Case 2:21-cv-00040-JRG Document 102 Filed 10/19/21 Page 1 of 10 PageID #: 3218
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`CASE NO. 2:21-cv-00040-JRG
`(Lead Case)
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`JURY TRIAL DEMANDED
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`CASE NO. 2:21-cv-00041-JRG
`(Member Case)
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`JURY TRIAL DEMANDED
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`GESTURE TECHNOLOGY
`PARTNERS, LLC,
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`Plaintiff
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`v.
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`HUAWEI DEVICE CO., LTD.,
`HUAWEI DEVICE USA, INC.,
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`Defendants.
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`GESTURE TECHNOLOGY
`PARTNERS, LLC,
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`Plaintiff
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`v.
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`SAMSUNG ELECTRONICS CO., LTD.
`AND SAMSUNG ELECTRONICS
`AMERICA, INC.,
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`Defendants.
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`DEFENDANTS’ MOTION TO COMPEL
`SUPPLEMENTATION OF PLAINTIFF’S PRIVILEGE LOG
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`Case 2:21-cv-00040-JRG Document 102 Filed 10/19/21 Page 2 of 10 PageID #: 3219
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`I.
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`INTRODUCTION
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`Pursuant to Rule 37, Defendants request the Court to compel Plaintiff Gesture Technology
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`Partners (“GTP”) to provide a privilege log that complies fully with Rule 26(b)(5) and this Court’s
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`Discovery Order, including at least (1) providing a description of each document sufficient to allow
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`Defendants to assess whether privilege is applicable; (2) identifying and providing the affiliations
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`of all authors, recipients, and custodians of each document; and (3) identifying the entries removed
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`and the clawed-back documents added since GTP’s initial privilege log.
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`Pursuant to the Court’s Docket Control Order, GTP served its privilege log on August 15,
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`2021. On August 23, 2021, Defendants sent GTP a letter that described in detail the fundamental
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`deficiencies in the privilege log, such as failing to provide adequate description of each document
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`sufficient for Defendants to assess the claim of privilege. In the two months since, the parties have
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`met and conferred twice and Defendants have sent repeated letters requesting a compliant privilege
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`log. Although GTP supplemented and amended its privilege log once in that period, the changes
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`did not correct the deficiencies Defendants raised, but instead added hundreds more insufficiently
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`supported privilege claims. Defendants respectfully request that the Court order GTP to produce
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`immediately a privilege log complying with Rule 26(b)(5).
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`II.
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`FACTUAL BACKGROUND
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`On August 15, 2021, GTP served its privilege log. On August 23, Defendants sent GTP a
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`letter identifying fundamental deficiencies in GTP’s privilege log and requesting a supplemental
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`privilege log that (1) provides a brief description of each document’s subject matter; (2) provides
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`a sufficient description of each document to allow Defendants to assess whether any privilege is
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`applicable, including for any attachments; (3) identifies the affiliations of the authors, recipients,
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`or custodians of each document; and (4) provides a complete list of all authors and recipients of
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`each document. On August 31, GTP sent a claw-back letter requesting that Defendants delete
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`Case 2:21-cv-00040-JRG Document 102 Filed 10/19/21 Page 3 of 10 PageID #: 3220
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`thirteen documents allegedly containing privileged information and destroy all copies. Defendants
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`complied. However, GTP did not respond to the substance of Defendants’ August 23 request for
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`appropriate detail as to GTP’s claim of privilege for each document. On September 9, Defendants
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`sent GTP a letter confirming deletion and destruction of the clawed-back documents and again
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`requesting a supplemental privilege log correcting the noted deficiencies. On September 24, the
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`parties conducted a first meet and confer discussion in which GTP committed to supplementing
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`its privilege log.
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`On September 28, 2021, GTP served a supplemental and amended privilege log, adding a
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`column providing a boilerplate privilege description, adding 650 documents alleged to contain
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`privileged information, and deleting numerous other documents. Like its initial privilege log,
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`GTP’s supplemental and amended privilege log did not provided sufficient description of each
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`document to allow Defendants’ to assess whether privilege is applicable; did not identify the
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`affiliations of the authors, recipients, or custodians of each document; and did not provide a
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`complete list of all authors and recipients of each document. On October 5, Defendants sent GTP
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`another letter again highlighting these still-unaddressed deficiencies. Defendants also requested
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`that GTP identify which documents had been removed from the initial privilege log and confirm
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`those had been produced, and identify in the supplemental and amended privilege log the thirteen
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`clawed-back documents so Defendants could assess those claims of privilege.
