Case 2:17-cv-00514-JRG Document 263 Filed 03/04/19 Page 1 of 11 PageID #: 21120
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`FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER
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`IN THE UNITED STATES DISTRICT COURT FOR
`THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`CASE NO. 2:17-cv-514-JRG
`(Lead Case)
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`JURY TRIAL DEMANDED
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`CASE NO. 2:17-CV-515-JRG
`(Member Case)
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`JURY TRIAL DEMANDED
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`§§§§§§§§§
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`§§§§§§§§§
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`§§
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`AGIS SOFTWARE DEVELOPMENT, LLC
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`Plaintiff,
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`v.
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`HTC CORPORATION, et al.
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`Defendant.
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`AGIS SOFTWARE DEVELOPMENT, LLC
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`Plaintiff,
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`v.
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`LG ELECTRONICS INC.
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`Defendant.
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`LG ELECTRONICS INC.’S SUR-REPLY TO AGIS’S MOTION TO STRIKE
`PORTIONS OF THE JANUARY 11, 2019 EXPERT REPORT OF EDWARD R. TITTEL
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`Case 2:17-cv-00514-JRG Document 263 Filed 03/04/19 Page 2 of 11 PageID #: 21121
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`TABLE OF CONTENTS
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`Page
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`THERE IS NO DISPUTE THAT AGIS INSPECTED THE CHALLENGED
`SOURCE CODE DURING THE FACT DISCOVERY PERIOD ..................................... 1
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`AGIS CANNOT SHOW ANY COGNIZABLE HARM FROM MR. TITTEL’S
`RELIANCE ON INFORMATION OBTAINED FROM WILLIAM LUH AND
`MICAH MASON ................................................................................................................ 3
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`I.
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`II.
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`i
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases
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`Goodloe v. Daphne Utilities,
`No. Civ. A. 13-0605-WS-C, 2015 WL 2165806 (S.D. Ala. May 7, 2015), aff’d
`sub nom. Nettles v. Daphne Utilities, 689 F. App’x 925 (11th Cir. 2017) ................................4
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`Supreme Showroom, Inc. v. Branded Apparel Grp. LLC,
`No. 16 Civ. 5211 (PAE), 2018 WL 3148357 (S.D.N.Y. June 27, 2018)...................................4
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`Other Authorities
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`Fed. R. Civ. P. 37 .............................................................................................................................3
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`ii
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`LG Electronics Inc. (“LG Korea”) respectfully requests that the Court deny AGIS’s
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`Motion to Strike the January 11, 2019 Expert Report of Edward R. Tittel (“Motion”) (D.I. 110).
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`First, AGIS does not dispute that, during the fact discovery window, it already had access
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`to and reviewed the very Google source code that it now seeks to strike from Mr. Tittel’s report.
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`Instead, AGIS asserts that Mr. Tittel had the code before AGIS did, which is both untrue and also
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`no basis to exclude Mr. Tittel’s reliance on produced code.
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`Second, while AGIS asserts without explanation or support that it was prejudiced by Mr.
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`Tittel’s reliance on Google witnesses, AGIS does not dispute that it was indeed aware that
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`Google was a source of evidence from the very outset of this case. AGIS also does not dispute
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`that it knew of LG Korea’s specific reliance on declaration testimony from Mr. Luh and Mr.
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`Mason’s predecessor, Mr. Oplinger. Nor does AGIS even acknowledge that it served 30(b)(6)
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`deposition subpoenas to Google that would have resulted in the depositions of the challenged
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`Google witnesses, but simply chose not to take the depositions. Even now, AGIS has ignored
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`Google’s offer to depose the witnesses. AGIS can show no prejudice from Mr. Tittel’s reliance
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`on Google witnesses that AGIS declined the opportunity to depose.
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`I.
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`THERE IS NO DISPUTE THAT AGIS INSPECTED THE CHALLENGED
`SOURCE CODE DURING THE FACT DISCOVERY PERIOD
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`AGIS does not dispute that Google’s source code, including the
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`file it seeks to strike, was made available for AGIS’s inspection during the fact discovery period,
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`or that its reviewer, Mr. Rahul Vijh, inspected Google’s source code machine during the fact
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`discovery period. It is also undisputed that while Mr. Vijh requested printouts of certain source
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`code files,
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` was not among them, even
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`though it was available at the time he inspected. Both AGIS and LG Korea had access to and
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`1
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`reviewed the same source code, including the
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`file it seeks to strike.
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`AGIS’s assertion that it was “sandbagged” is entirely meritless.
