Case 2:21-cv-00040-JRG Document 58 Filed 07/29/21 Page 1 of 8 PageID #: 938
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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 E-DISCOVERY 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 E-Discovery 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 E-Discovery Order, but were
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`unable to reach agreement and are at an impasse regarding provisions for (1) identifying proper
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`Case 2:21-cv-00040-JRG Document 58 Filed 07/29/21 Page 2 of 8 PageID #: 939
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`custodians within Section 7; and (2) limits for email discovery within Section 9. The Parties’
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`competing proposals and arguments are presented below:
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`I.
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`PLAINTIFF’S POSITION
`A.
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`Identifying Proper Custodians ¶ 7
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`Generally, "[p]arties may obtain discovery regarding any nonprivileged matter that is
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`relevant to any party's claim or defense and proportional to the needs of the case, considering the
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`importance of the issues at stake in the action, the amount in controversy, the parties' relative
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`access to relevant information, the parties' resources, the importance of the discovery in resolving
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`the issues, and whether the burden or expense of the proposed discovery outweighs its likely
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`benefit." Fed. R. Civ. P. 26(b)(2)(A). “The burden is on the party resisting discovery to establish
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`the discovery is not proportional.” Kaist IP US LLC v. Samsung Elecs. Co., No. 2:16-CV-01314-
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`JRG-RSP, 2017 U.S. Dist. LEXIS 221766, at *4-5 (E.D. Tex. Dec. 21, 2017); see also Samsung
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`Elecs. Am. Inc. v. Yang Kun "Michael" Chung, No. 3:15-CV-4108-D, 325 F.R.D. 578, 2017 U.S.
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`Dist. LEXIS 31662, 2017 WL 896897, at *11 (N.D. Tex. Mar. 7, 2017) (“a party seeking to resist
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`discovery on these grounds still bears the burden of making a specific objection and showing that
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`the discovery fails the proportionality calculation mandated by [Fed. R. Civ. P. 26(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. Defendants have not shown a compelling reason to deviate from the
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`Court’s Model Order Regarding E-Discovery in Patent Cases (the “Model Order”). The burden is
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`on Defendants to demonstrated that “a specific identification of the fifteen most significant listed
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`e-mail custodians” and “tak[ing] one deposition per producing party” is not proportional to the
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`needs of this case. In fact, it is quite the opposite. Defendants are large corporations with teams
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`of individuals working on different portions of the accused phones and tablets. For GTP to
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`properly discover the scope of Defendants’ infringement, GTP cannot agree to limit its discovery
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`Case 2:21-cv-00040-JRG Document 58 Filed 07/29/21 Page 3 of 8 PageID #: 940
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`efforts preemptively. “Generally, the party seeking to limit discovery bears the burden of showing
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`good cause.” Smartflash LLC v. Apple Inc., No. 6:13cv447, 2014 U.S. Dist. LEXIS 185186, at
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`*18 (E.D. Tex. May 12, 2014) citing GeoTag v. Frontier Commn's Corp., et al., No. 10-cv-00570,
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`2013 U.S. Dist. LEXIS 25774, *2 (E.D. Tex. Jan. 8, 2013). Defendants have offered no reason
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`why the burden should be shifted to GTP, nor have they shown good cause.
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`B.
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`Limits for Email Discovery ¶ 9
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`For the same reasons discussed above, Defendants have not demonstrated why there is a
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`need to limit the search hits to 2,000 hits per custodian. The Model Order does not place any such
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`restrictions, nor is one necessary. A limit on the number of hits, as proposed by Defendants, would
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`hamper GTP’s ability to obtain relevant discovery and would arbitrarily allow Defendants to
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`dictate the number of relevant documents. GTP has accused numerous phones, and tablets
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`produced and manufactured by the Defendants and believes that any predetermined limit will
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`hamper GTP’s discovery efforts.
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`II.
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`DEFENDANTS’ POSITION
`A.
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`Identifying Proper Custodians ¶ 7
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`Defendants respectfully request that the Court (1) not require a party deposition merely to
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`identify e-mail custodians, (2) limit the required identification of e-mail custodians to “up to” 15
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`custodians; and (3) require an accompanying translation for any search terms that require it.
