Case 2:17-cv-00513-JRG Document 275-3 Filed 01/09/19 Page 1 of 12 PageID #: 18539
`Case 2:17-cv-00513-JRG Document 275-3 Filed 01/09/19 Page 1 of 12 PageID #: 18539
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`EXHIBIT 3
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`EXHIBIT 3
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`
`
`

`

`Case 2:17-cv-00513-JRG Document 275-3 Filed 01/09/19 Page 2 of 12 PageID #: 18540
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`
`AGIS SOFTWARE DEVELOPMENT, LLC,
`
`
`Plaintiff,
`
`
`
`v.
`
`
`HUAWEI DEVICE USA INC., ET AL.,
`
`
`Defendants.
`
`
`
`Case No. 2:17-CV-0513-JRG
`(Lead Case)
`
`
`JURY TRIAL DEMANDED
`
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`
`NOTICE OF SUBPOENA TO
`NEIL GILBERT SIEGEL
`
`PLEASE TAKE NOTICE that, pursuant to Federal Rules of Civil Procedure Rules 26,
`
`
`
`
`30, 34, and 45, counsel to Plaintiff AGIS Software Development LLC has served the attached
`
`deposition subpoena upon non-party Neil Gilbert Siegel.
`
`Dated: September 27, 2018
`
`
`
`
`
`
`
`Respectfully submitted,
`
`BROWN RUDNICK LLP
`
` /s/ Vincent J. Rubino, III
`Alfred R. Fabricant
`NY Bar No. 2219392
`Email: afabricant@brownrudnick.com
`Lawrence C. Drucker
`NY Bar No. 2303089
`Email: ldrucker@brownrudnick.com
`Peter Lambrianakos
`NY Bar No. 2894392
`Email: plambrianakos@brownrudnick.com
`Vincent J. Rubino, III
`NY Bar No. 4557435
`Email: vrubino@brownrudnick.com
`Alessandra C. Messing
`
`

`

`Case 2:17-cv-00513-JRG Document 275-3 Filed 01/09/19 Page 3 of 12 PageID #: 18541
`
`NY Bar No. 5040019
`Email: amessing@brownrudnick.com
`John A. Rubino
`NY Bar No. 5020797
`Email: jrubino@brownrudnick.com
`Enrique W. Iturralde
`NY Bar No. 5526280
`Email: eiturralde@brownrudnick.com
`Daniel J. Shea Jr.
`NY Bar No. 5430558
`Email: dshea@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 East Houston Street, Suite 300
`Marshall, Texas 75670
`Telephone: 903-923-9000
`Facsimile: 903-923-9099
`
`ATTORNEYS FOR PLAINTIFF, AGIS
`SOFTWARE DEVELOPMENT, LLC
`
`
`
`2
`
`

`

`Case 2:17-cv-00513-JRG Document 275-3 Filed 01/09/19 Page 4 of 12 PageID #: 18542
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on September 27, 2018 a true and correct copy of the above and
`
`foregoing document has been served by email on:
`
`Melissa Richards Smith
`melissa@gillamsmithlaw.com
`GILLAM & SMITH, LLP
`303 South Washington Ave.
`Marshall, TX 75670
`
`Michael P. Stadnick
`mstadnick@desmaraisllp.com
`DESMARAIS LLP
`230 Park Avenue
`New York, NY 10169
`
`Kerri-Ann Limbeek
`klimbeek@desmaraisllp.com
`DESMARAIS LLP
`230 Park Avenue
`New York, NY 10169
`
`Jeffrey Scott Seddon, II
`jseddon@desmaraisllp.com
`DESMARAIS LLP
`230 Park Avenue
`New York, NY 10169
`
`Francesco D. Silletta
`fsilletta@desmaraisllp.com
`DESMARAIS LLP
`230 Park Avenue
`New York, NY 10169
`
`John M. Desmarais
`jdesmarais@desmaraisllp.com
`DESMARAIS LLP
`230 Park Avenue
`New York, NY 10169
`
`Ameet A. Modi
`amodi@desmaraisllp.com
`DESMARAIS LLP
`230 Park Avenue
`New York, NY 10169
`
`Brian Matty
`bmatty@desmaraisllp.com
`DESMARAIS LLP
`230 Park Avenue
`New York, NY 10169
`
`Wesley L. White
`wwhite@desmaraisllp.com
`DESMARAIS LLP
`230 Park Avenue
`New York, NY 10169
`
`
`
`
`
`
`
`Attorneys for Apple Inc.
`
`
`/s/ Vincent J. Rubino, III
`
`
`
` Vincent J. Rubino, III
`
`
`
`

