Case 2:21-cv-00040-JRG Document 88 Filed 09/30/21 Page 1 of 11 PageID #: 2072
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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,
`
`Plaintiff
`
`v.
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`SAMSUNG ELECTRONICS CO., LTD.
`AND SAMSUNG ELECTRONICS
`AMERICA, INC.,
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`Defendants.
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`DEFENDANTS SAMSUNG ELECTRONICS CO., LTD. AND SAMSUNG
`ELECTRONICS AMERICA, INC.’S MOTION FOR A PROTECTIVE ORDER
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`

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`Case 2:21-cv-00040-JRG Document 88 Filed 09/30/21 Page 2 of 11 PageID #: 2073
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`GTP recently served interrogatories and deposition topics on Samsung seeking discovery
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`on “every Application” that can detect, process, interpret, respond to, or be controlled by Gestures.1
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`See, e.g., Exhibit A at 2. These discovery requests came after GTP repeatedly represented to
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`Samsung and the Court that its claims “are about devices, not applications . . . .” Dkt. No. 54 at 9.
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`See also Dkt. No. 57 at 1 (“GTP has repeatedly informed Samsung that the [Applications] . . . are
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`not part of GTP’s infringement theories.”) (emphasis added). Thus, GTP’s litigation positions
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`demonstrate that its requests seeking discovery on “every Application” relating to Gestures have
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`negligible if any relevance to its infringement theories and the case as a whole. In contrast,
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`Samsung would incur substantial undue burden and expense responding to the full scope of GTP’s
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`discovery requests, making them disproportionate to the needs of the case.
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`Samsung respectfully requests that the Court issue a protective order limiting the scope of
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`GTP’s discovery requests to the seven Applications for which GTP at least provided identifying
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`information (i.e., a website or other publicly available information) and some cursory explanation
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`of its theory of infringement, which was arguably sufficient to satisfy its obligations under P.R. 3-
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`1(c) and fairly put the seven Applications at issue. In light of GTP’s unequivocal representations,
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`discovery as to “every Application” does not fall within the permissible scope of discovery under
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`Rule 26(b)(1), and GTP has effectively waived any right to such discovery. Particularly in light
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`of the substantial undue burden and expense it would impose on Samsung, a protective order
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`shielding Samsung from such discovery is warranted in these circumstances.
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`I.
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`LEGAL STANDARD
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`A court “may, for good cause,” protect a party from “undue burden or expense” by issuing
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`an order limiting the scope of disclosure or discovery. Fed. R. Civ. P. 26(c)(1). To prevail on a
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`1 GTP defined “Gestures” to mean “movement, position, or state of a body part, including, but not
`limited to, the whole body, any part thereof, and facial expressions.” Exhibit A at 1.
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`-1-
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`Case 2:21-cv-00040-JRG Document 88 Filed 09/30/21 Page 3 of 11 PageID #: 2074
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`motion for protective order, a party must show that the requested discovery does not fall within
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`Rule 26(b)(1)’s scope of discovery, or that a discovery request would impose an undue burden or
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`expense. McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir.
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`1990). Further, “[a] district court has broad discretion in all discovery matters.” Weatherford
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`Tech. Holdings LLC v. Tesco Corp., No. 2:17-cv-00456-JRG, 2018 WL 4620634, at *1 (E.D. Tex.
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`Apr. 27, 2018) (citation omitted). Failure to raise arguments relating to a party’s patent rights
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`“should ordinarily result in waiver of the arguments.” Music Choice v. Stingray Digital Grp. Inc.,
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`No. 2:16-cv-00586, 2019 WL 8110069, at *3 (E.D. Tex. Nov. 19, 2019) (citation omitted).
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`II.
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`BACKGROUND
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`The Accused Products are Samsung phones and tablets that run software Applications with
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`widely varying functionalities.2 For example, one Application creates an animated version of the
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`user in response to the user’s head movement (“AR Emoji”).3 Information regarding Applications
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`is publicly available. GTP filed its Complaint with citations to publicly available information for
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`six Applications: “Iris Scan Unlock” (¶ 27 n.1); “Face ID Unlock” and “Intelligent Scan Unlock”
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`(¶ 28 n.2); “Gesture Detection” (¶ 29 n.3);4 and “Smart Stay” (¶ 30 n.4). Then, in its preliminary
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`2 In its Complaint, GTP referred to these Applications as “Features.” No. 2:21-cv-00041, Dkt. No.
