Case 4:23-cv-01147-ALM Document 84 Filed 02/12/25 Page 1 of 16 PageID #: 5841
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`Case 4:23-cv-01147-ALM Document 84_Filed 02/12/25 Page 1of 16 PagelD #: 5841
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE EASTERN DISTRICT OF TEXAS
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`SHERMAN DIVISION
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`R2 Solutions LLC,
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`Plaintiff,
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`V.
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`Civil Action No. 4:23-cv-01147-ALM
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`Jury Trial Demanded
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`Defendant.
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`MOTION TO COMPEL DISCOVERY AND AMEND THE SCHEDULING ORDER
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`PLAINTIFF R2 SOLUTIONS LLC’S
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`

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`Case 4:23-cv-01147-ALM Document 84 Filed 02/12/25 Page 2 of 16 PageID #: 5842
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`FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER
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`TABLE OF CONTENTS
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`INTRODUCTION .............................................................................................................. 1
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`RELEVANT CASE HISTORY .......................................................................................... 2
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`THE COURT SHOULD COMPEL DATABRICKS TO PRODUCE RELEVANT
`SOURCE CODE AND TECHNICAL DOCUMENTS ...................................................... 8
`
`THE COURT SHOULD AMEND THE SCHEDULING ORDER TO GIVE R2 TIME
`TO ADDRESS THE NEW MATERIALS IN AMENDED INFRINGEMENT
`CONTENTIONS AND EXPERT REPORTS .................................................................. 10
`CONCLUSION ................................................................................................................. 11
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`
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`
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`I.
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`II.
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`III.
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`IV.
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`V.
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`ii
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`FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER
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`TABLE OF AUTHORITIES
`
`Cases
`
`Edward D. Ioli Tr. v. Avigilon Corp.,
`No. 2:10-cv-605-JRG, 2012 U.S. Dist. LEXIS 164425 (E.D. Tex. Nov. 16, 2012) ................... 9
`
`
`Forterra Sys. v. Avatar Factory,
`No. C-05-04472 PVT, 2006 U.S. Dist. LEXIS 63100 (N.D. Cal. Aug. 22, 2006) ..................... 9
`
`
`Infernal Tech., LLC v. Microsoft Corp.,
`No. 2:18-CV-00144-JRG, 2019 U.S. Dist. LEXIS 186444 (E.D. Tex. May 3, 2019)................ 8
`
`
`Reliance Ins. Co. v. La. Land & Expl. Co.,
`110 F.3d 253 (5th Cir. 1997) ..................................................................................................... 10
`
`
`S&W Enters., L.L.C. v. SouthTrust Bank of Ala., NA,
`315 F.3d 533 (5th Cir. 2003). .................................................................................................... 10
`
`
`SSL Servs., LLC v. Citrix Sys., Inc.,
`No. 2:08-cv-158-TJW, 2010 U.S. Dist. LEXIS 11470 (E.D. Tex. Feb. 10, 2010). ................... 8
`
`
`Rules, Statutes, and Authorities
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`Fed. R. Civ. P. 16(b)(4)................................................................................................................. 10
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`Fed. R. Civ. P. 26 .......................................................................................................................... 10
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`Fed. R. Civ. P. 26(b)(1)................................................................................................................... 8
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`Fed. R. Civ. P. 30(b)(6)................................................................................................................... 6
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`Local Civil Rule 26(d). ................................................................................................................... 8
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`Local Patent Rule 3-1(g). ............................................................................................................ 4, 5
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`Local Patent Rule 3-4.................................................................................................................. 4, 5
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`Local Patent Rule 3-4(a) ................................................................................................................. 9
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`
`
`
`
`
`
`
`iii
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`FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER
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`Plaintiff R2 Solutions LLC (“R2”) hereby moves the Court to compel Defendant
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`Databricks, Inc. (“Databricks”) to produce relevant source code and accompanying technical
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`documentation that R2 learned of less than two weeks ago. Relatedly, and reluctantly, R2 also
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`seeks an order amending the case schedule giving R2 and its experts the time required to examine
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`the new materials and elucidate them in R2’s infringement contentions and expert reporting.
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`I.
