Case 2:21-cv-00040-JRG Document 92 Filed 10/06/21 Page 1 of 8 PageID #: 2106
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`IN THE UNITED STATES DISTRICT
`COURT FOR THE EASTERN DISTRICT
`OF TEXAS MARSHALL DIVISION
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`GESTURE TECHNOLOGY PARTNERS,
`LLC,
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`Plaintiff
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`v.
`HUAWEI DEVICE CO., LTD.,
`HUAWEI DEVICE USA, INC.,
`
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`Defendants.
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`JURY TRIAL DEMANDED
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`C.A. NO. 2:21-cv-00040-JRG
` LEAD CONSOLIDATED CASE
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`C.A. NO. 2:21-cv-00041-JRG
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`
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`SAMSUNG ELECTRONICS CO., LTD.
`AND SAMSUNG ELECTRONICS AMERICA,
`INC.,
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`Defendants.
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`PLAINTIFF’S OPPOSED MOTION FOR
`PROTECTIVE ORDER AND MEMORANDUM IN SUPPORT
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`Plaintiff Gesture Technology Partners, LLC (“GTP”) files this Motion to obtain relief from
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`multiple Rule 30(b)(6) deposition topics served by Defendants Huawei Device Co., Ltd., Huawei
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`Device USA, Inc. (together “Huawei”), Samsung Electronics Co., Ltd., and Samsung Electronics
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`America, Inc. (together “Samsung”) (collectively “Defendants”) because Defendants seek to
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`discover information that is privileged and has no relevance to the claims or defenses at issue in
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`this case. Specifically, GTP has lodged clear and well-grounded objections to topics 37, 38, and
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`40 of Defendant’s 30(b)(6) Notice of Deposition (attached hereto as “Ex. A”), which seek
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`information about litigation funding, communication with funders, and fee arrangements for the
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`instant case. While Topics 31 and 39 are similarly broad and largely directed to irrelevant
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`information that is beyond the scope of discovery, GTP has agreed to respond to those topics to
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`disclose any witness who has a financial interest in the case.
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`1
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`Case 2:21-cv-00040-JRG Document 92 Filed 10/06/21 Page 2 of 8 PageID #: 2107
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`Unfortunately, Defendants refuse to forego seeking to depose witnesses on topics 37, 38,
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`and 40. GTP therefore respectfully submits that the Court should enter a protective order to limit
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`Defendants’ Notice of Deposition by preventing discovery on topics 37, 38, and 40.
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`I.
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`FACTUAL BACKGROUND
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`GTP filed its complaints against Huawei and Samsung in February 2021, alleging
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`Defendants’ infringement of U.S. Patent Nos. 8,194,924 (the “’924 patent”), 7,933,431 (the “’431
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`patent”), 8,878,949 (the “’949 patent”), and 8,553,079 (the “’079 patent”) (collectively, the
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`“Asserted Patents”). See generally Compl., Dkt. No. 1.1 The Asserted Patents are generally
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`directed to innovations in using mobile phone cameras to assist a user to interact with their
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`smartphone, including, for example, but not limited to unlocking their phone, taking and using
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`photos or videos, and providing other functions.
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`Defendants served their Rule 30(b)(6) Notice of Deposition with 48 topics on September 1,
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`2021 (the “Notice”). GTP served its objections on October 6, 2021. GTP and Defendants held a
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`telephonic meet-and-confer on September 24, 2021, during which counsel discussed GTP’s
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`concerns with the noticed topics in good faith. Counsel for GTP stated that the information sought
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`in topics 31 and 37-40 is largely irrelevant to the claims and defenses in this case, but explicitly
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`agreed to disclose the identity of any witness with a financial interest in the case. Counsel for
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`Defendants have since refused to withdraw topics 37, 38, and 40. After further discussion of the
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`issue over email correspondence, Defendants failed to withdraw topics 37, 38, and 40. GTP
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`therefore files this Motion to seek relief from the Court in the form of a protective order, so that
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`GTP is not required to provide testimony about litigation funding, communication with litigation
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`funder(s), or its fee arrangements in the present case.
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`1 Unless otherwise indicated, all citations to the Docket refer to the instant case.
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`2
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`Case 2:21-cv-00040-JRG Document 92 Filed 10/06/21 Page 3 of 8 PageID #: 2108
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`II.
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`LEGAL STANDARD
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`Discovery requests must be “relevant to any party’s claim or defense and proportional to
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`the needs of the case.” FED. R. CIV. P. 26(b)(1). The party seeking discovery must first “establish
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`the threshold burden of relevancy.” Leath v. Tracer Constr. Co., No. 1:08-CV-358, 2009 U.S. Dist.
