Case 2:17-cv-00514-JRG Document 262 Filed 03/04/19 Page 1 of 8 PageID #: 21112
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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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`DEFENDANT HTC CORPORATION’S SUR-REPLY IN 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 262 Filed 03/04/19 Page 2 of 8 PageID #: 21113
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`AGIS’s Reply (Dkt. No. 194) is largely a reprise of its Motion (Dkt. No. 107) with
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`several misstatements concerning HTC Corp.’s Opposition (Dkt. No. 152) added. HTC Corp.
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`addresses AGIS’s misstatements in turn.
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`AGIS states that “HTC does not dispute that it violated the Court’s discovery order.”
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`(Reply, p. 1.) Yes, it does. HTC Corp. addressed every single discovery rule or order that AGIS
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`alleged HTC Corp. to have violated and explained why HTC Corp. did not violate the provision,
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`and if it had, then why any supposed violation was harmless. (Opposition at pp. 7–11.) HTC
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`Corp. absolutely disputes that it violated any of the Court’s orders.
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`AGIS states that: “HTC attempts to sandbag AGIS by including late-produced Google
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`source code files in its expert report,” which supposedly prejudiced AGIS because AGIS could
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`not review those files without traveling to access the source code review computer at Arnold &
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`Porter’s offices. (Reply, p. 1.) This is absolutely wrong. First, HTC Corp. explained that the
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`omission of printing the files cited in footnotes 108 and 109 was inadvertent and discovered only
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`leading up to the expert report submission; it was not based on any attempt to sandbag AGIS.
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`(See Reply, Ex. D.) Second, nothing required AGIS to travel to the source code computer to
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`request printouts; AGIS had the filenames and filepaths and could have requested that the files
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`be printed the day after it received Mr. Wolfe’s report if AGIS felt it necessary. HTC Corp.
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`requested source code printouts by email in every single instance that HTC Corp. received
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`printouts. AGIS could have done the same.
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`AGIS states that: “HTC’s explanation is inconsistent with the facts” because AGIS does
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`not understand how Dr. Wolfe included “excerpts” from the files cited in footnotes 108 and 109
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`in his report if HTC Corp. did not have printouts of those files. (Reply, p. 1.) “The origin of the
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`source code excerpts at issue thus remains unanswered.” (Reply at p. 2.) There is nothing
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`Case 2:17-cv-00514-JRG Document 262 Filed 03/04/19 Page 3 of 8 PageID #: 21114
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`unanswered about this situation. First, Dr. Wolfe did not include “excerpts” of the files cited in
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`footnotes 108 and 109, he included a single URL value from one of those files. Second, HTC
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`Corp.’s source code reviewers took notes during their review, as is permitted by the Protective
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`Order and as is customary for source code review.
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` AGIS then moved on without asking any follow-up questions. If AGIS now feels
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`that some question about this process went unanswered, then that is AGIS’s fault for not having
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`asked it.
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`AGIS states regarding the January 28 source code printouts that: “The new printouts were
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`received by AGIS after this Motion without any accompanying explanation, including who
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`requested such printouts, and AGIS was forced to investigate the contents and sources of the new
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`printouts.” (Reply, p. 2.) This is patently false, which is demonstrated by one of AGIS’s own
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`exhibits to its Reply. AGIS and HTC Corp. received the printouts on the same day, and counsel
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`for HTC Corp. sent an email to AGIS reporting receipt of the printouts on the same day, without
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`any previous inquiry from AGIS. (See Reply, Ex. D, p. 3.) Counsel for HTC Corp. identified
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`specifically the Bates range corresponding to the files that it had requested to be printed. (Id.)
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`AGIS did not have to “investigate the contents and sources” of the printouts; HTC Corp. told it
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`specifically that information without prompting.
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`AGIS implies that HTC Corp. identified the relevance of the files cited in footnotes 108
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`and 109 as early as November 13, 2018. (Reply, p. 2.) Dr. Wolfe never even reviewed the
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`source code until December 7. (Opposition, p. 4.) And HTC Corp. explained that the relevance
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`of the files combined with the realization that they had not already been printed only became
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`clear as Dr. Wolfe prepared his report. (See Reply, Ex. D.) HTC Corp. then identified those
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`Case 2:17-cv-00514-JRG Document 262 Filed 03/04/19 Page 4 of 8 PageID #: 21115
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`files at the next available opportunity, the service of Dr. Wolfe’s report. HTC Corp. was not
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`trying to hide this information from AGIS.
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`AGIS suggests that it somehow was not bound by the Discovery Order when it printed 19
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`source code files in late-January 2019, apparently because Google had produced source code late
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`after “months of correspondence” regarding source code production. (Reply, p. 2.) HTC Corp.
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`cannot find any provision in the Discovery Order that somehow excuses AGIS’s January
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`printouts while also condemning HTC Corp.’s earlier January printouts. In any case, any late
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`production by Google is attributable only to AGIS. It is common knowledge in litigations such
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`as this one that a third-party does not readily turn over confidential information in response to a
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`subpoena without thorough negotiation of the scope. That is all the more so with source code. If
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`AGIS wanted Google to produce source code during fact discovery, then AGIS should not have
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`waited until three months before the close of fact discovery to subpoena the material.
