Case 2:17-cv-00140-WCB-RSP Document 94 Filed 05/09/18 Page 1 of 9 PageID #: 2827
`
`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’ MOTION TO COMPEL INTERROGATORY RESPONSES
`
`

`

`Case 2:17-cv-00140-WCB-RSP Document 94 Filed 05/09/18 Page 2 of 9 PageID #: 2828
`
`
`I.
`
`INTRODUCTION
`
`The Court’s Discovery Order allows each side to serve forty interrogatories.
`
`Notwithstanding, CyWee seeks to limit Samsung to fewer than fifteen interrogatories by refusing to
`
`fully respond to Samsung’s Interrogatory No. 15 and presumably all subsequent interrogatories. The
`
`only basis for CyWee’s improper refusal is its argument that each of Samsung’s interrogatories
`
`contains subparts. CyWee has stated that it will comply with its discovery obligations only if
`
`Samsung first concedes that Samsung has propounded the maximum number of interrogatories
`
`allowed under the Discovery Order.
`
`CyWee’s position directly conflicts with the Court’s well-established positions on this issue.
`
`Each of Samsung’s interrogatories is directed to a single issue in this litigation. As this Court has
`
`held, it is proper to organize such questions in a manner that breaks them down into parts, making
`
`CyWee’s unilateral refusal to respond improper. Further, the fact that an interrogatory asks for
`
`documents and witnesses related to the issue addressed by the interrogatory does not render that
`
`interrogatory three separate interrogatories. Samsung therefore respectfully requests that the Court
`
`overrule CyWee’s improper objections and order CyWee to provide a complete response to
`
`Interrogatory No. 15.
`
`II.
`
`PROCEDURAL AND FACTUAL HISTORY
`
`Samsung has propounded three sets of interrogatories on CyWee. CyWee served responses
`
`to the first and second sets on November 22 and December 1, 2017, respectively; the responses to
`
`the third set are due May 28, 2018. CyWee objected to Interrogatory Nos. 1, 2, 5, and 8–15 on the
`
`basis that they contain multiple separate subparts. For example, Interrogatory No. 9 states:
`
`Describe the complete factual and legal basis for Your contention
`that any Defendant has willfully infringed any claim of the Patents-in-
`Suit, including when and how the Defendant(s) were put on notice of
`the Patents-in-Suit and its alleged infringement thereof, how and why
`Defendant(s)’ conduct has been objectively reckless, the identity of all
`
`-1-
`
`

`

`Case 2:17-cv-00140-WCB-RSP Document 94 Filed 05/09/18 Page 3 of 9 PageID #: 2829
`
`
`persons involved and documents (by Bates number) relating to any of
`the foregoing.
`
`(Brann Decl. ¶ 2.) Even though this interrogatory merely requests information supporting CyWee’s
`
`willful infringement allegations, CyWee objected that it in fact includes three subparts, stating:
`
`CyWee further objects because the interrogatory is comprised of one
`or more discrete subparts and should be treated as multiple
`interrogatories for purposes of the limits set forth in the Court’s
`Discovery Order (Dkt. 35); specifically, the foregoing interrogatory is
`comprised of three logically and factually distinct subparts — namely,
`(i) “the complete factual and legal basis” for CyWee’s “contention
`that any Defendant has willfully infringed any claim of the Patents-in-
`Suit;”
`(ii) “identification of all persons
`involved;” and
`(iii)
`identification of documents related to such facts and persons — and
`should accordingly be counted as at least three interrogatories. See
`Banks, 222 F.R.D. at 10; IOSTAR Corp., 2008 WL 1924209, at *1.
`
`(Brann Decl. ¶ 3.) CyWee propounded similar objections for Samsung’s other interrogatories:
`
`Interrogatory
`Number
`1
`
`Topic
`
`Marking
`
`2
`
`5
`
`8
`
`10
`
`11
`
`12
`
`Licensing
`
`Invention
`
`Disclosures of patented
`technology
`
`Secondary considerations
`of non-obviousness
`
`Studies of the patents-in-
`suit
`
`Reasonable royalty
`
`CyWee’s alleged subtopics
`
`(i) Identification of products practicing patents-in-
`suit;
`(ii) Marking requirements
`(i) Facts regarding licensing;
`(ii) Persons with knowledge of facts;
`(iii) Documents related to the facts
`(i) Facts regarding invention;
`(ii) Persons with knowledge of facts;
`(iii) Documents related to the facts
`(i) Identification of first disclosures of patented
`technology;
`(ii) Persons with knowledge of facts;
`(iii) Documents related to the facts
`(i) Facts regarding secondary considerations;
`(ii) Persons with knowledge of facts;
`(iii) Documents related to the facts
`(i) Studies of patents-in-suit;
`(ii) Persons with knowledge of facts;
`(iii) Documents related to the facts
`(i) Factual and legal bases for CyWee’s contention
`
`-2-
`
`