`
`INTRODUCTION
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`This is an unusual case. Throughout discovery, Databricks has tried to force R2 to accept
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`that the sole infringing functionality of the accused Databricks platform is open-source. This is for
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`two reasons. One is to attempt to establish an open-source license defense that, if dignified, would
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`end the case. The other is to obfuscate the fact that Databricks implements wholly-proprietary
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`infringing technology that it has hidden from R2 at all costs—until now—when its existence
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`slipped from the lips of a Databricks Founder at deposition. Despite the unearthing of infringing
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`functionality that should have been disclosed months ago, Databricks refuses to produce the code
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`(and attendant technical documentation) hoping that the late stage of this case will shield it from
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`disclosure; thus keeping the nuclear nature of its disputed license defense in play.
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`It bears noting here that R2 has needed to threaten Court intervention on numerous
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`occasions to elicit even the most basic discovery from Databricks. For instance, Databricks only
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`yesterday released relevant damages-related data with the discovery deadline eight days away. The
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`parties have conducted countless meet-and-confers in which Databricks laboriously required
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`needless explanations of relevance, pressed baseless objections, and finally agreed to
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`supplementation. Yet, even then, Databricks failed to deliver as agreed, postponed further meet
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`and confers due to lead and local availability, and claimed that issues were not ripe for discovery
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`conference (let alone motion practice) because the dialogue requirements had not been properly
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`1
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`exhausted. It is an endless loop with no purpose but delay while Databricks awaits the fate of its
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`mandamus petition.
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`Specific to this motion, less than two weeks ago, Databricks’ discovery tactics proved
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`worse than what R2 imagined—Databricks has been dishonest. During the January 24, 2025
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`deposition of one of Databricks’ founders, R2 learned for the first time that
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` Ex. 11 (Xin Depo.) at 276:19-21. In other
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`words, Databricks insisted that only Spark was relevant in this case while concealing that it has a
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`, which Databricks acknowledges is at the “heart of
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`this case.” ECF 35 at 1. Databricks should be compelled to produce the code and documents for
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`this
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`, and R2 asks that the Court allow appropriate amendments to the case schedule
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`permitting R2 the time necessary to include these materials in its infringement case.
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`II.
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`RELEVANT CASE HISTORY
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`R2 filed this case on December 28, 2023, accusing of infringement the “Databricks Data
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`Intelligence Platform/Databricks Lakehouse Platform, and any other platform(s) offered or
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`provided by Databricks that utilize Apache Spark or any other similar functionality.” ECF 1, ¶ 7.
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`R2 subsequently served its preliminary infringement contentions on June 21, 2024 identifying
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`certain Spark functionality as exemplifying Databricks’ infringing functionality. In turn,
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`Databricks served its invalidity contentions and asserted compliance with P.R. 3-4 by producing
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`publicly-available, open-source Apache Spark code.2 See, e.g., Ex. 2 at 44. In other words,
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`
`1 Numbered exhibits cited in this motion are included with the declaration of Carder W. Brooks,
`which is Exhibit A to this motion.
`2 “Open source software is software developed and maintained through open collaboration. It is
`made available for anyone to use, examine, alter and redistribute however they like, typically at
`no cost.” https://www.ibm.com/think/topics/open-source. The Apache Software Foundation was
`2
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`Databricks downloaded Apache Spark code from the internet and produced it as its own as the
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`lone accused instrumentality in this case.
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`Shortly thereafter, R2 sent a letter to Databricks asking that it make its own code (as
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`opposed to simply the open-source code) available for inspection. See Ex. 3 at 1. Databricks
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`responded that it had complied with P.R. 3-4 by producing “all versions of source code for the
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`accused Apache Spark functionality.” Ex. 4 at 1. Databricks also refused to produce any additional
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`code until R2 identified “with specificity the accused functionality for which source code has not
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`been produced, what specific source code R2 is now requesting, and how that source code is
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`purportedly proportional to the needs of the case.” Id. In that same communication, Databricks
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`raised for the first time that it required a new protective order before it would produce any of its
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`own code. Id. R2 sent a draft protective order for this purpose and explained that Databricks’
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`demand that R2 identify what code was missing was unworkable because “R2 obviously has no
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`way of knowing how Databricks’ products use Spark, what code integrates Spark into Databricks’
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`products, what modifications Databricks has made to Spark within its products, what code (i.e.,
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`Spark or custom) Databricks actually uses to perform infringing functionality, how the Databricks’
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`product interfaces with data storage, or really anything about the code that constitutes Databricks’
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`Data Intelligence Platform or Lakehouse Platform.” Ex. 5 at 3.