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`AGIS now admits that it waited 19 days to tell HTC Corp. that it had access to the first
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`Google source code production but excuses this violation of the Discovery Order based on
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`“resolution of a potential conflict” with AGIS’s expert. (Reply, p. 3.) Again, there is no
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`provision of the Discovery Order that excuses AGIS’s delay.
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`AGIS states that: “AGIS raised issues with HTC’s expert report and inclusion of
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`unproduced source code during the required meet and confer, yet HTC did not take any steps to
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`resolve any of these issues or provide any basis for its failure to comply with the discovery
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`obligations of this Court.” (Reply, p. 3.) First, AGIS did not seek to meet and confer until the
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`afternoon before filing the Motion. AGIS filed the Motion the next day. AGIS then received the
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`printouts of the complained-about files the next business day. HTC Corp. could at most have cut
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`one business day off the delivery of the requested printouts. Second, AGIS did not disclose to
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`Case 2:17-cv-00514-JRG Document 262 Filed 03/04/19 Page 5 of 8 PageID #: 21116
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`HTC Corp. which files it was complaining about during the meet and confer. Hence AGIS’s
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`supposed compliance with the Court’s conferral requirements was nominal at best; HTC Corp.
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`could not remedy the supposed non-production of source code files when AGIS did not tell HTC
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`Corp. which files it was talking about.
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`With respect to the publicly-available RequestQueue.java file, AGIS again misconstrues
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`the facts to suggest that HTC Corp. was aware of the relevance of that file since November 13,
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`2018. (Reply, p. 4.) Again, Dr. Wolfe realized the relevance of that webpage while preparing
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`his report, and HTC Corp. identified it at the first opportunity when serving Dr. Wolfe’s report.
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`AGIS excuses its own citation to publicly available websites for Android APIs because
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`“several other addresses from the same publicly-available website,
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`https://developers.google.com/ were identified” in AGIS’s earlier infringement contentions and
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`in document productions. (Reply, p. 4.) This position has zero merit. A simple search shows
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`that there are about 207,000 webpages on developers.google.com.1 So AGIS’s position is
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`apparently that its identification of a handful of webpages from that domain put the onus on HTC
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`Corp. to find the ones that it would not ultimately cite until service of Mr. McAlexander’s report,
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`among the 206,995 or so other webpages that AGIS did not cite. This argument truly illuminates
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`the degree to which AGIS wants to live by “do what I say, not what I do.”
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`And to make the point clearer, AGIS does not even respond to several of the most
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`egregious violations of the Discovery Order that HTC Corp. identified in the Opposition: AGIS’s
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`59 citation to source code files never included in its infringement contentions; and AGIS’s 100
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`citations to source code files for claim features that HTC Corp. served a specific interrogatory on
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`1 Determined by performing the following search: site:developers.google.com, which returns all
`indexed webpages from the indicated domain.
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`Case 2:17-cv-00514-JRG Document 262 Filed 03/04/19 Page 6 of 8 PageID #: 21117
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`the basis for infringement but for which AGIS cited no source code files. (Opposition, pp. 11–
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`12.)
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`AGIS’s Reply changes nothing present in the Opposition. AGIS is still trying to enforce
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`a discovery standard that it has not seen fit to live by itself. HTC Corp. respectfully requests that
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`the Court deny the Motion.
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`Case 2:17-cv-00514-JRG Document 262 Filed 03/04/19 Page 7 of 8 PageID #: 21118
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`Dated: February 27, 2019
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`Respectfully submitted,
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`/s/ Kyle R. Canavera
`Matthew C. Bernstein (Lead Attorney)
`CA State Bar No. 199240
`mbernstein@perkinscoie.com
`Miguel J. Bombach
`CA State Bar No. 274287
`mbombach@perkinscoie.com
`Kyle R. Canavera
`CA State Bar No. 314664
`kcanavera@perkinscoie.com
`PERKINS COIE LLP
`11452 El Camino Real, Suite 300
`San Diego, CA 92130-2080
`Tel: (858) 720-5700
`Fax: (858) 720-5799
`
`Eric H. Findlay (Texas Bar No. 00789886)
`Brian Craft (Texas Bar No. 04972020)
`FINDLAY CRAFT, P.C.
`102 N. College Ave., Ste. 900
`Tyler, TX 75702
`Email: efindlay@findlaycraft.com
`Email: bcraft@findlaycraft.com
`Tel: (903) 534-1100
`Fax: (903) 534-1137
`
`ATTORNEYS FOR DEFENDANT
`HTC CORPORATION
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`Case 2:17-cv-00514-JRG Document 262 Filed 03/04/19 Page 8 of 8 PageID #: 21119
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a true and correct copy of the above and foregoing
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`document has been served on February 27, 2019, to all counsel of record who are deemed to
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`have consented to electronic service via the Court’s CM/ECF system per Local Rule CV-5(a)(3).
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` /s/ Kyle R. Canavera
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`CERTIFICATE OF AUTHORIZATION TO FILE UNDER SEAL
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`This certifies, pursuant to Local Rule CV-5(a)(7), this document is authorized to be filed
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`Under Seal pursuant to a Protective Order [#119] entered April 10, 2018.
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` /s/ Kyle R. Canavera
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