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`LEXIS 147937, at *9 (E.D. Tex. Apr. 8, 2009) (Giblin, J.). “Even if relevant, discovery is not
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`permitted where no need is shown, or compliance would be unduly burdensome, or where harm to
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`the person from whom discovery is sought outweighs the need of the person seeking discovery of
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`the information.” Micro Motion, Inc. v. Kane Steel Co., Inc., 894 F.2d 1318, 1323 (Fed. Cir. 1990)
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`(emphasis in original) (citing FED. R. CIV. P. 26(b)(1)); American Standard, Inc. v. Pfizer Inc., 828
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`F.2d 734,739-42 (Fed. Cir. 1987)).
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`“As a general matter, courts across the country that have addressed the issue have held that
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`litigation funding information is generally irrelevant to proving the claims and defenses in a case.”
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`Fulton v. Foley, No. 17-CV-8696, 2019 U.S. Dist. LEXIS 209585, at *5 (N.D. Ill. Dec. 5, 2019)
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`(collecting cases); see also United States ex rel. Fisher v. Homeward Residential, Inc., No. 4:12-CV-
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`461, 2016 U.S. Dist. LEXIS 32910, at *15 (E.D. Tex. Mar. 15, 2016) (Mazzant, J.) (denying motion
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`to compel in part and holding “litigation funding information is protected by the work product
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`doctrine”); Art Akiane LLC v. Art & SoulWorks LLC, No. 19 C 2952, 2020 U.S. Dist. LEXIS 171682,
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`at *6 (N.D. Ill. Sep. 18, 2020) (denying motion to compel). Courts including the Eastern District of
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`Texas have also excluded litigation funding evidence from trial numerous times. See, e.g., CXT Sys.,
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`Inc. v. Academy, Ltd., No. 2:18-cv-00171-RWS-RSP, D.I. 424 (E.D. Tex. Jan. 27, 2020) (Payne, J.)
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`(holding that all testimony evidence, testimony, or argument relating to any entity that provided
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`litigation funding should be excluded at trial); Eidos Display, LLC v. Chi Mei Innolux Corp., No.
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`6:11-CV-00201-JRG, 2017 U.S. Dist. LEXIS 157062, at *3 (E.D. Tex. May 26, 2017) (Love, J.)
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`3
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`Case 2:21-cv-00040-JRG Document 92 Filed 10/06/21 Page 4 of 8 PageID #: 2109
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`(same). Moreover, courts have also held that certain litigation funding evidence, such as the identity
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`of potential litigation funders, is not relevant whatsoever. See, e.g., Cont'l Circuits LLC v. Intel Corp.,
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`435 F. Supp. 3d 1014, 1019 (D. Ariz. 2020) (“the identifies of such persons or entities, if they exist,
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`have nothing to do with the actual financial interests or resources in this litigation, the potential bias
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`of witnesses, or possible disqualification of jurors.”); Space Data Corp. v. Google LLC, No. 16-CV-
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`03260 BLF (NC), 2018 U.S. Dist. LEXIS 228050, 2018 WL 3054797, at *1 (N.D. Cal. June 11, 2018)
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`(denying motion to compel discovery as to litigation funding considered by plaintiff and holding
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`that “potential litigation funding is a side issue at best.”) (emphasis in original).
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`III. ARGUMENT
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`A. Defendants have not demonstrated that topics 37, 38, and 40 are relevant nor that
`Defendants have any legitimate need for the information sought by their topics.
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`During the September 24 meet-and-confer teleconference between the parties, GTP asked
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`Defendants to demonstrate or justify the relevance of discovery about the financing or funding of
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`the litigation, communication with the litigation funder(s), and fee arrangements.
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`Topic 37 is solely related to resources from litigation funders, rather than any substantive
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`issue in the case. See Ex. A. Topic 37 seeks testimony about “All facts and circumstances relating
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`to GTP’s prospective or actual receipt of financial and/or other resources from litigation funders in
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`connection with the assertion of any Patent-in-Suit.”
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`Topic 38 is solely related to communications between GTP and litigation funders, rather
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`than any substantive issue in the case. See Ex. A. Topic 38 seeks testimony about “All facts and
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`circumstances relating to any communications between GTP and any prospective or actual litigation
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`funder.”
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`Topic 40 is solely related to fee arrangements, rather than any substantive issue in the case.
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`See Ex. A. Topic 40 seeks testimony about “All facts and circumstances relating to GTP’s fee
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`4
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`Case 2:21-cv-00040-JRG Document 92 Filed 10/06/21 Page 5 of 8 PageID #: 2110
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`arrangements with external legal counsel, including litigation fees, success fees, and pre-filing
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`investigation and analysis.”
