Case 2:21-cv-00040-JRG Document 41 Filed 06/03/21 Page 1 of 9 PageID #: 443
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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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`JOINT MOTION FOR ENTRY OF
`DISPUTED PROTECTIVE ORDER
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`Defendants Huawei Device Co., LtD., Huawei Device USA, Inc. (together “Huawei”),
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`Samsung Electronics Co., Ltd., and Samsung Electronics America, Inc. (together “Samsung”)
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`(collectively “Defendants”) and Plaintiff Gesture Technology Partners, LLC (“Plaintiff” or
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`“GTP”) (collectively “the Parties”) submit the Proposed Disputed Protective Order Attached as
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`Exhibit A (the Parties’ respective proposals with respect to disputed provisions being indicated
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`with Plaintiff’s Proposal and Defendants’ Proposal). Through their meet and confer efforts, the
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`Parties were able to reach agreement on almost all provisions of the Protective Order, but were
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`Case 2:21-cv-00040-JRG Document 41 Filed 06/03/21 Page 2 of 9 PageID #: 444
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`unable to reach agreement and have a dispute regarding (1) the copying and printing of source
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`code detailed in ¶¶ 10(b), (g), and (m); and (2) the length of the prosecution bar detailed in ¶ 11.
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`The Parties’ competing proposals and arguments are presented below:
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`I.
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`PLAINTIFF’S POSITION
`A.
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`Source Code Printing ¶ 10(b)
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`GTP believes that Defendants’ proposal would impose unreasonable restrictions on GTP’s
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`ability to conduct discovery. GTP has accused numerous features of Defendants’ many devices
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`and applications for which source code will likely cover hundreds of continuous blocks and
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`thousands of pages. Consistent with the model order’s provision for reasonable numbers of
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`printouts, GTP believes that its proposed limitations of 100 pages of continuous blocks of source
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`code and 2,500 pages is reasonable and proportional to the needs of the case. Furthermore,
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`Defendants’ proposed restrictions would give Defendants the right to unilaterally determine
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`whether requested printouts are excessive or unreasonable. Defendants’ position would
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`essentially allow Defendants to dictate the scope of discovery to GTP and restrict its ability to
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`work with its experts and counsel.
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`Defendants’ position seeks to impose burden on GTP, which is inconsistent with prior
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`rulings in this District. “The producing party should bear the burden of showing why it should not
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`comply with a request for additional pages.” Smartflash LLC v. Apple Inc., No. 6:13cv447, 2014
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`U.S. Dist. LEXIS 185186, at *18 (E.D. Tex. May 12, 2014). “Generally, the party seeking to limit
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`discovery bears the burden of showing good cause.” Id. citing GeoTag v. Frontier Commn's Corp.,
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`et al., No. 10-cv-00570, 2013 U.S. Dist. LEXIS 25774, *2 (E.D. Tex. Jan. 8, 2013). Defendants
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`have offered no reason why the burden should be shifted to the Plaintiff, nor have they shown good
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`cause.
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`Case 2:21-cv-00040-JRG Document 41 Filed 06/03/21 Page 3 of 9 PageID #: 445
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`B.
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`Source Code Printing ¶ 10(g)
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`As with paragraph 10(b), GTP believes that its proposal allowing for 500 total lines of
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`code is reasonable and proportional to the needs of the case. Defendants’ proposal would
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`unreasonably and arbitrarily limit GTP’s access to and use of source code in the case.
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`C.
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`Source Code Printing ¶ 10(m)
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`As with paragraphs 10(b) and 10(g), Defendants are improperly shifting the burden to GTP
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`and limit discovery. GTP believes it should be allowed to make a reasonable number of printouts
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`and photocopies of source code, yet Defendants seek to place additional burden on GTP for
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`requesting this discovery. Under Defendants’ proposal, Defendants could arbitrarily dictate what
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`they believe constitutes a reasonable need for GTP’s source code discovery. This is inconsistent
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`with the model order and prior rulings of the Court.
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`D.
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`Prosecution Bar ¶ 11
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`GTP believes that Defendants’ proposals would place an unnecessary burden on the
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`prosecution of any potential patent well beyond the conclusion of this case. A one-year
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`prosecution bar is appropriate, sufficient, and accords with the Court’s precedent. Defendants bear
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`the burden of justifying a more onerous prosecution bar, and they must demonstrate good cause
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`for such a bar. See In re Deutsche Bank Trust Co. Ams., 605 F.3d 1373, 1378 (Fed. Cir. May 27,
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`2010). They have not carried that burden to show that good cause exists here for a multi-year bar.