`1 ¶¶ 25–26; id. ¶ 71 (“[G]estures are used by the Features.”). Similarly, in its infringement
`contentions, GTP referred to these Applications as “Features.” Fox Decl. ¶ 3 (“The gestures
`detected . . . are associated with . . . the following features of the Accused Products: Gesture
`Detection . . . .”). In its Response to Samsung’s motion to compel, GTP began referring to
`“Features” as “Applications.” See, e.g., Dkt. No. 54 at 8 (“GTP listed applications on the Accused
`Products that use gestures”). During the parties’ September 24, 2021 meet and confer, counsel for
`GTP refused to discuss whether or how “Features” and Applications” differed in meaning or scope.
`Fox Decl. ¶ 4. For the avoidance of doubt and to simplify matters for the Court, Samsung will
`refer to “Features” and “Applications” interchangeably.
`3 What is AR (Augmented Reality) Emoji And How Do I Use It?, SAMSUNG.COM (last visited Sept.
`25, 2021), available at: https://www.samsung.com/uk/support/mobile-devices/what-is-ar-
`augmented-reality-emoji-and-how-do-i-use-it/.
`4 GTP has continued to refer to “Gesture Detection” as an Application. However, the websites
`GTP cited for “Gesture Detection” actually disclose two Applications: (1) Air Gestures and (2)
`Palm Gesture for Selfie. Samsung has agreed to provide discovery on each.
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`-2-
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`Case 2:21-cv-00040-JRG Document 88 Filed 09/30/21 Page 4 of 11 PageID #: 2075
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`infringement contentions, GTP listed a total of 25 Applications and again cited publicly available
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`information for the above six Applications, plus a seventh: “AR Emoji.” GTP’s contentions failed
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`to provide any identifying information for the other 18 Applications beyond their supposed names
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`(many of which were incorrect or ambiguous) and failed to explain GTP’s theory of infringement
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`for these 18 Applications as required under P.R. 3-1(c).
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`Samsung notified GTP that its failure to provide sufficient notice regarding the other 18
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`Applications left Samsung “unable to . . . provide discovery” on those Applications. Fox Decl. ¶
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`6. After a meet and confer, GTP amended its contentions, decreasing the total number of identified
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`Applications from 25 to 20.5 The amended infringement contentions once again cited to publicly
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`available information about the seven Applications (e.g., AR Emoji), but still failed to provide any
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`information about the remaining 13 Applications, except for their supposed names, and failed to
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`provide the required explanation of GTP’s theory of infringement for these 13 Applications.
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`Samsung notified GTP yet again, stating that “failure to provide documentation or other
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`identifying information for each Accused Feature continues to significantly hamper Samsung’s
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`ability to identify and provide discovery.” Fox Decl. ¶ 7. GTP disagreed and refused to further
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`amend its contentions to provide additional information on the other 13 Applications. Further
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`meet and confers between the parties did not resolve or narrow the parties’ dispute.
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`With the parties at an impasse, Samsung filed a motion to compel and/or strike GTP’s
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`amended infringement contentions as to the 13 Applications in dispute, reiterating its concern that
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`GTP’s refusal to provide any meaningful information about these 13 Applications “significantly
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`5 Samsung’s May 7 letter referenced the “24” Applications that GTP accused. Samsung’s counsel
`has since learned that “Gesture Detection” encompasses two separate Applications (i.e., Air
`Gestures and Palm Gesture for Selfie). Also, Samsung’s motion to compel and/or strike referred
`to a total of 18 Applications, not counting “Gesture Detection” as two separate Applications, and
`not accounting for “Control Exposure Based on Location.” Fox Decl. ¶ 8.
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`-3-
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`Case 2:21-cv-00040-JRG Document 88 Filed 09/30/21 Page 5 of 11 PageID #: 2076
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`hampers Samsung’s ability to identify and provide discovery.” Dkt. No. 51 at 2. In response, GTP
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`represented that it already provided website links to generally “explain how gestures are used by
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`the Accused Products within the cited applications,” Dkt. No. 54 at 8, and that “GTP does not need
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`to provide additional documentation on the [applications] because the [applications] themselves
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`are not part of GTP’s infringement theories.” Dkt. No. 57 at 1 (emphasis added). Samsung’s
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`motion to compel and/or strike is currently pending before the Court.6
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`GTP served its first set of interrogatories and its notice of Rule 30(b)(6) deposition to
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`Samsung on September 8 and September 14, 2021 respectively. The specific discovery requests
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`for which Samsung seeks a protective order are Interrogatory No. 3, Deposition Topic No. 3, and
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`other requests that depend therefrom (collectively, “Discovery Requests”).