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`This led to a weeks-long dispute regarding the terms of the protective order and Databricks’
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`source code that Databricks drew out as long as possible while its motion to transfer venue was
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`pending. Critically, during this period, Databricks committed (after significant prodding from R2)
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`formed to “provide a foundation for open, collaborative software development projects” and
`oversees a multitude of open source software projects, including Apache Spark. See, e.g.,
`https://www.apache.org/foundation/how-it-works/. Databricks has grown into one of the largest
`privately-held companies in the country on the back of Apache Spark (that its personnel were
`instrumental in developing).
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`
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`3
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`to produce “Databricks code showing how Spark is implemented within Databricks’ platform and
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`code in the accused instrumentalities similar to the accused Spark functionalities.” Ex. 6 at 14
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`(emphasis added); see also id. at 13 (confirming the scope of expected source code); 1 (confirming
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`Databricks’ commitment on a meet and confer to produce the agreed scope of source code). In
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`other words, Databricks confirmed that it would produce its internal source code with functionality
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`similar to Apache Spark (as it should have done months before). Shortly thereafter, out of an
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`abundance of caution, R2 served first supplemental infringement contentions with citations to the
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`already-produced open-source Spark. See generally Ex. 7.3
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`A few weeks later, Databricks served its first supplemental response to R2’s Interrogatory
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`No. 2 regarding how the accused platform performs the functions identified in R2’s contentions.
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`See Ex. 8 at 11. Databricks explained only that the platform
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` Id. Ultimately, the parties could not agree to source code provisions in the protective
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`order. The Court ruled on the parties’ dispute and entered a new protective order on November 12,
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`2024. See ECF 60, 61.
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` See, e.g., Ex. 9 at 1. This was problematic for two reasons.
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`3 While R2 understood that Databricks would be producing additional code, Databricks had
`already produced Apache Spark code and represented that such code was sufficient to show how
`the platform functions. Thus, while R2 certainly disagreed that Databricks had complied with P.R.
`3-4, R2 nevertheless provided supplemental contentions to ensure that there could be no question
`that R2 complied with P.R. 3-1(g).
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`4
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`|
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` See Ex. 10 (Rosen Depo.) at 112:17-114:19; Ex. 11 (Davis Depo.) at 27:5-18; 31:13-33:5.
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`5
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`otISco also Ex. 10
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`(Rosen Depo.) and Ex. 11 (Davis Depo.) as footnoted below.®
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`Based ontheserepresentations, and with the endof fact discovery approaching,’ R2 agreed
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`that it would forego seeking relief from the Court if Databricks would stipulate that the open-
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`source Apache Sparkfiles cited in R2’s supplemental contentions are representative ofDatabricks’
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`internal modified versions of those samefiles. Counsel for Databricks also indicated they would
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`considerin good faith similarly stipulating as to any other open-source Apache Spark code that R2
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`mayinclude in later amended contentions. Ex. A, § 22. The parties entered into a stipulation filed
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`with the Court on December 19. See ECF 73. This solidified for R2 that Databricks was being
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`truthful that Apache Spark told the whole story and thatPe
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`ee. It also bears mention that Databricks wasintent on
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`including in the stipulation that R2 would notbe entitled to further source code discovery absent
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`a showing of good cause.
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`But then, a few weeks after the stipulation, on January 24, 2025, R2 deposed Databricks’
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`co-founder and 30(b)(6) designee, Reynold Xin. In discussing the functionality of the accused
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`platform, Mi. Xin expinednt
`SS 2ices
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`®° Testimony
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`from Databricks’ 30(b)(6) witness also indicated that Ex. 10 (Rosen Depo.) at 146:17-24; see also Ex. 11 (Davis
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`Depo.) at 34:5-11 (“[Photon] 1s aimed to improve performance on top of Spark.”)
`7 Atthis pointin time, fact discovery wassetto close on January 20, 2025. See ECF 74.
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`6
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`detailing all of this. See generally Ex. 12. The parties met and conferred on January 29. Databricks
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`refused to produce
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` The parties engaged in additional
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`email correspondence in which Databricks reiterated its positions. See Ex. 13 at 1-5.
