Case 2:17-cv-00514-JRG Document 220 Filed 02/21/19 Page 1 of 9 PageID #: 19151
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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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`v.
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`HTC CORPORATION,
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`Defendant.
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`Case No. 2:17-CV-0514-JRG
`(LEAD CASE)
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`JURY TRIAL DEMANDED
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`PLAINTIFF AGIS SOFTWARE DEVELOPMENT LLC’S REPLY RE
`OPPOSED MOTION TO STRIKE PORTIONS OF THE JANUARY 11, 2019
`EXPERT REPORT OF DR. ANDREW WOLFE (DKT. 107)
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`
`Plaintiff,
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`
`
`v.
`
`
`HTC CORPORATION,
`
`
`Defendant.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`Case No. 2:17-CV-0514-JRG
`(LEAD CASE)
`
`JURY TRIAL DEMANDED
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`
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`
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`PLAINTIFF AGIS SOFTWARE DEVELOPMENT LLC’S REPLY RE
`OPPOSED MOTION TO STRIKE PORTIONS OF THE JANUARY 11, 2019
`EXPERT REPORT OF DR. ANDREW WOLFE (DKT. 107)
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`Case 2:17-cv-00514-JRG Document 220 Filed 02/21/19 Page 2 of 9 PageID #: 19152
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`In support of its Opposition to AGIS’s Motion to Strike, HTC argues that (1) the Google
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`source code files that HTC’s expert, Dr. Wolfe, relies on were produced by Google to both
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`parties; and (2) that HTC did not became “aware of the relevance” of the open-source source
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`code files until after Dr. Wolfe analyzed and reviewed the Google source code.
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`HTC does not dispute that it violated the Court’s discovery order. HTC does not dispute
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`that it failed to seek leave to produce late discovery. HTC does not dispute that the non-
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`produced source code printouts were relied on by Dr. Wolfe in his report and were not produced
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`to AGIS until the day after this Motion was filed. Dkt. 152 at 1.
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`HTC attempts to sandbag AGIS by including
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`justification fails because HTC cannot dispute that AGIS would have no way of obtaining the
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`files without seeking additional review of Google’s source code review machine.
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` HTC’s explanation is inconsistent with the facts. Dr. Wolfe cites to and
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`includes excerpts of the non-produced source code printouts in his report.
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`Case 2:17-cv-00514-JRG Document 220 Filed 02/21/19 Page 3 of 9 PageID #: 19153
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` The origin of the source code excerpts at issue thus remains
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`unanswered.
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`In an apparent attempt to improve its position without addressing the prejudice to AGIS,
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`HTC and Google served new printouts of the non-produced source code files on the Monday
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`following AGIS’s filing of the instant Motion. The new printouts were received by AGIS after
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`this Motion without any accompanying explanation, including who requested such printouts, and
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`AGIS was forced to investigate the contents and sources of the new printouts. HTC now admits
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`that the code files corresponding to the non-produced source code printouts “were of interest at
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`the time,” which underscores HTC’s knowledge of the importance of these files since at least
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`November 13th and HTC failed to serve AGIS with printed copies of the code of interest.
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`HTC’s concession—that it did not “realize” the code files needed to be printed and served to
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`AGIS—does not correct the prejudice to AGIS. HTC instead tries to raise a strawman argument
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`that the Google source code was “produced” to all parties, and AGIS suffers no prejudice
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`because it merely cites to “two unprinted source code files” where AGIS printed “19 different
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`source code files after the close of fact discovery.”
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`its delay, other than to prevent AGIS from reviewing the admittedly relevant information earlier
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` HTC has no such explanation for
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`2
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`Case 2:17-cv-00514-JRG Document 220 Filed 02/21/19 Page 4 of 9 PageID #: 19154
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`during the discovery period. Further, HTC fails to acknowledge that where any source code
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`printouts were sought by AGIS from Google, counsel for AGIS notified HTC.
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`HTC discloses to AGIS for the first time, that it had reviewed the source code on four
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`separate occasions, last reviewed by Dr. Wolfe on December 7, 2018. See Dkt. 152 at 4.
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`However, HTC provides no basis for why, had HTC felt this code was of importance, it did not
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`seek printouts or inform AGIS that it intended to rely on such code.