`

`Case 2:17-cv-00140-WCB-RSP Document 94 Filed 05/09/18 Page 4 of 9 PageID #: 2830
`
`
`13
`
`14
`
`15
`
`contentions
`
`Section 112(1) invalidity
`defenses
`
`Differences between
`patented invention and
`the prior art
`
`Embodiments of the
`patents-in-suit
`
`that it is entitled to a reasonable royalty;
`(ii) Identification of reasonable royalty rate;
`(iii) Identification of licenses supporting royalty rate;
`(iv) Separate statement for each such license
`regarding whether IP is comparable to patents-in-
`suit;
`(iv) Persons with knowledge of facts;
`(v) Documents related to the facts
`(i) Portions of specification related to written
`description;
`(ii) Portions of specification related to enablement.
`(i) Description of manners or techniques by which
`CyWee asserts the patents-in-suit improved upon
`the prior art;
`(ii) Identification of claim limitations for each such
`improvement;
`(iii) Identification of whether each improvement was
`a non-obvious or unpredictable improvement, or an
`addition of functionality, variation, or upgrade.
`(i) Identification of embodiments of patents-in-suit;
`(ii) The asserted claims practiced by each such
`embodiment;
`(iii) Identification of dates of creation and use of
`each embodiment;
`(iv) Identification of persons involved and
`circumstances surrounding the embodiment;
`(v) Identification of whether marking requirements
`were met for the embodiment;
`(vi) Identification of documents
`
`Samsung asked CyWee to withdraw the subpart objections and respond fully to Interrogatory
`
`No. 15. (Brann Decl. ¶ 7.) CyWee refused. (Brann Decl. ¶ 8.) Over the course of meeting and
`
`conferring, CyWee stated that it would respond to the final subpart of Interrogatory No. 15 if
`
`Samsung agreed that it had served the maximum of forty interrogatories. (Brann Decl. ¶ 9.)
`
`-3-
`
`

`

`Case 2:17-cv-00140-WCB-RSP Document 94 Filed 05/09/18 Page 5 of 9 PageID #: 2831
`
`
`On April 27, 2018, Samsung propounded six additional interrogatories. (Brann Decl. ¶ 10.)
`
`Samsung expects that CyWee will refuse to respond to those interrogatories based on its objections
`
`to the previously propounded interrogatories.
`
`III.
`
`SAMSUNG IS ENTITLED TO A FULL RESPONSE TO INTERROGATORY
`NO. 15
`
`Samsung’s Interrogatory No. 15 seeks relevant, discoverable information regarding
`
`embodiments of the patents-in-suit. Rather than fully respond, CyWee attempts to obstruct the
`
`discovery process by conditioning its full response to this interrogatory on Samsung’s agreement
`
`that it has exceeded the maximum number of interrogatories allowed under the Discovery Order.
`
`(Brann Decl ¶ 9.) CyWee’s refusal to provide a complete answer is improper because Samsung’s
`
`interrogatories do not constitute subparts that count as separate interrogatories. It is well established
`
`that even where an interrogatory contains subparts, it may be considered a single interrogatory under
`
`“the ‘related question’ approach, combined with an eye toward the pragmatic considerations . . . .”
`
`See Erfindergemeinschaft Uropep GbR v. Eli Lilly & Co., 315 F.R.D. 191, 197 (E.D. Tex. 2016). The
`
`“related question” approach provides that “subparts that are logically or factually subsumed within
`
`and necessarily related to the primary question should not be treated as separate interrogatories.” Id.
`
`at 196. This “pragmatic approach” asks whether an interrogatory “threatens the purpose of Rule 33
`
`by combining into one interrogatory several lines of inquiry that should be kept separate.” Id.
`
`(citation omitted).
`
`CyWee’s complaints fall into two categories. First, for Interrogatory Nos. 1 and 12–15,
`
`CyWee impermissibly breaks each interrogatory down into subtopics notwithstanding the fact that
`
`the interrogatory relates to one topic. CyWee cites no authority supporting this breakdown. In fact,
`
`it is proper to organize interrogatories in a manner that breaks them down into parts.
`
`Erfindergemeinschaft, 315 F.R.D. at 195. Specifically, Interrogatory No. 15, which CyWee has refused
`
`to fully answer, states:
`
`-4-
`
`