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`GTP has failed to explain how additional “discovery about discovery” will assist the Parties
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`in identifying how to efficiently proceed with e-mail collection. The Parties have already agreed
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`on up to five written requests to identify custodians and search terms. GTP accuses 18 Accused
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`Features across 33 Accused Products for the Samsung Defendants and a comparable number of
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`features and products for the Huawei Defendants. These products and features are likely to involve
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`a number of different custodians, and no single deponent (or even a very limited set of deponents)
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`Case 2:21-cv-00040-JRG Document 58 Filed 07/29/21 Page 4 of 8 PageID #: 941
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`would possess the requisite personal knowledge or other information to provide fact testimony
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`regarding all of the potential custodians, except as told to the deponent by Defendants’ attorneys
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`following appropriate investigation. As a result, a deposition to identify e-mail custodians would
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`be nothing more than a memory exercise having very little if any practical usefulness to GTP
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`despite imposing a disproportionately high burden on Defendants. Such a deposition would be a
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`gross misuse of resources in the particular circumstances of this case. Accordingly, Defendants
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`respectfully request that the Court approve Defendants’ Proposal and not require a deposition to
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`identify e-mail custodians.
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`Further, Defendants respectfully request that the Court limit the required identification of
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`e-mail custodians to “up to” 15 custodians. Defendants request this modification in the event any
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`Party is unable to identify a total of 15 relevant custodians for e-mail discovery. The Parties have
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`already committed to identifying up to 15 of the most relevant e-mail custodians. Defendants’
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`proposed modification is intended to streamline e-mail discovery by avoiding potential disputes
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`over whether there are, in fact, 15 relevant e-mail custodians or some fewer number. Although
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`GTP has identified numerous “Accused Features,” GTP has repeatedly stated in motion papers
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`and otherwise that it “has not accused the features of infringement” (2:21-cv-00041 Dkt. 57 at 1),
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`acknowledging that the numerosity of “Accused Features” does not warrant a large number of e-
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`mail custodians. In the particular circumstances of this case, there is simply no need to require the
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`identification of 15 e-mail custodians if a fewer number is appropriate. Accordingly, Defendants
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`respectfully request that the Court adopt Defendants’ Proposal and limit the required identification
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`of e-mail custodians to “up to” 15 custodians.
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`Lastly, Defendants respectfully request that the Court require an accompanying translation
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`for any search terms that require it. Defendants include international companies with employees
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`-4-
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`Case 2:21-cv-00040-JRG Document 58 Filed 07/29/21 Page 5 of 8 PageID #: 942
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`speaking different languages. If GTP proposes search terms that requires a translation, Defendants
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`request that GTP be required to provide an accompanying translation of those search terms.
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`B.
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`Limits for Email Discovery ¶ 9
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`The Parties have agreed that each Party may select up to a total of 8 custodians per
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`producing party and request a total of 10 search terms per custodian. Defendants respectfully
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`request that the Court impose an additional limit that if any 10 search terms yield combined results
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`of greater than 2,000 hits for a single custodian, the parties will then meet and confer to narrow
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`the scope of the search terms to yield fewer than 2,000 hits.
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`The value of e-mail discovery in this case is especially limited because there is no
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`allegation that Defendants had pre-suit knowledge of the Asserted Patents, such that e-mail might
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`be relevant to Defendants’ pre-suit interactions with Plaintiff or predecessors or Defendants’ states
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`of mind with respect to the Asserted Patents. The burden imposed on Defendants to collect,
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`review, store, and produce e-mail from 8 custodians per producing party and 10 search terms per
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`custodian would be significant, whereas there is likely to be very little if any practical usefulness
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`to GTP from such e-mail discovery. The 2,000 hits per custodian limit provides an equitable way
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`to mitigate the burden on Defendants while allowing for streamlined discovery appropriate to the
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`needs of the case. Accordingly, Defendants respectfully request that the Court limit the total hits
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`per custodian to no greater than 2,000.
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`-5-
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`Case 2:21-cv-00040-JRG Document 58 Filed 07/29/21 Page 6 of 8 PageID #: 943
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`Date: July 29, 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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`
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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
`
`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
`melissa@gillamsmithlaw.com
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`-6-
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`Case 2:21-cv-00040-JRG Document 58 Filed 07/29/21 Page 7 of 8 PageID #: 944
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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 in a good faith attempt to resolve the matters raised by this motion.
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`No agreement could be reached. Plaintiff indicated it opposes the relief requested by this motion.
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`Thus, these discussions have conclusively ended in an impasse and leave an open issue for the
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`Court to resolve.
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` /s/ Christopher W. Kennerly
`Christopher W. Kennerly
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`-7-
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`Case 2:21-cv-00040-JRG Document 58 Filed 07/29/21 Page 8 of 8 PageID #: 945
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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 July 29, 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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`-8-
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