Case 2:17-cv-00514-JRG Document 161-1 Filed 02/13/19 Page 1 of 7 PageID #: 14332
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`AGIS SOFTWARE DEVELOPMENT LLC,
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`Plaintiff,
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`vs.
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`HTC CORPORATION,
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`CASE NO. 2:17-CV-514-JRG
`(LEAD CASE)
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`JURY TRIAL DEMANDED
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`
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`Defendant.
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`DECLARATION OF KYLE R. CANAVERA
`IN SUPPORT OF DEFENDANT HTC CORPORATION’S
`OPPOSITION TO AGIS SOFTWARE DEVELOPMENT LLC’S
`MOTION TO STRIKE PORTIONS OF THE
`JANUARY 11, 2019, EXPERT REPORT OF DR. ANDREW WOLFE
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`Case 2:17-cv-00514-JRG Document 161-1 Filed 02/13/19 Page 2 of 7 PageID #: 14333
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`I, Kyle R. Canavera, hereby declare as follows:
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`1.
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`I am an attorney at the law firm of Perkins Coie LLP and counsel of record for
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`HTC Corporation (“HTC Corp.”) in the above entitled matter. I am a member of good standing
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`of the California and United States Patent and Trademark Bar and am admitted to practice in the
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`Eastern District of Texas.
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`2.
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`I make this declaration in support of HTC Corp.’s Opposition to AGIS Software
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`Development LLC’s Motion to Strike Portions of the January 11, 2019 Expert Report of
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`Dr. Andrew Wolfe.
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`3.
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`Attached hereto as Exhibit 1 is a true and correct copy of excerpts from the expert
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`report of Mr. Wolfe, HTC Corp.’s non-infringement expert.
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`4.
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`Attached hereto as Exhibit 2 is a true and correct copy of excerpts from the expert
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`report of Mr. McAlexander, AGIS’s infringement expert.
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`5.
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`Attached hereto as Exhibit 3 is a true and correct copy of excerpts from the source
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`code production made by Google on or about November 12, 2018.
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`6.
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`HTC Corp. is aware of two source code productions made by Google. Google
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`made the first source code production on or around November 12, 2018 (“First Google Source
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`Code Production”). Google made the second source code production on or around January 14,
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`2019 (“Second Google Source Code Production”).
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`7.
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`HTC Corp. became aware of First Google Source Code Production on November
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`7, 2018, when an Arnold & Porter attorney informed counsel for HTC Corp. of the forthcoming
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`production. Attached hereto as Exhibit 4 is a true and correct copy of the November 7, 2018
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`email on this subject matter. This email demonstrates that AGIS had also been informed of the
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`forthcoming production on that same day, November 7, 2018. AGIS informed HTC Corp. of
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`1
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`Case 2:17-cv-00514-JRG Document 161-1 Filed 02/13/19 Page 3 of 7 PageID #: 14334
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`the First Google Source Code Production on November 26, 2018. Attached hereto as Exhibit 5
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`is a true and correct copy of the November 26, 2018 email on this subject matter.
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`8.
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`HTC Corp. became aware of the Second Google Source Code Production on
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`January 14, 2019, when counsel for AGIS informed counsel for HTC Corp. of the production.
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`Attached hereto as Exhibit 6 is a true and correct copy of the January 14, 2019 email on this
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`subject matter.
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`9.
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`Representatives for HTC Corp. reviewed the Google source code productions on
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`four occasions. On November 13, 2018, an Perkins Coie attorney representing HTC Corp.
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`reviewed the First Google Source Code Production at the offices of Arnold & Porter. On
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`December 3 and 4, 2018, Perkins Coie attorneys representing HTC Corp. reviewed the First
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`Google Source Code Production at the offices of Arnold & Porter. On December 7, 2018,
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`Dr. Wolfe reviewed the First Google Source Code Production at the offices of Arnold & Porter.
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`10.