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`AGIS, in its reply, pushes its case by mischaracterizing the testimony of LG Korea’s
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`technical expert, Mr. Tittel. (See D.I. 191 at 1.). At his deposition, Mr. Tittel confirmed that the
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` source code file was available to
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`him in November. (D.I. 191-2, Ex. A at 97:17-98:3). But it does not follow, as AGIS claims,
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`that Mr. Tittel ‘admitted’ having the source code months before AGIS did. (D.I. 191 at 1-2).
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`AGIS reviewed the source code at the same time as LG Korea in November and December 2018.
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`(D.I. 150-1 ¶¶ 3-5, 7), and it is undisputed that this file was available for its review at that time.
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`AGIS’s argument seems to rest on the premise that code is not actually produced until it is
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`printed. But that flies in the face of the agreed protective order in this matter, which provides for
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`production of source code on a secure computer available for inspection (Case No. 2:17-cv-
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`00513, D.I. 119 at 11), and contains no requirement that the producing party (here, Google),
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`must provide printouts of all the code it makes available on the source code computer. Nor is it
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`true that Mr. Tittel had access to a printed version of the source code file at that time; rather, he
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`had the same access to electronic source code that AGIS had during and around the weeks of
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`November 15, 2018 and December 11, 2018. (D.I. 150-1 ¶¶ 3-5, 7; see also Berta Decl.1, Ex. A
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`at 117:23-118:7). Furthermore, both AGIS and LG Korea received the printed version of the
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`source code file around the same time in January 2019. (D.I. 150-1 ¶¶ 8, 12).
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`AGIS’s request to strike rests on the false premise that making code available for
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`inspection is not production, and on the assertion that Mr. Tittel had a printout of certain code
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`1 “Berta Decl.” refers to the Declaration of Michael A. Berta in support of Defendant LG
`Electronics Inc.’s Sur-Reply, submitted herewith.
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`2
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`months before AGIS did, which is not only incorrect, but also irrelevant given the identical
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`availability to both sides of the code file. AGIS’s request should be denied.
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`II.
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`AGIS CANNOT SHOW ANY COGNIZABLE HARM FROM MR. TITTEL’S
`RELIANCE ON INFORMATION OBTAINED FROM WILLIAM LUH AND
`MICAH MASON
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`As an initial matter, AGIS incorrectly asserts that LG Korea admitted that it “failed to
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`disclose William Luh and Micah Mason.” (D.I. 191 at 2). LG Korea provided more than
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`adequate disclosure of its reliance on Google witnesses who have knowledge related to the
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`functionality implicated in the accused applications. Not only did it clearly disclose its intent to
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`rely on Google witnesses, (D.I. 150-10 at 4; D.I. 110-12 at 4; D.I. 110-13 at 5; D.I. 110-14 at 5;
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`D.I. 110-15 at 5), LG Korea specifically relied upon and cited to declaration testimony from
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`William Luh, the Technical Lead Manager and Software Engineer at Google responsible for Find
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`My Device well before the close of discovery. (See, e.g., 513 D.I. 46 at 7-8 (citing 513 D.I. 36-
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`5); see also 513 D.I. 77 at 7 n.3 (citing 513 D.I. 74-9)). LG Korea also relied upon and cited
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`declaration testimony from Micah Mason’s predecessor, Andrew Oplinger, regarding
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`information related to Location Sharing on the Google Maps application. (See, e.g., 513 D.I. 46
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`at 7-8 (citing 513 D.I. 36-4); 513 D.I. 77 at 7 n.3, 4 (citing 513 D.I. 74-8)).
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`Furthermore, AGIS misconstrues the law. AGIS asserts that exclusion of the
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`contributions of William Luh and Micah Mason to Mr. Tittel’s report “should be automatic and
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`mandatory under Rule 37(c)(1)” because LG Korea allegedly failed to identify them. (D.I. 191 at
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`2). But, even had AGIS not already been on notice, Federal Rule of Civil Procedure 37 does not
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`mandate exclusion. Rule 37 provides that a party is permitted to use information or witnesses to
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`supply evidence when a non-disclosure “was substantially justified or is harmless.”
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`As explained in LG Korea’s Opposition to AGIS’s Motion, any late formal identification
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`of William Luh and Micah Mason is harmless. (D.I. 150 at 10-12). Despite repeated claims of
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`3
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`prejudice, AGIS still fails to identify what prejudice it suffered from LG Korea’s identification
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`of Messrs. Luh and Mason, particularly in light of its decision to forego obtaining any deposition
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`testimony from Google. AGIS’s conclusory allegations that it will suffer substantial prejudice
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`are not substantiated by facts and should not hold any weight. (D.I. 191 at 2). See Supreme
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`Showroom, Inc. v. Branded Apparel Grp. LLC, No. 16 Civ. 5211 (PAE), 2018 WL 3148357, at
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`*14 (S.D.N.Y. June 27, 2018) (finding no prejudice where movant “has identified none except in
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`the most conclusory terms”); Goodloe v. Daphne Utilities, No. Civ. A. 13-0605-WS-C, 2015 WL
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`2165806, at *5 (S.D. Ala. May 7, 2015) (“The conclusory allegation of ‘prejudice’ does not
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`appear to be substantiated by facts.”), aff’d sub nom. Nettles v. Daphne Utilities, 689 F. App’x
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`925 (11th Cir. 2017).