`

`Case 2:17-cv-00513-JRG Document 275-3 Filed 01/09/19 Page 5 of 12 PageID #: 18543
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`AO 88A (Rev. 02/14) Subpoena to Testify at a Deposition in a Civil Action
`
`UNITED STATES DISTRICT COURT
`for the
`__________ District of __________
`
`Civil Action No.
`
`))))))
`
`Plaintiff
`v.
`
`Defendant
`
`SUBPOENA TO TESTIFY AT A DEPOSITION IN A CIVIL ACTION
`
`To:
`
`(Name of person to whom this subpoena is directed)
`’ Testimony: YOU ARE COMMANDED to appear at the time, date, and place set forth below to testify at a
`deposition to be taken in this civil action. If you are an organization, you must designate one or more officers, directors,
`or managing agents, or designate other persons who consent to testify on your behalf about the following matters, or
`those set forth in an attachment:
`
`Place:
`
`Date and Time: October 9, 2018 at 9:00 a.m. PT
`
`The deposition will be recorded by this method:
`
`’ Production: You, or your representatives, must also bring with you to the deposition the following documents,
`electronically stored information, or objects, and must permit inspection, copying, testing, or sampling of the
`material:
`
`The following provisions of Fed. R. Civ. P. 45 are attached – Rule 45(c), relating to the place of compliance;
`Rule 45(d), relating to your protection as a person subject to a subpoena; and Rule 45(e) and (g), relating to your duty to
`respond to this subpoena and the potential consequences of not doing so.
`
`Date:
`
`CLERK OF COURT
`
`OR
`
`Signature of Clerk or Deputy Clerk
`
`Attorney’s signature
`
`The name, address, e-mail address, and telephone number of the attorney representing (name of party)
`, who issues or requests this subpoena, are:
`
`Notice to the person who issues or requests this subpoena
`If this subpoena commands the production of documents, electronically stored information, or tangible things before
`trial, a notice and a copy of the subpoena must be served on each party in this case before it is served on the person to
`whom it is directed. Fed. R. Civ. P. 45(a)(4).
`
`

`

`Case 2:17-cv-00513-JRG Document 275-3 Filed 01/09/19 Page 6 of 12 PageID #: 18544
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`AO 88A (Rev. 02/14) Subpoena to Testify at a Deposition in a Civil Action (Page 2)
`
`Civil Action No.
`
`PROOF OF SERVICE
`(This section should not be filed with the court unless required by Fed. R. Civ. P. 45.)
`
`I received this subpoena for (name of individual and title, if any)
`.
`
`on (date)
`
`’ I served the subpoena by delivering a copy to the named individual as follows:
`
`’ I returned the subpoena unexecuted because:
`
`on (date)
`
`; or
`
`Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also
`tendered to the witness the fees for one day’s attendance, and the mileage allowed by law, in the amount of
`$
`.
`
`My fees are $
`
`for travel and $
`
`for services, for a total of $
`
`.
`
`.
`
`I declare under penalty of perjury that this information is true.
`
`Date:
`
`Additional information regarding attempted service, etc.:
`
`Server’s signature
`
`Printed name and title
`
`Server’s address
`
`