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`The four instances identified in the preceding paragraph are the only occasions
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`when representatives for HTC Corp. have reviewed the First Google Source Code Production
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`(excepting the physical printouts HTC Corp. has received, as addressed below). Representatives
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`for HTC Corp. have never reviewed the Second Google Source Code Production (excepting the
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`physical printouts HTC Corp. has received, as addressed below). HTC Corp. never had access
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`to the First Google Source Code Production prior to November 13, 2018. HTC Corp. never had
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`access to the Second Google Source Code Production prior to January 14, 2019. HTC Corp. has
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`never received access to any of the electronic files in the First Google Source Code Production or
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`the Second Google Source Code Production except for on the four occasions when HTC Corp.’s
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`representatives travelled to the offices of Arnold & Porter to review the source code productions
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`(as identified above).
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`2
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`Case 2:17-cv-00514-JRG Document 161-1 Filed 02/13/19 Page 4 of 7 PageID #: 14335
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`HTC Corp. has received printouts from the First Google Source Code Production
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`11.
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`and the Second Google Source Code Production on four occasions. Each of these is described
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`below.
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`12.
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`On November 26, 2018, counsel for AGIS informed counsel for HTC Corp. that it
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`had received source code printouts. Exhibit 5, already attached hereto, is a true and correct copy
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`of the November 26, 2018 email on this subject matter. On December 2, 2018, counsel for HTC
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`Corp. requested duplicates of the same printouts and later received them. Attached hereto as
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`Exhibit 7 is a true and correct copy of the December 2, 2018 email on this subject matter.
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`13.
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`On December 13, 2018, counsel for AGIS informed counsel for HTC Corp. that it
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`had received source code printouts. Attached hereto as Exhibit 8 is a true and correct copy of
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`the December 13, 2018 email on this subject matter. On December 13, 2018, counsel for HTC
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`Corp. requested duplicates of the same printouts and later received them. Attached hereto as
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`Exhibit 9 is a true and correct copy of the December 13, 2018 email on this subject matter.
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`14.
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`On January 24, 2019, counsel for AGIS informed counsel for HTC Corp. that it
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`had received source code printouts. Attached hereto as Exhibit 10 is a true and correct copy of
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`the January 24, 2019 email on this subject matter. On January 24, 2019, counsel for HTC Corp.
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`requested duplicates of the same printouts and later received them. Attached hereto as Exhibit
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`11 is a true and correct copy of the January 24, 2019 email on this subject matter.
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`15.
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`On January 28, 2019, counsel for HTC Corp. received source code printouts. On
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`January 28, 2019, counsel for HTC Corp. informed counsel for AGIS of the receipt of these
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`source code printouts. Attached hereto as Exhibit 12 is a true and correct copy of the January
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`28, 2019 email on this subject matter. On January 28, 2019, counsel for AGIS responded,
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`noting that it had also received the source code printouts that same day. Attached hereto as
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`3
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`Case 2:17-cv-00514-JRG Document 161-1 Filed 02/13/19 Page 5 of 7 PageID #: 14336
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`Exhibit 13 is a true and correct copy of the January 28, 2019 email on this subject matter. The
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`printouts received on January 28, 2019 included the files cited by Dr. Wolfe in footnotes 108 and
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`109 of his report, as well as a number of other printouts with which counsel for HTC Corp. are
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`not familiar.
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`16.
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`HTC Corp. has never received any printouts from the First Google Source Code
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`Production or the Second Google Source Code Production other than the four occasions
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`identified above.
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`17.
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`Other than the aforementioned source code reviews and printouts, HTC Corp. has
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`not had any access to the Google source code. Google is represented by Arnold & Porter in this
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`matter. HTC Corp. is represented by Perkins Coie in this matter. Google is not indemnifying
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`HTC Corp. in this matter.
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`18.
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`In a May 16, 2018 letter, counsel for HTC Corp. notified counsel for AGIS that
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`HTC Corp. was making its source code available for review. Attached hereto as Exhibit 14 is a
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`true and correct copy of the May 16, 2018 letter. On October 1, 2018, counsel for HTC Corp.