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`Defendants have been unable to articulate any specific reason why the requested testimony
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`under these topics is relevant. Courts have rejected discovery requests seeking information on
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`litigation funding due to the lack of relevance, despite a variety of rationales that have been urged
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`by other defendants. See, e.g., Fulton, 2019 U.S. Dist. LEXIS 209585, at *5-8 (rejecting
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`defendant’s arguments that litigation funding information was relevant to (1) plaintiff’s claim of
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`lost wages and financial damages, (2) determining a reasonable settlement, and/or (3) plaintiff’s
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`bias).2
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`And even if Defendants could show that the requested discovery were somehow relevant
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`to the claims or defenses in this case, which it is not, they cannot show that they need the requested
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`information to mount a defense against the asserted patents. See, e.g., United States ex rel. Fisher,
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`2016 U.S. Dist. LEXIS 32910, at *17 (denying motion to compel litigation funding documents, in
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`part because defendants did not demonstrate a “substantial need” for the documents). Defendants
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`simply have no legitimate basis or need for seeking discovery about litigation funding,
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`communications with litigation funder(s), or fee arrangements—and their efforts in this regard is
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`a waste of Court and party resources.
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`2 Courts have also generally held that litigation funding documents are protected by the
`work product doctrine, because the documents are used to aid in possible future litigation. See,
`e.g., Fulton, 2019 U.S. Dist. LEXIS 209585, at *9-11 (collecting cases); United States ex rel.
`Fisher, 2016 U.S. Dist. LEXIS 32910, at *15 (“litigation funding information is protected by the
`work product doctrine”).
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`Case 2:21-cv-00040-JRG Document 92 Filed 10/06/21 Page 6 of 8 PageID #: 2111
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`B. GTP is entitled to relief.
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`As discussed above, Defendants have refused to withdraw the topics from the Notice,
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`despite their privileged nature and lack of relevance, and the resulting conflict with the cited
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`authorities. It is well-settled that discovery is a tool to assist the parties in focusing the case and
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`identifying evidence that is relevant to the dispute. See FED. R. CIV. P. 26 Advisory Committee
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`Note, 1983 amend. It is not a mechanism for Defendants to depose witnesses about any subject in
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`which Defendants have a keen but irrelevant interest. Accordingly, GTP respectfully requests a
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`protective order limiting Defendants’ Notice from inquiring into topics 37, 38, and 40.
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`IV. CONCLUSION
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`For the foregoing reasons, GTP respectfully requests that the Court issue a protective order
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`striking topics 37, 38, and 40 of Defendants’ Notice and preventing discovery into any litigation
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`funding or fee agreement issues.
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`Dated: October 6, 2021
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`Respectfully submitted,
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`By: /s/ Fred I. Williams
`Fred I. Williams
`Texas State Bar No. 00794855
`Michael Simons
`Texas State Bar No. 24008042
`Robert Daniel Garza
`Texas State Bar No. 24097730
`Robert Rhodes
`Texas State Bar No. 24116958
`WILLIAMS SIMONS & LANDIS PLLC
`327 Congress Ave., Suite 490
`Austin, TX 78701
`Tel: 512-543-1354
`fwilliams@wsltrial.com
`msimons@wsltrial.com
`dgarza@wsltrial.com
`rrhodes@wsltrial.com
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`Case 2:21-cv-00040-JRG Document 92 Filed 10/06/21 Page 7 of 8 PageID #: 2112
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`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
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`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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`Kevin S. Kudlac
`Texas Bar No. 00790089
`Kudlac PLLC
`1916 Wimberly Lane
`Austin, TX 78735
`Tel: 512-656-5743
`kevin@kudlacIP.com
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`Attorneys for Plaintiff
`Gesture Technology Partners, LLC.
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`Case 2:21-cv-00040-JRG Document 92 Filed 10/06/21 Page 8 of 8 PageID #: 2113
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that on October 6, 2021 the undersigned caused a copy
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`of the foregoing document to be served on all counsel of record, via the Court’s CM/ECF system,
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`pursuant to the Federal Rules of Civil Procedure.
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`By: /s/ Fred I. Williams
`Fred I. Williams
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`CERTIFICATE OF CONFERENCE
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`The undersigned hereby certifies that on October 6, 2021, counsel for GTP (D. Garza) and
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`Defendants (Boris Lubarsky) met and conferred pursuant to CV-7(h). Defendants’ counsel
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`indicated that Defendants are opposed to the relief sought in this motion.
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`By: /s/ Fred I. Williams
`Fred I. Williams
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