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`II.
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`DEFENDANTS’ POSITION
`A.
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`Source Code Printing
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`Defendants respectfully request that the Court limit (i) the printing of source code to 50
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`continuous pages and no more than 1,250 total pages of source code in ¶ 10(b); and (ii) the copying
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`of source code by experts to 250 total lines of code in ¶ 10(g). This Court has previously upheld
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`much lower limitations in the interest of preventing inadvertent disclosure of highly sensitive
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`Case 2:21-cv-00040-JRG Document 41 Filed 06/03/21 Page 4 of 9 PageID #: 446
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`source code. See E-Contact Techs. LLC v. Apple Inc., No. 1:11-cv-426, 2012 WL 11924448 at *3
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`(E.D. Tex. June 19, 2012) (determining that 10 continuous pages and 500 total pages of source
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`code permits “reasonable accountability for the review and printing of source code”). As in E-
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`Contact, here Defendants have agreed to allow for the additional printing of source code, in good
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`faith should Plaintiff articulate a reasonable request for permission to print the extra pages.
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`Further, in line with this Court’s holding in E-Contact, Defendants originally proposed 15
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`continuous pages, 400 total pages, and 50 total lines of source code. Defendants have twice
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`increased those proposed limits in an effort to reach a compromise agreement. Plaintiff, however,
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`has steadfastly refused to decrease its proposed limits. The limits proposed by Defendants are
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`more than sufficient in this case, even considering the multiplicity of camera-related functions
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`accused by Plaintiff.
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` It is undisputed that source code is critically important, is sensitive enough to warrant its
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`own section in the Protective Order, is offered greater protection than any other designation in the
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`Protective Order, and cannot be disclosed even among all the Parties in this action. Defendants
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`will provide GTP access to the necessary source code in a convenient manner, but cannot agree to
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`terms that prevent reasonable accountability for the review and printing of its highly sensitive and
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`proprietary information. Plaintiff’s proposal on printed pages is more than ten times what this
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`Court found appropriate in E-Contact, and double what Defendants proposed in an effort to reach
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`a compromise agreement.
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`Lastly, Defendants request reasonable restrictions to minimize the risk of inadvertent
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`disclosure of source code. Defendants propose two additional requirements in ¶ 10(b): (i) the
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`requesting Party must articulate a reasonable need to print additional source code pages beyond
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`the agreed upon total; and (ii) if the producing Party believes the printed source code pages are
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`Case 2:21-cv-00040-JRG Document 41 Filed 06/03/21 Page 5 of 9 PageID #: 447
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`excessive or not printed for a permitted purpose, the Parties will promptly meet and confer to
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`resolve any objections before source code is produced. Similarly, in ¶ 10(m), Defendants propose
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`that the producing Party will provide in good faith a reasonable number of additional source code
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`printouts once the requesting Party articulates a reasonable need for additional printouts. These
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`provisions ensure that GTP can access the information it needs to pursue its case, while ensuring
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`reasonable accountability for the review and printing of source code. See E-Contact Techs. LLC
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`v. Apple Inc., No. 1:11-cv-426, 2012 WL 11924448 at *3-4 (E.D. Tex. June 19, 2012) (“Although
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`Defendants’ proposal may make the process more time-consuming, the Court balances this cost
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`against Defendants’ interest in the confidentiality of their source code and permits reasonable
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`accountability for the review and printing of the source code.”)
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`B.
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`Prosecution Bar
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`Defendants respectfully request that the Court impose a two-year prosecution bar given the
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`quantity and sensitivity of the source code involved. Such a provision is necessary to protect
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`against the inadvertent disclosure of Defendants’ highly sensitive proprietary information. The
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`Federal Circuit has recognized that attorneys and retained experts cannot always separate what
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`they learned from legitimate sources from, instead, what they learned by analyzing a defendant’s
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`confidential information. See In re Deutsche Bank Trust Co. Am., 605 F.3d 1373, 1378 (Fed. Cir.
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`2010). This Court routinely imposes two-year prosecution bars when there is a high quantity and
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`sensitivity of material. See Karamelion LLC v. ADT LLC, No. 2:18-cv-00330, Dkt No. 36 (Jan.
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`24, 2019) (ordering a two-year prosecution bar and stating that in “[b]alancing the rights of the
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`Defendants to protect their confidential information against the Plaintiff’s right to innovate,
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`the Court finds that the quantity and sensitivity of Defendants’ confidential and proprietary
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`information indicates that an upward departure of the standard 1-year prosecution bar is justified”).
