Case 2:22-cv-00263-JRG-RSP Document 124-4 Filed 09/07/23 Page 1 of 8 PageID #:
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`EXHIBIT C
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`EXHIBIT C
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`Case 2:22-cv-00263-JRG-RSP Document 124-4 Filed 09/07/23 Page 2 of 8 PageID #:
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`AGIS SOFTWARE DEVELOPMENT, LLC,( CAUSE NO. 2:22-CV-263-JRG
` )
`Plaintiff,
` (
` )
` (
`
`vs.
` )
`SAMSUNG ELECTRONICS CO., LTD., (
` ) MARSHALL, TEXAS
`et al.,
`
` ( AUGUST 22, 2023
`Defendants.
` ) 9:00 A.M.
`______________________________________________________________
`
`______________________________________________________________
`MOTION HEARING
`
`BEFORE THE HONORABLE ROY S. PAYNE
`UNITED STATES MAGISTRATE JUDGE
`______________________________________________________________
`
`SHAWN McROBERTS, RMR, CRR
`100 E. HOUSTON STREET
`MARSHALL, TEXAS 75670
`(903) 923-8546
`shawn_mcroberts@txed.uscourts.gov
`
`Shawn M. McRoberts, RMR, CRR
`Federal Official Court Reporter
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`Case 2:22-cv-00263-JRG-RSP Document 124-4 Filed 09/07/23 Page 3 of 8 PageID #:
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`2
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`A P P E A R A N C E S
`FOR THE PLAINTIFFS: FABRICANT, LLP - NY
` 230 PARK AVENUE, 3RD FLOOR W
` NEW YORK, NEW YORK 10169
` (212) 257-5797
` BY: MR. ALFRED FABRICANT
` MR. ENRIQUE ITURRALDE
` MR. JACOB OSTLING
` McKOOL SMITH, P.C. - MARSHALL
` 104 E. HOUSTON ST., SUITE 300
` MARSHALL, TEXAS 75670
` (903) 923-9000
` BY: MR. SAMUEL BAXTER
`FOR THE DEFENDANTS: O'MELVENY & MYERS -
` SAN FRANCISCO
` TWO EMBARCADERO CENTER
` 28TH FLOOR
` SAN FRANCISCO, CA 94111
` (415) 984-8700
` BY: MS. LUANN SIMMONS
` MR. MARK LIANG
` O'MELVENY & MYERS, LLP
` 2501 NORTH HARWOOD STREET
` SUITE 1700
` DALLAS, TEXAS 75201-1663
` (972) 360-1900
` BY: MR. GRANT GIBSON
` MANN, TINDEL, THOMPSON
` 112 E. LINE STREET, SUITE 304
` TYLER, TEXAS 75702
` (903) 657-8540
` BY: MR. BLAKE THOMPSON
` GILLAM & SMITH, LLP
` 303 SOUTH WASHINGTON AVENUE
` MARSHALL, TEXAS 75670
` (903) 934-8450
` BY: MS. MELISSA SMITH
`OFFICIAL REPORTER: SHAWN M. McROBERTS, RMR, CRR
` 100 E. HOUSTON STREET
` MARSHALL, TEXAS 75670
` (903) 923-8546
`
`Shawn M. McRoberts, RMR, CRR
`Federal Official Court Reporter
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`Case 2:22-cv-00263-JRG-RSP Document 124-4 Filed 09/07/23 Page 4 of 8 PageID #:
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`THE COURT: Good morning. Please be seated.
`For the record, we're here for the motion hearing in AGIS
`Software Development versus Samsung Electronics, which is Case
`No. 2:22-263 on our docket.
`Would counsel state their appearances for the record?
`MR. BAXTER: Good morning, Your Honor. Sam Baxter
`with McKool Smith along with Fred Fabricant, Enrique
`Iturralde, and Jacob Ostling. And we're ready, Your Honor.
`THE COURT: All right. Thank you, Mr. Baxter.
`MR. THOMPSON: Good morning, Your Honor. Blake
`Thompson here for Samsung. With me today is Melissa Smith,
`Luann Simmons, Mark Laing, and Grant Gibson. And we're ready
`to proceed.
`THE COURT: All right. Thank you, Mr. Thompson.
`Let me see. We are here on Plaintiff's motion, so I'll
`turn it over first to counsel for Plaintiff.
`MR. FABRICANT: Good morning, Your Honor. Fred
`Fabricant for the Plaintiff.
`THE COURT: Good morning, Mr. Fabricant.