`

`Case 2:17-cv-00513-JRG Document 275-3 Filed 01/09/19 Page 7 of 12 PageID #: 18545
`
`AO 88A (Rev. 02/14) Subpoena to Testify at a Deposition in a Civil Action (Page 3)
`Federal Rule of Civil Procedure 45 (c), (d), (e), and (g) (Effective 12/1/13)
`(i) disclosing a trade secret or other confidential research, development,
`or commercial information; or
` (ii) disclosing an unretained expert’s opinion or information that does
`not describe specific occurrences in dispute and results from the expert’s
`study that was not requested by a party.
` (C) Specifying Conditions as an Alternative. In the circumstances
`described in Rule 45(d)(3)(B), the court may, instead of quashing or
`modifying a subpoena, order appearance or production under specified
`conditions if the serving party:
` (i) shows a substantial need for the testimony or material that cannot be
`otherwise met without undue hardship; and
` (ii) ensures that the subpoenaed person will be reasonably compensated.
`
`(c) Place of Compliance.
` (1) For a Trial, Hearing, or Deposition. A subpoena may command a
`person to attend a trial, hearing, or deposition only as follows:
` (A) within 100 miles of where the person resides, is employed, or
`regularly transacts business in person; or
` (B) within the state where the person resides, is employed, or regularly
`transacts business in person, if the person
` (i) is a party or a party’s officer; or
` (ii) is commanded to attend a trial and would not incur substantial
`expense.
` (2) For Other Discovery. A subpoena may command:
` (A) production of documents, electronically stored information, or
`tangible things at a place within 100 miles of where the person resides, is
`employed, or regularly transacts business in person; and
` (B) inspection of premises at the premises to be inspected.
`
`(d) Protecting a Person Subject to a Subpoena; Enforcement.
` (1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney
`responsible for issuing and serving a subpoena must take reasonable steps
`to avoid imposing undue burden or expense on a person subject to the
`subpoena. The court for the district where compliance is required must
`enforce this duty and impose an appropriate sanction—which may include
`lost earnings and reasonable attorney’s fees—on a party or attorney who
`fails to comply.
` (2) Command to Produce Materials or Permit Inspection.
` (A) Appearance Not Required. A person commanded to produce
`documents, electronically stored information, or tangible things, or to
`permit the inspection of premises, need not appear in person at the place of
`production or inspection unless also commanded to appear for a deposition,
`hearing, or trial.
` (B) Objections. A person commanded to produce documents or tangible
`things or to permit inspection may serve on the party or attorney designated
`in the subpoena a written objection to inspecting, copying, testing, or
`sampling any or all of the materials or to inspecting the premises—or to
`producing electronically stored information in the form or forms requested.
`The objection must be served before the earlier of the time specified for
`compliance or 14 days after the subpoena is served. If an objection is made,
`the following rules apply:
` (i) At any time, on notice to the commanded person, the serving party
`may move the court for the district where compliance is required for an
`order compelling production or inspection.
` (ii) These acts may be required only as directed in the order, and the
`order must protect a person who is neither a party nor a party’s officer from
`significant expense resulting from compliance.
` (3) Quashing or Modifying a Subpoena.
` (A) When Required. On timely motion, the court for the district where
`compliance is required must quash or modify a subpoena that:
`
` (i) fails to allow a reasonable time to comply;
` (ii) requires a person to comply beyond the geographical limits
`specified in Rule 45(c);
` (iii) requires disclosure of privileged or other protected matter, if no
`exception or waiver applies; or
` (iv) subjects a person to undue burden.
` (B) When Permitted. To protect a person subject to or affected by a
`subpoena, the court for the district where compliance is required may, on
`motion, quash or modify the subpoena if it requires:
`
`(e) Duties in Responding to a Subpoena.
` (1) Producing Documents or Electronically Stored Information. These
`procedures apply to producing documents or electronically stored
`information:
` (A) Documents. A person responding to a subpoena to produce documents
`must produce them as they are kept in the ordinary course of business or
`must organize and label them to correspond to the categories in the demand.
` (B) Form for Producing Electronically Stored Information Not Specified.
`If a subpoena does not specify a form for producing electronically stored
`information, the person responding must produce it in a form or forms in
`which it is ordinarily maintained or in a reasonably usable form or forms.
` (C) Electronically Stored Information Produced in Only One Form. The
`person responding need not produce the same electronically stored
`information in more than one form.
` (D) Inaccessible Electronically Stored Information. The person
`responding need not provide discovery of electronically stored information
`from sources that the person identifies as not reasonably accessible because
`of undue burden or cost. On motion to compel discovery or for a protective
`order, the person responding must show that the information is not
`reasonably accessible because of undue burden or cost. If that showing is
`made, the court may nonetheless order discovery from such sources if the
`requesting party shows good cause, considering the limitations of Rule
`26(b)(2)(C). The court may specify conditions for the discovery.
`(2) Claiming Privilege or Protection.
` (A) Information Withheld. A person withholding subpoenaed information
`under a claim that it is privileged or subject to protection as trial-preparation
`material must:
` (i) expressly make the claim; and
` (ii) describe the nature of the withheld documents, communications, or
`tangible things in a manner that, without revealing information itself
`privileged or protected, will enable the parties to assess the claim.
` (B) Information Produced. If information produced in response to a
`subpoena is subject to a claim of privilege or of protection as
`trial-preparation material, the person making the claim may notify any party
`that received the information of the claim and the basis for it. After being
`notified, a party must promptly return, sequester, or destroy the specified
`information and any copies it has; must not use or disclose the information
`until the claim is resolved; must take reasonable steps to retrieve the
`information if the party disclosed it before being notified; and may promptly
`present the information under seal to the court for the district where
`compliance is required for a determination of the claim. The person who
`produced the information must preserve the information until the claim is
`resolved.
`
`(g) Contempt.
`The court for the district where compliance is required—and also, after a
`motion is transferred, the issuing court—may hold in contempt a person
`who, having been served, fails without adequate excuse to obey the
`subpoena or an order related to it.
`
`For access to subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013).
`
`