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`On October 6, 2021, rather than addressing any of the noted deficiencies, GTP requested
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`that Defendants delete and destroy seven more documents on the basis of privilege and committed
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`that GTP would provide a supplemental privilege log including those clawed-back documents. To
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`date, GTP still has not served the promised supplemental privilege log nor has GTP committed to
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`addressing the fundamental deficiencies first raised in Defendants’ August 23 letter. On October
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`Case 2:21-cv-00040-JRG Document 102 Filed 10/19/21 Page 4 of 10 PageID #: 3221
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`12, Defendants again requested that GTP provide a supplemental privilege log and again requested
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`to meet and confer.
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`On October 15, the parties met and conferred for the second time on these issues. GTP
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`committed to serving a further supplemented privilege log that identifies all documents removed
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`from and the clawed-back documents added since GTP’s initial privilege log, and identifies and
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`provides the affiliations of all authors and recipients of the documents listed in GTP’s most recent
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`privilege log; however, GTP would not commit to serving this further amended privilege log by
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`the close of fact discovery (i.e., by October 15). (Later in the day on October 15, GTP nonetheless
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`served a second supplemental privilege log containing additional entries but still failing to include
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`all previously clawed-back documents.) Further, at the meet and confer GTP would not commit
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`to resolving the other noted deficiencies. Thus, the parties are at an impasse.
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`III. LEGAL STANDARD
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`Should a party fail to produce documents or respond to discovery obligations under Rule
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`34, the court may compel production of the requested discovery. See Fed. R. Civ. P. 37(a)(3)(B);
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`Shumpert v. City of Tupelo, 905 F. 3d 310, 325 (5th Cir. 2018). The party asserting privilege has
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`the burden of proving its applicability and thus that discovery should not be allowed. See id. at
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`*10–11; U.S. v. Harrelson, 754 F.2d 1153, 1167 (5th Cir. 1985). A party claiming privilege must
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`(1) expressly claim privilege; and (2) sufficiently describe the nature of the subject documents or
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`communications to allow the opposing party “to assess the claim.” Fed. R. Civ. P. 26(b)(5)(A).
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`A privilege log must “provide[] facts that would suffice to establish each element of the privilege
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`or immunity that is claimed.” Smartphone Techs. LLC v. Apple, Inc., Case No. 6:10-cv-74, 2013
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`U.S. Dist. LEXIS 28220, at *12–13 (E.D. Tex. Mar. 1, 2013) (internal quotations omitted).
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`Case 2:21-cv-00040-JRG Document 102 Filed 10/19/21 Page 5 of 10 PageID #: 3222
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`IV. ARGUMENT
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`GTP has failed to produce an adequate privilege log despite Defendants’ repeated letters
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`and two meet and confers between the parties, which has severely prejudiced Defendants’ ability
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`to conduct and complete discovery, including the deposition of GTP’s principal and the named
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`inventor on the Asserted Patents. GTP’s September 28, 2021 supplemental and amended privilege
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`log (excerpted in Exhibit A1) spans more than 1600 log entries (after dropping 86 documents from
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`which it previously claimed privilege 2) and suffers from at least the following fundamental
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`deficiencies: (1) it does not provide sufficient description of each document to allow Defendants’
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`to assess whether privilege is applicable, including for any attachments; (2) it does not identify the
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`affiliations of the authors, recipients, or custodians of each document; and (3) it does not provide
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`a complete list of all recipients and senders of each document. Indeed, GTP’s recent removal of
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`86 previously-identified entries from its supplemental and amended privilege log only confirms
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`that GTP has improperly withheld documents from discovery. Defendants respectfully request an
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`order compelling GTP to provide a privilege log complying with Rule 26(b)(5).
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`A.
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`GTP Has Failed to Provide Sufficient Descriptions to Allow Defendants to
`Assess GTP’s Claims of Privilege
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`GTP’s supplemental and amended privilege log does not provide sufficient description of
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`the documents to allow Defendants to assess whether privilege is applicable. Over 200 entries
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`provide mere boilerplate descriptions of why privilege applies and provide no information from
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`which to evaluate why the document is privileged. See, e.g., Exhibit A at Entries 73–84 (which
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`only identify the date of the document and the applicable privilege, but do not identify the title of
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`1 Defendants here supply only representative excerpts due to the Discovery Order’s page limits for
`discovery motions.