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`again notified counsel for AGIS that HTC Corp.’s source code had been available for review
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`since May 16, 2018. Attached hereto as Exhibit 15 is a true and correct copy of the October 1,
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`2018 email on this subject matter. On October 2, 2018, counsel for AGIS informed counsel for
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`HTC Corp. that AGIS’s representative, Omid Kia, would be reviewing the HTC Corp. source
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`code production on October 3, 2018. Attached hereto as Exhibit 16 is a true and correct copy of
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`the October 2, 2018 email on this subject matter. Mr. Kia did in fact review the HTC Corp.
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`source code production on that date. AGIS has not requested printouts of any of the HTC Corp.
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`source code production.
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`Case 2:17-cv-00514-JRG Document 161-1 Filed 02/13/19 Page 6 of 7 PageID #: 14337
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`Attached hereto as Exhibit 17 is a true and correct copy of excerpts from the
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`19.
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`transcript of the deposition of Andrew Wolfe, taken of February 1, 2019.
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`20. With reference to Exhibit 2, Mr. McAlexander cites to files from the First Google
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`Source Code Production in Attachment A to his report in the following page ranges: A-a21, A-
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`a49–A-a53, A-a59–A-a62, A-a66, A-a68–A-a69, A-a72–A-a74, A-a84–A-a85, A-a89–A-a91, A-
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`a96–A-a98, A-a101–A-a103, A-a105–A-a106, A-a109–A-a111, A-a113, A-a116. I have
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`counted approximately 59 source code file citations (non-unique) in these ranges. Mr.
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`McAlexander’s Attachment A includes his analysis of infringement for the ’970 patent. Mr.
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`McAlexander’s attachments relating to the other three patents also cite to files from the First
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`Google Source Code Production. (See Ex. 2 at B7–B9, C7–C8, D7–D8.) I have not counted
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`the number of source code file citations in those attachments.
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`21.
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`On December 19, 2018, AGIS served amended infringement contentions for the
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`’970 patent. The amended infringement contentions contained no citations to files from the
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`First Google Source Code Production or the Second Google Source Code Production. Attached
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`hereto as Exhibit 18 is a true and correct copy of excerpts from AGIS’s December 19, 2018
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`amended infringement contentions. The excerpts show the claim charts for several claim
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`features of ’970 patent, including the claim 1 feature of “a forced message alert software
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`application program . . .” (see p. A-8), which corresponds to cited portions of source code in Mr.
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`McAlexander’s report (see Ex. 2 at A-a21). The excerpts are exemplary, and HTC Corp. can
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`provide the complete December 19, 2018 amended infringement contentions at the Court’s
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`preference. AGIS has not served amended infringement contentions for any other patent. The
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`original infringement contentions, served January 19, 2018, contained no citations to files from
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`the First Google Source Code Production or the Second Google Source Code Production.
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`Case 2:17-cv-00514-JRG Document 161-1 Filed 02/13/19 Page 7 of 7 PageID #: 14338
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`Attached hereto as Exhibit 19 is a true and correct copy of excerpts from HTC
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`22.
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`Corp.’s First Set of Interrogatories, dated May 18, 2018.
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`23.
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`Attached hereto as Exhibit 20 is a true and correct copy of excerpts from HTC
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`Corp.’s Second Set of Interrogatories, dated November 7, 2018.
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`24.
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`Attached hereto as Exhibit 21 is a true and correct copy of excerpts from AGIS’s
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`Second Supplemental Responses to HTC Corp.’s First Set of Interrogatories, dated December 7,
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`2018.
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`25.
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`Attached hereto as Exhibit 22 is a true and correct copy of excerpts from AGIS’s
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`Responses to HTC Corp.’s Second Set of Interrogatories, dated December 7, 2018.
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`I declare under penalty of perjury that the foregoing is true and correct.
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`Executed this 11th day of February, 2019, in San Diego, California.
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`/s/ Kyle R. Canavera
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