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`III. THE COURT SHOULD COMPEL DATABRICKS TO PRODUCE RELEVANT
`SOURCE CODE AND TECHNICAL DOCUMENTS
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`This Court has observed that “[t]he rules of discovery “are to be accorded a broad and
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`liberal treatment to effect their purpose of adequately informing litigants in civil trials.” Infernal
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`Tech., LLC v. Microsoft Corp., No. 2:18-CV-00144-JRG, 2019 U.S. Dist. LEXIS 186444, at *3
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`(E.D. Tex. May 3, 2019); Fed. R. Civ. P. 26(b)(1). The Local Rules provide further guidance on
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`relevance, instructing that information is “relevant to any party’s claim or defense” if, among other
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`things, “it is information that is likely to have an influence on or affect the outcome of a claim or
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`defense; … that deserves to be considered in the preparation, evaluation, or trial of a claim or
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`defense; or … that reasonable and competent counsel would consider reasonably necessary to
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`prepare, evaluate, or try a claim or defense.” L.R. CV-26(d). It is also relevant even if “it includes
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`information that would not support the disclosing parties’ contentions.” Id. “Once the moving party
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`establishes that the materials requested are within the scope of permissible discovery, the burden
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`shifts to the party resisting discovery to show why the discovery is irrelevant, overly broad, or
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`unduly burdensome or oppressive, and thus should not be permitted.” SSL Servs., LLC v. Citrix
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`Sys., Inc., No. 2:08-cv-158-TJW, 2010 U.S. Dist. LEXIS 11470, at *3 (E.D. Tex. Feb. 10, 2010).
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`The Court should require Databricks to produce all source code and related technical
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`documentation for
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`. As discussed above, Databricks’ (very technically inclined)
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`co-founder confirmed that
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` R2 had no way of
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`knowing that
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` until the deposition. It is not publicly-available, and Databricks hid it
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`8
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`from R2. R2 also had no way of knowing
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`discussed above, Databricks led R2 to believe that
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` As
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` R2 discovered Databricks’ misrepresentations less than two weeks ago, and Mr.
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`Xin’s testimony leaves no doubt that the undisclosed Databricks code and documents are relevant.
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`Code and related technical documentation for
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` are also critically
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`important for R2. Indeed, the apparent reason for Databricks’ conduct is that it hopes to sustain an
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`open-source license defense that would end the case. While R2 disputes the license defense, there
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`is no question that the defense is inapplicable to the undisclosed proprietary functionality. This is
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`what Databricks fears and is exactly why discovery into
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` is important.
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`Databricks induced R2 to enter the source code stipulation by misrepresenting its accused
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`platform. Indeed, as discussed above, Databricks intentionally concealed this functionality from
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`R2 despite being obligated to disclose it many months ago. See Edward D. Ioli Tr. v. Avigilon
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`Corp., No. 2:10-cv-605-JRG, 2012 U.S. Dist. LEXIS 164425, at *8-9 (E.D. Tex. Nov. 16, 2012)
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`(“[Defendant’s] bare minimum production shirks this responsibility and its attempt to use a
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`grammatically technical reading of P.R. 3-4(a) as a shield to avoid production of its source
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`code offends the discovery principles driving this District’s patent rules. P.R. 3-4(a) requires
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`[Defendant] to produce more than the bare minimum of what it believes is sufficient, including
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`but not limited to any and all source code, specifications, schematics, flow charts, artwork,
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`formulas, or other documentation in its possession.”); see also Forterra Sys. v. Avatar Factory,
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`No. C-05-04472 PVT, 2006 U.S. Dist. LEXIS 63100, at *4 (N.D. Cal. Aug. 22, 2006) (“[T]he
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`entire source code is relevant under Rule 26 … . Because the source code is at the heart of the
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`dispute, [plaintiff’s] expert must have access to the entire source code.”). The Court should thus
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`compel such discovery.
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`9
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`IV.
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`THE COURT SHOULD AMEND THE SCHEDULING ORDER TO GIVE R2 TIME
`TO ADDRESS THE NEW MATERIALS IN AMENDED INFRINGEMENT
`CONTENTIONS AND EXPERT REPORTS
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`Under Federal Rule of Civil Procedure 16(b)(4), a scheduling order “may be modified only
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`for good cause and with the judge’s consent.” To establish good cause, the moving party must
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`demonstrate that it cannot reasonably meet the scheduling order’s deadlines despite diligent
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`efforts. See S&W Enters., L.L.C. v. SouthTrust Bank of Ala., NA, 315 F.3d 533, 535 (5th Cir. 2003).
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`Courts apply a four-part test in determining if good cause exists: “‘(1) the explanation for the
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`failure to [timely amend contentions and serve expert reports]; (2) the importance of the [amended
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`contentions and expert reports]; (3) potential prejudice in allowing the [amended contentions and
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`expert reports]; and (4) the availability of a continuance to cure such prejudice.’” Reliance Ins. Co.