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`Instead, HTC seems to focus on the actions of AGIS to argue that HTC’s actions were not
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`prejudicial, and “AGIS’s motion reeks of hypocrisy” because (1) “AGIS waited nineteen days to
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`inform HTC Corp. that AGIS had access to the Google source code files;” and (2) “AGIS has
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`printed source code from approximately 19 different Google source code files after not only the
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`end of fact discovery, but after all expert reports were already served.” Dkt. 152 at 11-12. First,
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`AGIS promptly informed HTC of the availability of Google source code for review following
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`resolution of a potential conflict which prevented AGIS’s expert from reviewing the source code.
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`Second, as stated above, any delays in production of source code came not from AGIS, but from
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`Google. Further, HTC’s arguments seem to suggest that it had ultimately received printouts
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`without admission that it was HTC itself who had sought the printouts following AGIS’s motion.
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`Dkt. 152 at 8.
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` HTC’s assertions
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`Case 2:17-cv-00514-JRG Document 220 Filed 02/21/19 Page 5 of 9 PageID #: 19155
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`that AGIS’s allegations are not “grounded in fact,” and “AGIS could have saved the Court and
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`the parties a lot of time had AGIS actually met and conferred in good faith on this issue” again
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`HTC’s argument with regard to the publicly-available source code are also without merit.
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`HTC alleges that “its relevance was only realized based upon analysis of the Google source
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`code.” Dkt. 152 at 12. However, HTC has conceded that it had first inspected the Google source
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`code on November 13, 2018, and Dr. Wolfe and HTC last inspected the source code on
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`December 7, 2018. HTC’s argument that it did not realize the significance of this file and its
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`representation that it is a “publicly available website” does not excuse it from its discovery
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`obligations. Further, HTC’s attempts to divert attention to Mr. McAlexander’s citations to
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`publicly-available resources are without merit because several other addresses from the same
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`publicly-available website, https://developers.google.com/ were identified in AGIS’s
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`infringement contentions as early as January 19, 2018. See Ex. E, Exhibit B to Plaintiff’s
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`Disclosure of Asserted Claims and Infringement Contentions, dated January 19, 2018. Further,
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`several pages from this publicly-available resource were produced to HTC prior to the close of
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`fact discovery. See Ex. F, AGISTX_00278454; Ex. G, AGISTX_00278467; Ex. H,
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`AGISTX_00278506. .
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`For the foregoing reasons, AGIS respectfully requests that the Court grant AGIS’s
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`motion to strike portions of the January 11, 2019 Wolfe Report based on unproduced source
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`code.
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`4
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`Case 2:17-cv-00514-JRG Document 220 Filed 02/21/19 Page 6 of 9 PageID #: 19156
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`Dated: February 19, 2019
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`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
`NY Bar No. 5040019
`Email: amessing@brownrudnick.com
`Shahar Harel
`NY Bar No. 4573192
`Email: sharel@brownrudnick.com
`John A. Rubino
`NY Bar No. 5020797
`Email: jrubino@brownrudnick.com
`Enrique W. Iturralde
`NY Bar No. 5526280
`Email: eiturralde@brownrudnick.com
`Timothy J. Rousseau
`NY Bar No. 4698742
`Email: trousseau@brownrudnick.com
`Daniel J. Shea, Jr.
`NY Bar No. 5430558
`Email: dshea@brownrudnick.com
`Justine Minseon Park
`NY Bar No. 5604483
`Email: apark@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
`Email: sbaxter@mckoolsmith.com
`Jennifer L. Truelove
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`5
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`Case 2:17-cv-00514-JRG Document 220 Filed 02/21/19 Page 7 of 9 PageID #: 19157
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`Texas State Bar No. 24012906
`Email: 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
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`6
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`Case 2:17-cv-00514-JRG Document 220 Filed 02/21/19 Page 8 of 9 PageID #: 19158
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`CERTIFICATE OF AUTHORIZATION TO FILE UNDER SEAL
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`The undersigned certifies that the foregoing document is authorized to be filed under seal
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`pursuant to the Protective Order entered in this case.
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`/s/ Vincent J. Rubino, III
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` Vincent J. Rubino, III
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`7
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`Case 2:17-cv-00514-JRG Document 220 Filed 02/21/19 Page 9 of 9 PageID #: 19159
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that, on February 19, 2019, all counsel of record who
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`are deemed to have consented to electronic service are being served with a copy of this document
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`via the Court’s CM/ECF system per Local Rule CV-5(a)(3).
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`/s/ Vincent J. Rubino, III
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` Vincent J. Rubino, III
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