`

`Case 2:17-cv-00140-WCB-RSP Document 94 Filed 05/09/18 Page 6 of 9 PageID #: 2832
`
`
`Separately for each Patent-in-Suit, identify any and all alleged
`embodiments of the Patent-in-Suit, including all products or services
`made, used, imported, offered for sale or sold, whether or not for a
`fee, by or on behalf of CyWee or any party licensed or otherwise
`authorized to practice the patent-in-suit or related patents. Separately
`for each such embodiment: (a) identify the Asserted Claims of the
`Patent-in-Suit allegedly practiced by such embodiment; (b) the dates
`of creation and use; (c) the persons involved and the surrounding
`circumstances of its creation, offer for sale, sale, importation, and/or
`use; (d) whether or not, and if so how, the marking requirements of
`35 U.S.C. § 287 were met, including the dates when any marking
`began and ended for each product; and (e) an identification of all
`related documents (by Bates number).
`
`(Brann Decl. ¶ 6.) CyWee alleges that Interrogatory No. 15 contains six subparts. (Id.) This
`
`interrogatory, however, is directed to the primary question of whether CyWee contends there are
`
`any alleged embodiments of the patents-in-suit. Samsung identified a number of common issues
`
`implicated by such an inquiry, including (i) the asserted claims that the embodiments allegedly
`
`practice; (ii) dates of creation and use; (iii) persons involved in their creation, use, sale, offer for sale,
`
`and importation; (iv) whether the marking requirements were met; and (v) an identification of any
`
`documents in CyWee’s possession related to these topics. These common issues do not comprise
`
`separate topics because they are factually subsumed within the overall question regarding
`
`embodiments of the patents-in-suit; the primary question cannot be answered without providing the
`
`enumerated categories of information.
`
`CyWee’s responses to the alleged subparts overlap with each other. Most notably, CyWee
`
`responded to the alleged second and third subparts of Interrogatory No. 14 by stating that
`
`information related to those subparts “appears in CyWee’s response to the first subpart.”
`
`(Brann Decl. ¶¶ 4–5.) CyWee therefore cannot credibly argue that the alleged three inquiries are not
`
`subsumed within each other. Its objections to Interrogatory Nos. 1, 12, and 13 are improper for the
`
`same reasons.
`
`Second, CyWee counts each interrogatory asking for an identification of witnesses and facts
`
`-5-
`
`