`

`Case 2:17-cv-00513-JRG Document 275-3 Filed 01/09/19 Page 8 of 12 PageID #: 18546
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`ATTACHMENT A
`
`DEFINITIONS
`
`1.
`
`“Action” means AGIS Software Development, LLC v. Huawei Device
`
`USA Inc., Case No. 2:17-cv-513-JRG (Lead Case), filed in the United States District
`
`Court for the Eastern District of Texas on June 21, 2017, including all related claims,
`
`defenses, counterclaims, third- party claims, and consolidated actions.1
`
`2.
`
`“Neil Gilbert Siegel,” “Siegel,” “You,” and “Your” mean Neil Gilbert
`
`Siegel or others acting on behalf of Neil Gilbert Siegel.
`
`3.
`
`“FBCB2” means the Force XXI Battle Command Brigade and Below and
`
`all its predecessor systems.
`
`4.
`
`“Apple Defendant” means Apple Inc., including without limitation all
`
`predecessors-in-interest, successors-in-interest, parents, subsidiaries, affiliates, and all
`
`past or present officers, directors, trustees, employees, agents, consultants, attorneys,
`
`patent agents, entities acting in joint venture, licensing or partnership relationships with
`
`any of the defendants in any country, or others acting on the Apple Defendant’s behalf.
`
`5.
`
`Communication(s)” means, including its usual and customary meaning,
`
`any transmission, conveyance, or exchange of word, statement, fact, thing, idea,
`
`document, instruction, information, demand, or question by any medium, whether by
`
`written, oral, or other means, including, but not limited to, electronic communications
`
`and electronic mail.
`
`6.
`
`“Defendants” means all defendants in the cases captioned: AGIS
`
`Software Development LLC v. HTC Corp., No. 2:17-cv-00514 (E.D. Tex. June 21,
`
`1 AGIS Software Development, LLC v. Apple Inc., Case No. 2:17-cv-516-JRG (E.D. Tex. June 21, 2017)
`(Consolidated) has been consolidated with AGIS Software Development, LLC v. Huawei Device USA Inc.,
`Case No. 2:17-cv-513-JRG (E.D. Tex. June 21, 2017) (Lead Case).
`
`
`
`1
`
`

`

`Case 2:17-cv-00513-JRG Document 275-3 Filed 01/09/19 Page 9 of 12 PageID #: 18547
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`2017); AGIS Software Development LLC v. ZTE Corp., et al., No. 2:17-cv-00517 (E.D.
`
`Tex. June 21, 2017); AGIS Software Development LLC v. Huawei Device USA Inc., et
`
`al., No. 2:17-cv-00513 (E.D. Tex. June 21, 2017); and AGIS Software Development
`
`LLC v. LG Electronics, Inc., No. 2:17-cv-00515 (E.D. Tex. June 21, 2017).
`
`7.
`
`“Deposition Topics” means all requests for testimony regarding
`
`categories or topics made by AGIS Software Development, LLC to You regarding this
`
`Action, via subpoena or otherwise, including but not limited to the topics of testimony
`
`contained herein.
`
`8.
`
`“Document(s)” shall have the broadest meaning ascribed to it by Federal
`
`Rule of Civil Procedure 34 and Federal Rule of Evidence 1001, and shall include within
`
`its meaning any and all papers, videotapes or video recordings, photographs, films,
`
`recordings, memoranda, books, records, accounts, letters, correspondence, notes of
`
`meetings, notes of conversations, notes of telephone calls, inter-office memoranda or
`
`written communications of any nature, records of conversations either in writing or by
`
`means of mechanical or electrical recording device, notes, papers, reports, analyses,
`
`invoices, canceled checks or check stubs, receipts, minutes of meetings, time sheets,
`
`diaries, desk calendars, ledgers, schedules, licenses, financial statements, bills of
`
`materials, logs, and any differing version of the foregoing whether denominated formal,
`
`informal, or otherwise, as well as copies of the foregoing which differ in any way,
`
`including handwritten notations or other written or printed matter of any nature, from
`
`the original. The term “Document” shall also include all “technical documents,” such as
`
`source code, specifications, schematics, flow charts, block diagrams, circuit diagrams,
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`artwork, drawings, pictures, pictorial representations, formulas, troubleshooting guides,
`
`
`
`2
`
`

