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`specific harm that would result from de-designation of the disputed materials, and CyWee has
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`not provided any reason for why it requests de-designation of the materials in dispute.
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`CyWee misses the mark with its attempt to rely on Samsung’s witnesses’ deposition
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`testimony to show that Samsung believes sensor fusion technology has no “value.” In particular,
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`even if the statements relied upon by CyWee were to demonstrate that Samsung’s sensor fusion
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`technology has no “value” in the sense of a trade secret, those statements do not indicate that
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`Samsung does not view its knowledge of such as non-confidential or non-proprietary
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`-4-
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`Case 2:17-cv-00140-WCB-RSP Document 274 Filed 12/21/18 Page 6 of 7 PageID #: 11702
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`information. See Moon Decl. ¶¶ 4–5; Waitley Decl. ¶¶ 4–5. Therefore, Samsung has a reasonable
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`basis for maintaining the current confidentiality designations of the disputed materials, and
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`CyWee has not provided any evidence suggesting otherwise.
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`II.
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`CONCLUSION
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`CyWee’s argument that the disputed materials should be de-designated relies on the
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`incomplete and flawed interpretation of the Protective Order and baseless inferences drawn from
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`Samsung’s witnesses’ testimony. Contrary to CyWee’s argument, Samsung has a reasonable
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`basis for maintain the current designations of all disputed materials. Accordingly, Samsung
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`respectfully requests that CyWee’s motion be denied.
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`
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`DATED: December 20, 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
`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
`Facsimile:
`(212) 319-4090
`
`Elizabeth L. Brann (pro hac vice)
`CA Bar No. 222873
`elizabethbrann@paulhastings.com
`
`-5-
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`

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`Case 2:17-cv-00140-WCB-RSP Document 274 Filed 12/21/18 Page 7 of 7 PageID #: 11703
`RESTRICTED – ATTORNEYS’ EYES ONLY
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`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
`Facsimile: (903) 934-9257
`
`Attorneys for Defendants
`SAMSUNG ELECTRONICS CO., LTD AND
`SAMSUNG ELECTRONICS AMERICA,
`INC.
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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 December 20, 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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`
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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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`
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` /s/ Christopher W. Kennerly
`Christopher W. Kennerly
`
`
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`-6-
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`