`2 GTP has not identified how many documents it dropped from its initial privilege log, whether it
`has produced those documents, nor what the corresponding Bates ranges are.
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`Case 2:21-cv-00040-JRG Document 102 Filed 10/19/21 Page 6 of 10 PageID #: 3223
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`the document, its author other than “Owner,” its recipients, or any description of why the document
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`is alleged to be privileged). For example,
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` Exhibit A at Entry
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`80. No title is provided, no author is provided, no recipients are provided, and no attorney is
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`identified as receiving, being cc’d, or making any communication in regards to this entry. On the
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`information provided, the attorney-client privilege does not apply—no author appears to be an
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`attorney and the entry does not indicate the document was ever sent to an attorney. Defendants
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`are unable to determine the applicability of privilege to such entries.
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`B.
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`GTP Has Failed to Identify and Provide Affiliations of All Authors, Recipients,
`and Custodians of Each Document
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`GTP’s supplemental and amended privilege log does not provide the affiliations of the
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`authors, recipients, or custodians of the listed documents sufficient to enable Defendants to assess
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`applicability of privilege for all 1665 documents listed. See Eon Corp. IP Holdings LLC v. Verizon
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`Clinton Center Drive Corp., No. 6:08-cv-00385, Dkt. No. 456 (E.D. Tex. Aug. 23, 2010) (granting
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`motion to compel privilege log and ordering plaintiff to provide “(a) a description of the documents
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`to enable Defendant to meaningfully assess the applicability of privilege and (b) the affiliations of
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`the authors, recipients and/or custodians of the documents”).
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`For example, for multiple document entries GTP’s supplemental and amended privilege
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`log provides no substantive information as to the author of the document. See Exhibit A at Entries
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`73–79, 82–84
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`. GTP does not identify with sufficient detail the documents’ author(s) or the affiliation
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`of any of the authors, recipients, or custodians of the documents, which prevents Defendants from
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`assessing applicability of privilege. As a further example, many entries list
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` as the
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`sole author but provide no information regarding who
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` is or why they are entitled to
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`Case 2:21-cv-00040-JRG Document 102 Filed 10/19/21 Page 7 of 10 PageID #: 3224
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`attorney-client privilege. See Exhibit A at Entries 4–8. Smartphone Techs. 2013 U.S. Dist. LEXIS
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`28220, at *12–13 (“[Plaintiff’s] privilege log is deficient. . . . [Plaintiff] does not identify the
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`positions of the senders or recipients of documents such that one can deduce a common interest.
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`Without a description of a person’s occupation or job title, [defendant] cannot determine whether
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`the claim of privilege is justified.” (emphasis added)).
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`Further, GTP’s supplemental and amended privilege log does not identify all authors and
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`recipients of the listed documents.
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` Exhibit A at Entry 238.
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` This issue is present in numerous entries. See Smartphone
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`Techs., 2013 U.S. Dist. LEXIS 28220, at *13 (“[Plaintiff] uses ‘et al.’ to indicate further
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`dissemination of the documents. Such broad use of ‘et al.’ to indicate further communication to
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`other parties is not helpful. One may simply assume that an ‘et al.’ dissemination implies waiver
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`of the privilege due to communication to third parties. Thus, [plaintiff] should avoid the use of ‘et
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`al.’ and specifically identify all recipients.” (emphasis added)). GTP failure to specifically identify
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`all authors and recipients of the documents prevents Defendants from assessing applicability of
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`privilege.
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`C.
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`GTP Has Failed to Identify Removed Entries and Clawed-Back Documents
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`On two occasions, GTP requested that Defendants delete and destroy a total of twenty
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`previously produced documents as allegedly containing attorney-client privileged information.
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`GTP’s supplemental and amended privilege log fails to identify each document that was clawed
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`back. This prevents Defendants from assessing the applicability of privilege for the clawed-back
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`Case 2:21-cv-00040-JRG Document 102 Filed 10/19/21 Page 8 of 10 PageID #: 3225
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`documents. On October 15, 2021, GTP served a second supplemental privilege log containing
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`additional entries which included the Bates ranges under which the documents were originally
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`produced. However, GTP’s second supplemental privilege log remains deficient, because (1) it
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`fails to include 14 other previously clawed-back documents—including all thirteen documents
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`GTP clawed back in its August 31 letter; and (2) it fails to disclose any basis for GTP’s privilege
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`claim, or even a description, for one of the previously clawed-back documents. See Exhibit B at
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`Entry 1679.