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`Interrogatory No. 3 requests:
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`For the Accused Products and/or Devices identified in response to Interrogatory
`No. 1, identify every Application, that can detect, process, interpret, respond to, or
`be controlled by Gestures, that is (1) preloaded on the Accused Products and/or
`Devices or (2) available for download on the Accused Products using the table
`below.
`Fox Decl. ¶ 3 (emphasis added). In addition, at least Interrogatory Nos. 10, 11, 12, and 17 seek
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`further information about the Applications responsive to Interrogatory No. 3.
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`Deposition Topic No. 3 similarly requests that a Samsung representative testify regarding
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`“[t]he identity and description of every Application, that can detect, process, interpret, respond to,
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`or be controlled by Gestures.” Exhibit A at 2–3 (emphasis added). In addition, Deposition Topic
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`No. 3 requests that, for each such Application, Samsung provide testimony about: (a) the name of
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`the Application; (b) whether the Application was preloaded on the Accused Products and/or
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`Devices or available for download on the Accused Products or Devices; (c) the Accused Products
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`6 Also pending with the Court is Samsung’s motion to dismiss under Rule 12(b)(6) focused in part
`on GTP’s failure to sufficiently plead its direct infringement allegations as to the Applications at
`issue here. Dkt. No. 23.
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`-4-
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`Case 2:21-cv-00040-JRG Document 88 Filed 09/30/21 Page 6 of 11 PageID #: 2077
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`and/or Devices for which the Application was preloaded or available for download; (d) the
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`Gestures that the Application can detect, process, interpret, respond to, or use for control; and (e)
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`the function(s) of the Application that are controlled by Gesture(s). Id. At least Deposition Topic
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`Nos. 10, 17, 19, 32, 35, 36, 38, and 40 seek further Samsung testimony about the Applications
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`responsive to Deposition Topic No. 3. The parties met and conferred on September 24, 2021
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`regarding the subject of this motion, wherein counsel for GTP refused to discuss whether or how
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`“Features” and “Applications” differed in meaning or scope, or to otherwise compromise on the
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`discovery GTP seeks through the Discovery Requests.7 Fox Decl. ¶ 5.
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`III. THE COURT SHOULD LIMIT DISCOVERY TO THE SEVEN APPLICATIONS
`FOR WHICH GTP HAS ARGUABLY SATISFIED ITS P.R. 3-1 OBLIGATIONS.
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`Pursuant to Fed. R. Civ. P. 26(c)(1)(D), “good cause” exists for the Court to limit discovery
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`to the seven Applications for which GTP arguably provided sufficient identifying information and
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`explanation of its infringement theories to satisfy P.R. 3-1(c), fairly putting those Applications at
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`issue in this case. In contrast, responding to the Discovery Requests as applied to the other 13
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`Applications would impose substantial undue burden and expense on Samsung. Further, in light
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`of GTP’s representations and litigation positions, the Discovery Requests do not fall within the
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`permissible scope of discovery under Rule 26(b), and GTP has effectively waived its right to such
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`discovery in any event. The Discovery Requests are disproportionate to the needs of the case and
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`a protective order is warranted to shield Samsung from such discovery.
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`A.
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`The Discovery Requests Impose Undue Burden and Expense on Samsung
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`Each Application at issue provides unique functionality and was developed by a Samsung
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`engineer or engineers with specific expertise in that Application’s functionality. Consequently,
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`7 Samsung’s counsel asked whether the term “Features” was subsumed in the term “Applications.”
`GTP’s counsel responded that the word “Features” is not in the definition of “Applications,” and
`stated that GTP did not need to answer whether the terms are co-extensive. Fox Decl. ¶ 5.
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`-5-
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`Case 2:21-cv-00040-JRG Document 88 Filed 09/30/21 Page 7 of 11 PageID #: 2078
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`there is very little overlap among Samsung engineers who can testify about each Application. For
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`example, to provide Rule 30(b)(6) testimony on the seven Applications not in dispute, Samsung
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`determined that it must present five Samsung engineers to testify as to Deposition Topic 3 and the
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`other topics that depend therefrom. Fox Decl. ¶ 9. The number would have been seven engineers
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`(i.e., one per Application) but for the coincidence that “Iris Scan,” “Face Unlock,” and “Intelligent
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`Scan Unlock” involve the same or very similar underlying functionality (i.e., Face Unlock and
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`Intelligent Scan Unlock are variations of Iris Scan).
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`Samsung’s reasonable expectation is that providing additional Rule 30(b)(6) witnesses for
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`Deposition Topic 3, on just the other 13 Applications that are currently the subject of Samsung’s
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`motion to compel and/or strike, would require 13 additional engineers (i.e., one per Application).