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`And, AGIS’s own actions confirm that there was no prejudice to AGIS. AGIS was
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`notified of LG Korea’s reliance on Google witnesses at the outset of the case, through LG
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`Korea’s Initial Disclosures, Supplemental Initial Disclosures, and specific citation to the
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`declaration testimony of Mr. Luh and Mr. Mason’s predecessor. Despite knowing that Google
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`witnesses would likely have relevant information regarding the Google technology that is at
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`issue in this case, AGIS chose not to depose any Google witnesses with knowledge during the
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`discovery period even though it had issued a deposition subpoena to Google and inspected
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`Google source code. Indeed, AGIS has declined to depose either witness to this day, even
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`though Google has offered them for deposition. (D.I. 150-1 ¶¶ 15-19). Where AGIS has
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`repeatedly declined to depose these witnesses, or even meet and confer regarding their
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`depositions, AGIS cannot show that anything would have been different had the witnesses been
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`formally named on the disclosure form, instead of identified through Google LLC and through
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`Google’s declarations.
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`4
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`AGIS’s argument that “[e]xclusion of the testimony will not cause significant hardship to
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`LG . . . and LG should be able to rely on other evidence” is also incorrect. (D.I. 191 at 3).
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`Information regarding the operation, design, and functionality of the accused Google application
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`is proprietary to Google. LG Korea stated that “third-party witnesses, including, for instance, the
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`majority of Google witnesses” were expected to be “key (and the only) sources of evidence
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`regarding the operation, design, and function of the Google applications identified in the
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`Complaint.” (513 D.I. 46 at 23) (emphasis added). Requiring LG Korea to defend itself against
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`allegations of infringement based solely on Google technology while excluding evidence from
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`the Google engineers with knowledge of the accused applications would be unfair and
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`prejudicial to LG Korea.
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`For the reasons described above and in LG Korea’s Opposition, AGIS’s Motion should
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`be denied.
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`Dated: February 27, 2019
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`Respectfully submitted,
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`By:
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`/s/ Michael A. Berta
`J. Mark Mann (SBN: 12926150)
`G. Blake Thompson (SBN: 24042033)
`MANN TINDEL THOMPSON
`300 West Main Street
`Henderson, Texas 75652
`Tel: (903) 657-8540
`mark@themannfirm.com
`blake@themannfirm.com
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`Michael A. Berta
`ARNOLD & PORTER KAYE SCHOLER LLP
`Three Embarcadero Center, 10th Floor
`San Francisco, CA 94111-4024
`Tel: (415) 471-3277
`Michael.Berta@arnoldporter.com
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`5
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`Matthew M. Wolf
`ARNOLD & PORTER KAYE SCHOLER LLP
`601 Massachusetts Ave, NW
`Washington, DC 20001-3743
`Tel: (202) 942-5000
`Matthew.Wolf@arnoldporter.com
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`James S. Blackburn
`Nicholas H. Lee
`Justin J. Chi
`ARNOLD & PORTER KAYE SCHOLER LLP
`777 South Figueroa Street, 44th Floor
`Los Angeles, CA 90017-5844
`Tel: (213) 243-4156
`James.Blackburn@arnoldporter.com
`Nicholas.Lee@arnoldporter.com
`Justin.Chi@arnoldporter.com
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`Bonnie Phan
`ARNOLD & PORTER KAYE SCHOLER LLP
`3000 El Camino Real
`Five Palo Alto Square, Suite 500
`Palo Alto, CA 94306-3807
`Tel: (650) 319-4500
`Bonnie.Phan@arnoldporter.com
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`Attorneys for Defendant LG Electronics Inc.
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`6
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that counsel of record who are deemed to have
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`consented to electronic services are being served with a copy of this document via the Court’s
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`CM/ECF system per Local Rule CV-5(a)(3) on February 27, 2019.
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`/s/ Michael A. Berta
` Michael A. Berta
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`Case 2:17-cv-00514-JRG Document 263 Filed 03/04/19 Page 11 of 11 PageID #: 21130
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`FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER
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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 paragraphs 26 and 27 of the Protective Order entered in this case.
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`/s/ Michael A. Berta
` Michael A. Berta
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