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`Here, GTP is accusing a multitude of camera-related accused features and over 40 mobile devices,
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`Case 2:21-cv-00040-JRG Document 41 Filed 06/03/21 Page 6 of 9 PageID #: 448
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`implicating large swaths of sensitive and proprietary source code, and GTP is further requesting
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`to be allowed to print thousands of pages of source code. The high quantity and sensitivity of
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`information requires more than a one-year bar. Further, as in Karamelion, Defendants originally
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`proposed a 3-year bar and as a compromise now propose a 2-year bar. Plaintiff, however, has
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`steadfastly refused to compromise. Defendants respectfully request this Court impose the two-
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`year prosecution bar as requested.
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`-6-
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`Case 2:21-cv-00040-JRG Document 41 Filed 06/03/21 Page 7 of 9 PageID #: 449
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`Date: June 3, 2021
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`Respectfully submitted,
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`/s/ Fred I. Williams
`Fred I. Williams
`Texas State Bar No. 00794855
`Michael Simons
`Texas State Bar No. 24008042
`Jonathan L. Hardt
`Texas State Bar No. 24039906
`WILLIAMS SIMONS & LANDIS PLLC
`327 Congress Ave., Suite 490
`Austin, TX 78701
`Tel: 512-543-1354
`fwilliams@wsltrial.com
`msimons@wsltrial.com
`jhardt@wsltrial.com
`
`Todd E. Landis
`State Bar No. 24030226
`WILLIAMS SIMONS & LANDIS PLLC
`2633 McKinney Ave., Suite 130 #366
`Dallas, TX 75204
`Tel: 512-543-1357
`tlandis@wsltrial.com
`
`John Wittenzellner
`Pennsylvania State Bar No. 308996
`WILLIAMS SIMONS & LANDIS PLLC
`1735 Market Street, Suite A #453
`Philadelphia, PA 19103
`Tel: 512-543-1373
`johnw@wsltrial.com
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`Attorneys for Plaintiff
`Gesture Technology Partners, LLC
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`/s/ Christopher W. Kennerly
`Christopher W. Kennerly (TX Bar
`No. 00795077)
`chriskennerly@paulhastings.com
`Radhesh Devendran (pro hac vice)
`radheshdevendran@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
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`Robert Laurenzi
`robertlaurenzi@paulhastings.com
`PAUL HASTINGS LLP
`200 Park Avenue
`New York, NY 10166
`Telephone: (212) 318-6000
`Facsimile: (212) 319-4090
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`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
`melissa@gillamsmithlaw.com
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`Case 2:21-cv-00040-JRG Document 41 Filed 06/03/21 Page 8 of 9 PageID #: 450
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`Attorneys for Defendants Samsung
`Electronics Co., Ltd and Samsung
`Electronics America, Inc.
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`By: /s/ J. Mark Mann
`J. Mark Mann
`State Bar No. 12926150
`mark@themannfirm.com
`G. Blake Thompson
`State Bar No. 24042033
`blake@themannfirm.com
`MANN TINDEL & THOMPSON
`201 E. Howard Street
`903.657.8540
`903.657.6003 (fax)
`AND
`Kent E. Baldauf, Jr. (PA ID No. 70793)
`Bryan P. Clark (PA ID No. 205708)
`THE WEBB LAW FIRM
`One Gateway Center
`420 Ft. Duquesne Blvd., Suite 1200
`Pittsburgh, PA 15222
`412.471.8815
`412.471.4094 (fax)
`kbaldaufjr@webblaw.com
`bclark@webblaw.com
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`Attorneys for Defendants Huawei Device Co.,
`LtD., Huawei Device USA, 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 June 2, 2021 in a good faith attempt to resolve the matters raised
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`by this motion. No agreement could be reached. Plaintiff indicated it opposes the relief requested
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`by this motion. Thus, these discussions have conclusively ended in an impasse and leave an open
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`issue for the Court to resolve.
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` /s/ Christopher W. Kennerly
`Christopher W. Kennerly
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`-8-
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`Case 2:21-cv-00040-JRG Document 41 Filed 06/03/21 Page 9 of 9 PageID #: 451
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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 June 3, 2021. As of this date, all counsel
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`of record had consented to electronic service and are being served with a copy of this document
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`through the Court’s CM/ECF system under Local Rule CV-5(a)(3)(A).
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` /s/ Christopher W. Kennerly
`Christopher W. Kennerly
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`-9-
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