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`Lastly, GTP’s supplemental and amended privilege log removes 86 entries that were
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`identified in GTP’s initial privilege log. On October 15, 2021, GTP served a letter identifying 43
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`Bates ranges for the previously deleted documents. However, GTP did not state which of the 86
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`deleted entries correspond to those Bates ranges, and did not confirm that all 86 corresponding
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`documents have been produced. Defendants’ highlighted this deficiency in a responsive letter also
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`dated October 15. GTP has failed to rectify this deficiency.
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`V.
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`CONCLUSION
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`With the close of fact discovery, GTP’s failure to provide an adequate privilege log has
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`severely prejudiced Defendants. Thus, Defendant’s respectfully request an order compelling GTP
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`to provide immediately a privilege log that complies with Rule 26(b)(5), including (1) providing
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`sufficient description of each document to allow Defendants’ to assess the alleged applicability of
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`privilege; (2) identifying and providing the affiliations of all authors, recipients, and custodians of
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`each document; and (3) identifying entries removed from and clawed-back documents added since
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`GTP’s initial privilege log.
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`Case 2:21-cv-00040-JRG Document 102 Filed 10/19/21 Page 9 of 10 PageID #: 3226
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`DATED: October 15, 2021
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`Respectfully submitted,
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`By: /s/ Christopher W. Kennerly
`Christopher W. Kennerly (TX Bar No. 00795077)
`chriskennerly@paulhastings.com
`Radhesh Devendran (pro hac vice)
`radheshdevendran@paulhastings.com
`Boris S. Lubarsky (pro hac vice)
`borislubarsky@paulhastings.com
`David M. Fox (pro hac vice)
`davidfox@paulhastings.com
`PAUL HASTINGS LLP
`1117 S. California Avenue
`Palo Alto, CA 94304
`Telephone: (650) 320-1800
`Facsimile: (650) 320-1900
`
`Allan M. Soobert
`allansoobert@paulhastings.com
`PAUL HASTINGS LLP
`2050 M Street NW
`Washington, D.C. 20036
`Telephone: 202-551-1700
`Facsimile: 202-551-1705
`
`Elizabeth L. Brann
`elizabethbrann@paulhastings.com
`PAUL HASTINGS LLP
`4747 Executive Drive, 12th Floor
`San Diego, CA 92121
`Telephone: (858) 458-3000
`Facsimile: (858) 458-3005
`
`Robert Laurenzi
`robertlaurenzi@paulhastings.com
`PAUL HASTINGS LLP
`200 Park Avenue
`New York, NY 10166
`Telephone: (212) 318-6000
`Facsimile: (212) 319-4090
`
`Melissa R. Smith (TX Bar No. 24001351)
`GILLAM & SMITH, LLP
`303 S. Washington Ave.
`Marshall, TX 75670
`Telephone: (903) 934-8450
`Facsimile: (903) 934-9257
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`-8-
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`Case 2:21-cv-00040-JRG Document 102 Filed 10/19/21 Page 10 of 10 PageID #: 3227
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`melissa@gillamsmithlaw.com
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`Attorneys for Defendants Samsung Electronics
`Co., Ltd and Samsung Electronics America, Inc.
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`CERTIFICATE OF CONFERENCE
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`Pursuant to Local Rules CV-7(h) and (i), counsel for the Defendants met and conferred
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`with counsel for the Plaintiff on October 15, 2021 in a good faith attempt to resolve the matters
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`raised by this motion. No agreement could be reached. Plaintiff indicated it opposes the relief
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`requested by this motion. Thus, these discussions have conclusively ended in an impasse and leave
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`an open issue for the Court to resolve.
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` /s/ Christopher W. Kennerly
`Christopher W. Kennerly
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`CERTIFICATE OF AUTHORIZATION TO SEAL
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`I hereby certify that under Local Rule CV-5(a)(7), the foregoing document is filed under
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`seal pursuant to the Court’s Protective Order entered in this matter.
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` /s/ Christopher W. Kennerly
`Christopher W. Kennerly
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`CERTIFICATE OF SERVICE
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`I hereby certify that a true and correct copy of the foregoing document was filed
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`electronically in compliance with Local Rule CV-5 on October 15, 2021. As of this date, all
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`counsel of record had consented to electronic service and are being served with a copy of this
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`document through the Court’s CM/ECF system under Local Rule CV-5(a)(3)(A) and by email.
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` /s/ Christopher W. Kennerly
`Christopher W. Kennerly
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