`

`Case 2:17-cv-00140-WCB-RSP Document 94 Filed 05/09/18 Page 7 of 9 PageID #: 2833
`
`
`related to the primary question as three interrogatories. (See, e.g., Brann Decl. ¶¶ 2–3.) This Court has
`
`overruled such objections. EMG Tech., LLC v. Thevanguard Grp., Inc., No. 6:12-cv-543, 2014 U.S.
`
`Dist. LEXIS 191714, at *6–7 (E.D. Tex. Apr. 16, 2014); Keranos, LLC v. Silicon Storage Tech., Inc., No.
`
`2:13-cv-17, 2013 U.S. Dist. LEXIS 145194, at *8–9 (E.D. Tex. Aug. 5, 2013). Both of these cases
`
`cited but did not follow the contrary approach suggested by FTC. v. Think All Publishing, LLC, No.
`
`4:07-cv-011, 2008 WL 687455, at *1 (E.D. Tex. Mar. 11, 2008). CyWee also relies on a number of
`
`cases from different districts, including courts outside the Fifth Circuit, to support its position. See
`
`Banks v. Office of Senate Sergeant -at-Arms, 222 F.R.D. 7 (D.D.C. 2004); IOSTAR Corp. v. Stuart, No.
`
`1:07 CV 133 DB, 2008 WL 1924209, at *1 (D. Utah. Apr. 25, 2008); Dimitrijevic v. TV & C GP
`
`Holding, Inc., No. H-04-3457, 2005 U.S. Dist. LEXIS 41399, at *8 (S.D. Tex. Aug. 24, 2005);
`
`Krawczyk v. City of Dallas, No. Civ.A. 3:03–CV–0584D, 2004 WL 614842, at *2 (N.D. Tex. Feb. 27,
`
`2004). The approach in these cases also runs contrary to the approach adopted in this district.
`
`Finally, CyWee also relies on Erfindergemeinschaft Uropep GbR v. Eli Lilly & Co., but that case is
`
`unavailing. There, the Court found that a request for documents supporting or refuting the response
`
`to the primary question was not a discrete subpart. 315 F.R.D. at 200. The Court did find other
`
`interrogatories to be compound, but those examples merely demonstrate why CyWee’s objections
`
`are unfounded. For example, one interrogatory requested the mechanism underlying the
`
`pharmaceutical effects of a drug but also asked for all persons involved in the development of the
`
`drug and the documents related to that development. Id. at 197. The Court found that the
`
`mechanism underlying the drug was a separate topic from the drug’s development. Id. Moreover,
`
`that interrogatory counted only as two interrogatories, not as three as CyWee urges. Id. Therefore,
`
`CyWee cannot credibly argue that Samsung’s requests for documents and witnesses mean that each
`
`of the relevant interrogatories counts as three separate interrogatories.
`
`-6-
`
`

`

`Case 2:17-cv-00140-WCB-RSP Document 94 Filed 05/09/18 Page 8 of 9 PageID #: 2834
`
`
`IV.
`
`CONCLUSION
`
`CyWee must respond to up to forty interrogatories propounded by Samsung. CyWee has
`
`fully responded to fewer than fifteen of them and likely will refuse to respond to the additional six
`
`interrogatories Samsung has recently served. CyWee’s objections are based on authority from
`
`outside this district that has not been followed here. Therefore, Samsung respectfully requests that
`
`the Court enter an order overruling CyWee’s improper objections and ordering CyWee to provide a
`
`full response to Samsung’s Interrogatory No. 15.
`
`DATED: May 9, 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
`
`Elizabeth L. Brann (pro hac vice)
`CA Bar No. 222873
`elizabethbrann@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
`Facsimile: (903) 934-9257
`
`Attorneys for Defendants
`SAMSUNG ELECTRONICS CO. LTD AND
`SAMSUNG ELECTRONICS AMERICA, INC.
`
`-7-
`
`

`

`Case 2:17-cv-00140-WCB-RSP Document 94 Filed 05/09/18 Page 9 of 9 PageID #: 2835
`
`
`
`
`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 May 9, 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).
`
` /s/ Christopher W. Kennerly
`Christopher W. Kennerly
`
`
`
`
`
`
`
`
`CERTIFICATE OF CONFERENCE
`
`In accordance with Local Rule CV-7(h), I hereby certify that counsel for Defendants,
`
`Elizabeth Brann, met and conferred with counsel for Plaintiff, William Ellerman and Ari Rafilson,
`
`by telephone on April 27, 2018. Counsel for Plaintiff indicated that it would oppose the relief
`
`requested herein.
`
` /s/ Christopher W. Kennerly
`Christopher W. Kennerly
`
`
`
`
`
`
`-8-
`
`