`

`Case 2:17-cv-00513-JRG Document 275-3 Filed 01/09/19 Page 10 of 12 PageID #: 18548
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`service bulletins, technical bulletins, production specification sheets, white papers,
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`operator manuals, operation manuals, and instruction manuals.
`
`9.
`
`“Eastern District of Texas” means the United States District Court for the
`
`Eastern District of Texas.
`
`10.
`
`“Entity” means, including without limitation, corporation, company,
`
`firm, partnership, joint venture, association, governmental body or agency, or Person
`
`other than a natural Person.
`
`11.
`
`“Person(s)” refers to all natural persons and all types and kinds of
`
`business or other entities, including but not limited to corporations, limited liability
`
`companies, partnerships, joint ventures, associations, sole proprietorships, government
`
`bodies, and government agencies. Any reference to an individual person, either
`
`singularly or as part of a defined group, includes that person’s employees, agents, legal
`
`and non-legal representatives, heirs, successors, assigns, and any other person or entity
`
`acting on behalf of such individual person. Any reference to a corporation or any other
`
`entity also refers to an includes any and all parents, subsidiaries, predecessors,
`
`successors, affiliates, partners, joint ventures, agents, employees, representatives,
`
`accountants, investment bankers, consultants, or attorneys, acting on behalf of the
`
`corporation or other entity. The masculine includes the feminine and vice versa; the
`
`singular includes the plural and vice versa.
`
`12.
`
`“Thing(s)” refers to any physical specimen or tangible item, including
`
`research and development models, samples, prototypes and the like.
`
`13.
`
`The terms “relate to,” “related to,” “relating to,” “reflecting,” or
`
`“concerning” or any variation thereof, shall mean relating to, referring to, concerning,
`
`
`
`3
`
`

`

`Case 2:17-cv-00513-JRG Document 275-3 Filed 01/09/19 Page 11 of 12 PageID #: 18549
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`mentioning, reflecting, regarding, pertaining to, evidencing, involving, describing,
`
`discussing, commenting on, embodying, responding to, supporting, contradicting, or
`
`constituting (in whole or in part), or are between (as in the context of communications),
`
`as the context makes appropriate.
`
`14.
`
`“And” and “or” shall be construed either disjunctively or conjunctively
`
`as necessary to bring within the scope of discovery all that might otherwise be construed
`
`to be outside of its scope.
`
`“Any” shall include “all” and “all” shall include “any.”
`
`The term “including” shall mean including without limitation.
`
`The use of the singular form of any word includes the plural and vice
`
`15.
`
`16.
`
`17.
`
`versa.
`
`18.
`
`“Day” or “date” means the exact day, month, and year, if ascertainable,
`
`or if not, the best available approximation (including a relationship to other events).
`
`19.
`
`20.
`
`The use of any tense of any word includes all other tenses.
`
`Definitions or usages of words or phrases in this document request are
`
`not intended to be, and shall not be, construed as admissions as to the meaning of words
`
`or phrases at issue in the action, and shall have no binding effect on Plaintiff in this or
`
`any other proceeding.
`
`
`
`
`
`
`
`
`
`
`
`
`
`4
`
`

`

`Case 2:17-cv-00513-JRG Document 275-3 Filed 01/09/19 Page 12 of 12 PageID #: 18550
`
`TOPICS
`
`1.
`
`The structure, operation, design, development, functionality, features,
`
`testing, and manufacture of FBCB2.
`
`2.
`
`The dates and circumstances relating to the development of FBCB2, the
`
`location of the development of FBCB2, and the identity of Person(s) and Entity
`
`involved in the development of FBCB2.
`
`3.
`
`The dates and circumstances under which FBCB2 was first publicly
`
`announced, promoted, used, made available, offered for sale, sold, and/or imported, and
`
`the Person(s) and Entity involved in each activity.
`
`4.
`
`The location and custodians of Documents related to the sale, offer for
`
`sale, marketing, promotion, advertisement, distribution, and/or importation into the
`
`United States of FBCB2.
`
`5.
`
`6.
`
`7.
`
`Your awareness of and communications regarding the Action.
`
`Communications with Apple or Defendants regarding FBCB2.
`
`The identity of any variations and/or versions of FBCB2, and systems
`
`with functionalities similar to the FBCB2.
`
`8.
`
`The identities, including, but not limited to, name and relationship to
`
`You, and locations of Persons with knowledge of the subject matter of the Topics in this
`
`Notice.
`
`9.
`
`The identity and location of any and all Documents, electronic, files,
`
`databases, and other tangible Things relating to or containing information relating to the
`
`Deposition Topics, including those Documents relied on or reviewed for the purpose of
`
`becoming knowledgeable about the Deposition Topics on which you may testify.
`
`
`
`
`
`5
`
`