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`Even putting aside Samsung’s internal burden and expense in terms of lost working time, business
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`disruption, etc., presenting 13 additional engineers as Rule 30(b)(6) witnesses is estimated to cost
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`Samsung
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` in attorneys’ fees alone. Specifically, Samsung estimates
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`that 24 hours per witness is required for preparation and deposition (4 hours of initial preparation;
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`8 hours of final preparation; and up to 12 hours for the deposition (as up to 10.5 hours of record
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`testimony are permitted due to use of a Korean language interpreter)), not including background
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`research, document analysis, transcript review, and other typical activities. Assuming one partner
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`and one associate are required for these tasks, and assuming conservatively a combined rate of
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` per hour for the two attorneys, the required attorney time equates to
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` per witness,
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`and
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` in total. There can be no question that absent a protective order Samsung will be
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`forced to spend significant sums responding to the Discovery Requests.
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`B.
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`The Discovery Requests Go Beyond the Scope of Fed. R. Civ. P. 26(b)
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`The burden and expense to be imposed on Samsung far outweighs the minimal importance
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`of the information GTP seeks through the Discovery Requests. By its own admission, GTP’s
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`-6-
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`Case 2:21-cv-00040-JRG Document 88 Filed 09/30/21 Page 8 of 11 PageID #: 2079
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`claims “are about devices, not applications . . . .” Dkt. No. 54 at 9 (emphasis added). See also
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`Dkt. No. 54 at 8 (“[T]he applications that use ‘gestures’ are not the Accused Products. GTP’s
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`claims are to apparatuses (devices) . . .”); Dkt. No. 57 at 1 (“GTP has repeatedly informed Samsung
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`that the [Applications] . . . are not part of GTP’s infringement theories.”) (emphasis added).
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`Thus, GTP’s representations and litigation positions demonstrate that its broad Discovery Requests
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`as to “every Application” have negligible if any relevance to its infringement theories and thus are
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`not proportional to the needs of the case.
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`Proportionality takes into consideration, among other factors, “the importance of the issues
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`at stake” and “the parties’ relative access to relevant information.” Fed. R. Civ. P. 26(b)(1). Here,
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`GTP’s representations and litigation positions belie any alleged importance of the discovery it
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`seeks on “every” Application. See, e.g., Dkt. No. 54 at 9. Moreover, other discovery requests can
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`provide GTP with appropriate information. For example, Deposition Topic No. 5 requests
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`testimony about the algorithms used “to detect, process, interpret, respond to, or be controlled by
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`Gestures.” Cf. Deposition Topic No. 3. See also Deposition Topic Nos. 6, 7, 10. Finally, fairness
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`warrants the Court using its discretion to find that GTP has waived any right to discovery for
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`Applications beyond the seven that are not in dispute. See, e.g., Music Choice, 2019 WL 8110069,
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`at *3 (“The Court concludes that Stingray has waived its claim construction argument.”).
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`IV. CONCLUSION
`For the foregoing reasons, Samsung respectfully requests that the Court issue a protective
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`order pursuant to Fed. R. Civ. P. 26(c)(1)(D), shielding Samsung from discovery on Applications
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`other than Iris Scan Unlock, Face ID Unlock, Intelligent Scan Unlock, Air Gesture, Palm Gesture
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`for Selfie, Smart Stay, and AR Emoji.
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`-7-
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`Case 2:21-cv-00040-JRG Document 88 Filed 09/30/21 Page 9 of 11 PageID #: 2080
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`DATED: September 28, 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 88 Filed 09/30/21 Page 10 of 11 PageID #: 2081
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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 Defendants met and conferred with
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`counsel for the Plaintiff on September 24, 2021 in a good faith attempt to resolve the matters raised
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`by this motion. In seeking to clarify and/or narrow the dispute, Defendants’ counsel asked whether
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`the term “Features” was subsumed within the term “Applications.” Plaintiff’s counsel responded
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`that the word “Features” is not in the definition of “Applications,” and stated that Plaintiff did not
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`need to answer whether the terms are co-extensive. Fox Decl. ¶ 5. No agreement could be reached.
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`The parties exchanged further emails on September 28, 2021, and Plaintiff confirmed it opposes
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`the relief requested by this motion. Thus, these meet and confer efforts have conclusively ended
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`in an impasse and leave 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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`-9-
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`Case 2:21-cv-00040-JRG Document 88 Filed 09/30/21 Page 11 of 11 PageID #: 2082
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`CERTIFICATE OF SERVICE
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`I hereby certify that a true and correct copy of the foregoing document has been served via
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`email on all counsel of record on this 28th day of September, 2021.
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` /s/ Christopher W. Kennerly
`Christopher W. Kennerly
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`-10-
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