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`v. La. Land & Expl. Co., 110 F.3d 253, 257 (5th Cir. 1997)).
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`Under the current scheduling order, fact discovery closes on February 13, and opening
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`expert reports are due on February 20. If the Court grants R2’s motion to compel, there is no time
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`for R2 to review the materials and address them in opening expert reports, let alone garner relevant
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`testimony. Indeed, it is unlikely Databricks could even produce the materials before the reporting
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`deadline. The Court should therefore amend the scheduling order by moving all deadlines back by
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`sixty days to permit R2 the time necessary to address the new materials.10
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`Good cause supports this amendment. First, R2 has acted diligently. The only reason R2
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`needs more time is that it uncovered less than two weeks ago the proprietary and previously-
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`undisclosed functionality going to the heart of R2’s infringement case. R2 is also filing this motion
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`prior to the deadline for motions to compel set forth in the Scheduling Order. See ECF 75. Second,
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`the requested evidence is potentially critical to R2’s case, as it could demonstrate another way in
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`10 If the Court is inclined to amend the scheduling order, R2 is willing to meet and confer with
`Databricks to propose a new scheduling order consistent with the Court’s ruling.
`10
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`

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`which Databricks infringes the patent-in-suit without the use of Apache Spark. If R2 does not have
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`more time to conduct discovery on this newly-revealed functionality, R2 will be limited to
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`pursuing infringement by Apache Spark, which Databricks is vying to eliminate from the case via
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`implied license. Third, giving R2 time to address the materials is not prejudicial to Databricks.
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`Databricks had an affirmative obligation to produce these materials with its invalidity contentions
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`almost seven months ago, and amending the schedule would simply give R2 enough time to
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`address materials it could have already addressed absent Databricks’ gamesmanship. Databricks
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`would also be able to fully respond to R2’s amended infringement contentions and its expert
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`reporting.
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`In sum, R2 just discovered new evidence that is material to its infringement claims because
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`Databricks hid it throughout discovery. R2 has acted promptly in seeking to adjust the case
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`schedule to allow it to address this evidence. Given the importance of the new evidence and R2’s
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`diligence, good cause exists to extend the schedule.
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`V.
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`CONCLUSION
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`For the reasons set forth above, R2’s motion should be granted, and Databricks should be
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`ordered to comply with its discovery obligations and produce the
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` code and
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`related technical documentation. The Court should also amend the scheduling order to allow R2
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`time to address this evidence in its infringement case.
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`11
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`Dated: February 5, 2025
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`
`
`
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`Respectfully Submitted,
`
`By: /s/ Carder W. Brooks
`EDWARD R. NELSON III
`STATE BAR NO. 00797142
`CHRISTOPHER G. GRANAGHAN
`STATE BAR NO. 24078585
`JOHN P. MURPHY
`STATE BAR NO. 24056024
`CARDER W. BROOKS
`STATE BAR NO. 24105536
`NELSON BUMGARDNER CONROY PC
`3131 West 7th Street, Suite 300
`Fort Worth, Texas 76107
`817.377.9111
`ed@nelbum.com
`chris@nelbum.com
`murphy@nelbum.com
`carder@nelbum.com
`
`COUNSEL FOR
`PLAINTIFF R2 SOLUTIONS LLC
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`CERTIFICATE OF CONFERENCE
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`I hereby certify that counsel for R2 Solutions has complied with the meet and confer
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`requirements in Local Rule CV-7(h) and FRCP 37(a)(1) and that the accompanying motion is
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`opposed. Counsel for the parties conducted the necessary formal meet and confers and participated
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`in a telephonic hearing with the Court, at which the Court authorized this filing.
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`/s/ Carder W. Brooks
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`12
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`CERTIFICATE OF SERVICE
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`I hereby certify that on February 5, 2025, I electronically filed the foregoing instrument
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`
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`with the Clerk of the Court using the CM/ECF system, which will send notification of such filing
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`to all counsel of record.
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`/s/ Carder W. Brooks
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`CERTIFICATE OF AUTHORIZATION
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`I hereby certify that under local rule CV-5(a)(7), the foregoing document is filed under seal
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`pursuant to the Court’s Protective Order entered in this matter.
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`
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`/s/ Carder W. Brooks
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`13
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