`MR. FABRICANT: Your Honor, the first motion is a
`motion to amend the infringement contentions. The original
`infringement contentions were filed -- were served in December
`of 2022, and the proposed amendments follow a second amended
`complaint which was filed in the case on June 16 of 2023. And
`immediately following the filing of the second amended
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`Federal Official Court Reporter
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`Case 2:22-cv-00263-JRG-RSP Document 124-4 Filed 09/07/23 Page 5 of 8 PageID #:
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`that gives them a reason to now need to add them because they
`couldn't have been added before. They absolutely could have
`been added in this case according to the Court's schedule for
`contentions. There would be no need to amend.
`THE COURT: All right. Thank you, Ms. Simmons.
`MR. SIMMONS: Thank you, Your Honor.
`THE COURT: Mr. Fabricant?
`MR. FABRICANT: Yes, Your Honor.
`Your Honor, let me first start by addressing Your Honor's
`question about where the Court is most concerned, which is
`delay. And I think that is something that I want to make sure
`there's clear understanding.
`As I stated at the outset, there have been no depositions
`in this case, and we believe all of the documents and
`information that we would need from Google as far as
`Plaintiff's discovery from Google have already been produced,
`but we can't use them here, Your Honor, because of the
`protective order and the ITC, but they've been gathered,
`they've been Bates stamped, they've been produced, we have the
`same counsel. That would be the push of a button producing
`the same documents and information in this case, including the
`source code, Your Honor.
`THE COURT: You know, you have commented a couple of
`times on the same counsel representing Google as well as
`Samsung. I'm not sure that doesn't make it more difficult. I
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`Federal Official Court Reporter
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`Case 2:22-cv-00263-JRG-RSP Document 124-4 Filed 09/07/23 Page 6 of 8 PageID #:
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`think there are conflict issues that would have to be resolved
`in determining whether or not that would continue in a case
`where Google became a third party whose technology was at
`issue. But I can tell you, the first thing that I do know is
`that -- the fact that a second amended complaint was filed
`which includes FMD really has very little bearing on the
`question of whether or not the infringement contentions can be
`amended. It is -- we allow the amendment of complaints of
`rite, but that doesn't mean that they can accuse new products
`without leave to amend to contentions, which gets us into this
`analysis.
`I am not persuaded that there is so little prejudice that
`it justifies bringing FMD into this case at this stage, but I
`recognize that there is significant judicial inefficiency in
`requiring a new suit for something that could otherwise be
`included. And if the addition of FMD to this case is
`sufficiently important to you to justify a continuance of the
`current dates to allow what would be a normal discovery period
`for the Defendant on those issues, then that's something we
`can talk about. But where things stand right now, I just
`don't think that that works.
`MR. FABRICANT: Your Honor, I appreciate the Court's
`comments. I did want to say I think that some of the argument
`with respect to prejudice -- and I've addressed the fact that
`the discovery is ready. I would advise the Court further that
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`Federal Official Court Reporter
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`Case 2:22-cv-00263-JRG-RSP Document 124-4 Filed 09/07/23 Page 7 of 8 PageID #:
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`MR. SIMMONS: Thank you, Your Honor.
`THE COURT: Thank you.
`MR. FABRICANT: Your Honor, I would just -- may I
`make a comment to that point?
`THE COURT: Sure.
`MR. FABRICANT: We don't think that's necessary,
`and it's our position that it isn't necessary. But I would
`add for full disclosure here, if Samsung is able and willing
`to produce this highly protected confidential information from
`the ITC matter for all these various parties, then we would
`ask that they produce the Dinu transcript and the deposition
`exhibits to the Dinu transcript so that the Court can have a
`full picture of what's going on here rather than this
`selective review of some highly confidential protected
`information on a unilateral basis, but not willing to produce
`the full record that's relevant here, Your Honor.
`THE COURT: All right. Well, I will take that into
`account as well, Mr. Fabricant.
`And with that we are adjourned. Thank you.
`(End of hearing.)
`
`Shawn M. McRoberts, RMR, CRR
`Federal Official Court Reporter
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`Case 2:22-cv-00263-JRG-RSP Document 124-4 Filed 09/07/23 Page 8 of 8 PageID #:
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`I HEREBY CERTIFY THAT THE FOREGOING IS A
`CORRECT TRANSCRIPT FROM THE RECORD OF
`PROCEEDINGS IN THE ABOVE-ENTITLED MATTER.
`I FURTHER CERTIFY THAT THE TRANSCRIPT FEES
`FORMAT COMPLY WITH THOSE PRESCRIBED BY THE
`COURT AND THE JUDICIAL CONFERENCE OF THE
`UNITED STATES.
`
` 08/23/2023
`S/Shawn McRoberts
`__________________________DATE____________
`SHAWN McROBERTS, RMR, CRR
`FEDERAL OFFICIAL COURT REPORTER
`
`Shawn M. McRoberts, RMR, CRR
`Federal Official Court Reporter
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